VOLUME 43, ISSUE 04
ISSUE DATE: FEBRUARY 22, 2011
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY CEMETERY BOARD
Proposed Readoption: N.J.A.C. 13:44J
Authorized By: New Jersey Cemetery Board, Dianne Tamaroglio, Executive Director.
Authority: N.J.S.A. 45:27-4b.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2011-048.
Submit comments by April 23, 2011 to:
Dianne Tamaroglio, Executive Director
New Jersey Cemetery Board
PO Box 45031
Newark, NJ 07101
The agency proposal follows:
The New Jersey Cemetery Board (the Board) proposes to readopt N.J.A.C. 13:44J without amendments. These rules are scheduled to expire on October 29, 2011 pursuant to N.J.S.A. 52:14B-5.1c. The Board believes that the rules proposed for readoption are necessary, reasonable, understandable and responsive to the purposes for which they were originally promulgated. These rules have had a beneficial impact on the regulation and conduct of cemetery companies by enabling the Board to [page=379] have in place procedures that serve and protect the public interest. The following summarizes each subchapter in N.J.A.C. 13:44J.
Subchapter 1 sets forth the entities that are subject to the requirements of N.J.A.C. 13:44J and exempts religious corporations, religious societies and cemeteries owned by religious corporations from the dictates of these rules, except where exceptions are specifically stated. Subchapter 2 sets forth definitions for terms used in N.J.A.C. 13:44J. Subchapter 3 sets forth the fees the Board charges. Subchapter 4 sets forth the organizational structure of the Board.
Subchapter 5 sets forth requirements for cemetery companies. N.J.A.C. 13:44J-5.1 prohibits cemetery companies from selling or installing certain burial products. N.J.A.C. 13:44J-5.2 requires every cemetery company to have a price list. The price list must be filed with the Board and posted on the grounds of the cemetery company. The rule also sets forth standards for monies paid to a cemetery company for future services. N.J.A.C. 13:44J-5.3 and 5.4 set forth standards for trust funds held by cemetery companies. N.J.A.C. 13:44J-5.4A permits co-mingling of certain trust funds.
N.J.A.C. 13:44J-5.5 requires a cemetery company involved in litigation to file specific documentation related to that litigation with the Board. N.J.A.C. 13:44J-5.6 requires cemetery companies to file an annual report with the Board. N.J.A.C. 13:44J-5.7 states the process by which a cemetery company may reclaim an unused interment space or niche. N.J.A.C. 13:44J-5.8 prohibits a cemetery company from closing for more than three consecutive days.
Subchapter 6 requires cemetery companies to maintain rules and maps of cemetery grounds. The subchapter also sets forth standards for paths in cemeteries and for the construction of public mausoleums.
Subchapter 7 sets forth standards for memorials placed on interment spaces or niches. N.J.A.C. 13:44J-7.1 requires cemetery companies to permit reasonable memorialization on interment spaces and allows cemetery companies to remove unauthorized memorials. A cemetery company is prohibited from selling commercially available bases for memorials.
N.J.A.C. 13:44J-7.2 makes a cemetery company responsible if a foundation installed by the cemetery company sinks or otherwise falls into disrepair within 10 years of installation. After 10 years from installation, a cemetery company is permitted to charge a lot owner a fee to cover the cost of raising, replacing or repairing a foundation that is sunken or otherwise in disrepair. N.J.A.C. 13:44J-7.3 establishes that burying a memorial is considered a removal of that memorial.
Subchapter 8 sets forth standards for disinterments from interment spaces or niches. N.J.A.C. 13:44J-8.1 deals with interment of unrelated individuals. If a cemetery company permits interment of unrelated individuals in an interment space, the cemetery company must notify the individual authorizing interment of a body in the space that disenterments will be allowed only upon the consent of the surviving spouse and children of any bodies interred above the body to be disinterred, or by a court order. When a cemetery company allows cremated remains of unrelated individuals to be placed in a niche, the cemetery company must notify the individual authorizing the inurnment in writing that remains may be removed upon the consent of the individual with the right to control the removal of remains.
