[Federal Register Volume 88, Number 16 (Wednesday, January 25, 2023)]
[Notices]
[Pages 4862-4865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01401]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96716; File No. SR-NYSEARCA-2023-07]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7.31-
E(i)(2)

January 19, 2023.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that on January 12, 2023, NYSE Arca, Inc. (``NYSE Arca'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II 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\ 15 U.S.C. 78a.
    \3\ 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 Rule 7.31-E(i)(2) to enhance the 
Exchange's existing Self Trade Prevention (``STP'') modifiers. The 
proposed rule change is available on the Exchange's website at 
www.nyse.com, 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 self-regulatory organization 
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 those 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 parts of such statements.

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

1. Purpose
    The Exchange proposes to amend Rule 7.31-E(i)(2) to enhance the 
Exchange's existing Self Trade

[[Page 4863]]

Prevention (``STP'') modifiers. Specifically, the Exchange proposes to 
allow ETP Holders the option to apply STP modifiers to orders submitted 
not only from the same MPID, as the current rule provides, but also to 
orders submitted from (i) the same subidentifier of a particular MPID; 
(ii) other MPIDs associated with the same Client ID (as designated by 
the ETP Holder); and (iii) Affiliates of the ETP Holder.
Background
    Currently, Rule 7.31-E(i)(2) offers optional anti-internalization 
functionality to ETP Holders in the form of STP modifiers that enable 
an ETP Holder to prevent two of its orders from executing against each 
other. Currently, ETP Holders can set the STP modifier to apply at the 
market participant identifier (``MPID'') level. The STP modifier on the 
order with the most recent time stamp controls the interaction between 
two orders marked with STP modifiers. STP functionality assists market 
participants by allowing firms to better prevent unintended executions 
with themselves and to reduce the potential for ``wash sales'' that may 
occur as a result of the velocity of trading in a high-speed 
marketplace. STP functionality also assists market participants in 
reducing trading costs from unwanted executions potentially resulting 
from the interaction of executable buy and sell trading interest from 
the same firm.
    The Exchange notes that several equities exchanges--including IEX, 
Nasdaq, Nasdaq BX, Nasdaq Phlx, and MIAX Pearl Equities--have all 
recently amended their rules to provide additional levels at which 
orders may be grouped for the purposes of applying their anti-
internalization rules. As such, the proposed changes herein are not 
novel and are familiar to market participants.\4\
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    \4\ Several other equity exchanges recently amended their rules 
to allow affiliate grouping for their own anti-internalization 
functionality. See, e.g., Securities Exchange Act Release Nos. 96187 
(October 31, 2022), 87 FR 66764 (November 4, 2022) (SR-IEX-2022-08); 
96156 (October 25, 2022), 87 FR 65633 (October 31, 2022) (SR-BX-
2022-020); 96154 (October 25, 2022), 87 FR 65631 (October 31, 2022) 
(SR-Phlx-2022-43); 96069 (October 13, 2022), 87 FR 63558 (October 
19, 2022) (SR-NASDAQ-2022-56, implemented by SR-NASSDAQ-2022-60); 
and 96334 (November 16, 2022), 87 FR 71368 (November 22, 2022) (SR-
PEARL-2022-48).
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Proposed Amendment
    The Exchange proposes to amend the Rule 7.31-E(i)(2) in three ways, 
each of which would enhance ETP Holders' flexibility over the levels at 
which orders may be grouped for the purposes of applying the Exchange's 
existing STP modifiers.
    First, the Exchange proposes to amend the rule to permit an ETP 
Holder to set the STP modifiers to apply at the level of a 
subidentifier of an MPID. This change would allow ETP Holders to 
prevent orders sent from the same subidentifier of a particular MPID 
from executing against each other, but permit orders sent from 
different subidentifiers of the same MPID to interact.\5\
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    \5\ This functionality exists on the Exchange's affiliate 
exchange Arca Options, and as such is not novel and is familiar to 
market participants. See Arca Options Rule 6.62P-O(i)(2) (``An 
Aggressing Order or Aggressing Quote to buy (sell) designated with 
one of the STP modifiers in this paragraph will be prevented from 
trading with a resting order or quote to sell (buy) also designated 
with an STP modifier from the same MPID, and, if specified, any 
