111th Congress
2d Session SENATE Report
111-338
_______________________________________________________________________
ANTI-BORDER CORRUPTION ACT OF 2010
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 3243
TO REQUIRE U.S. CUSTOMS AND BORDER PROTECTION TO ADMINISTER POLYGRAPH
EXAMINATIONS TO ALL APPLICANTS FOR LAW ENFORCEMENT POSITIONS WITH U.S.
CUSTOMS AND BORDER PROTECTION, TO REQUIRE U.S. CUSTOMS AND BORDER
PROTECTION TO COMPLETE ALL PERIODIC BACKGROUND REINVESTIGATIONS OF
CERTAIN LAW ENFORCEMENT PERSONNEL, AND FOR OTHER PURPOSES
September 29, 2010.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Blas Nunez-Neto, Professional Staff Member
Nicole M. Martinez, Legislative Aide
Donny R. Williams, Staff Director, Ad Hoc Subcommittee on State, Local,
and Private Sector Preparedness and Integration
Jason R. Bockenstedt, Professional Staff Member, Ad Hoc Subcommittee on
State, Local, and Private Sector Preparedness and Integration
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amanda Wood, Minority Director for Governmental Affairs
Matthew L. Hanna, Minority CBP Detailee
Ryan M. Tully, Minority Staff Director, Ad Hoc Subcommittee on State,
Local, and Private Sector Preparedness and Integration
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
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Page
I. Purpose and Summary..............................................1
II. Background and Need for Legislation..............................1
III. Legislative History..............................................3
IV. Section-by-Section Analysis......................................3
V. Evaluation of Regulatory Impact..................................4
VI. Congressional Budget Office Cost Estimate........................4
VII. Changes to Existing Law Made by the Bill, as Reported............6
111th Congress Report
SENATE
2d Session 111-338
======================================================================
ANTI-BORDER CORRUPTION ACT OF 2010
_______
September 29, 2010.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 3243]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 3243) to require
U.S. Customs and Border Protection to administer polygraph
examinations to all applicants for law enforcement positions
with U.S. Customs and Border Protection, to require U.S.
Customs and Border Protection to complete all periodic
background reinvestigations of certain law enforcement
personnel, and for other purposes, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill do pass.
I. PURPOSE AND SUMMARY
The purpose of S. 3243 is to strengthen the ability of U.S.
Custom and Border Protection (CBP) to evaluate the suitability
for employment of applicants and current law enforcement
employees. It would do so by requiring CBP to submit all
applicants to a polygraph examination prior to hiring them, and
by mandating that CBP clear its existing backlog of periodic
reinvestigations of current employees.
II. BACKGROUND AND NEED FOR LEGISLATION
According to the Department of Justice, Mexican drug
trafficking organizations (DTOs) constitute the greatest
organized crime threat to the United States.\1\ Mexican DTOs
supply illicit narcotics to 230 U.S. cities, and they utilize a
broad range of tactics to ensure the successful transport of
their narcotics. These tactics include bribery and intimidation
of U.S. law enforcement personnel, particularly those charged
with securing the border and interdicting contraband. As the
United States has increased enforcement activities along the
U.S. side of the border, the DTOs have increasingly begun to
target U.S. law enforcement personnel with bribes and other
inducements in order to facilitate moving drug loads across the
border.
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\1\``National Drug Threat Assessment 2009,'' National Drug
Intelligence Center, Department of Justice, December 2008, pp III.
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On March 11, 2010, the Subcommittee on State, Local, and
Private Sector Preparedness and Integration (SLPSPI) held a
hearing to examine the threat posed by the attempted corruption
of CBP law enforcement personnel by the DTOs. CBP testified
that the number of corruption investigations within the agency
has been increasing, and that the DTOs have been attempting to
infiltrate the agency by sending drug traffickers to take the
entrance examination.\2\ CBP believes that the most effective
way to screen new applicants is to administer a polygraph
examination. According to CBP, less than one percent of
applicants who are cleared by a polygraph examination
subsequently fail the required single scope background
investigation (SSBI), while roughly 22% of applicants who are
not subjected to polygraph investigations fail the SSBI.
Because SSBIs cost an average of $3,200, CBP believes that
expanding the use of polygraph examinations would cut down on
failed investigations and create a more streamlined and cost-
effective process for bringing new applicants on board.
Additionally, an internal CBP investigation revealed that
candidates who did not take a polygraph examination prior to
employment with CBP were more than twice as likely to have a
subsequent disciplinary record than those who were administered
a polygraph examination.\3\
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\2\Testimony of James F. Tomsheck, Assistant Commissioner, Office
of Internal Affairs, Customs and Border Protection, ``New Border War:
Corruption of U.S. Officials By Drug Cartels'', Hearing of the Senate
Homeland Security and Governmental Affairs Subcommittee on State,
Local, and Private Sector Preparedness and Integration; March 11, 2010.
