ASSEMBLY, No. 1524

STATE OF NEW JERSEY

215th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION

 


 

Sponsored by:

Assemblyman  JOHN J. BURZICHELLI

District 3 (Cumberland, Gloucester and Salem)

Assemblyman  CRAIG J. COUGHLIN

District 19 (Middlesex)

Assemblyman  PETER J. BARNES, III

District 18 (Middlesex)

Assemblyman  GARY R. CHIUSANO

District 24 (Morris, Sussex and Warren)

 

Co-Sponsored by:

Assemblywoman McHose

 

 

 

 

SYNOPSIS

     Revises “Administrative Procedure Act” concerning conflicts between rules of different State agencies.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act concerning the “Administrative Procedure Act” and amending and supplementing P.L.1968, c.410.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 4 of P.L.1968, c.410 (C.52:14B-4) is amended as follows:

     4.    (a) Prior to the adoption [,] of any new rule, or the amendment, or repeal, or readoption of [any] an existing rule, except as may be otherwise provided, the agency shall:

(1) Prior to delivering the rule proposal to the Office of Administrative Law, determine whether any other agency regulates the activity or has concurrent or conflicting jurisdiction over any aspect of the subject matter.  If any such agencies are identified, the agency considering the proposed rule shall consult with the other agencies to determine each agency’s role in regulating the subject matter and shall also prevent the proposed rule from conflicting with or being inconsistent with any existing rules.  If the agencies cannot resolve any issue relating to concurrent or conflicting jurisdiction, the agency considering the proposal shall advise the director of the impasse.

Following notice of the impasse, the director shall not accept the agency’s rule proposal and shall assign an administrative law judge or other personnel to conduct arbitration, mediation or another form of alternative dispute resolution, which may include a public hearing and the opportunity for public comment, for resolution of the issue. If a resolution cannot be reached within 45 days and the agency proposing the rule wishes to proceed with the matter, the director shall refer the matter, including a written record of the arbitration, mediation or other form of alternative dispute resolution to the Attorney General for resolution of the conflict.  The Attorney General shall issue a written decision, which shall be binding upon the agencies, on the matter within 45 days after receipt from the director.  If the Attorney General finds that the conflict or inconsistency is the result of statutory law, the Attorney General shall send written notice of this finding to the President of the Senate, the Speaker of the General Assembly, and the chairs of the Senate Legislative Oversight Committee and the Assembly Regulatory Oversight and Gaming Committee, or their successors. All documents and decisions issued pursuant to this paragraph shall be considered public records.

For purposes of this paragraph:  a “conflict” arises when an agency seeks to propose a rule, which if complied with, would result in noncompliance with another rule; and “inconsistent” means an agency seeks to propose a rule, which if adopted, would be incompatible with another rule.

     [(1)] (2) Give at least 30 days' notice of its intended action.  The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, and the time when, the place where, and the manner in which interested persons may present their views thereon.  The notice shall be mailed to all persons who have made timely requests of the agency for advance notice of its rule-making proceedings and in addition to other public notice required by law shall be published in the New Jersey Register.  Notice shall also be distributed to the news media maintaining a press office to cover the State House Complex, and made available electronically through the largest nonproprietary cooperative public computer network.  Each agency shall additionally publicize the intended action and shall adopt rules to prescribe the manner in which it will do so, and inform those persons most likely to be affected by or interested in the intended action. Methods that may be employed include publication of the notice in newspapers of general circulation or in trade, industry, governmental or professional publications, distribution of press releases to the news media and posting of notices in appropriate locations.  The rules shall prescribe the circumstances under which each additional method shall be employed;

     [(2)] (3)     Prepare for public distribution at the time the notice appears in the Register a statement setting forth a summary of the proposed rule, a clear and concise explanation of the purpose and effect of the rule, the specific legal authority under which its adoption is authorized, a description of the expected socio-economic impact of the rule, a regulatory flexibility analysis, or the statement of finding that a regulatory flexibility analysis is not required, as provided in section 4 of P.L.1986, c.169 (C.52:14B-19), 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, an agriculture industry impact statement as provided in section 7 of P.L.1998, c.48 (C.4:1C-10.3), and a housing affordability impact statement and a smart growth development impact statement, as provided in section 31 of P.L.2008, c.46 (C.52:14B-4.1b);

     [(3)] (4)     Afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing.  The agency shall consider fully all written and oral submissions respecting the proposed rule.  If within 30 days of the publication of the proposed rule sufficient public interest is demonstrated in an extension of the time for submissions, the agency shall provide an additional 30 day period for the receipt of submissions by interested parties.  The agency shall not adopt the proposed rule until after the end of that 30 day extension.

