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NEW JERSEY REGISTER
VOLUME 39, ISSUE 21
ISSUE DATE: NOVEMBER 5, 2007
RULE PROPOSALS

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY CEMETERY BOARD
Reclamation of Interment Spaces or Niches Owned By Membership or
Religious Corporations, Societies or Unincorporated Associations

Proposed Amendments: N.J.A.C. 13:44J-3.1, 14.1 and 14.2
Proposed New Rule: N.J.A.C. 13:44J-14.4

Reclamation of Interment Spaces or Niches Owned By Membership or Religious Corporations, Societies or Unincorporated Associations

Authorized By: New Jersey Cemetery Board, Dianne Tamaroglio, Executive Director.
Authority: N.J.S.A. 45:27-4 and 45:27-32.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2007-334.

Submit comments by January 8, 2008 to:

Dianne Tamaroglio, Executive Director New Jersey Cemetery Board
PO Box 45031
Newark, NJ 07101

The agency proposal follows:

Summary

Pursuant to its rulemaking authority in N.J.S.A. 45:27-4 and the provisions of N.J.S.A. 45:27-32, the New Jersey Cemetery Board (the Board) proposes amendments to N.J.A.C. 13:44J-3.1, 14.1 and 14.2 and new rule N.J.A.C. 13:44J-14.4. N.J.S.A. 45:27-32 generally prohibits the purchase of interment spaces for the purpose of reselling them, but permits membership or religious corporations, societies or unincorporated associations to do so as long as these organizations only resell the interment spaces to their members. The law authorizes a cemetery company to reclaim any unoccupied interment spaces sold to these organizations if they violate the requirements imposed by N.J.S.A. 45:27-32. This proposal outlines the procedures cemetery companies must follow if they wish to reclaim interment spaces pursuant to N.J.S.A. 45:27-32. This proposal also addresses procedures that must be followed if a cemetery company wishes to reclaim niches that were purchased with the intent to resell. While N.J.S.A. 45:27-32 does not address the purchase of niches with the purpose of reselling, N.J.S.A. 45:27-32(b)5 does refer to maintenance and preservation fund contributions required by N.J.S.A. 45:27-13, which includes contributions required upon the transfer of niches. The Board believes that the Legislature intended to permit the reclamation of interment spaces and niches from membership or religious corporations, societies or unincorporated associations which do not make the required contributions, even though niches are not specifically addressed in the act. N.J.A.C. 13:44J-3.1 sets forth the fees the Board charges. The Board proposes to amend this rule to include a new application fee for approval to reclaim interment spaces or niches owned by membership or religious corporations, societies or unincorporated associations. N.J.A.C. 13:44J-14.1 sets forth requirements that cemetery companies and membership or religious corporations, societies or unincorporated associations must follow when the cemetery company sells interment spaces or niches to such organizations. N.J.A.C. 13:44J-14.2 sets forth requirements that membership or religious corporations, societies or unincorporated associations must follow when they sell interment spaces or niches to each other. The Board proposes to amend N.J.A.C. 13:44J-14.1 and 14.2 to require that contracts for these sales include a requirement that the purchaser of the interment spaces or niches will notify the cemetery company when it sells, gives or assigns the interment spaces or niches. The contract also must require that the purchaser notify the cemetery company of an agent, or change in the agent, who has the authority to consent to burials in the interment spaces or niches it owns.

Proposed new rule N.J.A.C. 13:44J-14.4 sets forth the requirements that a cemetery company must follow if it seeks to reclaim interment spaces or niches from membership or religious corporations, societies or unincorporated associations. A cemetery company may reclaim any interment spaces in which no interment has been made, or niches in which no inurnment has been made, owned by a corporation, society or association that sells interment spaces or niches to individuals who are not members, fails to provide notification to the cemetery company when it sells an interment space or niche, does not designate an agent for the cemetery company who has authority to consent to burials in interment spaces or niches, or fails to make the required deposits to the Maintenance and Preservation Fund. A cemetery company that seeks to reclaim interment spaces or niches must send a letter to the membership or religious corporation, society or unincorporated association, detailing the reasons why the cemetery company is seeking to reclaim the spaces or niches. A copy of this letter must be sent to the Board. The membership or religious corporation, society or unincorporated association will have 90 days to respond to or correct the violations identified in the cemetery company's letter or contend that the violations were not committed. If the cemetery company and the membership or religious corporation, society or unincorporated association agree that the violations have been corrected, or that they did not occur, the cemetery company is to notify the Board. If the cemetery company and the corporation, society or association cannot come to an agreement on the alleged violations, the cemetery company must apply to the Board for permission to reclaim the interment spaces or niches.

