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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsDecember 2015

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On October 1, 2015 (Volume 19, Issue 4), OMB published in the Delaware Register of Regulations its notice of proposed guidelines, pursuant to 29 Del.C. §10115. It was requested that written materials and suggestions from the public concerning the proposed guidelines be delivered to OMB by November 5, 2015 or be presented at a public hearing on October 20, 2015, after which time OMB would review information, factual evidence and public comment to the said proposed guidelines.
Agency response: Thank you for your comment. The statute (29 Del.C. §10403 (4)) and authorizing legislation provide the definition of "Small Business" used in the guidelines. As such it is not within the scope of the proposed guidelines to expand the definition of "Small Business" beyond what is in the statute, and the guidelines will not be amended.
Agency response: Thank you for your comment. The General Assembly has defined in statute procedures for the proper notification of the public of a proposed regulation and it is beyond the scope of these proposed guidelines to mandate additional requirements over and above those in statute. However the following language has been added to encourage agencies to disseminate Regulatory Flexibility Analyses (RFA) and Regulatory Impact Statements (RIS) to stakeholders:
"State agencies are encouraged to widely disseminate proposed regulations and any accompanying RFAs and RIS's in an effort to reach impacted citizens and interest groups. Citizens and interest groups are encouraged to subscribe to receive proposed regulations from agencies by selecting "Subscription Services" on the Delaware Register of Regulations website and to visit the online Delaware Public Meeting calendar for notices of agency meetings and regulatory hearings. Proposed regulations are held open for public comment for a minimum of 30 days after a proposal is published in the Register of Regulations."
Agency response: Thank you for your comment. The General Assembly has defined the appeals process in 29 Del.C. §10141. Additional appeals provisions over and above current statutory provisions are beyond the scope of the proposed guidelines.
Agency response: Thank you for your comment. Please refer to the response to the second comment from David Stevenson.
Agency response: Thank you for your comment. It is beyond the scope of the proposed guidelines to mandate an agency report each entity consulted in developing the regulation and RFA/RIA. However, the following guidance has been added as optional to the guidelines:
Agency response: Thank you for your comment. Please refer to the first response to David Stevenson, Caesar Rodney Institute.
Agency response: Agency response: Thank you for your comment. Please refer to the third response to David Stevenson, Caesar Rodney Institute.
Agency response: Thank you for your comment. While we have no reason to believe the General Assembly meant to exclude the businesses you mention, the definition of "Small Business" is established in the authorizing legislation and in Delaware statute. We have added guidance to the definition of "personal service", based on language found in 8 Del.C. §603 as follows that we believe addresses your concern:
Agency response: Thank you for your comment. Please refer to the first response to David Stevenson, Caesar Rodney Institute.
Agency response: Thank you for your comment. The assertion of an exemption claim as permitted under the statute is made by the agency proposing the regulation. The proposed regulations -- including any exemption claim specified on the standard form for an RFA/RIS -- would be open for public comment for a minimum of 30 days after a proposal is published. Any public comments on the exemption claim would be reviewed by the agency. Ultimately approval or disapproval rests with the agency head who issues any final findings and regulatory orders.
Comment: Following #4 above, we think there should be a public hearing process for agencies that claim their regulations are exempt. Such public hearings should be noted in a more user friendly format than the one used for the October 20, 2015 public hearing (ie the October State Register of Regulations) which we understand had only one member of the public in attendance. Small businesses do not regularly scour this register; and instead to benefit small business as is the scope and intent of the legislation, the notice for hearing should be circulated to organizations of small businesses likely to be impacted including Chambers of Commerce, business groups and trade associations such as us, Realtors, Engineers, Architects, etc. It should also be published using social media outlets.
Agency response: Thank you for your comments. Please refer to the above response regarding the 30 day comment period and the response to the second comment from David Stevenson.
Agency response: Thank you for your comments. The proposed guidelines are intended only to guide the preparation of RFAs and RIAs and do not address the volume of regulations.
