Anti-Border Corruption Improvement Act

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 Secu- rity 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 author- ize certain polygraph waiver authority, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Anti-Border Corrup- 4 tion Improvement Act’’. 5 VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 731 RS SEC. 2. HIRING FLEXIBILITY. 1 (a) IN GENERAL.—Section 3(b) of the Anti-Border 2 Corruption Act of 2010 (6 U.S.C. 221) is amended to read 3 as follows: 4 ‘‘(b) WAIVER AUTHORITY.—The Commissioner of 5 U.S. Customs and Border Protection may waive the appli- 6 cation of subsection (a)(1)— 7 ‘‘(1) with respect to any current, full-time, law 8 enforcement officer employed by a State or local law 9 enforcement agency who— 10 ‘‘(A) has served as a law enforcement offi- 11 cer for at least 3 years with no break in service; 12 ‘‘(B) is authorized by law to engage in, or 13 supervise, the prevention, detection, investiga- 14 tion, prosecution, or incarceration of any person 15 for any violation of law, and has statutory pow- 16 ers for arrest or apprehension; 17 ‘‘(C) is not currently under investigation, 18 has not been found to have engaged in criminal 19 activity or serious misconduct, has not resigned 20 from a law enforcement officer position under 21 investigation or in lieu of termination, and has 22 not been dismissed from a law enforcement offi- 23 cer position; and 24 ‘‘(D) has, during the most recent 10-year 25 period, successfully completed a polygraph ex- 26 VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 731 RS amination that satisfies requirements estab- 1 lished by the Secretary of Homeland Security, 2 in consultation with the Director of National 3 Intelligence, as a condition of employment with 4 such officer’s current law enforcement agency; 5 ‘‘(2) with respect to any current, full-time, law 6 enforcement officer employed by a Federal law en- 7 forcement agency who— 8 ‘‘(A) has served as a law enforcement offi- 9 cer for at least 3 years with no break in service; 10 ‘‘(B) has authority to make arrests, con- 11 duct investigations, conduct searches, make sei- 12 zures, carry firearms, and serve orders, war- 13 rants, and other processes; 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 offi- 20 cer position; and 21 ‘‘(D) holds a current background investiga- 22 tion to the level required for service as a law 23 enforcement officer with U.S. Customs and 24 Border Protection; and 25 VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 731 RS ‘‘(3) with respect to any individual who is a 1 member of the Armed Forces (or a reserve compo- 2 nent thereof) or a veteran who— 3 ‘‘(A) has served in the Armed Forces for 4 at least 3 years; 5 ‘‘(B) holds, or has held during the most re- 6 cent 5-year period, a Secret, Top Secret, or Top 7 Secret/Sensitive Compartmented Information 8 clearance; 9 ‘‘(C) holds or has undergone and passed a 10 background investigation to the level required 11 for service as a law enforcement officer with 12 U.S. Customs and Border Protection; 13 ‘‘(C) holds a current, in-scope background 14 investigation to the level required for services as 15 a law enforcement officer with U.S. Customs and 16 Border Protection; 17 ‘‘(D) received, or is eligible to receive, an 18 honorable discharge from service in the Armed 19 Forces and has not engaged in criminal activity 20 or committed a serious military or civil offense 21 under the Uniform Code of Military Justice; 22 and 23 VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 731 RS ‘‘(E) was not granted any waivers to ob- 1 tain the clearance referred to subparagraph 2 (B).’’. 3 (b) TERMINATION OF WAIVER AUTHORITY.—Section 4 3(b) of the Anti-Border Corruption Act of 2010, as 5 amended by subsection (a), shall be repealed on the date 6 that is 5 years after the date of the enactment of this 7 Act. 8 SEC. 3. SUPPLEMENTAL COMMISSIONER AUTHORITY; RE- 9 PORTING; DEFINITIONS. 10 (a) SUPPLEMENTAL COMMISSIONER AUTHORITY.— 11 The Anti-Border Corruption Act of 2010 (Public Law 12 111–376) is amended by striking section 4 and inserting 13 the following: 14 ‘‘SEC. 4. SUPPLEMENTAL COMMISSIONER AUTHORITY. 