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[Senate Report 115-133]
[From the U.S. Government Publishing Office]

                                                     Calendar No. 179
115th Congress      }                                    {     Report
                                 SENATE
 1st Session        }                                    {    115-133
_______________________________________________________________________

                                     

           ANTI-BORDER CORRUPTION REAUTHORIZATION ACT OF 2017

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 595

           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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 July 24, 2017.--Ordered to be printed
                                 ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

69-010                         WASHINGTON : 2017 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
           Jose J. Bautista, Senior Professional Staff Member
   Servando H. Gonzales, U.S. Customs and Border Protection Detailee
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                    Sue Ramanathan, Minority Counsel
                     Laura W. Kilbride, Chief Clerk

                                                     Calendar No. 179
115th Congress      }                                    {     Report
                                 SENATE
 1st Session        }                                    {    115-133

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

 
           ANTI-BORDER CORRUPTION REAUTHORIZATION ACT OF 2017

                                _______
                                

                 July 24, 2017.--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. 595]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 595) to provide 
U.S. Customs and Border Protection with additional flexibility 
to expedite the hiring process for certain applicants for law 
enforcement positions, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment in the nature of a substitute 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. 595, the Anti-Border Corruption 
Reauthorization Act of 2017, is to provide U.S. Customs and 
Border Protection (CBP) with additional flexibility to consider 
applications from certain groups of U.S. veterans and local and 
state law enforcement officers who are considered to be low-
risk for positions available within one of the three 
subcomponents: the Office of Field Operations (OFO), U.S. 
Border Patrol (BP), and Air and Marine Operations (AMO). For 
several years, CBP has struggled to meet its hiring goals. 
Staffing shortages not only hinder CBP's core mission of 
securing the U.S. borders and promoting legitimate trade and 
travel, but they also contribute to low workforce morale.
    This bill waives the polygraph requirement for applicants 
who already meet stringent qualifications, have passed a 
polygraph, and who have a law enforcement background and the 
operational skills necessary to fulfill the responsibilities of 
CBP subcomponents. This bipartisan effort ensures that all 
applicants meet certain threshold requirements to be granted 
the polygraph waiver. Ultimately, a well-staffed CBP promotes 
national security and improves the experience of legitimate 
travelers at air, sea, and land ports of entry.

