[Federal Register Volume 86, Number 191 (Wednesday, October 6, 2021)]
[Notices]
[Pages 55663-55664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21768]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93217]


Order Granting Application of Investors Exchange LLC for a 
Limited Exemption From Rule 602 of Regulation NMS for Its Retail Price 
Improvement Program

September 30, 2021.
    By letter dated September 29, 2021 (the ``Application''),\1\ 
Investors Exchange LLC (``IEX'' or ``Exchange'') requests a limited 
exemption from the requirements of Rule 602 of Regulation NMS \2\ (the 
``Quote Rule'') for its planned dissemination of a Retail Liquidity 
Identifier (``RLI'') to advertise the presence of non-displayed Retail 
Liquidity Provider (``RLP'') midpoint peg orders pursuant to recently 
approved enhancements to the Exchange's Retail Price Improvement 
Program (the ``Program'').\3\
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    \1\ See Letter from Claudia Crowley, Chief Regulatory Officer, 
IEX, to David Shillman, Associate Director, Division of Trading and 
Markets, Commission, dated September 29, 2021.
    \2\ 17 CFR 242.602.
    \3\ See Securities Exchange Act Release No. 92398 (July 13, 
2021), 86 FR 38166 (July 19, 2021) (SR-IEX-2021-06) (Notice of 
Filing of Amendment No. 1 and Order Granting Accelerated Approval of 
a Proposed Rule Change, as Modified by Amendment No. 1, to Revise 
the Definitions of Retail Orders and Retail Liquidity Provider 
Orders and Disseminate a Retail Liquidity Identifier under the IEX 
Retail Price Improvement Program) (``Order''). Under the amended 
Program, an IEX member that qualifies as a Retail Member 
Organization (``RMO'') can submit agency or riskless principal 
orders that reflect the trading interest of a natural person by 
using a ``Retail order'' modifier. See IEX Rule 11.190(b)(15) and 
its Supplementary Material .01 (defining ``Retail order''). Such 
Retail orders are only eligible to execute at the midpoint price of 
the national best bid and national best offer or better. In turn, 
any IEX member is able to provide price improvement to Retail orders 
through RLP orders. While RLP orders will only execute against 
Retail orders, Retail orders can execute against other types of 
available liquidity at the midpoint price or better (e.g., regular 
midpoint peg orders or odd lot orders). See IEX Rule 11.190(b)(14) 
(defining ``Retail Liquidity Provider Order'').
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    In order to attract Retail orders to the exchange, IEX will notify 
market participants of the presence of RLP orders in a security by 
disseminating a RLI through the appropriate securities information 
processor and the Exchange's proprietary market data feeds when RLP 
order interest, aggregated to form at least one round lot for a 
particular security, is available on IEX, provided that the RLP order 
interest is resting at the midpoint of the national best bid and 
national best offer (``Midpoint Price'').\4\ The RLI will indicate the 
symbol for a particular security and the side (buy, sell, or buy and 
sell) of the RLP interest, but not its explicit price or size.\5\
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    \4\ In addition, the Exchange will only disseminate an RLI when 
RLP interest is priced at least $0.001 better than the national best 
bid or national best offer. Because RLP orders are midpoint peg 
orders, they will be priced at least $0.001 better than the national 
best bid or national best offer except with respect to: (i) Locked 
or crossed markets and (ii) sub-dollar quotes when the security's 
spread is less than $0.002. See Securities Exchange Act Release No. 
91523 (April 9, 2021), 86 FR 19912, 19915 (notice of IEX's 
proposal).
    \5\ The RLI will not disseminate an explicit size, but only the 
availability of at least one round lot of RLP interest; the actual 
available size of RLP interest may be more.
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    When the Commission adopted the Quote Rule (then Rule 11Ac1-1) it 
sought to facilitate the establishment of a comprehensive composite 
quotation system across market centers as an integral component of a 
national market system.\6\ The Quote Rule requires national securities 
exchanges and national securities associations to, among other things, 
collect, process, and make available to vendors the best bid, the best 
offer, and aggregate quotation sizes for each subject security listed 
or admitted to unlisted trading privileges that is communicated on any 
national securities exchange by any responsible broker or dealer.\7\ 
Regulation NMS defines a ``bid'' or ``offer'' as the bid price or the 
offer price communicated by a member of a national securities exchange 
or member of a national securities association to any broker or dealer, 
or to any customer, at which it is willing to buy or sell one or more 
round lots of an NMS security, as either principal or agent, but shall 
not include indications of interest.
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    \6\ See Securities Exchange Act Release No. 14415 (January 26, 
1978), 43 FR 4342 (February 1, 1978). Regulation NMS redesignated 
Rule 11Ac1-1 as Regulation NMS Rule 602, but left the substance of 
the rule largely intact. See Securities Exchange Act Release No. 
51808 (June 9, 2005), 70 FR 37496, 37570 (June 29, 2005) (File No. 
S7-10-04).
    \7\ See 17 CFR 242.602(a)(1). The Quote Rule further provides 
that nothing shall preclude any national securities exchange from 
making available to vendors indications of interest or bids and 
offers for a subject security at any time such exchange is not 
required to do so. See 17 CFR 242.602(a)(4).
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    Other exchanges that operate retail liquidity programs also 
disseminate retail liquidity identifiers, though those other exchange 
programs typically allow the equivalent to RLP orders to rest non-
displayed at prices that improve the displayed quote by one or more 
subpenny increments and do not require such orders to be pegged to the 
Midpoint Price.\8\ IEX's Program is different because RLP orders can 
only be midpoint peg orders, which can only rest at the Midpoint 
Price.\9\ Thus, unlike the retail liquidity identifiers disseminated by 
other exchanges, IEX's RLI will covey a specific ascertainable price 
(i.e., the Midpoint Price).
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    \8\ See, e.g., NYSE Arca Rule 7.33-E (Retail Liquidity Program).
    \9\ While the RLI will not include an explicit size, it will 
indicate the presence of at least one round lot of midpoint 
interest.
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    IEX's RLI will serve a similar purpose to the identifiers currently 
disseminated by other exchanges, as it will inform market participants 
that route retail order flow about the availability of price 
improvement opportunities for retail orders. And, for IEX's Program 
specifically, the RLI will indicate the availability of midpoint priced 
interest, which can benefit retail investors by offering to them an 
opportunity for potentially substantial price improvement. IEX's 
Program, like other exchanges' retail liquidity programs, allows for 
the limited segmentation of retail order flow for the express purpose 
of allowing IEX to compete with other exchanges and off-exchange market 
makers to provide price improvement to retail customers, thus ensuring 
that retail customers can benefit from the better prices that liquidity 
providers are willing to give their orders.\10\
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    \10\ See Order, supra note 2, 86 FR at 38168-69.
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    Under Rule 602(d) of Regulation NMS, the Commission may exempt from 
the provisions of the Quote Rule, either unconditionally or on 
specified terms and conditions, a national securities exchange (among 
others) if it determines

