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SB3438 - 104th General Assembly

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104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
SB3438

Introduced 2/4/2026, by Sen. Bill Cunningham

SYNOPSIS AS INTRODUCED:

5 ILCS 100/5-40

from Ch. 127, par. 1005-40

Amends the Illinois Administrative Procedure Act. In provisions
regarding the second notice period for rulemaking, provides that the
second notice period shall be extended for a period not to exceed an
additional 45 days if the agency has received a statement of
unresponsiveness from the Joint Committee on Administrative Rules. Lists
the requirements for a statement of unresponsiveness. Provides that
failure to provide a substantive response within 7 days after a statement
of unresponsiveness is issued shall constitute a withdrawal of the
rulemaking. In provisions regarding the contents of the written notice to
the Joint Committee, requires a statement certifying that no procedure,
policy, schedule, or other feature of the agency will prevent the agency
from substantively engaging with the Joint Committee regarding suggestions
made during the second notice period. Effective immediately.
LRB104 20062 BDA 34037 b

A BILL FOR

SB3438
LRB104 20062 BDA 34037 b
1

AN ACT concerning government.

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 Section 5-40 as follows:

6

(5 ILCS 100/5-40)

(from Ch. 127, par. 1005-40)
7

Sec. 5-40.
General rulemaking.
8

(a) In all rulemaking to which Sections 5-45 and 5-50 do
9
not apply, each agency shall comply with this Section.
10

(b) Each agency shall give at least 45 days' notice of its
11
intended action to the general public. This first notice
12
period shall commence on the first day the notice appears in
13
the Illinois Register. The first notice shall include all the
14
following:
15

(1) The text of the proposed rule, the old and new
16

materials of a proposed amendment, or the text of the
17

provision to be repealed.
18

(2) The specific statutory citation upon which the
19

proposed rule, the proposed amendment to a rule, or the
20

proposed repeal of a rule is based and by which it is
21

authorized.
22

(3) A complete description of the subjects and issues
23

involved.

SB3438
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LRB104 20062 BDA 34037 b
1

(3.5) A descriptive title or other description of any
2

published study or research report used in developing the
3

rule, the identity of the person who performed such study,
4

and a description of where the public may obtain a copy of
5

any such study or research report. If the study was
6

performed by an agency or by a person or entity that
7

contracted with the agency for the performance of the
8

study, the agency shall also make copies of the underlying
9

data available to members of the public upon request if
10

the data are not protected from disclosure under the
11

Freedom of Information Act.
12

(4) For all proposed rules and proposed amendments to
13

rules, an initial regulatory flexibility analysis
14

containing a description of the types of small businesses
15

subject to the rule; a brief description of the proposed
16

reporting, bookkeeping, and other procedures required for
17

compliance with the rule; and a description of the types
18

of professional skills necessary for compliance.
19

(5) The time, place, and manner in which interested
20

persons may present their views and comments concerning
21

the proposed rulemaking.
22

During the first notice period, the agency shall accept
23
data, views, arguments, or comments from any interested
24
persons. The agency shall accept submissions in writing,
25
including submissions by email or by other publicly accessible
26
electronic means through its website. In the discretion of the

SB3438
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LRB104 20062 BDA 34037 b
1
agency, submissions may be submitted orally. The notice
2
published in the Illinois Register shall indicate the manner
3
selected by the agency for the submissions, including the
4
email address or website address where submissions will be
5
accepted. The agency shall consider all submissions received.
6

The agency shall hold a public hearing on the proposed
7
rulemaking during the first notice period if (i) during the
8
first notice period, the agency finds that a public hearing
9
would facilitate the submission of views and comments that
10
might not otherwise be submitted or (ii) the agency receives a
11
request for a public hearing, within the first 14 days after
12
publication of the notice of proposed rulemaking in the
13
Illinois Register, from 25 interested persons, an association
14
representing at least 100 interested persons, the Governor,
15
the Joint Committee on Administrative Rules, or a unit of
16
local government that may be affected. At the public hearing,
17
the agency shall allow interested persons to present views and
18
comments on the proposed rulemaking. A public hearing in
19
response to a request for a hearing may not be held less than
20
20 days after the publication of the notice of proposed
21
rulemaking in the Illinois Register unless notice of the
22
public hearing is included in the notice of proposed
23
rulemaking. A public hearing on proposed rulemaking may not be
24
held less than 5 days before submission of the notice required
25
under subsection (c) of this Section to the Joint Committee on
26
Administrative Rules. Each agency may prescribe reasonable

