Home > Swaps Information > Regulatory Information for Swap Dealers (SDs) and Major Swap Participants (MSPs) > Requests for Confidential Treatment of the Section 4s Implementing Regulations Submissions

Requests for Confidential Treatment of the Section 4s Implementing Regulations Submissions

Applicants for registration as Swap Dealers or Major Swap Participants must demonstrate compliance or the ability to comply with certain substantive regulations in order to become registered. The regulations, known as the Section 4s Implementing Regulations, include: capital and margin, reporting and recordkeeping, daily trading records, business conduct standards, documentation standards, monitoring of trading, risk management procedures, disclosure information, ability to obtain information, conflict of interest, chief compliance officer, and, with respect to uncleared swaps, segregation.

Applicants must demonstrate compliance or the ability to comply with each Section 4s Implementing Regulation by submitting, on or before the date compliance with the pertinent Section 4s Implementing Regulation is required, appropriate documentation to NFA for review. The Commodity Futures Trading Commission (Commission) stated in its final rules regarding registration of SDs and MSPs that it intends that SD and MSP applicants may seek confidential treatment of their submissions. However, the CFTC has not yet specified which of these submissions will be treated as public or non-public registration records. Thus, applicants that want their Section 4s Implementing Regulations submissions not to be publicly available will need to request confidential treatment with the CFTC of their Section 4s Implementing Regulations submissions that are filed with NFA.

Requests for confidential treatment are governed by Commission Regulation 145.9, which contains detailed requirements for submitting a request for confidential treatment of information filed with the Commission. The requirements for submitting those requests as they apply to the Section 4s Implementing Regulations submissions filed with NFA ("confidential treatment requests") are summarized below.

You must file the Section 4s Implementing Regulations submissions with NFA on or before the date compliance with the particular Section 4s Implementing Regulation is required. Since the dates on which compliance with all Section 4s Implementing Regulations will not be the same, if you want confidential treatment of the submission, you must request it each time you file a specific Section 4s Implementing Regulation submission. If you make a confidential treatment request concerning a Section 4s Implementing Regulation submission you must mark each page or each appropriate segregable portion of the submission you file with NFA with a prominent stamp, typed legend or other suitable form of notice stating "Confidential Treatment Requested by [applicant's name]." If that is impractical, you must attach a cover sheet to the report prominently marked "Confidential Treatment Requested by [applicant's name]."

Do not submit your original confidential treatment request to NFA.

You must submit all original confidential treatment requests to the Commission.

You may send them to the Commission by email to FOIAsubmissions@cftc.gov or in hardcopy format to Assistant Secretary of the Commission for FOIA Matters, Privacy and Sunshine Acts Compliance ("Assistant Secretary, FOIA"), 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 Section 4s Implementing Regulation submission before receiving the confidential treatment request, you must submit the confidential treatment request to the Commission on the same date on which you file the submission 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 submission 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 Section 4s Implementing Regulation submission 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 applicant's name, address and telephone number. If the applicant 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:

  • Segregate the material for which confidential treatment is sought;
  • Submit two copies of the report: one copy from which the material for which confidential treatment is sought has been obliterated, deleted or clearly marked and one unmarked copy; or
  • Clearly describe the material for which confidential treatment is sought.

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).

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