II 

114TH CONGRESS 

2D SESSION S. 3494 

To provide U.S. Customs and Border Protection with adequate flexibility 

in its employment authorities. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 5, 2016 

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 ‘‘CBP Hiring and Re5 tention Act of 2016’’ or the ‘‘CBP HiRe Act’’. 

6 SEC. 2. RETENTION INCENTIVES. 

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

8 States Code, is amended by adding at the end the fol9 lowing: 


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1 ‘‘§ 9702. U.S. Customs and Border Protection reten2 tion incentives 

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

4 ‘‘(1) the term ‘bonus percentage rate’ means 

5 the bonus percentage rate for a covered CBP em6 ployee established in accordance with subsection (d); 

7 ‘‘(2) the term ‘covered CBP employee’ means 

8 an employee of U.S. Customs and Border Protection 

9 performing activities that are critical to border secu10 rity, as determined by the Secretary; and 

11 ‘‘(3) the term ‘Secretary’ means the Secretary 

12 of Homeland Security. 

13 ‘‘(b) AUTHORITY.—The Secretary may pay a reten14 tion bonus to a covered CBP employee if the Secretary 

15 determines that, in the absence of a retention bonus, the 

16 covered CBP employee would be likely to leave— 

17 ‘‘(1) Federal service; or 

18 ‘‘(2) for a different position in the Federal serv19 ice, including a position in another agency or compo20 nent of the Department of Homeland Security. 

21 ‘‘(c) WRITTEN AGREEMENT.— 

22 ‘‘(1) IN GENERAL.—Payment of a retention 

23 bonus under this section is contingent upon the cov24 ered CBP employee entering into a written service 

25 agreement with U.S. Customs and Border ProtecVerDate Sep 11 2014 23:30 Dec 05, 2016 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3494.IS S3494

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1 tion to complete a period of employment with U.S. 

2 Customs and Border Protection. 

3 ‘‘(2) TERMS AND CONDITIONS.—A written 

4 agreement under this section shall include— 

5 ‘‘(A) the length of the required service pe6 riod; 

7 ‘‘(B) the amount of the bonus; 

8 ‘‘(C) the method of payment; 

9 ‘‘(D) other terms and conditions under 

10 which the bonus is payable, subject to the re11 quirements of this section and regulations of 

12 the Secretary, which shall include— 

13 ‘‘(i) the conditions under which the 

14 agreement may be terminated before the 

15 agreed-upon service period has been com16 pleted; and 

17 ‘‘(ii) the effect of the termination. 

18 ‘‘(d) AMOUNT.—A retention bonus under this sec19 tion— 

20 ‘‘(1) shall be stated as a percentage of the basic 

21 pay of the covered CBP employee for the service pe22 riod associated with the bonus; and 

23 ‘‘(2) may not exceed 25 percent of the basic pay 

24 of the covered CBP employee. 

25 ‘‘(e) FORM OF PAYMENT.— 


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1 ‘‘(1) IN GENERAL.—A retention bonus may be 

2 paid to a covered CBP employee in installments 

3 after completion of specified periods of service or in 

4 a single lump sum at the end of the full period of 

5 service required by the written service agreement. 

6 ‘‘(2) INSTALLMENT PAYMENTS.— 

7 ‘‘(A) CALCULATION OF INSTALLMENTS.— 

8 An installment payment is derived by multi9 plying the amount of basic pay earned in the 

10 installment period by a percentage not to ex11 ceed the bonus percentage rate established for 

12 the covered CBP employee. 

13 ‘‘(B) LUMP SUM FINAL PAYMENT.—If the 

14 installment payment percentage established for 

15 the covered CBP employee under subparagraph 

16 (A) is less than the bonus percentage rate es17 tablished for the covered CBP employee, the ac18 crued but unpaid portion of the bonus is pay19 able as part of the final installment payment to 

20 the covered CBP employee after completion of 

21 the full service period under the terms of the 

22 written service agreement. 

23 ‘‘(f) EXCLUSION FROM BASIC PAY.—A retention 

24 bonus under this section is not part of the basic pay of 

25 an employee for any purpose.’’. 


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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 retention incentives.’’. 

5 SEC. 3. PILOT PROGRAMS FOR U.S. CUSTOMS AND BORDER 

6 PROTECTION. 

7 (a) DEFINITIONS.—In this section— 

8 (1) the term ‘‘covered area’’ means a geo9 graphic area that the Secretary determines— 

10 (A) is in a remote location; or 

11 (B) is an area for which it is difficult to 

12 find employees willing to accept the area as a 

13 permanent duty station; 

14 (2) the term ‘‘covered CBP employee’’ has the 

15 meaning given that term in section 9702 of title 5, 

16 United States Code, as added by section 2; 

17 (3) the term ‘‘Department’’ means the Depart18 ment of Homeland Security; and 

19 (4) the term ‘‘Secretary’’ means the Secretary 

20 of Homeland Security. 

