[Federal Register Volume 88, Number 18 (Friday, January 27, 2023)]
[Proposed Rules]
[Pages 5440-5556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27644]



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Vol. 88

Friday,

No. 18

January 27, 2023

Part II





Securities and Exchange Commission





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17 CFR Parts 240 and 242





Regulation Best Execution; Proposed Rule

  Federal Register / Vol. 88 , No. 18 / Friday, January 27, 2023 / 
Proposed Rules  

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 240 and 242

[Release No. 34-96496; File No. S7-32-22]
RIN 3235-AN24


Regulation Best Execution

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
proposing new rules under the Securities Exchange Act of 1934 
(``Exchange Act'') relating to a broker-dealer's duty of best 
execution. Proposed Regulation Best Execution would enhance the 
existing regulatory framework concerning the duty of best execution by 
requiring detailed policies and procedures for all broker-dealers and 
more robust policies and procedures for broker-dealers engaging in 
certain conflicted transactions with retail customers, as well as 
related review and documentation requirements.

DATES: Comments should be received on or before March 31, 2023.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/regulatory-actions/how-to-submit-comments); or
     Send an email to sec.gov">rule-comments@sec.gov. Please include 
File Number S7-32-22 on the subject line.

Paper Comments

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

All submissions should refer to File Number S7-32-22. 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 of submission. The Commission will post all 
comments on the Commission's website (https://www.sec.gov/rules/proposed.shtml). Comments are also 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. Operating conditions may limit access to the 
Commission's Public Reference Room. All comments received will be 
posted without change. Persons submitting comments are cautioned that 
the Commission does not redact or edit personal identifying information 
from comment submissions. You should submit only information that you 
wish to make available publicly.
    Studies, memoranda, or other substantive items may be added by the 
Commission or staff to the comment file during this rulemaking. A 
notification of the inclusion in the comment file of any materials will 
be made available on the Commission's website. To ensure direct 
electronic receipt of such notifications, sign up through the ``Stay 
Connected'' option at www.sec.gov to receive notifications by email.

FOR FURTHER INFORMATION CONTACT: David Dimitrious, Senior Special 
Counsel and Arisa Tinaves Kettig, Special Counsel at (202) 551-5500, 
Office of Market Supervision, Division of Trading and Markets, 
Securities and Exchange Commission, 100 F Street NE, Washington, DC 
20549.

SUPPLEMENTARY INFORMATION: The Commission is proposing to add the 
following new rules under the Exchange Act: (1) 17 CFR 242.1100 (Rule 
1100 of Regulation Best Execution); (2) 17 CFR 242.1101 (Rule 1101 of 
Regulation Best Execution); and (3) 17 CFR 242.1102 (Rule 1102 of 
Regulation Best Execution). The Commission is also proposing to amend 
17 CFR 240.17a-4 (Rule 17a-4 under the Exchange Act).

Table of Contents

I. Introduction
II. Duty of Best Execution
    A. Current Regulatory Framework
    B. Prior Commission Statements
    C. FINRA and MSRB Best Execution Rules
III. Existing Order Handling Practices and Overview of Proposed 
Regulation Best Execution
    A. Existing Order Handling Practices
    1. General Broker-Dealer Practices
    2. Order Handling Conflicts of Interest
    3. Crypto Asset Securities
    B. Overview of Proposed Regulation Best Execution
IV. Discussion of Proposed Regulation Best Execution
    A. Proposed Rule 1100--The Best Execution Standard
    B. Proposed Rule 1101(a)--Best Execution Policies and Procedures
    1. Proposed Rule 1101(a)(1)--Framework for Compliance With the 
Best Execution Standard
    2. Proposed Rule 1101(a)(2)--Best Market Determination
    C. Proposed Rule 1101(b)--Policies and Procedures and 
Documentation for Conflicted Transactions
    1. Proposed Rules 1101(b)(1) and (2)--Policies and Procedures 
for Conflicted Transactions
    2. Proposed Rule 1101(b)(3)--Documentation for Conflicted 
Transactions
    3. Application of Proposed Rule 1101(b) to NMS Stock Market 
Conflicts of Interest
    4. Application of Proposed Rule 1101(b) to the Options Market
    5. Application of Proposed Rule 1101(b) to the Corporate and 
Municipal Bond Markets and Government Securities Markets
    D. Proposed Rule 1101(c)--Regular Review of Execution Quality
    E. Proposed Rule 1101(d)--Introducing Brokers
    1. Definition of Introducing Broker and Executing Broker
    2. Review of Executing Broker's Execution Quality
    F. Proposed Rule 1102--Annual Report
    G. Recordkeeping Requirements Under Rule 17a-4
V. Economic Analysis
    A. Introduction
    B. Baseline
    1. Current Legal and Regulatory Framework
    2. Best Execution Review Processes
    3. Description of Markets and Broker-Dealer Order Handling and 
Execution Practices
    4. Broker-Dealer Services and Revenue
    C. Economic Effects and Effects on Efficiency, Competition, and 
Capital Formation
    1. Benefits
    2. Costs
    3. Efficiency, Competition, and Capital Formation
    D. Reasonable Alternatives
    1. SEC Adopts FINRA Rule 5310 and MSRB Rule G-18 Best Execution 
Rules
    2. Require Order Execution Quality Disclosure for Other Asset 
Classes
    3. Utilize FINRA and MSRB Approach to Introducing Broker
    4. Ban or Restrict Off-Exchange PFOF
    5. Require Broker-Dealers To Utilize Best Execution Committees
    6. Require Order-by-Order Documentation for Conflicted or All 
Transactions
    7. Staggered Compliance Dates
    E. Request for Comments
VI. Paperwork Reduction Act
    A. Summary of Collection of Information
    1. Required Policies and Procedures and Related Obligations
    2. Annual Report
    B. Proposed Use of Information
    1. Required Policies and Procedures and Related Obligations
    2. Annual Report
    C. Respondents
    D. Total Initial and Annual Reporting and Recordkeeping Burdens
    1. Required Policies and Procedures and Related Obligations
    2. Annual Report
    E. Total Paperwork Burden
    F. Collection of Information Is Mandatory
    G. Confidentiality of Responses to Collection of Information
    H. Retention Period for Recordkeeping Requirements
    I. Request for Comment
VII. Consideration of Impact on the Economy

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VIII. Initial Regulatory Flexibility Act Analysis
    A. Reasons for and Objectives of the Proposed Action
    B. Legal Basis
    C. Small Entities Subject to the Proposed Rule
    D. Projected Compliance Requirements of the Proposed Rule for 
Small Entities
    1. Required Policies and Procedures and Related Obligations
    2. Annual Report
    E. Duplicative, Overlapping, or Conflicting Federal Rules
    F. Significant Alternatives
    1. Adopt FINRA Rule 5310 and MSRB Rule G-18 Concerning Best 
Execution
    2. Require Order Execution Quality Disclosure for Other Asset 
Classes
    3. Define ``Introducing Broker'' To Include Those Entities That 
Qualify for Relief Under FINRA and MSRB Rules
    4. Ban or Restrict Off-Exchange Payment for Order Flow
    5. Require Broker-Dealers To Utilize Best Execution Committees
    6. Require Order-by-Order Documentation for Conflicted or All 
Transactions
    7. Staggered Compliance Dates
    G. General Request for Comment
Statutory Authority and Text of the Proposed Rule

I. Introduction

    The duty of best execution requires a broker-dealer to execute 
customers' trades at the most favorable terms reasonably available 
under the circumstances,\1\ and customers benefit from broker-dealers' 
robust considerations of execution opportunities that may provide 
customers with the most favorable terms. Accordingly, promoting the 
best execution of customer orders is of fundamental importance to 
investors and the markets, and is an important aspect of investor 
protection. The Financial Industry Regulatory Authority, Inc. 
(``FINRA''), a national securities association, and the Municipal 
Securities Rulemaking Board (``MSRB'') currently have rules and 
guidance directly addressing the duty of best execution. The Commission 
has made statements concerning the duty over the years, but has never 
itself established a rule addressing best execution. While the 
Commission believes the existing regulatory framework concerning the 
duty of best execution has helped broker-dealers fulfill their duty to 
their customers, the Commission believes this regulatory framework can 
be made more effective. In particular, while FINRA and the MSRB have 
established best execution rules and provided guidance on how broker-
dealers should achieve best execution in a variety of contexts, and 
generally require broker-dealers to have procedures for compliance with 
relevant laws and rules, the Commission believes it is appropriate to 
propose its own comprehensive and detailed best execution requirements. 
The Commission understands that, currently, broker-dealers' best 
execution policies and procedures, and the documentation relating to 
their best execution practices, may vary. However, as described in 
section III.A below, the Commission believes that customers would 
benefit from consistently robust best execution practices by broker-
dealers, and the execution of retail customer orders by broker-dealers 
that have certain order handling conflicts of interest warrants 
heightened attention by those broker-dealers.\2\
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    \1\ See infra note 21 and accompanying text.
    \2\ See infra Section V.A (describing the ``principal--agent'' 
problem that may exist between a broker-dealer and its customer and 
how that can be exacerbated by other conflicts of interest).
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    The Commission believes that having Commission rules providing a 
policies and procedures-based best execution framework, along with 
regular reviews and related documentation, would help broker-dealers 
maintain consistently robust best execution practices and result in 
vigorous efforts by broker-dealers to achieve best execution, including 
in situations where broker-dealers have order handling conflicts of 
interest with retail customers. The Commission also believes that 
detailed policies and procedures, regular reviews, and related 
documentations would allow broker-dealers to effectively assess their 
best execution practices and assist the Commission and self-regulatory 
organizations (``SROs'') to effectively examine and enforce broker-
dealers' compliance with the proposed rules.
    Proposed Regulation Best Execution would establish through a 
Commission rule a best execution standard for broker-dealers.\3\ 
Proposed Regulation Best Execution would also specifically require 
broker-dealers to establish, maintain, and enforce written policies and 
procedures reasonably designed to comply with that best execution 
standard. Those policies and procedures would be required to address: 
(1) how the broker-dealer will comply with the proposed standard of 
best execution, including by identifying material potential liquidity 
sources, incorporating material potential liquidity sources into its 
order handling practices, and ensuring that the broker-dealer can 
efficiently access each source, and (2) how the broker-dealer will 
determine the best market for customer orders received, including by 
assessing reasonably accessible and timely pricing information and 
opportunities for price improvement.
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    \3\ The proposed best execution standard is consistent with the 
best execution standards set forth in FINRA and MSRB rules.
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    In addition, for retail customer transactions that present 
conflicts of interest, such as payment for order flow or 
internalization, that could create incentives for a broker-dealer to be 
less diligent in its search for better executions and potentially 
result in broker-dealers not providing best execution to customer 
orders, proposed Regulation Best Execution would require the broker-
dealer's policies and procedures to address how it will comply with the 
best execution standard in light of such conflicts, including how it 
would assess a broader range of markets than it would for non-
conflicted transactions. Proposed Regulation Best Execution would also 
require broker-dealers to document their compliance with the best 
execution standard and the basis for their determinations that best 
execution would be achieved through conflicted transactions.
    Proposed Regulation Best Execution would also require broker-
dealers to review the execution quality of their customer orders at 
least quarterly, compare it with the execution quality that might have 
been obtained from other markets, and revise their best execution 
policies and procedures accordingly.
    Proposed Regulation Best Execution would exempt from specified 
requirements under the proposed rules an introducing broker (as defined 
in the proposed rules) that establishes, maintains, and enforces 
policies and procedures that require it to regularly review the 
execution quality obtained from its executing broker, compares that 
execution quality with the execution quality it might have obtained 
from other executing brokers, and revises its order handling practices 
accordingly.
    Finally, proposed Regulation Best Execution would require broker-
dealers to review and assess the overall effectiveness of their best 
execution policies and procedures, including their order handling 
practices, on at least an annual basis, and prepare a report detailing 
the results of such review and assessment that would be presented to 
the broker-dealer's board of directors (or equivalent governing body).
    The Commission recognizes the importance of providing a broker-
dealer flexibility to exercise its expertise and judgment when 
executing customer orders, and proposed Regulation Best Execution 
primarily would be a policies and procedures-based rule, similar to

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the Order Protection Rule,\4\ the Risk Management Controls for Brokers 
or Dealers with Market Access Rule,\5\ and Regulation Systems 
Compliance and Integrity.\6\ Under proposed Regulation Best Execution, 
a broker-dealer's failure to achieve the most favorable price possible 
under prevailing market conditions (``most favorable price'') for 
customer orders would be part of the consideration of whether the 
broker-dealer's policies and procedures are reasonably designed and 
whether the broker-dealer is enforcing its policies and procedures. A 
broker-dealer's failure to achieve the most favorable price for 
customer orders would not necessarily be a violation of the proposed 
best execution standard, because it may not be the result of a failure 
by the broker-dealer to use reasonable diligence to ascertain the best 
market and to buy or sell in such market so that the customer receives 
the most favorable price.\7\ However, a failure to establish and 
maintain reasonably designed policies and procedures applicable to all 
customer orders, or a failure to enforce those policies and procedures, 
would be a violation of the policies and procedures requirement under 
proposed Regulation Best Execution.
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    \4\ See 17 CFR 242.611.
    \5\ See 17 CFR 240.15c3-5.
    \6\ See 17 CFR 242.1001.
    \7\ See also MSRB Rule G-18.01 (``A failure to have actually 
obtained the most favorable price possible will not necessarily mean 
that the dealer failed to use reasonable diligence.''). Whether a 
broker-dealer has met the proposed best execution standard would 
turn on an objective assessment of the facts and circumstances at 
the time of the broker-dealer's transactions for or with the 
customer (and not in hindsight).
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II. Duty of Best Execution

A. Current Regulatory Framework

    A broker-dealer has a legal duty to seek best execution of customer 
orders. The duty of best execution predates the Federal securities laws 
and is derived from an implied representation that a broker-dealer 
makes to its customers.\8\ The duty is established from ``common law 
agency obligations of undivided loyalty and reasonable care that an 
agent owes to [its] principal.'' \9\ This obligation requires that a 
``broker-dealer seek to obtain for its customer orders the most 
favorable terms reasonably available under the circumstances.'' \10\ 
While there is no Commission rule or standard addressing a broker-
dealer's duty of best execution, the duty is addressed in FINRA and 
MSRB rules, as described in sections II.C and IV below.\11\
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    \8\ See, e.g., Newton v. Merrill, Lynch, Pierce, Fenner & Smith, 
Inc., 135 F.3d 266, 270 (3d Cir.), cert. denied, 525 U.S. 811 
(1998).
    \9\ See id.
    \10\ See id. See also Securities Exchange Act Release No. 37619A 
(Sept. 6, 1996), 61 FR 48290 (Sept. 12, 1996) (``Order Execution 
Obligations Adopting Release''). A Report of the Special Study of 
Securities Markets stated that, according to an NASD District 
Business Conduct Committee in a 1952 proceeding, ``[t]he integrity 
of the industry can be maintained only if the fundamental principle 
that a customer should at all times get the best available price 
which can reasonably be obtained for him is followed.'' See SEC, 
Report of the Special Study of Securities Markets, H.R. Doc. No. 95, 
88th Cong., 1st Sess. Pt. II, 624 (1963) (``Special Study''), 
available at https://www.sechistorical.org/collection/papers/1960/1963_SSMkt_Chapter_07_2.pdf.
    \11\ The Commission also oversees investment advisers, which 
have a similar duty. As part of its duty of care, an investment 
adviser has a duty to seek best execution of a client's transactions 
where the adviser has responsibility to select broker-dealers to 
execute client trades, and the Commission previously has described 
the contours of that duty. See Commission Interpretation Regarding 
Standard of Conduct for Investment Advisers, Advisers Act Release 
No. 5248 (June 5, 2019), 84 FR 33669, 33674-75 (July 12, 2019). In 
addition, the Commission has brought a variety of enforcement 
actions against registered investment advisers in connection with 
their alleged failure to satisfy their duty to seek best execution. 
See, e.g., In the Matter of Aventura Capital Management, LLC, 
Investment Advisers Act Release No. 6103 (Sept. 6, 2022) (settled 
action); In the Matter of Madison Avenue Securities, LLC, Investment 
Advisers Act Release No. 6036 (May 31, 2022) (settled action).
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    The Commission is proposing Regulation Best Execution pursuant to, 
among other provisions, sections 11A and 15 of the Exchange Act.\12\ In 
section 11A, Congress identified key national market system objectives, 
including the practicability of brokers executing investors' orders in 
the best market.\13\ The Commission has rulemaking authority to further 
the section 11A objectives.\14\ Separately, section 15 of the Exchange 
Act provides authority for rules that are reasonably designed to 
prevent fraudulent acts or practices. Specifically, section 15(c)(2)(A) 
provides that no broker or dealer may make use of the mails or any 
means or instrumentality of interstate commerce to effect any 
transaction in, or to induce or attempt to induce the purchase or sale 
of, any security (other than an exempted security \15\ or commercial 
paper, bankers' acceptances, or commercial bills) otherwise than on a 
national securities exchange of which it is a member, in connection 
with which such broker or dealer engages in any fraudulent, deceptive, 
or manipulative act or practice, or makes any fictitious quotation.\16\ 
Section 15(c)(2)(B) prohibits brokers, dealers, and municipal 
securities dealers from engaging in such activity in ``any municipal 
security.'' \17\ Section 15(c)(2)(C) prohibits government securities 
brokers and government securities dealers from engaging in such 
activity in any ``government security.'' \18\ Section 15(c)(2)(D) 
authorizes the Commission to adopt rules that define, and prescribe 
means reasonably designed to prevent, such acts and practices as are 
fraudulent, deceptive, or manipulative and such quotations as are 
fictitious.\19\ When a broker-dealer violates its duty of best 
execution, it could be in violation of section 15(c) of the Exchange 
Act.\20\
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    \12\ 15 U.S.C. 78k-1; 15 U.S.C. 78o.
    \13\ 15 U.S.C. 78k-1(a)(1)(C).
    \14\ 15 U.S.C. 78k-1(a)(2).
    \15\ See 15 U.S.C. 78c(a)(12) (defining the term ``exempted 
security'' to include, among other things, government securities and 
municipal securities, as defined in sections 3(a)(42) and 3(a)(29) 
of the Exchange Act, respectively).
    \16\ 15 U.S.C. 78o(c)(2)(A).
    \17\ See 15 U.S.C. 78o(c)(2)(B). See also 15 U.S.C. 78c(a)(29) 
(defining municipal securities).
    \18\ See 15 U.S.C. 78o(c)(2)(C). See also 15 U.S.C. 78c(a)(42) 
(defining government securities).
    \19\ 15 U.S.C. 78o(c)(2)(D).
    \20\ See, e.g., In the Matter of Knight Securities L.P., 
Securities Exchange Act Release No. 50867 (Dec. 16, 2004) (settled 
action) (finding that the broker-dealer defrauded its institutional 
customers by failing to provide best execution in violation of 
section 15(c) of the Exchange Act).
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B. Prior Commission Statements

    The Commission has made statements concerning the duty of best 
execution in various contexts over the years. The following are some of 
the statements that the Commission has made with respect to the duty of 
best execution. The Commission solicits comment below, however, on 
whether any of these prior statements should be revised in light of the 
proposed rules.
    The Commission has previously stated that the duty of best 
execution requires a broker-dealer to execute customers' trades at the 
most favorable terms reasonably available under the circumstances, 
i.e., at the best reasonably available price.\21\ The Commission has 
also recognized that price is a critical concern for investors.\22\ In 
addition, the

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Commission has described a non-exhaustive list of factors that may be 
relevant to broker-dealers' best execution analysis. These factors 
include the size of the order, speed of execution, clearing costs, the 
trading characteristics of the security involved, the availability of 
accurate information affecting choices as to the most favorable market 
center for execution and the availability of technological aids to 
process such information, and the cost and difficulty associated with 
achieving an execution in a particular market center.\23\
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    \21\ Securities Exchange Act Release No. 51808 (June 9, 2005), 
70 FR 37496, 37538 (June 29, 2005) (``Regulation NMS Adopting 
Release''). See also Geman v. SEC, 334 F.3d 1183, 1186 (10th Cir. 
2003) (``[T]he duty of best execution requires that a broker-dealer 
seek to obtain for its customer orders the most favorable terms 
reasonably available under the circumstances.'') (quoting Newton, 
supra note 8, 135 F.3d at 270); Kurz v. Fidelity Management & 
Research Co., 556 F.3d 639, 640 (7th Cir. 2009) (describing the 
``duty of best execution'' as ``getting the optimal combination of 
price, speed, and liquidity for a securities trade'').
    \22\ See Securities Exchange Act Release No. 43590 (Nov. 17, 
2000), 65 FR 75414, 75418 (Dec. 1, 2000) (``Order Execution and 
Routing Practice Release'') (``The Commission strongly believes, 
however, that most investors care a great deal about the quality of 
prices at which their orders are executed, and that an opportunity 
for more vigorous competition among market participants to provide 
the best quality of execution will enhance the efficiency of the 
national market system.'').
    \23\ See id., at 75422; Regulation NMS Adopting Release, supra 
note 21, 70 FR 37538.
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    Over the years, the Commission has stated the need for broker-
dealers to continue to modernize their best execution practices. For 
example, the Commission has stated that broker-dealer practices for 
achieving best execution, including the data, technology, and types of 
markets they access, must constantly be updated as markets evolve.\24\ 
In particular, the Commission has stated that the scope of the duty of 
best execution must evolve as changes occur in the market that give 
rise to improved executions for customer orders, including 
opportunities to trade at more advantageous prices.\25\ As these 
changes occur, a broker-dealer's procedures for seeking best execution 
for its customer orders also must be modified to consider price 
opportunities that become reasonably available.\26\ In doing so, 
broker-dealers must take into account price improvement opportunities 
\27\ and whether different markets may be more suitable for different 
types of orders or particular securities.\28\
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    \24\ See Regulation NMS Adopting Release, supra note 21, 70 FR 
at 37538; Order Execution Obligations Adopting Release, supra note 
10, 61 FR at 48322-23.
    \25\ See Order Execution Obligations Adopting Release, supra 
note 10, 61 FR 48323.
    \26\ See id.; Regulation NMS Adopting Release, supra note 21, 70 
FR 37516 (stating that broker-dealers must examine their procedures 
for seeking best execution in light of market and technology changes 
and modify those practices if necessary to enable their customers to 
obtain the best reasonably available prices).
    \27\ See Order Execution Obligations Adopting Release, supra 
note 10, 61 FR 48323 n.357 (stating that price improvement means the 
difference between execution price and the best quotes prevailing in 
the market at the time the order arrived at the market or market 
maker, and that any evaluation of price improvement opportunities 
would have to consider not only the extent to which orders are 
executed at prices better than the prevailing quotes, but also the 
extent to which orders are executed at inferior prices).
    \28\ See id.
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    In addition, the Commission has expressed concerns regarding 
interpositioning and the duty of best execution. Interpositioning can 
occur when a broker-dealer places a third party between itself and the 
best market for executing a customer trade in a manner that results in 
a customer not receiving the best available market price.\29\ 
Interpositioning can violate the broker-dealer's duty of best execution 
when it results in unnecessary transaction costs at the expense of the 
customer.\30\
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    \29\ See Edward Sinclair, et al., Securities Exchange Act 
Release No. 9115, 1971 WL 120487 (Mar. 24, 1971) (Comm'n op.), 
aff'd, 444 F2d. 399 (2d Cir. 1971) (order clerk in OTC department of 
broker-dealer interposed a broker-dealer between his firm and best 
available market price in return for split of profits with the 
interposed broker); H.C. Keister & Co., et al., Securities Exchange 
Act Release No. 7988, 1966 WL 84120 (Nov. 1, 1966) (Comm'n op.) (in 
exchange for payments, trader for a large broker-dealer 
interpositioned a small broker-dealer between its customers' orders 
and the best available market prices); Synovus Securities, Inc., 
Securities Exchange Act Release No. 34313, 1994 WL 323096 (July 5, 
1994) (settled order) (broker-dealer and its president placed 
customer orders with person who was able to promptly sell the bonds 
to or buy the bonds from other brokers at a profit and customers did 
not get the best market price). See also SEC v. Ridenour, 913 F.2d 
515 (8th Cir. 1990) (a bond salesman violated the antifraud 
provisions based on his secret interpositioning of his personal 
trading account between his customers' securities transactions and 
the fair market price of the trades).
    \30\ See Thomson & McKinnon, Securities Exchange Act Release No. 
8310, 1968 WL 87637 (May 8, 1968) (Comm'n op.) (a National 
Association of Securities Dealers (``NASD'') member firm interposed 
broker-dealers between itself and the best available market, and the 
added transaction cost was borne by its customers; the Commission 
found that, ``[i]n view of the obligation of a broker to obtain the 
most favorable price for his customer, where he interposes another 
broker-dealer between himself and a third broker-dealer, he prima 
facie has not met that obligation and he has the burden of showing 
that the customer's total cost or proceeds of the transaction is the 
most favorable obtainable under the circumstances'').
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    The Commission has also discussed its views with respect to the 
application of best execution to different order types. With regard to 
the handling of limit orders, broker-dealers must take into account 
material differences in execution quality, such as the likelihood of 
execution among the various markets or market centers to which limit 
orders may be routed.\31\ Broker-dealers are also subject to the duty 
of best execution when executing customer orders at the beginning of 
regular trading hours and should take into account alternative methods 
when considering how to execute these orders.\32\
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    \31\ See Order Execution Obligations Adopting Release, supra 
note 10, 61 FR 48323.
    \32\ See Order Execution and Routing Practice Release, supra 
note 22, 65 FR 75422 (recognizing that customer orders in listed 
securities were executed at one opening price in an auction whereas 
customer orders in Nasdaq securities at the time traded at the 
quoted bids and offers resulting in a liquidity premium for a large 
number of orders that effectively cross each other at a single point 
in time).
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    Moreover, the Commission has recognized practical challenges 
associated with the handling of a large volume of orders. In 
particular, the Commission acknowledged in 1994 that although it may be 
impractical for a broker-dealer that handles a heavy volume of orders 
to make an individual determination regarding where to route each order 
it receives, the broker-dealer must use due diligence to seek the best 
execution possible given all facts and circumstances.\33\ At that time, 
the Commission reasoned that, in such circumstances, the duty of best 
execution requires a broker-dealer to periodically assess the quality 
of competing markets to ensure that order flow is directed to the 
markets providing the most beneficial terms for its customer 
orders.\34\
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    \33\ See Securities Exchange Act Release No. 34902 (Oct. 27, 
1994), FR Document 94-27109 (Nov. 2, 1994) (``Payment for Order Flow 
Release'').
    \34\ See id. See also Regulation NMS Adopting Release, supra 
note 21, 70 FR 37516.
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    The Commission has further identified the types of data needed by 
broker-dealers to fulfill their duty of best execution. For example, 
quotation information contained in the public quotation system must be 
considered in seeking best execution of customer orders.\35\ In 
adopting Rules 605 and 606 of Regulation NMS,\36\ the Commission 
recognized that the reports required of market centers would provide 
statistical disclosures regarding certain factors, such as execution 
price and speed of execution, relevant to a broker-dealer's order 
routing decision and that these public disclosures of execution quality 
should help broker-dealers fulfill their duty of best execution.\37\ 
More recently, the Commission stated that broker-dealers should 
consider the availability of consolidated market data, including the 
various elements of data content and the timeliness, accuracy, and 
reliability of the data in developing and maintaining their best 
execution

[[Page 5444]]

policies and procedures.\38\ However, recognizing that best execution 
analysis varies depending upon the characteristics of customers and 
orders handled and the large array of potential scenarios, the 
Commission stated that it cannot specify the data elements that may be 
relevant to every specific situation.\39\
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    \35\ See Order Execution Obligations Adopting Release, supra 
note 10, 61 FR 48324.
    \36\ See 17 CFR 242.605, 242.606.
    \37\ See Order Execution and Routing Practice Release, supra 
note 22, 65 FR 75413. The Commission further stated that the rules 
were designed to generate uniform, general purpose statistics that 
will prompt more vigorous competition on execution quality. The 
information provided by these reports is not, by itself, sufficient 
to support conclusions regarding the provision of best execution, 
and any such conclusions would require a more in-depth analysis of 
the broker-dealer's order routing practices than will be available 
from the disclosures required by the rules. See id. at 75420.
    \38\ See Securities Exchange Act Release No. 90610 (Dec. 9, 
2020), 86 FR 18596, 18605-06 (Apr. 9, 2021) (``MDI Adopting 
Release''). The Commission stated that it was not establishing 
minimum data elements needed to achieve best execution nor mandating 
consumption of the expanded data content. The Commission also 
acknowledged that different market participants and different 
trading applications have different market data needs. See id. 
(citing Securities Exchange Act Release No. 88216 (Feb. 14, 2020), 
85 FR 16726, 16734, 16755 (Mar. 24, 2020) (``Market Data 
Infrastructure Proposing Release'')).
    \39\ See MDI Adopting Release, supra note 38, 86 FR at 18606.
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    The Commission has also stated the importance of price improvement 
opportunities in the context of listed and over-the-counter (``OTC'') 
equities.\40\ Simply routing customer order flow for automated 
executions or internalizing customer orders on an automated basis at 
the best bid or offer would not necessarily satisfy a broker-dealer's 
duty of best execution for small orders in listed and OTC equities.\41\ 
Rather, broker-dealers handling small orders in listed and OTC equities 
should look for price improvement opportunities when executing these 
orders.\42\ And the expectation of price improvement for customer 
orders is particularly important when broker-dealers receive payments 
in return for routing their customer orders.\43\
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    \40\ See Order Execution Obligations Adopting Release, supra 
note 10, 61 FR at 48323. See also id. at 48323 n.357.
    \41\ See id. at 48323.
    \42\ See id.
    \43\ See Payment for Order Flow Release, supra note 33, 59 FR at 
55008. See also 17 CFR 240.10b-10(d)(8) (defining ``payment for 
order flow'' as any monetary payment, service, property, or other 
benefit that results in remuneration, compensation, or consideration 
to a broker or dealer from any broker or dealer, national securities 
exchange, registered securities association, or exchange member in 
return for the routing of customer orders by such broker or dealer 
to any broker or dealer, national securities exchange, registered 
securities association, or exchange member for execution, including 
but not limited to: research, clearance, custody, products or 
services; reciprocal agreements for the provision of order flow; 
adjustment of a broker or dealer's unfavorable trading errors; 
offers to participate as underwriter in public offerings; stock 
loans or shared interest accrued thereon; discounts, rebates, or any 
other reductions of or credits against any fee to, or expense or 
other financial obligation of, the broker or dealer routing a 
customer order that exceeds that fee, expense or financial 
obligation). Retail broker-dealers receiving cash payments from 
wholesale market makers in return for routing their customers' 
orders to the market maker for execution is a common example of 
payment for order flow. See Memorandum to the SEC Equity Market 
Structure Advisory Committee from the SEC Division of Trading and 
Markets, Certain Issues Affecting Customers in the Current Equity 
Market Structure 5-6 (Jan. 26, 2016). Staff reports, Investor 
Bulletins, and other staff documents (including those cited herein) 
represent the views of Commission staff and are not a rule, 
regulation, or statement of the Commission. The Commission has 
neither approved nor disapproved the content of these staff 
documents and, like all staff statements, they have no legal force 
or effect, do not alter or amend applicable law, and create no new 
or additional obligations for any person.
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C. FINRA and MSRB Best Execution Rules

    FINRA, an SRO,\44\ has a best execution rule (Rule 5310) and has 
issued interpretive regulatory notices concerning its members' duty to 
provide best execution to customer orders.\45\ FINRA Rule 5310 states 
that, ``[i]n any transaction for or with a customer or customer of 
another broker-dealer, a member and persons associated with a member 
must use reasonable diligence to ascertain the best market for the 
subject security and buy or sell in such market so that the resultant 
price to the customer is as favorable as possible under prevailing 
market conditions.'' Over the years, FINRA and its predecessor, the 
NASD, have modified the rule and issued interpretations to account for 
changes in market practices and market structure, and to account for 
new technologies and new data available to broker-dealers that handle 
and execute customer orders.\46\
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    \44\ While the MSRB is an SRO for only certain purposes of the 
Exchange Act, see Exchange Act section 3(a)(26), 15 U.S.C. 
78c(a)(26), MSRB rules are rules of an SRO, see Exchange Act section 
3(a)(28), 15 U.S.C. 78c(a)(28). FINRA and the MSRB are both referred 
to herein as SROs.
    \45\ For ease of discussion and consistency, this release refers 
to FINRA members as broker-dealers when discussing the FINRA rules 
that are applicable to FINRA members.
    \46\ See, e.g., FINRA Regulatory Notices 21-23 (June 23, 2021), 
21-12 (Mar. 18, 2021), 18-29 (Sept. 12, 2018), 15-46 (Nov. 2015), 
and 09-58 (Oct. 2009); NASD Notices to Members 01-22 (Apr. 2001), 
00-42 (June 2000), and 99-12 (Feb. 1999).
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    Modeled on FINRA Rule 5310,\47\ MSRB Rule G-18 is the best 
execution rule for transactions in municipal securities \48\ and 
similarly requires broker-dealers to ``use reasonable diligence to 
ascertain the best market for the subject security and to buy or sell 
in that market so that the resultant price to the customer is as 
favorable as possible under prevailing market conditions.''
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    \47\ In proposing Rule G-18, the MSRB stated that a best 
execution rule should be generally harmonized with FINRA Rule 5310 
for purposes of regulatory efficiency, but appropriately tailored to 
the characteristics of the municipal securities markets. See 
Securities Exchange Act Release No. 73764 (Dec. 5, 2014), 79 FR 
73658 (Dec. 11, 2014) (``MSRB Best Execution Approval Order''). 
While proposed Regulation Best Execution does not include different 
requirements for markets with different characteristics, proposed 
Regulation Best Execution is designed to enable broker-dealers to 
tailor their compliance based on the different characteristics of 
the markets.
    \48\ MSRB Rule G-18 applies to brokers, dealers, and municipal 
securities dealers. For ease of discussion and consistency, when 
discussing the MSRB rule, the release refers to these entities 
collectively as broker-dealers. Furthermore, the term ``municipal 
securities'' throughout this release is referred to as either 
``municipal bonds'' or ``municipal securities.''
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    The Commission describes the elements in FINRA Rule 5310 and MSRB 
Rule G-18, as well as the differences between those rules and the 
proposed rules, in section IV below.

III. Existing Order Handling Practices and Overview of Proposed 
Regulation Best Execution

A. Existing Order Handling Practices

1. General Broker-Dealer Practices
    In the past few decades, there has been a proliferation of markets 
and increasingly accessible prices across asset classes. For example, 
broker-dealers have numerous execution venues from which to choose in 
the NMS stock market. These include 16 registered equities exchanges, 
an increase from 11 registered equities exchanges approximately 12 
years ago.\49\ In the options markets, the number of options exchanges 
continues to increase, with 6 new options exchanges in the last 10 
years and 16 registered options exchanges operating today. In the 
corporate and municipal bond markets and government securities markets, 
traditional OTC voice trading protocols and customer liquidity 
provision by principal trading desks of broker-dealers are being 
supplemented by other methods of execution that are both electronic and 
multilateral in nature. As of October 31, 2022, there are 21 corporate 
bond alternative trading systems (``ATSs''), 7 municipal securities 
ATSs, and 14 government securities ATSs, each operating pursuant to a 
Form ATS currently on file with the Commission.
---------------------------------------------------------------------------

    \49\ See Securities Exchange Act Release No. 61358 (Jan. 14, 
2010), 75 FR 3594 (Jan. 21, 2010) (``Concept Release on Equity 
Market Structure'').
---------------------------------------------------------------------------

    The Commission believes that customers would benefit from broker-
dealers' robust considerations of liquidity sources and price 
improvement opportunities, which may provide customers with the most 
favorable prices. In the NMS stock market, for example, broker-dealers 
that primarily service the accounts of individual investors (``retail 
broker-dealers'') route more than 90% of their customers' marketable 
orders to a small group of off-exchange dealers, known as 
wholesalers,\50\ and the Commission

[[Page 5445]]

believes that customers would benefit from considerations by these 
retail broker-dealers of whether other markets may provide customer 
orders, or a portion of those orders, with potentially better 
executions than wholesalers.
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    \50\ See Table 8, infra section V.B.3.(a).i.d..
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    For NMS stock orders that receive price improvement from 
wholesalers, approximately 18.6% of those shares receive an amount of 
price improvement of less than 0.1 cent per share when executed by the 
wholesaler.\51\ Moreover, for stocks priced higher than $30, between 
approximately 46-63% of shares executed by wholesalers received price 
improvement that was less favorable than the midpoint of the prevailing 
national best bid and offer (``NBBO'') at the time the wholesaler 
received the order.\52\ For stocks priced higher than $30, it appears 
that for between 60-93% of the shares executed by the wholesaler in a 
principal capacity at a price less favorable than the NBBO midpoint 
there was midpoint liquidity that was available on exchanges and ATSs 
at the time the wholesaler executed the order.\53\ Retail broker-
dealers often do not route customer orders to execute against midpoint 
liquidity that may be present on other markets prior to routing for 
execution by wholesalers.\54\ While a retail broker-dealer's decision 
to route orders to a wholesaler that provides price improvement may 
indeed be consistent with its duty of best execution in many cases,\55\ 
the Commission believes that customers would benefit from robust 
considerations by retail broker-dealers regarding, for example, the 
possibility of available liquidity priced at the midpoint of the NBBO 
at other markets.
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    \51\ See Table 8, infra section V.B.3.(a).i.d.
    \52\ The percentage ranges are based on stock prices, the 
liquidity of the stock, whether or not the stock was in the S&P 500 
Index, and whether or not the stock is an exchange-traded fund 
(``ETF''). See Table 8, infra section V.B.3.(a).i.d (analysis 
showing that depending on the type of NMS stock, its price, and 
liquidity, between 46% and 73% of retail marketable order shares are 
internalized by a wholesaler at a price worse than the NBBO 
midpoint).
    \53\ See Table 8, infra section V.B.3.(a).i.d (analysis showing 
that, depending on the type of NMS stock, its price, and its 
liquidity, between 40% and 93% of the shares in marketable retail 
orders that wholesalers internalize at prices less favorable than 
the NBBO midpoint had midpoint liquidity available at a better price 
on an exchange or ATS).
    \54\ See Table 3, infra section V.B.3.(a).i.d (according to 
Table 3, retail brokers appear to outsource handling of over 87% of 
customer orders and over 90% of customer marketable orders to 
wholesalers).
    \55\ For example, wholesalers appear to provide customers with 
executions in NMS stocks at the midpoint or better (based on the 
NBBO at the time the wholesaler received the order) for almost 46% 
of the customer orders executed by the wholesaler in a principal 
capacity. See Table 7, infra section V.B.3.(a).i.d . But see supra 
note 53 and accompanying text (describing that for stocks priced 
higher than $30, it appears that between 60-93% of the shares 
executed by the wholesaler in a principal capacity at a price less 
favorable than the NBBO midpoint had liquidity available at the NBBO 
midpoint on an exchange or ATS).
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    Similar considerations are present with the order handling and 
routing practices of wholesalers in the NMS stock market.\56\ While the 
prices that wholesalers provide to a customer may often justify the 
determination by the wholesaler that it is the best market for the 
customer order, the specific amount of price improvement for orders 
that are executed internally is largely within the discretion of the 
wholesaler. The wholesaler typically first determines whether or not it 
desires to transact with a particular customer order in a principal 
capacity. Should it choose to do so, the wholesaler determines what 
amount of price improvement it will provide for the order, and the data 
described above shows that wholesalers often do not execute customer 
orders at the NBBO midpoint. When the wholesaler has determined that it 
does not want to transact with a customer order in a principal 
capacity, the wholesaler may attempt to route such order to other 
markets.
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    \56\ Wholesalers owe a duty of best execution to the customers 
of retail broker-dealers under FINRA Rule 5310. See FINRA Rule 
5310(a) (applying its best execution requirements to any transaction 
for or with a customer or a customer of another broker-dealer).
---------------------------------------------------------------------------

    As discussed in section III.A.2, the Commission believes that 
customers would benefit from robust considerations by broker-dealers of 
liquidity sources and price improvement opportunities in the options 
market, particularly with respect to transactions that involve order 
handling conflicts of interest.
    The corporate and municipal bond markets and the government 
securities markets are different from the NMS stock market in 
substantial ways that can impact how a broker-dealer fulfills its duty 
of best execution. For example, market participants do not have the 
same level of price transparency in these markets as they do in the NMS 
stock market. While the corporate and municipal bond markets 
disseminate post-trade price information, this information often is not 
available immediately upon execution of a bond transaction as FINRA and 
MSRB rules permit a trade to be reported within 15 minutes of the 
transaction.\57\ In the government securities market, there is no real-
time public dissemination of post-trade price information. Despite the 
increase in electronic trading and the use of ATSs, these markets are 
decentralized with most trading occurring through broker-dealers that 
make markets in securities they have underwritten or hold in 
inventory.\58\ There is virtually no exchange trading of these 
bonds.\59\ Generally, trades occur both by voice and through the use of 
electronic systems that provide trading facilities and communication 
protocols with varying degrees of execution functionality and access to 
pre-trade pricing information.\60\ However, market participants in the 
corporate and municipal bond markets and the government securities 
markets are increasingly utilizing technology to trade these 
securities, and electronic trading is growing.\61\ The lower level of 
price transparency in, and the decentralized nature of, the corporate 
and municipal bond and government securities markets make it more 
difficult for customers to evaluate their transactions and highlights 
the importance of robust best execution considerations by broker-
dealers in these markets.
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    \57\ However, both FINRA and the MSRB recently solicited comment 
about shortening the applicable transaction reporting window to one 
minute. See FINRA Regulatory Notice 22-17 (Aug. 2, 2022); MSRB 
Notice 2022-07 (Aug. 2, 2022).
    \58\ See, e.g., Maureen O'Hara & Xing (Alex) Zhou, Anatomy of a 
Liquidity Crisis: Corporate Bonds in the COVID-19 Crisis, 142 J. 
Fin. Econ. 46 (2021).
    \59\ A small percentage of corporate bonds are exchange-traded 
on trading systems such as NYSE Bonds and the Nasdaq Bond Exchange. 
See generally, https://www.nyse.com/markets/bonds and https://www.nasdaq.com/solutions/nasdaq-bond-exchange. Trading volume in 
exchange-traded bonds was reported to be around $19 billion as of 
January 2020. See Securities Exchange Act Release No. 94062 (Jan. 
26, 2022), 87 FR 15496 (Mar. 18, 2022) (``Government Securities ATS 
Proposing Release''), at 15604 n.863 (citing Eric Uhlfelder, A 
Forgotten Investment Worth Considering: Exchange-Traded Bonds, Wall 
St. J. (Jan. 5, 2020), https://www.wsj.com/articles/a-forgotten-investment-worth-considering-exchange-traded-bonds-11578279781).
    \60\ See Government Securities ATS Proposing Release, supra note 
59, 87 FR 15606.
    \61\ For example, according to one industry group, approximately 
32% of investment-grade and 23% of high-yield corporate bond daily 
dollar volumes are executed electronically. See id., at 15606 n.890.
---------------------------------------------------------------------------

    Commission analysis shows significant differences in the 
variability of execution prices among interdealer trades \62\ compared 
to the variability of execution prices among customer trades in the 
same bonds on the same trading day. For example, in the corporate bond 
market, the dispersion, or standard deviation, of customer execution 
prices for transactions under $100,000 was almost 3 times more than 
that of interdealer execution prices.\63\

[[Page 5446]]

Similarly, in the municipal bond market, the dispersion of customer 
execution prices for transactions under $100,000 was more than 4 times 
greater than that of interdealer trades.\64\ And in the government 
securities market, the dispersion of customer execution prices for 
transactions under $100,000 was almost 40 percent greater than that of 
interdealer trades.\65\ The variability of prices for customer 
transactions suggests that some customers may be paying or receiving 
worse prices than other customers in the same security on the same day 
because their broker-dealers may not be evaluating as many markets for 
those transactions as other broker-dealers. While it is possible that 
some of the variability of prices paid by customers may be attributable 
to variations in broker-dealer compensation as reflected in the markups 
or markdowns charged by broker-dealers when they transact with 
customers in a principal capacity, the Commission does not believe that 
this is the only reason for customer price dispersion in the same bonds 
on the same day.\66\ For example, Commission analysis shows that in the 
corporate bond market, for trades that were reported by the broker-
dealer as not involving any collection of commissions, markups or 
markdowns, the dispersion of customer execution prices was still 65% 
greater than that of interdealer trades.\67\ Because the variability in 
the customer execution prices suggests that some broker-dealers may not 
be exercising as much diligence in identifying the best market for 
customer orders, the Commission believes that customers would benefit 
from consistently robust best execution considerations by broker-
dealers, including considerations of the various markets that may 
provide their customers with the most favorable prices.
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    \62\ It is well-established that interdealer prices can reflect 
the prevailing market value for a bond. See, e.g., FINRA Rule 2121.
    \63\ See Table 17, infra section V.B.3.b.i.
    \64\ See Table 17, infra section V.B.3.b.i and V.B.3.b.ii.
    \65\ See Table 17, infra section V.B.31.b.i and V.B.3.b.iii .
    \66\ See, e.g., John M. Griffin, Nicholas Hirschey, and Samuel 
Kruger, Do Municipal Bond Dealers Give their Customers `Fair and 
Reasonable' Pricing? J. Fin., Forthcoming (Aug. 4, 2022) (``Instead 
of delivering uniform pricing, dealer transactions with customers 
take place at highly variable markups relative to both reoffering 
prices and dealer costs. On the same day, customers frequently buy 
the same bond at different prices from different dealers, and prices 
even vary across different customers purchasing the same bond from 
the same dealer on the same day. These price differences are not 
explained by trade characteristics or by dealer costs. Some dealers 
provide customers with low and consistent markups, but this does not 
appear to be the industry norm. Pricing at quarter or eighth price 
or yield increments is common and is seemingly a method to deliver 
higher markups.'').
    \67\ See infra note 478.
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2. Order Handling Conflicts of Interest
    The Commission also believes that execution of retail customer 
orders by broker-dealers that have order handling conflicts of interest 
warrants heightened attention by those broker-dealers. These order 
handling conflicts of interest include payment for order flow, 
principal trading, and routing customer orders to affiliates.
    Payment for order flow \68\ creates a conflict of interest because 
it creates an incentive for a broker-dealer to send customer orders to 
a market, such as a wholesaler or an exchange, which agrees to pay the 
broker-dealer for sending its customer orders.\69\ Payment for order 
flow may harm customers because the broker-dealer may be making order 
handling decisions to benefit itself at the expense of its 
customer.\70\ Because payment for order flow is a form of economic 
inducement that has the potential to influence the way a broker-dealer 
handles customer orders, the Commission has stated that such 
arrangements must be considered as part of a broker-dealer's best 
execution assessment.\71\
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    \68\ When discussing payment for order flow in the context of 
the proposed rules, the Commission uses the term as defined in 
Exchange Act Rule 10b-10(d)(8). This definition includes payment for 
order flow from wholesalers to retail broker-dealers, as well as 
exchange rebates that are paid to broker-dealers in return for 
sending orders to the exchange. See 17 CFR 240.10b-10 (defining 
payment for order flow and requiring a broker-dealer to disclose to 
the customer whether payment for order flow is received by the 
broker-dealer for the customer transaction and the fact that the 
source and nature of the compensation received in connection with 
the particular transaction will be furnished upon written request of 
the customer).
    \69\ See, e.g., Payment for Order Flow Release, supra note 33, 
FR Doc No: 94-27109; FINRA Regulatory Notice 21-23; Robinhood 
Financial, LLC, Letter of Acceptance, Waiver and Consent (FINRA Case 
No. 2017056224001) (Dec. 2019) (``Robinhood FINRA'') (describing 
violations of FINRA's best execution rule where the firm routed its 
customers' orders to four broker-dealers that all paid for order 
flow and ``did not exercise reasonable diligence to ascertain 
whether these four broker-dealers provided the best market for the 
subject securities to ensure its customers received the best 
execution quality from these as compared to other execution 
venues''); In the Matter of Robinhood Financial, LLC, Securities 
Exchange Act Release No. 90694 (Dec. 17, 2020) (settled action) 
(``Robinhood SEC''). Broker-dealers that accept payment for order 
flow must disclose certain information concerning the payments 
publicly. See 17 CFR 242.606(a)(1)(iv) (requiring a description of 
any arrangement for payment for order flow and any profit-sharing 
relationship and a description of any terms of such arrangements, 
written or oral, that may influence a broker-dealer's order routing 
decision).
    \70\ See, e.g., Robinhood FINRA, supra note 69; Robinhood SEC, 
supra note 69 (finding that the retail broker-dealer explicitly 
offered to accept less price improvement for its customers than what 
the wholesalers were offering, in exchange for receiving a higher 
rate of payment for order flow for itself).
    \71\ See Payment for Order Flow Release, supra note 33, FR Doc 
No: 94-27109.
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    While the Commission has stated that a broker-dealer's receipt of 
payment for order flow is not a violation of its duty of best execution 
as long as it periodically assesses the quality of the markets to which 
it routes order flow, a broker-dealer must not allow payment for order 
flow to interfere with its efforts to obtain best execution.\72\ 
Likewise, FINRA has stated that broker-dealers may not negotiate the 
terms of order routing arrangements for customer orders in a manner 
that reduces the price improvement opportunities that, absent payment 
for order flow, otherwise would be available to those customer 
orders.\73\ FINRA has also stated that obtaining price improvement is a 
heightened consideration when a broker-dealer receives payment for 
order flow and it is especially important to determine that customers 
are receiving the best price and execution quality opportunities 
notwithstanding the payment for order flow.\74\ Accordingly, the 
Commission believes that the receipt of payment for customer order flow 
continues to warrant heightened attention by broker-dealers.\75\
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    \72\ See id.
    \73\ See FINRA Regulatory Notice 21-23 (June 23, 2021).
    \74\ See id., at 3-4. FINRA has also stated that ``inducements 
such as payment for order flow and internalization may not be taken 
into account in analyzing market quality.'' See id. at 4.
    \75\ Commission staff, in a recent report, stated that 
wholesaler payment for order flow to retail broker-dealers is 
``individually negotiated prior to trading between the retail 
broker-dealer and the [wholesaler], and the rates and amounts can 
vary substantially depending on the broker-dealer and its customer 
order flow. [Wholesalers] may give the retail broker the choice of 
how to allocate those funds--either by applying some or all of that 
payment to improve the prices of its customers' orders or by 
allowing the retail broker-dealer to keep part of the payment for 
itself.'' Commission staff stated that these payments can create a 
conflict of interest for the retail broker-dealer. See Staff Report 
on Equity and Options Market Structure Conditions in Early 2021 
(Oct. 14, 2021), available at https://www.sec.gov/files/staff-report-equity-options-market-struction-conditions-early-2021.pdf. 
Additionally, Rule 606(a) of Regulation NMS requires broker-dealers 
to make publicly available on a quarterly basis certain aggregated 
order routing disclosures for held orders that provide, among other 
things, detailed disclosure of payments received from or paid to 
certain trading centers, as well as a discussion of the material 
aspects of broker-dealers' relationships with those trading centers, 
including a description of any arrangements for payment for order 
flow and any profit-sharing relationships and a description of any 
terms of such arrangements, written or oral, that may influence 
broker-dealers' order routing decisions. See 17 CFR 242.606(a).
---------------------------------------------------------------------------

    A significant portion of retail orders in the NMS stock and listed 
options market is routed in return for payment

[[Page 5447]]

for order flow. In the first quarter of 2022, wholesalers paid more 
than $796 million dollars to retail broker-dealers for order flow in 
NMS stocks and listed options.\76\ Listed options represented 
approximately 70% of the total payment for order flow with more than 
$561 million paid to retail broker-dealers by wholesalers.\77\ Payment 
for order flow creates an incentive for the retail broker-dealer to 
adopt order handling and execution practices that may not result in 
best execution for their customers.\78\ For example, as discussed more 
fully in section V, analysis in the NMS stock market appears to show 
that payment for order flow can harm customer execution quality. More 
specifically, the orders of broker-dealers that receive more payment 
for order flow from wholesalers are internalized by wholesalers with 
(1) higher effective spreads, (2) higher execution quality ratios, and 
(3) slightly smaller price improvement when compared with the orders of 
broker-dealers that do not receive payment for order flow and that are 
internalized by wholesalers.\79\ In the context of exchange rebates in 
the options market, one study finds that some brokers seemingly route 
non-marketable orders to exchanges that offer large liquidity rebates 
to maximize the value of order flow and suggests that broker-dealers 
can enhance non-marketable limit order execution quality by routing 
those orders to exchanges that do not offer liquidity rebates to non-
marketable limit orders.\80\
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    \76\ See Table 12, infra section V.B.3.(a).iii.a.
    \77\ See id. See also Thomas Ernst & Chester S. Spatt, Payment 
for Order Flow and Asset Choice, 40 (NBER Working Paper No. w29883, 
May 2022), https://ssrn.com/abstract=4068065 (retrieved from 
Elsevier database) (finding that approximately 65% of all payment 
for order flow is attributable to the options market). In addition 
to payment for order flow paid by wholesalers to retail broker-
dealers, some exchanges administer ``marketing fee'' programs 
pursuant to rules filed with the Commission, that result in payment 
for order flow directed by exchange market makers to order flow 
providers, which can include retail broker-dealers. See, e.g., 
Nasdaq Phlx LLC Options 7, Section 4; Miami International Securities 
Exchange LLC Fee Schedule Section (1)(a)(xi); NYSE American LLC 
Options Fee Schedule Section I.A. Under these programs, the 
exchanges assess fees on market makers who then typically direct the 
disbursement of some or all of the marketing fees to selected market 
participants in return for retail order flow directed to the market 
makers from the broker-dealer recipients of the marketing fees. If 
the directed market maker is quoting at the NBBO when the order is 
received, exchange rules typically guarantee the market maker a 
certain allocation of the incoming directed order, typically 
determined by the number of other market makers quoting at the NBBO 
at the time the order is received. See, e.g., PHLX Options 3, 
Section 10(a)(1)(C) (describing the directed market maker priority).
    \78\ The Commission and FINRA settled claims against a retail 
broker-dealer for, among other things, failing to provide best 
execution to customer orders for which it received payment for order 
flow. See supra note 69. The inherent trade-off between payment for 
order flow for a retail broker-dealer and price improvement for 
their customers was discussed in the Commission's settled 
enforcement action against the retail broker. See Robinhood SEC, 
supra note 69. The Commission found that the retail broker-dealer 
had negotiated with a number of wholesalers about potentially 
routing customer orders to those firms and that, in the course of 
those negotiations, certain of the wholesalers told the retail 
broker-dealer that there was a trade-off between payment for order 
flow on the one hand and price improvement on the other. See id. The 
Commission also found that the retail broker-dealer explicitly 
offered to accept less price improvement for its customers than what 
the wholesalers were offering, in exchange for receiving a higher 
rate of payment for order flow for itself. See id. Subsequently, the 
retail broker-dealer conducted a more extensive internal analysis, 
which showed that its execution quality and price improvement 
metrics were substantially worse than other retail broker-dealers in 
many respects, including the percentage of orders that received 
price improvement and the amount of price improvement, measured on a 
per order, per share, and per dollar traded basis. See id.
    \79\ See Table 16, infra section V.B.3.b..iii.b.
    \80\ See Robert Battalio et al., Do (Should) Brokers Route Limit 
Orders to Options Exchanges That Purchase Order Flow?, 56 J. Fin. & 
Quantitative Analysis 183 (2020).
---------------------------------------------------------------------------

    The Commission has also acknowledged that the opportunity for a 
broker-dealer to trade with a customer order as principal is an order 
routing inducement that could interfere with the broker-dealer's duty 
of best execution.\81\ Internalizing customer orders may create a 
conflict of interest because broker-dealers do so for the opportunity 
to capture the spread,\82\ and may thereby provide broker-dealers an 
incentive to trade with orders as principal. In the NMS stock market 
and listed options market, principal trading with retail customers is a 
common practice. As stated above in section III.A.1, a significant 
portion of retail customer orders are routed to wholesalers for 
handling and execution. Once the wholesaler receives retail customer 
orders for handling and execution, it often trades with those customer 
orders as principal. Wholesalers internalize over 90% of the dollar 
value of the marketable order flow retail broker-dealers send them.\83\ 
The Commission believes that the incentive to trade in a principal 
capacity at a price most advantageous for the wholesaler itself rather 
than the customer warrants heightened attention by the wholesaler.
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    \81\ See Order Execution Obligations Adopting Release, supra 
note 10, 61 FR 48323.
    \82\ See Internalized/Affiliate Practices, Payment for Order 
Flow and Order Routing Practices, Securities Exchange Act Release 
No. 34903 (Oct. 27, 1994), 59 FR 55014, 55014 (Nov. 2, 1994) 
(recognizing several commenters who described this conflict of 
interest).
    \83\ See Table 7, infra Section V.B.3.a.i.d.
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    Principal trading in the listed options market is also common. 
Options exchange trading and priority rules, which must be filed with 
the Commission under section 19(b) of the Exchange Act \84\ and Rule 
19b-4 thereunder,\85\ provide wholesalers with a number of methods to 
internalize customer orders. For example, the wholesaler or an 
affiliate is often either a specialist or directed market maker on one 
or more of the options exchanges. Exchange rules typically provide the 
specialist or directed market maker with the right to trade with a 
certain portion of incoming order flow regardless of whether other 
market participants may also be quoting at the same price as the 
specialist or directed market maker.\86\ These ``allocation 
guarantees'' effectively allow the wholesaler to internalize a minimum 
amount of the customer orders by routing the customer orders to 
exchanges where the wholesaler or its affiliate is designated as a 
specialist or directed market maker. Similarly, many options exchanges 
provide small order guarantees that permit the specialist (which 
potentially can be an affiliate of the wholesaler) to trade with 100% 
of all orders sent to the exchange for five contracts or less.\87\ 
Moreover, options exchanges' two-sided auctions (``price improvement 
auctions'') allow a wholesaler to internalize a customer order by 
submitting a proposed transaction between the wholesaler and a customer 
at a specified price.\88\ Other market participants are permitted to 
compete with the wholesaler for the opportunity to trade with the 
customer order. These price improvement auctions, however, generally 
afford the wholesaler with certain advantages over other market 
participants that may be interested in competing for the right to trade 
with a customer order.\89\ The Commission estimates that wholesalers in 
the listed options market generally internalize approximately 31% of 
the executed

[[Page 5448]]

orders routed to option exchanges, with approximately 73% of orders 
routed to price improvement auctions being internalized and 
approximately 17% of orders routed to the limit order book being 
internalized.\90\ The Commission believes that the incentive to trade 
in a principal capacity at a price most advantageous for the wholesaler 
itself rather than the customer warrants heightened attention by the 
wholesaler.
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    \84\ 15 U.S.C. 78s(b).
    \85\ 17 CFR 240.19b-4.
    \86\ See, e.g., BOX Exchange LLC Rule 7135(c); Miami 
International Securities Exchange LLC Rule 514(g)-(i); Nasdaq Phlx 
LLC Options 3, Section 10(a)(1); Nasdaq ISE, LLC Options 3, Section 
10(c)(1); NYSE American LLC Rule 964NY(b)(2).
    \87\ See, e.g., Nasdaq ISE, LLC Options 3, Section 10(c)(1)(D); 
Nasdaq Phlx LLC Options 3, Section 10(a)(1)(D); BOX Exchange LLC 
Rule 7135(c)(2)(iii); NYSE American LLC Rule 964NY(b)(2)(C)(iv).
    \88\ Customer orders that are submitted into price improvement 
auctions are guaranteed complete execution at a minimum execution 
price and are electronically auctioned for price improvement. See, 
e.g., Nasdaq ISE, LLC Options 3, Section 13; Nasdaq Phlx LLC Options 
3, Section 13; Miami International Securities Exchange LLC Rule 
515A; BOX Exchange LLC Rule 7150; NYSE American LLC Rule 971.1NY; 
Cboe Exchange, Inc. Rule 5.37.
    \89\ See infra notes 137-140 and accompanying text.
    \90\ See infra Section V.B.3.a.ii.
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    Finally, the practice of routing customer orders to affiliates 
raises a conflict of interest for the broker-dealer. When a broker-
dealer chooses to route customer orders to an affiliate, it may do so 
because of financial incentives, and these incentives can vary 
depending on the business model or business lines of the broker-dealer. 
For example, broker-dealers may have conflicts of interest to the 
extent that they operate or are affiliated with an entity that operates 
a trading venue, such as an ATS, because the broker-dealer or its 
affiliate receives financial benefits when the broker-dealer operator 
chooses to route customer orders to its ATS for execution (e.g., by 
routing an order to its ATS, a broker-dealer operator that does not 
pass through trading fees to its customers may be able to avoid paying 
fees that it otherwise would have to pay when routing and executing 
orders on unaffiliated trading venues).\91\ A broker-dealer operator 
also benefits by routing to its ATS because it creates higher volume on 
the ATS, which can attract additional order flow to the ATS, ultimately 
increasing the ATS' market share and associated revenue.\92\ Another 
example of affiliate routing conflicts of interest relates to a 
financial services firm that may have an organizational structure that 
separates its retail facing business from its order handling and 
execution business. The retail broker-dealer that receives a customer 
order may have a financial incentive to send the customer order to its 
affiliated executing broker-dealer because the affiliated executing 
broker-dealer may wish to trade as principal with the customer order. 
While an affiliated executing broker-dealer could provide best 
execution for customer orders, the incentive to send customer orders to 
an affiliate may influence the broker-dealer to route the customer 
order in a manner that maximizes the broker-dealer's interest, rather 
than route the customer order to another market consistent with its 
duty of best execution.\93\ Accordingly, the Commission believes that 
the impact of this practice on customer orders continues to warrant 
heightened attention by broker-dealers.
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    \91\ See Amber Anand et al., Institutional Order Handling and 
Broker-Affiliated Trading Venues, 34 Rev. Fin. Stud. 3364, 3366 
(July 2021) (``Anand'') (recognizing the conflict between obtaining 
the best outcome for the customer and maximizing the broker-dealer's 
revenue due to avoiding a fee that is typically borne by the broker-
dealer). This study found that ``institutional brokers who route 
more orders to affiliated [ATSs] are associated with lower execution 
quality (i.e., lower fill rates and higher implementation shortfall 
costs).'' Id. See also Regulation of NMS Stock Alternative Trading 
Systems, Securities Exchange Act Release No. 83663 (July 18, 2018), 
83 FR 38768, 38775, 38834 (Aug. 7, 2018).
    \92\ See Anand, supra note 91, at 3366.
    \93\ Recently, FINRA has entered into settlements with broker-
dealers for best execution violations of FINRA rules involving 
affiliated routing practices. In one case, FINRA found that the 
broker-dealer ``failed to consider whether alternate routing 
arrangements could have provided price improvement opportunities and 
better speed of execution'' for customer orders despite its 
consideration of certain execution quality factors for orders routed 
to an affiliated ATS. FINRA also stated that ``although [the firm] 
reviewed fill rates in [its affiliated ATS] during the relevant 
period, the firm failed to consider alternate routing arrangements 
when the firm showed that fill rates in [its affiliated ATS] were 
inferior to fill rates at some competing execution venues.'' FINRA 
found that this practice violated FINRA's best execution rule. See 
Barclays Capital Inc., Letter of Acceptance, Waiver, and Consent No. 
2014041808601 (Oct. 4, 2022), available at https://www.finra.org/sites/default/files/2022-10/Barclays-Capital-AWC-100522.pdf. In 
another case, FINRA found that the broker-dealer routinely routed 
institutional customer orders to its affiliated ATS prior to routing 
such orders to exchanges or to other ATSs. According to FINRA's 
findings, the broker-dealer routed to its affiliated ATS despite 
having evidence that (1) orders that were sent to the affiliated ATS 
had lower fill rates as compared to orders sent directly to 
exchanges, and (2) other ATSs consistently ranked higher in the 
firm's rankings for execution quality than the affiliated ATS. FINRA 
found that this affiliated routing practice violated FINRA's best 
execution rule 5310. See Deutsche Bank Securities Inc., Letter of 
Acceptance, Waiver, and Consent No. 2014041813501 (Mar. 7, 2022), 
available at https://www.finra.org/sites/default/files/2022-03/deutsche-bank-awc-030722.pdf.
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3. Crypto Asset Securities
    As discussed in section II.A above, a broker-dealer has a legal 
duty to seek best execution of customer orders in securities. Proposed 
Regulation Best Execution would apply to all securities, including any 
digital asset that is a security or a government security under the 
Federal securities laws. The term ``digital asset'' refers to an asset 
that is issued and/or transferred using distributed ledger or 
blockchain technology (``distributed ledger technology''), including, 
but not limited to, so-called ``virtual currencies,'' ``coins,'' and 
``tokens.'' \94\
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    \94\ See Custody of Digital Asset Securities by Special Purpose 
Broker-Dealers, Securities Exchange Act Release No. 90788 (Dec. 23, 
2020), 86 FR 11627, 11627 n.1 (Feb. 26, 2021) (``Crypto Asset 
Securities Custody Release''). A digital asset may or may not meet 
the definition of a ``security'' under the Federal securities laws. 
See, e.g., Report of Investigation Pursuant to Section 21(a) of the 
Securities Exchange Act of 1934: The DAO, Securities Exchange Act 
Release No. 81207 (July 25, 2017) (``DAO 21(a) Report''), available 
at https://www.sec.gov/litigation/investreport/34-81207.pdf. See 
also SEC v. W.J. Howey Co., 328 U.S. 293 (1946). To the extent 
digital assets rely on cryptographic protocols, these types of 
assets also are commonly referred to as ``crypto assets'' and 
``digital asset securities'' can be referred to as ``crypto asset 
securities.'' For purposes of this release, the Commission does not 
distinguish between the terms ``digital asset securities'' and 
``crypto asset securities.''
---------------------------------------------------------------------------

    Unlike securities that are not issued or transferred using 
distributed ledger technology, the Commission has limited information 
about the order handling and best execution practices of broker-dealers 
that engage in transactions for or with customers in crypto asset 
securities.\95\ This information limitation is, in part, due to the 
fact that only a small portion of crypto asset security trading 
activity is occurring within entities that are registered with the 
Commission and any of the SROs. For example, there are currently no 
special purpose broker-dealers authorized to maintain custody of crypto 
asset securities.\96\ Similarly, only a limited

[[Page 5449]]

amount of crypto asset security volume is executed on trading venues 
under the Commission's ATS framework.\97\ This information limitation 
is also, in part, due to the significant trading activity in crypto 
asset securities that may be occurring in non-compliance with the 
Federal securities laws.\98\
---------------------------------------------------------------------------

    \95\ See, e.g., Fin. Stability Oversight Council, Report on 
Digital Asset Financial Stability Risks and Regulation 119 (2022) 
(``FSOC Report''), available at https://home.treasury.gov/system/files/261/FSOC-Digital-Assets-Report-2022.pdf (``The crypto-asset 
ecosystem is characterized by opacity that creates challenges for 
the assessment of financial stability risks.''); U.S. Dep't of the 
Treasury, Crypto-Assets: Implications for Consumers, Investors, and 
Businesses 12 (Sept. 2022) (``Crypto-Assets Treasury Report''), 
available at https://home.treasury.gov/system/files/136/CryptoAsset_EO5.pdf (finding that data pertaining to ``off-chain 
activity'' is limited and subject to voluntary disclosure by trading 
platforms and protocols, with protocols either not complying with or 
not subject to obligations ``to report accurate trade information 
periodically to regulators or to ensure the quality, consistency, 
and reliability of their public trade data''); Fin. Stability Bd., 
Assessment of Risks to Financial Stability from Crypto-assets 18-19 
(Feb. 16, 2022) (``FSB Report''), available at https://www.fsb.org/wp-content/uploads/P160222.pdf (finding that the difficulty in 
aggregating and analyzing available data in the digital asset space 
``limits the amount of insight that can be gained with regard to the 
[digital asset] market structure and functioning,'' including who 
the market participants are and where the market's holdings are 
concentrated, which, among other things, limits regulators' ability 
to inform policy and supervision); Raphael Auer et al., Banking in 
the Shadow of Bitcoin? The Institutional Adoption of 
Cryptocurrencies 4, 9 (Bank for Int'l Settlements, Working Paper No. 
1013, May 2022), available at https://www.bis.org/publ/work1013.pdf 
(stating that data gaps, which can be caused by limited disclosure 
requirements, risk undermining the ability for holistic oversight 
and regulation of cryptocurrencies); Int'l Monetary Fund, The Crypto 
Ecosystem and Financial Stability Challenges, in Global Financial 
Stability Report 41, 47 (Oct. 2021), available at https://www.imf.org/-/media/Files/Publications/GFSR/2021/October/English/ch2.ashx (finding that digital asset service providers provide 
limited, fragmented, and, in some cases, unreliable data, as the 
information is provided voluntarily without standardization and, in 
some cases, with an incentive to manipulate the data provided).
    \96\ For background on Rule 15c3-3, 17 CFR 240.15c3-3, as it 
relates to digital asset securities, see U.S. Sec. & Exch. Comm'n, 
Joint Staff Statement on Broker-Dealer Custody of Digital Asset 
Securities (July 8, 2019), https://www.sec.gov/news/public-statement/joint-staff-statement-broker-dealer-custody-digital-asset-securities; Fin. Indus. Regul. Auth., SEC Staff No-Action Letter, 
ATS Role in the Settlement of Digital Asset Security Trades (Sept. 
25, 2020), available at https://www.sec.gov/divisions/marketreg/mr-noaction/2020/finra-ats-role-in-settlement-of-digital-asset-security-trades-09252020.pdf. To date, five offerings of crypto 
asset securities have been registered or qualified under the 
Securities Act of 1933, and five classes of crypto asset securities 
have been registered under the Exchange Act. The Commission issued a 
statement describing its position that, for a period of five years, 
special purpose broker-dealers operating under the circumstances set 
forth in the statement will not be subject to a Commission 
enforcement action on the basis that the broker-dealer deems itself 
to have obtained and maintained physical possession or control of 
customer fully paid and excess margin digital asset securities for 
purposes of Rule 15c3-3(b)(1) under the Exchange Act. See Crypto 
Asset Securities Custody Release, supra note 94. To date, no such 
special purpose broker-dealer registration applications have been 
granted by FINRA.
    \97\ ATSs that do not trade NMS stocks file with the Commission 
a Form ATS notice, which the Commission does not approve. Form ATS 
requires, among other things, that ATSs provide information about: 
classes of subscribers and differences in access to the services 
offered by the ATS to different groups or classes of subscribers; 
securities the ATS expects to trade; any entity other than the ATS 
involved in its operations; the manner in which the system operates; 
how subscribers access the trading system; procedures governing 
entry of trading interest and execution; and trade reporting, 
clearance, and settlement of trades on the ATS. In addition, all 
ATSs must file quarterly reports on Form ATS-R with the Commission. 
Form ATS-R requires, among other things, volume information for 
specified categories of securities, a list of all securities traded 
in the ATS during the quarter, and a list of all subscribers that 
were participants. To the extent that an ATS trades crypto asset 
securities, the ATS must disclose information regarding its crypto 
asset securities activities as required by Form ATS and Form ATS-R. 
Form ATS and Form ATS-R are deemed confidential when filed with the 
Commission. Based on information provided on these forms, a limited 
number of ATSs have noticed on Form ATS their intention to trade 
certain crypto asset securities and a subset of those ATSs have 
reported transactions in crypto asset securities on their Form ATS-
R.
    \98\ See also FSOC Report, supra note 95, at 5, 87, 94, 97 
(emphasizing the importance of the existing financial regulatory 
structure while stating that certain digital asset platforms may be 
listing securities while not in compliance with exchange, broker-
dealer, or other registration requirements, which may impose 
additional risk on banks and investors and result in ``serious 
consumer and investor protection issues''); Crypto-Assets Treasury 
Report, supra note 95, at 26, 29, 39, 40 (stating that issuers and 
platforms in the digital asset ecosystem may be acting in non-
compliance with statutes and regulations governing traditional 
capital markets, with market participants that actively dispute the 
application of existing laws and regulations, creating risks to 
investors from non-compliance with, in particular, extensive 
disclosure requirements and market conduct standards); FSB Report, 
supra note 95, at 4, 8, 18 (stating that some trading activity in 
crypto assets may be failing to comply with applicable laws and 
regulations, while failing to provide basic investor protections due 
to their operation outside of or in non-compliance with regulatory 
frameworks, thereby failing to provide the ``market integrity, 
investor protection or transparency seen in appropriately regulated 
and supervised financial markets'').
---------------------------------------------------------------------------

    The Commission believes that it is appropriate for a broker-dealer 
that engages in transactions for or with customers or customers of 
another broker-dealer in crypto asset securities to be subject to 
proposed Regulation Best Execution. As discussed in section I above, 
the duty of best execution is of fundamental importance to investors 
and the markets, including investors in, and the market for, crypto 
asset securities. For example, a customer transacting in crypto asset 
securities should receive the protections afforded by the requirement 
that broker-dealers exercise reasonable diligence to ascertain the best 
market for the crypto asset securities and buy and sell in such market 
so that the price to the customer is as favorable as possible under 
prevailing market conditions. In doing so, broker-dealers should be 
taking steps to ensure that they are evaluating the range of markets 
that trade crypto asset securities and appropriately identifying those 
markets that may be likely to provide customers with the most favorable 
prices.

B. Overview of Proposed Regulation Best Execution

    The Commission believes that proposed Regulation Best Execution 
would further the Congressional goal set forth in Exchange Act Section 
11A(a)(1)(C)(iv) regarding executing investors' orders in the best 
market and reinforce broker-dealer obligations concerning the duty of 
best execution. In particular, proposed Regulation Best Execution would 
identify specific factors that must be addressed by a broker-dealer's 
policies and procedures on best execution, impose additional 
requirements for conflicted transactions, and impose best execution-
specific review and documentation requirements, all of which should 
better protect investors by promoting consistently robust order 
handling and execution practices.\99\
---------------------------------------------------------------------------

    \99\ See section IV for discussions of the differences between 
the proposed rules and the existing FINRA and MSRB rules on best 
execution. As discussed in detail in section IV, proposed Regulation 
Best Execution is consistent with the FINRA and MSRB best execution 
rules in some respects and, in some other respects, goes beyond 
those rules imposing additional and/or more specific requirements.
---------------------------------------------------------------------------

    Proposed Rule 1100 would set forth the standard of best execution, 
requiring a broker-dealer to use reasonable diligence to ascertain the 
best market for a security, and buy or sell in such market so that the 
resultant price to the customer is as favorable as possible under 
prevailing market conditions. Proposed Rule 1101 would require a 
broker-dealer to establish, maintain, and enforce written policies and 
procedures that address specific elements that are designed to promote 
the best execution of customer orders, and comply with certain 
execution quality review and documentation requirements.
    More specifically, proposed Rule 1101(a)(1) would require that a 
broker-dealer's policies and procedures address how it will comply with 
the best execution standard in proposed Rule 1100. In particular, a 
broker-dealer's policies and procedures would be required to address 
how it will: (1) obtain and assess reasonably accessible information 
concerning the markets trading the relevant securities; (2) identify 
markets that may be reasonably likely to provide the most favorable 
prices for customer orders (``material potential liquidity sources''); 
and (3) incorporate the material potential liquidity sources into its 
order handling practices and ensure efficient access to each such 
material potential liquidity source. The Commission believes this 
aspect of the proposal would promote consistently robust order handling 
practices by requiring each broker-dealer to establish a detailed 
framework to achieve best execution, which involves an analysis of 
relevant information, an evaluation of the range of liquidity sources, 
and the identification of and ability to efficiently access liquidity 
sources.
    Proposed Rule 1101(a)(2) would require a broker-dealer's policies 
and procedures to address how it will determine the best market and 
make routing and execution decisions for the customer orders that it 
receives. In particular, a broker-dealer's policies and procedures 
would be required to address how it will: (1) assess reasonably 
accessible and timely information, including information with respect 
to the best displayed prices, opportunities for price improvement, and 
order exposure opportunities that may result in the most favorable 
price; (2) assess the attributes of customer orders and consider the 
trading characteristics of the security, the size of the orders, the 
likelihood of execution, and the accessibility of the market, and any 
customer instructions in selecting the market most likely to provide 
the most favorable price; and (3) reasonably

[[Page 5450]]

balance the likelihood of obtaining a better price with the risk that 
delay could result in a worse price when determining the number and 
sequencing of markets to be assessed. These considerations have been 
recognized as relevant for a broker-dealer's duty of best 
execution.\100\
---------------------------------------------------------------------------

    \100\ See, e.g., supra notes 21-23 and accompanying text; FINRA 
Rules 5310(a)(1) and 5310.09(b)(1).
---------------------------------------------------------------------------

    As discussed in section IV.B below, the factors that must be 
included in a broker-dealer's policies and procedures under proposed 
Rule 1101(a) are generally consistent with the factors that FINRA and 
the MSRB have identified as relevant to a broker-dealer's best 
execution determinations. The Commission understands that, currently, 
some broker-dealers incorporate various best execution factors from the 
FINRA and MSRB best execution rules in their policies and procedures. 
However, by requiring broker-dealers' best execution policies and 
procedures to explicitly address these factors, proposed Rule 1101(a) 
would help ensure that broker-dealers have established processes in 
place for considering these factors and that broker-dealers follow 
these processes when transacting for or with customers, which should 
promote consistently robust order handling practices among broker-
dealers.\101\
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    \101\ Moreover, requiring broker-dealers' best execution 
policies and procedures to address factors similar to those that 
FINRA and the MSRB have already identified as relevant to best 
execution determinations would mitigate compliance costs associated 
with the proposed rules.
---------------------------------------------------------------------------

    Proposed Rule 1101(b) would require broker-dealers that have 
certain conflicts of interest to establish additional policies and 
procedures to better position them to meet the best execution standard 
in these circumstances. In particular, a broker-dealer's policies and 
procedures for conflicted transactions would be required to address how 
it will: (1) obtain and assess information beyond that required by 
proposed Rule 1101(a)(1)(i) in identifying a broader range of markets 
beyond the material potential liquidity sources; and (2) evaluate a 
broader range of markets beyond the material potential liquidity 
sources. Proposed Rule 1101(b) would also require broker-dealers to 
document their compliance with the best execution standard for 
conflicted transactions, including all efforts taken to enforce their 
policies and procedures, and their basis and information relied on for 
determining that their conflicted transactions would comply with the 
proposed best execution standard. Such documentation would be required 
to be done in accordance with written procedures. Proposed Rule 1101(b) 
would also require broker-dealers to document any arrangements 
concerning payment for order flow.\102\ These requirements for 
conflicted transactions would be in addition to the current FINRA and 
MSRB best execution rules, although the Commission understands that 
some broker-dealers currently preserve information that allows them to 
support their best execution determinations (e.g., information to 
recreate the pricing information that was available at the time an 
order was received). The Commission believes that these requirements 
would encourage broker-dealers to exercise additional diligence with 
respect to conflicted transactions in light of the incentives to handle 
conflicted transactions in a manner that prioritizes their own 
interests over their customers' interests, and are part of the 
Commission's ongoing efforts to protect investors when conflicts of 
interest exist.
---------------------------------------------------------------------------

    \102\ See infra section IV.C.2 (discussing the proposed 
requirement to document payment for order flow arrangements).
---------------------------------------------------------------------------

    Proposed Rule 1101(c) would require broker-dealers to review the 
execution quality of customer orders at least quarterly, and how such 
execution quality compares with the execution quality that might have 
been obtained from other markets, and revise their best execution 
policies and procedures, including order handling practices, 
accordingly. The Commission understands that, currently, broker-
dealers' reviews of execution quality vary in rigor,\103\ and the 
Commission preliminarily believes that the proposed review requirement 
would further ensure that broker-dealers evaluate the effectiveness of 
their current order handling practices and enable broker-dealers to 
make informed judgments regarding whether their policies and procedures 
or practices need to be modified. This review requirement would also 
apply to a broader range of broker-dealers than FINRA's rule that 
governs the review of execution quality,\104\ and would be in addition 
to the current MSRB best execution rule.
---------------------------------------------------------------------------

    \103\ See infra note 210 (discussing FINRA exam findings 
relating to execution quality reviews).
    \104\ See infra section IV.D (discussing the proposed execution 
quality review requirement, including the scope of the proposed 
requirement).
---------------------------------------------------------------------------

    Proposed Rule 1101(d) would exempt an introducing broker that 
routes customer orders to an executing broker from separately complying 
with proposed Rules 1101(a), (b), and (c), so long as the introducing 
broker establishes, maintains, and enforces policies and procedures 
that require the introducing broker to regularly review the execution 
quality obtained from its executing broker, compare it with the 
execution quality it might have obtained from other executing brokers, 
and revise its routing practices accordingly. This provision would 
provide a tailored exemption from certain provisions of proposed 
Regulation Best Execution for broker-dealers that do not make decisions 
or exercise discretion regarding the manner in which their customer 
orders are handled and executed, beyond their determinations to engage 
the services of executing brokers. This exemption would be provided to 
a narrower group of broker-dealers than similar exemptions provided by 
FINRA and the MSRB, and would require additional specific policies and 
procedures that are not required under the FINRA and MSRB rules.\105\
---------------------------------------------------------------------------

    \105\ See infra section IV.E (describing the applicability of 
the proposed exemption under proposed Rule 1101(d)).
---------------------------------------------------------------------------

    Proposed Rule 1102 would require each broker-dealer to review and 
assess the design and overall effectiveness of their best execution 
policies and procedures, including their order handling practices, on 
at least an annual basis, and document such review and assessment in an 
annual report that would be provided to the broker-dealer's governing 
body. The Commission understands that, currently, broker-dealers 
periodically review their policies and procedures (including those 
related to best execution), although the frequency of review may 
vary.\106\ However, proposed Rule 1102 would require the broker-dealer 
to review and assess the policies and procedures it established under 
proposed Regulation Best Execution, and the Commission believes that 
these requirements would help ensure the effectiveness of broker-
dealers' best execution policies and procedures that are adopted 
pursuant to the proposed rules.
---------------------------------------------------------------------------

    \106\ See infra notes 222, 223, and 224 and accompanying text 
(describing the minimum frequency standards for review of execution 
quality under the FINRA and MSRB rules and how broker-dealers may 
need to review execution quality more frequently than the minimum 
requirements depending on the circumstances).
---------------------------------------------------------------------------

    Finally, the Commission is proposing to amend Rule 17a-4 under the 
Exchange Act\107\ to include record preservation requirements for 
records made under proposed Regulation Best Execution.
---------------------------------------------------------------------------

    \107\ 17 CFR 240.17a-4.
---------------------------------------------------------------------------

    The Commission believes that proposed Regulation Best Execution 
would also enhance its oversight of

[[Page 5451]]

broker-dealers through the broker-dealers' best execution policies and 
procedures required by the proposal, as well as broker-dealers' 
documentation of their compliance with proposed Regulation Best 
Execution.\108\
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    \108\ The Commission believes that Proposed Regulation Best 
Execution will also provide certain investor protection benefits. As 
discussed in Section V below, by having its own rule, the Commission 
will be able to seek certain remedies and other sanctions for 
violations of the Commission rule best execution violations that are 
not necessarily available under the current regulatory framework. In 
general, a best execution rule promulgated pursuant to the Exchange 
Act will expand and enhance the Commission's flexibility when 
pursuing best execution violations and produce efficiencies 
resulting from that greater flexibility.
---------------------------------------------------------------------------

Request for Comment
    The Commission requests comment on its understanding of broker-
dealers' current best execution practices, and in particular:
    1. Do commenters agree with the Commission's understanding that 
some broker-dealers currently incorporate various best execution 
factors from the FINRA and MSRB best execution rules in their policies 
and procedures? Please explain whether, and the extent to which, 
broker-dealers currently incorporate those factors in their policies 
and procedures. For example, do broker-dealers currently incorporate 
all of the best execution factors from the FINRA and MSRB rules in 
their policies and procedures?
    2. Do commenters agree with the Commission's understanding that 
some broker-dealers currently preserve information that allows them to 
support their best execution determinations, such as information to 
recreate the pricing information that was available at the time of an 
execution? Please explain whether broker-dealers currently preserve 
information that allows them to support their best execution 
determinations, and if so, the type of information that they preserve.
    3. Do commenters agree with the Commission's understanding that, 
currently, broker-dealers' reviews of execution quality vary in rigor? 
Please explain how broker-dealers currently conduct execution quality 
reviews of customer orders.
    4. Do commenters agree with the Commission's understanding that, 
currently, broker-dealers periodically review their best execution 
policies and procedures, but with varying frequency? Please describe 
how frequently broker-dealers currently review their best execution 
policies and procedures.

