``Naked'' Short Selling Anti-Fraud Rule, 15376-15385 [E8-5697]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 73, Number 56 (Friday, March 21, 2008)]
[Proposed Rules]
[Pages 15376-15385]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-5697]



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Part IV





Securities and Exchange Commission





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17 CFR Part 240



Naked Short Selling Anti-Fraud Rule; Proposed Rule

Federal Register / Vol. 73, No. 56 / Friday, March 21, 2008 / 
Proposed Rules

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 240

[Release No. 34-57511; File No. S7-08-08]
RIN 3235-AK06


``Naked'' Short Selling Anti-Fraud Rule

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
proposing an anti-fraud rule under the Securities Exchange Act of 1934 
(``Exchange Act'') to address fails to deliver securities that have 
been associated with ``naked'' short selling. The proposed rule is 
intended to highlight the liability of persons that deceive specified 
persons about their intention or ability to deliver securities in time 
for settlement, including persons that deceive their broker-dealer 
about their locate source or ownership of shares and that fail to 
deliver securities by settlement date.

DATES: Comments should be received on or before May 20, 2008.

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

Electronic Comments

     Use the Commission's Internet comment form (https://
www.sec.gov/rules/proposed.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number S7-08-08 on the subject line; or
     Use the Federal eRulemaking Portal (https://
www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

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

All submissions should refer to File Number S7-08-08. This file number 
should be included on the subject line if e-mail is used. To help us 
process and review your comments more efficiently, please use only one 
method. The Commission will post all comments on the Commission's 
Internet Web site (https://www.sec.gov/rules/proposed.shtml). Comments 
are also available for public inspection and copying in the 
Commission's Public Reference Room, 100 F Street, NE., Washington, DC 
20549, on official business days between the hours of 10 a.m. and 3 
p.m. All comments received will be posted without change; we do not 
edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT: James A. Brigagliano, Associate 
Director, Josephine J. Tao, Assistant Director, Victoria L. Crane, 
Branch Chief, Joan M. Collopy, Special Counsel, Todd E. Freier and 
Christina M. Adams, 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 requesting public comment 
on proposed Rule 10b-21 under the Exchange Act.

I. Introduction

    The Commission is proposing an anti-fraud rule, Rule 10b-21, aimed 
at short sellers, including broker-dealers acting for their own 
accounts, who deceive specified persons, such as a broker or dealer, 
about their intention or ability to deliver securities in time for 
settlement and that fail to deliver securities by settlement date. 
Among other things, proposed Rule 10b-21 would target short sellers who 
deceive their broker-dealers about their source of borrowable shares 
for purposes of complying with Regulation SHO's ``locate'' 
requirement.\1\ The proposed rule would also apply to sellers who 
misrepresent to their broker-dealers that they own the shares being 
sold.
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    \1\ See 17 CFR 242.203(b)(1).
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    A seller misrepresenting its short sale locate source or ownership 
of shares may intend to fail to deliver securities in time for 
settlement and, therefore, engage in abusive ``naked'' short selling. 
Although abusive ``naked'' short selling is not defined in the federal 
securities laws, it refers generally to selling short without having 
stock available for delivery and intentionally failing to deliver stock 
within the standard three-day settlement cycle.\2\
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    \2\ See Exchange Act Release No. 56212 (Aug. 7, 2007), 72 FR 
45544 (Aug. 14, 2007) (``2007 Regulation SHO Amendments''); Exchange 
Act Release No. 54154 (July 14, 2006), 71 FR 41710 (July 21, 2006) 
(``2006 Regulation SHO Proposed Amendments'').
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    Although abusive ``naked'' short selling as part of a manipulative 
scheme is always illegal under the general anti-fraud provisions of the 
federal securities laws, including Rule 10b-5 under the Exchange 
Act,\3\ proposed Rule 10b-21 would highlight the specific liability of 
persons that deceive specified persons about their intention or ability 
to deliver securities in time for settlement, including persons that 
deceive their broker-dealer about their locate source or ownership of 
shares.\4\ We believe that a rule highlighting the illegality of these 
activities would focus the attention of market participants on such 
activities. The proposed rule would also highlight that the Commission 
believes such deceptive activities are detrimental to the markets and 
would provide a measure of predictability for market participants.
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    \3\ 17 CFR 240.10b-5.
    \4\ This conduct is also in violation of other provisions of the 
federal securities laws, including the anti-fraud provisions.
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    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. Thus, the proposal takes direct aim at an activity that may 
create fails to deliver. Those fails can have a negative effect on 
shareholders, potentially depriving them of the benefits of ownership, 
such as voting and lending. They also may create a misleading 
impression of the market for an issuer's securities. Proposed Rule 10b-
21 would also aid broker-dealers in complying with the locate 
requirement of Regulation SHO and, thereby, potentially reduce fails to 
deliver. In addition, the proposed rule could help reduce manipulative 
schemes involving ``naked'' short selling.

