AUTHORITY: Implementing and authorized by Sections 5-10, 5-145, 10-5, 10-10, 10-15, 10-20, 10-25, 10-30, 10-35, 10-40, 10-50, and 10-60 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1991, ch. 127, pars. 1005-10, 1005-145, 1010-5, 1010-10, 1010-15, 1010-20, 1010-25, 1010-30, 1010-35, 1010-40, 1010-50, and 1010-60) and the Freedom of Information Act (Ill. Rev. Stat. 1991, ch. 116, par. 201 et seq.).

SOURCE: Rules and Regulations Relating to The Administrative Procedure Act, filed December 30, 1977, effective January 15, 1978; 3 Ill. Reg. 48, p. 160, effective November 20, 1979; codified at 5 Ill. Reg. 10429; amended at 6 Ill. Reg. 14981, effective November 24, 1982; amended at 9 Ill. Reg. 1313, effective January 23, 1985; amended at 12 Ill. Reg. 11439, effective June 22, 1988; amended at 16 Ill. Reg. 15850, effective October 5, 1992.

SUBPART A: DEFINITIONS

 

Section 1.10  Definitions

 

a)         In addition to the definitions set forth in Sections 1-10 through 1-85 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1991, ch. 127, pars. 1001-10 through 1001-85), the following terms shall have the meanings specified:

 

            "Administrative action" includes every form and kind of act, including the refusal or failure to act, involved in the implementation of the laws administered by the Department of Agriculture.

 

            "Administrative file" means a file maintained by the Illinois Department of Agriculture in which documents pertaining to an administrative proceeding or action are retained.

 

            "Administrative proceeding" means any undertaking to issue, amend or revoke a regulation or order, or to take or refrain from taking any other form of administrative action. A public hearing conducted by or before a departmental advisory board or a statutorily established advisory board will be considered an administrative proceeding of the Department.

 

            "Department" or "Department of Agriculture" means the Department of Agriculture of the State of Illinois.

 

            "Department advisory board" or "department advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof that is not composed wholly of full-time officers or employees of the Illinois Department of Agriculture and is established or utilized by the Department of Agriculture to obtain advice or recommendations.

 

            "Director" means the Director of the Illinois Department of Agriculture.

 

            "Formal administrative proceeding" means an adjudicatory procedure conducted by the Department in accordance with the authority of a law administered by the Department, the Illinois Administrative Procedure Act, and Subpart B of this Part in which the individual legal rights, duties or privileges of a party are required by law to be determined by an agency and which places specific requirements (such as, time deadlines and content of administrative record) on the Department and/or on an individual.

 

            "Laws administered by the Department of Agriculture" means all the statutory provisions with respect to which authority has been delegated to the Illinois Department of Agriculture. Laws administered by the Department of Agriculture are listed in 2 Ill. Adm. Code 700.

 

            "Meeting" means any oral discussion between two or more persons.

 

            "Petition" means any petition or other document requesting the Director to establish, amend or revoke a regulation or order or to take or refrain from taking any other form of administrative action under the laws administered by the Department of Agriculture. Illustration A of this Part sets forth the form and information for a petition.  In order for any other document to be accepted as a petition, it must contain language stating it is a petition and information necessary for the Department to make a determination on the requested action. Requests, suggestions and recommendations made informally in routine correspondence received by the Illinois Department of Agriculture do not constitute a petition.

 

            "Statutory advisory board" or "statutory advisory committee" means any committee, board, commission, council, panel, conference, task force, or other similar group, or any subcommittee or other subgroup thereof, that is statutorily established and whose powers and duties or purposes are statutorily set.

 

b)         Words in the singular form shall be deemed to include the plural, words in the masculine form shall be deemed to include the feminine form, and vice versa, as the case may require.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

SUBPART B: FORMAL ADMINISTRATIVE PROCEEDINGS

 

Section 1.15  Nature of Formal Administrative Proceedings; Contested Cases; Licensing

 

8 Ill. Adm. Code 1:  Subpart B governs practices and procedures applicable to formal administrative proceedings conducted by the Department of Agriculture in hearing contested cases under the laws administered by the Department. "Where the Act creating or conferring power on an agency establishes administrative procedures not covered by this Act, such procedures shall remain in effect" ( Section 1-5 of the Illinois Administrative Procedure Act). Procedures governing contested cases or licensing shall be those established by the Illinois Administrative Procedure Act and in Subpart B of this Part; "If, however, an agency has existing procedures on July 1, 1977, specifically for contested cases or licensing, those existing provisions control" (quoted from Section 1-5 of the Illinois Administrative Procedure Act).

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.20  Initiation of Formal Administrative Proceedings

 

a)         A formal administrative proceeding to hear contested cases under the laws administered by the Department of Agriculture shall be initiated by the Department in accordance with Section 1.60 of this Part.

 

b)         The Director of the Department shall designate an administrative law judge.

 

c)         The respondent may file an affidavit setting forth specific allegations of personal bias, prejudice or disqualification of a presiding administrative law judge.  Such affidavit shall be filed, if at all, prior to the start of a contested case hearing.

