[Federal Register: November 13, 1997 (Volume 62, Number 219)] [Notices] [Page 60860-60865] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr13no97-44] ----------------------------------------------------------------------- COMMODITY FUTURES TRADING COMMISSION Chicago Mercantile Exchange Petition for Exemptions From the Dual Trading Prohibition Set Forth in Section 4j(a) of the Commodity Exchange Act and Commission Regulation 155.5 AGENCY: Commodity Futures Trading Commission. ACTION: Notice of intent to condition and proposed order granting conditional exemptions from the prohibition on dual trading in seven affected contract markets. ----------------------------------------------------------------------- SUMMARY: For the reasons set forth in the Proposed Order Granting Conditional Dual Trading Exemptions (``proposed Order''), the Commodity Futures Trading Commission (``Commission'') intends to grant, subject to a stated condition, the petition of the Chicago Mercantile Exchange (``CME'' or ``Exchange'') for exemptions from the dual trading prohibition in Section 4j(a) of the Commodity Exchange Act (``Act'') and Commission Regulation 155.5 for its Live Cattle, Deutsche Mark, Japanese Yen, Swiss Franc and Eurodollar futures contracts and the option contracts on Eurodollar and S&P 500 futures.<SUP>1</SUP> Pursuant to the Act and Commission Regulation 155.5(d)(8)(C)(iii), CME may submit written supplemental data, views or arguments and will have the opportunity to make an oral presentation to the Commission before the Commission makes its final determination. --------------------------------------------------------------------------- \1\ The Commission is granting CME an unconditional exemption from the dual trading prohibition for its S&P 500 futures contract. An Order granting such exemption is being submitted for publication together with this Notice. DATES: If CME intends to make an oral presentation, it must submit its request in writing no later than ten days after receipt of this proposed Order. CME must submit any written supplemental data, views or --------------------------------------------------------------------------- arguments within 30 days of receipt of this proposed Order. ADDRESSES: CME's requests for oral presentation and submission of written supplements are to be sent to the Office of the Secretariat, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, N.W., Washington, D.C. 20581. FOR FURTHER INFORMATION CONTACT: Duane C. Andresen, Special Counsel, or Rachel Fanaroff Berdansky, Special Counsel, Division of Trading and Markets, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, N.W., Washington, D.C. 20581; telephone: (202) 418- 5490. SUPPLEMENTARY INFORMATION: A floor broker engages in dual trading when he or she executes a customer's order during the same trading session in which he or she executes, directly or indirectly, a trade in the same contract for his or her own account or an account in which he or she has an interest. Dual trading can afford floor brokers the opportunity to abuse customer orders if audit trail information and surveillance are insufficient to permit the detection of such abuses. Specifically, a dual trading floor broker can directly commit abuses of customer orders such as trading ahead or against those orders and also has an informational advantage for his or her personal trading.<SUP>2</SUP> Section 4j(a) of the Act and Regulation 155.5 prohibit dual trading and establish trade monitoring standards that must be met in order for contract markets to be exempted from the prohibition. --------------------------------------------------------------------------- \2\ The Commission has previously discussed in several instances, including its November 28, 1994 Report to Congress on Futures Exchange Audit Trails, the possible abuses attendant to dual trading. See also the Commission's Proposed Regulation Prohibiting Dual Trading by Floor Brokers, 56 FR 13025 (March 9, 1993). --------------------------------------------------------------------------- The Commission intends to issue the following proposed Order granting CME conditional dual trading exemptions pursuant to Section 4j(a) of the Act and Commission Regulation 155.5. In accordance with Regulation 155.5(d)(8), CME may submit to the Commission in writing any supplemental data, views or arguments within 30 days of receipt of this Notice and proposed Order. In addition, CME may request, in writing within ten days of receipt of this Notice and proposed Order, an opportunity to make an oral presentation to the Commission. If CME submits a request for an oral presentation, the Exchange will be notified by the Commission of the date and the terms under which CME may make such presentation. Public notice of such an oral presentation also will be provided in accordance with the requirements of the Government in the Sunshine Act, 5 U.S.C. 552b (Supp. I 1995). Proposed Order Granting Conditional Dual Trading Exemptions On October 20, 1993, CME submitted a Petition for Exemption from the Dual Trading Prohibition contained in Section 4j of the Act and Commission Regulation 155.5 in CME's Live Cattle, Deutsche Mark, Japanese Yen, Swiss Franc, British Pound, Eurodollar and S&P 500 futures contracts and the option contracts on the Deutsche Mark, Eurodollar and S&P 500 futures. The Exchange corrected that petition on December 1, 1993. Subsequently, the Exchange amended its petition on January 21, 1994. CME updated its petition on January 21, 1997, with respect to eight affected contract markets.