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RULE PROPOSALS
VOLUME 41, ISSUE 22
ISSUE DATE: NOVEMBER 16, 2009
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY CEMETERY BOARD

Proposed Amendments: N.J.A.C. 13:44J-2.1, 5.3, 5.4, 5.7, 7.1, 7.2, 8.2, 10.5, 15.1 and 15.2

Definitions; Trust funds; Trust Fund Management; Recordkeeping; Reclamation of Interment Spaces; Memorials; Replacing or Repairing a Foundation; Additional Interment; Obtaining Disinterment Permit; Branch Licenses; Removal of Unauthorized Monumentation; Removal of Unsafe Monumentation

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 2009-338 .

Submit comments by: January 15, 2010 to:

Dianne Tamaroglio, Executive Director
New Jersey Cemetery Board
P.O. Box 45031
Newark , NJ 07101

The agency proposal follows:

Summary

Effective May 2, 2006, 37 N.J.R. 4877(a), 38 N.J.R. 2502(a), the Cemetery Board (Board) readopted its rules, N.J.A.C. 13:44J, with amendments that effectuated most of newly enacted N.J.S.A. 45:27-1 et seq. Due to the exigent nature of the readoption, it was not possible for the Board to adopt all the rules necessary to effectuate this statute. The Board now proposes amendments to N.J.A.C. 13:44J to effectuate the remaining provisions of N.J.S.A. 45:27-1 et seq.

N.J.S.A. 45:27-24 permits a cemetery company to remove any unsafe or unauthorized memorial, embellishment or impediment. The Board proposes to amend N.J.A.C. 13:44J-2.1 to provide a definition for the term "impediment." In N.J.A.C. 13:44J-15.1 and 15.2, the term used to refer to a memorial, embellishment or dedication is "monumentation." The Cemetery Board proposes to amend these rules, so that they use the phrase "memorial, embellishment or impediment" instead of monumentation, which is not defined in the statute or rules.

N.J.A.C. 13:44J-5.3(h) requires cemetery companies to maintain copies of an affidavit that sets forth the gross sales price of interment spaces on resale between heirs or next of kin. This information was necessary in order to ensure that the proper amount was being deposited in the Maintenance and Preservation Fund when a space was transferred to heirs or next of kin. N.J.S.A. 45:27-13 states that sales to next of kin do not constitute transfers for purposes of contributions to the Maintenance and Preservation Fund. It is no longer necessary to make deposits to the Maintenance and Preservation Fund when an interment space is resold to heirs or next of kin or to maintain an affidavit recording the gross sales price on resale. The Board proposes to delete N.J.A.C. 13:44J-5.3(h).

N.J.S.A. 45:27-12 states that capital gains earned by a Maintenance and Preservation Fund are not considered income, except as provided by Board rule. The Board believes that, in order to ensure properly funded Maintenance and Preservation Funds, capital gains must be retained as principal of the Fund. The Board proposes to amend N.J.A.C. 13:44J-5.4 to require that capital gains be retained as principal of the Fund.

N.J.A.C. 13:44J-5.7 deals with reclamation of interment spaces. When the original owner of a reclaimed interment space seeks reimbursement for a reclaimed space, this rule requires the cemetery company to reimburse the owner of the space the net proceeds of the sale of the reclaimed space. New N.J.S.A. 45:27-33 permits a cemetery company to reimburse an original owner by providing a comparable grave or crypt. In the alternative, the original owner may apply to the Board for an order [page=4185] directing the cemetery company to reimburse the owner of the space the proceeds of the sale that were deposited in the Maintenance and Preservation Fund. The Board proposes to delete existing N.J.A.C. 13:44J-5.7(f) and (g) and proposes new subsection (f), (g) and (h) to set forth the procedure by which an original owner may either accept a comparable interment space or niche or apply to the Board for reimbursement of the moneys deposited into the Maintenance and Preservation Fund from the Maintenance and Preservation Fund rather than the operating account.

N.J.A.C. 13:44J-7.1 deals with a cemetery company's ability to regulate memorials, dedications and embellishments on an interment space or niche. The Board proposes to amend this rule to delete the undefined term "dedication." The Board proposes to amend this rule to clarify that a cemetery company may prohibit the placement of a memorial or embellishment that does not conform to cemetery company regulations.

The heading of N.J.A.C. 13:44J-7.2, "removal of monumentation," does not accurately reflect the substance of this rule. The Board proposes to amend this rule by changing the heading of this section to "replacing or repairing a foundation," which more accurately reflects the substance of the rule.

N.J.S.A. 45:27-23 states that a cemetery company need not obtain a disinterment permit for the temporary removal or repositioning of vaulted human remains to allow for the deepening of an interment space. The Board proposes to amend N.J.A.C. 13:44J-8.2 to effectuate this provision.

