Justia Agencies And Commissions Securities And Exchange Commission Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing of Partial Amendment No. 1 and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Partial Amendment No. 1, To Amend Equity 4, Rules 3301A and 3301B To Establish New “Contra Midpoint Only” and “Contra Midpoint Only With Post-Only” Order Types and To Make Other Corresponding Changes to the Rulebook, 85964-85967 [2023-27064]

Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing of Partial Amendment No. 1 and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Partial Amendment No. 1, To Amend Equity 4, Rules 3301A and 3301B To Establish New “Contra Midpoint Only” and “Contra Midpoint Only With Post-Only” Order Types and To Make Other Corresponding Changes to the Rulebook, 85964-85967 [2023-27064]

Download as PDF 85964 Federal Register / Vol. 88, No. 236 / Monday, December 11, 2023 / Notices SECURITIES AND EXCHANGE COMMISSION [Release No. 34–99083; File No. SR–PHLX– 2023–40] Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing of Partial Amendment No. 1 and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Partial Amendment No. 1, To Amend Equity 4, Rules 3301A and 3301B To Establish New ‘‘Contra Midpoint Only’’ and ‘‘Contra Midpoint Only With Post-Only’’ Order Types and To Make Other Corresponding Changes to the Rulebook December 5, 2023. On August 28, 2023, Nasdaq PHLX LLC (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Exchange Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to amend Equity 4, Rules 3301A and 3301B 3 to establish new ‘‘Contra Midpoint Only’’ (‘‘CMO’’) and ‘‘Contra Midpoint Only with PostOnly’’ (‘‘CMO+PO’’) order types and to make other corresponding changes to the Phlx Rulebook. The proposed rule change was published for comment in the Federal Register on September 8, 2023.4 On September 26, 2023, pursuant to section 19(b)(2) of the Exchange Act,5 the Commission designated a longer period within which to approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether to disapprove the proposed rule change.6 On November 2, 2023, the Exchange filed partial Amendment No.1 to the proposed rule change.7 The Commission lotter on DSK11XQN23PROD with NOTICES1 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 References herein to Phlx Rules in the 3000 Series shall mean rules in Phlx Equity 4. 4 See Securities Exchange Act Release No. 98280 (Sept. 1, 2023), 88 FR 62129 (‘‘Notice’’). 5 15 U.S.C. 78s(b)(2). 6 See Securities Exchange Act Release No. 98528, 88 FR 67846 (Oct. 2, 2023). The Commission designated December 7, 2023, as the date by which the Commission shall approve or disapprove, or institute proceedings to determine whether to approve or disapprove, the proposed rule change. 7 In partial Amendment No. 1, the Exchange (i) modified an example that illustrates the operation of the CMO order type; (ii) added in Rule 3301A(7)(B) that a user may enter a CMO using OUCH, RASH, and FIX; and (iii) added in Rule 3301A(8) that FIX, in addition to OUCH and RASH, may be used to enter a CMO+PO. When it submitted Amendment No. 1, the Exchange also submitted it as a comment letter to the filing. See Letter from Brett Kitt, Associate Vice President and Principal and Associate General Counsel, Nasdaq, Inc., to Vanessa Countryman, Secretary, VerDate Sep<11>2014 17:35 Dec 08, 2023 Jkt 262001 has received three comment letters on the proposed rule change, and the Exchange submitted a response to comments when it filed partial Amendment No. 1.8 The Commission is publishing this notice to solicit comments on the proposed rule change, as modified by partial Amendment No. 1, from interested persons and is instituting proceedings pursuant to section 19(b)(2)(B) of the Act 9 to determine whether to approve or disapprove the proposed rule change, as modified by partial Amendment No. 1. I. Description of the Proposal, as Modified by Partial Amendment No. 1 The Exchange proposes to amend Equity 4, Rule 3301A(b) to establish ‘‘CMO’’ and ‘‘CMO+PO’’ as new order types on the Exchange. The Exchange states that a CMO is a Non-Displayed Order Type priced at the midpoint between the National Best Bid and the National Best Offer (the ‘‘NBBO’’ and the midpoint of the NBBO, the ‘‘Midpoint’’).10 The Exchange states it will remove a CMO resting on the Order Book upon entry of certain types of incoming Orders that are likely to result in unfavorable executions, including because the incoming Orders are likely to indicate price movements that would be more favorable to the resting CMO user than the prevailing price.11 According to the Exchange, the CMO provides protection to the resting CMO user against executions at the prevailing Midpoint price that the user may deem unfavorable.12 The Exchange states that once the System removes a CMO under these circumstances, it would submit a new CMO at the then-current Midpoint price automatically on behalf of the user.13 The Exchange states that when it removes a CMO from its Order Book, it would not send a cancellation message, thus limiting the potential for information leakage.14 According to the Exchange, a CMO+PO is like a CMO, except that it provides for ‘‘post-only’’ functionality, meaning that like a Midpoint Peg PostOnly Order,15 a CMO+PO will execute Commission, dated November 2, 2023 (‘‘PHLX Response Letter’’), available at: https:// www.sec.gov/comments/sr-phlx-2023-40/srphlx 202340-293100-713082.pdf. 8 Comments and the Exchange’s response to comments are available at: https://www.sec.gov/ comments/sr-phlx-2023-40/srphlx202340-299539740902.pdf. 9 15 U.S.C. 78s(b)(2)(B). 10 See Notice, supra note 4, at 62130. 11 See id. 12 See id. 13 See id. 14 See id. at 62130 n.4. 15 See id. at 62130. See also Rule 3301A(b)(6). PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 upon entry only in circumstances where economically beneficial to the party entering the Order.16 The Exchange states that the CMO and CMO+PO are Order Types that it has developed to provide market participants with options to make their own determinations on various trade-offs that exist when executing their strategies in the markets (e.g., the amount of liquidity they can obtain in the near term versus the potential for market movement relative to the Midpoint price).17 The Exchange states that some participants may value avoiding immediate executions in order to wait for a better price while others would rather obtain the liquidity instead of waiting.18 The Exchange states that a CMO is a non-displayed Order Type with the Midpoint Pegging Attribute that will be priced and ranked in time order at the Midpoint and that a user may cancel a CMO at any time. According to the Exchange, the System will remove a CMO Order automatically if a CMO is resting at the Midpoint on the Exchange Book, an incoming Order is priced through the price of the CMO, the CMO would otherwise trade against the incoming Order,19 and one or more of the following conditions apply, which the Exchange anticipates are indicative of a pending price shift in favor of the CMO user: the incoming Order is Displayed and its size is greater than that of the resting CMO; 20 or the incoming Order is not Displayed, it is priced at or better than the far side of the NBBO, and its size is greater than that of the resting CMO.21 The Exchange provides the following two examples to illustrate the concept. In the first example, the National Best Bid is $10.00 and the National Best 16 See Notice, supra note 4, at 62130. id. 18 See id. 19 See id. The Exchange states, as an example, that the incoming Order is filled fully by resting interest with price/time priority ahead of the resting CMO Order, then the System will not remove the CMO Order from the Order Book. See id. at 62130 n.9. 