55 East 52nd Street

New York, NY 10055

November 5, 2019

BY ELECTRONIC MAIL

Assistant Secretary of the Commission

FOIA, Privacy and Sunshine Acts Compliance

Commodity Futures Trading Commission

Three Lafayette Centre, 8th Fl.

1155 21st Street, N.W.

Washington, DC 20581

Re: FOIA Confidential Treatment Request

Dear FOIA Compliance Staff:

ICE Futures U.S., Inc. ("Exchange") Submission No. 19-331 (“Submission”), a self-certification of

the extension of Oil Liquidity Provider Program (“Program”), was simultaneously filed with the Secretary of

the Commission today. As discussed more fully below, Appendix A to the Submission (“Appendix A”)

contains confidential and proprietary commercial and financial information of the Exchange which is

exempt from disclosure pursuant to Section 552(b)(4) of the Freedom Of Information Act (“FOIA”) and

Commission Regulation 145.9(d). Copies of the Submission and Appendix A accompany this request.

Pursuant to Commission Regulation 145.9(d)(1)(ii), the Exchange requests that Appendix A and its contents

receive confidential treatment in perpetuity. IFUS further requests that the Commission notify the

Exchange upon receiving any FOIA request, or any other court order, subpoena or summons for

Appendix A. The Exchange also requests that it be notified if the Commission intends to disclose

Appendix A to Congress or to any other governmental agency or unit pursuant to Section 8 of the

Commodity Exchange Act (“CEA”).

DETAILED WRITTEN JUSTIFICATION

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”.

The FOIA contains no definition of “privileged” or “confidential”. Some courts have found there to be 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) (applying

tests from Critical Mass). Even if there were no presumption of confidentiality, the information in

Appendix A still would be considered "confidential" because the Exchange would not ordinarily disclose

it to the public and disclosure would cause substantial harm to the competitive position of the Exchange.

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
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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 pricerelated 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). It is also clear that the

exemption was intended to prevent the fundamental unfairness that can result from one side having

confidential information about the other in a business context. Cf. National Parks, supra, at 678 n.18.

The information set forth in Appendix A was voluntarily provided to the Commission to

support the Exchange’s self-certification that the Program extension is in compliance with applicable

provisions of the CEA and the regulations thereunder. This information is not of a type customarily

made available to the public by the Exchange. The analysis in Appendix A took significant time and

expense to develop and is an integral part of the Exchange’s contract. Consequently, disclosure of the

salient terms holds the potential for significant competitive harm to the Exchange. Additionally, it should

be noted that there is no regulatory requirement that such information be disclosed.

For all the foregoing reasons, the Exchange requests that the Commission grant the Exchange’s

request for confidential treatment for Appendix A and the information contained therein. If you have any

questions or need further information, please contact me at 212-748-4021 or at jason.fusco@theice.com.

Sincerely,

Jason V. Fusco

Assistant General Counsel

Market Regulation

Enc.

cc: Secretary of the Commission