IV. Discussion of Proposed Regulation Best Execution

    As discussed in this section IV below, the Commission is proposing 
Regulation Best Execution, which is consistent with the FINRA and MSRB 
best execution rules in many respects and is different from those rules 
in some respects. Proposed Regulation Best Execution would not affect a 
broker-dealer's obligation to comply with the FINRA or MSRB best 
execution rule. Accordingly, a broker-dealer would be required to 
comply with proposed Regulation Best Execution, in addition to their 
existing obligations to comply with the FINRA and MSRB best execution 
rules, as applicable.\109\
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    \109\ For example, where proposed Regulation Best Execution 
would impose additional or more specific requirements as compared to 
the FINRA or MSRB rules, a broker-dealer would be required to comply 
with the additional or more specific requirements under the proposed 
rules. See, e.g., infra section IV.A (discussing the application of 
proposed Rule 1100 to transactions with sophisticated municipal 
market professionals, which are exempted from the MSRB's best 
execution rule). Similarly, where FINRA or the MSRB impose more 
specific requirement than proposed Regulation Best Execution, a 
broker-dealer would be required to continue to comply with those 
requirements of FINRA and the MSRB. See, e.g., infra note 223 and 
accompanying text (discussing the requirement under FINRA Rule 5310 
for broker-dealers to conduct at least a quarterly review of 
execution quality).
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A. Proposed Rule 1100--The Best Execution Standard

    Proposed Rule 1100 would set forth the best execution standard for 
broker-dealers.\110\ Specifically, proposed Rule 1100 states that, in 
any transaction for or with a customer, or a customer of another 
broker-dealer, a broker-dealer, or a natural person who is an 
associated person of a broker-dealer,\111\ must use reasonable 
diligence to ascertain the best market for the security, and buy or 
sell in such market so that the resultant price to the customer is as 
favorable as possible under prevailing market conditions.\112\
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    \110\ For purposes of this release and proposed Regulation Best 
Execution, ``broker-dealer'' refers to a broker, dealer, government 
securities broker, government securities dealer, and municipal 
securities dealer, unless specifically indicated otherwise.
    \111\ Section 3(a)(18) of the Exchange Act defines ``person 
associated with a broker or dealer'' to mean any partner, officer, 
director, or branch manager of the broker or dealer (or any person 
occupying a similar status or performing similar functions), any 
person directly or indirectly controlling, controlled by, or under 
common control with the broker or dealer, or any employee of the 
broker or dealer. 15 U.S.C. 78c(a)(18). Any person associated with a 
broker or dealer whose functions are solely clerical or ministerial 
is not included in the meaning this term for purposes of section 
15(b) the Exchange Act (other than paragraph 6 thereof). See id. 
Proposed Rule 1100 would apply to a natural person who is an 
associated person of a broker-dealer, and would avoid the 
application of proposed Rule 1100 to all associated persons of a 
broker-dealer, as all associated persons would capture affiliated 
entities of the broker-dealer and could extend the application of 
proposed Rule 1100 to entities that are not themselves broker-
dealers.
    \112\ FINRA Rule 5310.09(a) states that ``[n]o member can 
transfer to another person its obligation to provide best execution 
to its customers' orders.'' The standard proposed by the Commission 
in Rule 1100 is consistent with the FINRA rule, and would not 
establish any exception to allow a broker-dealer to transfer its 
obligation to provide best execution to another person.
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    The proposed best execution standard would apply to securities 
transactions for or with a broker-dealer's own customers, as well as 
securities transactions for or with customers of another broker-dealer. 
A broker-dealer that initially receives customer orders may not 
necessarily be the broker-dealer that engages in transactions for or 
with those orders. Instead, the broker-dealer receiving the customer 
orders may utilize the services of another broker-dealer to engage in 
transactions for or with those orders (e.g., a wholesaler, executing 
broker-dealer, or clearing firm that handles or executes those orders). 
Even though the other broker-dealer does not have a direct relationship 
with the customers of the receiving broker-dealer, the other broker-
dealer (or natural persons who are associated persons of that broker-
dealer) would be required to comply with the proposed best execution 
standard because it would be engaged in transactions for or with a 
customer.
    In addition, the proposed best execution standard would apply to 
transactions for or with a customer, regardless of whether the broker-
dealer is transacting for or with the customer on an agency basis or in 
a principal capacity.\113\ For example, the proposed best execution 
standard would apply to broker-dealers that internalize their 
customers' orders, as well as to wholesalers or clearing firms that 
trade

[[Page 5452]]

as principal with the customer orders routed to them from other broker-
dealers.
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    \113\ The proposed application of the standard to both agency 
and principal trades is consistent with FINRA and MSRB rules. See 
FINRA Rule 5310(e) (stating that the best execution obligations in 
FINRA Rule 5310(a)-(d) exist not only where the broker-dealer acts 
as agent for the account of its customer but also where transactions 
are executed as principal); MSRB Rule G-18(c) (stating that the best 
execution obligations in MSRB Rule G-18(a)-(b) apply to transactions 
in which the broker-dealer is acting as agent and transactions in 
which the broker-dealer is acting as principal). In addition, the 
application of the existing duty of best execution in both agency 
and principal transactions is well-established in common law. See, 
e.g., Newton, 135 F.3d 266, 270 (3d Cir.), cert. denied, 525 U.S. 
811 (1998); E.F. Hutton & Co., Exchange Act Rel. No. 25887, 49 SEC. 
829, 832 (1988) (``A broker-dealer's determination to execute an 
order as principal or agent cannot be `a means by which the broker 
may elect whether or not the law will impose fiduciary standards 
upon him in the actual circumstances of any given relationship or 
transaction.' '') (citations omitted).
---------------------------------------------------------------------------

    Proposed Rule 1100 would provide exemptions from the best execution 
standard for a broker-dealer, or a natural person who is an associated 
person of a broker-dealer, when the broker-dealer is (i) quoting a 
price for a security where another broker-dealer routes a customer 
order for execution against that quote or (ii) an institutional 
customer, exercising independent judgment, executes its order against 
the broker-dealer's quotation.\114\ These exemptions distinguish 
between a broker-dealer that is acting solely as the buyer or seller of 
securities (it would be exempt) from a broker-dealer that is accepting 
order flow from another broker-dealer or institutional customer for the 
purpose of facilitating the handling and execution of those orders (it 
would not be exempt).
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    \114\ The first proposed exemption is consistent with FINRA Rule 
5310.04, which states that a broker-dealer's duty to provide best 
execution does not apply in circumstances when another broker-dealer 
is simply executing a customer order against the broker-dealer's 
quote, and MSRB Rule G-18.05, which states that a broker-dealer's 
duty to provide best execution does not apply in circumstances when 
the other broker-dealer is simply executing a customer transaction 
against the broker-dealer's quote. The second proposed exemption is 
new. Like the first proposed exemption, the second would exempt a 
broker-dealer that is acting solely as a buyer or seller of a 
securities. However, under the second exemption, the broker-dealer 
would be acting solely as a buyer or seller of securities in 
transactions directly with an institutional customer. In the 
corporate and municipal bond and government securities markets, for 
example, institutional customers often handle and execute their own 
orders. Institutional customers in these markets commonly request 
prices from broker-dealers for particular securities (prices for any 
given security are often not quoted and made widely available) and 
exercise their own discretion concerning the execution of a 
particular transaction. In these instances, a broker-dealer is 
simply responding to the institutional customer's request (e.g., 
through widely known request for quote (``RFQ'') mechanisms) and the 
institutional customer is exercising independent discretion over the 
handling and execution of its orders. Accordingly, the Commission 
believes that the broker-dealer in these circumstances should be 
exempted from the best execution standard under proposed Rule 1100. 
However, in these circumstances, the broker-dealer would still be 
subject, if applicable, to FINRA Rule 2121 and MSRB Rule G-30 
concerning fair prices and the fairness and reasonableness of 
commission rates and markups or markdowns. See FINRA Rule 2121; MSRB 
Rule G-30.
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    Proposed Rule 1100 would also provide a third exemption from the 
best execution standard for a broker-dealer or a natural person who is 
an associated person of a broker-dealer, when the broker-dealer 
receives an unsolicited instruction from a customer to route that 
customer's order to a particular market for execution and the broker-
dealer processes that customer's order promptly and in accordance with 
the terms of the order. In this scenario, the customer has determined 
the market where it wants to execute its order and is not relying on 
its broker-dealer to determine the best market for that order.\115\
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    \115\ This exemption is consistent with FINRA and MSRB rules. 
See FINRA Rule 5310.08 (stating that if a member receives an 
unsolicited instruction from a customer to route that customer's 
order to a particular market for execution, the member is not 
required to make a best execution determination beyond the 
customer's specific instruction); MSRB Rule G-18.07 (stating that if 
a dealer receives an unsolicited instruction from a customer 
designating a particular market for the execution of the customer's 
transaction, the dealer is not required to make a best-execution 
determination beyond the customer's specific instruction).
---------------------------------------------------------------------------

    Under proposed Rule 1100, the term ``market'' could include broker-
dealers (e.g., a broker-dealer's principal trading desk), exchange 
markets, markets other than exchange markets, and any other venues that 
emerge as markets evolve. The term ``market'' also could encompass the 
wide range of mechanisms operated by any given market that a broker-
dealer may use to transact for or with customers. For example, markets 
may include different execution protocols, such as limit order books 
(some of which may provide for midpoint liquidity), floor auction 
facilities, or electronic auction mechanisms. This description of 
``market'' is expansive and would require a broker-dealer to take into 
consideration a broad range of potential trading and market centers and 
venues that may provide the best market for customers' orders so that 
the resulting prices to the customers are as favorable as possible 
under prevailing market conditions.\116\
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    \116\ This expansive description of ``market'' is consistent 
with how FINRA and the MSRB describe the term in their rules, and 
therefore should be familiar to broker-dealers. In particular, FINRA 
and the MSRB also broadly construe the term ``market'' for purposes 
of their best execution rules. See FINRA Rule 5310.02 (stating that 
``market'' encompasses a variety of different venues, including, but 
not limited to, market centers that are trading a particular 
security); MSRB Rule G-18.04 (stating that ``market'' encompasses a 
variety of different venues, including but not limited to broker's 
brokers, alternative trading systems or platforms, or other 
counterparties, which may include the dealer itself as principal). 
MSRB Rule G-18.04 also states that the term market ``is to be 
construed broadly, recognizing that municipal securities currently 
trade over the counter without a central exchange or platform. This 
expansive interpretation is meant both to inform dealers as to the 
breadth of the scope of venues that must be considered in the 
furtherance of their best-execution obligations and to promote fair 
competition among dealers (including broker's brokers), alternative 
trading systems and platforms, and any other venue that may emerge, 
by not mandating that certain trading venues have less relevance 
than others in the course of determining a dealer's best-execution 
obligations.'' Pursuant to FINRA guidance, broker-dealers are also 
expected to consider new markets that become available as venues to 
which the broker-dealer could potentially route customer orders for 
execution. See FINRA Regulatory Notice 15-46, at 5. In doing so, 
broker-dealers should consider the execution quality of venues to 
which they are not connected and determine whether they should 
connect to new markets. See id., at 4.
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    Proposed Rule 1100 would codify, in a Commission rule, a best 
execution standard that is consistent with how the Commission and the 
courts have described the duty of best execution over the years.\117\ 
The proposed standard is also consistent with the best execution 
standards under FINRA Rule 5310 \118\ and MSRB Rule G-18.\119\ However, 
with respect to municipal securities, while MSRB Rule G-48 exempts 
transactions with sophisticated municipal market participants 
(``SMMPs'') \120\ from the MSRB best

[[Page 5453]]

execution rule, proposed Regulation Best Execution does not include a 
similar exemption for SMMPs from Rule 1100.\121\ Unlike the MSRB rules, 
proposed Rule 1100 is designed to apply broadly to transactions in all 
securities and is not limited to transactions in municipal securities. 
The Commission also preliminary believes that customers that meet the 
MSRB's definition of SMMP would benefit from the protections offered by 
proposed Regulation Best Execution, just as customers that do not meet 
the definition of SMMP or customers that transact in securities other 
than municipal securities would.\122\ At the same time, the Commission 
believes that proposed Regulation Best Execution contains several 
provisions that would mitigate the burdens on the broker-dealers that 
engage in transactions for or with customers that meet the MSRB's 
definition of SMMP, and proposed Regulation Best Execution would result 
in similar treatment as MSRB Rule G-18 and G-48 in many instances. For 
example, as discussed above in this section, a broker-dealer would be 
exempt from proposed Rule 1100 if an institutional customer is 
exercising independent judgment and executing its orders against a 
broker-dealer's quotation, and is not providing the broker-dealer with 
orders for handling and execution. Additionally, a broker-dealer would 
be exempt from proposed Rule 1100 if a customer gave the broker-dealer 
an unsolicited instruction to send its order to a particular market and 
the broker-dealer processes that customer's order promptly and in 
accordance with the terms of the order. Finally, as discussed in 
section IV.B.2 below, if a customer provides the broker-dealer with 
other instructions concerning the handling of its orders, the broker-
dealer's compliance with the best execution standard would be informed 
by such customer instructions.
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    \117\ See, e.g., Regulation NMS Adopting Release, supra note 21, 
70 FR 37538 (stating that the duty of best execution requires, among 
other things, a broker-dealer to execute customers' trades at the 
most favorable terms reasonably available under the circumstances, 
i.e., at the best reasonably available price); Newton, supra note 8, 
135 F.3d at 270 (noting that a broker-dealer's duty of undivided 
loyalty to its customer requires that it ``seek to obtain for its 
customer orders the most favorable terms reasonably available under 
the circumstances''). As discussed below throughout this section IV, 
the Commission is also proposing requirements designed to help 
ensure compliance with the proposed best execution standard.
    \118\ FINRA Rule 5310(a)(1) provides that, in any transaction 
for or with a customer or a customer of another broker-dealer, a 
member and persons associated with a member shall use reasonable 
diligence to ascertain the best market for the subject security and 
buy or sell in such market so that the resultant price to the 
customer is as favorable as possible under prevailing market 
conditions. FINRA Rule 5310 applies to transactions by any FINRA 
member in government securities. See FINRA Rule 0150(c).
    \119\ MSRB Rule G-18(a) provides that, in any transaction in a 
municipal security for or with a customer or a customer of another 
broker, dealer, or municipal securities dealer (``dealer''), a 
dealer must use reasonable diligence to ascertain the best market 
for the subject security and buy or sell in that market so that the 
resultant price to the customer is as favorable as possible under 
prevailing market conditions.
    \120\ MSRB Rule D-15 defines SMMP by three requirements: the 
nature of the customer; a determination of sophistication by the 
dealer; and an affirmation by the customer. Specifically, the rule 
states that the customer must be: (i) a bank, savings and loan 
association, insurance company, or registered investment company; 
(ii) an investment adviser registered either with the Commission 
under section 203 of the Investment Adviser Act of 1940 or with a 
state securities commission; or (iii) any other person or entity 
with total assets of at least $50 million. To achieve a 
determination of customer sophistication, the broker-dealer must 
have a reasonable basis to believe that the customer is capable of 
evaluating investment risks and market value independently, both in 
general and with regard to particular transactions and investment 
strategies in municipal securities. Finally, the customer must 
affirmatively indicate that it is exercising independent judgment in 
evaluating: (a) the recommendations of the broker-dealer; (b) the 
quality of execution of the customer's transactions by the broker-
dealer; and (c) the transaction price for non-recommended secondary 
market agency transactions as to which (i) the broker-dealer's 
services have been explicitly limited to providing anonymity, 
communication, order matching, and/or clearance function and (ii) 
the broker-dealer does not exercise discretion as to how or when the 
transactions are executed. The affirmation may be given orally or in 
writing, and may be given on a transaction-by-transaction basis, a 
type-of-municipal security basis, or an account-wide basis.
    \121\ Additionally, MSRB Rule G-18.09 states that Rule G-18 does 
not apply to municipal fund securities. While proposed Regulation 
Best Execution does not contain a similar exemption for municipal 
fund securities, the Commission believes that the Commission's 
proposal and MSRB Rule G-18 would result in similar treatment for 
municipal fund securities. Transactions in municipal fund securities 
must be executed directly with the issuer. For this reason, there is 
only one market that can be accessed to fill a customer order in 
this type of security and, therefore, only one way to comply with 
Rule 1100 with respect to the handling and execution of a customer 
order in a municipal fund security.
    \122\ When the Commission approved the MSRB's exemption for 
transactions with SMMPs from its best execution rule, the Commission 
stated that the exemption ``will facilitate transactions in 
municipal securities and help perfect the mechanism of a free and 
open market in municipal securities by avoiding the imposition of 
regulatory burdens if they are not needed.'' See MSRB Best Execution 
Approval Order, supra note 47, 79 FR 73664. For the reasons 
discussed in this section, the Commission believes that the proposed 
rules are designed to mitigate the regulatory burdens for broker-
dealers that transact for or with SMMP customers, while providing 
the benefit of the protections offered by the proposed rules under 
appropriate circumstances.
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Request for Comment
    The Commission requests comment on all aspects of proposed Rule 
1100, and in particular:
    5. Is the proposed best execution standard appropriate? Why or why 
not? Has the Commission identified all the differences between the 
proposed best execution standard and the standards under FINRA Rule 
5310 and MSRB Rule G-18? If not, please explain any differences that 
the Commission has not identified and any potential issues resulting 
from those differences.
    6. Are the differences between the proposed best execution standard 
and the standards under FINRA Rule 5310 and MSRB Rule G-18 appropriate? 
Why or why not?
    7. Do commenters agree that proposed Rule 1100 is consistent with 
prior Commission statements, including those described in section II.B 
above? Why or why not? If not, should the Commission revise any of its 
statements in light of the proposal? Please explain.
    8. Do commenters agree that the proposed best execution standard 
should apply to natural persons who are associated persons of a broker-
dealer? Why or why not?
    9. Are there alternative definitions of ``natural person who is an 
associated person'' that the Commission should use instead? Is the 
application of proposed Rule 1100 appropriately limited to ``a natural 
person who is an associated person'' of a broker-dealer? Please 
explain.
    10. Would the proposed best execution standard pose any challenges 
or burdens for entities that are dually-registered broker-dealers and 
investment advisers? As discussed above,\123\ an investment adviser has 
its own duty to seek best execution of a client's transactions where 
the adviser has the responsibility to select broker-dealers to execute 
client trades. What effect, if any, would the proposed best execution 
standard have on investment advisers and their duty to seek best 
execution?
---------------------------------------------------------------------------

    \123\ See supra note 11.
---------------------------------------------------------------------------

    11. Are there elements of an investment adviser's duty to seek best 
execution that are relevant in assessing the proposed best execution 
standard for a broker-dealer?
    12. Is it appropriate to provide an exemption from the proposed 
best execution standard to a broker-dealer when another broker-dealer 
is executing a customer order against the first broker-dealer's quote? 
Why or why not?
    13. Is it appropriate to provide an exemption from the proposed 
best execution standard to a broker-dealer when an institutional 
customer, exercising independent judgment, executes its order against 
the broker-dealer's quotations? Why or why not?
    14. Should the Commission define ``institutional customer'' for 
purposes of proposed Rule 1100? If so, how should ``institutional 
customer'' be defined? For example, should the Commission define 
``institutional customer'' as any person that is a qualified 
institutional buyer (``QIB'') as defined in Rule 144A under the 
Securities Act of 1933?\124\ Why or why not?
---------------------------------------------------------------------------

    \124\ 17 CFR 230.144A (defining ``QIB'' to mean a variety of 
entities such as insurance companies, investment companies 
registered under the Investment Company Act of 1940, and investment 
advisers registered under the Investment Advisers Act of 1940, among 
others, that in the aggregate own or invest on a discretionary basis 
at least $100 million).
---------------------------------------------------------------------------

    15. Should the Commission define ``institutional customer'' to 
include a broader set of institutional customers than the QIB 
definition, such as those entities that are included in the FINRA 
definition of ``institutional account'' under FINRA Rule 4512(c)?\125\ 
Please explain.
---------------------------------------------------------------------------

    \125\ FINRA Rule 4512(c) defines ``institutional account'' as 
the account of: (1) a bank, savings and loan association, insurance 
company or registered investment company; (2) an investment adviser 
registered either with the Commission under section 203 of the 
Investment Advisers Act or with a state securities commission (or 
any agency or office performing like functions); or (3) any other 
person (whether a natural person, corporation, partnership, trust or 
otherwise) with total assets of at least $50 million.
---------------------------------------------------------------------------

    16. Should the exemption concerning institutional customers in 
proposed Rule 1100 be limited to situations where the broker-dealer 
seeking the exemption has a reasonable basis to believe that the 
institutional customer (i) has the capacity to evaluate independently 
the prices offered by the broker-dealer and (ii) is exercising 
independent judgment in deciding to enter into the transaction, such as 
is provided for in FINRA Rule 2121 concerning suitability for 
institutional customers? Please explain.
    17. Should the Commission define ``institutional customer'' for 
purposes of

[[Page 5454]]

the proposed exemption in Rule 1100 to be consistent with the MSRB's 
definition of SMMP? For example, should an institutional customer be 
required to make an affirmation to the broker-dealer concerning its 
exercise of independent judgment in evaluating the quality of execution 
of its transaction with the broker-dealer? Are there other affirmations 
relevant to best execution that should be required?\126\ Please 
explain.
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    \126\ For example, the MSRB's definition of SMMP requires a 
variety of other affirmations (e.g., relating to suitability, access 
to timely information, fair pricing for agency transactions) as 
broker-dealers are also exempt from other non-best execution related 
obligations in transactions with SMMPs pursuant to MSRB Rules G-
48(a)-(d).
---------------------------------------------------------------------------

    18. If an institutional customer affirmation should be required, 
how should such affirmation be provided? Should an institutional 
customer be permitted to provide the affirmation to the broker-dealer 
orally or in writing? Should an institutional customer be permitted to 
provide its affirmation on a trade-by-trade basis, a type-of-
transaction basis, a type-of-security basis (e.g., municipal security, 
including general obligation, revenue, variable rate municipal 
security; corporate bond, including investment grade and non-investment 
grade; OTC equity; NMS security), or an account-wide basis? Please 
explain.
    19. Should a broker-dealer seeking the exemption in proposed Rule 
1100 in transactions with institutional customers be required to 
disclose to the institutional customer that it is not required to 
comply with the best execution standard of proposed Rule 1100 for the 
relevant transactions? Should this disclosure be provided in lieu of or 
in addition to a customer affirmation, if such affirmation should be 
provided by the institutional customer? Please explain. If disclosure 
should be required, what standards should apply to the disclosure? For 
example, should a broker-dealer be required to make a disclosure to the 
institutional customer on a transaction-by-transaction basis? If not, 
what would be the appropriate manner for this disclosure? Please 
explain. Should the disclosure be in writing or should a broker-dealer 
be permitted to provide the disclosure orally to the institutional 
customer? Please explain.
    20. Should the proposed exemption concerning institutional 
customers in Rule 1100 be limited to only certain types of securities 
or only certain types of trading protocols where the institutional 
customer is executing against the broker-dealer's quote? For example, 
should the exemption be limited only to transactions in fixed income 
securities? Should it be limited to transactions that occur through 
multilateral RFQ systems where the institutional customer is able to 
put multiple broker-dealers and other market participants in 
competition when soliciting quotes? Should the exemption be available 
to a broker-dealer that is responding to a request for quote by an 
institutional customer in a bilateral communication, whether over the 
phone or through another communication protocol? Please explain.
    21. Should the Commission provide a broader exemption from the 
proposed best execution standard for a broker-dealer when it engages in 
any transaction for or with institutional customers, similar to the 
exemption provided to broker-dealers under MSRB Rule G-48(e) for SMMPs? 
Please explain why such exemption should or should not be provided.
    22. If a broader exemption for transactions with institutional 
customers should be provided, how should the Commission define 
``institutional customer''? Similar to the requests for comment above, 
should the Commission define institutional customer as ``QIB'' as 
defined in Rule 144A under the Securities Act of 1933, an 
``institutional account'' as defined in FINRA Rule 4512(c), or an SMMP 
as defined in MSRB Rule D-15? Is there another definition that would be 
appropriate? Please explain. Should other conditions apply to the 
exemption, as requested above, such as broker-dealer disclosure to the 
institutional customer, broker-dealer assessment of the institutional 
customer's ability to evaluate the transaction, and institutional 
customer affirmations? Please explain.
    23. What are the typical order handling practices of broker-dealers 
for the municipal bond orders of SMMPs? Do these order handling 
practices vary depending on the type of SMMP under MSRB Rule D-15(a)? 
Do SMMPs typically provide broker-dealers with orders to handle and 
execute, or do SMMPs typically handle and execute their own orders? 
Please explain. Do broker-dealers exercise any discretion in handling 
the orders of SMMPs, whether executing such order on an agency or 
principal basis? Please explain.
    24. Do commenters agree that the proposed rules are designed to 
mitigate the regulatory burdens for broker-dealers that transact for or 
with SMMP customers, while providing the benefit of the protections 
offered by the proposed rules under appropriate circumstances? Why or 
why not?
    25. Should the Commission provide an exemption from the proposed 
best execution standard for a broker-dealer that engages in 
transactions for or with sophisticated market professionals in asset 
classes other than municipal securities? Please explain why such 
exemption should or should not be provided.
    26. Is it appropriate to provide an exemption from the proposed 
best execution standard to a broker-dealer that receives an unsolicited 
instruction from a customer to route that customer's order to a 
particular market for execution, where the broker-dealer processes that 
customer's order promptly and in accordance with the terms of the 
order? Why or why not?
    27. Should the Commission provide an exemption from the proposed 
best execution standard for transactions in municipal fund securities 
(which include interests in 529 college savings plans)? Should such 
exemption only apply to municipal fund securities that are interests in 
529 college savings plans? If the Commission were to provide an 
exemption, should it apply similarly or differently to direct-sold and 
advisor-sold municipal fund securities? Please explain why such 
exemption should or should not be provided.
    28. Should the Commission provide an exemption for mutual fund 
securities, such as equity and corporate bond mutual funds? Should the 
Commission provide an exemption for any other type of security? Please 
explain why such exemption should or should not be provided.
    29. Should the Commission provide any other exemptions from the 
proposed best execution standard? If so, please explain.
    30. Should proposed Regulation Best Execution be the sole best 
execution rule applicable to broker-dealers? Why or why not?

B. Proposed Rule 1101(a)--Best Execution Policies and Procedures

    Proposed Rule 1101(a) would require a broker-dealer that effects 
any transaction for or with a customer or a customer of another broker-
dealer to establish, maintain, and enforce written policies and 
procedures reasonably designed to comply with the best execution 
standard under proposed Rule 1100 (``best execution policies and 
procedures''). As discussed in sections IV.B.1 and 2 below, a broker-
dealer's best execution policies and procedures would be required to 
address: (1) how the broker-dealer would comply with the best execution 
standard; and (2) how the broker-dealer would determine the

[[Page 5455]]

best market for the customer orders that it receives.
    Proposed Rule 1101 does not include specific requirements regarding 
the manner in which broker-dealers would comply with the best execution 
standard. Rather, proposed Rule 1100 would require a broker-dealer to 
use reasonable diligence to ascertain the best market for a security, 
and buy or sell in such market so that the resultant price to the 
customer is as favorable as possible under prevailing market 
conditions, and proposed Rule 1101 would additionally require a broker-
dealer to establish and maintain written policies and procedures 
reasonably designed to comply with the proposed standard. The policies 
and procedures would be required to reflect the elements specified in 
proposed Rule 1101(a) (e.g., best displayed prices, opportunities for 
price improvement including midpoint executions, attributes of 
particular customer orders, the trading characteristics of the 
security). For example, a broker-dealer could have policies and 
procedures that are tailored for different types of customers (e.g., 
retail customers, institutional customers) or for securities with 
different trading characteristics (e.g., NMS stocks, municipal 
securities).\127\ All customer orders must be covered by a broker-
dealer's best execution policies and procedures, and the broker-dealer 
would be required to enforce such policies and procedures.
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    \127\ Similar to this proposal, FINRA and MSRB rules also 
recognize that broker-dealers' best execution practices would be 
tailored for securities with different characteristics. For example, 
FINRA Rule 5310 recognizes that the markets for different securities 
can vary and the standard of reasonable diligence must be assessed 
by examining specific factors, such as the character of the market 
for the security and the accessibility of the quotation. See, e.g., 
FINRA Rules 5310.03 (Best Execution and Debt Securities); 5310.06 
(Orders Involving Securities with Limited Quotations or Pricing 
Information); 5310.07 (Orders Involving Foreign Securities). See 
also MSRB Rule G-18.06 (Securities with Limited Quotations or 
Pricing Information) (recognizing that markets for municipal 
securities may differ dramatically and referring to heightened 
diligence with respect to customer transactions involving securities 
with limited pricing information or quotations).
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    While FINRA's best execution rule does not require broker-dealers 
to have the same type of detailed best execution policies and 
procedures as proposed Rule 1101,\128\ FINRA Rule 3110(b)(1) \129\ 
requires broker-dealers to have procedures for compliance with FINRA 
rules and Federal securities laws and regulations. The MSRB's best 
execution rule reflects a requirement for broker-dealers to have 
policies and procedures for determining the best available market for 
the executions of their customers' transactions.\130\ In addition, MSRB 
Rule G-28 requires broker-dealers to have procedures for compliance 
with MSRB rules and the Exchange Act and rules thereunder.\131\ The 
Commission understands that broker-dealers currently have policies and 
procedures relating to their compliance with the FINRA and MSRB best 
execution rules, as applicable. However, unlike the FINRA and MSRB 
rules, proposed Rule 1101(a)(1) would require broker-dealers' best 
execution policies and procedures to include specific elements, as 
discussed in sections IV.B.1 and 2 below.
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    \128\ FINRA Rule 5310.
    \129\ FINRA Rule 3110(b)(1) requires a FINRA member to 
establish, maintain, and enforce written procedures to supervise the 
types of business in which it engages and the activities of its 
associated persons that are reasonably designed to achieve 
compliance with applicable securities laws and regulations, and with 
applicable FINRA rules. Separately, FINRA Rules 3130(b) and (c) 
require the chief executive officer (or equivalent officer) of a 
FINRA member to certify annually that the member has in place 
processes to establish, maintain, review, test and modify written 
compliance policies and written supervisory procedures reasonably 
designed to achieve compliance with applicable FINRA rules, MSRB 
rules, and Federal securities laws and regulations.
    \130\ MSRB Rule G-18.08 states that a broker-dealer must, at a 
minimum, conduct annual reviews of its policies and procedures for 
determining the best available market for the executions of its 
customers' transactions, including assessing whether its policies 
and procedures are reasonably designed to achieve best execution, 
taking into account the quality of the executions the broker-dealer 
is obtaining under its current policies and procedures, among other 
things.
    \131\ MSRB Rule G-28 requires broker-dealers to adopt, maintain 
and enforce written supervisory procedures reasonably designed to 
ensure that the conduct of the municipal securities activities of 
the broker-dealer and its associated persons are in compliance with 
MSRB rules and the applicable provisions of the Exchange Act and 
rules thereunder.
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1. Proposed Rule 1101(a)(1)--Framework for Compliance With the Best 
Execution Standard
    Proposed Rule 1101(a)(1) would require a broker-dealer's best 
execution policies and procedures to address how it will comply with 
the proposed best execution standard by: (i) obtaining and assessing 
reasonably accessible information, including information about price, 
volume, and execution quality, concerning the markets trading the 
relevant securities; (ii) identifying markets that may be reasonably 
likely to provide material potential liquidity sources (as defined 
above); and (iii) incorporating material potential liquidity sources 
into its order handling practices and ensuring that it can efficiently 
access each such material potential liquidity source.
    Proposed Rule 1101(a)(1)(i) would require a broker-dealer to have 
policies and procedures for obtaining and assessing reasonably 
accessible information regarding the markets trading the relevant 
securities.\132\ Market information is relevant to a broker-dealer's 
best execution analysis,\133\ and the Commission has previously 
identified price and execution quality information as among the factors 
relevant to that analysis.\134\ The Commission believes that the 
ability of markets to attract trading interest as measured by trading 
volume would also be relevant to a broker-dealer's best execution 
analysis, because trading volume can be an indicator of whether 
sufficient interest exists on a particular market to execute customer 
orders.\135\
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    \132\ Proposed Rule 1101 would not establish minimum data 
elements needed to comply with the proposed best execution standard. 
Rather, it would require broker-dealers to establish, maintain, and 
enforce policies and procedures reasonably designed to comply with 
the proposed best execution standard. In implementing its policies 
and procedures (both for non-conflicted and conflicted 
transactions), including policies and procedures that address how 
the broker-dealer would obtain and assess reasonably accessible 
information or how the broker-dealer would obtain and assess other 
information for conflicted transactions (as discussed in section 
IV.C below), a broker-dealer may determine that it is appropriate to 
purchase certain proprietary data. See also supra note 38 
(describing the Commission's statements in the MDI Adopting Release 
that the Commission was not establishing minimum data elements 
needed to achieve best execution nor mandating consumption of 
certain data content, and acknowledging that different market 
participants and different trading applications have different 
market data needs).
    \133\ See, e.g., Order Execution Obligations Adopting Release, 
supra note 10, 61 FR at 48322-23 (stating that a broker-dealer's 
practices for achieving best execution, including the data, 
technology, and types of markets it accesses, must constantly be 
updated as markets evolve); Order Execution and Routing Practice 
Release, supra note 22, 65 FR at 75418 (stating that quotation 
information contained in the public quotation system must be 
considered in seeking best execution of customer orders); MDI 
Adopting Release, supra note 38, 86 FR at 18605 (stating that 
broker-dealers should consider the availability of consolidated 
market data, including the various elements of data content and the 
timeliness, accuracy, and reliability of the data in developing and 
maintaining their best execution policies and procedures).
    \134\ See, e.g., Order Execution Obligations Adopting Release, 
supra note 10, 61 FR 48323 (identifying price improvement and 
execution quality as among the relevant factors for a best execution 
analysis); MDI Adopting Release, supra note 38, 86 FR 18605 
(identifying order size, trading characteristics of the security, 
speed of execution, clearing costs, and the cost and difficulty of 
executing an order in a particular market as relevant factors for a 
best execution analysis).
    \135\ FINRA Rule 5310(a)(1) and MSRB Rule G-18(a) set forth 
similar factors that are relevant to a best execution analysis, 
including the character of the market for the security (e.g., price, 
volatility, relative liquidity, and pressure on available 
communications). However, unlike proposed Rule 1101(a), FINRA and 
MSRB rules do not explicitly require relevant factors to be included 
in a broker-dealer's best execution policies and procedures. The 
considerations in FINRA and MSRB rules concerning volatility, 
relative liquidity, and pressure on available communications could 
be included as part of the best market policies and procedures in 
proposed Rule 1101(a)(2), which requires consideration of the 
trading characteristics of a security. See also FINRA Rule 5310.09 
(requiring a member to conduct regular and rigorous reviews of the 
quality of the executions of its customers' orders); MSRB Rule G-
18.08 (requiring a dealer to conduct periodic reviews of its best 
execution policies and procedures, taking into account the quality 
of the executions the dealer is obtaining under its current policies 
and procedures, among other things).

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[[Page 5456]]

    More specifically with respect to execution quality, the Commission 
believes that the level of competition within a market can impact the 
execution quality of that market and, therefore, broker-dealers should 
generally consider including the level of competition of a market as an 
element of its best execution policies and procedures.\136\
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    \136\ This could include considerations of auction features, 
such as allocation guarantees and fees, the types of market 
participants that can participate in an auction, the breadth of 
participation in an auction, and the accessibility of auction 
processes. This assessment of auction mechanisms would apply to a 
broker-dealer that is handling a customer order that is subject to 
the proposed requirements in the Order Competition Rule (known as a 
``segmented order''). See Securities Exchange Act Release No. 34-
96495 (Dec. 14, 2022). Were the Commission to adopt the proposed 
Order Competition Rule, a broker-dealer that desires to trade as 
principal with a segmented order would, absent an exception, be 
required to expose certain orders to competition through use of 
``qualified auctions,'' as defined by the proposed Order Competition 
Rule. If the proposed Order Competition Rule were adopted, a broker-
dealer when evaluating which qualified auction to use for segmented 
orders under proposed Regulation Best Execution (if adopted) would 
have to have policies and procedures addressing how the broker-
dealer will assess the execution quality of different qualified 
auctions and identify those that are likely to result in the most 
favorable price for customer orders.
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    With respect to price improvement auctions offered by options 
exchanges, while the Commission believes that such auctions could 
provide better executions for customer orders than routing such orders 
to execute at the prevailing best bid or offer on an exchange, the 
selection of a particular price improvement auction could impact the 
execution quality of customer orders. A broker-dealer should generally 
consider addressing in its policies and procedures how it would assess 
the features of options price improvement auctions, how those features 
might affect the level of competition and the execution quality offered 
by the auctions, and whether those features would allow an auction to 
provide the most favorable prices under prevailing market conditions. 
For example, price improvement auctions have features, which have been 
implemented pursuant to proposed rule changes filed with the 
Commission, that allow a wholesaler to trade with much or all of the 
customer orders represented in an auction.\137\ The current fee 
structures for price improvement auctions may also affect market 
participants' determination of whether to compete with a wholesaler for 
customer orders and provide more favorable prices.\138\ As reflected in 
the table below, as of May 25, 2022, the vast majority of options 
exchanges charge market participants that may desire to compete for 
customer orders response fees of $0.50 per contract (for options 
classes priced in $0.01 increments (``penny classes'')) and $1.00 or 
more per contract (for options classes priced in $0.05 increments 
(``non-penny classes'')). These response fees are not charged to 
wholesalers that initiate the price improvement auctions.
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    \137\ See, e.g., Nasdaq ISE, LLC Options 3, Section 13; Nasdaq 
Phlx LLC Options 3, Section 13; Miami International Securities 
Exchange LLC Rule 515A; BOX Exchange LLC Rule 7150; NYSE American 
LLC Rule 971.1NY; Cboe Exchange, Inc. Rule 5.37.
    \138\ See Nasdaq ISE LLC Options 7, Section 3; Nasdaq GEMX LLC 
Options 7, Section 3; Nasdaq MRX LLC Options 7, Section 3.A.; Nasdaq 
Phlx LLC Options 7, Section 6.A.; BOX Exchange LLC Fee Schedule 
Section IV.B.; Miami International Securities Exchange LLC Fee 
Schedule Section (1)(a)(v); NYSE American LLC Options Fee Schedule 
Section I.G.; Cboe Exchange, Inc. Fee Schedule; Cboe EDGX Exchange, 
Inc. Options Fee Schedule n.6.

----------------------------------------------------------------------------------------------------------------
                                                                               Auction  market   Auction  market
                                                                Fees for       maker  response   maker  response
                         Exchange                              initiating       fees  (penny    fees  (non-penny
                                                                 orders           classes)           classes)
----------------------------------------------------------------------------------------------------------------
CBOE......................................................              0.07              0.50              1.05
EDGX......................................................              0.05              0.50              1.05
PHLX......................................................              0.07              0.25              0.40
MRX.......................................................              0.02              0.50              1.10
ISE.......................................................              0.10              0.50              1.10
GEMX......................................................              0.05              0.50              0.94
AMEX......................................................              0.05              0.50              1.05
MIAX......................................................              0.05              0.50              1.10
BOX.......................................................              0.05              0.50              1.15
----------------------------------------------------------------------------------------------------------------

    In addition, allocation guarantees, which permit the wholesaler to 
trade with a significant portion of the customer order, may affect 
competing market participants' determinations of whether and how to 
participate in price improvement auctions.\139\ Likewise, ``auto-
match'' features, which enable the wholesaler to automatically match 
the best prices submitted by competing market participants, may affect 
competing market participants' determinations of whether and how to 
participate in price improvement auctions.\140\
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    \139\ See supra note 137.
    \140\ See, e.g., Nasdaq ISE, LLC Options 3, Section 13(d)(3); 
Nasdaq Phlx LLC Options 3, Section 13(b)(1); Miami International 
Securities Exchange LLC Rule 515A(a)(2)(i)(A); BOX Exchange LLC Rule 
7150(f); NYSE American LLC Rule 971.1NY(c)(1); Cboe Exchange, Inc. 
Rule 5.37(b)(5).
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    As another example, in considering RFQ systems as material 
potential liquidity sources for corporate and municipal bonds and 
government securities, a broker-dealer's policies and procedures could 
assess the filtering practices that may be applied by the RFQ system 
operator and the impact that those practices may have on the execution 
quality of those markets. If an RFQ system applies an automatic filter 
that prevents a broker-dealer that initiates the RFQ from sending that 
request to all participants on the RFQ system, a broker-dealer could 
evaluate the potential impact that may have on that market's execution 
quality. To the extent other RFQ systems do not apply such filters to 
the broker-dealer's request, a broker-dealer could evaluate whether 
these other RFQ systems would be a better alternative for executing 
customer orders, taking into consideration other relevant information 
that the broker-dealer may obtain concerning the RFQ systems.

[[Page 5457]]

    Proposed Rule 1101(a)(1)(ii) would require a broker-dealer's 
policies and procedures to address how it will identify material 
potential liquidity sources, but it would not require a broker-dealer 
to include in its policies and procedures a minimum number of markets 
that it would need to identify as material potential liquidity sources. 
Rather, under proposed Rules 1101(a)(1)(i) and (ii), a broker-dealer 
would be required to follow its policies and procedures in assessing 
reasonably accessible information and determining material potential 
liquidity sources. The Commission believes a broker-dealer's 
identification of material potential liquidity sources could be 
influenced by the nature of the broker-dealer's business operation and 
customer order flow. For example, some broker-dealers focus on the 
handling and execution of institutional orders or large-size orders, 
while some broker-dealers handle and execute retail orders or small-
size orders. These considerations may be relevant to the types of 
markets or market information that the broker-dealer assesses for 
purposes of identifying material potential liquidity sources. The 
Commission further believes a broker-dealer's assessment of market 
information and identification of material potential liquidity sources 
could vary depending on the trading characteristics of the relevant 
security, the level of transparency in the applicable market, and 
accessibility of a market, including the cost of maintaining 
connectivity, receiving market data, and transacting on the market. For 
example, if a market charges unreasonably high fees for connectivity, 
market data, or transactions, a broker-dealer could consider whether 
such market's information is reasonably accessible and whether such 
market should be identified as a material potential liquidity 
source.\141\
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    \141\ The Commission has previously described a non-exhaustive 
list of factors that may be relevant to broker-dealers' best 
execution analysis. These factors include the size of the order, 
speed of execution, clearing costs, the trading characteristics of 
the security involved, the availability of accurate information 
affecting choices as to the most favorable market center for 
execution and the availability of technological aids to process such 
information, and the cost and difficulty associated with achieving 
an execution in a particular market center. See supra note 23 and 
accompanying text.
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    While proposed Rules 1101(a)(1)(i) and (ii) do not include an 
exhaustive list of the markets that might be considered material 
potential liquidity sources, or the potential sources of reasonably 
accessible information for different types of securities, some examples 
may be helpful. For the NMS stock market, material potential liquidity 
sources could include exchanges, ATSs, and broker-dealers, including 
market makers and wholesalers. It could also include trading protocols 
and auction mechanisms operated by these entities, including those that 
may provide price improvement opportunities, such as exchange limit 
order books, retail liquidity programs, midpoint liquidity, and 
wholesaler price improvement guarantees. Concerning potential sources 
of reasonably accessible information, the Commission has stated that 
quotation data made publicly available must be considered by a broker-
dealer when seeking best execution of customer orders.\142\ In 
addition, a broker-dealer generally should consider whether 
consolidated trade information, exchange proprietary data feeds, odd 
lot market data, and execution quality and order routing information 
contained in reports made pursuant to Rules 605 and 606 of Regulation 
NMS are readily accessible and needed in order for the broker-dealer to 
identify material potential liquidity sources for its customers' 
orders.\143\
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    \142\ See Order Execution Obligations Adopting Release, supra 
note 10, 61 FR 48324.
    \143\ In a regulatory notice concerning its best execution rule, 
FINRA has provided guidance regarding the relevance of proprietary 
data feeds to a broker-dealer's best execution assessment. See FINRA 
Regulatory Notice 15-46, at 13 n.12 (``[A] firm that regularly 
accesses proprietary data feeds, in addition to consolidated data 
from the Securities Information Processors (SIPs), for its 
proprietary trading, would be expected to also use these data feeds 
to determine the best market under prevailing market conditions when 
handling customer orders.'').
---------------------------------------------------------------------------

    In the OTC equities market, a broker-dealer could consider whether 
ATSs, wholesalers, and other OTC market makers may be potential 
material liquidity sources. With regard to reasonably accessible 
information, a broker-dealer could consider obtaining data from ATSs 
and OTC market makers, in addition to obtaining the data concerning 
transaction prices in OTC equities made publicly available through the 
FINRA Over-the-Counter Reporting Facility (``ORF'').
    In the options market, material potential liquidity sources could 
include the options exchanges and the range of trading protocols and 
auction mechanisms made available by them. These could include quotes 
from market makers resting on exchange limit order books, price 
improvement auctions, liquidity resting between the best bid and offer 
that may be available on exchange limit order books, and floor trading 
facilities that may provide a broker-dealer with the opportunity to 
seek competitive prices from floor participants for larger or complex 
options orders. Other broker-dealers in the options market could also 
represent a type of market that generally should be considered when 
assessing material potential liquidity sources. Specifically, many 
options trades are arranged away from the exchanges by broker-dealers 
and are often brought to the exchanges for order exposure and potential 
price improvement prior to execution.\144\ Because options trades may 
be arranged in this fashion, a broker-dealer would need to consider 
whether other broker-dealers may represent material potential liquidity 
sources for its customers' options orders. With regard to reasonably 
accessible information, a broker-dealer should consider whether 
proprietary data feeds and quarterly Rule 606 order routing reports are 
readily accessible and needed to identify material potential liquidity 
sources, in addition to consolidated trade and quotation data that is 
made publicly available.
---------------------------------------------------------------------------

    \144\ See, e.g., Nasdaq ISE, LLC, Options 3, Section 11(b)-(e) 
(providing exchange functionality for facilitation and solicitation 
auctions, which permit an exchange member to attempt to execute 
large-sized orders it represents as agent against principal interest 
or contra-side orders it has solicited). See also, e.g., Miami 
International Securities Exchange LLC Rule 515A(b); Cboe Exchange, 
Inc. Rule 5.39. The ability to attempt to execute an agency order 
against principal or solicited interest is also permitted in the 
options exchange price improvement auctions. See supra note 137.
---------------------------------------------------------------------------

    In addition, a number of markets could be considered for purposes 
of identifying material potential liquidity sources in the corporate 
and municipal bond markets and government securities markets. These may 
include, for example, ATS and non-ATS electronic trading systems, RFQ 
systems, and other auction mechanisms. Material potential liquidity 
sources in these fixed income markets could also include interdealer 
brokers and other broker-dealers willing to be a counterparty upon 
request.\145\ A broker-dealer's own principal trading desk could also 
be a market for purposes of identifying material potential liquidity 
sources.\146\ With respect to reasonably accessible information, a 
broker-dealer could consider whether to obtain data from ATSs and other 
trading platforms, such as RFQ systems, interdealer brokers, and 
dealers that

[[Page 5458]]

handle and execute customer orders, in addition to obtaining 
consolidated trade data in the corporate bond and municipal bond 
markets made publicly available through FINRA's Trade Reporting and 
Compliance Engine (``TRACE'') and the MSRB's Real-time Transaction 
Reporting System (``RTRS'').\147\ A broker-dealer could also consider 
obtaining relevant data from information sources that do not provide 
execution services, such as price aggregator services or evaluated 
pricing services.
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    \145\ For example, for less widely-traded securities, broker-
dealers that have previously traded such securities or that are 
otherwise known to trade in the securities can be markets for 
certain segments of the fixed income market. See, e.g., MSRB 
Implementation Guidance on MSRB Rule G-18, on Best Execution at Item 
VI.1. (updated as of Feb. 7, 2019).
    \146\ Principal trading with a customer by a broker-dealer would 
be subject to more robust policies and procedures requirements under 
proposed Rule 1101(b).
    \147\ See, e.g., https://www.finra.org/filing-reporting/trace/data and https://emma.msrb.org/.
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    Proposed Rule 1101(a)(1)(iii) would require a broker-dealer to have 
policies and procedures that address how the broker-dealer will 
incorporate material potential liquidity sources into its order 
handling practices and ensure that it can efficiently access each such 
material potential liquidity source. This requirement is designed to 
enhance a broker-dealer's ability meet the proposed best execution 
standard by helping to ensure that the broker-dealer incorporates the 
identified material potential liquidity sources into its order handling 
practices so that it can execute customer orders in those markets as 
appropriate.\148\
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    \148\ FINRA Rule 5310(c) provides that a failure to maintain or 
adequately staff an OTC order room or other department assigned to 
execute customers' orders is not a justification for a broker-dealer 
executing away from the best available market. The provision further 
states that channeling orders through a third party as reciprocation 
for service or business does not relieve a broker-dealer of its 
obligation under FINRA Rule 5310. FINRA Rule 5310(d) also provides 
that a broker-dealer through which orders are channeled and that 
knowingly is a party to an arrangement whereby the initiating member 
has not fulfilled its obligations under FINRA Rule 5310 will be 
deemed to have violated the rule. Similarly, MSRB Rule G-18.02 
states that a broker-dealer's failure to maintain adequate resources 
is not a justification for executing away from the best available 
market. The proposed rules likewise would not exempt these scenarios 
from the proposed best execution standard. The Commission also 
believes that these provisions reflect the concept of efficient 
access to the best market so that the resulting price to a customer 
is as favorable as possible under prevailing market conditions, and 
therefore are consistent with the Commission's proposal to require a 
broker-dealer's best execution policies and procedures to address 
how the broker-dealer will efficiently access material potential 
liquidity sources.
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    Efficient access to each material potential liquidity source, as 
specified by proposed Rule 1101(a)(1)(iii), may require different order 
handling processes and arrangements in different markets, and would not 
necessarily require that a broker-dealer directly connect to a market, 
as it may be efficient in some circumstances for a broker-dealer to use 
another broker-dealer to access a particular market for a customer 
order. However, interposing a third-party between the broker-dealer and 
the market reasonably likely to provide the most favorable price for 
its customer would not be consistent with the concept of ``efficient 
access,'' if the broker-dealer could access the market directly but 
chose instead to access the market indirectly resulting in a worse 
execution for the customer.\149\ As stated above, interpositioning can 
violate the broker-dealer's duty of best execution when it results in 
unnecessary transaction costs at the expense of the customer.\150\
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    \149\ The proposed requirement that a broker-dealer's policies 
and procedures address how it will be able to efficiently access any 
material potential liquidity source is consistent with FINRA and 
MSRB rules concerning interpositioning. Specifically, FINRA Rule 
5310(a)(2) states that no broker-dealer or person associated with a 
broker-dealer may interject a third party between the broker-dealer 
and the best market for the subject security in a manner that would 
be inconsistent with FINRA's best execution standard. FINRA Rule 
5310(b) states that when a broker-dealer cannot execute directly 
with a market but must employ a broker's broker or some other means 
in order to ensure an execution advantageous to the customer, the 
burden of showing the acceptable circumstances for doing so is on 
the broker-dealer. And FINRA Rule 5310.05 states that examples of 
acceptable circumstances are where a customer's order is ``crossed'' 
with another firm that has a corresponding order on the other side, 
or where the identity of the firm, if known, would likely cause 
undue price movements adversely affecting the cost or proceeds to 
the customer. MSRB Rule G-18(b) similarly prohibits a broker-dealer 
from interjecting a third party between itself and the best market 
for the subject security in a manner inconsistent with the MSRB's 
best execution standard. However, unlike proposed Rule 1101(a), 
FINRA and MSRB rules do not require a broker-dealer's best execution 
policies and procedures to explicitly address the incorporation of 
liquidity sources into its order handling practices or the efficient 
access of liquidity sources.
    \150\ See supra notes 29-30 and accompanying text.
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Request for Comment
    The Commission requests comment on all aspects of proposed Rule 
1101(a)(1), and in particular:
    31. Do commenters believe that proposed Rule 1101(a)(1)(i) 
appropriately requires a broker-dealer's policies and procedures to 
reflect how it will obtain and assess reasonably accessible 
information, including information about price, volume, and execution 
quality, concerning the markets trading the relevant securities? Why or 
why not?
    32. What factors would a broker-dealer consider in determining 
whether information is ``reasonably accessible'' for purposes of its 
best execution policies and procedures under the proposed rules? Please 
explain.
    33. Should the Commission specify the types of information that 
would be ``reasonably accessible'' under proposed Rule 1101(a)(1)(i)? 
For example, should the Commission specify that consolidated market 
data distributed by the securities information processors is a type of 
``reasonably accessible'' information under the proposed rule? Please 
explain.
    34. Do commenters agree that proposed Rule 1101(a)(1) is consistent 
with prior Commission statements, including those described in section 
II.B above? Why or why not? If not, should the Commission revise any of 
its statements in light of the proposal? Please explain.
    35. Do commenters believe that proposed Rule 1101(a)(1)(ii) 
appropriately requires a broker-dealer's policies and procedures to 
reflect how it will identify material potential liquidity sources? Why 
or why not?
    36. Do commenters believe the Commission has appropriately defined 
material potential liquidity sources in proposed Rule 1101(a)(1)(ii)? 
Please explain.
    37. What factors would a broker-dealer consider in identifying 
material potential liquidity sources under the proposed rules? Please 
explain.
    38. In identifying material potential liquidity sources, do broker-
dealers consider market connectivity fees and other access and 
transaction fees? Please explain.
    39. Do commenters agree that proposed Rule 1101(a)(1)(ii) is 
consistent with prior Commission statements, including those described 
in section II.B above? Why or why not? If not, should the Commission 
revise any of its statements in light of the proposal? Please explain.
    40. Do commenters believe that proposed Rule 1101(a)(1)(iii) 
appropriately requires a broker-dealer's policies and procedures to 
reflect how it will incorporate material potential liquidity sources 
into its order handling practices? Why or why not?
    41. Do commenters believe that proposed Rule 1101(a)(1)(iii) 
appropriately requires a broker-dealer's policies and procedures to 
reflect how it will ensure efficient access to each material potential 
liquidity source? Why or why not?
    42. What factors would a broker-dealer consider to ensure that it 
can efficiently access a material potential liquidity source under the 
proposed rules? Please explain.
    43. Do commenters agree that proposed Rule 1101(a)(1)(iii) is 
consistent with prior Commission statements, including those described 
in section II.B above? Why or why not? If not, should the Commission 
revise any of its statements in light of the proposal? Please explain.

[[Page 5459]]

    44. Do commenters agree with the Commission's understanding that 
broker-dealers currently have policies and procedures for how they 
comply with the FINRA and MSRB best execution rules, as applicable? 
Please describe the types of best execution policies and procedures 
that broker-dealers currently have. In particular, do broker-dealers' 
policies and procedures address how they obtain and assess reasonably 
accessible information, including information about price, volume, and 
execution quality, concerning the markets trading the relevant 
securities? Do broker-dealers' policies and procedures address how they 
identify material potential liquidity sources? Do broker-dealers' 
policies and procedures address how they incorporate material potential 
liquidity sources into their order handling practices, and how they 
ensure that they can efficiently access each such material potential 
liquidity source?
    45. Do commenters believe that the Commission should provide 
staggered compliance dates for proposed Rule 1101(a)(1) for broker-
dealers of different sizes, if the Commission adopts proposed 
Regulation Best Execution? For example, should the Commission provide 
longer compliance dates for smaller broker-dealers? If so, should the 
Commission define a smaller broker-dealer as a broker-dealer that 
qualifies as a ``small entity'' under the Regulatory Flexibility Act 
pursuant to 17 CFR 240.0-10(c) for this purpose? \151\ Or should the 
Commission define a smaller broker-dealer in a different way? Please 
explain.
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    \151\ 17 CFR 240.0-10(c) defines a smaller broker-dealer as one 
that: (1) had total capital (net worth plus subordinated 
liabilities) of less than $500,000 on the date in the prior fiscal 
year as of which its audited financial statements were prepared 
pursuant to Rule 17a-5(d) under the Exchange Act, or, if not 
required to file such statements, had total capital (net worth plus 
subordinated liabilities) of less than $500,000 on the last business 
day of the preceding fiscal year (or in the time that it has been in 
business, if shorter); and (2) is not affiliated with any person 
(other than a natural person) that is not a small business or small 
organization.
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2. Proposed Rule 1101(a)(2)--Best Market Determination
    Proposed Rule 1101(a)(2) would require a broker-dealer's best 
execution policies and procedures to address how it will determine the 
best market and make routing or execution decisions for customer orders 
that it receives by: (i) assessing reasonably accessible and timely 
information with respect to the best displayed prices, opportunities 
for price improvement, including midpoint executions, and order 
exposure opportunities that may result in the most favorable price; 
(ii) assessing the attributes of customer orders and considering the 
trading characteristics of the security, the size of the order, the 
likelihood of execution, the accessibility of the market, and any 
customer instructions in selecting the market most likely to provide 
the most favorable price; and (iii) in determining the number and 
sequencing of markets to be assessed, reasonably balancing the 
likelihood of obtaining better prices with the risk that delay could 
result in worse prices.
    In determining the best market for customer orders, the assessment 
of reasonably accessible and timely information \152\ with respect to 
the best displayed prices and opportunities for price improvement would 
vary depending on the trading characteristics of particular securities. 
Displayed prices can provide a useful reference price for a broker-
dealer to consider when assessing the best market in which to execute 
customer orders, particularly in an asset class where there are 
consolidated displays of the best prices across the market, or for 
securities that are considered liquid and have firm prices that are 
accessible. Accordingly, under proposed Rule 1101(a)(2)(i), a broker-
dealer's policies and procedures would be required to address how it 
will assess reasonably accessible and timely information with respect 
to the best displayed prices in any given market or security.\153\ In 
addition, the Commission has previously stated that, when reviewing 
their procedures for seeking to obtain best execution, ``broker-dealers 
must take into account price improvement opportunities, and whether 
different markets may be more suitable for different types of orders or 
particular securities.'' \154\ Accordingly, under proposed Rule 
1101(a)(2)(i), a broker-dealer's policies and procedures would be 
required to specifically address how it will assess price improvement 
opportunities,\155\ including midpoint execution opportunities.\156\
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    \152\ See supra notes 132 and 141 and accompanying text.
    \153\ For fixed income securities, FINRA has also recognized 
that while a broker-dealer should consider using displayed prices on 
electronic trading platforms as part of its reasonable diligence in 
determining the best market for a security, executing a customer 
order at the displayed price may not necessarily fulfill the broker-
dealer's best execution obligations. See FINRA Regulatory Notice 15-
46, at 8 (stating that displayed prices on electronic trading 
platforms may not be the presumptive best prices, especially for 
securities that are illiquid or trade infrequently). Accordingly, 
the Commission believes that the concept of ``best displayed 
prices'' is applicable to the fixed income securities market.
    \154\ Regulation NMS Adopting Release, supra note 21, 70 FR 
37538. See also Order Execution Obligations Adopting Release, supra 
note 10, 61 FR 48323 n.357 (stating that any evaluation of price 
improvement opportunities would have to consider not only the extent 
to which orders are executed at prices better than the prevailing 
quotes, but also the extent to which orders are executed at inferior 
prices).
    \155\ Price improvement is the execution of an order at a price 
that is better than the best displayed buy or sell prices in the 
market, and an execution between the best displayed bid and offer is 
a form of price improvement. See, e.g., Order Execution Obligations 
Adopting Release, supra note 10, 61 FR 48323 n.357 (stating that 
price improvement means the difference between execution price and 
the best quotes prevailing in the market at the time the order 
arrived at the market or market maker); FINRA Rule 5310.09(b)(1) 
(describing price improvement opportunities to mean the difference 
between the execution price and the best quotes prevailing at the 
time the order is received by the market).
    \156\ These executions occur at the midpoint of the best 
displayed buy and sell prices and may represent a significant amount 
of price improvement as compared to executing at the best displayed 
prices for customers seeking to trade immediately.
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    In addition to displayed prices and opportunities for price 
improvement, there may be other order exposure opportunities for 
customer orders (e.g., order handling and execution protocols that may 
provide exposure to a competitive process for customer orders). For 
example, markets that operate limit order books and enable broker-
dealers to post customer limit orders could represent a best market for 
customer orders. These markets may provide an opportunity for 
executions at the prevailing best bid for customer buy orders or at the 
prevailing best offer for customer sell orders, rather than executing 
customer orders by crossing the prevailing bid-offer spread. As another 
example, auctions may offer an opportunity to expose marketable 
customer orders to prices that are more favorable than prices that 
would be achieved by crossing the spread. Accordingly, under proposed 
Rule 1101(a)(2)(i), a broker-dealer's policies and procedures would be 
required to address how it will assess order exposure opportunities 
that may result in the most favorable price.
    FINRA Rule 5310(a)(1) and MSRB Rule G-18(a) also identify price 
information as relevant when ascertaining the best market for a 
security.\157\ MSRB Rule G-18(a) also includes as an additional factor: 
the information reviewed to determine the current market for the 
subject security

[[Page 5460]]

or similar securities.\158\ As described in section IV.B.1 above, FINRA 
and MSRB rules reflect requirements for broker-dealers to have policies 
and procedures for compliance with relevant laws and rules. However, 
FINRA and MSRB rules do not require a broker-dealer's policies and 
procedures to specifically address the elements that are relevant to 
its best market determinations. The Commission understands that broker-
dealers currently generally have policies and procedures to ascertain 
the best market for a security, although such policies and procedures 
may need to be updated to address the elements specified in proposed 
Rule 1101(a)(2).
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    \157\ FINRA has also recognized the importance of considering 
midpoint liquidity. See FINRA Regulatory Notice 15-46 at 4 n.25 
(``For example, if a firm obtains price improvement at one venue of 
$0.0005 per share, and it could obtain mid-point price improvement 
at another venue of $0.025 per share, the firm should consider the 
opportunity of such midpoint price improvement on that other venue 
as part of its best execution analysis.''). In addition, FINRA Rule 
5310.09(b)(1) recognizes the relevance of price improvement 
opportunities.
    \158\ This factor is consistent with proposed Rule 1101(a)(2) 
because a broker-dealer's policies and procedures regarding the 
assessment of reasonably accessible and timely best displayed prices 
in the municipal bond market could include an assessment of 
information to determine the current market for the subject security 
or similar securities.
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    For a retail broker-dealer in NMS stocks, its policies and 
procedures for the best market determination could include assessments 
of any assurances from a wholesaler that certain orders routed by the 
retail broker-dealer to the wholesaler would be guaranteed midpoint 
executions by the wholesaler or otherwise exposed to opportunities for 
midpoint executions.\159\ If midpoint executions were not guaranteed by 
a wholesaler, a retail broker-dealer's policies and procedures could 
provide for assessments of whether customer orders would best be 
executed with midpoint liquidity that may be available on an exchange, 
ATS, or other market. Following an assessment of the opportunities for 
midpoint executions, a broker-dealer's policies and procedures could 
provide for an assessment of whether other price improvement 
opportunities might be available, such as from wholesalers,\160\ from 
resting liquidity between the best bid and offer on exchanges, through 
auctions, or otherwise.
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    \159\ If wholesalers do not have a practice of routinely seeking 
and accessing midpoint liquidity as appropriate, the retail broker-
dealer's policies and procedures could address how it takes that 
into account when assessing whether a wholesaler is the best market 
for customer orders.
    \160\ In considering wholesalers, such policies and procedures 
could address how the retail broker-dealer assesses the price 
improvement opportunities that may be available from different 
wholesalers, including an assessment of guarantees for price 
improvement that might be provided by wholesalers and the 
performance of wholesalers, such as the execution quality that the 
retail broker-dealer's customers received from the wholesalers in 
the past.
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    With respect to listed options, the Commission recognizes that 
midpoint liquidity is not as commonly available on options exchanges as 
it is in the NMS stock market.\161\ A broker-dealer's policies and 
procedures nevertheless would be required to address how it will assess 
potential midpoint executions, including to the extent additional 
midpoint liquidity emerges. Following an assessment of potential 
opportunities for midpoint executions, the Commission preliminarily 
believes that a broker-dealer's policies and procedures could provide 
for an assessment of other price improvement opportunities that might 
be available. These price improvement opportunities could include 
potential resting liquidity on exchange limit order books priced 
between the best bid and offer. Price improvement opportunities may 
also be available through exchange price improvement auctions.\162\ A 
broker-dealer's policies and procedures could also address how it will 
assess price improvement opportunities that may be available from 
different wholesalers, including an assessment of guarantees for price 
improvement that might be provided by wholesalers and the performance 
of the wholesalers, including the execution quality that the retail 
broker-dealer's customers received from the wholesalers in the past. In 
doing so, a broker-dealer's policies and procedures could address how 
it will assess the exchanges and exchange mechanisms that wholesalers 
use, why they use those exchanges and mechanisms, and the relative 
competitiveness of those exchanges and mechanisms in light of fee 
differentials and functionality that can affect competitive responses 
and facilitate internalization.
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    \161\ Given the lack of order types concerning midpoint 
liquidity, midpoint liquidity is not prevalent in the listed options 
market.
    \162\ Price improvement auctions currently available on options 
exchanges are two-sided and thus may not be directly accessible by 
many retail broker-dealers because they do not commit capital to 
trade with customers. Specifically, options price improvement 
auctions guarantee that a customer order will be executed by 
requiring the broker-dealer initiating the auction to commit to 
trade in a principal capacity with the customer order at a certain 
price, with exposure to potential price improvement from competitive 
responders. See, e.g., Nasdaq ISE, LLC Options 3, Section 13; Nasdaq 
Phlx LLC Options 3, Section 13; Miami International Securities 
Exchange LLC Rule 515A; BOX Exchange LLC Rule 7150; NYSE American 
LLC Rule 971.1NY; Cboe Exchange, Inc. Rule 5.37. However, to the 
extent one-sided auctions (or other trading protocols providing a 
competitive process for exposing customer orders for the most 
favorable price) exist or emerge, a broker-dealer's policies and 
procedures generally should consider addressing whether such price 
improvement opportunities represent the best market for customer 
orders when making a routing or execution decision.
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    The policies and procedures requirements under proposed Rule 
1101(a)(2)(i) would also apply to wholesalers in the NMS stock and 
options markets. For customer orders that a wholesaler intends to 
execute at prices worse than the midpoint, its policies and procedures 
could provide for an assessment of whether those orders would best be 
executed with midpoint liquidity that may be available on an exchange, 
ATS, or other market. A wholesaler's policies and procedures would also 
need to address how it will consider other opportunities for price 
improvement, which could include liquidity available on exchanges or 
other markets priced between the best bid and offer. Finally, these 
policies and procedures would need to address how the wholesaler will 
assess order exposure opportunities for customer orders that may result 
in the most favorable price for those orders.
    In the corporate and municipal bond markets and government 
securities markets, some broker-dealers display executable prices to 
customers through proprietary customer-facing systems that enable 
customers to transact at the displayed prices. Sometimes these prices 
represent securities that are available on other venues such as ATSs, 
interdealer brokers or otherwise, while other times these prices 
represent securities held in inventory by the broker-dealer. The 
policies and procedures of a broker-dealer in the corporate and 
municipal bond markets and government securities markets would need to 
address how it will assess reasonably accessible and timely information 
with respect to the best displayed prices.
    Information with respect to the best displayed prices would be 
different between the corporate and municipal bond markets and 
government securities markets, and the equities and options markets. In 
particular, timely consolidated best prices are readily accessible in 
the equities and options markets, but there are no similar consolidated 
best prices in the corporate and municipal bond markets and government 
securities markets. A broker-dealer's policies and procedures generally 
should therefore be tailored to reflect best displayed price 
information that is ``reasonably accessible and timely'' in the 
corporate and municipal bond markets and government securities 
markets.\163\
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    \163\ FINRA Rule 5310 also states that ``when quotations are 
available, FINRA will consider the accessibility of such quotations 
when examining whether a member has used reasonable diligence.'' See 
FINRA Rule 5310.03. FINRA has also discussed the importance of a 
broker-dealer evaluating the quality of displayed prices in fixed 
income securities. See FINRA Regulatory Notice 15-46, at 8 (``FINRA 
also notes that prices of a fixed income security displayed on an 
electronic trading platform may not be the presumptive best price of 
that security for best execution purposes, especially for securities 
that are illiquid or trade infrequently. Thus, although a firm 
should consider using this information as part of its reasonable 
diligence in determining the best market for the security, executing 
a customer order at the displayed price may not fulfill the firm's 
obligations, particularly if other sources of information indicate 
the displayed price may not be the best price available. For 
example, if . . . a firm regularly uses a reliable similar security 
analysis to establish prices, that firm may need to use particular 
care before executing a trade at a price that is displayed by a 
trading system if its similar security analysis suggests that the 
displayed price is not reflective of the market.'').

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[[Page 5461]]

    The proposed rule requires policies and procedures of a broker-
dealer in the corporate and municipal bond markets and government 
securities markets to also address how it will assess order exposure 
opportunities that may result in the most favorable price, which could 
include how it will assess RFQ mechanisms. These mechanisms may 
represent the best market for customer orders in light of the trading 
characteristics of these securities, where there may be limited 
quotation or transaction pricing information available. In the absence 
of reliable pricing information, such as bid, offer, or transaction 
data for a security, a competitive auction mechanism may result in the 
most favorable prices reasonably available.
    The policies and procedures of a broker-dealer in the corporate and 
municipal bond markets and government securities markets could also 
assess how its use of RFQ systems may affect the opportunity to expose 
a customer order to the most favorable price. For example, when a 
customer wishes to buy or sell a bond, a broker-dealer may use an 
electronic RFQ system to solicit prices from other participants on the 
system.\164\ In this scenario, a broker-dealer's policies and 
procedures could address how it will use ``filters'' and assess whether 
the use of filters would affect the exposure for customer orders. 
Specifically, a broker-dealer that submits an RFQ on behalf of a 
customer typically has the option of deciding which participants it 
wants to request prices from. While a broker-dealer may use filters in 
a way that is consistent with its duty of best execution, a broker-
dealer could also potentially use filters to prevent certain market 
participants from receiving and participating in the RFQ in a way that 
prevents a customer order from being exposed to opportunities to 
receive the most favorable price (e.g., the participants that might 
have been willing to provide that price may have been precluded from 
the RFQ by the broker-dealer).\165\
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    \164\ It is the Commission's understanding that a broker-dealer 
typically uses RFQ systems to solicit prices when customers are 
selling bonds and that RFQ systems are used less for customers that 
are buying bonds.
    \165\ FINRA and the MSRB have recognized the potential misuse of 
filters as well. See FINRA Regulatory Notice 15-46, at 5 (``If a 
firm uses filters on counterparties or filters on specific 
securities intended to limit accessing bids and offers in those 
securities, they may be used only for a legitimate purpose 
consistent with obtaining the most favorable executions for 
customers, and should be reviewed on a periodic basis and adjusted 
as needed.''). See MSRB Interpretive Guidance Section III.1 (``Some 
dealers may employ `filters,' which generally refer to automated 
tools that allow the dealer to limit its trading, with, for example, 
specific parties or parties with specified attributes with which it 
does not want to interact. If a dealer uses filters on 
counterparties or filters on specific securities intended to limit 
accessing bids or offers in those securities, they may be used only 
for a legitimate purpose consistent with obtaining the most 
favorable executions for non-SMMP customers, and should be reviewed 
on a periodic basis and adjusted as needed. The dealer, accordingly, 
should have policies and procedures in place that govern when and 
how to: reasonably use filters without negatively impacting the 
quality of execution of non-SMMP customer transactions; periodically 
reevaluate their use; and determine whether to lift them upon 
request.'').
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    As another example, the policies and procedures of a broker-dealer 
in the corporate and municipal bond markets and government securities 
markets could address the use of ``last look'' functionalities. When a 
broker-dealer uses an RFQ system, it will often receive responses in 
the form of bids (most common) or offers, and it typically has a 
certain amount of time to decide whether or not it chooses to execute 
the transaction with the best price or to match or improve that price 
in a principal trade with the customer. One effect of this ``last 
look'' practice may be to deter market participants that might 
otherwise vigorously compete to trade with the customer's order from 
submitting their most favorable prices, in light of the possibility 
that the broker-dealer is simply using the RFQ system for price 
discovery and ultimately intends to trade with its customer in a 
principal capacity.\166\ A broker-dealer's policies and procedures 
could address how the broker-dealer uses ``last look'' in connection 
with its RFQs and whether this practice affects the extent to which 
customer orders are exposed to opportunities to receive the most 
favorable price.\167\
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    \166\ See Recommendation Regarding the Practice of Pennying in 
the Corporate and Municipal Bond Markets, SEC Fixed Income Market 
Structure Advisory Committee (June 11, 2019), available at https://www.sec.gov/spotlight/fixed-income-advisory-committee/fimsac-pennying-recommendations.pdf (describing that the abusive use of the 
last look practice ``harms competitiveness'' and ``deters aggressive 
pricing or participation in the auction process by other dealers who 
fear that the submitting dealer is going to `step in front of' their 
winning prices or is otherwise using the auction process solely for 
price discovery purposes''). See also FINRA Regulatory Notice 20-29 
(Aug. 17, 2020) (requesting comment on the impact of the broker-
dealer practice of trading with a customer as principal by matching 
or slightly improving on the best auction responses without 
participating in the auction); MSRB Notice 2018-22 (Sept. 7, 2018) 
(requesting comment on the abusive practice of last look known as 
pennying and stating ``[i]n recent outreach to a broad range of 
market participants, it has been suggested that pennying is 
prevalent in the municipal market and that widespread pennying does 
indeed disincentivize participation in the bid-wanted process, 
discourages bidders from giving their best price in a bid-wanted and 
may impact the efficiency of the market'').
    \167\ Last look practices can also be beneficial to customers. 
For example, there could be situations where the responses received 
by the broker-dealer all reflect prices that the broker-dealer has 
reason to believe are not reflective of the most favorable price. In 
these cases, last look enables the broker-dealer to evaluate those 
prices, determine not to execute the customer order at those prices, 
and either internalize the order at a price the broker-dealer 
believes is the most favorable price or seek additional liquidity 
for the customer order.
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    As a third example, the policies and procedures of a broker-dealer 
in the corporate and municipal bond markets and government securities 
markets could address the response times that a broker-dealer may 
require for responses to an RFQ. Broker-dealers frequently request 
quotes and include a time limit by which all quotes must be received. 
This practice permits market participants time to consider the request 
and provide a price for the security, while establishing a time limit 
so that the broker-dealer can execute its customer order in a timely 
manner. The appropriate amount of time for responses can be influenced 
by important and variable considerations for different customer orders. 
Response times that are too short, however, can prevent market 
participants that may otherwise be interested in competing for the 
customer order from being able to submit prices in response to the 
request. A broker-dealer's policies and procedures could address how 
the broker-dealer uses response times in connection with its RFQs and 
how its use might impact the exposure of a customer order to 
opportunities to receive the most favorable price.
    In addition to assessing reasonably accessible and timely 
information regarding displayed prices and price improvement and order 
exposure opportunities, proposed Rule 1101(a)(2)(ii) would require a 
broker-dealer's policies and procedures to address how it will assess 
the attributes of its customers' orders and consider the trading 
characteristics of the security, the size of the orders, the likelihood 
of execution, the accessibility of the market, and any customer 
instructions in selecting the market most likely to

[[Page 5462]]

provide the most favorable price for the order.
    Not all customer orders have the same attributes or size and a 
broker-dealer's best market determination is affected by the attributes 
of customer orders and the size of customer orders.\168\ For example, 
when a broker-dealer is handling and executing large orders, it may 
likely be more sensitive to the possibility of information leakage and 
price impact that could harm the execution quality of such orders. 
Therefore, the broker-dealer may make a best market determination 
designed to minimize the risk of information leakage and price impact 
concerns.\169\ In contrast, a broker-dealer handling and executing 
small orders may not be as concerned with information leakage, 
resulting in a different best market determination for execution of 
such orders.\170\ Other relevant customer order attributes could 
include whether or not the order is a market order or limit order. A 
broker-dealer's assessment of the best market to execute customer 
orders is different for customers interested in trading immediately 
\171\ and customers willing to execute orders over a longer period of 
time. Moreover, the likelihood of execution is a relevant consideration 
for a broker-dealer, as the failure to receive an execution for orders 
from a particular market may negatively impact the ultimate execution 
quality received by customers.
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    \168\ FINRA Rule 5310(a)(1) also recognizes the ``size and 
type'' of transactions as factors relevant to a broker-dealer's 
exercise of reasonable diligence to ascertain the best market, 
although FINRA rules do not require a broker-dealer's policies and 
procedures to explicitly address how it would assess these factors.
    \169\ It is the Commission's understanding that when an 
institutional customer gives a large order to be executed on behalf 
of one account (e.g., a single mutual fund or pension fund), it 
expects the broker-dealer that handles and executes such large order 
to do so in a manner that ensures best execution is provided to the 
``parent'' order. In other words, to the extent that a parent order 
is split into smaller ``child'' orders, the institutional customer 
expects the best execution analysis to evaluate whether the parent 
order was executed at the most favorable price possible under 
prevailing market conditions according to customer instructions. 
See, e.g., Concept Release on Equity Market Structure, supra note 
49, 75 FR at 3604-3605 (measuring the transaction costs of 
institutional investors ``can be extremely complex'' because their 
``large orders often are broken up into smaller child orders and 
executed in a series of transactions'' and ``[m]etrics that apply to 
small order executions may miss how well or poorly the large order 
traded overall.'').
    \170\ While the Commission has long-acknowledged a range of 
factors relevant for a best execution analysis, it has recognized 
price as a critical concern. See supra note 22 and accompanying 
text. The Commission has stated, for example, that it ``strongly 
believes, however, that most investors care a great deal about the 
quality of prices at which their orders are executed . . . .'' See 
Order Execution and Routing Practice Release supra note 22, 65 FR at 
75418. Additionally, the Commission has stated that broker-dealers 
handling small orders in listed and OTC equities should look for 
price improvement opportunities when executing these orders. See 
Order Execution Obligations Adopting Release, supra note 10, 61 FR 
48323.
    \171\ FINRA Rule 5310.01 requires a broker-dealer to make every 
effort to execute marketable customer orders fully and promptly. 
Similarly, MSRB Rule G-18.03 requires a broker-dealer to make every 
effort to execute a customer transaction promptly, taking into 
account prevailing market conditions, and recognizes that in certain 
market conditions a broker-dealer may need more time to use 
reasonable diligence to ascertain the best market for the subject 
security. The MSRB has stated that while a broker-dealer must make 
every effort to execute a customer transaction promptly, the 
determination as to whether a firm exercised reasonable diligence 
necessarily involves a ``facts and circumstances'' analysis, and 
actions that in one instance may meet a broker-dealer's best-
execution obligation may not satisfy that obligation under another 
set of circumstances. MSRB Interpretative Guidance, V1.1: Execution 
timing (Nov. 20, 2015). Similarly, when assessing the attributes of 
a customer order under proposed Rule 1101(a)(2), a broker-dealer 
would be required to assess how it will execute marketable customer 
orders fully and promptly, taking into account prevailing 
conditions, given that the customer expectation when submitting a 
market order is to have the order executed immediately at the 
prevailing market price or better.
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    A broker-dealer's best market determination is also affected by the 
trading characteristics of a security and the accessibility of a 
market. For example, some securities may not have readily available or 
accessible quotation data or may trade in OTC markets.\172\ These 
characteristics affect how a broker-dealer would identify the best 
market for customer orders, and a broker-dealer may need to seek out 
pricing information that may not otherwise be available or accessible 
at the time it receives a customer order, such as by soliciting buy or 
sell interest from market participants through auction mechanisms, 
interdealer brokers, or otherwise.\173\ Furthermore, extreme market 
conditions that result in heightened volatility or impact the liquidity 
for a security may affect a broker-dealer's best market determination 
for customer orders as trading in those conditions may merit different 
order handling than in more normal market conditions.\174\
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    \172\ See also FINRA Rule 5310(a)(1) (recognizing the relevance 
of the pressure on available communications as relevant for a 
broker-dealer's best market determination). A broker-dealer's 
assessment of the accessibility of a market could vary depending on 
the cost of maintaining connectivity, receiving market data, and 
transacting on the market.
    \173\ These considerations are consistent with FINRA and MSRB 
rules concerning orders involving securities with limited quotations 
or pricing information. See FINRA Rule 5310.06 (providing that a 
broker-dealer must be especially diligent in ensuring that it has 
met its best execution obligations with respect to customer orders 
involving securities for which there is limited pricing information 
or quotations available; requiring each member to have written 
policies and procedures that address how it will determine the best 
inter-dealer market for such a security in the absence of pricing 
information or multiple quotations and document its compliance with 
those policies and procedures; providing as an example that a 
broker-dealer should analyze pricing information based on other 
data, such as previous trades in the security, to determine whether 
the resultant price to the customer is as favorable as possible 
under prevailing market conditions; and providing that a broker-
dealer should generally seek out other sources of pricing 
information or potential liquidity, which may include obtaining 
quotations from other sources (e.g., other firms with which the 
member previously has traded in the security)); MSRB Rule G-18.06 
(providing that a broker-dealer must be especially diligent in 
ensuring that it has met its best-execution obligations with respect 
to customer transactions involving securities for which there is 
limited pricing information or quotations available; requiring each 
broker-dealer to have written policies and procedures in place to 
address how it will make its best execution determinations with 
respect to such a security in the absence of pricing information or 
multiple quotations and document its compliance with those policies 
and procedures; and providing as an example that a broker-dealer 
generally should seek out other sources of pricing information and 
potential liquidity for such a security, including other broker-
dealers with which the broker-dealer previously has traded in the 
security; and providing that a broker-dealer generally should, in 
determining whether the resultant price to the customer is as 
favorable as possible under prevailing market conditions, analyze 
other data to which it reasonably has access).
    \174\ See also FINRA Regulatory Notice 21-12 (discussing the 
best execution obligations of broker-dealers handling and executing 
customer orders during extreme market conditions); FINRA Rule 
5310(a)(1) (discussing the relevance of volatility and liquidity to 
a broker-dealer's best market determination).
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    Moreover, customer instructions are relevant for a broker-dealer's 
best market determination. Customers may provide a broker-dealer with 
specific instructions regarding how the broker-dealer should handle and 
execute their orders, including institutional customers that also owe 
their clients a duty to seek best execution. A broker-dealer's policies 
and procedures generally should address how the broker-dealer will 
assess the factors in proposed Rule 1101(a)(2) within the context of 
and consistent with customer instructions.\175\ For example, some 
institutional customers may instruct their broker-dealer to handle and 
execute their orders with regard being given to the fees and rebates 
that may be charged or paid by a particular market,\176\ and a broker-
dealer's policies

[[Page 5463]]

and procedures generally should address how it would assess the 
relevant factors in proposed Rule 1101(a)(2) while taking into account 
the customer instructions in determining the best market for the 
customers' orders.\177\
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    \175\ A broker-dealer that receives an unsolicited instruction 
from a customer to route that customer's order to a particular 
market for execution and otherwise qualifies for the exemption from 
the proposed best execution standard in Rule 1100(c) would not be 
subject to the requirements of proposed Rule 1101, including the 
requirement to have policies and procedures that address how the 
broker-dealer would consider customer instructions in selecting the 
market most likely to provide the most favorable price.
    \176\ The Commission understands that these customers often pay 
the broker-dealer a lower commission or service fee for handling 
their orders, and the fees and rebates that are charged or paid by a 
market are often passed through to the customers.
    \177\ To the extent rebates cause certain transactions to be 
``conflicted transactions'' as defined in proposed Rule 1101(b), a 
broker-dealer's policies and procedures must also address how it 
would assess the relevant factors in proposed Rule 1101(b) while 
taking into account the customer instructions.
---------------------------------------------------------------------------

    Proposed Rule 1101(a)(2)(iii) would require a broker-dealer's 
policies and procedures to address how it will reasonably balance the 
likelihood of obtaining better prices with the risk that delay could 
result in worse prices in determining the number and sequencing of 
markets to be assessed for its customers' orders.\178\ An undue delay 
in execution of customer orders may detrimentally impact the execution 
of those orders, if there was a change in the price or liquidity 
available at the time of execution that was not favorable to the 
customer. For example, in a volatile market, executing customer orders 
quickly may be necessary for the customer to receive the most favorable 
prices or to receive an execution at all. Doing so may require the 
broker-dealer to execute customer orders using fewer or different 
execution methods than it might otherwise use in a less volatile 
market. Similarly, a broker-dealer that is handling large customer 
orders may determine that preventing information leakage is necessary 
in order for the large orders to be executed at the most favorable 
prices, which may affect the number and sequencing of the markets that 
it assesses. Accordingly, the broker-dealer's best execution policies 
and procedures generally should be tailored for the different 
circumstances in order to reflect a reasonable balance between the 
likelihood of obtaining better prices with the risk that delay could 
result in worse prices.
---------------------------------------------------------------------------

    \178\ For example, a broker-dealer could develop an automated 
process for determining the specific markets to which it routes 
orders and the sequence in which the orders are routed.
---------------------------------------------------------------------------

    FINRA Rule 5310(a)(1) and MSRB Rule G-18(a) set forth similar 
factors that are relevant to ascertaining the best market for customer 
orders, including the character of the market for the security (e.g., 
price, volatility, relative liquidity, and pressure on available 
communications), the size and type of transaction, the number of 
markets checked, the accessibility of the quotation,\179\ and the terms 
and conditions of the order that result in the transaction as 
communicated to the broker-dealer. As described in section IV.B.1 
above, FINRA and MSRB rules require broker-dealers to have policies and 
procedures for compliance with relevant laws and rules. In addition, 
the FINRA and MSRB rules specifically require a broker-dealer to 
establish written policies and procedures that address how it will 
determine the best market for a security in the absence of pricing 
information or multiple quotations and document its compliance with 
those policies and procedures.\180\ However, FINRA and MSRB rules do 
not require a broker-dealer's policies and procedures to specifically 
address the elements that are relevant to its best market 
determinations. The Commission understands that broker-dealers 
generally have policies and procedures to ascertain the best market for 
a security, although such policies and procedures may need to be 
updated to address the elements specified in proposed Rule 1101(a)(2).
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    \179\ FINRA Rule 5310.03 provides that, for purposes of debt 
securities, the term ``quotation'' refers to either dollar (or other 
currency) pricing or yield pricing. It also states that 
accessibility is only one of the non-exhaustive reasonable diligence 
factors, and in the absence of accessibility, members are not 
relieved from taking reasonable steps and employing their market 
expertise in achieving the best execution of customer orders. 
Proposed Rule 1101(a) similarly provides a list of non-exhaustive 
reasonable diligence factors that would be addressed in a broker-
dealer's best execution policies and procedures.
    \180\ See supra note 173.
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Request for Comment
    The Commission requests comment on all aspects of proposed Rule 
1101(a)(2), and in particular:
    46. Has the Commission appropriately identified the considerations 
for determining the best market for customer orders? Why or why not?
    47. Do commenters believe that proposed Rule 1101(a)(2)(i) 
appropriately requires a broker-dealer's policies and procedures to 
reflect how it will assess reasonably accessible and timely information 
with respect to the best displayed prices, opportunities for price 
improvement, including midpoint executions, and order exposure 
opportunities that may result in the most favorable price? Why or why 
not?
    48. Do commenters believe that proposed Rule 1101(a)(2)(ii) 
appropriately requires a broker-dealer's policies and procedures to 
reflect how it will assess the attributes of customer orders and 
consider the trading characteristics of the security, the size of the 
order, the likelihood of execution, the accessibility of the market, 
and any customer instructions in selecting the market most likely to 
provide the most favorable price? Why or why not?
    49. Do commenters believe that proposed Rule 1101(a)(2)(iii) 
appropriately requires a broker-dealer's policies and procedures to 
reflect how it will reasonably balance the likelihood of obtaining 
better prices with the risk that delay could result in a worse price, 
in determining the number and sequencing of markets to be assessed? Why 
or why not?
    50. Do commenters agree that proposed Rule 1101(a)(2) is consistent 
with prior Commission statements, including those described in section 
II.B above? Why or why not? If not, should the Commission revise any of 
its statements in light of the proposal? Please explain.
    51. While the considerations for determining the best market 
included in proposed Rule 1101(a)(2) are non-exhaustive, should the 
Commission explicitly include other considerations in the rule? If so, 
please explain.
    52. Is the list of considerations for determining the best market 
included in proposed Rule 1101(a)(2) consistent with the considerations 
included in FINRA Rule 5310 and MSRB Rule G-18? If not, please explain 
any differences and whether the considerations should be consistent.
    53. Do commenters agree with the Commission's understanding that 
midpoint liquidity is not as commonly available in the options market 
as it is in the NMS stock market? Why or why not?
    54. Should the Commission specify transaction fees in the rule text 
as considerations for determining the best market? If so, please 
explain how fees may be relevant to the best execution standard and a 
broker-dealer's best market determination. Do broker-dealers route and 
execute customer orders based on a favorable transaction fee and does 
that impact the execution quality of customer orders? Please explain.
    55. What factors should a broker-dealer consider in determining the 
number and sequencing of markets to be assessed, in addition to the 
likelihood of obtaining better prices and the risk that a delay could 
result in a worse price? Please explain.
    56. Do commenters agree with the Commission's understanding that 
institutional customers expect broker-dealers that handle and execute 
their large orders for a single account to do so in a manner that 
ensures best execution is provided to the ``parent'' order?

[[Page 5464]]

    57. Do commenters agree with the Commission's understanding that 
broker-dealers currently generally have policies and procedures to 
ascertain the best market for a security? Please describe the types of 
best market policies and procedures that broker-dealers currently have. 
In particular, do broker-dealers' policies and procedures address how 
they assess reasonably accessible and timely information with respect 
to the best displayed prices, opportunities for price improvement, 
including midpoint executions, and order exposure opportunities that 
may result in the most favorable price? Do broker-dealers' policies and 
procedures address how they assess the attributes of customer orders 
and consider the trading characteristics of the security, the size of 
the order, the likelihood of execution, the accessibility of the 
market, and any customer instructions in selecting the market most 
likely to provide the most favorable price? Do broker-dealers' policies 
and procedures address how they reasonably balance the likelihood of 
obtaining better prices with the risk that delay could result in a 
worse price, in determining the number and sequencing of markets to be 
assessed?
    58. Do commenters believe that the Commission should provide 
staggered compliance dates for proposed Rule 1101(a)(2) for broker-
dealers of different sizes, if the Commission adopts proposed 
Regulation Best Execution? For example, should the Commission provide 
longer compliance dates for smaller broker-dealers? If so, should the 
Commission define a smaller broker-dealer as a broker-dealer that 
qualifies as a ``small entity'' under the Regulatory Flexibility Act 
pursuant to 17 CFR 240.0-10(c) for this purpose? \181\ Or should the 
Commission define a smaller broker-dealer in a different way? Please 
explain.
---------------------------------------------------------------------------

    \181\ See supra note 151 and accompanying text (describing the 
broker-dealers that qualify as small entities under the Regulatory 
Flexibility Act).
---------------------------------------------------------------------------

C. Proposed Rule 1101(b)--Policies and Procedures and Documentation for 
Conflicted Transactions

    Proposed Rule 1101(b) would require a broker-dealer's best 
execution policies and procedures to address additional considerations 
with respect to ``conflicted transactions.'' It would also require a 
broker-dealer to document its compliance with the proposed best 
execution standard for conflicted transactions and document any 
arrangement concerning payment for order flow.
    Proposed Rule 1101(b) would define a ``conflicted transaction'' for 
purposes of proposed Regulation Best Execution as any ``transaction for 
or with a retail customer'' where a broker-dealer: (i) executes an 
order as principal, including riskless principal; \182\ (ii) routes an 
order to, or receives an order from, an affiliate for execution; or 
(iii) provides or receives payment for order flow as defined in Rule 
10b-10(d)(8) under the Exchange Act.\183\ For purposes of paragraph 
(b), ``affiliate'' would be defined by proposed Rule 1101(b)(4)(iii) 
as, with respect to a specified person, any person that, directly or 
indirectly, controls, is under common control with, or is controlled 
by, the specified person. ``Control'' would be defined for purposes of 
the proposed definition of ``affiliate'' by proposed Rule 
1101(b)(4)(iii) as the power, directly or indirectly, to direct the 
management or policies of the broker-dealer whether through ownership 
of securities, by contract, or otherwise. A person is presumed to 
control a broker-dealer if that person is a director, general partner, 
or officer exercising executive responsibility (or having similar 
status or performing similar functions); directly or indirectly has the 
right to vote 25 percent or more of a class of voting securities or has 
the power to sell or direct the sale of 25 percent or more of a class 
of voting securities of the broker-dealer; or in the case of a 
partnership, has contributed, or has the right to receive upon 
dissolution, 25 percent or more of the capital of the broker-
dealer.\184\ In each of these types of conflicted transactions, the 
broker-dealer has a financial interest that could disincentivize the 
broker-dealer from achieving best execution for its customer's 
orders.\185\ Accordingly, the Commission proposes to require more 
robust policies and procedures, as well as documentation, for 
conflicted transactions with retail customers to better address these 
disincentives.
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    \182\ For purposes of proposed Rule 1101(b), a broker-dealer 
would be executing an order as ``riskless principal'' if, after 
having received an order to buy from a customer, the broker-dealer 
purchases the security from another person to offset a 
contemporaneous sale to the customer or, after having received an 
order to sell, the broker-dealer sells the security to another 
person to offset a contemporaneous purchase from the customer. See 
also, Exchange Act Rule 3a5-1; U.S. Securities and Exchange 
Commission, Report on the Municipal Securities Market (July 31, 
2012) available at https://www.sec.gov/news/studies/2012/munireport073112.pdf. The Commission preliminarily believes that it 
is appropriate to include riskless principal transactions as a type 
of conflicted transactions because of the variability of markups and 
markdowns associated with riskless principal transactions, which 
impacts the ultimate price paid by the customer (i.e., the ultimate 
execution received by the customer) and often is not known to the 
customer prior to transacting. See, e.g., John M. Griffin, et al., 
supra note 66.
    \183\ See supra note 43 (setting forth the definition of 
``payment for order flow'' under Rule 10b-10(d)(8)). Given the 
widespread use of the Rule 10b-10(d)(8) definition of ``payment for 
order flow'' and the collective understanding of the term by market 
participants, the Commission proposes to use the existing Rule 10b-
10(d)(8) definition in proposed Regulation Best Execution. As 
reflected in this definition, payment for order flow would include 
any payments from a wholesaler to a retail broker-dealer in return 
for order flow. It would also include any exchange rebates paid to a 
broker-dealer in return for sending orders to the exchange. When all 
payment for order flow for a customer order from a particular market 
is passed through to the customer and the broker-dealer retains no 
part of the payment for order flow associated with that customer 
order, the broker-dealer would not be engaging in a conflicted 
transaction under proposed Rule 1101(b) with respect to that 
customer order.
    \184\ These definitions are substantially the same as the 
definitions of ``affiliate'' and ``control'' prescribed for purposes 
of the disclosures required of an ATS that trades NMS stocks (``NMS 
Stock ATS'') about its operations on Form ATS-N with the following 
modifications: the Form ATS-N definition of ``affiliate'' uses a 
separately-defined term ``Person'' instead of the statutory 
definition of ``person,'' and Form ATS-N defines ``control'' as 
applicable to the ``broker-dealer of the alternative trading 
system'' instead of as applicable to a ``broker or dealer.'' The 
Commission believes that it would be appropriate to use 
substantially similar definitions of ``affiliate'' and ``control'' 
in the context of proposed Rule 1101(b) because, for purposes of 
Form ATS-N, the Commission defined such terms for use with respect 
to disclosures designed to enable market participants to better 
evaluate how relationships between certain persons could affect the 
handling of orders on a particular NMS Stock ATS. See Securities 
Exchange Act Release No. 83663 (July 18, 2018), 83 FR 38768 (Aug. 7, 
2018). The substantially similar proposed definitions, as used in 
the context of proposed Rule 1101(b), are similarly designed to 
recognize that relationships among certain persons may impact the 
handling of orders, and are designed to help ensure that broker-
dealers that have conflicts of interest in their order handing are 
subject to additional obligations under proposed Rule 1101(b).
    \185\ See generally section III.A.2 (discussing in more detail 
these conflicts of interest); see also 2022 Report on FINRA's 
Examination and Risk Monitoring Program 45 (Feb. 2022), available at 
https://www.finra.org/sites/default/files/2022-02/2022-report-finras-examination-risk-monitoring-program.pdf (describing FINRA 
exam findings, including firms not considering and addressing 
potential conflicts of interest relating to routing orders to 
affiliated broker-dealers, affiliated ATSs, or market centers that 
provide routing inducements, such as payment for order flow from 
wholesale market makers and exchange liquidity rebates).
---------------------------------------------------------------------------

    Proposed Rule 1101(b) would apply to conflicted transactions for or 
with a retail customer, and proposed Rule 1101(b)(4)(i) would define a 
``transaction for or with a retail customer'' as any transaction for or 
with the account of a natural person or held in legal form on behalf of 
a natural person or group of related family members. The proposed 
definition's limitation to accounts of natural persons is consistent 
with existing rules that are designed to identify the orders of 
individual investors. For example, the definition of ``retail 
customer'' in the

[[Page 5465]]

Commission's Regulation Best Interest rule is limited to a ``natural 
person.'' \186\ Moreover, several national securities exchanges operate 
programs for trading ``retail'' orders that are limited to accounts of 
natural persons or certain accounts on behalf of natural persons.\187\ 
The proposed definition of retail customer is also consistent with 
FINRA's rule for certain trade reporting.\188\ Proposing a definition 
of retail customer that is similar to existing Commission and SRO rules 
would facilitate compliance with proposed Rule 1101(b) and help 
mitigate the costs of compliance because broker-dealers would already 
be familiar with identifying orders for the accounts of natural 
persons, or for related accounts, in these other contexts.
---------------------------------------------------------------------------

    \186\ 17 CFR 240.15l-1(b)(1) (defining ``retail customer'' to 
mean, among other things, a natural person who receives a 
recommendation of any securities transaction from a broker or dealer 
and uses the recommendation primarily for personal, family, or 
household purposes). Proposed Rule 1101(b) does not incorporate all 
of the definition of ``retail customer'' in Regulation Best Interest 
because that definition is limited to scenarios where a person 
receives and uses a recommendation. In contrast, proposed Rule 
1101(b) and the proposed standard of best execution are not limited 
to scenarios where a person receives and uses a recommendation.
    \187\ See, e.g., Investors Exchange LLC Rule 11.190(b)(15) 
(providing, among other things, that ``[a] Retail order must reflect 
trading interest of a natural person'' and that ``[a]n order from a 
retail customer can include orders submitted on behalf of accounts 
that are held in a corporate legal form--such as an Individual 
Retirement Account, Corporation, or a Limited Liability Company--
that have been established for the benefit of an individual or group 
of related family members, provided that the order is submitted by 
an individual''); The Nasdaq Stock Market LLC, Equity 7, Section 118 
(defining a ``Designated Retail Order'' as originating from a 
``natural person'' and explaining that ``[a]n order from a `natural 
person' can include orders on behalf of accounts that are held in a 
corporate legal form--such as an Individual Retirement Account, 
Corporation, or a Limited Liability Company--that has been 
established for the benefit of an individual or group of related 
family members, provided that the order is submitted by an 
individual'').
    \188\ FINRA Rule 7620A.01 (defining a ``retail order'' as 
originating from a ``natural person'' and explaining that ``[a]n 
order from a `natural person' can include orders on behalf of 
accounts that are held in a corporate legal form, such as an 
Individual Retirement Account, Corporation, or a Limited Liability 
Corporation that has been established for the benefit of an 
individual or group of related family members, provided that the 
order is submitted by an individual'').
---------------------------------------------------------------------------

    In addition to the accounts of natural persons, the proposed 
definition of ``transaction for or with a retail customer'' would cover 
accounts held in legal form on behalf of a natural person or a group of 
related family members. A ``group of related family members'' would be 
defined broadly in proposed Rule 1101(b)(4)(i) to include a group of 
natural persons with any of the following relationships: child, 
stepchild, grandchild, great grandchild, parent, stepparent, 
grandparent, great grandparent, spouse, domestic partner, sibling, 
stepbrother, stepsister, niece, nephew, aunt, uncle, mother-in-law, 
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-
in-law, including adoptive and foster relationships; and any other 
natural person (other than a tenant or employee) sharing a household 
with any of the foregoing natural persons. This proposed definition is 
broad so as not to restrict the types of arrangements that may be set 
up to benefit family groups, including individual retirement accounts, 
corporations, and limited liability companies for the benefit of 
related family members.
    Proposed Rule 1101(b) would create new requirements for broker-
dealers' conflicted transactions that are not currently required by 
FINRA or the MSRB. Because a broker-dealer engaging in conflicted 
transactions for or with retail customers has an incentive to handle 
those orders in a manner that prioritizes its own interests over its 
customers' interests, the Commission preliminarily believes that, 
correspondingly, additional policies and procedures elements and 
documentation requirements should apply to such transactions in order 
to help mitigate the potential for these incentives to negatively 
affect the broker-dealer's best execution determinations. The 
Commission preliminarily believes that proposed Rule 1101(b) would help 
broker-dealers to comply with the proposed best execution standard with 
respect to conflicted transactions, because it would require heightened 
attention by broker-dealers for conflicted transactions and would 
require broker-dealers to document the basis for their determinations 
that, despite the conflicts of interest, they have complied with the 
best execution standard for their conflicted transactions.
    The Commission also preliminarily believes that retail customers 
generally would benefit more than non-retail customers from the more 
robust conflicted transactions requirements because retail customers 
are likely to have fewer resources for evaluating the best execution 
practices of their broker-dealers than non-retail customers. For 
example, institutional customers likely have additional knowledge, 
experience, and analytical resources as compared to retail customers 
and, thus, are more readily able to evaluate the impact of their 
broker-dealers' conflicted transactions. In contrast, retail customers 
are less likely to have the same level of knowledge, experience, and 
resources to make such evaluations.
Request for Comment
    The Commission requests comment on the types of conflicted 
transactions under proposed Rule 1101(b), and in particular:
    59. Is it appropriate for proposed Rule 1101(b) to incorporate the 
definition of ``payment for order flow'' from Exchange Act Rule 10b-
10(d)(8)? Why or why not? If not, how should ``payment for order flow'' 
be defined for purposes of proposed Regulation Best Execution? Please 
describe any alternative definition and explain why such definition 
would be appropriate.
    60. Does proposed Rule 1101(b) appropriately identify the conflicts 
of interest of broker-dealers that are most relevant to the handling of 
retail customer orders? If not, why not? Are there other conflicted 
transactions that should be included in proposed Rule 1101(b) or are 
there transactions that are included that should be omitted? If so, 
please explain.
    61. Should the principal trading conflict identified in proposed 
Rule 1101(b) include riskless principal trades with customers, as 
proposed? Why or why not? If riskless principal trades should be 
included, should they be defined as proposed--after having received an 
order to buy from a customer, the broker-dealer purchases the security 
from another person to offset a contemporaneous sale to the customer 
or, after having received an order to sell, the broker-dealer sells the 
security to another person to offset a contemporaneous purchase from 
the customer--similar to the definition of riskless principal in 
Exchange Act Rule 3a5-1? Why or why not?
    62. Should the Commission provide an exemption from the definition 
of conflicted transactions for certain types of riskless principal 
trades? For example, should the Commission exempt from the definition 
of ``riskless principal'' in proposed Rule 1101 (b)(4)(ii) trades where 
the broker-dealer discloses to its customer the markup or markdown that 
it charges on these trades on a pre-trade basis? Please explain. If 
this type of exemption should be provided, what would be an appropriate 
method of pre-trade markup or markdown disclosure by the broker-dealer? 
For example, would it be appropriate for the broker-dealer to disclose 
a markup or markdown schedule in a readily accessible place such as its 
website? Please explain.
    63. Alternatively, should the Commission exempt from the definition 
of ``riskless principal'' in proposed Rule

[[Page 5466]]

1101(b)(4)(ii) trades where the contemporaneous purchases and sales are 
executed at the same price resulting in a transaction with the customer 
that does not include any markup or markdown? Please explain. In these 
types of transactions, how would the broker-dealer be compensated by 
the customer? Would it charge a commission that is separately disclosed 
to the customer on the confirmation? Would the customer know the 
commission that it would pay the broker-dealer prior to engaging in the 
transaction?
    64. Is the proposed definition of a ``transaction for or with a 
retail customer'' in Rule 1101(b)(4)(i), which would include accounts 
held in legal form on behalf of a natural person or a group of related 
family members, appropriate? Why or why not? Should the proposed 
definition be broadened or narrowed? If so, please explain how the 
definition should be broadened or narrowed and why.
    65. Is the proposed definition of ``group of related family 
members'' in proposed Rule 1101(b)(4)(i) appropriate? Why or why not? 
Should it be more or less inclusive, and if so, in what regard? Please 
explain. For example, instead of capturing a group of natural persons 
with ``any'' of the relationships in the proposed definition (child, 
stepchild, grandchild, great grandchild, parent, stepparent, 
grandparent, great grandparent, spouse, domestic partner, sibling, 
stepbrother, stepsister, niece, nephew, aunt, uncle, mother-in-law, 
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister 
in law, including adoptive and foster relationships; and any other 
natural person (other than a tenant or employee) sharing a household 
with any of the foregoing natural persons), should the proposed 
definition be limited to a group of natural persons consisting ``only'' 
of those relationships?
    66. Should the definition of a ``transaction for or with a retail 
customer'' exclude a transaction with a ``family office,'' which is 
defined in Rule 202(a)(11)(G)-1(b) under the Investment Advisers Act of 
1940 as a company (including its directors, partners, members, 
managers, trustees, and employees acting within the scope of their 
position or employment) that: (1) has no clients other than family 
clients (as defined in the rule) (provided that if a person that is not 
a family client becomes a client of the family office as a result of 
the death of a family member or key employee (as defined in the rule) 
or other involuntary transfer from a family member or key employee, 
that person shall be deemed to be a family client for purposes of the 
rule for one year following the completion of the transfer of legal 
title to the assets resulting from the involuntary event); (2) is 
wholly owned by family clients and is exclusively controlled (directly 
or indirectly) by one or more family members and/or family entities; 
and (3) does not hold itself out to the public as an investment 
adviser? Why or why not?
    67. Alternatively, should the definition of a ``transaction for or 
with a retail customer'' only exclude a subset of ``family offices''? 
For example, should it exclude a family office (as defined above) that 
(1) has one or more experienced securities or financial services 
professionals, (2) manages a threshold level of total assets (e.g., $50 
million or more) that are indicative of an institutional account, (3) 
has the capacity to evaluate independently the execution quality 
received from the broker-dealer, and (4) has professionals who are 
independent representatives of their family clients? Please explain.
    68. Is the proposed definition of an ``affiliate'' in proposed Rule 
1101(b)(4)(iii) appropriate? Why or why not? Should the proposed 
definition be broadened or narrowed? If so, please explain how the 
definition should be broadened or narrowed and why.
    69. Is the proposed definition of ``control'' for purposes of the 
proposed definition of ``affiliate'' in proposed Rule 1101(b)(4)(iii) 
appropriate? Why or why not? Should the proposed definition be 
broadened or narrowed? If so, please explain how the definition should 
be broadened or narrowed and why.
    70. Should some or all institutional customers' orders also have 
the protections afforded by proposed Rule 1101(b)? Please explain. If 
only certain categories of institutional customers' orders should also 
have the protections afforded by proposed Rule 1101(b), how should the 
Commission identify and define the institutional customers' orders that 
should benefit?
    71. Should the size of institutional customers be considered when 
determining whether or not they should be afforded the protections of 
proposed Rule 1101(b)? If so, what would be the appropriate metric to 
identify such institutional customers? For example, should the 
Commission consider the amount of assets under management when 
determining which institutional customers should be afforded the 
protections of proposed Rule 1101(b)?
    72. If the Commission were to apply the protections of proposed 
Rule 1101(b) to conflicted transactions for or with institutional 
customers, should it define ``institutional customer'' as any person 
that does not qualify as a QIB?\189\ Should it define ``institutional 
customer'' to include any person that qualifies as a QIB? Or should it 
define ``institutional customer'' to include a broader set of 
institutional customers than the QIB definition, such as those entities 
that are included in the FINRA definition of ``institutional account'' 
under FINRA Rule 4512(c)?\190\
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    \189\ See supra note 124 (providing the definition of QIB under 
Rule 144A under the Securities Act of 1933).
    \190\ See supra note 125 and accompanying text (describing the 
definition of institutional account in FINRA Rule 4512(c)).
---------------------------------------------------------------------------

