[Federal Register Volume 83, Number 185 (Monday, September 24, 2018)]
[Notices]
[Pages 48350-48353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20658]



[[Page 48350]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-84183; File No. SR-NYSE-2018-28]


Self-Regulatory Organizations; New York Stock Exchange LLC; Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change To Make Permanent the Retail Liquidity Program 
Pilot, Which Is Set To Expire on December 31, 2018

September 18, 2018.

I. Introduction

    On June 4, 2018, New York Stock Exchange LLC (``Exchange'') filed 
with the Securities and Exchange Commission (``Commission''), pursuant 
to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Exchange 
Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to make 
permanent the Exchange's Retail Liquidity Program Pilot (the 
``Program''). The proposed rule change was published for comment in the 
Federal Register on June 21, 2018.\3\ On July 31, 2018, 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.\4\ The 
Commission received no comment letters on the proposed rule change. 
This order institutes proceedings under Section 19(b)(2)(B) of the 
Exchange Act \5\ to 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. 83454 (June 15, 
2018), 83 FR 28874 (``Notice'').
    \4\ See Securities Exchange Act Release No. 83749, 83 FR 38393 
(August 6, 2018). The Commission designated September 19, 2018, as 
the date by which the Commission shall approve or disapprove, or 
institute proceedings to determine whether to disapprove, the 
proposed rule change.
    \5\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Change

    The Exchange proposes to make permanent Exchange Rule 107C, which 
sets forth the rules and procedures governing the Program. The Program 
was adopted to create a new class of market participants called Retail 
Liquidity Providers (``RLPs'') that would be able to provide potential 
price improvement to retail order flow. To do so, an RLP submits a 
Retail Price Improvement Order (``RPI''), which is a non-displayed 
order that is priced at least $0.001 better than the best protected bid 
(``PBB'') or best protected offer (``PBO'') (``PBBO''), as such terms 
are defined in Regulation NMS, and that is identified as such.\6\ After 
an RPI is submitted, the Exchange disseminates an indicator through its 
proprietary data feeds or through the Consolidation Quotation System, 
known as the Retail Liquidity Identifier, indicating that such interest 
exists.\7\ The Retail Liquidity Identifier reflects the symbol for the 
particular security and the side (buy or sell) of the RPI interest, but 
does not include the price or size of the RPI interest. In response to 
the Retail Liquidity Identifier, another class of market participants 
created under the Program, known as Retail Member Organizations 
(``RMOs''),\8\ may submit a Retail Order \9\ to interact with available 
contra-side RPIs.
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    \6\ See NYSE Rule 107C(a)(4).
    \7\ See NYSE Rule 107C(j).
    \8\ See NYSE Rule 107C(a)(2).
    \9\ See NYSE Rule 107C(a)(3).
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    To qualify as an RMO, a member organization must conduct a retail 
business or route retail orders on behalf of another broker-dealer.\10\ 
A member organization must submit the following to the Exchange for 
approval: (i) An application form, (ii) supporting documentation, and 
(iii) an attestation that substantially all orders sumibtted as retail 
orders will qualify as such. The Program provides for an appeal process 
for a disapproved applicant, and a withdraw process for RMOs. RMOs must 
have written policies and procedures reasonably designed to assure that 
they will only designate orders as Retail Orders if all requirements of 
a Retail Order are met.
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    \10\ Conducting a retail business includes carrying retail 
custsomer accounts on a fully disclosed basis. See NYSE Rule 
107C(b)(1).
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    To qualify as an RLP, a member organization must submit an 
application form and supporting documentation to the Exchange for 
approval. A disapproved applicant may appeal or reapply 90 days after 
the disapproval notice. RLPs may only enter RPI orders electronically 
and directly into Exchange systems. In each of its assigned securities, 
RLPs must maintain certain requirements to have RPI Orders that are 
better than the PBB or PBO at least five percent of the trading day. 
RLPs may enter RPI Orders in non-assigned securities without regard to 
the five percent requirement.
    RMOs could be disqualified if they submit Retail Orders that do not 
meet the requirements of Retail Orders. If disqualified, RMOs may 
appeal and reapply. RLPs could lose their assigned securities or be 
disqualified if they do not meet the five percent requirement for three 
consecutive months. If disqualified, the RLP could appeal or reapply. 
The Exchange has set up a Program Panel to review disapproval or 
disqualification.
    Under the Program, there are three types of Retail Orders. A Type 1 
Retail Order will interact only with available contra-side RPI Orders 
and Mid-Point Liquidity Orders (``MPL Orders''). A Type 1 Retail Order 
will not interact with other available contra-side interst or route to 
away markets. The unexecuted portion of a Type 1 Retail Order will be 
immediately cancelled. A Type 2 Retail Order will interact first with 
available contra-side RPI Orders and MPL Orders. Any remaining portion 
will be executed as a Regulation NMS-compliant immediate-or-cancel 
order.\11\ A Type 3 Retail Order will interact first with contra-side 
RPI Orders and MPL Orders. Any remaining portion will be executed as an 
NYSE immediate-or-cancel order.\12\
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    \11\ A Regulation NMS compliant immediate-or-cancel order will 
be automatically executed against the displayed quotation up to its 
full size and sweep the Exchange book without routing away. Portions 
not executed will be immediately cancelled. See NYSE Rule 
13(b)(2)(A).
    \12\ An NYSE immediate-or-cancel order will be automatically 
executed against the displayed quotation up to its full size and 
sweep the Exchange book, with portions routed to away markets if an 
execution would trade through a protected quotation in compliance 
with Regulation NMS. Portions not executed will be immediately 
cancelled. See NYSE Rule 13(b)(2)(B).
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    The Program provides that RPI Orders will be ranked and allocated 
according to price-time priority. The Program considers all eligible 
RPI Orders and MPL Orders to determine the price to execute a Retail 
Order. If there are only RPI Orders, then execution occurs at the price 
level that completes the incoming order's execution. If there are only 
MPL Orders, then a Retail Order will executes at the mid-point of the 
PBBO. If both RPI and MPL Orders are present, the Exchange will 
evaluate at the price level at which an incoming Retail Order will 
execute in full (``clean up price''). If the clean up price is equal to 
the mid-point of the PBBO, RPI Orders will receive priority over MPL 
Orders, and Retail Orders will execute against both RPI and Mid-Point 
Liquidity Orders at the midpoint. If the clean up price is worse than 
the mid-point of the PBBO, a Retail Order will execute first with the 
MPL Orders at the midpoint of the PBBO, and any remaining Retail Orders 
will execute with the RPI Orders at the clean up price. If the clean up 
price is better than the mid-point of the PBBO, then a Retail Order 
will execute against RPI Orders at the clean up price and will ignore 
the MPL Orders.