              II. Background and the Need for Legislation

    CBP is one of the most important law enforcement 
organizations in the United States Government. CBP employs more 
than 60,000 law enforcement and support personnel to carry out 
a dynamic and evolving mission.\1\ 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.\2\
---------------------------------------------------------------------------
    \1\U.S. Customs & Border Protection, Performance and Accountability 
Report Fiscal Year 2016 (2016), available at https://www.cbp.gov/sites/
default/files/assets/documents/2017-Mar/FY-2016-CBP-PAR-508C.pdf.
    \2\Id.
---------------------------------------------------------------------------
    Yet CBP is struggling to fill thousands of law enforcement 
vacancies. According to the component's workforce management 
projections, as of March 4, 2017, CBP is approximately 2,900 
employees short of the congressionally-approved personnel 
numbers for the OFO, BP, and AMO.\3\ At a March 22, 2017 
hearing before the Committee, OFO and BP union representatives 
testified that current staffing shortages are impacting the 
component's workforce morale and ability to fulfill key 
responsibilities.\4\ 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).\5\ This practice has lowered 
the morale of officers as they are away from their families for 
long periods of time.\6\ Additionally, Mr. Reardon told 
Committee Members that for some ports of entry, such as the one 
at San Ysidro, California, CBP is not able to handle the cargo 
and passenger volume, resulting in long wait-times, supply 
chain disruptions, and overworked OFO officers who often only 
have approximately two minutes to make admissibility 
determinations.\7\
---------------------------------------------------------------------------
    \3\Information DHS provided to Committee Staff (Apr. 6, 2017).
    \4\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).
    \5\Id.
    \6\Id.
    \7\Id.
---------------------------------------------------------------------------
    Several internal and external factors have played a role in 
CBP's staffing challenges. 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.\8\ Echoing 
Kerlikowske's concern, CBP's Acting Commissioner, Kevin 
McAleenan, described the polygraph examination as ``both a 
significant deterrent and point of failure for CBP law 
enforcement applicants.''\9\
---------------------------------------------------------------------------
    \8\Associated Press, Two out of three Border Patrol job applicants 
fail polygraph test, making hiring difficult, Los Angeles Times (Jan. 
13, 2017) available at http://www.latimes.com/local/lanow/la-me-border-
patrol-lies-20170113-story.html.
    \9\Memorandum from the Kevin McAleenan, Acting Comm'r of U.S. 
Customs & Border Prot., to the Deputy Sec'y of Homeland Sec. on 
Executive Order Hiring Surge Plan, available at http://
i2.cdn.turner.com/cnn/2017/images/03/07/cbp-memo.pdf
---------------------------------------------------------------------------
    Congress has been conducting oversight on this matter given 
that approximately 65 percent of all applicants fail the 
polygraph examination.\10\ In contrast, other Federal law 
enforcement agencies report failures at around 30 percent.\11\ 
There are a number of possible reasons for this discrepancy, 
though no one reason is dispositive. Attrition and mobility 
limitations also have contributed to low recruitment and 
retention numbers.\12\ CBP will not be able to address 
retention issues without addressing and resolving the problems 
responsible for slowing the hiring pipeline.
---------------------------------------------------------------------------
    \10\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).
    \11\The Department of Homeland Security Fiscal Year 2018 Budget 
Request, Before the S. Comm. on Homeland Sec. & Governmental Affairs, 
115th Cong. (2017).
    \12\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).
---------------------------------------------------------------------------
    To enhance CBP's recruitment efforts, Congress passed 
language in 2016 that gave CBP authority to issue a polygraph 
waiver to certain veterans holding security clearances.\13\ In 
the first six months that CBP exercised this waiver authority, 
90 candidates were considered for the waiver.\14\ Twenty 
applicants met all the requirements to move forward in the 
hiring process; 65 were denied; and 5 were still under review 
as of June 2017.\15\
---------------------------------------------------------------------------
    \13\Pub. L. No. 114-328, Sec. 1049. Note that the authority granted 
in 2016 is narrower than the authority related to veterans proposed in 
this bill.
    \14\Information provided by DHS to HSGAC staff on June 1, 2017.
    \15\Id.
---------------------------------------------------------------------------
    S. 595 would expand CBP's ability to issue a polygraph 
waiver to certain low-risk local and state law enforcement 
officers, Federal law enforcement officers, and veterans 
applying for law enforcement positions at one of the three CBP 
components. Local and state law enforcement officers who have 
the power to arrest and apprehend individuals could be 
considered for the waiver authority if they have served for the 
last three consecutive years; are not under investigation nor 
have been found to have engaged in criminal activity or serious 
misconduct; and have passed a polygraph test in the last ten 
years.
    Similarly, Federal law enforcement officers who have the 
power to arrest, investigate, bear firearms, and serve warrants 
could be considered for the waiver authority if they have 
served for the last three consecutive years; are not under 
investigation nor have been found to have engaged in criminal 
activity or serious misconduct; and hold a current Tier 4 or 
Tier 5 background examination.
    Finally, separating Department of Defense service members 
who have received or are eligible to receive an honorable 
discharge could be considered for the waiver authority if: they 
have served for the last three consecutive years; have not 
engaged in criminal activity or serious misconduct under the 
military code; held a Secret, Top Secret, or TS compartment 
clearance in the last five years without a waiver; and had a 
Tier 4 or Tier 5 background investigation in the last five 
years.
    S. 595 also includes conditions to ensure existing vetting 
standards are maintained. A key provision of the legislation 
authorizes CBP to administer a polygraph test on any candidate 
that received a waiver if the component discovers some 
derogatory information at any point during the application 
process. Further, the legislation limits CBP's use of the 
waiver authority to four years, and requires CBP to justify its 
use to Congress in a report. S. 595 also requires CBP to 
consider alternative methodologies to address its polygraph 
examination challenges, and encourages the components to 
develop a long-term strategic solution to meet their hiring 
goals.

