Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change Relating to Alternative Display Facility New Entrant, 79401-79405 [2022-28085]

Download as PDF Federal Register / Vol. 87, No. 247 / Tuesday, December 27, 2022 / Notices SECURITIES AND EXCHANGE COMMISSION [Release No. 34–96550; File No. SR–FINRA– 2022–032] Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change Relating to Alternative Display Facility New Entrant December 20, 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 December 16, 2022, the Financial Industry Regulatory Authority, Inc. (‘‘FINRA’’) 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 FINRA. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change FINRA is proposing to add IntelligentCross ATS (‘‘IntelligentCross’’) as a new entrant to the Alternative Display Facility (‘‘ADF’’). IntelligentCross has prepared a summary of its policies and procedures regarding access to quotations in an NMS stock displayed on the ADF, and a summary of its proposed fees for such access. A copy of that summary is available on FINRA’s website at https:// www.finra.org. The proposed rule change does not make any changes to the text of FINRA rules. TKELLEY on DSK125TN23PROD with NOTICES II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. 1 15 2 17 U.S.C. 78s(b)(1). CFR 240.19b–4. VerDate Sep<11>2014 22:43 Dec 23, 2022 Jkt 259001 A. Self-Regulatory Organization’s Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change 1. Purpose FINRA is proposing to add a new entrant—IntelligentCross—to the ADF. The ADF is a quotation collection and trade reporting facility that provides ADF market participants (i.e., ADFregistered market makers or electronic communications networks) 3 the ability to post quotations, display orders and report transactions in NMS stocks 4 for submission to the securities information processors (‘‘SIP’’) for consolidation and dissemination to vendors and other market participants. In addition, the ADF delivers real-time data to FINRA for regulatory purposes, including enforcement of requirements imposed by SEC Regulation NMS. The ADF was initially approved by the Commission on July 24, 2002, in connection with Nasdaq’s registration as a national securities exchange.5 At that time, the ADF was approved for Nasdaqlisted securities for a nine-month pilot period to provide FINRA members with an alternative to the Nasdaq systems for reporting quotations and transactions in Nasdaq UTP Plan securities. In 2005, the Commission adopted Regulation NMS, which included an order protection rule 6 that established trade-through protection for all NMS stocks.7 Since the ADF is a display-only facility, a market participant would have to access the actual ADF participant that posted the protected quotation on the ADF in order to comply with the Order Protection Rule.8 In the NMS Adopting Release, the Commission noted that market participants could potentially access an ADF participant either through direct access or through a private network.9 Given that market participants could be required to access multiple ADF participants to comply with the Order 3 See FINRA Rule 6220(a)(3). 17 CFR 242.600. 5 See Securities Exchange Act Release No. 46249 (July 24, 2002), 67 FR 49822 (July 31, 2002) (Order Approving File No. SR–NASD–2002–97); see also Notice to Members 02–45 (August 2002). 6 Rule 611 of Regulation NMS (the ‘‘Order Protection Rule’’) provides that a trading center ‘‘shall establish, maintain, and enforce written policies and procedures that are reasonably designed to prevent trade-throughs on that trading center of protected quotations in NMS stocks’’ that do not fall within one of the exceptions set forth in the rule. See 17 CFR 242.611. 7 See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496, 37501 (June 29, 2005) (‘‘NMS Adopting Release’’). 8 See NMS Adopting Release, supra note 7 at 37541. 9 See NMS Adopting Release, supra note 7 at 37543. 4 See PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 79401 Protection Rule, the Commission formulated Rule 610 under SEC Regulation NMS to ensure that market participants would be afforded ‘‘fair and efficient access’’ to such trading centers.10 Accordingly, Rule 610 requires that a trading center displaying quotations in an NMS stock through an SRO display-only facility (such as the ADF) ‘‘provide a level and cost of access to such quotations that is substantially equivalent to the level and cost of access to quotations displayed by SRO trading facilities in that stock.’’ 11 Rule 610 also requires that a trading center displaying quotations in an NMS stock through an SRO display-only facility not impose unfairly discriminatory terms that prevent or inhibit any person from obtaining efficient access to such quotations through a member, subscriber, or customer of the trading center.12 In articulating this standard, the Commission noted that the level and cost of access would ‘‘encompass both (1) the policies, procedures, and standards that govern access to quotations of the trading center, and (2) the connectivity through which market participants can obtain access and the cost of such connectivity.’’ 13 The nature and cost of connections for market participants seeking to access an ADF participant’s quotations would need to be substantially equivalent to the nature and cost of connections to SRO trading facilities.14 In evaluating whether ADF participants are meeting the access standards under Rule 610 of Regulation NMS, i.e., that the cost of accessing an ADF participant is substantially equivalent to the cost of accessing an SRO trading facility, the Commission stated that the NASD (now FINRA) would act as a gatekeeper in this process. As such, FINRA would be required to submit a proposed rule change pursuant to 19(b) of the Act to add a new ADF participant.15 There has not been an active quoting participant on the ADF since the first quarter of 2015. Consistent with the requirements of Rule 610 of Regulation NMS and the NMS Adopting Release, FINRA is submitting this proposed rule change so 10 See NMS Adopting Release, supra note 7 at 37549. 11 17 CFR 242.610(b)(1). 12 17 CFR 242.610(b)(2). 13 See NMS Adopting Release, supra note 7 at 37549. 14 See NMS Adopting Release, supra note 7 at 37549. 15 See NMS Adopting Release, supra note 7 at 37549. E:\FR\FM\27DEN1.SGM 27DEN1 79402 Federal Register / Vol. 87, No. 247 / Tuesday, December 27, 2022 / Notices that IntelligentCross may become an ADF market participant. Overview of IntelligentCross TKELLEY on DSK125TN23PROD with NOTICES IntelligentCross is an NMS stock ATS operating pursuant to an effective Form ATS–N and is required to comply with the conditions of the Regulation ATS exemption.16 IntelligentCross ASPEN operates three separate limit order books with optional display capability distinguished by different fee structures—the ASPEN fee/fee limit order book, ASPEN maker/taker limit order book, and ASPEN taker/maker limit order book.17 All three ASPEN order books act independently of each other; therefore, orders resting in one book do not rest on or interact with orders resting in another book.18 The ASPEN Fee/Fee limit order book would be the only order book displaying orders on the ADF. All activity on IntelligentCross is identified and reported under the ‘‘INCR’’ market participant identifier (or ‘‘MPID’’).19 As set forth in IntelligentCross’ summary, IntelligentCross only permits registered broker-dealers to be subscribers to IntelligentCross, and subscribers can interact with ASPEN Fee/Fee using conventional order types. Specifically, ASPEN Fee/Fee accepts limit orders with optional display instructions, immediate or cancel orders, and pegged orders (which are treated as regular orders with an automated repricing to the national best 16 See Form ATS–N Filings and Information page on the Securities and Exchange Commission’s website, at https://www.sec.gov/divisions/ marketreg/form-ats-n-filings.htm. 17 For purposes of this filing, ‘‘IntelligentCross ASPEN’’ refers collectively to the three ASPEN limit order books. ‘‘ASPEN Fee/Fee’’ refers to the ASPEN fee/fee limit order book with optional display capability that would display orders on the ADF. In addition to IntelligentCross ASPEN, IntelligentCross also operates a midpoint book that only accepts non-displayed midpoint orders, which is distinct from and does not interact with any of the three ASPEN limit order books. 18 ASPEN Fee/Fee publishes displayed prices in over 6,900 securities. As set forth in IntelligentCross’ summary, any orders entered into IntelligentCross will default to the ASPEN Fee/Fee book (aside from midpoint peg orders, which will default to the midpoint book). A subscriber who wishes to trade in the ASPEN maker/taker or taker/ maker books must affirmatively identify those books when entering their order. 