 

d)         The Director, on his or her own motion or upon petition of the respondent, shall disqualify the administrative law judge when the Director finds the administrative law judge has direct involvement in the case.

 

e)         An administrative law judge may, at any time, voluntarily disqualify himself or herself.

 

f)         When an administrative law judge is disqualified, the Director shall appoint another administrative law judge.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.22  Qualifications and Authority of the Department's Administrative Law Judges

 

a)         Appointment and qualifications of the administrative law judges:  In accordance with Section 10-20 of the Illinois Administrative Procedure Act, the following persons are authorized to act as administrative law judges:

 

1)         the Director;

 

2)         the Director may appoint an attorney licensed to practice law in Illinois; or

 

3)         the Director may appoint a person as an administrative law judge who is not licensed to practice law in Illinois, provided such person meets the following minimum qualifications:

 

A)        The person has at least two years of experience in administrative law.

 

B)        The person has knowledge of evidentiary procedures and of the procedures for formal administrative proceedings.

 

C)        The person has knowledge of the laws, rules and regulations applicable to the Department.

 

D)        The person has the ability to prepare complex and technical legal documents.

 

E)        The person has the ability and skill to analyze and appraise facts, evidence, legal and administrative documents, records, and audits in order to obtain a clear mental picture of the issues involved.

 

b)         Authority of the Department's administrative law judge:  The administrative law judge shall have the authority to conduct a contested case hearing, to take all necessary action to avoid delay, to maintain order, and to ensure development of a clear and complete record.  The administrative law judge shall have all powers necessary to these ends, including but not limited to the power to:

 

1)         rule upon offers of proof and receive evidence and rule upon objections to the introduction of evidence;

 

2)         regulate the course of the hearings and conduct of the parties and their counsel therein;

 

3)         examine witnesses, take depositions, and issue subpoenas that require attendance, the giving of testimony and the production of books, papers and other documentary evidence necessary for resolution of the matter;

 

4)         make findings of fact and conclusions of law and issue an order of the Department; and

 

5)         direct parties to appear and confer for the settlement or simplification of the issues, or any other purpose pertinent to the formal administrative proceeding.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.25  Record of Formal Administrative Proceeding

 

The record of a formal administrative proceeding shall include the following:

 

a)         Any petition that has been filed with the Director and all submitted data and information on which it relies.

 

b)         All pleadings (including all notices and responses thereto), motions and ruling.

 

c)         A statement of matters officially noticed.

 

d)         The transcript of the hearing, if any, discovery documentation, if any, and evidence received, if any.

 

e)         The memorandum of the administrative law judge that states the action taken at conference(s), if held, and notes of ex parte communication, if any, in accordance with Section 10-60 of the Illinois Administrative Procedure Act.

 

f)         The Director's or administrative law judge's decision or order on such petition, proposal or administrative action.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.30  Time Limit That Record of Proceeding Remains Open (Repealed)

 

(Source:  Repealed at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.35  Rules of Practice in Formal Administrative Hearings, Contested Cases and Licensing Proceedings (Repealed)

 

(Source:  Repealed at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.40  Formal Administrative Proceeding: Communications

 

a)         All communications to the Department concerning formal administrative proceedings shall be addressed to the Director or administrative law judge, State Fairgrounds, P.O. Box 19281, Springfield, Illinois 62794-9281, unless otherwise instructed.

 

b)         A copy of the formal complaint shall either be served personally or shall be served by registered or certified mail on the respondent or his or her authorized agent.  Proof of service of the complaint shall be made by affidavit of the person making personal service, or by the registered or certified mail receipt.

 

c)         Any pleadings, motions, orders, and conference or discovery notices, after issuance of the complaint, shall be served personally or by First Class United States Mail, and copies thereof shall be filed with the administrative law judge.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.42  Conferences

 

a)         The respondent or the respondent's attorney may request verbally or in writing a conference with the Department and its administrative law judge at any time prior to or during the course of a hearing.  The administrative law judge shall direct the parties or their attorneys to appear at a specific time and place for a conference when it appears that one or more of the following may be accomplished:

 

1)         the simplification of issues;

 

2)         the necessity or desirability of amending the pleadings for the purposes of clarification, amplification or limitation;

 

3)         the possibility of making admissions of certain facts or stipulations concerning the use of either or both parties of matters of public record to avoid unnecessary introduction of proof;

 

4)         the limitation of the number of witnesses;

 

5)         the propriety of prior mutual exchange between or among the parties of prepared testimony and exhibits; and

 

6)         such other matters as may aid in the simplification of the evidence and disposition of the proceeding.

 

b)         Action taken at a conference shall be recorded in a memorandum prepared and certified by the administrative law judge.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.44  Discovery

 

a)         Upon written request of any party, the following discovery procedures shall be ordered by the administrative law judge when necessary to expedite the proceedings, to ensure a clear or concise record, to ensure a fair opportunity to prepare for the hearing, or to avoid surprise at the hearing:

 

1)         production or inspection of documents, books, and records pertinent to the case;

 

2)         depositions;

 

3)         interrogatories.

 

b)         The administrative law judge shall restrict such discovery when necessary to prevent undue delay or harassment.

