[Federal Register Volume 85, Number 34 (Thursday, February 20, 2020)]
[Notices]
[Pages 9816-9820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03320]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88210; File No. SR-NASDAQ-2019-049]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing of Amendment No. 3 and Order Granting Accelerated 
Approval of a Proposed Rule Change, as Modified by Amendment No. 3, To 
Amend the Definition of Family Member in Listing Rule 5605(a)(2) for 
Purposes of the Definition of Independent Director

February 13, 2020.

I. Introduction

    On May 29, 2019, The NASDAQ Stock Market LLC (``Nasdaq'' or 
``Exchange'') 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 amend the definition of a family member for 
purposes of determining the independence of directors under Nasdaq Rule 
5605(a)(2). The proposed rule change was published for comment in the 
Federal Register on June 18, 2019.\3\
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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. 86095 (June 12, 
2019), 84 FR 28379 (``Notice'').
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    On August 1, 2019, the Commission extended the time period within 
which

[[Page 9817]]

to either approve the proposed rule change, disapprove the proposed 
rule change, or institute proceedings to determine whether to approve 
or disapprove the proposed rule change, to September 16, 2019.\4\ On 
September 13, 2019, the Commission instituted an order instituting 
proceedings under Section 19(b)(2)(B) of the Act (``OIP'') to determine 
whether to approve or disapprove the proposed rule change.\5\ The 
Commission received one comment letter, from Nasdaq, in response to the 
OIP.\6\ On December 12, 2019, the Commission designated a longer period 
for Commission action on the proposed rule change.\7\ On January 30, 
2020, Nasdaq filed Amendment No. 1 to the proposed rule change, which 
the Exchange subsequently withdrew. On January 31, 2020, Nasdaq filed 
Amendment No. 2 to the proposed rule change, which the Exchange 
subsequently withdrew.\8\ On February 11, 2020, Nasdaq filed Amendment 
No. 3 to the proposed rule change. The Commission is publishing notice 
of the filing of Amendment No. 3 to solicit comment from interested 
persons and is approving the proposed rule change, as modified by 
Amendment No. 3, on an accelerated basis.
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    \4\ See Securities Exchange Act Release No. 86545 (August 1, 
2019), 84 FR 38704 (August 7, 2019).
    \5\ See Securities Exchange Act Release No. 86969 (September 13, 
2019), 84 FR 49353 (September 19, 2019).
    \6\ See letter from Jeffrey S. Davis, Senior Vice President and 
Senior Deputy General Counsel, Nasdaq, to Vanessa A. Countryman, 
Secretary, Commission, dated November 12, 2019.
    \7\ See Securities Exchange Act Release No. 87721 (December 12, 
2019), 84 FR 69401 (December 18, 2019).
    \8\ In Amendment No. 3, Nasdaq provided additional clarification 
and justification in support of the proposed rule change, including 
a statement that it was proposing to interpret the term ``children'' 
to exclude stepchildren; deleted and revised certain language in the 
original proposal; and clarified that the proposed rule change to 
Nasdaq Rule 5605(a)(2) will not affect the additional independence 
criteria for audit committee members set forth in Nasdaq Rule 
5605(c)(2), which incorporate the independence requirements of Rule 
10A-3 under the Act, 17 CFR 240.10A-3. Amendment No. 3 replaces and 
supersedes the original proposal in its entirety and is available 
at: http://nasdaq.cchwallstreet.com/NASDAQ/pdf/nasdaq-filings/2019/SR-NASDAQ-2019-049_Amendment_3.pdf.
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II. Description of the Proposal, as Modified by Amendment No. 3