    73. Do commenters believe there is another definition of 
``institutional customer'' that would be more appropriate if the 
Commission were to apply the protections of proposed Rule 1101(b) to 
conflicted transactions for or with institutional customers? Please 
explain.
    74. If institutional customers' orders should be afforded the 
additional protections, are some or all of the conflicts of interest 
identified in proposed Rule 1101(b) also relevant for institutional 
customers? Are there other conflicts of interest relevant for 
institutional customers that should be included in proposed Rule 
1101(b)? Please explain.
    75. If institutional customers' orders should be afforded the 
additional protections, should all the requirements under proposed Rule 
1101(b) be extended to institutional customers' orders, or should only 
certain of the requirements be extended to institutional customers' 
orders? Should the Commission include other requirements for the 
protection of institutional customers' orders? Please explain.
1. Proposed Rules 1101(b)(1) and (2)--Policies and Procedures for 
Conflicted Transactions
    Proposed Rules 1101(b)(1) and (2) would require a broker-dealer's 
best execution policies and procedures to address the following with 
respect to conflicted transactions: (1) how the broker-dealer will 
obtain and assess information beyond that required by proposed Rule 
1101(a)(1)(i), including additional information about price, volume, 
and execution quality, in identifying a broader range of markets beyond 
those identified as material potential liquidity sources; and (2) how 
the broker-dealer will evaluate a broader range of markets, beyond 
those identified as material potential liquidity sources, that might 
provide the most favorable price for customer orders,

[[Page 5467]]

including a broader range of order exposure opportunities and markets 
that may be smaller or less accessible.
    Proposed Rule 1101(b) is not designed to eliminate order handling 
conflicts of interest, and does not ban conflicted transactions. 
However, because a broker-dealer engaging in conflicted transactions 
for or with retail customers has an incentive to handle those orders in 
a manner that prioritizes its own interests over its customers' 
interests, the Commission preliminarily believes that, correspondingly, 
such transactions should be subject to more robust policies and 
procedures in order to help mitigate the potential for these incentives 
to negatively affect the broker-dealer's best execution determinations. 
Specifically, to help ensure that a broker-dealer exercises the 
reasonable diligence required by proposed Rule 1100 despite its 
incentives not to, a broker-dealer would be required to have policies 
and procedures that are specific to conflicted transactions to address 
how it will assess information beyond what is required for non-
conflicted transactions and how it will identify and evaluate of a 
broader set of liquidity sources than for non-conflicted transactions. 
These policies and procedures are designed to help ensure that a 
broker-dealer exercises additional diligence in considering relevant 
information and identifying the best market for customer orders, 
despite their conflicts of interest.
    Specifically, proposed Rule 1101(b)(1) would require a broker-
dealer's policies and procedures for conflicted transactions to address 
how it will obtain and assess information beyond what it would obtain 
and assess for non-conflicted transactions, including additional 
information about price, volume, and execution quality, in identifying 
a broader range of markets beyond those identified as material 
potential liquidity sources. While a broker-dealer would use reasonably 
accessible information in identifying material potential liquidity 
sources for non-conflicted transactions, a broker-dealer would 
additionally be required to consider how it would use information 
beyond what it used for non-conflicted transactions in identifying a 
broader range of markets beyond material potential liquidity sources 
for conflicted transactions.\191\
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    \191\ Proposed Rule 1101(b) would require a broker-dealer to 
consider a broader range of markets for conflicted transactions than 
non-conflicted transactions. In doing so, the broker-dealer may need 
to obtain and assess information beyond what it obtains and assesses 
for non-conflicted transactions. It is possible, however, that a 
broker-dealer obtains and assesses information beyond what is needed 
to identify material potential liquidity sources for non-conflicted 
transactions, including information concerning markets that it did 
not identify as material potential liquidity sources. Under these 
circumstances, the information the broker-dealer obtained and 
assessed for non-conflicted transactions may include information 
beyond what is required by proposed Rule 1101(a)(1), and this 
information may be sufficient for it to identify a broader set of 
markets beyond those identified as material potential liquidity 
sources. See also supra note 132 and accompanying text.
---------------------------------------------------------------------------

    Proposed Rule 1101(b)(2) would require a broker-dealer's policies 
and procedures for conflicted transactions to address how it will 
evaluate a broader range of markets, beyond those identified as 
material potential liquidity sources, that might provide the most 
favorable price for retail customer orders, including a broader range 
of order exposure opportunities and markets that may be smaller or less 
accessible than those identified as material potential liquidity 
sources. Because a broker-dealer may have a financial incentive to 
engage in conflicted transactions, it may have an incentive to more 
quickly conclude that the conflicted transactions represent the best 
market and thus execute the trade in a conflicted transaction. 
Accordingly, the proposed rule would require a broker-dealer to have 
policies and procedures that reflect additional efforts to identify a 
broader range of markets, including a broader range of order exposure 
opportunities, that may provide retail customers with the most 
favorable price and the establishment of order handling, routing, and 
execution arrangements with this broader range of potential liquidity 
sources.\192\
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    \192\ For example, a retail broker-dealer, in accordance with 
its policies and procedures related to the identification of 
material potential liquidity sources as required by proposed Rule 
1101(a), may have evaluated a certain number of markets and 
identified a subset of those markets as material potential liquidity 
sources for non-conflicted transactions. For conflicted 
transactions, the broker-dealer, in accordance with its policies and 
procedures for conflicted transactions, would additionally evaluate 
some of the markets that it did not identify as material potential 
liquidity sources for non-conflicted transactions. Conflicted 
transactions, such as routing orders to an affiliated ATS for 
execution, may involve financial incentives for the broker-dealer 
and could result in the broker-dealer prioritizing its own interests 
over its customers' interests. The additional requirements of 
proposed Rule 1101(b) are designed to help ensure that the broker-
dealer exercises reasonable diligence for conflicted transactions in 
light of these incentives. As stated above, proposed Rule 
1101(a)(1)(ii) would not prescribe the minimum number of markets 
that a broker-dealer would need to identify as material potential 
liquidity sources. See supra section IV.B.1. Rather, as stated 
above, the Commission believes that the identification of these 
markets could be influenced by the nature of the broker-dealer's 
business operation and customer order flow, such as whether it 
handles institutional or retail orders. See id.
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Request for Comment
    The Commission requests comment on all aspects of proposed Rules 
1101(b)(1) and (2), and in particular:
    76. Do proposed Rules 1101(b)(1) and (2) represent an appropriate 
approach to addressing conflicted transactions? Why or why not?
    77. Should a broker-dealer be required to establish, maintain, and 
enforce best execution policies and procedures for conflicted 
transactions that address the additional requirements under proposed 
Rules 1101(b)(1) and (2)? Why or why not?
    78. Should a broker-dealer's policies and procedures for conflicted 
transactions be required to address how it will obtain and assess 
information beyond what it would obtain and assess for non-conflicted 
transactions, including additional information about price, volume, and 
execution quality, in identifying a broader range of markets beyond the 
material potential liquidity sources? Why or why not?
    79. Should a broker-dealer's policies and procedures for conflicted 
transactions be required to address how it will evaluate a broader 
range of markets beyond material potential liquidity sources, including 
a broader range of order exposure opportunities and markets that may be 
smaller or less accessible? Why or why not?
    80. Would retail customers benefit from potentially having their 
orders exposed by a broker-dealer to a broader array of liquidity 
sources where the broker-dealer would have a conflict of interest? Why 
or why not?
    81. Should proposed Rules 1101(b)(1) and (2) include different or 
additional requirements for conflicted transactions in different asset 
classes? Please explain.
    82. What challenges, if any, would broker-dealers encounter in 
implementing proposed Rules 1101(b)(1) and (2)? Please explain.
    83. Do commenters believe that the Commission should provide 
staggered compliance dates for proposed Rules 1101(b)(1) and (2) for 
broker-dealers of different sizes, if the Commission adopts proposed 
Regulation Best Execution? For example, should the Commission provide 
longer compliance dates for smaller broker-dealers? If so, should the 
Commission define a smaller broker-dealer as a broker-dealer that 
qualifies as a ``small entity'' under the Regulatory Flexibility Act 
pursuant to 17 CFR 240.0-10(c) for this purpose? \193\

[[Page 5468]]

Or should the Commission define a smaller broker-dealer in a different 
way? Please explain.
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    \193\ See supra note 151 and accompanying text (describing the 
broker-dealers that qualify as small entities under the Regulatory 
Flexibility Act).
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2. Proposed Rule 1101(b)(3)--Documentation for Conflicted Transactions
    Proposed Rule 1101(b)(3) would require a broker-dealer to document 
its compliance with the best execution standard for conflicted 
transactions, including all efforts taken to enforce its policies and 
procedures for conflicted transactions and the basis and information 
relied on for its determination that such conflicted transactions would 
comply with the best execution standard. Proposed Rule 1101(b)(3) would 
require that such documentation be done in accordance with written 
procedures.
    The Commission understands that broker-dealers currently differ in 
documentation practices relating to their compliance with their duty of 
best execution, and some broker-dealers currently retain information 
that allows them to recreate the prices that were available at the time 
of an execution. While proposed Rule 1101(b)(3) would not require a 
broker-dealer to document its compliance with the best execution 
standard with respect to its conflicted transactions in any specific 
way, the broker-dealer would need to document all efforts taken to 
enforce its policies and procedures for its conflicted transactions 
\194\ and to demonstrate the basis and information relied on for its 
determination that its conflicted transactions would comply with the 
best execution standard.\195\ Proposed Rule 1101(b)(3) also would not 
prescribe the manner in which a broker-dealer would need to document 
its compliance with the proposed best execution standard, and the 
Commission preliminarily believes that the manner of documentation may 
vary depending on various considerations specific to the broker-dealer, 
such as the nature of its customers and the characteristics of the 
securities traded. The Commission preliminarily believes that, in 
connection with documenting its compliance with the proposed best 
execution standard and its best execution determinations for conflicted 
transactions, the broker-dealer could document the prices received from 
those markets that it checked pursuant to its policies and procedures. 
The Commission preliminarily believes that such information could serve 
as a basis for demonstrating a broker-dealer's best execution efforts 
and determinations, and broker-dealers already maintain much of this 
information pursuant to existing regulatory or operational 
requirements.\196\
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    \194\ A failure to have the policies and procedures required by 
proposed Rule 1101(b) that are applicable to all conflicted 
transactions, or a failure to enforce such policies and procedures, 
would be a violation of proposed Regulation Best Execution.
    \195\ This proposed documentation requirement would differ from 
proposed Rule 1101(a), which would more generally require the 
broker-dealer's policies and procedures to be reasonably designed to 
comply with the best execution standard and to address a number of 
specified elements.
    \196\ The Commission preliminarily believes that this 
documentation would be similar to many of the records that broker-
dealers currently maintain pursuant to regulatory requirements, such 
as trade-through prohibitions and the National Market System Plan 
Governing the Consolidated Audit Trail (``CAT Plan'') reporting. For 
example, the CAT Plan requires a broker-dealer to report the entire 
lifecycle of an order. See CAT Plan, Appendix C, Section A. 2 (3); 
See also Rule 613(c)(1) of Regulation NMS, 17 CFR 242.613(c)(1) 
(stating that the CAT plan must provide for an accurate, time-
sequenced record of orders beginning with the receipt or origination 
of an order by a member of a national securities exchange or 
national securities association, and document the life of the order 
through the process of routing, modification, cancellation, and 
execution (in whole or in part) of the order). This order lifecycle 
information that today is reported to the CAT Plan could include 
information that is relevant for the documentation provision of 
proposed Rule 1101(b). For example, in documenting the markets 
checked, a broker-dealer that routes customer orders to markets in 
an attempt to access midpoint liquidity could retain records 
concerning the markets it pinged for potential midpoint executions.
---------------------------------------------------------------------------

    The proposed documentation requirement, including the obligation to 
document pursuant to written procedures, would assist broker-dealers in 
complying with proposed Regulation Best Execution and regulators in 
overseeing broker-dealers' compliance. As stated above in this section, 
while the Commission understands that some broker-dealers retain 
information that allows them to recreate the prices that were available 
at the time of an execution (for example, in response to a regulatory 
inquiry), the Commission understands that broker-dealers have varying 
degrees of documentation with respect to their best execution 
practices. By specifically requiring all broker-dealers that engage in 
conflicted transactions to document their compliance with the proposed 
best execution standard, including all efforts to enforce their 
policies and procedures, and the basis and information relied on for 
their determinations that the conflicted transactions would comply with 
the best execution standard, such broker-dealers would be required to 
collect important information concerning the application of their best 
execution process. This information may help broker-dealers better 
evaluate the effectiveness of their best execution policies and 
procedures, including their order handling practices. Moreover, by 
requiring that the documentation be conducted pursuant to written 
procedures, the proposed rule would help ensure that all broker-dealers 
that engage in conflicted transactions (and any applicable associated 
persons of such broker-dealers) document their compliance with the best 
execution standard in a consistently robust manner.\197\ Similarly, the 
proposed documentation requirement would help ensure that regulators 
have access to a consistent and minimum level of information in 
overseeing broker-dealers' efforts to satisfy the best execution 
standard in proposed Rule 1100 with respect to conflicted transactions 
with retail customers.
---------------------------------------------------------------------------

    \197\ For example, the written procedures concerning 
documentation could describe the obligations of various personnel 
within the broker-dealer with respect to this documentation 
requirement.
---------------------------------------------------------------------------

    Proposed Rule 1101(b)(3) would also require a broker-dealer to 
document any arrangement, whether written or oral, concerning payment 
for order flow, including but not limited to the parties to the 
arrangement, all qualitative and quantitative terms concerning the 
arrangement,\198\ and the date and terms of any changes\199\ to the 
arrangement.\200\ This proposed documentation requirement would 
complement the other requirements of proposed Rule 1101(b), and could 
facilitate a broker-dealer's understanding of the effect of such 
arrangements on its order handling and execution practices, and more 
broadly, on its compliance with the best execution standard and 
proposed Rules

[[Page 5469]]

1100-1102. This proposed requirement would also help ensure that 
regulators have fuller and more efficient access to details regarding 
broker-dealers' payment for order flow arrangements,\201\ which in turn 
should facilitate regulators' oversight of broker-dealers' compliance 
with the proposed rules by providing more context with respect to 
broker-dealers' operations, business model, and order handling and 
execution practices.
---------------------------------------------------------------------------

    \198\ Qualitative and quantitative terms would include any terms 
that impact the variability or establish a condition concerning 
payment for order flow. These could include, for example, any terms 
based on the characteristics of an order (e.g., size, marketability, 
held or not held, special order handling instructions, whether the 
order is a complex options order) and the type of security involved 
(e.g., whether the security is in the S&P 500 Index, ETF) or the 
price of a security.
    \199\ The proposed rule would require a broker-dealer to 
document the date and terms of any changes to an existing payment 
for order flow arrangement.
    \200\ This proposed requirement would apply whether or not there 
is any contractual obligation associated with the payment for order 
flow arrangement, and is intended to capture payment for order flow 
arrangements between broker-dealers and between broker-dealers and 
other markets, such as exchanges. Such documentation would be 
required in any scenario where payment for order flow is actually 
made or received by a broker-dealer. This proposed documentation 
requirement would also apply to rebates paid by an exchange to a 
broker-dealer in return for routing orders to the exchange. For 
example, a broker-dealer must document the specific rebate tiers 
that it qualifies for with respect to each exchange from which it 
receives payment for order flow. Furthermore, should a broker-dealer 
have an arrangement with an exchange for the establishment of a tier 
aimed at earning that broker-dealer's order flow, the broker-dealer 
must document that arrangement.
    \201\ Existing Commission rules, such as Rule 10b-10(d)(8), 17 
CFR 240.10b-10(d)(8), and Rule 606 under Regulation NMS, 17 CFR 
242.606, do not require the same level of detail with respect to the 
payment for order flow practices of broker-dealers that would be 
required under proposed Rule 1101(b)(3).
---------------------------------------------------------------------------

Request for Comment
    The Commission requests comment on all aspects of the proposed 
documentation requirement under proposed Rule 1101(b)(3), and in 
particular:
    84. Are the proposed documentation requirements appropriate? Why or 
why not?
    85. Should such documentation requirements apply only to broker-
dealers' conflicted transactions? Alternatively, should they apply to 
all transactions, including non-conflicted transactions? Or should they 
apply to all conflicted transactions and to a subset of non-conflicted 
transactions? Please explain.
    86. Should such documentation be required to be done pursuant to 
written procedures? Please explain.
    87. As proposed, a broker-dealer would need to document, for its 
conflicted transactions, its compliance with the best execution 
standard, including all efforts taken to enforce its best execution 
policies and procedures for conflicted transactions and the basis and 
information relied on for its determinations that the conflicted 
transactions would comply with the best execution standard. What 
challenges, if any, would a broker-dealer encounter in complying with 
the proposed documentation requirements? Would such challenges differ 
based on the type of security being traded or the type of broker-dealer 
engaging in the conflicted transactions? Please explain.
    88. Do commenters agree with the Commission's understanding that 
broker-dealers have varying degrees of documentation with respect to 
their best execution practices? Why or why not?
    89. Should the proposed documentation requirements apply only to 
certain types of conflicted transactions or for all types of conflicted 
transactions? Please explain.
    90. Should broker-dealers in the NMS stock and listed options 
markets be subject to the documentation requirements for the orders 
they execute on a principal basis, or for which they have paid or 
received payment for order flow, or routed to an affiliate, as 
proposed? Why or why not?
    91. Should broker-dealers in the corporate and municipal bond 
markets and government securities markets be subject to the 
documentation requirements for the orders they execute on a principal 
basis, as proposed? Why or why not?
    92. Are there other aspects of the proposed additional requirements 
for a broker-dealer's policies and procedures for conflicted 
transactions that should also be required to be documented? Please 
explain.
    93. Are there practices other than the proposed additional 
requirements for conflicted transactions that should be required to be 
documented? Please explain.
    94. Should a broker-dealer be required to document any payment for 
order flow arrangement, whether written or oral, as proposed? Why or 
why not? If so, should such documentation requirements include the 
parties to the arrangement, all qualitative and quantitative terms 
concerning the arrangement, and the date and terms of any changes to 
the arrangement? Why or why not? Are there other aspects of the 
arrangements that should also be included in the documentation 
requirement? If so, please describe.
    95. Are there other types of arrangements involving conflicted 
transactions that should also be subject to a documentation 
requirement? Please explain.
    96. Do commenters believe that the Commission should provide 
staggered compliance dates for proposed Rule 1101(b)(3) for broker-
dealers of different sizes, if the Commission adopts proposed 
Regulation Best Execution? For example, should the Commission provide 
longer compliance dates for smaller broker-dealers? If so, should the 
Commission define a smaller broker-dealer as a broker-dealer that 
qualifies as a ``small entity'' under the Regulatory Flexibility Act 
pursuant to 17 CFR 240.0-10(c) for this purpose? \202\ Or should the 
Commission define a smaller broker-dealer in a different way? Please 
explain.
---------------------------------------------------------------------------

    \202\ See supra note 151 and accompanying text (describing the 
broker-dealers that qualify as small entities under the Regulatory 
Flexibility Act).
---------------------------------------------------------------------------

3. Application of Proposed Rule 1101(b) to NMS Stock Market Conflicts 
of Interest
    Broker-dealers that engage in conflicted transactions for or with 
retail customers in NMS stocks would be required to comply with the 
additional policies and procedures requirements under proposed Rule 
1101(b). For example, a retail broker-dealer that receives payment for 
order flow from a wholesaler would need to establish, maintain, and 
enforce policies and procedures to address how it will evaluate 
additional liquidity sources that the broker-dealer would not need to 
evaluate if it did not receive payment for order flow. Therefore, in 
connection with a determination of whether to route customer orders to 
the wholesaler that pays for order flow, the retail broker-dealer could 
evaluate other exchanges, ATSs, or order exposure opportunities that 
may not have been determined by the retail broker-dealer to be material 
potential liquidity sources for non-conflicted transactions under 
proposed Rule 1101(a)(1).
    Retail broker-dealers that receive payment for order flow for 
retail customer orders must also comply with the documentation 
requirement under proposed Rule 1101(b)(3). For example, to the extent 
a retail broker-dealer attempts to execute customer orders prior to 
sending them to a wholesaler in return for payment, it could document 
such efforts by, for example, retaining a record of the markets at 
which it attempted to execute customer orders at prices better than the 
NBBO (e.g., markets pinged for midpoint liquidity),\203\ or documenting 
how it otherwise used reasonable diligence in assessing whether those 
markets may be the best market for customer orders. For retail 
nonmarketable orders routed to markets (e.g., exchanges) that pay 
rebates for those orders, a retail broker-dealer would need to document 
its basis for determining that routing orders to such markets would 
comply with the best execution standard, as well as the information 
relied on for such determination. It could do so by, for example, 
documenting its assessment of fill rates and the likelihood of 
execution for nonmarketable orders at such

[[Page 5470]]

markets as compared to other markets that do not provide such rebates.
---------------------------------------------------------------------------

    \203\ See supra note 196 (describing records and documentations 
under the CAT Plan). As discussed above in section IV.C.2, proposed 
Rule 1101(b)(3) would not require a broker-dealer to document its 
efforts to comply with the best execution standard with respect to 
its conflicted transactions in any specific way. However, the 
broker-dealer would need to document in accordance with its written 
procedures the basis and information relied on for its determination 
that its conflicted transactions would comply with the best 
execution standard.
---------------------------------------------------------------------------

    Furthermore, in documenting its determination that transactions 
that are conflicted due to payment for order flow from a wholesaler 
would comply with the best execution standard, a retail broker-dealer 
could document its process for evaluating and routing to wholesalers 
that pay it for order flow, including its assessment of wholesaler 
performance and any price improvement commitments. Additionally, a 
retail broker-dealer would be required to document its determination 
that customer transactions for which it receives payment for order flow 
would comply with the best execution standard.\204\ A retail broker-
dealer could do this by, for example, soliciting price improvement 
commitments from wholesalers for customer orders in the absence of 
payment for order flow and comparing those commitments to the price 
improvement commitments that the wholesaler would make if it were to 
pay the retail broker-dealer for order flow, and documenting these 
efforts. Finally, as described above in section IV.C.2, a retail 
broker-dealer would be required to document any arrangement concerning 
payment for order flow.
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    \204\ Similarly, FINRA has stated that broker-dealers may not 
negotiate the terms of order routing arrangements for customer 
orders in a manner that reduces the price improvement opportunities 
that, absent payment for order flow, otherwise would be available to 
those customer orders. See FINRA Regulatory Notice 21-23.
---------------------------------------------------------------------------

    A wholesaler that executes customer orders in a principal capacity 
or pays a retail broker-dealer for order flow would also be required to 
document its compliance with the best execution standard for conflicted 
transactions.\205\ For example, a wholesaler could document the prices 
received from those markets that it checked pursuant to its policies 
and procedures, such as by retaining a record of the markets at which 
it attempted to execute customer orders at prices better than the NBBO 
(e.g., markets pinged for midpoint liquidity) \206\ and by retaining 
records of market data feeds that the wholesaler uses when handling 
retail customer orders. A wholesaler could also document how it 
otherwise used reasonable diligence in its best execution 
determinations. For retail nonmarketable orders routed to markets that 
pay rebates for those orders, a wholesaler could document its basis for 
determining that routing to such markets would comply with the best 
execution standard and the information relied on for such determination 
by, for example, documenting its assessment of fill rates and the 
likelihood of execution for nonmarketable orders at such markets as 
compared to other markets that do not provide such rebates.
---------------------------------------------------------------------------

    \205\ See supra note 200.
    \206\ See supra note 203.
---------------------------------------------------------------------------

    The wholesaler would also be required to document any arrangement 
concerning payment for order flow as described above in section IV.C.2. 
Furthermore, the wholesaler would be required to document its 
determination that its transactions with customer orders that were sent 
to it in return for payment would comply with the best execution 
standard. For example, a wholesaler could document that it provides the 
same price improvement to the customers of retail broker-dealers to 
which it does not pay for order flow that it provides to the customers 
of broker-dealers to which it pays for order flow.
4. Application of Proposed Rule 1101(b) to the Options Market
    As discussed above, payment for order flow, principal trading, and 
affiliated routing conflicts of interest in the execution of retail 
customer orders also exist in the options market.\207\ Under proposed 
Rule 1101(b), a wholesaler that pays for order flow or transacts with 
retail customers in a principal capacity would need to establish, 
maintain, and enforce policies and procedures for conflicted 
transactions that address how it will obtain and assess information 
beyond that required by proposed Rule 1101(a)(1)(i) and evaluate a 
broader range of liquidity sources, including a broader range of order 
exposure opportunities, which could include an evaluation of whether 
any price improvement auctions may provide an opportunity to execute a 
customer order at a price that is better than the displayed best bid 
and offer.\208\
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    \207\ See supra section III.A.2 (discussing the payment for 
order flow, affiliated routing and principal trading conflicts of 
interest in the options market).
    \208\ As discussed above, the wholesaler's policies and 
procedures that would be required by proposed Rule 1101(a)(1) could 
address how the wholesaler assesses price improvement auctions, 
including their relative competitiveness, when identifying material 
potential liquidity sources. A similar assessment would be required 
under proposed Rule 1101(b)(2) for a broader range of order exposure 
opportunities that may result in the most favorable price for 
customer orders. A wholesaler's best execution policies and 
procedures that favor one price improvement auction when other, more 
competitive, price improvement auctions exist may be relevant to an 
assessment of whether such policies and procedures are reasonably 
designed to identify material potential liquidity sources or to 
evaluate a broader range of order exposure opportunities that may 
result in the most favorable price for the customer order, as 
required by proposed Rules 1101(a) and 1101(b).
---------------------------------------------------------------------------

    Under proposed Rule 1101(b)(3), a wholesaler that engages in 
conflicted transactions would also be required to document, in 
accordance with written procedures, its compliance with the best 
execution standard for such conflicted transactions, including all 
efforts to enforce its policies and procedures for conflicted 
transactions and the basis and information relied on for its 
determinations that such conflicted transactions would comply with the 
best execution standard. For example, as with conflicted transactions 
in NMS stocks, a wholesaler could document the prices received from 
those markets that it checked pursuant to its policies and procedures, 
such as by retaining records of market data feeds that the wholesaler 
uses when handling retail customer orders. The wholesaler's 
documentation could also include a description of its decision making 
process for routing retail customer orders to execute against the 
wholesaler's or its affiliates' displayed prices on exchanges and when 
it chooses to execute through a price improvement auction that may 
provide an opportunity for price improvement. For retail nonmarketable 
orders routed to markets that pay rebates for those orders, a 
wholesaler would need to document its basis for determining that 
routing to such markets would comply with the best execution standard 
and the information relied on for such determination. It could do so 
by, for example, documenting its assessment of fill rates and the 
likelihood of execution for nonmarketable orders at such markets as 
compared to other markets that do not provide such rebates.
    The wholesaler would also be required to document any arrangement 
concerning payment for order flow as described above in section IV.C.2. 
Furthermore, the wholesaler would be required to document its 
determination that its transactions with the customer orders that were 
sent to it in return for payment would comply with the best execution 
standard. For example, a wholesaler could document that it provides the 
same execution quality to the customers of retail broker-dealers to 
which it does not pay for order flow that it provides to the customers 
of broker-dealers to which it pays for order flow.
    A retail broker-dealer in the listed options market would be 
engaged in a conflicted transaction under proposed Rule 1101(b) if it 
receives payment for order flow and its policies and procedures would 
have to address how it evaluates a broader range of markets, including 
opportunities to expose customer orders for the most favorable price. A 
retail broker-dealer's policies

[[Page 5471]]

and procedures could evaluate wholesaler practices concerning the use 
of price improvement auctions and whether such wholesalers are 
appropriately considering a broader range of opportunities to expose 
customer orders and identifying exposure opportunities that are 
designed to enhance competition for customer orders.
    Retail broker-dealers that accept payment for order flow for retail 
customer orders would also be required to comply with the documentation 
requirement under proposed Rule 1101(b)(3). To the extent a retail 
broker-dealer routes retail customer nonmarketable orders to markets 
that pay rebates for those orders, a retail broker-dealer would need to 
document its basis for determining that routing to such markets would 
comply with the best execution standard and the information relied on 
for such determination. It could do so by, for example, documenting its 
assessment of fill rates and the likelihood of execution for 
nonmarketable orders at such markets as compared to other markets that 
do not provide such rebates.
    Furthermore, in documenting its determination that transactions 
conflicted due to payment for order flow from a wholesaler would comply 
with the best execution standard, a retail broker-dealer could document 
its process for evaluating and routing to wholesalers that pay it for 
order flow, including its assessment of wholesaler performance and any 
price improvement commitments. Additionally, under proposed Rule 
1101(b)(3), a retail broker-dealer would need to document its 
determination that customer transactions for which it receives payment 
for order flow would comply with the best execution standard and the 
information relied on for such determination. A retail broker-dealer 
could do this by, for example, soliciting price improvement commitments 
from wholesalers for customer orders in the absence of payment for 
order flow and comparing those commitments to the price improvement 
commitments that the wholesaler would make if it were to pay the retail 
broker-dealer for order flow. Finally, a retail broker-dealer would be 
required to document any arrangement concerning payment for order flow, 
as described above in section IV.C.2.
5. Application of Proposed Rule 1101(b) to the Corporate and Municipal 
Bond Markets and Government Securities Markets
    Many broker-dealers in the corporate and municipal bond markets and 
government securities markets trade with retail customers in a 
principal capacity and therefore engage in conflicted transactions. 
Such broker-dealers would also be subject to proposed Rule 1101(b) with 
respect to their conflicted transactions. A broker-dealer's policies 
and procedures for conflicted transactions would be required to address 
how it will evaluate a broader range of markets, including a broader 
range of order exposure opportunities. This could include evaluation of 
a broader range of ATSs, broker's brokers, RFQ systems, and other 
broker-dealers that trade corporate and municipal bonds and government 
securities, than the markets that the broker-dealer identifies as 
material potential liquidity sources under proposed Rule 1101(a)(1).
    Under proposed Rule 1101(b)(3), a retail broker-dealer that trades 
in a principal capacity with retail customers would be required to 
document, in accordance with written procedures, its compliance with 
the best execution standard for conflicted transactions, including all 
efforts taken to enforce its policies and procedures for conflicted 
transactions and the basis and information relied on for its 
determinations that such conflicted transactions would comply with the 
best execution standard. In doing so, a retail broker-dealer could 
retain records of any data feeds or other pricing information that the 
retail broker-dealer uses when handling retail customer orders, 
including ATS data feeds, responses to RFQs, transaction prices, and 
evaluated pricing information.\209\ In documenting its efforts to 
comply with the best execution standard, a retail broker-dealer could 
also document its order handling practices that can impact whether 
customer orders are executed in compliance with the best execution 
standard. This could include, for example, its practices concerning the 
use of RFQ systems, including its filtering, response time, and last 
look practices and how those practices promote the execution of retail 
customer orders in a manner that complies with the best execution 
standard. Finally, broker-dealers could document their markup policies 
for principal trades, including documenting how the broker-dealer 
assesses markups for trades with customers and any variation in its 
markups depending on the nature of the transaction (e.g., riskless 
principal trades versus trades with the broker-dealer's inventory).
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    \209\ As discussed above in section IV.C.2, proposed Rule 
1101(b)(3) would not require a broker-dealer to document its efforts 
to comply with the best execution standard with respect to its 
conflicted transactions in any specific way. However, the broker-
dealer would need to document the basis and information relied on 
for its determination that its conflicted transactions would comply 
with the best execution standard, and the Commission preliminarily 
believes that the manner of documentation may vary depending on 
asset class. For example, a broker-dealer's best execution policies 
and procedures may provide for more individualized handling of 
customer orders in corporate and municipal bonds and government 
securities than in equities securities. Accordingly, the broker-
dealer's documentation for conflicted retail transactions in 
corporate and municipal bonds and government securities would need 
to reflect the more individualized best execution process.
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Request for Comment
    The Commission requests comment on the application of proposed Rule 
1101(b) to the NMS stock, options, corporate and municipal bond 
markets, and government securities markets, and in particular:
    97. Has the Commission appropriately described the various 
practices in sections IV.C.3-5 that should be addressed in a broker-
dealer's policies and procedures for conflicted transactions? Please 
explain.
    98. Are there other practices not described in sections IV.C.3-5 
that should be addressed in a broker-dealer's policies and procedures 
for conflicted transactions, or any that are described that should be 
not be addressed? Please explain.

D. Proposed Rule 1101(c)--Regular Review of Execution Quality

    Proposed Rule 1101(c) would require a broker-dealer, no less 
frequently than quarterly, to review the execution quality of its 
transactions for or with its customers or customers of another broker-
dealer, and how such execution quality compares with the execution 
quality the broker-dealer might have obtained from other markets, and 
to revise its best execution policies and procedures, including its 
order handling and routing practices, accordingly. Proposed Rule 
1101(c) would also require a broker-dealer to document the results of 
this review.
    While the Commission understands that broker-dealers generally 
currently conduct certain execution quality reviews,\210\ including 
pursuant to

[[Page 5472]]

FINRA's best execution rule, the scope of proposed Rule 1101(c) differs 
from FINRA's best execution rule in that it would apply to a broader 
range of broker-dealers.\211\ Specifically, while FINRA's execution 
quality review requirement applies only to a broker-dealer that routes 
customer orders to other broker-dealers for execution on an automated, 
nondiscretionary basis or that internalizes customer order flow,\212\ 
proposed Rule 1101(c) would apply to all broker-dealers that are not 
introducing brokers (discussed in section IV.E below) that transact for 
or with customers. The Commission preliminarily believes that it would 
be beneficial to customers for a broader range of broker-dealers to 
regularly review the execution quality that their customer orders 
receive. Aside from this distinction in scope, proposed Rule 1101(c) is 
designed to be consistent with FINRA Rule 5310.09.
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    \210\ FINRA describes the findings from its best execution exams 
in an annual report. See, e.g., 2022 Report on FINRA's Examination 
and Risk Monitoring Program, supra note 185, at 44-45 (describing 
FINRA exam findings, including: not comparing the quality of the 
execution obtained via firms' existing order-routing and execution 
arrangements against the quality of execution they could have 
obtained from competing markets; not conducting adequate reviews on 
a type-of-order basis, including, for example, on market, marketable 
limit, or non-marketable limit orders; not considering certain 
factors set forth in FINRA Rule 5310 when conducting a ``regular and 
rigorous review,'' including, among other things, speed of 
execution, price improvement and the likelihood of execution of 
limit orders; and using routing logic that was not necessarily based 
on quality of execution).
    \211\ The MSRB rule does not require broker-dealers to conduct 
quarterly (or more frequent) comparative analysis of execution 
quality. Rather, MSRB Rule G-18 requires an annual review of the 
broker-dealer's policies and procedures that takes ``into account 
the quality of the executions the [broker-dealer] is obtaining under 
its current policies and procedures, changes in market structure, 
new entrants, the availability of additional pre-trade and post-
trade data, and the availability of new technologies'' and requires 
the broker-dealer ``to make promptly any necessary modifications to 
such policies and procedures as may be appropriate in light of such 
reviews.'' See MSRB Rule G-18.08(a).
    \212\ See FINRA Rule 5310.09.
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    The requirements of proposed Rule 1101(c) would complement a 
broker-dealer's policies and procedures concerning how it will comply 
with the proposed best execution standard and the determination of the 
best market for customer orders, as well as the additional policies and 
procedures for conflicted transactions. As proposed, a broker-dealer 
must compare the execution quality it obtains via its current order 
routing and execution arrangements (including through the 
internalization of its order flow or executing its order flow through 
another broker-dealer in a wholesaler or other arrangement) to the 
execution quality it might have obtained from other markets. A broker-
dealer would not meet the requirements of proposed Rule 1101(c) if it 
solely conducted its review based on the markets to which it currently 
routes customer orders without considering other markets or trading 
venues.\213\ Rather, a broker-dealer would be required to consider the 
potential execution quality at trading venues that it does not 
currently use to execute customer orders, including new markets to the 
extent they become available, and consider whether it needs to access 
such markets in order to attain best execution for its customer 
orders.\214\
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    \213\ This is consistent with FINRA's rule concerning the review 
of execution quality. See FINRA Rule 5310.09(b) (``To assure that 
order flow is directed to markets providing the most beneficial 
terms for their customers' orders, the member must compare, among 
other things, the quality of the executions the member is obtaining 
via current order routing and execution arrangements (including the 
internalization of order flow) to the quality of the executions that 
the member could obtain from competing markets.'').
    \214\ FINRA has pursued enforcement against broker-dealers 
relating to compliance with FINRA Rule 5310.09 concerning the 
regular and rigorous review of execution quality. See, e.g., 
TradeStation Securities, Inc., Letter of Acceptance, Waiver and 
Consent (FINRA Case No. 2014041812501) (Mar. 2021) (describing 
violations of FINRA's best execution rule where the firm ``did not 
exercise reasonable diligence to ascertain whether the venues where 
it routed certain equity and option customer orders provided the 
best market for the subject securities as compared to the execution 
quality that was being provided at competing markets''); Robinhood 
FINRA, supra note 69 (describing violations of FINRA's best 
execution rule where the firm routed its customers' orders to four 
broker-dealers that all paid for order flow and ``did not exercise 
reasonable diligence to ascertain whether these four broker-dealers 
provided the best market for the subject securities to ensure its 
customers received the best execution quality from these as compared 
to other execution venues''); E*Trade Securities LLC, Letter of 
Acceptance, Waiver, and Consent (FINRA Case No. 20130368815-01) 
(June 2016) (describing violations of FINRA's best execution rule 
where the firm lacked sufficient information to reasonably assess 
the execution quality it provided to its customer because, among 
other things, the firm ``did not take into account the 
internalization model employed by the firm'' and ``was overly 
reliant on comparisons of the firm's overall execution quality with 
industry and custom averages, rather than focusing on comparisons to 
the actual execution quality provided by the market centers to which 
the firm routed orders'').
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    In reviewing and comparing the execution quality of its customer 
transactions to the execution quality that might have been obtained 
from other markets, a broker-dealer could consider various factors, 
including price improvement opportunities, differences in price 
disimprovement,\215\ likelihood of execution of limit orders, speed of 
execution, size of execution, transaction costs, customer needs and 
expectations, and the existence of internalization or payment for order 
flow arrangements.\216\ Furthermore, a broker-dealer that routinely 
routes customer orders to multiple trading centers, whether internal or 
external, could evaluate the latency impacts, fill rates, information 
leakage, and resulting execution quality harms.\217\ And when 
conducting these reviews, a broker-dealer could consider the procedures 
it uses or would use for executing the same or similar transactions for 
its own accounts.\218\ The Commission believes that, when compared to 
the execution quality that the broker-dealer might have obtained from 
other markets, the review could help the broker-dealer evaluate the 
effectiveness of its current best execution policies and procedures, 
including its order handling practices, and enable the broker-dealer to 
make informed judgments regarding whether these policies and procedures 
and practices need to be modified.
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    \215\ Price disimprovement occurs when a customer receives a 
worse price than the best quotes prevailing at the time the order is 
received by the market. See, e.g., FINRA Rule 5310.09(b)(2).
    \216\ These considerations are consistent with FINRA's rule 
regarding the review of execution quality. See FINRA Rule 5310.09(b) 
(providing that, in reviewing and comparing the execution quality of 
its current order routing and execution arrangements to the 
execution quality of other markets, a member should consider: (1) 
price improvement opportunities; (2) differences in price 
disimprovement; (3) the likelihood of execution of limit orders; (4) 
the speed of execution; (5) the size of execution; (6) transaction 
costs; (7) customer needs and expectations; and (8) the existence of 
internalization or payment for order flow arrangements).
    \217\ This is also consistent with existing FINRA guidance 
concerning these types of reviews. See FINRA Regulatory Notice 15-
46, at 4-5.
    \218\ This is consistent with existing FINRA guidance. See FINRA 
Regulatory Notice 15-46, at 4-5. FINRA states that ``firms should 
consider the risk of information leakage by routing orders to a 
particular venue in light of the fill rates achieved at that venue 
and carefully assess whether the risks outweigh the potential for an 
execution.'' Id. at 5.
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    As described in this section IV.D above, proposed Rule 1101(c) 
would apply to a broader range of broker-dealers than FINRA Rule 
5310.09. However, the substantive review requirements of proposed Rule 
1101(c) are similar to FINRA Rule 5310.09, which requires a broker-
dealer to compare, among other things, the quality of the executions it 
is obtaining via current order routing and execution arrangements to 
the quality of the executions that the broker-dealer could obtain from 
competing markets.
    While the review under FINRA Rule 5310.09 must be conducted on a 
security-by-security, type-of-order basis (e.g., limit order, market 
order, and market on open order), proposed Rule 1101(c) does not 
provide this level of specificity concerning the manner of execution 
quality reviews. The Commission believes that execution quality reviews 
would differ based on the characteristics of a market or of a broker-
dealer's business, and the methods for conducting execution quality 
reviews would evolve over time

[[Page 5473]]

based on the availability of data and advancements in technology. A 
broker-dealer generally should conduct such reviews in a manner that 
will provide it with robust information concerning its customer orders' 
execution quality so that it can assess whether it needs to revise its 
best execution policies and procedures. In doing so, a broker-dealer 
should exercise its expertise and judgment in this regard and the 
manner of its execution quality reviews may be tailored to reflect 
various factors (e.g., whether the broker-dealer engages in conflicted 
transactions, the sizes of customer orders).\219\
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    \219\ Under FINRA Rule 5310.09, a broker-dealer must have 
procedures in place to ensure it periodically conducts regular and 
rigorous reviews of the quality of the executions of its customers' 
orders if it does not conduct an order-by-order review. FINRA has 
stated in a regulatory notice that broker-dealers must conduct 
order-by-order best execution reviews rather than relying on regular 
and rigorous reviews in certain circumstances. In particular, FINRA 
has stated that a ``regular and rigorous review alone (as opposed to 
an order-by-order review) may not satisfy best execution 
requirements, given that the execution of larger-size orders `often 
requires more judgment in terms of market timing and capital 
commitment.' '' FINRA has also stated that ``[o]rders that a firm 
determines to execute internally are subject to an order-by-order 
best execution analysis.'' Finally, FINRA has recognized that 
advances in order routing technology make order-by-order reviews of 
execution quality for a range of orders in all equity and 
standardized options increasingly possible. See FINRA Regulatory 
Notice 15-46, at 3-4. As stated above, proposed Regulation Best 
Execution would not affect a broker-dealer's obligation to comply 
with the FINRA or MSRB best execution rule. Accordingly, a broker-
dealer would be required to comply with proposed Regulation Best 
Execution, in addition to the FINRA and MSRB best execution rules, 
as applicable. See supra note 109 and accompanying text. To the 
extent FINRA or the MSRB impose more specific requirements than 
proposed Regulation Best Execution, broker-dealers must continue to 
comply with those requirements, as applicable.
---------------------------------------------------------------------------

    FINRA Rule 5310.09 also requires a broker-dealer to determine 
whether any material differences in execution quality exist among the 
markets trading the security and, if so, modify its routing 
arrangements or justify why it is not modifying its routing 
arrangements. While proposed Rule 1101(c) does not include 
``materiality'' language or require a broker-dealer to justify why it 
is not modifying its routing arrangements, these concepts are 
consistent with the language of proposed Rule 1101(c). Proposed Rule 
1101(c) states that a broker-dealer would be obligated to ``revise its 
best execution policies and procedures, including its order handling 
practices, accordingly'' after it has conducted its comparative 
execution quality analysis. The Commission preliminarily believes that 
revisions to the broker-dealer's policies and procedures, including its 
order handling practices, would be appropriate if there were material 
differences in execution quality that were not otherwise justifiable. 
Moreover, proposed amendments to Rule 17a-4 would require a broker-
dealer to retain documentation of the results of its execution quality 
review, which could include any justifications for not modifying its 
policies and procedures if a comparative analysis revealed material 
differences in execution quality.\220\
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    \220\ For a discussion of recordkeeping requirements of the 
proposed rules, see infra section IV.G.
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    MSRB rules do not require broker-dealers to conduct comparative 
analysis of execution quality.\221\ Rather, MSRB Rule G-18.08 states 
that, when conducting its periodic reviews, a broker-dealer must assess 
whether its policies and procedures are reasonably designed to achieve 
best execution, taking into account the quality of the executions the 
broker-dealer is obtaining under its current policies and procedures, 
changes in market structure, new entrants, the availability of 
additional pre-trade and post-trade data, and the availability of new 
technologies, and make promptly any necessary modifications to such 
policies and procedures as may be appropriate in light of such reviews. 
While MSRB Rule G-18.08 reflects an execution quality review by broker-
dealers, proposed Rule 1101(c) would impose a specific requirement for 
review of execution quality on at least a quarterly basis, including a 
comparative analysis requirement, for all broker-dealers regardless of 
whether they are currently subject to MSRB or FINRA rules.
---------------------------------------------------------------------------

    \221\ See supra note 211.
---------------------------------------------------------------------------

    Proposed Rule 1101(c) would require a broker-dealer to review the 
execution quality of customer orders no less frequently than 
quarterly.\222\ In complying with the proposed rule, a broker-dealer 
should determine the appropriate frequency of review by considering, 
for example: the nature of its business; the asset class transacted; 
new pools of liquidity, trading protocols, or sources of data that have 
emerged; the availability of technology needed to conduct execution 
quality reviews; and the level of transparency in a particular market. 
In doing so, the Commission believes that, in many cases, broker-
dealers may determine that a more frequent review of execution quality 
than quarterly is appropriate. For example, market participants subject 
to Rule 605 of Regulation NMS are required to disclose on a monthly 
basis certain execution quality statistics in NMS stocks. These Rule 
605 reports provide a broker-dealer with information that it could use 
to evaluate the execution quality of customer transactions in NMS 
stocks more frequently than quarterly.\223\ In contrast, a broker-
dealer may determine that it is appropriate to review the execution 
quality of customer transactions in non-NMS stocks less frequently due 
to the characteristics of those other markets.\224\
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    \222\ FINRA also requires a broker-dealer to conduct regular and 
rigorous reviews of its customer execution quality at least 
quarterly, but has specified that a broker-dealer should consider, 
based on its business, whether more frequent reviews are needed. See 
FINRA Rule 5310.09; FINRA Regulatory Notice 15-46, at 4. MSRB Rule 
G-18 requires a broker-dealer to, at a minimum, conduct annual 
reviews of its policies and procedures for determining the best 
available market for the executions of its customers' transactions, 
but the broker-dealer should consider a frequency reasonably related 
to the nature of its municipal securities business, including but 
not limited to its level of sales and trading activity. See MSRB 
Rule G-18.08(a).
    \223\ FINRA has stated that some broker-dealers conduct monthly 
reviews of execution quality, recognizing that market participants 
are required to publish Rule 605 execution quality statistics on a 
monthly basis. See FINRA Regulatory Notice 15-46, at 4, 15 n.21.
    \224\ FINRA has also stated that orders in the fixed income 
market may be handled and executed differently than in equity and 
options markets. Because of these differences, FINRA stated that 
broker-dealers may determine to conduct execution quality reviews of 
such securities under FINRA's rule less frequently than for equities 
and options. See FINRA Regulatory Notice 15-46, at 8.
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    Finally, proposed Rule 1101(c) would require a broker-dealer to 
document the results of its execution quality reviews.\225\ By 
documenting its execution quality reviews, a broker-dealer would 
maintain and preserve a robust record of its order execution quality 
over time that could assist the broker-dealer to better evaluate the 
effectiveness of its best execution policies and procedures, including 
its order handling practices, on an ongoing basis. Similarly, such 
documentation would allow regulators to more effectively oversee the 
broker-dealer's efforts to meet the best execution standard of proposed 
Rule 1100 and the requirements of proposed Rules 1101 and 1102.
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    \225\ See proposed amendments to Rule 17a-4; infra section IV.G 
(describing the recordkeeping obligations applicable to any 
documentation made pursuant to proposed Regulation Best Execution).
---------------------------------------------------------------------------

Request for Comment
    The Commission requests comment on all aspects of proposed Rule 
1101(c), and in particular:
    99. Should broker-dealers be required to conduct reviews of 
execution quality of their transactions for or with customers at least 
quarterly, including how such execution quality compares with the 
execution quality that might

[[Page 5474]]

have been obtained from other markets, as required by proposed Rule 
1101(c)? Why or why not? Should broker-dealers document the results of 
their execution quality reviews, as required by proposed Rule 1101(c)? 
Why or why not?
    100. Should a review of execution quality include factors similar 
to those identified in FINRA rules and guidance, such as price 
improvement opportunities, differences in price disimprovement, 
likelihood of execution of customer limit orders, speed of execution, 
size of execution, transaction costs, customer needs and expectations, 
and the existence of internalization or payment for order flow 
arrangements? Why or why not? Are there other factors that should also 
be included in a review of execution quality? If so, please explain. 
Should these factors be specified in proposed Rule 1101(c)? Please 
explain.
    101. Would the proposed documentation requirement improve the 
utility of the reviews of execution quality by a broker-dealer? Please 
explain. Should the proposed rule include other specific documentation 
requirements to supplement the documentation of the execution quality 
reviews? If so, please explain.
    102. Should proposed Rule 1101(c) apply to broker-dealers that 
currently rely on their executing brokers to conduct such reviews, if 
they otherwise would not qualify as introducing brokers as defined in 
proposed Rule 1101(d) and discussed in section IV.E below? Please 
explain. Would broker-dealers that currently rely on the execution 
quality reviews of their executing brokers (and do not qualify as 
introducing brokers as defined in proposed Rule 1101(d) and discussed 
in section IV.E below) have the resources and expertise to conduct the 
reviews required by proposed Rule 1101(c)? Would such broker-dealers 
have the information necessary to compare the executions received for 
their customers and the customers of other broker-dealers with the 
execution quality that could have been obtained on other markets to 
which they did not route customer orders? Please explain.
    103. Should the Commission require a different frequency for the 
reviews of execution quality? If so, how frequently should such reviews 
be required and should the frequency be different for different asset 
classes? Should the frequency be monthly, semi-annually, annually, or 
another time period? Please explain.
    104. Should the frequency of such reviews be dependent on any 
unique characteristics of the broker-dealer, its customers, its order 
flow, or the securities traded? For example, should the frequency 
standard be at least monthly for reviews of execution quality for NMS 
stocks because broker-dealers and market centers are required to 
disclose execution quality on a monthly basis under Rules 605 of 
Regulation NMS? Or does the availability of Rule 605 reports suggest 
that reviews of execution quality in NMS stocks should be less 
frequent? Please explain.
    105. Should broker-dealers that handle and execute customer 
municipal bond orders be required to conduct reviews of execution 
quality at least quarterly as required by proposed Rule 1101(c)? Please 
explain. Is there a different frequency for these reviews that would be 
more appropriate for the municipal bond market? If so, please explain. 
Is there a frequency standard that would be more appropriate for other 
fixed income markets, such as the corporate bond and government 
securities markets? Is it appropriate to require that a broker-dealer's 
best execution policies and procedures, including its order handling 
practices, be revised based on the outcome of the proposed execution 
quality reviews? Please explain. Should there be more specificity 
concerning when a broker-dealer would be required to revise its best 
execution policies and procedures, including its order handling 
practices? For example, should the rule specify that best execution 
policies and procedures, including order handling practices, must be 
revised if the broker-dealer identifies material differences in 
execution quality among the various markets and trading venues that 
trade the applicable security? Please explain.
    106. Should the proposed requirement that a broker-dealer revise 
its best execution policies and procedures, including its order 
handling practices, based on its review of execution quality apply 
differently depending on the type of asset class or any unique 
characteristics of the broker-dealer, its customers, its order flow, or 
the securities traded? Please explain.
    107. Do commenters agree with the Commission's understanding that 
broker-dealers currently conduct certain execution quality reviews and 
those reviews vary in rigor? Please describe the frequency and rigor of 
any such reviews and whether broker-dealers document the results of 
such reviews.
    108. Do commenters believe that the Commission should provide 
staggered compliance dates for proposed Rule 1101(c) for broker-dealers 
of different sizes, if the Commission adopts proposed Regulation Best 
Execution? For example, should the Commission provide longer compliance 
dates for smaller broker-dealers? If so, should the Commission define a 
smaller broker-dealer as a broker-dealer that qualifies as a ``small 
entity'' under the Regulatory Flexibility Act pursuant to 17 CFR 240.0-
10(c) for this purpose? \226\ Or should the Commission define a smaller 
broker-dealer in a different way? Please explain.
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    \226\ See supra note 151 and accompanying text (describing the 
broker-dealers that qualify as small entities under the Regulatory 
Flexibility Act).
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E. Proposed Rule 1101(d)--Introducing Brokers

    Proposed Rule 1101(d) would permit a broker-dealer that qualifies 
as an introducing broker to rely on its executing broker to comply with 
proposed Rules 1101(a), (b), and (c), subject to certain review 
requirements.
    Broker-dealers have different business models, including whether 
they accept, and the extent to which they handle and execute, customer 
orders. Certain broker-dealers commit their own capital by executing 
customer transactions on a principal basis, while some broker-dealers 
employ an agency model that requires them to find another buyer or 
seller in order to execute a customer order. The sizes and resources of 
broker-dealers also vary, with some broker-dealers carrying the 
accounts of millions of customers, while others carry few customer 
accounts and employ significantly fewer in-house personnel.
    Many broker-dealers do not provide the service of holding customer 
funds and securities and instead enter into agreements with other 
broker-dealers to provide such services and handle and execute their 
customers' orders. Such agreements generally allocate various functions 
among the broker-dealers, including the opening and approval of 
accounts, acceptance of orders, transmission of orders for execution, 
execution of orders, extension of credit, receipt and delivery of funds 
and securities, preparation and transmission of confirmations, 
maintenance of books and records, and monitoring of accounts.\227\ 
Typically, a broker-dealer that does not carry customer accounts enters 
into an agreement with another broker-dealer that would require the 
initial broker-dealer to transmit all of its customer orders to the 
other broker-dealer for order handling and execution. In this 
circumstance, the second broker-dealer, which accepts the 
responsibility to handle and execute the customer orders, would be 
subject to the full obligations of proposed Regulation Best

[[Page 5475]]

Execution. On the other hand, the first broker-dealer is not making any 
decisions or exercising discretion regarding the manner in which its 
customer orders will be handled and executed, beyond its determination 
to engage the services of the second broker-dealer, and it would not be 
subject to the full obligations of proposed Regulation Best Execution.
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    \227\ See FINRA Rule 4311 (establishing standards for carrying 
agreements between executing firms and introducing firms).
---------------------------------------------------------------------------

    FINRA Rule 5310.09(c) provides that a broker-dealer that routes its 
order flow to another broker-dealer that has agreed to handle that 
order flow as agent for the customer can rely on that broker-dealer's 
regular and rigorous review, as long as the statistical results and 
rationale of the review are fully disclosed to the first broker-dealer 
and the first broker-dealer periodically reviews how the review is 
conducted, as well as the results of the review.\228\ MSRB Rule G-
18.08(b) provides that a broker-dealer that routes its customers' 
transactions to another broker-dealer that has agreed to handle those 
transactions as agent or riskless principal for the customer may rely 
on that other broker-dealer's periodic reviews as long as the results 
and rationale of the review are fully disclosed to the first broker-
dealer and the first broker-dealer periodically reviews how the other 
broker-dealer's review is conducted and the results of the review.\229\ 
As discussed in section IV.E.1 below, the exemption under proposed Rule 
1101(d) would be provided to a narrower group of broker-dealers than 
contemplated by FINRA and MSRB rules, because it would apply only to 
broker-dealers that meet the proposed definition of ``introducing 
broker.'' Accordingly, certain broker-dealers that qualify under the 
current FINRA and MSRB exemptions may not similarly qualify for the 
exemption under proposed Rule 1101(d), absent a change in business 
practices that would allow them to meet the additional criteria 
described below in section IV.E.1. Moreover, as discussed in section 
IV.E.2 below, the exemption under proposed Rule 1101(d) would require 
the introducing broker's policies and procedures to provide for 
comparisons between the execution quality obtained from its executing 
broker and the execution quality it might have obtained from other 
executing brokers, which would be a more specific policies and 
procedures obligation for introducing brokers than required under the 
current FINRA and MSRB rules. Finally, a broker-dealer that qualifies 
as an introducing broker under proposed Rule 1101(d) would be exempt 
from the requirement to separately comply with proposed Rules 1101(a), 
(b), and (c), while the FINRA and MSRB rules only provide certain 
broker-dealers with exemptions from conducting either the regular and 
rigorous execution quality review under the FINRA rule or the periodic 
review under the MSRB rule.
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    \228\ See FINRA Rule 5310.09(c).
    \229\ See MSRB Rule G-18.08(b). The MSRB has further interpreted 
the obligations of introducing brokers under this provision. See 
MSRB Implementation Guidance on MSRB Rule G-18, on Best Execution, 
at Section II.1 (last updated Feb. 7, 2019) (``Under this provision, 
introducing dealers may rely on the best-execution policies and 
procedures of their clearing firms or other executing dealers, all 
of which are subject to their own best-execution obligations under 
the rule. An introducing dealer, however, is not relieved of its 
obligations to establish written policies and procedures of its own. 
For example, such an introducing dealer's policies and procedures 
could provide for the reliance on another dealer's policies and 
procedures and periodic reviews by the introducing dealer of the 
other dealer's reviews of its policies and procedures.'').
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1. Definition of Introducing Broker and Executing Broker
    For purpose of proposed Rule 1101(d), the Commission would define 
an ``introducing broker'' as a broker-dealer that: (1) does not carry 
customer accounts and does not hold customer funds or securities; (2) 
has entered into an arrangement with an unaffiliated broker-dealer that 
has agreed to handle and execute on an agency basis all of the 
introducing broker's customer orders (``executing broker''); and (3) 
has not accepted any monetary payment, service, property, or other 
benefit that results in remuneration, compensation, or consideration 
from the executing broker in return for the routing of the introducing 
broker's customer orders to the executing broker.\230\ Broadly, these 
proposed conditions are designed to identify those entities that, due 
to their business models, expertise, and resources, need to be able to 
rely on their executing brokers, and to ensure that these entities do 
not have order handling conflicts of interest such that their reliance 
on their executing brokers would be appropriate.
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    \230\ This proposed definition of ``introducing broker'' would 
be used only for purposes of proposed Rule 1101(d), and would not 
affect the use of this term under existing Exchange Act rules. See, 
e.g., 17 CFR 240.15c3-3 (defining introducing broker as a broker-
dealer that ``clears all transactions with and for customers on a 
fully disclosed basis with a clearing broker or dealer, and who 
promptly transmits all customer funds and securities to the clearing 
broker or dealer which carries all of the accounts of such customers 
and maintains and preserves such books and records pertaining 
thereto . . . as are customarily made and kept by a clearing broker 
or dealer''). While the term ``introducing broker'' is defined 
differently for purposes of other Commission rules, the Commission 
preliminarily believes the definition in proposed Rule 1101(d) is 
appropriately tailored for application in the best execution 
context. As discussed in this section, the proposed definition is 
designed to identify introducing brokers that rely on their 
executing brokers and to ensure that they do not have order handling 
conflicts of interest in their reliance on their executing brokers. 
See also section IV.E.1 (describing FINRA Rule 5310.09(c), MSRB Rule 
G-18.08(b), and the definition of introducing broker in proposed 
Rule 1101(d)).
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    The first proposed condition of this definition (in proposed 
paragraph (d)(1)) would require that an introducing broker not carry 
customer accounts or hold customer funds or securities. This proposed 
condition is designed to identify those broker-dealers that do not 
handle or execute customer orders and therefore need to enter into 
arrangements with other broker-dealers to provide those services. The 
Commission preliminarily believes that this proposed condition would 
identify broker-dealers that do not exercise any discretion with 
respect to how their customer orders are handled and executed, beyond 
the selection of the executing broker. Because these introducing 
brokers do not handle or execute customer orders in a manner that would 
warrant the application of the proposed best execution rules, the 
Commission proposes to permit these broker-dealers to rely on their 
executing brokers for purposes of complying with proposed Rules 
1101(a), (b), and (c). In addition, these introducing brokers may not 
be in a position to implement certain of the proposed best execution 
rules because they have chosen to outsource order handling and 
execution functions to another broker-dealer.
    The second proposed condition in the definition (in proposed 
paragraph (d)(2)) would require an introducing broker to enter into an 
arrangement with an unaffiliated broker-dealer that has agreed to 
handle and execute on an agency basis all of the introducing broker's 
customer orders. This proposed condition contains several elements. 
First, the proposed requirement that an arrangement be in place for the 
handling and execution of all customer orders by another broker-dealer 
would help ensure that the introducing broker does not exercise 
discretion concerning the routing and execution of customer orders in a 
manner that would otherwise necessitate the application of all of the 
provisions of proposed Regulation Best Execution.\231\ Second, the 
introducing broker would be required to have an order handling and 
execution arrangement with an unaffiliated broker-dealer. Because the

[[Page 5476]]

introducing broker would be permitted to rely on the executing broker 
rather than having policies and procedures that address independently 
many of the operative provisions of proposed Regulation Best Execution 
(including the additional obligations for conflicts of interest with 
retail customers), the introducing broker should not be permitted to be 
subject to a conflict of interest by selecting an affiliated executing 
broker. Such conflict of interest could impede the introducing broker's 
efforts to achieve best execution by providing the introducing broker 
an incentive to act in manner that benefits its own or its affiliate's 
interests. Third, the executing broker that has been selected by the 
introducing broker would be required to agree to handle all of the 
introducing broker's customer orders on an agency basis. If an 
executing broker could trade with the introducing broker's customers in 
a principal capacity, the introducing broker would effectively be 
making a determination concerning how its customer order should be 
executed, and the introducing broker should be subject to the full 
requirements of proposed Regulation Best Execution.
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    \231\ The broker-dealer that has agreed to handle all of the 
introducing broker's customer orders on an agency basis would be 
subject to proposed Regulation Best Execution, including proposed 
Rules 1101(a)-(c).
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    There are two principal trading scenarios that, under proposed Rule 
1101(d)(2), would be considered to be orders handled on an agency basis 
solely for the purposes of proposed Rule 1101(d)(2): fractional share 
trading in NMS stocks and riskless principal trading in corporate and 
municipal bonds and government securities. The Commission understands 
that many broker-dealers permit their customers to submit orders for 
fractional shares of a stock. These orders are often the result of a 
retail customer submitting an order for a security for a certain dollar 
amount, rather than for a specific number of shares. In order for an 
executing broker to fill the fractional share orders of an introducing 
broker's customer buy orders, for example, the executing broker may buy 
a whole share into its inventory and allocate a portion of that share 
to fill the customer's fractional share order. This scenario involves a 
principal trade between the executing broker and the customer that is 
necessary to fill the customer's fractional share order. The Commission 
preliminarily believes that an executing broker filling the fractional 
share components of an introducing broker's customer orders in this 
manner should not disqualify the initial broker-dealer from meeting 
prong (2) of the definition of an introducing broker, because the 
executing broker is filling the fractional share components on a 
principal basis solely for the purpose of completing transactions that 
otherwise would be executed on an agency basis. Therefore, in this 
context, the executing broker filling a customer's fractional share 
order would be considered to be acting on an agency basis.
    In the corporate and municipal bond markets and government 
securities markets, the Commission understands that executing brokers 
most often execute an introducing broker's customer orders on a 
riskless principal basis.\232\ In these transactions, the executing 
broker does not fill a customer order out of its own inventory, but 
rather finds a counterparty for the customer order prior to executing 
the customer order.\233\ The bond simply flows through the executing 
broker's account for transaction processing before ultimately being 
transferred to the appropriate customer. For purposes of proposed Rule 
1101(d)(2), riskless principal would be defined as proposed under Rule 
1101(b)(4)(ii). In particular, a transaction would be riskless 
principal if, after having received an order to buy from the 
introducing broker on behalf of its customer, the executing broker 
purchased the security from another person to offset a contemporaneous 
sale to such introducing broker on behalf of a customer or, after 
having received an order to sell, the executing broker sold the 
security to another person to offset a contemporaneous purchase from 
such introducing broker on behalf of its customer.\234\ The Commission 
preliminarily believes that this riskless principal transaction 
scenario in the corporate and municipal bond markets and government 
securities markets should not disqualify the initial broker-dealer from 
meeting the definition of an introducing broker in proposed Rule 
1101(d), as the riskless principal trading in this context is analogous 
to the executing broker trading on an agency basis.
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    \232\ The MSRB best execution rule recognizes that introducing 
brokers may have a relationship with clearing firms that handle and 
execute customer orders on a riskless principal basis. See, e.g., 
MSRB Rule G-18.08(b) (``A dealer that routes its customers' 
transactions to another dealer that has agreed to handle those 
transactions as agent or riskless principal for the customer (e.g., 
a clearing firm or other executing dealer) may rely on that other 
dealer's periodic reviews as long as the results and rationale of 
the review are fully disclosed to the dealer and the dealer 
periodically reviews how the other dealer's review is conducted and 
the results of the review.'').
    \233\ As the Commission has stated, ``[t]rading on a riskless 
principal basis is similar, conceptually, to a municipal bond dealer 
trading on an agency basis. In these transactions, the municipal 
bond dealer is not putting its capital at risk. For example, when it 
receives a customer order to buy, the [dealer] will offset the sale 
to the customer by contemporaneously purchasing the security sold to 
the customer.'' See U.S. Securities and Exchange Commission, Report 
on the Municipal Securities Market (2012), available at https://www.sec.gov/news/studies/2012/munireport073112.pdf. See also 17 CFR 
240.3a5-1(b) (defining the term ``riskless principal transaction'' 
for purposes of a bank's exemption from the definition of dealer).
    \234\ This riskless principal trading scenario would be limited 
to these types of transactions in the corporate and municipal bond 
markets and government securities markets and is consistent with the 
concept in MSRB Rule G-18.08(b) and with the Commission's defined 
term of riskless principal in Exchange Act Rule 3a5-1, which exempts 
banks from the definition of ``dealer'' under the Exchange Act when 
acting in a riskless principal capacity. See 17 CFR 240.3a5-1 
(defining riskless principal as a transaction in which, after having 
received an order to buy from a customer, the bank purchased the 
security from another person to offset a contemporaneous sale to 
such customer or, after having received an order to sell from a 
customer, the bank sold the security to another person to offset a 
contemporaneous purchase from such customer). Furthermore, the 
Commission believes that this definition of a riskless principal 
trade is a commonly used and understood definition of the term. But 
see 17 CFR 240.10b-18 (defining a riskless principal transaction in 
the context of a safe harbor for issuers from liability under the 
Exchange Act fraud provisions as a transaction in which a broker or 
dealer after having received an order from an issuer to buy its 
security, buys the security as principal in the market at the same 
price to satisfy the issuer's buy order, where the issuer's buy 
order must be effected at the same price per share at which the 
broker or dealer bought the shares to satisfy the issuer's buy 
order, exclusive of any explicitly disclosed markup or markdown, 
commission equivalent, or other fee).
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    The third proposed condition in the definition of introducing 
broker (in proposed paragraph (d)(3)) is that the introducing broker 
may not accept any monetary payment, service, property, or other 
benefit that results in remuneration, compensation, or consideration 
from the executing broker in return for the routing of the introducing 
broker's customer orders to the executing broker.\235\ Similar to the 
second proposed condition concerning the use of unaffiliated executing 
brokers, the Commission preliminarily believes that this proposed 
condition is appropriate because the introducing broker, which would be 
exempt from many of the operative provisions of proposed Regulation 
Best Execution, should not be subject to a conflict of interest that 
could influence its selection of a broker-dealer that will handle and 
execute its customers' orders.
---------------------------------------------------------------------------

    \235\ This proposed condition is based on the definition of 
payment for order flow in Exchange Act Rule 10b-10(d)(8), 17 CFR 
240.10b-10(d)(8). See supra note 43 (stating the definition of 
payment for order flow under Rule 10b-10(d)(8)).
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2. Review of Executing Broker's Execution Quality
    Proposed Rule 1101(d) would provide that an introducing broker that 
routes customer orders to an executing broker

[[Page 5477]]

does not need to separately comply with proposed Rules 1101(a), (b), 
and (c) so long as the introducing broker establishes, maintains, and 
enforces policies and procedures that require the introducing broker to 
regularly review the execution quality obtained from such executing 
broker, compare it with the execution quality it might have obtained 
from other executing brokers, and revise its order handling practices, 
accordingly. The introducing broker would also be required to document 
the results of this review.
    Because proposed Rule 1101(d) would require the introducing broker 
to establish, maintain, and enforce policies and procedures that 
provide for regular reviews of the execution quality obtained from its 
executing broker, as part of its agreement with the executing broker, 
an introducing broker may wish to consider requiring the executing 
broker to fully disclose its execution quality reviews of the 
introducing broker's customer orders to the introducing broker, in lieu 
of conducting its own independent analysis of the execution quality 
ultimately received from the executing broker.\236\ This aspect of 
proposed Rule 1101(d) would impose a direct obligation on introducing 
brokers to regularly review the execution quality obtained from their 
executing brokers, in addition to what is required under current FINRA 
and MSRB rules.\237\
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    \236\ The executing broker's review of execution quality that 
the introducing broker relies on would be required to be an 
execution quality review specific to the introducing broker's 
customer orders. The Commission preliminarily believes that it would 
not be appropriate for the introducing broker to rely on the 
executing broker's execution quality review if that review involved 
the executing broker's aggregate executions, including those of 
other introducing brokers' customers. As a result, proposed Rule 
1101(d) would require the introducing broker to evaluate the 
execution quality its customers received from the executing broker.
    \237\ See FINRA Rule 5310.09(c); MSRB Rule G-18.08(b) (providing 
that an introducing broker can ``rely on'' its executing broker's 
execution quality reviews as long as the results and rationale of 
the review are fully disclosed to the introducing broker and the 
introducing broker periodically reviews how the review is conducted 
and the results of the review). Under these rules, broker-dealers 
are permitted to rely on the execution quality reviews of their 
executing brokers and are required only to periodically review how 
the review is conducted and the results of the review. These broker-
dealers are not required to compare the execution quality they are 
receiving to the execution quality that might have been received 
from another executing broker.
---------------------------------------------------------------------------

    In addition, because proposed Rule 1101(d) would require the 
introducing broker's policies and procedures to provide for comparisons 
of its executing broker's execution quality with the execution quality 
it might have obtained from other executing brokers, the introducing 
broker would need to obtain execution quality information concerning 
other executing brokers that could handle and execute the introducing 
broker's customer orders.\238\ While the information concerning the 
execution quality that might be obtained from other executing brokers 
would not include information concerning the execution of the 
introducing broker's customer orders, this information would 
nevertheless better inform the introducing broker's decisions 
concerning the selection of an executing broker. This aspect of 
proposed Rule 1101(d) would impose a direct obligation on introducing 
brokers to conduct comparisons of execution quality, in addition to 
what is required under current FINRA and MSRB rules.\239\ While the 
broker-dealer would be afforded discretion in how it evaluates the 
execution quality that could be provided by other executing brokers, 
the Commission believes that introducing brokers could consider the 
execution quality and order routing disclosures of these executing 
brokers along with the information that these executing brokers might 
provide to the introducing broker directly in connection with this 
obligation.
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    \238\ The Commission preliminarily believes that other executing 
brokers would have an incentive to provide the introducing broker 
with accurate and comparable execution quality information that the 
introducing broker could use to evaluate its existing arrangement 
due to their financial interest in potentially providing the 
introducing broker with order handling and execution services.
    \239\ See supra note 236.
---------------------------------------------------------------------------

    Proposed Rule 1101(d) would also require an introducing broker's 
policies and procedures to address how it would revise its order 
handling practices, if its execution quality comparison shows that a 
change is warranted. This aspect of proposed Rule 1101(d) would 
establish an obligation for an introducing broker to revise its 
policies and procedures following an execution quality comparison, 
which is not explicitly required under the current FINRA and MSRB 
rules.\240\ An introducing broker may consider it appropriate to change 
its routing practices to the extent a material difference exists 
between the execution quality provided by its existing executing broker 
and the execution quality that might have been obtained from other 
executing brokers. Alternatively, the Commission preliminarily believes 
that an introducing broker could discuss the results of its review with 
its executing broker and whether it is appropriate for the executing 
broker to modify its order handling and execution practices in order to 
provide better execution quality for the introducing broker's 
customers.\241\ If the executing broker were to either provide a 
reasonable explanation for the execution quality disparity identified 
by the introducing broker or agree to modify its order handling and 
execution practices in order to provide better execution quality, it 
could be appropriate for the introducing broker to continue to retain 
the services of its executing broker. Should the introducing broker's 
regular review demonstrate persistent execution quality issues that are 
not justifiable by the executing broker, the introducing broker should 
consider retaining the services of another executing broker. As a 
result, the Commission preliminarily believes that this regular review 
process would promote competition among executing brokers and help 
ensure that customer orders are executed consistently with the proposed 
best execution standard.
---------------------------------------------------------------------------

    \240\ See FINRA Rule 5310.09(c) (``A member that routes its 
order flow to another member that has agreed to handle that order 
flow as agent for the customer (e.g., a clearing firm or other 
executing broker-dealer) can rely on that member's regular and 
rigorous review as long as the statistical results and rationale of 
the review are fully disclosed to the member and the member 
periodically reviews how the review is conducted, as well as the 
results of the review.''). See also MSRB Rule G-18.08(b) (``A dealer 
that routes its customers' transactions to another dealer that has 
agreed to handle those transactions as agent or riskless principal 
for the customer (e.g., a clearing firm or other executing dealer) 
may rely on that other dealer's periodic reviews as long as the 
results and rationale of the review are fully disclosed to the 
dealer and the dealer periodically reviews how the other dealer's 
review is conducted and the results of the review.''). These 
provisions do not obligate the broker-dealers that rely on the 
regular and rigorous review of other broker-dealer under FINRA Rule 
5310.09(c) and MSRB Rule G-18.08(b) to modify the order handling 
arrangements if execution quality analysis merits modification.
    \241\ As part of this process, the introducing broker and 
executing broker could assess why execution quality may be different 
as between the executing broker and other executing brokers, and the 
reason for these differences may inform the introducing broker's 
decision as to whether to retain the executing broker or change 
executing brokers. As discussed above with respect to proposed Rule 
1101(c), an executing broker would be required to revise its best 
execution policies and procedures, including its order handling and 
routing practices, if warranted by its regular review of the 
execution quality of the introducing broker's customer orders.
---------------------------------------------------------------------------

    Moreover, proposed Rule 1101(d) would require an introducing broker 
to document the results of its execution quality review,\242\ which 
would assist the introducing broker and regulators by helping to ensure 
that the introducing broker maintains and retains a robust record of 
the execution quality its customers receive from its executing

[[Page 5478]]

broker over time. This documentation should enable the introducing 
broker to better evaluate the effectiveness of its executing broker on 
an ongoing basis. This documentation would also help ensure that 
regulators have access to information to effectively oversee the 
introducing broker's efforts to satisfy its obligations under proposed 
Rule 1101(d).
---------------------------------------------------------------------------

    \242\ See proposed amendments to Rule 17a-4; infra section IV.G 
(describing the recordkeeping obligations applicable to any 
documentation made pursuant to proposed Regulation Best Execution).
---------------------------------------------------------------------------

Request for Comment
    The Commission requests comment on proposed Rule 1101(d) relating 
to the proposed definitions of introducing broker and executing broker, 
and the proposed exemptions for introducing brokers, and in particular:
    109. Are the proposed definitions of introducing broker (including 
the three proposed conditions to qualify as an introducing broker) and 
executing broker appropriate? If not, please explain whether and how 
the definitions should be more broadly or narrowly drawn, including 
whether certain market participants should be included or excluded from 
the definitions.
    110. Do commenters believe the use of the term ``introducing 
broker'' in proposed Regulation Best Execution is appropriate? Should 
the Commission use an alternative term to describe the types of 
entities contemplated by proposed Rule 1101(d)? If so, what alternative 
term would be appropriate?
    111. Does an introducing broker typically exercise any discretion 
with respect to how its customer orders are handled and executed by its 
executing broker, beyond the selection of the executing broker? If so, 
should the definition of introducing broker be modified in any manner 
to account for this discretion by the introducing broker? Please 
describe.
    112. Does an introducing broker typically have multiple executing 
brokers or does it typically have an arrangement with only one 
executing broker to handle and execute all of its customer orders?
    113. Are the proposed conditions concerning the arrangement between 
the introducing broker and its executing broker appropriate? Please 
explain.
    114. Is it appropriate to require the executing broker to handle 
and execute all of the introducing broker's customer orders on an 
agency basis in order for the introducing broker to meet the definition 
of introducing broker under proposed Rule 1101(d)? Please explain.
    115. Do executing brokers, which can include many clearing firms 
that provide these types of services to other broker-dealers, typically 
execute transactions to fill an introducing broker's customer orders in 
a riskless principal capacity? Do these executing brokers often use 
inventory to fill the introducing broker's customer orders?
    116. Would the proposed condition that an executing broker execute 
customer orders on an agency basis harm liquidity for the introducing 
broker's customer orders for any asset class or classes? If so, please 
explain. For example, is the principal trading desk of an executing 
broker (e.g., clearing firm) in the corporate or municipal bond markets 
and government securities markets an important source of potential 
liquidity for the customers of an introducing broker?
    117. Does the proposed introducing broker definition and the 
proposed approach concerning riskless principal trading appropriately 
capture the manner in which introducing brokers and executing brokers 
do business in the corporate and municipal bond markets and government 
securities markets? Please explain.
    118. Should riskless principal transactions by an executing broker 
disqualify the introducing broker from meeting the definition of 
introducing broker under proposed Rule 1101(d)? Please explain.
    119. Is the description of a riskless principal trade in section 
IV.E.1 above appropriate? Why or why not?
    120. In contrast to the discussion of riskless principal trades in 
section IV.E.1 above, would it be more appropriate to require the two 
legs of a riskless principal trade to be executed at the same price, 
exclusive of any explicitly disclosed markup or markdown, commission 
equivalent, or other fee? For example, should a riskless principal 
trade for purposes of proposed Rule 1101(d)(2) be defined to mean: a 
transaction in which the executing broker, after having received an 
order from the introducing broker on behalf of its customer to buy a 
security, buys the security from another person as principal to offset 
a contemporaneous sale to such introducing broker on behalf of a 
customer at the same price, or after having received an order to sell, 
the executing broker sold the security to another person to offset a 
contemporaneous purchase from the introducing broker on behalf of its 
customer at the same price? Please explain. Would a potential benefit 
of this alternative definition of riskless principal transaction be 
that the bond transaction between the introducing broker and its 
customer would reflect the entire markup or markdown on the customer's 
trade, which would be disclosed to the customer pursuant to existing 
FINRA and MSRB confirmation disclosure rules?
    121. Do commenters agree that principal trades by an executing 
broker to fill fractional share orders in NMS stocks and riskless 
principal trades by an executing broker in fixed income securities 
should be order handling on an agency basis for purposes of proposed 
Rule 1101(d)(2)? Why or why not? Are there additional types of 
principal transactions that should also be considered order handling on 
an agency basis for purposes of proposed Rule 1101(d)(2)? If so, please 
describe.
    122. Do commenters agree with the proposed requirement that there 
be no affiliation between an introducing broker and its executing 
broker in order for the introducing broker to meet the definition of 
introducing broker under proposed Rule 1101(d)? Why or why not?
    123. What is the typical relationship between an introducing broker 
and its executing broker for handling and executing customer orders in 
different asset classes?
    124. The proposal would prohibit a broker-dealer from receiving any 
payment for order flow from its executing broker in order to qualify as 
an introducing broker under proposed Rule 1101(d). Currently, to what 
extent do introducing brokers accept payment for order flow for their 
customer orders from an executing broker? What are the common payment 
for order flow arrangements between introducing brokers and their 
executing brokers?
    125. Do commenters agree with the proposed requirement that there 
be no payment for order flow between an introducing broker and its 
executing broker in order for the introducing broker to meet the 
definition of introducing broker under proposed Rule 1101(d)? Please 
explain. What are the implications for introducing brokers resulting 
from the requirement that they not accept payment for order flow from 
their executing brokers in order to qualify as introducing brokers 
under proposed Rule 1101(d)?
    126. Should an executing broker be prohibited from accepting 
payment for order flow from other broker-dealers that the executing 
broker uses to execute the introducing broker's customer orders? Why or 
why not?
    127. Do commenters agree that the proposed exemptions for 
introducing brokers from proposed Rule 1101(a), (b), and (c) are 
appropriate? Why or why not?
    128. Do commenters believe that the approaches taken by FINRA and 
the MSRB with respect to the definition of introducing broker are 
preferable to the

[[Page 5479]]

Commission's proposal? \243\ Please explain. Would an approach that is 
more restrictive than the FINRA and MSRB approach but less restrictive 
than the Commission's proposal be preferable? If so, please explain.
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    \243\ See supra notes 228-230 and accompanying text.
---------------------------------------------------------------------------

    The Commission also seeks comment on the proposed requirement that, 
to avail itself of the exemptions under proposed Rule 1101(d), an 
introducing broker must establish, maintain, and enforce policies and 
procedures that require it to regularly review the execution quality 
obtained from its executing broker, compare such execution quality with 
the execution quality it might have obtained from other executing 
brokers, and revise its routing practices accordingly. In particular:
    129. How do introducing brokers currently evaluate the execution 
quality of their executing brokers? How often is this evaluation 
typically performed?
    130. Would introducing brokers be able to obtain execution quality 
information concerning other executing brokers? If so, how? Would 
executing brokers have an incentive to share execution quality 
information with introducing brokers for which they do not handle 
orders or handle few orders?
    131. Would an introducing broker be able to perform a comparison of 
execution quality received with execution quality that it might have 
obtained from other executing brokers? Please explain any challenges in 
making such a comparison and whether any challenges depend on the asset 
class or classes involved. Please describe any distinctions that should 
be drawn among executing brokers handling and executing orders in 
various asset classes.
    132. Should the Commission require that an introducing broker 
compare the execution quality received with the execution quality it 
might have obtained from other executing brokers only to the extent 
that such execution quality information is reasonably accessible to the 
introducing broker? Please explain.
    133. Would introducing brokers have the capacity and resources to 
independently compare the quality of executions received from their 
executing brokers to the quality of executions that they might have 
received from other executing brokers? Are introducing brokers likely 
to rely on third parties to facilitate this comparison? Please explain.
    134. How frequently should an introducing broker be required to 
perform a comparative analysis of execution quality as proposed in Rule 
1101(d)? For example, should it be required quarterly, similar to what 
FINRA requires under FINRA Rule 5310.09? Alternatively, should the 
review be required with a different frequency, such as on a monthly, 
semiannual, or annual basis, instead of quarterly? Please explain.
    135. Should introducing brokers be required to evaluate the 
execution quality of a minimum number of alternative executing brokers 
when they compare the execution quality received from their own 
executing brokers? If so, how many and why?
    136. Would the proposed documentation requirement improve the 
utility of an introducing broker's execution quality comparison? Why or 
why not? Should the Commission require additional documentation to 
supplement the documentation of the introducing broker's review? If so, 
please explain.
    137. Rather than conducting the execution quality review under 
proposed Rule 1101(d), should introducing brokers be subject to the 
regular review of execution quality requirement under proposed Rule 
1101(c)? Are there other factors that would make one more appropriate 
for introducing brokers than the other? Please explain.
    138. Do commenters believe there are any concerns with the proposed 
requirement that an introducing broker's policies and procedures 
require it to revise its order handling practices to the extent 
justified by its execution quality reviews? If so, please explain. 
Should the Commission provide more specificity concerning when order 
handling practices would be required to be revised? For example, should 
the Commission specify that order handling practices be revised if 
there are material differences between the execution quality received 
from the executing broker and the execution quality that could have 
been obtained from another executing broker?
    139. How do introducing brokers currently address execution quality 
concerns relating to their executing brokers' order handling? Please 
describe.
    140. Do introducing brokers have a number of executing brokers to 
choose from when determining the firm they will use to handle and 
execute their customer orders?
    141. Is the approach in FINRA Rule 5310.09(c) and MSRB Rule G-
18.08(b) preferable to the Commission's proposal? Why or why not? Would 
some combination of the FINRA and MSRB approaches and the Commission's 
proposal be preferable to either? Please explain.
    142. Do commenters believe that the Commission should provide 
staggered compliance dates for proposed Rule 1101(d) for broker-dealers 
of different sizes, if the Commission adopts proposed Regulation Best 
Execution? For example, should the Commission provide longer compliance 
dates for smaller broker-dealers? If so, should the Commission define a 
smaller broker-dealer as a broker-dealer that qualifies as a ``small 
entity'' under the Regulatory Flexibility Act pursuant to 17 CFR 240.0-
10(c) for this purpose? \244\ Or should the Commission define a smaller 
broker-dealer in a different way? Please explain.
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    \244\ See supra note 151 and accompanying text (describing the 
broker-dealers that qualify as small entities under the Regulatory 
Flexibility Act).
---------------------------------------------------------------------------

F. Proposed Rule 1102--Annual Report

    Proposed Rule 1102 would require a broker-dealer that effects any 
transaction for or with a customer or a customer of another broker-
dealer to, no less frequently than annually, review and assess the 
design and overall effectiveness of its best execution policies and 
procedures, including its order handling practices. Such review and 
assessment would be required to be conducted in accordance with written 
procedures and would be required to be documented.\245\ The broker-
dealer also would be required to prepare a written report detailing the 
results of such review and assessment, including a description of all 
deficiencies found and any plan to address such deficiencies. The 
report would be required to be presented to the board of directors (or 
equivalent governing body) of the broker-dealer. The proposed annual 
review requirement is designed to require broker-dealers to evaluate 
whether their best execution policies and procedures continue to work 
as designed and whether changes are needed to ensure their continued 
effectiveness.
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    \245\ The Commission believes that broker-dealers currently have 
written compliance procedures reasonably designed to review their 
business activity, which a broker-dealer could update to document 
the method in which the broker-dealer plans to conduct its review 
pursuant to proposed Rule 1102.
---------------------------------------------------------------------------

    In assessing the overall effectiveness of its best execution 
policies and procedures, a broker-dealer should consider its policies 
and procedures holistically, and may utilize its execution quality 
reviews and any documentation with respect to conflicted transactions 
prepared during

[[Page 5480]]

the course of the review period.\246\ Although proposed Rule 1101(c), 
as discussed in section IV.D above, would require a broker-dealer to 
implement an at least quarterly review of the execution quality of its 
customer transactions, the annual review requirement in proposed Rule 
1102 would be a broader, more holistic review of the broker-dealer's 
policies and procedures not focused solely on execution quality. As 
part of its annual review, a broker-dealer may review the findings of 
its execution quality reviews in conjunction with its overall review of 
its policies and procedures, to the extent it would assist the broker-
dealer in identifying any inadequacies and supporting any revisions to 
its best execution policies and procedures, including its order 
handling practices, as appropriate.\247\ Ongoing changes in order 
handling technology and differing broker-dealer trading models and 
practices may present a need for a broker-dealer to reconsider its best 
execution policies and procedures in a way that is not identified 
during the course of a broker-dealer's regular execution quality 
reviews conducted pursuant to proposed Rule 1101(c). For example, the 
proposed annual review process may encourage the broker-dealer to 
consider investments in new technologies to improve its overall best 
execution process, despite the fact that the broker-dealer has not 
identified any issues with its existing execution quality. Accordingly, 
the Commission believes that the proposed annual review requirement, 
including the associated written report that would be presented to the 
broker-dealer's board of directors or equivalent governing body, would 
create a robust internal compliance process under the oversight of the 
highest level of a broker-dealer's internal governance to help ensure 
the broker-dealer maintains robust best execution policies and 
procedures and complies with proposed Regulation Best Execution. The 
written report prepared pursuant to proposed Rule 1102 would also help 
regulators better understand the broker-dealer's compliance with 
proposed Regulation Best Execution.
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    \246\ While a broker-dealer that qualifies as an introducing 
broker under proposed Rule 1101(d) would need to conduct a review 
and prepare a written report pursuant to proposed Rule 1102, an 
introducing broker's review should appropriately reflect its 
obligations under proposed Rule 1101(d), rather than the aspects of 
proposed Rules 1101(a), (b), and (c) that would be considered as 
part of the executing broker's annual review.
    \247\ By utilizing its regular reviews of execution quality as 
part of its annual review, a broker-dealer may avoid any duplication 
of efforts to the extent it needs to conduct any execution quality 
analysis in order to assess the overall effectiveness of its best 
execution policies and procedures as required by proposed Rule 1102.
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    FINRA's best execution rule does not require a periodic review of a 
broker-dealer's best execution policies and procedures.\248\ However, 
FINRA Rule 3130(c) requires a broker-dealer to have a report that 
describes its processes to: establish, maintain, and review its 
policies and procedures reasonably designed to achieve compliance with 
applicable FINRA rules, MSRB rules, and Federal securities laws and 
regulations; modify such policies and procedures as changes and events 
dictate; and test the effectiveness of such policies and procedures on 
a periodic basis, the timing and extent of which is reasonably designed 
to ensure continuing compliance with FINRA rules, MSRB rules, and 
Federal securities laws and regulations. FINRA Rule 3130(c) further 
requires the broker-dealer's chief executive officer(s) (or equivalent 
officer(s)) to certify to the existence of such processes, and to 
certify that the report of such processes has been submitted to the 
broker-dealer's board of directors and audit committee (or equivalent 
bodies). The Commission understands that, currently, broker-dealers 
periodically review their policies and procedures (including those 
related to best execution), although the frequency of review may vary. 
However, because the Commission is proposing its own best execution 
rule, proposed Rule 1102 would help ensure the effectiveness of the 
broker-dealer's best execution policies and procedures that it adopts 
pursuant to the proposed rules.
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    \248\ FINRA Rule 5310.
---------------------------------------------------------------------------

    MSRB Rule G-18.08(a) requires a broker-dealer to, at a minimum, 
conduct annual reviews of its policies and procedures for determining 
the best available market for the executions of its customers' 
transactions. In conducting these reviews, a dealer must assess whether 
its policies and procedures are reasonably designed to achieve best 
execution, taking into account the quality of the executions the dealer 
is obtaining under its current policies and procedures, changes in 
market structure, new entrants, the availability of additional pre-
trade and post-trade data, and the availability of new technologies, 
and to make promptly any necessary modifications to such policies and 
procedures as may be appropriate in light of such reviews. As described 
above in connection with the FINRA rules, because the Commission is 
proposing its own best execution rule, proposed Rule 1102 would help 
ensure the effectiveness of the broker-dealer's best execution policies 
and procedures that it adopts pursuant to the proposed rules. Moreover, 
as compared to MSRB Rule G-18.08(a), proposed Rule 1102 would include a 
specific requirement that a broker-dealer review its order handling 
practices, require that a report be maintained of this annual review, 
and require that the broker-dealer provide the annual report to its 
governing body.
Request for Comment
    The Commission requests comment on all aspects of proposed Rule 
1102, and in particular:
    143. Should a broker-dealer be required to have written procedures 
for annual (or more frequent) reviews of the overall effectiveness of 
its best execution policies and procedures, including its order 
handling practices, and be required to document such review, as 
proposed? Why or why not?
    144. Would the proposed requirement for written procedures for 
annual (or more frequent) reviews help to ensure the overall 
effectiveness of a broker-dealer's best execution policies and 
procedures? Why or why not?
    145. Should a broker-dealer be required to prepare a written report 
detailing the results of its review, including any plan to address 
deficiencies, as proposed? Why or why not? Should the Commission 
require specific information to be included in the written report? If 
so, what specific information should be required?
    146. Should the written report of the review be presented to the 
broker-dealer's board of directors (or equivalent governing body), as 
proposed? Why or why not?
    147. Would the proposed requirement for annual (or more frequent) 
reviews and for presenting written reports of the reviews to the board 
of directors help to ensure a broker-dealer's compliance with proposed 
Regulation Best Execution? Why or why not?
    148. Should a broker-dealer's board of directors (or governing 
body) also be required to approve the best execution policies and 
procedures that would initially be established under proposed 
Regulation Best Execution? Please explain.
    149. Do commenters agree with the Commission's understanding that, 
currently, broker-dealers periodically review their best execution 
policies and procedures? Please describe the rigor of any such reviews, 
whether broker-dealers document such reviews, and whether broker-
dealers present the results of such reviews to their boards of 
directors (or equivalent governing bodies).

[[Page 5481]]

    150. Do commenters agree with the Commission's understanding that 
such reviews vary in frequency among broker-dealers? Please describe 
the frequency of such reviews. Does the frequency of review vary 
depending on whether the broker-dealer is subject to the FINRA rules or 
the MSRB rules? Please explain.
    151. Should management, a committee, or an expert be designated to 
conduct the annual review and prepare the report? Should specific 
experience or expertise be required to conduct the annual review and 
prepare the report? Would additional specificity in the rule promote 
accountability over the annual review and report and ensure that 
adequate resources are devoted to such review and report? Why or why 
not?
    152. Does the annual review raise any particular challenges for 
smaller broker-dealers? If so, what could the Commission do to mitigate 
those challenges?
    153. Are there any conflicts of interest if the same personnel that 
designs or implements the policies and procedures also conduct the 
annual reviews? If so, how can those conflicts be mitigated or 
eliminated? Should broker-dealers be required to have their policies 
and procedures periodically audited by an unaffiliated third party to 
assess their design and effectiveness? Why or why not? If so, should 
the rule define the term ``affiliate'' to specify the entities that 
would be eligible to perform such an audit and should the Commission 
use the definition of ``affiliate'' in proposed Rule 1101(b)(4)(iii) 
for this purpose? Please explain. What types of unaffiliated third 
parties might have the necessary specific experience and expertise to 
review a broker-dealer's best execution policies and procedures? For 
example, should an unaffiliated consulting firm, accounting firm, or 
law firm be permitted to provide this service, if required? Should the 
rule prescribe the types of unaffiliated third parties that would have 
the requisite experience and expertise? Please explain.
    154. Do commenters believe that the Commission should provide 
staggered compliance dates for proposed Rule 1102 for broker-dealers of 
different sizes, if the Commission adopts proposed Regulation Best 
Execution? For example, should the Commission provide longer compliance 
dates for smaller broker-dealers? If so, should the Commission define a 
smaller broker-dealer as a broker-dealer that qualifies as a ``small 
entity'' under the Regulatory Flexibility Act pursuant to 17 CFR 240.0-
10(c) for this purpose? \249\ Or should the Commission define a smaller 
broker-dealer in a different way? Please explain.
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    \249\ See supra note 151 and accompanying text (describing the 
broker-dealers that qualify as small entities under the Regulatory 
Flexibility Act).
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G. Recordkeeping Requirements Under Rule 17a-4

    In connection with proposed Regulation Best Execution, the 
Commission is proposing new recordkeeping requirements for broker-
dealers. Section 17(a)(1) of the Exchange Act requires registered 
broker-dealers to keep for prescribed periods such records as the 
Commission prescribes as necessary or appropriate in the public 
interest, for the protection of investors, or otherwise in furtherance 
of the purposes of the Exchange Act.\250\ Rule 17a-4 under the Exchange 
Act specifies how long broker-dealers must preserve required records 
and other documents.\251\
---------------------------------------------------------------------------

    \250\ 15 U.S.C. 78q(a)(1).
    \251\ 17 CFR 240.17a-4.
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    Proposed Regulation Best Execution would require broker-dealers to 
make the following records:
     Policies and procedures under proposed Rules 1101(a), (b), 
and (d) and Rule 1102;
     Documentation of compliance with the best execution 
standard for conflicted transactions under proposed Rule 1101(b);
     Documentation of payment for order flow arrangements under 
proposed Rule 1101(b);
     Documentation of the results of the regular review of 
execution quality under proposed Rule 1101(c);
     Documentation of the results of the regular review of 
execution quality by introducing brokers under proposed Rule 1101(d);
     Documentation of the annual review under proposed Rule 
1102; and
     Annual report under proposed Rule 1102.
    Current Rule 17a-4(e)(7) under the Exchange Act would apply to the 
policies and procedures required by proposed Regulation Best 
Execution.\252\ The Commission proposes to amend Rule 17a-4 to add new 
paragraph (b)(17) to require broker-dealers to preserve all other 
records made pursuant to proposed Rules 1101 and 1102 for a period of 
not less than three years, the first two years in a readily accessible 
place.
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    \252\ Rule 17a-4(e)(7) requires broker-dealers to maintain and 
preserve in an easily accessible place compliance, supervisory, and 
procedures manuals (and any updates, modifications, and revisions 
thereto) describing the policies and practices of the broker-dealer 
with respect to compliance with applicable laws and rules, and 
supervision of the activities of associated persons until three 
years after the termination of the use of the manual. 17 CFR 
240.17a-4(e)(7).
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    The Commission preliminarily believes that the preservation of 
records made pursuant to proposed Regulation Best Execution for this 
time period would assist broker-dealers in ensuring that they continue 
to maintain robust best execution practices for an appropriate amount 
of time. In addition, the preservation and availability of records that 
support and document broker-dealers' compliance with proposed 
Regulation Best Execution would also assist the Commission and SROs in 
assessing the broker-dealer's efforts to comply with proposed 
Regulation Best Execution.
Request for Comment
    The Commission requests comment on the proposed record preservation 
requirements related to proposed Regulation Best Execution:
    155. Should all records made pursuant to proposed Regulation Best 
Execution be required to be preserved? Please explain.
    156. Do commenters agree that the policies and procedures required 
by proposed Regulation Best Execution should be subject to Rule 17a-
4(e)(7) and preserved until three years after the termination of their 
use? Please explain.
    157. Do commenters agree that all other records required by 
proposed Regulation Best Execution should be subject to Rule 17a-4(b) 
and preserved for a period of not less than three years, the first two 
years in a readily accessible place? Please explain.
    158. Should the Commission impose additional record preservation 
requirements related to proposed Regulation Best Execution? Why or why 
not? If the Commission were to impose additional requirements, what 
specific records should broker-dealers be required to preserve? Please 
explain.