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    A more detailed description of how the Program operates, including, 
but not limited to, how a member organization may qualify and apply to 
become a RMO; the requirements of RLPs; different types of Retail 
Orders; and prioriy and order allocation of RPI orders is more fully 
set forth in the Notice.\13\
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    \13\ See Notice, supra note 3, at 28875-78.
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    In July 2012, the Commission approved the Program on a pilot basis 
(``RLP Approval Order'').\14\ As set forth in the RLP Approval Order, 
the Commission approved the Program on a pilot basis to allow the 
Exchange and market participants to gain valuable practical experience 
with the Program during the pilot period, and to allow the Commission 
to determine whether modifications to the Program were necessary or 
appropriate prior to any Commission decision to approve the Program on 
a permanent basis.\15\ Indeed, the Exchange has modified aspects of 
Exchange Rule 107C on several occasions during the pilot period.\16\ 
Additionally, as part of the RLP Approval Order, the Exchange agreed to 
provide the Commission with a significant amount of data to assist the 
Commission's evaluation of the Program.\17\ Specifically, the Exchange 
represented that it would ``produce data throughout the pilot, which 
will include statistics about participation, the frequency and level of 
price improvement provided by the Program, and any effects on the 
broader market structure.'' \18\ The Commission expected the Exchange 
to monitor the scope and operation of the Program and study the data 
produced during that time with respect to such issues.\19\
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    \14\ See Securities Exchange Act Release No. 67347 (July 3, 
2012), 77 FR 40673, 74 (July 10, 2012) (SR-NYSE-2011-55). In 
addition to approving the Program on a pilot basis, the Commission 
granted the Exchange's request for exemptive relief from Rule 612 of 
Regulation NMS, 17 CFR 242.612 (``Sub-Penny Rule''), which among 
other things prohibits a national securities exchange from accepting 
or ranking orders priced greater than $1.00 per share in an 
increment smaller than $0.01. See id. The Sub-Penny Rule exemption 
coincedes with the Program's expiration date.
    \15\ See id.
    \16\ See Securities Exchange Act Release Nos. 68709 (January 23, 
2013) 78 FR 6160 (January 29, 2013) (NYSE-2013-04) (amending 
Exchange Rule 107C to clarify that RLPs may act in a non-RLP 
capacity for those securities to which RLP is not assigned, and as a 
result, may submit RPI Orders for those securities); 69513 (May 3, 
2013) 78 FR 27261(May 9, 2013) (NYSE-2013-08) (allowing an RMO to 
attest that ``substantially all'' orders submitted to the Program 
will qualify as Retail Orders); 69103 (March 11, 2013) 78 FR 16547 
(March 15, 2013) (NYSE-2013-20) (amending Rule 107C to clarify that 
an RMO may submit Retail Orders to the Program in a riskless 
principal capacity as well as in an agency capacity, provided that 
(i) the entry of such riskless principal orders meets the 
requirements of FINRA Rule 5320.03, including that the RMO maintains 
supervisory systems to reconstruct, in a time-sequenced manner, all 
Retail Orders that are entered on a riskless principal basis; and 
(ii) the RMO does not include non-retail orders together with the 
Retail Orders as part of the riskless principal transaction); 71330 
(January 16, 2014) 79 FR 3895 (January 23, 2014) (NYSE-2013-71) 
(incorporating Midpoint Passive Liquidity Orders into the Program); 
and 76553 (December 5, 2015 80 FR 46607 (December 9, 2015) (NYSE-
2015-59) (amending Rule 107C to distinguish between orders routed on 
behalf of other broker-dealers and orders routed on behalf of 
introduced retail accounts that are carried on a fully disclosed 
basis).
    \17\ See RLP Approval Order, supra note 15, at 40681.
    \18\ See id.
    \19\ See id.
