[Federal Register Volume 63, Number 237 (Thursday, December 10, 1998)]
[Rules and Regulations]
[Pages 68175-68182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32587]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 140


Requests for Exemptive, No-Action and Interpretative Letters

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

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SUMMARY: The Commodity Futures Trading Commission (``CFTC'' or 
``Commission'') is adopting Rule 140.99, which establishes procedures 
for the filing of requests for the issuance of exemptive, no-action and 
interpretative letters from the Commission's staff. The Commission 
believes that implementation of these procedures will significantly 
assist the Commission, its staff and requesters by assuring a focused 
presentation of the guidance sought, the issues raised thereby, and the 
relevant legal authorities.

DATES: Effective January 11, 1999.

FOR FURTHER INFORMATION CONTACT: David M. Battan, Chief Counsel, 
Christopher W. Cummings, Special Counsel, or Helene D. Schroeder, 
Attorney-Advisor, Division of Trading and Markets, Commodity Futures 
Trading Commission, Three Lafayette Centre, 1155 21st Street, NW, 
Washington, DC 20581. Telephone: (202) 418-5450.

SUPPLEMENTARY INFORMATION:

I. Requests for Exemptive, No-Action and Interpretative Letters

    In the course of administering the Commodity Exchange Act (``Act'') 
\1\ and the rules, regulations and orders promulgated thereunder by the 
Commission,\2\ Commission staff receives written requests for advice 
on, or interpretation of, particular provisions of the Act or 
Commission rules and the application of those provisions to proposed 
transactions or activities. Where appropriate, Commission staff 
provides the relief, advice or guidance sought through the issuance of 
exemptive, no-action or interpretative letters (``Letters''), 
respectively.\3\
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    \1\ 7 U.S.C. 1 et seq. (1994).
    \2\ Commission regulations are found at 17 CFR Ch. I. et seq. 
(1998).
    \3\ These types of letters are proposed to be defined in Rules 
140.99(a)(1), (a)(2) and (a)(3), respectively, and each is discussed 
in Part II, below.
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    On January 22, 1998, the Commission published for comment Proposed 
Rule 140.99 (the ``Proposal'') \4\ to establish procedures for 
requesting Letters. As stated in the Proposal, although a procedural 
rule such as Rule 140.99 is not required to be published for comment, 
the Commission decided to seek comment in the belief that input from 
interested persons would assist it in fashioning a final rule.\5\ The 
comment period on the Proposal originally was due to expire on March 
22, 1998. To maximize public participation in this rulemaking process, 
the Commission extended the comment period for an additional thirty 
days,\6\ and the comment period closed on April 22, 1998. The input 
received was very helpful, and a number of changes were made to the 
Proposal following consideration of the comments.\7\
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    \4\ Requests for Exemptive, No-Action and Interpretative 
Letters, 63 FR 3285.
    \5\ See 63 FR 3287.
    \6\ Requests for Exemptive, No-Action and Interpretative 
Letters, 63 FR 14866 (March 27, 1998).
    \7\ The Commission received eight comment letters in response to 
the Proposal: two from registered futures commission merchants; two 
from commodity industry associations; one from a securities industry 
association; two from bar associations; and one from a law firm.
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    While the commenters generally were supportive of the Commission's 
intention to establish uniform procedures for persons requesting 
Letters, they expressed various concerns of which the most significant 
are discussed below. Before addressing the comments received and the 
final rules the Commission is issuing hereby, the Commission wishes to 
emphasize that under the new rules Commission staff will continue to be 
receptive to informal inquiries and to engage in discussions with 
industry participants, counsel, members of the public, and others, by 
telephone, in face-to-face meetings or otherwise, regarding the 
application of the provisions of the Act and the Commission's rules, 
with the caveat that any advice given in the context of those 
discussions does not bind the Commission or its staff.\8\ The 
Commission's goal in adopting new Rule 140.99 is to ensure that, where 
an issue has been framed and defined sufficiently that a request for a 
Letter is appropriate, proper procedures exist for submitting that 
request.
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    \8\ See Rule 140.99(e), which provides that no response to a 
request for a Letter is effective unless it is in writing, signed by 
appropriate Commission staff and transmitted in final form to the 
requester.
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II. Section-By-Section Analysis

A. Definitions--Section 140.99(a)

    The Proposal defined ``exemptive letter,'' ``no-action letter,'' 
and ``interpretative letter'' for purposes of Rule 140.99. Briefly 
stated, the Proposal defined: (1) an exemptive letter as involving a 
grant of exemptive relief by the staff of the Division of Trading and 
Markets or the Division of Economic

[[Page 68176]]

