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.

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

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Final Recommendation:

Severability in Agency Rulemaking

Recommendation number
2018-2
Adoption Date
Committees

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 un

Project Documents

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