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VOLUME 37, ISSUE 24
ISSUE DATE: DECEMBER 19, 2005
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY CEMETERY BOARD

37 N.J.R. 4877(a)

Proposed Readoption with Amendments: N.J.A.C. 13:44J
Proposed New Rules: N.J.A.C. 13:44J-11.3, 15.1 and 15.3
Proposed Repeals: N.J.A.C. 13:44J-13.7, 15.1 and 15.2

Cemeteries

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 2005-445.

Submit comments by February 17, 2006 to:
Dianne Tamaroglio, Executive Director
New Jersey Cemetery Board
PO Box 45031
Newark, NJ 07101

The agency proposal follows:

Summary

The New Jersey Cemetery Board (the Board) proposes to readopt N.J.A.C. 13:44J with amendments, new rules and repeals. These rules are scheduled to expire on May 5, 2006, pursuant to N.J.S.A. 52:14B-5.1c. The Board also proposes to make amendments to the rules to effectuate P.L. 2003, c. 261, the New Jersey Cemetery Act, 2003. This Act, which was enacted on January 14, 2004, imposes new requirements for the regulation of cemetery companies.

In compliance with N.J.S.A. 52:14B-5.1, the Board undertook a thorough review of the existing provisions of N.J.A.C. 13:44J in order to repeal unnecessary or unreasonable rules and to propose new rules that the Board believes are needed to clarify and assist the administration of cemetery companies. The Board believes that the rules proposed for readoption, as amended, 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 have in place procedures which serve and protect the public's best interests. The following summarizes each subchapter in N.J.A.C. 13:44J and the amendments, new rules and repeals proposed to the existing rules.

Throughout this proposal, citations to N.J.S.A. 8A:1-1 et seq., where statutes governing the Board and cemetery companies were formerly codified, have been amended to reflect that the Board and cemetery companies are now governed by the Act, N.J.S.A. 45:27-1 et seq. The Board has also amended the term "grave" throughout the proposal to "interment space or niche" to reflect changes in the statutory definitions of "grave," "interment space" and "niche."

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. N.J.A.C. 13:44J-2.1 is proposed for amendment to incorporate new and amended definitions which appear in the Act. The amended rule also includes new definitions for the terms "adornments" and "transfers." The term "underground public mausoleum" is proposed for deletion as this term is not used in N.J.A.C. 13:44J.

Subchapter 3 sets forth the fees the Board charges. N.J.A.C. 13:44J-3.1 is proposed for amendment to add new fees for filing regulations and price lists with the Board, for initial branch license, for temporary branch licenses and for branch license renewal. These fees are being proposed to reflect proposed amendments to the rules dealing with filing regulations and price lists and branch licenses. Subchapter 4 sets forth the organizational structure of the Board.

Subchapter 5 sets forth requirements for cemetery companies. This subchapter prohibits cemetery companies from selling or installing certain burial products pursuant to N.J.S.A. 45:27-16. The subchapter also sets forth standards for cemetery price lists, trust funds, litigation involving cemetery companies, annual reports, reclamation of interment spaces or niches and restrictions on closing cemetery companies for interments.

N.J.A.C. 13:44J-5.2 is proposed for amendment to clarify that a price list must be posted and filed with the Board before it is effective. The rule is also proposed for amendment to clarify that a cemetery company must pay the filing fee when it submits an amended price list and to clarify that a cemetery company may not charge for an item on the amended price list until it has been filed with the Board. N.J.A.C. 13:44J-5.3 is proposed for amendment to reflect that N.J.S.A. 45:27-1 et seq. uses the term "transfer" and not "resale" to refer to transactions when an interment space or niche is provided to a member of an organization that purchased interment spaces or niches in a bulk sale. N.J.S.A. 13:44J-5.4 is proposed for amendment to correctly identify the name of and citation for the "Prudent Investor Act." N.J.A.C. 13:44J-5.7 is proposed for amendment to conform to new statutory provisions on reclaiming interment spaces or niches found at N.J.S.A. 45:27-33. Subsection (a) is proposed for amendment to state that an interment space or niche may be reclaimed if it was sold prior to December 1, 1971 and no burial has been made during the past 30 years in the plot that includes the interment space. Subsection (b) is proposed for amendment to require that notification of reclamation inform the owner of the interment space or niche that he or she may prevent a reclamation by sending written objection to the cemetery company within 30 days. The rule is also proposed for amendment to require that a cemetery company publish notification of reclamation in a newspaper if it cannot locate the owner of the interment space or niche. The Board proposes to delete N.J.A.C. 13:44J-5.7(b)3 which requires that a cemetery company send a copy of a published notification to the owner. As cemetery companies are only required to publish notification if they cannot find the owner, it is not possible for cemetery companies to send a copy of the published notification to the owner and the Board is, therefore, proposing to delete this requirement. Subsection (d) is proposed for amendment to require that at least 75 percent of the gross proceeds of the sale of an interment space or niche be deposited in the Maintenance and Preservation Fund. A cemetery company may allocate 25 percent of the gross proceeds of a sale to administrative costs.

Subchapter 6 requires cemetery companies to maintain certain documents. The subchapter 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. N.J.A.C. 13:44J-6.1 is proposed for amendment to clarify that a cemetery company's regulations and amendments to those regulations are not effective until they are filed with the Board. N.J.A.C.

13:44J-6.2 is proposed for amendment to require that a map show the location of graves, roadways, paths and building areas. A cemetery company may amend a map as long as existing access to interment spaces and niches is maintained, but such amendments are not effective until they have been filed with the Board.

Subchapter 7 sets forth standards for memorials placed on interment spaces or niches. N.J.A.C. 13:44J-7.1 is proposed for amendment to allow a cemetery company to prohibit the placement of a memorial on an interment space or niche until outstanding charges against the interment space or niche are paid. The rule is also amended to allow cemetery companies to adopt regulations regarding the uniformity of memorials, dedications, embellishments or other structures that will be placed on cemetery premises and to prohibit any structure that would be inappropriate, offensive or unsafe.

Subchapter 8 sets forth standards for disinterments from internment spaces or niches, including requirements for disinterments from non-titled interment spaces or niches and for disinterments due to additional interment in the same grave. The subchapter also sets forth standards for recording disinterments and for temporary storage prior to final entombment or interment. Proposed amendments to N.J.A.C. 13:44J-8.1 require a cemetery company that permits inurnment in a non-titled niche to two or more unrelated individuals to inform every authorizing agent that cremated remains inurned in the niche may be removed with the consent of any person who has the right to control the removal of remains pursuant to N.J.S.A. 45:27-22. N.J.A.C. 13:44J-8.4 is proposed for amendment to remove a requirement that a cemetery company only conduct temporary storage if the term "temporary storage" and the location of the temporary storage in the cemetery appears on the burial permit. This requirement is no longer imposed by statute.

Subchapter 9 deals with cremated human remains. A cemetery company is permitted to ship cremated human remains, but is required to label the package as cremated human remains.