The Board proposes to amend N.J.A.C. 13:44J-10.5 to clarify that cemetery salespeople must apply for a branch license if they wish to sell for more than one cemetery company.

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 will have a positive social impact. By clarifying provisions in N.J.S.A. 45:27-1 et seq., these amendments will make it easier for cemetery companies to comply with the requirements of this statute. Requiring that capital gains be maintained as principal of the Maintenance and Preservation Fund will ensure that these funds have sufficient corpus to provide for the continued maintenance of a cemetery. Amendments to N.J.A.C. 13:44J-7.1 will benefit cemetery companies by clarifying that they have the right to prohibit memorials and embellishments that do not comply with cemetery company regulations.

Economic Impact

The proposed amendments will have a positive, although slight, economic impact on cemetery companies, in that they will no longer be required to incur the cost of maintaining affidavits documenting resales between heirs or next of kin. The procedures set forth for applying to the Board for an order directing a cemetery company to reimburse the owner of a reclaimed interment space or niche may impose a cost on these owners.

Federal Standards Statement

A Federal standards analysis is not required because the proposed amendments do not involve any Federal standards or requirements.

Jobs Impact

The Board does not believe that the proposed amendments will result in an increase or decrease of jobs in the State.

Agriculture Industry Impact

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

Regulatory Flexibility Analysis

If the approximately 400 cemetery companies operating in New Jersey and the approximately 300 licensed cemetery salespeople are considered "small businesses" for the purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., then the following analysis applies.

The costs imposed on small businesses are the same as those imposed on all businesses as outlined in the Economic Impact statement above. The proposed amendments impose compliance requirements on cemetery companies and applicants for cemetery salesperson branch licenses as explained in the Summary above. The proposed amendments do not impose any recordkeeping or reporting requirements. The Board believes that since the proposed amendments provide for the protection of trust funds and the effective administration of cemetery companies, the rules should be applied uniformly to all cemetery companies and cemetery salespeople.

Smart Growth Impact

The Board does not anticipate that the proposed amendments 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.

Housing Affordability Impact

The proposed amendments will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the regulation would evoke a change in the average costs associated with housing because the proposed amendments concern the operations of cemetery companies.

Smart Growth Development Impact

The proposed amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the regulation would evoke a change in housing production in Planning Areas 1 or 2 or within designated centers under the State Development and Redevelopment Plan in New Jersey because the proposed amendments concern the operations of cemetery companies.

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

SUBCHAPTER 2. DEFINITIONS

13:44J-2.1 Definitions

The following words and terms, when used in this chapter, shall have the following meanings:

. . .

"Impediment" means any item placed on a grave that is an obstacle to access to other graves or is an obstacle to maintenance of the cemetery.

. . .

SUBCHAPTER 5. CEMETERY COMPANIES

13:44J-5.3 Trust funds

(a)-(g) (No change.)

[(h) The gross sales price of spaces on resale and the sales price of interment spaces or niches in a public mausoleum or columbarium on resale between heirs or next of kin shall be set forth in a duly notarized affidavit executed by the transferor and transferee. Such affidavit shall be kept on file in the main office of the cemetery company in question.]

Recodify existing (i) and (j) as (h) and (i) (No change in text.)

13:44J-5.4 Trust fund management; recordkeeping

(a)-(c) (No change.)

(d) Capital gains from the sale of items in a trust fund shall not be treated as income of the Maintenance and Preservation Fund and shall be retained as principal of the Maintenance and Preservation Fund.

13:44J-5.7 Reclamation of interment spaces or niches

(a)-(e) (No change.)

[(f) The original owner of a reclaimed interment space or niche or the heirs of the owner may request reimbursement from the cemetery for the reclaimed interment space or niche at any time. The cemetery shall reimburse the owner or the heirs of the owner the net proceeds from the sale deposited in the Maintenance and Preservation Fund pursuant to (d) above. Payment shall be made from the operating revenues of the cemetery.

(g) A cemetery that has reimbursed, from operating revenues, an owner or the heirs of the owner of a reclaimed interment space or niche may apply to the Board for a credit against future deposits to the Maintenance and Preservation Fund. A cemetery that applies for a credit [page=4186] against future deposits shall submit a written request to the Board which shall include documentation that indicates:

1. The amount for which the interment space or niche was sold;

2. That the net proceeds of the sale of the interment space or niche were deposited in the Maintenance and Preservation Fund, and the date of the deposit;

3. The location of the interment space or niche and the identity of the original owner; and

4. That payment was made to the owner or heirs of the owner of the reclaimed interment space or niche.]

(f) The original owner of a reclaimed interment space or niche or the heirs of the owner may request reimbursement from the cemetery company for the reclaimed interment space or niche. Upon proving ownership, the owner or heirs shall have the option of either accepting a comparable interment space or niche in the cemetery or reimbursement of the proceeds that were deposited in the Maintenance and Preservation Fund.

