U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

79–010 

" ! SENATE 115TH CONGRESS

2d Session 

REPORT

2018

115–270 

Calendar No. 447 

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 

JUNE 7, 2018.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

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 


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Calendar No. 447 

115TH CONGRESS SENATE REPORT " ! 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. 


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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). 

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/OIG17-98-SR-Jul17.pdf. 6 5 C.F.R. § 337.201 

7 Id. 

8 U.S. Dep’t of Homeland Security Off. of Inspector General, supra note 5. 

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. § 5753(b)(1). 12 5 U.S.C. § 5754(b). 

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

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

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: 

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

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 cloVerDate Sep 11 2014 05:42 Jun 10, 2018 Jkt 079010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR270.XXX SR270

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13 5 C.F.R § 575.314(a)(1)(i). 14 5 U.S.C. § 5753(d); 5 U.S.C. 5754(e)(1)(A). 15 5 U.S.C. § 5754(e)(1)(B). 16 5 C.F.R. § 575.305(d). 17 Improving Pay Flexibilities in the Federal Workforce, supra note 18 Id. 19 Id. 20 Id. 21 Id. 

sure 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

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: 

CBP faces additional challenges in staffing hard-to-fill 

and remote locations. For the purposes of this testimony, 

I have characterized hard-to-fill and remote locations as 

being a significant distance from amenities and services 

such as medical care, child care and schools, and employment options for spouses. Geographically remote locations 

are often accompanied by challenging environmental factors, such as harsh weather conditions. Difficulty in staffing these locations may also be impacted by a lack of affordable housing choices, consumer goods and services, and 

local infrastructure. In addition, both hard-to-fill and geographically remote locations are sometimes associated with 

a higher cost of living. The challenges CBP faces regarding 

hard-to-fill and remote locations include a limited pool of 

qualified and suitable candidates interested in working 

and residing in these localities. This is compounded by 

funding and regulatory limitations, which limit our efforts 

to incentivize individuals to apply for, relocate to, or remain at these locations. 

For example, one regulatory limitation for retention bonuses prohibits CBP from giving such a bonus to an employee who is likely 

to transfer to another location within CBP since the employee is 

not leaving Federal service.19 The 25 percent cap may also not be 

meaningful enough to incentivize employees to work in its remote 

locations.20

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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22 Improving Pay Flexibilities in the Federal Workforce, supra note 9. 23 5 U.S.C. § 5305. See also 5 C.F.R. § 530.304. 24Telephone 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). 26Telephone conversation between U.S. Customs and Border Protection representative and 

Committee staff (Sept. 25, 2017). 27Keeping 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, § 2, 123 Stat. 4104 (Jan. 4, 2011). 

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: 

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

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 enVerDate Sep 11 2014 05:42 Jun 10, 2018 Jkt 079010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR270.XXX SR270

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29Keeping 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. 31On 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. 32 U.S. Customs and Border Protection, Polygraph Exam FAQS, available at https:// 

www.cbp.gov/careers/car/poly. 

forcement 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. 

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. 

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. 


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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 


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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 deVerDate Sep 11 2014 05:42 Jun 10, 2018 Jkt 079010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\SR270.XXX SR270

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termination 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. 


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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.— 


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(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. 


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(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 agreedupon 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 


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(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 agreedupon 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.— 


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(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. 


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(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. 


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(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. 

* * * * * * * 

Æ 


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