Summary

  • The SEC’s final amendment to Rule 200.41 took effect on 2 October. Three commissioners remain the normal quorum; one is sufficient only for a specific matter when every other commissioner in office is disqualified from it.
  • Petition 4-938 asks the SEC to rescind or suspend the amendment and publish it for comment. The rule remains effective in the SEC’s record, and the petition is not a court order or a stay.

The SEC changed a small number in a rule that determines when the Commission may act. Release 34-106537 keeps three commissioners as the general quorum. It also preserves the existing vacancy rule: if fewer than three commissioners are in office, the number in office is enough. The new step concerns a particular matter. If the number in office minus the commissioners disqualified from that matter is one or two, that available number constitutes a quorum for it.

The one-member threshold is therefore narrower than a general quorum of one. It applies when the other commissioners in office cannot consider that matter. The distinction matters because the 1995 rule already allowed two available commissioners to act on a matter, but the SEC said then that it did not need to allow one. The 2026 amendment changes that last case; it does not replace the ordinary three-member rule.

The SEC says the revision promotes flexibility and finality. It also classifies the change as agency management and organization, not a substantive rule, and says it does not substantially affect the rights or obligations of non-agency parties. On that basis, the Commission did not use notice and comment. Its public vote record lists Atkins, Peirce and Uyeda as approving the rule on 30 September. The SEC’s docket gives 2 October as both the publication and effective date.

A challenge appeared almost immediately. James McRitchie filed a petition dated 30 September, docketed by the SEC as 4-938 on 2 October. He asks the Commission to rescind the amendment or, at minimum, suspend it and seek public comment. The petition argues that a one-member quorum can determine actions affecting investors and regulated parties, so the change is not merely internal. It also asks the SEC to disclose each disqualification that produces a one-member quorum and the reason for it. These are the petitioner’s claims and requests, not findings by the SEC or a court.

That request points to the governance question left open by the change. Rule 200.41 names the count that makes one commissioner a quorum and refers to disqualification under Rule 200.60 or other disqualification. The amendment itself adds no separate public reporting step for invoking the new threshold. Other disclosure and recusal rules may still apply; the point is that the new rule does not spell out a new public record for this trigger. The SEC’s comments page lists one separate public comment, received on 5 October from J. Burr Reddig. It does not state the comment’s position.

At the 18 October research cutoff, the SEC’s public pages still list the amendment as final and effective and the petition as a petition. No disposition is shown on the petition page. The record supports neither a claim that the rule has been suspended nor that the SEC has used the one-member exception. The first measurable test is whether a future matter reaches that threshold and what record accompanies the decision.

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