[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Rules and Regulations]
[Pages 61690-61706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24742]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 241 and 242

[Release No. 34-58775; File No. S7-19-07]
RIN 3235-AJ57


Amendments to Regulation SHO

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
adopting amendments to Regulation SHO under the Securities Exchange Act 
of 1934 (``Exchange Act''). The amendments are intended to further 
reduce the number of persistent fails to deliver in certain equity 
securities by eliminating the options market maker exception to the 
close-out requirement of Regulation SHO. As a result of the amendments, 
fails to deliver in threshold securities that result from hedging 
activities by options market makers will no longer be excepted from 
Regulation SHO's close-out requirement. The Commission is also 
providing guidance regarding bona fide market making activities for 
purposes of the market maker exception to Regulation SHO's locate 
requirement.

DATES: Effective Date: October 17, 2008.

FOR FURTHER INFORMATION CONTACT: James A. Brigagliano, Associate 
Director, Josephine J. Tao, Assistant Director, Victoria L. Crane, 
Branch Chief, Joan M. Collopy, Special Counsel, Christina M. Adams and 
Matthew Sparkes, Staff Attorneys, Office of Trading Practices and 
Processing, Division of Trading and Markets, at (202) 551-5720, at the 
Securities and Exchange Commission, 100 F Street, NE., Washington, DC 
20549-6628.

SUPPLEMENTARY INFORMATION: The Commission is amending Rule 203 of 
Regulation SHO [17 CFR 242.203] under the Exchange Act.

I. Introduction

    To further Regulation SHO's goal of reducing fails to deliver in 
equity

[[Page 61691]]

securities, the Commission is adopting its proposal \1\ to eliminate 
the options market maker exception to the close-out requirement of 
Regulation SHO.\2\ As discussed in detail below, we believe that 
eliminating the exception, and thereby imposing additional delivery 
requirements on securities with a substantial amount of fails to 
deliver, will help to protect and enhance the operation, integrity, and 
stability of the markets, as well as reduce potential short selling 
abuses.
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    \1\ See Exchange Act Release No. 56213 (Aug. 7, 2007), 72 FR 
45558 (Aug. 14, 2007) (``Reproposal''); see also Exchange Act 
Release No. 54154 (July 14, 2006), 71 FR 41710 (July 21, 2006) 
(``2006 Regulation SHO Proposed Amendments''); Exchange Act Release 
No. 58107 (July 7, 2008), 73 FR 40201 (July 14, 2008) (``2008 
Regulation SHO Re-Opening Release'').
    \2\ 17 CFR 242.200; see also Securities Exchange Act Release No. 
50103 (July 28, 2004), 69 FR 48008 (Aug. 6, 2004) (``2004 Regulation 
SHO Adopting Release'').
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II. Background

A. Regulation SHO

    Regulation SHO, which became fully effective on January 3, 2005, 
sets forth the regulatory framework governing short sales.\3\ Among 
other things, Regulation SHO imposes a close-out requirement to address 
failures to deliver stock on trade settlement date \4\ and to target 
potentially abusive ``naked'' short selling \5\ in certain equity 
securities.\6\ While the majority of trades settle on time,\7\ 
Regulation SHO is intended to address those situations where the level 
of fails to deliver for the particular stock is so substantial that it 
might impact the market for that security.\8\
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    \3\ Rule 200(a) of Regulation SHO defines a short sale as ``any 
sale of a security which the seller does not own or any sale which 
is consummated by the delivery of a security borrowed by, or for the 
account of, the seller.'' 17 CFR 242.200(a).
    \4\ Generally, investors complete or settle their security 
transactions within three business days. This settlement cycle is 
known as T+3 (or ``trade date plus three days''). T+3 means that 
when a trade occurs, the participants to the trade deliver and pay 
for the security at a clearing agency three business days after the 
trade is executed. The three-day settlement period applies to most 
security transactions, including stocks, bonds, municipal 
securities, mutual funds traded through a brokerage firm, and 
limited partnership interests that trade on an exchange. Government 
securities and stock options settle on the next business day 
following the trade. In addition, Rule 15c6-1 prohibits broker-
dealers from effecting or entering into a contract for the purchase 
or sale of a security that provides for payment of funds and 
delivery of securities later than the third business day after the 
date of the contract unless otherwise expressly agreed to by the 
parties at the time of the transaction. 17 CFR 240.15c6-1; Exchange 
Act Release No. 33023 (Oct. 7, 1993), 58 FR 52891 (Oct. 13, 1993). 
However, failure to deliver securities on T+3 does not violate Rule 
15c6-1.
    \5\ We have previously noted that abusive ``naked'' short 
selling, while not defined in the federal securities laws generally 
refers to selling short without having stock available for delivery 
and intentionally failing to deliver stock within the standard three 
day settlement cycle. See 2004 Regulation SHO Adopting Release, 69 
FR at 48009, n.10; Exchange Act Release No. 56212 (Aug. 7, 2007), 72 
FR at 45544, n.3 (Aug. 14, 2007) (``2007 Regulation SHO Final 
Amendments''); Exchange Act Release No. 57511 (March 17, 2008), 73 
FR 15376 (March 21, 2008) (``Naked Short Selling Anti-Fraud Rule 
Proposing Release'').
    \6\ In 2003, the Commission settled a case against certain 
parties relating to allegations of manipulative short selling in the 
stock of Sedona Corporation. The Commission alleged that the 
defendants profited from engaging in massive ``naked'' short selling 
that flooded the market with Sedona stock, and depressed its price. 
See Rhino Advisors, Inc. and Thomas Badian, Lit. Rel. No. 18003 
(Feb. 27, 2003); see also, SEC v. Rhino Advisors, Inc. and Thomas 
Badian, Civ. Action No. 03 civ 1310 (RO) (S.D.N.Y); see also, 
Securities Exchange Act Release No. 48709 (Oct. 28, 2003), 68 FR 
62972, 62975 (Nov. 6, 2003) (``2003 Regulation SHO Proposing 
Release'') (describing the alleged activity in the case involving 
stock of Sedona Corporation); 2004 Regulation SHO Adopting Release, 
69 FR at 48016, n.76.
    \7\ According to the National Securities Clearing Corporation 
(``NSCC''), 99% (by dollar value) of all trades settle on time. 
Thus, on an average day, approximately 1% (by dollar value) of all 
trades, including equity, debt, and municipal securities fail to 
settle. The vast majority of these fails are closed out within five 
days after T+3.
    \8\ These fails to deliver may arise from either short or long 
sales of securities. There may be legitimate reasons for a fail to 
deliver. For example, human or mechanical errors or processing 
delays can result from transferring securities in custodial or other 
form rather than book-entry form, thereby causing a fail to deliver 
on a long sale within the normal three-day settlement period. In 
addition, broker-dealers that make markets in a security (``market 
makers'') and who sell short thinly-traded, illiquid stock in 
response to customer demand may encounter difficulty in obtaining 
securities when the time for delivery arrives. The Commission's 
Office of Economic Analysis (``OEA'') estimates that, on an average 
day between May 1, 2007 and July 31, 2008 (i.e., the time period 
that includes all full months after the Commission started receiving 
price data from NSCC), trades in ``threshold securities,'' as 
defined in Rule 203(b)(c)(6) of Regulation SHO, that fail to settle 
within T+3 account for approximately 0.3% of dollar value of trading 
in all equity securities.
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    Although high fails levels exist only for a small percentage of 
issuers,\9\ we believe that all sellers of securities should promptly 
deliver, or arrange for delivery of, securities to the respective 
buyer, and that all buyers of securities have a right to expect prompt 
delivery of securities purchased. In addition, as we have stated on 
several prior occasions, we are concerned about the negative effect 
that fails to deliver may have on the markets and shareholders.\10\ For 
example, fails to deliver may deprive shareholders of the benefits of 
ownership, such as voting and lending.\11\ In addition, where a seller 
of securities fails to deliver securities on settlement date, in effect 
the seller unilaterally converts a securities contract (which is 
expected to settle within the standard three-day settlement period) 
into an undated futures-type contract, to which the buyer might not 
have agreed, or that might have been priced differently.\12\
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    \9\ The average daily number of securities on a threshold list 
(as defined infra note 22) in July 2008 was approximately 523 
securities, which comprised 0.6% of all equity securities, including 
those that are not covered by Regulation SHO. Regulation SHO's 
close-out requirement applies to any equity security of an issuer 
that is registered under Section 12 of the Exchange Act, or that is 
required to file reports pursuant to Section 15(d) of the Exchange 
Act.
    \10\ See 2007 Regulation SHO Final Amendments, 72 FR at 45544; 
2006 Regulation SHO Proposed Amendments, 71 FR at 41712; Reproposal, 
72 FR at 45558-45559; ``Naked'' Short Selling Anti-Fraud Rule 
Proposing Release, 73 FR at 15378.
    \11\ See id.
    \12\ See id.
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    Moreover, sellers that fail to deliver securities on settlement 
date may enjoy fewer restrictions than if they were required to deliver 
the securities in a timely manner, and such sellers may attempt to use 
this additional freedom to engage in trading activities that are 
designed to improperly depress the price of a security.\13\ In 
addition, by not borrowing securities and, therefore, not making 
delivery within the standard three-day settlement period, the seller 
avoids the costs of borrowing.
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    \13\ See Reproposal, 72 FR at 45559.
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    In addition, issuers and investors have repeatedly expressed 
concerns about fails to deliver in connection with manipulative 
``naked'' short selling. For example, in response to proposed 
amendments to Regulation SHO in 2006 \14\ designed to further reduce 
the number of persistent fails to deliver in certain equity securities 
by eliminating Regulation SHO's ``grandfather'' provision, and limiting 
the duration of the rule's options market maker exception, the 
Commission received a number of comments that expressed concerns about 
``naked'' short selling and extended delivery failures.\15\ Commenters 
continued to express these concerns in response to the Reproposal.\16\
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    \14\ See 2006 Regulation SHO Proposed Amendments, supra note 1.
    \15\ See, e.g., letter from Patrick M. Byrne, Chairman and Chief 
Executive Officer, Overstock.com, Inc., dated Sept. 11, 2006; letter 
from Daniel Behrendt, Chief Financial Officer, and Douglas Klint, 
General Counsel, TASER International, dated Sept. 18, 2006; letter 
from John Royce, dated April 30, 2007; letter from Michael Read, 
dated April 29, 2007; letter from Robert DeVivo, dated April 26, 
2007 (``DeVivo''); letter from Ahmed Akhtar, dated April 26, 2007.
    \16\ See, e.g., letter from Jack M. Wedam, dated Oct. 16, 2007; 
letter from Michael J. Ryan, Executive Director and Senior Vice 
President, Center for Capital Markets Competitiveness, U.S. Chamber 
of Commerce, dated Sept. 13, 2007 (``U.S. Chamber of Commerce''); 
letter from Robert W. Raybould, CEO Enteleke Capital Corp., dated 
Sept. 12, 2007 (``Raybould''); letter from Mary Helburn, Executive 
Director, National Coalition Against Naked Shorting, dated Sept. 11, 
2007 (``NCANS'').

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[[Page 61692]]

    To the extent that fails to deliver might be part of manipulative 
``naked'' short selling, which could be used as a tool to drive down a 
company's stock price,\17\ such fails to deliver may undermine the 
confidence of investors.\18\ These investors, in turn, may be reluctant 
to commit capital to an issuer they believe to be subject to such 
manipulative conduct.\19\ In addition, issuers may believe that they 
have suffered unwarranted reputational damage due to investors' 
negative perceptions regarding fails to deliver in the issuer's 
security.\20\ Unwarranted reputational damage caused by fails to 
deliver might have an adverse impact on the security's price.\21\
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    \17\ See supra, note 6 (discussing a case in which we alleged 
that the defendants profited from engaging in massive ``naked'' 
short selling that flooded the market with the company's stock, and 
depressed its price); see also S.E.C. v. Gardiner, 48 S.E.C. Docket 
811, No. 91 Civ. 2091 (S.D.N.Y. March 27, 1991) (alleged 
manipulation by sales representative by directing or inducing 
customers to sell stock short in order to depress its price); U.S. 
v. Russo, 74 F.3d 1383, 1392 (2d Cir. 1996) (short sales were 
sufficiently connected to the manipulation scheme as to constitute a 
violation of Exchange Act Section 10(b) and Rule 10b-5).
    \18\ In response to the Reproposal, we received comment letters 
discussing the impact of fails to deliver on investor confidence. 
See, e.g., letter from NCANS. Commenters expressed similar concerns 
in response to the 2006 Regulation SHO Proposed Amendments. See, 
e.g., letter from Mary Helburn, Executive Director, National 
Coalition Against Naked Shorting, dated Sept. 30, 2006 (``NCANS 
2006''); letter from Richard Blumenthal, Attorney General, State of 
Connecticut, dated Sept. 19, 2006 (``Blumenthal'').
    \19\ In response to the Reproposal, we received comment letters 
expressing concern about the impact of potential ``naked'' short 
selling on capital formation, claiming that ``naked'' short selling 
causes a drop in an issuer's stock price and may limit the issuer's 
ability to access the capital markets. See, e.g., letter from Robert 
K. Lifton, Chairman and CEO, Medis Technologies, Inc., dated Sept. 
12, 2007 (``Medis''); letter from NCANS. Commenters expressed 
similar concerns in response to the 2006 Regulation SHO Proposed 
Amendments. See, e.g., letter from Congressman Tom Feeney--Florida, 
U.S. House of Representatives, dated Sept. 25, 2006 (``Feeney''); 
see also letter from Zix Corporation, dated Sept. 19, 2006 (``Zix'') 
(stating that ``[m]any investors attribute the Company's frequent 
re-appearances on the Regulation SHO list to manipulative short 
selling and frequently demand that the Company ``do something'' 
about the perceived manipulative short selling. This perception that 
manipulative short selling of the Company's securities is 
continually occurring has undermined the confidence of many of the 
Company's investors in the integrity of the market for the Company's 
securities.'').
    \20\ Due in part to such concerns, some issuers have taken 
actions to attempt to make transfer of their securities ``custody 
only,'' thus preventing transfer of their stock to or from 
securities intermediaries such as the Depository Trust Company 
(``DTC'') or broker-dealers. See Exchange Act Release No. 48709 
(Oct. 28, 2003), 68 FR 62972, at 62975 (Nov. 6, 2003). Some issuers 
have attempted to withdraw their issued securities on deposit at 
DTC, which makes the securities ineligible for book-entry transfer 
at a securities depository. See id. Withdrawing securities from DTC 
or requiring custody-only transfers would undermine the goal of a 
national clearance and settlement system that is designed to reduce 
the physical movement of certificates in the trading markets. See 
id. We note, however, that in 2003 the Commission approved a DTC 
rule change clarifying that its rules provide that only its 
participants may withdraw securities from their accounts at DTC, and 
establishing a procedure to process issuer withdrawal requests. See 
Securities Exchange Act Release No. 47978 (June 4, 2003), 68 FR 
35037 (June 11, 2003).
    \21\ See 2006 Regulation SHO Proposed Amendments, 71 FR at 
41712; 2007 Regulation SHO Final Amendments, 72 FR at 45544; 
Reproposal, 72 FR at 45558-45559; ``Naked'' Short Selling Anti-Fraud 
Rule Proposing Release, 73 FR at 15378 (providing additional 
discussion of the impact of fails to deliver on the market); see 
also 2003 Regulation SHO Proposing Release, 68 FR at 62975 
(discussing the impact of ``naked'' short selling on the market).
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B. Amendments to Regulation SHO's Close-Out Requirement

