Section 240.1  Basic Policy (Renumbered)

 

(Source:  Section 240.1 renumbered to Section 240.100 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.2  Definitions (Renumbered)

 

(Source:  Section 240.2 renumbered to Section 240.200 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.3  Submission; Staff Review (Renumbered)

 

(Source:  Section 240.3 renumbered to Section 240.300 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.4  Staff Report (Renumbered)

 

(Source:  Section 240.4 renumbered to Section 240.400 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.5  Primary Criteria for Review (Renumbered)

 

(Source:  Section 240.5 renumbered to Section 240.500 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.6  Secondary Criteria for Review (Renumbered)

 

(Source:  Section 240.6 renumbered to Section 240.600 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.7  Objection (Renumbered)

 

(Source:  Section 240.7 renumbered to Section 240.700 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.8  Certification of Objection; Statement of Specific Objections (Renumbered)

 

(Source:  Section 240.8 renumbered to Section 240.800 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.9  Response to Objection:  Format (Renumbered)

 

(Source:  Section 240.9 renumbered to Section 240.900 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.10  Response to Objection:  Manner (Renumbered)

 

(Source:  Section 240.10 renumbered to Section 240.1000 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.11  Rulemaking in Response to Objection (Renumbered)

 

(Source:  Section 240.11 renumbered to Section 240.1100 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.12  Failure to Respond (Renumbered)

 

(Source:  Section 240.12 renumbered to Section 240.1200 at 5 Ill. Reg. 5164, effective May 15, 1981)

 

Section 240.100  Basic Policy

 

a)         The fact that situations occur in which agencies are required by a federal law, federal rules and regulations, collective bargaining agreements, or a court orders to take a prompt action to adopt rules is recognized by the Joint Committee on Administrative Rules (Joint Committee) and the Illinois Administrative Procedure Act (Act) (Ill. Rev. Stat. 1991, ch. 127, par. 1001-1 et seq.) [5 ILCS 100]. In some of these instances, peremptory rules must be adopted under the process provided for this purpose by Section 5-50 of the Act. However, the Joint Committee believes that public notice and comment is an essential part of the rulemaking process, which should only be by-passed for very serious reasons.  The peremptory process may be used only in situations in which the agency has no discretion as to the content of the rule and when the agency is precluded from complying with the general rulemaking requirements of the Act.

 

b)         The Joint Committee is empowered by Section 5-120 of the Act to examine any rule.  The Joint Committee will review each rule adopted through the use of peremptory rulemaking under this power.  The purpose of this review is to ensure that use of the process is limited to only those situations that meet the requirements of Section 5-50 of the Act.  The criteria used in this review are stated in Sections 240.500 and 240.650 of this Part.

 

c)           The use of the peremptory rulemaking process to implement consent decrees and other court orders adopting settlements negotiated by an agency is prohibited pursuant to Section 5-50 of the Act.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.200  Definitions

 

a)         The terms and definitions found in 1 Ill. Adm. Code 210.100 are incorporated into this Part.

 

b)         Conditions that preclude compliance with the general rulemaking requirements imposed by Section 5-40 of the Act include only those conditions that make it impossible to comply with the notice or hearing requirements of the Act.  A federal law, federal rule or regulation, or court order that merely makes it more difficult to comply or prescribes the content of such rulemaking does not make it impossible to comply.

 

c)         Federal rules and regulations means those rules published in the Code of Federal Regulations or those rules published as adopted rules in the Federal Register.

 

d)         Peremptory rule means a rule adopted pursuant to the rulemaking process provided in Section 5-50 of the Act.

 

e)         Peremptory rulemaking means the process of adopting a rule as provided in Section 5-50 of the Act.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.250  State Mandates Act Requirements

 

The provisions of 1 Ill. Adm. Code 220.275 are applicable to peremptory rules adopted pursuant to this Part.