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    Although the pilot period was originally scheduled to end on July 
31, 2013, the Exchange filed to extend the operation of the pilot on 
several occasions, with the most recent extension being to provide more 
time for the Exchange to prepare this proposed rule change.\20\ The 
pilot is currently set to expire on December 31, 2018.
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    \20\ See Securities Exchange Act Release Nos. 83540 (June 28, 
2018), 83 FR 31234 (July 3, 2018) (SR-NYSE-2018-29) (extending pilot 
until December 31, 2018); 82230 (December 7, 2017), 82 FR 58667 
(December 13, 2017) (SR-NYSE-2017-64) (extending pilot until June 
30, 2018); 80844 (June 1, 2017), 82 FR 26562 (June 7, 2017) (SR-
NYSE-2017-26) (extending pilot until December 31, 2017); 79493 
(December 7, 2016), 81 FR 90019 (December 13, 2016) (SR-NYSE-2016-
82) (extending pilot until June 30, 2017); 78600 (August 17, 2016), 
81 FR 57642 (August 23, 2016) (SR-NYSE-2016-54) (extending pilot 
until December 31, 2016); 77426 (March 23, 2016), 81 FR 17533 (March 
29, 2016) (SR-NYSE-2016-25) (extending pilot until August 31, 2016); 
5993 (September 28, 2015), 80 FR 59844 (October 2, 2015) (SR-NYSE-
2015-41) (extending pilot until March 31, 2016); 74454 (March 6, 
2015), 80 FR 13054 (March 12, 2015) (SR-NYSE-2015-10) (extending 
pilot until September 30, 2015); 72629 (July 16, 2014), 79 FR 42564 
(July 22, 2014) (NYSE-2014-35) (extending pilot until March 31, 
2015); and No. 70096 (Aug. 2, 2013), 78 FR 48520 (Aug. 8, 2013) (SR-
NYSE-2013-48) (extending pilot until July 31, 2014).
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    The Exchange represents that as part of its assessment of the 
Program's potential impact, it has posted core weekly and daily summary 
data on its website for public investors to review, and that it has 
provided additional data to the Commission regarding potential investor 
benefits, including the level of price improvement provided by the 
Program.\21\ In addition, the Notice includes statistics about 
participation, frequency and level of price improvement and effective 
and realized spreads, upon which the Exchange relies to summarize its 
overall assessment of the Program.\22\ As more fully set forth in the 
Notice, the Exchange concludes that the Program has achieved its goal 
of attracting retail order flow and allowing such order flow to receive 
potential price improvement.\23\ Additionally, the Exchange concludes 
that the data relating to the Program ``demonstrates that the Program 
had an overall negligible impact on broader market structure.'' \24\
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    \21\ See Notice, supra note 3, at 28878.
    \22\ See id. at 28878-83
    \23\ See id. at 28879.
    \24\ See id.
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III. Proceedings To Determine Whether To Approve or Disapprove SR-NYSE-
2018-28 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Exchange Act \25\ 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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    \25\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Exchange Act,\26\ 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 
Sections 6(b)(5) \27\ and 6(b)(8) \28\ of the Exchange Act. Section 
6(b)(5) of the Exchange Act requires that the rules of a national 
securities exchange be designed, among other things, 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, and not 
be designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers. Section 6(b)(8) of the Exchange Act requires that 
the rules of a national securities exchange not impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Exchange Act.
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    \26\ Id.
    \27\ 15 U.S.C. 78f(b)(5).
    \28\ 15 U.S.C. 78f(b)(8).
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    The Commission received numerous comment letters expressing 
concerns with respect to the Program when it was first proposed and 
eventually approved