                        III. Legislative History

    S. 595, the Anti-Border Corruption Reauthorization Act of 
2017, was introduced on March 9, 2017, by Senator Jeff Flake 
and was cosponsored by Senators Ron Johnson, John McCain, and 
Claire McCaskill. The bill was referred to the Committee on 
Homeland Security and Governmental Affairs.
    The Committee considered S. 595 at a business meeting on 
May 17, 2017. Senator Johnson offered two amendments. Johnson 
Amendment 1 was a substitute amendment that made changes to 
some of the waiver criteria and added a sunset provision. The 
substitute amendment was adopted by unanimous consent, with 
Senators Johnson, McCain, Portman, Paul, Lankford, Daines, 
McCaskill, Tester, Heitkamp, Peters, Hassan, and Harris 
present. Johnson Amendment 2 clarified the definition of 
Federal law enforcement officer, and was adopted by voice vote, 
with Senators Johnson, McCain, Portman, Paul, Lankford, Daines, 
McCaskill, Tester, Heitkamp, Peters, Hassan, and Harris 
present.
    Senator Heidi Heitkamp offered two amendments. Heitkamp 
Amendment 2, as modified, amended the sunset provision, 
reducing the number of years that the CBP Commissioner is 
authorized to use the waiver authority from five to four. That 
amendment was adopted by voice vote with Senators Johnson, 
McCain, Portman, Paul, Lankford, Daines, McCaskill, Heitkamp, 
Peters, Hassan, and Harris present.
    Heitkamp Amendment 3, as modified, required CBP to include 
in its report an analysis of different methods available to 
detect deception and to complement traditional background 
investigations. That amendment was adopted by voice vote with 
Senators Johnson, McCain, Portman, Paul, Lankford, Daines, 
McCaskill, Heitkamp, Peters, Hassan, and Harris present.
    Senator Kamala Harris offered five amendments. Harris 
Amendment 1, as modified, would have removed the bill's waiver 
authority and replaced it with a requirement that the inspector 
general for the Department report on the impact of the waiver 
authority and limit the purpose of the initiative by turning it 
into a one-year pilot to test the effectiveness of the waiver 
authority. That amendment was not accepted on a voice vote with 
Senators Johnson, McCain, Portman, Paul, Lankford, Daines, 
McCaskill, Tester, Heitkamp, Peters, Hassan, and Harris 
present.
    Harris Amendment 2 was offered and withdrawn, as was Harris 
Amendment 5.
    Harris Amendment 3 would have transferred the reporting 
responsibility from the CBP Commissioner to the DHS inspector 
general and required a final report at the end of the program. 
That amendment was not accepted on a voice vote with Senators 
Johnson, McCain, Portman, Paul, Lankford, Daines, McCaskill, 
Tester, Heitkamp, Peters, Hassan, and Harris present.
    Harris Amendment 4 would have required the Department to 
provide monthly reports to Congress with detailed information 
regarding apprehensions and removals. That amendment was not 
accepted on a voice vote with Senators Johnson, McCain, 
Portman, Paul, Lankford, Daines, McCaskill, Tester, Heitkamp, 
Peters, Hassan, and Harris present.
    The Committee ordered S. 595 reported favorably, as amended 
by Johnson Amendments 1 and 2 and Heitkamp Amendments 2 as 
modified and 3 as modified, on May 17, 2017, by a roll call 
vote of 9 yeas to 2 nays. Senators voting in the affirmative 
were Johnson, McCain, Portman, Paul, Lankford, Daines, 
McCaskill, Heitkamp, and Peters. Senators voting in the 
negative were Hassan and Harris. For the record only, Senators 
Enzi, Hoeven, and Tester voted ``aye'' by proxy. For the record 
only, Senator Carper voted ``nay'' by proxy.