19 IntelligentCross recognizes that, should trading reach the applicable thresholds under Rule 301(b)(3) or Rule 301(b)(5) of Regulation ATS, IntelligentCross would be required to comply with the applicable requirements of Regulation ATS. See, e.g., 17 CFR 242.301(b)(3) and (b)(5). In addition, IntelligentCross acknowledges that other regulatory obligations may become applicable in the future depending upon changes to the platform or its volume (e.g., obligations under Regulation Systems Compliance and Integrity). See 17 CFR 242.1000 through 242.1007. VerDate Sep<11>2014 22:43 Dec 23, 2022 Jkt 259001 bid or offer (‘‘NBBO’’)).20 Only ASPEN Fee/Fee will accept incoming intermarket sweep orders (‘‘ISOs’’) 21 once it displays orders on the ADF.22 IntelligentCross has represented that ASPEN Fee/Fee utilizes a matching process that it has engineered to seek to maximize price discovery and provide an opportunity for investors to improve performance and achieve best execution. As set forth in its summary, ASPEN Fee/Fee establishes a matching schedule using an overnight optimization process that uses historical performance measurements from prior days’ matches across all three IntelligentCross ASPEN books. Match schedules are defined by minimum/ maximum time bands for each security, and these bands can have a minimum time of 150 microseconds and a maximum time of 900 microseconds (i.e., the maximum time for scheduling a match event is capped at 900 microseconds). For example, on a particular day, the match event band for XYZ stock may have a minimum time of 450 microseconds and a maximum time of 600 microseconds. The time of the actual match event is randomized within the match event band throughout the course of the trading day. Any order for a security that arrives prior to a match event (and that has not been cancelled, become unmarketable, or repriced) 23 will be eligible to participate in the next match event for that security.24 ASPEN Fee/Fee’s matching process operates on a nearcontinuous basis throughout the day.25 20 As set forth in IntelligentCross’ summary, only limit orders and primary peg orders (with or without a limit price) are eligible to be displayed on the ASPEN Fee/Fee book, and therefore on the ADF. 21 17 CFR 242.600(b)(38). 22 As set forth in its summary, IntelligentCross has represented that ASPEN Fee/Fee will be the only ASPEN order book that will accept ISOs. 23 As set forth in its summary, IntelligentCross has represented that situations may occur where an incoming order on ASPEN Fee/Fee may not execute against a resting order at match event time such as where: an existing resting order cancels prior to the next match event; an incoming order is canceled prior to the next match event; the NBBO moves between the time an order is received and the next match event takes place, making either the incoming order or the resting order non-marketable; or the NBBO changed before the next match event and pegged orders were repriced to the new NBBO, making the incoming order or the resting pegged order non-marketable. 24 Both sides of the trade (buyers and sellers) are on equal footing for the next scheduled match event, while maintaining full control of their orders, i.e., both sides can cancel or update their orders at any time prior to the match. The ASPEN Fee/Fee book will automatically update its quotations, and all quotation updates, including those due to new or cancelled orders, are immediate. 25 A list of illustrative use cases of IntelligentCross’ matching process is included in PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 Match events are scheduled continuously while ASPEN Fee/Fee’s order book is in a ‘‘matchable state’’ (i.e., there is an order on each side eligible to match).26 For each match event time, ASPEN Fee/Fee retrieves the NBBO and processes all the orders that have arrived and have not been cancelled in price-time priority (and, at each price level, displayed orders will have priority over non-displayed orders).27 No subscriber (or non-subscriber accessing IntelligentCross through a subscriber) is given any priority through the matching process and the matching process is blind to the identity of the subscriber. Any matches are immediately reported to subscribers and the SIPs via a FINRA trade reporting facility and disseminated on IntelligentCross’ market data feed.28 ASPEN Fee/Fee automatically updates its quotations, and all quotation updates, including those due to new or cancelled orders, are immediate. As set forth in its summary, IntelligentCross will maintain policies and procedures designed for ASPEN Fee/Fee to maintain a linkage with the ADF and to transmit to the ADF for display the best priced orders entered by subscribers. As stated in its summary, IntelligentCross believes that including ASPEN Fee/ Fee’s displayed liquidity as a protected quote on the ADF will provide market participants an opportunity to improve performance and achieve best execution for their customers. Regulation NMS Requirements for Protected Quotations Rule 611 of Regulation NMS provides for price protection across markets against trade-throughs for ‘‘automated quotations’’ in NMS stocks.29 Under Regulation NMS, an ‘‘automated the IntelligentCross Form ATS–N. See supra note 16. 26 If there are no orders for a stock in the book, no match event will be scheduled. An incoming order that will make the book potentially matchable will trigger a scheduling of a match event if one has not already been scheduled. 27 IntelligentCross uses a combination of SIP and proprietary direct feeds from national securities exchanges to determine the NBBO and protected quotes (e.g., for trade through purposes), and to price executions. 28 IntelligentCross has represented that displayed orders from all three ASPEN order books are available in the IQX market data feed. Each of the ASPEN books have individualized data feeds; as such, subscribers to the IQX market data feed can choose to consume data from whichever ASPEN books they choose through separate feed identifiers. IntelligentCross has represented that the ASPEN Fee/Fee book will provide any quotes or quote updates to the ADF no later than what is disseminated via the IQX market data feed. 29 17 CFR 242.600(b)(6). See also 17 CFR 242.600(b)(70) and (71). E:\FR\FM\27DEN1.SGM 27DEN1 Federal Register / Vol. 87, No. 247 / Tuesday, December 27, 2022 / Notices TKELLEY on DSK125TN23PROD with NOTICES quotation’’ is one that, among other things, can be executed ‘‘immediately and automatically’’ against an incoming IOC order.30 As stated above, IntelligentCross has represented that ASPEN Fee/Fee’s matching engine operates near-continuously and that, when a new order arrives in the ASPEN Fee/Fee book, it will participate in the next scheduled match event by interacting with existing orders in the order book within a maximum time capped at 900 microseconds. FINRA believes that quotations displayed on ASPEN Fee/Fee would meet the definition of an ‘‘automated quotation’’ under Regulation NMS. FINRA notes that, in 2016, the Commission interpreted Regulation NMS’s immediacy requirement to allow for ‘‘an intentional access delay that is de minimis—i.e., a delay so short as to not frustrate the purposes of Rule 611 by impairing fair and efficient access to an exchange’s quotations.’’ 31 The Commission stated that ‘‘[i]n the context of Regulation NMS, the term ‘immediate’ does not preclude all intentional delays regardless of their duration, and such preclusion is not necessary to achieve the objectives of Rule 611. As long as any intentional delay is de minimis—i.e., does not impair fair and efficient access to an exchange’s protected quotations—it is consistent with both the text and purpose of Rule 611.’’ 32 SEC staff has further stated that ‘‘consistent with the Commission’s interpretation regarding automated quotation under Rule 600(b)(3) of Regulation NMS, delays of less than a millisecond are at a de minimis level that would not impair fair and efficient access to a quotation, consistent with the goals of Rule 611.’’ 33 FINRA notes that ASPEN Fee/Fee’s matching process includes match events that occur at pre-defined increments within 150 microseconds to 900 microseconds of order arrival, which is less than one millisecond. FINRA believes that this de minimis delay provides for an ‘‘immediate’’ execution of incoming orders while ASPEN Fee/ Fee’s order book is in a matchable state. In addition, FINRA believes that ASPEN Fee/Fee’s matching process executes orders automatically because, as set 30 17 CFR 242.600(b)(6). Interpretation Regarding Automated Quotations Under Regulation NMS, Securities Exchange Act Release No. 78102 (June 17, 2016), 81 FR 40785, 40792 (June 23, 2016). 32 See supra note 31. 