CHAPTER 585

SENATE BILL NO. 320

AS AMENDED BY

SENATE AMENDMENT NOS.1 AND 2

AN ACT TO AMEND TITLE 29, DELAWARE CODE, RELATING TO ADMINISTRATIVE PROCEDURES GOVERNING CERTAIN STATE AGENCIES.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 29, Delaware Code, is amended by inserting a new Chapter 64 to be entitled "Administrative Procedures" to read as follows:

"CHAPTER 64. ADMINISTRATIVE PROCEDURES SUBCHAPTER I. POLICY AND DEFINITIONS.

§6401. Policy.

The purpose of this chapter is to standardize the procedures and methods whereby certain state agencies exercise their statutory powers and to specify the manner and extent to which action by such agencies may be subjected to judicial review.

§6402. Definitions.

As used in this chapter:

(a) 'Agency' means any authority, department, instrumentality, commission, officer, board, or other unit of the state government authorized by law to make regulations, decide cases or issue licenses. Agency does not include the General Assembly, courts, municipalities, counties and other political subdivisions, joint state-federal, interstate or inter-municipal authorities and their agencies.

(b) 'Agency action' means either an agency's regulation or case decision, which could be a basis for the imposition of injunctive orders, penal or civil sanctions of any kind, or the grant or denial of relief or of a license, right or benefit by any agency or court, or both.

(c) 'Case' or 'case decision' means any agency proceeding or determination that a named party as a matter of past or present fact, or of threatened or contemplated private action, is or is not in violation of a law or regulation, or is or is not in compliance with any existing requirement for obtaining a license or other right or benefit. Such administrative adjudiciations include, without limitation, those of a declaratory nature respecting the payment of money or resulting in injunctive relief requiring a named party to act or refrain from acting or threatening to act in some way required or forbidden by law or regulation under which the agency is operating.

() 'Court' means the Superior Court of the State of Delaware.

(a) 'License' means the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law, but it does not include a license required solely for revenue purposes.

(b) 'Party' means each person or agency named or admitted in an agency proceeding as a party or properly seeking and entitled as of right to be admitted as a party to an agency proceeding.

(c) A 'regulation' means any statement of law, procedure, policy, right, requirement, or prohibition formulated and promulgated by an agency as a rule or standard or as a guide for the decision of cases thereafter by it or by any other agency, authority or court. Such statements do not include locally operative highway signs or markers or an agency's explanation of or reasons for its decision of a case, advisory ruling or opinion given upon a hypothetical or other stated fact situation, or terms of an injunctive order or license.

(h) 'Subordinate' means either (i) one or more but less than a quorum of the members of a board constituting an agency, or (ii) any person or persons designated in writing to act on its behalf.

() 'Substantive' or 'substantive in nature' means, when used in connection with regulations, those regulations allowing, requiring or forbidding conduct in which private persons are otherwise free or prohibited to engage or regulations which state requirements, other than procedural, for obtaining, retaining, or renewing a license or any kind of benefit or recompense.

SUBCHAPTER II. AGENCY REGULATIONS.

§6411. Agency Organization Regulations and Rules of Procedures.

For the benefit of the public, each agency shall adopt the following regulations:

(1) A general description of its organization, its methods of operations and the manner, including addresses and telephone numbers, whereby the public may obtain information and otherwise deal with the agency.

(2) A statement of the nature and requirements of all rules of practice and procedure used by the agency to exercise its statutory authority in compliance with the provisions of this chapter.

§6412. Public information.

(a) Each agency shall make available promptly to the public upon request, for inspection, originals or legible copies of the following:

(1) Its regulations, orders, decisions, opinions and licenses.

(0) Any documents, papers and other materials considered by the agency in taking agency action.

(1) Any records of the agency reasonably specified by the requesting person.

(b) When making its documents and other materials available to the public, the agency may:

(1) Take reasonable precautions to preserve the integrity and security of such documents or materials.

(2) Make available only at reasonable, specified intervals documents and materials being actively used by the agency.

(3) Limit the availability of information to its regular business hours and place of business.

(4) Decline to make available documents and other materials which:

(i) relate solely to the agency's internal procedural and personnel practices.

(ii) pertain to ongoing enforcement investigations which have not yet resulted in agency action.

(iii) are specifically exempted from disclosure by law.

reasons as the Court would hold its records confidential or privileged.

(5) Make a reasonable charge for the cost of reproducing or copying such documents or materials.

(c) The Court shall have jurisdiction of all actions to compel an agency to produce or disclose any documents, materials or information and the agency shall have the burden of sustaining its refusal to produce or disclose as requested.

