2017-10801

Federal Register, Volume 82 Issue 102 (Tuesday, May 30, 2017)

[Federal Register Volume 82, Number 102 (Tuesday, May 30, 2017)]

[Rules and Regulations]

[Pages 24487-24521]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2017-10801]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 165

RIN 3038-AE50

Whistleblower Awards Process

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'') is

amending its regulations and forms 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 making appropriate rule amendments to implement its reinterpretation

of the Commission's anti-retaliation authority.

DATES: This final rule is effective July 31, 2017.

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: The Commission is amending its rules in

Sec. Sec. 165.1 through 165.19 and appendix A, and adopting new rule

Sec. 165.20 and appendix B as well as amending Forms TCR (``Tip,

Complaint or Referral'') and WB-APP (``Application for Award for

Original Information Provided Pursuant to Section 23 of the Commodity

Exchange Act'').

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.\1\ 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.

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\1\ See Whistleblower Incentives and Protection, 76 FR 53172

(Aug. 25, 2011).

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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. In order to address that

need the Commission proposed amendments to the part 165 rules

(``Proposal'').\2\ As explained further below, these rules provide for

targeted revisions to the claims review process and to the authority of

staff to administer the

[[Page 24488]]

whistleblower program. The Commission also proposed to amend the rules

to implement its anti-retaliation authority under Section 23(h)(1)

based on a reinterpretation of that authority. Finally, the Commission

proposed 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.

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\2\ Whistleblower Awards Process, 81 FR 59551 (Aug. 30, 2016).

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The Commission received seven comment letters in response to the

Proposal. Most of the comment letters focused on specific aspects of

the proposed rule amendments and made targeted recommendations and

suggestions. Three of the comment letters were from private

individuals, two were from law firms with whistleblower practices, and

two were from whistleblower advocacy groups.\3\ Most of the comments

received were generally supportive of the Commission's whistleblower

program and proposed changes to the rules. One comment letter was

critical of the current process for handling whistleblower award claims

but did not provide specific comments on the proposed rules.\4\ One of

the whistleblower advocacy groups incorporated by reference the comment

letter previously submitted by the other group.\5\

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\3\ See, respectively, the following: Letter dated September 12,

2016, from Joseph N. Perlman; Letter dated September 16, 2016, from

Chris Barnard; Letter dated September 27, 2016, from Matthew Erpen;

Letter dated September 29, 2016, from Robert D.M. Garson, Garson,

Segal, Steinmetz, Fladgate LLP (GS2Law); Letter dated September 29,

2016, from Eric L. Young, Esq., and James J. McEldrew, Esq.,

McEldrew Young (MY); Letter dated September 28, 2016, from Jacklyn

N. DeMar, Acting Director of Legal Education, Taxpayers Against

Fraud (TAF); and Letter dated September 29, 2016, from Stephen M.

Kohn, Executive Director, and David K. Colapinto, General Counsel,

National Whistleblower Center (NWC).

\4\ See Joseph N. Perlman comment letter.

\5\ See NWC comment letter.

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II. Description of Final Rules

The Commission is adopting the amendments to its part 165

whistleblower rules as set forth in the Proposed Rules with certain

changes made in response to public comments. The amendments and the

public comments relevant to each amendment are discussed below.\6\

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\6\ The public comments on the Proposed Rule are available at

https://comments.cftc.gov/PublicComments/CommentList.aspx?id=1733.

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Eligibility Requirements for Consideration of an Award

a. Proposed Rule

The Commission proposed targeted changes to the rules relating to

consideration of an award. The Commission proposed to revise Rule 165.5

to make clear that a claimant may receive an award in a Covered Action,

in a Related Action, or both. Also in Rule 165.5, the Commission

proposed 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, and the Commission provided the

public with notice that the Commission has discretion to waive its

procedural rules based upon a showing of extraordinary circumstances.

In addition, the Commission proposed to revise the definition of

``original source'' in Rule 165.2(l) to extend the timeframe from 120

to 180 days that a whistleblower has to file a Form TCR pursuant to

Rule 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 Rule 165.2(g)(4) and (5).

b. Comments Received

The Commission received several comments regarding the proposed

changes to the requirements for consideration of an award.

Proposed Rule 165.5(b) removed being the original source of

information received by the Commission from the eligibility criteria

for an award. The Commission received one comment which endorsed this

approach.\7\

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\7\ See TAF comment letter.

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The Commission received two comments regarding the Commission's

proposal to amend Rule 165.5(c) to allow the Commission to waive

procedural requirements in extraordinary circumstances. Both commenters

supported the proposed change to this rule.\8\ One commenter noted that

the proposed change to this rule is consistent with the overall policy

goals of the whistleblower program and that whistleblowers have varying

levels of sophistication and familiarity with the procedural

requirements.\9\ Another commenter noted that rigid application of the

procedural requirements would undermine the spirit of Congress when it

created the whistleblower program and that the proposed change would

further encourage whistleblowers to provide information even when they

may not have followed all of the technical rules to be eligible for an

award.\10\

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\8\ See TAF and MY comment letters.

\9\ See TAF comment letter.

\10\ See MY comment letter.

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Proposed Rule 165.2(l) extended the deadline from 120 to 180 days

that a whistleblower has to make a submission to the Commission and

retain status as the original source of information after first

submitting the 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

paragraphs (g)(4) and (5) of Rule 165.2 to be eligible for an award.

The Commission received two comments supporting this proposed

change.\11\ One commenter stated that many whistleblowers are often at

or beyond the 120-day period before considering external reporting

because they wait for the outcome of the internal investigation before

reporting externally and internal investigations often take some time.

This commenter also stated that while 180 days is a substantial

improvement, an even longer time frame would help ensure that well-

intentioned individuals receive full credit for their information.\12\

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\11\ See TAF and MY comment letters.

\12\ See MY comment letter.

