Information courtesy of Randolph R. Clarke, Assistant Attorney General, State of Illinois, Chicago-Kent '02
E-Docket: 1

The IAPA.. 3

Good Website for the IAPA: 4

Relevant sections of he IAPA: 4

100/5-40. General rulemaking.. 4

100/5-45. Emergency rulemaking.. 7

100/5-46.1. Emergency rulemaking. 9

100/5-105. Responsibilities of the Joint Committee. 9

100/5-110. Responsibilities of the Joint Committee with respect to proposed rules, amendments, or repealers. 10

E-Docket:

The E-Docket website URL is:  http://eweb.icc.state.il.us/e-docket/

No account or password is required to view information and documents related to commission cases.  I use the “Browse a docket” a feature to look up case information.

 

If you click the “Browse a docket” icon and enter an ICC Docket number (try 01-0590), information related to the case is displayed.  01-0590 is a good example. It was a rulemaking to create rules implementing a section of the Public Utilities Act.  After entering a docket number, click “Documents” on the far right side of the top of the page that appears to display a chronological list of documents filed in the case with the most recent document at the top.  The documents in 01-0590 start with an initiating order filed on 9/12/01 and continue with petitions to intervene, an order sending proposed rules to first notice, comments, reply comments, a proposed order, a second notice order and a final order. (six months passed between the second notice order and the final order because JCAR asked the Commission not to implement the rules until other rules in a related rulemaking were implemented.)

Another interesting proceeding is found in dockets 01-0485 and 02-0426.  These cases deal with making rules to implement ILEC customer service credits that telephone companies have to pay when they provide lousy service.  These proceedings have dragged on since the law containing the customer service credit provisions was passed.  I think 01-0485 is interesting because within one case, it touches on many procedural aspects of rulemaking under the IAPA.  It involves regular rulemaking (IAPA 5-40), emergency rulemaking (IAPA 5-45), an objection from JCAR that is rejected by the commission (IAPA 5-110 (a)-(d)) and a petition for rehearing by the commission. However, it might be too much of a mess to be useful as part of an admin. law class focusing on federal law. 02-0426 is a continuation of 01-0485 to consider several remaining issues.

If you wanted to have a class submit comments in an ICC rulemaking this semester, there are two current proceedings that might be appropriate.  One, ICC Docket No.  03-0106, deals with adoption of newly enacted federal natural gas rules into Illinois Gas rules.  The minimum first notice period ends on April 6.  So far three Gas Utilities, Central Illinois Public Service Company, Union Electric Company and Central Illinois Light Company have intervened.  They may file comments if the proposed rules will cost them money.  Another, ICC Docket No. 03-0203 was initiated yesterday.  The staff report for this case is not published yet, so I don’t know what the case is about.


The IAPA

I took a closer look at the IAPA and learned a bit more about it in the process.  There are two notice periods, each a minimum of 45 days.  Public comment is only accepted during the first notice period.  According to Section 5-40(b) of the IAPA, a first notice period of at least 45 days begins after a proposed rule is submitted to the Secretary of State for publication in the Illinois register.  During this time period the agency publishing the proposed rule will accept data, views, arguments, or comments from any interested persons, and under certain conditions will hold hearings on the proposed rule.

The second notice period begins when the agency proposing the rule gives notice to the Joint Committee on Administrative Rules (JCAR).  This period lasts 45 days.  JCAR can extend the second notice period for an additional 45 days.  JCAR can also issue a notice of no objection indicating that they have no objection to a proposed rule in the first notice period.  Substantive changes can be made during the second notice period only in response to objections or suggestions of JCAR.

The IAPA provides three routes for a proposed rule to become effective:

  1. expiration of the second notice period,
  2. notification of no objection from JCAR,
  3. agency response to objections or suggestions from JCAR. (including notification to JCAR that its suggestions are rejected)

After one of these conditions occurs, the rule becomes effective when it is filed for publication with the Secretary of State.

