Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules 3285

1 7 U.S.C. § 1 et seq. (1994).

2Commission regulations are found at 17 C.F.R.

Ch. I et seq.

3These types of letters are proposed to be defined

in Rule 140.99 (a)(1), (a)(2), and (a)(3), respectively,

and each is discussed in Part b, below.

4By contrast, since 1971, the Securities and

Exchange Commission (‘‘SEC’’) has required

conformity with certain procedures by persons

submitting requests for no-action or interpretative

letters. See Securities Act Release No. 5127, 36 FR

2600 (Jan. 25, 1971) (prescribed procedures for

requests under the Securities Act of 1933, Securities

Exchange Act of 1934, Public Utility Holding

Company Act of 1935, Trust Indenture Act of 1939,

Investment Company Act of 1940 and Investment

Advisers Act of 1940). Some of these procedures

have been modified or supplemented by SEC staff.

See, e.g., Securities Act Release No. 6253, 45 FR

72644 (Oct. 28, 1980) (institution of abbreviated

response procedures by Division of Corporation

Finance); and Securities Act Release No. 6269 (Dec.

5, 1980) (institution of seven-copy requirement for

requests to Division of Corporation Finance).

5The proposed rule governs requests submitted to

and processed by Commission staff. In certain

circumstances, however, requests must be

submitted to and processed by the Commission

itself. For example, where exemptive authority has

not been delegated to the staff, exemptive relief

must be granted by Commission order (e.g., under

Section 4(c) of the Act, 7 U.S.C. § 6(c) (1994)). The

Commission intends that persons making

exemption requests of it should comply with the

requirements of the applicable section of the Act or

Commission rules, regulations or orders, although

paragraphs (b), (c), (f) and (h) of the proposed rule

provide some useful guidance for such requests.

Comments should be mailed,

preferably in five copies, to the Office of

the Secretary, Consumer Product Safety

Commission, Washington, D.C. 20207–

0001, or delivered to the Office of the

Secretary, Consumer Product Safety

Commission, Room 502, 4330 East-West

Highway, Bethesda, Maryland 20814;

telephone (301) 504–0800. Comments

also may be filed by telefacsimile to

(301) 504–0127 or by email to cpscos@cpsc.gov. Comments should be

captioned ‘‘ANPR for Bunk Beds.’’ All

comments and submissions should be

received no later than April 7, 1998.

Dated: January 15, 1998.

Sadye E. Dunn,

Secretary, Consumer Product Safety

Commission.

[FR Doc. 98–1457 Filed 1–21–98; 8:45 am]

BILLING CODE 6355–01–P

COMMODITY FUTURES TRADING

COMMISSION

17 CFR Part 140

Requests for Exemptive, No-Action

and Interpretative Letters

AGENCY: Commodity Futures Trading

Commission.

ACTION: Proposed rule.

SUMMARY: The Commodity Futures

Trading Commission (‘‘Commission’’) is

proposing new regulations to establish

procedures for the filing of requests for

the issuance of exemptive, no-action

and interpretative letters from the

Commission’s staff.

DATES: Comments on the proposed rule

must be received on or before March 23,

1998.

ADDRESSES: Comments on the proposed

rule should be sent to Jean A. Webb,

Secretary, Commodity Futures Trading

Commission, Three Lafayette Center,

1155 21st Street, N.W., Washington,

D.C. 20581. Comments may be sent by

facsimile transmission to (202) 418–

5528, or by e-mail to secretary@cftc.gov.

Reference should be made to ‘‘Rule

Proposal Re: Requests for Exemptive,

No-Action, and Interpretative Letters.’’

FOR FURTHER INFORMATION CONTACT:

Christopher W. Cummings, Special

Counsel, or Helene D. Schroeder,

Attorney-Adviser, Division of Trading

and Markets, Commodity Futures

Trading Commission, Three Lafayette

Centre, 1155 21st Street, N.W.,

Washington, D.C., 20581. Telephone:

(202) 418–5450.