Analysis (each a ``Division'') pursuant to authority delegated to staff 
by the Commission; (2) a no-action letter as denoting the determination 
by staff of the Division of Trading and Markets or the Division of 
Economic Analysis not to recommend commencement of enforcement action 
if a proposed activity or transaction was conducted; and (3) an 
interpretative letter as conveying the advice or guidance of staff of 
the Division of Trading and Markets, the Division of Economic Analysis 
or the Office of the General Counsel concerning the application of 
provisions of the Act or Commission rules in the context of specific 
activities or transactions.
    In response to the comments, the Commission has modified the 
definitions somewhat. ``Exemptive letter'' is now defined to make clear 
that only the person on whose behalf an exemptive letter is sought may 
rely upon it and that an exemptive letter binds the Commission and its 
staff with respect to the relief provided. ``No-action letter'' is now 
defined to clarify that only the person on whose behalf a no-action 
letter is sought may rely upon the Letter and that a no-action letter 
binds only the staff of the Division (or the Office of the General 
Counsel) \9\ that issues the Letter. Finally, interpretative letter has 
been redefined to clarify that an interpretative letter binds only the 
Division that issues it (or the Office of General Counsel, is issued 
thereby). The definition of interpretative letter also now expressly 
provides that an interpretative letter generally may be relied upon by 
persons in addition to the person on whose behalf the interpretative 
letter was sought.\10\
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    \9\ The Commission also has modified the definition of no-action 
letter to reflect that the Office of the General Counsel may issue 
no-action letters in certain circumstances. Similarly, the 
Commission has modified the definition of interpretative letter to 
reflect the practice of the Divisions of Trading and Markets and 
Economic Analysis of issuing interpretations of statutory provisions 
when related to regulatory matters under their review.
    \10\ In the Proposal, the preamble, but not the text of the 
rule, stated that persons other than the recipient could rely on an 
interpretative letter.
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    The Commission is not adopting the recommendation of some 
commenters that no-action letters be accorded precedential value such 
that third parties may rely upon them without requesting their own 
Letters. The Commission likewise is declining to expand the class of 
persons who may rely on an exemptive letter to include persons not 
exempted by name in the Letter. The Commission continues to believe 
that, where a situation not covered by a rule is encountered on a 
repeated basis, the appropriate remedy is rulemaking. Letters generally 
address particular, fact-specific issues either not clearly addressed 
by relevant rules or otherwise requiring individualized review by 
Commission staff. It would not be appropriate to allow uninvolved third 
parties to rely on staff positions taken on the basis of different sets 
of facts. Of course, counsel may wish to consider Letters issued by 
Commission staff in advising their clients about particular courses of 
conduct. Moreover, if an industry participant or its counsel determines 
to seek its own Letter from Commission staff, prior Letters on similar 
issues are relevant and should be cited to staff.
    Some comments indicated that the commenters did not understand that 
Rule 140.99 does not apply to requests for exemption submitted pursuant 
to Section 4(c) of the Act.\11\ To make clear that exemption requests 
under Section 4(c) must be made directly to the Commission--and must 
comply with the requirements set forth in Section 4(c)--paragraph 
(i)(B) of Rule 140.99 provides that the rule ``shall not affect the 
requirements of, or otherwise be applicable to'' requests for exemption 
pursuant to Section 4(c) of the Act.
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    \11\ 7 U.S.C. 6(c) (1994). See footnote 5 of the Proposal (63 FR 
3285, n.5), in which the Commission stated that the proposed rule 
would govern requests submitted to and processed by Commission staff 
and would not apply to those circumstances under which requests must 
be submitted to and processed by the Commission itself (e.g., 
requests pursuant to Section 4(c) of the Act and any other instance 
in which exemptive authority has not been delegated to the Staff) 
The Commission went on to state that paragraphs (b), (c), (f) and 
(h) nevertheless provide some helpful guidance for persons making 
requests not within the scope of Rule 140.99.
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B. General Requirements--Section 140.99(b)

    Paragraph (b)(1) of the Proposal stated that the issuance of 
Letters is entirely within the staff's discretion and that the staff 
could deny or refuse to consider or respond to a request without 
explanation. While it was clearly not the intent of the Commission, 
commenters were concerned that this provision would allow staff to 
ignore requests. In response to these comments, the rule as adopted 
simply provides that issuance of Letters is within the Commission 
staff's discretion. While the Commission recognizes the importance of 
Letters to industry participants and their counsel, nothing in the Act 
or the Commission's rules requires Commission staff to issue Letters. 
Because the staff exercises its discretion to issue Letters within the 
constraints of its limited staffing and other resources, certain 
circumstances may arise in which as prompt a reply to a request as 
counsel would like becomes difficult or impossible. Moreover, in some 
limited instances the issuance of a Letter may not be justified from a 
legal or regulatory standpoint, or it may not be an appropriate 
resolution from a policy standpoint.
    Paragraph (b)(2), which sets forth the staff's right to reject or 
decline to respond to a request that does not comply with Rule 140.99, 
was adopted as proposed. In this connection, Commission staff will not 
issue a Letter in response to an oral request, and a Letter will not be 
issued in response to a tentative or ``draft'' request.
    As proposed and as adopted, paragraph (b)(3) states that a request 
must relate to a proposed transaction or activity and that, absent 
extraordinary circumstances, Letters will not be issued based upon past 
transactions or activities. This stricture is consistent with 
longstanding Commission staff policy. Commenters expressed concern that 
persons who become aware that ongoing activities raise issues under the 
Act or Commission rules would have no recourse under this provision. 
The Commission disagrees. In the absence of extraordinary 
circumstances, a Letter issued with regard to ongoing activities will 
be prospective in terms of its coverage (and will not cover past 
activities or transactions).\12\ Thus, a Letter will not ordinarily 
relieve the person for whose benefit it is issued from the consequences 
of non-compliance that pre-dates the Letter. Nevertheless, persons (or 
their counsel) who become aware that their activities are not in 
compliance with the Act or Commission rules are urged to contact the 
staff as soon as possible. Although the staff generally reserves the 
right to refer prior violations for enforcement action in appropriate 
situations, the good faith demonstrated by efforts to regularize non-
complying activities on a ``going forward'' basis will be carefully 
considered.
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    \12\ One commenter pointed out that Section 4(c) of the Act 
expressly provides for retroactive relief and asserted that Rule 
140.99(b)(3) is inconsistent with Section 4(c) in this respect. As 
noted earlier, the provisions of Rule 140.99 do not apply to 
requests for exemptions under Section 4(c). See also 63 FR 3285, 
n.5.
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    As proposed, paragraph (b)(4) states that a request must be made by 
the person seeking a Letter (or an authorized representative) and that 
Commission staff will not respond to requests made by or on behalf of 
unidentified persons. As adopted, the request is required to be made by 
or on behalf of the person on whose behalf a Letter is sought. Proposed 
paragraph

[[Page 68177]]