Most ICC rulemaking proceedings deal with modifying or repealing the Commissions rules (83 Ill. Admin. Code.) When the ICC proposes a rule, it usually does so by putting out an ICC staff report containing the proposed rule and reasons supporting it.  The Commission will vote to initiate a rulemaking proceeding and if the vote passes (which it generally does) it will issue an order initiating the proceeding.  This order may or may not move proposed rule language to first notice.   In practice, rules that contain contested issues get more attention than the minimum notice and comment periods provided in the IAPA.  This attention comes in the form of evidentiary presentation and briefing schedules set by ALJ’s assigned to the rulemaking proceedings. 


Good Website for the IAPA:

http://www.state.il.us/idns/htmls/legal/statutes/genadm/iapa.htm

Relevant sections of he IAPA:

Here are the general and the emergency rulemaking provisions and some of the functions of the Joint Committee on Administrative Rules as set out in the IAPA:

100/5-40. General rulemaking

§ 5-40. General rulemaking.

(a) In all rulemaking to which Sections 5-45 and 5-50 do not apply, each agency shall comply with this Section.

(b) Each agency shall give at least 45 days' notice of its intended action to the general public. This first notice period shall commence on the first day the notice appears in the Illinois Register. The first notice shall include all the following:

(1) The text of the proposed rule, the old and new materials of a proposed amendment, or the text of the provision to be repealed.

(2) The specific statutory citation upon which the proposed rule, the proposed amendment to a rule, or the proposed repeal of a rule is based and by which it is authorized.

(3) A complete description of the subjects and issues involved.

(3.5) A descriptive title or other description of any published study or research report used in developing the rule, the identity of the person who performed such study, and a description of where the public may obtain a copy of any such study or research report. If the study was performed by an agency or by a person or entity that contracted with the agency for the performance of the study, the agency shall also make copies of the underlying data available to members of the public upon request if the data are not protected from disclosure under the Freedom of Information Act.

(4) For all proposed rules and proposed amendments to rules, an initial regulatory flexibility analysis containing a description of the types of small businesses subject to the rule; a brief description of the proposed reporting, bookkeeping, and other procedures required for compliance with the rule; and a description of the types of professional skills necessary for compliance.

(5) The time, place, and manner in which interested persons may present their views and comments concerning the proposed rulemaking.

During the first notice period, the agency shall accept from any interested persons data, views, arguments, or comments. These may, in the discretion of the agency, be submitted either orally or in writing or both. The notice published in the Illinois Register shall indicate the manner selected by the agency for the submissions. The agency shall consider all submissions received.

The agency shall hold a public hearing on the proposed rulemaking during the first notice period if (i) during the first notice period, the agency finds that a public hearing would facilitate the submission of views and comments that might not otherwise be submitted or (ii) the agency receives a request for a public hearing, within the first 14 days after publication of the notice of proposed rulemaking in the Illinois Register, from 25 interested persons, an association representing at least 100 interested persons, the Governor, the Joint Committee on Administrative Rules, or a unit of local government that may be affected. At the public hearing, the agency shall allow interested persons to present views and comments on the proposed rulemaking. A public hearing in response to a request for a hearing may not be held less than 20 days after the publication of the notice of proposed rulemaking in the Illinois Register unless notice of the public hearing is included in the notice of proposed rulemaking. A public hearing on proposed rulemaking may not be held less than 5 days before submission of the notice required under subsection (c) of this Section to the Joint Committee on Administrative Rules. Each agency may prescribe reasonable rules for the conduct of public hearings on proposed rulemaking to prevent undue repetition at the hearings. The hearings must be open to the public and recorded by stenographic or mechanical means. At least one agency representative shall be present during the hearing who is qualified to respond to general questions from the public regarding the agency's proposal and the rulemaking process.

