[Federal Register Volume 85, Number 15 (Thursday, January 23, 2020)]
[Notices]
[Pages 4051-4054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01097]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88003; File No. SR-NYSE-2019-54]


Self-Regulatory Organizations; New York Stock Exchange LLC; Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change To Permit the Exchange To List and Trade Exchange 
Traded Products

January 17, 2020.
    On October 3, 2019, New York Stock Exchange LLC (``Exchange'' or 
``NYSE'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to list and trade Exchange Traded Products that 
have a component NMS Stock listed on the Exchange or that are based on, 
or represent an interest in, an underlying index or reference asset 
that includes an NMS Stock listed on the Exchange. The proposed rule 
change was published for comment in the Federal Register on October 23, 
2019.\3\ On December 5, 2019, pursuant to Section 19(b)(2) of the 
Act,\4\ the Commission designated a longer period within which to 
approve the proposed rule change, disapprove the proposed rule change, 
or institute proceedings to determine whether to disapprove the 
proposed rule change.\5\ The Commission has received no comment letters 
on the proposal. This order institutes proceedings under Section 
19(b)(2)(B) of the Act \6\ to

[[Page 4052]]

determine whether to approve or disapprove the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 87329 (Oct. 17, 
2019), 84 FR 56864 (``Notice'').
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 87671 (Dec. 5, 
2019), 84 FR 67763 (Dec. 11, 2019). The Commission designated 
January 21, 2020, as the date by which it should approve or 
disapprove, or institute proceedings to determine whether to 
disapprove, the proposed rule change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
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I. Summary Description of the Proposal

