[Federal Register Volume 81, Number 168 (Tuesday, August 30, 2016)]
[Proposed Rules]
[Pages 59551-59581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20745]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 165

RIN 3038-AE50


Whistleblower Awards Process

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or 
``CFTC'') is proposing to amend its regulations to enhance the process 
for reviewing whistleblower claims and to make related changes to 
clarify staff authority to administer the whistleblower program. The 
Commission also is reinterpreting its anti-retaliation authority and 
proposing appropriate rule amendments to implement that authority.

DATES: Comments must be received on or before September 29, 2016.

[[Page 59552]]


ADDRESSES: You may submit comments, identified by RIN 3038-AE50, by any 
of the following methods:
     CFTC Web site: http://comments.cftc.gov. Follow the 
instructions for submitting comments through the Comments Online 
process on the Web site.
     Mail: Send to Christopher Kirkpatrick, Secretary of the 
Commission, Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street NW., Washington, DC 20581.
     Hand Delivery/Courier: Same as Mail, above.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.

Please submit your comments using only one of these methods.
    All comments must be submitted in English, or if not, accompanied 
by an English translation. Comments will be posted as received to 
www.cftc.gov. You should submit only information that you wish to make 
available publicly. If you wish the Commission to consider information 
that is exempt from disclosure under the Freedom of Information Act 
(``FOIA''), a petition for confidential treatment of the exempt 
information may be submitted according to the procedure established in 
Sec.  145.9 of the Commission's FOIA regulations (17 CFR 145.9).
    The Commission reserves the right, but shall have no obligation, to 
review, pre-screen, filter, redact, refuse, or remove any or all of 
your submission from www.cftc.gov that it may deem to be inappropriate 
for publication, such as obscene language. All submissions that have 
been redacted or removed that contain comments on the merits of the 
rulemaking will be retained in the public comment file and will be 
considered as required under the Administrative Procedure Act and other 
applicable laws, and may be accessible under the FOIA.

FOR FURTHER INFORMATION CONTACT: Anthony Hays, Counsel, (202) 418-5584, 
[email protected], Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

    In 2011, the Commission adopted its part 165 regulations, which 
implement section 23 of the Commodity Exchange Act (``CEA''), 7 U.S.C. 
26, by establishing a regulatory framework for the whistleblower 
program. See Whistleblower Incentives and Protection, 76 FR 53172 
(August 25, 2011). Part 165 provides for the payment of awards, subject 
to certain limitations and conditions, to whistleblowers who 
voluntarily provide the Commission with original information about a 
violation of the CEA that leads to the successful enforcement of an 
action brought by the Commission that results in monetary sanctions 
exceeding $1,000,000 (``Covered Action''), or the successful 
enforcement of a related action, as that term is defined in the rules, 
or both.
    The award amount must be between 10 and 30 percent of the amount of 
monetary sanctions collected in a Covered Action or a related action 
and is paid from the CFTC Customer Protection Fund. The Commission has 
discretion regarding the amount of an award based on the significance 
of the information, the degree of assistance provided by the 
whistleblower, and other criteria.
    Since the whistleblower program was established in 2011, the need 
for certain improvements has become apparent. As explained further 
below, this rulemaking proposal addresses that need with targeted 
revisions to the claims review process and to the authority of staff to 
administer the whistleblower program. The Commission also is 
reinterpreting its anti-retaliation authority under CEA section 
23(h)(1) and proposing rule amendments to implement that authority. 
Finally, the Commission is proposing to amend its rules to permit 
whistleblowers to receive awards based on both Covered Actions and the 
successful enforcement of related actions, as defined in the rules.

II. Proposed Amendments

    The Commission proposes to make targeted changes to the process for 
reviewing whistleblower award claims. In considering what changes to 
make, the Commission has been informed by its experience since the 
inception of its program, as well as the experience of the Securities 
and Exchange Commission (``SEC'') in the administration of its 
whistleblower program. In many ways, the SEC program is similar to the 
Commission's. Both were created under the Dodd-Frank Act,\1\ although 
the SEC also had prior experience in administering its insider trading 
bounty program.\2\ The Commission believes that these proposed 
amendments will, among other things, significantly improve the 
administration of its review process.
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    \1\ Section 922 of the Dodd-Frank Act amended the Securities 
Exchange Act of 1934 by adding section 21F, which provides for the 
SEC's whistleblower program. Similar to the CFTC program, the SEC 
program authorizes monetary awards to eligible individuals who 
voluntarily provide original information that leads to successful 
SEC enforcement actions resulting in the imposition of monetary 
sanctions over $1,000,000 and certain related successful actions. 
The SEC can make awards ranging from 10 to 30 percent of the 
monetary sanctions collected, which are paid from its Investor 
Protection Fund.
    Section 924(d) of the Dodd-Frank Act directed the SEC to 
establish a separate office to administer the whistleblower program. 
In February 2011, the SEC established the Office of the 
Whistleblower within the Division of Enforcement to carry out this 
mandate.
    \2\ This SEC program was established in 1989 under Section 
21A(e) of the Securities Exchange Act of 1934, which authorized the 
SEC to award a bounty to a person who provided information leading 
to the recovery of a civil penalty from an insider trader or related 
parties. Section 21A(e) was enacted in 1988 as part of the Insider 
Trading and Securities Fraud Enforcement Act of 1988 and was 
repealed in 2010 by section 923(b) of the Dodd-Frank Act.
    The SEC abolished its bounty program when it established its 
whistleblower program under the Dodd-Frank Act.
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Eligibility Requirements for Consideration of an Award

    Currently, Sec.  165.5 specifies the requirements for consideration 
of an award by the Commission. The Commission proposes to revise this 
rule to make clear that a claimant may receive an award in a Covered 
Action, in a related action, or both. The Commission also proposes to 
make clear that a claimant may be eligible for an award by providing 
the Commission original information without being the original source 
of the information. In addition, based on its experience in 
administering the whistleblower program, the Commission proposes to 
revise the definition of ``original source'' in Sec.  165.2(l) to 
extend the timeframe from 120 to 180 days that a whistleblower has to 
file a Form TCR pursuant to Sec.  165.3 after previously providing the 
same information to Congress, any other federal or state authority, a 
registered entity, a registered futures association, a self-regulatory 
organization, or to any of the persons described in Sec.  165.2(g)(4) 
and (5). Finally, in Sec.  165.5(c), the Commission is providing notice 
that it has discretion to waive procedural rules based upon a showing 
of extraordinary circumstances.

Award Claims Review Under Sec.  165.7

    Currently, Sec.  165.7(d) provides for the review of whistleblower 
award claims. The Commission proposes to revise this rule in order to 
better define and specify each step in the award review process. Those 
steps are spelled out in proposed new paragraphs (f) through (l), along 
with new provisions regarding withdrawing award applications in

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proposed paragraph (d) and disposition of claims that do not relate to 
Notices of Covered Actions (``NCAs'') or final judgments in related 
actions in proposed new paragraph (e). These amendments would establish 
a review process similar to that established under the SEC's 
whistleblower rules. See 17 CFR 240.21F-10(d) through (h) (2014). 
Specifically, the Commission has proposed to discontinue the 
Whistleblower Award Determination Panel and replace it with a review 
process handled by a Claims Review Staff designated by the Director of 
the Division of Enforcement in consultation with the Executive 
Director.\3\ The Commission expects that the Claims Review Staff will 
be assisted by the Whistleblower Office staff within the Division of 
Enforcement.\4\ The proposed rules also provide an additional means for 
the submission of the required Form WB-APP, Application for Award for 
Original Information Provided Pursuant to section 23 of the Commodity 
Exchange Act, in Sec.  165.7(b)(1); explain the deadline for filing 
Form WB-APP under different timing scenarios for final judgments in 
covered judicial or administrative actions and related actions in 
proposed Sec.  165.7(b)(3); and, make a conforming change by 
renumbering prior paragraph (e) in Sec.  165.7 as paragraph (l).
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    \3\ Designation and composition of the Claims Review Staff is 
described in proposed Sec.  165.15(a)(2).
    \4\ The Commission expects that the Whistleblower Office will 
provide assistance to the Claims Review Staff in the form of 
analysis of a claimant's eligibility and, if applicable, a 
recommendation of a proposed award amount. Any such assistance 
provided by the Whistleblower Office to the Claims Review Staff will 
be prepared exclusively to assist the Claims Review Staff in 
deciding a claim and will be deliberative process materials that 
will not be available to claimants under Sec.  165.10 or part of the 
record on appeal under Sec.  165.13. The proposed rules contain 
clarifying changes to these rules.
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    New proposed Sec.  165.7(e) addresses the Commission's experience 
of receiving a number of Form WB-APPs that appear to be unrelated to 
NCAs or final judgments in related actions as well as Form WB-APPs that 
do not relate to a previously filed Form TCR. In order to reduce the 
administrative burden on the Commission, the Commission proposes that 
such facially ineligible claims primarily be handled by the 
Whistleblower Office. The Whistleblower Office will notify the claimant 
of the deficiencies in the Form WB-APP and provide an opportunity for 
the claimant to correct the deficiencies or withdraw the claim before 
the finalization of the denial of the claim. If the claimant does not 
correct the deficiencies or withdraw the claim, the Whistleblower 
Office will notify the Claims Review Staff of the proposed denial, 
which will be called a Proposed Final Disposition, and any member of 
the Claims Review Staff will have the opportunity to request review of 
the proposed denial. If no member of the Claims Review Staff requests 
review, the Proposed Final Disposition will become the final order of 
the Commission. If a member of the Claims Review Staff requests review, 
the Claims Review Staff will review the record for the denial and 
either remand to the Whistleblower Office for further action or issue a 
final order of the Commission, which consists of the proposed denial. 
Additionally, proposed Sec.  165.7(d) would permit a claimant to 
withdraw an award application at any point in the review process by 
submitting a written request to the Whistleblower Office.\5\
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    \5\ A claimant may choose to withdraw a claim for any reason 
including that it was filed erroneously. An example would be if a 
claimant intended to submit a tip via a Form TCR but mistakenly 
submitted a claim via a WB-APP. The proposed addition to Sec.  
165.7(d) would allow the claimant to withdraw the WB-APP and file a 
Form TCR.
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    Under proposed Sec.  165.7(f),\6\ the Claims Review Staff will 
evaluate all timely award applications submitted on a Form WB-APP in 
response to the NCA or a final judgment in a related action.\7\ During 
the review process, the Whistleblower Office may require that claimants 
provide additional information, explanation, or assistance as set forth 
in Sec.  165.5(b)(3). For award claims on related actions, as described 
in Sec.  165.7(f), the Whistleblower Office may request additional 
information from the claimant to demonstrate that the claimant 
voluntarily provided the governmental agency, regulatory authority, or 
self-regulatory organization the same original information that led to 
the Commission's successful enforcement action and the successful 
enforcement of the related action. The Whistleblower Office may also 
seek assistance and confirmation from the other agency in making this 
determination.
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    \6\ Proposed Sec.  165.7(f) is a revised version of current 
Sec.  165.7(d).
    \7\ The Whistleblower Office will not post any notices for 
related actions. It will be the claimant's responsibility to track 
the progress and final resolution of any related action and to file 
a claim with the Commission under Sec.  165.7(b).
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    Under proposed Sec.  165.7(g)(1), following the initial evaluation 
by the Claims Review Staff, the Claims Review Staff will issue a 
Preliminary Determination setting forth a preliminary assessment as to 
whether the claim should be granted or denied and, if granted, setting 
forth the proposed award percentage amount. The Whistleblower Office 
will send a copy of the Preliminary Determination to the claimant. The 
proposed amendments would allow a claimant the opportunity to contest 
the Preliminary Determination.\8\
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    \8\ If a claimant has no objection to the Preliminary 
Determination, the claimant could inform the Whistleblower Office of 
the decision not to contest within the 60 calendar days after 
issuance of the Preliminary Determination. This situation might 
occur when the Preliminary Determination recommends an award and the 
claimant has no objection to the recommended amount of the award.
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    Under new proposed Sec.  165.7(g)(2), the claimant could take any 
of the following steps in response to a Preliminary Determination:
     Within thirty (30) calendar days of the date of the 
Preliminary Determination, the claimant may request that the 
Whistleblower Office make available for the claimant's review the 
materials that formed the basis of the Claim Review Staff's Preliminary 
Determination.
     Within sixty (60) calendar days of the date of the 
Preliminary Determination, or if a request to review materials is made, 
then within sixty (60) days of the Whistleblower Office making those 
materials available for the claimant's review, a claimant may submit a 
written response setting forth the grounds for the claimant's objection 
to either the denial of an award or the proposed amount of an award. 
The claimant may also include documentation or other evidentiary 
support for the grounds advanced in any response, and request a meeting 
with the Whistleblower Office. However, such meetings would not be 
required. The Whistleblower Office may in its sole discretion decline 
the request.
    New proposed Sec.  165.7(h) makes clear that if a claimant fails to 
submit a timely response under new Sec.  165.7(g), then a Preliminary 
Determination denying an award becomes the Final Order of the 
Commission and constitutes a failure to exhaust the claimant's 
administrative remedies.\9\ Failure to exhaust administrative remedies 
would prohibit the claimant from pursuing judicial review.
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    \9\ Pursuant to Sec.  165.7(l), the Office of the Secretariat 
will serve on the claimant a copy of the Final Order.
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    If the claimant fails to contest a Preliminary Determination 
recommending an award, the Preliminary Determination would be treated 
as a Proposed Final Determination, which would make it subject to 
Commission review under proposed Sec.  165.7(j).
    New Sec.  165.7(i) describes the procedure in cases where a 
claimant submits a timely response under new