 

c)         The administrative law judge shall order, upon written request of any affected party, a list of persons who may have knowledge of facts concerning the subjects of inquiry at the hearing.

 

d)         Any person, including a party who is deposed, interrogated or required to submit documents under this Section, may be examined regarding any matter, not privileged, which is relevant to the subject matter of the formal administrative proceeding, or which may lead to the discovery of such relevant information.

 

e)         All depositions and interrogatories may be used as the admission of the deposed or interrogated party.  Upon application to the administrative law judge, either before or after the taking of such deposition or interrogation and upon a showing that at the time of the hearing, the party deposed or interrogated will not be available to participate in the hearing because of death, age, sickness, infirmity, absence from the country or other exceptional circumstances, the administrative law judge shall order that the deposition or interrogatories be used as evidence in the hearing.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.45  Notice of Formal Administrative Proceeding

 

a)         The Director or the administrative law judge shall set the date, time, and place of all formal administrative proceedings.

 

b)         The formal administrative proceeding shall be held in the offices of the Department in Springfield, Illinois, or in such other place as the Director or administrative law judge shall for stated cause designate (e.g., respondent unable to travel because of age or infirmity).

 

c)         The Department shall give written notice to affected parties not later than 10 days prior to the date on which the formal administrative proceeding is scheduled, unless the specific statute or rules under which the alleged violation occurred state otherwise.

 

d)         Failure to comply with the provisions of this Subpart may not be used as a defense to an enforcement action, but any person adversely affected by such failure of compliance may have the hearing postponed upon motion to the administrative law judge.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.50  Formal Administrative Proceeding: Complainants, Petitioners, and Respondents

 

a)         When initiating a complaint, the Department shall be designated the complainant.  Any adverse party shall be designated as the respondent.

 

b)         Any person who has been affected by an adverse decision of the Department may file a petition with the Director.  Such person shall be designated the petitioner, and the Department shall be designated the respondent.

 

c)         Misnomer of a party is not grounds for dismissal, but the name of any party may be corrected at any time.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.55  Formal Administrative Proceeding: Appearances

 

a)         Any person may appear in a formal administrative proceeding as follows:

 

1)         A natural person may appear in his or her own behalf or be represented by an attorney at law who is licensed to practice law in the State of Illinois, or both.  Any attorney or counselor at law from any other jurisdiction in the United States or foreign country, who is admitted to practice in that jurisdiction, may participate in a formal administrative proceeding.

 

2)         A business, nonprofit or government organization may appear by any bonafide officer, employee or representative, or may be represented by an attorney licensed to practice law in the State of Illinois or both.  Any attorney or counselor at law from any other jurisdiction in the United States or foreign country, who is admitted to practice in that jurisdiction, may participate in a formal administrative proceeding.

 

b)         An attorney appearing in a representative capacity shall file a written notice of appearance with the Department, together with proof of service on all parties or their respective attorneys.

 

c)         Each party to a proceeding who appears before the Department, either in person or by counsel, shall inform the Department in writing or upon the record of the address at which any notice or other document may be served upon him or her in such proceeding.

 

d)         All persons appearing in a formal administrative proceeding before the Department shall conduct themselves in a respectful manner.  If any person uses abusive language or conducts himself or herself in an abusive manner, the administrative law judge shall warn the person to cease such abuse.  If the person continues such action, such person shall be removed from the proceedings.  Removal of such party from the proceedings shall not be grounds for dismissal of the case.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.60  Initiation of Complaints: Formal Complaints and Petitions

 

a)         Complaints may be initiated by the Department and shall be in the form of a formal complaint.

 

1)         A formal complaint shall:

 

A)        be in writing and be addressed to the person alleged to be in violation of the statute or rules.

 

B)        serve as notice and contain the following:

 

i)          a statement of the date, time, place and nature of the hearing;

 

ii)         a statement of the legal authority and jurisdiction under which the hearing is to be held and the official file number;

 

iii)        a reference to the particular section(s) of the statute(s) and rule(s) of which the respondent is alleged to be in violation;

 

iv)        a statement of when and where the alleged violation(s) occurred;

 

v)         a short and plain statement of facts that the alleged violation(s) occurred;

 

vi)        a statement indicating all possible consequences that the complainant seeks if the allegations in the complaint are proven; and

 

vii)       the names and addresses of the administrative law judge, all affected parties, and all other persons to whom the Department gives notice of the contested case hearing.

 

C)        The Formal Complaint shall be served in the manner as prescribed in the specific enabling Act or as set forth in Section 1.40 of this Part.

 

2)         A respondent may file with the Department a written answer to a formal complaint. The answer must be filed if at all, at least 48 hours prior to the date of hearing. The answer shall contain an explicit admission or denial of each allegation of the pleading to which they relate and a concise statement of the nature of the defense. If a solution or timetable for compliance is mutually agreed to, the Department shall immediately notify the respondent of the cancellation of the hearing.

 

3)         Relevant amendments to pleadings shall be allowed upon proper motion at any time during the pendency of the proceeding.

