II 

116TH CONGRESS 

1ST SESSION S. 731 

To amend the Anti-Border Corruption Act of 2010 to authorize certain 

polygraph waiver authority, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 7, 2019 

Ms. MCSALLY introduced the following bill; which was read twice and referred 

to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To amend the Anti-Border Corruption Act of 2010 to authorize certain polygraph waiver authority, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Anti-Border Corrup5 tion Improvement Act’’. 

6 SEC. 2. HIRING FLEXIBILITY. 

7 (a) IN GENERAL.—Section 3(b) of the Anti-Border 

8 Corruption Act of 2010 (6 U.S.C. 221) is amended to read 

9 as follows: 


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1 ‘‘(b) WAIVER AUTHORITY.—The Commissioner of 

2 U.S. Customs and Border Protection may waive the appli3 cation of subsection (a)(1)— 

4 ‘‘(1) with respect to any current, full-time, law 

5 enforcement officer employed by a State or local law 

6 enforcement agency who— 

7 ‘‘(A) has served as a law enforcement offi8 cer for at least 3 years with no break in service; 

9 ‘‘(B) is authorized by law to engage in, or 

10 supervise, the prevention, detection, investiga11 tion, prosecution, or incarceration of any person 

12 for any violation of law, and has statutory pow13 ers for arrest or apprehension; 

14 ‘‘(C) is not currently under investigation, 

15 has not been found to have engaged in criminal 

16 activity or serious misconduct, has not resigned 

17 from a law enforcement officer position under 

18 investigation or in lieu of termination, and has 

19 not been dismissed from a law enforcement offi20 cer position; and 

21 ‘‘(D) has, during the most recent 10-year 

22 period, successfully completed a polygraph ex23 amination that satisfies requirements estab24 lished by the Secretary of Homeland Security, 

25 in consultation with the Director of National 


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1 Intelligence, as a condition of employment with 

2 such officer’s current law enforcement agency; 

3 ‘‘(2) with respect to any current, full-time, law 

4 enforcement officer employed by a Federal law en5 forcement agency who— 

6 ‘‘(A) has served as a law enforcement offi7 cer for at least 3 years with no break in service; 

8 ‘‘(B) has authority to make arrests, con9 duct investigations, conduct searches, make sei10 zures, carry firearms, and serve orders, war11 rants, and other processes; 

12 ‘‘(C) is not currently under investigation, 

13 has not been found to have engaged in criminal 

14 activity or serious misconduct, has not resigned 

15 from a law enforcement officer position under 

16 investigation or in lieu of termination, and has 

17 not been dismissed from a law enforcement offi18 cer position; and 

19 ‘‘(D) holds a current background investiga20 tion to the level required for service as a law 

21 enforcement officer with U.S. Customs and 

22 Border Protection; and 

23 ‘‘(3) with respect to any individual who is a 

24 member of the Armed Forces (or a reserve compo25 nent thereof) or a veteran who— 


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1 ‘‘(A) has served in the Armed Forces for 

2 at least 3 years; 

3 ‘‘(B) holds, or has held during the most re4 cent 5-year period, a Secret, Top Secret, or Top 

5 Secret/Sensitive Compartmented Information 

6 clearance; 

7 ‘‘(C) holds or has undergone and passed a 

8 background investigation to the level required 

9 for service as a law enforcement officer with 

10 U.S. Customs and Border Protection; 

11 ‘‘(D) received, or is eligible to receive, an 

12 honorable discharge from service in the Armed 

13 Forces and has not engaged in criminal activity 

14 or committed a serious military or civil offense 

15 under the Uniform Code of Military Justice; 

16 and 

17 ‘‘(E) was not granted any waivers to ob18 tain the clearance referred to subparagraph 

19 (B).’’. 

20 (b) TERMINATION OF WAIVER AUTHORITY.—Section 

21 3(b) of the Anti-Border Corruption Act of 2010, as 

22 amended by subsection (a), shall be repealed on the date 

23 that is 5 years after the date of the enactment of this 

24 Act. 


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1 SEC. 3. SUPPLEMENTAL COMMISSIONER AUTHORITY; RE2 PORTING; DEFINITIONS. 