 

(Source:  Added at 10 Ill. Reg. 21742, effective May 1, 1987)

 

Section 240.300  Submission; Staff Review

 

The agency shall submit a copy of the court order or collective bargaining agreement, or the specific citation to the federal law or federal rules or regulations that require the peremptory rulemaking to the Joint Committee within 30 days after the rule is required or necessary, or on or before the rulemaking is filed with the Administrative Code Division, whichever comes first.   The Joint Committee staff will review the peremptory rule or rulemaking, including the notice and the text, pursuant to the criteria specified in Sections 240.500 and 240.650 of this Part.  The staff may raise questions or problems as a result of its review of the rule or rulemaking and will discuss these questions or problems with the agency.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.400  Staff Report

 

The staff will report the results of its review to the Joint Committee at the next monthly Joint Committee meeting, provided there are at least 20 days between the publication of the peremptory rule and the meeting.  If there are fewer than 20 days, the rulemaking may be scheduled for the following meeting. Staff may develop proposals for consideration by the Joint Committee.  Staff proposals are advisory only and do not limit the Joint Committee's power to take some other action.  The staff will attempt to inform the agency of the substance of the proposals prior to the Joint Committee's consideration of the peremptory rule or rulemaking at a public hearing.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.450  Joint Committee Hearing

 

a)         The Joint Committee will hold full and open hearings on peremptory rules and rulemakings.  The agenda for such hearings will be submitted for publication in the Illinois Register prior to the hearing.  Items not included in the published agenda may also be considered by the Joint Committee.  Joint Committee staff and agency representatives will be allowed to testify at such hearings. Written comments from members of the public will be considered in lieu of oral testimony.  Written comments should be submitted to the attention of the Executive Director of the Joint Committee at the following address:

 

Joint Committee on Administrative Rules

700 Stratton Building

Springfield, Illinois  62706

 

b)           Comments should be received at least 10 working days prior to the hearing in order to insure their consideration.  If requested by the agency, the Joint Committee will provide a copy of such comments to the agency, unless the person or group requests that a copy of the comments not be provided, or unless the comments were provided as part of the complaint review process (1 Ill. Adm. Code 260) and disclosure was not authorized by the complainant.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.500  Criteria for Review

 

a)         The Joint Committee will consider these criteria in its review of peremptory rules and rulemakings:  

 

1)         Peremptory Rulemaking

 

A)        Were conditions present that precluded the agency from complying with the general rulemaking requirements of Section 5-40 of the Act?

 

B)        Was the agency required to adopt the rules as a direct result of federal law, federal rules and regulations, court orders, or a collective bargaining agreement?

 

C)        Is the peremptory rule limited to what is required by the federal law, federal rules or regulations, court order or collective bargaining agreement?

 

D)        Was the agency precluded from the exercise of discretion concerning the content of the peremptory rule?

 

E)        Has the agency given an adequate reason for not complying with the notice and hearing requirements of Section 5-40 of the Act?

 

F)         Did the agency file the notice of peremptory rulemaking with the Administrative Code Division within 30 days after the change in the rules was required or necessary?  Does the notice refer to the federal law, federal rules or regulations, court order, or collective bargaining agreement that required the peremptory rules?

 

G)        Did the agency submit to the Joint Committee, when or before the notice of peremptory rulemaking was filed with the Administrative Code Division, a copy of the court order or collective bargaining agreement or the specific citation to the federal law or federal rules or regulations that required the peremptory rulemaking?

 

2)         Substantive

 

A)        Does the agency have legal authority for each portion of the peremptory rule?

 

B)        Does each portion of the peremptory rule comply with the statutory authority and legislative intent on which it is based, or which it is implementing or interpreting?

 

C)        Does each portion of the peremptory rule and rulemaking comply with State and federal constitutions, State and federal law, federal rules and regulations, and case law?

 

D)        Does each portion of the peremptory rule include standards for the exercise of discretionary authority?  Are the standards defined as clearly as practicable under the conditions?

 

E)        Does the agency have rulemaking authority?

 

3)         Propriety

 

A)        Is there an adequate justification and rationale for the peremptory rules and rulemaking and for any regulation of the public embodied in the rules?

