Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 24487 

1See Whistleblower Incentives and Protection, 76 

FR 53172 (Aug. 25, 2011). 

2Whistleblower Awards Process, 81 FR 59551 

(Aug. 30, 2016). 

(d) Inspection and production of 

regulatory records. Unless specified 

elsewhere in the Act or Commission 

regulations in this chapter, a records 

entity, at its own expense, must produce 

or make accessible for inspection all 

regulatory records in accordance with 

the following requirements: 

(1) Inspection. All regulatory records 

shall be open to inspection by any 

representative of the Commission or the 

United States Department of Justice. 

(2) Production of paper regulatory 

records. A records entity must produce 

regulatory records exclusively created 

and maintained on paper promptly 

upon request of a Commission 

representative. 

(3) Production of electronic regulatory 

records. (i) A request from a 

Commission representative for 

electronic regulatory records will 

specify a reasonable form and medium 

in which a records entity must produce 

such regulatory records. 

(ii) A records entity must produce 

such regulatory records in the form and 

medium requested promptly, upon 

request, unless otherwise directed by 

the Commission representative. 

(4) Production of original regulatory 

records. A records entity may provide 

an original regulatory record for 

reproduction, which a Commission 

representative may temporarily remove 

from such entity’s premises for this 

purpose. Upon request of the records 

entity, the Commission representative 

shall issue a receipt for any original 

regulatory record received. At the 

request of a Commission representative, 

a records entity shall, upon the return 

thereof, issue a receipt for the original 

regulatory record returned by such 

representative. 

■ 3. In § 1.35, revise paragraph (a)(5) to 

read as follows: 

§ 1.35 Records of commodity interest and 

related cash or forward transactions. 

(a) * * * 

(5) Form and manner. All records 

required to be kept pursuant to 

paragraphs (a)(1), (a)(2), (a)(3), and (a)(4) 

of this section, other than pre-trade 

communications, shall be kept in a form 

and manner that allows for the 

identification of a particular transaction. 

* * * * * 

PART 23—SWAP DEALERS AND 

MAJOR SWAP PARTICIPANTS 

■ 4. The authority citation for part 23 

continues to read as follows: 

Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b– 

1, 6c, 6p, 6r, 6s, 6t, 9, 9a, 12, 12a, 13b, 13c, 

16a, 18, 19, 21. 

Section 23.160 also issued under 7 U.S.C. 

2(i); Sec. 721(b), Pub. L. 111–203, 124 Stat. 

1641 (2010). 

■ 5. In § 23.203, amend paragraph (b) as 

follows: 

■ a. Revise paragraph (b)(1); and 

■ b. Remove and reserve paragraph 

(b)(2). 

The revisions to read as follows: 

§ 23.203 Records; retention and 

inspection. 

* * * * * 

(b) Record retention. (1) The records 

required to be maintained by this 

chapter shall be maintained in 

accordance with the provisions of § 1.31 

of this chapter, except as provided in 

paragraph (b)(3) of this section. All such 

records shall be open to inspection by 

any representative of the Commission, 

the United States Department of Justice, 

or any applicable prudential regulator. 

Records relating to swaps defined in 

section 1a(47)(A)(v) shall be open to 

inspection by any representative of the 

Commission, the United States 

Department of Justice, the Securities 

and Exchange Commission, or any 

applicable prudential regulator. 

(2) [Reserved] 

* * * * * 

Issued in Washington, DC, on May 23, 

2017, by the Commission. 

Christopher J. Kirkpatrick, 

Secretary of the Commission. 

Note: The following appendix will not 

appear in the Code of Federal Regulations. 

Appendix to Recordkeeping— 

Commission Voting Summary 

On this matter, Acting Chairman Giancarlo 

and Commissioner Bowen voted in the 

affirmative. No Commissioner voted in the 

negative. 

[FR Doc. 2017–11014 Filed 5–26–17; 8:45 am] 

BILLING CODE 6351–01–P 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 165 

RIN 3038–AE50 

Whistleblower Awards Process 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commodity Futures 

Trading Commission (‘‘Commission’’) is 

amending its regulations and forms to 

enhance the process for reviewing 

whistleblower claims and to make 

related changes to clarify staff authority 

to administer the whistleblower 

program. The Commission also is 

making appropriate rule amendments to 

implement its reinterpretation of the 

Commission’s anti-retaliation authority. 

DATES: This final rule is effective July 

31, 2017. 

FOR FURTHER INFORMATION CONTACT: 

Anthony Hays, Counsel, (202) 418– 

5584, ahays@cftc.gov, Commodity 

Futures Trading Commission, Three 

Lafayette Centre, 1155 21st Street NW., 

Washington, DC 20581. 

SUPPLEMENTARY INFORMATION: The 

Commission is amending its rules in 

§§ 165.1 through 165.19 and appendix 

A, and adopting new rule § 165.20 and 

appendix B as well as amending Forms 

TCR (‘‘Tip, Complaint or Referral’’) and 

WB–APP (‘‘Application for Award for 

Original Information Provided Pursuant 

to Section 23 of the Commodity 

Exchange Act’’). 

I. Background 

In 2011, the Commission adopted its 

part 165 regulations, which implement 

Section 23 of the Commodity Exchange 

Act (‘‘CEA’’), 7 U.S.C. 26, by 

establishing a regulatory framework for 

the whistleblower program.1 Part 165 

provides for the payment of awards, 

subject to certain limitations and 

conditions, to whistleblowers who 

voluntarily provide the Commission 

with original information about a 

violation of the CEA that leads to the 

successful enforcement of an action 

brought by the Commission that results 

in monetary sanctions exceeding 

$1,000,000 (‘‘Covered Action’’), or the 

successful enforcement of a Related 

Action, as that term is defined in the 

rules. 

The award amount must be between 

10 and 30 percent of the amount of 

monetary sanctions collected in a 

Covered Action or a Related Action and 

is paid from the CFTC Customer 

Protection Fund. The Commission has 

discretion regarding the amount of an 

award based on the significance of the 

information, the degree of assistance 

provided by the whistleblower, and 

other criteria. 

Since the whistleblower program was 

established in 2011, the need for certain 

improvements has become apparent. In 

order to address that need the 

Commission proposed amendments to 

the part 165 rules (‘‘Proposal’’).2 As 

explained further below, these rules 

provide for targeted revisions to the 

claims review process and to the 

authority of staff to administer the 


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3See, respectively, the following: Letter dated 

September 12, 2016, from Joseph N. Perlman; Letter 

dated September 16, 2016, from Chris Barnard; 

Letter dated September 27, 2016, from Matthew 

Erpen; Letter dated September 29, 2016, from 

Robert D.M. Garson, Garson, Segal, Steinmetz, 

Fladgate LLP (GS2Law); Letter dated September 29, 

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

McEldrew, Esq., McEldrew Young (MY); Letter 

dated September 28, 2016, from Jacklyn N. DeMar, 

Acting Director of Legal Education, Taxpayers 

Against Fraud (TAF); and Letter dated September 

29, 2016, from Stephen M. Kohn, Executive 

Director, and David K. Colapinto, General Counsel, 

National Whistleblower Center (NWC). 

4See Joseph N. Perlman comment letter. 

5See NWC comment letter. 

6The public comments on the Proposed Rule are 

available at https://comments.cftc.gov/ 

PublicComments/CommentList.aspx?id=1733. 

7See TAF comment letter. 

8See TAF and MY comment letters. 

9See TAF comment letter. 

10See MY comment letter. 

11See TAF and MY comment letters. 

12See MY comment letter. 

13See TAF comment letter. 

whistleblower program. The 

Commission also proposed to amend the 

rules to implement its anti-retaliation 

authority under Section 23(h)(1) based 

on a reinterpretation of that authority. 

Finally, the Commission proposed to 

amend its rules to permit 

whistleblowers to receive awards based 

on both Covered Actions and the 

successful enforcement of Related 

Actions, as defined in the rules. 

The Commission received seven 

comment letters in response to the 

Proposal. Most of the comment letters 

focused on specific aspects of the 

proposed rule amendments and made 

targeted recommendations and 

suggestions. Three of the comment 

letters were from private individuals, 

two were from law firms with 

whistleblower practices, and two were 

from whistleblower advocacy groups.3

Most of the comments received were 

generally supportive of the 

Commission’s whistleblower program 

and proposed changes to the rules. One 

comment letter was critical of the 

current process for handling 

whistleblower award claims but did not 

provide specific comments on the 

proposed rules.4 One of the 

whistleblower advocacy groups 

incorporated by reference the comment 

letter previously submitted by the other 

group.5

II. Description of Final Rules 

The Commission is adopting the 

amendments to its part 165 

whistleblower rules as set forth in the 

Proposed Rules with certain changes 

made in response to public comments. 

The amendments and the public 

comments relevant to each amendment 

are discussed below.6

Eligibility Requirements for 

Consideration of an Award 

a. Proposed Rule 

The Commission proposed targeted 

changes to the rules relating to 

consideration of an award. The 

Commission proposed to revise Rule 

165.5 to make clear that a claimant may 

receive an award in a Covered Action, 

in a Related Action, or both. Also in 

Rule 165.5, the Commission proposed to 

make clear that a claimant may be 

eligible for an award by providing the 

Commission original information 

without being the original source of the 

information, and the Commission 

provided the public with notice that the 

Commission has discretion to waive its 

procedural rules based upon a showing 

of extraordinary circumstances. 

In addition, the Commission proposed 

to revise the definition of ‘‘original 

source’’ in Rule 165.2(l) to extend the 

timeframe from 120 to 180 days that a 

whistleblower has to file a Form TCR 

pursuant to Rule 165.3 after previously 

providing the same information to 

Congress, any other federal or state 

authority, a registered entity, a 

registered futures association, a selfregulatory organization, or to any of the 

persons described in Rule 165.2(g)(4) 

and (5). 

b. Comments Received 

The Commission received several 

comments regarding the proposed 

changes to the requirements for 

consideration of an award. 

Proposed Rule 165.5(b) removed 

being the original source of information 

received by the Commission from the 

eligibility criteria for an award. The 

Commission received one comment 

which endorsed this approach.7

The Commission received two 

comments regarding the Commission’s 

proposal to amend Rule 165.5(c) to 

allow the Commission to waive 

procedural requirements in 

extraordinary circumstances. Both 

commenters supported the proposed 

change to this rule.8 One commenter 

noted that the proposed change to this 

rule is consistent with the overall policy 

goals of the whistleblower program and 

that whistleblowers have varying levels 

of sophistication and familiarity with 

the procedural requirements.9 Another 

commenter noted that rigid application 

of the procedural requirements would 

undermine the spirit of Congress when 

it created the whistleblower program 

and that the proposed change would 

further encourage whistleblowers to 

provide information even when they 

may not have followed all of the 

technical rules to be eligible for an 

award.10

Proposed Rule 165.2(l) extended the 

deadline from 120 to 180 days that a 

whistleblower has to make a submission 

to the Commission and retain status as 

the original source of information after 

first submitting the information to 

Congress, any other federal or state 

authority, a registered entity, a 

registered futures association, a selfregulatory organization, or to any of the 

persons described in paragraphs (g)(4) 

and (5) of Rule 165.2 to be eligible for 

an award. The Commission received 

two comments supporting this proposed 

change.11 One commenter stated that 

many whistleblowers are often at or 

beyond the 120-day period before 

considering external reporting because 

they wait for the outcome of the internal 

investigation before reporting externally 

and internal investigations often take 

some time. This commenter also stated 

that while 180 days is a substantial 

improvement, an even longer time frame 

would help ensure that well-intentioned 

individuals receive full credit for their 

information.12

The other commenter agreed that the 

period of eligibility should be 

lengthened to 180 days but urged the 

Commission to state that the 180-day 

period refers only to the whistleblower’s 

‘‘look back’’ eligibility to retain original 

source status and that whistleblowers 

will not lose that status or eligibility for 

an award if they perfect their 

submission to the Commission after 180 

days elapse. This commenter also urged 

the Commission to revise Rule 

165.2(l)(2) to include individuals who 

first provide information to foreign 

governments or self-regulatory 

authorities because of the global nature 

of the commodities markets and the 

increasing number of international 

whistleblowers participating in the 

Dodd-Frank whistleblower programs. 

This commenter went on to state that 

there is no persuasive policy reason for 

excluding such persons from original 

source status because some of the 

Commission’s recent enforcement cases 

were brought with the cooperation of 

foreign authorities and the proposed 

rules allow for whistleblower awards 

based on Related Actions by certain 

foreign authorities. Hence, this 

commenter argued that if 

whistleblowers may receive awards 

based on Related Actions undertaken by 

foreign authorities, those 

whistleblowers should be entitled to 

original source eligibility in instances 

where they report to a foreign authority 

prior to reporting to the Commission.13


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

futures authority as any foreign government, or any 

department, agency, governmental body, or 

regulatory organization empowered by a foreign 

government to administer or enforce a law, rule, or 

regulation as it relates to a futures or options matter, 

or any department or agency of a political 

subdivision of a foreign government empowered to 

administer or enforce a law, rule, or regulation as 

it relates to a futures or options matter. 15See 17 CFR 240.21F–10(d)–(h) (2014). 

c. Final Rule 

The Commission received no 

comments regarding the proposed 

revision in Rule 165.5(a)(3) that makes 

clear that a claimant may receive an 

award in a Covered Action, in a Related 

Action, or both and, accordingly, is 

adopting the amendment as proposed. 

With respect to the proposed revision 

to Rule 165.5(b), the Commission 

believes that removing the requirement 

that the whistleblower be the original 

source of information received by the 

Commission is consistent with Section 

23(b)(1), and will prevent the potential 

situation where a claimant reports 

internally before providing information 

to the Commission and the employer 

self-reports the violation of the CEA, 

thereby foreclosing the claimant’s 

eligibility for an award because the 

employer is the ‘‘original source’’ of the 

information. The Commission is 

adopting this amendment as proposed. 

The Commission has also decided to 

adopt as proposed Rule 165.5(c), which 

clarifies that the Commission may waive 

any procedural requirements upon a 

showing of extraordinary circumstances. 

After consideration of the comments 

on Rule 165.2(l), the Commission has 

decided to adopt the rule with one 

change, a conforming change and a 

minor correction. The Commission is 

adding foreign futures authorities 14 to 

the authorities and entities to which a 

claimant may provide information prior 

to filing a Form TCR and retain original 

source status. This change is consistent 

with the list of agencies and authorities 

in Section 23(h)(2)(C) with which the 

Commission can share information 

received from a whistleblower if 

necessary or appropriate to accomplish 

the purposes of the Commodity 

Exchange Act and protect customers. 

The Commission understands that 

individuals who are located outside the 

United States might decide to approach 

a local authority prior to providing 

information to the Commission. As a 

result, and in consideration of the global 

nature of the futures and swaps markets 

and the number of the Commission’s 

recent enforcement actions that have 

been undertaken with the cooperation of 

foreign governments, the Commission 

believes it is appropriate to expand the 

list of entities in Rules 165.2(l)(1)(i) and 

165.2(l)(2). In addition, the Commission 

is adding registered entity and 

registered futures association to, and 

removing futures association from the 

list of authorities in Rule 165.2(i)(2); 

and adding registered entity and 

registered futures association to Rule 

165.2(l)(1)(i) in order to conform those 

rules to existing language in Rules 

165.4(a)(2) and 165.11 and to Section 

23(h)(2)(C)(i). The Commission is 

correcting a typographical error in Rule 

165.2(l)(2) by removing ‘‘of any’’ and 

correcting an omission by inserting 

‘‘local’’ in the list of authorities in the 

first sentence. 