[[Page 55664]]

that such exemption is consistent with the public interest, the 
protection of investors and the removal of impediments to and 
perfection of the mechanism of a national market system.\11\
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    \11\ 17 CFR 242.602(d).
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    The Commission hereby grants the Exchange a limited exemption from 
the Quote Rule to operate the Program and disseminate the RLI without 
having to include RLP interest in IEX's best bid or offer. For the 
reasons discussed below, the Commission has determined that it is 
consistent with the public interest, the protection of investors and 
the removal of impediments to and perfection of the mechanism of a 
national market system to provide a limited exemption from Rule 602 of 
Regulation NMS with respect to IEX's Program.
    In light of the opportunity for retail customers to obtain 
potentially substantial price improvement at midpoint prices under 
IEX's Program, and in the interests of facilitating the ability of IEX 
to compete to be able to provide that opportunity to Retail orders in 
the limited context of the Program, providing a limited exemption 
should promote competition between exchanges and between IEX and off-
exchange market makers.
    Broad dissemination of the RLI through the appropriate securities 
information processor should benefit retail customers by providing 
broker-dealers that route Retail orders with limited supplemental 
information about the availability of price improvement opportunities 
for Retail orders under the Program.\12\ To the extent the RLI is 
successful in attracting Retail orders to the Program, the increased 
competition should benefit retail customers by providing a mechanism 
through which they can receive the better prices that liquidity 
providers are willing to give their orders. This exemption also should 
benefit market participants that seek the opportunity to interact 
directly with Retail orders, as any liquidity provider may submit RLP 
interest to provide better prices to retail customers on the Exchange. 
Quotations that Rule 602 requires to be included in an exchange's best 
bid and offer are used to establish the national best bid and offer for 
an NMS stock and are eligible for protection against trade-throughs 
under Rule 611 of Regulation NMS.\13\ Such quotations therefore must be 
accessible to all market participants on terms that are not unfair or 
unreasonably discriminatory. In contrast, access to RLP interest is 
limited to Retail orders because many market participants may be 
willing to offer liquidity to retail investors at better prices than 
they would be willing to offer to all market participants. RLP interest 
thereby can benefit retail investors by giving them an opportunity to 
receive better prices on exchanges, but it is unsuitable for other 
purposes, including establishing a national best bid and offer and 
eligibility for Rule 611 protection.
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    \12\ The RLI will not reveal the presence of other midpoint 
interest. Non-displayed midpoint interest could be present on IEX 
outside of the Program, and Retail orders will be able to trade with 
that interest.
    \13\ See 17 CFR 242.611.
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    Accordingly, it is ordered, pursuant to Rule 602(d) of Regulation 
NMS, that IEX is exempt from Rule 602 of Regulation NMS with respect to 
IEX's Program specifically concerning the dissemination of the RLI to 
advertise the presence of RLP interest under the Program without 
including RLP interest in the Exchange's quotation. This exemption is 
conditioned on the Exchange continuing to conduct the Program 
substantially as described in the Exchange's request for exemptive 
relief and the current applicable Exchange rules, including the 
dissemination of the RLI through the appropriate securities information 
processor. Any changes thereto may cause the Commission to reconsider 
this exemption. The foregoing exemption is subject to modification or 
revocation at any time if the Commission determines that such action is 
necessary or appropriate in furtherance of the purposes of the Exchange 
Act.

    For the Commission, by the Division of Trading and Markets 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(28).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-21768 Filed 10-5-21; 8:45 am]
BILLING CODE 8011-01-P