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[Federal Register: January 22, 1998 (Volume 63, Number 14)]

[Proposed Rules]

[Page 3285-3289]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22ja98-16]



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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: Proposed rule.



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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

[email protected]. 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\

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    \1\ 7 U.S.C. Sec. 1 et seq. (1994).

    \2\ Commission regulations are found at 17 C.F.R. Ch. I et seq.

    \3\ These 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.

    \4\ By 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).

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    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, no-action 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 frame-work 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, no-action 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\

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    \5\ The 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.

Sec. 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.

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    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 no-action letter represents the position of

only the division issuing it and is binding only upon that division and

not



[[Page 3286]]



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.

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    \6\ Statutory 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.

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    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.

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    \7\ Where 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.

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    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\

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    \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).

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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



[[Page 3287]]



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.

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    \9\ This 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.

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    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\

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    \10\ Commission 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.

    \11\ See Precious Metals Associates, Inc. v. CFTC, 620 F.2d 900

(1st Cir. 1980).

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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.

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    \12\ For 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.

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    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\

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    \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.

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    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 notice-and-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. Sec. 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



[[Page 3288]]



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:





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 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, no-action 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 ______________ are true and complete to the best of my

knowledge.



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(Name and Title)





[[Page 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 Sec. 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 Sec. 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 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,

notice filings required to be made to claim relief from the Act or from

a Commission rule, regulation or order including, without limitation,

Secs. 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
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