The Commission also clarifies that the 

180-day timeframe in Rule 165.2(l)(2) 

relates only to the date on which the 

Commission will consider a 

whistleblower’s original information to 

have been received. Filing a Form TCR 

more than 180 days after reporting 

information to another authority does 

not strip a whistleblower of original 

source status or render a whistleblower 

ineligible for an award. Also, the 

Commission is amending Rule 

165.2(i)(3) to extend the time from 120 

to 180 days in order to conform that rule 

to the extension of the timeframe in 

Rule 165.2(1)(2). 

Award Claims Review Under Rule 165.7 

a. Proposed Rules 

The Commission proposed several 

changes to the award claims review 

process under Rule 165.7 to better 

define and specify each step in the 

process. Those steps were spelled out in 

proposed new paragraphs (f) through (l), 

along with new provisions regarding 

withdrawing award applications in 

proposed paragraph (d) and disposition 

of claims that do not relate to Notices 

of Covered Actions (‘‘NCAs’’) or final 

judgments in Related Actions in 

proposed new paragraph (e). The 

proposed amendments would establish 

a review process similar to that 

established under the SEC’s 

whistleblower rules.15 Specifically, the 

Commission proposed to discontinue 

the Whistleblower Award 

Determination Panel and replace it with 

a review process handled by a Claims 

Review Staff designated by the Director 

of the Division of Enforcement in 

consultation with the Executive 

Director, with the Claims Review Staff 

being assisted by the Whistleblower 

Office staff within the Division of 

Enforcement. The proposed rules also 

would provide an additional means for 

the submission of the required Form 

WB–APP, Application for Award for 

Original Information Provided Pursuant 

to Section 23 of the Commodity 

Exchange Act, in Rule 165.7(b)(1); 

explain the deadline for filing Form 

WB–APP under different timing 

scenarios for final judgments in covered 

judicial or administrative actions and 

Related Actions in proposed Rule 

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

change by renumbering prior paragraph 

(e) in Rule 165.7 as paragraph (l). 

Proposed Rule 165.7(d) would permit 

a claimant to withdraw an award 

application at any point in the review 

process by submitting a written request 

to the Whistleblower Office. 

Proposed Rule 165.7(e) addressed the 

Commission’s experience of receiving a 

number of Form WB–APPs that appear 

to be unrelated to NCAs or final 

judgments in Related Actions as well as 

Form WB–APPs that do not relate to a 

previously filed Form TCR. In order to 

reduce the administrative burden on the 

Commission, the Commission proposed 

that such facially ineligible claims 

primarily be handled by the 

Whistleblower Office. The 

Whistleblower Office would notify the 

claimant of the deficiencies in the Form 

WB–APP and provide an opportunity 

for the claimant to correct the 

deficiencies or withdraw the claim 

before the finalization of the denial of 

the claim. If the claimant does not 

correct the deficiencies or withdraw the 

claim, the Whistleblower Office would 

notify the Claims Review Staff of the 

proposed denial, which would be called 

a Proposed Final Disposition, and any 

member of the Claims Review Staff 

would have the opportunity to request 

review of the proposed denial. If no 

member of the Claims Review Staff 

requests review, the Proposed Final 

Disposition would become the final 

order of the Commission. If a member of 

the Claims Review Staff requests review, 

the Claims Review Staff would review 

the record for the denial and either 

remand to the Whistleblower Office for 

further action or issue a final order of 

the Commission, which consists of the 

proposed denial. 

In Rule 165.7(f), the Commission 

proposed that the Claims Review Staff 

would evaluate all timely award 

applications submitted on a Form WB– 

APP in response to the NCA or a final 

judgment in a Related Action. During 

the review process, the Whistleblower 

Office may require that claimants 

provide additional information, 

explanation, or assistance as set forth in 

Rule 165.5(b)(3). For award claims on 

Related Actions, as proposed in Rule 

165.7(f), the Whistleblower Office may 

request additional information from the 

claimant to demonstrate that the 


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16See GS2Law and TAF comment letters. 

17See GS2Law comment letter. 

18See TAF comment letter. 

claimant voluntarily provided the 

governmental agency, regulatory 

authority, or self-regulatory organization 

the same original information that led to 

the Commission’s successful 

enforcement action and the successful 

enforcement of the Related Action. The 

Whistleblower Office may also seek 

assistance and confirmation from the 

other agency in making this 

determination. 

In Rule 165.7(g)(1), the Commission 

proposed that following the initial 

evaluation by the Claims Review Staff, 

the Claims Review Staff would issue a 

Preliminary Determination setting forth 

a preliminary assessment as to whether 

the claim should be granted or denied 

and, if granted, setting forth the 

proposed award percentage amount. 

The Whistleblower Office would send a 

copy of the Preliminary Determination 

to the claimant. The proposed 

amendments would allow a claimant 

the opportunity to contest the 

Preliminary Determination. 

In Rule 165.7(g)(2), the Commission 

proposed that the claimant could take 

any of the following steps in response 

to a Preliminary Determination: 

• Within thirty (30) calendar days of 

the date of the Preliminary 

Determination, the claimant may 

request that the Whistleblower Office 

make available for the claimant’s review 

the materials that formed the basis of 

the Claim Review Staff’s Preliminary 

Determination. 

• Within sixty (60) calendar days of 

the date of the Preliminary 

Determination, or if a request to review 

materials is made, then within sixty (60) 

days of the Whistleblower Office 

making those materials available for the 

claimant’s review, a claimant may 

submit a written response setting forth 

the grounds for the claimant’s objection 

to either the denial of an award or the 

proposed amount of an award. The 

claimant may also include 

documentation or other evidentiary 

support for the grounds advanced in any 

response, and request a meeting with 

the Whistleblower Office. However, 

such meetings would not be required. 

The Whistleblower Office may in its 

sole discretion decline the request. 

Proposed Rule 165.7(h) provides that 

if a claimant fails to submit a timely 

response under new Rule 165.7(g), then 

a Preliminary Determination denying an 

award becomes the Final Order of the 

Commission and constitutes a failure to 

exhaust the claimant’s administrative 

remedies. Failure to exhaust 

administrative remedies would prohibit 

the claimant from pursuing judicial 

review. 

If the claimant fails to contest a 

Preliminary Determination 

recommending an award, the 

Preliminary Determination would be 

treated as a Proposed Final 

Determination, which would make it 

subject to Commission review under 

proposed Rule 165.7(j). 

Proposed Rule 165.7(i) describes the 

procedure in cases where a claimant 

submits a timely response under 

proposed Rule 165.7(g). In such cases, 

the Claims Review Staff would consider 

the issues raised in the claimant’s 

response, along with any supporting 

documentation that the claimant 

provided, and prepare a Proposed Final 

Determination. 

In Rule 165.7(j), the Commission 

proposed that when there is a Proposed 

Final Determination, the Whistleblower 

Office would notify the Commission of 

the Proposed Final Determination. 

Within thirty (30) days of that 

notification, any Commissioner may 

request Commission review of the 

Proposed Final Determination. If no 

Commissioner makes such a request, the 

Proposed Final Determination would 

become the Commission’s Final Order. 

If a Commissioner does request review, 

the Commission would review the 

record that the Claims Review Staff 

relied upon in reaching its 

determination. On the basis of its review 

of that record, the Commission would 

issue its Final Order, which the Office 

of the Secretariat would then serve on 

the claimant. In reaching their 

decisions, the Commission and Claims 

Review Staff would only consider 

information in the record. 

The Office of General Counsel would 

review both preliminary and proposed 

final determinations prior to issuance, 

and no such determination may be 

issued without the Office of General 

Counsel’s determination of legal 

sufficiency. 

In Rule 165.15(a)(2), the Commission 

proposed that the Enforcement Director, 

in consultation with the Executive 

Director, would designate a minimum of 

three and a maximum of five staff from 

the Division of Enforcement or other 

Commission Offices or Divisions to 

serve on the Claims Review Staff, either 

on a case-by-case basis or for fixed 

periods. At least one person from 

outside the Division of Enforcement 

would be included on the Claims 

Review Staff at all times. The Claims 

Review Staff would be composed only 

of persons who have not had direct 

involvement with the underlying 

enforcement action. Due to the Office of 

General Counsel’s role in the review 

process, the Commission believes it is 

appropriate to exclude staff from that 

Office from serving as Claims Review 

Staff. 

b. Comments Received 

The Commission received two 

generally supportive comments 

regarding the proposed additions and 

changes to the award review process.16

One commenter stated that having 

dedicated staff for award determinations 

would be beneficial and urged the 

Commission to publish NCAs for 

Related Actions that the Commission 

knows emanated from the information 

provided by the whistleblower.17 The 

other commenter reasoned that the 

proposed changes in the process allow 

whistleblowers to better understand the 

reasons for a particular award or denial 

and to make informed requests for 

reconsideration, and that the proposed 

changes offer greater transparency in the 

awards process and will likely obviate 

the need for some appeals.18

c. Final Rule 

After consideration of the comments 

received, the Commission has decided 

to adopt Rule 165.7 as proposed. The 

Commission anticipates that these 

revisions will provide the public and 

claimants with greater transparency in 

the awards claim review process and 

enhance the expeditious and fair 

administration of the program. The 

Commission declines a commenter’s 

request that the Commission publish 

NCAs for Related Actions. The 

Commission believes that doing so 

would be unworkable and burdensome 

for the Commission. Publishing NCAs 

on all criminal and civil actions that 

may become Related Actions would 

require staff to track, monitor, and 

report on many actions that are not 

Commission actions. Rule 165.7(b)(3) 

clearly describes how and when actions 

brought by other agencies become 

Related Actions and when a claimant 

must file a Form WB–APP with the 

Commission to apply for an award in 

connection with these actions. It is the 

claimant’s responsibility to track the 

outcome of a Related Action if the 

claimant has an interest in pursuing an 

award application based on that Related 

Action. 

In response to the comment on the 

nature of the Claims Review staff, the 

Commission notes that the Claims 

Review Staff will be drawn from the 

Commission’s Divisions and Offices, 

other than the Office of General 

Counsel. As detailed in Rule 165.7, the 

role of Claims Review Staff is primarily 


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19The Commission will have an opportunity to 

review preliminary denial decisions that are 

contested by the claimant and all award 

recommendations. See Rule 165.7(j). 20See TAF comment letter. 

21See TAF comment letter. 

22As an example, the commenter referred to 

appeals of IRS whistleblower cases (Insinga v. 

Commissioner, Tax Court Docket No. 9011–13W 

(July 27, 2016) and Whistleblower One 10683–13W 

et al. v. Commissioner, 145 T.C. No. 8 (September 

16, 2015)) in which the whistleblower sought 

factual information in the underlying enforcement 

cases to determine whether the information the 

whistleblower provided the IRS contributed to the 

success of the enforcement action. The Commission 

believes its practice is distinguishable in that all of 

the facts that underlie the Commission’s decision 

are included in the record under Rules 165.10 and 

165.13. 

to make preliminary decisions on the 

merits of award applications including, 

if applicable, award amounts.19 Service 

by a Commission employee on the 

Claims Review Staff will be in addition 

to the other duties of the employee in 

their Division or Office. As is the case 

at the SEC, the Claims Review Staff will 

be assisted by staff from the 

Whistleblower Office who will assemble 

the factual record related to an award 

claim, provide analysis of an award 

claimant’s eligibility and, if applicable, 

make a recommendation of a proposed 

award amount. 

Awards for Related Actions 

a. Proposed Rules 

For award claims on Related Actions, 

the Commission proposed to amend 

Rule 165.11 to permit claimants who are 

eligible to receive an award in a covered 

judicial or administrative action to also 

receive an award based on the monetary 

sanctions that are collected from a final 

judgment in a Related Action. The 

exception would be that the 

Commission would not make an award 

to a claimant for a Related Action if the 

claimant has been granted an award by 

the SEC for the same action under the 

SEC’s whistleblower program. This 

would prevent a claimant from ‘‘double 

dipping’’ and receiving more than one 

award for the same action. Similarly, if 

the SEC has previously denied an award 

to a claimant in a Related Action, the 

claimant would be precluded from 

relitigating any issues before the 

Commission that the SEC resolved 

against the claimant as part of the SEC’s 

award denial. The limitations on 

obtaining an award for both Covered 

Actions and final judgments in Related 

Actions are similar to those imposed by 

the SEC in its whistleblower program. 

A Related Action under Rule 165.2(m) 

is based on the original information 

voluntarily submitted by a 

whistleblower to the Commission that 

led to the successful enforcement of a 

Commission action, and therefore, an 

action may only become a Related 

Action after there is a successful 

Commission action. The Commission 

accordingly proposed revisions to 

clarify timing requirements for filing 

whistleblower award claims regarding 

Related Actions. The proposed revisions 

were intended to clarify that, except in 

the circumstances described in 

proposed Rule 165.7(b)(3)(ii), award 

claims for a Related Action shall be filed 

within 90 days after an action meets the 

definition of Related Action if the order 

in the Related Action was issued prior 

to the successful enforcement of a 

Commission action. The proposed 

revisions also clarify that award claims 

for a Related Action and in response to 

a Notice of Covered Action may be 

submitted on the same Form WB–APP 

in certain circumstances. 

b. Comments Received 

The Commission received one 

comment regarding Proposed Rule 

165.11. The commenter expressed some 

confusion as to whether the information 

provided by a whistleblower must be 

presented to the Commission prior to 

presenting the information to another 

authority in order for a whistleblower to 

be eligible for an award in a Related 

Action.20 The commenter stated that the 

Commission should clarify that 

whistleblowers who first take their 

information to another authority and 

later provide their information to the 

Commission are eligible for an award. 

c. Final Rule 

The Commission has decided to adopt 

Rule 165.11 as proposed. The 

Commission also takes this opportunity 

to clarify that a whistleblower retains 

eligibility under Rule 165.11, Rule 

165.5, and Rule 165.2(l) for an award 

based on information provided by the 

whistleblower to another authority prior 

to the time that the whistleblower 

provided the information to the 

Commission. 

Contents of Record for Award 

Determinations 

a. Proposed Rules 

The Commission proposed to amend 

Rule 165.10(a) to identify additional 

items that may be included in the 

contents of record for award claims as 

a result of the Commission’s proposal to 

amend Rule 165.11 to permit claimants 

who are eligible to receive an award in 

a covered judicial or administrative 

action to also receive an award based on 

the monetary sanctions that are 

collected from a final judgment in a 

Related Action. For Related Actions, 

any documents or materials, including 

sworn declarations from third parties, 

that are received or obtained by the 

Whistleblower Office to assist the 

Commission in resolving the claimant’s 

award application, including 

information relating to the claimant’s 

eligibility, may be included in the 

record. In addition, any information 

provided to the Commission by the 

entity bringing the Related Action that 

has been authorized by the entity for 

sharing with the claimant may be part 

of the record. Neither of these types of 

information may be relied upon by the 

Commission or the Claims Review Staff 

in making a decision on a whistleblower 

award claim or included in the contents 

of the record if the entity did not 

authorize the Commission to share the 

information with the claimant. 

