[Federal Register Volume 88, Number 148 (Thursday, August 3, 2023)]
[Notices]
[Pages 51379-51383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16504]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98019; File No. SR-CboeBYX-2023-012]


Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend 
Rule 11.9(f) To Allow Match Trade Prevention Between Users That Access 
the Exchange With Both a Direct Connection and Sponsored Access

July 28, 2023.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on July 26, 2023, Cboe BYX Exchange, Inc. (the ``Exchange'' or ``BYX'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I and II below, which Items 
have been prepared by the Exchange. The Exchange filed the proposal as 
a ``non-controversial'' proposed rule change pursuant to section 
19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-4(f)(6) thereunder.\4\ The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Cboe BYX Exchange, Inc. (the ``Exchange'' or ``BYX'') proposes to 
amend Exchange Rule 11.9(f) (``Match Trade Prevention (``MTP'') 
Modifiers'') to permit individual firms with Users that access the 
Exchange through a direct connection and also access the Exchange 
through Sponsored Access to enable Match Trade Prevention at the firm 
level. The text of the proposed rule change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the 
Exchange's website (http://markets.cboe.com/us/equities/regulation/rule_filings/byx/), at the Exchange's Office of the Secretary, and at 
the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend Rule 11.9(f) (``Match Trade 
Prevention (``MTP'') Modifiers'') to add the term ``Multiple Access 
identifier'' to the definition of ``Unique Identifier'' while also 
codifying how a User may utilize the Multiple Access identifier. Adding 
a Multiple Access identifier to MTP functionality on the Exchange would 
allow Users that electronically access the Exchange via their own 
Membership and Exchange connection(s), as well as Sponsored 
Participants \5\ that access the Exchange via a Sponsored Access \6\ 
arrangement, to enable MTP at the firm level, in addition to the 
current MTP functionality based on market participant identifier 
(``MPID''), Exchange Member identifier, trading group identifier, 
Exchange Sponsored Participant identifier, or affiliate identifier (any 
such existing identifier, a ``Unique Identifier'').\7\
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    \5\ See Exchange Rule 1.5(x). The term ``Sponsored Participant'' 
shall mean a person which has entered into a sponsorship arrangement 
with a Sponsoring Member pursuant to Rule 11.3.
    \6\ See Exchange Rule 11.3(a). ``Sponsored Access'' shall mean 
``an arrangement whereby a Member permits its customer to enter 
orders into the System that bypass the Member's trading system and 
are routed directly to the Exchange, including routing through a 
service bureau or other third-party technology provider.''
    \7\ See Exchange Rule 11.9(f).
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    Currently, the Exchange's MTP functionality prevents certain contra 
side orders entered by a User \8\ from executing, provided that each 
order has been marked with the same Unique Identifier.\9\ MTP 
functionality is currently available only to individual or affiliated 
Users on the Exchange and cannot be enabled by Users who choose

[[Page 51380]]

