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In re the Adoption of N.J.A.C.

January 03, 2000

IN THE MATTER OF THE ADOPTION OF N.J.A.C. 9A:10-7.8(B)


Before Judges King, Kleiner and Lefelt.

The opinion of the court was delivered by: Lefelt, J.S.C., (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 1999

On appeal from a Final Action of the New Jersey Higher Education Assistance Authority.

In June 1998, the Higher Education Assistance Authority ("Authority") adopted an amendment to N.J.A.C. 9A:10-7.8(b). College Savings Bank ("Savings") claims that the variance between the May 1998 proposed amendment and the June 1998 adopted amendment was so substantial that the value of the original notice was destroyed. Therefore, Savings appealed seeking a remand instructing Authority to re-propose the amendment, providing an additional opportunity for public comment. We reject Savings's appeal and affirm.

The rule in question implements part of the 1997 New Jersey Better Education Savings Trust ("NJBEST") Act. N.J.S.A. 18A:72-43 to -54 (re- codified at N.J.S.A. 18A:71B-35 to -46, effective April 26, 1999). NJBEST was intended to assist families saving for college tuition. To accomplish this purpose, the legislature established the NJBEST Trust in Authority, N.J.S.A. 18A:72-46, and the Office of Student Assistance was given responsibility for administering the NJBEST program. Id. at -47.

For any qualified person who participates in the program, interest earned on NJBEST individual trust accounts is free from federal income tax until the time of qualified withdrawal, and is also exempt from state income tax. There are also scholarship and financial aid advantages to NJBEST participants who are attending New Jersey institutions of higher education. Id. at -51 and -52.

Authority first proposed regulations for the NJBEST program in October 1997. 29 N.J.R. 4372(a) (October 20, 1997). Because Authority had no basis to determine program costs, the adopted regulations were silent as to the amount of any fees to be charged by Authority, and merely echoed Authority's statutory authorization to impose such fees. 30 N.J.R. 68(b) (January 5, 1998).

Thereafter, Authority selected the Department of the Treasury's Division on Investments to act as investment manager for the trust, N.J.S.A. 18A:72-45 and -49(a), and agreed that State Street Bank would provide certain financial services. Authority then entered into a contract with a firm to provide advertising services for NJBEST. Savings opposed all of these actions.

Savings competes with the NJBEST program. It markets and runs a program for customers seeking to invest their funds to provide for a college education. In fact, Savings has a patented program that it uses to determine the investment amounts necessary to assure coverage of projected college tuition costs.

On April 20, 1998, Authority voted to propose amendments to the original implementing regulations for NJBEST.

The relevant proposed amendment was published in the New Jersey Register, and provided, in pertinent part:

9A:10-7.4 Procedure for opening an account 2. Paying the application fee . . . which shall ...


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