33 See Staff Guidance on Automated Quotations under Regulation NMS available at https:// www.sec.gov/divisions/marketreg/automatedquotations-under-regulation-nms.htm. 31 Commission VerDate Sep<11>2014 22:43 Dec 23, 2022 Jkt 259001 forth in its summary, IntelligentCross represented that the quotations displayed on ASPEN Fee/Fee are handled on an automated basis and that there is no human discretion in determining any action taken with respect to an order after the order is received.34 As discussed in IntelligentCross’ summary and above,35 situations may occur where an incoming order may not execute against a resting order at match event time, such as when an existing resting order cancels prior to the next match event; an incoming order is canceled prior to the next match event; the NBBO moves between the time an order is received and the next match event takes place, making either the incoming order or the resting order nonmarketable; or the NBBO changed before the next match event and pegged orders were repriced to the new NBBO, making the incoming order or the resting pegged order non-marketable. For example, assume the NBBO in XYZ stock is $10.00 × $10.01 at 9:30:00.000000 and ASPEN Fee/Fee is displaying a limit order to buy at $10.00. At 9:30:00.000010, ASPEN Fee/ Fee receives an order to sell at $10.00. At 9:30:00.000020, the displayed limit order to buy is cancelled. At 9:30:00.000040—the time of the next scheduled match event in XYZ stock— no match event occurs as there are no two matchable orders at that time. The same result would occur in this example if a subscriber sent a sell order that would have interacted with the buy limit order but then cancels their sell order at any time prior to the next scheduled match event. As another example, assume the NBBO in XYZ stock is $10.00 × $10.01 at 9:30:00.000000 and ASPEN Fee/Fee is displaying a limit order to buy at $10.00. At 9:30:00.000010, ASPEN Fee/ Fee receives a sell order to sell at $10.00. At 9:30:00.000040—the time of the next scheduled match event in XYZ stock—the NBBO has changed and is now 10.01 × 10.02. A match will not occur because ASPEN Fee/Fee will not execute a match outside of the NBBO (i.e., the resting order is now nonmarketable) except that, as set forth in IntelligentCross’ summary, if the sell order were an ISO, an execution would 34 The Commission has stated that, for a quotation ‘‘[t]o qualify as ‘automatic,’ no human discretion in determining any action taken with respect to an order may be exercised after the time an order is received,’’ and ‘‘a quotation will not qualify as ‘automated’ if any human intervention after the time an order is received is allowed to determine the action taken with respect to the quotation.’’ See Regulation NMS Adopting Release, supra note 7 at 37519 and 37534. 35 See supra note 23. PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 79403 occur at $10.00 at the scheduled match event time. Finally, assume that the NBBO in XYZ stock is $10.00 × $10.01 at 9:30:00.000000 and ASPEN Fee/Fee is displaying a primary peg buy order with a limit of $10.00. At 9:30:00.000010, ASPEN Fee/Fee receives a sell order to sell at $10.00. At 9:30:00.000040, the time of the next scheduled match event in XYZ stock, the NBBO is now $9.99 × $10.01. A match will not occur because the pegged order follows the NBBO and gets repriced to the current NBBO of $9.99. If the NBBO had moved to $10.01 × $10.02, ASPEN Fee/Fee’s primary peg would not reprice as it is limited to $10.00, and a match also would not occur. IntelligentCross has represented that non-match events on ASPEN Fee/Fee occur in a minority of cases. Year-todate (through the end of November 2022), IntelligentCross represented that 4.2 percent of potential matches on ASPEN Fee/Fee did not complete because a displayed order was canceled, and 4.7 percent of potential matches on ASPEN Fee/Fee did not complete because the NBBO changed and at least one of the sides became non-marketable. In such cases, IntelligentCross represented that subscribers exercised their right to change their orders or, in the case of pegged orders, instructed that their orders be changed in reaction to NBBO changes. Level of Cost and Access to ASPEN Fee/ Fee Quotations Regulation NMS Rule 610(b) requires that any trading center that displays quotations in an NMS stock through an SRO display-only facility must provide a level and cost of access to such quotations that is substantially equivalent to the level and cost of access to quotations displayed by SRO trading facilities in that stock.36 Regulation NMS Rule 610(b) further requires that any trading center that displays quotations in an NMS stock through an SRO display-only facility shall not impose unfairly discriminatory terms that prevent or inhibit any person from obtaining efficient access to such quotations through a member, subscriber, or customer of the trading center. The cost of accessing the quotation of a trading center may consist of several distinct costs, such as port fees, market data fees, general connectivity fees, and transaction fees. As set forth in its summary, IntelligentCross represented that it believes the level and cost of access to its quotations complies with Rule 610 of 36 17 E:\FR\FM\27DEN1.SGM CFR 242.610(b). 27DEN1 79404 Federal Register / Vol. 87, No. 247 / Tuesday, December 27, 2022 / Notices TKELLEY on DSK125TN23PROD with NOTICES Regulation NMS and will be substantially equivalent to the cost of access to quotations displayed by SRO trading facilities in that stock and the costs to connect to any other trading center, such as an exchange. IntelligentCross also represented that it utilizes a matching process that provides fair and efficient access to its quotations.37 Specifically, as described in its summary, IntelligentCross utilizes a fee/ fee pricing model for activity on ASPEN Fee/Fee where both sides are charged the same fee for transactions.38 The base rate charged by IntelligentCross is $0.0008 per share for each side of a transaction on ASPEN Fee/Fee.39 IntelligentCross’ fee schedule for subscribers is published in the IntelligentCross Form ATS–N and pricing is subject to change with advance notice provided to subscribers. Eligible displayed orders are published via a free market data feed (‘‘IQX market data feed’’).40 In comparison, market data fees vary by exchange, with some exchanges charging fees that range from under $500 per month to $2500, and some exchanges charging $4000 for external distribution.41 37 With respect to the requirement that the nature and cost for market participants seeking to access an ADF Trading Center be substantially equivalent to the nature and cost of connection to SRO trading facilities, FINRA notes that the Commission stated in the NMS Adopting Release that this requirement does not apply on an absolute basis, but rather applies on a per-transaction basis to reflect the costs relative to the ADF participant’s trading volume. See NMS Adopting Release, supra note 7 at 37549 n.449. Based on IntelligentCross’ representations, FINRA believes that IntelligentCross’ proposed level and cost of access to quotations on ASPEN Fee/Fee is substantially equivalent to the level and cost of access to quotations displayed by an SRO trading facility, both in absolute and relative terms. 38 IntelligentCross has represented that ASPEN Fee/Fee subscribers can pay lower fees through (1) a ‘‘Total Composite Volume Incentive’’ based on the total market volume in all NMS Stocks reported to the consolidated tape and (2) an ‘‘Active Order Incentive’’ which is based on a per symbol basis and the percent that is marketable. The ASPEN Fee/ Fee and midpoint order books will follow the same fee schedule, and shares traded will aggregate for volume pricing tiers. The ASPEN maker/taker and ASPEN taker/maker orders books are charged independently. 39 In comparison, Cboe BZX Exchange, Inc. assesses a $0.0030 charge per share for orders in securities priced $1 or above that remove liquidity. Investors Exchange LLC (‘‘IEX’’) assesses a fee of $0.0006 for removing displayed liquidity for orders in securities that are priced at or above $1, and MEMX LLC (‘‘MEMX’’) assesses a fee that ranges from $0.0029 to $0.0030 for removing displayed liquidity above $1. 40 See supra note 28. 41 IEX charges $500 for their Top of Book Quote and Last Sale (TOPS) real-time feed and $2,500 per month for its Depth of Book and Last Sale (DEEP) real-time feed. See https://exchange.iex.io/ resources/trading/fee-schedule/. Cboe BYX Exchange, Inc. (‘‘BYX’’) charges a $250/month external distribution fee for BYX top-of-book data VerDate Sep<11>2014 22:43 Dec 23, 2022 Jkt 259001 Firms wishing to access liquidity on ASPEN Fee/Fee may connect in a variety of ways. Firms that are IntelligentCross subscribers connect to ASPEN via a Financial Information Exchange (‘‘FIX’’) connection. Such access is available to subscribers through an internet protocol address via communications that are compliant with the FIX application programming interface (‘‘API’’) provided by IntelligentCross. IntelligentCross does not accept orders via any other forms of communication (e.g., telephone, email, instant message). IntelligentCross allows a subscriber to determine its level of connectivity and does not tier or discriminate among subscribers. IntelligentCross has represented that it does not charge connectivity fees to its subscribers. Subscribers wanting to connect directly to IntelligentCross’ user acceptance testing and production servers must establish cross-connects with the servers of IntelligentCross’ colocation and network provider, Pico Quantitative Trading, or connect through other network service providers that have a presence in the Equinix NY4 data center. IntelligentCross has represented that it is not involved in the installation of cross-connects; thus, subscribers must establish a relationship directly with the network service provider, NY4.42 IntelligentCross has represented that it does not currently charge connectivity fees to access ASPEN and has offered to pay for certain of subscribers’ cross-connect fees at NY4. IntelligentCross also currently pays for one primary connection and one back-up connection, and any direct subscriber is eligible for this payment. IntelligentCross’ network provider and other similar network providers may charge fees relating to connectivity. IntelligentCross has represented that any such connectivity fees would be and a $1,000/month external distribution fee for BYX last sale data. See https://www.cboe.com/us/ equities/membership/fee_schedule/byx/. MEMX charges a $2,000/month external distributor fee for its top-of-book data and a $2,000/month external distributor fee for last sale data. See https:// info.memxtrading.com/fee-schedule/. 