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Sec.  165.7(g). In such cases, the Claims Review Staff would consider 
the issues raised in the claimant's response, along with any supporting 
documentation that the claimant provides, and prepare a Proposed Final 
Determination.
    Under new Sec.  165.7(j), when there is a Proposed Final 
Determination, the Whistleblower Office will notify the Commission of 
the Proposed Final Determination. Within thirty (30) days of that 
notification, any Commissioner may request Commission review of the 
Proposed Final Determination. If no Commissioner makes such a request, 
the Proposed Final Determination will become the Commission's Final 
Order. If a Commissioner does request review, the Commission will 
review the record that the Claims Review Staff relied upon in reaching 
its determination. On the basis of its review of that record, the 
Commission will issue its Final Order, which the Office of the 
Secretariat will then serve on the claimant. In reaching their 
decisions, the Commission and Claims Review Staff will only consider 
information in the record.
    The Office of General Counsel will review both preliminary and 
proposed final determinations prior to issuance, and no such 
determination may be issued without the Office of General Counsel's 
determination of legal sufficiency.
    Under proposed Sec.  165.15(a)(2), the Enforcement Director, in 
consultation with the Executive Director, will designate a minimum of 
three and a maximum of five staff from the Division of Enforcement or 
other Commission Offices or Divisions to serve on the Claims Review 
Staff, either on a case-by-case basis or for fixed periods. At least 
one person from outside the Division of Enforcement will be included on 
the Claims Review Staff at all times. The Claims Review Staff would be 
composed only of persons who have not had direct involvement with the 
underlying enforcement action. Due to the Office of General Counsel's 
role in the review process, the Commission believes it is appropriate 
to exclude staff from that Office from serving as Claims Review Staff.
    These proposed amendments would provide the public and claimants 
with greater transparency in the award evaluation and review process. 
They should also enhance the expeditious and fair administration of the 
program.

Awards for Related Actions

    For award claims on related actions, the Commission is proposing to 
amend Sec.  165.11 to permit claimants who are eligible to receive an 
award in a covered judicial or administrative action also to receive an 
award based on the monetary sanctions that are collected from a final 
judgment in a related action. The exception would be that the 
Commission would not make an award to a claimant for a related action 
if the claimant had been granted an award by the SEC for the same 
action under the SEC's whistleblower program. This would prevent a 
claimant from ``double dipping'' and receiving more than one award for 
the same action. Similarly, if the SEC has previously denied an award 
to a claimant in a related action, the claimant will be precluded from 
relitigating any issues before the Commission that the SEC resolved 
against the claimant as part of the SEC's award denial. These 
limitations on obtaining an award for both Covered Actions and final 
judgments in related actions are similar to those imposed by the SEC in 
its whistleblower program.
    Pursuant to the definition of related action in Sec.  165.2(m), a 
related action is based on the original information voluntarily 
submitted by a whistleblower to the Commission that led to the 
successful enforcement of a Commission action, and therefore, an action 
may only become a ``related action'' after there is a successful 
Commission action. Additional revisions are proposed to Sec.  165.7(b) 
to clarify timing requirements for filing whistleblower award claims 
regarding related actions. The proposed revisions also clarify that 
except in the circumstances described in proposed Sec.  
165.7(b)(3)(ii), award claims for a related action shall be filed 
within 90 days after an action meets the definition of related action 
if the order in the related action was issued prior to the successful 
enforcement of a Commission action. The proposed revisions also clarify 
that award claims for a related action and in response to a Notice of 
Covered Action may be submitted on the same Form WB-APP in certain 
circumstances.

Contents of Record for Award Determinations

    Consistent with the Commission proposing to amend Sec.  165.11 to 
permit claimants who are eligible to receive an award in a covered 
judicial or administrative action also to receive an award based on the 
monetary sanctions that are collected from a final judgment in a 
related action, the Commission proposes to amend Sec.  165.10(a) to 
include additional items that may be included in the contents of record 
for award claims. For related actions, any documents or materials, 
including sworn declarations from third parties, that are received or 
obtained by the Whistleblower Office to assist the Commission in 
resolving the claimant's award application, including information 
relating to the claimant's eligibility, may be included in the record. 
In addition, any information provided to the Commission by the entity 
bringing the related action that has been authorized by the entity for 
sharing with the claimant may be part of the record. Neither of these 
forms of information may be included in the contents of the record if 
the entity did not authorize the Commission to share the information 
with the claimant. The Commission also proposes revisions to Sec. Sec.  
165.10(b) and 165.13(b) to clarify that the record on appeal shall not 
include any pre-decisional or internal deliberative process materials 
that are prepared to assist the Commission or Claims Review Staff in 
deciding a claim.

Authority To Administer the Program

    Currently, Sec.  165.15 provides for delegations of authority to 
the staff. Given the proposed changes to the claims review process, the 
Commission proposes to directly assign responsibilities for 
administering the program by rule rather than by delegation. Since 
2013, the Whistleblower Office (``WBO'') has been located within the 
Division of Enforcement. The Commission believes that it is appropriate 
to assign overall responsibility for administering the whistleblower 
program to the Director of the Division of Enforcement. The Commission 
notes that this approach is also consistent with the SEC's practice.
    The Commission also proposes to directly assign responsibility to 
Claims Review Staff for the issuance of Preliminary Determinations and 
Proposed Final Determinations, and issuance of Proposed Final 
Dispositions to the WBO. In this connection, the Commission proposes, 
again consistent with the SEC's practice, that no member of the Claims 
Review Staff can have had any direct involvement in the underlying 
enforcement case.

