S 1193 Session 109 (1991-1992)
S 1193 General Bill, By Wilson, Hayes and Leventis
A Bill to enact the National Guard Mutual Assistance Counter-Drug Activities
Interstate Compact and to authorize the South Carolina National Guard to act
under the Compact.
01/16/92 Senate Introduced and read first time SJ-16
01/16/92 Senate Referred to Committee on General SJ-16
A BILL
TO ENACT THE NATIONAL GUARD MUTUAL ASSISTANCE
COUNTER-DRUG ACTIVITIES INTERSTATE COMPACT AND TO
AUTHORIZE THE SOUTH CAROLINA NATIONAL GUARD TO
ACT UNDER THE COMPACT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 25 of the 1976 Code is amended by adding:
"CHAPTER 21
National Guard Mutual Assistance Counter-Drug
Activities Interstate Compact
Section 25-21-10. The National Guard Mutual Assistance Counter-Drug Activities Interstate Compact, as set out in Section 25-21-20 is
enacted into law by this State with all other states legally joining therein.
Section 25-21-20. The contracting states agree that:
Article I
The purposes of this compact are to:
(A) Provide for mutual assistance and support among the party
states in the utilization of the national guard in drug interdiction,
counter-drug, and demand reduction activities.
(B) Permit the national guard of this State to enter into mutual
assistance and support agreements, on the basis of need, with one or
more law enforcement agencies operating within this State, for activities
within this State, or with a national guard of one or more other states,
whether said activities are within or without this State in order to
facilitate and coordinate efficient, cooperative enforcement efforts
directed toward drug interdiction, counter-drug activities, and demand
reduction.
(C) Permit the national guard of this State to act as a receiving and
a responding state as defined within this compact to insure the prompt
and effective delivery of national guard personnel, assets, and services
to agencies or areas that are in need of increased support and presence.
(D) Permit and encourage a high degree of flexibility in the
deployment of national guard forces in the interest of efficiency.
(E) Maximize the effectiveness of the national guard in those
situations which call for its utilization under this compact.
(F) Provide protection for the rights of national guard personnel
when performing duty in other states in counter-drug activities.
(G) Ensure uniformity of state laws in the area of national guard
involvement in interstate counter-drug activities by incorporating said
uniform laws within the compact.
Article II
(A) This compact shall enter into force when enacted into law by
any two states. Thereafter, this compact shall become effective as to any
other state upon its enactment thereof.
(B) Any party state may withdraw from this compact by enacting
a statute repealing the same, but no such withdrawal shall take effect
until one year after the governor of the withdrawing state has given
notice in writing of such withdrawal to the governors of all other party
states.
Article III
(A) As used in this article:
(1) `Drug interdiction and counter-drug activities' means the
use of national guard personnel, while not in Federal service, in any law
enforcement support activities that are intended to reduce the supply or
use of illegal drugs in the United States. These activities include, but are
not limited to:
(a) providing information obtained during either the normal
course of military training or operations or during counter-drug
activities, to Federal, State, or local law enforcement officials that may
be relevant to a violation of any Federal or State law within the
jurisdiction of such officials;
(b) making available any equipment (including
associated supplies or spare parts), base facilities, or research facilities
of the national guard to any Federal, State, or local civilian law
enforcement official for law enforcement purposes, in accordance with
other applicable law or regulation;
(c) providing available national guard personnel to train
Federal, State, or local civilian law enforcement in the operation and
maintenance of equipment, including equipment made available above,
in accordance with other applicable law;
(d) providing available national guard personnel to operate
and maintain equipment provided to Federal, State, or local law
enforcement officials pursuant to activities defined and referred to in this
compact.
(e) operating and maintaining of equipment and facilities of
the national guard or law enforcement agencies used for the purposes of
drug interdiction and counter-drug activities;
(f) providing available national guard personnel to operate
equipment for the detection, monitoring, and communication of the
movement of air, land, and sea traffic, to facilitate communications in
connection with law enforcement programs, to provide transportation for
civilian law enforcement personnel, and to operate bases of operations
for civilian law enforcement personnel;
(g) providing available national guard personnel,
equipment, and support for administrative, interpretive, analytic, or other
purposes;
(h) providing available national guard personnel and
equipment to aid Federal, State, and local officials and agencies
otherwise involved in the prosecution or incarceration of individuals
processed within the criminal justice system who have been arrested for
criminal acts involving the use, distribution or transportation of
controlled substances as defined in 21 U.S.C. 801 et seq. or otherwise
by law; in accordance with other applicable law.
