300 Vesey Street New York, NY 10282 T 212 299 2200 F 212 301 4645 christopher.bowen@cmegroup.com cmegroup.com

Christopher Bowen 

Managing Director and Chief Regulatory Counsel 

Legal Department 

September 15, 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, September 15, 2023, New York Mercantile Exchange, Inc. (“NYMEX”) 

(“EXCHANGE” or “Exchange”) submitted a supplemental product certification filing (Submission No. 23-

246S) to the Commodity Futures Trading Commission (“CFTC” or “Commission”). The supplemental filing 

includes an Appendix A for which the Exchange and Argus Media (“Argus”) and S&P Global Platts (“Platts”) 

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 Argus 

and Platts. 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 (212) 299-2200 

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

Sincerely,

/s/ Christopher Bowen

Managing Director and Chief Regulatory Counsel

Attachment: Exhibit 1
300 Vesey Street New York, NY 10282 T 212 299 2200 F 212 301 4645 christopher.bowen@cmegroup.com cmegroup.com

Exhibit 1

DETAILED WRITTEN JUSTIFICATION

Christopher Bowen 

Managing Director and Chief Regulatory Counsel 

Legal Department 

September 15, 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 New York Mercantile 

Exchange, Inc. (“NYMEX”) Submission No. 23-246S

Dear FOIA Compliance Staff:

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

Media (“Argus”) and S&P Global Platts (“Platts”). In accordance with the requirements set forth in 

Commodity Futures Trading Commission (“CFTC” or “Commission”) Regulation 40.8, the Exchange and 

both Argus and Platts hereby submit their detailed written justification in support of continued confidentiality 

of the information set out in Appendix A to Submission No. 23-246S (“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 

Argus and Platts 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). Argus and Platts 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 and Platts, which both Argus and Platts licensed to the Exchange for a fee in 

connection with the development of the Mini Gasoline Eurobob Non-Oxy NWE Barges (Argus) Futures 

(commodity code OMN), Mini Gasoline Eurobob Non-Oxy NWE Barges (Argus) BALMO Futures 

(commodity code MBO), Gasoline Eurobob Non-Oxy NWE Barges (Argus) Crack Spread (1000mt) Futures 

(commodity code NBO), Gasoline Eurobob Non-Oxy NWE Barges (Argus) Crack Spread (1000mt) BALMO 

Futures (commodity code MCB), Mini Gasoline Eurobob Non-Oxy NWE Barges (Argus) Crack Spread 

(100mt) Futures (commodity code MCS), Gasoline Eurobob Non-Oxy NWE Barges (Argus) vs European 

Naphtha CIF NWE (Platts) Futures (commodity code MCF), Gasoline Eurobob Non-Oxy NWE Barges 
300 Vesey Street New York, NY 10282 T 212 299 2200 F 212 301 4645 christopher.bowen@cmegroup.com cmegroup.com

(Argus) vs European Naphtha CIF NWE (Platts) BALMO Futures (commodity code MCN), Singapore 

Gasoline 92 Unleaded (Platts) vs Gasoline Eurobob Non-Oxy NWE Barges (Argus) BALMO Futures 

(commodity code SGO) and Gasoline Eurobob Non-Oxy NWE Barges (Argus) Crack Spread Average Price 

Option (commodity code EBO).

The terms of the licenses between both Argus and Platts and the Exchange do not permit the Exchange to 

make the confidential information available to the public. Argus and Platts, which are in the business of 

gathering and providing information related to the Crude Oil and Refined Product markets, maintain 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 both Argus and 

Platts by taking away their ability to collect license fees with respect to the confidential information and 

would cause competitive harm to the Exchange by limiting their ability to provide the cash market analysis 

needed for new product submissions.

Disclosure Would Likely Cause Competitive Harm to the Exchange and Argus and Platts

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 and Platts 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 and Platts. 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 both Argus and Platts

sell this information to individuals for a fee pursuant to strict usage restrictions and it is not distributed 
300 Vesey Street New York, NY 10282 T 212 299 2200 F 212 301 4645 christopher.bowen@cmegroup.com cmegroup.com

publicly, making the confidential information public would clearly be valuable to Argus and Platts’

competitors and cause substantial damage to them.

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 and Platts. It would destroy the value of that 

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

and Platts’ 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 and Platts 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. 

Should you have any questions concerning the above, please contact the undersigned at (212) 299-2200 

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

Sincerely,

/s/ Christopher Bowen

Managing Director and Chief Regulatory Counsel