2016-20745B

Federal Register, Volume 81 Issue 168 (Tuesday, August 30, 2016)

[Federal Register Volume 81, Number 168 (Tuesday, August 30, 2016)]

[Proposed Rules]

[Pages 59551-59581]

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

[FR Doc No: 2016-20745]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 165

RIN 3038-AE50

Whistleblower Awards Process

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or

``CFTC'') is proposing to amend its regulations to enhance the process

for reviewing whistleblower claims and to make related changes to

clarify staff authority to administer the whistleblower program. The

Commission also is reinterpreting its anti-retaliation authority and

proposing appropriate rule amendments to implement that authority.

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

[[Page 59552]]

ADDRESSES: You may submit comments, identified by RIN 3038-AE50, by any

of the following methods:

CFTC Web site: http://comments.cftc.gov. Follow the

instructions for submitting comments through the Comments Online

process on the Web site.

Mail: Send to Christopher Kirkpatrick, Secretary of the

Commission, Commodity Futures Trading Commission, Three Lafayette

Centre, 1155 21st Street NW., Washington, DC 20581.

Hand Delivery/Courier: Same as Mail, above.

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Please submit your comments using only one of these methods.

All comments must be submitted in English, or if not, accompanied

by an English translation. Comments will be posted as received to

www.cftc.gov. You should submit only information that you wish to make

available publicly. If you wish the Commission to consider information

that is exempt from disclosure under the Freedom of Information Act

(``FOIA''), a petition for confidential treatment of the exempt

information may be submitted according to the procedure established in

Sec. 145.9 of the Commission's FOIA regulations (17 CFR 145.9).

The Commission reserves the right, but shall have no obligation, to

review, pre-screen, filter, redact, refuse, or remove any or all of

your submission from www.cftc.gov that it may deem to be inappropriate

for publication, such as obscene language. All submissions that have

been redacted or removed that contain comments on the merits of the

rulemaking will be retained in the public comment file and will be

considered as required under the Administrative Procedure Act and other

applicable laws, and may be accessible under the FOIA.

FOR FURTHER INFORMATION CONTACT: Anthony Hays, Counsel, (202) 418-5584,

[email protected], Commodity Futures Trading Commission, Three Lafayette

Centre, 1155 21st Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

In 2011, the Commission adopted its part 165 regulations, which

implement section 23 of the Commodity Exchange Act (``CEA''), 7 U.S.C.

26, by establishing a regulatory framework for the whistleblower

program. See Whistleblower Incentives and Protection, 76 FR 53172

(August 25, 2011). Part 165 provides for the payment of awards, subject

to certain limitations and conditions, to whistleblowers who

voluntarily provide the Commission with original information about a

violation of the CEA that leads to the successful enforcement of an

action brought by the Commission that results in monetary sanctions

exceeding $1,000,000 (``Covered Action''), or the successful

enforcement of a related action, as that term is defined in the rules,

or both.

The award amount must be between 10 and 30 percent of the amount of

monetary sanctions collected in a Covered Action or a related action

and is paid from the CFTC Customer Protection Fund. The Commission has

discretion regarding the amount of an award based on the significance

of the information, the degree of assistance provided by the

whistleblower, and other criteria.

Since the whistleblower program was established in 2011, the need

for certain improvements has become apparent. As explained further

below, this rulemaking proposal addresses that need with targeted

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

administer the whistleblower program. The Commission also is

reinterpreting its anti-retaliation authority under CEA section

23(h)(1) and proposing rule amendments to implement that authority.

Finally, the Commission is proposing to amend its rules to permit

whistleblowers to receive awards based on both Covered Actions and the

successful enforcement of related actions, as defined in the rules.

II. Proposed Amendments

The Commission proposes to make targeted changes to the process for

reviewing whistleblower award claims. In considering what changes to

make, the Commission has been informed by its experience since the

inception of its program, as well as the experience of the Securities

and Exchange Commission (``SEC'') in the administration of its

whistleblower program. In many ways, the SEC program is similar to the

Commission's. Both were created under the Dodd-Frank Act,\1\ although

the SEC also had prior experience in administering its insider trading

bounty program.\2\ The Commission believes that these proposed

amendments will, among other things, significantly improve the

administration of its review process.

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\1\ Section 922 of the Dodd-Frank Act amended the Securities

Exchange Act of 1934 by adding section 21F, which provides for the

SEC's whistleblower program. Similar to the CFTC program, the SEC

program authorizes monetary awards to eligible individuals who

voluntarily provide original information that leads to successful

SEC enforcement actions resulting in the imposition of monetary

sanctions over $1,000,000 and certain related successful actions.

The SEC can make awards ranging from 10 to 30 percent of the

monetary sanctions collected, which are paid from its Investor

Protection Fund.

Section 924(d) of the Dodd-Frank Act directed the SEC to

establish a separate office to administer the whistleblower program.

In February 2011, the SEC established the Office of the

Whistleblower within the Division of Enforcement to carry out this

mandate.

\2\ This SEC program was established in 1989 under Section

21A(e) of the Securities Exchange Act of 1934, which authorized the

SEC to award a bounty to a person who provided information leading

to the recovery of a civil penalty from an insider trader or related

parties. Section 21A(e) was enacted in 1988 as part of the Insider

Trading and Securities Fraud Enforcement Act of 1988 and was

repealed in 2010 by section 923(b) of the Dodd-Frank Act.

The SEC abolished its bounty program when it established its

whistleblower program under the Dodd-Frank Act.

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Eligibility Requirements for Consideration of an Award

Currently, Sec. 165.5 specifies the requirements for consideration

of an award by the Commission. The Commission proposes to revise this

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

Action, in a related action, or both. The Commission also proposes to

make clear that a claimant may be eligible for an award by providing

the Commission original information without being the original source

of the information. In addition, based on its experience in

administering the whistleblower program, the Commission proposes to

revise the definition of ``original source'' in Sec. 165.2(l) to

extend the timeframe from 120 to 180 days that a whistleblower has to

file a Form TCR pursuant to Sec. 165.3 after previously providing the

same information to Congress, any other federal or state authority, a

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

organization, or to any of the persons described in Sec. 165.2(g)(4)

and (5). Finally, in Sec. 165.5(c), the Commission is providing notice

that it has discretion to waive procedural rules based upon a showing

of extraordinary circumstances.

Award Claims Review Under Sec. 165.7

Currently, Sec. 165.7(d) provides for the review of whistleblower

award claims. The Commission proposes to revise this rule in order to

better define and specify each step in the award review process. Those

steps are spelled out in proposed new paragraphs (f) through (l), along

with new provisions regarding withdrawing award applications in

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proposed paragraph (d) and disposition of claims that do not relate to

Notices of Covered Actions (``NCAs'') or final judgments in related

actions in proposed new paragraph (e). These amendments would establish

a review process similar to that established under the SEC's

whistleblower rules. See 17 CFR 240.21F-10(d) through (h) (2014).

Specifically, the Commission has proposed to discontinue the

Whistleblower Award Determination Panel and replace it with a review

process handled by a Claims Review Staff designated by the Director of

the Division of Enforcement in consultation with the Executive

Director.\3\ The Commission expects that the Claims Review Staff will

be assisted by the Whistleblower Office staff within the Division of

Enforcement.\4\ The proposed rules also provide an additional means for

the submission of the required Form WB-APP, Application for Award for

Original Information Provided Pursuant to section 23 of the Commodity

Exchange Act, in Sec. 165.7(b)(1); explain the deadline for filing

Form WB-APP under different timing scenarios for final judgments in

covered judicial or administrative actions and related actions in

proposed Sec. 165.7(b)(3); and, make a conforming change by

renumbering prior paragraph (e) in Sec. 165.7 as paragraph (l).

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\3\ Designation and composition of the Claims Review Staff is

described in proposed Sec. 165.15(a)(2).

\4\ The Commission expects that the Whistleblower Office will

provide assistance to the Claims Review Staff in the form of

analysis of a claimant's eligibility and, if applicable, a

recommendation of a proposed award amount. Any such assistance

provided by the Whistleblower Office to the Claims Review Staff will

be prepared exclusively to assist the Claims Review Staff in

deciding a claim and will be deliberative process materials that

will not be available to claimants under Sec. 165.10 or part of the

record on appeal under Sec. 165.13. The proposed rules contain

clarifying changes to these rules.

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New proposed Sec. 165.7(e) addresses the Commission's experience

of receiving a number of Form WB-APPs that appear to be unrelated to

NCAs or final judgments in related actions as well as Form WB-APPs that

do not relate to a previously filed Form TCR. In order to reduce the

administrative burden on the Commission, the Commission proposes that

such facially ineligible claims primarily be handled by the

Whistleblower Office. The Whistleblower Office will notify the claimant

of the deficiencies in the Form WB-APP and provide an opportunity for

the claimant to correct the deficiencies or withdraw the claim before

the finalization of the denial of the claim. If the claimant does not

correct the deficiencies or withdraw the claim, the Whistleblower

Office will notify the Claims Review Staff of the proposed denial,

which will be called a Proposed Final Disposition, and any member of

the Claims Review Staff will have the opportunity to request review of

the proposed denial. If no member of the Claims Review Staff requests

review, the Proposed Final Disposition will become the final order of

the Commission. If a member of the Claims Review Staff requests review,

the Claims Review Staff will review the record for the denial and

either remand to the Whistleblower Office for further action or issue a

final order of the Commission, which consists of the proposed denial.

Additionally, proposed Sec. 165.7(d) would permit a claimant to

withdraw an award application at any point in the review process by

submitting a written request to the Whistleblower Office.\5\

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\5\ A claimant may choose to withdraw a claim for any reason

including that it was filed erroneously. An example would be if a

claimant intended to submit a tip via a Form TCR but mistakenly

submitted a claim via a WB-APP. The proposed addition to Sec.