 

B)        Has the agency considered the economic effects of the rules upon those regulated, including small businesses, not for profit corporations and units of local government, school districts, and community college districts?

 

C)        Has the agency considered less costly alternatives to the peremptory rules?

 

D)        Has the agency considered the budgetary effects of the peremptory rules upon itself, other State agencies, and State revenue in general?

 

E)        Is the language of the peremptory rules simple and clear, so that the rules can be understood by the persons and groups they will affect?

 

F)         Are the peremptory rules free of serious technical errors, redundancies and grammatical or typographical errors that could affect the meaning of the rules?

 

4)         Procedural

 

A)        Does the peremptory rulemaking comply with the requirements of the Administrative Code Division (1 Ill. Adm. Code 100)?

 

B)        Does the peremptory rule and rulemaking comply with any additional requirements imposed on the agency by State or federal law?

 

C)        Does the peremptory rule and rulemaking comply with the agency's own rules for the promulgation of rules?

 

b)         If the Joint Committee determines that one or more of the criteria enumerated in subsection (a) of this Section are not met, the Committee shall issue an objection or recommendation pursuant to Section 240.700(a) or (b) of this Part.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.600  Secondary Criteria for Review (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)

 

Section 240.650  Suspension Criteria

 

a)         If the Joint Committee finds that the peremptory rule does not meet one or more of the criteria in Section 240.500, the Committee will then consider the peremptory rule in relation to the following criteria pursuant to Section 5-125 of the Act:  

 

1)         Does the peremptory rule represent a serious threat to the public interest?

 

A)        Does the peremptory rule contain policies that have been previously considered and rejected by the General Assembly?

 

B)        Does the peremptory rule unconstitutionally or unlawfully discriminate against any citizen of the State?

 

C)        Does the peremptory rule unconstitutionally or unlawfully inhibit the free exercise of the rights of any citizen of the State?

 

2)         Does the peremptory rule represent a serious threat to the public safety?

 

A)        Could the peremptory rule result in a decrease in the protection provided against threats to the safety of any citizen of the State?

 

B)        Could the peremptory rule result in an increase in the threat of physical harm to any citizen of the State?

 

3)         Does the peremptory rule represent a serious threat to the public welfare?

 

A)        Does the peremptory rule impose unreasonable or unnecessary economic costs on any citizen of the State?

 

B)        Does the peremptory rule adversely affect the health or well-being of any citizen of the State?

 

C)        Does the peremptory rule adversely affect the quality of life of any citizen of the State?

 

b)         If the Joint Committee determines that one or more of the criteria enumerated in this Section are met, the Committee shall suspend the peremptory rule or portion thereof pursuant to Section 240.700(c) of this Part.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.700  Objection; Recommendation; Suspension

 

a)         Objection

 

1)         If the Joint Committee finds that the peremptory rule or rulemaking does not meet one or more of the criteria in Section 240.500 of this Part, the Joint Committee shall object to the rulemaking pursuant to Section 5-120 of the Act.

 

2)         If the Joint Committee objects to the peremptory rule or rulemaking, it shall certify that fact to the agency.  Such certification will be sent to the agency in the form shown in Exhibit A of Part 230 of the Joint Committee's rules (1 Ill. Adm. Code 230.Exhibit A) within 5 working days after the Joint Committee hearing.  The certification shall include a statement of the specific objections of the Joint Committee to the peremptory rule or rulemaking.

 

3)         Each statement of specific objections shall also be submitted to the Administrative Code Division for publication in the next available issue of the Illinois Register.

 

b)         Recommendation

 

1)         If the Joint Committee finds that the peremptory rule or rulemaking is incomplete or inconsistent, or does not meet one or more of the criteria in Section 240.500 of this Part, the Joint Committee shall recommend further action.  Recommended actions include the promulgation of general rules, the promulgation of additional rules, the clarification of statutory authority to be introduced by the agency or the Joint Committee or a recommendation to curtail an unauthorized practice.

