SEC Approves New Rule and Rule Amendments Concerning Audit Trail and Trading Halt Requirements for ATSs that Trade Security Futures

INFORMATIONAL

Alternative Trading Systems that Trade Security Futures

Effective Date: March 31, 2003

Executive Summary

On January 27, 2003, the Securities and Exchange Commission (SEC) approved rule changes by NASD pertaining to coordinated surveillance, audit trails, and trading halts for Alternative Trading Systems (ATSs) that trade security futures. Specifically, these rule changes: (1) create new Rule 3115 to establish recordkeeping requirements for ATSs that trade security futures; and (2) amend NASD Rule 3340 to prohibit members (including ATSs) and associated persons from effecting any transaction or publishing a bid and/or unpriced indication of interest for a security future when there is a regulatory trade halt in effect. The rules are set forth in Attachment A. They become effective on March 31, 2003.

Questions/Further Information

Questions concerning this Notice may be directed to the Office of General Counsel, NASD Regulatory Policy and Oversight: Gary L. Goldsholle, Associate General Counsel, (202) 728-8104; or Patricia Albrecht, Assistant General Counsel, (202) 728-8026; or NASD Market Regulation Department, Futures Policy, De'Ana Dow, Director and Chief Counsel, (240) 386-5120.

Discussion

The Commodity Futures Modernization Act of 2000 (CFMA)¹ requires NASD, as a registered securities association, to meet several requirements with respect to preparing for the trading of security futures² by ATSs.³ Specifically, the CFMA requires NASD to have rules in place that require ATSs to: (1) have audit trails necessary to facilitate coordinated surveillance; and (2) coordinate trading halts with markets trading the underlying securities and markets trading related securities.⁴

Audit Trail Information

To meet the requirements of the CFMA with respect to audit trails, NASD has created new NASD Rule 3115, which requires ATSs to record and report audit trail information on security futures on a T+1 basis in the form in which NASD prescribes. Because there are no ATSs currently trading security futures, NASD has not yet prescribed the particular manner by which an ATS should report the audit trail information. An ATS that intends to trade security futures should contact the NASD Market Regulation Department, Futures Policy, for specific information on the format and means to report information. The reports will be designed to facilitate NASD's sharing of the information with members of the Intermarket Surveillance Group, an organization whose purpose is to coordinate surveillance among financial markets.

The requirements under new Rule 3115 are based upon the required elements of the audit trail rule under Regulation ATS Rule 302, the SEC's recordkeeping rule for ATSs, which requires ATSs to report and record similar information for other securities transactions.⁵ The similarity between these rules should allow ATSs to use their existing reporting templates, with few necessary adjustments, to record and report the audit trail information on security futures transactions. Rule 3115 requires that ATSs record and report, at a minimum, the following information:

• the date and time that the order was received;



• the security futures product name and symbol;



• the number of share contracts to which the order applies;



• an identification of the order as related to a program trade or an index arbitrage trade as defined in New York Stock Exchange Rule 80A;



• if the order is a buy or sell order;



• if the order is a market order, limit order, stop order, stop limit order, or other type of order;



• any limit or stop price prescribed by the order;



• the date on which the order expires and, if the time in force is less than one day, the time when the order expires;



• the time limit during which the order is in force;



• any instructions to modify or cancel the order;



• the date and time that the order was executed;



• unit price at which the order was executed; excluding commissions, mark-ups, or mark-downs;



• the size of the executed order;



• the identity of the ATS's subscribers that were intermediaries or parties in the transaction; and



• an account identifier that relates the order back to the account owner.

Rule 3115 also requires ATSs to preserve the records required by Rule 3115 in accordance with SEC Rule 17a-4(b), which requires preservation of records for at least three years, the first two years in an easily accessible place.⁶

Trading Halts

With respect to coordinated trading halts, NASD has amended Rule 3340, its trading halt rule. Currently, NASD Rule 3340 prohibits broker/dealers and associated persons from effecting a transaction or publishing a quotation, a priced bid and/or offer, an unpriced indication of interest (including "bid wanted" and "offer wanted" and name only indications), or a bid or offer accompanied by a modifier to reflect unsolicited customer interest, in any security as to which a trading halt is currently in effect. NASD has amended this rule by adding paragraph (b), which places on member firms (including ATSs) and associated persons the same restrictions regarding: (a) any future on a single stock when the underlying stock is subject to a regulatory trading halt; and (b) any future on a narrow-based securities index when one or more underlying securities that constitute 50 percent or more of the market capitalization of the index are subject to a regulatory trading halt. By limiting application of new NASD Rule 3340(b) to regulatory trading halts, NASD is excluding halts resulting from events such as an order imbalance or a systems failure.

Effective Date

These rule changes become effective on March 31, 2003.

¹ The CFMA was signed into law on December 21, 2000, Pub. L. No. 106-554, 114 Stat. 2763 (2000).

² Section 3(a)(55) of the Securities Exchange Act of 1934 ("Exchange Act") defines a "security future" as a contract of sale for future delivery of a single security or of a narrow-based security index. Security futures are defined as "securities under the Exchange Act, thus making the federal securities laws generally applicable to them." See Exchange Act Section 3(a)(10); 15 U.S.C. 78c(a)(10).

³ ATSs generally are systems that maintain a marketplace for bringing together purchasers and sellers of securities or otherwise perform the functions commonly performed by a securities exchange and do not perform selfregulatory functions. See Regulation ATS Rule 300(a), 17 CFR 242.300(a); Exchange Act Rel. No. 40760 (Dec. 8, 1998), 63 FR 70844 (Dec. 22, 1998).

⁴ Exchange Act Section 6(h)(5); 15 U.S.C. 78f(h)(5).

⁵ 17 CFR 242.302(c).

⁶ 17 CFR 240.17a-4(b).

Attachment A

New language is underlined; deletions are in brackets.

3100. BOOKS AND RECORDS, AND FINANCIAL CONDITION

3115. Requirements for Alternative Trading Systems to Record and Transmit Order and Execution Information for Security Futures

3300. TRADING

3340. Prohibition on Transactions, Publication of Quotations, or Publication of Indications of Interest During Trading Halts