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Administrative Procedure Act – Delaware

The Delaware Administrative Procedure Act (“Act”) is found in Title 29, Part X, Chapter 101 of the Annotated Code of Delaware. The purposes of the Act are:

  1. To regulate the actions and manner by which state agencies exercise their statutory powers; and
  2. Indicate the mode and extent to which agency’s action will be subjected to public remark and judicial review.

According to 29 Del. C. § 10111, the agency will adopt regulations for the benefit of the public.  These regulations include:

  1. A general narration of the organization, its mode of operations, contact addresses and telephone numbers from where public can obtain information or deal with the agency;
  2. The manner in which public can obtain information;
  3. A statement of the nature of rules of practice adopted by the agency to exercise its authority; and
  4. Statement concerning the procedures used by the agency while exercising statutory authority.

As per 29 Del. C. § 10113, certain regulations are exempted from the procedural requirements of this Act and can be adopted easily.  They are:

  1. Delegation of authority to subordinates;
  2. Making small changes or alteration in existing regulations;
  3. Correction of technical errors in existing regulation;
  4. Making amendments to existing regulations without changing its substance, to make it consistent with the critical law;
  5. Codification of existing agency decisions or ruling;
  6. Description of practice and procedures for obtaining information from the agency;
  7. Rules of practice and procedures used by the agency.

29 Del. C. § 10114 provides that a member of the agency or any other person can request the agency to initiate a proceeding to adopt, amend or repeal a regulation.  The agency can either grant the petition or deny it after giving reasons for denial.

29 Del. C. § 10118 provides opportunity for the public to comment upon a regulation within 30 days after the proposal of that regulation is published in the register of regulations.

According to 29 Del. C. § 10119, an agency can make an emergency regulation if it finds that there is immediate danger to the public health, safety and welfare, and urgent adoption, amendment or repeal of the regulation is necessary.  In such situation the agency can regulate without prior notice or hearing.  The order adopting, amending or repealing the regulation must contain in writing the reasons for agency’s decision that there is an emergency.

According to 29 Del. C. § 10121, case decisions are not applicable to decisions relating to the assessment of taxes or tax penalties made by the Tax Appeals Board and also to temporary restraining orders issued summarily with the authorization of law.

29 Del. C. § 10125 discusses that an agency can conduct public hearings and in connection with that an agency has the power to:

  • Issue subpoenas to witnesses and evidence;
  • Administer oath to witnesses;
  • Exclude privileged and other immaterial evidence;
  • Restrict excessively repeated proof;
  • Issue interrogatories;
  • Take depositions;
  • Conduct pre-hearing conferences for settlement.

According to 29 Del. C. § 10126, if a subordinate is presiding an informal conference or formal hearing, then s/he will prepare a proposed order for consideration of the agency.  The order will contain:

  • Summary of evidence and findings of facts;
  • Recommended conclusions of law;
  • Recommended decisions.

According to 29 Del. C. § 10128, an agency will make a final order or decision based upon the entire record of the case and also the summaries and recommendations of its subordinates.  The final order will contain:

  1. Findings of facts;
  2. Brief summary of evidence;
  3. Conclusions of law or any other conclusions required by the agency law;
  4. A short statement of agency’s decision or action on the case.

An agency also has the power to grant, renew or revoke a license.  Grant or renewal of license can be withheld if the party did not file the application on time or fails to comply with the applicable laws and regulations.  Agency can also revoke or suspend the license if applicant fails to comply with the lawful requirements for retaining the license.

29 Del. C. § 10141 provides that any person affected by the illegality of a regulation can bring an action in the court for declaratory relief.  Also, 29 Del. C. § 10142 provides that any party aggrieved by a case decision can appeal to the court.  The court will decide the appeal based on record and not on trial.  If the record is insufficient, the case will be remanded to the agency for further proceedings on record.

Inside Administrative Procedure Act – Delaware