V. Economic Analysis

A. Introduction

    The Commission is mindful of the economic effects that may result 
from proposed Regulation Best Execution, including the benefits, costs, 
and the effects on efficiency, competition, and capital formation.\253\ 
This section

[[Page 5482]]

analyzes the expected economic effects of proposed Regulation Best 
Execution relative to the current baseline, which consists of the 
current market and regulatory framework in existence today.
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    \253\ Exchange Act Section 3(f) requires the Commission, when it 
is engaged in rulemaking pursuant to the Exchange Act, and is 
required to consider or determine whether an action is necessary or 
appropriate in the public interest, to consider, in addition to the 
protection of investors, whether the action will promote efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f). In 
addition, Exchange Act Section 23(a)(2) requires the Commission, 
when making rules pursuant to the Exchange Act, to consider among 
other matters, the impact that any such rule would have on 
competition, and not to adopt any rule that would impose a burden on 
competition that is not necessary or appropriate in furtherance of 
the purposes of the Exchange Act. See 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

    A broker-dealer's duty of best execution predates the Federal 
securities laws and, as noted previously, has ``its roots in the common 
law agency obligations of undivided loyalty and reasonable care that an 
agent owes to his principal.'' \254\ In general terms, the Commission 
position is, and has been, that ``the duty of best execution requires 
broker-dealers to execute customers' trades at the most favorable terms 
reasonably available under the circumstances, i.e., at the best 
reasonably available price.''\255\ FINRA Rule 5310(a) and MSRB Rule G-
18(a) codify essentially the same requirement that members must ``use 
reasonable diligence to ascertain the best market for the subject 
security and buy or sell [there] so that the resultant price to the 
customer is as favorable as possible under prevailing market 
conditions.''
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    \254\ Newton v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 
135 F.3d 266, 270, n. 30 (3rd Cir. 1998). As the Commission 
explained when adopting rules governing payment for order flow 
almost three decades ago, ``[a] broker-dealer's duty to seek to 
obtain best execution of customer orders derives, in part, from the 
common law agency duty of loyalty, which obligates an agent to act 
exclusively in the principal's best interest. Restatement (Second) 
of Agency section 387 (1958). Thus, when an agent acts on behalf of 
a customer in a transaction, the agent is under a duty to exercise 
reasonable care to obtain the most advantageous terms for the 
customer. Id. at section 424.'' Payment For Order Flow Release, 
supra note 33, at n. 15.
    \255\ Regulation NMS Adopting Release, supra note 21, at 37538 
(citations omitted). See also, Special Study, supra note 10, at 623 
(``A broker-dealer acting as an agent for a customer in the 
execution of a transaction assumes the obligations of a fiduciary . 
. . . A corollary of the fiduciary's duty of loyalty to his 
principal is his duty to obtain or dispose of property for his 
principal at the best price discoverable in the exercise of 
reasonable diligence.'') (citations omitted), available athttps://www.sechistorical.org/collection/papers/1960/1963_SSMkt_Chapter_07_2.pdf
---------------------------------------------------------------------------

    The duty of best execution is a foundational component of the 
current best execution regulatory framework that helps protect 
investors in a setting of imperfect markets. The duty serves to 
counteract market failures that arise, for example, when an agent (in 
this case, a broker or broker-dealer) has different incentives than a 
principal (investor), and the principal, particularly the retail 
investor, is not in a position to monitor the agent. This is known in 
economics as a principal-agent problem.\256\ A principal-agent problem 
arises when a broker-dealer undertakes costly actions to achieve best 
execution and the principal (investor) cannot observe the broker-
dealer's actions. The broker-dealer in this situation has financial 
incentives to take (or not take) certain actions to reduce its costs or 
increase its profits.
---------------------------------------------------------------------------

    \256\ See Joseph E. Stiglitz, Principal and Agent, in 
Allocation, Information and Markets 241 (John Eatwell et al. eds., 
1989).
---------------------------------------------------------------------------

    The principal-agent problem can be exacerbated by a specific 
conflict of interest that arises when the broker-dealer executes a 
customer order in a principal capacity.\257\ In these instances, the 
broker-dealer acting as principal on the trade has a financial 
incentive to maximize its gains from the trade, which would be at the 
expense of the counterparty, here the broker-dealer's customer, in a 
zero-sum game.\258\ This conflict of interest should be mitigated 
because the broker-dealer as agent for its customer also has a duty to 
ensure that the order was executed at the most favorable terms 
reasonably available to the customer under the circumstances. However, 
retail customers typically lack access to the information that would 
allow them to determine independently whether an order received best 
execution from a broker-dealer. Further, obtaining and analyzing such 
information could be costly for retail customers.
---------------------------------------------------------------------------

    \257\ For instance, a broker-dealer may decide to act in a 
principal capacity in a situation where there is a liquidity 
externality in that the investor's order lacks a counterparty, 
though the presence of such an externality is not necessary to the 
broker-dealer's decision.
    \258\ ``Trading is a zero-sum game in an important accounting 
sense. In a zero-sum game, the total gains of the winners are 
exactly equal to the total losses of the losers. Trading is a zero-
sum game, because the combined gains and losses of buyers and 
sellers always sum to zero.'' Larry Harris, Trading and Exchanges: 
Market Microstructure for Practitioners (2002).
---------------------------------------------------------------------------

    The Commission has long taken the position that the ``scope of 
[the] duty of best execution must evolve as changes occur in the market 
that give rise to improved executions for customer orders . . . [and 
that] broker-dealers' procedures for seeking to obtain best execution 
for customer orders also must be modified to consider price 
[improvement] opportunities that become `reasonably available.' '' 
\259\ Current SRO rules that specifically address broker-dealer best 
execution policies and procedures requirements focus on a retrospective 
``regular and rigorous'' review of execution quality. With limited 
exceptions, such as those for orders involving foreign securities, and 
securities for which there is limited pricing information or quotations 
available, existing SRO rules do not establish specific standards 
concerning a broker-dealer's policies and procedures for complying with 
the best execution obligations in FINRA Rule 5310(a) and MSRB Rule G-
18(a).\260\
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    \259\ See, e.g., Marc N. Geman, Securities Exchange Act Release 
No. 43963 (Feb. 14, 2001) (Commission opinion) (citing Order 
Execution Obligations Adopting Release, supra note 10, 61 FR 48322-
48323).
    \260\ As discussed supra in note 129 and the accompanying text, 
FINRA Rule 3110(b)(1) requires broker-dealers to have policies and 
procedures for compliance with FINRA rules and Federal securities 
laws and regulations. MSRB Rule G-18.08 requires broker-dealers to 
have policies and procedures for determining the best available 
market for the executions of their customers' transactions. MSRB 
Rule G-28 requires broker-dealers to have procedures for compliance 
with MSRB rules and the Exchange Act and rules thereunder. Unlike 
these FINRA and MSRB rules, proposed Regulation Best Execution would 
establish specific standards concerning the policies and procedures 
for complying with the proposed best execution standard, as 
discussed in sections IV.B.1 and 2 supra.
---------------------------------------------------------------------------

    The proposal would build on the existing regulatory framework, 
codify in a Commission rule a best execution standard that is 
consistent with how the Commission and the courts have described the 
duty of best execution, enhance the Commission's ability to enforce 
best execution, and impose detailed policies and procedures obligations 
on broker-dealers' handling and execution of customer orders, including 
documented incremental efforts required for a broker-dealer to obtain 
the most favorable price in conflicted transactions for or with retail 
customers.\261\ These requirements could further help enhance broker-
dealers' ability to maintain robust best execution practices, including 
in situations where broker-dealers have order handling conflicts of 
interest with retail customers.
---------------------------------------------------------------------------

    \261\ See supra section IV.
---------------------------------------------------------------------------

    The Commission estimates aggregate compliance costs of $165.4 
million in one-time costs and $128.9 million in annual costs on broker-
dealers as they update, or establish, their policies and procedures for 
the handling, execution, and review of customer orders. To the extent 
that broker-dealers already have policies and procedures that are 
consistent with the proposed rules, aggregate implementation costs 
would be less than this estimate, and based on the Commission's 
experience, the Commission preliminarily believes these estimates 
overstate costs broker-dealers would bear in implementing the 
proposal.\262\ Broker-dealers may also

[[Page 5483]]

incur indirect costs.\263\ Some of these costs could be passed through 
to customers in the form of higher commissions or reduced services.
---------------------------------------------------------------------------

    \262\ See infra section V.C.2.
    \263\ See infra section V.C.2.b).
---------------------------------------------------------------------------

    The Commission has considered the economic effects of proposed 
Regulation Best Execution and, wherever possible, the Commission has 
quantified the likely economic effects of proposed Regulation Best 
Execution. The Commission is providing both a qualitative assessment 
and quantified estimates of the potential economic effects of the 
proposal where feasible. The Commission has incorporated data and other 
information to assist it in the analysis of the economic effects of 
proposed Regulation Best Execution. However, as explained in more 
detail below, because the Commission does not have, and in certain 
cases does not believe it can reasonably obtain, data that may inform 
the Commission on certain economic effects, the Commission is unable to 
quantify certain economic effects. Further, even in cases where the 
Commission has some data, quantification is not practicable due to the 
number and type of assumptions necessary to quantify certain economic 
effects, which render any such quantification unreliable. Our inability 
to quantify certain costs, benefits, and effects does not imply that 
the Commission believes such costs, benefits, or effects are less 
significant. The Commission requests that commenters provide relevant 
data and information to assist the Commission in quantifying the 
economic consequences of proposed Regulation Best Execution.

B. Baseline

    Commission statements and SRO rules, including FINRA Rule 5310 and 
MSRB Rule G-18, and related SRO interpretive notices and guidance 
address broker-dealer best execution duties primarily through a broad, 
principles-based approach. Differences in security characteristics and 
market structure can cause broker-dealer order handling and execution 
practices to vary significantly across different asset classes, 
including the role that conflicts of interests play in the handling and 
execution of a broker-dealer's retail customer orders. In addition, 
policies related to the handling of customer orders can impact 
competition among broker-dealers, trading venues, and broker-dealers 
that offer order routing and execution services. The baseline against 
which the costs, benefits, and the effects on efficiency, competition, 
and capital formation of proposed Regulation Best Execution is measured 
consists of the current regulatory requirements and SRO guidance for 
broker-dealers concerning customer best execution, current broker-
dealer best execution review processes, the current market structure 
and broker-dealer practices concerning handling and executing customer 
orders that may be impacted by proposed Regulation Best Execution,\264\ 
and the structure of the market for broker-dealer services.
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    \264\ While proposed Regulation Best Execution would apply to 
all securities, the Commission preliminarily believes that the 
proposal would not have economic effects on the market structure or 
order handling practices in the markets for securities based swaps, 
asset-backed securities, and repurchase and reverse repurchase 
agreements because these markets are mostly dominated by 
institutional investors that do their own order handling. Therefore, 
the market structure and order handling practices in these markets 
are not discussed in the economic baseline of this release.
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1. Current Legal and Regulatory Framework
    Although FINRA and the MSRB have established rules and issued 
guidance directly addressing the duty of best execution that are 
applicable to their respective members, the Commission has never 
established its own rule governing a broker-dealer's legal duty of best 
execution. As described above in section II.A, the duty of best 
execution that a broker-dealer has today was originally derived from an 
implied representation that a broker-dealer makes to its customers when 
it agrees to engage in certain transactions on their behalf. The common 
law agency obligations of ``undivided loyalty and reasonable care'' 
that an agent owes to its principal require that a ``broker-dealer seek 
to obtain for its customer orders the most favorable terms reasonably 
available under the circumstances.'' \265\ Expressed in economic terms, 
because a ``client-principal seeks his own economic gain and the 
purpose of the agency is to help the client-principal achieve that 
objective, the broker-dealer['s best execution obligation], absent 
instructions to the contrary, [means that a broker-dealer] is expected 
to use reasonable efforts to maximize the economic benefit to the 
client in each transaction.'' \266\
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    \265\ Newton v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 
135 F.3d at 270.
    \266\ See id.
---------------------------------------------------------------------------

    In addition to the duty itself, the current framework consists of 
examination and monitoring programs conducted by the Commission and 
FINRA \267\ of Commission registrants and FINRA and MSRB members. Best 
execution is and has been a priority item in these examinations.\268\ 
In addition, FINRA produces monthly status reports for members, known 
as the best execution Outside-of-the-Inside report card, ``detailing 
the number of transactions reported to a FINRA [trade reporting] 
Facility, in which [a] firm participated that were executed Outside-of-
the-Inside market in apparent violation of the Best Execution Rule.'' 
\269\
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    \267\ The MSRB does not conduct its own enforcement or 
compliance examinations. MSRB, The Role and Jurisdiction of the 
MSRB, at 2 (2021) (``the SEC and federal bank regulators [ ] share 
responsibility for enforcement and compliance examinations''), 
available at https://www.msrb.org/sites/default/files/2022-09/Role-and-Jurisdiction-of-MSRB.pdf.
    \268\ The Division of Exams 2022 priorities note that best 
execution in fixed-income securities, best execution obligations in 
a zero commission environment, and possible effects of conflicts of 
interest on best execution are focus points of its broker-dealer 
exam program. Division of Examinations, 2022 Examination Priorities, 
at 19 and 20, available at https://www.sec.gov/files/2022-exam-priorities.pdf. According to FINRA, ``[a]ssessing firms' compliance 
with their best execution obligations under FINRA Rule 5310 (Best 
Execution and Interpositioning) is one of the cornerstones of 
FINRA's oversight activities.'' FINRA, 2022 Report on FINRA's 
Examination and Risk Monitoring Program, at 2 (Feb. 2022), available 
at https://www.finra.org/sites/default/files/2022-02/2022-report-finras-examination-risk-monitoring-program.pdf.
    \269\ FINRA, Best Execution Outside-of-the-Inside Report Card, 
available at https://www.finra.org/compliance-tools/report-center/equity/best-execution-outside-inside-report-card. Member firms are 
told that they should ``make no inference . . . that FINRA staff has 
or has not determined that the information contained on the Best 
Execution Outside-of-the-Inside report cards does or does not 
constitute rule violations.'' Id.
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(a) Commission and Court Statements, Agency Guidance, and Enforcement 
Activities
    In the context of agency rulemaking, adjudication, and Federal 
court litigation, the Commission and various Federal courts of appeal 
have articulated what the duty of best execution means and interpreted 
how the duty applies in various circumstances. For example, the duty of 
best execution requires a broker-dealer to ``execute customers' trades 
at the most favorable terms reasonably available under the 
circumstances, i.e., at the best reasonably available price.'' \270\ 
When considering what the

[[Page 5484]]

best reasonably available price means in the context of a broker-
dealers' best execution analysis, the Commission has articulated a non-
exhaustive list of factors that may be relevant to broker-dealers' best 
execution analysis. These factors include the size of the order, speed 
of execution, clearing costs, the trading characteristics of the 
security involved, the availability of accurate information affecting 
choices as to the most favorable market center for execution and the 
availability of technological aids to process such information, and the 
cost and difficulty associated with achieving an execution in a 
particular market center.\271\
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    \270\ Regulation NMS Adopting Release, supra note 21, at 37538. 
See also Order Execution and Routing Practice Release, supra note 
22, at 75418 (price is a critical concern for investors); Geman v. 
SEC, 334 F.3d 1183, 1186 (10th Cir. 2003) (``[T]he duty of best 
execution requires that a broker-dealer seek to obtain for its 
customer orders the most favorable terms reasonably available under 
the circumstances.'') (quoting Newton v. Merrill, Lynch, Pierce, 
Fenner & Smith, Inc., 135 F.3d 266, 270 (3d Cir. 1998)); Kurz v. 
Fidelity Management & Research Co., 556 F.3d 639, 640 (7th Cir. 
2009) (describing the ``duty of best execution'' as ``getting the 
optimal combination of price, speed, and liquidity for a securities 
trade'').
    \271\ See Order Execution and Routing Practice Release, supra 
note 22, at 75422; Regulation NMS Adopting Release, supra note 21, 
at 37538.
---------------------------------------------------------------------------

    Other Commission statements address what best execution means in 
the context of various market practices and circumstances. 
Interpositioning, which occurs when a broker-dealer places a third 
party between itself and the best market for executing a customer trade 
in a manner that results in a customer not receiving the best available 
market price or paying unnecessary expenses, violates the broker-
dealer's duty of best execution.\272\ When a broker-dealer receives a 
limit order, the duty of best execution requires the broker-dealer to 
account for potential material differences in execution quality, such 
as the likelihood of execution among the various securities markets or 
market centers to which limit orders may be routed.\273\ The Commission 
has also recognized that it may be impractical for a broker-dealer that 
handles a heavy volume of orders to make individual determinations 
regarding where to route each order \274\ and that the duty of best 
execution requires a broker-dealer to assess periodically the quality 
of competing markets to ensure that its customers' order flow is 
directed to the markets providing the most beneficial terms.\275\
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    \272\ See supra notes 29-30 listing Commission opinions. See 
also SEC v. Ridenour, 913 F.2d 515 (8th Cir. 1990) (bond salesman's 
interpositioning of personal trading between his customers' 
securities transactions and the market violated the antifraud 
provisions).
    \273\ See Order Execution Obligations Adopting Release, supra 
note 10, at 48323.
    \274\ See Payment for Order Flow Release, supra note 33, at 
55009.
    \275\ See Regulation NMS Adopting Release, supra note 21, at 
37516; Payment for Order Flow Release, supra note 33, at 55009.
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    Although the Commission has not established a set of specific 
minimum data elements that a broker-dealer would need to acquire to 
achieve best execution \276\ and has acknowledged that it cannot 
specify the data elements that may be relevant to every specific 
situation,\277\ it has identified the various types of data needed by 
broker-dealers to fulfill their duty of best execution. For example, 
information contained in the public quotation system must be considered 
in seeking best execution of customer orders.\278\ In adopting Rules 
605 and 606,\279\ the Commission recognized that the reports required 
of market centers would provide statistical disclosures regarding 
certain factors, such as execution price and speed of execution, 
relevant to a broker-dealer's order routing decisions and that these 
public disclosures of execution quality should help broker-dealers 
fulfill their duty of best execution.\280\ More recently, the 
Commission emphasized that broker-dealers should consider the 
availability of consolidated market data, including the various 
elements of data content and the timeliness, accuracy, and reliability 
of the data in developing and maintaining best execution policies and 
procedures.\281\
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    \276\ See MDI Adopting Release, supra note 38, at 18606.
    \277\ Id.
    \278\ See Order Execution and Routing Practice Release, supra 
note 22, at 75418.
    \279\ 17 CFR 242.605, 242.606.
    \280\ See Order Execution and Routing Practice Release, supra 
note 22, at 75418. See also, id. at 75420 (information provided by 
these reports is not, by itself, sufficient to support conclusions 
regarding the provision of best execution, and any such conclusions 
would require a more in-depth analysis of the broker-dealer's order 
routing practices than will be available from the disclosures 
required by the rules).
    \281\ See MDI Adopting Release, supra note 38, at 18605-06.
---------------------------------------------------------------------------

    The Commission has also emphasized the importance of price 
improvement in considering whether a customer order received best 
execution stating that ``notwithstanding any ambiguity that may have 
once existed [ ], it should now be clear that a firm must consider the 
potential for price improvement in carrying out its best execution 
obligations.'' \282\ Relatedly, the Commission has taken the position 
that simply routing customer order flow for automated executions or 
internalizing customer orders on an automated basis at the best bid or 
offer does not necessarily satisfy a broker-dealer's duty of best 
execution for small orders in non-NMS stock equity securities (and NMS 
stocks).\283\ Rather, broker-dealers handling small orders should look 
for price improvement opportunities when executing these orders.\284\ 
And the expectation of price improvement for customer orders is 
particularly important when broker-dealers receive payment for order 
flow.\285\ According to the Commission, a broker-dealer's receipt of 
payment for order flow is not a violation of its duty of best execution 
as long as it periodically assesses the quality of the markets to which 
it routes packaged order flow.\286\
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    \282\ Marc N. Geman, Exchange Act Release No. 43963 (Feb. 14, 
2001) (C'n opinion) (record did not support a finding that firm 
fraudulently violated its duty of best execution), affirmed on other 
grounds, 334 F.3d 1183, 1186 (10th Cir. 2003). See Order Execution 
Obligations Adopting Release, supra note 10, at 48323. See also, id. 
at 48323 n. 357
    \283\ See id. at 48323.
    \284\ See id.
    \285\ See Payment for Order Flow Release, supra note 33, at 
55008. See Exchange Act Rule 10b-10, 17 CFR 240.10b-10. See also 
supra note 43 (reviewing the definition of payment for order flow).
    \286\ See Payment for Order Flow Release, supra note 33, at 
55009.
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    An additional component of the best execution baseline for the 
Commission is enforcement mechanisms. The Commission has broad 
statutory authority under the Exchange Act to bring an injunctive 
action in Federal district court under Exchange Act Section 21(d)(1) 
whenever any person is engaged or is about to engage in acts or 
practices constituting a violation of the Federal securities laws and 
rules and regulations thereunder and, among other things, FINRA and 
MSRB rules, including best execution rules. Exchange Act Section 21(f) 
directs the Commission not to bring an injunctive action against any 
person for a SRO rule violation ``unless . . . such self-regulatory 
organization . . . is unable or unwilling to take appropriate action . 
. ., or (2) such action is otherwise necessary or appropriate in the 
public interest or for the protection of investors.'' \287\ The 
Commission's authority to obtain monetary sanctions in Federal district 
court actions for FINRA and MSRB rule violations is also not co-
extensive with its authority to obtain injunctive relief for violations 
of the Federal securities laws. For example, while the Commission can 
seek disgorgement and any equitable relief for Federal securities law 
violations and SRO rule violations, the Commission's authority to 
obtain civil penalties in a Federal district court action under Section 
21(d) extends to violations of ``any provision of th[e

[[Page 5485]]

Exchange Act], the rules or regulations thereunder, or a cease-and-
desist order entered by the Commission . . . other than [ ] a violation 
subject to a penalty pursuant to [the Exchange Act provision penalizing 
insider trading violations].'' \288\ Section 21(d)(3) does not include 
the language in Section 21(d)(1) regarding the ``rules of a registered 
securities association'' or the ``rules of the Municipal Securities 
Rulemaking Board.''
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    \287\ Under Exchange Act Section 21(f), the Commission ``shall 
not bring any action pursuant to subsection (d) or (e) of this 
section against any person for violation of, or to command 
compliance with, the rules of a self-regulatory organization . . . 
unless it appears to the Commission that (1) such self-regulatory 
organization . . . is unable or unwilling to take appropriate action 
against such person in the public interest and for the protection of 
investors, or (2) such action is otherwise necessary or appropriate 
in the public interest or for the protection of investors.''
    \288\ Exchange Act Section 21(d)(3)(A).
---------------------------------------------------------------------------

    The Commission's authority to obtain relief in administrative and 
cease-and-desist proceedings is more limited. The Commission can 
institute administrative proceedings pursuant to Exchange Act Sections 
15(b)(4) and 15(b)(6), against broker dealers and their associated 
persons respectively, and pursuant to Exchange Act Sections 15B(c)(2) 
and 15B(c)(4) against municipal securities dealers and their associated 
persons respectively, for willful violations, and willful aiding and 
abetting violations of, among other things, the Federal securities 
statutes, the rules and regulations thereunder, ``or the rules of the 
Municipal Securities Rulemaking Board.'' \289\ There is no parallel 
provision for the rules of an SRO or a registered securities 
association such as FINRA. A cease-and-desist proceeding can be brought 
only if ``any person is violating, has violated, or is about to violate 
any provision of [the Exchange Act], or any rule or regulation 
thereunder.'' \290\ There is no parallel provision for the rules of the 
MSRB \291\ or the rules of a Federal securities association.\292\
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    \289\ Exchange Act Section 15(b)(4)(D) and (E) and 
15(b)(6)(A)(i). Where broker-dealer's best execution-related 
misconduct has also involved fraud, the Commission may exercise its 
discretion to bring best execution-based fraud charges pursuant to 
the Exchange Act's and the Securities Act's antifraud provisions. 
See, e.g., Linkbrokers Derivatives LLC, Exchange Act Rel. No. 72,846 
(Aug. 14, 2014) (settled Section 15(b) and cease-and-desist 
proceeding alleging antifraud violations of Exchange Act Section 
15(c)(1)), available at https://www.sec.gov/litigation/admin/2014/34-72846.pdf.
    \290\ Exchange Act Section 21C(a).
    \291\ Where the Commission can institute an administrative 
proceeding under both Sections 15B(c) and 21C, the Commission can 
order remedies, including a cease-and-desist order, and other 
sanctions against a municipal securities dealer. See, e.g., RBC 
Capital Markets, LLC, Exchange Act Rel. No. 93,042 (Sept. 17, 2021) 
(settled action) available at https://www.sec.gov/litigation/admin/2021/34-93042.pdf.
    \292\ In situations where broker-dealer best execution-related 
misconduct has involved fraud, the Commission can exercise its 
discretion to bring best execution-based fraud charges pursuant to 
the Exchange Act's or the Securities Act's antifraud provisions. 
See, e.g., Robinhood SEC, supra note 69 (settled cease-and-desist 
proceeding alleging antifraud violations of Securities Act Sections 
17(a)(2) and 17(a)(3)) https://www.sec.gov/litigation/admin/2020/33-10906.pdf; Patrick R. Burke, Exchange Act Rel. No. 76,285 (Oct. 28, 
2015) (settled cease-and-desist and Section 15(b) proceeding 
alleging antifraud violations of Exchange Act Section 10(b) and Rule 
10b-5 and Securities Act Section 17(a)), available at https://www.sec.gov/litigation/admin/2015/33-9968.pdf.
---------------------------------------------------------------------------

(b) FINRA Rule 5310 Best Execution Rule and Related Information
    As discussed in greater detail in Sections II.C and IV., FINRA has 
a rule for its members that details their best execution 
obligations.\293\ Specifically, Rule 5310(a)(1) states that ``[i]n any 
transaction for or with a customer or customer of another broker-
dealer, a member and persons associated with a member shall use 
reasonable diligence to ascertain the best market for the subject 
security and buy or sell in such market so that the resultant price to 
the customer is as favorable as possible under prevailing market 
conditions.'' \294\ FINRA's rule applies ``not only where the member 
acts as agent for the account of its customer but also where 
transactions are executed as principal'' \295\ and cannot be 
transferred to others.\296\ Interpositioning is expressly 
prohibited.\297\ Like the position taken by the Commission,\298\ 
FINRA's rule lists a set of non-exclusive ``factors that will be 
considered in determining whether a member has used `reasonable 
diligence.'' The five factors listed are:
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    \293\ Rule 5310, which first became effective in May 2012, 
consolidated FINRA members' best execution requirements that were 
based largely on NASD Rule 2320 and NASD Interpretive Guidance with 
Respect to Best Execution Requirements, NASD IM-2320, as well as new 
provisions. FINRA, Regulatory Notice 12-13, SEC Approves 
Consolidated FINRA Best Execution Rule, available at https://www.finra.org/rules-guidance/notices/12-13. As previously noted 
supra in note 129, in addition to FINRA's best execution rule, FINRA 
Rule 3110(b)(1) requires broker-dealers to have procedures for 
compliance with FINRA rules (including its best execution rule) and 
Federal securities laws and regulations. Separately, FINRA Rules 
3130(b) and (c) require the chief executive officer (or equivalent 
officer) of a FINRA member to certify annually that the member has 
in place processes to establish, maintain, review, test and modify 
written compliance policies and written supervisory procedures 
reasonably designed to achieve compliance with applicable FINRA 
rules, MSRB rules, and Federal securities laws and regulations. See 
also, FINRA Regulatory Notice 21-12, supra note 174, at 9 (``FINRA 
has also advised Member firms should have effective procedures in 
place to ensure they are fulfilling their best execution obligations 
during extreme market conditions'').
    \294\ FINRA Rule 5310(a)(1), available at https://www.finra.org/rules-guidance/rulebooks/finra-rules/5310. FINRA rule 5310 
recodified FINRA's predecessor, the NASD, rule and interpretative 
material (IM) governing best execution and interpositioning, NASD 
Rule 2320 and IM-2320. FINRA's most recent regulatory guidance on 
Rule 5310 is contained in Regulatory Notice 15-46, Best Execution: 
Guidance on Best Execution Obligations in Equity, Options and Fixed 
Income Markets (Nov. 2015) (``FINRA Regulatory Notice 15-46''), 
available at https://www.finra.org/sites/default/files/notice_doc_file_ref/Notice_Regulatory_15-46.pdf; and Regulatory 
Notice 21-23, Best Execution and Payment for Order Flow (June 23, 
2021) (``FINRA Regulatory Notice 21-23'') available at https://www.finra.org/sites/default/files/2021-06/Regulatory-Notice-21-23.pdf.
    \295\ FINRA Rule 5310(e). This paragraph also states that a 
broker-dealer's duty of best execution is ``distinct from the 
reasonableness of commission rates, markups, or markdowns, which are 
governed by Rule 2121 and its Supplementary Material.'' Id.
    \296\ FINRA Rule 5310.09(a).
    \297\ FINRA Rule 5310(a)(2). This subparagraph is one of a 
number of the rule's specific provisions addressing 
interpositioning. For a discussion of the related burdens and 
prohibitions imposed by FINRA in connection with interpositioning, 
see the discussion of FINRA Rules 5310(b), (c), and (d) in Section 
IV.A., including the text accompanying supra notes 149 and 150.
    \298\ See Order Execution and Routing Practice Release, supra 
note 22, at 75422, and the accompanying discussion.

    i. the character of the market for the security (e.g., price, 
volatility, relative liquidity, and pressure on available 
communications);
    ii. the size and type of transaction;
    iii. the number of markets checked;
    iv. accessibility of the quotation; and
    v. the terms and conditions of the order which result in the 
transaction, as communicated to the member and persons associated 
with the member.\299\
---------------------------------------------------------------------------

    \299\ FINRA Rule 5310(a)(1).

    FINRA's best execution rule and related guidance \300\ addresses 
how its members' obligations and these factors are accounted for and 
considered. For example, for debt securities, FINRA Rule 5310.03 
explains that the term ``quotation'' in its ``accessibility of the 
quotation'' factor ``refers to either dollar (or other currency) 
pricing or yield pricing'' and that ``[i]n the absence of 
accessibility, members are not relieved from taking reasonable steps 
and employing their market expertise in achieving the best execution of 
customer orders.'' \301\ FINRA Rule 5310.06 also states that FINRA 
members ``must have written policies and procedures in place that 
address how the member will determine the best inter-dealer market for 
such a security in the absence of pricing information or multiple 
quotations and must document its compliance with those policies and 
procedures.''
---------------------------------------------------------------------------

    \300\ FINRA Rule 5310 includes supplementary material which 
addresses: (i) the execution of marketable customer orders; (ii) the 
definition of ``market;'' (iii) debt securities; (iv) executing 
brokers; (v) the use of another broker, a broker's broker, to 
execute a customer's orders; (vi) orders involving securities with 
limited quotation or pricing information; (vii) orders involving 
foreign securities; (viii) customer instructions for order handling; 
and (ix) the regular and rigorous review of execution quality. The 
text of FINRA Rule 5310 is available at https://www.finra.org/rules-guidance/rulebooks/finra-rules/5310. Regulatory Notices 15-46 and 
21-23 are FINRA guidance documents for its best execution rule.
    \301\ FINRA Rule 5310.03.
---------------------------------------------------------------------------

    FINRA Rule 5310.07 also addresses orders involving foreign 
securities.

[[Page 5486]]

``Even though a security does not trade in the U.S., members still have 
an obligation to seek best execution for customer orders involving any 
foreign security.'' \302\ ``[A] member that handles customer orders 
involving foreign securities that do not trade in the U.S. must have 
specific written policies and procedures in place regarding its 
handling of customer orders for these securities that are reasonably 
designed to obtain the most favorable terms available for the customer, 
taking into account differences that may exist between U.S. markets and 
foreign markets.'' \303\ Referencing two of its factors to be 
considered, FINRA Rule 5310.07 states that ``the character of the 
particular foreign market and the accessibility of quotations in 
certain foreign markets may vary significantly'' and that ``the 
determination as to whether a member has satisfied its best execution 
obligations necessarily involves a `facts and circumstances' 
analysis.'' \304\ Further, for customer orders involving a foreign 
security FINRA requires its members to ``have specific written policies 
and procedures in place regarding its handling of customer orders for 
these securities that are reasonably designed to obtain the most 
favorable terms available for the customer.'' \305\
---------------------------------------------------------------------------

    \302\ FINRA Rule 5310.07.
    \303\ Id.
    \304\ Id. The rule also states that ``best execution obligations 
also must evolve as changes occur in the market that may give rise 
to improved executions [and] members also must regularly review 
these policies and procedures to assess the quality of executions 
received and update or revise the policies and procedures as 
necessary.''
    \305\ Id.
---------------------------------------------------------------------------

    FINRA rules address two situations where a member's best execution 
obligation is modified or no longer applicable. If a broker-dealer 
``receives an unsolicited instruction from a customer to route that 
customer's order to a particular market for execution, the member is 
not required to make a best execution determination beyond the 
customer's specific instruction.'' \306\ FINRA Rule 5310.04 addresses a 
specific situation where its best execution rule does not apply. The 
rule ``does not apply in instances when another broker-dealer is simply 
executing a customer order against the member's quote.'' The rule 
explains that ``[t]he duty to provide best execution to customer orders 
received from other broker-dealers arises only when an order is routed 
from the broker-dealer to the member for the purpose of order handling 
and execution.'' \307\
---------------------------------------------------------------------------

    \306\ FINRA Rule 5310.08. FINRA does require, however, that the 
broker-dealer process the ``order promptly in accordance with [its] 
terms . . . [and] where a customer has directed that an order be 
routed to another specific broker-dealer,'' that broker-dealer 
receiving the directed order would be subject to the duty of best 
execution with respect to the customer's order. Id.
    \307\ FINRA Rule 5310.04 (emphasis added).
---------------------------------------------------------------------------

    FINRA Rule 5310 addresses a broker-dealer's best execution-related 
obligations to determine order execution quality. FINRA Rule 5310.09(a) 
requires that ``[a] member that routes customer orders to other broker-
dealers for execution on an automated, non-discretionary basis, as well 
as a member that internalizes customer order flow, must have procedures 
in place to ensure the member periodically conducts regular and 
rigorous reviews of the quality of the executions of its customers' 
orders if it does not conduct an order-by-order review.'' \308\ This 
``regular and rigorous'' review must be conducted at a minimum no less 
frequently than quarterly unless, based on a member's business, ``more 
frequent reviews are needed.'' Reviews are required to be done on a 
security-by-security and type-of-order basis.\309\ Execution quality 
reviews must compare customer execution quality to the execution 
quality of other markets that are not used for customer order 
execution.\310\ However, FINRA Rule 5310.09(c) allows a broker-dealer 
to rely on another broker-dealer's regular and rigorous review if the 
broker-dealer seeking to rely ``routes its order flow to another member 
that has agreed to handle that order flow as agent for the customer 
(e.g., a clearing firm or other executing broker-dealer)'' and ``as 
long as the statistical results and rationale of the review are fully 
disclosed to the member and the member periodically reviews how the 
review is conducted, as well as the results of the review.'' \311\ 
Issues associated with payment for order flow are also addressed in 
FINRA's best execution rule and guidance. FINRA recently issued best 
execution guidance that stated that ``firms that provide payment for 
order flow for the opportunity to internalize customer orders cannot 
allow such payments to interfere with their best execution 
obligations.'' \312\ For example, ``inducements such as payment for 
order flow and internalization may not be taken into account in 
analyzing market quality.'' \313\
---------------------------------------------------------------------------

    \308\ FINRA Rule 5310.09(a). FINRA has stated that there are two 
situations where an order-by-order review would satisfy best 
execution requirements when a ``regular and rigorous review alone . 
. . may not'' do so. One involves certain larger-sized security 
orders. See FINRA Regulatory Notice 15-46, supra note 294, at 3 
(``when routing or internally executing larger-sized orders in any 
security, regular and rigorous review alone (as opposed to an order-
by-order review) may not satisfy best execution requirements, given 
that the execution of larger-size orders ``often requires more 
judgment in terms of market timing and capital commitment'' (quoting 
NASD Notice to Members 01-22 at n. 13)). The other circumstance 
involves ``any orders that a member firm determines to execute 
internally'' which, according to FINRA Regulatory Notice 21-23, 
``are subject to an order-by-order best execution analysis.'' Id., 
supra note 294, at 3. FINRA guidance includes commentary that 
advances in technology make ``order-by-order review of execution 
quality [ ] increasingly possible for a range of orders in equity 
securities and standardized options. Id. Although the text of FINRA 
Rule 5310 and its interpretive guidance refer to an ``order-by-order 
review'' in contrast to the ``regular and rigorous review'' detailed 
in Rule 5310.09, it is our understanding that FINRA has not directly 
addressed what an ``order-by-order review'' entails.
    \309\ FINRA Rule 5310.09(a).
    \310\ ``[A] member must determine whether any material 
differences in execution quality exist among the markets trading the 
security and, if so, modify the member's routing arrangements or 
justify why it is not modifying its routing arrangements.'' FINRA 
Rule 5310.09(b). FINRA has identified eight factors for members to 
consider in order to assure that order flow is directed to markets 
providing the most beneficial terms for a member's customers' 
orders. These factors are discussed in the text accompanying supra 
note 299.
    \311\ FINRA Rule 5310.09(c).
    \312\ FINRA Regulatory Notice 21-23, supra note 294, at 4.
    \313\ Id. FINRA's guidance stated that ``the possibility of 
obtaining price improvement is a heightened consideration when a 
broker-dealer receives payment for order flow.'' Id. (citation 
omitted).
---------------------------------------------------------------------------

    ``In other words, . . . firms may not negotiate the terms of order 
routing arrangements for those customer orders in a manner that reduces 
the price improvement opportunities that otherwise would be available 
to those customer orders absent payment for order flow.'' \314\
---------------------------------------------------------------------------

    \314\ Id. (citing FINRA Regulatory Notice 15-46, supra note 294, 
at n.25 (``For example, if a firm obtains price improvement at one 
venue of $0.0005 per share, and it could obtain mid-point price 
improvement at another venue of $0.025 per share, the firm should 
consider the opportunity of such midpoint price improvement on that 
other venue as part of its best execution analysis.'')).
---------------------------------------------------------------------------

    FINRA publishes reports that include the results of its examination 
program's annual review of member best execution compliance. These 
reports, covering examinations from 2017 through 2021, include a series 
of findings and observations on various aspects of Rule 5310.\315\ In 
each year, FINRA observed some noncompliance with Rule 5310. Among the 
points made in each report, FINRA reported observing some firms that 
did not: (1) assess execution in competing markets; (2) conduct an 
adequate review on a type-of-order basis; (3) evaluate certain required 
factors when conducting regular and rigorous review; and, in more 
recent

[[Page 5487]]

years, (4) consider and address potential conflicts of interest in 
conflicts of interest relating to routing of orders to affiliated 
broker-dealers, ATSs, or market centers that provide payment for order 
flow or other routing inducements.\316\
---------------------------------------------------------------------------

    \315\ Each of these reports is available at https://www.finra.org/media-center/reports-studies. For 2017 through 2019, 
the reports are titled ``FINRA Report on Examination Findings.'' 
More recent reports are titled ``Report on FINRA's Examination and 
Risk Monitoring Program.''
    \316\ Id.
---------------------------------------------------------------------------

(c) MSRB Rule G-18 Best Execution Rule and Guidance
    The MSRB's adopted its best execution rule, Rule G-18, in 2015 
which became effective on March 21, 2016.\317\ It is generally modeled 
after and similar to FINRA Rule 5310.\318\ It extends the outline of 
``reasonable diligence'' to include ``the information reviewed to 
determine the current market for the subject security or similar 
securities,'' provides more granular detail regarding transactions in 
which the broker-dealer acts in a principal capacity, and directs at 
least annual reviews of best execution (versus at least quarterly 
reviews required by FINRA). Unlike FINRA Rule 5310, MSRB Rule G-48(e) 
provides an exception from the requirements of Rule G-18 for all 
transactions with sophisticated municipal market professionals, defined 
in MSRB Rule D-15.\319\ According to FINRA and the MSRB, there are two 
instances where ``material differences'' exist between the MSRB's best 
execution guidance and FINRA's.\320\ They involve the regular and 
rigorous review of execution quality required by members,\321\ and the 
timeliness of executions consistent with reasonable diligence.\322\ 
MSRB Rule G-18.08(a) requires a broker-dealer to, at a minimum, conduct 
annual reviews of its policies and procedures for determining the best 
available market for the execution of its customers' transactions. MSRB 
Rule G-18.08(b) provides that where a broker-dealer routes its 
customers' transactions to another broker-dealer, and that broker-
dealer has agreed to handle those transactions as agent or riskless 
principal for the customer, the routing broker-dealer may rely on the 
other broker-dealer's periodic reviews as long as the results and 
rationale of the reviews are fully disclosed to the broker-dealer and 
the broker-dealer periodically reviews how the other broker-dealer's 
reviews are conducted and the results of such reviews.\323\
---------------------------------------------------------------------------

    \317\ The full text of the MSRB rule is available at https://www.msrb.org/Rules-and-Interpretations/MSRB-Rules/General/Rule-G-18.aspx. The rule applies to brokers, dealers, and municipal 
securities dealers. In addition, MSRB Rule G-28 requires broker-
dealers to have procedures for compliance with MSRB rules and the 
Exchange Act and rules thereunder. As previously noted in supra note 
48, for ease of discussion and consistency, when discussing the MSRB 
rule, the release refers to these entities collectively as ``broker-
dealers.'' The MSRB issued ``Implementation Guidance on MSRB Rule G-
18, on Best Execution'' on November 20, 2015 (``MSRB 2015 
Guidance''), available at https://www.msrb.org/~/media/Files/MISC/
Best-Ex-Implementation-Guidance.ashx. An updated version of portions 
of that guidance from February 7, 2019 (``MSRB Notice 2019-05'') is 
available at https://www.msrb.org/-/media/Files/Regulatory-Notices/Announcements/2019-05.ashx??n=1. The MSRB and FINRA coordinated 
their issuance of independent guidance in 2015 with each notice 
including a statement that the guidance being issued was 
``consistent in all material respects with guidance on best 
execution obligations [being published by the other SRO] . . . 
except where the rule or context otherwise specifically requires.'' 
MSRB 2015 Guidance, at n. 1; FINRA Regulatory Notice 15-46, supra 
note 294, at n. 1. The MSRB has also issued information for 
investors available at https://www.msrb.org/msrb1/pdfs/Best-Execution-Investors-Perspective.pdf.
    \318\ See sections II.C and IV for detailed discussions of Rule 
G-18. The discussion in this section of the economic analysis is 
largely limited to identifying the differences between Rule G-18 and 
FINRA Rule 5310.
    \319\ MSRB Rule G-48 and paragraph (e) provide that ``a broker, 
dealer, or municipal securities dealer's obligations to a customer 
that it reasonably concludes is a Sophisticated Municipal Market 
Professional, or SMMP, as defined in Rule D-15, shall be modified'' 
such that ``[t]he broker, dealer, or municipal securities dealer 
shall not have any obligation under Rule G-18 to use reasonable 
diligence to ascertain the best market for the subject security and 
buy or sell in that market so that the resultant price to the SMMP 
is as favorable as possible under prevailing market conditions.'' 
See supra note 120.
    \320\ FINRA Regulatory Notice 15-46, supra note 294, at 12 n. 1; 
MSRB Notice 2019-05, supra note 317, at 4 n.1. In addition to these 
``material differences,'' the MSRB guidance also expressly states 
that the provisions of Rule G-18 do not apply to transactions in 
municipal fund securities.'' MSRB Rule G-18.09. The FINRA guidance 
has no comparable position.
    \321\ The MSRB, ``[i]n adopting Rule G-18, and paragraph .08 of 
the Supplementary Material specifically, [ ] did not include 
provisions that are contained in FINRA Rule 5310 pertaining to 
``regular and rigorous review of execution quality,'' to tailor the 
rule to the characteristics of the municipal securities market.'' 
MSRB Notice 2019-05, supra note 317, at 7 n.12.
    \322\ FINRA Regulatory Notice 15-46, supra note 294, at 12 n. 1.
    \323\ For a discussion of how the MSRB has interpreted the 
obligations of introducing brokers, see supra note 229.
---------------------------------------------------------------------------

    The other material difference between FINRA and MSRB best execution 
rules can be found in MSRB Rule G-18.03. According to this rule, ``[a] 
dealer must make every effort to execute a customer transaction 
promptly, taking into account prevailing market conditions. In certain 
market conditions a dealer may need more time to use reasonable 
diligence to ascertain the best market for the subject security.'' 
\324\ FINRA Rule 5310 has no similar provision noting the potential 
need for more time.
---------------------------------------------------------------------------

    \324\ MSRB Rule G-18.03.
---------------------------------------------------------------------------

    MSRB does not have authority to bring enforcement actions itself. 
Rather, FINRA and the Commission may enforce MSRB rules.
2. Best Execution Review Processes
    Policies and procedures for reviewing the execution quality of 
customer orders vary across broker-dealers. Under the existing SRO 
rules and guidance, broker-dealers \325\ that route to clearing or 
executing brokers on an agency basis may rely on the best execution 
review of their clearing firm or executing brokers. Other broker-
dealers may use third-party transactions costs analysis (TCA) services 
and internal review systems, including best execution committees. 
Currently, broker-dealers review best execution to standards set by 
FINRA Rule 5310 or MSRB Rule G-18, as applicable.\326\ FINRA Rule 5310 
requires at least a quarterly review of execution quality. MSRB Rule G-
18 requires an annual review of best execution policies and procedures 
that takes into account execution quality obtained under those policies 
and procedures, among other things. In performing reviews of customers' 
order execution quality, broker-dealers compare the execution actually 
achieved to the execution quality in other markets that were not used. 
Overall, these processes help broker-dealers to evaluate whether or not 
access to a specific market will improve customer execution quality 
given cost of access. FINRA Rule 5310.02 provides a ``market'' 
definition and states that broker-dealers must not mandate that 
``certain trading venues have less relevance than others in the course 
of determining a firm's best execution obligations.'' What constitutes 
a relevant/material market to access varies based on the needs of the 
individual customer order and estimated changes in their transaction 
costs. A best execution policy including a documented process of venue 
selection aids this decision.
---------------------------------------------------------------------------

    \325\ These broker-dealers can include introducing brokers as 
proposed to be defined by this rule, but FINRA's rule applies more 
generally.
    \326\ See supra Section II.C for a detailed discussion of FINRA 
and MSRB best execution review requirements.
---------------------------------------------------------------------------

    Introducing brokers perform best execution reviews by evaluating 
the execution quality achieved by brokers to which they route their 
customers' orders. As discussed above in this section, introducing 
brokers \327\ may rely on the best execution review processes of their 
routing or executing brokers and use these to evaluate the execution

[[Page 5488]]

quality of orders by comparing execution statistics of executing 
brokers, with which the introducing broker has a relationship. The 
Commission believes this is currently done by comparing execution 
statistics in aggregate, rather than on an order-by-order basis, except 
where an introducing broker is following FINRA's statements in its 
regulatory notice regarding order-by-order best execution reviews.\328\ 
Introducing brokers typically have pre-arranged agreements with a small 
number of executing brokers, which vary by introducing broker.\329\ 
This may lead to introducing brokers principally relying on execution 
statistics from these executing brokers to determine whether customers' 
orders are receiving best execution. While the FINRA rule requires 
introducing brokers to review the methodology and results of its 
executing broker's regular and rigorous review of its execution quality 
on a quarterly basis, it does not specifically require the introducing 
broker to compare the execution quality of its executing broker(s) to 
what it would have received from other executing brokers.\330\
---------------------------------------------------------------------------

    \327\ All broker-dealers who route to executing or clearing 
brokers on an agency basis may use this reliance, per FINRA Rule 
5310, for the purposes of best execution.
    \328\ See supra note 308 for further discussion on FINRA's rules 
and guidance related to broker-dealers reviewing the execution 
quality of customer orders.
    \329\ See Henry F. Minnerop, The Role and Regulation of Clearing 
Brokers-Revisited, 75 Bus. Lawyer 2201 (Summer 2020), available at 
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3663233 
(retrieved from Elsevier database).
    \330\ See FINRA Rule 5310.09(c), Regular and Rigorous Review of 
Execution Quality.
---------------------------------------------------------------------------

    Executing brokers are able to conduct a more thorough review of 
execution quality of the orders they receive. Executing brokers review 
execution quality by comparing execution statistics of executions 
received given particular execution methods, e.g., routing to a 
particular market center or internalization. The Commission 
preliminarily believes this review is highly heterogeneous among 
executing brokers (i.e., some use third party transaction cost analysis 
(``TCA'') services exclusively while others supplement and verify their 
own analysis with third party TCA statistics), with some brokers 
performing very rigorous comparisons of executions using various 
methods, and other brokers performing a more cursory review.
    Some brokers may utilize third-party analysis in their execution 
quality reviews. In order to evaluate their execution quality, some 
brokers may send information on their orders to third parties TCA 
services to produce independent order execution quality statistics. TCA 
components may include, but are not necessarily limited to, fees, 
taxes, rebates, spreads, delay costs, price appreciation, market 
impact, timing risk, and opportunity costs. For example, TCA service 
providers in the NMS stock and options markets may produce execution 
quality reports for their clients which contain, in addition to other 
metrics, information on the percentage of trades receiving price 
improvement, percentage of trades at or within the NBBO, average 
savings per share from price improvement, liquidity multiple (i.e., 
average size of order execution at or better than the NBBO at the time 
of order routing, divided by average quoted size), execution speed, and 
effective to quoted spread ratios. In NMS Stocks, broker-dealers may 
also utilize Rule 605 reports to help evaluate execution quality at 
different market centers, including market to which they may not route 
orders.\331\
---------------------------------------------------------------------------

    \331\ See supra note 223 and accompanying discussion for more 
information on Rule 605 reports.
---------------------------------------------------------------------------

    Some broker-dealers use best execution committees (BECs) to 
evaluate their execution quality and establish their best execution 
policies and procedures. Order-by-order reviews are typically reserved 
for large orders, which likely leaves the execution quality review of 
retail orders as a task to be done in aggregate. BECs meet 
periodically, as often as monthly, to review execution quality of all 
applicable order types, compare order routing practices, policies, and 
procedures to industry standards, and maintain written documentation 
for order execution and evaluation. BEC members may consist of senior 
trading representatives along with members of the broker-dealer's 
compliance, legal, and operational risk departments.
3. Description of Markets and Broker-Dealer Order Handling and 
Execution Practices
    Broker-dealers execute orders from their customers in a variety of 
ways, which may depend on the nature of the market, broker-dealer, or 
customer, or characteristics of the order such as size. Some broker-
dealers may act on a purely agency basis by routing orders to the best 
available quotes set by other broker-dealers or third-party market 
makers on exchanges and ATSs or at other OTC market centers, some 
broker-dealers may choose to execute the orders on a principal basis, 
and some may do both.
    Certain conflicts of interest may arise in the handling and 
execution of customer orders that exacerbate the principal-agent 
problem between the customer and broker-dealer. Common types of 
conflicts of interest that may exacerbate the principal-agent problem 
can involve: (1) a broker-dealer routing a customer order in exchange 
for a payment or a lower fee; or (2) a broker-dealer seeking to 
transact in a principal capacity with a customer order, which involves 
trading off the spread the broker-dealer can earn on the transaction vs 
the price the customer must pay; or (3) a broker-dealer routing a 
customer order to a trading venue or broker-dealer with which it may 
have a relationship, such as a broker-dealer routing a customer order 
to an affiliated ATS.\332\ However, SRO rules address the extent to 
which certain specific situations presenting conflicts of interest are 
prohibited from influencing a broker-dealer's duty of best execution. 
For example FINRA rules and guidance (e.g., FINRA Regulatory Notice 21-
23) require that ``member firms may not let payment for order flow 
interfere with their duty of best execution.'' \333\
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    \332\ See supra Section III.A.
    \333\ See supra Section III.A.2.
---------------------------------------------------------------------------

    The below sections discuss in more detail the trading environment 
and broker-dealer order handling and execution practices in different 
asset classes. They also discuss the role that certain conflicts of 
interest such as PFOF and principal trading play in the handling and 
execution of retail orders in different asset classes.
(a) NMS Securities
i. NMS Stocks
a. NMS Stocks Trading Services Overview
    Market centers compete to attract order flow in NMS stocks. At the 
same time, market participants compete to provide liquidity in NMS 
stocks within market centers. As shown in Table 1, in Q1 of 2022, NMS 
stocks were traded on 16 registered securities exchanges \334\

[[Page 5489]]

and off-exchange at 32 NMS Stock ATSs and at over 230 other FINRA 
members, including OTC market makers.\335\ OTC market markers include 6 
wholesalers that internalize the majority of individual investor 
marketable orders.\336\ These numerous market centers match traders 
with counterparties, provide a framework for price negotiation and/or 
provide liquidity to those seeking to trade.
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    \334\ Most of these 16 registered securities exchanges are owned 
by three exchange families. Currently, CBOE Global Markets owns: 
Cboe BYX Exchange, Inc., Cboe BZX Exchange, Inc. (``Cboe BZX''), 
Cboe EDGA Exchange, Inc., and Cboe EDGX Exchange, Inc. (``Cboe 
EDGX''); the Nasdaq Inc. owns: Nasdaq BX, Inc. (``Nasdaq BX''), 
Nasdaq PHLX LLC (``Nasdaq Phlx''), and The Nasdaq Stock Market LLC 
(``Nasdaq''); and the Intercontinental Exchange Inc. owns: NYSE, 
NYSE American LLC (``NYSE American''), NYSE Arca, Inc. (``NYSE 
Arca''), NYSE Chicago, Inc., and NYSE National, Inc. Other 
registered securities exchanges that trade NMS stocks and do not 
belong to one of these exchange groups include: Investors Exchange 
LLC (``IEX''), Long-Term Stock Exchange, Inc., MEMX LLC, and MIAX 
Pearl, LLC (``MIAX PEARL''). Among these exchanges, eight trade only 
equities and eight trade both equities and options. The Commission 
has approved BOX Exchange LLC (``BOX'') to trade certain equity 
securities that would be NMS stocks on a facility, BSTX LLC 
(``BSTX''), but BSTX is not yet operational. See Securities Exchange 
Act Release Nos. 94092 (Jan. 27, 2022), 87 FR 5881 (Feb. 2, 2022) 
(SR-BOX-2021-06) (approving the trading of equity securities on the 
exchange through a facility of the exchange known as BSTX); 94278 
(Feb. 17, 2022), 87 FR 10401 (Feb. 24, 2022) (SR-BOX-2021-14) 
(approving the establishment of BSTX as a facility of BOX). BSTX 
cannot commence operations as a facility of BOX until, among other 
things, the BSTX Third Amended and Restated Limited Liability 
Company Agreement approved by the Commission as rules of BOX is 
adopted. Id. at 10407.
    \335\ See Concept Release on Equity Market Structure, Exchange 
Act Release No. 61358 (Jan. 14, 2010), 75 FR 3593 (Jan. 21, 2010) at 
3598-3560 (for a discussion of the types of trading centers); see 
also Form ATS-N Filings and Information, available at https://www.sec.gov/divisions/marketreg/form-ats-n-filings.htm. Some 
academic studies attribute the fragmented nature of this market, in 
part, to certain provisions of Regulation NMS. See, e.g., Maureen 
O'Hara & Mao Ye, Is Market Fragmentation Harming Market Quality?, 
100 J. Fin. 459 (2011); Amy Kwan, et. al., Is Market Fragmentation 
Harming Market Quality?, 115 J. Fin. 330 (2015).
    \336\ The six OTC market makers that are classified as 
wholesalers for purposes of this release are the OTC market makers 
to which the majority of marketable orders originating from retail 
brokers were routed as identified from information from retail 
broker Rule 606(a)(1) reports from Q1 2022. Rule 606(a)(1) requires 
broker-dealers to produce quarterly public reports containing 
information about the venues to which the broker-dealer regularly 
routed non-directed orders for execution, including any payment 
relationship between the broker-dealer and the venue, such as any 
PFOF arrangements. See 17 CFR 242.606(a)(1).
---------------------------------------------------------------------------

    Market centers' primary customers are broker-dealers that route 
their own orders or their customers' orders for execution. Market 
centers may compete with each other for these broker-dealers' order 
flow on a number of dimensions, including execution quality. They also 
may innovate to differentiate themselves from other trading centers to 
attract more order flow. While registered exchanges cater to a broader 
spectrum of investors, ATSs and OTC market makers, including 
wholesalers, tend to focus more on providing trading services to either 
institutional or individual investor orders.

                    Table 1--Q1 2022 NMS Stock Share Volume Percentage by Market Center Type
----------------------------------------------------------------------------------------------------------------
                                                                                  Percentage  of  Percentage  of
                       Market center type                           Venue count    total  share    off- exchange
                                                                                      volume       share volume
----------------------------------------------------------------------------------------------------------------
Exchanges.......................................................              16            59.7  ..............
NMS Stock ATSs..................................................              32            10.2            25.2
Wholesalers \a\.................................................               6            23.9            59.4
Other FINRA Members.............................................             232             6.3            15.6
----------------------------------------------------------------------------------------------------------------
This table reports for Q1 2022 the percentage of NMS stock share volume executed by market center type and the
  percentage of off-exchange share volume by market centers type. Venue Count lists the number of venues in each
  market center category. Percentage of Total Share Volume is the percentage of all NMS stock share volume (on-
  exchange plus off-exchange) executed by the type of market center. Percentage of off-Exchange Share Volume is
  the percentage of off-exchange share volume executed by the type of market center. Exchange share volume and
  total market volume are based on CBOE Market Volume Data on monthly share volume executed on each exchange and
  share volume reported in FINRA Trade Reporting Facilities (TRFs).\b\ NMS Stock ATSs, wholesalers and Other
  FINRA members share volume are based on monthly FINRA OTC Transparency data on aggregated NMS stock trading
  volume executed on individual ATSs and over-the-counter at Non-ATS FINRA members.\c\ The Percentage of Off-
  Exchange Share Volume is calculated by dividing the NMS Stock ATS, wholesaler and FINRA member share volume
  from the FINRA Transparency Data by the total TRF share volume reported in CBOE Market Volume Data.
  Percentages do not add up to 100 percent due to rounding.
\a\ See supra note 336 for details regarding how FINRA member OTC market makers are classified as wholesalers
  for purposes of this release.
\b\ Cboe, U.S. Historical Market Volume Data, available at https://cboe.com/us/equities/market_statistics/historical_market_volume/. Trade Reporting Facilities (TRFs) are facilities through which FINRA members report
  off-exchange transactions in NMS stocks, as defined in SEC Rule 600(b)(47) of Regulation NMS. See generally
  FINRA, Trade Reporting Facility, available at https://www.finra.org/filing-reporting/trade-reporting-facility-trf trf.
\c\ FINRA OTC (Non-ATS) Transparency Data, Monthly Statistics, available at https://otctransparency.finra.org/otctransparency/OtcData otctransparency/OtcData; FINRA OTC (ATS Block)Transparency Data, Monthly Statistics, available at https://otctransparency.finra.org/otctransparency/AtsBlocksDownload. The FINRA OTC (Non-ATS) Transparency Data may not
  contain all share volume transacted by a wholesaler or FINRA member because FINRA aggregates ``[s]ecurity-
  specific information for firms with `de minimis' volume outside of an ATS'' and ``publishe[s it] on a non-
  attributed basis.'' FINRA, OTC (ATS & Non-ATS) Transparency, Overview, available athttps://www.finra.org/
  filing-reporting/otc-transparency.

    Table 1 displays NMS stock share volume percentage by market center 
type for Q1 2022. Exchanges execute approximately 60% of total share 
volume in NMS stocks, while off-exchange market centers execute 
approximately 40%. The majority of off-exchange share volume is 
executed by wholesalers, who execute almost one quarter of total share 
volume (23.9%) \337\ and about 60% of off-exchange share volume.\338\ 
NMS Stock ATSs execute approximately 10% of total NMS stock share 
volume and 25% of off-exchange share volume. Other FINRA members, 
besides wholesalers and ATSs, execute approximately 15% of off-exchange 
share volume. Wholesalers and other OTC market makers also operate 
single dealer platforms (``SDPs'') where they operate as dealers to 
internalize marketable institutional orders.\339\ One study found that 
SDPs accounted for approximately 10% of off-exchange

[[Page 5490]]

trading volume in Q1 2022.\340\ Exchanges (via their rules) and ATSs 
determine how orders compete with each other, wherein liquidity 
suppliers set prices and wait for execution at their prices by 
liquidity demanders. This interaction between liquidity providers and 
demanders encompasses order-by-order competition. Unlike exchanges, for 
which each exchange's rules determine competition in a non-
discretionary fashion, wholesalers execute or route orders in a 
discretionary fashion.\341\ While some orders may be routed to a 
central limit order book against which institutional investors may 
execute (on the discretion of the wholesaler), institutional investors 
generally consider order flow routed to a wholesaler to be 
``inaccessible.'' \342\
---------------------------------------------------------------------------

    \337\ Of the six wholesalers identified in Q1 2022, two 
accounted for approximately 66% of wholesalers' total executed share 
volume of NMS stocks. This result suggests that just two wholesalers 
account for a very large percentage of order flow coming from 
individual investors. One study finds that the concentration of 
wholesaler internalization, as measured by the Herfindahl-Hirschman 
Index (HHI) of share volume executed across wholesalers, has 
increased from 2018 to 2021. See Edwin Hu & Dermot Murphy, 
Competition for Retail Order Flow and Market Quality (Working paper, 
June 2022), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4070056 (retrieved from Elsevier database).
    \338\ The share volume reported for wholesalers in FINRA OTC 
Transparency Data includes both individual investor orders executed 
by wholesalers in a principal capacity, as well as other orders 
executed by wholesalers in a principal capacity, such as 
institutional orders executed on their single dealer platforms. It 
does not include share volume that they executed in a riskless 
principal capacity or share volume that was routed and executed at 
another market center.
    \339\ Wholesalers and OTC market makers can execute orders 
itself or instead further route the order to other venues. An SDP 
always acts as the counterparty to any trade that occurs on the SDP. 
See, e.g., FINRA, Investor Insights, Where Do Stocks Trade? (Dec. 3, 
2021), available at https://www.finra.org/investors/insights/where-do-stocks-trade .
    \340\ See Rosenblatt Securities, US Equity Trading Venue Guide 
(May 24, 2022), available at https://www.rblt.com/market-reports/rosenblatts-2021-us-equity-trading-venue-guide-2. SDP trading volume 
would be included in the share volume percentage estimates for 
wholesalers and other FINRA members in Table 1.
    \341\ A study estimates that the volume of individual investor 
orders executed by wholesalers accounted for approximately 16% to 
17% of consolidated share volume during Q1 2022. See Rosenblatt 
Securities, An Update on Retail Market Share in US Equities (June 
24, 2022), available at https://www.rblt.com/market-reports/trading-talk-an-update-on-retail-market-share-in-us-equities. However, 
wholesalers are not completely focused on individual investor order 
flow and some do offer services to institutional order flow.
    \342\ See, e.g., Jennifer Hadiaris, Cowen Market Structure: 
Retail Trading -- What's going on, what may change, and what can you 
do about it?, Insights (Mar. 23, 2021), available at https://www.cowen.com/insights/retail-trading-whats-going-on-what-may-change-and-what-can-institutional-traders-do-about-it/ (``Market 
makers print most of these shares internally at their firm, so they 
trade off-exchange. One way we have for isolating retail volume is 
to look at the share of volume that trades off-exchange, but not in 
a dark pool. We refer to this as `inaccessible liquidity.' This is 
because most institutional orders--whether they are executed via 
algos directly or by high touch desks--primarily go to exchanges and 
dark pools.'').
---------------------------------------------------------------------------

    As a proxy for expected execution quality, quoted prices are a 
dimension on which exchanges compete to attract order flow. 
Specifically, exchanges are required to post the best bid and ask 
prices available on the exchange at that time \343\ and broker-dealers 
can observe those prices and choose to route orders to the exchange 
posting the best prices at a given point in time. However, others who 
provide trading services, such as ATSs and OTC market makers, do not 
compete on this dimension.\344\ In other words, wholesalers generally 
do not compete for order flow by posting competitive prices the way 
exchanges do. They do not display or otherwise advertise the prices at 
which they are willing to internalize individual investor orders at a 
given point in time. This suggests that wholesalers attract order flow 
by offering retail brokers more than just competitive price 
improvement.\345\ In particular, wholesalers bundle their market access 
services with execution services, thereby fully vertically integrating 
order handling and execution services for their retail broker 
customers.
---------------------------------------------------------------------------

    \343\ See Rule 602 of Regulation NMS.
    \344\ ATSs typically compete for institutional order flow by 
offering innovative trading features such as distinct trading 
protocols and segmentation options. They may also compete on fees. 
In addition, they could include their ATS access in the broader set 
of bundled services that the broker-dealer operator of the ATS 
offers to its institutional investors.
    \345\ Wholesalers do not compete by quoting price at a given 
point in time, but instead generally attract order flow by offering 
prices that are on average better than displayed prices.
---------------------------------------------------------------------------

b. Rules Addressing Consolidated Market Data
    In 2020, the Commission adopted a new rule and amended existing 
rules to establish a new infrastructure for consolidated market data 
(``MDI Rules''),\346\ and the regulatory baseline for NMS stocks 
includes these changes to the current arrangements for consolidated 
market data. However, as discussed in more detail below, the MDI Rules 
have not been implemented, and so they have not yet affected market 
practice. As a result, the data used to measure the baseline below 
reflects the regulatory structure in place for consolidated market data 
prior to the implementation of the MDI Rules. Accordingly, this section 
first will briefly summarize the regulatory structure for consolidated 
market data prior to the implementation of the MDI Rules. It then will 
discuss the current status of the implementation of the MDI Rules and 
provide an assessment of the potential effects that the implementation 
of the MDI Rules could have on the baseline estimations.
---------------------------------------------------------------------------

    \346\ See supra note 38, discussing MDI Adopting Release.
---------------------------------------------------------------------------

Regulatory Structure for Consolidated Market Data Prior to the MDI 
Rules
    Consolidated market data are made widely available to investors 
through the national market system, a system set forth by Congress in 
section 11A of the Exchange Act \347\ and facilitated by the Commission 
in Regulation NMS.\348\ Market data are collected by exclusive SIPs, 
who consolidate that information and disseminate an NBBO and last sale 
information. For quotation information, only the 16 exchanges that 
currently trade NMS stocks provide quotation information to the SIPs 
for dissemination in consolidated market data.\349\ FINRA has the only 
SRO display-only facility (the ADF). No broker-dealer, however, 
currently uses it to display quotations in NMS stocks in consolidated 
market data. Disseminated quotation information includes each 
exchange's current highest bid and lowest offer and the shares 
available at those prices, as well as the NBBO.
---------------------------------------------------------------------------

    \347\ See supra note 13.
    \348\ 17 CFR 242.600 through 242.614.
    \349\ See supra note 334.
---------------------------------------------------------------------------

    For transaction information, currently all of the national 
securities exchanges that trade NMS stocks and FINRA provide real-time 
transaction information to the SIPs for dissemination in consolidated 
market data. Such information includes the symbol, price, size, and 
exchange of the transaction, including odd-lot transactions.
Unimplemented Market Data Infrastructure Rules
    Among other things, the unimplemented MDI Rules update and expand 
the content of consolidated market data to include: (1) certain odd-lot 
information; \350\ (2) information about certain orders that are 
outside of an exchange's best bid and best offer (i.e., certain depth 
of book data); \351\ and (3) information about orders that are 
participating in opening, closing, and other auctions.\352\ The MDI 
Rules also introduced a four-tiered definition of round lot that is 
tied to a stock's average closing price during the previous month.\353\ 
For stocks with prices greater than $250, a round lot is defined as 
consisting of between 1 and 40 shares, depending on the tier.\354\ The 
MDI Rules also introduce a decentralized consolidation model under 
which competing consolidators, rather than the existing exclusive SIPs, 
will collect, consolidate, and disseminate certain NMS 
information.\355\
---------------------------------------------------------------------------

    \350\ See 17 CFR 242.600(b)(59); MDI Adopting Release, supra 
note 38, 86 FR at 18613. The Commission outlined a phased transition 
plan for the implementation of the MDI Rules, including the 
implementation of odd-lot order information. See MDI Adopting 
Release, 86 FR at 18698-701.
    \351\ See MDI Adopting Release, supra note 38, 86 FR 18596.
    \352\ See id. at 18630.
    \353\ See id. at 18617.
    \354\ See id. The Commission adopted a four-tiered definition of 
round lot: 100 shares for stocks priced $250.00 or less per share, 
40 shares for stocks priced $250.01 to $1,000.00 per share, 10 
shares for stocks priced $1,000.01 to $10,000.00 per share, and 1 
share for stocks priced $10,000.01 or more per share.
    \355\ See id. at 18637.
---------------------------------------------------------------------------

    In the MDI Adopting Release, the Commission established a 
transition period for implementation of the MDI Rules.\356\ The ``first 
key milestone'' for

[[Page 5491]]

the transition period was to be an amendment of the effective national 
market system plan(s), which ``must include the fees proposed by the 
plan(s) for data underlying'' consolidated market data (``Proposed Fee 
Amendment'').\357\ The compliance date for the MDI Rules was set with 
reference to the date that the Commission approved the Proposed Fee 
Amendment.\358\ The end of the transition period was to be at least two 
years after the date the Commission approved the Proposed Fee 
Amendment.\359\
---------------------------------------------------------------------------

    \356\ Id. at 18698-18701.
    \357\ Id. at 18699.
    \358\ See, e.g., id. at 18700 n. 355 (compliance date for 
amendment to Rule 603(b) to be 180 calendar days from the date of 
the Commission's approval of the amendments to the effective 
national market system plan(s)).
    \359\ Id. at 18700-18701 (specifying consecutive periods of 90 
days, 90 days, 90 days, 180 days, 90 days, a period for filing and 
approval of another national market system plan amendment to 
effectuate the cessation of the operations of the SIPs (with a 300-
day maximum time for Commission action after filing to approve or 
disapprove the filing).
---------------------------------------------------------------------------

    The MDI Adopting Release did not specify a process for continuing 
the transition period if the Commission disapproved the Proposed Fee 
Amendment. On September 21, 2022, the Commission disapproved the 
Proposed Fee Amendment, because the Participants had not demonstrated 
that the proposed fees were fair, reasonable and not unreasonably 
discriminatory.\360\ Accordingly, there currently is no date to begin 
the at-least-two-year period for implementation of the MDI Rules, and 
there is no date that can be reasonably estimated for the 
implementation of the MDI Rules to be completed.
---------------------------------------------------------------------------

    \360\ Securities Exchange Act Release No. 95851 (Sept. 21, 2022) 
(Order Disapproving the Twenty-Fifth Charges Amendment to the Second 
Restatement of the CTA Plan and Sixteenth Charges Amendment to the 
Restated CQ Plan).
---------------------------------------------------------------------------

    Given that the MDI Rules have not yet been implemented, they have 
not affected market practice and therefore data that would be required 
for a comprehensive quantitative analysis of a baseline that includes 
the effects of the MDI Rules is not available. It is possible that the 
baseline (and therefore the economic effects relative to the baseline) 
could be different once the MDI Rules are implemented. The following 
discussion reflects the Commission's assessment of the anticipated 
economic effects of the MDI Rules as described in the MDI Adopting 
Release.\361\
---------------------------------------------------------------------------

    \361\ See MDI Adopting Release, supra note 38, 86 FR 18741-
18799.
---------------------------------------------------------------------------

    The Commission anticipated that the new round lot definition will 
result in narrower NBBO spreads for most stocks with prices greater 
than $250 because, for these stocks, fewer odd-lot shares will need to 
be aggregated together (possibly across multiple price levels) \362\ to 
form a round lot and qualify for the NBBO.\363\ The reduction in 
spreads will be greater in higher-priced stocks because the definition 
of a round lot for these stocks will include fewer shares, such that 
even fewer odd-lot shares will need to be aggregated together.\364\ 
This could cause statistics that are measured against the NBBO to 
change because they will be measured against the new, narrower NBBO. 
For example, execution quality statistics on price improvement for 
higher-priced stocks may show a reduction in the number of shares of 
marketable orders that received price improvement because price 
improvement will be measured against a narrower NBBO. In addition, the 
Commission anticipated that the NBBO midpoint in stocks priced higher 
than $250 could be different under the MDI Rules than it otherwise 
would be, resulting in changes in the estimates for statistics 
calculated using the NBBO midpoint, such as effective spreads. In 
particular, at times when bid odd-lot quotations exist within the 
current NBBO but no odd-lot offer quotations exist (and vice versa), 
the midpoint of the NBBO resulting from the rule will be higher than 
the current NBBO midpoint.\365\ More broadly, the Commission 
anticipated that the adopted rules will have these effects whenever the 
new round lot bids do not exactly balance the new round lot offers. 
However the Commission stated that it does not know to what extent or 
direction such odd-lot imbalances in higher priced stocks currently 
exist, so it is uncertain of the extent or direction of the 
change.\366\
---------------------------------------------------------------------------

    \362\ The calculation of the NBBO includes odd-lots that, when 
aggregated, are equal to or greater than a round lot. As stated in 
CFR 242.600(b)(21)(ii), ``such aggregation shall occur across 
multiple prices and shall be disseminated at the least aggressive 
price of all such aggregated odd-lots.'' For example, if there is 
one 50-share bid at $25.10, one 50-share bid at $25.09, and two 50-
share bids at $25.08, the odd-lot aggregation method would show a 
protected 100-share bid at $25.09.
    \363\ For example, if there is one 20-share bid at $250.10, one 
20-share bid at $250.09, and two 50-share bids at $250.08, prior to 
MDI the NBB would be $250.08, as even aggregated together the odd 
lot volume would not add up to at least a round lot. After MDI, the 
NBB would be $25.09, as the odd-lot aggregation method would show a 
protected 40-share round lot bid at $25.09.
    \364\ See supra note 354. An analysis in the MDI Adopting 
Release showed that the new round lot definition caused a quote to 
be displayed that improved on the current round lot quote 26.6% of 
the time for stocks with prices between $250.01 and $1,000, and 
47.7% of the time for stocks with prices between $1,000.01 and 
$10,000. See MDI Adopting Release, supra note 38, 86 FR 18743.
    \365\ For example, if the NBB is $260 and the NBO is $260.10, 
the NBBO midpoint is $260.05. Under the adopted rules a 40 share buy 
quotation at $260.02 will increase the NBBO midpoint to $260.06. 
Using this new midpoint, calculations of effective spread will be 
lower for buy orders, but will be higher for sell orders.
    \366\ See MDI Adopting Release, 86 FR 18750.
---------------------------------------------------------------------------

    The Commission also anticipated that the MDI Rules could result in 
a smaller number of shares at the NBBO for most stocks in higher-priced 
round lot tiers.\367\ To the extent that this occurs, there could be an 
increase in the frequency with which marketable orders must walk the 
book to execute. This would affect statistics that are calculated using 
consolidated depth information, such as measures meant to capture 
information about whether orders received an execution of more than the 
displayed size at the quote, i.e., ``size improvement.''
---------------------------------------------------------------------------

    \367\ However, this effect will depend on how market 
participants adjust their order submissions. See id. at 18746, for 
further discussion.
---------------------------------------------------------------------------

    The MDI Rules may also result in a higher number of odd-lot trades, 
as the inclusion of odd-lot quotes that may be priced better than the 
current NBBO in consolidated market data may attract more trading 
interest from market participants that previously did not have access 
to this information.\368\ However, the magnitude of this effect depends 
on the extent to which market participants who rely solely on SIP data 
and lack information on odd-lot quotes choose to receive the odd-lot 
information and trade on it. The Commission states in the MDI Adopting 
Release that it believes it is not possible to observe this willingness 
to trade with existing market data.\369\
---------------------------------------------------------------------------

    \368\ See id. at 18754.
    \369\ See id.
---------------------------------------------------------------------------

    The MDI Rules may have implications for broker-dealers' order 
routing practices. For those market participants that rely solely on 
SIP data for their routing decisions and that choose to receive the 
expanded set of consolidated market data, the Commission anticipated 
that the additional information contained in consolidated market data 
will allow them to make more informed order routing decisions. This in 
turn would help facilitate best execution, which would reduce 
transaction costs and increase execution quality.\370\
---------------------------------------------------------------------------

    \370\ See id. at 18725.
---------------------------------------------------------------------------

    The MDI Rules may also result in differences in the baseline 
competitive standing among different trading venues, for several 
reasons. First, for stocks with prices greater than $250, the 
Commission anticipated that the new definition of round lots may affect 
order flows as market participants who rely on consolidated data will 
be aware of

[[Page 5492]]

quotes at better prices that are currently in odd-lot sizes, and these 
may not be on the same trading venues as the one that has the best 100 
share quote.\371\ Similarly, it anticipated that adding information on 
odd-lot quotes priced at or better than the NBBO to expanded core data 
may cause changes to order flow as market participants take advantage 
of newly visible quotes.\372\ However, the Commission stated that it 
was uncertain about the magnitude of both of these effects.\373\ To the 
extent that it occurs, a change in the flow of orders across trading 
venues may result in differences in the competitive baseline in the 
market for trading services.
---------------------------------------------------------------------------

    \371\ See id. at 18744.
    \372\ See id. at 18754.
    \373\ See id. at 18745, 18754.
---------------------------------------------------------------------------

    Second, national securities exchanges and ATSs have a number of 
order types that are based on the NBBO, and so the Commission 
anticipated that the changes in the NBBO caused by the new round lot 
definitions may affect how these order types perform and could also 
affect other orders with which they interact.\374\ The Commission 
stated that these interactions may affect relative order execution 
quality among different trading platforms, which may in turn affect the 
competitive standing among different trading venues, with trading 
venues that experience an improvement/decline in execution quality 
attracting/losing order flow.\375\ However, the Commission stated that 
it was uncertain of the magnitude of these effects.\376\
---------------------------------------------------------------------------

    \374\ See id. at 18748.
    \375\ See id.
    \376\ See id.
---------------------------------------------------------------------------

    Third, the Commission anticipated that, as the NBBO narrows for 
securities in the smaller round lot tiers, it may become more difficult 
for the retail execution business of wholesalers to provide price 
improvement and other execution quality metrics at levels similar to 
those provided under a 100 share round lot definition.\377\ To the 
extent that wholesalers are held to the same price improvement 
standards by retail brokers in a narrower spread environment, the 
wholesalers' profits from executing individual investor orders might 
decline,\378\ and to make up for lower revenue per order filled in a 
narrower spread environment, wholesalers may respond by changing how 
they conduct their business in a way that may affect retail brokers. 
However, the Commission stated that it was uncertain as to how 
wholesalers may respond to the change in the round lot definition, and, 
in turn, how retail brokers may respond to those changes, and so was 
uncertain as to the extent of these effects.\379\ If wholesalers do 
change how they conduct business, it may impact wholesalers' 
competitive standing in terms of the execution quality offered, 
particularly to individual investor orders.
---------------------------------------------------------------------------

    \377\ See id. at 18747.
    \378\ Individual investor orders typically feature lower adverse 
selection than other types of orders, such as institutional orders. 
It is generally more profitable for any liquidity provider, 
including wholesalers, to execute against orders with lower adverse 
selection risk. See, e.g., David Easley, Nicholas M. Kiefer & 
Maureen O'Hara, Cream-skimming or profit-sharing? The curious role 
of purchased order flow, 51 J. Fin. 811 (1996).
    \379\ See id. at 18748.
---------------------------------------------------------------------------

    Where implementation of the above-described MDI Rules may affect 
certain numbers in the baseline, the description of the baseline below 
notes those effects.
c. Market Access
    Some broker-dealers that connect directly to one or more exchanges 
and other trading centers offer order routing to smaller broker-dealers 
that may not directly connect to exchanges. This is, in part, driven by 
the requirement that in order to directly route orders to an exchange, 
broker-dealers need to be a member of that exchange.\380\ It is also 
driven by economies of scale in being able to distribute high fixed 
costs related to exchange connectivity and proprietary market data 
feeds.\381\ Most large broker-dealers connect to multiple 
exchanges.\382\ These broker-dealers may use their connections to 
provide order-routing and execution services, such as access to smart 
order routers (SORs), to smaller broker dealers who may find direct 
connections to exchanges prohibitively expensive.\383\ To this end, 
such smaller broker-dealers access exchanges through intermediaries, 
i.e., larger broker-dealers, allowing these intermediaries to compete 
with exchanges in the trade execution and order-routing markets.\384\ 
These intermediaries often compete on both the quality of their order 
execution and the fees they charge.\385\
---------------------------------------------------------------------------

    \380\ Membership on an exchange also gives the broker-dealer 
access to exchange-provided order routers that re-route orders to 
other exchanges at a per-order fee.
    \381\ Broker-dealers may choose to incur these costs in order to 
gain faster access through direct exchange connectivity as well as 
proprietary exchange data feeds, both of which may improve order 
handling and execution capabilities, and thus their competitive 
position. See Section V.B.3.(e) of Market Data Infrastructure 
Adopting Release (for discussions on broker-dealer competitive 
trading strategies).
    \382\ See MDI Adopting Release, supra note 38, at 86 FR 18740 
(for analysis indicating that 50 firms connected to all but one of 
the exchanges in a sample of FINRA audit trail data from December 
2016), available at https://www.govinfo.gov/content/pkg/FR-2021-04-09/pdf/2020-28370.pdf.
    \383\ The number of broker-dealers providing access is thus 
limited due to the expenses of being an exchange member and ATS 
subscriber. In addition, membership on an exchange also gives the 
broker-dealer access to exchange-provided order routers that re-
route orders to other exchanges at a per-order fee. Thus, membership 
on one exchange can effectively provide access, though not directly, 
to all exchanges.
    \384\ Providing market access can mean rerouting customer orders 
and it can also involve sponsoring access for the broker to send 
customer orders directly to a market center.
    \385\ The types of fees charged by routing brokers can vary, 
some charge a per-order/share fee or a fee that is part of other 
bundled services they may offer.
---------------------------------------------------------------------------

d. Retail Order Handling in NMS Stocks
    The Commission estimates that in 2021 approximately 1,037 retail 
brokers originated orders from retail investors in NMS stocks.\386\ 
Retail brokers route most of their customers' marketable order flow to 
wholesalers.\387\ Wholesalers do not typically directly charge retail 
brokers for their order routing and execution services. In fact, they 
may pay some retail brokers for the opportunity to handle their order 
flow with PFOF. Wholesalers' vertical integration of routing and 
execution services for the orders of individual investors provides them 
flexibility with regard to their handling of order flow. They utilize 
sophisticated algorithmic trading technology to deliver their 
services.\388\ In particular, wholesalers determine which orders to 
internalize (i.e., execute in a principal capacity) and which to 
execute in a riskless principal or agency capacity. Commission analysis 
indicates that wholesalers

[[Page 5493]]

internalize over 90% of the executed dollar volume from individual 
investor marketable orders that are routed to them and executed.\389\
---------------------------------------------------------------------------

    \386\ This number is estimated using CAT data for broker-dealers 
that originated an order from an ``Individual Customer'' CAT account 
type in 2021. See infra note 422 for more info CAT account types.
    \387\ Commission analysis of broker-dealer Rule 606 report order 
routing data in infra Table 3 indicates that retail brokers route 
over 90% of their marketable orders to wholesalers.
    \388\ Wholesalers, similar to other market makers, must 
establish connections with the numerous venues in which they wish to 
operate and provide liquidity. They also must design smart order 
routers that can locate and provide liquidity in real time, as well 
as maintain fast data processing capabilities that enable them to 
respond to market conditions while abiding by the relevant trade 
execution regulations. Wholesalers also face the costs associated 
with price risk. As wholesalers trade against market participants, 
they take positions at the opposite side, accumulating inventory. 
Holding inventory exposes wholesaler profits to inventory (price) 
risk, where the value of inventory, and hence, that of the 
wholesaler's holdings, may fluctuate as security prices vary. 
Scaling up the size of the business to ensure steady incoming flow 
from opposite sides of the markets is a common strategy pursued by 
wholesalers. This strategy enables them to execute buy and sell 
transactions, offsetting order flow from opposite sides, reducing 
the possibility of accumulating prolonged, unwanted inventory. 
However, among other costs, scaling up requires more comprehensive, 
efficient connectivity networks, and adds to the costs of 
establishing and maintaining such networks.
    \389\ See analysis in infra Table 7.
---------------------------------------------------------------------------

    One aspect of the wholesaler business model is the segmentation of 
the order flow of individual investors, which typically have lower 
adverse selection risk than the orders of other types of market 
participants.\390\ Wholesalers are market makers that can identify 
orders with low adverse selection risk.\391\ Through segmentation, 
wholesalers typically internalize marketable orders with lower adverse 
selection risk and generally execute them at prices better than the 
current NBBO, i.e., because of segmentation, wholesalers are typically 
able to execute the marketable orders of individual investors at better 
prices than they would receive if they were routed to an exchange. An 
analysis of marketable NMS stock orders presented below indicates that 
the orders that wholesalers internalize present lower adverse selection 
risk and receive higher execution quality relative to marketable orders 
wholesalers receive and execute in a riskless principal or agency 
capacity.\392\ Additional results \393\ show that, relative to orders 
executed on exchanges, orders internalized by wholesalers are 
associated with lower price impacts (i.e., lower adverse selection 
risk),\394\ lower effective half-spreads (i.e., higher price 
improvement),\395\ and higher realized half-spreads (i.e., higher 
potential profitability).\396\ Academic studies have also found that 
retail orders in NMS stocks benefit from being segmented and 
internalized by wholesalers, because wholesalers can offer the 
segmented retail orders more price improvement due to their lower 
adverse selection risk.\397\
---------------------------------------------------------------------------

    \390\ Wholesalers and other liquidity providers face adverse 
selection risk when they accumulate inventory, for example, by 
providing liquidity to more informed traders, because of the risk of 
market prices moving away from market makers before they are able to 
unwind their positions. Wholesalers and other market makers are 
usually not privy to the motives or information of the investors 
they are trading with. As such, should the liquidity provider trade 
with an investor possessing short-lived price information about the 
security price, it is exposing its inventory to adverse selection 
risk. Hence, liquidity providers normally choose their trading 
strategies to minimize their interaction with order flow with 
increased adverse selection risk. Wholesalers do this by attracting 
marketable orders of individual investors, known to be the order 
flow with the lowest adverse selection risk. Pursuing this strategy 
also requires scaling up the part of the business that interacts 
with retail order flow.
    \391\ See infra Table 7 and corresponding discussion. Adverse 
selection is based on various characteristics of the order, 
including the identity of the originating broker.
    \392\ See analysis in infra Table 7.
    \393\ See infra Table 5 and Table 6 for a comparison of exchange 
and wholesaler execution quality.
    \394\ ``Price impact'' is the extent to which the NBBO midpoint 
moves against the liquidity provider for a marketable order in a 
short time period after the order execution. For Rule 605 reporting, 
the time period is five minutes after the time of order execution. 
For the analyses of CAT data provided later in this section, the 
time period is one minute after the time of order execution, which 
was chosen to reflect the increase in trading speed in the years 
since Rule 605 was adopted. By measuring the difference between the 
transaction price and the prevailing market price for some fixed 
period of time after the transaction (e.g., one minute), price 
impact measures the extent of adverse selection costs faced by a 
liquidity provider. For example, if a liquidity provider provides 
liquidity by buying shares from a trader who wants to sell, thereby 
accumulating a positive inventory position, if the liquidity 
provider wants to unwind this inventory position by selling shares 
in the market, it will incur a loss if the price has fallen in the 
meantime. In this case, the price impact measure will be positive, 
reflecting the liquidity provider's exposure to adverse selection 
costs.
    \395\ The effective half-spread is calculated by comparing the 
trade execution price to an estimate of the stock's value (i.e., the 
midpoint of the prevailing NBBO at the time of order receipt) and 
thus captures how much more than the stock's estimated value a 
trader has to pay for the immediate execution of their order. The 
effective spread will be smaller (or less positive) when it is 
closer to the NBBO midpoint, reflecting the order receiving a 
greater amount of price improvement. See, e.g., Bjorn 
Hagstr[ouml]mer, Bias in the Effective Bid-Ask Spread, 142 J. Fin. 
Econ. 314 (2021). For the remainder of this analysis, we will use 
the term ``effective spread'' to refer to the ``effective half-
spread.'' See also results in Thomas Ernst & Chester S. Spatt, supra 
note 77. Rule 600(b)(8) of Regulation NMS defines ``average 
effective spread'' as the share-weighted average of effective 
spreads for order executions calculated, for buy orders, as double 
the amount of difference between the execution price and the 
midpoint of the NBB and NBO at the time of order receipt and, for 
sell orders, as double the amount of difference between the midpoint 
of the NBB and NBO at the time of order receipt and the execution 
price.
    \396\ The realized half-spread is calculated similarly to the 
effective half-spread, but, instead of using the NBBO midpoint at 
the time of order receipt, the realized spread calculation uses the 
NBBO midpoint a short time period after the execution of a 
marketable order. For Rule 605 reporting, the time period is five 
minutes after the time of order execution. For the analyses of CAT 
data provided later in this section, the time period is one minute 
after the time of order execution. The realized half-spread proxies 
for the potential profitability of trading for liquidity providers 
after accounting for the adverse selection risk (i.e., price impact) 
of the trade. See, e.g., Securities Exchange Act Release No. 43590 
(Nov. 17, 2000), 65 FR 75423-75424 (Dec. 1, 2000) (Disclosure of 
Order Execution and Routing Practices) (``The smaller the average 
realized spread, the more market prices have moved adversely to the 
market center's liquidity providers after the order was executed, 
which shrinks the spread `realized' by the liquidity providers. In 
other words, a low average realized spread indicates that the market 
center was providing liquidity even though prices were moving 
against it for reasons such as news or market volatility.''); See 
also Larry Harris, Trading and Exchanges: Market Microstructure for 
Practitioners at 286 (Oxford University Press 2003) (``Informed 
traders buy when they think that prices will rise and sell 
otherwise. If they are correct, they profit, and whoever is on the 
other side of their trade loses. When dealers trade with informed 
traders, prices tend to fall after the dealer buys and rise after 
the dealer sells. These price changes make it difficult for dealers 
to complete profitable round-trip trades. When dealers trade with 
informed traders, their realized spreads are often small or 
negative. Dealers therefore must be very careful when trading with 
traders they suspect are well informed.''). See also Joel Hasbrouck, 
Empirical Market Microstructure: The Institutions, Economics, and 
Econometrics of Securities Trading at 147 (Oxford University Press 
2007) (``The execution cost based on the pretrade bid-ask midpoint 
(BAM) is also known as the effective cost. Since 2001, the U.S. SEC 
has required U.S. equity markets to compute effective costs and make 
summary statistics available on the Web . . . The rule . . . also 
requires computation of the realized cost . . . . The difference 
between effective and realized costs is sometimes used as an 
estimate of the price impact of the trade. The realized cost can 
also be interpreted as the revenue of the dealer who sold to the 
customer . . . and then covered his position at the subsequent 
BAM.''). For the remainder of this analysis, we will use the term 
``realized spread'' to refer to the realized half-spread. Rule 
600(b)(9) of Regulation NMS generally defines ``average realized 
spread'' as the share-weighted average of realized spreads for order 
executions calculated, for buy orders, as double the amount of 
difference between the execution price and the midpoint of the NBB 
and NBO five minutes after the time of order execution and, for sell 
orders, as double the amount of difference between the midpoint of 
the NBB and NBO five minutes after the time of order execution and 
the execution price.
    \397\ See Ernst & Spatt, supra note 77 and Kothari, S.P., So, 
E., & Johnson, T. Commission Savings and Execution Quality for 
Retail Trades (Working paper, 2021). See also Adams, Kasten, & 
Kelley, Do investors save when market makers pay? Retail Execution 
costs under PFOF models (Working paper, 2021), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3975667 (retrieved from 
Elsevier database).

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

[[Page 5494]]

Segmentation and Routing of Individual Investor Orders in NMS Stocks
    Most individual investor orders are non-directed, so individual 
investor order routing choices are largely made by retail brokers. 
Specifically, retail brokers choose how to access the market in order 
to fill their individual investor customers' orders. Wholesalers are 
the dominant providers of market access for retail brokers and bundle 
their market access services with execution services.
    Retail brokers may route to wholesalers because the cost of sending 
orders to wholesalers is lower than the various alternatives available 
to their customers for market access. While some broker-dealers have 
SORs,\398\ exchange memberships, and ATS subscriptions, and are thus 
able to provide market access to retail brokers, other broker-dealers 
incur costs in handling order flow for retail brokers in the form of 
exchange access fees, ATS access fees, and administrative and 
regulatory costs such as recordkeeping and the risk management controls 
of Rule 15c3-5. While wholesalers could incur some of these marginal 
costs as well, they benefit on the margin from individual investor 
order flow because it gives them the option to internalize the most 
profitable of that order flow, i.e., the individual investor orders 
with the lowest adverse selection risk.\399\ This ability to capture, 
identify, and internalize profitable orders from individual investors 
allows wholesalers to provide market access to retail brokers at low 
explicit cost, either by providing PFOF or by not charging retail 
brokers explicitly for market access. This service of obtaining market 
access on behalf of retail brokers assists retail brokers by allowing 
them to avoid routing expenses (even in cases where the wholesaler 
further routes the order instead of internalizing) or costly liquidity 
searches, and may increase retail brokers' reliance on wholesalers 
beyond any payment they receive for routing their order flow to 
wholesalers.
---------------------------------------------------------------------------

    \398\ Individual investors and professional traders relying on 
displayed screens to access financial markets generally do not have 
access to these low-latency (algorithmic, high speed) technologies.
    \399\ See infra Table 7 and corresponding discussion.
---------------------------------------------------------------------------

    Indeed, Table 2 shows that retail brokers who accept PFOF (``PFOF 
brokers'') pay less to route their orders to wholesalers than to route 
them elsewhere.\400\ In fact, they are paid to route their order flow 
to wholesalers for every order type reported in the table. On average, 
rates paid by wholesalers for both market and marketable limit orders 
are higher than those paid by alternative venues, with wholesalers 
paying an average of 13 cents per 100 shares for market orders and 12.6 
cents for marketable limit orders across S&P 500 and non-S&P 500 stocks 
during Q1 2022. In contrast, exchanges, on average, charged PFOF 
brokers when they routed their marketable order flow to exchanges. This 
likely indicates that most of the volume that PFOF brokers sent to 
exchanges was routed to maker-taker exchanges (where fees are assessed 
on marketable orders).\401\ Furthermore, since retail brokers that do 
not accept PFOF (``non-PFOF brokers'') also incur fees when they route 
marketable orders to exchanges, they are incentivized to route their 
marketable order flow to wholesalers, who do not charge them explicit 
costs to route and execute their orders.
---------------------------------------------------------------------------

    \400\ In Table 2, average payment rates reported in Rule 606 
reports for PFOF brokers in S&P 500 stocks and non-S&P 500 stocks in 
Q1 2022 are broken down by trading venue and order type, with rates 
given in cents per 100 shares.
    \401\ Furthermore, wholesaler rates for non-marketable orders 
are more than double the rates for marketable orders, averaging 27.1 
cents per hundred shares compared to 13 cents for market orders and 
12.6 cents for marketable limit orders. Additionally, Table 2 shows 
that the average payment rates PFOF brokers receive from routing 
non-marketable limit orders to wholesalers is greater than the 
average rates they receive from routing them to exchanges. This may 
be driven by wholesalers passing through exchange rebates for these 
orders, for which they may receive higher volume-based tiering rates 
compared to retail brokers, back to broker-dealers.

            Table 2--Average Rule 606 Payment Rates for Q1 2022 to PFOF Brokers by Trading Venue Type
----------------------------------------------------------------------------------------------------------------
                                                                                       Non-
                                                   Market orders    Marketable      marketable     Other orders
                                                                   limit orders    limit orders
----------------------------------------------------------------------------------------------------------------
S&P 500.......................  Exchange........            -5.9           -23.9            30.9            20.8
                                OMM--Wholesaler.            15.2            21.8            41.1            24.1
                                Other...........             4.5            -0.6            -0.6             7.5
Non-S&P 500...................  Exchange........           -14.9           -15.3            17.9            16.5
                                OMM--Wholesaler.            12.5            11.8            24.6            10.1
                                Other...........             1.5            -3.7            -4.6             1.5
Combined......................  Exchange........           -12.4           -15.7            19.3            17.1
                                OMM--Wholesaler.            13.0            12.6            27.1            11.9
                                Other...........             1.7            -3.7            -4.5             2.0
----------------------------------------------------------------------------------------------------------------
This table shows the average payment rates (in cents per 100 shares) made from different types of trading venues
  in Q1 2022 to 14 retail PFOF brokers from wholesalers based on their Rule 606 reports. The table breaks out
  average rates from exchanges, wholesalers, and other trading venues for market orders, marketable limit
  orders, non-marketable limit orders, and other orders in S&P 500 stocks and non-S&P 500 stocks. Other venues
  include any other venue to which a retail broker routes an order other than a wholesaler or an exchange. The
  43 broker-dealers were identified from the 54 retail brokers used in the CAT retail analysis (see infra note
  422). This analysis uses the retail broker's Rule 606 report if it publishes one or the Rule 606 report of its
  clearing broker if it did not publish a Rule 606 report itself (the sample of 43 broker-dealer Rule 606
  reports include some broker-dealers that were not included in the CAT analysis because some clearing broker
  Rule 606 reports are included). Some broker-dealers reported handling orders only on a not held basis and did
  not have any Rule 606.


