Current Status Bill Number:286 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19950110 Primary Sponsor:Lander All Sponsors:Lander, Leventis, Elliott, Hayes, Martin, Waldrep, Wilson, Rose, Rankin Drafted Document Number:RES9487.JAL Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Subject:Federal Mandates Act
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
Senate 19950110 Introduced, read first time, 11 SJ
referred to Committee
Senate 19941114 Prefiled, referred to Committee 11 SJ
View additional legislative information at the LPITS web site.
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:
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.