093_SB1520

 
                                     LRB093 03658 JAM 03687 b

 1        AN ACT concerning administrative procedure.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  5.  The Illinois Administrative Procedure Act is
 5    amended by  changing  Sections  5-40,  5-100,  5-110,  5-115,
 6    5-120, and 5-125 as follows:

 7        (5 ILCS 100/5-40) (from Ch. 127, par. 1005-40)
 8        Sec. 5-40.  General rulemaking.
 9        (a)  In all rulemaking to which Sections 5-45 and 5-50 do
10    not apply, each agency shall comply with this Section.
11        (b)  Each  agency  shall give at least 45 days' notice of
12    its intended action to the general public.  This first notice
13    period shall commence on the first day the notice appears  in
14    the  Illinois  Register.   The first notice shall include all
15    the following:
16             (1)  The text of the proposed rule, the old and  new
17        materials  of  a  proposed  amendment, or the text of the
18        provision to be repealed.
19             (2)  The specific statutory citation upon which  the
20        proposed  rule,  the proposed amendment to a rule, or the
21        proposed repeal of a rule is based and  by  which  it  is
22        authorized.
23             (3)  A  complete  description  of  the  subjects and
24        issues involved.
25             (3.5)  A descriptive title or other  description  of
26        any published study or research report used in developing
27        the  rule,  the identity of the person who performed such
28        study, and a description of where the public may obtain a
29        copy of any such study or research report. If  the  study
30        was  performed by an agency or by a person or entity that
31        contracted with the agency for  the  performance  of  the
 
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 1        study,   the   agency  shall  also  make  copies  of  the
 2        underlying data available to members of the  public  upon
 3        request  if  the  data  are not protected from disclosure
 4        under the Freedom of Information Act.
 5             (4)  For all proposed rules and proposed  amendments
 6        to  rules,  an  initial  regulatory  flexibility analysis
 7        containing a description of the types of small businesses
 8        subject to the rule; a brief description of the  proposed
 9        reporting, bookkeeping, and other procedures required for
10        compliance  with the rule; and a description of the types
11        of professional skills necessary for compliance.
12             (5)  The time, place, and manner in which interested
13        persons may present their views and  comments  concerning
14        the proposed rulemaking.
15        During  the  first notice period, the agency shall accept
16    from  any  interested  persons  data,  views,  arguments,  or
17    comments. These may, in the  discretion  of  the  agency,  be
18    submitted  either  orally  or in writing or both.  The notice
19    published in the Illinois Register shall indicate the  manner
20    selected by the agency for the submissions.  The agency shall
21    consider all submissions received.
22        The  agency  shall  hold a public hearing on the proposed
23    rulemaking during the first notice period if (i)  during  the
24    first  notice  period, the agency finds that a public hearing
25    would facilitate the submission of views  and  comments  that
26    might  not otherwise be submitted or (ii) the agency receives
27    a request for a public hearing,  within  the  first  14  days
28    after publication of the notice of proposed rulemaking in the
29    Illinois Register, from 25 interested persons, an association
30    representing  at  least 100 interested persons, the Governor,
31    the Joint Committee on Administrative Rules,  or  a  unit  of
32    local  government  that  may  be  affected.   At  the  public
33    hearing, the agency shall allow interested persons to present
34    views  and  comments  on  the  proposed rulemaking.  A public
 
