[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 595 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 179
115th CONGRESS
  1st Session
                                 S. 595

                          [Report No. 115-133]

     To provide U.S. Customs and Border Protection with additional 
   flexibility to expedite the hiring process for applicants for law 
             enforcement positions, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 9, 2017

 Mr. Flake (for himself, Mr. McCain, Mr. Johnson, and Mrs. McCaskill) 
introduced the following bill; which was read twice and referred to the 
        Committee on Homeland Security and Governmental Affairs

                             July 24, 2017

               Reported by Mr. Johnson, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
     To provide U.S. Customs and Border Protection with additional 
   flexibility to expedite the hiring process for applicants for law 
             enforcement positions, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Anti-Border Corruption 
Reauthorization Act of 2017''.</DELETED>

<DELETED>SEC. 2. EXPANDED AUTHORITY TO WAIVE POLYGRAPH EXAMINATIONS FOR 
              CERTAIN APPLICANTS FOR LAW ENFORCEMENT POSITIONS WITH 
              U.S. CUSTOMS AND BORDER PROTECTION.</DELETED>

<DELETED>    Section 3 of the Anti-Border Corruption Act of 2010 (6 
U.S.C. 221) is amended by striking subsection (b) and inserting the 
following:</DELETED>
<DELETED>    ``(b) Waiver.--The Commissioner of U.S. Customs and Border 
Protection may waive the polygraph examination requirement under 
subsection (a)(1) for any of the following applicants:</DELETED>
        <DELETED>    ``(1) An applicant who, at the time the applicant 
        applies for a law enforcement position with U.S. Customs and 
        Border Protection, is a State or local law enforcement officer, 
        if the officer--</DELETED>
                <DELETED>    ``(A) has served as a State or local law 
                enforcement officer for not less than 3 years with no 
                break in service;</DELETED>
                <DELETED>    ``(B) is authorized by law to engage in or 
                supervise the prevention, detection, or investigation 
                of any violation of law, or the apprehension, arrest, 
                prosecution, or incarceration of any individual for any 
                violation of law;</DELETED>
                <DELETED>    ``(C) is not under investigation, has not 
                been found to have engaged in criminal activity or 
                serious misconduct, has not resigned from a position as 
                a law enforcement officer under investigation or in 
                lieu of termination, and has not been dismissed from a 
                position as a law enforcement officer; and</DELETED>
                <DELETED>    ``(D) has successfully completed a 
                polygraph examination as a condition of employment with 
                the applicant's law enforcement agency.</DELETED>
        <DELETED>    ``(2) An applicant who, at the time the applicant 
        applies for a law enforcement position with U.S. Customs and 
        Border Protection, is a Federal law enforcement officer, if the 
        officer--</DELETED>
                <DELETED>    ``(A) has served as a Federal law 
                enforcement officer for not less than 3 years with no 
                break in service;</DELETED>
                <DELETED>    ``(B) has authority to make arrests, 
                conduct investigations, conduct searches, make 
                seizures, bear firearms, and serve orders, warrants, 
                and other processes;</DELETED>
                <DELETED>    ``(C) is not under investigation, has not 
                been found to have engaged in criminal activity or 
                serious misconduct, has not resigned from a position as 
                a law enforcement officer under investigation or in 
                lieu of termination, and has not been dismissed from a 
                position as a law enforcement officer; and</DELETED>
                <DELETED>    ``(D) has undergone an in-scope Tier 4 
                background investigation or a Tier 5 single scope 
                background investigation as a condition of employment 
                with the applicant's law enforcement agency.</DELETED>
        <DELETED>    ``(3) An applicant who, at the time the applicant 
        applies for a law enforcement position with U.S. Customs and 
        Border Protection, is a transitioning member of the Armed 
        Forces, a veteran, or a member of the National Guard, if such 
        individual--</DELETED>
                <DELETED>    ``(A) has served in the Armed Forces for 
                not less than 4 years;</DELETED>
                <DELETED>    ``(B) holds, or has held during the 5 
                years preceding applying for the position, a Secret, 
                Top Secret, or Top Secret/Sensitive Compartmented 
                Information clearance and was not granted any waiver to 
                obtain such clearance;</DELETED>
                <DELETED>    ``(C) has undergone, during the 5 years 
                preceding applying for the position, an in-scope Tier 4 
                background investigation or a Tier 5 single scope 
                background investigation; and</DELETED>
                <DELETED>    ``(D) was discharged or released, or is 
                eligible to be discharged or released, from the Armed 
                Forces under honorable conditions and has not engaged 
                in criminal activity or serious misconduct under the 
                Uniform Code of Military Justice under chapter 47 of 
                title 10, United States Code.</DELETED>
<DELETED>    ``(c) Rule of Construction.--Nothing in this section shall 
be construed to authorize the Commissioner to hire an individual for a 
law enforcement position under subsection (a) who is not suitable for 
employment and eligible for a position designated as relating to 
national security.</DELETED>
<DELETED>    ``(d) Background Investigations.--An individual who 
receives a waiver under subsection (b) who holds a Tier 4 background 
investigation shall be subject to a Tier 5 single scope background 
investigation.</DELETED>
<DELETED>    ``(e) Authority To Administer Polygraph Examinations After 
Waiver.--The Commissioner may administer a polygraph examination to an 
individual who applied for a law enforcement position with U.S. Customs 
and Border Protection and received a waiver under subsection (b) if the 
Commissioner determines, based on information discovered before the 
completion of a background investigation of the individual, that a 
polygraph examination is necessary for the Commissioner to make a final 
determination with respect to the suitability of the individual for the 
position.</DELETED>
<DELETED>    ``(f) Definitions.--In this section:</DELETED>
        <DELETED>    ``(1) Federal law enforcement officer.--The term 
        `Federal law enforcement officer' means a `law enforcement 
        officer', as defined in section 8331(20) or 8401(17) of title 
        5, United States Code.</DELETED>
        <DELETED>    ``(2) Transitioning member of the armed forces.--
        The term `transitioning member of the Armed Forces' means a 
        member of the Armed Forces serving on active duty on the date 
        on which the member applies for a law enforcement position with 
        U.S. Customs and Border Protection who expects to be discharged 
        or released from the Armed Forces and plans to take a position 
        in the competitive service (as defined section 2102 of title 5, 
        United States Code).</DELETED>
        <DELETED>    ``(3) Veteran.--The term `veteran' has the meaning 
        given that term in section 101(2) of title 38, United States 
        Code.''.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Anti-Border Corruption 
Reauthorization Act of 2017''.