<SUP>3</SUP> Notice of the public availability of the CME's updated exemption petition was published in the Federal Register on February 20, 1997.<SUP>4</SUP> --------------------------------------------------------------------------- \3\ Affected contract market means a contract market with an average daily volume equal to or in excess of 8,000 contracts for each of four quarters during the most recent volume year. Commission Regulation 155.5(a)(9). See Section 4j(a)(4) of the Act. As noted by the Commission in promulgating Regulation 155.5, a contract market trading on an exchange floor will be considered separate from a contract market in the same commodity trading a screen-based trading system. The Commission further stated that, while not excluding electronic trading from the dual trading prohibition, the Commission was retaining the flexibility to consider the matter further. See 58 FR 40335 (July 28, 1993). The Commission is not addressing screen- based trading in this proposed Order. Two contract markets included in the original petition, British Pound futures and options on Deutsche Mark futures, no longer are affected contract markets as defined in the Act and regulations. This proposed Order is not applicable to those two contract markets. As previously noted, this proposed Order also is not applicable to the S&P 500 futures contract market. \4\ 62 FR 7755 (February 20, 1997). The Commission did not address the Exchange's dual trading exemption petition in 1994 in large part because of the Exchange's prior representation that it intended to automate the entry of trade execution times by developing a handheld electronic trading terminal. In June 1994, the Commission was informed that the proposed handheld terminal would not be in place by the October 1995 deadline for compliance with the heightened audit trail standards set forth in Section 5a(b)(3) of the Act. Because CME had not sufficiently demonstrated that its existing audit trail system met current and future standards, the Commission required the Exchange to demonstrate its ability to meet the audit trail requirements using Commission-designed tests and, thus, deferred consideration of the Exchange's petition. Subsequent to evaluating the results of the tests, the Commission offered CME the opportunity to supplement its petition. --------------------------------------------------------------------------- Upon consideration of CME's petition, as supplemented, and other data and analysis, including, but not limited to: Exchange audit trail test results reconciling imputed times to [[Page 60861]] underlying trade documentation and verifying data on ``window sizes''; actions taken in response to the Commission's November 1994 Report to Congress on Futures Exchange Audit Trails, June 1995 Report on Audit Trail Accuracy and Sequencing Tests (``Audit Trail Report''), and August 12, 1996 Report on Audit Trail Status and Re-Test (``Audit Trail Re-Test Report''); Commission trade practice investigations and compliance reviews conducted in conjunction with rule enforcement reviews or other investigatory or surveillance activities;<SUP>5</SUP> --------------------------------------------------------------------------- \5\ A list of the specific documents considered in connection with this proposed Order will be made available to the Exchange upon request. Copies of any documents not originally furnished by CME also will be made available upon request. --------------------------------------------------------------------------- the Exchange's existing dual trading and top step trading restrictions; <SUP>6</SUP> --------------------------------------------------------------------------- \6\ Under CME Rule 552, adopted in 1991, dual trading is, with certain exceptions, prohibited in any contract month which is mature and liquid, i.e., a contract month by position in relation to the front month contract at any given point in time that has had during the prior six calendar months an average daily pit-traded volume of 10,000 or more contracts. In any such contract months, members may trade only for their personal accounts until they have executed a customer order and then may no longer execute personal trades in that contract month during that trading session. Under CME Rule 555, effective July 1993, a member may not, with certain exceptions, while standing on the top step, execute a trade or place an order for his personal account in any contract months subject to the CME Rule 552 dual trading restriction which are traded in the contract month where the member stands. --------------------------------------------------------------------------- the Division of Trading and Markets Memorandum dated October 28, 1997; and upon review of each element of CME's trade monitoring system and of CME's trade monitoring system as a whole, the Commission finds that the Exchange's trade monitoring system does not fully satisfy the requirements of Sections 5a(b) and 4j(a)(3) of the Act and Regulation 155.5 in that the audit trail component is deficient. The Commission finds that corrective actions are sufficient and appropriate to meet those standards. In addition, the Commission finds that, based on an analysis of the composition of trading (by transaction size and volume) of certain distant contract expirations and option markets, there is a substantial likelihood that the broad scope of the dual trading prohibition specified under Section 4j of the Act and Regulation 155.5, which applies to a contract market as a whole, would harm the public interest in hedging