Recommendation 2018-2 – Severability in Agency Rulemaking, formerly 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.
Recommended Citation: Admin. Conf. of the U.S., Recommendation 2018-2, Severability in Agency Rulemaking, 83 Fed. Reg. 30685 (June 29, 2018).
