300 Vesey Street New York, NY 10282 T 212 299 2200 F 212 301 4645 christopher.bowen@cmegroup.com cmegroup.com

Christopher Bowen

Managing Director and Chief Regulatory Counsel

Legal Department

October 19, 2020

VIA ELECTRONIC PORTAL

Mr. Christopher J. Kirkpatrick

Office of the Secretariat

Commodity Futures Trading Commission

Three Lafayette Centre

1155 21st Street, N.W.

Washington, D.C. 20581

Re: FOIA Confidential Treatment Request

Dear Mr. Kirkpatrick:

By electronic portal dated today, October 19, 2020, Chicago Mercantile Exchange (“CME” or “Clearing 

House”) submitted a supplemental rule certification filing (Submission No. 20-404S) to the Commodity 

Futures Trading Commission (“CFTC” or “Commission”). The supplemental filing includes an Appendix for 

which CME is submitting a detailed written justification setting forth grounds for this request for

confidential treatment.

Pursuant to Sections 8 and 8(a) of the Commodity Exchange Act (“CEA”), as amended, and Commission 

Regulation 145.9(d), CME requests confidential treatment of the Appendix on the grounds that disclosure 

of the Appendix would reveal confidential commercial information of CME. Pursuant to Commission 

Regulation 145.9(d)(5), CME requests that confidential treatment be maintained for the Appendix until 

further notice from CME. CME also requests that the Commission notify the undersigned immediately 

after receiving any FOIA request for said Appendix or any other court order, subpoena or summons for 

same. Finally, CME requests notification in the event the Commission intends to disclose such Appendix

to Congress or to any other governmental agency or unit pursuant to Section 8 of the CEA. CME does 

not waive its notification rights under Section 8(f) of the CEA with respect to any subpoena or summons 

for such Appendix.

Should you have any questions concerning the above, please contact the undersigned at (212) 299-2200 

or via e-mail at CMEGSubmissionInquiry@cmegroup.com.

Sincerely,

/s/ Christopher Bowen

Managing Director and Chief Regulatory Counsel

Attachment: Exhibit 1
300 Vesey Street New York, NY 10282 T 212 299 2200 F 212 301 4645 christopher.bowen@cmegroup.com cmegroup.com

Exhibit 1

DETAILED WRITTEN JUSTIFICATION

Christopher Bowen 

Managing Director and Chief Regulatory Counsel 

Legal Department 

October 19, 2020

VIA ELECTRONIC PORTAL

Assistant Secretary of the Commission for FOIA,

Privacy and Sunshine Acts Compliance

Commodity Futures Trading Commission

Three Lafayette Centre, 8th Floor 

1155 21st Street, N.W.

Washington, DC 20581

Re: FOIA Confidential Treatment Request: Appendix to CME Submission No. 20-404S

Dear FOIA Compliance Staff:

I am writing on behalf of Chicago Mercantile Exchange Inc. (“CME” or “Clearing House”), a subsidiary of 

CME Group Inc. In accordance with the requirements set forth in Commodity Futures Trading 

Commission (“CFTC” or “Commission”) Regulation 40.8, the Clearing House hereby submits its detailed 

written justification in support of continued confidentiality of the information set out in Appendix A to

Submission No. 20-404 (“Appendix”) and respectfully requests that the Commission not release the 

information contained therein. 

As discussed more fully below, Submission No. 20-404S contains confidential and proprietary commercial 

information of the Clearing House and is thus exempt from disclosure pursuant to Section 8 of the

Commodity Exchange Act (“CEA”), Commission Regulation 145.9(d) and Exemption 4 (the “Exemption”) 

to the Freedom of Information Act (“FOIA”). 

Presumption of Confidentiality

There is a presumption of confidentiality for commercial information that is (1) provided voluntarily and (2) 

is of a kind the provider would not customarily make available to the public. See Critical Mass Energy 

Project v. Nuclear Regulatory Commission, 975 F.2d 871, 878 (D.C. Cir. 1992) (en banc); see also Center 

for Auto Safety v. National Highway Traffic Safety Administration, 244 F.3d 144, 147 (D.C. Cir. 2001) 

(affirming continuing validity of Critical Mass and applying tests detailed in that case). The Clearing House

provided the confidential information in the Appendix to the Commission voluntarily in connection with the 

above referenced submission in order to demonstrate to the Commission the compliance with the CEA 

and relevant Commission Regulations. The information set out in the Appendix was developed by the 

