[Federal Register Volume 62, Number 34 (Thursday, February 20, 1997)]
[Rules and Regulations]
[Pages 7675-7678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4004]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1


Alternative Method of Compliance With the Written Record 
Requirements

AGENCY: Commodity Futures Trading Commission.

ACTION: Advisory; alternative method of compliance.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'') is 
issuing advice concerning compliance with the ``written'' record 
requirements of Commission Regulation 1.35 (17 CFR 1.35) for customer 
orders which are prepared and transmitted to and reported from exchange 
trading pits by electronic order-routing systems and for customer 
orders prepared by electronic off-floor order management systems 
(referred to collectively as ``electronic order-routing systems''). The 
``written'' record requirements of Commission Regulation 1.35(a-1)(1), 
(a-1)(2)(i), (a-1)(4), and/or (d) will be deemed satisfied, subject to 
the terms and conditions set forth in this Advisory, to the extent that 
such a system generates electronic rather than ``written'' records. The 
electronic record of a customer order generated through an electronic 
order-routing system must include any modification made to the order, 
including any change or correction, as well as the time the 
modification is recorded in the system. The system also must maintain 
an accurate record of when and by whom records are accessed or 
modified. In addition, such a system must capture all order-related 
times required under these Commission Regulation 1.35 subsections to 
the highest level of precision achievable by the operating system. In 
this regard, such a captured time must be accurate at least to the 
second. The time captured must not use a clock that can be modified by 
the person entering the order. All electronic records of customer 
orders created by an electronic order-routing system must be maintained 
in accordance with the record retention requirements of Commission 
Regulation 1.31.

FOR FURTHER INFORMATION CONTACT: Kimberly A. Browning, Attorney/
Advisor, Division of Trading and Markets, Commodity Futures Trading 
Commission, Three Lafayette Centre, 1155 21st Street, N.W., Washington, 
D.C. 20581. Telephone: (202) 418-5490.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Commission is hereby issuing guidance concerning alternative 
compliance with the ``written'' record requirements of certain 
Commission Regulation 1.35 subsections which call for the preparation 
of ``written'' records of customer orders. Specifically, Regulation 
1.35(a-1)(1) requires that a futures commission merchant (``FCM'') and 
introducing broker (``IB''), immediately upon receiving a customer's or 
option customer's order, prepare a written record of such order, 
including the account identification, order number, and a timestamp 
indicating the date and time, to the nearest minute, the order is 
received.1 Similarly, Regulation 1.35(a-1)(2)(i) provides that 
each member of a contract market who receives a customer order on an 
exchange floor that is not in the form of a written record immediately 
upon receipt of such order prepare and timestamp a written record of 
the order.2 For all such orders, Regulation 1.35(a-1)(4) requires 
an exit timestamp indicating the date and time of the report of 
execution.3 Regulation 1.35(d) provides that a contract market 
member who executes a trade must prepare a trading card or other record 
showing the fill information for the customer purchase or sale 
order.4
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    \1\ Commission Regulation 1.35(a-1)(1) states that:
    Each futures commission merchant and each introducing broker 
receiving a customer's or option customer's order shall immediately 
upon receipt thereof prepare a written record of such order, 
including the account identification and order number, and shall 
record thereon, by time-stamp or other timing device, the date and 
time to the nearest minute, the order is received, and in addition, 
for [an] option customer's order, the time, to the nearest minute, 
the order is transmitted for execution.
    \2\ Commission Regulation 1.35(a-1)(2)(i) states that:
    Each member of a contract market who on the floor of such 
contract market receives a customer's or option customer's order 
which in not in the form of a written record including the account 
identification, order number, and the date and time, to the nearest 
minute, such order was transmitted or received on the floor of such 
contract market, shall immediately upon receipt thereof prepare a 
written record of such order in non-erasable ink, including the 
account identification and order number and shall record thereon, by 
time-stamp or other timing device, the date and time, to the nearest 
minute, the order is received.
    \3\ Commission Regulation 1.35(a-1)(4) states that:
    Each member of a contract market reporting the execution from 
the floor of the contract market of a customer's or option 
customer's order or the order of another member of such contract 
market received in accordance with paragraphs (a-1)(2)(i) * * * of 
this section, shall record on a written record of such order, 
including the account identification and order number, by time-stamp 
or other timing device, the date and time to the nearest minute such 
report of execution is made. Each member of a contract market shall 
submit the written records of customer orders or orders from other 
contract market members to contract market personnel or to the 
clearing member responsible for the collection of orders prepared 
pursuant to this paragraph as required by contract market rules 
adopted in accordance with paragraph (j)(1) of this section. The 
execution price and other information reported on such order tickets 
must be written in non-erasable ink.
    \4\ Commission Regulation 1.35(d) states, among other things, 
that:
    Each member of a contract market who, in the place provided by 
the contract market for the meeting of persons similarly engaged, 
executes purchases or sales of any commodity for future delivery or 
commodity option on or subject to the rules of such contract market, 
shall prepare regularly and promptly a trading card or other record 
showing such purchases and sales. Such trading card or record shall 
show the member's name, name of the clearing member, transaction 
date, time, quantity, and, as applicable, underlying commodity, 
contract for future delivery or physical, price or premium, delivery 
month or expiration date, whether the transaction involved a put or 
a call and strike price. Such trading cards or other record shall 
also clearly identify the opposite floor broker or floor trader with 
whom the transaction was executed, and the opposite clearing member.
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    The Commission is issuing this Advisory to facilitate further the 
implementation and use of electronic order-routing systems, including 
both proprietary and exchange systems, in U.S. futures markets. This 
action constitutes the latest in a series of steps taken by the 
Commission to encourage the futures industry to realize the business 
and regulatory benefits of such systems. Recently, to advance the 
public dialogue on improving the efficiency of exchange and proprietary 
order-routing systems and to discuss potential practicability issues 
related to audit trail standards,5 the Commission convened a 
public Roundtable in Chicago, Illinois on October 16, 1996. At that 
forum, market users, financial market experts,