subidentifier of that MPID.'').
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    Second, the Exchange proposes to amend Rule 7.31-E(i)(2) to permit 
an ETP Holder to set the STP modifiers to prevent orders from different 
MPIDs from executing against each other. The proposed amendment would 
address this by allowing ETP Holders to apply STP modifiers at the 
level of ``Client ID,'' which would be an identifier designated by the 
ETP Holder. As proposed, a Client ID would function similarly to an 
MPID in that it would be a unique identifier assigned to an ETP Holder. 
The Exchange believes that this proposed enhancement would provide ETP 
Holders with greater flexibility in how they instruct the Exchange to 
apply STP modifiers to their orders. The Exchange notes that it is not 
novel for an exchange to provide its members with multiple methods by 
which to designate anti-internalization instructions.\6\
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    \6\ See, e.g., MIAX Pearl, LLC (``MIAX Pearl Equities'') Rule 
2614(f) (specifying that Self-Trade Prevention Modifiers will be 
applicable to orders ``from the same MPID, Exchange member 
identifier, trading group identifier, or Equity Member Affiliate 
(any such identifier, a `Unique Identifier')'').
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    Third, the Exchange proposes to amend Rule 7.31-E(i)(2) to permit 
ETP Holders to direct orders not to execute against orders entered 
across MPIDs associated with Affiliates of the ETP Holder that are also 
ETP Holders.\7\ This change would expand the availability of the STP 
functionality to ETP Holders that have divided their business 
activities between separate corporate entities without disadvantaging 
them when compared to ETP Holders that operate their business 
activities within a single corporate entity.
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    \7\ The proposed definition of ``Affiliate'' is identical to the 
one currently provided in the Exchange's Fee Schedule. See NYSE Arca 
Equities Fees and Charges, ``General'' section II(c) (``For purposes 
of this Fee Schedule, the term ``affiliate'' shall mean any ETP 
Holder under 75% common ownership or control of that ETP Holder.''). 
This 75% threshold is not novel. See, e.g., Nasdaq PHLX LLC 
(``Nasdaq PHLX'') Equity 4, Rule 3307(c).
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    The Exchange believes that these enhancements will all provide 
helpful flexibility for ETP Holders by expanding their ability to apply 
STP modifiers at multiple levels, including within a subidentifier of a 
single MPID, across multiple MPIDs of the same Client ID, and across 
multiple MPIDs of the ETP Holder and its Affiliates, in addition to at 
the MPID level as the current rule provides. These proposed changes 
would help ETP Holders better manage their order flow and prevent 
undesirable executions or the potential for ``wash sales'' that might 
otherwise occur.
    To effect these changes, the Exchange proposes to amend the first 
sentence of Rule 7.31-E(i)(2) and add a new sentence as follows 
(proposed text italicized, deletions in brackets): ``Any incoming order 
to buy (sell) designated with an STP modifier will be prevented from 
trading with a resting order to sell (buy) also designated with an STP 
modifier and from the same Client ID; the same MPID and, if specified, 
any subidentifier; or an Affiliate identifier (any such identifier, a 
``Unique Identifier''). For purposes of this rule, the term 
``Affiliate'' means any ETP Holder under 75% common ownership or 
control of that ETP Holder.'' The Exchange further proposes to replace 
references to ``MPID'' in Rules 7.31-E(i)(2)(A)-(D) with the term 
``Unique Identifier.''
    While this proposal would expand how an ETP Holder can designate 
orders with an STP modifier, nothing in this proposal would make 
substantive changes to the STP modifiers themselves or how they would 
function with respect to two orders interacting within a relevant 
level.
    The Exchange notes that, as with its current anti-internalization 
functionality, use of the proposed revised Rule 7.31-E(i)(2) will not 
alleviate or otherwise exempt ETP Holders from their best execution 
obligations. As such, ETP Holders using the proposed enhanced STP 
functionality will continue to be obligated to take appropriate steps 
to ensure that customer orders that do not execute because they were 
subject to anti-internalization ultimately receive the same price, or a 
better price, than they would have received had execution of the orders 
not been inhibited by anti-internalization.
Timing and Implementation
    The Exchange anticipates that the technology changes required to 
implement this proposed rule change will become available on a rolling 
basis,

