II Calendar No. 179 115th CONGRESS 1st Session S. 595 [Report No. 115–133] 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. Short title This Act may be cited as the Anti-Border Corruption Reauthorization Act of 2017 . 2. Expanded authority to waive polygraph examinations for certain applicants for law enforcement positions with U.S. Customs and Border Protection Section 3 of the Anti-Border Corruption Act of 2010 ( 6 U.S.C. 221 ) is amended by striking subsection (b) and inserting the following: (b) Waiver The Commissioner of U.S. Customs and Border Protection may waive the polygraph examination requirement under subsection (a)(1) for any of the following applicants: (1) An applicant who, at the time the applicant applies for a law enforcement position with U.S. Customs and Border Protection, is a State or local law enforcement officer, if the officer— (A) has served as a State or local law enforcement officer for not less than 3 years with no break in service; (B) is authorized by law to engage in or supervise the prevention, detection, or investigation of any violation of law, or the apprehension, arrest, prosecution, or incarceration of any individual for any violation of law; (C) is not under investigation, has not been found to have engaged in criminal activity or serious misconduct, has not resigned from a position as a law enforcement officer under investigation or in lieu of termination, and has not been dismissed from a position as a law enforcement officer; and (D) has successfully completed a polygraph examination as a condition of employment with the applicant's law enforcement agency. (2) An applicant who, at the time the applicant applies for a law enforcement position with U.S. Customs and Border Protection, is a Federal law enforcement officer, if the officer— (A) has served as a Federal law enforcement officer for not less than 3 years with no break in service; (B) has authority to make arrests, conduct investigations, conduct searches, make seizures, bear firearms, and serve orders, warrants, and other processes; (C) is not under investigation, has not been found to have engaged in criminal activity or serious misconduct, has not resigned from a position as a law enforcement officer under investigation or in lieu of termination, and has not been dismissed from a position as a law enforcement officer; and (D) has undergone an in-scope Tier 4 background investigation or a Tier 5 single scope background investigation as a condition of employment with the applicant’s law enforcement agency. (3) An applicant who, at the time the applicant applies for a law enforcement position with U.S. Customs and Border Protection, is a transitioning member of the Armed Forces, a veteran, or a member of the National Guard, if such individual— (A) has served in the Armed Forces for not less than 4 years; (B) holds, or has held during the 5 years preceding applying for the position, a Secret, Top Secret, or Top Secret/Sensitive Compartmented Information clearance and was not granted any waiver to obtain such clearance; (C) has undergone, during the 5 years preceding applying for the position, an in-scope Tier 4 background investigation or a Tier 5 single scope background investigation; and (D) was discharged or released, or is eligible to be discharged or released, from the Armed Forces under honorable conditions and has not engaged in criminal activity or serious misconduct under the Uniform Code of Military Justice under chapter 47 of title 10, United States Code. (c) Rule of construction Nothing in this section shall be construed to authorize the Commissioner to hire an individual for a law enforcement position under subsection (a) who is not suitable for employment and eligible for a position designated as relating to national security. (d) Background investigations An individual who receives a waiver under subsection (b) who holds a Tier 4 background investigation shall be subject to a Tier 5 single scope background investigation. (e) Authority To administer polygraph examinations after waiver The Commissioner may administer a polygraph examination to an individual who applied for a law enforcement position with U.S. Customs and Border Protection and received a waiver under subsection (b) if the Commissioner determines, based on information discovered before the completion of a background investigation of the individual, that a polygraph examination is necessary for the Commissioner to make a final determination with respect to the suitability of the individual for the position. (f) Definitions In this section: (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) Transitioning member of the Armed Forces The term transitioning member of the Armed Forces means a member of the Armed Forces serving on active duty on the date on which the member applies for a law enforcement position with U.S. Customs and Border Protection who expects to be discharged or released from the Armed Forces and plans to take a position in the competitive service (as defined section 2102 of title 5, United States Code). (3) Veteran The term veteran has the meaning given that term in section 101(2) of title 38, United States Code. .

1. Short title This Act may be cited as the Anti-Border Corruption Reauthorization Act of 2017 . 2. Hiring flexibility Section 3 of the Anti-Border Corruption Act of 2010 ( Public Law 111–376 ; 6 U.S.C. 221 ) is amended by striking subsection (b) and inserting the following new subsections: (b) Waiver authority The Commissioner of U.S. Customs and Border Protection may waive the application of subsection (a)(1) in the following circumstances: (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 fewer than three years; (B) holds, or has held within 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 . . 3. Supplemental Commissioner authority and definitions (a) Supplemental Commissioner authority Section 4 of the Anti-Border Corruption Act of 2010 ( Public Law 111–376 ) is amended to read as follows: 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. . (b) Report The Anti-Border Corruption Act of 2010 is amended by adding at the end the following new section: 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). . (c) Definitions The Anti-Border Corruption Act of 2010, as amended by subsection (b) of this section, is further amended by adding at the end the following new section: 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 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. .

July 24, 2017 Reported with an amendment