(b)(5)(i) would have required the request to set forth as completely as 
possible ``the particular facts and circumstances giving rise to the 
request. As adopted, this paragraph now requires the request to set 
forth as completely as possible ``all material facts and circumstances 
giving rise to the request.'' Proposed paragraph (b)(5)(ii) stated that 
Commission staff would not respond to a request based upon a 
hypothetical situation. In proposing this paragraph, the Commission did 
not intend to discourage requesters from presenting reasonably 
realistic alternatives.\13\ To make this clear, the rule as adopted has 
been modified to permit the request to include one or more alternative 
structures or fact situations, provided that the request complies with 
Rule 140.99 with respect to each alternative structure or fact 
situation.
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    \13\ Moreover, paragraph (c)(7), discussed below, permits 
requesters to ask for alternative modes of response.
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C. Information Requirements--Section 140.99(c)

    Paragraph 140.99(c)(1) as proposed and as adopted sets forth the 
required identifying information concerning the person on whose behalf 
a request is made and, where applicable, concerning the authorized 
representative if the requester is not making the request on his or her 
own behalf. Paragraph (c)(2) as proposed and as adopted requires that 
the requester indicate in the upper right-hand corner of the request 
the provision(s) of the Act and/or Commission rules to which the 
request relates.
    Proposed paragraph (c)(3)(i) would have required a person with 
knowledge of the facts to certify that the representations in the 
request are accurate and complete. Commission staff too often has 
found, after modest scrutiny of representations made in support of a 
request for a Letter, that those representations were substantially 
inaccurate. Moreover, during recent market volatility events, it 
appears that the actual facts in certain instances proved to be 
substantially different from those the registrant had previously 
represented in their filings and other communications with the 
Commission. The Commission hopes that the certification requirement 
will encourage requesters to use proper care in making factual 
representations relating to their requests, thus saving time and 
resources (of staff and of requesters) that otherwise would be expended 
making and responding to successive requests for additional or 
corrected information. Upon consideration of the comments, however, the 
Commission has modified the proposed text to make clear that the 
certification applies only to material statements of fact that are set 
forth in the request. While requesters have a responsibility accurately 
to analyze the legal issues surrounding their request, the 
certification requirement in paragraph (c)(3)(i) is limited to factual 
representations.\14\
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    \14\ Legal arguments must nevertheless be supported by the facts 
and warranted by law.
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    Proposed paragraph (c)(3)(ii) would have required an undertaking by 
the person making the certification required by paragraph (c)(3)(i) 
that the person for whose benefit the request is made will promptly 
supplement the request in writing at such time as a material 
representation relating to the request ceases to be accurate and 
complete. Comments indicated uncertainty as to who would be bound by 
the undertaking and whether the obligation to update information 
material to a request would continue after issuance of a Letter. The 
Commission has modified paragraph (c)(3)(ii) to clarify that the 
undertaking must be made by the person on whose behalf the Letter is 
sought, or that person's authorized representative, and that it 
requires only that the person who made the undertaking will ensure that 
someone informs Commission staff of changed circumstances (without 
specifying who should actually submit any supplement). The Commission 
has modified paragraph (c)(3)(ii) to clarify that the duty to update 
pursuant to the undertaking required by paragraph (c)(3)(ii) applies 
only from the time of the submission of the request until the issuance 
of the Letter.
    With respect to material changes of circumstances after issuance of 
a Letter, paragraph (c)(3)(ii) has been revised to make clear that the 
person on whose behalf the Letter is sought, or its authorized 
representative at the time, must notify Commission staff of the 
occurrence of such changes. The Commission notes that staff typically 
concludes Letters with a statement to the following effect:

    ``This letter is based upon the representations made to us. Any 
different, changed or omitted material facts or circumstances might 
render this letter void. You must notify us immediately in the event 
that the operations or activities of [the party on whose behalf the 
Letter was requested] change in any material respect from those as 
represented to us.''

    The comments addressing the next three paragraphs of the proposed 
rules overlapped significantly. Proposed paragraph (c)(4) would have 
required the request to indicate the type of Letter sought, to state 
why a Letter is needed, to identify the relevant legal and factual 
issues surrounding the request and to discuss the bases for issuance of 
the Letter. Proposed paragraph (c)(5) would have required the request 
to reference all relevant statutory, decisional and administrative 
authorities (favorable and otherwise). Proposed paragraph (c)(6) would 
have required identification of prior Letters issued by Commission 
staff in circumstances similar to the request (and any conditions 
imposed in those Letters).\15\ Some commenters expressed concern that a 
requirement of comprehensive exposition and discussion of issues, bases 
and authorities would result in excessive labor and expense on the part 
of the staff as well as the requesters. Commenters also stated that not 
all persons seeking Letters can afford experienced counsel or can 
afford to research relevant law and precedent, and they expressed 
concern that not all past Letters may be readily accessible.\16\
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    \15\ Letters are published from 1975 forward in the Commodity 
Futures Law Reporter, published by CCH Incorporated. Letters also 
are available from 1987 onward from the Westlaw research database of 
West Publishing Corporation and from 1989 onward from the Lexis 
database service of Mead Data Central, Inc.
    \16\ The Commission adopted Rule 140.98 in December 1992 
(effective January 25, 1993). That rule requires that all Letters be 
made available for inspection and copying (subject to 
confidentiality safeguards). Prior to the effectiveness of Rule 
140.98, in the absence of any specific requirements, the decision 
whether to make a Letter available for publication was subject to 
the discretion and policies of the various Commission staff. For 
example, the Division of Trading and Markets generally made 
available for publication only those Letters that it considered 
significant.
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    The Commission notes that it does not intend to impose a 
requirement, express or implied, that requests be submitted by counsel. 
Individuals and firms are invited to prepare and submit requests 
directly, or to engage counsel for that purpose, at their own option. 
The Commission intends that the staff will take into account the level 
of legal sophistication of the person submitting a request (including 
whether that person is represented by counsel) in determining whether 
the requirements of paragraphs (c)(4) through (c)(6) have been met.
    Likewise, in adopting Rule 140.99 the Commission does not intend to 
require excessively lengthy briefing of the relevant issues. However, 
the request is required to contain a full statement of the material 
facts, a concise and clear statement of the issues and a thorough 
examination of any law that would be applicable to those issues, with 
citations to the relevant authorities. Requesters