    Regulation SHO's close-out requirement, which is contained in Rule 
203(b)(3) of Regulation SHO, applies only to securities in which a 
substantial amount of fails to deliver have occurred (also known as 
``threshold securities'').\22\ Specifically, the close-out requirement 
requires a participant of a clearing agency registered with the 
Commission \23\ to take immediate action to close out a fail to deliver 
position in a threshold security in the Continuous Net Settlement 
(``CNS'') \24\ system that has persisted for 13 consecutive settlement 
days by purchasing securities of like kind and quantity.\25\ In 
addition, if the failure to deliver has persisted for 13 consecutive 
settlement days, Rule 203(b)(3)(iv) prohibits the participant, and any 
broker-dealer for which it clears transactions, including market 
makers, from accepting any short sale orders or effecting further short 
sales in the particular threshold security without borrowing, or 
entering into a bona-fide arrangement to borrow, the security until the 
participant closes out the fail to deliver position by purchasing 
securities of like kind and quantity.\26\
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    \22\ A threshold security is defined in Rule 203(c)(6) as any 
equity security of an issuer that is registered pursuant to section 
12 of the Exchange Act (15 U.S.C. 78l) or for which the issuer is 
required to file reports pursuant to section 15(d) of the Exchange 
Act (15 U.S.C. 78o(d)): (i) For which there is an aggregate fail to 
deliver position for five consecutive settlement days at a 
registered clearing agency of 10,000 shares or more, and that is 
equal to at least 0.5% of the issue's total shares outstanding; and 
(ii) that is included on a list (``threshold securities list'') 
disseminated to its members by a self-regulatory organization 
(``SRO''). See 17 CFR 242.203(c)(6). Currently, each SRO provides 
the threshold securities list for those securities for which the SRO 
is the primary market.
    \23\ For purposes of Regulation SHO, the term ``participant'' 
has the same meaning as in section 3(a)(24) of the Exchange Act. See 
15 U.S.C. 78c(a)(24). The term ``registered clearing agency'' means 
a clearing agency, as defined in section 3(a)(23) of the Exchange 
Act, that is registered as such pursuant to section 17A of the 
Exchange Act. See 15 U.S.C. 78c(a)(23)(A), 78q-1 and 15 U.S.C. 78q-
1(b), respectively. See also 2004 Regulation SHO Adopting Release, 
69 FR at 48031. As of July 31, 2008 approximately 91% of 
participants of the NSCC, the primary registered clearing agency 
responsible for clearing U.S. transactions, were registered as 
broker-dealers. Those participants not registered as broker-dealers 
include such entities as banks, U.S.-registered exchanges, and 
clearing agencies. Although these entities are participants of a 
registered clearing agency, generally these entities do not engage 
in the types of activities that would implicate the close-out 
requirements of Regulation SHO. Such activities of these entities 
include creating and redeeming Exchange Traded Funds, trading in 
municipal securities, and using NSCC's Envelope Settlement Service 
or Inter-city Envelope Settlement Service. These activities rarely 
lead to fails to deliver and, if fails to deliver do occur, they are 
small in number and are usually closed out within a day. Thus, such 
fails to deliver would not trigger the close-out provisions of 
Regulation SHO.
    \24\ The majority of equity trades in the United States are 
cleared and settled through systems administered by clearing 
agencies registered with the Commission. The NSCC clears and settles 
the majority of equity securities trades conducted on the exchanges 
and over the counter. NSCC clears and settles trades through the CNS 
system, which nets the securities delivery and payment obligations 
of all of its members. NSCC notifies its members of their securities 
delivery and payment obligations daily. In addition, NSCC guarantees 
the completion of all transactions and interposes itself as the 
contraparty to both sides of the transaction. While NSCC's rules do 
not authorize it to require member firms to close out or otherwise 
resolve fails to deliver, NSCC reports to the SROs those securities 
with fails to deliver of 10,000 shares or more. The SROs use NSCC 
fails data to determine which securities are threshold securities 
for purposes of Regulation SHO.
    \25\ 17 CFR 242.203(b)(3).
    \26\ Id. at (b)(3)(iv). It is possible under Regulation SHO that 
a close out by a participant of a registered clearing agency may 
result in a fail to deliver position at another participant if the 
counterparty from which the participant purchases securities fails 
to deliver. However, Regulation SHO prohibits a participant of a 
registered clearing agency, or a broker-dealer for which it clears 
transactions, from engaging in ``sham close outs'' by entering into 
an arrangement with a counterparty to purchase securities for 
purposes of closing out a fail to deliver position and the purchaser 
knows or has reason to know that the counterparty will not deliver 
the securities, and which thus creates another fail to deliver 
position. See id. at (b)(3)(vii); 2004 Regulation SHO Adopting 
Release, 69 FR at 48018 n.96. In addition, we note that borrowing 
securities, or otherwise entering into an arrangement with another 
person to create the appearance of a purchase would not satisfy the 
close-out requirement of Regulation SHO. For example, the purchase 
of paired positions of stock and options that are designed to create 
the appearance of a bona fide purchase of securities but that are 
nothing more than a temporary stock lending arrangement would not 
satisfy Regulation SHO's close-out requirement.
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    As adopted in August 2004, Rule 203(b)(3) of Regulation SHO 
included two exceptions to the mandatory close-out requirement. The 
first was the ``grandfather'' provision, which excepted fails to 
deliver established prior to a security becoming a threshold 
security.\27\ The second was the ``options

[[Page 61693]]

market maker exception,'' which excepted any fail to deliver in a 
threshold security resulting from short sales effected by a registered 
options market maker to establish or maintain a hedge on options 
positions that were created before the underlying security became a 
threshold security.\28\
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    \27\ See 2004 Regulation SHO Adopting Release, 69 FR at 48031. 
The ``grandfathered'' status applied in two situations: (i) To fail 
to deliver positions occurring before January 3, 2005, Regulation 
SHO's effective date; and (ii) to fail to deliver positions that 
were established on or after January 3, 2005 but prior to the 
security appearing on a threshold securities list.
    \28\ See 2004 Regulation SHO Adopting Release, 69 FR at 48031.
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    At the time of Regulation SHO's adoption, the Commission stated 
that it would monitor the operation of Regulation SHO to determine 
whether grandfathered fail to deliver positions were being cleared up 
under the existing delivery and settlement guidelines or whether any 
further regulatory action with respect to the close out provisions of 
Regulation SHO was warranted.\29\ In addition, with respect to the 
options market maker exception, the Commission noted that it would take 
into consideration any indications that this provision was operating 
significantly differently from the Commission's original 
expectations.\30\
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    \29\ See id. at 48018.
    \30\ See id. at 48019.
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    Based, in part, on the results of examinations conducted by the 
Commission's staff and the SROs since Regulation SHO's adoption, as 
well as the persistence of certain securities on threshold securities 
lists, on July 14, 2006, the Commission proposed amendments to 
Regulation SHO,\31\ which were intended to reduce the number of 
persistent fails to deliver in certain equity securities by eliminating 
the ``grandfather'' provision and narrowing the options market maker 
exception contained in that rule. In addition, in March 2007, the 
Commission re-opened the comment period to the 2006 Regulation SHO 
Proposed Amendments for thirty days to provide the public with an 
opportunity to comment on a summary of the National Association of 
Securities Dealers, Inc.'s (``NASD's'') (n/k/a Financial Industry 
Regulatory Authority, Inc.) analysis that the NASD had submitted to the 
public file on March 12, 2007. In addition, the notice regarding the 
re-opening of the comment period directed the public's attention to 
summaries of data collected by the Commission's Office of Compliance 
Inspections and Examinations and the New York Stock Exchange LLC 
(``NYSE'').\32\
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    \31\ See 2006 Regulation SHO Proposed Amendments, 71 FR 41710.
    \32\ See Securities Exchange Act Release No. 55520 (March 26, 
2007), 72 FR 15079 (March 30, 2007) (``2007 Regulation SHO Re-
Opening Release'').
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    On June 13, 2007, we approved the adoption of the amendment, as 
proposed, to eliminate the ``grandfather'' provision of Regulation 
SHO.\33\ With respect to the options market maker exception, however, 
in response to comments to the 2006 Regulation SHO Proposed Amendments, 
we reproposed amendments to eliminate the exception.\34\ In addition, 
the Commission sought comment on two alternative proposals that would 
require options market maker fails to deliver to be closed out within 
specific time-frames.\35\ The Reproposal also included an amendment to 
Regulation SHO that would require brokers-dealers marking a sale as 
``long'' to document the present location of the securities being sold.
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    \33\ See 2007 Regulation SHO Final Amendments, 72 FR 45544.
    \34\ See Reproposal, 72 FR 45558.
    \35\ See id.
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    We received over 1,000 comment letters in response to the 
Reproposal.\36\ Some commenters urged the Commission to obtain 
empirical data to demonstrate the relationship between fails to deliver 
and the options market maker exception before determining whether 
additional rulemaking was necessary.\37\ In particular, commenters 
urged the Commission to obtain data relating to the impact of the 
elimination of the ``grandfather'' provision and connecting fails to 
deliver to the options market maker exception.\38\ In response, the 
Commission staff obtained data from SROs, options market makers, and 
clearing agency participants that shows extensive use of the options 
market maker exception to Regulation SHO's close-out requirement and 
the resulting fails to deliver that were not closed out during 2006, 
2007, and 2008. In addition, OEA provided data which indicates that 
since the elimination of the ``grandfather'' provision, fails to 
deliver in threshold securities with options traded on them 
(``optionable threshold securities'') have increased significantly. The 
Commission made this data available to the public for review and 
comment by including it in a Commission release and re-opening the 
comment period to the Reproposal on July 7, 2008.\39\ The comment 
period ended on August 13, 2008.
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    \36\ The comment letters are available on the Commission's 
Internet Web Site at http://www.sec.gov/comments/s7-19-07/s71907.shtml.
    \37\ See, e.g., Comments of Keith F. Higgins, Committee on 
Federal Regulation of Securities, American Bar Association, Section 
of Business Law, dated Oct. 5, 2007 (``ABA''); comments of John 
Gilmartin and Ben Londergan, Group One Trading, LP, dated Sept. 28, 
2007; see also comments of Gerald D. O'Connell, Susquehanna 
Investment Group, dated Oct. 11, 2007 (``Susquehanna'').
    \38\ See letter from ABA.
    \39\ See 2008 Regulation SHO Re-Opening Release, 73 FR 40201.
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    As discussed below, after considering the comments received, the 
data, and the purposes underlying Regulation SHO, we are adopting 
amendments to eliminate the options market maker exception, as 
proposed.\40\ At this time, we are not acting on the proposed 
amendments to Rule 200(g) of Regulation SHO regarding long sale 
documentation. Instead, in a companion release we have adopted a 
``naked'' short selling anti-fraud rule that, in part, targets sellers' 
representations regarding long sales.\41\ In addition, we note that we 
have adopted an interim final temporary rule, Rule 204T, which 
strengthens the delivery requirements for sales of all equity 
securities.\42\ Under temporary Rule 204T, fail to deliver positions 
resulting from short sales of all equity securities by options market 
makers must be closed out by no later than the beginning of regular 
trading hours on the settlement day after the fail to deliver position 
occurs.\43\ In conjunction with these short sale-related initiatives, 
and our goal of further reducing fails to deliver and

[[Page 61694]]

addressing potentially abusive ``naked'' short selling, we believe that 
we must eliminate Regulation SHO's options market maker exception.
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    \40\ On September 17, 2008, we issued an emergency order 
pursuant to Section 12(k)(2) of the Exchange Act in which we adopted 
and made immediately effective the elimination of the options market 
maker exception to Regulation SHO's close-out requirement. See 
Exchange Act Release No. 58572 (Sept. 17, 2008) (the ``September 
Emergency Order''). The September Emergency Order expires on October 
17, 2008. This release makes permanent the amendments to Rule 
203(b)(3) of Regulation SHO contained in the September Emergency 
Order.
    \41\ See Exchange Act Release No. 58774 (Oct. 14, 2008); see 
also, September Emergency Order, supra note 40 (adopting and making 
immediately effective Rule 10b-21, a ``naked'' short selling anti-
fraud rule).
    \42\ See Exchange Act Release No. 58773 (Oct. 14, 2008) 
(``Interim Final Temporary Rule''); see also, September Emergency 
Order, supra note 40 (adding to Regulation SHO, and making 
immediately effective, temporary Rule 204T, imposing enhanced 
delivery requirements for sales of all equity securities).
    \43\ See id. The Interim Final Temporary Rule includes a limited 
exception from its delivery requirements for registered market 
makers, options market makers, or other market makers obligated to 
quote in the over-the-counter market. Specifically, temporary Rule 
204T(a)(3) provides that if a participant of a registered clearing 
agency has a fail to deliver position at a registered clearing 
agency in any equity security that is attributable to bona fide 
market making activities by a registered market maker, options 
market maker, or other market maker obligated to quote in the over-
the-counter market, the participant shall, by no later than the 
beginning of regular trading hours on the third consecutive 
settlement day following the settlement date, immediately close out 
the fail to deliver position by purchasing securities of like kind 
and quantity.
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III. Options Market Maker Exception

