New Jersey Office of Administrative Law

ADMINISTRATIVE LAW

OFFICE OF ADMINISTRATIVE LAW

Rules for Agency Rulemaking

Procedure upon Adoption

Variance between the Rule as Proposed and as Adopted

Proposed Amendments: N.J.A.C. 1:30-6.2 and 6.3

Authorized By: Laura Sanders, Acting Director, Office of Administrative Law.

Authority: P.L. 2011, c. 33 and N.J.S.A. 52:14F-5(f).

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2012-029.

Submit comments by April 21, 2012 to:

Patricia Prunty, Assistant Director

Office of Administrative Law

Quakerbridge Plaza, Bldg. 9

P.O. Box 049

Quakerbridge Road

Trenton, NJ 08625-0049

The agency proposal follows:

Summary

P.L. 2011, c. 33 (N.J.S.A. 52:14B-4.10), enacted March 1, 2011, (“the Act”) established a process by which agencies desiring to make changes to a proposed rulemaking considered too substantial to make upon adoption (see N.J.A.C. 1:30-6.3(b)) could, as an alternative to issuing a new proposal incorporating the changes, publish a notice in the New Jersey Register detailing the changes desired, setting forth the basis for the changes, summarizing the public comments received on the provisions sought to be changed and the agency’s responses to the comments, and inviting public comment on the changes. N.J.A.C. 1:30-6.3 is proposed for amendment to incorporate this new process into the Office of Administrative Law (OAL) Rules for Agency Rulemaking.

Subsection (a) is proposed for amendment to refer to this new process as an alternative to publication of a new proposal. The timing of the decision on which option to select is clarified by changing the phrase “following the notice of proposal” to “upon the conclusion of the public comment period for a notice of proposal.” The current language concerning the new proposal option is revised to delete the language regarding the public opportunity to be heard, as that is implicit in the publication of a proposal, and to clarify that the new proposal would incorporate the substantial changes and supersede, in whole or in part, the previously published notice of proposal. As the Act defines “substantial changes,” that term replaces the language “changes . . . which are so substantial that the changes effectively destroy the value of the original notice” in the subsection.

In defining “substantial changes,” subsection 1a of the Act incorporated the three aspects of a contemplated change to be considered set forth in paragraphs (b)1, 2, and 3 of N.J.A.C. 1:30-6.3 and provided that, “‘substantial changes’ means any changes to a proposed rule that would significantly: enlarge or curtail who and what will be affected by the proposed rule; change what is being prescribed, proscribed or otherwise mandated by the rule; or enlarge or curtail the scope of the proposed rule and its burden on those affected by it.” N.J.A.C. 1:30-6.3(b) is proposed for amendment to conform to the Act’s definition of “substantial changes.”

Proposed new subsection (c) incorporates the requirements under subsection 1b and paragraph 1c(1) of the Act for the public notice concerning the substantial changes that will be published in the New Jersey Register. The public notice shall include: (1) a description of the changes between the rule as originally proposed and the new proposed changes; (2) the specific reasons for proposing the additional changes; (3) a discussion of how the new proposed changes would alter the impact statements and analyses included in the notice of proposal; (4) a report listing all parties submitting comments on the originally proposed rule provisions subject to the proposed additional changes, summarizing the content of the submissions on those provisions and providing the agency's response to the data, views and arguments contained in the submissions; and (5) the manner in which interested persons may present their views on the new proposed changes. As it is the rule text set forth in the notice of proposal that is the subject of the substantial changes, in order to ensure the clarity of the notice, the OAL proposes to add to the notice content requirements that the notice contain the text of the originally proposed rule subject to the proposed new changes specifically indicating the proposed additions and/or deletions of the proposed new changes. Proposed subsection (c) also establishes that such public notices shall be submitted to the OAL in accordance with the submission deadlines for notices of proposal established pursuant to N.J.A.C. 1:30-1.14.

Proposed new subsection (d) incorporates the requirements of paragraph 1c(2) of the Act regarding the notice requirements, in addition to New Jersey Register publication, and 60-day public comment period for the public notice. In addition, proposed subsection (d) reflects the requirements of subsection d of the Act, providing that the proposing agency may proceed with adoption of the proposal upon the conclusion of the public notice’s 60-day public comment period and setting forth the required content of the notice of adoption concerning the substantial changes that were the subject of the public notice. As part of the notice of adoption, the agency shall include an appropriately-headed section devoted to the substantial changes contained in the public notice, listing all parties submitting comments concerning the provisions of the proposed rule changes contained in the public notice, summarizing the content of the submissions that are related to the proposed rule changes contained in the public notice and providing the agency's response to the data, views and arguments contained in the relevant submissions.

Subsection 1e of the Act provides that a notice of proposal that includes a public notice concerning substantial changes shall expire 18 months after the publication date of the notice of proposal in the New Jersey Register. This expiration period represents a six-month extension of the one-year proposal expiration period set forth in N.J.A.C. 1:30-6.2(c). Proposed new subsection (e) incorporates this extended proposal expiration period. In addition, N.J.A.C. 1:30-6.2(c) is proposed for amendment to reflect this extended expiration period as codified in N.J.A.C. 1:30-6.3(e).