165.7(d) would allow the claimant to withdraw the WB-APP and file a

Form TCR.

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Under proposed Sec. 165.7(f),\6\ the Claims Review Staff will

evaluate all timely award applications submitted on a Form WB-APP in

response to the NCA or a final judgment in a related action.\7\ During

the review process, the Whistleblower Office may require that claimants

provide additional information, explanation, or assistance as set forth

in Sec. 165.5(b)(3). For award claims on related actions, as described

in Sec. 165.7(f), the Whistleblower Office may request additional

information from the claimant to demonstrate that the claimant

voluntarily provided the governmental agency, regulatory authority, or

self-regulatory organization the same original information that led to

the Commission's successful enforcement action and the successful

enforcement of the related action. The Whistleblower Office may also

seek assistance and confirmation from the other agency in making this

determination.

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\6\ Proposed Sec. 165.7(f) is a revised version of current

Sec. 165.7(d).

\7\ The Whistleblower Office will not post any notices for

related actions. It will be the claimant's responsibility to track

the progress and final resolution of any related action and to file

a claim with the Commission under Sec. 165.7(b).

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Under proposed Sec. 165.7(g)(1), following the initial evaluation

by the Claims Review Staff, the Claims Review Staff will issue a

Preliminary Determination setting forth a preliminary assessment as to

whether the claim should be granted or denied and, if granted, setting

forth the proposed award percentage amount. The Whistleblower Office

will send a copy of the Preliminary Determination to the claimant. The

proposed amendments would allow a claimant the opportunity to contest

the Preliminary Determination.\8\

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\8\ If a claimant has no objection to the Preliminary

Determination, the claimant could inform the Whistleblower Office of

the decision not to contest within the 60 calendar days after

issuance of the Preliminary Determination. This situation might

occur when the Preliminary Determination recommends an award and the

claimant has no objection to the recommended amount of the award.

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Under new proposed Sec. 165.7(g)(2), the claimant could take any

of the following steps in response to a Preliminary Determination:

Within thirty (30) calendar days of the date of the

Preliminary Determination, the claimant may request that the

Whistleblower Office make available for the claimant's review the

materials that formed the basis of the Claim Review Staff's Preliminary

Determination.

Within sixty (60) calendar days of the date of the

Preliminary Determination, or if a request to review materials is made,

then within sixty (60) days of the Whistleblower Office making those

materials available for the claimant's review, a claimant may submit a

written response setting forth the grounds for the claimant's objection

to either the denial of an award or the proposed amount of an award.

The claimant may also include documentation or other evidentiary

support for the grounds advanced in any response, and request a meeting

with the Whistleblower Office. However, such meetings would not be

required. The Whistleblower Office may in its sole discretion decline

the request.

New proposed Sec. 165.7(h) makes clear that if a claimant fails to

submit a timely response under new Sec. 165.7(g), then a Preliminary

Determination denying an award becomes the Final Order of the

Commission and constitutes a failure to exhaust the claimant's

administrative remedies.\9\ Failure to exhaust administrative remedies

would prohibit the claimant from pursuing judicial review.

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\9\ Pursuant to Sec. 165.7(l), the Office of the Secretariat

will serve on the claimant a copy of the Final Order.

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If the claimant fails to contest a Preliminary Determination

recommending an award, the Preliminary Determination would be treated

as a Proposed Final Determination, which would make it subject to

Commission review under proposed Sec. 165.7(j).

New Sec. 165.7(i) describes the procedure in cases where a

claimant submits a timely response under new

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Sec. 165.7(g). In such cases, the Claims Review Staff would consider

the issues raised in the claimant's response, along with any supporting

documentation that the claimant provides, and prepare a Proposed Final

Determination.

Under new Sec. 165.7(j), when there is a Proposed Final

Determination, the Whistleblower Office will notify the Commission of

the Proposed Final Determination. Within thirty (30) days of that

notification, any Commissioner may request Commission review of the

Proposed Final Determination. If no Commissioner makes such a request,

the Proposed Final Determination will become the Commission's Final

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

review the record that the Claims Review Staff relied upon in reaching

its determination. On the basis of its review of that record, the

Commission will issue its Final Order, which the Office of the

Secretariat will then serve on the claimant. In reaching their

decisions, the Commission and Claims Review Staff will only consider

information in the record.

The Office of General Counsel will review both preliminary and

proposed final determinations prior to issuance, and no such

determination may be issued without the Office of General Counsel's

determination of legal sufficiency.

Under proposed Sec. 165.15(a)(2), the Enforcement Director, in

consultation with the Executive Director, will designate a minimum of

three and a maximum of five staff from the Division of Enforcement or

other Commission Offices or Divisions to serve on the Claims Review

Staff, either on a case-by-case basis or for fixed periods. At least

one person from outside the Division of Enforcement will be included on

the Claims Review Staff at all times. The Claims Review Staff would be

composed only of persons who have not had direct involvement with the

underlying enforcement action. Due to the Office of General Counsel's

role in the review process, the Commission believes it is appropriate

to exclude staff from that Office from serving as Claims Review Staff.

These proposed amendments would provide the public and claimants

with greater transparency in the award evaluation and review process.

They should also enhance the expeditious and fair administration of the

program.

Awards for Related Actions

For award claims on related actions, the Commission is proposing to

amend Sec. 165.11 to permit claimants who are eligible to receive an

award in a covered judicial or administrative action also to receive an

award based on the monetary sanctions that are collected from a final

judgment in a related action. The exception would be that the

Commission would not make an award to a claimant for a related action

if the claimant had been granted an award by the SEC for the same

action under the SEC's whistleblower program. This would prevent a

claimant from ``double dipping'' and receiving more than one award for

the same action. Similarly, if the SEC has previously denied an award

to a claimant in a related action, the claimant will be precluded from

relitigating any issues before the Commission that the SEC resolved

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

limitations on obtaining an award for both Covered Actions and final

judgments in related actions are similar to those imposed by the SEC in

its whistleblower program.

Pursuant to the definition of related action in Sec. 165.2(m), a

related action is based on the original information voluntarily

submitted by a whistleblower to the Commission that led to the

successful enforcement of a Commission action, and therefore, an action

may only become a ``related action'' after there is a successful

Commission action. Additional revisions are proposed to Sec. 165.7(b)

to clarify timing requirements for filing whistleblower award claims

regarding related actions. The proposed revisions also clarify that

except in the circumstances described in proposed Sec.

165.7(b)(3)(ii), award claims for a related action shall be filed

within 90 days after an action meets the definition of related action

if the order in the related action was issued prior to the successful

enforcement of a Commission action. The proposed revisions also clarify

that award claims for a related action and in response to a Notice of

Covered Action may be submitted on the same Form WB-APP in certain

circumstances.

Contents of Record for Award Determinations

Consistent with the Commission proposing to amend Sec. 165.11 to

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

judicial or administrative action also to receive an award based on the

monetary sanctions that are collected from a final judgment in a

related action, the Commission proposes to amend Sec. 165.10(a) to

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

for award claims. For related actions, any documents or materials,

including sworn declarations from third parties, that are received or

obtained by the Whistleblower Office to assist the Commission in

resolving the claimant's award application, including information

relating to the claimant's eligibility, may be included in the record.

In addition, any information provided to the Commission by the entity

bringing the related action that has been authorized by the entity for

sharing with the claimant may be part of the record. Neither of these

forms of information may be included in the contents of the record if

the entity did not authorize the Commission to share the information

with the claimant. The Commission also proposes revisions to Sec. Sec.

165.10(b) and 165.13(b) to clarify that the record on appeal shall not

include any pre-decisional or internal deliberative process materials

that are prepared to assist the Commission or Claims Review Staff in

deciding a claim.

Authority To Administer the Program

Currently, Sec. 165.15 provides for delegations of authority to

the staff. Given the proposed changes to the claims review process, the

Commission proposes to directly assign responsibilities for

administering the program by rule rather than by delegation. Since

2013, the Whistleblower Office (``WBO'') has been located within the

Division of Enforcement. The Commission believes that it is appropriate

to assign overall responsibility for administering the whistleblower

program to the Director of the Division of Enforcement. The Commission

notes that this approach is also consistent with the SEC's practice.

The Commission also proposes to directly assign responsibility to

Claims Review Staff for the issuance of Preliminary Determinations and

Proposed Final Determinations, and issuance of Proposed Final

Dispositions to the WBO. In this connection, the Commission proposes,

again consistent with the SEC's practice, that no member of the Claims

Review Staff can have had any direct involvement in the underlying

enforcement case.

Whistleblower Identifying Information

To implement the confidentiality protection for whistleblower

identifying information under CEA section 23(h)(2), the Commission

issued Sec. 165.4. The Commission is proposing to authorize the

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

disclose whistleblower identifying information as permitted by CEA

section 23(h)(2)(C) and Sec. 165.4(a)(2) and (3). Under Sec.

165.15(a)(3), the Commission expects the Director of Enforcement to

exercise this discretion to release such sensitive information in

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a manner consistent with, and when deemed necessary or appropriate to

accomplish, the customer protection and law enforcement goals of the

whistleblower program.\10\ The Commission believes that this delegation

of authority will increase investor protection by facilitating

administration of the whistleblower program as well as investigations

and actions by those agencies and authorities that are eligible to

receive whistleblower identifying information under CEA section

23(h)(2)(C) and Sec. 165.4. Any agency or authority that receives

whistleblower identifying information is bound by the same

confidentiality requirements as those applicable to the Commission

under CEA section 23(h)(2)(A) and such release of information does not

change the confidential nature of the information. Certain information

provided to other agencies or authorities is also protected from

disclosure under CEA section 8.

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\10\ Whistleblower Incentives and Protection, 76 FR at 53184

(Aug. 25, 2011) (declining to require whistleblower notification).