SUPPLEMENTARY INFORMATION:

I. Requests for Exemptive, No-Action

and Interpretative Letters

A. Background

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 receive

written requests for advice on or

interpretation of particular provisions of

the Act or Commission rules to

proposed conduct or transactions. If

appropriate, Commission staff provide

the advice or guidance sought through

the issuance of exemptive, no-action or

interpretative letters (‘‘Letters’’).3

Currently, there are no Commission

rules setting forth procedures for

requests for Letters.4

The Commission is of the view that

establishment of uniform procedural

rules governing these requests will

significantly assist the Commission and

its staff by assuring a focused

presentation of the guidance sought, the

issues raised thereby, and relevant

precedent. The Commission is therefore

now proposing uniform procedures for

the filing of requests for exemptive, noaction or interpretative letters. These

procedures are intended to elicit from

the outset the information that staff will

need to evaluate a request, and to

minimize staff resources expended in

seeking additional information.

Letters generally should be requested

from (and, if appropriate, issued by)

Commission staff in instances where the

need for guidance or clarification of a

rule’s applicability arises from relatively

routine circumstances. The Commission

believes that the best mechanism for

handling novel or complex issues,

significant gaps in regulatory coverage,

relief from regulatory requirements or

initiatives for regulatory reform

generally is the notice and comment

rulemaking process or, where

appropriate, exemptive action by the

Commission itself after notice and

public comment. This is especially true

where a perceived issue is likely to

affect a large number of persons or

entities. Accordingly, the Commission

reminds registrants, counsel and the

public that it is receptive to public and

industry input (including, for example,

petitions for rulemaking actions and

petitions for Commission exemptive

action or other orders) in the continuing

process of adapting its regulatory framework to changing market circumstances.

The Commission also notes that,

notwithstanding the requirements for

Letters set forth herein, registrants, other

industry participants, counsel and

members of the public should feel free

to seek information from Commission

staff in those situations where they do

not require no-action relief, or a formal

interpretation of statutory or regulatory

provisions.

Although not required to do so (see II.

Related Matters, below), the

Commission invites public comment on

this proposal.

B. The Proposed Rule

1. Definitions

Paragraph (a) of the proposed rule sets

forth definitions for exemptive, noaction and interpretative letters. The

term ‘‘exemptive’’ letter is defined as a

written grant of relief to a specified

person from the applicability of a

specific provision of the Act or a

Commission rule, regulation or order.

Exemptive letters may be issued by

Commission staff only in those

situations where: (a) the Commission

itself has exemptive authority; and (b)

that authority has been delegated to

staff.5

A ‘‘no-action’’ letter is defined as a

written statement that staff of a specific

division will not recommend

enforcement action to the Commission if

a proposed transaction is undertaken or

a proposed activity is conducted. A noaction letter represents the position of

only the division issuing it and is

binding only upon that division and not
3286 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules

6Statutory interpretations are issued by staff of

the Office of the General Counsel. Requests for

interpretations of rule provisions will be assigned

on a case-by-case basis to staff of the Division of

Trading and Markets, the Division of Economic

Analysis or the Office of the General Counsel.

7Where charts or diagrams are likely to facilitate

the staff’s understanding of the relevant facts,

requesters are encouraged to submit such materials

with their initial correspondence.

8 In proposing to codify the authority of its staff

to reject non-conforming requests, the Commission

is not proposing to alter the staff’s current practice

of declining to respond to requests in other

circumstances, such as when legal, policy or

practical considerations make it inappropriate to

respond to the merits of a request. See paragraph

(b)(1).

on the Commission or other divisions.

Further, a no-action letter is only

effective with respect to the person or

persons to whom it was issued.

An ‘‘interpretative’’ letter refers to

written advice or guidance with respect

to the interpretation of a specific

provision of the Act or a specific

Commission rule, regulation or order,

which advice or guidance is provided in

the context of a proposed transaction or

activity. These letters are usually issued

by the staff of a particular division of

the Commission or the Office of the

General Counsel and, unless otherwise

noted, reflect only the views of the

division or the Office of the General

Counsel.6 Unlike no-action letters (or

exemptive letters), an interpretative

letter can be relied upon by persons

other than those to whom the letter was

issued, but it is binding only upon the

Commission staff unit issuing it, and not

upon the Commission itself.

