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SEC Adopts Interim Temporary Rule Requiring Short Sale Reporting
On October 15, 2008, the Securities and Exchange Commission (SEC) adopted an interim final
temporary rule requiring certain institutional investment managers to file information on Form SH
concerning their short sales and short positions in Section 13(f) securities, other than options. The
rule extends the reporting requirements established by the SEC in Emergency Orders dated
September 18, 2008, September 21, 2008 and October 2, 2008, with some important modifications.
The rule is effective immediately and will expire on August 1, 2009, unless the SEC acts to
continue or revise the rule and to extend the effective date.
TEMPORARY RULE 10A-3T
Beginning October 18, 2008, Rule 10a-3T under the Securities Exchange Act of 1933 requires
institutional investment managers to report short sales and short sale positions, including short
positions effected prior to September 22, 2008, to the SEC on Form SH. Form SH must be
filed by an institutional investment manager who, as of the end of the most recent calendar
quarter, has filed, or would be required to file, a Form 13F for the calendar quarter and who
has effected short sales in Section 13(f) securities (other than options) during a Sunday to
Saturday calendar week.1
Short Sales and Short Positions
Rule 10a-3T requires an institutional investment manager to report both short sales and short
positions. The term “short sale” is defined to mean any sale of a security that the seller does not
own or any sale that is consummated by the delivery of a security borrowed by, or for the account
of, the seller.2 “Short position” is defined in Rule 10a-3T to mean the aggregate gross short sales of
an issuer’s Section 13(f) securities (excluding options), less purchases to close out a short sale in
the same issuer. Under Rule 10a-3T, a reportable short sale position is not net of long position in
the issuer. The rule also provides that if a security is on loan and a bona fide recall is initiated
within two business days after the trade date, the person lending the security is deemed to own the
security for certain purposes under Regulation SHO, and such sale is not treated as a short sale.
Finally, options and short sales of options on Section 13(f) securities are not required to be reported
on Form SH; however, short sales resulting from the exercise of options contracts are reportable as
of the date of the exercise.3
No Filing Required
An institutional investment manager is not required to file Form SH to report short sales and short
sale positions in Section 13(f) securities where:
No short sales of a Section 13(f) security were effected during the reporting period covered by
the Form SH filing;
On each calendar day during the calendar week, the start-of-day short position, the gross
number of securities sold short during the day and the end-of-day short position each
constitute less than 0.25 percent of that class of the issuer’s Section 13(f) securities issued
and outstanding as reported on the issuer’s most recent annual, quarterly or current report
filed with the SEC pursuant to Section 13 of the Exchange Act, unless the manager knows or
has reason to believe the information contained therein is inaccurate, and the fair market
value of the start-of-day short position, the gross number of securities sold short during the
day and the end-of-day short position each are less than $10 million;4 or
A broker-dealer seeks to execute a customer order through a riskless principal transaction, and
a short sale results from a sale order of a customer who is net long the Section 13(f) security or,
a purchase order of a Section 13(f) security.
Filing Required, But No Sales or Positions Reported
If the institutional investment manager determines that a Form SH filing is otherwise required, but
the manager is not required to report short sales or short positions with respect to a particular issuer
because of the exceptions cited above, the institutional investment manager may disclose “N/A” in
the appropriate place on the form calling for information on the number of securities sold short or
regarding short positions.
TEMPORARY FORM SH
Timing and Nonpublic Nature
Form SH must be filed with the SEC on the last business day of each calendar week immediately
following the calendar week in which the institutional manager has effected the reportable short
sale. All Forms SH filed with the SEC will be nonpublic to the extent permitted by law.
Contents and Format of Form SH
Form SH requires reporting of the start-of-day short position, the gross number of securities sold
short during the day and the end-of-day short position in an issuer’s Section 13(f) securities. Form
SH must be filed in XML-tagged data format with the data file containing much of the information
previously required by the Emergency Orders to be included in the Information Table.
CHANGES FROM THE EMERGENCY ORDERS
Rule 10a-3T contains several significant modifications to the requirements in the Emergency
Beginning on October 18, 2008, Form SH must be filed by the last business day of the
calendar week following the calendar week in which short sales are effected. The Emergency
Orders required that the Form be filed on the first business day of the calendar week following
the calendar week in which short sales were effected
Form SH no longer requires filers to disclose the value of the securities sold short, the largest
intraday short position or the time of day of the largest intraday short positions.
The Emergency Orders did not require disclosure of existing or outstanding short positions
in Section 13(f) securities held before September 22, 2008. Under Rule 10a-3T, Form SH
filers will be required to report all short positions, including short positions effected prior
to September 22, 2008, when reporting the start-of-day short position, the gross number of
securities sold short during the day and the end-of-day short position.
Rule 10a-3T raises the de minimis threshold for filing and reporting short sales or short
positions from a fair market value of $1 million to a fair market value of $10 million.
Form SH must be filed in XML format, rather than in ASCII or HTML as permitted in the
In order to assist in the transition to Rule 10a-3T and modified Form SH, institutional investment
managers that are required to file Form SH on October 24, 2008 or October 31, 2008 must comply
with Rule 10a-3T, except:
They may exclude disclosure of short positions in Section 13(f) securities held before
September 22, 2008 from Form SH reports filed on either or both of those dates.5
They do not have to file Form SH in XML format. Instead, the institutional investment
manager may file Form SH on EDGAR in the same manner that the form was filed pursuant
to the Emergency Orders. Beginning with the calendar week ending November 1, 2008,
institutional investment managers will be required to report as specified in Rule 10a-3T and
the filer instructions on the SEC’s web site.