[House Report 105-145]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-145
_______________________________________________________________________

 
TO CLARIFY THAT THE PROTECTIONS OF THE FEDERAL TORT CLAIMS ACT APPLY TO 
    THE MEMBERS AND PERSONNEL OF THE NATIONAL GAMBLING IMPACT STUDY 
                               COMMISSION

_______________________________________________________________________


 June 23, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                        [To accompany H.R. 1901]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1901) to clarify that the protections of the Federal 
Tort Claims Act apply to the members and personnel of the 
National Gambling Impact Study Commission, having considered 
the same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
Purpose and Summary........................................           2
Background and Need for the Legislation....................           2
Hearings...................................................           2
Committee Consideration....................................           2
Vote of the Committee......................................           3
Committee Oversight Findings...............................           3
Committee on Government Reform and Oversight Findings......           3
New Budget Authority and Tax Expenditures..................           3
Congressional Budget Office Cost Estimate..................           3
Constitutional Authority Statement.........................           4
Section-by-Section Analysis................................           4
Changes in Existing Law Made by the Bill, as Reported......           5

                          Purpose and Summary

    H.R. 1901 clarifies that the protections of the Federal 
Tort Claims Act apply to the members and personnel of the 
National Gambling Impact Study Commission.

                Background and Need for the Legislation

    Last year, Congress passed the National Gambling Impact 
Study Commission Act, Pub. L. No. 104-169, to provide for a 
comprehensive two-year study of the impact of gambling on the 
United States. The nine members of the Commission have been 
appointed, and they held their first meeting on June 20, 1997.
    Two members of the Commission have approached the Committee 
regarding their concerns about incurring personal liability for 
their work on the Commission. The Committee believes that the 
protections of the Federal Tort Claims Act (``FTCA'') cover 
members and employees of the Commission because it is an 
``independent establishment of the United States'' under 28 
U.S.C. Sec. 2671. Normally, under the FTCA, when someone sues a 
federal employee for acts occurring within the scope of his or 
her employment, the United States substitutes itself as the 
party, defends the action, and pays any judgment.
    The Committee attempted to resolve this matter by an 
exchange of letters with the Department of Justice. However, 
after several weeks of study, the Department was not able to 
come to a clear resolution of whether the Commission is or is 
not covered under FTCA. With the Commission beginning its work, 
the Committee decided to move forward with a legislative 
solution.
    H.R. 1901 provides that, for purposes of FTCA, the 
Commission is a federal agency and its members and employees 
are federal employees. The Department of Justice will still 
make the determination of whether the particular conduct at 
issue is within the scope of employment as it does in all FTCA 
cases. See 28 U.S.C. Sec. 2679. Thus, members and employees of 
the Commission will not receive any special treatment--rather, 
they will receive the same treatment as all other federal 
employees. This treatment will apply equally to all members and 
employees of the Commission. The Committee does not believe 
that the members and employees should have to put their 
personal assets at risk in order to serve their country in this 
important mission, and thus it has adopted this legislative 
solution.

                                Hearings

    Because of the need for action within a short time, the 
Committee held no hearings on H.R. 1901.

                        Committee Consideration

    On June 18, 1997, the full Committee met in open session 
and ordered reported favorably without amendment the bill, H.R. 
1901, by a voice vote, a quorum being present.

                         Vote of the Committee

    During its consideration of H.R. 1901, the Committee took 
no roll call votes.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI does not apply because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 1901, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 19, 1997.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Office has prepared 
the enclosed cost estimate for H.R. 1901, a bill to clarify 
that the protections of the Federal Tort Claims Act apply to 
the members and personnel of the National Gambling Impact Study 
Commission.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman, who can be reached at 226-2860.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

H.R. 1901--A bill to clarify that the protections of the Federal Tort 
        Claims Act apply to the members and personnel of the National 
        Gambling Impact Study Commission
    H.R. 1901 would ensure that members of the National 
Gambling Impact Study Commission are considered federal 
employees and thus would be eligible for the protections 
provided under the Federal Tort Claims Act (FTCA). The 
commission was established in 1996 to provide a two-year study 
of the effects of gambling on the United States. Under the 
FTCA, federal employees who are sued for acts occurring within 
the scope of their employment are defended by the federal 
government; the federal government substitutes itself for the 
party being sued.
    The Department of Justice could incur additional costs 
under H.R. 1901 to the extent that it becomes a party to 
litigation affecting the commission. Any such legal costs would 
be subject to the availability of appropriations. Any judgment 
rendered against the government from such potential litigation 
would be paid out of the Claims, Judgments, and Relief Acts 
account and would be considered direct spending. Because the 
commission has only recently begun to operate, CBO has no firm 
basis for predicating either the likelihood of possible 
litigation or the amounts of potential litigation costs or 
compensation, but these costs are not likely to be significant.
    Because enacting H.R 1901 could affect direct spending, 
pay-as-you-go procedures would apply to the bill. The bill does 
not contain any intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act of 1995 and would 
impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman, who can be reached at 226-2860. This estimate was 
approved by Paul N. Van de Water, Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, clause 8 of the Constitution.

                      Section-by-Section Analysis

Sec. 1.--Applicability of Federal Tort Claims Provisions
    Section 1 of H.R. 1901 amends the National Gambling Impact 
Study Commission Act to provide that, for purposes of the FTCA, 
the Commission is a federal agency and each of its members and 
personnel are employees of the Government. The Committee 
intends that the members and employees of the Commission should 
be treated the same as all other federal employees for purposes 
of FTCA and that all members and employees should receive this 
treatment.
Sec. 2.--Rule of Construction
    Section 2 of H.R. 1901 provides that the amendment made by 
Section 1 shall not be construed to imply that any other 
commission is not a -``federal agency'' or that the members or 
personnel of any other commission are not ``employees of the 
government'' for purposes of the FTCA. The Committee believes 
that temporary commissions are ``independent establishments of 
the United States'' under 28 U.S.C. Sec. 2671. However, the 
Department of Justice is the agency charged with implementing 
the FTCA, and it apparently does not accept this view. Thus, as 
a practical matter, the Committee could only provide relief for 
the members and employees of this Commission by passing H.R. 
1901. Notwithstanding that, the Committee has included the rule 
of construction in Section 2 to clarify that its explicit 
action in this case should not be read to imply that other 
commissions are not covered under the FTCA.
Sec. 3.--Effective Date
    Section 3 of H.R. 1901 provides that the amendment made by 
Section 1 is effective as of the original date of enactment of 
the National Gambling Impact Study Commission Act, August 3, 
1996.



         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

     SECTION 6 OF THE NATIONAL GAMBLING IMPACT STUDY COMMISSION ACT

SEC. 6. COMMISSION PERSONNEL MATTERS.

    (a) * * *
          * * * * * * *
    (e) Applicability of Federal Tort Claims Provisions.--For 
purposes of sections 1346(b) and 2401(b) and chapter 171 of 
title 28, United States Code, the Commission is a ``Federal 
agency'' and each of the members and personnel of the 
Commission is an ``employee of the Government''.