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Retaliation Against Whistleblowers

During its 2011 rulemaking, the Commission was asked to clarify its

enforcement authority over retaliation against whistleblowers. Citing

the private right of action for whistleblowers created by CEA section

23(h)(1)(B), the Commission stated that it lacked ``the statutory

authority to conclude that any entity that retaliates against a

whistleblower'' could be subject to enforcement action ``as a separate

and independent violation of the CEA.'' Whistleblower Incentives and

Protection, 76 FR at 53182 (August 25, 2011). The Commission stated

that CEA section 23(h)(1)(B)(i) ``clearly states only an individual who

alleges retaliation in violation of being a whistleblower may bring

such a cause of action.'' Id.

Questions have been raised, however, about the inconsistency

between this interpretation and the SEC's interpretation of its own

authority to take enforcement actions against violators of the anti-

retaliation provisions of the SEC's whistleblower protection rules.

Accordingly, the Commission is revisiting this issue. The Commission

proposes to set aside its 2011 interpretation because it fails to

adequately take into full consideration the statutory context of CEA

section 23 and other CEA provisions. The 2011 interpretation cannot be

squared with CEA section 23(h)(1)(A), which establishes that

retaliation is in fact a separate violation of the CEA, nor with the

Commission's broad rulemaking authority under CEA section 23(i). The

2011 interpretation also overlooks the Commission's general authority

to prosecute violations of any CEA provisions as well as violations of

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

and 6c. Each of these CEA sections empowers the Commission to take

action for the violation of ``any'' CEA provision or rule or regulation

thereunder. The Commission notes that while CEA section 23(h)(1)

provides for enforcement of the anti-retaliation provisions through a

private cause of action, nothing in that section purports to limit the

Commission's general enforcement authority or suggests that such

private action is exclusive. The SEC's statutory authority in this area

is nearly identical to the Commission's, and that agency took a

different path in 2011. When commenters asked the SEC to clarify

protections against retaliation, it did so by adopting a rule that made

any rules promulgated under the protections against retaliation

provisions enforceable in an action or proceeding brought by the

SEC.\11\ Upon reconsideration of its statutory authority on this

important issue, and noting that harmonization between the SEC's and

the Commission's Whistleblower programs would be beneficial to the

public by making the consequences of illegal retaliation more uniform,

the Commission has decided to join the SEC on that path.

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\11\ See SEC Rule 21F-2(b) (17 CFR 240.21F-2(b)).

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By today's action, the Commission is taking a necessary step to end

the incongruous situation where whistleblowers enjoy protection from

retaliation through SEC enforcement action under the securities laws,

but no such protection through Commission enforcement action under the

CEA. In 1982, Congress granted customers a private right of action

under CEA section 22 without diminishing or undermining the

Commission's enforcement authority under the CEA. So too here, the

Commission believes that Congress intended the Commission to fully

exercise its enforcement authority with respect to CEA section

23(h)(1)(A) and to fully exercise its rulemaking authority under CEA

section 23(i) in addition to creating a private right of action to

protect whistleblowers.

The Commission's proposal also removes any question about a gap in

statutory whistleblower protection under the securities laws and the

CEA. Consistent with the SEC's approach in its rule, the Commission

proposes to add new Sec. 165.20(b) to implement its enforcement

authority under CEA section 23 and 17 CFR part 165. To complement the

prohibition found in CEA section 23(h)(1)(A), and as consistent with

the SEC's whistleblower rules, the Commission proposes to add a new

Sec. 165.19(b) to prohibit the enforcement of confidentiality and pre-

dispute arbitration clauses respecting actions by potential

whistleblowers in any pre-employment, employment or post-employment

agreements,\12\ and a new Sec. 165.20(a) and (c) to prohibit employers

from threatening or harassing or retaliating against individuals who

participate in the Commission's whistleblower program, irrespective of

whether those individuals qualify for an award,\13\ or report

internally before providing the Commission with information.\14\ The

Commission believes that these proposed rules are appropriate to

implement CEA section 23(h)(1) and are fully consistent with the

purposes of that provision as required by CEA section 23(i).

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\12\ The Commission is aware of the SEC's enforcement action

against the use of confidentiality agreements that might interrupt

the free flow of communications from whistleblowers to enforcement

authorities. See In the Matter of KBR Inc., SEC Admin. Proc. No. 3-

16446 (April 1, 2015) (barring KBR from requiring its employees to

have internal clearance before communicating with the SEC on

whistleblower matters).

\13\ The concept of a whistleblower being protected from

retaliation by an employer irrespective of whether the whistleblower

qualified for an award is expressed in the definition of

whistleblower in Sec. 165.2(p)(2). The Commission is providing

whistleblowers additional protections in new Sec. 165.20(a) and

(b), and adding Sec. 165.20(c) for convenience and clarity.

\14\ The Commission is aware of the SEC's recent Interpretation

of the SEC's Whistleblower Rules Under Section 21F of the Securities

Exchange Act of 1934, Release No. 34-75592 (August 4, 2015), in

which the SEC similarly clarified that anti-retaliation protections

extended to individuals who reported internally prior to providing

the SEC with information and to individuals who ultimately were not

eligible for an award.

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Conforming and Technical Amendments

To conform to the proposed changes to Sec. Sec. 165.7 and 165.15,

the Commission proposes to strike the reference to ``or its delegate''

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

The Commission proposes to amend Sec. 165.2(i)(2) concerning the

definition of information that led to a successful enforcement action

because it contains an erroneous cross-reference. The reference is

intended to be to Sec. 165.2(l) regarding the definition of original

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

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

Sec. 165.3 concerning the procedures for

[[Page 59556]]

submitting original information because it contains an erroneous

reference to a two-step process. This change makes the language conform

to the process previously adopted.\15\

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\15\ Whistleblower Incentives and Protection, 76 FR at 53183

(Aug. 25, 2011) (explaining that the rule was adopted with a more

streamlined process and one less form than the original proposal).

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The Commission proposes to amend Sec. 165.13(b) concerning appeals

because it contains an erroneous cross-reference. The reference

intended is to Sec. 165.10 regarding contents of the record, rather

than Sec. 165.9 regarding criteria for determining award amounts.

The Commission proposes to move and include updated Form TCR and

Form WB-APP to a new appendix B to part 165. The updated Form TCR and

Form WB-APP include revisions that previously received information

collection requirement approval by the Office of Management and

Budget.\16\ The Commission also proposes to revise a question in the

Form TCR, question E.8, seeking consent from whistleblowers to share

their information with other authorities. The revisions include

language that is consistent with the confidentiality provisions of

Sec. 165.4. The Commission also proposes revisions to the submission

instructions portions of the forms to conform to the proposed revisions

in the part 165 rules.

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\16\ The Form TCR and Form WB-APP OMB Control Number is 3038-

0082. Both forms last received OMB approval on April 8, 2015, with

an expiration date of April 30, 2018.

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Finally, the Commission proposes to make a minor change in the

wording of current Sec. 165.7(e), in addition to designating current

paragraph (e) as new paragraph (l).

III. Request for Comment

The Commission requests comment on all aspects of the proposed rule

amendments.

IV. Related Matters

A. Regulatory Flexibility Analysis

The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612,

requires that agencies consider whether the rules they propose will

have a significant economic impact on a substantial number of small

entities and, if so, provide a regulatory flexibility analysis

respecting the impact. RFA section 603(a), 5 U.S.C. 603(a), requires

the Commission to undertake an initial regulatory flexibility analysis

of a proposed rule on small entities unless the Chairman certifies that

the rule, if adopted, would not have a significant economic impact on a

substantial number of small entities. 5 U.S.C. 605(b).

Only individuals are eligible for participation in the Commission's

whistleblower program. The proposed amendments would apply only to an

individual, or individuals acting jointly, who provide information

relating to the violation of the CEA or Commission regulations. By

definition, companies and other entities cannot be whistleblowers.

Consequently, the persons that would be subject to the proposed rule

amendments are not ``small entities'' under the RFA.

Accordingly, the Chairman, on behalf of the Commission, hereby

certifies under 5 U.S.C. 605(b) that the proposed rules would not have

a significant economic impact on a substantial number of small

entities.

B. Paperwork Reduction Act

The Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501-3521, imposes

certain requirements on federal agencies (including the Commission) in

connection with their conducting or sponsoring any collection of

information as defined by the PRA. The Commission believes that the

proposed amendments, if adopted, would not impose new recordkeeping or

information collection requirements that require approval by the Office

of Management and Budget under the PRA.

Accordingly, the requirements of the PRA do not apply to this

rulemaking.

C. Cost-Benefit Considerations

CEA section 15(a) requires the Commission to consider the costs and

benefits of its actions before promulgating a regulation under the CEA

or issuing certain orders.\17\ Section 15(a) further specifies that the

costs and benefits shall be evaluated in light of the following five

factors: (1) Protection of market participants and the public; (2)

efficiency, competitiveness, and financial integrity of futures

markets; (3) price discovery; (4) sound risk management practices; and

(5) other public interest considerations. The Commission considers the

costs and benefits resulting from its discretionary determinations with

respect to the section 15(a) factors. The Commission may in its

discretion give greater weight to any one of the five enumerated areas

and could in its discretion determine that, notwithstanding its costs,

a particular rule is necessary or appropriate to protect the public

interest or to effectuate any of the provisions or accomplish any of

the purposes of the CEA.

