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                                                      Calendar No. 447
115th Congress       }                                   {      Report
                                 SENATE
 2d Session          }                                   {     115-270
_______________________________________________________________________

                                     


  U.S. CUSTOMS AND BORDER PROTECTION HIRING AND RETENTION ACT OF 2017

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1305

TO PROVIDE U.S. CUSTOMS AND BORDER PROTECTION WITH ADEQUATE FLEXIBILITY 
                     IN ITS EMPLOYMENT AUTHORITIES
















[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




















                  June 7, 2018.--Ordered to be printed
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

79-010                         WASHINGTON : 2018                   
                 
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
    Courtney J. Allen, Deputy Chief Counsel for Governmental Affairs
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
       Charles A. Moskowitz, Minority Senior Legislative Counsel
        Thomas J.R. Richards, Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk























                                                      Calendar No. 447
115th Congress       }                                   {      Report
                                 SENATE
 2d Session          }                                   {     115-270

======================================================================



 
  U.S. CUSTOMS AND BORDER PROTECTION HIRING AND RETENTION ACT OF 2017

                                _______
                                

                  June 7, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 1305]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1305) to provide 
U.S. Customs and Border Protection with adequate flexibility in 
its employment authorities, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................6
 IV. Section-by-Section Analysis......................................6
  V. Evaluation of Regulatory Impact..................................8
 VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Bill, as Reported............9

                         I. Purpose and Summary

    The purpose of S. 1305, the U.S. Customs and Border 
Protection Hiring and Retention Act, or CBP HiRe Act, is to 
provide the U.S. Customs and Border Protection (CBP) with 
sufficient hiring and pay flexibilities to help it recruit and 
retain employees in rural or remote areas.

              II. Background and the Need for Legislation

    CBP is the nation's border security enforcement agency that 
ensures individuals and cargo entering the United States 
complies with agricultural, criminal, immigration, and trade 
laws.\1\ CBP maintains a workforce of over 60,000 employees,\2\ 
including officers stationed at 328 land, air, and sea ports of 
entry.\3\ Since President Trump took office in January 2017, 
there have been a number of initiatives to increase the number 
of CBP agents and officers, including Executive Order 13767, 
issued on January 25, 2017, which directed CBP to hire 5,000 
additional Border Patrol officers.\4\
---------------------------------------------------------------------------
    \1\U.S. Customs and Border Protection, About CBP, available at 
https://www.cbp.gov/about.
    \2\Id.
    \3\U.S. Customs and Border Protection, Border Security at Ports of 
Entry, available at https://www.cbp.gov/border-security/ports-entry.
    \4\Exec. Order. No. 13767, 82 Fed. Reg. 8793, 8795 (2017).
---------------------------------------------------------------------------
    To fulfill the requirements of the Executive Order, the 
Office of Personnel Management (OPM) authorized CBP to exercise 
direct hire authority for ``8,721 personnel to fill mission 
critical positions at various grade levels at all geographic 
locations along the Southern Border as well as Florida and 
Caribbean duty stations.''\5\ Direct hire authority allows 
agencies to hire individuals outside of the normal competitive 
service process if there is a severe shortage of qualified 
candidates or if there is a critical hiring need for a 
position.\6\ Agencies must obtain approval from OPM to exercise 
direct hire authority.\7\ The direct hire authority authorized 
by OPM for CBP hiring on the southern border expires on April 
5, 2019.\8\
---------------------------------------------------------------------------
    \5\U.S. Dep't of Homeland Security Off. of Inspector General, OIG-
17-98-SR, Special Report: Challenges Facing DHS in its Attempt to Hire 
15,000 Border Patrol Agent and Immigration Officers 2 (July 27, 2017), 
available at https://www.oig.dhs.gov/sites/default/files/assets/2017/
OIG-17-98-SR-Jul17.pdf.
    \6\5 C.F.R. Sec. 337.201
    \7\Id.
    \8\U.S. Dep't of Homeland Security Off. of Inspector General, supra 
note 5.
---------------------------------------------------------------------------
    Nevertheless, CBP struggles to maintain adequate staffing 
levels, particularly in remote locations.\9\ To incentivize 
individuals to work in remote locations, CBP has sometimes used 
recruitment, relocation, and retention bonuses.\10\ Under 
current law, OPM can approve an agency to offer a recruitment 
or a relocation bonus if a position ``is likely to be difficult 
to fill in the absence of such a bonus.''\11\ OPM may approve a 
retention bonus if:
---------------------------------------------------------------------------
    \9\Improving Pay Flexibilities in the Federal Workforce: Hearing 
Before the S. Subcomm. on Regulatory Affairs and Fed. Mgmt of the S. 
Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. 114-139 
(2015) (statement of Linda Jacksta, Assistant Commissioner, Office of 
Human Resources Management, U.S. Customs and Border Protection).
    \10\Id.
    \11\5 U.S.C. Sec. 5753(b)(1).

        the unusually high or unique qualifications of the 
        employee or a special need of the agency for the 
        employee's services makes it essential to retain the 
        employee; and the agency determines that, in the 
        absence of a retention bonus, the employee would be 
        likely to leave the Federal service or for a different 
        position in the Federal service.\12\
---------------------------------------------------------------------------
    \12\5 U.S.C. Sec. 5754(b).