42 Exchange port fees can range from $100 to $20,000 per port, per month. For example, BYX assesses a fee of $2,500 to $7,500 per month per FIX physical port (depending on the size of the port). For logical ports, BYX charges $550/port/month. See https://www.cboe.com/us/equities/ membership/fee_schedule/byx. Nasdaq Stock Market LLC (‘‘Nasdaq’’) assesses fees for physical connections ranging from $2,500 to $20,000 (based on the size and type of physical connection). For Logical ports, Nasdaq charges $575/port/month. See https://www.nasdaqtrader.com/ Trader.aspx?id=PriceListTrading2. IEX does not charge for the first five ports (above 5 ports, IEX charges $100/port/month). https://exchange.iex.io/ resources/trading/get-connected-directly/ index.html. PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 substantially equivalent to the costs to connect to any other trading center, such as an exchange.43 As stated in its summary, IntelligentCross also has established and maintains policies and procedures related to periodic system capacity reviews and tests to ensure future capacity, as well as policies and procedures to identify potential weaknesses and reduce the risks of system failures and threats to system integrity. For purposes of displaying orders through the ADF, IntelligentCross’ policies and procedures also require continuous monitoring of ASPEN’s connections with an SRO display-only facility and, in the event that ASPEN loses connection with the ADF, IntelligentCross has contingency plans in place, including removing (i.e., ‘‘zeroing out’’) all quotes previously published by the system to the ADF and notifying its subscribers of such interruption. If the Commission approves the proposed rule change, the effective date of the proposed rule change will be the date of Commission approval. 2. Statutory Basis FINRA believes that the proposed rule change is consistent with the provisions of 15A(b)(6) of the Act,44 which requires, among other things, that FINRA rules must be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest, 15A(b)(9) of the Act,45 which requires that FINRA rules not impose any burden on competition that is not necessary or appropriate, and 15A(b)(11) of the Act,46 which requires among other things that FINRA rules include provisions governing the form and content of quotations relating to securities sold otherwise than on a national securities exchange which may 43 IntelligentCross does not assess other charges that may be assessed by exchanges, such as membership fees, trading rights fees, risk gateway fees and other miscellaneous fees. FINRA notes that these are the current fees assessed and rebates paid by IntelligentCross, and that IntelligentCross’ fees may be subject to change. In the event that IntelligentCross makes a material change to the policies and procedures governing access to IntelligentCross, including a change to its fees, IntelligentCross has represented that it will submit the changes made to FINRA, and acknowledges that FINRA will post on its website an amended description of IntelligentCross’ policies, procedures and fees governing access. Changes to the operations of IntelligentCross, as well as its disclosures on its public Form ATS–N, are subject to the requirements of Rule 304 of Regulation ATS. 44 15 U.S.C. 78o–3(b)(6). 45 15 U.S.C. 78o–3(b)(9). 46 15 U.S.C. 78o–3(b)(11). E:\FR\FM\27DEN1.SGM 27DEN1 TKELLEY on DSK125TN23PROD with NOTICES Federal Register / Vol. 87, No. 247 / Tuesday, December 27, 2022 / Notices be distributed or published by any member or person associated with a member, and the persons to whom such quotations may be supplied. Such rules relating to quotations must be designed to produce fair and informative quotations, to prevent fictitious or misleading quotations, and to promote orderly procedures for collecting, distributing, and publishing quotations. FINRA believes the proposed rule change is consistent with the Act because it is being submitted pursuant to Rule 610 of Regulation NMS and the requirements set forth in the NMS Adopting Release, which require FINRA to submit a proposed rule change upon the addition of a new ADF participant. This proposed rule change is also consistent with the Act in that it sets forth the fees, policies and procedures governing access to protected quotations ASPEN Fee/Fee may display on the ADF, which were identified by the Commission as central concerns surrounding the adoption of Rule 610. FINRA believes that IntelligentCross’ policies, procedures and standards governing access to ASPEN Fee/Fee’s quotations are consistent with the objectives of Regulation NMS and provide market participants with fair and efficient access and are not unfairly discriminatory. For example, as provided in IntelligentCross’ summary, any registered U.S. broker-dealer can be a subscriber of ASPEN Fee/Fee and must be in good standing with an SRO to be eligible to become a subscriber, and subscribers also must satisfy certain other eligibility requirements.47 Both subscribers and non-subscribers may access liquidity on ASPEN Fee/Fee; when ASPEN Fee/Fee displays orders through the ADF, non-subscribers would access ASPEN Fee/Fee through a subscriber, and ASPEN Fee/Fee would therefore respond to orders by nonsubscribers as promptly as it responds to orders by subscribers. IntelligentCross allows a subscriber to determine its level of connectivity,48 and ASPEN Fee/ Fee does not have any tiers or rules regarding execution of orders based upon the subscriber’s identity. In addition, and as discussed above, IntelligentCross has represented that no subscriber (or non-subscribers accessing IntelligentCross through a subscriber) is given any type of priority through the ASPEN Fee/Fee matching process, the 47 For example, a subscriber must pass Office of Foreign Asset Control checks and pass disciplinary/ regulatory reviews. A subscriber also must satisfy such technical or systems requirements as may be prescribed by IntelligentCross. See IntelligentCross’ Form ATS–N, Part III, Item 2. 48 See IntelligentCross’ Form ATS–N, Part III, Item 6. VerDate Sep<11>2014 22:43 Dec 23, 2022 Jkt 259001 ASPEN Fee/Fee matching process is blind to the identity of the subscriber (or a non-subscriber accessing IntelligentCross through a subscriber), and the ASPEN Fee/Fee matching mechanism applies uniformly to all subscribers (and non-subscribers accessing the ASPEN Fee/Fee book through a subscriber). FINRA believes that the proposed level and cost of access is, in relative terms, substantially equivalent to the level and cost of access provided by SRO trading facilities. B. Self-Regulatory Organization’s Statement on Burden on Competition FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA notes that the purpose of this filing is to provide for the opportunity for public notice and comment on the addition of a new ADF entrant as required by Rule 610 of Regulation NMS and the NMS Adopting Release, along with that new entrant’s proposed fees and policies and procedures for accessing protected quotations that it may display on the ADF. As such, FINRA believes that the proposed rule change may in fact promote competition by providing information about the level of access provided, and fees assessed, by a new ADF entrant. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments were neither solicited nor 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 (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 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. 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. PO 00000 Frm 00133 Fmt 4703 Sfmt 9990 79405 Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– FINRA–2022–032 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–FINRA–2022–032. 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 (https://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 such filing also will be available for inspection and copying at the principal office of FINRA. 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–FINRA– 2022–032, and should be submitted on or before January 17, 2023. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.49 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2022–28085 Filed 12–23–22; 8:45 am] BILLING CODE 8011–01–P 49 17 E:\FR\FM\27DEN1.SGM CFR 200.30–3(a)(12). 27DEN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 87, Number 247 (Tuesday, December 27, 2022)]
[Notices]
[Pages 79401-79405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28085]



