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NEW JERSEY REGISTER
VOLUME 36, NUMBER 7
MONDAY, APRIL 5, 2004
RULE PROPOSAL

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY BOARD OF EXAMINERS OF MASTER PLUMBERS
DEFINITIONS; SCOPE OF PRACTICE; WITHDRAWAL OF BONA FIDE REPRESENTATIVE

Reproposed Amendments: N.J.A.C. 13:32-1.3 and 3.2

Proposed New Rule: N.J.A.C. 13:32-1.4

Authorized By: New Jersey Board of Examiners of Master Plumbers,
Barbara Cook, Executive Director.

Authority: N.J.S.A. 45:1-14C-7.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2004-138.

Submit written comments by June 4, 2004 to:

Barbara Cook, Executive Director

New Jersey Board of Examiners of Master Plumbers

PO Box 45008

124 Halsey Street

Newark, NJ 07101

The agency proposal follows:

Summary

Rules regarding the bona fide representative requirements for the State Board of Master Plumbers (the Board) were originally proposed on December 6, 1999 at 31 N.J.R. 3984(a). During the comment process, several commenters were concerned with the proposed definition of plumbing in N.J.A.C. 13:32-1.3 which stated that only a licensed master plumber could install a pipe between the building and the building property line. These commenters pointed out that a November 29, 1989 Attorney General's Opinion concluded that requiring that only a licensee may install piping between a building to the property line is unconstitutional. The commenters also noted that this Attorney General's Opinion was affirmed by the Superior Court in Mechanical Contractors Ass'n of New Jersey, Inc. v. State, 255 N.J. Super. 488 (App. Div. 1992). The commenters thus asserted that the Board's regulations should clarify that licensed plumbers are not the only individuals who can install piping between a building and its respective property line.

The Board did not adopt the proposed definition of plumbing so that it could consider the commenters' concern in light of the Attorney General's Opinion and the Mechanical Contractors decision. The Board points out that the definition of plumbing in N.J.S.A. 45:14C-2 has not been modified since the Mechanical Contractors decision. The Board has determined to propose a definition that reflects the court decision and the Attorney General's Opinion and to incorporate the concerns of the commenters into the definition of plumbing. As initially proposed, the definition of plumbing stated that plumbing means the practice, materials and fixtures used in installing, maintaining, extending, altering, repairing and removing piping, plumbing fixtures, plumbing appliances and plumbing apparatus. The definition included the construction of sewers to their final connection to an approved point of disposal and connection of water supply systems to their final connection with an approved supply system. This reproposal adds a new section to the definition of plumbing which states that plumbing does not include the final connection to an approved point of disposal or an approved supply system which extends beyond three feet of a building or structure. This amendment conforms to the Attorney General's Opinion and the Mechanical Contractors decision.

Several commenters expressed the view that there was a contradiction in the proposed rules in that N.J.A.C. 13:32-3.2(d) would allow a plumbing contractor to operate for six months without a bona fide representative if the bona fide representative dies but N.J.A.C. 13:32-3.2(c) would allow a plumbing contractor to operate for only 10 days if the plumbing contractor's bona fide representative ceased to act in that capacity. The commenters asserted that the 10-day limit imposed by proposed N.J.A.C. 13:32-3.2(c) would be impossible to meet for most plumbing contractors and that the rule would impose financial hardship on companies and their employees and an inconvenience to consumers who had contracted for services. The commenters maintained that a plumbing contractor who loses a bona fide representative should be given six months to find a replacement irrespective of the cause for the loss of the bona fide representative. In response to the commenters' concerns, the Board did not adopt N.J.A.C. 13:32-3.2(c) so that it could reconsider the provisions in question.

Upon review, the Board has decided that the 10-day period which had been set forth in proposed N.J.A.C. 13:32-3.2(c) would unduly burden a plumbing contractor whose bona fide representative has withdrawn because it would be impractical to find a new bona fide representative within 10 days. In turn, it would be unduly harsh for a plumbing contractor to cease all plumbing services after that 10-day period has passed. The Board has decided to repropose this rule to permit a plumbing contractor whose bona fide representative has withdrawn to continue to operate for 60 days while seeking a new bona fide representative. However, the plumbing contractor must have a licensee who can supervise all work pursuant to N.J.A.C. 13:32-3.3(a)3, the plumbing contractor and the bona fide representative must each inform the Board of the withdrawal within 10 days of the withdrawal and the supervising licensee must notify the Board within 10 days of his or her appointment as the supervising licensee.

The Board also determined that there are reasons to distinguish this requirement from the situation involving a bona fide representative's death, illness or disability. In these circumstances, N.J.S.A. 45:14C-20 controls and affords a six-month period to designate a new bona fide representative. Moreover, in these circumstances the unavailability of the bona fide representative is more likely to be unexpected, thus requiring more time to designate a replacement.