    If the agency requests to award retention bonuses because 
an employee is likely to leave for a different position in the 
Federal service, the agency must demonstrate ``a special need 
for the employee's services that makes it essential to retain 
the employee in his or her current position during a period of 
time before the closure or relocation of the employee's office, 
facility, activity, or organization.''\13\ Recruitment, 
relocation, and retention bonuses cannot exceed 25 percent of 
an employee's basic pay for the service period associated with 
the bonus.\14\ Retention bonuses cannot exceed 10 percent of 
basic pay if the bonus is awarded to a group of employees.\15\ 
Agencies can only offer retention bonuses to employees with a 
performance appraisal rating of at least ``fully successful'' 
or its equivalent.\16\
---------------------------------------------------------------------------
    \13\5 C.F.R Sec. 575.314(a)(1)(i).
    \14\5 U.S.C. Sec. 5753(d); 5 U.S.C. 5754(e)(1)(A).
    \15\5 U.S.C. Sec. 5754(e)(1)(B).
    \16\5 C.F.R. Sec. 575.305(d).

    Despite use of these incentives, CBP continues to have 
difficulty retaining employees in remote locations.\17\ In a 
2015 hearing before the Committee's Subcommittee on Regulatory 
Affairs and Federal Management, Linda Jacksta, Assistant 
Commissioner in the CBP Office of Human Resources Management, 
testified that many CBP areas of responsibility are in remote 
locations.\18\ Ms. Jacksta explained:
---------------------------------------------------------------------------
    \17\Improving Pay Flexibilities in the Federal Workforce, supra 
note
    \18\Id.

          CBP faces additional challenges in staffing hard-to-
        fill and remote locations. For the purposes of this 
        testimony, I have characterized hard-to-fill and remote 
        locations as being a significant distance from 
        amenities and services such as medical care, child care 
        and schools, and employment options for spouses. 
        Geographically remote locations are often accompanied 
        by challenging environmental factors, such as harsh 
        weather conditions. Difficulty in staffing these 
        locations may also be impacted by a lack of affordable 
        housing choices, consumer goods and services, and local 
        infrastructure. In addition, both hard-to-fill and 
        geographically remote locations are sometimes 
        associated with a higher cost of living. The challenges 
        CBP faces regarding hard-to-fill and remote locations 
        include a limited pool of qualified and suitable 
        candidates interested in working and residing in these 
        localities. This is compounded by funding and 
        regulatory limitations, which limit our efforts to 
        incentivize individuals to apply for, relocate to, or 
---------------------------------------------------------------------------
        remain at these locations.

    For example, one regulatory limitation for retention 
bonuses prohibits CBP from giving such a bonus to an employee 
who is likely to transfer to another location within CBP since 
the employee is not leaving Federal service.\19\ The 25 percent 
cap may also not be meaningful enough to incentivize employees 
to work in its remote locations.\20\
---------------------------------------------------------------------------
    \19\Id.
    \20\Id.
---------------------------------------------------------------------------
    Ms. Jacksta added that ``[s]taffing these locations, both 
with new hires and existing, experienced personnel, is critical 
to meeting the operational requirements involved with securing 
the Nation's border against a variety of different threats and 
adversaries.''\21\
---------------------------------------------------------------------------
    \21\Id.
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    To further address staffing challenges in remote locations, 
CBP can also seek to offer special salary rates.\22\ OPM can 
authorize agencies to offer an increased minimum salary rate 
for a category of employees ``whenever [OPM] finds that the 
Government's recruitment or retention efforts with respect to 
[one] or more occupations in [one] or more areas or locations 
are, or are likely to become, significantly handicapped due to 
[certain] circumstances.''\23\ The circumstances under which 
OPM can authorize special salary rates are:

    \22\Improving Pay Flexibilities in the Federal Workforce, supra 
note 9.
    \23\5 U.S.C. Sec. 5305. See also 5 C.F.R. Sec. 530.304.
---------------------------------------------------------------------------
        rates of pay offered by non-Federal employers being 
        significantly higher than those payable by the 
        Government within the area, location, occupational 
        group, or other class of positions under the pay system 
        involved; the remoteness of the area or location 
        involved; the undesirability of the working conditions 
        or the nature of the work involved. . . .; or any other 
        circumstances which the [OPM] . . . considers 
        appropriate.

