Severability in Agency Rulemaking

Recommendation 2018-2 – Severability in Agency Rulemakingformerly titled Minimizing the Cost of Judicial Review, encourages federal agencies that anticipate litigation over their rules to consider early in the rulemaking process whether a rule is severable—that is, divisible into portions that can and should function independently. It also identifies steps agencies should take if they intend that portions of a rule should continue in effect even though other portions have been held unlawful on judicial review. In addition, it encourages courts reviewing an agency rule to solicit the parties’ views on the issue of severability in appropriate circumstances.

Citation: 83 Fed. Reg. 30,683, 30,685 (June 29, 2018)

Contacts

Implementation Contact
Michael J. Cole
mcole@acus.gov
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Committee: 

Final Recommendation

  • Recommendation number: 2018-2
  • Adopted on: June 15, 2018
  • Committees: Judicial Review

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.[1] 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...

Project Documents

Name Committee Type Date
April 25, 2018 Committee Meeting Agenda Judicial Review Agenda April 25, 2018 Download
April 11, 2018 Committee Meeting Agenda Judicial Review Agenda April 9, 2018 Download
March 16, 2018 Committee Meeting Agenda Judicial Review Agenda March 9, 2018 Download
March 14, 2018 Comments by Alan Morrison Judicial Review Member Comment March 14, 2018 Download
April 21, 2018 Comments by Alan B. Morrison Judicial Review Public Comment April 25, 2018 Download
April 23, 2018 Comments by Charles W. Tyler Judicial Review Public Comment April 25, 2018 Download
Severability in Agency Rulemaking Judicial Review Recommendation June 26, 2018 Download
Proposed Recommendation for Plenary Session REDLINE Judicial Review Recommendation June 8, 2018 Download
Minimizing the Cost of Judicial Review Proposed Recommendation for Plenary Session Judicial Review Recommendation May 18, 2018 Download
Minimizing the Cost of Judicial Review Draft Recommendation Approved by Committee Judicial Review Recommendation May 4, 2018 Download
Minimizing the Cost of Judicial Review Third Revised Draft Recommendation REDLINE VERSION (Word document) Judicial Review Recommendation April 22, 2018 Download
Minimizing the Cost of Judicial Review Third Revised Draft Recommendation REDLINE VERSION Judicial Review Recommendation April 20, 2018 Download
Minimizing the Cost of Judicial Review Revised Draft Recommendation CLEAN COPY Judicial Review Recommendation April 6, 2018 Download
Minimizing the Cost of Judicial Review Revised Draft Recommendation REDLINE VERSION Judicial Review Recommendation April 6, 2018 Download
Minimizing the Cost of Judicial Review First Draft Recommendation Judicial Review Recommendation March 9, 2018 Download
Tailoring the Scope of Judicial Remedies in Administrative Law -- Final Report Judicial Review Report May 21, 2018 Download
Mitigating the Costs of Remedying Legally Infirm Rules -- Draft Report Judicial Review Report March 5, 2018 Download

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