\3\From telephone and email correspondence between Committee and
Subcommittee staff and Customs and Border Protection Office of
Congressional Affairs, September 13-21, 2010.
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Despite the benefits of polygraph examinations, the hearing
revealed, fewer than fifteen percent of applicants for CBP law
enforcement positions receive a polygraph examination during
the hiring process. CBP has stated that they want to administer
the exam to all applicants, but they have not been given the
resources necessary to accomplish this. Of those applicants who
do take a polygraph test, CBP finds 60 percent of them
ineligible for employment,\4\ primarily due to prior drug use
or a criminal history that the applicant had not previously
disclosed.\5\
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\4\Testimony of James F. Tomsheck, Assistant Commissioner, Office
of Internal Affairs, Customs and Border Protection, ``New Border War:
Corruption of U.S. Officials By Drug Cartels'', Hearing of the Senate
Homeland Security and Governmental Affairs Subcommittee on State,
Local, and Private Sector Preparedness and Integration; March 11, 2010.
\5\From Committee and Subcommittee staff discussions with Mr.
Tomsheck and Customs and Border Protection Office of Congressional
Affairs, July 15, 2010.
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The hearing also revealed that CBP has experienced a spike
in internal corruption cases in recent years. According to CBP,
this spike is largely due to the agency's swift growth. The
Border Patrol, for example, has seen its number of agents
double, from 10,045 in fiscal year (FY) 2002 to 20,119 in FY
2009.\6\ There have been 129 arrests of CBP officers and agents
since 2003, and 576 allegations of corruption in 2009 alone.
Between FY2005 and FY2010, cases of employee delinquency have
increased by 42%.\7\ Officials at the hearing also said that
CBP employees are required to undergo a periodic
reinvestigation every five years under DHS' authority to
reinvestigate law enforcement officers periodically.\8\
However, due to the hiring surge for the Border Patrol, which
required CBP to undertake an unprecedented number of SSBIs, CBP
Internal Affairs has been unable to keep up with the
reinvestigations it needs to fulfill this policy. The agency,
which currently has approximately 42,000 law enforcement
personnel, has a backlog of 10,000 reinvestigations. That
backlog is expected to rise to 19,000--45 percent of CBP's
total law enforcement positions--by year's end.\9\
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\6\From telephone and email correspondence between Committee and
Subcommittee staff and Customs and Border Protection Office of
Congressional Affairs, July 15, September 13-21, 2010.
\7\Employee delinquency cases include non-mission compromising
misconduct, mission-related misconduct, corruption, and mission-
compromising corruption. From email correspondence between Committee
staff and Customs and Border Protection Office of Congressional
Affairs, September 23, 2010.
\8\See 5 C.F.R. 731 and 732. Additionally, OPM is currently
revising 5 CFR 731 (per Executive Order 13488) to require a periodic
reinvestigation every five years for all high risk public trust
positions.
\9\From telephone and email correspondence between Committee and
Subcommittee staff and Customs and Border Protection Office of
Congressional Affairs, July 15, September 13-21, 2010.
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To provide a better and more efficient hiring process, S.
3243 would require CBP to give pre-employment polygraphs to all
new hires within two years of the bill's enactment. It would
also address the reinvestigation backlog by requiring CBP to
initiate all pending periodic background reinvestigations
within 180 days of enactment. The bill's original text required
CBP to eliminate the periodic reinvestigation backlog within
six months. However, in response to concerns expressed by DHS
regarding the inadequacy of resources to fulfill this
requirement, the Committee adopted an amendment to modify the
language to require that CBP initiate, rather than complete,
periodic reinvestigations within six months.
III. LEGISLATIVE HISTORY
S. 3243 was introduced on April 21, 2010, by Senator Mark
Pryor. The bill was read twice and referred to the Committee on
Homeland Security and Governmental Affairs. On July 28, 2010,
the Committee considered S. 3243. Senator Pryor offered an
amendment that adjusted the mandate that CBP initiate or
complete all pending periodic background reinvestigations for
CBP personnel within 180 days of enactment to require that CBP
merely initiate the pending investigations. The amendment was
adopted by voice vote. The Committee ordered the bill as
amended reported favorably by voice vote. Members present for
the vote on the Pryor amendment were Senators Lieberman, Levin,
Akaka, Carper, Pryor, Landrieu, McCaskill, Tester, Collins, and
McCain. Senators present for the vote on the bill as amended
were Senators Lieberman, Levin, Akaka, Carper, Pryor, Landrieu,
McCaskill, Tester, Kaufman, Collins, and McCain.
