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

Timothy Elliott

Managing Director and Chief Regulatory Counsel 

Legal Department 

November 22, 2023

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 dated today, November 22, 2023, Commodity Exchange, Inc. (“COMEX” or “Exchange”) 

submitted a supplemental product certification filing (Submission No. 23-453S) to the Commodity Futures 

Trading Commission (“CFTC” or “Commission”). The supplemental filing includes an Appendix A for which 

the Exchange and Fastmarkets are submitting a detailed written justification setting forth grounds for this 

request for confidential treatment.

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

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

disclosure of Appendix A would reveal confidential commercial information of the Exchange and of 

Fasmarkets. Pursuant to Commission Regulation 145.9(d)(5), the Exchange requests that confidential 

treatment be maintained for Appendix A until further notice from the Exchange. The Exchange also 

requests 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, the Exchange requests

notification 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. The Exchange does not waive its notification 

rights under Section 8(f) of the CEA with respect to any subpoena or summons for such Appendix A.

Should you have any questions concerning the above, please contact the undersigned at (312) 466-7478

or via e-mail at CMEGSubmissionInquiry@cmegroup.com.

Sincerely,

/s/ Timothy Elliott

Managing Director and Chief Regulatory Counsel

Attachment: Exhibit 1
20 S. Wacker Drive 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 

November 22, 2023

VIA ELECTRONIC PORTAL

Assistant Secretary of the Commission for FOIA,

Privacy and Sunshine Acts Compliance

Commodity Futures Trading Commission

Three Lafayette Centre, 8th Floor

1155 21st Street, N.W.

Washington, DC 20581

Re: FOIA Confidential Treatment Request: Appendix A to COMEX Submission No. 23-

453S

Dear FOIA Compliance Staff:

I am writing on behalf of Commodity Exchange, Inc. (“COMEX” or “Exchange”) and Fastmarkets

(“Fastmarkets”). In accordance with the requirements set forth in Commodity Futures Trading Commission 

(“CFTC” or “Commission”) Regulation 40.8, the Exchange and Fastmarkets hereby submit their detailed 

written justification in support of continued confidentiality of the information set out in Appendix A to 

Submission No. 23-453S (“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 

Fastmarkets 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). Fastmarkets 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 Fastmarkets, which Fastmarkets licensed to the Exchange for a fee in connection with the 

development of the Lithium Hydroxoxide CIF CJK (Fastmarkets) Average Price Option and Cobalt Metal 

(Fastmarkets) Average Price Option contract. 

The terms of the license between Fastmarkets and the Exchange do not permit the Exchange to make the 

confidential information available to the public. Fastmarkets, which is in the business of gathering and 

providing information related to the freight 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 Fastmarkets by taking away its ability to collect license fees 
20 S. Wacker Drive Chicago, IL 60606 T 312 466 7478 tim.elliott@cmegroup.com cmegroup.com

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.

Disclosure Would Likely Cause Competitive Harm to the Exchange and Fastmarkets

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

considered “confidential” because it is information that the Exchange and Fastmarkets 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 Fastmarkets. 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).

The Exchange 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 CME. 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. Since Fastmarkets 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 Fastmarkets’ 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 Fastmarkets. It would destroy the value of that 

work if the Exchange was required to make that information available to the general public and/or 

Fastmarkets’ 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 Fastmarkets 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. 
20 S. Wacker Drive Chicago, IL 60606 T 312 466 7478 tim.elliott@cmegroup.com cmegroup.com

Should you have any questions concerning the above, please contact the undersigned at (312) 466-7478

or via e-mail at CMEGSubmissionInquiry@cmegroup.com.

Sincerely,

/s/ Timothy Elliott

Managing Director and Chief Regulatory Counsel