SEC. 2. HIRING FLEXIBILITY.

    Section 3 of the Anti-Border Corruption Act of 2010 (Public Law 
111-376; 6 U.S.C. 221) is amended by striking subsection (b) and 
inserting the following new subsections:
    ``(b) Waiver Authority.--The Commissioner of U.S. Customs and 
Border Protection may waive the application of subsection (a)(1) in the 
following circumstances:
            ``(1) In the case of a current, full-time law enforcement 
        officer employed by a State or local law enforcement agency, if 
        such officer--
                    ``(A) has served as a law enforcement officer for 
                not fewer than three years with no break in service;
                    ``(B) is authorized by law to engage in or 
                supervise the prevention, detection, investigation, or 
                prosecution of, or the incarceration of any person for, 
                any violation of law, and has statutory powers for 
                arrest or apprehension;
                    ``(C) is not currently under investigation, has not 
                been found to have engaged in criminal activity or 
                serious misconduct, has not resigned from a law 
                enforcement officer position under investigation or in 
                lieu of termination, and has not been dismissed from a 
                law enforcement officer position; and
                    ``(D) has, within the past ten years, successfully 
                completed a polygraph examination as a condition of 
                employment with such officer's current law enforcement 
                agency.
            ``(2) In the case of a current, full-time Federal law 
        enforcement officer, if such officer--
                    ``(A) has served as a law enforcement officer for 
                not fewer than three years with no break in service;
                    ``(B) has authority to make arrests, conduct 
                investigations, conduct searches, make seizures, carry 
                firearms, and serve orders, warrants, and other 
                processes;
                    ``(C) is not currently under investigation, has not 
                been found to have engaged in criminal activity or 
                serious misconduct, has not resigned from a law 
                enforcement officer position under investigation or in 
                lieu of termination, and has not been dismissed from a 
                law enforcement officer position; and
                    ``(D) holds a current Tier 4 background 
                investigation or current Tier 5 background 
                investigation.
            ``(3) In the case of an individual who is a member of the 
        Armed Forces (or a reserve component thereof) or a veteran, if 
        such individual--
                    ``(A) has served in the Armed Forces for not fewer 
                than three years;
                    ``(B) holds, or has held within the past five 
                years, a Secret, Top Secret, or Top Secret / Sensitive 
                Compartmented Information clearance;
                    ``(C) holds, or has undergone within the past five 
                years, a current Tier 4 background investigation or 
                current Tier 5 background investigation;
                    ``(D) received, or is eligible to receive, an 
                honorable discharge from service in the Armed Forces 
                and has not engaged in criminal activity or committed a 
                serious military or civil offense under the Uniform 
                Code of Military Justice; and
                    ``(E) was not granted any waivers to obtain the 
                clearance referred to subparagraph (B).
    ``(c) Termination of Waiver Authority.--The authority to issue a 
waiver under subsection (b) shall terminate on the date that is four 
years after the date of the enactment of the Anti-Border Corruption 
Reauthorization Act of 2017.''.

