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

July 28, 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, July 28, 2023, New York Mercantile Exchange, Inc. (“NYMEX” or 

“Exchange”) submitted a supplemental rule certification filing (Submission No. 23-226S) to the 

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

Appendix A for which the Exchange and Argus Media (“Argus”) is 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 Argus. 

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 

July 28, 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 NYMEX Submission No. 23-

226S

Dear FOIA Compliance Staff:

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

(“Argus”), a subsidiary of CME Group Inc. In accordance with the requirements set forth in Commodity 

Futures Trading Commission (“CFTC” or “Commission”) Regulation 40.8, the Exchange hereby submits 

its detailed written justification in support of continued confidentiality of the information set out in Appendix 

A to Submission No. 23-226S (“Appendix A”) and respectfully requests that the Commission not release 

the information contained therein. 

As discussed more fully below, Submission No. 23-226S contains confidential and proprietary commercial 

information of the Argus 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 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 the Exchange for a fee in connection with the development 

of the Contract. 

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

confidential information available to the public. Argus, 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 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.
300 Vesey Street New York, NY 10282 T 212 299 2200 F 212 301 4645 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 have 

disclosed to the public and its disclosure would cause substantial 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 Exemption 4 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 the Exchange. 

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 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. This information was developed at significant cost 

and over a substantial period of time by Argus. 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’ 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 requests that the Commission maintain 

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

such action could prove harmful to the Exchange. 
300 Vesey Street New York, NY 10282 T 212 299 2200 F 212 301 4645 christopher.bowen@cmegroup.com cmegroup.com

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