 

4)         All formal complaints, answers or other pleadings shall be liberally construed with a view toward doing substantial justice between the parties.

 

b)         Complaints may be initiated by persons affected by an adverse decision of the Department.  Informal complaints may be instituted in writing or verbally.  Such complaints will not be docketed, will not initiate a formal proceeding, and will not arrest the running of any limitation period.  Matters informally presented will be taken up by the Director or other duly authorized person by correspondence or conference with the person complained of in an endeavor to bring about a correction of the alleged violation.  The method the Director uses to respond to the complaint will depend on the nature of the complaint. A person who is affected by an adverse decision of the Department may initiate a complaint through the petition process in accordance with the provisions of Subpart C of this Part.  The form and content of the petition shall be in accordance with Illustration A of the rules of this Part.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.65  Motions

 

a)         Motions may be presented requesting a postponement of the hearing; a more sufficient pleading; a bill of particulars; the striking of irrelevant or immaterial matter; the dismissal of the proceedings for want of jurisdiction; the quashing of a subpoena; the postponement of an effective date of an order; the extension of time for compliance with an order; or such other relief or order as may be appropriate.

 

b)         Motions, unless made orally during a hearing, shall be made in writing at least 5 days prior to the date of the hearing or on such other date as the administrative law judge shall designate, shall set forth the relief or order sought, and shall be ruled upon on the day of such hearing, or prior to such hearing after notice to all parties and opportunity to be heard on such motion.

 

c)         Motions made orally during the hearing shall be ruled on immediately by the administrative law judge or taken under advisement and ruled upon at a later date.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.70  Documents Filed in a Formal Administrative Proceeding: Format

 

a)         Any papers filed in a proceeding shall be legible and lines should be double spaced, except that long quotations may be single spaced. Printed papers, if legible, will be accepted.

 

b)         All papers, except exhibits, shall be cut or folded so as not to exceed a width of 8 1/2 inches and a length of 14 inches. Whenever practical, all exhibits of a documentary character shall conform to said requirements.

 

c)         The original of a pleading, written motion, notice or application for further hearing shall be signed in ink by the party filing the paper or by an officer, agent or attorney thereof.

 

d)         Pleadings, written motions, notices, and applications for further hearings shall contain the address of the party filing the paper or, if the filing party is an attorney, the name and business address of such attorney.

 

(Source:  Amended at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.75  Procedures for Conducting Administrative Hearing: Rules of Evidence

 

a)         All hearings conducted in any proceeding shall be open to the public. Pursuant to authority of a Department licensing Act or the rules thereof, which are listed in 2 Ill. Adm. Code 700, the Department shall hold hearings immediately when there is imminent danger to the public health, safety or welfare.

 

b)         The Director or an administrative law judge shall conduct hearings in accordance with the authority set forth in Section 1.22 of this Part. Continuances and extensions of time shall be granted in accordance with the provisions of 8 Ill. Adm. Code 1.90.

 

c)         The Director or the administrative law judge shall direct all parties to enter their appearances on the record.

 

d)         The following shall be the order of all contested case hearings, subject to modification by the administrative law judge for good cause (e.g., bad weather):

 

1)         Presentation, argument and disposition of motions preliminary to a hearing on the merits of the matters raised in the complaint;

 

2)         Presentation of opening statements;

 

3)         Complainant's or petitioner's case in chief;

 

4)         Respondent's case in chief;

 

5)         Complainant's or petitioner's case in rebuttal;

 

6)         Respondent's closing argument;

 

7)         Complainant's or petitioner's closing argument;

 

8)         Presentation and argument of all motions prior to final order.

 

e)         Parties may by stipulation agree upon any facts involved in the proceeding. The facts stipulated shall be considered as evidence in the proceeding. Unless precluded by law, disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.  Failure of a party to appear on the date set for hearing or failure to proceed as ordered by the Department shall constitute a default.

 

f)         At any stage of the hearing or after all parties have completed the presentation of their evidence, the Department or its administrative law judge may call upon any party or the technical staff of the Department of Agriculture or other Departments of State Government or on the University of Illinois for further evidence or material when necessary for the disposition of the case.

 

g)         The rules of evidence and privilege as applied in civil cases in the Circuit Courts of this State shall be followed. However, evidence not admissible under such rules of evidence may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Immaterial, irrelevant or unduly repetitious material shall be excluded. All admissible evidence shall be considered in accordance with its relative probative value in formulating the final decision of the Director or administrative law judge and also in formulating the findings of fact and conclusions of law (if any) which support the decision. A copy of the whole or any part of an admissible book, record, paper or memorandum of the Department which is made by photostatic or other method of accurate and permanent reproduction may be admitted in evidence at the hearing without further proof of the accuracy of such copy. When any material or relevant matter offered in evidence by any party is embraced in a book, paper or document containing other matter not material or relevant, the party offering the same shall plainly designate the matter so offered. If, in the judgment of the Director or administrative law judge, such immaterial or irrelevant matter would unnecessarily encumber the record, such book, paper or document will not be received in evidence as a whole, but the material or relevant portions thereof, if otherwise admissible, may be read into the record or a true copy thereof supplied in the form of an exhibit.

