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

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115th CONGRESS
  1st Session
                                S. 1305

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 7, 2017

Mr. Flake (for himself and Ms. Heitkamp) introduced the following bill; 
which was read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
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 `Commissioner' means the Commissioner of 
        U.S. Customs and Border Protection;
            ``(2) the term `covered CBP employee' means--
                    ``(A) a customs and border protection officer, as 
                defined in section 8331(31); and
                    ``(B) a border patrol agent, as defined in section 
                5550(a);
            ``(3) the term `Director' means the Director of the Office 
        of Personnel Management;
            ``(4) the term `local infrastructure' means--
                    ``(A) established communities;
                    ``(B) suitable places of residence, including 
                sufficient affordable housing choices;
                    ``(C) amenities and services, including medical 
                care, child care, and schools, that contribute to 
                quality of life;
                    ``(D) consumer goods and services; or
                    ``(E) other local infrastructure, as determined by 
                the Commissioner; and
            ``(5) the term `rural or remote area' means an area within 
        the United States--
                    ``(A) in which a facility of U.S. Customs and 
                Border Protection is located;
                    ``(B) that is so distant from the nearest local 
                infrastructure as to require an appreciable degree of 
                expense, hardship, and inconvenience, beyond that 
                normally encountered in metropolitan life, on the part 
                of an individual living or working in the area; and
                    ``(C) that--
                            ``(i) has not been defined and designated 
                        as an urbanized area by the Bureau of the 
                        Census during the most recently completed 
                        decennial census; or
                            ``(ii) has been determined by the 
                        Commissioner to be a rural or remote area based 
                        on any other factors that the Commissioner 
                        considers relevant.
    ``(b) Demonstration of Recruitment and Retention Difficulties in 
Rural or Remote Areas.--For purposes of subsections (c), (d), and (e), 
the Commissioner shall demonstrate a direct relationship between the 
rural or remote nature of a rural or remote area, and difficulty in the 
recruitment and retention of covered CBP employees in the area, by 
providing evidence--
            ``(1) that the Commissioner--
                    ``(A) is unable to efficiently and effectively 
                recruit individuals for positions as covered 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; or
                            ``(ii) recruitment studies that demonstrate 
                        the inability of the Commissioner to 
                        efficiently and effectively recruit covered CBP 
                        employees for positions in the area; or
                    ``(B) experiences a consistent inability to retain 
                covered CBP employees that negatively impacts agency 
                operations at a local or regional level; or
            ``(2) of any other inability, directly related to 
        recruitment or retention difficulties, that the Commissioner 
        determines sufficient.
    ``(c) Direct Hire Authority; Recruitment and Relocation Bonuses; 
Retention Bonuses.--
            ``(1) Direct hire authority.--
                    ``(A) In general.--In addition to the authority 
                under section 3304(a)(3)(B), the Commissioner may 
                appoint, without regard to the provision of sections 
                3309 through 3318, candidates to positions as covered 
                CBP employees if the Commissioner determines that there 
                exists a severe shortage of highly qualified candidates 
                because the positions are in a rural or remote area.
                    ``(B) Prioritization of hiring veterans.--If the 
                Commissioner uses the direct hiring authority under 
                subparagraph (A), the Commissioner shall work to 
                prioritize the hiring of veterans by following the 
                principles contained in part 307 of title 5, Code of 
                Federal Regulations, or any successor regulation, 
                regarding the appointment of qualified veterans to the 
                competitive service.
            ``(2) Recruitment and relocation bonuses.--The Commissioner 
        may pay a bonus to an individual if the Commissioner determines 
        that--
                    ``(A) the conditions under paragraphs (1) and (2) 
                of subsection (b) of section 5753 are satisfied with 
                respect to the individual (without regard to any other 
                provision of that section); and
                    ``(B) the position to which the individual is 
                appointed or to which the individual moves or must 
                relocate--
                            ``(i) is a position as a covered CBP 
                        employee; and
                            ``(ii) is in a rural or remote area.
            ``(3) Retention bonuses.--The Commissioner may pay a 
        retention bonus to a covered CBP employee if the Commissioner 
        determines that--
                    ``(A) the condition under subsection (b)(1) of 
                section 5754 is satisfied (without regard to any other 
                provision of that section);
                    ``(B) the covered CBP employee is employed in a 
                rural or remote area; and
                    ``(C) in the absence of a retention bonus, the 
                covered 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.
            ``(4) OPM oversight.--The Director--
                    ``(A) may set aside a determination of the 
                Commissioner under this subsection only if the Director 
                finds substantial evidence that the Commissioner abused 
                the discretion of the Commissioner in making the 
                determination; and
                    ``(B) shall oversee the compliance of the 
                Commissioner 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 Commissioner 
with respect to positions for covered CBP employees in one or more 
areas or locations are, or are likely to become, significantly 
handicapped because the positions are located in a rural or remote 
area.
    ``(e) Allowance Based on Duty at Remote Worksites.--
            ``(1) In general.--Section 5942(a) shall be applied, with 
        respect to a covered CBP employee, as if `of not to exceed $10 
