The CFTC requested comment on a proposal to (i) amend regulations in order to enhance the agency's process for reviewing whistleblower claims, (ii) make related amended changes in order to clarify staff's authority to administer the whistleblower program, and (iii) amend the interpretation of its anti-retaliation authority. The CFTC's proposal was published in the Federal Register.
The CFTC proposed substantive changes including targeted revisions to the claims review process and permitting whistleblowers to receive awards for related legal actions as well as for successful CFTC enforcement actions. Other proposed changes include the following:
- allowing claimants to be eligible for awards when they provide original information without being the original sources of the information;
- revising the definition of "original source" to extend the timeframe during which a whistleblower must file a Form TCR from 120 to 180 days;
- providing notice that the CFTC has the discretion to waive procedural rules based on a showing of extraordinary circumstances;
- specifying each step in the whistleblower award review process in order to "establish a review process similar to that established under the SEC's whistleblower rules";
- prohibiting the "enforcement of confidentiality and pre-dispute arbitration clauses respecting actions by potential whistleblowers in any pre-employment, employment or post-employment agreements";
- prohibiting employers from threatening, harassing or retaliating against individuals who participate in the CFTC's whistleblower program whether or not those individuals qualify for awards, or report issues internally before providing the CFTC with information; and
- reinterpreting the CFTC's anti-retaliation authority in order to ensure that whistleblowers enjoy protection from retaliation due to CFTC enforcement actions.
The CFTC observed that the targeted changes it proposed were informed by the SEC experience in administrating the whistleblower program. In a Notice of Proposed Rulemaking, the CFTC emphasized the importance of the proposal for vulnerable whistleblowers:
By today's action, the Commission is taking a necessary step to end the incongruous situation where whistleblowers enjoy protection from retaliation through SEC enforcement action under the securities laws, but no such protection through Commission enforcement action under the CEA.
Comments on the proposal must be submitted by September 29, 2016.
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