II 

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. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘U.S. Customs and Bor5 der Protection Hiring and Retention Act of 2017’’ or the 

6 ‘‘CBP HiRe Act’’. 

7 SEC. 2. FLEXIBILITY IN EMPLOYMENT AUTHORITIES. 

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

9 States Code, is amended by adding at the end the fol10 lowing: 


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1 ‘‘§ 9702. U.S. Customs and Border Protection employ2 ment authorities 

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

4 ‘‘(1) the term ‘Commissioner’ means the Com5 missioner of U.S. Customs and Border Protection; 

6 ‘‘(2) the term ‘covered CBP employee’ means— 

7 ‘‘(A) a customs and border protection offi8 cer, as defined in section 8331(31); and 

9 ‘‘(B) a border patrol agent, as defined in 

10 section 5550(a); 

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

12 the Office of Personnel Management; 

13 ‘‘(4) the term ‘local infrastructure’ means— 

14 ‘‘(A) established communities; 

15 ‘‘(B) suitable places of residence, including 

16 sufficient affordable housing choices; 

17 ‘‘(C) amenities and services, including 

18 medical care, child care, and schools, that con19 tribute to quality of life; 

20 ‘‘(D) consumer goods and services; or 

21 ‘‘(E) other local infrastructure, as deter22 mined by the Commissioner; and 

23 ‘‘(5) the term ‘rural or remote area’ means an 

24 area within the United States— 

25 ‘‘(A) in which a facility of U.S. Customs 

26 and Border Protection is located; 


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1 ‘‘(B) that is so distant from the nearest 

2 local infrastructure as to require an appreciable 

3 degree of expense, hardship, and inconvenience, 

4 beyond that normally encountered in metropoli5 tan life, on the part of an individual living or 

6 working in the area; and 

7 ‘‘(C) that— 

8 ‘‘(i) has not been defined and des9 ignated as an urbanized area by the Bu10 reau of the Census during the most re11 cently completed decennial census; or 

12 ‘‘(ii) has been determined by the Com13 missioner to be a rural or remote area 

14 based on any other factors that the Com15 missioner considers relevant. 

16 ‘‘(b) DEMONSTRATION OF RECRUITMENT AND RE17 TENTION DIFFICULTIES IN RURAL OR REMOTE AREAS.— 

18 For purposes of subsections (c), (d), and (e), the Commis19 sioner shall demonstrate a direct relationship between the 

20 rural or remote nature of a rural or remote area, and dif21 ficulty in the recruitment and retention of covered CBP 

22 employees in the area, by providing evidence— 

23 ‘‘(1) that the Commissioner— 

24 ‘‘(A) is unable to efficiently and effectively 

25 recruit individuals for positions as covered CBP 


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1 employees, which may be demonstrated with 

2 various types of evidence, including— 

3 ‘‘(i) evidence that multiple positions 

4 have been continuously vacant for signifi5 cantly longer than the national average pe6 riod for which similar positions in U.S. 

7 Customs and Border Protection are va8 cant; or 

9 ‘‘(ii) recruitment studies that dem10 onstrate the inability of the Commissioner 

11 to efficiently and effectively recruit covered 

12 CBP employees for positions in the area; 

13 or 

14 ‘‘(B) experiences a consistent inability to 

15 retain covered CBP employees that negatively 

16 impacts agency operations at a local or regional 

17 level; or 

18 ‘‘(2) of any other inability, directly related to 

19 recruitment or retention difficulties, that the Com20 missioner determines sufficient. 

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

22 RELOCATION BONUSES; RETENTION BONUSES.— 

23 ‘‘(1) DIRECT HIRE AUTHORITY.— 

24 ‘‘(A) IN GENERAL.—In addition to the au25 thority under section 3304(a)(3)(B), the ComVerDate Sep 11 2014 00:17 Jun 12, 2017 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1305.IS S1305

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1 missioner may appoint, without regard to the 

2 provision of sections 3309 through 3318, can3 didates to positions as covered CBP employees 

4 if the Commissioner determines that there ex5 ists a severe shortage of highly qualified can6 didates because the positions are in a rural or 

7 remote area. 

8 ‘‘(B) PRIORITIZATION OF HIRING VET9 ERANS.—If the Commissioner uses the direct 

10 hiring authority under subparagraph (A), the 

11 Commissioner shall work to prioritize the hiring 

12 of veterans by following the principles contained 

13 in part 307 of title 5, Code of Federal Regula14 tions, or any successor regulation, regarding the 

15 appointment of qualified veterans to the com16 petitive service. 