II. Background

A. Regulation SHO

    Short selling involves a sale of a security that the seller does 
not own and that is consummated by the delivery of a security borrowed 
by or on behalf of the seller.\5\ In a ``naked'' short sale, a seller 
does not borrow or arrange to borrow securities in time to make 
delivery to the buyer within the standard three-day settlement 
period.\6\ As a result, the seller fails to deliver securities to the 
buyer when delivery is due (known as a ``fail'' or ``fail to 
deliver'').\7\ Sellers sometimes

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intentionally fail to deliver securities as part of a scheme to 
manipulate the price of a security,\8\ or possibly to avoid borrowing 
costs associated with short sales.
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    \5\ 17 CFR 242.200(a).
    \6\ See Exchange Act Release No. 50103 (July 28, 2004), 69 FR 
48008 (Aug. 6, 2004) (``2004 Regulation SHO Adopting Release'') 
(stating that ``naked'' short selling generally refers to selling 
short without having borrowed the securities to make delivery).
    \7\ 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 the investor purchases a security, the purchaser's payment 
generally is received by its brokerage firm no later than three 
business days after the trade is executed. When the investor sells a 
security, the seller generally delivers its securities, in 
certificated or electronic form, to its brokerage firm no later than 
three business days after the sale. The three-day settlement period 
applies to most security transactions, including stocks, bonds, 
municipal securities, mutual funds traded through a brokerage firm, 
and limited partnerships 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.
    \8\ In 2003, the Commission settled a case against certain 
parties relating to allegations of manipulative short selling in the 
stock of a corporation. The Commission alleged that the defendants 
profited from engaging in massive naked short selling that flooded 
the market with the 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) (Feb. 26, 2003).
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    Although the majority of trades settle within the standard three-
day settlement period,\9\ the Commission adopted Regulation SHO \10\ in 
part to address problems associated with persistent fails to deliver 
securities and potentially abusive ``naked'' short selling.\11\ Rule 
203 of Regulation SHO, in particular, contains a ``locate'' requirement 
that 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: (1) Borrowed the security, or entered into a bona-fide arrangement 
to borrow the security; or (2) Reasonable grounds to believe that the 
security can be borrowed so that it can be delivered on the date 
delivery is due; and (3) Documented compliance with this paragraph 
(b)(1).'' \12\ In the 2004 Regulation SHO Adopting Release, the 
Commission explicitly permitted broker-dealers to rely on customer 
assurances that the customer has identified its own source of 
borrowable securities, provided it is reasonable for the broker-dealer 
to do so.\13\ We are concerned, however, that some short sellers may 
have been deliberately misrepresenting to broker-dealers that they have 
obtained a legitimate locate source.\14\
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    \9\ According to the NSCC, 99% (by dollar value) of all trades 
settle within T+3. Thus, on an average day, approximately 1% (by 
dollar value) of all trades, including equity, debt, and municipal 
securities fail to settle on time. The vast majority of these fails 
are closed out within five days after T+3. In addition, fails to 
deliver may arise from either short sales 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, thus causing a fail to deliver on a 
long sale within the normal three-day settlement period. The 
Commission's Office of Economic Analysis (``OEA'') estimates that, 
on an average day between May 1, 2007 and January 31, 2008, 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 0.6% of dollar value of trading in all securities.
    \10\ 17 CFR 242.200. Regulation SHO became effective on January 
3, 2005.
    \11\ See 2007 Regulation SHO Amendments, 72 FR at 45544 (stating 
that ``[a]mong other things, Regulation SHO imposes a close-out 
requirement to address persistent failures to deliver stock on trade 
settlement date and to target potentially abusive ``naked'' short 
selling in certain equity securities'').
    \12\ 17 CFR 242.203(b). Market makers engaged in bona fide 
market making in the security at the time they effect the short sale 
are excepted from this requirement.
    \13\ See 2004 Regulation SHO Adopting Release, 69 FR at 48014.
    \14\ See, e.g., Sandell Asset Management Corp., Lars Eric Thomas 
Sandell, Patrick T. Burke and Richard F. Ecklord, Securities Act 
Release No. 8857 (Oct. 10, 2007) (settled order).
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    In addition, we are concerned that some short sellers may have made 
misrepresentations to their broker-dealers about their ownership of 
shares as an end run around Regulation SHO's locate requirement.\15\ 
Some sellers have also misrepresented that their sales are long sales 
in order to circumvent Rule 105 of Regulation M,\16\ which prohibits 
certain short sellers from purchasing securities in a secondary or 
follow-on offering.\17\ Under Rule 200(g)(1) of Regulation SHO, ``[a]n 
order to sell shall be marked ``long'' only if the seller is deemed to 
own the security being sold pursuant to paragraphs (a) through (f) of 
this section \18\ and either: (i) The security to be delivered is in 
the physical possession or control of the broker or dealer; or (ii) it 
is reasonably expected that the security will be in the physical 
possession or control of the broker or dealer no later than the 
settlement of the transaction.'' \19\
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    \15\ See id.
    \16\ 17 CFR 242.105.
    \17\ See Goldman Sachs Execution and Clearing L.P., Exchange Act 
Release No. 55465 (Mar. 14, 2007) (settled order).
    \18\ Rule 200(b) of Regulation SHO provides that a seller is 
deemed to own a security if, ``(1) The person or his agent has title 
to it; or (2) The person has purchased, or has entered into an 
unconditional contract, binding on both parties thereto, to purchase 
it, but has not yet received it; or (3) The person owns a security 
convertible into or exchangeable for it and has tendered such 
security for conversion or exchange; or (4) The person has an option 
to purchase or acquire it and has exercised such option; or (5) The 
person has rights or warrants to subscribe to it and has exercised 
such rights or warrants; or (6) The person holds a security futures 
contract to purchase it and has received notice that the position 
will be physically settled and is irrevocably bound to receive the 
underlying security.''
    \19\ 17 CFR 242.200(g)(1).
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    Under Regulation SHO, the executing or order-entry broker-dealer is 
responsible for determining whether there are reasonable grounds to 
believe that a security can be borrowed so that it can be delivered on 
the date delivery is due on a short sale, and whether a seller owns the 
security being sold and can reasonably expect that the security will be 
in the physical possession or control of the broker-dealer no later 
than settlement date for a long sale. However, a broker-dealer relying 
on a customer that makes misrepresentations about its locate source or 
ownership of shares may not receive shares when delivery is due. For 
example, sellers may be making misrepresentations to their broker-
dealers about their locate sources or ownership of shares for 
securities that are very difficult or expensive to borrow. Such sellers 
may know that they cannot deliver securities by settlement date due to, 
for example, a limited number of shares being available to borrow or 
purchase, or they may not intend to obtain shares for timely delivery 
because the cost of borrowing or purchasing may be high. This result 
undermines the Commission's goal of addressing concerns related to 
``naked'' short selling and extended fails to deliver.

