In the Matter of Adopted Amendments to N.J.A.C. 8:25

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2674-24 IN THE MATTER OF ADOPTED AMENDMENTS TO N.J.A.C. 8:25. ______________________________ Argued October 13, 2026 – Decided October 29, 2026 Before Judges Sabatino, Berdote Byrne and Perez Friscia. On appeal from the New Jersey Department of Health. Ryan P. Goodwin argued the cause for appellant NJC- GAP, Inc. (FBT Gibbons LLP, attorneys; Michael D. DeLoreto, Ryan P. Goodwin and Alexandra C. Hayes, on the briefs). Jacqueline R. D'Alessandro, Deputy Attorney General, argued the cause for respondent New Jersey Department of Health (Jennifer Davenport, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Jacqueline R. D'Alessandro, on the brief). PER CURIAM Appellant NJC-GAP, Inc., a 501(c)(6) organization of New Jersey residential and non-residential youth camps, challenges the New Jersey Department of Health's ("DOH") February 18, 2025 final rule adoption of amendments to N.J.A.C. 8:25, which prescribe youth camp safety standards. The amended regulations, among other things, mandate that residential youth camps subject their applicants and staff to a fingerprint-based criminal history record information ("FBCHRI") check from the New Jersey State Police. They also require a fifty-state name-based criminal history record ("NBCHR") check for all camps. For the reasons explained in this opinion, we invalidate the FBCHRI requirement because the DOH lacks appropriate statutory authorization for that provision. In addition, we conclude that certain aspects of the adopted regulations were substantially and significantly changed from the original proposal after the public comment period, requiring the DOH on remand to re - initiate a new notice-and-comment process. I. The Youth Camp Safety Act In 1973, the Legislature enacted the New Jersey Youth Camp Safety Act, N.J.S.A. 26:12-1 to -16 (the "YCSA"). The stated purpose of the YCSA is to "promote, protect and safeguard the health and well-being of the youth of the State attending day camps and resident camps by providing for establishment of A-2674-24 2 standards for the safe operation of such camps, thereby providing assurance to parents and interested citizens that youth camps meet minimum safety standards." N.J.S.A. 26:12-2. The YCSA defines youth camp safety standards as "criteria directed toward safe operations of youth camps," including, among others, setting "personnel qualifications for director and staff." N.J.S.A. 26:12-3. Accordingly, camps must provide children with "adequate and qualified instruction and supervision at all times." N.J.S.A. 26:12-4. The YCSA delegates to the DOH commissioner the authority to develop, promulgate, modify or revoke the youth camp safety standards. N.J.S.A. 26:12 - 5. It also requires the commissioner to "consult with other State and local officials and with representatives of appropriate public and private organizations" in developing the standards. Ibid. In accordance with the YCSA, the DOH has promulgated rules pertaining to youth camp safety standards since 1974. See N.J.A.C. 8:25-1.1 to -14.1; 6 N.J.R. 180(a), 6 N.J.R. 264(b). A-2674-24 3  The Public Health Council The Legislature also enacted N.J.S.A. 26:1A-4 in 1947, which established the Public Health Council ("PHC") within the DOH. The PHC is comprised of ten members appointed by the Governor. N.J.S.A. 26:1A-4. Under N.J.S.A. 26:1A-7, the PHC has the power, by the affirmative vote of a majority of all its members, to establish, and from time to time amend and repeal, such reasonable sanitary regulations not inconsistent with the provisions of this act or the provisions of any other law of this State as may be necessary properly to preserve and improve the public health in this State. The regulations so established shall be called the State Sanitary Code. The State Sanitary Code covers sanitary regulations, and among other categories, related to the conduct of camps. N.J.S.A. 26:1A-7(j). In 2005, then Acting Governor Richard J. Codey issued Reorganization Plan No. 003-2005 ("the Reorganization"), which transferred certain powers of the PHC to the DOH. 37 N.J.R. 2735(a). The Reorganization stated that "[t]he current structure of the Council does not afford the Commissioner the necessary level of coordination of and control over these fundamentally important public health activities." Ibid. Therefore, the Reorganization transferred all of the PHC's powers and functions to the DOH, except for the PHC's "advisory and consultative functions." Ibid. A-2674-24 4  The 2024 Amendment Regarding staff qualifications, the standards required a camp operator or director to "verify that each staff member has a background free of conduct that bears adversely upon his or her ability to provide for