Olivia Bazor

Staff Attorney

FOIA CONFIDENTIAL TREATMENT REQUEST

August 24, 2023

VIA ELECTRONIC PORTAL

Assistant Secretary of the CFTC

for FOIA, Privacy and Sunshine Acts Compliance 

Three Lafayette Center

1155 21st Street, NW

Washington, DC 20581

Re: FOIA Confidential Treatment Request and Detailed Written Justification

Rule Certification Submission to Update the Stress-Testing Framework Pursuant to Section 

5c(c)(1) of the Commodity Exchange Act and Commission Regulation 40.6(a) (the 

“Submission”)

Dear Assistant Secretary:

In conjunction with the self-certification submitted by ICE Clear Credit LLC (“ICE Clear Credit”) today, 

August 24, 2023, to the Secretary of the Commodity Futures Trading Commission (“Commission”), pursuant 

to Section 5c(c)(1) of the Commodity Exchange Act and Commission Regulation 40.6(a), ICE Clear Credit 

submits the attached confidential document. 

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Under the Freedom of Information Act (“FOIA”), 5 USC Section 552, Section 809(g) of the Dodd-Frank Wall 

Street Reform and Consumer Protection Act and pursuant to Commission Regulations 40.8(c) and 

145.9(d), Federal Reserve Board Regulation 261.15 and any other applicable regulations under or 

implementing FOIA, ICE Clear Credit hereby respectfully requests that confidential treatment be maintained 

for the document which bears Bates numbers 08.24.2023-000001-CFTC1 to 08.24.2023-000026-CFTC1 

(“Confidential Material”) until further notice. In accordance with Commission Regulation 145.9(d)(4), every 

page of the Confidential Material bears the designation “Confidential Treatment Requested by ICE Clear 

Credit LLC.” In accordance with Commission Regulations 40.8(c)(2) and (3), the Confidential Material has 

been segregated from the Submission in an appendix (“Appendix A”) and the Submission indicates that the 

Confidential Material has been segregated from the Submission.

ICE Clear Credit also requests that the Commission or the Board notify the undersigned immediately after 

receiving any FOIA request for such documents or any other court order, subpoena or summons for the 

same. Finally, ICE Clear Credit requests that it be notified in the event the Commission or the Board intends 

to disclose such documents to Congress or to any other governmental agency or unit pursuant to Section 8 

of the Commodity Exchange Act, as amended (“CEA”) or other applicable law. ICE Clear Credit does not 

waive its notification rights under Section 8(f) of the CEA or other applicable law with respect to any 

subpoena or summons for such document(s).

The basis for the request is that disclosure of these document(s) would reveal confidential commercial and 

financial information of ICE Clear Credit, the disclosure of which could have a material adverse effect on, 

and cause injury to, the operations and competitive position of ICE Clear Credit. This request is not to be 

construed as a waiver of any other protection from disclosure or confidential treatment accorded by law, 

and ICE Clear Credit will rely on and invoke any such confidentiality protection.
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In accordance with Commission Regulation 40.8(c)(1), ICE Clear Credit hereby submits its detailed written 

justification in support of the confidential treatment of the Confidential Material. The Confidential Material is 

deemed by ICE Clear Credit to be highly confidential in its entirety and confidentiality therefore is being 

requested under the FOIA, 5 U.S.C. 552, Section 809(g) of the Dodd-Frank Wall Street Reform and 

Consumer Protection Act and pursuant to Commission Regulations 40.8(c) and 145.9(d), Federal Reserve 

Board Regulation 261.15, and any other applicable statutes or regulations. Because this Confidential 

Material constitutes commercial or financial information which is privileged or confidential, it is subject to 

the exemption from mandatory disclosure found in Section 552(b)(4) of FOIA (“FOIA Exemption 4”). 

Section 552(b)(4) of the FOIA exempts from the disclosure requirements of the FOIA “trade secrets and 

commercial or financial information obtained from a person and privileged or confidential”. Information has 

generally been deemed “commercial or financial” if it relates to business or trade. See, e.g., Dow Jones Co.

v. FERC, 219 F.R.D. 167, 176 (C.D. Cal. 2002). The Court of Appeals for the District of Columbia Circuit 

has rejected the argument to confine the term "commercial" to records that "reveal basic commercial 

operations" such as such as sales statistics, profits and losses, and inventories. It has instead held that the 

terms “commercial” or “financial” should be given their "ordinary meanings" and that records are commercial 

so long as the submitter has a "commercial interest" in them. Pub. Citizen Health Research Group v. FDA, 

704 F.2d 1280, 1290 (D.C. Cir. 1983). Further, the FOIA contains no definition of “privileged” or 

“confidential”. In Gulf & Western Industries, Inc. v. U.S., 615 F.2d 527 (D.C. Cir. 1979), the Court of Appeals 

concluded that information is confidential for purposes of the FOIA if (i) it is not of the type normally released 

to the public by the submitter and (ii) the information is of the type that would cause substantial competitive 

harm if released. There is no requirement that “competitive harm" be established by a showing of actual 

competitive harm. Rather, "actual competition and the likelihood of substantial competitive injury is all that 

needs to be shown." Gulf & Western Indus., Inc. v. U.S., 615 F.2d at 530. Thus, in National Parks and 

Conservation Association v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976), the Court of Appeals concluded that 

the disclosure of certain financial information, including costs and price-related items, was likely to cause 

substantial harm to the disclosing party’s competitive position. Such disclosure, if required, would provide 

competitors with valuable information relating to the operational strengths and weaknesses of the disclosing 

company. Such competitive harm may result from the use of such information either by direct competitors 

or by persons with whom one is negotiating. See American Airlines, Inc. v. National Mediation Board, 588 

F.2d 863, 868 n.13 (2d Cir.1978). 

As discussed above, the Confidential Material, which is comprised of commercial or financial information, 

serves a commercial function. ICE Clear Credit has a commercial interest in the information contained 

within the Stress-Testing Framework, which describes the stress testing methodologies. This document is 

key to ICE Clear Credit’s activities as a clearinghouse as they describe ICE Clear Credit’s stress testing 

practices. As such, the Stress-Testing Framework holds commercial value in establishing models, methods 

and practices related to stress testing processes and procedures, which took significant effort and time to 

develop. Disclosure of the document could be used by competitors of ICE Clear Credit to gain a competitive 

advantage and should be protected from public disclosure pursuant to this exemption. Disclosure of the 

Confidential Material could cause significant competitive harm since competitors could utilize the Confidential 

Material to mimic ICE Clear Credit’s business and the opportunities identified by ICE Clear Credit. Disclosure 

of the commercial or financial information would provide insight and information related to ICE Clear Credit 

models, methods, techniques, strategies, analyses, policies and procedures, or system designs, which 

competitors could pursue to ICE Clear Credit’s detriment given the level of detail contained within the Confidential 

Material. Further, the information set forth in the Confidential Material is not of a type customarily made 

available by ICE Clear Credit to the public and has not been disclosed to the public. Consequently, the 

disclosure of the Confidential Material holds the potential for significant competitive harm to ICE Clear 

Credit as competitors could utilize the commercial or financial information contained therein to construct 

similar methodologies, systems, and analyses without expending similar efforts on development to 

disadvantage ICE Clear Credit. For all the foregoing reasons, ICE Clear Credit requests that the 

Commission determine to protect the confidentiality of the Confidential Material and the information 

contained therein. 
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Please direct any questions or requests for information to the attention of the undersigned at 

olivia.bazor@ice.com or 904-855-5580.

Sincerely,

Olivia Bazor

Staff Attorney

ICE Clear Credit LLC