B. Concerns About ``Naked'' Short Selling

    We are concerned about persons that sell short securities and 
deceive specified persons about their intention or ability to deliver 
the securities in time for settlement, or deceive their broker-dealer 
about their locate source or ownership of shares, or otherwise engage 
in abusive ``naked'' short selling. Commission enforcement actions have 
contributed to our concerns about the extent of misrepresentations by 
short sellers about their locate sources and ownership of shares. For 
example, the Commission recently announced a settled enforcement action 
against hedge fund adviser Sandell Asset Management Corp. (``SAM''), 
its chief executive officer, and two employees in connection with 
allegedly (i) improperly marking some short sale orders ``long'' and 
(ii) misrepresenting to executing brokers that SAM personnel had 
located sufficient stock to borrow for short sale orders.\20\
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    \20\ See Sandell Asset Management Corp., Securities Act Release 
No. 8857; see also Goldman Sachs Execution and Clearing L.P., 
Exchange Act Release No. 55465; U.S. v. Naftalin, 441 U.S. 768 
(1979) (discussing a market manipulation scheme in which brokers 
suffered substantial losses when they had to purchase securities to 
replace securities they had borrowed to make delivery on short sale 
orders received from an individual investor who had falsely 
represented to the brokers that he owned the securities being sold).

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    As we have stated previously, we are concerned that fails to 
deliver may have a negative effect on the market and shareholders.\21\ 
For example, fails to deliver may deprive shareholders of the benefits 
of ownership, such as voting and lending.\22\ In addition, where a 
seller of securities fails to deliver securities on settlement date, in 
effect the seller unilaterally converts a securities contract (which 
should 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.\23\ Moreover, 
sellers that fail to deliver securities on settlement date may be 
subject to fewer restrictions than sellers that are required to deliver 
the securities by settlement date, 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.\24\ For 
example, by not borrowing securities and, therefore, not making 
delivery within the standard three-day settlement period, the seller 
does not incur the costs of borrowing.
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    \21\ See 2007 Regulation SHO Amendments, 72 FR at 45544; 2006 
Regulation SHO Proposed Amendments, 71 FR at 41712; Exchange Act 
Release No. 56213 (Aug. 7, 2007), 72 FR 45558, 45558-45559 (Aug. 14, 
2007) (``2007 Regulation SHO Proposed Amendments'').
    \22\ See id.
    \23\ See id.
    \24\ See id.
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    In addition, issuers and investors have expressed concerns about 
fails to deliver in connection with ``naked'' short selling. For 
example, in response to proposed amendments to Regulation SHO in 2006 
\25\ 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.\26\
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    \25\ See 2006 Regulation SHO Proposed Amendments.
    \26\ See, e.g., letter from Patrick M. Byrne, Chairman and Chief 
Executive Officer, Overstock.com, Inc., dated Sept. 11, 2006 
(``Overstock''); letter from Daniel Behrendt, Chief Financial 
Officer, and Douglas Klint, General Counsel, TASER International, 
dated Sept. 18, 2006 (``TASER''); letter from John Royce, dated 
April 30, 2007 (``Royce''); letter from Michael Read, dated April 
29, 2007 (``Read''); letter from Robert DeVivo, dated April 26, 2007 
(``DeVivo''); letter from Ahmed Akhtar, dated April 26, 2007 
(``Akhtar'').
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    To the extent that fails to deliver might be indicative of 
manipulative ``naked'' short selling, which could be used as a tool to 
drive down a company's stock price,\27\ such fails to deliver may 
undermine the confidence of investors.\28\ These investors, in turn, 
may be reluctant to commit capital to an issuer they believe to be 
subject to such manipulative conduct.\29\ 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.\30\ Any unwarranted reputational damage caused by 
fails to deliver might have an adverse impact on the security's 
price.\31\
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    \27\ See supra, note 8 (discussing a case in which the 
Commission 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).
    \28\ In response to the 2006 Regulation SHO Proposed Amendments, 
the Commission received comment letters discussing the impact of 
fails to deliver on investor confidence. See, e.g., letter from Mary 
Helburn, Executive Director, National Coalition Against Naked 
Shorting, dated Sept. 30, 2006 (``NCANS''); letter from Richard 
Blumenthal, Attorney General, State of Connecticut, dated Sept. 19, 
2006 (``Blumenthal'').
    \29\ In response to the 2006 Regulation SHO Proposed Amendments, 
the Commission 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 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.'').
    \30\ 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, 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).
    \31\ See also 2006 Regulation SHO Proposed Amendments, 71 FR at 
41712; 2007 Regulation SHO Amendments, 72 FR at 45544; 2007 
Regulation SHO Proposed Amendments, 72 FR at 45558-45559 (providing 
additional discussion of the impact of fails to deliver on the 
market); see also Exchange Act Release No. 48709 (Oct. 28, 2003), 68 
FR 62972, 62975 (Nov. 6, 2003) (``2003 Regulation SHO Proposing 
Release'') (discussing the impact of ``naked'' short selling on the 
market).
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III. Discussion of Proposed Rule

