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Michael B. Gerrard and Edward McTiernan Michael B. Gerrard and Edward McTiernan

Administrative agencies occasionally find it useful to communicate with the regulated community or other stakeholders without devoting time and finite resources to rulemaking. Federal and state agencies charged with protecting human health and the environment seem to be especially reliant on guidance in the form of interpretative rules, technical memoranda and advisory opinions. Such guidance can help effectively communicate an agency’s views on ambiguous or conflicting statutory provisions or judicial decisions to the regulated community, and to counsel and technical consultants on all sides of an issue. Agencies called upon to regulate emerging industries or issues can use guidance to provide direction without locking themselves into final positions while experts debate the available facts.

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