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1 Severability in Agency Rulemaking 1 (2018)

handle is hein.usfed/sevbagy0001 and id is 1 raw text is: Administrative Conference Recommendation 2018-2 Severability in Agency Rulemaking Adopted June 15, 2018 If a court holds portions of a rule unlawful, and the agency has been silent about severability, then the default remedy is to vacate the entire rule, including those portions that the court did not hold unlawful.' This outcome can impose unnecessary costs on the agency, if it chooses to re-promulgate the portions of the rule that the court did not hold unlawful but nonetheless set aside, and on the public, which would forgo any benefits that would have accrued under those portions of the rule. In recent years, as administrative rules have become more complex,2 some agencies have adapted the concept of severability originally developed in the legislative context. Specifically, some agencies have included provisions in some of their rules stating that if portions of the rule are held unlawful in court, other portions not held unlawful should be allowed to go into or remain in effect.3 To date, only a handful of agencies have used these severability clauses,4 yet many other agencies issue rules that may be good candidates for considering the possibility of severability. ' Admin. Conf. of the U.S., Recommendation 2013-6, Remand Without Vacatur, 78 Fed. Reg. 76,269, 76,272 (Dec. 5, 2013); Ronald M. Levin, Judicial Remedies, in A GUIDE TO JUDICIAL AND POLITICAL REVIEW OF FEDERAL AGENCIES 251, 251-52 (Michael E. Herz et al. eds., 2d ed. 2015). 2 Jennifer Nou & Edward H. Stiglitz, Regulatory Bundling, 128 YALE L.J. _ (forthcoming 2018). 3 A recent article on severability clauses identified fifty-nine instances in which agencies had included severability clauses in their rules as of October 2014. Charles W. Tyler & E. Donald Elliott, Administrative Severability Clauses, 124 YALE L.J. 2286, 2349-52 (2015). 4 The Federal Trade Commission and Environmental Protection Agency have generated the largest volume of severability clauses. Id. at 2318-19.

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