    While the special salary rate is available to request from 
OPM, the request and approval process can be lengthy.\24\ 
Brenda Roberts, Deputy Associate Director for Pay and Leave in 
OPM's Office of Employee Services, explained to the 
Subcommittee that ``[b]efore deciding whether to approve an 
agency's request, OPM coordinates with other agencies that 
employ people in similar occupations or in the same geographic 
area to ensure that increasing pay for one group of employees 
will not create competition among agencies with similarly 
situated workforces.''\25\ According to CBP, the OPM approval 
process for special salary rates for polygraph examiners was 
over two years, and the process for CBP employees stationed in 
Pembina, North Dakota, took more than one year.\26\
---------------------------------------------------------------------------
    \24\Telephone conversation between U.S. Customs and Border 
Protection representative and Committee staff (Sept. 25, 2017).
    \25\Improving Pay Flexibilities in the Federal Workforce, supra 
note 9 (statement of Brenda Roberts, Deputy Associate Director, Pay and 
Leave, Employee Services, U.S. Office of Personnel Management).
    \26\Telephone conversation between U.S. Customs and Border 
Protection representative and Committee staff (Sept. 25, 2017).
---------------------------------------------------------------------------
    According to CBP, another challenge in onboarding CBP 
employees in a timely manner is the polygraph examination 
process.\27\ In 2010, Congress passed the Anti-Border 
Corruption Act, which requires ``all job applicants for law 
enforcement positions at [CBP] to receive a polygraph 
examination and a background investigation before being offered 
employment.''\28\ Although most Federal law enforcement 
officers, including the Federal Bureau of Investigations, the 
U.S. Secret Service, the Drug Enforcement Administration, the 
U.S. Postal Inspection Service, and U.S. Marshal Service, among 
others, as well as many state and local law enforcement agency 
applicants undergo polygraph examinations during the hiring 
process as a matter of policy, the Act made CBP the only 
Federal law enforcement agency with a statutory requirement 
that all law enforcement applicants undergo a polygraph 
examination.\29\ According to CBP and CBP union officials, the 
polygraph examination is a primary obstacle in hiring CBP 
officers,\30\ According to Border Patrol Agent Jon Anfinsen, 
``the Border Patrol is failing approximately two out of every 
three applicants, which is double the rate most law enforcement 
agencies see. There is clearly a problem with how we are 
administering the polygraph. . . . Ironically, many of these 
applicants later get hired by state, local, or other federal 
law enforcement agencies, sometimes passing another 
polygraph.''\31\ It is unclear what is causing the unusually 
high failure rate among CBP applicants.
---------------------------------------------------------------------------
    \27\Keeping Pace with Trade, Travel, and Security: How Does CBP 
Prioritize and Improve Staffing and Infrastructure?: Hearing Before the 
Subcomm. on Border and Maritime Security of the H. Comm. on Homeland 
Sec., 114th Cong. (2016) (joint statement of Eugene Schied, Assistant 
Commissioner, Office of Admin., U.S. Customs and Border Protection, 
Linda Jacksta, Assistant Commissioner, Office of Human Resources Mgmt., 
U.S. Customs and Border Protection, and John Wagner, Deputy Assistant 
Commissioner, Office of Field Operations, U.S. Customs and Border 
Protection).
    \28\Anti-Border Corruption Act of 2010, Pub. L. No. 111-376, 
Sec. 2, 123 Stat. 4104 (Jan. 4, 2011).
    \29\Keeping Pace with Trade, Travel, and Security, supra note 27 
(testimony of Linda Jacksta, Assistant Commissioner, Office of Human 
Resources Mgmt., U.S. Customs and Border Protection).
    \30\Id.
    \31\On the Line: Border Security From an Agent and Officer 
Perspective: Hearing Before the Subcomm. on Border and Maritime 
Security of the H. Comm. on Homeland Sec., 115th Cong. (2018) 
(statement of Jon Anfinsen, President of Local 2366, National Border 
Patrol Council.) See also Associated Press, Two out of three Border 
Patrol job applicants fail polygraph test, making hiring difficult, Los 
Angeles Times, Jan. 13, 2017, available at http://www.latimes.com/
local/lanow/la-me-border-patrol-lies-20170113-story.html; Tim Steller, 
New polygraph exam could be Border Patrol solution, Arizona Daily Star, 
Apr. 15, 2017, available at http://tucson.com/news/local/columnists/
steller/steller-new-polygraph-exam-could-be-border-patrol-solution/
article_ 51a239cc-0ba2-5552-acbc-226aa51de346.html.
---------------------------------------------------------------------------
    While failing a polygraph examination as a CBP applicant 
does not prohibit an individual from applying for a position at 
different Federal law enforcement agencies, these agencies can 
learn of the polygraph examination results by requesting the 
status of the individual's application process with CBP.\32\ 
With the reputation for high polygraph examination failure 
rates, CBP's release of examination results with other Federal 
law enforcement agencies may also be deterring individuals from 
applying for positions with CBP.
---------------------------------------------------------------------------
    \32\U.S. Customs and Border Protection, Polygraph Exam FAQS, 
available at https://www.cbp.gov/careers/car/poly.
---------------------------------------------------------------------------
    This bill would provide DHS with hiring and pay resources 
to recruit and maintain CBP staff in rural or remote locations 
experiencing hiring and retention challenges due to the nature 
of the locations. For these locations, DHS would be able to 
directly hire CBP applicants in order to expedite the 
onboarding process and offer a special salary rate for 
employment. DHS would also be authorized to issue recruitment, 
relocation, and retention bonuses to CBP applicants and 
employees serving in these rural or remote locations. CBP is 
required under this bill to report to Congress and to OPM on 
the effectiveness of these authorities on hiring and retention 
in rural or remote locations. The DHS OIG is also required to 
review the use of the hiring and pay authorities provided in 
this bill. These hiring and pay authorities will expire five 
years after enactment of this bill.
    This bill also provides additional tools to facilitate 
hiring and retention at CBP. DHS is required under this bill to 
implement a hiring strategy and educational outreach program to 
inform CBP human resources officials of the available hiring 
authorities, incentives, and other tools to improve hiring and 
retention in rural or remote locations.
    Finally, this bill will require CBP to report on the number 
of requests from other Federal agencies for the polygraph 
examination results of CBP applicants.

