[Federal Register Volume 81, Number 178 (Wednesday, September 14, 2016)]
[Notices]
[Pages 63249-63252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22032]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78791; File No. SR-ISEMercury-2016-14]


Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Add Specificity 
to the Definition of a Professional in the Exchange's Rules

September 8, 2016.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on August 30, 2016, ISE Mercury, LLC (``Exchange'') filed with the 
Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I, II, and III, below, which 
Items have been prepared by the Exchange. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to amend Exchange Rule 100(a)(37C) 
(Definitions) to add specificity to the definition of a Professional 
with respect to the manner in which the volume threshold will be 
calculated by the Exchange.
    The text of the proposed rule change is available on the Exchange's 
Web site at www.ise.com, at the principal office of the Exchange, and 
at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend the definition of ``Professional'' 
in Rule 100(a)(37C) to specify the manner in which the Exchange 
calculates orders to determine if an order should be treated as 
Professional Order.
Background
    Exchange Rule 100(a)(37C) currently states, that the term 
Professional Order means an order that is for the account of a person 
or entity that is not a Priority Customer. A Priority Customer means a 
person or entity that (i) is not a broker or dealer in securities, and 
(ii) does not place more than 390 orders in listed options per day on 
average during a calendar month for its own beneficial account(s).\3\ 
In order to properly represent orders entered on the Exchange, members 
are required to indicate whether orders are ``Professional Orders.'' To 
comply with this requirement, members are required to review their 
Priority Customers' activity on at least a quarterly basis to determine 
whether orders that are not for the account of a broker-dealer should 
be represented as Priority Customer Orders or Professional Orders.\4\
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    \3\ Rule 100(a)(37A).
    \4\ Orders for any customer that had an average of more than 390 
orders per day during any month of a calendar quarter must be 
represented as Professional Orders for the next calendar quarter. 
Members will be required to conduct a quarterly review and make any 
appropriate changes to the way in which they are representing orders 
within five days after the end of each calendar quarter. While 
Members only will be required to review their accounts on a 
quarterly basis, if during a quarter the Exchange identifies a 
customer for which orders are being represented as Priority Customer 
Orders but that has averaged more than 390 orders per day during a 
month, the Exchange will notify the Member and the Member will be 
required to change the manner in which it is representing the 
customer's orders within five days.
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    The Exchange accepts orders routed from other markets that are 
marked Professional Orders. The designation of Professional Order does 
not result in any different treatment of such orders for purposes of 
Exchange rules concerning away market protection. That is, all non-
broker or dealer orders, including those that meet the definition of 
Professional Orders, are treated equally for purposes of Exchange away 
market protection rules.\5\ The Exchange continues to believe that 
identifying Professional Orders based upon the average number of orders 
entered in qualified accounts is an appropriately objective approach to 
reasonably distinguish such persons and entities from retail investors 
or market participants.
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    \5\ See International Securities Exchange, LLC Rules at 1901, 
1902 and 1903, which are referenced in the Exchange's rules.
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Proposal
    The Exchange proposes to count each Professional Order, regardless 
of the options exchange to which the order was routed in determining 
Professional Orders.\6\
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    \6\ All order types count toward the 390 orders on average per 
day.
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Cancel and Replace
    A cancel and replace order is a type of order that replaces a prior 
order. The Exchange believes that the second order (the replacement 
order) should be counted as a new order. With respect to ``single-
strike algorithms,'' which are a series of cancel and replace orders in 
an individual strike which track the Best Bid and Offer (``BBO'') or 
National Best Bid and Offer (``NBBO''), these orders shall be counted 
as new orders.\7\ The Exchange believes that because the Priority 
Customer is specifically instructing the executing broker in the 
``single-strike algorithm'' scenario to cancel and replace these 
orders, that this type of activity is akin to market making in a 
Priority Customer account and should be counted, as a new order.
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    \7\ Cancel messages do not count as an order.
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Parent/Child Orders
    An order that converts into multiple subordinate orders to achieve 
an execution strategy shall be counted as one order per side and 
series, even if the order is routed away.\8\ An order that cancels and 
replaces a resulting subordinate order and results in multiple sides/
series shall be counted as a new order on each side and series. For 
purposes of counting Professional Orders, the manner in which the 
Priority Customer submitted the order and whether the order was on the 
same side and series will determine if the order will count as one 
order. If one Priority Customer order on the same side and series is 
subsequently broken-up by a broker into multiple orders for purposes of 
execution or routed away, this order will count as one order. The 
Exchange believes that the proposed amendment will provide more 
certainty to market participants in determining the manner in which the 
Exchange will compute the number of orders in listed

