Certified Final Objection No. 80 of the

Joint Legislative Committee on Administrative Rules

At its meeting on July 19, 1996, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 96-032 containing rules of the Board of Education, Ed 300, Ed 400, and Ed 600-1400. The Board responded by letter dated September 3, 1996, received by the Office of Legislative Services on that same day.

At its special meeting on November 14, 1996, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-032. 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:13, VI:

After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. 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:

New Hampshire Constitution Part 1, Article 28-a

The Committee objected that, to the extent that it violates Part 1, Article 28-a of the New Hampshire Constitution, Final Proposal 96-032 is beyond the authority of the Board, pursuant to Committee Rule 401.04, and contrary to legislative intent, pursuant to Committee Rule 402.04. That constitutional provision states that:

The state shall not mandate or assign any new, modified or expanded programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.

The Board has undertaken to amend extensively and readopt Ed 300, Ed 400, and Ed 600-1400. The Committee further noted that the political subdivisions of the state are required to comply with the provisions contained in this proposal.

Thus, to the extent that the political subdivisions will be required to comply with provisions that have been adopted or amended since the effective date of Pt. 1, Art. 28-a in such a way as to increase the cost of compliance therewith, the Committee concluded that, where ever they may be found, such provisions in the rules conflict with Pt. 1, Art. 28-a.

Ed-C 316.05(f)

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 in and 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. [Emphasis added.] The Committee, as it had in a previous rulemaking proceeding, determined that RSA 193-B:4, I(a)(2) is not merely a requirement for posting on the interior of the bus, and entered a preliminary objection to this provision.

The Board 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 posted "in and on" buses. [Emphasis added.] The Committee reasoned that the words "and on" would have been rendered superfluous if "in and on" required the posting of such signs only in the interior of the bus. As statutes do not contain superfluous language, the words "and on" could only have been included if that 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).