§6413. Regulations; exemptions.

(a) All regulations, except those specifically exempted, shall be adopted according to the requirements of this chapter.

(b) Regulations of the following types are exempted from the procedural requirements of this chapter and may be adopted informally:

(1) Descriptions of agency organization, operations, and procedures for obtaining information.

(0) Rules of practice and procedure used by the agency.

(1) Delegations of authority to subordinates.

(2) Non-substantive changes in existing regulations to alter style or form or to correct technical errors.

(3) Amendments to existing regulations to make them consistent with changes in basic law but which do not otherwise alter the substance of the regulations.

(4) Codifications of existing agency or judicial principals of decision derived from previous decisions and rulings.

§6414. Request for regulation-making proceedings.

Proceedings for the adoption, amendment or repeal of a regulation may be initiated by an agency on the motion of an agency member or at the request of any person who so petitions the agency on a form prescribed for that purpose by the Secretary of Administrative Services. The agency at its next regular meeting shall either grant the petition and initiate the proceedings specified by this chapter or deny the petition and give its reasons for doing so. If the petition is received by the agency within five (5) days of such meeting, the agency may defer action on the petition until the next succeeding regular meeting.

§6415. Notice.

Whenever an agency proposes to formulate, adopt, amend or repeal a regulation and to receive information, factual evidence and public reaction, it shall give at least 20 days prior notice as follows:

(1) The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, issues and possible terms of the agency action and a reference to the legal authority of the agency to act.

(0) The notice shall state the manner in which persons may present their views: if in writing, of the place to which and the final date by which such views may be submitted; if at a public hearing, the date, time and place of the hearing.

(1) The notice shall be published in at least two Delaware newspapers of general circulation.

(2) The notice shall be mailed to all persons who have made timely written requests of the agency for advance notice of its regulation-making proceedings.

§6416. Written submittals.

Before adopting, amending or repealing any regulation, an agency shall give notice as prescribed in §6415 of this title and shall receive all written suggestions, compilations of data, briefs or other written materials submitted to it by any person. The agency, in its discretion, may designate a subordinate to organize, classify, summarize and make recommendations with respect to the materials, which may be considered with the materials by the agency in reaching its conclusions.

§417. Public Hearings.

When an agency is required by law to hold public hearings before adopting, amending or repealing a regulation and, otherwise, if an agency in its discretion determines to hold public hearings, in addition to giving opportunity for the submission of written materials, the following shall apply to the conduct of such hearings.

(1) The hearing shall be conducted either by the agency or by a subordinate designated by the agency for that purpose who shall be empowered in connection with such hearing to:

(i) issue subpoenas, in the agency's sole discretion, for witnesses or other evidence, on the agency's initiative or at the request of any person.

(ii) administer oaths to witnesses.

() exclude irrelevant, immaterial, insubstantial, cumulative, privileged matter, and unduly repetitive proofs, rebuttals and cross examination.

(2) A record from which a verbatim transcript can be prepared shall be made of all hearings. The expense of preparing any transcript shall be borne by the person requesting it.

§6418. Agency findings; form of regulations.

(a) At the conclusion of all hearings and after receipt within the time allowed of all written submittals, upon all the testimonial and written evidence and information submitted, together with summaries of the evidence and information by subordinates, the agency shall determine whether a regulation should be adopted, amended or repealed and shall issue its conclusion in an order which shall include:

(1) a brief summary of the evidence and information submitted.

(0) a brief summary of its findings of fact with respect to the evidence and information except where a rule of procedure is being adopted or amended.

(1) a decision to adopt, amend or repeal a regulation or to take no action and the decision shall be supported by its findings on the evidence and information received.

(2) a reference to the exact text and citation of any regulation adopted, amended or repealed.

(3) the effective date of the order.

(4) any other findings or conclusions required by the law under which the agency has authority to act.

(5) the signatures of at least a quorum of the agency members.

(b) The effective date of an order which adopts, amends or repeals a regulation shall be not less than 30 days from the date the order is issued, unless the reason for an earlier specified date is stated in the order and is supported by the findings of the agency.

§6419. Emergency regulations.

If an agency determines that an imminent peril to the public health, safety or welfare requires the adoption, amendment or repeal of a regulation with less than 20 days' notice, or without notice, the following rules shall apply:

(1) The agency may proceed to act without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable.

(2) The order adopting, amending or repealing a regulation shall state in writing the reasons for the agency's determination that such emergency action is necessary.