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The other commenter agreed that the period of eligibility should be

lengthened to 180 days but urged the Commission to state that the 180-

day period refers only to the whistleblower's ``look back'' eligibility

to retain original source status and that whistleblowers will not lose

that status or eligibility for an award if they perfect their

submission to the Commission after 180 days elapse. This commenter also

urged the Commission to revise Rule 165.2(l)(2) to include individuals

who first provide information to foreign governments or self-regulatory

authorities because of the global nature of the commodities markets and

the increasing number of international whistleblowers participating in

the Dodd-Frank whistleblower programs. This commenter went on to state

that there is no persuasive policy reason for excluding such persons

from original source status because some of the Commission's recent

enforcement cases were brought with the cooperation of foreign

authorities and the proposed rules allow for whistleblower awards based

on Related Actions by certain foreign authorities. Hence, this

commenter argued that if whistleblowers may receive awards based on

Related Actions undertaken by foreign authorities, those whistleblowers

should be entitled to original source eligibility in instances where

they report to a foreign authority prior to reporting to the

Commission.\13\

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\13\ See TAF comment letter.

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[[Page 24489]]

c. Final Rule

The Commission received no comments regarding the proposed revision

in Rule 165.5(a)(3) that makes clear that a claimant may receive an

award in a Covered Action, in a Related Action, or both and,

accordingly, is adopting the amendment as proposed.

With respect to the proposed revision to Rule 165.5(b), the

Commission believes that removing the requirement that the

whistleblower be the original source of information received by the

Commission is consistent with Section 23(b)(1), and will prevent the

potential situation where a claimant reports internally before

providing information to the Commission and the employer self-reports

the violation of the CEA, thereby foreclosing the claimant's

eligibility for an award because the employer is the ``original

source'' of the information. The Commission is adopting this amendment

as proposed.

The Commission has also decided to adopt as proposed Rule 165.5(c),

which clarifies that the Commission may waive any procedural

requirements upon a showing of extraordinary circumstances.

After consideration of the comments on Rule 165.2(l), the

Commission has decided to adopt the rule with one change, a conforming

change and a minor correction. The Commission is adding foreign futures

authorities \14\ to the authorities and entities to which a claimant

may provide information prior to filing a Form TCR and retain original

source status. This change is consistent with the list of agencies and

authorities in Section 23(h)(2)(C) with which the Commission can share

information received from a whistleblower if necessary or appropriate

to accomplish the purposes of the Commodity Exchange Act and protect

customers. The Commission understands that individuals who are located

outside the United States might decide to approach a local authority

prior to providing information to the Commission. As a result, and in

consideration of the global nature of the futures and swaps markets and

the number of the Commission's recent enforcement actions that have

been undertaken with the cooperation of foreign governments, the

Commission believes it is appropriate to expand the list of entities in

Rules 165.2(l)(1)(i) and 165.2(l)(2). In addition, the Commission is

adding registered entity and registered futures association to, and

removing futures association from the list of authorities in Rule

165.2(i)(2); and adding registered entity and registered futures

association to Rule 165.2(l)(1)(i) in order to conform those rules to

existing language in Rules 165.4(a)(2) and 165.11 and to Section

23(h)(2)(C)(i). The Commission is correcting a typographical error in

Rule 165.2(l)(2) by removing ``of any'' and correcting an omission by

inserting ``local'' in the list of authorities in the first sentence.

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\14\ Section 1a(26) of the CEA defines foreign futures authority

as any foreign government, or any department, agency, governmental

body, or regulatory organization empowered by a foreign government

to administer or enforce a law, rule, or regulation as it relates to

a futures or options matter, or any department or agency of a

political subdivision of a foreign government empowered to

administer or enforce a law, rule, or regulation as it relates to a

futures or options matter.

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The Commission also clarifies that the 180-day timeframe in Rule

165.2(l)(2) relates only to the date on which the Commission will

consider a whistleblower's original information to have been received.

Filing a Form TCR more than 180 days after reporting information to

another authority does not strip a whistleblower of original source

status or render a whistleblower ineligible for an award. Also, the

Commission is amending Rule 165.2(i)(3) to extend the time from 120 to

180 days in order to conform that rule to the extension of the

timeframe in Rule 165.2(1)(2).

Award Claims Review Under Rule 165.7

a. Proposed Rules

The Commission proposed several changes to the award claims review

process under Rule 165.7 to better define and specify each step in the

process. Those steps were spelled out in proposed new paragraphs (f)

through (l), along with new provisions regarding withdrawing award

applications in 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). The

proposed amendments would establish a review process similar to that

established under the SEC's whistleblower rules.\15\ Specifically, the

Commission 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, with the

Claims Review Staff being assisted by the Whistleblower Office staff

within the Division of Enforcement. The proposed rules also would

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 Rule 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 Rule 165.7(b)(3); and make a

conforming change by renumbering prior paragraph (e) in Rule 165.7 as

paragraph (l).

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\15\ See 17 CFR 240.21F-10(d)-(h) (2014).

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Proposed Rule 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.

Proposed Rule 165.7(e) addressed 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 proposed that

such facially ineligible claims primarily be handled by the

Whistleblower Office. The Whistleblower Office would 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 would notify the Claims Review Staff of the

proposed denial, which would be called a Proposed Final Disposition,

and any member of the Claims Review Staff would have the opportunity to

request review of the proposed denial. If no member of the Claims

Review Staff requests review, the Proposed Final Disposition would

become the final order of the Commission. If a member of the Claims

Review Staff requests review, the Claims Review Staff would 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.

In Rule 165.7(f), the Commission proposed that the Claims Review

Staff would evaluate all timely award applications submitted on a Form

WB-APP in response to the NCA or a final judgment in a Related Action.

During the review process, the Whistleblower Office may require that

claimants provide additional information, explanation, or assistance as

set forth in Rule 165.5(b)(3). For award claims on Related Actions, as

proposed in Rule 165.7(f), the Whistleblower Office may request

additional information from the claimant to demonstrate that the

[[Page 24490]]

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.

In Rule 165.7(g)(1), the Commission proposed that following the

initial evaluation by the Claims Review Staff, the Claims Review Staff

would 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 would send a copy of the Preliminary Determination

to the claimant. The proposed amendments would allow a claimant the

opportunity to contest the Preliminary Determination.

In Rule 165.7(g)(2), the Commission proposed that 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.

Proposed Rule 165.7(h) provides that if a claimant fails to submit

a timely response under new Rule 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. Failure to exhaust administrative remedies

would prohibit the claimant from pursuing judicial review.

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 Rule 165.7(j).

Proposed Rule 165.7(i) describes the procedure in cases where a

claimant submits a timely response under proposed Rule 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 provided, and prepare a Proposed Final Determination.