        a day' and all that follows were replaced with `for the cost of 
        the commute at a mileage reimbursement rate determined by the 
        Director of the Office of Personnel Management'.
            ``(2) OPM determination.--For purposes of section 5942(a), 
        as applied in accordance with paragraph (1) of this subsection, 
        the Director shall publish in the Federal Register a notice of 
        a mileage reimbursement rate that is equivalent, to the maximum 
        extent practicable, to the mileage reimbursement rate for 
        privately owned automobiles prescribed by the Administrator of 
        General Services under section 5707(b)(2).
            ``(3) Non-commuting factors.--
                    ``(A) In general.--A covered CBP employee who is 
                assigned to duty, except temporary duty, at a location 
                in a rural or remote area is eligible for, in addition 
                to pay otherwise due the employee, an allowance in an 
                amount not to exceed the necessary amount per day, as 
                determined by the Commissioner in accordance with 
                subparagraph (C).
                    ``(B) Exception.--The Commissioner shall not be 
                required to pay the allowance under subparagraph (A) if 
                the covered CBP employee does not routinely operate the 
                personal vehicle of the employee for transportation 
                between the duty station and place of residence of the 
                employee.
                    ``(C) Determination of necessary amount; opm 
                approval.--
                            ``(i) Determination of necessary amount.--
                        In determining the necessary amount of an 
                        allowance under subparagraph (A), the 
                        Commissioner shall consider the factors 
                        considered by the Director under regulations 
                        implementing section 5942.
                            ``(ii) OPM approval.--The Commissioner may 
                        not pay an allowance under subparagraph (A) 
                        unless the Director approves the amount of the 
                        allowance.
    ``(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 Commissioner 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 local colleges and 
                universities, 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 covered 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 covered 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 Commissioner in 
                rural or remote areas.
            ``(3) Evaluation.--
                    ``(A) In general.--Each year, the Commissioner 
                shall--
                            ``(i) evaluate, on an annual basis, the 
                        extent to which the strategy developed and 
                        implemented under paragraph (1) has improved 
                        the hiring and retention ability of the 
                        Commissioner; 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 Commissioner to fill mission-critical 
                        positions in rural or remote areas;
                            ``(ii) a general assessment of the impact 
                        of the strategy implemented under paragraph (1) 
                        on hiring challenges in rural or remote areas; 
                        and
                            ``(iii) other information the Commissioner 
                        determines relevant.
    ``(g) Limitation on Use of Polygraphs.--
            ``(1) In general.--If an applicant for a position in U.S. 
        Customs and Border Protection does not successfully complete a 
        polygraph examination required for appointment to that 
        position, the Commissioner may not disclose the results of the 
        polygraph examination to any other Federal agency or non-
        Federal employer unless the applicant signs a release granting 
        the Commissioner permission to release all background 
        investigation and adjudication materials to another Federal 
        agency or a non-Federal employer.
            ``(2) Disclosures.--
                    ``(A) In general.--The Commissioner shall provide 
                each applicant for a position in U.S. Customs and 
                Border Protection who will be required to successfully 
                complete a polygraph examination before appointment to 
                the position a list of actions or conduct of, or events 
                relating to, the applicant that could disqualify the 
                applicant from being appointed to the position, which 
                may include--
                            ``(i) the criteria for making a suitability 
                        determination under part 731 of title 5, Code 
                        of Federal Regulations (or any successor 
                        regulation); or
                            ``(ii) the criteria for making an 
                        eligibility determination under part 732 of 
                        title 5, Code of Federal Regulations (or any 
                        successor regulation).
                    ``(B) List requirements.--When providing the list 
                required under subparagraph (A), the Commissioner shall 
                clearly inform all applicants that the list may not 
                constitute the complete list of potential disqualifying 
                actions, conduct, or events.
            ``(3) Use of polygraphs.--Paragraph (1) shall not--
                    ``(A) restrict the authority of the Commissioner to 
                report or refer an admission of criminal conduct or 
                activity made by an applicant during a polygraph 
                examination to appropriate law enforcement officials;
                    ``(B) limit the authority of the Commissioner to 
                use the results of a polygraph examination administered 
                as a requirement for appointment to a position in U.S. 
                Customs and Border Protection, in whole or in part, in 
                determining whether to appoint the individual to the 
                position; or
                    ``(C) limit the authority of another Federal agency 
                or another agency or component of the Department of 
                Homeland Security to use the results of a polygraph 
                examination administered to an individual by a Federal 
                agency other than U.S. Customs and Border Protection, 
                in whole or in part, in determining whether to appoint 
                the individual to a position in the agency or 
                component.
    ``(h) Rule of Construction.--Nothing in this section shall be 
construed to exempt the Commissioner or the Director from the 
applicability of the merit system principles under section 2301.''.
    (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.''.
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