the safety and well -being of the campers." N.J.A.C. 8:25-3.2(f) (2023). To that end, an operator or director was required to obtain a criminal history check for each staff member. N.J.A.C. 8:25-3.2(j) (2023). If the staff member was not a New Jersey resident (i.e., out of state or international), the operator or director needed to obtain the criminal history check or a recognized equivalent. N.J.A.C. 8:25-3.2(j)(1)(i) (2023). On February 20, 2024, the DOH submitted a proposal to amend N.J.A.C. 8:25.0020 56 N.J.R. 233(a). The February 2024 proposal sought to amend N.J.A.C. 8:25-3.2 to require a youth camp operator or director to review and verify that each staff member had a background free of certain specified criminal convictions in New Jersey and any other jurisdiction. Id. at 238. The amendment would require an operator or director to conduct an FBCHRI check through the New Jersey State Police for any staff member that would have unsupervised access to campers. Ibid. If the staff member was not a permanent resident of New Jersey, the operator or director would need to obtain a A-2674-24 5 fingerprint based criminal history record check or a recognized equivalent. Ibid.1 The proposal also added an exemption from the FBCHRI check if the staff member was a "currently employed school teacher" and the staff member provided a notarized statement signed by the school superintendent confirming they had previously submitted to an FBCHRI check and they were in good standing with the school district. Ibid. In the February 2024 proposal, the DOH also stated that it did not "have the statutory authority to promulgate rules that would require Federal Bureau of Investigation ("FBI") background checks or New Jersey Child Abuse Record Information ("CARI") checks."2 Id. at 236. On May 13, 2024, the DOH adopted partial changes to N.J.A.C. 8:25. 56 N.J.R. 1071(a) (June 17, 2024). The DOH noted that it received many comments that "generally stated that fingerprint-based criminal background checks would have a negative impact on the youth camp industry by making hiring more difficult and taking significantly more time to complete than the current name - 1 The proposal also added an exemption from the FBCHRI check if the staff member was a "currently employed school teacher" and the staff member provided a notarized statement signed by the school superintendent confirming they had previously submitted to an FBCHRI check and they were in good standing with the school district. Ibid. 2 We discuss this concession in more detail, infra, in Part III. A-2674-24 6 check based criminal background checks, while not significantly improving the safety of campers." Id. at 1074. The DOH responded that it was not adopting the fingerprinting requirement "at this time, while it determines how to proceed." Ibid. (responding to comment 6). In sum, the 2024 adoption retained the requirement for resident and day camp operators and directors to conduct an NBCHR check for staff rather than subject them to an FBCHRI check. However, the 2024 adoption noted that the proposed amendments to N.J.A.C. 8:25-3.2 to require FBCHRI checks for staff were "not adopted, but still pending." Id. at 1071. The 2025 Amendment and The Subsequent PHC Public Meeting: On March 4, 2025, the PHC published a notice for a meeting to take place six days later on March 10, 2025. The agenda attached to the notice stated the PHC would consider the "Notice of Adoption with Portions Pending of Amendments, Repeals, and New Rules of Youth Camp Safety Standards, N.J.A.C. 8:25." In a memo from the DOH to the PHC, sent prior to the 2024 PHC hearing, the DOH stated it was "adopting fingerprint based criminal history record checks for resident (overnight) camps only, and . . . mandating [fifty] state name based criminal history record checks for both day camps and resident camps ." The A-2674-24 7 memo stated the DOH was seeking the PHC's "advisory and consultative review" of the amendments to N.J.A.C. 8:25. The PHC met on March 10, 2025 to discuss the proposed amendments. After a DOH employee summarized the amendments, the PHC chairman commented that he thought it was "important" that the DOH included the fingerprinting requirements for staff and that he understood the need for such a requirement. He further stated he thought it was "a good regulation" because the changes were "necessary" and a "worthwhile endeavor" to continue focusing on the campers' safety. Another PHC member commented that the fifty-state NBCHR check requirement appeared to be a "good middle ground" for day camps rather than imposing the fingerprint checks. The DOH employee responded that "[c]ommenters, overall requested the [fifty]-state-based check." Ultimately, the PHC unanimously voted to recommend adoption of the amendments. On March 17, 2025, the DOH published a notice of adoption of further amendments to N.J.A.C. 8:25-1.4 (definitions), 2.2 (application for certificate of approval), and 3.2 (staff qualifications). 