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NEW JERSEY REGISTER
VOLUME 38, ISSUE 19
ISSUE DATE: OCTOBER 2, 2006
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY CEMETERY BOARD
Annual Reports; Application for License as a Cemetery Salesperson; Prohibited Activities

Proposed Amendments: N.J.A.C. 13:44J-5.6 and 10.2
Proposed New Rule: N.J.A.C. 13:44J-10.7

Authorized By: New Jersey Cemetery Board, Dianne Tamaroglio, Executive Director.
Authority: N.J.S.A. 45:27-4.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2006-324.

Submit comments by December 1, 2006 to:
Dianne Tamaroglio, Executive Director
New Jersey Cemetery Board
PO Box 45031
Newark, NJ 07101

The agency proposal follows:

Summary

Pursuant to its rulemaking authority in N.J.S.A. 45:27-4, the New Jersey Cemetery Board (the Board) proposes amendments to N.J.A.C. 13:44J-5.6 and 10.2 and proposes new rule N.J.A.C. 13:44J-10.7.

N.J.A.C. 13:44J-3.1 requires that cemetery companies submit a $ 75.00 filing fee when they submit the annual Maintenance and Preservation Fund Report. In recent years, the Board has become aware that several financially distressed cemetery companies find it burdensome to pay this fee. The Board has decided to amend N.J.A.C. 13:44J-5.6 so that a cemetery company that is financially distressed may request that the Board waive the filing fee. The Board believes that a cemetery company whose income from the maintenance and preservation fund is $ 1,000 or less in a year qualifies as being financially distressed. The Board proposes to amend N.J.A.C. 13:44J-5.6 so that such a cemetery company will not be required to pay the filing fee. N.J.S.A. 45:27-37b(4) states that an applicant for licensure must show that he or she is not barred from acting as a cemetery salesperson because of other employment. The Board has interpreted this prohibition as a reference to N.J.S.A. 45:27-16(c), which prohibits a cemetery company from engaging in the manufacture or sale of memorials, the manufacture or sale of private mausoleums, the manufacture or sale of vaults and the conduct of any funeral home or profession of mortuary science. The Board proposes to amend N.J.A.C. 13:44J-10.2 to require an applicant for licensure as a cemetery salesperson to submit an affidavit stating that he or she will not engage in any activity prohibited by N.J.S.A. 45:27-16(c) while actively licensed as a cemetery salesperson. The Board proposes new N.J.A.C. 13:44J-10.7 to prohibit an actively licensed cemetery salesperson from engaging in any activity prohibited by N.J.S.A. 45:27-16(c).

As the Board has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The Board believes that the proposed amendments and new rule will have a beneficial impact on society. The proposed amendments to N.J.A.C. 13:44J-5.6 allow a cemetery company in financial distress to request a waiver of the annual Maintenance and Preservation Fund Report filing fee. Moreover, if the income a cemetery company receives from the maintenance and preservation fund is $ 1,000 or less, the filing fee will be automatically waived. This benefits those cemetery companies for whom paying the $ 75.00 filing fee is a financial burden. Proposed amendments to N.J.A.C. 13:44J-10.2 and proposed new N.J.A.C. 13:44J-10.7 ensure that cemetery salespeople do not engage in activities prohibited by N.J.S.A. 45:27-16(c). This benefits those who receive services from cemetery salespeople in that the salespeople will only be engaged in the sale of interment spaces and niches and will not attempt to pressure consumers into buying any funerary goods.

Economic Impact

The Board believes that the proposed amendments and new rule will have a beneficial economic impact on those cemetery companies that find it financially burdensome to pay the annual Maintenance and Preservation Fund Report filing fee. The proposed amendments to N.J.A.C. 13:44J-10.2 and proposed new N.J.A.C. 13:44J-10.7 may have an economic impact on some individuals who are currently working as cemetery salespeople. These proposed amendments and new rule prohibit cemetery salespeople from engaging in activities prohibited by N.J.S.A. 45:27-16(c). This prohibition may cause licensed cemetery salespeople who are currently engaged in such activities to leave the cemetery sales profession, which would have an impact on their income.