N.J.A.C. 13:44J-8.2 requires that a cemetery company obtain a disinterment permit when remains that are not vaulted are to be lowered to provide for additional interments in an interment space. A cemetery company need not obtain this permit when remains are vaulted. The rule requires cemetery companies to open multiple depth graves owned by a single purchaser to the depth necessary for any future interments in the grave. N.J.A.C. 13:44J-8.3 permits cemetery companies to prohibit recording disinterments. This prohibition does not apply to recordings made by the owner of an interment space or as part of a criminal investigation.
N.J.A.C. 13:44J-8.4 permits cemetery companies to temporarily store human remains prior to final interment for up to four years. A cemetery company can get an extension beyond four years from the person who has the right to control the remains. Prior to transferring human remains from temporary storage to the place of final interment, a cemetery company is required to notify the funeral director that supervised the delivery of the remains to the site of temporary storage. A cemetery company cannot temporarily store a body of a person who died of a communicable disease.
Subchapter 9 permits a cemetery company to ship cremated human remains. A cemetery company that ships cremated human remains must label the package to indicate that it contains cremated human remains and must insure the package.
Subchapter 10 sets forth requirements for cemetery salespeople. N.J.A.C. 13:44J-10.1 requires a cemetery salesperson to obtain a license from the Board. N.J.A.C. 13:44J-10.2 sets forth the documentation an applicant for licensure as a cemetery salesperson is required to submit to the Board. N.J.A.C. 13:44J-10.3 requires biennial renewal of licenses. N.J.A.C. 13:44J-10.4 requires cemetery salespeople to have their license with them when acting as cemetery salespeople and to keep a copy of their license at the office of the cemetery companies for which they work.
N.J.A.C. 13:44J-10.5 permits a cemetery salesperson to work for more than one cemetery company. A cemetery salesperson who works for more than one cemetery company must have a branch license for each additional cemetery company for which he or she works. N.J.A.C. 13:44J-10.6 prohibits a county or municipality from requiring licensed cemetery salespeople to obtain a county or municipal license. N.J.A.C. 13:44J-10.7 sets forth activities that are prohibited for licensed cemetery salespeople.
Subchapter 11 sets forth standards for interment spaces or niches. N.J.A.C. 13:44J-11.1 provides that interment spaces that have been used for interment or entombment are inalienable. N.J.A.C. 13:44J-11.2 allows owners of unused interment spaces or niches to transfer such spaces or niches. N.J.A.C. 13:44J-11.3 requires cemetery companies to maintain records on the transfer of interment spaces or niches.
Subchapter 12 is a reserved subchapter.
Subchapter 13 deals with applications to the Board. N.J.A.C. 13:44J-13.1 sets forth the information that must be filed when a cemetery company applies for a certificate of authority. N.J.A.C. 13:44J-13.2 and 13.3 set forth the information that must be submitted to the Board when a cemetery company seeks to dissolve or to merge with another cemetery company. N.J.A.C. 13:44J-13.4 and 13.5 require cemetery companies to apply to the Board when they seek to sell land dedicated to cemetery purposes or purchase land to enlarge the cemetery area. N.J.A.C. 13:44J-13.6 sets forth the information that must be submitted to the Board when a cemetery company seeks to lease its land to another entity. N.J.A.C. 13:44J-13.7 sets forth the process for obtaining a certificate of authority for a for-profit management company that will manage, operate or provide management services to a cemetery company. N.J.A.C. 13:44J-13.8, 13.9 and 13.10 are reserved sections.
