[Federal Register Volume 87, Number 175 (Monday, September 12, 2022)]
[Notices]
[Pages 55863-55866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19580]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95676; File No. SR-BX-2022-014]


Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Enhance the BX 
Retail Price Improvement Program

September 6, 2022.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934

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(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on August 24, 2022, Nasdaq BX, Inc. (``BX'' or ``Exchange'') filed with 
the Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I, II, and III below, which 
Items have been prepared by the Exchange. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Equity 4, Rule 4780 to enhance the 
BX Retail Price Improvement Program, as described further below. The 
text of the proposed rule change is available on the Exchange's website 
at https://listingcenter.nasdaq.com/rulebook/bx/rules, at the principal 
office of the Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The purpose of the proposed rule change is to amend Equity 4, Rule 
4780 \3\ to enhance the BX Retail Price Improvement Program in a manner 
that will attract more liquidity providers to participate in the 
Program. Specifically, the Exchange proposes to amend paragraph (e) of 
Rule 4780 to provide Participants a choice whether to disseminate the 
Retail Liquidity Identifier (defined below) when submitting Retail 
Price Improvement interest to the Exchange.
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    \3\ Hereinafter, references to the Rule 4000 Series shall mean 
the Rule Series set forth in Equity 4 of the Exchange's Rulebook.
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Retail Price Improvement Program (``RPI Program'')
    In June 2019, the Commission approved making permanent the 
Exchange's pilot RPI Program.\4\ The RPI Program is designed to attract 
retail order flow to the Exchange and allow such order flow to receive 
potential price improvement. The RPI Program is limited to trades 
occurring at prices equal to or greater than $1.00 per share. Under the 
RPI Program, Retail Member Organizations are eligible to submit Retail 
Orders to the Exchange. BX members (``Members'') are permitted to 
provide potential price improvement for Retail Orders in the form of 
non-displayed interest that is priced more aggressively than the 
Protected National Best Bid or Offer (``Protected NBBO'').\5\ The 
Exchange publishes a price improvement indicator notifying market 
participants that such price improving liquidity is available.
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    \4\ Securities Exchange Act Release No. 86194 (June 25, 2019), 
84 FR 31385 (July 1, 2019) (SR-BX-2019-011) (``RPI Approval 
Order''). In addition to approving the proposal to make the RPI 
Program permanent, the Commission granted the Exchange's request for 
limited 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.
    \5\ The term Protected Quotation is defined in Equity 1, Section 
1(a)(16) and has the same meaning as is set forth in Regulation NMS 
Rule 600. The Protected NBBO is the best-priced protected bid and 
offer. Generally, the Protected NBBO and the national best bid and 
offer (``NBBO'') will be the same. However, a market center is not 
required to route to the NBBO if that market center is subject to an 
exception under Regulation NMS Rule 611(b)(1) or if such NBBO is 
otherwise not available for an automatic execution. In such case, 
the Protected NBBO would be the best-priced protected bid or offer 
to which a market center must route interest pursuant to Regulation 
NMS Rule 611.
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    The SEC approved making the RPI Program permanent, in part, because 
it concluded, ``the Exchange's Program data and analysis about price 
improvement for retail investors . . . supports the Exchange's 
conclusion that the program provides meaningful price improvement to 
retail investors on a regulated exchange venue and has not demonstrably 
caused harm to the broader market.'' \6\ In approving the pilot RPI 
Program, the Commission found that ``while the Program would treat 
retail order flow differently from order flow submitted by other market 
participants, such segmentation would not be inconsistent with Section 
6(b)(5) of the Act, which requires that the rules of an exchange are 
not designed to permit unfair discrimination.'' \7\ As the SEC 
acknowledged, the retail order segmentation was designed to create 
greater competition for retail investor orders thereby creating more 
competition for these orders on transparent and well-regulated 
exchanges. This would help to ensure that retail investors benefit from 
competitive price improvement that exchange-based liquidity providers 
provide.
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    \6\ See RPI Approval Order, supra note 4 at 31387.
    \7\ Securities Exchange Act Release No. 73702 (November 28, 
2014), 79 FR 72049, 72051 (December 4, 2014) (SR-BX-2014-048).
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Retail Liquidity Identifier
    Currently, the Exchange disseminates an identifier when RPI 
interest priced at least $0.001 better than the Exchange's Protected 
Bid or Protected Offer for a particular security is available in the 
System (the ``Retail Liquidity Identifier''). The Retail Liquidity 
Identifier is disseminated through consolidated data streams (i.e., 
pursuant to the Consolidated Tape Association Plan/Consolidated 
Quotation System, or CTA/CQS, for Tape A and Tape B securities, and The 
Nasdaq Stock Market, LLC (``Nasdaq'') UTP Plan for Tape C securities) 
as well as through proprietary Exchange data feeds.\8\ The Retail 
Liquidity Identifier reflects the symbol and the side (buy or sell) of 
the RPI interest, but does not include the price or size of the RPI 
interest. In particular, CQS and UTP quoting outputs include a field 
for codes related to the Retail Liquidity Identifier. The codes 
indicate RPI interest that is priced better than the Exchange's 
Protected Bid or Protected Offer by at least the minimum level of price 
improvement as required by the RPI Program.
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    \8\ The Exchange notes that the Retail Liquidity Identifier for 
Tape A and Tape B securities are disseminated pursuant to the CTA/
CQS Plan. The identifier is also available through the consolidated 
public market data stream for Tape C securities. The processor for 
the Nasdaq UTP quotation stream disseminates the Retail Liquidity 
Identifier and analogous identifiers from other market centers that 
operate programs similar to the RPI Program.
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    The Exchange proposes to amend Rule 4780(e) to enable Participants 
that send Retail Price Improvement Orders to elect whether to 
disseminate the Retail Liquidity Identifier. The Exchange believes that 
providing Participants with the option to opt out of dissemination of 
the Retail Liquidity Identifier is appropriate in order to increase 
liquidity in the RPI Program and improve price improvement for retail 
investors. The Exchange believes that the mandatory use of the Retail 
Liquidity Identifier discourages some firms from providing liquidity to 
the RPI Program due to concerns around signaling to the market. The 
Exchange is confident that, by allowing firms to opt out of displaying 
the Retail Liquidity

