Notice2022-02077
Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Enable Exchange Members To Enter Midpoint Extended Life Orders and M-ELO Plus Continuous Book Orders With an Immediate-or-Cancel Time-in-Force Instruction
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 2, 2022
Issuing agencies
Securities and Exchange Commission
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 22 (Wednesday, February 2, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Notices]
[Pages 5926-5929]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02077]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-94076; File No. SR-NASDAQ-2022-006]
Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing of Proposed Rule Change To Enable Exchange Members To
Enter Midpoint Extended Life Orders and M-ELO Plus Continuous Book
Orders With an Immediate-or-Cancel Time-in-Force Instruction
January 27, 2022.
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 January 19, 2022, The Nasdaq Stock Market LLC (``Nasdaq'' or
``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.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to enable Exchange members to enter Midpoint
Extended Life Orders (``M-ELOs'') and M-ELO Plus Continuous Book (``M-
ELO+CB'') Orders with an immediate-or-cancel (``IOC'') Time-in-Force
(``TIF'') instruction.\3\
---------------------------------------------------------------------------
\3\ Citations herein to the Nasdaq Rule 4000 Series shall refer
to Equity 4.
---------------------------------------------------------------------------
The text of the proposed rule change is available on the Exchange's
website at <a href="https://listingcenter.nasdaq.com/rulebook/nasdaq/rules">https://listingcenter.nasdaq.com/rulebook/nasdaq/rules</a>, at
the principal
[[Page 5927]]
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 Exchange proposes to amend Rule 4702(b)(14) and (by
implication) 4702(b)(15) to enable Exchange members to enter M-ELO and
M-ELO+CB Orders with an IOC time-in-force instruction.
On March 7, 2018, the Commission issued an order approving the
Exchange's proposal to adopt the M-ELO as a new Order Type.\4\ A M-ELO
is a non-displayed order that is available to all members but interacts
only with other M-ELOs and M-ELO+CBs. It is priced at the midpoint
between the National Best Bid and Offer (``NBBO'') and it does not
become eligible for execution until at least 10 milliseconds elapse
after its entry (the ``Holding Period'').\5\ Once the Holding Period
elapses, a M-ELO becomes eligible for execution against other M-ELOs
and M-ELO+CBs on a time-priority basis.\6\
---------------------------------------------------------------------------
\4\ See Securities Exchange Act Release No. 34-82825 (Mar. 7,
2018), 83 FR 10937 (Mar. 13, 2018) (order approving SR-NASDAQ-2017-
074).
\5\ In 2020, the Commission issued an order approving the
Exchange's proposal to shorten the Holding Period for M-ELO and M-
ELO+CB Orders from one half second to 10 milliseconds. See
Securities Exchange Act Release No. 34-88743 (April 24, 2020), 85 FR
24068 (April 30, 2020) (order approving SR-NASDAQ-2020-011). If a
member modifies a MELO or M-ELO+CB during the Holding Period, other
than to decrease the size of the order or to modify the marking of a
sell order as long, short, or short exempt, then such modification
will cause the Holding Period to reset.
\6\ If a member modifies a M-ELO or M-ELO+CB after the Holding
Period elapses, other than to decrease the size of the order or to
modify the marking of a sell order as long, short, or short exempt,
then such modification will trigger a new Holding Period for the
order.
---------------------------------------------------------------------------
A M-ELO+CB is an Order Type that has all the characteristics and
attributes of a M-ELO Order, except that a M-ELO+CB that satisfies the
Holding Period is eligible to execute (at the midpoint of the NBBO)
against other eligible M-ELO+CBs, eligible M-ELOs, and also eligible
non-displayed Orders with Midpoint Pegging and Midpoint Peg Post-Only
Orders (``Midpoint Orders'') resting on the Exchange's Continuous
Book.\7\
---------------------------------------------------------------------------
\7\ A M-ELO+CB is eligible to execute against a Midpoint Order
if: (i) The Midpoint Order has the Midpoint Trade Now Attribute
enabled; (ii) no other order is resting on the Continuous Book that
has a more aggressive price than the current midpoint of the NBBO;
(iii) the Midpoint Order has rested on the Exchange's Continuous
Book for a minimum of 10 milliseconds after the NBBO midpoint falls
within the limit set by the participant; and (iv) the Midpoint Order
satisfies any minimum quantity requirement of the M-ELO+CB. A buy
(sell) M-ELO+CB is ranked in time order at the midpoint among other
buy (sell) M-ELO+CBs, buy (sell) Midpoint Extended Life Orders, and
buy (sell) Midpoint Orders, as of the time when such Orders become
eligible to execute. See Rule 4702(a)(15); see also Securities
Exchange Act Release No. 34-86938 (September 11, 2019), 84 FR 48978
(September 17, 2019) (order approving SR-NASDAQ-2019-048).