A. Discussion of Comments to the Reproposal and 2008 Regulation SHO Re-
Opening Release

    The Commission received comment letters from numerous entities, 
including issuers, individual retail investors, options market makers, 
SROs, elected officials, and academics.\44\ Although the comment 
letters are publicly available to be read in their entirety, we 
highlight below some of the main issues, concerns, and suggestions 
raised in the letters.
---------------------------------------------------------------------------

    \44\ See, e.g., letter from Patrick M. Byrne, Chairman and Chief 
Executive Officer, Overstock.com, Inc., dated Oct. 1, 2007 
(``Overstock''); letter from NCANS; letter from James H. Bramble, 
Vice President & General Counsel, USANA Health Sciences, Inc., dated 
Aug. 31, 2007 (``USANA''); letter from Paul Rivett, Vice President 
and Chief Legal Officer, Fairfax Financial Holdings, Ltd., dated 
Sept. 12, 2007 (``Fairfax Financial''); letter from Medis; letter 
from U.S. Chamber of Commerce; letter from Thomas Vallarino, dated 
Sept. 17, 2007; letter from Mark L. Shurtleff, Attorney General, 
State of Utah, dated Sept. 13, 2007; James J. Angel, Ph.D., CFA, 
Associate Professor of Finance, Georgetown University, dated Sept. 
10, 2007 (``Angel''); letter from Ira D. Hammerman, Senior Vice 
President and General Counsel, SIFMA, dated Sept. 26, 2007 
(``SIFMA''); letter from ABA; letter from Edward J. Joyce, President 
and Chief Operating Officer, Chicago Board Options Exchange, dated 
Sept. 17, 2007 (``CBOE''); letter from Gerard S. Citera, Chadbourne 
& Parke LLP, dated Sept. 13, 2007 (``UBS''); letter from Charles 
Mogilevsky, Managing Director, Citigroup Derivatives Markets, Inc., 
dated Sept. 14, 2007 (``Citigroup''); letter from The American Stock 
Exchange, Boston Options Exchange, CBOE, International Securities 
Exchange, NYSE/Arca, The Options Clearing Corporation, Philadelphia 
Stock Exchange, dated Sept. 19, 2007 (``Options Exchanges''); letter 
from Susquehanna.
---------------------------------------------------------------------------

    Several commenters supported the proposal to eliminate the options 
market maker exception. One commenter stated that it believes that the 
current options market maker exception ``harms investors and issuers, 
hinders the formation of capital, and is fatally flawed as written'' 
and that it should be eliminated.\45\ Another commenter stated that the 
options market maker exception ``is a well known tool of manipulators 
and must be removed to ensure a level playing field for public 
companies and their shareholders.'' \46\ One commenter that supported 
the amendments noted that ``options market makers should factor the 
cost of borrowing stock and selling short into the price of the put 
options being sold.'' \47\ Commenters also stated that 13 consecutive 
settlement days was more than sufficient to close out a fail to deliver 
relating to an options position.\48\
---------------------------------------------------------------------------

    \45\ See letter from NCANS.
    \46\ See letter from USANA; see also letter from Fairfax 
Financial (stating that the exception should be eliminated due to 
its ``detrimental impact on issuers and their shareholders and also 
because such exception is susceptible to significant abuse'').
    \47\ See letter from Fairfax Financial.
    \48\ See, e.g., letter from U.S. Chamber of Commerce.
---------------------------------------------------------------------------

    Commenters who opposed the proposed amendments generally criticized 
the impact of elimination on options market making risk, quote depths, 
spread widths, and market liquidity in threshold securities and 
securities that might become threshold securities. Among other things, 
they stated that the options market maker exception is integral to the 
options market maker's ability to make markets and manage risk and 
that, without the exception, making continuous markets would be very 
difficult, particularly in longer-dated options.\49\ One commenter 
suggested that ``withdrawing or greatly reducing the exception would 
cause varying losses of liquidity in over 20% of listed options and 
their underlying stocks.'' \50\ Another commenter stated that ``[i]f 
the exception is eliminated or narrowed in the manner proposed, [it] 
anticipates [options market makers] would be reluctant or even unable 
to effectively make markets on securities if they cannot be certain of 
their ability to establish and maintain an effective hedge and manage 
their risk through selling stock.'' \51\ Another commented that ``[t]he 
uncertainty, time, processing and expense necessary to pre-borrow when 
effecting a short sale, as well as the uncertainty and expense caused 
by a close out of a hedge, will by its nature adversely affect the 
[options market makers'] pricing of the option.'' \52\
---------------------------------------------------------------------------

    \49\ See letter from CBOE.
    \50\ See letter from Susquehanna.
    \51\ See id; see also letter from Options Exchanges; Citigroup.
    \52\ See letter from Citigroup.
---------------------------------------------------------------------------

    Some commenters who opposed elimination of the exception argued 
that options market makers, unlike equity market makers, should have an 
exception to Regulation SHO's close-out requirement because there are 
distinct differences between options market making and market making in 
the underlying stock. For example, one commenter stated that the risk 
to an options market maker of trading options on a threshold security 
is higher than that of a stock specialist because in the equity markets 
there is often a natural flow of buyers and sellers to trade against 
each other without the stock specialist having to take a position.\53\ 
According to the commenter, options market makers routinely have to 
take the other side of customer trades in the options transaction and 
must hedge the residual risk. This commenter also noted that when an 
options market maker must close out a fail to deliver position, it may 
have to worry about the risk and exposure for the options positions 
that were previously offset by the stock position.
---------------------------------------------------------------------------

    \53\ See letter from CBOE.
---------------------------------------------------------------------------

    Other commenters stated that equity market makers ``can freely 
hedge an equity position in a threshold security with a short options 
position, but, if the options market maker exception is eliminated, 
options market makers would face restrictions in their ability to hedge 
options positions with the underlying equity.'' \54\ These commenters 
stated that the ability to keep open a fail to deliver position is 
particularly important with longer-term options positions where the 
options market maker must maintain the hedge for extended periods of 
time.\55\ In such circumstances, these commenters stated that often the 
only available and/or economically feasible hedge is the underlying 
security.
---------------------------------------------------------------------------

    \54\ See letter from Options Exchanges.
    \55\ See, e.g., letter from Citigroup.
---------------------------------------------------------------------------

    Some commenters also stated that the one-time 35 consecutive 
settlement day phase-in period was ``particularly troubling because it 
would not be sufficient to account for pre-existing options positions 
that were assumed in reliance on the [options market maker 
exception].'' \56\ In particular, these commenters expressed concerns 
about increased costs and risks associated with having to close out 
previously-exempted fails to deliver relating to the hedging of longer-
term options positions, such as Long-term Equity Anticipation 
Securities (``LEAPS''),\57\ that were not anticipated at the time the 
options positions were originally taken.\58\
---------------------------------------------------------------------------

    \56\ See letter from CBOE; see also letter from Options 
Exchanges.
    \57\ LEAPS are long-term stock or index options. LEAPS, like all 
options, are available in two types, calls and puts, with expiration 
dates up to three years in the future. See http://www.cboe.com/LearnCenter/glossary_g-l.aspx#L (defining LEAPS).
    \58\ See, e.g., letter from CBOE; Options Exchanges; Citigroup.
---------------------------------------------------------------------------

    Some commenters also opposed the proposed alternatives. For 
example, one commenter stated that the ``35-day window afforded options 
market makers to fail would simply create opportunities for 
sophisticated market participants to employ complex derivative 
strategies to roll failed positions from one period to the next.'' \59\ 
Other commenters preferred the proposed 35 day close out

[[Page 61695]]

alternative to elimination of the options market maker exception.\60\ 
Some commenters, however, requested that the Commission extend the 
proposed alternative 35 day close-out requirement to 42 days \61\ or 
even 45 days,\62\ to allow for 2 options expirations before a fail to 
deliver position must be closed out.
---------------------------------------------------------------------------

    \59\ See letter from Overstock.
    \60\ See, e.g., letter from CBOE; Options Exchanges; UBS.
    \61\ See, e.g., letter from CBOE; Options Exchanges.
    \62\ See letter from Susquehanna.
---------------------------------------------------------------------------

    We also received a number of comment letters in response to the 
2008 Regulation SHO Re-Opening Release, most of which urged the 
Commission to take action on the proposed amendments to eliminate the 
options market maker exception.\63\ In contrast, one commenter noted 
that it does not believe that there is evidence of a significant 
problem with extended fails to deliver or, if such a problem exists, 
evidence that it is attributable to the options market maker 
exception.\64\ In addition, this commenter stated that it believes 
``[t]he perceived benefits of modifying the exception * * * would not 
outweigh the costs associated and burden placed on OMMs and options 
market they support.'' \65\
---------------------------------------------------------------------------

    \63\ Comment letters are available on the Commission's Internet 
Web site at http://www.sec.gov/comments/s7-19-07/s71907.shtml.
    \64\ See letter from Edward J. Joyce, President and Chief 
Operating Officer, Chicago Board Options Exchange, dated Aug. 15, 
2008 (``CBOE 2008'').
    \65\ See id.
---------------------------------------------------------------------------

    As discussed in detail below, although we recognize commenters' 
concerns that elimination of the options market maker exception may 
place costs and burdens on options market makers, we believe that such 
potential effects are justified by the benefits that are expected to 
result from requiring that all fails to deliver in threshold securities 
be closed out within specific time-frames rather than being allowed to 
continue indefinitely.

B. Discussion of Amendments

    After careful consideration of the comments, we are adopting 
amendments to eliminate the options market maker exception to 
Regulation SHO's close-out requirement. Specifically, as a result of 
the amendments, all fails to deliver in a threshold security resulting 
from short sales by a registered options market maker effected to 
establish or maintain a hedge on options positions established before 
the security became a threshold security will, like all other fails to 
deliver in threshold securities, have to be closed out in accordance 
with the close-out requirements of Regulation SHO.\66\
---------------------------------------------------------------------------

    \66\ Accordingly, the amendments remove the options market maker 
exception from Rule 203(b)(3)(iii) of Regulation SHO, as adopted. We 
note that we have adopted on an interim final temporary basis, 
temporary Rule 204T that strengthens the delivery requirements of 
Regulation SHO for sales of all equity securities such that fails to 
deliver must be closed out by no later than the beginning of regular 
trading hours on the settlement day following the day the 
participant incurred the fail to deliver position. The temporary 
rule has a limited exception from this close-out requirement for 
options market makers. See Interim Final Temporary Rule, supra at 
notes 42 and 43.
---------------------------------------------------------------------------

    The amendments include a one-time 35 consecutive settlement day 
phase-in period, as proposed.\67\ Under this provision of the 
amendments, any previously excepted fail to deliver position in a 
threshold security on the effective date of the amendments, including 
any adjustments to that fail to deliver position, must be closed out 
within 35 consecutive settlement days of the effective date of the 
amendments.\68\ We chose 35 settlement days because 35 days was used in 
Regulation SHO as adopted in August 2004, and in Regulation SHO, as 
amended.\69\
---------------------------------------------------------------------------

    \67\ See Adopted Rule 203(b)(3)(iii).
    \68\ If the security is a threshold security on the effective 
date of the amendments, participants of a registered clearing agency 
will have to close out that position within 35 consecutive 
settlement days, regardless of whether the security becomes a non-
threshold security after the effective date of the amendments.
    \69\ See 2004 Regulation SHO Adopting Release, 69 FR at 48031; 
2007 Regulation SHO Final Amendments, 72 FR at 45557.
---------------------------------------------------------------------------

    In the September Emergency Order, we adopted and made immediately 
effective the elimination of the options market maker exception to 
Regulation SHO's close-out requirement.\70\ Thus, if there was a fail 
to deliver position at a registered clearing agency in a security that 
was a threshold security on the effective date of the September 
Emergency Order, participants of a registered clearing agency had to 
close out that position within 35 consecutive settlement days, 
regardless of whether the security became a non-threshold security 
after the effective date of the September Emergency Order. Because this 
release makes the elimination of the options market maker exception as 
set forth in the September Emergency Order permanent, and because the 
amendments contained in this release are effective on the expiration 
date of the September Emergency Order (i.e., October 17, 2008), any 
fails to deliver in threshold securities that were being closed out 
pursuant to the 35 consecutive settlement day phase-in period as set 
forth in the September Emergency Order will not receive an additional 
35 consecutive settlement days from October 17, 2008 in which to be 
closed out. Instead, the 35 consecutive settlement days will continue 
to run from the effective date of the September Emergency Order. Any 
fails to deliver in securities that became threshold securities after 
the effective date of the September Emergency Order and that are still 
threshold securities on the effective date of these amendments, must be 
closed out in accordance with the current close-out requirements of 
Regulation SHO, rather than within 35 consecutive settlement days of 
the effective date of these amendments.\71\
---------------------------------------------------------------------------

    \70\ See supra note 40.
    \71\ For the duration of temporary Rule 204T, fails to deliver 
in all equity securities, regardless of whether or not the security 
is a threshold security, must be closed out in accordance with the 
requirements of the temporary rule.
---------------------------------------------------------------------------

    Although, as noted above, some commenters stated that the one-time 
35 consecutive settlement day phase-in period was ``particularly 
troubling because it would not be sufficient to account for pre-
existing options positions that were assumed in reliance on the 
[options market maker exception]'' \72\, we believe that a 35 
consecutive settlement day phase-in period allows participants 
sufficient time to close out any previously excepted fail to deliver 
positions with limited disruption to the market and helps foster market 
stability because it provides participants with a sufficient length of 
time to effect purchases to close out these positions in an orderly 
manner.
---------------------------------------------------------------------------

    \72\ See, e.g., letter from CBOE.
---------------------------------------------------------------------------

    We are also adopting our proposal that if the fail to deliver 
position persists for 35 consecutive settlement days from the effective 
date of the amendment, a participant of a registered clearing agency 
(and any broker-dealer for which it clears transactions, including any 
market maker), is prohibited from accepting any short sale orders or 
effecting further short sales in the particular threshold security 
without borrowing, or entering into a bona-fide arrangement to borrow, 
the security until the participant closes out the entire fail to 
deliver position by purchasing securities of like kind and 
quantity.\73\ Due to the requirements of the September Emergency Order, 
this provision of the amendments is applicable to those fails to 
deliver that may be closed out within 35 consecutive settlement days of 
the effective date of the September Emergency Order but are not closed 
out within that time-frame.
---------------------------------------------------------------------------

    \73\ See Adopted Rule 203(b)(3)(v).

