82 FR 21860 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 4702 (Order Types) and Rule 4703 (Order Attributes)

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 89 (May 10, 2017)

[Federal Register Volume 82, Number 89 (Wednesday, May 10, 2017)]
[Notices]
[Pages 21860-21863]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-09422]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80593; File No. SR-NASDAQ-2017-042]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Amend Rule 4702 (Order Types) and Rule 4703 (Order Attributes)

May 4, 2017.
    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 April 21, 2017, The NASDAQ Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I and II below, which Items have been prepared by the Exchange. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 4702 (Order Types) and Rule 
4703 (Order Attributes) to specify the behavior of Midpoint Peg Post-
Only Orders and Orders with Midpoint Pegging after initial entry and 
posting to the Nasdaq Book when the market is crossed, or when there is 
no best bid and/or offer. Nasdaq also proposes to change certain 
references to cancelling or rejecting orders in Rule 4702 and Rule 
4703.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaq.cchwallstreet.com, at the principal office of 
the Exchange, and at the Commission's Public Reference Room.

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

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

[[Page 21861]]

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

1. Purpose
    Nasdaq proposes to amend Rule 4702 (Order Types) and Rule 4703 
(Order Attributes) to specify the behavior of Midpoint Peg Post-Only 
Orders and Orders with Midpoint Pegging that are cancelled or rejected 
when the market is crossed, or when there is no best bid and/or offer 
after initial entry and posting to the Nasdaq Book. Nasdaq also 
proposes to change certain references to cancelling or rejecting orders 
in Rule 4702 and Rule 4703.
    Rule 4702(b)(5) describes the Midpoint Peg Post-Only Order. Among 
other things, the Rule states that the Midpoint Peg Post-Only Order is 
an Order Type with a Non-Display Order Attribute that is priced at the 
midpoint between the National Best Bid and Offer (``NBBO'') and that 
will execute upon entry only in circumstances where economically 
beneficial to the party entering the Order. The Midpoint Peg Post-Only 
Order is available during Market Hours only.
    Rule 4703(d) describes the Pegging Order Attribute, including 
Midpoint Pegging. Pegging is an Order Attribute that allows an Order to 
have its price automatically set with reference to the NBBO. Midpoint 
Pegging means Pegging with reference to the midpoint between the Inside 
Bid and the Inside Offer (the ``Midpoint'').\3\ An Order with Midpoint 
Pegging is not displayed.
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    \3\ Thus, if the Inside Bid was $11 and the Inside Offer was 
$11.06, an Order with Midpoint Pegging would be priced at $11.03.
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    Nasdaq recently proposed changes to Midpoint Peg Post-Only Orders 
and Orders with Midpoint Pegging, which were approved by the SEC on 
November 10, 2016.\4\ With this change, if the NBBO is crossed or if 
there is no NBBO, any existing Midpoint Peg Post-Only Order would be 
cancelled and any new Midpoint Peg Post-Only Order would be rejected. 
Similarly, if the Inside Bid and Inside Offer are crossed, any existing 
Order with Midpoint Pegging would be cancelled and any new Order with 
Midpoint Pegging would be rejected.\5\
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    \4\ See Securities Exchange Act Release No. 79290 (November 10, 
2016), 81 FR 81184 (November 17, 2016) (SR-NASDAQ-2016-111).
    \5\ Id.
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    Nasdaq now proposes to add language to Rule 4702(b)(5)(B) to 
specify the treatment of a Midpoint Peg Post-Only Order after initial 
entry and posting to the Nasdaq Book when the NBBO is subsequently 
crossed, or when there is subsequently no NBBO. Specifically, for 
Midpoint Peg Post-Only Orders entered through RASH, QIX or FIX, if the 
Order is on the Nasdaq Book and subsequently the NBBO is crossed, or if 
there is subsequently no NBBO, the Order will be removed from the 
Nasdaq Book and will be re-entered at the new midpoint once there is a 
valid NBBO that is not crossed.
    Similarly, Nasdaq proposes to add language to Rule 4703(d) to 
specify the treatment of Orders with Midpoint Pegging after initial 
entry and posting to the Nasdaq Book when the Inside Bid and Inside 
Offer are subsequently crossed, or if there is subsequently no Inside 
Bid and/or Inside Offer. Specifically, for Orders with Midpoint Pegging 
