November 8, 2018

FOIA CONFIDENTIAL TREATMENT REQUEST

Pursuant to 17 C.F.R. § 145.9

VIA PORTAL

Assistant Secretary of the Commission for FOI,

 Privacy and Sunshine Acts Compliance

Commodity Futures Trading Commission

Three Lafayette Centre

1155 21st Street, N.W.

Washington, D.C. 20581

Re: Petition for Confidential Treatment

Dear Sir or Madam:

Nodal Exchange, LLC (“Nodal Exchange” or “Exchange”) Submissions 18-032.001 and 18-032.254

(“Submissions”), self-certifications of 254 new environmental futures and options contracts to be listed by 

the Exchange on November 16, 2018, were filed with the Secretary of the Commission between November 

8, 2018 and November 14, 2018. As discussed more fully below, Exhibit B to the Submissions (“Exhibit 

B”) contains confidential and proprietary commercial information of the Exchange which is exempt from 

disclosure pursuant to Section 8 of the Commodity Exchange Act (“CEA”), the Commission Regulation 

145.9(d), and section 522(b)(4) of the Freedom of Information Act (“FOIA”) as explained below, and Nodal 

Exchange respectfully requests that the Commission not release the information contained therein. 

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

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

the Exchange upon receiving any FOIA request or any other request for disclosure of Exhibit B.

Justification of Confidential Treatment

Section 522(b)(4) of FOIA protects “trade secrets and commercial or financial information obtained from 

a person [that is] privileged or confidential” from its disclosure requirements. Judicial analysis of section 

522(b)(4) of FOIA has found that 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) (applying the tests detailed in Critical Mass). Nodal Exchange provided the 

confidential information in Exhibit B to the Commission voluntarily in the Submission in order to furnish 

useful commercial information and provide assurance as to the reliability of the Submissions. 

Notwithstanding the presumption of confidentiality, the confidential information in Exhibit B would still 

be considered “confidential” because Nodal Exchange would not disclose it to the public and its disclosure 

would cause substantial harm to Nodal Exchange’s competitive position. 
Assistant Secretary of the Commission for FOI,

 Privacy and Sunshine Acts Compliance

November 8, 2018

Page 2

FOIA was enacted to facilitate the disclosure of information to the public, but was clearly not intended to 

allow business competitors to avail themselves of 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). In Gulf & Western 

Industries, Inc. v. United States, 615 F.2d 527 (D.C. Cir. 1979), the Court of Appeals concluded that 

information is confidential for purposes of FOIA if (1) it is not of the type normally released to the public 

by the submitter and (2) 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, 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. 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. It is clear that the FOIA 

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, 547 F.2d at 678 n.18. 

The information in Exhibit B was voluntarily provided to the Commission to support the Exchange’s selfcertification that the speculative position limits for the new products are in compliance with applicable 

provisions of the CEA and the Commission’s regulations. This information is not of a type made available 

to the public by the Exchange. The information in Exhibit B took significant time, analysis, and expense 

to develop and is an integral part of the Exchange’s new products. Disclosure of Exhibit B creates the 

potential for significant competitive harm to Nodal Exchange. 

For the foregoing reasons, Nodal Exchange requests that the Commission grant this request for confidential 

treatment for Exhibit B and the information contained therein. Should you have any questions or need 

additional information, please contact me at 703-962-9853 or markotic@nodalexchange.com.

Very truly yours,

/s/ Max Markotic

Senior Compliance Manager