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

[[Page 61696]]

    If a security becomes a threshold security after the effective date 
of the amendments, any fails to deliver that result or resulted from 
short sales effected by a registered options market maker to establish 
or maintain a hedge on options positions that were created before the 
security became a threshold security will be subject to Regulation 
SHO's close-out requirements, similar to any other fail to deliver 
position in a threshold security.\74\
---------------------------------------------------------------------------

    \74\ See 17 CFR 242.203(b)(3); see also Interim Final Temporary 
Rule, supra notes 42 and 43 (amending Regulation SHO to strengthen 
the delivery requirements for sales of all equity securities).
---------------------------------------------------------------------------

    We believe that it is appropriate to eliminate Regulation SHO's 
options market maker exception because substantial levels of fails to 
deliver continue to persist in threshold securities and it appears that 
a significant number of these fails to deliver are as a result of the 
options market maker exception.\75\ As noted above, the Commission 
staff obtained data from SROs, options market makers, and clearing 
agency participants that shows extensive use of the options market 
maker exception to Regulation SHO's close-out requirement and the 
resulting fails to deliver that were not closed out during 2006, 2007, 
and 2008.\76\ For example, the data showed that as of January 31, 2008, 
a participant that settles and clears for a large segment of the 
options market claimed the options market maker exception to the close-
out requirement in 16 threshold securities for a total of 6,365,158 
fails to deliver. As of February 29, 2008, the data indicated that this 
participant claimed the options market maker exception in 20 threshold 
securities for a total of 6,963,949 fails to deliver. In addition, 
according to data provided by FINRA for 2007 relating to a participant 
that settles and clears for a large segment of the options market, fail 
to deliver positions not closed out by the participant due to it 
claiming the options market maker exception ranged from 35,655 fails to 
deliver in one month that year, to as much as 5,621,982 in another 
month that year. According to a review conducted by several SROs 
between May to July 2006, there were 598 exceptions claimed, covering 
58 threshold securities for a total of 11,759,799 fails to deliver.\77\
---------------------------------------------------------------------------

    \75\ See 2008 Regulation SHO Re-Opening Release, 73 FR 40201.
    \76\ See id.
    \77\ See id.
---------------------------------------------------------------------------

    In addition, following the elimination of the ``grandfather'' 
exception to Regulation SHO's close-out requirement, data collected by 
OEA indicates that although fails to deliver overall decreased 
slightly, fails to deliver in optionable threshold securities increased 
significantly. The ``grandfather'' exception was eliminated as of 
October 15, 2007 with a one-time phase in period which expired on 
December 5, 2007. The sample data used by OEA compares two time 
periods: April 9, 2007-October 14, 2007, which is defined as the ``pre-
amendment period'' and December 10, 2007-March 31, 2008, which is 
defined as the ``post-amendment period.'' Specifically, the results of 
OEA's analysis of fails to deliver before and after the elimination of 
Regulation SHO's ``grandfather'' exception show that: \78\
---------------------------------------------------------------------------

    \78\ See id; see also Memorandum from the Commission's Office of 
Economic Analysis (dated June 9, 2008), which is available on the 
Commission's Internet Web site at http://www.sec.gov/comments/s7-19-07/s71907-562.pdf (the ``OEA Memorandum'').
---------------------------------------------------------------------------

     The average daily number of optionable threshold 
securities increased by 25.0%.
     The average daily number of new fail to deliver positions 
in optionable threshold securities increased by 45.3%.
     For fails aged more than 17 days in optionable threshold 
securities, the average daily dollar value of fails to deliver 
increased by 73.4%.
     For fails aged more than 17 days in optionable threshold 
securities, the average daily number of fail to deliver positions 
increased by 30.7%.
     The average daily number of optionable threshold 
securities with fails aged more than 17 days increased by 40.9%.
    The data shows a 25 percent increase in the number of optionable 
threshold securities and a substantial increase in fails to deliver in 
optionable threshold securities when comparing the pre- and post-
amendment periods. As the OEA Memorandum notes ``[o]ne explanation of 
these results is that the investors who previously failed to deliver in 
the equity market have now moved to the options market to establish a 
synthetic position. Since the option market makers still enjoy an 
exception to the close-out rule and tend to hedge their positions in 
the equity markets, the fails may now be coming from the option market 
makers instead of the equity investors themselves.'' \79\
---------------------------------------------------------------------------

    \79\ See OEA Memorandum.
---------------------------------------------------------------------------

    As discussed above, commenters opposing the proposed amendments 
criticized the impact of the proposals on options market making risk, 
quote depths, spread widths, and market liquidity, particularly in 
threshold securities and securities that might become threshold 
securities.\80\ Although we recognize these commenters' concerns 
regarding a mandatory close-out requirement for fails to deliver in 
threshold securities underlying options positions, for the reasons 
outlined below, we believe these potential effects are justified by the 
benefits of requiring that fails to deliver in all threshold securities 
be closed out within specific time-frames rather than being allowed to 
continue indefinitely. In addition, we believe the overall market 
impact of these potential effects, if any, will be minimal.
---------------------------------------------------------------------------

    \80\ See, e.g., letter from Citigroup.
---------------------------------------------------------------------------

    First, as discussed above, large and persistent fails to deliver 
can deprive shareholders of the benefits of ownership, such as voting 
and lending. They can also be indicative of potentially manipulative 
conduct, such as abusive ``naked'' short selling. The deprivation of 
the benefits of ownership, as well as the perception that abusive 
``naked'' short selling is occurring in certain securities, can 
undermine the confidence of investors. These investors, in turn, may be 
reluctant to commit capital to an issuer they believe to be subject to 
manipulative conduct.
    In the Reproposal, we sought comment on whether the proposed 
amendments would promote capital formation, including whether the 
proposed increased short sale restrictions would affect investors' 
decisions to invest in certain equity securities. Commenters expressed 
concern about ``naked'' short selling causing a drop in an issuer's 
stock price and that it may limit an issuer's ability to access the 
capital markets.\81\ We believe that, by requiring that all fails to 
deliver in threshold securities be closed out within specific time-
frames rather than allowing them to continue indefinitely, there will 
be a decrease in the number of threshold securities with persistent and 
high levels of fails to deliver. If persistence on the threshold 
securities lists leads to an unwarranted decline in investor confidence 
about the security, the amendments should improve investor confidence 
about the security.\82\ We also believe that the amendments should lead 
to greater certainty in the settlement of securities which should 
strengthen investor confidence in the settlement process. The reduction 
in fails to deliver and the resulting reduction in the number of 
securities on the threshold securities

[[Page 61697]]

lists could result in increased investor confidence.
---------------------------------------------------------------------------

    \81\ See supra note 19.
    \82\ See letter from Overstock.
---------------------------------------------------------------------------

    Thus, by eliminating the options market maker exception so that all 
fails to deliver in threshold securities that result from short sales 
effected to maintain or establish a hedge on options positions will 
have to be closed out in accordance with Regulation SHO's close-out 
requirements, we expect a reduction in the number of threshold 
securities with large and persistent fails to deliver and, thereby, 
offsetting any potential negative impact of such fails to deliver on 
the market for these securities.\83\
---------------------------------------------------------------------------

    \83\ See 17 CFR 242.203(b)(3); see also Interim Final Temporary 
Rule, supra notes 42 and 43 (amending Regulation SHO to strengthen 
the delivery requirements for sales of all equity securities).
---------------------------------------------------------------------------

    Second, while we recognize commenters' concerns that on a security-
by-security basis the impact on options market maker costs, liquidity, 
quote depths, and spread widths may vary considerably, and in some 
cases, might be large,\84\ we believe the overall market impact of the 
amendments will be minimal because the number of securities that will 
be impacted by the amendments will be relatively small. As previously 
noted by one commenter, a small number of securities that meet the 
definition of a ``threshold security'' have listed options, and those 
securities form a very small percentage of all securities that have 
options traded on them.\85\ In addition, OEA estimates that in July 
2008, 451 (13.6%) of the 3,326 securities with options classes trading 
on at least one options market appeared on a threshold securities list 
for at least one day that month. Even though these securities may form 
a small percentage of all securities that have options traded on them, 
we are still concerned that these fails to deliver can have a 
disproportionate impact on the markets and shareholders.
---------------------------------------------------------------------------

    \84\ See, e.g., letter from Options Exchanges.
    \85\ For example, in its letter, Susquehanna noted that in June 
2007, 174 (8%) of the 2,242 stocks with options classes trading on 
the CBOE, appeared on a threshold list for at least one day that 
month. See letter from Susquehanna.
---------------------------------------------------------------------------

    Moreover, the options market maker exception only excepted from 
Regulation SHO's mandatory 13 consecutive settlement day close-out 
requirement those fail to deliver positions resulting from short sales 
effected by registered options market makers to establish or maintain a 
hedge on options positions established before the underlying security 
became a threshold security. Thus, it did not apply to fails to deliver 
resulting from short sales effected to establish or maintain a hedge on 
options positions established after the underlying security became a 
threshold security. Because the options market maker exception had a 
very limited application, the overall impact of its removal on 
liquidity, hedging costs, spreads, and depth, should be relatively 
small. Nevertheless, we understand commenters' concerns that on a 
security-by-security basis the impact on options market maker costs 
might, in some cases, be large. However, on balance, we believe such 
costs are justified by the benefits that are expected to result from 
requiring that all fails to deliver in threshold securities be closed 
out within specific time-frames rather than being allowed to continue 
indefinitely.
    Third, some commenters noted concerns about having to close out 
fails to deliver in connection with the hedging of longer-term options 
because such fails may have been open for months or years.\86\ These 
commenters suggested that with respect to such fails to deliver, the 
close-out requirement be tied to the expiration or liquidation of such 
options. However, this would mean that these fails to deliver could 
persist for months or years. We believe that all fails to deliver in 
threshold securities must be closed out in a timely manner. Longer-term 
options can have expiration periods that extend for years. To tie the 
close out of a fail to deliver position resulting from a hedge of such 
options to the liquidation or expiration of such options would 
undermine this goal. As discussed above, large and persistent fails to 
deliver can deprive shareholders of the benefits of ownership, such as 
voting and lending. We also believe that all sellers of securities 
should promptly deliver, or arrange for delivery of, securities to the 
respective buyer and all buyers of securities have a right to expect 
prompt delivery of securities purchased.
---------------------------------------------------------------------------

    \86\ See, e.g., letter from CBOE; Options Exchanges; Citigroup.
---------------------------------------------------------------------------

    In addition, the 35 consecutive settlement day phase-in period of 
the amendments allows participants sufficient time to close out any 
previously excepted fail to deliver positions that may have been open 
for months or years as a result of hedging activity in connection with 
longer-term options. The phase-in period limits the disruption to the 
market and helps foster market stability because it provides 
participants with a sufficient length of time to effect purchases to 
close out these positions in an orderly manner.
    Fourth, the potential impact of the amendments on options market 
making risk, quote depths, spread widths, and market liquidity will be 
limited because, as noted above, Regulation SHO's options market maker 
exception applied only to those fail to deliver positions that resulted 
from short sales effected by registered options market makers to 
establish or maintain a hedge on options positions established before 
the underlying security became a threshold security. Thus, it did not 
apply to fails to deliver resulting from short sales effected to 
establish or maintain a hedge on options positions established after 
the underlying security became a threshold security. Some commenters 
stated that they believe there has been harm to the markets under the 
current close out structure of Regulation SHO.\87\ As we noted in the 
Reproposal, however, in examining the application of the mandatory 
close-out requirement of Rule 203(b)(3) of Regulation SHO for all non-
excepted fail to deliver positions, it does not appear that Rule 
203(b)(3)'s close-out requirement for non-excepted fails to deliver in 
threshold securities has impacted options market makers' willingness to 
provide liquidity in threshold securities or securities likely to 
become threshold securities, or substantially impacted option market 
maker risk, quote depths, or spread widths.
---------------------------------------------------------------------------

    \87\ See, e.g., letter from CBOE; see also letter from 
Overstock.
---------------------------------------------------------------------------

    In addition, we note that options market makers may only need to 
hedge via a short sale in the equity markets for a small fraction of 
their total trading activity. Academic research suggests that non-
market maker option open interest tends to heavily favor the upside, 
which implies that the customary hedge for the typical option market 
making position is a long equity position rather than a short equity 
position.\88\ More recent data from January to July 2008 also suggests 
an upside bias in option open interest.\89\
---------------------------------------------------------------------------

    \88\ See Lakonishok, Poteshman, and Lee, ``Investor Behavior and 
the Options Markets,'' Working Paper 10264 (2004) (http://www.nber.org/papers/w10264.pdf.).
    \89\ Data from The Options Clearing Corporation web site shows 
that call open interest generally exceeded put open interest by 
about 10% on the average day during January to July 2008.
---------------------------------------------------------------------------