                        III. Legislative History

    S. 1305, the U.S. Customs and Border Protection Hiring and 
Retention Act, was introduced on June 7, 2017, by Senators Jeff 
Flake and Heidi Heitkamp. The bill was referred to the 
Committee on Homeland Security and Governmental Affairs. The 
Committee considered S. 1305 at a business meeting on October 
4, 2017.
    During the business meeting, Senator Heitkamp offered a 
modified substitute amendment that changed the definition for 
rural or remote areas, changed requirements regarding polygraph 
examinations, and incorporated technical assistance from 
relevant Federal agencies. The Committee adopted the amendment 
by voice vote and ordered the bill, as amended, reported 
favorably by voice vote en bloc with Senators Johnson, 
Lankford, Daines, McCaskill, Tester, Heitkamp, Hassan, and 
Harris present. Senator Harris voted ``no'' for the record.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section establishes the short title of the bill as the 
U.S. Customs and Border Protection Hiring and Retention Act of 
2017, or the CBP HiRe Act.

Section 2. Flexibility in employment authorities

    This section creates a new section 9702 in Title 5, United 
States Code, which would allow DHS to exercise certain pay and 
hiring authorities for CBP employees located in rural or remote 
areas.
    Subsection (a) defines the terms ``CBP employee'', 
``Commissioner'', ``Director'', ``rural or remote area'', and 
``Secretary''.
    Subsection (b) requires the DHS Secretary to determine 
which CBP positions in rural or remote areas are eligible for 
the pay and hiring authorities provided under this bill. For 
eligibility, the Secretary must determine that there is a 
critical hiring need in the area and there is a direct 
relationship between the rural or remote nature of the area and 
difficulty in recruiting and retaining CBP employees in the 
area.
    Subsection (c) allows the Secretary to use direct hire 
authority for CBP positions determined to be eligible under 
subsection (b). The direct hire authority may be used if the 
Secretary determines there is a critical hiring need and a 
severe shortage of qualified candidates in the area due to the 
direct relationship between the rural and remote nature of the 
area and difficulty in recruiting and retaining CBP employees 
in the area. Positions filled using this direct hire authority 
must be made public.
    The Secretary may also provide recruitment, relocation, and 
retention bonuses under this subsection if the Secretary 
determines the CBP positions to be eligible under subsection 
(b). CBP employees accepting a recruitment or relocation bonus 
must enter into a written agreement of employment at the CBP 
position for at least two years. The amount of a recruitment or 
relocation bonus may not exceed 100 percent of the annual rate 
of basic pay of the CBP employee as of the beginning of the 
agreed-upon employment period. To provide a retention bonus, 
the Secretary must determine that, in the absence of a 
retention bonus, the CBP employee would likely leave Federal 
service or transfer to a different position in the Federal 
service, including to a different DHS component. CBP employees 
receiving a retention bonus must enter into a written agreement 
of employment in that position for at least two years. The 
amount of a retention bonus may not exceed 50 percent of the 
annual rate of basic pay of the CBP employee as of the 
beginning of the agreed-upon employment period. Bonuses paid 
under this subsection are not considered part of a CBP 
employee's basic pay for any purpose.
    Subsection (d) allows the OPM Director to establish special 
rates of pay for CBP employees upon a finding that the 
Secretary's recruitment or retention efforts in rural or remote 
areas are, or are likely to become, significantly handicapped 
because of the direct relationship determined by the Secretary 
in subsection (b).
    Subsection (e) requires the Secretary to annually review 
the use of the authorities provided under this bill to 
determine the impact of these authorities in addressing hiring 
and retention challenges in the rural or remote CBP locations, 
whether these challenges still exist, and whether these 
locations still necessitate these hiring and pay flexibilities. 
This review must consider whether any CBP employee accepted a 
bonus or special pay rate and then transferred to another CBP 
