1 North End Avenue New York, NY 10282 T 212 299 2200 F 212 299 2299 christopher.bowen@cmegroup.com cmegroup.com

Christopher Bowen 

Managing Director and Chief Regulatory Counsel

Legal Department

March 13, 2015

VIA ELECTRONIC PORTAL

Mr. Christopher J. Kirkpatrick

Office of the Secretariat

Commodity Futures Trading Commission

Three Lafayette Centre

1155 21st Street, N.W.

Washington, D.C. 20581

Re: FOIA Confidential Treatment Request

Dear Mr. Kirkpatrick:

By electronic portal today, March 13, 2015, New York Mercantile Exchange, Inc. (“NYMEX” or 

“Exchange”) submitted a supplemental rule certification filing (Submission No. 15-018S) to the 

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

appendix (“Appendix A”), which is attached. 

The Exchange is also providing the Commission with a detailed written justification on behalf of NYMEX 

and Argus Media Inc. (“Argus”), which sets forth grounds for this request for confidential treatment in 

Exhibit 1 herewith (“Exhibit 1”).

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

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

disclosure of Appendix A would reveal confidential commercial information of the submitter (NYMEX) and 

of Argus. 

Pursuant to Commission Regulation 145.9(d)(5), NYMEX requests that confidential treatment be 

maintained for Appendix A until further notice from the Exchange. 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. NYMEX 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 (212) 299-2200 should you have any questions concerning this letter.

Sincerely,

/s/ Christopher Bowen

Managing Director and Chief Regulatory Counsel

Enclosure
1 North End Avenue New York, NY 10282 T 212 299 2200 F 212 299 2299 christopher.bowen@cmegroup.com cmegroup.com

Exhibit 1

Detailed Written Justification 

Christopher Bowen 

Managing Director and Chief Regulatory Counsel

Legal Department

March 13, 2015

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 NYMEX Submission No. 15-

018S

Dear Mr. Kirkpatrick:

I am writing on behalf of New York Mercantile Exchange, Inc. (“NYMEX” or “Exchange”) and Argus Media 

Inc. (“Argus”). In accordance with the requirements set forth in Regulation 40.8 of the Commodity 

Exchange Act (“CEA”), the Exchange and Argus hereby submit their detailed written justification in 

support of continued confidentiality of the information set out in Appendix A to NYMEX Submission No.

15-018S (“Appendix A”) and respectfully request that the Commodity Futures Trading Commission 

(“CFTC” or “Commission”) not release the information contained therein. 

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

of Argus 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). Argus provided the 

confidential information in Appendix A to the Commission voluntarily in connection with the above 

referenced submission. Disclosure of the confidential information would reveal confidential commercial 

information of Argus, which Argus licensed to NYMEX for a fee in connection with the development of the

Coal (API 2) cif ARA (Argus/McCloskey) Short Dated Option on Calendar Futures Strip and Coal (API 4) 

fob Richards Bay (Argus/McCloskey) Short Dated Option on Calendar Futures Strip contracts. The terms 

of the license between Argus and NYMEX do not permit NYMEX to make the Confidential Information 

available to the public. Argus, which is in the business of gathering and providing information related to 

the energy markets, maintains the information as confidential and only discloses such information to 

persons who pay a license fee. The disclosure of the confidential information to the public would cause 

competitive harm to Argus by taking away its ability to collect license fees with respect to the confidential 

information and would cause competitive harm to the Exchange by limiting its ability to provide the cash 

market analysis needed for new product submissions.
1 North End Avenue New York, NY 10282 T 212 299 2200 F 212 299 2299 christopher.bowen@cmegroup.com cmegroup.com

Disclosure Would Likely Cause Competitive Harm to the Exchange and Argus

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

be considered “confidential” because it is information that the Exchange and Argus would not and have 

not disclosed to the public and its disclosure would cause substantial and irreparable harm to the 

competitive position of the Exchange and Argus. 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).

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 the Exemption 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).

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. Since Argus sells this information to individuals for a fee pursuant to strict usage restrictions and it is 

not distributed publicly, making the confidential information public would clearly be valuable to Argus’

competitors and cause substantial damage to it. 

Appendix A contains valuable commercial information with respect to pricing that was developed at 

significant cost and over a substantial period of time by Argus. It would destroy the value of that work if 

we were required to make that information available to the general public and/or Argus’ competitors, who 

could free ride with no cost. Additionally, there is no regulatory imperative to disclose such information.

For the foregoing reasons, the Exchange and Argus respectfully request that the Commission maintain 

the confidential privilege afforded to this type of information and refrain from releasing Appendix A as 

such action could prove irreparably harmful. 

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

Very truly yours,

/s/ Christopher Bowen

Managing Director and Chief Regulatory Counsel