Current status is Read twice and referred to the Committee on Homeland Security and Governmental Affairs.

119th CONGRESS

1st Session

S. 2163

1. Short title
2. Hiring flexibility
3. Supplemental Commissioner authority and definitions

1. Short title

This Act may be cited as the "Border Patrol Recruitment Enhancement Act".

2. Hiring flexibility

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 authority - The Commissioner for U.S. Customs and Border Protection may waive the application of subsection (a)(1) for any of the following individuals:

(1) - A current, full-time law enforcement officer employed by a State or local law enforcement agency who—

(A) - has served as a law enforcement officer for not fewer than 3 years with no break in service during the most recent 3-year period;

(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, does not have disciplinary, misconduct, or derogatory records, has not been convicted of, and does not have pending charges related to, a criminal offense or misconduct;

(D) - has not resigned from a law enforcement officer position under investigation or in lieu of termination;

(E) - has not been dismissed from a law enforcement officer position; and

(F) - has, within the most recent 10-year period, successfully passed a polygraph examination as a condition of employment with such officer's current law enforcement agency and can provide verification of passing such examination.

(2) - A current, full-time Federal law enforcement officer who—

(A) - has served as a law enforcement officer for not fewer than 3 years with no break in service during the most recent 3-year period;

(B) - is authorized to make arrests, conduct investigations, conduct searches, make seizures, carry firearms, and serve orders, warrants, and other processes;

(D) - has not resigned from a law enforcement officer position under investigation or in lieu of termination;

(E) - has not been dismissed from a law enforcement officer position; and

(F) - holds a current background investigation, in accordance with current standards required to be eligible for access to Top Secret or Top Secret/Sensitive Compartmented Information.

(3) - A member of the Armed Forces (or of a reserve component thereof) or a veteran who—

(A) - has served in the Armed Forces for not fewer than 3 years;

(B) - holds, or has undergone within the most recent 5-year period, a current background investigation in accordance with current standards required to be eligible for access to Top Secret or Top Secret/Sensitive Compartmented Information;

(D) - has not been convicted of, and does not have pending criminal charges related to, a criminal offense or misconduct;

(E) - has not committed a military offense under the Uniform Code of Military Justice; and

(F) - does not have disciplinary, misconduct, or derogatory records.

(c) Termination of waiver authority - The authority to issue a waiver under subsection (b) shall terminate on the date that is 5 years after the date of the enactment of the Border Patrol Recruitment Enhancement Act.

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 - Any individual who receives a waiver pursuant to section 3(b) is not exempt from other hiring requirement relating to suitability for employment and eligibility to hold a national security designated position, as determined by the Commissioner for U.S. Customs and Border Protection.

(b) Background investigations - Any individual who receives a waiver pursuant to section 3(b) and holds a background investigation in accordance with current standards required for access to Top Secret or Top Secret Sensitive Compartmented Information shall be subject to an appropriate background investigation.

(c) Administration of polygraph examination - The Commissioner for U.S. Customs and Border Protection is authorized to administer a polygraph examination to an applicant or employee who receives, or is eligible for, a waiver under section 3(b) if information is discovered before 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 (Public Law 111–376), as amended by subsection (a), is further amended by adding at the end the following:

5. Reporting requirements

(a) Annual report - Not later than 1 year after the date of the enactment of the Border Patrol Recruitment Enhancement Act, and annually thereafter for the following 4 years, the Commissioner for 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 granted pursuant to section 3(b);

(2) - the number of requests for a waiver under section 3(b) that were denied, including the reasons for each such denial;

(3) - the percentage of applicants who were hired after receiving a waiver pursuant to section 3(b);

(4) - the number of instances in which a polygraph examination was administered to an application who initially received a waiver pursuant to section 3(b), and the results of each such examination;

(5) - an assessment of the impact of the polygraph waiver program on filling law enforcement positions at U.S. Customs and Border Protection;

(6) - additional authorities that U.S. Customs and Border Protection needs to better utilize the polygraph waiver program in order to achieve its intended goals; and

(7) - any disciplinary actions taken against law enforcement officers hired after receiving a waiver pursuant to section 3(b).

(b) Additional information - The first report submitted to Congress pursuant to subsection (a) shall include—

(1) - an analysis of other employment suitability tests to detect deception that 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 utilized whenever the polygraph examination requirement is waived pursuant to section 3(b).

(c) GAO report - The Anti-Border Corruption Act of 2010 (Public Law 111–376), as amended by subsections (a) and (b), is further amended by adding at the end the following:

6. GAO report

Not later than 5 years after the date of the enactment of the Border Patrol Recruitment Enhancement Act, and every 5 years thereafter for the following 10 years, the Comptroller General of the United States shall—

(1) - review the disciplinary, misconduct, and derogatory records of all individuals hired using the waiver authority under section 3(b)—

(A) - to determine the rates of disciplinary actions taken against individuals hired using such waiver authority compared to individuals hired after passing the polygraph examination required under section 3(a); and

(B) - to address any other issue relating to discipline by U.S. Customs and Border Protection; and

(2) - submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives that describes the results of the review described in paragraph (1), while appropriately protecting sensitive information.

(d) Definitions - The Anti-Border Corruption Act of 2010 (Public Law 111–376), as amended by subsections (a), (b), and (c), is further amended by adding at the end the following:

7. Definitions

In this Act:

(1) Criminal offense - The term criminal offense means—

(A) - any felony punishable by a term of imprisonment of more than 1 year; or

(B) - any other crime for which an essential element involves fraud, deceit, or misrepresentation to obtain an advantage or to disadvantage another person.

(2) Federal law enforcement officer - The term Federal law enforcement officer has the meanings given the term "law enforcement officer" in sections 8331(20) and 8401(17) of title 5, United States Code.

(3) Military offense - The term military offense means—

(A) - an offense for which—

(i) - a member of the Armed Forces may be discharged or separated from service in the Armed Forces; or

(ii) - a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial pursuant to chapter 14–12 of Army Regulation 635–200; or

(B) - an action for which a member of the Armed Forces received a demotion in military rank as punishment for a crime or wrongdoing, which was imposed by a court martial or other authority.

(4) Veteran - The term veteran has the meaning given such term in section 101(2) of title 38, United States Code.

119-S2163

Border Patrol Recruitment Enhancement Act