Interpretive Release Interpretation of the SEC's Whistleblower Rules Under Section 21F of the Securities Exchange Act of 1934 34-75592

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SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 241
[Release No. 34-75592]
INTERPRETATION OF THE SEC’S WHISTLEBLOWER RULES UNDER
SECTION 21F OF THE SECURITIES EXCHANGE ACT OF 1934
AGENCY: Securities and Exchange Commission.
ACTION: Interpretation.
SUMMARY: The Securities and Exchange Commission (Commission or SEC) is issuing this
interpretive rule to clarify that, for purposes of the employment retaliation protections provided
by Section 21F of the Securities Exchange Act of 1934 (“Exchange Act”), an individual’s status
as a whistleblower does not depend on adherence to the reporting procedures specified in
Exchange Act Rule 21F-9(a), but is determined solely by the terms of Exchange Act Rule 21F-
2(b)(1).
DATE: [insert date of publication in the Federal Register].
FOR FURTHER INFORMATION CONTACT: Jane Norberg, Deputy Chief of the Office of
the Whistleblower, Division of Enforcement, at (202) 551-4790; Brian A. Ochs, Senior Special
Counsel, Office of the General Counsel, at (202) 551-5067; Securities and Exchange
Commission, 100 F Street, NE, Washington, DC 20549.
SUPPLEMENTARY INFORMATION:
I. Background
In Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act,
Pub. L. No. 111-203, 12 4 Stat. 1376, 1841-49 (2010), Congress amended the Exchange Act to
add Section 21F, 15 U.S.C. §78u-6(h)(1), entitled “Securities Whistleblower Incentives and
Protection.” Section 21F established a series of new incentives and protections for individuals to

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report possible violations of the federal securities laws. Generally speaking, these incentives and
protections take three forms—monetary awards for providing information, heightened
confidentiality assurances, and enhanced employment retaliation protections.
In May 2011, the Commission issued legislative rules (“whistleblower rules”) after
notice-and-comment rulemaking to implement the provisions of Section 21F. The Commission
is now issuing this interpretive rule to clarify the meaning and application of certain of those
rules. As explained below, an individual may qualify as a whistleblower for purposes of Section
21F’s employment retaliation protections irrespective of whether he or she has adhered to the
reporting procedures specified in Rule 21F-9(a). Rule 21F-2(b)(1) alone governs the procedures
that an individual must follow to qualify as a whistleblower eligible for Section 21F’s
employment retaliation protections.
II. Interpretation
When we promulgated our legislative rules to implement the whistleblower program, we
recognized that Section 21F is ambiguous on the issue of the scope of the employment retaliation
protections afforded thereunder. On the one hand, Section 21F(h)(1)(A) includes a broad
catchall provision that prohibits an employer from, among other things, retaliating against a
whistleblower for “making disclosures that are required or protected under” the Sarbanes-Oxley
Act of 2002, the Exchange Act, 18 U.S.C. §1513(e), “and any other law, rule, or regulation
subject to the jurisdiction of the Commission.” 1 As the Commission explained in the adopting
1 Section 21F(h)(1)(A) provides as follows: “(A) In General. No 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 this section; (ii) in initiating, testifying in, or assisting in any investigation or
judicial or administrative action of the Commission based upon or related to such information; or
(iii) in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002

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release that accompanied the whistleblower rules, the reporting covered by this provision
includes “report[s] to persons or governmental authorities other than the Commission.”2 But on
the other hand, the employment retaliation protections afforded to whistleblowers under Section
21F could be read as limited to only those individuals who provide the Commission with
information; this is because under Section 21F(a)(6) the “term ‘whistleblower’ means any
individual who provides … information relating to a violation of the securities laws to the
Commission, in a manner established, by rule or regulation, by the Commission.” (Emphasis
added).
To resolve this ambiguity, the Commission in Rule 21F-2 promulgated two separate
definitions of “whistleblower.” These two definitions apply in different circumstances and each
involves its own specified reporting procedures that must be satisfied in order for an individual
to qualify under the particular definition. The first definition, which is set forth in Rule 21F-2(a),
mirrors the statutory definition of whistleblower. It provides in pertinent part that an individual
is “a whistleblower if, alone or jointly with others, [the individual] provide[s] the Commission
(15 U.S.C. 7201 et seq.), this chapter [i.e., the Exchange Act], including section 78j-1(m) of this
title [i.e., Section 10A(m) of the Exchange Act], section 1513(e) of Title 18, and any other law,
rule, or regulation subject to the jurisdiction of the Commission.”
Clause (iii), which is a catchall provision, provides employment retaliation protection for
certain internal reporting at public companies and for certain disclosures to the U.S. Department
of Justice by expressly incorporating the “disclosures that are required or protected under the
Sarbanes-Oxley Act,” which includes Sarbanes-Oxley Section 806. Section 806, in turn,
prohibits employment retaliation against an employee of a public company (or a subsidiary
thereof) based on certain disclosures of securities law violations to “a person with supervisory
authority over the employee (or such other person working for the employer who has the
authority to investigate, discovery, or terminate misconduct)” or to a “Federal regulatory or law
enforcement agency.” 15 U.S.C. §1514A(1).
2 Securities Whistleblower Incentives and Protections, 76 Fed. Reg. 34300, 34304 (June
13, 2011) (emphasis in original).