 

h)         Rules of evidence, official notice of matters of which Circuit Courts of this State may take judicial notice, and official notice of generally recognized technical or scientific facts within the agency's specialized knowledge shall be in accordance with Section 10-40 of the Illinois Administrative Procedure Act.

 

i)          The Department shall record the proceedings, and no other tape or video camera recordings of the hearings by the respondent or the public shall be permitted.  The Department's record of the proceedings shall be the official transcript.   Any party may request a copy of the transcript from the official reporter, and such party shall be responsible for all costs associated with the transcription.

 

j)          The procedures set forth in Section 10-60 of the Illinois Administrative Procedure Act relative to ex parte contacts shall be followed.  Any communication made openly or on the record at a scheduled hearing, conference or discovery procedure, regardless of whether all the parties are present, shall be considered as authorized ex parte communication.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.77  Decision and Order

 

a)         The Director or administrative law judge shall prepare a written order for each contested case.  The order shall be supported by concise findings of fact and conclusions of law.  The order shall be signed by the Director or administrative law judge.

 

b)         The decision or order shall be presented and conform with the requirements of Section 10-50 of the Illinois Administrative Procedure Act.  A copy of such decision or order shall be provided to each party in accordance with Section 10-50 of the Illinois Administrative Procedure Act.

 

c)         Findings of fact and conclusions of law shall be separately stated.

 

d)         Findings of fact shall include specific references to principal supporting items of evidence in the record.

 

e)         The Department's final order may include any or all of the following as authorized by the law or rule under which the contested case was held:

 

1)         A direction to cease and desist from violations of the statute, Department's rules or orders;

 

2)         Suspension of a license(s) or permit(s);

 

3)         Revocation of a license or permit;

 

4)         Such other determinations that may be appropriate according to the law administered by the Department or the rules for that law (e.g., payment of monetary penalties).

 

f)         The administrative law judge's order shall be the final administrative decision of the Department, unless the respondent petitions the Director for a stay or reconsideration of the administrative law judge's decision within the time period specified in Section 1.114.

 

g)         The Director's decision on a petition for reconsideration or stay shall be the final decision of the Department.  When the Director functions as the administrative law judge in any contested case hearing, the Director's decision shall be the final decision of the Department.  The final decision of the Department is subject to Administrative Review (Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 3-101 et seq.)).

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.80  Subpoenas

 

a)         Subpoenas requiring that attendance and the giving of testimony by witnesses, and subpoenas duces tecum requiring the production of books, papers, records or memoranda may be issued by the Director or the administrative law judge upon his or her own motion or upon the written request of any party to the proceeding.  The Director or the administrative law judge may require the party requesting the issuance of subpoenas to demonstrate the relevancy of the request to the issues in the hearing.  For good cause shown, the Director or the administrative law judge may deny or modify the request for subpoenas.

 

b)         Subpoenas issued by the Director or the administrative law judge upon the request of a party to the proceeding shall be delivered to the requesting party who shall be responsible for serving the subpoenas.  Subpoenas shall be served personally or by certified mail.

 

c)         The witness fee for attendance and travel shall be the same as the fee of the witnesses before the Circuit Courts of this State.  The person who requests that a subpoena be issued shall be responsible for paying any witness fee for attendance and travel to the formal administrative proceeding.  When a witness is subpoenaed by the Director or administrative law judge upon his or her own motion or upon the request of the Department, the witness fee shall be paid in the same manner as other expenses of the agency.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.85  Witnesses

 

During the pendency of any proceeding, the Department, its administrative law judge, or any party may depose any witness in a manner which conforms to the provisions of the laws of this State.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.90  Continuances of Proceeding

 

Continuances and extensions of time for compliance with orders of the Department during the pendency of the proceeding shall be granted by the Director or the administrative law judge if they are not repetitious, do not unnecessarily delay the proceedings, and do not work a hardship on witnesses, unless there is imminent danger to the public health, safety or welfare.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.95   Petition for Reconsideration or Stay of Administrative Action

 

After a decision is rendered by the administrative law judge, a person affected by the decision may submit a petition for reconsideration or stay of administrative action as outlined in Sections 1.112 through 1.128 of this Part.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.100  Department Official Custodian of Documents

 

The Department shall be the official custodian of all papers and documents in proceedings before the Department.

 

(Source:  Amended at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.105  Computing Time Limits

 

The time within which any act under 8 Ill. Adm. Code 1.15 through 1.110 is to be done shall be computed by excluding the first day and including the last. Saturdays, Sundays and legal holidays for the State of Illinois shall be included in computing the time, except that when such time expires on a Saturday, Sunday or legal holiday for the State of Illinois, such period shall be extended to include the next following business day.

 

(Source:  Amended at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.110  Protection of Person's Rights

 

These rules in Subpart B shall not be construed to abrogate, modify or limit any rights, privileges or immunities granted or protected by the Constitution or laws of the United States or the Constitution or laws of the State of Illinois.