A. Proposed Anti-Fraud Rule

    To further address potentially abusive ``naked'' short selling and 
fails to deliver, we are proposing a narrowly-tailored rule, Rule 10b-
21, which would specify that it is unlawful for any person to submit an 
order to sell a security if such person deceives a broker-dealer, 
participant of a registered clearing agency, or purchaser \32\ 
regarding its intention or ability to deliver the security on the date 
delivery is due, and such person fails to deliver the security on or 
before the date delivery is due.\33\ Scienter would be a necessary 
element for a violation of the proposed rule.\34\
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    \32\ 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.
    \33\ Proposed Rule 10b-21.
    \34\ Ernst & Ernst v. Hochfelder, et. al., 425 U.S. 185 (1976). 
Scienter has been defined as ``a mental state embracing the intent 
to deceive, manipulate or defraud.'' Id. at 193, n.12. While the 
Supreme Court has not decided the issue (see Aaron v. SEC, 446 U.S. 
686 (1980); Ernst & Ernst, 425 at 193 n.12), federal appellate 
courts have concluded that scienter may be established by a showing 
of either knowing conduct or by ``an `extreme departure from the 
standards of ordinary care * * * which presents a danger of 
misleading buyers or sellers that is either known to the defendant 
or is so obvious that the actor must have been aware of it.' '' 
Dolphin & Bradbury v. SEC, 512 F.3d 634 (D.C. Cir. Jan. 11, 2008) 
(quoting Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1045 
(7th Cir. 1977)).
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    The proposed rule would cover those situations where a seller 
deceives a broker-dealer, participant of a registered clearing agency, 
or a purchaser about its intention to deliver securities by settlement 
date, its locate source, or its share ownership, and the seller fails 
to deliver securities by settlement date. Proposed Rule 10b-21 would 
apply to the deception of persons participating in the transaction--
broker-dealers, participants of registered clearing agencies, or 
purchasers. Further, because one of the principal goals of proposed 
Rule 10b-21 is to reduce fails

[[Page 15379]]

to deliver, violation of the proposed rule would occur only if a fail 
to deliver results from the relevant transaction.
    For purposes of the proposed rule, broker-dealers (including market 
makers) acting for their own accounts would be considered sellers. For 
example, a broker-dealer effecting short sales for its own account 
would be liable under the rule if it does not obtain a valid locate 
source and fails to deliver securities to the purchaser. Such broker-
dealers defraud purchasers that may not receive delivery on time, in 
effect unilaterally forcing the purchaser into accepting an undated 
futures-type contract.\35\
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    \35\ See 2007 Regulation SHO Amendments, 72 FR at 45544; 2006 
Regulation SHO Proposed Amendments, 71 FR at 41712; 2007 Regulation 
SHO Proposed Amendments, 72 FR at 45558-45559.
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    As noted above, under Regulation SHO, the executing or order-entry 
broker-dealer is responsible for determining whether there are 
reasonable grounds to believe that a security can be borrowed so that 
it can be delivered on the date delivery is due on a short sale.\36\ In 
the 2004 Regulation SHO Adopting Release, the Commission explicitly 
permitted broker-dealers to rely on customer assurances that the 
customer has identified its own locate source, provided it is 
reasonable for the broker-dealer to do so.\37\ If a seller elects to 
provide its own locate source to a broker-dealer, the seller is 
representing that it has contacted that source and reasonably believes 
that the source can or intends to deliver the full amount of the 
securities to be sold short by settlement date. In addition, if a 
seller enters a short sale order into a broker-dealer's direct market 
access or sponsored access system (``DMA'') with any information 
purporting to identify a locate source obtained by the seller, the 
seller would be making a representation to a broker-dealer for purposes 
of proposed Rule 10b-21.\38\
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    \36\ See 17 CFR 242.203(b)(3)(1).
    \37\ See 2004 Regulation SHO Adopting Release, 69 FR at 48014.
    \38\ Broker-dealers may offer DMA to customers by providing them 
with electronic access to a market's execution system using the 
broker-dealer's market participant identifier. The broker-dealer, 
however, retains the ultimate responsibility for the trading 
activity of its customer.
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    If a seller deceives a broker-dealer about the validity of its 
locate source, the seller would be liable under proposed Rule 10b-21 if 
the seller also fails to deliver securities by the date delivery is 
due. For example, a seller would be liable for a violation of proposed 
Rule 10b-21 if it represented that it had identified a source of 
borrowable securities, but the seller never contacted the purported 
source to determine whether shares were available and could be 
delivered in time for settlement and the seller fails to deliver 
securities by settlement date. A seller would also be liable if it 
contacted the source and learned that the source did not have 
sufficient shares for timely delivery, but the seller misrepresented 
that the source had sufficient shares that it could deliver in time for 
settlement and the seller fails to deliver securities by settlement 
date; or, if the seller contacted the source and the source had 
sufficient shares that it could deliver in time for settlement, but the 
seller never instructed the source to deliver the shares in time for 
settlement and the seller otherwise refused to deliver shares on 
settlement date such that the sale results in a fail to deliver.
    If, however, a seller is relying on a broker-dealer to comply with 
Regulation SHO's locate obligation and to make delivery on a sale, the 
seller would not be representing at the time it submits an order to 
sell a security that it can or intends to deliver securities on the 
date delivery is due. For example, a seller might be relying on its 
broker-dealer to borrow or arrange to borrow the security to make 
delivery by settlement date. Alternatively, a seller might be relying 
on a broker-dealer's ``Easy to Borrow'' list. If a seller in good faith 
relies on a broker-dealer's ``Easy to Borrow'' list to satisfy the 
locate requirement, the seller would not be deceiving the broker-dealer 
at the time it submits an order to sell a security that it can or 
intends to deliver securities on the date delivery is due. In 
discussing the locate requirement of Regulation SHO, in the 2004 
Regulation SHO Adopting Release, the Commission stated that ``absent 
countervailing factors, `Easy to Borrow' lists may provide `reasonable 
grounds' for a broker-dealer to believe that the security sold short is 
available for borrowing without directly contacting the source of the 
borrowed securities.'' \39\
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    \39\ 2004 Regulation SHO Adopting Release, 69 FR at 48014.
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    In addition, a market maker engaged in bona fide market making 
activity would not be making a representation at the time it submits an 
order to sell short that it can or intends to deliver securities on the 
date delivery is due, because such market makers are excepted from the 
locate requirement of Regulation SHO. Regulation SHO excepts from the 
locate requirement market makers engaged in bona-fide market making 
activities because market makers need to facilitate customer orders in 
a fast moving market without possible delays associated with complying 
with the locate requirement.\40\ Thus, at the time of submitting an 
order to sell short, market makers that have an exception from the 
locate requirement of Regulation SHO may know that they may not be able 
to deliver securities on the date delivery is due.
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    \40\ See 2004 Regulation SHO Adopting Release, 69 FR at 48015, 
n. 67.
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    Under proposed Rule 10b-21, a seller would be liable if it deceives 
a broker-dealer, participant of a registered clearing agency, or 
purchaser about its ownership of shares or the deliverable condition of 
owned shares and fails to deliver securities by settlement date. For 
example, a seller would be liable for a violation of proposed Rule 10b-
21 for causing a broker-dealer to mark an order to sell a security 
``long'' if the seller knows or recklessly disregards that it is not 
``deemed to own'' the security being sold, as defined in Rules 200(a) 
through (f) of Regulation SHO \41\ or if the seller knows or recklessly 
disregards that the security being sold is not, or cannot reasonably be 
expected to be, in the broker-dealer's physical possession or control 
by the date delivery is due, and the seller fails to deliver the 
security by settlement date. Broker-dealers acting for their own 
accounts would also be liable under the proposed rule for marking an 
order ``long'' if the broker-dealer knows or recklessly disregards that 
it is not ``deemed to own'' the security being sold or that the 
security being sold is not, or cannot reasonably be expected to be, in 
the broker-dealer's physical possession or control by the date delivery 
is due, and the broker-dealer fails to deliver the security by 
settlement date.\42\
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    \41\ 17 CFR 242.200(a)-(f).
    \42\ Such broker-dealers would also be liable under Regulation 
SHO.
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    However, a seller would not be making a representation at the time 
it submits an order to sell a security that it can or intends to 
deliver securities on the date delivery is due if the seller submits an 
order to sell securities that are held in a margin account but the 
broker-dealer has loaned out the shares pursuant to the margin 
agreement. Under such circumstances, it would be reasonable for the 
seller to expect that the securities will be in the broker-dealer's 
physical possession or control by settlement date.
    Although the proposed rule is primarily aimed at sellers that 
deceive specified persons about their intention or ability to deliver 
shares or about their locate sources and ownership of shares, as with 
any rule, broker-dealers could be liable for aiding and abetting a

