[Senate Report 116-99]
[From the U.S. Government Publishing Office]
Calendar No. 202
116th Congress } { Report
SENATE
1st Session } { 116-99
_______________________________________________________________________
ANTI-BORDER CORRUPTION
IMPROVEMENT ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 731
TO AMEND THE ANTI-BORDER CORRUPTION ACT OF 2010 TO
AUTHORIZE CERTAIN POLYGRAPH WAIVER AUTHORITY, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
September 10, 2019.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
89-010 WASHINGTON : 2019
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio GARY C. PETERS, Michigan
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah KAMALA D. HARRIS, California
RICK SCOTT, Florida KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri
Gabrielle D'Adamo Singer, Staff Director
Joseph C. Folio III, Chief Counsel
Michelle D. Woods, Co-Director and Chief Policy Advisor for Homeland
Security
Brian P. Kennedy, Professional Staff Member
David M. Weinberg, Minority Staff Director
Zachary I. Schram, Minority Chief Counsel
Samuel Rodarte Jr., Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 202
116th Congress } { Report
SENATE
1st Session } { 116-99
======================================================================
ANTI-BORDER CORRUPTION IMPROVEMENT ACT
_______
September 10, 2019.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 731]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 731) to amend the
Anti-Border Corruption Act of 2010 to authorize certain
polygraph waiver authority, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................5
V. Evaluation of Regulatory Impact..................................6
VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law Made by the Bill, as Reported............7
I. Purpose and Summary
The purpose of S. 731, the Anti-Border Corruption
Improvement Act, is to ensure the U.S. Customs and Border
Protection (CBP) is able to exercise limited flexibilities in
its hiring process to offset staff shortages amongst its cadre
of law enforcement officer positions. S. 731 expands the CBP
Commissioner's authority to waive the polygraph examination
requirements for three categories of individuals seeking to
hold law enforcement positions with CBP. Specifically, this
bill allows CBP to waive the polygraph examination requirement
for current law enforcement officers, who meet certain
requirements and are employed full-time by Federal, state and
local law enforcement agencies, and active members or veterans
of the Armed Forces. The CBP Commissioner may use the polygraph
examination to resolve any questions or concerns that arise as
part of the background investigation for an applicant eligible
for or current employee receiving a waiver to determine whether
the individual meets the suitably requirements for employment
with CBP. CBP is required to provide a report to Congress on
the use of this polygraph waiver within one year after the
bill's enactment. The authorities provided in this bill will
sunset five years after enactment.\1\
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\1\On July 24, 2017, the Committee approved S. 595, Ant-Border
Corruption Reauthorization Act. That bill is similar to S. 731.
Accordingly, this committee report is in part a reproduction of
Chairman Johnson's committee report for S. 595, S. Rep. No. 115-133.
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II. Background and the Need for Legislation
With responsibilities that include facilitating legitimate
trade and travel to securing our nation's borders, CBP is one
of the nation's largest and most important law enforcement
organizations.\2\ CBP's workforce includes more than 60,000 law
enforcement officers and mission support staff.\3\ Every day,
the women and men of CBP screen over one million international
travelers, interdict thousands of counterfeit goods, arrest
thousands of immigration law violators, seize thousands of
pounds of illegal drugs, prevent agricultural pests from
damaging U.S. crops, disrupt terrorist and criminal travel, and
provide emergency services at and between ports of entry.\4\
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\2\About CBP, https://www.cbp.gov/about (last visited July 30,
2019).
\3\Id.
\4\U.S. Customs & Border Protection, Performance and Accountability
Report Fiscal Year 2016 8 (2016), https://www.cbp.gov/sites/default/
files/assets/documents/2017-Mar/FY-2016-CBP-PAR-508C.pdf.
