WASHINGTON, D.C. — The Commodity Futures Trading Commission’s Division of Enforcement today issued an advisory to provide guidance describing its plan to address criminally liable regulatory offenses in accordance with Executive Order 14294, Fighting Overcriminalization in Federal Regulations.

The advisory announces the framework to be followed when DOE, as the CFTC division responsible for making referrals to the Department of Justice, considers whether to refer potential violations of criminal regulatory offenses to DOJ. 

The advisory also includes a set of factors DOE staff should consider when determining whether to refer alleged violations of criminal regulatory offenses to DOJ. Those factors include: 

• The harm or risk of harm, financial or otherwise, caused by the potential offense.
• The potential gain to the alleged defendant that could result from the offense.
• Whether the alleged defendant held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue.  
• Evidence, if any is available, of the alleged defendant’s general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue.
• Whether the alleged defendant is a recidivist or has otherwise engaged in a pattern of misconduct.
• Whether DOJ’s involvement will provide additional meaningful protection to participants in the derivatives markets.

The advisory is issued in accordance with section 7 of the Executive Order in lieu of the requirement for publication in the Federal Register. Currently, there is no majority vote of the Commission to authorize Federal Register publication.