---------------------------------------------------------------------------

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

---------------------------------------------------------------------------

Since the basic framework of part 165 remains substantially

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

proposed rule amendments and the status quo baseline (the current

rule), to which the proposal's costs and benefits are compared, are

similar, but with certain additional benefits attendant to these

amendments.\18\ The Sec. 165.7 amendments would add transparency to

the Commission's process of deciding whistleblower award claims and

would harmonize the Commission's rules with those of the SEC. The

proposed amendments clarify each step of the process that a

whistleblower must follow when making an award claim. The Commission

believes that such transparency and harmonization would increase the

benefits of the part 165 rules relative to the benefits of the current

rules because potential whistleblowers would have greater clarity about

the claims and awards process and greater assurance that retaliation

would not be tolerated. This clarity and protection should encourage

whistleblowers to step forward. Thus, the proposed rules should enhance

protection of market participants and the public as well as market

integrity without materially adding to the costs attendant to the

current regime.

---------------------------------------------------------------------------

\18\ The Commission preliminarily believes that there is not

likely to be any material difference between the proposed amendments

and the status quo baseline in terms of cost.

---------------------------------------------------------------------------

The Sec. 165.4 and 165.15 amendments assign to the Director of the

Division of Enforcement the authority to administer the whistleblower

program and release whistleblower identifying information. Since these

proposed amendments relate solely to the Commission's allocation of

authority among its staff, the Commission anticipates that these

changes would impose no material costs on market participants or the

public. At the same time, the Commission believes the protection of

market participants and the public would be enhanced through a more

effective and efficient deployment of staff resources.

The Sec. 165.19 and 165.20 amendments clarify the anti-retaliation

protections available under the Commission's whistleblower program in

light of the Commission's reconsideration of its authority under CEA

section 23(h)(1). These proposed changes remove any gap in enforcement

authority between the Commission and the SEC with regard to

whistleblower protections against retaliation. The Commission

preliminarily believes that these

[[Page 59557]]

changes would impose no material costs on market participants or the

public. The proposed rules do not impose any new regulatory burden. To

comply with the rules, market participants must refrain from engaging

in conduct that is already subject to private rights of action, or

including certain provisions waiving rights and remedies or requiring

arbitration of disputes in employment agreements. The Commission

further believes that the proposed rules might have a positive effect

on efficiency, competitiveness, and financial integrity of futures

markets through improving detection and remediation of potential

violations of the CEA and Commission regulations. For instance, market

participants may be further deterred from engaging in violations of the

CEA and Commission rules because the likelihood of being caught has

increased due to improvements to the whistleblower program that

encourage more whistleblowers to provide information to the Commission.

The Commission preliminarily believes that price discovery and

sound risk management practices would not be materially affected by

this proposal. Also, the Commission has not identified any other

relevant public interest considerations.

The Commission invites public comment on its cost-benefit

considerations. Commenters are also invited to submit any data or other

information that they may have quantifying or qualifying the costs and

benefits of the proposed rules.

D. Antitrust Considerations

CEA section 15(b) requires the Commission to consider the public

interests protected by the antitrust laws and to take actions involving

the least anti-competitive means of achieving the objectives of the

CEA. The Commission preliminarily believes that the proposed rules may

have a positive effect on competition through improving detection,

deterrence, and remediation of potential violations of the CEA and

Commission regulations.

The Commission invites comment on any antitrust considerations

arising from the proposed amendments.

E. Small Business Regulatory Enforcement Fairness Act

Under the Small Business Regulatory Enforcement Fairness Act of

1996 (``SBREFA''), Public Law 104-121 (March 29, 1996), as amended by

Public Law 110-28 (May 25, 2007),\19\ the Commission solicits data to

determine whether a proposed rule constitutes a ``major'' rule. Under

SBREFA, a rule is considered ``major'' where, if adopted, it results or

is likely to result in:

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\19\ The provisions governing congressional review of agency

rulemaking are set forth in SBREFA subtitle E, which is codified at

5 U.S.C. 801-808.

---------------------------------------------------------------------------

An annual effect on the economy of $100 million or more

(either in the form of an increase or a decrease);

A major increase in costs or prices for consumers or

individual industries; or

Significant adverse effects on competition, investment or

innovation.

If a rule is ``major,'' its effectiveness will generally be delayed for

60 days pending Congressional review.

Commenters are invited to provide empirical data on: the potential

annual effect on the economy; any increase in costs or prices for

consumers or individual industries; and any potential effect on

competition, investment or innovation.

List of Subjects in 17 CFR Part 165

Whistleblowing.

For the reasons stated in the preamble, the Commodity Futures

Trading Commission proposes to amend 17 CFR part 165 as follows:

PART 165--WHISTLEBLOWER RULES

0

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

Authority: 7 U.S.C. 2, 5, 12a(5) and 26, as amended by Title VII

of the Dodd-Frank Wall Street Reform and Consumer Protection Act,

Pub. L. 111-203, 124 Stat. 1376 (July 16, 2010).

0

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

follows:

Sec. 165.2 Definitions.

* * * * *

(i) * * *

(2) The whistleblower gave the Commission original information

about conduct that was already under examination or investigation by

the Commission, the Congress, any other authority of the federal

government, a state Attorney General or securities regulatory

authority, any self-regulatory organization or futures association, or

the Public Company Accounting Oversight Board (except in cases where

the whistleblower was an original source of this information as defined

in paragraph (l) of this section), and the whistleblower's submission

significantly contributed to the success of the action.

* * * * *

(l) * * *

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

the whistleblower provides information to Congress, any other federal

or state authority, a registered entity, a registered futures

association, a self-regulatory organization, or to any of any of the

persons described in paragraphs (g)(4) and (5) of this section, and the

whistleblower, within 180 days, makes a submission to the Commission

pursuant to Sec. 165.3, as the whistleblower must do in order for the

whistleblower to be eligible to be considered for an award, then, for

purposes of evaluating the whistleblower's claim to an award under

Sec. 165.7, the Commission will consider that the whistleblower

provided original information as of the date of the whistleblower's

original disclosure, report, or submission to one of these other

authorities or persons. The whistleblower must establish the

whistleblower's status as the original source of such information, as

well as the effective date of any prior disclosure, report, or

submission, to the Commission's satisfaction. The Commission may seek

assistance and confirmation from the other authority or person in

making this determination.

* * * * *

0

3. Amend Sec. 165.3 as follows:

0

a. Remove the undesignated introductory paragraph; and

0

b. Revise the introductory text of paragraph (a), and paragraph (a)(1).

The revisions to read as follows:

Sec. 165.3 Procedures for submitting original information.

(a) A whistleblower will need to submit the whistleblower's

information to the Commission. A whistleblower may submit the

whistleblower's information:

(1) By completing and submitting a Form TCR online and submitting

it electronically through the Commission's Web site at www.cftc.gov, or

the Commission's Whistleblower Program Web site at

www.whistleblower.gov; or

* * * * *

0

4. In Sec. 165.4, revise the introductory text of paragraph (a), and

paragraphs (a)(1) and (2) to read as follows:

Sec. 165.4 Confidentiality.

(a) In general. Section 23(h)(2) of the Commodity Exchange Act

requires that the Commission not disclose information that could

reasonably be expected to reveal the identity of a whistleblower,

except that the Commission may disclose such information in the

following

[[Page 59558]]

circumstances, in accordance with the Privacy Act of 1974 (5 U.S.C.

552a):

(1) When disclosure is required to a defendant or respondent in

connection with a public proceeding that the Commission institutes or

in another public proceeding that is filed by an authority to which the

Commission provides the information, as described below; or

(2) When the Commission determines that it is necessary to

accomplish the purposes of the Commodity Exchange Act and to protect

customers, it may provide whistleblower information, without the loss

of its status as confidential whistleblower information in the hands of

the Commission, to: the Department of Justice; an appropriate

department or agency of the Federal Government, acting within the scope

of its jurisdiction; a registered entity, registered futures

association, or a self-regulatory organization; a State attorney

general in connection with a criminal investigation; any appropriate

State department or agency, acting within the scope of its

jurisdiction; or a foreign futures authority; and, as set forth in

section 23(h)(2)(C) of the Commodity Exchange Act, each such entity is

required to maintain the information as confidential in accordance with

the requirements of section 23(h)(2)(A) of the Commodity Exchange Act.

* * * * *

0

5. Revise Sec. 165.5 to read as follows:

Sec. 165.5 Requirements for consideration of an award.

(a) Subject to the eligibility requirements described in this part,

the Commission will pay an award to one or more whistleblowers who:

(1) Provide a voluntary submission to the Commission;

(2) That contains original information; and

(3) That leads to the successful resolution of a covered judicial

or administrative action or successful enforcement of a related action

or both; and

(b) In order to be eligible, the whistleblower must:

(1) Have voluntarily provided the Commission original information

in the form and manner that the Commission requires in Sec. 165.3;

(2) Have submitted a claim in response to a Notice of Covered

Action or a final judgment in a related action or both;

(3) Provide the Commission, upon its staff's request, certain

additional information, including:

(i) Explanations and other assistance, in the manner and form that

staff may request, in order that the staff may evaluate the use of the

information submitted related to the whistleblower's application for an

award;

(ii) All additional information in the whistleblower's possession

that is related to the subject matter of the whistleblower's submission

related to the whistleblower's application for an award; and

(iii) Testimony or other evidence acceptable to the staff relating

to the whistleblower's eligibility for an award; and

(4) If requested by the Whistleblower Office, enter into a

confidentiality agreement in a form acceptable to the Whistleblower

Office, including a provision that a violation of the confidentiality

agreement may lead to the whistleblower's ineligibility to receive an

award.

(c) The Commission may, in its sole discretion, waive any

procedural requirements based upon a showing of extraordinary

circumstances.

0

6. Amend Sec. 165.7 as follows:

0

a. Revise the section heading;

0

b. Revise paragraphs (b), (d), and (e); and

0

c. Add paragraphs (f) through (l).

The revisions and additions to read as follows:

Sec. 165.7 Procedures for award applications in Commission actions

and related actions, and Commission award determinations.