or price basing in less liquid months of the affected contract markets. Therefore, the Commission has determined to grant CME conditional exemptions from the dual trading prohibition of Section 4j of the Act and Regulation 155.5 in the seven affected contract markets. The Commission is granting the Exchange's petition subject to the Exchange taking the corrective action specified below and implementing and enforcing the dual trading restriction described in the Appendix to this proposed Order. The Commission has concluded that the proposed dual trading restriction, which imposes a prohibition on dual trading in actively traded months but has no impact on less actively traded back months, is appropriate as a method to deter dual trading-related abuses and other customer abuses. The Commission's limited restriction, as opposed to the statutory dual trading ban, strikes a balance between the need to preserve liquidity in certain low volume months and the need to protect customers from the potential abuses that are associated with dual trading. The Commission Hereby finds as follows: Components of Exchange's Trade Monitoring System Audit Trail System One-Minute Execution Time Accuracy The Exchange's audit trail system fails to record ``reliably accurate'' trade times in increments of no more than one minute in length as required by Section 5a(b)(2) of the Act, Regulation 1.35(g), and Appendix A to Regulation 155.5.<SUP>7</SUP> Specifically, the Exchange has not established for the seven affected contract markets that 90 percent or more of imputed trade times, as assigned by the Exchange's trade timing system, are reliable, precise, and verifiable as demonstrated by being imputed within a timing window of two minutes or less (``90 percent performance standard''). Thus, an impermissible amount of trade timing data, an integral part of an exchange's trade monitoring system, is not reliably accurate in accordance with that standard and thus negatively impacts the Exchange's surveillance systems and investigatory and disciplinary action programs. --------------------------------------------------------------------------- \7\ Commission Regulation 1.35(g) requires that ``[a]ctual times of execution shall be stated in increments of no more than one minute in length.'' Section 5a(b)(2) of the Act, among other things, codified that timing requirement by stating that an exchange's audit trail system shall, ``consistent with Commission regulation, accurately record the times of trades in increments of no more than one minute in length.'' Section II of Appendix A to Commission Regulation 155.5 requires that a contract market, in describing its audit trail system in a petition for exemption from the dual trading prohibition, ``[d]emonstrate the highest degree of accuracy practicable (but in no event less than 90% accuracy) of trade execution times required under regulation 1.35(g) (within one minute, plus or minus, of execution) * * * .'' In addition, the contract market must ``[d]emonstrate the effective integration of such trade timing data into the contract market's surveillance system with respect to dual trading-related abuses.'' For contract markets that impute trade execution times, Appendix A requires that the contract market provide a description of the trade imputation algorithm, ``including how and why it reliably establishes the accuracy of the imputed trade execution times.'' --------------------------------------------------------------------------- The Commission has made clear that a reliably accurate imputed trade execution time only can be demonstrated by a timing window that narrows the time assigned to the trade to a two-minute period within which the trade is most likely to have occurred. Even where an exchange can demonstrate a trade timing window of two minutes or less, it is not possible to determine where within that window, the trade occurred. This underscores the critical need for compliance with the 90 percent performance standard. CME's Regulatory Trade Timing System (``RTT'') imputes an execution time for every trade.<SUP>8</SUP> Trade times are imputed based upon entry and exit timestamps on order tickets; time and sales reports; times that the trades were submitted for clearing; trading card numbers and sequence of trades on trading cards; 15-minute bracket codes; manual execution times for certain types of trades; calculated differentials for spread trades; identification of spread legs and types of spread trades; and any available times resulting from electronic order entry or trading systems. Based on these data, RTT determines various time spans within which a trade is likely to have been executed and ultimately assigns an imputed execution time for the trade. --------------------------------------------------------------------------- \8\ An imputed timing system does not capture the actual trade execution time but derives a time from other timing and trade data. --------------------------------------------------------------------------- The audit trail tests designed and reviewed by the Commission and conducted by the Exchange in response to a November 23, 1994 Commission letter involved a determination of the consistency of imputed trade execution times with all underlying audit trail records and data. Based upon that process, trade timing accuracy and sequencing rates for CME's imputed system were computed.