Delta State Administrative Procedure Law, 2022

DELTA STATE ADMINISTRATIVE PROCEDURE LAW, 2022

1. Short title. This Law may be cited as the Delta State Administrative Procedure Law, 2022 and shall commence six months after Governor's Assent.

2. Interpretation. In this Law, unless the context otherwise requires: "Adjudication" means the process for determining facts or applying law pursuant to which an Agency formulates and issues an order. "Adjudicate" has a corresponding meaning; "Adopt" with respect to a Rule, includes to adopt a new rule and to amend or repeal an existing rule; "Adoption" has a corresponding meaning; "Agency" means any statutory corporation, board, authority, bureau, commission, institution, department, division, office, officer of the State or a Local Government that is authorised to make Rules or final decisions in adjudicatory proceedings. The term does not include the Governor, the Legislature, or the Judiciary; "Agency action" means: (i) the whole or part of an Order or Rule; (ii) the failure to issue an Order or Rule; or (iii) an Agency's performance of or failing to perform a duty, function, or activity or to make a determination required by law; "Agency head" means the individual in whom, or one or more members of the body of individuals in which, the ultimate legal authority of an Agency is vested; "Agency Record" means the Agency Rulemaking Record required by Section 9 of this Law; "Commissioner" means the State Commissioner for Information; "Delta State Code of Regulations" means the official compilation and publication of the Rules adopted, amended or repealed by an Agency pursuant to this Law; "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities; "Final Rule" means a Rule adopted, amended, or repealed under Sections 11, 12 and 13, an emergency Rule adopted under Section 15, or a Direct Final Rule adopted under Section 16 of this Law, "Guidance Document means a Record of general application developed by an Agency which lacks the force of law but states the Agency's current approach to, or interpretation of, law, or describes how and when the Agency will exercise discretionary functions. The term does not include Records described in paragraphs (i), (ii), (iii), or (iv) under the definition of a "Rule"; "Hard Copy" means physical copy of a document; "Index" means a searchable list in a Record of subjects and titles with page numbers, hyperlinks, or other connectors that link each Index entry to the text to which it refers; "Internet website" means a website on the internet or other appropriate technology or successor technology that permits the public to search a database that holds materials required to be published by the Commissioner under this Law; "License" means a permit, certificate, approval, registration, charter, or similar form of permission required by law and issued by an Agency; "Notice" means a Record containing information required to be sent to a person by this Law; "Notify" means to take steps reasonably required to inform a person, regardless of whether the person actually comes to know of the information; "Order" means an Agency decision that determines or declares the rights, duties, privileges, or other interests of a specific person; "Party" means the Agency taking an action, the person against which the action is directed, any other person named as a party, or any person permitted to intervene and that does intervene; "Person" means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, Agency, instrumentality, or any other legal or commercial entity: or "Proceeding" means any type of formal or informal Agency process or procedure commenced or conducted by an Agency. The term includes adjudication, Rulemaking, and investigation; "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; "Regulatory Notice Register" means the monthly publication that contains notices of proposed Rulemaking and newly adopted Rules by an Agency; "Rule" means the whole or a part of an Agency statement of general application that implements, interprets, or prescribes law or policy or the organisation procedure, or practice requirements of an Agency and has the force of law. The term includes the amendment or repeal of an existing Rule. The term does not include: (i) a statement that concerns only the internal management of an Agency and which does not affect private rights or procedures available to the public; (ii) an intergovernmental or interagency memorandum, directive, or communication that does not affect private rights or procedures available to the public; (iii) an opinion of the State's Attorney-General and Commissioner for Justice; (iv) a statement that establishes criteria or guidelines to be used by the Staff of an Agency in performing audits, investigations, or inspections, settling commercial disputes, negotiating commercial arrangements, or defending. prosecuting, or settling cases; (v) a form developed by an Agency to implement or interpret law or policy, or (vi) a Guidance Document, "Rulemaking" means the process for the adoption of a new Rule or the amendment or repeal of an existing Rule, "State" means Delta State of Nigeria; "Writing" means a Record inscribed on a tangible medium. "Written" has a corresponding meaning.

3. Application. This Law shall apply to all Agencies within the State unless the Agency is expressly exempted by this Law or by another law of the State.