[[Page 7676]]

exchange officials and academics met to discuss the trade automation 
issues currently before the futures industry. Discussion at the 
Roundtable demonstrated the significance of the development and 
implementation of exchange and proprietary electronic order-routing 
systems to the continuing competitiveness of the U.S. exchanges and 
their member firms.6 Previously, in February and March 1996, the 
Commission received automation briefings by the Chicago Mercantile 
Exchange (``CME''), New York Mercantile Exchange, Coffee, Sugar & Cocoa 
Exchange, Inc., Chicago Board of Trade, and the Futures Industry 
Association. The Commission issued a public summary of these 
proceedings on May 10, 1996, entitled the ``Market Automation 
Briefings-Commission Summary.''
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    \5\ Section 5a(b)(3) of the Futures Trading Practices Act of 
1992 (``FTPA'') sets forth various heightened audit trail 
requirements which are subject to a ``practicability'' standard.
    \6\ The Commission shortly will be issuing a public summary of 
the Roundtable proceedings.
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    The Commission has recognized the important business benefits that 
can result from electronic order routing systems.7 The Commission 
also has emphasized that the FTPA ``does not mandate that its enhanced 
audit trail requirements be met through electronic means.'' 8 
Nevertheless, the Commission believes that ``the effective use of 
technology [will ultimately] * * * provide safer, more efficient, well-
supervised markets.'' 9
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    \7\ See the Commission's ``Report on Audit Trail Status and Re-
Test'' dated August 12, 1996 at p. 42.
    \8\ See the Commission's November 1994 ``Report to Congress on 
Futures Exchange Audit Trails'' at p. 62.
    \9\ See the Commission's May 10, 1996 ``Market Automation 
Briefings-Commission Summary'' at p. 3.
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II. Staff No-Action Positions Previously Taken Regarding Electronic 
Order-Routing Systems