20 See id. at 62130. The Exchange states that in this scenario, the Exchange observes that the incoming Order has the potential to cause the NBBO to shift, such that removal of the CMO will be preferable to allowing the CMO to execute at a Midpoint price that may be stale. The System will then automatically re-submit a new CMO on behalf of the user after removing the original CMO. See id. 21 See id. at 62130. The Exchange states that in this scenario, the incoming Order may not cause a shift in the NBBO, due to its hidden nature, but because it is priced aggressively at the far side of the NBBO, it still offers a CMO user an opportunity for an execution that is more favorable than the prevailing midpoint price. CMO functionality enables a participant to avail itself of this opportunity. See id. 17 See E:\FR\FM\11DEN1.SGM 11DEN1 Federal Register / Vol. 88, No. 236 / Monday, December 11, 2023 / Notices Offer is $11.00 and Participant A enters Order 1, which is a CMO to buy 100 shares of X that is priced at $10.50, the midpoint of the NBBO. While Order 1 is resting on the Exchange Book, Participant B enters Order 2, which is a Displayed Order to sell 200 shares of X at $10.40. The Exchange explains that in this instance, Order 2 is larger than Order 1 and that if Order 1 was not a CMO and it had executed against Order 2 at $10.50, then Participant A would have missed out on the favorable impact of Order 2 shifting the midpoint of the NBBO lower to $10.20. The Exchange states that, to avoid the outcome, the System would remove Order 1 from the Exchange Book and resubmit it as Order 3, priced at $10.20. If Participant C then enters Order 4 to sell 100 shares of X at $10.20, Order 3 would execute against Order 4 at $10.20, thus providing Participant A with price improvement.22 The Exchange provides a second example, in which the National Best Bid is $10.00 and the National Best Offer is $11.00, and Participant A again enters Order 1, which is a CMO to buy 100 shares of X that is priced at $10.50. While Order 1 is resting on the Exchange Book, Participant B enters Order 2, which this time is a NonDisplayed Order to sell 200 shares at $10.00. CMO functionality would activate for Order 1 both because Order 2 is larger than Order 1 and because Order 2 is priced at the far side of the NBBO. The System would resubmit Order 1 as Order 3, priced at $10.50. Order 3 would then execute at $10.00, again providing Participant A with price improvement relative to the prevailing midpoint price. The Exchange states it would permit Participant A to receive the benefit of Order 2, which is priced aggressively at the far side of the NBBO, even though Order 2 is a non-displayed Order that would not shift the NBBO or the midpoint.23 Additionally, the Exchange states that because a CMO inherently possesses the Midpoint Pegging Attribute, it will behave in accordance with Rule 3301B(d), which governs Orders with Midpoint Pegging.24 According to the Exchange, a user may enter a CMO (and a CMO+PO) using RASH or OUCH or 22 See id. at 62130–31. PHLX Response Letter, supra note 7, at 7. The Exchange further states there also may be scenarios where use of CMO might not ultimately benefit market participants, such as where the amount of price improvement associated with use of CMO is outweighed by the fee a participant would incur when its CMO is deemed to remove liquidity from the Exchange Book. See Notice, supra note 4, at 62131 n.10. 24 See Notice, supra note 4, at 62131. lotter on DSK11XQN23PROD with NOTICES1 23 See VerDate Sep<11>2014 17:35 Dec 08, 2023 Jkt 262001 FIX.25 Unlike other Orders with the Midpoint Pegging Attribute, however, CMOs cannot be assigned a Routing Attribute, such that provisions of the Midpoint Pegging Rule that govern Midpoint Pegged Orders with Routing do not apply to CMOs.26 The Exchange states that a CMO will not be accepted outside of Market Hours, and a CMO remaining unexecuted at the end of Market Hours will be cancelled by the System.27 Further, the Exchange states that the System will cancel CMOs when a trading halt is declared, and the System will reject any CMOs entered during a trading halt.28 A CMO user may opt to apply the Minimum Quantity, Trade Now, or Discretion Order Attributes and a TimeIn-Force to a CMO.29 The Exchange states that CMO+PO will possess all the characteristics and attributes of a CMO, as well as those of a Managed Midpoint Peg Post-Only Order, as set forth in Rule 3301A(b)(6), with certain exceptions.30 Like a Midpoint Peg Post-Only Order, a CMO+PO is a Non-Displayed Order that is priced at the Midpoint and executes upon entry only in circumstances where economically beneficial to the party entering the Order, and the price of the CMO+PO will be updated repeatedly to equal the midpoint between the NBBO, provided, however, that the CMO+PO will not be priced higher (lower) than its limit price.31 According to the Exchange, if the Midpoint between the NBBO becomes higher than (lower than) the limit price of a CMO+PO to buy (sell), the price of the CMO+PO will stop updating and the CMO+PO will post (with a Non-Display Attribute) at its limit price, but will resume updating if the Midpoint becomes lower than (higher than) the limit price of the CMO+PO to buy (sell).32 Similarly, if a CMO+PO is on the Exchange Book and subsequently the NBBO is crossed, or if 25 See PHLX Response Letter, supra note 7, at 7– 8. 26 See Notice, supra note 4, at 62131. id. 28 See id. In addition, the Exchange also proposes to amend the Exchange’s Rule governing Midpoint Pegging, at Rule 3301B(d), to add language stating that ‘‘Orders with Midpoint Pegging will be cancelled by the System when a trading halt is declared, and any Orders with Midpoint Pegging entered during a trading halt will be rejected.’’ The Exchange states that such language exists in a corresponding rule of the rulebook of the Exchange’s sister exchange, the Nasdaq Stock Market, LLC (Nasdaq Rule 4703(d)), but was mistakenly omitted from Rule 3301B(d). See id. at 62131 n.13. 29 See id. at 62131. 