II 

Calendar No. 179 

115TH CONGRESS 

1ST SESSION S. 595 

[Report No. 115–133] 

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. 

IN THE SENATE OF THE UNITED STATES 

MARCH 9, 2017 

Mr. FLAKE (for himself, Mr. MCCAIN, Mr. JOHNSON, and Mrs. MCCASKILL) 

introduced the following bill; which was read twice and referred to the 

Committee on Homeland Security and Governmental Affairs 

JULY 24, 2017 

Reported by Mr. JOHNSON, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

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. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Anti-Border Corrup3 tion Reauthorization Act of 2017’’. 

4 SEC. 2. EXPANDED AUTHORITY TO WAIVE POLYGRAPH EX5 AMINATIONS FOR CERTAIN APPLICANTS FOR 

6 LAW ENFORCEMENT POSITIONS WITH U.S. 

7 CUSTOMS AND BORDER PROTECTION. 

8 Section 3 of the Anti-Border Corruption Act of 2010 

9 (6 U.S.C. 221) is amended by striking subsection (b) and 

10 inserting the following: 

11 ‘‘(b) WAIVER.—The Commissioner of U.S. Customs 

12 and Border Protection may waive the polygraph examina13 tion requirement under subsection (a)(1) for any of the 

14 following applicants: 

15 ‘‘(1) An applicant who, at the time the appli16 cant applies for a law enforcement position with 

17 U.S. Customs and Border Protection, is a State or 

18 local law enforcement officer, if the officer— 

19 ‘‘(A) has served as a State or local law en20 forcement officer for not less than 3 years with 

21 no break in service; 

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

23 supervise the prevention, detection, or investiga24 tion of any violation of law, or the apprehen25 sion, arrest, prosecution, or incarceration of any 

26 individual for any violation of law; 


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1 ‘‘(C) is not under investigation, has not 

2 been found to have engaged in criminal activity 

3 or serious misconduct, has not resigned from a 

4 position as a law enforcement officer under in5 vestigation or in lieu of termination, and has 

6 not been dismissed from a position as a law en7 forcement officer; and 

8 ‘‘(D) has successfully completed a poly9 graph examination as a condition of employ10 ment with the applicant’s law enforcement 

11 agency. 

12 ‘‘(2) An applicant who, at the time the appli13 cant applies for a law enforcement position with 

14 U.S. Customs and Border Protection, is a Federal 

15 law enforcement officer, if the officer— 

16 ‘‘(A) has served as a Federal law enforce17 ment officer for not less than 3 years with no 

18 break in service; 

19 ‘‘(B) has authority to make arrests, con20 duct investigations, conduct searches, make sei21 zures, bear firearms, and serve orders, war22 rants, and other processes; 

23 ‘‘(C) is not under investigation, has not 

24 been found to have engaged in criminal activity 

25 or serious misconduct, has not resigned from a 


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1 position as a law enforcement officer under in2 vestigation or in lieu of termination, and has 

3 not been dismissed from a position as a law en4 forcement officer; and 

5 ‘‘(D) has undergone an in-scope Tier 4 

6 background investigation or a Tier 5 single 

7 scope background investigation as a condition 

8 of employment with the applicant’s law enforce9 ment agency. 

10 ‘‘(3) An applicant who, at the time the appli11 cant applies for a law enforcement position with 

12 U.S. Customs and Border Protection, is a 

13 transitioning member of the Armed Forces, a vet14 eran, or a member of the National Guard, if such 

15 individual— 

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

17 not less than 4 years; 

18 ‘‘(B) holds, or has held during the 5 years 

19 preceding applying for the position, a Secret, 

20 Top Secret, or Top Secret/Sensitive Compart21 mented Information clearance and was not 

22 granted any waiver to obtain such clearance; 

23 ‘‘(C) has undergone, during the 5 years 

24 preceding applying for the position, an in-scope 


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1 Tier 4 background investigation or a Tier 5 sin2 gle scope background investigation; and 

3 ‘‘(D) was discharged or released, or is eli4 gible to be discharged or released, from the 

5 Armed Forces under honorable conditions and 

6 has not engaged in criminal activity or serious 

7 misconduct under the Uniform Code of Military 

8 Justice under chapter 47 of title 10, United 

9 States Code. 

10 ‘‘(c) RULE OF CONSTRUCTION.—Nothing in this sec11 tion shall be construed to authorize the Commissioner to 

12 hire an individual for a law enforcement position under 

13 subsection (a) who is not suitable for employment and eli14 gible for a position designated as relating to national secu15 rity. 

16 ‘‘(d) BACKGROUND INVESTIGATIONS.—An individual 

17 who receives a waiver under subsection (b) who holds a 

18 Tier 4 background investigation shall be subject to a Tier 

19 5 single scope background investigation. 