In Rule 165.7(j), the Commission proposed that when there is a

Proposed Final Determination, the Whistleblower Office would 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 would become the Commission's

Final Order. If a Commissioner does request review, the Commission

would 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 would issue its Final Order, which the Office of the

Secretariat would then serve on the claimant. In reaching their

decisions, the Commission and Claims Review Staff would only consider

information in the record.

The Office of General Counsel would 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.

In Rule 165.15(a)(2), the Commission proposed that the Enforcement

Director, in consultation with the Executive Director, would 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

would 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.

b. Comments Received

The Commission received two generally supportive comments regarding

the proposed additions and changes to the award review process.\16\ One

commenter stated that having dedicated staff for award determinations

would be beneficial and urged the Commission to publish NCAs for

Related Actions that the Commission knows emanated from the information

provided by the whistleblower.\17\ The other commenter reasoned that

the proposed changes in the process allow whistleblowers to better

understand the reasons for a particular award or denial and to make

informed requests for reconsideration, and that the proposed changes

offer greater transparency in the awards process and will likely

obviate the need for some appeals.\18\

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\16\ See GS2Law and TAF comment letters.

\17\ See GS2Law comment letter.

\18\ See TAF comment letter.

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c. Final Rule

After consideration of the comments received, the Commission has

decided to adopt Rule 165.7 as proposed. The Commission anticipates

that these revisions will provide the public and claimants with greater

transparency in the awards claim review process and enhance the

expeditious and fair administration of the program. The Commission

declines a commenter's request that the Commission publish NCAs for

Related Actions. The Commission believes that doing so would be

unworkable and burdensome for the Commission. Publishing NCAs on all

criminal and civil actions that may become Related Actions would

require staff to track, monitor, and report on many actions that are

not Commission actions. Rule 165.7(b)(3) clearly describes how and when

actions brought by other agencies become Related Actions and when a

claimant must file a Form WB-APP with the Commission to apply for an

award in connection with these actions. It is the claimant's

responsibility to track the outcome of a Related Action if the claimant

has an interest in pursuing an award application based on that Related

Action.

In response to the comment on the nature of the Claims Review

staff, the Commission notes that the Claims Review Staff will be drawn

from the Commission's Divisions and Offices, other than the Office of

General Counsel. As detailed in Rule 165.7, the role of Claims Review

Staff is primarily

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to make preliminary decisions on the merits of award applications

including, if applicable, award amounts.\19\ Service by a Commission

employee on the Claims Review Staff will be in addition to the other

duties of the employee in their Division or Office. As is the case at

the SEC, the Claims Review Staff will be assisted by staff from the

Whistleblower Office who will assemble the factual record related to an

award claim, provide analysis of an award claimant's eligibility and,

if applicable, make a recommendation of a proposed award amount.

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\19\ The Commission will have an opportunity to review

preliminary denial decisions that are contested by the claimant and

all award recommendations. See Rule 165.7(j).

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Awards for Related Actions

a. Proposed Rules

For award claims on Related Actions, the Commission proposed to

amend Rule 165.11 to permit claimants who are eligible to receive an

award in a covered judicial or administrative action to also 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 has 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 would be precluded from

relitigating any issues before the Commission that the SEC resolved

against the claimant as part of the SEC's award denial. The 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.

A Related Action under Rule 165.2(m) 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. The Commission accordingly proposed

revisions to clarify timing requirements for filing whistleblower award

claims regarding Related Actions. The proposed revisions were intended

to clarify that, except in the circumstances described in proposed Rule

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.

b. Comments Received

The Commission received one comment regarding Proposed Rule 165.11.

The commenter expressed some confusion as to whether the information

provided by a whistleblower must be presented to the Commission prior

to presenting the information to another authority in order for a

whistleblower to be eligible for an award in a Related Action.\20\ The

commenter stated that the Commission should clarify that whistleblowers

who first take their information to another authority and later provide

their information to the Commission are eligible for an award.

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\20\ See TAF comment letter.

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c. Final Rule

The Commission has decided to adopt Rule 165.11 as proposed. The

Commission also takes this opportunity to clarify that a whistleblower

retains eligibility under Rule 165.11, Rule 165.5, and Rule 165.2(l)

for an award based on information provided by the whistleblower to

another authority prior to the time that the whistleblower provided the

information to the Commission.

Contents of Record for Award Determinations

a. Proposed Rules

The Commission proposed to amend Rule 165.10(a) to identify

additional items that may be included in the contents of record for

award claims as a result of the Commission's proposal to amend Rule

165.11 to permit claimants who are eligible to receive an award in a

covered judicial or administrative action to also receive an award

based on the monetary sanctions that are collected from a final

judgment in a Related Action. 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 types of information may be relied upon by the Commission or

the Claims Review Staff in making a decision on a whistleblower award

claim or 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 proposed revisions to Rules 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.

b. Comments Received

The Commission received one comment regarding the record for award

determinations and appeals. This commenter strongly urged the

Commission to further revise Proposed Rules 165.10 and 165.13 to not

categorically exclude from the record pre-decisional and internal

deliberative process materials prepared to assist the Commission in

award determinations, and suggested that the Commission would be

denying whistleblowers a meaningful right to appeal by defining by rule

what constitutes the record.\21\

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\21\ See TAF comment letter.

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c. Final Rule

Following consideration of the comments received, the Commission

has decided to adopt the revisions to Rules 165.10(a) and (b) and

165.13(b) as proposed. The Commission disagrees with the comment that

the Commission defining by rule what constitutes the record denies a

claimant a meaningful right to appeal award determinations.\22\ Under

Rules 165.10 and 165.13, all factual materials relied on by Claims

Review Staff or the Commission in making an award determination will be

available to the claimant and reviewing court. The Commission believes

that pre-decisional or internal deliberative process materials that are

prepared to assist the Commission or Claims Review Staff from the

record are protected by attorney-client privilege as well as attorney

work product under well

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settled law. Similarly, the exclusion of any documents or materials

provided by a third-party that have not been authorized for release by

the third-party does not deny the claimant due process because these

materials will not be considered by the Commission or Claims Review

Staff in reaching a decision on the award claim.

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\22\ As an example, the commenter referred to appeals of IRS

whistleblower cases (Insinga v. Commissioner, Tax Court Docket No.

9011-13W (July 27, 2016) and Whistleblower One 10683-13W et al. v.