(c) Each agency shall provide additional notice of the proposed rulemaking to the Joint Committee on Administrative Rules. The period commencing on the day written notice is received by the Joint Committee shall be known as the second notice period and shall expire 45 days thereafter unless before that time the agency and the Joint Committee have agreed to extend the second notice period beyond 45 days for a period not to exceed an additional 45 days or unless the agency has received a statement of objection from the Joint Committee or notification from the Joint Committee that no objection will be issued. The written notice to the Joint Committee shall include (i) the text and location of any changes made to the proposed rulemaking during the first notice period in a form prescribed by the Joint Committee; (ii) for all proposed rules and proposed amendments to rules, a final regulatory flexibility analysis containing a summary of issues raised by small businesses during the first notice period and a description of actions taken on any alternatives to the proposed rule suggested by small businesses during the first notice period, including reasons for rejecting any alternatives not utilized; and (iii) if a written request has been made by the Joint Committee within 30 days after initial notice appears in the Illinois Register under subsection (b) of this Section, an analysis of the economic and budgetary effects of the proposed rulemaking. After commencement of the second notice period, no substantive change may be made to a proposed rulemaking unless it is made in response to an objection or suggestion of the Joint Committee. The agency shall also send a copy of the final regulatory flexibility analysis to each small business that has presented views or comments on the proposed rulemaking during the first notice period and to any other interested person who requests a copy. The agency may charge a reasonable fee for providing the copies to cover postage and handling costs.

(d) After the expiration of the second notice period, after notification from the Joint Committee that no objection will be issued, or after a response by the agency to a statement of objections issued by the Joint Committee, whichever is applicable, the agency shall file, under Section 5-65, a certified copy of each rule, modification, or repeal of any rule adopted by it. The copy shall be published in the Illinois Register. Each rule hereafter adopted under this Section is effective upon filing unless a later effective date is required by statute or is specified in the rulemaking.

(e) No rule or modification or repeal of any rule may be adopted, or filed with the Secretary of State, more than one year after the date the first notice period for the rulemaking under subsection (b) commenced. Any period during which the rulemaking is prohibited from being filed under Section 5-115 shall not be considered in calculating this one-year time period.

100/5-45. Emergency rulemaking

§ 5-45. Emergency rulemaking.

(a) "Emergency" means the existence of any situation that any agency finds reasonably constitutes a threat to the public interest, safety, or welfare.

(b) If any agency finds that an emergency exists that requires adoption of a rule upon fewer days than is required by Section 5-40 and states in writing its reasons for that finding, the agency may adopt an emergency rule without prior notice or hearing upon filing a notice of emergency rulemaking with the Secretary of State under Section 5-70. The notice shall include the text of the emergency rule and shall be published in the Illinois Register. Consent orders or other court orders adopting settlements negotiated by an agency may be adopted under this Section. Subject to applicable constitutional or statutory provisions, an emergency rule becomes effective immediately upon filing under Section 5-65 or at a stated date less than 10 days thereafter. The agency's finding and a statement of the specific reasons for the finding shall be filed with the rule. The agency shall take reasonable and appropriate measures to make emergency rules known to the persons who may be affected by them.

(c) An emergency rule may be effective for a period of not longer than 150 days, but the agency's authority to adopt an identical rule under Section 5-40 is not precluded. No emergency rule may be adopted more than once in any 24 month period, except that this limitation on the number of emergency rules that may be adopted in a 24 month period does not apply to emergency rules that make additions to and deletions from the Drug Manual under Section 5-5.16 of the Illinois Public Aid Code or the generic drug formulary under Section 3.14 of the Illinois Food, Drug and Cosmetic Act. Two or more emergency rules having substantially the same purpose and effect shall be deemed to a single rule for purposes of this Section.

(d) In order to provide for the expeditious and timely implementation of the State's fiscal year 1999 budget, emergency rules to implement any provision of Public Act 9-587 or 90-588 or any other budget initiative for fiscal year 1999 may be adopted in accordance with this Section by the agency charged with administering that provision or initiative, except that the 24-month limitation on the adoption of emergency rules and provisions of Sections 5-115 and 5-125 do not apply to rules adopted under this subsection (d). The adoption of emergency rules authorized by this subsection (d) shall be deemed to be necessary for the public interest, safety, and welfare.

