Rule Proposal

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VOLUME 49, ISSUE 16
ISSUE DATE: AUGUST 21, 2017
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY CEMETERY BOARD

Proposed Amendments: N.J.A.C. 13:44J-2.1, 9.1, and 13.1

Proposed New Rules: N.J.A.C. 13:44J-9.1 through 9.11 and 13.8

Click here to view Interested Persons Statement

Crematories
 
Authorized By: The New Jersey Cemetery Board, Quin Archer, Executive Director.
 
Authority: N.J.S.A. 45:27-4 and 39.
 
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
 
Proposal Number: PRN 2017-196.
 
Submit comments by October 20, 2017, to:
 
   Quin Archer, Executive Director
   New Jersey Cemetery Board
   PO Box 45031
   Newark, NJ 07101
   or electronically at: http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx.
 
The agency proposal follows:
 
Summary

P.L. 2011, c. 230, which amended the New Jersey Cemetery Act, 2003 (N.J.S.A. 45:27-1 et seq.), required that crematories must be located on dedicated cemetery property. The law authorizes the Cemetery Board (Board) to draft rules regarding the operation of crematories. The Board proposes amendments and new rules in N.J.A.C. 13:44J to effectuate P.L. 2011, c. 230.

The definition of "cemetery" in N.J.A.C. 13:44J-2.1 is proposed for amendment to conform to statutory changes in the definition of "cemetery" in N.J.S.A. 45:27-2.

The Board proposes to amend the heading of Subchapter 9 to indicate that proposed new rules in the subchapter detail requirements for operating crematories. Proposed new N.J.A.C. 13:44J-9.1 sets forth the purpose and scope of Subchapter 9. The proposed rule also provides a definition for "operators," which are governmental entities, cemetery companies, and religious corporations or organizations that operate crematories.

Existing N.J.A.C. 13:44J-9.1 is proposed for recodification as N.J.A.C. 13:44J-9.12. The rule is proposed for amendment for clarity and to permit cremated human remains to be shipped by certified mail and to remove a requirement that shipped cremated human remains be insured.

Proposed new N.J.A.C. 13:44J-9.2 prescribes the records that operators must maintain about cremations. These records must be kept for at least seven years from the date of the cremation and must be made available to the Board upon request. Proposed new N.J.A.C. 13:44J-9.3 sets forth the information that must be provided by a funeral home on an authorization and receipt form or forms before an operator can perform a cremation. The rule also sets forth the information an operator must provide on the authorization and receipt form or forms and requires the operator to provide a copy of the form to the funeral director who delivered the human remains for cremation. The authorization and receipt form or forms must be maintained as part of an operator's records.

Proposed new N.J.A.C. 13:44J-9.4 requires operators to maintain a log of inspections of, and maintenance on, cremation units or retorts. Proposed new N.J.A.C. 13:44J-9.5 sets forth standards for caskets or containers for human remains that are to be cremated. Proposed new N.J.A.C. 13:44J-9.6 requires operators to have a storage facility for human remains that cannot be immediately cremated. Caskets or containers in a storage facility cannot be placed on the floor of the facility. If un-embalmed human remains are being stored for more than 24 hours, they must be placed in a refrigerated facility or temporarily entombed.

Proposed new N.J.A.C. 13:44J-9.7 requires operators to appoint an employee or employees responsible for accepting remains for a cremation. The new rule sets forth the responsibilities of this employee. The proposed rule requires operators to ensure that human remains are identified through at least two different methods. Proposed new N.J.A.C. 13:44J-9.8 sets forth the actions an operator must perform during a cremation. Proposed new N.J.A.C. 13:44J-9.9 details requirements for removing and processing cremated human remains. Proposed new N.J.A.C. 13:44J-9.10 sets forth requirements for transferring cremated human remains to a container after cremation. The proposed rule also addresses labeling the container. Proposed new N.J.A.C. 13:44J-9.11 requires operators to notify the Board if a crematory is expanded, replaced, or closed.

N.J.A.C. 13:44J-13.1(f)9 exempts an independently run crematory from maintenance and preservation fund requirements. The Board proposes to amend N.J.A.C. 13:44J-13.1(f)9 to remove the exemption for crematories because P.L. 2011, c. 230 deleted the statutory authorization for this exemption and the law now requires that crematories be located on dedicated cemetery property. Proposed new N.J.A.C. 13:44J-13.8 sets forth the information required for an application for approval to construct a crematory and requires the Board to notify the Department of Health of applications it has received.

As the Board has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.
 
[page=2758] Social Impact

The proposed amendments and new rules will have a positive impact on those who arrange for the cremation of human remains. The proposed new rules and amendments establish standards for cremations that will help to ensure that cremations are done in a respectful manner and that human remains are accurately identified throughout the cremation process.
 