[[Page 5495]]

    Table 3 confirms that wholesalers dominate the business of 
providing market access for retail brokers and that PFOF is a factor in 
retail broker routing decisions.\402\ Data from Table 3 indicates that 
orders of individual investors for NMS stocks are primarily routed to 
wholesalers, although, a small fraction of individual investor orders 
are routed to exchanges and other broker-dealers providing market 
access or other market centers (i.e., ATSs), some of which may be 
affiliated with the broker that received the original order.
---------------------------------------------------------------------------

    \402\ Table 3 summarizes order routing decisions of 43 of the 
most active retail brokers about non-directed orders. Table 4 
repeats the analysis but separately summarizes routing choices for 
14 retail brokers who accept PFOF in equity markets and 29 who do 
not. Note that some brokers do not accept PFOF for orders in 
equities but do accept PFOF for orders in options. Consistent with 
Rule 606, routing statistics are aggregated together in Rule 606 
reports based on whether the stock is listed in the S&P500 index. 
Rule 606 reports collect routing and PFOF statistics based on four 
different order types for NMS stocks: (1) market orders, resulting 
in immediate execution at the best available price; (2) marketable 
limit orders, resulting in immediate execution at the best price 
that is not worse that the order's quoted limit price; (3) non-
marketable limit orders whose quoted limit price less aggressive 
than the NBBO, often preventing immediate execution; and (4) all 
other orders. See supra note 336 for a summary of the requirements 
of Rule 606(a)(1) of Regulation NMS.

       Table 3--Retail Broker Order Routing in NMS Stocks for Q1 2022, Combining PFOF and Non-PFOF Brokers
----------------------------------------------------------------------------------------------------------------
                                                                       Non-
                                      Market        Marketable      marketable         Other           Total
           Venue type                (percent)         limit           limit         (percent)       (percent)
                                                     (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
                                           Panel A: Non S&P 500 Stocks
----------------------------------------------------------------------------------------------------------------
Other...........................             6.0             4.7             3.1             1.5             3.6
Exchange........................             0.2             5.5            22.5             0.8             8.5
Wholesaler......................            93.9            89.8            74.4            97.6            87.9
                                 -------------------------------------------------------------------------------
    Total.......................            26.5            12.6            33.6            27.3           100.0
----------------------------------------------------------------------------------------------------------------
                                             Panel B: S&P 500 Stocks
----------------------------------------------------------------------------------------------------------------
Other...........................             6.6             5.9             1.8             1.7             3.6
Exchange........................             0.2             4.6            25.1             0.8             9.1
Wholesaler......................            93.3            89.6            73.1            97.5            87.3
                                 -------------------------------------------------------------------------------
    Total.......................            30.6             9.6            33.5            26.4           100.0
----------------------------------------------------------------------------------------------------------------
This table aggregates Rule 606 reports from retail brokers and shows the percentage of market orders, marketable
  limit orders, non-marketable limit orders, and other orders that retail brokers route to different types of
  venues in Q1 2022. Other venues include any other venue to which a retail broker routes an order other than a
  wholesaler or an exchange. Order type classifications are based on the order types broker-dealers are required
  to include in their Rule 606 reports.
This table aggregates routing information from 43 broker-dealer Rule 606 reports from Q1 2022. The 43 broker-
  dealers were identified from the 54 retail brokers used in the CAT retail analysis (see infra note 422). This
  analysis uses the retail broker's Rule 606 report if it publishes one or the Rule 606 report of its clearing
  broker if it did not publish a Rule 606 report itself (the sample of 43 broker-dealer Rule 606 reports include
  some broker-dealers that were not included in the CAT analysis because some clearing broker Rule 606 reports
  are included). Some broker-dealers reported handling orders only on a not held basis and did not have any Rule
  606 reports. Because Rule 606 only include percentages of where there order flow is routed and not statistics
  on the number of orders, the reports are aggregated together using a weighting factor based on an estimate of
  the number of non-directed orders each broker-dealer routes each month. The number of orders is estimated by
  dividing the number of non-directed market orders originating from a retail broker in a given month (based on
  estimates from CAT data) by the percentage of market orders as a percent of non-directed orders in the retail
  broker's Rule 606 report (the weight for a clearing broker consists of the aggregated orders from the
  introducing brokers in the CAT retail analysis that utilize that clearing broker).


                         Table 4--Retail Broker Order Routing in NMS Stocks for Q1 2022
----------------------------------------------------------------------------------------------------------------
                                                                       Non-
                                      Market        Marketable      marketable         Other           Total
           Venue type                (percent)         limit           limit         (percent)       (percent)
                                                     (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
                                           Panel A: Non-S&P 500 Stocks
                                                Non-PFOF Brokers
----------------------------------------------------------------------------------------------------------------
Other...........................            24.1            22.3             4.2            41.6            16.0
Exchange........................            <0.1            25.3            80.8            19.7            39.8
Wholesaler......................            76.0            52.4            15.0            38.8            44.2
                                 -------------------------------------------------------------------------------
    Total.......................            38.4            12.4            44.2             5.0           100.0
----------------------------------------------------------------------------------------------------------------
                                                  PFOF Brokers
----------------------------------------------------------------------------------------------------------------
Other...........................            <0.1             1.2             2.8             0.3             1.1
Exchange........................             0.2             1.5             5.8             0.2             2.1
Wholesaler......................            99.7            97.3            91.4            99.5            96.8
                                 -------------------------------------------------------------------------------
    Total.......................            24.1            12.7            31.5            31.8           100.0
----------------------------------------------------------------------------------------------------------------

[[Page 5496]]

 
                                             Panel B: S&P 500 Stocks
                                                Non-PFOF Brokers
----------------------------------------------------------------------------------------------------------------
Other...........................            24.8            27.0             3.2            23.4            15.4
Exchange........................            <0.1            19.6            83.2             8.2            39.0
Wholesaler......................            75.2            53.4            13.6            68.3            45.6
                                 -------------------------------------------------------------------------------
    Total.......................            39.0             9.2            43.8             8.0           100.0
----------------------------------------------------------------------------------------------------------------
                                                  PFOF Brokers
----------------------------------------------------------------------------------------------------------------
Other...........................            <0.1             0.5             1.3             0.3             0.6
Exchange........................             0.2             0.9             3.4             0.3             1.3
Wholesaler......................            99.8            98.6            95.3            99.5            98.2
                                 -------------------------------------------------------------------------------
    Total.......................            28.4             9.7            30.7            31.2           100.0
----------------------------------------------------------------------------------------------------------------
This table aggregates Rule 606 reports from PFOF and non-PFOF retail brokers and separately shows the percentage
  of market orders, marketable limit orders, non-marketable limit orders, and other orders PFOF brokers and non-
  PFOF brokers route to different types of venues in Q1 2022. PFOF brokers are retail brokers that receive
  payments for routing marketable orders to wholesalers. Other venues include any other venue to which a retail
  broker routes an order other than a wholesaler or an exchange. Order type classifications are based on the
  order types broker-dealers are required to include in their Rule 606 reports.
This table aggregates routing information from PFOF and non-PFOF broker-dealer Rule 606 reports from Q1 2022.
  Fourteen retail brokers are identified as PFOF brokers that receive payments for routing orders in NMS stocks
  to wholesalers. Twenty-nine non-PFOF brokers are identified as retail brokers that do not receive monetary
  compensation when they route orders in NMS stocks to wholesalers. The 43 broker-dealers were identified from
  the 54 retail brokers used in the CAT retail analysis (see infra note 422). This analysis uses the retail
  broker's Rule 606 report if it publishes one or the Rule 606 report of its clearing broker if it did not
  publish a Rule 606 report itself (the sample of 43 broker-dealer Rule 606 reports include some broker-dealers
  that were not included in the CAT analysis because some clearing broker Rule 606 reports are included). Some
  broker-dealers reported handling orders only on a not held basis and did not have any Rule 606 reports.
  Because Rule 606 only include percentages of where there order flow is routed and not statistics on the number
  of orders, the reports are aggregated together using a weighting factor based on an estimate of the number of
  non-directed orders each broker-dealer routes each month. The number of orders is estimated by dividing the
  number of non-directed market orders originating from a retail broker in a given month (based on estimates
  from CAT data) by the percentage of market orders as a percent of non-directed orders in the retail broker's
  Rule 606 report (the weight for a clearing broker consists of the aggregated orders from the introducing
  brokers in the CAT analysis that utilize that clearing broker).

    CAT data analysis indicates that about 80% of the share volume and 
about 74% of the dollar volume of individual investor marketable orders 
that were routed to wholesalers and executed comes from PFOF 
brokers.\403\ Data from Table 4 indicates that, while retail brokers 
who accept PFOF from wholesalers tend to send more of their orders to 
those wholesalers, wholesalers even dominate the market access services 
for non-PFOF brokers, though non-PFOF brokers route a significantly 
lower fraction (i.e., 75.2% to 76%) of their market orders to 
wholesalers, compared to 99.7% to 99.8% of market orders for PFOF 
brokers. Moreover, non-PFOF brokers route 24.1% to 24.8% of their 
market orders to other non-exchange market centers, e.g., ATSs, while 
PFOF brokers route less than 1% of their market orders to these market 
centers. However, regardless of whether the retail broker accepts PFOF, 
the order type, or the S&P500 index inclusion of the stock,\404\ Table 
3 shows that retail brokers route over 87% of their customer orders to 
wholesalers.
---------------------------------------------------------------------------

    \403\ See infra Table 15.
    \404\ Rule 606 reports require that broker-dealers separate 
their disclosure information for S&P 500 stocks, non-S&P 500 stocks, 
and options.
---------------------------------------------------------------------------

    This result suggests that, while PFOF may be a factor in retail 
brokers' routing decisions, wholesalers likely also compare favorably 
to other market access (including retail brokers pursuing their own 
market access) along other dimensions. The routing behavior in Table 4 
may, in part, reflect a tendency of non-PFOF brokers to route customer 
orders to market centers such as their own ATSs for mid-point execution 
and the lack of an affiliated ATS for PFOF brokers. However, even 
broker-dealers with their own ATSs do not route the majority of their 
individual investor order flow to those ATSs and typically do not 
internalize order flow. Further, retail brokers with membership on 
multiple exchanges primarily route their marketable orders to 
wholesalers. These results could point to a lower marginal costs of 
routing to wholesalers relative to other routing and execution 
alternatives. Table 5 shows that wholesalers appear to compare 
favorably to exchanges in the execution quality of orders routed to 
them, suggesting that execution quality could be another key factor in 
the decision of retail brokers to route to wholesalers.\405\ In 
particular, marketable orders routed to wholesalers appear to have 
higher fill rates, lower effective spreads, and lower E/Q ratios.\406\ 
These orders are also more likely to receive price improvement and, 
conditional on receiving price improvement, receive greater price 
improvement when routed to wholesalers as compared to exchanges.
---------------------------------------------------------------------------

    \405\ See infra Table 5 and corresponding discussions.
    \406\ The E/Q ratio is the ratio of a stock's effective spread 
over quoted spread. A lower value indicates smaller effective 
spreads (i.e., trading costs) as a percentage of the quoted spread.
---------------------------------------------------------------------------

    In addition, wholesalers may provide additional valuable services 
to retail brokers that route order flow to them. Based on staff 
experience, the Commission understands that wholesalers are more 
responsive to retail brokers that provide them with order flow, 
including, for example, following customer instructions not to 
internalize particular orders. More broadly, wholesalers appear to 
provide retail brokers with a high degree of consistency with regard to 
execution quality. More specifically, wholesalers receive order flow 
from retail brokers

[[Page 5497]]

that contains orders that vary with regard to quoted spreads and 
adverse selection risk. While wholesalers receive order flow from 
retail brokers that contains variation in quoted spreads and adverse 
selection risk, wholesalers could target an average level of price 
improvement across this heterogeneous order flow, resulting in a 
relatively consistent degree of execution quality.
    When wholesalers do not internalize an order, they obtain an 
execution from another market center by either routing in an agency 
capacity or using what is known as a riskless principal transaction. In 
a riskless principal transaction, after receiving an order from a 
retail broker, a wholesaler may send a principal marketable order 
similar to the retail broker order to an exchange and, upon execution 
of the principal order at the exchange, execute the original retail 
broker order at the same price.\407\
---------------------------------------------------------------------------

    \407\ See supra note 182 for further discussions on riskless 
principal transactions.
---------------------------------------------------------------------------

    Commission analysis shows that wholesalers internalize over 90% of 
the executed dollar value in NMS stocks from the marketable order flow 
routed to them by retail brokers, which amounts to more than 80% of 
share volume.\408\ Results also show that the marketable NMS stock 
orders wholesalers choose to internalize have less adverse selection 
risk: orders that wholesalers execute in a principal capacity have a 
price impact of 0.9 bps, compared to a price impact of 4.6 bps for 
those executed via other methods. This is consistent with the dealer 
incentive to hold inventory that is less likely to experience adverse 
changes in price.\409\
---------------------------------------------------------------------------

    \408\ See analysis in infra Table 7.
    \409\ See, e.g., David Easley, et. al. supra note 378.
---------------------------------------------------------------------------

Fractional Share Orders
    A number of retail brokers allow individual investors to trade and 
enter orders for fractional shares of a security, e.g., an individual 
investor could submit an order to buy 0.2 shares of a stock.\410\ This 
type of trading has grown dramatically since 2019, with an increasing 
number of broker-dealers offering this functionality. Evidence suggests 
that this growth is in great part due to the rise in direct retail 
participation in equity markets.\411\ It is the Commission's 
understanding that retail or executing brokers generally trade in a 
principal capacity against their customers' fractional share orders and 
in turn, send out principal orders that are in a whole number of shares 
(i.e., not containing a fractional share component) for execution to 
manage their inventory risk.
---------------------------------------------------------------------------

    \410\ Fractional shares often arise from retail brokers allowing 
individual investors to submit orders for a fixed dollar value.
    \411\ See, Zhi Da, et. al., Fractional Trading (working paper, 
November 18, 2021), available at https://ssrn.com/abstract=3949697 
(retrieved from SSRN Elsevier database). Also see Rick Steves, 
Fractional Shares Experts Weigh In Amid Exploding Retail Trading 
Volumes, FinanceFeeds (Jun. 7, 2021), available at https://financefeeds.com/fractional-shares-experts-weigh-in-amid-exploding-retail-trading-volumes/, which shows that trading volume increased 
substantially (in one case, more than 1,400%) for brokers after they 
introduced the use of fractional shares.
---------------------------------------------------------------------------

    An analysis using CAT data reveals that more than 46 million 
fractional share orders were executed in March 2022, originating from 
more than 5 million unique accounts. Over 31 million of these orders 
were for less than 1 share, and they originated from more than 3.3 
million accounts. The overwhelming majority (92%) of fractional share 
orders were attributed to natural persons, (i.e., individual 
investors). While fractional shares orders only represented a small 
fraction (2.1%) of total executed orders, they represent a much higher 
fraction (15.3%) of executions received by individual investors.
Execution Quality of Individual Investor Marketable Orders
    The wholesaler business model relies on segmentation and 
internalization of marketable order flow of individual investors, which 
is characterized by low adverse selection risk. An analysis of the 
execution quality of market and marketable limit orders handled by 
wholesalers retrieved from Rule 605 reports \412\ and presented in 
Table 5 \413\ shows that orders in NMS stocks handled by wholesalers 
are associated with lower price impact \414\ compared to those executed 
on exchanges, indicating that orders handled by wholesalers on average 
have lower adverse selection costs.\415\ This lower adverse selection

[[Page 5498]]

cost allows wholesalers to provide these orders with better execution 
quality, manifested in lower effective spreads \416\ and E/Q ratios 
compared to exchanges.\417\ The higher realized spreads \418\ 
associated with orders handled by wholesalers observed in Table 5 
suggest that wholesalers have an opportunity to earn higher economic 
profits than liquidity suppliers on exchanges after accounting for 
adverse selection costs (i.e., after adjusting for price impact).\419\ 
This is despite the finding that the orders handled by wholesalers 
eventually execute at better prices than those received by and executed 
on exchanges, as observed by the lower effective spreads shown in Table 
5 for marketable orders handled by wholesalers.
---------------------------------------------------------------------------

    \412\ Rule 605 requires market centers to make available, on a 
monthly basis, standardized information concerning execution quality 
for covered orders in NMS stocks that they received for execution. 
See 17 CFR 242.605. Covered orders are defined in 17 CFR 
242.600(b)(22) to include orders (including immediate-or-cancel 
orders) received by market centers during regular trading hours at a 
time when a national best bid and national best offer is being 
disseminated, and, if executed, is executed during regular trading 
hours, and excludes orders for which the customer requests special 
handling for execution (such as not held orders). Rule 605 reports 
contain a number of execution quality metrics for covered orders, 
including statistics for all non-marketable limit orders with limit 
prices within ten cents of the NBBO at the time of order receipt as 
well as separate statistics for market orders and marketable limit 
orders. Under the Rule, the information is categorized by individual 
security, one of five order type categories (see 17 CFR 
242.600(b)(14)), and one of four order size categories, which does 
not include orders for less than 100 shares or orders greater than 
or equal to 10,000 shares (see 17 CFR 242.600(b)(11)). As such, Rule 
605 does not require reporting for orders smaller than 100 shares, 
including odd-lot orders. Rule 605 requires market centers to report 
execution quality information for all covered orders that the market 
center receives for execution, including orders that are executed at 
another venue (i.e., because they are effectively rerouted to 
another trading center by the market center).
    \413\ The following filters were applied to the Rule 605 data to 
remove potential data errors. Observations where the total shares in 
covered orders were less than the sum of the canceled shares, share 
executed at the market center, and share executed away from the 
market center were deleted. Observations with missing order size 
code, order type code, total covered shares, or total covered orders 
were deleted. Realized and effective spread values are set to 
missing values if the total shares executed at and away from the 
market center are zero. Per share dollar realized spreads, per share 
dollar effective spreads, and per share dollar price improvements 
were winsorized at 20% of the volume weighted average price of the 
stock for the month as calculated from NYSE Daily TAQ data.
    \414\ See supra note 394 and accompanying text for a definition 
and discussion of price impact. Table 5 estimates the average price 
impact associated with marketable orders routed to wholesalers to be 
1.2 bps. This means that for a $10 stock the NBBO midpoint would 
move up (down) by an average of 0.12 cents in the five minutes 
following the execution of marketable buy (sell) order.
    \415\ Once implemented, the changes to the current arrangements 
for consolidated market data in the MDI Adopting Release, 86 FR 
18621 may impact the numbers in Table 5, including by reducing those 
for realized spread, effective spread, and amount of price 
improvement. The NBBO will narrow in stocks priced greater than $250 
because it will be calculated based off a smaller round lot size. 
This narrower NBBO will decrease price improvement statistics in 
Rule 605 reports, which is measured against the NBBO. The effects on 
effective and realized spreads is more uncertain, because they are 
measured against the NBBO midpoint, which may not change if both the 
NBB and NBO decrease by the same amount. However, if marketable 
orders are more likely to be submitted when there are imbalances on 
the opposite side of the limit order book (i.e., more marketable buy 
orders are submitted when there is more size on the offer side of 
the limit order book than the bid side), then the NBBO midpoint may 
change such that it is closer to the quote the marketable order 
executes against, which may decrease the effective and realized 
spreads in stocks above $250 when Market Data Infrastructure is 
implemented. It is uncertain how likely this NBBO midpoint is to 
change. It is also uncertain how or to what degree these changes 
would differ between exchange and wholesaler Rule 605 reports. If 
both changed similarly, then there would not be changes in relative 
differences between their reported spread measures. See supra 
section V.B.3.a).i.b.
    \416\ See supra note 395 for a definition and discussion of 
effective spreads.
    \417\ The E/Q ratio is the ratio of a stock's effective spread 
over quoted spread. A lower value indicates that smaller effective 
spreads (i.e., trading costs) as a percentage of the quoted spread.
    \418\ See supra note 396 and accompanying text for a definition 
and discussion of realized spreads as a measure of the economic 
profits earned by liquidity providers. Realized spreads do not 
measure the actual trading profits that market makers earn from 
supplying liquidity. In order to estimate the trading profits that 
market makers earn, we would need to know at what times and prices 
the market maker executed the off-setting position for a trade in 
which it supplied liquidity (e.g., the price at which the market 
maker later sold shares that it bought when it was supplying 
liquidity). If market makers offset their positions at a price and 
time that is different from the NBBO midpoint at the time lag used 
to compute the realized spread measure (Rule 605 realized spread 
statistics are measured against the NBBO midpoint 5 minutes after 
the execution takes place), then the realized spread measure is an 
imprecise proxy for the profits market makers earn supplying 
liquidity. Additionally, realized spread metrics do not take into 
account any transaction rebates or fees, including PFOF, that a 
market maker might earn or pay, which would also affect the profits 
they earn when supplying liquidity. Furthermore, realized spreads 
also do not account for other costs that market makers may incur as 
part of their business, such as fixed costs for setting up their 
trading infrastructure and costs for connecting to trading venues 
and receiving market data.
    \419\ The execution quality information in Rule 605 combines 
information about orders executed at a market center with 
information on orders received for execution at a market center but 
executed by another market center; see supra note 412. As such, the 
execution quality statistics presented in Table 5 include orders 
that are effectively rerouted by wholesalers. Furthermore, note that 
Rule 605 does not specifically require market centers to prepare 
separate execution quality reports for their SDPs, and as such these 
calculations reflect all covered market and marketable limit orders 
in NMS stocks received and executed by wholesalers, including those 
on SDPs.
---------------------------------------------------------------------------

    Additionally, the results in Table 5 show that approximately 79% of 
the executed dollar volume in marketable orders handled by wholesalers 
are market orders. The Commission believes that these outcomes reflect 
the heavy utilization of market orders for NMS stocks by individual 
investors whose orders are primarily handled by wholesalers, contrary 
to the heavy utilization of limit orders by other market participants.
    Table 5 also highlights significantly higher fill rates, i.e., the 
percentage of the shares in an order that execute in a trade, for 
marketable orders sent to wholesalers as compared to exchanges.\420\ 
Wholesalers execute the vast majority of orders that they receive 
against their own capital, i.e., they internalize the vast majority of 
orders they receive.\421\ Wholesalers expose themselves to inventory 
risk when internalizing order flow, but mitigate this risk by 
internalizing orders that possess low adverse selection risks.
---------------------------------------------------------------------------

    \420\ Marketable orders may not fully execute if there isn't 
sufficient liquidity on the exchange to fill the order within its 
limit price and/or if it contains other instructions that limit 
their execution, such as if they are designated as IOC orders or 
their instructions not to route the order to another exchange.
    \421\ See analysis in infra Table 7 and corresponding 
discussion.

        Table 5--Comparison of Rule 605 Execution Quality Statistics Between Exchanges and Wholesalers for NMS Common Stocks and ETFs in Q1 2022
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Combined marketable orders                Market                     Marketable limit
                                                         -----------------------------------------------------------------------------------------------
                                                                WH              EX              WH              EX              WH              EX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average Price...........................................          $47.89          $58.14          $56.19          $85.45          $30.66          $58.08
Share Volume (billion shares)...........................          106.97          179.49           72.20            0.39           34.77          179.10
Dollar Volume (billion $)...............................       $5,122.91      $10,436.02       $4,056.85          $33.53       $1,066.06      $10,402.49
Fill Rate (%)...........................................          69.32%          25.77%          99.79%          58.08%          34.81%          25.77%
Effective Spread (bps)..................................            1.81            2.06            1.47            3.29            3.11            2.06
Realized Spread (bps)...................................            0.61           -0.38            0.39            2.40            1.43           -0.39
Price Impact (bps)......................................            1.20            2.44            1.08            0.90            1.68            2.45
E/Q ratio...............................................            0.48            1.01            0.40            1.65            0.83            1.01
Pct of Shares Price Improved............................          83.17%           8.78%          88.99%          15.95%          61.01%           8.75%
Constrained Amount of Price Improvement (bps)...........            2.17            1.50            2.33            1.92            1.24            1.50
--------------------------------------------------------------------------------------------------------------------------------------------------------
This table computes aggregated execution quality statistics for marketable orders covered orders received by exchanges and wholesalers from Rule 605
  reports for Q1 2022 for NMS common stocks and ETFs. See supra note 412 for a definition of covered orders. Individual wholesaler and exchange Rule 605
  reports are aggregated together at the stock-month level, into two categories, WH and EX, such that aggregate execution quality data is averaged for,
  a) wholesalers (WH) and, b) exchanges (EX), for each stock during each month.
The following metrics were calculated: Average Price is the stock's average execution price from the Rule 605 data (Dollar Volume/Share Volume), Share
  Volume is the total executed shares (in billions) from the Rule 605 data. Dollar Volume is the total executed dollar volume (in billions), calculated
  as the executed share volume from the Rule 605 data multiplied by the stock's monthly VWAP price, as derived from NYSE Daily Trade and Quote data
  (TAQ). Fill Rate is the weighted average of the stock-month total executed share volume/total covered shares from the Rule 605 data. Effective Spread
  is the weighted average of the stock-month percentage effective half spread in basis points (bps). Realized Spread is the weighted average of the
  stock-month percentage realized half spread in basis points (bps). Price Impact is the weighted average of the stock-month percentage price impact in
  basis points (bps). E/Q ratio is the weighted average of the stock-month ratio of the effective spread/quoted spread. Pct of Shares Price Improved is
  the weighted average of the stock-month ratio of shares executed with price improvement/total executed share volume. Conditional Amount of Price
  Improvement is the weighted average of the stock-month of the amount of percentage price improvement in basis points (bps), conditional on the
  executed share receiving price improvement.

[[Page 5499]]

 
Aggregated effective and realized percentage spreads are measured in half spreads in order to show the average cost of an individual investor order and
  are calculated by dividing the aggregated Rule 605 reported per share dollar amount by twice the stock's monthly volume weighed average price (VWAP),
  as derived from NYSE Daily Trade and Quote data (TAQ), for trades executed during regular market hours during the month. Percentage price impact is
  calculated as the aggregated Rule 605 reported per share dollar effective spreads minus per share dollar realized spreads divided by twice the stock's
  monthly volume weighed average price (VWAP), as derived from NYSE Daily Trade and Quote data (TAQ). Percentage amount of price improvement is
  calculated as the aggregated Rule 605 reported per share dollar amount of price improvement divided by the stock's monthly volume weighed average
  price (VWAP), as derived from NYSE Daily Trade and Quote data (TAQ). Percentage spreads and amount of price improvement percentages are reported in
  basis points (bps). The Combined Market and Marketable Limit order type category is constructed for each security-month-order size category by
  combining the market and marketable limit order categories and computing the total and share weighted average metrics for the order size category for
  each security-month.
The sample includes NMS common stocks and ETFs that are present in the CRSP 1925 US Stock Database, Ctr. Rsch. Sec. Prices, U. Chi. Booth Sch. Bus.
  (2022). The CRSP 1925 US Indices Database, Ctr. Rsch. Sec. Prices, U. Chi. Booth Sch. Bus. (2022), was used to identify if a stock was a member of the
  S&P 500. The stock did not have to be in the CRSP 1925 US Indices Database to be included in the analysis. NMS Common stocks and ETFs are identified,
  respectively, as securities in TAQ with a Security Type Code of `A' and `ETF'. For each stock-month-order-type (such that aggregate execution quality
  data is averaged for, (a) wholesalers and, (b) exchanges, for each stock during each month) the per dollar share weighted measures from Rule 605
  reports are aggregated together by share-weighting across different trading venues and order-size categories within the stock-month-order-type and
  venue type (i.e. trading venue Rule 605 reports for exchanges and wholesalers are aggregated into different categories). Percent values are then
  calculated for each stock month by dividing by the stock's monthly volume weighed average price (VWAP). These percentage stock-month values are
  averaged together into order-type categories (market orders, marketable limit orders, and the combined market and marketable limit order type
  category, for both wholesalers and exchanges) based on weighting by the total dollar trading volume for the wholesaler or exchange category in that
  stock-month-order type, where dollar trading volume is estimated by multiplying the Rule 605 report total executed share volume, i.e., the share
  volume executed at market center + share volume executed away from the market center, for the stock-month-order type by the stock's monthly VWAP). See
  supra note 413 for a discussion of filters that were applied to the Rule 605 data in this analysis. This analysis uses data from prior to the
  implementation of the MDI Rules and specific numbers may be different following the implementation of the MDI Rules. See supra note 415.

    To supplement the analyses using Rule 605 data and test for the 
robustness of the results that it generated, CAT data \422\ was 
analyzed to look at the execution quality of marketable orders of 
individual investors in NMS Common Stocks and ETFs that were less than 
$200,000 in value and that executed and were handled by wholesalers 
during Q1 2022 (``CAT retail analysis'').\423\ This was compared to a 
sample of CAT data examining the execution quality of executed market 
and marketable limit orders in NMS Common Stocks and ETFs received by 
exchanges that were less than $200,000 in value over the same time 
period (``CAT exchange analysis'').\424\
---------------------------------------------------------------------------

    \422\ This analysis used CAT data to examine the execution 
quality of marketable orders in NMS Common stocks and ETFs that 
belonged to accounts with a CAT account type of ``Individual 
Customer'' and that originated from a broker-dealer MPID that 
originated orders from 10,000 or more unique ``Individual Customer'' 
accounts during January 2022. The number of unique ``Individual 
Customer'' accounts associated with each MPID was calculated as the 
number of unique customer account identifiers with an account 
customer type of ``Individual Customer'' that originated at least 
one order during the month of January 2022. The Commission found 
that 58 broker-dealer MPIDs associated with 54 different broker-
dealers originated orders from 10,000 or more unique Individual 
Customer accounts in January 2022. For the Consolidated Audit Trail, 
account type definitions are available in Appendix G to the CAT 
Reporting Technical Specifications for Industry Members (https://catnmsplan.com/), for the field name ``accountHolderType.'' Account 
types represent the beneficial owner of the account for which an 
order was received or originated, or to which the shares or 
contracts are allocated. Possible types are: Institutional Customer, 
Employee, Foreign, Individual Customer, Market Making, Firm Agency 
Average Price, Other Proprietary, and Error. An Institutional 
Customer account is defined by FINRA Rule 4512(c) as a bank, 
investment adviser, or any other person with total assets of at 
least $50 million. An Individual Customer account means an account 
that does not meet the definition of an ``institution'' and is also 
not a proprietary account. Therefore, the CAT account type 
``Individual Customer'' includes natural persons as well as 
corporate entities that do not meet the definitions for other 
account types. The Commission restricted that analysis to MPIDs that 
originated orders from 10,000 or more ``Individual Customer'' 
accounts in order to ensure that these MPIDs are likely to be 
associated with retail brokers to help ensure that the sample is 
more likely to contain marketable orders originating from individual 
investors. NMS Common stocks and ETFs are identified, respectively, 
as securities in TAQ with a Security Type Code of `A' and `ETF'.
    \423\ Fractional share orders with share quantity less than one 
share were excluded from the analysis. The analysis included market 
and marketable limit orders that originated from one the 58 retail 
broker MPIDs and were received by a market center that was 
associated with one of the six wholesalers CRD numbers (FINRA's 
Central Registration Depository number) during some point in the 
order's lifecycle. Orders that were received by the wholesaler or 
executed outside of normal market hours were excluded. Orders were 
also excluded if they had certain special handling codes so that 
execution quality statistics would not be skewed by orders being 
limited in handling by special instructions (e.g., pegged orders, 
stop orders, post only orders). Orders identified in CAT as Market 
and Limit orders with no special handling codes or one of the 
following special handling codes were included in the analysis: NH 
(not held), CASH (cash), DISQ (display quantity), RLO (retail 
liquidity order), and DNR (do not reduce). These special handling 
codes were identified based on their common use by retail brokers 
and descriptions of their special handling codes. The marketability 
of a limit order was determined based on the consolidated market 
data feed NBBO at the time a wholesaler first receives the order. 
Limit orders that were not marketable were excluded. The dollar 
value of an order was determined by multiplying the order's number 
of shares by either its limit price, in the case of a limit order, 
or by the far side quote (i.e., NBO for a market buy order and NBB 
for a market sell) of the consolidated market data feed NBBO at the 
time the order was first received by a wholesaler, in the case of a 
market order. Orders with dollar values greater than or equal to 
$200,000 were excluded from the analysis. The analysis includes NMS 
Common Stocks and ETFs (identified by security type codes of `A' and 
`ETF' in NYSE TAQ data) that are also present in CRSP data. Price 
improvement, effective spreads, realized spreads, quoted spreads, 
and price impacts were winsorized if they were greater than 20% of a 
stock's VWAP during a stock-week. See Table 6 for a detailed 
description of the analysis.
    \424\ The Commission analysis used CAT data to examine the 
execution quality of market and marketable limit orders in NMS 
Common Stocks and ETFs that were under $200,000 in value that were 
received and executed by exchanges during normal market hours in Q1 
2022. The analysis employed filters to clean the data and account 
for potential data errors. The analysis is limited to orders 
identified in CAT as market and limit orders accepted by exchanges. 
Orders were excluded from the analysis if they had certain special 
handling codes, such as post or add-liquidity only orders, midpoint 
orders, orders that can only execute in opening and closing 
auctions, orders with a minimum execution quantity, pegged orders, 
or stop order or stop-loss orders. Orders were also required to 
execute in normal trades during normal trading hours to be included 
in the analysis. Normal trades are identified in CAT data by sale 
conditions ``blank, @, E, F, I, S, Y'' which correspond to regular 
trades, intermarket sweep orders, odd lot trades, split trades, and 
yellow flag regular trades. For orders submitted to exchanges, the 
NBBO the exchange records seeing at the time of order receipt is 
used to measure the NBBO and NBBO midpoint for calculating 
statistics that are based on the time of order receipt (e.g., 
effective spreads, price improvement, quoted spreads, etc.). The 
marketability of exchange orders was determined based on the NBBO 
observed by the exchange at the time of order receipt. The dollar 
value for a market order was calculated as the price of the far side 
NBBO quote (NBO for a market buy order and NBB for a market sell) 
times the shares in the order. The dollar value for a limit order 
was calculated as the price of the limit order times the number of 
shares in the order. Orders with dollar values greater than or equal 
to $200,000 were excluded from the analysis. The consolidated market 
data feed NBBO was used to calculate statistics that use the NBBO or 
NBBO one minute after execution (e.g., realized spreads, price 
impacts, etc.). The analysis includes NMS Common Stocks and ETFs 
(identified by security type codes of `A' and `ETF' in NYSE TAQ 
data) that are also present in CRSP data. Price improvement, 
effective spreads, realized spreads, quoted spreads, and price 
impacts were winsorized if they were greater than 20% of a stock's 
VWAP during a stock-week. See Table 6 for a detailed description of 
the analysis.

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

[[Page 5500]]

    Table 6 reports the results from CAT data analysis.\425\ In 
addition to reporting results for all stocks, it also breaks out 
results based by if a stock is an ETF or is in the S&P 500 or not. 
Generally, the results from this analysis are consistent with results 
from the analysis of Rule 605 data from Table 5. Specifically, 
wholesalers display lower price impacts (WH Price Impact) and E/Q 
ratios (WH E/Q Ratio), indicating that orders internalized by 
wholesalers receive better execution quality relative to order executed 
on exchanges (EX Price Impact and EX E/Q Ratio containing the 
corresponding statistics for exchanges). Despite this enhanced 
execution quality, realized spreads of wholesalers (WH Realized Spread) 
exceed those produced by exchanges (EX Realized Spread).
---------------------------------------------------------------------------

    \425\ Certain items in Table 6 may also be affected by the MDI 
rules once they are implemented. See supra note 415.
---------------------------------------------------------------------------

    Table 6 also reports some statistics for wholesalers that are not 
available in Rule 605 reports, including statistics on midpoint 
executions (WH Pct Shares Executed at Midpoint) and sub-penny trades 
(WH Pct of Shares Executed as Subpenny Prices). In all NMS common stock 
and ETF orders, wholesalers execute approximately 44% of shares at 
prices at or better than the NBBO midpoint (WH Pct Shares Executed at 
Midpoint or Better). However, wholesalers also offer less than 0.1 
cents price improvement to approximately 18.6% of shares that they 
execute (WH Pct Shares Executed with <0.1 cent Price Improvement). 
Wholesalers execute more than 65% of shares at sub-penny prices (WH Pct 
of Shares Executed as Subpenny Prices), with over 40% of shares being 
executed at prices with four decimal points (i.e., the fourth decimal 
place is not equal to zero, which is measured by the WH Pct of Shares 
Executed at Subpenny Prices with 4 Decimals variable).

 Table 6--Wholesaler CAT Analysis of Exchange Individual Investor Order Execution Quality for Marketable Orders
                                 in NMS Common Stocks and ETFs by Type of Stock
----------------------------------------------------------------------------------------------------------------
                    Variable                            All            SP500         NonSP500           ETF
----------------------------------------------------------------------------------------------------------------
                               Panel A: Wholesaler and Exchange Execution Quality
----------------------------------------------------------------------------------------------------------------
Average Price...................................          $29.87         $110.31          $10.52          $53.14
WH Principal Execution Rate.....................          90.44%          93.07%          87.66%          88.12%
WH Share Volume (billion shares)................           87.11           11.63           63.17           12.31
EX Share Volume (billion shares)................          281.90           66.98          140.82           74.10
WH Dollar Volume (billion $)....................       $2,601.44       $1,282.62         $664.41         $654.41
EX Dollar Volume (billion $)....................      $16,194.84       $6,479.89       $3,246.09       $6,468.85
WH Effective Spread (bps).......................            2.11            0.67            6.23            0.76
EX Effective Spread (bps).......................            3.18            1.52            8.11            1.42
WH Realized Spread (bps)........................            0.85            0.42            2.00            0.51
EX Realized Spread (bps)........................           -1.22           -0.28           -3.90           -0.34
WH Price Impact (bps)...........................            1.26            0.25            4.22            0.25
EX Price Impact (bps)...........................            4.40            1.80           12.00            1.75
WH E/Q Ratio....................................            0.39            0.32            0.50            0.41
EX E/Q Ratio....................................            1.04            1.01            0.98            1.17
----------------------------------------------------------------------------------------------------------------
                                      Panel B: Wholesaler Price Improvement
----------------------------------------------------------------------------------------------------------------
WH Pct Executed with Price Improvement..........          89.95%          93.33%          85.43%          87.93%
WH Conditional Amount Price Improvement (bps)...            2.54            1.47            6.16            0.99
WH Pct Shares Executed at Midpoint or Better....          44.57%          47.37%          39.76%          43.97%
WH Pct Shares Executed at Midpoint..............          31.69%          32.47%          28.46%          33.44%
WH Pct Shares Executed at NBBO..................           8.38%           5.86%          10.97%          10.69%
WH Pct Shares Executed Outside NBBO.............           1.67%           0.81%           3.61%           1.38%
WH Pct Shares Executed with <0.1 cent Price               18.64%          16.62%          20.58%          20.64%
 Improvement....................................
WH Pct of Shares Executed as Subpenny Prices....          66.98%          65.10%          64.16%          73.55%
WH Pct of Shares Executed at Subpenny Prices              47.60%          46.82%          47.03%          49.68%
 without Midpoint Trades........................
WH Pct of Shares Executed at Subpenny Prices              41.36%          40.80%          41.76%          42.06%
 with 4 Decimals................................
----------------------------------------------------------------------------------------------------------------
This table uses CAT data to compare aggregated execution quality statistics for Q1 2022 broken out for different
  security types for executed marketable orders with order size under $200,000 in NMS Common Stocks and ETFs
  received by wholesalers from individual investors to similar orders received by exchanges. Aggregated
  statistics in the table labeled WH are based on analysis of CAT data of executed marketable orders in NMS
  Common Stocks and ETFs from individual investors for under $200,000 in value belonging to one of 58 retail
  broker MPIDs that were handled by one of 6 wholesalers during normal market hours in Q1 2022 (see supra note
  423 for additional discussions on the CAT data used in the CAT retail analysis). Aggregated statistics in the
  table labeled EX are based on a corresponding analysis of CAT data of executed marketable orders in NMS Common
  Stocks and ETFs receive by exchanges that were under $200,000 in value and received and executed during normal
  market hours in Q1 2022 (see supra note 424 for additional discussions on the CAT data used in CAT exchange
  analysis).

[[Page 5501]]

 
The following metrics are calculated for all stocks and for each of the stock-types. EX indicates aggregated
  statistics for executed marketable orders routed to exchanges and WH indicates aggregated statistics for
  executed marketable orders from individual investors that were routed to wholesalers. Average Price is the
  average execution price. WH Principal Execution Rate is the percentage of dollar volume of individual investor
  trades that a wholesaler executed in a principal capacity. Share Volume is the total executed share volume.
  Dollar Volume is the total executed dollar volume. Effective Spread is the weighted average of the percentage
  effective half spread in basis points (bps) (measured as average (execution price--NBBO midpoint at time of
  order receipt) * average transaction price). Realized Spread is the weighted average of the percentage one
  minute realized spread in bps (measured as average (execution price--NBBO midpoint one minute after execution)
  * average transaction price). Price Impact is the weighted average of the percentage one-minute price impact
  spread in bps (measured as average (NBBO midpoint one minute after execution--NBBO midpoint at time of order
  receipt)/average transaction price). E/Q Ratio is the weighted average of the ratio of the effective dollar
  spread divided by its quoted spread at the time of order receipt. WH Pct Executed with Price Improvement is
  the weighted average of the percentage of share volume that is routed to wholesalers and executed at a price
  better than the NBBO. WH Conditional Amount Price Improvement is the weighted average amount of percentage
  price improvement given by wholesalers conditional on the order receiving price improvement in bps (measured
  for a marketable buy order as average (NBO at time of order receipt--execution price) and measured for a
  marketable sell order as average (execution price--NBB at time of order receipt) and then dividing the
  difference by the average transaction price). WH Pct Share Executed at Midpoint or Better is the weighted
  average of the percentage of shares that are routed to a wholesaler and executed at prices equal to or better
  than the NBBO midpoint at the time of order receipt. WH Pct Share Executed at Midpoint is the weighted average
  of the percentage of shares that are routed to a wholesaler and executed at a price equal to the NBBO midpoint
  at the time of order receipt. WH Pct Shares Executed at NBBO is the weighted average of the percentage of
  share volume routed to a wholesaler and executed at the NBBO at the time of order receipt (executed at the NBB
  for marketable sell orders and the NBO for marketable buy orders). WH Pct Shares Executed Outside NBBO is the
  weighted average of the percentage of share volume routed to wholesalers and executed at prices outside the
  NBBO at the time of order receipt (executed a price less than the NBB for marketable sell orders and a price
  greater than the NBO for marketable buy orders). WH Pct Shares Executed with <0.1 cent Price Improvement is
  the weighted average of the percentage of shares that are executed with an amount of price improvement less
  than 0.1 cents measured against the NBBO at the time of order receipt. WH Pct Shares Executed Subpenny Prices
  is the weighted average of the percentage of shares that execute at a subpenny price (a dollar execution price
  with a non-zero value in the third or fourth decimal place). WH Pct Shares Executed at Subpenny without
  Midpoint Trades is the weighted average of the percentage of shares that execute at a subpenny price (an
  dollar execution price with a non-zero value in the third or fourth decimal place), excluding executions with
  subpenny prices that occur at the NBBO midpoint. WH Pct Shares Executed at Subpenny Prices with 4 Decimals is
  the weighted average of the percentage of shares that execute at a subpenny price where there is a dollar
  execution price with a non-zero value in the fourth decimal place. Average transaction prices used in
  calculating the metrics are calculated as the total dollar trading volume divided by the total share trading
  volume in the category and time period.
For the wholesaler (WH) CAT metrics used in the sample, the analysis includes marketable orders for under
  $200,000 in value that originate from a customer with a CAT account type of ``individual'' at one of the 58
  retail broker MPIDs and are routed to a wholesaler (see supra note 422 for more info on CAT account types and
  retail broker identification methodology and supra note 423 for more details on how the CAT retail analysis
  sample was constructed). Fractional share orders with share quantity less than one share were excluded from
  the analysis. Orders were also excluded if they had certain special handling codes. The marketability of a
  limit order is determined based on the consolidated market data feed NBBO at the time a wholesaler first
  receives the order.
For the exchange (EX) CAT metrics, executed market and marketable limit orders received by exchanges during
  normal market hours were over the same period were used to calculate the exchange execution quality statics
  (see supra note 424 for more details on how the CAT exchange sample was constructed). Exchange orders were
  filtered if they had certain special handling codes. The marketability of exchange orders was determined based
  on the NBBO observed by the exchange at the time of order receipt.
The dollar value of an order was determined by multiplying the order's number of shares by either its limit
  price, in the case of a limit order, or by the far-side quote of the NBBO at the time of order receipt, in the
  case of a market order. The analysis includes NMS Common Stocks and ETFs (identified by security type codes of
  `A' and `ETF' in NYSE TAQ data) that are also present in CRSP data from CRSP 1925 US Stock Database, Ctr.
  Rsch. Sec. Prices, U. Chi. Booth Sch. Bus. (2022). The CRSP 1925 US Indices Database, Ctr. Rsch. Sec. Prices,
  U. Chi. Booth Sch. Bus. (2022), was used to identify if a stock was a member of the S&P 500. The stock did not
  have to be in the CRSP 1925 US Indices Database to be included in the analysis. Time of order receipt is
  defined as the time the wholesaler or exchange first receives the order. Wholesaler metrics based on the time
  of order receipt are measured against the NBBO from the consolidated market data feed. Exchange metrics based
  on time of order receipt are measured against the NBBO the exchange reports observing. Realized spreads for
  both exchange and wholesaler metrics are calculated with respect to the NBBO midpoint from the consolidated
  market data feed observed one minute after the time of order execution.
Separately, for both the exchange and wholesaler samples, total share volume, total dollar volume, average
  transaction price, percentage volume metrics, and share weighted average dollar per share spread, price
  impact, and price improvement metrics were calculated at a stock-week-order size category level by aggregating
  together execution quality statistics calculated for individual orders. The order-size categories were defined
  as orders less than 100 shares, 100-499 shares, 500-1,999 shares, 2,000-4,999, 5,000-9,999 shares, and 10,000+
  shares. For each stock-week-order size category, percentage spread, price impact, and price improvement
  metrics were calculated by dividing the average dollar per share metric by the average transaction price
  calculated for each stock-week-order size category. E/Q ratios were calculated for each stock-week-order size
  category by dividing the average dollar per share effective spread by the average dollar per share quoted
  spread.
Exchange sample metrics for E/Q ratios and percentage spread, price impact, and price improvement metrics for a
  for each stock-week-order size category were then merged with the corresponding stock-week-order size category
  in the wholesaler sample. Weighted averages for both wholesaler and exchange metrics and the wholesaler
  percentage volume metrics are then calculated for the security type in the sample by averaging across stock-
  week-order size category levels based on their total dollar transaction volume during the sample period in the
  wholesaler CAT sample (i.e., for both exchanges and wholesalers, using the stock's total dollar trading volume
  in wholesaler executed transactions as the weight when averaging the share weighted average stock-week- size
  category values). Weighting the exchange and wholesaler execution metrics by the same weights helps to ensure
  the samples are comparable across stocks. Total dollar volume and share volume for the exchange and wholesaler
  samples are calculated by summing across all executions in a security type in each sample. The wholesaler
  Principal Execution Rate is calculated for a security type in the wholesaler sample by summing the total
  dollar volume in trades wholesalers executed in a principal capacity across the security type in the
  wholesaler sample and dividing by the total dollar volume in traded in the security type in the wholesaler
  sample.
This analysis uses data from prior to the implementation of the MDI Rules and specific numbers may be different
  following the implementation of the MDI Rules. See supra note 415.

    Table 7 uses CAT data to summarize how individual investor 
marketable NMS stock order execution quality varies based on whether 
the wholesaler executes the order in a principal capacity (i.e., 
internalizes the order) or effectively reroutes the order (i.e., 
executes in a riskless principal or handles it in an agency capacity). 
This analysis supports the interpretation that wholesalers identify and 
tend to internally execute individual investor orders associated with 
the lower adverse selection costs.\426\ Internalized orders have a 
lower price impact (0.91 bps as compared to 4.63 bps for those 
effectively rerouted, measured by WH Price Impact), and lower effective

[[Page 5502]]

spreads (1.77 compared to 5.36 for other transactions, measured by WH 
Effective Spread). Wholesalers also earn higher realized spreads on the 
orders they execute as principal (0.86 bps for principal transactions 
compared to 0.72 bps earned by those providing liquidity for the 
riskless principal or agency transactions, measured by WH Realized 
Spread), despite executing them at lower effective spreads.
---------------------------------------------------------------------------

    \426\ Certain items in Table 7 may also be affected by the MDI 
Rules once they are implemented. See supra note 415.

 Table 7--Wholesaler CAT Analysis of Individual Investor Order Execution
                Quality by Wholesaler Execution Capacity
------------------------------------------------------------------------
                                                            Effectively
                Variable                   Internalized      rerouted
------------------------------------------------------------------------
Average Price...........................          $33.48          $14.78
WH Orders (million).....................          236.95           34.36
WH Trades (millions)....................          251.32           74.36
WH Share Volume (billion shares)........           70.28           16.83
WH Pct of Executed Share Volume.........          80.68%          19.32%
WH Dollar Volume (billion $)............       $2,352.80         $248.64
WH Pct of Executed Dollar Volume........          90.44%           9.56%
WH Effective Spread (bps)...............            1.77            5.36
WH Realized Spread (bps)................            0.86            0.72
WH Price Impact (bps)...................            0.91            4.63
WH E/Q Ratio............................            0.35            0.70
WH Pct Executed with Price Improvement..          93.37%          57.65%
WH Conditional Amount Price Improvement             2.45            3.74
 (bps)..................................
WH Pct Shares Executed at Midpoint or             46.05%          30.65%
 Better.................................
WH Pct Shares Executed at Midpoint......          32.23%          26.53%
WH Pct Shares Executed at NBBO..........           5.51%          35.49%
WH Pct Shares Executed Outside NBBO.....           1.12%           6.86%
WH Pct Shares Executed with <0.1 cent             20.38%           2.22%
 Price Improvement......................
------------------------------------------------------------------------
The table summarizes execution quality statistics from the CAT retail
  analysis based on whether the wholesaler executed the individual
  investor NMS stock order in a principal capacity or in another
  capacity (i.e., in an agency or riskless principal capacity). The
  majority of the other transactions are executed by the wholesaler in a
  riskless principal capacity. See supra Table 6 for additional details
  on the sample and metrics used in the analysis. Share-weighted
  percentage metrics are averaged together at the individual execution
  capacity-stock-week-order-size category level for the wholesaler
  sample using the methodology in Table 6. Weighted averages for the
  metrics are then calculated for each execution capacity by averaging
  across execution capacity-stock-week-order size category levels based
  on their total dollar transaction volume during the sample period in
  the wholesaler CAT sample. This analysis uses data from prior to the
  implementation of the MDI Rules and specific numbers may be different
  following the implementation of the MDI Rules. See supra note 415.

    The analysis in Table 7 presents evidence that wholesalers execute 
46% of the shares they internalize at prices equal to or better than 
the midpoint. However, additional analysis of CAT data indicates that 
there is often midpoint liquidity on exchanges and NMS Stock ATSs when 
wholesalers internalize individual investor orders at prices worse than 
the midpoint.
    Table 8 uses CAT data from March 2022 to examine the non-displayed 
liquidity available at the NBBO midpoint on exchanges and NMS Stock 
ATSs at a moment in time when a wholesaler internalizes an individual 
investor marketable order at a price less favorable (to the customer) 
than the NBBO midpoint.\427\ The results indicate that, on 
average,\428\ 51% of the shares internalized by wholesalers are 
executed at prices less favorable than the NBBO midpoint (Wholesaler 
Pct Exec Shares Worse Than Midpoint). Out of these individual investors 
shares that were executed at prices less favorable than the midpoint, 
on average, 75% of these shares could have hypothetically executed at a 
better price against the non-displayed liquidity resting at the NBBO 
midpoint on exchanges and NMS Stock ATSs. Under the current market 
structure, this liquidity is not displayed, so wholesalers may not have 
been aware of this liquidity and able to execute the individual 
investor marketable orders against it. Currently, if wholesalers wanted 
to detect this hidden liquidity, they would have had to ping each 
individual exchange or NMS Stock ATS to see if midpoint liquidity was 
available on that venue.\429\
---------------------------------------------------------------------------

    \427\ More specifically, the analysis uses CAT data to look at 
the total shares available at the NBBO midpoint that originate from 
hidden midpoint pegged orders on exchanges and NMS Stock ATSs. The 
analysis compares the size of an individual investor marketable 
order that was internalized in a principal capacity by a wholesaler 
at a price less favorable than the NBBO midpoint (measured at the 
time the wholesaler received the order) to the total shares of 
midpoint liquidity (originating from midpoint peg orders) at the 
NBBO midpoint on exchanges and NMS Stock ATSs at the time the 
individual investor order is executed in order to hypothetically see 
how many additional shares could have gotten price improvement if 
they had executed against the hidden liquidity available at the NBBO 
midpoint. A midpoint peg order is a type of hidden order whose price 
automatically adjusts with the NBBO midpoint. The analysis looks at 
midpoint peg orders on exchanges and ATSs during normal market hours 
(midpoint peg orders with an Immediate or Cancel or Fill or Kill 
modifier are excluded). The total potential shares in orders that 
were available at the NBBO midpoint from midpoint peg orders on 
exchanges and ATSs was calculated each stock day by adding shares 
when midpoint peg orders were received by an exchange or ATS and 
subtracting shares in these orders that were canceled or traded. 
Shares were also subtracted from the total when a wholesaler 
internalized an individual investor marketable order at a price 
worse than the NBBO midpoint and shares were available at the 
midpoint on exchanges and ATSs that the order could have 
hypothetically executed against. This ensures that that analysis is 
not overestimating the available midpoint liquidity (i.e., it 
ensures that we do not estimate two individual investor 100 share 
orders could have executed against the same resting 100 share 
midpoint order). The analysis also kept track of the total amount of 
dollars of additional price improvement that individual investors 
would have received if their orders had hypothetically executed 
against the liquidity available at the NBBO midpoint instead of 
being internalized by the wholesaler. Note that this analysis might 
underestimate the total non-displayed liquidity available at the 
NBBO midpoint because it only looks at orders that pegged to the 
midpoint and not other orders, such as limit orders with a limit 
price equal to the NBBO midpoint.
    \428\ As discussed in Table 8, percentages were computed at a 
stock-week level and then averaged across stock-weeks by weighting 
by the total dollar volume the wholesaler internalized during that 
stock-week.
    \429\ Pinging for midpoint liquidity at multiple venues could 
increase the risk of information leakage or that prices may move, 
possibly resulting in some market participants canceling midpoint 
orders they posted.
---------------------------------------------------------------------------

    Table 8 also estimates that the additional dollar price improvement 
that these individual investor marketable orders would have received

[[Page 5503]]

if they had executed against the available midpoint liquidity instead 
of being internalized. The total amount of additional price improvement 
that all of these individual investor orders would have received was 
about 51% of the total dollar price improvement provided by wholesalers 
to all of the individual investor marketable orders that they 
internalized (i.e., the marketable orders internalized at prices better 
or equal to the midpoint plus marketable orders internalized at prices 
worse than the midpoint).\430\
---------------------------------------------------------------------------

    \430\ This estimate of the potential additional price 
improvement if orders are executed against midpoint liquidity only 
accounts for differences in the potential execution prices of the 
order and does not account for any other differences in costs of 
executing the order at different venues, such as differences in PFOF 
or access fees and rebates.
---------------------------------------------------------------------------

    In addition, the results in Table 8 also indicate the availability 
of NBBO midpoint liquidity is only slightly lower for less liquid (non-
S&P 500 stocks) as liquid (S&P500) stocks. That is, while about 57% of 
the shares in individual investor marketable orders in non-S&P500 
stocks internalized by wholesalers received executions at less 
favorable prices than the NBBO midpoint, there was nevertheless hidden 
liquidity available at the NBBO midpoint for about 68% of these non-
S&P500 shares. Moreover, the potential additional price improvement 
that could have been gained by if these individual investor orders had 
executed against this NBBO midpoint liquidity is almost 55% of the 
total price improvement provided by wholesalers in these stocks.

                                    Table 8--Available Midpoint Liquidity When Wholesaler Internalizes a Retail Trade
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Wholesaler                      Additional
                                                                                                             Pct exec     Pct shares  MP   dollar price
               Stock type                           Price group                   Liquidity  bucket        shares worse        price        improvement
                                                                                                           than midpoint    improvement         Pct
--------------------------------------------------------------------------------------------------------------------------------------------------------
All....................................  All..............................  ............................           51.05           74.60           51.05
SP500..................................  All..............................  ............................           48.41           72.32           41.43
SP500..................................  (1) <$30.........................  ............................           64.36           60.08           50.00
SP500..................................  (2) $30-$100.....................  ............................           47.82           60.36           29.29
SP500..................................  (3) $100+........................  ............................           47.69           75.69           43.27
NonSP500...............................  All..............................  ............................           57.45           68.10           54.51
NonSP500...............................  (1) <$30.........................  Low.........................           73.30           49.52           67.63
NonSP500...............................  (1) <$30.........................  Medium......................           71.30           60.25           82.85
NonSP500...............................  (1) <$30.........................  High........................           66.77           52.18           59.74
NonSP500...............................  (2) $30-$100.....................  Low.........................           63.60           80.69           68.88
NonSP500...............................  (2) $30-$100.....................  Medium......................           57.71           85.24           61.80
NonSP500...............................  (2) $30-$100.....................  High........................           50.24           71.79           44.58
NonSP500...............................  (3) $100+........................  Low.........................           61.62           84.32           61.49
NonSP500...............................  (3) $100+........................  Medium......................           55.40           93.29           55.96
NonSP500...............................  (3) $100+........................  High........................           47.15           90.99           45.57
ETF....................................  All..............................  ............................           49.93           86.06           58.28
ETF....................................  (1) <$30.........................  Low.........................           66.58           39.75           31.61
ETF....................................  (1) <$30.........................  Medium......................           57.95           54.91           38.35
ETF....................................  (1) <$30.........................  High........................           62.24           78.47           88.70
ETF....................................  (2) $30-$100.....................  Low.........................           61.01           62.00           41.78
ETF....................................  (2) $30-$100.....................  Medium......................           53.94           77.54           46.85
ETF....................................  (2) $30-$100.....................  High........................           49.87           84.09           49.56
ETF....................................  (3) $100+........................  Low.........................           52.45           72.28           40.13
ETF....................................  (3) $100+........................  Medium......................           47.51           87.20           45.35
ETF....................................  (3) $100+........................  High........................           46.93           90.28           48.33
--------------------------------------------------------------------------------------------------------------------------------------------------------
This table summarizes midpoint liquidity available on exchanges and ATSs during March 2022 when a wholesaler internalizes an individual investor
  marketable order less than $200,000 in an NMS common stock or ETF on a principal basis at a price less favorable than the NBBO midpoint (at the time
  of the wholesaler receives the order) from one of the 58 retail broker MPIDs in the CAT retail analysis. Stocks are broken out into buckets based on
  their security type, price, and liquidity. Stock type is based on whether a security is an ETF, or a common stock in the S&P 500 or Non-S&P 500. Price
  buckets are based on a stock's weekly average VWAP price as estimated from TAQ. Stocks within each security type-price bucket, except S&P 500 stocks,
  are sorted into three equal liquidity buckets based on the stock's total share trading volume during the week estimated using TAQ data. See supra
  Table 6 for additional details on the sample and CAT analysis of wholesaler executions of the orders of individual investors.
Wholesaler Pct Exec Shares Worse Than Midpoint is the average percentage of individual investor shares that wholesalers executed on a principal basis at
  a price less favorable than the NBBO midpoint (measured at the time the wholesaler receives the order). Pct Shares MP Price Improvement is the average
  percentage of shares that the wholesaler executed at a price less favorable than the NBBO midpoint that could have executed at a better price against
  resting liquidity available at the NBBO midpoint on exchanges and NMS Stock ATSs at the time the wholesaler executed the order. Additional Dollar
  Price Improvement Pct is the ratio of the total additional dollars of price improvement of the sample period that individual investors whose orders
  were executed at a price less favorable than midpoint would have received if their orders would have executed against available midpoint liquidity,
  divided by the total dollars in price improvement (measured relative to the NBB or NBO at the time of order receipt) that wholesalers provided over
  the sample period when they internalized individual investor orders (i.e. the total price improvement for orders wholesalers internalized at prices
  less favorable than the midpoint plus the total price improvement for orders wholesalers internalized at prices more favorable than the midpoint).

[[Page 5504]]

 
Midpoint liquidity is measured based on resting midpoint peg orders on exchanges and NMS Stock ATSs during normal market hours identified from CAT data.
  Midpoint peg orders with an Immediate or Cancel or Fill or Kill modifier are excluded. The total potential shares in orders that were available at
  midpoint on exchanges and ATSs at a point in time were calculated keeping a running total each stock day by adding shares when midpoint peg orders
  were received by an exchange or NMS Stock ATS and subtracting shares when shares in these midpoint peg orders were canceled or traded. When a
  wholesaler executes an order at a price less favorable than the NBBO midpoint (at the time the wholesaler receives the order), then the executed
  shares are compared to the available resting liquidity at the NBBO midpoint. If the NBBO midpoint at the time the order is executed would provide
  price improvement over the price the wholesaler would have executed the order at, then the shares executed by the wholesaler are subtracted from the
  total resting shares available at the NBBO midpoint, up to the lesser of the number of shares executed by the wholesaler or the total resting shares
  available (i.e. the total resting shares will not drop below zero). These are counted as the total shares that would have received additional price
  improvement at the midpoint. This methodology ensures that that analysis is not overestimating the available midpoint liquidity (i.e. it ensures that
  we do not estimate two individual investor 100 share orders could have executed against the same resting 100 share midpoint order). NBBO midpoints for
  both time of order receipt and time of execution are estimated from the consolidated market data feed.
The additional dollars of price improvement individual investors whose orders were executed at a price less favorable than the midpoint would have
  received if their orders would have executed against available midpoint liquidity was calculated as the difference between the price the wholesaler
  executed the order at and the NBBO midpoint at the time the wholesaler executed the order (i.e., executed price--NBBO midpoint at the time of
  execution for a marketable buy order and midpoint--executed price for a marketable sell order ) times the number of shares that would have received
  the additional price improvement.
Weighted averages are calculated for the variables Wholesaler Pct Exec Shares Worse Than Midpoint and Pct Shares MP Price Improvement using the
  following methodology. Percentages based on share volume are calculate for each stock-week (e.g., total shares executed at a price worse than the
  midpoint during a stock-week divided by the total shares of individual investor marketable orders executed by a wholesaler in a principal capacity
  during the stock-week). Weighted averages are then calculated for each stock-type-price-liquidity bucket by averaging these stock-week percentages
  over the month by weighting each stock-week by the total dollar trade volume internalized by the wholesaler during the stock-week (i.e., using the
  stock's total dollar trading volume internalized by the wholesaler as the weight when averaging the stock-week percentage values).
The Additional Dollar Price Improvement Pct is not weighted and is calculated as the ratio of the month's total additional dollar price improvement
  orders executed at a price less favorable than the NBBO would have received if their orders would have executed against available midpoint liquidity,
  divided by the month's total dollars in price improvement (measured relative the NBBO at the time of order receipt) that wholesalers provided when
  they executed individual investor orders (i.e. the total price improvement for orders wholesalers internalized at prices less favorable than the
  midpoint plus the total price improvement for orders wholesalers internalized at prices more favorable than the midpoint.

ii. Listed Options
a. Options Trading Services Overview
    Registered exchanges are the sole providers of trading services in 
the market for listed options, and the Options Clearing Corporation 
(OCC) is the sole entity clearing trades for exchange-listed options 
and security futures.\431\ All listed options trading occurs on 
exchanges. Exchanges compete with each other by offering different cost 
structures to participate on the exchange, and offering differing order 
types to allow customers advanced trading strategies. Options exchanges 
offer the ability to route orders to competing options exchanges in the 
event of a competing option exchange having the best price for a given 
options order.\432\
---------------------------------------------------------------------------

    \431\ See What Is OCC?, The Options Clearing Corporation, 
available at https://www.theocc.com/Company-Information/What-Is-OCC. 
Listed options can only be traded on a registered options exchange. 
See By-Laws of The Options Clearing Corporation, Article I, Section 
1(C)(28) (defining ``confirmed trade'') and Article VI, Section 1.
    \432\ See e.g., Securities Exchange Act Release No. 60405 (July 
30, 2009), 74 FR 39362 (August 6, 2009) (approving the national 
market system plan relating to options order protection and locked/
crossed markets) (File No. 4-546).
---------------------------------------------------------------------------

    There are sixteen options exchanges \433\ in the U.S. options 
market. Each of the sixteen exchanges is operated by one of five 
exchange groups.\434\ Table 9 presents the market share, as measured by 
contract volume, for each option exchange and each exchange group based 
on OPRA data from 2022/01/01 to 2022/03/31. Cboe is the exchange with 
the largest market share,\435\ at close to 15%. However, on the 
exchange group level, the Nasdaq group, with its six exchanges, has the 
highest market share.
---------------------------------------------------------------------------

    \433\ Eight exchanges trade only options. Eight trade both 
options and equities.
    \434\ Exchange groups are collection of exchanges operated by 
one parent entity.
    \435\ This is in part due to the fact that there are several 
very liquid Cboe-listed only products such as SPX and SPXW.

               Table 9--U.S. Options Exchange Market Share
------------------------------------------------------------------------
                                                                 Market
                Group                         Exchange           share
                                                               (percent)
------------------------------------------------------------------------
BOX.................................  BOX....................       5.78
Cboe................................  Cboe...................      14.81
                                      C2.....................       3.66
                                      EDGX...................       4.86
                                      BZX....................       7.91
Nasdaq..............................  Nasdaq.................       7.93
                                      BX.....................       2.01
                                      PHLX...................      10.91
                                      GEMX...................       2.32
                                      ISE....................       5.63
                                      MRX....................       1.69
NYSE................................  AMEX...................       6.68
                                      Arca...................      12.54
MIAX................................  MIAX...................       5.39
                                      PEARL..................       4.26
                                      EMERALD................       3.61
------------------------------------------------------------------------

    There is one ATS in the market for listed options.\436\ As the 
Commission understands, this ATS offers subscribers an RFQ 
protocol.\437\ A customer may accept the quote the ATS returns from the 
RFQ protocol, after which the order is sent to an exchange for 
execution.
---------------------------------------------------------------------------

    \436\ In contrast to the market for NMS Stocks, ATS trades in 
NMS Options are still executed on an exchange.
    \437\ See, DASH Financial Technologies, Execution Services: Dash 
ATS available at https://dashfinancial.com/execution-services/dash-ats/.
---------------------------------------------------------------------------

    Most option exchanges do not provide midpoint liquidity, and 
marketable orders routed to the limit order book can only be executed 
at the NBBO prices when there is no price improvement order present. 
The Nasdaq Option Exchange first introduced an order type called price 
improvement order which allows market participants to enter the order 
at a non-displayed limit price within the NBBO spread at 1 cent 
increments regardless of the tick size of the option series. Marketable 
customer orders are able interact with the resting price improving 
orders and receive better prices than the prevailing NBBOs.
b. Retail Order Handling in Options
    The Commission understands the majority of retail orders for 
options are handled by wholesalers.\438\ Rule 606 data from Q1 2022 
show that all but one of the top 15 retail options brokers routed all 
of their non-directed \439\ orders from customers to wholesalers. Some 
of this flow is routed directly to wholesalers, while some goes through 
a third-party clearing firm, but is at some point handled by at least 
one wholesaler. Sometimes retail brokers do route to exchanges, either 
directly or through a third-party firm.
---------------------------------------------------------------------------

    \438\ See supra section III.A.
    \439\ According to the Rule 606 filings for the top 15 retail 
brokers for listed options, on average non-directed orders made up 
around 99.13% of all retail orders in Q1 of 2022.
---------------------------------------------------------------------------

    Table 10 summarizes order routing choices of 45 major retail 
brokers for non-directed orders for listed options. Routing decisions 
are summarized

[[Page 5505]]

separately for 23 retail brokers who accept PFOF from wholesalers or 
clearing firms in option markets (PFOF brokers) and those who do not 
(non-PFOF brokers). Within each category of brokers, routing statistics 
for each order type \440\ is reported separately.
---------------------------------------------------------------------------

    \440\ See supra section V.C.2.e.i.
---------------------------------------------------------------------------

    Similar to results for NMS stocks, the composition of order types 
differ between non-PFOF and PFOF brokers. Market orders and marketable 
limit orders comprise a smaller proportion of orders routed by non-PFOF 
brokers than PFOF brokers. For example, market orders make up 9.97% and 
14.60% of non-directed orders of non-PFOF and PFOF brokers, 
respectively. Consequently, the non-marketable limit order type and 
other order type make up smaller shares of orders routed by PFOF 
brokers.
    Non-PFOF brokers route a significantly lower fraction, 46%, of 
their customer orders to wholesalers, compared to over 99% of customer 
orders that PFOF brokers route to wholesalers. Additionally, Non-PFOF 
brokers also route 17% of customer orders to clearing firms, whereas 
essentially no orders from PFOF brokers are routed in this manner. 
Finally, as an alternative to the previously mentioned routing choices, 
Non-PFOF brokers route a significantly higher fraction, 38%, of 
customers' orders directly to the exchanges than PFOF brokers, which 
route less than 0.1% of the order flow to the exchanges.

                     Table 10--Retail Broker Order Routing in Listed Options for March 2022
----------------------------------------------------------------------------------------------------------------
                                                                       Non-
                                      Market        Marketable      marketable         Other           Total
           Venue type                (percent)         limit           limit         (percent)       (percent)
                                                     (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
                                             Non-PFOF Retail Brokers
----------------------------------------------------------------------------------------------------------------
Clearing firm...................            4.49            1.46           10.62            0.27           16.84
Exchange........................            0.01            0.44            5.47           31.70           37.61
Wholesaler......................            5.48            7.88           47.14           35.01           45.55
                                 -------------------------------------------------------------------------------
    Total.......................            9.97            9.25           51.18           20.66          100.00
----------------------------------------------------------------------------------------------------------------
                                               PFOF Retail Brokers
----------------------------------------------------------------------------------------------------------------
Clearing firm...................            0.00            0.00            0.02            0.01            0.04
Exchange........................            0.00            0.00            0.06            0.01            0.07
Wholesaler......................           14.59            8.19           44.71           32.41           99.90
                                 -------------------------------------------------------------------------------
    Total.......................           14.60            8.20           44.78           32.42          100.00
----------------------------------------------------------------------------------------------------------------
This table shows the percentage of market orders, marketable limit orders, non-marketable limit orders, and
  other orders that retail brokers route to different types of venues in March 2022. Other venues include any
  other venue to which a retail broker routes an order other than a wholesaler or an exchange. Twenty-three
  retail brokers are identified as PFOF retail brokers that receive payments for routing orders in listed
  options to wholesalers or clearing firms. Twenty-two non-PFOF retail brokers are identified as retail brokers
  that do not receive monetary compensation when they route orders in listed options to wholesalers. The reports
  are aggregated together using a weighting factor based on an estimate of the number of orders non-directed
  orders each broker-dealer routes each month. The number of orders is estimated by dividing the number of
  market orders a retail broker routes according to a CAT analysis by the percentage of market orders the retail
  broker routes for March 2022.

    Similar market forces that drive internalization of orders in the 
equity markets exist in option markets as well.\441\ In the options 
market, internalization \442\ can occur on the limit order book or 
through price improvement auction mechanisms.\443\ Internalization on 
the limit order book requires the wholesalers' own quotes to be at the 
NBBOs, and some exchanges develop certain features (e.g., specialist 
model) \444\ to facilitate and improve the internalization rate. From 
the Consolidated Audit Trail data for March 2022, the Commission 
estimates that wholesalers internalize 70.6% of the single-leg orders 
routed to the price improvement auctions and 19.1% of the single-leg 
orders routed to the limit order books.\445\ For multi-leg orders, the 
internalization rates are 82.4% and 9.27% respectively.\446\ Combining 
single-leg and multi-leg orders, the Commission estimates wholesalers 
internalize around 31% of the executed orders routed to the option 
exchange: 73% of orders routed to price improvement auctions and 17% of 
orders routed to the limit order book.\447\
---------------------------------------------------------------------------

    \441\ See supra section V.B.3.i.(d).
    \442\ In contrast to the market for NMS Stocks, NMS options are 
typically internalized after being sent to an exchange. Broker-
dealers wishing to internalize orders are able to use the rules of 
exchanges to internalize some orders completely, through routing to 
affiliated market makers (partial internalization), or through price 
improvement auctions (partial internalization), which offer 
competition advantages over competing market participants.
    \443\ Price improvement auctions can be used by institutional 
broker-dealers to seek price improvement opportunities for their 
institutional clients' orders as well. Some exchanges have developed 
auctions for large orders with an ``all-or-none'' feature.
    \444\ ``Specialist model'' is a general term. The term to 
describe a ``specialist'' varies by exchange. Some exchanges may 
formally call this ``Designated Market Marker,'' or other similar 
terms.
    \445\ A single-leg order involves buying or selling a single 
options series. For example, buying a call option on XYZ stock with 
a strike price of $5.00.
    \446\ A multi-leg order involves buying or selling multiple 
options series simultaneously. For example, buying a call option on 
XYZ stock with a strike price of $5.00, and, in the same order, 
selling a call option on XYZ stock with a strike price of $10.00.
    \447\ The internalization rate measure throughout this paragraph 
is based on the contract volume. A given customer's order can be 
partially internalized. For example, suppose a wholesaler routes an 
order with 10 contracts to a price improvement auction and is 
allocated 7 contracts after the auction concludes, then the 
wholesaler is deemed as internalizing 70% of the order.

[[Page 5506]]



                           Table 11--Execution Protocol and Allocation of Limit Order
                                           [Book by options exchange]
----------------------------------------------------------------------------------------------------------------
                Group                         Exchange            Specialist        Auction          Pro-rata
----------------------------------------------------------------------------------------------------------------
BOX.................................  BOX....................               Y                Y                Y
CBOE................................  CBOE C2................               N                N                Y
                                      CBOE...................               Y                Y                Y
                                      CBOE BZX...............               N                N                N
                                      CBOE EDGX..............               N                Y                Y
MIAX................................  MIAX...................               Y                Y                Y
                                      MIAX Emerald...........               Y                N                Y
                                      MIAX PEARL.............               N                N                N
Nasdaq..............................  Nasdaq BX..............               Y                Y                Y
                                      Nasdaq GEMX............               Y                Y                Y
                                      Nasdaq ISE.............               Y                Y                Y
                                      Nasdaq MRX.............               Y                Y                Y
                                      Nasdaq NOM.............               N                N                N
                                      Nasdaq PHLX............               Y                N                Y
NYSE................................  NYSE American..........               Y                Y                Y
                                      NYSE Arca..............               N                Y                N
----------------------------------------------------------------------------------------------------------------

    To internalize a given customer's marketable order on the exchange 
limit order book, the wholesaler needs to provide a quote that is at 
the NBBO.\448\ This form of internalization may not yield complete 
internalization of the order because there could be quotes from other 
market makers, some of whom are quoting at the same price and may have 
priority over the wholesaler (e.g., the other market makers will have 
priority if the wholesaler joins the NBBO set by other market makers in 
a price-time priority exchange or they quote with a larger trading 
interest than the wholesaler in a pro-rata exchange). Being a 
specialist enables the wholesaler to further internalize more orders 
more than a pro-rata allocation model would allow.\449\ Some exchanges 
appoint a firm to be the specialist for each equity option class. 
According to Table 11, 10 out of 16 option exchanges adopt the 
specialist model for quoting and executing single-leg orders on the 
limit order book. The specialist has greater quoting requirements than 
other exchange members or market makers. To compensate specialists for 
continuous provision of two-sided quotes to match buyers and sellers, 
the exchanges reward specialists by allowing the specialist to receive 
a greater allocation (40%+) of incoming orders if they are at the NBBO 
and/or provide them with a guarantee of 100% allocation of orders of 5 
contracts or less (the ``five-lot rule''). Some exchanges allow 
executing brokers to route customers' orders in the form of directed 
orders to the affiliated market makers with heightened allocation 
(40%+) and small order guarantees with 100% of the orders of one 
contract. According to the table, all exchanges that adopted the 
specialist model are pro-rata exchanges, meaning that trading interests 
are allocated based on the size of the quote in proportion to the total 
depth on the NBBO. Therefore, when wholesalers are also specialists, 
wholesalers may receive a disproportionate allocation of the customer 
order, even though, as the specialist, the wholesaler might not be 
providing the most depth at the best prices. A recent academic study 
\450\ shows that the execution quality is worse for specialists who pay 
PFOF than the specialists who do not: the realized spreads for the 400 
to 500 share orders, which can be fully internalized by the 
specialists, are 3 basis points higher when the specialists pay PFOF 
compared to when the specialists do not pay PFOF, suggesting that the 
process is not fully efficient.
---------------------------------------------------------------------------

    \448\ Internalizing a customer's non-marketable limit order with 
a price between the prevailing NBBO spread would require the 
wholesaler to route the customer's order to the limit order book 
first and then submit an immediate-or-cancel order to fill the limit 
order. The internalization rate may not be 100% since other market 
makers can react to the limit order after the exchange books the 
book in the limit order book.
    \449\ All the exchanges that appoint specialists are pro-rata 
exchanges. In a pro-rata exchange, allocations are proportional to 
the trading interests at the best prices for each options series.
    \450\ See Ernst & Spatt, supra note 77.
---------------------------------------------------------------------------

    Another way to internalize customer orders without being a 
specialist is through price improvement auctions. Some option exchanges 
\451\ provide two-sided price improvement mechanisms for both single-
leg and multi-leg orders originated from customers. To start a price 
improvement auction (PIA), the affiliated market maker (``MM'') of an 
executing broker usually submits a two-sided order representing a 
customer's order and its own ``contra'' order, which is on the opposite 
side of the customer's order, to the exchange. The PIA usually lasts 
for 0.1 seconds, during which time, the exchange would expose and 
broadcast the customer order to other exchange members (competing 
market participants) for price improvement opportunity over the current 
NBBO price, and the competing market participants then submit 
responding orders to the auction to the exchange. After the PIA 
concludes, the allocation of the execution will begin with the best 
price received from the contra order and responding orders and end with 
the price where the remaining volume of the customer's order will be 
filled. In addition to the previously mentioned benefits to 
specialists, option exchanges have developed certain arrangements or 
schedules to give wholesalers advantages to conduct operations on the 
exchange by further facilitating the ability of wholesalers to 
internalize the customer orders they receive through the auctions. Such 
preferential advantages include, but are not limited to the following: 
(1) asymmetric fee schedule in which initiating MMs pay a much smaller 
transaction fee than competing market participants, (2) price auto-
match in which the exchanges allow the PIA initiating exchange members 
to match the best price among the responding orders from the competing 
market participants, and (3) guaranteed allocation in which the 
initiating exchange members are allowed to execute at least 40% of the 
customer's order exposed in a PIA. Academic studies suggest that the 
preferential treatment of wholesalers provided by the exchanges leads 
to less

[[Page 5507]]

than fully competitive liquidity provision in auctions.\452\
---------------------------------------------------------------------------

    \451\ According to Table 11, 10 out of 16 option exchanges 
provide price improvement auction mechanisms to wholesalers and 
other executing brokers.
    \452\ See supra note 450 and see also Terrance Hendershott, Saad 
Khan, & Ryan Riordan, Option Auctions, (Working paper, May 15, 2022) 
available at https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=4110516 (retrieved from Elsevier database).
---------------------------------------------------------------------------

iii. Payment for Order Flow in NMS Securities \453\
---------------------------------------------------------------------------

    \453\ See infra section V.B.3.(c) for a discussion of PFOF in 
the market for crypto asset securities.
---------------------------------------------------------------------------

    Rule 10b-10(d)(8) defines payment for order flow as any monetary 
payment, service, property, or other benefit that results in 
remuneration, compensation, or consideration to a broker or dealer from 
any broker or dealer, national securities exchange, registered 
securities association, or exchange member in return for the routing of 
customer orders by such broker or dealer to any broker or dealer, 
national securities exchange, registered securities association, or 
exchange member for execution.\454\ PFOF includes any payments from a 
wholesaler to a retail broker-dealer in return for order flow. It also 
includes any exchange rebates paid to a broker-dealer in return for 
sending orders to the exchange. PFOF has the potential to adversely 
affect routing decisions to the extent it is not directly passed on to 
the customer.\455\ However, it is also possible that there is a 
tradeoff between PFOF and execution quality that does not adversely 
affect order routing decisions.
---------------------------------------------------------------------------

    \454\ See supra note 43 for discussion of payment for order flow 
definition under Rule 10b-10(d)(8). In certain circumstances, 
broker-dealers are required to disclose their PFOF arrangements. For 
example. Rule 10b-10 requires extensive disclosures in 
confirmations, including specific disclosures about PFOF. 
Additionally, Rule 606 reports require the disclosure of PFOF 
arrangements and the average PFOF rates broker-dealers receive on 
non-directed orders in NMS stocks and options for routing orders to 
a trading venue.
    \455\ FINRA has stated that obtaining price improvement is a 
heightened consideration when a broker-dealer receives payment for 
order flow and it is especially important to determine that 
customers are receiving the best price and execution quality 
opportunities notwithstanding the payment for order flow. See FINRA 
Regulatory Notice 21-23, supra note 294.
---------------------------------------------------------------------------

    Studies have found that PFOF may adversely affect order execution 
quality. For example, one study looked at the effect of exchange 
rebates in the routing of non-marketable limit orders in the equities 
markets and found evidence that broker-dealers tend to route customer 
orders to the venues that pay high rebates, but offer lower execution 
quality in the form of lower fill rates and longer times to order 
execution.\456\ Similarly, in the options market, a study \457\ finds 
that some brokers tend to route non-marketable limit orders for listed 
options to exchanges that offer large rebates. The study's analysis 
indicates that non-marketable limit orders routed to exchanges that pay 
higher liquidity rebates receive worse execution quality than non-
marketable limit orders routed to exchanges that do not offer liquidity 
rebates. One study finds no relation, potentially as a result of low 
statistical power.\458\ Evidence on the potential adverse effects 
appears stronger in the options market than in the equity market.\459\ 
Section V.B.3.(a).iii.a presents Commissions analysis.
---------------------------------------------------------------------------

    \456\ See, e.g., Robert H. Battalio, Shane A. Corwin & Robert H. 
Jennings, Can Brokers Have It All? On the Relation Between Make-Take 
Fees and Limit Order Execution Quality, 71 J. Fin. 2193 (2016), 
available at https://onlinelibrary.wiley.com/doi/10.1111/jofi.12422/full (``We identify retail brokers that seemingly route orders to 
maximize order flow payments by selling market orders and sending 
limit order to venues paying large liquidity rebates. . . . [W]e 
document a negative relation between limit order execution quality 
and rebate/fee level. This finding suggests that order routing 
designed to maximize liquidity rebates does not maximize limit order 
execution quality. . . .'').
    \457\ See, e.g., Robert Battalio, Todd Griffith & Robert Van 
Ness, Do (Should) Brokers Route Limit Orders to Options Exchanges 
That Purchase Order Flow?, 56 J. Fin. Quan. Anal. 183 (2020).
    \458\ See Christopher Schwarz, et. al., The `Actual Retail 
Price' of Equity Trades (Working paper, September 14, 2022) 
(``Schwarz''), available at https://ssrn.com/abstract=4189239 
(retrieved from Elsevier database) do not find a relationship 
between the amount of PFOF a retail broker receives and the amount 
of price improvement their customers' orders receive. However, see 
infra note 466 for a discussion comparing the results in Table 16.
    \459\ See Ernst & Spatt, supra note 77, at 1 (``We exploit 
variation in the Designated Market Maker (DMM) assignments at option 
exchanges to show that retail traders receive less price 
improvement, and worse prices, from those DMMs who pay PFOF to 
brokers.''). The paper also finds PFOF amounts from wholesalers in 
the NMS stock market are small (compared to the options market) and 
that individual investor orders executed at wholesalers receive 
meaning price improvement.
---------------------------------------------------------------------------

a. PFOF Amounts and Rates
    Table 12 summarizes information on PFOF payments in NMS Stocks and 
Options for Q1 2022 received by 52 retail broker-dealers and aggregated 
based on the order type and type of trading venue.\460\ Wholesalers 
paid more than $750 million dollars, about 94% of the total PFOF 
payments of approximately $850 million. Note also that PFOF for options 
represent the largest share of these payments (70%), equal to more than 
$550 million. In addition, PFOF for non-S&P 500 orders was about 24% of 
total wholesale PFOF disbursements, substantially larger than the 6% 
share of PFOF paid for S&P 500 orders. Finally, note that wholesaler 
PFOF for marketable orders (market and marketable limit orders) was 
equal to 51% of all wholesaler PFOF, while PFOF for non-marketable 
limit orders equaled about 38% of wholesaler PFOF disbursements.
---------------------------------------------------------------------------

    \460\ The PFOF data was aggregated from Rule 606 reports from 
the 52 retail brokers. The order types are based on those included 
in Rule 606 reports. Other Trading Venues includes any other trading 
center to which a retail broker routes an order other than a 
wholesaler or an exchange, including ATSs. See supra note 404 for 
more details on what is included in Rule 606 reports.

  Table 12--Aggregated 606 Payments for Q1 2022 to Retail Broker-Dealers by Venue Type, Asset Class, and Order
                                                      Type
----------------------------------------------------------------------------------------------------------------
                                                                       Non-
                                   Market orders    Marketable      marketable     Other orders        Total
                                                   limit orders    limit orders
----------------------------------------------------------------------------------------------------------------
Wholesalers:
    S&P 500.....................     $20,169,292      $6,861,406     $15,675,087      $4,963,329     $47,669,114
    Non-S&P 500.................      74,313,900      45,711,676      53,253,329      14,502,924     187,781,828
    Options.....................      69,221,438     185,987,581     235,507,979      70,361,954     561,078,951
                                 -------------------------------------------------------------------------------
        Total...................     163,704,629     238,560,663     304,436,395      89,828,206     796,529,894
National Securities Exchanges:
    S&P 500.....................          -2,883      -1,600,326       4,151,796      -1,058,038       1,490,549
    Non-S&P 500.................         -14,624     -13,794,526      24,538,646      -2,224,848       8,504,649
    Options.....................         -54,106       4,838,611      19,019,112      13,334,942      37,138,559
                                 -------------------------------------------------------------------------------
        Total...................         -71,613     -10,556,240      47,709,554      10,052,056      47,133,756
Other Trading Venues:

[[Page 5508]]

 
    S&P 500.....................         -14,335         -87,299         514,713          16,715         429,794
    Non-S&P 500.................          41,513      -1,397,974       1,736,516          -5,007         375,049
    Options.....................         185,367        -305,579       4,740,343         649,611       5,269,742
        Total...................         212,545      -1,790,852       6,991,572         661,319       6,074,585
        Grand Total.............     163,845,562     226,213,571     359,137,521     100,541,581     849,738,235
----------------------------------------------------------------------------------------------------------------
This table shows the aggregate payments made from different types of venues in Q1 2022 to 52 broker-dealer based
  on their Rule 606 reports. The table breaks out payments from exchanges, wholesalers, and other trading venues
  for market orders, marketable limit orders, non-marketable limit orders, and other orders in S&P 500 stocks,
  Non-S&P 500 stocks and Options. Other Trading Venues includes any other trading center to which a retail
  broker routes an order other than a wholesaler or an exchange, including ATSs.

    Table 13, Panel A summarizes the total PFOF dollars paid to the 52 
broker-dealers in Q1 2022 based on their total assets. The majority of 
payments, more than 750 million dollars, went to broker-dealers with 
more than 1 billion dollars in assets. As shown earlier, most of this 
payment came from the options market.
    Table 13, Panel B summarizes the distribution of total PFOF dollars 
paid to the 52 broker-dealers as a percentage of their total revenue in 
Q1 2022. On average, the payments reported on Rule 606 reports 
accounted for 21% of the broker-dealer's total revenue. However, there 
was considerable variation across broker-dealers. Rule 606 reported 
payments accounted for less than 5.9% of total revenue for over 50% of 
the broker-dealers in the sample. However, for the top 10% of broker-
dealers by revenue, Rule 606 reported payments accounted for more than 
74% their total revenue in Q1 2022.

    Table 13--Rule 606 Report Broker-Dealer Sample and Payments by Asset Size and Distribution of Payments as Percent of Broker-Dealer Total Revenue
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Size of Broker-Dealer (Total Assets)
                Variable                 ---------------------------------------------------------------------------------------------------------------
                                               >50bn         1bn-50bn        500mn-1bn      100mn-500mn     10mn-100mn       1mn-10mn          <1mn
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Panel A: Broker-Dealers and Payments in Rule 606 Sample by Asset Size
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Firms in 606 Sample...........              10              20               2              13               7               0               0
Number of Firms with Positive 606                      5              11               1               5               4               0               0
 Payments...............................
606 Total Dollar Payments...............    $323,768,783    $437,613,668          $4,122     $72,400,510     $15,951,151              $0              $0
606 Total Equity Payments...............    $112,360,651    $108,639,249          $4,122     $23,525,311      $1,721,651              $0              $0
606 Total Options Payments..............    $211,408,132    $328,974,419              $0     $48,875,200     $14,229,501              $0              $0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Panel B: Distribution of Firm Payments Reported in Rule 606 as Percentage of Broker-Dealers' Total Revenue
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Mean           Std Dev        10th Pctl       25th Pctl       50th Pctl       75th Pctl       90th Pctl
--------------------------------------------------------------------------------------------------------------------------------------------------------
606 Total Payments % of Total Revenue...          20.94%          32.31%           0.02%           0.08%           5.82%          28.66%          74.29%
606 Equity Payments % of Total Revenue..           6.67%          11.57%           0.00%           0.02%           1.24%           7.70%          16.23%
606 Options Payments % of Total Revenue.          14.28%          27.52%           0.00%           0.02%           2.52%          17.50%          49.96%
--------------------------------------------------------------------------------------------------------------------------------------------------------
This table summarizes total payments from the Q1 2022 Rule 606 Reports for 52 broker-dealers based on their total assets and total revenue. Panel A
  shows how many broker-dealers fall within each asset size category and the total payments reported on their Rule 606 Reports that they received in the
  equity and options markets from venues to which they routed orders in Q1 2022. Panel B shows the distribution of the equity and options payments as a
  percentage of a firm's total revenue for Q1 2022. Total Assets are estimated by Total Assets (allowable and non-allowable) from Part II of the FOCUS
  filings (Form X-17A-5 Part II) from Q4 2021 and correspond to balance sheet total assets for the broker-dealer. Total Revenue is reported by each
  broker-dealer during Q1 2022 in their FINRA Supplemental Statement of Income Form.

    From the Rule 606 reports of 15 major retail brokers for listed 
options, we can infer that as of Q4 of 2020, 11 of them had PFOF 
arrangements with wholesalers, one firm routed the orders directly to 
the exchanges, one firm routed the orders to its parent firm, and the 
remaining two firms routed the orders to wholesalers but did not have 
PFOF arrangements. According to the Rule 606 reports, wholesalers paid 
$560 million in PFOF to the 11 retail brokers for non-directed orders 
in listed options in Q1 2022.
    Table 14 presents the average payment rates reported in Rule 606 
reports for PFOF broker-dealers in listed options in Q1 2022. The 
statistics are further broken down by trading venue and order type, 
with rates given in cents per 100 shares.\461\ The average PFOF rates 
are negative for the marketable limit orders and other orders routed to 
exchanges, but the rate is positive for non-marketable limit orders 
suggesting the brokers route most of the non-marketable limit orders to 
the maker-taker exchanges to collect rebates. According to the table, 
the average PFOF rates paid by clearing firms are smaller but not much 
smaller than wholesalers across all order types suggesting that 
clearing firms pass majority of the monetary compensation from 
wholesalers to the retail brokers with which they have PFOF 
arrangements.
---------------------------------------------------------------------------

    \461\ The PFOF rate is missing for the market orders routed 
directly to the options exchanges because, according to the rule 606 
reports, these brokers neither paid fees nor received rebates from 
exchanges for the market orders in Q1 2022.

[[Page 5509]]



  Table 14--Average Rule 606 Payment Rates for Q1 2022 to PFOF Broker-Dealers by Venue Type for Listed Options
----------------------------------------------------------------------------------------------------------------
                                                             Marketable limit    Non-marketable
                Venue type                   Market orders        orders          limit orders     Other orders
----------------------------------------------------------------------------------------------------------------
Exchange..................................             N/A               -43.1              42.6           -59.6
Clearing firm.............................            38.4                  33              35.2            39.8
Wholesaler................................            39.9                52.5              51.8            40.4
----------------------------------------------------------------------------------------------------------------
This table shows the average payment rates (in cent per 100 shares) made from different types of venues in Q1
  2022 to 23 broker-dealers that received PFOF from wholesalers based on their Rule 606 reports. The table
  breaks out average rates from wholesalers and clearing firms for market orders, marketable limit orders, non-
  marketable limit orders, and other orders in listed options. Twenty-three retail brokers are identified as
  PFOF retail brokers that receive payments for routing orders to wholesalers or clearing firms. This analysis
  uses the retail broker-dealer's Rule 606 report if it publishes one or the Rule 606 report of its clearing
  broker if the retail broker did not produce a Rule 606 report itself. The reports are aggregated using a
  weighting factor equal to the PFOF amount.

b. Empirical Relation Between PFOF and Price Improvement
    Although wholesalers provide individual investor orders with price 
improvement relative to exchanges, the magnitude of this price 
improvement is not uniform across retail brokers.\462\ Analysis in this 
section shows that two factors driving variation in the price 
improvement wholesalers provide are the amount of PFOF the wholesaler 
pays to the retail brokers and the average adverse selection risk posed 
by the customers of the retail broker.
---------------------------------------------------------------------------

    \462\ Several recent working papers found that price improvement 
varies across retail brokers; see Schwarz, supra note 458, and 
Bradford Lynch, Price Improvement and Payment for Order Flow: 
Evidence from A Randomized Controlled Trial (Working paper, June 27, 
2022), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4189658 (retrieved from Elsevier database) 
(``Lynch''). These studies only included trades that were initiated 
by the authors, and do not include other trades that were handled by 
the brokers in their samples. In contrast, the Commission's analysis 
is based on the data reflecting all orders routed by 58 broker-
dealer MPIDs.
---------------------------------------------------------------------------

    Commission analysis presented in Table 15 compares average 
execution quality for PFOF and non-PFOF brokers for executed marketable 
orders of individual investors under $200,000 in NMS common stocks and 
ETF orders that are routed to wholesalers.\463\ Results are divided 
between orders that were executed by the wholesaler on a principal 
basis (i.e., internalized) and those executed via other methods (the 
majority of which are in a riskless principal capacity).
---------------------------------------------------------------------------

    \463\ Some brokers that do not accept PFOF for orders in 
equities accept PFOF for orders in options. Certain items in Table 
15 may also be affected by MDI Rules once they are implemented. See 
supra note 415.