The Commission also proposed 

revisions to Rules 165.10(b) and 

165.13(b) to clarify that the record on 

appeal shall not include any predecisional or internal deliberative 

process materials that are prepared to 

assist the Commission or Claims Review 

Staff in deciding a claim. 

b. Comments Received 

The Commission received one 

comment regarding the record for award 

determinations and appeals. This 

commenter strongly urged the 

Commission to further revise Proposed 

Rules 165.10 and 165.13 to not 

categorically exclude from the record 

pre-decisional and internal deliberative 

process materials prepared to assist the 

Commission in award determinations, 

and suggested that the Commission 

would be denying whistleblowers a 

meaningful right to appeal by defining 

by rule what constitutes the record.21

c. Final Rule 

Following consideration of the 

comments received, the Commission 

has decided to adopt the revisions to 

Rules 165.10(a) and (b) and 165.13(b) as 

proposed. The Commission disagrees 

with the comment that the Commission 

defining by rule what constitutes the 

record denies a claimant a meaningful 

right to appeal award determinations.22

Under Rules 165.10 and 165.13, all 

factual materials relied on by Claims 

Review Staff or the Commission in 

making an award determination will be 

available to the claimant and reviewing 

court. The Commission believes that 

pre-decisional or internal deliberative 

process materials that are prepared to 

assist the Commission or Claims Review 

Staff from the record are protected by 

attorney-client privilege as well as 

attorney work product under well 


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23See GS2Law comment letter. 

settled law. Similarly, the exclusion of 

any documents or materials provided by 

a third-party that have not been 

authorized for release by the third-party 

does not deny the claimant due process 

because these materials will not be 

considered by the Commission or 

Claims Review Staff in reaching a 

decision on the award claim. 

Authority To Administer the Program 

a. Proposed Rule 

The Commission proposed to directly 

assign responsibilities for administering 

the program by rule rather than by 

delegation in Rule 165.15 in light of the 

proposed changes to the claims review 

process. Since 2013, the Whistleblower 

Office has been located within the 

Division of Enforcement. The 

Commission believes that it is 

appropriate to assign overall 

responsibility for administering the 

whistleblower program to the Director 

of the Division of Enforcement. The 

Commission notes that this approach is 

consistent with the SEC’s practice. 

The Commission also proposed to 

directly assign responsibility to Claims 

Review Staff for the issuance of 

Preliminary Determinations and 

Proposed Final Determinations, and 

issuance of Proposed Final Dispositions 

to the WBO. In this connection, the 

Commission proposed, again consistent 

with the SEC’s practice, that no member 

of the Claims Review Staff can have had 

any direct involvement in the 

underlying enforcement case. 

b. Comments Received 

The Commission received no 

comments regarding the proposed 

changes to the authority to administer 

the whistleblower program. 

c. Final Rule 

The Commission has decided to adopt 

the revisions to the authority to 

administer the program as proposed. 

Whistleblower Identifying Information 

a. Proposed Rule 

Rule 165.4 implements the 

confidentiality protections for 

whistleblower identifying information 

contained in Section 23(h)(2). In 

proposed Rule 165.15(a)(3), the 

Commission proposed to authorize the 

Director of the Division of Enforcement 

to act on its behalf to disclose 

whistleblower identifying information 

as permitted by Section 23(h)(2)(C) and 

Rule 165.4(a)(2) and (3). The 

Commission stated in the Proposal that 

it expects the Director of Enforcement to 

exercise this discretion to release such 

sensitive information in a manner 

consistent with, and when deemed 

necessary or appropriate to accomplish, 

the customer protection and law 

enforcement goals of the whistleblower 

program. The Commission said in the 

Proposal that it believes that this 

delegation of authority will increase 

investor protection by facilitating 

administration of the whistleblower 

program as well as investigations and 

actions by those agencies and 

authorities that are eligible to receive 

whistleblower identifying information 

under Section 23(h)(2)(C) and Rule 

165.4. Any agency or authority that 

receives whistleblower identifying 

information is bound by the same 

confidentiality requirements as those 

applicable to the Commission under 

Section 23(h)(2)(A) and such sharing of 

information does not change the 

confidential nature of the information. 

Certain information provided to other 

agencies or authorities is also protected 

from disclosure under Section 8 of the 

CEA. The Commission also proposed to 

revise a question in the Form TCR, 

question E.8, seeking consent from 

whistleblowers to share their 

information with other authorities. 

b. Comments Received 

The Commission received one 

comment opposing the proposed 

changes to Rule 165.4 and Form TCR. 

The commenter viewed the proposed 

changes as a ‘‘loosening’’ of the 

confidentiality of a whistleblower’s 

identity. In addition, the commenter 

suggested that: (1) A whistleblower 

should be entitled to know the other 

agencies with which identifying 

information is shared; (2) the scope of 

the proposal on sharing the 

whistleblower’s identifying information 

is too broad; and, (3) the Commission 

does not have the ability to monitor or 

enforce confidential treatment of the 

whistleblower’s identifying information 

once it has been shared with other 

agencies. The commenter also suggested 

that the whistleblower should be 

consulted by the Commission prior to 

any sharing of the whistleblower’s 

identifying information with other 

agencies and provided the opportunity 

to prevent such sharing because the 

whistleblower may have reported to the 

Commission rather than to another 

authority as the result of previous 

encounters with personnel at other 

agencies that left the whistleblower with 

less trust or confidence in those 

agencies. Finally, the commenter argued 

that the sharing of information with selfregulatory organizations is too broad 

because the term ‘‘self-regulatory 

organization’’ is not properly defined in 

the rules.23

c. Final Rule 

After consideration of the comment 

received, the Commission is adopting 

Rule 165.4(a)(2) as proposed, with a 

minor change. Section 23(h)(2)(C) 

provides the Commission with the 

authority to share all information 

provided by the whistleblower with the 

authorities listed in that section without 

the consent or consultation of the 

whistleblower, subject to the limitation 

that providing the whistleblower’s 

identifying information is necessary or 

appropriate to accomplish the purposes 

of the CEA and protect customers. 

Reassigning the authority to make the 

decision to disclose whistleblower 

identifying information in a manner 

permitted by Section 23(h)(2)(C) from 

the Director of the Whistleblower Office 

to a more senior Commission official, 

the Director of the Division of 

Enforcement, is not a loosening of 

whistleblower identity protections. The 

Commission believes that this 

delegation of authority will increase 

investor protection by facilitating 

administration of the whistleblower 

program as well as investigations and 

actions by those agencies and 

authorities that are eligible to receive 

whistleblower identifying information 

under Section 23(h)(2)(C) and Rule 

165.4. Section 23(h)(2)(C)(i), Rule 

165.4(a)(2), and the Privacy Act Notice 

on Form TCR identify for 

whistleblowers the entities with which 

whistleblower identifying information 

may be shared. If a potential 

whistleblower is not comfortable with 

the possibility that confidential 

information about them may be shared 

with one or more of these entities, the 

potential whistleblower can decide not 

to file a Form TCR. 

The Commission does not believe that 

Commission monitoring of the treatment 

of confidential whistleblower 

information by a receiving authority is 

necessary. As the commenter pointed 

out, receiving authorities are bound by 

the same confidentiality provisions as 

the Commission. The Commission 

makes sure that a receiving authority 

understands these limitations when it 

shares confidential whistleblower 

information with them. Further, all of 

the entities with which the Commission 

may share confidential information are 

experienced in handling and protecting 

confidential information such as 

whistleblower identifying information. 

The Commission does not agree with 

the commenter’s assertion that ‘‘selfVerDate Sep<11>2014 17:28 May 26, 2017 Jkt 241001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1

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

25See MY comment letter. 

26See MY and TAF comment letters. 

27See MY comment letter. 

28The part 165 Rules encourage whistleblowers 

to report internally prior to reporting to the 

Commission. Rule 165.2(l)(2), discussed above, 

allows a whistleblower to retain original source 

status after reporting internally. Additionally, Rule 

165.9(b)(4) includes in the factors that may increase 

the amount of an award whether and the extent to 

which a whistleblower reported the possible 

violations through internal whistleblower, legal, or 

compliance procedures before or at the same time 

as reporting those violations to the Commission, 

and whether and the extent to which a 

whistleblower assisted any internal investigation or 

inquiry concerning the reported violations. 

regulatory organization’’ is not defined. 

Section 23(h)(2)(C)(i)(III) limits the selfregulatory organizations with which 

confidential whistleblower information 

can be shared to those self-regulatory 

organizations that fit within the 

definition in section 3(a) of the 

Securities Exchange Act of 1934.24 This 

is the meaning of ‘‘self-regulatory 

organization’’ throughout Section 23 of 

the CEA and the part 165 Rules. To 

eliminate any confusion in this regard, 

the Commission is making conforming 

amendments throughout the Part 165 

Rules to clarify that a self-regulatory 

organization is a self-regulatory 

organization as defined by section 3(a) 

of the Securities Exchange Act of 1934. 

Finally, in light of the comments, the 

Commission also has determined to 

remove Question E.8 on Form TCR. The 

wording of this question was not 

consistent with the authority granted to 

the Commission to share whistleblower 

identifying information in Section 

23(h)(C)(i) and the language of Rule 

165.4(a)(2). The Privacy Act Notice in 

Form TCR puts potential whistleblowers 

on notice that the information that they 

provide to the Commission may be 

shared with other authorities. 

Retaliation Against Whistleblowers 

a. Proposed Rule 

In the Proposal, the Commission 

proposed several substantial changes to 

its anti-retaliation authority. The 

Commission proposed revisions to Rule 

165.19 and appendix A, and the 

addition of new Rule 165.20. The 

Commission proposed to amend Rule 

165.19 to prohibit a person from taking 

any action to impede an individual from 

communicating directly with the 

Commission’s staff about a possible 

violation of the CEA, including by 

enforcing, or threatening to enforce, a 

confidentiality agreement or predispute 

arbitration agreement with respect to 

such communications. The Commission 

also proposed to revise its 2011 

interpretation that it lacked statutory 

authority to bring an enforcement action 

against an employer that retaliated 

against a whistleblower. The 

Commission proposed that Sections 

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

allow the Commission to pursue such 

violations of the Act through an 

enforcement action. The Commission 

proposed Rule 165.20 to make clear that 

Section 23(h)(1)(A) of the CEA, 

including the rules in part 165 

promulgated thereunder, is enforceable 

in an action or proceeding brought by 

the Commission. Proposed Rule 

165.20(c) provides that the antiretaliation protections apply 

irrespective of whether a whistleblower 

qualifies for an award. The Commission 

also proposed changes to appendix A to 

reflect the Commission’s ability to bring 

enforcement actions to prosecute 

violations of the anti-retaliation 

prohibition of Section 23(h)(1)(A). 

b. Comments Received 

The Commission received several 

comments regarding the proposed 

revisions to the anti-retaliation 

provisions. The Commission received 

one comment letter that addressed the 

proposed revisions to Rules 165.19(b), 

165.20(b) and 165.20(c) 25 and another 

comment letter focused on proposed 

Rule 165.20(c).26

The comment on Rule 165.19(b) 

supported the proposal and noted that 

this change will more closely align the 

Commission with the SEC with respect 

to combating the chilling of 

whistleblowing by employers who 

require waivers of rewards in severance 

packages for whistleblowing. 

This commenter was similarly 

supportive of the proposed expansion of 

Commission enforcement authority to 

address retaliation against 

whistleblowers. This commenter noted 

that more substantial penalties or a 

government enforcement action would 

be more apt to deter retaliation against 

whistleblowers than only a private right 

of action. 

Both commenters asked the 

Commission to clarify its position on 

proposed Rule 165.20(c) with regard to 

taking enforcement action against 

employers that retaliate against 

whistleblowers prior to the 

whistleblower filing a Form TCR with 

the Commission. One commenter 

reiterated the point that many 

whistleblowers await the outcome of 

any internal investigation before 

providing the Commission any 

information.27 In the commenter’s view, 

it would not be fair or in the public 

interest to leave such a whistleblower 

unprotected during this interim period 

between reporting internally and filing 

a Form TCR with the Commission. This 

commenter further explained that the 

Commission taking enforcement action 

when companies or individuals retaliate 

against whistleblowing activity prior to 

the filing of a Form TCR will create 

additional incentives for employees to 

report internally before providing 

information to the Commission. 

c. Final Rule 

Having considered the fully 

supportive comment on Rules 165.19(b) 

and 165.20(b), the Commission is 

adopting these rules as proposed. The 

Commission is also re-organizing and 

making minor changes to proposed 

Appendix A to better reflect the fact that 

either the Commission or a private 

litigant can bring an action for a 

violation of Section 23(h)(1)(A). 

By adopting proposed Rule 165.20(b), 

the Commission is confirming its 

decision to revise its 2011 interpretation 

that it lacks the statutory authority to 

bring an enforcement case against an 

employer that violates the antiretaliation prohibition in Section 

23(h)(1). The 2011 interpretation failed 

to fully consider the statutory context of 

Section 23 and other CEA provisions. 

The 2011 interpretation does not 

comport with Section 23(h)(1)(A)’s 

prohibition against retaliation; the 

Commission’s broad rulemaking 

authority under Section 23(i); and, the 

Commission’s general authority to 

prosecute violations of any CEA 

provision (including Section 

23(h)(1)(A)) as well as violations of the 

Commission’s rules and orders under 

CEA sections 6(c), 6(d), 6b and 6c. 

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

empower the Commission to take 

actions for the violation of ‘‘any’’ CEA 

provision or rule or regulation 

thereunder. Although Section 

23(h)(1)(B) provides a private right of 

action, nothing in that sub-section 

purports to limit the Commission’s 

general enforcement authority or 

suggests that the private right of action 

is exclusive. 

With regard to Rule 165.20(c), the 

Commission has decided, after 

considering the comments received, to 

adopt it with some modification. The 

Commission believes these revisions 

will further encourage whistleblowers to 

report internally28 as well as deter 

retaliatory practices against 

whistleblowers. 

It would be inconsistent for the 

Commission to encourage internal 

reporting by whistleblowers and not 

extend to them anti-retaliation 


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29See GS2Law comment letter. 

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

review the determination made by the Commission 

in accordance with section 706 of title 5. 

31See 5 U.S.C. 553. 

32Whistleblower 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). 

33The 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. 

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

35 Id. 

protections to the extent the CEA 

permits. To do so would place 

whistleblowers who report internally in 

a worse position than whistleblowers 

who do not report internally prior to 

reporting to the Commission, forcing 

whistleblowers to choose between 

reporting internally first in the hopes of 

increasing any award or foregoing 

reporting internally in order to preserve 

anti-retaliation protections. 

However, the anti-retaliation 

protections in the CEA do not extend to 

all whistleblowers who report 

internally. Section 23(h) and Rule 

165.20(a) provide that the whistleblower 

in a private action or the Commission in 

an enforcement action must be able to 

show that retaliation occurred because 

of any lawful act done by the 

whistleblower in providing information 

to the Commission in accordance with 

the part 165 rules, or assisting in any 

investigation or judicial or 

administrative action of the Commission 

based upon or related to such 

information. The ability to make this 

showing will depend on the facts and 

circumstances of a particular case. 

Actions that an employer took after a 

whistleblower reported internally but 

before providing information to the 

Commission may be relevant to whether 

retaliation that is prohibited under 

Section 23(h)(1) occurred. For this 

reason, the Commission is adding 

language to Rule 165.20(b) to explicitly 

recognize this possibility. 