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CBP is struggling to fill thousands of law enforcement
vacancies. As of July 2019, CBP is approximately 4,500 below
its congressionally-approved staffing numbers and requirements
in its workforce staffing models across its law enforcement
components, including Air and Marine Operations, Border Patrol,
and Office of Field Operations (OFO).\5\ These staffing
shortages have adverse effects on CBP's ability to efficiently
and effectively carry out its mission, and contribute to low
workforce morale. At a March 2017 hearing before the Committee,
OFO and Border Patrol union representatives testified about the
impacts of staffing shortages on the components' workforce
morale and ability to fulfill key responsibilities.\6\ Anthony
M. Reardon, National Treasury Employees Union President,
asserted that OFO officers are required to frequently work
overtime and are routinely sent on involuntary Temporary Duty
(TDY) assignments.\7\ This practice has lowered the morale of
officers as they are away from their families for long periods
of time.\8\
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\5\Email from Dep't of Homeland Sec. to Comm. Staff (July 23, 2019)
(on file with Committee staff).
\6\Perspectives from the DHS Frontline: Evaluating Staffing
Resources and Requirements: Hearing on S. 595 Before the S. Comm. on
Homeland Sec. & Governmental Affairs, 115th Cong. (2017) (statement of
Anthony M. Reardon, National President, National Treasury Employees
Union).
\7\Id.
\8\Id.
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Recent surges in apprehensions on the southern border and
increases in traveler volume have also placed strain on CBP. In
January 2017, the Trump Administration issued Executive Order
13767 entitled, Border Security and Immigration Enforcement
Improvements (hereinafter Executive Order 13767), to address,
among other things, the surge in illegal immigration and ensure
the Border Patrol has the ability to respond with operational
efficiency to the changing nature of threats.\9\ Specifically,
Executive Order 13767 directs the Commissioner of CBP to ``take
all appropriate actions to hire 5,000 additional [Border Patrol
Agents], and to ensure that such agents enter duty and are
assigned to duty stations as soon as practicable.''\10\
However, due in part to its polygraph examination process, CBP,
and most notably the Border Patrol, faces challenges hiring law
enforcement personnel.
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\9\Exec. Order. No. 13768, 82 FR 8799 (2017).
\10\U.S. Customs and Border Protection, Dep't of Homeland Sec.,
Budget Overview 24 (2019), https://www.dhs.gov/sites/default/files/
publications/U.S.%20Customs%20and%20Border%20
Protection.pdf.
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According to the former CBP Commissioner, Gil Kerlikowske,
the administration of the polygraph requirement mandated by
Congress in 2010 to mitigate corruption and abuse allegations
has impacted CBP's ability to hire new officers for all three
of its components.\11\ In July 2017, the Department of Homeland
Security's Office of Inspector General (DHS OIG) found that
CBP's hiring requirements, including the polygraph examination,
``make recruitment and hiring inherently challenging and
complicated,''\12\ though these requirements are ``important to
securing well-qualified individuals.''\13\ Additionally, the
DHS OIG suggested that CBP collaborate with the Department of
Defense to ``expedite the hiring of veterans by waiving the
pre-employment polygraph examination for those who left
military services with security clearances in good standing''
in order to meet the hiring goals outlined in Executive Order
13767.\14\
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\11\Associated Press, Two out of three Border Patrol job applicants
fail polygraph test, making hiring difficult, Los Angeles Times (Jan.
13, 2017), http://www.latimes.com/local/lanow/la-me-border-patrol-lies-
20170113-story.html.
\12\Office of Inspector Gen., U.S. Dep't of Homeland Sec., OIG-17-
98-SR, Special Report: Challenges Facing DHS in Its Attempt to Hire
15,000 Border Patrol Agents and Immigration Officers 13 (2017), https:/
/www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-98-SR-
Jul17.pdf.
\13\Id.
\14\Id.
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Approximately 65 percent of all applicants fail the CBP
polygraph examination.\15\ During a February 2017 hearing
before the Committee, then Acting Commissioner of CBP, Kevin
McAleenan, described the agency's polygraph examination as
``both a significant deterrent and point of failure for CBP law
enforcement applicants.''\16\ In comparison, a former CBP
internal affairs official stated that the Federal Bureau of
Investigation and U.S. Secret Service have had polygraph
failure rates of less than 35 percent.\17\ Additionally, data
provided to the Associated Press shows that the Drug
Enforcement Administration had a failure rate of 36 percent for
two consecutive years beginning in 2015.\18\ According to the
American Polygraph Association, failure rates of roughly 30
percent are normal for law enforcement hiring.\19\
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\15\Perspectives from the DHS Frontline: Evaluating Staffing
Resources and Requirements, supra note 5, at 19.