Whistleblower Identifying Information

    To implement the confidentiality protection for whistleblower 
identifying information under CEA section 23(h)(2), the Commission 
issued Sec.  165.4. The Commission is proposing to authorize the 
Director of the Division of Enforcement to act on its behalf to 
disclose whistleblower identifying information as permitted by CEA 
section 23(h)(2)(C) and Sec.  165.4(a)(2) and (3). Under Sec.  
165.15(a)(3), the Commission expects the Director of Enforcement to 
exercise this discretion to release such sensitive information in

[[Page 59555]]

a manner consistent with, and when deemed necessary or appropriate to 
accomplish, the customer protection and law enforcement goals of the 
whistleblower program.\10\ The Commission believes that this delegation 
of authority will increase investor protection by facilitating 
administration of the whistleblower program as well as investigations 
and actions by those agencies and authorities that are eligible to 
receive whistleblower identifying information under CEA section 
23(h)(2)(C) and Sec.  165.4. Any agency or authority that receives 
whistleblower identifying information is bound by the same 
confidentiality requirements as those applicable to the Commission 
under CEA section 23(h)(2)(A) and such release of information does not 
change the confidential nature of the information. Certain information 
provided to other agencies or authorities is also protected from 
disclosure under CEA section 8.
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    \10\ Whistleblower Incentives and Protection, 76 FR at 53184 
(Aug. 25, 2011) (declining to require whistleblower notification).
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Retaliation Against Whistleblowers

    During its 2011 rulemaking, the Commission was asked to clarify its 
enforcement authority over retaliation against whistleblowers. Citing 
the private right of action for whistleblowers created by CEA section 
23(h)(1)(B), the Commission stated that it lacked ``the statutory 
authority to conclude that any entity that retaliates against a 
whistleblower'' could be subject to enforcement action ``as a separate 
and independent violation of the CEA.'' Whistleblower Incentives and 
Protection, 76 FR at 53182 (August 25, 2011). The Commission stated 
that CEA section 23(h)(1)(B)(i) ``clearly states only an individual who 
alleges retaliation in violation of being a whistleblower may bring 
such a cause of action.'' Id.
    Questions have been raised, however, about the inconsistency 
between this interpretation and the SEC's interpretation of its own 
authority to take enforcement actions against violators of the anti-
retaliation provisions of the SEC's whistleblower protection rules. 
Accordingly, the Commission is revisiting this issue. The Commission 
proposes to set aside its 2011 interpretation because it fails to 
adequately take into full consideration the statutory context of CEA 
section 23 and other CEA provisions. The 2011 interpretation cannot be 
squared with CEA section 23(h)(1)(A), which establishes that 
retaliation is in fact a separate violation of the CEA, nor with the 
Commission's broad rulemaking authority under CEA section 23(i). The 
2011 interpretation also overlooks the Commission's general authority 
to prosecute violations of any CEA provisions as well as violations of 
the Commission's rules and orders under CEA sections 6(c), 6(d), 6b, 
and 6c. Each of these CEA sections empowers the Commission to take 
action for the violation of ``any'' CEA provision or rule or regulation 
thereunder. The Commission notes that while CEA section 23(h)(1) 
provides for enforcement of the anti-retaliation provisions through a 
private cause of action, nothing in that section purports to limit the 
Commission's general enforcement authority or suggests that such 
private action is exclusive. The SEC's statutory authority in this area 
is nearly identical to the Commission's, and that agency took a 
different path in 2011. When commenters asked the SEC to clarify 
protections against retaliation, it did so by adopting a rule that made 
any rules promulgated under the protections against retaliation 
provisions enforceable in an action or proceeding brought by the 
SEC.\11\ Upon reconsideration of its statutory authority on this 
important issue, and noting that harmonization between the SEC's and 
the Commission's Whistleblower programs would be beneficial to the 
public by making the consequences of illegal retaliation more uniform, 
the Commission has decided to join the SEC on that path.
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    \11\ See SEC Rule 21F-2(b) (17 CFR 240.21F-2(b)).
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    By today's action, the Commission is taking a necessary step to end 
the incongruous situation where whistleblowers enjoy protection from 
retaliation through SEC enforcement action under the securities laws, 
but no such protection through Commission enforcement action under the 
CEA. In 1982, Congress granted customers a private right of action 
under CEA section 22 without diminishing or undermining the 
Commission's enforcement authority under the CEA. So too here, the 
Commission believes that Congress intended the Commission to fully 
exercise its enforcement authority with respect to CEA section 
23(h)(1)(A) and to fully exercise its rulemaking authority under CEA 
section 23(i) in addition to creating a private right of action to 
protect whistleblowers.
    The Commission's proposal also removes any question about a gap in 
statutory whistleblower protection under the securities laws and the 
CEA. Consistent with the SEC's approach in its rule, the Commission 
proposes to add new Sec.  165.20(b) to implement its enforcement 
authority under CEA section 23 and 17 CFR part 165. To complement the 
prohibition found in CEA section 23(h)(1)(A), and as consistent with 
the SEC's whistleblower rules, the Commission proposes to add a new 
Sec.  165.19(b) to prohibit the enforcement of confidentiality and pre-
dispute arbitration clauses respecting actions by potential 
whistleblowers in any pre-employment, employment or post-employment 
agreements,\12\ and a new Sec.  165.20(a) and (c) to prohibit employers 
from threatening or harassing or retaliating against individuals who 
participate in the Commission's whistleblower program, irrespective of 
whether those individuals qualify for an award,\13\ or report 
internally before providing the Commission with information.\14\ The 
Commission believes that these proposed rules are appropriate to 
implement CEA section 23(h)(1) and are fully consistent with the 
purposes of that provision as required by CEA section 23(i).
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    \12\ The Commission is aware of the SEC's enforcement action 
against the use of confidentiality agreements that might interrupt 
the free flow of communications from whistleblowers to enforcement 
authorities. See In the Matter of KBR Inc., SEC Admin. Proc. No. 3-
16446 (April 1, 2015) (barring KBR from requiring its employees to 
have internal clearance before communicating with the SEC on 
whistleblower matters).
    \13\ The concept of a whistleblower being protected from 
retaliation by an employer irrespective of whether the whistleblower 
qualified for an award is expressed in the definition of 
whistleblower in Sec.  165.2(p)(2). The Commission is providing 
whistleblowers additional protections in new Sec.  165.20(a) and 
(b), and adding Sec.  165.20(c) for convenience and clarity.
    \14\ The Commission is aware of the SEC's recent Interpretation 
of the SEC's Whistleblower Rules Under Section 21F of the Securities 
Exchange Act of 1934, Release No. 34-75592 (August 4, 2015), in 
which the SEC similarly clarified that anti-retaliation protections 
extended to individuals who reported internally prior to providing 
the SEC with information and to individuals who ultimately were not 
eligible for an award.
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Conforming and Technical Amendments

    To conform to the proposed changes to Sec. Sec.  165.7 and 165.15, 
the Commission proposes to strike the reference to ``or its delegate'' 
in Sec.  165.11 in the undesignated material before paragraph (a).
    The Commission proposes to amend Sec.  165.2(i)(2) concerning the 
definition of information that led to a successful enforcement action 
because it contains an erroneous cross-reference. The reference is 
intended to be to Sec.  165.2(l) regarding the definition of original 
source. The rule currently refers to paragraph (i) of the section.
    The Commission proposes to make a minor change to the wording of 
Sec.  165.3 concerning the procedures for

[[Page 59556]]

submitting original information because it contains an erroneous 
reference to a two-step process. This change makes the language conform 
to the process previously adopted.\15\
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    \15\ Whistleblower Incentives and Protection, 76 FR at 53183 
(Aug. 25, 2011) (explaining that the rule was adopted with a more 
streamlined process and one less form than the original proposal).
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    The Commission proposes to amend Sec.  165.13(b) concerning appeals 
because it contains an erroneous cross-reference. The reference 
intended is to Sec.  165.10 regarding contents of the record, rather 
than Sec.  165.9 regarding criteria for determining award amounts.
    The Commission proposes to move and include updated Form TCR and 
Form WB-APP to a new appendix B to part 165. The updated Form TCR and 
Form WB-APP include revisions that previously received information 
collection requirement approval by the Office of Management and 
Budget.\16\ The Commission also proposes to revise a question in the 
Form TCR, question E.8, seeking consent from whistleblowers to share 
their information with other authorities. The revisions include 
language that is consistent with the confidentiality provisions of 
Sec.  165.4. The Commission also proposes revisions to the submission 
instructions portions of the forms to conform to the proposed revisions 
in the part 165 rules.
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    \16\ The Form TCR and Form WB-APP OMB Control Number is 3038-
0082. Both forms last received OMB approval on April 8, 2015, with 
an expiration date of April 30, 2018.
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    Finally, the Commission proposes to make a minor change in the 
wording of current Sec.  165.7(e), in addition to designating current 
paragraph (e) as new paragraph (l).

III. Request for Comment

    The Commission requests comment on all aspects of the proposed rule 
amendments.

IV. Related Matters

A. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612, 
requires that agencies consider whether the rules they propose will 
have a significant economic impact on a substantial number of small 
entities and, if so, provide a regulatory flexibility analysis 
respecting the impact. RFA section 603(a), 5 U.S.C. 603(a), requires 
the Commission to undertake an initial regulatory flexibility analysis 
of a proposed rule on small entities unless the Chairman certifies that 
the rule, if adopted, would not have a significant economic impact on a 
substantial number of small entities. 5 U.S.C. 605(b).
    Only individuals are eligible for participation in the Commission's 
whistleblower program. The proposed amendments would apply only to an 
individual, or individuals acting jointly, who provide information 
relating to the violation of the CEA or Commission regulations. By 
definition, companies and other entities cannot be whistleblowers. 
Consequently, the persons that would be subject to the proposed rule 
amendments are not ``small entities'' under the RFA.
    Accordingly, the Chairman, on behalf of the Commission, hereby 
certifies under 5 U.S.C. 605(b) that the proposed rules would not have 
a significant economic impact on a substantial number of small 
entities.

B. Paperwork Reduction Act

    The Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501-3521, imposes 
certain requirements on federal agencies (including the Commission) in 
connection with their conducting or sponsoring any collection of 
information as defined by the PRA. The Commission believes that the 
proposed amendments, if adopted, would not impose new recordkeeping or 
information collection requirements that require approval by the Office 
of Management and Budget under the PRA.
    Accordingly, the requirements of the PRA do not apply to this 
rulemaking.