30 See id. 31 See id. Also like a Midpoint Peg Post-Only Order, a CMO+PO may not possess the Discretion or Routing Order Attributes, and a CMO+PO must be priced at more than $1 per share. See id. 32 See id. 27 See PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 85965 there is no NBBO, the Order will be removed from the Exchange Book and will be re-entered at the new Midpoint once there is a valid NBBO that is not crossed.33 The Exchange states that CMO+PO receives a new timestamp each time its price is changed, and CMO+POs will be cancelled if they remain on the Exchange Book at the end of Market Hours.34 The Exchange states that CMO and CMO+PO executions will be reported to Securities Information Processors and provided in the Exchange’s proprietary data feed without any new or special indication.35 Further, as part of the surveillance the Exchange currently performs, CMOs and CMO+POs will be subject to real-time surveillance to determine if they are being abused by market participants.36 The Exchange states that it plans to implement CMO and CMO+PO within thirty days after Commission approval of the proposal and will make the CMO and CMO+PO available to all members and to all securities upon implementation.37 The Exchange plans to propose a fee structure for the CMO and CMO+PO in a subsequent Commission rule filing.38 II. Proceedings To Determine Whether To Approve or Disapprove SR–PHLX– 2023–40, as Modified by Partial Amendment No. 1, and Grounds for Disapproval Under Consideration The Commission is instituting proceedings pursuant to section 19(b)(2)(B) of the Act 39 to determine whether the proposed rule change, as modified by partial Amendment No.1, should be approved or disapproved. 33 See id. id. According to the Exchange, CMO+PO entered prior to the beginning of Market Hours will be rejected, and a CMO+PO will be cancelled by the System when a trading halt is declared, and any CMO+PO entered during a trading halt will be rejected. See id. at 62131 n.14. 35 See id. at 62132. 36 See id. The Exchange states that it is committed to determining whether there is opportunity or prevalence of behavior that is inconsistent with normal risk management behavior. The Exchange further states that 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 CMO or CMO+PO may be subject to penalties or other participant requirements to discourage such behavior, should it occur. See id. In addition, the Exchange states punitive fees or other participant requirements tied to CMO and CMO+PO usage will be implemented by rule filing under section 19(b) of the Act, 15 U.S.C. 78s(b), should the Exchange determine that they are necessary to maintain a fair and orderly market. See id. at 62132 n.15. 37 See id. at 62132. The Exchange states it will announce the implementation date by Equity Trader Alert. See id. 38 See id. at 62132 n.16. 39 15 U.S.C. 78s(b)(2)(B). 34 See E:\FR\FM\11DEN1.SGM 11DEN1 85966 Federal Register / Vol. 88, No. 236 / Monday, December 11, 2023 / Notices Institution of proceedings is appropriate at this time in view of the legal and policy issues raised by the proposed rule change and the comments received thereon. Institution of proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, the Commission seeks and encourages interested persons to provide additional comment on the proposed rule change, as modified by partial Amendment No. 1, to inform the Commission’s analysis of whether to approve or disapprove the proposed rule change, as modified by partial Amendment No. 1. Pursuant to section 19(b)(2)(B) of the Act,40 the Commission is providing notice of the grounds for possible disapproval under consideration. As noted above, the Commission received three comments on the proposal and the Exchange simultaneously filed a response to comments along with partial Amendment No. 1.41 Of note, one commenter raises unfair discrimination concerns, stating that the commenter is not aware of another exchange order type that would discriminate against orders to access liquidity in the specific way the CMO and CMO+PO order types do and that CMO would introduce a new form of segmentation without any indication that investors would stand to benefit.42 Another commenter states that it is troubled by the asymmetric information provided to the CMO order sender, as non-public information is provided to the CMO order sender when the CMO order is removed that no other participant will have.43 Similarly, another commenter states that CMO provides ample opportunities for information leakage, particularly when a user is able to detect the presence of a large order by observing executions on 40 Id. 41 See supra note 7. Letter from John Ramsay, Chief Market Policy Officer, Investors Exchange LLC, dated September 28, 2023 (‘‘IEX Letter’’) at 2–3. 43 See Letter from Joanna Mallers, Secretary, FIA Principal Traders Group, dated November 17, 2023 at 2. This commenter states that the originator of the CMO order knows that the contra side order is larger than the CMO order because trades occurred that would have executed against the resting CMO order had the size of the contra side order been equal to or smaller than the resting CMO order’s size. See id. The commenter expresses concern that CMO order sender could discern that the opposing, unexecuted order exists, and profit from that information without the need to trade with it. See id. See also Letter from Joseph Saluzzi, Partner, Themis Trading LLC, dated September 29, 2023 at 2 (stating that the Exchange needs to provide a more detailed explanation of how it plans on removing CMO orders without leaking information, as according to the commenter, the originator of the CMO order is still going to need to be notified that its order was removed). lotter on DSK11XQN23PROD with NOTICES1 42 See VerDate Sep<11>2014 17:35 Dec 08, 2023 Jkt 262001 the exchange while the CMO order is on the order book.44 The Exchange replied to these comments with its own comment letter and by filing partial Amendment No. 1.45 The Exchange states, among other things, that CMO is not intended to benefit market makers at the expense of large incoming institutional investors’ orders, and instead, it is designed to encourage market participants, including institutional investors, to rest and seek midpoint liquidity on the Exchange, rather than off-exchange, by reducing the probability of trading when market prices are likely to shift.46 The Exchange further states that there is ample precedent for order types like CMO.47 The Exchange refutes the comments that it would be novel for the exchange to alter orders without sending corresponding messages of such alterations.48 Further, the Exchange states that precedents exists for the Commission permitting an exchange to utilize proprietary data to determine the behavior of one of its order types.49 Regarding the information leakage concerns, the Exchange states that when the CMO fails execute, it does not reveal the details of the incoming order, including its size, its time-in-force, or whether the order is still available after 44 See IEX Letter at 3–4. The commenter provides the following example where a CMO to buy 100 shares is resting at the midpoint, when the NBBO for that stock is at $10.00–$11.00. If the exchange reports an execution, to which the user is not a party, for 100 shares at $10.00, the CMO user can deduce that an order in that symbol larger than its own has arrived (otherwise, it would have traded with the order). It can also compare the size of the execution to the size of its CMO order to determine that the order has a remaining size that has not been executed on the exchange. The commenter further states that the user will receive this information as quickly as it could have received a cancelation message and that this is information that no other participant is in a position to have (other than possibly another CMO user with an order in the same symbol at the same time). See id. 45 See PHLX Response Letter, supra note 7, at 2. 46 See id. at 1. 