    The Exchange proposes to expand the Exchange Traded Products 
(``ETPs'') that would be eligible to list and trade on the Exchange to 
include ETPs that have a component NMS Stock \7\ or that are based on, 
or represent an interest in, an underlying index or reference asset 
that includes an NMS Stock listed on the Exchange. To effectuate this 
change, the Exchange proposes to delete the preambles to NYSE Rules 5P 
and 8P currently providing that the Exchange will not list such ETPs.
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    \7\ NMS Stock is defined in Rule 600 of Regulation NMS, 17 CFR 
242.600(b)(48) as ``any NMS security other than an option.'' ``NMS 
Security'' means any security or class of securities for which 
transaction reports are collected, processed, and made available 
pursuant to an effective transaction reporting plan, or an effective 
national market system plan for reporting transactions in listed 
options.'' See 17 CFR 242.600(b)(47). ``NMS Security'' refers to 
``exchange-listed equity securities and standardized options, but 
does not include exchange-listed debt securities, securities 
futures, or open-end mutual funds, which are not currently reported 
pursuant to an effective transaction reporting plan.'' See Question 
1.1 in the ``Responses to Frequently Asked Questions Concerning 
Large Trader Reporting,'' available at: https://www.sec.gov/divisions/marketreg/large-trader-faqs.htm.
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    The proposal would permit the Exchange to list and trade on the 
NYSE Trading Floor \8\ both ETPs and one or more component NMS Stocks 
forming part of the underlying ETP index or portfolio (``side-by-side 
trading'' \9\). Because listed securities are assigned to a Designated 
Market Maker (``DMM''), the proposed elimination of the current 
restriction could result in DMMs being assigned ETPs that may have one 
or more component NMS Stocks forming part of the underlying ETP index 
or portfolio that are also assigned to the DMM (``integrated market 
making'').\10\ The Commission has approved integrated market making and 
side-by-side trading for ``broad-based'' ETPs and related options.\11\ 
According to the Exchange, the test for whether a product is ``broad-
based'', and therefore is not readily susceptible to manipulation, is 
whether the individual components of the ETP are sufficiently liquid 
and well-capitalized and the product is not over-concentrated.\12\ When 
an ETP meets both criteria, and therefore can be considered ``broad-
based,'' the Commission has explicitly permitted integrated market 
making and side-by-side trading in both the ETP and related options, 
with no requirement for information barriers or physical or 
organizational separation.\13\
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    \8\ The term ``Trading Floor'' is defined in NYSE Rule 6A to 
mean the restricted-access physical areas designated by the Exchange 
for the trading of securities, commonly known as the ``Main Room'' 
and the ``Buttonwood Room.''
    \9\ ``Side-by-side trading'' refers to the trading of an equity 
security and its related derivative product at the same physical 
location, though ``not necessarily by the same specialist or 
specialist firm.'' Securities Exchange Act Release No. 46213 (July 
16, 2002), 67 FR 48232, 48233 (July 23, 2002) (SR-Amex-2002-21) 
(``Release No. 46213'') (order approving side-by-side trading and 
integrated market making of broad index-based ETFs and related 
options); see also Securities Exchange Act Release No. 45454 
(February 15, 2002), 67 FR 8567, 8568 n.7 (February 25, 2002) (SR-
NYSE-2001-43) (``Release No. 45454'') (order approving approved 
person of a specialist to act as a specialist or primary market 
maker with respect to an option on a stock in which the NYSE 
specialist is registered on the Exchange).
    \10\ ``Integrated market making'' refers to the practice of the 
same person or firm making markets in an equity security and its 
related option. See Release No. 45454, 67 FR at 8568 n.7.
    \11\ See Release No. 46213, 67 FR at 48232 (approving side-by-
side trading and integrated market making for certain Exchange 
Traded Funds (``ETF'') and Trust Issued Receipts (``TIR'') and 
related options);  see also Securities Exchange Act Release No. 
62479 (July 9, 2010), 75 FR 41264 (July 15, 2010) (SR-Amex-2010-31) 
(``Release No. 62479'') (order approving side-by-side trading and 
integrated market making in the QQQ ETF and certain of its component 
securities where the QQQs met the composition and concentration 