(e) In order to provide for the expeditious and timely implementation of the State's fiscal year 2000 budget, emergency rules to implement any provision of this amendatory Act of the 91st General Assembly, or any other budget initiative for fiscal year 2000 may be adopted in accordance with this Section by the agency charged with administering that provision or initiative, except that the 24-month limitation on the adoption of emergency rules and provisions of Sections 5-115 and 5-125 do not apply to rules adopted under this subsection (e). The adoption of emergency rules authorized by this subsection (e) shall be deemed to be necessary for the public interest, safety, and welfare.

(f) In order to provide for the expeditious and timely implementation of the State's fiscal year 2001 budget, emergency rules to implement any provision of this amendatory Act of the 91st General Assembly, or any other budget initiative for fiscal year 2001 may be adopted in accordance with this Section by the agency charged with administering that provision or initiative, except that the 24-month limitation on the adoption of emergency rules and provisions of Sections 5-115 and 5-125 do not apply to rules adopted under this subsection (f). The adoption of emergency rules authorized by this subsection (f) shall be deemed to be necessary for the public interest, safety, and welfare.

(g) In order to provide for the expeditious and timely implementation of the State's fiscal year 2002 budget, emergency rules to implement any provision of this amendatory Act of the 92nd General Assembly, or any other budget initiative for fiscal year 2002 may be adopted in accordance with this Section by the agency charged with administering that provision or initiative, except that the 24-month limitation on the adoption of emergency rules and provisions of Sections 5-115 and 5-125 do not apply to rules adopted under this subsection (g). The adoption of emergency rules authorized by this subsection (g) shall be deemed to be necessary for the public interest, safety, and welfare.

100/5-46. Emergency rulemaking, Repealed by P.A. 88-667, effective
September 16, 1994.

100/5-46.1. Emergency rulemaking.

(a) The general Assembly finds that the State's current financial situation constitutes an emergency for the purposes of this Act.

(b) Beginning July 1, 1995, agencies may implement the changes made by this amendatory Act of 1995 or other budget reduction initiatives for Fiscal Year 1996 through the use of emergency rules in accordance with provisions of Section 5-45 of this Act, except that the 24-month limitation on the adoption of similar emergency rules under Section 5-45 and the provisions of Section 5-115 and 5-125 do not apply to rules adopted to implement changes made by this amendatory Act of 1995 or other budget reduction initiatives for Fiscal Year 1996.

(c) Agencies may implement the changes made by this amendatory Act of 1996 or other budget reduction initiatives for Fiscal Year 1997 through the use of emergency rules in accordance with the provisions of Section 5-45 of this Act, except that the 24-month limitation on the adoption of similar emergency rules under Section 5-45 and the provisions of Sections 5-115 and 5-125 do not apply to rules adopted to implement changes made by this Amendatory Act of 1996 or other budget reduction initiatives for Fiscal Year 1997.

100/5-105. Responsibilities of the Joint Committee

§ 5-105. Responsibilities of the Joint Committee. The Joint Committee shall have the following responsibilities under this Act:

(a) The Joint Committee shall conduct a systematic and continuing study of the rules and rulemaking process of all State agencies, including those agencies not covered in Section 1-25, for the purpose of improving the rulemaking process, reducing the number and bulk of rules, removing redundancies and unnecessary repetitions, and correcting grammatical, typographical, and similar errors not affecting the construction or meaning of the rules. The Joint Committee shall make recommendations to the appropriate affected agency.

(b) The Joint Committee shall review the statutory authority on which any administrative rule is based.

(c) The Joint Committee shall maintain a review program to study the impact of legislative changes, court rulings, and administrative action on agency rules and rulemaking.

(d) The Joint Committee shall suggest rulemaking by an agency whenever the Joint Committee, in the course of its review of the agency's rules under this Act, determines that the agency's rules are incomplete, inconsistent, or otherwise deficient.

100/5-110. Responsibilities of the Joint Committee with respect to proposed rules, amendments, or repealers

§ 5-110. Responsibilities of the Joint Committee with respect to proposed rules, amendments, or repealers.