Commissioner, 145 T.C. No. 8 (September 16, 2015)) in which the

whistleblower sought factual information in the underlying

enforcement cases to determine whether the information the

whistleblower provided the IRS contributed to the success of the

enforcement action. The Commission believes its practice is

distinguishable in that all of the facts that underlie the

Commission's decision are included in the record under Rules 165.10

and 165.13.

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Authority To Administer the Program

a. Proposed Rule

The Commission proposed to directly assign responsibilities for

administering the program by rule rather than by delegation in Rule

165.15 in light of the proposed changes to the claims review process.

Since 2013, the Whistleblower Office 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 consistent with the SEC's practice.

The Commission also proposed 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 proposed,

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.

b. Comments Received

The Commission received no comments regarding the proposed changes

to the authority to administer the whistleblower program.

c. Final Rule

The Commission has decided to adopt the revisions to the authority

to administer the program as proposed.

Whistleblower Identifying Information

a. Proposed Rule

Rule 165.4 implements the confidentiality protections for

whistleblower identifying information contained in Section 23(h)(2). In

proposed Rule 165.15(a)(3), the Commission proposed to authorize the

Director of the Division of Enforcement to act on its behalf to

disclose whistleblower identifying information as permitted by Section

23(h)(2)(C) and Rule 165.4(a)(2) and (3). The Commission stated in the

Proposal that it expects the Director of Enforcement to exercise this

discretion to release such sensitive information in a manner consistent

with, and when deemed necessary or appropriate to accomplish, the

customer protection and law enforcement goals of the whistleblower

program. The Commission said in the Proposal that it 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 Section

23(h)(2)(C) and Rule 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 Section 23(h)(2)(A) and such sharing 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 Section 8 of the CEA. The Commission also proposed to

revise a question in the Form TCR, question E.8, seeking consent from

whistleblowers to share their information with other authorities.

b. Comments Received

The Commission received one comment opposing the proposed changes

to Rule 165.4 and Form TCR. The commenter viewed the proposed changes

as a ``loosening'' of the confidentiality of a whistleblower's

identity. In addition, the commenter suggested that: (1) A

whistleblower should be entitled to know the other agencies with which

identifying information is shared; (2) the scope of the proposal on

sharing the whistleblower's identifying information is too broad; and,

(3) the Commission does not have the ability to monitor or enforce

confidential treatment of the whistleblower's identifying information

once it has been shared with other agencies. The commenter also

suggested that the whistleblower should be consulted by the Commission

prior to any sharing of the whistleblower's identifying information

with other agencies and provided the opportunity to prevent such

sharing because the whistleblower may have reported to the Commission

rather than to another authority as the result of previous encounters

with personnel at other agencies that left the whistleblower with less

trust or confidence in those agencies. Finally, the commenter argued

that the sharing of information with self-regulatory organizations is

too broad because the term ``self-regulatory organization'' is not

properly defined in the rules.\23\

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\23\ See GS2Law comment letter.

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c. Final Rule

After consideration of the comment received, the Commission is

adopting Rule 165.4(a)(2) as proposed, with a minor change. Section

23(h)(2)(C) provides the Commission with the authority to share all

information provided by the whistleblower with the authorities listed

in that section without the consent or consultation of the

whistleblower, subject to the limitation that providing the

whistleblower's identifying information is necessary or appropriate to

accomplish the purposes of the CEA and protect customers. Reassigning

the authority to make the decision to disclose whistleblower

identifying information in a manner permitted by Section 23(h)(2)(C)

from the Director of the Whistleblower Office to a more senior

Commission official, the Director of the Division of Enforcement, is

not a loosening of whistleblower identity protections. 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 Section 23(h)(2)(C) and Rule 165.4. Section 23(h)(2)(C)(i), Rule

165.4(a)(2), and the Privacy Act Notice on Form TCR identify for

whistleblowers the entities with which whistleblower identifying

information may be shared. If a potential whistleblower is not

comfortable with the possibility that confidential information about

them may be shared with one or more of these entities, the potential

whistleblower can decide not to file a Form TCR.

The Commission does not believe that Commission monitoring of the

treatment of confidential whistleblower information by a receiving

authority is necessary. As the commenter pointed out, receiving

authorities are bound by the same confidentiality provisions as the

Commission. The Commission makes sure that a receiving authority

understands these limitations when it shares confidential whistleblower

information with them. Further, all of the entities with which the

Commission may share confidential information are experienced in

handling and protecting confidential information such as whistleblower

identifying information.

The Commission does not agree with the commenter's assertion that

``self-

[[Page 24493]]

regulatory organization'' is not defined. Section 23(h)(2)(C)(i)(III)

limits the self-regulatory organizations with which confidential

whistleblower information can be shared to those self-regulatory

organizations that fit within the definition in section 3(a) of the

Securities Exchange Act of 1934.\24\ This is the meaning of ``self-

regulatory organization'' throughout Section 23 of the CEA and the part

165 Rules. To eliminate any confusion in this regard, the Commission is

making conforming amendments throughout the Part 165 Rules to clarify

that a self-regulatory organization is a self-regulatory organization

as defined by section 3(a) of the Securities Exchange Act of 1934.

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\24\ 15 U.S.C. 78c(a).

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Finally, in light of the comments, the Commission also has

determined to remove Question E.8 on Form TCR. The wording of this

question was not consistent with the authority granted to the

Commission to share whistleblower identifying information in Section

23(h)(C)(i) and the language of Rule 165.4(a)(2). The Privacy Act

Notice in Form TCR puts potential whistleblowers on notice that the

information that they provide to the Commission may be shared with

other authorities.

Retaliation Against Whistleblowers

a. Proposed Rule

In the Proposal, the Commission proposed several substantial

changes to its anti-retaliation authority. The Commission proposed

revisions to Rule 165.19 and appendix A, and the addition of new Rule

165.20. The Commission proposed to amend Rule 165.19 to prohibit a

person from taking any action to impede an individual from

communicating directly with the Commission's staff about a possible

violation of the CEA, including by enforcing, or threatening to

enforce, a confidentiality agreement or predispute arbitration

agreement with respect to such communications. The Commission also

proposed to revise its 2011 interpretation that it lacked statutory

authority to bring an enforcement action against an employer that

retaliated against a whistleblower. The Commission proposed that

Sections 6(c), 6(d), 6b, 6c, and 23(i) of the CEA allow the Commission

to pursue such violations of the Act through an enforcement action. The

Commission proposed Rule 165.20 to make clear that Section 23(h)(1)(A)

of the CEA, including the rules in part 165 promulgated thereunder, is

enforceable in an action or proceeding brought by the Commission.

