

[Federal Register: December 31, 2007 (Volume 72, Number 249)]
[Notices]               
[Page 74375-74379]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de07-98]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57022; File No. SR-Amex-2007-138]

 
Self-Regulatory Organizations; American Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change To Establish a New Class of 
Off Floor Market Makers in ETFs Called Designated Amex Remote Traders

December 20, 2007.
    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 December 19, 2007, the American Stock Exchange LLC (``Amex'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been substantially prepared by the 
Amex. 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 Substance 
of the Proposed Rule Change

    The Amex proposes to adopt changes to its rules to create a new 
class of off-floor market makers in all ETF securities that trade on 
the Exchange, including the implementation of related changes to the 
Exchange's AEMI trading platform. These market makers, to be called 
``Designated Amex Remote Traders'' or ``DARTs,'' will electronically 
enter competitive quotations on a regular basis sufficient to satisfy 
market maker regulatory requirements. Business requirements will 
include minimum performance standards with respect to each assigned 
security that a DART trades. The purpose of the new program is to (1) 
encourage competitive quoting within the Amex and between the Amex and 
other market centers, (2) retain and increase order flow by attracting 
new market makers to the Exchange, and (3) encourage greater depth at 
or around the national best bid or offer (``NBBO'').
    The text of the proposed rule change is available on the Amex's Web 
site at http://www.amex.com, at the Amex's Principal Office, 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 Amex 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 Amex 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    In order to (1) encourage competitive quoting within the Amex and 
between the Amex and other market centers, (2) retain and increase ETF 
order flow in AEMI by attracting new market makers to the Exchange, and 
(3) encourage greater depth at or around the NBBO, the Exchange 
proposes to adopt changes to its rules to create a new class of off-
floor market makers in all ETF securities that trade on the Exchange, 
including the implementation of related changes to the Exchange's AEMI 
trading platform. These market makers, to be called ``Designated Amex 
Remote Traders'' or ``DARTs,'' will electronically enter competitive 
quotations on a regular basis sufficient to satisfy market maker 
regulatory requirements. DARTs will also have to meet certain business 
requirements, which will include minimum performance standards as 
discussed below. The Exchange anticipates that the implementation of 
the DARTs program should increase the liquidity available in those ETF 
securities to which DARTs are assigned and reduce the likelihood of 
tolerance breaches in AEMI due to the resultant additional depth at or 
around the NBBO.
    This proposed rule change replaces a similar proposed rule change 
for a DARTs program at the Exchange that was recently approved by the 
Commission. \3\ The earlier approved rule change was deleted in a 
subsequent rule filing by the Exchange \4\ in order to allow 
consideration of certain Amex equity Specialists' comments on the DARTs 
program that were received but

[[Page 74376]]