<SUP>9</SUP> In reviewing [[Page 60862]] the results of the test designed to evaluate trade timing accuracy, Commission staff determined that, although 90.4 percent of CME's trade times satisfied the standard for consistency with the underlying data, only 72 percent of those trade times had timing windows of two minutes or less and thus could be verified.<SUP>10</SUP> In March 1996, the Commission conducted a re-test of CME's audit trail system. Although 94.2 percent of CME's trades times satisfied the standard for consistency with the underlying data, only 79.5 percent of those trade times had timing windows of two minutes or less and thus could be verified. --------------------------------------------------------------------------- \9\ To the extent that the time imputed by a computer algorithm was consistent with required trade documentation, time and sequence data and time and sales information for the subject trade and surrounding trades, that time was deemed accurate. If that imputed time fell within a two-minute level of precision as measured by the size of the final time window determined by such algorithm, that imputed time was considered to be verifiable, reliable and precise. Thus, the Commission stated in its Audit Trail Report, ``[a]lthough 90 percent of CME trade times satisfied the standards [of consistency with underlying data] for Test I, available data do not permit sufficiently precise verification of the accuracy of all of these trade times.'' Audit Trail Report at 11. Under the 90 percent performance standard, only trade times assigned by the Exchange's imputed timing system within timing windows of two minutes or less are reliably accurate. As noted above, Commission staff deems accurate those trades for which the imputed trade times are consistent with all underlying audit trail records and data, as determined by manual review. When comparing windows data for accurate trades and all trades, the Division has found that a higher percentage of accurate trades are assigned imputed times that fall within windows of two minutes or less and thus meet the 90 percent performance standard. However, the resulting percentage difference between accurate and all trades generally has not exceeded one percent. In addition, since the use of all trades data facilitates exchange submission of timing windows percentages because such data do not have to be generated in conjunction with an accuracy test, which requires an analysis of extensive trade documentation, the Commission finds that the use of all trades data provides an acceptable basis for determining windows performance. \10\ In response to recommendations made in the Audit Trail Report, the Exchange modified its trading card procedures such that only six trades can be recorded on a card, trade data can be entered only on one side of the card, and a new card must be used with the change of each time bracket. The Exchange modified its reporting and enforcement procedures to supply members more promptly with information on audit trail inconsistencies and to require corrections that reflect actual events, to enforce more aggressively data recordation and submission requirements, including spread quote reporting and timing data, and to enforce more aggressively timestamping procedures for flashed orders. The Exchange also made a number of improvements to its trade timing system. Since 1995, the CME has required a trade submission indicator for executions of orders flashed upon receipt, used seconds in the imputed timing system, including seconds from order ticket timestamps, added exit timestamps to the imputed timing system, used order type information to time trades, and used the clearing receipt time in its timing system. The Exchange also made a number of programming improvements to its timing algorithm. CME declined to implement two Commission recommendations: that members record and use manual execution times for at least the first and sixth trades on trading cards and that the Exchange synchronize timestamp clocks across the floor and upgrade the clocks to record times to the second. --------------------------------------------------------------------------- Subsequent to the re-test, the Exchange provided windows data for all affected contract markets (including the S&P 500 futures market) in response to Commission requests. For December 10, 1996, the overall percentage of trades with timing windows of two minutes or less was 82 percent. The percentage of trades with timing windows of two minutes or less computed separately for each of the seven affected contract market ranged from 37 percent to 89 percent. For March 12, 1997, the overall percentage of trades with timing windows of two minutes or less was 83 percent and the percentages for the seven affected contract markets ranged from 62 percent to 87 percent. On June 30, 1997, the Exchange provided windows data for three additional trade dates selected at random by the Commission which showed that the overall percentage of trades with timing windows of two minutes or less ranged from 82 percent to 85 percent. The percentage of trades with timing windows of two minutes or less computed separately for each of the seven affected contract market ranged from 65 to 92 percent on May 28, 1997; 66 to 86 percent on June 5, 1997; and 60 to 88 percent on June 10, 1997. Thus, the Exchange has not demonstrated that its imputed trade execution times are sufficiently reliable, precise, and verifiable in that it has not established that 90 percent or more of such times are imputed within timing windows of two minutes or less.