IC 

115TH CONGRESS 

2D SESSION S. 1305 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 12, 2018 

Referred to the Committee on Oversight and Government Reform 

AN ACT 

To provide U.S. Customs and Border Protection with 

adequate flexibility in its employment authorities. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘U.S. Customs and Bor3 der Protection Hiring and Retention Act of 2017’’ or the 

4 ‘‘CBP HiRe Act’’. 

5 SEC. 2. FLEXIBILITY IN EMPLOYMENT AUTHORITIES. 

6 (a) IN GENERAL.—Chapter 97 of title 5, United 

7 States Code, is amended by adding at the end the fol8 lowing: 

9 ‘‘§ 9702. U.S. Customs and Border Protection employ10 ment authorities 

11 ‘‘(a) DEFINITIONS.—In this section— 

12 ‘‘(1) the term ‘CBP employee’ means an em13 ployee of U.S. Customs and Border Protection; 

14 ‘‘(2) the term ‘Commissioner’ means the Com15 missioner of U.S. Customs and Border Protection; 

16 ‘‘(3) the term ‘Director’ means the Director of 

17 the Office of Personnel Management; 

18 ‘‘(4) the term ‘rural or remote area’ means an 

19 area within the United States that is not within an 

20 area defined and designated as an urbanized area by 

21 the Bureau of the Census in the most recently com22 pleted decennial census; and 

23 ‘‘(5) the term ‘Secretary’ means the Secretary 

24 of Homeland Security. 

25 ‘‘(b) DEMONSTRATION OF RECRUITMENT AND RE26 TENTION DIFFICULTIES IN RURAL OR REMOTE AREAS.— 


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1 ‘‘(1) IN GENERAL.—For purposes of sub2 sections (c) and (d), the Secretary shall determine, 

3 for a rural or remote area, whether there is— 

4 ‘‘(A) a critical hiring need in the area; and 

5 ‘‘(B) a direct relationship between— 

6 ‘‘(i) the rural or remote nature of the 

7 area; and 

8 ‘‘(ii) difficulty in the recruitment and 

9 retention of CBP employees in the area. 

10 ‘‘(2) FACTORS.—To inform the determination 

11 of a direct relationship under paragraph (1)(B), the 

12 Secretary may consider evidence— 

13 ‘‘(A) that the Secretary— 

14 ‘‘(i) is unable to efficiently and effec15 tively recruit individuals for positions as 

16 CBP employees, which may be dem17 onstrated with various types of evidence, 

18 including— 

19 ‘‘(I) evidence that multiple posi20 tions have been continuously vacant 

21 for significantly longer than the na22 tional average period for which similar 

23 positions in U.S. Customs and Border 

24 Protection are vacant; and 


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1 ‘‘(II) recruitment studies that 

2 demonstrate the inability of the Sec3 retary to efficiently and effectively re4 cruit CBP employees for positions in 

5 the area; or 

6 ‘‘(ii) experiences a consistent inability 

7 to retain CBP employees that negatively 

8 impacts agency operations at a local or re9 gional level; or 

10 ‘‘(B) of any other inability, directly related 

11 to recruitment or retention difficulties, that the 

12 Secretary determines sufficient. 

13 ‘‘(c) DIRECT HIRE AUTHORITY; RECRUITMENT AND

14 RELOCATION BONUSES; RETENTION BONUSES.— 

15 ‘‘(1) DIRECT HIRE AUTHORITY.— 

16 ‘‘(A) IN GENERAL.—The Secretary may 

17 appoint, without regard to any provision of sec18 tions 3309 through 3319, candidates to posi19 tions in the competitive service as CBP employ20 ees, in a rural or remote area, if the Sec21 retary— 

22 ‘‘(i) determines that— 

23 ‘‘(I) there is a critical hiring 

24 need; and 


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1 ‘‘(II) there exists a severe short2 age of qualified candidates because of 

3 the direct relationship identified by 

4 the Secretary under subsection 

5 (b)(1)(B) of this section between— 

6 ‘‘(aa) the rural or remote 

7 nature of the area; and 

8 ‘‘(bb) difficulty in the re9 cruitment and retention of CBP 

10 employees in the area; and 

11 ‘‘(ii) has given public notice for the 

12 positions. 