Proposed Rule 165.20(c) provides that the anti-retaliation protections

apply irrespective of whether a whistleblower qualifies for an award.

The Commission also proposed changes to appendix A to reflect the

Commission's ability to bring enforcement actions to prosecute

violations of the anti-retaliation prohibition of Section 23(h)(1)(A).

b. Comments Received

The Commission received several comments regarding the proposed

revisions to the anti-retaliation provisions. The Commission received

one comment letter that addressed the proposed revisions to Rules

165.19(b), 165.20(b) and 165.20(c) \25\ and another comment letter

focused on proposed Rule 165.20(c).\26\

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\25\ See MY comment letter.

\26\ See MY and TAF comment letters.

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The comment on Rule 165.19(b) supported the proposal and noted that

this change will more closely align the Commission with the SEC with

respect to combating the chilling of whistleblowing by employers who

require waivers of rewards in severance packages for whistleblowing.

This commenter was similarly supportive of the proposed expansion

of Commission enforcement authority to address retaliation against

whistleblowers. This commenter noted that more substantial penalties or

a government enforcement action would be more apt to deter retaliation

against whistleblowers than only a private right of action.

Both commenters asked the Commission to clarify its position on

proposed Rule 165.20(c) with regard to taking enforcement action

against employers that retaliate against whistleblowers prior to the

whistleblower filing a Form TCR with the Commission. One commenter

reiterated the point that many whistleblowers await the outcome of any

internal investigation before providing the Commission any

information.\27\ In the commenter's view, it would not be fair or in

the public interest to leave such a whistleblower unprotected during

this interim period between reporting internally and filing a Form TCR

with the Commission. This commenter further explained that the

Commission taking enforcement action when companies or individuals

retaliate against whistleblowing activity prior to the filing of a Form

TCR will create additional incentives for employees to report

internally before providing information to the Commission.

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\27\ See MY comment letter.

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c. Final Rule

Having considered the fully supportive comment on Rules 165.19(b)

and 165.20(b), the Commission is adopting these rules as proposed. The

Commission is also re-organizing and making minor changes to proposed

Appendix A to better reflect the fact that either the Commission or a

private litigant can bring an action for a violation of Section

23(h)(1)(A).

By adopting proposed Rule 165.20(b), the Commission is confirming

its decision to revise its 2011 interpretation that it lacks the

statutory authority to bring an enforcement case against an employer

that violates the anti-retaliation prohibition in Section 23(h)(1). The

2011 interpretation failed to fully consider the statutory context of

Section 23 and other CEA provisions. The 2011 interpretation does not

comport with Section 23(h)(1)(A)'s prohibition against retaliation; the

Commission's broad rulemaking authority under Section 23(i); and, the

Commission's general authority to prosecute violations of any CEA

provision (including Section 23(h)(1)(A)) as well as violations of the

Commission's rules and orders under CEA sections 6(c), 6(d), 6b and 6c.

Sections 6(c), 6(d), 6b and 6c of the Act empower the Commission to

take actions for the violation of ``any'' CEA provision or rule or

regulation thereunder. Although Section 23(h)(1)(B) provides a private

right of action, nothing in that sub-section purports to limit the

Commission's general enforcement authority or suggests that the private

right of action is exclusive.

With regard to Rule 165.20(c), the Commission has decided, after

considering the comments received, to adopt it with some modification.

The Commission believes these revisions will further encourage

whistleblowers to report internally\28\ as well as deter retaliatory

practices against whistleblowers.

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\28\ The part 165 Rules encourage whistleblowers to report

internally prior to reporting to the Commission. Rule 165.2(l)(2),

discussed above, allows a whistleblower to retain original source

status after reporting internally. Additionally, Rule 165.9(b)(4)

includes in the factors that may increase the amount of an award

whether and the extent to which a whistleblower reported the

possible violations through internal whistleblower, legal, or

compliance procedures before or at the same time as reporting those

violations to the Commission, and whether and the extent to which a

whistleblower assisted any internal investigation or inquiry

concerning the reported violations.

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It would be inconsistent for the Commission to encourage internal

reporting by whistleblowers and not extend to them anti-retaliation

[[Page 24494]]

protections to the extent the CEA permits. To do so would place

whistleblowers who report internally in a worse position than

whistleblowers who do not report internally prior to reporting to the

Commission, forcing whistleblowers to choose between reporting

internally first in the hopes of increasing any award or foregoing

reporting internally in order to preserve anti-retaliation protections.

However, the anti-retaliation protections in the CEA do not extend

to all whistleblowers who report internally. Section 23(h) and Rule

165.20(a) provide that the whistleblower in a private action or the

Commission in an enforcement action must be able to show that

retaliation occurred because of any lawful act done by the

whistleblower in providing information to the Commission in accordance

with the part 165 rules, or assisting in any investigation or judicial

or administrative action of the Commission based upon or related to

such information. The ability to make this showing will depend on the

facts and circumstances of a particular case. Actions that an employer

took after a whistleblower reported internally but before providing

information to the Commission may be relevant to whether retaliation

that is prohibited under Section 23(h)(1) occurred. For this reason,

the Commission is adding language to Rule 165.20(b) to explicitly

recognize this possibility.

Payment of Awards

a. Comment Received

The Commission proposed no revisions to Rule 165.14 on the payment

of awards. However, the Commission received one comment regarding the

payment of awards.\29\ This commenter noted that the current part 165

Rules do not make available the payment of the minimum amount of an

award (10%) until the whistleblower's time to appeal has expired, and

suggested that the rules be amended to provide for payment of the

minimum amount of an award at the time the order of award is issued.

This commenter argued that once an award has been ordered by the

Commission, the Commission has admitted that there is an entitlement to

an award and the Commission is estopped from later removing an award

during the appeal process. In addition, this commenter stated that

often the elapsed time between the whistleblower's original tip and any

award is measured in years, not weeks or months, and that waiting on

the resolution of any appeals would only lengthen that timeframe.

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\29\ See GS2Law comment letter.

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b. Final Rule

The Commission declines the request to amend Rule 165.14 to permit

payment of any portion of an award prior to the completion of the

appeals process for all whistleblower award claims arising from a NCA

or Related Action.