[[Page 68178]]

are not required to cite more than a representative selection of 
authorities on any issue to the extent that those authorities are 
cumulative.
    While paragraph (c)(4) has adopted essentially as proposed, 
paragraph (c)(5) as adopted makes clear that it seeks reference to 
``applicable provisions'' of the Act, Commission rules, and other 
authorities, and paragraph (c)(6) as adopted requires identification of 
prior Letters that are ``publicly available.'' \17\
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    \17\ If a letter is not generally available publicly (i.e., it 
has not been published by a third-party service), it need not be 
cited unless the requester was the recipient of that prior Letter.
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    Moreover, the requirements of paragraphs (c)(5) and (c)(6) should 
not be understood to require exhaustive citation and analysis where, 
for example, an issue raised by the request has been the subject of 
several substantially similar Letters. Rule 140.99(c)(6) as adopted 
states that citation of a representative sample of prior Letters is 
sufficient where a comprehensive recitation of prior Letters on a given 
topic would be repetitious or would not assist Commission staff in 
considering the request. A requester should exercise good judgment in 
presenting the request in the context of both the legal and regulatory 
requirements and the authorities that speak to the merits of the 
request.

D. Filing Requirements--Section 140.99(d)

    Proposed paragraph (d) called for requests to be written, signed 
and filed with the Director of the Division of Trading and Markets for 
routing to appropriate Commission staff. Several commenters asked the 
Commission to accept electronically filed requests, with one commenter 
including a proposed caveat that a separate manually signed request be 
required in the absence of an electronic signature mechanism. Other 
commenters urged that the Commission agree to accept draft requests and 
urged the Commission to make clear that it welcomes informal 
discussions and meetings in advance of (or even in the absence of) the 
submission of a formal request.
    As adopted, paragraph (d) differs from the Proposal only insofar as 
it permits submission of requests to the Director of the Division of 
Trading and Markets by electronic mail (as well as by post), provided a 
``hard copy'' is submitted shortly after an electronic mail submission 
in order to permit authentication. As stated above, in adopting Rule 
140.99 the Commission does not intend to discourage informal 
discussions, whether by telephone, by face-to-face meeting or 
otherwise. As further stated above, however, Commission staff will  not 
issue a Letter in response to an oral request, and a Letter will not be 
issued in response to a tentative or ``draft'' request.

E. Form of Staff Response--Section 140.99(e)

    Proposed paragraph (e) stated that the grant of any request for a 
Letter is not effective unless the response has been signed and 
transmitted in final form to the requester and that inaction on the 
part of Commission staff does not constitute approval of the request. 
The paragraph further permitted the staff to respond by endorsing the 
request or by another abbreviated written form of response. Several 
commenters encouraged the Commission to allow abbreviated responses to 
requests in appropriate cases, such as where the staff has no objection 
to the request and where no special conditions or additional 
precautions are warranted.
    Paragraph (e) has been adopted essentially as proposed, with minor 
word changes.\18\ To the extent that requests are adequately developed, 
articulated and complete, the Commission intends to encourage the use 
by the staff of abbreviated responses to requests where possible.\19\
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    \18\ The reference to ``responsible staff'' was changed to 
``appropriate staff.''
    \19\ In response to commenters' concerns, the Commission 
confirms that, when a Letter is issued by abbreviated or endorsed 
response to the request, a redacted version of the request letter 
will be made available for publication together with the Commission 
staff response unless the requester has sought confidential 
treatment under Rule 140.98(b) and confidential treatment has been 
granted for the period specified in that rule.
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F. Withdrawal of Requests--Section 140.99(f)

    As proposed, paragraph (f) would have permitted withdrawal of a 
request prior to issuance of a Letter only under specific 
circumstances: (1) where a written withdrawal request is submitted with 
a certification that the person seeking a Letter has determined not to 
proceed with the contemplated transaction or activity or that 
intervening events have rendered the request for a Letter moot; or 92) 
where confidential treatment has been sought under Rule 140.98 in 
connection with the request for a Letter and Commission staff has 
notified the requester that confidential treatment will be denied. 
Several commenters claimed that the proposed restrictions were 
unnecessary and were likely to cause more harm than benefit. They 
argued that withdrawal should always be permitted. Some were concerned 
that the proposed restrictions would severely discourage requests for 
Letters because a person seeking a Letter who changed his or her mind 
could neither withdraw the request nor proceed with the proposed 
transaction or activity while the request was pending. Other commenters 
suggested that the provision could effectively block lawful activity, 
either where the response to a request is delayed or where a requester 
and Commission staff disagree concerning a change in facts or whether 
an issue has become moot.
    Upon consideration of the comments, the Commission has determined 
to modify the proposed language of paragraph (f). As adopted, paragraph 
(f) now permits withdrawal of a request for a Letter by filing with 
Commission staff a signed written request for withdrawal that states 
whether the person on whose behalf the Letter was requested will 
proceed with the transaction or activity described in the request for a 
Letter. This change is designed to allow withdrawal of requests for 
Letters in appropriate circumstances beyond those enumerated in the 
Proposal. Paragraph (f) as adopted also now provides for the withdrawal 
from representation of the authorized representative of the person on 
whose behalf a Letter has been sought. The only requirement in such as 
event is that Commission staff be notified promptly of the change in 
representation. The requirement in the Proposal that requests for 
withdrawal of a Letter be accompanied by a certification has been 
eliminated in the final rule.