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with information pursuant to the procedures set forth in [Rule] 21F-9(a).” This definition of
whistleblower applies only to the award and confidentiality provisions of Section 21F.
The second whistleblower definition, which is set forth in Rule 21F-2(b)(1), provides in
pertinent part that, “[f]or purposes of the anti-retaliation protections afforded by Section
21F(h)(1) of the Exchange Act …, [an individual is] a whistleblower if … [the individual]
provide[d] that information in a manner described in Section 21F(h)(1)(A) of the Exchange
Act[.]” Rule 21F-2(b)(1)(ii). This definition—unlike the whistleblower definition in Rule 21F-
2(a) that applies to the award and confidentiality provisions—does not require reporting in
accordance with Rule 21F-9(a)’s procedures.
We also adopted Rule 21F-9(a) to specify the reporting procedures that must be followed
by an individual who seeks to qualify as a whistleblower under Rule 21F-2(a) and thus to be
eligible for an award and the heightened confidentiality protections. Rule 21F-9(a) provides in
pertinent part that, “[t]o be considered a whistleblower under Section 21F …, [an individual]
must submit [his or her] information … by either of these methods: (1) Online, through the
Commission’s website …; or (2) By mailing or faxing a Form TCR … to the SEC Office of the
Whistleblower ….”
Since our adoption of the whistleblower rules, we have consistently understood Rule
21F-9(a) as a procedural rule that applies only to help determine an individual’s status as a
whistleblower for purposes of Section 21F’s award and confidentiality provisions.3 Similarly, it
3 See generally SEC Staff Report, 2014 ANNUAL REPORT TO CONGRESS ON THE DODD-
FRANK WHISTLEBLOWER PROGRAM, 19 (available at:
http://www.sec.gov/about/offices/owb/annual-report-2014.pdf) (explaining that from the time it
promulgated the whistleblower rules, the Commission has taken the view that the employment
retaliation protections “apply not just to individuals who report to the SEC but also to individuals
when they, among other things, report potential securities law violations internally at public

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has been our consistent view that Rule 21F-2(b)(1) alone controls the reporting methods that will
qualify an individual as a whistleblower for the retaliation protections.
Notwithstanding our view that Rule 21F-2(b)(1) alone controls in the context of
determining the relevant reporting procedures for an individual to qualify as a whistleblower
eligible for Section 21F’s employment retaliation protections, the Court of Appeals for the Fifth
Circuit expressed some uncertainty about this reading in a recent decision.4 Although we
appreciate that if read in isolation Rule 21F-9(a) could be construed to require that an individual
must report to the Commission before he or she will qualify as a whistleblower eligible for the
employment retaliation protections provided by Section 21F, that construction is not consistent
with Rule 21F-2 and would undermine our overall goals in implementing the whistleblower
program. We reach this conclusion for several reasons.
First, as the text of Rule 21F-2(b)(1) states, “for purposes of Section 21F’s employment
retaliation protections,” an individual qualifies as a whistleblower entitled to the employment
retaliation protection whenever he or she makes any of the broader array of disclosures specified
companies”; also explaining that the Commission has “consistently” opposed the contrary
interpretation).
4 Asadi v. G.E. Energy (U.S.A.), L.L.C., 720 F.3d 620, 630 (5th Cir. 2013).

