Table of Contents
SERIES 7 PREP | FINANCIAL REGULATION COURSES
Regulation SHO is the SEC's comprehensive regulatory framework governing short sales of equity securities — codified at 17 CFR Part 242, Rules 200 through 204 — adopted effective January 3, 2005 under the authority of Section 10(a) of the Securities Exchange Act of 1934. It establishes uniform national standards for the marking of short sale orders, the requirement to locate securities available for borrowing before executing a short sale, and the obligation to close out failure-to-deliver positions within specified timeframes. Regulation SHO was enacted primarily to address abusive naked short selling — the practice of selling securities short without first locating or arranging to borrow them, which can generate persistent failures to deliver at clearing and potentially harm issuers and investors — while preserving the legitimate economic functions of short selling as a mechanism for price discovery, hedging, and liquidity provision.
A short sale is a sale of a security the seller does not own — the seller borrows shares from a broker-dealer or institutional lender, sells them in the market, and subsequently repurchases shares to return to the lender, profiting if the price has declined and losing if the price has risen. Short selling serves several legitimate economic functions in well-functioning markets. It incorporates negative information into prices more efficiently than a market where only buyers can act on their views. It facilitates market making by allowing market makers to sell securities they do not own in response to customer buy orders, improving liquidity. It enables institutional investors to hedge long positions in correlated securities without selling the underlying holdings directly. And it provides the mechanism for arbitrageurs to close mispricings between related instruments.
Regulation SHO does not prohibit short selling — it regulates the process through which short sales are conducted to ensure that the mechanical requirements of securities delivery are met and that manipulative practices are prevented.
Rule 200 of Regulation SHO requires that every sell order be marked as either long, short, or short exempt. A sell order is marked long when the seller owns the security being sold and will deliver it. A sell order is marked short when the seller does not own the security or owns it but will not deliver the specifically owned shares. A sell order is marked short exempt when it qualifies for one of the specified exemptions from the short sale price restrictions under Rule 201.
Accurate order marking is the foundational requirement of Regulation SHO compliance because the marking drives the application of the locate requirement and the price restriction rules. A broker-dealer that incorrectly marks short sale orders as long — either inadvertently or to circumvent Regulation SHO requirements — commits a violation of the marking requirement regardless of whether any actual delivery failure results.
Rule 201 of Regulation SHO — adopted in February 2010 following the extreme market volatility of 2008 and 2009 — imposes a short sale price restriction that is triggered when the price of a security has declined by ten percent or more from the prior day's closing price during the current trading day. Once the circuit breaker is triggered, short sales in that security may only be effected at a price above the current national best bid for the remainder of that trading day and the following trading day.
This alternative uptick rule — modelled on the historical uptick rule that existed from 1938 until its elimination in 2007 but triggered only after a significant price decline rather than on every short sale — is intended to prevent short selling from accelerating a security's downward price movement during a period of severe stress. The rule does not apply to bona fide market making activities, odd lot transactions, and certain other specified transactions. FINRA and the exchanges publish the list of securities subject to the Rule 201 circuit breaker on their websites throughout the trading day.
Rule 203(b)(1) of Regulation SHO is the core operational requirement that directly addresses naked short selling. It prohibits a broker-dealer from accepting a short sale order in any equity security from another person — or effecting a short sale in an equity security for its own account — unless the broker-dealer has first obtained a locate — that is, either borrowed the security, entered into a bona fide arrangement to borrow the security, or has reasonable grounds to believe that the security can be borrowed so that it can be delivered on the settlement date.
The locate requirement must be satisfied and documented in writing prior to effecting any short sale. A broker-dealer satisfies the reasonable grounds standard for a locate by consulting an easy-to-borrow list — a list of securities that the broker-dealer or a third-party securities lender has identified as readily available for borrowing — provided the list is less than twenty-four hours old. For securities not on the easy-to-borrow list, the broker-dealer must obtain a specific locate from a securities lender confirming that the securities are available for borrowing.
The locate requirement applies to all equity securities without exception. The broker-dealer must maintain records of its locate sources and its compliance with the locate requirement to satisfy its books and records obligations under Exchange Act Rules 17a-3 and 17a-4.
Rule 203(b)(2) provides an exception from the locate requirement for short sales effected by a market maker in connection with bona fide market making activities in the security. This exception recognises that requiring market makers to locate borrowable shares before every short sale would impair their ability to immediately respond to customer buy orders in fast-moving markets, undermining the liquidity function market makers provide. The bona fide market making exception does not apply to directional short selling by market makers speculating on price declines rather than facilitating customer orders.
Regulation SHO defines threshold securities as equity securities with substantial persistent failures to deliver at a registered clearing agency. Specifically, a security becomes a threshold security when there are aggregate failures to deliver at the National Securities Clearing Corporation of ten thousand shares or more per security that equals at least half of one percent of the issuer's total shares outstanding for five consecutive settlement days. Once a security meets these criteria for five consecutive days, the relevant self-regulatory organisation — FINRA, NYSE, or NASDAQ — publishes it on a daily threshold securities list.
