August 28, 2009
The application of the proposed rule is not clear in the context of a short sale order at the open or a market at the open order. A short trade which is executed at the open does not impact the concerns raised by a bear raid or a similar improper short selling activity. I strongly urge that you clarify in the adopting release that there should be no restrictions on a short sale order which is placed as a market on open or market order to be executed at the open. Such short sales should participate in the opening cross trade like any other sale. Any restrictions on this process would impose unfair transaction costs on these orders, reduce liquidity and increase uncertainty while providing no protection against the concerns which the new rule is intended to address.