5 U.S.C. § 406 — Authority of Inspector General

submitted 4 years ago by Pub. L. 117-286 to r/title-5-GOVERNMENT-ORGANIZATION-AND-EMPLOYEES · 2,755 words · no verdicts yet

in plain englishAI-generated · not legal advice

Each Inspector General gets broad power to investigate their agency. They can access records, issue subpoenas, take oaths, hire staff, and reach the agency head directly. Some Inspectors General can also carry firearms and make arrests, with Attorney General approval.

(a) In General. Beyond any other power this chapter gives, each Inspector General is authorized to: (1)(A) get timely access to all records, reports, audits, reviews, documents, papers, recommendations, and other material the agency has that relates to the Inspector General's responsibilities; (B) get that access despite any other law — unless a law passed by Congress specifically names the Inspector General and specifically limits that access; and (C) except as subsection (i) provides, get timely access to protected federal grand jury materials if the Attorney General approves the request under subsection (h); (2) investigate and report on the agency's programs and operations, whenever the Inspector General judges it necessary or useful; (3) ask any federal, state, or local government agency for information or help needed for the job; (4) issue a subpoena for information, documents, reports, records, or any tangible thing needed for the job — enforceable by a federal district court if someone refuses to comply — though subpoenas aren't used to get documents from other federal agencies; other procedures are used instead; (5) put any person under oath or take an affidavit, when needed for the job — this oath has the same legal weight whether taken before an Inspector General's staff member or before an officer with a formal seal; (6) get direct, prompt access to the head of the agency when needed; (7) hire staff needed to run the Office, following normal competitive-service and pay-classification rules; (8) get outside services at daily rates, capped at a set maximum rate; and (9) with advance funding from Congress, contract with public agencies or private parties for audits, studies, and other services. (b) Public Disclosure Otherwise Prohibited by Law. This section doesn't let an Inspector General publicly disclose information some other law already bars from disclosure. (c) Requests for Information. (1) When an Inspector General asks an agency for information or help, the agency head must provide it, as far as practical and not against any existing law or regulation. (2) If a request under (a)(1) or (a)(3) is unreasonably refused or ignored, the Inspector General must report that to the agency head right away. (d) Office Space and Supplies. Each agency head must give the Inspector General's office proper space, equipment, supplies, and communication tools, plus upkeep for all of it. (e) Applying Certain Provisions. (1) For a list of laws named below, each Office of Inspector General counts as its own separate agency, and the Inspector General has the powers of an agency head for those laws. Those laws are: the whistleblower-protection subchapter (subchapter II of chapter 35), several listed retirement-related sections (8335(b), 8336, 8344, 8414, 8425(b), 8468), and the rules covering the Senior Executive Service. (2) For one of those laws, section 4507(b), the Council of the Inspectors General on Integrity and Efficiency stands in for the Inspector General instead. (f) Additional Authority. (1) With the Attorney General's authorization, an Inspector General, an Assistant Inspector General for Investigations, or a special agent under one may: (A) carry a firearm on official duty; (B) make a warrantless arrest for a federal offense committed in their presence, or for a felony they have reasonable grounds to believe the person committed; and (C) seek and carry out arrest, search, or seizure warrants based on probable cause. (2) The Attorney General can only grant these powers after finding that: (A) the Office is significantly hampered without them; (B) help from other law enforcement isn't enough; and (C) the Office has adequate internal safeguards and procedures to use the powers properly. (3) A long list of major agencies' Inspector General offices (Commerce, Education, Energy, HHS, Homeland Security, HUD, Interior, Justice, Labor, State, Transportation, Treasury, Veterans