Current N.J.A.C. 1:30-6.3(c) is proposed to be recodified as subsection (f). The introductory paragraph in recodified subsection (f) is amended to reference the definition of “substantial changes” in subsection (b), as proposed for amendment. Recodified paragraph (f)2 is proposed for amendment to delete the correction of printing errors as a change upon adoption that is per se not substantial. As the change necessary to correct a printing error such as the misprinting of a proposed fee or the omission of lines of text may be “substantial” as defined in subsection (b) as proposed for amendment, such changes should be evaluated on an individual basis to determine whether they may be made upon adoption without addition notice and opportunity to comment. Recodified paragraph (f)3 is proposed for amendment to replace the term “minor substantive changes” with “changes,” as the balance of the paragraph provides, in essence, that changes not meeting the definition of “substantial changes” may be made upon adoption.

As the Office of Administrative Law (OAL) has provided a 60-day comment period for this notice of proposal, this notice is excepted from the rulemaking calendar requirements, pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The proposed amendments would incorporate into the OAL Rules on Agency Rulemaking the statutory requirements allowing an agency seeking to make substantial changes to a published notice of proposal after the receipt of public comment to publish a notice in the New Jersey Register to obtain public comment on the changes prior to the adoption of the proposal. The OAL does not anticipate any social impact from the proposed amendments beyond that which results from the statutory requirements. By enabling agencies to make substantial changes to a proposed rule through the publication of a notice soliciting public comment on such changes prior to the adoption of the proposed rule, rather than through publication of a new notice of proposal incorporating the changes, the efficiency of the rulemaking process would be enhanced. By using the notice process, agencies may be better able to realize their intended implementation schedule for a proposed rule. The statutory allowance of an 18-month expiration period for a proposal for which the notice of substantial changes processed is used, rather than the standard one-year proposal expiration period, should afford a proposing agency sufficient time to complete a rulemaking in which the notice of substantial change process is used. If the substantial changes included in the notice are adopted, their propriety as in accordance with the Administrative Procedure Act rulemaking process would be ensured. The public interest is served by the process providing for public comment on the proposed substantial changes.

Economic Impact

The proposed amendments would incorporate into the OAL Rules on Agency Rulemaking the statutory requirements allowing an agency seeking to make substantial changes to a published notice of proposal after the receipt of public comment to publish a notice in the New Jersey Register to obtain public comment on the changes prior to the adoption of the proposal. The OAL does not anticipate any economic impact from the proposed amendments beyond that which results from the statutory requirements. An agency using the notice of substantial changes process in the course of a rulemaking would incur the administrative and staff costs necessary to prepare the notice, and to respond to and incorporate the public comments received on the substantial changes into the notice of adoption of the proposal. However, the same or greater costs would have been incurred in using a new notice of proposal to effect the substantial changes to the original proposal. The use of the notice of substantial changes process may result in more timely implementation of the original proposal, with substantial changes, than going through a two-proposal process, thus giving sooner effect to the economic consequences of the proposal.

Federal Standards Statement

No Federal standards analysis is required because these amendments are not being proposed in order to implement, comply with, or participate in any program established under Federal law or under a State law that incorporates or refers to Federal law, standards, or requirements.

Jobs Impact

No jobs will be generated or lost as a result of the proposed amendments.

Agriculture Industry Impact

No impact on the agriculture industry is anticipated as a result of the proposed amendments.

Regulatory Flexibility Statement

The proposed amendments impose rulemaking process compliance requirements on State agencies. No compliance requirements are imposed on small businesses, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq.

Housing Affordability Impact Analysis

The proposed amendments would have an insignificant impact, if any, on the average costs associated with housing, as the amendments incorporate into the OAL Rules on Agency Rulemaking a statutory process for obtaining public comment on substantial changes to proposed rules and, thereby, being able to include those changes in the adoption of the proposed rules. While substantial changes to a proposed rule made using the process could affect the average costs associated with housing, such effect arises due to the changes made rather than the change process itself; the same effect would result if the agency used the new proposal process available prior to the Act.

Smart Growth Development Impact Analysis

The proposed amendments would have an insignificant impact, if any, on housing production within Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan, as the amendments incorporate into the OAL Rules on Agency Rulemaking a statutory process for obtaining public comment on substantial changes to proposed rules and, thereby, being able to include those changes in the adoption of the proposed rules. While substantial changes to a proposed rule made using the process could affect housing production, such effect arises due to the changes made rather than the change process itself; the same effect would result if the agency used the new proposal process available prior to the Act.

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

1:30-6.2 Time for filing notice of adoption

(a) – (b) (No change.)

(c) If a proposal has not been adopted and filed with the OAL within one year from the date the notice of proposal was published in the New Jersey Register, or within 18 months of such date in accordance with N.J.A.C. 1:30-6.3(e), the proposal expires. Before the proposed rule amendment, repeal or readoption can be adopted, the agency must resubmit the notice of proposal for publication in the Register and must comply again with the notice and opportunity to be heard requirements of the Act.

1:30-6.3 Variance between the rule as proposed and as adopted

(a) Where, [following the] upon the conclusion of the public comment period for a notice of proposal, an agency determines to make substantial changes [in] to the proposed rule [which are so substantial that the changes effectively destroy the value of the original notice], the agency shall [give] either:

1. Publish a new notice of proposal [and public opportunity to be heard.] that incorporates the substantial changes and supersedes, entirely or in part, the previously published notice of proposal; or

2. Utilize the process set forth in (c) below to permit public consideration of and comment on the changes before adoption of the notice of proposal.