 

2)         If the Joint Committee issues a recommendation to the peremptory rule or rulemaking, it shall so notify the agency.  Within 5 working days after the Joint Committee hearing.  The notification shall include a statement of the specific recommendation of the Joint Committee to the peremptory rule or rulemaking.

 

3)         Each statement of specific recommendations shall also be submitted to the Administrative Code Division for publication in the next available issue of the Illinois Register.

 

c)         Suspension

 

1)         If the Joint Committee finds that the peremptory rule or rulemaking or a portion thereof is objectionable under one or more of the criteria in Section 240.500 of this Part, and that the rule meets any of the criteria in Section 240.650 of this Part, the Joint Committee shall suspend the rule or portion thereof pursuant to Section 5-125 of the Act.  Such action can only be taken upon the affirmative vote of three-fifths of the members appointed to the Joint Committee.

 

2)         If the Joint Committee suspends the peremptory rule or portion thereof, it shall certify that fact to the agency and the Administrative Code Division.  Such certification will be sent to the agency and the Administrative Code Division in the form shown in Exhibit C of Part 230 of the Joint Committee's rules (1 Ill. Adm. Code 230.Exhibit C) within 5 working days after the Joint Committee hearing.  The certification shall include a statement of the reasons for the Joint Committee's suspension of the peremptory rule or portion thereof.

 

3)         Each statement of suspension shall also be submitted to the Administrative Code Division for publication in the next available issue of the Illinois Register.

 

4)         The effectiveness of the peremptory rule or portion thereof shall be suspended immediately for at least 180 days upon receipt of the certified statement by the Administrative Code Division.  The suspension shall be indicated prominently and clearly on the face of the peremptory rule or portion thereof by the Administrative Code Division.  A peremptory rule or portion thereof that is suspended cannot be enforced, or invoked for any reason, by the Agency. (Ill. Rev. Stat. 1991, ch. 127, par. 1005-125(b)) [5 ILCS 100/5-125(b)]

 

5)         The Joint Committee shall introduce a Joint Resolution in either house of the General Assembly to continue the suspension.  Passage of the Joint Resolution by the General Assembly within 180 days after the certification is received by the Administrative Code Division will have the effect of repealing the peremptory rule or portion thereof.  The rule or portion thereof shall be immediately removed from the compilation of effective rules by the Administrative Code Division.  (Ill. Rev. Stat. 1991, ch. 127, par. 1005-125(c)) [5 ILCS 100/5-125(c)]

 

6)         Upon the affirmative vote of the majority of the members of the Joint Committee voting, a suspension of a peremptory rule may be withdrawn.  Withdrawal of a suspension must be done prior to the passage of the Joint Resolution in either house of the General Assembly.  The Joint Committee shall issue a Certification of Withdrawal of Suspension of Peremptory Rules to the agency in the manner shown in Exhibit F of Part 230 (1 Ill. Adm. Code 230.Exhibit F) and shall certify that action to the Administrative Code Division within 5 working days after the Joint Committee hearing.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.800  Failure to Object or Issue Recommendation

 

The failure of the Joint Committee to issue an objection or recommendation to a peremptory rule or rulemaking shall not be construed to imply approval of the rule or rulemaking by the Joint Committee or the General Assembly.  (Ill. Rev. Stat. 1991, ch. 127, par. 1005-100) [5 ILCS 100/5-100]

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.900  Agency Response to Objection

 

a)         The agency shall respond to an objection issued by the Joint Committee within 90 days after receipt of the statement of specific objections pursuant to Section 5-120 of the Act.   The response should be made, in the manner shown in Exhibit D of Part 230 of the Joint Committee's rules (1 Ill. Adm. Code 230.Exhibit D) and shall be signed by the agency head.

 

b)         The agency must respond to each objection of the Joint Committee by one of the methods enumerated as follows:  

 

1)         Amend the peremptory rule to meet the Joint Committee's objection.

 

2)         Repeal the peremptory rule.

