Regulation SHO:
Recent Actions Appear to Have Initially Reduced Failures to Deliver, but More Industry Guidance Is Needed
GAO-09-483: Published: May 12, 2009. Publicly Released: Jun 3, 2009.
Additional Materials:
- Highlights Page:
- Full Report:
- Accessible Text:
Contact:
(202) 512-5837
contact@gao.gov
Office of Public Affairs
(202) 512-4800
youngc1@gao.gov
The Securities and Exchange Commission (SEC) adopted Regulation SHO to, among other things, curb the potential for manipulative naked short selling in equity securities. Selling a security short without borrowing the securities needed to settle the trade within the standard 3-day period, can result in failures to deliver (FTD), and can be used to manipulate (drive down) the price of a security. To further address this concern, SEC recently issued an order amending Regulation SHO. This report (1) provides an overview of Regulation SHO and related SEC actions, (2) discusses regulators' and market participants' views on the effectiveness of the rule, and (3) analyzes regulators' efforts to enforce the rule. To address these objectives, GAO reviewed SEC rules and draft industry guidance, analyzed FTD data, reviewed SEC and self-regulatory organization (SRO) examinations, and interviewed SEC and SRO officials and market participants.
To address FTD and curb the potential for manipulative naked short selling in equity securities, Regulation SHO required broker-dealers to (1) locate securities available for borrowing before effecting short sales in that security and (2) close out FTD lasting ten consecutive settlement days in securities for which a substantial number of FTD accumulated (threshold securities). SEC imposed the close-out requirement only on threshold securities because it believed high levels of FTD could indicate potential manipulative naked short selling. Increasing market volatility led SEC to issue a September 2008 emergency order requiring broker-dealers to close out FTD resulting from short sales in any security the day after the settlement date. SEC extended thisrequirement until July 2009 in an interim final temporary rule. GAO found that the number of threshold securities declined after the implementation of the stricter close-out requirement, but it is not clear whether this trend can be sustained. Some market participants believe that the stricter close-out requirement does not prevent manipulative trading from occurring within the 3-day settlement period. They recommend that SEC address potential abuse by requiring all short sellers to borrow securities before a short sale. As the Commission considers whether to finalize the temporary rule, SEC staff said that they are continuing to evaluate the appropriateness of a preborrow requirement for addressing FTD and market manipulation related to naked short selling. However, SEC staff said that the costs of a preborrow requirement might outweigh the benefits because FTD represent 0.01 percent of the dollar value of trades, and that a small group of securities (small market capitalization, thinly traded, or illiquid) are likely to be the target of any manipulative scheme. SEC and SRO examiners have found that some broker-dealers do not monitor whether the source a broker-dealer uses to locate available securities is reasonable (i.e., does not result in FTD). The broker-dealers may not have done so because firms do not expect that the source from which it obtained the locate will be used to obtain shares for settlement. In some cases, the executing broker-dealer may lack information needed to establish whether the locates were reasonable. SEC staff worked with the industry to draft guidance in 2007 to clarify communication responsibilities in such instances, but SEC has not finalized it. As a result, some firms may continue to be noncompliant with the locate requirement. Furthermore, SEC sometimes did not provide interpretive guidance for questions on the implementation of Regulation SHO and temporary rule-related requirements, or did so after lengthy delays. SEC does not have formal processes for determining which requests for guidance merit a formal response, nor does it have a process by which implementation issues that arise from temporary rules can be readily addressed. Without timely and clear guidance to the industry, SEC cannot ensure the consistent implementation of its rules or help address the unintended consequences of operational issues that occur while awaiting rule expiry or finalization.
Recommendations for Executive Action
Status: Open
Comments: As of June 4, 2019, the revised Prime Broker letter has not been finalized. Staff from the Reg SHO team in SEC's Trading and Markets division stated that they have regularly and continuously asked the industry for comments on the Prime Broker Letter without receiving any real progress. Their most recent request for comments was emailed to industry counsel on May 22, 2019. Industry counsel acknowledged the request but have yet to provide comments.
Recommendation: To address the current information gap in Regulation SHO for prime brokerage arrangements and mitigate the impact of any unintended consequences caused by SEC rules, as well as ensure consistent implementation of SEC rules by the industry, the Chairman of the Securities and Exchange Commission should finalize, in an expedited manner upon finalization of the temporary rule, the revised 1994 Prime Broker Letter.
Agency Affected: United States Securities and Exchange Commission
Status: Closed - Implemented
Comments: Trading and Markets staff finalized a memorandum on 9/25/2013 that details a process that allows Trading and Markets staff to raise and resolve implementation issues and other concerns that arise from SEC regulations, including interim rules, in a timely manner. This process was developed in consultation with the Office of the Chairman, and the Commission approved it.
Recommendation: To address the current information gap in Regulation SHO for prime brokerage arrangements and mitigate the impact of any unintended consequences caused by SEC rules, as well as ensure consistent implementation of SEC rules by the industry, the Chairman of the Securities and Exchange Commission should develop a process that allows Commission staff to raise and resolve implementation issues that arise from SEC regulations, including interim final temporary rules, in a timely manner.
Agency Affected: United States Securities and Exchange Commission
Explore the full database of GAO's Open Recommendations
»
Oct 26, 2020
-
Intellectual Property:
CBP Has Taken Steps to Combat Counterfeit Goods in Small Packages but Could Streamline EnforcementGAO-20-692: Published: Sep 24, 2020. Publicly Released: Oct 26, 2020.
Sep 30, 2020
-
Federal Criminal Restitution:
Department of Justice Has Ongoing Efforts to Improve Its Oversight of the Collection of Restitution and Tracking the Use of Forfeited AssetsGAO-20-676R: Published: Sep 30, 2020. Publicly Released: Sep 30, 2020.
Sep 10, 2020
-
Federal Tactical Teams:
Characteristics, Training, Deployments, and InventoryGAO-20-710: Published: Sep 10, 2020. Publicly Released: Sep 10, 2020.
Sep 8, 2020
-
VA Police:
Actions Needed to Improve Data Completeness and Accuracy on Use of Force Incidents at Medical CentersGAO-20-599: Published: Sep 8, 2020. Publicly Released: Sep 8, 2020.
Aug 13, 2020
-
Anti-Money Laundering:
FinCEN Should Enhance Procedures for Implementing and Evaluating Geographic Targeting OrdersGAO-20-546: Published: Jul 14, 2020. Publicly Released: Aug 13, 2020.
Jul 29, 2020
-
Federal Prison Industries:
Actions Needed to Evaluate Program EffectivenessGAO-20-505: Published: Jul 29, 2020. Publicly Released: Jul 29, 2020.
Jul 8, 2020
-
Gun Control:
DOJ Can Further Improve Guidance on Federal Firearm Background Check RecordsGAO-20-528: Published: Jul 8, 2020. Publicly Released: Jul 8, 2020.
Jun 22, 2020
-
Federal Prisons:
Additional Analysis Needed to Determine Whether to Issue Pepper Spray to Minimum Security PrisonsGAO-20-342: Published: Jun 22, 2020. Publicly Released: Jun 22, 2020.
May 26, 2020
-
Bureau of Prisons:
Improved Planning Would Help BOP Evaluate and Manage Its Portfolio of Drug Education and Treatment ProgramsGAO-20-423: Published: May 26, 2020. Publicly Released: May 26, 2020.
May 12, 2020
-
Forensic Technology:
Algorithms Used in Federal Law EnforcementGAO-20-479SP: Published: May 12, 2020. Publicly Released: May 12, 2020.
Looking for more? Browse all our products here