§ 1-3-490 — National Guard Mutual Assistance Counterdrug Activities Compact.

The National Guard Mutual Assistance Counterdrug Activities Compact is hereby enacted into law and entered into by the State of South Carolina with all other states legally joining, in the form substantially as follows: THE NATIONAL GUARD MUTUAL ASSISTANCE COUNTERDRUG ACTIVITIES COMPACT ARTICLE I Purpose 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, counterdrug activities, 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 the activities are within or outside this State in order to facilitate and coordinate efficient, cooperative enforcement efforts directed toward drug interdiction, counterdrug activities, and demand reduction activities; (C) permit the National Guard of this State to act as a receiving and a responding state as defined within this compact and to ensure 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 situations which permit its utilization under this compact; (F) provide protection for the rights of National Guard personnel when performing duty in other states in counterdrug activities; and (G) ensure uniformity of state laws in the area of National Guard involvement in interstate counterdrug activities by incorporating the uniform laws within the compact. ARTICLE II Entry into Force and Withdrawal (A) This compact becomes effective when enacted by any two states. Thereafter, this compact becomes effective as to another state upon its enactment. (B) A party state may withdraw from this compact by enacting a statute repealing the compact, but no withdrawal shall take effect until one year after the governor of the withdrawing state has given notice in writing of the withdrawal to the governors of all other party states. ARTICLE III Mutual Assistance and Support (A) As used in this article: (1) "Drug interdiction and counterdrug activities" means the use of National Guard personnel, while not in federal service, in 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 counterdrug activities to federal, state, or local law enforcement officials that may be relevant to a violation of a federal or state law within the jurisdiction of these officials; (b) making available equipment, including associated supplies or spare parts, base facilities, or research facilities of the National Guard to a federal, state, or local civilian law enforcement official for law enforcement purposes, in accordance with other applicable law; (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 pursuant to this provision, 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) operation and maintenance of equipment and facilities of the National Guard or law enforcement agencies used for the purposes of drug interdiction and counterdrug 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; (g) providing available National Guard personnel, equipment, and support for administrative, interpretive, analytic, or other purposes; (h) providing available National Guard personnel and other 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 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 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 counterdrug activities. (4) "Responding state" means the state furnishing assistance, or requested to furnish assistance, in the area of counterdrug 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, or designated representative of an agency, institution, or organization authorized to conduct those activities for which support is requested. (7) "Mutual assistance and support 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, consistent with the purposes of this compact. (8) "Party state" means a state that has lawfully enacted this compact. (9) "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. (B) Upon the request of the governor of a party state for assistance in drug interdiction, counterdrug activities, and demand reduction activities, the governor of a responding state shall have authority under this compact to send to a requesting state and place under the temporary operational control of the appropriate National Guard or military authorities of that state, for the purposes of providing the requested assistance, all or a part of the National Guard forces of his state. The exercise of his discretion in this regard must be conclusive. (C) The governor of a party state may withhold the National Guard forces of his state from deployment in a requesting state and recall the forces deployed in a requesting state. (D) The National Guard of this State is authorized to engage in counterdrug activities and demand reduction activities. (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, and with the National Guard of other party states to provide personnel, assets, and services in the area of counterdrug activities and demand reduction activities provided that all parties to the agreement are not specifically prohibited by law to perform these activities. (F) The agreement must set forth the powers, rights, and obligations of the parties to the agreement, where applicable, as follows: (1) the duration of the agreement; (2) the organization, composition, and nature of a separate legal entity created by the agreement; (3) the purpose of the agreement; (4) the manner of financing the agreement and establishing and maintaining the budget of the agreement; (5) the method to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon a partial or complete termination; (6) provision for administering the agreement, which may include creation of a joint board responsible for its administration; (7) the manner of acquiring, holding, and disposing of real and personal property used in the agreement; (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; (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) other necessary and proper matters. (G) As a condition precedent to an agreement becoming effective, the agreement must be submitted to and receive the approval of the Office of the Attorney General of South Carolina. The Attorney General may delegate his approval authority to the appropriate attorney for the South Carolina National Guard subject to those conditions which he decides are appropriate. The delegation must be in writing and: (1) the Attorney General, or his agent in the South Carolina National Guard, shall approve an agreement submitted to him under this provision unless he finds that it is not in proper form, does not meet the requirements set forth in this provision, or does not conform to the laws of South Carolina. If the Attorney General disapproves an agreement, he shall provide a written explanation to the Adjutant General of the National Guard; (2) if the Attorney General, or his authorized agent, approves an agreement within thirty days after its submission to him, it is considered approved by him; (3) whenever National Guard forces of a party state are engaged in drug interdiction, counterdrug activities, and demand reduction activities, they personally must not be held liable for an act or omission which occurs during the performance of their duty. ARTICLE IV Responsibilities (A) Nothing in this compact may be construed as a waiver of benefits, privileges, immunities, or rights 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. If National Guard personnel performing counterdrug activities do not receive rights, benefits, privileges, and immunities provided for National Guard personnel provided in this section, then the following provisions apply: (1) Whenever National Guard forces of a responding state are engaged in another state in carrying out the purposes of this compact, the members engaged shall have the same powers, duties, rights, privileges, and immunities as members of the National Guard forces of the requesting state. The requesting state shall save and hold members of the National Guard forces of the responding state harmless from civil liability 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 items (3), (4), and (5) of this subsection, liability that may arise under the laws of the requesting state or the responding states, on account of or in connection with a request for assistance or support, must be assumed and borne by the requesting state. (3) A requesting state rendering aid or assistance pursuant to this compact must be reimbursed by the requesting state for loss or damage to, or expense incurred in the operation of, 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 the request, provided that nothing contained in this provision prevents a responding state from assuming the 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 in another state pursuant to this compact and while going to and returning from duty pursuant to this compact. (5) Each party state providing the payment of compensation and death benefits to injured members and the representatives of deceased members of its National Guard forces in case the 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 the members sustain injury or are killed while rendering assistance or support pursuant to this compact. These benefits and compensation are expense items reimbursable pursuant to item (3) of this subsection. (B) Officers and enlisted personnel of the National Guard performing duties pursuant to this compact must be subject to and governed by the provisions of their home state's Code of Military Justice whether they are performing duties within or outside their home state. If a National Guard member commits, or is suspected of committing, a criminal offense while performing duties pursuant to this compact outside his home state, he may be returned immediately to his home state and that state must be responsible for disciplinary action. However, nothing in this section abrogates the general criminal jurisdiction of the state in which the offense occurred. ARTICLE V Delegation Nothing in this compact must be construed to prevent the governor of a party state from delegating his responsibilities or authority respecting the National Guard, provided that this delegation is 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 Limitations Nothing in this compact shall: (1) authorize or permit National Guard units or personnel to be placed under the operational control of a person not having the National Guard rank or status required by law for the command in question; or (2) deprive a properly convened court of jurisdiction over an offense or a defendant because the National Guard, while performing duties pursuant to this compact, was utilized in achieving an arrest or indictment. ARTICLE VII Construction and Severability This compact must be liberally construed to effectuate its purpose. The provisions of this compact are severable and if a phrase, clause, sentence, or provision of this compact is declared to be contrary to the Constitution of the United States or of a state or its applicability to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and its applicability to any government, agency, person, or circumstance must not be affected. If this compact is held contrary to the Constitution of a participating state, the compact shall remain in full force and effect upon the remaining party state and in full force and effect upon the state affected as to all severable matters.

Legislative History

HISTORY: 1995 Act No. 113, SECTION 2. ARTICLE 9 Lieutenant Governor