(a) The Joint Committee shall examine any proposed rule, amendment to a rule, and repeal of a rule to determine whether the proposed rule, amendment to a rule, or repeal of a rule is within the statutory authority upon which it is based; whether the rule, amendment to a rule, or repeal of a rule is in proper form; and whether the notice was given before its adoption, amendment, or repeal and was sufficient to give adequate notice of the purpose and effect of the rule, amendment, or repeal. In addition, the Joint Committee may consider whether the agency has considered alternatives to the rule that are consistent with the stated objectives of both the applicable statutes and regulations and whether the rule is designed to minimize economic impact on small businesses.

(b) If the Joint Committee objects to a proposed rule, amendment to a rule, or repeal of a rule, it shall certify the fact to the issuing agency and include with the certification a statement of its specific objections.

(c) If within the second notice period the Joint Committee certifies its objections to the issuing agency, then that agency shall do one of the following within 90 days after receiving the statement of objection:

(1) Modify the proposed rule, amendment, or repealer to meet the Joint Committee's objections.

(2) Withdraw the proposed rule, amendment, or repealer in its entirety.

(3) Refuse to modify or withdraw the proposed rule, amendment, or repealer.

(d) If an agency elects to modify a proposed rule, amendment, or repealer to meet the Joint Committee's objections, it shall make those modifications that are necessary to meet the objections and shall resubmit the rule, amendment, or repealer to the Joint Committee. In addition, the agency shall submit a notice of its election to modify the proposed rule, amendment, or repealer to meet the Joint Committee's objections to the Secretary of State, and the notice shall be published in the first available issue of the Illinois Register, but the agency shall not be required to conduct a public hearing. If the Joint Committee determines that the modifications do not remedy the Joint Committee's objections, it shall so notify the agency in writing and shall submit a copy of that notification to the Secretary of State for publication in the next available issue of the Illinois Register. In addition, the Joint Committee may recommend legislative action as provided in subsection (g) for agency refusals.

(e) If an agency elects to withdraw a proposed rule, amendment, or repealer as a result of the Joint Committee's objections, it shall notify the Joint Committee in writing of its election and shall submit a notice of the withdrawal to the Secretary of State. The notice shall be published in the next available issue of the Illinois Register.

(f) Failure of an agency to respond to the Joint Committee's objections to a proposed rule, amendment, or repealer within the time prescribed in subsection (c) shall constitute withdrawal of the proposed rule, amendment, or repealer in its entirety. The Joint Committee shall submit a notice to that effect to the Secretary of State, and the notice shall be published in the next available issue of the Illinois Register. The Secretary of State shall refuse to accept for filing a certified copy of the proposed rule, amendment, or repealer under the provisions of Section 5-65.

(g) If an agency refuses to modify or withdraw the proposed rule, amendment, or repealer to remedy an objection stated by the Joint Committee, it shall notify the Joint Committee in writing of its refusal and shall submit a notice of refusal to the Secretary of State. The notice shall be published in the next available issue of the Illinois Register. If the Joint Committee decides to recommend legislative action in response to an agency refusal, then the Joint Committee shall have drafted and introduced into either house of the General Assembly appropriate legislation to implement the recommendations of the Joint Committee.

(h) No rule, amendment, or repeal of a rule shall be accepted by the Secretary of State for filing under Section 5-65, if the rulemaking is subject to this Section, until after the agency has responded to the objections of the Joint Committee as provided in this Section.

(i) The Joint Committee shall evaluate and analyze all State forms that have been developed or revised after September 7, 1984, to ascertain the burden, if any, of complying with those forms by small businesses. The evaluation and analysis shall occur during the Joint Committee's review conducted under Section 5-130. If the Joint Committee determines that the form is unduly burdensome to small businesses, the Joint Committee may object to the form or make specific recommendations for change in the form. Objections to forms shall be made in the manner prescribed in Section 5-120. For the purposes of this subsection, the terms "State form" and "form" mean any document or piece of paper used by a State agency requesting or transmitting information, printed or reproduced by whatever means, usually with blank spaces for the entry of additional information, to be used in any transaction between the State of Illinois and private sector businesses. These include but are not limited to grant applications, licensing applications, permit applications, and request for proposal applications, but do not include books, pamphlets, newsletters, and intra-agency forms that do not affect the rights of or procedures available to persons or entities outside the State agency.