Comment: On p. 290 of the Register publication, under "Guidelines", under the section of "Introduction", we suggest the addition of the following sentences at the end of the first paragraph:
Agency response: Thank you for your comments. The Introductions on page 290 has been amended to read as follows:
Comment: On p. 297 of the Register publication, under "Regulatory Flexibility Analysis and Impact Statement Form for Proposed New and Amended Regulations Affecting Small Businesses or Individuals, under the section of "Introduction", we suggest the addition of the following sentence at the end of the first paragraph of that section:
Agency response: Thank you for your comments. The Introductions on page 297 has been amended to read as follows:
Comment: On p 297 of the Register publication, under "Regulatory Flexibility Analysis and Impact Statement Form for Proposed New and Amended Regulations Affecting Small Businesses or Individuals, under the section of "Introduction", we suggest the addition of the following sentence at the end of the last paragraph of that section:
Agency response: Thank you for your comment. The recommended sentence has been added to the paragraph.
Agency response: Thank you for your comment. The final version will be corrected.
Comment: On p 292 of the Register publication, under the section of "Regulatory Flexibility Analysis (RFA)", we believe this section of the proposed regulation should specifically state who determines that a proposed regulation is "substantially likely to impose additional costs or burdens….". Thus we suggest the following additional language be inserted into the first sentence of the first paragraph of that section as follows: (added language in italics).
Agency response: Thank you for your comment. Though we believe the recommendation may be best practice for agencies to follow we do not agree that it should be mandatory. The paragraph has been amended to include that point.
The Department finds that the proposed guidelines as set forth in the October 2015 Register of Regulations with the insubstantial changes noted above should be adopted. While the Office of Management and Budget appreciates the other suggestions brought forth, it is felt the existing content of the guidelines as published in the October 2015 Register of Regulations with the noted changes fulfills the requirements of the authorizing legislation.
Beginning January 1, 2016, agencies [proposing submitting proposed] new or amended regulations that affect small businesses or individuals are required, under the new Regulatory Transparency and Accountability Acts of 2015 (see 80 Del. Laws, c. 112 and 113), to submit a Regulatory Flexibility Analysis (RFA) and a Regulatory Impact Statement (RIS) with the proposed regulation to the Registrar of Regulations (see 29 Del.C. Ch. 104). [For agencies proposing amendments to existing regulations, the promulgating agency shall only be required to complete the RFA and RIS for the proposed amended portion of the existing regulation, and not for the entire existing regulation.]
The guidelines are intended to clarify the requirements contained in the Acts as well as provide state agencies with a specific form and general format for preparing and publishing the RFA and RIS. The form is also intended to benefit the small businesses and individuals impacted by proposed regulations by ensuring a reasonable level of consistency in the formatting of RFAs and RISs across different agencies and regulations. [State agencies are encouraged to widely disseminate proposed regulations and any accompanying RFAs and RIS's in an effort to reach impacted citizens and interest groups. Citizens and interest groups are encouraged to subscribe to receive proposed regulations from agencies by selecting "Subscription Services" on the Delaware Register of Regulations website and to visit the online Delaware Public Meeting calendar for notices of agency meetings and regulatory hearings. Proposed regulations are held open for public comment for a minimum of 30 days after a proposal is published in the Register of Regulations.]
Small business” means any not-for-profit enterprise, sheltered workshop, or business enterprise which is engaged in any phase of manufacturing, agricultural production or personal service, regardless of the form of its organization, when such enterprise or workshop employs fewer than 50 persons, has gross receipts of less than $10,000,000 and is not owned, operated or controlled by another business enterprise.
[A "personal service" is generally construed to mean the rendering of a service to the public, whether by an individual or a legal entity, that requires a license or other legal authorization.]
Individual” means any natural person, including any sole proprietorship. The term “individual” does not include any natural person affected by a regulation in his/her capacity as an officer, director, or employee of an organization that is not a “small business”; e.g. the CEO of a large business.
