SEC Interpretations, the APA, and a Potential Reduction in Deference

The SEC has under consideration the appropriate interpretation of subsection (i)(9) of Rule 14a-8.  Because the staff is considering a change of interpretation (some would say a return to an earlier correct interpretation), arguments have been made that significant revisions in interpretation require notice and comment under the Administrative Procedure Act.  Under the Supreme Court's decision this term in Perez v. Mortgage Bankers Association, it is absolutely clear that they do not.  Agencies can change an interpretation, even a fundamental interpretation, without resorting to notice and comment.  

On that issue there was no real disagreement.  Some of the Justices, most noticeably Justice Scalia, worried about the implication of the interpretation in light of other administrative law doctrines that apply to agency interpretations.  In Auer v. Robbins, 519 US 452 (1997), the Court also held that agencies had the authority to resolve ambiguities in their own rules and that in general such interpretations are "controlling."  Allowing agencies to significantly change interpretations without notice and comment that then become "controlling" when reviewed by courts does accede to administrative agencies considerable authority.  As Justice Scalia noted: 

• By supplementing the APA with judge-made doctrines of deference, we have revolutionized the import of interpretive rules' exemption from notice-and-comment rulemaking. Agencies may now use these rules not just to advise the public, but also to bind them. After all, if an interpretive rule gets deference, the people are bound to obey it on pain of sanction, no less surely than they are bound to obey substantive rules, which are accorded similar deference. Interpretive rules that command deference do have the force of law.

Justice Alito all but asked for a cert petition challenging Seminole Rock (the opinion relied upon by Auer). Thus, the Court is in agreement that additional process is unnecessary for changes in interpretations but those interpretations soon may be entitled to significantly less (if any) deference.