        Table 15--Comparison of PFOF and Non-PFOF Broker Execution Quality in NMS Common Stocks and ETFs
----------------------------------------------------------------------------------------------------------------
                                                      Principal transactions            Other transactions
                                                 ---------------------------------------------------------------
                                                     Non-PFOF          PFOF          Non-PFOF          PFOF
----------------------------------------------------------------------------------------------------------------
Average Price...................................          $41.79          $31.35          $23.90          $12.47
Wholesaler (WH) Share Volume (billion shares)...           14.32           55.96            3.40           13.43
WH Dollar Volume (billion $)....................         $598.44       $1,754.36          $81.23         $167.41
Pct of Executed Dollar Volume...................          23.00%          67.44%           3.12%           6.44%
WH Effective Spread (bps).......................            1.50            1.86            4.57            5.75
WH Realized Spread (bps)........................            0.88            0.85            0.83            0.66
WH Realized Spread Adj PFOF (bps)...............            0.88            0.43            0.83           -0.55
WH Price Impact (bps)...........................            0.62            1.01            3.74            5.07
WH E/Q Ratio....................................            0.30            0.37            0.78            0.67
WH Pct Executed with Price Improvement..........          90.59%          94.32%          46.89%          62.87%
WH Conditional Amount Price Improvement (bps)...            2.75            2.34            2.31            4.30
----------------------------------------------------------------------------------------------------------------
The table summarizes execution quality statistics from the CAT retail analysis in Common Stocks and ETFs based
  on whether the retail broker MPID receives PFOF from wholesalers (PFOF) or does not (Non-PFOF) and whether the
  wholesaler executed the individual investor order in a principal capacity or in another capacity (i.e., in an
  agency or riskless principal capacity). A broker-dealer MPID was determined to be a PFOF broker if the broker-
  dealer reported receiving PFOF on its Q1 2022 606 report, or if the report of its clearing broker reported
  receiving PFOF in the event that the broker did not publish a Rule 606 report. Broker-dealers or clearing
  brokers that handled orders on a not held basis and did not disclose PFOF information in their Rule 606 report
  were classified as PFOF brokers if disclosures on their websites indicated they received PFOF. Twenty-two
  MPIDs belonging to 19 retail brokers were classified as receiving PFOF. The majority of the other transactions
  are executed by the wholesaler in a riskless principal capacity. See supra Table 6 for additional details on
  the sample and metrics used in the analysis. WH Realized Spread Adj PFOF is the estimated realized spread in
  bps earned by the wholesaler after adjusting the realized spread for the estimated PFOF they pay to retail
  brokers.\a\ Share-weighted percentage metrics are averaged together at the individual PFOF-execution capacity-
  stock-week-order-size category level for the wholesaler sample using the methodology in Table 6. Weighted
  averages for the metrics are then calculated for each PFOF-execution capacity category by averaging across
  execution capacity-stock-week-order size category levels based on their total dollar transaction volume during
  the sample period in the wholesaler CAT sample. This analysis uses data from prior to the implementation of
  the MDI Rules and specific numbers may be different following the implementation of the MDI Rules. See supra
  note 415
\a\ See infra note 467 for further details on estimated PFOF retail brokers receive. Realized spreads for
  marketable orders routed to wholesalers are adjusted for PFOF by subtracting the estimated dollar per share
  PFOF rate the retail broker receives from the average per share dollar realized spread in the execution
  capacity-stock-week-order type-order size category and then dividing by the average transaction price to
  calculate the percentage metric as discussed in further detail in supra Table 6.

    The results in Table 15 show that wholesaler internalized orders 
(Principal Transactions) originating from PFOF brokers are associated 
with (1) higher effective spreads, (2) higher E/Q ratios, and (3) 
slightly smaller price improvement on orders that achieved at least 
some price improvement (WH Conditional Amount Price

[[Page 5510]]

Improvement), relative to wholesaler internalized orders originating 
from non-PFOF brokers. However, the results also show that orders 
internalized from non-PFOF brokers also have lower adverse selection 
risk and similar realized spreads (before PFOF is paid), indicating the 
lower adverse selection risk could explain differences in the observed 
execution quality.
    Because the results in Table 15 are averages across broker-dealers, 
they cannot disentangle the effects of PFOF on execution quality from 
differences in the adverse selection risk of different broker-
dealers.\464\ In order to control for these differences, the Commission 
analyzed the effects of PFOF and differences broker-dealer adverse 
selection risk on execution quality in a regression framework that 
controls for other factors that could affect the price improvement 
provided by wholesalers.
---------------------------------------------------------------------------

    \464\ They also cannot disentangle the effects of differences in 
the stocks traded by PFOF and non-PFOF brokers.
---------------------------------------------------------------------------

    Table 16 displays regression results from Commission CAT retail 
analysis of NMS Common stock and ETF orders,\465\ and shows that the 
previous results indicating that brokers that receive PFOF receive 
inferior execution quality are robust to the inclusion of controls for 
differences in the type of order flow coming from different broker-
dealers.\466\ The regression tests whether there is a relationship 
between execution quality and the amount of PFOF a broker-dealer 
receives and includes several individual stock- and market-level 
controls \467\ as well as the retail broker's average price impact and 
size (as measured by percent of executed individual investor dollar 
volume). Four different measures of execution quality are used for the 
dependent variable, including E/Q ratio, effective spread, realized 
spread, and price improvement.\468\
---------------------------------------------------------------------------

    \465\ Certain items in this Table 16 may also be affected by the 
amendments in the MDI Rules once they are implemented. See supra 
note 415.
    \466\ Schwarz et. al., supra note 458, did not find a 
relationship between the amount of PFOF a retail broker receives and 
the amount of price improvement its customers' orders receive. 
However, they noted that the variation in the magnitude of price 
improvement they saw across retail brokers was significantly greater 
than the amount of PFOF the retail broker received, which could 
indicate their sample was not large enough to observe a 
statistically significant effect. Similarly, when we examine 
variation in effective spreads across retail brokers based on their 
average price impact (i.e., their average adverse selection risk), 
we observe that the differences between the effective spreads of 
PFOF and non-PFOF brokers as shown in Table 15, infra, are 
significantly smaller than the differences observed across retail 
brokers based on variation in their average price impacts. Lynch, 
supra note 462, compares the execution quality of similar orders 
routed to two different retail brokers that receive different 
amounts of PFOF from wholesalers. The study finds that the retail 
broker that received a greater amount of PFOF from wholesalers 
(i.e., had a higher per share PFOF rate reported in their Rule 606 
reports) provided less price improvement compared to a similar order 
routed to a retail broker that received less PFOF. Importantly, both 
studies only included trades that were initiated by the authors and 
do not include other trades that were handled by the brokers in 
their samples, preventing them from examining the attributes of a 
typical retail order handled by each broker. As such, these studies 
do not observe the variation in price improvements that reflect 
differences in the adverse selection risk associated with the order 
flow of different brokers, and hence, likely conflate the impacts of 
PFOF with those of adverse selection risk. That is, these studies 
cannot control for the possibility that a wholesaler would offer 
smaller price improvement to order flows with higher adverse 
selection risk. In contrast, the Commission relies on CAT data to 
examine the adverse selection risk at the broker level, which is a 
determinant of the amounts of price improvements that a given 
wholesaler would offer to different brokers. The regression 
framework in infra Table 16 controls for the adverse selection risk 
of the retail broker and finds that is has a negative relationship 
with the magnitude of price improvement their customers' orders 
receive. We also find a negative relationship between the amount of 
PFOF a broker-dealer receives and the magnitude of the price 
improvement their customers' orders receive after controlling for 
the retail broker adverse selection risk.
    \467\ Broker-dealer cents per 100 shares PFOF rates (dollar PFOF 
rates) are determined from their Q1 2022 Rule 606 reports (see supra 
Table 2) or the Rule 606 reports of its clearing broker reported 
receiving PFOF in the event that the broker did not publish a Rule 
606 report. A PFOF rate of 20 cents per 100 shares was used for the 
introducing broker-dealers and clearing broker that reported handled 
orders on a not held basis and did not disclose PFOF information in 
their Rule 606 report but disclosed on their website that they 
received PFOF for their order flow. 20 cents per 100 shares was the 
PFOF rate that the clearing broker that handles orders on a not held 
basis disclosed on their website that they received. Twenty-two 
MPIDs belonging to 19 retail brokers were classified as receiving 
PFOF. Dollar PFOF rates for each retail broker were merged with the 
corresponding stock (S&P 500 and non-S&P 500) and order type in the 
CAT sample. For the regressions in Table 16, percentage PFOF rates 
are estimated in basis points by dividing the PFOF cents per 100 
share values from Rule 606 reports (after converting them to dollar 
per share values) by the stock-week VWAP for the security in the CAT 
sample. Stock-level controls include average share volume, VWAP, 
return, average effective spread, average realized spread, and 
average quote volatility during a week. Market-level controls 
include market volatility, market return, and the market's average 
daily trading volume during week.
    \468\ The regression also includes variables to control for 
differences in execution quality across different wholesalers and 
across different order size categories. The analysis examines trades 
in Q1 2022 that wholesalers execute in a principal capacity from 
market and marketable limit orders from individual investors that 
are under $200,000 in value and are in NMS Common Stocks and ETFs. 
See supra Table 6 for further discussion on the sample. The unit of 
observation for the regression is the average execution quality 
provided to trades that are aggregated together based on having the 
same stock, week, order type, order size category, wholesaler, and 
retail broker MPID. The coefficients are estimated by weighting each 
observation by the total dollar volume of trades executed in that 
observation.

                   Table 16--Regression Analysis Showing Relationship Between Execution Quality and PFOF in NMS Common Stocks and ETFs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            (4) Amount price improvement
          Variables                   (1)   E/Q ratio          (2)   Effective spread (bps)   (3)   Realized spread (bps)               (bps
--------------------------------------------------------------------------------------------------------------------------------------------------------
PFOF Rate....................  0.0132 *** [2.82]............  0.217 *** [6.31].............  0.211 *** [7.13].............  -0.170 *** [-5.52].
Stock Share Volume...........  0.0379 [0.51]................  -0.0462 [-0.14]..............  -0.886 * [-1.65].............  -0.533 ** [-2.53].
Stock VWAP...................  -0.000028 [-1.06]............  0.000233 [0.61]..............  -0.000450 [-0.78]............  0.000014 [0.04].
Stock Return.................  -0.000273 [-0.21]............  -0.0200 * [-1.93]............  -0.0120 [-0.36]..............  0.00840 [0.84].
VIX..........................  0.00968 *** [7.29]...........  0.0122 * [1.79]..............  0.0607 *** [2.85]............  -0.000256 [-0.05].
Market Return................  -0.00710 ** [-2.02]..........  0.00787 [0.36]...............  0.00686 [0.15]...............  -0.0150 [-0.96].
Market Dollar Volume.........  0.0306 *** [9.70]............  0.0641 *** [3.44]............  0.164 *** [3.07].............  -0.0390 *** [-2.69].
Stock Avg Effective spread...  0.00700 *** [3.34]...........  0.122 *** [6.07].............  -0.0455 * [-1.94]............  0.00746 [0.52].
Stock Avg Realized spread....  -0.00169 * [-1.87]...........  -0.00902 [-1.45].............  0.0730 *** [2.98]............  -0.00552 [-1.48].
Stock Quote Volatility.......  0.457 ** [2.09]..............  2.232 [1.05].................  -1.799 [-0.65]...............  4.458 ** [2.03].
Broker-Dealer Average Price    0.145 *** [14.74]............  0.414 *** [9.83].............  0.316 *** [8.50].............  -0.417 *** [-10.21].
 Impact.
Broker-Dealer Pct Volume.....  -2.45e-05 [-0.07]............  -0.00207 * [-1.76]...........  -0.00546 *** [-3.77].........  0.000124 [0.12].
Average Trade Qspread........  -0.00720 *** [-10.12]........  0.517 *** [19.78]............  0.378 *** [10.84]............  0.392 *** [21.14].
Wholesaler Fixed Effects.....  Yes..........................  Yes..........................  Yes..........................  Yes.
Order Size Category Fixed      Yes..........................  Yes..........................  Yes..........................  Yes.
 Effects.
Stock Fixed Effects..........  Yes..........................  Yes..........................  Yes..........................  Yes.
Observations.................  13,365,122...................  13,365,122...................  13,365,122...................  12,453,440.

[[Page 5511]]

 
Adjusted R-squared...........  0.279........................  0.574........................  0.060........................  0.594.
--------------------------------------------------------------------------------------------------------------------------------------------------------
This table presents the results of a regression analysis examining the effect of retail brokers receiving PFOF from wholesalers on levels of price
  improvement and the execution quality of their customers' orders when the wholesaler internalizes the order on a principal basis.
The analysis examines trades in Q1 2022 that wholesalers execute in a principal capacity from market and marketable limit orders from individual
  investors that are under $200,000 in value and are in NMS Common stocks and ETFs. See supra Table 6 for further discussion on the CAT retail sample.
  The unit of observation for the regression is the average execution quality provided to trades that are aggregated together based on having the same
  stock, week, order type, order size category, wholesaler, and retail broker MPID. Weighted regression are performed based on the total dollar value
  executed by the wholesaler in that observation (i.e., total shares executed for all orders that fit within that stock-week-retail broker-wholesaler-
  order type-order size category). This means that the regression coefficients capture the effect on execution quality on a per-dollar basis.
Dependent variables include: the average E/Q ratio of the shares traded; the average percentage effective spread of the shares traded measured in basis
  points; the average percentage realized spread of the shares traded measured in basis points; and the average percentage value of the amount of price
  improvement measured in basis points, conditional on the order being price improved. These variables are from the CAT retail analysis and described in
  supra Table 6.
Explanatory variables include: PFOF Rate is the retail brokers' PFOF rates in bps (the per share rates were determined from retail broker Rule 606
  reports and divided by the VWAP of the executed shares in the sample to determine the PFOF rate on a percentage basis, see supra note 467); Broker-
  Dealer Pct Volume is the retail broker size (in terms of percentage total executed dollar trading volume in the sample); Stock Share Volume is the
  stock's total traded share volume during the week (from TAQ in billions of shares); Stock VWAP is the VWAP of stock trades during the week (from TAQ);
  Stock Return is the stock's return during the week (from CRSP 1925 US Stock Database, Ctr. Rsch. Sec. Prices, U. Chi. Booth Sch. Bus. (2022)); VIX is
  the average value of the VIX index during the week (from CBOE VIX data); Market Return is the average CRSP value weighted market return during the
  week, Market Dollar Volume is the total market dollar trading volume during the week (from CRSP 1925 US Stock Database, Ctr. Rsch. Sec. Prices, U.
  Chi. Booth Sch. Bus. (2022)); Stock Avg Effective spread is the stock's share weighted average percent effective half spread during the week measured
  in basis points (from TAQ); Stock Avg Realized spread is the stock's share weighted average percent realized half spread during the week measured in
  basis points (from TAQ); Stock Quote Volatility is the stock's average 1 second quote midpoint volatility measured in basis points (from TAQ); Broker-
  Dealer Average Price Impact is calculated for each Retail Broker MPID's by share weighting their average percentage price impact half spread within an
  individual NMS common stock or ETF and then averaging across stocks using the weighting of the dollar volume the retail broker MPID executed in each
  security (see supra Table 6 for additional details on how the metric is constructed); Average Trade Qspread is the average percentage quoted half
  spread at the time of order submission for orders in that stock-week-retail broker-wholesaler-order type-order size category measured in basis points;
  wholesaler fixed effects (i.e., indicator variables for each wholesaler that control for time-invariant execution quality differences related to each
  wholesaler); order-size category fixed effects (i.e., indicator variables for each order-size category that control for time-invariant execution
  quality differences related to order-size category); and individual stock fixed effects (i.e., indicator variables for each stock that control for
  time-invariant execution quality differences related to individual stocks). The order size categories include less than 100 shares, 100-499 shares,
  500-1,999 shares, 2,000-4,999, 5,000-9,999 shares, and 10,000+ shares. Brackets include t-statistics for the coefficients based on robust standard
  errors that are clustered at the stock level. ***, **, and * indicate the t-statistics for the coefficients are statistically significant at the 0.01,
  0.05, and 0.1 levels, respectively.
This analysis uses data from prior to the implementation of the MDI Rules and specific numbers may be different following the implementation of the MDI
  Rules. See supra note 415

    Regression results in Table 16 support the conclusion that 
wholesalers provide worse execution quality to brokers that receive 
more PFOF. The coefficients on the PFOF Rate variable indicates that, 
all else equal, for the orders wholesalers internalize, execution 
quality declines as the amount of PFOF paid to the retail broker 
increases. Orders from retail brokers that receive a greater amount of 
PFOF have higher E/Q ratios and effective spreads and receive less 
price improvement. The regression results (as measured by the 
coefficient on the PFOF Rate variable) indicate that, all else equal, 
wholesalers earn higher realized spreads on orders for which they pay 
more PFOF. Note that PFOF is not taken out of the realized spread 
measure, so the realized spread serves as a proxy for wholesaler's 
economic profits before any fees are taken out.
    The regression results in Table 16 also show that the retail 
broker's adverse selection risk (as measured by the coefficient on the 
Broker-Dealer Average Price Impact variable) has a statistically 
significant effect on the execution quality wholesalers give on trades 
they internalize. The positive coefficient indicates that wholesalers 
provide worse execution quality to broker-dealers whose customers' 
orders pose a greater adverse selection risk.
(b) Fixed Income Securities
i. Corporate Debt Securities
    The market for corporate debt securities (``corporate bonds'') 
represents a significant part of the fixed income market. In July 2022, 
the average daily par value dollar volume of corporate bond trading was 
$34.2 billion.\469\ Estimates put the annualized growth rate of the 
corporate bond market at 5.2 percent between 2008 and 2019, a growth 
rate second only to that of U.S. Treasury securities within the fixed 
income space.\470\
---------------------------------------------------------------------------

    \469\ Average daily par value dollar volume is reported by FINRA 
each month. See FINRA Data, TRACE Monthly Volume Files, available at 
https://www.finra.org/finra-data/browse-catalog/trace-volume-reports/trace-monthly-volume-files. The corporate bond market has 
over 58,000 outstanding issues. Maureen O'Hara and Xing (Alex) Zhou, 
Corporate Bond Trading: Finding the Customers' Yachts, 48 J. 
Portfolio Mgt Mkt Microstructure 96, 98 (June 2022), available at 
https://jpm.pm-research.com/content/early/2022/06/11/jpm.2022.1.373.
    \470\ Vega Economics, Trends in the U.S. Corporate Bond Market 
Since the Financial Crisis (Oct. 12, 2020), available at https://vegaeconomics.com/trends-in-the-us-corporate-bond-market-since-the-financial-crisis.

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

[[Page 5512]]

    Fixed income securities trading venues (e.g., ATSs, non-ATS trading 
venues (RFQ platforms), voice methods) compete on fees and trading 
protocols that help expose retail customer orders to attract order 
flows from retail broker-dealers. Corporate bond ATSs are primarily 
used by broker-dealers to trade on behalf of retail customers or to 
rebalance excess inventories.\471\ In September 2021, corporate bond 
trading on ATSs accounted for 7.7 percent of total TRACE-reported 
corporate bond trading dollar volume (calculated using bond par 
value).\472\ Currently, the Commission understands that there are 12 
ATSs with a Form ATS on file trading corporate bonds.\473\ Trading 
protocols offered on corporate bond ATSs include, among other things, 
limit order books (LOBs), displayed and non-displayed trading 
interests, and auctions (e.g., RFQ, bids-wanted-in-competition (BWIC), 
and offers-wanted-in-competition (OWIC)).
---------------------------------------------------------------------------

    \471\ See, e.g., Matthew Kozora, Bruce Mizrach, Matthew Peppe, 
Or Shachar & Jonathan Sokobin, Alternative Trading Systems in the 
Corporate Bond Market, Fed. Res. B.N.Y. Staff Report No. 938 (Aug. 
2020), available at https://www.newyorkfed.org/medialibrary/sr938.pdf. See, Louis Craig, Abby Kim & Seung Won Woo, Pre-trade 
Information in the Corporate Bond Market, SEC Division of Economic 
and Risk Analysis White Paper (Oct. 2020), available at https://www.sec.gov/files/corporate_bond_white_paper.pdf. White papers and 
analyses are prepared by SEC staff in the course of rulemaking and 
other Commission initiatives. The U.S. Securities and Exchange 
Commission disclaims responsibility for any private publication or 
statement of any employee or Commissioner. White papers express the 
authors' views and do not necessarily reflect those of the 
Commission, the Commissioners, or other members of the staff. This 
staff white paper on corporate bond ATSs finds that large dealers 
(i.e., those in the highest quartile of trading volume and number of 
bonds traded) are more likely to provide corporate bond quotes on 
ATSs than smaller dealers.
    \472\ See FINRA, TRACE Monthly Volume Files, available at 
https://www.finra.org/finra-data/browse-catalog/trace-volume-reports/trace-monthly-volume-files. One commenter referenced similar 
numbers for 2020, stating that corporate bond trades (including both 
investment-grade and high-yield bonds) on all ATSs represented 6.4 
percent of the trade volume and 18.7 percent of the trade count 
reported to TRACE. See MarketAxess Letter, at 1.
    \473\ In addition, a small percentage of corporate bonds are 
exchange-traded on trading systems such as NYSE Bonds and the Nasdaq 
Bond Exchange. See generally, https://www.nyse.com/markets/bonds. 
Trading volume in exchange-traded bonds was reported to be around 
$19 billion as of January 2020. See Eric Uhlfelder, A Forgotten 
Investment Worth Considering: Exchange-Traded Bonds, Wall St. J. 
(Jan. 6, 2020) available at https://www.wsj.com/articles/a-forgotten-investment-worth-considering-exchange-traded-bonds-11578279781. (Retrieved from Factiva database).
---------------------------------------------------------------------------

BILLING CODE 8011-01-P

Table 17--Estimated Transaction Costs and Trade Price Dispersion Across 
Fixed Income Categories

[[Page 5513]]

[GRAPHIC] [TIFF OMITTED] TP27JA23.000

BILLING CODE 8011-01-C
    The aforementioned changes in bond market structure have 
fundamentally lowered the cost of trading. Though the corporate bond 
market remains subject to periodic and security-specific illiquidity 
constraints, one recent academic study finds that corporate bond 
transactions costs have decreased by 70% over the past decade.\474\ 
According to Commission analyses, par volume-weighted average effective

[[Page 5514]]

spreads \475\ calculated in the year ending July 2022 in corporate bond 
markets were approximately 27 basis points. Liquidity often 
concentrated in the largest and most recently issued bonds.\476\ 
Additional Commission analyses indicate that the top and bottom 
quartile of corporate bond effective spreads differ by more than 30 
bps.
---------------------------------------------------------------------------

    \474\ See O'Hara and Zhou, supra note 469.
    \475\ Effective spread calculation is defined in Table 17.
    \476\ See A Financial System That Creates Economic 
Opportunities, Capital Markets, U.S. Department of the Treasury, 
October 2017, available at https://www.treasury.gov/press-center/press-releases/documents/a-financial-system-capital-markets-final-final.pdf (``Treasury Report'') at 85.
---------------------------------------------------------------------------

    Effective spreads for retail-sized trades are nearly twice as wide 
as larger size trades (see Panel A of Table 17).\477\ The Commission 
estimates that effective spreads on riskless principal transactions are 
approximately 12 bps lower for retail-sized corporate bond trades, but 
the difference between large size trade effective spreads remains wide 
at 26 bps.
---------------------------------------------------------------------------

    \477\ Neither FINRA TRACE nor MSRB RTRS data provide explicit 
identification of trades as ``retail'' in fixed income markets. We 
use the widely held convention of retail ``size'' trades of being 
under $100,000 consistent with studies including Lawrence Harris & 
Anindya Mehta, Riskless Principal Trades in Corporate Bond Markets 
(Aug. 26, 2020), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3681652 (retrieved from Elsevier database) 
and Griffin, supra note 66, in the corporate and municipal bond 
markets, respectively.
---------------------------------------------------------------------------

    The standard deviation ratio statistics of Panel B in Table 17 show 
dispersion in the execution quality for corporate bond trades. The 
standard deviation ratio statistics compare interdealer trade execution 
prices to those of customers within a given bond-trading day. Even for 
large trades, a standard deviation ratio of 1.92 suggests that for 
every dollar of price dispersion in the interdealer market customers 
see almost twice the dispersion in prices. For retail trades, this 
difference increases to 2.87 suggesting an even wider range of price 
execution quality outcomes.\478\
---------------------------------------------------------------------------

    \478\ Commission analyses for corporate debt securities trades 
with no remuneration/markups show the dispersion of customer 
execution prices was 65% greater than that of interdealer trades, 
suggesting that price dispersion in customer trades may not solely 
be driven by disparate markups.
---------------------------------------------------------------------------

ii. Municipal Securities
    The market for municipal securities (``municipal bonds'') 
represents another important part of the fixed income market. Unlike in 
the markets for other fixed income securities, which are mostly owned 
by institutional investors, retail investors play a prominent role in 
the ownership of municipal bonds, with 40 percent of municipal bonds 
held by households and nonprofits as of Q1 2022.\479\ This is largely 
due to the tax-exempt status of most municipal bonds, which makes them 
attractive to households but less attractive to institutional investors 
such as pension funds, whose holdings are already tax-deferred or tax 
exempt. Municipal bond markets also tend to be highly localized, as 
investors that are located in geographic proximity to an issuer are 
more likely to be informed about that issuer, and tax benefits are 
often conferred on investors that are located in the same state as the 
issuer.\480\ Daily trading volumes in the municipal bond market 
averaged around $9 billion during the 2021 calendar year.\481\ Average 
trade sizes in this market tend to be smaller than in other fixed 
income markets: in July 2022, 81 percent of trades were for $100,000 or 
less, reflecting the higher presence of retail investors in this 
market.\482\
---------------------------------------------------------------------------

    \479\ See, John Bagley, Marcelo Vieira & Ted Hamlin, Trends in 
Municipal Securities Ownership, at 6, Munic. Sec. Rulemaking Bd 
(June 2022), available at https://www.msrb.org/sites/default/files/Trends-in-Municipal-Securities-Ownership.pdf. Data used by this 
paper is largely from the Federal Reserve's Financial Accounts of 
the United States. Id., at 2. See also infra note 495 and 
accompanying text.
    \480\ See, Paul Schultz, The market for new issues of municipal 
bonds: The roles of transparency and limited access to retail 
investors, 106 J. Fin. Econ. 492, 492 (2012).
    \481\ See Municipal Securities Rulemaking Board, Muni Facts, 
available at https://www.msrb.org/News-and-Events/Muni-Facts.
    \482\ See Municipal Securities Rulemaking Board, Municipal Trade 
Statistics, available at https://emma.msrb.org/MunicipalTradeStatistics/ByTradeCharacteristic.aspx.
---------------------------------------------------------------------------

    Municipal securities trading venues (e.g., ATSs, non-ATS trading 
venues (RFQ platforms), voice methods) compete on fees and trading 
protocols that help expose retail customer orders in order to attract 
order flows from retail broker-dealers. ATSs play an increasingly 
important role in the municipal bond market. Between August 2016 and 
April 2021, an estimated 56.4 percent of municipal bond interdealer 
trades (26 percent in terms of par volume) were executed on ATSs.\483\ 
Municipal bond ATSs are primarily used by broker-dealers to execute 
trades on behalf of retail customers or to rebalance excess 
inventories. ATSs may help to reduce search costs. Indeed, one study 
finds that dealers are more likely to access ATS systems for trades 
that are more difficult to price and that face substantial search 
costs, such as smaller size trades and trades involving municipal bonds 
with complex features.\484\ Accordingly, 90 percent of quotes on 
municipal bond ATSs are offer quotes.\485\ On the other hand, the vast 
majority of RFQs on municipal bond ATSs are requests for bids, 
reflecting that RFQ protocols are more likely to be used when customers 
want to sell. Similar to the case of corporate bond markets, RFQs may 
instead be preferred by traders that want to limit information leakage, 
such as in case of large size trades. At least 43.6 percent of 
interdealer trades (74.1 percent in terms of par volume) in the 
municipal bond market take place via trading methods that are not ATSs, 
with 38.3 percent taking place on interdealer platforms and 5.3 percent 
on broker's broker platforms.\486\
---------------------------------------------------------------------------

    \483\ See Simon Z. Wu, Characteristics of Municipal Securities 
Trading on Alternative Trading Systems and Broker's Broker 
Platforms, Municipal Securities Rulemaking Board (Aug. 2021), (``Wu 
(2021)''), available at https://msrb.org/sites/default/files/MSRB-Trading-on-Alternative-Trading-Systems.pdf. See also Letter from 
Edward J. Sisk, Chair, Municipal Securities Rulemaking Board, dated 
March 1, 2021 (``MSRB Letter''), stating that MSRB trade data shows 
that ATSs were involved in 21 percent of all trades and 55 percent 
of all inter-dealer trades in the municipal bond market.
    \484\ See Wu (2021), supra note 483.
    \485\ See Simon Z. Wu, John Bagley, & Marcelo Vieira, Municipal 
Securities Pre-Trade Market Activity: What Has Changed Since 2015?, 
Municipal Securities Rulemaking Board (2020), available at https://www.sec.gov/spotlight/fixed-income-advisory-committee/msrb-staff-analysis-of-municipal-securities-pre-trade-data.pdf.
    \486\ See Wu (2021), supra note 483.
---------------------------------------------------------------------------

    Transaction costs in the municipal bond market have typically been 
large compared to other markets, and academic studies have attributed 
these large transaction costs to a lack of price transparency and 
subsequent information asymmetry between dealers and customers.\487\ 
One MSRB staff report suggests that a movement away from voice trading 
and towards electronic trading may have helped reduce transaction costs 
for customer trades by 51 percent between 2005 and 2018.\488\ The 
Commission estimates that effective spreads for retail-sized trades 
remain approximately 23 basis points higher than that of larger 
municipal bond trades.
---------------------------------------------------------------------------

    \487\ See, e.g., Lawrence E. Harris, & Michael S. Piwowar, 
Secondary Trading Costs in the Municipal Bond Market, 61 J. Fin. 
1361 (2006).
    \488\ See Simon Z. Wu, Transaction Costs for Customer Trades in 
the Municipal Bond Market: What is Driving the Decline?, Municipal 
Securities Rulemaking Board (July 2018), at 15, available at https://www.msrb.org/sites/default/files/Transaction-Costs-for-Customer-Trades-in-the-Municipal-Bond-Market.pdf.
---------------------------------------------------------------------------

    Commission estimates in Panel B of Table 17 show average execution 
price standard deviation ratios, however, which suggest much higher 
price dispersion for customers in the municipal bond market relative to 
other fixed income market segments. For retail-sized trades in 
municipal

[[Page 5515]]

securities, the Commission estimates retail-size trades have more than 
four times the amount of price dispersion as dealers experience. One 
recent academic specifically examines execution quality in the market 
for municipal bonds.\489\ Consistent with the Commission analysis in 
Table 17, the study examines bond prices for the same bond on the same 
trading day and finds significant dispersion in execution quality. 
Furthermore, the study finds differences in execution quality 
discrepancies within each broker-dealer in the same bond trading 
day.\490\
---------------------------------------------------------------------------

    \489\ See, e.g., Griffin, supra note 66.
    \490\ The study finds that the range of differences in dealer 
fixed effects from the worst to best dealer markup is consistently 
2% and retail-sized trades have, controlling for bond 
characteristics, 75 bps higher markups relative to larger trades. 
Furthermore, the study summarizes by stating that municipal bond 
``markup differences represent different prices for the same 
security from the same dealer at essentially the same time, which 
would seem to be a clear failure of pricing fairness according to 
MSRB regulations and guidance.''
---------------------------------------------------------------------------

iii. Government Securities
    The market for U.S. government securities is large both in terms of 
the outstanding debt amount and trading volume. According to the 
Treasury Department, the total amount outstanding for marketable 
Treasury securities was approximately $23.4 trillion.\491\ The 
Financial Accounts of the United States Z.1 released by the Federal 
Reserve Board shows that the amount outstanding for Agency- and GSE-
Backed Securities is about $10.9 trillion, as of the end of Q1 
2022.\492\ According to data published by SIFMA, in September 2021, the 
average daily trading volume in government securities was about $850.1 
billion, which is roughly 95 percent of all fixed income securities 
trading volume in the U.S.\493\ This includes $582.1 billion average 
daily trading volume in U.S. Treasury securities, $265.7 billion in 
Agency MBSs, and $2.4 billion in other Agency securities.
---------------------------------------------------------------------------

    \491\ See Monthly Statement of the Public Debt of the United 
States, dated July 31, 2020, available at https://fiscaldata.treasury.gov/datasets/monthly-statement-public-debt/summary-of-treasury-securities-outstanding.
    \492\ See Financial Accounts of the United States Z.1, First 
Quarter 2022, at 177, available at https://www.federalreserve.gov/releases/z1/20220609/z1.pdf.
    \493\ See SIFMA Fixed Income Trading Volume, available at 
https://www.sifma.org/resources/research/us-fixed-income-securities-statistics/. The stated figures include Treasury Securities, Agency 
MBS, and Federal Agency Securities.
---------------------------------------------------------------------------

    Government securities are traded through a diverse set of venues, 
including ATSs, RFQs, and bilateral protocols, such as voice methods. 
Government securities trading venues (e.g., ATSs, non-ATS trading 
venues (RFQ platforms), voice methods) compete on fees and trading 
protocols that help expose retail customer orders in order to attract 
order flows from retail broker-dealers. Currently, government 
securities ATSs account for a significant percentage of all U.S. 
Treasury securities trading activity reported to TRACE.\494\ The 
Commission estimates that ATSs account for approximately 37.8% percent 
of U.S. Treasury securities trading volume from April 2021 through 
March 2022. Broker-dealers utilize ATSs to source liquidity in 
government securities, including the liquidity needed to efficiently 
fill customer orders outside ATSs. The Commission understands that this 
means some portion of broker-dealer transactions on government 
securities ATSs are associated with the dealers' activity in filling 
customer orders.
---------------------------------------------------------------------------

    \494\ TRACE aggregation and analysis methods follow those used 
by Treasury market regulators and FINRA, including adjustments for 
multiple trade reports for a single transaction and counting only 
one trade report for an ATS or IDB. The regulatory version of TRACE 
was used in the analysis. A ``Give-Up'' ID is reported when a 
principal to a transaction delegates another participant to report a 
trade on its behalf. When a ``Give-Up'' ID is reported, the 
corresponding reporting or contra- party is replaced with the 
``Give-Up'' ID. This ensures that trades are attributed to the 
principals to each transaction. System control numbers are used to 
link corrected, canceled, and reversed trade messages with original 
new trade messages. In these cases, only corrected trades are kept 
and all cancellation and reversal messages and their corresponding 
new trade messages are removed. Special care must be taken when 
counting market volume. When a FINRA registered broker directly 
purchases from another FINRA member, two trade messages are created. 
If those FINRA registered brokers transact through an inter-dealer 
broker (IDB), four trade messages are created, two for the IDB and 
one for each member. In both cases, the volume from only one report 
is needed. To ensure that double counting of transactions does not 
occur, only the following trade messages are summed to calculate 
market volume: sales to non-IDB members, sales to identified 
customers, such as banks, hedge funds, asset managers, and PTFs, and 
purchases from and sales to customers and affiliates. Any trade in 
which the contra-party is an IDB is excluded. Thus, in the case of 
trades involving IDBs, only the IDBs' sale message is added to 
overall volume.
---------------------------------------------------------------------------

    Effective spreads for Treasuries in Table 17 are the lowest among 
all of the presented fixed income securities categories. Effective 
spreads for retail-sized trades are only 3 bps higher relative to 
larger trades. Agency securities exhibit relatively higher effective 
spreads in comparison to U.S. Treasury securities but remain the second 
least costly fixed income securities category in terms of transaction 
costs. There is less dispersion in execution quality for U.S. Treasury 
securities trades. Price dispersion in large size customer trades is 
small relative to that of interdealer trades (1.11) but is somewhat 
larger, albeit at an overall level less than other fixed income 
securities categories, for retail-sized trades (1.38).
iv. Market Access
    With respect to fixed income securities trading, executing brokers 
provide market access to other broker-dealers including retail broker-
dealers that qualify as introducing brokers under the FINRA/MSRB rules. 
The Commission understands executing broker-dealers that provide market 
access to retail introducing brokers under the FINRA and MSRB rules do 
not engage in conflicted transactions as defined under the proposal. 
Furthermore, the Commission understands that these executing brokers 
would consider factors, such as contemporaneous trade prices (e.g., 
interdealer prices), quotes, trade prices and quotes of similar fixed 
income securities, yield curve, matrix prices, and different types of 
trading protocols (e.g., RFQs and BWICs) in handling orders from other 
retail broker-dealers and also supply execution quality statistics to 
their customers. These executing brokers compete on the basis of fees, 
efficiency in order handling procedures, and efficiency in the 
selection of trading venues or counterparties, which determine overall 
execution quality.
v. Retail Order Handling and Execution
    Retail investors transacting in fixed income securities most often 
trade municipal securities, and to a smaller extent, corporate debt 
securities and U.S. Treasury securities. As of 2021, household holdings 
of municipal securities hovered above 40 percent \495\ of outstanding 
municipal securities,\496\ but this share has been declining.\497\ 
Households owned only roughly one percent of outstanding corporate debt 
securities in 2021.\498\ U.S. Treasury securities have slightly higher 
household participation, at approximately three percent.

[[Page 5516]]

Households own a similar amount of U.S. agency securities, also at 
approximately two percent.\499\ In general, retail investors do not 
trade in the market for other fixed income securities, such as asset-
backed securities, although broker-dealers offer trading services for 
these fixed income securities to their retail customers.
---------------------------------------------------------------------------

    \495\ See Financial Accounts of the United States Z.1, Fourth 
Quarter 2021, available at https://www.federalreserve.gov/releases/z1/20220310/z1.pdf.
    \496\ In the Z.1 Financial Accounts of the United States, 
estimates for the `household' sector include non-profits and 
domestic hedge funds. See Financial Accounts of the United States 
Z.1, Technical Q&As (September 23, 2022), available at https://www.federalreserve.gov/releases/z1/z1_technical_qa.htm.
    \497\ See Heather Gillers, Municipal Bonds Increasingly Held by 
Funds, Not Individuals, Wall St. J. (Jun. 29, 2022). Available at 
https://www.wsj.com/articles/municipal-bonds-increasingly-held-by-funds-instead-of-individuals-11656408601.
    \498\ See id.
    \499\ See id.
---------------------------------------------------------------------------

    The Commission understands that retail investors generally use one 
broker-dealer for fixed income securities trading services. Broker-
dealers execute retail customer orders mostly on a principal basis 
(e.g., riskless principal trades, internalized trades). Broker-dealers 
may execute against resting orders (e.g., limit orders displayed on 
ATSs), conduct RFQs/BWICs/OWICs,\500\ and utilize voice methods (e.g., 
telephone) in handling retail customer orders. For executing small or 
medium size retail customer orders, a broker-dealer may utilize limit 
orders or RFQs, while it might utilize voice methods for executing 
large retail customer orders or orders on illiquid fixed income 
securities. Only a few broker-dealers offer a trading service to 
represent a retail customer order in a limit order book. The Commission 
does not know the number of trading venues (e.g., ATSs, RFQ platforms, 
broker's broker platforms, single dealer platforms) to which broker-
dealers maintain access/connection for executing retail customer 
orders. The Commission also does not know the number of broker-dealers 
that access or connect to these venues through each type of interface 
(e.g., via application programming interface (API), graphical user 
interface (GUI)). Furthermore, the Commission does not know how broadly 
broker-dealers expose retail customer orders, for example, via RFQs or 
limit order books for the purpose of riskless principal transactions 
and internalization.
---------------------------------------------------------------------------

    \500\ Bid wanted in competition (BWIC) is a request for bids on 
a single security or a list of securities, submitted by a market 
participant (a broker-dealer or an institutional investor) to a 
number of broker-dealers. Offer wanted in competition (OWIC) is a 
request for offers on a single security or a list of securities, 
submitted by a market participant (a broker-dealer or an 
institutional investor) to a number of broker-dealers.
---------------------------------------------------------------------------

    The Commission understands that retail customer order handling 
practices for fixed income securities vary across retail broker-dealers 
offering different types of trading services and between the sides of 
the market (customer buy order vs. customer sell order). Some broker-
dealers offer self-directed trading to their retail customers, whereas 
for some broker-dealers, the firm's brokers handle retail customer 
orders, and some offer both self-directed and broker-assisted trading 
services. Furthermore, some broker-dealers make only internal 
inventory, only external inventory (for brokers that do not carry 
inventory), or both internal and external inventory of fixed income 
securities available for retail customer trading. The Commission 
understands that some broker-dealers whose primary service is not 
focused on fixed income securities trading outsource fixed income 
securities execution services to another broker (i.e., executing 
broker). The Commission does not know how many executing brokers 
perform fixed income securities trading services on behalf of these 
brokers. The Commission understands that executing brokers maintain 
access to multiple trading venues (e.g., ATSs, RFQ platforms, broker's 
broker platforms, single dealer platforms) and generally handle orders 
from other broker-dealers, for which they provide execution services, 
on agency or riskless principal basis.
    Some broker-dealers ingest offer quotes from internal inventory 
and/or trading venues (e.g., ATSs, electronic venues) and then display 
them to their self-directed retail customers or the firm's brokers who 
handle retail customer orders. These offer quotes displayed to self-
directed retail customers typically embed markup. Self-directed retail 
customers are able to submit buy orders to execute against offer quotes 
displayed on their systems. The Commission understands that some 
broker-dealers do not assess the competitiveness of ingested quotes or 
filter out quotes that may not be reflective of the prevailing market 
before displaying them to self-directed retail customers. Furthermore, 
the Commission does not have information about how orders submitted by 
self-directed retail customers are handled: the Commission does not 
know how a broker-dealer ensures the displayed quote, against which a 
self-directed retail customer submitted an order to execute, is 
reflective of the current market. For a broker-assisted customer buy 
trade, a broker handling a retail customer order would follow order 
handling procedures based on the FINRA/MSRB best execution rules. The 
broker may consider, among other things, prices, such as trade prices, 
trade prices of similar fixed income securities, internal and/or 
external offer quotes, offer quotes of similar fixed income securities, 
matrix prices, and prices derived from yield curve, as well as trading 
protocols, such as limit order, RFQ, and OWIC, in handling the retail 
customer buy order. The Commission understands that broker-dealers that 
carry inventory of fixed income securities may internalize retail 
customer buy orders by executing them against internal inventory after 
charging a markup. Broker-dealers may use offer quotes resting on 
trading venues and/or offer responses to RFQ/OWIC as reference prices 
to match or improve (via last-look practice) for the purpose of 
internalization.
    Only a few retail broker-dealers display external and/or internal 
bid quotes of fixed income securities to their self-directed retail 
customers or the firm's brokers who handle retail customer orders. To 
the extent that these retail broker-dealers display external and/or 
internal bid quotes of fixed income securities to their self-directed 
retail customers, self-directed retail customers are able to submit 
sell orders to execute against bid quotes displayed on their systems. 
For a broker-assisted customer sell trade, a broker handling a retail 
customer order would typically conduct RFQ or BWIC to collect multiple 
bids. A broker would also consider other pricing sources, such as trade 
prices, trade prices of similar fixed income securities, bid quotes of 
similar fixed income securities, matrix prices, and prices derived from 
yield curve in handling the retail customer sell order. For broker-
dealers that carry inventory of fixed income securities, these broker-
dealers may internalize customer sell orders by buying the bond from 
their customer into inventory after charging a markdown to have an 
opportunity to resell the bond to another customer (earning the bid-ask 
spread and markup when the broker-dealer resells the bond to another 
customer). In conducting RFQs or BWICs for the purpose of 
internalization, the Commission understands that some broker-dealers 
may use last-look to apply trade desk spreads (in the form of markdown) 
to external bids but not to internal bids, which results in more 
favorable comparisons for the internal bids, to win RFQs/BWICs.\501\
---------------------------------------------------------------------------

    \501\ See infra Section V.C.1.b for the discussion of last look 
practices and application of trade desk spreads.
---------------------------------------------------------------------------

vi. Principal Trading
    With respect to fixed income securities trading, principal 
transactions \502\ with retail customers, in which broker-dealers 
engage, include riskless principal \503\ and internalized

[[Page 5517]]

trades. With limited transparency in the fixed income securities 
markets, an internalized trade may represent conflicts of interest 
between a broker-dealer and its retail customer because the retail 
customer may not be able to assess broker-dealer compensation (e.g., 
markup/markdown). Provided that transaction costs of riskless principal 
transactions are disclosed on a post-trade basis in customer 
confirmations, these riskless principal transactions represent 
potentially fewer conflicts of interest compared to internalization. 
When the transaction costs of riskless principal transactions are 
disclosed on a pre-trade basis via a markup/markdown schedule, there 
would be even fewer conflicts of interest between retail customers and 
broker-dealers handling their orders.\504\ A significant portion of 
customer trades are executed on a principal basis. Table 18 shows that 
87% and 80% of the corporate debt securities and municipal securities 
customer par volume trades, respectively, are executed on a principal 
basis. Furthermore, Table 18 shows that riskless principal transactions 
represent 31% and 48% of principal trades in the corporate debt 
securities and municipal securities markets, respectively.\505\ An 
academic study has found a persistent increase in the frequency of 
riskless principal trades in the corporate debt securities market since 
2014.\506\
---------------------------------------------------------------------------

    \502\ Principal transactions with retail customers would be 
subject to the requirements of the proposed rule 1101(b). See also 
supra section IV.E.
    \503\ These riskless principal trades would include retail 
customer self-directed trades. Some broker-dealers execute self-
directed trades of retail customers on a riskless principal basis 
and charge markups/markdowns for their trading services. Retail 
customer self-directed trades would not be considered unsolicited 
instructions from customers under FINRA Rule 5310.08.
    \504\ Some broker-dealers disclose a markup/markdown schedule 
broken out by trade size on a pre-trade basis for retail customer 
self-directed trading on customer facing websites.
    \505\ Principal trading represents a relatively smaller 
proportion of retail-sized customer trades in the U.S. Treasury 
securities market. Commission analyses show trades executed in an 
agency capacity represent approximately 36.7% of all retail-sized 
U.S. Treasury securities trades. The commission estimates that 
riskless principal trades represent 7.9% of principal trades in the 
U.S. Treasury securities market, whereas the share of riskless 
principal trades for retail-sized trades is 10.2%.
    \506\ See O'Hara and Zhou, supra note 469. The study suggests 
that implementation of the Volcker Rule in 2014 led to a large 
increase in riskless principal capacity trading, particularly among 
bank broker-dealers who are subject to proprietary trading 
restrictions under the rule.

                                              Table 18--Fixed Income Dealer Trading Capacity and Trade Size
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Panel A: Corporate Debt Securities
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Total distinct                  Trade    Par volume (in   Par volume
        Corporate bond                Trade size                   Type                 MPIDs          Trades     percent      billions)       percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dealer Buy...................  Retail Trades (<=$100k).  Agency.................               446      782,685        7.9           11.82           0.2
                                                         Principal..............               465    1,466,145       14.8           42.63           0.6
                                                         Riskless Principal.....               474      553,908        5.6           12.39           0.2
                               Large Trades (>$100k)...  Agency.................               241      163,505        1.6          201.03           2.7
                                                         Principal..............               413    1,596,162       16.1        3,164.41          43.3
                                                         Riskless Principal.....               392      183,391        1.8          235.28           3.2
Dealer Sell..................  Retail Trades (<=$100k).  Agency.................               338    1,052,845       10.6           18.40           0.3
                                                         Principal..............               460    1,341,692       13.5           47.88           0.7
                                                         Riskless Principal.....               475      704,699        7.1           19.71           0.3
                               Large Trades (>$100k)...  Agency.................               475      172,630        1.7          213.28           2.9
                                                         Principal..............               458    1,698,176       17.1        3,140.93          43.0
                                                         Riskless Principal.....               474      209,196        2.1          203.39           2.8
                                                                                 -----------------------------------------------------------------------
    Total....................  ........................  .......................  ................    9,925,034        100           7,311           100
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Panel B: Municipal Securities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Municipal                      Trade size..............  Type...................    Total distinct       Trades      Trade      Par volume    Par volume
bond                                                                                         MPIDs                 percent   (in billions)       percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dealer Buy...................  Retail Trades (<=$100k).  Agency.................               331      263,505        5.1            6.49           0.3
                                                         Principal..............               325      737,050       14.4           24.56           1.2
                                                         Riskless Principal.....               458      847,353       16.5           24.80           1.2
                               Large Trades (>$100k)...  Agency.................               188       19,119        0.4            7.16           0.4
                                                         Principal..............               284      244,097        4.8          458.28          22.5
                                                         Riskless Principal.....               354      138,851        2.7          194.91           9.6
Dealer Sell..................  Retail Trades (<=$100k).  Agency.................               237      319,597        6.2            9.28           0.5
                                                         Principal..............               339    1,037,384       20.2           35.86           1.8
                                                         Riskless Principal.....               365      817,050       15.9           24.16           1.2
                               Large Trades (>$100k)...  Agency.................               365       34,090        0.7           16.04           0.8
                                                         Principal..............               384      558,594       10.9        1,115.44          54.7
                                                         Riskless Principal.....               440      119,447        2.3          123.77           6.1
                                                                                 -----------------------------------------------------------------------
    Total....................  ........................  .......................  ................    5,136,137        100           2,041           100
--------------------------------------------------------------------------------------------------------------------------------------------------------
This table presents summary statistics for dealer trading capacity across corporate (using FINRA TRACE data) and municipal (MSRB RTRS) fixed income
  categories from April 1, 2021 through March 31, 2022. We drop all interdealer trades keeping only customer trades from TRACE and RTRS main data files.
  We then collapse this file by Buy/Sell indicator, Agency/Principal/Riskless Principal indicator and Trade size bucket. The table reports the total
  distinct MPIDs in each group the total trade count (with percentage), total Par volume (with percentage), the weighted markup of riskless principal
  trades, and unweighted markup of riskless principal trades. Riskless principal trade indicators are not provided in the main data but are inferred
  using trade pairs matched by MPID and trade size over a 15-minute window.

    The Commission understands that there may be conflicts of interest 
in handling retail customer orders in fixed income securities markets, 
which could result in retail customers not receiving the most favorable 
prices under

[[Page 5518]]

prevailing market conditions. A broker-dealer that submits an RFQ \507\ 
on behalf of a retail customer typically has the option of selecting 
potential counterparties, from which it is requesting prices, on behalf 
of its customer. Applying counterparty filtering or limiting the number 
of counterparties in RFQs could result in less competitive prices for 
retail customer orders.\508\ An academic study links competitiveness 
(i.e., the number of bids and difference between winning and second 
best bid) directly to price improvement.\509\ Another market practice 
is price matching using the best response to RFQ via ``last look'' or 
``pennying'' for the purpose of internalization rather than customer 
benefit.\510\ Such practice would discourage market participants from 
submitting competitive prices because responders to RFQs are not 
compensated for submitting competitive quotes (i.e., selected to 
trade).
---------------------------------------------------------------------------

    \507\ The Commission understands that, in general, responding to 
RFQs is a manual process. Recently, some market participants (e.g., 
large broker-dealers) automated responses to RFQs for small order 
sizes.
    \508\ While filtering practices might be conducted by broker-
dealer for order execution efficiency purposes (i.e., evaluating 
only counterparties who provide firm indications), a broker-dealer 
must evaluate any efficiency gains directly against filtering quotes 
that may be more favorable to the end customer. Filtering 
counterparties to reduce information leakages is likely to produce 
little benefit for retail trades.
    \509\ See Terrence J. Hendershott, Dmitry Livdan & Norman 
Schuerhoff, All-to-All Liquidity in Corporate Bonds, Swiss Finance 
Institute Research Paper No. 21-43 (October 27, 2021), available at 
https://ssrn.com/abstract=3895270 or https://dx.doi.org/10.2139/ssrn.3895270.
    \510\ The Commission understands that such practice is more 
common in RFQs on the bid side of the market.
---------------------------------------------------------------------------

(c) Crypto Asset Securities
    As discussed Section III.A.3, crypto asset securities, also called 
digital asset securities, refer to a range of assets that are issued 
and/or transferred using distributed ledger technology and that meet 
the definition of a security.\511\ The Commission has provided a 
statement regarding broker-dealers engaging in custody and transactions 
of crypto asset securities.\512\ Broker-dealers transacting in crypto 
asset securities would be subject to the requirements of this 
proposal.\513\
---------------------------------------------------------------------------

    \511\ See, e.g., Report of Investigation Pursuant to Section 
21(a) of the Securities Exchange Act of 1934: The DAO, Exchange Act 
Release No. 81207 (July 25, 2017). See SEC v. W. J. Howey Co., 328 
U.S. 293 (1946). See Framework for ``Investment Contract'' Analysis 
of Digital Assets, available at https://www.sec.gov/corpfin/framework-investment-contract-analysis-digital-assets.
    \512\ See supra III.A.3. Since 2013, the Commission has brought 
a significant number of enforcement actions against issuers of 
crypto asset securities and crypto asset security market 
participants. Such enforcement investigations and actions have been 
brought for, among other things, violations of the registration 
requirements of the Securities Act of 1933 for offers and sales of 
crypto assets to the public as securities, violations of the 
exchange registration requirements of the Securities Exchange Act of 
1934 for operating trading platforms for digital assets that are 
securities, and violations of the anti-fraud and other provisions of 
Federal securities laws. See, e.g., Crypto Assets and Cyber 
Enforcement Actions, available at https://www.sec.gov/spotlight/cybersecurity-enforcement-actions for more information about these 
enforcement actions.
    \513\ See supra section III.A.3 for criteria of applicability to 
crypto asset securities.
---------------------------------------------------------------------------

    Because transaction data and other information on the crypto asset 
securities market is limited,\514\ the Commission does not have a 
complete understanding of market participants' current practices with 
respect to order handling and best execution for crypto asset 
securities, including the extent to which current practices in the 
market for crypto asset securities are consistent with FINRA Rule 
5310.\515\
---------------------------------------------------------------------------

    \514\ See, e.g., FSOC Report, supra note 95, at 119, which notes 
that the digital asset ``ecosystem is characterized by opacity that 
creates challenges for the assessment of financial stability risks. 
Collection and sharing of data, as appropriate, could help reduce 
this opacity.'' See also Raphael Auer et al., supra at note 95 
(discussing data gaps in the crypto market).
    \515\ As noted in supra Section III.A.3, circumstances have made 
it difficult for the Commission to have a full picture of the 
current market for crypto assets.
---------------------------------------------------------------------------

    Most known, off-chain trading activity for crypto asset securities 
occurs on online, openly accessible centralized platforms. These 
platforms are typically vertically integrated, combining account 
holding and trading services. The prevalence of vertically integrated 
trading platforms distinguishes the crypto asset securities market from 
other asset markets. These platforms often operate using a centralized 
limit order book, similar to exchanges for stocks and futures, but the 
volume is not audited or verified in any known manner.\516\ Some 
platforms that trade crypto asset securities are domiciled and operated 
outside the U.S.\517\ To trade on a centralized crypto asset securities 
platform, the only prerequisites for a retail investor are to sign up 
for an account with a location-accessible platform and link his or her 
bank account or digital asset wallet.\518\
---------------------------------------------------------------------------

    \516\ See, for example, Le Pennec, G., Fiedler, I., and Ante, 
L., Wash trading at cryptocurrency exchanges, 43 Finance Research 
Letters 101982 (2021).
    \517\ Some platforms that purport to be located outside of US 
nevertheless seek to cater to US customers, among other ways, by 
complying with certain requirements set by the CFTC and FinCEN. As 
of August 30, 2022, only three of the top 25 trading platforms 
(according to CoinMarketCap) have registered FINRA entities. See 
CoinMarketCap's Top Cryptocurrency Spot Exchanges, available at 
https://coinmarketcap.com/rankings/exchanges/ for further exchange 
level information.
    \518\ A digital asset wallet is a software, algorithm, or 
storage medium to store the public and private keys of the digital 
asset transactions. See, for example the definition of wallet in 
Cryptocurrencies glossary, Fidelity Investments, available at 
https://www.fidelity.ca/en/investor/cryptocurrencies-glossary/.
---------------------------------------------------------------------------

    The Commission understands that retail customers represent 
approximately 30% of trading in crypto asset securities at the largest 
centralized trading platforms.\519\ Instead of trading directly on 
centralized platforms, some retail customers may choose to place crypto 
asset securities orders with retail businesses, which could be 
affiliates of SEC registrants, fintech firms, or even payment 
applications.\520\ Those businesses typically route the order flow to 
unregistered third-party wholesalers, proprietary traders, or market 
makers for execution. Some of them provide zero or low commissions for 
trading crypto assets, and obtain all or a significant portion of their 
compensation through payments from the wholesalers for directed order 
flow. The Commission is not certain how these orders are handled (i.e., 
internalized, routed to centralized platforms, etc.), given the lack of 
reporting in the crypto asset securities market. It is possible that 
crypto asset wholesalers internalize most of the order flow they 
purchased within their own proprietary trading desks and they may route 
any remaining order flow perceived to be from informed traders to a lit 
(i.e., transparent order book driven) venue.
---------------------------------------------------------------------------

    \519\ This estimate comes from two different sources: (1) 
disclosures from Coinbase's 2021 10-K filings; and (2) a direct 
statement made by Binance US's CEO at the 2022 Georgetown Financial 
Market Quality Conference.
    \520\ Payment apps allow individuals and businesses to transfer 
funds outside of the traditional banking and payment processing 
systems. Many of these fintech or payment app entities are not 
registered with the Commission in any capacity. Thus, this activity 
is not visible to the Commission.
---------------------------------------------------------------------------

    The Commission lacks knowledge on the prevalence of broker-dealer 
activity in this market and the routing behavior of broker-dealers in 
this market. The Commission likewise has limited information about the 
pervasiveness of payment for order flow in the crypto asset securities 
market.\521\
---------------------------------------------------------------------------

    \521\ The Commission understands PFOF rates from wholesalers for 
crypto assets are significantly higher than the PFOF rates from 
wholesalers for NMS securities.
---------------------------------------------------------------------------

(d) Non-NMS Stock Equity Securities
    Non-NMS stock equity securities trade in a market that appears to 
be a hybrid of the NMS securities market and the fixed income market. 
The non-NMS stock equities market is informally

[[Page 5519]]

referred to as the ``OTC market.'' The securities traded in the non-NMS 
stock equities market are typically unregistered equities; however, 
many non-NMS equities traded were formerly registered and formerly 
exchange listed. Analogous to the fixed income market, there are some 
securities which are very liquid, and also many securities that are 
difficult to trade. For FINRA members, non-NMS stock equities trading 
is subject to FINRA Rule 5310 for execution standards; however, there 
are other standards that also affect this market (i.e., state law and/
or platform/venue requirements). Academic studies have found that 
differences in regulation can impact market quality.\522\ Trading in 
non-NMS stock equities primarily takes place via dealer-to-dealer 
trades or on one of several ATSs that specialize in non-NMS stock 
equities. In the interdealer market, broker-dealers interact directly 
with one another to fill customer orders or manage inventory. ATSs in 
the non-NMS stock equities market offer opportunities for broker-
dealers to interact in either a traditional limit order book or in a 
negotiation feature somewhat similar to RFQs in fixed income markets. 
Some ATSs in this market allow direct participation by any client, 
including retail clients; however, as the Commission understands, most 
ATSs are accessible only by dealers.
---------------------------------------------------------------------------

    \522\ See, e.g., Ulf Br[uuml]ggemann, Aditya Kaul, Christian 
Leuz & Ingrid M. Werner, The Twilight Zone: OTC Regulatory Regimes 
and Market Quality, 31 Rev. Fin. Stud. 898 (March 2018), available 
at https://doi.org/10.1093/rfs/hhx102. The authors find that 
increased regulation of OTC trading improves market quality in US 
OTC stocks.
---------------------------------------------------------------------------

    From the perspective of order handling, retail orders are processed 
in a manner very similar to NMS stocks. Retail broker-dealers that 
offer the ability \523\ to trade in the non-NMS stock equities market 
typically route an order to a wholesaler, who may internalize the 
order, or if the broker-dealer is directly connected to a non-NMS stock 
equities liquidity source, such as an ATS, may trade in a principal 
capacity with the customer. Orders that are not routed to wholesalers 
or internalized directly by the retail broker-dealer may be routed to 
an ATS to expose the order. From the Commission's analysis of non-NMS 
stock equities trades in March 2022, 63.2% of non-institutional trades 
were traded in a principal capacity. As noted in this section, some 
ATSs allow direct participation of any trader who registers and 
connects to their platform. Thus, some retail investors may be able to 
access liquidity without the aid of a broker-dealer in this market. In 
terms of pricing orders, non-NMS stock equities are not protected by a 
trade-through rule. Thus, pricing could be highly variable from one 
trade to the next in a given security. The non-NMS stock equities 
market is not required by regulation to report individual trades for 
public dissemination. This market frequently lacks quotes entirely, or 
lacks displayed quotes that are frequently updated. Despite this lack 
of mandated transparency, the largest \524\ ATS serving this market 
offers pre-trade and post-trade information (e.g., quotes, transaction 
prices).\525\
---------------------------------------------------------------------------

    \523\ This ability often costs a premium compared to trading in 
NMS stocks. Many brokers will still charge commissions for trades in 
this market.
    \524\ See ATS Transparency Data Quarterly Statistics, FINRA.org, 
available at https://www.finra.org/filing-reporting/otc-transparency/ats-quarterly-statistics. This ATS is largest by number 
of OTC Stocks traded in Q2 2022. FINRA posts records on a quarterly 
basis listing ATSs trading OTC Stocks and the share volume traded on 
the ATS.
    \525\ See Anna-Louise Jackson, What is the OTC Market?, Forbes 
Advisor (Jun. 9, 2022), available at https://www.forbes.com/advisor/investing/otc-market/. See generally, OTC Markets Group, Inc. and 
OTC Link ATS, available at https://www.otcmarkets.com/.
---------------------------------------------------------------------------

(e) Institutional Customer Order Handling
    The Commission understands that institutional investors generally 
use multiple broker-dealers for NMS stock and options trading services. 
Institutional broker-dealers typically engage in order splitting when 
handling large institutional customer orders, often utilizing SORs to 
break up large, institutional ``parent'' orders into multiple smaller 
``child'' orders.\526\ It is the Commission's understanding that when 
an institutional customer gives a large order to be executed on behalf 
of one account (e.g., a single mutual fund or pension fund), it expects 
the broker-dealer that handles and executes such large order to do so 
in a manner that ensures best execution is provided to the ``parent'' 
order. In other words, to the extent that a parent order is split into 
smaller ``child'' orders, the institutional customer expects the best 
execution analysis to evaluate whether the parent order was executed at 
the most favorable price possible under prevailing market conditions 
according to customer instructions.\527\ A significant portion of 
institutional customer orders in NMS stocks and options is not 
held.\528\ The Commission understands that institutional customer 
orders handled on a not held basis may sometimes be executed based on 
customer-specified standards that may prioritize outcomes other than 
execution prices, such as reducing the price impact of an order or 
matching volume weighted average price (VWAP) over a certain time 
horizon. An academic study looked at order routing by institutional 
brokers in the equity markets and found that institutional brokers who 
route more orders to affiliated ATSs are associated with lower 
execution quality in the form of lower fill rates and higher 
implementation shortfall costs than institution brokers that route more 
orders to non-affiliated ATSs.\529\
---------------------------------------------------------------------------

    \526\ The small-sized and mid-sized institutional customer 
orders for options are typically routed to electronic order routing 
platforms. These platforms allow order entry and provide smart 
routers and order and position management. Furthermore, these 
platforms offer customized execution algorithms on an order-by-order 
basis. See also Tyler Beason & Sunil Wahal, The Anatomy of Trading 
Algorithms, (working paper Jan. 21, 2021), available at https://ssrn.com/abstract=3497001 (retrieved from SSRN Elsevier database) 
for a discussion of institutional investor parent and child order 
handling in NMS stocks.
    \527\ See supra note 169.
    \528\ An analysis in the Rule 606 Adopting Release 83 FR 58338 
(Jan 2019), studied orders submitted from customer accounts of 120 
randomly selected NMS stocks listed on NYSE during the sample period 
between December 5, 2016 and December 9, 2016, consisting of 40 
large-cap stocks, 40 mid-cap stocks, and 40 small-cap stocks. The 
analysis found that among the orders received from the institutional 
accounts, about 69% of total shares and close to 39% of total number 
of orders in the sample are not held orders, whereas among the 
orders received from the individual accounts, about 19% of total 
shares and about 12% of total number of orders in the sample are not 
held orders. See Rule 606 Adopting Release, 83 FR 58393.
    \529\ See Anand, supra note 91.
---------------------------------------------------------------------------

    With respect to fixed income securities trading, the Commission 
understands that institutional investors, such as mutual funds, pension 
funds, insurance companies, and banks, in general directly trade with 
market participants (e.g., broker-dealers) by accessing RFQs, platform-
wide RFQs, firm quotes, and indicative quotes on trading venues. 
Institutional investors generally trade large blocks of fixed income 
securities via voice with broker-dealers. Furthermore, the Commission 
understands that institutional investors generally use multiple broker-
dealers for trading services. Based on customers' instructions, broker-
dealers may represent institutional customer orders by posting firm 
quotes on many-to-many and one-to-many platforms, or conduct RFQs on 
behalf of institutional customers.
    Institutional investors may utilize third-party vendors to conduct 
transaction cost analysis and evaluate the performance of their broker-
dealers based on those reports. If an institutional investor uses 
multiple brokers-dealers, it may direct more orders to broker-dealers 
that have better performance. This may reduce the

[[Page 5520]]

switching costs for institutional investors related to changing broker-
dealers and increase competition among broker-dealers to attract 
institutional orders.
4. Broker-Dealer Services and Revenue
    A small subset of broker-dealers hold most customer accounts and 
control a significant portion of broker-dealer assets. Table 19 shows 
statistics on broker-dealer customers and total assets. Based on FOCUS 
data as of Q2 2022, there were approximately 3,498 broker-dealers, 162 
of which carry their own customer accounts. These broker-dealers 
reported carrying over 240 million public customer accounts. Of the 
total population of these broker-dealers, approximately 2,440 reported 
retail customer activity.\530\ Of the broker-dealers that reported 
retail customer activity, 144 reported carrying their own customer 
accounts.\531\ A small set of 23 broker-dealers report more than 50 
billion dollars in total assets and 119 report between 1 billion and 50 
billion in assets. The majority of broker-dealers have less than 10 
million dollars in assets, with 1,613 having less than 1 million 
dollars in assets. However, most customer accounts are concentrated in 
the 142 large broker-dealers with 1 billion dollars or more in assets: 
119 of them are from the category of broker-dealers with assets greater 
than 1 billion dollars and less than 50 billion dollars and 23 of them 
are from the category of broker-dealers with assets greater than 50 
billion dollars. Ninety eight broker-dealers carry non-customer 
accounts for other broker-dealers. The majority of these, 66, are large 
broker-dealers with 1 billion dollars or more in assets. On average, 
they carry accounts for over 50 other broker-dealers.
---------------------------------------------------------------------------

    \530\ See item 8080 on FOCUS Report Form X-17A-5 Schedule I for 
additional information on the number of reported public customer 
accounts.
    \531\ Retail sales activity is identified from Form BR, which 
categorizes retail activity broadly (by marking the ``sales'' box) 
or narrowly (by marking the ``retail'' or ``institutional'' boxes as 
types of sales activity). We use the broad definition of sales as we 
believe that many firms will just mark ``sales'' if they have both 
retail and institutional activity. However, we note that this may 
capture some broker-dealers that do not have retail activity, 
although we are unable to estimate that frequency.

                                                             Table 19--Number of Broker-Dealers and Customer Accounts by Asset Size
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Size of broker-dealer (total assets)
                            Variable                             -------------------------------------------------------------------------------------------------------------------------------
                                                                       >50bn         1bn-50bn        500mn-1bn      100mn-500mn     10mn-100mn       1mn-10mn          <1mn            Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Panel A: All Broker-Dealers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Broker-Dealers........................................              23             119              30             136             523           1,054           1,613           3,498
Number of Broker-Dealers Registered as Investment Advisers......              11              22               4              35              95             179             134             480
Number of Broker-Dealers with Investment Adviser Affiliate......              19              74              17              87             274             401             445           1,317
Number of Broker-Dealers Carrying Own Customer Accounts.........              19              59               8              22              26              21               7             162
Total Number of Public Customer Accounts........................      75,834,917     153,216,558       6,045,929       3,555,383         606,606         887,833           6,668     240,153,894
Total Number of Omnibus Accounts................................         421,583             525              12               4              33              19               0         422,176
Number of Broker-Dealers Carrying Non-Customer Accounts.........              18              48               7               9              11               5               0              98
Avg Number Other Broker-Dealers Carrying Customer Accounts For              57.5            50.7            30.5             9.0             2.5             1.0  ..............  ..............
 Fully Disclosed Basis..........................................
Avg Number Other Broker-Dealers Carrying Accounts for Omnibus               19.2            26.3            15.3             3.5             2.5  ..............             1.0  ..............
 Basis..........................................................
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                                 Panel B: Retail Broker-Dealers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Retail Broker-Dealers.................................              19              76              21             109             393             750           1,072           2,440
Number of Broker-Dealers Registered as Investment Advisers......              11              21               4              34              92             171             128             461
Number of Broker-Dealers with Investment Adviser Affiliate......              17              56              12              76             228             331             350           1,070
Number of Broker-Dealers Carrying Own Customer Accounts.........              18              51               7              20              22              19               7             144
Total Number of Public Customer Accounts........................      75,829,888     142,899,902       6,012,125       2,641,879         606,447         880,021           6,668     228,876,930
Total Number of Omnibus Accounts................................         421,583             524              12               1              33              15               0         422,168
Number of Broker-Dealers Carrying Non-Customer Accounts.........              17              44               7               8               8               5               0              89
Avg Number Other Broker-Dealers Carrying Customer Accounts For              60.9            55.4            30.5             8.0             2.0             1.0  ..............  ..............
 Fully Disclosed Basis..........................................

[[Page 5521]]

 
Avg Number Other Broker-Dealers Carrying Accounts for Omnibus               19.2            28.5            15.3             2.0             2.5  ..............             1.0  ..............
 Basis..........................................................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
This table summarizes the number broker-dealers (Panel A) and retail broker-dealers (Panel B), their investment adviser status, their customer account carrying status, and the number of
  customer and omnibus accounts they carry broken out into groups based on their total assets. The number of Broker-dealers comprises the broker-dealers that had a valid FOCUS Report for Q2
  2022 and a valid Form Custody and Form BD for Q2 2022. Total Assets are estimated by Total Assets (allowable and non-allowable) from Part II/IIA of the FOCUS filings (Form X-17A-5 Part II/
  IIA) from Q4 2021 and correspond to balance sheet total assets for the broker-dealer. The numbers of public and omnibus accounts are from FOCUS Schedule I from Q4 2021. Broker-dealer
  registration as an investment adviser is from Form Custody from Q2 2022 and includes broker-dealers that are registered as an investment adviser with the Commission or with a state. Broker-
  dealers carrying customer accounts and non-customer accounts is identified from Form Custody from Q2 2022. Average number of other broker-dealer carrying accounts on a fully disclosed or
  omnibus basis is the average number of other broker-dealers for which a broker-dealer carrying non-customer accounts holds accounts for and it is determined from Form Custody from Q2 2022.
  Retail brokers are identified based on retail sales activity from Form BR in Q2 2022, which categorizes retail activity broadly (by marking the ``sales'' box) or narrowly (by marking the
  ``retail'' or ``institutional'' boxes as types of sales activity). We use the broad definition of sales as we believe that many firms will just mark ``sales'' if they have both retail and
  institutional activity. However, we note that this may capture some broker-dealers that do not have retail activity, although we are unable to estimate how often it does so.

    A small number of broker-dealers with more than 1 billion dollars 
in revenue account for the majority of broker-dealer assets, revenue, 
and expenses. Table 20 shows statistics on total assets, total 
revenues, total expenses, and net income based on broker-dealer asset 
size. The top 23 brokers, each with assets over $50 billion, have more 
than 3.8 trillion dollars in assets out of a total of 5.4 trillion 
dollars across all broker-dealers. The top 142 brokers account for the 
majority of revenue, earning over 71 billion dollars in Q2 2022 out of 
total of 97 billion dollars for all broker-dealers. Similarly, the top 
142 broker-dealers accounted for the majority of expenses and net 
income.

                                                             Table 20--Assets, Revenue and Expenses of Broker-Dealers by Asset Size
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                    Size of broker-dealer (total assets)
                 Variable                             Statistic            ---------------------------------------------------------------------------------------------------------------------
                                                                                  >50bn             1bn-50bn         500mn-1bn      100mn-500mn     10mn-100mn       1mn-10mn          <1mn
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                      Total Number of Broker-Dealers                                       23                119              30             136             523           1,054           1,613
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Assets ($1,000s)...................  Mean...........................       $168,631,851        $12,226,934        $737,161        $207,753         $34,340          $3,580            $299
                                           Median.........................        $85,750,282         $6,628,584        $737,598        $181,812         $25,645          $2,757            $207
                                           Total..........................     $3,878,532,570     $1,455,005,108     $22,114,818     $28,254,392     $17,959,877      $3,773,694        $481,530
                                                                           ---------------------------------------------------------------------------------------------------------------------
Total Revenue ($1,000s)..................  Mean...........................         $1,495,923           $315,344         $84,500         $76,247         $17,310          $2,622            $378
                                           Median.........................           $841,321            $81,517         $25,232         $30,703          $7,638          $1,396             $99
                                           Total..........................        $34,406,232        $37,525,938      $2,535,011     $10,369,565      $9,036,076      $2,695,264        $508,546
                                                                           ---------------------------------------------------------------------------------------------------------------------
Total Expenses ($1,000s).................  Mean...........................         $1,263,904           $283,825         $75,088         $66,749         $15,760          $2,349            $293
                                           Median.........................           $973,919            $67,638         $22,577         $25,153          $6,213          $1,064             $78
                                           Total..........................        $29,069,788        $33,775,125      $2,252,648      $9,077,875      $8,242,340      $2,473,435        $470,898
                                                                           ---------------------------------------------------------------------------------------------------------------------
Net Income ($1,000s).....................  Mean...........................           $219,406            $30,564         $12,941          $9,243          $1,470            $206             $24
                                           Median.........................            $33,372             $5,377          $4,553          $3,032            $417             $29             -$6
                                           Total..........................         $5,046,337         $3,637,137        $388,236      $1,257,046        $769,031        $217,453         $37,856
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
This table estimates average, median and total values for broker-dealer assets, total revenue, total expenses, and net income broken out into groups based on their total assets. Number of
  Broker-dealers is based on the broker-dealers that had a valid FOCUS Report for Q2 2022. Statistics for Total Assets (allowable and non-allowable), Total Revenue, Total Expenses, and Net
  Income (after Federal income taxes) are computed from the corresponding items in Part II and Part IIA of the FOCUS filings (Form X-17A-5 Part II/IIA) from Q2 2022.

    From the perspective of the number of individual customer accounts, 
the broker-dealer market appears to be somewhat concentrated, with the 
top four brokers handling about 106 million accounts, equal to 44% of 
the industry, while the top eight firms have about 159 million 
accounts, or 66% of the industry. From the perspective of total assets, 
the level of concentration is slighter lower, with the top four 
brokerages having a total of around $2.1 trillion, equal to 39% of all 
assets held by broker-dealers, and the top eight firms about $2.8 
trillion, or 52% of total industry assets. The broker-dealer industry 
looks less concentrated from the perspective of revenue, with the top 
four firms earning more than $18 billion, or 19% of the market, and the 
top eight firms earning $28 billion, or 29% of total industry revenues.

              Table 21--Broker Dealer Market Concentration--Assets, Revenues, and Customer Accounts
----------------------------------------------------------------------------------------------------------------
                                                         Total assets        Total revenue
                                                           (1,000s)            (1,000s)        Customer accounts
----------------------------------------------------------------------------------------------------------------
4-firm total........................................      $2,112,685,000         $18,039,203         106,463,445
8-firm total........................................      $2,834,007,000         $28,402,354         158,609,487
All broker dealers..................................      $5,406,121,988         $97,076,632         240,153,894
4-firm concentration................................              39.08%              18.58%              44.33%

[[Page 5522]]

 
8-firm concentration................................              52.42%              29.26%              66.04%
----------------------------------------------------------------------------------------------------------------
This table uses FOCUS data analyzed in the previous table to calculate the market share of broker dealers based
  on firm total assets, total revenue, and customer accounts. The sum of the top four and eight firms for each
  of these variables is compared to the sum of all broker dealers for each of these three variables (assets,
  revenue, total accounts) that submitted a Form FOCUS PART II for Q2 2022. Total accounts are from FOCUS Report
  Schedule I for Q4-2021.

    There is significant variation in the sources of broker-dealer 
revenue. Table 22 reports sources of broker-dealer revenue along with 
the revenue as a percentage of the broker-dealer's total revenue in Q1 
2022. A broker-dealer reports a source of revenue on its supplemental 
statement of income (SSOI) if it is more than 5% of its total revenue. 
Larger broker-dealers tend to have more diversified sources of revenue 
than smaller broker-dealers, with the majority of broker-dealers with 1 
billion or more in assets reporting earning revenue in a number of 
categories. Smaller broker-dealers appear to earn more of their revenue 
from a limited number of sources, with some broker-dealers with under 
10 million dollars in assets on average earning more than 50% of their 
revenue from one source. Larger broker-dealers appear to earn more 
money from fees and interest, rebate, and dividend income. Smaller 
broker-dealers appear to earn more money from fees and commissions and 
other revenue sources.

                                             Table 22--Sources of Broker-Dealer Revenue as a Percentage of Broker-Dealer Total Revenue by Asset Size
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                       Size of Broker-Dealer (Total Assets)
                Revenue source                             Statistic             ---------------------------------------------------------------------------------------------------------------
                                                                                       >50bn         1bn-50bn        500mn-1bn      100mn-500mn     10mn-100mn       1mn-10mn          <1mn
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                     Total Broker-Dealers Reporting Revenue                                   21             100              27             127             511           1,042           1,588
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Commissions............................  Count............................              18              69              21              86             299             518             428
                                               Mean.............................          10.75%           4.28%          26.47%          27.05%          30.03%          29.40%          26.48%
Revenue from Sale of Investment Company        Count............................              11              33               6              54             166             305             375
 Shares.                                       Mean.............................           0.79%           3.53%           0.40%           6.97%           6.41%           6.39%          13.80%
Total Revenue From Sale of Insurance Based     Count............................               9              34               5              44             145             278             320
 Products.                                     Mean.............................           0.22%           3.08%           7.65%          17.10%          24.81%          22.93%          30.67%
Total Net Gains or Losses on Principal         Count............................              18              80              19              66             201             224              86
 Trading.                                      Mean.............................           4.40%           7.81%          16.42%           3.76%          20.16%          29.47%          50.26%
Capital Gains (Losses on Firm Investments)...  Count............................               8              42              11              43             123             189             141
                                               Mean.............................          -3.10%          -3.41%          14.38%          -7.26%          -4.97%          19.70%           5.34%
Total Interest/Rebate/Dividend Income........  Count............................              21              90              22             109             370             604             520
                                               Mean.............................          43.20%          31.27%          14.99%           5.42%           4.54%           2.68%          14.05%
Total Revenue From Underwritings and Selling   Count............................              17              65              12              62             187             272             231
 Group Participation.                          Mean.............................           9.49%          10.67%          14.94%          18.03%          37.33%          39.07%          46.40%
Total Fees Earned............................  Count............................              19              82              24             114             434             812             897
                                               Mean.............................          32.01%          37.00%          42.37%          58.92%          52.46%          56.79%          69.35%
Other Revenue................................  Count............................              17              75              18              85             307             513             469
                                               Mean.............................           3.37%           1.20%           2.88%           8.96%           7.47%          16.93%          30.82%
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
This table estimates the number of broker-dealers reporting different sources of revenue and the average percentage of the reported revenue source as a percentage of broker-dealer total
  revenue for Q2 2022 broken out into groups based on the broker-dealer's total assets. The different sources of revenue and total revenue are reported by each broker-dealer during Q2 2022 in
  their FINRA Supplemental Statement of Income Form (Form SSOI). Form SSOI does not require a broker-dealer to report a revenue or expense section source if the revenue or expenses for that
  section is less than the greater of $5,000 or 5% of the broker-dealer's total revenue or total expenses, as applicable. Total Assets are estimated by Total Assets (allowable and non-
  allowable) from Part II of the FOCUS filings (Form X-17A-5 Part II) from Q2 2022 and correspond to balance sheet total assets for the broker-dealer.

    Retail brokers compete for customers by providing a range of 
services that assist their clients in transacting in securities 
including stocks, bonds, mutual funds, ETFs, options, futures, and 
crypto asset securities. Retail broker services can broadly be divided 
into ``discount brokers'' and ``full-service'' brokers. Discount 
brokers typically provide commission-free trading for online purchases 
of stocks and ETFs, but often charge fees for purchases of other 
securities, such as mutual funds, options, and futures. Some discount 
brokers' affiliates manage proprietary mutual funds and ETFs, which 
earn them management fees paid by the investors that purchase these 
funds. Compared to discount brokers, ``full-service'' brokers charge 
higher commissions that may include compensations for other services, 
such as investment research and personalized financial guidance.
    Some brokers seek to differentiate themselves from other broker-
dealers by providing increased access to crypto asset securities 
futures, forex, or fractional share trading. Brokers also distinguish 
themselves by the accessibility and functionality of their trading 
platform, which can be geared towards less experienced or more 
sophisticated investors. Discount retail brokers can also differentiate 
themselves by providing more extensive customer service as well as 
tools for research and education on financial markets. Full-service 
brokers compete by developing a personalized broker-customer 
relationship and providing guidance based on the detailed knowledge of 
the customer's financial goals.
    Broker-dealers may incur costs \532\ or earn rebates in seeking to 
fill their

[[Page 5523]]

customers' orders. These costs and rebates may be passed on to 
customers in whole or in part. Some of these costs are indirect: an 
illiquid or unlisted security may require the broker to search for 
liquidity either by attempting multiple routings to find a 
counterparty, or by contacting broker-dealers that may formally (in 
association with an ATS that specializes in unlisted securities) or 
informally make markets in unlisted or hard to trade securities. For 
some unlisted securities, there may be no market maker expected to 
continually provide two-sided quotes.
---------------------------------------------------------------------------

    \532\ Some exchanges pay rebates to orders that either provide 
or remove liquidity from their limit order books. Some trading 
venues charge fees to one or both counterparties to the trade.
---------------------------------------------------------------------------

C. Economic Effects and Effects on Efficiency, Competition, and Capital 
Formation

    The Commission preliminarily believes that the proposed 
requirements with respect to introducing brokers could result in better 
execution quality for retail customer orders to the extent that the 
proposal leads to changes in broker-dealers' order handling practices. 
Furthermore, the proposal would enable the Commission to exercise 
additional enforcement capabilities \533\ that the Commission believes 
would enhance investor protection and improve specific deterrence.\534\ 
The Commission also believes that the documentation requirement with 
respect to conflicted transactions could help enhance regulatory 
oversight, as well as promote broker-dealer compliance, and thus, 
improve investor protection to the extent that the documented 
information includes information or data that is not currently 
documented nor available through public or regulatory data sources. 
However, the Commission lacks detailed data on broker-dealers' current 
order handling practices and documentation practices that would allow 
it to predict the extent of changes as a result of this proposal.\535\ 
The Commission therefore cannot ascertain the extent to which these 
benefits would be realized, as discussed below.
---------------------------------------------------------------------------

    \533\ This full complement of enforcement capabilities is not 
available to the Commission to enforce FINRA rules.
    \534\ See also infra section V.C.1.
    \535\ Considering broker-dealers are diverse in business models 
and practices, the Commission lacks quantifiable data that 
summarizes how order handling data are currently documented, which 
might serve as a baseline in assessing the effects of the proposed 
rule. While CAT includes routing data for NMS securities, no similar 
database exists for fixed income or other assets covered by the 
proposed rules. Although the Commission could discuss current 
routing practices through an analysis of CAT data, it would not 
capture the information set that a broker-dealer evaluated in making 
its routing decisions, such as what pricing information it had when 
it made the routing choice, what venues were considered for the 
order, or why those venues were considered for the order. The 
Commission also has no information regarding the broker-dealer's 
assessment as to how the specific customer and order characteristics 
affected its decision to handle a customer order in a certain way. 
Based on its experience, the Commission believes that some larger 
broker-dealers already maintain documentation on their transactions 
that exceeds what would be required under the proposed rules, but 
the Commission does not know the extent to which other broker-
dealers also maintain such documentation. Consequently, some broker-
dealers would incur fewer costs (and their compliance would result 
in fewer benefits) than others.
---------------------------------------------------------------------------

    The Commission preliminarily believes that the proposal would 
result in costs associated with reviewing, updating, and establishing 
policies and procedures, and to the extent that the proposal leads to 
changes in broker-dealers' order handling practices, could result in 
costs associated with implementing changes to order handling practices 
according to the updated policies and procedures. The proposed 
requirements for broker-dealers that engage in conflicted transactions 
could result in further changes to order handling practices, but the 
extent of those changes is unknown. Due to the diversity of broker-
dealer business models and operations and the lack of quantifiable data 
on how practices vary across broker-dealers, the Commission cannot 
reasonably estimate how many of these broker-dealers would choose to 
de-conflict \536\ to avoid the costs associated with the proposed 
requirements that apply solely to conflicted transactions.
---------------------------------------------------------------------------

    \536\ To de-conflict, a broker-dealer might need to deal with 
the treatment of exchange rebates, payment for order flow, or the 
nature of its executing brokers' business (i.e., principal versus 
agency capacity), among other factors.
---------------------------------------------------------------------------

    The Commission preliminarily believes that the proposal could 
promote competition in the market for trading services (e.g., 
exchanges, ATSs, non-ATS trading venues) and also in the market for 
market access. However, the Commission believes that the proposal could 
have mixed effects on competition in the market for broker-dealer 
services. While it could promote competition among broker-dealers, 
especially on the basis of execution quality, it could also result in 
higher barriers to entry and potential exit of small broker-dealers.
    The Commission assesses the economic effects of the proposed 
amendments in NMS stocks relative to a regulatory baseline in NMS 
stocks that includes the implementation of the MDI Rules.\537\ 
Furthermore, the Commission's analysis reflects the Commission's 
assessment of the anticipated economic effects, including potentially 
countervailing or confounding economic effects from the MDI Rules in 
NMS stocks.\538\ However, given that the MDI Rules have not yet been 
implemented, they have not affected market practice and therefore data 
that would be required for a comprehensive quantitative analysis of the 
economic effects in NMS stocks that includes the effects of the MDI 
Rules is not available. It is possible that the economic effects in NMS 
stocks relative to the baseline could be different once the MDI Rules 
are implemented.
---------------------------------------------------------------------------

    \537\ See supra section V.B.3.(a).d.
    \538\ See id. for a discussion of the Commission's anticipated 
economic effects of the MDI Rules as stated in the MDI Adopting 
Release.
---------------------------------------------------------------------------

1. Benefits
    The Commission preliminarily believes the proposal, which 
incorporates and goes beyond the existing best execution regulatory 
regime set forth by FINRA and MSRB, could promote investor protection 
(e.g., better execution quality for retail customer orders) by 
facilitating regulatory oversight and enforcement.\539\ The Commission 
believes that benefits could result from, among other things, the 
requirements with respect to introducing brokers, the documentation 
requirements for conflicted transactions, and additional enforcement 
capabilities of the Commission.
---------------------------------------------------------------------------

    \539\ See the discussion of enforcement mechanisms in supra 
section V.B.1.(a). In enforcement situations limited to violations 
of proposed Regulation Best Execution, the Commission would gain the 
ability to (i) obtain civil money penalties against defendants in 
injunctive actions; (ii) order respondents to cease-and-desist and 
obtain related relief and sanctions; and (iii) in situations limited 
to violations of proposed Regulation Best Execution involving 
broker-dealers and associated persons that would not potentially be 
subject to MSRB best execution rules, obtain relief available under 
Sections 15(b)(4) and (6).
---------------------------------------------------------------------------

    The Commission preliminarily believes that the proposal would 
enhance investor protection and improve retail customer order execution 
quality to the extent that the proposal improves broker-dealers' order 
handling practices. Specifically, broker-dealers could improve their 
customer order handling practices, resulting from documentation, 
updates and reviews of both existing and the best execution policies 
and procedures that would be required under the proposal including the 
reductions in conflicts of interest when handling retail customer 
orders. The Commission also believes the proposal would enhance 
investor protection by enabling the Commission to exercise additional 
enforcement capabilities and improving specific deterrence through the 
ability to bring

[[Page 5524]]

injunctive actions for violations of this rule, issue cease-and-desist 
proceedings for allegations of violations of this rule, and, among 
other things, order remedial actions and sanctions against a broader 
group of registered persons pursuant to Exchange Act Section 15(b)(4) 
for willful violations of this rule. Furthermore, improvements in 
investor protection could result from increased documentation 
requirements for conflicted transactions, particularly in fixed income 
and thinly traded non-NMS stock equity securities. The extent of this 
improvement depends on whether the documented information include 
information or data that is neither currently documented nor available 
through public or regulatory data sources. The proposed documentation 
requirement would help facilitate the Commission's and SRO's 
enforcement and examinations, as well as promote broker-dealer 
compliance, and thus, result in better investor protection.
    The Commission preliminarily believes the proposal could lead to 
changes in order handling practices, and in turn, improve the execution 
quality of retail customer orders, through four mechanisms. First, the 
proposal would require that introducing brokers that route their orders 
to executing brokers compare that broker's execution quality to what 
might have been received from competing executing brokers.\540\ The 
Commission believes that some broker-dealers that currently rely on 
executing brokers already compare their executing broker's execution 
quality to the execution quality of competing executing brokers, so 
these broker-dealers are unlikely to be affected by this element of the 
proposal. Introducing brokers that do not currently implement rigorous 
comparison of executing brokers are expected to adjust their routing 
practices in response to this newly required analysis, or justify in 
their policies and procedures how they fulfill their best execution 
duties in light of these analyses. Because FINRA's and MSRB's current 
policies and procedures requirements do not require this level of 
detail, the Commission cannot ascertain how many brokers already 
conduct such a comparison with alternative executing brokers and how 
many would need to make adjustments. However, any such adjustments 
could improve the execution quality that retail customers receive for 
their orders.
---------------------------------------------------------------------------

    \540\ While FINRA Rule 5310.09(c) allows an introducing broker, 
instead of conducting its own regular and rigorous review, to review 
the methodology and results of its executing broker's regular and 
rigorous review of its execution quality on a quarterly basis, it 
does not specifically require the introducing broker to compare the 
execution quality of its executing broker to what it would have 
received from other executing brokers. See supra section V.B.2.(a) 
for a discussion on introducing broker best execution review 
requirements. See also FINRA Rule 5310.09(c), Regular and Rigorous 
Review of Execution Quality.
---------------------------------------------------------------------------

    Second, the Commission preliminarily believes that the proposal's 
heightened standards for conflicted transactions could lead to improved 
prices for retail customers.\541\ Under the proposal, broker-dealers 
that handle retail customer orders and that choose to accept PFOF, to 
participate in transactions on a principal basis, or to route to 
affiliated broker-dealers that execute orders would be subject to 
heightened standards. In response to this proposed requirement, the 
Commission believes that some broker-dealers that route to executing 
broker dealers that engage in conflicted transactions could seek to 
remove such conflicts, for example by no longer accepting payment for 
order flow or selecting executing brokers that do not execute on a 
principal basis.\542\ The Commission also believes that executing 
brokers (e.g., wholesalers) in NMS stocks and options could adjust 
their order handling practices under the proposal in anticipation of 
increased execution quality analysis by retail broker-dealers, from 
whom they receive order flow. These executing brokers in NMS stocks and 
options that routinely pay for retail order flow and/or engage with it 
on a principal basis could adjust their order handling practices to 
access additional venues to seek midpoint liquidity, additional price 
improvement, or offer more price improvement to the orders routed by 
those retail broker-dealers.\543\ Although the Commission cannot 
quantify the degree of reduction in conflicted transactions that would 
occur under the proposal because it cannot predict how individual 
broker-dealers would adjust their business models to comply with the 
proposal, the Commission preliminarily believes that any resulting 
reduction in conflicted transactions could improve the prices retail 
customers realize for their transactions. That said, the Commission 
acknowledges that some retail customers could pay more for their 
transactions when in reducing its conflicted transactions, a broker-
dealer changes order handling practices to route to destinations, which 
may not always provide the same price improvement that was previously 
realized for conflicted transactions.
---------------------------------------------------------------------------

    \541\ See supra section IV.C about the discussion for the 
requirements involving conflicted transactions for retail orders and 
supra sections V.C.2.a and V.C.2.b.i describing the conflicts of 
interest in retail order handling.
    \542\ See infra section V.C.2 for the discussion about costs of 
broker-dealer efforts to de-conflict versus comply with requirements 
of conflicted transactions.
    \543\ See infra section V.C.2.b for the discussion of wholesaler 
costs with respect to conflicted transactions.
---------------------------------------------------------------------------

    Third, the Commission preliminarily believes the proposal could 
result in better execution quality for retail customer orders to the 
extent that the proposal leads to changes in broker-dealers' order 
handling practices. Compared to the FINRA and MSRB rules, the 
Commission believes that the proposal would require greater specificity 
in the policies and procedures with respect to best execution. Upon 
reviewing its existing policies and procedures, a broker-dealer could 
be required to update its policies and procedures to comply with the 
proposed requirements. To the extent that updated policies and 
procedures would require corresponding changes in order handling 
practices, the broker-dealer would adjust its order handling practices 
for retail customer orders. The Commission acknowledges that many 
broker-dealers currently may have order handling practices that are 
consistent with the requirements under the proposed Rule 1101(a).\544\ 
In this case, the Commission does not expect the order handling 
practices of these broker-dealers to change.\545\ On the other hand, 
many broker-dealers could be required to adjust order handling 
practices, including conducting more detailed reviews of their 
practices, under the proposal. However, the Commission lacks detailed 
information on broker-dealers' current policies and procedures with 
respect to best execution standards and order handling practices to 
determine how many broker-dealers would be required to change their 
order handling practices under the proposal.\546\
---------------------------------------------------------------------------

    \544\ See infra section IX for proposed Rule 1101(a).
    \545\ As previously discussed in supra section IV.B, the factors 
that must be included in a broker-dealer's policies and procedures 
under proposed Rule 1101(a) are generally consistent with the 
factors that FINRA and the MSRB have identified as relevant to a 
broker-dealer's best execution determinations.
    \546\ See supra note 535 for the discussion about data 
availability on broker-dealers' current order handling practices.
---------------------------------------------------------------------------

    Fourth, the Commission preliminarily believes that the proposal 
could help ensure the effectiveness of broker-dealers' best execution 
policies and procedures, and thus, result in better execution quality 
for retail customer orders to the extent that the requirements under 
the proposed Rule 1102 enhances broker-dealers' current review process 
with respect to order

[[Page 5525]]

handling practices. The Commission acknowledges that many broker-
dealers currently may conduct reviews that are consistent with the 
requirements under the proposed Rule 1102, which includes a specific 
requirement to review order handling practices. In this case, the 
Commission does not expect the order handling practices of these 
broker-dealers to change, and there would thus be no change in 
execution quality for their retail customer orders.
    The Commission does not believe that the order handling practices 
or execution quality of institutional customer orders would be 
significantly impacted by the proposal. The Commission understands that 
institutional customers often utilize multiple broker-dealers in the 
handling of their orders, which lowers the costs of switching brokers 
if they exhibit poor execution quality. Furthermore, in general, the 
Commission believes that there is less conflict in institutional 
customer order handling because institutional customers have better 
access (compared to retail customers) to data, which they utilize to 
monitor and analyze the execution quality that various broker-dealers 
offer.\547\ The Commission believes that (compared to retail brokers) 
institutional monitoring and lower switching costs encourage broker-
dealers to provide increased execution quality in order to compete to 
attract institutional orders. Thus, the Commission does not expect that 
broker-dealers would make significant adjustments to their order 
handling practices for institutional customer orders under the 
proposal.
---------------------------------------------------------------------------

    \547\ The Commission understands that institutional customers 
also utilize third-party vendors to conduct transaction cost 
analysis and evaluate the performance of their broker-dealers based 
on those reports. See also supra section V.B.3.e) for a discussion 
about institutional customer order handling practices.
---------------------------------------------------------------------------

(a) NMS Stocks and Options
    The Commission preliminarily believes the proposed documentation 
requirement with respect to conflicted transactions could result in 
benefits in the NMS stock and options markets. However, a significant 
amount of information that would help reconstruct market conditions 
(e.g., NBBO, size at NBBO, trade prices, volume, order level 
information in CAT) around the time of conflicted transactions is 
currently available through public and regulatory data sources (e.g., 
SIP, CAT, OPRA), so those benefits may be small. To the extent that the 
documented information includes information that is not currently 
documented nor available through public or regulatory data sources , 
the proposed documentation requirement would help promote broker-dealer 
compliance and facilitate enforcement and examination, and thus, result 
in better investor protection. Furthermore, the Commission believes 
that any additional documentation could enhance internal review process 
(e.g., a review by the best execution committee). Documented 
information could inform broker-dealers in adjusting order handling 
procedures with respect to conflicted transactions, which would result 
in better execution quality.
    The Commission preliminarily believes that retail customer 
execution prices in NMS stocks and options could improve to the extent 
that there is a trade-off between the amount of PFOF a retail broker 
receives and the price improvement, which wholesalers provide to its 
customers' orders.\548\ Under the proposal, retail broker-dealers 
accepting PFOF would be subject to the proposed Rule 1101(b), which 
would require a broker-dealer to establish additional policies and 
procedures and retain certain documentation with respect to conflicted 
transactions.\549\ The proposed Rule 1101(b) would also require them to 
document any arrangement, whether written or oral, concerning PFOF, 
including the parties to the arrangement, all qualitative and 
quantitative terms concerning the arrangement, and the date and terms 
of any changes to the arrangement. Additionally, broker-dealers that 
accept PFOF would not qualify as introducing brokers under the proposed 
Rule 1101(d), which otherwise would permit these broker-dealers to rely 
on their executing broker's compliance with the proposed Rules 1101(a), 
(b), and (c).\550\ Some broker-dealers, particularly those with 
business models that do not rely extensively on payment for retail 
order flow, could elect to pass any PFOF on to customers rather than 
complying with provisions of the proposal that apply only to broker-
dealers that do not qualify for the relief provided to introducing 
brokers.\551\
---------------------------------------------------------------------------