\16\Memorandum from Kevin K. McAleenan, Acting Commissioner, U.S.
Customs and Border Protection, to Deputy Sec'y of U.S. Customs and
Border Patrol (Feb. 17, 2017), https://www.aila.org/infonet/cbp-memo-
executive-order-hiring-surge-plan.
\17\Associated Press, Two out of three Border Patrol job applicants
fail polygraph test, making hiring difficult, L.A. Times (Jan. 13,
2017), https://www.latimes.com/local/lanow/la-me-border-patrol-lies-
20170113-story.html.
\18\Id.
\19\Id.
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Commenting on the agency's challenges with the
administration of its polygraph examination, former CBP
Commissioner Kerlikowske said, ``the failure rate is too high,
but that is largely because the agency has not attracted the
applicants it wants. . . .''\20\ During a hearing before the
Subcommittee on Border and Maritime Security, House Committee
on Homeland Security, then-Chairwoman Martha McSally commented
on the need to take legislative action to resolve some of CBP's
hiring challenges by waiving polygraph requirements for current
state and local law enforcement officers who have already
passed a polygraph examination, Federal law enforcement
officers who have already passed a stringent background
investigation, and veterans with at least three consecutive
years in the military who have held a security clearance and
passed a background check:\21\
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\20\Id.
\21\On the Line: Border Security from an Agent and Officer
Perspective: Hearing before the Subcomm. on Border and Maritime Sec. of
the H. Comm. on Homeland Sec., 115th Cong. 3-4 (2018) (statement of
Rep. Martha McSally, Chairwoman, H. Comm. on Homeland Sec.).
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These small changes will provide CBP with immediate
relief so that they are able to quickly, yet
judiciously, hire officers and agents from a pool of
qualified applicants that already maintain the public's
trust and put their lives on the line for our security
and safety on a daily basis.\22\
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\22\Id. at 4.
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S. 731 amends the Anti-Border Corruption Act of 2010 and
authorizes the expansion of authority of the CBP Commissioner
to waive the polygraph requirement for applicants that are
current law enforcement officers. The bill outlines guidelines
for the execution of waivers for law enforcement officers if
they have three years of continuous service, are in good
standing, and completed a background investigation at the level
required to be a CBP officer. For active military or veterans,
they must have served for three years, hold or have held a
clearance, and undergone a background investigation to the
level required to be a CBP officer.
III. Legislative History
Senator McSally (R-AZ) introduced S. 731, the Anti-Border
Corruption Improvement Act, on March 7, 2019. The bill was
referred to the Committee on Homeland Security and Governmental
Affairs. Senator Braun (R-IN) joined as a cosponsor on March
13, 2019.
The Committee considered S. 731 at a business meeting on
June 19, 2019. During the business meeting, Chairman Ron
Johnson filed an amendment to clarify the necessary
qualifications of a member or veteran of the Armed Forces who
seeks a polygraph examination waiver. Chairman Johnson's
amendment was adopted by voice vote with Senators Johnson,
Portman, Paul, Lankford, Romney, Scott, Enzi, Hawley, Peters,
Hassan, Sinema, and Rosen present.
Senator Maggie Hassan offered an amendment to only allow
waivers for those members of the Armed Forces, veterans, or
Federal law enforcement applicants who hold a Top Secret or TS-
SCI clearance and for state and local law enforcement
applicants that have been polygraphed within the last three
years, rather than ten years. The amendment also required the
Commissioner of CBP to certify to Congress for each applicant
that the applicant is not a threat to national security or
public safety. Senator Hassan's amendment was not adopted by a
roll call vote of 7-7. Senators Romney, Peters, Hassan, Sinema,
and Rosen voted ``yea''. Senators Carper and Harris voted
``yea'' by proxy. Senators Johnson, Portman, Paul, Lankford,
Scott, Enzi, and Hawley voted ``nay''.
