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  • [Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]


    [Pages 79408-79410]

    From the Federal Register Online via the Government Printing Office []

    [FR Doc No: 2013-31106]




    Agency Information Collection Activities; Notice of Intent To

    Renew Collection: Procedural Requirements for Requests for

    Interpretative, No-Action, and Exemptive Letters

    AGENCY: Commodity Futures Trading Commission.

    ACTION: Notice.


    SUMMARY: The Commodity Futures Trading Commission (CFTC) seeks public

    comment on the proposed renewal of a collection of information by the

    agency. Under the Paperwork Reduction Act (PRA), Federal agencies are

    required to publish notice in the Federal Register concerning each

    proposed collection of information, including each proposed extension

    of an existing collection of information, and to allow 60 days for

    public comment in response to the notice. This notice solicits comments

    on requirements relating to requests for and issuance of exemptive, no-

    action, and interpretative letters.

    DATES: Comments must be submitted on or before February 28, 2014.

    ADDRESSES: You may submit comments, identified by ``Collection 3038-

    0049-Renewal,'' by any of the following methods:

    The Agency's Web site, at

    Follow the instructions for submitting comments through the Web site.

    Mail: Melissa D. Jurgens, Secretary of the Commission,

    Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st

    Street NW., Washington, DC 20581.

    Hand Delivery/Courier: Same as mail, above.

    Please submit your comments using only one method. All comments

    must be submitted in English, or if not, accompanied by an English

    translation. Comments will be posted as received to

    FOR FURTHER INFORMATION CONTACT: Christopher W. Cummings, Special

    Counsel, Division of Swap Dealer and Intermediary Oversight, (202) 418-

    5228, email:; Jocelyn Partridge, Special Counsel,

    Division of Clearing and Risk, (202) 418-5926, email:; Riva Spear Adriance, Senior Special Counsel,

    Division of Market Oversight, (202) 418-5494, email:; or Beverly E. Loew, Assistant General Counsel,

    Office of General Counsel, (202) 418-5648, email:

    SUPPLEMENTARY INFORMATION: Under the PRA, Federal agencies must obtain

    approval from the Office of Management and Budget (``OMB'') for each

    collection of information they conduct or sponsor. ``Collection of

    Information'' is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3. The

    definition includes agency requests or requirements that members of the

    public submit reports, keep records, or provide information to a third

    party. An agency may not conduct or sponsor, and a person is not

    required to respond to, a collection of information unless it displays

    a valid OMB control number. Sections 3506(c)(2)(A) and 3507(h) of the

    PRA, 44 U.S.C. 3506(c)(2)(A) and 3507(h), require a Federal agency to

    provide a 60-day notice in the Federal Register whenever it seeks to

    renew a collection of information previously

    [[Page 79409]]

    approved by OMB, seeking public comment before submitting the

    collection to OMB for renewal. To comply with this requirement, the

    CFTC is publishing notice of the proposed collection of information

    listed below.

    Abstract: This collection covers the procedural requirements for

    requests for, and issuance of, interpretative, no-action, and exemptive

    letters according to the provisions of section 140.99 of the

    Commission's regulations.\1\ The current collection, for which a three-

    year extension is being sought, has been assigned OMB control number

    3038-0049. The collection requirements contained herein are voluntary.

    The requirements are observed by parties that wish to apply most

    frequently for a benefit from agency staff in the form of regulatory

    relief described in section 140.99. Relief sought often relieves the

    persons obtaining it from some or all of the burdens associated with

    other collections of information.


    \1\ 17 CFR 140.99. An archive containing CFTC staff letters may

    be found at


    Burden Statement: There has been an increase in requests for no-

    action and interpretive letters in particular, following the

    implementation of the Wall Street Reform and Consumer Protection Act

    (``Dodd-Frank Act'') by the Commission. Accordingly, as elaborated

    below, the burden hours for this collection are being increased from

    the last renewal of this collection.

    The burden increase is related to several factors. First, there

    have been an increased number of respondents for this collection in the

    form of requestors that must comply with the collection requirements

    contained in section 140.99 in order for the request to be considered

    by staff.