inadvertently overlooked by the Commission.\5\ In the instant filing, 
the Exchange responds to a number of the issues raised by the Comment 
Letter. In addition, the proposed rule change contains certain 
differences from the previously approved rule change for the DARTs 
program. The most significant difference is that the DARTs program as 
proposed herein is limited to ETF securities, in contrast to the 
Exchange's earlier rules which would have allowed DARTs in equity 
securities as well. The Exchange has determined that the implementation 
of DARTs for equities requires substantially greater time and effort 
than that required for ETFs alone, in part due to the substantially 
different treatment of Crowd Orders in the Exchange's priority and 
parity rules for equities and for ETFs.\6\ Consequently, the Exchange 
believes that it should focus its initial efforts on creating a DARTs 
program for ETFs.
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    \3\ See Securities Exchange Act Release No. 56446 (Sept. 17, 
2007), 72 FR 54303 (Sept. 24, 2007) (approving File No. SR-Amex-
2007-85).
    \4\ See Securities Exchange Act Release No. 56764 (Nov. 7, 
2007), 72 FR 64095 (Nov. 14, 2007) (File No. SR-Amex-2007-113).
    \5\ See letter dated September 5, 2007 to Nancy M. Morris, 
Secretary, Commission, from Brendan E. Cryan, Managing Member, 
Brendan E. Cryan & Company, LLC; Jonathan Q. Frey, Managing Partner, 
J. Streicher & Co., Michael Marchisi, Managing Partner, AIM 
SEcurities Co.; and Robert B. Nunn, Chief Operating Officer, Cohen 
Specialist, LLC (``Comment Letter'').
    \6\ In general, under Rule 126-AEMI (Precedence of Bids and 
Offers), after giving priority to customer orders, the ETF portion 
of the rule establishes parity between the Specialist quote, non-
customer Crowd Orders (which would include quotes from DARTs),a nd 
non-customer public orders (with the latter treated as a group foer 
the initial parity allocation). In contrat, the equity portion of 
the rule requires the Specialist quote to yield to public orders, as 
well as any Crowd Orders (including quotes from DARTs) to the exent 
such Crowd Orders are in parity with the public orders.
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    DARTs will be members or member organizations physically located 
off-floor that will electronically enter competitive quotations into 
AEMI on a regular basis in all ETF securities to which they are 
assigned in the DARTs program. The proposed DARTs program is similar to 
the Supplemental Registered Options Traders (``SROT'') program 
implemented by the Amex for options,\7\ with its own unique caveats. 
Under the DARTs proposal, Amex Specialist firms may also be DARTs, 
although they may not be registered as such in securities in which they 
are also the Specialist. DARTs will trade in an identical way as 
Registered Traders in the same ETF securities on the Exchange when 
auto-ex is on, with similar obligations under Exchange rules such as 
those relating to a course of dealings that contributes to the 
maintenance of a fair and orderly market.
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    \7\ See Amex Rule 993-ANTE (Supplemental Registered Options 
Traders).
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    Due to their lack of a physical presence in the trading crowd, 
which is a basic requirement of the auction market, DARTs will not 
participate in any post-trade allocation in connection with an auction 
trade. Instead, a DART's participation in an auction pair-off on the 
Exchange will be limited to the marketable amount of its quotation on 
the AEMI Book at the time of the pair-off. For example, suppose the 
breach of a Tolerance has occurred (disabling auto-ex as provided in 
Rule 128A-AEMI) due to a large incoming buy order that leaves an 
imbalance of 100,000 shares of XYZ ETF to be executed. Assume that a 
DART in that security is offering 10,000 shares at $9.90, 10,000 shares 
at $9.95, and 5,000 shares at $10.10. If the Specialist sets the 
auction price at $10.00 and there are marketable sell orders/offers on 
the AEMI Book at that price for 70,000 shares (including the 10,000 
shares offered by the DART at $9.90 and the 10,000 shares offered at 
$9.95), all of those shares would execute against the imbalance, 
leaving the remaining 30,000 shares for the post-trade allocation. Even 
though the DART has a remaining offer of 5,000 shares on the contra 
side of the aggressing order, he would not be considered an ``active 
crowd participant'' for purposes of the post-trade allocation and 
cannot therefore elect to participate in the disposition of the 
remaining 30,000 shares.
    Amex will establish minimum requirements for a DART to remain in 
the program, which may be modified by the Exchange from time to time. 
First, a DART must provide competitive quotations on a regular basis 
sufficient to satisfy market maker regulatory requirements.\8\ Business 
requirements will include minimum performance standards determined from 
time to time by the Exchange, including volume participation rate and 
trade participation rate. A DART that fails to comply with one or more 
of the performance standards, as determined by the Chief Executive 
Officer of the Exchange or his/her designee, may be subject to loss of 
all or a portion of any benefits to which they would otherwise be 
entitled under Amex rules by virtue of its status as a DART, including 
possible suspension or termination of DART status. A DART may be either 
a regular member of the Exchange or an associate member of the Exchange 
that meets the requirements for electronic access to the Exchange's 
automated systems. The number of ETF securities in which a DART may be 
permitted to make markets will be determined by the Exchange in 
accordance with Commentary .05 in proposed Rule 110A-AEMI.
    The Exchange expects that the proposed rules for the DARTs program 
will set a high bar for prospective DART participants, and, while 
management anticipates starting the program with a limited group of 
DARTs, no specific upper limit on the number of DARTs is anticipated. 
In addition to the requirements described above, DARTs shall be 
required to meet eligibility criteria similar to those specified in the 
SROT program, which criteria will include:
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    \8\ See proposed Rule 110A-AEMI(b)(i), which requires DARTs to 
``provide continuous two-sided quotations in all assigned securities 
* * * .'' This basic market maker requirement mirrors the definition 
of ``market maker'' set forth in Section 3(a)(38) of the Act, which 
requires a dealer in the security involved to hold himself out ``as 
being willing to buy and sell such security for his own account on a 
regular or continuous basis.'' The following additional regulatory 
requirements will be imposed by proposed Rule 110A-AEMI(b)(ii): 
``With respect to each security to which he/she is assigned by the 
Exchange, a DART's transactions must constitute a course of dealings 
reasonably calculated to contribute to the maintenance of a fair and 
orderly market. In connection with this function, a DART is required 
to make competitive bids and offers as reasonably necessary to 
contribute to the maintenance of a fair and orderly market and shall 
engage, to a reasonable degree under the existing circumstances, in 
dealings for his/her own account when there exists a lack of price 
continuity, a temporary disparity between the supply of and demand 
for the security(ies) in which he/she is trading, or a temporary 
distortion of the price relationships between the security(ies) in 
which he/she is trading and the security(ies) underlying or 
otherwise related to such security(ies).''
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     Adequacy of resources including capital, technology and 
personnel;
     history of stability, superior electronic capacity, and 
superior operational capacity;
     level of market-making and/or specialist experience in a 
broad array of securities;
     ability to interact with order flow in all types of 
markets;
     existence of order flow commitments;
     willingness and ability to make competitive markets on the 
Exchange and otherwise promote the Exchange in a manner that is likely 
to enhance the ability of the Exchange to compete successfully for 
order flow in the ETF securities it trades;
     the number of member organizations requesting approval to 
act as a DART; and
     ability to transact in any ETF underlying markets.
    The Exchange would use the factor relating to the existence of 
order flow commitments to evaluate existing order flow commitments 
between a DART applicant and order flow providers. A future change to, 
or termination of, any such commitments would not be used by the 
Exchange at any point in the