    Nasdaq has proposed to amend its definition of ``Family Member'' 
for purposes of determining whether a director is independent under 
Nasdaq Rule 5605(a)(2) to mean a person's spouse, parents, children, 
siblings, mothers and fathers-in-law, sons and daughters-in-law, 
brothers and sisters-in-law, and anyone (other than domestic employees) 
who shares such person's home. As stated by Nasdaq, the purpose of the 
proposed rule change is to exclude domestic employees who share the 
director's home, and stepchildren who do not share the director's home, 
from the types of relationships that always preclude a finding that a 
director is independent.\9\
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    \9\ See Amendment No. 3, supra note 8, at 5.
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    Nasdaq rules require companies listing on the Exchange to meet 
certain standards, including that a majority of the board of the 
directors of the company (the ``Board'') be Independent Directors, and 
that the company's audit, compensation and nominating committees \10\ 
be comprised solely of Independent Directors.\11\ ``Independent 
Director'' is defined in Nasdaq Rule 5605(a)(2) to mean a person other 
than an executive officer or employee of the company or any other 
individual having a relationship which, in the opinion of the company's 
Board, would interfere with the exercise of independent judgment in 
carrying out the responsibilities of a director.
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    \10\ If the company does not have a nominating committee, under 
Nasdaq Rule 5605(e)(1) nominees for directors must be selected or 
recommended by Independent Directors constituting a majority of the 
Board's Independent Directors in a vote in which only Independent 
Directors participate.
    \11\ See Nasdaq Rule 5605(b)-(e).
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    Rule 5605(a)(2) also precludes a Board finding of independence in 
specified situations where a director or a director's Family Member, as 
defined in the rule, has (or has had), certain relationships with the 
listed company. This list of relationships, commonly referred to as 
``bright-line tests'', includes the following:
     A director who accepted or who has a Family Member who 
accepted any compensation from the company in excess of $120,000 during 
any period of twelve consecutive months within the three years 
preceding the determination of independence (with certain exceptions, 
including a Family Member who is an employee other than an executive 
officer); \12\
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    \12\ Nasdaq's rules state that this criterion is generally 
intended to capture situations where a compensation is made directly 
to (or for the benefit of) the director or a Family Member of the 
director. See Nasdaq Rule IM-5605.
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     A director who is a Family Member of an individual who is, 
or at any time during the past three years was, employed by the company 
as an executive officer;
     A director who is, or has a Family Member who is, a 
partner in, or a controlling shareholder or an executive officer of, 
any organization to which the company made, or from which the company 
received, payments for property or services in the current or any of 
the past three fiscal years that exceed 5% of the recipient's 
consolidated gross revenues for that year, or $200,000, whichever is 
more (with certain exceptions);
     A director of the company who is, or has a Family Member 
who is, employed as an executive officer of another entity where at any 
time during the past three years any of the executive officers of the 
company serve on the compensation committee of such other entity; and
     A director who is, or has a Family Member who is, a 
current partner of the company's outside auditor, or was a partner or 
employee of the company's outside auditor who worked on the company's 
audit at any time during any of the past three years.\13\
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    \13\ Nasdaq Rule 5605(a)(2)(A) also prohibits a director who is, 
or at any time during the past three years was, employed by the 
company. Additional criteria of independence apply with respect to 
Board members and members of the audit and compensation committees. 
See Nasdaq Rule 5605.
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    Nasdaq Rule 5605(a)(2) currently defines Family Member as ``a 
person's spouse, parents, children and siblings, whether by blood, 
marriage or adoption, or anyone residing in such person's home.'' As 
noted by Nasdaq in its proposal, this definition includes stepchildren, 
as they are ``children by . . . marriage.'' It also includes domestic 
employees who reside in a person's home.
    Nasdaq has proposed to re-define a Family Member to mean ``a 
person's spouse, parents, children, siblings, mothers and fathers-in-
law, sons and daughters-in-law, brothers and sisters-in-law, and anyone 
(other than domestic employees) who shares such person's home.'' 
According to Nasdaq, this definition would make its definition of 
Family Member identical to the definition of ``immediate family 
member'' in the corresponding corporate governance rules of the New 
York Stock Exchange (``NYSE'').\14\ Nasdaq has proposed further to 
interpret the term ``children'' to exclude stepchildren.\15\ As noted 
by Nasdaq,

[[Page 9818]]

