[Senate Report 106-470]
[From the U.S. Government Publishing Office]
Calendar No. 902
106th Congress Report
SENATE
2d Session 106-470
_______________________________________________________________________
AMENDING THE INSPECTOR GENERAL ACT OF 1978 (5 U.S.C. APP.) TO ESTABLISH
POLICE POWERS FOR CERTAIN INSPECTOR GENERAL AGENTS ENGAGED IN OFFICIAL
DUTIES AND PROVIDE AN OVERSIGHT MECHANISM FOR THE EXERCISE OF THOSE
POWERS
__________
R E P O R T
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE
to accompany
S. 3144
TO AMEND THE INSPECTOR GENERAL ACT OF 1978 (5 U.S.C. APP.) TO ESTABLISH
POLICE POWERS FOR CERTAIN INSPECTOR GENERAL AGENTS ENGAGED IN OFFICIAL
DUTIES AND PROVIDE AN OVERSIGHT MECHANISM FOR THE EXERCISE OF THOSE
POWERS
October 3 (legislative day, September 22), 2000.--Ordered to be printed
__________
U.S. GOVERNMENT PRINTING OFFICE
79-010 WASHINGTON : 2000
COMMITTEE ON GOVERNMENTAL AFFAIRS
FRED THOMPSON, Tennessee, Chairman
WILLIAM V. ROTH, Jr., Delaware JOSEPH I. LIEBERMAN, Connecticut
TED STEVENS, Alaska CARL LEVIN, Michigan
SUSAN M. COLLINS, Maine DANIEL K. AKAKA, Hawaii
GEORGE VOINOVICH, Ohio RICHARD J. DURBIN, Illinois
PETE V. DOMENICI, New Mexico ROBERT G. TORRICELLI, New Jersey
THAD COCHRAN, Mississippi MAX CLELAND, Georgia
ARLEN SPECTER, Pennsylvania JOHN EDWARDS, North Carolina
JUDD GREGG, New Hampshire
Hannah S. Sistare, Staff Director and Counsel
William M. Outhier, Investigative Counsel
Henry R. Wray, Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Kenneth R. Boley, Minority Counsel
Darla D. Cassell, Chief Clerk
Calendar No. 902
106th Congress Report
SENATE
2d Session 106-470
======================================================================
AMENDING THE INSPECTOR GENERAL ACT OF 1978 (5 U.S.C. APP.) TO ESTABLISH
POLICE POWERS FOR CERTAIN INSPECTOR GENERAL AGENTS ENGAGED IN OFFICIAL
DUTIES AND PROVIDE AN OVERSIGHT MECHANISM FOR THE EXERCISE OF THOSE
POWERS
_______
October 3 (legislative day, September 22), 2000.--Ordered to be printed
_______
Mr. Thompson, from the Committee on Governmental Affairs, submitted the
following
R E P O R T
[To accompany S. 3144]
The Committee on Governmental Affairs, to which was
referred the bill (S. 3144) to amend the Inspector General Act
1978 (5 U.S.C. App.) to establish police powers for certain
Inspector General agents engaged in official duties and provide
an oversight mechanism for the exercise of those powers, having
considered the same, reports favorably thereon without an
amendment recommends that the bill do pass.
CONTENTS
I. Purpose and summary..............................................1
II. Background and need for legislation..............................2
III. Legislative history and committee consideration..................4
IV. Section-by-section analysis......................................4
V. Regulatory impact statement......................................7
VI. CBO cost estimate................................................7
VII. Changes in existing law..........................................8
I. Purpose and Summary
S. 3144 provides specific statutory authority for the
Attorney General to grant certain law enforcement powers to
presidentially-appointed Federal inspectors general (IGs) and
their investigative personnel. The purposes of the bill are to
alleviate administrative burdens, provide additional oversight
of the use of law enforcement authority by IGs, and to ensure
that criminal investigations are not interrupted by lapses in
the current deputation process.