[[Page 74377]]

future to terminate or take remedial action against a DART. 
Furthermore, the Exchange would not take remedial action solely because 
orders subject to any such commitments were not subsequently routed to 
the Exchange. The factor relating to willingness to promote the 
Exchange includes assisting in meeting and educating market 
participants, maintaining communications with member firms in order to 
be responsive to suggestions and complaints, responding to suggestions 
and complaints, and other similar activities. The Exchange would use 
this criterion to determine which applicants would best be able to 
enhance the competitiveness of the Exchange. The Exchange would not 
apply this factor to in any way restrict, either directly or 
indirectly, a DART's activities as a market maker or specialist on 
other exchanges, or to restrict how a DART handles orders it holds in a 
fiduciary capacity to which it owes a duty of best execution.
    The regulatory requirements applicable to DARTs will be surveilled 
for by the FINRA Amex Regulation Division (``FINRA Amex'') consistent 
with current surveillance procedures for Registered Traders on the 
Exchange. FINRA Amex staff will work with Amex technical staff on 
planning the necessary changes to AEMI to capture required surveillance 
data and in surveilling the increased number of market makers that the 
program is expected to attract. Adjustments to current technology and 
surveillance procedures will likely also be necessitated by the fact 
that the DARTs will not be physically located on the floor of the 
Exchange.
    DARTs will interface with the Amex's Floor Officials in the case of 
trade disputes substantially in accordance with existing procedures 
used for SROTs, another off-floor market participant. DARTs accordingly 
will be required to designate persons on- and/or off-floor to be in 
direct real-time contact with Floor Officials on such matters.\9\
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    \9\ In accordance with the current Amex service desk written 
procedures manual, SROTs have floor representation through their 
affiliated member firm or clearing entity. Service desk personnel 
have direct contact with the SROTs by telephone and e-mail. An SROT 
can request a trade review under obvious error rules through initial 
contact with the service desk, which will take specified follow-up 
steps. The service desk serves as the liaison between the SROT and 
floor activity, and in all situations requiring involvement by the 
Trading Floor Regulatory Liaison Group and a Floor Official. The 
service desk, in a customer service capacity, will present all data 
and communicate the SROT requests and follow-up detail to the 
appropriate parties. Documentation associated with corrective 
actions and/or floor rulings is presented to the SROT's on-floor 
representation for signature/stamp of approval and relevant 
documentation is recorded and saved. In situations involving clearly 
erroneous transactions or other events involving the SROT (although 
not initiated by the SROT), the Amex service desk will contact the 
SROT by phone or e-mail to provide notification of a possible 
dispute involving one or more SROT trades.
    A similar provision relating to DARTs will be added to the 
manual. However, Amex has recently received Commission approval of a 
proposed rule change making an on-floor presence to resolve trade 
disputes optional, with an off-floor presence to resolve disputes 
mandatory. Consequently, corresponding changes will be made to the 
above-referenced manual provisions. See Securities Exchange Act 
Release No. 56882 (December 3, 2007), 72 FR 69261 (December 7, 2007) 
(approving File No. SR-Amex-2007-56).
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    Regulation M will apply to DARTs in the same way that it applies to 
any other market participants, as will Amex Rule 193 to the extent the 
DART is affiliated with a Specialist member organization. However, no 
expansion of the application of Amex Rule 193 beyond current practice 
is intended.\10\
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    \10\ The language in Rule 110A-AEMI(c)(ii) cross-referencing 
Amex Rule 193 is substantively identical to language also contained 
in Amex Rules 993-ANTE(d)(iii) (Supplemental Registered Options 
Traders) and 994-ANTE(d)(iii) (Remote Registered Options Traders), 
neither of which have been interpreted to expand the applicability 
of Amex Rule 193 beyond affiliates of Specialists.
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    Finally, the Comment Letter had observed that a provision in 
previously proposed Rule 110A-AEMI(a) relating to minimum capital 
requirements for DARTs is unnecessary due to its current 
inapplicability to DARTs (who will be subject to the Commission's net 
capital rule).\11\ The Exchange has eliminated the provision from the 
rule change proposed herein.
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    \11\ Rule 15c3-1 under the Act, 17 CFR 240.15c3-1.
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    The specific AEMI rules to which changes are being proposed are 
discussed below.