[[Page 63250]]

options per day on average during a calendar month for its own 
beneficial account(s) to determine the Professional Order designation.
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    \8\ An order which is placed for the beneficial account(s) of a 
person or entity that is not a broker or dealer in securities that 
is broken into multiple parts by a broker or dealer or by an 
algorithm housed at a broker or dealer or by an algorithm licensed 
from a broker or dealer. Strategies include volatility orders, for 
example.
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    In order to make clear when orders will count as new orders, the 
Exchange offers the following scenarios as examples.
     The Exchange proposes to count multiple orders that were 
submitted by the member as separate orders as multiple orders.
     The Exchange proposes to count a single order submitted by 
a member, which was automatically executed in multiple parts by the 
trading system, as one order, because the member did not intervene to 
create multiple orders. Another example is where an order was entered 
in the trading system and only partially filled, the order would count 
as one order. The subsequent fills, which could be multiple executions, 
would not count as additional orders in determining the 390 limit. The 
manner in which the order is ultimately executed, as one order or 
multiple orders, should not itself determine whether the activity 
qualified as a Professional Order; also the member did not intervene in 
that circumstance.
     The Exchange proposes to count orders, which result in 
multiple orders due to cancel and replacement orders, as new orders. 
This is because in this situation the member did intervene to create 
the subsequent orders.
     The Exchange proposes to count an order submitted by the 
Priority Customer as a single order, on the same side and series, as a 
single order despite the fact that a broker broke-up the order into 
multiple orders for purposes of execution.
    The Exchange previously issued a notice which described the manner 
in which it believed thresholds should be computed for determining if 
an order qualifies as a Professional Order.\9\ This rule supersedes the 
Exchange's notice.
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    \9\ See International Securities Exchange LLC's Regulatory 
Information Circular (2009-179) dated June 23, 2009.
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    The Exchange believes that there has been industry confusion as to 
which orders count toward the 390 contract threshold. The Exchange's 
proposal is intended to provide clarity and to continue to promote 
consistency in the treatment of orders as Professional Orders by filing 
a rule change similar to other options exchanges.\10\
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    \10\ NASDAQ BX, Inc, and NASDAQ Options Market LLC have similar 
rules in place for computing Professional orders. See BX Rules at 
chapter I, section 1(49). See NOM Rules at chapter I, section 1(48).
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    Below are some examples of the calculation of Professional Orders.
Example #1
    A Priority Customer has an order to buy 100 calls at a volatility 
level of 35. The order then generates a child order resulting in a 1.00 
bid for 100 options which is sent to Exchange A. After the underlying 
stock price ticks up 2 cents the child order is then adjusted to 
reflect a 35 level volatility which in this case (50 delta) results in 
a 1.01 bid sent to Exchange A replacing the current 1.00 bid.
    In determining the number of orders that attribute to the 390 order 
count, in this case, because the child order is being canceled and 
replaced in the ``same series'' this would only count as one (1) order 
for purposes of Professional designation calculation.
Example #2
    A Priority Customer has an order to buy 20k Vega at a 35 volatility 
level in symbol XYZ. The order then generates 50 child orders across 
different strikes. Throughout the day those 50 orders are adjusted as 
the stock moves resulting in the replacement of child orders to the 
tune of 5 times per order (50 x 5 cancels) resulting in 250 total 
orders generated to Exchange A.
    In determining the number of orders that attribute to the 390 order 
count, in this case, because the child orders generated are across 
multiple series it would be necessary to count all 250 orders.
    In addition to the above examples, the Exchange provides the below 
chart to demonstrate the manner in which it will count orders.

------------------------------------------------------------------------
                                            Singular         Multiple
------------------------------------------------------------------------
                         Single Strike Activity
------------------------------------------------------------------------
Priority Customer Order posted to 1                  x   ...............
 SRO order Book.......................
Priority Customer Order posted to                    x   ...............
 Multiple SRO order Books
 simultaneously.......................
Cancel/Replace Activity...............               x   ...............
Cancel/Replace Activity tracking BBO    ...............               x
 or NBBO..............................
------------------------------------------------------------------------
Singular--counts as a single order towards the 390 count.
Multiple--each order applies towards the 390 count.