Issuance of Letters is entirely within

the discretion of Commission staff. A

request may be denied, or staff may

refuse to consider a request, without

explanation. See paragraph (b)(1) of the

proposed rule.

2. General Requirements

Paragraph (b) of the proposed rule sets

forth the general requirements for

requests for Letters. All requests must

relate to a specific proposed activity or

transaction and must set forth as

completely as possible the particular

facts and circumstances giving rise to

the request.7 The proposed rule codifies

the policy adhered to by Commission

staff of not providing responses to

requests based on hypothetical

situations. The request may be

submitted by the person seeking a Letter

or by that person’s authorized

representative. In any case, the person

on whose behalf a Letter is sought must

be identified. Consistent with current

practice, Commission staff will not

respond to requests submitted on behalf

of unnamed persons.

If the Commission were to adopt the

proposed rule, Commission staff would

expect all requests for Letters to comply

with the rule’s requirements. A request

that does not comply with the rule as

adopted may be rejected by Commission

staff without further analysis.8

3. Information Requirements

Requests for Letters should contain

the information set forth in paragraph

(c). Specifically, each request should

identify the requester’s name, main

business address, telephone number,

and if applicable, National Futures

Association registration identification

number as well as corresponding

information concerning any other

persons on whose behalf the Letter is

being sought. The request must also

provide the name, address and

telephone number of a contact person

from whom Commission staff may

obtain additional information if

necessary.

Paragraph (c)(2) of the proposed rule

requires that the specific section

number of the Act and/or Commission

rule, regulation or order to which the

request relates be set forth in the upper

right-hand corner of the first page of the

request. This requirement will facilitate

the proper routing of the request within

the Commission.

Paragraph (c)(3) requires that all

requests for exemptive, no-action or

interpretative letters be accompanied by

a certification that the representations

contained in the request are true and

accurate, along with an undertaking to

supplement the request in the event any

material fact changes or ceases to be

true. The requester must make a

complete and reliable presentation of

the facts relevant to a request. A

certification requirement is intended to

assure that requesters fully review the

facts and keep Commission staff advised

of changed circumstances, without the

need for repeated requests by staff for

supplemental information.

Paragraph (c)(4) of the proposed rule

requires that each request specify the

particular type of Letter being sought

along with a discussion of the reasons

why the requester needs a Letter. In this

regard, the request should identify not

only the specific concerns underlying

the proposed transaction or activity

giving rise to the request, but also the

legal or public policy reasons for

granting the request. Failure to frame an

identifiable issue or problem and a

reasonable justification for the relief or

interpretation sought will be grounds for

rejection of a request.

Paragraph (c)(5) of the proposed rule

requires that requests make reference to

all relevant authority, including the Act,

Commission rules, regulations and

orders, relevant case law, and any

administrative decisions on the issue. In

this regard, the request must identify

and distinguish all adverse authority.

If Commission staff have previously

issued a Letter in circumstances similar

to those set forth in the request,

paragraph (c)(6) requires that the request

identify the prior Letter along with the

conditions, if any, that were imposed by

the division issuing the Letter.

Requesters and their counsel must

exercise due diligence in identifying

and assembling the relevant authorities,

including prior Letters of Commission

staff.

Under paragraph (c)(7) of the

proposed rule, it would be appropriate

in a request Letter to ask for alternative

relief if the primary relief requested is

denied.

4. Filing Requirements

Paragraph (d) of the proposed rule

establishes the procedures for filing

requests for Letters. Specifically,

paragraph (d)(1) requires that each

request be made in writing and signed.

‘‘Draft’’ requests for Letters will not be

considered.