(b) [In determining whether the changes in the proposed rule are so substantial, consideration shall be given to the extent that the changes] As used in this section, “substantial changes” means any changes to a proposed rule that would significantly:

1. Enlarge or curtail who and what will be affected by the proposed rule;

2. Change what is being prescribed, proscribed or otherwise mandated by the rule; or

3. Enlarge or curtail the scope of the proposed rule and its burden on those affected by it.

(c) Upon making a determination that it would be appropriate to make substantial changes to a proposed rule upon adoption, an agency may submit a public notice setting forth the proposed changes to the Office of Administrative Law for publication in the New Jersey Register. The public notice shall be submitted to the Office of Administrative Law in accordance with the submission deadlines for notices of proposal established pursuant to N.J.A.C. 1:30-1.14. The public notice shall include:

1. A description of the changes between the rule as originally proposed and the new proposed changes;

2. The specific reasons for proposing the additional changes;

3. A discussion of how the new proposed changes would alter the impact statements and analyses included in the notice of proposal;

4. A report listing all parties submitting comments on the originally proposed rule provisions subject to the proposed additional changes, summarizing the content of the submissions on those provisions and providing the agency's response to the data, views, and arguments contained in the submissions;

5. The manner in which interested persons may present their views on the new proposed changes; and

6. The text of the originally proposed rule subject to the new proposed changes specifically indicating the proposed additions and/or deletions of the new proposed changes.

(d) An agency submitting a public notice under (c) above shall comply with the requirements for notice, in addition to publication in the New Jersey Register, set forth in N.J.A.C. 1:30-5.2(a)3 through 6. Such agency shall also provide a comment period of 60 days from the date the public notice is published in the New Jersey Register in which interested parties may present their views on the new proposed changes. Upon the conclusion of the 60-day public comment period, the agency may proceed with a notice of adoption in accordance with the provisions of N.J.A.C. 1:30-6. As part of the notice of adoption, the agency shall include an appropriately-headed section devoted to the substantial changes contained in the public notice, listing all parties submitting comments concerning the provisions of the proposed rule changes contained in the public notice, summarizing the content of the submissions that are related to the proposed rule changes contained in the public notice, and providing the agency's response to the data, views, and arguments contained in the relevant submissions.

(e) A notice of proposal that includes a public notice pursuant to (c) and (d) above shall expire 18 months after the date of publication of the notice of proposal in the New Jersey Register.

[(c)] (f) Where the changes between the rule as proposed and as adopted are not substantial as defined in (b) above, the changes shall not prevent the adopted rule from being accepted for filing. Changes which are not substantial include:

1. Spelling, punctuation, technical, and grammatical corrections;

2. Language or other changes, whose purpose and effect is to clarify the proposal [or correct printing errors]; and

3. [Minor substantive changes which] Changes that do not significantly enlarge or curtail the scope of the rule and its burden, enlarge or curtail who or what will be affected by the rule, or change what is being prescribed, proscribed, or mandated by the rule.

ADMINISTRATIVE LAW

OFFICE OF ADMINISTRATIVE LAW

Rules for Agency Rulemaking

Rule Expiration; Chapter Readoption

Proposed Amendment: N.J.A.C. 1:30-6.4

Authorized By: Laura Sanders, Acting Director, Office of Administrative Law.

Authority: P.L. 2011, c. 45 and N.J.S.A. 52:14F-5(f).

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2012-030.

Submit comments by April 21, 2012 to:

Patricia Prunty, Assistant Director

Office of Administrative Law

Quakerbridge Plaza, Bldg. 9

P.O. Box 049

Quakerbridge Road

Trenton, NJ 08625-0049

The agency proposal follows:

Summary

P.L. 2011, c. 45, enacted April 6, 2011, (“the Act”) amended N.J.S.A. 52:14B-5.1 to extend by two years the expiration date of nearly all chapters in the New Jersey Administrative Code; to increase the maximum expiration (or “sunset”) period for a new or readopted chapter from five years to seven years; to create a process whereby a chapter may be readopted without change or with technical changes through the timely submission to the Office of Administrative Law (OAL) and publication of a notice of readoption in the New Jersey Register; and to permit the Governor, upon the timely request of an agency head, to restore the effectiveness of an expired rule for a specified period, in order to effect the readoption of the rule. The purpose of the proposed amendments to N.J.A.C. 1:30-6.4 is to incorporate these statutory changes into the OAL Rules for Agency Rulemaking.

N.J.A.C. 1:30-6.4(a) and (b) are proposed for amendment to reflect the extension of a new or readopted chapter’s maximum expiration period from five to seven years. As a statute authorizing a specific rule promulgation may provide a specific duration for the rule’s effectiveness, language is added to subsection (a) to recognize that an expiration date sooner or later than seven years may be required by statute. In addition, the first sentence of subsection (a), which sets forth the requirements of former N.J.S.A. 52:14B-5.1a (deleted by the Act), is proposed for deletion, and the third sentence of subsection (a) is proposed for deletion as no longer necessary, as it addressed the expiration dates for chapters first effective between January 17, 2001 and June 30, 2001.

New subsection (e) is proposed to mirror N.J.S.A. 52:14B-5.1d(2), providing that the Governor may, upon the request of an agency head within five days after the expiration of a rule, restore the effectiveness of an expired rule as of its expiration date, for a period to be specified by the Governor, in order to effect the readoption of the rule in accordance with N.J.A.C. 1:30-6.4(g) through (i) (which reflect the provisions of N.J.S.A. 52:14B-5.1c referenced in N.J.S.A. 52:14B-5.1d(2)).

