[Congressional Record Volume 164, Number 168 (Wednesday, October 10, 2018)]
[Senate]
[Pages S6774-S6775]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





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

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 447, S. 1305.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The senior assistant legislative clerk read as follows:

       A bill (S. 1305) to provide U.S. Customs and Border 
     Protection with adequate flexibility in its employment 
     authorities.

  There being no objection, the Senate proceeded to consider the bill 
which had been reported from the Committee on Homeland Security and 
Governmental Affairs, with an amendment to strike all after the 
enacting clause and insert in lieu thereof the following:

     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.--

[[Page S6775]]

       ``(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.''.

  Mr. McCONNELL. I ask unanimous consent that the committee-reported 
substitute amendment be agreed to, that the bill, as amended, be 
considered read a third time and passed, and that the motion to 
reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee-reported amendment in the nature of a substitute was 
agreed to.
  The bill (S. 1305), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed.

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