Subchapter 14 sets forth requirements for the sale of interment spaces or niches. N.J.A.C. 13:44J-14.1 covers bulk sales of interment spaces or niches. A "bulk sale" is defined as the sale of 17 or more interment spaces or niches to a membership, religious corporation or unincorporated association or society in a single transaction or multiple transactions. The rule also sets forth how a cemetery company may obtain Board approval for a bulk sale of interment spaces or niches.
N.J.S.A. 45:27-32 prohibits a person from purchasing an interment space for the purpose of reselling the space. The law provides an exemption to this prohibition for religious corporations and unincorporated associations or societies that buy interment spaces in bulk for resale to its members. N.J.A.C. 13:44J-14.2 permits these entities to sell spaces to other similar entities, but requires that they obtain Board approval for the sale.
N.J.A.C. 13:44J-14.3 allows cemetery companies to sell spaces in mausoleums that have not been constructed and establishes procedures that cemetery companies must follow when making such sales. N.J.A.C. 13:44J-14.4 permits cemetery companies to reclaim spaces sold to membership or religious corporations, societies or unincorporated associations if these entities fail to comply with the requirements of N.J.S.A. 45:27-32. When a cemetery company sells 17 or more interment spaces or niches to a person who does not qualify as a membership or religious corporation or unincorporated association or society, N.J.A.C. 13:44J-14.5 requires the cemetery company to submit affidavits to the Board indicating that the purchaser is not purchasing the spaces or niches in order to resell them. N.J.A.C. 13:44J-14 Appendices A and B set forth models for these affidavits.
[page=380] Subchapter 15 sets forth requirements for a cemetery company that seeks to remove monumentation. N.J.A.C. 13:44J-15.1 permits a cemetery company to remove a memorial, embellishment or impediment that was not authorized by the cemetery company or that has been altered from the authorized original design. N.J.A.C. 13:44J-15.2 permits a cemetery company to remove any unsafe memorial, embellishment or impediment. N.J.A.C. 13:44J-15.3 requires a cemetery company to apply to the Board for permission to remove a memorial in order to renovate cemetery grounds.
The Board has determined that the comment period for this notice of proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.
The rules in N.J.A.C. 13:44J have had a beneficial social impact. They elaborate on various provisions of the 2003 New Jersey Cemetery Act, N.J.S.A. 45:27-1 et seq., and thereby provide guidance to the cemetery industry and the public. The rules have an impact on cemetery companies, and those individuals who maintain them, people licensed as cemetery salespeople, those consumers who have purchased interment spaces and those who have interred loved ones in cemeteries in this State.
Subchapter 5 sets forth standards for operating cemeteries, ensuring that cemeteries are run in a manner that protects the interests of consumers. Subchapter 6 deals with requirements for documents a cemetery company must submit to the Board and with requirements for mapping the grounds of a cemetery, ensuring that the Board has sufficient knowledge of the workings of a cemetery company to adequately regulate the cemetery and that cemetery grounds are properly laid out. Subchapter 7 deals with memorials on interment spaces. The rules benefit society by ensuring that cemetery companies and consumers know their respective rights when either group wishes to memorialize an interment space. Subchapter 8 deals with interments of remains and protects society by ensuring that cemetery companies have standards to follow that protect the deceased's dignity when disinterring remains.
Subchapter 9 deals with cremains and protects society by ensuring that cremains, when shipped through the mail or by parcel service, are properly protected, so as to ensure the dignity of the deceased. Subchapter 10 deals with cemetery salespeople. This subchapter generally protects the public by ensuring that cemetery salespeople, who commonly visit the homes of consumers, are properly providing sales services for cemetery companies. Subchapter 11 deals with interment spaces or niches and requires that spaces with interments in them be nontransferable but allows the owners of unused interment spaces to sell them if they choose. This protects society by ensuring that the dignity of the deceased is preserved while ensuring that the rights of people who own property in a cemetery are protected.