to access the Exchange through both a direct connection as well as 
through a Sponsored Access arrangement because such Users do not have 
the same Unique Identifier.
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    \8\ See Exchange Rule 1.5(cc). ``User'' is defined as ``any 
Member or Sponsored Participant who is authorized to obtain access 
to the System pursuant to Rule 11.3.'' The ``System'' is ``the 
electronic communications and trading facility designated by the 
Board through which securities orders of Users are consolidated for 
ranking, execution and, when applicable, routing away.'' See 
Exchange Rule 1.5(aa). The term ``Member'' means any registered 
broker or dealer that has been admitted to membership in the 
Exchange. See Exchange Rule 1.5(n).
    \9\ Supra note 7.
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    As noted above, there are currently five Unique Identifiers that a 
User may choose from when submitting an order subject to MTP: (i) MPID; 
\10\ (ii) Exchange Member identifier; (iii) trading group identifier; 
(iv) Exchange Sponsored Participant identifier, and (v) affiliate 
identifier.\11\ MTP functionality is optional for Users and is not 
automatically implemented by the Exchange. Both the buy and the sell 
order must include the same Unique Identifier in order to prevent an 
execution from occurring and to effect a cancel instruction.
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    \10\ An MPID is a four-character unique identifier that is 
approved by the Exchange and assigned to a Member for use on the 
Exchange to identify the Member firm on the orders sent to the 
Exchange and resulting executions.
    \11\ Supra note 7.
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    For example, a User who enables MTP functionality using the MPID 
Unique Identifier will prevent contra side executions between the same 
MPID from occurring. A User who enables MTP using the Exchange Member 
Unique Identifier would prevent contra side executions between any MPID 
associated with that User and not just a single MPID. The trading group 
Unique Identifier permits Users to prevent matched trades amongst 
traders or desks within a certain firm but allows orders from outside 
such group or desk to interact with other firm orders. Users who enable 
MTP functionality using the Exchange Sponsored Participant Unique 
Identifier will prevent matched trades between contra side orders with 
an identical Sponsored Participant identifier. The affiliate identifier 
is a Unique Identifier that permits MTP to be enabled by firms with a 
control relationship. The affiliate identifier is only available to 
Users where: (i) greater than 50% ownership is identified in a User's 
Form BD; and (ii) the Users execute an affidavit stating that a control 
relationship exists between the two Users. The Exchange is not 
proposing any change in functionality for the current Unique 
Identifiers described above.
    The Exchange now proposes to amend Rule 11.9(f) and enhance its 
existing MTP functionality by introducing a sixth Unique Identifier, 
Multiple Access identifier, which will allow a User to prevent orders 
entered via its direct connection from interacting with the User's 
orders entered via Sponsored Access. Currently, MTP is only available 
to individual and affiliated Users. However, there are certain 
situations (discussed infra) in which an individual firm may access the 
Exchange through different methods (i.e., through a direct connection 
and through Sponsored Access) and therefore desires to enable MTP in 
order to prevent orders submitted through its direct connection from 
interacting with those orders submitted through Sponsored Access.
    The Multiple Access identifier is similar to the affiliate 
identifier that is already in place, as it will enable firms that 
currently enter orders on the Exchange under two different Unique 
Identifiers to assign the same Unique Identifier to orders entered via 
its direct connection and to orders entered via Sponsored Access. This 
will permit the firm to enable MTP and prevent contra side orders from 
executing. While the affiliate identifier requires Users to prove that 
an affiliate relationship exists between the two Users,\12\ the 
proposed Multiple Access identifier will only require a User to 
