(a) General.

1. (1)

   1. (A) In most circumstances, persons requesting informal advice from the staff should submit a request for an interpretive opinion or no-action letter.
   2. (B) In an interpretive opinion, the staff provides its views on the interpretation of a specific statute or rule in the context of an actual and narrow fact situation.
   3. (C) A no-action letter is one in which the staff indicates that it will not recommend enforcement action to the Securities Commissioner if a proposed course of action described in the request occurs just as described in the request.
   4. (D) In some instances, the staff may indicate that it is unable to assure the requesting party that it will not recommend enforcement action and may allow the requesting party to withdraw the request.
   5. (E) A no-action letter expresses the staff’s position on enforcement action only and does not represent any legal conclusion on the question presented.

2. (2) Requests for no-action letters or interpretive opinions should comply with the following:

   1. (A)

(i) Each request for no-action letter or an interpretive opinion shall be in writing.

1. (ii) The requesting party must submit an original and one (1) copy of each request;

   1. (B)

      1. (i) The specific subsection of the particular statute to which the request pertains must be indicated in the request.
      2. (ii) Thus, for example, a letter requesting an interpretation of Arkansas Code § 23-42-504(a)(9) of the Arkansas Securities Act exemption would be captioned “Section 23-42-504(a)(9) Exemption” and a letter requesting an interpretation of 23 CAR § 300-504(b)(1)(I) under the Arkansas Securities Act would be captioned “23 CAR § 300-504(b)(1)(I)”;

   2. (C)

      1. (i) The request must contain the names of each person and entity involved in the underlying facts.
      2. (ii) Requests relating to unnamed persons or entities or to hypothetical situations will not be answered;

   3. (D)

      1. (i) The request must be limited to the particular situation involving the problem at hand and should not attempt to include every possible type of situation which may arise in the future.
      2. (ii) The facts and representations must be specific, not general;
   4. (E) While it is essential that the request contain all of the facts necessary to reach a conclusion in the matter, the request should be concise and to the point;

   5. (F)

      1. (i) The requesting party must indicate:

(b) (b) His or her own opinion in the matter; and

1. (c) (c) The basis for that opinion.

   1. (ii) If the requesting party seeks confidential treatment, a separate letter requesting confidential treatment and stating the basis for confidential treatment must be submitted with the interpretive request.

      1. (iii) Confidential treatment will generally not be available unless necessary to protect bona fide trade secrets or unless clearly authorized by some other provision of law; and

   2. (G)

      1. (i) In responding to a properly submitted request for interpretive opinion or no-action letter, the staff will use an endorsement to the incoming request.
      2. (ii) The staff will state its position on a separate page attached to the incoming request.
      3. (iii) Both the incoming letter and the staff’s endorsement response will be:

(b) (b) Made publicly available; and

1. (c) (c) Posted to the State Security Department’s website.

(b) Limitations.

1. (1) All forms of informal advice, including no-action letters and interpretive opinions, are subject to substantial limitations.

2. (2) These limitations include the following:

   1. (A)

      1. (i) All informal advice is subject to reconsideration and is not precedent binding on the commissioner.
      2. (ii) Informal advice sets forth the staff’s position only with respect to the particular facts posed by the particular requesting party and does not constitute an official expression of the commissioner’s views;

   2. (B)

      1. (i) In responding to any request for informal advice, the advice given will be limited to and conditional upon the specific representations made to the staff by the requesting party.
      2. (ii) The staff’s position will be based solely upon the facts and representations provided by the requesting party.
      3. (iii) These facts and representations must be specific rather than general.
      4. (iv) Any different facts, representations, or circumstances might require the staff to reach a different conclusion;

   3. (C)

      1. (i) All informal advice applies only to the requesting party.
      2. (ii) Persons in similar circumstances should not rely on previous no-action letters or interpretive opinions, but submit their own request for informal advice;
   4. (D) All informal advice shall be limited to the specific law administered by the department as stated in the staff’s response, and will not address the applicability of any other federal, state, or local law, rule, or regulation; and

   5. (E)

      1. (i) The staff may decline to express any view on the application of law to a particular set of facts.
      2. (ii) There are several reasons why the staff may feel it inappropriate in a particular instance to express an opinion.
      3. (iii) For example:

(b) (b) The staff may be concerned that its position may be misconstrued in somewhat different factual circumstances; and

1. (c) (c) In some areas, policy concerns dictate that the staff may not express a view.