measures to be classified as a broad-based ETF).
    \12\ See Release No. 62479, id., 75 FR at 41272. The Commission 
has expressed its belief ``that, when the securities underlying an 
ETF consist of a number of liquid and well-capitalized stocks, the 
likelihood that a market participant will be able to manipulate the 
price of the ETF is reduced.'' See id. See generally Securities 
Exchange Act Release Nos. 56633 (October 9, 2007), 72 FR 58696 
(October 16, 2007) (SR-ISE-2007-60) (order approving generic listing 
standards for ETFs based on both U.S. and international indices, 
noting they are ``sufficiently broad-based in scope to minimize 
potential manipulation.''); 55621 (April 12, 2007), 72 FR 19571 
(April 18, 2007) (SR-NYSEArca-2006-86); 54739 (November 9, 2006), 71 
FR 66993 (November 17, 2006) (SR-Amex-2006-78); 57365 (February 21, 
2008), 73 FR 10839 (February 28, 2008) (SR-CBOE-2007-109) (order 
approving generic listing standards for ETFs based on international 
indices, noting they are ``sufficiently broad-based in scope to 
minimize potential manipulation.''); 56049 (July 11, 2007), 72 FR 
39121 (July 17, 2007) (SR-Phlx-2007-20); 55113 (January 17, 2007), 
72 FR 3179 (January 24, 2007) (SR-NYSE-2006-101); and 55269 
(February 9, 2007), 72 FR 7490 (February 15, 2007) (SR-NASDAQ-2006-
50).
    \13\ See note 11, supra.
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    In making a determination of whether an ETP is broad-based, the 
Commission has relied on an exchange's listing standards. According to 
the Exchange, in permitting integrated market making and side-by-side 
trading for two types of ETPs and their related options, the Commission 
looked to the American Stock Exchange LLC's listing standards that are 
very similar to the Exchange's current listing standards.
    The Exchange notes that the relationship between an ETP and its 
underlying listed NMS Stock component or components is fundamentally 
different than that between an ETP and its related option. In the 
latter case, a small move in the price of the listed security can 
trigger a large move in the price of the related option, increasing the 
incentive for a market maker or specialist to manipulate the security 
or coordinate trading with the options market maker or specialist. 
Here, the Exchange asserts that there is no similar outsized 
correlation between a move in the price of a listed ETP and one or more 
of its underlying NMS Stock components. The potential for manipulation 
or coordinated trading is significantly attenuated for listed ETPs and 
their underlying NMS Stock components because the Exchange's generic 
listed standards are designed to ensure that the Exchange will only 
list ETPs that are ``broad-based''--that is, the ETP's underlying 
component securities must be sufficiently liquid and well-capitalized, 
and the ETP must not be unduly concentrated.
    According to the Exchange, the listing standards for Units based on 
an index of both US Component Stocks and Non-US Component Stocks; \14\ 
Equity-Index Linked securities (commonly referred to as Exchange Traded 
Notes or ``ETNs''); \15\ Portfolio Depositary Receipts under NYSE Rule 
8.100 with underlying component stocks consisting of an index or 
portfolio of US Component Stocks; \16\ and actively managed funds under 
NYSE Rule 8.600 \17\ are all broadly similar. The Exchange could not 
list an ETP that does not meet these generic listing requirements 
without a proposed rule change being filed with the Commission.
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    \14\ See NYSE Rule 5.2(j)(3), Supp. Material .01(a)(B)(1)-(5). 
The index or portfolio must include a minimum of 20 component 
stocks.
    \15\ See NYSE Rule 5.2(j)(6)(B)(I).
    \16\ See NYSE Rule 8.100.
    \17\ See NYSE Rule 8.600.
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    The Exchange believes that listed ETPs meeting these composition 
and concentration measures would be sufficiently broad-based to allow 
integrated market making and side-by-side trading in both the ETP and 
the component NMS securities with no requirement for information 
barriers or physical or organizational separation.
    As noted by the Exchange, equity-based ETPs that do not meet the 
applicable generic listing standards would require a rule filing with 
the Commission prior to commencement of Exchange listing or trading. 
The rule filing would set forth the initial and continued listing 
requirements in order for such a product to be listed and traded on the 
Exchange. In order for a rule proposal to be consistent with the