Pursuant to paragraph (d)(2), the

request must be filed with the Director

of the Division of Trading and Markets,

who will then forward the request to the

appropriate division within the

Commission. Under ordinary

circumstances the Division of Trading

and Markets and the Division of

Economic Analysis will issue no-action

letters, and the Office of the General

Counsel will issue statutory

interpretations. Interpretative letters

concerning rules or regulations will be

referred either to one of the Divisions or

to the Office of the General Counsel

depending upon the issue to be

addressed.

The requirement that all requests be

in writing codifies current agency

practice. Oral requests for Letters will

not be recognized.

Commenters specifically are

requested to address whether the rule

should permit requests to be filed

electronically.

5. Form of Staff Response

Paragraph (e) of the proposed rule

provides Commission staff with

flexibility as to the level of detail

necessary for a staff response to a

request for a Letter. Paragraph (e) affords

Commission staff the option of

providing a responsive letter in an

abbreviated or endorsement format that
Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules 3287

9This procedure is followed by the SEC’s

Divisions of Corporation Finance and Investment

Management. The abbreviated procedure as adopted

by the Division of Corporation Finance is set forth

in Securities Act Release No. 6253, supra note 4.

10Commission staff field numerous telephone

inquiries from the public and provide information

and guidance as appropriate. These proposed rules

are not intended to alter this practice. However,

while statements made during those conversations

are intended to be helpful, they are not binding on

the staff or the Commission.

11See Precious Metals Associates, Inc. v. CFTC,

620 F.2d 900 (1st Cir. 1980).

12For example, a request for relief under Rule

4.7(a) notwithstanding participation by a person

who is not a qualified eligible participant (‘‘QEP’’)

may become moot if the proposed participation

becomes able to meet the QEP criteria.

13 It is hoped that the provision in paragraph

(c)(7) allowing for requests for relief in the

alternatives should eliminate any perceived need

for this practice.

merely sets forth the staff’s position and

does not contain a detailed recitation of

the facts. In such cases, the Letter would

provide that it is based on the facts and

representations set forth in the request

and thus would incorporate by reference

those facts and representations. Use of

this abbreviated format, where

appropriate, may lessen the burden on

Commission staff in responding to

requests for Letters.9 The Commission

requests public comment on whether

and in what circumstances it should

utilize this abbreviated procedure. As set forth in paragraph (e), no grant

of any request governed by the proposed

rule shall be effective unless it is in

writing signed by responsible

Commission staff and has been

transmitted in final form to the

requester. Oral indications from staff are

not binding and should not be relied

on.10 Likewise, it is highly

inappropriate for a requester to state in

a request letter that the requester will

assume relief has been granted and will

proceed with the proposed transaction if

the requester does not receive a negative

response from Commission staff by a

certain date. Failure by staff to respond

to a request for a Letter does not

constitute staff approval of the

request.11

6. Withdrawal of Requests

Paragraph (f) of the proposed rule

makes clear that any withdrawal of a

request for a Letter may be

accomplished only if: (1) the requester

certifies in writing that the person

making the request or on whose behalf

the request has been made has

determined not to proceed with the

contemplated transaction or that

intervening events have rendered the

request moot; 12 or (2) the requester has

sought confidential treatment in

accordance with Rule 140.98 and

Commission staff has determined that

confidential treatment should not be

granted (in which case Rule 140.98

permits the requester to withdraw

within 30 days of being so notified). The

proposed rule is not intended to modify

or affect the provisions of Rule 140.98. In permitting withdrawal in limited

circumstances only, the proposed rule is

intended to eliminate the past practice

of certain requesters of submitting

requests (often in draft form) and then

withdrawing them if it appeared likely

that an adverse response would be

received.13

Although the goal of the proposed

rule is that initial requests will be as

complete and thorough as possible,

Commission staff from time to time will

need to seek additional information

from requesters in order to process a

request. Where Commission staff asks

for supplemental information or

analysis, the requester should respond

as quickly as practicable. Paragraph (g)

of the proposed rule provides that an

adverse response generally will be

issued where the requester fails to

provide additional information or

analysis within 30 days of receiving a

request for the same from Commission

staff, unless an extension is granted by

Commission staff considering the

request.