4. Publication, compilation, indexing, and public inspection of Rulemaking documents. (1) The Commissioner shall administer this Section and other Sections of this Law that require publication. (2) The Commissioner shall- (a) publish in electronic and written format all Rulemaking-related documents listed in Section 5(2) of this Law; (b) prescribe a uniform numbering system, form and style for proposed rules; (c) create and maintain the Regulatory Notice Register and the Delta State Code of Regulations; (d) create and maintain a page or pages on the State's internet website through which the Commissioner shall make available the Regulatory Notice Register, the Delta State Code of Regulations, and any Guidance Document filed with the Commissioner by an Agency; (e) publish the Regulatory Notice Register in electronic format at least once each month; (f) upon a request, and at a reasonable fee, provide the Regulatory Notice Register in written format; (g) compile, Index by subject, and publish the Rules of an Agency to which this Law applies in the Delta State Code of Regulations; (h) make the Regulatory Notice Register and the Delta State Code of Regulations available for public inspection and for copying at a reasonable charge; (i) with notification to the Agency, make minor non-substantive corrections in spelling, grammar, and format in a proposed or Final Rule and make a Record of the corrections; and (j) make available on the State's internet website, at no charge, all the documents provided by an Agency under Section 5(2) of this Law. (3) The Regulatory Notice Register mentioned in subsection (2) of this Section shall contain: (a) notices of proposed Rulemaking prepared so that the text of the proposed Rule shows the text of any existing Rule proposed to be changed and the change proposed; (b) newly filed Final Rules prepared so that the text of a newly filed amended Rule shows the text of the existing Rule and the change that is made; (c) any other notice and material required to be published in the Regulatory Notice Register, and (d) an Index. (4) An Agency engaged in Rulemaking shall maintain the Rulemaking Record required by Section 9(4) of this Law.

5. Duties of an Agency. (1) Unless the Record is exempt from disclosure under a law of this State Duties other than this Law, an Agency shall publish on its internet website or, where the Agency does not have an internet website, on the main notice board at the Agency's principal office and, on request and for a reasonable charge, make available copies of: (a) each notice of a proposed Rule under Section 11; (b) each Rule filed under Section 20; (c) each Declaratory Statement issued under Section 7; (d) the Index of Declaratory Statements prepared under Section 7(7); (e) each Guidance Document issued under Section 17; and (f) the Index of currently effective Guidance Documents prepared under Section 17(5) of this Law. (2) An Agency shall file with the Commissioner in an electronic or other format acceptable to the Commissioner. (a) notice of the adoption of a Final Rule; (b) each Final Rule; (c) an Index of currently effective Guidance Documents under Section 17(5); and (d) any other notice or matter that an Agency is required to publish under this Law.

6. Information and recordkepping required of an Agency. An Agency shall: (a) publish a description of its organisation, stating the general course and method of its operations and the methods by which the public may obtain information or make submissions or requests; (b) publish a description of all formal and informal procedures available, including a description of all forms and instructions used by the Agency; (c) publish a description of the process for application for a License, available benefits, or other matters for which an application is appropriate, unless the process is prescribed by law other than this Law; (d) adopt Rules for the conduct of public hearings; (e) maintain the Agency's current Rulemaking Register required by Section 8(2) of this Law; (f) maintain a separate, current, and dated Index and compilation of all Final Rules filed with the Commissioner; make the Index and compilation available for public inspection and, for a reasonable charge, copying at the Agency's principal office; (g) update the Index and compilation mentioned in subparagraph (f) of this Section at least monthly and file the index and the compilation and all changes to both with the Commissioner.

7. Declaratory Statement. (1) A person may apply to an Agency for a Declaratory Statement that Declaratory interprets or applies a statute administered by the Agency or state whether or in what manner a Rule, Guidance Document, or Order issued by the Agency applies to the applicant Statement. (2) An Agency shall adopt rules prescribing the form of an application under subsection (1) of this Section and the procedure for its submission, consideration, and prompt disposition. (3) Not later than 60 days after receipt of an application under subsection (1) of this Section, an Agency shall issue a Declaratory Statement in response to the application; decline to issue the Declaratory Statement; or schedule the matter for further consideration. (4) If an Agency declines to issue a Declaratory Statement requested under subsection (1) of this Section, it shall promptly notify the applicant of its decision. The decision must be in a Record and must include a brief statement of the reasons for declining. (5) If an Agency issues a Declaratory Statement, the Statement shall contain the names of all Parties to the proceeding, the facts on which it is based, and the reasons for the Agency's conclusion. (6) If a law prohibits an Agency from disclosing certain information in its Records to protect confidentiality, the Agency may redact confidential information in the statement. (7) An Agency shall: (a) publish each currently effective Declaratory Statement; (b) maintain an Index of all of its currently effective Declaratory Statements; (c) file the Index annually with the Commissioner; (d) make the Index readily available for public inspection; and (e) make available for public inspection and for a reasonable charge, the copying of the full text of all Declaratory Statements.