20 ‘‘(e) AUTHORITY TO ADMINISTER POLYGRAPH EX21 AMINATIONS AFTER WAIVER.—The Commissioner may 

22 administer a polygraph examination to an individual who 

23 applied for a law enforcement position with U.S. Customs 

24 and Border Protection and received a waiver under sub25 section (b) if the Commissioner determines, based on inVerDate Sep 11 2014 02:57 Jul 25, 2017 Jkt 069200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S595.RS S595

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1 formation discovered before the completion of a back2 ground investigation of the individual, that a polygraph 

3 examination is necessary for the Commissioner to make 

4 a final determination with respect to the suitability of the 

5 individual for the position. 

6 ‘‘(f) DEFINITIONS.—In this section: 

7 ‘‘(1) FEDERAL LAW ENFORCEMENT OFFICER.— 

8 The term ‘Federal law enforcement officer’ means a 

9 ‘law enforcement officer’, as defined in section 

10 8331(20) or 8401(17) of title 5, United States Code. 

11 ‘‘(2) TRANSITIONING MEMBER OF THE ARMED

12 FORCES.—The term ‘transitioning member of the 

13 Armed Forces’ means a member of the Armed 

14 Forces serving on active duty on the date on which 

15 the member applies for a law enforcement position 

16 with U.S. Customs and Border Protection who ex17 pects to be discharged or released from the Armed 

18 Forces and plans to take a position in the competi19 tive service (as defined section 2102 of title 5, 

20 United States Code). 

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

22 meaning given that term in section 101(2) of title 

23 38, United States Code.’’. 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Anti-Border Corruption 

3 Reauthorization Act of 2017’’. 

4 SEC. 2. HIRING FLEXIBILITY. 

5 Section 3 of the Anti-Border Corruption Act of 2010 

6 (Public Law 111–376; 6 U.S.C. 221) is amended by striking 

7 subsection (b) and inserting the following new subsections: 

8 ‘‘(b) WAIVER AUTHORITY.—The Commissioner of U.S. 

9 Customs and Border Protection may waive the application 

10 of subsection (a)(1) in the following circumstances: 

11 ‘‘(1) In the case of a current, full-time law en12 forcement officer employed by a State or local law en13 forcement agency, if such officer— 

14 ‘‘(A) has served as a law enforcement officer 

15 for not fewer than three years with no break in 

16 service; 

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

18 supervise the prevention, detection, investigation, 

19 or prosecution of, or the incarceration of any 

20 person for, any violation of law, and has statu21 tory powers for arrest or apprehension; 

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

23 has not been found to have engaged in criminal 

24 activity or serious misconduct, has not resigned 

25 from a law enforcement officer position under 

26 investigation or in lieu of termination, and has 


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1 not been dismissed from a law enforcement offi2 cer position; and 

3 ‘‘(D) has, within the past ten years, success4 fully completed a polygraph examination as a 

5 condition of employment with such officer’s cur6 rent law enforcement agency. 

7 ‘‘(2) In the case of a current, full-time Federal 

8 law enforcement officer, if such officer— 

9 ‘‘(A) has served as a law enforcement officer 

10 for not fewer than three years with no break in 

11 service; 

12 ‘‘(B) has authority to make arrests, conduct 

13 investigations, conduct searches, make seizures, 

14 carry firearms, and serve orders, warrants, and 

15 other processes; 

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

17 has not been found to have engaged in criminal 

18 activity or serious misconduct, has not resigned 

19 from a law enforcement officer position under 

20 investigation or in lieu of termination, and has 

21 not been dismissed from a law enforcement offi22 cer position; and 

23 ‘‘(D) holds a current Tier 4 background in24 vestigation or current Tier 5 background inves25 tigation. 


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1 ‘‘(3) In the case of an individual who is a mem2 ber of the Armed Forces (or a reserve component 

3 thereof) or a veteran, if such individual— 

4 ‘‘(A) has served in the Armed Forces for not 

5 fewer than three years; 

6 ‘‘(B) holds, or has held within the past five 

7 years, a Secret, Top Secret, or Top Secret / Sen8 sitive Compartmented Information clearance; 

9 ‘‘(C) holds, or has undergone within the 

10 past five years, a current Tier 4 background in11 vestigation or current Tier 5 background inves12 tigation; 

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

14 honorable discharge from service in the Armed 

15 Forces and has not engaged in criminal activity 

16 or committed a serious military or civil offense 

17 under the Uniform Code of Military Justice; and 

18 ‘‘(E) was not granted any waivers to obtain 

19 the clearance referred to subparagraph (B). 

20 ‘‘(c) TERMINATION OF WAIVER AUTHORITY.—The au21 thority to issue a waiver under subsection (b) shall termi22 nate on the date that is four years after the date of the 

23 enactment of the Anti-Border Corruption Reauthorization 

24 Act of 2017.’’. 


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1 SEC. 3. SUPPLEMENTAL COMMISSIONER AUTHORITY AND 

2 DEFINITIONS. 

3 (a) SUPPLEMENTAL COMMISSIONER AUTHORITY.— 

4 Section 4 of the Anti-Border Corruption Act of 2010 (Public 

5 Law 111–376) is amended to read as follows: 

6 ‘‘SEC. 4. SUPPLEMENTAL COMMISSIONER AUTHORITY. 