7. Confidential Treatment

Paragraph (h) of the proposed rule

makes clear that where confidential

treatment is sought, it must be requested

separately, in conformity with Rule

140.98 or Rule 145.9 as applicable.

These sections pertain, respectively, to

requests for confidential treatment of:

(a) the request for a Letter as well as the

Letter issued in response; and (b)

information submitted to the

Commission which may be sought

under the Freedom of Information Act,

5 U.S.C. 552.

8. Applicability to Other Sections

Paragraph (i) of the proposed rule

makes clear that the rule would not alter

existing provisions of the Act or

Commission rules, regulations or orders

(such as Rules 4.5, 4.7 and 4.12(b))

under which specified exemptive relief

is available upon the filing of a notice

of claim of (or eligibility for) the

particular exemption.

II. Related Matters

A. Administrative Procedure Act

The Administrative Procedure Act, 5

U.S.C. 553(b), sets forth an exemption

from the generally applicable noticeand-comment requirement for informal

rulemaking where the rules at issue

concern agency organization, procedure

or practice. Although the rule proposed

herein pertains exclusively to agency

procedures and practice, the

Commission is interested in receiving

comment from the public on the

proposal and, accordingly, is publishing

the proposal for notice and public

comment.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act

(‘‘RFA’’), 5 U.S.C. 601 et seq., requires

each federal agency to consider in the

course of proposing substantive rules,

the effect of those rules on small

entities. The proposed rule makes clear

that requests may be made by any

person, including those that would

constitute ‘‘small entities’’ within the

meaning of the RFA. The uniformity

mandated by the rule will provide

greater certainty to requesters as to the

procedures to follow in seeking relief or

advice and, to this extent, the rule

removes a burden on all requesters,

regardless of their size.

Additionally, the Commission has

built maximum flexibility into the

operation of the rule by making it clear

that Commission staff ‘‘may,’’ but are

not required to, decline to respond to a

request that does not meet the

requirements of the rule. See paragraph

(b)(2). When a non-conforming request

is submitted by a person who lacks

adequate financial resources to retain

counsel (or in other circumstances

where strict application of the rule

would be inequitable), Commission staff

may accommodate the requester by

accepting the non-conforming request,

by providing guidance to the requester

in the proper formulation and filing of

the request, or by other means.

The Chairperson, on behalf of the

Commission, hereby certifies, pursuant

to 5 U.S.C. § 605(b), that the action

taken herein will not have a significant

economic impact on a substantial

number of small entities.

C. Paperwork Reduction Act

When publishing proposed rules, the

Paperwork Reduction Act of 1995 (Pub.

L. 104–13 (May 13, 1995)) imposes

certain requirements on federal agencies

(including the Commission) in

connection with conducting or

sponsoring any collection of

information as defined by the

Paperwork Reduction Act. In

compliance with the Act, the

Commission, through this rule proposal,

solicits comments to:

(1) Evaluate whether the proposed

collection of information is necessary

for the proper performance of the

functions of the agency, including the

validity of the methodology and
3288 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules

assumptions used; (2) evaluate the

accuracy of the agency’s estimate of the

burden of the proposed collection of

information including the validity of the

methodology and assumptions used; (3)

enhance the quality, utility and clarity

of the information to be collected; and

(4) minimize the burden of the

collection of the information on those

who are to respond, including through

the use of appropriate automated,

electronic, mechanical or other

technological collection techniques or

other forms of information technology;

e.g., permitting electronic submission of

responses. The Commission has submitted this

proposed rule and its associated

information collection requirements to

the Office of Management and Budget. The burden associated with this

proposed rule, is as follows: Average burden hours per response: 7.

Number of respondents: 215.

Frequency of response: 1.3.

Persons wishing to comment on the

information that would be required by

this proposed/amended rule should

contact the Desk Officer, CFTC, Office of

Management and Budget, Room 10202,

NEOB, 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 7 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) of the Act, as

amended, 7 U.S.C. 12(a), the

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 proposed to be

added to read as follows:

§ 140.99 Requests for Exemptive, NoAction and Interpretative Letters.

