Certified Final Objection No. 125 of the

Joint Legislative Committee on Administrative Rules

At its meeting on October 29, 2003, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2003-87 containing rules of the Department of Transportation (Department) relative to off premise outdoor advertising.

At its meeting on December 4, 2003 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2003-87. 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 in the rule is filed with the director under subparagraph V(f), the burden of proof 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:

Tra 601.15

The Committee objected that Tra 601.15:

    1. Pursuant to Committee Rule 402.02(a), is contrary to legislative intent by violating federal statutes and regulations;
    2. Pursuant to Committee Rules 401.04 and 402.04, is contrary to legislative intent by violating the New Hampshire Constitution and the U.S. Constitution; and
    3. Pursuant to Committee Rule 404.01, has a substantial economic impact not recognized in the fiscal impact statement.

Tra 601.15 allows businesses with driveway access to a highway to place advertising signs within the state right-of-way. Based on written testimony from the Federal Highway Administration (FHWA), the Committee determined that Tra 601.15, by allowing advertising signs in the right-of-way, conflicts with federal statutes (23 U.S.C. §§ 29(d) and 402(a)) and federal regulations (23 C.F.R. §§ 1.23(b) and 655.603(a)).

 

Certified Final Objection No. 125 of the

Joint Legislative Committee on Administrative Rules

Page 2

The Committee noted that the state right-of-way is public property, and that Tra 601.15 allows commercial signs (e.g., business advertising) on this public property, but does not permit non-commercial signs (e.g., expressions of opinion on matters of public debate). The Committee further noted that under the constitutional principle of free speech, non-commercial speech is generally given greater protection than commercial speech (for example, in Metromedia v. San Diego, 453 U.S. 490 (1981), the U.S. Supreme Court found a city sign ordinance unconstitutional because it generally allowed commercial advertising but generally prohibited non-commercial advertising). Because Tra 601.15 permits only commercial signs, the Committee determined that the rule violates Part 1, Article 22 of the N.H. Constitution, and the First and 14th amendments to the U.S. Constitution.

The Committee received written testimony from the FHWA indicating that implementation of Tra 601.15 would likely result in the withholding of federal highway funds. Previous testimony from the FHWA had indicated that the amount at risk was $125-$140 million annually. Because the Department’s fiscal impact statement for Final Proposal 2003-87 did not reference the potential loss of federal funds, the Committee determined that Tra 601.15 has a substantial economic impact not recognized in the fiscal impact statement.