* * * * *

(b)(1) To file a claim for a whistleblower award, the whistleblower

must file Form WB-APP, Application for Award for Original Information

Provided Pursuant to section 23 of the Commodity Exchange Act. The

whistleblower must sign this form as the claimant and submit it to the

Commission by mail or fax to Commodity Futures Trading Commission,

Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, Fax

(202) 418-5975, or by completing and submitting the Form WB-APP online

and submitting it electronically through the Commission's Web site at

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

at www.whistleblower.gov.

(2) The Form WB-APP, including any attachments, must be received by

the Commission within 90 calendar days of the date of the Notice of

Covered Action or 90 calendar days following the date of a final

judgment in a related action (or if the final judgment in a related

action was issued prior to the action meeting the definition of related

action, within 90 calendar days following the date the action satisfied

the definition of related action, except in the circumstances described

in paragraph (b)(3)(ii) of this section). One Form WB-APP may be filed

in response to both a Notice of Covered Action and final judgment in a

related action if the relevant time periods are applicable.

(3) If a covered judicial or administrative action and related

actions have different final judgment dates or if there is no covered

judicial or administrative action connected to a related action, a

claimant, who wishes to file a claim for an award in both a covered

judicial or administrative action and a related action, or in a related

action that does not have a connected covered judicial or

administrative action, must follow one of the following procedures

depending on that claimant's particular situation.

(i) If a final judgment imposing monetary sanctions in a related

action has not been entered at the time the claimant submits a claim

for an award in connection with a covered judicial or administrative

action, the claimant must submit the claim for the related action on

Form WB-APP within ninety (90) calendar days following the date of

issuance of a final judgment in the related action.

(ii) If a final judgment in a related action has been entered and a

Notice of Covered Action for a related covered judicial or

administrative action has not been published, a claimant for an award

in both the covered judicial or administrative action and related

action may submit the claims for both the related action and the

covered judicial or administrative action within ninety (90) days of

the date of the Notice of Covered Action. The claims may be submitted

on the same Form WB-APP.

(iii) If there is a final judgment in a related action that relates

to a judicial or administrative action brought by the Commission under

the Commodity Exchange Act that is not a covered judicial or

administrative action, and therefore there is no Notice of Covered

Action, a claimant for an award in connection with the related action

must submit the claim in connection with the related action on Form WB-

APP within ninety (90) calendar days following either:

(A) The date of issuance of a final judgment in the related action,

if that date is after the date of issuance of the final judgment in the

related Commission judicial or administrative action; or

(B) The date of issuance of the final judgment in the related

Commission judicial or administrative action, i.e., the date the

related action becomes a related action, if the date of issuance of the

final judgment in the related action precedes the final judgment in the

[[Page 59559]]

related Commission judicial or administrative action.

* * * * *

(d) A claimant may withdraw a Form WB-APP by submitting a written

request to the Whistleblower Office at any time during the review

process.

(e)(1) The Whistleblower Office may issue a Proposed Final

Disposition for award applications that do not relate to a Notice of

Covered Action, a final judgment in a related action, or a previously

filed Form TCR without presentation of the award claim to the staff

designated by the Director of the Division of Enforcement under Sec.

165.15(a)(2) (``Claims Review Staff''). In such instances, the

Whistleblower Office will inform the award claimant in writing that the

claim does not relate to a Notice of Covered Action, a final judgment

in a related action, or a previously filed Form TCR and will be

rejected unless the claimant provides additional information. The

claimant will have thirty (30) days from the date of the written notice

to respond and to correct the identified deficiencies. If the claimant

does not respond in thirty (30) days or if the response does not

include information showing that the WB-APP relates to a Notice of

Covered Action, a final judgment in a related action, or a previously

filed Form TCR the Whistleblower Office will issue a Proposed Final

Disposition. The claimant's failure to submit a timely response to the

written notice from the Whistleblower Office will constitute a failure

to exhaust administrative remedies, and the claimant will be prohibited

from pursuing an appeal under Sec. 165.13.

(2) The Whistleblower Office will notify the Claims Review Staff of

any Proposed Final Disposition under this subsection. Within thirty

(30) calendar days thereafter, any member of the Claims Review Staff

may request that the Proposed Final Disposition be reviewed by the

Claims Review Staff. If no member of the Claims Review Staff requests

such a review within the 30-day period, then the Proposed Final

Disposition will become the Final Order of the Commission. In the event

that a member of the Claims Review Staff requests a review, the Claims

Review Staff will review the record that the Whistleblower Office

relied upon in making its determination and either remand to the

Whistleblower Office for further action or issue a Final Order of the

Commission, which could consist of the Proposed Final Disposition.

(f)(1) In connection with each individual covered judicial or

administrative action or final judgment in a related action, for which

an award application is submitted, once the time for filing any appeals

of the covered judicial or administrative action or the final judgment

in the related action has expired (or, where an appeal is filed of the

covered judicial or administrative action, or the final judgment in a

related action, as applicable, and concluded), the Claims Review Staff

designated under Sec. 165.15(a)(2) will evaluate all timely

whistleblower award claims submitted on Form WB-APP in response to a

Notice of Covered Action, referenced in Sec. 165.7(a), or final

judgment in a related action in accordance with the criteria set forth

in this part.

(2) The Whistleblower Office may require that the claimant provide

additional information relating to the claimant's eligibility for an

award or satisfaction of any of the conditions for an award, as set

forth in Sec. 165.5(b)(2). The Whistleblower Office may also request

additional information from the claimant in connection with the claim

for an award in a related action to demonstrate that the claimant

directly (or through the Commission) voluntarily provided the

governmental agency, regulatory authority or self-regulatory

organization the original information that led to the Commission's

successful covered action, and that the information provided by the

claimant led to the successful enforcement of the related action. The

Whistleblower Office may also, in its discretion, seek assistance and

confirmation from the other agency in making this determination.

(g)(1) Following Claims Review Staff evaluation, the Claims Review

Staff will issue a preliminary determination setting forth a

preliminary assessment as to whether the claim should be granted or

denied and, if granted, setting forth the proposed award percentage

amount. The Whistleblower Office will send a copy of the preliminary

determination to the claimant.

(2) The claimant may contest the preliminary determination made by

the Claims Review Staff by submitting a written response to the

Whistleblower Office setting forth the grounds for the claimant's

objection to either the denial of an award or the proposed amount of an

award. The response must be in the form and manner that the

Whistleblower Office shall require. The claimant may also include

documentation or other evidentiary support for the grounds advanced in

the claimant's response. The claimant may also request a meeting with

the Whistleblower Office within the timeframes provided in paragraph

(g) of this section, however such meetings are not required, and the

Whistleblower Office may in its sole discretion deny the request.

(i) Before determining whether to contest a preliminary

determination, the claimant may, within thirty (30) days of the date of

the preliminary determination, request that the Whistleblower Office

make available for the claimant's review the materials from among those

set forth in Sec. 165.10 that formed the basis of the Claims Review

Staff's preliminary determination.

(ii) If the claimant decides to contest the preliminary

determination, the claimant must submit the claimant's written response

and supporting materials setting forth the grounds for the claimant's

objection to either the denial of an award or the proposed amount of an

award within sixty (60) calendar days of the date of the preliminary

determination, or if a request to review materials used to make a

Preliminary Determination is made pursuant to paragraph (g)(2)(i) of

this section, then within sixty (60) calendar days of the Whistleblower

Office making those materials available for the claimant's review. The

claimant also may request a meeting with the Whistleblower Office

within those same sixty (60) calendar days. However, such meetings are

not required and the Whistleblower Office may in its sole discretion

decline the request.

(h) If the claimant fails to submit a timely response pursuant to

paragraph (g) of this section, then the preliminary determination will

become the Final Order of the Commission (except where the preliminary

determination recommended an award, in which case the preliminary

determination will be deemed a proposed final determination for

purposes of paragraph (j) of this section). The claimant's failure to

submit a timely response contesting a preliminary determination will

constitute a failure to exhaust administrative remedies, and the

claimant will be prohibited from pursuing an appeal under Sec. 165.13.

(i) If the claimant submits a timely response under paragraph (g)

of this section, then the Claims Review Staff will consider the issues

and grounds advanced in the claimant's response, along with any

supporting documentation the claimant provided, and will make its

proposed final determination.

(j) The Whistleblower Office will notify the Commission of each

proposed final determination. Within thirty (30) calendar days

thereafter, any Commissioner may request that the proposed final

determination be reviewed by the Commission. If no

[[Page 59560]]

Commissioner requests such a review within the 30-day period, then the

proposed final determination will become the Final Order of the

Commission. In the event a Commissioner requests a review, the

Commission will review the record that the staff relied upon in making

its determinations, including the claimant's submissions to the

Whistleblower Office, and issue its Final Order.

(k) A preliminary determination, proposed final disposition, or a

proposed final determination may be issued only after a review for

legal sufficiency by the Office of the General Counsel.

(l) The Office of the Secretariat will serve the claimant with the

Final Order of the Commission.

0

7. In Sec. 165.9, revise the introductory paragraph to read as

follows:

Sec. 165.9 Criteria for determining amount of award.

The determination of the amount of an award shall be in the

discretion of the Commission. This discretion shall be exercised as

prescribed by Sec. 165.7.

* * * * *

0

8. Amend Sec. 165.10 as follows:

0

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

0

b. Revise paragraph (b).

The additions and revision to read as follows:

Sec. 165.10 Contents of record for award determinations.

(a) * * *

(8) With respect to an award claim involving a related action, any

statements or other information that an entity provides or identifies

in connection with an award determination, provided the entity has

authorized the Commission to share the information with the claimant.

(Neither the Commission nor the Claims Review Staff may rely upon

information that the entity has not authorized the Commission to share

with the applicant); and

(9) Any other documents or materials including sworn declarations

from third-parties that are received or obtained by the Whistleblower

Office to assist the Commission resolve the applicant's award

application, including information related to the claimant's

eligibility. (Neither the Commission nor the Claims Review Staff may

rely upon information that a third party has not authorized the

Commission to share with the claimant).

