II 117th CONGRESS 2d Session S. 4775 IN THE SENATE OF THE UNITED STATES August 4, 2022 Mr. Portman (for himself, Ms. Sinema , Mr. Kelly , and Mr. Lankford ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To establish and authorize funding for a Border Patrol Reserve, and for other purposes.

1. Short title This Act may be cited as the Border Patrol Enhancement Act . 2. Border Patrol Reserve (a) Establishment There is established within the United States Border Patrol, the Border Patrol Reserve, which shall be organized, administered, trained, and supplied under the direction of the Commissioner of U.S. Customs and Border Protection (referred to in this Act as the Commissioner ). (b) Purpose The purpose of the Border Patrol Reserve is to augment and support the mission of the United States Border Patrol. (c) Authorized size (1) In general Subject to paragraph (2), the Secretary of Homeland Security shall— (A) prescribe the initial authorized size of the Border Patrol Reserve; and (B) not less frequently than annually, review and adjust, if necessary, the authorized size of the Border Patrol Reserve. (2) Limitation The number of Border Patrol Reserve agents may not exceed 2,500 at any time. (3) Resources The Commissioner shall make available to the United States Border Patrol such services, facilities, and appropriations that may be necessary to activate and effectuate the purposes of the Border Patrol Reserve. (d) Qualifications Each Border Patrol Reserve agent— (1) shall have previously served as a full-time United States Border Patrol agent for at least 5 years; (2) may not have been subject to any disciplinary actions described in section 7512 of title 5, United States Code, during their tenure with the United States Border Patrol; (3) shall be serving as— (A) a Federal law enforcement officer (as defined in section 115(c) of title 18, United States Code); or (B) a law enforcement officer (as defined in section 2503 of the Omnibus Crime Control and Safe Streets Act of 1968 ( 34 U.S.C. 10533 )); (4) shall be subject to the mandatory separation requirements under section 8335(b) or 8425(b) of title 5, United States Code; and (5) shall meet any other qualifications established by the Commissioner. (e) Powers; duties; compensation (1) In general The Commissioner shall— (A) specify the law enforcement powers and duties that will be given to Border Patrol Reserve agents, which powers and duties shall only be effective while such agents are on activated status; (B) confer upon such agents the same grades as provided for other Border Patrol agents, to the extent warranted based on their respective qualifications and experience; and (C) provide such agents with the pay and allowances associated with their rank, grade, or rating while they are in active duty with the basic border patrol rate of pay, as adjusted under this Act, including matching funds under the Thrift Savings Plan for pay received during such duty. (2) Exception Notwithstanding paragraph (1)(C), Border Patrol Reserve agents may not be required to work the minimum number of hours or days set forth in section 5550(b)(4) of title 5, United States Code. (3) Compensation from employer Any Border Patrol Reserve agent who, immediately before beginning duty as a Border Patrol Reserve agent, was receiving compensation as a law enforcement officer (as defined in section 2503 of the Omnibus Crime Control and Safe Streets Act of 1968 ( 34 U.S.C. 10533 )), and did not resign from such position, may continue to receive such compensation from a law enforcement agency while on such duty. (4) Effect on creditable service (A) In general Any Border Patrol Reserve agent who is not described in subparagraph (B) or (C) shall receive creditable service under the Federal Employees Retirement System upon the commencement of active duty. (B) Federal law enforcement agent Any Border Patrol Reserve agent who, immediately before such duty, was serving as a Federal law enforcement agent and did not resign from such position, shall not receive additional creditable service under the Federal Employees Retirement System or the Civil Service Retirement System while on such duty. (f) Effect of injury or death (1) In general Any Border Patrol Reserve agent who sustains a physical injury, contracts a disease or sickness, or dies as a result of service while performing duty under this section, or while engaged in authorized travel to or from such duty is entitled to compensation as a Federal employee in accordance with chapter 81 of title 5, United States, Code. (2) Workers' compensation claims For the purposes of workers’ compensation claims relating to performing duty as a Border Patrol Reserve agent, such agents shall be considered employees (as defined in section 8101 of title 5, United States Code). (g) Rates of pay; travel costs The Commissioner shall— (1) provide all Border Patrol Reserve agents hourly pay at a rate equivalent to the rate paid to an employee classified at the grade level conferred by the Commissioner under subsection (e)(1)(B) for any time spent by such agents to fulfill applicable training requirements; and (2) reimburse such agents for the costs associated with travel to and from in-person training. (h) Report Not later than 1 year after the date of the enactment of this Act, and each fiscal year thereafter through fiscal year 2028, the Secretary of Homeland Security shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives regarding the utilization of Border Patrol Reserve agents that describes— (1) the powers, duties, and compensation of Border Patrol Reserve agents; (2) the number of Border Patrol Reserve agents who were activated during the report period, disaggregated by U.S. Border Patrol sector; (3) the compliance rate for completing the training courses required of Border Patrol Reserve agents and the training provided to Border Patrol Reserve agents during the report period; and (4) the total costs incurred during the reporting period by the Border Patrol Reserve. 