---------------------------------------------------------------------------
Presently, neither M-ELO nor M-ELO+CB Orders may be entered with a
TIF of IOC. An Order with a TIF of IOC is one that is designated to
deactivate immediately after determining whether the Order is
marketable.\8\ In the Exchange's proposal to establish the M-ELO Order
Type, the Exchange explained that it decided to exclude IOCs from M-
ELOs since it deemed the IOC TIF, by its nature, to be ``inconsistent
with the Holding Period requirement of the proposal.'' \9\ That is, the
Exchange designed M-ELO to provide a space where investors with longer
time horizons, including institutional investors, can interact
exclusively with each other--by virtue of a mutually-applicable Holding
Period--without fear that aggressive order types could trade with M-
ELOs or M-ELO+CBs to the detriment of such M-ELOs and M-ELO+CBs
immediately upon entry and without waiting 10 milliseconds before doing
so, such as immediately before a change in the NBBO for a particular
security (i.e., risk of adverse selection). Nevertheless, institutional
investors--which again are the primary beneficiaries and users of M-ELO
and M-ELO+CB--have approached the Exchange recently to request the
ability to enter IOC instructions for their M-ELO and M-ELO+CB Orders
as a means of assisting them in sourcing liquidity on the Exchange's M-
ELO/M-ELO+CB Book so that they can minimize the opportunity costs of
utilizing M-ELO and M-ELO+CB Orders and thus render use of M-ELO and M-
ELO+CB more efficient and productive for participants.
---------------------------------------------------------------------------
\8\ Rule 4703(a)(1).
\9\ See Securities Exchange Act Release No. 34-81311 (August 3,
2017), 82 FR 37248 (August 9, 2017) (SR-NASDAQ-2017-074).
---------------------------------------------------------------------------
That is, the functionality would provide users with an indication
as to whether eligible contra-side liquidity would be available to
their M-ELO or M-ELO+CB Orders and allow these users to streamline
their decision-making process of whether to send additional M-ELO or M-
ELO+CB Orders to the Exchange or to seek liquidity elsewhere.\10\ It
would also enable participants whose M-ELO or M-ELO+CB Orders do not
satisfy the conditions for a Holding Period to commence upon Order
entry to have those Orders cancel immediately rather than be held by
the System until such time as the conditions are met, which would allow
these participants to assess whether they wish to submit new M-ELO or
M-ELO+CB Orders that would satisfy the conditions to commence a Holding
Period upon entry.
---------------------------------------------------------------------------
\10\ The Exchange understands that some participants
representing institutional investor orders have developed methods
that mimic the functions of IOC.
---------------------------------------------------------------------------
To avoid introducing the risks of adverse selection associated with
enabling IOC in these contexts (discussed above), brokers representing
institutional investors requested that when they enter M-ELO and M-
ELO+CB Orders (which are eligible to commence a Holding Period upon
entry) with an IOC instruction, the IOC instruction should activate
only at the expiration of the 10 millisecond Holding Period, rather
than immediately upon Order entry. In other words, only after the 10
millisecond Holding Period elapses would the System check to see if a
M-ELO or M-ELO+CB Order with an IOC TIF is able to execute immediately
against contra-side resting liquidity; if so, the Order will execute as
it would currently, but if not, the System will automatically cancel
the Order rather than keep it on the Book. If the Order at the time of
entry is unable to begin the Holding Period (because, for example, it
is entered with a limit price that is not at or better than the
midpoint of the NBBO, if there is no NBB or NBO at the time of entry,
or the NBBO is crossed at the time of entry), then the Order will be
automatically cancelled immediately.
The Exchange agrees with the participants that requested this IOC
functionality that when modified in this manner, its use with M-ELO and
M-ELO+CB would serve a beneficial purpose that is not inconsistent with
the Exchange's intentions and designs for these Order Types. That is,
it would
[[Page 5928]]
permit IOC users to check the M-ELO or M-ELO+CB Book for contra-side
liquidity, but not in an aggressive or riskless fashion.\11\ Users of
the IOC functionality in this context would still need to endure the
Holding Period before utilizing it, and then execute against contra-
side interest if it is available upon expiration of that Holding
Period. While the proposal would provide for immediate cancellation of
M-ELO and M-ELO+CB Orders that do not meet the conditions for a Holding
Period to commence upon entry, the cancellation of these M-ELOs and M-
ELO+CBs would only indicate that such Orders are not eligible to enter
the Holding Period (i.e., the NBBO is crossed at the time of entry,
there is no NBB or NBO at the time of entry, or the Order is entered
with a limit price that is not at or better than the NBBO midpoint) and
would not indicate whether there are available contra-side M-ELOs or M-
ELO+CBs at the time of entry on Nasdaq. The Exchange also notes that,
in other contexts, the use of IOCs is routine and recognized as a
prudent way to seek liquidity in a fragmented market, and its use in
this context, as modified, should not be controversial.
---------------------------------------------------------------------------
\11\ Nasdaq reiterates that by design, spread-crossing orders do
not interact with MELO or M-ELO+CB Orders.
---------------------------------------------------------------------------
Accordingly, the Exchange now proposes to amend Rule 4702(b)(14)
(and implicitly, Rule 4702(b)(15)), because it would incorporate
amendments to Rule 4702(b)(14)) to permit members to enter M-ELO and M-
ELO+CB Orders with a TIF instruction of IOC, with the caveat that, when
used for these Order Types, the IOC instruction will activate upon the
expiration of the Holding Period, unless the Order is unable to begin
the Holding Period upon entry, in which case it will cancel
immediately.