(b) A claimant is not entitled, under the provisions of this part,

to obtain from the Commission any materials (including any pre-

decisional or internal deliberative process materials that are prepared

to assist the Commission or Claims Review Staff in deciding the claim)

other than those listed in paragraph (a) of this section. The

Whistleblower Office may make redactions as necessary to comply with

any statutory restrictions, to protect the Commission's law enforcement

and regulatory functions, and to comply with requests for confidential

treatment from other law enforcement and regulatory authorities.

0

9. Revise Sec. 165.11 to read as follows:

Sec. 165.11 Awards based upon related actions.

(a) Provided that a whistleblower or whistleblowers comply with the

requirements in Sec. Sec. 165.3, 165.5 and 165.7, and pursuant to

Sec. 165.8, the Commission may grant an award based on the amount of

monetary sanctions collected in a ``related action'' or ``related

actions,'' where:

(1) A ``related action'' is a judicial or administrative action

that is brought by:

(i) The Department of Justice;

(ii) An appropriate department or agency of the Federal Government,

acting within the scope of its jurisdiction;

(iii) A registered entity, registered futures association, or self-

regulatory organization;

(iv) A State criminal or appropriate civil agency, acting within

the scope of its jurisdiction; or

(v) A foreign futures authority; and

(2) The ``related action'' is based on the original information

that the whistleblower voluntarily submitted to the Commission and led

to a successful resolution of the Commission judicial or administrative

action.

(b) The Commission will not make an award to a claimant for a final

judgment in a related action if the claimant has already been granted

an award by the Securities and Exchange Commission (SEC) for that same

action pursuant to its whistleblower award program under section 21F of

the Securities Exchange Act (15 U.S.C. 78a et seq.). If the SEC has

previously denied an award to the claimant for a judgment in a related

action, the whistleblower will be precluded from relitigating any

issues before the Commission that the SEC resolved against the claimant

as part of the award denial.

0

10. Revise Sec. 165.13 to read as follows:

Sec. 165.13 Appeals.

(a) Any Final Order of the Commission relating to a whistleblower

award determination, including whether, to whom, or in what amount to

make whistleblower awards, may be appealed to the appropriate court of

appeals of the United States not more than thirty (30) days after the

Final Order of the Commission is issued, provided that administrative

remedies have been exhausted.

(b) The record on appeal shall consist of:

(1) The Contents of Record for Award Determinations, as set forth

in Sec. 165.10. The record on appeal shall not include any pre-

decisional or internal deliberative process materials that are prepared

to assist the Commission or the Claims Review Staff in deciding the

claim (including staff's draft preliminary determination or any

proposed final determination or staff's draft final determination); and

(2) The preliminary determination and the Final Order of the

Commission, as set forth in Sec. 165.7.

0

11. Revise Sec. 165.15 to read as follows:

Sec. 165.15 Administering the whistleblower program.

(a) Specific authorities--(1) Payments, deposits, and credits. The

Executive Director is authorized to deposit into or credit collected

monetary sanctions to the Fund, and to make payment of awards

therefrom, with the concurrence of the General Counsel and the Director

of the Division of Enforcement, or of their respective designees.

(2) Designation of Claims Review Staff. The Claims Review Staff

referenced in Sec. 165.7 shall be composed of no fewer than three and

no more than five staff members from any of the Commission's Offices or

Divisions (except the Office of General Counsel) who have not had

direct involvement in the underlying enforcement action, as designated

by the Director of the Division of Enforcement in consultation with the

Executive Director. The Claims Review Staff will always include at

least one staff member who does not work in the Division of

Enforcement.

(3) Disclosure of whistleblower identifying information. The

Director of the Division of Enforcement is authorized on behalf of the

Commission to exercise its discretion to disclose whistleblower

identifying information under Sec. 165.4(a).

(b) General authority to administer the program. The Director of

the Division of Enforcement shall have general authority to administer

the whistleblower program except as otherwise provided under this part.

0

12. Revise Sec. 165.19 to read as follows:

Sec. 165.19 Nonenforceability of certain provisions waiving rights

and remedies or requiring arbitration of disputes.

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

the

[[Page 59561]]

Commission's regulations may not be waived by any agreement, policy,

form, or condition of employment, including by a predispute arbitration

agreement. No predispute arbitration agreement shall be valid or

enforceable if the agreement requires arbitration of a dispute arising

under this part.

(b) Protected communications. No person may take any action to

impede an individual from communicating directly with the Commission's

staff about a possible violation of the Commodity Exchange Act,

including by enforcing, or threatening to enforce, a confidentiality

agreement or predispute arbitration agreement with respect to such

communications.

0

13. Add Sec. 165.20 to read as follows:

Sec. 165.20 Whistleblower anti-retaliation protections.

(a) In general. No employer may discharge, demote, suspend,

directly or indirectly threaten or harass, or in any other manner

discriminate against, a whistleblower in the terms and conditions of

employment because of any lawful act done by the whistleblower--

(1) In providing information to the Commission in accordance with

this part; or

(2) In assisting in any investigation or judicial or administrative

action of the Commission based upon or related to such information.

(b) Anti-retaliation enforcement. Section 23(h)(1)(A) of the

Commodity Exchange Act (7 U.S.C. 26(h)(1)), including the rules in this

part promulgated thereunder, shall be enforceable in an action or

proceeding brought by the Commission.

(c) Protections apply regardless of non-qualification. The anti-

retaliation protections apply whether or not the whistleblower

satisfies the requirements, procedures, and conditions to qualify for

an award.

0

14. Revise appendix A to part 165 to read as follows:

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

Whistleblowers Against Retaliation

(a) In general. Section 23(h)(1) of Commodity Exchange Act

prohibits employers from engaging in retaliation against

whistleblowers. This provision provides whistleblowers with certain

protections against retaliation, including: a federal cause of

action brought by the whistleblower against the employer, which must

be filed in the appropriate district court of the United States

within two (2) years of the employer's retaliatory act, and

potential relief for prevailing whistleblowers, including

reinstatement, back pay, and compensation for other expenses,

including reasonable attorney's fees.

(b) Enforcement--(1) Cause of action. An individual who alleges

discharge, demotion, suspension, direct or indirect threats or

harassment, or any other manner of discrimination in violation of

section 23(h)(1)(A) of the Commodity Exchange Act may bring an

action under section 23(h)(1)(B) of the Commodity Exchange Act in

the appropriate district court of the United States for the relief

provided in section 23(h)(1)(C) of the Commodity Exchange Act,

unless the individual who is alleging discharge or other

discrimination in violation of section 23(h)(1)(A) of the Commodity

Exchange Act is an employee of the Federal Government, in which case

the individual shall only bring an action under section 1221 of

title 5, United States Code.

(2) Subpoenas. A subpoena requiring the attendance of a witness

at a trial or hearing conducted under section 23(h)(1)(B)(ii) of the

Commodity Exchange Act may be served at any place in the United

States.

(3) Statute of limitations. A private cause of action under

section 23(h)(1)(B) of the Commodity Exchange Act may not be brought

more than two (2) years after the date on which the violation

reported in section 23(h)(1)(A) of the Commodity Exchange Act is

committed.

(4) Commission authority to bring action. The Commission may

bring an enforcement action against an employer that retaliates

against a whistleblower by discharge, demotion, suspension, direct

or indirect threats or harassment, or any other manner of

discrimination.

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

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

shall include--

(1) Reinstatement with the same seniority status that the

individual would have had, but for the discrimination;

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

with interest; and

(3) Compensation for any special damages sustained as a result

of the discharge or discrimination, including litigation costs,

expert witness fees, and reasonable attorney's fees.

0

15. Add appendix B to part 165 to read as follows:

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

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BILLING CODE 6351-01-C

Privacy Act Statement

This notice is given under the Privacy Act of 1974. The Privacy

Act requires that the Commodity Futures Trading Commission (CFTC)

inform individuals of the following when asking for information. The

solicitation of this information is authorized under the Commodity

Exchange Act, 7 U.S.C. 1 et seq. This form may be used by anyone

wishing to provide the CFTC with information concerning a violation

of the Commodity Exchange Act or the CFTC's regulations. If an

individual is submitting this information for the CFTC's

whistleblower award program pursuant to Section 23 of the Commodity

Exchange Act, the information provided will be used to enable the

CFTC to determine the individual's eligibility for payment of an

award. This information will be used to investigate and prosecute

violations of the Commodity Exchange Act and the CFTC's regulations.

This information may be disclosed to federal, state, local or

foreign agencies or other authorities responsible for investigating,

prosecuting, enforcing or implementing laws, rules or regulations

implicated by the information consistent with the confidentiality

requirements set forth in Section 23 of the Commodity Exchange Act

and Part 165 of the CFTC's regulations. The information will be

maintained and additional disclosures may be made in accordance with

System of Records Notices CFTC-49, ``Whistleblower Records''

(exempted), CFTC-10, ``Investigatory Records'' (exempted), and CFTC-

16, ``Enforcement Case Files.'' Furnishing the information is

voluntary. However, if an individual is providing information for

the whistleblower award program, not providing required information

may result in the individual not being eligible for award

consideration.

Questions concerning this form may be directed to Commodity

Futures Trading Commission, Whistleblower Office, Three Lafayette

Centre, 1155 21st Street NW., Washington, DC 20581.

Submission Procedures

If you are submitting information for the CFTC's

whistleblower award program, you must submit your information using

this Form TCR.

You may submit this form electronically, through the

web portal found on the CFTC's Web site at http://www.cftc.gov,

which is also accessible from the CFTC Whistleblower Program Web

site at www.whistleblower.gov. You may also print this form and

submit it by mail to Commodity Futures Trading Commission,

Whistleblower Office, Three Lafayette Centre, 1155 21st Street NW.,

Washington, DC 20581, or by facsimile to (202) 418-5975.

