Confidential Treatment of Section 4s Implementing Regulations Submissions
Please note: Firms may not withhold documents or provide documents from which information is redacted without NFA's prior consent. Additionally, please be advised that it is NFA's longstanding policy not to recognize a claim of privilege (including attorney-client privilege) as a proper basis for withholding documents from NFA or redacting information from them.
Requests for confidential treatment of Section 4s Implementing Regulations submissions are governed by CFTC Regulation 145.9. The requirements for submitting requests for confidential treatments specific to Section 4s Implementing Regulations submissions filed with NFA are as follows:
- If you make a confidential treatment request regarding a Section 4s Implementing Regulation submission, you must mark each page or each appropriate segregable portion of the report filed 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]".
- You must submit all confidential treatment requests to the Assistant Secretary of the CFTC for FOIA Matters, Privacy and Sunshine Acts Compliance. You may send them to the CFTC by email to FOIAsubmissions@cftc.gov or in hardcopy format to Three Lafayette Centre, 1155 21st Street, NW, Washington, DC 20581.
- To avoid the possibility that the CFTC would receive and process a request for a Section 4s Implementing Regulation submission before receiving the confidential treatment request, you must submit the confidential treatment request to the CFTC on the same date that you electronically file the report with NFA or as soon after 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. Please note: Submitting to NFA the copy of confidential treatment request will not satisfy the requirement to submit the original confidential treatment request to the CFTC.
Components of a Confidential Treatment Request
- The confidential treatment request must specify one of six grounds set forth in CFTC 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 a detailed explanation of the grounds asserted for the request. However, pursuant to CFTC 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 CFTC 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 state the length of time for which you are seeking confidential treatment.
- The request must specify 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 in which the confidential material has been obliterated, deleted or clearly marked, and one unmarked copy; or
- Clearly describe the material for which confidential treatment is sought.
- You must not employ any method of specifying the material for which confidential treatment is sought that makes it difficult for the CFTC to read the report, including all portions claimed to be confidential, in its entirety.
Determination on a Confidential Treatment Request
An initial determination on a confidential treatment request will not be made 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 CFTC Regulations 145.9(g)-(h).
If you fail to follow these procedures, the Assistant Secretary, FOIA may reject the confidential treatment request with permission to re-file a proper petition. As described in CFTC Regulations 145.9(d)(8) and (9), a confidential treatment request may also be rejected if it pertains to any reasonably segregable material that is not exempt from public disclosure under the Freedom of Information Act.