ADMINISTRATIVE CODE ADOPTION PROCESS
What is Administrative Code?
The New Jersey Administrative Code (NJAC) is the official publication of the Office of Administrative Law (OAL) which contains all effective regulations adopted by state agencies. The OAL has oversight of the Administrative Procedures Act (APA) which regulates code activity for all departments.
Each agency's body of regulations is codified in a title of code. The Department of Education's Code is Title 6 and contains all regulations promulgated by the State Board of Education. Based on the Comprehensive Review of Code initiative, the State Board will incrementally adopt new chapters of code in a new Title 6A and rescind corresponding regulations in Title 6. The ultimate goal is to eliminate Title 6.
Each code title is annotated to provide the reader with a complete context in which to analyze the regulations. The annotations at the beginning of each chapter include:
- legislative authority for rulemaking;
- source and effective date of the regulations;
- historical notes which discuss prior regulatory activity;
- expiration dates; and
- case notes (listing of relevant NJ Court and OAL cases and Formal Attorney General Opinions).
An administrative regulation or "code" as defined in the APA (NJSA 52:14B) means "each agency's statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." The APA is implemented for all departments of state through Title I, Chapter 30.
Rulemaking can be initiated by:
- implementation of a statute, including new legislation;
- a change in agency or governmental policy;
- an executive order issued by the governor;
- a court decision;
- a rulemaking petition from an interested party;
- an emergent danger or peril; and
- a federal requirement.
State Board Administrative Code Adoption Process
The administrative code adoption process can be described in 12 steps. Each step, after the discussion phase, takes about one month and corresponds to the State Board's public meeting schedule.
The first step to develop the code takes from one to two months depending on the complexity of the code. Steps two - seven and step 10, which are discussion of the draft code language and two testimony sessions are part of the process based on a State Board policy. Those steps are not required by the Administrative Procedures Act (APA) which governs the code process for all state agencies. The APA requires the actions that begin at step eight which are: publication of the proposed code language, a written comment period, formal adoption of the code language and publication in the NJ Register.
Administrative Code Adoption Process
April 9, 2013
STATE BOARD POLICY
Step 1 Policy discussion paper is developed by responsible division.
Step 2 Discussion paper is distributed to State Board and then the stakeholders.
Step 3 Feedback to Commissioner about the discussion paper from the State Board at two agenda planning sessions and written comment from the stakeholders (about 60 days).
Step 4 Responsible division develops draft code language.
Step 5 First discussion of draft code language at State Board monthly meeting.
Step 6 Second discussion of draft code language at State Board monthly meeting.
Step 7 Public testimony session held following second discussion of draft code language.
REQUIREMENTS OF ADMINISTRATIVE PROCEDURES ACT
Step 8 Proposal level at State Board monthly meeting for approval by State Board to publish code in the New Jersey Register.
Step 9 New Jersey Register publication with 60 day written comment period.
Step 10 Public Testimony Session held approximately six weeks following proposal level.
Step 11 Adoption level at State Board monthly meeting.
Step 12 Publication in the New Jersey Register to establish the effective date of the adopted regulation.
What Happens At Each Step?
A State Board initiative of 1993 provided for a comprehensive review of code to:
(1) refocus code and identify regulations which are overly prescriptive or counter-productive;
(2) establish a moratorium on rulemaking pending completion of review; and (3) establish an equivalency and waiver process to identify areas of code which can be accomplished in other ways.
Each of those objectives was implemented and the Comprehensive Review of Code Report recommended several changes to the code development process based on three overarching goals. These goals are to: (1) bring the State Board into the policy development process earlier to allow for discussions at the conceptual level and the opportunity for consensus building which would not otherwise exist; (2) receive input from the education groups, stakeholders and other interested members of the public before the development of specific code language; and (3) accomplish the above objectives without lengthening the code adoption process.
The major change to the code development process is the addition of a policy discussion level through distribution of a discussion paper to the State Board and stakeholders. The discussion paper will begin at the broad policy level and be linked to the goals of the Strategic Plan for Systemic Improvement of Education in New Jersey which is the State Board's five year plan to improve education statewide. The paper will establish the need for regulations in the policy area and then pose questions related to the broad policy issues that should be considered in developing code. The use of a question format will encourage a focused response from the stakeholders on the broad issues being presented.
The discussion paper will not be adopted by the State Board but presented to the State Board and to stakeholders for input before the code language is developed for the area that must be regulated. The stakeholders will be asked for written comments but no formal department comment or response will be necessary. The role of the State Board should be to react to the discussion paper and give the Commissioner and department staff feedback. The department will also share the feedback from the public and the stakeholders with the State Board on an informational basis.
The Commissioner should accept the feedback, ask staff to analyze it for his/her benefit and then direct staff to develop code based on his/her reaction to the feedback. As code language is being developed, the Commissioner has the opportunity to work with the State Board through the agenda planning process on areas that may be problematic or controversial.
