N.J. Admin. Code § 1:30-5.1

Current through Register Vol. 56, No. 11, June 3, 2024

Section 1:30-5.1 - Notice of proposed rule

(a) Where the law requires that an agency give notice of its rulemaking proceedings, the agency shall prepare a "notice of proposal" and submit the notice to the OAL. The notice of proposal shall comply with the requirements of this section.

(b) The notice of proposal shall include a heading, which shall include, in the following order:

1. The heading of the Administrative Code Title affected (for example, the heading of Title 19 is "Other Agencies");

2. The element within the proposing agency (for example, the Division or Bureau) originating the notice;

3. A caption describing the subject matter of what is proposed;

4. A suggested N.J.A.C. citation for any proposed new rule and the existing citation for any rule(s) proposed for amendment, repeal, or readoption;

5. After "Authorized By:", the name of the adopting agency head and agency and the signature of the adopting agency head or other authorized signatory as provided in 1:30-2.4;

6. After "Authority:", a citation to the specific N.J.S.A. statutory authority for the proposal or the Public Law number if an N.J.S.A. citation is unavailable. An agency may not cite its general statutory authority unless specific legal authority is unavailable and the agency is relying on its general or residual powers, in which case a statement to that effect shall be made in the Summary;

7. After "Calendar Reference:", the New Jersey Register publication date and citation of the rulemaking calendar most recently prior to the anticipated publication date of the notice of proposal.

i. If the rulemaking is excepted from the prior calendar listing requirement under 1:30-3.3(a), this heading item shall reference the notice Summary. The Summary shall contain the explanation of the exception required under 1:30-3.3(b). For example, the heading item may read, "Calendar Reference: See Summary below for explanation of exception to calendar requirement.";

8. An item headed "Proposal Number:", which shall be completed by the OAL; and

9. An announcement of the public's opportunity to be heard regarding the proposal, which shall include:

i. When, where, and how persons may present their views orally or in writing;

ii. When and where persons may attend any formal rule adoption proceeding;

iii. The name and address of the person(s) to receive paper comments submitted through the mail and, if an agency intends to receive oral comments telephonically, the telephone number of the person(s) to receive such comments;

iv. An address to which comments may be submitted through the agency's e-mail system or, if designed to receive messages, electronic mailing list; and

v. If the agency chooses to accept comments by electronic facsimile, a facsimile telephone number (FAX number).

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

1. A "Summary" statement of the proposed rulemaking with a clear and concise explanation of its purpose and effect. The summary shall describe, detail, and identify:

i. Who and what will be affected by the proposal;

ii. How, when, and where the effect will occur;

iii. What the rulemaking prescribes, proscribes, or otherwise mandates;

iv. What enforcement mechanisms and sanctions may be involved; and

v. Any other relevant or pertinent information;

2. A "Social Impact" statement, which describes the expected social impact of the proposed rulemaking on the public, particularly on any segments of the public proposed to be regulated, and including any proposed or expected differential impact on different segments of the public, including the rulemaking action, and justification therefor;

3. An "Economic Impact" statement, which describes the expected costs, revenues, and other economic impact upon governmental bodies of the State, and particularly any segments of the public proposed to be regulated;

4. A "Federal Standards Statement" (or a "Federal Standards Analysis"), which addresses whether the rule(s) in the notice of proposal contain standards or requirements that exceed standards or requirements imposed by Federal law. The analysis shall apply to any new, readopted, or amended rule(s) under the authority of or in order to implement, comply with, or participate in any program established under Federal law or under a State statute that incorporates or refers to Federal law, standards, or requirements.

i. Rules that are not subject to any Federal standards or requirements shall be accompanied by a statement to that effect and that a Federal standards analysis is not applicable to the rulemaking.

ii. Rules that contain standards or requirements that do not exceed or are the same as Federal standards or requirements shall be accompanied by a statement that cites the Federal standards or requirements and states that the standards or requirements of the rule do not exceed or are the same as those imposed by Federal law.