Subchapter 10 sets forth requirements for cemetery salespeople. A cemetery salesperson is required to obtain a license from the Board and to renew that license biennially. The Board proposes to amend N.J.A.C. 13:44J-10.2 to reflect that the Act allows temporary licenses to be valid for 60 days and allows the Executive Director of the Board to extend this temporary license for additional 30 day periods. N.J.A.C. 13:44J-10.3 is proposed for amendment to clarify that a cemetery salesperson license is valid for two years. N.J.A.C. 13:44J-10.4 is proposed for amendment to require that a cemetery salesperson license be posted in the office of the cemetery company. N.J.A.C. 13:44J-10.5 is proposed for amendment to clarify that a cemetery salesperson who sells for more than one cemetery company is required to obtain an initial license for the first cemetery company and a branch license for every other cemetery company for which he or she sells. A salesperson who applies for a branch license must pay a branch license fee and must renew the branch license at the same time as the initial license.

Subchapter 11 sets forth standards for interment spaces or niches. Interment spaces which have been used for interment or entombment are inalienable. N.J.S.A. 45:27-28c deals with the inalienability. This law only applies to interment spaces, not niches. As such, the Board has proposed to delete the term "niches" from N.J.A.C. 13:44J-11.1. N.J.A.C. 13:44J-11.2 permits owners to transfer unused interment spaces or niches. Proposed new N.J.A.C. 13:44J-11.3 sets forth standards for recording transfers. The proposed new rule requires a cemetery company to maintain records on ownership of interment spaces or niches. These records must include the name of every individual who has ever held title to the interment space or niche and an indication of any transfer of ownership, and shall be indexed.

Subchapter 12 is a reserved subchapter.

Subchapter 13 sets forth requirements for applications to the Board. Cemetery companies are required to apply to the Board for certificates of authority. They are also required to apply to the Board for approval of dissolution, merger or consolidation with another cemetery company, sale of cemetery lands, enlargement by purchase of land and leasing unused cemetery land to another entity. N.J.A.C. 13:44J-13.1 is proposed for amendment to clarify what shall be included in an application for a certificate of authority. The Board also proposes to amend this rule to reflect that the new Act raised the initial deposit to the Maintenance and Preservation Fund from $ 25,000 to $ 75,000. The rule is further amended to clarify what the Board must do when it receives an application for a certificate of authority. N.J.A.C. 13:44J-13.4 is proposed for amendment to clarify that a cemetery company needs Board approval when it seeks to sell, or grant an easement regarding, land dedicated for cemetery purposes.

N.J.S.A. 8A:6-2 and 8A:6-12 set forth different standards leasing land to a for-profit or a non-for profit entity. N.J.S.A. 45:27-34 ended these different standards and imposed the same requirements on leasing land to either type of entity. The Board proposes to amend N.J.A.C. 13:44J-13.6 to reflect this change. N.J.S.A. 8A:6-2 required that the proceeds of a lease be used to pay the debts or liabilities of a cemetery company, or to improve the cemetery. N.J.S.A. 45:27-34 does not impose this requirement and N.J.A.C. 13:44J-13.6 is proposed for amendment to reflect this change. Amended N.J.A.C. 13:44J-13.6 states that a cemetery company may not lease land without Board approval. The amendments to the rule alter the type of information that must be included in an application. An application to lease cemetery lands must indicate that the land being leased will not be used for cemetery purposes during the term of the lease. The application also must include a statement by the prospective lessee indicating that it does not engage in any activity a cemetery company is prohibited from engaging in. The Board proposed to delete requirements that an application include a tax map of the land, evidence that there is access to the land from an abutting street and a statement that the prospective lessee is a nonprofit, religious, educational or charitable organization. N.J.S.A. 8A:6-12 required that any land being leased have access to an abutting street. This requirement is not in N.J.S.A. 45:27-34. The Board, therefore, no longer needs proof that the land to be leased has such access and is no longer requiring that a cemetery an application include a tax map or evidence or an abutting street. As there are no longer differing standards regarding for-profit and not-for profit entities, N.J.A.C. 13:44J-13.7, which sets forth standards for leasing unused cemetery lands to for-profit entities, is proposed for deletion.

Subchapter 14 sets forth requirements for the bulk sale 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. N.J.A.C. 13:44J-14.1 is proposed for amendment for clarification and to comply with N.J.S.A. 45:27-13. This statute requires that 15 percent of the current retail gross sales price of comparable graves and 10 percent of the current retail gross sales price of comparable crypts or niches be deposited in the Maintenance and Preservation Fund when graves, crypts or niches are sold in a bulk sale. The statute also requires that 15 percent of the current retail gross sales price of a grave, crypt or niche, less any amounts already paid into the Fund, be deposited in the Maintenance and Preservation Fund when a grave, crypt or niche is transferred. N.J.A.C. 13:44J-14.1 is also proposed for amendment to require that an application for a bulk sale include a copy of the cemetery company's price list. N.J.A.C. 13:44J-14.2 is also proposed for amendment to comply with the contributions to the Maintenance and Preservation Fund required by N.J.S.A. 45:27-13.

Subchapter 15 sets forth requirements that must be met when a cemetery company seeks to remove monumentation. The Board proposes to combine existing N.J.A.C. 13:44J-15.1, Removal of unauthorized monumentation, and 15.2, Application for removal of monumentation, into new N.J.A.C. 13:44J-15.1. Existing N.J.A.C. 13:44J-15.1 permits a cemetery company to remove unauthorized monumentation and 15.2 sets forth procedures a cemetery company must follow when it wishes to remove damaged monumentation. Pursuant to existing N.J.A.C. 13:44J-15.2, a cemetery company is required to send a certified letter to the interment space owner to obtain written consent for the removal. If written consent to the removal is not received, the cemetery may apply to the Board for authorization to remove the monumentation. An application to the Board must include the reasons for the removal, an indication that the cemetery company is unable to obtain written permission for the removal, photographs of the monumentation and an application fee. The proposed new rule allows a cemetery company to remove any memorial, embellishment or impediment that has not been authorized by the cemetery company or has been altered from the original design that was authorized by the cemetery company. A cemetery company is required to store a removed monumentation for at least one year. At the end of the year, the cemetery company may dispose of the monumentation if the owner has not taken possession of the monumentation and the cemetery company notifies the Board prior to disposal.

N.J.A.C. 13:44J-15.3 is proposed for recodification as 13:44J-15.2 and is proposed for amendment to change the heading to removal of unsafe monumentation. A cemetery company may remove any memorial, embellishment or impediment that is not safe. If a cemetery company wishes to remove an unsafe monumentation it shall take pictures of the monumentation and notify the owner within 30 days of the removal. This notification must indicate that the owner has the right to apply to the Board within six months of the removal for appropriate relief, such as restoration of the monumentation. The existing rule permitted a cemetery company to apply to the Board to dispose of removed monumentation. The proposed amendments require a cemetery company to store removed monumentation for one year. At the end of the year, the cemetery company may dispose of the monumentation if the owner has not taken possession and the cemetery company informs the Board prior to disposal. The Board has determined that the comment period for this proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.

