June 16, 2023

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. 23-100 (“Submission”), a self-certification of the 

amendments to the IFC Liquidity Provider Program (“Program”), was simultaneously filed today with the 

Secretary of the Commission. 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 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). 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 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@ice.com.

Sincerely,

Jason V. Fusco

Assistant General Counsel

Market Regulation

Enc.

cc: Secretary of the Commission