demonstrate: (i) it maintains a Membership on the Exchange through 
which it directly submits orders to the System; and (ii) it also 
operates as a Sponsored Participant and submits orders to the System 
through Sponsored Access. The proposed addition of the Multiple Access 
identifier does not present any new or novel MTP functionality, but 
rather would extend existing MTP functionality to firms that already 
access the Exchange through multiple formats and therefore have 
different Unique Identifiers appended to their orders.
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    \12\ See Exchange Rule 11.9(f). See also 17 CFR 230.405. An 
affiliate of, or person affiliated with, a specified person, is a 
person that directly, or indirectly through one or more 
intermediaries, controls or is controlled by, or is under common 
control with, the person specified.
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    By way of example, there are situations where an individual firm 
would choose to submit orders to the Exchange through different 
mechanisms. For instance, a firm may employ different trading 
strategies across different trading desks and choose to send orders for 
one strategy to the Exchange through a direct connection while the 
other strategy is sent through Sponsored Access. The proposed 
functionality would serve as an additional tool that Users may enable 
in order to assist with compliance with the various securities laws 
relating to potentially manipulative trading activity such as wash 
sales \13\ and self-trades.\14\ Additionally, the proposed 
functionality would provide firms an additional solution to manage 
order flow by preventing undesirable executions where the firm submits 
orders in multiple formats (i.e., direct connection or Sponsored 
Access). As is the case with the existing risk tools, Users, and not 
the Exchange, have full responsibility for ensuring that their orders 
comply with applicable securities rules, laws, and regulations. 
Furthermore, as is the case with the existing risk settings, the 
Exchange does not believe that the use of the proposed MTP 
functionality can replace User-managed risk management solutions.
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    \13\ A ``wash sale'' is generally defined as a trade involving 
no change in beneficial ownership that is intended to produce the 
false appearance of trading and is strictly prohibited under both 
the federal securities laws and FINRA rules. See, e.g., 15 U.S.C. 
78i(a)(1); FINRA Rule 6140(b) (``Other Trading Practices'').
    \14\ Self-trades are ``transactions in a security resulting from 
the unintentional interaction of orders originating from the same 
firm that involve no change in beneficial ownership of the 
security.'' FINRA requires members to have policies and procedures 
in place that are reasonably designed to review trading activity 
for, and prevent, a pattern or practice of self-trades resulting 
from orders originating from a single algorithm or trading desk, or 
related algorithms or trading desks. See FINRA Rule 5210, 
Supplementary Material .02.
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    The Exchange is proposing to allow firms that submit orders to the 
Exchange through both a direct connection and through Sponsored Access 
to utilize MTP by utilizing the Multiple Access identifier.\15\ 
Specifically, the Exchange is proposing to allow individual firms who 
choose to access the System through both a direct connection and 
through Sponsored Access to use MTP functionality in order to prevent 
executions from occurring between those separate Users that are 
associated with the direct connection and Sponsored Access. When a firm 
requests MTP using the Multiple Access identifier and the Exchange 
confirms that the individual firm is both a Member that accesses the 
Exchange through a direct connection and maintains a Sponsored 
Participant relationship on the Exchange, the Exchange will assign an 
identical Multiple Access identifier to each User. This Multiple Access 
identifier will be used to prevent executions between contra side 
orders entered by the Users assigned the same Multiple Access 
identifier. The purpose of this proposed change is to extend MTP 
functionality

