20 S Wacker Dr Chicago, IL 60606 T 312 466 7478 tim.elliott@cmegroup.com cmegroup.com

Timothy Elliott

Managing Director and Chief Regulatory Counsel

Legal Department

October 17, 2023

VIA ELECTRONIC PORTAL

Christopher J. Kirkpatrick

Office of the Secretariat

Commodity Futures Trading Commission

Three Lafayette Centre

1155 21st Street, N.W.

Washington, DC 20581

Re: FOIA Confidential Treatment Request 

Dear Mr. Kirkpatrick:

By electronic portal dated today, October 17, 2023, Commodity Exchange, Inc. (“COMEX” or “Exchange”) 

submitted a supplemental rule certification filing (Submission No. 23-437S) to the Commodity Futures 

Trading Commission (“CFTC” or “Commission”). This supplemental filing includes an appendix 

(“Appendix A”), which is attached. 

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

Regulation 145.9(d), COMEX requests confidential treatment of Appendix A, on the grounds that 

Appendix A contains confidential commercial information of the submitter (COMEX). Pursuant to 

Commission Regulation 145.9(d)(5), COMEX requests that confidential treatment be maintained for 

Appendix A until further notice from COMEX. We also request that the Commission notify the 

undersigned immediately after receiving any FOIA request for said Appendix A or any other court order, 

subpoena or summons for same. Finally, we request that we be notified in the event the Commission 

intends to disclose such Appendix A to Congress or to any other governmental agency or unit pursuant to 

Section 8 of the CEA. COMEX does not waive its notification rights under Section 8(f) of the CEA with 

respect to any subpoena or summons for such Appendix A.

Please contact the undersigned at (312) 466-7478 should you have any questions concerning this letter.

Sincerely,

/s/ Timothy Elliott

Managing Director and Chief Regulatory Counsel

Enclosure: Exhibit 1
20 S Wacker Dr Chicago, IL 60606 T 312 466 7478 tim.elliott@cmegroup.com cmegroup.com

EXHIBIT 1

Detailed Written Justification

Timothy Elliott

Managing Director and Chief Regulatory Counsel

Legal Department

October 17, 2023

VIA Electronic Portal

Assistant Secretary of the Commission for 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: Appendix A to COMEX Submission No. 23-437S

Dear FOIA Compliance Staff:

I am writing on behalf of Commodity Exchange, Inc. (“COMEX” or “Exchange”) a subsidiary of CME Group Inc. In 

accordance with the requirements set forth in Commodity Futures Trading Commission (“CFTC” or “Commission”) 

Regulation 40.8, COMEX hereby submits its detailed written justification in support of continued confidentiality of the 

information set out in Appendix A to Submission No. 23-437S (“Appendix A”) and respectfully requests that the 

Commission not release the information contained therein. 

As discussed more fully below, Appendix A contains confidential and proprietary commercial information of COMEX 

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). COMEX provided the confidential information in Appendix A to the 

Commission voluntarily in connection with the above referenced submission in order to demonstrate to the 

Commission the compliance of the incentive program with the CEA and relevant Commission Regulations. The 

incentive structure set out in Appendix A was developed by COMEX staff at significant cost and over a substantial 

period of time. COMEX would not customarily make such incentive structures available to the public. 

Disclosure Would Likely Cause Competitive Harm to COMEX 

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

considered “confidential” because it is information that COMEX would not have disclosed to the public and its 

disclosure would cause substantial harm to the competitive position of COMEX. 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).
20 S Wacker Dr Chicago, IL 60606 T 312 466 7478 tim.elliott@cmegroup.com cmegroup.com

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 COMEX

COMEX 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 COMEX. 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. 

Appendix A contains valuable commercial information with respect to the concessions that we found to be necessary 

to create a liquid marketplace in the products under the incentive program. 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. The incentive for 

exchanges to develop competing market making and trading incentive programs will be destroyed. Additionally, there 

is no regulatory imperative to disclose such information.

For the foregoing reasons, COMEX respectfully requests that the Commission maintain the confidential privilege 

afforded to this type of information and refrain from releasing Appendix A as such action could prove harmful to 

COMEX. 

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

Very truly yours, 

/s/ Timothy Elliott

Managing Director and Chief Regulatory Counsel