You have the right to submit information anonymously.

If you do not submit anonymously, please note that the CFTC is

required by law to maintain the confidentiality of any information

which could reasonably identify you, and will only reveal such

information in limited and specifically-defined circumstances. See 7

U.S.C. 26(h)(2); 17 CFR 165.4. However, in order to receive a

whistleblower award, you will need to be identified to select CFTC

staff for a final eligibility determination, and in unusual

circumstances, you may need to be identified publicly for trial. You

should therefore provide some means for the CFTC's staff to contact

you, such as a telephone number or an email address.

Instructions for Completing Form TCR

General

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

complainant.

Section A: Tell Us About Yourself

Questions 1-14: Please provide the following information about

yourself:

[ballot] last name, first name and middle initial;

[ballot] complete address, including city, state and zip code;

[ballot] telephone number and, if available, an alternate number

where you can be reached;

[ballot] your email address (to facilitate communications, we

strongly encourage you to provide an email address, especially if

you are filing anonymously);

[ballot] your preferred method of communication; and

[ballot] your occupation.

Section B: Your Attorney's Information

Complete this section only if you are represented by an attorney

in this matter.

Questions 1-10: Provide the following information about your

attorney:

[ballot] attorney's name;

[ballot] firm name;

[ballot] complete address, including city, state and zip code;

[ballot] telephone number and fax number; and

[ballot] email address.

Section C: Tell Us Who You Are Complaining About

Question 1-2: Choose one of the following that best describes

the individual's profession or the type of entity to which your

complaint relates:

For Individuals: accountant, analyst, associated person,

attorney, auditor, broker, commodity trading advisor, commodity pool

operator, compliance officer, employee, executing broker, executive

officer or director, financial planner, floor broker, floor trader,

trader, unknown or other (specify).

For Entities: bank, commodity pool, commodity pool operator,

commodity trading advisor, futures commission merchant, hedge fund,

introducing broker, major swap participant, retail foreign exchange

dealer, swap dealer, unknown or other (specify).

Questions 3-12: For each individual and/or entity, provide the

following information, if known:

[ballot] full name;

[ballot] complete address, including city, state and zip code;

[ballot] telephone number;

[ballot] email address; and

[ballot] internet address, if applicable.

Questions 13: If the firm or individual you are complaining

about has custody or control of your investment, identify whether

you have had difficulty contacting that firm or individual.

Question 14: Identify if you are, or were, associated with the

individual or firm you are complaining about. If yes, describe how

you are, or were, associated with the individual or firm you are

complaining about.

Question 15: Identify the initial form of contact between you

and the person against whom you are filing this complaint.

Section D: Tell Us About Your Complaint

Question 1: State the date (mm/dd/yyyy) that the alleged conduct

occurred or began.

Question 2: Identify if the conduct is on-going.

Question 3: Choose the option that you believe best describes

the nature of your complaint. If you are alleging more than one

violation, please list all that you believe may apply.

Question 4: Select the type of product or instrument you are

complaining about.

Question 5: If applicable, please name the product or

instrument. If yes, please describe.

Question 6: Identify whether you have suffered a monetary loss.

If yes, please describe.

Question 7: Identify if the individual or firm you are

complaining about acknowledged their fault.

Question 8: Indicate whether you have taken any other action

regarding your complaint, including whether you complained to the

CFTC, another regulator, a law enforcement agency, or any other

agency or organization, or initiated legal action, mediation,

arbitration or any other action.

If you answered yes, provide details, including the date on

which you took the action(s) described, the name of the person or

entity to whom you directed any report or complaint, and contact

information for the person or entity, if known, and the complete

case name, case number and forum of any legal action you have taken.

Question 9: State in detail all facts pertinent to the alleged

violation. Explain why you believe the facts described constitute a

violation of the Commodity Exchange Act.

Question 10: Describe all supporting materials in your

possession and the availability and location of any additional

supporting materials not in your possession.

Section E: Whistleblower Program

Question 1: Describe how you obtained the information that

supports your allegations. If any information was obtained from an

attorney or in a communication where an attorney was present,

identify such information with as much particularity as possible. In

addition, if any information was obtained from a public source,

identify the source with as much particularity as possible.

Question 2: Identify any documents or other information in your

submission on this Form TCR that you believe could reasonably be

expected to reveal your identity. Explain the basis for your belief

that your identity would be revealed if the documents or information

were disclosed to a third party.

Question 3: State whether you or your attorney have had any

prior

[[Page 59574]]

communication(s) with the CFTC concerning this matter.

If you answered ``yes'', identify the CFTC staff member(s) with

whom you or your attorney communicated.

Question 4: Indicate whether you or your attorney have provided

the information you are providing to the CFTC to any other agency or

organization, or whether any other agency or organization has

requested the information or related information from you.

If you answered ``yes'', provide details and the name and

contact information of the point of contact at the other agency or

organization, if known.

Question 5: Indicate whether your complaint relates to an entity

of which you are, or were in the past, an officer, director,

counsel, employee, consultant or contractor.

If you answered ``yes'', state whether you have reported this

violation to your supervisor, compliance office, whistleblower

hotline, ombudsman, or any other available mechanism at the entity

for reporting violations. Please provide details, including the date

on which you took the action.

Question 6: Indicate whether you have taken any other action

regarding your complaint, including whether you complained to the

CFTC, another regulator, a law enforcement agency, or any other

agency or organization, or initiated legal action, mediation,

arbitration or any other action.

If you answered ``yes'', provide details, including the date on

which you took the action(s) described, the name of the person or

entity to whom you directed any report or complaint, and contact

information for the person or entity, if known, and the complete

case name, case number and forum of any legal action you have taken.

Question 7: Provide any additional information you think may be

relevant.

Question 8: Indicate whether you provide your consent to the

CFTC allowing the CFTC to share your identifying information with

other governmental authorities.

Section F: Whistleblower Eligibility Requirements and Other Information

Question 1: State whether you are currently, or were at the time

that you acquired the original information that you are submitting

to the CFTC, a member, officer or employee of: the CFTC; the Board

of Governors of the Federal Reserve System; the Office of the

Comptroller of the Currency; the Board of Directors of the Federal

Deposit Insurance Corporation; the Director of the Office of Thrift

Supervision; the National Credit Union Administration Board; the

Securities and Exchange Commission; the Department of Justice; a

registered entity; a registered futures association; a self-

regulatory organization; a law enforcement organization; or a

foreign regulatory authority or law enforcement organization.

Question 2: State whether you are providing the information

pursuant to a cooperation agreement with the CFTC or with another

agency or organization.

Question 3: State whether you are providing this information

before you (or anyone representing you) received any request,

inquiry or demand that relates to the subject matter of this

submission (i) from the CFTC, (ii) in connection with an

investigation, inspection or examination by any registered entity,

registered futures association or self-regulatory organization, or

(iii) in connection with an investigation by the Congress, or any

other federal or state authority.

Question 4: State whether you are currently a subject or target

of a criminal investigation, or whether you have been convicted of a

criminal violation, in connection with the information you are

submitting to the CFTC.

Question 5: State whether you acquired the information you are

providing to the CFTC from any individual described in Questions 1

through 4 of this section.

Question 6: If you answered yes to any of Questions 1 through 5,

please provide details.

Section G: Whistleblower's Declaration

You must sign this Declaration if you are submitting this

information pursuant to the CFTC whistleblower program and wish to

be considered for an award. If you are submitting your information

using the electronic version of Form TCR through the CFTC's web

portal, you must check the box to agree with the declaration. If you

are submitting your information anonymously, you must still sign

this Declaration (using the term ``anonymous'') or check the box as

appropriate, and, if you are represented by an attorney, you must

provide your attorney with the original of this signed form, or

maintain a copy for your own records. If you are not submitting your

information pursuant to the CFTC whistleblower program, you do not

need to sign this Declaration or check the box.

Section H: Counsel Certification

If you are submitting this information pursuant to the CFTC

whistleblower program and you are doing so anonymously through an

attorney, your attorney must sign the Counsel Certification Section.

If your attorney is submitting your information using the electronic

version of Form TCR through the CFTC's web portal, he/she must check

the box to agree with the certification. If you are represented in

this matter but you are not submitting your information pursuant to

the CFTC whistleblower program, your attorney does not need to sign

this Certification or check the box.

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BILLING CODE 6351-01-C

Privacy Act Statement

This notice is given under the Privacy Act of 1974. The Privacy

Act requires that the Commodity Futures Trading Commission (CFTC)

inform individuals of the following when asking for information. The

solicitation of this information is authorized under the Commodity

Exchange Act, 7 U.S.C. 1 et seq. The information provided will

enable the CFTC to determine the whistleblower award claimant's

eligibility for payment of an award pursuant to Section 23 of the

Commodity Exchange Act and Part 165 of the CFTC's regulations. This

information will be used to investigate and prosecute violations of

the Commodity Exchange Act and the CFTC's regulations. This

information may be disclosed to federal, state, local or foreign

agencies or other authorities responsible for investigating,

prosecuting, enforcing or implementing laws, rules or regulations

implicated by the information consistent with the confidentiality

requirements set forth in Section 23 of the Commodity Exchange Act

and Part 165 of the CFTC's regulations. The information will be

maintained and additional disclosures may be made in accordance with

System of Records Notices CFTC-49, ``Whistleblower Records''

(exempted), CFTC-10, ``Investigatory Records'' (exempted), and CFTC-

16, ``Enforcement Case Files.'' The CFTC requests the last four

digits of the claimant's Social Security Number for use as an

individual identifier to administer and manage the whistleblower

award program. Executive Order 9397 (November 22, 1943) allows

federal agencies to use the Social Security Number as an individual

identifier. Furnishing the information is voluntary. However, if an

individual is providing information for the whistleblower award

program, not providing required information may result in the

individual not being eligible for award consideration.

