55 East 52nd Street

New York, NY 10055

May 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. 23-69 (“Submission”), a self-certification of the 

extension of the Average Price Option 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 

showing of actual competitive harm. Rather, "actual competition and the likelihood of substantial 
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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

Enc.

cc: Secretary of the Commission