IV. SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This section designates the short title of the bill as the
``Anti-Border Corruption Act of 2010.''
Section 2. Findings
This section articulates the findings that CBP has not
adhered to its policy of mandatory pre-employment and periodic
background investigations due to a lack of resources, and that
these investigations are crucial in light of recent increases
in corruption investigations of CBP personnel.
Section 3. Requirements with respect to administering polygraph
examinations to law enforcement personnel of U.S. Customs and
Border Protection
This section mandates that within 2 years of enactment, CBP
subject all applicants for law enforcement positions in CBP to
polygraph examinations prior to hiring them. It also requires
that CBP initiate all pending periodic background
reinvestigations within 180 days of enactment.
Section 4. Progress report
This section requires the Secretary of Homeland Security to
report to Congress every 180 days for the two years following
enactment of the bill on the progress made by CBP in complying
with the mandates in section 3 of the bill.
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 bill. The
Congressional Budget Office states that the bill contains no
intergovernmental or private sector mandates as defined in the
Unfunded Mandate Reform Act and would not effect state, local,
and tribal governments. The enactment of this legislation will
not have significant regulatory impact.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
September 28, 2010.
Hon. Joseph I. Lieberman,
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. 3243, the Anti-
Border Corruption Act of 2010.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 3243--Anti-Border Corruption Act of 2010
Summary: S. 3243 would require U.S. Customs and Border
Protection (CBP), within two years of the bill's enactment, to
administer polygraph examinations to all applicants for law
enforcement positions before those individuals are hired. The
bill also would direct CBP, within 180 days of enactment, to
initiate background reinvestigations for all law enforcement
personnel who are currently scheduled to undergo such reviews.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing the bill would cost $19 million
over the 2011-2015 period. Enacting the bill would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
S. 3243 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.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 3243 is shown in the following table.
The costs of this legislation fall within budget function 750
(administration of justice).
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By fiscal year, in millions of dollars--
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2011 2012 2013 2014 2015 2011-2015
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................ 10 0 3 3 3 19
Estimated Outlays............................................ 10 0 3 3 3 19
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Basis of estimate: For the purposes of this estimate, CBO
assumes that S. 3243 will be enacted in 2010. CBO assumes that
the estimated amounts will be appropriated near the start of
each fiscal year and that outlays will follow the historical
rate of spending for those activities. Under the bill, CBP
would administer polygraph examinations to all applicants for
law enforcement positions before those individuals are hired
starting in fiscal year 2013.
Costs for background reinvestigations
CBP law enforcement personnel are required to undergo
background reinvestigations every five years. Each year,
reinvestigations are scheduled for the cohort of law
enforcement officers hired five years before. Those
investigations have not been conducted as scheduled, however,
and a backlog has developed.
CBP expects to have a backlog of about 3,000
reinvestigations at the beginning of fiscal year 2011. In
addition, about 4,800 reinvestigations will be required during
the first 180 days of fiscal year 2011. To meet the bill's
requirements, CBP would have to initiate about 7,800
reinvestigations within 180 days of the bill's enactment.
Under current law, CBP anticipates initiating only about
4,800 reviews within that time period. Thus, we estimate that
implementing S. 3243 would require CBP to initiate an
additional 3,000 reinvestigations in 2011. According to CBP,
the cost of each reinvestigation is about $3,200; CBO estimates
that implementing this provision would cost about $10 million
in fiscal year 2011, assuming appropriation of the necessary
funds.
Costs for polygraph examinations
Under current law, CBP does not administer polygraph
examinations to all applicants for law enforcement positions;
in 2011, the agency expects to administer polygraphs to about
40 percent of the individuals hired for those positions. CBP
plans to hire about 2,000 law enforcement officers in each of
fiscal years 2013 through 2015. Thus, CBO expects that about
800 polygraphs will be administered in each of those years
under current practice. S. 3243 would require CBP to administer
polygraph examinations to all applicants for law enforcement
positions before those individuals are hired. Because not all
applicants would be hired, CBP anticipates that it would meet
the bill's requirement by administering polygraphs to about
4,000 individuals annually over the 2013-2015 period. Thus, CBO
expects that implementing the bill would require the agency to
administer polygraphs to an additional 3,200 persons annually
beginning in 2013.
Based on information from CBP, CBO estimates that each
polygraph examination would cost about $850 in 2013. Thus,
implementing this provision would cost nearly $3 million
annually over the 2013-2015 period, assuming appropriation of
the necessary funds.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: S. 3243
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Mark Grabowicz; Impact
on State, Local, and Tribal Governments: Melissa Merrell;
Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
VII. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED
S. 3243 does not make any changes to existing law.