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 1    hearing in response to a request for a  hearing  may  not  be
 2    held less than 20 days after the publication of the notice of
 3    proposed rulemaking in the Illinois Register unless notice of
 4    the  public  hearing  is  included  in the notice of proposed
 5    rulemaking. A public hearing on proposed rulemaking  may  not
 6    be  held  less  than  5  days before submission of the notice
 7    required under subsection (c) of this Section  to  the  Joint
 8    Committee on Administrative Rules.  Each agency may prescribe
 9    reasonable  rules  for  the  conduct  of  public  hearings on
10    proposed  rulemaking  to  prevent  undue  repetition  at  the
11    hearings.  The hearings  must  be  open  to  the  public  and
12    recorded  by  stenographic  or mechanical means. At least one
13    agency representative shall be present during the hearing who
14    is qualified to respond to general questions from the  public
15    regarding the agency's proposal and the rulemaking process.
16        (c)  Each  agency  shall provide additional notice of the
17    proposed rulemaking to the Joint Committee on  Administrative
18    Rules.  The  period  commencing  on the day written notice is
19    received by the Joint Committee shall be known as the  second
20    notice  period  and  shall  expire  45 days thereafter unless
21    before that time the agency  and  the  Joint  Committee  have
22    agreed  to extend the second notice period beyond 45 days for
23    a period not to exceed an additional 45 days  or  unless  the
24    agency  has  received a statement of objection from the Joint
25    Committee or notification from the Joint  Committee  that  no
26    objection  will  be  issued.  The written notice to the Joint
27    Committee shall include (i) the  text  and  location  of  any
28    changes  made  to  the  proposed  rulemaking during the first
29    notice period in a form prescribed by  the  Joint  Committee;
30    (ii) for all proposed rules and proposed amendments to rules,
31    a  final regulatory flexibility analysis containing a summary
32    of issues raised by small businesses during the first  notice
33    period and a description of actions taken on any alternatives
34    to the proposed rule suggested by small businesses during the
 
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 1    first  notice  period,  including  reasons  for rejecting any
 2    alternatives not utilized; and (iii) if a written request has
 3    been made by the Joint Committee within 30 days after initial
 4    notice appears in the Illinois Register under subsection  (b)
 5    of  this  Section,  an analysis of the economic and budgetary
 6    effects of the proposed rulemaking. After commencement of the
 7    second notice period, no substantive change may be made to  a
 8    proposed  rulemaking  unless  it  is made in response to a an
 9    objection or suggestion of the Joint Committee.   The  agency
10    shall  also  send  a copy of the final regulatory flexibility
11    analysis to each small business that has presented  views  or
12    comments  on  the proposed rulemaking during the first notice
13    period and to any other  interested  person  who  requests  a
14    copy.   The  agency may charge a reasonable fee for providing
15    the copies to cover postage and handling costs.
16        (d)  After the expiration of the  second  notice  period,
17    the agency shall submit its final proposed rule, amendment to
18    a  rule,  or  repeal of a rule to the Joint Committee. If the
19    Joint Committee and the General Assembly  approve  the  rule,
20    amendment  to  a  rule,  or  repeal  of a rule as provided in
21    subsection (b) of Section 5-110, after notification from  the
22    Joint  Committee that no objection will be issued, or after a
23    response by the agency to a statement of objections issued by
24    the Joint Committee,  whichever  is  applicable,  the  agency
25    shall  file, under Section 5-65, a certified copy of the each
26    rule, amendment to a rule modification, or repeal  of  a  any
27    rule  adopted  by  it.   The  copy  shall be published in the
28    Illinois Register.  Each rule hereafter  adopted  under  this
29    Section  is  effective  upon  filing unless a later effective
30    date  is  required  by  statute  or  is  specified   in   the
31    rulemaking.
32        (e)  No rule or modification or repeal of any rule may be
33    adopted,  or filed with the Secretary of State, more than one
34    year  after  the  date  the  first  notice  period  for   the
 
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 1    rulemaking under subsection (b) commenced.  Any period during
 2    which  the  rulemaking  is  prohibited from being filed under
 3    Section 5-115 shall not be  considered  in  calculating  this
 4    one-year time period.
 5    (Source: P.A. 92-330, eff. 1-1-02.)

 6        (5 ILCS 100/5-100) (from Ch. 127, par. 1005-100)
 7        Sec.  5-100.   Powers  of  the Joint Committee. The Joint
 8    Committee shall have the following powers under this Act:
 9        (a)  The function of the Joint  Committee  shall  be  the
10    promotion  of  adequate  and  proper rules by agencies and an
11    understanding on the part  of  the  public  respecting  those
12    rules.   This  function  shall  be  advisory  only, except as
13    provided otherwise in this Act. in Sections 5-115 and 5-125.
14        (b)  The  Joint  Committee  may  undertake  studies   and
15    investigations concerning rulemaking and agency rules.
16        (c)  The  Joint  Committee  shall monitor and investigate
17    agencies' compliance with the provisions of  this  Act,  make
18    periodic  investigations  of the rulemaking activities of all
19    agencies, and evaluate and report on all rules  in  terms  of
20    their   propriety,  legal  adequacy,  relation  to  statutory
21    authorization, economic and  budgetary  effects,  and  public
22    policy.
23        (d)  Hearings  and  investigations conducted by the Joint
24    Committee under this Act may be  held  at  times  and  places
25    within the State as the Committee deems necessary.
26        (e)  The  Joint  Committee may request from any agency an
27    analysis of the following:
28             (1)  The  effect  of  a  new  rule,  amendment,   or
29        repealer,  including  any  direct  economic effect on the
30        persons regulated by the rule; any anticipated effect  on
31        the  proposing  agency's  budget and the budgets of other
32        State agencies; and  any  anticipated  effects  on  State
33        revenues.
 