47 See id. at 1–2 (stating, as an example, that minimum quantity orders also enable users to avoid trading with incoming orders when they are too small and NYSE Arca Inc.’s Passive Liquidity Select Order, which the Commission approved, did not interact with an incoming order that was larger than the size of the Passive Liquidity Select Order). The commenter also states that IEX’s D-Limit and D-Peg order types avoid trading when its system believes that market prices will shift via a complex formula that attempts to predict pending price movements. See id. at 1. 48 See id. at 3 (stating that the Commission already permits the Exchange and Nasdaq to engage in the same process of informal order removal and resubmission without dissemination of cancellation messages, for example, in handling Managed Midpoint Peg Post-Only Orders and Midpoint Extended Life Order and Imbalance-Only order types). 49 See id. at 3 (providing examples of Nasdaq’s late Limit on Close and Imbalance-Only order types). PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 the trade, and any information to be gleaned from this scenario would be knowable to all market participants at the time it is published on the SIP and the other market data feeds.50 Therefore, the Exchange states CMO user would have no information advantage over the rest of the market.51 The Commission is instituting proceedings to allow for additional analysis of, and input from commenters with respect to, the consistency of the proposal, as modified by partial Amendment No. 1, with sections 6(b)(5) 52 and 6(b)(8) of the Exchange Act.53 section 6(b)(5) of the Exchange Act requires that the rules of a national securities exchange be designed, among other things, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest, and not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers. section 6(b)(8) of the Exchange Act requires that the rules of a national securities exchange not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. III. Procedure: Request for Written Comments The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with sections 6(b)(5) and section 6(b)(8), or any other provision of the Exchange Act, and the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b–4, any request for an opportunity to make an oral presentation.54 50 See id. id. 52 15 U.S.C. 78f(b)(5). 53 15 U.S.C. 78f(b)(8). 54 Section 19(b)(2) of the Act, as amended by the Securities Acts Amendments of 1975, Public Law 94–29 (June 4, 1975), grants the Commission flexibility to determine what type of proceeding— either oral or notice and opportunity for written comments—is appropriate for consideration of a particular proposal by a self-regulatory organization. See Securities Acts Amendments of 1975, Senate Comm. on Banking, Housing & Urban 51 See E:\FR\FM\11DEN1.SGM 11DEN1 Federal Register / Vol. 88, No. 236 / Monday, December 11, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change should be approved or disapproved by January 2, 2024. Any person who wishes to file a rebuttal to any other person’s submission must file that rebuttal by January 16, 2024. Comments may be submitted by any of the following methods: Rebuttal comments should be submitted by January 16, 2024. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.55 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–27064 Filed 12–8–23; 8:45 am] BILLING CODE 8011–01–P Electronic Comments SMALL BUSINESS ADMINISTRATION • 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– PHLX–2023–40 on the subject line. [Disaster Declaration #20012 and #20013; New York Disaster Number NY–20000] Paper Comments ACTION: • 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–PHLX–2023–40. 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 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to file number SR–PHLX–2023–40 and should be submitted on or before January 2, 2024. SUMMARY: Administrative Declaration of a Disaster for the State of New York Small Business Administration. Notice. AGENCY: This is a notice of an Administrative declaration of a disaster for the State of New York dated 12/04/ 2023. Incident: Severe Storms and Flooding. Incident Period: 09/28/2023 through 09/30/2023. DATES: Issued on 12/04/2023. Physical Loan Application Deadline Date: 02/02/2024. Economic Injury (EIDL) Loan Application Deadline Date: 09/04/2024. ADDRESSES: Visit the MySBA Loan Portal at https://lending.sba.gov to apply for a disaster assistance loan. FOR FURTHER INFORMATION CONTACT: Alan Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205–6734. SUPPLEMENTARY INFORMATION: Notice is hereby given that as a result of the Administrator’s disaster declaration, applications for disaster loans may be submitted online using the MySBA Loan Portal https://lending.sba.gov or other locally announced locations. Please contact the SBA disaster assistance customer service center by email at disastercustomerservice@ sba.gov or by phone at 1–800–659–2955 for further assistance. The following areas have been determined to be adversely affected by the disaster: Primary Counties: Kings, Nassau Contiguous Counties: New York: New York, Queens, Richmond, Suffolk The Interest Rates are: Percent For Physical Damage: Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). VerDate Sep<11>2014 18:44 Dec 08, 2023 Jkt 262001 55 17 PO 00000 CFR 200.30–3(a)(57). Frm 00102 Fmt 4703 Sfmt 4703 85967 Percent Homeowners with Credit Available Elsewhere ...................... Homeowners without Credit Available Elsewhere .............. Businesses with Credit Available Elsewhere ...................... Businesses without Credit Available Elsewhere .............. Non-Profit Organizations with Credit Available Elsewhere ... Non-Profit Organizations without Credit Available Elsewhere ..................................... For Economic Injury: Business and Small Agricultural Cooperatives without Credit Available Elsewhere .............. Non-Profit Organizations without Credit Available Elsewhere ..................................... 5.000 2.500 8.000 4.000 2.375 2.375 4.000 2.375 The number assigned to this disaster for physical damage is 200126 and for economic injury is 200130. The States which received an EIDL Declaration are Connecticut, New Jersey, New York. (Catalog of Federal Domestic Assistance Number 59008) Isabella Guzman, Administrator. [FR Doc. 2023–27054 Filed 12–8–23; 8:45 am] BILLING CODE 8026–09–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Docket No. 2020–0488] Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Survey of Unmanned-Aircraft-Systems Operators Federal Aviation Administration (FAA), DOT. ACTION: Notice and request for comments. AGENCY: In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The Federal Register Notice with a 60-day comment period soliciting comments on the following collection of information was published on October 02, 2022. The collection involves a survey of uncrewed-aircraft-systems (UAS) operators within the United States. The information gathered through the survey’s questionnaire on flight behavior and fleet characteristics is used to inform UAS rule making and SUMMARY: E:\FR\FM\11DEN1.SGM 11DEN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 88, Number 236 (Monday, December 11, 2023)]
[Notices]
[Pages 85964-85967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27064]