( ) Exemption A: This proposed regulation is not subject to Chapter 104, Title 29 of the Delaware Code, because it will not apply to small businesses or individuals at all.
Discussion: If Exemption A is checked, then the agency is asserting that the proposed regulation does not apply to any persons that meet the definition of “small business” or “individuals”. For example, a proposed regulation that applies to governmental entities only, and does not impact any small businesses or individuals would not be subject to the RFA or RIS section of the Delaware Code.
( ) Exemption B: The agency, board, or commission is exempt from completing the RFA and Impact Statement due to the nature of the proposed regulation.
Discussion: If Exemption B is checked, the agency must also further clarify the nature of the proposed regulation by choosing one exemption that best fits from the list of subgroup options that follows (B1, B2, B3, B4, or B5):
( ) B1. This proposed regulation is not substantially likely to impose additional costs or burdens upon individuals and/or small businesses. Explain this conclusion:
Discussion: If the B1 exemption is selected, the agency must explain how it arrived at the conclusion that the regulation is not likely to impose additional costs or burdens upon small businesses or individuals.
( ) B2. This is an emergency regulation pursuant to 29 Del.C. §10119.
Discussion: Emergency regulations are exempt, even if they affect small businesses or individuals. Such regulations must qualify as emergency regulations under the Administrative Procedures Act.
( ) B3. This proposed regulation is exempt from the procedural requirements of the Administrative Procedures Act, 29 Del.C. §10113(b). Choose which reason:
( )B3a. Descriptions of agency organization, operations and procedures for obtaining information
( )B3b. Rules of practice and procedure used by the agency
( )B3c. Delegations of authority to subordinates
( )B3d. Nonsubstantive changes in existing regulations to alter style or form or to correct technical errors
( )B3e. Amendments to existing regulations to make them consistent with changes in basic law but which do not otherwise alter the substance of the regulations
( )B3f. Codifications of existing agency or judicial principles of decision derived from previous decisions and rulings
Discussion: Certain regulations are exempt from the procedural requirements of the Administrative Procedures Act pursuant to 29 Del.C. §10113(b). An agency, board, or commission may determine that one or more of the exemptions set forth above apply. If the B3 exemption is chosen, the agency, board, or commission must select the statutory reason (B3a, B3b, B3c. etc.).
( ) B4. This proposed regulation defines standard of conduct or qualifications of individuals applying for licensure or as licensed professionals. Identify which professional license or professional qualification this would apply to: ______________________________________________________________
Discussion: Regulations dealing solely with standards for the licensing of professionals are exempt. Standards and procedures for licensing and qualifications for various professions and occupations are found throughout the Delaware Code, and many are found in Title 24. It is important to note, that the B4 exemption may not be claimed if a proposed regulation would affect a business in ways other than standards for professional licensing qualification or certification. In such case, the agency, board, or commission would be required to prepare an RFA and RIS specific to how the aspects of the regulation unrelated to standards of conduct and qualifications of individuals impacts such small businesses.
( ) B5. Regulations that are required by federal law and/or have already complied with the federal Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. (If this is checked, the agency, board, or commission shall cite the federal law, regulation, directive, or guidance strictly mandating such state regulation and shall attach any applicable Federal RFA related to the regulation, if available. Attach the Federal RFA statement to this form, or provide the URL here: ____________________________________________).
Discussion: Where a Federal RFA has been published related to a state regulation required by federal law, the agency, board, or commission may select this exemption, and no state RFA or RIS is required. Include the copy of the Federal RFA or provide a URL, for the purpose of informing the public and businesses as to where to find more information.
Where no Federal RFA has been published related to a regulation required by Federal law, and where considering whether the B5 exemption may be used, it is important to distinguish between federally required specific regulation(s) or, a federal directive, that may be eligible for this exemption, versus general regulatory authority which may not be eligible for this exemption.