G. Failure To Pursue a Request--Section 140.99(g)

    Paragraph (g) as proposed and as adopted provides that, where a 
requester fails to respond within 30 days to a Commission staff request 
for additional information or analysis, the staff generally will issue 
a denial of the request for a Letter unless an extension of time has 
been granted. Two commenters suggested that the 30-day period should be 
tolled as soon as a requester timely asks for an extension of time or 
that the rule should provide for an automatic 30-day extension if 
timely requested. Because the Commission believes that it is within the 
discretion of the staff to grant extensions of time in appropriate 
circumstances, it has modified paragraph (g) to make clear that any 
extensions of time are within the staff's discretion.

[[Page 68179]]

H. Confidential Treatment--Section 140.99(h)

    Paragraph (h) as proposed and as adopted requires that, where 
confidential treatment is sought for a request, a separate request for 
such treatment must be submitted in accordance with Rule 140.98 or Rule 
145.9, as applicable.

I. Applicability to Other Sections--Section 140.99(i)

    As proposed and as adopted, paragraph (i) states that Rule 140.99 
does not affect the requirements of, or otherwise apply to, notice 
filings submitted where relief is claimed under Rules 4.5, 4.7(a), 
4.7(b), 4.12(b), 4.13(b) and 4.14(a)(8). As noted above, several 
commenters expressed perceived inconsistencies or conflicts between the 
provisions of proposed Rule 140.99 and the provisions for requesting 
exemption under Section 4(c) of the Act. In order to dispel such 
confusion, paragraph (i) as adopted also expressly excludes from Rule 
140.99 requests made pursuant to Section 4(c).

III. Related Matters

A. Regulatory Flexibility Act--Final Regulatory Flexibility Analysis

1. Introduction
    The Regulatory Flexibility Act (``RFA'') \20\ requires each federal 
agency that proposes and adopts rules to consider the impact of those 
rules on small entities \21\ that are subject to the agency's 
regulations. Pursuant to the provisions of the RFA, a federal agency is 
required to prepare an initial regulatory flexibility analysis to 
accompany any proposed rule that requires a general Notice of Proposed 
Rulemaking.\22\ A similar regulatory flexibility analysis must 
accompany the promulgation of the final rule.\23\ An agency is not 
required to prepare a regulatory flexibility analysis if the agency 
publishes in the Federal Register a certification that ``the rule will 
not, if promulgated, have a significant economic impact on a 
substantial number of small entities.''\24\
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    \20\ 5 U.S.C. 601 et seq. (1994).
    \21\ A small entity includes a ``small business'' as defined by 
an agency in consultation with the Office of Advocacy of the Small 
Business Administration. Id. at Sec. 601(6).
    \22\ The initial analysis must contain a description of the 
proposed rule's impact on small entities and any significant 
alternatives to the action ``which accomplish the stated objectives 
of applicable statutes and which minimize any significant economic 
impact of the proposed rule on small entities.'' Id. at Sec. 603.
    \23\ Id. at Sec. 604.
    \24\ Id. at Sec. 605(b).
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    In the preamble accompanying the Proposal, the Chairperson 
certified that Rule 140.99 would not have a significant economic impact 
on a substantial number of small entities.\25\ In support of this 
certification, the Commission stated that Rule 140.99 would remove a 
burden on all persons by whom (or on whose behalf) Letters are sought, 
regardless of size, by providing greater certainty to requesters as to 
the procedures to follow in seeking relief and advice. In proposed Rule 
140.99, the Commission also stated that the rule would provide 
Commission staff with the flexibility to accommodate requesters who 
lacked the financial resources to prepare a conforming request by 
accepting for consideration non-conforming requests, by providing 
guidance to the requester, or by other means. Because this 
certification was made, the Commission was not required to prepare an 
initial regulatory flexibility analysis.
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    \25\ 63 FR 3287.
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    While none of the commenters directly addressed the RFA, five of 
the comment letters raised issues within the scope of the RFA. 
Accordingly, the Commission has prepared this regulatory flexibility 
analysis to address these comments.
2. Analysis
    (a) Small Entities That May Be Subject to the Rule. Requests for 
Letters may be submitted by any person, including those persons who are 
subject to or potentially subject to the Commission's oversight. Some 
of these persons may be considered to be small entities within the 
meaning of the RFA. In this regard, the Commission has established a 
definition of ``small entities'' to be used in evaluating the impact of 
its Rules on such small entities in accordance with the RFA.\26\ In 
accordance with this definition, registered futures commission 
merchants, commodity pool operators (``CPOs''), leverage transaction 
merchants, large traders, and contract markets have been determined not 
to be small entities under the RFA.\27\ Agricultural trade option 
merchants similarly have been found not to be small entities under the 
RFA.\28\ With respect to persons registered as commodity trading 
advisors,\29\ introducing brokers \30\ and floor brokers,\31\ the 
Commission has stated that it would evaluate within the context of a 
particular rule proposal whether all or some of such registrants would 
be considered to be small entities, and, if so, the economic impact on 
them of the particular rule. Floor traders \32\ and CPOs exempt from 
registration \33\ also may be considered small entities under the RFA.
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    \26\ Policy Statement and Establishment of Definitions of 
``Small Entities'' for purposes of the Regulatory Flexibility Act, 
47 FR 18618 (April 30, 1982).
    \27\ Id.
    \28\ Trade Options on the Enumerated Agricultural Commodities, 
63 FR 18821 (April 16, 1998).
    \29\ 47 FR at 18620. See also Interpretation Regarding Use of 
Electronic Media by Commodity Pool Operators and Commodity Trading 
Advisors for Delivery of Disclosure Documents and Other Materials, 
62 FR 39104, 39114 (July 22, 1997); and Exemption for Commodity Pool 
Operators with Respect to Offerings to Qualified Eligible 
Participants; Exemption for Commodity Trading Advisors with Respect 
to Qualified Eligible Clients, 57 FR 34853, 34860 (Aug. 7, 1992).
    \30\ See e.g., Financial Reporting Requirements for Futures 
Commission Merchants and Introducing Brokers, 53 FR 4606, 4610 (Feb. 
17, 1988).
    \31\ 47 FR at 18620. See also Adverse Registration Actions and 
Other Registration Matters, 57 FR 23136, 23142 (June 2, 1992).
    \32\ See e.g., Registration of Floor Traders; Mandatory Ethics 
Training for Registrants; Suspension of Registrants Charged with 
Felonies, 58 FR 19575, 19588 (April 15, 1993).
    \33\ See, e.g., Commodity Pool Operators; Exclusion for 
Otherwise Regulated Persons From the Definition of the Term 
``Commodity Pool Operator''; Other Regulatory Requirements, 50 FR 
15868, 15881 (April 23, 1985).
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    In fiscal year 1997, the Office of Chief Counsel of the Division of 
Trading and Markets \34\ received 303 inquiries from registrants, 
persons exempt from registration, unregistered persons and members of 
the general public. Written responses were issued or other dispositions 
were made with respect to 277 of these inquiries.\35\ Many, but not 
all, of the responses took the form of Letters within the meaning of 
Rule 140.99. More than 55%, or 158, of these responses were provided to 
persons that are not small entities. The remaining responses were 
provided to persons that could, in the context of Rule 140.99, be 
classified as small entities as recognized by the Commission.
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    \34\ Historically, this Office has received and responded to the 
largest number of requests for Letters of any Office or Division of 
the Commission.
    \35\ Some of the responses were issued in fiscal year 1998.
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    Rule 140.99 requires all requesters, including both small and large 
entities, to follow uniform procedures when requesting Letters. Based 
upon past experience, it is expected, though not required, that most 
requests will be prepared by the legal counsel of the person on whose 
behalf a Letter is sought.\36\ In this regard, the type of skills 
required to submit a request for a Letter will not change under Rule 
140.99. No other compliance or