Subchapter 13 sets forth standards that cemetery companies must meet when applying to the Board for a certificate of authority or permission to dissolve, merge, sell land, purchase land or lease land. This ensures that the Board has the information it needs to efficiently regulate the actions of cemetery companies and to protect the interests of consumers. Subchapter 14 requires prior Board approval for the bulk sale and resale of interment spaces or niches. This ensures that bulk purchases and sales will not be made for speculative purposes. The rules also require that, when a bulk sale or resale has been approved, procedures be in place that ensure that money will be deposited in the Maintenance and Preservation Fund for each interment space. This ensures that the cemetery will have sufficient funds for the upkeep of the cemetery. Subchapter 15 allows the Board to remove monumentation under certain circumstances, allowing for the removal of unsafe monumentation before it causes injury.
Some of the rules proposed for readoption will have an economic impact. N.J.A.C. 13:44J-3.1 sets forth the fees that the Board assesses for services rendered to cemetery companies and licensed salespeople. N.J.A.C. 13:44J-3.1 will continue to have an economic impact on licensees and applicants for licensure by establishing fees that will supply the minimum amount of money necessary for the Board to be self-funding; thus complying with N.J.S.A. 45:1-3.2.
N.J.A.C. 13:44J-5.2 requires a cemetery company to prepare a price list, which must be posted in the cemetery company's office and filed with the Board. The cost of preparing the price list and submitting it to the Board will continue to be borne by the cemetery company. N.J.A.C. 13:44J-5.3 and 5.4 set forth standards for trust funds that cemeteries are required to keep, in particular, the Maintenance and Preservation Fund. While purchasers of interment spaces are required to provide money for deposit into the Maintenance and Preservation Fund, the cemetery company is responsible for administering this fund and will continue to bear the costs of doing so. N.J.A.C. 13:44J-5.6 requires a cemetery company to submit a check for all charges due the Board and to file an annual report with the Board detailing the operation of the Maintenance and Preservation Fund. The cost of filing these documents, and paying all charges due the Board, will continue to be borne by the cemetery company. N.J.A.C. 13:44J-5.7 requires cemetery companies to follow certain procedures when they seek to reclaim interment spaces or niches. The cost of following these procedures will be borne by the cemetery company.
N.J.A.C. 13:44J-6.1 will continue to have an economic impact on cemetery companies. It requires them to file a copy of their rules and regulations with the Board and to pay fees if they wish to amend their rules and regulations. N.J.A.C. 13:44J-6.2 requires every cemetery company to maintain a map of the cemetery. The cost of drafting and amending this map will continue to be borne by the cemetery company. N.J.A.C. 13:44J-6.3 will continue to have an economic impact on cemetery companies that are required to negotiate with space owners, and provide them with a new space at the same cost of the old, if their space is plotted in a way that makes a path non-conforming. N.J.A.C. 13:44J-6.4 requires a cemetery company to obtain approval from the Department of Community Affairs and a building permit from the local construction official prior to constructing a public mausoleum. The cost of obtaining this approval and the building permit will continue to be borne by the cemetery company.
N.J.A.C. 13:44J-7.2 will continue to require a cemetery company to bear the cost of repairing a monument's foundation if the foundation sinks within 10 years of installation. If the foundation sinks any time after 10 years from installation the owner of the interment space bears the cost of repairing the foundation. N.J.A.C. 13:44J-8.1 requires a cemetery company to inform purchasers of a space in a non-titled niche that inurned remains may be removed with only the consent of the person who has the right of control over the remains. The cost of providing this notice is borne by cemetery companies. N.J.A.C. 13:44J-8.2 will continue to require that a disinterment order be obtained prior to disinterring remains in a multiple depth grave, so that the grave can be deepened in order to accommodate additional burials.
