[Senate Report 111-338]
[From the U.S. Government Publishing Office]


111th Congress 
 2d Session                      SENATE                          Report
                                                                111-338
_______________________________________________________________________

                                     


 
                   ANTI-BORDER CORRUPTION ACT OF 2010

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 3243

 TO REQUIRE U.S. CUSTOMS AND BORDER PROTECTION TO ADMINISTER POLYGRAPH 
EXAMINATIONS TO ALL APPLICANTS FOR LAW ENFORCEMENT POSITIONS WITH U.S. 
   CUSTOMS AND BORDER PROTECTION, TO REQUIRE U.S. CUSTOMS AND BORDER 
  PROTECTION TO COMPLETE ALL PERIODIC BACKGROUND REINVESTIGATIONS OF 
       CERTAIN LAW ENFORCEMENT PERSONNEL, AND FOR OTHER PURPOSES




               September 29, 2010.--Ordered to be printed
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri           JOHN ENSIGN, Nevada
JON TESTER, Montana                  LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware

                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
               Blas Nunez-Neto, Professional Staff Member
                  Nicole M. Martinez, Legislative Aide
Donny R. Williams, Staff Director, Ad Hoc Subcommittee on State, Local, 
            and Private Sector Preparedness and Integration
Jason R. Bockenstedt, Professional Staff Member, Ad Hoc Subcommittee on 
     State, Local, and Private Sector Preparedness and Integration
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
        Amanda Wood, Minority Director for Governmental Affairs
                Matthew L. Hanna, Minority CBP Detailee
 Ryan M. Tully, Minority Staff Director, Ad Hoc Subcommittee on State, 
         Local, and Private Sector Preparedness and Integration
                  Trina Driessnack Tyrer, Chief Clerk
                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for Legislation..............................1
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................3
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................4
VII. Changes to Existing Law Made by the Bill, as Reported............6
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-338

======================================================================




                   ANTI-BORDER CORRUPTION ACT OF 2010

                                _______
                                

               September 29, 2010.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 3243]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 3243) to require 
U.S. Customs and Border Protection to administer polygraph 
examinations to all applicants for law enforcement positions 
with U.S. Customs and Border Protection, to require U.S. 
Customs and Border Protection to complete all periodic 
background reinvestigations of certain law enforcement 
personnel, and for other purposes, having considered the same, 
reports favorably thereon with an amendment and recommends that 
the bill do pass.

                         I. PURPOSE AND SUMMARY

    The purpose of S. 3243 is to strengthen the ability of U.S. 
Custom and Border Protection (CBP) to evaluate the suitability 
for employment of applicants and current law enforcement 
employees. It would do so by requiring CBP to submit all 
applicants to a polygraph examination prior to hiring them, and 
by mandating that CBP clear its existing backlog of periodic 
reinvestigations of current employees.

