Commodity Futures Trading Commission ♦ Office of Public Affairs ♦ 202-418-5080 

Commodity Futures Trading Commission

Office of Public Affairs

Three Lafayette Centre

1155 21st Street, NW

Washington, DC 20581

www.cftc.gov

May 22, 2017

Strengthening Anti-Retaliation Protections for Whistleblowers and Enhancing 

the Award Claims Review Process

The Commodity Futures Trading Commission (CFTC or Commission) adopted amendments that strengthen antiretaliation protections for whistleblowers and enhance the award claims review process.

Background: The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) 

established a whistleblower program at the CFTC. The CFTC’s Whistleblower Program provides 

monetary incentives to individuals who report possible violations of the Commodity Exchange Act 

(CEA) that lead to a successful enforcement action, as well as privacy, confidentiality, and antiretaliation protections for whistleblowers who share information with or assist the CFTC.

Section 748 of the Dodd-Frank Act amended the CEA by adding a new Section 23, titled “Commodity 

Whistleblower Incentives and Protection” and codified at 7 U.S.C. § 26. Section 23 directs that the Commission 

must pay 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 successful enforcement of an 

action brought by the Commission that results in monetary sanctions exceeding $1,000,000, and of Related Actions. 

On August 25, 2011, the Commission adopted Part 165 of its Regulations to implement Section 23 of the CEA 

(Whistleblower Rules). 

Today’s amendments leave the basic framework of Part 165 substantially unchanged, but they strengthen antiretaliation protections for whistleblowers and add transparency to the Commission’s process of deciding 

whistleblower award claims. The amendments also harmonize the Commission’s Whistleblower Rules with those of 

the SEC in many respects. Specifically, the amendments make the following key changes or clarifications:

Final Rules Regarding Retaliation and Improper Employer Confidentiality Agreements

• A person may not take 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 pre-dispute arbitration agreement with respect to such communications. [Rule 

165.19]

• The Commission has authority to bring an action against an employer who retaliates against a whistleblower, 

irrespective of whether the whistleblower qualifies for an award. A whistleblower continues to have the 

right to pursue a private cause of action against such an employer. [Rule 165.20; Appendix A to Part 165] 

• Actions that an employer took after a whistleblower reported internally but before providing information to 

the Commission may be relevant to whether prohibited retaliation occurred. [Rule 165.20(b)]

Final Rules Regarding Eligibility Requirements

• A whistleblower may be eligible for an award by providing the Commission original information without 

being the original source of the information. [Rule 165.5(b)] 
Commodity Futures Trading Commission ♦ Office of Public Affairs ♦ 202-418-5080 

• A whistleblower retains eligibility for an award based on information provided by the whistleblower to 

certain specified persons or authorities, now to include foreign futures authorities, prior to the time that the 

whistleblower provided the information to the Commission. [Rule 165.2(i)(2); Rule 165.2(l)(2)]

• Where a whistleblower first provides information to certain specified persons or authorities before reporting 

to the Commission, the timeframe for a whistleblower to submit a Form TCR (Tip, Complaint or Referral) 

to the Commission has been extended from 120 days to 180 days. If a whistleblower submits a Form TCR 

within this 180-day period after reporting to the other person or authority, the Commission will consider the 

whistleblower to have provided information to the Commission as of the date of the whistleblower’s 

original disclosure to the other person or authority. [Rule 165.2(i)(3); Rule 165.2(l)(2)]

• The Commission may waive its procedural requirements based upon a showing of extraordinary 

circumstances. [Rule 165.5(c)]

Final Rules Regarding Awards for Related Actions

• A whistleblower may receive an award in a covered judicial or administrative action, in a Related Action (as 

those terms are defined in the Regulations), or both. [Rule 165.5(a)(3); Rule 165.11(a)]

• But the Commission will not make an award to a whistleblower for a Related Action if the whistleblower 

has been granted an award by the SEC for the same action under the SEC’s whistleblower program. [Rule 

165.11(b)]

Final Rules Regarding Award Claims Review

• The required Form WB-APP may be submitted electronically through the Commission’s website at 

https://www.cftc.gov or the Commission’s Whistleblower Program website at 

https://www.whistleblower.gov. A Form WB-APP must be received by the Commission within 90 days of 

the date of the Notice of Covered Action or 90 days following the date of a final judgment in a Related 

Action. [Rule 165.7(b)(1)]

• The Commission will replace the Whistleblower Award Determination Panel with a Claims Review Staff 

and introduce additional steps in the claims review process. [Rule 165.15(a)(2); Rule 165.7(f) – (l)]

o The enhanced review process will be similar to that established under the SEC’s own whistleblower 

rules and includes issuance of a Preliminary Determination by the Claims Review Staff setting forth 

a preliminary assessment as to whether an award claim should be granted or denied. 

o A whistleblower will have an opportunity to contest the Preliminary Determination before the 

Commission issues a Final Determination. 

• The Whistleblower Office will handle facially ineligible award claims that do not relate to a Notice of 

Covered Action, a final judgment in a Related Action, or a previously filed Form TCR through a streamlined 

process. [Rule 165.7(e)]

• A whistleblower may withdraw a Form WB-APP at any point in the review process by submitting a written 

request to the Whistleblower Office. [Rule 165.7(d)]

• The Director of Enforcement has general authority to administer the whistleblower program. [165.15(b)] 

Final Rules Regarding Contents of Record for Award Determinations

• Any documents or materials received or obtained by the Whistleblower Office to assist the Commission in 

resolving a whistleblower’s award claim pertaining to a Related Action may be included in the record, as 
Commodity Futures Trading Commission ♦ Office of Public Affairs ♦ 202-418-5080 

long as the entity bringing the Related Action has authorized the Commission to share the information with 

the whistleblower. [Rule 165.10(a)]

• The record on appeal includes the Preliminary Determination and Final Order of the Commission, but not 

any pre-decisional or internal deliberative process materials that are prepared to assist the Commission or 

the Claims Review Staff in deciding a claim. [Rule 165.10(b); 165.13(b)]

• A whistleblower may request a copy of the record after the Preliminary Determination has been issued and 

prior to the Commission issuing a Final Determination on the whistleblower’s claim. A whistleblower must 

enter into a confidentiality agreement if requested by the Whistleblower Office. [Rule 165.7(g)(2)]

Final Rules Regarding Whistleblower Identifying Information

• The Director of Enforcement may disclose whistleblower identifying information when deemed necessary 

or appropriate to the authorities listed in Section 23 of the CEA to accomplish the customer protection and 

law enforcement goals of the whistleblower program. [Rule 165.4(a); 165.15(a)(3)]