 

Section 1.112  Petition for Reconsideration or Stay of Administrative Action:  Initiated by Department

 

The Director may at any time on his or her own initiative or on the petition for reconsideration or stay of action of the respondent in any contested case reconsider any matter or may at any time stay (including extend) the effective date of any relevant action pending or following a decision on any matter.  A petition for reconsideration or stay of administrative action shall be granted in accordance with Sections 1.126 and 128.  The Director shall grant a stay or reconsider a decision on his or her own initiative when justified by additional information or by changes in circumstances that would warrant reconsideration or stay.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.114  Petition for Reconsideration or Stay of Administrative Action:  Initiated by Affected Party; Time Limit

 

The respondent in any contested case may request reconsideration of any part or all of the decision of the administrative law judge on any petition or may request the Director to stay the effective date of any administrative action for a specific period or for an indefinite period.  A petition for reconsideration or stay of action shall be submitted within 30 days after the date of the administrative law judge's decision on the case.  A petition for reconsideration or stay of action submitted later than 30 days after the date of the decision involved shall be denied as untimely.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.116  Petition for Reconsideration:  Format and Content

 

A petition for reconsideration shall be in the form and contain the information requested as shown in Illustration B of this Part.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.118  Petition for Stay of Administrative Action:  Format and Content

 

A petition for stay of administrative action shall be in the form and contain the information stated in Section 1.116 of this Part, except that the title of the document shall be "Petition for Stay of Administrative Action."

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.120  Petition for Reconsideration:  Based Upon Administrative Record

 

A petition for reconsideration shall be based upon the data, information and views contained in the administrative record upon which the administrative law judge made a decision.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.122  Petition for Reconsideration or Stay of Administrative Action:  Signing Petition, Legality, Date Considered Submitted, Computing Time Limits, and Receipt for Such Document

 

The provisions of Sections 1.205, 1.235, 1.240, 1.245, and 1.250 of Subpart C of these rules shall apply to petitions for reconsideration or stay of administrative action.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.124  Petition for Reconsideration or Stay of Administrative Action:  Director's Decision; Time Limit

 

The Director shall review a petition for reconsideration or stay of administrative action and within 90 days from the date of receipt of such petition notify the petitioner in writing of his or her decision.  The Director's decision on the matter which was reconsidered or stayed shall be the final administrative decision of the agency.  The Director's decision shall be based on the administrative record and made in accordance with Section 10-50 of the Illinois Administrative Procedure Act.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.126  Petition for Reconsideration:  Criteria for Granting Petition

 

The Director shall grant the petition for reconsideration if he or she determines that all of the following apply:

 

a)         The petition demonstrates that relevant data, information or views contained in the administrative record were not previously or not adequately considered by the administrative law judge.

 

b)         The petitioner's position is not frivolous and is being pursued in good faith.

 

c)         Granting the petition is not outweighed by a preponderance of the evidence.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.128  Petition for Stay or Delay of Administrative Action:  Criteria for Granting Petition

 

The Director shall grant a stay or delay any administrative action if:

 

a)         The Director determines that a stay or delay is in the public interest. A stay would be in the public interest if the decision would be detrimental to the industry, outweighted by public health and safety consideration or if requests from the industry on the whole were received.

 

b)         A court orders that the matter be stayed.

 

c)         The delay resulting from the stay is not outweighed by other considerations or other public interests.

 

(Source:  Added at 16 Ill. Reg. 15850, effective October 5, 1992)

SUBPART C: PETITIONS

 

Section 1.200  Petitions: Format

 

A petition shall be in the form and contain the information requested as shown in Illustration A.

 

Section 1.205  Petitions: Signature and Content

 

A petition shall be signed by the person making the submission or by an attorney or other authorized representative on the petitioner's behalf. All petitions constitute a representation that, to the best of the knowledge, information and belief of the person making the submission, all statements made in the petition are true and accurate.

 

Section 1.210  Petitions: Filing with Director

 

A petition shall be filed with the Director and, upon receipt, a docket number shall be assigned.

 

Section 1.215  Petitions: Information – Full Content

 

All data and information referred to or in any way relied upon in any such petition shall be included in full and may not be incorporated by reference, except:

 

a)         if previously submitted as part of the administrative file in the same proceeding,

 

b)         where the reference or source is:

 

1)         a reported Federal or State of Illinois court case,

 

2)         a Federal or State of Illinois law or regulation, or

 

3)         a document that is available in a public library.  The petitioner shall designate the library in which the document can be found.

 

c)         Where relevant data or information is contained in a document also containing irrelevant matter, the irrelevant matter shall be deleted and only the relevant data or information shall be submitted.

 

d)         Trade secrets or other information which would according to Federal or State of Illinois law be considered confidential or an invasion of personal privacy should be deleted from any record before it is submitted to the Director or the hearing examiner. A person wishing to voluntarily submit information considered confidential may do so.

 

(Source:  Amended at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.220  Petitions: Denial

 

If a petition fails to meet any requirements of this Subpart and such deficiency becomes known to the Director, the petition shall be returned with a copy of the applicable rules indicating those provisions not complied with in the submission. Return of the petition will constitute a denial of the petition.