57 N.J.R. 571(a). The notice of adoption stated that the DOH Commissioner had already adopted these A-2674-24 8 amendments on February 18, 20253— twenty days before the March 10, 2025 PHC meeting. Ibid. The DOH asserted the filing was made "with non- substantial changes not requiring additional notice or comment." Ibid. The DOH noted that many commenters opposed the amendment, citing difficulty obtaining the FBCHRI check in time for the start of the camp season, the increased cost in obtaining the check, and increased difficulty in recruiting staff. 57 N.J.R. at 574. According to the notice, many commenters proposed instead that the DOH consider requiring camps to obtain a fifty-state NBCHR check rather than the FBCHRI check. Ibid. In response to the comments, the DOH acknowledged the increased burden in obtaining an FBCHRI check. However, the DOH also emphasized the accuracy of using fingerprints to definitively identify a person and link them to a possible criminal record as opposed to using a name and Social Security number. Id. at 575 (responding to comments 1 to 13). Even so, to "minimize the potential risk of logistical issues" caused by the FBCHRI requirements, the DOH clarified that it was only adopting these requirements for residential (i.e., overnight) camps and not for day camps. Ibid. For day camps, the DOH stated 3 We note this is two days before the one-year deadline prescribed by N.J.A.C. 1:30-6.2(c) was set to expire. A-2674-24 9 it was retaining the requirement for operators to conduct an NBCHR check but expanding the check to all fifty states rather than just New Jersey. Ibid. Also on March 17, 2025, appellant wrote to the DOH, objecting to the amendments because the February 20, 2024 rule proposal had expired as of February 20, 2025. Appellant also argued the notice of adoption was procedurally deficient because it contained substantial changes from the 2024 proposal and DOH needed to resubmit the proposal for public comment. Appellant wrote to the DOH again on March 21, 2025, objecting to the adoption of the amendments because the March 17, 2025 notice of adoption indicated that the DOH had already adopted the changes before the PHC recommending their adoption. This appeal followed. Appellant argues the DOH lacked statutory authority under the YCSA to mandate the FBCHRI checks. In addition, appellant contends the regulations are invalid due to two procedural irregularities: (1) the DOH did not consult with the PHC before filing the adoption with the OAL, and (2) the DOH violated the Administrative Procedure Act ("APA"), N.J.S.A. 52:14B-1 -4.1(b), in adopting the 2025 amendments. We consider those arguments in a different order than how they are sequenced in the briefs. A-2674-24 10  II. We start with a recognition of some general principles. Administrative agency regulations are generally presumed to be "valid and reasonable." N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008) (citing N.J. State League of Muns. v. Dep't of Cmty. Aff., 158 N.J. 211, 222 (1999)). Customarily, agencies are afforded flexibility in "select[ing] those procedures most appropriate to enable [them] to implement legislative policy." Texter v. Dep't of Hum. Servs., 88 N.J. 376, 385 (1982). That said, "the application of 'substantial deference' afforded to regulations is only available if they are 'consistent with the governing statutes' terms and objectives." In re Adoption of N.J.A.C. 17:1-6.4, 17:1-7.5 & 17:1- 7.10, 454 N.J. Super. 386, 395 (App. Div. 2018) (quoting In re Adoption of Amends. to N.J.A.C. 6:28-2.10, 3.6 & 4.3, 305 N.J. Super. 389, 401 (App. Div. 1997)). A "'regulation can only be set aside if it is proved to be arbitrary or capricious, plainly transgresses the statute it purports to effectuate, or alters the terms of the statute and frustrates the policy embodied in it.'" In re Agric., Aquacultural, & Horticultural Water Usage Certification Rules, 410 N.J. Super. 209, 223 (App. Div. 2009) (quoting In re Adopted Amends. to N.J.A.C. 7:7A- 2.4, 365 N.J. Super. 255, 265 (App. Div. 2003)); see also Bergen Pines Cnty. A-2674-24 11 Hosp. v. Dep't of Hum. Servs., 96 N.J. 456, 477 (1984) (stating an agency's regulation is arbitrary and capricious where it is found "unreasonable or irrational"). To some extent, the matter before us entails the interpretation of regulations. Courts generally interpret regulations in the same manner as a statute. In re Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 542 (2016) (citing U.S. Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)). The goal is to determine the intent of the Legislature, which a court does by looking at the regulation's "actual language." U.S. Bank, 210 N.J. at 199 (2012). The words of a regulation should be given "'their ordinary and commonsense meaning,'" In re Election L. Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 263 (2010) (quoting State v. Gelman, 195 N.J. 475, 482 (2008)). Moreover, courts should presume that the drafter "intended the words that it chose and the plain and ordinary meaning ascribed to those words," Paff v. Galloway Township, 229 N.J. 340, 353 (2017) (citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Furthermore, an agency must adopt regulations in accordance with the procedures delineated in the APA. Administrative rules are not valid unless adopted "in substantial compliance" with the APA. N.J.S.A. 52:14B-4(d); N.J. A-2674-24 12 Animal Rts. All. v. N.J. Dep't of Env't Prot., 396 N.J. Super. 358, 370 (App. Div. 2007). The APA is the "touchstone for decision in formulating fair administrative procedures," and "provides the necessary starting point for any analysis of an agency's chosen pathway for action." In re Provision of Basic Generation Serv. for Period Beginning June 1 2008, 205 N.J. 339, 347-48 (2011) (first quoting High Horizons Dev. Co. v. State, 120 N.J. 40, 46 (1990)). "Rulemaking is a legislative-like activity." Id. at 349. The rulemaking process takes advantage of an agency's expertise in a certain subject area. Ibid. "The purpose of the APA rulemaking procedures is 'to give those affected by the proposed rule an opportunity to participate in the process, both to ensure fairness and also to inform regulators of consequences which they may not have anticipated.'" Ibid. (quoting In re Adoption of 2003 Low Income Hous. Tax Credit Qualified Allocation Plan, 369 N.J. Super. 2, 43 (App. Div. 2004)). We discuss those procedures, as pertinent here, in Part III(B) of this opinion. Lastly, a party challenging the validity of regulations (here appellant NJC- GAP, Inc.) bears the burden of proving that the regulations must be reversed. N.J. State League of Muns., 158 N.J. at 222. We review such arguments of invalidity on direct appellate review without the involvement of a trial court or administrative law judge. R. 2:2-3. A-2674-24 13  III. We first address appellant's argument that the DOH lacks the statutory authority to compel youth camps to require FBCHRI checks for camp staff. Appellant contends the pertinent regulation that the DOH adopted, N.J.A.C. 8:25-3.2, mandating such FBCHRI checks, needed express legislative authorization, which is not set forth in the YCSA. In this regard, appellant highlights that the Legislature has repeatedly adopted statutes explicitly authorizing several other state agencies to require or utilize FBCHRI checks, and the YCSA contains no comparable delegation of authority. As we will discuss, infra, when it proposed the regulations, the DOH conceded in the New Jersey Register that the Legislature must specifically authorize a state agency to exchange fingerprint data with the Federal Bureau of Investigation ("FBI"). However, the DOH argues that the 2025 adoption did not require an FBCHRI check by or from the FBI, but it instead directed the New Jersey State Police to conduct the check. The DOH argues it has implied legislative authority to compel such checks by using state sources such as the State Police. The DOH submits that its regulation requiring FBCHRI checks was within its implied statutory authority and aligned with the safety goals of the YCSA. A-2674-24 14  We evaluate this legal issue of statutory authorization de novo. In re N.J. Dep't of Env't Prot.'s Sept. 6, 2022 Denial of Request for Adjudicatory Hearing, 260 N.J. 256, 269 (2025); In re Ridgefield Park Bd. of Educ., 244 N.J. 1, 17 (2020). Having done so, we agree with appellant's argument and reject the DOH's attempt to impose, through a regulation, an FBCHRI check in a manner that avoids involvement with the FBI and has not been authorized by statute. As a preliminary point of analysis, we recognize the general principle that "the statutory grant of power by the Legislature to an agency can either be express or implied." In re Stormwater Mgmt. Rules, 384 N.J. Super. 