(a) Definitions. For the purpose of this

section:

(1) Exemptive letter means a written

grant of relief from 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 Commission staff when the

Commission itself has exemptive

authority and that authority has been

delegated by the Commission to the

Division in question. (2) No-action letter means a written

statement from the staff of a Division of

the Commission 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

person or persons who requested such

letter. A no-action letter represents the

position of only the Division that issued

it and is applicable only with respect to

the particular circumstances and

binding only with respect to parties

addressed by the letter. A no-action

letter does not bind the Commission

itself or any other division thereof. (3) Interpretative letter means written

advice or guidance from Commission

staff (binding only upon the staff unit

providing the advice or guidance and

not upon the Commission itself) and

may take the form of: (i) Written advice or guidance from

the staff of a particular Division of the

Commission or the staff of the Office of

the General Counsel with respect to the

interpretation of a specific provision of

a Commission rule, regulation or order

in the context of a proposed transaction

or a proposed activity; or (ii) Written advice or guidance from

the staff of the Office of the General

Counsel with respect to the

interpretation of a specific provision of

the Act.

(4) Letter means an exemptive, noaction or interpretative letter. (5) Division as used in this section

means the Division of Trading and

Markets or the Division of Economic

Analysis. (b) General requirements—(1)

Issuance of Letters is entirely within the

discretion of Commission staff. A

request may be denied, or staff may

refuse to consider or respond to a

request without explanation. (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 activity or a proposed

transaction. Absent extraordinary

circumstances, Commission staff will

not issue a Letter based upon past

transactions or activities.

(4) The request may be made by a

person seeking a Letter or by an

authorized representative of such

person. 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 the particular

facts and circumstances giving rise to

the request.

(ii) Commission staff will not respond

to a request based on a hypothetical

situation.

(c) Information requirements. Each

request for a Letter must comply with

the following information requirements:

(1)(i) A request made by the person

seeking a Letter must contain:

(A) The name, main business address,

main telephone number and, as

applicable, the National Futures

Association registration identification

number of such person; and

(B) The name and, as applicable, the

National Futures Association

registration identification number of

each other person for whom the

requester is seeking the Letter.

(ii) When made by an authorized

representative of the person seeking a

Letter, the request must contain:

(A) The name, main business address

and main business telephone number of

the representative;

(B) The name and, as applicable, the

National Futures Association

registration identification number of the

person seeking a Letter; and

(C) The name, and as applicable, the

National Futures Association

registration identification number of

each other person for whom 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 numbers of the

particular provisions of the Act and/or

Commission rules, regulations in this

chapter, 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

representations made in the request are

accurate and complete. The following

form of certification is sufficient for this

purpose:

I hereby certify that the statements

contained in the attached letter dated

lllllll are true and complete to the

best of my knowledge.

lllllllllllllllllllll

(Name and Title)
Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules 3289

and

(ii) An undertaking by such person on

behalf of the person seeking a Letter that

at such time as any material

representation made in the request

ceases to be accurate and complete, the

person who has made the request or

received the Letter will promptly submit

a written supplement reflecting all

material changed circumstances.

(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

must discuss the legal and public policy

bases supporting issuance of the Letter.

(5) The request must contain

references to all relevant authorities,

including the Act, Commission rules,

regulations in this chapter, 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

Letters issued by 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.

(7) Requests may ask that, if the

primary relief is denied, alternative

relief be granted.

(d) Filing requirements. Each request

for a Letter must comply with the

following filing requirements:

(1) The request must be made 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, N.W., Washington,

D.C. 20581. The Director will route the

request to the appropriate division.

