SENATE, No. 319
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Senator SCOTT
An Act concerning a State policy on implementation of federal programs mandated in federal statutes and supplementing Title 52 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. This act shall be known and may be cited as the "Federal Mandates Act."
2. The Legislature finds and declares that:
a. the intent of the Legislature is to assure the primacy of the State of New Jersey's legal and political authority to implement in and for New Jersey 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 New Jersey policy and exceed the lawful authority of the federal government or are not required by federal law;
b. the power to implement federal policies in and for New Jersey is central to the ability of the people of New Jersey to govern themselves under a federal system of government;
c. any implementation of federal policies in and for New Jersey by federal executive branch agencies that is contrary to fundamental notions of federalism and self-determination must be identified and countered;
d. 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 New Jersey, and the State and does not properly respect the rights of the State, local governments and citizens;
e. the State government has an obligation to the public to do what is necessary to protect the rights of New Jersey citizens under federal law while minimizing or eliminating any additional cost or regulatory burden on any citizen of the State;
f. 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. New Jersey, 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 New Jersey. 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;
g. current federal regulatory mandates, as reflected in federaladministrative regulations, guidelines, and policies, often do not reflect the realities of New Jersey, and federal regulators frequently do not understand the needs and priorities of the citizens of New Jersey;
h. the citizens of this State can create and wish to create innovative solutions to New Jersey'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 New Jersey 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; and
i. the provisions of the 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 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.
3. As used in this act, "federal statute" means a federal statute that is in accord with the United States Constitution imposing mandates on state or local governments, which includes, but is not limited to, the following: "Safe Drinking Water Act," 42 U.S.C. § 300f et al., as amended; "Clean Air Act," 42 U.S.C. §7401 et seq., as amended; "Water Pollution Control Act," 33 U.S.C. §1251 et seq., as amended; "Solid Waste Disposal Act," 42 U.S.C. §3251 et seq., as amended; "Resource Conservation and Recovery Act of 1976," 42 U.S.C. §6901 et al., as amended; "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," 42 U.S.C. §9601 et al., as amended; "Superfund Amendments and Reauthorization Act of 1986," Pub.L. 99-499, as amended; "Endangered Species Act of 1973," 16 U.S.C. §1531 et al., as amended; "Asbestos School Hazard Abatement Act of 1984," 20 U.S.C. §4011 et al., as amended; "Brady Handgun Violence Prevention Act," Pub.L. 103-159, as amended; "Commercial Motor Vehicle Safety Act of 1986," 49 U.S.C. §2701 et al., as amended; "Family and Medical Leave Act of 1993," Pub.L. 103-3, as amended; "Emergency Planning and Community Right-to-Know Act of 1986," Pub.L.99-145 and 99-499, as amended; the federal, state, and local partnership for education improvement program, 20 U.S.C. §1751 et seq., as amended; "National Voter Registration Act of 1993," Pub.L.103-31, as amended; the federal school lunch program and school breakfast program, 42 U.S.C. §§1751 and 1773, as amended; the federal social services and medicaid requirements, 42 U.S.C. §1396, as amended; federal highway safety programs; and "Intermodal Surface Transportation Efficiency Act of 1991," Pub.L.102-240, as amended.
4. 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 New Jersey policy or do not advance New Jersey policy in a cost-effective manner.
5. Any agency of the Executive Branch 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:
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 New Jersey, 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 New Jersey citizens and local governments, and the long-range public health, safety, and welfare of citizens of the State.
6. a. If any State program is authorized or mandated by a federal statute, no State appropriations for the program shall be enacted unless:
(1) the State program is necessary to protect the public health, safety, and welfare;
(2) the State program is necessary to implement the federal statute;
(3) 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; or
(4) 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 requests citations to the federal constitutional provisions and the State constitutional or statutory provisions that authorize the State program. The Joint Budget Oversight 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 Budget Oversight 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. Prior to recommending to the Legislature any budget for a State agency that is charged with implementing federal mandates, the Joint Budget Oversight 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 Joint Budget Oversight Committee 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 Joint Budget Oversight Committee shall review and compile the information received from State agencies pursuant to this section and shall make recommendations based upon such information to the Legislature.
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 Legislature.
The Joint Budget Oversight Committee shall report to the Legislature regarding the proposed implementation of this section.
7. a. The staff of the Office of Legislative Services shall prepare one or more requests for information regarding federal mandates on or before January 1, 1996. 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 New Jersey 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 New Jersey to match other funding sources or to cooperate with other entities in working towards federal mandate solutions.
c. The requests for information prepared pursuant to this section shall require that the initial responses be received by the staff of the Office of Legislative Services by March 15, 1996. The staff of the Office of Legislative Services may prepare additional requests for information to follow up and obtain further details regarding the initial responses that were received.
8. The staff of the Office of Legislative Services shall examine the information received through the requests for information prepared pursuant to section 7 and, based upon such information, shall present a report to the Legislature on or before April 1, 1996, that includes the following:
a. recommendations regarding (1) contracts that the Legislature may enter into with specified persons or entities to conduct research, to analyze certain subjects, or to provide other services regarding federal mandates or (2) a request for a 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 July 1, 1996, and that the results of any research or analysis performed under such contracts be received by the Legislature on or before December 1, 1996; and
b. estimates of the cost of the federal mandate efforts recommended by the staff of the Office of Legislative Services 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.
9. This act shall take effect immediately.
STATEMENT
This bill, entitled the "Federal Mandates Act," enunciates a policy of assuring the primacy of the State of New Jersey's legal and political authority to implement in New Jersey policies 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 New Jersey policy and exceed the lawful authority of the federal government or are not required by federal law. The bill seeks to better balance the exercise of the powers of the federal government and the powers reserved to the states and directs the State to implement federal statutes at the least possible cost, thereby freeing more moneys for other needs.
The bill provides that Executive Branch agencies and any State officer, official, or employee charged with implementing any federal statute shall exercise a critical view toward the provisions of any federal regulation, guideline, or policy that are inconsistent with New Jersey policy or do not advance New Jersey policy in a cost-effective manner. The Legislature also shall exercise a critical view toward the interpretation of the federal statutes. The bill declares that 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 for that program. In addition, the Office of Legislative Services is directed to prepare requests for information regarding federal mandates from a variety of sources and to reportwhat research and analysis on federal mandates might be funded by the Legislature.
The "Federal Mandates Act."