[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 1305 Engrossed in Senate (ES)]

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115th CONGRESS
  2d Session
                                S. 1305

_______________________________________________________________________

                                 AN ACT


 
To provide U.S. Customs and Border Protection with adequate flexibility 
                     in its employment authorities.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``U.S. Customs and Border Protection 
Hiring and Retention Act of 2017'' or the ``CBP HiRe Act''.

SEC. 2. FLEXIBILITY IN EMPLOYMENT AUTHORITIES.

    (a) In General.--Chapter 97 of title 5, United States Code, is 
amended by adding at the end the following:
``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 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 of 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 5753) 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 incentive 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 Protection 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.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 97 of title 5, United States Code, is amended by adding at the 
end the following:

``9702. U.S. Customs and Border Protection employment authorities.''.

            Passed the Senate October 10, 2018.

            Attest:

                                                             Secretary.
115th CONGRESS

  2d Session

                                S. 1305

_______________________________________________________________________

                                 AN ACT

To provide U.S. Customs and Border Protection with adequate flexibility 
                     in its employment authorities.