    Second, burden increase is attributable to collection requirements

    contained within issued exemptive and no-action letters providing

    regulatory relief. Historically, most exemptive, no-action, and

    interpretive letters were sought by and issued to an individual party

    (or fewer than ten persons) that may have been subject to discrete

    collections of information in a letter in order to obtain the benefit

    of it, which collections were excepted from the application of the PRA.

    Since the implementation of the Dodd-Frank Act, however, these letters

    more frequently have been sought by and issued to large groups of

    similarly situated persons, typically to entire industries or industry

    subgroups. Because of the increase in respondents, the PRA exception is

    not applicable to this proposed renewal.

    Thus, the proposed renewal accounts for relief issued by staff

    under regulation 140.99 that contain information collections, which

    often involves providing notice and certifications to the division or

    office staff issuing the letter. The proposed renewal also accounts for

    relief from compliance with an existing collection of information, and

    occasionally from a regulatory obligation that does not contain a

    collection of information, with substituted compliance obligations in

    the form of an information collection in the letter providing the


    Third, there has been an increase in burden attributable to adding

    collection requirements into this collection that are related to this

    collection, such as compliance with requirements for requesting

    confidential treatment of letters that may be granted under section

    140.98 of the Commission's regulations, but could be effected through

    separate collections. It was determined not to establish separate

    collections for the related matters in order to streamline the

    analysis, compliance, and renewal processes for the Commission and all

    entities that may submit requests for exemptive, no-action, and

    interpretive letters that include burden associated with the related


    Therefore, in order to establish estimates with respect to no-

    action and exemptive letters that may be issued during the 3-year

    renewal period for which the Commission is applying, a sampling was

    taken of exemptive and no-action letters over a six month period from

    December 4, 2012, through June 4, 2013. This time period was chosen

    because it is believed that it reasonably represents the shift in the

    manner in which these letters are sought and issued since the last

    renewal of this collection of information.

    During this period, encompassing no-action letters 12-40 through

    13-22, 58 no-action letters were issued. Thirty contained no

    collections of information, or collections that do not require an OMB

    control number, for example because they involved the submission of

    information by fewer than 10 persons,\2\ or they involved notice

    filings solely requiring a respondent to identify itself as relying on

    the relief, which notice is not considered to be an information

    collection under the PRA.\3\ Twenty-eight contained collections of

    information, a number of which require certification requirements that

    will permit monitoring for compliance with statutory or regulatory

    requirements not subject to the relief issued.\4\


    \2\ See, e.g., 44 U.S.C. 3502(3)(A)(1).

    \3\ See, e.g., 5 CFR 1320.3(h)(1).

    \4\ Id.


    Other contained substituted compliance obligations in the form of

    collections that were intended to be no more burdensome than the

    collection requirements provided for in the regulations, from which the

    no-action letters provided relief. Of the few letters that contained

    conditions allowing for substituted compliance that included a

    collection of information but relieved regulatory burden not associated

    with a collection of information, the increased collection burden was

    offset by the overall decrease in collection burden resulting from

    other letters issued pursuant to section 140.99. Nonetheless, to ensure

    flexibility over the next three years, burden hours were estimated to

    cover circumstances in which a collection contained in a no-action or

    exemptive letter may add to, rather than offset or decrease, regulatory

    burdens containing collections of information.

    Finally, although there has been an increase in requests for no-

    action relief and interpretive letters, Commission staff does not

    anticipate that this increase will be permanent. Thus, burden estimates

    have been bifurcated. Burden hours have been estimated at an increased

    level for the first year following the renewal of this collection, and

    then pared for the second and third years, so as not to artificially

    inflate the Commission's burden budget, or the burden budget that is

    maintained government-wide by OMB.