N.J.A.C. 1:30-6.4(f) (proposed for recodification as (g)) is proposed for amendment to reference the new notice of readoption process as a basis for maintaining a chapter’s effectiveness and to provide that amendments to rules readopted through the notice of readoption process are effective upon publication of the notice.

Proposed new subsection (h) incorporates the notice of readoption process created under N.J.S.A. 52:14B-5.1c(1). The new subsection provides that, in the case of a readoption without changes to the existing chapter, or a readoption with technical changes as approved by the Office of Administrative Law, an agency may continue in effect an expiring chapter for a seven-year period by filing a public notice (referred to as a “notice of readoption” within the subsection) with the Office of Administrative Law for publication in the New Jersey Register at least 30 days prior to the expiration date of the chapter. The OAL is proposing language to make clear that, if notice of readoption is filed with the Office of Administrative Law less than 30 days prior to the chapter expiration date, the notice will not be published and the filing of the notice will not change the chapter expiration date. In order to readopt the chapter that was the subject of such notice, the readoption of the chapter must be proposed and adopted in accordance with N.J.A.C. 1:30-6.4(g). Subsection (h) specifies that the notice of readoption shall include the citation for the chapter; a general description of the chapter; the specific legal authority under which the chapter is authorized; the name and title of the individual, or the name of the entity, authorizing the readoption; the effective date of the readoption; and the new expiration date of the chapter. N.J.S.A. 52:14B-5.1c(1) does not specify that the notice of readoption include the authorizing individual or entity or the effective date of the readoption; however, since the readoption of a chapter is a rulemaking action that must be properly authorized and the effective date of the readoption will be the starting date for the chapter’s new expiration period, the OAL considers it appropriate for the notice to set forth such information. The notice of readoption shall be effective upon filing with the Office of Administrative Law, and the new chapter expiration date shall be calculated from the date of filing of the notice of readoption. As used in subsection (h), "technical amendments" means amendments to: correct spelling, grammar and punctuation; correct codification; update contact information; or correct cross-references.

Upon considering the possible use of the notice of readoption process in order to readopt a chapter for which a notice of proposed readoption was published but not yet adopted, the OAL concluded that, as the agency proposing the readoption had invited public comment on the subject chapter and the commenting public would have justly anticipated substantive agency responses to its comments under the rulemaking process, it would be inequitable and unfair to the commenting public, and not in keeping with the open rulemaking process under the Administrative Procedure Act, for an agency not to respond to the public comments through use of the notice of readoption process. On this basis, the OAL proposes N.J.A.C. 1:30-6.4(h)1, providing that, in the case of a published notice of proposed readoption of a chapter, with or without amendments, that has not been adopted by the promulgating agency, the notice of readoption process shall not be used by the promulgating agency to supersede the notice of proposed readoption, or the readoption portion of a notice of proposed readoption with amendments. In order to readopt the chapter subject to the notice of proposed readoption, with or without amendments, the promulgating agency shall submit a notice of adoption of the proposed readoption to the Office of Administrative Law for publication in the New Jersey Register prior to the chapter’s expiration.

A number of legislative acts provide that, notwithstanding the provisions of the Administrative Procedure Act, an agency may promulgate rules to effectuate the act, which rules shall be effective upon filing with the Office of Administrative Law for a period specified in the act. Thereafter, the rules may be readopted by the agency, so as to give them permanent effect, in accordance with the Administrative Procedure Act. See, for example, N.J.S.A. 40A:11-9.i and 52:27D-489n. If an agency used the notice of readoption process under N.J.S.A. 52:14B-5.1c(1) to permanently adopt such effective-upon-filing rules, the result would be that the rules could be effective for up to seven years plus the initial statutory period, or even longer with successive uses of the notice of readoption process, without ever being subjected to public comment. The Office of Administrative Law considers that use of the notice of readoption process to permanently continue such rules beyond the initial statutory period would be contrary to the legislative intent implicit in providing for readoption after that period, that the rules be then subject to public comment. Therefore, the Office of Administrative Law is proposing, at N.J.A.C. 1:30-6.4(h)2, that the notice of readoption process cannot be used in place of proposal and adoption of the rule’s or amendment’s initial readoption, in accordance with N.J.A.C. 1:30-6.4(g) as proposed, to give the rule or amendment effect beyond the statutory time period.

Proposed new subsection (i) incorporates the requirements of N.J.S.A. 52:14B-5.1c(2), providing that, in the case of a proposed readoption of an expiring chapter with substantive amendments, an agency may continue the expiring chapter for a seven-year period by duly proposing the readoption with substantive amendments and readopting the chapter prior to its expiration. As used in subsection (i), "substantive amendments" means any amendments that are not technical amendments as defined in N.J.A.C. 1:30-6.4(h).

Current N.J.A.C. 1:30-6.4(g) (proposed for recodification as subsection (j)) is proposed for amendment to update a cross-reference to reflect the section’s proposed subsection codification.

Social Impact

The OAL does not anticipate any social impact from the proposed amendments beyond that which results from the statutory requirements. Annually, between 700 and 800 notices of proposal and adoption are published in the New Jersey Register; on average over the past 10 years, one-third of these notices involve the readoption of Code chapters. Approximately 20 percent of the readoption proposals published annually during that 10-year period did not include any amendments to the current chapter text, and, on average, 70 percent of those proposals were adopted without any public comments being received.