Section 23(f)(2) provides that the Commission's determination to

whom to pay an award and the amount of any award is appealable to the

appropriate U.S. Court of Appeals. In response to an appeal from a

whistleblower who received no award from the Commission or who

disagreed with the amount of a Commission award, a Court of Appeals

could set aside the Commission's decision to make an award to another

whistleblower under the same NCA or Related Action if that award

decision does not meet the applicable standard of review.\30\ This

possibility makes it prudent for the Commission to refrain from paying

any portion of an award until the completion of the appeals process for

all whistleblower award claims arising from an NCA or a Related Action

as provided in Rule 165.14(b)(2). As a result, the Commission is not

making any changes to Rule 165.14 in response to the comment.

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\30\ 7 U.S.C. 26(f)(3) states that the court shall review the

determination made by the Commission in accordance with section 706

of title 5.

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Office of Consumer Outreach

a. Amendment

The office formerly known as the Office of Consumer Outreach has

changed its name to the Office of Customer Education and Outreach. The

Commission is renaming the Office in Rule 165.12. Because Rule 165.12

is a rule of the Commission's ``organization, procedure or practice''

the Commission need not present this revision for notice and

comment.\31\

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\31\ See 5 U.S.C. 553.

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Conforming and Technical Amendments

a. Proposed Amendments

To conform to the proposed changes to Rules 165.7 and 165.15, the

Commission proposed to strike the reference to ``or its delegate'' in

Rule 165.11 in the undesignated material before paragraph (a).

The Commission proposed to amend Rule 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 165.2(l) regarding the definition of original source.

The rule currently refers to paragraph (i) of this section.

The Commission proposed to make a minor change to the wording of

Rule 165.3 concerning the procedures for 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.\32\

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\32\ 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 proposed to amend Rule 165.13(b) concerning appeals

because it contains an erroneous cross-reference. The reference

intended is to Rule 165.10 regarding contents of the record, rather

than Rule 165.9 regarding criteria for determining award amounts.

The Commission proposed to move and include updated Form TCR and

Form WB-APP in 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.\33\ The Commission also proposed revisions to the submission

instructions portions of the forms to conform to the proposed revisions

in the part 165 Rules.

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\33\ 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 proposed 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).

b. Comments Received

The Commission received no comments regarding the proposed

conforming and technical amendments.

c. Final Rules

The Commission has decided to adopt the conforming and technical

amendments as proposed.

III. Related Matters

A. Regulatory Flexibility Certification

The Regulatory Flexibility Act \34\ 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.\35\ In the

Commission's Proposing Release, the Chairman, on behalf of the

Commission, certified that

[[Page 24495]]

a regulatory flexibility analysis is not required because the persons

that would be subject to the rules--individuals--are not ``small

entities'' for purposes of the Regulatory Flexibility Act and the rules

therefore would not have a significant economic impact on a substantial

number of small entities. The Commission received no comments regarding

this conclusion.

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\34\ 5 U.S.C. 601, et seq.

\35\ Id.

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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

amendments will not impose new recordkeeping or information collection

requirements that require approval by the Office of Management and

Budget under the PRA.

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.\36\ 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.

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\36\ 7 U.S.C. 19(a).

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Since the basic framework of part 165 remains substantially

unchanged, the Commission believes that the costs and benefits of the

rule amendments and the status quo baseline (the current rule), to

which the rules' costs and benefits are compared, are similar, but with

certain additional benefits attendant to these amendments.\37\ The Rule

165.7 amendments will add transparency to the Commission's process of

deciding whistleblower award claims and will harmonize the Commission's

rules with those of the SEC. The 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 will

increase the benefits of the part 165 Rules relative to the benefits of

the current rules because potential whistleblowers will have greater

clarity about the claims and awards process and greater assurance that

retaliation will not be tolerated. The Commission believes this clarity

and protection will encourage whistleblowers to step forward. Thus, the

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.

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\37\ The Commission believes that there is not likely to be any

material difference between the amendments and the status quo

baseline in terms of cost.

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The Rule 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

amendments relate solely to the Commission's allocation of authority

among its staff, the Commission believes that these changes will 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 will be enhanced through a more effective and efficient

deployment of staff resources.

The Rule 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

Section 23(h)(1) in conjunction with Sections 6(c), 6(d), 6b, 6c, and

23(i) of the CEA. These changes remove any gap in enforcement authority

between the Commission and the SEC with regard to whistleblower

protections against retaliation. The Commission believes that these

changes will impose no material costs on market participants or the

public. The rules do not impose any new regulatory burden.\38\ 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 rules will have a positive effect on

efficiency, competitiveness, and financial integrity of the markets

that the Commission regulates 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.

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\38\ The Commission believes that the new rule provision

regarding Commission enforcement does not significantly affect any

reliance interests because the provision relates to conduct that is

already prohibited by Section 23 of the CEA.

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The Commission believes that price discovery and sound risk

management practices will not be materially affected by the amendments.

Also, the Commission has not identified any other relevant public

interest considerations.

The Commission invited public comment on its cost-benefit

considerations, including the Section 15(a) factors described above.

Commenters were invited to submit any data or other information that

they had that quantified or qualified the costs and benefits of the

Proposal. None of the commenters submitted any data or other

information that quantified or qualified the costs and benefits of the

proposed rules, nor did they otherwise comment on the cost-benefit

considerations as stated in the proposed rules.

Alternatives Suggested by Commenters

The Commission adopts several alternatives and makes certain

clarifications as suggested by commenters to the proposal:

After consideration of the comments on Rule 165.2(l), the

Commission adopts the rule with one change and a correction. The

Commission is adding foreign futures authorities to the authorities and

entities to which a claimant may provide information prior to filing a

Form TCR and retain original source status.

The Commission clarifies that the 180-day timeframe in

Rule 165.2(l)(2) relates only to the date on which the Commission will

consider a whistleblower's original information to have been received.

Filing a Form TCR more than 180 days after reporting information to

another authority does not strip a whistleblower of original source

status or render a whistleblower ineligible for an award.

The Commission is adopting Rule 165.4(a)(2) as proposed,

with a minor change. Section 23(h)(2)(C)(i), Rule 165.4(a)(2), and the

Privacy Act Notice on Form TCR identify for

[[Page 24496]]

whistleblowers the entities with which whistleblower identifying

information may be shared.