Payment of Awards 

a. Comment Received 

The Commission proposed no 

revisions to Rule 165.14 on the payment 

of awards. However, the Commission 

received one comment regarding the 

payment of awards.29 This commenter 

noted that the current part 165 Rules do 

not make available the payment of the 

minimum amount of an award (10%) 

until the whistleblower’s time to appeal 

has expired, and suggested that the rules 

be amended to provide for payment of 

the minimum amount of an award at the 

time the order of award is issued. This 

commenter argued that once an award 

has been ordered by the Commission, 

the Commission has admitted that there 

is an entitlement to an award and the 

Commission is estopped from later 

removing an award during the appeal 

process. In addition, this commenter 

stated that often the elapsed time 

between the whistleblower’s original tip 

and any award is measured in years, not 

weeks or months, and that waiting on 

the resolution of any appeals would 

only lengthen that timeframe. 

b. Final Rule 

The Commission declines the request 

to amend Rule 165.14 to permit 

payment of any portion of an award 

prior to the completion of the appeals 

process for all whistleblower award 

claims arising from a NCA or Related 

Action. 

Section 23(f)(2) provides that the 

Commission’s determination to whom 

to pay an award and the amount of any 

award is appealable to the appropriate 

U.S. Court of Appeals. In response to an 

appeal from a whistleblower who 

received no award from the Commission 

or who disagreed with the amount of a 

Commission award, a Court of Appeals 

could set aside the Commission’s 

decision to make an award to another 

whistleblower under the same NCA or 

Related Action if that award decision 

does not meet the applicable standard of 

review.30 This possibility makes it 

prudent for the Commission to refrain 

from paying any portion of an award 

until the completion of the appeals 

process for all whistleblower award 

claims arising from an NCA or a Related 

Action as provided in Rule 165.14(b)(2). 

As a result, the Commission is not 

making any changes to Rule 165.14 in 

response to the comment. 

Office of Consumer Outreach 

a. Amendment 

The office formerly known as the 

Office of Consumer Outreach has 

changed its name to the Office of 

Customer Education and Outreach. The 

Commission is renaming the Office in 

Rule 165.12. Because Rule 165.12 is a 

rule of the Commission’s ‘‘organization, 

procedure or practice’’ the Commission 

need not present this revision for notice 

and comment.31

Conforming and Technical 

Amendments 

a. Proposed Amendments 

To conform to the proposed changes 

to Rules 165.7 and 165.15, the 

Commission proposed to strike the 

reference to ‘‘or its delegate’’ in Rule 

165.11 in the undesignated material 

before paragraph (a). 

The Commission proposed to amend 

Rule 165.2(i)(2) concerning the 

definition of information that led to a 

successful enforcement action because it 

contains an erroneous cross-reference. 

The reference is intended to be to 

165.2(l) regarding the definition of 

original source. The rule currently refers 

to paragraph (i) of this section. 

The Commission proposed to make a 

minor change to the wording of Rule 

165.3 concerning the procedures for 

submitting original information because 

it contains an erroneous reference to a 

two-step process. This change makes the 

language conform to the process 

previously adopted.32

The Commission proposed to amend 

Rule 165.13(b) concerning appeals 

because it contains an erroneous crossreference. The reference intended is to 

Rule 165.10 regarding contents of the 

record, rather than Rule 165.9 regarding 

criteria for determining award amounts. 

The Commission proposed to move 

and include updated Form TCR and 

Form WB–APP in a new appendix B to 

part 165. The updated Form TCR and 

Form WB–APP include revisions that 

previously received information 

collection requirement approval by the 

Office of Management and Budget.33

The Commission also proposed 

revisions to the submission instructions 

portions of the forms to conform to the 

proposed revisions in the part 165 

Rules. 

Finally, the Commission proposed to 

make a minor change in the wording of 

current § 165.7(e), in addition to 

designating current paragraph (e) as new 

paragraph (l). 

b. Comments Received 

The Commission received no 

comments regarding the proposed 

conforming and technical amendments. 

c. Final Rules 

The Commission has decided to adopt 

the conforming and technical 

amendments as proposed. 

III. Related Matters 

A. Regulatory Flexibility Certification 

The Regulatory Flexibility Act 34

requires that agencies consider whether 

the rules they propose will have a 

significant economic impact on a 

substantial number of small entities 

and, if so, provide a regulatory 

flexibility analysis respecting the 

impact.35 In the Commission’s 

Proposing Release, the Chairman, on 

behalf of the Commission, certified that 


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

37The Commission believes that there is not 

likely to be any material difference between the 

amendments and the status quo baseline in terms 

of cost. 

38The Commission believes that the new rule 

provision regarding Commission enforcement does 

not significantly affect any reliance interests 

because the provision relates to conduct that is 

already prohibited by Section 23 of the CEA. 

a regulatory flexibility analysis is not 

required because the persons that would 

be subject to the rules—individuals—are 

not ‘‘small entities’’ for purposes of the 

Regulatory Flexibility Act and the rules 

therefore would not have a significant 

economic impact on a substantial 

number of small entities. The 

Commission received no comments 

regarding this conclusion. 

B. Paperwork Reduction Act 

The Paperwork Reduction Act (PRA), 

44 U.S.C. 3501–3521, imposes certain 

requirements on federal agencies 

(including the Commission) in 

connection with their conducting or 

sponsoring any collection of 

information as defined by the PRA. The 

Commission believes that the 

amendments will not impose new 

recordkeeping or information collection 

requirements that require approval by 

the Office of Management and Budget 

under the PRA. 

C. Cost-Benefit Considerations 

CEA Section 15(a) requires the 

Commission to consider the costs and 

benefits of its actions before 

promulgating a regulation under the 

CEA or issuing certain orders.36 Section 

15(a) further specifies that the costs and 

benefits shall be evaluated in light of the 

following five factors: (1) Protection of 

market participants and the public; (2) 

efficiency, competitiveness, and 

financial integrity of futures markets; (3) 

price discovery; (4) sound risk 

management practices; and (5) other 

public interest considerations. The 

Commission considers the costs and 

benefits resulting from its discretionary 

determinations with respect to the 

Section 15(a) factors. The Commission 

may in its discretion give greater weight 

to any one of the five enumerated areas 

and could in its discretion determine 

that, notwithstanding its costs, a 

particular rule is necessary or 

appropriate to protect the public interest 

or to effectuate any of the provisions or 

accomplish any of the purposes of the 

CEA. 

Since the basic framework of part 165 

remains substantially unchanged, the 

Commission believes that the costs and 

benefits of the rule amendments and the 

status quo baseline (the current rule), to 

which the rules’ costs and benefits are 

compared, are similar, but with certain 

additional benefits attendant to these 

amendments.37 The Rule 165.7 

amendments will add transparency to 

the Commission’s process of deciding 

whistleblower award claims and will 

harmonize the Commission’s rules with 

those of the SEC. The amendments 

clarify each step of the process that a 

whistleblower must follow when 

making an award claim. The 

Commission believes that such 

transparency and harmonization will 

increase the benefits of the part 165 

Rules relative to the benefits of the 

current rules because potential 

whistleblowers will have greater clarity 

about the claims and awards process 

and greater assurance that retaliation 

will not be tolerated. The Commission 

believes this clarity and protection will 

encourage whistleblowers to step 

forward. Thus, the rules should enhance 

protection of market participants and 

the public as well as market integrity 

without materially adding to the costs 

attendant to the current regime. 

The Rule 165.4 and 165.15 

amendments assign to the Director of 

the Division of Enforcement the 

authority to administer the 

whistleblower program and release 

whistleblower identifying information. 

Since these amendments relate solely to 

the Commission’s allocation of authority 

among its staff, the Commission believes 

that these changes will impose no 

material costs on market participants or 

the public. At the same time, the 

Commission believes the protection of 

market participants and the public will 

be enhanced through a more effective 

and efficient deployment of staff 

resources. 

The Rule 165.19 and 165.20 

amendments clarify the anti-retaliation 

protections available under the 

Commission’s whistleblower program in 

light of the Commission’s 

reconsideration of its authority under 

Section 23(h)(1) in conjunction with 

Sections 6(c), 6(d), 6b, 6c, and 23(i) of 

the CEA. These changes remove any gap 

in enforcement authority between the 

Commission and the SEC with regard to 

whistleblower protections against 

retaliation. The Commission believes 

that these changes will impose no 

material costs on market participants or 

the public. The rules do not impose any 

new regulatory burden.38 To comply 

with the rules, market participants must 

refrain from engaging in conduct that is 

already subject to private rights of 

action, or including certain provisions 

waiving rights and remedies or 

requiring arbitration of disputes in 

employment agreements. The 

Commission further believes that the 

rules will have a positive effect on 

efficiency, competitiveness, and 

financial integrity of the markets that 

the Commission regulates through 

improving detection and remediation of 

potential violations of the CEA and 

Commission regulations. For instance, 

market participants may be further 

deterred from engaging in violations of 

the CEA and Commission rules because 

the likelihood of being caught has 

increased due to improvements to the 

whistleblower program that encourage 

more whistleblowers to provide 

information to the Commission. 

The Commission believes that price 

discovery and sound risk management 

practices will not be materially affected 

by the amendments. Also, the 

Commission has not identified any 

other relevant public interest 

considerations. 

The Commission invited public 

comment on its cost-benefit 

considerations, including the Section 

15(a) factors described above. 

Commenters were invited to submit any 

data or other information that they had 

that quantified or qualified the costs and 

benefits of the Proposal. None of the 

commenters submitted any data or other 

information that quantified or qualified 

the costs and benefits of the proposed 

rules, nor did they otherwise comment 

on the cost-benefit considerations as 

stated in the proposed rules. 

Alternatives Suggested by Commenters 

The Commission adopts several 

alternatives and makes certain 

clarifications as suggested by 

commenters to the proposal: 

• After consideration of the 

comments on Rule 165.2(l), the 

Commission adopts the rule with one 

change and a correction. The 

Commission is adding foreign futures 

authorities to the authorities and 

entities to which a claimant may 

provide information prior to filing a 

Form TCR and retain original source 

status. 

• The Commission clarifies that the 

180-day timeframe in Rule 165.2(l)(2) 

relates only to the date on which the 

Commission will consider a 

whistleblower’s original information to 

have been received. Filing a Form TCR 

more than 180 days after reporting 

information to another authority does 

not strip a whistleblower of original 

source status or render a whistleblower 

ineligible for an award. 

• The Commission is adopting Rule 

165.4(a)(2) as proposed, with a minor 

change. Section 23(h)(2)(C)(i), Rule 

165.4(a)(2), and the Privacy Act Notice 

on Form TCR identify for 


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39 Infra, footnote 24. 40 Infra, footnote 30. 

whistleblowers the entities with which 

whistleblower identifying information 

may be shared. 

• Section 23(h)(2)(C)(i)(III) limits the 

self-regulatory organizations with which 

confidential whistleblower information 

can be shared to those self-regulatory 

organizations that fit within the 

definition in section 3(a) of the 

Securities Exchange Act of 1934.39 The 

Commission is making conforming 

amendments throughout the part 165 

Rules to clarify that a self-regulatory 

organization is a self-regulatory 

organization as defined by section 3(a) 

of the Securities Exchange Act of 1934. 

• The Commission has determined to 

remove Question E.8 on Form TCR. The 

wording of this question was not 

consistent with the authority granted to 

the Commission to share whistleblower 

identifying information in Section 

23(h)(C)(i) and the language of Rule 

165.4(a)(2). The Privacy Act Notice in 

Form TCR puts potential whistleblowers 

on notice that the information that they 

provide to the Commission may be 

shared with other authorities. 

• The Commission has decided to 

adopt Rule 165.20(c) with some 

modification. The anti-retaliation 

protections in the CEA do not extend to 

all whistleblowers who report 

internally. Actions that an employer 

took after a whistleblower reported 

internally but before providing 

information to the Commission may be 

relevant to whether retaliation that is 

prohibited under Section 23(h)(1) 

occurred. For this reason, the 

Commission is adding language to Rule 

165.20(b) to explicitly recognize this 

possibility. 

The Commission also received 

alternatives to the final rule from 

commenters that it chooses not to adopt: 

• The Commission does not elect to 

extend the deadline beyond 180 days 

under 165.2(l) to retain status as the 

original source of information after first 

submitting the information to Congress, 

any federal or state authority, a 

registered entity, a registered futures 

association, a self-regulatory 

organization, or to any persons 

described in paragraphs (g)(4) and (5) of 

Rule 165.2 to be eligible for an award. 

The Commission believes that 180 days 

provides ample time for a whistleblower 

to provide information to the 

Commission after submitting the 

information to any of the 

aforementioned entities or authorities. 

• The Commission declines a 

commenter’s request that the 

Commission publish NCAs for Related 

Actions. The Commission believes that 

doing so would be unworkable and 

burdensome for the Commission. 

Publishing NCAs on all criminal and 

civil actions that may become related 

actions would require staff to track, 

monitor, and report on many actions 

that are not Commission actions. 

• The Commission has chosen not to 

further revise Proposed Rules 165.10 

and 165.13 to not categorically exclude 

from the record pre-decisional and 

internal deliberative process materials 

prepared to assist the Commission in 

award determinations. Under Rules 

165.10 and 165.13, all factual materials 

relied on by Claims Review Staff or the 

Commission in making an award 

determination will be available to the 

claimant and reviewing court. The 

Commission believes that pre-decisional 

or internal deliberative process 

materials that are prepared to assist the 

Commission or Claims Review Staff are 

protected by attorney-client privilege as 

well as attorney work product under 

well settled law. Similarly, the 

exclusion of any documents or materials 

provided by a third-party that have not 

been authorized for release by the thirdparty does not deny the claimant due 

process because these materials will not 

be considered by the Commission or 

Claims Review Staff in reaching a 

decision on the award claim. 

• The Commission declines the 

request to amend Rule 165.14 to permit 

payment of any portion of an award 

prior to the completion of the appeals 

process for all whistleblower award 

claims arising from a NCA or related 

action. Section 23(f)(2) provides that the 

Commission’s determination to whom 

to pay an award and the amount of any 

award is appealable to the appropriate 

U.S. Court of Appeals. In response to an 

appeal from a whistleblower who 

received no award from the Commission 

or who disagreed with the amount of a 

Commission award, a Court of Appeals 

could set aside the Commission’s 

decision to make an award to another 

whistleblower under the same NCA or 

Related Action if that award decision 

does not meet the applicable standard of 

review.40 This possibility makes it 

prudent for the Commission to refrain 

from paying any portion of an award 

until the completion of the appeals 

process for all whistleblower award 

claims arising from an NCA or a related 

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

• The Commission does not believe 

that Commission monitoring of the 

treatment of confidential whistleblower 

information by a receiving authority is 

necessary. Receiving authorities are 

bound by the same confidentiality 

provisions as the Commission. The 

Commission makes sure that a receiving 

authority understands these limitations 

when it shares confidential 

whistleblower information with them. 

D. Antitrust Considerations 

Section 15(b) of the CEA requires the 

Commission to consider the public 

interests protected by the antitrust laws 

and to take actions involving the least 

anti-competitive means of achieving the 

objectives of the CEA. The Commission 

believes that the rules may have a 

positive effect on competition through 

improving detection, deterrence, and 

remediation of potential violations of 

the CEA and Commission regulations. 

The Commission did not receive any 

comments on any antitrust 

considerations arising from the 

proposed amendments. 