A cemetery company that has been authorized by the Board to reclaim interment spaces or niches must reimburse the membership or religious corporation, society or unincorporated association for the purchase price of the interment spaces or niches. The profits of the cemetery company's resale of interment spaces or niches must be deposited in the Maintenance and Preservation Fund. The profits of the resale will be calculated by subtracting an administrative fee from the proceeds of the resale. The proceeds of the resale will be calculated by subtracting the amount reimbursed to the corporation, society or association from the resale price of the interment spaces or niches. As the Board has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The Board believes that the proposed amendments and new rule will have a beneficial impact on society. The new rule sets up a procedure that implements the statutory provision which allows cemetery companies to reclaim interment spaces and niches from membership or religious corporations, societies or unincorporated associations that do not follow the requirements of N.J.S.A. 45:27-32. This will help to ensure that these organizations follow statutory requirements. Proposed amendments to N.J.A.C. 13:44J-14.1 and 14.2 require a purchaser to notify the cemetery company when it sells, gives or assigns interment spaces or niches. The proposed amendments also require a purchaser to provide the cemetery company with the identity of the agent who may consent to burials. These notification requirements ensure that the cemetery company is aware of who is being interred in the cemetery and will help to ensure that memberships or religious corporations or unincorporated associations or societies are not purchasing interment spaces or niches for speculative purposes.

Economic Impact

The Board believes that the proposed amendments and new rule will have a beneficial economic impact on cemetery companies. The proposed new rule requires that the proceeds of a resale of interment spaces and niches reclaimed from membership or religious corporations, societies or unincorporated associations which have not complied with their obligations under the law be deposited in the Maintenance and Preservation Fund. Increased deposits in the Maintenance and Preservation Fund ensure that the cemetery companies have the money they need to fund the operation of the cemetery. The proposed amendments to N.J.A.C. 13:44J-3.1 will impose a fee on cemetery companies that apply to reclaim interment spaces and niches. The cost of this fee will be outweighed by the financial benefit realized by reclaiming the interment spaces and niches. Amendments to N.J.A.C. 13:44J-14.1 and 14.2 require a purchaser of interment spaces or niches to notify the cemetery company when it sells, gives or assigns interment spaces or niches and to notify the cemetery company of the identity of its agent. The cost of providing this notification will be borne by the purchaser.

Federal Standards Statement

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

Jobs Impact

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

Agriculture Industry Impact

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

Regulatory Flexibility Analysis

If, for purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., the approximately 400 cemeteries in the State and the membership or religious corporations, societies or unincorporated associations that purchase interment spaces or niches in a bulk sale are deemed "small businesses," 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. 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 proposed amendments and new rule do not require cemetery companies to employ professional services in order to comply with its dictates. The economic impact on small businesses is the same as those imposed on all businesses as detailed in the Economic Impact statement above. The proposed amendments and new rule do not impose any recordkeeping requirements, but do impose compliance and reporting requirements. Proposed amendments to N.J.A.C. 13:44J-3.1 require cemetery companies that apply to reclaim interment spaces or niches to pay an application fee. Proposed amendments to N.J.A.C. 13:44J-14.1 and 14.2 require that contracts for sales of interment spaces and niches to membership or religious corporations, societies or unincorporated associations include provisions that the corporations, societies or associations will notify the cemetery company when it resells an interment space or niche. Contracts also must include a provision that requires membership or religious corporations, societies or unincorporated associations to notify cemetery companies of the designated agent with authority to consent to burials.

Proposed new rule N.J.A.C. 13:44J-14.4 requires cemetery companies that seek to reclaim interment spaces to send a letter to the membership or religious corporation, society or unincorporated association which owns the interment spaces or niches. The cemetery company must send a copy of this letter to the Board. If the cemetery company and the membership or religious corporation, society or unincorporated association agree that an alleged violation has been corrected, the cemetery company must inform the Board of this. If a cemetery company and the membership or religious corporation, society or unincorporated association do not come to an agreement, the cemetery company is required to apply to the Board for authorization to reclaim the interment spaces or niches. A cemetery company that has been authorized to reclaim interment spaces or niches must reimburse the purchase price to the membership or religious corporation, society or unincorporated association and must deposit the proceeds of the resale into the Maintenance and Preservation Fund less allowable administrative costs.

The proposed amendments and new rule will impose reporting and compliance requirements on membership or religious corporations, societies or unincorporated associations that purchase interment spaces or niches in a bulk sale. Proposed amendments to N.J.A.C. 13:44J-14.1 and 14.2 will require purchasing membership or religious corporations, societies or unincorporated associations to notify the cemetery company when it sells, gives or assigns an interment space or niche. The proposed amendments also require purchasing membership or religious corporations, societies or unincorporated associations to designate an agent who has the authority to consent to burials.

The Board believes that since the proposed amendments and new rule are intended to ensure that the reclamation of interment spaces or niches owned by membership or religious corporations, societies or unincorporated associations is conducted fairly, the proposed amendments and new rule must be applied uniformly to all cemetery companies and no differing compliance requirements are provided based on size of the business.