however, the relationship of a stepchild who shares the same home with 
a director would continue to be considered a Family Member relationship 
under the bright-line tests, because the definition of a Family Member 
will include anyone (other than domestic employees) who shares the 
director's home.\16\ Nasdaq has also proposed to exclude domestic 
employees who reside in a director's home from the definition of Family 
Member.
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    \14\ See Section 303A.02 of the NYSE Listed Company Manual, 
which states in this regard: ``An `immediate family member' includes 
a person's spouse, parents, children, siblings, mothers and fathers-
in-law, sons and daughters-in-law, brothers and sisters-in-law, and 
anyone (other than domestic employees) who shares such person's 
home.'' See also Amendment No. 3, at 8, in which Nasdaq stated, 
among other things, that it had heard from its listed companies and 
their legal counsel that the current situation, where each market 
has a different definition, complicates the preparation by listed 
companies of director and officer questionnaires that the companies 
need in order to analyze director independence.
    \15\ See Amendment No. 3, supra note 8, at 7.
    \16\ See id.
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    Concerning the aspect of the proposed rule change relating to 
stepchildren, Nasdaq noted in its proposal that, over time, it had 
concluded that inclusion of stepchildren in the definition of Family 
Member for the purposes of the bright-line tests makes the definition 
over-inclusive. The Exchange further stated that it believes that a 
director's relationship with his or her stepchildren may or may not 
interfere with the director's exercise of independent judgment, 
depending on the facts and circumstances of the situation.\17\
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    \17\ See id.
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    The Exchange acknowledged in its proposal that if a stepchild has 
been a dependent of a director or was part of the director's household 
since being a minor, the director's relationship with that stepchild is 
likely to be similar to a relationship with a biological child. 
However, the Exchange maintained, if the director married a person who 
has an adult child, the director never acted in any capacity as a 
parent of this stepchild, and the stepchild never shared the director's 
household, then the director and stepchild are likely to have an 
attenuated relationship that is unlike the relationship of a parent and 
a child.\18\
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    \18\ See id.
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    Nasdaq has concluded, therefore, that a stepchild relationship 
should not preclude a director from being considered independent in all 
circumstances. The Exchange believes, rather, that a company's Board is 
in the best position to determine whether a given relationship between 
a director and stepchild is likely to interfere with the director's 
exercise of independent judgment in carrying out his or her 
responsibilities based on the facts and circumstances.\19\ The Exchange 
noted in its proposal that, under Nasdaq Rule 5605(a)(2) and IM-5605, 
the Board must affirmatively determine that no relationship exists that 
would interfere with such independent judgment.\20\
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    \19\ See id., at 7-8.
    \20\ See id., at 10.
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    Nasdaq added that the proposed rule change to the definition of 
Family Member for purposes of the bright-line tests of independence in 
Nasdaq Rule 5605(a)(2) would not affect the additional independence 
criteria for audit committee members set forth in Nasdaq Rule 
5605(c)(2), which incorporate the independence requirements of the Rule 
10A-3 under the Act.\21\
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    \21\ Nasdaq Rule 5605(c)(2) requires that each Company must 
have, and certify that it has and will continue to have, an audit 
committee of at least three members, each of whom must, among other 
requirements, meet the criteria for independence set forth in Rule 
10A-3(b)(1) under the Act, in addition to the requirements of Nasdaq 
Rule 5605(a)(2). See also Nasdaq Rule IM-5605-4 (Audit Committee 
Composition).
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    Concerning the aspect of the proposed rule change that relates to 
domestic employees who share a director's home, Nasdaq stated that the 
term Family Member was not intended to capture commercial 
relationships. Here, too, the Exchange expressed the belief that it is 
appropriate for the Board to review a relationship between a director 
and a domestic employee under a facts and circumstances test.\22\
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    \22\ See Amendment No. 3, supra note 8, at 10.
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III. Summary of Comment Letter

    As previously noted, the Commission received one comment letter, 
from Nasdaq, in response to the OIP. In its letter, Nasdaq stated, 
among other things, that it and NYSE appear to agree that stepchildren 
should be excluded from the definition of Family Member (in Nasdaq's 
rules) and immediate family member (in NYSE's rules). Nasdaq believes 
that ``NYSE interprets the term `children' to exclude stepchildren, 
particularly in situation where the stepchild relationship is 
attenuated, namely where a person has become a stepchild of a director 
as an adult.'' Nasdaq stated that it based this understanding on 
information that it said was provided by practitioners that represent 
companies listed on both Nasdaq and NYSE and from companies previously 
listed on NYSE. Nasdaq further noted that the Commission has previously 
approved the proposed definition as consistent with Section 6(b)(5) of 
the Act and added that it believes that Commission disapproval of its 
proposed rule change would promote unfair competition.