As part of the surveillance the Exchange currently performs, M-ELOs
and M-ELO+CBs with IOC would be subject to real-time surveillance to
determine if they are being abused by market participants. In addition,
as is the case for ordinary M-ELOs and M-ELO+CBs, the Exchange will
monitor the use of M-ELOs and M-ELO+CBs with IOC with the intent to
apply additional measures, as necessary, to ensure their usage is
appropriately tied to the intent of the Order Types. The Exchange is
committed to determining whether there is opportunity or prevalence of
behavior that is inconsistent with normal risk management behavior,
such as excessive cancellations. Manipulative abuse is subject to
potential disciplinary action under the Exchange's Rules, and other
behavior that is not necessarily manipulative but nonetheless
frustrates the purposes of the M-ELO or M-ELO+CB Order Types may be
subject to penalties or other participant requirements to discourage
such behavior, should it occur.
2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\12\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\13\ 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.
---------------------------------------------------------------------------
\12\ 15 U.S.C. 78f(b).
\13\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The proposal will assist market participants in sourcing liquidity
on the Exchange's M-ELO/M-ELO+CB Book so that they can minimize the
opportunity costs associated with utilizing M-ELO and M-ELO+CB Orders
and thus render use of M-ELO and M-ELO+CB more efficient and
productive. At the same time, the proposal avoids exposing M-ELO and M-
ELO+CB orders to the risks of adverse selection associated with
aggressive IOC by proposing that, when used in the contexts of M-ELO
and M-ELO+CB Orders, the IOC instruction will activate only at the
expiration of the 10 millisecond Holding Period, rather than
immediately upon Order entry, as orders with a TIF of IOC do in other
contexts. The exception to this is if the M-ELO or M-ELO+CB Order with
an IOC instruction is unable to begin the Holding Period upon entry, as
will occur if the Market is crossed at the time of entry, there is no
NBB or NBO at the time of entry, or the Order is entered with a limit
price that is not at or better than the NBBO midpoint. In such cases,
the Order will be cancelled immediately upon entry. Doing so is
consistent with the spirit of the IOC instruction, in that the market
participant is indicating a desire for their Order to persist for the
minimum period possible, while a M-ELO or M-ELO+CB Order that is
ineligible to begin the Holding Period upon entry could potentially
persist in a held state until it is cancelled by the System at the end
of Market Hours. Crucially, the immediate cancel of an Order that is
ineligible to begin the Holding Period upon entry does not provide
information to the participant about the underlying state of the M-ELO/
M-ELO+CB Book.\14\ When used in this context, IOC will not be useful to
participants engaging in strategies that are time sensitive. Thus, this
proposal will not frustrate the underlying design of M-ELO and M-ELO+CB
Orders, which again is to provide investors, including institutional
investors, with longer time horizons to safely interact with each other
without interacting with aggressive or time sensitive orders.
---------------------------------------------------------------------------
\14\ The existence of resting interest on the M-ELO/M-ELO+CB
Book is not a prerequisite for the Order to enter the Holding
Period. Therefore, the cancellation of these M-ELOs and M-ELO+CBs
only indicate that such Orders are not eligible to enter the Holding
Period (i.e., the NBBO is crossed at the time of entry, there is no
NBB or NBO at the time of entry, or the Order is entered with a
limit price that is not at or better than the NBBO midpoint) and
does not indicate whether there are available contra-side M-ELOs or
M-ELO+CBs at the time of entry on Nasdaq. Consequently, the IOC
instruction cannot be exploited to check the Book for liquidity in a
riskless fashion (e.g., by cancelling before the Holding Period
expires).
---------------------------------------------------------------------------
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. To the contrary, the proposal
will enhance the utility and efficiency of the M-ELO and M-ELO+CB Order
Types, which in turn will render the Exchange a more attractive venue
for market participants that stand to benefit from these Order Types.
The proposed IOC instruction will not burden intra-market competition
as it will be available for use by all market participants.
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
Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule
change should be disapproved.
[[Page 5929]]
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
<bullet> Use the Commission's internet comment form (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#6311160f064e000c0e0e060d1710231006004d040c15"><span class="__cf_email__" data-cfemail="c7b5b2aba2eaa4a8aaaaa2a9b3b487b4a2a4e9a0a8b1">[email protected]</span></a>. Please include
File Number SR-NASDAQ-2022-006 on the subject line.
Paper Comments
<bullet> Send paper comments in triplicate to: Secretary,
Securities and Exchange Commission, 100 F Street NE, Washington, DC
20549-1090.
All submissions should refer to File Number SR-NASDAQ-2022-006. 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 (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change. Persons submitting
comments are cautioned that we do not redact or edit personal
identifying information from comment submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-NASDAQ-2022-006 and should
be submitted on or before February 23, 2022.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
---------------------------------------------------------------------------
\15\ 17 CFR 200.30-3(a)(12).
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-02077 Filed 2-1-22; 8:45 am]
BILLING CODE 8011-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on February 2, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.