Section 23(h)(2)(C)(i)(III) limits the self-regulatory

organizations with which confidential whistleblower information can be

shared to those self-regulatory organizations that fit within the

definition in section 3(a) of the Securities Exchange Act of 1934.\39\

The Commission is making conforming amendments throughout the part 165

Rules to clarify that a self-regulatory organization is a self-

regulatory organization as defined by section 3(a) of the Securities

Exchange Act of 1934.

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\39\ Infra, footnote 24.

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The Commission has determined to remove Question E.8 on

Form TCR. The wording of this question was not consistent with the

authority granted to the Commission to share whistleblower identifying

information in Section 23(h)(C)(i) and the language of Rule

165.4(a)(2). The Privacy Act Notice in Form TCR puts potential

whistleblowers on notice that the information that they provide to the

Commission may be shared with other authorities.

The Commission has decided to adopt Rule 165.20(c) with

some modification. The anti-retaliation protections in the CEA do not

extend to all whistleblowers who report internally. Actions that an

employer took after a whistleblower reported internally but before

providing information to the Commission may be relevant to whether

retaliation that is prohibited under Section 23(h)(1) occurred. For

this reason, the Commission is adding language to Rule 165.20(b) to

explicitly recognize this possibility.

The Commission also received alternatives to the final rule from

commenters that it chooses not to adopt:

The Commission does not elect to extend the deadline

beyond 180 days under 165.2(l) to retain status as the original source

of information after first submitting the information to Congress, any

federal or state authority, a registered entity, a registered futures

association, a self-regulatory organization, or to any persons

described in paragraphs (g)(4) and (5) of Rule 165.2 to be eligible for

an award. The Commission believes that 180 days provides ample time for

a whistleblower to provide information to the Commission after

submitting the information to any of the aforementioned entities or

authorities.

The Commission declines a commenter's request that the

Commission publish NCAs for Related Actions. The Commission believes

that doing so would be unworkable and burdensome for the Commission.

Publishing NCAs on all criminal and civil actions that may become

related actions would require staff to track, monitor, and report on

many actions that are not Commission actions.

The Commission has chosen not to further revise Proposed

Rules 165.10 and 165.13 to not categorically exclude from the record

pre-decisional and internal deliberative process materials prepared to

assist the Commission in award determinations. Under Rules 165.10 and

165.13, all factual materials relied on by Claims Review Staff or the

Commission in making an award determination will be available to the

claimant and reviewing court. The Commission believes that pre-

decisional or internal deliberative process materials that are prepared

to assist the Commission or Claims Review Staff are protected by

attorney-client privilege as well as attorney work product under well

settled law. Similarly, the exclusion of any documents or materials

provided by a third-party that have not been authorized for release by

the third-party does not deny the claimant due process because these

materials will not be considered by the Commission or Claims Review

Staff in reaching a decision on the award claim.

The Commission declines the request to amend Rule 165.14

to permit payment of any portion of an award prior to the completion of

the appeals process for all whistleblower award claims arising from a

NCA or related action. Section 23(f)(2) provides that the Commission's

determination to whom to pay an award and the amount of any award is

appealable to the appropriate U.S. Court of Appeals. In response to an

appeal from a whistleblower who received no award from the Commission

or who disagreed with the amount of a Commission award, a Court of

Appeals could set aside the Commission's decision to make an award to

another whistleblower under the same NCA or Related Action if that

award decision does not meet the applicable standard of review.\40\

This possibility makes it prudent for the Commission to refrain from

paying any portion of an award until the completion of the appeals

process for all whistleblower award claims arising from an NCA or a

related action as provided in Rule 165.14(b)(2).

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\40\ Infra, footnote 30.

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The Commission does not believe that Commission monitoring

of the treatment of confidential whistleblower information by a

receiving authority is necessary. Receiving authorities are bound by

the same confidentiality provisions as the Commission. The Commission

makes sure that a receiving authority understands these limitations

when it shares confidential whistleblower information with them.

D. Antitrust Considerations

Section 15(b) of the CEA 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 believes that the 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 did not receive any comments 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), Pub. L. 104-121 (March 29, 1996), as amended by Pub. L.

110-28 (May 25, 2007), 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:

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.

The Commission received no comments or 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 and the Chairman certifies that

these amendments do not constitute a ``major rule''.

List of Subjects in 17 CFR Part 165

Whistleblowing.

For the reasons set forth in the preamble, the Commodity Futures

Trading Commission amends 17 CFR part 165 as follows:

PART 165--WHISTLEBLOWER RULES

0

1. The authority citation for part 165 is revised to read as follows:

Authority: 7 U.S.C. 2, 5, 9, 12a(5), 13a, 13a-1, 13b, and 26.

[[Page 24497]]

0

2. In Sec. 165.2, revise paragraphs (i)(2) and (3), (l)(1)(i), (l)(2),

and (o) 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 registered entity, registered futures association, or

self-regulatory organization (as defined in section 3(a) of the

Securities Exchange Act of 1934 (15 U.S.C. 78c(a)), foreign futures

authority, 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.

(3) The whistleblower reported original information through an

entity's internal whistleblower, legal, or compliance procedures for

reporting allegations of possible violations of law before or at the

same time the whistleblower reported them to the Commission; the entity

later provided the whistleblower's information to the Commission, or

provided results of an audit or investigation initiated in whole or in

part in response to information the whistleblower reported to the

entity; and the information the entity provided to the Commission

satisfies either paragraph (i)(1) or (2) of this section. Under this

paragraph (i)(3), the whistleblower must also submit the same

information to the Commission in accordance with the procedures set

forth in Sec. 165.3 within 180 days of providing it to the entity.

* * * * *

(l) * * *

(1) * * *

(i) In order to be considered an original source of information

that the Commission receives from Congress, any other federal, state or

local authority, a foreign futures authority, any registered entity,

registered futures association, or any self-regulatory organization (as

defined in section 3(a) of the Securities Exchange Act of 1934 (15

U.S.C. 78c(a)), the whistleblower must have voluntarily given such

authorities the information within the meaning of this part. In

determining whether the whistleblower is the original source of

information, the Commission may seek assistance and confirmation from

one of the other entities or authorities described in this paragraph

(l)(1)(i).

* * * * *

(2) Information first provided to another authority or person. If

the whistleblower provides information to Congress, any other federal,

state, or local authority, a foreign futures authority, a registered

entity, a registered futures association, a self-regulatory

organization (as defined in section 3(a) of the Securities Exchange Act

of 1934 (15 U.S.C. 78c(a)), or to 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.