[[Page 79401]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96550; File No. SR-FINRA-2022-032]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of a Proposed Rule Change Relating to 
Alternative Display Facility New Entrant

December 20, 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 December 16, 2022, the Financial Industry Regulatory Authority, Inc. 
(``FINRA'') 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 FINRA. 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

    FINRA is proposing to add IntelligentCross ATS 
(``IntelligentCross'') as a new entrant to the Alternative Display 
Facility (``ADF'').
    IntelligentCross has prepared a summary of its policies and 
procedures regarding access to quotations in an NMS stock displayed on 
the ADF, and a summary of its proposed fees for such access. A copy of 
that summary is available on FINRA's website at https://www.finra.org.
    The proposed rule change does not make any changes to the text of 
FINRA rules.

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

    In its filing with the Commission, FINRA 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. FINRA 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
    FINRA is proposing to add a new entrant--IntelligentCross--to the 
ADF. The ADF is a quotation collection and trade reporting facility 
that provides ADF market participants (i.e., ADF-registered market 
makers or electronic communications networks) \3\ the ability to post 
quotations, display orders and report transactions in NMS stocks \4\ 
for submission to the securities information processors (``SIP'') for 
consolidation and dissemination to vendors and other market 
participants. In addition, the ADF delivers real-time data to FINRA for 
regulatory purposes, including enforcement of requirements imposed by 
SEC Regulation NMS.
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    \3\ See FINRA Rule 6220(a)(3).
    \4\ See 17 CFR 242.600.
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    The ADF was initially approved by the Commission on July 24, 2002, 
in connection with Nasdaq's registration as a national securities 
exchange.\5\ At that time, the ADF was approved for Nasdaq-listed 
securities for a nine-month pilot period to provide FINRA members with 
an alternative to the Nasdaq systems for reporting quotations and 
transactions in Nasdaq UTP Plan securities.
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    \5\ See Securities Exchange Act Release No. 46249 (July 24, 
2002), 67 FR 49822 (July 31, 2002) (Order Approving File No. SR-
NASD-2002-97); see also Notice to Members 02-45 (August 2002).
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    In 2005, the Commission adopted Regulation NMS, which included an 
order protection rule \6\ that established trade-through protection for 
all NMS stocks.\7\ Since the ADF is a display-only facility, a market 
participant would have to access the actual ADF participant that posted 
the protected quotation on the ADF in order to comply with the Order 
Protection Rule.\8\ In the NMS Adopting Release, the Commission noted 
that market participants could potentially access an ADF participant 
either through direct access or through a private network.\9\
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    \6\ Rule 611 of Regulation NMS (the ``Order Protection Rule'') 
provides that a trading center ``shall establish, maintain, and 
enforce written policies and procedures that are reasonably designed 
to prevent trade-throughs on that trading center of protected 
quotations in NMS stocks'' that do not fall within one of the 
exceptions set forth in the rule. See 17 CFR 242.611.
    \7\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37501 (June 29, 2005) (``NMS Adopting 
Release'').
    \8\ See NMS Adopting Release, supra note 7 at 37541.
    \9\ See NMS Adopting Release, supra note 7 at 37543.
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    Given that market participants could be required to access multiple 
ADF participants to comply with the Order Protection Rule, the 
Commission formulated Rule 610 under SEC Regulation NMS to ensure that 
market participants would be afforded ``fair and efficient access'' to 
such trading centers.\10\ Accordingly, Rule 610 requires that a trading 
center displaying quotations in an NMS stock through an SRO display-
only facility (such as the ADF) ``provide a level and cost of access to 
such quotations that is substantially equivalent to the level and cost 
of access to quotations displayed by SRO trading facilities in that 
stock.'' \11\ Rule 610 also requires that a trading center displaying 
quotations in an NMS stock through an SRO display-only facility not 
impose unfairly discriminatory terms that prevent or inhibit any person 
from obtaining efficient access to such quotations through a member, 
subscriber, or customer of the trading center.\12\
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    \10\ See NMS Adopting Release, supra note 7 at 37549.
    \11\ 17 CFR 242.610(b)(1).
    \12\ 17 CFR 242.610(b)(2).
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    In articulating this standard, the Commission noted that the level 
and cost of access would ``encompass both (1) the policies, procedures, 
and standards that govern access to quotations of the trading center, 
and (2) the connectivity through which market participants can obtain 
access and the cost of such connectivity.'' \13\ The nature and cost of 
connections for market participants seeking to access an ADF 
participant's quotations would need to be substantially equivalent to 
the nature and cost of connections to SRO trading facilities.\14\
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    \13\ See NMS Adopting Release, supra note 7 at 37549.
    \14\ See NMS Adopting Release, supra note 7 at 37549.
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    In evaluating whether ADF participants are meeting the access 
standards under Rule 610 of Regulation NMS, i.e., that the cost of 
accessing an ADF participant is substantially equivalent to the cost of 
accessing an SRO trading facility, the Commission stated that the NASD 
(now FINRA) would act as a gatekeeper in this process. As such, FINRA 
would be required to submit a proposed rule change pursuant to 19(b) of 
the Act to add a new ADF participant.\15\ There has not been an active 
quoting participant on the ADF since the first quarter of 2015. 
Consistent with the requirements of Rule 610 of Regulation NMS and the 
NMS Adopting Release, FINRA is submitting this proposed rule change so

[[Page 79402]]