E. Small Business Regulatory 

Enforcement Fairness Act 

Under the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA), Pub. L. 104–121 (March 29, 

1996), as amended by Pub. L. 110–28 

(May 25, 2007), the Commission solicits 

data to determine whether a proposed 

rule constitutes a ‘‘major’’ rule. Under 

SBREFA, a rule is considered ‘‘major’’ 

where, if adopted, it results or is likely 

to result in: 

• An annual effect on the economy of 

$100 million or more (either in the form 

of an increase or a decrease); 

• A major increase in costs or prices 

for consumers or individual industries; 

or 

• Significant adverse effects on 

competition, investment or innovation. 

If a rule is ‘‘major,’’ its effectiveness 

will generally be delayed for 60 days 

pending Congressional review. 

The Commission received no 

comments or data on: The potential 

annual effect on the economy; any 

increase in costs or prices for consumers 

or individual industries; and any 

potential effect on competition, 

investment or innovation and the 

Chairman certifies that these 

amendments do not constitute a ‘‘major 

rule’’. 

List of Subjects in 17 CFR Part 165 

Whistleblowing. 

For the reasons set forth in the 

preamble, the Commodity Futures 

Trading Commission amends 17 CFR 

part 165 as follows: 

PART 165—WHISTLEBLOWER RULES 

■ 1. The authority citation for part 165 

is revised to read as follows: 

Authority: 7 U.S.C. 2, 5, 9, 12a(5), 13a, 

13a–1, 13b, and 26. 


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■ 2. In § 165.2, revise paragraphs (i)(2) 

and (3), (l)(1)(i), (l)(2), and (o) to read as 

follows: 

§ 165.2 Definitions. 

* * * * * 

(i) * * * 

(2) The whistleblower gave the 

Commission original information about 

conduct that was already under 

examination or investigation by the 

Commission, the Congress, any other 

authority of the federal government, a 

state Attorney General or securities 

regulatory authority, any registered 

entity, registered futures association, or 

self-regulatory organization (as defined 

in section 3(a) of the Securities 

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

foreign futures authority, or the Public 

Company Accounting Oversight Board 

(except in cases where the 

whistleblower was an original source of 

this information as defined in paragraph 

(l) of this section), and the 

whistleblower’s submission 

significantly contributed to the success 

of the action. 

(3) The whistleblower reported 

original information through an entity’s 

internal whistleblower, legal, or 

compliance procedures for reporting 

allegations of possible violations of law 

before or at the same time the 

whistleblower reported them to the 

Commission; the entity later provided 

the whistleblower’s information to the 

Commission, or provided results of an 

audit or investigation initiated in whole 

or in part in response to information the 

whistleblower reported to the entity; 

and the information the entity provided 

to the Commission satisfies either 

paragraph (i)(1) or (2) of this section. 

Under this paragraph (i)(3), the 

whistleblower must also submit the 

same information to the Commission in 

accordance with the procedures set 

forth in § 165.3 within 180 days of 

providing it to the entity. 

* * * * * 

(l) * * * 

(1) * * * 

(i) In order to be considered an 

original source of information that the 

Commission receives from Congress, 

any other federal, state or local 

authority, a foreign futures authority, 

any registered entity, registered futures 

association, or any self-regulatory 

organization (as defined in section 3(a) 

of the Securities Exchange Act of 1934 

(15 U.S.C. 78c(a)), the whistleblower 

must have voluntarily given such 

authorities the information within the 

meaning of this part. In determining 

whether the whistleblower is the 

original source of information, the 

Commission may seek assistance and 

confirmation from one of the other 

entities or authorities described in this 

paragraph (l)(1)(i). 

* * * * * 

(2) Information first provided to 

another authority or person. If the 

whistleblower provides information to 

Congress, any other federal, state, or 

local authority, a foreign futures 

authority, a registered entity, a 

registered futures association, a selfregulatory organization (as defined in 

section 3(a) of the Securities Exchange 

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

of the persons described in paragraphs 

(g)(4) and (5) of this section, and the 

whistleblower, within 180 days, makes 

a submission to the Commission 

pursuant to § 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 § 165.7, the Commission will 

consider that the whistleblower 

provided original information as of the 

date of the whistleblower’s original 

disclosure, report, or submission to one 

of these other authorities or persons. 

The whistleblower must establish the 

whistleblower’s status as the original 

source of such information, as well as 

the effective date of any prior 

disclosure, report, or submission, to the 

Commission’s satisfaction. The 

Commission may seek assistance and 

confirmation from the other authority or 

person in making this determination. 

* * * * * 

(o) Voluntary submission or 

voluntarily submitted. (1) The phrase 

‘‘voluntary submission’’ or ‘‘voluntarily 

submitted’’ within the context of 

submission of original information to 

the Commission under this part, shall 

mean the provision of information made 

prior to any request from the 

Commission, Congress, any other 

federal or state authority, the 

Department of Justice, a registered 

entity, a registered futures association, 

or a self-regulatory organization (as 

defined in section 3(a) of the Securities 

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

to the whistleblower or anyone 

representing the whistleblower (such as 

an attorney) about a matter to which the 

information in the whistleblower’s 

submission is relevant. If the 

Commission or any of these other 

authorities makes a request, inquiry, or 

demand to the whistleblower or the 

whistleblower’s representative first, the 

whistleblower’s submission will not be 

considered voluntary, and the 

whistleblower will not be eligible for an 

award, even if the whistleblower’s 

response is not compelled by subpoena 

or other applicable law. For purposes of 

this paragraph (o), the whistleblower 

will be considered to have received a 

request, inquiry or demand if 

documents or information from the 

whistleblower is within the scope of a 

request, inquiry, or demand that the 

whistleblower’s employer receives, 

unless, after receiving the documents or 

information from the whistleblower, the 

whistleblower’s employer fails to 

provide the whistleblower’s documents 

or information to the requesting 

authority in a timely manner. 

(2) In addition, the whistleblower’s 

submission will not be considered 

voluntary if the whistleblower is under 

a pre-existing legal or contractual duty 

to report the violations that are the 

subject of the whistleblower’s original 

information to the Commission, 

Congress, any other federal or state 

authority, the Department of Justice, a 

registered entity, a registered futures 

association, or a self-regulatory 

organization (as defined in section 3(a) 

of the Securities Exchange Act of 1934 

(15 U.S.C. 78c(a)), or a duty that arises 

out of a judicial or administrative order. 

* * * * * 

■ 3. Amend § 165.3 as follows: 

■ a. Remove the introductory text; and 

■ b. Revise paragraphs (a) introductory 

text and (a)(1). 

The revisions read as follows: 

§ 165.3 Procedures for submitting original 

information. 

(a) A whistleblower will need to 

submit the whistleblower’s information 

to the Commission. A whistleblower 

may submit the whistleblower’s 

information: 

(1) By completing and submitting a 

Form TCR online and submitting it 

electronically through the Commission’s 

Web site at http://www.cftc.gov, or the 

Commission’s Whistleblower Program 

Web site at www.whistleblower.gov; or 

* * * * * 

■ 4. In § 165.4, revise paragraphs (a) 

introductory text and (a)(1) and (2) to 

read as follows: 

§ 165.4 Confidentiality. 

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

Commodity Exchange Act requires that 

the Commission not disclose 

information that could reasonably be 

expected to reveal the identity of a 

whistleblower, except that the 

Commission may disclose such 

information in the following 

circumstances, in accordance with the 

Privacy Act of 1974 (5 U.S.C. 552a): 

(1) When disclosure is required to a 

defendant or respondent in connection 


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with a public proceeding that the 

Commission institutes or in another 

public proceeding that is filed by an 

authority to which the Commission 

provides the information, as described 

in paragraph (a)(2) of this section; or 

(2) When the Commission determines 

that it is necessary to accomplish the 

purposes of the Commodity Exchange 

Act and to protect customers, it may 

provide whistleblower information, 

without the loss of its status as 

confidential whistleblower information 

in the hands of the Commission, to: The 

Department of Justice; an appropriate 

department or agency of the Federal 

Government, acting within the scope of 

its jurisdiction; a registered entity, 

registered futures association, or a selfregulatory organization (as defined in 

section 3(a) of the Securities Exchange 

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

attorney general in connection with a 

criminal investigation; any appropriate 

State department or agency, acting 

within the scope of its jurisdiction; or a 

foreign futures authority; and, as set 

forth in section 23(h)(2)(C) of the 

Commodity Exchange Act, each such 

entity is required to maintain the 

information as confidential in 

accordance with the requirements of 

section 23(h)(2)(A) of the Commodity 

Exchange Act. 

* * * * * 

■ 5. Revise § 165.5 to read as follows: 

§ 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 § 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. 

■ 6. In § 165.6, revise paragraph (a)(1) to 

read as follows: 

§ 165.6 Whistleblowers ineligible for an 

award. 

(a) * * * 

(1) To any whistleblower who is, or 

was at the time the whistleblower 

acquired the original information 

submitted to the Commission, a 

member, officer, or employee of: the 

Commission; the Board of Governors of 

the Federal Reserve System; the Office 

of the Comptroller of the Currency; the 

Board of Directors of the Federal 

Deposit Insurance Corporation; the 

Director of the Office of Thrift 

Supervision; the National Credit Union 

Administration Board; the Securities 

and Exchange Commission; the 

Department of Justice; a registered 

entity; a registered futures association; a 

self-regulatory organization (as defined 

in section 3(a) of the Securities 

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

or a law enforcement organization; 

* * * * * 

■ 7. Amend § 165.7 as follows: 

■ a. Revise the section heading; 

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

and 

■ c. Add paragraphs (f) through (l). 

The revisions and additions read as 

follows: 

§ 165.7 Procedures for award applications 

in Commission actions and related actions, 

and Commission award determinations. 

* * * * * 

(b)(1) To file a claim for a 

whistleblower award, the whistleblower 

must file Form WB–APP, Application 

for Award for Original Information 

Provided Pursuant to Section 23 of the 

Commodity Exchange Act. The 

whistleblower must sign this form as the 

claimant and submit it to the 

Commission by mail or fax to 

Commodity Futures Trading 

Commission, Three Lafayette Centre, 

1155 21st Street NW., Washington, DC 

20581, Fax (202) 418–5975, or by 

completing and submitting the Form 

WB–APP online and submitting it 

electronically through the Commission’s 

Web site at https://www.cftc.gov or the 

Commission’s Whistleblower Program 

Web site at https://

www.whistleblower.gov. 

(2) The Form WB–APP, including any 

attachments, must be received by the 

Commission within 90 calendar days of 

the date of the Notice of Covered Action 

or 90 calendar days following the date 

of a final judgment in a Related Action 

(or if the final judgment in a Related 

Action was issued prior to the action 

meeting the definition of Related 

Action, within 90 calendar days 

following the date the action satisfied 

the definition of Related Action, except 

in the circumstances described in 

paragraph (b)(3)(ii) of this section). One 

Form WB–APP may be filed in response 

to both a Notice of Covered Action and 

final judgment in a Related Action if the 

relevant time periods are applicable. 

(3) If a covered judicial or 

administrative action and Related 

Action have different final judgment 

dates or if there is no covered judicial 

or administrative action connected to a 

Related Action, a claimant, who wishes 

to file a claim for an award in both a 

covered judicial or administrative action 

and a Related Action, or in a Related 

Action that does not have a connected 

covered judicial or administrative 

action, must follow one of the following 

procedures depending on that 

claimant’s particular situation. 

(i) If a final judgment imposing 

monetary sanctions in a Related Action 

has not been entered at the time the 

claimant submits a claim for an award 

in connection with a covered judicial or 

administrative action, the claimant must 

submit the claim for the Related Action 

on Form WB–APP within ninety (90) 

calendar days following the date of 

issuance of a final judgment in the 

Related Action. 

(ii) If a final judgment in a Related 

Action has been entered and a Notice of 

Covered Action for a related covered 

judicial or administrative action has not 

been published, a claimant for an award 

in both the covered judicial or 

administrative action and Related 

Action may submit the claims for both 

the Related Action and the covered 

judicial or administrative action within 

ninety (90) days of the date of the Notice 


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of Covered Action. The claims may be 

submitted on the same Form WB–APP. 

(iii) If there is a final judgment in a 

Related Action that relates to a judicial 

or administrative action brought by the 

Commission under the Commodity 

Exchange Act that is not a covered 

judicial or administrative action, and 

therefore there is no Notice of Covered 

Action, a claimant for an award in 

connection with the Related Action 

must submit the claim in connection 

with the Related Action on Form WB– 

APP within ninety (90) calendar days 

following either: 

(A) The date of issuance of a final 

judgment in the Related Action, if that 

date is after the date of issuance of the 

final judgment in the related 

Commission judicial or administrative 

action; or 

(B) The date of issuance of the final 

judgment in the related Commission 

judicial or administrative action, i.e., 

the date the Related Action becomes a 

Related Action, if the date of issuance 

of the final judgment in the Related 

Action precedes the final judgment in 

the related Commission judicial or 

administrative action. 

* * * * * 

(d) A claimant may withdraw a Form 

WB–APP by submitting a written 

request to the Whistleblower Office at 

any time during the review process. 

(e)(1) The Whistleblower Office may 

issue a Proposed Final Disposition for 

award applications that do not relate to 

a Notice of Covered Action, a final 

judgment in a Related Action, or a 

previously filed Form TCR without 

presentation of the award claim to the 

staff designated by the Director of the 

Division of Enforcement under 

§ 165.15(a)(2) (‘‘Claims Review Staff’’). 

In such instances, the Whistleblower 

Office will inform the award claimant in 

writing that the claim does not relate to 

a Notice of Covered Action, a final 

judgment in a Related Action, or a 

previously filed Form TCR and will be 

rejected unless the claimant provides 

additional information. The claimant 

will have 30 days from the date of the 

written notice to respond and to correct 

the identified deficiencies. If the 

claimant does not respond in 30 days or 

if the response does not include 

information showing that the WB–APP 

relates to a Notice of Covered Action, a 

final judgment in a Related Action, or a 

previously filed Form TCR the 

Whistleblower Office will issue a 

Proposed Final Disposition. The 

claimant’s failure to submit a timely 

response to the written notice from the 

Whistleblower Office will constitute a 

failure to exhaust administrative 

remedies, and the claimant will be 

prohibited from pursuing an appeal 

under § 165.13. 

(2) The Whistleblower Office will 

notify the Claims Review Staff of any 

Proposed Final Disposition under this 

paragraph (e). Within thirty (30) 

calendar days thereafter, any member of 

the Claims Review Staff may request 

that the Proposed Final Disposition be 

reviewed by the Claims Review Staff. If 

no member of the Claims Review Staff 

requests such a review within the 30- 

day period, then the Proposed Final 

Disposition will become the Final Order 

of the Commission. In the event that a 

member of the Claims Review Staff 

requests a review, the Claims Review 

Staff will review the record that the 

Whistleblower Office relied upon in 

making its determination and either 

remand to the Whistleblower Office for 

further action or issue a Final Order of 

the Commission, which could consist of 

the Proposed Final Disposition. 