location or resigned from CBP and the length of time such an 
employee stayed at the rural or remote location before 
transferring or resigning. Each review conducted under this 
section must be submitted to Congress.
    Subsection (f) requires the Secretary, in conjunction with 
the DHS Chief Human Capital Officer, to develop and implement a 
strategy to improve education on hiring and human resources 
flexibilities for all DHS employees involved in recruiting, 
hiring, assessing, or selecting candidates for positions 
located in a rural or remote area. This strategy will include 
training and educational materials on these flexibilities; 
regular training sessions for personnel responsible for filling 
open positions in these areas; pilot or other programs to 
address hiring challenges in these areas; strategic recruiting 
efforts; an examination of existing spousal and family 
assistance programs for employees in these locations; feedback 
from employees stationed or newly hired to positions in these 
areas; and an evaluation of DHS internship programs' role in 
filling open position in these locations. The Secretary must 
implement this strategy within 180 days of enactment of this 
bill and annually evaluate the effectiveness of this strategy 
improving hiring and retention in rural or remote areas.
    Subsection (g) requires the DHS Inspector General to review 
the use of the direct hire authority, bonuses, and special pay 
rate authority authorized by this bill to determine whether 
these flexibilities helped meet hiring and retention needs in 
rural or remote areas.
    Subsection (h) requires the Secretary to submit a report to 
Congress on the number of requests the Secretary receives from 
any other Federal agency for the file of an applicant for a CBP 
position that includes a polygraph examination.
    Subsection (i) clarifies that the exercise of authority 
under subsection (c) is subject to the sole and exclusive 
discretion of the Secretary or CBP Commissioner. The Secretary 
may delegate any authority provided under this bill to the CBP 
Commissioner. Any determination made under subsection (b) must 
be approved by the Secretary.
    Subsection (j) clarifies that nothing in this bill may be 
construed to exempt the Secretary or the OPM Director from the 
merit system principles when carrying out the authorities 
provided under this bill.
    Subsection (k) establishes a sunset date for the hiring and 
pay authorities under subsections (c) and (d) that is five 
years after enactment of this 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 and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill 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.

             VI. Congressional Budget Office Cost Estimate

                                                      June 1, 2018.
Hon. Ron Johnson,
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. 1305, the CBP HiRe 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 1305--CBP HiRe Act

    S. 1305 would authorize Customs and Border Protection (CBP) 
in the Department of Homeland Security to offer bonus pay to 
individuals who agree to fill certain job openings in remote 
locations or to remain in such positions; this authority would 
expire five years after the bills enactment. CBP can pay such 
bonuses under current law with prior approval from the Office 
of Personnel Management.
    Under current law, CBP anticipates offering bonuses to 
hundreds of current or prospective employees during each of the 
next several years. CBO expects the agency to spend tens of 
millions of dollars on bonuses over that time period. On that 
basis CBO estimates that any additional costs resulting from 
enacting S. 1305 would be insignificant.
    Enacting S. 1305 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting S. 1305 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    S. 1305 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *


PART III--EMPLOYEES

           *       *       *       *       *       *       *



Subpart I--Miscellaneous

           *       *       *       *       *       *       *



CHAPTER 97--DEPARTMENT OF HOMELAND SECURITY

           *       *       *       *       *       *       *


Table of Sections.
Sec.
9701. Establishment of human resources management system.
9702. U.S. Customs and Border Protection employment authorities.
     * * * * * * * *

SEC. 9702. U.S. CUSTOMS AND BORDER PROTECTION EMPLOYMENT AUTHORITIES.