[[Page 51381]]

to separate Users originating from the same individual firm in order to 
prevent transactions between the firm's orders submitted directly to 
the System and through Sponsored Access.
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    \15\ The Exchange will require firms requesting to use the 
Multiple Access identifier to complete an affidavit stating: (i) it 
is currently a Member of the Exchange that submits orders directly 
to the System, and (ii) it also submits orders to the System through 
a Sponsored Access arrangement.
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    To demonstrate how MTP will operate with the proposed Multiple 
Access identifier, the Exchange has included examples of potential 
scenarios in which MTP may be used by individual Users utilizing the 
Multiple Access identifier. For all examples below, User A represents 
Firm 1 accessing the System through a direct connection. User B also 
represents Firm 1 but where Firm 1 is accessing the System as a 
Sponsored Participant through a Sponsoring Member.\16\ User A and User 
B will use a Multiple Access identifier of ``A'' when requesting MTP at 
the Multiple Access level, as both Users submit Firm 1's orders to the 
System. User C is not related to Users A and B and uses a Multiple 
Access identifier of ``C''.
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    \16\ See Exchange Rule 1.5(y). A ``Sponsoring Member'' shall 
mean a broker-dealer that has been issued a membership by the 
Exchange who has been designated by a Sponsored Participant to 
execute, clear and settle transactions resulting from the System. 
The Sponsoring Member shall be either (i) a clearing firm with 
membership in a clearing agency registered with the Commission that 
maintains facilities through which transactions may be cleared or 
(ii) a correspondent firm with a clearing arrangement with any such 
clearing firm.
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Multiple Access Level MTP
    Scenario 1: User A submits a buy order. User B submits a sell 
order. User C also submits a sell order. User A has enabled MTP at the 
Multiple Access level using a Multiple Access identifier of A. User B 
has enabled MTP at the Multiple Access level using a Multiple Access 
identifier of A. User C has not enabled MTP. User A's buy order is 
prevented from executing with User B's sell order as each User has 
enabled MTP at the Multiple Access level using an Multiple Access 
identifier of A. User A's buy order will be permitted to execute with 
User C's sell order because User C has not enabled MTP.
    Scenario 2: User A submits a buy order. User B submits a sell 
order. User C also submits a sell order. User A has enabled MTP at the 
Multiple Access level using an Multiple Access identifier of A. User B 
has not enabled MTP. User C has enabled MTP at the Multiple Access 
level using a Multiple Access identifier of C. User A's order will be 
eligible to trade with both User B and User C. User A's order is 
eligible to trade with User B because User B did not enable MTP. In 
order for MTP to prevent the matching of contra side orders, both the 
buy and sell order must contain an MTP modifier. User A's order is also 
eligible to trade with User C because even though User A and User C 
have both enabled MTP at the Multiple Access level, User A and User C 
have been assigned different Multiple Access identifiers.
    Scenario 3: User A submits a buy order and a sell order. User B 
submits a buy order. User A has enabled MTP at the Multiple Access 
level using a Multiple Access identifier of A. User B has enabled MTP 
at the Multiple Access level using a Multiple Access identifier of A. 
User A's buy order is not eligible to execute with User A's sell order 
because User A has enabled MTP at the Multiple Access level using a 
Multiple Access identifier of A. User A's sell order is not eligible to 
execute with User B's buy order because both User A and User B have 
enabled MTP at the Multiple Access level using a Multiple Access 
identifier of A.
    Scenario 4: User A submits a buy order and a sell order. User B 
submits a sell order. User C submits a sell order. User A has enabled 
MTP at the Multiple Access level using a Multiple Access identifier of 
A. User B has enabled MTP at the Multiple Access level using a Multiple 
Access identifier of A. User C has enabled MTP at the Multiple Access 
level using a Multiple Access identifier of C. User A's buy order is 
not eligible to execute with User A's sell order because User A has 
enabled MTP at the Multiple Access level using a Multiple Access 
identifier of A. User A's buy order is not eligible to execute with 
User B's sell order because both User A and User B have enabled MTP at 
the Multiple Access level using a Multiple Access identifier of A. User 
A's buy order is eligible to execute with User C's sell order because 
while User A and User C have enabled MTP at the Multiple Access level, 
User A and User C have been assigned different Multiple Access 
identifiers.
    The Exchange plans to implement the proposed rule change during the 
third quarter of 2023 and will announce the implementation date via 
Trade Desk Notice.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Act and the rules and regulations thereunder applicable to the 
Exchange and, in particular, the requirements of section 6(b) of the 
Act.\17\ Specifically, the Exchange believes the proposed rule change 
is consistent with the section 6(b)(5) \18\ requirements that the rules 
of an exchange be designed to prevent fraudulent and manipulative acts 
and practices, to promote just and equitable principles of trade, to 
foster cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system, and, in general, to protect investors and the public interest. 
Additionally, the Exchange believes the proposed rule change is 
consistent with the section 6(b)(5) \19\ requirement that the rules of 
an exchange not be designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
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    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(5).
    \19\ Id.
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    In particular, the Exchange believes that the proposed Multiple 
Access level MTP functionality promotes just and equitable principles 
of trade by allowing individual firms to better manage order flow and 
prevent undesirable trading activity such as wash sales'' \20\ or self-
trades \21\ that may occur as a result of the velocity of trading in 
today's high-speed marketplace. The proposed Multiple Access identifier 
and description of eligibility to utilize the proposed Multiple Access 
identifier does not introduce any new or novel functionality, as the 
proposed amendment does not seek to change the underlying MTP 
functionality, but merely extends the current MTP functionality to 
another trading relationship. For instance, a User may operate trading 
desk 1 that accesses the Exchange via the User's direction connection, 
as well as trading desk 2 that access the Exchange as a Sponsored 
Participant. While these desks may operate different trading 
strategies, a User may desire to prevent these desks from trading 
versus each other in the marketplace because the orders are originating 
from the same entity. Here, Users may desire MTP functionality on a 
Multiple Access level that will help them achieve compliance \22\ with 
regulatory rules regarding wash sales and self-trades in a very similar 
manner to the way that the current MTP functionality applies on the 
existing Unique Identifier level. In this regard, the proposed Multiple 
Access level MTP functionality will permit individual firms associated 
with different Users for purposes of