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 1             (2)  The  agency's  evaluation  of  the  submissions
 2        presented to the agency under Section 5-40.
 3             (3)  (Blank.)  A  description  of  any modifications
 4        from the initially published proposal made in the finally
 5        accepted version of  the  intended  rule,  amendment,  or
 6        repealer.
 7             (4)  The  agency's  justification  and rationale for
 8        the intended rule, amendment, or repealer.
 9        (f)  Failure of the Joint  Committee  to  object  to  any
10    proposed  rule,  amendment,  or repealer or any existing rule
11    shall  not  be  construed  as  implying  direct  or  indirect
12    approval of the rule or proposed rule, amendment, or repealer
13    by the Joint Committee or the General Assembly.
14    (Source: P.A. 87-823.)

15        (5 ILCS 100/5-110) (from Ch. 127, par. 1005-110)
16        Sec. 5-110. Responsibilities of the Joint Committee  with
17    respect to proposed rules, amendments, or repealers.
18        (a)  The Joint Committee shall examine any proposed rule,
19    amendment  to  a  rule,  and  repeal  of  a rule to determine
20    whether the proposed rule, amendment to a rule, or repeal  of
21    a  rule  is  within  the statutory authority upon which it is
22    based; whether the rule, amendment to a rule, or repeal of  a
23    rule  is  in  proper  form;  and whether the notice was given
24    before its adoption, amendment, or repeal and was  sufficient
25    to  give  adequate  notice  of  the purpose and effect of the
26    rule, amendment, or repeal. In addition, the Joint  Committee
27    may  consider  whether the agency has considered alternatives
28    to the rule that are consistent with the stated objectives of
29    both the applicable statutes and regulations and whether  the
30    rule  is  designed  to  minimize  economic  impact  on  small
31    businesses.
32        (b)  The  Joint  Committee  shall  vote  upon  each rule,
33    amendment to a rule, and repeal of  a  rule  proposed  by  an
 
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 1    agency  exercising  its  general  rulemaking  authority under
 2    Section  5-40.  If  the  Joint  Committee  approves  a  rule,
 3    amendment to a rule, or repeal of a rule by a majority  vote,
 4    the  Joint  Committee  shall  have prepared and introduced in
 5    either house of  the  General  Assembly  a  joint  resolution
 6    setting  forth  the  proposed  rule,  amendment to a rule, or
 7    repeal of a rule. No rule, amendment to a rule, or repeal  of
 8    a rule may be adopted by an agency or filed with or published
 9    by  the  Secretary  of  State  unless  it  is approved by the
10    General Assembly by passage of the joint resolution.  If  the
11    Joint  Committee  objects  to a proposed rule, amendment to a
12    rule, or repeal of a rule, it shall certify the fact  to  the
13    issuing agency and include with the certification a statement
14    of its specific objections.
15        (c)  (Blank.)  If  within  the  second  notice period the
16    Joint Committee  certifies  its  objections  to  the  issuing
17    agency, then that agency shall do one of the following within
18    90 days after receiving the statement of objection:
19             (1)  Modify   the   proposed   rule,  amendment,  or
20        repealer to meet the Joint Committee's objections.
21             (2)  Withdraw  the  proposed  rule,  amendment,   or
22        repealer in its entirety.
23             (3)  Refuse to modify or withdraw the proposed rule,
24        amendment, or repealer.
25        (d)  (Blank.)  If  an  agency elects to modify a proposed
26    rule, amendment, or repealer to meet  the  Joint  Committee's
27    objections,  it  shall  make  those  modifications  that  are
28    necessary to meet the objections and shall resubmit the rule,
29    amendment,  or  repealer to the Joint Committee. In addition,
30    the agency shall submit a notice of its  election  to  modify
31    the  proposed  rule, amendment, or repealer to meet the Joint
32    Committee's objections to the Secretary  of  State,  and  the
33    notice shall be published in the first available issue of the
34    Illinois  Register,  but  the agency shall not be required to
 