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in Section 21F(h)(1)(A).5 The fact that Rule 21F-2(b)(1) expressly and specifically applies in the
employment retaliation context demonstrates that it should control over Rule 21F-9(a).6
Second, Rule 21F-2(b)(1)(iii) expressly provides that “[t]he anti-retaliation protections
apply whether or not [an individual] satisf[ies] the requirements, procedures and conditions to
qualify for an award.” As Rule 21F-2(a)(2) makes plain, the reporting procedures specified in
Rule 21F-9(a) are among the procedures that an individual must follow to recover an award. The
contrast between these provisions further supports our interpretation that the availability of
employment retaliation protection is not conditioned on an individual’s adherence to the Rule
21F-9(a) procedures.7
Finally, our interpretation best comports with our overall goals in implementing the
whistleblower program. Specifically, by providing employment retaliation protections for
individuals who report internally first to a supervisor, compliance official, or other person
working for the company that has authority to investigate, discover, or terminate misconduct, our
interpretive rule avoids a two-tiered structure of employment retaliation protection that might
discourage some individuals from first reporting internally in appropriate circumstances and,
thus, jeopardize the investor-protection and law-enforcement benefits that can result from
5 In contrast, Rule 21F-2(a)(2) states that “[t]o be eligible for an award,” an individual
must submit original information “to the Commission in accordance with the procedures and
conditions described in Rules 21F-4, 21F-8, and 21F-9.” (Emphasis added). In addition, Rule
21F-2(a)(1) specifically cross-references the procedures set forth in Rule 21F-9(a), whereas Rule
21F-2(b)(1) does not contain a similar cross-reference.
6 See, e.g., In re Gulevsky, 362 F.3d 961, 963 (7th Cir. 2004) (“[W]hen both a specific and
a general provision govern a situation, the specific one controls.”) (quoting Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 384–85, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992)).
7 We note that, other than Rule 21F-2(b), all of the other rules that the Commission
adopted to implement the whistleblower program deal exclusively with the award and
confidentiality provisions.

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internal reporting.8 Under our interpretation, an individual who reports internally and suffers
employment retaliation will be no less protected than an individual who comes immediately to
the Commission. Providing equivalent employment retaliation protection for both situations
removes a potentially serious disincentive to internal reporting by employees in appropriate
circumstances. A contrary interpretation would undermine the other incentives that were put in
place through the Commission’s whistleblower rules in order to encourage internal reporting.9
For the foregoing reasons, we are issuing this interpretation to clarify that, for purposes of
Section 21F’s employment retaliation protections, an individual’s status as a whistleblower does
not depend on adherence to the reporting procedures specified in Rule 21F-9(a).
List of Subjects in 17 CFR 241
Securities.
8 We note that a contrary interpretation would also create a two-tiered scheme of
employment retaliation protection even as between individuals who report possible securities
fraud violations or violations of SEC rules or regulations to the Commission; specifically, if an
individual comes forward to report information to the Commission in a manner other than those
specified in Rule 21F-9(a), that individual would not qualify for the employment retaliation
protections of Section 21F. See Section 21F(h)(1)(A)(i) & (ii). But under our reading of Section
21F and the whistleblower rules, such individuals would be afforded employment retaliation
protection under the catchall language of Section 21F(h)(1)(A)(iii)—which incorporates the
protections of Section 806 of the Sarbanes-Oxley Act—irrespective of the fact that they did not
comply with the technical reporting requirements of Rule 21F-9(a).
9 See, e.g., Exchange Act Rule 21F-4(c)(3) (providing that an individual who reports
internally can collect a whistleblower award from the Commission if his internal report to the
company or entity results in a successful covered action); Exchange Act Rule 21F-4(b)(7)
(providing that an individual who first reports pursuant to an entity’s internal whistleblower,
legal, or compliance procedures for reporting allegations of possible violations of law and within
120 days reports to the Commission will be treated for purposes of an award as if the submission
to the Commission had been made at the earlier internal reporting date); Exchange Act Rule 21F-
6(a)(4) (providing that when determining the amount of an award, the Commission will consider
as a plus-factor the whistleblower’s participation in an entity’s internal compliance procedures).

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Amendments to the Code of Federal Regulations
For the reasons set out above, the Commission is amending Title 17, chapter II of the
Code of Federal Regulations as set forth below:
PART 241 – INTERPRETATIVE RELEASES RELATING TO THE SECURITIES
EXCHANGE ACT OF 1934 AND GENERAL RULES AND REGULATIONS
THEREUNDER
1. Part 241 is amended by adding Release No. 34-75592 and the release date of August 4,
2015, to the list of interpretive releases as follows:
Subject Release No. Date Fed. Reg. Vol. and Page
INTERPRETATION OF
THE SEC’S
WHISTLEBLOWER
RULES UNDER SECTION
21F OF THE SECURITIES
EXCHANGE ACT OF 1934
34-75592 Aug. 4, 2015 [Insert FR Volume
Number] FR [Insert FR
Page Number]
By the Commission.
Brent J. Fields
Secretary
August 4, 2015