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Draft Guidance on the Appropriate Use of Rules Versus Guidance

June 2002

Citation: 32 ELR 10721

Issue: 6

Author: James W. Conrad, Jr.

Trade associations and other representatives of regulated entities frequently decry federal agencies' use of guidance documents and the like in lieu of notice-and-comment rulemaking.2 The U.S. Congress has denounced such "back-door regulation,"3 and even public interest groups and individuals will sue over "de facto" or "spurious" rules when it suits their purposes.4

However—in my organization, at least—whenever we have collected examples of agency use of guidance documents, we have found as many cases where we supported the use of guidance as where we opposed it. Drawing from that experience, this Dialogue attempts to articulate a set of considerations that might help federal agencies decide whether to proceed by regulation or guidance.

1. This Dialogue began as a paper presented by the author at the Fall Meeting of the American Bar Association's (ABA's) Section of Environment, Energy, and Resources held in St. Louis, Missouri (Oct. 5, 2001). The author thanks his co-presenters (Jeffrey Holmstead, Ronald Levin, and Kenneth Weinstein) as well as David Buente for helpful comments on the paper. I also received valuable comments from numerous lawyers among American Chemistry Council staff and member companies, to whom I apologize for losing track of their names.

The author is Counsel, American Chemistry Council. His academic background includes the George Washington University Law School, J.D., Haverford College, B.A.

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