    Fifth, while commenters may believe that a mandatory close-out 
requirement for all fails to deliver resulting from hedging activity in 
the options markets may potentially impact liquidity, hedging costs, 
depth, or spreads, or impact the willingness of options market makers 
to make markets in certain securities, we believe that such effects are 
justified by our belief that fails to deliver resulting from hedging 
activities by options market makers

[[Page 61698]]

should be treated similarly to fails to deliver resulting from sales in 
the equities markets so that market participants trading threshold 
securities in the options markets do not receive an advantage over 
those trading such securities in the equities markets.
    As discussed above, commenters who opposed elimination of the 
exception argued that options market makers, unlike equity market 
makers, should have an exception to Regulation SHO's close-out 
requirement because there are distinct differences between options 
market making and market making in the underlying stock. We do not 
believe that for purposes of the close-out requirement of Regulation 
SHO, options and equity market makers should be treated differently. 
Due to our concerns about the potentially negative market impact of 
large and persistent fails to deliver, and the fact that we continue to 
observe a small number of threshold securities with fail to deliver 
positions that are not being closed out under existing delivery and 
settlement requirements, we adopted amendments to eliminate Regulation 
SHO's ``grandfather'' provision that allowed fails to deliver resulting 
from long or short sales of equity securities to persist indefinitely 
if the fails to deliver occurred prior to the security becoming a 
threshold security.\90\ We believe that once a security becomes a 
threshold security, fails to deliver in that security must be closed 
out, regardless of whether or not the fails to deliver resulted from 
sales of the security in connection with the options or equities 
markets.
---------------------------------------------------------------------------

    \90\ See 2007 Regulation SHO Final Amendments, 72 FR 45544; see 
also 2006 Regulation SHO Proposed Amendments, 71 FR 41710.
---------------------------------------------------------------------------

    Moreover, we are concerned that the options market maker exception 
might have allowed for a regulatory arbitrage not permitted in the 
equities markets.\91\ For example, an options market maker who sells 
short to hedge put options purchased by a market participant unable to 
locate shares for a short sale in accordance with Rule 203(b)(2) of 
Regulation SHO may not have to close out any fails to deliver that 
result from such short sales under the options market maker exception. 
The ability of options market makers to sell short and never have to 
close out a resulting fail to deliver position, provided the short sale 
was effected to hedge options positions created before the security 
became a threshold security, runs counter to the goal of requiring that 
all fails to deliver in threshold securities be closed out.
---------------------------------------------------------------------------

    \91\ See Reproposal, 72 FR at 45563.
---------------------------------------------------------------------------

    In addition, we note that although the proposed alternatives could 
lessen the potential negative impact of large and persistent fails to 
deliver, we believe that complete elimination of the options market 
maker exception would achieve this goal more effectively. By 
eliminating the options market maker exception, all fails to deliver in 
threshold securities will have to be closed out in accordance with 
Regulation SHO's close-out requirements.\92\ The proposed alternatives, 
however, would each allow a longer period of time for fail to deliver 
positions to be closed out. Specifically, the first alternative would 
allow certain fails to deliver to be closed out within 35 consecutive 
settlement days of the security becoming a threshold security. Under 
the second alternative, although some fails to deliver would be 
required to be closed out in less than 35 consecutive settlement days, 
other fails to deliver would not have to be closed out until 35 
consecutive settlement days from the security becoming a threshold 
security.\93\
---------------------------------------------------------------------------

    \92\ See 17 CFR 242.203(b)(3); see also Interim Final Temporary 
Rule, supra notes 42 and 43 (amending Regulation SHO to strengthen 
the delivery requirements for sales of all equity securities).
    \93\ See Reproposal, 72 FR at 45589-45590.
---------------------------------------------------------------------------

    As we discussed in the Reproposal,\94\ we believe that the options 
market maker exception should be eliminated, rather than limited as in 
the proposed alternatives, because large and persistent fails to 
deliver are not being closed out under existing delivery requirements 
and because we are concerned that these fails to deliver may have a 
negative impact on the market for those securities. In addition, as 
noted in the Reproposal, we believe that fails to deliver resulting 
from hedging activities by options market makers should be treated 
similarly to fails to deliver resulting from sales in the equities 
markets so that market participants trading threshold securities in the 
options markets do not receive an advantage over those trading such 
securities in the equities markets. Thus, we have determined that the 
proposed alternatives are not feasible or in the public interest to act 
upon at this time.
---------------------------------------------------------------------------

    \94\ See id. at 45566-45567.
---------------------------------------------------------------------------

IV. Bona-Fide Market Making

    We are also taking the opportunity to provide guidance regarding 
issues that have arisen regarding what is bona-fide market making for 
purposes of complying with the market maker exception to the ``locate'' 
requirement of Rule 203(b)(1) of Regulation SHO. The 2004 Regulation 
SHO Adopting Release provides guidance as to what is bona-fide market 
making. We are reiterating that guidance and providing additional 
guidance in this adopting release.
    Rule 203(b)(1) provides that ``[a] broker or dealer may not accept 
a short sale order in an equity security from another person, or effect 
a short sale in an equity security for its own account, unless the 
broker or dealer has: (i) Borrowed the security, or entered into a 
bona-fide arrangement to borrow the security; or (ii) Reasonable 
grounds to believe that the security can be borrowed so that it can be 
delivered on the date delivery is due; and (iii) Documented compliance 
with this paragraph (b)(1).'' \95\ This is known as the ``locate'' 
requirement. Rule 203(b)(2)(iii) excepts market makers engaged in bona-
fide market making activities from the locate requirement. The 
Commission adopted this narrow exception to the locate requirement 
because such market makers may need to facilitate customer orders in a 
fast moving market without possible delays associated with complying 
with the locate requirement.\96\
---------------------------------------------------------------------------

    \95\ 17 CFR 242.203(b).
    \96\ See 2004 Regulation SHO Adopting Release, 69 FR at 48015, 
n. 67; see also Emergency Order Pursuant to Section 12(k)(2) of the 
Securities Exchange Act of 1934 Taking Temporary Action to Respond 
to Market Developments, Exchange Act Release No. 58166 (July 15, 
2008); Amendment to Emergency Order Pursuant to Section 12(k)(2) of 
the Securities Exchange Act of 1934 Taking Temporary Action to 
Respond to Market Developments, Exchange Act Release No. 58190 (July 
18, 2008) (excepting from the Emergency Order bona fide market 
makers).
---------------------------------------------------------------------------

    The term ``market maker'' includes any specialist permitted to act 
as a dealer, any dealer acting in the capacity of a block positioner, 
and any dealer who, with respect to a security, holds itself out (by 
entering quotations in an inter-dealer quotation system or otherwise) 
as being willing to buy and sell such security for its own account on a 
regular or continuous basis.\97\ Moreover, as the Commission has stated 
previously, a market maker engaged in bona-fide market making is a 
``broker-dealer that deals on a regular basis with other broker-
dealers, actively buying and selling the subject security as well as 
regularly and continuously placing quotations in a quotation medium on 
both the bid and ask side of the market.'' \98\ We note that block 
positioners, to the extent they engage in bona fide block positioning 
activities,

[[Page 61699]]

may also rely on this exception from the locate requirement in 
connection with such activities. Rule 3b-8(c) of the Exchange Act (17 
CFR 240.3b-8(c)) defines a ``qualified block positioner'' as a dealer 
that: (1) Is a broker or dealer registered pursuant to Section 15 of 
the Exchange Act; (2) is subject to and in compliance with Rule 15c3-1 
of the Exchange Act (17 CFR 240.15c3-1); (3) has and maintains minimum 
net capital, as defined in Rule 15c3-1, of $1,000,000; and (4) except 
when such activity is unlawful, meets all of the following conditions: 
(i) Engages in the activity of purchasing long or selling short, from 
time to time, from or to a customer (other than a partner or a joint 
venture or other entity in which a partner, the dealer, or a person 
associated with such dealer, as defined in Section 3(a)(18) of the 
Exchange Act, participates) a block of stock with a current market 
value of $200,000 or more in a single transaction, or in several 
transactions at approximately the same time, from a single source to 
facilitate a sale or purchase by such customer, (ii) has determined in 
the exercise of reasonable diligence that the block could not be sold 
to or purchased from others on equivalent or better terms, and (iii) 
sells the shares comprising the block as rapidly as possible 
commensurate with the circumstances.
---------------------------------------------------------------------------

    \97\ See 2004 Regulation SHO Adopting Release, 69 FR at 48015, 
n. 66 (citing to Section 3(a)(38) of the Exchange Act).
    \98\ See Exchange Act Release No. 32632 (July 14, 1993), 58 FR 
39072, 39074 (July 21, 1993).
---------------------------------------------------------------------------

    As discussed below, in the 2004 Regulation Adopting Release, we 
provided examples of the types of activities that would indicate that a 
market maker is not engaged in bona fide market making activities. In 
addition to reiterating that guidance, we are also providing examples 
of the types of activities that would indicate that a market maker is 
engaged in bona fide market making activities for purposes of claiming 
the exception to Regulation SHO's locate requirement.
    Although determining whether or not a market maker is engaged in 
bona-fide market making would depend on the facts and circumstances of 
the particular activity, factors that indicate a market maker is 
engaged in bona-fide market making activities may include, for example, 
whether the market maker incurs any economic or market risk with 
respect to the securities (e.g., by putting their own capital at risk 
to provide continuous two-sided quotes in markets). In fulfilling its 
obligations as a market maker, a market maker engaged in bona-fide 
market making may provide liquidity to a security's market, take the 
other side of trades when there are short-term buy-and-sell-side 
imbalances in customer orders, or attempt to prevent excess volatility. 
Such activities will result in the market maker assuming some risk. 
Thus, if the market maker does not incur any market risk with respect 
to a transaction or related set of transactions, the market maker may 
not be engaged in bona-fide market making activities.\99\
---------------------------------------------------------------------------

    \99\ For example, if a market maker sells stock (short) together 
with a synthetic short position (e.g., a conversion) to a client and 
the client then sells the stock (long) retaining the synthetic short 
position, the effect would be as if the market maker had ``rented'' 
its exemption to the client. Such transactions or other transactions 
that have the same effect will not be considered bona-fide market 
making activity.
---------------------------------------------------------------------------

    A pattern of trading that includes both purchases and sales in 
roughly comparable amounts to provide liquidity to customers or other 
broker-dealers would generally be an indication that a market maker is 
engaged in bona-fide market making activity. Thus, even selling short 
into a declining market may be an indication that a market maker is 
engaged in bona-fide market making activity. Continuous quotations that 
are at or near the market on both sides and that are communicated and 
represented in a way that makes them widely accessible to investors and 
other broker-dealers are also an indication that a market maker is 
engaged in bona-fide market making activity. However, as noted above, a 
market maker must hold itself out as being willing to buy and sell a 
security for its own account on a regular or continuous basis. Thus, a 
market maker's quotes must be generally accessible to the public for a 
market maker to be considered as holding itself out as being willing to 
buy and sell a security for its own account on a regular or continuous 
basis, and therefore, to be engaged in bona-fide market making 
activity.
    While determining whether or not a market maker is engaged in bona-
fide market making would depend on the facts and circumstances of the 
particular activity, there are clear examples of what types of 
activities would not be bona-fide market making activities. For 
example, the Commission has stated that bona-fide market making does 
not include activity that is related to speculative selling strategies 
or investment purposes of the broker-dealer and is disproportionate to 
the usual market making patterns or practices of the broker-dealer in 
that security.\100\ Likewise, where a market maker posts continually at 
or near the best offer, but does not also post at or near the best bid, 
the market maker's activities would not generally qualify as bona-fide 
market making.\101\ Moreover, a market maker that continually executes 
short sales away from its posted quotes would generally not be 
considered to be engaging in bona-fide market making.\102\ For purposes 
of qualifying for the locate exception in Regulation SHO, a market 
maker must also be a market maker in the security being sold, and must 
be engaged in bona-fide market making in that security at the time of 
the short sale.\103\
---------------------------------------------------------------------------

    \100\ See 2004 Regulation SHO Adopting Release, 69 FR at 48015.
    \101\ See id.
    \102\ See id.
    \103\ See Rule 203(b)(1) and (b)(2)(iii).
---------------------------------------------------------------------------

V. Other Matters

    The Administrative Procedure Act also generally requires that an 
agency publish an adopted rule in the Federal Register 30 days before 
it becomes effective.\104\ This requirement, however, does not apply if 
the agency finds good cause for making the rule effective sooner.\105\
---------------------------------------------------------------------------

    \104\ See 5 U.S.C. Sec.  553(d).
    \105\ Id.
---------------------------------------------------------------------------

    As noted above, in the September Emergency Order, we adopted, and 
made immediately effective, amendments to Rule 203(b)(3) of Regulation 
SHO to eliminate the options market maker exception to Regulation SHO's 
close-out requirement. The September Emergency Order expires on October 
17, 2008. We believe that the amendments contained in this adopting 
release should be effective on October 17, 2008 so that the elimination 
of the options market maker exception becomes permanent when the 
September Emergency Order expires. In addition, we believe that the 
amendments should become effective on October 17, 2008 so that fails to 
deliver resulting from short sales in both the equity and options 
markets receive similar treatment under the close-out requirements of 
Regulation SHO, and to further reduce fails to deliver and address 
potentially abusive ``naked'' short selling. Thus, the Commission finds 
good cause to make the amendments effective on October 17, 2008.

VI. Paperwork Reduction Act

    The amendments to Regulation SHO do not contain a ``collection of 
information'' requirement within the meaning of the Paperwork Reduction 
Act of 1995 (``PRA'').\106\
---------------------------------------------------------------------------

    \106\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

VII. Consideration of Costs and Benefits of Proposed Amendments to 
Regulation SHO

    We are sensitive to the costs and benefits of our rules and we have

[[Page 61700]]

considered the costs and the benefits of the amendments to Regulation 
SHO. In order to assist us in evaluating the costs and benefits, in the 
Reproposal, we encouraged commenters to discuss any costs or benefits 
that the amendments might impose. In particular, we requested comment 
on the potential costs for any modifications to both computer systems 
and surveillance mechanisms and for information gathering, management, 
and recordkeeping systems or procedures, as well as any potential 
benefits resulting from the amendments for registrants, issuers, 
investors, brokers or dealers, other securities industry professionals, 
regulators, and other market participants. Commenters were encouraged 
to provide analysis and data to support their views on the costs and 
benefits associated with the amendments to Regulation SHO.