<SUP>11</SUP> --------------------------------------------------------------------------- \11\ The windows data percentages indicated for the trade dates December 10, 1996, through June 10, 1997, do not include windows data for the S&P futures contract market. As noted above, the Commission is issuing a separate order granting CME an unconditional dual trading exemption for the S&P 500 futures contract market. The Exchange submitted data indicating that 90 percent or more of the imputed trade times in its S&P 500 futures contract had timing windows of two minutes or less on all three dates selected by Commission staff using a random sampling method, as well as two prior dates selected by the Exchange based upon Commission timeframes. The Commission believes that, while timing windows data for all dates provided should be considered, the dates selected randomly by persons other than those affiliated with the Exchange should be accorded greater weight in determining whether an affected contract market attains the 90 percent performance standard. The windows data for the S&P 500 futures contract market demonstrates consistent compliance with the 90 percent performance standard. None of the Exchange's other affected contract markets demonstrated consistent compliance. --------------------------------------------------------------------------- The negative impact on the components of the Exchange's trade monitoring system resulting from its failure to satisfy the 90 percent performance standard is exacerbated because CME does not require the recordation of a member's personal and customer trades in sequence.<SUP>12</SUP> Given the absence of such a recordation requirement, reliably accurate trade times are essential for effective determination of the sequence of trades. Where the sequence of customer and personal trades is not determined, possible dual trading-related abuses, such as trading ahead of customer orders and trading against customer orders, could go undetected. --------------------------------------------------------------------------- \12\ Notably, although there are differences in various systems among the exchanges, the three other exchanges for which the Commission has granted unconditional exemptions from the dual trading prohibition require that customer and personal trades be recorded sequentially on a single trading document. Similar to CME, one of those exchanges, the Coffee, Sugar and Cocoa Exchange, Inc., also uses an imputed timing system to assign trade execution times. Such sequencing also can be achieved by recording personal and customer trades in sequence on one set of sequentially numbered trading documents. As the Commission noted in discussing the results of CME's first audit trail test, ``recordation of a member's personal and customer trades in sequence should be the Exchange's objective.'' Audit Trail Report at 14-15. Section 5a(b)(3) of the Act provides, among other things, that an exchange's audit trail system must record accurately and promptly essential data on all trades, including execution time, through a means that is adequately precise to determine the sequence of customer and personal trades, to the extent practicable as determined by the Commission by rule or order. --------------------------------------------------------------------------- Other Components of CME's Audit Trail System With regard to the requirement that trade data be provided continually to the Exchange in accordance with Section 5a(b)(3)(A)(ii) of the Act, exchange audit trail systems must provide trade data, including trade timing information, on a periodic, but not necessarily real-time, basis.<SUP>13</SUP> Such information also must be obtained in a timely manner. The Exchange requires that clearing members submit trade data for clearing no later than 60 minutes after the end of the last time bracket on the trading card or floor order ticket. CME's trade data, therefore, are provided periodically to the Exchange at no more than hourly intervals, which is continual. --------------------------------------------------------------------------- \13\ See Audit Trail Re-Test Report at 39. --------------------------------------------------------------------------- With regard to unalterability, as mandated by Section 5a(b)(3)(A)(i) of the Act, the Exchange's trade records are unalterable, since they are recorded on trading cards and order tickets in nonerasable ink. Trade corrections also are not permitted to obscure original data.<SUP>14</SUP> --------------------------------------------------------------------------- \14\ The Commission requires retention of a record of any cancellations, changes, or corrections to trades. Commission Regulation 1.35(d) and the Outtrade Interpretation, 54 FR 37004 (September 6, 1989). The Commission amended Regulation 1.35(d)(7), effective October 21, 1996, to require that the correction of erroneous information on trading records be accomplished in such a manner that the originally recorded information must not be obliterated or otherwise made illegible. 61 FR 42999 (August 20, 1996). In November 1996, CME amended its CME Rule 536 to comport with the Commission's amendment to Regulation 1.35(d)(7). --------------------------------------------------------------------------- [[Page 60863]] CME's imputed timing system, which uses data from sources other than the trader, as well as data provided by the trader, to derive times, also meets the Section 5a(b)(3)(A)(iii) standards for independence, to the extent practicable.