Social Impact

The rules in N.J.A.C. 13:44J have had a beneficial social impact. They elaborate on various provisions of the New Jersey Cemetery Act, 2003, N.J.S.A. 45:27-1 et seq., and thereby provide guidance to the cemetery industry and the public. It is anticipated that the proposed amendments, new rules and repeals will allow cemeteries to provide enhanced services and clarify the expectations of the Board for the practice of administering cemeteries. The rules impact cemetery companies, and those individuals who maintain them, people licensed as cemetery salespeople, and 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. Amendments to N.J.A.C. 13:37-5.7 allow cemetery companies to reclaim unused interment spaces or niches, increasing the number of spaces available for interment in a cemetery while ensuring that the owners of these spaces and niches are properly notified of the reclamation and can obtain reimbursement for a space or niche that has been reclaimed.

Subchapter 6 deals with requirements for documents a cemetery company must submit to the Board and with requirements for how the grounds of a cemetery are treated, 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 have standards to follow 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 which protect the deceased's dignity when disinterring remains. Amendments to N.J.A.C. 13:44J-8.1 require that agents who purchase a space in a non-titled niche are informed that inurned remains may only be removed with the consent of the person who has the right to control the removal of remains pursuant to N.J.S.A. 45:27-22.

Subchapter 9 deals with cremains and protects society by ensuring that cremains, when shipped through the mail or by parcel service, will be 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 licensed by the Board so that they properly provide sales services for cemetery companies. Amendments to N.J.A.C. 13:44J-10.4 require that a copy of a salesperson license will be posted in the office of the cemetery company so that consumers will be able to identify licensed salespeople. Subchapter 11 deals with interment spaces or niches and requires that spaces with interments in them be inalienable but allows the owners of unused interment spaces to sell those spaces 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. New rule N.J.A.C. 13:44J-11.3 ensures that cemetery companies keep accurate records as to transfers of ownership of an interment space or niche.

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. Amendments to N.J.A.C. 13:44J-13.1 ensure that the public can obtain copies of applications for certificates of authority upon request. Subchapter 14 requires a prior Board approval for the bulk sale and resale of interment spaces or niches. This ensures that bulk 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 which 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.

Economic Impact

Some of the rules proposed for readoption with amendments, new rules or repeals will have an economic impact. N.J.A.C. 13:44J-3.1 sets forth the fees which 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 which will supply the minimum amount of money necessary for the Board to be self-funding and thus in compliance with N.J.S.A. 45:1-3.2. Amendments to N.J.A.C. 13:44J-3.1 set forth new fees for filing amendments to regulations and price lists. These fees will be paid by the cemetery companies filing the amendments. The amendments to this rule also impose fees for obtaining an initial branch license, obtaining a temporary branch license and for renewing a branch license. These fees will be paid by cemetery salespeople who work for more than one cemetery.

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. Amendments to N.J.A.C. 13:44J-5.2 state that a price list and amendments to a price list will not be effective until they are filed with the Board. The fact that a cemetery company cannot charge new fees until they are filed will affect the fees a cemetery company may collect. 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 which outlines the administration 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. Amendments to N.J.A.C. 13:44J-5.7 require 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. Cemetery companies will also be economically impacted by amendments to N.J.A.C. 13:44J-5.7 in that these amendments require that at least 75 percent of the gross proceeds of the sale of reclaimed spaces and niches be placed in the Maintenance and Preservation Fund. This has been lowered from the current requirement of at least 85 percent. This means that cemetery companies may use more of the proceeds from the sale of a reclaimed space or niche for the administrative costs associated with the reclamation.

N.J.A.C. 13:44J-6.1 will continue to impose an economic impact on cemetery companies by requiring them to file a copy of their rules and regulations with the Board and by requiring them to pay fees if they wish to amend their regulations. N.J.A.C. 13:44J-6.2 requires that every cemetery company 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 impose an economic impact by requiring a cemetery company to negotiate with a space owner, and provide them with a new space at the same cost of the old, if a space no longer conforms to the requirements of N.J.A.C. 13:44J-6.3. 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. Amendments to N.J.A.C. 13:44J-8.1 require 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 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 licensees to submit to the Board a completed renewal form, 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. The licensee must also submit the renewal fee when renewing his or her licensure. Amendments to N.J.A.C. 13:44J-10.5 require 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.

New rule 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. Amendments to N.J.A.C. 13:44J-13.1 require 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, merger, selling land, purchasing land, or leasing land. The cost of preparing the documents necessary for these applications will continue to be borne by the cemetery company. Amendments to N.J.A.C. 13:44J-14.1 and 14.2 will 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. Amendments to 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 with amendments, new rules and repeals.

Jobs Impact

The Board believes that the majority of the rules proposed for readoption with amendments, new rules and repeals will not result in the generation or loss of jobs in the State. However Subchapter 10, which sets forth licensure standards for cemetery salespeople, does impact the jobs of those who act as cemetery salespeople in New Jersey. In particular, N.J.A.C. 13:44J-10.1 states that no person may work as a cemetery salesperson unless he or she is licensed by the State or is an officer, superintendent, manager or clerk of a cemetery company.

Agriculture Industry Impact

The Board does not believe that the rules proposed for readoption with amendments, new rules and repeals 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 proposal are the same costs that are imposed on all businesses as outlined in the Economic Impact Statement 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. If a cemetery company employs a financial consultant, it will bear the costs associated with such employment. The Board is unable to determine these costs as they will vary depending on the size of the trust fund and the nature of the services provided by the consultant. The Board does not believe that cemetery companies will need to employ any other professional services to comply with the requirements of the proposal. The rules proposed for readoption with amendments and the proposed new rules impose compliance, reporting and recordkeeping requirements, as discussed in the Summary above.

As the compliance, reporting and recordkeeping requirements contained in the rules proposed for readoption with amendments, new rules and repeals 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 believes that the rules proposed for readoption with amendments, new rules and repeals may have some impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan. N.J.A.C. 13:44J-13.4 and 13.6 impose requirements when a cemetery company seeks to sell or lease cemetery land. One of these requirements is that the purchaser or lessor may not engage in an activity that a cemetery company is prohibited from engaging in pursuant to N.J.S.A. 45:27-16. If an entity is barred from purchasing or leasing land from a cemetery because it is engaged in an activity prohibited by N.J.S.A. 45:27-16 and this entity instead must purchase or lease land that would otherwise be kept as open space, these rules may impact smart growth and the State Plan. The Board does not anticipate that the rules proposed for readoption with amendments, new rules and repeals will have any other impact on the achievement of smart growth and implementation of the State Plan.

Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:44J.

Full text of the rules proposed for repeal may be found in the New Jersey Administrative Code at N.J.A.C. 13:44J-13.7, 15.1 and 15.2.

Full text of the proposed amendments and new rules follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

13:44J-2.1 Definitions

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

"Act" means the New Jersey Cemetery Act, 2003, N.J.S.A. [8A:1-1] 45:27-1 et seq.