[[Page 85964]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99083; File No. SR-PHLX-2023-40]


Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing 
of Partial Amendment No. 1 and Order Instituting Proceedings To 
Determine Whether To Approve or Disapprove a Proposed Rule Change, as 
Modified by Partial Amendment No. 1, To Amend Equity 4, Rules 3301A and 
3301B To Establish New ``Contra Midpoint Only'' and ``Contra Midpoint 
Only With Post-Only'' Order Types and To Make Other Corresponding 
Changes to the Rulebook

December 5, 2023.
    On August 28, 2023, Nasdaq PHLX LLC (``Phlx'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``Commission''), 
pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule 
change to amend Equity 4, Rules 3301A and 3301B \3\ to establish new 
``Contra Midpoint Only'' (``CMO'') and ``Contra Midpoint Only with 
Post-Only'' (``CMO+PO'') order types and to make other corresponding 
changes to the Phlx Rulebook. The proposed rule change was published 
for comment in the Federal Register on September 8, 2023.\4\ On 
September 26, 2023, pursuant to section 19(b)(2) of the Exchange 
Act,\5\ the Commission designated a longer period within which to 
approve the proposed rule change, disapprove the proposed rule change, 
or institute proceedings to determine whether to disapprove the 
proposed rule change.\6\ On November 2, 2023, the Exchange filed 
partial Amendment No.1 to the proposed rule change.\7\ The Commission 
has received three comment letters on the proposed rule change, and the 
Exchange submitted a response to comments when it filed partial 
Amendment No. 1.\8\
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ References herein to Phlx Rules in the 3000 Series shall 
mean rules in Phlx Equity 4.
    \4\ See Securities Exchange Act Release No. 98280 (Sept. 1, 
2023), 88 FR 62129 (``Notice'').
    \5\ 15 U.S.C. 78s(b)(2).
    \6\ See Securities Exchange Act Release No. 98528, 88 FR 67846 
(Oct. 2, 2023). The Commission designated December 7, 2023, as the 
date by which the Commission shall approve or disapprove, or 
institute proceedings to determine whether to approve or disapprove, 
the proposed rule change.
    \7\ In partial Amendment No. 1, the Exchange (i) modified an 
example that illustrates the operation of the CMO order type; (ii) 
added in Rule 3301A(7)(B) that a user may enter a CMO using OUCH, 
RASH, and FIX; and (iii) added in Rule 3301A(8) that FIX, in 
addition to OUCH and RASH, may be used to enter a CMO+PO. When it 
submitted Amendment No. 1, the Exchange also submitted it as a 
comment letter to the filing. See Letter from Brett Kitt, Associate 
Vice President and Principal and Associate General Counsel, Nasdaq, 
Inc., to Vanessa Countryman, Secretary, Commission, dated November 
2, 2023 (``PHLX Response Letter''), available at: https://www.sec.gov/comments/sr-phlx-2023-40/srphlx202340-293100-713082.pdf.
    \8\ Comments and the Exchange's response to comments are 
available at: https://www.sec.gov/comments/sr-phlx-2023-40/srphlx202340-299539-740902.pdf.
---------------------------------------------------------------------------

    The Commission is publishing this notice to solicit comments on the 
proposed rule change, as modified by partial Amendment No. 1, from 
interested persons and is instituting proceedings pursuant to section 
19(b)(2)(B) of the Act \9\ to determine whether to approve or 
disapprove the proposed rule change, as modified by partial Amendment 
No. 1.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

I. Description of the Proposal, as Modified by Partial Amendment No. 1

    The Exchange proposes to amend Equity 4, Rule 3301A(b) to establish 
``CMO'' and ``CMO+PO'' as new order types on the Exchange. The Exchange 
states that a CMO is a Non-Displayed Order Type priced at the midpoint 
between the National Best Bid and the National Best Offer (the ``NBBO'' 
and the midpoint of the NBBO, the ``Midpoint'').\10\ The Exchange 
states it will remove a CMO resting on the Order Book upon entry of 
certain types of incoming Orders that are likely to result in 
unfavorable executions, including because the incoming Orders are 
likely to indicate price movements that would be more favorable to the 
resting CMO user than the prevailing price.\11\ According to the 
Exchange, the CMO provides protection to the resting CMO user against 
executions at the prevailing Midpoint price that the user may deem 
unfavorable.\12\ The Exchange states that once the System removes a CMO 
under these circumstances, it would submit a new CMO at the then-
current Midpoint price automatically on behalf of the user.\13\ The 
Exchange states that when it removes a CMO from its Order Book, it 
would not send a cancellation message, thus limiting the potential for 
information leakage.\14\
---------------------------------------------------------------------------

    \10\ See Notice, supra note 4, at 62130.
    \11\ See id.
    \12\ See id.
    \13\ See id.
    \14\ See id. at 62130 n.4.
---------------------------------------------------------------------------

    According to the Exchange, a CMO+PO is like a CMO, except that it 
provides for ``post-only'' functionality, meaning that like a Midpoint 
Peg Post-Only Order,\15\ a CMO+PO will execute upon entry only in 
circumstances where economically beneficial to the party entering the 
Order.\16\ The Exchange states that the CMO and CMO+PO are Order Types 
that it has developed to provide market participants with options to 
make their own determinations on various trade-offs that exist when 
executing their strategies in the markets (e.g., the amount of 
liquidity they can obtain in the near term versus the potential for 
market movement relative to the Midpoint price).\17\ The Exchange 
states that some participants may value avoiding immediate executions 
in order to wait for a better price while others would rather obtain 
the liquidity instead of waiting.\18\
---------------------------------------------------------------------------

