S 286 Session 111 (1995-1996)
S 0286 General Bill, By Lander, Elliott, Hayes, Leventis, Martin, Rankin,
M.T. Rose, Waldrep and Wilson
A BILL TO AMEND CHAPTER 11, TITLE 11, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE STATE BUDGET SYSTEM, SO AS TO ENACT THE FEDERAL MANDATES ACT
WHICH REQUIRES STATE AGENCIES TO DETERMINE WHETHER STATE PROGRAMS MANDATED BY
FEDERAL LAW ARE CONSTITUTIONAL UNDER THE TENTH AMENDMENT AND WHICH PROHIBITS
THE GENERAL ASSEMBLY FROM PROVIDING STATE FUNDS FOR ANY PROGRAM NOT
CONSTITUTIONAL.
11/14/94 Senate Prefiled
11/14/94 Senate Referred to Committee on Judiciary
01/10/95 Senate Introduced and read first time SJ-123
01/10/95 Senate Referred to Committee on Judiciary SJ-123
A BILL
TO AMEND CHAPTER 11, TITLE 11, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO THE STATE
BUDGET SYSTEM, SO AS TO ENACT THE FEDERAL
MANDATES ACT WHICH REQUIRES STATE AGENCIES TO
DETERMINE WHETHER STATE PROGRAMS MANDATED BY
FEDERAL LAW ARE CONSTITUTIONAL UNDER THE TENTH
AMENDMENT AND WHICH PROHIBITS THE GENERAL
ASSEMBLY FROM PROVIDING STATE FUNDS FOR ANY
PROGRAM NOT CONSTITUTIONAL.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Chapter 11, Title 11 of the 1976 Code is amended
by adding:
"Article 7
Federal Mandates Act
Section 11-11-500. This chapter shall be known and may be
cited as the `Federal Mandates Act'.
Section 11-11-510. (A)(1) In enacting this article, the General
Assembly employs its legislative authority to establish that the
people of the State of South Carolina acting through their elected
officials in the South Carolina state government, have the
responsibility and authority to establish policy in and for South
Carolina pertaining to federal programs mandated in federal
statutes.
(2) The intent of the General Assembly is to assure the
primacy of the State of South Carolina's legal and political
authority to implement in and for South Carolina the policy
mandated by federal statutes and to vigorously challenge and
scrutinize the extent and scope of authority asserted by federal
executive branch agencies when federal agency actions and
interpretations are inconsistent with South Carolina policy and
exceed the lawful authority of the federal government or are not
required by federal law.
(3) In this connection the General Assembly finds and
declares that:
(a) The power to implement federal policies in and for
South Carolina is central to the ability of the people of South
Carolina to govern themselves under a federal system of
government.
(b) Any implementation of federal policies in and for
South Carolina by federal executive branch agencies that is contrary
to fundamental notions of federalism and self-determination must be
identified and countered.
(B) The General Assembly further finds and declares that:
(1) There is an urgent need to modify federal mandates
because the implementation of these mandates by the State wastes
the financial resources of local governments, the citizens of South
Carolina, and the State and does not properly respect the rights of
the State, local governments, and citizens.
(2) The state government has an obligation to the public to
do what is necessary to protect the rights of South Carolina citizens
under federal law while minimizing or eliminating any additional
cost or regulatory burden on any citizen of the State.
(3) The Tenth Amendment to the United States Constitution
directs that powers that are not delegated to the United States are
reserved to the states or to the people. South Carolina, as one of
the sovereign states within the union, has constitutional authority to
enact laws protecting the environment of the State and safeguarding
the public health, safety, and welfare of the citizens of South
Carolina. However, this authority has too often been ignored by the
federal government, as the federal government has intruded more
and more into areas that must be left to the states. It is essential
that the dilution of the authority of state and local governments be
halted and that the provisions of the tenth amendment be accorded
proper respect.
(4) Current federal regulatory mandates, as reflected in
federal administrative regulations, guidelines, and policies often do
not reflect the realities of the rocky mountain region and federal
regulators frequently do not understand the needs and priorities of
the citizens of South Carolina.
(5) The citizens of this State can create and wish to create
innovative solutions to South Carolina's problems, but the current
manner in which legal challenges to state policies and federal
programmatic substitutions of state programs are handled does not
allow the State the flexibility it needs. It is not possible for the
State of South Carolina to effectively and efficiently implement the
provisions of federal statutes unless the burden to prove the
insufficiency of the state's efforts to implement federal requirements
is shifted to the person or agency who asserts such insufficiency.
(6) The provisions of this chapter will better balance the
exercise of the powers of the federal government and the powers
reserved to the states. In addition, the application of this article
ultimately will bring about greater protection for the State and the
nation, because it will direct the State to implement federal statutes
at the least possible cost, thereby freeing more moneys for other
needs.