[[Page 4864]]

beginning less than 30 days from the date of filing, to be completed by 
the end of the first quarter of 2023.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\8\ in general, and furthers the 
objectives of Section 6(b)(5) of the Act,\9\ in particular, because it 
is designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, 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 because it is not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
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    Specifically, the Exchange believes that the proposed rule change 
will remove impediments to and perfect the mechanism of a free and open 
market and a national market system and is consistent with the 
protection of investors and the public interest because enhancing how 
ETP Holders may apply STP modifiers will provide ETP Holders with 
additional flexibility with respect to how they implement self-trade 
protections provided by the Exchange that may better support their 
trading strategies.
    The Exchange believes that the proposed rule change does not 
unfairly discriminate among ETP Holders because the proposed STP 
protections will be available to all ETP Holders, and ETP Holders that 
prefer setting STP modifiers at the MPID level will still be able to do 
so. In addition, allowing ETP Holders to apply STP modifiers to trades 
submitted by their Affiliates that are also ETP Holders is intended to 
avoid disparate treatment of firms that have divided their various 
business activities between separate corporate entities as compared to 
firms that operate those business activities within a single corporate 
entity.
    Finally, the Exchange notes that other equity exchanges recently 
amended their rules to allow affiliate grouping for their own anti-
internalization functionality and similarly use a 75% threshold of 
common ownership for assessing whether such orders would be eligible 
for this enhancement.\10\ Consequently, the Exchange does not believe 
that this change raises new or novel issues not already considered by 
the Commission.
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    \10\ See supra notes 4 and 7.
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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 that is not necessary or appropriate 
in furtherance of the purposes of the Act. To the contrary, the 
proposal is designed to enhance the Exchange's competitiveness by 
providing additional flexibility over the levels at which orders may be 
grouped for STP purposes, thereby incentivizing ETP Holders to send 
orders to the Exchange and increase the liquidity available on the 
Exchange. The Exchange also notes that the proposed new STP grouping 
options, like the Exchange's current anti-internalization 
functionality, are completely optional and ETP Holders can determine 
whether to apply anti-internalization protections to orders submitted 
to the Exchange, and if so, at what level to apply those protections 
(e.g., MPID, subidentifier, Client ID, or Affiliate level). The 
proposed rule change would also improve the Exchange's ability to 
compete with other exchanges that recently amended their rules to 
expand the groupings for their own anti-internalization functionality. 
There is no barrier to other national securities exchanges adopting 
similar anti-internalization groupings as those proposed herein.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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 after the date of the filing, or such 
shorter time as the Commission may designate if consistent with the 
protection of investors and the public interest, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act \11\ and Rule 19b-
4(f)(6) \12\ thereunder.
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    \11\ 15 U.S.C. 78s(b)(3)(A).
    \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, along 
with a brief description and text of 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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    A proposed rule change filed under Rule 19b-4(f)(6) \13\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\14\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has asked 
the Commission to waive the 30-day operative delay so that the proposed 
rule change may become operative upon filing. The Exchange requested 
the waiver because it would enable the Exchange to compete with other 
exchanges that have recently amended their rules to expand the levels 
at which orders may be grouped for STP purposes. The Exchange states 
that at least one such competitor exchange plans to introduce similar 
capabilities to market participants as early as January 9, 2023. The 
Exchange also states that it is currently working on technological 
solutions to meet this competition and to make similar offerings 
available to market participants as soon as possible. The Exchange 
expects to begin rolling out this functionality in less than 30 days 
from the date of filing, and thus requests waiver of the operative 
delay in order to promptly meet market competition. For these reasons, 
and because the proposed rule change does not raise any novel 
regulatory issues, the Commission believes that waiving the 30-day 
operative delay is consistent with the protection of investors and the 
public interest. Therefore, the Commission hereby waives the operative 
delay and designates the proposal operative upon filing.\15\
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    \13\ 17 CFR 240.19b-4(f)(6).
    \14\ 17 CFR 240.19b-4(f)(6)(iii).
    \15\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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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.

[[Page 4865]]

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-NYSEARCA-2023-07 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-NYSEARCA-2023-07. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEARCA-2023-07 and should be submitted 
on or before February 15, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-01401 Filed 1-24-23; 8:45 am]
BILLING CODE 8011-01-P