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submitting orders to the Exchange in a different manner to prevent the 
execution of transactions by and between the Users. The Exchange also 
believes that the proposed rule change is fair and equitable and is not 
designed to permit unfair discrimination as use of the proposed MTP 
functionality is optional, and its use is not a prerequisite for 
trading on the Exchange.
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    \20\ Supra note 13.
    \21\ Supra note 14.
    \22\ The Exchange reminds Users that while they may utilize MTP 
to help prevent potential transactions such as wash sales or self-
trades, Users, not the Exchange, are ultimately responsible for 
ensuring that their orders comply with applicable rules, laws, and 
regulations.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. MTP is an optional 
functionality offered by the Exchange and Users are free to decide 
whether to use MTP in their decision-making process when submitting 
orders to the Exchange.
    The Exchange believes that the proposed Multiple Access identifier 
does not impose any intramarket competition as it seeks to enhance an 
existing functionality available to all Users. The Exchange is not 
proposing to introduce any new or novel functionality, but rather is 
proposing to provide an extension of its existing MTP functionality to 
individual firms who choose to access the System through both a direct 
connection and through Sponsored Access. Additionally, the proposed 
rule specifies which Users are eligible to use the Multiple Access 
identifier and will be available to any User who satisfies such 
criteria. MTP will continue to be an optional functionality offered by 
the Exchange and the addition of Multiple Access level MTP will not 
change how the current Unique Identifiers and MTP functionality 
operate.
    The Exchange believes that the proposed Multiple Access identifier 
does not impose any undue burden on intermarket competition. MTP is an 
optional functionality offered by the Exchange and Users are not 
required to use MTP functionality when submitting orders to the 
Exchange. Further, the Exchange is not required to offer MTP and is 
choosing to do so as a benefit for Users who wish to enable MTP 
functionality. Moreover, the proposed change is not being submitted for 
competitive reasons, but rather to provide Users enhanced order 
processing functionality that may prevent undesirable executions by 
affiliated Users such as wash sales or self-trades.

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

    The Exchange neither solicited nor received comments on the 
proposed rule change.

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

    Because the foregoing proposed rule change does not: (A) 
significantly affect the protection of investors or the public 
interest; (B) impose any significant burden on competition; and (C) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to section 19(b)(3)(A) of the Act \23\ and Rule 19b-
4(f)(6) \24\ thereunder.
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    \23\ 15 U.S.C. 78s(b)(3)(A).
    \24\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \25\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\26\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investor and the public interest. The Exchange has asked 
the Commission to waive the 30-day operative delay so that the proposed 
rule change may become operative upon filing. The Exchange states that 
waiver of the 30-day operative delay will allow the Exchange to 
immediately offer its Users that access the Exchange's System through a 
direct connection and through Sponsored Access the ability to better 
manage order flow and prevent undesirable executions, such as wash 
sales and self-trades, in the same manner as Users who currently enable 
MTP at the MPID, Exchange Member identifier, trading group identifier, 
Exchange Sponsored Participant, or affiliate identifier levels. Because 
the proposed rule change does not raise any novel regulatory issues, 
the Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest. 
Therefore, the Commission hereby waives the operative delay and 
designates the proposal operative upon filing.\27\
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    \25\ 17 CFR 240.19b-4(f)(6).
    \26\ 17 CFR 240.19b-4(f)(6)(iii).
    \27\ For purposes only of waiving the 30-day operative delay, 
the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission will institute proceedings to 
determine whether the proposed rule change should be approved or 
disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number
    SR-CboeBYX-2023-012 on the subject line.

Paper Comments

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

All submissions should refer to file number SR-CboeBYX-2023-012. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for website viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE, 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or

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withhold entirely from publication submitted material that is obscene 
or subject to copyright protection. All submissions should refer to 
file number SR-CboeBYX-2023-012 and should be submitted on or before 
August 24, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(a)(12), (59).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-16504 Filed 8-2-23; 8:45 am]
BILLING CODE 8011-01-P