    \15\ See id. at 62130. See also Rule 3301A(b)(6).
    \16\ See Notice, supra note 4, at 62130.
    \17\ See id.
    \18\ See id.
---------------------------------------------------------------------------

    The Exchange states that a CMO is a non-displayed Order Type with 
the Midpoint Pegging Attribute that will be priced and ranked in time 
order at the Midpoint and that a user may cancel a CMO at any time. 
According to the Exchange, the System will remove a CMO Order 
automatically if a CMO is resting at the Midpoint on the Exchange Book, 
an incoming Order is priced through the price of the CMO, the CMO would 
otherwise trade against the incoming Order,\19\ and one or more of the 
following conditions apply, which the Exchange anticipates are 
indicative of a pending price shift in favor of the CMO user: the 
incoming Order is Displayed and its size is greater than that of the 
resting CMO; \20\ or the incoming Order is not Displayed, it is priced 
at or better than the far side of the NBBO, and its size is greater 
than that of the resting CMO.\21\
---------------------------------------------------------------------------

    \19\ See id. The Exchange states, as an example, that the 
incoming Order is filled fully by resting interest with price/time 
priority ahead of the resting CMO Order, then the System will not 
remove the CMO Order from the Order Book. See id. at 62130 n.9.
    \20\ See id. at 62130. The Exchange states that in this 
scenario, the Exchange observes that the incoming Order has the 
potential to cause the NBBO to shift, such that removal of the CMO 
will be preferable to allowing the CMO to execute at a Midpoint 
price that may be stale. The System will then automatically re-
submit a new CMO on behalf of the user after removing the original 
CMO. See id.
    \21\ See id. at 62130. The Exchange states that in this 
scenario, the incoming Order may not cause a shift in the NBBO, due 
to its hidden nature, but because it is priced aggressively at the 
far side of the NBBO, it still offers a CMO user an opportunity for 
an execution that is more favorable than the prevailing midpoint 
price. CMO functionality enables a participant to avail itself of 
this opportunity. See id.
---------------------------------------------------------------------------

    The Exchange provides the following two examples to illustrate the 
concept. In the first example, the National Best Bid is $10.00 and the 
National Best

[[Page 85965]]

Offer is $11.00 and Participant A enters Order 1, which is a CMO to buy 
100 shares of X that is priced at $10.50, the midpoint of the NBBO. 
While Order 1 is resting on the Exchange Book, Participant B enters 
Order 2, which is a Displayed Order to sell 200 shares of X at $10.40. 
The Exchange explains that in this instance, Order 2 is larger than 
Order 1 and that if Order 1 was not a CMO and it had executed against 
Order 2 at $10.50, then Participant A would have missed out on the 
favorable impact of Order 2 shifting the midpoint of the NBBO lower to 
$10.20. The Exchange states that, to avoid the outcome, the System 
would remove Order 1 from the Exchange Book and resubmit it as Order 3, 
priced at $10.20. If Participant C then enters Order 4 to sell 100 
shares of X at $10.20, Order 3 would execute against Order 4 at $10.20, 
thus providing Participant A with price improvement.\22\
---------------------------------------------------------------------------

    \22\ See id. at 62130-31.
---------------------------------------------------------------------------

    The Exchange provides a second example, in which the National Best 
Bid is $10.00 and the National Best Offer is $11.00, and Participant A 
again enters Order 1, which is a CMO to buy 100 shares of X that is 
priced at $10.50. While Order 1 is resting on the Exchange Book, 
Participant B enters Order 2, which this time is a Non-Displayed Order 
to sell 200 shares at $10.00. CMO functionality would activate for 
Order 1 both because Order 2 is larger than Order 1 and because Order 2 
is priced at the far side of the NBBO. The System would resubmit Order 
1 as Order 3, priced at $10.50. Order 3 would then execute at $10.00, 
again providing Participant A with price improvement relative to the 
prevailing midpoint price. The Exchange states it would permit 
Participant A to receive the benefit of Order 2, which is priced 
aggressively at the far side of the NBBO, even though Order 2 is a non-
displayed Order that would not shift the NBBO or the midpoint.\23\
---------------------------------------------------------------------------

    \23\ See PHLX Response Letter, supra note 7, at 7. The Exchange 
further states there also may be scenarios where use of CMO might 
not ultimately benefit market participants, such as where the amount 
of price improvement associated with use of CMO is outweighed by the 
fee a participant would incur when its CMO is deemed to remove 
liquidity from the Exchange Book. See Notice, supra note 4, at 62131 
n.10.
---------------------------------------------------------------------------

    Additionally, the Exchange states that because a CMO inherently 
possesses the Midpoint Pegging Attribute, it will behave in accordance 
with Rule 3301B(d), which governs Orders with Midpoint Pegging.\24\ 
According to the Exchange, a user may enter a CMO (and a CMO+PO) using 
RASH or OUCH or FIX.\25\ Unlike other Orders with the Midpoint Pegging 
Attribute, however, CMOs cannot be assigned a Routing Attribute, such 
that provisions of the Midpoint Pegging Rule that govern Midpoint 
Pegged Orders with Routing do not apply to CMOs.\26\ The Exchange 
states that a CMO will not be accepted outside of Market Hours, and a 
CMO remaining unexecuted at the end of Market Hours will be cancelled 
by the System.\27\ Further, the Exchange states that the System will 
cancel CMOs when a trading halt is declared, and the System will reject 
any CMOs entered during a trading halt.\28\
---------------------------------------------------------------------------