    \548\ See supra section V.B.3.(a).b.
    \549\ See supra section IV.C.
    \550\ Under proposed Rule 1101(d), principal trades by an 
executing broker with the introducing broker's customer to fill 
fractional share orders in NMS stocks would be considered to be 
handled on an agency basis, and thus, allow it to rely on its 
executing broker's compliance with the proposed Rules 1101(a), (b), 
and (c). See supra section IV.E. for a discussion on proposed Rule 
1101(d) and supra section V.B.3.(a).i.d for additional discussion on 
fractional share orders in NMS stocks.
    \551\ As explained in supra note 183, when all payment for order 
flow for a customer order from a particular market is passed through 
to the customer and the broker-dealer retains no part of the payment 
for order flow associated with that customer order, the broker-
dealer would not be engaging in a conflicted transaction under 
proposed Rule 1101(b) with respect to that customer order. See also 
infra section V.C.2.a for the discussion about the costs of broker-
dealer efforts to de-conflict versus comply with requirements of 
conflicted transactions.
---------------------------------------------------------------------------

    The requirement for a broker-dealer to engage in additional due 
diligence if it engages in a conflicted transaction for or with a 
retail customer order could improve execution quality to the extent the 
requirement promotes competition between broker-dealers to provide best 
execution to retail broker-dealers that continue to accept PFOF. 
Because the proposal would require these retail broker-dealers to 
document their compliance with the best execution standard for 
conflicted transactions, including all efforts to enforce their best 
execution policies and procedures for conflicted transactions and the 
basis and information relied on for their determinations that such 
conflicted transactions would comply with the best execution standard, 
broker-dealers that pay for order flow could be incentivized to both 
improve the execution prices of orders routed to them for execution and 
to provide more information to broker-dealers routing to them, allowing 
those broker-dealers to improve their customers' execution prices and 
more easily comply with the provisions of the proposal that require 
more extensive documentation of their best execution standards.
    To the extent broker-dealers that receive PFOF change their order 
handling practices to comply with the heightened standards in the 
proposal, these changes are likely to reduce the profitability of their 
business model because the orders they are routing may be more likely 
to be executed on venues that charge for providing liquidity, or do not 
provide compensation for order flow, or that provide compensation that 
is less than what these broker-dealers could realize by internalizing 
order flow, or routing elsewhere under existing procedures. Faced with 
potentially lower revenues from changing order handling procedures, 
broker-dealers that pay to receive order flow could choose to make few 
or no changes to their routing practices and could instead focus on 
maintaining arrangements with specific broker-dealers \552\ (from whom 
they are already

[[Page 5526]]

receiving orders or could determine that their current PFOF arrangement 
meets the requirements under the proposal) to meet their obligations 
under the proposal without significant changes. Some broker-dealers 
that make payments for order flow could compete on the basis of 
providing service and information to their broker-dealer customers that 
help those broker-dealers satisfy their own requirements under the 
proposal, such as providing additional information on routing practices 
and data on how they provide the best execution possible. Competition 
between these broker-dealers could foster innovation that improves 
prices received by retail customer orders executed under PFOF 
agreements.
---------------------------------------------------------------------------

    \552\ See infra section V.C.2.a for the discussion of how 
broker-dealers who route to other broker-dealers for execution may 
choose to comply with the proposal. The Commission recognizes that 
it is possible under the proposal that these broker dealers would 
reduce their payments for order flow because broker-dealers who 
route orders to them may choose to stop accepting PFOF in order to 
meet the definition of ``introducing broker'' in proposed Rule 
1101(d). However, the Commission preliminarily believes this would 
not increase the profitability of broker-dealers that currently pay 
to receive order flow because presumably their payments to secure 
order flow are less than the profits they earn to execute that order 
flow often in a principal capacity.
---------------------------------------------------------------------------

    With respect to listed options, the Commission preliminarily 
believes that retail order execution quality could improve to the 
extent that the proposal results in broker-dealers adjusting their 
customer order handling practices consistent with the heightened 
standards required of conflicted transactions.\553\ Some broker-dealers 
that handle retail options orders and engage in conflicted 
transactions, such as executing orders on a principal basis or routing 
to affiliates, may adjust their routing practices to access additional 
venues or consider additional opportunities for price improvement. This 
could be driven both by the requirements of proposed Rule 1101(b) to 
consider additional opportunities for price improvement and in 
anticipation of increased execution quality analysis by other broker-
dealers, for whom they route orders. For example, these broker-dealers 
may adjust their routing practices to further consider the 
possibilities of exposing a smaller customer order of 5 contracts or 
less for price improvement opportunities in auctions or look for 
liquidity within the NBBO spread instead of routing the customer order 
to a venue that would allow a market maker to internalize 100% of a 
given customer order with 5 contracts or less on the limit order book 
at the best displayed prices without competition from other liquidity 
providers.\554\ Additionally, broker-dealers may route more customer 
orders to price improvement auctions that are more competitive rather 
than ones that provide the broker-dealer a better chance at 
internalizing a larger share of the customers' orders. Furthermore, 
with regards to non-marketable limit orders, broker-dealers may 
consider routing more orders to exchanges that have higher likelihood 
of executions in the form of fill rates and average shorter time to 
execution rather than to the exchanges that pay the highest liquidity 
rebates.
---------------------------------------------------------------------------

    \553\ See supra section IV.C about the discussion for the 
requirements involving conflicted transactions for retail orders and 
supra Sections V.C.2.a and V.C.2.b.i describing the conflicts of 
interest in retail order handling.
    \554\ See supra section V.B.3.(a).ii for discussion of the 
handling of retail orders in the options markets.
---------------------------------------------------------------------------

(b) Fixed Income Securities
    The Commission preliminarily believes that the proposed 
documentation requirement with respect to conflicted transactions could 
facilitate regulatory oversight and enforcement and promote broker-
dealer compliance with best execution standards, promoting investor 
protection in the fixed income securities markets. For introducing 
brokers that utilize trading services of executing brokers, the 
requirement to review and compare execution quality of various 
executing brokers could result in better execution quality for retail 
customer trades to the extent that brokers choose to change their 
executing brokers to those that offer better execution quality. In 
general, the proposal would improve execution quality to the extent 
that the proposal results in enhancements to broker-dealers' order 
handling procedures. The extent to which customer order execution 
quality would improve depends on how many and to what extent broker-
dealers would adjust their order handling procedures as a result of 
this proposal. However, the Commission cannot ascertain the extent to 
which this benefit would be realized because the Commission lacks data 
on how many broker-dealers would change order handling procedures in 
response to the proposal.
    For very illiquid fixed income securities, execution quality 
improvement resulting from changes in order handling procedures with 
respect to conflicted transactions could be limited. Because a broker-
dealer transacting in illiquid fixed income securities will only have a 
few potential counterparties, exposing retail orders to a greater 
number of trading venues (e.g., through RFQs) may not result in more 
responses nor more competitive responses. On the other end of the 
spectrum, the Commission expects little impact on the execution quality 
of on-the-run U.S. Treasury securities because transaction costs for 
such securities are already low. The impact is most likely to 
materialize in fixed income securities that have moderate liquidity, as 
discussed further below.
    The Commission preliminarily believes that the documentation 
requirement for conflicted transactions under the proposal could 
facilitate regulatory oversight and promote broker-dealer compliance 
with best execution standards, promoting investor protection in the 
fixed income securities markets.\555\ To the extent that broker-dealers 
do not currently document efforts to obtain the most favorable price in 
conflicted transactions, these broker-dealers would be required to 
document such information. Compared to the markets for equities and 
listed options where quotes and trades are widely disseminated, in most 
fixed income markets only transactions are reported and disseminated 
publicly. The extent to which the proposed documentation requirement 
would help facilitate regulatory oversight depends on the types of 
documented information. To the extent that the documented information 
includes information or data that is not currently documented nor 
available through public or regulatory data sources, such as the 
markets checked, internal and external quotes, and other factors (e.g., 
trading protocols, prices, immediacy, trade size) considered for the 
basis of best execution, the proposed documentation requirement would 
help facilitate regulators' enforcement and examination of a broker-
dealer for compliance, and thus, result in better investor protection. 
Furthermore, the Commission believes that documentation could enhance 
internal review process (e.g., a review by best the execution 
committee). Documented information could inform the broker-dealer in 
adjusting order handling procedures with respect to conflicted 
transactions, which would result in better execution quality.
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    \555\ FINRA members are currently required to conduct regular 
and rigorous review of execution quality under FINRA Rule 5310.09. 
However, the Commission does not know the types of information that 
broker-dealers document for the purpose of regular and rigorous 
review of execution quality under FINRA Rule 5310 and MSRB Rule G-
18.
---------------------------------------------------------------------------

    The Commission preliminarily believes that the execution quality of 
retail customer trades in fixed income securities effected by brokers 
that qualified for relief under the FINRA/MSRB rules by relying on 
their executing brokers for trading services could improve. Under the 
proposal, introducing brokers,\556\ as defined in proposed Rule 
1101(d), and carrying

[[Page 5527]]

brokers that currently avail themselves of the relief under the FINRA/
MSRB rules and hence rely on their executing brokers for retail 
customer trading services, would be required to review and compare the 
execution quality of their executing brokers with the execution quality 
they might have obtained from other executing brokers and adjust their 
routing practices accordingly.\557\ To the extent that some of these 
brokers change their executing brokers for trading services to those 
that offer better execution quality, retail customer trades of the 
brokers would receive better execution quality.\558\ Furthermore, the 
requirement to review and compare execution quality of executing 
brokers could promote competition among executing brokers, which could 
result in better execution quality for retail customer trades.\559\
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    \556\ These brokers are non-carrying brokers that qualified for 
relief under the FINRA/MSRB rules.
    \557\ Carrying brokers that qualified for relief under the 
FINRA/MSRB rules would not have relief from the requirements of the 
proposal unless these brokers restructure their business to become 
non-carrying brokers. Under the proposed rule 1101(c) with respect 
to regular review of execution quality, these carrying brokers would 
be required to review and compare the execution quality of their 
executing brokers with the execution quality they might have 
obtained from other executing brokers, and adjust their order 
handling and routing practices accordingly.
    \558\ The Commission acknowledges that some brokers could 
already be reviewing and comparing the execution quality, of which 
various executing brokers offer, in the selection of their executing 
brokers.
    \559\ Executing brokers would compete on, among other things, 
fees, markups/markdowns, and the quality of trading services.
---------------------------------------------------------------------------

    The Commission preliminarily believes that the proposed 
requirements with respect to conflicted transactions could result in 
better execution quality for internalized trades in fixed income 
securities. To the extent that broker-dealers make changes to order 
handling procedures (upon reviewing and comparing execution quality 
across competing markets) and connect to additional trading venues to 
expose retail customer orders (e.g., via RFQs and BWICs) more broadly 
across multiple trading venues for the purpose of internalization, the 
execution quality of internalized trades could improve. Sending RFQ 
messages more broadly across multiple trading venues may result in 
better execution quality for internalized trades if a broader exposure 
of customer order results in more competitive prices for the purpose of 
internalization (i.e., price-matching using more competitive price). 
For example, exposing a customer order via RFQs on multiple trading 
venues could result in more competitive responses to be used as the 
reference price to match or improve for the purpose of internalization. 
However, to the extent that broker-dealers continue to engage in last-
look practices in RFQs for the purpose of internalization, conducting 
RFQs on more trading venues may not necessarily result in more 
responses nor more competitive responses as discussed below.
    To the extent that a broker-dealer determines, upon reviewing data, 
that the use of last-look in RFQs impedes attracting competitive 
responses, the broker-dealer could discontinue last-look practices or 
limit the use of last-look to meaningfully improve price in an occasion 
when RFQ responses are not reflective of the market. For example, a 
broker-dealer handling a retail customer order may participate in an 
RFQ by blind bidding/offering and internalize the order only if the 
broker-dealer is the best bid/offer in the RFQ, or otherwise give up 
the order to another responder with the best bid/offer. Such RFQ 
practice could attract more competitive responses thereby improving the 
execution quality of internalized trades via RFQs.\560\ However, the 
Commission believes that this benefit is not likely to be realized. 
Broker-dealers would continue to use last-look in conducting RFQs for 
the purpose of internalization so long as such internalization practice 
continues to provide profit incentive for those broker-dealers.
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    \560\ See infra section V.C.2.b for the discussion about how the 
proposal might adversely impact market liquidity. The Commission 
preliminarily believes that this benefit in the execution quality 
improvement for retail customer trades may be reduced to the extent 
that eliminating last-look practices in RFQ for the purpose of 
internalization adversely affects the principal trading activities 
of inventory carrying broker-dealers.
---------------------------------------------------------------------------

    In order to justify the continued use of last-look in fixed income 
securities trading, broker-dealers could provide meaningful price 
improvement by exercising last-look in RFQs for the purpose of 
internalization, which would result in better execution quality. To the 
extent that a broker-dealer's review or assessment reveals that the use 
of last-look in RFQs impedes attracting competitive responses, the 
broker-dealer could respond by providing price improvements to the best 
response bids/offers to compensate for receiving less competitive bids/
offers in RFQs as compared to, for instance, in a blind auction as 
described above.
    Broker-dealers' assessment of last-look practices in fixed income 
securities trading may not affect execution quality for internalized 
trades via RFQs. Unless a broker-dealer's review or assessment shows a 
negative impact of last-look practices on the execution quality of 
internalized trades, the Commission does not expect the broker-dealer 
to alter nor discontinue last-look practices in RFQs for the purpose of 
internalization. If the broker-dealer makes no changes, the rule would 
produce no improvement in the execution quality for internalized trades 
via RFQs. Specifically, in exercising last-look, a broker-dealer that 
currently applies trade desk spreads (in the form of markdown/markup) 
to external bids/offers but not to internal bids/offers, which results 
in more favorable comparisons for the internal bids/offers, to win 
RFQs, may continue to apply such practice so long as the execution 
quality of external trades would be worse than that of internalized 
trades.
    The Commission preliminarily believes that the proposed 
requirements with respect to conflicted transactions could result in 
better execution quality for riskless principal trades in fixed income 
securities. To the extent that broker-dealers make changes to order 
handling procedures (upon reviewing and comparing execution quality 
across competing markets) and connect to additional trading venues in 
order to search or expose retail customer orders more broadly across 
multiple trading venues, the execution quality of riskless principal 
trades for retail customers could improve. Broker-dealers could 
increase the use of RFQs across multiple trading venues to expose 
retail customer orders in order to obtain competitive prices. 
Furthermore, as another way to expose retail customer orders more 
broadly, broker-dealers could represent retail customer orders on limit 
order systems across multiple trading venues. For example, in case of a 
retail customer sell order, instead of conducting an RFQ on the bid 
side of the market, a broker-dealer could represent the customer order 
by placing a limit order on the offer side of the market for certain 
fixed income securities (e.g., liquid on-the-run Treasury securities, 
liquid corporate debt securities) should the broker-dealer determine 
that the characteristics of the customer order are consistent with this 
type of order handling (e.g., the customer is not demanding immediacy 
of execution). This would lower transaction costs of the retail 
customer because this customer would not pay the bid ask spread if the 
order is executed at the offer price (compared to executing at the bid 
price obtained via an RFQ).
    In response to the proposed requirements with respect to conflicted 
transactions, retail broker-dealers could stop executing retail 
customer fixed income securities orders on a riskless principal basis. 
To the extent that it is

[[Page 5528]]

more cost effective for broker-dealers to handle retail customer orders 
on an agency basis rather than a riskless principal basis under the 
proposal, broker-dealers could change business practices to handle 
retail customer orders on agency basis and not incur the costs 
associated with the requirements under conflicted transactions (e.g., 
trading venue subscription fees and implementation costs associated 
with changing order handling procedures).\561\ In such case, execution 
quality may not change. In particular, a broker-dealer, whose primary 
business is retail self-directed trading conducted on riskless 
principal basis, could change its business practices to handle retail 
self-directed trading on agency basis to the extent that conducting its 
self-directed trading business on an agency basis would be less costly 
compared to doing so on a riskless principal basis.
---------------------------------------------------------------------------

    \561\ See infra section V.C.2.(a) for discussions about trading 
venue subscription fees and costs associated with making changes to 
order handling procedures.
---------------------------------------------------------------------------

(c) Non-NMS Stock Equity Securities
    There are three possible channels through which benefits of the 
proposal to the non-NMS stock equities market may derive: (1) 
requirements with respect to conflicted transactions; (2) the regular 
review of execution quality of executing brokers used by introducing 
brokers; and (3) some broker-dealers implementing policies and 
procedures to comply with this proposal, which may offer improved 
execution quality to transactions effected by these broker-
dealers.\562\
---------------------------------------------------------------------------

    \562\ See section V.C.1 introduction for more explanation of the 
general benefit to execution quality that retail customers could 
experience. In the non-NMS stock equity securities market, the 
Commission believes a majority of transactions would be subject to 
the Conflicts of Interest provisions in proposed Rule 1101(b); 
however, there may be some broker-dealers who could improve 
execution quality while implementing policies and procedures as 
explained in section V.C.1.
---------------------------------------------------------------------------

    The Commission preliminarily believes that the documentation 
requirement with respect to conflicted transactions could help 
facilitate regulatory oversight and enforcement, as well as promote 
broker-dealer compliance, and thus, enhance investor protection in the 
non-NMS stock equity securities market. To the extent that the 
documented information includes additional information beyond what 
broker-dealers currently record, and which may not be currently 
available through public or regulatory data sources (e.g., CAT), such 
as non-firm quotes on trading venues and factors (e.g., immediacy, 
trade size) considered for the basis of best execution, the proposed 
documentation requirement would help facilitate Commission and SRO 
enforcement and examinations, and thus, result in better investor 
protection. Similarly, the Commission believes that documentation could 
enhance the internal review process (e.g., a review by best execution 
committee). Documented information could inform broker-dealers in 
adjusting order handling procedures with respect to conflicted 
transactions, which could result in better execution quality.
    The proposal would require additional policies and procedures, 
beyond FINRA Rule 5310 and related FINRA notices \563\ that currently 
address non-NMS stock equities transactions, when engaging in 
transactions that are executed in a principal capacity, routed to an 
affiliate for execution, or involve PFOF. Conflicted transactions are 
ubiquitous in the non-NMS stock equities market. These enhanced 
policies and procedures may induce broker-dealers to more carefully 
consider and change routing behavior in handling customer orders. While 
this proposal does not mandate changes, the changes could arise as 
broker-dealers are required to maintain policies and procedures that 
dictate the handling of conflicted transactions. In some cases, this 
could induce broker-dealers to reduce or eliminate conflicted 
transactions they participate in due to heightened costs of procedures, 
such as the documentation requirement. While in other cases, there 
could be no such inducement of broker-dealers to change order routing 
behavior. Trading in non-NMS stock equity securities is heavily 
concentrated in two platforms; however, there are other sources of 
liquidity beyond those two. This proposal could induce broker-dealers 
to connect to additional liquidity sources due to the requirements of 
conflicted transactions of this proposal. To the extent that broker-
dealers' enhanced policies and procedures determine that they should 
connect to additional liquidity sources for conflicted transactions, 
customers' transaction costs could be lowered through better prices 
found on the additional sources. Additionally, to the extent that 
broker-dealers are either no longer routing to wholesalers or 
internalizing orders based on policies and procedures that resulted in 
different routing decisions, customer orders could experience price 
improvement opportunities, as their orders would be exposed to external 
competition.
---------------------------------------------------------------------------

    \563\ See supra section II.C for details on FINRA rules and 
notices with respect to the concept of ``best execution.''
---------------------------------------------------------------------------

    Introducing brokers, as defined in proposed Rule 1101(d), would be 
required to conduct regular reviews of executing brokers they use for 
their retail customer transactions. This review, which differs from the 
quarterly review \564\ required by FINRA Rule 5310 for all brokers, 
could cause introducing brokers to seek out additional executing 
brokers to develop business relationships with. These additional 
options, from which introducing brokers could choose to route their 
customer orders, could promote competition among executing brokers in 
the non-NMS stock equities market. This increased competition could 
result in better execution quality to the introducing brokers' retail 
customers in the form of lower transaction costs and increased fill 
rates for illiquid securities.
---------------------------------------------------------------------------

    \564\ When transacting in municipal securities, broker-dealers 
are subject to MSRB Rule G-18. The rule requires an annual review of 
policies and procedures, which could take into account execution 
quality review. The rule in this proposal is substantively different 
from FINRA Rule 5310 or MSRB Rule G-18.
---------------------------------------------------------------------------

(d) Crypto Asset Securities \565\
---------------------------------------------------------------------------

    \565\ For purposes of measuring the benefits and costs of the 
proposed rule on a broker-dealer's duty of best execution in the 
crypto market, this analysis assumes that market participants are 
compliant with existing applicable Commission, FINRA, and MSRB 
rules, including those directly addressing the duty of best 
execution for the handling and execution of customer orders in 
securities and government securities. See supra section III.A.3. To 
the extent that some entities engaged in broker-dealer activities 
with regard to crypto asset securities are not FINRA or Commission 
registered entities, they may incur additional costs to comply with 
existing registration obligations that are distinct from the costs 
associated with the proposed rule and are not discussed in this 
analysis. Similarly, any benefits from coming into compliance with 
existing registration obligations are also not discussed in this 
analysis. See id.
---------------------------------------------------------------------------

    As mentioned above in Section V.B.3.c, the Commission lacks data on 
broker-dealer routing behavior, the frequency of crypto asset 
securities trading in both non-conflicted and conflicted transactions, 
and many details of trading protocols and crypto asset securities 
trading platforms. Also, as noted in Section V.B.3.c, this market 
features many vertically integrated trading platforms, which makes 
analogous comparison to other asset markets less exact. To the extent 
that broker-dealers operate in a fashion similar to other asset 
markets,\566\ the Commission preliminarily believes the proposal could 
drive benefits in the crypto asset securities market through three 
possible channels: (1) the requirements with respect to conflicted

[[Page 5529]]

transactions; (2) the regular review of execution quality of executing 
brokers used by introducing brokers \567\; and (3) some broker-dealers 
implementing policies and procedures to comply with this proposal, 
which could offer improved execution quality to all transactions 
conducted by these broker-dealers.
---------------------------------------------------------------------------

    \566\ The Commission preliminarily believes the closest market 
comparison may be the non-NMS stock equity securities market; 
though, no exact comparison to any other asset market is likely with 
crypto asset securities.
    \567\ The Commission understands the crypto asset securities 
market has several large, vertically integrated platforms. The 
Commission lacks the data to determine whether entities analogous to 
introducing brokers are prevalent in this market. However, the 
discussed benefits are those which the Commission believes could 
accrue in cases where such market structure exists.
---------------------------------------------------------------------------

    The Commission preliminarily believes that the documentation 
requirement with respect to conflicted transactions could help 
facilitate regulatory oversight and enforcement, as well as promote 
broker-dealer compliance, and thus, enhance investor protection in the 
crypto asset securities market. To the extent that documented 
information includes information or data that is not currently 
documented nor available through public or regulatory data sources, the 
proposed documentation requirement would help facilitate enforcement 
and examination, and thus, result in better investor protection. 
Furthermore, the Commission believes that documentation could enhance 
internal review process (e.g., a review by the best execution 
committee). Documented information could inform broker-dealers in 
adjusting order handling procedures with respect to conflicted 
transactions, which would result in better execution quality.
    The proposal would also require written policies and procedures 
beyond those required under FINRA Rule 5310,\568\ when engaging in 
transactions that are executed in a principal capacity, routed to an 
affiliate for execution, or involve PFOF. While this proposal does not 
mandate changes, the enhanced policies and procedures required by this 
proposal may induce brokers to more carefully consider and change 
routing behavior in handling customer orders. Specifically, as broker-
dealers are directed to write and maintain policies and procedures that 
dictate the handling of currently conflicted transactions, they may 
review their existing routing behavior. In some cases, this could 
induce broker-dealers to reduce or eliminate conflicted transactions, 
in which they participate due to heightened costs of procedures, such 
as the documentation requirement. To the extent that broker-dealers 
with enhanced policies and procedures determine that they should 
connect to additional liquidity sources for conflicted transactions, 
investors' transaction costs could be lowered through better prices 
being found on the additional sources. Additionally, to the extent that 
broker-dealers are either no longer routing to wholesalers or 
internalizing based on policies and procedures that resulted in 
different routing decisions, customer orders could experience price 
improvement opportunities, as their orders would be exposed to external 
competition.
---------------------------------------------------------------------------

    \568\ See supra section II.C for details on FINRA rules and 
notices surrounding the concept of ``best execution.''
---------------------------------------------------------------------------

    Introducing brokers,\569\ as defined in the proposed Rule 1101(d), 
would be required to conduct regular review of executing brokers they 
use to for their customer transactions. This review, which differs from 
the quarterly review \570\ required by FINRA Rule 5310 for all brokers, 
could cause introducing brokers to seek out additional executing 
brokers with whom to develop business relationships. These additional 
options, from which introducing brokers could choose to route their 
customer orders, could promote competition among executing brokers in 
the crypto asset securities market. This increased competition could 
result in better execution quality to the introducing brokers' retail 
customers in the form of lower transaction costs and increased fill 
rates for illiquid securities.
---------------------------------------------------------------------------

    \569\ As noted in the introduction of this section, the 
Commission lacks data on broker-dealer activities in this market. In 
this instance, the Commission does not have data on the prevalence 
of introducing brokers in the crypto asset securities market. This 
discussion applies to the extent these entities operate in this 
market.
    \570\ When transacting in municipal securities, broker-dealers 
are compelled by MSRB Rule G-18. The rule requires an annual review 
of policies and procedures, which could take into account execution 
quality review. The rule in this proposal is substantively different 
from FINRA Rule 5310 or MSRB Rule G-18.
---------------------------------------------------------------------------

2. Costs
    In order to comply with the proposal, broker-dealers would 
collectively incur costs to: update their policies and procedures; 
review and update those policies and procedures annually; conduct and 
document regular reviews of best execution compliance; and possibly 
make operational changes in response to those regular reviews. Assuming 
all broker-dealers will need to perform each of these activities and do 
not do so already, and do not have policies and procedures in place 
that would be consistent with the proposed rules, the Commission 
estimates one-time compliance costs of up to $165.4 million and annual 
costs of $128.9 million. To the extent that broker-dealers already have 
policies and procedures and practices that are consistent with the 
proposed rules, aggregate implementation costs would be less than these 
estimates, and based on the Commission's experience, the Commission 
preliminarily believes these estimates overstate costs broker-dealers 
would bear in implementing the proposed rules.\571\
---------------------------------------------------------------------------

    \571\ The one-time costs average $47,298 per broker-dealer; 
ongoing costs average $36,843 per broker-dealer annually. Again, 
these estimates assume that all broker-dealers will need to 
implement new or updated policies and procedures or practices to be 
consistent with the proposed rules. Based on its experience, the 
Commission preliminarily believes that some broker-dealers may 
already have policies and procedures and other practices that are 
consistent with proposed Rule 1101. If, for example, all 3,273 of 
the broker-dealers that the Commission estimates would choose to not 
engage in conflicted transactions have policies and procedures and 
other practices consistent with proposed Rule 1101, the aggregate 
total cost of the proposal to all broker-dealers would be $38.8 
million in one-time costs and $48.1 million in annual costs. Because 
not all broker-dealers are likely to already have policies and 
procedures and other practices that are consistent with proposed 
Rule 1101, aggregate implementation costs would be higher than these 
estimates. Accordingly, it is likely that actual costs would fall 
between these estimates and those cited above.
---------------------------------------------------------------------------

    The proposal would entail other costs as well, as discussed below. 
Where possible, the Commission has attempted to estimate these costs. 
Other costs are discussed qualitatively. The Commission believes it is 
likely these costs would be passed to broker-dealer customers, and 
would ultimately be borne by customers.
(a) Compliance Costs for Broker-Dealers
i. Carrying Broker-Dealers
    Under the proposal, broker-dealers would fall into three groups: 
(1) those that qualified for relief from the FINRA Regular and Rigorous 
Review of Execution Quality under FINRA Rule 5310.09(c) from primary 
analysis requirements under FINRA/MSRB rules previously and would meet 
the introducing broker requirements to qualify for the proposed relief 
under proposed Rule 1101(d); \572\ (2) those that did not qualify for 
relief under FINRA Rule 5310.09(c) and would not qualify for the 
proposed relief under proposed Rule 1101(d); and (3) those that 
qualified for relief under FINRA Rule 5310.09(c) previously but would 
not qualify for the proposed relief under proposed Rule 1101(d). The 
third group, which may include as many as 144 \573\ broker-dealers that 
carry customer accounts, would be required under the

[[Page 5530]]

proposed rule to comply with the policies and procedures and regular 
review provisions of proposed Rules 1101(a), (b), and (c) because these 
broker-dealers would not qualify for the introducing broker exemption 
(because they carry customer accounts). Under the proposal, a broker-
dealer that qualified for relief under FINRA Rule 5310.09(c) that does 
not meet the definition of introducing broker under proposed Rule 
1101(d) would be required to incur costs to set up their own best 
execution policies and procedures, and it would likely no longer be 
able to rely on an executing broker for its analysis of execution 
quality, unless the broker-dealer were to revise their business model 
to no longer carry customer accounts. The Commission's cost estimates 
below assume that all broker-dealers will implement this review under 
the proposal. Based on the Commission's experience, the Commission 
preliminarily believes that many broker-dealers in the first two groups 
already conduct reviews of execution quality consistent with the 
requirements of the proposal. Consequently, the Commission believes its 
cost estimates for compliance overestimate costs broker-dealers will 
collectively bear to implement the proposal.
---------------------------------------------------------------------------

    \572\ See supra section II.C for the discussion about FINRA Rule 
5310.09(c) and supra Section IV.E for the discussion about 
introducing broker requirements under proposed Rule 1101(d).
    \573\ Based on April-June 2022 FOCUS data.
---------------------------------------------------------------------------

ii. Conflicted Broker-Dealers
    Conflicted broker-dealers may comply with the proposed requirements 
in a number of ways. First, they may choose to engage in more rigorous 
analysis of the execution quality their orders receive than is required 
of unconflicted broker-dealers, comparing the execution quality of 
multiple possible broker-dealers that they could route order flow to 
for execution, as well as execution quality available on other venues 
where liquidity is reasonably available, and regularly update routing 
practices based on these analyses. Based on the Commission's 
experience, the Commission preliminarily believes that some broker-
dealers already engage in these practices. However, particularly 
smaller broker-dealers who continue \574\ to accept PFOF from an 
executing broker-dealer may have previously relied on the best 
execution obligations of broker-dealers they route to, and under the 
proposal, would no longer qualify for the relief from such analyses 
previously provided under FINRA/MSRB rules. For these broker-dealers, 
performing such analyses might require engaging external consultants to 
provide such analyses if the broker-dealer's staff does not possess the 
necessary expertise or if the broker-dealer's staffing is not adequate 
to support the additional duties required, and might also require 
engaging external consultants to obtain analyses incorporating the 
necessary data (such as information on alternative trading system 
liquidity) to which they may not currently have access. The 
Commission's cost estimates below assumes that smaller broker-dealers 
(those carrying less than $100MM in total assets) will incur costs to 
engage external parties for this review.
---------------------------------------------------------------------------

    \574\ Resolving conflicts is discussed below.
---------------------------------------------------------------------------

    The Commission preliminarily believes that due to the prevalence of 
exchange rebates, many of the 2,440 retail broker-dealers \575\ are 
likely to qualify as conflicted under the proposal. The Commission is 
able to preliminarily estimate an upper bound on potential 
implementation costs from these broker-dealers by assuming that all 
2,440 retail broker-dealers would remain conflicted after 
implementation of the proposal,\576\ but the Commission preliminarily 
believes the implementation costs for many broker-dealers are likely to 
be lower than this estimate because some conflicted broker-dealers 
receive payments from their conflicted order flow that are less than 
the implementation costs they would incur under the proposed rule; 
consequently, the Commission preliminarily believes that some broker-
dealers will choose to de-conflict to avoid incurring these costs. For 
purposes of its analysis, the Commission assumes that broker-dealers 
with less than $100MM in total assets will comply with the proposal by 
removing their conflicts.\577\ The Commission preliminarily believes 
that some broker-dealers may continue to use one or more clearing 
broker-dealers that have previously paid to receive their order flow, 
and in such cases the primary cost to the broker-dealer would be the 
lost PFOF revenue. However, if a broker-dealer needed to change the 
broker-dealer it routed to, or engage the services of another 
intermediary to handle its order flow in order to remove conflicts, the 
broker-dealer would likely incur switching costs such as staff time 
allocated to researching and negotiating with alternative providers of 
services.\578\
---------------------------------------------------------------------------

    \575\ Based on Q2 2022 FOCUS data.
    \576\ If all 2,440 broker-dealers were to implement the more 
rigorous requirements required for broker-dealers engaging in 
conflicted transactions, these broker-dealers would collectively 
incur $155.3MM in implementation costs averaging $63,637 per broker-
dealer. The Commission also assumes each would incur $9,000 per year 
in costs to update order-handling procedures in response to its 
annual review of execution quality, for ongoing annual costs of 
$22.0 MM.
    \577\ If a broker-dealer has revenue from conflicted 
transactions that over time sufficiently exceeds the $24,935 in 
additional implementation costs the Commission estimates conflicted 
broker-dealers will incur and the $9,000 annual cost to update 
order-handling procedures, the broker-dealer is likely to choose to 
continue to engage in conflicted transactions since its revenue from 
such activities exceeds the additional implementation and ongoing 
costs necessary to comply while engaging in conflicted transactions. 
Because the majority of PFOF revenues accrue to a small number of 
broker-dealers, the Commission preliminarily believes that smaller 
broker-dealers are unlikely to receive significant PFOF revenue that 
would justify the additional implementation costs. For some of these 
broker-dealers, passing the PFOF they receive on to their customers 
may suffice to de-conflict. See note 183, supra.
    \578\ See infra note 581 and text for discussion of related 
costs the broker-dealer would likely incur to operationalize 
changing a routing destination.
---------------------------------------------------------------------------

    The Commission preliminarily believes that each broker-dealer that 
would be required under the proposed rules to comply with provisions of 
the proposal applicable to conflicted broker-dealers would consider its 
options under the proposed rules strategically. For some firms, the 
costs of staffing the activities required for compliance would exceed 
their expected profits from conflicted transactions. The Commission 
expects these firms would choose to alter their business models to 
reduce conflicts so compliance changes necessary for conflicted 
transactions are not required under the proposed rules. It is possible 
that a consolidation of business would result: some broker-dealers may 
exit the market, while others would invest further and compete to serve 
the customers of exiting broker-dealers. Some broker-dealers may reduce 
conflicts identified under the proposed rules and compete for customer 
order flow on the basis of their less-conflicted status. To the extent 
that exiting broker-dealers were able to offer lower-costs than broker-
dealers that either reduce conflicts or comply with provisions of the 
proposal required of conflicted broker-dealers, direct costs such as 
commissions and fees for these firms' investor customers may increase.

[[Page 5531]]

iii. All Broker-Dealers
    Broker-dealers would incur costs to update policies and procedures 
to reflect the proposal. They would incur other costs to regularly 
review the execution quality of venues or other broker-dealers to which 
they route customer orders. To the extent that broker-dealers already 
have policies and procedures that comply with the proposal, aggregate 
implementation costs would be less than this estimate, and based on the 
Commission's experience, the Commission preliminarily believes these 
estimates overstate costs broker-dealers would bear in implementing the 
proposal. Implementation costs are summarized in Table 23 below.\579\
---------------------------------------------------------------------------

    \579\ See infra Section VI.7 for detailed discussion of these 
estimates.

                                                          Table 23--Total Implementation Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Per registrant ($)                                      Industry-wide ($)
     Required Policies and Procedures      -------------------------------------------------------------------------------------------------------------
                                                                          Internal labor     External     Internal labor     External          Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
BDs excluding conflicted retail (3273):
    Update policies and procedures........  One time....................           6,462          32,240      21,150,126     105,521,520     126,671,646
    Annual review and update of P&P.......  Annual......................           2,154           8,800       7,050,042      28,802,400      35,852,442
    Conduct and document review of          Annual......................           7,642           6,080      25,012,266      19,899,840      44,912,106
     execution quality.
Conflicted BDs (225):
    Update policies and procedures........  One time....................          55,701           7,936      12,532,725       1,785,600      14,318,325
    Annual review and update of P&P.......  Annual......................           6,421  ..............       1,444,725  ..............       1,444,725
    Conduct and document review of          Annual......................          20,840  ..............       4,689,000  ..............       4,689,000
     execution quality.
               Annual Report
Unconflicted BDs (3273):
    Update procedures for reviewing best    One time....................           1,795           4,960       5,875,035      16,234,080      22,109,115
     ex policies and procedures.
    Conduct and document regular reviews..  Annual......................           4,062           7,920      13,294,926      25,922,160      39,217,086
Conflicted BDs (225):
    Update procedures for reviewing best    One time....................           8,952           1,488       2,014,200         334,800       2,349,000
     ex policies and procedures.
    Conduct and document regular reviews..  Annual......................          12,278  ..............       2,762,550  ..............       2,762,550
                                                                                                         -----------------------------------------------
        Total Implementation Costs........  ............................  ..............  ..............      41,572,086     123,876,000     165,448,086
                                                                                                         -----------------------------------------------
        Total Annual Costs................  ............................  ..............  ..............      54,253,509      74,624,400     128,877,909
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs in this table are constructed from estimates in Section VI.D. In its economic analysis, the Commission assumes that the 225 retail broker-dealers
  with over $100MM in total assets are large and will continue to engage in conflicted transactions if the proposed rules are adopted, and follows the
  Section VI.D estimates for large broker-dealers. The remaining 3,273 broker-dealers are assumed to be unconflicted for purposes of the proposed rules,
  and this analysis follows the Section VI.D estimates for small broker-dealers. Section VI.D assumes that smaller broker-dealers are less likely to
  engage in conflicted transactions, but acknowledges some costs associated with conflicted transactions. Furthermore, Section VI.D cost estimates
  assume broker-dealers will outsource many compliance tasks and thus relies more upon external costs. To the extent that these broker-dealers elect to
  perform these tasks with internal personnel, their implementation costs are likely to be over-stated in this analysis. Consequently, this analysis is
  likely to over-estimate compliance costs for unconflicted broker-dealers.
Where internal burden hours appear in Section VI.D, the Commission employed hourly rates to monetize these costs. These hourly rates are based on
  SIFMA's Management & Professional Earnings in the Securities Industry 2013, modified by Commission staff to account for an 1,800-hour work-year and
  multiplied by 5.35 to account for bonuses, firm size, employee benefits and overhead, and adjusted with a factor of 1.27 for inflation based on the
  27% change in the Consumer Price Index from December 2013 to September 2022. The Commission employed the following hourly rates, with the description
  employed in Section VI.D in parenthesis: Attorney (legal counsel) $483 per hour; Compliance Attorney (compliance counsel) $424 per hour; General
  Counsel (general counsel) $693 per hour; CCO (CCO) $616 per hour; Compliance Manager (compliance manager) $359 per hour; Paralegal (legal personnel)
  $253 per hour; Compliance Manager (compliance personnel) $359 per hour; Operational Specialist (business-line personnel) $159 per hour.

    The previous table discusses the costs broker-dealers would incur 
to comply with the proposal.\580\ In the case of conflicted broker-
dealers that would be newly required to evaluate execution quality from 
multiple sources in evaluating execution quality, it is possible they 
would periodically need to change their routing practices to reflect 
changes they observe in their data analysis. The Commission 
preliminarily estimates that each conflicted broker-dealer that changes 
its routing practices will incur costs of approximately $9,000.\581\ 
The Commission cannot estimate the number of broker-dealers that would 
need to make this change periodically,

[[Page 5532]]

but the Commission preliminarily estimates that the changes will be no 
more than $2 million \582\ annually in aggregate.
---------------------------------------------------------------------------

    \580\ See infra section VI.D.
    \581\ The Transaction Fee Pilot required re-programming of SORs 
as well. For that pilot, the Commission estimated that the costs of 
a one-time adjustment to the order routing systems of a broker-
dealer would $9,000 per broker-dealer. The Commission preliminarily 
believes that this estimate remains a reasonable estimate of costs 
associated with changes that broker-dealers would incur from having 
to update their routing systems. See Securities Exchange Act Release 
No. 84875 (Dec. 19, 2018), 84 FR 5202 (Feb. 20, 2019) (Transaction 
Fee Pilot for NMS Stocks).
    \582\ 225 conflicted broker-dealers x $9,000 per order-handling 
change = $2.025MM annually. The Commission assumes that order-
handling changes would be annual because the proposal requires the 
annual review of the best execution policies and procedures, 
including order handling practices. Based on the Commission's 
experience, the Commission preliminarily believes that many broker-
dealers, including many that the Commission believes will be 
unconflicted if the proposal is adopted and implemented, already 
change order-handling practices regularly for both best-execution 
and other operational reasons, such as reducing costs. Consequently, 
the Commission preliminarily believes that this estimate exceeds the 
annual costs that broker-dealers would bear under the proposal.
---------------------------------------------------------------------------

iv. Additional Compliance Costs for NMS Stocks and Options
    For NMS stocks, a broker-dealer engaging in conflicted transactions 
would currently be required to subscribe to SIP data under current SRO 
best execution rules. To consider a broader range of markets, such 
broker-dealers might add connections to one or more ATSs, subscribe to 
more detailed data or consider connecting to ``ping'' destinations 
(automated systems run by OTC liquidity providers that may elect to 
internalize any order routed to their system).\583\ In making this 
choice, some broker-dealers may compare their current routing practices 
to a hypothetical competitor that does the bare minimum and consider 
their practices compliant with the proposal even if all competitors 
currently do more than this hypothetical minimum.\584\ To the extent 
broker-dealers believe that their current routing practices are in 
compliance and do not make changes to routing practices, both the 
benefits and the costs of the proposed rules would be less than they 
would be otherwise.
---------------------------------------------------------------------------

    \583\ The Commission preliminarily believes that larger broker-
dealers that are likely to continue engaging in conflicted 
transaction if the proposed rules are adopted are likely to already 
connect to a broader range of venues than would be represented by 
SIP data. The Commission cannot predict how many broker-dealers that 
elect to engage in conflicted transactions would increase the range 
of venues to which they connect and what costs they would incur to 
do so because broker-dealers are diverse in business models and 
practices and each broker-dealer would need to evaluate its own 
operational procedures to make such a determination.
    \584\ Based on staff discussion with market participants, the 
Commission preliminarily believes that broker-dealers are often not 
certain what their competitors' routing practices are. Such 
information is proprietary and generally not publicly available.
---------------------------------------------------------------------------

v. Additional Compliance Costs Associated With Fixed Income Securities
    With respect to fixed income securities trading, broker-dealers 
that engage in conflicted transactions could add subscription to one or 
more trading venues (e.g., ATSs, RFQ platforms, single dealer 
platforms) to the extent that the benefit (i.e., improvement in 
execution quality) from adding subscription to trading venue outweighs 
the costs (e.g., venue subscription fees).\585\ The Commission expects 
that a broker-dealer would subscribe to additional trading venues to 
take liquidity (as opposed to provide liquidity by posting quotes or 
responding to RFQs) in executing retail customer orders on riskless 
principal basis or to discover prices for the purpose of 
internalization. The Commission understands that subscription fees for 
liquidity takers are not significant. Furthermore, the broker-dealer 
would choose to connect to a trading venue via low cost means, for 
example, web-based graphical user interface (GUI) rather than via more 
costly application programming interface (API), which may include the 
costs associated with connectivity and systems reconfiguration (e.g., 
reconfiguring to adjust API), to the extent that the broker-dealer does 
not expect to maintain constant connection to execute a large number of 
customer orders on the venue. To the extent that making changes to 
business practices to handle customer orders on an agency basis in 
fixed income securities trading is less costly than incurring costs to 
comply with the requirements with respect to conflicted transactions, 
broker-dealers may choose to handle retail customer orders on an agency 
basis rather than a riskless principal basis. In particular, a broker-
dealer whose primary business is retail self-directed trading conducted 
on a riskless principal basis could change its business practices to 
convert its self-directed trading business to handling orders on an 
agency basis. The Commission preliminarily believes that the costs 
associated with such a conversion could include the costs related to 
changing risk management practices for intraday capital commitment, 
compliance systems, recordkeeping practices for orders and 
transactions, and accounting practices. However, the Commission is 
uncertain about these costs associated with the business practice 
changes needed to convert a self-directed trading business from a 
riskless principal to agency based model and requests comments on the 
costs.
---------------------------------------------------------------------------

    \585\ In their Form ATS submissions, 15 of 33 ATSs state they 
have no access, connectivity and/or subscription fees. The 
Commission preliminarily believes that most ATSs charge fees 
primarily based on transactions, and subscribers are responsible for 
any costs related to providing their connectivity. To the extent an 
ATS does charge subscription fees, broker-dealers are likely to 
consider those fees in making a determination of whether the 
liquidity on such an ATS is reasonably available.
---------------------------------------------------------------------------

vi. Additional Compliance Costs for Non-NMS Stock Equity Securities
    In the case of non-NMS stock equities, liquidity on ATSs beyond 
those that specialize in non-NMS stock equities may be rare. For a 
broker-dealer that currently participates in the non-NMS stock market, 
adding additional markets may mean subscribing to additional ATSs, or 
possibly, contacting other broker-dealers that act as liquidity 
providers of last resort through direct messages thus seeking 
additional sources of liquidity manually. To the extent that broker-
dealers are able to bear the costs of seeking this additional liquidity 
(through ATS subscriptions or manual negotiation) while maintaining a 
profitable trading service, broker-dealers in the non-NMS stock 
equities market could pursue these actions and pass on the costs to 
customers. In the case of very illiquid non-NMS stock equities, broker-
dealers may be left with either no apparent options to add additional 
markets, or with markets which are prohibitively expensive to consider 
as additional liquidity sources (such as contacting other broker-
dealers or block holders of the security to inquire about their 
interest in being a counterparty). In such cases, there may not be 
additional implementation costs for conflicted transactions because 
alternative markets may not be available.
vii. Additional Compliance Costs Associated With Crypto Asset 
Securities
    Broker-dealers trading crypto assets that are securities may incur 
costs to comply with the proposed rule.\586\ Because the Commission 
lacks data and other information on existing broker-dealers and their 
practices in the crypto asset securities market, it is difficult to 
precisely determine the costs of compliance for such broker-dealers. 
Generally, the Commission expects the costs of compliance to be most 
similar

[[Page 5533]]

to costs associated with trading non-NMS stocks. To the extent that the 
current market practices of market participants that would need to 
comply with the proposed rule differ significantly from the practices 
required under the proposed rule, the costs for compliance with the 
proposal may be large; this may be the case, for example, for market 
participants whose practices are not currently consistent with FINRA 
Rule 5310. On the other hand, market participants with existing best 
execution policies and procedures, such as those that operate across 
other asset classes (e.g., NMS securities), may bear incremental lower 
costs of compliance.
---------------------------------------------------------------------------

    \586\ Affected parties that effect transactions in the crypto 
market may include some market participants that may not be 
currently registered as a broker-dealer but should be under existing 
regulations. As noted above, this analysis does not account for 
costs of such market participants to register as broker-dealers or 
otherwise come into compliance with existing applicable regulation.
---------------------------------------------------------------------------

    For crypto asset securities that are traded on multiple platforms, 
conflicted broker-dealers may need to connect to additional platforms 
to comply with the proposal. In the case of crypto asset securities 
that are not traded on multiple platforms, broker-dealers would incur 
costs to directly contact liquidity providers of last resort, such as 
broker-dealers that might agree to trade the asset if contacted 
directly. Because transacting manually in this manner involves the time 
of a professional trader, the cost to make these additional inquiries 
required by the proposal might be uneconomical, particularly in the 
case of small trades.
(b) Other Costs
    As discussed previously, currently many retail orders in NMS 
securities are executed without paying commissions.\587\ The Commission 
preliminarily believes that the proportion of retail order flow being 
executed under PFOF agreements may decrease, although the Commission is 
uncertain of the magnitude of this reduction.\588\ It is possible that 
reductions in the proportion of retail order flow being executed under 
such agreements could cause the prevalence of retail commissions to 
increase because revenues from these agreements may have previously 
offset retail broker dealer costs that would otherwise be covered by 
commissions collected from retail investors. This effect may be 
mitigated if broker-dealers elect to pass exchange rebates to their 
customers. The Commission preliminarily believes that it is unlikely 
that the proposal would significantly increase the prevalence of retail 
commissions because the market to provide retail broker-dealer services 
is competitive and many of the broker-dealers that the Commission 
believes will remove their conflicts receive relatively small payments 
for their order flow.\589\
---------------------------------------------------------------------------

    \587\ See supra Section V.B.3.a
    \588\ See supra Section V.C.1.
    \589\ In the case of larger broker-dealers that derive 
significant revenue from PFOF, the Commission preliminarily believes 
that they will continue to do so and incur the additional compliance 
costs discussed previously in Table 23.
---------------------------------------------------------------------------

    The Commission further believes that the costs of the rule could 
advantage larger broker-dealers and may increase barriers to entry and 
disadvantage smaller broker-dealers, potentially resulting in some of 
them exiting the market. To the extent that smaller broker-dealers are 
more likely to provide specialized services and provide innovation, 
there may be less competition to provide specialized services and less 
innovation if the proposal is adopted. Investors whose broker-dealers 
exit the market would face search costs to find alternative broker-
dealers that offer the same services; those services may be offered at 
inferior prices by remaining competitors. Some services may no longer 
be offered by any competitors if a specialized broker-dealer exits the 
market, although the Commission preliminarily believes that if there is 
sufficient demand for such a service, a broker-dealer may make it 
available to customers when demand is sufficient, as may be the case 
after one or more broker-dealers exit the market.
    While the Commission cannot predict how many retail broker dealers 
will terminate PFOF arrangements, the Commission preliminarily believes 
that under the proposal, retail broker-dealers are likely to reduce 
their use of PFOF agreements for both NMS stocks and listed options 
because engaging in such agreements would cause the broker dealer to 
incur heightened best execution obligations under the proposal and 
satisfying those obligations may cause broker-dealers to incur costs in 
excess of their PFOF revenue.\590\ Since most broker dealers that 
receive PFOF receive relatively small payments for routing their order 
flow,\591\ smaller broker-dealers in particular may consider curtailing 
this practice to avoid incurring the additional compliance costs. 
Furthermore, broker-dealers that currently pay to receive order flow 
may adjust their business models \592\ to rely less on these 
arrangements. The Commission preliminarily believes this is likely to 
reduce the share of retail customer order flow that is internalized 
because some broker-dealers that currently receive PFOF are likely to 
stop receiving it to become de-conflicted, and some broker-dealers that 
pay PFOF will internalize fewer of the orders they receive to comply 
with the proposal. If this occurs, broker-dealers that reduce their 
reliance on PFOF arrangements would also be likely to see commensurate 
decreases in their revenue. This increase in costs to execute customer 
orders may be passed on to retail investors as additional fees to 
trade, or in the form of commissions.
---------------------------------------------------------------------------

    \590\ The Commission lacks data on many broker-dealers' PFOF 
revenue, but acknowledges that some broker-dealers will realize an 
indirect cost from forgone PFOF revenue. In the case where a broker-
dealer receives PFOF from another broker-dealer or trading venue, 
this will constitute a transfer from one registrant to another, and 
will not increase industry costs in aggregate. In cases where a 
broker-dealer passes PFOF on to its customers to avoid conflicts, 
this payment may reduce investor trading costs and increase industry 
costs in aggregate.
    \591\ Many broker-dealers receive PFOF, but the majority of PFOF 
is received by a small group of broker-dealers. Consequently, many 
broker-dealers receive relatively small PFOF payments, although for 
some broker-dealers these small payments may contribute 
significantly to profits, depending on other revenue sources. 
Regardless of this relative magnitude, the costs to comply with the 
proposal's heightened standards may be prohibitive for broker-
dealers that receive relatively modest PFOF revenue, and their 
compliance costs may exceed the revenue the broker-dealer receives 
for engaging in conflicted transactions. See supra Section V.B.3 and 
Section V.C.2.(a)i.
    \592\ If broker-dealers choose to pass exchange rebates on to 
their customers, they may incur additional costs associated with 
updating systems to account for these payments.
---------------------------------------------------------------------------

    Similarly, the Commission preliminarily believes that firms that 
currently pay to receive retail order flow would likely receive less of 
such directed order flow. While this may be a cost savings to those 
firms, it is likely to represent a reduction in what was previously a 
profitable business operation, and the lost profit opportunities are 
not likely to offset any cost savings. It is possible such firms may 
choose to compete on other venues (ATSs and exchanges) to participate 
in this order flow, but the Commission preliminarily believes that 
profits from such a venture are unlikely to be comparable to the 
profits of internalization because, on other venues, other broker-
dealers would be able to compete with these broker-dealers to provide 
liquidity to these orders which should reduce the cost of that 
liquidity to investors.\593\ If these firms reduce the capital they 
currently allocate to providing liquidity, spreads could increase 
particularly in the short-term because fewer market participants would 
be competing to provide liquidity. However, the Commission 
preliminarily believes that the market to provide liquidity to retail 
orders is competitive and other competitors are

[[Page 5534]]

likely to increase their capital provision over time to satisfy 
demand.\594\
---------------------------------------------------------------------------

    \593\ See supra Section V.C.1.
    \594\ See infra Section V.D.3.
---------------------------------------------------------------------------

    In addition to costs discussed previously, broker-dealers that 
engage in conflicted transactions would face heightened standards under 
the proposal. These standards would require them to obtain and assess 
information beyond what would be required of a broker-dealer that is 
not conflicted, including price, volume, and execution quality, in 
identifying a broader range of markets beyond those identified as 
material potential liquidity sources. The Commission preliminarily 
believes that this requirement may be interpreted very differently by 
different broker-dealers, and may prove challenging in markets for some 
asset classes where the number of potential markets is limited and 
broker-dealers may effectively be checking all reasonably available 
prices in current practice.
i. Additional Other Costs in NMS Stocks and Options
    In equities, the Commission preliminarily believes that firms that 
internalize retail order flow provide liquidity to a wide range of 
securities, including those that are very thinly traded. In fact, 
fulfillment of these more difficult to fill orders may be part of a 
service bundle that internalizers provide to broker-dealers that route 
them their order flow. Generally, thinly traded securities are more 
risky for liquidity providers because quotation data are relatively 
sparse compared to more heavily traded securities, such quotations are 
more likely to be stale, and there may be no market makers that have a 
duty to maintain two-sided quotes in these securities.\595\ It is 
possible that execution prices may be less favorable for retail 
investors under the proposal if liquidity providers that previously 
paid for order flow and fulfilled these difficult to execute orders 
under such arrangements dedicate less capital to making markets in 
these securities. It is possible that execution times for these 
securities may be significantly delayed as broker-dealers would need to 
search for liquidity to fill these orders, and this delay is an 
additional factor that a broker-dealer would need to consider in the 
order's execution quality. It is also possible that execution prices 
for these transactions may be less favorable than they might be under a 
PFOF arrangement because the price improvement statistics on these 
orders are currently included in the criteria retail broker dealers 
evaluate in choosing executing broker dealers.\596\ However, the 
Commission preliminarily believes that the market to provide liquidity 
to retail orders, including orders in less liquid securities is 
competitive. If the proportion of such orders entering the market 
beyond internalizers increases, it is likely other broker-dealers that 
provide liquidity to asset markets would increase liquidity provision 
to this segment of the equities market. The costs realized by investors 
transacting in these securities may increase, however, because broker-
dealers are unlikely to provide additional liquidity unless they can 
cover their costs and earn appropriate risk-adjusted returns.\597\
---------------------------------------------------------------------------

    \595\ See, for example, Menkveld, Albert J. and Wang, Ting, How 
do designated market makers create value for small-caps?, 16 Journal 
of Financial Markets 571 (2013), available at https://www.sciencedirect.com/science/article/pii/S1386418112000535#aep-abstract-id6; Craig, Louis, Kim, Abby, and Won Woo, Seung, Pre-trade 
Information in the Municipal Bond Market, (SEC Working Paper, July 
2018), available at dera_wp_pre-
trade_information_in_the_municipal_bond_market.pdf (sec.gov)https://www.sec.gov/files/dera_wp_pre-trade_information_in_the_municipal_bond_market.pdf and Craig et al, 
supra note 471.
    \596\ Broker-dealers that pay to receive order flow may be 
providing better execution to difficult to fill orders because the 
execution in such orders is an element upon which their clients 
evaluate them. Consequently, outside of PFOF arrangements, such 
orders might receive inferior execution quality to what they would 
receive under such an arrangement.
    \597\ Securities for which it is more difficult to find trading 
counterparties often are characterized by infrequent trades, less 
frequent quotations and lower market capitalization. These factors 
are likely to increase the adverse selection risk liquidity 
providers face when providing liquidity to the market for these 
securities.
---------------------------------------------------------------------------

    In addition to the costs discussed above, the Commission 
preliminarily believes that in the market for listed options, the NBBO 
spreads set by resting best displayed liquidity could be wider and the 
depths at the best market prices could be thinner because of the 
increasing order flow segmentation under the proposal. Specifically, 
liquidity providers could deploy less capital to provide the resting 
displayed liquidity in the limit order books in favor of price 
improvement auctions or price improving inside the NBBO. Because the 
proposed rules could result in potentially more efficient price 
improvement auctions and/or potentially more retail orders being routed 
to the auctions for price improvement opportunities, order flow routed 
there could become less impactful and more profitable. At the same 
time, the orders filled by the lit quotes would become more impactful 
and impose relatively more adverse selection risk on the liquidity 
providers who provide resting displayed liquidity, in part due to the 
increased level of order segmentation. Less capital from liquidity 
suppliers would make the liquidity in order books thinner and 
potentially widen the NBBO. Wider NBBO spread and thinner depth would 
inevitably lead to worse execution quality to the orders that are not 
exposed to price improvement opportunities. To the extent that the 
proposal would make a subset of retail customers better off by 
improving the prices those customers receive, it would correspondingly 
adversely affect other customers by harming prices and liquidity in 
displayed quotes.
ii. Additional Other Costs in Fixed Income Securities
    With respect to fixed income securities trading, the Commission 
preliminarily believes that the proposal could adversely affect 
liquidity. To the extent that broker-dealers no longer practice last-
look in conducting RFQs for the purpose of internalization, these 
broker-dealers could earn less profits from principal trading that 
relies on broker-dealers' capacity to commit capital for carrying 
inventory. A reduction in capital commitment for fixed income 
securities intermediation could result in lower liquidity, particularly 
for those trades that rely on broker-dealers' capacity to provide 
immediacy by trading on a principal basis (by taking fixed income 
securities into inventory). This would result in an increase in pre-
arranged trades between a buyer and a seller (so that the broker-dealer 
can quickly offset its position in the opposite direction), which take 
a longer time to execute, increasing transaction costs of market 
participants.
    To the extent that broker-dealers handling retail customer orders 
choose to conduct RFQs to fulfill the proposed requirements with 
respect to conflicted transactions, this could result in an increase of 
RFQs to a degree that RFQ messages would overwhelm market participants 
(e.g., broker-dealers responding to RFQs). This could increase the 
number of RFQs with no or few responses resulting in less competitive 
prices and worse execution quality for retail customer trades. However, 
the Commission preliminarily believes that this effect would be 
mitigated as more market participants adopt automation in the process 
for responding to RFQ messages to be responsive to RFQs, and thus, 
attract more order flow.
3. Efficiency, Competition, and Capital Formation
    The Commission has considered the effects of the proposed 
amendments on

[[Page 5535]]

efficiency, competition, and capital formation, and discussed these 
effects below.
(a) Competition
i. Market for Trading Services
    The Commission preliminarily believes that the proposal would 
improve competition among trading venues. The proposal requires that 
broker-dealers consider a wider range of trading venues. In the equity 
and option markets, the Commission also preliminarily believes that the 
proposal would reduce the proportion of retail order flow that is 
internalized. The Commission preliminarily believes that this would 
increase competitive opportunities for exchanges and other trading 
venues because more broker-dealers will consider exchanges and ATSs as 
potential execution venues. In the fixed income securities markets, the 
proposal could promote competition among trading venues to the extent 
that broker-dealers expose retail customer orders broadly across 
multiple trading venues for the purpose of executing riskless principal 
trades and for the purpose of internalization.
    In the market for NMS stock and options trading services, the 
Commission preliminarily believes that competition would increase. To 
the extent that the proposal's requirement that broker-dealers 
incorporate material sources of liquidity into their order handling 
practices causes broker-dealers to consider additional execution venues 
such as additional exchanges or ATSs for their orders, competition 
between trading venues may increase. Other factors that may encourage 
broker-dealers to more frequently use exchanges and ATSs for trading 
include the heightened standards for conflicted transactions and the 
heightened standards for transactions where a PFOF arrangement is in 
place.
    By considering more sources of liquidity and the heightened 
standards for broker-dealers in conflicted transactions, it allows for 
venues such as exchanges and ATSs to compete for order flow that may 
have been internalized by wholesalers before the effects of this rule. 
The requirement to consider price improvement from midpoint liquidity 
before internalizing a retail trade could increase competition by 
resulting in more trading venues competing to offer programs that offer 
midpoint liquidity to retail orders. There will be increased demand for 
the services of trading service venues. Given this increased demand, 
the venues will compete to acquire as much of it as possible. Given 
this increased demand, it is possible that the fees venues charge may 
rise, particularly if large venues capture most of the increased order 
flow.
    The Commission preliminarily believes that the proposal would 
increase competition between broker-dealers to provide liquidity to 
retail orders by requiring broker-dealers that route to executing 
brokers to consider a wider range of executing venues. Currently, most 
retail order flow for which the customer has not specified an execution 
venue is routed first to an internalizer. Under the proposal, broker-
dealers would need to consider a wider range of trading venues and 
programs (such as retail liquidity programs \598\) before routing 
customer orders.
---------------------------------------------------------------------------

    \598\ See supra Section V.B.3(a).i.
---------------------------------------------------------------------------

    The Commission preliminarily believes that the proposal would have 
limited impact on the market to provide liquidity to unlisted stocks 
and thinly traded NMS stocks. As the proposal requires brokers to check 
material sources of liquidity, there will be little change if these 
sources of liquidity are few to begin with.
    The Commission preliminarily believes that the proposal would 
promote price competition and competition in price improvement 
mechanisms for listed options. Under current practice, in order to 
attract order flow from wholesalers, the exchanges that provide the 
price improvement auction mechanisms often establish asymmetric fee 
schedules charging the competing liquidity providers higher fees than 
the wholesaler for participating in the auction. This limits the 
ability of competing liquidity providers to provide more favorable 
pricing to compete with the wholesaler in those auctions, resulting in 
less than fully efficient price improvement offered to the customer. 
Under the proposal, when considering a price improvement auction, the 
wholesaler would be required to consider a broad range of price 
improvement auctions across the exchanges and evaluate the execution 
quality that may be received from these auctions and how that might be 
impacted by auction features such as asymmetric fee schedules after 
controlling for all the other factors such as the allocation model. 
Therefore, the option exchanges would have incentives to level the 
playing field by reducing the existing auction transaction fee gap to 
enhance competition in those auctions to attract the retail order flow.
    Currently, there is no mid-point liquidity protocol available 
across the limit order books operated by the exchanges for listed 
options, but the Commission is aware that there is at least one option 
exchange which provides a protocol allowing market participants to 
provide liquidity on the limit order book within the NBBO prices to 
interact with incoming marketable orders and provide price improvement 
against NBBO at the same time. The Commission preliminarily believes 
that, under this proposal, more exchanges would have incentives to 
develop protocols which would facilitate liquidity provision within the 
prevailing NBBO spread because broker-dealers would be required to have 
policies and procedures that specifically address opportunities for 
price improvement and other order exposure opportunities. Thus, the 
wholesaler would need to check or reasonably estimate whether there 
could be substantial midpoint or within-NBBO liquidity available on the 
limit order books operated by other exchanges. Some exchanges may even 
consider establishing protocols to allow customer order flow executed 
at the midpoint of NBBO prices, which would further increase 
opportunities for retail orders to receive price improvements.
ii. Market for Broker-Dealer Services
    The Commission preliminarily believes that the proposal could have 
mixed effects on competition in the market for broker-dealer services. 
Changes in order handling practices that could occur as part of the 
rule could promote competition between broker-dealers to attract 
customers. However, the costs of the rule could advantage larger 
broker-dealers and may increase barriers to entry and disadvantage 
smaller broker-dealers, potentially resulting in some of them exiting 
the market.
    While modifying their policies and procedures, broker-dealers could 
change their order handling practices and also the services they 
utilize from other broker-dealers while handling customer orders. These 
changes in order handling practices could promote competition among 
broker-dealers, especially on the basis of execution quality, to 
attract customers. It could also promote competition among broker-
dealers offering services to other broker-dealers to attract new 
clients.\599\
---------------------------------------------------------------------------

    \599\ See infra Section V.B.3.a.i for discussion about 
competition about market for market access.
---------------------------------------------------------------------------

    The Commission preliminarily believes that the proposal may 
increase barriers to entry and disadvantage smaller broker-dealers 
because of the increased compliance costs and resulting economies of 
scale that would result under the proposal. Furthermore,

[[Page 5536]]

the proposal could result in consolidation among smaller broker-dealers 
or these broker-dealers being absorbed (via merger) by larger broker-
dealers to take advantage of the economies of scale. Such a change to 
the competitive landscape could also reduce competition in the market 
for trading services. In the case of broker-dealers that meet the 
definition of introducing broker under FINRA rules but do not do so 
under the proposal, compliance costs may be high.\600\ Some of these 
broker-dealers may adjust their business models to no longer compete as 
introducing brokers, and new entrants may be discouraged due to 
elevated costs of complying with the proposal.
---------------------------------------------------------------------------

    \600\ See supra Section V.C.2.
---------------------------------------------------------------------------

    Additionally, the proposed rules for conflicted transactions for 
retail orders and on introducing brokers accepting PFOF may reduce the 
PFOF retail brokers receive in the equity and options markets. To the 
extent that these firms do experience a major reduction in their PFOF 
revenue, they may face pressure to develop other lines of revenue, 
including the addition of commissions and/or fees for trading and 
advisory services, although broker dealers that have heavily promoted 
their commission-free business model would be more reticent to add 
commissions and/or fees, despite the loss of PFOF.
    To the extent that some retail brokers do resume charging 
commissions, they may be constrained by competitive pressures in the 
commission rates they can charge. Larger retail brokers that do not 
accept equity PFOF could continue to provide commission-free trading. 
This, in turn, would put competitive pressure on the extent to which 
retail broker-dealers could charge commissions and still retain 
customers. If the ability of smaller retail brokers to charge 
commissions is constrained by competition, it could increase the 
competitive advantage of larger retail brokers, which could raise the 
barriers to entry for new brokers and cause some smaller retail brokers 
to exit the market.
    The Commission is unable to quantify the likelihood that one or 
more smaller brokers would cease operating. Even if one or more small 
brokers were to exit, while the Commission acknowledges that services 
to niche markets more likely served by smaller broker-dealers might 
decline, the Commission does not believe this would significantly 
impact competition in the larger market for generalized broker services 
because the market is served by multiple large competitors. 
Additionally, the market would likely still be served by many small 
competitors. Consequently, if a smaller retail broker were to exit the 
market, demand is likely to be swiftly met by existing competitors. The 
Commission recognizes that small brokers may have unique business 
models that are not currently offered by competitors, but the 
Commission believes a competitor could create similar business models 
previously offered by exiting firms if demand were adequate. Moreover, 
if the services generated by these business models are not provided by 
existing competitors, it seems likely new entrants would provide them 
if demand were sufficient.
iii. Market for Market Access
    The Commission preliminarily believes that the proposal would 
increase competition in the market for market access. A number of 
aspects of the proposal could result in more broker-dealers utilizing 
the services of a routing or executing broker or engaging in more 
extensive comparisons of the services and execution quality of 
different routing or executing brokers. This would increase competition 
among broker-dealers offering order routing and execution services to 
other broker-dealers in order to attract new customers.
    The introducing broker requirements under Rule 1101(d) would 
enhance competition the market for market access in two ways. The 
requirement for introducing brokers to regularly compare the execution 
quality of their executing broker to that of other executing brokers 
would promote competition between executing brokers. Broker-dealers 
that carry customer accounts that currently route their order flow to 
an executing broker to handle in an principal capacity would not be 
eligible for the introducing broker relief under Rule 1101(d) and would 
have to develop policies and procedures for handling customer orders. 
If they utilized a routing broker as part of developing these policies 
they would need to compare different routing brokers and develop the 
criteria for selecting a routing broker as part of their policies and 
procedures. They would have to also compare their routing broker to the 
other routing brokers as part of their regular review of their policies 
and procedures. This could enhance competition among routing brokers in 
order to attract these broker-dealers as clients.
    The heightened standards for broker-dealers handling retail orders 
engaging in conflicted transactions may also promote competition in the 
market for market access. The additional requirements for broker-
dealers handling retail orders engaging in conflicted transactions may 
lead to some retail brokers that currently route orders to wholesalers 
to instead utilize the services of a routing broker to handle their 
orders.\601\ There could be increased competition among routing brokers 
to provide these conflict-free routing services to retail brokers. 
Additionally, the heightened standards for broker-dealers that accept 
PFOF may foster competition between broker-dealers to provide best-
execution services to retail broker-dealers that continue to accept 
PFOF. Because the proposal would require these retail broker-dealers to 
document their compliance with the best execution standard for 
conflicted transactions, including all efforts to enforce their best 
execution policies and procedures for conflicted transactions and the 
basis and information relied on for their determinations that such 
conflicted transactions would comply with the best execution standard, 
this could increase competition among broker-dealers that pay for order 
flow to provide adequate information to broker-dealers routing to them, 
allowing those broker-dealers to improve their customers' execution 
quality. Without such assistance from broker-dealers that pay for order 
flow, the broker-dealers that provide order flow may be faced with the 
need to perform significant data analysis on multiple executing broker-
dealers if they intend to continue receiving PFOF. For some broker-
dealers, the expense of conducting such analysis is likely to exceed 
the revenue they receive for directing their order flow to executing 
broker-dealers that pay to receive their order flow. These broker-
dealers may choose to stop receiving PFOF or pass all PFOF they receive 
through to their customers in order to avoid these expenses. 
Consequently, broker-dealers that pay for order flow are likely to be 
incentivized to assist their customer broker-dealers in complying with 
the rule to avoid losing their order flow. It is also possible that 
broker-dealers that currently receive PFOF may simply maintain their 
routing practices and stop accepting PFOF to reduce their compliance 
burden under the proposal.
---------------------------------------------------------------------------

    \601\ See supra Section V.C.1.a.
---------------------------------------------------------------------------

    With respect to fixed income securities trading, the proposed 
requirements with respect to introducing brokers and regular review of 
execution quality could promote competition in the market for market 
access (i.e., amongst executing brokers). Brokers that outsource 
execution services for fixed income securities

[[Page 5537]]

would conduct regular reviews and compare execution quality in the 
selection of their executing brokers, which would promote competition 
and innovation in the fixed income market for market access. Executing 
brokers would compete on fees, efficiency in order handling procedures, 
and efficiency in the selection of trading venues or counterparties, 
which in turn, would result in better execution quality for retail 
customer trades.
(b) Efficiency
    The Commission preliminarily believes the proposal would improve 
price efficiency in asset markets because broker-dealers will need to 
consider a wider range of markets and execution methodologies when 
routing customer orders. By facilitating competition between a larger 
pool of liquidity providers, more liquidity providers may be 
incentivized to compete to provide liquidity. This would provide a 
wider range of quotes and facilitate price efficiency to the extent 
that the expanded liquidity pool provides more informative quotes.
    While the Commission preliminarily believes the proposal could 
improve retail order execution prices,\602\ the Commission recognizes 
that it could take longer for conflicted orders to be executed because 
broker-dealers might need to consider additional venues before routing 
an order, and they may need to perform more routings before the order 
is fulfilled. It is possible that market prices could move unfavorably 
during this time.
---------------------------------------------------------------------------

    \602\ See supra Section V.C.1.
---------------------------------------------------------------------------

(c) Capital Formation
    The Commission preliminarily believes that the proposal may improve 
capital formation by incentivizing broker-dealers to allocate 
additional capital to the provision of liquidity. The proposal's 
requirement that broker-dealers consider additional pricing information 
and execution venues before routing customer orders and heightened 
standards for best execution for conflicted transactions may result in 
more order flow being routed to venues with competitive quotations. If 
such quotations are more likely to result in executions, particularly 
with retail order flow that usually carries lower adverse selection 
costs to broker-dealers,\603\ broker-dealers would have greater 
incentives to provide such quotations.
---------------------------------------------------------------------------

    \603\ See, e.g., Barber, Brad M., and Terrance Odean, Trading is 
hazardous to your wealth: The common stock investment performance of 
individual investors?, 55 J. Fin. 773 (2000).
---------------------------------------------------------------------------

    The Commission also recognizes that liquidity provision in thinly 
traded and unlisted securities may decrease. Currently, broker-dealers 
with business models that specialize in internalizing retail order flow 
may be providing liquidity in very thinly traded securities as part of 
a bundle of services that they provide to their customers. If the 
internalization of retail orders decreases as the Commission 
preliminarily believes it might, broker-dealers may be faced with 
difficult liquidity searches when their customers wish to trade thinly 
traded or unlisted securities. It is possible that an increase in 
retail demand for liquidity in these securities may be met with an 
increase in liquidity supply from firms that are more willing under the 
proposal to make markets in these securities than they were when a 
greater proportion of retail flow was internalized. To the extent that 
broker-dealers' willingness to make markets in these securities 
decreases overall, this may increase trading costs for these securities 
and make it more difficult for companies to go public before they are 
eligible to be listed on registered exchanges.

D. Reasonable Alternatives

1. SEC Adopts FINRA Rule 5310 and MSRB Rule G-18 Best Execution Rules
    As an alternative, the Commission could adopt existing FINRA Rule 
5310 and MSRB Rule G-18 rules and associated guidance. This alternative 
would have lower costs and benefits compared to the proposal, because 
changes \604\ in order handling practices would be unlikely to occur 
under this alternative compared to the proposal. Under this 
alternative, improvements to investor protection might be less than 
those from the proposed rules.
---------------------------------------------------------------------------

    \604\ See supra Sections V.C.1, V.C.2, and V.C.3 for the 
Commission's projections on the effect of broker-dealers' order 
handling practices.
---------------------------------------------------------------------------

    This alternative would not include the enhanced requirements within 
proposed Rule 1101(b) related to transactions with broker-dealer 
subject to specified conflicts of interest, which represent the 
majority of retail transactions in the equity, options, and fixed 
income markets.\605\ Proposed Rule 1101(b) would require a broker-
dealer engaging in conflicted transactions to address additional 
considerations in its best execution policies and procedures, and to 
document its compliance with the best execution standard for such 
transactions. To the extent that the proposal would have resulted in 
improved execution quality for the retail orders by reducing the 
inefficiencies \606\ present in existing conflicted transactions, this 
alternative would result in less improvement in retail investor 
execution quality compared to the proposal.
---------------------------------------------------------------------------

    \605\ See supra Section IV.C.1 and Section IV.C.2.
    \606\ The inefficiencies associated with existing conflicts of 
interest include, but are not limited to, the trade-off between 
payment for order flow and price improvement for equities (See supra 
Section V.B.3.a.iii.) and the less than fully competitive price 
improvement auction mechanisms for options (See supra Section 
V.B.3.a.II.b.).
---------------------------------------------------------------------------

    Under this alternative, broker-dealers would still qualify for 
relief under FINRA Rule 5310.09(c), instead of having to meet the 
introducing broker requirements to qualify for the propose relief under 
proposed Rule 1101(d). Broker-dealers that meet the requirements of 
FINRA's relief but would not have met the requirements of proposed Rule 
1101(d) would experience lower compliance costs under this alternative 
because they would not have to develop or update their own policies or 
procedures or adjust their business model to de-conflict from their 
executing broker.\607\ The costs of the proposal could advantage larger 
broker-dealers, increase barriers to entry for new broker-dealers, and 
disadvantage smaller broker-dealers, which could potentially result in 
some of them existing the market.\608\ The lower compliance costs under 
this alternative would increase competition among broker-dealers 
compared to the proposal by lowering barriers to entry for new broker 
dealers and decreasing the likelihood that smaller broker-dealers would 
exit the market.\609\
---------------------------------------------------------------------------

    \607\ See supra Section V.C.1.
    \608\ See supra Section V.C.3.(a).ii for a discussion of the 
effects of the proposal on competition between broker-dealers.
    \609\ See id.
---------------------------------------------------------------------------

2. Require Order Execution Quality Disclosure for Other Asset Classes
    Standardized information on the execution quality available at 
different market centers and for different executing brokers could aid 
broker-dealers in their best execution reviews. However, only market 
centers executing trades in NMS stocks are required to report 
standardized execution quality statistics under Rule 605.\610\ This 
alternative would require execution quality disclosures from market 
centers and large broker-dealers in the options and fixed income 
markets. In addition to execution quality data at the individual 
security-level, similar to Rule 605 data, the execution quality 
disclosures would include aggregated

[[Page 5538]]

standardized summary reports of key execution quality statistics, which 
would allow smaller and less sophisticated investors to analyze and 
make comparisons between their own broker-dealers and other broker-
dealers. Compared to the proposal, these disclosures may better allow 
investors to evaluate execution quality for their orders within their 
broker-dealer's overall executions in a given security and facilitate 
broker-to-broker comparison of order execution beyond equities markets. 
Although the proposed rule would require each broker-dealer to 
establish policies and procedures with greater specificity, this does 
not necessarily mean that the order handling practices reach the same 
level of efficiency across the broker-dealers. It is possible that some 
broker-dealers would handle the customer orders less efficiently than 
others. Under the alternative, broker-dealers, which engage in less 
efficient order handling practices may recognize the inadequacy when 
comparing their own execution quality statistics with those disclosed 
by the more efficient broker-dealers, and improve the order handling 
practices accordingly to attract order flow. Therefore, increased 
transparency may reduce differences in execution quality within 
specific security-time intervals, particularly in the corporate and 
municipal bond markets. Broker-dealers may be able to incorporate these 
execution quality statistics into their best execution policies and 
procedures, which could improve their ability to identify market 
centers that offer better execution quality, resulting in potentially 
greater improvements in order handling compared to proposal. This 
alternative may increase competition among broker-dealers and trading 
centers in asset classes other than NMS stocks compared to the proposal 
by promoting competition based more on the basis of publicly available 
execution quality and less on other inducements to attract more 
customers/order flow.
---------------------------------------------------------------------------

    \610\ The Commission also is proposing to amend the order 
execution quality disclosures required by Rule 605. See Securities 
Exchange Act Release No. 96494 (Dec. 14, 2022). The Commission 
encourages commenters to review that proposal to determine whether 
it might affect their comments on this proposing release.
---------------------------------------------------------------------------

    However, developing these execution quality disclosures may cause 
market centers and large broker-dealers in the options and fixed income 
markets to incur higher startup costs relative to the proposal as 
market centers would need to develop systems to produce and post such 
reports. To the extent that certain market centers already have systems 
or infrastructures in place to produce execution quality metrics, they 
would incur costs to modify the current systems and/or the format of 
the reports in order to comply with the standards set forth in the 
execution quality disclosure requirements. Additionally, execution 
quality disclosures for the options and fixed income markets may be 
complex and difficult to produce for a number of reasons. First, the 
number of individual securities in the options and fixed income markets 
is significantly larger than in the equity markets. The corporate bond 
market has approximately 58,000 outstanding issues, more than fourteen 
times the number of NMS listed equities.\611\ This number is small in 
comparison to the municipal bond market which has approximately one 
million outstanding issues.\612\ Individual equities can have hundreds 
of individual outstanding options contract identifiers. Second, fixed 
income and options securities have defined maturities, which might be 
shorter than a disclosure interval (i.e., a contract with a week 
expiration relative to a monthly reporting period). This security-level 
inconsistency may present complications in evaluating time series 
changes in execution quality. Finally, a broad lack of pre-trade 
information in fixed income markets make execution quality statistics 
such as effective-quoted spread ratios difficult, if not impossible, to 
calculate for many securities.
---------------------------------------------------------------------------

    \611\ See O'Hara and Zhou, supra note 469.
    \612\ See Muni Facts, Municipal Securities Rulemaking Board, 
available at https://www.msrb.org/News-and-Events/Muni-Facts.
---------------------------------------------------------------------------

3. Utilize FINRA and MSRB Approach To Introducing Broker
    The Commission could alternatively propose to remove the 
requirements for introducing and executing brokers related to PFOF, 
carrying firm status, and affiliation. This definition would more 
closely align with FINRA and MSRB approach to introducing brokers. 
FINRA Rule 5310.09(c) applies to a member that routes its order flow to 
another member that has agreed to handle that order flow as agent for 
the customer (e.g., a clearing firm or other executing broker-dealer), 
whereas the proposal would additionally require the firm not to be a 
carrying firm, accept PFOF from an executing broker, or route customer 
orders to an affiliated executing broker. Under this alternative, it is 
likely that most brokers that qualify under FINRA Rule 5310(c) would 
qualify as introducing brokers under proposed Rule 1101(d). By 
categorizing more broker-dealers as ``introducing brokers,'' the 
overall compliance cost carried by the market would be lower as 
compared to the proposed rule. This alternative would likely cause 
fewer small broker-dealers, which currently qualify for relief under 
FINRA Rule 5310.09(c) and MSRB Rule G-18.08(b) and wish to remain 
conflicted or still carry customer accounts, to change business models 
to comply with the alternative rule.\613\
---------------------------------------------------------------------------

    \613\ See supra Section V.C.1.
---------------------------------------------------------------------------

    The brokers who benefit under this alternative are those who 
currently qualify for relief under FINRA Rule 5310.09(c) and MSRB Rule 
G-18.08(b) but fail at least one of the following criteria include in 
proposed Rule 1101(d): (i) does not carry customer accounts and does 
not hold customer funds or securities, (ii) has entered into an 
arrangement with an unaffiliated broker or dealer that has agreed to 
handle and execute on an agency basis the introducing broker's customer 
orders (``executing broker''), and (iii) has not accepted any monetary 
payment, service, property, or other benefit that results in 
remuneration, compensation, or consideration from the executing broker 
in return for the routing of the introducing broker's customer orders 
to the executing broker. Thus, many current broker-dealers that qualify 
for relief under the FINRA and MSRB rules, and to some extent their 
executing brokers, would have lower costs of compliance since there 
would be no need for those broker-dealers to change their business 
models. Also, this alternative may lower barriers to entry for some 
potential introducing brokers. However, under this alternative, the 
benefits of the proposal would also be diminished. With more broker-
dealers meeting the proposal's definition of introducing broker, the 
benefits compared to the proposal would be lower. Specifically under 
this alternative, the Commission preliminarily believes that instead of 
changing their business models to stop being conflicted, introducing 
brokers and their executing brokers would be more likely to engage in 
conflicted transactions, and more introducing brokers would receive 
PFOF. Therefore, the execution quality benefits would be lower since 
the incentive created by the PFOF would persist, potentially leading to 
less efficient order routing which may benefit broker-dealers at the 
expense of retail customers.
4. Ban or Restrict Off-Exchange PFOF
    Rather than requiring heightened best execution standards for 
transactions involving PFOF, alternatively the Commission could ban or 
restrict off-exchange PFOF in the equity and options markets. Under 
this alternative, registered exchanges would still be allowed to pay 
rebates.

[[Page 5539]]

    Compared to the proposal, this alternative may further reduce 
conflicts of interest within and improve order handling practices by 
retail broker-dealers. A 2016 study sponsored by CFA Institute examined 
changes in equity market execution quality following the Financial 
Services Authority (FSA) 2012 guidance banning PFOF in the United 
Kingdom.\614\ The study describes internalization under PFOF as a 
scenario that can increase the probability of conflicted equity and 
options transactions, particularly for retail investors, in the United 
Kingdom. The study finds that over the time period from 2010 to 2014, 
the proportion of retail-sized trades executing at the best quoted 
price increased from around 65% to more than 90%. The authors claim 
these findings suggest that the integrity of the order book improved.
---------------------------------------------------------------------------

    \614\ See Sviatoslav Rosov, Payment for Order Flow in the United 
Kingdom: Internalisation [sic], Retail Trading, Trade-Through 
Protection, and Implications for Market Structure, CFA Institute 
(2016), available at https://www.cfainstitute.org/en/advocacy/policy-positions/payment-for-order-flow-in-the-united-kingdom.
---------------------------------------------------------------------------

    Alternatively, rather than an outright ban on PFOF, the Commission 
could impose specific restrictions on PFOF that could allow retail 
broker-dealers to pass through payments to end customers in cases where 
it would permit best execution. For example, a retail broker-dealer may 
consider two order execution venues with different executable prices: 
the first venue has a more favorable price, and the second venue 
provides PFOF to the retail broker-dealer. If the difference in price 
between the two venues is smaller than the PFOF for the order in 
question, the retail-broker could return to the customer the portion of 
PFOF, which is greater than the venue price difference.
    A ban or restriction on PFOF would increase the likelihood of 
higher commissions for retail investors or an increase in the cost of 
other services offered by retail broker-dealers compared to the 
proposal. It may also further reduce competition between broker-dealers 
compared to the proposal. Larger broker-dealers with more diversified 
business models may be more likely to expand their market share and 
smaller broker-dealers who are more dependent on PFOF revenue streams 
may be more likely to exit the market.
5. Require Broker-Dealers To Utilize Best Execution Committees
    The Commission considered requiring each broker-dealer to maintain 
a best execution committee to regularly review the broker-dealer's best 
execution policies, procedures and the results of its efforts to secure 
best execution for its customers.
    Requiring such a committee and defining its membership might 
improve execution quality by ensuring sufficient expertise is recruited 
to establish and monitor the broker-dealer's best execution efforts. 
Furthermore, requiring such a committee might increase executive 
attention to best execution, potentially improving execution quality 
for the broker-dealer's customers.
    Requiring such a committee and defining its membership would entail 
certain costs in addition to those resulting from the proposed rules. 
First, if the Commission were to define the membership of the 
committee, it is likely that individual broker-dealers' organizational 
structures would vary in ways that would make a defined membership 
structure a poor fit because of, for instance, a single employee 
performing multiple roles, or individual roles handled by groups rather 
than a single individual. In addition, broker-dealers are diverse in 
their business plans and operations and a role that might be considered 
critical at one broker-dealer (such as managing fixed income executing 
brokers in thinly traded bonds) might be inapplicable at another 
broker-dealer that does not trade in these instruments.
    If the Commission were to require the committee and not define its 
membership, broker-dealers might assign to the committee less senior 
staff or staff whose roles are not germane to achieving best execution 
for customer orders, significantly limiting the benefits of 
establishing such a committee. Furthermore, based on the its 
experience, the Commission believes that broker-dealers, particularly 
large broker-dealers that are more likely to continue to engage in 
conflicted transactions if the proposed rules are adopted, may have 
such a committee already established, further limiting the potential 
benefits of such a provision.
6. Require Order-by-Order Documentation for Conflicted or All 
Transactions
    The Commission considered requiring each broker-dealer to document 
on an order-by-order basis, for conflicted or all transactions, the 
data that it considered as it handled the order. Such a requirement 
might offer two benefits beyond the benefits of the proposed rules. 
First, it might improve the quality of the broker-dealer's regular 
review of its execution practices compared to the proposed rules. 
Because the broker-dealer would analyze orders on a case-by-case basis, 
it might identify routing practices that could be changed to improve 
customer order execution quality. Second, it might improve regulators' 
ability to oversee the broker-dealer's efforts to provide best 
execution to its customers relative to the proposed rules as such 
records would be available to regulators during examinations of the 
broker-dealer or upon request.
    The Commission preliminarily believes that such a requirement would 
offer greater potential benefits for conflicted transactions because 
broker-dealers engaging in such transactions have greater incentives to 
route orders in a manner that might not result in the best execution 
for customers.
    Based on its experience, the Commission believes that some broker-
dealers, particularly the largest broker-dealers that are likely to 
continue to engage in conflicted transactions if the proposed rules are 
adopted, already maintain this type of documentation for both internal 
review and operational purposes. Nevertheless, the requirement would be 
costly. Broker-dealers that do not already retain this data likely have 
chosen not to do so because the data are not operationally valuable to 
them for business purposes, and they believe that they are satisfying 
their best-execution obligations based on other data that they have 
available. For these broker-dealers, the requirement could impose 
considerable costs. They would need to alter information technology 
systems to capture this data, including contemporaneous pricing data 
and routing records, some of which (such as prices offered in response 
to a RFQ and much information related to fixed income and digital 
crypto assets) is not incorporated into other regulatory data sources 
such as CAT and thus might be stored on systems not integrated with 
other order routing systems, or systems that capture regulatory data. 
Processing this data might be computationally demanding, particularly 
for options, that have very high quotation traffic. Furthermore, 
creating and maintaining software to produce this documentation would 
require significant effort by highly skilled programmers, which would 
further increase the costs associated with such a requirement. As 
discussed previously,\615\ the Commission preliminarily believes that 
broker-dealers that elect to refrain from conflicted transactions if 
the proposed rules are adopted are more likely to be smaller broker-
dealers and these costs, many of which are fixed, are more likely to 
result in the broker-dealer changing

[[Page 5540]]

its business model or exiting the market, while the aggregate benefits 
to investors of such a requirement for smaller broker-dealers is likely 
to be smaller than for larger broker-dealers that handle more customer 
orders.
---------------------------------------------------------------------------

    \615\ See Section V.C.2.ii, supra.
---------------------------------------------------------------------------

7. Staggered Compliance Dates
    The Commission considered an alternative approach where smaller 
broker-dealers would be given more time to comply with the proposed 
rules. Having longer to comply might ease implementation for smaller 
broker-dealers that are less likely to have specialized staff to 
conduct tasks required for compliance. However, the later compliance 
date for smaller broker-dealers would also delay the realization of the 
proposed rules' benefits for investors.
    The Commission preliminarily believes that the cost savings of the 
alternative could be small. Specifically, under the proposed rules, 
smaller broker-dealers would likely qualify as introducing brokers and 
would likely de-conflict rather than continue to engage in conflicted 
transactions and incur the additional costs associated with the rule 
requirements that introducing brokers are exempt from under Rule 
1101(d).\616\ Consequently, the Commission preliminarily believes 
smaller broker-dealers would have fewer requirements to implement under 
the proposal, mitigating the burden of implementation relative to 
larger broker-dealers. In addition, the Commission believes that 
smaller broker-dealers would likely engage external parties for review 
of proposed policies and procedures and for assistance in conducting 
annual reviews; this reliance on external resources for implementation 
activities would likely mitigate the burden of implementation on 
current staff.\617\ These mitigations would limit the potential cost 
savings of delaying implementation for smaller broker-dealers.
---------------------------------------------------------------------------

    \616\ See supra section V.C.2.a for discussion of carrying and 
conflicted broker-dealer costs.
    \617\ See supra section V.C.2.a).ii for the discussion about the 
cost associated with small broker-dealers utilizing external 
sources.
---------------------------------------------------------------------------

E. Request for Comments

    The Commission is sensitive to the potential economic effects, 
including costs and benefits, of the proposed rule. The Commission has 
identified certain costs and benefits associated with the proposal and 
requests comment on all aspects of its preliminary economic analysis, 
including with respect to the specific questions below. The Commission 
encourages commenters to identify, discuss, analyze, and supply 
relevant data, information, or statistics regarding any such costs or 
benefits. In addition to our general request for comments on the 
economic analysis associated with the proposed rules and proposed 
amendments, we request specific comment on certain aspects of the 
proposal:
    159. What are commenters' views of the Commission's economic 
rationale for the proposed rule?
    160. What are commenters' views of the Commission's 
characterization of the relevant baseline, against which it considered 
the effects of the proposal?
    161. What are commenters' views of the Commission's 
characterization of the current legal and regulatory framework?
    162. What are commenters' views of the Commission's 
characterization of the conflicts of interest in order handling and a 
need for heightened best execution requirements with respect to 
conflicted transactions?
    163. What are commenters' views of the Commission's 
characterization of the conflicts of interest in order handling with 
respect to PFOF?
    164. What are commenters' views of the Commission's 
characterization of the conflicts of interest in order handling with 
respect to principal trading?
    165. What are commenters' views of the Commission's 
characterization of order handling and execution?
    166. What are commenters' views of the Commission's 
characterization of retail customer order handling and execution for 
NMS stocks?
    167. What are commenters' views of the Commission's 
characterization of retail customer order handling and execution for 
listed options? Do commenters believe that the majority of retail 
orders are routed to the wholesalers in exchange of payment for order 
flow by the retail brokers? Do commenters believe whether there is a 
trade-off between price improvement received for those retail orders 
and payment for order flow?
    168. What are commenters' views of the Commission's 
characterization of retail customer order handling and execution for 
fixed income securities? The Commission requests information on the 
number of trading venues (e.g., ATSs, RFQ platforms, broker's broker 
platforms, single platforms), to which broker-dealers currently 
maintain access, for the purpose of executing and exposing retail 
customer orders. The Commission requests information with respect to 
how broadly broker-dealers expose retail customer orders. The 
Commission requests information with respect to how many executing 
brokers, to which broker-dealers outsource their fixed income 
securities trading services. The Commission requests information on 
what broker-dealers currently document (e.g., efforts to apply its best 
execution policies and procedures for conflicted transactions, the 
basis and information relied on for its determinations that such 
conflicted transactions would comply with the best execution standard, 
identifying the markets checked, internal quotes, external quotes, 
limit orders on trading venues) with respect to retail customer orders.
    169. The Commission requests comments on retail customer order 
handling and execution for non-NMS stock equity securities. Please 
provide any relevant details and data on retail customer order handling 
and execution of non-NMS stock equity securities for assessing the 
effects of the proposal.
    170. What are commenters' views of the Commission's 
characterization of retail customer order handling and execution for 
crypto asset securities?
    171. What are commenters' views of the Commission's 
characterization of best execution review process?
    172. What are commenters' views of the Commission's 
characterization of execution quality review?
    173. What are commenters' views of the Commission's 
characterization of best execution committees?
    174. What are commenters' views of the Commission's 
characterization of the competition in the market for broker-dealer 
services?
    175. What are commenters' views of the Commission's 
characterization of the competition in the market for NMS stock trading 
services?
    176. What are commenters' views of the Commission's 
characterization of the competition in the market for listed options 
trading services? Do commenters believe that the current features of 
price improvement auctions are favoring the wholesalers that bring the 
order flow and therefore not competitive?
    177. What are commenters' views of the Commission's 
characterization of the competition in the market for fixed income 
securities trading services?
    178. What are commenters' views of the Commission's 
characterization of the competition in the market for corporate debt 
securities trading services?
    179. What are commenters' views of the Commission's 
characterization of the competition in the market for municipal 
securities trading services?
    180. What are commenters' views of the Commission's 
characterization of

[[Page 5541]]

the competition in the market for U.S. Treasury securities trading 
services?
    181. What are commenters' views of the Commission's 
characterization of the competition in the market for market access?
    182. What are commenters' views of the Commission's assessment of 
the benefits of the proposal?
    183. To what extent do commenters believe that broker-dealers will 
make changes to their order handling procedures due to regulatory risk? 
What kind of changes might they make? Does the proposal adequately 
reflect the costs they would bear? Please provide estimates of the 
costs if possible.
    184. To what extent do commenters believe conflicted broker-dealers 
will add additional routing destinations to expose orders to venues 
beyond those identified as material potential liquidity sources for 
non-conflicted transactions?
    185. Are there some markets, in which finding venues beyond those 
identified as material potential liquidity sources for non-conflicted 
transactions difficult? Please explain. To what extent will seeking 
such additional sources of liquidity be cost efficient?
    186. What are commenters' views on the Commission's discussion of 
ATS connectivity charges?
    187. What are commenters' views of the Commission's assessment of 
the effects stemming from changes in order handling procedures?
    188. What are commenters' views on the extent to which investor 
execution quality will change under the proposal? Please explain.
    189. To what extent will carrying broker-dealers face additional 
challenges and bear additional costs to comply with the proposal beyond 
those already discussed in the Economic Analysis? Will the additional 
restrictions on carrying broker-dealers improve investor execution 
quality?
    190. To what extent do broker-dealers that would be categorized as 
``conflicted'' under the proposal already comply with the heightened 
standards described by the proposal? Will these broker-dealers face 
additional challenges and bear additional costs complying with the 
proposal beyond those already discussed in the Economic Analysis? 
Please explain.
    191. Do commenters agree with the Commission's preliminary belief 
that broker-dealers that receive relatively small payments for order 
flow or other incentives that would categorize them as conflicted, may 
choose to stop receiving those incentives to comply with the proposal? 
Does the Economic Analysis adequately reflect the cost of the proposal 
to these broker-dealers? Is the Commission's assumption that broker-
dealers with less than $100MM in total assets are likely to de-conflict 
to avoid the heightened standards associated with conflicted 
transactions reasonable?
    192. Are some broker-dealers likely to pass exchange rebates 
through to customers in order to avoid being conflicted under the 
proposal? Are there other ways for broker-dealers to deal with these 
rebates that would be less costly to implement? What costs would 
broker-dealers bear to pass exchange rebates through to their 
customers?
    193. When a broker-dealer makes changes to its order routing in 
response to execution quality analysis, what costs does it incur? Are 
the Commission's estimates of these costs reasonable?
    194. Do commenters believe that broker-dealers that currently pay 
to receive order flow may assist their broker-dealer clients in 
complying with the proposal by providing additional information on 
their policies and procedures to provide best execution? What 
information would they need to provide and how proprietary is this 
information?
    195. Do commenters believe that broker-dealers that currently pay 
to receive order flow are significant contributors to the market for 
liquidity provision in thinly traded securities? Would the proposal 
disrupt liquidity provision to securities that are thinly traded? In 
which types of securities would these effects be most pronounced?
    196. Do commenters believe that the proposal is likely to increase 
the prevalence of commissions in retail trading? In which asset classes 
would such changes be most likely?
    197. What are commenters' views of the Commission's assessment of 
the effects stemming from changes in order handling procedures for NMS 
stocks?
    198. What are commenters' views of the Commission's assessment of 
the effects stemming from changes in order handling procedures for 
listed options? Do commenters believe that more retail orders would be 
routed to price improvement auctions for execution? Do commenters 
believe that more retail orders would be routed to the exchanges that 
offer price improvement order types on the limit order books?
    199. What are commenters' views of the Commission's assessment of 
the effects stemming from changes in order handling procedures for on-
the-run U.S. Treasury securities?
    200. What are commenters' views of the Commission's assessment of 
the effects stemming from changes in order handling procedures for 
fixed income securities (excluding on-the-run U.S. Treasury 
securities)?
    201. With respect to fixed income securities trading, do commenters 
believe that the proposal (e.g., the documentation requirement with 
respect to conflicted transactions) would enhance internal review 
(e.g., internal review by best execution committee) of execution 
quality?
    202. With respect to fixed income securities trading, do commenters 
believe that the proposal would improve the execution quality of retail 
customer trades by executing brokers? Please explain.
    203. The Commission requests comments on the effects stemming from 
changes in order handling procedures for non-NMS stock equity 
securities.
    204. What are commenters' views of the Commission's description of 
the non-NMS stock equity market? Please highlight any omitted or 
misunderstood elements on this market.
    205. Do commenters agree with the Commission's characterization of 
internalization in the non-NMS stock equities market?
    206. Do commenters agree with the assertion that the non-NMS stock 
equity market can offer a high degree of transparency in liquid 
securities? Please list any sources of pre-trade and post-trade 
information used when transacting in this market.
    207. What are commenters' views on the necessity to connect to any 
given ATS when transacting in non-NMS stock equities? Please explain 
the rationale for connecting to an additional ATS in this market. If 
there are other non-ATS sources of liquidity, please describe them.
    208. Do commenters believe the effects of the proposed rule on the 
non-NMS equity securities market will cause any brokers (introducing or 
otherwise) to reduce participation in or to exit this market? Please 
describe the rationale for any response.
    209. Do commenters believe the requirements of this rule will have 
effects on the liquidity in the market for non-NMS stock equities? 
Please explain.
    210. Do commenters believe that execution quality can be accurately 
measured in the non-NMS equity securities market? If so, please 
describe methods currently used to achieve execution quality analysis.
    211. What are commenters' views of the Commission's assessment of 
the effects stemming from changes in order handling procedures for 
crypto asset securities?
    212. The Commission requests more information regarding the 
proportion of

[[Page 5542]]

crypto asset security trading that is facilitated by introducing 
brokers.
    213. The Commission requests more information regarding the level 
and variation of payment for order flow (i.e., transaction rebates) 
rates in crypto asset security markets.
    214. The Commission requests more information regarding the 
frequency of affiliated ATS routing in crypto asset security markets.
    215. The Commission requests more information regarding the 
frequency of principal trading in crypto asset security markets.
    216. What are commenters' views of the Commission's assessment of 
the costs of the proposal? Please provide as many quantitative 
estimates to support your position on costs as possible.
    217. Does the Economic Analysis account for all compliance costs? 
If not, what other compliance costs would market participants incur? 
Please provide as many quantitative estimates to support your position 
on costs as possible.
    218. With respect to fixed income securities trading, do commenters 
believe that broker-dealers would alter business practices to execute 
self-directed trades of retail customer on an agency basis rather than 
riskless principal basis to avoid being subject to the proposed 
requirements for conflicted transactions? If so, please provide 
quantitative cost estimates for converting retail self-directed trading 
business from riskless principal based to agency based.
    219. The Commission requests comments on the costs associated with 
subscribing to a fixed income ATS (e.g., subscription fees, 
connectivity fees, API). Please provide quantitative cost estimates if 
possible.
    220. What are commenters' views of the Commission's assessment of 
the effects of the proposal on efficiency, competition and capital 
formation?
    221. What are commenters' views of the Commission's assessment of 
the proposal's effects on competition?
    222. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for trading 
services?
    223. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for trading 
services for NMS stocks?
    224. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for trading 
services for listed options? In particular, would the proposed rule 
result in the exchanges improving the level of competition and 
efficiency of the price improvement auction mechanisms by offering more 
symmetric fee schedule and allocation model? Would the proposed rule 
result in certain options exchanges starting to introduce order types 
to allow liquidity provision at the midpoint of the NBBO spread?
    225. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for trading 
services for fixed income securities?
    226. The Commission requests comments on the proposal's effects on 
the competition in the market for trading services for non-NMS stock 
equity securities.
    227. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for trading 
services for crypto asset securities?
    228. What are commenters' views of the Commission's assessment of 
the proposal's effects on competition in the market for broker-dealer 
services?
    229. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for broker-
dealer services for NMS stocks?
    230. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for broker-
dealer services for listed options?
    231. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for broker-
dealer services for fixed income securities?
    232. The Commission requests comments on the proposal's effects on 
the competition in the market for broker-dealer services for non-NMS 
stock equity securities.
    233. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for broker-
dealer services for crypto asset securities?
    234. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for market 
access?
    235. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for market 
access for NMS stocks?
    236. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for market 
access for listed options?
    237. What are commenters' views of the Commission's assessment of 
the proposal's effects on the competition in the market for market 
access for fixed income securities?
    238. The Commission requests comments on the proposal's effects on 
the competition in the market for market access for non-NMS stock 
equity securities.
    239. What are commenters' views of the Commission's assessment on 
the competition in the market for market access for crypto asset 
securities?
    240. What are commenters' views on the likelihood of broker-dealers 
reducing their participation in or leaving certain markets due to 
compliance costs of the proposal? Which markets would be most affected? 
Are there particular groups of investors that may be underserved by 
these markets if the proposal is adopted?
    241. What are commenters' views of the economic effects on the 
market structure or order handling practices in the markets for 
securities based swaps, asset-backed securities, and repurchase and 
reverse repurchase agreements?
    242. What are commenters' views of the Commission's assessment of 
the effects of the proposal on efficiency?
    243. What are commenters' views of the Commission's assessment of 
the effects of the proposal on capital formation?
    244. What are commenters' views of the Commission's assessment of 
the effects of an alternative to adopt FINRA Rule 5310 and MSRB Rule G-
18 best execution rules?
    245. What are commenters' views of the Commission's assessment of 
the effects of an alternative to require order execution quality 
disclosure for other asset classes?
    246. What are commenters' views of the Commission's assessment of 
the effects of an alternative to utilize FINRA's and MSRB's definition 
of introducing brokers?
    247. What are commenters' views of the Commission's assessment of 
the effects of an alternative to ban or restrict off-exchange PFOF?
    248. Are there any additional reasonable alternatives that the 
Commission should consider? If so, please discuss that alternative and 
provide the benefits and costs of that alternative relative to the 
baseline and to the proposal.