[[Page 4053]]

Act, it must, among other things, further the objectives of Section 
6(b)(5) of the Act \18\ in that it is designed to prevent fraudulent 
and manipulative acts and practices. The Exchange believes that equity-
based ETPs whose underlying component composition varies greatly from 
the generic listing standards, i.e., an ETP whose components are 
insufficiently liquid or well-capitalized or unduly concentrated, would 
be unlikely to meet this requirement. Accordingly, the Exchange 
believes that ETPs listed and traded via the rule filing process would 
also be sufficiently broad-based in order to minimize potential 
manipulation, thus justifying integrated market making and side-by-side 
trading in both the ETP and the component NMS securities.
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    \18\ 15 U.S.C. 78f(b)(5).
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    While the ``broad-based'' nature of listed ETPs under either the 
generic listing standards or via a rule filing makes manipulation less 
likely, the Exchange also believes that the potential for manipulation 
of listed ETPs is minimal because ETP pricing is based on an 
``arbitrage function'' performed by market participants that affects 
the supply of and demand for ETP shares and, thus, ETP prices. This 
``arbitrage function'' is effectuated by creating new ETP shares and 
redeeming existing ETP shares based on investor demand; thus, ETP 
supply is open-ended. As the Commission has acknowledged, the arbitrage 
function helps to keep an ETP's price in line with the value of its 
underlying portfolio, i.e., it minimizes deviation from NAV. Generally, 
the higher the liquidity and trading volume of an ETP, the more likely 
the ETP's price will not deviate from the value of its underlying 
portfolio. Market makers registered in ETPs play a key role in this 
arbitrage function and DMMs, along with other market participants, 
would perform this role for ETPs listed on the Exchange. In short, the 
Exchange believes that the arbitrage mechanism is an effective and 
efficient means of ensuring that intraday pricing in ETPs closely 
tracks the value of the underlying portfolio or reference assets.
    The Exchange believes that the price regulating function played by 
the arbitrage mechanism renders attempts to influence or manipulate the 
price of an ETP more difficult and more susceptible to immediate 
detection and correction. The fact that an ETP and one or more of its 
underlying components are traded in the same physical space on the 
Exchange or by the same DMM on the Exchange does not alter this dynamic 
in the slightest, nor does it make price manipulation more likely. 
Rather, the Exchange believes the arbitrage mechanism would make price 
manipulation more difficult and, thus, less likely. Attempts by Floor-
based market participants to influence the price of an ETP by, for 
instance, manipulating one or more component securities would be 
reflected in the deviation of the price from the NAV just as similar 
attempts today by upstairs traders would be reflected in the deviation 
of the price from the NAV. Moreover, the Exchange asserts that a broad-
based ETP would, as shown above, be even less susceptible to price 
manipulation. The Exchange thus believes that the type of broad-based 
equity ETPs eligible for listing under the generic listing standards, 
coupled with the arbitrage mechanism, sufficiently minimize the 
potential for manipulation of ETPs listed and traded on the Trading 
Floor.
    With respect to integrated market making, the Commission has 
approved changes to NYSE Rule 98 that permit a DMM unit to engage in 
integrated market making with off-Floor market making units in related 
products.\19\ NYSE Rule 98(c)(6) prohibits DMM units from operating as 
a specialist or market maker on the Exchange in related products, 
unless specifically permitted in Exchange rules. NYSE Rule 98(b)(7) 
defines ``related products'' as ``any derivative instrument that is 
related to a DMM security.'' \20\ Accordingly, consistent with the 
proposal, the Exchange proposes to amend NYSE Rule 98(b)(7) to 
specifically exclude ETPs from the definition of ``related products.'' 
The Exchange believes that ETPs are different from other types of 
related products such as single-stock options or futures and that, 
given the broad-based nature of listed ETPs, integrated market making 
and side-by-side trading in both the ETP and underlying NMS stock 
components is appropriate with no requirement for information barriers 
or physical or organizational separation.
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    \19\ See Securities Exchange Act Release No. 58328 (August 7, 
2008), 73 FR 48260 (August 18, 2008) (SR-NYSE-2008-45) (order 
approving amendments to NYSE Rule 98 that permit specialist firms to 
integrate with off-Floor trading desks that trade in ``related 
products,'' as that term is defined in NYSE Rule 98).
    \20\ Under NYSE Rule 98(b)(7), derivative instruments include 
options, warrants, hybrid securities, single-stock futures, 
security-based swap agreement, a forward contract, or ``any other 
instrument that is exercisable into or whose price is based upon or 
derived from a security traded at the Exchange.''
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    According to the Exchange, trading on the Exchange is subject to a 
comprehensive regulatory program that includes a suite of surveillances 
and routine examinations that review trading by DMMs and other market 
participants on the Exchange's trading Floor. Market participants on 
the trading Floor, including DMMs, are also required to implement 
policies and procedures reasonably designed to detect and to deter 
inappropriate conduct and prevent the misuse of material, non-public 
information or disclosure of Floor-based non-public order 
information.\21\
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    \21\ See, e.g., NYSE Rule 98(c)(3) (setting forth restrictions 
on trading for member organizations operating a DMM unit).
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II. Proceedings To Determine Whether To Approve or Disapprove SR-NYSE-
2019-54 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \22\ to determine whether the proposed rule 
change should be approved or disapproved. Institution of such 
proceedings is appropriate at this time in view of the legal and policy 
issues raised by the proposed rule change. Institution of proceedings 
does not indicate that the Commission has reached any conclusions with 
respect to any of the issues involved. Rather, as described below, the 
Commission seeks and encourages interested persons to provide comments 
on the proposed rule change.
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    \22\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\23\ the Commission is 
providing notice of the grounds for disapproval under consideration. 
The Commission is instituting proceedings to allow for additional 
analysis of the proposed rule change's consistency with Section 6(b)(5) 
of the Act, which requires, among other things, that the rules of a 
national securities exchange be ``designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade,'' and ``to protect investors and the public 
interest.'' \24\
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    \23\ Id.
    \24\ 15 U.S.C. 78f(b)(5).
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    The Commission asks that commenters address the sufficiency of the 
Exchange's statements in support of the proposal, which are set forth 
in the Notice,\25\ in addition to any other comments they may wish to 
submit about the proposed rule change. In particular, the Commission 
seeks comment on the following questions and asks commenters to submit 
data where appropriate to support their views.
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    \25\ See Notice, supra note 3.

