TITLE 29

State Government

General Regulations for State Agencies

CHAPTER 101. ADMINISTRATIVE PROCEDURES

Subchapter II. Agency Regulations


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; and

(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 this chapter.

60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2.;

(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;

(2) Any documents, papers and other materials considered by the agency in taking agency action; or

(3) 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:

a. Relate solely to the agency's internal procedural and personnel practices;

b. Pertain to ongoing enforcement investigations which have not yet resulted in agency action;

c. Are specifically exempted from disclosure by law; or

d. Are confidential or privileged for the same or similar 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.

60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2.;

(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;

(2) Rules of practice and procedure used by the agency;

(3) Delegations of authority to subordinates;

(4) Nonsubstantive changes in existing regulations to alter style or form or to correct technical errors;

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

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

Any regulation adopted pursuant to this subsection, along with a copy of the order adopting said regulation, shall be filed with the Registrar of Regulations, and the regulation so filed shall become the official regulation as defined in § 1132 of this title.

60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2; 73 Del. Laws, c. 55, § 1.;

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 Director of the Office of Management and Budget. 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 5 days of such meeting, the agency may defer action on the petition until the next succeeding regular meeting.

60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2; 75 Del. Laws, c. 88, § 16(5).;

(a) Whenever an agency proposes to formulate, adopt, amend or repeal a regulation, it shall file notice and full text of such proposals, together with copies of the existing regulation being adopted, amended or repealed, with the Registrar for publication, in full or as a summary, in the Register of Regulations pursuant to § 1134 of this title.

(1) The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, issues, possible terms of the agency action, a reference to the legal authority of the agency to act and reference to any other regulations that may be impacted or affected by the proposal;

(2) The notice shall state the manner in which persons may present their views: (i) if in writing, of the place to which and the final date by which such views may be submitted; or (ii) if at a public hearing, the date, time and place of the hearing. If a public hearing is to be held, such public hearing shall not be scheduled less than 20 days following publication of notice of the proposal in the Register of Regulations.

(b) If a public hearing will be held on the proposal, notice of the time, date, place and a summary of the nature of the proposal shall also be published in at least 2 Delaware newspapers of general circulation a minimum of 20 days prior to such public hearing and shall also be advertised at least 20 days prior to such public hearing by electronic posting on a designated State of Delaware website, approved by the Registrar of Regulations by May 1, 2013, which shall be accessible to the public.

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

60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2; 68 Del. Laws, c. 159, § 1; 71 Del. Laws, c. 48, § 8; 72 Del. Laws, c. 88, § 4; 78 Del. Laws, c. 288, § 6.;

Before adopting, amending or repealing any regulation, an agency shall give notice as prescribed in § 10115 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 recommendations may be considered with the materials by the agency in reaching its conclusions.

60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2.;

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:

a. 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;

b. Administer oaths to witnesses; and

c. 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.

(3) If the hearing notice includes a specific length of time for the holding of the hearing, the hearing shall not adjourn prior to the end of that length of time.

60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2; 78 Del. Laws, c. 356, § 1.;

(a) The opportunity for public comment shall be held open for a minimum of 30 days after the proposal is published in the Register of Regulations. The opportunity for public written comment shall be extended for a minimum of 15 days after the final public hearing when 1 or more public hearings are held on the proposal.

(b) At the conclusion of all hearings and after receipt within the time allowed of all written materials, 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;

(2) 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;

(3) 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;

(4) The exact text and citation of such regulation adopted, amended or repealed;

(5) The effective date of the order;

(6) Any other findings or conclusions required by the law under which the agency has authority to act; and

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

(c) In the event an agency makes substantive changes in the proposal as a result of the public comments, evidence and information, the agency shall consider the revised proposal as a new proposal subject to the notice requirements of § 10115 of this title and all other requirements of this subchapter. If the changes are not substantive, the agency shall not be required to repropose the regulation change. Whether a change constitutes substantive or nonsubstantive matter shall be determined by the agency head.

(d) In the event the proposing agency seeks to withdraw its proposal, the proposing agency shall notify the Registrar, in writing, that the proposal is being withdrawn and the Registrar shall publish the withdrawal information in the next issue of the Register of Regulations.

(e) The agency shall file such order with the Registrar of Regulations which shall become the official regulation as defined in § 1132 of this title.

(f) No agency shall adopt a regulation if more than 12 months have elapsed since the end of the public comment period or the last public hearing, whichever is later, on the proposed regulation.

(g) The effective date of an order which adopts, amends or repeals a regulation shall be not less than 10 days from the date the order adopting, amending or repealing a regulation has been published in its final form, in full or as a summary, in the Register of Regulations, unless such adoption, amendment or repeal qualifies as an emergency under § 10119 of this title.

60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2; 68 Del. Laws, c. 159, § 2; 71 Del. Laws, c. 48, § 9; 72 Del. Laws, c. 88, § 5; 78 Del. Laws, c. 356, § 2.;

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 the notice required by § 10115, 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; and

(5) The agency shall submit a copy of the emergency order to the Registrar for publication in the next issue of the Register of Regulations.

60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2; 71 Del. Laws, c. 48, § 10.;