    The Exchange proposes to implement this rule on October 3, 2016 to 
provide market participants with advance notice for their quarterly 
calculations. The Exchange will issue a Market Information Circular in 
advance to inform market participants of such date.

2. Statutory Basis

    The Exchange believes that its proposal is consistent with section 
6(b) of the Act,\11\ in general, and furthers the objectives of section 
6(b)(5) of the Act,\12\ in particular, in that it is designed to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general to protect investors and the public 
interest, by promoting the consistent application of its rules by 
further defining the manner in which the Exchange will compute the 
number of orders in listed options per day on average during a calendar 
month for its own beneficial account(s) for purposes of determining the 
Professional Order designation. Furthermore, the Exchange believes that 
specifying the manner in which the 390 threshold will be calculated 
within its Rules will provide members with certainty and provide them 
with insight as they conduct their own quarterly reviews for purposes 
of designating orders.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that counting all orders toward the number of 
orders, regardless of the options exchange to which the order was 
routed, will promote the consistent application of its rules by making 
clear that all order types shall be counted as well as all orders for 
the purpose of determining whether the definition of Professional Order 
has been met.
Cancel and Replace
    With respect to determining the Professional Order designation, a 
cancel and replace order which replaces a prior

[[Page 63251]]

order shall be counted as a second order. An order that is filled 
partially or in its entirety or is a replacement order that is 
automatically canceled or reduced by the number of contracts that were 
executed will not count as second order because it was not replaced. 
The Exchange believes that counting the replacement order as a second 
order is consistent with Exchange Rules because the replacement order 
is viewed as a new order with its own unique identifier.
    The Exchange believes that counting cancel and replace orders with 
``single-strike algorithms,'' which are a series of cancel and replace 
orders in an individual strike which track the BBO or NBBO, as new 
orders is consistent with the Act because the Priority Customer is 
specifically instructing the executing broker in the ``single-strike 
algorithm'' scenario to cancel and replace these orders. Tracking the 
BBO or NBBO \13\ is akin to market making on the Exchange in a Priority 
Customer account and should be counted as new orders. The Exchange 
believes that the Priority Customers order designation should be 
reserved for a Priority Customer.
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    \13\ Tracking the BBO or NBBO shall mean any parent order that 
consumes any self-regulatory organization order book data feed, or 
the OPRA feed, to generate automated child orders, and move with, or 
follow the Bid or Offer of the series in question.
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Parent/Child Orders
    The Exchange's adoption of the Professional Order was to treat 
orders in listed options per day on average during a calendar month in 
his or her own beneficial account differently from Priority Customer 
Orders for purposes of priority within the order book and pricing.\14\ 
For this reason, the Exchange is adopting rules concerning the 
computation of orders which convert into multiple subordinate orders 
for the purpose of determining the Professional Order designation. The 
Exchange's proposal to count multiple subordinate orders that achieve 
an execution strategy as one order per side and series and count an 
order that cancels and replaces a resulting subordinate order and 
results in multiple sides/series as a new order is consistent with the 
Act, because the Exchange is distinguishing where the member is 
actively entering orders that result in multiple orders and canceling 
and replacing orders that result in multiple orders versus where the 
member had no control of the resulting executions. Allowing orders on 
the same side of the market to be counted as a single order is 
consistent with the original intent of the Professional Order 
designation. The same side of market distinction protects Priority 
Customers. This practice is typically the type of transaction Priority 
Customers execute versus a Professional trader. Multiple related orders 
resulting from a large order filled in part, or an order which is 
cancelled and replaced several times are considered part of a related 
order. The Exchange does not desire to count large orders filled in 
part as multiple orders because the member did not intervene in the 
outcome of the execution. An order that results in several separate and 
unrelated orders would be counted as multiple orders because the member 
intervened in this circumstance.
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    \14\ See Exchange Rule 713 and the Exchange's Fee Schedule.
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    The Exchange believes that the proposed amendment will provide more 
certainty to market participants in determining the computation of the 
number of orders in listed options per day on average during a calendar 
month for its own beneficial account(s) to determine the Professional 
Order designation. The Exchange believes that there is confusion as to 
which orders count toward the 390 contract threshold. The Exchange 
proposes to provide clarity to its Rules with specific guidance as to 
the computation of Professional Orders, which it believes will promote 
consistency in the treatment of orders as Professional orders. The 
Exchange believes that this proposed guidance will promote consistency 
and permit the proper calculation of options orders to prevent members 
with high volume from receiving benefits reserved for Priority Customer 
Orders. The Professional Order designation focuses specifically on the 
number of orders generated.
    Priority is one of the marketplace advantages provided to Priority 
Customer orders on the Exchange. Priority Customer orders are given 
execution priority over non-Customer orders and quotations of market 
makers at the same price. Another marketplace advantage afforded to 
Priority Customer Orders on the Exchange is that members are generally 
not assessed transaction fees for the execution of Priority Customer 
Orders. The purpose of these marketplace advantages is to attract 
retail order flow to the Exchange by leveling the playing field for 
retail investors over market Professionals.\15\ The Exchange believes 
that permitting certain types of orders to be counted as a single order 
and other types of orders to be counted as multiple orders is 
consistent with the original intent of the Professional Order 
designation which was to continue to provide Priority Customer accounts 
with marketplace advantages and distinguish those accounts non-
Professional retail investors from the Professionals accounts some non-
broker-dealer individuals and entities have access to information and 
technology that enables them to Professionally trade listed options in 
the same manner as a broker or dealer in securities.\16\
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    \15\ Market Professionals have access to sophisticated trading 
systems that contain functionality not available to retail 
customers, including things such as continuously updated pricing 
models based upon real-time streaming data, access to multiple 
markets simultaneously and order and risk management tools.
    \16\ For example, some broker-dealers provided their 
Professional customers with multi-screened trading stations equipped 
with trading technology that allows the trader to monitor and place 
orders on all six options exchanges simultaneously. These trading 
stations also provide compliance filters, order managements tools, 
the ability to place orders in the underlying securities, and market 
data feeds.
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    Finally, the proposed guidance is being issued to stem confusion as 
to the manner in which options exchanges compute the Professional Order 
volume.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act because the Exchange will 
uniformly apply the rules to calculate volume on all members in 
determining Professional Orders. The designation of Professional Orders 
would not result in any different treatment of such orders for purposes 
of the Exchange's Rules concerning order protection or routing to away 
exchanges. The guidance is being issued to stem confusion as to the 
manner in which options exchanges compute the Professional Order 
volume.
Counting All Orders
    The Exchange believes that counting all orders entered by a 
Professional toward the number of orders, regardless of the options 
exchange to which the order was routed, does not create an undue burden 
on intra-market competition because this proposed rule change will be 
consistently applied to all members in determining Professional Orders.
Cancel and Replace
    The Exchange believes that its application of cancel and replace 
orders does not create an undue burden on intra-market competition 
because this application is consistent with Exchange Rules, where the 
replacement order is