(3) The order effecting such action may be effective for a period of not longer than 120 days and may be renewed once for a period not exceeding 60 days.

(4) When such an order is issued without any of the public procedures otherwise required or authorized by this chapter, the agency shall state as part of the order that it will receive, consider and respond to petitions by any interested person for the reconsideration or revision thereof.

SUBCHAPTER III. CASE DECISIONS.

§6421. Application of subchapter.

This subchapter shall apply to all agency case decisions except:

(1) Decisions relating to the assessment of taxes or tax penalties made by the Tax Appeals Board.

(2) Temproary restraining orders and similar order authorized by law to be issued summarily.

§6422. Notice of proceedings.

Whenever an agency proposes to proceed for a case decision, it shall give 20 days prior notice to all parties as follows:

(1) The notice shall describe the subject matter of the proceedings.

(2) The notice shall inform the parties of the opportunity, if permitted by law, to elect to proceed by informal fact-finding and of the date by which such election must be made.

(3) The notice shall give the date, time and place the formal hearing will be held if informal fact-finding is not elected.

(4) The notice shall cite the law or regulation giving the agency authority to act.

(5) The notice shall inform the party of his right to present evidence, to be represented by counsel and to appeal personally or by other representative.

(6) The notice shall inform the parties of the agency's obligation to reach its decision based upon the evidence received.

§6423. Informal fact-finding.

Where a formal hearing is not required by law and where the parties agree in advance to proceed in such manner, the agency shall acquire the information upon which it bases its decision by means of informal conference or consultation among the parties as follows:

(2) The parties may appear in person and by counsel.

(3) The parties may submit any relevant factual data, documents, testimony and argument. Only such evidence and argument presented at such conference or presented to the agency and opposing parties before the conference may be taken into consideration by the agency in making its findings and rendering its decision.

§6424. Public hearings, notice.

When required by law or when the parties do not consent to informal proceedings, or when the matters at issue involve price-fixing, rate-making or similar matters of general public interest, as determined by the agency, the agency shall conduct a formal, public evidentiary hearing to which the following provisions shall apply.

(1) The notice required by section 6422 shall be published in at least two Delaware newspapers of general circulation.

(0) Applicants for licenses, renewals and other rights or benefits shall not be entitled to prior notice of application requirements but shall receive notice of any proposed contest of such applications.

§6425. Conduct of public hearings; burden of proof; record.

(a) The hearing may be conducted by the agency or by a subordinate designated for that purpose.

(b) In connection with such hearings, the agency or its designated subordinate may be empowered to:

(1) issue subpoenas for witnesses and other sources of evidence, either on the agency's initiative or at the request of any party.

(2) administer oaths to witnesses.

(3) exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence.

(4) limit unduly repetitive proof, rebuttal and cross examination.

(5) cause interrogatories to issue and depositions and to be taken hold pre-hearing conferences for the settlement or simplification of issues by consent, for the disposal of procedural requests or disputes, and to regulate and expedite the course of the hearing.

(c) The burden of proof shall always be upon the applicant or proponent.

(d) A record from which a verbatim transcript can be prepared shall be made of all hearings in all contested cases. Transcripts shall be made at the request and expense of any party.

§6426. Proposed orders.

(a) Whenever a subordinate presides over an informal conference or a formal hearing, he shall prepare a proposed order for the consideration of the agency which shall include:

(1) a brief summary of the evidence and recommended findings of fact based upon the evidence.

(2) recommended conclusions of law

(3) recommended decision.

(b) When the proposed order is submitted to the agency, a copy shall be delivered to each of the other parties who shall have 20 days to submit in writing to the agency exceptions, comments and arguments respecting the proposed order.

§6427. Record.

With respect to each case, all notices, correspondence between the agency and the parties, all exhibits, documents and testimony admitted into evidence and all recommended orders, summaries of evidence and findings and all interlocutory and final orders of the agency shall be included in the agency's record of the case and shall be retained by the agency.

§6428. Decision; final order.

(a) The agency shall make its decision based upon the entire record of the case and upon the summaries and recommendations of its subordinates.

(b) Every case decision of any agency shall be incorporated in a final order which shall include, where appropriate:

(i) a brief summary of the evidence.

(ii) findings of fact based upon the evidence.

(iii) conclusions of law.

(iv) any other conclusions required by law of the agency.

(v) a concise statement of the agency's determination or action on the case.

(c) Every final order shall be authenticated by the signatures of at least a quorum of all agency members, unless otherwise provided by law.

(d) Every final order shall immediately be mailed or delivered to each party and each other person requesting it.