* * * * *

(o) Voluntary submission or voluntarily submitted. (1) The phrase

``voluntary submission'' or ``voluntarily submitted'' within the

context of submission of original information to the Commission under

this part, shall mean the provision of information made prior to any

request from the Commission, Congress, any other federal or state

authority, the Department of Justice, a registered entity, a registered

futures association, or a self-regulatory organization (as defined in

section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a))

to the whistleblower or anyone representing the whistleblower (such as

an attorney) about a matter to which the information in the

whistleblower's submission is relevant. If the Commission or any of

these other authorities makes a request, inquiry, or demand to the

whistleblower or the whistleblower's representative first, the

whistleblower's submission will not be considered voluntary, and the

whistleblower will not be eligible for an award, even if the

whistleblower's response is not compelled by subpoena or other

applicable law. For purposes of this paragraph (o), the whistleblower

will be considered to have received a request, inquiry or demand if

documents or information from the whistleblower is within the scope of

a request, inquiry, or demand that the whistleblower's employer

receives, unless, after receiving the documents or information from the

whistleblower, the whistleblower's employer fails to provide the

whistleblower's documents or information to the requesting authority in

a timely manner.

(2) In addition, the whistleblower's submission will not be

considered voluntary if the whistleblower is under a pre-existing legal

or contractual duty to report the violations that are the subject of

the whistleblower's original information to the Commission, Congress,

any other federal or state authority, the Department of Justice, a

registered entity, a registered futures association, or a self-

regulatory organization (as defined in section 3(a) of the Securities

Exchange Act of 1934 (15 U.S.C. 78c(a)), or a duty that arises out of a

judicial or administrative order.

* * * * *

0

3. Amend Sec. 165.3 as follows:

0

a. Remove the introductory text; and

0

b. Revise paragraphs (a) introductory text and (a)(1).

The revisions 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 http://www.cftc.gov, or the Commission's Whistleblower Program Web site at

www.whistleblower.gov; or

* * * * *

0

4. In Sec. 165.4, revise paragraphs (a) introductory text and (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 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

[[Page 24498]]

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 in paragraph (a)(2) of this

section; 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 (as defined in section

3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)); 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. In Sec. 165.6, revise paragraph (a)(1) to read as follows:

Sec. 165.6 Whistleblowers ineligible for an award.

(a) * * *

(1) To any whistleblower who is, or was at the time the

whistleblower acquired the original information submitted to the

Commission, a member, officer, or employee of: the Commission; 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 (as defined in section 3(a) of the Securities Exchange Act

of 1934 (15 U.S.C. 78c(a)); or a law enforcement organization;

* * * * *

0

7. 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 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

https://www.cftc.gov or the Commission's Whistleblower Program Web site

at https://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

Action 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

[[Page 24499]]

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

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 30 days from the date of the written notice to

respond and to correct the identified deficiencies. If the claimant

does not respond in 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 paragraph (e). 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 paragraph (a) of this section,

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 this

paragraph (g), 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

[[Page 24500]]

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 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

8. In Sec. 165.9, revise the introductory text 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

9. Amend Sec. 165.10 as follows:

0

a. Revise the section heading;

0

b. Remove the word ``and'' at the end of paragraph (a)(6);

0

c. Remove the period at the end of paragraph (a)(7) and add a semicolon

in its place;

0

d. Add paragraphs (a)(8) and (9); and

0

e. Revise paragraph (b).

The revisions and additions read as follows:

Sec. 165.10 Contents of record for award determination.

(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) The rules in this part do not entitle a claimant 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

10. 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 (as defined in section 3(a) of the Securities

Exchange Act of 1934 (15 U.S.C. 78c(a));

(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

11. In Sec. 165.12, revise paragraph (c) to read as follows:

Sec. 165.12 Payment of awards from the Fund, financing of customer

education initiatives, and deposits and credits to the Fund.

* * * * *

(c) Office of Customer Education and Outreach. The Commission shall

undertake and maintain customer education initiatives through its

Office of Customer Education and Outreach. The initiatives shall be

designed to help customers protect themselves against fraud or other

violations of the Commodity Exchange Act, or the rules or regulations

thereunder. The Commission shall fund the initiatives and may utilize

funds deposited into the Fund during any fiscal year in which the

beginning (October 1) balance of the Fund is greater than $10,000,000.

The Commission shall budget, on an annual basis, the amount used to

finance customer education initiatives, taking into consideration the

balance of the Fund.

0

12. 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 30 days after the Final

Order of the Commission is issued, provided that administrative

remedies have been exhausted.

[[Page 24501]]

(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

13. 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

14. 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 this part

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

15. 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 including where retaliation is in

response to a whistleblower providing information to the Commission

after reporting the information through internal whistleblower, legal

or compliance procedures.

(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

16. 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. A violation of this provision could be addressed by a

Commission enforcement action, or a lawsuit by an individual. Section

23(h)(1)(B) provides for 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) Private cause of action. (i) 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.

(ii) 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.

(iii) 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 2 years after the date on which the violation reported in

section 23(h)(1)(A) of the Commodity Exchange Act is committed.

(iv) Relief. Relief for an individual prevailing in an action

brought under section 23(h)(1)(B) of the Commodity Exchange Act shall

include--

(A) Reinstatement with the same seniority status that the

individual would have had, but for the discrimination;

(B) The amount of back pay otherwise owed to the individual, with

interest; and

(C) 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.

(2) 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.

0

17. 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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Submission Procedures

Questions concerning this form may be directed to Commodity Futures

Trading Commission, Whistleblower Office, Three Lafayette Centre, 1155

21st Street NW., Washington, DC 20581.

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.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

[[Page 24514]]

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

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.

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 (as defined in 3(a) of the Securities Exchange Act of 1934

(15 U.S.C. 78c(a)); 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 (as defined in 3(a) of the Securities

Exchange Act of 1934 (15 U.S.C. 78c(a)), 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: Privacy Notice and 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.

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

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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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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

[[Page 24520]]

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 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.

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.

[[Page 24521]]

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

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 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 May 22, 2017, 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, Acting Chairman Giancarlo and Commissioner Bowen

voted in the affirmative. No Commissioner voted in the negative.

[FR Doc. 2017-10801 Filed 5-26-17; 8:45 am]

BILLING CODE 6351-01-P

 

Last Updated: May 30, 2017