                United States Court of Appeals
                           F O R T HE D ISTR IC T   OF   C O LU M B IA C IR C U IT
                                        ____________
No. 09-1021                                                                 September Term 2009
                                                                                     SEC-74FR3138
                                                                  Filed On: July 12, 2010
American Equity Investment Life Insurance
Company, et al.,
      Petitioners

      v.

Securities and Exchange Commission,
         Respondent
------------------------------
Consolidated with 09-1056

      BEFORE:       Sentelle, Chief Judge, and Ginsburg and Rogers, Circuit Judges

                                           ORDER

       Upon consideration of the petition of Old Mutual Financial Life Insurance
Company for rehearing and the response thereto, and the supplemental briefs of the
parties, it is

        ORDERED that the petition for rehearing be granted to the extent that Rule 151A
be vacated, and the opinion in American Equity v. SEC, 572 F.3d 923 (D.C. Cir. 2009),
be amended to delete the last sentence in the first paragraph, 572 F.3d at 925, and
insert in lieu thereof “Accordingly, we vacate the rule.” and to delete the third full
paragraph, 572 F.3d at 936, and insert in lieu thereof:

                     Having determined that the SEC’s § 2(b) analysis is
             lacking, we grant the petitions insofar as they assert the SEC
             failed properly to consider the effect of the rule upon
             efficiency, competition, and capital formation. Turning to the
             appropriate remedy, under Allied-Signal, Inc. v. United
             States Nuclear Regulatory Commission, we note “[t]he
             decision whether to vacate depends on the seriousness of
             the order’s deficiencies (and thus the extent of doubt
             whether the agency chose correctly) and the disruptive
             consequences of an interim change that may itself be
             changed.” 988 F.2d 146, 151 (D.C. Cir. 1993). The SEC
             argues it is likely to reissue Rule 151A but it also
             acknowledges it is in the midst of analyzing the effect of the
             rule upon the law of each state. As the petitioners point out,
             the Commission cannot know whether that analysis will
             support reissuing Rule 151A until it has been completed.
             Neither will vacatur be disruptive of the agency’s regulatory
             program. By its own terms, Rule 151A has not yet gone into
             effect, cf. Allied-Signal, 988 F.2d at 151 (vacatur would
             require agency to return fees already collected under
             regulatory regime); Sugar Cane Growers Co-op of Florida v.
             Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (vacatur would
             be “an invitation to chaos” because “[t]he egg has been
             scrambled and there is no apparent way to restore the status
             quo ante”), and until such time as it does, the regulations
             supplied by state law will remain in place, cf. Davis County
             Solid Waste Mgmt. v. EPA, 108 F.3d 1454, 1458–59 (D.C.
             Cir.1997) (vacatur would leave certain pollutants partially
             unregulated for eighteen months). We therefore order that
             Rule 151A be vacated.

       The Clerk is directed to amend the judgment filed July 21, 2009, accordingly.
The Clerk is further directed to issue the mandate 7 days after the issuance of this
order.

                                      Per Curiam

                                                      FOR THE COURT:
                                                      Mark J. Langer, Clerk

                                               BY:    /s/
                                                      Michael C. McGrail
                                                      Deputy Clerk
