Applicability of New Definitions of "Exemptive," "No-Action" and "Interpretative" Letters
(Originally published as Advisory 16-99 on April 19, 1999)
On December 10, 1998 the Commission published new Rule 140.99 setting forth procedures for submission of requests to the Commission staff for exemptive, no-action and interpretative letters. Included in the new rule are definitions of "Exemptive Letter, "No-Action Letter" and "Interpretative Letter" (collectively referred to as "Letters"). Under the new Rule 140.99:
- An exemptive letter is a written grant by the staff of a Division of the Commission or its Office of the General Counsel, pursuant to delegated authority, of exemption from a specific provision of the Commodity Exchange Act (the "Act") or Commission regulations. It binds the Commission and its staff with respect to the specific fact situation and persons addressed by the letter; third parties may not rely upon it.
- A no-action letter is a written statement by the staff of a Division of the Commission or its Office of the General Counsel that such staff will not recommend that the Commission commence enforcement action for failure to comply with a specific provision of the Act or Commission regulations. It binds only the staff of the Division that issued it (or the Office of the General Counsel, as the case may be) with respect to the specific fact situation and persons addressed by the letter, and third parties may not rely upon it.
- An interpretative letter is written advice or guidance by the staff of a Division of the Commission or its Office of the General Counsel. It binds only the staff of the Division that issued it (or the Office of the General Counsel, as the case may be), and third-parties may rely upon it as the interpretation of that staff.
This advisory is to clarify that these definitions and the corresponding distinctions as to scope and effect apply only to Letters issued on or after the effective date of Rule 140.99, January 11, 1999.
Prior to the adoption of Rule 140.99, Letters have been variously identified in publications in ways that may be inconsistent with the definitions set forth in Rule 140.99. For example, it has been the practice of at least one publication to describe all CFTC Letters generically as "interpretative letters" – including Letters that would not be considered "Interpretative Letters" under the new rule but would be considered "No-Action" or "Exemptive Letters." In order to avoid confusion, Commission staff cautions the public and practitioners in the field that it is the Commission staff’s denomination of a Letter as "Exemptive," "No-Action" or "Interpretative" that is controlling; how a particular publication labels a Letter has no legal effect. Moreover, since Rule 140.99 is prospective in effect, the distinctions between various types of Letters under the new rule apply only to Letters issued on or after January 11, 1999. With respect to letters that predate the effectiveness of Rule 140.99 and the new definitions, interested persons should look to the text of the letter itself when attempting to determine the nature of the letter, whom it binds and who may rely upon it, or should seek guidance from Commission staff.