(7) The purpose of this article is to ensure that federal
mandates implemented in South Carolina comply with state policy
as established by the General Assembly.
Section 11-11-520. As used in this article, unless the context
otherwise requires, `Federal statute' means a federal statute that is
in accord with the United States Constitution imposing mandates on
state or local governments, which may include, but is not limited to,
the following:
(1) the federal `Safe Drinking Water Act', 42 U.S.C. Sec.
300F, et seq., as amended;
(2) the federal `Clean Air Act', 42 U.S.C. Sec. 7401, et
seq., as amended;
(3) the `Federal Water Pollution Control Act', 33 U.S.C.
Sec. 1251, et seq., as amended;
(4) the federal `Solid Waste Disposal Act', 42 U.S.C. Sec.
3251, et seq., as amended;
(5) the federal `Resource Conservation and Recovery Act of
1976', 42 U.S.C. Sec. 69014 et seq., as amended;
(6) the federal `Comprehensive Environmental Response
Compensation, and Liability Act of 1980', 42 U.S.C. Sec. 9601,
et seq., as amended;
(7) the federal `Superfund Amendments and Reauthorization
Act of 1986', P.L. No. 99-499, as amended;
(8) the federal `Endangered Species Act of 1973', 16 U.S.C.
Sec. 1531, et seq., as amended;
(9) the federal Asbestos School Hazard Abatement statute, 20
U.S.C. Sec. 4011, et seq., as amended;
(10) the federal `Brady Handgun Violence Prevention Act of
1993', P.L. No. 101-336, as amended;
(11) the federal `Commercial Motor Vehicle Safety Act of
1986', 49 U.S.C. Sec. 2501, as amended;
(l2) the federal `Family and Medical Leave Act of 1993' P.L.
No. 103-3, as amended;
(13) the federal `Emergency Planning and Community
Right-to-Know Act', P.L. Nos. 99-145 And 99-499, as amended;
(14) the federal, state, and local partnership for education
improvement program, 20 U.S.C. Sec. 1751, et seq., as amended;
(15) the federal `National Voter Registration Act of 1993' P.L.
No. 103-31, as amended;
(16) the federal school lunch program and school breakfast
program, 42 U.S.C. Secs. 1751 and 1773, as amended;
(17) the federal social services and medicaid requirements 42
U.S.C. Sec. 1396, as amended;
(18) federal highway safety programs; and
(19) the federal `Intermodal Surface Transportation Efficiency
Act of 1991', P.L. No. 102-240, as amended.
Section 11-11-530. (A) Any state officer, official, or employee
charged with the duty of implementing any federal statute shall
implement the law as required by the federal statute in good faith
and exercising a critical view toward the provisions of any federal
regulation guideline, or policy in order to identify those provisions
of any federal regulation, guideline, or policy that are inconsistent
with South Carolina policy or do not advance South Carolina policy
in a cost-effective manner.
(B) Any agency of the executive department of state government
that is authorized to develop a state program to respond to any
mandates contained in a federal statute shall develop the state
program and promulgate any necessary regulations using the
following criteria: (1) State programs should be developed by
the state agency to meet the requirements of federal statutes in good
faith with a critical view toward any federal regulations, guidelines,
or policies.
(2) State programs should be developed with due
consideration of the financial restraints of local governments the
citizens of South Carolina and the State.
(3) Any state program that implements the goals of the
federal statute should use the most efficient method possible with
careful consideration given to cost of the program and the impact of
the program on South Carolina citizens and local governments and
the long-range public health, safety, and welfare of citizens of the
State.
Section 11-11-540. (A) The Governor shall report to the
General Assembly regarding the proposed implementation of this
section.
(B)(1) If any state program is authorized or mandated by a
federal statute, no state appropriations for the program shall be
enacted unless:
(a) the state program is necessary to protect the public
health, safety, and welfare;
(b) the state program is necessary to implement the federal
statute;
(c) the operation of the state program benefits the State by
providing a cost-effective implementation of the federal statute by
the State, by local government, and by business;
(d) the state program benefits the State, local government,
and business by providing a cost-effective means to meet a higher
public health, safety, and welfare standard established under state
law.
(2) Each state agency making a budget request for state
appropriations for a state program authorized or mandated by
federal statute shall include in its budget request citations to the
federal constitutional provisions and the state constitutional or
statutory provisions that authorize the state program. The Governor
shall review the budget request and determine whether additional
state statutory authority is required in order to implement the state
program and shall make recommendations to the General Assembly.
(3) The General Assembly, after receiving a recommendation
from the Governor shall determine whether a state program is
necessary and whether federal constitutional authority and state
constitutional or statutory authority exist. The General Assembly
shall exercise a critical view toward the interpretation of the federal
statute found in federal regulations, guidelines, or policies.
