55 East 52nd Street

New York, NY 10055

August 21, 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. 23-117 (“Submission”), a self-certification of the

amendments to the MSCI Index Contract Investment Bank Trading Incentive 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. 
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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 Program took significant time, analysis and expense to develop and is an 

integral part of the Exchange’s competitive strategy for growing the covered markets. 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.