Now assume that a court finds that the new rule is merely “interpretive.” What effect would this determination have on whether the SEC had to follow the APA’s rulemaking procedures?

Administrative Agencies

Assume that the Securities and Exchange Commission (SEC) has a rule that it will enforce statutory provisions pro-
hibiting insider trading only when the insiders make monetary profits for themselves. Then the SEC makes a new rule,
declaring that it will now bring enforcement actions against individuals for insider trading even if the individuals did
not personally profit from the transactions. In making the new rule, the SEC does not conduct a rulemaking procedure
but simply announces its decision. A stockbrokerage firm objects that the new rule was unlawfully developed without
opportunity for public comment. The brokerage firm challenges the rule in an action that ultimately is reviewed by a
federal appellate court. Using the information presented in the chapter, answer the following questions.

1. Is the SEC an executive agency or an independent regulatory agency? Does it matter to the outcome of this dispute?
Explain.

2. Suppose that the SEC asserts that it has always had the statutory authority to pursue persons for insider trading
regardless of whether they personally profited from the transactions. This is the only argument the SEC makes to
justify changing its enforcement rules. Would a court be likely to find that the SEC’s action was arbitrary and capricious under the Administrative Procedure Act (APA)? Why or why not?

3. Would a court be likely to give Chevron deference to the SEC’s interpretation of the law on insider trading? Why
or why not?

4. Now assume that a court finds that the new rule is merely “interpretive.” What effect would this determination
have on whether the SEC had to follow the APA’s rulemaking procedures?