    To date, the Commission's Division of Trading and Markets 
(``Division''), in consultation with the Commission's Office of 
Information Resources Management (``OIRM''), has issued four no-action 
letters relating to electronic order-routing systems. Each of the no-
action letters provided that the use of a specified electronic order-
routing system was not inconsistent with the ``written'' record 
preparation requirements of Commission Regulation 1.35. Two letters 
addressed systems which involved transmission of orders to and from a 
trading pit. One of those letters dealt with a firm proprietary system 
10 and the other an exchange system.11 The two other letters 
involved firm proprietary electronic off-floor order management 
systems.12 Essentially, those systems provide for the electronic 
generation, modification, and maintenance of a firm's ``office'' 
orders, that is, both discretionary and non-discretionary orders 
required to be prepared pursuant to Commission Regulation 1.35(a-1)(1).
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    \10\ On July 8, 1996, the Division issued a letter to CME that 
permitted the CME to allow one of its clearing member firms, Timber 
Hill, LLC (``Timber Hill'') to use, on a permanent basis, a handheld 
trading device and system (``Timber Hill System'') to receive 
customer orders in and report executions from the equity quadrant of 
the CME, described infra. By letter dated August 25, 1995, the 
Division originally permitted the CME to use the Timber Hill System 
for a 90-day pilot program. Extensions of that pilot program were 
subsequently granted by the Division.
    \11\ On June 14, 1996, the Division issued a letter that allowed 
a six-month pilot program to be implemented at CME under which 
certain CME member firms and floor broker groups are allowed to 
route customer orders for the front month of the CME's Eurodollar 
futures contract through the CME's electronic order-routing system, 
the ``Trade Order Processing System'' (``TOPS''), to the CME's order 
receipt system, the ``Universal Broker Station'' (``CUBS'') (``TOPS-
CUBS Program''), described infra. By letter dated December 13, 1996, 
Division staff permitted CME to extend the TOPS-CUBS Program to June 
13, 1997.
    \12\ On July 21, 1994, the Division issued a letter to Goldman, 
Sachs & Co. (``Goldman Sachs'') permitting it to implement its 
automated order preparation and record keeping system, Automated 
Order Routing and Trade Accounting (``AORTA''). The AORTA system is 
described infra.
    On September 12, 1996, the Division issued a similar letter to 
Morgan Stanley & Co. (``Morgan Stanley'') permitting it to implement 
its automated Order Management System (``OMS''), described infra.
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    In assessing both the Timber Hill System 13 and the TOPS-CUBS 
Program,14 Division and OIRM staff found both systems are used to 
generate, in electronic form, all of the customer order information 
required by Commission Regulation 1.35. In this regard, both the Timber 
Hill System and the TOPS-CUBS Program capture all modifications made to 
a customer order, including changes and/or cancellations, as well as 
the times of such modifications to the nearest second. Moreover, in 
those cases where an order is filled partially, both the Timber Hill 
System and the TOPS-CUBS Program reflect the actual quantity that has 
been executed and timestamp the report of the partial execution to the 
nearest second. Commission staff also found that both the Timber Hill 
System and the TOPS-CUBS Program record the necessary Regulation 1.35 
times for receipt of customer orders and report of execution times from 
the trading pit and do so more precisely than is required under the one 
minute standard in Regulation 1.35.
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    \13\ In summary, under the Timber Hill System, a customer enters 
his order(s) electronically through a customer workstation(s) 
located on his premises. That order then is transmitted via the 
Timber Hill Network to a basestation located on the CME trading 
floor in a booth in proximity to the CME's Standard & Poors 500 and 
NASDAQ 100 futures and options pits. Upon receipt of the order by 
the floor basestation, the basestation broadcasts it to a wireless 
handheld device held by a Timber Hill floor broker located in the 
trading pit for execution. Upon execution (partial or complete), the 
order's fill information, as input into the handheld device by the 
floor broker, is transmitted from the handheld unit back to the 
basestation. The basestation then transmits the fill confirmation 
information back to the customer at his workstation via the Timber 
Hill System.
    \14\ In summary, TOPS is an electronic order entry, routing and 
fill reporting system. Under the TOPS-CUBS Program, orders for the 
Eurodollar futures contract are transmitted through TOPS, which 
includes terminals located off the trading floor, to CUBS computer 
terminals and associated software designed for use by a broker and/
or a broker's clerk while at or in the trading pit. The CUBS system 
is a wired broker workstation that sits on a pedestal in the pit. It 
receives orders routed by TOPS and performs electronic order deck 
management.
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    With respect to the storage of customer order data, both the Timber 
Hill System 15 and the TOPS-CUBS Program 16 maintain 
Commission Regulation 1.35 order information 17 for the 
statutorily required five-year time period, as provided under 
Regulation 1.31.18 The staff found that both systems