Federal Standards Statement

A Federal standards analysis is not required because there are no Federal laws or standards applicable to the proposed amendments or new rule.

Jobs Impact

The Board does not believe that the proposed amendments and new rule will increase or decrease the number of jobs in New Jersey.

Agriculture Industry Impact

The Board does not believe that the proposed amendments and new rule will have any impact on the agriculture industry of this State.

Regulatory Flexibility Analysis

If, for purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., the approximately 400 cemetery companies operating in New Jersey and the approximately 300 licensed cemetery salespeople in the State are deemed "small businesses," then the following analysis applies. The proposed amendments and new rule do not require cemetery companies or cemetery salespeople to employ professional services in order to comply with its dictates. The economic impact on small businesses is the same as those imposed on all businesses, as detailed in the Economic Impact statement above. The proposed amendments and new rule do not impose any reporting or recordkeeping requirements, but do impose compliance requirements. N.J.S.A. 13:44J-5.6(d) provides for an automatic waiver of the filing fee for any cemetery company whose income from the Maintenance and Preservation Fund Report is $ 1,000 or less. The Board believes that the cemetery companies that qualify for this waiver will likely be small businesses as defined in the Act. As the compliance requirements contained in the proposed amendments, as described in the Summary above, are necessary to allow financially distressed cemetery company to obtain a waiver of the annual Maintenance and Preservation Fund Report filing fee and to ensure that actively licensed cemetery salespeople are not engaged in prohibited activities, the Board believes that the amendments and rule must be uniformly applied to all cemetery companies and licensees and no exemptions are provided based on the size of the licensee's business.

Smart Growth Impact

The Board does not anticipate that the proposed amendments and new rule will have any impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.

Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

13:44J-5.6 Annual reports

(a)-(b) (No change.)

(c) Except as provided in (d) below, a cemetery company may request that the Board waive the filing fee required by N.J.A.C. 13:44J-3.1(a)3. A request for waiver shall be included with the report filed pursuant to (a) above. The Board shall grant the waiver if it determines that the annual report indicates that the cemetery company requesting the waiver does not have sufficient income from the Maintenance and Preservation Fund and from any other sources to cover the costs of maintaining the cemetery and paying the fee. If the Board determines that the fee should not be waived, it shall inform the cemetery company that the fee has not been waived and the cemetery company shall pay the fee within 60 days of receiving notification.

(d) Any cemetery company whose income from the maintenance and preservation fund, as indicated in the annual report filed pursuant to (a) above, is $ 1,000 or less shall not be required to pay the filing fee required by N.J.A.C. 13:44J-3.1(a)3 and shall not be required to request a waiver pursuant to (c) above.

13:44J-10.2 Application for license as a cemetery salesperson

(a) An applicant for an initial cemetery salesperson license shall submit the following:

1.-6. (No change.)

7. For applicants who reside outside of New Jersey, a completed designation of agent form; [and]

8. A completed child support questionnaire[.]; and

9. An affidavit stating that the applicant will not engage during active licensure as a cemetery salesperson in any activity prohibited by N.J.S.A. 4:27-16(c), which includes:

i. The manufacture or sale of memorials;

ii. The manufacture or sale of private mausoleums;

iii. The manufacture or sale of vaults, including vaults installed in a grave before or after sale and vaults joined with each other in the ground; and

iv. The conduct of any funeral home or the business or profession of mortuary science.

(b)-(e) (No change.)

13:44J-10.7 Prohibited activities

(a) A cemetery salesperson shall not engage during active licensure as a cemetery salesperson in any activity prohibited by N.J.S.A. 45:27-16(c) including:

1. The manufacture or sale of memorials;

2. The manufacture or sale of private mausoleums;

3. The manufacture or sale of vaults, including vaults installed in a grave before or after sale and vaults joined with each other in the ground; and

4. The conduct of any funeral home or the business or profession of mortuary science.



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