(e) Form of staff response. No grant of

any request governed by this section is

effective unless it is in writing signed by

responsible Commission staff and has

been transmitted in final form to the

requester. 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. Once filed,

a request for a Letter may only be

withdrawn if:

(1) A request for withdrawal is made

in writing and makes the following

representations, as applicable, together

with a certification that such

representations are true:

(i) The person on whose behalf the

request was made has determined not to

proceed with the proposed transaction

or activity, or

(ii) Intervening events have rendered

the request moot; or

(2) The request is the subject of a

request for confidential treatment

pursuant to § 140.98 and Commission

staff has notified the requester that the

request for confidential treat-ment will

be denied, in which event the requester

may withdraw the letter within 30 days

after such notification, as provided in

§ 140.98.

(g) Failure to pursue a request. If a

requester fails to respond within 30

calendar days of the date of a request

from Commission staff for additional

information or analysis, Commission

staff generally will issue an adverse

response, unless an extension of time

has been granted.

(h) Confidential treatment. If a

requester seeks confidential treatment of

a request for a Letter that it has filed,

such treatment must be separately

requested in accordance with § 140.98

or § 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, notice filings required to

be made to claim relief from the Act or

from a Commission rule, regulation or

order including, without limitation,

§§ 4.5, 4.7(a), 4.7(b), 4.12(b), 4.13(b) and

4.14(a)(8) of this chapter.

Issued in Washington, D.C. on January 13,

1998 by the Commission.

Catherine D. Dixon,

Assistant Secretary of the Commission.

[FR Doc. 98–1138 Filed 1–21–98; 8:45 am]

BILLING CODE 6351–01–P

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 291

RIN 1076–AD87

Class III Gaming Procedures

AGENCY: Bureau of Indian Affairs,

Interior.

ACTION: Proposed rule.

SUMMARY: The Department has

concluded that it has the authority to

prescribe procedures permitting Class III

gaming when a State interposes its

immunity from suit by an Indian Tribe.

The proposed rule announces the

Department’s determination that the

Secretary may promulgate Class III

gaming procedures under certain

specified circumstances. It also sets

forth the process and standards

pursuant to which any procedures

would be adopted.

DATES: Written comments must be

submitted on or before April 22, 1998 to

be considered.

ADDRESSES: Mail comments to Paula L.

Hart, Indian Gaming Management Staff,

Bureau of Indian Affairs (BIA),

Department of the Interior, MS 2070–

MIB, 1849 C Street, NW, Washington,

DC 20240. Comments may be handdelivered to the same address from 9:00

a.m. to 4:00 p.m. Monday through

Friday or sent by facsimile to (202) 273–

3153. Comments will be made available

for public inspection at this address

from 9:00 a.m. to 4:00 p.m. Monday

through Friday beginning approximately

two weeks after publication of the

proposed rule.

FOR FURTHER INFORMATION CONTACT:

Paula L. Hart, Indian Gaming

Management Staff, Bureau of Indian

Affairs, Department of the Interior, MS

2070–MIB, 1849 C Street, NW,

Washington, DC 20240, Telephone (202)

219–4066.

SUPPLEMENTARY INFORMATION:

Introduction

Congress enacted the Indian Gaming

Regulatory Act (IGRA), 25 U.S.C. 2701–

2721, to provide a statutory basis for the

operation and regulation of Indian

gaming and to protect Indian gaming as

a means of generating revenue for tribal

governments. Prior to the enactment of

IGRA, states generally were precluded

from any regulation of gaming on Indian

reservations. See California v. Cabazon

Band of Mission Indians, 480 U.S. 202

(1987). IGRA, by offering States an

opportunity to participate with Indian

Tribes in developing regulations for

Indian gaming, ‘‘extends to States a

power withheld from them by the

Constitution.’’ Seminole Tribe of Florida

v. State of Florida, 116 S. Ct. 1114, 1124

(1996).

Since IGRA’s passage in 1988, more

than 150 compacts in more than 20

States have been successfully negotiated

by Tribes and States, and approved by

the Secretary. Today, Indian gaming

generates significant revenue for Indian

Tribes. As required by IGRA, gaming

revenues are being devoted primarily to

providing essential government services

such as roads, schools, and hospitals, as

well as economic development.

IGRA divides Indian gaming into

three categories. This proposed rule

addresses only the conduct of Class III