The OAL anticipates that the extension of the chapter expiration period from five years to seven years and the new notice of readoption process for chapter readoption without change or with technical changes will reduce the number of readoption-related notices of proposal and adoption published annually. The extended expiration period means that such notices need be published less frequently, and the notice of readoption process will provide agencies seeking to readopt a chapter without change or with technical changes a single-notice alternative to the proposal and adoption readoption process. The process for the continuation of existing rules will be more efficient, and agencies, including the OAL in its role as reviewer of rulemaking notices for New Jersey Register publication, will be able to reallocate staff resources that would have been involved in readopting chapters through proposal and adoption to other purposes.

In those instances in which an agency chooses to use the notice of readoption process to readopt a chapter without change or with technical changes, the public would not have the opportunity for comment on the subject chapter that would have been afforded under the proposal and adoption process. However, as noted above, no public comments were received on a substantial majority of notices of proposed readoption without change. The technical changes to rules permitted under the notice of readoption process have, historically, given rise to little, if any, public comment. In lieu of submitting a comment on current rule text proposed for readoption, persons interested in asking an agency to revise a rule could use the petition for rulemaking process under N.J.S.A. 52:14B-4(f) (see also N.J.A.C. 1:30-4). The proposed amendment at N.J.A.C. 1:30-6.4(h)1 not permitting the notice of readoption process to be used where a notice of proposed readoption of the chapter is pending will have a positive social impact in that the reasonable expectation of those submitting comments on the current rules through the proposal to receive substantive responses will be fulfilled. The proposed amendment at N.J.A.C. 1:30-6.4(h)2 not permitting the notice of readoption process to be used for the initial readoption of rules that were, pursuant to specific statutory authority, effective upon filing for a specific period prescribed by statute will have a positive social impact by fulfilling the legislative intent implicit in such statutory authorizations that such rules be subject to public comment before being continued beyond the prescribed period.

Proposed new N.J.A.C. 1:30-4.3(e) should have a positive social impact as it provides an opportunity to restore the effectiveness of a chapter that the promulgating agency did not intend to expire.

Economic Impact

The OAL does not anticipate any economic impact from the proposed amendments beyond that which results from the statutory requirements. The extended expiration period will reduce the frequency of readoption rulemakings and the notice of readoption process will permit State agencies to readopt rule chapters without change or with technical changes through the publication of a single notice in the New Jersey Register, rather than through the rulemaking process. State agency staff time and resources that would otherwise have been devoted to the process of readoption through proposal and adoption can be allocated elsewhere. The new provision allowing the Governor to restore an expired chapter in order for it to be readopted would serve to avoid the consequences, economic and otherwise, of the chapter’s expiration. Federal Standards Statement

Jobs Impact

No jobs will be generated or lost as a result of the proposed amendments.

Agriculture Industry Impact

No impact on the agriculture industry is anticipated as a result of the proposed amendments.

Regulatory Flexibility Statement

Housing Affordability Impact Analysis

The proposed amendments would have an insignificant impact, if any, on the average costs associated with housing, as the amendments incorporate into the OAL Rules on Agency Rulemaking statutory provisions: extending the expiration period for rules; providing a process for readopting rules without change or with technical changes through the publication of a single notice in the New Jersey Register; and permitting the Governor, upon the timely request of an agency head, to restore the effectiveness of an expired rule for a specified period, in order to effect the readoption of the rule.

Smart Growth Development Impact Analysis

The proposed amendments would have an insignificant impact, if any, on housing production within Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan, as the amendments incorporate into the OAL Rules on Agency Rulemaking statutory provisions: extending the expiration period for rules; providing a process for readopting rules without change or with technical changes through the publication of a single notice in the New Jersey Register; and permitting the Governor, upon the timely request of an agency head, to restore the effectiveness of an expired rule for a specified period, in order to effect the readoption of the rule.

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

1:30-6.4 Expiration date for adopted rule

(a) [Every chapter in the Administrative Code in effect as of January 16, 2001 shall expire on July 1, 2006, unless a different expiration date has been established for the chapter in accordance with (f) below or no expiration date is required pursuant to (c) below.] Every [chapter] adopted or readopted [on or after July 1, 2001] chapter in the New Jersey Administrative Code shall expire [five] seven years after the chapter's original or readoption effective date, unless a sooner expiration date is established in accordance with [(f)] (g) below[,]; a sooner or later expiration date is required pursuant to the statute authorizing the chapter; or no expiration date is required pursuant to (c) below. [Every chapter first effective from January 17, 2001 through June 30, 2001 shall, pursuant to Executive Order No. 66(1978), expire five years after the chapter's effective date, unless a sooner expiration date is established for the chapter or the chapter is readopted in accordance with (f) below, or no expiration date is required under that Executive Order.] All notices of adoption filed with the OAL shall include the expiration date(s) of the rules affected by the adoption.

(b) Expiration dates shall be fixed at the chapter level. An adopted new chapter shall have an expiration date no more than [five] seven years from the chapter's effective date.

(e) The Governor may, upon the request of an agency head within five days after the expiration of a rule, restore the effectiveness of an expired rule as of its expiration date, for a period to be specified by the Governor, in order to effect the readoption of the rule in accordance with (g) through (i) below.