    (a) Definitions.--In this section--
          (1) the term ``CBP employee'' means an employee of 
        U.S. Customs and Border Protection;
          (2) the term ``Commissioner'' means the Commissioner 
        of U.S. Customs and Border Protection;
          (3) the term ``Director'' means the Director of the 
        Office of Personnel Management;
          (4) the term ``rural or remote area'' means an area 
        within the United States that is not within an area 
        defined and designated as an urbanized area by the 
        Bureau of the Census in the most recently completed 
        decennial census; and
          (5) the term ``Secretary'' means the Secretary of 
        Homeland Security.
    (b) Demonstration of Recruitment and Retention Difficulties 
in Rural or Remote Areas.--
          (1) In general.--For purposes of subsections (c) and 
        (d), the Secretary shall determine, for a rural or 
        remote area, whether there is--
                  (A) a critical hiring need in the area; and
                  (B) a direct relationship between--
                          (i) the rural or remote nature of the 
                        area; and
                          (ii) difficulty in the recruitment 
                        and retention of CBP employees in the 
                        area.
          (2) Factors.--To inform the determination of a direct 
        relationship under paragraph (1)(B), the Secretary may 
        consider evidence--
                  (A) that the Secretary--
                                  (i) is unable to efficiently 
                                and effectively recruit 
                                individuals for positions as 
                                CBP employees, which may be 
                                demonstrated with various types 
                                of evidence, including--
                                  (I) evidence that multiple 
                                positions have been 
                                continuously vacant for 
                                significantly longer than the 
                                national average period for 
                                which similar positions in the 
                                U.S. Customs and Border 
                                Protection are vacant; and
                                  (II) recruitment studies that 
                                demonstrate the inability of 
                                the Secretary to efficiently 
                                and effectively recruit CBP 
                                employees for positions in the 
                                area; or
                          (ii) experiences a consistent 
                        inability to retain CBP employees that 
                        negatively impacts agency operations at 
                        a local or regional level; or
                  (B) of any other inability, directly related 
                to recruitment or retention difficulties, that 
                the Secretary determines sufficient.
    (c) Direct Hire Authority; Recruitment and Relocation 
Bonuses; Retention Bonuses.--
          (1) Direct hire authority.--
                  (A) In general.--The Secretary may appoint, 
                without regard to any provision or sections 
                3309 through 3319, candidates to positions in 
                the competitive service as CBP employees, in a 
                rural or remote area, if the Secretary--
                          (i) determines that--
                                  (I) there is a critical 
                                hiring need; and
                                  (II) there exists a severe 
                                shortage of qualified 
                                candidates because of the 
                                direct relationship identified 
                                by the Secretary under 
                                subsection (b)(1)(B) of this 
                                section between--
                                          (aa) the rural or 
                                        remote nature of the 
                                        area; and
                                          (bb) difficulty in 
                                        the recruitment and 
                                        retention of CBP 
                                        employees in the area; 
                                        and
                          (ii) has given public notice for the 
                        positions.
                  (B) Prioritization of hiring veterans.--If 
                the Secretary uses the direct hiring authority 
                under subparagraph (A), the Secretary shall 
                apply the principles of preference for the 
                hiring of veterans established under subchapter 
                I of chapter 33.
          (2) Recruitment and relocation bonuses.--The 
        Secretary may pay a bonus to an individual (other than 
        an individual described in subsection (a)(2) of section 
        5723) if--
                  (A) the Secretary determines that--
                          (i) conditions consistent with the 
                        conditions described in paragraphs (1) 
                        and (2) of subsection (b) of such 
                        section 5753 are satisfied with respect 
                        to the individual (without regard to 
                        any other provision of that section); 
                        and
                          (ii) the position to which the 
                        individual is appointed or to which the 
                        individual moves or must relocate--
                                  (I) is a position as a CBP 
                                employee; and
                                  (II) is in a rural or remote 
                                area for which the Secretary 
                                has identified a direct 
                                relationship under subsection 
                                (b)(1)(B) of this section 
                                between--
                                          (aa) the rural or 
                                        remote nature of the 
                                        area; and
                                          (bb) difficulty in 
                                        the recruitment and 
                                        retention of CBP 
                                        employees in the area; 
                                        and
                  (B) the individual enters into a written 
                service agreement with the Secretary--
                          (i) under which the individual is 
                        required to complete a period of 
                        employment as a CBP employee of not 
                        less than 2 years; and
                          (ii) that includes--
                                  (I) the commencement and 
                                termination dates of the 