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 1    conduct a public hearing. If the Joint  Committee  determines
 2    that  the  modifications  do not remedy the Joint Committee's
 3    objections, it shall so notify  the  agency  in  writing  and
 4    shall  submit a copy of that notification to the Secretary of
 5    State for publication in the  next  available  issue  of  the
 6    Illinois  Register.  In  addition,  the  Joint  Committee may
 7    recommend legislative action as provided  in  subsection  (g)
 8    for agency refusals.
 9        (e)  If  an  agency  elects  to withdraw a proposed rule,
10    amendment, or repealer as a result of the  Joint  Committee's
11    objections, it shall notify the Joint Committee in writing of
12    its  election  and shall submit a notice of the withdrawal to
13    the Secretary of State.  The notice shall be published in the
14    next available issue of the Illinois Register.
15        (f)  Failure  of  an  agency  to  respond  to  the  Joint
16    Committee's objections to  a  proposed  rule,  amendment,  or
17    repealer  within  the time prescribed in subsection (c) shall
18    constitute withdrawal of the  proposed  rule,  amendment,  or
19    repealer in its entirety.  The Joint Committee shall submit a
20    notice  to  that  effect  to  the Secretary of State, and the
21    notice shall be published in the next available issue of  the
22    Illinois  Register.  The  Secretary  of State shall refuse to
23    accept for filing a certified  copy  of  the  proposed  rule,
24    amendment, or repealer under the provisions of Section 5-65.
25        (g)  If  an  agency  refuses  to  modify  or withdraw the
26    proposed rule, amendment, or repealer to remedy an  objection
27    stated  by  the  Joint  Committee,  it shall notify the Joint
28    Committee in writing of its refusal and shall submit a notice
29    of refusal to the Secretary of State.  The  notice  shall  be
30    published  in  the  next  available  issue  of  the  Illinois
31    Register.   If  the  Joint  Committee  decides  to  recommend
32    legislative action in response to an agency refusal, then the
33    Joint Committee shall have drafted and introduced into either
34    house of the  General  Assembly  appropriate  legislation  to
 
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 1    implement the recommendations of the Joint Committee.
 2        (h)  No  rule,  amendment,  or  repeal of a rule shall be
 3    accepted by the Secretary of State for filing  under  Section
 4    5-65,  if  the  rulemaking  is subject to this Section, until
 5    after the agency has responded to the objections of the Joint
 6    Committee as provided in this Section.
 7    (Source: P.A. 90-372, eff. 7-1-98.)

 8        (5 ILCS 100/5-115) (from Ch. 127, par. 1005-115)
 9        Sec. 5-115. Other action by the Joint Committee.
10        (a)  If the Joint Committee determines that the  adoption
11    and  effectiveness of a proposed rule, amendment, or repealer
12    or portion of a proposed rule, amendment, or repealer  by  an
13    agency  would be objectionable under any of the standards for
14    the Joint Committee's  review  specified  in  Section  5-100,
15    5-105,  5-110, 5-120, or 5-130 and would constitute a serious
16    threat to the public interest, safety, or welfare, the  Joint
17    Committee   must  disapprove  the  proposal  as  provided  in
18    subsection (b) of Section 5-110. may  issue  a  statement  to
19    that  effect at any time before the proposed rule, amendment,
20    or repealer takes effect.  The statement may be issued by the
21    Joint  Committee   only  upon   the   affirmative   vote   of
22    three-fifths of the members appointed to the Joint Committee.
23    A certified copy of the statement shall be transmitted to the
24    proposing   agency   and   to  the  Secretary  of  State  for
25    publication in the  next  available  issue  of  the  Illinois
26    Register.
27        (b)  The  proposed  rule,  amendment,  or repealer or the
28    portion of the proposed rule, amendment, or repealer to which
29    the Joint Committee has issued a statement  under  subsection
30    (a)  shall  not  be  accepted  for filing by the Secretary of
31    State nor take effect for at least 180 days after receipt  of
32    the  statement by the Secretary of State.  The agency may not
33    enforce or invoke for any reason a proposed rule,  amendment,
 