[[Page 48352]]

on a pilot basis.\29\ The Program was intended to create additional 
price improvement opportunities for retail investors by segmenting 
retail order flow on the Exchange.\30\ When the Commission initially 
approved the Program on a pilot basis, it explained that it would 
monitor the Program throughout the pilot period for its potential 
effects on public price discovery and on the broader market 
structure.\31\ The Commission expressed its view that the Program 
should not cause a major shift in market structure, but instead, it 
would closely replicate the trading dynamics that exist in the over-
the-counter markets to present another competitive venue for retail 
order flow execution.\32\ As explained above, the Exchange provides an 
analysis of what it considers to be the economic benefits for retail 
investors and the marketplace flowing from operation of the 
Program.\33\ The Exchange also concludes, among other things, that the 
Program had an overall negligible impact on the broader market 
structure.\34\
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    \29\ See RLP Approval Order, supra note 15, at 40673 n.4.
    \30\ See id., at 40679.
    \31\ See id., at 40680.
    \32\ See id.
    \33\ See supra notes 24-26, and Notice, supra note 3, at 28878-
83.
    \34\ See id.
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    Under the Commission's Rules of Practice, the ``burden to 
demonstrate that a proposed rule change is consistent with the [Act] 
and the rules and regulations issued thereunder . . . is on the [SRO] 
that proposed the rule change.'' \35\ The description of a proposed 
rule change, its purpose and operation, its effect, and a legal 
analysis of its consistency with applicable requirements must all be 
sufficiently detailed and specific to support an affirmative Commission 
finding,\36\ and any failure of an SRO to provide this information may 
result in the Commission not having a sufficient basis to make an 
affirmative finding that a proposed rule change is consistent with the 
Act and the applicable rules and regulations.\37\ Moreover, 
``unquestioning reliance'' on an SRO's representations in a proposed 
rule change would not be sufficient to justify Commission approval of a 
proposed rule change.\38\
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    \35\ Rule 700(b)(3), Commission Rules of Practice, 17 CFR 
201.700(b)(3).
    \36\ See id.
    \37\ See id.
    \38\ See Susquehanna Int'l Group, LLP v. Securities and Exchange 
Commission, 866 F.3d 442, 446-47 (D.C. Cir. 2017) (rejecting the 
Commission's reliance on an SRO's own determinations without 
sufficient evidence of the basis for such determinations).
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    The Commission questions whether the information and analysis 
provided by the Exchange in the Notice support the Exchange's 
conclusions that the Program has achieved its goals, including whether 
the Program has had an overall negligible impact on broader market 
structure. The Commission seeks additional information and analysis 
concerning the Program's impact on the broader market; for example, 
additional information to support the view that the Program has not had 
a material adverse impact on market quality, and consideration of any 
effects that fees and rebates may have had on the operation of the 
Program. The Commission believes it is appropriate to institute 
proceedings to allow for additional consideration and comment on the 
issues raised herein, any potential response to comments or 
supplemental information provided by the Exchange, and any additional 
independent analysis by the Commission. The Commission believes that 
these issues raise questions as to whether the the Exchange has met its 
burden to demonstrate, based on the data and analysis provided, that 
permanent approval of the Program is consistent with the Act, and 
specifically, with its requirements that the Program be designed to 
perfect the mechanism of a free and open market and the national market 
system, protect investors and the public interest, and not be unfairly 
discriminatory; or not impose an unnecessary or inappropriate burden on 
competition.\39\
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    \39\ See 15 U.S.C. 78f(b)(4), (5), and (8).
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IV. 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 Sections 6(b)(5) and 6(b)(8), or any other provision of 
the Exchange 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.\40\
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    \40\ Section 19(b)(2) of the Exchange 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 October 15, 2018. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
October 29, 2018.
    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-2018-28 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 Numbers SR-NYSE-2018-28. 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 these filings 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

[[Page 48353]]

submissions should refer to File Number SR-NYSE-2018-28 and should be 
submitted on or before October 15, 2018. Rebuttal comments should be 
submitted by October 29, 2018.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\41\
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    \41\ 17 CFR 200.30-3(a)(57).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-20658 Filed 9-21-18; 8:45 am]
 BILLING CODE 8011-01-P