451, 461 (App. Div. 2006) (citing N.J. Dep't of Labor v. Pepsi-Cola Co., 170 N.J. 59, 61 (2001)), "[I]n deciding whether a particular regulation is statutorily authorized, a 'court may look beyond the specific terms of the enabling act to the statutory policy sought to be achieved by examining the entire statute in light of its surroundings and objectives.'" Ibid. (quoting N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978)). When conducting such an assessment, courts generally should liberally construe an agency's grant of authority in order to enable the agency to carry out its statutory responsibilities. Ibid. A-2674-24 15  That general principle, however, must yield when an agency attempts by regulation to expand its powers beyond a fair reading of its statutory delegation. "An administrative agency cannot give a statute greater effect than its language allows under the guise of interpretation." In re Agric., Aquacultural, & Horticultural Water Usage Cert. Rules, 410 N.J. Super. at 251 (citing In re Freshwater Wetlands, 180 N.J. 478, 489 (2004)). When the Legislature has not delegated authority to an agency, we do not afford that agency judicial deference in acting outside the zone of its statutory powers. N.J. Dental Ass'n v. Metro Life Ins. Co., 424 N.J. Super. 160, 173 (App. Div. 2012). 4 In addition, an agency may not exercise its statutory authority in an arbitrary, capricious, or unreasonable manner. N.J. State League of Muns., 158 N.J. at 222. That said, we acknowledge that, as we noted above, the YCSA's declared purpose is to "promote, protect and safeguard the health and well-being of the youth of the State attending day camps and resident camps by providing for establishment of standards for the safe operation of such camps, thereby providing assurance to parents and interested citizens that youth camps meet 4 See also In re P.T. Jibsail Fam. Ltd. P'ship Tidelands License No. 1515-06- 0012.1 TDI 190001, 263 N.J. 208, 216 (2026) (in which the Court recently expressed concerns about specifying with consistency the degree of appropriate judicial deference to state administrative agencies). A-2674-24 16 minimum safety standards." N.J.S.A. 26:12-2. The statute requires youth camps to provide "adequate and qualified instruction and supervision at all times." N.J.S.A. 26:12-4. Youth camp safety standards include setting "personnel qualifications for director and staff." N.J.S.A. 26:12-3(b). As appellant points out, numerous New Jersey statutes expressly grant authority to state agencies to exchange fingerprint information with both the FBI and State Police. For instance, N.J.S.A. 45:1-30(a), which regulates licensure as a health care professional before the Division of Consumer Affairs, states "[t]he director is authorized to exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation and the Division of State Police for use in making the determinations required pursuant to this act." (Emphasis added). Other statutes contain comparable express language of authorization.5 5 See, e.g., N.J.S.A. 30:6D-65 (requiring a FBCHRI check for individuals employed by community agencies contracting with the Department of Human Services, stating "[t]he commissioner is authorized to exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation and the Division of State Police for use in making the determinations required by this act") (emphasis added); N.J.S.A. 45:19-32 (requiring a FBCHRI check for licensure as a bounty hunter, stating "[t]he superintendent shall compare the applicant's fingerprints with information on file with the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal A-2674-24 17 laws, rules and regulations") (emphasis added); N.J.S.A. 45:22-3 (requiring a FBCHRI check for licensure as a pawnbroker, stating "[t]he commissioner is authorized to exchange fingerprint data with and receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal laws, rules and regulations, for the purposes of facilitating determinations concerning licensure eligibility") (emphasis added); N.J.S.A. 24:6I-4 (requiring a FBCHRI check for permission to work as a designated or institutional caregiver, stating "[t]he commission is authorized to exchange fingerprint data with and receive criminal history record background information from the Division of State Police and the Federal Bureau of Investigation consistent with the provisions of applicable federal and State laws, rules, and regulations") (emphasis added); N.J.S.A. 30:11-23 (requiring a FBCHRI check for nursing home administrator applicants, stating "[t]he commissioner is hereby authorized to exchange fingerprint data with and receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal laws, rules and regulations, for purposes of facilitating determinations concerning licensure eligibility") (emphasis added); N.J.S.A. 5:5-34 (requiring a FBCHRI check for persons seeking employment where a horse race meeting is permitted, stating "[t]he executive director is authorized to receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal laws, rules and regulations") (emphasis added); N.J.S.A. 26:2H-7.26 (requiring a FBCHRI check for owners and principals of state licensed nursing homes, stating "[f]or the purposes of subsection a. of this section, the department is authorized to exchange fingerprint data with and receive criminal history record background information