that IntelligentCross may become an ADF market participant.
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    \15\ See NMS Adopting Release, supra note 7 at 37549.
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Overview of IntelligentCross
    IntelligentCross is an NMS stock ATS operating pursuant to an 
effective Form ATS-N and is required to comply with the conditions of 
the Regulation ATS exemption.\16\ IntelligentCross ASPEN operates three 
separate limit order books with optional display capability 
distinguished by different fee structures--the ASPEN fee/fee limit 
order book, ASPEN maker/taker limit order book, and ASPEN taker/maker 
limit order book.\17\ All three ASPEN order books act independently of 
each other; therefore, orders resting in one book do not rest on or 
interact with orders resting in another book.\18\ The ASPEN Fee/Fee 
limit order book would be the only order book displaying orders on the 
ADF. All activity on IntelligentCross is identified and reported under 
the ``INCR'' market participant identifier (or ``MPID'').\19\
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    \16\ See Form ATS-N Filings and Information page on the 
Securities and Exchange Commission's website, at https://www.sec.gov/divisions/marketreg/form-ats-n-filings.htm.
    \17\ For purposes of this filing, ``IntelligentCross ASPEN'' 
refers collectively to the three ASPEN limit order books. ``ASPEN 
Fee/Fee'' refers to the ASPEN fee/fee limit order book with optional 
display capability that would display orders on the ADF. In addition 
to IntelligentCross ASPEN, IntelligentCross also operates a midpoint 
book that only accepts non-displayed midpoint orders, which is 
distinct from and does not interact with any of the three ASPEN 
limit order books.
    \18\ ASPEN Fee/Fee publishes displayed prices in over 6,900 
securities. As set forth in IntelligentCross' summary, any orders 
entered into IntelligentCross will default to the ASPEN Fee/Fee book 
(aside from midpoint peg orders, which will default to the midpoint 
book). A subscriber who wishes to trade in the ASPEN maker/taker or 
taker/maker books must affirmatively identify those books when 
entering their order.
    \19\ IntelligentCross recognizes that, should trading reach the 
applicable thresholds under Rule 301(b)(3) or Rule 301(b)(5) of 
Regulation ATS, IntelligentCross would be required to comply with 
the applicable requirements of Regulation ATS. See, e.g., 17 CFR 
242.301(b)(3) and (b)(5). In addition, IntelligentCross acknowledges 
that other regulatory obligations may become applicable in the 
future depending upon changes to the platform or its volume (e.g., 
obligations under Regulation Systems Compliance and Integrity). See 
17 CFR 242.1000 through 242.1007.
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    As set forth in IntelligentCross' summary, IntelligentCross only 
permits registered broker-dealers to be subscribers to 
IntelligentCross, and subscribers can interact with ASPEN Fee/Fee using 
conventional order types. Specifically, ASPEN Fee/Fee accepts limit 
orders with optional display instructions, immediate or cancel orders, 
and pegged orders (which are treated as regular orders with an 
automated repricing to the national best bid or offer (``NBBO'')).\20\ 
Only ASPEN Fee/Fee will accept incoming intermarket sweep orders 
(``ISOs'') \21\ once it displays orders on the ADF.\22\
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    \20\ As set forth in IntelligentCross' summary, only limit 
orders and primary peg orders (with or without a limit price) are 
eligible to be displayed on the ASPEN Fee/Fee book, and therefore on 
the ADF.
    \21\ 17 CFR 242.600(b)(38).
    \22\ As set forth in its summary, IntelligentCross has 
represented that ASPEN Fee/Fee will be the only ASPEN order book 
that will accept ISOs.
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    IntelligentCross has represented that ASPEN Fee/Fee utilizes a 
matching process that it has engineered to seek to maximize price 
discovery and provide an opportunity for investors to improve 
performance and achieve best execution. As set forth in its summary, 
ASPEN Fee/Fee establishes a matching schedule using an overnight 
optimization process that uses historical performance measurements from 
prior days' matches across all three IntelligentCross ASPEN books. 
Match schedules are defined by minimum/maximum time bands for each 
security, and these bands can have a minimum time of 150 microseconds 
and a maximum time of 900 microseconds (i.e., the maximum time for 
scheduling a match event is capped at 900 microseconds). For example, 
on a particular day, the match event band for XYZ stock may have a 
minimum time of 450 microseconds and a maximum time of 600 
microseconds. The time of the actual match event is randomized within 
the match event band throughout the course of the trading day. Any 
order for a security that arrives prior to a match event (and that has 
not been cancelled, become unmarketable, or repriced) \23\ will be 
eligible to participate in the next match event for that security.\24\ 
ASPEN Fee/Fee's matching process operates on a near-continuous basis 
throughout the day.\25\ Match events are scheduled continuously while 
ASPEN Fee/Fee's order book is in a ``matchable state'' (i.e., there is 
an order on each side eligible to match).\26\
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    \23\ As set forth in its summary, IntelligentCross has 
represented that situations may occur where an incoming order on 
ASPEN Fee/Fee may not execute against a resting order at match event 
time such as where: an existing resting order cancels prior to the 
next match event; an incoming order is canceled prior to the next 
match event; the NBBO moves between the time an order is received 
and the next match event takes place, making either the incoming 
order or the resting order non-marketable; or the NBBO changed 
before the next match event and pegged orders were repriced to the 
new NBBO, making the incoming order or the resting pegged order non-
marketable.
    \24\ Both sides of the trade (buyers and sellers) are on equal 
footing for the next scheduled match event, while maintaining full 
control of their orders, i.e., both sides can cancel or update their 
orders at any time prior to the match. The ASPEN Fee/Fee book will 
automatically update its quotations, and all quotation updates, 
including those due to new or cancelled orders, are immediate.
    \25\ A list of illustrative use cases of IntelligentCross' 
matching process is included in the IntelligentCross Form ATS-N. See 
supra note 16.
    \26\ If there are no orders for a stock in the book, no match 
event will be scheduled. An incoming order that will make the book 
potentially matchable will trigger a scheduling of a match event if 
one has not already been scheduled.
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    For each match event time, ASPEN Fee/Fee retrieves the NBBO and 
processes all the orders that have arrived and have not been cancelled 
in price-time priority (and, at each price level, displayed orders will 
have priority over non-displayed orders).\27\ No subscriber (or non-
subscriber accessing IntelligentCross through a subscriber) is given 
any priority through the matching process and the matching process is 
blind to the identity of the subscriber. Any matches are immediately 
reported to subscribers and the SIPs via a FINRA trade reporting 
facility and disseminated on IntelligentCross' market data feed.\28\ 
ASPEN Fee/Fee automatically updates its quotations, and all quotation 
updates, including those due to new or cancelled orders, are immediate. 
As set forth in its summary, IntelligentCross will maintain policies 
and procedures designed for ASPEN Fee/Fee to maintain a linkage with 
the ADF and to transmit to the ADF for display the best priced orders 
entered by subscribers. As stated in its summary, IntelligentCross 
believes that including ASPEN Fee/Fee's displayed liquidity as a 
protected quote on the ADF will provide market participants an 
opportunity to improve performance and achieve best execution for their 
customers.
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    \27\ IntelligentCross uses a combination of SIP and proprietary 
direct feeds from national securities exchanges to determine the 
NBBO and protected quotes (e.g., for trade through purposes), and to 
price executions.
    \28\ IntelligentCross has represented that displayed orders from 
all three ASPEN order books are available in the IQX market data 
feed. Each of the ASPEN books have individualized data feeds; as 
such, subscribers to the IQX market data feed can choose to consume 
data from whichever ASPEN books they choose through separate feed 
identifiers. IntelligentCross has represented that the ASPEN Fee/Fee 
book will provide any quotes or quote updates to the ADF no later 
than what is disseminated via the IQX market data feed.
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Regulation NMS Requirements for Protected Quotations
    Rule 611 of Regulation NMS provides for price protection across 
markets against trade-throughs for ``automated quotations'' in NMS 
stocks.\29\ Under Regulation NMS, an ``automated

[[Page 79403]]

quotation'' is one that, among other things, can be executed 
``immediately and automatically'' against an incoming IOC order.\30\ As 
stated above, IntelligentCross has represented that ASPEN Fee/Fee's 
matching engine operates near-continuously and that, when a new order 
arrives in the ASPEN Fee/Fee book, it will participate in the next 
scheduled match event by interacting with existing orders in the order 
book within a maximum time capped at 900 microseconds.
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    \29\ 17 CFR 242.600(b)(6). See also 17 CFR 242.600(b)(70) and 
(71).
    \30\ 17 CFR 242.600(b)(6).
---------------------------------------------------------------------------