(g) If the original owner of a reclaimed interment space or niche or the heirs of the owner choose reimbursement of the proceeds that were deposited in the Maintenance and Preservation Fund, the cemetery company shall provide the owner or heirs with the information required by (h)1 below, so that the owner or heirs may apply to the Board for an order directing the cemetery company to pay to the owner or heirs, out of the Maintenance and Preservation Fund, the proceeds of the sale that were deposited in the Maintenance and Preservation Fund.

(h) The original owner of a reclaimed interment space or niche or the heirs of the owner who apply to the Board for an order directing the cemetery company to pay to the owner or heirs, out of the Maintenance and Preservation Fund, the proceeds of the sale of the interment space or niche that were deposited in the Maintenance and Preservation Fund shall submit to the Board:

1. A photocopy of the document of sale, which indicates the price for which the reclaimed interment space or niche was sold and the date of the sale, obtained from the cemetery company pursuant to (f) above; and

2. Proof that the individual owned the reclaimed interment space or niche or are the heirs of the owner.

SUBCHAPTER 7. MEMORIALS

13:44J-7.1 Memorials

(a) (No change.)

(b) A lot owner shall have the right to place a memorial[, dedication] or embellishment on any interment space or niche [which] that he or she owns, and to approve or disapprove any memorial[, dedication] or embellishment placed or sought to be placed on an interment space or niche [which] that he or she owns, except that:

1. In the absence of an agreement between the lot owner and the party having control over the remains, the lot owner shall not unreasonably withhold approval of a memorial on an interment space after an interment has been made therein; [and]

2. The cemetery company may, pursuant to N.J.S.A. 45:27-16, preclude the placement of a memorial until any outstanding charges against the interment space or niche are paid[.] ; and

3. A cemetery company may prohibit the placement of a memorial or embellishment that does not comply with cemetery company regulations regarding memorials and embellishments adopted pursuant to (d) below.

(c) A person who places a memorial[, dedication] or embellishment on an interment space or niche without the prior approval of the lot owner shall remove the memorial[, dedication] or embellishment at his or her own expense if the lot owner so directs.

(d) A cemetery company may adopt reasonable regulations regarding the size, form, color, composition, uniformity, construction, placement[,] and inscription of any memorial, [dedication,] embellishment or other structures sought to be placed on cemetery premises. Such regulations shall not give a competitive advantage to a particular monument dealer.

(e) A cemetery company may prohibit the installation of a memorial[, dedication] or embellishment if it determines that the memorial, [dedication,] embellishment or other structures would be inappropriate, offensive[,] or unsafe, [or] that it would be significantly detrimental to the uniform appearance of the cemetery[,] or that it would impose an unreasonable maintenance burden.

(f)-(g) (No change.)

13:44J-7.2 [Removal of monumentation] Replacing or repairing a foundation

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

SUBCHAPTER 8. DISINTERMENT

13:44J-8.2 Additional interment; obtaining disinterment permit

(a) In the event [the] that non-vaulted remains already in an interment space must be lowered to accommodate an additional interment, a disinterment [order] permit shall be obtained permitting the lowering of the remains already in the interment space.

(b) In the event that vaulted remains already in an interment space must be lowered to accommodate an additional interment, the cemetery company need not obtain a disinterment permit.

[(b)] (c) (No change in text.)

SUBCHAPTER 10. SALESPEOPLE

13:44J-10.5 Branch licenses

(a) A cemetery salesperson may sell for more than one cemetery company. A cemetery salesperson who sells for more than one cemetery company shall [obtain] apply for an initial license for the first cemetery company for which he or she sells and a branch license for every other cemetery company for which he or she sells.

(b) A cemetery salesperson who applies for a branch license shall submit an application and pay a branch license fee pursuant to N.J.A.C. 13:44J-3.1(a)2iv.

(c) (No change.)

13:44J-15.1 Removal of unauthorized [monumentation] memorial, embellishment or impediment

(a) (No change.)

(b) A cemetery company may recover the cost of removing [monumentation] a memorial, embellishment or impediment, pursuant to (a) above.

(c) (No change.)

13:44J-15.2 Removal of unsafe [monumentation] memorial, embellishment or impediment

(a) (No change.)

(b) A cemetery company that wishes to remove an unsafe [monumentation] memorial, embellishment or impediment shall:

1. Take pictures of the unsafe [monumentation] memorial, embellishment or impediment prior to moving and maintain these photographs as part of its records; and

2. Within 30 days of the removal, notify the owner by certified letter, return receipt requested that an unsafe [monumentation] memorial, embellishment or impediment has been moved. Such notification shall state that the owner has the right to apply to the Board within six months of the notification for appropriate relief, such as [restoration] re-installation of [monumentation] the memorial, embellishment or impediment .

(c) (No change.)


If you wish to submit comments about this rule proposal, please fill out the form below. When you have completed the form, click the "Submit Your Comments" button below.

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