8. Rulemaking Register. (1) In this Section, "Rule" does not include an Emergency Rule adopted under Section 15 or a Direct Final Rule adopted under Section 16 of this Law. (2) An Agency shall maintain an Indexed Rulemaking Register for all pending Rulemaking proceedings. (3) For each pending Rulemaking proceeding, the Rulemaking Register under subsection (2) of this Section shall state or contain: (a) the subject matter of the proposed Rule; (b) notices related to the proposed Rule; (c) how comments on the proposed Rule may be submitted; (d) the time within which comments may be submitted; (e) where comments may be inspected; (f) requests for a public hearing; (g) appropriate information concerning a public hearing, if any; and (h) the timetable for action on the proposed rule. (4) On request, the Agency shall provide, for a reasonable charge, a copy of a written Rulemaking Register maintained under subsection (2) of this Section.

9. Rulemaking Record. (1) An Agency shall maintain Rulemaking Record for each proposed Rule. (2) Unless the Record is privileged or exempt from disclosure under a law of this State other than this Law, the Record and materials shall be readily available for public inspection in the Agency's principal office and available for public display on the State's internet website maintained by the Commissioner. (3) If an Agency determines that any part of the Rulemaking Record cannot be displayed practicably or is inappropriate for public display on the internet website, the Agency shall describe the part and note that the part is not displayed. (4) A Rulemaking Record shall contain: (a) a copy of all publications in the Regulatory Notice Register relating to the Rule and the proceeding on which the Rule is based; (b) a copy of any part of the Rulemaking Register containing entries relating to the Rule and the proceeding on which the Rule is based; (c) a copy and, if prepared, an Index, of all factual material, data, studies, and reports Agency personnel relied on or consulted in formulating the proposed or Final Rule; (d) any official transcript of oral presentations made in the proceeding on which the Rule is based or, if not transcribed, any audio Recording or verbatim transcript of the presentations, and any memorandum summarising the contents of the presentations prepared by the Agency official who presided over the hearing; (e) a copy of all comments received by the Agency under Section 12 in response to the notice of proposed Rulemaking; (f) a copy of the Rule and explanatory statement filed with the Commissioner; and (g) any application for Agency Action on the rule, except an application governed by Section 7 of this Law.

10. Advance notice of proposed Rulemaking and consensus Rulemaking. (1) An Agency may gather information relevant to the subject matter of a potential Rulemaking proceeding and may solicit comments and recommendations from the public by publishing an advance notice of proposed Rulemaking in the Regulatory Notice Register and indicating Rulemaking where, when, and how persons may comment. (2) An Agency may engage in consensus Rulemaking by appointing a committee to comment or make recommendations on the subject matter of a proposed Rulemaking under active consideration within the Agency. (3) In making appointments to the committee, the Agency shall make reasonable efforts to establish a balance in representation among members of the public known to have an interest in the subject matter of the proposed Rulemaking. (4) At least annually, the Agency shall publish in the Regulatory Notice Register a list of all committees with their membership. Notice of a meeting of the committee must be published in the Regulatory Notice Register at least 15 days before the meeting. A meeting of the committee shall be open to the public. (5) A committee appointed under subsection (3) of this Section, in consultation with one or more Agency representatives, shall attempt to reach a consensus on the terms or substance of a proposed Rule. The committee shall present the consensus recommendation, if any, to the Agency. (6) The Agency shall consider whether to use it as the basis for a proposed Rule under Section 11 of this Law, but the Agency is not required to propose or adopt the recommendation. (7) This Section does not prohibit an Agency from obtaining information and opinions from members of the public about a proposed Rule by any other method or procedure.

11. Notice of proposed Rule. (1) At least 60 days before the adoption of a Rule, an Agency shall file notice of the proposed Rulemaking with the Commissioner for publication in the Regulatory Notice Register. The notice shall include: (a) a short explanation of the purpose of the proposed Rule; (b) a citation or reference to the specific legal authority authorising the proposed Rule; (c) the text of the proposed Rule; (d) where, when, and how a person may comment on the proposed Rule and request a hearing; and (e) a citation to and summary of each scientific or statistical study, report, or analysis (if any) that served as a basis for the proposed rule, together with an indication of how the full text of the study, report, or analysis may be obtained. (2) Not later than three days after publication of the notice of the proposed Rulemaking in the Regulatory Notice Register, the Agency shall make the notice available for collection at its principal office or send it electronically to each person that has made a timely request to the Agency for a physical or electronic copy of the notice. An Agency may charge a reasonable fee for a hard copy requested by a person.