entered through RASH, QIX or FIX, if the Order is on the Nasdaq Book 
and subsequently the Inside Bid and Inside Offer become crossed, or if 
there is no Inside Bid and/or Inside Offer, the Order will be removed 
from the Nasdaq Book and will be re-entered at the new midpoint once 
there is a valid Inside Bid and Inside Offer that is not crossed.
    As stated in the filing proposing the new functionality for 
Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging, Nasdaq 
believes that the midpoint of a crossed market, or where there is no 
NBBO, is not a clear and accurate indication of a valid price, and may 
produce sub-optimal execution prices for members and investors.\6\ 
Prior to this change, Midpoint Peg Post-Only Orders entered through 
RASH, QIX or FIX would have been nevertheless repriced to the midpoint 
of the NBBO if the NBBO subsequently became crossed, or would have been 
cancelled if there was subsequently no NBBO. Nasdaq is proposing to re-
enter such Orders at the new midpoint once there is a NBBO that is not 
crossed because the new NBBO is indicative of a valid price.
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    \6\ See Securities Exchange Act Release No. 78908 (September 22, 
2016), 81 FR 66702 (September 28, 2016) (SR-NASDAQ-2016-111).
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    Similarly, prior to this change, Orders with Midpoint Pegging 
entered through RASH, QIX or FIX would have been nevertheless repriced 
to the midpoint of the Inside Bid and Inside Offer if the Inside Bid 
and Inside Offer subsequently became crossed, or would have been 
cancelled if there was subsequently no Inside Bid and/or Inside Offer. 
As with the change to Midpoint Peg Post-Only Orders, Nasdaq is 
therefore proposing to re-enter such Orders at the new midpoint once 
there is an Inside Bid and Inside Offer that is not crossed because the 
new Inside Bid and Inside Offer is indicative of a valid price. Nasdaq 
is proposing to re-enter Orders submitted through RASH, QIX or FIX 
because Nasdaq typically assumes a more active role in managing the 
order flow submitted by users of these protocols, and this 
functionality reflects the order flow management practices of these 
participants.
    While Nasdaq is only proposing to adopt this re-entry functionality 
for Orders that are entered through RASH, QIX or FIX, Nasdaq believes 
that it is appropriate to also modify the treatment of Midpoint Peg 
Post-Only Orders and Orders with Midpoint Pegging entered through OUCH 
or FLITE where the NBBO subsequently becomes crossed, or there is 
subsequently no NBBO or Inside Bid and/or Offer. Accordingly, Nasdaq is 
also proposing to amend Rule 4702(b)(5)(B) to state that if, after a 
Midpoint Peg Post-Only Order entered through OUCH or FLITE is posted to 
the Nasdaq Book, the NBBO changes so that the NBBO is crossed, or there 
is no NBBO, the Midpoint Peg Post-Only Order will be cancelled back to 
the Participant. Similarly, Nasdaq will amend Rule 4703(d) to state 
that if, after an Order with Midpoint Pegging is entered through OUCH 
or FLITE, the Inside Bid and Inside Offer changes so that the Midpoint 
is lower than (higher than) the price of an Order to buy (sell), the 
Inside Bid and Inside Offer are crossed or if there is no Inside Bid 
and/or Inside Offer, the Pegged Order will be cancelled back to the 
Participant.\7\
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    \7\ Nasdaq is proposing to change the reference in this sentence 
from NBBO to Inside Bid and Inside Offer to make this sentence more 
consistent with the rest of Rule 4703, which uses the concept of the 
Inside Bid and Insider Offer rather than the NBBO.
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    Finally, Nasdaq is proposing to change certain instances in Rule 
4702 and Rule 4703 that describe the cancellation or rejection of an 
Order. For example, Rule 4702(b)(5)(A) currently states that, if the 
NBBO is locked when a Midpoint Peg Post-Only Order is entered, the 
Midpoint Peg Post-Only Order will be priced at the locking price, and 
if the NBBO is crossed or if there is no NBBO, the Order will be 
cancelled or rejected. Rule 4702(b)(5)(A) also provides that a Midpoint 
Peg Post-Only Order that would be assigned a price of $1 or less per 
share will be rejected or cancelled, as applicable. Similarly, Rule 
4703(d) states that, in the case of an Order with Midpoint Pegging, if 
the Inside Bid and Inside Offer are locked, the Order will be priced at 
the locking price, and if the Inside Bid and Inside Offer are crossed 
or if there is no Inside Bid and/or Inside Offer, the Order will be 
cancelled or rejected.
    Nasdaq proposes to change references to cancelling or rejecting an 
order to ``not accepting'' an Order. Depending on