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 1    or  repealer  or  any portion thereof that is prohibited from
 2    being filed by this subsection during this 180 day period.
 3        (c)  The Joint Committee shall, as  soon  as  practicable
 4    after  the  issuance  of  a  statement  under subsection (a),
 5    introduce in either house of the  General  Assembly  a  joint
 6    resolution  stating  that  the  General  Assembly  desires to
 7    continue  the  prohibition   against   the   proposed   rule,
 8    amendment,  or  repealer  or the portion thereof to which the
 9    statement was issued being filed and taking effect. The joint
10    resolution shall, immediately following its first reading, be
11    placed on the calendar for consideration in each house of the
12    General Assembly without reference to a  standing  committee.
13    If  the  joint  resolution  is  passed  by both houses of the
14    General Assembly  within  the  180  day  period  provided  in
15    subsection  (b),  the  agency shall be prohibited from filing
16    the proposed rule, amendment,  or  repealer  or  the  portion
17    thereof  and the proposed rule, amendment, or repealer or the
18    portion thereof shall not  take  effect.   The  Secretary  of
19    State   shall  not  accept  for  filing  the  proposed  rule,
20    amendment, or  repealer  or  the  portion  thereof  that  the
21    General  Assembly  has  prohibited  the agency from filing as
22    provided in this subsection.  If the 180 day period  provided
23    in  subsection  (b)  expires  before  passage  of  the  joint
24    resolution, the agency may file the proposed rule, amendment,
25    or  repealer  or  the portion thereof as adopted and it shall
26    take effect.
27    (Source: P.A. 87-823; 88-667, eff. 9-16-94.)

28        (5 ILCS 100/5-120) (from Ch. 127, par. 1005-120)
29        Sec. 5-120.  Responsibilities of the Joint Committee with
30    respect to emergency, peremptory, and other existing rules.
31        (a)  The  Joint  Committee  may  examine  any   rule   to
32    determine  whether the rule is within the statutory authority
33    upon which it is based and whether  the  rule  is  in  proper
 
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 1    form.
 2        (b)  If  the Joint Committee objects to a rule, it shall,
 3    within 5 days of the  objection,  certify  the  fact  to  the
 4    adopting  agency  and  include  within  the  certification  a
 5    statement of its specific objections.
 6        (c)  Within  90  days  after receiving the certification,
 7    the agency shall do one of the following:
 8             (1)  Notify the Joint Committee that it has  elected
 9        to   amend   the  rule  to  meet  the  Joint  Committee's
10        objection.
11             (2)  Notify the Joint Committee that it has  elected
12        to repeal the rule.
13             (3)  Notify  the  Joint Committee that it refuses to
14        amend or repeal the rule.
15        (d)  If the agency elects to amend a  rule  to  meet  the
16    Joint  Committee's  objections,  it  shall  notify  the Joint
17    Committee in writing and shall initiate rulemaking procedures
18    for that purpose by giving  notice  as  required  by  Section
19    5-35.   The  Joint  Committee shall give priority to rules so
20    amended when setting its agenda.
21        (e)  If the agency elects to repeal a rule as a result of
22    the Joint Committee's objections, it shall notify  the  Joint
23    Committee  in  writing  of  its  election  and shall initiate
24    rulemaking procedures for that purpose by  giving  notice  as
25    required by Section 5-35.
26        (f)  If  the agency elects to amend or repeal a rule as a
27    result of the Joint Committee's objections, it shall complete
28    the process within  180  days  after  giving  notice  in  the
29    Illinois Register.
30        (g)  Failure  of  the  agency  to  respond  to  the Joint
31    Committee's objections to a rule within the  time  prescribed
32    in  subsection  (c)  shall  constitute  a refusal to amend or
33    repeal the rule.
34        (h)  If an agency refuses to amend or repeal  a  rule  to
 