[[Page 7677]]

were not inconsistent with that regulation, which permits data 
generated in electronic form to be maintained in optical media and in 
other forms. In addition, all Regulation 1.35 order information stored 
in connection with the Timber Hill System and the TOPS-CUBS Program, as 
described above, is made available, in a timely manner, for access by 
the Commission upon request in hard copy or machine readable form.
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    \15\ The Timber Hill System basestation maintains an on-line 
file of all customer orders transmitted through it, including order-
related timestamps. CME receives this file from the basestation via 
a serial port feed (cable) on a real-time basis. Upon receipt of the 
basestation data, CME maintains it in machine-readable form and will 
keep it for the required five-year time period as provided under 
Commission Regulation 1.31, described infra.
    Timber Hill also provides data for all customer orders executed 
through the Timber Hill system to the CME's clearing system via the 
on-line system which all CME member firms use to submit trade data 
to the CME's clearing system, the TREX Record. In addition, customer 
trade data are stored on the hard drives of customer workstations. 
On a daily basis, Timber Hill backs up to magnetic tape all customer 
trade data generated through the basestation, the main/''host'' 
computer and the customer workstations. Within one week of being 
generated, such data are placed on an optical disc(s). Twice a 
month, duplicate optical disks are deposited in a vault located off-
site.
    \16\ Customer order data generated by trading activity occurring 
under the TOPS-CUBS Program are stored in two separate databases, a 
TOPS database and a CUBS database. This storage is conducted in 
accordance with the CME's routine security and disaster prevention 
procedures. As a preliminary matter, data in both databases is 
``backed-up'' every evening onto a series of disk drives on the 
CME's mainframe computer, where it is stored for 30 days. 
Subsequently, CME stores the data from both databases in its 
archives on cartridge tape in a secure location.
    \17\ Commission Regulation 1.35(a) requires, among other things 
that each FCM, IB and member of a contract market must ``keep full, 
complete, and systematic records, together with all pertinent data 
and memoranda, of all transactions relating to its business dealing 
in commodity futures, commodity options, and cash commodities.'' 
Regulation 1.35(a) further provides that such records, which include 
all orders (filled, unfilled, or cancelled) and trading cards are to 
be maintained in accordance with the requirements of Regulation 
1.31.
    \18\ Commission Regulation 1.31 requires, among other things, 
that:
    All books and records required to be kept by the [Commodity 
Exchange] Act or [Commission] regulations shall be kept for a period 
of five years from the date thereof and shall be readily accessible 
during the first [two] years of the [five] year period. All such 
books and records shall be open to inspection by any representative 
of the Commission or the U.S. Department of Justice [(''DOJ'')].
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    With respect to the TOPS-CUBS Program, Commission staff noted that 
the Program's ability to record electronically and automatically 
required Regulation 1.35 customer order information, including order-
related times, enhances the preparation of customer data in terms of 
accuracy and detection of changes and should provide regulatory 
benefits.19 The Timber Hill System provides similar benefits.
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    \19\ See the Division's June 14, 1996 letter to Stephen Szarmack 
of the CME regarding the CME's request for no-action relief for the 
six-month pilot TOPS-CUBS Program at p. 13.
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    As previously noted, the two other staff no-action letters relate 
to electronic office order management systems. Those systems involve 
the electronic generation, maintenance and retention of office orders 
related to exchange trading. In general, the systems are intended to 
increase the efficiency with which these firms manage their order 
books, including through increased integration with other firm and 
customer activities. To date, both the Goldman Sachs AORTA system and 
the Morgan Stanley OMS system do not involve electronic transmission of 
orders to and from the exchange floor.20 Nonetheless, these 
systems involve issues similar to those relating to the Timber Hill 
System and the TOPS-CUBS Program, but within the confines of their more 
limited operational scope.
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    \20\ For reasons unrelated to applicable regulatory 
requirements, the implementation of both of these systems has been 
delayed.
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    In assessing the AORTA and OMS systems, Division and OIRM staff 
found that both systems record, in electronic form, all of the customer 
order information required by Commission Regulation 1.35 for office 
orders.21 In addition, both systems were found to capture the time 
of order entry, the time of the transmission of a customer order to the 
floor, and the time that a sales person enters order fill (partial or 
complete) information into his system.22 Both AORTA and OMS record 
any change to the customer order information, including the identity of 
the sales person making any change and the time of such change.
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    \21\ In summary, the AORTA and OMS systems operate as follows: 
sales personnel prepare a computerized office order ``ticket,'' 
instead of a paper ticket, immediately upon receipt of a customer 
order and enter all of the customer order information currently 
required under Regulation 1.35. Both systems record, automatically, 
the precise time to the nearest second at which an order was 
entered. Upon order entry, sales personnel then send orders to the 
floors by telephone and indicate by keystroke that the order has 
been transmitted. Both systems automatically record a second time 
indicating when the order was transmitted to the floor. Fill 
information, including the report of execution time, is transmitted 
back from the floor to sales personnel, who enter that information 
into their system.
    \22\ This exceeds the requirements of Commission Regulation 
1.35(a)(a-1)(i), which calls for the time a customer order was 
received and, for options, also the time the order is transmitted 
for execution.
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    With respect to data storage, both AORTA and OMS were found to 
satisfy the record retention requirements of Commission Regulation 
1.31.23 Moreover, both of those systems were found to provide 
regulatory benefits in that they enhance the standards for office order 
preparation as provided under Commission regulation 1.35.
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    \23\ AORTA stores all records of customer orders on optical 
disk. Records produced and retained by AORTA are available for 
production to the Commission or the DOJ in hard copy, on diskette, 
or on CD-ROM.
    All records of customer orders generated on OMS are stored on 
Morgan Stanley's Sybase Relational Database Management System 
(``Sybase''). Morgan Stanley supplements storage of data on Sybase 
with a hard copy/microfiche regime under which all transaction-
related information is reproduced from Sybase on a daily basis and 
kept either in hard copy or microfiche for five years.
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III. Discussion