The bill, as amended by the Johnson amendment, was ordered
reported favorably by voice vote. Senators present for the vote
were Johnson, Portman, Paul, Lankford, Romney, Scott, Enzi,
Hawley, Peters, Hassan, Sinema, and Rosen. Senator Hassan asked
to be recorded ``no'' for the record.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section provides the bill's short title, the ``Anti-
Border Corruption Improvement Act.''
Section 2. Hiring flexibility
This section amends the Anti-Border Corruption Act of 2010
to provide the Commissioner of CBP the discretion to waive the
pre-employment polygraph examination for any current full-time
state or local law enforcement officer who has served
continuously for at least three years, is currently in good
standing, and has, within the last ten years, completed a
polygraph. The polygraph waiver may also apply to a Federal law
enforcement officer who has served continuously for at least
three years, is currently in good standing, and holds a current
background investigation level required to work with CBP. As
for members of the military, including reserve branches and
veterans, the Commissioner of CBP may waive the polygraph
requirement if they have served for at least three years, are
in good standing, eligible for or have received an honorable
discharge, have held a clearance of Secret, Top Secret, or Top
Secret/Sensitive Compartmented Information, have not received a
waiver to obtain such a clearance, and holds a current
background investigations required by CBP.
The waiver authority provided in this bill will sunset five
years after enactment.
Section 3. Supplemental commissioner authority; reporting; definitions
This section eliminates section 4 of the Anti-Border
Corruption Act of 2010 and inserts a new section 4, 5, and 6 as
follows:
New section 4 states that the applicant who receives the
waiver may not be exempt from other requirements in the CBP
hiring process. Applicants receiving a waiver may also be
subject to a further background investigation. Additionally,
the bill would authorize Commissioner of CBP to administer a
polygraph examination for eligible applicants and current
employees who receive a waiver if it is determined that a
polygraph examination is necessary to make a final
determination for suitability for employment or continuous
employment with CBP.
New section 5 states that each year for four years
following the enactment of this bill, CBP is required to
provide an annual report to Congress on the use of the waiver
authorities provided in this bill. The annual report must
include: the number of waivers requested, granted, and denied;
justification for waiver denials; the results of each
application for employment; number of times a polygraph was
used when a background check determined one was necessary; the
result of such polygraph exams; and the results of each
application for employment from those that the supplemental
polygraph is applied to.
New section 6 defines the terms ``law enforcement
officer'', ``serious military or civil offense'', and
``veteran''.
Section 4. Technical and conforming amendment
This section strikes out ``section 3(1) of'' from Section
411(c)(15) in the Homeland Security Act of 2002 where the job
of the Commissioner of CBP is to now conduct polygraph exams,
allowing flexibility for the waiver process.
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 and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill 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.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 23, 2019.
Hon. Ron Johnson,
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. 731, the Anti-Border
Corruption Improvement Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
Current law requires Customs and Border Protection (CBP) to
administer polygraph examinations to nearly all applicants for
law enforcement positions. S. 731 would broaden the criteria
for waiving that requirement for certain applicants. Using
information from CBP, CBO estimates that implementing the bill
would have no significant effect on the agency's spending to
vet applicants for law enforcement positions because the
expanded exemption would probably not affect very many people.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 6--DOMESTIC SECURITY
* * * * * * *
CHAPTER 1--HOMELAND SECURITY ORGANIZATION
* * * * * * *
Subchapter IV--Border, Maritime, and Transportation Security
* * * * * * *
Part B--U.S. Customs and Border Protection
* * * * * * *
SEC. 221. REQUIREMENTS WITH RESPECT TO ADMINISTERING POLYGRAPH
EXAMINATIONS
(a) * * *
[(b)]
(b) Waiver Authority.--The Commissioner of U.S. Customs and
Border Protection may waive the application of subsection
(a)(1)--
(1) with respect to any current, full-time, law
enforcement officer employed by a State or local law
enforcement agency who--
(A) has served as a law enforcement officer
for at least 3 years with no break in service;
(B) is authorized by law to engage in, or
supervise, the prevention, detection,
investigation, prosecution, or 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, during the most recent 10-year
period, successfully completed a polygraph
examination that satisfies requirements
established by the Secretary of Homeland
Security, in consultation with the Director of
National Intelligence, as a condition of
employment with such officer's current law
enforcement agency;
(2) with respect to any current, full-time, law
enforcement officer employed by a Federal law
enforcement agency who--
(A) has served as a law enforcement officer
for at least 3 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 background investigation
to the level required for service as a law
enforcement officer with U.S. Customs and
Border Protection; and
(3) with respect to any individual who is a member of
the Armed Forces (or a reserve component thereof) or a
veteran who--
(A) has served in the Armed Forces for at
least 3 years;
(B) holds, or has held during the most recent
5-year period, a Secret, Top Secret, or Top
Secret/Sensitive Compartmented Information
clearance;
(C) holds a current, in-scope background
investigation to the level required for
services as a law enforcement officer with U.S.