[[Page 68180]]

reporting requirements are imposed by Rule 140.99.
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    \36\ As the Commission noted above, ``it does not intend to 
impose a requirement . . . that requests be submitted by counsel.''
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    (b) Summary of the Issues Affecting Small Entities Raised by the 
Comments. Commenters argued that Rule 140.99 essentially would require 
that requests be exhaustively researched and contain a lengthy 
recitation of all relevant legal and factual issues and all legal 
authority, including all prior Letters on a given topic. Commenters 
claimed that such requirements are unnecessary for routine or basic 
requests and would entail significant costs to persons on whose behalf 
Letters are sought, including small entities, which may lack the 
library or staffing resources to prepare a conforming request. They 
added that persons seeking Letters would be required to hire 
specialized legal counsel to prepare their requests. Some commenters 
further claimed that the requirements would discourage requests for 
Letters because relief could be denied simply because the request did 
not conform to the requirements of Rule 140.99.
    Two commenters recommended that Rule 140.99 be modeled after 
comparable procedures adopted under Federal securities laws and 
regulations that provide that the writer should indicate why he thinks 
a problem exists, his own opinion in the matter and the basis for such 
opinion.\37\ With respect to Rule 140.99's requirements that all prior 
Letters and all relevant legal authority be identified, some commenters 
recommended that the Commission clarify that requesters would be 
required to identify only relevant precedent or only those relevant 
authorities of which they are aware through the exercise of reasonable 
diligence.
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    \37\ Securities Act Release No. 5127, 36 FR 2600 (Jan. 25, 
1971), and Securities Act Release No. 6269 (Dec. 5, 1980).
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    Some of the commenters also expressed concerns about the 
availability of prior Letters, especially older ones, and the burden on 
persons seeking Letters, including small entities, arising from a 
requirement to locate and identify prior Letters. In this regard, the 
commenters pointed out that the Commission was not required to make its 
Letters available for public inspection and copying before 1993, the 
effective date of Rule 140.98.\38\ They further claimed that Letters 
issued prior to 1987 are not available on any online database service 
and that it would be particularly onerous on all persons, including 
small entities, to conduct a manual search for such Letters. To address 
these concerns, one commenter recommended that the Rule be modified to 
permit requesters to affirm the scope of any prior research or to note 
in their requests the practical limitations placed on the scope of 
their research. Another commenter suggested that the Commission commit 
to publish widely its prior Letters and to publish promptly all Letters 
issued in the future. The same commenter also recommended that the 
Commission post all of its Letters on its Internet web site.
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    \38\ See supra note 16.
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    (c) Alternatives Proposed and Adopted. The Commission has 
considered the concerns expressed by commenters and, as stated above, 
has clarified that requesters are not required to provide an 
excessively lengthy recitation of all relevant legal authority 
(including prior Letters) in support of a request for a Letter. It is 
sufficient that requests contain a full statement of the material 
facts, a concise and clear statement of the issues and a thorough 
examination of any law that would be applicable to those issues, with 
citations to the relevant authorities. Similarly, and as also stated 
above, the Commission has clarified that requesters are not required to 
cite more than a representative selection of authorities on any issue, 
to the extent that those authorities are cumulative.
    To minimize the potential compliance burden on small entities, 
including those entities that are not represented by counsel, the 
Commission is reiterating that staff may accommodate persons who lack 
the financial resources to prepare a conforming request by accepting 
for consideration the non-conforming request as submitted, by providing 
guidance to the requesters, or by other means.
    To address commenters' concerns about the lack of public 
availability of relevant authorities, including prior Letters, the 
Commission intends that the staff take this fact into account when 
reviewing requests, particularly those that are submitted by small 
entities. The Commission also has undertaken a review of the 
feasibility of making the full text of Letters available at the 
Commission's Internet web site as one commenter has suggested.\39\
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    \39\ The Commission's web site (http://www.cftc.gov) currently 
contains a summary, but not the full text, of all Letters that were 
issued and made publicly available pursuant to Rule 140.98 
commencing December 24, 1994.
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    Other than these specific comments, commenters proposed no other 
alternatives short of abandonment of the Proposal. Given the goals 
sought to be achieved by Rule 140.99, including decreasing the burden 
on all persons seeking Letters, regardless of size, this alternative 
would not be feasible.