21 (b) SPECIAL RATES OF PAY.— 

22 (1) AUTHORITY.—The Secretary may establish 

23 one or more special rates of pay for covered CBP 

24 employees whose permanent duty station is located 

25 in a covered area. 


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1 (2) MAXIMUM AMOUNT.—A special rate of pay 

2 established under this subsection may not provide a 

3 rate of basic pay for any covered CBP employee that 

4 exceeds 125 percent of the otherwise applicable rate 

5 of basic pay for the covered CBP employee. 

6 (3) SUNSET.— 

7 (A) IN GENERAL.—Subject to subpara8 graph (B), on and after the first day of the 

9 first pay period that begins more than 2 years 

10 after the date of enactment of this Act, the Sec11 retary may not pay a covered CBP employee 

12 under a special rate of pay established under 

13 this subsection. 

14 (B) EXTENSION.—If the Secretary deter15 mines the program of special rates of pay under 

16 this subsection is performing satisfactorily, the 

17 Secretary may extend the period during which 

18 the Secretary may pay covered CBP employees 

19 under such special rates of pay through the day 

20 before the first pay period that begins more 

21 than 4 years after the date of enactment of this 

22 Act. 

23 (4) SAVINGS PROVISION.—For any covered 

24 CBP employee being paid at a special rate of pay es25 tablished under this subsection on the day before the 


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1 date the pilot program terminates under paragraph 

2 (3), effective on the date the pilot program termi3 nates under paragraph (3) the rate of pay for the 

4 covered CBP employee shall be the rate of pay that 

5 would have been in effect for the covered CBP em6 ployee had this section never been enacted, including 

7 any periodic step-increase or other adjustment that 

8 would have taken effect if the covered CBP employee 

9 had not been paid at a special rate of pay. 

10 (c) LIMITATION ON USE OF POLYGRAPHS.— 

11 (1) IN GENERAL.—Subject to paragraph (2), 

12 during the 1-year period beginning on the date of 

13 enactment of this Act, if an applicant for a position 

14 in U.S. Customs and Border Protection does not 

15 successfully complete a polygraph examination re16 quired for appointment to that position— 

17 (A) U.S. Customs and Border Protection 

18 may not disclose the results of the polygraph 

19 examination to any other Federal agency or any 

20 other agency or component of the Department; 

21 and 

22 (B) another Federal agency or another 

23 agency or component of the Department may 

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1 er to appoint the individual to a position in the 

2 agency or component. 

3 (2) EXTENSION.—If the Secretary determines 

4 that the limitation on the use of polygraphs under 

5 paragraph (1) is performing satisfactorily, the Sec6 retary may extend the limitation until the end of the 

7 2-year period beginning on the date of enactment of 

8 this Act. 

9 (3) DISCLOSURES.— 

10 (A) IN GENERAL.—The Secretary shall 

11 provide each applicant for a position in U.S. 

12 Customs and Border Protection who will be re13 quired to successfully complete a polygraph ex14 amination before appointment to the position a 

15 list of actions or conduct of, or events relating 

16 to, the applicant that could disqualify the appli17 cant from being appointed to the position. 

18 (B) LIST REQUIREMENTS.—When pro19 viding the list required under subparagraph 

20 (A), the Secretary shall— 

21 (i) provide applicants as complete a 

22 list as is possible of potential disqualifying 

23 actions, conduct, or events; and 

24 (ii) clearly inform all applicants that 

25 the list provided under subparagraph (A) 


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1 does not constitute the complete list of po2 tential disqualifying actions, conduct, or 

3 events. 

4 (4) USE OF POLYGRAPHS.—Paragraph (1) shall 

5 not— 

6 (A) restrict the authority of U.S. Customs 

7 and Border Protection to report or refer an ad8 mission of criminal activity made by an appli9 cant during a polygraph examination; 

10 (B) limit the authority of U.S. Customs 

11 and Border Protection to use the results of a 

12 polygraph examination administered as a re13 quirement for appointment to a position in U.S. 

14 Customs and Border Protection, in whole or in 

15 part, in determining whether to appoint the in16 dividual to the position; or 

17 (C) limit the authority of another Federal 

18 agency or another agency or component of the 

19 Department to use the results of a polygraph 

20 examination administered to an individual by a 

21 Federal agency other than U.S. Customs and 

22 Border Protection, in whole or in part, in deter23 mining whether to appoint the individual to a 

24 position in the agency or component. 

Æ 


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