A. Benefits

    The amendments to Rule 203(b)(3) of Regulation SHO are intended to 
further reduce the number of persistent fails to deliver in threshold 
securities by eliminating the options market maker exception to 
Regulation SHO's close-out requirement. As a result of the amendments, 
all fails to deliver in a threshold security resulting from short sales 
by a registered options market maker effected to establish or maintain 
a hedge on options positions established before the security became a 
threshold security will, like all other fails to deliver in threshold 
securities, have to be closed out in accordance with Regulation SHO's 
close-out requirements.\107\
---------------------------------------------------------------------------

    \107\ See 17 CFR 242.203(b)(3); see also Interim Final Temporary 
Rule, supra notes 42 and 43 (amending Regulation SHO to strengthen 
the delivery requirements for sales of all equity securities).
---------------------------------------------------------------------------

    We are concerned that large and persistent fails to deliver are not 
being closed out due to the options market maker exception in 
Regulation SHO, and that these fails to deliver may have a negative 
effect on the market in these securities.\108\ For example, large and 
persistent fails to deliver may deprive shareholders of the benefits of 
ownership, such as voting and lending.\109\ In addition, where a seller 
of securities fails to deliver securities on trade settlement date, in 
effect the seller unilaterally converts a securities contract (which 
should settle within the standard 3-day settlement period) into an 
undated futures-type contract, to which the buyer may not have agreed, 
or that would have been priced differently.\110\ Moreover, sellers that 
fail to deliver securities on settlement date may enjoy fewer 
restrictions than if they were required to deliver the securities in a 
timely manner, and such sellers may attempt to use this additional 
freedom to engage in trading activities that deliberately depress the 
price of a security.\111\ In addition, by not borrowing securities and, 
therefore, not making delivery within the standard three-day settlement 
period, the seller avoids the costs of borrowing.
---------------------------------------------------------------------------

    \108\ See 2007 Regulation SHO Final Amendments, 72 FR at 45544; 
2006 Regulation SHO Proposed Amendments, 71 FR at 41712; Reproposal, 
72 FR at 45558-45559; ``Naked'' Short Selling Anti-Fraud Rule 
Proposing Release, 73 FR at 15378.
    \109\ See id.
    \110\ See id.
    \111\ See id.
---------------------------------------------------------------------------

    Thus, consistent with the Commission's investor protection mandate, 
the amendments will benefit investors by facilitating the receipt of 
shares so that more investors receive the benefits associated with 
share ownership, such as the use of the shares for voting and lending 
purposes. The amendments will also enhance investor confidence as they 
make investment decisions by providing investors with greater assurance 
that securities will be delivered as expected. An increase in investor 
confidence in the market should facilitate investment.
    The amendments will also benefit issuers. A high level of 
persistent fails to deliver in a security may be perceived by potential 
investors negatively and may affect their decision about making a 
capital commitment.\112\ For example, in response to the Reproposal, 
one commenter stated that it believes that the current options market 
maker exception ``harms investors and issuers, hinders the formation of 
capital, and is fatally flawed as written'' and that it should be 
eliminated.\113\ Some issuers may believe that they have endured 
unwarranted reputational damage due to investors' negative perceptions 
regarding a security having a large fail to deliver position and 
becoming a threshold security.\114\ Thus, issuers may believe the 
elimination of the options market maker exception will restore their 
good name. Some issuers may also believe that large and persistent 
fails to deliver indicate that they have been the target of potentially 
manipulative conduct as a result of ``naked'' short selling.\115\ Thus, 
elimination of the options market maker exception should decrease the 
possibility of artificial market influences and, therefore, should 
contribute to price efficiency.
---------------------------------------------------------------------------

    \112\ See, e.g., supra note 19 (citing to comment letters 
expressing concern regarding the impact of potential ``naked'' short 
selling on capital formation).
    \113\ See letter from NCANS.
    \114\ See, e.g., supra note 18; see also letter from Fairfax 
Financial (stating that the exception should be eliminated due to 
its ``detrimental impact on issuers and their shareholders and also 
because such exception is susceptible to significant abuse'').
    \115\ See, e.g., supra note 19 (citing to comment letters from 
issuers and investors discussing extended fails to deliver in 
connection with ``naked'' short selling).
---------------------------------------------------------------------------

B. Costs

    To comply with Regulation SHO when it became effective in January 
2005, market participants needed to modify their recordkeeping systems 
and surveillance mechanisms. In addition, market participants should 
have retained and trained the necessary personnel to ensure compliance 
with the rule. Thus, the infrastructure necessary to comply with the 
amendments should already be in place because the amendments will 
require that all fails to deliver be closed out in accordance with the 
close-out requirements of Regulation SHO.\116\ The only fails to 
deliver not subject to Regulation SHO's mandatory close-out 
requirements will be those fails to deliver that would be previously-
excepted from the close-out requirement and, therefore, eligible for 
the one-time 35 consecutive settlement day phase-in period of the 
amendments.\117\ Thus, we anticipate that any changes to personnel, 
computer hardware and software, recordkeeping or surveillance costs 
will be minimal.
---------------------------------------------------------------------------

    \116\ See 17 CFR 242.203(b)(3); see also Interim Final Temporary 
Rule, supra notes 42 and 43 (amending Regulation SHO to strengthen 
the delivery requirements for sales of all equity securities).
    \117\ See Adopted Rule 203(b)(3)(iii).
---------------------------------------------------------------------------

    In the Reproposal, we requested comment regarding the costs of the 
proposed amendments to the options market maker exception and how those 
costs would affect liquidity in the options markets. As discussed 
above, commenters opposing the proposed amendments criticized the 
impact of the proposals on options market making risk, quote depths, 
spread widths, and market liquidity, particularly in threshold 
securities and securities that might become threshold securities. These 
commenters stated that the current exception is integral to the options 
market maker's ability to make markets and manage risk and that, 
without the exception, making continuous markets would be very 
difficult, particularly in longer-dated options.\118\ One commenter 
suggested that ``withdrawing or greatly reducing the exception would 
cause varying losses of liquidity in over 20% of listed

[[Page 61701]]

options and their underlying stocks.'' \119\ Another commenter stated 
that ``[i]f the exception is eliminated or narrowed in the manner 
proposed, [it] anticipates [options market makers] would be reluctant 
or even unable to effectively make markets on securities if they cannot 
be certain of their ability to establish and maintain an effective 
hedge and manage their risk through selling stock.'' \120\ Another 
commented that ``[t]he uncertainty, time, processing and expense 
necessary to pre-borrow when effecting a short sale, as well as the 
uncertainty and expense caused by a close out of a hedge, will by its 
nature adversely affect the [options market makers'] pricing of the 
option.'' \121\ However, one commenter noted that ``options market 
makers should factor the cost of borrowing stock and selling short into 
the price of the put options being sold.'' \122\ Another commenter 
noted that ``[o]ptions market makers should have to pay to borrow stock 
like everyone else does. Most options market makers are excellent risk 
managers, and they can manage the risk that stock borrowing costs can 
fluctuate. Any additional costs involved will rightfully be passed to 
those who trade options.'' \123\
---------------------------------------------------------------------------

    \118\ See letter from CBOE.
    \119\ See letter from Susquehanna.
    \120\ See id.; see also letter from Options Exchanges; 
Citigroup.
    \121\ See letter from Citigroup.
    \122\ See letter from Fairfax Financial.
    \123\ See letter from Angel.
---------------------------------------------------------------------------

    Although we recognize commenters' concerns that a mandatory close-
out requirement for fails to deliver in threshold securities underlying 
options positions, for the reasons outlined below, we believe these 
potential effects are justified by the benefits of requiring that fails 
to deliver in all threshold securities be closed out within specific 
time-frames rather than being allowed to continue indefinitely. In 
addition, we believe the overall market impact of these potential 
effects, if any, will be minimal.
    First, as discussed above, large and persistent fails to deliver 
can deprive shareholders of the benefits of ownership, such as voting 
and lending. They can also be indicative of potentially manipulative 
conduct, such as abusive ``naked'' short selling. The deprivation of 
the benefits of ownership, as well as the perception that abusive 
``naked'' short selling is occurring in certain securities, can 
undermine the confidence of investors. These investors, in turn, may be 
reluctant to commit capital to an issuer they believe to be subject to 
manipulative conduct.
    In the Reproposal, we sought comment on whether the proposed 
amendments would promote capital formation, including whether the 
proposed increased short sale restrictions would affect investors' 
decisions to invest in certain equity securities. Commenters expressed 
concern about ``naked'' short selling causing a drop in an issuer's 
stock price and that it may limit an issuer's ability to access the 
capital markets.\124\ We believe that, by requiring that all fails to 
deliver in threshold securities be closed out within specific time-
frames rather than allowing them to continue indefinitely, there will 
be a decrease in the number of threshold securities with persistent and 
high levels of fails to deliver. If persistence on the threshold 
securities lists leads to an unwarranted decline in investor confidence 
about the security, the amendments should improve investor confidence 
about the security.\125\ We also believe that the reduction in fails to 
deliver and the resulting reduction in the number of securities on the 
threshold securities lists should strengthen investor confidence and 
increase certainty in the settlement process.
---------------------------------------------------------------------------

    \124\ See supra note 19.
    \125\ See letter from Overstock.
---------------------------------------------------------------------------

    Thus, by eliminating the options market maker exception so that all 
fails to deliver in threshold securities that result from short sales 
effected to maintain or establish a hedge on options positions will 
have to be closed out in accordance with Regulation SHO's close-out 
requirements,\126\ we expect a reduction in the number of threshold 
securities with large and persistent fails to deliver and, thereby, 
offsetting any potential negative impact of such fails to deliver on 
the market for these securities.
---------------------------------------------------------------------------

    \126\ See 17 CFR 242.203(b)(3); see also Interim Final Temporary 
Rule, supra notes 42 and 43 (amending Regulation SHO to strengthen 
the delivery requirements for sales of all equity securities).
---------------------------------------------------------------------------

    Second, while we recognize commenters' concerns that on a security-
by-security basis the impact on options market maker costs, liquidity, 
quote depths, and spread widths may vary considerably, and in some 
cases, might be large,\127\ we believe the overall market impact of the 
amendments will be minimal because the number of securities that will 
be impacted by the amendments will be relatively small. As previously 
noted by one commenter, a small number of securities that meet the 
definition of a ``threshold security'' have listed options, and those 
securities form a very small percentage of all securities that have 
options traded on them.\128\ In addition, OEA estimates that in July 
2008, 451 (13.6%) of the 3,326 securities with options classes trading 
on at least one options market appeared on a threshold securities list 
for at least one day that month. Even though these securities may form 
a small percentage of all securities that have options traded on them, 
we are still concerned that these fails to deliver can have a 
disproportionate impact on the markets and shareholders.
---------------------------------------------------------------------------

    \127\ See, e.g., letter from Options Exchanges.
    \128\ See supra note 85.
---------------------------------------------------------------------------

    Moreover, the options market maker exception only excepted from 
Regulation SHO's mandatory 13 consecutive settlement day close-out 
requirement only those fail to deliver positions that resulted from 
short sales effected by registered options market makers to establish 
or maintain a hedge on options positions established before the 
underlying security became a threshold security. Thus, it does not 
apply to fails to deliver resulting from short sales effected to 
establish or maintain a hedge on options positions established after 
the underlying security became a threshold security. Because the 
options market maker exception has a very limited application, we 
anticipate that the overall impact of its removal on liquidity, hedging 
costs, spreads, and depth should be relatively small. Nevertheless, we 
understand commenters' concerns that on a security-by-security basis 
the impact on options market maker costs might, in some cases, be 
large. However, on balance, we believe such costs are justified by the 
benefits that are expected to result from requiring that all fails to 
deliver in threshold securities be closed out within specific time-
frames rather than being allowed to continue indefinitely.
    Third, some commenters noted concerns about having to close out 
fails to deliver in connection with the hedging of longer-term options 
because such fails may have been open for months or years.\129\ These 
commenters suggested that with respect to such fails to deliver, the 
close-out requirement be tied to the expiration or liquidation of such 
options. However, this would mean that these fails to deliver could 
persist for months or years. We believe that all fails to deliver in 
threshold securities must be closed out in a timely manner. Longer-term 
options can have expiration periods that extend for years. To tie the 
close out of a fail to deliver position resulting from a hedge of such 
options to the liquidation or expiration

[[Page 61702]]

of such options would undermine this goal. As discussed above, large 
and persistent fails to deliver can deprive shareholders of the 
benefits of ownership, such as voting and lending. We also believe that 
all sellers of securities should promptly deliver, or arrange for 
delivery of, securities to the respective buyer and all buyers of 
securities have a right to expect prompt delivery of securities 
purchased.
---------------------------------------------------------------------------

    \129\ See, e.g., letter from CBOE; Options Exchanges; Citigroup.
---------------------------------------------------------------------------

    In addition, the 35 consecutive settlement day phase-in period of 
the amendments allows participants sufficient time to close out any 
previously excepted fail to deliver positions that may have been open 
for month or years as a result of hedging activity in connection with 
longer-term options. The phase-in period limits the disruption to the 
market and helps foster market stability because it provides 
participants with a sufficient length of time to close out these 
positions in an orderly manner.
    Fourth, the potential impact of the amendments on options market 
making risk, quote depths, spread widths, and market liquidity will be 
limited because, as noted above, Regulation SHO's options market maker 
exception applied only to those fail to deliver positions that resulted 
from short sales effected by registered options market makers to 
establish or maintain a hedge on options positions established before 
the underlying security became a threshold security. Thus, it does not 
apply to fails to deliver resulting from short sales effected to 
establish or maintain a hedge on options positions established after 
the underlying security became a threshold security. Some commenters 
stated that they believe there has been harm to the markets under the 
current close out structure of Regulation SHO.\130\ As we noted in the 
Reproposal, however, in examining the application of the mandatory 
close-out requirement of Rule 203(b)(3) of Regulation SHO for all non-
excepted fail to deliver positions, it does not appear that Rule 
203(b)(3)'s close-out requirement for non-excepted fails to deliver in 
threshold securities has impacted options market makers' willingness to 
provide liquidity in threshold securities or securities likely to 
become threshold securities, or substantially impacted option market 
maker risk, quote depths, or spread widths.
---------------------------------------------------------------------------

