Frequently Asked Questions about Publication of No-Action, Exemptive, or Interpretative Relief Letters and Other Communications
On December 10, 2019, Chairman Tarbert announced that, consistent with the agency’s core values, the CFTC would publish all requests for no-action, interpretive, and exemptive relief submitted after January 1, 2020 on the agency’s website when such relief is granted. These FAQs provide additional information for those entities or persons requesting no-action, exemptive, or interpretative relief pursuant to 140.99 of the Commission’s regulations. In particular, all request letters, and the responses thereto, will be made public on the agency’s website in accordance with the procedures outlined in Regulation 140.98. Please note that requests for relief may not appear on the website immediately upon being granted.
What Does Regulation 140.98 Require?
Regulation 140.98 requires the Commission to make public all letters requesting relief and the responses thereto.
Can the Commission Withhold Publishing the Request Letter or Response Letter?
In general, Regulation 140.98 would require the Commission to make those letters public. However, a person may request confidential treatment of both their request letter and the agency’s response to the request. The agency may grant confidential treatment for a period of no more than 120 days from the date that the response is issued, effectively delaying publication of the request letter and the agency’s response.
The request for confidential treatment must be made in a separate document that is submitted together with the request for no-action, exemptive, or interpretative relief. The confidential treatment request must provide “a statement setting forth the considerations upon which the request” for confidential treatment is based (Regulation 140.98(b)). The confidential treatment request must be submitted together with the request for no-action, exemptive, or interpretative relief to the staff of the relevant CFTC division, as specified in Regulation 140.99(d)(2). After receiving the request for confidential treatment, Commission staff can either: (1) grant the request, if staff determines that the request is reasonable and appropriate; or (2) advise the person making the request that the request will be denied. If the person requesting confidential treatment is informed that the request for confidential treatment will be denied, they may withdraw their request for no action, exemptive, or interpretative relief within 30 days and the letter will not be published.
Regardless of whether the CFTC receives a request for confidential treatment, or after the time has expired on a granted request for confidential treatment, Regulation 140.98 prohibits the agency from publishing any portion of a request letter or the agency’s response to the request, which would separately disclose the business transactions or market positions of any person or trade secrets or names of customers, except in accordance with the applicable portions of Section 8 of the Commodity Exchange Act.
Does Regulation 140.98 Apply to Everything I Give the Agency in Support of No-Action, Interpretative, rr Exemptive Relief?
No. Regulation 140.98 applies only to (1) the actual letter or other written communication (including emails) formally requesting relief; and (2) the staff response to that letter or written communication. Any other information or correspondence with the agency regarding the relief requested is not subject to Regulation 140.98 but may be subject to other disclosure processes and requirements such as those under the Freedom of Information Act (“FOIA”) or the Commission’s petition for confidential treatment process in Regulation 145.9. In this regard, however, note that the actual letter formally requesting relief must itself comply with the requirements set forth in Regulation 140.99, including, but not limited to, the requirements that the “request must set forth as completely as possible all material facts and circumstances giving rise to the request” (Regulation 140.99(b)(5)(i)) and “must identify all relevant legal and factual issues and discuss the legal and public policy bases supporting” issuance of the relief. (Regulation 140.99(c)(4)).
How Does This Affect Staff Letters Issued Prior to January 1, 2020?
Before January 1, 2020, the agency’s practice was to publish only the no-action letter, exemptive letter, or the interpretative letter, but not the written request for such relief. Further, the agency published redacted versions of response letters. Staff does not intend at this time to go back and publish requests for relief or unredacted version of response letters on a wholesale basis. Rather, staff is considering, and will consider, requests to produce specific requests for relief on a case-by-case basis