DOS-36-13-00004-A Pet Cemeteries Seeking to Inter the Cremated Remains of Pet Owners

6/18/14 N.Y. St. Reg. DOS-36-13-00004-A

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 24

June 18, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

NOTICE OF ADOPTION

 

I.D No. DOS-36-13-00004-A

Filing No. 456

Filing Date. Jun. 03, 2014

Effective Date. s , 60 d

Pet Cemeteries Seeking to Inter the Cremated Remains of Pet Owners

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of section 201.19 to Title 19 NYCRR.

Statutory authority:

Executive Law, section 91; General Business Law, section 750-d; Not-for-Profit Corporation Law, section 1504(c)

Subject:

Pet cemeteries seeking to inter the cremated remains of pet owners.

Purpose:

To permit pet cemeteries to inter the cremated remains of pet owners with the remains of their pets.

Text of final rule:

A new section 201.19 is added to Title 19 NYCRR Part 201 to read as follows:

Section 201.19 Disposition of Cremains at Pet Cemeteries.

The owner of private property on which a pet cemetery licensed pursuant to General Business Law article 35-C is located and operated, and the operator of such pet cemetery may permit the disposition of cremains, as defined in N-PCL section 1502(i), in such pet cemetery without acting as a cemetery and without violating N-PCL Article 15 and 19 NYCRR Parts 200 and 201 if:

(a) neither the property owner nor the pet cemetery identifies, advertises, or otherwise promotes the pet cemetery or the property as a place for disposition of cremains;

(b) neither the property owner nor the pet cemetery solicits, encourages or entices customers of the pet cemetery to dispose of cremains in the pet cemetery;

(c) neither the property owner nor the pet cemetery charges a fee in relation to the disposition of cremains;

(d) customers seeking to dispose of cremains in the pet cemetery are charged the same amounts for lots and for the disposition of pet remains as are charged to customers who do not seek to dispose of cremains in the pet cemetery;

(e) the pet cemetery provides the following printed notice: 1) when a customer inquires about disposing of cremains in the pet cemetery, but before the customer commits to purchasing a lot with the right to dispose of cremains; and 2) when a person with custody or control over cremains makes arrangements for the disposition of the cremains at the pet cemetery, but before such arrangements are finalized. The printed notice must be in fourteen point bold font and must be contained in a document separate from all other forms and documents provided to the customer or the person making arrangements:

“This property is not a cemetery for human cremains.

Cremains disposed of on this property WILL NOT be covered by the protections and legal rights granted by New York State Law to cremains disposed of in a cemetery.

The family and descendants of the deceased WILL NOT be covered by the protections and legal rights granted by New York State Law to the family and descendants of deceased persons whose cremains are disposed of in a cemetery such as mandatory records of burials, rights of memorialization and restrictions on removals.

There is NO ASSURANCE under New York State Law that this property will be maintained in its current condition and for its current purpose.

There is NO ASSURANCE under New York State Law that this property will not be sold or transferred to another owner, or that access to this property will remain open to you, the family or the descendants of the deceased.

There is NO ASSURANCE under New York State Law that any burial plots or memorials for cremains on this property will be maintained or preserved for any period of time.

There is NO ASSURANCE under New York State Law that any cremains disposed of on this property will remain for any period of time in the location they were disposed, or on this property at all.”

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 201.19(a), (c), (d) and (e).

Text of rule and any required statements and analyses may be obtained from:

Antonio Milillo, Department of State, Office of General Counsel, One Commerce Plaza, 99 Washington Ave., Albany, NY 12231, [phone], email: [e-mail]

Revised Regulatory Impact Statement

Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement. No substantial revisions have been made to the proposed rule. Each section cited on the Notice of Adoption form for the purpose of indicating the location of a non-substantive change refer exclusively to replacing the word “disposal” with “disposition.” It is clear that such changes do not necessitate a modification to the previously published Regulatory Impact Statement.

Revised Regulatory Flexibility Analysis

Changes made to the last published rule do not necessitate revision to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Governments. No substantial revisions have been made to the proposed rule. Each section cited on the Notice of Adoption form for the purpose of indicating all non-substantive changes refer exclusively to changes made throughout the text to replace the word “disposal” with “disposition.” It is clear that such changes do not necessitate a modification to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Governments.