15 ‘‘(a) NONEXEMPTION.—An individual who receives a 16 waiver under section 3(b) shall not be exempt from other 17 hiring requirements relating to suitability for employment 18 and eligibility to hold a national security designated posi- 19 tion, as determined by the Commissioner of U.S. Customs 20 and Border Protection. 21 ‘‘(b) BACKGROUND INVESTIGATIONS.—Any indi- 22 vidual who receives a waiver under section 3(b) and holds 23 a current background investigation may be subject to fur- 24 ther background investigation to the level required for 25 VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 731 RS service as a law enforcement officer with U.S. Customs 1 and Border Protection. 2 ‘‘(c) CONTINUOUS EVALUATION.—Any individual 3 who receives a waiver under section 3(b) shall not be ex- 4 empt from any requirement relating to continuous evalua- 5 tion established by the Commissioner of U.S. Customs and 6 Border Protection. 7 ‘‘(d) ADMINISTRATION OF POLYGRAPH EXAMINA- 8 TION.—The Commissioner of U.S. Customs and Border 9 Protection is authorized to administer a polygraph exam- 10 ination to an applicant or employee who is eligible for or 11 receives a waiver under section 3(b) if information is dis- 12 covered before the completion of a background investiga- 13 tion that results in a determination that a polygraph ex- 14 amination is necessary to make a final determination re- 15 garding suitability for employment or continued employ- 16 ment. 17 ‘‘SEC. 5. REPORTING. 18 ‘‘Not later than 1 year after the date of the enact- 19 ment of the Anti-Border Corruption Improvement Act and 20 annually thereafter for the following 4 years, the Commis- 21 sioner of U.S. Customs and Border Protection shall sub- 22 mit a report to the Committee on Homeland Security and 23 Governmental Affairs of the Senate and the Committee 24 VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 731 RS on Homeland Security of the House of Representatives 1 that identifies— 2 ‘‘(1)(A) the number of waivers requested, 3 granted, or denied, disaggregated with respect to 4 each of paragraphs (1), (2), and (3) of section 3(b); 5 ‘‘(B) the reasons for any denial referred to in 6 subparagraph (A); and 7 ‘‘(C) the final outcome of the application for 8 employment at issue; and 9 ‘‘(2)(A) the number of instances a polygraph 10 examination was administered under the conditions 11 described in section 4(d); 12 ‘‘(B) the result of each examination referred to 13 in subparagraph (A); and 14 ‘‘(C) the final outcome of the application for 15 employment at issue. 16 ‘‘SEC. 6. DEFINITIONS. 17 ‘‘In this Act: 18 ‘‘(1) LAW ENFORCEMENT OFFICER.—The term 19 ‘law enforcement officer’ means any law enforcement 20 officer described in section 8331(20) or 8401(17) of 21 title 5, United States Code. 22 ‘‘(2) SERIOUS MILITARY OR CIVIL OFFENSE.— 23 The term ‘serious military or civil offense’ means an 24 offense for which— 25 VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 731 RS ‘‘(A) a member of the Armed Forces may 1 be discharged or separated from service in the 2 Armed Forces; and 3 ‘‘(B) a punitive discharge is, or would be, 4 authorized for the same or a closely related of- 5 fense under the Manual for Courts-Martial, 6 pursuant to chapter 14–12 of Army Regulation 7 635–200. 8 ‘‘(3) VETERAN.—The term ‘veteran’ has the 9 meaning given such term in section 101(2) of title 10 38, United States Code.’’. 11 SEC. 4. TECHNICAL AND CONFORMING AMENDMENT. 12 Section 411(c)(15) of the Homeland Security Act of 13 2002 (6 U.S.C. 211(c)(15)) is amended by striking ‘‘sec- 14 tion 3(1) of’’. 15 VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS Calendar No. 202 116TH CONGRESS 1ST SESSION S. 731 [Report No. 116–99] A BILL To amend the Anti-Border Corruption Act of 2010 to authorize certain polygraph waiver authority, and for other purposes. SEPTEMBER 10, 2019 Reported with an amendment VerDate Sep 11 2014 22:07 Sep 10, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6651 Sfmt 6651 E:\BILLS\S731.RS S731 pamtmann on DSKBC07HB2PROD with BILLS