    \130\ See, e.g., letter from CBOE; see also letter from 
Overstock.
---------------------------------------------------------------------------

    We also note that option market makers may only need to hedge via a 
short sale in the equity markets for a small fraction of their total 
trading activity. Academic research suggests that non-market maker 
option open interest tends to heavily favor the upside, which implies 
that the customary hedge for the typical option market making position 
is a long equity position rather than a short equity position.\131\ 
More recent data from January to July 2008 also suggests an upside bias 
in option open interest.\132\
---------------------------------------------------------------------------

    \131\ See supra note 88.
    \132\ See supra note 89.
---------------------------------------------------------------------------

    Fifth, while commenters may believe that a mandatory close-out 
requirement for all fails to deliver resulting from hedging activity in 
the options markets may potentially impact liquidity, hedging costs, 
depth, or spreads, or impact the willingness of options market makers 
to make markets in certain securities, we believe that such potential 
effects are justified by our belief that fails to deliver resulting 
from hedging activities by options market makers should be treated 
similarly to fails to deliver resulting from sales in the equities 
markets so that market participants trading threshold securities in the 
options markets do not receive an advantage over those trading such 
securities in the equities markets.
    As discussed above, commenters who opposed elimination of the 
exception argued that options market makers, unlike equity market 
makers, should have an exception to Regulation SHO's close-out 
requirement because there are distinct differences between options 
market making and market making in the underlying stock. We do not 
believe that for purposes of the close-out requirement of Regulation 
SHO, options and equity market makers should be treated differently. 
Due to our concerns about the potentially negative market impact of 
large and persistent fails to deliver, and the fact that we continue to 
observe a small number of threshold securities with fail to deliver 
positions that are not being closed out under existing delivery and 
settlement requirements, we adopted amendments to eliminate Regulation 
SHO's ``grandfather'' provision that allowed fails to deliver resulting 
from long or short sales of equity securities to persist indefinitely 
if the fails to deliver occurred prior to the security becoming a 
threshold security.\133\ We believe that once a security becomes a 
threshold security, fails to deliver in that security must be closed 
out, regardless of whether or not the fails to deliver resulted from 
sales of the security in connection with the options or equities 
markets.
---------------------------------------------------------------------------

    \133\ See 2007 Regulation SHO Final Amendments, 72 FR 45544; see 
also 2006 Regulation SHO Proposed Amendments, 71 FR 41710.
---------------------------------------------------------------------------

    Moreover, we are concerned that the options market maker exception 
might have allowed for a regulatory arbitrage not permitted in the 
equities markets.\134\ For example, an options market maker who sells 
short to hedge put options purchased by a market participant unable to 
locate shares for a short sale in accordance with Rule 203(b)(2) of 
Regulation SHO may not have to close out any fails to deliver that 
result from such short sales under the options market maker exception. 
The ability of options market makers to sell short and never have to 
close out a resulting fail to deliver position, provided the short sale 
was effected to hedge options positions created before the security 
became a threshold security, runs counter to the goal of requiring that 
all fails to deliver in threshold securities be closed out.
---------------------------------------------------------------------------

    \134\ Reproposal, 72 FR at 45563.
---------------------------------------------------------------------------

    Also, the pre-borrow requirement of Adopted Rule 203(b)(3)(v) for 
fail to deliver positions that are not closed out within the applicable 
time-frame set forth in the amendments will result in limited, if any, 
costs to participants of a registered clearing agency, and options 
market makers for which they clear transactions.\135\ The pre-borrow 
requirement is similar to the pre-borrow requirement of Rule 
203(b)(3)(iv) of Regulation SHO relating to fails to deliver that have 
not been closed out in accordance with the 13 consecutive settlement 
day close-out requirement of Regulation SHO.\136\ Thus, participants of 
a registered clearing agency, and any options market maker for which it 
clears transactions, must already comply with such a requirement if a 
fail to deliver position has not been closed out in accordance with 
Regulation SHO's mandatory close-out requirement. Accordingly, these 
entities should already have in place the personnel, recordkeeping, 
systems, and surveillance mechanisms necessary to comply with the 
adopted pre-borrow requirement. While the pre-borrow requirement may be 
costly in each instance it is used, pre-borrowing is not necessary if a 
close-out is completed on time and, therefore, may be used only rarely.
---------------------------------------------------------------------------

    \135\ See Adopted Rule 203(b)(3)(v).
    \136\ See 17 CFR 242.203(b)(3)(iv).
---------------------------------------------------------------------------

VIII. Consideration of Burden and Promotion of Efficiency, Competition, 
and Capital Formation

    Section 3(f) of the Exchange Act requires the Commission, whenever 
it engages in rulemaking and is required to

[[Page 61703]]

consider or determine whether an action is necessary or appropriate in 
the public interest, to consider whether the action would promote 
efficiency, competition, and capital formation.\137\ In addition, 
Section 23(a)(2) of the Exchange Act requires the Commission, when 
making rules under the Exchange Act, to consider the impact such rules 
would have on competition.\138\ Exchange Act Section 23(a)(2) prohibits 
the Commission from adopting any rule that would impose a burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Exchange Act.
---------------------------------------------------------------------------

    \137\ 15 U.S.C. 78c(f).
    \138\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

    We believe the amendments will have minimal impact on the promotion 
of price efficiency. In the Reproposal, we sought comment on whether 
the amendments would promote price efficiency. Commenters expressed 
concern that failures to deliver due to the options market maker 
exception harm pricing efficiency in the equity markets.\139\ Other 
commenters stated that the proposed amendments to the options market 
maker exception would disrupt the markets because they would not 
provide sufficient flexibility to permit efficient hedging by options 
market makers, would unnecessarily increase risks and costs to hedge, 
and would adversely impact liquidity and result in higher costs to 
customers.\140\ These commenters stated that they believe the proposed 
amendments would likely discourage options market makers from making 
markets in illiquid securities since the risk associated in maintaining 
the hedges in these option positions would be too great.\141\ Moreover, 
these commenters stated that the reluctance of options market makers to 
make markets in threshold securities would result in wider spreads in 
such securities to account for the increased costs of hedging, to the 
detriment of investors.\142\
---------------------------------------------------------------------------

    \139\ See, e.g., letter from Overstock.
    \140\ See, e.g., letter from Options Exchanges.
    \141\ See id.
    \142\ See letter from Citigroup.
---------------------------------------------------------------------------

    We recognize commenters' concerns that a mandatory close-out 
requirement for fails to deliver in threshold securities underlying 
options positions may potentially impact options market makers' 
willingness to provide liquidity in threshold securities, make it more 
costly for options market makers to accommodate customer orders, or 
result in wider bid-ask spreads or less depth.\143\ For the reasons 
discussed below, however, we believe that the overall impact of these 
potential effects, if any, will be minimal.
---------------------------------------------------------------------------

    \143\ See, e.g., letter from CBOE.
---------------------------------------------------------------------------

    We believe that the overall market impact of the amendments will be 
minimal because the number of securities that will be impacted by the 
amendments will be relatively small. The amendments apply only to those 
threshold securities with listed options. As previously noted by one 
commenter, a small number of securities that meet Regulation SHO's 
definition of a ``threshold security'' have listed options, and those 
securities form a very small percentage of all securities that have 
options traded on them.\144\ In addition, the amendments will only 
impact fails to deliver in those securities that resulted from short 
sales by registered options market makers to hedge options positions 
that were created before, rather than after, the security became a 
threshold security because all other fails to deliver in threshold 
securities are already subject to Regulation SHO's close-out 
requirements.\145\
---------------------------------------------------------------------------

    \144\ See supra note 85.
    \145\ See 17 CFR 242.203(b)(3); see also Interim Final Temporary 
Rule, supra notes 42 and 43 (amending Regulation SHO to strengthen 
the delivery requirements for sales of all equity securities).
---------------------------------------------------------------------------

    Because the options market maker exception has a very limited 
application, we anticipate that the overall impact of its removal on 
liquidity, hedging costs, spreads, and depth will be relatively small. 
Nevertheless, we understand commenters' concerns that on a security-by-
security basis the impact on options market maker costs might, in some 
cases, be large. However, on balance, we believe such costs are 
justified by the benefits that are expected to result from requiring 
that all fails to deliver in threshold securities be closed out within 
specific time-frames rather than being allowed to continue 
indefinitely.
    We also note that option market makers may only need to hedge via a 
short sale in the equity markets for a small fraction of their total 
trading activity. Academic research suggests that non-market maker 
option open interest tends to heavily favor the upside, which implies 
that the customary hedge for the typical option market making position 
is a long equity position rather than a short equity position.\146\ 
More recent data from January to July 2008 also suggests an upside bias 
in option open interest.\147\
---------------------------------------------------------------------------

    \146\ See supra note 88.
    \147\ See supra note 89.
---------------------------------------------------------------------------

    In addition, the 35 consecutive settlement day phase-in period of 
the amendments allows participants sufficient time to close out any 
previously excepted fail to deliver positions that may have been open 
for months or years as a result of hedging activity in connection with 
longer-term options. The phase-in period limits the disruption to the 
market, and helps foster market stability by providing participants 
with a sufficient length of time to close out these positions in an 
orderly manner. Some of the commenters to the Reproposal also noted 
that 13 consecutive settlement days was more than sufficient to close 
out a fail to deliver relating to an options position.\148\
---------------------------------------------------------------------------

    \148\ See, e.g., letter from U.S. Chamber of Commerce.
---------------------------------------------------------------------------

    While commenters may believe that a mandatory close-out requirement 
may potentially impact liquidity, hedging costs, depth, or spreads, or 
impact the willingness of options market makers to make markets in 
securities subject to such a requirement, we believe such potential 
effects are justified by our belief that fails to deliver resulting 
from hedging activities by options market makers should be treated 
similarly to fails to deliver resulting from sales in the equities 
markets so that market participants trading threshold securities in the 
options markets do not receive an advantage over those trading such 
securities in the equities markets. In addition, we believe that such 
potential costs are justified by the benefits of requiring that all 
fails to deliver be closed out rather than being allowed to continue 
indefinitely.
    We also believe that the amendments will have minimal impact on the 
promotion of capital formation. Large and persistent fails to deliver 
can deprive shareholders of the benefits of ownership, such as voting 
and lending. They can also be indicative of potentially manipulative 
conduct, such as abusive ``naked'' short selling. The deprivation of 
the benefits of ownership, as well as the perception that abusive 
``naked'' short selling is occurring in certain securities, can 
undermine the confidence of investors. These investors, in turn, may be 
reluctant to commit capital to an issuer they believe to be subject to 
such manipulative conduct.
    In the Reproposal, we sought comment on whether the proposed 
amendments would promote capital formation, including whether the 
proposed increased short sale restrictions would affect investors' 
decisions to invest in certain equity securities. Commenters expressed 
concern about the potential impact of

[[Page 61704]]

``naked'' short selling on capital formation claiming that ``naked'' 
short selling causes a drop in an issuer's stock price that may limit 
the issuer's ability to access the capital markets.\149\ Another 
commented that the options market maker exception ``is a well known 
tool of manipulators and must be removed to ensure a level playing 
field for public companies and their shareholders.'' \150\ In addition, 
one commenter stated that it believes that the current options market 
maker exception ``harms investors and issuers, hinders the formation of 
capital, and is fatally flawed as written'' and that it should be 
eliminated.\151\
---------------------------------------------------------------------------

    \149\ See, e.g., supra note 19 (citing to comment letters 
expressing concern regarding the impact of potential ``naked'' short 
selling on capital formation).
    \150\ See letter from USANA; see also letter from Fairfax 
Financial (stating that the exception should be eliminated due to 
its ``detrimental impact on issuers and their shareholders and also 
because such exception is susceptible to significant abuse'').
    \151\ See letter from NCANS.
---------------------------------------------------------------------------

    By requiring that all fails to deliver in threshold securities be 
closed out rather than allowing them to continue indefinitely, we 
believe that there will be a decrease in the number of threshold 
securities with persistent and high levels of fails to deliver. If 
persistence on the threshold securities lists leads to an unwarranted 
decline in investor confidence about the security, the amendments 
should improve investor confidence about the security. We also believe 
that the amendments will lead to greater certainty in the settlement of 
securities which should strengthen investor confidence in the 
settlement process. The reduction in fails to deliver and the resulting 
reduction in the number of securities on the threshold securities lists 
may result in increased investor confidence.
    The amendments to eliminate the options market maker exception will 
also not impose any burden on competition not necessary or appropriate 
in furtherance of the purposes of the Exchange Act. By eliminating the 
options market maker exception, the Commission believes the amendments 
will promote competition by requiring similarly situated participants 
of a registered clearing agency, including broker-dealers for which 
they clear transactions, to close out fails to deliver in all threshold 
securities within similar time-frames.\152\ One commenter, in 
particular, noted that the options market maker exception ``is a well 
known tool of manipulators and must be removed to ensure a level 
playing field for public companies and their shareholders.'' \153\
---------------------------------------------------------------------------

    \152\ Academic research suggests that the ability for all option 
market makers to fail when hedging actually creates a competitive 
advantage for large option market makers over small option market 
makers. See, e.g., Evans, Richard B., Reed, Adam V., Geczy, 
Christopher Charles and Musto, David K. ``Failure is an Option: 
Impediments to Short Selling and Options Prices,'' Rev. Financ. 
Stud. (January 2008). The elimination of the options market maker 
exception, therefore, will remove this competitive advantage.
    \153\ See letter from USANA; see also letter from Fairfax 
Financial (stating that the exception should be eliminated due to 
its ``detrimental impact on issuers and their shareholders and also 
because such exception is susceptible to significant abuse'').
---------------------------------------------------------------------------