     The agency shall conduct a public hearing on the proposed rule at the request of a committee of the Legislature, or a governmental agency or subdivision, or if sufficient public interest is shown, provided such request is made to the agency within 30 days following publication of the proposed rule in the Register.  The agency shall provide at least 15 days' notice of such hearing, which shall be conducted in accordance with the provisions of subsection (g) of this section.

     The head of each agency shall adopt as part of its rules of practice adopted pursuant to section 3 of P.L.1968, c.410 (C.52:14B-3) definite standards of what constitutes sufficient public interest for conducting a public hearing and for granting an extension pursuant to this paragraph; and

     [(4)] (5)     Prepare for public distribution a report listing all parties offering written or oral submissions concerning the rule, summarizing the content of the submissions and providing the agency's response to the data, views and arguments contained in the submissions.

     (b)   A rule prescribing the organization of an agency may be adopted at any time without prior notice or hearing.  Such rules shall be effective upon filing in accordance with section 5 of P.L.1968, c.410 (C.52:14B-5) or upon any later date specified by the agency.

     (c)   If an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 30 days' notice and states in writing its reasons for that finding, and the Governor concurs in writing that an imminent peril exists, it may proceed without prior notice or hearing, or upon any abbreviated notice and hearing that it finds practicable, to adopt the rule.  The rule shall be effective for a period of not more than 60 days unless each house of the Legislature passes a resolution concurring in its extension for a period of not more than 60 additional days.  The rule shall not be effective for more than 120 days unless repromulgated in accordance with normal rule-making procedures.

     (d)   No rule hereafter adopted is valid unless adopted in substantial compliance with P.L.1968, c.410 (C.52:14B-1 et seq.). A proceeding to contest any rule on the ground of noncompliance with the procedural requirements of P.L.1968, c.410 (C.52:14B-1 et seq.) shall be commenced within one year from the effective date of the rule.

     (e)   An agency may file a notice of intent with respect to a proposed rule-making proceeding with the Office of Administrative Law, for publication in the New Jersey Register at any time prior to the formal notice of action required in subsection (a) of this section. The notice shall be for the purpose of eliciting the views of interested parties on an action prior to the filing of a formal rule proposal.  An agency may use informal conferences and consultations as means of obtaining the viewpoints and advice of interested persons with respect to contemplated rule-making. An agency may also appoint committees of experts or interested persons or representatives of the general public to advise it with respect to any contemplated rule-making.

     (f)    An interested person may petition an agency to adopt a new rule, or amend or repeal any existing rule.  Each agency shall prescribe by rule the form for the petition and the procedure for the submission, consideration and disposition of the petition. The petition shall state clearly and concisely:

     (1)   The substance or nature of the rule-making which is requested;

     (2)   The reasons for the request and the petitioner's interest in the request;

     (3)   References to the authority of the agency to take the requested action.

     The petitioner may provide the text of the proposed new rule, amended rule or repealed rule.

     Within 60 days following receipt of any such petition, the agency shall either; (i) deny the petition, giving a written statement of its reasons; (ii) grant the petition and initiate a rule-making proceeding within 90 days of granting the petition; or (iii) refer the matter for further deliberations which shall be concluded within 90 days of referring the matter for further deliberations.  Upon conclusion of such further deliberations, the agency shall either deny the petition and provide a written statement of its reasons or grant the petition and initiate a rule-making proceeding within 90 days.  Upon the receipt of the petition, the agency shall file a notice stating the name of the petitioner and the nature of the request with the Office of Administrative Law for publication in the New Jersey Register. Notice of formal agency action on such petition shall also be filed with the Office of Administrative Law for publication in the Register.

     If an agency fails to act in accordance with the time frame set forth in the preceding paragraph, upon written request by the petitioner, the director of the Office of Administrative Law shall order a public hearing on the rule-making petition and shall provide the agency with a notice of the director's intent to hold the public hearing if the agency does not.  If the agency does not provide notice of a hearing within 15 days of the director's notice, the director shall schedule and provide the public with a notice of that hearing at least 15 days prior thereto.  If the public hearing is held by the Office of Administrative Law, it shall be conducted by an administrative law judge, a person on assignment from another agency, a person from the Office of Administrative Law assigned pursuant to subsection o. of section 5 of P.L.1978, c.67 (C.52:14F-5), or an independent contractor assigned by the director.  The petitioner and the agency shall participate in the public hearing and shall present a summary of their positions on the petition, a summary of the factual information on which their positions on the petition are based and shall respond to questions posed by any interested party.  The hearing procedure shall otherwise be consistent with the requirements for the conduct of a public hearing as prescribed in subsection (g) of section 4 of P.L.1968, c.410 (C.52:14B-4), except that the person assigned to conduct the hearing shall make a report summarizing the factual record presented and the arguments for and against proceeding with a rule proposal based upon the petition.  This report shall be filed with the agency and delivered or mailed to the petitioner.  A copy of the report shall be filed with the Legislature along with the petition for rule-making.