Enactment of state appropriations for a state program shall
constitute the General Assembly's determination that the state
program is necessary and that federal constitutional authority and
state constitutional or statutory authority exist. State appropriations
may not be based solely on requirements found in regulations,
guidelines, or policies of a federal agency.
(4) Prior to recommending to the General Assembly any
budget for a state agency that is charged with implementing federal
mandates, the Governor shall require that the state agency provide
information regarding any monetary savings for the State and any
reduction in regulatory burdens on the public and on local
governments that could be or have been achieved through the
development of state policies that meet the intent of the federal
statute but do not necessarily follow all applicable federal
regulations, guidelines, or policies. The state agency shall also
provide advice to the Governor regarding any changes in state
statutes that are necessary to provide the state agency the authority
to implement state policies in such a way as to create additional
savings or greater reductions in regulatory burdens. The Governor
shall review and compile the information received from state
agencies pursuant to this section and shall include recommendations
in its annual budget recommendation to the General Assembly
based upon such information.
(C) For purposes of this section, `state program' does not
include any portion of a program that is funded with non-tax or
non-fee revenues, or both, which state authorities are required to
administer in a trusteeship or custodial capacity and which are not
subject to appropriation by the General Assembly."
SECTION 2. (A) The Advisory Commission on
Intergovernmental Relations shall prepare one or more requests for
information regarding federal mandates on or before September 30,
1995. The requests for information shall be directed to persons
involved with or affected by federal mandates including, but not
limited to, the following:
(1) public and private institutions of higher education both
within and outside of South Carolina and individuals in such
institutions who have developed a high degree of expertise in the
subjects of federalism and federal mandates;
(2) attorneys in private practice who have dealt with federal
mandate litigation or research; and
(3) organizations and foundations that have an interest in the
issues of federalism and the imposition of federal mandates on state
and local governments.
(B) The issues addressed in the requests for information issued
pursuant to this section shall include the following:
(1) identification of federal mandates expressing broad federal
policies that would best be implemented on a state-by-state basis or
that could be resisted because of the unique circumstances that are
present in each state and because of the unnecessary burdens that
are created by federal regulations and policies;
(2) legal theories that support the right of each state to
implement or oppose federal mandates pursuant to the state's own
policies;
(3) practical methods, including the enactment of any state
legislation, by which the State may fully exercise its authority in the
implementation of federal mandates;
(4) recommendations regarding federal legislation that would
ensure that the states have the necessary authority to implement
federal directives in a manner that is consistent with state policy
and is suited to the needs of each state; and
(5) possible funding sources for federal mandate efforts and
opportunities for the State of South Carolina to match other funding
sources or to cooperate with other entities in working toward
federal mandate solutions.
(C) The requests for information prepared pursuant to this
section shall require that the initial responses be received by the
committee by December 15, 1995. The committee may prepare
additional requests for information to follow up and obtain further
details regarding the initial responses that were received.
SECTION 3. (A) The Advisory Commission on
Intergovernmental Relations shall examine the information received
through the requests for information and, based upon such
information, shall make recommendations to the General Assembly
on or before April 1, 1996, that includes the following:
(1) recommendations to the General Assembly regarding:
(a) contracts that the General Assembly may enter into
with specified persons or entities to conduct research, to analyze
certain subjects, or to provide other services regarding federal
mandates; or
(b) a request for proposals process to obtain bids for
contracts to provide services regarding federal mandates with the
intent that the contracts be entered into on or before June 1, 1996,
and that the results of any research or analysis performed under
such contracts be received by the General Assembly on or before
January 1, 1997; and
(2) estimates of the cost of the federal mandate efforts
recommended by the Commission under the provisions of this
section and recommendations regarding any possible public and
private sources of monies to fund such efforts, including any
appropriations by the General Assembly that may be required.
SECTION 4. Section 11-11-15 of the 1976 Code is amended to
read:
"Section 11-11-15. The functions of the State Budget and
Control Board in the preparation and submission to the General
Assembly of the recommended state budget are devolved upon the
Governor. Wherever the phrase `State Budget and Control Board'
appears in the context of preparing and submitting budget
recommendations to the General Assembly, it means the Governor.
In preparing the recommended state budget, the Governor may
consult with the State Treasurer, the Comptroller General, or other
state officials as needed. The Budget Division of the State Budget
and Control Board shall assist the Governor in preparing the budget
recommendations, but this function of the Budget Division may not
be construed as altering the overall management and administration
of the Budget Division as an entity of the State Budget and Control
Board. The Governor shall enforce the requirements of the
`federal mandates act' as provided in Article 7 of this
chapter."
SECTION 5. If any provision of this act or the application
thereof to any person or circumstance is held invalid, such
invalidity does not affect other provisions or applications of this act
that can be given effect without the invalid provision or application,
and to this end the provisions of this act are declared to be
severable.
SECTION 6. This act shall take effect upon approval by the
Governor and shall apply to any state regulation promulgated on or
after the date of approval.
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