Affairs, USAID, EPA, FDIC, FEMA, GSA, NASA, NRC, OPM, Railroad Retirement Board, SBA, SSA, and TVA) are exempt from needing this initial determination. (4) The Attorney General must issue and update guidelines for using these powers. (5)(A) The Attorney General can take these powers away from a whole Office if it stops meeting the requirements in (2), or breaks the guidelines. (B) The Attorney General can take these powers away from one individual the same way. (6) The Attorney General's decisions under (2) or (5) cannot be reviewed by any court. (7) The exempt offices listed in (3) must jointly set up, within 180 days of November 25, 2002, a memorandum of understanding creating a periodic external review process — done by another Office of Inspector General or a committee of Inspectors General — to check that safeguards stay in place; results go in writing to the Inspector General involved and to the Attorney General. (8) None of this limits law enforcement powers an Inspector General has under some other law, including deputation by the U.S. Marshals Service. (9) In this subsection, "Inspector General" means one appointed under section 403 or section 415. (g) Budgets. (1) Each year, an Inspector General sends a budget request to the head of their establishment, spelling out the total funds requested, the amount for training (with a certification that it covers all training needs), and any resources needed to support the Council of the Inspectors General on Integrity and Efficiency. (2) When the establishment head sends their own proposed budget to the President, they must include the Inspector General's requested amount, training amounts, Council support amounts, and any comments the Inspector General wants attached. (3) The President's budget, sent to Congress, must include a separate statement of the Inspector General's original request, what the President is actually requesting for the Inspector General, for training, and for Council support, plus any comments from the Inspector General — if the Inspector General believes the President's proposed budget would substantially interfere with doing the job. (h) Federal Grand Jury Materials. (1) If an Inspector General asks their establishment head for grand jury materials under (a)(1), the establishment head must immediately tell the Attorney General. (2) The Attorney General has 15 days to grant or deny the request, and must notify the establishment head right away. The request must be granted unless the Attorney General finds it would likely: (A) interfere with an ongoing criminal case; (B) interfere with an undercover operation; (C) expose a confidential source, including a protected witness; (D) seriously threaten national security; or (E) significantly hurt U.S. trade or economic interests. (3)(A) The establishment head must tell the Inspector General what the Attorney General decided. (B) The Inspector General may send comments on that decision to the congressional committees listed in (4). (4) If the Attorney General denies a request, within 30 days the Attorney General must send a statement explaining the denial to: (A) three named Senate committees; (B) three named House committees; and (C) any other appropriate congressional committees. (i) Non-applicability of Certain Provisions to Requests From Inspector General of Department of Justice. Subsections (a)(1)(C) and (h) don't apply to the Justice Department's own Inspector General. (j) Computerized Comparisons. (1) "Agency," "matching program," "record," and "system of records" mean what section 552a(a) of title 5 (the Privacy Act) says they mean. (2) A computerized comparison of federal record systems — or of a federal system against other records — done by or with an Inspector General as part of an audit, investigation, inspection, evaluation, or review, doesn't count as a "matching program" under the Privacy Act or any other law. (3) But this doesn't block an Inspector General from using matching-program authority granted by some other law. (k) Non-Applicability of Federal Information Policy. The Paperwork Reduction Act's information-collection rules (subchapter I of chapter 35 of title 44) don't apply to information collected during an audit, investigation, inspection, evaluation, or review by the Council of the Inspectors General on Integrity and Efficiency or by any Office of Inspector General, including a Special Inspector General's office.