C. Cost-Benefit Considerations

    CEA section 15(a) requires the Commission to consider the costs and 
benefits of its actions before promulgating a regulation under the CEA 
or issuing certain orders.\17\ Section 15(a) further specifies that the 
costs and benefits shall be evaluated in light of the following five 
factors: (1) Protection of market participants and the public; (2) 
efficiency, competitiveness, and financial integrity of futures 
markets; (3) price discovery; (4) sound risk management practices; and 
(5) other public interest considerations. The Commission considers the 
costs and benefits resulting from its discretionary determinations with 
respect to the section 15(a) factors. The Commission may in its 
discretion give greater weight to any one of the five enumerated areas 
and could in its discretion determine that, notwithstanding its costs, 
a particular rule is necessary or appropriate to protect the public 
interest or to effectuate any of the provisions or accomplish any of 
the purposes of the CEA.
---------------------------------------------------------------------------

    \17\ 7 U.S.C. 19(a).
---------------------------------------------------------------------------

    Since the basic framework of part 165 remains substantially 
unchanged, the Commission believes that the costs and benefits of the 
proposed rule amendments and the status quo baseline (the current 
rule), to which the proposal's costs and benefits are compared, are 
similar, but with certain additional benefits attendant to these 
amendments.\18\ The Sec.  165.7 amendments would add transparency to 
the Commission's process of deciding whistleblower award claims and 
would harmonize the Commission's rules with those of the SEC. The 
proposed amendments clarify each step of the process that a 
whistleblower must follow when making an award claim. The Commission 
believes that such transparency and harmonization would increase the 
benefits of the part 165 rules relative to the benefits of the current 
rules because potential whistleblowers would have greater clarity about 
the claims and awards process and greater assurance that retaliation 
would not be tolerated. This clarity and protection should encourage 
whistleblowers to step forward. Thus, the proposed rules should enhance 
protection of market participants and the public as well as market 
integrity without materially adding to the costs attendant to the 
current regime.
---------------------------------------------------------------------------

    \18\ The Commission preliminarily believes that there is not 
likely to be any material difference between the proposed amendments 
and the status quo baseline in terms of cost.
---------------------------------------------------------------------------

    The Sec.  165.4 and 165.15 amendments assign to the Director of the 
Division of Enforcement the authority to administer the whistleblower 
program and release whistleblower identifying information. Since these 
proposed amendments relate solely to the Commission's allocation of 
authority among its staff, the Commission anticipates that these 
changes would impose no material costs on market participants or the 
public. At the same time, the Commission believes the protection of 
market participants and the public would be enhanced through a more 
effective and efficient deployment of staff resources.
    The Sec.  165.19 and 165.20 amendments clarify the anti-retaliation 
protections available under the Commission's whistleblower program in 
light of the Commission's reconsideration of its authority under CEA 
section 23(h)(1). These proposed changes remove any gap in enforcement 
authority between the Commission and the SEC with regard to 
whistleblower protections against retaliation. The Commission 
preliminarily believes that these

[[Page 59557]]

changes would impose no material costs on market participants or the 
public. The proposed rules do not impose any new regulatory burden. To 
comply with the rules, market participants must refrain from engaging 
in conduct that is already subject to private rights of action, or 
including certain provisions waiving rights and remedies or requiring 
arbitration of disputes in employment agreements. The Commission 
further believes that the proposed rules might have a positive effect 
on efficiency, competitiveness, and financial integrity of futures 
markets through improving detection and remediation of potential 
violations of the CEA and Commission regulations. For instance, market 
participants may be further deterred from engaging in violations of the 
CEA and Commission rules because the likelihood of being caught has 
increased due to improvements to the whistleblower program that 
encourage more whistleblowers to provide information to the Commission.
    The Commission preliminarily believes that price discovery and 
sound risk management practices would not be materially affected by 
this proposal. Also, the Commission has not identified any other 
relevant public interest considerations.
    The Commission invites public comment on its cost-benefit 
considerations. Commenters are also invited to submit any data or other 
information that they may have quantifying or qualifying the costs and 
benefits of the proposed rules.

D. Antitrust Considerations

    CEA section 15(b) requires the Commission to consider the public 
interests protected by the antitrust laws and to take actions involving 
the least anti-competitive means of achieving the objectives of the 
CEA. The Commission preliminarily believes that the proposed rules may 
have a positive effect on competition through improving detection, 
deterrence, and remediation of potential violations of the CEA and 
Commission regulations.
    The Commission invites comment on any antitrust considerations 
arising from the proposed amendments.

E. Small Business Regulatory Enforcement Fairness Act

    Under the Small Business Regulatory Enforcement Fairness Act of 
1996 (``SBREFA''), Public Law 104-121 (March 29, 1996), as amended by 
Public Law 110-28 (May 25, 2007),\19\ the Commission solicits data to 
determine whether a proposed rule constitutes a ``major'' rule. Under 
SBREFA, a rule is considered ``major'' where, if adopted, it results or 
is likely to result in:
---------------------------------------------------------------------------

    \19\ The provisions governing congressional review of agency 
rulemaking are set forth in SBREFA subtitle E, which is codified at 
5 U.S.C. 801-808.
---------------------------------------------------------------------------

     An annual effect on the economy of $100 million or more 
(either in the form of an increase or a decrease);
     A major increase in costs or prices for consumers or 
individual industries; or
     Significant adverse effects on competition, investment or 
innovation.

If a rule is ``major,'' its effectiveness will generally be delayed for 
60 days pending Congressional review.
    Commenters are invited to provide empirical data on: the potential 
annual effect on the economy; any increase in costs or prices for 
consumers or individual industries; and any potential effect on 
competition, investment or innovation.

List of Subjects in 17 CFR Part 165

    Whistleblowing.

    For the reasons stated in the preamble, the Commodity Futures 
Trading Commission proposes to amend 17 CFR part 165 as follows:

PART 165--WHISTLEBLOWER RULES

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 7 U.S.C. 2, 5, 12a(5) and 26, as amended by Title VII 
of the Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Pub. L. 111-203, 124 Stat. 1376 (July 16, 2010).

0
2. In Sec.  165.2, revise paragraphs (i)(2) and (l)(2) to read as 
follows:


Sec.  165.2  Definitions.

* * * * *
    (i) * * *
    (2) The whistleblower gave the Commission original information 
about conduct that was already under examination or investigation by 
the Commission, the Congress, any other authority of the federal 
government, a state Attorney General or securities regulatory 
authority, any self-regulatory organization or futures association, or 
the Public Company Accounting Oversight Board (except in cases where 
the whistleblower was an original source of this information as defined 
in paragraph (l) of this section), and the whistleblower's submission 
significantly contributed to the success of the action.
* * * * *
    (l) * * *
    (2) Information first provided to another authority or person. If 
the whistleblower provides information to Congress, any other federal 
or state authority, a registered entity, a registered futures 
association, a self-regulatory organization, or to any of any of the 
persons described in paragraphs (g)(4) and (5) of this section, and the 
whistleblower, within 180 days, makes a submission to the Commission 
pursuant to Sec.  165.3, as the whistleblower must do in order for the 
whistleblower to be eligible to be considered for an award, then, for 
purposes of evaluating the whistleblower's claim to an award under 
Sec.  165.7, the Commission will consider that the whistleblower 
provided original information as of the date of the whistleblower's 
original disclosure, report, or submission to one of these other 
authorities or persons. The whistleblower must establish the 
whistleblower's status as the original source of such information, as 
well as the effective date of any prior disclosure, report, or 
submission, to the Commission's satisfaction. The Commission may seek 
assistance and confirmation from the other authority or person in 
making this determination.
* * * * *
0
3. Amend Sec.  165.3 as follows:
0
a. Remove the undesignated introductory paragraph; and
0
b. Revise the introductory text of paragraph (a), and paragraph (a)(1).
    The revisions to read as follows:


Sec.  165.3  Procedures for submitting original information.

    (a) A whistleblower will need to submit the whistleblower's 
information to the Commission. A whistleblower may submit the 
whistleblower's information:
    (1) By completing and submitting a Form TCR online and submitting 
it electronically through the Commission's Web site at www.cftc.gov, or 
the Commission's Whistleblower Program Web site at 
www.whistleblower.gov; or
* * * * *
0
4. In Sec.  165.4, revise the introductory text of paragraph (a), and 
paragraphs (a)(1) and (2) to read as follows:


Sec.  165.4  Confidentiality.

    (a) In general. Section 23(h)(2) of the Commodity Exchange Act 
requires that the Commission not disclose information that could 
reasonably be expected to reveal the identity of a whistleblower, 
except that the Commission may disclose such information in the 
following

[[Page 59558]]

circumstances, in accordance with the Privacy Act of 1974 (5 U.S.C. 
552a):
    (1) When disclosure is required to a defendant or respondent in 
connection with a public proceeding that the Commission institutes or 
in another public proceeding that is filed by an authority to which the 
Commission provides the information, as described below; or
    (2) When the Commission determines that it is necessary to 
accomplish the purposes of the Commodity Exchange Act and to protect 
customers, it may provide whistleblower information, without the loss 
of its status as confidential whistleblower information in the hands of 
the Commission, to: the Department of Justice; an appropriate 
department or agency of the Federal Government, acting within the scope 
of its jurisdiction; a registered entity, registered futures 
association, or a self-regulatory organization; a State attorney 
general in connection with a criminal investigation; any appropriate 
State department or agency, acting within the scope of its 
jurisdiction; or a foreign futures authority; and, as set forth in 
section 23(h)(2)(C) of the Commodity Exchange Act, each such entity is 
required to maintain the information as confidential in accordance with 
the requirements of section 23(h)(2)(A) of the Commodity Exchange Act.
* * * * *
0
5. Revise Sec.  165.5 to read as follows:


Sec.  165.5   Requirements for consideration of an award.

    (a) Subject to the eligibility requirements described in this part, 
the Commission will pay an award to one or more whistleblowers who:
    (1) Provide a voluntary submission to the Commission;
    (2) That contains original information; and
    (3) That leads to the successful resolution of a covered judicial 
or administrative action or successful enforcement of a related action 
or both; and
    (b) In order to be eligible, the whistleblower must:
    (1) Have voluntarily provided the Commission original information 
in the form and manner that the Commission requires in Sec.  165.3;
    (2) Have submitted a claim in response to a Notice of Covered 
Action or a final judgment in a related action or both;
    (3) Provide the Commission, upon its staff's request, certain 
additional information, including:
    (i) Explanations and other assistance, in the manner and form that 
staff may request, in order that the staff may evaluate the use of the 
information submitted related to the whistleblower's application for an 
award;
    (ii) All additional information in the whistleblower's possession 
that is related to the subject matter of the whistleblower's submission 
related to the whistleblower's application for an award; and
    (iii) Testimony or other evidence acceptable to the staff relating 
to the whistleblower's eligibility for an award; and
    (4) If requested by the Whistleblower Office, enter into a 
confidentiality agreement in a form acceptable to the Whistleblower 
Office, including a provision that a violation of the confidentiality 
agreement may lead to the whistleblower's ineligibility to receive an 
award.
    (c) The Commission may, in its sole discretion, waive any 
procedural requirements based upon a showing of extraordinary 
circumstances.
0
6. Amend Sec.  165.7 as follows:
0
a. Revise the section heading;
0
b. Revise paragraphs (b), (d), and (e); and
0
c. Add paragraphs (f) through (l).
    The revisions and additions to read as follows:


Sec.  165.7  Procedures for award applications in Commission actions 
and related actions, and Commission award determinations.

