S. Rept. 115-270 - U.S. CUSTOMS AND BORDER PROTECTION HIRING AND RETENTION ACT OF 2017115th Congress (2017-2018)
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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\
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\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).
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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\
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\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.
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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:
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\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\
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\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\
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\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:
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\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
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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\
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\19\Id.
\20\Id.
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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\
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\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.
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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\
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\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).
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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.
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\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.
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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.
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\32\U.S. Customs and Border Protection, Polygraph Exam FAQS,
available at https://www.cbp.gov/careers/car/poly.
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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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