the actual law source: uscode.house.gov ↗public domain

(a)In General.—

In addition to the authority otherwise provided by this chapter, each Inspector General, in carrying out the provisions of this chapter, is authorized—

(1)

(A)

to have timely access to all records, reports, audits, reviews, documents, papers, recommendations, or other materials available to the applicable establishment which relate to the programs and operations with respect to which that Inspector General has responsibilities under this chapter;

(B)

to have access under subparagraph (A) notwithstanding any other provision of law, except pursuant to any provision of law enacted by Congress that expressly—

(i)

refers to the Inspector General; and

(ii)

limits the right of access of the Inspector General; and

(C)

except as provided in subsection (i), with regard to Federal grand jury materials protected from disclosure pursuant to rule 6(e) of the Federal Rules of Criminal Procedure, to have timely access to such information if the Attorney General grants the request in accordance with subsection (h);

(2)

to make such investigations and reports relating to the administration of the programs and operations of the applicable establishment as are, in the judgment of the Inspector General, necessary or desirable;

(3)

to request such information or assistance as may be necessary for carrying out the duties and responsibilities provided by this chapter from any Federal, State, or local governmental agency or unit thereof;

(4)

to require by subpoena the production of all information, documents, reports, answers, records, accounts, papers, and other data in any medium (including electronically stored information), as well as any tangible thing and documentary evidence necessary in the performance of the functions assigned by this chapter, which subpoena, in the case of contumacy or refusal to obey, shall be enforceable by order of any appropriate United States district court, but procedures other than subpoenas shall be used by the Inspector General to obtain documents and information from Federal agencies;

(5)

to administer to or take from any person an oath, affirmation, or affidavit, whenever necessary in the performance of the functions assigned by this chapter, which oath, affirmation, or affidavit when administered or taken by or before an employee of an Office of Inspector General designated by the Inspector General shall have the same force and effect as if administered or taken by or before an officer having a seal;

(6)

to have direct and prompt access to the head of the establishment involved when necessary for any purpose pertaining to the performance of functions and responsibilities under this chapter;

(7)

to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office subject to the provisions of this title, governing appointments in the competitive service, and the provisions of chapter 51 and subchapter III of chapter 53 of this title relating to classification and General Schedule pay rates;

(8)

to obtain services as authorized by section 3109 of this title, at daily rates not to exceed the maximum rate payable under section 5376 of this title; and

(9)

to the extent and in such amounts as may be provided in advance by appropriations Acts, to enter into contracts and other arrangements for audits, studies, analyses, and other services with public agencies and with private persons, and to make such payments as may be necessary to carry out the provisions of this chapter.

(b)Public Disclosure Otherwise Prohibited by Law.—

Nothing in this section shall be construed as authorizing an Inspector General to publicly disclose information otherwise prohibited from disclosure by law.

(c)Requests for Information.—

(1)Compliance in general.—

Upon request of an Inspector General for information or assistance under subsection (a)(3), the head of any Federal agency involved shall, insofar as is practicable and not in contravention of any existing statutory restriction or regulation of the Federal agency from which the information is requested, furnish to the Inspector General, or to an authorized designee, the requested information or assistance.

(2)Unreasonable refusal.—

Whenever information or assistance requested under subsection (a)(1) or (a)(3) is, in the judgment of an Inspector General, unreasonably refused or not provided, the Inspector General shall report the circumstances to the head of the establishment involved without delay.

(d)Office Space and Supplies.—

Each head of an establishment shall provide the Office within the establishment with appropriate and adequate office space at central and field office locations of the establishment, together with such equipment, office supplies, and communications facilities and services as may be necessary for the operation of the offices, and shall provide necessary maintenance services for the offices and the equipment and facilities provided.

(e)Applying Certain Provisions.—

(1)Each office considered separate agency.—

(A)

For purposes of applying the provisions of law identified in subparagraph (B)—

(i)

each Office of Inspector General shall be considered to be a separate agency; and

(ii)

the Inspector General who is the head of an office referred to in clause (i) shall, with respect to that office, have the functions, powers, and duties of an agency head or appointing authority under such provisions.

(B)

This paragraph applies with respect to the following provisions of this title:

(i)

Subchapter II of chapter 35.

(ii)

Sections 8335(b), 8336, 8344, 8414, 8425(b), and 8468.

(iii)

All provisions relating to the Senior Executive Service (as determined by the Office of Personnel Management), subject to paragraph (2).

(2)Applying section 4507(b).—

For purposes of applying section 4507(b) of this title, paragraph (1)(A)(ii) shall be applied by substituting “the Council of the Inspectors General on Integrity and Efficiency (established by section 424 of this title) shall” for “the Inspector General who is the head of an office referred to in clause (i) shall, with respect to that office,”.

(f)Additional Authority.—

(1)In general.—

In addition to the authority otherwise provided by this chapter, each Inspector General, any Assistant Inspector General for Investigations under such an Inspector General, and any special agent supervised by such an Assistant Inspector General may be authorized by the Attorney General to—

(A)

carry a firearm while engaged in official duties as authorized under this chapter or other statute, or as expressly authorized by the Attorney General;

(B)

make an arrest without a warrant while engaged in official duties as authorized under this chapter or other statute, or as expressly authorized by the Attorney General, for any offense against the United States committed in the presence of such Inspector General, Assistant Inspector General, or agent, or for any felony cognizable under the laws of the United States if such Inspector General, Assistant Inspector General, or agent has reasonable grounds to believe that the person to be arrested has committed or is committing such felony; and

(C)

seek and execute warrants for arrest, search of a premises, or seizure of evidence issued under the authority of the United States upon probable cause to believe that a violation has been committed.