"Adornments" means items placed on an interment space or niche on a temporary basis by the owner of the interment space or niche or by the cemetery company.

"Annual, endowed or special care" means care or maintenance of an individual interment space provided for by agreement between the cemetery and the owner of the space.

"Bulk sales" means the sale of 17 or more interment spaces or niches, in a single transaction or series of transactions, whenever made, to any one membership [corporation,] or religious corporation[, society] or unincorporated association or society which provides interment spaces or niches solely for its members and their families [of 17 or more, in a single transaction or series of transactions, whenever made].

"Burial" means disposition of human remains by placing them in a grave or crypt, but does not include their temporary storage.

"Burial right" means a right for the burial of human remains in a particular grave or crypt created by contract between a person and a cemetery.

"Cemetery" means any land or place used or dedicated for use for burial of human remains or disposition of cremated human remains, and also includes a crematory located on dedicated cemetery property.

"Cemetery company" means a person that owns, manages, operates or controls a cemetery or crematory, directly or indirectly, but does not include a religious organization that owns a cemetery or crematory which restricts burials or cremations to members of that religion or their families unless the organization has obtained a certificate of authority for the cemetery or crematory.

"Columbarium" means a building or structure containing niches for placement of cremated human remains.

["Cremains"] "Cremated human remains" or "cremains" mean[s] the recoverable bone fragments[,] and container [and retort] residue resulting from the process of cremation.

"Cremation" [means the reduction of the body of a deceased person to incinerated remains] means the process of reducing human remains to bone fragments through flame, heat and vaporization and shall constitute the final disposition.

"Crematory" means a structure containing cremation chambers used to cremate human remains.

"Crypt" means an interment space in a mausoleum or other structure, above or below ground, which does not include a niche.

"Embellishment" means an item contributing to beauty, comfort or enhancement of a cemetery, but does not include a memorial or a disposable, perishable or seasonal item or adornment.

"General maintenance charge[s]" means [the annual charge levied against each grave that was sold without any provision for maintenance and preservation on the part of the cemetery company] a fee assessed against each interment space or niche for the general upkeep of the cemetery.

"Grave" means a [space of ground not exceeding 40 square feet in a cemetery used or intended to be used for interment of human remains] place for underground disposition of human remains or cremated human remains which may include spaces for the disposition of human remains of more than one person, arranged by depth.

"Human remains" means a body, or part of a body, of a deceased human being or an amputated limb of a living human being.

"Interment" means the [lawful] disposition of human remains by burial[, entombment or inurnment] in a grave or crypt but does not mean the temporary storage of remains.

"Interment space" means a grave or crypt intended for the interment of human remains.

"Inurnment" means the placement of a container of cremated human remains in a niche.

"Maintenance" means all activities of a cemetery company which further the care and upkeep of a cemetery, including cutting lawns, and preservation and repair of drains, water lines, roads, buildings, fences and other structures.

"Maintenance and preservation" means the care of the entire cemetery to the extent of the income of the Maintenance and Preservation Fund but does not include providing specific care to individual graves or plots.

"Mausoleum" means a permanent building in a cemetery above or below ground, containing crypts to be used for burial.

"Memorial" means a marker or monument located at a grave containing the name of a deceased person or the family name of a deceased person, or an effigy or other representation of a deceased person buried in the grave but does not include an embellishment.

. . . "Niche" means a space in a columbarium or mausoleum for placement of cremated human remains.

"Non-titled niche or interment space" means a [grave] niche or an interment space in a plot[,] for which no title or deed is issued, that holds either a single inurnment or interment, or multiple inurnments or interments of unrelated persons.

"Path" means a [continuous] course or way [which has a minimum width of 30 inches and] which primarily provides pedestrian access to interment spaces or niches already sold. Path does not mean an avenue or other roadway or areas reserved or set apart for building purposes.

"Person" means [a cemetery company, cemetery, individual, partnership, limited partnership, corporation, business association, trustee, municipality, or any officer or official board or agency of a cemetery or municipality] an individual, corporation, partnership, association or any other public or private entity.

"Plot" or "lot" means an area of cemetery ground containing two or more adjoining graves.

"Private mausoleum" means a mausoleum constructed by or for a plot owner and not owned by the cemetery.

"Public mausoleum" means a mausoleum, built in accordance with rules of the Department of Community Affairs, owned by a cemetery or cemetery company for the use of interment spaces by the general public but is not a single or multiple vault in that it is a single integrated structure assembled on the premises. It shall not consist of one or more vaults constructed off the cemetery premises and installed singly or in series at the cemetery premises.

"Roadway" means [any open way for the passage of vehicles and persons] a course or way intended to provide motor vehicle access to interment spaces or niches.

"Total cost of structure" as used in N.J.S.A. [8A:3-14e] 45:27-14b means any expense incurred by the cemetery company due to the construction and furnishing of a public mausoleum, such as, actual building costs, walkways, architect fees, building permit fees, landscaping, installation of utility lines and internal furnishings.

"Transfer" means the sale, gift or assignment of an interment space or niche.

["Underground public mausoleum" means an integrated structure containing a minimum of 48 crypts set upon a poured concrete floor, with adequate drainage, and contained within walls of masonry construction. The crypts shall not include vaults as defined in N.J.S.A. 8A:1-2.]

"Vault" means a prefabricated outer burial case of any material, designed to be installed in the ground to receive one or more burials, and not a part of a public or private mausoleum or any other structure.

13:44J-3.1 Charges and fees

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

1. Cemetery company fees:

i.-ii. (No change.)

iii. Filing amendments to charters/regulations/price list........ 25.00

iv. Application fees:

(1)-(4) (No change.)

(5) Renovation of [grave] interment space or niche areas... 100.00

(6)-(7) (No change.)

(8) Bulk sale of [graves] interment spaces or niches............ 75.00

(9) (No change.)

2. Salesperson fees:

i.-iii. (No change.)

iv. Initial branch license:

(1) If paid during the first year of a biennial renewal period 75.00

(2) If paid during the second year of a biennial renewal period.............. 37.50

v. Temporary branch license.................................................. 5.00

[iv.] vi. (No change in text.)

vii. Branch license renewal................................................. 30.00

Recodify existing v.-vii. as viii.-x. (No change in text.)

3. (No change.)

(b) (No change.)

13:44J-5.2 Cemetery price list; future services; general maintenance charges

(a) Every cemetery company shall have a price list which shall be posted by the cemetery company and filed with the Board pursuant to N.J.S.A. [8A:5-4 and 8:5-5] 45:27-18. Except as set forth in (b) below, [the collection of any] a charge [that has not been] shall be posted and filed with the Board [shall be a violation of the Cemetery Act] before it may take effect.

(b)-(e) (No change.)

(f) The cemetery company may amend its price list for charges for individual items at times other than when its annual Maintenance and Preservation Trust Fund Report is filed, provided that the cemetery company files such amendments with the Board, pays the filing fee as set forth in N.J.A.C. 13:44J-3.1(a)1iii and posts the amendments at the office of the cemetery company and provides updated price lists upon request. A cemetery company shall not collect an amended charge until the amended price list has been filed with the Board.

