7 USC 26 - Commodity whistleblower incentives and protection

View all text of Chapter 1 [§ 1 - § 27f]

§ 26. Commodity whistleblower incentives and protection

(a) DefinitionsIn this section:

(1) Covered judicial or administrative action

(2) Fund

(3) Monetary sanctionsThe term “monetary sanctions”, when used with respect to any judicial or administrative action means—

(A) any monies, including penalties, disgorgement, restitution, and interest ordered to be paid; and

(B) any monies deposited into a disgorgement fund or other fund pursuant to section 7246(b) of title 15, as a result of such action or any settlement of such action.

(4) Original informationThe term “original information” means information that—

(A) is derived from the independent knowledge or analysis of a whistleblower;

(B) is not known to the Commission from any other source, unless the whistleblower is the original source of the information; and

(C) is not exclusively derived from an allegation made in a judicial or administrative hearing, in a governmental report, hearing, audit, or investigation, or from the news media, unless the whistleblower is a source of the information.

(5) Related action

(6) Successful resolution

(7) Whistleblower

(b) Awards

(1) In generalIn any covered judicial or administrative action, or related action, the Commission, under regulations prescribed by the Commission and subject to subsection (c), shall pay an award or awards to 1 or more whistleblowers who voluntarily provided original information to the Commission that led to the successful enforcement of the covered judicial or administrative action, or related action, in an aggregate amount equal to—

(A) not less than 10 percent, in total, of what has been collected of the monetary sanctions imposed in the action or related actions; and

(B) not more than 30 percent, in total, of what has been collected of the monetary sanctions imposed in the action or related actions.

(2) Payment of awards

(1) Determination of amount of award

(A) Discretion

(B) CriteriaIn determining the amount of an award made under subsection (b), the Commission—

(i) shall take into consideration—(I) the significance of the information provided by the whistleblower to the success of the covered judicial or administrative action;(II) the degree of assistance provided by the whistleblower and any legal representative of the whistleblower in a covered judicial or administrative action;(III) the programmatic interest of the Commission in deterring violations of the 1

1 So in original. Probably should be “this”.

chapter (including regulations under the 1 chapter) by making awards to whistleblowers who provide information that leads to the successful enforcement of such laws; and(IV) such additional relevant factors as the Commission may establish by rule or regulation; and

(ii) shall not take into consideration the balance of the Fund.

(2) Denial of awardNo award under subsection (b) shall be made—

(A) 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—

(i) a appropriate regulatory agency;

(ii) the Department of Justice;

(iii) a registered entity;

(iv) a registered futures association;

(v) a self-regulatory organization as defined in section 78c(a) of title 15; or

(vi) a law enforcement organization;

(B) to any whistleblower who is convicted of a criminal violation related to the judicial or administrative action for which the whistleblower otherwise could receive an award under this section;

(C) to any whistleblower who submits information to the Commission that is based on the facts underlying the covered action submitted previously by another whistleblower;

(D) to any whistleblower who fails to submit information to the Commission in such form as the Commission may, by rule or regulation, require.

(d) Representation

(1) Permitted representation

(2) Required representation

(A) In general

(B) Disclosure of identity

(e) No contract necessary

(f) Appeals

(1) In general

(2) Appeals

(3) Review

(g) Commodity Futures Trading Commission Customer Protection Fund

(1) Establishment

(2) Use of FundThe Fund shall be available to the Commission, without further appropriation or fiscal year limitation, for—

(A) the payment of awards to whistleblowers as provided in subsection (a); and

(B) the funding of customer education initiatives designed to help customers protect themselves against fraud or other violations of this chapter, or the rules and regulations thereunder.

(3) Deposits and creditsThere shall be deposited into or credited to the Fund:

(A) Monetary sanctions

(B) Additional amounts

(4) Investments

(A) Amounts in Fund may be invested

(B) Eligible investments

(5) Reports to CongressNot later than October 30 of each year, the Commission shall transmit to the Committee on Agriculture, Nutrition, and Forestry of the Senate, and the Committee on Agriculture of the House of Representatives a report on—

(A) the Commission’s whistleblower award program under this section, including a description of the number of awards granted and the types of cases in which awards were granted during the preceding fiscal year;

(B) customer education initiatives described in paragraph (2)(B) that were funded by the Fund during the preceding fiscal year;

(D) the amounts deposited into or credited to the Fund during the preceding fiscal year;

(E) the amount of earnings on investments of amounts in the Fund during the preceding fiscal year;

(F) the amount paid from the Fund during the preceding fiscal year to whistleblowers pursuant to subsection (b);

(G) the amount paid from the Fund during the preceding fiscal year for customer education initiatives described in paragraph (2)(B);

(H) the balance of the Fund at the end of the preceding fiscal year; and

(I) a complete set of audited financial statements, including a balance sheet, income statement, and cash flow analysis.

(h) Protection of whistleblowers

(1) Prohibition against retaliation

(A) In generalNo employer may discharge, demote, suspend, threaten, harass, directly or indirectly, 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—

(i) in providing information to the Commission in accordance with subsection (b); or

(ii) in assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information.

(B) Enforcement

(i) Cause of action

(ii) Subpoenas

(iii) Statute of limitations

(i) reinstatement with the same seniority status that the individual would have had, but for the discrimination;

(ii) the amount of back pay otherwise owed to the individual, with interest; and

(iii) 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) Confidentiality

(A) In general

(B) Effect

(i) In generalWithout the loss of its status as confidential in the hands of the Commission, all information referred to in subparagraph (A) may, in the discretion of the Commission, when determined by the Commission to be necessary or appropriate to accomplish the purposes of this chapter and protect customers and in accordance with clause (ii), be made available to—(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 78c(a) of title 15;(IV) a State attorney general in connection with any criminal investigation;(V) an appropriate department or agency of any State, acting within the scope of its jurisdiction; and(VI) a foreign futures authority.

(ii) Maintenance of information

(iii) Study on impact of FOIA exemption on Commodity Futures Trading Commission(I) StudyThe Inspector General of the Commission shall conduct a study—(aa) on whether the exemption under section 552(b)(3) of title 5 (known as the Freedom of Information Act) established in paragraph (2)(A) aids whistleblowers in disclosing information to the Commission;(bb) on what impact the exemption has had on the public’s ability to access information about the Commission’s regulation of commodity futures and option markets; and(cc) to make any recommendations on whether the Commission should continue to use the exemption.(II) ReportNot later than 30 months after July 21, 2010, the Inspector General shall—(aa) submit a report on the findings of the study required under this clause to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives; and(bb) make the report available to the public through publication of a report on the website of the Commission.

(3) Rights retained

(i) Rulemaking authority

(j) Implementing rules

(k) Original information

(l) Awards

(m) Provision of false information

(n) Nonenforceability of certain provisions waiving rights and remedies or requiring arbitration of disputes

(1) Waiver of rights and remedies

(2) Predispute arbitration agreements

(Sept. 21, 1922, ch. 369, § 23, as added Pub. L. 111–203, title VII, § 748, July 21, 2010, 124 Stat. 1739.)