The Rule for the first time imposes formal requirements for requests for relief, but, in the release accompanying the final rule, the CFTC stated that its staff would continue to be receptive to informal requests for relief and to engage in discussions with industry participants, counsel and members of the public. The Rule becomes effective on January 11, 1999. In addition, the Rule calls for the provision of identifying information concerning the requester, certifications and undertakings regarding the factual underpinnings of the request and presentation of the relevant legal issues and precedents, as follows. The Rule further requires that the request be accompanied by an undertaking by the person on whose behalf the request is made, or its authorized representative, to inform the CFTC in writing if at any time prior to the issuance of the relief letter, any material representation made in the request ceases to be true and complete. The CFTC stated that the Rule does not require a lengthy discussion of precedent, but relevant positive and negative statutory, judicial and regulatory authority must be cited.
Representative citation is sufficient where several authorities stand for the same proposition.
Exemptive letters are issued by a CFTC division, bind both the CFTC and its staff and may be relied upon only by the beneficiary of the relief. The relief granted by no-action letters binds only the CFTC division or office granting the relief and may be relied upon only by the beneficiary of the letter. The relief granted by interpretative letters binds only the CFTC division or office granting the relief but may be relied upon by others, presumably, by all those affected by the issue in question. Although the CFTC declined to permit third parties to rely on no-action letters or exemptive letters not requested by them, it noted that prior letters certainly may be relevant and must be cited in requests for relief, as noted above. However, the CFTC expressed its preference, which it has noted previously in denying requests for no-action and exemptive relief, for addressing recurrent situations by means of formal rulemaking.