 

(Source:  Amended at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.225  Petitions: Written Comments on Petition Filed with Director

 

All written comments, objections, notices, compilations of data and information and any other documents in regard to a petition shall be filed with the Director or with a duly authorized representative of the Department, whichever the case may be.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.230  Petitions: Amending, Supplementing or Withdrawing

 

A petitioner may supplement or amend a petition without agency approval and without prejudice at any time until the Director rules on the petition or the petition has been referred for a hearing. The petitioner shall make the request for withdrawal in writing to the Director. All requests for withdrawal of a petition will be granted, but the withdrawal will be subject to predjudice if the request is made after a ruling by the Director or referral for hearing.  Withdrawal subject to prejudice means that the petitioner cannot resubmit a petition on the same issue or factual basis.

 

(Source:  Amended at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.235  Petitions: Legality

 

The filing of a petition shall not mean or imply that it in fact meets all applicable requirements or that it contains reasonable grounds for the action requested or that the action requested is in accordance with law.

 

Section 1.240  Petitions: Considered Submitted

 

Submissions shall be considered as submitted on the date on which they are postmarked or, if delivered in person during regular business hours, on the date on which they are so delivered. All such submissions shall be mailed or delivered in person to the Director or to a duly authorized representative of the Department, Illinois Department of Agriculture, State Fairgrounds, P.O. Box 19281, Springfield, Illinois 62794-9281.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.245  Computing Time Limits

 

Saturdays, Sundays and legal holidays for the State of Illinois shall be included in computing the time for any act in Subpart C of this Part, except that when such time expires on a Saturday, Sunday or legal holiday for the State of Illinois, such period shall be extended to include the next following business day.

 

(Source:  Amended at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.250  Receipt for Documents

 

The Illinois Department of Agriculture will not acknowledge or give receipt for such documents, except on request.

 

(Source:  Amended at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.255  Petitions: Director's Review and Ruling

 

The Director shall review and rule upon every petition filed, taking into consideration:

 

a)         the agency's resources available to handle the subject matter,

 

b)         the priority assigned to the petition in relation both to subject matter involved and the overall work of the agency, and

 

c)         statutory requirements.

 

Section 1.260  Petitions: Proceedings in Reviewing

 

The Director may utilize any of the following proceedings in reviewing a petition in order to obtain data and information necessary to make a decision on the petition:

 

a)         Conferences, meetings and correspondence.

 

b)         A formal evidentiary public hearing before the Director or his authorized representative.

 

c)         A public hearing or meeting before a departmental advisory board or committee.

 

d)         A public hearing before a statutorily established advisory board or committee.

 

 

(Source:  Amended at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.265  Petitions: Agency's Responses; Time Limit

 

The Director's response shall be furnished to each petitioner in writing within 30 days of the receipt of the petition and shall state the reasons for the action taken. Such response shall either:

 

a)         approve the petition, in whole or in part,

 

b)         deny the petition,

 

c)         provide a tentative response indicating why the agency has been unable to reach a decision on the petition, or

 

d)         initiate administrative proceedings in regard to the petition.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.270  Public Hearing on Petition: Who May Testify

 

At any public hearing, the petitioner may invite affected persons to attend and testify in regard to the petition. The Department may also invite interested persons to testify or to submit written comments on the petition. Such comments shall be signed by the person making the submission or by an attorney or other authorized representative on the person's behalf.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.275  Public Hearing on Petition: Procedure for Conducting the Hearing

 

The Director or the administrative law judge shall state at the beginning of the hearing the manner in which the hearing will be conducted, time limits for testifying and any other procedures for conducting the hearing. Procedures and time limits vary according to the number of people wishing to testify, the time the hearing starts, weather conditions and other commitments of Department personnel.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.280  Public Hearing on Petition: Registration of Witnesses

 

Any person requesting time to make an oral presentation on any petition at any public hearing must register prior to the beginning of the hearing. Persons will be called to testify in the order of registration, unless the administrative law judge determines otherwise in accordance with procedures set forth in Section 1.275 of this Part.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.285  Person Representing Organization, Association or Another Person

 

A person may represent an association, organization or other group or an individual who is unable to attend. The Director or administrative law judge shall request such person to present proof indicating he is authorized to represent the association, organization or another individual when not familiar with the person.  Acceptable proof means a letter, affidavit or verbal verification from an officer of the organization or person being represented.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.290  Alternative Proposals

 

The Department may propose alternative proposals in order to obtain comments on different proposals.