    As discussed above, commenters who opposed elimination of the 
exception argued that options market makers, unlike equity market 
makers, should have an exception to Regulation SHO's close-out 
requirement because there are distinct differences between options 
market making and market making in the underlying stock. We do not 
believe that for purposes of the close-out requirement of Regulation 
SHO, options and equity market makers should be treated differently. 
Due to our concerns about the potentially negative market impact of 
large and persistent fails to deliver, and the fact that we continue to 
observe a small number of threshold securities with fail to deliver 
positions that are not being closed out under existing delivery and 
settlement requirements, we adopted amendments to eliminate Regulation 
SHO's ``grandfather'' provision that allowed fails to deliver resulting 
from long or short sales of equity securities to persist indefinitely 
if the fails to deliver occurred prior to the security becoming a 
threshold security.\154\ We believe that once a security becomes a 
threshold security, fails to deliver in that security must be closed 
out, regardless of whether or not the fails to deliver resulted from 
sales of the security in connection with the options or equities 
markets.
---------------------------------------------------------------------------

    \154\ See 2007 Regulation SHO Final Amendments, 72 FR 45544; see 
also 2006 Regulation SHO Proposed Amendments, 71 FR 41710.
---------------------------------------------------------------------------

    Moreover, we are concerned that the options market maker exception 
might allow for a regulatory arbitrage not permitted in the equities 
markets.\155\ For example, an options market maker who sells short to 
hedge put options purchased by a market participant unable to locate 
shares for a short sale in accordance with Rule 203(b)(2) of Regulation 
SHO may not have to close out any fails to deliver that result from 
such short sales under the options market maker exception. The ability 
of options market makers to sell short and never have to close out a 
resulting fail to deliver position, provided the short sale was 
effected to hedge options positions created before the security became 
a threshold security, runs counter to the goal of requiring that all 
fails to deliver in threshold securities be closed out.
---------------------------------------------------------------------------

    \155\ See Reproposal, 72 FR at 45563.
---------------------------------------------------------------------------

IX. Final Regulatory Flexibility Analysis

    The Commission has prepared a Final Regulatory Flexibility Analysis 
(``FRFA''), in accordance with the provisions of the Regulatory 
Flexibility Act (``RFA''),\156\ regarding the amendments to Regulation 
SHO, Rule 203, under the Exchange Act. An Initial Regulatory 
Flexibility Analysis (``IRFA'') was prepared in accordance with the RFA 
and was included in the Reproposal. We solicited comments on the IRFA.
---------------------------------------------------------------------------

    \156\ 5 U.S.C. 604.
---------------------------------------------------------------------------

A. Reasons for and Objectives of the Amendments

    The amendments to Rule 203(b)(3) of Regulation SHO are intended to 
further reduce the number of persistent fails to deliver in threshold 
securities by eliminating the options market maker exception to 
Regulation SHO's close-out requirement. As a result of the amendments, 
all fails to deliver in a threshold security resulting from short sales 
by a registered options market maker effected to establish or maintain 
a hedge on options positions established before the security became a 
threshold security will, like all other fails to deliver in threshold 
securities, have to be closed out in accordance with the close-out 
requirements of Regulation SHO.\157\
---------------------------------------------------------------------------

    \157\ See 17 CFR 242.203(b)(3); see also Interim Final Temporary 
Rule, supra notes 42 and 43 (amending Regulation SHO to strengthen 
the delivery requirements for sales of all equity securities).
---------------------------------------------------------------------------

    We are concerned that persistent, large fail positions may have a 
negative effect on the market in these securities. For example, 
although high fails levels exist only for a small percentage of 
issuers, they may impede the orderly functioning of the market for such 
issuers, particularly issuers of less liquid securities. A significant 
level of fails to deliver in a security may have adverse consequences 
for shareholders who may be relying on delivery of those shares for 
voting and lending purposes, or may otherwise affect an investor's 
decision to invest in that particular security. In addition, a seller 
that fails to deliver securities on trade settlement date effectively 
unilaterally converts a securities contract into an undated futures-
type contract, to which the buyer might not have agreed, or that would 
have been priced differently.

[[Page 61705]]

Moreover, sellers that fail to deliver securities on settlement date 
may enjoy fewer restrictions than if they were required to deliver the 
securities in a timely manner, and such sellers may attempt to use this 
additional freedom to engage in trading activities that deliberately 
depress the price of a security.

B. Significant Issues Raised by Public Comment

    The IRFA appeared in the Reproposal. We requested comment on any 
aspect of the IRFA. In particular, we requested comment on: (i) The 
number of small entities that would be affected by the amendment; and 
(ii) the existence or nature of the potential impact of the amendments 
on small entities. We requested that the comments specify costs of 
compliance with the amendment, and suggest alternatives that would 
accomplish the objectives of the amendment. We did not receive any 
comments that responded specifically to this request.

C. Small Entities Subject to the Amendment

    The entities covered by the amendments will include small entities 
that are participants of a registered clearing agency, including small 
registered options market makers for which the participant clears 
trades or for which it is responsible for settlement. In addition, the 
entities covered by these amendments will include small entities that 
are market participants that effect sales subject to the requirements 
of Regulation SHO. Most small entities subject to the amendments will 
be registered broker-dealers. Paragraph (c)(1) of Rule 0-10 \158\ 
states that the term ``small business'' or ``small organization,'' when 
referring to a broker-dealer, means a broker or dealer that 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 Sec.  240.17a-5(d); and is not 
affiliated with any person (other than a natural person) that is not a 
small business or small organization. As of 2007, the Commission 
estimates that there were approximately 896 registered broker-dealers 
that qualified as small entities as defined above.\159\
---------------------------------------------------------------------------

    \158\ 17 CFR 240.0-10(c)(1).
    \159\ These numbers are based on OEA's review of 2007 FOCUS 
Report filings reflecting registered broker-dealers. This number 
does not include broker-dealers that are delinquent on FOCUS Report 
filings.
---------------------------------------------------------------------------

    As noted above, the entities covered by the amendments will include 
small entities that are participants of a registered clearing agency. 
As of July 31, 2008, approximately 91% of participants of the NSCC, the 
primary registered clearing agency responsible for clearing U.S. 
transactions, were registered as broker-dealers. Participants not 
registered as broker-dealers include such entities as banks, U.S.-
registered exchanges, and clearing agencies. Although these entities 
are participants of a registered clearing agency, generally these 
entities do not engage in the types of activities that would implicate 
the close-out requirements of Regulation SHO. Such activities of these 
entities include creating and redeeming Exchange Traded Funds, trading 
in municipal securities, and using NSCC's Envelope Settlement Service 
or Inter-city Envelope Settlement Service. These activities rarely lead 
to fails to deliver and, if fails to deliver do occur, they are small 
in number and are usually cleaned up within a day. Thus, such fails to 
deliver would not trigger the close-out provisions of Regulation SHO.
    The federal securities laws do not define what is a ``small 
business'' or ``small organization'' when referring to a bank. The 
Small Business Administration regulations define ``small entities'' to 
include banks and savings associations with total assets of $165 
million or less.\160\ As of July 31, 2008, no bank that was a 
participant of the NSCC was a small entity because none met these 
criteria.
---------------------------------------------------------------------------

    \160\ See 13 CFR 121.201.
---------------------------------------------------------------------------

    Paragraph (e) of Rule 0-10 under the Exchange Act \161\ states that 
the term ``small business'' or ``small organization,'' when referring 
to an exchange, means any exchange that: (1) Has been exempted from the 
reporting requirements of Rule 11Aa3-1 under the Exchange Act; and (2) 
is not affiliated with any person (other than a natural person) that is 
not a small business or small organization, as defined by Rule 0-10. No 
U.S. registered exchange is a small entity because none meets these 
criteria.
---------------------------------------------------------------------------

    \161\ 17 CFR 240.0-10(e).
---------------------------------------------------------------------------

    Paragraph (d) of Rule 0-10 under the Exchange Act \162\ states that 
the term ``small business'' or ``small organization,'' when referring 
to a clearing agency, means a clearing agency that: (1) Compared, 
cleared and settled less than $500 million in securities transactions 
during the preceding fiscal year (or in the time that it has been in 
business, if shorter); (2) had less than $200 million in funds and 
securities in its custody or control at all times during the preceding 
fiscal year (or in the time that it has been in business, if shorter); 
and (3) is not affiliated with any person (other than a natural person) 
that is not a small business or small organization as defined by Rule 
0-10. No clearing agency that is subject to the requirements of 
Regulation SHO is a small entity because none meets these criteria.
---------------------------------------------------------------------------

    \162\ 17 CFR 240.0-10(d).
---------------------------------------------------------------------------

D. Reporting, Recordkeeping, and Other Compliance Requirements

    The amendments to eliminate the options market maker exception to 
Regulation SHO's close-out requirement will impose minimal new or 
additional reporting, recordkeeping, or compliance costs on broker-
dealers that are small entities. In order to comply with Regulation SHO 
when it became effective in January, 2005, entities needed to modify 
their systems and surveillance mechanisms. Thus, the infrastructure 
necessary to comply with the amendments to eliminate the options market 
maker exception should already be in place. Any additional changes to 
the infrastructure should be minimal. In addition, entities that will 
be subject to the mandatory close-out requirement of Rule 203(b)(3) of 
Regulation SHO should already have systems in place to close out non-
excepted fails to deliver as required by Regulation SHO.

E. Agency Action To Minimize Effect on Small Entities

    The RFA directs the Commission to consider significant alternatives 
that would accomplish the stated objectives, while minimizing any 
significant adverse impact on small entities. In connection with the 
amendments, the Commission considered the following types of 
alternatives: (a) Establishment of differing compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities; (b) clarification, consolidation, or 
simplification of compliance and reporting requirements under the 
amendments for small entities; (c) use of performance rather than 
design standards; and (d) an exemption from coverage of the amendment, 
or any part thereof, for small entities.
    A primary goal of the amendments is to reduce the number of 
persistent fails to deliver in threshold securities. As such, we 
believe that imposing different compliance requirements, and possibly a 
different timetable for implementing compliance requirements, for small 
entities would undermine the goal of reducing fails to deliver. In 
addition, the rule amendment is already quite simple, so we do not 
believe it necessary to

[[Page 61706]]

further clarify, consolidate or simplify the amendments for small 
entities. The Commission also believes that using performance standards 
to specify different requirements for small entities or exempting small 
entities from having to comply with the amendment would not accomplish 
the regulatory goal of adopting a consistent approach to persistent 
fails to deliver.

X. Statutory Authority

    Pursuant to the Exchange Act and, particularly, Sections 2, 3(b), 
9(h), 10, 11A, 15, 17(a), 17A, and 23(a) thereof, 15 U.S.C. 78b, 
78c(b), 78i(h), 78j, 78k-1, 78o, 78q(a), 78q-1, 78w(a), the Commission 
is adopting an amendment to Sec.  242.203.

List of Subjects

17 CFR Part 241

    Securities.

17 CFR Part 242

    Brokers, Fraud, Reporting and recordkeeping requirements, 
Securities.

Text of the Amendments to Regulation SHO

0
For the reasons set out in the preamble, Title 17, Chapter II, of the 
Code of Federal Regulations is amended as follows.

PART 241--INTERPRETATIVE RELEASES RELATING TO THE SECURITIES 
EXCHANGE ACT OF 1934 AND GENERAL RULES AND REGULATIONS THEREUNDER

0
1. Part 241 is amended by adding Release No. 34-58775 and the release 
date of October 14, 2008 to the list of interpretative releases.

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

0
2. The authority citation for part 242 continues to read as follows:

    Authority: 15 U.S.C. 77g, 77q(a), 77s(a), 78b, 78c, 78g(c)(2), 
78i(a), 78j, 78k-1(c), 78l, 78m, 78n, 78o(b), 78o(c), 78o(g), 
78q(a), 78q(b), 78q(h), 78w(a), 78dd-1, 78mm, 80a-23, 80a-29, and 
80a-37.
* * * * *
0
3. Section 242.203 is amended by:
0
a. Revising paragraph (b)(3)(iii) and paragraph (b)(3)(v) to read as 
follows:


Sec.  242.203  Borrowing and delivery requirements.

* * * * *
    (b) * * *
    (3) * * *
    (iii) Provided, however, that a participant of a registered 
clearing agency that has a fail to deliver position at a registered 
clearing agency in a threshold security on the effective date of this 
amendment and which, prior to the effective date of this amendment, had 
been previously excepted from the close-out requirement in paragraph 
(b)(3) of this section (i.e., because the participant of a registered 
clearing agency had a fail to deliver position in the threshold 
security that is attributed to short sales effected by a registered 
options market maker to establish or maintain a hedge on options 
positions that were created before the security became a threshold 
security), shall immediately close out that fail to deliver position, 
including any adjustments to the fail to deliver position, within 35 
consecutive settlement days of the effective date of this amendment by 
purchasing securities of like kind and quantity;
* * * * *
    (v) If a participant of a registered clearing agency entitled to 
rely on the 35 consecutive settlement day close-out requirement 
contained in paragraph (b)(3)(i), (b)(3)(ii), or (b)(3)(iii) of this 
section has a fail to deliver position at a registered clearing agency 
in the threshold security for 35 consecutive settlement days, the 
participant and any broker or dealer for which it clears transactions, 
including any market maker, that would otherwise be entitled to rely on 
the exception provided in paragraph (b)(2)(ii) of this section, may not 
accept a short sale order in the threshold security from another 
person, or effect a short sale in the threshold security for its own 
account, without borrowing the security or entering into a bona fide 
arrangement to borrow the security, until the participant closes out 
the fail to deliver position by purchasing securities of like kind and 
quantity;

    By the Commission.

    Dated: October 14, 2008.
Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-24742 Filed 10-16-08; 8:45 am]
BILLING CODE 8011-01-P