    The Commission believes that it is appropriate to take into account 
and to facilitate automation developments that are occurring with 
respect to exchange-related trading. The Commission also believes that 
it is preferable to do so through the issuance of this Advisory rather 
than through the case-by case approach taken by staff in response to 
the aforementioned proposals for electronic order-routing systems. This 
Advisory will enable new order routing systems to come on line without 
the necessity of first seeking a no-action position regarding the 
``written'' record requirements of Commission Regulation 1.35. As a 
result, the important business and regulatory benefits these systems 
can provide will be fostered.
    For an electronic order-routing system to be covered by this 
Advisory, it must satisfy the standards discussed below.24 Those 
standards are consistent with the terms of the staff no-action 
positions previously taken regarding such systems and take cognizance 
of such systems' enhanced operational capabilities.
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    \24\ If an order-routing system did not satisfy any of the 
standards set forth herein, then the operator of the system would 
still be able to request an individual no-action position as 
appropriate.
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    To the extent that an electronic order-routing system captures 
information required under Commission Regulation 1.35(a-1)(1), (2)(i), 
(4), and/or (d), and provided such system satisfies the standards set 
forth below, a ``written'' record need not be prepared. To the extent 
that a system is intended to satisfy one or more of those provisions, 
then the system must include all information that otherwise would be 
required to be in written form. Moreover, insofar as a system is used 
to comply with any one or more of the foregoing sections, it must 
include all information required by that section(s).25
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    \25\ In particular, the Commission notes that it is critical for 
such systems to satisfy the account identification requirements of 
Regulation 1.35.
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    The electronic record of a customer order generated by an 
electronic order-routing system must include any and all modifications 
made thereto. The record must include any changes and/or cancellations. 
All order-related times required under Commission Regulation 1.35, as 
well as the times for all modifications, are to be captured to the 
highest level of precision achievable by the operating system. In this 
regard, the Commission's experience is that these systems have the 
capability, at a minimum, to capture times to the second. Therefore, 
the Commission is requiring that such times must be accurate at least 
to the second. In addition, the times captured must not use a clock 
that can be modified by the person entering the order.
    These systems also need to conform to the Commission's record 
keeping requirements as provided in Commission Regulation 1.31 for 
computer-generated records. Pursuant to that rule, computer-generated 
records can be substituted for a hard copy report when produced and 
maintained on optical disk in conformity with 1.31(d), microfilm, or 
microfiche. A computer-generated record used in lieu of a hard copy 
must be transferred to one of these three permitted non-erasable media 
``as soon as is feasible.'' 26 In addition, ``appropriate 
safeguards'' must be in place to protect any such records temporarily 
stored in erasable form so as