IV. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule 
change is consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to a national securities 
exchange.\23\ In particular, the Commission finds that the proposed 
rule change is consistent with Section 6(b)(5) of the Act,\24\ 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, 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.
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    \23\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \24\ 15 U.S.C. 78f(b)(5).
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    As discussed above, Nasdaq has proposed to define a Family Member, 
for purposes of the bright-line tests of whether a director qualifies 
as an Independent Director, to mirror the definition of ``immediate 
family member'' under NYSE's rules. The Commission notes that other 
exchanges, too, use the same or similar language in their corporate 
governance rules, all of which have been approved by the Commission as 
consistent with the Act.\25\ The Commission notes, in addition, that it 
has received no comments, other than the aforementioned letter from the 
Exchange, in support of its proposal in response to the OIP.
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    \25\ See, e.g., Securities Exchange Act Release Nos. 48863 (Dec. 
1, 2003), 68 FR 68432 (Dec. 8, 2003) (order approving File No. SR-
Amex-2003-65, now incorporated in NYSE American LLC Company Guide at 
Section 803, Commentary .01); 49810 (June 4, 2004), 69 FR 32647 
(June 10, 2004) (order approving SR-PCX-2003-35, now incorporated in 
the rules of NYSE Arca, Inc., at Rule 5.3-E(k)(5)(H)); and 49911 
(June 24, 2004), 69 FR 39989 (July 1, 2004) (order approving File 
No. SR-CHX-2003-19, now incorporated in the rules of NYSE Chicago, 
Inc., at Article 22, Rule 19(o)). In addition to approving Nasdaq's 
proposed new rule text defining Family Member for purposes of the 
bright-line tests, which mirrors the rule language of these other 
exchanges, the Commission is also approving Nasdaq's interpretation 
of ``children'' as excluding stepchildren, an interpretation that 
the Commission has not approved previously for other exchanges.
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    As to Nasdaq's proposal to interpret the term ``children'' to 
exclude stepchildren from the definition of Family Member, Nasdaq 
explained in support of its proposal that in some cases a stepchild has 
been a dependent or was part of the director's household since being a 
minor and the director/stepchild relationship is likely then to be 
similar to a relationship with a biological child, who is covered by 
the bright-line tests, while in other cases the director and stepchild 
relationship is attenuated, as in a situation where the director is 
married to a person who has an adult child who never shared the

[[Page 9819]]