Clearing House at significant cost and over a substantial period of time. The Clearing House would not 

customarily make such information available to the public. 
300 Vesey Street New York, NY 10282 T 212 299 2200 F 212 301 4645 christopher.bowen@cmegroup.com cmegroup.com

Disclosure Would Likely Cause Competitive Harm to the Clearing House

Notwithstanding this presumption of confidentiality, the confidential information in the Appendix still would 

be considered “confidential” because it is information that the Clearing House would not have disclosed to 

the public and its disclosure would cause substantial harm to the competitive position of the Clearing 

House. FOIA was enacted to facilitate the disclosure of information to the public, but was clearly not 

intended to allow business competitors “cheap” access to valuable confidential information, especially 

when “competition in business turns on the relative costs and opportunities faced by members of the 

same industry.” Worthington Compressors v. Costle, 662 F.2d 45, 51 (D.C. Cir. 1981).

When a submitter of confidential information has a “commercial interest in the requested information the 

[E]xemption is properly invoked.” ISG Group, Inc. v. Dept. of Defense, 1989 WL 168858 (D.D.C. 1989). 

The test for determining confidentiality under Exemption 4 is set forth in National Parks & Conservation 

Association v. Morton, where the court held that information is confidential if its disclosure would ”cause 

substantial harm to the competitive position of the person from whom the information was obtained.” In 

applying the “competitive harm” test for confidentiality, there is no requirement to demonstrate actual 

competitive harm. Gulf & Western Indus., Inc. v. United States, 615 F.2d 527, 530 (D.C. Cir. 1979). 

“Actual competition and the likelihood of substantial competitive injury is all that need to be shown.” Gulf 

& Western Indus., Inc. v. United States, 615 F.2d at 530. Information is confidential if: 1) there is actual 

competition in the relevant market; and 2) disclosure is likely to cause substantial competitive injury. Id. 

Neither the Commission nor the courts must conduct a sophisticated economic analysis to determine the 

likely effects of disclosure; evidence demonstrating the potential for economic harm is sufficient. Utah v. 

Bahe et al. No. 00-4018, 2001 WL 777034, at 2 (10th Cir. July 10, 2001); Public Citizen Health Research 

Group v. Food & Drug Admin., 704 F2d 1280, 1291 (D.C. Cir. 1983).

Disclosure Would Likely Harm the Clearing House

The Clearing House also satisfies the second requirement for the “competitive harm” test for 

confidentiality because the release of the information would likely cause substantial competitive injury to 

the Clearing House. See Gulf & Western Indus. Inc. v. United States 615 F.2d 527,530 (D.C. Cir. 1979). 

As noted above, a sophisticated economic analysis is unnecessary; the potential for economic harm is 

sufficient. Utah v. Bahe et al., No. 00-4018, 2001 WL 777034, at 2 ( Cir. July 10, 2001); Public Citizen 

Health Research Group v. Food & Drug Admin., 704 F.2d 1280, 1291 (D.C. Cir. 1983).

Under circumstances similar to those involved here, courts have recognized that disclosure of commercial 

information holds the potential for significant competitive harm. Bahe No. 00-4018, 2001 WL 777034, at 

2-3 (terms and structure of contract for storage of nuclear fuel confidential); Heeney v. Food & Drug 

Admin., 2001 U.S. App. Lexis 7732, at 3-4 (9th Cir. April 12, 2001) (manufacturing agreement and other 

information confidential); Professional Review Org. v. U.S. Department of Health and Human Servs., 607 

F. Supp. 423, 425-26 (D.D.C. 1985) (business plans confidential). When applying the “substantial 

competitive harm test,” courts “[c]onsider how valuable the information will be to the requesting 

competitors and how much this gain will damage the submitter.” Worthington Compressors, 662 F.2d at 

51.

The Appendix contains valuable commercial information. This information was developed at significant 

cost and over a substantial period of time. It would destroy the value of that work if we were required to 

make that information available to competitors, who could free ride our efforts with no cost. Additionally, 

there is no regulatory imperative to disclose such information.

For the foregoing reasons, the Clearing House respectfully requests that the Commission maintain the 

confidential privilege afforded to this type of information and refrain from releasing the Appendix as such

action could prove harmful to the Clearing House. 

Please contact me if you have any questions regarding this matter.

Sincerely, 

/s/ Christopher Bowen

Managing Director and Chief Regulatory Counsel