* * * * *
    (b)(1) To file a claim for a whistleblower award, the whistleblower 
must file Form WB-APP, Application for Award for Original Information 
Provided Pursuant to section 23 of the Commodity Exchange Act. The 
whistleblower must sign this form as the claimant and submit it to the 
Commission by mail or fax to Commodity Futures Trading Commission, 
Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, Fax 
(202) 418-5975, or by completing and submitting the Form WB-APP online 
and submitting it electronically through the Commission's Web site at 
http://www.cftc.gov or the Commission's Whistleblower Program Web site 
at www.whistleblower.gov.
    (2) The Form WB-APP, including any attachments, must be received by 
the Commission within 90 calendar days of the date of the Notice of 
Covered Action or 90 calendar days following the date of a final 
judgment in a related action (or if the final judgment in a related 
action was issued prior to the action meeting the definition of related 
action, within 90 calendar days following the date the action satisfied 
the definition of related action, except in the circumstances described 
in paragraph (b)(3)(ii) of this section). One Form WB-APP may be filed 
in response to both a Notice of Covered Action and final judgment in a 
related action if the relevant time periods are applicable.
    (3) If a covered judicial or administrative action and related 
actions have different final judgment dates or if there is no covered 
judicial or administrative action connected to a related action, a 
claimant, who wishes to file a claim for an award in both a covered 
judicial or administrative action and a related action, or in a related 
action that does not have a connected covered judicial or 
administrative action, must follow one of the following procedures 
depending on that claimant's particular situation.
    (i) If a final judgment imposing monetary sanctions in a related 
action has not been entered at the time the claimant submits a claim 
for an award in connection with a covered judicial or administrative 
action, the claimant must submit the claim for the related action on 
Form WB-APP within ninety (90) calendar days following the date of 
issuance of a final judgment in the related action.
    (ii) If a final judgment in a related action has been entered and a 
Notice of Covered Action for a related covered judicial or 
administrative action has not been published, a claimant for an award 
in both the covered judicial or administrative action and related 
action may submit the claims for both the related action and the 
covered judicial or administrative action within ninety (90) days of 
the date of the Notice of Covered Action. The claims may be submitted 
on the same Form WB-APP.
    (iii) If there is a final judgment in a related action that relates 
to a judicial or administrative action brought by the Commission under 
the Commodity Exchange Act that is not a covered judicial or 
administrative action, and therefore there is no Notice of Covered 
Action, a claimant for an award in connection with the related action 
must submit the claim in connection with the related action on Form WB-
APP within ninety (90) calendar days following either:
    (A) The date of issuance of a final judgment in the related action, 
if that date is after the date of issuance of the final judgment in the 
related Commission judicial or administrative action; or
    (B) The date of issuance of the final judgment in the related 
Commission judicial or administrative action, i.e., the date the 
related action becomes a related action, if the date of issuance of the 
final judgment in the related action precedes the final judgment in the

[[Page 59559]]

related Commission judicial or administrative action.
* * * * *
    (d) A claimant may withdraw a Form WB-APP by submitting a written 
request to the Whistleblower Office at any time during the review 
process.
    (e)(1) The Whistleblower Office may issue a Proposed Final 
Disposition for award applications that do not relate to a Notice of 
Covered Action, a final judgment in a related action, or a previously 
filed Form TCR without presentation of the award claim to the staff 
designated by the Director of the Division of Enforcement under Sec.  
165.15(a)(2) (``Claims Review Staff''). In such instances, the 
Whistleblower Office will inform the award claimant in writing that the 
claim does not relate to a Notice of Covered Action, a final judgment 
in a related action, or a previously filed Form TCR and will be 
rejected unless the claimant provides additional information. The 
claimant will have thirty (30) days from the date of the written notice 
to respond and to correct the identified deficiencies. If the claimant 
does not respond in thirty (30) days or if the response does not 
include information showing that the WB-APP relates to a Notice of 
Covered Action, a final judgment in a related action, or a previously 
filed Form TCR the Whistleblower Office will issue a Proposed Final 
Disposition. The claimant's failure to submit a timely response to the 
written notice from the Whistleblower Office will constitute a failure 
to exhaust administrative remedies, and the claimant will be prohibited 
from pursuing an appeal under Sec.  165.13.
    (2) The Whistleblower Office will notify the Claims Review Staff of 
any Proposed Final Disposition under this subsection. Within thirty 
(30) calendar days thereafter, any member of the Claims Review Staff 
may request that the Proposed Final Disposition be reviewed by the 
Claims Review Staff. If no member of the Claims Review Staff requests 
such a review within the 30-day period, then the Proposed Final 
Disposition will become the Final Order of the Commission. In the event 
that a member of the Claims Review Staff requests a review, the Claims 
Review Staff will review the record that the Whistleblower Office 
relied upon in making its determination and either remand to the 
Whistleblower Office for further action or issue a Final Order of the 
Commission, which could consist of the Proposed Final Disposition.
    (f)(1) In connection with each individual covered judicial or 
administrative action or final judgment in a related action, for which 
an award application is submitted, once the time for filing any appeals 
of the covered judicial or administrative action or the final judgment 
in the related action has expired (or, where an appeal is filed of the 
covered judicial or administrative action, or the final judgment in a 
related action, as applicable, and concluded), the Claims Review Staff 
designated under Sec.  165.15(a)(2) will evaluate all timely 
whistleblower award claims submitted on Form WB-APP in response to a 
Notice of Covered Action, referenced in Sec.  165.7(a), or final 
judgment in a related action in accordance with the criteria set forth 
in this part.
    (2) The Whistleblower Office may require that the claimant provide 
additional information relating to the claimant's eligibility for an 
award or satisfaction of any of the conditions for an award, as set 
forth in Sec.  165.5(b)(2). The Whistleblower Office may also request 
additional information from the claimant in connection with the claim 
for an award in a related action to demonstrate that the claimant 
directly (or through the Commission) voluntarily provided the 
governmental agency, regulatory authority or self-regulatory 
organization the original information that led to the Commission's 
successful covered action, and that the information provided by the 
claimant led to the successful enforcement of the related action. The 
Whistleblower Office may also, in its discretion, seek assistance and 
confirmation from the other agency in making this determination.
    (g)(1) Following Claims Review Staff evaluation, the Claims Review 
Staff will issue a preliminary determination setting forth a 
preliminary assessment as to whether the claim should be granted or 
denied and, if granted, setting forth the proposed award percentage 
amount. The Whistleblower Office will send a copy of the preliminary 
determination to the claimant.
    (2) The claimant may contest the preliminary determination made by 
the Claims Review Staff by submitting a written response to the 
Whistleblower Office setting forth the grounds for the claimant's 
objection to either the denial of an award or the proposed amount of an 
award. The response must be in the form and manner that the 
Whistleblower Office shall require. The claimant may also include 
documentation or other evidentiary support for the grounds advanced in 
the claimant's response. The claimant may also request a meeting with 
the Whistleblower Office within the timeframes provided in paragraph 
(g) of this section, however such meetings are not required, and the 
Whistleblower Office may in its sole discretion deny the request.
    (i) Before determining whether to contest a preliminary 
determination, the claimant may, within thirty (30) days of the date of 
the preliminary determination, request that the Whistleblower Office 
make available for the claimant's review the materials from among those 
set forth in Sec.  165.10 that formed the basis of the Claims Review 
Staff's preliminary determination.
    (ii) If the claimant decides to contest the preliminary 
determination, the claimant must submit the claimant's written response 
and supporting materials setting forth the grounds for the claimant's 
objection to either the denial of an award or the proposed amount of an 
award within sixty (60) calendar days of the date of the preliminary 
determination, or if a request to review materials used to make a 
Preliminary Determination is made pursuant to paragraph (g)(2)(i) of 
this section, then within sixty (60) calendar days of the Whistleblower 
Office making those materials available for the claimant's review. The 
claimant also may request a meeting with the Whistleblower Office 
within those same sixty (60) calendar days. However, such meetings are 
not required and the Whistleblower Office may in its sole discretion 
decline the request.
    (h) If the claimant fails to submit a timely response pursuant to 
paragraph (g) of this section, then the preliminary determination will 
become the Final Order of the Commission (except where the preliminary 
determination recommended an award, in which case the preliminary 
determination will be deemed a proposed final determination for 
purposes of paragraph (j) of this section). The claimant's failure to 
submit a timely response contesting a preliminary determination will 
constitute a failure to exhaust administrative remedies, and the 
claimant will be prohibited from pursuing an appeal under Sec.  165.13.
    (i) If the claimant submits a timely response under paragraph (g) 
of this section, then the Claims Review Staff will consider the issues 
and grounds advanced in the claimant's response, along with any 
supporting documentation the claimant provided, and will make its 
proposed final determination.
    (j) The Whistleblower Office will notify the Commission of each 
proposed final determination. Within thirty (30) calendar days 
thereafter, any Commissioner may request that the proposed final 
determination be reviewed by the Commission. If no

[[Page 59560]]

Commissioner requests such a review within the 30-day period, then the 
proposed final determination will become the Final Order of the 
Commission. In the event a Commissioner requests a review, the 
Commission will review the record that the staff relied upon in making 
its determinations, including the claimant's submissions to the 
Whistleblower Office, and issue its Final Order.
    (k) A preliminary determination, proposed final disposition, or a 
proposed final determination may be issued only after a review for 
legal sufficiency by the Office of the General Counsel.
    (l) The Office of the Secretariat will serve the claimant with the 
Final Order of the Commission.
0
7. In Sec.  165.9, revise the introductory paragraph to read as 
follows:


Sec.  165.9  Criteria for determining amount of award.

    The determination of the amount of an award shall be in the 
discretion of the Commission. This discretion shall be exercised as 
prescribed by Sec.  165.7.
* * * * *
0
8. Amend Sec.  165.10 as follows:
0
a. Add paragraphs (a)(8) and (9); and
0
b. Revise paragraph (b).
    The additions and revision to read as follows:


Sec.  165.10  Contents of record for award determinations.