(f)(1) In connection with each 

individual covered judicial or 

administrative action or final judgment 

in a Related Action, for which an award 

application is submitted, once the time 

for filing any appeals of the covered 

judicial or administrative action or the 

final judgment in the Related Action has 

expired (or, where an appeal is filed of 

the covered judicial or administrative 

action, or the final judgment in a 

Related Action, as applicable, and 

concluded), the Claims Review Staff 

designated under § 165.15(a)(2) will 

evaluate all timely whistleblower award 

claims submitted on Form WB–APP in 

response to a Notice of Covered Action, 

referenced in paragraph (a) of this 

section, or final judgment in a Related 

Action in accordance with the criteria 

set forth in this part. 

(2) The Whistleblower Office may 

require that the claimant provide 

additional information relating to the 

claimant’s eligibility for an award or 

satisfaction of any of the conditions for 

an award, as set forth in § 165.5(b)(2). 

The Whistleblower Office may also 

request additional information from the 

claimant in connection with the claim 

for an award in a Related Action to 

demonstrate that the claimant directly 

(or through the Commission) voluntarily 

provided the governmental agency, 

regulatory authority or self-regulatory 

organization the original information 

that led to the Commission’s successful 

covered action, and that the information 

provided by the claimant led to the 

successful enforcement of the Related 

Action. The Whistleblower Office may 

also, in its discretion, seek assistance 

and confirmation from the other agency 

in making this determination. 

(g)(1) Following Claims Review Staff 

evaluation, the Claims Review Staff will 

issue a Preliminary Determination 

setting forth a preliminary assessment as 

to whether the claim should be granted 

or denied and, if granted, setting forth 

the proposed award percentage amount. 

The Whistleblower Office will send a 

copy of the Preliminary Determination 

to the claimant. 

(2) The claimant may contest the 

Preliminary Determination made by the 

Claims Review Staff by submitting a 

written response to the Whistleblower 

Office setting forth the grounds for the 

claimant’s objection to either the denial 

of an award or the proposed amount of 

an award. The response must be in the 

form and manner that the 

Whistleblower Office shall require. The 

claimant may also include 

documentation or other evidentiary 

support for the grounds advanced in the 

claimant’s response. The claimant may 

also request a meeting with the 

Whistleblower Office within the 

timeframes provided in this paragraph 

(g), however such meetings are not 

required, and the Whistleblower Office 

may in its sole discretion deny the 

request. 

(i) Before determining whether to 

contest a Preliminary Determination, the 

claimant may, within thirty (30) days of 

the date of the Preliminary 

Determination, request that the 

Whistleblower Office make available for 

the claimant’s review the materials from 

among those set forth in § 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 


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24500 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 

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 § 165.13. 

(i) If the claimant submits a timely 

response under paragraph (g) of this 

section, then the Claims Review Staff 

will consider the issues and grounds 

advanced in the claimant’s response, 

along with any supporting 

documentation the claimant provided, 

and will make its Proposed Final 

Determination. 

(j) The Whistleblower Office will 

notify the Commission of each Proposed 

Final Determination. Within thirty (30) 

calendar days thereafter, any 

Commissioner may request that the 

Proposed Final Determination be 

reviewed by the Commission. If no 

Commissioner requests such a review 

within the 30-day period, then the 

Proposed Final Determination will 

become the Final Order of the 

Commission. In the event a 

Commissioner requests a review, the 

Commission will review the record that 

the staff relied upon in making its 

determinations, including the claimant’s 

submissions to the Whistleblower 

Office, and issue its Final Order. 

(k) A Preliminary Determination, 

Proposed Final Disposition, or a 

Proposed Final Determination may be 

issued only after a review for legal 

sufficiency by the Office of the General 

Counsel. 

(l) The Office of the Secretariat will 

serve the claimant with the Final Order 

of the Commission. 

■ 8. In § 165.9, revise the introductory 

text to read as follows: 

§ 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 § 165.7. 

* * * * * 

■ 9. Amend § 165.10 as follows: 

■ a. Revise the section heading; 

■ b. Remove the word ‘‘and’’ at the end 

of paragraph (a)(6); 

■ c. Remove the period at the end of 

paragraph (a)(7) and add a semicolon in 

its place; 

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

■ e. Revise paragraph (b). 

The revisions and additions read as 

follows: 

§ 165.10 Contents of record for award 

determination. 

(a) * * * 

(8) With respect to an award claim 

involving a Related Action, any 

statements or other information that an 

entity provides or identifies in 

connection with an award 

determination, provided the entity has 

authorized the Commission to share the 

information with the claimant. (Neither 

the Commission nor the Claims Review 

Staff may rely upon information that the 

entity has not authorized the 

Commission to share with the 

applicant); and 

(9) Any other documents or materials 

including sworn declarations from 

third-parties that are received or 

obtained by the Whistleblower Office to 

assist the Commission resolve the 

applicant’s award application, including 

information related to the claimant’s 

eligibility. (Neither the Commission nor 

the Claims Review Staff may rely upon 

information that a third party has not 

authorized the Commission to share 

with the claimant). 

(b) The rules in this part do not entitle 

a claimant to obtain from the 

Commission any materials (including 

any pre-decisional or internal 

deliberative process materials that are 

prepared to assist the Commission or 

Claims Review Staff in deciding the 

claim) other than those listed in 

paragraph (a) of this section. The 

Whistleblower Office may make 

redactions as necessary to comply with 

any statutory restrictions, to protect the 

Commission’s law enforcement and 

regulatory functions, and to comply 

with requests for confidential treatment 

from other law enforcement and 

regulatory authorities. 

■ 10. Revise § 165.11 to read as follows: 

§ 165.11 Awards based upon related 

actions. 

(a) Provided that a whistleblower or 

whistleblowers comply with the 

requirements in §§ 165.3, 165.5 and 

165.7, and pursuant to § 165.8, the 

Commission may grant an award based 

on the amount of monetary sanctions 

collected in a ‘‘Related Action’’ or 

‘‘Related Actions’’, where: 

(1) A ‘‘Related Action’’ is a judicial or 

administrative action that is brought by: 

(i) The Department of Justice; 

(ii) An appropriate department or 

agency of the Federal Government, 

acting within the scope of its 

jurisdiction; 

(iii) A registered entity, registered 

futures association, or self-regulatory 

organization (as defined in section 3(a) 

of the Securities Exchange Act of 1934 

(15 U.S.C. 78c(a)); 

(iv) A State criminal or appropriate 

civil agency, acting within the scope of 

its jurisdiction; or 

(v) A foreign futures authority; and 

(2) The ‘‘Related Action’’ is based on 

the original information that the 

whistleblower voluntarily submitted to 

the Commission and led to a successful 

resolution of the Commission judicial or 

administrative action. 

(b) The Commission will not make an 

award to a claimant for a final judgment 

in a Related Action if the claimant has 

already been granted an award by the 

Securities and Exchange Commission 

(SEC) for that same action pursuant to 

its whistleblower award program under 

section 21F of the Securities Exchange 

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

has previously denied an award to the 

claimant for a judgment in a Related 

Action, the whistleblower will be 

precluded from relitigating any issues 

before the Commission that the SEC 

resolved against the claimant as part of 

the award denial. 

■ 11. In § 165.12, revise paragraph (c) to 

read as follows: 

§ 165.12 Payment of awards from the 

Fund, financing of customer education 

initiatives, and deposits and credits to the 

Fund. 

* * * * * 

(c) Office of Customer Education and 

Outreach. The Commission shall 

undertake and maintain customer 

education initiatives through its Office 

of Customer Education and Outreach. 

The initiatives shall be designed to help 

customers protect themselves against 

fraud or other violations of the 

Commodity Exchange Act, or the rules 

or regulations thereunder. The 

Commission shall fund the initiatives 

and may utilize funds deposited into the 

Fund during any fiscal year in which 

the beginning (October 1) balance of the 

Fund is greater than $10,000,000. The 

Commission shall budget, on an annual 

basis, the amount used to finance 

customer education initiatives, taking 

into consideration the balance of the 

Fund. 

■ 12. Revise § 165.13 to read as follows: 

§ 165.13 Appeals. 

(a) Any Final Order of the 

Commission relating to a whistleblower 

award determination, including 

whether, to whom, or in what amount 

to make whistleblower awards, may be 

appealed to the appropriate court of 

appeals of the United States not more 

than 30 days after the Final Order of the 

Commission is issued, provided that 

administrative remedies have been 

exhausted. 


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Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 24501 

(b) The record on appeal shall consist 

of: 

(1) The Contents of Record for Award 

Determinations, as set forth in § 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 § 165.7. 

■ 13. Revise § 165.15 to read as follows: 

§ 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 

§ 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 § 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. 

■ 14. Revise § 165.19 to read as follows: 

§ 165.19 Nonenforceability of certain 

provisions waiving rights and remedies or 

requiring arbitration of disputes. 

(a) Non-waiver. The rights and 

remedies provided for in this part may 

not be waived by any agreement, policy, 

form, or condition of employment, 

including by a predispute arbitration 

agreement. No predispute arbitration 

agreement shall be valid or enforceable 

if the agreement requires arbitration of 

a dispute arising under this part. 

(b) Protected communications. No 

person may take any action to impede 

an individual from communicating 

directly with the Commission’s staff 

about a possible violation of the 

Commodity Exchange Act, including by 

enforcing, or threatening to enforce, a 

confidentiality agreement or predispute 

arbitration agreement with respect to 

such communications. 

■ 15. Add § 165.20 to read as follows: 

§ 165.20 Whistleblower anti-retaliation 

protections. 

(a) In general. No employer may 

discharge, demote, suspend, directly or 

indirectly threaten or harass, or in any 

other manner discriminate against, a 

whistleblower in the terms and 

conditions of employment because of 

any lawful act done by the 

whistleblower— 

(1) In providing information to the 

Commission in accordance with this 

part; or 

(2) In assisting in any investigation or 

judicial or administrative action of the 

Commission based upon or related to 

such information. 

(b) Anti-retaliation enforcement. 

Section 23(h)(1)(A) of the Commodity 

Exchange Act (7 U.S.C. 26(h)(1)), 

including the rules in this part 

promulgated thereunder, shall be 

enforceable in an action or proceeding 

brought by the Commission including 

where retaliation is in response to a 

whistleblower providing information to 

the Commission after reporting the 

information through internal 

whistleblower, legal or compliance 

procedures. 

(c) Protections apply regardless of 

non-qualification. The anti-retaliation 

protections apply whether or not the 

whistleblower satisfies the 

requirements, procedures, and 

conditions to qualify for an award. 

■ 16. Revise appendix A to part 165 to 

read as follows: 

Appendix A to Part 165—Guidance 

With Respect to the Protection of 

Whistleblowers Against Retaliation 

(a) In general. Section 23(h)(1) of 

Commodity Exchange Act prohibits 

employers from engaging in retaliation 

against whistleblowers. A violation of 

this provision could be addressed by a 

Commission enforcement action, or a 

lawsuit by an individual. Section 

23(h)(1)(B) provides for a federal cause 

of action brought by the whistleblower 

against the employer, which must be 

filed in the appropriate district court of 

the United States within two (2) years 

of the employer’s retaliatory act, and 

potential relief for prevailing 

whistleblowers, including 

reinstatement, back pay, and 

compensation for other expenses, 

including reasonable attorney’s fees. 

(b) Enforcement—(1) Private cause of 

action. (i) An individual who alleges 

discharge, demotion, suspension, direct 

or indirect threats or harassment, or any 

other manner of discrimination in 

violation of section 23(h)(1)(A) of the 

Commodity Exchange Act may bring an 

action under section 23(h)(1)(B) of the 

Commodity Exchange Act in the 

appropriate district court of the United 

States for the relief provided in section 

23(h)(1)(C) of the Commodity Exchange 

Act, unless the individual who is 

alleging discharge or other 

discrimination in violation of section 

23(h)(1)(A) of the Commodity Exchange 

Act is an employee of the Federal 

Government, in which case the 

individual shall only bring an action 

under section 1221 of title 5, United 

States Code. 

(ii) Subpoenas. A subpoena requiring 

the attendance of a witness at a trial or 

hearing conducted under section 

23(h)(1)(B)(ii) of the Commodity 

Exchange Act may be served at any 

place in the United States. 

(iii) Statute of limitations. A private 

cause of action under section 23(h)(1)(B) 

of the Commodity Exchange Act may 

not be brought more than 2 years after 

the date on which the violation reported 

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

Exchange Act is committed. 

(iv) Relief. Relief for an individual 

prevailing in an action brought under 

section 23(h)(1)(B) of the Commodity 

Exchange Act shall include— 

(A) Reinstatement with the same 

seniority status that the individual 

would have had, but for the 

discrimination; 

(B) The amount of back pay otherwise 

owed to the individual, with interest; 

and 

(C) Compensation for any special 

damages sustained as a result of the 

discharge or discrimination, including 

litigation costs, expert witness fees, and 

reasonable attorney’s fees. 

(2) Commission authority to bring 

action. The Commission may bring an 

enforcement action against an employer 

that retaliates against a whistleblower 

by discharge, demotion, suspension, 

direct or indirect threats or harassment, 

or any other manner of discrimination. 

■ 17. Add appendix B to part 165 to 

read as follows: 

Appendix B to Part 165—Form TCR 

and Form WP–APP 


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1. LastName 

4. Street Address 

6. City 

10. Telephone 

14. Occupation 

1. LastName 

4. Street Address 

6. City 

10. Telephone 

14. Occupation 

UNITED STATES 

COMMODITY FUTURES TRADING COMMISSION 

Washington, DC 20581 

FORMTCR 

TIP, COMPLAINT OR REFERRAL 

See attached Submission Procedures and Completion Instructions Below. 

2. First Name 

5. ApartmenUUnit # 

7. State/Province 8. ZIP/Postal Code 9. Country 

3. M.I. 

11. Alt. Phone 12. E-mail Address 13. Preferred Method of 

Communication 

2. First Name 

7. State/Province 

11. Alt. Phone 

3. M.I. 

5. ApartmenUUnit # 

8. ZIP/Postal Code 9. Country 

12. E-mail Address 13. Preferred Method of 

Communication 

Please be advised that pursuant to 5 CFR 1320.5(b)(2)(i), you are not required to respond to this collection of information 

unless it displays a currently valid OMB control number. 
Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 24503 


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1. Attorney's Name 

2. FirmName 

3. Street Address 

4. City 5. State/Province 6. ZIP/Postal Code 7. Country 

8. Telephone 9. Fax 10. E-mail Address 
24504 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 


sradovich on DSK3GMQ082PROD with RULESER30MY17.019</GPH>

1. Type: D Individual D Entity 2. If an individual, specify profession. If an entity, specify type. 

3. Name 

4. Street Address 5. Apartment/Unit# 

6. City 7. State/Province 8. ZIP/Postal Code 9. Country 

10. Telephone 11. E-mail Address 12. Internet Address 

13. If you are complaining about a firm or individual that has custody or control of your investments, have you had difficulty 

contacting that entity or individual? [] Yes [] No [] Unknown 

14. Are you, or were you, associated with the individual or firm when the alleged conduct occurred? [] Yes [] No [] Unknown 

If yes, describe how you are, or were, associated with the individual or firm you are complaining about. 