II. Background and Need for Legislation
A. HISTORY OF LAW ENFORCEMENT AUTHORITY FOR INSPECTORS GENERAL
Criminal investigators for the IGs covered by S. 3144 have
been exercising law enforcement authorities for many years
under designations as Special Deputy U.S. Marshals. Beginning
in the mid-1980s the Department of Justice approved these
deputations on a case-by-case basis. However, as the role of
IGs has evolved, the need for such appointments was so
consistent and the volume of requests so large that ``blanket''
deputations evolved, deputizing all criminal investigators in a
particular IG office in a single action. Since 1995, virtually
all criminal investigators in the offices of the 23 covered IGs
have exercised law enforcement authorities in cases under
office-wide deputations. These deputations are renewed
biannually.
Each time that an IG office receives a blanket deputation,
it enters into a Memorandum of Understanding (MOU) with the
Department of Justice and the FBI. These MOUs provide the
training and operational requirements by which the deputized
agents must abide. Failure to follow the guidelines contained
in the MOUs could result in rescission of the deputation for
the IG office.
Currently, there are approximately 2,800 criminal
investigators in the offices of presidentially-appointed IGs.
According to testimony before the Committee, in the last
decade, the IGs achieved more than 122,000 successful criminal
prosecutions and were awarded over $13 billion in investigative
recoveries. In addition, federal agencies took more than 19,000
personnel actions based on IG investigations during the same
period.
B. PROBLEMS WITH THE DEPUTATION PROCESS
Lack of oversight. Because the deputation is renewed
biannually, the Attorney General and the FBI are provided with
the opportunity every two years to make a determination whether
each specific IG office continues to require law enforcement
authority and is using it appropriately. However, information
received by the Committee indicates that these biannual reviews
are cursory. Beyond the renewal process, there is no current
review of the use of the law enforcement authority by the IGs.
Delays in the renewal process. Biannual renewal of law
enforcement authority can result in delays that could endanger
ongoing criminal investigations. In fact, the Committee
received information that in at least one case a criminal
investigation was delayed while paperwork to renew a deputation
was being completed.
Burden of oversight and administration on the U.S. Marshals
Service. One of the reasons for the lack of oversight of use of
the law enforcement authority by the IGs is the extensive
burden placed on the U.S. Marshals Service. There are
approximately 2,800 qualified IG agents currently deputized.
Testimony before the Committee revealed that it is not possible
for the Marshals Service to maintain proper oversight over all
of the deputized agents in the IG offices. Further, the
administrative burden is great.
Potential liability. Concerns were raised before the
Committee that the blanket deputation process could lead
defendants to challenge actions taken by agents pursuant to
their law enforcement authority. To date, no such challenges
have been made.
C. NEED FOR THE LEGISLATION
S. 3144 would address each of the problems associated with
the current deputation process.
Additional oversight. S. 3144 requires that the IG offices
listed in the statute collectively enter into an MOU, in
consultation with the Attorney General, to establish an
external review process for ensuring that adequate internal
safeguards and management procedures continue to exist within
each office and any IG offices that later receive the
authority. The results of the periodic peer reviews must be
communicated in writing to the applicable IG and to the
Attorney General.The Attorney General is also required to
promulgate guidelines which shall govern the exercise of law
enforcement powers established in S. 3144. Historically, the FBI has
been involved in drafting the guidelines contained in the MOUs that
have governed the grant of authority by deputation. The Committee
expects that the Attorney General will continue to consult with the
Director of the FBI when promulgating guidelines pursuant to S. 3144.
The Committee understands from representatives of the Department of
Justice, including the FBI, and the IG community that the MOUs that
have governed the use of the authority granted by deputation are
acceptable. Therefore, the Committee expects that the guidelines
initially promulgated pursuant to S. 3144 will, at a minimum, contain
the training and operational provisions in the MOUs. The operational
provisions in the guidelines should at least include the MOUs' current
parameters for notification, referral, and coordination, and for
adherence to the Attorney General guidelines on General Crimes,
Racketeering Enterprise, and Domestic Security/Terrorism Investigations
and the Attorney General guidelines on sensitive investigative
techniques, including undercover officers and sensitive targets.
The Attorney General will retain the authority to suspend
or rescind law enforcement authority upon determining that the
work of a particular IG office would not be hampered without
the authority, that available assistance from other law
enforcement agencies is sufficient to meet its law enforcement
needs, that adequate internal safeguards and management
procedures do not exist to ensure proper exercise of its
authority, or that the IG office has not complied with the
guidelines promulgated pursuant to S. 3144. The peer review
process established under S. 3144 should provide the Attorney
General with more information to make such a determination than
is now available under the deputation process.