    (a) * * *
    (8) With respect to an award claim involving a related action, any 
statements or other information that an entity provides or identifies 
in connection with an award determination, provided the entity has 
authorized the Commission to share the information with the claimant. 
(Neither the Commission nor the Claims Review Staff may rely upon 
information that the entity has not authorized the Commission to share 
with the applicant); and
    (9) Any other documents or materials including sworn declarations 
from third-parties that are received or obtained by the Whistleblower 
Office to assist the Commission resolve the applicant's award 
application, including information related to the claimant's 
eligibility. (Neither the Commission nor the Claims Review Staff may 
rely upon information that a third party has not authorized the 
Commission to share with the claimant).
    (b) A claimant is not entitled, under the provisions of this part, 
to obtain from the Commission any materials (including any pre-
decisional or internal deliberative process materials that are prepared 
to assist the Commission or Claims Review Staff in deciding the claim) 
other than those listed in paragraph (a) of this section. The 
Whistleblower Office may make redactions as necessary to comply with 
any statutory restrictions, to protect the Commission's law enforcement 
and regulatory functions, and to comply with requests for confidential 
treatment from other law enforcement and regulatory authorities.
0
9. Revise Sec.  165.11 to read as follows:


Sec.  165.11  Awards based upon related actions.

    (a) Provided that a whistleblower or whistleblowers comply with the 
requirements in Sec. Sec.  165.3, 165.5 and 165.7, and pursuant to 
Sec.  165.8, the Commission may grant an award based on the amount of 
monetary sanctions collected in a ``related action'' or ``related 
actions,'' where:
    (1) A ``related action'' is a judicial or administrative action 
that is brought by:
    (i) The Department of Justice;
    (ii) An appropriate department or agency of the Federal Government, 
acting within the scope of its jurisdiction;
    (iii) A registered entity, registered futures association, or self-
regulatory organization;
    (iv) A State criminal or appropriate civil agency, acting within 
the scope of its jurisdiction; or
    (v) A foreign futures authority; and
    (2) The ``related action'' is based on the original information 
that the whistleblower voluntarily submitted to the Commission and led 
to a successful resolution of the Commission judicial or administrative 
action.
    (b) The Commission will not make an award to a claimant for a final 
judgment in a related action if the claimant has already been granted 
an award by the Securities and Exchange Commission (SEC) for that same 
action pursuant to its whistleblower award program under section 21F of 
the Securities Exchange Act (15 U.S.C. 78a et seq.). If the SEC has 
previously denied an award to the claimant for a judgment in a related 
action, the whistleblower will be precluded from relitigating any 
issues before the Commission that the SEC resolved against the claimant 
as part of the award denial.
0
10. Revise Sec.  165.13 to read as follows:


Sec.  165.13  Appeals.

    (a) Any Final Order of the Commission relating to a whistleblower 
award determination, including whether, to whom, or in what amount to 
make whistleblower awards, may be appealed to the appropriate court of 
appeals of the United States not more than thirty (30) days after the 
Final Order of the Commission is issued, provided that administrative 
remedies have been exhausted.
    (b) The record on appeal shall consist of:
    (1) The Contents of Record for Award Determinations, as set forth 
in Sec.  165.10. The record on appeal shall not include any pre-
decisional or internal deliberative process materials that are prepared 
to assist the Commission or the Claims Review Staff in deciding the 
claim (including staff's draft preliminary determination or any 
proposed final determination or staff's draft final determination); and
    (2) The preliminary determination and the Final Order of the 
Commission, as set forth in Sec.  165.7.
0
11. Revise Sec.  165.15 to read as follows:


Sec.  165.15  Administering the whistleblower program.

    (a) Specific authorities--(1) Payments, deposits, and credits. The 
Executive Director is authorized to deposit into or credit collected 
monetary sanctions to the Fund, and to make payment of awards 
therefrom, with the concurrence of the General Counsel and the Director 
of the Division of Enforcement, or of their respective designees.
    (2) Designation of Claims Review Staff. The Claims Review Staff 
referenced in Sec.  165.7 shall be composed of no fewer than three and 
no more than five staff members from any of the Commission's Offices or 
Divisions (except the Office of General Counsel) who have not had 
direct involvement in the underlying enforcement action, as designated 
by the Director of the Division of Enforcement in consultation with the 
Executive Director. The Claims Review Staff will always include at 
least one staff member who does not work in the Division of 
Enforcement.
    (3) Disclosure of whistleblower identifying information. The 
Director of the Division of Enforcement is authorized on behalf of the 
Commission to exercise its discretion to disclose whistleblower 
identifying information under Sec.  165.4(a).
    (b) General authority to administer the program. The Director of 
the Division of Enforcement shall have general authority to administer 
the whistleblower program except as otherwise provided under this part.
0
12. Revise Sec.  165.19 to read as follows:


Sec.  165.19  Nonenforceability of certain provisions waiving rights 
and remedies or requiring arbitration of disputes.

    (a) Non-waiver. The rights and remedies provided for in part 165 of 
the

[[Page 59561]]

Commission's regulations may not be waived by any agreement, policy, 
form, or condition of employment, including by a predispute arbitration 
agreement. No predispute arbitration agreement shall be valid or 
enforceable if the agreement requires arbitration of a dispute arising 
under this part.
    (b) Protected communications. No person may take any action to 
impede an individual from communicating directly with the Commission's 
staff about a possible violation of the Commodity Exchange Act, 
including by enforcing, or threatening to enforce, a confidentiality 
agreement or predispute arbitration agreement with respect to such 
communications.
0
13. Add Sec.  165.20 to read as follows:


Sec.  165.20  Whistleblower anti-retaliation protections.

    (a) In general. No employer may discharge, demote, suspend, 
directly or indirectly threaten or harass, or in any other manner 
discriminate against, a whistleblower in the terms and conditions of 
employment because of any lawful act done by the whistleblower--
    (1) In providing information to the Commission in accordance with 
this part; or
    (2) In assisting in any investigation or judicial or administrative 
action of the Commission based upon or related to such information.
    (b) Anti-retaliation enforcement. Section 23(h)(1)(A) of the 
Commodity Exchange Act (7 U.S.C. 26(h)(1)), including the rules in this 
part promulgated thereunder, shall be enforceable in an action or 
proceeding brought by the Commission.
    (c) Protections apply regardless of non-qualification. The anti-
retaliation protections apply whether or not the whistleblower 
satisfies the requirements, procedures, and conditions to qualify for 
an award.
0
14. Revise appendix A to part 165 to read as follows:

Appendix A to Part 165--Guidance With Respect to the Protection of 
Whistleblowers Against Retaliation

    (a) In general. Section 23(h)(1) of Commodity Exchange Act 
prohibits employers from engaging in retaliation against 
whistleblowers. This provision provides whistleblowers with certain 
protections against retaliation, including: a federal cause of 
action brought by the whistleblower against the employer, which must 
be filed in the appropriate district court of the United States 
within two (2) years of the employer's retaliatory act, and 
potential relief for prevailing whistleblowers, including 
reinstatement, back pay, and compensation for other expenses, 
including reasonable attorney's fees.
    (b) Enforcement--(1) Cause of action. An individual who alleges 
discharge, demotion, suspension, direct or indirect threats or 
harassment, or any other manner of discrimination in violation of 
section 23(h)(1)(A) of the Commodity Exchange Act may bring an 
action under section 23(h)(1)(B) of the Commodity Exchange Act in 
the appropriate district court of the United States for the relief 
provided in section 23(h)(1)(C) of the Commodity Exchange Act, 
unless the individual who is alleging discharge or other 
discrimination in violation of section 23(h)(1)(A) of the Commodity 
Exchange Act is an employee of the Federal Government, in which case 
the individual shall only bring an action under section 1221 of 
title 5, United States Code.
    (2) Subpoenas. A subpoena requiring the attendance of a witness 
at a trial or hearing conducted under section 23(h)(1)(B)(ii) of the 
Commodity Exchange Act may be served at any place in the United 
States.
    (3) Statute of limitations. A private cause of action under 
section 23(h)(1)(B) of the Commodity Exchange Act may not be brought 
more than two (2) years after the date on which the violation 
reported in section 23(h)(1)(A) of the Commodity Exchange Act is 
committed.
    (4) Commission authority to bring action. The Commission may 
bring an enforcement action against an employer that retaliates 
against a whistleblower by discharge, demotion, suspension, direct 
or indirect threats or harassment, or any other manner of 
discrimination.
    (c) Relief. Relief for an individual prevailing in an action 
brought under section 23(h)(1)(B) of the Commodity Exchange Act 
shall include--
    (1) Reinstatement with the same seniority status that the 
individual would have had, but for the discrimination;
    (2) The amount of back pay otherwise owed to the individual, 
with interest; and
    (3) Compensation for any special damages sustained as a result 
of the discharge or discrimination, including litigation costs, 
expert witness fees, and reasonable attorney's fees.
0
15. Add appendix B to part 165 to read as follows:

Appendix B to Part 165--Form TCR and Form WP-APP

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BILLING CODE 6351-01-C

Privacy Act Statement

    This notice is given under the Privacy Act of 1974. The Privacy 
Act requires that the Commodity Futures Trading Commission (CFTC) 
inform individuals of the following when asking for information. The 
solicitation of this information is authorized under the Commodity 
Exchange Act, 7 U.S.C. 1 et seq. This form may be used by anyone 
wishing to provide the CFTC with information concerning a violation 
of the Commodity Exchange Act or the CFTC's regulations. If an 
individual is submitting this information for the CFTC's 
whistleblower award program pursuant to Section 23 of the Commodity 
Exchange Act, the information provided will be used to enable the 
CFTC to determine the individual's eligibility for payment of an 
award. This information will be used to investigate and prosecute 
violations of the Commodity Exchange Act and the CFTC's regulations. 
This information may be disclosed to federal, state, local or 
foreign agencies or other authorities responsible for investigating, 
prosecuting, enforcing or implementing laws, rules or regulations 
implicated by the information consistent with the confidentiality 
requirements set forth in Section 23 of the Commodity Exchange Act 
and Part 165 of the CFTC's regulations. The information will be 
maintained and additional disclosures may be made in accordance with 
System of Records Notices CFTC-49, ``Whistleblower Records'' 
(exempted), CFTC-10, ``Investigatory Records'' (exempted), and CFTC-
16, ``Enforcement Case Files.'' Furnishing the information is 
voluntary. However, if an individual is providing information for 
the whistleblower award program, not providing required information 
may result in the individual not being eligible for award 
consideration.
    Questions concerning this form may be directed to Commodity 
Futures Trading Commission, Whistleblower Office, Three Lafayette 
Centre, 1155 21st Street NW., Washington, DC 20581.