15. What was the initial form of contact between you and the person against whom you are filing this complaint? 

[]Telephone []TV Advertisement []Radio Advertisement []Internet Advertisement []E-Mail 

[]U.S. Postal Service [] Event (seminar, free lunch, ext.) [] Other 

If other, please describe: 
Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 24505 


sradovich on DSK3GMQ082PROD with RULESER30MY17.020</GPH>

1. Type: D Individual D Entity 2. If an individual, specify profession. If an entity, specify type. 

3. Name 

4. Street Address 5. Apartment/Unit# 

6. City 7. State/Province 8. ZW/Postal Code 9. Country 

10. Telephone 11. E-mail Address 12. Internet Address 

13. If you are complaining about a finn or individual that has custody or control of your investments, have you had difficulty 

contacting that entity or individual? [] Yes [] No [] Unknown 

14. Are you, or were you, associated with the individual or finn when the alleged conduct occurred? [] Yes [] No [] Unknown 

If yes, describe how you are, or were, associated with the individual or finn you are complaining about. 

15. What was the initial form of contact between you and the person against whom you are filing this complaint? 

[]Telephone []TV Advertisement []Radio Advertisement []Internet Advertisement []E-Mail 

[]U.S. Postal Service []Event (seminar, free lunch, ext.) [] Other 

If other, please describe: 
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1. Occurrence Date (mm/dd//yyyy): 2. Is the conduct on-going? 

[] Yes [] No [] Don'tKnow 

3. Please select the option(s) that best describes your complaint. 

[] Fraudulent representations that persuaded you to trade futures, options, swaps, forex, retail commodity, or leveraged transactions 

[] Some type of cheating or fraud that occurred after you had deposited funds to trade futures, options, swaps, forex, retail 

commodity, or leveraged transactions (for example, if someone used the funds you deposited to pay off someone else or you have 

asked for the return of your funds and have been refused). 

[] Someone or some firm that should be registered under the Commodity Exchange Act, but is not. 

[] Disruptive or manipulative trading activity in the futures, options or swaps markets. 

[] The trading of futures options, or swaps based upon confidential information by someone not allowed to use such information. 

[] If your complaint does not fit into any of the above-described categories please describe below. 

4. Select the type of product/instrument: 

[] A futures contract, including a single stock futures contract, a narrow based or broad based security future contract. 

[] An option on a futures contract, an option on a commodity, BUT NOT an option on a security or a basket of securities. 

[] A swap, including a mixed swap BUT NOT a swap based on a single security or based on a narrow (i.e., nine or less) index of 

securities. 

[] A cash (or physical) contract traded in interstate commerce. 

[] A foreign currency transaction. 

If a foreign currency transaction: 

o Are you an individual that trades or invests more than $10,000,000 on a discretionary basis? 

[] Yes [] No 

o Are you an individual that trades or invests more than $5,000,000 and enters into the foreign currency agreement 

to manage the risk associated with some other asset or liability? 

[] Yes [] No 
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[]A commodity transaction entered into or offered on a leveraged or margined basis, or fmanced by the offeror, the counterparty, or 

someone acting in concert with the offeror or counterparty. 

- If yes: 

0 Are you an individual that trades or invests more than $10,000,000 on a discretionary basis? 

[] Yes [] No 

0 Are you an individual that trades or invests more than $5,000,000 and enters into the foreign currency agreement 

to manage the risk associated with some other asset or liability? 

[] Yes [] No 

[]Other 

If other, please describe: 

5. If applicable, what is the name of product/investment? 

6. Have you suffered a monetary loss? []Yes []No 

If yes, describe how much. 

7. Has the individual or firm who engaged in the conduct acknowledged their fault?[] Yes []No 

8. Have you or anyone else taken any action against the firm or person who engaged in the alleged conduct? [] Yes []No 

If yes, select the appropriate category: 

[] Prior complaint to the CFTC. 

[] Complaint to another regulator. 

[]A state or federal criminal law enforcement entity. 

[] A legal action filed against the person or firm in a court oflaw. 

[]Additional comments based on above selection (e.g., Who, When, Contact, To whom made, Case Number, Court). 
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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. If necessary, please use additional sheets. 

10. Describe all supporting materials in your possession and the availability and location of any additional supporting materials not 

in your possession. If necessary, please use additional sheets. 
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1. Describe how and from whom 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. Use additional sheets, if necessary. 

2. Identify with particularity any documents or other information in your submission that you believe could reasonably be expected 

to reveal your identity and explain the basis for your belief that your identity would be revealed if the documents or information 

were disclosed to a third party. 

3. Have you or your attorney had any prior communication(s) with the CFTC concerning this matter? [] Yes [] No 

If"Yes," please identify the CFTC staffmember(s) with whom you or your attorney communicated: 

4. Have you or your attorney provided the information to any other agency or organization, or has any other agency or organization 

requested the information or related information from you? [] Yes [] No 

If"Yes," please provide details. Use additional sheets, if necessary. 

If "Yes," please provide the name and contact information of the point of contact at the other agency or organization, if known. 

5. Does this complaint relate to an entity of which you are or were an officer, director, counsel, employee, consultant or contractor? 

[] Yes [] No 
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If "Yes," have you reported this violation to your supervisor, compliance office, whistle blower hotline, ombudsman, or any other 

available mechanism at the entity for reporting violations? [] Yes [] No 

If "Yes," please provide details including the date you took the action(s ). Use additional sheets, if necessary. 

6. Have you taken any other action regarding your complaint? [] Yes [] No 

If"Yes," please provide details. Use additional sheets, if necessary. 

7. Provide any additional information that you think may be relevant. 
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1. Are you currently, or were you 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 ofthe Federal Reserve System; the Office ofthe 

Comptroller of the Currency; the Board of Directors of the Federal Deposit Insurance Corporation; the Director of the Office of 

Thrift Supervision; the National Credit Union Administration Board; the Securities and Exchange Commission; the Department 

of Justice; a registered entity; a registered futures association; a self-regulatory organization (as defmed in 3(a) of the Securities 

Exchange Act of 1934 (15 U.S.C. 78c(a)); a law enforcement organization; or a foreign regulatory authority or law enforcement 

organization? 

No 

2. Are you providing this information pursuant to a cooperation agreement with the CFTC or another agency or organization? 

[] Yes [] No 

3. Before you provided this information, did you (or anyone representing you) receive any request, inquiry or demand that 

relates to the subject matter of this submission (i) from the CFTC, (ii) in connection with an investigation, inspection or 

examination by any registered entity, registered futures association or self-regulatory organization (as defmed in 3(a) of the 

Securities Exchange Act of 1934 (15 U.S.C. 78c(a)); or (iii) in connection with an investigation by the Congress, or any other 

federal or state authority? 

No 

4. Are you currently a subject or target of a criminal investigation, or have you been convicted of a criminal violation, in 

connection with the information that you are submitting to the CFTC? 

[] Yes [] No 

5. Did you acquire the information being provided to the CFTC from any person described in Questions 1 through 4 above? 

[] Yes [] No 

6. Ifyou answered "Yes" to any of Questions 1 through 5 above, please provide details. Use additional sheets, if necessary. 
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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. This form and related information will be processed in the United States of America, the location of the CFTC. 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. The CFTC may disclose this information when required to be disclosed to a defendant or respondent in connection with 

a public proceeding instituted by the Commission. In addition, if the Commission determines such disclosure is necessary or 

appropriate to accomplish the purposes of the CEA and to protect customers, the Commission may provide such information to the 

Department of Justice; an appropriate department or agency of the Federal Government; a state attorney general; any appropriate 

department or agency of a state; a registered entity, registered futures association, or self-regulatory organization (as defmed in 

Section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)); or a foreign futures authority. Those entities are subject to 

the same confidentiality requirements as the Commission. The Commission also may disclose such information in accordance with 

Privacy Act of 1974 System of Records Notices CFTC-49, "Whistleblower Records" (exempted), CFTC-10, "Investigatory 

Records" (exempted), and CFTC-16, "Enforcement Case Files," (available on the CFTC Privacy Program web page, 

www.cftc.gov/Transparency/PrivacyOffice) exercised in accordance with the confidentiality provisions in the CEA and 17 CFR 

165.4. Furnishing information on or through this form is voluntary. However, if an individual is providing information for the 

whistle blower award program, not providing required information may result in the individual not being eligible for award 

consideration. Also, you may choose to submit this form anonymously, but in order to receive a whistleblower award, you would 

need to be identified to select CFTC staff for a fmal eligibility determination, and in unusual circumstances, you may need to be 

identified publicly for trial. [See instructions for further information.] By signing this Declaration, I am agreeing to the collection, 

processing, use, and disclosure of my personally identifiable information as stated herein. 

I declare under penalty of perjury under the laws of the United States that the information contained herein is true, correct and 

complete to the best of my knowledge, information and belief. I fully understand that I may be subject to prosecution and ineligible 

for a whistle blower award if, in my submission of information, my other dealings with the Commodity Futures Trading 

Commission, or my dealings with another authority in connection with a related action, I knowingly and willfully make any false, 

fictitious or fraudulent statements or representations, or use any false writing or document knowing that the writing or document 

contains any false, fictitious or fraudulent statement or entry. 

Print Name 

Signature Date 
Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 24513 

Submission Procedures 

Questions concerning this form may 

be directed to Commodity Futures 

Trading Commission, Whistleblower 

Office, Three Lafayette Centre, 1155 21st 

Street NW., Washington, DC 20581. 

• If you are submitting information 

for the CFTC’s whistleblower award 

program, you must submit your 

information using this Form TCR. 

• You may submit this form 

electronically, through the Web portal 

found on the CFTC’s Web site at http:// 

www.whistleblower.gov. You may also 

print this form and submit it by mail to 

Commodity Futures Trading 

Commission, Whistleblower Office, 

Three Lafayette Centre, 1155 21st Street, 

NW., Washington, DC 20581, or by 

facsimile to (202) 418–5975. 

• You have the right to submit 

information anonymously. If you do not 

submit anonymously, please note that 

the CFTC is required by law to maintain 

the confidentiality of any information 

which could reasonably identify you, 

and will only reveal such information in 

limited and specifically-defined 

circumstances. See 7 U.S.C. 26(h)(2); 17 

CFR 165.4. However, in order to receive 

a whistleblower award, you will need to 

be identified to select CFTC staff for a 

final eligibility determination, and in 

unusual circumstances, you may need 

to be identified publicly for trial. You 

should therefore provide some means 

for the CFTC’s staff to contact you, such 

as a telephone number or an email 

address. 

Instructions for Completing Form TCR 

General 

All references to ‘‘you’’ and ‘‘your’’ 

are intended to mean the complainant. 

Section A: Tell Us About Yourself 

Questions 1–14: Please provide the 

following information about yourself: 

b last name, first name and middle 

initial; 

b complete address, including city, 

state and zip code; 

b telephone number and, if available, 

an alternate number where you can 

be reached; 

b your email address (to facilitate 

communications, we strongly 

encourage you to provide an email 

address, especially if you are filing 

anonymously); 

b your preferred method of 

communication; and 

b 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: 

b attorney’s name; 

b firm name; 

b complete address, including city, 

state and zip code; 

b telephone number and fax number; 

and 

b 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: 

b full name; 

b complete address, including city, 

state and zip code; 

b telephone number; 

b email address; and 

b 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 


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24514 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 

than one violation, please list all that 

you believe may apply. 

Question 4: Select the type of product 

or instrument you are complaining 

about. 

Question 5: If applicable, please name 

the product or instrument. If yes, please 

describe. 

Question 6: Identify whether you have 

suffered a monetary loss. If yes, please 

describe. 

Question 7: Identify if the individual 

or firm you are complaining about 

acknowledged their fault. 

Question 8: Indicate whether you 

have taken any other action regarding 

your complaint, including whether you 

complained to the CFTC, another 

regulator, a law enforcement agency, or 

any other agency or organization, or 

initiated legal action, mediation, 

arbitration or any other action. 

If you answered yes, provide details, 

including the date on which you took 

the action(s) described, the name of the 

person or entity to whom you directed 

any report or complaint, and contact 

information for the person or entity, if 

known, and the complete case name, 

case number and forum of any legal 

action you have taken. 

Question 9: State in detail all facts 

pertinent to the alleged violation. 

Explain why you believe the facts 

described constitute a violation of the 

Commodity Exchange Act. 

Question 10: Describe all supporting 

materials in your possession and the 

availability and location of any 

additional supporting materials not in 

your possession. 

Section E: Whistleblower Program 

Question 1: Describe how you 

obtained the information that supports 

your allegations. If any information was 

obtained from an attorney or in a 

communication where an attorney was 

present, identify such information with 

as much particularity as possible. In 

addition, if any information was 

obtained from a public source, identify 

the source with as much particularity as 

possible. 

Question 2: Identify any documents or 

other information in your submission on 

this Form TCR that you believe could 

reasonably be expected to reveal your 

identity. Explain the basis for your 

belief that your identity would be 

revealed if the documents or 

information were disclosed to a third 

party. 

Question 3: State whether you or your 

attorney have had any prior 

communication(s) with the CFTC 

concerning this matter. 

If you answered ‘‘yes’’, identify the 

CFTC staff member(s) with whom you 

or your attorney communicated. 

Question 4: Indicate whether you or 

your attorney have provided the 

information you are providing to the 

CFTC to any other agency or 

organization, or whether any other 

agency or organization has requested the 

information or related information from 

you. 

If you answered ‘‘yes’’, provide details 

and the name and contact information 

of the point of contact at the other 

agency or organization, if known. 

Question 5: Indicate whether your 

complaint relates to an entity of which 

you are, or were in the past, an officer, 

director, counsel, employee, consultant 

or contractor. 

If you answered ‘‘yes’’, state whether 

you have reported this violation to your 

supervisor, compliance office, 

whistleblower hotline, ombudsman, or 

any other available mechanism at the 

entity for reporting violations. Please 

provide details, including the date on 

which you took the action. 

Question 6: Indicate whether you 

have taken any other action regarding 

your complaint, including whether you 

complained to the CFTC, another 

regulator, a law enforcement agency, or 

any other agency or organization, or 

initiated legal action, mediation, 

arbitration or any other action. 

If you answered ‘‘yes’’, provide 

details, including the date on which you 

took the action(s) described, the name of 

the person or entity to whom you 

directed any report or complaint, and 

contact information for the person or 

entity, if known, and the complete case 

name, case number and forum of any 

legal action you have taken. 

Question 7: Provide any additional 

information you think may be relevant. 

Section F: Whistleblower Eligibility 

Requirements and Other Information 

Question 1: State whether you are 

currently, or were at the time that you 

acquired the original information that 

you are submitting to the CFTC, a 

member, officer or employee of: The 

CFTC; the Board of Governors of the 

Federal Reserve System; the Office of 

the Comptroller of the Currency; the 

Board of Directors of the Federal 

Deposit Insurance Corporation; the 

Director of the Office of Thrift 

Supervision; the National Credit Union 

Administration Board; the Securities 

and Exchange Commission; the 

Department of Justice; a registered 

entity; a registered futures association; a 

self-regulatory organization (as defined 

in 3(a) of the Securities Exchange Act of 

1934 (15 U.S.C. 78c(a)); a law 

enforcement organization; or a foreign 

regulatory authority or law enforcement 

organization. 

Question 2: State whether you are 

providing the information pursuant to a 

cooperation agreement with the CFTC or 

with another agency or organization. 

Question 3: State whether you are 

providing this information before you 

(or anyone representing you) received 

any request, inquiry or demand that 

relates to the subject matter of this 

submission (i) from the CFTC, (ii) in 

connection with an investigation, 

inspection or examination by any 

registered entity, registered futures 

association or self-regulatory 

organization (as defined in 3(a) of the 

Securities Exchange Act of 1934 (15 

U.S.C. 78c(a)), or (iii) in connection 

with an investigation by the Congress, 

or any other federal or state authority. 