Customs and Border Protection;
(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).
* * * * * * *
ANTI-BORDER CORRUPTION ACT OF 2010
[SEC. 4. PROGRESS REPORT
Not later than 180 days after the date of the enactment of
this Act, and every 180 days thereafter through the date that
is 2 years after such date of enactment, the Secretary of
Homeland Security shall submit to the Committee on Homeland
Security and Governmental Affairs of the Senate and the
Committee on Homeland Security of the House of Representatives
a report on the progress made by U.S. Customs and Border
Protection toward complying with section 3.]
SEC. 4. SUPPLEMENTAL COMMISSIONER AUTHORITY
(a) Nonexemption.--An individual who receives a waiver
under section 3(b) shall not be 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 section 3(b) and holds a current background
investigation may be subject to further background
investigation to the level required for service as a law
enforcement officer with U.S. Customs and Border Protection.
(c) Continuous Evaluation.--Any individual who receives a
waiver under section 3(b) shall not be exempt from any
requirement relating to continuous evaluation established by
the Commissioner of U.S. Customs and Border Protection.
(d) 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 section 3(b) if information is discovered before 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.
SEC. 5. REPORTING
Not later than 1 year after the date of the enactment of
the Anti-Border Corruption Improvement Act and annually
thereafter for the following 4 years, the Commissioner of U.S.
Customs and Border Protection shall submit a report to the
Committee on Homeland Security and Governmental Affairs of the
Senate and the Committee on Homeland Security of the House of
Representatives that identifies--
(1)
(A) the number of waivers requested, granted,
or denied, disaggregated with respect to each
of paragraphs (1), (2), and (3) of section
3(b);
(B) the reasons for any denial referred to in
subparagraph (A); and
(C) the final outcome of the application for
employment at issue; and
(2)
(A) the number of instances a polygraph
examination was administered under the
conditions described in section 4(d);
(B) the result of each examination referred
to in subparagraph (A); and
(C) the final outcome of the application for
employment at issue.
SEC. 6. DEFINITIONS
In this Act:
(1) Law Enforcement Officer.--The term ``law
enforcement officer'' means any law enforcement officer
described in section 8331(20) or 8401(17) of title 5,
United States Code.
(2) 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,
pursuant to chapter 14-12 of Army Regulation
635-200.
(3) Veteran.--The term ``veteran'' has the meaning
given such term in section 101(2) of title 38, United
States Code.
* * * * * * *
HOMELAND SECURITY ACT OF 2002
* * * * * * *
SEC. 411. ESTABLISHMENT OF U.S. CUSTOMS AND BORDER PROTECTION;
COMMISSIONER, DEPUTY COMMISSIONER, AND OPERATIONAL
OFFICES
(a) * * *
(b) * * *
(c) * * *
(1) * * *
* * * * * * *
(15) conduct polygraph examinations in accordance
with [section 3(1) of] the Anti-Border Corruption Act
of 2010 (Public Law 111-376; 124 Stat. 4105);
* * * * * * *
[all]