director's household, and the director never acted in any capacity as a 
parent to the stepchild. As a result of these different fact patterns, 
Nasdaq believes it is appropriate to leave to the Board the 
determination as to whether such a relationship is likely to interfere 
with the director's exercise of independent judgement in carrying out 
the director's responsibilities, based on the Board's analysis of the 
facts and circumstances of the director/stepchild relationship. Nasdaq 
has further noted that a stepchild who shares a home with the director 
would continue to be covered by the bright-line tests through the 
definition of Family Member, which still includes anyone, other than a 
domestic employee, who shares the director's home. Additionally, the 
Commission notes that, as Nasdaq points out, the Exchange's rules place 
a responsibility on the Board of a listed company to make an 
affirmative determination, beyond applying the bright-line tests, that 
any individual serving as an independent director has no relationship 
that would impair his or her independence.\26\
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    \26\ See supra, text accompanying note 20.
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    In addition, the Commission notes that, in the proposal as modified 
by Amendment No. 3, the Exchange stated that, to comply with the 
Exchange's rules, it will expect the Boards of its listed companies to 
continue to elicit through director questionnaires the information 
necessary to make independence determinations, which, it states, will 
need to include questions about stepchild relationships. The Commission 
believes that this should help to ensure that listed companies inquire 
about stepchild relationships so that such companies can discern the 
essential facts and circumstances to be able to make the affirmative 
findings necessary under Nasdaq rules to determine a director is 
independent. This is important given that Nasdaq will no longer be 
including stepchildren within the blanket exclusions of the Family 
Member relationships identified in the bright-line tests that 
automatically disqualify a director from being independent. The 
Commission notes that the proposal, in the narrow context of excluding 
stepchildren who do not share the director's home from the definition 
of Family Member for purposes of the bright-line tests, should provide 
additional flexibility to Boards by permitting them to consider the 
independence of a director based on the particular facts and 
circumstances of a director and stepchild relationship, while at the 
same time continuing to require Boards to have the responsibility to 
ensure that such a relationship would not interfere with or impair a 
Board member's independence.\27\
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    \27\ See Nasdaq Rule 5605(a)(2) and IM-5605.
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    The Commission also notes that the Exchange's proposal would permit 
a finding of independence if there is a company relationship with the 
minor stepchild of a director who is not sharing the director's home, 
while Rule 10A-3 and Exchange Rule 5605(c)(2), which incorporates the 
independence requirements of Rule 10A-3, could preclude a finding of 
independence in such case for a director serving as a member of an 
audit committee. Exchange Rule 5605(c)(2) also incorporates the 
independence requirements of Rule 5605(a)(2) for a director serving on 
the audit committee. In the proposal as modified by Amendment No. 3, to 
avoid any confusion, Nasdaq has made clear that the change it is 
proposing to the interpretation of Family Member concerning 
stepchildren in Nasdaq Rule 5605(a)(2), for purposes of the bright-line 
tests in that provision, will not affect the additional independence 
criteria for audit committee members in Nasdaq Rule 5605(c)(2), 
incorporating the provisions of Rule 10A-3.\28\
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    \28\ The Commission would expect the Exchange to make clear to 
its listed companies that the proposed broader exclusion from the 
definition of Family Member, as it applies to minor stepchildren not 
sharing the director's home, may not be applied for purposes of 
determining the independence of audit committee members, where the 
stricter standards of Rule 10A-3, as well as Exchange Rule 
5605(c)(2), still apply.
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    Finally, the Commission believes that it is reasonable for Nasdaq 
to exclude domestic employees who share a director's home from the 
definition of Family Member, as do other exchanges. The Commission 
notes that Nasdaq stated in its proposal that it believes that it is 
appropriate for a company's Board to review a relationship between a 
director and a domestic employee who shares the director's home under a 
facts and circumstances test, as in the case of a stepchild 
relationship.\29\ The Commission also notes that this proposed 
provision is consistent with the rules of other exchanges.\30\ As noted 
above with respect to other relationships, the Board would continue to 
need to make an affirmative determination that such a domestic employee 
relationship with the director does not interfere with the director's 
independence, pursuant to the requirements in Exchange Rule 5605(a)(2) 
and IM 5605.
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    \29\ See Amendment No. 3, supra note 8, at 10.
    \30\ See supra, note 25.
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V. Accelerated Approval of the Proposed Rule Change, as Modified by 
Amendment No. 3

    The Commission finds good cause to approve the proposed rule 
change, as modified by Amendment No. 3, prior to the thirtieth day 
after the date of publication of notice of the filing of Amendment No. 
3 in the Federal Register. Amendment No. 3 provided clarifications and 
additional information regarding the justification of the proposal and 
also made clear that the proposed rule change would not impact the 
applicability of the Exchange's additional independence criteria for 
audit committee members set forth in Nasdaq Rule 5605(c)(2), which 
incorporate the independence requirements of Rule 10A-3. In Amendment 
No. 3, Nasdaq also stated that Boards of its listed companies will be 
expected to elicit the information necessary for Boards to make 
independence determinations and specifically ask about stepchild 
relationships. The Commission also notes that the proposed rule 
language being adopted herein was noticed for comment in the Federal 
Register and no comments were received in response to that notice. The 
clarifications and additional justification in Amendment No. 3 have 
assisted the Commission in evaluating the proposal under the Act. 
Accordingly, the Commission finds good cause, pursuant to Section 
19(b)(2) of the Act,\31\ to approve the proposed rule change, as 
modified by Amendment No. 3, on an accelerated basis.
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    \31\ 15 U.S.C. 78s(b)(2).
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VI. Solicitation of Comments on Amendment No. 3 to the Proposed Rule 
Change

    Interested persons are invited to submit written data, views, and 
arguments concerning whether Amendment No. 3 to 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 Number SR-NASDAQ-2019-049 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-NASDAQ-2019-049. This

[[Page 9820]]

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-NASDAQ-2019-049, and should be submitted 
on or before March 12, 2020.

VII. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\32\ that the proposed rule change (SR-NASDAQ-2019-049), as 
modified by Amendment No. 3, be, and it hereby is, approved on an 
accelerated basis.
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    \32\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\33\
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    \33\ 17 CFR 200.30-3(a)(57).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2020-03320 Filed 2-19-20; 8:45 am]
 BILLING CODE 8011-01-P