[[Page 15380]]

customer's fraud under the proposed rule. In addition, broker-dealers 
would remain subject to liability under Regulation SHO and the general 
anti-fraud provisions of the federal securities laws.
    Proposed Rule 10b-21 is narrowly tailored to apply when a seller, 
including a broker-dealer trading for its own account, deceives 
specified persons about its ability or intention to deliver securities 
in time for settlement, or about its locate source or ownership of 
shares and that fails to deliver securities by settlement date. While 
``naked'' short selling as part of a manipulative scheme is already 
illegal under the general anti-fraud provisions of the federal 
securities laws, we believe that the proposed anti-fraud rule would 
highlight the specific liability of persons that deceive specified 
persons about their intention or ability to deliver securities in time 
for settlement, including persons that deceive their broker-dealer 
about their locate source or ownership of shares. Proposed Rule 10b-21 
would also aid broker-dealers in complying with the locate requirement 
of Regulation SHO and, thereby, potentially reduce fails to 
deliver.\43\
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    \43\ The Commission would continue to monitor the effect of 
``naked'' short selling practices to determine whether additional 
rulemaking is warranted.
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Request for Comment
    The Commission seeks comment generally on all aspects of proposed 
Rule 10b-21. In addition, we seek comment on the following:
     Proposed Rule 10b-21 would apply to sales in all equity 
securities. Should we narrow the scope of the proposed rule to apply 
only to sales of ``threshold securities'' as that term is defined in 
Rule 203(c)(6) of Regulation SHO \44\ or to certain types of 
securities? Why or why not? If so, to what types of securities should 
the proposed rule apply? If we narrow the proposed rule to apply only 
to certain types of securities, should exchange traded funds or other 
basket securities be excluded? Why or why not?
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    \44\ Rule 203(c)(6) defines ``threshold securities'' 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)).'' 17 CFR 242.203(c)(6).
---------------------------------------------------------------------------

