II 

Calendar No. 202 

116TH CONGRESS 

1ST SESSION S. 731 

[Report No. 116–99] 

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 (for herself and Mr. BRAUN) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

SEPTEMBER 10, 2019 

Reported by Mr. JOHNSON, with an amendment 

[Omit the part struck through and insert the part printed in italic] 

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’’. 


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1 SEC. 2. HIRING FLEXIBILITY. 

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

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

4 as follows: 

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

6 U.S. Customs and Border Protection may waive the appli7 cation of subsection (a)(1)— 

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

9 enforcement officer employed by a State or local law 

10 enforcement agency who— 

11 ‘‘(A) has served as a law enforcement offi12 cer for at least 3 years with no break in service; 

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

14 supervise, the prevention, detection, investiga15 tion, prosecution, or incarceration of any person 

16 for any violation of law, and has statutory pow17 ers for arrest or apprehension; 

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

19 has not been found to have engaged in criminal 

20 activity or serious misconduct, has not resigned 

21 from a law enforcement officer position under 

22 investigation or in lieu of termination, and has 

23 not been dismissed from a law enforcement offi24 cer position; and 

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

26 period, successfully completed a polygraph exVerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731

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1 amination that satisfies requirements estab2 lished by the Secretary of Homeland Security, 

3 in consultation with the Director of National 

4 Intelligence, as a condition of employment with 

5 such officer’s current law enforcement agency; 

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

7 enforcement officer employed by a Federal law en8 forcement agency who— 

9 ‘‘(A) has served as a law enforcement offi10 cer for at least 3 years with no break in service; 

11 ‘‘(B) has authority to make arrests, con12 duct investigations, conduct searches, make sei13 zures, carry firearms, and serve orders, war14 rants, and other processes; 

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

16 has not been found to have engaged in criminal 

17 activity or serious misconduct, has not resigned 

18 from a law enforcement officer position under 

19 investigation or in lieu of termination, and has 

20 not been dismissed from a law enforcement offi21 cer position; and 

22 ‘‘(D) holds a current background investiga23 tion to the level required for service as a law 

24 enforcement officer with U.S. Customs and 

25 Border Protection; and 


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

2 member of the Armed Forces (or a reserve compo3 nent thereof) or a veteran who— 

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

5 at least 3 years; 

6 ‘‘(B) holds, or has held during the most re7 cent 5-year period, a Secret, Top Secret, or Top 

8 Secret/Sensitive Compartmented Information 

9 clearance; 

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

11 background investigation to the level required 

12 for service as a law enforcement officer with 

13 U.S. Customs and Border Protection; 

14 ‘‘(C) holds a current, in-scope background 

15 investigation to the level required for services as 

16 a law enforcement officer with U.S. Customs and 

17 Border Protection; 

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

19 honorable discharge from service in the Armed 

20 Forces and has not engaged in criminal activity 

21 or committed a serious military or civil offense 

22 under the Uniform Code of Military Justice; 

23 and 


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1 ‘‘(E) was not granted any waivers to ob2 tain the clearance referred to subparagraph 

3 (B).’’. 

4 (b) TERMINATION OF WAIVER AUTHORITY.—Section 

5 3(b) of the Anti-Border Corruption Act of 2010, as 

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

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

8 Act. 

9 SEC. 3. SUPPLEMENTAL COMMISSIONER AUTHORITY; RE10 PORTING; DEFINITIONS. 

11 (a) SUPPLEMENTAL COMMISSIONER AUTHORITY.— 

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

13 111–376) is amended by striking section 4 and inserting 

14 the following: 

15 ‘‘SEC. 4. SUPPLEMENTAL COMMISSIONER AUTHORITY. 

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

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

18 hiring requirements relating to suitability for employment 

19 and eligibility to hold a national security designated posi20 tion, as determined by the Commissioner of U.S. Customs 

21 and Border Protection. 

22 ‘‘(b) BACKGROUND INVESTIGATIONS.—Any indi23 vidual who receives a waiver under section 3(b) and holds 

24 a current background investigation may be subject to fur25 ther background investigation to the level required for 


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

2 and Border Protection. 

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

4 who receives a waiver under section 3(b) shall not be ex5 empt from any requirement relating to continuous evalua6 tion established by the Commissioner of U.S. Customs and 

7 Border Protection. 

8 ‘‘(d) ADMINISTRATION OF POLYGRAPH EXAMINA9 TION.—The Commissioner of U.S. Customs and Border 

10 Protection is authorized to administer a polygraph exam11 ination to an applicant or employee who is eligible for or 

12 receives a waiver under section 3(b) if information is dis13 covered before the completion of a background investiga14 tion that results in a determination that a polygraph ex15 amination is necessary to make a final determination re16 garding suitability for employment or continued employ17 ment. 

18 ‘‘SEC. 5. REPORTING. 

19 ‘‘Not later than 1 year after the date of the enact20 ment of the Anti-Border Corruption Improvement Act and 

21 annually thereafter for the following 4 years, the Commis22 sioner of U.S. Customs and Border Protection shall sub23 mit a report to the Committee on Homeland Security and 

24 Governmental Affairs of the Senate and the Committee 


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1 on Homeland Security of the House of Representatives 

2 that identifies— 

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

4 granted, or denied, disaggregated with respect to 

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

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

7 subparagraph (A); and 

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

9 employment at issue; and 

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

11 examination was administered under the conditions 

12 described in section 4(d); 

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

14 in subparagraph (A); and 

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

16 employment at issue. 

17 ‘‘SEC. 6. DEFINITIONS. 

18 ‘‘In this Act: 

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

20 ‘law enforcement officer’ means any law enforcement 

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

22 title 5, United States Code. 

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

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

25 offense for which— 


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

2 be discharged or separated from service in the 

3 Armed Forces; and 

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

5 authorized for the same or a closely related of6 fense under the Manual for Courts-Martial, 

7 pursuant to chapter 14–12 of Army Regulation 

8 635–200. 

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

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

11 38, United States Code.’’. 

12 SEC. 4. TECHNICAL AND CONFORMING AMENDMENT. 

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

14 2002 (6 U.S.C. 211(c)(15)) is amended by striking ‘‘sec15 tion 3(1) of’’. 


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Calendar No. 202 

116TH CONGRESS 

1ST SESSION S. 731 

[Report No. 116–99] 

A BILL 

To amend the Anti-Border Corruption Act of 2010 

and for other purposes. to authorize certain polygraph waiver authority, 

SEPTEMBER 10, 2019 

Reported with an amendment 


pamtmann on DSKBC07HB2PROD with BILLS