17 ‘‘(2) RECRUITMENT AND RELOCATION BO18 NUSES.—The Commissioner may pay a bonus to an 

19 individual if the Commissioner determines that— 

20 ‘‘(A) the conditions under paragraphs (1) 

21 and (2) of subsection (b) of section 5753 are 

22 satisfied with respect to the individual (without 

23 regard to any other provision of that section); 

24 and 


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1 ‘‘(B) the position to which the individual is 

2 appointed or to which the individual moves or 

3 must relocate— 

4 ‘‘(i) is a position as a covered CBP 

5 employee; and 

6 ‘‘(ii) is in a rural or remote area. 

7 ‘‘(3) RETENTION BONUSES.—The Commis8 sioner may pay a retention bonus to a covered CBP 

9 employee if the Commissioner determines that— 

10 ‘‘(A) the condition under subsection (b)(1) 

11 of section 5754 is satisfied (without regard to 

12 any other provision of that section); 

13 ‘‘(B) the covered CBP employee is em14 ployed in a rural or remote area; and 

15 ‘‘(C) in the absence of a retention bonus, 

16 the covered CBP employee would be likely to 

17 leave— 

18 ‘‘(i) the Federal service; or 

19 ‘‘(ii) for a different position in the 

20 Federal service, including a position in an21 other agency or component of the Depart22 ment of Homeland Security. 

23 ‘‘(4) OPM OVERSIGHT.—The Director— 

24 ‘‘(A) may set aside a determination of the 

25 Commissioner under this subsection only if the 


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1 Director finds substantial evidence that the 

2 Commissioner abused the discretion of the 

3 Commissioner in making the determination; and 

4 ‘‘(B) shall oversee the compliance of the 

5 Commissioner with this subsection. 

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

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

8 the Director may establish special rates of pay in accord9 ance with that section if the Director finds that the re10 cruitment or retention efforts of the Commissioner with 

11 respect to positions for covered CBP employees in one or 

12 more areas or locations are, or are likely to become, sig13 nificantly handicapped because the positions are located 

14 in a rural or remote area. 

15 ‘‘(e) ALLOWANCE BASED ON DUTY AT REMOTE

16 WORKSITES.— 

17 ‘‘(1) IN GENERAL.—Section 5942(a) shall be 

18 applied, with respect to a covered CBP employee, as 

19 if ‘of not to exceed $10 a day’ and all that follows 

20 were replaced with ‘for the cost of the commute at 

21 a mileage reimbursement rate determined by the Di22 rector of the Office of Personnel Management’. 

23 ‘‘(2) OPM DETERMINATION.—For purposes of 

24 section 5942(a), as applied in accordance with para25 graph (1) of this subsection, the Director shall pubVerDate Sep 11 2014 00:17 Jun 12, 2017 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1305.IS S1305

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1 lish in the Federal Register a notice of a mileage re2 imbursement rate that is equivalent, to the max3 imum extent practicable, to the mileage reimburse4 ment rate for privately owned automobiles prescribed 

5 by the Administrator of General Services under sec6 tion 5707(b)(2). 

7 ‘‘(3) NON-COMMUTING FACTORS.— 

8 ‘‘(A) IN GENERAL.—A covered CBP em9 ployee who is assigned to duty, except tem10 porary duty, at a location in a rural or remote 

11 area is eligible for, in addition to pay otherwise 

12 due the employee, an allowance in an amount 

13 not to exceed the necessary amount per day, as 

14 determined by the Commissioner in accordance 

15 with subparagraph (C). 

16 ‘‘(B) EXCEPTION.—The Commissioner 

17 shall not be required to pay the allowance under 

18 subparagraph (A) if the covered CBP employee 

19 does not routinely operate the personal vehicle 

20 of the employee for transportation between the 

21 duty station and place of residence of the em22 ployee. 

23 ‘‘(C) DETERMINATION OF NECESSARY

24 AMOUNT; OPM APPROVAL.— 


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1 ‘‘(i) DETERMINATION OF NECESSARY

2 AMOUNT.—In determining the necessary 

3 amount of an allowance under subpara4 graph (A), the Commissioner shall consider 

5 the factors considered by the Director 

6 under regulations implementing section 

7 5942. 

8 ‘‘(ii) OPM APPROVAL.—The Commis9 sioner may not pay an allowance under 

10 subparagraph (A) unless the Director ap11 proves the amount of the allowance. 

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

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

14 Not later than 180 days after the date of enactment 

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

16 and Retention Act of 2017, and in conjunction with 

17 the Chief Human Capital Officer of the Department 

18 of Homeland Security, the Commissioner shall de19 velop and implement a strategy to improve education 

20 regarding hiring and human resources flexibilities 

21 (including hiring and human resources flexibilities 

22 for locations in rural or remote areas) for all em23 ployees, serving in agency headquarters or field of24 fices, who are involved in the recruitment, hiring, as25 sessment, or selection of candidates for locations in 


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1 a rural or remote area, as well as the retention of 

2 current employees. 