     The proposed rule highlights the specific liability of 
persons that deceive broker-dealers, participants of a registered 
clearing agency, or purchasers about their intention or ability to 
deliver securities in time for settlement. Are there other entities 
that could be deceived about a seller's intention or ability to deliver 
securities in time for settlement that should be included in the 
proposed rule? As an alternative to listing who must be deceived, 
should the proposed rule provide that a person would be liable if it 
deceives ``another person'' about its intention or ability to deliver 
securities in time for settlement? Please explain.
     The proposed rule includes a person failing to deliver 
securities when delivery is due as an element for a violation of the 
proposed rule. What are the costs and benefits, including to broker-
dealers or customers, for including delivery as an element of the 
violation? Would the inclusion of a fail to deliver as an element of 
the proposed rule encourage broker-dealers, as a service to customers, 
to deliver securities on behalf of customers to prevent customers from 
failing to deliver securities by settlement date? Would broker-dealers 
feel any additional obligation to purchase or borrow securities on 
behalf of their customers to deliver on a customer's sale? What would 
be the costs to broker-dealers if they were to take such actions, 
particularly if the sale involves an expensive or hard to borrow 
security? Would the inclusion of failing to deliver as an element for a 
violation of the proposed rule increase costs for customers for 
inadvertent fails? Should delivery be excluded as a required element 
for a violation? For example, should the rule language instead be: ``It 
shall constitute a `manipulative or deceptive device or contrivance' as 
used in section 10(b) of this Act for any person to submit an order to 
sell a security if such person deceives a broker or dealer, participant 
of a registered clearing agency, or a purchaser about its intention or 
ability to deliver the security on the date delivery is due''? What 
would be the costs and benefits of excluding delivery as an element for 
a violation of the proposed rule? Would excluding failing to deliver as 
an element for liability under the proposed rule affect a self-
regulatory organization's ability to surveil for violations of the 
rule?
     In the 2004 Regulation SHO Adopting Release, the 
Commission stated that a broker-dealer could satisfy the locate 
requirement of Regulation SHO by obtaining an assurance from a customer 
that the customer can obtain securities from another identified source 
in time to settle the trade, provided the broker-dealer reasonably 
believes the customer's assurance. Proposed Rule 10b-21 is aimed, in 
part, at sellers who make misrepresentations to their broker-dealers 
about their locate sources. Should we instead no longer permit a 
broker-dealer to rely on such customer assurances in satisfying the 
locate requirement of Regulation SHO? What would be the costs and 
benefits of removing the ability of broker-dealers to rely on such 
customer assurances? What would be the impact on market participants 
(such as broker-dealers, stock lenders, investors)? Would smaller 
entities be affected more or less adversely than larger entities?
     What procedures do broker-dealers currently have in place 
to assist in making the determination that there are reasonable grounds 
to believe that customers' representations regarding a locate source 
are accurate? How do those procedures help to provide confidence 
regarding the accuracy of such representations?
     What procedures do broker-dealers currently have in place 
to determine the accuracy of a seller's representations that it owns 
the securities being sold and that the securities are reasonably 
expected to be in the broker-dealer's physical possession or control by 
settlement?
     Are there other types of transactions to which proposed 
Rule 10b-21 should not apply?
     Are there any issues with respect to the application of 
the proposed rule in the context of the use of DMAs? If so, please 
explain.
     Are there any issues with respect to the application of 
the proposed rule to trades submitted to, or effected on, electronic 
communications networks?
     To what extent, if any, would the proposed rule encourage 
or result in fewer executing broker-dealers relying on customer 
assurances to satisfy the locate requirement of Regulation SHO? To what 
extent would such a result of the proposed rule impact prime brokerage 
relationships? Please explain.
     Although the type of activity that would be illegal under 
the proposed rule is already prohibited by the general anti-fraud 
provisions of the federal securities laws, to what extent, if any, 
would the proposed rule impact liquidity and market quality in 
securities traded? Please explain. To what extent, if any, might the 
proposed rule result in short squeezes? What costs, if any, would the 
potential for short squeezes have on the efficiency of the market?
     To what extent, if any, would the proposed rule induce 
short sellers to execute trades in overseas markets?

IV. General Request for Comment

    The Commission seeks comment generally on all aspects of the 
proposed rule. Commenters are requested to provide empirical data to 
support their views and arguments related to

[[Page 15381]]

proposed Rule 10b-21. In addition to the questions posed above, 
commenters are welcome to offer their views on any other matter raised 
by the proposed rule. With respect to any comments, we note that they 
are of the greatest assistance to our rulemaking initiative if 
accompanied by supporting data and analysis of the issues addressed in 
those comments and if accompanied by alternative suggestions to our 
proposals where appropriate.

V. Paperwork Reduction Act

    Proposed Rule 10b-21 does not contain a ``collection of 
information'' requirement within the meaning of the Paperwork Reduction 
Act of 1995.\45\ An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.
---------------------------------------------------------------------------

    \45\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

VI. Consideration of Costs and Benefits of the Proposed Amendments

    The Commission is considering the costs and benefits of proposed 
Rule 10b-21. The Commission is sensitive to these costs and benefits, 
and encourages commenters to discuss any additional costs or benefits 
beyond those discussed here, as well as any reductions in costs. In 
particular, the Commission requests comment on the potential costs for 
any modification 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 
proposals for issuers, investors, brokers or dealers, other securities 
industry professionals, regulators, and other market participants. 
Commenters should provide analysis and data to support their views on 
the costs and benefits associated with the proposed rule.

A. Benefits

    Proposed Rule 10b-21 is intended to address abusive ``naked'' short 
selling and fails to deliver. The proposed rule is aimed at short 
sellers, including broker-dealers acting for their own accounts, who 
deceive broker-dealers, participants of a registered clearing agency, 
or purchasers about their intention or ability to deliver securities in 
time for settlement and that fail to deliver securities by settlement 
date. Among other things, proposed Rule 10b-21 would target short 
sellers who deceive their broker-dealers about their source of 
borrowable shares for purposes of complying with Regulation SHO's 
``locate'' requirement.\46\ The proposed rule would also apply to 
sellers who misrepresent to their broker-dealers that they own the 
shares being sold.\47\
---------------------------------------------------------------------------

    \46\ See 17 CFR 242.203(b)(1).
    \47\ Proposed Rule 10b-21.
---------------------------------------------------------------------------

