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Business and legal groups urge New Jersey to strengthen rulemaking transparency and impact analysis
Summary
At a legislative hearing, lawyers, chambers and industry associations urged revisions to New Jersey's Administrative Procedures Act to centralize rulemaking records at the Office of Administrative Law, lengthen and improve public comment and require stronger, quantified impact statements.
At a hearing of the Assembly Committee on Oversight, Reform and Federal Regulations, business groups, lawyers and industry representatives urged lawmakers to update the New Jersey Administrative Procedures Act to improve transparency, public participation and the evidentiary record agencies must produce when writing rules.
The session opened with committee remarks framing the review of the APA and the need to balance transparency with agencies' ability to implement laws. The first witness, Paul Josephson, a partner at Duane Morris LLP, told the committee the bill under consideration would, among other changes, require agencies to post all public comments to a statewide Office of Administrative Law (OAL) rulemaking database and to expand impact-analysis requirements. "Make an adequate record demonstrating how they're arriving at the decision that they're arriving at," Josephson said, arguing courts should defer to agencies only when they have demonstrated expertise and produced a clear administrative record.
Josephson warned that some proposed changes, including extending minimum public comment periods to 90 days in certain cases, could increase the time needed to adopt rules from about six months to closer to nine months or a year. He proposed shifting the burden of redacting confidential information to commenters, rather than requiring agencies to do extensive redaction work, and recommended resourcing the OAL so the centralized database functions reliably.
Representing the New Jersey State Chamber of Commerce, Michael Eglinton said businesses want predictability and more meaningful early engagement with agencies. He cited permit-modernization work as an example of successful stakeholder collaboration and urged stronger legislative oversight when agencies interpret statutes in ways members believe exceed legislative intent.
Eric Brophy, chair of the government regulatory law group at CSG, echoed that collaboration and supported using the OAL as a single repository for rules and comments to make notices and materials more discoverable for nonlegal audiences.
Ray Kanter of the New Jersey Business & Industry Association urged three reforms: more meaningful stakeholder processes, routine use of pre-proposals and work groups so agencies can correct drafting errors before formal notice, and allowing agencies to make reasonably foreseeable changes after receiving public comments. "We would rather get things done right than getting done fast," Kanter said.
Dan Kennedy, CEO of NAIOP New Jersey, called the APA "confining and archaic" for modern rulemaking. He recommended a searchable central database, direct notice to impacted parties using agency records, and independent, rigorous economic and social impact assessments rather than the short, often pro forma statements currently produced. Kennedy said some proposals (for example, Department of Labor rulemaking) have generated thousands of written comments and that public hearings sometimes are held under conditions that make participation difficult.
Dennis Hart of the Chemistry Council of New Jersey urged longer comment periods for highly technical rules that require stakeholders to hire outside experts and flagged a related concern: agencies increasingly rely on guidance documents rather than formal rulemaking to change practice. He recommended formal pre-proposal processes and a review of how many regulations each agency pursues to prioritize the most important items.
No formal votes or committee actions were taken at the hearing. Witnesses left the committee with a mix of specific recommendations: centralize and properly resource the OAL database; require more detailed, quantified impact and alternatives analysis; consider fee-shifting or other enforcement mechanisms to ensure agencies follow procedural requirements; expand and clarify public-notice and comment rules; and explore structural changes such as more independent administrative law judges.
The committee chair closed the session, thanked those who testified and said the committee will continue to review the proposals; no date was set for further hearings.