(2)Determination.—

The Attorney General may authorize exercise of the powers under this subsection only upon an initial determination that—

(A)

the affected Office of Inspector General is significantly hampered in the performance of responsibilities established by this chapter as a result of the lack of such powers;

(B)

available assistance from other law enforcement agencies is insufficient to meet the need for such powers; and

(C)

adequate internal safeguards and management procedures exist to ensure proper exercise of such powers.

(3)Exemptions from requirement of initial determination of eligibility.—

The Inspector General offices of the Department of Commerce, Department of Education, Department of Energy, Department of Health and Human Services, Department of Homeland Security, Department of Housing and Urban Development, Department of the Interior, Department of Justice, Department of Labor, Department of State, Department of Transportation, Department of the Treasury, Department of Veterans’ Affairs, Agency for International Development, Environmental Protection Agency, Federal Deposit Insurance Corporation, Federal Emergency Management Agency, General Services Administration, National Aeronautics and Space Administration, Nuclear Regulatory Commission, Office of Personnel Management, Railroad Retirement Board, Small Business Administration, Social Security Administration, and the Tennessee Valley Authority are exempt from the requirement of paragraph (2) for an initial determination of eligibility by the Attorney General.

(4)Guidelines.—

The Attorney General shall promulgate, and revise as appropriate, guidelines which shall govern the exercise of the law enforcement powers established under paragraph (1).

(5)Rescinding or suspending powers.—

(A)Powers authorized for an office of inspector general.—

Powers authorized for an Office of Inspector General under paragraph (1) may be rescinded or suspended upon a determination by the Attorney General that any of the requirements under paragraph (2) is no longer satisfied or that the exercise of authorized powers by that Office of Inspector General has not complied with the guidelines promulgated by the Attorney General under paragraph (4).

(B)Powers authorized to be exercised by an individual.—

Powers authorized to be exercised by any individual under paragraph (1) may be rescinded or suspended with respect to that individual upon a determination by the Attorney General that such individual has not complied with guidelines promulgated by the Attorney General under paragraph (4).

(6)Not reviewable.—

A determination by the Attorney General under paragraph (2) or (5) shall not be reviewable in or by any court.

(7)Memorandum of understanding.—

To ensure the proper exercise of the law enforcement powers authorized by this subsection, the Offices of Inspector General described under paragraph (3) shall, not later than 180 days after November 25, 2002, collectively enter into a memorandum of understanding to establish an external review process for ensuring that adequate internal safeguards and management procedures continue to exist within each Office and within any Office that later receives an authorization under paragraph (2). The review process shall be established in consultation with the Attorney General, who shall be provided with a copy of the memorandum of understanding that establishes the review process. Under the review process, the exercise of the law enforcement powers by each Office of Inspector General shall be reviewed periodically by another Office of Inspector General or by a committee of Inspectors General. The results of each review shall be communicated in writing to the applicable Inspector General and to the Attorney General.

(8)Not a limitation on other law enforcement powers.—

No provision of this subsection shall limit the exercise of law enforcement powers established under any other statutory authority, including United States Marshals Service special deputation.

(9)Definition of inspector general.—

In this subsection, the term “Inspector General” means an Inspector General appointed under section 403 of this title or an Inspector General appointed under section 415 of this title.

(g)Budgets.—

(1)Inspector general’s budget estimate and request transmitted to head of establishment or designated federal entity.—

For each fiscal year, an Inspector General shall transmit a budget estimate and request to the head of the establishment or designated Federal entity to which the Inspector General reports. The budget request shall specify the aggregate amount of funds requested for such fiscal year for the operations of that Inspector General and shall specify the amount requested for all training needs, including a certification from the Inspector General that the amount requested satisfies all training requirements for the Inspector General’s office for that fiscal year, and any resources necessary to support the Council of the Inspectors General on Integrity and Efficiency. Resources necessary to support the Council of the Inspectors General on Integrity and Efficiency shall be specifically identified and justified in the budget request.