                                required service period (or 
                                provisions for the 
                                determination thereof);
                                  (II) the amount of the bonus; 
                                and
                                  (III) other terms and 
                                conditions under which the 
                                bonus is payable, subject to 
                                the requirements of this 
                                subsection, including--
                                          (aa) the conditions 
                                        under which the 
                                        agreement may be 
                                        terminated before the 
                                        agreed-upon service 
                                        period has been 
                                        completed; and
                                          (bb) the effect of a 
                                        termination described 
                                        in item (aa).
          (3) Retention bonuses.--The Secretary may pay a 
        retention bonus to a CBP employee (other than an 
        individual described in subsection (a)(2) of section 
        5754) if--
                  (A) the Secretary determines that--
                          (i) a condition consistent with the 
                        condition described in subsection 
                        (b)(1) of such section 5754 is 
                        satisfied with respect to the CBP 
                        employee (without regard to any other 
                        provision of that section);
                          (ii) the CBP employee is employed in 
                        a rural or remote area for which the 
                        Secretary has identified a direct 
                        relationship under subsection (b)(1)(B) 
                        of this section between--
                                  (I) the rural or remote 
                                nature of the area; and
                                  (II) difficulty in the 
                                recruitment and retention of 
                                CBP employees in the area; and
                          (iii) in the absence of a retention 
                        bonus, the CBP employee would be likely 
                        to leave--
                                  (I) the Federal service; or
                                  (II) for a different position 
                                in the Federal service, 
                                including a position in another 
                                agency or component of the 
                                Department of Homeland 
                                Security; and
                  (B) the individual enters into a written 
                service agreement with the Secretary--
                          (i) under which the individual is 
                        required to complete a period of 
                        employment as a CBP employee of not 
                        less than 2 years; and
                          (ii) that includes--
                                  (I) the commencement and 
                                termination dates of the 
                                required service period (or 
                                provisions for the 
                                determination thereof);
                                  (II) the amount of the bonus; 
                                and
                                  (III) other terms and 
                                conditions under which the 
                                bonus is payable, subject to 
                                the requirements of this 
                                subsection, including--
                                          (aa) the conditions 
                                        under which the 
                                        agreement may be 
                                        terminated before the 
                                        agreed-upon service 
                                        period has been 
                                        completed; and
                                          (bb) the effect of a 
                                        termination described 
                                        in item (aa).
          (4) Rules for bonuses.--
                  (A) Maximum bonus.--A bonus paid to an 
                employee under--
                          (i) paragraph (2) may not exceed 100 
                        percent of the annual rate of basic pay 
                        of the employee as of the commencement 
                        date of the applicable service period; 
                        and
                          (ii) paragraph (3) may not exceed 50 
                        percent of the annual rate of basic pay 
                        of the employee as of the commencement 
                        date of the applicable service period.
                  (B) Relation to basic pay.--A bonus paid to 
                an employee under paragraph (2) or (3) shall 
                not be considered part of the basic pay of the 
                employee for any purpose.
          (5) OPM oversight.--The Director shall, to the extent 
        practicable--
                  (A) set aside a determination of the 
                Secretary under this subsection if the Director 
                finds substantial evidence that the Secretary 
                abused the discretion of the Secretary in 
                making the determination; and
                  (B) oversee the compliance of the Secretary 
                with this subsection.
    (d) Special Pay Authority.--In addition to the 
circumstances described in subsection (b) of section 5305, the 
Director may establish special rates of pay in accordance with 
that section if the Director finds that the recruitment or 
retention efforts of the Secretary with respect to positions 
for CBP employees in an area or location are, or are likely to 
become, significantly handicapped because the positions are 
located in a rural or remote area for which the Secretary has 
identified a direct relationship under subsection (b)(1)(B) of 
this section between--
          (1) the rural or remote nature of the area; and
          (2) difficulty in the recruitment and retention of 
        CBP employees in the area.
    (e) Regular CBP Review.--
          (1) Ensuring flexibilities meet CBP needs.--Each 
        year, the Secretary shall review the use of hiring 
        flexibilities under subsections (c) and (d) to fill 
        positions at a location in a rural or remote area to 
        determine--
                  (A) the impact of the use of those 
                flexibilities on solving hiring and retention 
                challenges at the location;
                  (B) whether hiring and retention challenges 
                still exist at the location; and
                  (C) whether the Secretary needs to continue 