Elimination of delays in the renewal process. Because there
will no longer be a need to renew an IG office's deputation,
there will no longer be any danger that the renewal process
will interrupt an ongoing criminal investigation.
Burden of oversight and administration on the U.S. Marshals
Service. S. 3144 would end the deputation process currently in
place and therefore remove the existing burden on the U.S.
Marshals Service.
Potential liability. Once the law enforcement authority for
the affected IG offices is in statute, there will be no
question as to the validity of actions taken pursuant to the
Inspector General Act and relevant guidelines.
III. Legislative History and Committee Consideration Amendments and
Committee Action
On July 19, 2000, the Committee on Governmental Affairs
held a hearing to consider a legislative proposal to grant
statutory law enforcement authority to presidentially-appointed
IGs. The witnesses were the Honorable Joshua Gotbaum, Executive
Associate Director and Controller of the U.S. Office of
Management and Budget, the Honorable Gaston L. Gianni, Jr.,
Inspector General of the Federal Deposit Insurance Corporation
and Vice Chair of the President's Council on Integrity and
Efficiency, the Honorable Patrick E. McFarland, Inspector
General of the U.S. Office of Personnel Management, the
Honorable Kenneth Mead, Inspector General of the U.S.
Department of Transportation, and Nicholas M. Gess, Associate
Deputy Attorney General, U.S. Department of Justice. In
addition, Committee staff conducted numerous interviews with
interested parties. On September 27, 2000, the Committee on
Governmental Affairs considered this legislative proposal and,
by unanimous voice vote, ordered it reported as an original
bill. That bill is S. 3144.
IV. Section-by-Section Analysis
Section 1(a) of S. 3144 amends the Inspector General Act of
1978 (IG Act), 5 U.S.C. App., by adding a new subsection 6(e)
to that Act. The new subsection 6(e) establishes a statutory
basis for the exercise of law enforcement powers by IG
investigative personnel of the type they now are provided
administratively through United States Marshals Service
deputations.
Enumeration of law enforcement powers and their
limitations. Paragraph (1) of the new subsection 6(e) of the IG
Act provides that the Attorney General may authorize eligible
IG personnel to:
(A) carry a firearm while engaged in official duties
conducted under the IG Act or another statute, or as
expressly authorized by the Attorney General;
(B) make an arrest without a warrant while engaged in
official duties under the IG Act or another statute, or
as expressly authorized by the Attorney General, for
any offense against the United States committed in
their presence, or for any felony cognizable under the
laws of the United States if they have reasonable
grounds to believe that the person to be arrested has
committed or is committing such an offense or 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.
These law enforcement powers may be granted to IGs who are
appointed by the President under section 3 of the IG Act, their
subordinate Assistant IGs for Investigations, and special
agents supervised by their Assistant IGs for Investigations.
The term ``special agent'' is used to refer to individuals in
the Office of Personnel Management official occupational
classification ``Series 1811 Criminal Investigator.''
The authority does not extend to Assistant IGs for Audit or
other IG audit personnel. Existing authorities in the IG Act,
including administrative subpoena power, have been adequate for
the conduct of auditing activities without the need for the law
enforcement powers covered by subsection 6(e). Nor does the
authority extend to IGs who are appointed by their agency
heads. There have been legislative proposals to convert agency-
appointed IGs to presidentially-appointed status and to create
additional presidentially-appointed IG positions in federal
organizations that do not now have an IG. Any new
presidentially-appointed IG would beeligible for Attorney
General authorization of law enforcement powers under subsection 6(e),
regardless of whether their office was established before or after
enactment of S. 3144.
The law enforcement powers under subparagraphs (1)(A) and
(B) are restricted to eligible agents ``while engaged in
official duties.'' This reflects the view that limited-
jurisdiction federal agents generally should not be authorized
to carry firearms or make warrantless arrests while off-duty.
This limitation continues the current blanket deputation MOU
prohibition against carrying firearms and making arrests while
agents are on leave or otherwise off-duty.