The Board is also proposing new rule N.J.A.C. 13:32-1.4 to delineate the type of plumbing work which is considered within the appropriate scope of a licensee's practice. The Board has received inquiries from both licensees and non-licensees which have raised questions concerning what plumbing work requires a license issued by the Board and which work does not. In response to these inquiries, the Board investigated several areas of plumbing work which were in question to determine whether they should be subject to Board jurisdiction and, therefore, to be performed only by licensees. The Board also consulted with representatives from the Department of Community Affairs to assist in the delineation of plumbing work responsibilities between licensees and non-licensees. Based on the Board's investigation of the type of work which should be performed only by Board licensees and through the consultation with the Department of Community Affairs, the Board has decided to propose new rule N.J.A.C. 13:32-1.4 to clarify the permissible scope of plumbing practice. N.J.A.C. 13:32-1.4 outlines the permissible scope of plumbing practice. Subsection (a) states that the scope of plumbing practice includes that which is defined as plumbing in N.J.A.C. 13:32-1.3. Subsection (b) states that plumbing may only be performed by a master plumber, a plumbing contractor or employees who work under the supervision of a master plumber. Subsection (c) outlines the type of work which is also considered within the scope of plumbing practice which may only be performed by the individuals designated in subsection (b). In particular, subsection (c) clarifies that all work that is considered plumbing under the definition in N.J.A.C. 13:32-1.3 must be performed by a licensee, even work that is considered minor work or ordinary repairs and which does not require a permit. This provision seeks to clarify confusion engendered by an interpretation of law by the Department of Community Affairs which provides that minor work and ordinary repairs do not require a permit. This has led some to conclude that, because a permit is not required for some specific work, a license is not required of the person performing that work. Subsection (c) clarifies that minor work and ordinary repairs are plumbing and, therefore, must be performed by a licensee. Subsection (d) specifies that which is not within the scope of practice and may be performed by non-licensees. Subsection (e) states that the scope of practice rule does not apply to a single-family home owner who performs plumbing work on his own dwelling and plumbing work performed by employees of a public agency on property owned by the agency. Subsection (f) requires a licensee who is performing a task which is not considered plumbing to perform that task in a manner consistent with professional standards.

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 reproposed amendments will have a positive impact on consumers and licensees. The Board, in defining plumbing, is clarifying the definition of plumbing in the statute as modified by the courts for the benefits of plumbers and the public. This clarification ensures that only licensees will perform tasks which require the skills and experience of a licensee.

The amendment to permit a plumbing contractor to continue operations for 60 days if the bona fide representative withdraws provides plumbing contractors sufficient time to find a new bona fide representative while allowing them to continue to function as a business. The provision provides consumers the continued services of these plumbing contractors while ensuring that all work performed for the consumer is properly supervised.

Proposed new rule N.J.A.C. 13:32-1.4 will have a positive impact on licensees and the general public. The rule demarcates the plumbing work that must be performed by Board licensees versus non-licensees which will clear up existing confusion among these two groups and the general public.

Economic Impact

The Board does not believe that the reproposed definition of plumbing or proposed new rule N.J.A.C. 13:32-1.4 will have an economic impact on consumers or licensees. The Board does believe that the amendment to permit a plumbing contractor to continue operations for 60 days if the bona fide representative withdraws will have a beneficial economic impact on plumbing contractors. These contractors will be allowed to continue operations, and to earn income, while they look for a new bona fide representative.

Federal Standards Statement

A Federal standards statement is not required because there are no Federal standards or requirements applicable to the subject matter of the reproposed amendments and proposed new rule.

Jobs Impact

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

Agriculture Industry Impact

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

Regulatory Flexibility Analysis

The Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., requires the Board to give a description of the types and an estimate of the number of small businesses to which the proposal will apply. If the approximately 7,000 master plumbers which the Board licenses are considered "small businesses" for the purposes of the Act, then the following analysis applies.

The Act requires the Board to set forth the reporting, recordkeeping and other compliance requirements of the proposal including the kinds of professional services likely to be needed to comply with the requirements. The Act further requires the Board to estimate the initial and annual compliance costs of the proposal with an indication of the varying impact on small businesses of differing types and sizes and to outline the manner in which it has designed the rules to minimize any adverse economic impact upon small businesses.

The reproposed amendments and proposed new rule do not impose any recordkeeping requirements. They do impose compliance and reporting requirements. N.J.A.C. 13:32-3.2(c) requires that a plumbing contractor whose bona fide representative withdraws obtain the services of a licensee who will supervise all the work performed by the plumbing contractor and requires that the plumbing contractor find a new bona fide representative within 60 days of the withdrawal. N.J.A.C. 13:32-1.4 sets forth compliance requirements in that it outlines the scope of work permitted to be performed by master plumbers and that work which may be performed by non-licensees. The rule also requires licensees to perform tasks that are not considered plumbing in a manner consistent with professional standards.

The reproposed amendments to N.J.A.C. 13:32-3.2(c) impose reporting requirements in that the plumbing contractor and the bona fide representative are required to inform the Board of a withdrawal within 10 days and the supervising licensee notify the Board within 10 days of being appointed as the supervising licensee.