                II. BACKGROUND AND NEED FOR LEGISLATION

    According to the Department of Justice, Mexican drug 
trafficking organizations (DTOs) constitute the greatest 
organized crime threat to the United States.\1\ Mexican DTOs 
supply illicit narcotics to 230 U.S. cities, and they utilize a 
broad range of tactics to ensure the successful transport of 
their narcotics. These tactics include bribery and intimidation 
of U.S. law enforcement personnel, particularly those charged 
with securing the border and interdicting contraband. As the 
United States has increased enforcement activities along the 
U.S. side of the border, the DTOs have increasingly begun to 
target U.S. law enforcement personnel with bribes and other 
inducements in order to facilitate moving drug loads across the 
border.
---------------------------------------------------------------------------
    \1\``National Drug Threat Assessment 2009,'' National Drug 
Intelligence Center, Department of Justice, December 2008, pp III.
---------------------------------------------------------------------------
    On March 11, 2010, the Subcommittee on State, Local, and 
Private Sector Preparedness and Integration (SLPSPI) held a 
hearing to examine the threat posed by the attempted corruption 
of CBP law enforcement personnel by the DTOs. CBP testified 
that the number of corruption investigations within the agency 
has been increasing, and that the DTOs have been attempting to 
infiltrate the agency by sending drug traffickers to take the 
entrance examination.\2\ CBP believes that the most effective 
way to screen new applicants is to administer a polygraph 
examination. According to CBP, less than one percent of 
applicants who are cleared by a polygraph examination 
subsequently fail the required single scope background 
investigation (SSBI), while roughly 22% of applicants who are 
not subjected to polygraph investigations fail the SSBI. 
Because SSBIs cost an average of $3,200, CBP believes that 
expanding the use of polygraph examinations would cut down on 
failed investigations and create a more streamlined and cost-
effective process for bringing new applicants on board. 
Additionally, an internal CBP investigation revealed that 
candidates who did not take a polygraph examination prior to 
employment with CBP were more than twice as likely to have a 
subsequent disciplinary record than those who were administered 
a polygraph examination.\3\
---------------------------------------------------------------------------
    \2\Testimony of James F. Tomsheck, Assistant Commissioner, Office 
of Internal Affairs, Customs and Border Protection, ``New Border War: 
Corruption of U.S. Officials By Drug Cartels'', Hearing of the Senate 
Homeland Security and Governmental Affairs Subcommittee on State, 
Local, and Private Sector Preparedness and Integration; March 11, 2010.
    \3\From telephone and email correspondence between Committee and 
Subcommittee staff and Customs and Border Protection Office of 
Congressional Affairs, September 13-21, 2010.
---------------------------------------------------------------------------
    Despite the benefits of polygraph examinations, the hearing 
revealed, fewer than fifteen percent of applicants for CBP law 
enforcement positions receive a polygraph examination during 
the hiring process. CBP has stated that they want to administer 
the exam to all applicants, but they have not been given the 
resources necessary to accomplish this. Of those applicants who 
do take a polygraph test, CBP finds 60 percent of them 
ineligible for employment,\4\ primarily due to prior drug use 
or a criminal history that the applicant had not previously 
disclosed.\5\
---------------------------------------------------------------------------
    \4\Testimony of James F. Tomsheck, Assistant Commissioner, Office 
of Internal Affairs, Customs and Border Protection, ``New Border War: 
Corruption of U.S. Officials By Drug Cartels'', Hearing of the Senate 
Homeland Security and Governmental Affairs Subcommittee on State, 
Local, and Private Sector Preparedness and Integration; March 11, 2010.
    \5\From Committee and Subcommittee staff discussions with Mr. 
Tomsheck and Customs and Border Protection Office of Congressional 
Affairs, July 15, 2010.
---------------------------------------------------------------------------
    The hearing also revealed that CBP has experienced a spike 
in internal corruption cases in recent years. According to CBP, 
this spike is largely due to the agency's swift growth. The 
Border Patrol, for example, has seen its number of agents 
double, from 10,045 in fiscal year (FY) 2002 to 20,119 in FY 
2009.\6\ There have been 129 arrests of CBP officers and agents 
since 2003, and 576 allegations of corruption in 2009 alone. 
Between FY2005 and FY2010, cases of employee delinquency have 
increased by 42%.\7\ Officials at the hearing also said that 
CBP employees are required to undergo a periodic 
reinvestigation every five years under DHS' authority to 
reinvestigate law enforcement officers periodically.\8\ 
However, due to the hiring surge for the Border Patrol, which 
required CBP to undertake an unprecedented number of SSBIs, CBP 
Internal Affairs has been unable to keep up with the 
reinvestigations it needs to fulfill this policy. The agency, 
which currently has approximately 42,000 law enforcement 
personnel, has a backlog of 10,000 reinvestigations. That 
backlog is expected to rise to 19,000--45 percent of CBP's 
total law enforcement positions--by year's end.\9\
---------------------------------------------------------------------------
    \6\From telephone and email correspondence between Committee and 
Subcommittee staff and Customs and Border Protection Office of 
Congressional Affairs, July 15, September 13-21, 2010.
    \7\Employee delinquency cases include non-mission compromising 
misconduct, mission-related misconduct, corruption, and mission-
compromising corruption. From email correspondence between Committee 
staff and Customs and Border Protection Office of Congressional 
Affairs, September 23, 2010.
    \8\See 5 C.F.R. 731 and 732. Additionally, OPM is currently 
revising 5 CFR 731 (per Executive Order 13488) to require a periodic 
reinvestigation every five years for all high risk public trust 
positions.
    \9\From telephone and email correspondence between Committee and 
Subcommittee staff and Customs and Border Protection Office of 
Congressional Affairs, July 15, September 13-21, 2010.
---------------------------------------------------------------------------
    To provide a better and more efficient hiring process, S. 
3243 would require CBP to give pre-employment polygraphs to all 
new hires within two years of the bill's enactment. It would 
also address the reinvestigation backlog by requiring CBP to 
initiate all pending periodic background reinvestigations 
within 180 days of enactment. The bill's original text required 
CBP to eliminate the periodic reinvestigation backlog within 
six months. However, in response to concerns expressed by DHS 
regarding the inadequacy of resources to fulfill this 
requirement, the Committee adopted an amendment to modify the 
language to require that CBP initiate, rather than complete, 
periodic reinvestigations within six months.

                        III. LEGISLATIVE HISTORY

    S. 3243 was introduced on April 21, 2010, by Senator Mark 
Pryor. The bill was read twice and referred to the Committee on 
Homeland Security and Governmental Affairs. On July 28, 2010, 
the Committee considered S. 3243. Senator Pryor offered an 
amendment that adjusted the mandate that CBP initiate or 
complete all pending periodic background reinvestigations for 
CBP personnel within 180 days of enactment to require that CBP 
merely initiate the pending investigations. The amendment was 
adopted by voice vote. The Committee ordered the bill as 
amended reported favorably by voice vote. Members present for 
the vote on the Pryor amendment were Senators Lieberman, Levin, 
Akaka, Carper, Pryor, Landrieu, McCaskill, Tester, Collins, and 
McCain. Senators present for the vote on the bill as amended 
were Senators Lieberman, Levin, Akaka, Carper, Pryor, Landrieu, 
McCaskill, Tester, Kaufman, Collins, and McCain.