13 ‘‘(B) PRIORITIZATION OF HIRING VET14 ERANS.—If the Secretary uses the direct hiring 

15 authority under subparagraph (A), the Sec16 retary shall apply the principles of preference 

17 for the hiring of veterans established under sub18 chapter I of chapter 33. 

19 ‘‘(2) RECRUITMENT AND RELOCATION BO20 NUSES.—The Secretary may pay a bonus to an indi21 vidual (other than an individual described in sub22 section (a)(2) of section 5753) if— 

23 ‘‘(A) the Secretary determines that— 

24 ‘‘(i) conditions consistent with the 

25 conditions described in paragraphs (1) and 


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1 (2) of subsection (b) of such section 5753 

2 are satisfied with respect to the individual 

3 (without regard to any other provision of 

4 that section); and 

5 ‘‘(ii) the position to which the indi6 vidual is appointed or to which the indi7 vidual moves or must relocate— 

8 ‘‘(I) is a position as a CBP em9 ployee; and 

10 ‘‘(II) is in a rural or remote area 

11 for which the Secretary has identified 

12 a direct relationship under subsection 

13 (b)(1)(B) of this section between— 

14 ‘‘(aa) the rural or remote 

15 nature of the area; and 

16 ‘‘(bb) difficulty in the re17 cruitment and retention of CBP 

18 employees in the area; and 

19 ‘‘(B) the individual enters into a written 

20 service agreement with the Secretary— 

21 ‘‘(i) under which the individual is re22 quired to complete a period of employment 

23 as a CBP employee of not less than 2 

24 years; and 

25 ‘‘(ii) that includes— 


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1 ‘‘(I) the commencement and ter2 mination dates of the required service 

3 period (or provisions for the deter4 mination thereof); 

5 ‘‘(II) the amount of the bonus; 

6 and 

7 ‘‘(III) other terms and conditions 

8 under which the bonus is payable, 

9 subject to the requirements of this 

10 subsection, including— 

11 ‘‘(aa) the conditions under 

12 which the agreement may be ter13 minated before the agreed-upon 

14 service period has been com15 pleted; and 

16 ‘‘(bb) the effect of a termi17 nation described in item (aa). 

18 ‘‘(3) RETENTION BONUSES.—The Secretary 

19 may pay a retention bonus to a CBP employee 

20 (other than an individual described in subsection 

21 (a)(2) of section 5754) if— 

22 ‘‘(A) the Secretary determines that— 

23 ‘‘(i) a condition consistent with the 

24 condition described in subsection (b)(1) of 

25 such section 5754 is satisfied with respect 


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1 to the CBP employee (without regard to 

2 any other provision of that section); 

3 ‘‘(ii) the CBP employee is employed in 

4 a rural or remote area for which the Sec5 retary has identified a direct relationship 

6 under subsection (b)(1)(B) of this section 

7 between— 

8 ‘‘(I) the rural or remote nature 

9 of the area; and 

10 ‘‘(II) difficulty in the recruitment 

11 and retention of CBP employees in 

12 the area; and 

13 ‘‘(iii) in the absence of a retention 

14 bonus, the CBP employee would be likely 

15 to leave— 

16 ‘‘(I) the Federal service; or 

17 ‘‘(II) for a different position in 

18 the Federal service, including a posi19 tion in another agency or component 

20 of the Department of Homeland Secu21 rity; and 

22 ‘‘(B) the individual enters into a written 

23 service agreement with the Secretary— 

24 ‘‘(i) under which the individual is re25 quired to complete a period of employment 


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1 as a CBP employee of not less than 2 

2 years; and 

3 ‘‘(ii) that includes— 

4 ‘‘(I) the commencement and ter5 mination dates of the required service 

6 period (or provisions for the deter7 mination thereof); 

8 ‘‘(II) the amount of the bonus; 

9 and 

10 ‘‘(III) other terms and conditions 

11 under which the bonus is payable, 

12 subject to the requirements of this 

13 subsection, including— 

14 ‘‘(aa) the conditions under 

15 which the agreement may be ter16 minated before the agreed-upon 

17 service period has been com18 pleted; and 

19 ‘‘(bb) the effect of a termi20 nation described in item (aa). 

21 ‘‘(4) RULES FOR BONUSES.— 

22 ‘‘(A) MAXIMUM BONUS.—A bonus paid to 

23 an employee under— 

24 ‘‘(i) paragraph (2) may not exceed 

25 100 percent of the annual rate of basic pay 


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1 of the employee as of the commencement 

2 date of the applicable service period; and 

3 ‘‘(ii) paragraph (3) may not exceed 50 

4 percent of the annual rate of basic pay of 

5 the employee as of the commencement date 

6 of the applicable service period. 