(g)-(h) (No change.)

13:44J-5.3 Trust funds

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

(c) Monies required to be deposited into the Maintenance and Preservation Fund shall be paid to the fund on a monthly basis. Such deposits shall be made by the last day of the month following the month in which the monies were received. In the event of an installment sale of [a grave, crypt] an interment space or niche, the cemetery company may make the required deposit at the time the deed is issued or when the payments are received.

(d)-(e) (No change.)

(f) The maintenance and preservation deposit shall not be made where a living lot owner transfers an interment space or spaces to a charitable organization without monetary consideration. This is not a [resale] transfer pursuant to N.J.S.A. [8A:4-5] 45:27-13, provided that the charitable organization submits proof of its charitable status to the cemetery company and the charitable organization arranges for a payment into the Maintenance and Preservation Fund when the interment space or niche is sold [or], transferred or assigned.

(g) A cemetery company shall pay fees and charges required by N.J.S.A. [8A:4-5] 45:27-13 into its Maintenance and Preservation Fund in any case in which it gives an interment space, niche, or right of interment, free of charge at the time the space or right is provided and calculated at existing sales price at that time.

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

(i) Distribution of interment spaces or niches by a society in liquidation does not constitute a [resale] transfer and the cemetery company is not obliged to collect and deposit into the Maintenance and Preservation Fund the amounts set forth in N.J.S.A. [8A:4-5] 45:27-13. A cemetery company may, however, before recording the assignment of the interment spaces or niches, require that future general maintenance charges be assumed by the grantee or may require an endowment in place of the general maintenance charges.

(j) Membership [corporations,] or religious corporations[, societies] or unincorporated associations or societies which sell or transfer interment spaces or niches to its members or their families shall transmit to the cemetery company for deposit in the Maintenance and Preservation Fund at least 15 percent of the gross sales price for similar interment spaces or niches established by the cemetery company at the time of the resale or transfer[, or $ 25.00, whichever is greater]. A credit shall be given for any money previously paid into the Maintenance and Preservation Fund in connection with the interment space or niche.

13:44J-5.4 Trust fund management; recordkeeping

(a) All investments of cemetery trust funds shall be made pursuant to the "Prudent [Investment Law] Investor Act," N.J.S.A. 3B:20-[12]11.1 et seq.

(b)-(c) (No change.)

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

(a) A cemetery may reclaim an individual [grave 25 or more years from the date of the sale of the grave] interment space or niche sold prior to December 1, 1971 if:

1. No interment has been made in the grave or crypt and no inurnment has been made in the niche;

2. No provision for [perpetual or endowed] annual, endowed or special care or maintenance has been made; and

3. [No annual care payment has been made during the past 25 years] No burial has been made for 30 years in the plot that includes the interment space.

(b) A cemetery that intends to reclaim an individual [grave] interment space or niche pursuant to (a) above shall, prior to reclaiming such [grave] interment space or niche:

1. Send a certified letter, return receipt requested, to the owner of the [grave] interment space or niche, or any heirs of the owner listed in the cemetery's records, at the address listed in the cemetery's records, which informs the owner or heirs that [the grave is sought to be reclaimed and subject to sale;] they may prevent the cemetery from reclaiming the interment space or niche by sending a written objection to the cemetery company within 30 days; and

2. Publish a notice in a newspaper[, whose circulation includes the county in which the grave is located, which lists] if the cemetery company cannot locate the owner of the interment space or niche, or any heirs of the owner listed in the cemetery's records, at the address listed in the cemetery's records. The newspaper's circulation shall include the county in which the interment space or niche is located. The notice shall indicate the owner and any heirs of the owner listed in the cemetery's records and contain the names of each deceased person buried in the plot that includes the interment space and the date of each burial, if these names and dates are ascertainable. The notice shall state that, in the absence of written objection received within 30 days from the publication of the notice, the vacant [grave] interment space or niche will be subject to sale. [and that the net proceeds of the sale will be deposited in the cemetery's Maintenance and Preservation Fund; and

3. Send a copy of the published notice by certified mail, return receipt requested, to the owner of the grave, if living, or to the heirs listed in the cemetery records at their last known address at least 30 days prior to the sale of the grave.]

(c) If the owner of the [grave] interment space or niche or the heirs of the owner fail to respond to the letter or notices sent pursuant to (b) above, the cemetery may sell the reclaimed [grave] interment space or niche no sooner than 30 days from the date of publication of the notice.

(d) The cemetery company shall deposit at least [85] 75 percent of the gross proceeds received from the sale of the reclaimed [grave] interment space or niche in the Maintenance and Preservation Fund. Up to [15] 25 percent of the gross proceeds of the sale of the reclaimed [grave] interment space or niche may be allocated by the cemetery to administrative costs, which shall include sales commission. The cemetery shall indicate these costs in its records, which shall be made available to the Board and the owner or the heirs of the owner upon request.

(e) A reclaimed [grave] interment space or niche shall be sold for the same price as other [graves] interment spaces or niches in the section in which the [grave] interment space or niche sold is located. If there are no [graves] interment spaces or niches available for sale in the section in which the reclaimed [grave] interment space or niche is located, the reclaimed [space] interment space or niche shall be sold for the same price as [graves] interment spaces or niches in a comparable section of the cemetery.

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

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

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

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

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

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

13:44J-6.1 [Rules and regulations] Regulations of a cemetery company

A cemetery company shall file with the Board a copy of its [rules and] regulations. A cemetery company may amend or supplement its [rules and] regulations by filing with the Board such amendments or supplements. This filing shall be accompanied by a filing fee payable to the Board, in accordance with N.J.A.C. 13:44J-3.1(a)1[iv]iii. Regulations and amendments to regulations shall not be effective until filed with the Board.

13:44J-6.2 Maps

(a) Every cemetery company shall maintain a map of the cemetery readily available for inspection at its main office. Any change in the physical layout of the cemetery shall be reflected annually on the map. The map shall show the location of interment spaces or niches with roadways, paths and building areas.

(b) A cemetery company may amend a map to include areas not previously laid out or to change the layout of plots not sold. Existing roadways and walks to graves already sold shall not be abandoned but may be altered as long as similar access to existing interment spaces and niches is not denied. Paths may be renovated or reduced in size as long as the path conforms to N.J.A.C. 13:44J-6.3(a). The amended map shall not be effective until it has been filed with the Board.

13:44J-6.3 Paths

(a) Paths to interment spaces or niches shall be a minimum of 30 inches wide.

(b) When a cemetery company resurveys, alters, changes or modifies a portion of its grounds which have been previously laid out on a map or maps into interment spaces or niches, the cemetery company shall ensure that paths to previously sold interment spaces or niches are maintained.

(c) This section shall not apply to the laying out of portions of ground in areas of cemetery property which have not previously been laid out on a map or maps into paths or interment spaces or niches.

(d)-(e) (No change.)

