II 114th CONGRESS 2d Session S. 3494 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. Short title This Act may be cited as the CBP Hiring and Retention Act of 2016 or the CBP HiRe Act . 2. Retention incentives (a) In general Chapter 97 of title 5, United States Code, is amended by adding at the end the following: 9702. U.S. Customs and Border Protection retention incentives (a) Definitions In this section— (1) the term bonus percentage rate means the bonus percentage rate for a covered CBP employee established in accordance with subsection (d); (2) the term covered CBP employee means an employee of U.S. Customs and Border Protection performing activities that are critical to border security, as determined by the Secretary; and (3) the term Secretary means the Secretary of Homeland Security. (b) Authority The Secretary may pay a retention bonus to a covered CBP employee if the Secretary determines that, in the absence of a retention bonus, the covered CBP employee would be likely to leave— (1) Federal service; or (2) for a different position in the Federal service, including a position in another agency or component of the Department of Homeland Security. (c) Written agreement (1) In general Payment of a retention bonus under this section is contingent upon the covered CBP employee entering into a written service agreement with U.S. Customs and Border Protection to complete a period of employment with U.S. Customs and Border Protection. (2) Terms and conditions A written agreement under this section shall include— (A) the length of the required service period; (B) the amount of the bonus; (C) the method of payment; (D) other terms and conditions under which the bonus is payable, subject to the requirements of this section and regulations of the Secretary, which shall include— (i) the conditions under which the agreement may be terminated before the agreed-upon service period has been completed; and (ii) the effect of the termination. (d) Amount A retention bonus under this section— (1) shall be stated as a percentage of the basic pay of the covered CBP employee for the service period associated with the bonus; and (2) may not exceed 25 percent of the basic pay of the covered CBP employee. (e) Form of payment (1) In general A retention bonus may be paid to a covered CBP employee in installments after completion of specified periods of service or in a single lump sum at the end of the full period of service required by the written service agreement. (2) Installment payments (A) Calculation of installments An installment payment is derived by multiplying the amount of basic pay earned in the installment period by a percentage not to exceed the bonus percentage rate established for the covered CBP employee. (B) Lump sum final payment If the installment payment percentage established for the covered CBP employee under subparagraph (A) is less than the bonus percentage rate established for the covered CBP employee, the accrued but unpaid portion of the bonus is payable as part of the final installment payment to the covered CBP employee after completion of the full service period under the terms of the written service agreement. (f) Exclusion from basic pay A retention bonus under this section is not part of the basic pay of an employee for any purpose. . (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 retention incentives. . 3. Pilot programs for U.S. Customs and Border Protection (a) Definitions In this section— (1) the term covered area means a geographic area that the Secretary determines— (A) is in a remote location; or (B) is an area for which it is difficult to find employees willing to accept the area as a permanent duty station; (2) the term covered CBP employee has the meaning given that term in section 9702 of title 5, United States Code, as added by section 2; (3) the term Department means the Department of Homeland Security; and (4) the term Secretary means the Secretary of Homeland Security. (b) Special rates of pay (1) Authority The Secretary may establish one or more special rates of pay for covered CBP employees whose permanent duty station is located in a covered area. (2) Maximum amount A special rate of pay established under this subsection may not provide a rate of basic pay for any covered CBP employee that exceeds 125 percent of the otherwise applicable rate of basic pay for the covered CBP employee. (3) Sunset (A) In general Subject to subparagraph (B), on and after the first day of the first pay period that begins more than 2 years after the date of enactment of this Act, the Secretary may not pay a covered CBP employee under a special rate of pay established under this subsection. (B) Extension If the Secretary determines the program of special rates of pay under this subsection is performing satisfactorily, the Secretary may extend the period during which the Secretary may pay covered CBP employees under such special rates of pay through the day before the first pay period that begins more than 4 years after the date of enactment of this Act. (4) Savings provision For any covered CBP employee being paid at a special rate of pay established under this subsection on the day before the date the pilot program terminates under paragraph (3), effective on the date the pilot program terminates under paragraph (3) the rate of pay for the covered CBP employee shall be the rate of pay that would have been in effect for the covered CBP employee had this section never been enacted, including any periodic step-increase or other adjustment that would have taken effect if the covered CBP employee had not been paid at a special rate of pay. (c) Limitation on use of polygraphs (1) In general Subject to paragraph (2), during the 1-year period beginning on the date of enactment of this Act, if an applicant for a position in U.S. Customs and Border Protection does not successfully complete a polygraph examination required for appointment to that position— (A) U.S. Customs and Border Protection may not disclose the results of the polygraph examination to any other Federal agency or any other agency or component of the Department; and (B) another Federal agency or another agency or component of the Department may not use the results of the polygraph examination, in whole or in part, in determining whether to appoint the individual to a position in the agency or component. (2) Extension If the Secretary determines that the limitation on the use of polygraphs under paragraph (1) is performing satisfactorily, the Secretary may extend the limitation until the end of the 2-year period beginning on the date of enactment of this Act. (3) Disclosures (A) In general The Secretary shall provide each applicant for a position in U.S. Customs and Border Protection who will be required to successfully complete a polygraph examination before appointment to the position a list of actions or conduct of, or events relating to, the applicant that could disqualify the applicant from being appointed to the position. (B) List requirements When providing the list required under subparagraph (A), the Secretary shall— (i) provide applicants as complete a list as is possible of potential disqualifying actions, conduct, or events; and (ii) clearly inform all applicants that the list provided under subparagraph (A) does not constitute the complete list of potential disqualifying actions, conduct, or events. (4) Use of polygraphs Paragraph (1) shall not— (A) restrict the authority of U.S. Customs and Border Protection to report or refer an admission of criminal activity made by an applicant during a polygraph examination; (B) limit the authority of U.S. Customs and Border Protection to use the results of a polygraph examination administered as a requirement for appointment to a position in U.S. Customs and Border Protection, in whole or in part, in determining whether to appoint the individual to the position; or (C) limit the authority of another Federal agency or another agency or component of the Department to use the results of a polygraph examination administered to an individual by a Federal agency other than U.S. Customs and Border Protection, in whole or in part, in determining whether to appoint the individual to a position in the agency or component.