7 ‘‘(B) RELATION TO BASIC PAY.—A bonus 

8 paid to an employee under paragraph (2) or (3) 

9 shall not be considered part of the basic pay of 

10 the employee for any purpose. 

11 ‘‘(5) OPM OVERSIGHT.—The Director shall, to 

12 the extent practicable— 

13 ‘‘(A) set aside a determination of the Sec14 retary under this subsection if the Director 

15 finds substantial evidence that the Secretary 

16 abused the discretion of the Secretary in mak17 ing the determination; and 

18 ‘‘(B) oversee the compliance of the Sec19 retary with this subsection. 

20 ‘‘(d) SPECIAL PAY AUTHORITY.—In addition to the 

21 circumstances described in subsection (b) of section 5305, 

22 the Director may establish special rates of pay in accord23 ance with that section if the Director finds that the re24 cruitment or retention efforts of the Secretary with respect 

25 to positions for CBP employees in an area or location are, 


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1 or are likely to become, significantly handicapped because 

2 the positions are located in a rural or remote area for 

3 which the Secretary has identified a direct relationship 

4 under subsection (b)(1)(B) of this section between— 

5 ‘‘(1) the rural or remote nature of the area; and 

6 ‘‘(2) difficulty in the recruitment and retention 

7 of CBP employees in the area. 

8 ‘‘(e) REGULAR CBP REVIEW.— 

9 ‘‘(1) ENSURING FLEXIBILITIES MEET CBP

10 NEEDS.—Each year, the Secretary shall review the 

11 use of hiring flexibilities under subsections (c) and 

12 (d) to fill positions at a location in a rural or remote 

13 area to determine— 

14 ‘‘(A) the impact of the use of those flexi15 bilities on solving hiring and retention chal16 lenges at the location; 

17 ‘‘(B) whether hiring and retention chal18 lenges still exist at the location; and 

19 ‘‘(C) whether the Secretary needs to con20 tinue to use those flexibilities at the location. 

21 ‘‘(2) CONSIDERATION.—In conducting the re22 view under paragraph (1), the Secretary shall con23 sider— 

24 ‘‘(A) whether any CBP employee accepted 

25 an employment incentive under subsection (c) 


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1 or (d) and then transferred to a new location or 

2 left U.S. Customs and Border Protection; and 

3 ‘‘(B) the length of time that each employee 

4 identified under subparagraph (A) stayed at the 

5 original location before transferring to a new lo6 cation or leaving U.S. Customs and Border 

7 Protection. 

8 ‘‘(3) DISTRIBUTION.—The Secretary shall sub9 mit to Congress a report on each review required 

10 under paragraph (1). 

11 ‘‘(f) IMPROVING CBP HIRING AND RETENTION.— 

12 ‘‘(1) EDUCATION OF CBP HIRING OFFICIALS.— 

13 Not later than 180 days after the date of enactment 

14 of the U.S. Customs and Border Protection Hiring 

15 and Retention Act of 2017, and in conjunction with 

16 the Chief Human Capital Officer of the Department 

17 of Homeland Security, the Secretary shall develop 

18 and implement a strategy to improve education re19 garding hiring and human resources flexibilities (in20 cluding hiring and human resources flexibilities for 

21 locations in rural or remote areas) for all employees, 

22 serving in agency headquarters or field offices, who 

23 are involved in the recruitment, hiring, assessment, 

24 or selection of candidates for locations in a rural or 


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1 remote area, as well as the retention of current em2 ployees. 

3 ‘‘(2) ELEMENTS.—Elements of the strategy 

4 under paragraph (1) shall include the following: 

5 ‘‘(A) Developing or updating training and 

6 educational materials on hiring and human re7 sources flexibilities for employees who are in8 volved in the recruitment, hiring, assessment, or 

9 selection of candidates, as well as the retention 

10 of current employees. 

11 ‘‘(B) Regular training sessions for per12 sonnel who are critical to filling open positions 

13 in rural or remote areas. 

14 ‘‘(C) The development of pilot programs or 

15 other programs, as appropriate, to address 

16 identified hiring challenges in rural or remote 

17 areas. 