Rule 110A-AEMI

Designated Amex Remote Traders
    This proposed new rule will contain the basic requirements for 
DARTs as described herein, in the same manner that Rule 110-AEMI 
contains the basic requirements for Registered Traders.

Rule 1A-AEMI

Applicability, Definitions, References and Phase-In
    The Exchange is proposing revisions to Rule 1A-AEMI in order to (1) 
update the definition of the AEMI Book to include electronic 
submissions from DARTs, (2) provide that a Crowd Order includes any bid 
or offer in the AEMI Book entered by a DART, (3) provide a definition 
of a DART with a cross-reference to proposed Rule 110A-AEMI, (4) update 
the definition of the Specialist Order Book to exclude bids and offers 
of DARTs, and (5) make a minor unrelated correction to the definition 
of Exchange Traded Funds (``ETFs'').

Rule 109-AEMI

``Stopping'' Stock
    The Exchange proposes to revise Rule 109-AEMI to add DARTs to the 
list of Amex market participants prohibited from granting or accepting 
a stop with respect to a security traded in AEMI.

Rule 112-AEMI

Suspension of Registration of Registered Trader or Designated Amex 
Remote Trader
    The Exchange is proposing to add a provision to this rule to 
provide for the suspension of the registration of a DART under 
circumstances similar to the current provision that provides for the 
suspension of a Registered Trader. Both types of participants are 
market makers with respect to securities traded in AEMI.

Rule 115-AEMI

Exchange Procedures for Use of Unusual Market Exception
    The Exchange proposes to revise Rule 115-AEMI to provide procedures 
that will cover situations in which a DART is unable to publish 
quotations or is streaming in incorrect quotes under unusual market 
conditions. The Exchange also is proposing to correct an inaccuracy in 
the current rule in order to clarify that such issues with respect to 
Registered Traders are handled via the Service Desk and not by a Floor 
Official.

Rule 123-AEMI

Manner of Bidding and Offering
    The Exchange is proposing revisions to this rule to provide that 
AEMI shall accept electronic bids and offers from DARTs and include 
them in the AEMI Book. The proposed changes would also place DARTs on a 
par with Specialists and Registered Traders in terms of their ability 
to stream bids and offers into AEMI at multiple price levels (with the 
maximum number being changed from five to four to reflect current AEMI 
system capabilities) and would require (as with Specialists and 
Registered Traders) that all quotes provided be two-sided. A DART would 
also be prohibited from streaming in a quote that locks or crosses an 
existing quote that the same DART has previously streamed in for the 
same security.