Submission Procedures

     If you are submitting information for the CFTC's 
whistleblower award program, you must submit your information using 
this Form TCR.
     You may submit this form electronically, through the 
web portal found on the CFTC's Web site at http://www.cftc.gov, 
which is also accessible from the CFTC Whistleblower Program Web 
site at www.whistleblower.gov. You may also print this form and 
submit it by mail to Commodity Futures Trading Commission, 
Whistleblower Office, Three Lafayette Centre, 1155 21st Street NW., 
Washington, DC 20581, or by facsimile to (202) 418-5975.
     You have the right to submit information anonymously. 
If you do not submit anonymously, please note that the CFTC is 
required by law to maintain the confidentiality of any information 
which could reasonably identify you, and will only reveal such 
information in limited and specifically-defined circumstances. See 7 
U.S.C. 26(h)(2); 17 CFR 165.4. However, in order to receive a 
whistleblower award, you will need to be identified to select CFTC 
staff for a final eligibility determination, and in unusual 
circumstances, you may need to be identified publicly for trial. You 
should therefore provide some means for the CFTC's staff to contact 
you, such as a telephone number or an email address.

Instructions for Completing Form TCR

General

    All references to ``you'' and ``your'' are intended to mean the 
complainant.

Section A: Tell Us About Yourself

    Questions 1-14: Please provide the following information about 
yourself:
    [ballot] last name, first name and middle initial;
    [ballot] complete address, including city, state and zip code;
    [ballot] telephone number and, if available, an alternate number 
where you can be reached;
    [ballot] your email address (to facilitate communications, we 
strongly encourage you to provide an email address, especially if 
you are filing anonymously);
    [ballot] your preferred method of communication; and
    [ballot] your occupation.

Section B: Your Attorney's Information

    Complete this section only if you are represented by an attorney 
in this matter.

    Questions 1-10: Provide the following information about your 
attorney:
    [ballot] attorney's name;
    [ballot] firm name;
    [ballot] complete address, including city, state and zip code;
    [ballot] telephone number and fax number; and
    [ballot] email address.

Section C: Tell Us Who You Are Complaining About

    Question 1-2: Choose one of the following that best describes 
the individual's profession or the type of entity to which your 
complaint relates:
    For Individuals: accountant, analyst, associated person, 
attorney, auditor, broker, commodity trading advisor, commodity pool 
operator, compliance officer, employee, executing broker, executive 
officer or director, financial planner, floor broker, floor trader, 
trader, unknown or other (specify).
    For Entities: bank, commodity pool, commodity pool operator, 
commodity trading advisor, futures commission merchant, hedge fund, 
introducing broker, major swap participant, retail foreign exchange 
dealer, swap dealer, unknown or other (specify).

    Questions 3-12: For each individual and/or entity, provide the 
following information, if known:
    [ballot] full name;
    [ballot] complete address, including city, state and zip code;
    [ballot] telephone number;
    [ballot] email address; and
    [ballot] internet address, if applicable.
    Questions 13: If the firm or individual you are complaining 
about has custody or control of your investment, identify whether 
you have had difficulty contacting that firm or individual.
    Question 14: Identify if you are, or were, associated with the 
individual or firm you are complaining about. If yes, describe how 
you are, or were, associated with the individual or firm you are 
complaining about.
    Question 15: Identify the initial form of contact between you 
and the person against whom you are filing this complaint.

Section D: Tell Us About Your Complaint

    Question 1: State the date (mm/dd/yyyy) that the alleged conduct 
occurred or began.
    Question 2: Identify if the conduct is on-going.
    Question 3: Choose the option that you believe best describes 
the nature of your complaint. If you are alleging more than one 
violation, please list all that you believe may apply.
    Question 4: Select the type of product or instrument you are 
complaining about.
    Question 5: If applicable, please name the product or 
instrument. If yes, please describe.
    Question 6: Identify whether you have suffered a monetary loss. 
If yes, please describe.
    Question 7: Identify if the individual or firm you are 
complaining about acknowledged their fault.
    Question 8: Indicate whether you have taken any other action 
regarding your complaint, including whether you complained to the 
CFTC, another regulator, a law enforcement agency, or any other 
agency or organization, or initiated legal action, mediation, 
arbitration or any other action.
    If you answered yes, provide details, including the date on 
which you took the action(s) described, the name of the person or 
entity to whom you directed any report or complaint, and contact 
information for the person or entity, if known, and the complete 
case name, case number and forum of any legal action you have taken.
    Question 9: State in detail all facts pertinent to the alleged 
violation. Explain why you believe the facts described constitute a 
violation of the Commodity Exchange Act.
    Question 10: Describe all supporting materials in your 
possession and the availability and location of any additional 
supporting materials not in your possession.

Section E: Whistleblower Program

    Question 1: Describe how you obtained the information that 
supports your allegations. If any information was obtained from an 
attorney or in a communication where an attorney was present, 
identify such information with as much particularity as possible. In 
addition, if any information was obtained from a public source, 
identify the source with as much particularity as possible.
    Question 2: Identify any documents or other information in your 
submission on this Form TCR that you believe could reasonably be 
expected to reveal your identity. Explain the basis for your belief 
that your identity would be revealed if the documents or information 
were disclosed to a third party.
    Question 3: State whether you or your attorney have had any 
prior

[[Page 59574]]

communication(s) with the CFTC concerning this matter.
    If you answered ``yes'', identify the CFTC staff member(s) with 
whom you or your attorney communicated.
    Question 4: Indicate whether you or your attorney have provided 
the information you are providing to the CFTC to any other agency or 
organization, or whether any other agency or organization has 
requested the information or related information from you.
    If you answered ``yes'', provide details and the name and 
contact information of the point of contact at the other agency or 
organization, if known.
    Question 5: Indicate whether your complaint relates to an entity 
of which you are, or were in the past, an officer, director, 
counsel, employee, consultant or contractor.
    If you answered ``yes'', state whether you have reported this 
violation to your supervisor, compliance office, whistleblower 
hotline, ombudsman, or any other available mechanism at the entity 
for reporting violations. Please provide details, including the date 
on which you took the action.
    Question 6: Indicate whether you have taken any other action 
regarding your complaint, including whether you complained to the 
CFTC, another regulator, a law enforcement agency, or any other 
agency or organization, or initiated legal action, mediation, 
arbitration or any other action.
    If you answered ``yes'', provide details, including the date on 
which you took the action(s) described, the name of the person or 
entity to whom you directed any report or complaint, and contact 
information for the person or entity, if known, and the complete 
case name, case number and forum of any legal action you have taken.
    Question 7: Provide any additional information you think may be 
relevant.
    Question 8: Indicate whether you provide your consent to the 
CFTC allowing the CFTC to share your identifying information with 
other governmental authorities.

Section F: Whistleblower Eligibility Requirements and Other Information

    Question 1: State whether you are currently, or were at the time 
that you acquired the original information that you are submitting 
to the CFTC, a member, officer or employee of: the CFTC; the Board 
of Governors of the Federal Reserve System; the Office of the 
Comptroller of the Currency; the Board of Directors of the Federal 
Deposit Insurance Corporation; the Director of the Office of Thrift 
Supervision; the National Credit Union Administration Board; the 
Securities and Exchange Commission; the Department of Justice; a 
registered entity; a registered futures association; a self-
regulatory organization; a law enforcement organization; or a 
foreign regulatory authority or law enforcement organization.
    Question 2: State whether you are providing the information 
pursuant to a cooperation agreement with the CFTC or with another 
agency or organization.
    Question 3: State whether you are providing this information 
before you (or anyone representing you) received any request, 
inquiry or demand that relates to the subject matter of this 
submission (i) from the CFTC, (ii) in connection with an 
investigation, inspection or examination by any registered entity, 
registered futures association or self-regulatory organization, or 
(iii) in connection with an investigation by the Congress, or any 
other federal or state authority.
    Question 4: State whether you are currently a subject or target 
of a criminal investigation, or whether you have been convicted of a 
criminal violation, in connection with the information you are 
submitting to the CFTC.
    Question 5: State whether you acquired the information you are 
providing to the CFTC from any individual described in Questions 1 
through 4 of this section.
    Question 6: If you answered yes to any of Questions 1 through 5, 
please provide details.

Section G: Whistleblower's Declaration

    You must sign this Declaration if you are submitting this 
information pursuant to the CFTC whistleblower program and wish to 
be considered for an award. If you are submitting your information 
using the electronic version of Form TCR through the CFTC's web 
portal, you must check the box to agree with the declaration. If you 
are submitting your information anonymously, you must still sign 
this Declaration (using the term ``anonymous'') or check the box as 
appropriate, and, if you are represented by an attorney, you must 
provide your attorney with the original of this signed form, or 
maintain a copy for your own records. If you are not submitting your 
information pursuant to the CFTC whistleblower program, you do not 
need to sign this Declaration or check the box.

Section H: Counsel Certification

    If you are submitting this information pursuant to the CFTC 
whistleblower program and you are doing so anonymously through an 
attorney, your attorney must sign the Counsel Certification Section. 
If your attorney is submitting your information using the electronic 
version of Form TCR through the CFTC's web portal, he/she must check 
the box to agree with the certification. If you are represented in 
this matter but you are not submitting your information pursuant to 
the CFTC whistleblower program, your attorney does not need to sign 
this Certification or check the box.
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BILLING CODE 6351-01-C

Privacy Act Statement

    This notice is given under the Privacy Act of 1974. The Privacy 
Act requires that the Commodity Futures Trading Commission (CFTC) 
inform individuals of the following when asking for information. The 
solicitation of this information is authorized under the Commodity 
Exchange Act, 7 U.S.C. 1 et seq. The information provided will 
enable the CFTC to determine the whistleblower award claimant's 
eligibility for payment of an award pursuant to Section 23 of the 
Commodity Exchange Act and Part 165 of the CFTC's regulations. This 
information will be used to investigate and prosecute violations of 
the Commodity Exchange Act and the CFTC's regulations. This 
information may be disclosed to federal, state, local or foreign 
agencies or other authorities responsible for investigating, 
prosecuting, enforcing or implementing laws, rules or regulations 
implicated by the information consistent with the confidentiality 
requirements set forth in Section 23 of the Commodity Exchange Act 
and Part 165 of the CFTC's regulations. The information will be 
maintained and additional disclosures may be made in accordance with 
System of Records Notices CFTC-49, ``Whistleblower Records'' 
(exempted), CFTC-10, ``Investigatory Records'' (exempted), and CFTC-
16, ``Enforcement Case Files.'' The CFTC requests the last four 
digits of the claimant's Social Security Number for use as an 
individual identifier to administer and manage the whistleblower 
award program. Executive Order 9397 (November 22, 1943) allows 
federal agencies to use the Social Security Number as an individual 
identifier. Furnishing the information is voluntary. However, if an 
individual is providing information for the whistleblower award 
program, not providing required information may result in the 
individual not being eligible for award consideration.
    Questions concerning this form may be directed to Commodity 
Futures Trading Commission, Whistleblower Office, Three Lafayette 
Centre, 1155 21st Street NW., Washington, DC 20581.