    A seller misrepresenting its short sale locate source or ownership 
of shares may intend to fail to deliver securities in time for 
settlement and, therefore, engage in abusive ``naked'' short selling. 
As noted above, although abusive ``naked'' short selling is not defined 
in the federal securities laws, it refers generally to selling short 
without having stock available for delivery and intentionally failing 
to deliver stock within the standard three-day settlement cycle.\48\ 
Such short selling may or may not be part of a scheme to manipulate the 
price of a security. Although ``naked'' short selling as part of a 
manipulative scheme is always illegal under the general anti-fraud 
provisions of the federal securities laws, including Rule 10b-5 under 
the Exchange Act,\49\ proposed Rule 10b-21 would highlight the specific 
liability of persons that deceive specified persons about their 
intention or ability to deliver securities in time for settlement, 
including persons that deceive their broker-dealer about their locate 
source or ownership of shares and that fail to deliver securities by 
settlement date. We believe that a rule specifying the illegality of 
these activities would focus the attention of market participants on 
such activities. The proposed rule would also highlight that the 
Commission believes such deceptive activities are detrimental to the 
markets and would provide a measure of predictability for market 
participants.
---------------------------------------------------------------------------

    \48\ See supra note 2.
    \49\ 17 CFR 240.10b-5.
---------------------------------------------------------------------------

    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. Thus, the proposal takes direct aim at an activity that may 
create fails to deliver. Those fails can have a negative effect on 
shareholders, potentially depriving them of the benefits of ownership, 
such as voting and lending. They also may create a misleading 
impression of the market for an issuer's securities. As noted above, 
issuers and investors have expressed concerns about fails to deliver in 
connection with ``naked'' short selling. For example, in response to 
proposed amendments to Regulation SHO in 2006 \50\ 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.\51\
---------------------------------------------------------------------------

    \50\ See 2006 Regulation SHO Proposed Amendments.
    \51\ See, e.g., letters from Overstock; TASER, Royce; Read; 
DeVivo; Akhtar.
---------------------------------------------------------------------------

    To the extent that fails to deliver might be indicative of 
manipulative ``naked'' short selling, which could be used as a tool to 
drive down a company's stock price,\52\ such fails to deliver may 
undermine the confidence of investors.\53\ These investors, in turn, 
may be reluctant to commit capital to an issuer they believe to be 
subject to such manipulative conduct.\54\ 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.\55\ Any unwarranted reputational damage caused by 
fails to deliver might have an adverse impact on the security's 
price.\56\
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    \52\ See supra note 27.
    \53\ See supra note 28.
    \54\ See supra note 29.
    \55\ See supra note 30 (discussing the fact that due 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 DTC or 
broker-dealers).
    \56\ See supra note 31.
---------------------------------------------------------------------------

    Thus, to the extent that fails to deliver might create a misleading 
impression of the market for an issuer's securities, the proposed rule 
would benefit investors and issuers by taking direct aim at an activity 
that may create fails to deliver. In addition, to the extent that 
``naked'' short selling and fails to deliver result in an unwarranted 
decline in investor confidence about a security, the proposed rule 
should improve investor confidence about the security. In addition, the 
proposed rule could lead to greater certainty in the settlement of 
securities which should strengthen investor confidence in that process.
    The proposed rule could result in broker-dealers having greater 
confidence that their customers have obtained a valid locate source 
and, therefore, that shares are available for delivery on settlement 
date. Thus, the proposed rule would aid broker-dealers in complying 
with the locate requirement of Regulation SHO and, thereby, potentially 
reduce fails to deliver. The proposed rule also may provide additional 
encouragement for broker-

[[Page 15382]]

dealers to deliver shares by settlement date and, therefore, result in 
a reduction in fails to deliver. In addition, to the extent that sales 
of threshold securities do not result in fails to deliver, the proposed 
rule would reduce costs to broker-dealers because such broker-dealers 
would have to close out a lesser amount of fails to deliver under 
Regulation SHO's close-out requirement.\57\
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    \57\ Rule 203(b)(3)(iii) of Regulation SHO contains a close-out 
requirement that applies only to broker-dealers for securities in 
which a substantial amount of fails to deliver have occurred, also 
known as ``threshold securities.'' Specifically, Rule 203(b)(3)'s 
close-out requirement requires a participant of a clearing agency 
registered with the Commission to take immediate action to close out 
a fail to deliver position in a threshold security in the Continuous 
Net Settlement (CNS) system that has persisted for 13 consecutive 
settlement days by purchasing securities of like kind and quantity.
---------------------------------------------------------------------------

    In addition, the proposed rule could help reduce manipulative 
schemes involving ``naked'' short selling. We solicit comment on any 
additional benefits that could be realized with the proposed rule, 
including both short-term and long-term benefits. We solicit comment 
regarding benefits to market efficiency, pricing efficiency, market 
stability, market integrity and investor protection.

B. Costs

    As an aid in evaluating costs and reductions in costs associated 
with proposed Rule 10b-21, the Commission requests the public's views 
and any supporting information.
    The proposed rule is intended to address abusive ``naked'' short 
selling by highlighting the liability of persons that deceive specified 
persons about their intention or ability to deliver securities in time 
for settlement, including persons that deceive their broker-dealer 
about their locate source or ownership of shares and that fail to 
deliver securities by settlement date. The Commission recognizes that 
the proposed rule might result in increased costs to broker-dealers to 
the extent that the proposed rule encourages or results in broker-
dealers limiting the extent to which they rely on customer assurances 
in complying with the locate requirement of Regulation SHO. Because the 
failure to deliver securities by the date delivery is due is an element 
for a violation of the proposed rule, as a service to customers broker-
dealers could feel an additional obligation to borrow or purchase 
securities to deliver on customer sales even though the broker-dealer 
did not enter into an arrangement with the customer to do so. The 
proposed rule could result in increased costs to customers who 
inadvertently fail to deliver securities because such customers, in an 
attempt to avoid liability under the proposed rule, might purchase or 
borrow securities to deliver on a sale at a time when, but for the 
proposed rule, the seller would have allowed the fail to deliver 
position to remain open.
    The Commission believes that the proposed rule would not compromise 
investor protection. We seek data, however, supporting any potential 
costs associated with the proposed rule. In addition, we request 
specific comment on any systems changes to computer hardware and 
software, or surveillance costs that might be necessary to implement 
the proposed rule. Specifically:
     What would be the costs and benefits of the proposed rule?
     Would the proposed rule create any costs associated with 
systems, surveillance, or recordkeeping modifications? Would these 
costs justify the benefits of better ensuring compliance with the 
federal securities laws?
     How much would the proposed rule affect compliance costs 
for small, medium, and large broker-dealers (e.g., personnel or system 
changes)? We seek comment on the costs of compliance that may arise.