() Every final order may be amended or modified by the same procedure used for the initial adoption of the order.

§6429. Ex parte consultations.

No member or employee of an agency assigned to participate in any way in the rendering of a case decision shall discuss or communicate, directly or indirectly, respecting any issue of fact or law with any person or party, except upon notice to and opportunity for all parties to participate. This section shall not apply to communicatons required for the dispostion of ex parte matters authorized by law or to communications by and among members of an agency, the agency's staff, and the agency's attorney.

SUBCHAPTER IV. LICENSES.

§6431. Hearings; notice.

(a) Hearings relating to licenses may be held at a time fixed in the discretion of the agency unless timely requested by a party or required by law or regulation.

(b) Whenever an agency proposes to grant, renew or extend a license, it may do so without notice unless a law or regulation requires notice and opportunity for a hearing.

(c) Whenever an agency proposes to deny an application for a license, timely and properly made, or to revoke, suspend, annul or withdraw a license or where it is required by law or regulation to give notice, it shall first give written notice to the licensee or applicant of the intended action and the reasons therefore. The form of the notice shall comply as far as practicable with section 6422, of this title, except that instead of setting a hearing date, it may afford the party at least 10 days to request a hearing.

(d) Notice of a hearing shall be given at least 20 days before the day it is to be held.

§6432. Effective date of denial of application, renewal, revocation, etc.

(a) Whenever an application is made to renew a license or for a new license for an activity of a continuing nature, the activity does not become illegal until the application has been finally denied by the agency.

(b) Whenever an agency proposes to revoke, suspend, annual or withdraw a license, such action shall not be effective until a final order is issued, except when the public health, safety or welfare clearly requires emergency action and the agency's order so states.

§6433. Withholding or denying licenses.

No license or renewal for which proper and timely application has been made shall be withheld or denied except for failure of the applicant to comply with the applicable laws and regulations.

§6434. Revoking, suspending, etc. licenses.

No license shall be revoked, suspended, annulled or withdrawn unless the licensee fails to comply with the lawful requirements for retention of such license.

SUBCHAPTER V. JUDICIAL REVIEW

§6441. Review of regulations.

(a) Any person aggrieved by and claiming the unlawfulness of any regulation may bring an action in the Court for declaratory relief.

() No action of an agency with respect to the making or consideration of a proposed adoption, amendment or repeal of a regulation shall be subject to review until final agency action on the proposal has been taken.

(a) When any regulation is the subject of an enforcement action in the Court, the lawfulness of such regulation may be reviewed by the Court as a defense in the action.

(b) Except as provided in (c), above, no judicial review of a regulation is available unless a complaint therefore is Filed in the Court within 30 days of the day the agency order with respect to the regulation was adopted.

() Upon review of regulatory action, the agency action shall be presumed to be valid and the complaining party shall have the burden of proving either that the action was taken in a substantially unlawful manner and that he suffered prejudice thereby, or that the regulation, where required, was adopted without a reasonable basis on the record or is otherwise unlawful. The Court, when factual determinations are at issue, shall take due account of the experience and specialized competence of the agency and of the purposes of the basic law under which the agency acted.

§6442. Review of case decisions.

(a) Any party against whom a case decision has been decided may appeal such decision to the Court.

(b) The appeal shall be filed within 30 days of the day the notice of the decision was mailed.

(c) The appeal shall be on the record without a trial de nova. If the Court determines that the record is insufficient for its review, it shall remand the case to the agency

for further proceedings on the record.

(d) The Court, when factual determinations are at issue, shall take due account of the experience and specialized competence of the agency and of the purposes of the basic law which the agency has acted. The Court's review, in the absence of actual fraud, shall be limited to a determination of whether the agency's decision was supported by substantial evidence on the record before the agency.

§6443. Mandamus for agency action.

Any person aggrieved by the failure of an agency to take action required of it by law may bring an action in the Court for an appropriate writ of mandamus.

§6444. Stay pending review.

When an action is brought in the Court for review of an agency regulation or decision, enforcement of such regulation or decision by the agency may be stayed by the Court only if it finds, upon a preliminary hearing, that the issues and facts presented for review are substantial and the stay is required to prevent irreparable harm.

§6445. Commencement of review.

No petition, appeal or other application for relief of the Court shall be considered as having been taken or made until it has been filed with the Prothonotary and served upon the agency in accordance with the rules of the Court.

SUBCHAPTER VI. REGISTRATION.

§6451. Definitions.