Submission Procedures

     This form must be used by persons making a claim for a 
whistleblower award in connection with information provided to the 
CFTC, or to another agency or organization in a related action. In 
order to be deemed eligible for an award, you must meet all the 
requirements set forth in Section 23 of the Commodity Exchange Act 
and Part 165 of the CFTC's regulations.
     You must sign the Form WB-APP as the claimant. If you 
wish to submit the Form WB-APP anonymously, you must do so through 
an attorney, your attorney must sign the Counsel Certification 
Section of the Form WB-APP that is submitted to the CFTC, and you 
must give your attorney your original signed Form WB-APP so that it 
can be produced to the CFTC upon request.
     During the whistleblower award claim process, your 
identity must be verified in a form and manner that is acceptable to 
the CFTC prior to the payment of any award.
    [cir] If you are filing your claim in connection with 
information that you provided to the CFTC, then your Form WB-APP, 
and any attachments thereto, must be received by the CFTC within 
ninety (90) days of the date of the Notice of Covered Action, or the 
date of a final judgment in a related action to which the claim 
relates.
    [cir] If you are filing your claim in connection with 
information that you provided to another agency or organization in a 
related action, then your Form WB-APP, and any attachments thereto, 
must be received by the CFTC as follows:
     If a final order imposing monetary sanctions has been 
entered in a related action at the time that you submit your claim 
for an award in connection with a CFTC action, you may submit your 
claim for an award in that related action on the same Form WB-APP 
that you use for the CFTC action.
     If a final order imposing monetary sanctions in a 
related action has not been entered at the time that you submit your 
claim for an award in connection with a CFTC action, you must submit 
your claim on Form WB-APP within ninety (90) days of the issuance of 
a final order imposing sanctions in the related action.
     If a final judgment imposing monetary sanctions in a 
related action has been entered and a Notice of Covered Action for a 
related covered judicial or administrative action has not been 
published, you may submit your claims for awards in both the covered 
judicial or administrative action and related action within ninety 
(90) days of the date of the Notice of Covered Action. The claims 
may be submitted on the same Form WB-APP.
     If a final order imposing monetary sanctions in a 
related action relates to a judicial or administrative action 
brought by the Commission under the Commodity Exchange Act that is 
not a covered judicial or administrative action, and therefore there 
would not be a Notice of Covered Action, you must submit your claim 
on Form WB-APP for an award in connection with the related action 
within ninety (90) calendar days following either (1) the date of 
issuance of a final order in the related action, if that date is 
after the date of issuance of the final judgment in the related 
Commission judicial or administrative action; or (2) the date of 
issuance of the final judgment in the related Commission judicial or 
administrative action, i.e., the date the related action becomes a 
related action, if the date of issuance of the final order in the 
related action precedes the final judgment in the related Commission 
judicial or administrative action.
     To submit your Form WB-APP, you may print it and either 
submit it by mail to Commodity Futures Trading Commission, 
Whistleblower Office, Three Lafayette Centre, 1155 21st Street NW., 
Washington, DC 20581, or by facsimile to (202) 418-5975. You also 
may submit this form electronically, through the web portal found on 
the CFTC's Web site at http://www.cftc.gov, which is also accessible 
from the CFTC Whistleblower Program Web site at 
www.whistleblower.gov.

Instructions for Completing Form WB-APP

General

    All references to ``you'' and ``your'' are intended to mean the 
whistleblower award claimant.

Section A: Tell Us about Yourself

    Questions 1-3: Please provide the following information about 
yourself:
     last name, first name, middle initial and the last four 
digits of your Social Security Number;
     complete address, including city, state and zip code;
     telephone number and, if available, an alternate number 
where you can be reached; and
     your email address (to facilitate communications, we 
strongly encourage you to provide an email address, especially if 
you are making your claim anonymously).

Section B: Your Attorney's Information

    Complete this section only if you are represented by an attorney 
in this matter.
    Questions 1-4: Provide the following information about your 
attorney:
     attorney's name;
     firm name;
     complete address, including city, state and zip code;
     telephone number and fax number; and
     email address.

Section C: Tell Us about Your Tip or Complaint

Question 1a: Indicate the manner in which you submitted your 
original information to the CFTC.
Question 1b: Provide the date on which you submitted your original 
information to the CFTC.
Question 2a: State whether you filed a CFTC Form TCR.
Question 2b: If you filed a CFTC Form TCR, provide the Form's 
number.
Question 2c: If you filed a CFTC Form TCR, provide the date on which 
you filed the Form.
Question 3: Provide the name(s) of the individual(s) and/or 
entity(s) to which your tip or complaint relates.

Section D: Notice of Covered Action

    The process for making a claim for a whistleblower award for a 
CFTC action begins with the publication of a ``Notice of Covered 
Action'' on the CFTC's Web site. This Notice is published whenever a 
judicial or administrative action brought by the CFTC results in the 
imposition of monetary sanctions exceeding $1,000,000. The Notice is 
published on the CFTC's Web site subsequent to the entry of a final 
judgment or order in the action that by itself, or collectively with 
other judgments or orders previously entered in the action, exceeds 
the $1,000,000 threshold required for a whistleblower to be 
potentially eligible for an award. The CFTC will not contact 
whistleblower claimants directly as to Notices of Covered Actions; 
prospective claimants should monitor the CFTC Web site for such 
Notices.

[[Page 59581]]

Question 1: Provide the date of the Notice of Covered Action to 
which this claim relates.
Question 2: Provide the notice number of the Notice of Covered 
Action.
Question 3a: Provide the case name referenced in the Notice of 
Covered Action.
Question 3b: Provide the case number referenced in the Notice of 
Covered Action.

Section E: Claims Pertaining to Related Actions

Question 1: Provide the name of the agency or organization to which 
you provided your information.
Question 2: Provide the name and contact information for your point 
of contact at the agency or organization, if known.
Question 3a: Provide the date on which you provided your information 
to the agency or organization referenced in Question 1 of this 
section.
Question 3b: Provide the date on which the agency or organization 
referenced in Question 1 of this section filed the related action 
that was based upon the information that you provided.
Question 4a: Provide the case name of the related action.
Question 4b: Provide the case number of the related action.

Section F: Eligibility Requirements and Other Information

Question 1: State whether you are currently, or were at the time 
that you acquired the original information that you submitted to the 
CFTC, a member, officer or employee of: the CFTC; the Board of 
Governors of the Federal Reserve System; the Office of the 
Comptroller of the Currency; the Board of Directors of the Federal 
Deposit Insurance Corporation; the Director of the Office of Thrift 
Supervision; the National Credit Union Administration Board; the 
Securities and Exchange Commission; the Department of Justice; a 
registered entity; a registered futures association; a self-
regulatory organization; a law enforcement organization; or a 
foreign regulatory authority or law enforcement organization.
Question 2: State whether you provided the information that you 
submitted to the CFTC pursuant to a cooperation agreement with the 
CFTC, or with any other agency or organization.
Question 3: State whether you provided this information before you 
(or anyone representing you) received any request, inquiry or demand 
that relates to the subject matter of your submission (i) from the 
CFTC, (ii) in connection with an investigation, inspection or 
examination by any registered entity, registered futures association 
or self-regulatory organization, or (iii) in connection with an 
investigation by the Congress, or any other federal or state 
authority.
Question 4: State whether you are currently a subject or target of a 
criminal investigation, or whether you have been convicted of a 
criminal violation, in connection with the information that you 
submitted to the CFTC and upon which your application for an award 
is based.
Question 5: State whether you acquired the information that you 
provided to the CFTC from any individual described in Questions 1 
through 4 of this section.
Question 6: If you answered yes to any of Questions 1 through 5 of 
this section, please provide details.

Section G: Entitlement to Award

    This section is optional. Use this section to explain the basis 
for your belief that you are entitled to an award in connection with 
your submission of information to the CFTC, or to another agency in 
connection with a related action. Specifically, address why you 
believe that you voluntarily provided the CFTC with original 
information that led to the successful enforcement of a judicial or 
administrative action filed by the CFTC, or a related action. Refer 
to Sec.  165.9 of Part 165 of the CFTC's regulations for further 
information concerning the relevant award criteria.
    Section 23(c)(1)(B) of the Commodity Exchange Act and Sec.  
165.9(a) of Part 165 of the CFTC's regulations require the CFTC to 
consider the following factors in determining the amount of an 
award: (1) the significance of the information provided by a 
whistleblower to the success of the CFTC action or related action; 
(2) the degree of assistance provided by the whistleblower and any 
legal representative of the whistleblower in the CFTC action or 
related action; (3) the programmatic interest of the CFTC in 
deterring violations of the Commodity Exchange Act (including 
regulations under the Act) by making awards to whistleblowers who 
provide information that leads to the successful enforcement of such 
laws; (4) whether the award otherwise enhances the CFTC's ability to 
enforce the Commodity Exchange Act, protect customers, and encourage 
the submission of high quality information from whistleblowers; and 
(5) potential adverse incentives from oversize awards. Address these 
factors in your response as well.

Section H: Claimant's Declaration

    You must sign this Declaration if you are submitting this claim 
pursuant to the CFTC whistleblower program and wish to be considered 
for an award. If you are submitting your claim anonymously, you must 
do so through an attorney, and you must provide your attorney with 
your original signed Form WB-APP.

Section I: Counsel Certification

    If you are submitting this claim pursuant to the CFTC 
whistleblower program anonymously, you must do so through an 
attorney, and your attorney must sign the Counsel Certification 
Section.


    Issued in Washington, DC, on August 24, 2016, by the Commission.
Christopher J. Kirkpatrick,
Secretary of the Commission.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Appendix to Whistleblower Awards Process--Commission Voting Summary

    On this matter, Chairman Massad and Commissioners Bowen and 
Giancarlo voted in the affirmative. No Commissioner voted in the 
negative.

[FR Doc. 2016-20745 Filed 8-29-16; 8:45 am]
 BILLING CODE 6351-01-P