[(e)] (f) (No change in text.)

[(f)] (g) In order to maintain the effectiveness of a chapter of rules, the rules must be duly proposed for readoption, adopted, and filed on or before the chapter expiration date, or readopted through the notice of readoption process set forth in (h) below. Upon the filing of a notice of proposed readoption, the expiration date of the subject chapter shall be extended for 180 days, if such notice is filed with the Office of Administrative Law on or before the chapter expiration date. If the chapter expiration date falls on a Saturday, Sunday, or legal holiday, the 180-day expiration date extension shall take effect if the filing of the notice of proposed readoption occurs no later than the next business day after the expiration date. The readopted rules are effective upon filing with the Office of Administrative Law.

1. (No change.)

2. Any amendments to readopted rules are effective upon publication of [the] either:

i. The notice of adoption of a proposed readoption; or

ii. A notice of readoption in accordance with (h) below.

(h) In the case of a readoption without changes to the existing chapter, or a readoption with technical changes as approved by the Office of Administrative Law, an agency may continue in effect an expiring chapter for a seven-year period by filing a public notice (hereinafter, “a notice of readoption”) with the Office of Administrative Law for publication in the New Jersey Register at least 30 days prior to the expiration date of the chapter. If a notice of readoption is filed with the Office of Administrative Law less than 30 days prior to the chapter expiration date, the notice will not be published and the filing of the notice will not change the chapter expiration date; in order to readopt the chapter that was the subject of such notice, the readoption of the chapter must be proposed and adopted in accordance with (g) above. The notice of readoption shall include the citation for the chapter; a general description of the chapter; the specific legal authority under which the chapter is authorized; the name and title of the individual, or the name of the entity, authorizing the readoption; the effective date of the readoption; and the new expiration date of the chapter. The notice of readoption shall be effective upon filing with the Office of Administrative Law, and the new chapter expiration date shall be calculated from the date of filing of the notice of readoption. As used in this subsection, "technical amendments" means amendments to: correct spelling, grammar, and punctuation; correct codification; update contact information; or correct cross-references.

1. In the case of a published notice of proposed readoption of a chapter, with or without amendments, that has not been adopted by the promulgating agency, the notice of readoption process set forth in this subsection shall not be used by the promulgating agency to supersede the notice of proposed readoption, or the readoption portion of a notice of proposed readoption with amendments. In order to readopt the chapter subject to the notice of proposed readoption, with or without amendments, the promulgating agency shall submit a notice of adoption of the proposed readoption to the Office of Administrative Law for publication in the New Jersey Register prior to the chapter’s expiration.

2. In the case of a rule or amendment that, pursuant to specific statutory authority, was adopted without proposal and became effective upon submission to the Office of Administrative Law for a period of time set forth in the authorizing statute, and for which the authorizing statute prescribes that continuation of the rule or amendment beyond the time period shall be accomplished through readoption, the notice of readoption process set forth in this subsection shall not be used by the promulgating agency in place of proposal and adoption of the rule’s or amendment’s initial readoption, in accordance with (g) above, to give the rule or amendment effect beyond the statutory time period.

(i) In the case of a proposed readoption of an expiring chapter with substantive amendments, an agency may continue the expiring chapter for a seven-year period by duly proposing the readoption with substantive amendments and readopting the chapter prior to its expiration. As used in this subsection, "substantive amendments" means any amendments that are not technical amendments as defined in (h) above.

[(g)] (j) Any readoption of rules which is proposed and could be adopted prior to their expiration date under [(f)] (g) and (i) above, but is not filed for adoption with the OAL until after the rules' expiration date, shall be considered new rules which are effective upon publication of the notice of adoption in the Register. The new expiration date shall be calculated from the date of publication.

[(h)] (k) (No change in text.)

ADMINISTRATIVE LAW

OFFICE OF ADMINISTRATIVE LAW

Rules for Agency Rulemaking

Proposal Procedure

Notice of Proposed Rule

Housing Affordability Impact Analysis; Smart Growth Development Impact

Analysis; Smart Growth Impact

Proposed Amendment: N.J.A.C. 1:30-5.1

Authorized By: Laura Sanders, Acting Director, Office of Administrative Law.

Authority: N.J.S.A. 52:14B-4.1b and 52:14F-5(f); Executive Order No. 78 (2011).

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2012-031.

Submit comments by April 21, 2012 to:

Patricia Prunty, Assistant Director

Office of Administrative Law

Quakerbridge Plaza, Bldg. 9

P.O. Box 049

Quakerbridge Road

Trenton, NJ 08625-0049

The agency proposal follows:

Summary

Effective January 31, 2002, Governor McGreevey issued Executive Order No. 4 (2002), which created the Smart Growth Policy Council and required, in numbered paragraph 6, each notice of proposed rulemaking to include a smart growth impact statement describing the impact of the proposed rule on the achievement of smart growth and implementation of the State Development and Redevelopment Plan. This requirement for notices of proposal to contain a smart growth impact statement was incorporated into the OAL’s Rules for Agency Rulemaking at paragraph (c)8 of N.J.A.C. 1:30-5.1, Notice of proposed rule. See 34 N.J.R. 1074(a) and 2027(a).