In the case of federally required specific regulations, agencies may receive guidance from their federal counterparts that a specific regulation or amendment to an existing regulation is required to be promulgated by the state agency, board, or commission to remain in compliance with the requirements of the federal program. The agency, board, or commission may be given flexibility to alter the substance of the proposed regulation. These regulations or amendments are exempt from the requirements of the RFA and RIS. If claiming this exemption, an agency, board, or commission should discuss and cite (if applicable) the specific federal requirement prompting the promulgation of the state regulation or amendment, and why this exemption should apply.
Other regulations may be promulgated pursuant to general regulatory authority authorized by the federal government, and promulgation of regulation by the state agency, board or commission is not mandatory. State agencies, boards, and commissions are given substantial flexibility to compose and promulgate these regulations. These regulations and any subsequent amendments are subject to the requirements of the RIS and RFA.
The RFA is intended to show the public how the state agency, board, or commission made its determination that a regulation might impact small businesses or individuals. The RFA is required when [the promulgating agency has determined that] a proposed regulation is substantially likely to impose additional costs or burdens on small businesses and individual regulated parties. [A best practice for agencies, boards, and commissions in determining whether a proposed regulation would impact small businesses or individuals, is to work with agency executive leadership and to consult with legal counsel when necessary.]
State agencies, boards, and commissions proposing to adopt or amend a regulation that is substantially likely to impose additional costs or burdens upon individuals and/or small businesses shall consider, where applicable, lawful, feasible and desirable, the following methods of reducing the additional costs and burdens of proposed regulations on individuals and small businesses:
Discussion: If referencing specific citations in Delaware Code, include the citation and provide a URL to the relevant section or chapter of the Code.
Discussion: Include rationale for the need and purpose for the regulation. The response can include text from the preamble of the proposed regulation.
Discussion: Explain any anticipated benefits, even if they are qualitative rather than quantitative (public health, public safety, security, etc.).
Discussion: “Types of individuals and or small businesses” means explaining which types of businesses (e.g. dry cleaners, salons, construction companies, etc.) or individuals. Estimate the number of businesses or individuals if this is available (e.g., there are over 3500 licensed food establishments operating in the State of Delaware, therefore if a regulation that affects all food establishments is proposed, you can estimate that 3500 businesses are affected by such a change).
Provide a good-faith estimate of the potential cost of compliance for individuals and/or small businesses, which at minimum shall include the projected reporting, recordkeeping, and other administrative costs required to comply with the proposed regulation:
Discussion: When estimating the cost of compliance for individuals and/or small businesses, absolute costs are not required; a general estimate or a range of costs will suffice. The intent of this question is not to define every possible cost, but rather to generally assess the types of costs, time, and materials that might be imposed on small businesses or individuals as a result of the implementation of the regulation. Questions the agency, board, or commission should ask when estimating the cost of compliance include:
Does the regulation require capital costs (building costs, material costs, upgrades to property or structures, retrofitting of systems, etc.)?
Does the regulation require paperwork of any kind for the small business or individual? If so, is it ongoing reporting or one time? How long will the paperwork take (a general range of time)?
Does the regulation require new or changed record keeping that will create new processes or change processes already in place for small businesses or individuals?
Will the class of small businesses or individuals need to hire an outside professional to comply with the proposed regulation (such as an attorney, accountant, tax advisor, environmental consultant, engineering firm, etc.)? If an outside professional is needed, how many hours will they be needed to assist? Will retaining or hiring the outside professional be on an ongoing basis?
Cost Estimate Option 1: free-text response.
Cost Estimate Option 2: series of questions to guide the response along with a free-text response.
Cost Estimate Option 2:
Does the regulation require small businesses to cooperate with audits, inspections, or other regulatory enforcement activities?
Does the regulation require small businesses to [obtain] additional education to keep up to date with regulatory requirements?
