NFA has received a number of requests from CPO Members for information on how to request confidential treatment of their commodity pool annual reports that are filed with NFA. Requests for confidential treatment are governed by Commodity Futures Trading Commission ("Commission") Regulation 145.9, which contains detailed requirements for submitting a request for confidential treatment of information filed with the Commission, including commodity pool annual reports. The requirements for submitting those requests as they apply to the commodity pool annual reports filed with NFA ("confidential treatment requests") are summarized below.
You must file the commodity pool annual report with NFA. If you make a confidential treatment request concerning that report you must mark each page or each appropriate segregable portion of the report you file with NFA with a prominent stamp, typed legend or other suitable form of notice stating "Confidential Treatment Requested by [CPO's name]." If that is impractical, you must attach a cover sheet to the report prominently marked "Confidential Treatment Requested by [CPO's name]."
You must submit all confidential treatment requests to the Assistant Secretary of the Commission for FOIA Matters, Privacy and Sunshine Acts Compliance ("Assistant Secretary, FOIA"). You may send them to the Commission by email to FOIAsubmissions@cftc.gov or in hardcopy format to Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. NFA suggests that if you send requests in hardcopy format that you send them by overnight delivery and that you retain a copy of the delivery confirmation notice from the overnight carrier.
To avoid the possibility that the Commission would receive and process a request for the annual report before receiving the confidential treatment request, you must submit the confidential treatment request to the Commission on the same date on which you electronically file the report with NFA or as soon thereafter as possible.
You must also submit a copy of the request to NFA at the same time that you file the annual report to which it applies.
Submission to NFA of the copy of confidential treatment request will not satisfy the requirement to submit the original confidential treatment request to the Commission.
The confidential treatment request must specify one of six grounds set forth in Commission Regulation 145.9(d)(1)(i)-(vi) as the basis for the request. The ground that is most likely to apply in the context of a pool annual report is that disclosure would reveal the requester's trade secrets or confidential or commercial or financial information. You do not need to include in the request a detailed explanation of the grounds asserted for the request. However, pursuant to Commission Regulation 145.9(e)(1), at the time a FOIA request is made that seeks the material for which you have requested confidential treatment, the Commission may require you to provide a detailed written justification for the confidential treatment request.
You must clearly mark the confidential treatment request as "FOIA Confidential Treatment Request" and must include the CPO's name, address and telephone number. If the CPO changes its name, address or telephone number after submitting the confidential treatment request, you must notify the Assistant Secretary, FOIA of that change.
The request must also state the length of time for which you are seeking confidential treatment.
Finally, the confidential treatment request must specify clearly and precisely the material that is the subject of the confidential treatment request. To do this you can:
You should note that you must not employ any method of specifying the material for which confidential treatment is sought that makes it unduly difficult for the Commission to read the report, including all portions claimed to be confidential, in its entirety.
If you fail to follow these procedures, the Assistant Secretary, FOIA may summarily reject the confidential treatment request with permission to re-file a proper petition. However, the failure of the Assistant Secretary, FOIA to summarily reject the confidential treatment request does not necessarily indicate that you have complied with these procedures. As described in Commission Regulations 145.9(d)(8) and (9), a confidential treatment request may also be summarily rejected if it pertains to any reasonably segregable material that is not exempt from public disclosure under the Freedom of Information Act.
An initial determination on a confidential treatment request will not be made unless and until a FOIA request is made for the material that is the subject of the confidential treatment request. The processes for appealing from that initial determination and requesting extension of time limits are described in Commission Regulations 145.9(g)-(h).
NFA Members can file many of their required documents electronically.