For threshold securities, Rule 203(b)(3) imposes additional close-out obligations. Participants in a registered clearing agency — primarily the clearing broker-dealers who are NSCC members — must close out fail-to-deliver positions in threshold securities by purchasing securities of like kind and quantity within thirteen consecutive settlement days after the trade date. If the fail-to-deliver position is not closed out within thirteen settlement days, the participant and any broker-dealer for whom it clears trades must pre-borrow shares — enter into a bona fide arrangement to borrow — before effecting any further short sales in that security until the fail position is actually closed out.
Rule 204 establishes the standard close-out requirements applicable to all equity securities — not just threshold securities. Under Rule 204, a clearing agency participant that has a fail-to-deliver position in any equity security at a registered clearing agency must close out that position by purchasing securities of like kind and quantity no later than the beginning of regular trading hours on the settlement day following the settlement date — for most equity securities, by the morning of T plus four.
If the fail-to-deliver position is not closed out by the required deadline, the clearing participant and any broker-dealers for whom it clears must pre-borrow shares before executing any additional short sales in that security until the position is closed. This pre-borrow requirement — sometimes called the penalty box — effectively prevents the accumulation of rolling fail-to-deliver positions by requiring participants with open fails to affirmatively secure borrowed shares before any additional short sales in the affected security.
Rule 204 provides different close-out timeframes for specific categories of transactions. Fail-to-deliver positions resulting from long sales — situations where the seller was genuinely long but failed to deliver for administrative or operational reasons — must be closed out by T plus four. Fail-to-deliver positions in threshold securities remain subject to the thirteen settlement day close-out period under Rule 203(b)(3) in addition to the Rule 204 standard requirements.
Naked short selling — selling short without borrowing or locating borrowable shares — is the practice that Regulation SHO was primarily designed to prevent. When a short seller sells shares without locating borrowable supply, a fail-to-deliver position results at settlement — the buyer does not receive the shares they purchased. Persistent large fail-to-deliver positions can harm issuers by creating apparent selling pressure in the stock without corresponding economic activity, harm buyers who paid for securities they did not receive, and destabilise market prices through phantom supply that is not backed by actual lending.
The locate requirement of Rule 203 addresses naked short selling by requiring that borrowable shares be identified before the short sale is executed — ensuring that if the short position cannot be covered by actual borrowed shares, the sale cannot proceed. The close-out requirements of Rule 204 address fails that occur despite locate compliance — operational failures, settlement processing delays, and situations where the located shares become unavailable — by requiring prompt correction rather than allowing fails to accumulate indefinitely.
FINRA conducts regular examinations of member broker-dealers for Regulation SHO compliance as part of its ongoing market surveillance and firm examination programmes. FINRA's Annual Regulatory Oversight Reports have consistently identified Regulation SHO compliance as an examination priority, with common deficiencies including inadequate locate procedures and supervisory systems, incorrect order marking, failure to maintain required locate records, and failure to implement the pre-borrow requirements triggered by open fail-to-deliver positions.
FINRA Rule 3110 requires member firms to establish and maintain written supervisory procedures specifically addressing Regulation SHO compliance — including the firm's procedures for obtaining locates, maintaining easy-to-borrow lists, monitoring threshold securities, implementing close-out requirements, and training relevant personnel. Firms that fail to establish adequate supervisory procedures for Regulation SHO face both FINRA disciplinary action for supervisory failures and potential SEC enforcement for underlying Regulation SHO violations.
Regulation SHO is tested on the Series 7 examination in the context of short selling mechanics, the locate requirement, the close-out requirement, threshold securities, and the regulatory framework governing equity market trading.
The key points to retain are these.
Regulation SHO — 17 CFR Part 242, Rules 200 through 204 — is the SEC's uniform framework governing short sales of equity securities, effective January 3, 2005 under Section 10(a) of the Securities Exchange Act of 1934. Rule 200 requires every sell order to be marked long, short, or short exempt. Rule 201 — the alternative uptick rule adopted in 2010 — restricts short sales in a security that has declined ten percent or more from the prior close to prices above the current national best bid for the remainder of that day and the following trading day.
Rule 203(b)(1) — the locate requirement — prohibits broker-dealers from accepting or effecting a short sale order unless the security has been borrowed, a bona fide arrangement to borrow has been entered, or reasonable grounds exist to believe the security can be borrowed for delivery on settlement date. The locate must be documented in writing before the short sale is effected. Rule 203(b)(2) provides a bona fide market making exception. Threshold securities are equity securities with aggregate fails-to-deliver at NSCC of ten thousand shares or more equal to at least half a percent of total shares outstanding for five consecutive settlement days — subject to enhanced thirteen-day close-out obligations under Rule 203(b)(3). Rule 204 requires clearing participants to close out all fail-to-deliver positions in any equity security by the beginning of regular trading hours on T plus four — the settlement day following settlement date — with failure to close out triggering a pre-borrow requirement blocking further short sales in the affected security until the fail is resolved. Naked short selling — selling without borrowing or locating borrowable shares — is the practice Regulation SHO primarily targets through its locate and close-out requirements. FINRA Rule 3110 requires member firms to maintain written supervisory procedures specifically addressing Regulation SHO compliance.