Question 4: State whether you are 

currently a subject or target of a criminal 

investigation, or whether you have been 

convicted of a criminal violation, in 

connection with the information you are 

submitting to the CFTC. 

Question 5: State whether you 

acquired the information you are 

providing to the CFTC from any 

individual described in Questions 1 

through 4 of this section. 

Question 6: If you answered yes to 

any of Questions 1 through 5, please 

provide details. 

Section G: Privacy Notice and 

Whistleblower’s Declaration 

You must sign this Declaration if you 

are submitting this information 

pursuant to the CFTC whistleblower 

program and wish to be considered for 

an award. If you are submitting your 

information using the electronic version 

of Form TCR through the CFTC’s web 

portal, you must check the box to agree 

with the declaration. If you are 

submitting your information 

anonymously, you must still sign this 

Declaration (using the term 

‘‘anonymous’’) or check the box as 

appropriate, and, if you are represented 

by an attorney, you must provide your 

attorney with the original of this signed 

form, or maintain a copy for your own 

records. 

Section H: Counsel Certification 

If you are submitting this information 

pursuant to the CFTC whistleblower 

program and you are doing so 

anonymously through an attorney, your 

attorney must sign the Counsel 

Certification Section. If your attorney is 

submitting your information using the 

electronic version of Form TCR through 

the CFTC’s web portal, he/she must 

check the box to agree with the 


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Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 24515 

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. 


sradovich on DSK3GMQ082PROD with RULESER30MY17.029</GPH>

UNITED STATES 

COMMODITY FUTURES TRADING COMMISSION 

Washington, DC 20581 

FORMWB-APP 

APPLICATION FOR AWARD FOR ORIGINAL INFORMATION PROVIDED 

PURSUANT TO SECTION 23 OF THE COMMODITY EXCHANGE ACT 

1. LastName First Name M.I. SSN Last Four Digits 

2. Street Address Apartment/Unit # 

City State/Province ZIP/Postal Code Country 

3. Telephone Alt. Phone E-mail Address 

1. Attorney's Name 

2. FirmName 

3. Street Address 

City State/Province Zip/Postal Code Country 

4. Telephone Fax E-mail Address 

Please be advised that pursuant to 5 CFR 1320.5(b)(2)(i), you are not required to respond to this collection of information 

unless it displays a currently valid OMB control number. 
24516 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 


sradovich on DSK3GMQ082PROD with RULESER30MY17.030</GPH>

la. How did you submit original information to the CFTC? lb. Date that you submitted the information (mrn!dd/yyyy) 

Website D Mail D Fax D Other D 

2a. Did you file a CFTC Form TCR? YES D NO D 

2b. Form TCR Number 2c. Date that you filed your Form TCR (mm/ddlyyyy) 

3. Name(s) of the individual(s) and/or entity(s) to which your tip or complaint relates 

1. Date of relevant Notice of Covered Action (mrn!ddlyyyy) 2. Notice Number 

3a. Case Name 3b. Case Number 

1. Name of other agency or organization to which you provided your information 

2. Name and contact information for point of contact at the agency or organization, if known 

3a. Date that you provided the information (mrn!dd/yyyy) 3b. Date of action by the agency or organization (mrn!dd/yyyy) 

4a. Case N arne 4b. Case Number 
Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 24517 


sradovich on DSK3GMQ082PROD with RULESER30MY17.031</GPH>

1. Are you currently, or were you 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? 

YES D NOD 

2. Did you provide the information identified in Section C above pursuant to a cooperation agreement with the CFTC or another 

agency or organization? 

YES D NOD 

3. Before you provided the information identified in Section C above, did you (or anyone representing you) receive 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? 

YES D NOD 

4. Are you currently a subject or target of a criminal investigation, or have you been convicted of a criminal violation, in 

connection with the information identified in Section C above and upon which your application for an award is based? 

YES D NOD 

5. Did you acquire the information that you provided to the CFTC from any person described in Questions 1 through 4 above? 

YES D NOD 

6. If you answered "Yes" to any of Questions 1 through 5 above, please provide details. Use additional sheets, if necessary. 
24518 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 


sradovich on DSK3GMQ082PROD with RULESER30MY17.032</GPH>

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 or organization in a related action. Provide any additional information that you think may be relevant in light 

of the criteria for determining the amount of an award set forth in Section 23 of the Commodity Exchange Act and Part 165 of the 

CFTC's regulations. Include any supporting documents in your possession or control, and use additional sheets, if necessary. 
Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 24519 

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. 

Æ 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 


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24520 Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 

judgment in a related action to which 

the claim relates. 

Æ If you are filing your claim in 

connection with information that you 

provided to another agency or 

organization in a related action, then 

your Form WB–APP, and any 

attachments thereto, must be received 

by the CFTC as follows: 

• If a final order imposing monetary 

sanctions has been entered in a related 

action at the time that you submit your 

claim for an award in connection with 

a CFTC action, you may submit your 

claim for an award in that related action 

on the same Form WB–APP that you use 

for the CFTC action. 

• If a final order imposing monetary 

sanctions in a related action has not 

been entered at the time that you submit 

your claim for an award in connection 

with a CFTC action, you must submit 

your claim on Form WB–APP within 

ninety (90) days of the issuance of a 

final order imposing sanctions in the 

related action. 

• If a final order imposing monetary 

sanctions in a related action relates to a 

judicial or administrative action brought 

by the Commission under the 

Commodity Exchange Act that is not a 

covered judicial or administrative 

action, and therefore there would not be 

a Notice of Covered Action, you must 

submit your claim on Form WB–APP for 

an award in connection with the related 

action within ninety (90) calendar days 

following either (1) the date of issuance 

of a final order in the related action, if 

that date is after the date of issuance of 

the final judgment in the related 

Commission judicial or administrative 

action; or (2) the date of issuance of the 

final judgment in the related 

Commission judicial or administrative 

action, i.e., the date the related action 

becomes a related action, if the date of 

issuance of the final order in the related 

action precedes the final judgment in 

the related Commission judicial or 

administrative action. 

• To submit your Form WB–APP, you 

may print it and either submit it by mail 

to Commodity Futures Trading 

Commission, Whistleblower Office, 

Three Lafayette Centre, 1155 21st Street 

NW., Washington, DC 20581, or by 

facsimile to (202) 418–5975. You also 

may submit this form electronically, 

through the web portal found on the 

CFTC’s Web site at http://www.cftc.gov, 

which is also accessible from the CFTC 

Whistleblower Program Web site at 

www.whistleblower.gov. 

Instructions for Completing Form WB– 

APP 

General 

All references to ‘‘you’’ and ‘‘your’’ 

are intended to mean the whistleblower 

award claimant. 

Section A: Tell Us About Yourself 

Questions 1–3: Please provide the 

following information about yourself: 

• last name, first name, middle initial 

and the last four digits of your 

Social Security Number; 

• complete address, including city, 

state and zip code; 

• telephone number and, if available, 

an alternate number where you can 

be reached; and 

• your email address (to facilitate 

communications, we strongly 

encourage you to provide an email 

address, especially if you are 

making your claim anonymously). 

Section B: Your Attorney’s Information 

Complete this section only if you are 

represented by an attorney in this 

matter. Questions 1–4: Provide the 

following information about your 

attorney: 

• attorney’s name; 

• firm name; 

• complete address, including city, 

state and zip code; 

• telephone number and fax number; 

and 

• email address. 

Section C: Tell Us About Your Tip or 

Complaint 

Question 1a: Indicate the manner in 

which you submitted your original 

information to the CFTC. 

Question 1b: Provide the date on 

which you submitted your original 

information to the CFTC. 

Question 2a: State whether you filed 

a CFTC Form TCR. 

Question 2b: If you filed a CFTC Form 

TCR, provide the Form’s number. 

Question 2c: If you filed a CFTC Form 

TCR, provide the date on which you 

filed the Form. 

Question 3: Provide the name(s) of the 

individual(s) and/or entity(s) to which 

your tip or complaint relates. 

Section D: Notice of Covered Action 

The process for making a claim for a 

whistleblower award for a CFTC action 

begins with the publication of a ‘‘Notice 

of Covered Action’’ on the CFTC’s Web 

site. This Notice is published whenever 

a judicial or administrative action 

brought by the CFTC results in the 

imposition of monetary sanctions 

exceeding $1,000,000. The Notice is 

published on the CFTC’s Web site 

subsequent to the entry of a final 

judgment or order in the action that by 

itself, or collectively with other 

judgments or orders previously entered 

in the action, exceeds the $1,000,000 

threshold required for a whistleblower 

to be potentially eligible for an award. 

The CFTC will not contact 

whistleblower claimants directly as to 

Notices of Covered Actions; prospective 

claimants should monitor the CFTC 

Web site for such Notices. 

Question 1: Provide the date of the 

Notice of Covered Action to which this 

claim relates. 

Question 2: Provide the notice 

number of the Notice of Covered Action. 

Question 3a: Provide the case name 

referenced in the Notice of Covered 

Action. 

Question 3b: Provide the case number 

referenced in the Notice of Covered 

Action. 

Section E: Claims Pertaining to Related 

Actions 

Question 1: Provide the name of the 

agency or organization to which you 

provided your information. 

Question 2: Provide the name and 

contact information for your point of 

contact at the agency or organization, if 

known. 

Question 3a: Provide the date on 

which you provided your information to 

the agency or organization referenced in 

Question 1 of this section. 

Question 3b: Provide the date on 

which the agency or organization 

referenced in Question 1 of this section 

filed the related action that was based 

upon the information that you provided. 

Question 4a: Provide the case name of 

the related action. 

Question 4b: Provide the case number 

of the related action. 

Section F: Eligibility Requirements and 

Other Information 

Question 1: State whether you are 

currently, or were at the time that you 

acquired the original information that 

you submitted to the CFTC, a member, 

officer or employee of: The CFTC; the 

Board of Governors of the Federal 

Reserve System; the Office of the 

Comptroller of the Currency; the Board 

of Directors of the Federal Deposit 

Insurance Corporation; the Director of 

the Office of Thrift Supervision; the 

National Credit Union Administration 

Board; the Securities and Exchange 

Commission; the Department of Justice; 

a registered entity; a registered futures 

association; a self-regulatory 

organization; a law enforcement 

organization; or a foreign regulatory 

authority or law enforcement 

organization. 


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Federal Register / Vol. 82, No. 102 / Tuesday, May 30, 2017 / Rules and Regulations 24521 

Question 2: State whether you 

provided the information that you 

submitted to the CFTC pursuant to a 

cooperation agreement with the CFTC, 

or with any other agency or 

organization. 

Question 3: State whether you 

provided this information before you (or 

anyone representing you) received any 

request, inquiry or demand that relates 

to the subject matter of your submission 

(i) from the CFTC, (ii) in connection 

with an investigation, inspection or 

examination by any registered entity, 

registered futures association or selfregulatory 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 

§ 165.9 of the CFTC’s regulations for 

further information concerning the 

relevant award criteria. 

Section 23(c)(1)(B) of the Commodity 

Exchange Act and § 165.9(a) of the 

CFTC’s regulations require the CFTC to 

consider the following factors in 

determining the amount of an award: (1) 

The significance of the information 

provided by a whistleblower to the 

success of the CFTC action or related 

action; (2) the degree of assistance 

provided by the whistleblower and any 

legal representative of the whistleblower 

in the CFTC action or related action; (3) 

the programmatic interest of the CFTC 

in deterring violations of the 

Commodity Exchange Act (including 

regulations under the Act) by making 

awards to whistleblowers who provide 

information that leads to the successful 

enforcement of such laws; (4) whether 

the award otherwise enhances the 

CFTC’s ability to enforce the 

Commodity Exchange Act, protect 

customers, and encourage the 

submission of high quality information 

from whistleblowers; and (5) potential 

adverse incentives from oversize 

awards. Address these factors in your 

response as well. 

Section H: Claimant’s Declaration 

You must sign this Declaration if you 

are submitting this claim pursuant to 

the CFTC whistleblower program and 

wish to be considered for an award. If 

you are submitting your claim 

anonymously, you must do so through 

an attorney, and you must provide your 

attorney with your original signed Form 

WB–APP. 

Section I: Counsel Certification 

If you are submitting this claim 

pursuant to the CFTC whistleblower 

program anonymously, you must do so 

through an attorney, and your attorney 

must sign the Counsel Certification 

Section. 

Issued in Washington, DC, on May 22, 

2017, by the Commission. 

Christopher J. Kirkpatrick, 

Secretary of the Commission. 

Note: The following appendix will not 

appear in the Code of Federal Regulations. 

Appendix to Whistleblower Awards 

Process—Commission Voting Summary 

On this matter, Acting Chairman Giancarlo 

and Commissioner Bowen voted in the 

affirmative. No Commissioner voted in the 

negative. 

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

BILLING CODE 6351–01–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Parts 28, 30, 87, 180, and 3282 

[Docket No. FR–5942–F–02] 

RIN 2501–AD79 

Inflation Catch-Up Adjustment of Civil 

Monetary Penalty Amounts Final Rule 

and Adjustment of Civil Monetary 

Penalty Amounts for 2017 

AGENCY: Office of the General Counsel, 

HUD. 

ACTION: Final rule. 

SUMMARY: This rule makes final the 

interim final rule, published on June 15, 

2016, to amend HUD’s civil monetary 

penalty (CMP) regulations. The interim 

final rule applied a new methodology to 

calculate civil money penalties as 

mandated by the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015, starting with a ‘‘catch up’’ 

adjustment to correct previous 

inaccuracies; removed three obsolete 

civil monetary penalty provisions; and 

made a technical change to the existing 

codified regulation implementing the 

Program Fraud Civil Remedies Act. The 

changes from the interim final rule 

made final by this final rule continue to 

be effective as of August 16, 2016. 

In addition, this rule provides for 

2017 inflation adjustments of civil 

monetary penalty amounts required by 

the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015, and makes three technical 

amendments and a conforming statutory 

change. 

DATES: Effective date: June 29, 2017. 

Applicability date: The applicability 

date for catch-up adjustment was 

August 16, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Dane Narode, Associate General 

Counsel, Office of Program 

Enforcement, Department of Housing 

and Urban Development, 1250 

Maryland Avenue SW., Suite 200, 

Washington, DC 20024; telephone 

number 202–245–4141 (this is not a tollfree number). Hearing- or speechimpaired individuals may access this 

number via TTY by calling the Federal 

Information Relay Service, toll-free, at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. The June 15, 2016, Interim Rule 

The Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (2015 Act) (Pub. L. 114–74) 

amended the Federal Civil Penalties 

Inflation Adjustment Act of 1990 (28 

U.S.C. 2461 note) requiring all Federal 

agencies to issue an interim final rule 

implementing changes to their civil 

money penalties. On June 15, 2016, 

pursuant to the requirements of the 

2015 Act, HUD published an interim 

final rule for public comment, entitled 

‘‘Inflation Catch-Up Adjustment of Civil 

Monetary Penalty Amounts’’ (81 FR 

38931). The 2015 Act required agencies 

to make an initial catch-up adjustment 

by interim final rule, using a new 

methodology designed to correct 

inaccuracies in the previous method of 

computing inflation adjustments. In 

order to address these inaccuracies, the 

2015 Act excluded adjustments made 

under the law prior to its amendment, 

and it provided that the initial catch-up 

adjustment was the percentage by which 


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