3 (a) SUPPLEMENTAL COMMISSIONER AUTHORITY.— 

4 The Anti-Border Corruption Act of 2010 (Public Law 

5 111–376) is amended by striking section 4 and inserting 

6 the following: 

7 ‘‘SEC. 4. SUPPLEMENTAL COMMISSIONER AUTHORITY. 

8 ‘‘(a) NONEXEMPTION.—An individual who receives a 

9 waiver under section 3(b) shall not be exempt from other 

10 hiring requirements relating to suitability for employment 

11 and eligibility to hold a national security designated posi12 tion, as determined by the Commissioner of U.S. Customs 

13 and Border Protection. 

14 ‘‘(b) BACKGROUND INVESTIGATIONS.—Any indi15 vidual who receives a waiver under section 3(b) and holds 

16 a current background investigation may be subject to fur17 ther background investigation to the level required for 

18 service as a law enforcement officer with U.S. Customs 

19 and Border Protection. 

20 ‘‘(c) CONTINUOUS EVALUATION.—Any individual 

21 who receives a waiver under section 3(b) shall not be ex22 empt from any requirement relating to continuous evalua23 tion established by the Commissioner of U.S. Customs and 

24 Border Protection. 

25 ‘‘(d) ADMINISTRATION OF POLYGRAPH EXAMINA26 TION.—The Commissioner of U.S. Customs and Border 


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1 Protection is authorized to administer a polygraph exam2 ination to an applicant or employee who is eligible for or 

3 receives a waiver under section 3(b) if information is dis4 covered before the completion of a background investiga5 tion that results in a determination that a polygraph ex6 amination is necessary to make a final determination re7 garding suitability for employment or continued employ8 ment. 

9 ‘‘SEC. 5. REPORTING. 

10 ‘‘Not later than 1 year after the date of the enact11 ment of the Anti-Border Corruption Improvement Act and 

12 annually thereafter for the following 4 years, the Commis13 sioner of U.S. Customs and Border Protection shall sub14 mit a report to the Committee on Homeland Security and 

15 Governmental Affairs of the Senate and the Committee 

16 on Homeland Security of the House of Representatives 

17 that identifies— 

18 ‘‘(1)(A) the number of waivers requested, 

19 granted, or denied, disaggregated with respect to 

20 each of paragraphs (1), (2), and (3) of section 3(b); 

21 ‘‘(B) the reasons for any denial referred to in 

22 subparagraph (A); and 

23 ‘‘(C) the final outcome of the application for 

24 employment at issue; and 


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1 ‘‘(2)(A) the number of instances a polygraph 

2 examination was administered under the conditions 

3 described in section 4(d); 

4 ‘‘(B) the result of each examination referred to 

5 in subparagraph (A); and 

6 ‘‘(C) the final outcome of the application for 

7 employment at issue. 

8 ‘‘SEC. 6. DEFINITIONS. 

9 ‘‘In this Act: 

10 ‘‘(1) LAW ENFORCEMENT OFFICER.—The term 

11 ‘law enforcement officer’ means any law enforcement 

12 officer described in section 8331(20) or 8401(17) of 

13 title 5, United States Code. 

14 ‘‘(2) SERIOUS MILITARY OR CIVIL OFFENSE.— 

15 The term ‘serious military or civil offense’ means an 

16 offense for which— 

17 ‘‘(A) a member of the Armed Forces may 

18 be discharged or separated from service in the 

19 Armed Forces; and 

20 ‘‘(B) a punitive discharge is, or would be, 

21 authorized for the same or a closely related of22 fense under the Manual for Courts-Martial, 

23 pursuant to chapter 14–12 of Army Regulation 

24 635–200. 


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1 ‘‘(3) VETERAN.—The term ‘veteran’ has the 

2 meaning given such term in section 101(2) of title 

3 38, United States Code.’’. 

4 SEC. 4. TECHNICAL AND CONFORMING AMENDMENT. 

5 Section 411(c)(15) of the Homeland Security Act of 

6 2002 (6 U.S.C. 211(c)(15)) is amended by striking ‘‘sec7 tion 3(1) of’’. 

Æ 


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