Economic Impact

The proposed new rules and amendments will have economic impact on entities that seek to open new crematories. Such entities will incur the cost of preparing the documents necessary to apply for Board approval. Operators will incur the cost of maintaining the records required by N.J.A.C. 13:44J-9.2 and 9.4. The Board anticipates that many, if not all, operators are currently maintaining records that are substantially similar to those required by the rules.
 
Federal Standards Statement

A Federal standards analysis is not required because the proposed amendments and new rules are not subject to any Federal standards or requirements.
 
Jobs Impact

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

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

Since operators will be individually authorized to operate crematories by the Board, under the Regulatory Flexibility Act (Act), N.J.S.A. 52:14B-16 et seq., they may be considered "small businesses" for the purposes of the Act.

The costs imposed on small businesses are the same as those imposed on all businesses as outlined in the Economic Impact statement. The Board does not believe that operators will need to employ any professional services to comply with the proposed new rules and amendments. The proposed new rules and amendments impose compliance, recordkeeping, and reporting requirements on operators as explained in the Summary. The Board believes that since the proposed new rules and amendments protect the public by providing for the proper operation of crematories, the rules should be applied uniformly to all operators regardless of the size of the business.
 
Housing Affordability Impact Analysis

The proposed new rules and amendments will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the proposed new rules and amendments concern the operation of crematories.
 
Smart Growth Development Impact Analysis

The proposed new rules and amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the regulation would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed new rules and amendments concern the operation of crematories.
 
Full text of the proposal follows (additions in boldface thus; deletions indicated in brackets [thus]):
 
SUBCHAPTER 2.    DEFINITIONS
 
13:44J-2.1     Definitions
 
The following words and terms, when used in this chapter, shall have the following meanings:
 
. . .
 
"Cemetery" means any land or place used or dedicated for use for burial of human remains, cremation of human remains, or disposition of cremated human remains[, and also includes a crematory located on dedicated cemetery property].
 
. . .
 
SUBCHAPTER 9.    CREMAINS AND CREMATORIES
 
13:44J-9.1         Purpose and scope; definitions
 
(a) The purpose of this subchapter is to implement the provisions of P.L. 2011, c. 230, which requires that crematories be located on dedicated cemetery property.
 
(b) This subchapter shall apply to all crematories except for those operated in conjunction with funeral homes that were established prior to December 1, 1971.
 
(c) For purposes of this subchapter, "operator" means a cemetery company, governmental entity, or a religious corporation or organization that operates a crematory.
 
13:44J-9.2         Crematory records
 
(a) An operator that performs cremations shall maintain records for each cremation that includes the information required by N.J.S.A. 45:27-19.d.
 
(b) Cremation records shall be kept for at least seven years from the date of the cremation.
 
(c) An operator shall make records maintained pursuant to (a) above available to the Board upon request.
 
13:44J-9.3         Authorization and receipt form(s) for cremations
 
(a) An operator shall not perform a cremation unless the following information has been provided by a funeral director on an authorization and receipt form(s):
 
1. Name of the decedent;
 
2. Last residence of decedent, if known;
 
3. Decedent's date of birth and the date, time, and place of death;
 
4. Whether the death was due to an infectious or contagious disease, if known;
 
5. A statement that any surgical implants that must be removed prior to cremation have been removed;
 
6. Whether the decedent received radiation therapy, the type of radiation therapy, and the date it was provided;
 
7. Name, address, relationship to decedent, and the signature of individual or individuals authorizing cremation;
 
8. Name and address of the funeral home from which the remains were received for cremation;
 
9. Name, license number, and signature of the funeral director for the funeral home from which the remains were received for cremation and a certification of the contents of the casket or container signed by the funeral director; and
 
10. Planned disposition of cremated human remains and date on which this disposition will occur.
 
(b) Upon delivery of human remains to a crematory, the operator shall record the following information on the authorization and receipt form(s):
 
1. Date and time remains were received by the operator;
 
2. Type of casket or container;
 
3. The number of the metal identification disc issued by the operator;
 
4. Signature of person responsible for taking custody of the remains for the operator; and
 
5. Signature of funeral director delivering the remains to the operator.
 
(c) After providing the information required by (b) above, the operator shall provide a copy of the authorization and receipt form(s) to the funeral director who delivered the human remains to the crematory and shall maintain a copy of the form as part of the operator's records for at least seven years from the date of the cremation.
 
13:44J-9.4         Maintenance logs
 
(a) An operator shall maintain a log of inspections, preventative maintenance, scheduled maintenance, and emergency maintenance on cremation units or retorts.
 
(b) Logs shall be retained for at least seven years from the date the last maintenance or inspection was provided.
 