7 ‘‘(a) NON-EXEMPTION.—An individual who receives a 

8 waiver under subsection (b) of section 3 is not exempt from 

9 other hiring requirements relating to suitability for employ10 ment and eligibility to hold a national security designated 

11 position, as determined by the Commissioner of U.S. Cus12 toms and Border Protection. 

13 ‘‘(b) BACKGROUND INVESTIGATIONS.—Any individual 

14 who receives a waiver under subsection (b) of section 3 who 

15 holds a current Tier 4 background investigation shall be 

16 subject to a Tier 5 background investigation. 

17 ‘‘(c) ADMINISTRATION OF POLYGRAPH EXAMINA18 TION.—The Commissioner of U.S. Customs and Border 

19 Protection is authorized to administer a polygraph exam20 ination to an applicant or employee who is eligible for or 

21 receives a waiver under subsection (b) of section 3 if infor22 mation is discovered prior to the completion of a back23 ground investigation that results in a determination that 

24 a polygraph examination is necessary to make a final deter25 mination regarding suitability for employment or contin26 ued employment, as the case may be.’’. 


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1 (b) REPORT.—The Anti-Border Corruption Act of 

2 2010 is amended by adding at the end the following new 

3 section: 

4 ‘‘SEC. 5. REPORTING REQUIREMENTS. 

5 ‘‘(a) ANNUAL REPORT.—Not later than one year after 

6 the date of the enactment of the Anti-Border Corruption Re7 authorization Act of 2017, and annually thereafter while 

8 the waiver authority under section 3(b) is in effect, the 

9 Commissioner of U.S. Customs and Border Protection shall 

10 submit a report to Congress that includes, with respect to 

11 the reporting period— 

12 ‘‘(1) the number of waivers requested, granted, 

13 and denied under section 3(b); 

14 ‘‘(2) the reasons for any denials of such waiver; 

15 ‘‘(3) the percentage of applicants who were hired 

16 after receiving a waiver; 

17 ‘‘(4) the number of instances that a polygraph 

18 was administered to an applicant who initially re19 ceived a waiver and the results of such polygraph; 

20 ‘‘(5) an assessment of the current impact of the 

21 polygraph waiver program on filling law enforcement 

22 positions at U.S. Customs and Border Protection; and 

23 ‘‘(6) additional authorities needed by U.S. Cus24 toms and Border Protection to better utilize the poly25 graph waiver program for its intended goals. 


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1 ‘‘(b) ADDITIONAL INFORMATION.—The first report sub2 mitted under subsection (a) shall include— 

3 ‘‘(1) an analysis of other methods of employment 

4 suitability tests that detect deception and could be 

5 used in conjunction with traditional background in6 vestigations to evaluate potential employees for suit7 ability; and 

8 ‘‘(2) a recommendation regarding whether a test 

9 referred to in paragraph (1) should be adopted by 

10 U.S. Customs and Border Protection when the poly11 graph examination requirement is waived pursuant 

12 to section 3(b).’’. 

13 (c) DEFINITIONS.—The Anti-Border Corruption Act of 

14 2010, as amended by subsection (b) of this section, is further 

15 amended by adding at the end the following new section: 

16 ‘‘SEC. 6. DEFINITIONS. 

17 ‘‘In this Act: 

18 ‘‘(1) FEDERAL LAW ENFORCEMENT OFFICER.— 

19 The term ‘Federal law enforcement officer’ means a 

20 ‘law enforcement officer’, as defined in section 

21 8331(20) or 8401(17) of title 5, United States Code. 

22 ‘‘(2) VETERAN.—The term ‘veteran’ has the 

23 meaning given such term in section 101(2) of title 38, 

24 United States Code. 


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1 ‘‘(3) SERIOUS MILITARY OR CIVIL OFFENSE.— 

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

3 offense for which— 

4 ‘‘(A) a member of the Armed Forces may be 

5 discharged or separated from service in the 

6 Armed Forces; and 

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

8 authorized for the same or a closely related of9 fense under the Manual for Courts-Martial, as 

10 pursuant to Army Regulation 635-200 chapter 

11 14-12. 

12 ‘‘(4) TIER 4; TIER 5.—The terms ‘Tier 4’ and 

13 ‘Tier 5’ with respect to background investigations 

14 have the meaning given such terms under the 2012 

15 Federal Investigative Standards.’’. 


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Calendar No. 179 

115TH CONGRESS 

1ST SESSION S. 595 

[Report No. 115–133] 

A BILL 

To provide U.S. Customs and Border Protection 

tions, and for other purposes. process for applicants for law enforcement posiwith additional flexibility to expedite the hiring 

JULY 24, 2017 

Reported with an amendment 


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