VI. Paperwork Reduction Act

    Certain provisions of proposed Rules 1101 and 1102, as well as 
proposed Rule 17a-4(b)(17), contain ``collection of information 
requirements'' within the meaning of the Paperwork Reduction Act of 
1995 (``PRA'').\618\ The

[[Page 5543]]

Commission is submitting these collections of information to the Office 
of Management and Budget (``OMB'') for review in accordance with 44 
U.S.C. 3507(d) and 5 CFR 1320.11. The titles for these collections of 
information are: (1) ``Regulation Best Execution''; and (2) Rule 17a-
4--Records to be Preserved by Certain Exchange Members, Brokers and 
Dealers (OMB control number 3235-0279).\619\ An agency may not conduct 
or sponsor, and a person is not required to respond to, a collection of 
information unless the agency displays a currently valid control 
number.
---------------------------------------------------------------------------

    \618\ 44 U.S.C. 3501 et seq.
    \619\ See 17 CFR 240.17a-4. The proposed amendment to Rule 17a-
4(b)(17) would amend the existing PRA for Rule 17a-4.
---------------------------------------------------------------------------

A. Summary of Collection of Information

    Proposed Rules 1101 and 1102, as well as proposed Rule 17a-
4(b)(17), would include a collection of information within the meaning 
of the PRA for broker-dealers, as described below in this section VI.A. 
Further, the proposed Rule 17a-4(b)(17) would impose new record 
retention obligations on broker-dealers subject to Regulation Best 
Execution.
1. Required Policies and Procedures and Related Obligations
    As detailed above,\620\ proposed Rule 1101 would require that a 
broker-dealer that engages in any transaction for or with a customer or 
a customer of another broker-dealer establish, maintain, and enforce 
written policies and procedures reasonably designed to comply with the 
proposed best execution standard. These policies and procedures would 
be required to address: (1) how a broker-dealer will comply with the 
best execution standard; (2) how the broker-dealer will determine the 
best market and make routing or execution decisions for customer 
orders; (3) additional considerations applicable to conflicted 
transactions with retail customers; and (4) to the extent applicable, 
the obligations of introducing brokers that meet the definition in 
proposed Rule 1101(d).
---------------------------------------------------------------------------

    \620\ See supra sections IV.B-IV.E.
---------------------------------------------------------------------------

    In particular, these policies and procedures must address how the 
broker-dealer will comply with the best execution standard, including 
by obtaining and assessing reasonably accessible information, including 
information about price, volume, and execution quality, concerning the 
markets trading the relevant securities; identifying markets that may 
be reasonably likely to provide the most favorable prices for customer 
orders; and incorporating these material potential liquidity sources 
into the broker-dealer's order handling practices and ensuring that the 
broker-dealer can efficiently access each such material potential 
liquidity source.\621\ The policies and procedures must also address 
how the broker-dealer will determine the best market and make routing 
or execution decisions for customer orders, including by: (1) assessing 
reasonably accessible and timely information with respect to the best 
displayed prices, opportunities for price improvement, including 
midpoint executions, and order exposure opportunities that may result 
in the most favorable price; (2) assessing the attributes of customer 
orders and considering the trading characteristics of the security, the 
size of the order, the likelihood of execution, the accessibility of 
the market, and any customer instructions in selecting the market most 
likely to provide the most favorable price; and (3) in determining the 
number and sequencing of markets to be assessed, reasonably balancing 
the likelihood of obtaining a better price with the risk that delay 
could result in a worse price.\622\
---------------------------------------------------------------------------

    \621\ See proposed Rule 1101(a)(1).
    \622\ See proposed Rule 1101(a)(2).
---------------------------------------------------------------------------

    For conflicted transactions, as described in more detail 
above,\623\ proposed Rule 1101(b) would require written policies and 
procedures to address additional considerations.\624\ The broker-
dealer's policies and procedures would need to additionally address: 
(1) how the broker-dealer will obtain and assess information beyond 
that required by proposed Rule 1101(a)(1)(i), including additional 
information about price, volume, and execution quality, in identifying 
a broader range of markets beyond those identified as material 
potential liquidity sources and (2) how the broker-dealer will evaluate 
a broader range of markets, beyond those identified as material 
potential liquidity sources, that might provide the most favorable 
price for customer orders, including a broader range of order exposure 
opportunities and markets that may be smaller or less accessible than 
those identified as material potential liquidity sources. The broker-
dealer must additionally document, in accordance with written 
procedures, its compliance with the best execution standard for 
conflicted transactions, including all efforts taken to enforce the 
policies and procedures required by proposed Rule 1102(b) for 
conflicted transactions, and the basis and information relied on for 
its determination that such conflicted transactions would comply with 
the best execution standard. The broker-dealer would also have to 
document any arrangement, whether written or oral, concerning payment 
for order flow, including the parties to the arrangement, all 
qualitative and quantitative terms concerning the arrangement, and the 
date and terms of any changes to the arrangement.
---------------------------------------------------------------------------

    \623\ See supra section IV.C.
    \624\ See proposed Rule 1101(b).
---------------------------------------------------------------------------

    A broker-dealer would also have to, no less frequently than 
quarterly, review the execution quality of its transactions for or with 
customers or customers of another broker-dealer and how such execution 
quality compares with the execution quality the broker-dealer might 
have obtained from other markets, revise its best execution policies 
and procedures, including its order handling practices, accordingly, 
and document the results of this review.\625\
---------------------------------------------------------------------------

    \625\ See proposed Rule 1101(c).
---------------------------------------------------------------------------

    To the extent that it has an arrangement with an executing broker 
for the handling of is customer orders, an introducing broker, as 
defined in proposed Rule 1101(d), would not have to comply with all of 
the requirements of proposed Rule 1101. Instead, as described 
above,\626\ proposed Rule 1101(d) would provide that an introducing 
broker that routes customer orders to an executing broker would not 
need to separately comply with proposed Rules 1101(a), (b), and (c), so 
long as the introducing broker establishes, maintains, and enforces 
policies and procedures that require the introducing broker to 
regularly review the execution quality obtained from its executing 
broker, compare that execution quality with the execution quality it 
might have obtained from other executing brokers, and revise its order 
handling practices, accordingly. An introducing broker would 
additionally be required to document the results of its review.
---------------------------------------------------------------------------

    \626\ See supra section IV.E.
---------------------------------------------------------------------------

    Finally, any broker-dealer subject to proposed Rule 1101 would be 
required under proposed Rule 17a-4(b)(17) to preserve the records made 
under proposed Rule 1101.\627\ Accordingly, a broker-dealer would be 
required to preserve those records for a period of not less than three 
years, the first two years in an easily accessible place.
---------------------------------------------------------------------------

    \627\ Any written policies and procedures developed pursuant to 
proposed Rule 1101 would be required to be preserved pursuant to 
existing Rule 17a-4(e)(7).

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

[[Page 5544]]

2. Annual Report
    As detailed above,\628\ proposed Rule 1102 would require that a 
broker-dealer that effects any transaction for or with a customer or a 
customer of another broker-dealer, no less frequently than annually, 
review and assess the design and overall effectiveness of its best 
execution policies and procedures, including its order handling 
practices. The broker-dealer must prepare a written report detailing 
the results of such review and assessment, including a description of 
all deficiencies found and any plan to address deficiencies, and the 
report must be presented to the broker-dealer's board of directors (or 
equivalent governing body). The broker-dealer would be required to 
preserve a copy of each such report, and the documentation for each 
such review and assessment, pursuant to proposed Rule 17a-
4(b)(17).\629\
---------------------------------------------------------------------------

    \628\ See supra section IV.F.
    \629\ Any written procedures developed pursuant to proposed Rule 
1102 would be required to be preserved pursuant to existing Rule 
17a-4(e)(7).
---------------------------------------------------------------------------

B. Proposed Use of Information

    Generally, the collections of information required under proposed 
Rules 1101 and 1102, as described below in this section VI.B, would 
enable a broker-dealer to comply with its obligations under proposed 
Regulation Best Execution, allow the broker-dealer to identify any 
inadequacies and make any revisions to its policies and procedures, 
including order handling practices, as appropriate to ensure the 
broker-dealer's continued effective compliance with the best execution 
standard, and create documentation that the Commission and SROs could 
use for purposes of examinations and investigations.
    Records retained in accordance with proposed Rule 17a-4(b)(17) 
would assist a broker-dealer in supervising and assessing internal 
compliance with Regulation Best Execution and assist the Commission and 
SROs in connection with examinations and investigations.
1. Required Policies and Procedures and Related Obligations
    The collection of information pursuant to proposed Rule 1101 would 
require written documentation of a broker-dealer's policies and 
procedures reasonably designed to comply with the best execution 
standard in proposed Rule 1100. Generally, these policies and 
procedures would provide a documented process for handling customer 
orders that a broker-dealer would use to ensure its ongoing compliance 
with the best execution standard. In addition, these written policies 
and procedures would assist the Commission and SROs in conducting 
examinations and investigations for compliance with the proposed rules, 
including the proposed best execution standard. Any ongoing collections 
of information pursuant to proposed Rule 1101, including a conflicted 
broker-dealer's documentation of its best execution determinations and 
its payment for order flow arrangements in accordance with written 
procedures, a broker-dealer's documentation of the results of its 
execution quality reviews, and an introducing broker's documentation of 
its executing broker execution quality reviews, would assist the 
broker-dealer in its ongoing efforts to transact for or with customers 
consistent with its best execution policies and procedures, and in turn 
ensure compliance with the best execution standard. Ongoing collections 
of information would also assist the Commission and SROs in 
examinations and investigations by ensuring that appropriate 
documentation is available to determine whether a broker-dealer is 
adhering to its best execution policies and procedures and otherwise in 
compliance with all applicable requirements of proposed Regulation Best 
Execution.
2. Annual Report
    The collection of information pursuant to proposed Rule 1102 would 
also provide appropriate documentation of a broker-dealer's continued 
efforts to comply with the best execution standard and would help to 
ensure that the broker-dealer's best execution policies and procedures 
remain effective. In particular, the requirement of proposed Rule 1102 
to document the results of a broker-dealer's annual review of its best 
execution policies and procedures would enable the broker-dealer, 
including its governing body, to identify any inadequacies and make any 
changes to the broker-dealer's best execution policies and procedures, 
including its order handling practices, as appropriate in order to 
further its compliance with the proposed rules. The collection of 
information pursuant to proposed Rule 1102 would also create 
documentation of such compliance that the Commission and SROs could use 
for purposes of investigations and examinations.

C. Respondents

    The respondents to proposed Rules 1101, 1102, and 17a-4(b)(17) 
would be broker-dealers that engage in securities transactions for or 
with a customer, or a customer of another broker-dealer. Based on FOCUS 
Report data,\630\ the Commission estimates that, as of June 30, 2022, 
there were 3,498 broker-dealers.\631\ The Commission preliminarily 
believes that nearly all of these broker-dealers would engage in 
customer transactions and be subject to these rules. Accordingly, for 
purposes of the PRA, the Commission estimates 3,498 respondents. The 
Commission requests comment on the accuracy of these estimated figures.
---------------------------------------------------------------------------

    \630\ FOCUS Reports, or ``Financial and Operational Combined 
Uniform Single'' Reports, are monthly, quarterly, and annual reports 
that broker-dealers are generally required to file with the 
Commission and/or SROs pursuant to Exchange Act Rule 17a-5. See 17 
CFR 240.17a-5.
    \631\ The data are obtained from FOCUS Reports, Part II filed 
for the second quarter of 2022.
---------------------------------------------------------------------------

D. Total Initial and Annual Reporting and Recordkeeping Burdens

1. Required Policies and Procedures and Related Obligations
(a) Initial Costs and Burdens
    The Commission preliminarily believes that broker-dealers generally 
already have policies and procedures in place to achieve compliance 
with the best execution rules of FINRA and the MSRB, as applicable, 
although these policies and procedures differ based on each broker-
dealer's business model. For purposes of the PRA, the Commission must 
consider the burden on respondents to bring their best execution 
policies and procedures into compliance with the proposed rule, which 
in certain cases would impose additional and more specific obligations. 
The extent to which a respondent would be burdened by the proposed 
collection of information under the proposed rule would depend on the 
best execution policies and procedures that have already been 
established by a respondent as well as the respondent's business model. 
To the extent broker-dealers' existing best execution policies and 
procedures already substantially address the requirements of proposed 
Rule 1101, these broker-dealers likely would only require limited 
updates to their policies and procedures to meet the additional 
obligations specified in the proposed rule. To initially comply with 
this obligation, the Commission preliminarily believes that broker-
dealers would employ a combination of in-house and outside legal and 
compliance counsel to update existing policies and procedures. The 
Commission assumes that, for purposes of this analysis, the associated 
costs and burdens would differ between small and large broker-dealers, 
as large broker-

[[Page 5545]]

dealers generally offer more products and services and are more likely 
to engage in conflicted transactions, and therefore would need to 
develop a more extensive set of policies and procedures. Based on FOCUS 
Report data, the Commission estimates that, as of June 30, 2022, 
approximately 761 broker-dealers are small entities under the 
Regulatory Flexibility Act.\632\ Therefore, the Commission estimates 
that 2,737 broker-dealers would qualify as large broker-dealers for 
purposes of this analysis.\633\
---------------------------------------------------------------------------

    \632\ See infra note 691 (describing the definition of the term 
``small entity'').
    \633\ This calculation was made as follows: (3,498 total broker-
dealers) - (761 small broker-dealers) = 2,737 large broker-dealers.
---------------------------------------------------------------------------

    Although the exact nature and extent of the policies and procedures 
that a broker-dealer would be required to establish likely would vary 
depending upon the business model of the broker-dealer,\634\ the 
Commission broadly estimates that a large broker-dealer, which the 
Commission assumes is more likely to need to satisfy the heightened 
requirements applicable to conflicted transactions, would incur a one-
time average internal burden of 85 hours for in-house legal and in-
house compliance counsel to update existing policies and procedures to 
comply with proposed Rule 1101.\635\ The Commission additionally 
estimates a one-time burden of 12 hours for a general counsel at a 
large broker-dealer and 12 hours for a Chief Compliance Officer to 
review and approve the updated policies and procedures, for a total of 
109 burden hours.\636\ In addition, the Commission estimates a cost of 
approximately $7,936 for outside counsel to review the updated policies 
and procedures on behalf of a large broker-dealer.\637\ The Commission 
therefore estimates the aggregate burden for large broker-dealers to be 
298,333 burden hours,\638\ and the aggregate cost for large broker-
dealers to be approximately $21.72 million.\639\
---------------------------------------------------------------------------

    \634\ For purposes of the PRA, the burden to establish policies 
and procedures means those a respondent is required to establish 
pursuant to proposed Rules 1101(a), (b), and (d).
    \635\ This estimate would be broken down as follows: 67 hours 
for in-house legal counsel + 18 hours for in-house compliance 
counsel to update existing policies and procedures = 85 burden 
hours.
    \636\ This estimate is based on the following calculation: (85 
hours of review for in-house legal and in-house compliance counsel) 
+ (12 hours of review for general counsel) + (12 hours of review for 
Chief Compliance Officer) = 109 burden hours.
    \637\ The Commission's estimates of the relevant wage rates for 
outside legal services of $496/hour take into account staff 
experience, a variety of sources including general information 
websites, and adjustments for inflation. This cost estimate is 
therefore based on the following calculation: (16 hours of review) x 
($496/hour for outside counsel services) = $7,936 in outside counsel 
costs.
    \638\ This estimate is based on the following calculation: (109 
burden hours of review per large broker-dealer) x (2,737 large 
broker-dealers) = 298,333 aggregate burden hours.
    \639\ This estimate is based on the following calculation: 
($7,936 for outside counsel costs per large broker-dealer) x (2,737 
large broker-dealers) = $21.72 million in outside counsel costs.
---------------------------------------------------------------------------

    In contrast, the Commission preliminarily believes small broker-
dealers would primarily rely on outside counsel to update existing 
policies and procedures, as small broker-dealers generally have fewer 
in-house legal and compliance personnel. Moreover, the Commission 
believes small broker-dealers would be less likely to engage in 
conflicted transactions subject to the additional procedural 
obligations of proposed Rule 1101(b), and would be more likely to 
qualify as introducing brokers and be exempt from complying with 
proposed Rule 1101(a), (b), and (c), and therefore would need to 
develop a less extensive set of policies and procedures. Accordingly, 
the Commission estimates that only 65 hours of outside legal counsel 
services would be required to update such small broker-dealers' 
policies and procedures, for a total one-time cost of approximately 
$32,240 per small broker-dealer,\640\ and an aggregate cost of 
approximately $24.53 million for all small broker-dealers.\641\ The 
Commission additionally estimates in-house compliance personnel would 
require 18 hours to review and approve the updated policies and 
procedures, for an aggregate burden of 13,698 hours.\642\
---------------------------------------------------------------------------

    \640\ This cost estimate is based on the following calculation: 
(65 hours of review) x ($496/hour for outside counsel services) = 
$32,240 in outside counsel costs.
    \641\ This cost estimate is based on the following calculation: 
($32,240 for outside attorney costs per small broker-dealer) x (761 
small broker-dealers) = $24.53 million in outside counsel costs.
    \642\ This estimate is based on the following calculation: (18 
burden hours) x (761 small broker-dealers) = 13,698 aggregate burden 
hours.
---------------------------------------------------------------------------

    The Commission preliminarily believes that broker-dealers would 
utilize their existing recordkeeping systems to preserve any documents 
necessary to comply with proposed Rule 17a-4(b)(17). Accordingly, the 
Commission estimates that broker-dealers will incur no new initial 
burdens or costs to retain the records made pursuant to proposed Rule 
17a-4(b)(17). Nevertheless, the Commission requests comment on this 
assumption and whether the requirements of proposed Rule 17a-4(b)(17) 
would pose additional initial burdens or costs on broker-dealers.
    The Commission therefore estimates the total initial aggregate 
burden to be 312,031 hours,\643\ and the total initial aggregate cost 
to be approximately $46.25 million.\644\
---------------------------------------------------------------------------

    \643\ This estimate is based on the following calculation: 
(298,333 aggregate burden hours for large broker-dealers) + (13,698 
aggregate burden hours for small broker-dealers) = 312,031 total 
aggregate burden hours.
    \644\ This estimate is based on the following calculation: 
($21.72 million in aggregate costs for large broker-dealers) + 
($24.53 million in aggregate costs for small broker-dealers) = 
$46.25 million total aggregate costs.
---------------------------------------------------------------------------

(b) Ongoing Costs and Burdens
    On an ongoing basis, a respondent would have to maintain and review 
its best execution policies and procedures to ensure their 
effectiveness as well as to address any deficiencies found and to 
accommodate the addition of, among other things, new products or 
services, new business lines, or new markets or trading characteristics 
for a particular security. Proposed Rule 1101(c) would also require a 
broker-dealer to, no less frequently than quarterly, review the 
execution quality of its transactions for or with customers or 
customers of another broker-dealer, and how such execution quality 
compares with the execution quality the broker-dealer might have 
obtained from other markets, and to revise is best execution policies 
and procedures accordingly. Broker-dealers would also have to document 
the results of this review. Additionally, proposed Rule 1101(b) would 
require broker-dealers that engage in conflicted transactions to 
document, in accordance with written procedures, their compliance with 
the best execution standard for conflicted transactions, including all 
efforts to enforce their best execution policies and procedures for 
conflicted transactions and the basis and information relied on for 
their determinations that such conflicted transactions would comply 
with the best execution standard, as well as to document their payment 
for order flow arrangements. Moreover, in lieu of the requirements of 
proposed Rules 1101(a), (b), and (c), proposed Rule 1101(d) would 
require an introducing broker relying on that rule to establish, 
maintain, and enforce policies and procedures that require the 
introducing broker to regularly review the execution quality obtained 
from its executing broker, compare it with the execution quality it 
might have obtained from other executing brokers, and revise its order 
handling practices, accordingly. The introducing broker would have to 
document the results of this review.
    Once a broker-dealer has established written policies and 
procedures reasonably designed to achieve best execution, the 
Commission estimates

[[Page 5546]]

that large broker-dealers would each annually incur an internal burden 
of 25 hours to review and update existing policies and procedures: 
\645\ 9 hours for legal personnel, 8 hours for compliance personnel, 
and 8 hours for business-line personnel. The Commission further 
estimates that large broker-dealers would each annually incur an 
internal burden of 100 hours to conduct and document their reviews of 
execution quality pursuant to proposed Rule 1101(c) and document their 
efforts to obtain best execution for any conflicted transactions and 
their payment for order flow arrangements pursuant to proposed Rule 
1101(b): 10 hours for legal personnel, 20 hours for compliance 
personnel, and 70 hours for business-line personnel. The Commission 
therefore estimates an ongoing, aggregate burden for large broker-
dealers of approximately 342,125 hours.\646\ Because the Commission 
assumes that large broker-dealers would rely on internal personnel, 
rather than outside counsel, to update their policies and procedures on 
an ongoing basis, to conduct and document their execution quality 
reviews, and to document their efforts to obtain best execution for 
conflicted transactions, the Commission estimates large broker-dealers 
would not incur additional ongoing costs.
---------------------------------------------------------------------------

    \645\ See supra note 634.
    \646\ This estimate is based on the following calculation: (125 
burden hours per large broker-dealer) x (2,737 large broker-dealers) 
= 342,125 aggregate ongoing burden hours.
---------------------------------------------------------------------------

    The Commission assumes for purposes of this analysis that small 
broker-dealers would mostly rely on outside legal counsel and outside 
compliance consultants for review and update of their policies and 
procedures.\647\ The Commission preliminarily estimates that outside 
legal counsel would require approximately 11 hours per year to update 
policies and procedures, for an annual cost of approximately $5,456 for 
each small broker-dealer.\648\ The estimated aggregate, annual ongoing 
cost for outside legal counsel to update policies and procedures for 
all small broker-dealers would be approximately $4.15 million.\649\ In 
addition, the Commission estimates that small broker-dealers would 
require 11 hours of outside compliance services per year to update 
their policies and procedures, for an ongoing cost of approximately 
$3,344 per year,\650\ and an aggregate ongoing cost of approximately 
$2.54 million.\651\ The Commission further estimates that small broker-
dealers would require 20 hours of outside compliance services per year 
to conduct and document their reviews of execution quality and document 
their efforts to obtain best execution for conflicted transactions and 
payment for order flow arrangements, for an ongoing cost of 
approximately $6,080 per year,\652\ and an aggregate ongoing cost of 
approximately $4.63 million.\653\ The total aggregate, ongoing cost for 
small broker-dealers is therefore estimated at approximately $11.32 
million per year.\654\ For purposes of this analysis, the Commission 
assumes that small broker-dealers would engage in fewer conflicted 
transactions than large broker-dealers and be more likely to comply 
with the regular review required by proposed Rule 1101(d) for 
introducing brokers in lieu of the regular review required by proposed 
Rule 1101(c).
---------------------------------------------------------------------------

    \647\ See supra note 640.
    \648\ This estimate is based on the following calculation: (11 
hours per small broker-dealer) x ($496/hour for outside counsel 
services) = $5,456 in outside counsel costs.
    \649\ This estimate is based on the following calculation: 
($5,456 in outside counsel costs per small broker-dealer) x (761 
small broker-dealers) = $4.15 million in aggregate, ongoing outside 
legal costs.
    \650\ The Commission believes that performance of this function 
will most likely be equally allocated between a senior compliance 
examiner and a compliance manager. Based on industry sources, 
Commission staff preliminarily estimates that the costs for these 
positions in the securities industry are $264 and $344 per hour, 
respectively, for an average of $304 per hour. This cost estimate is 
based on the following calculation: (11 hours of review) x ($304/
hour for outside compliance services) = $3,344 in outside compliance 
service costs.
    \651\ This estimate is based on the following calculation: 
($3,344 in outside compliance costs per small broker-dealer) x (761 
small broker-dealers) = $2.54 million in aggregate, ongoing outside 
compliance costs.
    \652\ This cost estimate is based on the following calculation: 
(20 hours of review) x ($304/hour for outside compliance services) = 
$6,080 in outside compliance service costs.
    \653\ This estimate is based on the following calculation: 
($6,080 in outside compliance costs per small broker-dealer) x (761 
small broker-dealers) = $4.63 million in aggregate, ongoing outside 
compliance costs.
    \654\ This estimate is based on the following calculation: 
($4.15 million for outside legal counsel costs) + ($2.54 million for 
outside compliance costs for policies and procedures) + ($4.63 
million for outside compliance costs for regular reviews and 
documentation) = $11.32 million total aggregate ongoing costs.
---------------------------------------------------------------------------

    In addition to the ongoing costs described above, the Commission 
additionally estimates small broker-dealers would incur an internal 
burden of approximately 6 hours for an in-house compliance manager to 
review and approve the updated policies and procedures per year. The 
Commission further estimates that small broker-dealers would incur an 
internal burden of approximately 30 hours per year for in-house 
business-line personnel to conduct and document their reviews of 
execution quality and document their efforts to obtain best execution 
for conflicted transactions and payment for order flow arrangements. In 
addition, the Commission estimates that small-broker dealers would 
incur an internal burden of approximately 8 hours per year for in-house 
compliance personnel to review the execution quality reviews and 
documentation of efforts to obtain best execution for conflicted 
transactions and payment for order flow arrangements. The Commission 
estimates that the ongoing burden for business-line personnel, in-house 
compliance personnel and in-house compliance manager review for each 
small broker dealer would be 44 hours and the ongoing, aggregate burden 
for all small broker-dealers would be 33,484 hours for business-line 
personnel, in-house compliance personnel, and in-house compliance 
manager review.\655\
---------------------------------------------------------------------------

    \655\ This estimate is based on the following calculation: (6 
hours in-house compliance manager review per small broker-dealer) + 
(30 hours business-line personnel review per small broker-dealer) + 
(8 hours in-house compliance personnel review per small broker-
dealer) = 44 hours per small broker dealer x (761 small broker-
dealers) = 33,484 aggregate ongoing burden hours.
---------------------------------------------------------------------------

    The Commission estimates that the approximate ongoing burden 
associated with the recordkeeping requirements of proposed Rule 17a-
4(b)(17) for any records made in compliance with proposed Rule 1101 
would be 15,968 burden hours per year.\656\ The Commission does not 
believe that the ongoing costs associated with ensuring compliance with 
the retention schedule would change from the current costs of ensuring 
compliance with existing Rule 17a-4. However, the Commission requests 
comment regarding whether there would be additional costs relating to 
ensuring compliance with record retention and retention schedules 
pursuant to Rule 17a-4.
---------------------------------------------------------------------------

    \656\ Because the Commission assumes broker-dealers would 
utilize their existing recordkeeping systems to preserve any records 
made in compliance with proposed Rule 1101, the Commission estimates 
that the burdens associated with such record retention would be 
minimal. Accordingly, the Commission estimates the aggregate ongoing 
burden based on the following calculation: (5 burden hours in-house 
compliance personnel per large broker-dealer x 2,737 large broker-
dealers) + (3 burden hours in-house compliance personnel per small 
broker-dealer x 761 small broker-dealers) = 15,968 aggregate ongoing 
burden hours.
---------------------------------------------------------------------------

    The Commission therefore estimates the total ongoing aggregate 
burden to be 391,577 hours,\657\ and the total ongoing

[[Page 5547]]

aggregate cost to be approximately $11.32 million per year.\658\
---------------------------------------------------------------------------

    \657\ This estimate is based on the following calculation: 
(342,125 aggregate ongoing burden hours for large broker-dealers for 
proposed Rule 1101) + (33,484 aggregate ongoing burden hours for 
small broker-dealers for proposed Rule 1101) + (15,968 aggregate 
ongoing burden hours for all broker-dealers for proposed Rule 17a-
4(b)(17)) = 391,577 total aggregate ongoing burden hours.
    \658\ This estimate is based on the following calculation: 
($11.32 million per year in total aggregate ongoing costs for small 
broker-dealers) + ($0 ongoing costs for large broker-dealers) = 
$11.32 million per year in total aggregate ongoing costs.
---------------------------------------------------------------------------

    The Commission acknowledges that policies and procedures required 
by proposed Rule 1101 may vary greatly by broker-dealer, given the 
differences in size and the complexity of broker-dealer business 
models. Accordingly, the need to update policies and procedures might 
also vary greatly. The Commission requests comment regarding the 
accuracy of the estimated burden hours and costs necessary to comply 
with the proposal.
2. Annual Report
(a) Initial Costs and Burdens
    Proposed Rule 1102 would require a broker-dealer to, no less 
frequently than annually, review and assess the design and overall 
effectiveness of its best execution policies and procedures, including 
its order handling practices. A broker-dealer would be required to 
conduct the review and assessment in accordance with written 
procedures, as well as document the review and assessment. The broker-
dealer would also have to prepare a written report detailing the 
results of such review and assessment, including a description of all 
deficiencies found any plan to address deficiencies, and the report 
would be required to be presented to the board of directors (or 
equivalent governing body) of the broker-dealer. The broker-dealer 
would be required to preserve a copy of each such report and 
documentation for each such review and assessment pursuant to proposed 
Rule 17a-4(b)(17).
    The Commission preliminarily believes that a respondent should 
currently have written compliance procedures reasonably designed to 
review its business activity. Proposed Rule 1102 would initially 
require a respondent to update such written compliance procedures to 
document the method in which the respondent plans to conduct its review 
and assessment pursuant to proposed Rule 1102.
    The Commission broadly estimates that a large broker-dealer would 
incur a one-time average internal burden of 15 hours for in-house legal 
and in-house compliance counsel to update its existing compliance 
procedures for reviewing and assessing the design and overall 
effectiveness of its best execution policies and procedures.\659\ The 
Commission additionally estimates a one-time burden of 2 hours for a 
general counsel at a large broker-dealer and 1 hour for a Chief 
Compliance Officer to review and approve the updated compliance 
procedures, for a total of 18 burden hours per large broker-
dealer.\660\ In addition, the Commission estimates a cost of 
approximately $1,488 for outside counsel to review the updated 
compliance procedures on behalf of a large broker-dealer.\661\ The 
Commission therefore estimates the aggregate burden for large broker-
dealers to be 49,266 burden hours,\662\ and the aggregate cost for 
large broker-dealers to be approximately $4.1 million.\663\
---------------------------------------------------------------------------

    \659\ This estimate would be broken down as follows: 10 hours 
for in-house legal counsel + 5 hours for in-house compliance counsel 
to update existing policies and procedures = 15 burden hours.
    \660\ This estimate is based on the following calculation: (15 
hours of review for in-house legal and in-house compliance counsel) 
+ (2 hours of review for general counsel) + (1 hour of review for 
Chief Compliance Officer) = 18 burden hours.
    \661\ The Commission's estimates of the relevant wage rates for 
outside legal services of $496/hour take into account staff 
experience, a variety of sources including general information 
websites, and adjustments for inflation.'' This cost estimate is 
therefore based on the following calculation: (3 hours of review) x 
($496/hour for outside counsel services) = $1,488 in outside counsel 
costs.
    \662\ This estimate is based on the following calculation: (18 
burden hours of review per large broker-dealer) x (2,737 large 
broker-dealers) = 49,266 aggregate burden hours.
    \663\ This estimate is based on the following calculation: 
($1,488 for outside counsel costs per large broker-dealer) x (2,737 
large broker-dealers) = $4.1 million in outside counsel costs.
---------------------------------------------------------------------------

    In contrast, the Commission believes small broker-dealers would 
primarily rely on outside counsel to update existing compliance 
procedures, as small broker-dealers generally have fewer in-house legal 
and compliance personnel. The Commission estimates that a small broker-
dealer would require an average of 10 hours of outside legal counsel 
services to update the compliance procedures, for a total one-time cost 
of approximately $4,960 per small broker-dealer,\664\ and an aggregate 
cost of approximately $3.77 million for all small broker-dealers.\665\ 
The Commission additionally believes in-house compliance personnel at 
each small broker-dealer would require 5 hours to review and approve 
the updated compliance procedures, for an aggregate burden of 3,805 
hours.\666\
---------------------------------------------------------------------------

    \664\ This cost estimate is based on the following calculation: 
(10 hours of review) x ($496/hour for outside counsel services) = 
$4,960 in outside counsel costs.
    \665\ This cost estimate is based on the following calculation: 
($4,960 for outside attorney costs per small broker-dealer) x (761 
small broker-dealers) = $3.77 million in outside counsel costs.
    \666\ This estimate is based on the following calculation: (5 
burden hours) x (761 small broker-dealers) = 3,805 aggregate burden 
hours.
---------------------------------------------------------------------------

    The Commission preliminarily believes that both large and small 
broker-dealers would utilize their existing recordkeeping systems to 
preserve any documents necessary to comply with proposed Rule 17a-
4(b)(17). Accordingly, the Commission estimates that broker-dealers 
will incur no new initial burdens or costs to retain the records made 
pursuant to proposed Rule 1102. Nevertheless, the Commission requests 
comment on this assumption and whether the requirements of proposed 
Rule 17a-4(b)(17) would pose additional initial burdens or costs on 
broker-dealers.
    The Commission therefore estimates the total initial aggregate 
burden to be 53,071 hours,\667\ and the total initial aggregate cost to 
be approximately $7.87 million.\668\
---------------------------------------------------------------------------

    \667\ This estimate is based on the following calculation: 
(49,266 aggregate burden hours for large broker-dealers) + (3,805 
aggregate burden hours for small broker-dealers) = 53,071 total 
aggregate burden hours.
    \668\ This estimate is based on the following calculation: ($4.1 
million in aggregate costs for large broker-dealers) + ($3.77 
million in aggregate costs for small broker-dealers) = $7.87 million 
total aggregate costs.
---------------------------------------------------------------------------

(b) Ongoing Costs and Burdens
    Proposed Rule 1102 would require a broker-dealer to review and 
assess, no less frequently than annually, the design and overall 
effectiveness of its best execution policies and procedures, including 
its order handling and routing practices. Such review and assessment 
would be required to be conducted in accordance with written procedures 
and would be required to be documented. A broker-dealer would be 
required to prepare a written report detailing the results of such 
review and assessment, including a description of all deficiencies 
found and any plan to address deficiencies, and the report would have 
to be presented to the board of directors (or equivalent governing 
body) of the broker-dealer. The broker-dealer would be required to 
preserve a copy of each such report and documentation for each such 
review and assessment pursuant to proposed Rule 17a-4(b)(17).
    The ongoing burden of complying with proposed Rule 1102 would 
include a respondent's documentation of its reviews and assessments of 
the design and overall effectiveness of its best execution policies and 
procedures and the preparation of its written reports.

[[Page 5548]]

    The Commission estimates that large broker-dealers would each 
annually incur an internal burden of 40 hours to conduct and document 
its annual reviews and assessments (5 hours for legal personnel, 15 
hours for compliance personnel, and 20 hours for business-line 
personnel). The Commission estimates that large broker-dealers would 
each annually incur an internal burden of 8 hours to prepare the annual 
report (4 hours for legal personnel and 4 hours for compliance 
personnel) for a total ongoing burden of 48 hours per large broker-
dealer. The Commission therefore estimates an ongoing, aggregate burden 
for large broker-dealers of approximately 131,376 hours.\669\ Because 
the Commission assumes that large broker-dealers would rely on internal 
personnel to prepare the annual report, the Commission estimates that 
large broker-dealers would incur no ongoing costs.
---------------------------------------------------------------------------

    \669\ This estimate is based on the following calculation: (48 
burden hours per large broker-dealer) x (2,737 large broker-dealers) 
= 131,376 aggregate ongoing burden hours.
---------------------------------------------------------------------------

    The Commission assumes for purposes of this analysis that small 
broker-dealers would mostly rely on outside legal counsel and outside 
compliance consultants to conduct the annual reviews and assessments 
and prepare the annual report, with final review and approval from an 
in-house compliance manager. The Commission preliminarily estimates 
that outside counsel would require approximately 5 hours per year to 
conduct and document its annual reviews and assessments, for an annual 
cost of approximately $2,480 for each small broker-dealer.\670\ The 
estimated aggregate, annual ongoing cost for outside legal counsel to 
conduct and document the annual reviews and assessments for small 
broker-dealers would be approximately $1.88 million.\671\ In addition, 
the Commission expects that small broker-dealers would require 10 hours 
of outside compliance services per year to conduct and document its 
annual reviews and assessments, for an ongoing cost of approximately 
$3,040 per small broker-dealer per year,\672\ and an aggregate ongoing 
cost of approximately $2.31 million.\673\ The Commission preliminarily 
estimates that outside counsel would require approximately 3 hours per 
year to prepare the annual report, for an annual cost of approximately 
$1,488 for each small broker-dealer.\674\ The estimated aggregate, 
annual ongoing cost for outside legal counsel to prepare the annual 
report for small broker-dealers would be approximately $1.13 
million.\675\ In addition, the Commission preliminarily estimates that 
each small broker-dealer would require 3 hours of outside compliance 
services per year to prepare the annual report, for an ongoing cost of 
approximately $912 per year,\676\ and an aggregate ongoing cost of 
approximately $694,032 for all small broker-dealers.\677\ The total 
aggregate, ongoing cost for small broker-dealers is therefore estimated 
at approximately $6.01 million per year.\678\
---------------------------------------------------------------------------

    \670\ This estimate is based on the following calculation: (5 
hours per small broker-dealer) x ($496/hour for outside counsel 
services) = $2,480 in outside counsel costs.
    \671\ This estimate is based on the following calculation: 
($2,480 in outside counsel costs per small broker-dealer) x (761 
small broker-dealers) = $1.88 million in aggregate, ongoing outside 
legal costs.
    \672\ This cost estimate is based on the following calculation: 
(10 hours per small broker-dealer) x ($304/hour for outside 
compliance services) = $3,040 in outside compliance service costs.
    \673\ This estimate is based on the following calculation: 
($3,040 in outside compliance costs per small broker-dealer) x (761 
small broker-dealers) = $2.31 million in aggregate, ongoing outside 
compliance costs.
    \674\ This estimate is based on the following calculation: (3 
hours per small broker-dealer) x ($496/hour for outside counsel 
services) = $1,488 in outside counsel costs.
    \675\ This estimate is based on the following calculation: 
($1,488 in outside counsel costs per small broker-dealer) x (761 
small broker-dealers) = $1.13 million in aggregate, ongoing outside 
legal costs.
    \676\ This cost estimate is based on the following calculation: 
(3 hours per small broker-dealer) x ($304/hour for outside 
compliance services) = $912 in outside compliance service costs.
    \677\ This estimate is based on the following calculation: ($912 
in outside compliance costs per small broker-dealer) x (761 small 
broker-dealers) = $694,032 in aggregate, ongoing outside compliance 
costs.
    \678\ This estimate is based on the following calculation: 
($1.88 million for outside legal counsel costs to conduct and 
document the annual review and assessment) + ($2.31 million for 
outside compliance costs to conduct and document the annual review 
and assessment) + ($1.13 million for outside legal counsel to 
prepare the annual report) + ($694,032 for outside compliance costs 
to prepare the annual report) = $6.01 million total aggregate 
ongoing costs.
---------------------------------------------------------------------------

    In addition to the costs described above, the Commission 
additionally estimates each small broker-dealer would incur an internal 
burden of approximately 12 hours for business-line personnel to conduct 
and document the annual reviews and assessments, and 4 hours per year 
for in-house compliance personnel to review the reviews and assessments 
and preparation of the annual report. The Commission further estimates 
small broker-dealers would incur an internal burden of approximately 2 
hours for an in-house compliance manager to review and approve the 
annual report. The ongoing, aggregate burden for small broker-dealers 
would be 13,698 hours for in-house business-line personnel, compliance 
personnel, and compliance manager review.\679\
---------------------------------------------------------------------------

    \679\ This estimate is based on the following calculation: (12 
hours business-line personnel review per small broker-dealer) + (4 
hours compliance personnel review per small broker-dealer) + (2 
hours compliance manager review per small broker-dealer) x (761 
small broker-dealers) = 13,698 aggregate ongoing burden hours.
---------------------------------------------------------------------------

    The Commission estimates that the approximate ongoing burden 
associated with the recordkeeping requirement of proposed Rule 17a-
4(b)(17) for any records made in compliance with proposed Rule 1102 
would be 6,235 burden hours per year.\680\ The Commission does not 
believe that the ongoing costs associated with ensuring compliance with 
the retention schedule would change from the current costs of ensuring 
compliance with existing Rule 17a-4. However, the Commission requests 
comment regarding whether there would be additional costs relating to 
ensuring compliance with record retention and retention schedules 
pursuant to Rule 17a-4.
---------------------------------------------------------------------------

    \680\ Because the Commission assumes broker-dealers would 
utilize their existing recordkeeping systems to preserve any records 
made in compliance with proposed Rule 1102, the Commission estimates 
that the burdens associated with such record retention would be 
minimal. Accordingly, the Commission estimates the aggregate ongoing 
burden based on the following calculation: (2 burden hours in-house 
compliance personnel per large broker-dealer x 2,737 large broker-
dealers) + (1 burden hour in-house compliance personnel per small 
broker-dealer x 761 small broker-dealers) = 6,235 aggregate ongoing 
burden hours.
---------------------------------------------------------------------------

    The Commission therefore estimates the total ongoing aggregate 
burden to be 151,309 hours,\681\ and the total ongoing aggregate cost 
to be approximately $6.01 million per year.\682\
---------------------------------------------------------------------------

    \681\ This estimate is based on the following calculation: 
(131,376 aggregate ongoing burden hours for large broker-dealers for 
proposed Rule 1102) + (13,698 aggregate ongoing burden hours for 
small broker-dealers for proposed Rule 1102) + (6,235 aggregate 
ongoing burden hours for all broker-dealers for proposed Rule 17a-
4(b)(17)) = 151,309 total aggregate ongoing burden hours.
    \682\ This estimate is based on the following calculation: 
($6.01 million per year in total aggregate ongoing costs for small 
broker-dealers) + ($0 ongoing costs for large broker-dealers) = 
$6.01 million per year in total aggregate ongoing costs.
---------------------------------------------------------------------------

    The Commission acknowledges that policies and procedures may vary 
greatly by broker-dealer, given the differences in size and the 
complexity of broker-dealer business models. Accordingly, the need to 
update policies and procedures and conduct an annual review and 
assessment might also vary greatly. The Commission requests comment 
regarding the accuracy of the estimated burden hours and costs 
necessary to comply with the proposal.

[[Page 5549]]

A. Total Paperwork Burden

    Based on the foregoing, the Commission preliminarily estimates that 
the total initial aggregate burden for all broker-dealers to comply 
with proposed Rules 1101 and 1102, as well as proposed Rule 17a-
4(b)(17), would be 365,102 hours,\683\ and the total initial aggregate 
cost would be approximately $54.12 million.\684\ The Commission 
preliminarily estimates that the total ongoing aggregate burden for all 
broker-dealers to comply with proposed Rules 1101 and 1102, as well as 
proposed Rule 17a-4(b)(17), would be 558,854 hours per year,\685\ and 
the total ongoing aggregate cost would be approximately $17.33 million 
per year.\686\
---------------------------------------------------------------------------

    \683\ 365,102 hours = 312,031 hours (Required policies and 
procedures) + 53,071 hours (Annual review).
    \684\ $54.12 million = $46.25 million (Required policies and 
procedures) + $7.87 million (Annual review).
    \685\ 558,854 hours = 391,577 (Required policies and procedures) 
+ 145,074 hours (Annual review) + 22,203 hours (Rule 17a-4(b)(17)).
    \686\ $17.33 million = $11.32 million (Required policies and 
procedures) + $6.01 million (Annual review).

                                                                    PRA Summary Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Ongoing annual PRA      Total PRA      Initial PRA    Ongoing annual PRA      Total PRA
                                                Initial PRA    burden hours (after   burden hours        costs       costs (after first   costs in first
                                               burden hours        first year)       in first year     (million)       year) (million)    year (million)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Industry-Wide Burden due to Policies and             312,031                72,991         385,022          $46.25                 $6.69          $52.94
 Procedures under Proposed Rule 1101........
Industry-Wide Burden due to Regular Review                 0               302,618         302,618               0                  4.63            4.63
 and Documentation under Proposed Rule 1101.
                                             -----------------------------------------------------------------------------------------------------------
Total Industry-Wide Burden due to Proposed           312,031               375,609         687,640           46.25                 11.32           57.57
 Rule 1101..................................
                                             -----------------------------------------------------------------------------------------------------------
Industry-Wide Burden due to Compliance                53,071                     0          53,071            7.87                     0            7.87
 Procedures under Proposed Rule 1102........
Industry-Wide Burden due to Annual Review                  0               118,612         118,612               0                  4.19            4.19
 and Documentation, under Proposed Rule 1102
Industry-Wide Burden due to Annual Report                  0                26,462          26,462               0                  1.82            1.82
 under Proposed Rule 1102...................
                                             -----------------------------------------------------------------------------------------------------------
Total Industry-Wide Burden due to Proposed            53,071               145,074         198,145            7.87                  6.01           13.88
 Rule 1102..................................
                                             -----------------------------------------------------------------------------------------------------------
Total Industry-Wide Burden due to Proposed                 0                22,203          22,203               0                     0               0
 Rule 17a-4(b)(17)..........................
--------------------------------------------------------------------------------------------------------------------------------------------------------

B. Collection of Information is Mandatory

    All of the collection of information would be mandatory.

C. Confidentiality of Responses to Collection of Information

    The collection of information would not be required to be made 
public but would not be confidential.

D. Retention Period for Recordkeeping Requirements

    A broker-dealer would be required to preserve a copy of its 
policies and procedures under proposed Regulation Best Execution in a 
manner consistent with, and for the periods specified in, Rule 17a-
4(e)(7). A broker-dealer would be required to preserve a copy of its 
other records under proposed Regulation Best Execution in a manner 
consistent with, and for the periods specified in, the proposed 
amendments to Rule 17a-4(b).

E. Request for Comment

    Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits 
comments to:
     Evaluate whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
agency, including whether the information shall have practical utility;
     Evaluate the accuracy of our estimates of the burden of 
the proposed collection of information;
     Determine whether there are ways to enhance the quality, 
utility, and clarity of the information to be collected; and
     Evaluate whether there are ways to minimize the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology.
    Persons submitting comments on the collection of information 
requirements should direct them to the Office of Management and Budget, 
Attention: Desk Officer for the Securities and Exchange Commission, 
Office of Information and Regulatory Affairs, Washington, DC 20503, and 
should also send a copy of their comments to Secretary, Securities and 
Exchange Commission, 100 F Street NE, Washington, DC 20549-1090, with 
reference to File Number S7-32-22. Requests for materials submitted to 
OMB by the Commission with regard to this collection of information 
should be in writing, with reference to File Number S7-32-22 and be 
submitted to the Securities and Exchange Commission, Office of FOIA/PA 
Services, 100 F Street NE, Washington, DC 20549-2736. As OMB is 
required to make a decision concerning the collection of information 
between 30 and 60 days after publication, a comment to OMB is best 
assured of having its full effect if OMB receives it within 30 days of 
publication.

VII. Consideration of Impact on the Economy

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (``SBREFA''),\687\ the Commission must advise the OMB as to 
whether the proposed regulation constitutes a ``major'' rule. Under 
SBREFA, a rule is considered ``major'' where, if adopted, it results or 
is likely to result in: (1) an annual effect on the economy of $100 
million or more (either in the form of an

[[Page 5550]]

increase or decrease); (2) a major increase in costs or prices for 
consumers or individual industries; or (3) significant adverse effect 
on competition, investment, or innovation. If a rule is ``major,'' its 
effectiveness will generally be delayed for 60 days pending 
Congressional review. The Commission requests comment on the potential 
impact of Regulation Best Execution on the United States economy on an 
annual basis, on any potential increases in costs or prices for 
consumers or individual industries, and any potential effect on 
competition, investment, or innovation. Commenters are requested to 
provide empirical data and other factual support for their views to the 
extent possible.
---------------------------------------------------------------------------

    \687\ Public Law 104-121, Title II, 110 Stat. 857 (1996) 
(codified in various sections of 5 U.S.C., 15 U.S.C., and as a note 
5 U.S.C. 601).
---------------------------------------------------------------------------

VIII. Initial Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (``RFA'') \688\ requires Federal 
agencies, in promulgating rules, to consider the impact of those rules 
on small entities. Section 603(a) \689\ of the Administrative Procedure 
Act,\690\ as amended by the RFA, generally requires the Commission to 
undertake a regulatory flexibility analysis of all proposed rules, or 
proposed rule amendments, to determine the impact of such rulemaking on 
``small entities.'' \691\ Under Section 605(b) of the RFA, a Federal 
agency need not undertake a regulatory flexibility analysis of proposed 
rules where, if adopted, they would not have a significant economic 
impact on a substantial number of small entities.\692\
---------------------------------------------------------------------------

    \688\ 5 U.S.C. 601 et seq.
    \689\ 5 U.S.C. 603(a).
    \690\ 5 U.S.C. 551 et. seq.
    \691\ Although section 601(b) of the RFA defines the term 
``small entity,'' the statute permits agencies to formulate their 
own definitions. The Commission has adopted definitions for the term 
small entity for the purposes of Commission rulemaking in accordance 
with the RFA. Those definitions, as relevant to this proposed 
rulemaking, are set forth in Rule 0-10 under the Exchange Act, 17 
CFR 240.0-10.
    \692\ See 5 U.S.C. 605(b).
---------------------------------------------------------------------------

A. Reasons for and Objectives of the Proposed Action

    As discussed above in section III.B, the Commission is proposing 
Regulation Best Execution to further the goals of the national market 
system and reinforce broker-dealer best execution obligations.
    The proposed rule would set forth the standard of best execution, 
and proposed Rule 1101 would require a broker-dealer to establish, 
maintain, and enforce written policies and procedures that address 
specific elements that are designed to promote the best execution of 
customer orders, and comply with certain execution quality review and 
documentation requirements.\693\ More specifically, proposed Rule 
1101(a)(1) would require that a broker-dealer's policies and procedures 
address how it will: (1) obtain and assess reasonably accessible 
information concerning the markets trading the relevant securities; (2) 
identify markets that may be material potential liquidity sources; and 
(3) incorporate the material potential liquidity sources into its order 
handling practices and ensure efficient access to each such material 
potential liquidity source. Proposed Rule 1101(a)(2) would require a 
broker-dealer's policies and procedures to address how it will: (1) 
assess reasonably accessible and timely information, including 
information with respect to the best displayed prices, opportunities 
for price improvement, and order exposure opportunities that may result 
in the most favorable price; (2) assess the attributes of customer 
orders and consider the trading characteristics of the security, the 
size of the order, the likelihood of execution, the accessibility of 
the market, and any customer instructions in selecting the market most 
likely to provide the most favorable price; and (3) reasonably balance 
the likelihood of obtaining a better price with the risk that delay 
could result in a worse price when determining the number and 
sequencing of markets to be assessed.
---------------------------------------------------------------------------

    \693\ See supra section III.B.
---------------------------------------------------------------------------

    Proposed Rule 1101(b) would require a broker-dealer's policies and 
procedures for conflicted transactions to address how it will: (1) 
obtain and assess information beyond that required by proposed Rule 
1101(a)(1)(i) in identifying a broader range of markets beyond the 
material potential liquidity sources; and (2) evaluate a broader range 
of markets beyond the material potential liquidity sources. Proposed 
Rule 1101(b) would also require broker-dealers that engage in 
conflicted transactions with retail customers to document in accordance 
with their written procedures their compliance with the best execution 
standard for conflicted transactions, including all efforts to enforce 
their best execution policies and procedures for conflicted 
transactions and the basis and information relied on for its 
determinations that such conflicted transactions would comply with the 
best execution standard. Additionally, proposed Rule 1101(b)(3) would 
require broker-dealers that engage in conflicted transactions to 
document their payment for order flow arrangements.
    Proposed Rule 1101(c) would require broker-dealers to no less 
frequently than quarterly review the execution quality of customer 
orders, and how such execution quality compares with the execution 
quality that might have been obtained from other markets, and revise 
their best execution policies and procedures, including order handling 
practices, accordingly.
    Proposed Rule 1101(d) would exempt an introducing broker that 
routes customer orders to an executing broker from separately complying 
with proposed Rules 1101(a), (b), and (c), so long as the introducing 
broker establishes, maintains, and enforces policies and procedures 
that require the introducing broker to regularly review the execution 
quality obtained from its executing broker, compare it with the 
execution quality it might have obtained from other executing brokers, 
and revise its order handling practices accordingly. An introducing 
broker would additionally be required to document the results of its 
review.
    Proposed Rule 1102 would require each broker-dealer no less 
frequently than annually to conduct a review and assessment of the 
design and overall effectiveness of its best execution policies and 
procedures, and document such review and assessment in a report that 
would be provided to the broker-dealer's governing body.
    Proposed amendments to Rule 17a-4 under the Exchange Act would 
specify the record preservation requirements for records made under 
proposed Regulation Best Execution.

B. Legal Basis

    Pursuant to the Exchange Act, 15 U.S.C. 78a et seq., and 
particularly sections 2, 3(b), 5, 10, 11A, 15, 15A, 17, 23(a), 24, and 
36 thereof, 15 U.S.C. 78b, 78c(b), 78e, 78j, 78k-1, 78o, 78o-1, 78q, 
78w(a), 78x, and 78mm, the Commission is proposing amendments to Sec.  
240.17a-4 and new Sec. Sec.  [thinsp]242.1100 through 242.1102.

C. Small Entities Subject to the Proposed Rule

    For purposes of a Commission rulemaking in connection with the RFA, 
a broker-dealer will be a small entity if it: (1) had total capital 
(net worth plus subordinated liabilities) of less than $500,000 on the 
date in the prior fiscal year as of which its audited financial 
statements were prepared pursuant to Rule 17a-5(d) under the Exchange 
Act,\694\ or, if not required to file such statements, had total 
capital (net worth plus subordinated liabilities) of less than $500,000 
on the last business day of the preceding fiscal year (or in the

[[Page 5551]]

time that it has been in business, if shorter); and (2) is not 
affiliated with any person (other than a natural person) that is not a 
small business or small organization.\695\
---------------------------------------------------------------------------

    \694\ See 17 CFR 240.17a-5(d).
    \695\ See 17 CFR 240.0-10(c).
---------------------------------------------------------------------------

    As discussed in section VI, the Commission estimates that 
approximately 3,498 broker-dealers would be subject to proposed 
Regulation Best Execution. Based on FOCUS Report data, the Commission 
estimates that as of June 30, 2022, approximately 761 of those broker-
dealers might be small entities for purposes of this analysis. For 
purposes of this RFA analysis, the Commission refers to broker-dealers 
that might be small entities under the RFA as ``small entities,'' and 
the Commission continues to use the term ``broker-dealers'' to refer to 
broker-dealers generally, as the term is used elsewhere in this 
release.

D. Projected Compliance Requirements of the Proposed Rule for Small 
Entities

    The RFA requires a description of the projected reporting, 
recordkeeping, and other compliance requirements of proposed Regulation 
Best Execution, including an estimate of the classes of small entities 
that would be subject to the requirements and the type of professional 
skill necessary to prepare the required reports and records. Following 
is a discussion of the associated costs and burdens of compliance with 
proposed Regulation Best Execution, as incurred by small entities. As 
described above in section IV, the proposed rules would require a 
broker-dealer to establish, maintain, and enforce written policies and 
procedures reasonably designed to comply with the proposed best 
execution standard, as well as additional policies and procedures for 
conflicted transactions and tailored policies and procedures applicable 
to introducing brokers. The proposed rules would also set forth 
documentation requirements related to conflicted transactions and 
execution quality reviews. Moreover, the proposed rules would require a 
broker-dealer to review and assess, no less frequently than annually, 
the design and overall effectiveness of its best execution policies and 
procedures, including its order handling practices, and prepare a 
written report that is provided to its board of directors or equivalent 
governing body detailing the results. Finally, proposed amendments to 
Rule 17a-4 would set forth record preservation requirements for records 
made under proposed Regulation Best Execution.

1. Required Policies and Procedures and Related Obligations

    To initially comply with these requirements, the Commission 
preliminarily believes that small entities would primarily rely on 
outside counsel to update existing policies and procedures, as small 
broker-dealers generally have fewer in-house legal and compliance 
personnel. As discussed in section VI above, the Commission 
preliminarily believes the initial costs associated with this 
requirement for small entities would be $32,240 per small entity 
(reflecting an estimated 65 hours of outside legal counsel services), 
and an aggregate cost of $24.53 million for all small entities.\696\ 
The Commission additionally estimates in-house compliance personnel 
would require 18 hours to review and approve the updated policies and 
procedures, for an aggregate burden of 13,698 hours.\697\
---------------------------------------------------------------------------

    \696\ See supra notes 640-641.
    \697\ See supra note 642.
---------------------------------------------------------------------------

    The Commission preliminarily believes that small broker-dealers 
would mostly rely on outside legal counsel and outside compliance 
consultants to review and update their policies and procedures on a 
periodic basis. The Commission preliminarily estimates that outside 
legal counsel would require approximately 11 hours per year, totaling 
approximately $5,456 annually for each small entity for an estimated 
aggregate ongoing cost of approximately $4.15 million. In addition, the 
Commission estimates that small entities would require 11 hours of 
outside compliance services per year to update their policies and 
procedures for an ongoing cost of approximately $3,344 per year, and 
the estimated aggregate ongoing cost to be $2.54 million. In addition, 
the Commission estimates that small entities would require 20 hours of 
outside compliance services per year to conduct and document their 
review of execution quality and document all their efforts to obtain 
best execution for conflicted transactions, including the basis and 
information relied on for its determinations, and payment for order 
flow arrangement for an ongoing cost of approximately $6,080 per year, 
and an aggregate ongoing cost of approximately $4.63 million. The total 
aggregate ongoing cost for small entities is therefore estimated at 
approximately $11.32 million per year. Separately, the Commission 
estimates that small entities would incur approximately six internal 
burden hours for an in-house compliance manager to review and approve 
the updated policies and procedures per year and incur an internal 
burden of approximately 30 hours per year for in-house business-line 
personnel to conduct and document their execution quality reviews and 
document all their efforts to obtain best execution for conflicted 
transactions and payment for order flow arrangements. The Commission 
further estimates that small entities would incur an internal burden of 
approximately 8 hours per year for in-house compliance personnel to 
review the regular reviews of execution quality and documentation of 
efforts to obtain best execution for conflicted transactions and 
payment for order flow arrangements. Thus, the Commission estimates 
that the ongoing burden for each small entity would be 44 hours and the 
ongoing, aggregate annual burden for all small entities to be 33,484 
hours.\698\
---------------------------------------------------------------------------

    \698\ See supra note 655.
---------------------------------------------------------------------------

    Finally, the Commission preliminarily believes that small entities 
would utilize their existing recordkeeping systems to preserve any 
documents necessary to comply with proposed Rule 1101. Thus, the 
Commission estimates that broker-dealers will incur no new initial 
burdens or costs to retain the records made pursuant to proposed 
Regulation Best Execution. Separately, the Commission estimates that 
the approximate ongoing burden associated with the recordkeeping 
requirements of proposed Rule 17a-4(b)(17) for any records made in 
compliance will proposed Rule 1101 pursuant to the proposed rule would 
be three burden hours per small entity for an ongoing aggregate annual 
burden for all small entities of approximately 2,283 hours. The 
Commission does not believe that the ongoing costs associated with 
ensuring compliance with retention schedule would change from the 
current costs of ensuring compliance with existing Rule 17a-4.
2. Annual Report
    As discussed above in sections VI, the Commission believes small 
entities would primarily rely on outside counsel to update their 
existing compliance procedures for the annual reviews and assessments 
under proposed Rule 1102. The Commission estimates that small entities 
would require approximately 10 hours of outside legal counsel services 
to update the compliance procedures, for total one-time costs of $4,960 
per small entity, and an aggregate cost of $3.77 million for all small 
entities.\699\
---------------------------------------------------------------------------

    \699\ See supra notes 664-665.
---------------------------------------------------------------------------

    Additionally, the Commission believes that the in-house compliance 
personnel would require approximately

[[Page 5552]]

five hours to review and approve the updated compliance procedure for 
an aggregate burden of 3,805 hours.\700\
---------------------------------------------------------------------------

    \700\ See supra note 666.
---------------------------------------------------------------------------

    The Commission preliminarily estimates that outside legal counsel 
would require approximately five hours to conduct and document annual 
reviews and assessments for an approximate cost of $2,480 per year for 
each small entity.\701\ The estimated aggregate, ongoing cost for 
outside legal counsel to conduct and document the annual reviews and 
assessments would be approximately $1.88 million.\702\ Additionally, 
the Commission expects that an additional 10 hours of outside 
compliance services would be required to conduct and document its 
annual reviews and assessments, for an ongoing cost of approximately 
$3,040 per small entity each year and an aggregate ongoing cost of 
approximately $2.31 million.\703\ Separately, the Commission 
preliminarily estimates that outside counsel would require 
approximately three hours to prepare the annual report, resulting in an 
annual cost of $1,488 per year, and an aggregate ongoing cost of 
approximately $1.13 million per year.\704\ In addition, the Commission 
preliminarily estimates that outside compliance services would require 
three hours per year to prepare the annual report, for an ongoing cost 
of approximately $912 per small entity each year and an aggregate 
ongoing cost of approximately $694,032 per year.\705\ Together the 
aggregate, ongoing cost for small entities subject to the proposed rule 
is estimated at approximately $6.01 million per year.\706\
---------------------------------------------------------------------------

    \701\ See supra note 670.
    \702\ See supra note 671.
    \703\ See supra note 672-673.
    \704\ See supra notes 674-675.
    \705\ See supra notes 676-677.
    \706\ See supra note 678.
---------------------------------------------------------------------------

    In addition to these costs, the Commission additionally estimates 
each small entity would incur an internal burden of approximately 12 
hours for business-line personnel to conduct and document the annual 
reviews and assessments, and four hours per year for in-house 
compliance personnel to review the reviews and assessments and 
preparation of the annual report. The Commission further estimates an 
internal burden of approximately two hours for an in-house compliance 
manager to review and approval the annual report for an ongoing, 
aggregate burden of 13,698 hours.
    Finally, the Commission estimates that small entities would incur 
no new initial burdens or costs to retain the records made pursuant to 
proposed Rule 1102. Additionally, the Commission estimates that the 
approximate ongoing burden associated with the recordkeeping 
requirement of proposed Rule 17a-4(b)(17) for any records made in 
compliance with proposed Rule 1102 would be one burden hour per small 
entity for an ongoing aggregate burden of 761 hours.

E. Duplicative, Overlapping, or Conflicting Federal Rules

    An analysis under the RFA requires a Federal agency to identify, to 
the extent practicable, all relevant Federal rules that may duplicate, 
overlap, or conflict with the proposed rules. The Commission believes 
that there are no Federal rules that duplicate, overlap, or conflict 
with proposed Regulation Best Execution and the proposed amendments to 
Rule 17a-4.

F. Significant Alternatives

    An RFA analysis requires a discussion of alternatives to the 
proposed rule that would minimize the impact of small entities while 
accomplishing the stated objectives of the applicable statutes. The 
analysis should include: (1) the establishment of differing compliance 
or reporting requirements or timetables that take into account the 
resources available to small entities; (2) the clarification, 
consolidation, or simplification of compliance and reporting under the 
rule for such small entities; (3) the use of performance rather than 
design standards; and (4) an exemption from coverage of the rule, or 
any part thereof, for such small entities.
    The Commission considered whether it would be necessary or 
appropriate to establish different compliance or reporting requirements 
or timetables; or to clarify, consolidate, or simplify compliance and 
reporting requirements under the proposed rule for small entities. 
Because proposed Regulation Best Execution is designed to further 
enhance broker-dealers' ability to maintain robust best execution 
practices and result in more vigorous efforts by broker-dealers to 
achieve best execution, including in situations where broker-dealers 
have order handling conflicts of interest with retail customers, the 
Commission preliminarily believes that small entities should be covered 
by the proposed rules. The proposed rule includes performance 
standards. The Commission also preliminarily believes that the proposed 
rules are flexible enough for small broker-dealers to comply without 
the need for the establishment of different compliance or reporting 
requirements or timetables\707\ for small entities, or exempting them 
from the proposed rule's requirements.
---------------------------------------------------------------------------

    \707\ Proposed Regulation Best Execution does not include 
different timetables for small broker-dealers because the Commission 
preliminarily believes that customers of small broker-dealers would 
benefit from the protections offered by proposed Regulation Best 
Execution, just as customers of broker-dealers that are not small 
entities.
---------------------------------------------------------------------------

    However, the Commission is proposing that broker-dealers that meet 
the definition of introducing broker would be subject to different and 
more tailored requirements under proposed Rule 1101. Specifically, 
under proposed Rule 1101(d), an entity that meets the definition of 
introducing broker and routes customer orders to an executing broker 
would not need to separately comply with proposed Rules 1101(a), (b), 
and (c), so long as the introducing broker establishes, maintains, and 
enforces policies and procedures that require the introducing broker to 
regularly review the execution quality obtained from such executing 
broker, compare it with the execution quality it might have obtained 
from other executing brokers, and revise its order handling practices 
accordingly. As discussed above,\708\ the Commission believes that 
small broker-dealers would be more likely to qualify as introducing 
brokers. As such, certain small entities would be exempt from complying 
with proposed Rules 1101(a), (b), and (c). To the extent a small 
broker-dealer does not qualify as an introducing broker, the Commission 
believes a small broker-dealer would be less likely to engage in 
conflicted transactions and be subject to the additional obligations of 
proposed Rule 1101(b) than a large broker-dealer.
---------------------------------------------------------------------------

    \708\ See supra section VI.
---------------------------------------------------------------------------

    The Commission also considered a number of potential regulatory 
alternatives to proposed Regulation Best Execution, including: (1) 
adoption of FINRA Rule 5310 and MSRB Rule G-18 best execution rules; 
(2) requiring order execution quality disclosure for other asset 
classes; (3) defining ``introducing broker'' to include those entities 
that quality for relief under FINRA and MSRB rules; (4) banning or 
restricting off-exchange payment for order flow; (5) requiring broker-
dealers to utilize best execution committees; (6) requiring order-by-
order documentation for conflicted or all transactions; and (7) 
providing staggered compliance dates for certain broker-dealers. For a 
more detailed discussion of these regulatory alternatives, see Section 
V, supra.

[[Page 5553]]

1. Adopt FINRA Rule 5310 and MSRB Rule G-18 Concerning Best Execution
    As discussed above, the Commission considered adopting FINRA Rule 
5310 and MSRB Rule G-18 regarding best execution and their associated 
guidance.\709\ Under this alternative, the overall costs and benefits 
to small entities would be lower than compared to the proposal. This 
alternative would not include the additional requirements related to 
transactions with broker-dealer conflicts of interest, which represent 
the majority of retail transactions in the equity, options, and fixed 
income markets.\710\ Under this alternative, conflicted broker-dealers 
that would qualify for relief under the current FINRA rule would 
experience lower compliance costs as they would not be required to 
develop or update their own policies and procedures or adjust their 
business model to de-conflict from their executing broker. The cost of 
the proposal could provide an advantage to larger broker-dealers as 
compared to smaller broker-dealers. The lower compliance cost under 
this alternative would increase competition among broker-dealers 
compared to the proposed rule by lowering barriers to entry for new 
broker-dealers and decrease the likelihood that smaller broker-dealers 
would exit the market.
---------------------------------------------------------------------------

    \709\ See supra section V.
    \710\ See section IV.C.2.a.
---------------------------------------------------------------------------

    The Commission preliminarily believes that adopting FINRA or the 
MSRB's best execution rules would be less effective than the proposed 
rule because broker-dealers (including small entities) would not be 
required to establish the comprehensive and detailed policies and 
procedures relating to all aspects of a broker-dealer's best execution 
practices, including additional requirements for broker-dealers with 
conflicts of interest, that would be required under the proposal. The 
Commission preliminarily believes that the proposed policies and 
procedures-based best execution framework, along with regular reviews 
and related documentation, would help broker-dealers maintain robust 
best execution practices and result in vigorous efforts by broker-
dealers to achieve best execution, including in situations where 
broker-dealers have order handling conflicts of interest with retail 
customers. The Commission also preliminarily believes that detailed 
policies and procedures, regular reviews, and related documentations 
would allow broker-dealers to effectively assess their best execution 
practices and assist the Commission and SROs to effectively examine and 
enforce broker-dealers' compliance with the proposed rules.
2. Require Order Execution Quality Disclosure for Other Asset Classes
    As discussed in section V, as an alternative, the Commission could 
require execution quality disclosures from market centers and broker-
dealers in the options and fixed income markets. In addition to 
execution quality data at the individual security-level, similar to 
Rule 605 data, the execution quality disclosures could include 
aggregated standardized summary reports of key execution quality 
statistics, which could permit smaller and less sophisticated investors 
to analyze and compare their broker-dealers against other broker-
dealers. This alternative may permit investors to better evaluate 
execution quality for their orders within their broker-dealer's overall 
executions in a given security and facilitate broker-to-broker 
comparisons of order execution beyond just the equities markets.
    Under the alternative, broker-dealers that engage in less efficient 
order handling practices may recognize the inadequacy when comparing 
their own execution quality statistics with those disclosed by more 
efficient broker-dealers, and improve the order handling practices 
accordingly to attract order flow.
    However, developing these execution quality disclosures may cause 
market centers and broker-dealers in the options and fixed income 
markets to incur higher startup costs relative to the proposal as 
market centers would need to develop systems to produce and post such 
reports. To the extent that certain market centers already have systems 
or infrastructures in place to produce execution quality metrics, they 
would incur costs to modify their current systems and/or the format of 
their current reports in order to comply with the potential execution 
quality disclosure requirements. Additionally, execution quality 
disclosures for the options and fixed income markets may be complex and 
difficult to produce for a number of reasons.\711\
---------------------------------------------------------------------------

    \711\ See supra section V.
---------------------------------------------------------------------------

3. Define ``Introducing Broker'' To Include Those Entities That Qualify 
for Relief Under FINRA and MSRB Rules
    The Commission could alternatively propose to remove the 
requirements for introducing and executing brokers related to 
remuneration, carrying firm status, and affiliation.\712\ This 
alternative would more closely align with the FINRA and MSRB rules 
concerning a broker-dealer that routes its order flow to another 
broker-dealer that has agreed to handle that order flow as agent or 
riskless principal for the customer. Under this alternative, it is 
likely that most broker-dealers that currently qualify for relief under 
the FINRA and MSRB rules would continue to do so. By categorizing to 
allow more broker-dealers to be classified as ``introducing brokers,'' 
the overall compliance cost carried by the market would be lower as 
compared to the proposal. This alternative would likely cause fewer 
small broker-dealers that currently qualify for relief under the FINRA 
or MSRB rule, and wish to continue to receive remuneration, carry 
customer accounts, or route to affiliates, to incur the expenses 
associated with the full obligations of proposed Regulation Best 
Execution.
---------------------------------------------------------------------------

    \712\ See supra section IV.E.
---------------------------------------------------------------------------

    The broker-dealers who could benefit under this alternative are 
those that currently qualify for relief under the FINRA and MSRB rules 
but fail at least one of the criteria in proposed Rule 1101(d). Thus, 
current ``introducing brokers,'' and to some extent their executing 
brokers, would have lower compliance costs since there would be no 
requirement to change their business models or set-up their own best 
execution policies and procedures to comply with the proposal. 
Additionally, this alternative may lower barriers to entry for some 
potential introducing brokers. However, under this alternative, as 
discussed in section V above, the benefits of the proposed rule would 
be diminished. The Commission preliminarily believes that instead of 
changing their business models, introducing brokers would be more 
likely to receive payment for order flow from their executing brokers 
or route customer orders to affiliated executing brokers. Therefore, 
the benefits of the alternative would be lower since the incentive 
created by the payment for order flow or routing to an affiliated 
executing broker would still exist, leading to order routing which may 
benefit the broker-dealers at the expense of retail customers.
4. Ban or Restrict Off-Exchange Payment for Order Flow
    Rather than requiring heightened best execution standards for 
transactions involving payment for order flow, alternatively the 
Commission could ban or restrict off-exchange payment for order flow in 
the equity and options markets. Under this alternative, registered 
securities exchanges would still be allowed to pay rebates. In

[[Page 5554]]

contrast to the proposed rule, this alternative may reduce conflicts of 
interest and improve order handling practices by retail broker-dealers. 
Separately, the Commission could impose specific restrictions on 
payment for order flow that could allow retail broker-dealers to pass 
through payments to end customers in cases where it would permit best 
execution. A ban or restriction on payment for order flow could 
increase the likelihood of higher commissions for retail investors or 
an increase in the cost of other services offered by retail broker-
dealers. It may also reduce competition between broker-dealers as 
larger broker-dealers with more diversified business models may be more 
likely to expand their market share and smaller broker-dealers who are 
more dependent on payment for order flow revenue streams may be more 
likely to exit the market.
5. Require Broker-Dealers To Utilize Best Execution Committees
    The Commission considered requiring each broker-dealer to maintain 
a best execution committee to regularly review the broker-dealers' best 
execution policies, procedures and the results of its efforts to secure 
best execution for its customers. Requiring such a committee and 
defining its membership might improve execution quality by ensuring 
sufficient expertise is recruited to establish and monitor the broker-
dealer's best execution efforts. Furthermore, requiring such a 
committee might increase executive attention on best execution, 
potentially improving execution quality for the broker-dealer's 
customers.
    Requiring such a committee and defining its membership would entail 
certain costs. First, if the Commission were to define the membership 
of the committee, it is likely that individual broker-dealers' 
organizational structures would vary in ways that would make a defined 
membership structure a poor fit because of, for instance, a single 
employee performing multiple roles, or individual roles handled by 
groups rather than a single individual. In addition, broker-dealers are 
diverse in their business plans and operations and a role that might be 
considered critical at one broker-dealer (such as managing fixed income 
executing brokers in thinly traded bonds) might be inapplicable at 
another broker-dealer that does not trade in these instruments. If the 
Commission were to require the committee and not define its membership, 
broker-dealers might assign to the committee less senior staff or staff 
whose roles are not germane to achieving best execution for customer 
orders, significantly limiting the benefits of establishing such a 
committee. Furthermore, based on its experience, the Commission 
believes that many broker-dealers, particularly large broker-dealers 
that are more likely to continue to engage in conflicted transactions 
if the proposed rules are adopted, often have such a committee already 
established, further limiting the potential benefits of such a 
provision.
6. Require Order-by-Order Documentation for Conflicted or All 
Transactions
    The Commission considered requiring each broker-dealer to document, 
for conflicted or all transactions, the data that it considered as it 
handled the order. Such a requirement might offer two benefits. First, 
it might improve the quality of the broker-dealer's regular review of 
its execution practices compared to the proposed rules. Because the 
broker-dealer could analyze orders on a case-by-case basis, it might 
identify routing practices that could be changed to improve customer 
order execution quality. Second, it might improve regulators' ability 
to supervise the broker-dealers efforts to provide best execution to 
its customers relative to the proposed rules as such records would be 
available to regulators during examinations of the broker-dealer or 
upon request for other regulatory purposes.
    The Commission preliminarily believes that such a requirement would 
offer greater potential benefits for conflicted transactions because 
broker-dealers engaging in such transactions have greater incentives to 
route orders in a manner that might not result in the best prices for 
customers. Based on its experience, the Commission believes that some 
broker-dealers, particularly the largest broker-dealers that are likely 
to continue to engage in conflicted transactions if the proposed rules 
are adopted, already maintain this type of documentation for both 
internal review and operational purposes. Nevertheless, the requirement 
would be costly. Broker-dealers that do not already retain this data 
likely have chosen not to do so because the data are not operationally 
valuable to them for business purposes, and they believe that they are 
satisfying their best-execution obligations based on other data that 
they have available for review. For these broker-dealers, the 
requirement could impose considerable costs. For example, they would 
need to alter their information technology systems to capture this 
data, including contemporaneous pricing data and routing records, some 
of which (such as prices offered in response to a RFQ and information 
related to fixed income and crypto asset securities) is not 
incorporated into other regulatory data sources such as CAT and thus 
might be stored on systems not integrated with other order routing 
systems, or systems that capture regulatory data. Processing this data 
might be computationally demanding, particularly for broker-dealers who 
trade options, as they have very high quotation traffic. Furthermore, 
creating and maintaining software to produce this documentation would 
require significant effort by highly skilled programmers which would 
further increase the costs associated with such a requirement. As 
discussed previously,\713\ the Commission preliminarily believes that 
broker-dealers that elect to refrain from conflicted transactions if 
the proposed rules are adopted are more likely to be smaller broker-
dealers and these costs, many of which are fixed, are more likely to 
result in the broker-dealer changing its business model or exiting the 
market, while the aggregate benefits to investors of such a requirement 
for smaller broker-dealers is likely to be smaller than for larger 
broker-dealers that handle more customer orders.
---------------------------------------------------------------------------

    \713\ See supra section V.C.2.ii.
---------------------------------------------------------------------------

7. Staggered Compliance Dates
    The Commission also considered whether there should be staggered 
compliance dates that take into consideration the concerns of smaller 
broker-dealers that may need additional time to comply with the 
proposed rule. Because the Commission preliminarily believes that 
smaller broker-dealers would primarily rely on outside legal counsel to 
update existing policies and procedures and outside compliance services 
to conduct and document their quarterly reviews of execution quality 
and document their efforts to obtain best execution for conflicted 
transactions and payment for order flow arrangements, the Commission 
does not believe that the proposal would unduly burden a smaller 
broker-dealer's internal resources. Furthermore, the Commission 
believes small broker-dealers would be less likely to engage in 
conflicted transactions subject to the additional procedural 
obligations of proposed Rule 1101(b), and would be more likely to 
qualify as introducing brokers and be exempt from complying with 
proposed Rules 1101(a), (b), and (c), and therefore would need to 
develop a less extensive set of policies and procedures.

[[Page 5555]]

G. General Request for Comment
    The Commission encourages written comments regarding this initial 
regulatory flexibility analysis. In particular, the Commission seeks 
comment on the number of small entities that would be affected by 
proposed Regulation Best Execution, and whether the effect on small 
entities would be economically significant. The Commission requests 
that commenters describe the nature of any impact on small entities and 
provide empirical data to support the extent of such impact. The 
Commission also requests comment on the proposed compliance burdens and 
the effects these burdens would have on small entities.

Statutory Authority and Text of the Proposed Rule

    Pursuant to the Exchange Act, 15 U.S.C. 78a et seq., and 
particularly sections 2, 3(b), 5, 10, 11A, 15, 15A, 17, 23(a), 24, and 
36 thereof, 15 U.S.C. 78b, 78c(b), 78e, 78j, 78k-1, 78o, 78o-1, 78q, 
78w(a), 78x, and 78mm, the Commission is proposing amendments to Sec.  
240.17a-4 and new Sec. Sec.  [thinsp]242.1100 through 242.1102.

List of Subjects in 17 CFR Parts 240 and 242

    Brokers, Reporting and recordkeeping requirements, Securities.

Text of the Proposed Rules

    In accordance with the foregoing, Title 17, Chapter II of the Code 
of Federal Regulations is proposed to be amended as follows:

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

0
1. The authority citation for part 240 continues to read as follows:

    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 
78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 
78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78dd, 78ll, 78mm, 
80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, and 7201 et 
seq., and 8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. 
1350; Pub. L. 111-203, 939A, 124 Stat. 1376 (2010); and Pub. L. 112-
106, sec. 503 and 602, 126 Stat. 326 (2012), unless otherwise noted.

0
2. Amend Sec.  240.17a-4 by adding a new paragraph (b)(17) to read as 
follows:


Sec.  240.17a-4  Records to be preserved by certain exchange members, 
brokers and dealers.

* * * * *
    (b) * * *
    (17) All records made pursuant to Sec. Sec.  242.1101 and 242.1102, 
other than required policies and procedures, as applicable.
* * * * *

PART 242--REGULATIONS M, SHO, ATS, AC, NMS, SBSR, AND BEST 
EXECUTION, AND CUSTOMER MARGIN REQUIREMENTS FOR SECURITY FUTURES

0
3. The authority citation for part 242 is amended to read as follows:

    Authority: 15 U.S.C. 77g, 77q(a), 77s(a), 78b, 78c(b), 78e, 
78g(c)(2), 78i(a), 78j, 78k-1, 78l, 78m, 78n, 78o(b), 78o(c), 
78o(g), 78o-1, 78q, 78w(a), 78x, 78dd-1, 78mm, 80a-23, 80a-29, and 
80a-37.

0
4. The heading of part 242 is revised to read as set forth above.
0
5. Part 242 is amended by adding Regulation Best Execution, Sec. Sec.  
[thinsp]242.1100 through 242.1102, to read as follows:

Regulation Best Execution

Sec.
242.1100 The best execution standard.
242.1101 Required policies and procedures; related obligations.
242.1102 Annual report.


Sec.  242.1100  The best execution standard.

    In any transaction for or with a customer, or a customer of another 
broker, dealer, government securities broker, government securities 
dealer, or municipal securities dealer (collectively, for purposes of 
Regulation Best Execution, ``broker or dealer''), a broker or dealer, 
or a natural person who is an associated person of a broker or dealer, 
shall use reasonable diligence to ascertain the best market for the 
security, and buy or sell in such market so that the resultant price to 
the customer is as favorable as possible under prevailing market 
conditions (for purposes of Regulation Best Execution, ``most favorable 
price''). A broker or dealer, or a natural person who is an associated 
person of a broker or dealer, is not subject to this standard when:
    (a) Another broker or dealer is executing a customer order against 
the broker or dealer's quotation;
    (b) An institutional customer, exercising independent judgment, 
executes its order against the broker or dealer's quotation; or
    (c) The broker or dealer receives an unsolicited instruction from a 
customer to route that customer's order to a particular market for 
execution and the broker or dealer processes that customer's order 
promptly and in accordance with the terms of the order.


Sec.  242.1101  Required policies and procedures; related obligations.

    A broker or dealer that engages in any transaction for or with a 
customer or a customer of another broker or dealer shall establish, 
maintain, and enforce written policies and procedures reasonably 
designed to comply with the best execution standard as set forth in 
Sec.  242.1100 (for purposes of Regulation Best Execution, ``best 
execution policies and procedures'').
    (a) Requirements. Such policies and procedures shall address:
    (1) How the broker or dealer will comply with the best execution 
standard by:
    (i) Obtaining and assessing reasonably accessible information, 
including information about price, volume, and execution quality, 
concerning the markets trading the relevant securities;
    (ii) Identifying markets that may be reasonably likely to provide 
the most favorable prices for customer orders (``material potential 
liquidity sources''); and
    (iii) Incorporating material potential liquidity sources into its 
order handling practices, and ensuring that the broker or dealer can 
efficiently access each such material potential liquidity source.
    (2) How the broker or dealer will determine the best market and 
make routing or execution decisions for customer orders that it 
receives by:
    (i) Assessing reasonably accessible and timely information with 
respect to the best displayed prices, opportunities for price 
improvement, including midpoint executions, and order exposure 
opportunities that may result in the most favorable price;
    (ii) Assessing the attributes of customer orders and considering 
the trading characteristics of the security, the size of the order, the 
likelihood of execution, the accessibility of the market, and any 
customer instructions in selecting the market most likely to provide 
the most favorable price; and
    (iii) In determining the number and sequencing of markets to be 
assessed, reasonably balancing the likelihood of obtaining better 
prices with the risk that delay could result in a worse price.
    (b) Conflicts of Interest. In any transaction for or with a retail 
customer, where the broker or dealer executes an order as principal, 
including riskless principal; routes an order to, or receives an order 
from, an affiliate for execution; or provides or receives payment for 
order flow as defined in Sec.  240.10b-10(d)(8) of this chapter (each, 
a ``conflicted transaction''):
    (1) The broker or dealer's best execution policies and procedures 
additionally shall address how the

[[Page 5556]]

broker or dealer will obtain and assess information beyond that 
required by paragraph (a)(1)(i) of this section, including additional 
information about price, volume, and execution quality, in identifying 
a broader range of markets beyond those identified as material 
potential liquidity sources;
    (2) The broker or dealer's best execution policies and procedures 
additionally shall address how the broker or dealer will evaluate a 
broader range of markets, beyond those identified as material potential 
liquidity sources, that might provide the most favorable price for 
customer orders, including a broader range of order exposure 
opportunities and markets that may be smaller or less accessible than 
those identified as material potential liquidity sources; and
    (3) The broker or dealer shall document its compliance with the 
best execution standard for conflicted transactions, including all 
efforts to enforce its best execution policies and procedures for 
conflicted transactions and the basis and information relied on for its 
determinations that such conflicted transactions would comply with the 
best execution standard. Such documentation shall be done in accordance 
with written procedures. The broker or dealer shall also document any 
arrangement, whether written or oral, concerning payment for order 
flow, including the parties to the arrangement, all qualitative and 
quantitative terms concerning the arrangement, and the date and terms 
of any changes to the arrangement.
    (4) For purposes of this paragraph (b):
    (i) ``Any transaction for or with a retail customer'' means any 
transaction for or with the account of a natural person or held in 
legal form on behalf of a natural person or group of related family 
members. For purposes of this definition, a ``group of related family 
members'' means a group of natural persons with any of the following 
relationships: child, stepchild, grandchild, great grandchild, parent, 
stepparent, grandparent, great grandparent, spouse, domestic partner, 
sibling, stepbrother, stepsister, niece, nephew, aunt, uncle, mother-
in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or 
sister-in-law, including adoptive and foster relationships; and any 
other natural person (other than a tenant or employee) sharing a 
household with any of the foregoing natural persons;
    (ii) A broker or dealer executes an order as ``riskless principal'' 
if, after having received an order to buy from a customer, the broker 
or dealer purchases the security from another person to offset a 
contemporaneous sale to the customer or, after having received an order 
to sell, the broker or dealer sells the security to another person to 
offset a contemporaneous purchase from the customer; and
    (iii) ``Affiliate'' means, with respect to a specified person, any 
person that, directly or indirectly, controls, is under common control 
with, or is controlled by, the specified person. For purposes of this 
definition, ``control'' means the power, directly or indirectly, to 
direct the management or policies of the broker or dealer whether 
through ownership of securities, by contract, or otherwise. A person is 
presumed to control a broker or dealer if that person is a director, 
general partner, or officer exercising executive responsibility (or 
having similar status or performing similar functions); directly or 
indirectly has the right to vote 25 percent or more of a class of 
voting securities or has the power to sell or direct the sale of 25 
percent or more of a class of voting securities of the broker or 
dealer; or in the case of a partnership, has contributed, or has the 
right to receive upon dissolution, 25 percent or more of the capital of 
the broker or dealer.
    (c) Regular Review of Execution Quality. A broker or dealer shall, 
no less frequently than quarterly, review the execution quality of its 
transactions for or with customers or customers of another broker or 
dealer, and how such execution quality compares with the execution 
quality the broker or dealer might have obtained from other markets, 
and revise its best execution policies and procedures, including its 
order handling practices, accordingly. The broker or dealer shall 
document the results of this review.
    (d) Introducing Brokers. An introducing broker that routes customer 
orders to an executing broker does not need to separately comply with 
paragraphs (a), (b), and (c) of this section so long as the introducing 
broker establishes, maintains, and enforces policies and procedures 
that require the introducing broker to regularly review the execution 
quality obtained from such executing broker, compare it with the 
execution quality it might have obtained from other executing brokers, 
and revise its order handling practices accordingly. The introducing 
broker shall document the results of this review. For purposes of this 
provision, introducing broker means a broker or dealer that:
    (1) Does not carry customer accounts and does not hold customer 
funds or securities;
    (2) Has entered into an arrangement with an unaffiliated broker or 
dealer that has agreed to handle and execute on an agency basis all of 
the introducing broker's customer orders (``executing broker'') (For 
purposes of this paragraph, principal trades by an executing broker 
with the introducing broker's customer to fill fractional share orders 
in NMS stocks and riskless principal trades (as defined in paragraph 
(b)) by an executing broker in fixed income securities will be 
considered to be handled on an agency basis); and
    (3) Has not accepted any monetary payment, service, property, or 
other benefit that results in remuneration, compensation, or 
consideration from the executing broker in return for the routing of 
the introducing broker's customer orders to the executing broker.


Sec.  242.1102  Annual report.

    A broker or dealer that effects any transaction for or with a 
customer or a customer of another broker or dealer shall, no less 
frequently than annually, review and assess the design and overall 
effectiveness of its best execution policies and procedures, including 
its order handling practices. Such review and assessment shall be 
conducted in accordance with written procedures and shall be 
documented. The broker or dealer shall prepare a written report 
detailing the results of such review and assessment, including a 
description of all deficiencies found and any plan to address 
deficiencies. The report shall be presented to the board of directors 
(or equivalent governing body) of the broker or dealer.

    By the Commission.

    December 14, 2022.
J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-27644 Filed 1-26-23; 8:45 am]
 BILLING CODE 8011-01-P