U.S. exchanges and some brokers will be required for the first time to conduct coordinated trading tests to show they can recover from natural disasters or terrorist acts, according to a rule proposed by regulators.
The mandate, called Regulation Systems Compliance and Integrity, directs exchanges to strengthen their technology and instruct member firms to participate in tests to show they can sustain operations after a large disruption. The rule published last month covers testing, disaster preparedness and software development. It will govern 44 firms including 17 exchanges.
The Securities and Exchange Commission is seeking to limit technology breakdowns at venues handling stock, options and bond trades and ensure they can withstand malfunctions that could jeopardize markets. Regulators wrote the 373-page rule, known as Reg SCI, after the May 6, 2010, flash crash when the Dow Jones Industrial Average plunged 9.2 percent before recovering, and last year’s breakdowns that spoiled the initial public offerings by Bats Global Markets Inc. and Facebook Inc.
“It’s a warning shot,” Matt Samelson, founder of research firm Woodbine Associates Inc. in Stamford, Connecticut, said in a phone interview. “The rule says generally firms need to have more organization around how they’re administering and running their systems and testing. They’re saying, ‘We’re watching you, take notice, put your shop in better order.’”
The SEC must have the resources and staff to apply the rule uniformly, Samelson said. Initial compliance costs for organizations subject to the regulation and those that must conduct testing may be as high as $242 million, with another $191 million in annual costs, the SEC estimated.
The regulation would apply to exchanges, clearinghouses, 15 alternative trading platforms including 10 dark pools, systems that disseminate public quote and trade data, the Financial Industry Regulatory Authority, the Municipal Securities Rulemaking Board and others. Knight Capital Group Inc.’s loss of more than $450 million on Aug. 1 when it accidentally spewed orders in 150 stocks into the market drove the SEC to ask the public if the rule should also apply to large brokers, market makers and those handling retail orders.
Reg SCI will replace the SEC’s Automation Review Policy guidelines, developed in 1989 and 1991 after the 1987 market crash known as Black Monday, when the Dow average plummeted 23 percent. Codifying voluntary guidelines to ensure the resilience of exchanges and the broader market and expanding them to larger broker-owned dark pools will protect participants in the complex, interlinked network of competing venues, the SEC said.
Former SEC Chairman Mary Schapiro said in October that trading breakdowns resulted from the failure of “basic technology 101” rather than problems involving market structure and the multiplicity of public and private venues that emerged over the last decade.
“When you have a very interconnected set of executing venues, it does offer the problem of a domino effect,” William Adiletta, a partner at the technology practice at financial- services consulting firm Capco in New York, said by phone. “The industry knows we have to improve the confidence of people in our markets because of the failures we’ve had.”
The proposed rule requires firms to have written policies and procedures to ensure that systems supporting trading, clearing, order-routing and surveillance have sufficient capacity and remain available to their users. The technology must operate as intended, be secure from threats and promote fair and orderly markets. A review must be done at least once a year by objective personnel, the SEC said.
Exchanges will be required to tell an average of 150 member firms for the first time to participate in tests to make sure that trading continues through a disruption or can resume after a catastrophe such as a hurricane or terrorist act.
“This is part of making people understand it’s required, like stress tests on banks,” Larry Leibowitz, chief operating officer of NYSE Euronext, said in a telephone interview. “We have to prepare for the worst because when the worst happens and you’re not prepared, it’s too late.”
The decision to close markets during superstorm Sandy stemmed from concern that not enough firms had tested the New York Stock Exchange’s backup plan and that many brokers needed to run their own alternative plans to continue operating at the same time, Leibowitz said. Contingency plans work better when everyone isn’t implementing them at once, he said.
Not all brokers and trading firms show the same commitment to ensuring their execution and related systems are sound, Louis Pastina, executive vice president for NYSE operations, told the SEC in an October roundtable discussion about technology. The cycle of coding, testing and implementing software can vary greatly by firm, he said.
“It’s amazing to me how many times software gets introduced and firms don’t test with you,” he said at the time. “Whether we have test symbols in production or we run industry tests, it’s always the same firms that come in and test -- and those are the firms that generally don’t have issues. There’s a long list of firms that never show up.”
The rule will require firms subject to its authority to alert the SEC of important system changes and events such as disruptions, compliance issues and platform intrusions. Exchanges and other parties must spell out corrective actions and alert members about significant problems.
A delay would be allowed for some attacks, such as when hackers penetrated computer systems owned by Nasdaq OMX Group Inc. (NDAQ:US) in February 2011, if disclosure would increase the exchange’s vulnerability, the SEC said. That event didn’t affect Nasdaq’s trading computers, the regulator said.
There will probably be about 65 incidents a year that organizations subject to Reg SCI must report to regulators and 14 excluding intrusions they must tell customers about, the SEC said. The 28 firms in the Automation Review Policy inspection program in 2011 told the regulator about 175 incidents that year, or 6 each, it said. The new rule would expand the types of incidents that must be reported and ensure greater consistency by dictating what information must be shared.
“It gives us more certainty around gray areas in terms of which systems are included and what conditions we must report, not only to the SEC but also to customers,” Leibowitz said. “As long as the reporting doesn’t become too granular and remains primarily focused on trading technology, this is one of those cases where more clarity is better.”