P.L. 2008, c. 46, enacted July 17, 2008, at Sections 3 and 31 (amending N.J.S.A. 52:14B-4 and creating N.J.S.A. 52:14B-4.1b, respectively) revised the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., to require State agencies to include in rulemaking notices of proposal a housing affordability impact analysis and a smart growth development impact analysis. That particular smart growth analysis requirement was limited to housing-related rulemaking. The statutory requirements for these proposal statements are proposed to be added to N.J.A.C. 1:30-5.1.

Under proposed new N.J.A.C. 1:30-5.1(c)8, a notice of proposal shall include a housing affordability impact analysis, which shall contain a description of the types and an estimate of the number of housing units to which the proposed rule will apply, and a description of the estimated increase or decrease in the average cost of housing that will be affected by the proposed rule. These requirements for the content of the analysis shall not apply to any proposed rule that the proposing agency finds would impose an insignificant impact, either because the scope of the rule is minimal, or there is an extreme unlikelihood that the rule would evoke a change in the average costs associated with housing. The proposing agency's finding in this regard and an indication of the basis for its finding shall be included in the analysis.

Under proposed new N.J.A.C. 1:30-5.1(c)9, a notice of proposal shall include a smart growth development impact analysis, which shall contain a description of the types and an estimate of the number of housing units to which the proposed rule will apply, a description of the estimated increase or decrease in the availability of affordable housing that will be affected by the proposed rule, and a description as to whether the proposed rule will affect in any manner new construction within Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan. These requirements for the content of the analysis shall not apply to any proposed rule that the proposing agency finds would impose an insignificant impact, either because the scope of the rule is minimal, or there is an extreme unlikelihood that the rule would evoke a change in the housing production within Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan (State Plan). The proposing agency's finding in this regard and an indication of the basis for its finding shall be included in the analysis.

On October 19, 2011, Governor Christie issued Executive Order No. 78 (2011), which created the State Strategic Plan Steering Committee to ensure that State departments and agencies incorporate the goals, objectives, and values of a new State Planning Commission adopted State Development and Redevelopment Plan into Department Strategic Plans. Numbered paragraph 4 of that Executive Order rescinded Executive Order No. 4 (2002). With the rescission of Executive Order No. 4 (2002), the smart growth impact statement requirement is eliminated; therefore, current N.J.A.C. 1:30-5.1(c)8 is proposed for deletion. The result of the various proposed changes is that only housing-related proposals will still require a smart growth-related impact statement.

Social Impact

The proposed amendments adding new N.J.A.C. 1:30-5.1(c)8 and 9 would incorporate the statutory requirements for the inclusion of a housing affordability impact analysis and a smart growth development impact analysis into the OAL rule concerning the content of a notice of proposal. The OAL does not anticipate any social impact from these proposed amendments beyond that which results from the statutory requirements. The requirements should serve to advise the public of the types and an estimate of the number of housing units to which a proposed rule will apply and provide descriptions of: the estimated increase or decrease in the average cost of housing that will be affected by a proposed rule; the estimated increase or decrease in the availability of affordable housing that will be affected by the proposed rule; and whether a proposed rule will affect in any manner new construction within Planning Areas 1 or 2, or within designated centers, under the State Plan. Such information may serve to improve the public’s understanding of the effects of a proposed rule, and permit better informed and more effective comment on such rule in the rulemaking process.

The deletion of current N.J.A.C. 1:30-5.1(c)8 requiring a notice of proposal to include a smart growth impact statement reflects the rescission of Executive Order No. 4 (2002) that created the requirement for the statement. The OAL does not anticipate any social impact from this proposed amendment beyond that which results from Executive Order No. 78 (2011). The State Strategic Plan Steering Committee (Steering Committee) created under Executive Order No. 78 (2011) is “to work closely with the [State Planning Commission and the Office for Planning Advocacy] to ensure that relevant State departments and agencies incorporate the goals, objectives, and values of a new [State Planning Commission] adopted State [Development and Redevelopment] Plan into Department Strategic Plans, as [discussed in the Executive Order], and relevant regulations, programs, policies, and operations.” Each Steering Committee member shall identify a liaison that shall, on behalf of his or her department, among other responsibilities, work closely with the Steering Committee and the Office of Planning Advocacy, prior to the adoption, amendment or repeal of any rule, to assess the impact of the proposed rule on the goals and principles of a new State Plan.

Economic Impact

Federal Standards Statement

Jobs Impact

No jobs will be generated or lost as a result of the proposed amendments.

Agriculture Industry Impact

No impact on the agriculture industry is anticipated as a result of the proposed amendments.

Regulatory Flexibility Statement

Housing Affordability Impact Analysis

The proposal analyses required by statute and under the proposed amendments at N.J.A.C. 1:30-5.1(c)8 and 9 may have an impact on the average cost of housing. Providing the public with descriptions of the estimated increase or decrease in the average cost of housing and of availability of affordable housing that will be affected by a proposed rule may result in more effective public comment on this aspect of the proposed rule’s impact. Such public comment may persuade a proposing agency to reconsider the proposed rule and to revise the rule so as to alter the affordable housing impact of concern to the commenters.

Smart Growth Development Impact

As discussed in the Housing Affordability Impact above, the proposal analyses required by statute and under the proposed amendments to N.J.A.C. 1:30-5.1(c)8 and 9 may have an impact on the availability of affordable housing. Similarly, in describing whether a proposed rule affects new construction within Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan, the required smart growth development impact statement may result in more effective public comment on this aspect of the proposed rule’s impact. Such public comment may persuade a proposing agency to reconsider the proposed rule and to revise the rule so as to alter its impact on such new construction of concern to the commenters.