B. Paperwork Reduction Act

    When publishing final rules, the Paperwork Reduction Act of 1989 
(``PRA''), 44 U.S.C. 3501 et seq., imposes certain requirements on 
federal agencies (including the Commission) in connection with their 
conducting or sponsoring any collection of information as defined by 
the PRA. In compliance with the Act, this Federal Register release 
informs the public of: (1) The reasons the information is planned to be 
and/or has been collected; (2) the way such information is planned to 
be and/or has been used to further the proper performance of the 
functions of the agency; (3) an estimate, to the extent practicable, of 
the average burden of the collection (together with a request that the 
public direct to the agency any comments concerning the accuracy of 
this burden estimate and any suggestions for reducing this burden); (4) 
whether responses to the collection of information are voluntary, 
required to obtain or retain a benefit or mandatory; (5) the nature and 
extent of confidentiality to be provided, if any; and (6) the fact that 
an agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.
    The Commission previously submitted Rule 140.99 in proposed form 
and its associated information collection requirements to the Office of 
Management and Budget. The Office of Management and Budget approved the 
collection of information associated with this rule on March 30, 1998, 
and assigned OMB control number 3038-0049 to the rule. The burden 
associated with this specific final rule is as follows:
    Average burden hours per response: 7.
    Number of Respondents: 215.
    Frequency of response: On occasion.
    Persons wishing to comment on the information required by this 
final rule should contact the Desk Officer, CFTC, Office of Management 
and Budget, Room 10202, New Executive Office Building, Washington, DC 
20503 (202) 395-7340. Copies of the information collection submission 
to OMB are available from the CFTC Clearance Officer, 1155 21st Street, 
NW, Washington, DC 20581 (202) 418-5160.

List of Subjects in 17 CFR Part 140

    Authority delegations (Government agencies), Organization and 
functions (Government agencies).

    In consideration of the foregoing and pursuant to the authority 
contained in the Commodity Exchange Act and in particular section 
8(a)(5) of the Act, as amended, 7 U.S.C. 12(a)(5), the

[[Page 68181]]

Commission hereby proposes to amend Chapter I of title 17 of the Code 
of Federal Regulations as follows:

PART 140--ORGANIZATION, FUNCTIONS, AND PROCEDURES OF THE COMMISSION

    1. The authority citation for part 140 continues to read as 
follows:

    Authority: 7 U.S.C. 7a(j) and 12a.

    2. Section 140.99 is added to read as follows:


Sec. 140.99  Requests for exemptive, no-action and interpretative 
letters.

    (a) Definitions. For the purpose of this section:
    (1) Exemptive letter means a written grant of relief issued by the 
staff of a Division of the Commission from the applicability of a 
specific provision of the Act or of a rule, regulation or order issued 
thereunder by the Commission. An exemptive letter may only be issued by 
staff of a Division when the Commission itself has exemptive authority 
and that authority has been delegated by the Commission to the Division 
in question. An exemptive letter binds the Commission and its staff 
with respect to the relief provided therein. Only the Beneficiary may 
rely upon the exemptive letter.
    (2) No-action letter means a written statement issued by the staff 
of a Division of the Commission or of the Office of the General Counsel 
that it will not recommend enforcement action to the Commission for 
failure to comply with a specific provision of the Act or of a 
Commission rule, regulation or order if a proposed transaction is 
completed or a proposed activity is conducted by the Beneficiary. A no-
action letter represents the position only of the Division that issued 
it, or the Office of the General Counsel if issued thereby. A no-action 
letter binds only the issuing Division or the Office of the General 
Counsel, as applicable, and not the Commission or other Commission 
staff. Only the Beneficiary may rely upon the no-action letter.
    (3) Interpretative letter means written advice or guidance issued 
by the staff of a Division of the Commission or the Office of the 
General Counsel. An interpretative letter binds only the issuing 
Division or the Office of the General Counsel, as applicable, and does 
not bind the Commission or other Commission staff. An interpretative 
letter may be relied upon by persons in addition to the Beneficiary.
    (4) Letter means an exemptive, no-action or interpretative letter.
    (5) Division means the Division of Trading and Markets or the 
Division of Economic Analysis.
    (b) General Requirements. (1) Issuance of a Letter is entirely 
within the discretion of Commission staff.
    (2) Each request for a Letter must comply with the requirements of 
this section. Commission staff may reject or decline to respond to a 
request that does not comply with the requirements of this section.
    (3) The request must relate to a proposed transaction or a proposed 
activity. Absent extraordinary circumstances, Commission staff will not 
issue a Letter based upon transactions or activities that have been 
completed or activities that have been conducted prior to the date upon 
which the request is filed with the Commission.
    (4) The request must be made by or on behalf of the person whose 
activities or transactions are the subject of the request. Commission 
staff will not respond to a request for a Letter that is made by or on 
behalf of an unidentified person.
    (5)(i) The request must set forth as completely as possible all 
material facts and circumstances giving rise to the request.
    (ii) Commission staff will not respond to a request based on a 
hypothetical situation. However, a requester may set forth one or more 
alternative structures or fact situations for a proposed transaction or 
activity; Provided, That the request complies with this section with 
respect to each alternative structure or fact situation.
    (c) Information Requirements. Each request for a Letter must comply 
with the following information requirements:
    (1)(i) A request made by the person on whose behalf the Letter is 
sought must contain:
    (A) The name, main business address, main telephone number and, if 
applicable, the National Futures Association registration 
identification number of such person; and
    (B) The name and, if applicable, the National Futures Association 
registration identification number of each other person for whose 
benefit the person is seeking the Letter.
    (ii) When made by a requester other than the person on whose behalf 
the Letter is sought, the request must contain:
    (A) The name, main business address and main business telephone 
number of the requester;
    (B) The name and, if applicable, the National Futures Association 
registration identification number of the person on whose behalf the 
Letter is sought; and
    (C) The name and, if applicable, the National Futures Association 
registration identification number of each other person for whose 
benefit the requester is seeking the Letter.
    (iii) The request must provide the name, address and telephone 
number of a contact person from whom Commission staff may obtain 
additional information if necessary.
    (2) The section number of the particular provision of the Act and/
or Commission rules, regulations or orders to which the request relates 
must be set forth in the upper right-hand corner of the first page of 
the request.
    (3) The request must be accompanied by:
    (i) A certification by a person with knowledge of the facts that 
the material facts as represented in the request are true and complete. 
The following form of certification is sufficient for this purpose:

