1997 Regular Session
By: Representative Saucier
House Bill 328
AN ACT TO ESTABLISH PROCEDURES FOR STATE IMPLEMENTATION OF FEDERAL MANDATES; TO AMEND SECTIONS 27-103-117 AND 27-103-129, MISSISSIPPI CODE OF 1972, IN CONFORMITY WITH THE PROVISIONS OF THIS ACT; TO REPEAL SECTIONS 5-3-73 AND 5-3-79, MISSISSIPPI CODE OF 1972, WHICH REQUIRE THE JOINT LEGISLATIVE COMMITTEE ON PERFORMANCE EVALUATION AND EXPENDITURE REVIEW TO EVALUATE THE IMPLEMENTATION AND COST OF FEDERAL MANDATES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Federal Mandates Act."
SECTION 2. (1) The Legislature finds and declares that:
(a) The power to implement federal policies in and for Mississippi is central to the ability of the people of Mississippi to govern themselves under a federal system of government;
(b) Any implementation of federal policies in and for Mississippi by federal executive branch agencies that is contrary to fundamental notions of federalism and self-determination shall be identified and countered, if deemed necessary;
(c) There is an urgent need to modify federal mandates because the implementation of these mandates by the state unduly burdens the financial resources of local governments, the citizens of Mississippi and the state, and does not properly respect the rights of the state, local governments and citizens;
(d) The state government has an obligation to the public to protect the rights of Mississippi citizens under federal law while minimizing or eliminating additional cost or regulatory burdens on any citizen of the state;
(e) 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. Mississippi, 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 Mississippi. This authority has often been ignored by the federal government, and 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;
(f) Current federal regulatory mandates, as reflected in federal administrative regulations, guidelines and policies, often do not reflect the realities of the State of Mississippi, and federal regulators frequently do not understand the needs and priorities of the citizens of Mississippi;
(g) The citizens of this state can create and wish to create innovative solutions to Mississippi'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 Mississippi 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 federal agency or person which asserts the insufficiency;
(h) The provisions of this act 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 act 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, and free more moneys for other needs; and
(i) The purpose of this act is to ensure that federal mandates implemented in Mississippi comply with state policy as established by the Legislature.
(2) In enacting this act:
(a) The Legislature employs its legislative authority to establish that the people of the State of Mississippi, acting through their elected officials in Mississippi state government, have the responsibility and authority to establish policy for Mississippi pertaining to federal programs mandated in federal statutes.
(b) The intent of the Legislature is to assure the primacy of the State of Mississippi's legal and political authority to implement in and for Mississippi 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 Mississippi policy and exceed the lawful authority of the federal government or are not required by federal law.
SECTION 3. Whenever used in this act, the term "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 the following:
(a) The federal "Safe Drinking Water Act," 42 USCS Sec. 300f et seq., as amended;
(b) The federal "Clean Air Act," 42 USCS Sec. 7401 et seq., as amended;
(c) The federal "Water Pollution Control Act," 33 USCS Sec. 1251 et seq., as amended;
(d) The federal "Solid Waste Disposal Act," 42 USCS Sec. 3251 et seq., as amended;
(e) The federal "Resource Conservation and Recovery Act of 1976," 42 USCS Sec. 6901 et seq., as amended;
(f) The federal "Comprehensive Environmental Response, Compensation and Liability Act of 1980," 42 USCS Sec. 9601 et seq., as amended;
(g) The federal "Superfund Amendments and Reauthorization Act of 1986," P.L. 99-499, as amended;
(h) The federal "Endangered Species Act of 1973," 16 USCS Sec. 1531 et seq., as amended;
(i) The federal "Asbestos School Hazard Abatement Statute," 20 USCS Sec. 4011 et seq., as amended;
(j) The federal "Brady Handgun Violence Prevention Act of 1993," P.L. 101-336, as amended;
(k) The federal "Commercial Motor Vehicle Safety Act of 1986," 49 USCS Sec. 2501, as amended;
(l) The federal "Family and Medical Leave Act of 1993," P.L. 103-3, as amended;
(m) The federal "Emergency Planning and Community Right-to-Know Act," P.L. 99-145 and 99-499, as amended;
(n) The Federal, State and Local Partnership for Education Improvement Program, 20 USCS Sec. 1751 et seq., as amended;
(o) The federal "National Voter Registration Act of 1993," P.L. 103-31, as amended;
(p) The Federal School Lunch Program and School Breakfast Program, 42 USCS Secs. 1751 and 1773, as amended;
(q) The federal social services and Medicaid requirements, 42 USCS Sec. 1396, as amended;
(r) Federal highway safety programs; and
(s) The federal "Intermodal Surface Transportation Efficiency Act of 1991," P.L. 102-240, as amended.
SECTION 4. (1) 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 Mississippi policy or do not advance Mississippi policy in a cost-effective manner.
(2) Any agency of the executive department of state government that is authorized to develop a state program to implement any mandates contained in a federal statute shall develop the state program and promulgate any necessary regulations using the following criteria:
(a) 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;
(b) State programs should be developed with due consideration of the financial restraints of local governments, the citizens of Mississippi and the state; and
(c) 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 Mississippi citizens and local governments, and the long-range public health, safety and welfare of citizens of the state.
SECTION 5. (1) The Joint Legislative Budget Committee shall report to the Legislature regarding the proposed implementation of this section.
(2) (a) If any state program is authorized or mandated by a federal statute, no state appropriations for the program shall be enacted unless:
(i) The state program is necessary to protect the public health, safety and welfare;
(ii) The state program is necessary to implement the federal statute;
(iii) The operation of the state program benefits the state by providing a cost-effective implementation of the federal statute by the state, local government and business; or
(iv) 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.