<SUP>15</SUP> The Exchange's existing system uses, among other things, data generated by both buyers and sellers for personal trades, including trading card numbers and sequence of trades on trading cards, certain execution times required to be entered manually, entry and exit timestamps on order tickets, time and sales data and 15-minute bracket codes to impute trade execution times. --------------------------------------------------------------------------- \15\ See Audit Trail Re-Test Report at 40. --------------------------------------------------------------------------- The Exchange requires that personal trades be recorded in sequence, consistent with Commission regulations, by requiring that members record such trades in sequence on pre-numbered trading cards.<SUP>16</SUP> The Exchange adopted a single-sided trading card on which all personal buy and sell trades are required to be recorded sequentially in response to an Audit Trail Report recommendation. However, as noted elsewhere, the Exchange does not require the recordation of a member's personal and customer trades in sequence. Given the absence of such a recordation requirement, reliably accurate trade times are essential for effective determination of the sequence of trades. --------------------------------------------------------------------------- \16\ Commission Regulation 1.35(d)(2) requires that each member of a contract market recording purchases and sales on trading cards must record such purchases and sales in exact chronological order of execution on sequential lines of the trading card. --------------------------------------------------------------------------- CME enforces its audit trail requirements and integrates audit trail data into its surveillance system for dual trading-related abuses. However, because the Exchange's trade surveillance system incorporates into its data, including exception reports, an impermissible amount of imputed trade execution times that are not reliably accurate, the effectiveness of the Exchange's integration of audit trail data is diminished. As required by Section 5a(b)(1)(B) of the Act, CME's trade entry and outtrade resolution programs capture certain essential data on cleared trades, unmatched trades, and outtrades. Finally, with regard to broker receipt times, the Commission finds that it is not practicable at this time for CME to record the time that each order is received by a floor broker for execution. Immediately executable flashed orders, however, are in substantial compliance with the objectives of Section 5a(b)(3)(B) of the Act, as stated previously by the Commission in its Order on flashed orders and broker receipt times.<SUP>17</SUP> --------------------------------------------------------------------------- \17\ 60 FR 58049 (November 24, 1995). --------------------------------------------------------------------------- Physical Observation of Trading Areas CME's trade monitoring system satisfies the requirements of Section 5a(b)(1)(A) of the Act in that CME maintains and executes an adequate program for physical observation of Exchange trading areas and integrates the information obtained from such observation into its compliance programs. The Exchange conducts daily floor surveillance during the open and close on all affected contract markets and at random times during each trading day. CME also performs floor surveillance when warranted by special market conditions, such as exceptional volatility or contract expirations. Finally, the Exchange employs a video camera logging system in the interest rate quadrant on the upper trading floor.<SUP>18</SUP> --------------------------------------------------------------------------- \18\ Although primarily employed for dispute resolution, the 38 cameras run continuously throughout the trading day and may enable investigators to view virtually all activity in the quadrant to resolve irregularities detected by the Exchange's computerized surveillance system or to follow up on tips from members, clerks or floor surveillance staff. --------------------------------------------------------------------------- Recordkeeping System CME's recordkeeping system captures certain essential data on trades and uses information from the records and violations of recordkeeping requirements to bring appropriate disciplinary actions. However, the Exchange needs to improve member compliance with Regulation 1.35(j), in that only 83 percent of the trading cards selected for review by Division staff were submitted to the clearing member within 15 minutes following 30-minute trading intervals and timestamped promptly to the nearest minute following collection. In addition, because CME does not meet the 90 percent performance standard, the system captures an impermissible amount of trade timing data that is not reliably accurate. This circumstance is compounded by the fact that CME does not require the recordation of personal and customer trades in sequence. As a result, the Exchange's recordkeeping system is limited in its capability to capture essential data on the sequence of customer trades. CME generally conducts back office audits of trading cards and order tickets at each clearing member firm at least once a year for a representative sample of customer orders and personal trades. CME also uses a computerized tracking system to monitor member compliance daily with certain trade timing and sequencing requirements, regularly examines trading records during the course of investigations for possible recordkeeping violations, and uses information from these audits to generate investigations. The Exchange requires that the account identifier reflected on the floor order ticket relate back to the ultimate