(2) `Demand reduction' means providing available national
guard personnel, equipment, support and coordination to Federal, State,
local, and civic organizations, institutions, and agencies for the purposes
of the prevention of drug abuse and the reduction in the demand for
illegal drugs.
(3) `Requesting state' means the state whose governor
requested assistance in the area of counter-drug activities.
(4) `Responding state' means the state furnishing assistance,
or requested to furnish assistance in the area of counter-drug activities.
(5) `Law enforcement agency' means a lawfully established
Federal, State, or local public agency that is responsible for the
prevention and detection of crime and the enforcement of penal, traffic,
regulatory, game, immigration, postal, customs, or controlled substances
laws.
(6) `Official' means the appointed, elected, designated, or
otherwise duly selected representative of an agency, institution, or
organization authorized to conduct those activities for which support is
requested.
(7) `Mutual Assistance and Support Agreement' or `agreement'
means an agreement between the national guard of this State and one or
more law enforcement agencies or between the national guard of this
State and the national guard of one or more other states, consistence with
the purposes of this compact.
(8) `State' means each of the several States of the United
States, the District of Columbia, the Commonwealth of Puerto Rico or
a territory or possession of the United States.
(9) `Party state' refers to a state that has lawfully enacted this
compact.
(B) Upon the request of a governor of a party state for assistance
in the area of drug interdiction, counter-drug, and demand reduction
activities, the governor of a responding state shall have authority under
this compact to send without the borders of his or her state and place
under the temporary operational control of the appropriate national
guard or other military authorities of the requesting state, for the
purposes of providing such requested assistance, all or any part of the
national guard forces of his or her state as he or she may deem
necessary, and the exercise of his or her discretion in this regard shall be
conclusive.
(C) The governor of a party state may, within his or her discretion,
withhold the national guard forces of his or her state from such use and
recall any forces or part or member thereof previously deployed in a
requesting state.
(D) The national guard of this State is hereby authorized to engage
in counter-drug activities and demand reduction.
(E) The Adjutant General of this State, in order to further the
purposes of this compact, may enter into a mutual assistance and support
agreement with one or more law enforcement agencies of this State,
including federal law enforcement agencies operating within this State,
or with the national guard of one or more other party states to provide
personnel, assets, and services in the area of counter-drug activities, and
demand reduction provided that all parties to the agreement are not
specifically prohibited by law to perform said activities.
(F) The agreement must set forth the powers, rights, and
obligations of the parties to the agreement, where applicable as follows:
(1) its duration;
(2) the organization, composition, and nature of any separate
legal entity created thereby;
(3) the purpose of the agreement;
(4) the manner of financing the agreement and establishing
and maintaining its budget;
(5) the method to be employed in accomplishing the partial or
complete termination of the agreement and for disposing of property
upon such partial or complete termination;
(6) provision for administering the agreement, which may
include creation of a joint board responsible for such administration;
(7) the manner of acquiring, holding, and disposing of real and
personal property used in this agreement, if necessary;
(8) the minimum standards for national guard personnel
implementing the provisions of this agreement;
(9) the minimum insurance required of each party to the
agreement, if necessary;
(10) the chain of command or delegation of authority to be
followed by national guard personnel acting under the provisions of the
agreement;
(11) the duties and authority that the national guard personnel
of each party state may exercise; and
(12) any other necessary and proper matters.
Agreements prepared under the provisions of this statute are exempt
from any general law pertaining to intergovernmental agreements.
(G) As a condition precedent to an agreement becoming effective
under this part, the agreement must be submitted to and receive the
approval of the office of the attorney general of South Carolina. The
attorney general of South Carolina may delegate his or her approval
authority to the appropriate attorney for the South Carolina National
Guard subject to those conditions which he or she decides are
appropriate. Said delegation must be in writing.
(1) The attorney general, or his or her agent in the South
Carolina National Guard as stated above, shall approve an agreement
submitted to him or her under this part unless he or she finds that it is
not in proper form, does not meet the requirements set forth in this part,
or otherwise does not conform to the laws of South Carolina. If the
attorney general disapproves an agreement, he or she shall provide a
written explanation to the adjutant general of the national guard.
(2) If the attorney general, or his or her authorized agent as
stated above, does not disapprove an agreement within thirty days after
its submission to him or her, it is considered approved by him or her.
(H) Whenever national guard forces of any party state are engaged
in the performance of duties, in the area of drug interdiction, counter-drug, and demand reduction activities, pursuant to orders, they shall not
be held personally liable for any acts or omissions which occur during
the performance of their duty.