from the Division of State Police and the Federal Bureau of Investigation consistent with the provisions of applicable federal and State laws, rules, and regulations") (emphasis added); N.J.S.A. 40A:14-81.2 (requiring a FBCHRI check for paid employment within certain fire departments or a fire district, stating "[t]he appointing body of the fire district is authorized to exchange fingerprint data with and receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal law, A-2674-24 18  Having enacted these statutes governing other agencies and programs, the Legislature is presumed to have known how to express—explicitly—such authorization for an agency to require or utilize FBCHRI checks. See Whitfield v. United States, 543 U.S. 209, 216 (2005) (articulating this presumption). Its failure to do so within the YCSA is conspicuous. rules and regulations") (emphasis added); N.J.S.A. 39:12-5 (requiring a FBCHRI check for employment as a motor vehicle instructor, stating"[t]he chief administrator is hereby authorized to exchange fingerprint data with and receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal laws, rules and regulations, for purposes of facilitating determinations concerning licensure eligibility") (emphasis added); N.J.S.A. 17:11C-7 (requiring a FBCHRI for engaging in business as a consumer lender or sales finance company, stating "[t]he commissioner is authorized to exchange fingerprint data with and receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal laws, rules and regulations, for the purposes of facilitating determinations concerning licensure eligibility for the person, based upon any findings related to an officer, director, partner or owner") (emphasis added); N.J.S.A. 45:1-1 to -53.1 (including Applied Behavior Analysts, Creative Arts and Activities Therapists, and Dietitians and Nutritionists within the scope of health care professions required to submit to FBCHRI checks, stating "[t]he commissioner is authorized to exchange fingerprint data with and receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal laws, rules and regulations, for the purposes of facilitating determinations concerning licensure eligibility for the person, based upon any findings related to an officer, director, partner or owner") (emphasis added). We note this list of authorizing statutes may not be exhaustive. A-2674-24 19  Tellingly, when it proposed the instant regulations in the New Jersey Register, see 56 N.J.R. 236, the DOH conceded that it lacked the statutory authority to require FBCHRI checks from the FBI. The concession appears several times within the proposed regulation's required "Federal Standards Statement": The Department is proposing this rulemaking pursuant to the authority of N.J.S.A. 26:12-1 et seq., particularly 26:12-5. Although this State statute does not incorporate or otherwise refer to Federal law, it does authorize the Commissioner to consult with other State officials and to consider other State rules and standards. To this end, the [DOH] has consulted with the New Jersey Department of Human Services (DHS), which administers the Child Care Development Block Grant (CCDBG) established pursuant to 42 U.S.C. §§ 9891 et seq. Pursuant to the CCDBG program. eligible children receive benefits for child care services that subject child care center staff to the criminal background check requirements established pursuant to 42 U.S.C. § 9858f. The CCDBG benefits follow each eligible child, and when an eligible child is enrolled at a youth camp, the youth camp becomes subject to the criminal background check requirements established pursuant to 42 U.S.C. § 9858f in the same manner that a child care center regulated by DHS would be. Whereas DHS has the statutory authority to promulgate rules that require each child care center to comply fully with the criminal background check requirements established pursuant to 42 U.S.C. § 9858f, [the DOH] does not. A-2674-24 20  Accordingly, the [DOH] is proposing amendments to the criminal background check requirements for youth camps that come as close as possible to the standards established pursuant to 42 U.S.C. §9858f, given the constraints established by the authority at N.J.S.A. 26:12-1 et seq. Specifically, the [DOH] does not have the statutory authority to promulgate rules that would require Federal Bureau of Investigation (FBI) background checks or New Jersey Child Abuse Record Information (CARI) checks. The proposed amendments would establish the list of disqualifying offenses from 42 U.S.C. § 9858f and ensure that they apply to youth camp operators and staff to the fullest extent allowed pursuant to current State law. None of the rules proposed for readoption with amendments, repeals, or new rules exceed the standards established by Federal law. [56 N.J.R. 