     (g)   All public hearings shall be conducted by a hearing officer, who may be an official of the agency, a member of its staff, a person on assignment from another agency, a person from the Office of Administrative Law assigned pursuant to subsection o. of section 5 of P.L.1978, c.67 (C.52:14F-5) or an independent contractor.  The hearing officer shall have the responsibility to make recommendations to the agency regarding the adoption, amendment or repeal of a rule. These recommendations shall be made public.  At the beginning of each hearing, or series of hearings, the agency, if it has made a proposal, shall present a summary of the factual information on which its proposal is based, and shall respond to questions posed by any interested party. Hearings shall be conducted at such times and in locations which shall afford interested parties the opportunity to attend.  A verbatim record of each hearing shall be maintained, and copies of the record shall be available to the public at no more than the actual cost, which shall be that of the agency where the petition for rule-making originated.

(cf: P.L.2008, c.46, s.3)

 

2.  (New section) a. In the instance of an alleged conflict or inconsistency among adopted rules of different agencies, as set forth in section 4 of P.L.1968, c.410 (C.52:14B-4) an interested or affected person or agency may petition the director for resolution. The Office of Administrative Law shall adopt a rule prescribing the form and procedure for the submission of the petition pursuant to this section.  The petition shall state clearly and concisely the substance or nature of the alleged conflict and the petitioner’s interest in the conflict or inconsistency.  If, upon receipt of a petition, it is determined by the director that a conflict or inconsistency exists, the director shall assign an administrative law judge or other personnel to conduct arbitration, mediation or another form of alternative dispute resolution, which may include a public hearing and the opportunity for public comment, on the matter raised in the petition.  If a resolution cannot be reached within 45 days, the director shall refer the matter, including a written record of the arbitration, mediation or other form of alternative dispute resolution to the Attorney General.  The Attorney General shall issue a written decision, which shall be binding, on the matter within 45 days after receipt from the director.  If the Attorney General finds that the conflict or inconsistency is the result of statutory law, the Attorney General shall send written notice of this finding to the President of the Senat, the Speaker of the General Assembly, and the chairs of the Senate Legislative Oversight Committee and the Assembly Regulatory Oversight and Gaming Committee, or their successors. All documents and decisions issued pursuant to this paragraph shall be considered public records.

     b. For the purposes of this section:  “conflict” and “inconsistent” mean the same as those terms are defined in paragraph (1) of subsection (a) of section 4 of P.L.1968, c.410 (C.52:14B-4).

 

     3.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill revises the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) (APA) to establish two procedures by which conflicts or inconsistencies between rules of different agencies can be resolved.

     This bill requires an agency, prior to proposing a new rule, or proposing the amendment, repeal or readoption of an existing rule, to determine whether any other agency regulates the activity or has concurrent or conflicting jurisdiction over any aspect of the subject matter.  If a conflict or concurrent jurisdiction is found, the agency considering the proposed rule would be required to consult with the other agencies to determine each agency’s role in regulating the subject matter and would be required to prevent the proposed rule from conflicting with or being inconsistent with any existing rules.  If a conflict among agencies cannot be resolved, the agency considering the proposal would advise the director of the Office of Administrative Law (OAL) of the impasse, at which point the director would assign an administrative law judge (ALJ) or other personnel to conduct arbitration, mediation or another form of alternative dispute resolution, which may include a public hearing and the opportunity for public comment, for resolution of the issue.

     In addition, this bill establishes a procedure whereby an interested or affected party or agency may petition the OAL director for resolution of an alleged conflict or inconsistency among adopted rules of different agencies.  Upon receipt of a petition, the director would determine if a conflict or inconsistency exists.  If so, the director would assign an administrative law judge (ALJ) or other personnel to conduct arbitration, mediation or another form of alternative dispute resolution, which may include a public hearing and the opportunity for public comment, on the matter raised in the petition.

     Under both procedures established by the bill: (1) if a resolution of the issue cannot be reached through arbitration, mediation or another form of alternative dispute resolution, the director would refer the matter to the Attorney General, and the Attorney General would have 45 days to issue a written, binding, decision; (2) if the Attorney General finds that the conflict or inconsistency is the result of statutory law, the Attorney General is directed to send written notice of this finding to the President of the Senate, the Speaker of the General Assembly, and the chairs of the Senate Legislative Oversight Committee and the Assembly Regulatory Oversight and Gaming Committee, or their successors, and (3) all documents and decisions resulting from the procedure would be considered public records.