13:44J-7.1 Memorials

(a) Once interment has been made in [a cemetery lot or grave] an interment space or niche, the cemetery company shall not prohibit reasonable memorialization of the remains subject to (d) and (e) below.

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

1. (No change.)

2. The cemetery company may, pursuant to N.J.S.A. [8A:4-6] 45:27-16, preclude the placement of a memorial until [all general maintenance charges assessed on the lot and grave] any outstanding charges against the interment space or niche are paid.

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

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

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

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

13:44J-7.2 Removal of monumentation

(a) In the event that a memorial foundation installed by a cemetery company and paid for by a lot, [or grave] interment space or niche owner or other interested party sinks or otherwise falls into disrepair, causing the memorial immediately above to sink or become unlevel within 10 years from the date of the original installation, the cemetery company shall raise, replace or repair the foundation and reset the memorial at its own cost and expense. After 10 years, a cemetery company may charge a lot, [or grave] interment space or niche owner or a responsible party, the actual cost for the raising, replacing or repairing of the foundation and resetting of the memorial.

(b) (No change.)

13:44J-7.3 Burial of monumentation

For the purposes of N.J.S.A. [8A:5-23] 45:27-24, the burial of a monument or a memorial shall be considered a removal of that monument or memorial.

13:44J-8.1 Disinterment from a non-titled [grave] interment space or niche

(a) Any cemetery company permitting interment in a non-titled [grave] interment space to two or more unrelated individuals shall, at the time of the sale, inform each authorizing agent in writing that remains interred in any such space may be disinterred only with the consent of the surviving spouse and children, if of full age, of all burials above the deceased sought to be disinterred, or, in absence of such consent, by a court order.

(b) Any cemetery company permitting inurnment in a non-titled niche to two or more unrelated individuals shall, at the time of the sale, inform each authorizing agent in writing that cremated remains inurned in any such space may be removed with the sole consent of any person who has the right to control the removal of the remains pursuant to N.J.S.A. 45:27-22.

13:44J-8.4 Temporary storage prior to final entombment or interment within a single cemetery

(a) For purposes of this section, "properly constructed receiving vault" means a container, constructed pursuant to the provisions of N.J.S.A. [8A:3-14] 45:27-27.

(b) (No change.)

[(c) A cemetery company may conduct temporary storage and transfer under this section only if the words "temporary storage" along with the location of the temporary storage within the cemetery appear on the burial permit.]

[(d)] (c) The receptacle to be placed in temporary storage which contains the human remains shall be clearly, legibly and durably marked with:

1. (No change.)

2. The full name, mailing address and telephone number of both the responsible next of kin as defined under N.J.S.A. [8A:5-18] 45:27-22; and

3. (No change.)

[(e)] (d) Prior to transfer from the place of temporary storage to the place of final entombment or interment pursuant to this section, the cemetery company shall notify in writing the licensed funeral director or funeral establishment that originally supervised the delivery to temporary storage or another licensed funeral director or funeral establishment of the next of kin's choice, and the responsible next of kin as defined by N.J.S.A. [8A:5-18] 45:27-22, at least seven days before the transfer from the temporary storage.

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

13:44J-10.2 Application for license as a cemetery salesperson

(a) (No change.)

(b) Once the Board has received the completed application, it may issue a temporary license allowing an applicant to act as a cemetery salesperson until the Board has received the results of the criminal history investigation. The temporary license shall be valid for [45] 60 days.

(c) The Executive Director of the Board is authorized to extend the validity of a temporary license beyond the [45] 60-day limit for additional periods not exceeding 30 days each if:

1. The Board has not received the results of the criminal investigation by the end of the [45 day] preceding period; or

2. The Board has not had an opportunity to review the results of the criminal investigation within that [45 day] preceding period.

(d)-(e) (No change.)

13:44J-10.3 Renewal of license

(a) A cemetery salesperson license shall be valid for two years. An applicant for renewal of a cemetery salesperson license shall submit the following:

1.-3. (No change.)

13:44J-10.4 Possession of license

(a) A licensed cemetery salesperson shall have the license in his or her possession whenever acting as a cemetery salesperson.

(b) A copy of the cemetery salesperson license shall be posted in each office of the cemetery company.

13:44J-10.5 [Multiple] Branch licenses

(a) A cemetery salesperson [selling] may sell for more than one cemetery company. A cemetery salesperson who sells for more than one cemetery company shall obtain [a separate] an initial license for [each] the first cemetery company for which he or she sells [and shall pay a license and temporary license fee for each cemetery but the applicant shall be required to pay only one application fee] and a branch license for every other cemetery company for which he or she sells.

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

(c) Branch licenses shall be renewed at the same time as the initial license. An applicant for renewal of a branch license shall submit the following:

1. A completed renewal form;

2. The renewal fee as specified by N.J.A.C. 13:44J-3.1(a)2vi; and

3. For applicants who reside outside of this State, a designation of agent form if no designation of agent form has ever been submitted to the Board or if the designation of agent form previously submitted does not list the current agent for service of process.

SUBCHAPTER 11. INTERMENT SPACES OR NICHES

13:44J-11.1 Inalienability of interment spaces

Any [grave, crypt] interment space [or niche] which has been used for interment or entombment shall be inalienable and shall only be transferred pursuant to N.J.S.A. [8A:7-2] 45:27-28.

13:44J-11.2 Transferability of interment space or niches

Owners or heirs, devisees and legatees of owners of unused [graves] interment spaces or [crypts] niches may grant, convey, sell or donate such [graves] interment spaces or [crypts] niches.

13:44J-11.3 Record of transfers

(a) Every cemetery company shall maintain records of transfers of ownership of interment spaces or niches which shall include:

1. The name of every individual who has ever held title to the interment space or niche; and

2. An indication of any transfer of ownership of the interment space or niche from (the effective date of this rule).

(b) Records of transfers shall be indexed by:

1. The number of the interment space or niche; and

2. The name of each owner.

13:44J-13.1 Application for certificate of authority

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

(c) A cemetery company organized before December 1, 1971 applying for a certificate of authority shall submit to the Board:

1.-5. (No change.)

6. A copy of the applicant's charges for interment spaces, niches and services.

(d)-(e) (No change.)

(f) A cemetery company organized on or after December 1, 1971 applying for a certificate of authority shall submit to the Board:

1. A completed certificate of authority application which shall include the information the Board needs to determine:

i. The necessity for the services the applicant seeks to provide, considering present or future public need and convenience, land or territorial qualifications;

ii. The applicant's fitness and ability to perform proposed services;

iii. The applicant's fitness and ability to conform to N.J.S.A. 45:27-1 et seq. and this chapter; and

iv. The applicant's fitness and ability to comply with health protection rules of the New Jersey Department of Health and Senior Services, the New Jersey Department of Environmental Protection, and a local health authority;

2.-6. (No change.)

7. A copy of the applicant's charges for interment spaces, niches and services;

8. (No change.)