    \24\ See Notice, supra note 4, at 62131.
    \25\ See PHLX Response Letter, supra note 7, at 7-8.
    \26\ See Notice, supra note 4, at 62131.
    \27\ See id.
    \28\ See id. In addition, the Exchange also proposes to amend 
the Exchange's Rule governing Midpoint Pegging, at Rule 3301B(d), to 
add language stating that ``Orders with Midpoint Pegging will be 
cancelled by the System when a trading halt is declared, and any 
Orders with Midpoint Pegging entered during a trading halt will be 
rejected.'' The Exchange states that such language exists in a 
corresponding rule of the rulebook of the Exchange's sister 
exchange, the Nasdaq Stock Market, LLC (Nasdaq Rule 4703(d)), but 
was mistakenly omitted from Rule 3301B(d). See id. at 62131 n.13.
---------------------------------------------------------------------------

    A CMO user may opt to apply the Minimum Quantity, Trade Now, or 
Discretion Order Attributes and a Time-In-Force to a CMO.\29\ The 
Exchange states that CMO+PO will possess all the characteristics and 
attributes of a CMO, as well as those of a Managed Midpoint Peg Post-
Only Order, as set forth in Rule 3301A(b)(6), with certain 
exceptions.\30\ Like a Midpoint Peg Post-Only Order, a CMO+PO is a Non-
Displayed Order that is priced at the Midpoint and executes upon entry 
only in circumstances where economically beneficial to the party 
entering the Order, and the price of the CMO+PO will be updated 
repeatedly to equal the midpoint between the NBBO, provided, however, 
that the CMO+PO will not be priced higher (lower) than its limit 
price.\31\ According to the Exchange, if the Midpoint between the NBBO 
becomes higher than (lower than) the limit price of a CMO+PO to buy 
(sell), the price of the CMO+PO will stop updating and the CMO+PO will 
post (with a Non-Display Attribute) at its limit price, but will resume 
updating if the Midpoint becomes lower than (higher than) the limit 
price of the CMO+PO to buy (sell).\32\ Similarly, if a CMO+PO is on the 
Exchange Book and subsequently the NBBO is crossed, or if there is no 
NBBO, the Order will be removed from the Exchange Book and will be re-
entered at the new Midpoint once there is a valid NBBO that is not 
crossed.\33\ The Exchange states that CMO+PO receives a new timestamp 
each time its price is changed, and CMO+POs will be cancelled if they 
remain on the Exchange Book at the end of Market Hours.\34\
---------------------------------------------------------------------------

    \29\ See id. at 62131.
    \30\ See id.
    \31\ See id. Also like a Midpoint Peg Post-Only Order, a CMO+PO 
may not possess the Discretion or Routing Order Attributes, and a 
CMO+PO must be priced at more than $1 per share. See id.
    \32\ See id.
    \33\ See id.
    \34\ See id. According to the Exchange, CMO+PO entered prior to 
the beginning of Market Hours will be rejected, and a CMO+PO will be 
cancelled by the System when a trading halt is declared, and any 
CMO+PO entered during a trading halt will be rejected. See id. at 
62131 n.14.
---------------------------------------------------------------------------

    The Exchange states that CMO and CMO+PO executions will be reported 
to Securities Information Processors and provided in the Exchange's 
proprietary data feed without any new or special indication.\35\ 
Further, as part of the surveillance the Exchange currently performs, 
CMOs and CMO+POs will be subject to real-time surveillance to determine 
if they are being abused by market participants.\36\ The Exchange 
states that it plans to implement CMO and CMO+PO within thirty days 
after Commission approval of the proposal and will make the CMO and 
CMO+PO available to all members and to all securities upon 
implementation.\37\ The Exchange plans to propose a fee structure for 
the CMO and CMO+PO in a subsequent Commission rule filing.\38\
---------------------------------------------------------------------------

    \35\ See id. at 62132.
    \36\ See id. The Exchange states that it is committed to 
determining whether there is opportunity or prevalence of behavior 
that is inconsistent with normal risk management behavior. The 
Exchange further states that 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 CMO or CMO+PO may be subject to 
penalties or other participant requirements to discourage such 
behavior, should it occur. See id. In addition, the Exchange states 
punitive fees or other participant requirements tied to CMO and 
CMO+PO usage will be implemented by rule filing under section 19(b) 
of the Act, 15 U.S.C. 78s(b), should the Exchange determine that 
they are necessary to maintain a fair and orderly market. See id. at 
62132 n.15.
    \37\ See id. at 62132. The Exchange states it will announce the 
implementation date by Equity Trader Alert. See id.
    \38\ See id. at 62132 n.16.
---------------------------------------------------------------------------

II. Proceedings To Determine Whether To Approve or Disapprove SR-PHLX-
2023-40, as Modified by Partial Amendment No. 1, and Grounds for 
Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to section 
19(b)(2)(B) of the Act \39\ to determine whether the proposed rule 
change, as modified by partial Amendment No.1, should be approved or 
disapproved.

[[Page 85966]]

Institution of proceedings is appropriate at this time in view of the 
legal and policy issues raised by the proposed rule change and the 
comments received thereon. Institution of proceedings does not indicate 
that the Commission has reached any conclusions with respect to any of 
the issues involved. Rather, the Commission seeks and encourages 
interested persons to provide additional comment on the proposed rule 
change, as modified by partial Amendment No. 1, to inform the 
Commission's analysis of whether to approve or disapprove the proposed 
rule change, as modified by partial Amendment No. 1.
---------------------------------------------------------------------------

    \39\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

    Pursuant to section 19(b)(2)(B) of the Act,\40\ the Commission is 
providing notice of the grounds for possible disapproval under 
consideration. As noted above, the Commission received three comments 
on the proposal and the Exchange simultaneously filed a response to 
comments along with partial Amendment No. 1.\41\ Of note, one commenter 
raises unfair discrimination concerns, stating that the commenter is 
not aware of another exchange order type that would discriminate 
against orders to access liquidity in the specific way the CMO and 
CMO+PO order types do and that CMO would introduce a new form of 
segmentation without any indication that investors would stand to 
benefit.\42\ Another commenter states that it is troubled by the 
asymmetric information provided to the CMO order sender, as non-public 
information is provided to the CMO order sender when the CMO order is 
removed that no other participant will have.\43\ Similarly, another 
commenter states that CMO provides ample opportunities for information 
leakage, particularly when a user is able to detect the presence of a 
large order by observing executions on the exchange while the CMO order 
is on the order book.\44\
---------------------------------------------------------------------------