    FINRA believes that quotations displayed on ASPEN Fee/Fee would 
meet the definition of an ``automated quotation'' under Regulation NMS. 
FINRA notes that, in 2016, the Commission interpreted Regulation NMS's 
immediacy requirement to allow for ``an intentional access delay that 
is de minimis--i.e., a delay so short as to not frustrate the purposes 
of Rule 611 by impairing fair and efficient access to an exchange's 
quotations.'' \31\ The Commission stated that ``[i]n the context of 
Regulation NMS, the term `immediate' does not preclude all intentional 
delays regardless of their duration, and such preclusion is not 
necessary to achieve the objectives of Rule 611. As long as any 
intentional delay is de minimis--i.e., does not impair fair and 
efficient access to an exchange's protected quotations--it is 
consistent with both the text and purpose of Rule 611.'' \32\ SEC staff 
has further stated that ``consistent with the Commission's 
interpretation regarding automated quotation under Rule 600(b)(3) of 
Regulation NMS, delays of less than a millisecond are at a de minimis 
level that would not impair fair and efficient access to a quotation, 
consistent with the goals of Rule 611.'' \33\
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    \31\ Commission Interpretation Regarding Automated Quotations 
Under Regulation NMS, Securities Exchange Act Release No. 78102 
(June 17, 2016), 81 FR 40785, 40792 (June 23, 2016).
    \32\ See supra note 31.
    \33\ See Staff Guidance on Automated Quotations under Regulation 
NMS available at https://www.sec.gov/divisions/marketreg/automated-quotations-under-regulation-nms.htm.
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    FINRA notes that ASPEN Fee/Fee's matching process includes match 
events that occur at pre-defined increments within 150 microseconds to 
900 microseconds of order arrival, which is less than one millisecond. 
FINRA believes that this de minimis delay provides for an ``immediate'' 
execution of incoming orders while ASPEN Fee/Fee's order book is in a 
matchable state. In addition, FINRA believes that ASPEN Fee/Fee's 
matching process executes orders automatically because, as set forth in 
its summary, IntelligentCross represented that the quotations displayed 
on ASPEN Fee/Fee are handled on an automated basis and that there is no 
human discretion in determining any action taken with respect to an 
order after the order is received.\34\
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    \34\ The Commission has stated that, for a quotation ``[t]o 
qualify as `automatic,' no human discretion in determining any 
action taken with respect to an order may be exercised after the 
time an order is received,'' and ``a quotation will not qualify as 
`automated' if any human intervention after the time an order is 
received is allowed to determine the action taken with respect to 
the quotation.'' See Regulation NMS Adopting Release, supra note 7 
at 37519 and 37534.
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    As discussed in IntelligentCross' summary and above,\35\ situations 
may occur where an incoming order may not execute against a resting 
order at match event time, such as when an existing resting order 
cancels prior to the next match event; an incoming order is canceled 
prior to the next match event; the NBBO moves between the time an order 
is received and the next match event takes place, making either the 
incoming order or the resting order non-marketable; or the NBBO changed 
before the next match event and pegged orders were repriced to the new 
NBBO, making the incoming order or the resting pegged order non-
marketable.
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    \35\ See supra note 23.
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    For example, assume the NBBO in XYZ stock is $10.00 x $10.01 at 
9:30:00.000000 and ASPEN Fee/Fee is displaying a limit order to buy at 
$10.00. At 9:30:00.000010, ASPEN Fee/Fee receives an order to sell at 
$10.00. At 9:30:00.000020, the displayed limit order to buy is 
cancelled. At 9:30:00.000040--the time of the next scheduled match 
event in XYZ stock--no match event occurs as there are no two matchable 
orders at that time. The same result would occur in this example if a 
subscriber sent a sell order that would have interacted with the buy 
limit order but then cancels their sell order at any time prior to the 
next scheduled match event.
    As another example, assume the NBBO in XYZ stock is $10.00 x $10.01 
at 9:30:00.000000 and ASPEN Fee/Fee is displaying a limit order to buy 
at $10.00. At 9:30:00.000010, ASPEN Fee/Fee receives a sell order to 
sell at $10.00. At 9:30:00.000040--the time of the next scheduled match 
event in XYZ stock--the NBBO has changed and is now 10.01 x 10.02. A 
match will not occur because ASPEN Fee/Fee will not execute a match 
outside of the NBBO (i.e., the resting order is now non-marketable) 
except that, as set forth in IntelligentCross' summary, if the sell 
order were an ISO, an execution would occur at $10.00 at the scheduled 
match event time.
    Finally, assume that the NBBO in XYZ stock is $10.00 x $10.01 at 
9:30:00.000000 and ASPEN Fee/Fee is displaying a primary peg buy order 
with a limit of $10.00. At 9:30:00.000010, ASPEN Fee/Fee receives a 
sell order to sell at $10.00. At 9:30:00.000040, the time of the next 
scheduled match event in XYZ stock, the NBBO is now $9.99 x $10.01. A 
match will not occur because the pegged order follows the NBBO and gets 
repriced to the current NBBO of $9.99. If the NBBO had moved to $10.01 
x $10.02, ASPEN Fee/Fee's primary peg would not reprice as it is 
limited to $10.00, and a match also would not occur.
    IntelligentCross has represented that non-match events on ASPEN 
Fee/Fee occur in a minority of cases. Year-to-date (through the end of 
November 2022), IntelligentCross represented that 4.2 percent of 
potential matches on ASPEN Fee/Fee did not complete because a displayed 
order was canceled, and 4.7 percent of potential matches on ASPEN Fee/
Fee did not complete because the NBBO changed and at least one of the 
sides became non-marketable. In such cases, IntelligentCross 
represented that subscribers exercised their right to change their 
orders or, in the case of pegged orders, instructed that their orders 
be changed in reaction to NBBO changes.
Level of Cost and Access to ASPEN Fee/Fee Quotations
    Regulation NMS Rule 610(b) requires that any trading center that 
displays quotations in an NMS stock through an SRO display-only 
facility must provide a level and cost of access to such quotations 
that is substantially equivalent to the level and cost of access to 
quotations displayed by SRO trading facilities in that stock.\36\ 
Regulation NMS Rule 610(b) further requires that any trading center 
that displays quotations in an NMS stock through an SRO display-only 
facility shall not impose unfairly discriminatory terms that prevent or 
inhibit any person from obtaining efficient access to such quotations 
through a member, subscriber, or customer of the trading center. The 
cost of accessing the quotation of a trading center may consist of 
several distinct costs, such as port fees, market data fees, general 
connectivity fees, and transaction fees. As set forth in its summary, 
IntelligentCross represented that it believes the level and cost of 
access to its quotations complies with Rule 610 of

[[Page 79404]]

