Administrative Procedure Act• Unlike drafting and passing legislation, there is aspecific legal process state agencies are requiredto follow for making or modifying administrativerules.• The Illinois Administrative Procedure Act (5 ILCS100/5-40) lays this out.• The General Assembly’s Joint Committee onAdministrative Rules (JCAR) plays a big role inapproving, modifying or rejecting an agency’sproposed rules.
Ex parte Communications• Governed by Illinois APA (5 ILCS 100/5-165)• "Ex parte communication" means any written ororal communication by any person during therulemaking period that imparts or requestsmaterial information or makes a materialargument regarding… an agencys… rulemaking…that is communicated to that agency, the head ofthat agency, or any other employee of thatagency.”• Does NOT include “statements by a personpublicly made in a public forum”
Ex parte Communications• An ex parte communication shall immediately be reported to that agencysethics officer.• The ethics officer shall:– the ex parte communication promptly be made a part of the record of therulemaking proceeding– file the ex parte communication with the Executive Ethics Commission,• all written communications• all written responses to the communications• a memorandum prepared by the ethics officer stating– the nature and substance of all oral communications– the identity and job title of the person to whom each communication was made– all responses made– the identity and job title of the person making each response– the identity of each person from whom the written or oral ex parte communication wasreceived– the individual or entity represented by that person– any action the person requested or recommended– the date of any ex parte communication– any other pertinent information
Ex parte Communications• “Failure to take certain actions under thisSection may constitute a violation as providedin Section 5-50 of the State Officials andEmployees Ethics Act.”
Public Hearing• “At the public hearing, the agency shall allowinterested persons to present views andcomments on the proposed rulemaking.”• “The hearings must be open to the public andrecorded by stenographic or mechanical means.”• “At least one agency representative shall bepresent during the hearing who is qualified torespond to general questions from the publicregarding the agencys proposal and therulemaking process.”
General Assembly Action• Administrative Rules required to be updatedbecause of the extensive changes to theEnterprise Zone Act by PA 97-905• DCEO did not draft the legislation• But, DCEO is required to follow the language ofthe Enterprise Zone Act as amended by PA 97-905• Cannot reverse any explicit policy decisions madeby the General Assembly – as written in thelegislation
Public Act 97-905• Ten new statutory criteria to qualify as anenterprise zone – old criteria deleted from Act(instead of having a sunset)• Creation of Enterprise Zone Board to approveor deny enterprise zone applications• DCEO scores applications on criteria, butBoard makes ultimate decision
Public Act 97-905• Fees capped and a fee schedule must be filedwith DCEO by “April 1 of each year” for DCEOto “review and approve”• No new zones created• An “automatic” extension of enterprise zonesscheduled to expire before July 1, 2016• 15 year term for new enterprise zones with areview “after 13 years for an additional 10-year designation”
Proposed Rulemaking• Italicized type is taken directly from the Act• Sections of the Administrative Rules not listedwould not be changed; only sections whereadditions or deletions are included in therulemaking notice
JCAR Process• Emergency Rules went into effect on March 28,2013 and will expire on August 25, 2013• Copy of published rules in the packet provided byIEZA; also available on Secretary of State website• First Notice period for proposed rules began onApril 12, 2013 and will expire on May 27, 2013• DCEO can make changes to the proposed rules asa result of comments received
Additional Comments• Submit any other comments in writing to:Jolene ClarkeRules AdministratorDept. of Commerce &Economic Opportunity500 E. MonroeSpringfield, IL 62701• The comments are reported as an ex partecommunication, but there is a written recordthat greatly simplifies the reporting process.
Public Comments• Constructive comments are encouraged• Specificity about issues and language helps• DCEO cannot give you specific legal adviceabout your enterprise zone
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