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Guidance Guidance is one of the many names agencies use to describe materials issued to supplement or explain regulations. For example, the Federal Aviation Administration has an Advisory Circular System; the Nuclear Regulatory Commission has Regulatory Guides. Virtually every regulatory agency has comparable publications. Also, virtually every agency states clearly that its guidance material is just that--a guide--and is not intended to be binding. While this may be true as a technical matter, because to be binding a regulation must be issued after notice-and-comment rulemaking, some agencies give their guidance a great deal of practical effect. Indeed, in the hands of many Federal field office employees, guidance material often becomes indistinguishable from enforceable regulations. Thus, from the perspective of a person who must deal with a Federal regulatory agency, guidance can be just as important as actual regulations. In most agencies, the volume of guidance material usually far exceeds the volume of legally enforceable regulations. There are several reasons for the wide use of guidance. In most agencies, it is much easier to issue guidance than a regulation. Guidance does not have to be published for public comment, and in most agencies it does not have to be approved at as high a level as regulations. Thus, when questions arise about the meaning of a regulation or about acceptable methods of complying with a regulation, and such questions arise constantly, the easiest way for an agency to respond is by issuing guidance. Guidance is frequently issued as a result of pressure from the regulated public who insist on more specific direction than the regulation contains. Most guidance is issued to answer questions, not because the agency is deliberately attempting to skirt the rulemaking requirements. Similarly, the fact that an agency's field staff treats guidance material as if it were "mandatory" is more a result of a large and scattered bureaucracy than it is deliberate. When a regulation is vague, as regulations often are, and when someone wants an answer to a specific question that could require a considerable exercise of judgment, it is not unusual for a field office employee to look to guidance material for answers. The citizen who must comply with a general regulation is often forced to make a choice between asking for a new interpretation, which could mean months of delay, or complying with the "acceptable" directions Washington headquarters has set down as guidance. Thus, guidance material issued with the best of intentions frequently becomes binding in day-to-day practice.
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