Smart Growth Impact

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

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

13:44J-3.1 Charges and fees

(a) The following fees shall be charged by the Board:

1. Cemetery company fees:

i.-iii. (No change.)

iv. Application fees:

(1)-(9) (No change.)

(10) Reclamation of bulk sales. . . . . . . . .300.00

2.-3. (No change.)

(b) (No change.)

13:44J-14.1 Applications for bulk sales of interment spaces or niches

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

(d) An application for approval of a bulk sale shall include the following:

1.-2. (No change.)

3. A certified statement by an officer of the membership or religious corporation or unincorporated association or society which provides interment spaces or niches solely for its members and their families that:

i.-iv. (No change.)

v. The purchaser is purchasing the interment spaces or niches in good faith and does not have any intent to resell which would violate N.J.S.A. 45:27-32; [and]

vi. (No change.)

vii. The purchaser shall notify the cemetery company when it sells, gives or assigns interment spaces and niches; and

viii. The purchaser shall designate in writing to the cemetery company an agent who has authority to consent to burials in interment spaces or niches owned by it or a change in the agent.

4.-5. (No change.)

(e) (No change.)

13:44J-14.2 Sales to a membership or religious corporation or unincorporated association or society which provides interment spaces or niches solely for its members and their families

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

(c) An application for sale of the interment spaces or niches shall include the following:

1.-2. (No change.)

3. A certified statement by the officer of the purchasing organization that:

i.-iv. (No change.)

v. The organization is purchasing the interment spaces or niches in good faith and does not have any intent to resell which would violate N.J.S.A. 45:27-32; [and]

vi. (No change.)

vii. The purchaser shall notify the cemetery company when it sells, gives or assigns interment spaces and niches; and

viii. The purchaser shall designate in writing to the cemetery company an agent who has authority to consent to burials in interment spaces or niches owned by it or a change in the agent;

4.-5. (No change.)

(d) (No change.)

13:44J-14.4 Reclamation of interment spaces or niches owned by membership or religious corporations, societies or unincorporated associations

(a) A cemetery company may reclaim by repurchase any interment spaces or niches owned by a membership or religious corporation, society or unincorporated association, if no interment has been made in the interment spaces, or inurnment in niches, sought to be reclaimed, and if the corporation, society or association:

1. Sells, gives or assigns interment spaces or niches to individuals who are not its members, or the interment spaces or niches are not intended for the use of its members and their families;

2. Fails to provide the cemetery company notification when it sells, gives or assigns interment spaces or niches;

3. Does not designate in writing to the cemetery company an agent who has authority to consent to burials in interment spaces or niches owned by it or a change in the agent; or

4. Fails to make payments into the Maintenance and Preservation Fund required by N.J.S.A. 45:27-13.

(b) A cemetery company that intends to reclaim interment spaces or niches owned by a membership or religious corporation, society or unincorporated association pursuant to (a) above shall, prior to reclamation, send a letter by certified mail, return receipt requested, and by regular mail to the corporation, society or association at the address listed in the cemetery company's records which informs the corporation, society or association of the cemetery company's intention to reclaim, and of the actions or omissions listed in (a) above that the corporation, society or association is alleged to have committed. A copy of the cemetery company's letter shall be sent to the Board. In its letter, the cemetery company shall also inform the corporation, society or association that it has 90 days to respond to or correct the alleged acts or omissions and that it must copy the Board with its written response.

(c) The corporation, society or association shall have 90 days to correct the acts or omissions alleged by the cemetery company, or to contend that it has not committed the alleged acts or omissions.

(d) If the cemetery company and the corporation, society or association agree that an act or omission has been corrected, the cemetery company shall notify the Board.

(e) If the cemetery company and the corporation, society or association cannot agree that an act or omission has been corrected, or if the corporation, society or association does not respond to the cemetery company's letter, the cemetery company shall apply to the Board for approval before reclaiming the interment spaces or niches owned by the corporation, society or association. An applicant for approval shall submit to the Board:

1. A completed application for reclamation form;

2. A copy of all correspondence sent by the cemetery company to, and received from the corporation, society or association; and

3. The application fee set forth in N.J.A.C. 13:44J-3.1(a)1iv(10).

(f) A cemetery company that has been granted approval to reclaim interment spaces or niches pursuant to (e) above shall reimburse to the corporation, society or association the purchase price originally paid to the cemetery company for the interment spaces or niches, either upon reclamation or when the interment spaces or niches are resold by the cemetery company.

(g) The proceeds from the resale of a reclaimed interment space or niche shall be the resale price less the amount reimbursed to the corporation, society or association. The profits of the resale of a reclaimed interment space or niche shall be the proceeds less an administrative cost of up to 25 percent of the proceeds. The profits of the resale of a reclaimed interment space or niche shall be deposited in the Maintenance and Preservation Fund.



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