9. A statement and supporting evidence, if any, that the cemetery company is financially able to establish [an Initial Balance] a Maintenance and Preservation Fund of $[25,000] 75,000 pursuant to the requirements of N.J.S.A. [8A:4-3] 45:27-13, except that a cemetery company operating as a crematory which is wholly independent and physically separated from any cemetery shall not be required to provide such a statement, nor shall a cemetery company which has been engaged in the operation of a cemetery prior to December 1, 1971 be required to provide such a statement.

(g) (No change.)

(h) Applications made pursuant to (c) and (f) above shall be made in writing and under oath on forms provided by the Board. Notice that an application has been received shall be provided in the Board agenda for the first meeting following receipt of the application. All applications shall be made available to the public upon request.

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

13:44J-13.2 Application for dissolution of a cemetery company

(a) (No change.)

(b) A cemetery company which wishes to dissolve shall submit to the Board:

1.-2. (No change.)

3. A copy of the resolution of dissolution approved by:

i. In the case of a cemetery company not owned by shareholders, a majority of the board of trustees and a majority of voting members at a meeting for which notice was given in accordance with N.J.S.A. [8A:3-17] 45:27-10; or

ii. (No change.)

(c) (No change.)

13:44J-13.4 Application for sale of cemetery lands

(a) No cemetery company shall sell land dedicated for cemetery purposes or grant an easement of such land without prior Board approval.

(b) A cemetery company which wishes to sell any land dedicated to cemetery purposes shall submit to the Board:

1.-3. (No change.)

4. A statement by the board of trustees or directors that when a deed is drawn for the land it will include a prohibition against using the land for any activity in which a cemetery company is prohibited from engaging by N.J.S.A. [8A:5-3] 45:27-16;

5.-10. (No change.)

(c)-(f) (No change.)

13:44J-13.5 Application for enlargement of cemetery area by purchase

(a) (No change.)

(b) A cemetery company which wishes to purchase land and dedicate that land for cemetery purposes shall submit to the Board:

1. A statement by the board of trustees or directors that the total area of the cemetery, after the new land is added, will not exceed the statutory limits set forth in N.J.S.A. [8A:6-1 and 8A:6-6] 45:27-25, unless in the latter case the municipality has waived the limit;

2. (No change.)

3. A copy of the resolution of consent by the municipality where the cemetery is located, as required by N.J.S.A. [8A:6-5] 45:27-25; and

4. (No change.)

(c) (No change.)

13:44J-13.6 Application to lease or license [unused] cemetery lands [to a nonprofit, religious, educational or charitable organization]

(a) A cemetery company shall not lease or license [unused] cemetery lands to [a nonprofit, religious, educational or charitable organization] another organization or entity without prior approval of the Board. [Any proceeds from the lease or license shall be used to pay the debts and liabilities of the cemetery company or to improve the cemetery.]

(b) An application to lease or license [unused] cemetery lands [to a nonprofit, religious, educational or charitable organization] pursuant to N.J.S.A. [8A:6-12] 45:27-34 shall include:

1. A certified statement by the board of trustees or directors that the lands to be leased will not be plotted for burial lots or, if already plotted, that burial lots therein will not be sold for burial purposes or otherwise used for cemetery purposes [for two years following the meeting of the board of trustees or directors approving the application] during the term of the lease;

[2. A tax map, or other equivalent official map, of the land which indicates that it abuts a public street or highway;

3. A certified statement by the prospective lessee that it is a nonprofit, religious, educational or charitable organization;]

2. A statement by the prospective lessee that it does not engage, directly or indirectly, in an activity that a cemetery company is prohibited from engaging in pursuant to N.J.S.A. 45:27-16;

[4.] 3. (No change in text.)

[5. Evidence that there is an access from the abutting public highway or street;]

Recodify existing 6.-8. as 4.-6. (No change in text.)

(c) (No change.)

13:44J-13.7 (Reserved)

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

(a) (No change.)

(b) No cemetery company shall sell [graves] 17 or more interment spaces or niches, in one or more transactions, to a membership [corporation,] or religious corporation[, society] or unincorporated association or society without prior Board approval [if the sale to the membership corporation, religious corporation, society or unincorporated association or society would cause the number of graves held by the membership corporation, religious corporation, society or unincorporated association or society, or its members, to be more than 17 interment spaces].

(c) (No change.)

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

1. A copy of the contract of sale, which shall include the names of the parties, the number of interment spaces or niches to be sold, the location of each, and the sales price;

2. A statement by the cemetery company that:

i. The transaction conforms to N.J.S.A. [8A:7-12 and 8A:9-7] 45:27-32;

ii. The cemetery company will deposit into its Maintenance and Preservation Fund at least 15 percent of the current retail gross sales price of [the interment spaces, or $ 25.00 per grave, whichever is greater,] comparable graves or at least 10 percent of the current retail gross sale price of comparable crypts or niches as payments are received;

iii. The cemetery company is aware that, if the purchaser resells or transfers an interment space or niche in the future, at least 15 percent of the current retail gross sales price [for similar interment spaces established by the cemetery company at the time of resale, or $ 25.00, whichever is greater,] of comparable internment spaces or niches must be deposited into the Maintenance and Preservation Fund of the cemetery company, and that a credit shall be given for any money previously paid into the Maintenance and Preservation Fund in connection with the interment space or niche; and

iv. The cemetery company is selling the interment spaces or niches in good faith and does not have any knowledge of any [speculative] intent to resell on the part of the purchaser which would violate N.J.S.A. [8A:7-12 and 8A:9-7] 45:27-32;

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

i. (No change.)

ii. The purchaser will purchase the spaces pursuant to N.J.S.A. [8A:7-12 and 8A:9-7] 45:27-32;

iii. The purchaser will resell or give the interment spaces or niches, or the right to use the interment spaces or niches, purchased in this bulk sale only to members, and the spaces will be provided solely for members and their families;

iv. If the purchaser transfers or resells any interment space or niche in the future, it will transmit to the cemetery for deposit into the Maintenance and Preservation Fund of the cemetery company at least 15 percent of the current retail gross sales price [for similar interment spaces established by the cemetery company at the time of resale, or $ 25.00, whichever is greater,] of comparable internment spaces or niches and that the purchaser shall receive a credit for any money previously paid into the Maintenance and Preservation Fund in connection with the interment space or niche;

v. The purchaser is purchasing the interment spaces or niches in good faith and does not have any [speculative] intent to resell which would violate N.J.S.A. [8A:9-7] 45:27-32; and

vi. The purchaser shall send to the cemetery company the name and address of individuals who have the right of interment in an interment space and their next of kin[.];

4. A copy of the cemetery company's price list; and

[4.] 5. (No change in text.)

(e) (No change.)

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

(a) A membership [corporation,] or religious corporation[, society,] or an unincorporated association or society, which wishes to sell interment spaces or niches to another membership corporation or religious corporation or society, or to an unincorporated association or society pursuant to N.J.S.A. [8A:9-7] 45:27-32, must receive Board approval prior to the sale.

(b) (No change.)