SB3438
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LRB104 20062 BDA 34037 b
1
rules for the conduct of public hearings on proposed
2
rulemaking to prevent undue repetition at the hearings. The
3
hearings must be open to the public and recorded by
4
stenographic or mechanical means. At least one agency
5
representative shall be present during the hearing who is
6
qualified to respond to general questions from the public
7
regarding the agency's proposal and the rulemaking process.
8

(c) Each agency shall provide additional notice of the
9
proposed rulemaking to the Joint Committee on Administrative
10
Rules. The period commencing on the day written notice is
11
received by the Joint Committee shall be known as the second
12
notice period and shall expire 45 days thereafter unless
(i)

13
before that time the agency and the Joint Committee have
14
agreed to extend the second notice period beyond 45 days for a
15
period not to exceed an additional 45 days
; (ii)

or unless
the
16
agency has received a statement of objection from the Joint
17
Committee or notification from the Joint Committee that no
18
objection will be issued
; or (iii) the agency has received a
19
statement of unresponsiveness from the Joint Committee, in
20
which case the second notice period shall be extended for a
21
period not to exceed an additional 45 days. A statement of
22
unresponsiveness may be issued when the agency fails to
23
provide a substantive response to a suggestion of the Joint
24
Committee made during the second notice period. A substantive
25
response addresses the propriety, legal adequacy, statutory
26
authority, economic effects, budgetary effects, or public

SB3438
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LRB104 20062 BDA 34037 b
1
policy of the rulemaking. Failure to provide a substantive
2
response within 7 days after the statement of unresponsiveness
3
is issued shall constitute a withdrawal of the rulemaking
. The
4
written notice to the Joint Committee shall include (i) the
5
text and location of any changes made to the proposed
6
rulemaking during the first notice period in a form prescribed
7
by the Joint Committee; (ii) for all proposed rules and
8
proposed amendments to rules, a final regulatory flexibility
9
analysis containing a summary of issues raised by small
10
businesses during the first notice period and a description of
11
actions taken on any alternatives to the proposed rule
12
suggested by small businesses during the first notice period,
13
including reasons for rejecting any alternatives not utilized;
14
and
(iii) if a written request has been made by the Joint
15
Committee within 30 days after initial notice appears in the
16
Illinois Register under subsection (b) of this Section, an
17
analysis of the economic and budgetary effects of the proposed
18
rulemaking
; and (iv) a statement certifying that no procedure,
19
policy, schedule, or other feature of the agency will prevent
20
the agency from substantively engaging with the Joint
21
Committee regarding suggestions made during the second notice
22
period
. After commencement of the second notice period, no
23
substantive change may be made to a proposed rulemaking unless
24
it is made in response to an objection or suggestion of the
25
Joint Committee. The agency shall also send a copy of the final
26
regulatory flexibility analysis to each small business that

SB3438
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LRB104 20062 BDA 34037 b
1
has presented views or comments on the proposed rulemaking
2
during the first notice period and to any other interested
3
person who requests a copy. The agency may charge a reasonable
4
fee for providing the copies to cover postage and handling
5
costs.
6

(d) After the expiration of the second notice period,
7
after notification from the Joint Committee that no objection
8
will be issued, or after a response by the agency to a
9
statement of objections issued by the Joint Committee,
10
whichever is applicable, the agency shall file, under Section
11
5-65, a certified copy of each rule, modification, or repeal
12
of any rule adopted by it. The copy shall be published in the
13
Illinois Register. Each rule hereafter adopted under this
14
Section is effective upon filing unless a later effective date
15
is required by statute or is specified in the rulemaking.
16

(e) No rule or modification or repeal of any rule may be
17
adopted, or filed with the Secretary of State, more than one
18
year after the date the first notice period for the rulemaking
19
under subsection (b) commenced. Any period during which the
20
rulemaking is prohibited from being filed under Section 5-115
21
shall not be considered in calculating this one-year time
22
period.
23
(Source: P.A. 103-390, eff. 7-28-23.)

24

Section 99.
Effective date.
This Act takes effect upon
25
becoming law.

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