    \40\ Id.
    \41\ See supra note 7.
    \42\ See Letter from John Ramsay, Chief Market Policy Officer, 
Investors Exchange LLC, dated September 28, 2023 (``IEX Letter'') at 
2-3.
    \43\ See Letter from Joanna Mallers, Secretary, FIA Principal 
Traders Group, dated November 17, 2023 at 2. This commenter states 
that the originator of the CMO order knows that the contra side 
order is larger than the CMO order because trades occurred that 
would have executed against the resting CMO order had the size of 
the contra side order been equal to or smaller than the resting CMO 
order's size. See id. The commenter expresses concern that CMO order 
sender could discern that the opposing, unexecuted order exists, and 
profit from that information without the need to trade with it. See 
id. See also Letter from Joseph Saluzzi, Partner, Themis Trading 
LLC, dated September 29, 2023 at 2 (stating that the Exchange needs 
to provide a more detailed explanation of how it plans on removing 
CMO orders without leaking information, as according to the 
commenter, the originator of the CMO order is still going to need to 
be notified that its order was removed).
    \44\ See IEX Letter at 3-4. The commenter provides the following 
example where a CMO to buy 100 shares is resting at the midpoint, 
when the NBBO for that stock is at $10.00-$11.00. If the exchange 
reports an execution, to which the user is not a party, for 100 
shares at $10.00, the CMO user can deduce that an order in that 
symbol larger than its own has arrived (otherwise, it would have 
traded with the order). It can also compare the size of the 
execution to the size of its CMO order to determine that the order 
has a remaining size that has not been executed on the exchange. The 
commenter further states that the user will receive this information 
as quickly as it could have received a cancelation message and that 
this is information that no other participant is in a position to 
have (other than possibly another CMO user with an order in the same 
symbol at the same time). See id.
---------------------------------------------------------------------------

    The Exchange replied to these comments with its own comment letter 
and by filing partial Amendment No. 1.\45\ The Exchange states, among 
other things, that CMO is not intended to benefit market makers at the 
expense of large incoming institutional investors' orders, and instead, 
it is designed to encourage market participants, including 
institutional investors, to rest and seek midpoint liquidity on the 
Exchange, rather than off-exchange, by reducing the probability of 
trading when market prices are likely to shift.\46\ The Exchange 
further states that there is ample precedent for order types like 
CMO.\47\ The Exchange refutes the comments that it would be novel for 
the exchange to alter orders without sending corresponding messages of 
such alterations.\48\ Further, the Exchange states that precedents 
exists for the Commission permitting an exchange to utilize proprietary 
data to determine the behavior of one of its order types.\49\ Regarding 
the information leakage concerns, the Exchange states that when the CMO 
fails execute, it does not reveal the details of the incoming order, 
including its size, its time-in-force, or whether the order is still 
available after the trade, and any information to be gleaned from this 
scenario would be knowable to all market participants at the time it is 
published on the SIP and the other market data feeds.\50\ Therefore, 
the Exchange states CMO user would have no information advantage over 
the rest of the market.\51\
---------------------------------------------------------------------------

    \45\ See PHLX Response Letter, supra note 7, at 2.
    \46\ See id. at 1.
    \47\ See id. at 1-2 (stating, as an example, that minimum 
quantity orders also enable users to avoid trading with incoming 
orders when they are too small and NYSE Arca Inc.'s Passive 
Liquidity Select Order, which the Commission approved, did not 
interact with an incoming order that was larger than the size of the 
Passive Liquidity Select Order). The commenter also states that 
IEX's D-Limit and D-Peg order types avoid trading when its system 
believes that market prices will shift via a complex formula that 
attempts to predict pending price movements. See id. at 1.
    \48\ See id. at 3 (stating that the Commission already permits 
the Exchange and Nasdaq to engage in the same process of informal 
order removal and resubmission without dissemination of cancellation 
messages, for example, in handling Managed Midpoint Peg Post-Only 
Orders and Midpoint Extended Life Order and Imbalance-Only order 
types).
    \49\ See id. at 3 (providing examples of Nasdaq's late Limit on 
Close and Imbalance-Only order types).
    \50\ See id.
    \51\ See id.
---------------------------------------------------------------------------

    The Commission is instituting proceedings to allow for additional 
analysis of, and input from commenters with respect to, the consistency 
of the proposal, as modified by partial Amendment No. 1, with sections 
6(b)(5) \52\ and 6(b)(8) of the Exchange Act.\53\ section 6(b)(5) of 
the Exchange Act requires that the rules of a national securities 
exchange be designed, among other things, to promote just and equitable 
principles of trade, to remove impediments to and perfect the mechanism 
of a free and open market and a national market system and, in general, 
to protect investors and the public interest, and not be designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers. section 6(b)(8) of the Exchange Act requires that the rules of 
a national securities exchange not impose any burden on competition 
that is not necessary or appropriate in furtherance of the purposes of 
the Act.
---------------------------------------------------------------------------

    \52\ 15 U.S.C. 78f(b)(5).
    \53\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

III. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
views of interested persons concerning whether the proposal is 
consistent with sections 6(b)(5) and section 6(b)(8), or any other 
provision of the Exchange Act, and the rules and regulations 
thereunder. Although there do not appear to be any issues relevant to 
approval or disapproval that would be facilitated by an oral 
presentation of views, data, and arguments, the Commission will 
consider, pursuant to Rule 19b-4, any request for an opportunity to 
make an oral presentation.\54\
---------------------------------------------------------------------------

    \54\ Section 19(b)(2) of the Act, as amended by the Securities 
Acts Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by a self-regulatory 
organization. See Securities Acts Amendments of 1975, Senate Comm. 
on Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).

---------------------------------------------------------------------------

[[Page 85967]]

    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposed rule change should be approved 
or disapproved by January 2, 2024. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
January 16, 2024.
    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-PHLX-2023-40 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-PHLX-2023-40. 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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-PHLX-2023-40 and should be 
submitted on or before January 2, 2024. Rebuttal comments should be 
submitted by January 16, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\55\
---------------------------------------------------------------------------

    \55\ 17 CFR 200.30-3(a)(57).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-27064 Filed 12-8-23; 8:45 am]
BILLING CODE 8011-01-P

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