18 ‘‘(D) Developing and enhancing strategic 

19 recruiting efforts through relationships with in20 stitutions of higher education, as defined in sec21 tion 102 of the Higher Education Act of 1965 

22 (20 U.S.C. 1002), veterans transition and em23 ployment centers, and job placement program 

24 in regions that could assist in filling positions 

25 in rural or remote areas. 


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1 ‘‘(E) Examination of existing agency pro2 grams on how to most effectively aid spouses 

3 and families of individuals who are candidates 

4 or new hires in a rural or remote area. 

5 ‘‘(F) Feedback from individuals who are 

6 candidates or new hires at locations in a rural 

7 or remote area, including feedback on the qual8 ity of life in rural or remote areas for new hires 

9 and their families. 

10 ‘‘(G) Feedback from CBP employees, other 

11 than new hires, who are stationed at locations 

12 in a rural or remote area, including feedback on 

13 the quality of life in rural or remote areas for 

14 those CBP employees and their families. 

15 ‘‘(H) Evaluation of Department of Home16 land Security internship programs and the use17 fulness of those programs in improving hiring 

18 by the Secretary in rural or remote areas. 

19 ‘‘(3) EVALUATION.— 

20 ‘‘(A) IN GENERAL.—Each year, the Sec21 retary shall— 

22 ‘‘(i) evaluate the extent to which the 

23 strategy developed and implemented under 

24 paragraph (1) has improved the hiring and 

25 retention ability of the Secretary; and 


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1 ‘‘(ii) make any appropriate updates to 

2 the strategy under paragraph (1). 

3 ‘‘(B) INFORMATION.—The evaluation con4 ducted under subparagraph (A) shall include— 

5 ‘‘(i) any reduction in the time taken 

6 by the Secretary to fill mission-critical po7 sitions in rural or remote areas; 

8 ‘‘(ii) a general assessment of the im9 pact of the strategy developed and imple10 mented under paragraph (1) on hiring 

11 challenges in rural or remote areas; and 

12 ‘‘(iii) other information the Secretary 

13 determines relevant. 

14 ‘‘(g) INSPECTOR GENERAL REVIEW.—Not later than 

15 2 years after the date of enactment of the U.S. Customs 

16 and Border Protection Hiring and Retention Act of 2017, 

17 the Inspector General of the Department of Homeland Se18 curity shall review the use of hiring flexibilities by the Sec19 retary under subsections (c) and (d) to determine whether 

20 the use of those flexibilities is helping the Secretary meet 

21 hiring and retention needs in rural and remote areas. 

22 ‘‘(h) REPORT ON POLYGRAPH REQUESTS.—The Sec23 retary shall report to Congress on the number of requests 

24 the Secretary receives from any other Federal agency for 

25 the file of an applicant for a position in U.S. Customs 


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1 and Border Protection that includes the results of a poly2 graph examination. 

3 ‘‘(i) EXERCISE OF AUTHORITY.— 

4 ‘‘(1) SOLE DISCRETION.—The exercise of au5 thority under subsection (c) shall be subject to the 

6 sole and exclusive discretion of the Secretary (or the 

7 Commissioner, as applicable under paragraph (2) of 

8 this subsection), notwithstanding chapter 71. 

9 ‘‘(2) DELEGATION.— 

10 ‘‘(A) IN GENERAL.—Subject to subpara11 graph (B), the Secretary may delegate any au12 thority under this section to the Commissioner. 

13 ‘‘(B) OVERSIGHT.—The Commissioner 

14 may not make a determination under subsection 

15 (b)(1) unless the Secretary approves the deter16 mination. 

17 ‘‘(j) RULE OF CONSTRUCTION.—Nothing in this sec18 tion shall be construed to exempt the Secretary or the Di19 rector from the applicability of the merit system principles 

20 under section 2301. 

21 ‘‘(k) SUNSET.—The authorities under subsections (c) 

22 and (d) shall terminate on the date that is 5 years after 

23 the date of enactment of the U.S. Customs and Border 

24 Protection Hiring and Retention Act of 2017.’’. 


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1 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

2 The table of sections for chapter 97 of title 5, United 

3 States Code, is amended by adding at the end the fol4 lowing: 

‘‘9702. U.S. Customs and Border Protection employment authorities.’’. 

Passed the Senate October 10, 2018. 

Attest: JULIE E. ADAMS, 

Secretary. 


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