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

1. A copy of the contract of sale, which shall include the names of the parties, the number of [graves] interment spaces or niches to be sold, the location of each, and the sales price;

2. A certified statement by an officer of the selling organization that:

i. (No change.)

ii. The organization will sell the spaces pursuant to N.J.S.A. [8A:9-7] 45:27-32;

iii. The organization is aware that at least 15 percent of the current retail gross sales price [of the interment spaces, or $ 25.00 per grave, whichever is greater,] of comparable graves or at least 10 percent of the current gross sale price of comparable crypts or niches will be deposited into the Maintenance and Preservation Fund of the cemetery company, and the name of the party making such deposit; and

iv. The organization is selling the interment spaces or niches in good faith and does not have any knowledge of any [speculative] intent to resell on the part of the purchaser which would violate N.J.S.A. [8A:9-7] 45:27-32;

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

i. (No change.)

ii. The organization will purchase the spaces pursuant to N.J.S.A. [8A:9-7] 45:27-32;

iii. The organization will resell or give the interment spaces or niches, or the right to use the interment spaces or niches, only to its members, and that the spaces or niches will be provided solely for members and their families;

iv. If the purchaser transfers or resells an interment space or niches, the organization will transmit to the cemetery company for deposit into the Maintenance and Preservation Fund of the cemetery company at least 15 percent of the current retail gross sales price [for similar interment spaces established by the cemetery company at the time of resale, or $ 25.00, whichever is greater,] of comparable graves or at least at least 10 percent of the current gross sale price of comparable crypts or niches but the purchaser shall receive a credit for any money previously paid into the Maintenance and Preservation Fund in connection with the interment space or niche;

v. The organization is purchasing the interment spaces or niches in good faith and does not have any [speculative] intent to resell which would violate N.J.S.A. [8A:9-7] 45:27-32; and

vi. (No change.)

4. A statement by the cemetery company that:

i. It is aware that an amount equal to at least 15 percent of the [sale] current retail gross sales price [for the interment spaces or $ 25.00, whichever is greater,] of comparable graves or at least 10 percent of the current gross sales price of comparable crypts or niches must be deposited into the Maintenance and Preservation Fund of the cemetery company when a membership or religious organization resells its interment spaces or niches in bulk to another membership or religious organization, except that a credit shall be given for any amount previously paid into the Maintenance and Preservation Fund in connection with each particular interment space or niche;

ii. It is aware that, if the purchasing organization resells or transfers an interment space or niche to a member, at least 15 percent of the current retail gross sales price [for an equivalent interment space established by the cemetery company at the time of resale, or $ 25.00, whichever is greater,] of comparable graves, crypts or niches shall be deposited into the Maintenance and Preservation Fund of the cemetery company, less a credit for any money previously paid into the Maintenance and Preservation Fund in connection with that interment space or niche; and

iii. To the best of its knowledge, the transaction is being undertaken in good faith, and neither the selling organization, nor the purchasing organization has [a speculative] an intent to resell which would violate N.J.S.A. [8A:9-7] 45:27-32; and

5. (No change.)

(d) The Board may request additional information from the selling organization, purchasing organization or cemetery company regarding the application for sale to a membership, religious corporation, society or unincorporated association or society which provides interment spaces or niches solely for its members and their families.

13:44J-15.1 Removal of unauthorized monumentation

(a) A cemetery company may remove any memorial, embellishment or impediment that:

1. Has not been authorized by the cemetery company; or

2. Has been altered from the original design that was authorized by the cemetery company.

(b) A cemetery company may recover the cost of removing monumentation pursuant to (a) above.

(c) A cemetery company shall store a removed memorial, embellishment or impediment in a secure manner. The cemetery company may dispose of the memorial, embellishment or impediment one year after a removal if:

1. The owner of the interment space or niche has not taken possession of the memorial, embellishment or impediment; and

2. The cemetery company notifies the Board in writing at least 90 days prior to the disposal.

13:44J-[15.3] 15.2 Removal of [dangerous] unsafe monumentation

(a) A cemetery company may remove [a dangerous monumentation. The cemetery company may place the monumentation on the interment space unless such placement would pose a danger] any authorized memorial, embellishment or impediment that is not safe.

(b) A cemetery company that wishes to remove [dangerous] unsafe monumentation shall:

1. Take pictures of the [dangerous] unsafe monumentation prior to moving and maintain these photographs as part of its records; and

2. [Notify] Within 30 days of the removal, notify the owner [or interested parties] by certified letter, return receipt requested that [dangerous] unsafe monumentation has been moved. [If the letter to the owners is not received, the cemetery shall publish notice of the removal of the monumentation in a newspaper whose circulation includes the county in which the cemetery is located.] Such notification shall state that the owner has the right to apply to the Board within six months of the notification for appropriate relief, such as restoration of monumentation.

[(c) The cemetery company may apply to the Board to dispose of the monumentation six months from the date of notification if it has not heard from the owner, owners or interested parties. Applications should include the reasons for the disposal of the monumentation, proof that the certified letter has been sent to the owner, interested parties and newspaper, photographs of the monumentation from (a) above and an application fee as set forth in N.J.A.C. 13:44J-3.1(a)1v(4).

(d) If the owner, owners, or interested parties believe that the monument was not dangerous, and that the removal was not necessary, they may apply to the Board for its review.

(e) If the Board finds that removal of the monumentation was unnecessary, the Board shall direct the cemetery company to provide monumentation for the space.]

(c) A cemetery company shall store a removed memorial, embellishment or impediment in a secure manner. The cemetery company may dispose of the memorial, embellishment or impediment one year after a removal if:

1. The owner of the interment space or niche has not taken possession of the memorial, embellishment or impediment; and

2. The cemetery company notifies the Board in writing at least 90 days prior to the disposal.

13:44J-15.3 Removal of a memorial for renovation

(a) A cemetery company shall not remove a memorial from an interment space or niche in order to perform renovations of cemetery grounds without Board approval.

(b) A cemetery company that wishes to remove memorials for renovation of cemetery grounds shall submit to the Board:

1. A statement from the cemetery company indicating that it will notify the affected interment space or niche owner of the proposed renovations 30 days prior to the commencement of the renovations;

2. A description of the renovations that would be performed and a list of the memorials that would be removed; and

3. An application fee as set forth in N.J.A.C. 13:44J-3.1(a)1iv(5).

(c) A cemetery company that has been granted approval to remove memorials for renovation of cemetery grounds shall notify affected interment space or niche owners 30 days prior to the commencement of renovations. Publication in a local newspaper circulating in the county in which the interment space or niche is located and posting on the grounds of the cemetery company shall constitute sufficient notice.

(d) A cemetery company need not apply for approval for removal of a memorial for renovation when:

1. The removal is performed pursuant to a request from an interment space or niche owner for repair or improvements; or

2. The removal is performed in response to vandalism, damage by weather or damage caused by other acts of God.

(e) A cemetery company may temporarily remove memorials from interment spaces or niches in order to provide access for equipment and personnel to perform openings and general debris clean-up without the approval of the Board. Memorials that have been removed pursuant to this subsection shall be restored as soon as the opening or clean-up has been completed, but in no case shall a removal last longer than six months.



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