As used in this subchapter:

"Commission" means the Administrative Commission of Delaware as established by this subchapter.

"Register" means the regulations, together with the supplemental information required by section 6454 of this subchapter, compiled by the Commission as required by and pursuant to section 6454 of this subchapter.

§6452. Administration.

There is created the Delaware Administrative Commission composed of three members, one each to be designated by the Attorney General, the Secretary of State and the Secretary of Administrative Services, from among the members of their staffs. A chairman shall be selected by the members. The members shall not be entitled to any additional remuneration or reimbursement of expenses solely by reason of their serving on the Commission. Each member of the Commission shall serve at the pleasure of the officer designating him.

§6453. Duty of agencies.

It shall be the duty of every agency to file with the Commission within 30 days of the effective date of this chapter the full text of all of its regulations, together with such additional information as may be necessary for the purpose of listing in accordance with section 6454 of this subchapter, and thereafter to do the same as to subsequent regulations, amendments, repeals, or additions of or to any regulations coincidentally with the making of such amendments, repeals, additions, or new regulations.

§6454. Register of regulations.

The Commission shall establish and maintain an official Register of Regulations at the Office of the Secretary of State, which Register shall consist of copies of all regulations indexed by agency and subject matter, together with:

(a) Citations to the authority under which they were issued or to the laws which they implement or interpret;

(b) The place of custody of the originals and any existing official publications thereof;

(c) The place or places where the same may be inspected or copied, as well as the source in the agency from which authentic copies may be obtained by interested persons, together with any fee or other requirement for obtaining the same.

(d) When, in the judgment of the Commission, the Register is sufficiently complete, the Register shall be made available to public inspection and copies provided to any person so requesting for a fee to be set by the Commission. In addition, copies of the Register shall be provided to the Prothonotary of each county, the law library of each county, and the Director of Libraries. Any additions and corrections to the Register shall likewise be made available as soon as practicable.

§6455. Form, style and classification of regulations.

(a) The Commission, in the course of the work of compiling and maintaining the Register shall:

(1) In writing, call upon all agencies authorized to make regulations, to submit to the Commission copies of all existing regulations, as well as all subsequent amendments, repeals, additions, or new regulations.

(2) Advise agencies as to the form and style of their regulations, as well as, to the extent practicable, the classification thereof into categories of substance, procedure and organization.

for the purpose of any temporary or ultimate publication pursuant to this subchapter.

(b) In performing these functions, the Commission may formulate and distribute to agencies guidelines to expedite compliance with the provisions of this subchapter.

§6456. Report and recommendations to General Assembly

The Commission shall:

(a) Have authority, if funds available, to arrange for the temporary publication of the Register, the full text of some or all of such regulations as are procedural in nature, or the full text of selected regulations of a substantive nature for which there is need for immediate general availability.

(b) Estimate the volume or quantity of all regulations, those of a procedural or organizational nature, those dealing with matters of substance, and each of the foregoing deemed to be of sufficient importance to warrant ultimate publication and general circulation.

(c) Decide whether or not any publication program for all or part of such regulations is feasible from the standpoints of cost to either the State or users and purchasers, and useability by the interested public on the basis of content, form, current applicability, and completeness.

(d) Not later than each first day of the regular session of the General Assembly submit to it a copy of the Register, together with a report of its activities and general experience under this subchapter, including the extent of the cooperation of agencies generally, and failures therein of particular agencies, and the defiencies or success of this subchapter, and its recommendations with regard to the continued operation of the program under this subchapter or some modification thereof.

SUBCHAPTER VII. APPLICATION OF CHAPTER.

§6461. State agencies affected

This chapter shall apply only to the following agencies.

1. Alcoholic Beverage Control Commission

2. State Banking Commissioner

3. Public Service Commission

4. Real Estate Commission

5. State Human Relations Commission

6. Tax Appeal Board

7. State Insurance Commissioner

8. Industrial Accident Board

9. Unemployment Insurance Appeals Board

10. Environmental Appeals Board

11. Coastal Zone Industrial Control Board

12. State Board of Education

13. State Personnel Commission"

Section 2. All action, proceedings, hearings, re-

views, appeals and any other matters pending before or in-
stituted prior to the effective date of this Act shall be

governed by the rules and procedures then in existence for any agency covered by this Act.

Section 3. If any court determines any word,

phrase, section or part of this Act to be invalid or unconstitutional such decision shall not effect any other phrase, section or part not effected by such decision and the remainder shall remain in full force and effect.

Section 4. This Act shall become effective on July 1, 1976

Approved July 21, 1976