12. Public participation. (1) An Agency proposing a Rule shall specify a public comment period of at least 50 days after publication of notice of the proposed Rulemaking. during which a person may submit information and comment on the proposed rule. (2) The information or comment may be submitted in an electronic or written format. The Agency shall consider all information and comment on a proposed Rule which is submitted pursuant to this subsection within the comment period. (3) An Agency may consider any other information it receives concerning a proposed Rule during the Rulemaking. Any information considered by the Agency must be incorporated into the Record under Section 9(4)(c) of this Law. The information need not be submitted in an electronic or written format. Nothing in this Section prohibits an Agency from discussing with any person at any time the subject of a proposed Rule. (4) Unless a bearing is required by a law of this State other than this Law, an Agency is not required to hold a hearing on a proposed Rule but may do so. A hearing shall be open to the public, recorded, and held at least 10 days before the end of the public comment period. (5) A hearing on a proposed Rule may not be held earlier than 20 days after notice of its location, date and time is published in the Regulatory Notice Register. (6) An Agency representative shall preside over a bearing on a proposed Rule. If the representative is not the Agency head, the representative shall prepare a memorandum summarising the contents of the presentations made at the hearing for consideration by the Agency head.

13. Time limit on adoption of Rule. (1) An Agency shall not adopt a Rule until the public comment period has ended. (2) Not later than two years after a notice of proposed Rulemaking is published, the Agency shall adopt the Rule or terminate the Rulemaking by publication of a notice of termination in the Regulatory Notice Register. (3) The Agency may extend the time for adopting the Rule once for an additional two years by publishing a statement of good cause for the extension but must provide for additional public participation as provided in Section 12 of this Law before adopting the rule. (4) An Agency shall file an adopted Rule with the Commissioner not later than 30 days after the adoption of the Rule. (5) A Rule is void unless it is adopted and filed within the time limits in this Section.

14. Variance between proposed and Final Rule. An Agency shall not adopt a Rule that differs from the Rule proposed in the notice of proposed Rulemaking unless the Final Rule has a logical connection to the Rule proposed in the notice.

15. Emergency Rule. (1) If an Agency: (a) finds that an imminent peril to the public health, safety, or welfare or the loss of funding for an Agency programme requires the immediate adoption of an Emergency Rule, and (b) publishes in a Record its reasons for that finding, the Agency, without prior notice or hearing or on any abbreviated notice and hearing that it finds practicable, may adopt an Emergency Rule without complying with Sections 11, 12 and 13 of this Law. (2) The Emergency Rule may be effective for not longer than 180 days renewable once for no more than 180 days. (3) The adoption of an Emergency Rule does not preclude the adoption of a Rule under Sections 11, 12 and 13 of this Law. (4) The Agency shall: (a) file with the Commissioner a Rule adopted under this Section as soon as practicable given the nature of the emergency; (b) publish the Rule on its internet website or, where the Agency does not have an internet website, on the main notice board at the Agency's principal office; and (c) notify persons that have requested notice of Rules related to that subject matter. (5) This Section does not prohibit: (a) the adoption of a new Emergency Rule if, at the end of the effective period of the original Emergency Rule, the Agency finds that the imminent peril to the public health, safety, or welfare or the loss of funding for an Agency program still exists; and (b) a challenge to the validity of an Emergency Rule before a competent court.

16. Direct Final Rule. (1) If an Agency proposes to adopt a Rule which is expected to be noncontroversial, it may use Direct Final Rulemaking authorised by this Section and must comply with Section 11(1)(a), (b), (c) and (c), Section 11(2), and Section 19 of this Law. (2) The proposed Rule must be published in the Regulatory Notice Register with a statement by the Agency that it does not expect the adoption of the Rule to be controversial and that the proposed Rule takes effect 30 days after publication if no objection is received. (3) If no objection is received, the Rule becomes final under Section 21(5) of this Law. (4) If an objection to the Rule is received from any person not later than 30 days after publication of the notice of the proposed Rule, the proposed Rule does not become final. The Agency shall file notice of the objection with the Commissioner for publication in the Regulatory Notice Register, and may proceed with Rulemaking under Sections 11, 12 and 13 of this Law.