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 1    remedy  an  objection stated by the Joint Committee, it shall
 2    notify the Joint Committee in  writing  of  its  refusal  and
 3    shall  submit  a notice of refusal to the Secretary of State.
 4    The notice shall be published in the next available issue  of
 5    the Illinois Register. If the Joint Committee, in response to
 6    an  agency  refusal, decides to recommend legislative action,
 7    then the Joint Committee shall have  drafted  and  introduced
 8    into   either  house  of  the  General  Assembly  appropriate
 9    legislation to implement the  recommendations  of  the  Joint
10    Committee.
11    (Source: P.A. 87-823; 88-667, eff. 9-16-94.)

12        (5 ILCS 100/5-125) (from Ch. 127, par. 1005-125)
13        Sec. 5-125.  Other Joint Committee action with respect to
14    emergency or peremptory rulemaking.
15        (a)  If  the  Joint  Committee  determines that a rule or
16    portion of a rule adopted  under  Section  5-45  or  5-50  is
17    objectionable  under  any  of  the  standards  for  the Joint
18    Committee's review specified in Section 5-100, 5-105,  5-110,
19    5-120,  or  5-130  and  constitutes  a  serious threat to the
20    public interest, safety,  or  welfare,  the  Joint  Committee
21    shall  by majority vote disapprove the rule or portion of the
22    rule. may issue a statement to that effect. The statement may
23    be issued by the Joint Committee only  upon  the  affirmative
24    vote  of  three-fifths  of the members appointed to the Joint
25    Committee.  A  certified  copy  of  the  statement  shall  be
26    transmitted  to  the  affected agency and to the Secretary of
27    State for publication in the  next  available  issue  of  the
28    Illinois  Register.  Within  30  days  of  transmittal of the
29    statement to the agency, the agency shall  notify  the  Joint
30    Committee  in  writing  whether  it  has elected to repeal or
31    amend the rule.  Failure of the agency to  notify  the  Joint
32    Committee and Secretary of State within 30 days constitutes a
33    decision by the agency to not repeal the rule.
 
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 1        (b)  The  effectiveness  of  the rule or the portion of a
 2    rule shall be suspended immediately for  at  least  180  days
 3    upon  receipt  of the certified statement by the Secretary of
 4    State.  The Secretary of State shall indicate the  suspension
 5    prominently  and  clearly on the face of the affected rule or
 6    the portion of a rule filed in the Office of the Secretary of
 7    State.  Rules or  portions  of  rules  suspended  under  this
 8    subsection  shall  become effective again upon the expiration
 9    of 180 days from receipt of the statement by the Secretary of
10    State  if  the  General  Assembly  does  not   continue   the
11    suspension under subsection (c).  The agency may not enforce,
12    or  invoke  for  any reason, a rule or portion of a rule that
13    has been suspended under this subsection.  During the 180 day
14    period, the agency may not file, nor  may  the  Secretary  of
15    State  accept  for  filing, any rule having substantially the
16    same purpose  and  effect  as  rules  or  portions  of  rules
17    suspended under this subsection.
18        (c)  The  Joint  Committee  shall, as soon as practicable
19    after its vote the issuance of a statement  under  subsection
20    (a),  cause  to  be introduced in either house of the General
21    Assembly a joint resolution stating that the General Assembly
22    desires  to  suspend   the   continue   the   suspension   of
23    effectiveness  of  the  a  rule or the portion of the rule to
24    which the statement was issued.  The joint  resolution  shall
25    immediately  following  its  first  reading  be placed on the
26    calendar for consideration  in  each  house  of  the  General
27    Assembly  without  reference  to a standing committee. If the
28    joint resolution is passed by  both  houses  of  the  General
29    Assembly  within  the  180  day period provided in subsection
30    (b), the rule or the portion of the rule shall be  considered
31    repealed  and the Secretary of State shall immediately remove
32    the rule  or  portion  of  a  rule  from  the  collection  of
33    effective rules.
34    (Source: P.A. 87-823; 88-667, eff. 9-16-94.)
 
                            -14-     LRB093 03658 JAM 03687 b
 1        Section  99.  Effective date.  This Act takes effect upon
 2    becoming law.