Paragraph (1) makes clear that it supplements authority
otherwise provided by statute. It is not intended to limit in
any way IG powers already established. By the same token, the
bill does not expand the investigative jurisdiction of any IG's
office. Law enforcement powers are authorized only for
investigative activities within the scope of the IG Act or
other statute, or as expressly authorized by the Attorney
General.
Attorney General determination of need. Paragraph (2) of
subsection 6(e) establishes standards for the Attorney
General's initial determination of whether IG offices have
needs sufficient to justify the grant of law enforcement
powers. The standards require that all of the following
conditions be met:
(A) an IG office is significantly hampered in the
performance of its responsibilities by the lack of such
powers;
(B) 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 the proper exercise of such
powers.
These standards are derived from the 1984 Guidelines for
Legislation Involving Federal Criminal Law Enforcement
Authority, which have been applied by the executive branch
since that time to evaluate any request for new federal
statutory law enforcement powers for existing or proposed
federal entities.
The term ``initial determination'' is used to signify that
the Attorney General's review is a single event for each IG
office, and that there will not be a periodic Attorney General
reauthorization process. The lack of periodic reauthorization
is a significant distinction between the bill and the current
deputation process.
Exemption of deputized IG offices from determination of
need. Paragraph (3) of subsection 6(e) exempts from the
requirement for an Attorney General initial determination of
need the specified 23 IG offices that now exercise law
enforcement powers through deputation. These offices have
already met the standards of section 6(e)(2), described above.
Guidelines for the exercise of law enforcement powers.
Paragraph (4) requires the Attorney General to promulgate, and
revise as appropriate, guidelines to govern the exercise of the
law enforcement powers granted under subsection 6(e). Attorney
General guidelines, incorporated into the MOUs negotiated as
part of the deputation process, currently govern the 23
deputized IG offices. The intent of paragraph (4) is, in
essence, is to carry forward the current guidelines. The term
``guidelines'' is used to make clear that these are not
regulations subject to public notice, comment, or rulemaking
procedures under the Administrative Procedure Act.
Suspension or rescission of law enforcement powers.
Paragraph (5) of subsection 6(e) requires the Attorney General
to suspend or rescind law enforcement powers of any IG office
that no longer satisfies the eligibility requirements of
paragraph (2) or that has not complied with the guidelines
promulgated under paragraph (4).
Exemptions from judicial review. Paragraph (6) of
subsection 6(e) precludes judicial review of determinations by
the Attorney General under paragraph (2) or (5). Department of
Justice oversight of the exercise of law enforcement powers by
IG offices is an executive branch administrative process. It is
not intended to create third party rights or to raise issues
appropriate for litigation.
External reviews. Paragraph (7) of subsection 6(e) requires
the IG offices that already have been granted law enforcement
powers to establish a periodic external review process to
ensure that they have adequate internal safeguards and
management procedures for the exercise of those powers. The
same review process is to apply to any IG office that later
receives such powers under subsection 6(e). The external review
process will be conducted by members of the IG community. It
must be established in an MOU among the IGs within 180 days
following the enactment of S. 3144. The review process is to be
developed in consultation with the Attorney General, who shall
be provided a copy of the MOU that establishes it. The results
of each review shall be communicated to the applicable IG and
to the Attorney General.
Limitation on the scope of section 6(e). Paragraph (8) of
subsection 6(e) provides that none of its provisions shall
limit the exercise of law enforcement powers established
pursuant to other statutory authority, including Marshals
Service special deputations. Specific case and matter special
deputation remains available for IG agents, at the discretion
of the Department of Justice, and may be used for agents or
offices not authorized to exercise law enforcement powers under
subsection 6(e); for operations beyond the scope of subsection
6(e); and for operations between the date of enactment of the
bill and authorization of IG offices under subsection 6(e).
Some agencies have agency-specific statutory law enforcement
powers, which will not be affected by subsection 6(e). For
example, the Defense Criminal Investigative Service of the
Department of Defense and the IG office at the Department of
Agriculture exercise law enforcement powers established by
agency-specific statutes.
Promulgation of initial guidelines. Subsection 1(b) of S.