customer account. Surveillance Systems and Disciplinary Actions The inclusion of an impermissible amount of trade timing data that is not reliably accurate in the Exchange's trade monitoring system diminishes the capability of the Exchange's trade surveillance system to review trade data effectively, and as a result, possible dual trading-related abuses could go undetected. Further, the lack of reliably accurate trade timing data diminishes the capability of the Exchange's disciplinary program to bring appropriate disciplinary actions against violators. In other respects, the Exchange's trade surveillance system may be capable of reviewing and is used to review trading data on a regular basis to detect possible dual trading-related abuses and other customer order abuses. In addition, CME did bring disciplinary actions against offenders and issued meaningful penalties against violators. Therefore, CME has demonstrated the capability to use information generated by its trade monitoring and audit trail systems on a consistent basis to bring appropriate disciplinary action for violations relating to the making of trades and execution of customer orders as required by Sections 5a(b)(1)(C), (D) and (F) of the Act. Further, CME refers appropriate cases to the Commission. On a daily basis, CME reviews computerized surveillance reports generated by the Exchange's Automated Trade Surveillance system to detect possible instances of dual trading-related abuses and other trading abuses. All relevant trade data, including account numbers, are included in these reviews. Among the computerized exception reports generated by the Exchange and reviewed daily are those designed to identify such suspicious trading activity as trading ahead of a customer, trading against a customer, wash trading, and trading against a customer with a collaborator, as well as those designed to provide data on personal profit and loss, member dual trading and outtrade resolution. Once an investigation has been opened, the Exchange's Compliance Department can use video cameras, on a for cause basis, [[Page 60864]] to assist in the conduct of the investigation.<SUP>19</SUP> --------------------------------------------------------------------------- \19\ During 1996, the CME significantly expanded its video surveillance capability. The two cameras on the upper trading floor were replaced with ten cameras, and the single camera on the lower trading floor was replaced with seven cameras. All 17 are state-of- the-art ``pan, tilt and zoom'' professional grade cameras. --------------------------------------------------------------------------- During 1996, the Exchange initiated 429 investigations and/or inquiries into all types of trading-related abuses. Approximately 80 percent of the investigations opened and closed during 1996 were closed within the four-month standard set forth in Regulation 8.06. During that same period, the Exchange initiated 98 dual trading-related investigations and referred three of these investigations to a disciplinary action committee. During the period of January 1994 through December 1996, CME assessed substantial penalties in 14 disciplinary actions involving dual trading-related abuses. Commitment of Resources The Commission finds that CME meets the requirements of Section 5a(b)(1)(E) of the Act by committing sufficient resources for its trade monitoring system to be effective in detecting and deterring violations and by maintaining an adequate staff to investigate and to prosecute disciplinary actions. For fiscal year 1996, CME committed 99 personnel to the Exchange's Compliance, Market Surveillance and Audits Departments and reported its total self-regulatory costs to be $15,388,000. CME's reported volume for this period was 177,027,583 contracts, and the number of trades exceeded 16,000,000. Accordingly, the Commission Hereby Orders that: The Exchange must implement the following corrective action: achieve compliance with the 90 percent performance standard. The Commission further orders that: Until such time as the Exchange demonstrates that its trade monitoring system satisfies the relevant standards, the Exchange shall be subject to the following condition: Within 60 days from the effective date of a final Order, the Exchange must implement and enforce the limited dual trading restriction described in the Appendix to this proposed Order, which is less restrictive than the dual trading prohibition of Section 4j of the Act and Regulation 155.5. Such dual trading restriction currently would apply to the following affected contract markets: Live Cattle, Deutsche Mark, Japanese Yen, Swiss Franc and Eurodollar futures contracts and the option contracts on Eurodollar and S&P 500 futures. Accordingly, the Commission proposes to grant CME's Petition for Exemption, subject to the stated condition, from the dual trading prohibition for trading in its Live Cattle, Deutsche Mark, Japanese Yen, Swiss Franc and Eurodollar futures contracts and the option contracts on Eurodollar and S&P 500 futures. If, at any time, CME believes that it can demonstrate to the Commission's satisfaction that it meets, for an affected contract market subject to this Order, all of the standards set forth in this Order, including, but not limited to, those in Section 5a(b) and Regulation 155.5, the Exchange may petition for an unconditional exemption to the dual trading prohibition for that affected contract market. Unless otherwise specified, the provisions of this proposed Order shall be effective on the date on which it is issued