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[[Page 4054]]

    1. What are commenters' views generally on whether the Exchange's 
proposal to implement side-by-side trading and integrated market making 
for ETPs to be listed and traded on the Exchange is consistent with 
Section 6(b)(5) of the Act, which requires that the Exchange's rules be 
designed to, among other things, prevent fraudulent and manipulative 
acts and practices?
    2. With respect to ETPs that meet their respective generic listing 
requirements, is the ``broad-based'' test as outlined by the Exchange 
the appropriate standard that should be equally applied to all ETPs, 
including ETFs, TIRs, and ETNs? Specifically, are the ETPs included in 
the proposal ``broadly similar'' as the Exchange asserts and therefore 
subject to the same analysis? If so, why? If not, what factors, if any, 
should the Commission consider in its review of side-by-side trading 
and integrated market making related to each category of ETPs, such as 
ETFs, TIRs, and ETNs?
    3. What are commenters' views about whether, as a result of the 
proposal to implement side-by-side trading and integrated market 
making, certain Exchange members may acquire an informational advantage 
over other market participants with respect to trading in the ETP and 
the underlying securities? What are commenters' views on whether such 
informational advantage, if any, presents concerns regarding the 
potential for misuse of material, non-public information?
    4. What are commenters' views on the Exchange's assertion that ETPs 
listed and traded via the rule filing process ``would also be 
sufficiently broad-based'' in order to minimize potential manipulation, 
thus justifying integrated market making and side-by-side trading in 
both the ETP and the component NMS securities? Specifically, what are 
commenters' views on whether the Exchange's application of the ``broad-
based'' test to equity-based ETPs that do not comply with their 
respective generic listing requirements is appropriate? If not, why 
not? What are other factors, if any, that ought to be considered with 
respect to these types of equity-based ETPs, specifically? What are 
other factors, if any, that ought to be considered for all ETPs, 
including ETPs that are not primarily based on equity securities, but 
nevertheless include NMS stocks in their indexes or portfolios, that do 
not satisfy their respective generic listing requirements in some form 
or manner?
    5. What are commenter's views on the Exchange's assertions that the 
potential for manipulation of listed ETPs would be minimal because ETP 
pricing is based on an ``arbitrage function'' performed by market 
participants that affects the supply of, and demand for, ETP shares 
and, thus, ETP prices?

III. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
views of interested persons concerning whether the proposal is 
consistent with Section 6(b)(5) or any other provision of the Act, or 
the rules and regulations thereunder. Although there do not appear to 
be any issues relevant to approval or disapproval that would be 
facilitated by an oral presentation of views, data, and arguments, the 
Commission will consider, pursuant to Rule 19b-4, any request for an 
opportunity to make an oral presentation.\26\
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    \26\ Section 19(b)(2) of the Act, as amended by the Securities 
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by a self-regulatory 
organization. See Securities Act Amendments of 1975, Senate Comm. on 
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposal should be approved or 
disapproved by February 13, 2020. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
February 27, 2020. The Commission asks that commenters address the 
sufficiency of the Exchange's statements in support of the proposal, in 
addition to any other comments they may wish to submit about the 
proposed rule change.
    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 Number SR-NYSE-2019-54 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2019-54. 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 website (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 website 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 the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSE-2019-54 and should be submitted by 
February 13, 2020. Rebuttal comments should be submitted by February 
27, 2020.
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    \27\ 17 CFR 200.30-3(a)(57).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\27\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-01097 Filed 1-22-20; 8:45 am]
 BILLING CODE 8011-01-P