Bill Text: NJ SCR116 | 2012-2013 | Regular Session | Introduced
Bill Title: Determines that proposed Division of Consumer Affairs rules and regulations establishing procedure for waiver of Division of Consumer Affairs rules are inconsistent with legislative intent.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2012-05-31 - Introduced in the Senate, Referred to Senate Commerce Committee [SCR116 Detail]
Download: New_Jersey-2012-SCR116-Introduced.html
Sponsored by:
Senator LINDA R. GREENSTEIN
District 14 (Mercer and Middlesex)
SYNOPSIS
Determines that proposed Division of Consumer Affairs rules and regulations establishing procedure for waiver of Division of Consumer Affairs rules are inconsistent with legislative intent.
CURRENT VERSION OF TEXT
As introduced.
A Concurrent Resolution concerning legislative review of Division of Consumer Affairs regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.
Whereas, Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey provides that the Legislature may review any rule or regulation adopted or proposed by an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement and, upon a finding that the rule or regulation is not consistent with legislative intent, may transmit the finding to the Governor and the head of the agency; and
Whereas, On August 1, 2011, the Division of Consumer Affairs proposed for public comment in the New Jersey Register new rules, proposed to be codified at N.J.A.C.13:45C-2 and N.J.A.C.13:45C-3, to establish a procedure for the waiver of department rules; and
Whereas, The summary of the rule proposal focuses on a discussion of Executive Order No. 2 of 2010 issued by Governor Chris Christie as the reasoning for the proposed new rules and does not provide any support or justification for the proposed rulemaking based on any statutory authority granted to the Division of Consumer Affairs; and
Whereas, The notice of proposal lists four statutory citations as the authority for the rule proposal; however, none of these statutes are discussed in the summary of the rule proposal, none of the statutory references provide the Division of Consumer Affairs with the authority to promulgate one set of rules and regulations in order to waive other rules and regulations previously adopted pursuant to the "Administrative Procedure Act," and none of the statutes referenced authorize the department to establish a procedure for the waiver of other department rules; and
Whereas, According to the rule proposal, the new rules would authorize the Division of Consumer Affairs, all boards, committees, and units within the division, and the Legalized Games of Chance Control Commission "to waive specific regulatory requirements, for the reasons of undue hardship, economic or otherwise" upon request and further allow the Division of Consumer Affairs to issue such waivers without even being requested to do so by the licensee, applicant, or regulated person or business, if requiring strict compliance "would lead to a burdensome, unfair or incongruous result or would endanger the health, safety and welfare of the general public"; and
Whereas, The very laws and regulations the Division of Consumer Affairs is entrusted with enforcing are those designed to protect New Jersey consumers and the public safety; and
Whereas, Granting compliance waivers in such important matters could only serve to threaten and endanger the health, safety and welfare of the general public in its own right; and
Whereas, The proposed regulations would explicitly grant the Division of Consumer Affairs authority to waive enforcement even when the division finds that there is a basis to issue a charge of a violation; and
Whereas, Authorizing such waivers would only serve to undercut the division's chief mission and render the laws passed to safeguard the public safety ineffective and unenforceable; and
Whereas, New Jersey's consumers, licensees, applicants, and regulated persons and businesses would have no guidance on when a waiver may be deemed justified and granted by the division and when they may be held accountable for compliance; and
Whereas, Allowing for enforcement waivers opens the door to inconsistent enforcement of the law and could lead to claims of impropriety; and
Whereas, For all of the above reasons, the proposed rules and regulations to establish a procedure for the waiver of division rules are inconsistent with the statutory authority provided to the Division of Consumer Affairs and would undermine the specific rules and regulations adopted pursuant to the authority granted to the division by the Legislature in specific laws; now, therefore,
Be It Resolved by the Senate of the State of New Jersey (the General Assembly concurring):
1. The Legislature declares that the rules and regulations proposed in the New Jersey Register on August 1, 2011 by the Division of Consumer Affairs to establish a procedure for the waiver of division rules are not consistent with the intent of the Legislature.
2. The Secretary of the Senate and the Clerk of the General Assembly shall transmit a duly authenticated copy of this concurrent resolution to the Governor and the Director of Consumer Affairs and the Attorney General.
3. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Attorney General shall have 30 days following transmittal of this resolution to amend or withdraw the proposed rules and regulations or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.
STATEMENT
This concurrent resolution embodies the finding of the Legislature that the rules and regulations to establish a procedure for the waiver of division rules proposed by the Division of Consumer Affairs for public comment in the New Jersey Register on August 1, 2011 are not consistent with the intent of the Legislature.
The Division of Consumer Affairs does not have the statutory authority to promulgate one set of rules and regulations in order to waive other rules and regulations previously adopted pursuant to the "Administrative Procedure Act," and further, the division does not possess the statutory authority to establish a procedure for the waiver of division rules adopted pursuant to specific statutes.
The Attorney General will have 30 days from the date of transmittal of this resolution to amend or withdraw the proposed rules and regulations, or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.