17. Guidance Document. (1) An Agency may issue a Guidance Document without following the procedures set out in Sections 11, 12 and 13 of this Law. (2) An Agency that proposes to rely on a Guidance Document to the detriment of a person in any administrative proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the document. The Agency may not use a Guidance Document to foreclose consideration of issues raised in the document. (3) If an Agency proposes to act in an adjudication at variance with a position expressed in a Guidance Document, it shall provide a reasonable explanation for the variance. If an affected person in an adjudication may have relied reasonably on the Agency's position, the explanation must include a reasonable justification for the Agency's conclusion that the need for the variance outweighs the affected person's reliance interest. (4) An Agency shall: (a) maintain an Index of all its effective Guidance Documents; (b) publish the Index on its internet website or, where the Agency does not have an internet website, on the main notice board at the Agency's principal office; and (c) make all Guidance Documents available to the public and file the Index annually with the Commissioner. (5) The Agency may not rely on a Guidance Document or cite it as precedent against any party to a proceeding unless the Guidance Document is published on its internet website or, where the Agency does not have an internet website, on the main notice board at the Agency's principal office. (6) A person may apply to an Agency under Section 22 of this Law to adopt a Rule in place of a Guidance Document. (7) A person may apply to an Agency to revise or repeal a Guidance Document. Not later than 60 days after submission of the application, the Agency shall: (a) revise or repeal the Guidance Document; (b) initiate a proceeding to consider a revision or repeal; or (c) refuse the application in a Record and state its reasons for the refusal.

18. Required information for Rule. A Final Rule filed by an Agency with the Commissioner under Section 20 of this Law shall contain the text of the Rule and be accompanied by a Record that contains: (a) the date the Final Rule was adopted by the Agency; (b) a reference to the specific statutory or other authority authorising the Rule; (c) any finding required by law as a prerequisite to adoption or effectiveness of the Rule; (d) the effective date of the Rule; and (e) the concise explanatory statement required by Section 19 of this Law.

19. Concise explanatory statement. When an Agency adopts a Final Rule, the Agency shall issue a concise explanatory statement that contains: (a) the Agency's reasons for adopting the Rule, including the Agency's reasons for not accepting comments made in respect of the Rule; and (b) subject to Section 14 of this Law, the reasons for any change between the text of the proposed Rule contained in the notice of proposed Rulemaking and the text of the Final Rule.

20. Filing of Rule. (1) An Agency shall file in written and electronic form with the Commissioner each Final Rule. (2) In filing a Final Rule, an Agency shall use a standard form prescribed by the Commissioner. (3) The Agency shall file the Rule not later than 15 days after adoption. (4) The Commissioner shall: (a) maintain a permanent register of all filed Rules and concise explanatory statements for the Rules; (b) affix to each Final Rule a certification of the time and date of filing; and (c) publish the notice of each Final Rule in the Regulatory Notice Register.

21. Effective date of Rule. (1) Except as otherwise provided in this Section, a Rule becomes effective 30 days after publication of the Rule in the Delta State Code of Regulations. (2) A Rule may become effective on a date later than that established by subsection (1) of this Section if that date is specified in the Rule or required by law other than this Law. (3) A Rule becomes effective immediately on its filing with the Commissioner or on any subsequent date earlier than that established by subsection (1) of this Section if it is required to be implemented by a certain date by law other than this Law. (4) An Emergency Rule under Section 15 of this Law becomes effective on adoption by the Agency. (5) A Direct Final Rule under Section 16 of this Law to which no objection is made becomes effective 30 days after publication, unless the Agency specifies a later effective date.

22. Application for adoption of Rule. (1) Any person may apply to an Agency to adopt a Rule. An Agency shall Application prescribe by Rule the form of the application and the procedure for its submission, consideration, and disposition. (2) Not later than 60 days after submission of a petition, the Agency shall: (a) deny the petition in a Record and state its reasons for the denial; or (b) initiate Rulemaking.

23. Licenses. (1) If the holder of a license has made timely and sufficient application for the renewal of the license or a new license for any activity of a continuing nature, the existing license does not expire until the Agency takes final action on the application. (2) A revocation, suspension, annulment, or withdrawal of a license is not lawful unless, before the institution of Agency proceedings, the Agency notifies the license holder of the facts or conduct that warrants the intended action and the license holder is given an opportunity to show compliance with all lawful requirements for the retention of the license. (3) If the Agency finds that imminent peril to public health, safety, or welfare requires emergency action and incorporates a finding to that effect in its Order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings must be promptly instituted and concluded.

24. Construction. (1) This Law shall not relieve any Agency from compliance with any construction statute requiring that its Rules be filed with or approved by designated persons or bodies before such Rules become effective. (2) This Law shall apply only to Rulemaking, adjudicatory and other proceedings commencing on or after the commencement date of this Law.