SEC. 3. SUPPLEMENTAL COMMISSIONER AUTHORITY AND DEFINITIONS.

    (a) Supplemental Commissioner Authority.--Section 4 of the Anti-
Border Corruption Act of 2010 (Public Law 111-376) is amended to read 
as follows:

``SEC. 4. SUPPLEMENTAL COMMISSIONER AUTHORITY.

    ``(a) Non-exemption.--An individual who receives a waiver under 
subsection (b) of section 3 is not exempt from other hiring 
requirements relating to suitability for employment and eligibility to 
hold a national security designated position, as determined by the 
Commissioner of U.S. Customs and Border Protection.
    ``(b) Background Investigations.--Any individual who receives a 
waiver under subsection (b) of section 3 who holds a current Tier 4 
background investigation shall be subject to a Tier 5 background 
investigation.
    ``(c) Administration of Polygraph Examination.--The Commissioner of 
U.S. Customs and Border Protection is authorized to administer a 
polygraph examination to an applicant or employee who is eligible for 
or receives a waiver under subsection (b) of section 3 if information 
is discovered prior to the completion of a background investigation 
that results in a determination that a polygraph examination is 
necessary to make a final determination regarding suitability for 
employment or continued employment, as the case may be.''.
    (b) Report.--The Anti-Border Corruption Act of 2010 is amended by 
adding at the end the following new section:

``SEC. 5. REPORTING REQUIREMENTS.

    ``(a) Annual Report.--Not later than one year after the date of the 
enactment of the Anti-Border Corruption Reauthorization Act of 2017, 
and annually thereafter while the waiver authority under section 3(b) 
is in effect, the Commissioner of U.S. Customs and Border Protection 
shall submit a report to Congress that includes, with respect to the 
reporting period--
            ``(1) the number of waivers requested, granted, and denied 
        under section 3(b);
            ``(2) the reasons for any denials of such waiver;
            ``(3) the percentage of applicants who were hired after 
        receiving a waiver;
            ``(4) the number of instances that a polygraph was 
        administered to an applicant who initially received a waiver 
        and the results of such polygraph;
            ``(5) an assessment of the current impact of the polygraph 
        waiver program on filling law enforcement positions at U.S. 
        Customs and Border Protection; and
            ``(6) additional authorities needed by U.S. Customs and 
        Border Protection to better utilize the polygraph waiver 
        program for its intended goals.
    ``(b) Additional Information.--The first report submitted under 
subsection (a) shall include--
            ``(1) an analysis of other methods of employment 
        suitability tests that detect deception and could be used in 
        conjunction with traditional background investigations to 
        evaluate potential employees for suitability; and
            ``(2) a recommendation regarding whether a test referred to 
        in paragraph (1) should be adopted by U.S. Customs and Border 
        Protection when the polygraph examination requirement is waived 
        pursuant to section 3(b).''.
    (c) Definitions.--The Anti-Border Corruption Act of 2010, as 
amended by subsection (b) of this section, is further amended by adding 
at the end the following new section:

``SEC. 6. DEFINITIONS.

    ``In this Act:
            ``(1) Federal law enforcement officer.--The term `Federal 
        law enforcement officer' means a `law enforcement officer', as 
        defined in section 8331(20) or 8401(17) of title 5, United 
        States Code.
            ``(2) Veteran.--The term `veteran' has the meaning given 
        such term in section 101(2) of title 38, United States Code.
            ``(3) Serious military or civil offense.--The term `serious 
        military or civil offense' means an offense for which--
                    ``(A) a member of the Armed Forces may be 
                discharged or separated from service in the Armed 
                Forces; and
                    ``(B) a punitive discharge is, or would be, 
                authorized for the same or a closely related offense 
                under the Manual for Courts-Martial, as pursuant to 
                Army Regulation 635-200 chapter 14-12.
            ``(4) Tier 4; tier 5.--The terms `Tier 4' and `Tier 5' with 
        respect to background investigations have the meaning given 
        such terms under the 2012 Federal Investigative Standards.''.
                                                       Calendar No. 179

115th CONGRESS

  1st Session

                                 S. 595

                          [Report No. 115-133]

_______________________________________________________________________

                                 A BILL

     To provide U.S. Customs and Border Protection with additional 
   flexibility to expedite the hiring process for applicants for law 
             enforcement positions, and for other purposes.

_______________________________________________________________________

                             July 24, 2017

                       Reported with an amendment