3144 contains additional provisions governing the guidelines
promulgated by the Attorney General under section 6(e)(4) of
the IG Act as they relate to the MOUs that now govern the
exercise of law enforcement powers by the 23 IG offices
referred to in paragraph 6(e)(3). It requires that the Attorney
General promulgate guidelines for these offices not later than
180 days after the date of enactment of the bill. It further
requires that the guidelines include, at a minimum, the
operational and training requirements in the memoranda of
understanding governing these offices. Finally, subsection 1(b)
provides that the current memoranda of understanding will
remain in effect until the guidelines under section 6(e)(4)
have been promulgated.
Effective dates. Subsection 1(c)(1) of S. 3144 provides
that the provisions of subsection (a) of the bill, which add
section 6(e) of the IG Act, shall become effective 180 days
after the date of enactment of the bill. Subsection 1(c)(2)
provides that subsection 1(b) of the bill, dealing with the
initial Attorney General guidelines, shall take effect on the
date of enactment.
V. Regulatory Impact Statement
Pursuant to paragraph 11(b) of rule XXVI of the Standing
Rules of the Senate, the Committee has considered the
regulatory impact that would be incurred in carrying out the
bill. The Committee finds that enactment of the bill will not
have significant regulatory impact.
VI. CBO Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 3, 2000.
Hon. Fred Thompson,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for a bill to amend the
Inspector General Act of 1978 (5 U.S.C. App.) to establish
police powers for certain inspector general agents engaged in
official duties and provide an oversight mechanism for the
exercise of those powers.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is John R.
Righter.
Sincerely,
Steven M. Lieberman
(For Dan L. Crippen, Director).
Enclosure.
A bill to amend the Inspector General Act of 1978 (5 U.S.C. App.) to
establish police powers for certain inspector general agents
engaged in official duties and provide an oversight mechanism
for the exercise of those powers
The bill would amend the Inspector General Act of 1978 to
authorize investigative agents in offices of federal inspectors
general to exercise certain law enforcement powers, such as
carrying a firearm and seeking and executing warrants for
arrests. Investigative agents have exercised such powers since
the mid-1980s through the granting of special deputy status by
the U.S. Marshals Service. The legislation would codify those
powers and remove the responsibility for authorizing and
overseeing the use of such powers from the Marshals Service.
Under the bill, the individual inspector general (IG) offices
would be responsible for supervising and controlling the day-
to-day use of the enforcement powers, with the Attorney General
providing additional oversight. In addition, the bill would
require IG offices to enter into an interagency memorandum of
understanding to establish a process to periodically peer
review the exercise of the law enforcement powers by each
office.
Because the bill would codify powers already exercised by
IG offices, and replace one system of review and oversight with
another, CBO estimates that implementing it would have no
significant effect on federal costs. The bill would not affect
direct spending or receipts, so 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 not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is John R. Righter.
The estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
VII. 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
S. 3144, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE V--GOVERNMENT ORGANIZATION AND EMPLOYEES APPENDICES
* * * * * * *
INSPECTOR GENERAL ACT OF 1978
* * * * * * *
SEC. 6. AUTHORITY OF INSPECTOR GENERAL; INFORMATION AND ASSISTANCE FROM
FEDERAL AGENCIES; UNREASONABLE REFUSAL; OFFICE
SPACE AND EQUIPMENT
* * * * * * *
(e)(1) In addition to the authority otherwise provided by
this Act, each Inspector General appointed under section 3, any
Assistant Inspectors 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
conducted under this Act or other statute, or as
expressly authorized by the Attorney General;
(B) make an arrest without a warrant while engaged in
official duties conducted under this Act or other
statute, or as expressly authorized by the Attorney
General, for any offense against the United States
committed in their 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) 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 Act as a result of
its 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) The Inspector General offices of the Department of
Commerce, Department of Education, Department of Energy,
Department of Health and Human Services, 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, and Social Security Administration are exempt
from the requirement of paragraph (2) of an initial
determination of eligibility by the Attorney General.
(4) 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) Powers authorized for an Office of Inspector General
under paragraph (1) shall 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).
(6) A determination by the Attorney General under paragraph
(2) or (5) shall not be reviewable in or by any court.
(7) 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 the date of enactment of this subsection,
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) 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.