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 

20 local colleges and universities, veterans transi21 tion and employment centers, and job place22 ment program in regions that could assist in 

23 filling positions in rural or remote areas. 

24 ‘‘(E) Examination of existing agency pro25 grams on how to most effectively aid spouses 


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1 and families of individuals who are candidates 

2 or new hires in a rural or remote area. 

3 ‘‘(F) Feedback from individuals who are 

4 candidates or new hires at locations in a rural 

5 or remote area, including feedback on the qual6 ity of life in rural or remote areas for new hires 

7 and their families. 

8 ‘‘(G) Feedback from covered CBP employ9 ees, other than new hires, who are stationed at 

10 locations in a rural or remote area, including 

11 feedback on the quality of life in rural or re12 mote areas for those covered CBP employees 

13 and their families. 

14 ‘‘(H) Evaluation of Department of Home15 land Security internship programs and the use16 fulness of those programs in improving hiring 

17 by the Commissioner in rural or remote areas. 

18 ‘‘(3) EVALUATION.— 

19 ‘‘(A) IN GENERAL.—Each year, the Com20 missioner shall— 

21 ‘‘(i) evaluate, on an annual basis, the 

22 extent to which the strategy developed and 

23 implemented under paragraph (1) has im24 proved the hiring and retention ability of 

25 the Commissioner; 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 Commissioner to fill mission-critical 

7 positions in rural or remote areas; 

8 ‘‘(ii) a general assessment of the im9 pact of the strategy implemented under 

10 paragraph (1) on hiring challenges in rural 

11 or remote areas; and 

12 ‘‘(iii) other information the Commis13 sioner determines relevant. 

14 ‘‘(g) LIMITATION ON USE OF POLYGRAPHS.— 

15 ‘‘(1) IN GENERAL.—If an applicant for a posi16 tion in U.S. Customs and Border Protection does 

17 not successfully complete a polygraph examination 

18 required for appointment to that position, the Com19 missioner may not disclose the results of the poly20 graph examination to any other Federal agency or 

21 non-Federal employer unless the applicant signs a 

22 release granting the Commissioner permission to re23 lease all background investigation and adjudication 

24 materials to another Federal agency or a non-Fed25 eral employer. 


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1 ‘‘(2) DISCLOSURES.— 

2 ‘‘(A) IN GENERAL.—The Commissioner 

3 shall provide each applicant for a position in 

4 U.S. Customs and Border Protection who will 

5 be required to successfully complete a polygraph 

6 examination before appointment to the position 

7 a list of actions or conduct of, or events relating 

8 to, the applicant that could disqualify the appli9 cant from being appointed to the position, 

10 which may include— 

11 ‘‘(i) the criteria for making a suit12 ability determination under part 731 of 

13 title 5, Code of Federal Regulations (or 

14 any successor regulation); or 

15 ‘‘(ii) the criteria for making an eligi16 bility determination under part 732 of title 

17 5, Code of Federal Regulations (or any 

18 successor regulation). 

19 ‘‘(B) LIST REQUIREMENTS.—When pro20 viding the list required under subparagraph 

21 (A), the Commissioner shall clearly inform all 

22 applicants that the list may not constitute the 

23 complete list of potential disqualifying actions, 

24 conduct, or events. 


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1 ‘‘(3) USE OF POLYGRAPHS.—Paragraph (1) 

2 shall not— 

3 ‘‘(A) restrict the authority of the Commis4 sioner to report or refer an admission of crimi5 nal conduct or activity made by an applicant 

6 during a polygraph examination to appropriate 

7 law enforcement officials; 

8 ‘‘(B) limit the authority of the Commis9 sioner to use the results of a polygraph exam10 ination administered as a requirement for ap11 pointment to a position in U.S. Customs and 

12 Border Protection, in whole or in part, in deter13 mining whether to appoint the individual to the 

14 position; or 

15 ‘‘(C) limit the authority of another Federal 

16 agency or another agency or component of the 

17 Department of Homeland Security to use the 

18 results of a polygraph examination administered 

19 to an individual by a Federal agency other than 

20 U.S. Customs and Border Protection, in whole 

21 or in part, in determining whether to appoint 

22 the individual to a position in the agency or 

23 component. 

24 ‘‘(h) RULE OF CONSTRUCTION.—Nothing in this sec25 tion shall be construed to exempt the Commissioner or the 


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1 Director from the applicability of the merit system prin2 ciples under section 2301.’’. 

3 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

5 States Code, is amended by adding at the end the fol6 lowing: 

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

Æ 


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