Regulation NMS and will be substantially equivalent to the cost of 
access to quotations displayed by SRO trading facilities in that stock 
and the costs to connect to any other trading center, such as an 
exchange. IntelligentCross also represented that it utilizes a matching 
process that provides fair and efficient access to its quotations.\37\
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    \36\ 17 CFR 242.610(b).
    \37\ With respect to the requirement that the nature and cost 
for market participants seeking to access an ADF Trading Center be 
substantially equivalent to the nature and cost of connection to SRO 
trading facilities, FINRA notes that the Commission stated in the 
NMS Adopting Release that this requirement does not apply on an 
absolute basis, but rather applies on a per-transaction basis to 
reflect the costs relative to the ADF participant's trading volume. 
See NMS Adopting Release, supra note 7 at 37549 n.449. Based on 
IntelligentCross' representations, FINRA believes that 
IntelligentCross' proposed level and cost of access to quotations on 
ASPEN Fee/Fee is substantially equivalent to the level and cost of 
access to quotations displayed by an SRO trading facility, both in 
absolute and relative terms.
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    Specifically, as described in its summary, IntelligentCross 
utilizes a fee/fee pricing model for activity on ASPEN Fee/Fee where 
both sides are charged the same fee for transactions.\38\ The base rate 
charged by IntelligentCross is $0.0008 per share for each side of a 
transaction on ASPEN Fee/Fee.\39\ IntelligentCross' fee schedule for 
subscribers is published in the IntelligentCross Form ATS-N and pricing 
is subject to change with advance notice provided to subscribers. 
Eligible displayed orders are published via a free market data feed 
(``IQX market data feed'').\40\ In comparison, market data fees vary by 
exchange, with some exchanges charging fees that range from under $500 
per month to $2500, and some exchanges charging $4000 for external 
distribution.\41\
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    \38\ IntelligentCross has represented that ASPEN Fee/Fee 
subscribers can pay lower fees through (1) a ``Total Composite 
Volume Incentive'' based on the total market volume in all NMS 
Stocks reported to the consolidated tape and (2) an ``Active Order 
Incentive'' which is based on a per symbol basis and the percent 
that is marketable. The ASPEN Fee/Fee and midpoint order books will 
follow the same fee schedule, and shares traded will aggregate for 
volume pricing tiers. The ASPEN maker/taker and ASPEN taker/maker 
orders books are charged independently.
    \39\ In comparison, Cboe BZX Exchange, Inc. assesses a $0.0030 
charge per share for orders in securities priced $1 or above that 
remove liquidity. Investors Exchange LLC (``IEX'') assesses a fee of 
$0.0006 for removing displayed liquidity for orders in securities 
that are priced at or above $1, and MEMX LLC (``MEMX'') assesses a 
fee that ranges from $0.0029 to $0.0030 for removing displayed 
liquidity above $1.
    \40\ See supra note 28.
    \41\ IEX charges $500 for their Top of Book Quote and Last Sale 
(TOPS) real-time feed and $2,500 per month for its Depth of Book and 
Last Sale (DEEP) real-time feed. See https://exchange.iex.io/resources/trading/fee-schedule/. Cboe BYX Exchange, Inc. (``BYX'') 
charges a $250/month external distribution fee for BYX top-of-book 
data and a $1,000/month external distribution fee for BYX last sale 
data. See https://www.cboe.com/us/equities/membership/fee_schedule/byx/. MEMX charges a $2,000/month external distributor fee for its 
top-of-book data and a $2,000/month external distributor fee for 
last sale data. See https://info.memxtrading.com/fee-schedule/.
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    Firms wishing to access liquidity on ASPEN Fee/Fee may connect in a 
variety of ways. Firms that are IntelligentCross subscribers connect to 
ASPEN via a Financial Information Exchange (``FIX'') connection. Such 
access is available to subscribers through an internet protocol address 
via communications that are compliant with the FIX application 
programming interface (``API'') provided by IntelligentCross. 
IntelligentCross does not accept orders via any other forms of 
communication (e.g., telephone, email, instant message). 
IntelligentCross allows a subscriber to determine its level of 
connectivity and does not tier or discriminate among subscribers.
    IntelligentCross has represented that it does not charge 
connectivity fees to its subscribers. Subscribers wanting to connect 
directly to IntelligentCross' user acceptance testing and production 
servers must establish cross-connects with the servers of 
IntelligentCross' co-location and network provider, Pico Quantitative 
Trading, or connect through other network service providers that have a 
presence in the Equinix NY4 data center. IntelligentCross has 
represented that it is not involved in the installation of cross-
connects; thus, subscribers must establish a relationship directly with 
the network service provider, NY4.\42\ IntelligentCross has represented 
that it does not currently charge connectivity fees to access ASPEN and 
has offered to pay for certain of subscribers' cross-connect fees at 
NY4. IntelligentCross also currently pays for one primary connection 
and one back-up connection, and any direct subscriber is eligible for 
this payment. IntelligentCross' network provider and other similar 
network providers may charge fees relating to connectivity. 
IntelligentCross has represented that any such connectivity fees would 
be substantially equivalent to the costs to connect to any other 
trading center, such as an exchange.\43\
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    \42\ Exchange port fees can range from $100 to $20,000 per port, 
per month. For example, BYX assesses a fee of $2,500 to $7,500 per 
month per FIX physical port (depending on the size of the port). For 
logical ports, BYX charges $550/port/month. See https://www.cboe.com/us/equities/membership/fee_schedule/byx. Nasdaq Stock 
Market LLC (``Nasdaq'') assesses fees for physical connections 
ranging from $2,500 to $20,000 (based on the size and type of 
physical connection). For Logical ports, Nasdaq charges $575/port/
month. See https://www.nasdaqtrader.com/Trader.aspx?id=PriceListTrading2. IEX does not charge for the first 
five ports (above 5 ports, IEX charges $100/port/month). https://exchange.iex.io/resources/trading/get-connected-directly/.
    \43\ IntelligentCross does not assess other charges that may be 
assessed by exchanges, such as membership fees, trading rights fees, 
risk gateway fees and other miscellaneous fees. FINRA notes that 
these are the current fees assessed and rebates paid by 
IntelligentCross, and that IntelligentCross' fees may be subject to 
change. In the event that IntelligentCross makes a material change 
to the policies and procedures governing access to IntelligentCross, 
including a change to its fees, IntelligentCross has represented 
that it will submit the changes made to FINRA, and acknowledges that 
FINRA will post on its website an amended description of 
IntelligentCross' policies, procedures and fees governing access. 
Changes to the operations of IntelligentCross, as well as its 
disclosures on its public Form ATS-N, are subject to the 
requirements of Rule 304 of Regulation ATS.
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    As stated in its summary, IntelligentCross also has established and 
maintains policies and procedures related to periodic system capacity 
reviews and tests to ensure future capacity, as well as policies and 
procedures to identify potential weaknesses and reduce the risks of 
system failures and threats to system integrity. For purposes of 
displaying orders through the ADF, IntelligentCross' policies and 
procedures also require continuous monitoring of ASPEN's connections 
with an SRO display-only facility and, in the event that ASPEN loses 
connection with the ADF, IntelligentCross has contingency plans in 
place, including removing (i.e., ``zeroing out'') all quotes previously 
published by the system to the ADF and notifying its subscribers of 
such interruption.
    If the Commission approves the proposed rule change, the effective 
date of the proposed rule change will be the date of Commission 
approval.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of 15A(b)(6) of the Act,\44\ which requires, among other 
things, that FINRA rules must be designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to protect investors and the 
public interest, 15A(b)(9) of the Act,\45\ which requires that FINRA 
rules not impose any burden on competition that is not necessary or 
appropriate, and 15A(b)(11) of the Act,\46\ which requires among other 
things that FINRA rules include provisions governing the form and 
content of quotations relating to securities sold otherwise than on a 
national securities exchange which may

[[Page 79405]]

be distributed or published by any member or person associated with a 
member, and the persons to whom such quotations may be supplied. Such 
rules relating to quotations must be designed to produce fair and 
informative quotations, to prevent fictitious or misleading quotations, 
and to promote orderly procedures for collecting, distributing, and 
publishing quotations.
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    \44\ 15 U.S.C. 78o-3(b)(6).
    \45\ 15 U.S.C. 78o-3(b)(9).
    \46\ 15 U.S.C. 78o-3(b)(11).
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    FINRA believes the proposed rule change is consistent with the Act 
because it is being submitted pursuant to Rule 610 of Regulation NMS 
and the requirements set forth in the NMS Adopting Release, which 
require FINRA to submit a proposed rule change upon the addition of a 
new ADF participant. This proposed rule change is also consistent with 
the Act in that it sets forth the fees, policies and procedures 
governing access to protected quotations ASPEN Fee/Fee may display on 
the ADF, which were identified by the Commission as central concerns 
surrounding the adoption of Rule 610.
    FINRA believes that IntelligentCross' policies, procedures and 
standards governing access to ASPEN Fee/Fee's quotations are consistent 
with the objectives of Regulation NMS and provide market participants 
with fair and efficient access and are not unfairly discriminatory. For 
example, as provided in IntelligentCross' summary, any registered U.S. 
broker-dealer can be a subscriber of ASPEN Fee/Fee and must be in good 
standing with an SRO to be eligible to become a subscriber, and 
subscribers also must satisfy certain other eligibility 
requirements.\47\
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    \47\ For example, a subscriber must pass Office of Foreign Asset 
Control checks and pass disciplinary/regulatory reviews. A 
subscriber also must satisfy such technical or systems requirements 
as may be prescribed by IntelligentCross. See IntelligentCross' Form 
ATS-N, Part III, Item 2.
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    Both subscribers and non-subscribers may access liquidity on ASPEN 
Fee/Fee; when ASPEN Fee/Fee displays orders through the ADF, non-
subscribers would access ASPEN Fee/Fee through a subscriber, and ASPEN 
Fee/Fee would therefore respond to orders by non-subscribers as 
promptly as it responds to orders by subscribers. IntelligentCross 
allows a subscriber to determine its level of connectivity,\48\ and 
ASPEN Fee/Fee does not have any tiers or rules regarding execution of 
orders based upon the subscriber's identity. In addition, and as 
discussed above, IntelligentCross has represented that no subscriber 
(or non-subscribers accessing IntelligentCross through a subscriber) is 
given any type of priority through the ASPEN Fee/Fee matching process, 
the ASPEN Fee/Fee matching process is blind to the identity of the 
subscriber (or a non-subscriber accessing IntelligentCross through a 
subscriber), and the ASPEN Fee/Fee matching mechanism applies uniformly 
to all subscribers (and non-subscribers accessing the ASPEN Fee/Fee 
book through a subscriber). FINRA believes that the proposed level and 
cost of access is, in relative terms, substantially equivalent to the 
level and cost of access provided by SRO trading facilities.
---------------------------------------------------------------------------

    \48\ See IntelligentCross' Form ATS-N, Part III, Item 6.
---------------------------------------------------------------------------

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

    FINRA does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. FINRA notes that the purpose of 
this filing is to provide for the opportunity for public notice and 
comment on the addition of a new ADF entrant as required by Rule 610 of 
Regulation NMS and the NMS Adopting Release, along with that new 
entrant's proposed fees and policies and procedures for accessing 
protected quotations that it may display on the ADF. As such, FINRA 
believes that the proposed rule change may in fact promote competition 
by providing information about the level of access provided, and fees 
assessed, by a new ADF entrant.

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

    Written comments were neither solicited nor 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 (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 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.

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-FINRA-2022-032 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-FINRA-2022-032. 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 (https://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 such filing also will be available for inspection 
and copying at the principal office of FINRA. 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-FINRA-2022-032, and should be submitted 
on or before January 17, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\49\
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    \49\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2022-28085 Filed 12-23-22; 8:45 am]
BILLING CODE 8011-01-P

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