 

Section 1.295  Decision Based Upon Record

 

The Director's decision on any petition shall be based upon the administrative record.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.300  Decision on Petition: Time Limit

 

The Director shall make a decision within 30 days following a public hearing or meeting on the petition or within 30 days from receipt of the petition, whichever is later. The agency shall notify the petitioner of the Director's decision in writing.  The Director's decision shall be the final decision of the Department.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.305  Petitioner's Rights to a Private Meeting

 

A petitioner has the right to a private meeting or conference with representatives of the Department in regard to a petition on request. The Director shall determine which representatives of the Department shall attend such meeting. The person requesting the meeting may request but not require the attendance of any Department employee. A petitioner may invite other affected persons to participate fully in the meeting or conference without giving prior notice to the Department. Such meeting shall be conducted informally; however, the Department shall record the minutes of the meeting or conference stenographically or by such other means as to adequately insure the preservation of the minutes for the Department's administrative file.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.310  Petition for Reconsideration or Stay of Administrative Action: Initiated by Department or Departmental Advisory Board (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.315  Petition for Reconsideration or Stay of Administrative Action: Initiated by Interested Person; Time Limit (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.320  Petition for Reconsideration: Format and Content (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.325  Petition for Stay of Administrative Action: Format and Content (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.330  Petition for Reconsideration: Based Upon Administrative Record (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.335  Petition for Reconsideration or Stay of Administrative Action: Signing Petition, Legality, Date Considered Submitted, Computing Time Limits, and Receipt for Such Document (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.340  Petition for Reconsideration or Stay of Administrative Action: Director's Decision; Time Limit (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.345  Petition for Reconsideration: Criteria for Granting Petition (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.350  Petition for Stay or Delay of Administrative Action: Criteria for Granting Petition (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

SUBPART D: DECLARATORY RULINGS

 

Section 1.400  Declaratory Rulings: Advisory Opinion (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.405  Request for An Advisory Opinion (Repealed)

 

(Source:  Repealed at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.410  Request for An Advisory Opinion; Format and Content, Date Considered Received, and Receipt (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.415  Agency's Response; Time Limit (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.420  Criteria for Denying Request for An Advisory Opinion (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.425  Formal Position of The Department (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.430  Amending or Revoking an Advisory Opinion (Repealed)

 

(Source:  Repealed at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.435  Use of Advisory Opinion in Administrative Proceedings (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.440  Action Taken In Conformity with An Advisory Opinion; Acceptability By Department (Repealed)

 

(Source:  Repealed at 6 Ill. Reg. 14981, effective November 24, 1982)

 

Section 1.445  Advice by Employee of Department; Informal Communication (Repealed)

 

(Source:  Repealed at 16 Ill. Reg. 15850, effective October 5, 1992)

SUBPART E: AVAILABILITY FOR PUBLIC DISCLOSURE OF DEPARTMENT OF AGRICULTURE FILES

 

Section 1.500  Availability of Information Contained in Department Records for Inspection and/or Copying; Procedure to be Followed

 

Information contained in public records maintained by the Department of Agriculture shall be available for inspection and/or copying by the public unless exempted from such inspection and/or copying in accordance with the provisions of the Freedom of Information Act ( Ill. Rev. Stat. 1991, ch. 116, par. 201 et seq.) and the rules adopted pursuant thereto (2 Ill. Adm. Code 701:  Subpart B).  When a person desires to inspect and/or obtain a copy of public records of the Department, the procedure to be followed shall be as set forth in the Freedom of Information Act and the rules adopted pursuant thereto.

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.505  Request for Access to Confidential File (Repealed)

 

(Source:  Repealed at 9 Ill. Reg. 1313, effective January 23, 1985)

 

Section 1.ILLUSTRATION A   Petition

 

 

(DATE)

 

Director

Department of Agriculture

State Fairgrounds

Springfield, Illinois  62706

 

PETITION

 

            The undersigned submits this petition pursuant to (relevant statutory reference, if known) to request the Director of Agriculture to (amend, issue, or revoke a regulation or take or refrain from taking any other form of administrative action).

 

A)        Action Requested.

 

1)         If the petition requests the Director to issue, amend or revoke a rule or regulation, the exact wording of the proposed regulation or amendment requested.

 

2)         If the petition requests the Director to take or refrain from taking any other form of administrative action, the specific action or relief requested.

 

B)        Statement of Grounds.

 

            (A full statement of the factual and legal grounds upon which the petitioner relies. Such grounds shall include all relevant data, information and views on which the petitioner relies and fiscal implications, if applicable.)

 

            The undersigned certifies that, to the best of such person's knowledge and belief this petition includes all data, information and views on which the petition relies, and that it includes representative data and information known to the petitioner which are unfavorable to the petition.

 

Very truly yours,

 

 

 

(Signature)

(Complete Mailing Address)

(Telephone number)

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)

 

Section 1.ILLUSTRATION B   Petition For Reconsideration

 

 

(DATE)

 

Director

Department of Agriculture

State Fairgrounds

Springfield, Illinois  62706

 

PETITION FOR RECONSIDERATION

DOCKET NO.

 

            The undersigned submits this petition for reconsideration of the decision of the administrative law judge.

 

A)        Decision Involved.  (A concise statement of the decision of the administrative law judge which the petitioner wishes to have reconsidered.)

 

B)        Action Requested.  (The decision which the petitioner requests the Director to make upon reconsideration of the matter.)

 

C)        Statement of Grounds. (A full statement of the factual and legal grounds upon which the petitioner relies.  Such grounds shall demonstrate that relevant data, information and views contained in the administrative record were not previously or not adequately considered by the administrative law judge.)

 

Very truly yours,

 

 

 

(Signature)

(Complete Mailing Address)

(Telephone Number)

 

(Source:  Amended at 16 Ill. Reg. 15850, effective October 5, 1992)