[[Page 55865]]

Identifier, the Exchange would be able to increase participation in the 
RPI Program and generate additional price improvement to orders of 
retail investors.
    Although the Exchange expects that the proposed optionality 
relating to the Retail Liquidity Identifier would increase liquidity to 
the RPI Program, the Exchange also recognizes the value of the Retail 
Liquidity Identifier, which makes it clear that there is price 
improving liquidity available. Therefore, the Exchange will monitor the 
program in light of the change and, if necessary, propose modifications 
aimed at ensuring the program continues to operate consistent with its 
design and objectives.
Implementation Date
    The Exchange intends to introduce this new functionality no later 
than the Fourth Quarter of 2022. In any event, the Exchange will issue 
an Equities Trader Alert not less than 7 days prior to introducing the 
new functionality.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\9\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\10\ in particular, in that it is designed to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general to protect investors and the public 
interest, by promoting competition for retail order flow among 
execution venues and providing the potential for meaningful price 
improvement to orders of retail investors. The proposal would allow 
Participants to choose whether to disseminate the Retail Liquidity 
Identifier when Participants submit Retail Price Improvement Orders to 
the Exchange. By providing an option to opt out of disseminating the 
Retail Liquidity Identifier, the Exchange could attract more liquidity 
providers to interact with retail order flow.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
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    A significant percentage of retail order flow is executed off-
exchanges. The Exchange believes that it is appropriate to continue to 
improve the RPI Program to encourage on-exchange interaction with 
retail investor orders. The proposed changes to the RPI Program would 
increase competition among execution venues, encourage additional 
liquidity, and offer potential price improvement to retail investors. 
Increased competition for retail order flow could also lead to 
increased investor interest in trading securities and innovation within 
the market, thereby increasing the quality of the national market 
system.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The Exchange believes that, by 
allowing Participants to choose whether to disseminate the Retail 
Liquidity Identifier, the proposed rule change would enhance 
competition for retail order flow among execution venues. This change 
would encourage expansion of the RPI Program, thereby creating 
additional price improvement opportunities for retail orders and 
increasing competition between execution venues. All Participants would 
have the option to opt out of displaying the Retail Liquidity 
Identifier.
    The Exchange believes that the proposed rule changes would increase 
competitive interaction with retail investor orders which should lead 
to increased retail investor order activity on transparent and well-
regulated exchanges. This would help to ensure that retail investors 
benefit from competitive price improvement that exchange-based 
liquidity providers provide. The Exchange operates in a highly 
competitive market in which market participants can easily direct their 
orders to competing venues, including off-exchange venues. In such an 
environment, the Exchange must continually review and consider 
adjusting the services it offers and the requirements it imposes to 
remain competitive with other venues. Therefore, the Exchange believes 
that the proposed rule change reflects this competitive environment.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

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

    Because the foregoing proposed rule change does not: (i) 
significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \11\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\12\
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    \11\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \12\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings to 
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-BX-2022-014 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-BX-2022-014. 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

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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 offices 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-BX-
2022-014, and should be submitted on or before October 3, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-19580 Filed 9-9-22; 8:45 am]
BILLING CODE 8011-01-P