    Past experience was used to estimate the number of no-action,

    interpretive, and exemptive letters that may be received over the

    three-years for which this renewal is being sought. The number of

    letters received over the past five years are as follows:


    No- Inter- Exemp-

    Letters Issued action pretive tive


    2013......................................... 64 0 0

    2012......................................... 70 1 11

    2011......................................... 8 0 1

    2010......................................... 9 23 4

    2009......................................... 11 35 3


    Burden Estimates. For the proposed renewal period, the respondent

    burden calculated with consideration to past experience is estimated to

    be 28,478 hours. These estimates include burden hours for complying

    with the information requirements for exemptive, no-action, and

    interpretative letters contained in section 140.99(c) of the

    Commission's regulations, effecting filing as provided in section

    140.99(d), providing notice of material change in

    [[Page 79410]]

    circumstances that may affect any relief granted pursuant to section

    140.99(e), and complying with notice and other conditions that may be

    contained in grant of exemptive or no-action relief issued by staff;

    and preparing and submitting withdrawals of requests for exemptive, no-

    action, and interpretative letters pursuant to section 140.99(f). The

    estimates also include burden hours for preparing a confidential

    treatment request pursuant to and responding to any process contained

    in associated section 140.98(b) of the Commission's regulations, and

    complying with the documentation requirements contained in section

    41.3(b), related to exemption requests from certain intermediaries.

    Respondents/Affected Entities: Registered entities, intermediaries,

    eligible contract participants, parties clarifying their status as such

    or seeking relief from registration or discrete regulatory burdens

    associated with their status.

    Estimated number of respondents: 12,428.

    Estimated total annual burden on respondents: 28,478 hours.

    Frequency of collection: Occasionally.

    The Commission estimates the burden of this collection of

    information as follows:


    Estimated Reports or Estimated

    annual records Total annual average number Estimated

    respondents or annually--each responses of hours per annual burden

    recordkeepers respondent response hours



    Sec. 140.99(c)-- 40 1 40 9.00 360

    information requirements

    for letters................

    Sec. 140.99(d)--filing 40 1 40 0.38 15


    Sec. 140.99(e)--staff


    change of facts and 7 1 7 2.25 16


    notice and other 4,500 1 4,500 1.50 6,750


    Sec. 140.99(f)--withdrawal 6 1 6 0.75 5

    of requests................

    Sec. 140.98(b)-- 5 1 5 1.80 9

    confidential treatment


    Sec. 41.3(b)--securities 10 1 10 3.75 38

    brokers and dealers

    requesting exemptive

    orders; documentation



    Sec. 140.99(c)-- 25 1 25 9.00 225

    information requirements

    for letters................

    Sec. 140.99(d)--filing 25 1 25 0.38 9


    Sec. 140.99(e)--staff


    change of facts and 4 1 4 2.25 9


    notice and other 1,500 1 1,500 1.50 2,250


    Sec. 140.99(f)--withdrawal 3 0 0

    of requests................

    Sec. 140.98(b)-- 3 1 3 1.80 5

    confidential treatment


    Sec. 41.3(b)--securities 10 1 10 3.75 38

    brokers and dealers

    requesting exemptive

    orders; documentation



    SUBTOTAL REPORTING.. 6,178 13 6,175 38 9,728


    Sec. 140.99(e)--staff


    notice and other 4,500 4 18,000 0.75 13,500




    Sec. 140.99(e)--staff


    notice and other 1,750 4 7,000 0.75 5,250



    SUBTOTAL 6,250 8 25,000 2 18,750



    GRAND TOTAL......... 12,428 21 31,175 40 28,478


    There are no capital costs or operating and maintenance costs

    associated with this collection.

    This estimate is based on the number of requests for such letters

    in the last three years. Although the burden varies with the type,

    size, and complexity of the request submitted, such request may involve

    analytical work and analysis, as well as the work of drafting the

    request itself.

    Comment Solicitation: With respect to this collection of

    information, the CFTC invites comments on:

    Whether the proposed collection of information is

    necessary for the proper performance of the functions of the

    Commission, including whether the information will have a practical


    The accuracy of the Commission's estimate of the burden of

    the proposed collection of information, including the validity of the

    methodology and assumptions used;

    Ways to enhance the quality, usefulness, and clarity of

    the information to be collected; and

    Ways to minimize the burden of collection of 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.

    Dated: December 23, 2013.

    Christopher J. Kirkpatrick,

    Deputy Secretary of the Commission.

    [FR Doc. 2013-31106 Filed 12-27-13; 8:45 am]

    BILLING CODE 6351-01-P

    Last Updated: December 30, 2013

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