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

1:30-5.1 Notice of proposed rule

(a) – (b) (No change.)

(c) The notice of proposed rule shall include a brief statement of the proposed rulemaking, which shall include, in the following order:

1. – 6. (No change.)

7. A regulatory flexibility statement or analysis:

i. – v. (No change.)

vi. The regulatory flexibility analysis in (c)7iv and v above shall be required whenever small businesses comprise part of, or the entire, regulated group on which reporting, recordkeeping or other compliance requirements are imposed; [and]

[8. A smart growth impact statement which shall describe the impact of the proposed rule on the achievement of smart growth and implementation of the State Development and Redevelopment Plan.]

8. A housing affordability impact analysis that contains a description of the types and an estimate of the number of housing units to which the proposed rule will apply, and a description of the estimated increase or decrease in the average cost of housing that will be affected by the proposed rule. As used in this paragraph, “types” means housing groups distinguished by the following categories: housing reserved for occupancy by very low, low and moderate and middle income households, respectively; single family, two-family, and multi-family housing; and rental housing and for-sale housing.

i. A housing affordability impact analysis shall not include the descriptions required under (c)8 above if the proposing agency finds that the proposed rule would impose an insignificant impact, either because the scope of the rule is minimal, or there is an extreme unlikelihood that the rule would evoke a change in the average costs associated with housing. The agency's finding and an indication of the basis for its finding shall be included in the housing affordability impact analysis; and

9. A smart growth development impact analysis that contains a description of the types and an estimate of the number of housing units to which the proposed rule will apply, a description of the estimated increase or decrease in the availability of affordable housing that will be affected by the proposed rule, and a description as to whether the proposed rule will affect in any manner new construction within Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan. As used in this paragraph, “types” means housing groups distinguished by the following categories: housing reserved for occupancy by very low, low and moderate and middle income households, respectively; single family, two-family, and multi-family housing; and rental housing and for-sale housing.

i. A smart growth development impact analysis shall not include the descriptions required under (c)9 above if the proposing agency finds that the proposed rule would impose an insignificant impact, either because the scope of the rule is minimal, or there is an extreme unlikelihood that the rule would evoke a change in the housing production within Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan. The agency's finding and an indication of the basis for its finding shall be included in the smart growth development impact analysis.

(d) (No change.)

ADMINISTRATIVE LAW

OFFICE OF ADMINISTRATIVE LAW

Uniform Administrative Procedure Rules

Filing; Copies

Proposed Amendment: N.J.A.C. 1:1-7.3

Authorized By: Laura Sanders, Acting Director, Office of Administrative Law.

Authority: N.J.S.A. 52:14F-5.e, f, and g.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2012-045.

Submit comments by May 4, 2012 to:

Patricia Prunty, Assistant Director

Office of Administrative Law

Quakerbridge Plaza, Bldg. 9

P.O. Box 049

Quakerbridge Road

Trenton, New Jersey 08625

The agency proposal follows:

Summary

The Uniform Administrative Procedure Rules of the Office of Administrative Law (OAL) currently provide that any paper filed with the OAL be in duplicate. Since the Office of Administrative Law no longer maintains an office file, only one copy of any paper filed with the OAL is necessary. The Office of Administrative Law is now simply disposing of any duplicate copies which are filed. Therefore, the proposed amendment to N.J.A.C. 1:1-7.3(c) provides that only one copy of any filed paper is necessary. The proposed amendment retains a provision that provides that a filer who wishes a date-stamped filed copy for their records shall submit one additional copy of the documents along with a self-addressed, stamped envelope.

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

Social Impact

The proposed amendment no longer requires parties to file unnecessary additional copies of documents.

Economic Impact

The proposed amendment reduces the number of documents to be filed and therefore should result in a minimal cost saving to the parties. The Office of Administrative Law will no longer have to dispose of unneeded additional filings.

Federal Standards Statement

A Federal standards analysis is not required because the contested case hearing procedures, of which the proposed amendment is a part, are promulgated in implementation of the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and 52:14F-1 et seq., and are not subject to any Federal standards or requirements.

Jobs Impact

The proposed amendment will not generate or cause the loss of any jobs.

Agriculture Industry Impact

The proposed amendment will not impact on the agriculture industry.

Regulatory Flexibility Statement

The proposed amendment does not impose any reporting, recordkeeping, or compliance requirements on small businesses, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. Therefore, a regulatory flexibility statement is not required. The proposed amendment reduces the burden on all parties by reducing the number of documents required to be filed.

Housing Affordability Impact Analysis

The proposed amendment will have no impact on housing affordability in this State. The Uniform Administrative Procedure Rules set forth procedures for contested case hearings.

Smart Growth Development Impact Analysis

The proposed amendment will have no impact on the number of housing units or the availability of affordable housing in the State, and will have no effect on housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan. The Uniform Administrative Procedure Rules set forth procedures for contested case hearings.

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

1:1-7.3 Filing; copies

(a) – (b) (No change.)

(c) [All papers filed with the Office of Administrative Law shall be in duplicate.] The filer shall submit the original of all papers with the Office of Administrative Law. If the filer submits an additional copy of the paper to be filed with a self-addressed, stamped envelope, the Clerk or judge will return the paper to the filer marked with the date of filing. No additional copies of any paper shall be filed.

(d) (No change.)