Revised Rural Area Flexibility Analysis

Changes made to the last published rule do not necessitate revision to the previously published Rural Area Flexibility Analysis. No substantial revisions have been made to the proposed rule. The sections cited on the Notice of Adoption form for the purpose of indicating the locations of all non-substantive changes refer exclusively to changes throughout the text where the word “disposal” has been replaced with the word “disposition.” It is clear that such changes do not necessitate a modification to the previously published Rural Area Flexibility Analysis.

Revised Job Impact Statement

A Job Impact Statement was not required for the regulation as initially proposed because it was evident from the nature and purpose of the regulation that it would neither create nor eliminate employment positions and/or opportunities, and therefore would have no adverse impact on jobs or employment opportunities in New York State. No substantial revisions have been made to the text of the rule since its initial proposal. The changes made to the last published rule are non-substantive and do not necessitate the creation of a Job Impact Statement. Each section listed on the Notice of Adoption form for the purpose of indicating non-substantive changes refers exclusively to changes made in the proposed text to replace the word “disposal” with the word “disposition.” It remains evident from the subject matter of the rule that it would have no impact on jobs and employment opportunities.

Assessment of Public Comment

The Department of State received the following comments during the public comment period from three sources: The International Association of Pet Cemeteries and Crematories; the New York Association of Cemeteries; and the New York State Catholic Conference. As identified in a Response below, one of the Comments has resulted in a change to the proposed regulation.

COMMENT: The purpose of the rule is moot since the right of pet cemeteries to inter the cremated remains of pet owners with the remains of their pets already exists and is redundant to the objectives already contained in General Business Law Article 35-C.

RESPONSE: The custodian of cremated human remains (“cremains”) has numerous options for the scattering or burial of those cremains. Businesses not formed for the purpose of operating a human cemetery do not have the right to hold themselves out as a place for the disposition of cremains or to engage in the business of disposing of cremains. The proposed regulation would maintain the existing statutory distinction between cemeteries for human remains and pet cemeteries, and would establish conditions under which pet cemeteries could accept cremains for interment without operating as a cemetery for human remains by doing so.

COMMENT: The regulation violates Due Process by imposing restrictions without an administrative and adjudicatory finding that a violation of Not-For-Profit Corporation Law (N-PCL) Article 15 had been violated.

RESPONSE: The rights of cemeteries to certain administrative and adjudicatory procedures under N-PCL Article 15 apply upon the imposition of penalties under the law. A proposed regulation does not constitute a penalty.

COMMENT: The proposed regulation is a violation of the free speech rights of pet cemeteries and therefore the Department lacks authority to enact it.

RESPONSE: Regulations and statute often restrict certain communications between businesses and their customers. General Business Law Article 35-C, for example, includes required disclosures to customers and prohibits unlicensed entities from holding themselves out as being able to engage in the business of operating a pet cemetery or pet crematory. This rule proposes to reasonably restrict pet cemeteries from advertising or promoting themselves as a place for the disposition of cremains, which would reflect the statutory intent and protect the public interest.

COMMENT: The restrictions are vague and difficult to comply with and don’t give notice of how a violation would be treated.

RESPONSE: The proposed restriction on advertising and promotion is clear and should pose no compliance difficulties. It would prohibit a pet cemetery from promoting its services or location for the burial of cremains, but would allow a pet cemetery to provide consumers honest information about what services the pet cemetery can legally provide. The proposed restriction on fees is also clear and should pose no compliance difficulties. It would prohibit pet cemeteries from charging and collecting independent fees for scattering or interring cremains, as well as building associated costs into other fees. A person burying pet remains and cremains should pay the same as a person burying only pet remains, if their purchases are otherwise the same.

COMMENT: The Mandatory Warnings are False and Misleading.

RESPONSE: The regulation would require disclosures informing consumers about the difference between burying cremains in a cemetery for human remains and burying cremains in a pet cemetery. The proposed disclosures are accurate and would be helpful to consumers trying to decide whether to inter cremains in a pet cemetery.

COMMENT: The regulation is in conflict with General Business Law Article 35-C.

RESPONSE: Nothing in General Business Law Article 35-C permits a pet cemetery to engage in the business of burying cremains. The regulation provides pet cemeteries a way to accept cremains for burial without engaging in the business of operating a cemetery for human remains.

COMMENT: The regulation unlawfully prohibits pet cemeteries from charging a fee for burial of cremains.

