[Senate Report 105-402]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 631
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-402
_______________________________________________________________________


 
                       LAW ENFORCEMENT AGREEMENT

                                _______
                                

  October 9 (legislative day, October 2), 1998.--Ordered to be printed

_______________________________________________________________________


  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2248]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 2248) to allow for waiver and 
indemnification in mutual law enforcement agreements between 
the National Park Service and a State or political subdivision, 
when required by State law, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                         Purpose of the Measure

    The purpose of S. 2248 is to amend section 10 of the Act of 
August 18, 1970 to provide express authority for the National 
Park Service to enter into mutual aid agreements with adjacent 
law enforcement agencies.

                          Background and Need

    S. 2248 will provide express authority for the National 
Park Service to enter into mutual aid agreements with adjacent 
law enforcement agencies. The United States Park Police has 
maintained memoranda of understanding with local law 
enforcement agencies in Maryland, Virginia, San Francisco, and 
in and around New York City. The Park Rangers maintain 
memorandums of understanding with local law enforcement 
agencies surrounding individual park units. These agreements 
specify the circumstances under which these agencies will 
assist the Park Police and Park Rangers, and circumstances in 
which the Park Police and Park Rangers will assist other Law 
Enforcement Agencies. Both require, in law enforcement 
agreements, that each party must agree to indemnify and hold 
harmless the assisting agency from all claims by third parties 
for property damage or personal injury, which may arise out of 
the assisting agency's activities outside its respective 
jurisdiction.
    The Comptroller General issued a decision on August 16, 
1991, which stated that such indemnification clauses violate 
the Anti-deficiency Act (31 U.S.C. 1341(a)). The Comptroller 
General stated:

         Open-ended indemnification agreements should not be 
        entered into regardless of the existence of language of 
        limitations except with express congressional 
        acquiescence * * * Thus we recommend that the Park 
        Police obtain congressional approval for this type of 
        arrangement.

    Although the opinions of the Comptroller General are not 
binding on Executive Branch Departments, they often provide 
useful guidance on appropriations matters and related issues. 
The Comptroller General's opinion raises questions as to 
Department of the Interior's indemnification authority, which 
may impeded the Department's efforts to maintain 
intergovernmental cooperation in law enforcement activities in 
units of the National Park System.

                          Legislative History

    S. 2248 was introduced June 26, 1998 by Senator Murkowski 
at the request of the administration, and referred to the 
Committee on Energy and Natural Resources. The Subcommittee on 
National Parks, Historic Preservation, and Recreation held a 
hearing on S. 2248 on September 17, 1998.
    At its business meeting on September 24, 1998, the 
Committee on Energy and Natural Resources ordered S. 2248, 
favorably reported.

            Committee Recommendation and Tabulation of Votes

    The Committee on Energy and Natural Resources, in open 
business session on September 24, 1998, by a unanimous voice 
vote of a quorum present, recommends that the Senate pass S. 
2248, as described herein.

                           Summary of S. 2248

    S. 2248 amends Public Law 91-383 adding a new section c(3), 
which will provide express statutory authority for the National 
Park Service to use indemnification clauses in their mutual aid 
agreements with a state or political subdivision for law 
enforcement purposes, when required by state law.
    In addition, S. 2248 re-numbers paragraphs and makes minor 
technical corrections to Public Law 93-383.

                   Cost and Budgetary Considerations

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 1, 1998.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2248, a bill to 
allow for waiver and indemnification in mutual law enforcement 
agreements between the National Park Service and a state or 
political subdivision, when required by state law, and for 
other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

               congressional budget office cost estimate

S. 2248--A bill to allow for waiver and indemnification in mutual law 
        enforcement agreements between the National Park Service and a 
        state or political subdivision, when required by state law

    S. 2248 would authorize the Secretary of the Interior to 
waive all claims against state or local governments that enter 
into mutual law enforcement agreements with the National Park 
Service (NPS). Subject to the availability of appropriated 
funds, the NPS also would be authorized to indemnify these 
governments against third-party claims that may arise from 
actions taken by state or local police when assisting the NPS.
    According to information provided by the NPS, the agency 
has, since the early 1990s, executed agreements that contain 
mutual waivers and indemnification clauses with local law 
enforcement agencies in at least two states, Virginia and 
Maryland. Because S. 2248 would codify a practice that has 
already been in use by the NPS for several years, CBO expects 
that enacting S. 2248 would have no effect on the federal 
budget.
    S. 2248 would not affect direct spending or receipts; 
therefore, pay-as-you-go procedures would not apply. The bill 
contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and would have no 
significant impact on the budgets of state, local, or tribal 
governments.
    The CBO staff contact is Deborah Reis. This estimate was 
approved by Paul N. Van de Water, Assistant Director for Budget 
Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 2248. The bill is not a regulatory measure in 
the sense of imposing Government-established standards of 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from 
enactment of S. 2248, as ordered reported.