(2)Head of establishment or designated federal entity’s proposed budget transmitted to president.—

In transmitting a proposed budget to the President for approval, the head of each establishment or designated Federal entity shall include—

(A)

an aggregate request for the Inspector General;

(B)

amounts for Inspector General training;

(C)

amounts for support of the Council of the Inspectors General on Integrity and Efficiency; and

(D)

any comments of the affected Inspector General with respect to the proposal.

(3)President’s budget submitted to congress.—

The President shall include in each budget of the United States Government submitted to Congress—

(A)

a separate statement of the budget estimate prepared in accordance with paragraph (1);

(B)

the amount requested by the President for each Inspector General;

(C)

the amount requested by the President for training of Inspectors General;

(D)

the amount requested by the President for support for the Council of the Inspectors General on Integrity and Efficiency; and

(E)

any comments of the affected Inspector General with respect to the proposal if the Inspector General concludes that the budget submitted by the President would substantially inhibit the Inspector General from performing the duties of the office.

(h)Federal Grand Jury Materials.—

(1)Notification of attorney general of request.—

If the Inspector General of an establishment submits a request to the head of the establishment for Federal grand jury materials pursuant to subsection (a)(1), the head of the establishment shall immediately notify the Attorney General of such request.

(2)Determination by attorney general.—

Not later than 15 days after the date on which a request is submitted to the Attorney General under paragraph (1), the Attorney General shall determine whether to grant or deny the request for Federal grand jury materials and shall immediately notify the head of the establishment of such determination. The Attorney General shall grant the request unless the Attorney General determines that granting access to the Federal grand jury materials would be likely to—

(A)

interfere with an ongoing criminal investigation or prosecution;

(B)

interfere with an undercover operation;

(C)

result in disclosure of the identity of a confidential source, including a protected witness;

(D)

pose a serious threat to national security; or

(E)

result in significant impairment of the trade or economic interests of the United States.

(3)Comments.—

(A)Requirement to inform inspector general of determination by attorney general.—

The head of the establishment shall inform the Inspector General of the establishment of the determination made by the Attorney General with respect to the request for Federal grand jury materials.

(B)Submission of comments by inspector general.—

The Inspector General of the establishment described under subparagraph (A) may submit comments on the determination submitted pursuant to such subparagraph to the committees listed under paragraph (4) that the Inspector General considers appropriate.

(4)Statement of attorney general regarding denial of request.—

Not later than 30 days after notifying the head of an establishment of a denial pursuant to paragraph (2), the Attorney General shall submit a statement that the request for Federal grand jury materials by the Inspector General was denied and the reason for the denial to each of the following:

(A)

The Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate.

(B)

The Committee on Oversight and Reform, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives.

(C)

Other appropriate committees and subcommittees of Congress.

(i)Non-applicability of Certain Provisions to Requests From Inspector General of Department of Justice.—

Subsections (a)(1)(C) and (h) shall not apply to requests from the Inspector General of the Department of Justice.

(j)Computerized Comparisons.—

(1)Definitions.—

In this subsection, the terms “agency”, “matching program”, “record”, and “system of records” have the meanings given those terms in section 552a(a) of title 5.

(2)Non-consideration of computerized comparisons as matching programs.—

For purposes of section 552a of title 5 or any other provision of law, a computerized comparison of two or more automated Federal systems of records, or a computerized comparison of a Federal system of records with other records or non-Federal records, performed by an Inspector General or by an agency in coordination with an Inspector General in conducting an audit, investigation, inspection, evaluation, or other review authorized under this chapter shall not be considered a matching program.

(3)Limitation.—

Nothing in this subsection shall be construed to impede the exercise by an Inspector General of any matching program authority established under any other provision of law.

(k)Non-Applicability of Federal Information Policy.—

Subchapter I of chapter 35 of title 44 shall not apply to the collection of information during the conduct of an audit, investigation, inspection, evaluation, or other review conducted by the Council of the Inspectors General on Integrity and Efficiency or any Office of Inspector General, including any Office of Special Inspector General.

Source credit: (Pub. L. 117–286, § 3(b), Dec. 27, 2022, 136 Stat. 4218.)

history & why it existsrecord from the source credit

2022Enacted · Pub. L. 117-286 · 136 Stat. 4218

A history note hasn’t been published yet. The record shows enactment by Pub. L. 117-286 on 2022-12-27.

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