                    IV. SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    This section designates the short title of the bill as the 
``Anti-Border Corruption Act of 2010.''

Section 2. Findings

    This section articulates the findings that CBP has not 
adhered to its policy of mandatory pre-employment and periodic 
background investigations due to a lack of resources, and that 
these investigations are crucial in light of recent increases 
in corruption investigations of CBP personnel.

Section 3. Requirements with respect to administering polygraph 
        examinations to law enforcement personnel of U.S. Customs and 
        Border Protection

    This section mandates that within 2 years of enactment, CBP 
subject all applicants for law enforcement positions in CBP to 
polygraph examinations prior to hiring them. It also requires 
that CBP initiate all pending periodic background 
reinvestigations within 180 days of enactment.

Section 4. Progress report

    This section requires the Secretary of Homeland Security to 
report to Congress every 180 days for the two years following 
enactment of the bill on the progress made by CBP in complying 
with the mandates in section 3 of the bill.

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill. The 
Congressional Budget Office states that the bill contains no 
intergovernmental or private sector mandates as defined in the 
Unfunded Mandate Reform Act and would not effect state, local, 
and tribal governments. The enactment of this legislation will 
not have significant regulatory impact.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                                September 28, 2010.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3243, the Anti-
Border Corruption Act of 2010.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 3243--Anti-Border Corruption Act of 2010

    Summary: S. 3243 would require U.S. Customs and Border 
Protection (CBP), within two years of the bill's enactment, to 
administer polygraph examinations to all applicants for law 
enforcement positions before those individuals are hired. The 
bill also would direct CBP, within 180 days of enactment, to 
initiate background reinvestigations for all law enforcement 
personnel who are currently scheduled to undergo such reviews.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing the bill would cost $19 million 
over the 2011-2015 period. Enacting the bill would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    S. 3243 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 3243 is shown in the following table. 
The costs of this legislation fall within budget function 750 
(administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year, in millions of dollars--
                                                              --------------------------------------------------
                                                                2011    2012    2013    2014    2015   2011-2015
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level................................      10       0       3       3       3        19
Estimated Outlays............................................      10       0       3       3       3        19
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For the purposes of this estimate, CBO 
assumes that S. 3243 will be enacted in 2010. CBO assumes that 
the estimated amounts will be appropriated near the start of 
each fiscal year and that outlays will follow the historical 
rate of spending for those activities. Under the bill, CBP 
would administer polygraph examinations to all applicants for 
law enforcement positions before those individuals are hired 
starting in fiscal year 2013.

Costs for background reinvestigations

    CBP law enforcement personnel are required to undergo 
background reinvestigations every five years. Each year, 
reinvestigations are scheduled for the cohort of law 
enforcement officers hired five years before. Those 
investigations have not been conducted as scheduled, however, 
and a backlog has developed.
    CBP expects to have a backlog of about 3,000 
reinvestigations at the beginning of fiscal year 2011. In 
addition, about 4,800 reinvestigations will be required during 
the first 180 days of fiscal year 2011. To meet the bill's 
requirements, CBP would have to initiate about 7,800 
reinvestigations within 180 days of the bill's enactment.
    Under current law, CBP anticipates initiating only about 
4,800 reviews within that time period. Thus, we estimate that 
implementing S. 3243 would require CBP to initiate an 
additional 3,000 reinvestigations in 2011. According to CBP, 
the cost of each reinvestigation is about $3,200; CBO estimates 
that implementing this provision would cost about $10 million 
in fiscal year 2011, assuming appropriation of the necessary 
funds.

Costs for polygraph examinations

    Under current law, CBP does not administer polygraph 
examinations to all applicants for law enforcement positions; 
in 2011, the agency expects to administer polygraphs to about 
40 percent of the individuals hired for those positions. CBP 
plans to hire about 2,000 law enforcement officers in each of 
fiscal years 2013 through 2015. Thus, CBO expects that about 
800 polygraphs will be administered in each of those years 
under current practice. S. 3243 would require CBP to administer 
polygraph examinations to all applicants for law enforcement 
positions before those individuals are hired. Because not all 
applicants would be hired, CBP anticipates that it would meet 
the bill's requirement by administering polygraphs to about 
4,000 individuals annually over the 2013-2015 period. Thus, CBO 
expects that implementing the bill would require the agency to 
administer polygraphs to an additional 3,200 persons annually 
beginning in 2013.
    Based on information from CBP, CBO estimates that each 
polygraph examination would cost about $850 in 2013. Thus, 
implementing this provision would cost nearly $3 million 
annually over the 2013-2015 period, assuming appropriation of 
the necessary funds.
    Pay-as-you-go considerations: None.
    Intergovernmental and private-sector impact: S. 3243 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate prepared by: Federal Costs: Mark Grabowicz; Impact 
on State, Local, and Tribal Governments: Melissa Merrell; 
Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

       VII. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED

    S. 3243 does not make any changes to existing law.

                                  