 

3)         Refuse to amend or repeal the peremptory rule.  A notice of refusal must also be submitted to the Administrative Code Division for publication in the Illinois Register if the agency responds in this manner.

 

c)         If the agency elects to amend or repeal the peremptory rule in response to an objection, it shall initiate rulemaking pursuant to Section 5-40, 5-45 or 5-50 of the Act.  The agency shall complete the rulemaking process within 180 days after the rulemaking is proposed in the Illinois Register.

 

d)         An amendment to meet the Joint Committee's objection must be limited to the issues raised in the Certification and Statement of Objection.  A suggestion or comment made by a member of the Joint Committee does not authorize a substantive change unless the suggestion or comment is ratified by the Joint Committee through the issuance of a Certification and Statement of Objection to the peremptory rule or rulemaking.

 

e)         The failure of an agency to respond to an objection of the Joint Committee within 90 days after receipt of the objection shall be deemed to be a refusal to amend or repeal the rule pursuant to Section 5-120(g) of the Act.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.1000  Agency Response to Recommendation

 

a)         The agency should respond to a recommendation issued by the Joint Committee within 90 days after receipt of the statement of specific recommendations.  The agency response should address each of the specific recommendations stated by the Joint Committee and should clearly state the nature of (agreement to amend, agreement to repeal, refusal to amend or repeal) and rationale for the response.  The response should be made in the manner shown in Exhibit E of Part 230 of the Joint Committee's rules (1 Ill. Adm. Code 230.Exhibit E).

 

b)         The agency should respond to each Joint Committee recommendation for action in one of the following ways:  

 

1)         Agree to pursue the action recommended by the Joint Committee.

 

2)         Refuse to pursue the action recommended by the Joint Committee.

 

c)         Responses should be submitted to the Joint Committee, in writing, and shall be signed by the agency head.

 

d)         The failure of an agency to respond to a recommendation of the Joint Committee within 90 days after receipt of the recommendation shall be deemed to be a refusal.

 

e)         The failure of an agency to complete rulemaking proposed in response to a recommendation within 180 days after the rulemaking commenced shall be deemed to be a refusal to amend or repeal the rule.

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.1100  Analysis of Agency Response

 

a)         If the Joint Committee finds that the agency's response to an objection or recommendation is not adequate, the Committee will notify the agency and submit a copy of such notification to the Administrative Code Division for publication in the Illinois Register.  The notice will include a specific statement of the reasons the Joint Committee has determined that the response to the objection or recommendation is not adequate. Failure of the agency to respond to a Joint Committee objection or recommendation shall be deemed to be a refusal.

 

b)           If the agency fails to remedy an objection or adequately respond to a recommendation, the Joint Committee may draft legislation to address the problems. Such legislation must be approved by a majority vote and may be introduced in either house of the General Assembly. (Ill. Rev. Stat. 1991, ch. 127, par. 1005-120) [5 ILCS 100/5-120]

 

(Source:  Amended at 18 Ill. Reg. 4745, effective March 14, 1994)

 

Section 240.1200  Failure to Respond (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)

 

Section 240.1300  Certification of Suspension; Statement of Specific Objections (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)

Section 240.ILLUSTRATION A   Agency Analysis of Economic and Budgetary Effects of Proposed Rulemaking  (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)

Section 240.ILLUSTRATION B   Certification of Objection to Proposed Rulemaking (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)

Section 240.ILLUSTRATION C   Agency Response to Joint Committee Objection to Proposed Rulemaking (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)

Section 240.ILLUSTRATION D   Certification of Filing Prohibition of Proposed Rulemaking (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)

Section 240.ILLUSTRATION E   Certification of Objection to Emergency or Peremptory Rules (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)

Section 240.ILLUSTRATION F   Certification of Suspension of Emergency or Peremptory Rules (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)

Section 240.ILLUSTRATION G   Agency Response to Joint Committee Objection to Emergency or Peremptory Rules (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 21742, effective May 1, 1987)