                to use those flexibilities at the location.
          (2) Consideration.--In conducting the review under 
        paragraph (1), the Secretary shall consider--
                  (A) whether any CBP employee accepted an 
                employment incentives under subsection (c) or 
                (d) and then transferred to a new location or 
                left U.S. Customs and Border protection; and
                  (B) the length of time that each employee 
                identified under subparagraph (A) stayed at the 
                original location before transferring to a new 
                location or leaving U.S. Customs and Border 
                Protection.
          (3) Distribution.--The Secretary shall submit to 
        Congress a report on each review required under 
        paragraph (1).
    (f) Improving CBP Hiring and Retention.--
          (1) Education of CBP hiring officials.--Not later 
        than 180 days after the date of enactment of the U.S. 
        Customs and Border Protection Hiring and Retention Act 
        of 2017, and in conjunction with the Chief Human 
        Capital Officer of the Department of Homeland Security, 
        the Secretary shall develop and implement a strategy to 
        improve education regarding hiring and human resources 
        flexibilities (including hiring and human resources 
        flexibilities for locations in rural or remote areas) 
        for all employees, serving in agency headquarters or 
        field offices, who are involved in the recruitment, 
        hiring, assessment, or selection of candidates for 
        locations in a rural or remote area, as well as the 
        retention of current employees.
          (2) Elements.--Elements of the strategy under 
        paragraph (1) shall include the following:
                  (A) Developing or updating training and 
                educational materials on hiring and human 
                resources flexibilities for employees who are 
                involved in the recruitment, hiring, 
                assessment, or selection of candidates, as well 
                as the retention of current employees.
                  (B) Regular training sessions for personnel 
                who are critical to filling open positions in 
                rural or remote areas.
                  (C) The development of pilot programs or 
                other programs, as appropriate, to address 
                identified hiring challenges in rural or remote 
                areas.
                  (D) Developing and enhancing strategic 
                recruiting efforts through relationships with 
                institutions of higher education, as defined in 
                section 102 of the Higher Education Act of 1965 
                (20 U.S.C. 1002), veterans transition and 
                employment centers, and job placement program 
                in regions that could assist in filling 
                positions in rural or remote areas.
                  (E) Examination of existing agency programs 
                on how to most effectively aid spouses and 
                families of individuals who are candidates or 
                new hires in a rural or remote area.
                  (F) Feedback from individuals who are 
                candidates or new hires at locations in a rural 
                or remote area, including feedback on the 
                quality of life in rural or remote areas for 
                new hires and their families.
                  (G) Feedback from CBP employees, other than 
                new hires, who are stationed at locations in a 
                rural or remote area, including feedback on the 
                quality of life in rural or remote areas for 
                those CBP employees and their families.
                  (H) Evaluation of Department of Homeland 
                Security internship programs and the usefulness 
                of those programs in improving hiring by the 
                Secretary in rural or remote areas.
          (3) Evaluation.--
                  (A) In general.--Each year, the Secretary 
                shall--
                          (i) evaluate the extent to which the 
                        strategy developed and implemented 
                        under paragraph (1) has improved the 
                        hiring and retention ability of the 
                        Secretary; and
                          (ii) make any appropriate updates to 
                        the strategy under paragraph (1).
                  (B) Information.--The evaluation conducted 
                under subparagraph (A) shall include--
                          (i) any reduction in the time taken 
                        by the Secretary to fill mission-
                        critical positions in rural or remote 
                        areas;
                          (ii) a general assessment of the 
                        impact of the strategy developed and 
                        implemented under paragraph (1) on 
                        hiring challenges in rural or remote 
                        areas; and
                          (iii) other information the Secretary 
                        determines relevant.
    (g) Inspector General Review.--Not later than 2 years after 
the date of enactment of the U.S. Customs and Border Protection 
Hiring and Retention Act of 2017, the Inspector General of the 
Department of Homeland Security shall review the use of hiring 
flexibilities by the Secretary under subsections (c) and (d) to 
determine whether the use of those flexibilities is helping the 
Secretary meet hiring and retention needs in rural and remote 
areas.
    (h) Report on Polygraph Requests.--The Secretary shall 
report to Congress on the number of requests the Secretary 
receives from any other Federal agency for the file of an 
applicant for a position in U.S. Customs and Border Patrol that 
includes the results of a polygraph examination.
    (i) Exercise of Authority.--
          (1) Sole discretion.--The exercise of authority under 
        subsection (c) shall be subject to the sole and 
        exclusive discretion of the Secretary (or the 
        Commissioner, as applicable under paragraph (2) of this 
        subsection), notwithstanding chapter 71.
          (2) Delegation.--
                  (A) In general.--Subject to subparagraph (B), 
                the Secretary may delegate any authority under 
                this section to the Commissioner.
                  (B) Oversight.--The Commissioner may not make 
                a determination under subsection (b)(1) unless 
                the Secretary approves the determination.
    (j) Rule of Construction.--Nothing in this section shall be 
construed to exempt the Secretary or the Director from the 
applicability of the merit system principles under section 
2301.
    (k) Sunset.--The authorities under subsections (c) and (d) 
shall terminate on the date that is 5 years after the date of 
enactment of the U.S. Customs and Border Protection Hiring and 
Retention Act of 2017.

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