Questions concerning this form may be directed to Commodity

Futures Trading Commission, Whistleblower Office, Three Lafayette

Centre, 1155 21st Street NW., Washington, DC 20581.

Submission Procedures

This form must be used by persons making a claim for a

whistleblower award in connection with information provided to the

CFTC, or to another agency or organization in a related action. In

order to be deemed eligible for an award, you must meet all the

requirements set forth in Section 23 of the Commodity Exchange Act

and Part 165 of the CFTC's regulations.

You must sign the Form WB-APP as the claimant. If you

wish to submit the Form WB-APP anonymously, you must do so through

an attorney, your attorney must sign the Counsel Certification

Section of the Form WB-APP that is submitted to the CFTC, and you

must give your attorney your original signed Form WB-APP so that it

can be produced to the CFTC upon request.

During the whistleblower award claim process, your

identity must be verified in a form and manner that is acceptable to

the CFTC prior to the payment of any award.

[cir] If you are filing your claim in connection with

information that you provided to the CFTC, then your Form WB-APP,

and any attachments thereto, must be received by the CFTC within

ninety (90) days of the date of the Notice of Covered Action, or the

date of a final judgment in a related action to which the claim

relates.

[cir] If you are filing your claim in connection with

information that you provided to another agency or organization in a

related action, then your Form WB-APP, and any attachments thereto,

must be received by the CFTC as follows:

If a final order imposing monetary sanctions has been

entered in a related action at the time that you submit your claim

for an award in connection with a CFTC action, you may submit your

claim for an award in that related action on the same Form WB-APP

that you use for the CFTC action.

If a final order imposing monetary sanctions in a

related action has not been entered at the time that you submit your

claim for an award in connection with a CFTC action, you must submit

your claim on Form WB-APP within ninety (90) days of the issuance of

a final order imposing sanctions in the related action.

If a final judgment imposing monetary sanctions in a

related action has been entered and a Notice of Covered Action for a

related covered judicial or administrative action has not been

published, you may submit your claims for awards in both the covered

judicial or administrative action and related action within ninety

(90) days of the date of the Notice of Covered Action. The claims

may be submitted on the same Form WB-APP.

If a final order imposing monetary sanctions in a

related action relates to a judicial or administrative action

brought by the Commission under the Commodity Exchange Act that is

not a covered judicial or administrative action, and therefore there

would not be a Notice of Covered Action, you must submit your claim

on Form WB-APP for an award in connection with the related action

within ninety (90) calendar days following either (1) the date of

issuance of a final order in the related action, if that date is

after the date of issuance of the final judgment in the related

Commission judicial or administrative action; or (2) the date of

issuance of the final judgment in the related Commission judicial or

administrative action, i.e., the date the related action becomes a

related action, if the date of issuance of the final order in the

related action precedes the final judgment in the related Commission

judicial or administrative action.

To submit your Form WB-APP, you may print it and either

submit it by mail to Commodity Futures Trading Commission,

Whistleblower Office, Three Lafayette Centre, 1155 21st Street NW.,

Washington, DC 20581, or by facsimile to (202) 418-5975. You also

may submit this form electronically, through the web portal found on

the CFTC's Web site at http://www.cftc.gov, which is also accessible

from the CFTC Whistleblower Program Web site at

www.whistleblower.gov.

Instructions for Completing Form WB-APP

General

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

whistleblower award claimant.

Section A: Tell Us about Yourself

Questions 1-3: Please provide the following information about

yourself:

last name, first name, middle initial and the last four

digits of your Social Security Number;

complete address, including city, state and zip code;

telephone number and, if available, an alternate number

where you can be reached; and

your email address (to facilitate communications, we

strongly encourage you to provide an email address, especially if

you are making your claim anonymously).

Section B: Your Attorney's Information

Complete this section only if you are represented by an attorney

in this matter.

Questions 1-4: Provide the following information about your

attorney:

attorney's name;

firm name;

complete address, including city, state and zip code;

telephone number and fax number; and

email address.

Section C: Tell Us about Your Tip or Complaint

Question 1a: Indicate the manner in which you submitted your

original information to the CFTC.

Question 1b: Provide the date on which you submitted your original

information to the CFTC.

Question 2a: State whether you filed a CFTC Form TCR.

Question 2b: If you filed a CFTC Form TCR, provide the Form's

number.

Question 2c: If you filed a CFTC Form TCR, provide the date on which

you filed the Form.

Question 3: Provide the name(s) of the individual(s) and/or

entity(s) to which your tip or complaint relates.

Section D: Notice of Covered Action

The process for making a claim for a whistleblower award for a

CFTC action begins with the publication of a ``Notice of Covered

Action'' on the CFTC's Web site. This Notice is published whenever a

judicial or administrative action brought by the CFTC results in the

imposition of monetary sanctions exceeding $1,000,000. The Notice is

published on the CFTC's Web site subsequent to the entry of a final

judgment or order in the action that by itself, or collectively with

other judgments or orders previously entered in the action, exceeds

the $1,000,000 threshold required for a whistleblower to be

potentially eligible for an award. The CFTC will not contact

whistleblower claimants directly as to Notices of Covered Actions;

prospective claimants should monitor the CFTC Web site for such

Notices.

[[Page 59581]]

Question 1: Provide the date of the Notice of Covered Action to

which this claim relates.

Question 2: Provide the notice number of the Notice of Covered

Action.

Question 3a: Provide the case name referenced in the Notice of

Covered Action.

Question 3b: Provide the case number referenced in the Notice of

Covered Action.

Section E: Claims Pertaining to Related Actions

Question 1: Provide the name of the agency or organization to which

you provided your information.

Question 2: Provide the name and contact information for your point

of contact at the agency or organization, if known.

Question 3a: Provide the date on which you provided your information

to the agency or organization referenced in Question 1 of this

section.

Question 3b: Provide the date on which the agency or organization

referenced in Question 1 of this section filed the related action

that was based upon the information that you provided.

Question 4a: Provide the case name of the related action.

Question 4b: Provide the case number of the related action.

Section F: Eligibility Requirements and Other Information

Question 1: State whether you are currently, or were at the time

that you acquired the original information that you submitted to the

CFTC, a member, officer or employee of: the CFTC; the Board of

Governors of the Federal Reserve System; the Office of the

Comptroller of the Currency; the Board of Directors of the Federal

Deposit Insurance Corporation; the Director of the Office of Thrift

Supervision; the National Credit Union Administration Board; the

Securities and Exchange Commission; the Department of Justice; a

registered entity; a registered futures association; a self-

regulatory organization; a law enforcement organization; or a

foreign regulatory authority or law enforcement organization.

Question 2: State whether you provided the information that you

submitted to the CFTC pursuant to a cooperation agreement with the

CFTC, or with any other agency or organization.

Question 3: State whether you provided this information before you

(or anyone representing you) received any request, inquiry or demand

that relates to the subject matter of your submission (i) from the

CFTC, (ii) in connection with an investigation, inspection or

examination by any registered entity, registered futures association

or self-regulatory organization, or (iii) in connection with an

investigation by the Congress, or any other federal or state

authority.

Question 4: State whether you are currently a subject or target of a

criminal investigation, or whether you have been convicted of a

criminal violation, in connection with the information that you

submitted to the CFTC and upon which your application for an award

is based.

Question 5: State whether you acquired the information that you

provided to the CFTC from any individual described in Questions 1

through 4 of this section.

Question 6: If you answered yes to any of Questions 1 through 5 of

this section, please provide details.

Section G: Entitlement to Award

This section is optional. Use this section to explain the basis

for your belief that you are entitled to an award in connection with

your submission of information to the CFTC, or to another agency in

connection with a related action. Specifically, address why you

believe that you voluntarily provided the CFTC with original

information that led to the successful enforcement of a judicial or

administrative action filed by the CFTC, or a related action. Refer

to Sec. 165.9 of Part 165 of the CFTC's regulations for further

information concerning the relevant award criteria.

Section 23(c)(1)(B) of the Commodity Exchange Act and Sec.

165.9(a) of Part 165 of the CFTC's regulations require the CFTC to

consider the following factors in determining the amount of an

award: (1) the significance of the information provided by a

whistleblower to the success of the CFTC action or related action;

(2) the degree of assistance provided by the whistleblower and any

legal representative of the whistleblower in the CFTC action or

related action; (3) the programmatic interest of the CFTC in

deterring violations of the Commodity Exchange Act (including

regulations under the Act) by making awards to whistleblowers who

provide information that leads to the successful enforcement of such

laws; (4) whether the award otherwise enhances the CFTC's ability to

enforce the Commodity Exchange Act, protect customers, and encourage

the submission of high quality information from whistleblowers; and

(5) potential adverse incentives from oversize awards. Address these

factors in your response as well.

Section H: Claimant's Declaration

You must sign this Declaration if you are submitting this claim

pursuant to the CFTC whistleblower program and wish to be considered

for an award. If you are submitting your claim anonymously, you must

do so through an attorney, and you must provide your attorney with

your original signed Form WB-APP.

Section I: Counsel Certification

If you are submitting this claim pursuant to the CFTC

whistleblower program anonymously, you must do so through an

attorney, and your attorney must sign the Counsel Certification

Section.

Issued in Washington, DC, on August 24, 2016, by the Commission.

Christopher J. Kirkpatrick,

Secretary of the Commission.

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

Federal Regulations.

Appendix to Whistleblower Awards Process--Commission Voting Summary

On this matter, Chairman Massad and Commissioners Bowen and

Giancarlo voted in the affirmative. No Commissioner voted in the

negative.

[FR Doc. 2016-20745 Filed 8-29-16; 8:45 am]

BILLING CODE 6351-01-P

 

Last Updated: August 30, 2016