RESPONSE: Accepting fees for the burial of cremains constitutes engaging in the operation of a cemetery for human remains, under existing law. Pet cemeteries charging a fee for the burial of cremains would be unlawfully engaging in the operation of a cemetery for human remains.

COMMENT: The regulation violates a consumer’s right to dispose of cremains as they see fit.

RESPONSE: N-PCL section 1517(i) allows the disposition of cremains “in any manner whatever on the private property of a consenting owner”. Nothing in the regulation would interfere with the consumer’s right to ask a pet cemetery for permission to bury cremains in the pet cemetery. On the other hand, only a cemetery for human remains may hold itself out as a place for the burial of human remains and charge a fee for such service. The regulation would allow consumers to seek permission to bury cremains in a pet cemetery while ensuring that pet cemeteries do not unlawfully operate a cemetery for human remains.

COMMENT: The proposed regulation is outside the scope of the powers of the Cemetery Board.

RESPONSE: Executive Law section 91, General Business Law section 750-d, and N-PCL section 1504(c) grant authority for this rulemaking. General Business Law section 750-d specifically authorizes the Department of State to adopt rules and regulations affecting pet cemeteries. Also, the broad police powers of the Cemetery Board under N-PCL section 1504(c) include the power to ensure that no person or entity unlawfully holds itself out as, or unlawfully operates, a cemetery for human remains.

COMMENT: The proposed regulation would financially harm cemeteries for human remains and this financial harm should have been addressed in the proposed regulation. The Department should permit pet remains to be interred in cemeteries for human remains.

RESPONSE: No one presented evidence of consumer demand to have human cemeteries accept pet remains, but there is substantial evidence of consumer demand to allow pet cemeteries to accept cremains. No evidence demonstrates this regulation will detrimentally impact the income of cemeteries for human remains. Additionally, many find the idea of interring animal remains in a cemetery for human remains repugnant; some would consider it a desecration of human burial grounds.

COMMENT: The use of the word “disposal” with regard to the interment of cremains is inappropriate and disrespectful.

RESPONSE: The regulation has been changed to replace “disposal” with “disposition” to make it consistent with terminology used in the Not-For-Profit-Corporation Law.

COMMENT: The proposed consumer disclosures don’t go far enough and should require a signed statement by the consumer that he or she has read and understands the disclosures and a copy of the signed acknowledgment should be retained by the pet cemetery.

RESPONSE: If a pet cemetery fails to comply with the regulation it would be subject to the penalties set forth in General Business Law section 750-h, including the possibility of suspension or revocation of its license. This should be sufficient incentive for pet cemeteries to comply with the consumer notice requirement.

COMMENT: The N-PCL only allows not-for-profit cemeteries to engage in the activity of acting as a cemetery for the burial of human remains.

RESPONSE: By prohibiting a pet cemetery from holding itself out as a place for burial of cremains and from receiving a fee for the burial of cremains, the proposed regulation would ensure that pet cemeteries do not engage in the operation of a cemetery for human remains.

COMMENT: Warnings should be given to consumers that the burial of cremains in a pet cemetery could result in those remains being moved and the record of the burial being lost. Pet cemeteries have the right to move pet remains from an individual lot to a mass burial lot if the owner of the individual lot fails to pay annual maintenance fee within one hundred eighty days of the date on which it is due. This would result in the removal and desecration of cremains as well.

RESPONSE: The proposed regulation would sufficiently inform consumers of the difference between the burial of cremains in a cemetery for human remains versus a pet cemetery. It would require disclosure to the consumer that: “There is NO ASSURANCE under New York State Law that any cremains disposed of on this property will remain for any period of time in the location they were disposed, or on this property at all.” This disclosure would alert consumers to the risk that cremains could be moved and would allow consumers to make informed decisions.

COMMENT: A ban on human remains being accepted by pet cemeteries is appropriate: there is no great consumer demand for this service and permitting this service would harm cemeteries for human remains because pet cemeteries would provide a cheap alternative that lacks the proper dignity for the deceased.

RESPONSE: A sizeable segment of the New York community articulated a desire to be able to have their cremains buried with their pet remains. No evidence suggests that permitting this practice will harm cemeteries for human remains. As long as consumers are provided the required disclosures, they will know in advance that their cremains will not enjoy the same protections provided cremains interred in a cemetery for human remains.