as a final Order by the Commission, and the condition shall become effective as stated herein and shall remain in effect unless and until removed, as provided above, or revoked in accordance with Section 8e(b)(3)(B) of the Commodity Exchange Act, 7 U.S.C. 12e(b)(3)(B). Failure of CME to abide by the condition of a limited dual trading restriction will automatically cause the dual trading prohibition set forth in Section 4j of the Act and Regulation 155.5 to go into effect. If other CME contract markets become affected contract markets after the date this Order becomes final, the Exchange would be required, absent submission of a dual trading exemption petition, to restrict dual trading in those affected contract markets in accordance with the dual trading prohibition set forth in Section 4j of the Act and Regulation 155.5. Further, if CME demonstrates to the Commission's satisfaction that an affected contract market subject to this Order has ceased to meet the Regulation 155.5(a)(9) affected contract market threshold, that contract market no longer would be subject to this Order. Dated: November 7, 1997. By the Commission. Edward W. Colbert, Deputy Secretary. Appendix--Dual Trading Restriction a. Restriction A floor broker is prohibited from executing customer orders in an affected contract market month, as defined below, during the same pit trading session in which the floor broker executes directly, or initiates and passes to another member for execution, a transaction in any such affected contract market month for (1) the floor broker's own account, (2) any account in which the floor broker's ownership interest or share of trading profits is ten percent or more, (3) any account for which the floor broker has trading discretion, or (4) any other account controlled by a person with whom such floor broker is subject to trading restrictions under Section 4j(d) of the Act to the extent such section is applied by Commission regulation or order. b. Affected Contract Market Month (Volume) Affected contract market month means: (1) For each affected non- agricultural contract market, any contract market month with an average daily trading volume of 10,000 contracts or more as determined by, at the election of the Exchange, either (i) CME Rule 552 with respect to a contract month position or (ii) trading in the previous calendar month; and (2) For each affected agricultural contract market, any contract market month with an average daily trading volume of 10,000 contracts or more as determined by trading in the previous calendar month. For this purpose, daily trading volume means the total number of contracts sold (or bought) in any contract month of an affected contract market during a trading day, with the average computed as set forth above and excluding ex-pit transactions as permitted under contract market rules that have been made effective under the Act. There will be a two business day allowance at the beginning of each calendar month for computation and member notification purposes. c. Affected Contract Market Month (Front Month) Front month means, for each affected contract market, the month which is either the expiration or delivery month which is nearest to expiration or, at the Exchange's discretion, the expiration or delivery month which is next nearest to expiration when the contract month nearest to expiration is five business days or less from the first notice day or last trading day for cash settled contracts for futures contracts or the expiration date for futures options contracts. If a front month is not subject to a prohibition pursuant to paragraph b. above, then it shall, nonetheless, be an affected contract market month and be subject to a prohibition unless, on the basis of historical data, that front month reasonably can be expected to have an average daily trading volume of less than 500 contracts. d. Exceptions Dual trading shall be permitted under exceptions contained in CME Rule 552 or other exceptions consistent with Commission Regulation 155.5(c)(4) in accordance with Exchange rules which the Commission has permitted to go into effect pursuant to Section 5a(a)(12)(A) of the Act and Regulation 1.41. Dissenting Opinion of Commissioner Barbara Pedersen Holum on the Disposition of the Chicago Mercantile Exchange's Dual Trading Petition Section 4j(a)(3) of the Commodity Exchange Act requires the Commission to exempt a contract market unconditionally from the dual trading prohibition of Section [[Page 60865]] 4j(a) of the Act upon finding that the trade monitoring system satisfies the requirements of Section 5a(b) of the Act by effectively detecting and deterring dual trading-related abuses. I dissent from the Commission's proposed Order granting the CME a conditional exemption in seven affected markets. Based on information provided to the Commission, I find that the CME's trade monitoring system as a whole effectively detects and deters dual trading abuses and therefore accomplishes the intended objectives of the Act. Additionally, in 1991 the CME implemented a dual trading restriction as part of its trade monitoring system which the Commission approved. The Commission has reviewed the CME's enforcement of that restriction over the past six years and found it to be effective. Therefore, I find that CME's trade monitoring system, including its dual trading restriction, meets the standards for an unconditional exemption from the dual trading prohibition. [FR Doc. 97-29892 Filed 11-12-97; 8:45 am] BILLING CODE 6351-01-P
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