One-time compliance costs for the 44 organizations subject to Reg SCI will be between $61.6 million and $176 million, with annual costs between $48.7 million and $125 million, according to the SEC’s estimates. Member firms and market participants may have to spend a total of $66 million a year to participate in business-disruption tests, the SEC said.
Reg SCI takes a step toward treating exchanges and private alternative trading systems or ATSs more similarly, Justin Schack, partner and managing director for market structure analysis at Rosenblatt Securities Inc., said by phone.
The proposed rule come as trading away from U.S. stock exchanges reached a high of 36.2 percent in the first quarter, compared with 32.8 percent last year, according to data compiled by Bloomberg. More than 14 percent of overall trading took place in dark pools in January and February, data compiled by Rosenblatt showed. NYSE Euronext (NYX:US) and Nasdaq OMX executives have said in recent years that dark pools should be subject to regulation more akin to rules for exchanges.
“If you’re asking the ATSs to behave in some respects the same way exchanges do, then the effect is a very small but still significant leveling of the playing field,” Schack said. Requiring dark pools to let subscribers know of similar types of outages and technical problems makes sense, he said.
Broker-dealers with dark pools will find Reg SCI’s requirements costly and broad, Robert Flatley, chief executive officer of CoreOne Technologies, a data-services company in New York, and former managing director at Deutsche Bank AG, said in a phone interview.
“The comprehensive nature of this and the surveillance and testing that will be required to put hand on heart and say, ‘We’re compliant with the policies and procedures’ will be expensive and tough,” Flatley said. While higher costs may limit the value of dark pools to their owners, those under the sway of Reg SCI may be able to use their compliance as a “competitive advantage” to gain more trading, he said.
Dark pools will be subject to Reg SCI if they trade 5 percent of daily volume in a single stock and 0.25 percent of total exchange-listed equities, or 1 percent of the average daily dollar volume across equities. The thresholds apply if reached in four of the previous six months.
The SEC said 10 dark pools would be subject to the regulation, based on data for the week of May 7, 2012. Those venues, including some that are larger than the smallest stock exchanges, accounted for about 87 percent of the dollar volume traded by alternative platforms that week, it said.
Platforms for equities not listed on exchanges will be subject to Reg SCI if they reach 5 percent of the average daily dollar volume. Two trading platforms meet the threshold, the SEC said. Venues for municipal and corporate debt securities will fall under the rule’s authority if they account for either 5 percent of average daily dollar volume traded or 5 percent of the number of transactions daily. The same three alternative trading systems would meet the volume threshold for municipal and debt securities, the SEC said.
Dark pools have become “profit engines” for their owners in recent years, Flatley said. “Brokers must make a call. Do I invest in having more compliance and monitoring of the systems or do I just not hit those thresholds?”
Those with more than 1 percent of total U.S. equities volume in February are owned by Credit Suisse Group AG, Goldman Sachs Group Inc., Barclays Plc, and UBS AG, according to a March 25 report from Rosenblatt. Knight Capital Group Inc.’s Knight Link, often called a dark pool, isn’t a registered ATS. It had 1.4 percent of total volume, the data show.
Fifteen U.S. pools tracked by Rosenblatt had more than 0.25 percent of volume traded in February. The company doesn’t compile data on the value traded by those venues.
Dan Mathisson, head of U.S. equity trading for Credit Suisse, declined to comment. About 123 million shares or 1.9 percent of U.S. equities volume changed hands in the Zurich- based bank’s Crossfinder pool in February, Rosenblatt said.
Bids Trading LP, which operates a dark pool, plans to submit a comment letter to the SEC, according to New York-based Chief Executive Officer Tim Mahoney. He said he’s not yet sure whether Bids will be subject to Reg SCI and declined to comment before the letter.
“It’s possible that some dark pools as they become subject to Reg SCI are going to have to clean up or amend their Form ATSs to make sure that what’s described actually reflects the way the dark pools works,” Schack said about a document they must submit to the SEC when they make material changes. “It will give the SEC better information about them than they have today, which would be good.”
Brokers including those running dark pools are already subject to a so-called market-access rule introduced in 2011 to reduce the risk of trading disruptions and improper activity. While the requirements overlap with some mandates in Reg SCI related to the integrity of technology systems, the SEC may push compliance with the access rule toward what’s demanded under Reg SCI, Flatley said.
Underscoring the breadth of the proposed rule, the SEC asked the public for comment on more than 850 questions. It asked whether NYSE should be allowed to offer firms a backup plan to trade on the exchange that is significantly different from its normal mode of operations. Questions ranged from whether numerical thresholds are appropriate for specific types of trading systems to whether the SEC should supply more precise requirements on trading software development.
The SEC also wants to know if the rule should cover security-based swap data repositories and execution facilities under the SEC’s jurisdiction as the agency writes rules to move more over-the-counter derivatives trades into clearinghouses.
“This is part of getting the whole ecosystem verified,” Flatley said of Reg SCI. “There will be a lot of work but it’s the right thing to do. If people want to get off the headlines and stop explaining why things went bad, they’ll have to have standards in the industry. It’s significant, but it’s time.”
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