        IV. Section-by-Section Analysis of the Bill, as Reported

Sec. 1. Short title

    This section provides the bill's short title, the ``Anti-
Border Corruption Reauthorization Act of 2017.''

Sec. 2. Hiring flexibility

    This section authorizes the Commissioner of CBP to waive 
the application of a polygraph examination for Federal, state, 
and local law enforcement officers as well as members of the 
Armed Forces or veterans who meet the stringent requirements 
outlined in the section.
    Additionally, this section sets a sunset on the 
Commissioner's authority to issue a waiver four years after the 
date of enactment of the bill.

Sec. 3. Supplemental Commissioner authority and definitions

    This section outlines additional authorities and 
responsibilities of the Commissioner as they relate to the 
polygraph waiver authorized by the legislation. First, it makes 
clear that any individual who receives a polygraph waiver is 
not exempt from other hiring requirements as determined by the 
Commissioner. Second, it directs that any individual who 
receives a polygraph waiver and currently holds a Tier 4 
background investigation shall be subject to a Tier 5 
background investigation. Third, it authorizes the Commissioner 
to administer a polygraph examination to an individual who was 
eligible to receive or did receive a waiver if information is 
gathered during the application process that would warrant such 
an examination before a final determination on employment.
    This section also requires that the Commissioner submit an 
annual report to Congress that includes details on the use of 
the polygraph waiver authority; an assessment of the impact the 
authority is having on filling law enforcement positions at 
CBP; any additional authorities that may be necessary to carry 
out the waiver program; and an analysis with recommendations on 
other methods of employment suitability tests that could detect 
deception.
    Finally, Section 3 defines key terms: ``federal law 
enforcement officer'', ``veteran'', a ``serious military or 
civil offense'', and ``Tier 4 and Tier 5''.

                   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 act and determined 
that the act will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the act 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

                                                     June 12, 2017.
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. 595, the Anti-Border 
Corruption Reauthorization Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 595--Anti-Border Corruption Reauthorization Act of 2017

    Current law requires U.S. Customs and Border Protection 
(CBP) to administer polygraph examinations to nearly all 
applicants for law enforcement positions. S. 595 would broaden 
the criteria for waiving the polygraph requirement for certain 
applicants. Based on 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.
    Enacting the legislation would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply. 
CBO estimates that enacting S. 595 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 595 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    On May 12, 2017, CBO transmitted a cost estimate for H.R. 
2213, the Anti-Border Corruption Reauthorization Act of 2017, 
as ordered reported by the House Committee on Homeland Security 
on May 3, 2017. The two bills are similar and CBO's estimates 
of the budgetary effects are the same.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Act, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 595 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 TO LAW ENFORCEMENT PERSONNEL OF U.S. 
                    CUSTOMS AND BORDER PROTECTION.

    (a) * * *
    [(b) Waiver.--The Commissioner of U.S. Customs and Border 
Protection may waive the polygraph examination requirement 
under subsection (a)(1) for any applicant who--
        [(1) is deemed suitable for employment;
        [(2) holds a current, active Top Secret/Sensitive 
        Compartmented Information Clearance;
        [(3) has a current Single Scope Background 
        Investigation;
        [(4) was not granted any waivers to obtain his or her 
        clearance; and
        [(5) is a veteran (as defined in section 2108 of title 
        5).]
    (b) Waiver Authority.--The Commissioner of U.S. Customs and 
Border Protection may waive the application of subsection 
(a)(1) for any of the following applicants:
          (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 
                less than three years;
                  (B) holds, or has held during 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.

ANTI-BORDER CORRUPTION ACT OF 2010

           *       *       *       *       *       *       *

[SEC. 4. PROGESS 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) 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.

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).

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 11 
                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.

                                  [all]
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