                        Executive Communications

    S. 2248 was introduced at the request of the 
Administration. On March 18, 1998, the Department of the 
Interior transmitted a letter to the Energy and Natural 
Resources Committee requesting that the bill be introduced and 
passed. A copy of the letter, and the testimony of the National 
Park Service follows:

                        Department of the Interior,
                                   Office of the Secretary,
                                    Washington, DC, March 18, 1998.
Hon. Albert Gore, Jr.,
President of the Senate,
Washington, DC.
    Dear Mr. President: Enclosed is a draft bill, ``To allow 
for waiver and indemnification in mutual law enforcement 
agreements between the National Park Service and a state or 
political subdivision, when required by state law, and for 
other purposes.''
    We recommend the bill be introduced, referred to the 
appropriate committee for consideration, and enacted.
    This amendment would provide express authority for the 
National Park Service to enter into mutual aid agreements with 
adjacent law enforcement agencies. Pursuant to statutory 
authorities, the Park Police have maintained memoranda of 
understandings with local law enforcement agencies in Maryland 
and Virginia. These agreements specify the circumstances under 
which these agencies will assist the Park Police. Both Maryland 
and Virginia laws require that each party must agree to 
indemnify and hold harmless the assisting agency from all 
claims by third parties for property damage or personal injury, 
which may arise out of the assisting agency's activities 
outside its respective jurisdiction.
    The Comptroller General issued a decision on August 16, 
1991, which stated that such indemnification clauses violate 
the Anti-deficiency Act (31 U.S.C. 1341(a)). The Comptroller 
General stated:
    ``[O]pen-ended indemnification agreements should not be 
entered into regardless of the existence of language of 
limitations except with express congressional acquiescence. * * 
* Thus we recommend that the Park Police obtain congressional 
approval for this type of arrangement.''
    The Comptroller General further recognized the importance 
of memoranda of understandings between the Park Police and 
local authorities for effective law enforcement, and stated, 
``* * * we will not object to the Park Police temporarily 
entering into revised agreements with the required 
indemnification clauses while congressional approval is being 
sought.
    Although the opinions of the Comptroller General are not 
binding on Executive Branch departments, they often provide 
useful guidance on appropriations matters and related issues. 
Because it raises questions as to Interior's indemnification 
authority, the Comptroller General's opinion may impede 
Interior's efforts to maintain intergovernmental cooperation in 
the policing of national parks. The amendment that we have 
proposed would eliminate this potential impediment.
    The Office of Management and Budget has advised that there 
is no objection to the enactment of the enclosed draft 
legislation from the standpoint of the Administration's 
program.
            Sincerely,
                                      Donald Barry,
                             Acting Assistant Secretary for
                                       Fish and Wildlife and Parks.
                                ------                                


   Statement of Destry Jarvis, Assistant Director, External Affairs, 
           National Park Service, Department of the Interior

    Mr. Chairman, thank you for the opportunity to present the 
Department's views on S. 2248, a bill to allow for waiver and 
indemnification in mutual law enforcement agreements between 
the National Park Service and a State or political subdivision, 
when required by State law, and for other purposes.
    The Administration submitted a proposal to Congress on 
March 18, 1998, to address this issue. Sen. Murkowski 
introduced the legislation as S. 2248 on June 26, 1998. The 
language is identical to our proposal, and we strongly support 
it.
    S. 2248 would amend 16 U.S.C. Sec. 1a-6(c) to implement the 
recommendations contained in a 1991 decision of the Comptroller 
General. This decision addresses indemnification clauses in 
memoranda of understandings between the United States Park 
Police and local law enforcement agencies in Maryland and 
Virginia. The Comptroller General suggested that congressional 
approval be obtained for this type of arrangement.
    This bill would provide express authority for the United 
States Park Police to enter into mutual aid agreements with 
adjacent law enforcement agencies in Maryland and Virginia. 
Pursuant to statutory authorities, the Park Police have 
maintained memoranda of understandings with these law 
enforcement agencies. These agreements specify the 
circumstances under which these agencies will assist the Park 
Police. Both Maryland and Virginia laws require that each party 
must agree to indemnify and hold harmless the assisting agency 
from all claims by third parties for property damage or 
personal injury, which may arise out of the assisting agency's 
activities outside its respective jurisdiction.
    The Comptroller General issued a decision on August 16, 
1991, which stated that such indemnification clauses violate 
the Anti-Deficiency Act. The Comptroller General further 
recognized the importance of such memoranda for effective law 
enforcement. As such, he did not object to ``temporarily 
entering into revised agreements with the required 
indemnification clauses'' while the Park Service sought 
congressional approval.
    Five years have passed since the Comptroller General's 
decision. Although the opinions of the Comptroller General are 
not binding on Executive Branch departments, they often provide 
useful guidance. Because the Comptroller General's opinion 
raises questions as to Interior's indemnification authority, it 
may impede Interior's efforts to maintain intergovernmental 
cooperation in the policing of national parks. We strongly 
support S. 2248, since it would eliminate this potential 
problem, and we urge the committee to act favorably on this 
matter.
    This concludes my remarks. I would be happy to answer any 
questions you may have.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 2248, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

                  (Public Law 91-383, August 18, 1970)

    (c) The Secretary of the Interior is hereby authorized to--

           *       *       *       *       *       *       *

          (2) cooperate, within the National Park System, with 
        any State or political subdivision thereof in the 
        enforcement of supervision of the laws or ordinances of 
        that State or subdivision; [and]
          (3) waive, in any agreement pursuant to paragraph (1) 
        and (2) of this subsection with any state or political 
        subdivision thereof where state law requires such 
        waiver and indemnification, any and all claims against 
        all the other parties thereto and, subject to available 
        appropriations, indemnify and save harmless the other 
        parties to such agreement from all claims by third 
        parties for property damage or personnel injury, which 
        may arise out of the state or political subdivision's 
        activities outside their respective jurisdiction under 
        such agreement; and
          [(3)] (4) provide limited reimbursement, to a State 
        or its political subdivisions, in accordance with such 
        regulations as he may prescribe, where the State has 
        ceded concurrent legislative jurisdiction over the 
        affected area of the system, for expenditures incurred 
        in connection with its activities within that system 
        which were rendered pursuant to paragraph (1) of this 
        subsection.
          [(5) the] The  authorities provided by this 
        subsection shall supplement the law enforcement 
        responsibilities of the National Park Service, and 
        shall not authorize the delegation of law enforcement 
        responsibilities of the agency to State and local 
        governments.