The following describes the activities of the discussion phase:
- the State Board receives the discussion paper two weeks before public dissemination;
- the discussion paper is then provided to County Superintendents, the Leadership for Educational Excellence (LEE) and specific groups directly impacted by the code. The discussion paper will be available on the department's web site and the public may submit written comments. The release will also not coincide with a public meeting of the State Board;
- the State Board and all groups are given a two-month period to review the discussion paper and provide input directly to the department;
- County Superintendents distribute the discussion paper and coordinate a discussion of the paper with feedback as part of the monthly roundtables with superintendents and business administrators; consideration could be given to meeting with LEE or stakeholders as appropriate;
- The two-month period would allow sufficient time for all interested parties to receive the discussion paper and provide input through written comment. It also would allow all State Board members to discuss the proposed code at the policy level in one of two work sessions with the Commissioner and division executives. The written comment is compiled and provided to the State Board at the end of the discussion period.
The Commissioner assigns administrative code development to the division responsible for the policy area. Code language is developed to:
- amend current regulations;
- create new regulations; or
- review regulations scheduled to expire through the "sunset" provision.
- Executive Order No. 66 (1978) stipulates that all regulations adopted after May 15, 1978 will have an expiration date ("sunset") no later than five years from the effective date. The regulations must be reviewed for either readoption without change, readoption with amendments or repeal of all or part of the chapter prior to the expiration date.
The driving force for rulemaking is either an order contained in a new statute which directs the Commissioner of Education and State Board of Education to promulgate regulations to implement the provisions of the legislation or a departmental policy decision which mandates certain requirements for school districts or the regulated parties. Regulations are also adopted to help clarify policy decisions or statutory requirements.
The draft code development process can take anywhere from a few weeks to several months to produce the proposed code language for the State Board's consideration. The amount of time depends on the complexity of the issue and whether or not discussion or input from other government agencies or external groups is needed.
The code language is also developed according to a prescribed format and codification process established by the Administrative Procedures Act and implemented by the Office of Administrative Law. Prior to the regulations being presented to the State Board at proposal level for official action to advertise and receive public comment, the draft document is sent to the OAL for a preliminary review.
The regulations are reviewed for: statutory authority, codification, regulation text, compliance with the APA and OAL regulations for agency rulemaking and format, grammar and spelling.
The draft code language will include a summary memo to introduce the code language at first and second discussion level. The summary memo will include the purpose of the code and its historical background. It will also address major policy areas and the Commissioner's position as well as a narrative description about what is accomplished in each chapter and how it will be implemented. The purpose is to give the State Board and the public a clear picture of the proposed code. This summary memo is a requirement of the Administrative Procedures Act and includes the APA requirements described in Step 9.
The State Board Office provides technical assistance to divisions for the State Board and OAL procedures and requirements.
The first discussion of draft code language is the first public opportunity for the State Board members to review and comment on the text of the regulations. A summary memo from the Commissioner outlines various aspects of the regulations regarding purpose and authority and is used as an introduction to the code. The division executive of the responsible division is present at the State Board public meeting to provide an overview of the regulations and answer questions and receive the comments of the State Board members. There is no formal action taken by the State Board at this level.
A Comment/Response Form is used to respond to questions and comments from State Board members and the public after the first and second discussion and public testimony sessions. The form is prepared by department staff and identifies the person or agency that presented a comment or question, the code citation, the issue being raised and the department's response or recommendation. All questions and comments are listed on the Comment/Response Form with a corresponding response from the department. The State Board uses the form to consider possible changes to the proposed text.
The Comment/Response Form is provided to the public when the State Board considers the code at second discussion, proposal level and at adoption level.
The State Board discusses the code for a second time, usually one month later, at the public meeting. This is a second opportunity for the State Board to raise questions or direct staff to make specific changes to the text before it is published in the New Jersey Register. Again, the responsible division executive is available to answer questions and respond to comments. No formal action is taken on the regulations at this time.
The State Board has the option to discuss the code beyond this level. In such cases, additional discussion levels are scheduled which may be referred to as the final discussion level for purposes of describing the item on the public meeting agenda.
State Board members recognize the importance of receiving input on educational regulations from parents, educators, administrators, education associations and other stakeholders.
Each year, the State Board adopts a resolution establishing the annual calendar of all public meeting dates and testimony sessions and publishes the dates in the New Jersey Register. An official notice is also sent to the Governor's Office, Press Corps and County Superintendents in order to give notice to the public and education community.
The department will also place the table of contents of each public meeting agenda and the announcement for that month's public testimony session on the department's web sitethe Friday before the public meeting. This will alert the public to the level of code discussion for each chapter and the dates that the State Board is taking testimony for that chapter. The chapter of code will be placed on the web sitethe day after the State Board considers the chapter at "first discussion" level. If the chapter is revised at proposal level, the department will place the revised version on the web site.
Following the second/final discussion of any code chapter, a testimony session is held at the Department of Education. These sessions are usually scheduled from 3:00 p.m. to 5:00 p.m. in the State Board meeting room. Oral testimony is presented to a panel of the State Board, and copies of the written comments are forwarded to all members for their review and consideration.
