미국에서의 행정입법의 분류와 비법규적 행정규칙에 대한 통제문제

Not only Korea but also U.S. guidance documents often come in a variety of formats and names. In U.S., the Office of Management and Budget (OMB) is publishing a final Bulletin entitled, “Agency Good Guidance Practices,” which establishes policies and procedures for the development, issuance, and use of significant guidance documents by Executive Branch departments and agencies. Agencies are to follow GGP when providing important policy direction on a broad scale. This includes when an agency communicates, informally or indirectly, new or different regulatory expectations to a broad public audience for the first time, including regulatory expectations different from guidance issued prior to this Bulletin. This does not limit the agency’s ability to respond to questions as to how an established policy applies to a specific situation or to answer questions about areas that may lack established policy. This requirement also does not apply to positions taken by agencies in litigation, pre-litigation, or investigations, or in any way affect their authority to communicate their views in court or other enforcement proceedings. Agencies also should ensure consistent application of GGP. Employees involved in the development, issuance, or application of significant guidance documents should be trained regarding the agency’s GGP, particularly the principles of Section II(2). In addition, agency offices should monitor the development, issuance and use of significant guidance documents to ensure that employees are following GGP. Section II(2) establishes basic requirements for significant guidance documents. They must (i) include the term “guidance” or its functional equivalent; (ii) identify the agenc(ies) or office(s) issuing the document; (iii) identify the activity to which and the persons to whom the document applies; (iv) include the date of issuance; (v) note if it is a revision to a previously issued guidance document and, if so, identify the guidance that it replaces; (vi) provide the title of the guidance and any document identification number, if one exists; and (vii) include the citation to the statutory provision or regulation (in Code of Federal Regulations format) which it applies to or interprets. The effects of GGP are arguable but GGP could be one solution to make agencies not avoid administrative process in Korea.