13:44J-9.5         Caskets and containers
 
(a) An operator shall only accept for cremation a decedent's remains if they are in a casket or container that is:
 
[page=2759] 1. Totally enclosed;
 
2. Rigid;
 
3. Has no evidence of leaking; and
 
4. Made up of materials that will not emit hazardous or toxic elements upon combustion.
 
(b) An operator shall not perform a cremation if a casket or container has a zinc liner or is made of copper, bronze, fiberglass, plastic, Styrofoam, or polystyrene.
 
(c) Handles or ornaments that will interfere with a cremation or cause visible emission release shall be removed prior to cremation.
 
13:44J-9.6         Storage facilities
 
(a) An operator shall have a storage facility for human remains that cannot be immediately cremated because cremation equipment is being used for other cremations. Such facilities shall be easily accessible from the area where cremations are performed.
 
(b) A casket or container in a storage facility shall be placed on its own shelf or rack. A casket or container shall not be placed on the floor.
 
(c) Un-embalmed human remains kept for more than 24 hours shall either be placed in a refrigerated storage facility or be temporarily entombed.
 
13:44J-9.7         Receiving remains for cremation
 
(a) An operator shall appoint an employee or employees who are responsible for accepting human remains for cremation.
 
(b) A person appointed pursuant to (a) above shall, prior to accepting human remains, review and inspect the following:
 
1. Cremation authorization and receipt form(s) that contains the information required by N.J.A.C. 13:44J-9.3;
 
2. Cremation permit required by N.J.A.C. 8:9 Appendix A; and 3. The casket or container to ensure it complies with the requirements of N.J.A.C. 13:44J-9.5.
 
(c) A person appointed pursuant to (a) above shall:
 
1. Prepare and sign the authorization and receipt form(s) pursuant to N.J.A.C. 13:44J-9.3 and provide a copy to the funeral director delivering the decedent's remains to the crematory;
 
2. Ensure that the name of the decedent and funeral home are clearly marked on the casket or container; and
 
3. Attach a copy of the authorization and receipt form(s) to the casket or container.
 
(d) An operator shall ensure that, from the time human remains have been delivered to the crematory until such time as the cremated human remains are released, the remains are identified through at least two separate means, one of which is a metal identification disc, in order to prevent the misidentification of remains.
 
13:44J-9.8         Cremations
 
(a) During a cremation, the operator shall ensure that someone is monitoring the cremation and temperatures.
 
(b) Upon the completion of a cremation, an operator shall ensure that cremated human remains and casket or container residue are inspected to establish that the cremation process is completed prior to starting the cool down of the cremation unit or retort.
 
13:44J-9.9         Removing and processing cremated human remains and casket or container residue
 
(a) Prior to removing cremated human remains and casket or container residue, an operator shall ensure that the metal identification disc is checked against the authorization and receipt form(s).
 
(b) Noncombustible material shall be removed from cremated human remains and casket or container residue.
 
13:44J-9.10       Temporary containers and packaging
 
(a) After processing pursuant to N.J.A.C. 13:44J-9.9, cremated human remains and casket or container residue shall be transferred to a leak-proof container. No other material shall be placed in the container without written instructions from the individual authorizing the cremation.
 
(b) The operator shall affix a label to the container with the decedent's name and the date of the cremation.
 
(c) Prior to affixing the label to the container pursuant to (b) above, the operator shall ensure that the metal identification disc, authorization and receipt form(s), and label are checked for consistency and accuracy.
 
13:44J-9.11       Notification
 
An operator shall notify the Board of any expansion, replacement, or closure of a crematory.
 
13:44J-[9.1]9.12         Shipment of cremated human remains
 
[A cemetery company] An operator may ship [cremains] cremated humans through the U.S. Postal System, using registered or certified mail, return receipt, or any other parcel service [which] that provides a delivery document. The [cemetery company] operator shall label both the inside container and outside wrapper to identify the contents as cremated human remains. The [cremains] cremated human remains shall be securely packaged [and insured].
 
SUBCHAPTER 13.  APPLICATIONS
 
13:44J-13.1   Application for certificate of authority
 
(a)-(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.-8. (No change.)
 
9. A statement and supporting evidence, if any, that the cemetery company is financially able to establish a Maintenance and Preservation Fund of $ 75,000 pursuant to the requirements of N.J.S.A. 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] that has been engaged in the operation of a cemetery prior to December 1, 1971, shall not be required to provide such a statement.
 
(g)-(k) (No change.)
 
13:44J-13.8     [(Reserved)] Application for approval to construct a crematory
 
(a) Construction of a crematory shall not begin without, in addition to any other statutory or regulatory requirements, prior Board approval.
 
(b) An entity that wishes to construct a crematory shall submit to the Board:
 
1. A completed application for approval to construct a crematory;
 
2. Construction plans for the crematory;
 
3. A copy of the authorization and receipt form(s) for cremations;
 
4. Procedures for conducting cremations; and
 
5. Rules and price lists regarding cremations.
 
(c) Upon receipt of an application for approval to construct a crematory, the Board shall notify the Department of Health that it has received the application.