(b) 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 Joint Legislative Budget Committee 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 Legislature thereon.
(c) The Legislature, after receiving a recommendation from the Joint Legislative Budget Committee, shall determine whether a state program is necessary and whether federal constitutional authority and state constitutional or statutory authority exist. The Legislature 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 Legislature'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.
(d) Before recommending to the Legislature any budget for a state agency that is charged with implementing federal mandates, the Legislative Budget Office and the Joint Legislative Budget Committee 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 Legislative Budget Office and the Joint Legislative Budget Committee regarding any changes in state statutes that are necessary to provide the state agency with the authority to implement state policies in such a way as to create additional savings or greater reductions in regulatory burdens. The Legislative Budget Office shall review and compile the information received from state agencies pursuant to this section and shall include recommendations in its proposed budget to the Legislature based upon such information.
(3) For purposes of this section, "state program" does not include any portion of a program that is funded with nontax or nonfee 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 Legislature.
SECTION 6. (1) The Joint Legislative Committee on Performance Evaluation and Expenditure Review ("PEER Committee") shall prepare one or more requests for information regarding federal mandates on or before August 30, 1997. The requests for information shall be directed to persons involved with or affected by federal mandates, including but not limited to the following:
(a) Public and private institutions of higher education both within and outside the State of Mississippi and individuals in such institutions who have developed a high degree of expertise in the subjects of federalism and federal mandates;
(b) Attorneys in private practice who have dealt with federal mandate litigation or research; and
(c) Organizations and foundations that have an interest in the issues of federalism and the imposition of federal mandates on state and local governments.
(2) The issues addressed in the requests for information issued pursuant to this section shall include the following:
(a) 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;
(b) Legal theories that support the right of each state to implement or oppose federal mandates pursuant to the state's own policies;
(c) Practical methods, including the enactment of any state legislation, by which the state may fully exercise its authority in the implementation of federal mandates;
(d) 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
(e) Possible funding sources for federal mandate efforts and opportunities for the State of Mississippi to match other funding sources or to cooperate with other entities in working towards federal mandate solutions.
(3) The requests for information prepared pursuant to this section shall require that the initial responses be received by the PEER Committee by October 15, 1997. The PEER Committee may prepare additional requests for information to follow up on and obtain further details regarding the initial responses that were received.
SECTION 7. (1) The PEER Committee shall examine the information received through the requests for information prepared pursuant to Section 6 of this act and, based upon the information, shall present a report to the Legislature on or before December 1, 1997, that includes the following:
(a) Recommendation to the Legislature regarding:
(i) Contracts that the state may enter into with specified persons or entities to conduct research, to analyze certain subjects or to provide other services regarding federal mandates; or
(ii) 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 February 1, 1998, and that the results of any research or analysis performed under such contracts be received by the Legislature on or before July 1, 1998; and
(b) Estimates of the cost of the federal mandate efforts recommended by the PEER Committee under the provisions of this section and recommendations regarding any possible public and private sources of moneys to fund such efforts, including any appropriations by the Legislature that may be required.
SECTION 8. Section 27-103-117, Mississippi Code of 1972, is amended as follows:
27-103-117. It shall be the duty of the Director of the Legislative Budget Office to familiarize himself with the operations, needs, requirements and anticipated expenses and income of all state agencies and, for such purpose, he shall have the authority to require any state agency to furnish him with any and all necessary information. Each state agency shall furnish the Legislative Budget Office with the information required by Section 5 of this act.
SECTION 9. Section 27-103-129, Mississippi Code of 1972, is amended as follows:
27-103-129. To enable the Legislative Budget Office to prepare such budget, it shall have full and plenary power and authority to require all general-fund and special-fund agencies and the Mississippi Department of Transportation and the Office of State Aid Road Construction of the Mississippi Department of Transportation to file a budget request with such information and in such form and in such detail as it may deem necessary and advisable, and it shall have the further power and authority to reduce or eliminate any item or items of requested appropriation by any state agency in the Legislative Budget Office's recommended budget to the Legislature. However, where any item of requested appropriation shall be so reduced or eliminated, the head of the agency involved shall have the right to appear before the appropriate legislative committee to urge a revision of the budget to restore the item reduced or eliminated. Beginning with the 1996 fiscal year, the budget requests shall include a definition of the mission of the agency, a description of the duties and responsibilities of the agency, financial data relative to the various programs operated by the agency and performance measures associated with each program of the agency. The performance measures to be contained within the agency budget request shall be developed by cooperative efforts of the Legislative Budget Office, the Department of Finance and Administration and the agency itself and shall be approved jointly by the Legislative Budget Office and the Department of Finance and Administration prior to inclusion within the agency budget request. Beginning with the 1996 fiscal year, the budget requests shall also include in an addendum format a five-year strategic plan for the agency which shall include, but not be limited to, the following items of information: (a) a comprehensive mission statement, (b) performance effectiveness objectives for each program of the agency for each of the five (5) years covered by the plan, (c) a description of significant external factors which may affect the projected levels of performance, (d) a description of the agency's internal management system utilized to evaluate its performance achievements in relationship to the targeted performance levels, (e) an evaluation by the agency of the agency's performance achievements in relationship to the targeted performance levels for the two (2) preceding fiscal years for which accounting records have been finalized. Beginning with the 1999 fiscal year, the budget requests shall include the information required by Section 5 of this act.
SECTION 10. 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 11. Sections 5-3-73 and 5-3-79, Mississippi Code of 1972, which require the Joint Legislative Committee on Performance Evaluation and Expenditure Review to evaluate the implementation and cost of federal mandates, are repealed.
SECTION 12. This act shall take effect and be in force from and after July 1, 1997.