Interested members of the public must contact the State Board Office by noon on the Friday prior to the hearing date to register to speak at the testimony session. They are asked to submit eight copies of their testimony to the State Board Office for distribution to the panel of State Board members receiving testimony and for distribution to the full State Board and department staff. All speakers must limit their comments to approximately five minutes. The public may also submit written testimony directly to the department by sending one copy to the State Board Office by the date of the testimony session.
The public testimony procedure was initially recommended by a committee of the State Board and adopted by resolution.
At the proposal level of code development, the regulations are brought before the State Board for an official action. The proposal version of code language contains the Commissioner's final recommendations to the State Board and has been approved by OAL for adherence to the APA.
At proposal level, the comment/response form summarizes the changes to the code that are proposed in response to state board members' comments at the discussion levels and the public testimony session.
When the State Board is satisfied with the proposal level code, a majority vote is required to publish the regulations in the New Jersey Register, thereby giving the public notice of the proposed rulemaking and the opportunity to provide comments.
The New Jersey Register is the official publication of the OAL. It is published twice each month and contains all notices of proposed regulations, adopted regulations, executive orders and miscellaneous notices from all state agencies. When regulations are published as "proposed regulations," the public has a 60-day period to submit comments to the state agency. OAL prints the full text of the regulation and the accompanying summary memo which provides a clear and concise explanation of the code's purpose and effect. The proposal notice also includes directions on how, where and when to submit written comments. An agency has one year from the date of publication at proposal level to take final action of adoption on any proposed regulation.
The summary memo published at proposal level is not a legally binding document and is not retained or published after the proposal level. The memo is a requirement of the APA and must include the following:
- a clear, concise explanation of the regulation's purpose and effect;
- a summary of the subject matter of each subchapter;
- why the new regulation, amendment, readoption or repeal is necessary;
- the historical background of the regulation;
- a social impact statement that describes the sociological conditions that may have created a need for the regulation as well as who is impacted and to what degree. The impact statement generally includes students, parents, school districts and taxpayers;
- an economic impact statement that describes the cost of implementing the regulation for all who may be affected. The statement should describe actual costs for complying with the regulation or the type of costs and the dollar range of costs. The impact statement generally includes students, parents, school districts, taxpayers and the department;
- a jobs impact statement which describes whether New Jersey citizens may gain or lose jobs as a result of this regulation;
- an agricultural industry impact statement which describes the nature and extent of the proposed regulation on the state's agricultural industry. If the State Agriculture Development Committee determines that the regulation will have a significant adverse effect, the department must consult with the Committee prior to adoption of the regulation;
- a federal standards statement which states whether or not the proposed regulation exceeds a current federal requirement and, if yes, why it is necessary to promulgate regulations that exceed the federal standard;
- a regulatory flexibility statement that states whether or not the regulation must be met by a small business (fewer than 100 nonpublic employees). For example, a private school for the handicapped qualifies as a small business that may be regulated by specific chapters of code. If a small business is impacted, the regulatory flexibility statement must indicate what accommodations, if any, were made to reduce the requirements to accommodate the small business.
Another public testimony session is held approximately six weeks following the State Board's approval to publish the code regulations in the New Jersey Register. The specific procedures for conducting this session are the same as in Step 7 above.
After the public testimony session and the completion of the 30-day written comment period, department staff review all comments received and provide responses on a Comment/Response Form in preparation for discussion with the State Board (See Step 5). When the regulations are ready for adoption, they are placed on the State Board agenda at the next monthly public meeting. The responsible division executive is available to answer any further questions from the State Board or to review suggestions for modifying the code based upon public comment.
If the State Board makes any changes to the language that was advertised for public comment at proposal level, the changes may need to be proposed as amendments and be readvertised in the NJ Register. If the change meets the criteria of a "major substantive change" as it is defined by NJAC 1:30-4.3(b) and (c), the change must be made as an amendment following adoption of the proposed rule. The process for the amendment begins again at proposal level, proceeds through the publication for public comment and is brought back to the State Board for final adoption (Steps 8-11).
A "major substantive change" is a change that:
increases or curtails who and what will be affected by the proposed rule;
changes what is being mandated by the rule; or
increases or curtails the scope of the proposed rule and its burden on those affected by it.
A "minor" substantive change is permissible at adoption level if it does not increase or curtail the scope of the rule or change what is being mandated. Other minor substantive changes are language changes to clarify the proposal or correct errors. The minor substantive change and the reasons that it is a permissible change must be described in the Comment/Response Form.
If the State Board is satisfied with the final text, a majority vote in the affirmative duly adopts the regulations.
The Comment/Response Form is developed in response to the comments of State Board members, the commentors at the public testimony session and the written comments received during the written comment period. The Comment/Response Form is published in the register at adoption level with the final text of the code language. The adopted regulations and comments are filed with the OAL as a "Notice of Adoption" for publication in the New Jersey Register. This informs the public of the input that was received, the State Board's official action as well as the effective date of the regulations.
The regulations have a five year expiration period and are assigned a sunset date. However, the State Board can amend the regulations at any time during that period based on changing needs or policies. The sunset provision ensures that each chapter is reviewed for its continued effectiveness at least every five years.