Article IV
(A) Nothing in this compact shall be construed as a waiver of any
benefits, privileges, immunities, or rights otherwise provided for
national guard personnel performing duty pursuant to Title 32 of the
United States Code nor shall anything in this compact be construed as
a waiver of coverage provided for under the Federal Tort Claims Act.
In the event that national guard personnel performing counter-drug
activities do not receive rights, benefits, privileges, and immunities
otherwise provided for national guard personnel as stated above, the
following provisions shall apply:
(1) Whenever national guard forces of any responding state
are engaged in another state in carrying out the purposes of this compact,
the members thereof so engaged shall have the same powers, duties,
rights, privileges, and immunities as members of national guard forces
of the requesting state. The requesting state shall save and hold
members of the national guard forces of responding states harmless from
civil liability, except as otherwise provided herein, for acts or omissions
which occur in the performance of their duty while engaged in carrying
out the purposes of this compact, whether responding forces are serving
the requesting state within the borders of the responding state or are
attached to the requesting state for purposes of operational control.
(2) Subject to the provisions of paragraphs (3), (4), and (5) of
this article, all liability that may arise under the laws of the requesting
state or the responding state(s), on account of or in connection with a
request for assistance or support shall be assumed and borne by the
requesting state.
(3) Any responding state rendering aid or assistance pursuant
to this compact shall be reimbursed by the requesting state for any loss
or damage to, or expense incurred in the operation of any equipment
answering a request for aid, and for the cost of the materials,
transportation, and maintenance of national guard personnel and
equipment incurred in connection with such request; provided, that
nothing herein contained shall prevent any responding state from
assuming such loss, damage, expense, or other cost.
(4) Unless there is a written agreement to the contrary, each
party shall provide, in the same amounts and manner as if they were on
duty within their state, for pay and allowances of the personnel of its
national guard units while engaged without the state pursuant to this
compact and while going to and returning from such duty pursuant to
this compact.
(5) Each party state providing for the payment of
compensation and death benefits to injured members and the
representatives of deceased members of its national guard forces in case
such members sustain injuries or are killed within their own state, shall
provide for the payment of compensation and death benefits in the same
manner and on the same terms in the event such members sustain injury
or are killed while rendering assistance or support pursuant to this
compact. Such benefits and compensation shall be deemed items of
expense reimbursable pursuant to paragraph (3) of this article.
(B) Officers and enlisted personnel of the national guard
performing duties subject to proper orders pursuant to this compact shall
be subject to and governed by the provisions of their home state Code
of Military Justice whether they are performing duties within or without
their home state. In the event that any national guard member commits,
or is suspected of committing, a criminal offense while performing
duties pursuant to this compact without his or her home state, he or she
may be returned immediately to his or her home state and said home
state shall be responsible for any disciplinary action to be taken.
However, nothing in this section shall abrogate the general criminal
jurisdiction of the state in which the offense occurred.
Article V
Nothing in this compact shall be construed to prevent the governor
of a party state from delegating any of his or her responsibilities or
authority respecting the national guard, provided that such delegation is
otherwise in accordance with law. For purposes of this compact,
however, the governor shall not delegate the power to request assistance
from another state.
Article VI
Nothing in this compact shall:
(A) authorize or permit national guard units or personnel to be
placed under the operational control of any person not having the
national guard rank or status required by law for the command in
question.
(B) Deprive a properly convened court of jurisdiction over an
offense or a defendant merely because of the fact that the national guard,
while performing duties pursuant to this compact, was utilized in
achieving an arrest or indictment.
Article VII
This compact shall be liberally construed so as to effectuate the
purposes thereof. The provisions of this compact shall be severable and
if any phrase, clause, sentence, or provision of this compact is declared
to be contrary to the Constitution of the United States or of any state or
the applicability thereof to any government, agency, person, or
circumstance is held invalid, the validity of the remainder of this
compact and the applicability thereof to any government, agency,
person, or circumstance shall not be affected thereby. If this compact
shall be held contrary to the constitution of any state participating
herein, the compact shall remain in full force and effect as to the
remaining party states and in full force and effect as to the state affected
as to all severable matters.
Section 25-21-30. This State adopts, as its substantive law, the
applicable provisions contained in the National Guard Mutual
Assistance Counter-Drug Activities Interstate Compact, thereby
specifically authorizing the South Carolina National Guard to conduct
drug interdiction, counter-drug, and demand reduction activities within
this State. The South Carolina National Guard is also authorized to
enter into mutual assistance and support agreements with law
enforcement agencies operating within this State for activities within this
State."
SECTION 2. This act takes effect upon approval by the Governor.
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