On September 23, 2020, the U.S. Securities and Exchange
Commission (SEC) issued its final rules adopting several
amendments to its whistleblower program rules,
which were part of its 2018 notice of proposed rulemaking.
However, in the final version of the rules, Rule 21F-10(d) and
Rule 21F-11(d) were modified without any notice to the public and
without the notice and comment obligations required by law.
The regulations as changed in September 2020 permit a
commissioner to review a preliminary determination before
it is submitted to the whistleblower. However, the rules do not
detail the actions a commissioner may take after reviewing the
preliminary determination.
The SEC should conduct a formal rulemaking to address the
modification of Rule 21F-10(d) and Rule 21F-11(d) of the
whistleblower program made in the 2020 rulemaking, as the
amendments were not subject to public notice and comment, as
required by law.