VII. Consideration of Burden on Competition and Promotion of 
Efficiency, Competition, and Capital Formation

    Section 3(f) of the Exchange Act requires the Commission, whenever 
it engages in rulemaking and whenever it is required to consider or 
determine if an action is necessary or appropriate in the public 
interest, to consider whether the action would promote efficiency, 
competition, and capital formation.\58\ In addition, Section 23(a)(2) 
of the Exchange Act requires the Commission, when adopting rules under 
the Exchange Act, to consider the impact such rules would have on 
competition.\59\ 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.
---------------------------------------------------------------------------

    \58\ 15 U.S.C. 78c(f).
    \59\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

    Proposed Rule 10b-21 is intended to address abusive ``naked'' short 
selling and fails to deliver. The proposed rule is aimed at short 
sellers, including broker-dealers acting for their own accounts, who 
deceive specified persons, such as a broker-dealer, about their 
intention or ability to deliver securities in time for settlement and 
fail to deliver securities by settlement date. Among other things, 
proposed Rule 10b-21 would target short sellers who deceive their 
broker-dealers about their source of borrowable shares for purposes of 
complying with Regulation SHO's ``locate'' requirement.\60\ The 
proposed rule would also apply to sellers who misrepresent to their 
broker-dealers that they own the shares being sold.\61\
---------------------------------------------------------------------------

    \60\ See 17 CFR 242.203(b)(1).
    \61\ Proposed Rule 10b-21.
---------------------------------------------------------------------------

    Although ``naked'' short selling as part of a manipulative scheme 
is always illegal under the general anti-fraud provisions of the 
federal securities laws, including Rule 10b-5 under the Exchange 
Act,\62\ proposed Rule 10b-21 would highlight the liability of persons 
that deceive specified persons about their intention or ability to 
deliver securities in time for settlement, including persons that 
deceive their broker-dealer about their locate source or ownership of 
shares and that fail to deliver securities by settlement date. We 
believe that a rule highlighting the illegality of these activities 
would focus the attention of market participants on such activities. 
The proposed rule would also provide a measure of predictability for 
market participants. We believe proposed Rule 10b-21 would have minimal 
impact on the promotion of price efficiency. We seek comment regarding 
whether proposed Rule 10b-21 may adversely impact liquidity, disrupt 
markets, or unnecessarily increase risks or costs to customers.
---------------------------------------------------------------------------

    \62\ 17 CFR 240.10b-5.
---------------------------------------------------------------------------

    In addition, we believe that the proposed rule would have minimal 
impact on the promotion of capital formation. 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. We believe that any such effect on capital 
formation is limited by the relatively few securities from corporate 
issuers that persist on the Regulation SHO threshold list \63\ and the 
fact that this persistence does not necessarily indicate abusive 
``naked'' short selling

[[Page 15383]]

or a deleterious effect on the cost of capital for the issuer.
---------------------------------------------------------------------------

    \63\ On an average day over a nine month period from May 1, 2007 
to January 31, 2008, approximately 50 securities had persisted on 
the threshold list for more than 17 days and had fails to deliver of 
10,000 shares or more. However, the majority of these securities are 
exchange traded funds which suggests that only a small number of 
corporate issuers are potentially affected.
---------------------------------------------------------------------------

    In the 2006 Proposing Release, we sought comment on whether the 
proposed amendments to Regulation SHO would promote capital formation, 
including whether the proposed increased short sale restrictions would 
affect investors' decisions to invest in certain equity securities. In 
response, commenters expressed concern about the potential impact of 
``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.\64\ Thus, to the 
extent that ``naked'' short selling and fails to deliver result in an 
unwarranted decline in investor confidence about a security, the 
proposed rule should improve investor confidence about the security. We 
note, however, that persistent fails to deliver exist in only a small 
number of securities and may be a signal of overvaluation rather than 
undervaluation of a security's price.\65\ In addition, we believe that 
the proposed rule could lead to greater certainty in the settlement of 
securities which should strengthen investor confidence in the 
settlement process.
---------------------------------------------------------------------------

    \64\ See, e.g., letter from Feeney.
    \65\ Persistent fails to deliver may be symptomatic of an 
inadequate supply of shares in the equity lending market. If short 
sellers are unable to short sell due to their inability to borrow 
shares, their opinions about the fundamental value of the security 
may not be fully reflected in a security's price, which may lead to 
overvaluation.
---------------------------------------------------------------------------

    We also believe that proposed Rule 10b-21 would not impose any 
burden on competition not necessary or appropriate in furtherance of 
the purposes of the Exchange Act. By specifying that abusive ``naked'' 
short selling is a fraud, the Commission believes the proposed rule 
would promote competition by providing the industry with guidance 
regarding the liability of sellers that deceive specified persons about 
their intention or ability to deliver securities in time for 
settlement, including persons that deceive their broker-dealer about 
their locate sources or share ownership and that fail to deliver 
securities by settlement date. The Commission requests specific comment 
on whether the proposed rule woul