[[Page 21862]]

the context, the reference to rejecting an order may have one of two 
meanings.\8\ Nasdaq believes that changing references from rejecting or 
cancelling an Order to not accepting an Order is appropriate because 
the proposed language resolves the ambiguity that may arise when 
referring to an Order rejection, and is sufficiently broad to encompass 
the contexts in which the concept of Order rejection or cancellation 
may be used.
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    \8\ Specifically, an Order may be referred to as ``rejected'' if 
it is not initially accepted by the customer-facing Nasdaq 
interface. Alternatively, after an Order has been initially accepted 
by the customer-facing interface, and is being transmitted from one 
Nasdaq interface to another, it may be ``rejected'' if the Order is 
not accepted by another part of the Nasdaq system for various 
reasons.
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    This proposed change supplements the recently-approved changes to 
Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging, and the 
resulting modifications to Nasdaq systems.\9\
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    \9\ See Securities Exchange Act Release No. 79290 (November 10, 
2016), 81 FR 81184 (November 17, 2016) (SR-NASDAQ-2016-111). Nasdaq 
initially proposed to implement the new functionality for Midpoint 
Peg Post-Only Orders and Orders with Midpoint Pegging on November 
21, 2016. See Equity Trader Alert #2016-291. However, following 
testing, Nasdaq has decided to delay the implementation of this new 
functionality to provide additional time for systems testing. The 
new functionality shall be implemented no later than May 31, 2017. 
See Securities Exchange Act Release No. 80045 (February 15, 2017), 
82 FR 11389 (February 22, 2017) (SR-NASDAQ-2017-013) (extending the 
implementation date to no later than March 31, 2017); Securities 
Exchange Act Release No. 80391 (April 6, 2017), 82 FR 17714 (April 
12, 2017) (SR-NASDAQ-2017-034) (extending the implementation date to 
no later than May 31, 2017).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\10\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\11\ in particular, in that it is designed to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general to protect investors and the public 
interest.
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    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
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    The proposed change is consistent with the Act because it 
supplements the recently-approved changes to Midpoint Peg Post-Only 
Orders and Orders with Midpoint Pegging and the resulting modifications 
to Nasdaq systems, and reflects the Exchange's belief that the midpoint 
of a crossed market, or where there is no NBBO or Inside Bid and/or 
Inside Offer, is not a clear and accurate indication of a valid price, 
and may produce sub-optimal execution prices for members and investors. 
The proposal adopts a functionality for Midpoint Peg Post-Only Orders 
and Orders with Midpoint Pegging after initial entry and posting to the 
Nasdaq Book where the NBBO or Inside Bid and Inside Offer subsequently 
becomes crossed, or where there is subsequently no NBBO or Inside Bid 
and/or Inside Offer, that reflects the order flow management practices 
of the participants that use those protocols, e.g., re-submitting such 
Orders that are entered through RASH, QIX or FIX, and cancelling such 
Orders that are submitted through OUCH or FLITE.
    The proposal to replace certain references to rejecting or 
cancelling an order to ``not accepting'' an order is consistent with 
the Act because the proposed language encompasses the contexts in which 
the concept of order rejection or cancellation may be used and resolves 
any ambiguity that may arise when referring to an order rejection.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The proposed change supplements 
the recently-approved changes to Midpoint Peg Post-Only Orders and 
Orders with Midpoint Pegging and the resulting modifications to Nasdaq 
systems by adopting a functionality for Midpoint Peg Post-Only Orders 
and Orders with Midpoint Pegging after initial entry and posting to the 
Nasdaq Book where the NBBO subsequently becomes crossed, or where there 
is subsequently no NBBO or Inside Bid and/or Inside Offer, that 
reflects the order flow management practices of the participants that 
use those protocols. Moreover, the use of Exchange Order types and 
attributes is voluntary, and no member is required to use any specific 
Order type or attribute or even to use any Exchange Order type or 
attribute or any Exchange functionality at all. If an Exchange member 
believes for any reason that the proposed rule change will be 
detrimental, that perceived detriment can be avoided by choosing not to 
enter or interact with the Order type modified by this proposed rule 
change. Finally, the proposal will apply equally to all Orders that 
meet its criteria.

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

    No written comments were either solicited or received.

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

    Because the foregoing proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6) thereunder.\12\
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    \12\ 17 CFR 240.19b-4(f)(6). As required under Rule 19b-
4(f)(6)(iii), the Exchange provided the Commission with written 
notice of its intent to file the proposed rule change, along with a 
brief description and the text of the proposed rule change, at least 
five business days prior to the date of filing of the proposed rule 
change, or such shorter time as designated by the Commission.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Act \13\ normally does not become operative for 30 days after the date 
of its filing. However, Rule 19b-4(f)(6)(iii) \14\ permits the 
Commission to designate a shorter time if such action is consistent 
with the protection of investors and the public interest. The Exchange 
has asked the Commission to waive the 30-day operative delay. The 
Exchange states that the proposal supplements the recently-approved 
changes to Midpoint Peg Post-Only Orders and Orders with Midpoint 
Pegging, and that it intends to implement these previously-approved 
changes shortly (and no later than May 31, 2017).\15\ Waiver of the 30-
day operative delay would allow the Exchange to implement the 
previously-approved changes concurrently with the supplemental changes 
in this proposal. The Commission believes that waiver of the 30-day 
operative delay is consistent with the protection of investors and the 
public interest. Therefore, the Commission hereby waives the 30-day 
operative delay and designates the proposed rule change to be operative 
upon filing.\16\
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    \13\ 17 CFR 240.19b-4(f)(6).
    \14\ 17 CFR 240.19b-4(f)(6)(iii).
    \15\ See supra note 9.
    \16\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings

[[Page 21863]]

to determine whether the proposed rule change should be approved or 
disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NASDAQ-2017-042 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2017-042. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NASDAQ-2017-042 and should 
be submitted on or before May 31, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\17\
Eduardo A. Aleman,
Assistant Secretary.
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    \17\ 17 CFR 200.30-3(a)(12).
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[FR Doc. 2017-09422 Filed 5-9-17; 8:45 am]
 BILLING CODE 8011-01-P