236 (emphasis added).] We make several observations about this public notice, which can and should be viewed as a statement by appellant's party-opponent in this appeal. N.J.R.E. 803(b)(1). First, it is unmistakable that the DOH admits that it lacks the statutory authorization to mandate or utilize FBCHRI checks derived from the FBI. The DOH has acknowledged that in its brief on appeal. Second, the DOH attempts to justify obtaining FBCHRI checks by having "consulted" with a different department of State government, the DHS, and A-2674-24 21 making use of whatever authorization that DHS may have to obtain such checks. But there is no indication in the notice of rulemaking or the adoption of how or why the DOH's statutory authorization to consult another State agency implies a greater power to mandate such checks itself. As shown by the array of statutes we have cited above, the Legislature has taken care to treat FBCHRI authorization on an agency-by-agency and statute-by-statute basis. The DOH has not shown the subject matter of fingerprint checks is trivial or that the Legislature's express authorizations to other state agencies enabling such checks was superfluous. Third, the DOH fails to explain logically or textually why a lack of statutory authorization for FBI checks does not equally signify, by legislative silence, a lack of statutory authorization for such checks by the State Police. Stated another way, if the YCSA, as the DOH argues on appeal, should be construed to imply authorization for State Police checks, why not also FBI checks? The concession about FBI checks is inconsistent with the DOH's argument to construe the YCSA broadly. 6 6 Although not cited by the parties, we do not construe that our opinion fifty- five years ago in Hamilton v. New Jersey Real Estate Commission, 117 N.J. Super. 345 (App. Div. 1971), conferred on the DOH the authority it claims to have to mandate FBCHRI checks. The plaintiffs in Hamilton challenged the A-2674-24 22  Fourth, we note the DOH has relied on the fact that the regulation discussing the forms used for State Police checks, N.J.A.C. 13:59-1.4(b), differs from the regulation describing the forms used for FBI checks, N.J.A.C. 13:59- 1.4(c). But the difference in the forms does not solve the problem of the DOH's lack of statutory authorization for any FBCHRI checks. Fifth, the DOH did not explain in the rule proposal the "constraints" that apply to its authority, other than to allude to them and to declare that the proposed rule did not violate federal law. When it ultimately adopted the regulation in 57 N.J.R. 571(a), the DOH in response to Comment 19 rejected appellant's comment that the FBCHRI checks lack statutory authorization. Id. at 576. But in doing so, the DOH simply invoked what it perceives as its broad authority under the YCSA to assure that New Jersey Real Estate Commission's ability to impose fingerprinting requirements for applicants for a salesman, broker-salesman, or broker's license. Id. at 346. The plaintiffs argued, as appellant does here, that the commission lacked legislative authority to impose such a requirement. Ibid. On appeal, we ruled that the enabling statute involved in that case encompassed such authority since it authorized the commissioner to enforce the licensing standards. Id. at 346-47. We distinguish Hamilton as arising under a different statute than the one before us and before many of the subsequent statutes conferring explicit authority were enacted. Moreover, Hamilton did not involve FBCHRI checks in particular. A-2674-24 23 youth camps meet minimum safety standards and did not satisfactorily address the discrete deficiencies and problems we have discussed here. In sum, although we appreciate the DOH's efforts to improve the safety of children who are enrolled in youth camps, the agency erred in adopting a regulation that lacks statutory authorization by the legislature and which is out of step with numerous other statutes that delegate such rulemaking authority . We therefore invalidate this aspect of the adopted regulation. IV. The remaining arguments presented by appellant concern alleged improprieties in the rulemaking adoption process. We address them, in turn. A. Appellant contends the rulemaking process here was flawed because the PHC did not perform its advisory role and conduct a hearing until after the DOH had already adopted the 2025 amendments and had posted them in the New Jersey Register. We agree the sequence of events was irregular, and that the DOH acted capriciously and in a non-transparent manner. As we noted above, under N.J.S.A. 26:12-5, the DOH commissioner has the authority to issue regulations concerning youth camp safety standards. The statute requires the commissioner to "consult with other State and local officials