Certified Final Objection No. 59 of the
Joint Legislative Committee on Administrative Rules
At its meeting on April 16, 1993, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 92-244 containing proposed rules of the Commissioner of Education (Commissioner) relative to drug free school zones. The Commissioner responded by letter dated May 20, 1993.
At its meeting on August 20, 1993, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-244. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:3-e, VI:
After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.
The following summarizes the bases for the Committee's final objection:
The Committee objected that Ed-C 316.02(h) violates Committee Rule 402.02(a) by being contrary to legislative intent to the extent that it conflicts with RSA 193-B:4, I(a)(3).
This rule defines the term "temporary drug-free school zone" as being "the area which extends to 1,000 feet surrounding a facility which is not a school as defined in (e) above but which is used by a school for classroom activity or activities, as part of the school's instructional program, at least 2 times per week." The Committee determined that this definition was inconsistent with RSA 193-B:4, I(a)(3), in two ways.
The term "temporary drug-free school zone" is used in RSA 193-B:4, I(a)(3), which requires that signs identifying drug free school zones must "be posted in a prominent place ... on or near non-school-owned property serving as a temporary drug-free school zone by virtue of its use for school purposes, for the duration of such use." This requirement for the placement of signs only requires that the facility be used for school purposes. The term "drug-free school zone" is defined by RSA 193-B:1, II, and means "an area inclusive of any property used for school purposes by any school, whether or not owned by such school, within 1,000 feet of any such property, and within or immediately adjacent to school buses." As with the requirement for signs, the definition only requires that the property be used for school purposes; neither RSA 193-B:1, II, nor RSA 193-B:4, I(a)(3), require a minimum frequency of use for a property to qualify for status as a drug-free school zone.
By way of contrast, Ed-C 316.02(h) imposes two requirements not found in RSA 193-B: that the property be used for classroom activities, and that it be used at least twice each week. The Committee determined that these two additional requirements will operate so as to deny drug-free school zone status to properties that would otherwise be covered by the provisions of RSA 193-B. For example, a property more than 1,000 feet from school property but used by a school for theatrical or musical productions, or for athletic events would appear to qualify for temporary drug-free school zone status under RSA 193-B:4, I(a)(3), but would not qualify for such status under Ed-C 316.02(h), as these activities are not "classroom activities." In fact, even if plays, concerts, or athletic events were held at a property on a daily basis the property would not qualify for such status under Ed-C 316.02(h). The Committee concluded that such a rule, and such results, were not consistent with the requirements of RSA 193-B:4, I(a)(3).
The Committee objected that Ed-C 316.05(f) violates Committee Rule 402.02(a) by being contrary to legislative intent to the extent that it conflicts with RSA 193-B:4, I(a)(2).
Pursuant to RSA 193-B:4, I(a)(2), signs for drug-free school zones must "be posted in a prominent place ... in and on each school bus." As proposed by the Commissioner the rule for drug-free school zone signs for buses states, in pertinent part, that "each school bus shall have installed on an interior surface at the front of the bus, forward of the passenger seating area, a drug-free school zone sign manufactured" in accordance with Ed-C 316.
The Commissioner declined to include in the rules the requirement that a sign be placed on the exterior of each bus. The Committee determined that the statute requires exterior signs in addition to the interior signs, because the statute mandates that such signs be placed "in and on" buses. [Emphasis added.] The Committee reasoned that, since statutes do not contain superfluous language, the words "and on" would not have been included unless this language also imposed a requirement. The Committee concluded that the statute clearly requires that signs must be placed upon the exterior of buses, and that a rule that only requires signs for the interior of buses conflicts with RSA 193-B:4, I(a)(2).