5 U.S.C. § 406

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 406 - Authority of Inspector General

(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.

5 U.S.C. § 406

Pub. L. 117-286, §3(b), Dec. 27, 2022, 136 Stat. 4218.

Amendments Not Shown in TextThis section was derived from section 6 of the Inspector General Act of 1978, Pub. L. 95-452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 6 of Pub. L. 95-452 was amended by Pub. L. 117-263, div. E, title LII, §§52615261,, 52725261,, 136 Stat. 3238, 3239, prior to being repealed and reenacted as this section by Pub. L. 117-286, §§3(b), Dec. 27, 2022, 7, Dec. 27, 2022, 136 Stat. 4218, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117-286 set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 6 of Pub. L. 95-452 was amended as follows:(1) in subsection (c), by adding at the end the following:"(3) If the information or assistance that is the subject of a report under paragraph (2) is not provided to the Inspector General by the date that is 30 days after the report is made, the Inspector General shall submit a notice that the information or assistance requested has not been provided by the head of the establishment involved or the head of the Federal agency involved, as applicable, to the appropriate congressional committees."; and (2) in subsection (h)(4)- (A) in subparagraph (B), by striking "Government"; and (B) by amending subparagraph (C) to read as follows: "(C) Any other relevant congressional committee or subcommittee of jurisdiction."The word "Government" did not appear before "Reform" in the text of subsection (h)(4)(B) as enacted by Pub. L. 117-286. See Historical and Revision note below.For definition of "appropriate congressional committees" as seen in the above amendment by Pub. L. 117-263 see Amendments Not Shown in Text note set out under section 401 of this title.

HISTORICAL AND REVISION NOTE
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
406	5 U.S.C. App. (IGA §6)	Pub. L. 95-452, §6, Oct. 12, 1978, 92 Stat. 1104; Pub. L. 100-504, title I, §§107, 110(a), Oct. 18, 1988, 102 Stat. 2528, 2529; Pub. L. 107-296, title VIII, §812(a), Nov. 25, 2002, 116 Stat. 2222; Pub. L. 110-409, §§8, Oct. 14, 2008, 9, Oct. 14, 2008, 11, Oct. 14, 2008, 14, Oct. 14, 2008, 122 Stat. 4313-4316; Pub. L. 114-317, §§2, 5, 7 (B), Dec. 16, 2016, 130 Stat. 1595, 1603, 1606.

In subsection (a)(8), the words "maximum rate payable under section 5376 of this title" are substituted for "equivalent rate prescribed for grade GS-18 of the General Schedule by section 5332 of title 5, United States Code" for clarity and because of section 101(c) of the Federal Employees Pay Comparability Act of 1990 (enacted by section 529 of Public Law 101-509 (5 U.S.C. 5376 note)).In subsection (f)(7), the date "November 25, 2002" is substituted for "the date of enactment of this subsection" for clarity. Subsection (f) (formerly subsection (e)) of section 6 of the Inspector General Act of 1978 was enacted on November 25, 2002, by section 812(a) of the Homeland Security Act of 2002 (Public Law 107-296 116 Stat. 2222).In subsection (h)(4)(B), the words "Committee on Oversight and Reform" are substituted for "Committee on Oversight and Government Reform" on authority of rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

EDITORIAL NOTES

REFERENCES IN TEXTThe Federal Rules of Criminal Procedure, referred to in subsec. (a)(1)(C), are set out in the Appendix to Title 18, Crimes and Criminal Procedure.

STATUTORY NOTES AND RELATED SUBSIDIARIES

CHANGE OF NAMECommittee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

ESTABLISHMENT OF INSPECTORS GENERAL CRIMINAL INVESTIGATOR ACADEMY AND INSPECTORS GENERAL FORENSIC LABORATORY Pub. L. 106-422, §2, Nov. 1, 2000, 114 Stat. 1873, as amended by Pub. L. 117-286, §4(b)(10), Dec. 27, 2022, 136 Stat. 4343, provided that: "(a) INSPECTORS GENERAL CRIMINAL INVESTIGATOR ACADEMY.- "(1) ESTABLISHMENT.-There is established the Criminal Investigator Academy within the Department of the Treasury. The Criminal Investigator Academy is established for the purpose of performing investigator training services for offices of inspectors general created under chapter 4 of title 5, United States Code."(2) EXECUTIVE DIRECTOR.-The Criminal Investigator Academy shall be administered by an Executive Director who shall report to an inspector general for an establishment as defined in section 401 of title 5, United States Code-"(A) designated by the President's Council on Integrity and Efficiency; or"(B) if that council is eliminated, by a majority vote of the inspectors general created under chapter 4 of title 5, United States Code."(b) INSPECTORS GENERAL FORENSIC LABORATORY.-"(1) ESTABLISHMENT.-There is established the Inspectors General Forensic Laboratory within the Department of the Treasury. The Inspectors General Forensic Laboratory is established for the purpose of performing forensic services for offices of inspectors general created under chapter 4 of title 5, United States Code."(2) EXECUTIVE DIRECTOR.-The Inspectors General Forensic Laboratory shall be administered by an Executive Director who shall report to an inspector general for an establishment as defined in section 401 of title 5, United States Code-"(A) designated by the President's Council on Integrity and Efficiency; or"(B) if that council is eliminated, by a majority vote of the inspectors general created under chapter 4 of title 5, United States Code."(c) SEPARATE APPROPRIATIONS ACCOUNT.-[Amended section 1105 of Title 31, Money and Finance.] "(d) AUTHORIZATION OF APPROPRIATIONS.-There are authorized to carry out this section such sums as may be necessary for fiscal year 2001 and each fiscal year thereafter."