The Board does not anticipate that any professional services would have to be employed in order to comply with the reproposed amendments and new rule.

The Board believes that because the reproposed amendments and proposed new rule further the welfare and safety of the public in its dealings with licensees, and bona fide representatives in particular, the provisions must be applied uniformly to all licensees and their entities regardless of the size of the business.

Smart Growth Impact

The Board does not anticipate that the reproposed amendments and proposed 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 :

<< NJ ADC 13:32-1.3 >>

13:32-1.3 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

<<+"Plumbing" means the practice, materials and fixtures used in the installation, maintenance, extension, alteration, repair and removal of all piping, plumbing fixtures, plumbing appliances and plumbing apparatus in connection with any of the following: sanitary drainage, storm facilities and building sewers to their respective final connection to an approved point of disposal, venting systems, public and private water supply systems of any premises to and within the property line of any building or structure to their final connection with an approved supply system. "Plumbing" also means the practice and materials used in the installation, maintenance, extension, alteration, repair or removal of stormwater, refrigeration and air conditioning drains, liquid waste or sewage. "Plumbing" does not include the final connection to an approved point of disposal or an approved supply system which extends beyond three feet of a building or structure.+>>

<< NJ ADC 13:32-1.4 >>

13:32-1.4 <<-(Reserved)->> <<+Scope of practice+>>

<<+(a) This section prescribes the permissible scope of plumbing practice which shall include that which is defined as plumbing in N.J.A.C. 13:32- 1.3.+>>

<<+(b) Plumbing shall be performed by a master plumber, an authorized plumbing contractor, or by employees working under the supervision of a master plumber as permitted by N.J.S.A. 45:14C-1 et seq. and N.J.A.C. 13:32- 3.3.+>>

<<+(c) For purposes of this section, the following shall also be considered within the scope of the practice of plumbing and shall only be performed by individuals designated in (b) above:+>>

<<+1. Performing of plumbing work, including minor work and ordinary repairs even though a permit is not required;+>>

<<+2. Installation and service of storm, sanitary, and water piping to the final point of connection within three feet of the exterior of a building or structure located on private property;+>>

<<+3. Installation of the water service and backflow preventer for fire suppression systems and water sprinkler systems;+>>

<<+4. Plumbing work performed at a place of business by employees of that business on property owned by the business;+>>

<<+5. Disconnection and sealing of water and sewer lines;+>>

<<+6. Installation and service of all direct and indirect drain piping associated with mechanical equipment that is connected to a sewer system;+>>

<<+7. Installation and completion of plumbing, at no cost, notwithstanding that the property is owned by a nonprofit organization;+>>

<<+8. Installation or disconnection of water filtration or water softening equipment, water heaters, humidifiers, ice making equipment or backflow preventers;+>>

<<+9. Installation of water piping on the house side of a well water compression tank; and+>>

<<+10. Installation and service of storm, sanitary and water piping between buildings or structures on a property.+>>

<<+(d) For purposes of this section, the following is not within the scope of the practice of plumbing and may be performed by individuals who are not licensed master plumbers:+>>

<<+1. The clearance of stoppages and installation or removal of a cleanout or cleanout equivalent necessary to clear the stoppage;+>>

<<+2. The installation and service of storm, sanitary, and water piping from the final point of connection more than three feet from the exterior of a building or structure located on private property;+>>

<<+3. The installation, service, and maintenance of fire suppression systems and lawn sprinkler systems downstream from a back flow prevention device;+>>

<<+4. The installation, service, and maintenance of gas and hydronic piping;+>>

<<+5. The demolition or removal of plumbing, provided the water and sewer utilities are first disconnected and sealed outside the building;+>>

<<+6. The installation and service of transmission piping by water or sewer utilities; and+>>

<<+7. The installation and service of water lines to mechanical equipment downstream from a back flow prevention device.+>>

<<+(e) The provisions of this section shall not apply to:+>>

<<+1. A single-family home owner who performs plumbing work in his or her own dwelling; and+>>

<<+2. Plumbing work performed by full-time employees of a public agency on property owned by that agency.+>>

<<+(f) A licensed master plumber who performs a task which is not considered plumbing as outlined in (d) above shall perform the task in a manner consistent with professional plumbing standards.+>>

<< NJ ADC 13:32-3.2 >>

13:32-3.2 Bona fide representative; reporting responsibilities

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

(c) <<-(Reserved)->> <<+If a bona fide representative for any firm, partnership, corporation or other legal entity contemplated by N.J.S.A. 45:14C-1 et seq. withdraws as the bona fide representative, the firm, partnership, corporation or other legal entity may continue to operate for 60 days without a bona fide representative provided that a licensee supervises all work to be conducted in the same manner as required by a bona fide representative pursuant to N.J.A.C. 13:32-3.3(a)3, the bona fide representative and the firm, partnership, corporation or other legal entity notifies the Board within 10 days of the withdrawal of the bona fide representative and the supervising licensee notifies the Board within 10 days of being appointed as the supervising licensee.+>>

(d) (No change.)

 

  

  

  

  

  

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