iii. Rules that exceed standards or requirements imposed by Federal law, notwithstanding the Federal government's determination that lesser standards or requirements are appropriate, shall be accompanied by an analysis, which contains the following:

(1) A discussion of the agency's policy reasons for imposing standards or requirements that exceed those required by Federal law;

(2) A cost-benefit analysis that supports the agency's decision to impose standards or requirements that exceed those required by Federal law;

(3) A discussion that supports the fact that the agency standard or requirement to be imposed is achievable under current technology; and

(4) A certification by the agency head that the analysis permits the public to understand accurately and plainly the purposes and expected consequences of the new, readopted, or amended rule;

5. A "Jobs Impact" statement, which shall include an assessment of the number of jobs to be generated or lost if the proposed rule takes effect;

6. An "Agriculture Industry Impact" statement setting forth the nature and extent of the impact of the proposed rule on the agriculture industry;

7. A "Regulatory Flexibility Statement" (or "Regulatory Flexibility Analysis"):

i. All rules that impose reporting, recordkeeping, or other compliance requirements on small businesses shall include a regulatory flexibility analysis that describes the methods utilized to minimize any adverse economic impact on small businesses.

ii. "Small business" means any business that is resident in New Jersey, independently owned and operated, not dominant in its field, and that employs fewer than 100 full-time employees.

iii. Rules that do not impose reporting, recordkeeping, or other compliance requirements on small businesses shall be accompanied by a regulatory flexibility statement that indicates that no such requirements are imposed, and the basis for that finding.

iv. Rules that impose reporting, recordkeeping, or other compliance requirements on small businesses shall include in the regulatory flexibility analysis with as much quantification as is practical or reliable, the following:

(1) A description of the types and an estimate of the number of small businesses to which the rule will apply;

(2) A description of the reporting, recordkeeping, and other compliance requirements, and the kinds of professional services likely to be needed to comply with the requirements;

(3) An estimate of the initial capital costs, and an estimate of the annual compliance costs, with an indication of any likely variation on small businesses of differing types and sizes; and

(4) An indication of how the rule is designed to minimize any adverse economic impact on small businesses.

v. To indicate how the rule is designed to minimize any adverse economic impact on small businesses, the following approaches shall be considered in the regulatory flexibility analysis:

(1) The establishment of differing compliance or reporting requirements or timetables that take into account resources available to small businesses;

(2) The use of performance rather than design standards; and/or

(3) An exemption from coverage by all or part of the rule, provided that the public health, safety, or general welfare is not endangered. A finding of endangerment shall explain the relationship between the regulatory requirement that cannot be exempted and the public health, safety, or general welfare.

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

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

i. An analysis under this paragraph shall not include the descriptions required under (c)8 above if the proposing agency finds that the rulemaking would impose an insignificant impact on the affordability of housing and there is an extreme unlikelihood that the rulemaking would evoke a change in the average costs associated with housing. The agency's finding and an indication of the basis for its finding shall be included in the analysis;

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

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

10. A "Racial and Ethnic Community Criminal Justice and Public Safety Impact" statement that shall set forth whether the rulemaking will have an impact on pretrial detention, sentencing, probation, or parole policies concerning juveniles and adults in the State. If the rulemaking will have any of the noted impacts, the statement shall indicate:

i. How the rulemaking would affect racial and ethnic minorities;

ii. Whether the rulemaking is likely to have a disproportionate or unique impact on the racial or ethnic communities;

iii. The rationale for the rulemaking having an identifiable impact on racial and ethnic persons in the State; and

iv. Any anticipated impact upon:

(1) Correctional facilities and services for racial and ethnic minorities;

(2) The adjudication of criminal and juvenile justice matters involving racial and ethnic communities; and/or

(3) The public safety in racial and ethnic communities and the victims and potential victims in those communities.

(d) The notice of proposal shall include the full text of the proposed new rule or amendment, specifically indicating additions and/or deletions.

N.J. Admin. Code § 1:30-5.1

Amended by47 N.J.R. 1311(b), Effective 6/15/2015

Amended by 50 N.J.R. 1433(a), effective 6/18/2018