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viewed as a new order. This treatment is consistent with the manner in 
which this order type is applied today within the order Book.
Parent/Child Orders
    The Exchange's treatment of subordinate orders does not create an 
undue burden on intra-market competition because allowing orders on the 
same side of the market to be counted as a single order is consistent 
with the original intent of the Professional Order designation which is 
to count distinct orders and focus on the number of orders generated.
    The Exchange does not believe that the proposed rule change will 
impose an undue burden on inter-market competition because other 
exchanges have adopted similar guidance.\17\ The Exchange believes that 
disparate rules regarding Professional Order designation, and a lack of 
uniform application of such rules, does not promote the best regulation 
and may, in fact, encourage regulatory arbitrage. The Exchange believes 
that it is therefore prudent and necessary to conform its rules to that 
of other options exchanges for purposes of calculating the threshold 
volume of orders to be designated as a Professional Order. This is 
particularly true where the Exchange's third-party routing broker-
dealers are members of several exchanges that have rules requiring 
Professional Order designations.
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    \17\ NASDAQ BX, Inc, and NASDAQ Options Market LLC have similar 
rules in place for computing Professional orders. See BX Rules at 
chapter I, section 1(49). See NOM Rules at chapter I, section 1(48).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to section 19(b)(3)(A)(iii) of the Act \18\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\19\
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    \18\ 15 U.S.C. 78s(b)(3)(a)(iii).
    \19\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File No. SR-ISEMercury-2016-14 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File No. SR-ISEMercury-2016-14. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File No. SR-ISEMercury-2016-14, and should 
be submitted on or before October 5, 2016.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-22032 Filed 9-13-16; 8:45 am]
BILLING CODE 8011-01-P