[[Page 7678]]

to prohibit unauthorized access to the records and to provide for a 
record of the identity of the persons who access such records and of 
any modifications made.27 In addition, assurance must be provided 
that a computer-generated record will be made readily available in 
machine-readable media or hard copy to the Commission or DOJ upon 
request. Moreover, records stored on ``machine readable media must use 
a format and coding structure'' specified in such a request by the 
Commission or DOJ.28
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    \26\ See the Commission's Regulation 1.31 final rulemaking, 
which allows production of computer-generated records on optical 
disk to be immediately substituted for hard copy reports for 
purposes of record storage. 58 FR 27458 (May 10, 1993) at 27460. The 
Commission also notes that it may be necessary to amend Regulation 
1.31 to account for further technological developments.
    \27\ Id.
    \28\ Id. at 27465.
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    The Commission recognizes that the development of electronic order-
routing systems continues to be in flux. The Commission intends to 
continue to monitor that process with a view toward providing further 
guidance by advisory or rule in the future. Among other things, the 
Commission will evaluate the manner in which electronic order-routing 
systems may interface with other audit trail recordkeeping practices in 
place at an exchange.

IV. Conclusion

    To the extent that a customer order is prepared and transmitted to 
and reported from an exchange trading pit by an electronic order-
routing system, or a customer order is prepared by an electronic off-
floor order management system, and the standards set forth below are 
satisfied, then the ``written'' record requirements of Commission 
Regulation 1.35(a-1)(1), (a-1)(2)(i), (a-1)(4), and/or (d) will be 
deemed satisfied by the electronic record generated by the system. 
Specifically, such electronic records must:
    (1) Include the customer order information required under 
Commission Regulation 1.35.(a-1)(1), (2)(i), (a-1)(4) and/or 1.35(d);
    (2) Include any modification, including any change and/or 
cancellation, that is made to an order and indicate the time the 
modification is recorded in the system;
    (3) Record all Commission-required and other order-related times, 
including order entry and exit times, and the time of any modification 
made to a customer order, including any change and/or cancellation, to 
the highest level of precision achievable by the operating system, but 
at least to the second. The times captured must not use a clock that 
can be modified by the person entering the order;
    (4) Be kept in hard copy and/or allowable hard copy substitution 
media, as provided under Commission Regulation 1.31. The stored records 
shall be open to inspection by the Commission or DOJ as required under 
Commission Regulation 1.31 and be made readily available to the 
Commission or DOJ in machine-readable media or hard copy upon request. 
Records stored on machine-readable media must use a format and coding 
structure specified in the Commission request. To the extent that 
records temporarily are stored in erasable form, appropriate security 
measures must be implemented by the system operator to prohibit any 
unauthorized access to the records and to maintain an accurate record 
of when and by whom records are accessed or modified.

    Issued in Washington, DC on February 12, 1997.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 97-4004 Filed 2-19-97; 8:45 am]
BILLING CODE 6351-01-P