Discussion: This question is similar to the Regulatory Flexibility Analysis, where the agency, board, or commission explained each alternative method and what the conclusions were after considering each method.
Discussion: This question is optional. If the agency, board, or commission chooses to estimate the amount of time it spent on preparing this statement, please include that information here.
[(Optional) Agencies are encouraged to list trade or industry groups, small businesses, or other stakeholders such as currently regulated parties that were consulted by the agency, board, or commission in preparing this RFA and RIS. The agency, board, or commission is further encouraged to send them a copy of the RFA and RIS upon completion:
Beginning January 1, 2016[,] agencies [proposing submitting proposed] new or amended regulations that affect small businesses or individuals are required, under the new Regulatory Transparency and Accountability Acts of 2015 (see 80 Del. Laws, c. 112 and 113), to submit a Regulatory Flexibility Analysis (RFA) and a Regulatory Impact Statement (RIS) with the proposed regulation to the Registrar of Regulations (see 29 Del.C. Ch. 104).
State agencies proposing new or [revised amended] regulations that are substantially likely to impose additional costs or burdens on small businesses1 or individuals2 must submit a Regulatory Flexibility Analysis (RFA) and a Regulatory Impact Statement (RIS) to the Registrar of Regulations, with the proposed regulation. [For agencies proposing amendments to existing regulations, the promulgating agency shall only be required to complete the RFA and RIS for the proposed amended portion of the existing regulation, and not for the entire existing regulation.]
( ) Exemption A: This proposed regulation is not subject to Chapter 104, Title 29 of the Delaware Code, because it will not apply to small businesses or individuals at all.
( ) Exemption B: The agency, board, or commission is exempt from completing the RFA and Impact Statement due to the nature of the proposed regulation.
( ) B1. This proposed regulation is not substantially likely to impose additional costs or burdens upon individuals and/or small businesses. Explain this conclusion:
( ) B2. This is an emergency regulation pursuant to 29 Del.C. §10119.
( ) B3. This proposed regulation is exempt from the procedural requirements of the Administrative Procedures Act, 29 Del.C. §10113(b). Choose which reason:
( )B3a. Descriptions of agency organization, operations and procedures for obtaining information
( )B3b. Rules of practice and procedure used by the agency
( )B3c. Delegations of authority to subordinates
( )B3d. Nonsubstantive changes in existing regulations to alter style or form or to correct technical errors
( )B3e. Amendments to existing regulations to make them consistent with changes in basic law but which do not otherwise alter the substance of the regulations
( )B3f. Codifications of existing agency or judicial principles of decision derived from previous decisions and rulings
( ) B4. This proposed regulation defines standard of conduct or qualifications of individuals applying for licensure or as licensed professionals. Identify which professional license or professional qualification this would apply to:
( ) B5. Regulations that are required by federal law and/or have already complied with the federal Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. (If this is checked, the agency, board, or commission shall cite the federal law, regulation, directive, or guidance strictly mandating such state regulation and shall attach any applicable Federal RFA related to the regulation, if available. Attach the Federal RFA statement to this form, or provide the URL):
State agencies, boards, and commissions proposing to adopt or amend a regulation that is substantially likely to impose additional costs or burdens upon individuals and/or small businesses shall consider, where applicable, lawful, feasible and desirable, the following methods of reducing the additional costs and burdens of proposed regulations on individuals and small businesses:
Provide a good-faith estimate of the potential cost of compliance for individuals and/or small businesses, which at minimum shall include the projected reporting, recordkeeping, and other administrative costs required to comply with the proposed regulation. Use the below space for a free-text response (Cost Estimate Option 1) or, use the questionnaire below to guide the response (Cost Estimate Option 2):
Does the regulation require small businesses to [obtain] additional education to keep up to date with regulatory requirements?
(Optional) Estimate the amount of agency, board, or commission staff hours it took to prepare this RFA and RIS statement:

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Last Updated: December 31 1969 19:00:00.
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