N.J.A.C. 13:44J-9.1 will continue to impose costs on a cemetery company in that it requires a cemetery company that wishes to ship cremated human remains to do so either by the U.S. Postal System or by a parcel service and requires that the cremated human remains be insured. N.J.A.C. 13:44J-10.2 requires an applicant for licensure as a cemetery salesperson to submit certain documents. The cost of preparing these documents, and submitting them to the Board, will continue to be borne by the applicant. The applicant is also responsible for the application and temporary license fee and the criminal history investigation fee set by the New Jersey State Police. The rule also requires the applicant to pay the initial license fee once the Board has approved the applicant for licensure. N.J.A.C. 13:44J-10.3 requires licensed cemetery salespeople to submit to the Board a completed renewal form, the renewal fee, a designation of agent form and a completed child support questionnaire when the licensee is renewing his or her license. The cost of preparing these documents, and submitting them to the Board, will continue to be borne by the licensee. N.J.A.C. 13:44J-10.5 requires applicants for cemetery salesperson branch licenses to pay a branch license fee and to apply for renewal of the branch license. The licensed cemetery salesperson will pay these fees and will bear the cost of applying for renewal.
N.J.A.C. 13:44J-11.3 requires every cemetery company to maintain records of transfers. The cost of maintaining these records will be borne by cemetery companies. N.J.A.C. 13:44J-13.1 requires applicants for certificates of authority to include specific information in the application. The cost of supplying this information is borne by the applicant. N.J.A.C. 13:44J-13.2 through 13.7 require a cemetery company to apply to the Board for approval prior to dissolution, merging, selling land, purchasing [page=381] land or leasing land. The cost of preparing the documents necessary for these applications will continue to be borne by the cemetery company. N.J.A.C. 13:44J-14.1 and 14.2 require cemetery companies, purchasers of interment spaces and niches through bulk sales and those who receive such spaces through transfers to make the contributions to the Maintenance and Preservation Fund required by N.J.S.A. 45:27-13. N.J.A.C. 13:44J-15.1 and 15.2 require cemetery companies to store memorials that have been removed for one year. The cost of storing these memorials will be borne by cemetery companies.
N.J.A.C. 13:44J-15.3 requires cemetery companies to apply to the Board for approval to remove memorials for renovations. Cemetery companies that have been granted approval are required to notify owners 30 days prior to removal. The costs of applying to the Board for approval and notifying owners are borne by the cemetery company.
Federal Standards Statement
A Federal standards analysis is not required because there are no Federal laws or standards applicable to the rules proposed for readoption.
The Board does not believe that the rules proposed for readoption will increase or decrease the number of jobs in New Jersey.
Agriculture Industry Impact
The Board does not believe that the rules proposed for readoption will have any impact on the agriculture industry of this State.
Regulatory Flexibility Analysis
The Board believes that the approximately 400 cemetery companies operating in New Jersey and the approximately 300 licensed cemetery salespeople could be deemed "small businesses" under the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq.
The costs imposed on small businesses by the rules proposed for readoption are the same costs that are imposed on all businesses as outlined in the Economic Impact above. The Board believes that cemetery companies may need to employ the professional services of a financial consultant in order to administer the trust funds they are required to maintain. The Board does not believe that cemetery companies will need to employ any other professional services to comply with the requirements of the rules proposed for readoption. The rules proposed for readoption impose compliance, reporting and recordkeeping requirements, as set forth in the Summary above.
As the compliance, reporting and recordkeeping requirements contained in the rules proposed for readoption are necessary to adequately regulate licensees and protect consumers who use their services, the Board believes that the rules must be uniformly applied to all cemetery companies and licensees and no exemptions are provided based on the size of the cemetery company or the licensee's business.
Smart Growth Impact
The Board does not anticipate that the rules proposed for readoption will have any impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan.
Housing Affordability Impact
The rules proposed for readoption will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the rules concern the regulation of cemetery companies and cemetery salespeople.
Smart Growth Development Impact
The rules proposed for readoption will have an insignificant impact on smart growth development and there is an extreme unlikelihood that the rules 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 rules concern the regulation of cemetery companies and cemetery salespeople.
Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:44J.