    I hereby certify that the material facts set forth in the 
attached letter dated ________ are true and complete to the best of 
my knowledge.
(name and title)-------------------------------------------------------

and
    (ii) An undertaking made by the person on whose behalf the Letter 
is sought or by that person's authorized representative that, if at any 
time prior to issuance of a Letter, any material representation made in 
the request ceases to be true and complete, the person who made the 
undertaking will ensure that Commission staff is informed promptly in 
writing of all materially changed facts and circumstances. If a 
material change in facts or circumstances occurs subsequent to issuance 
of a Letter, the person on whose behalf the Letter is sought (or that 
person's authorized representative at the time of the change) must 
promptly so inform Commission staff.
    (4) The request must identify the type of relief requested and 
Letter sought and must clearly state why a Letter is needed. The 
request must identify all relevant legal and factual issues and discuss 
the legal and public policy bases supporting issuance of the Letter.
    (5) The request must contain references to all relevant 
authorities, including applicable provisions of the Act, Commission 
rules, regulations and orders, judicial decisions, administrative 
decisions, relevant statutory interpretations and policy statements. 
Adverse authority must be cited and discussed.
    (6) The request must identify prior publicly available Letters 
issued by

[[Page 68182]]

Commission staff in response to circumstances similar to those 
surrounding the request (including adverse Letters), and must identify 
any conditions imposed by prior Letters as prerequisites for the 
issuance of those Letters. Citation of a representative sample of prior 
Letters is sufficient where a comprehensive recitation of prior Letters 
on a given topic would be repetitious or would not assist the staff in 
considering the request.
    (7) Requests may ask that, if the requested exemptive relief, no-
action position or interpretative guidance is denied, the staff 
consider granting alternative relief or adopting an alternative 
position.
    (d) Filing Requirements. Each request for a Letter must comply with 
the following filing requirements:
    (1) The request must be in writing and signed.
    (2) The request must be filed with the Director, Division of 
Trading and Markets, Commodity Futures Trading Commission, Three 
Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Request 
must be submitted electronically using the e-mail address 
[email protected]; Provided, That a properly signed paper copy of the 
request is provided to the Division of Trading and Markets within ten 
days for purposes of verification of the electronic transmission. The 
Director will route the request to the appropriate Division or the 
Office of the General Counsel.
    (e) Form of Staff Response. No response to any request governed by 
this section is effective unless it is in writing, signed by 
appropriate Commission staff, and transmitted in final form to the 
recipient. Failure by Commission staff to respond to a request for a 
Letter does not constitute approval of the request. Nothing in this 
section shall preclude Commission staff from responding to a request 
for a Letter by way of endorsement or any other abbreviated, written 
form of response.
    (f) Withdrawal of Requests. (1) A request for a Letter may be 
withdrawn by filing with Commission staff a written request for 
withdrawal, signed by the person on whose behalf the Letter was sought 
or by that person's authorized representative, that states whether the 
person on whose behalf the Letter was sought will proceed with the 
proposed transaction or activity.
    (2) Where a request has been submitted by an authorized 
representative of the person on whose behalf a Letter is sought, the 
authorized representative may withdraw from representation at any time 
without explanation, Provided, That Commission staff is promptly so 
notified.
    (g) Failure to Pursue a Request. In the event that Commission staff 
requests additional information or analysis from a requester and the 
requester does not provide that information or analysis within thirty 
calendar days, Commission staff generally will issue a denial of the 
request; Provided, however, that Commission staff in its discretion may 
issue an extension of time to provide the information and or analysis.
    (h) Confidential Treatment. Confidential treatment of a request for 
a Letter must be requested separately in accordance with Sec. 140.98 or 
Sec. 145.9 of this chapter, as applicable.
    (i) Applicability to Other Sections. The provisions of this section 
shall not affect the requirements of, or otherwise be applicable to:
    (A) Notice filings required to be made to claim relief from the Act 
or from a Commission rule, regulation or order including, without 
limitations, Secs. 4.5, 4.7(a), 4.7(b), 4.12(b), 4.13(b) and 4.14(a)(8) 
of this chapter; or
    (B) Requests for exemption pursuant to Section 4(c) of the Act.

    Issued in Washington, DC on December 2, 1998 by the Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 98-32587 Filed 12-9-98; 8:45 am]
BILLING CODE 6351-01-M