[[Page 74378]]

Rule 128A-AEMI

Automatic Execution
    The Exchange is proposing two minor changes to Rule 128A-AEMI so 
that DARTs will be treated in the same manner as Registered Traders in 
connection with certain automatic executions when a DART's quotation 
(1) matches the APQ on the other side of the market or (2) would lock 
or cross the APQ in certain circumstances.

Rule 128B-AEMI

Auction Trades
    The changes being proposed to this rule would exclude DARTs from 
participation in any post-trade allocation in connection with an 
auction, as described above.

Rule 719-AEMI

Comparison of Exchange Transactions
    The Exchange is proposing to add DARTs to one of the equity account 
type codes used for market maker transactions in the AEMI securities in 
which they are registered.

Rule 957

Accounts, Orders and Records of Registered Traders, Designated Amex 
Remote Traders, Specialists and Associated Persons
    The Exchange is proposing changes to Rule 957 that will place the 
same requirements on DARTs that Registered Traders are subject to with 
respect to reporting certain trading accounts and orders to the 
Exchange and producing books, records and other information pertaining 
to certain transactions.
2. Statutory Basis
    The proposed rule change is designed to be consistent with 
Regulation NMS, as well as consistent with Section 6(b) of the Act,\12\ 
in general, and furthers the objectives of Section 6(b)(5),\13\ in 
particular, in that it is 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 national market system, and, in general, 
to protect investors and the public interest.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The proposed rule change does not impose any burden on competition 
that is not necessary or appropriate in furtherance of the purposes of 
the Act. The Exchange notes that a substantial portion of the Comment 
Letter on the Exchange's earlier rule filing on DARTs was devoted to 
business-side critiques of how best to allocate Amex resources to craft 
a market structure that will best ensure Amex's future success. The 
suggestion was made that adding DARTs to the Amex would somehow degrade 
market quality and injure Amex's competitive position. However, Amex 
management believes that, in the post-Regulation NMS world, it is 
essential that the Exchange's existing structure be enhanced by the 
introduction of additional quoting participants, while preserving those 
aspects of the Specialist system that order flow providers still value. 
Combined with other changes to Amex's market structure, Amex management 
believes that the addition of DARTs will create additional resident 
liquidity at the Amex needed to better compete with other trading 
centers for order flow.
    Further, the Exchange notes that most of the concerns expressed in 
the Comment Letter regarding the potential negative impact of the DARTs 
program on competition seemed focused on preventing the introduction of 
competitive market makers into the marketplace for equities, as opposed 
to the marketplace for ETFs in which market makers (Registered Traders) 
already participate.\14\ Now that the proposed scope of the DARTs 
program is limited to ETFs only, such concerns--with which the Exchange 
takes strong issue in any event--are moot. Other statements in the 
Comment Letter regarding the stabilization rules are moot for the same 
reason.
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    \14\ For example, the Comment Letter at page 2 states, ``This 
business as usual approach entirely ignores the fact that Registered 
Traders are not allowed to make markets in equities, which DARTs 
would be entitled to do should the Proposal be approved'' and ``we 
believe that the introduction of market makers into the Exchange's 
equity marketplace raises a number of significant concerns.'' In 
addition, the Comment Letter at page 3 states, ``While it is true 
that the Proposal appears to leave the role of equity specialists 
unchanged, the introduction of market makers, whether they act from 
on or off-floor, into the Amex's equity marketplace, is clearly 
duplicative of the specialist function.''
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C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received from Members, Participants or Others

    As noted in Section II.A.(1) above, the Comment Letter was the only 
comment letter received on the Exchange's earlier DARTs rule filing 
that relates to the substance of the rule change proposed herein, and 
the Exchange has addressed herein a number of issues raised in that 
letter.

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

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be 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 e-mail to rule-comments@sec.gov. Please include 

File Number SR-Amex-2007-138 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Amex-2007-138. This file 
number should be included on the subject line if e-mail 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 inspection and 
copying in the Commission's Public Reference Room, 100 F Street, NE., 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m.

[[Page 74379]]

Copies of such filing also will be available for inspection and copying 
at the principal office of the Amex. 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 Number SR-Amex-2007-138 and should be submitted on 
or before January 22, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-25351 Filed 12-28-07; 8:45 am]

BILLING CODE 8011-01-P