3. Authorized staffing level for the United States Border Patrol (a) Definitions In this section: (1) Qualified research entity The term qualified research entity means an independent, not-for-profit, federally funded research entity with appropriate expertise and analytical capability to analyze and validate the personnel requirements determination model. (2) Validated personnel requirements determination model The term validated personnel requirements determination model means a determination of the number of United States Border Patrol agents needed to meet the critical mission requirements of the United States Border Patrol to maintain an orderly process for migrants entering the United States, that has been validated by a qualified research entity pursuant to subsection (d). (b) In general The authorized personnel level for United States Border Patrol agents on the date of the enactment of this Act is 20,500. (c) United States Border Patrol personnel requirements determination model (1) Completion; notice Not later than 180 days after the date of the enactment of this Act, the Commissioner shall complete a personnel requirements determination model for United States Border Patrol that builds on the 5-year United States Border Patrol staffing and deployment plan referred to on page 33 of House of Representatives Report 112–91 (May 26, 2011) and submit a notice of completion to— (A) the appropriate congressional committees; (B) the Director of the Office of Personnel Management; and (C) the Comptroller General of the United States. (2) Certification Not later than 30 days after the completion of the personnel requirements determination model described in paragraph (1), the Commissioner shall submit a copy of such model and a strategy for obtaining third-party validation of such model, to— (A) the appropriate congressional committees; (B) the Office of Personnel Management; and (C) the Comptroller General of the United States. (d) Independent study of personnel requirements determination model (1) Requirement for study Not later than 90 days after the completion of the personnel requirements determination model pursuant to subsection (c)(1), the Secretary of Homeland Security shall enter into a contract with a qualified research entity to conduct a study that analyzes the validity of the model. (2) Reports (A) To secretary Not later than 1 year after the completion of the personnel requirements determination model under subsection (c)(1), the qualified research entity shall submit a report to the Secretary of Homeland Security that includes— (i) the results of the study required under paragraph (1); and (ii) any recommendations regarding the model that the qualified research entity considers to be appropriate. (B) To congress Not later than 30 days after receiving the report described in subparagraph (A), the Secretary of Homeland Security shall submit such report, along with any additional views or recommendations regarding the personnel requirements determination model, to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives . (e) Authority To adjust authorized personnel level Beginning on the date that is 180 days after receiving a report pursuant to subsection (d)(2) that validates the personnel requirements determination model, the Secretary of Homeland Security may adjust the authorized personnel level for the United States Border Patrol to a level that does not exceed the level recommended by the validated personnel requirements determination model. 4. Establishment of higher minimum rates of pay for United States Border Patrol agents (a) Higher minimum rate of pay Not later than January 1, 2023, the Director of the Office of Personnel Management— (1) shall, in accordance with section 5305 of title 5, United States Code— (A) increase the minimum rate of pay for United States Border Patrol agents at the grade GS–12 of the General Schedule by not less than 14 percent; and (B) increase other grades or levels, occupational groups, series, classes, or subdivisions thereof, as determined by the Secretary of Homeland Security; and (2) may make increases in all rates in the pay range for each such grade or level, in accordance with such section 5305. (b) Inapplicability The discretion granted to agency heads under section 5305(a)(2) of title 5, United States Code, shall not apply to increase in rates of pay authorized under subsection (a). 5. Continuing training (a) In general The Commissioner shall require all United States Border Patrol agents, including Border Patrol Reserve agents and other employees or contracted employees designated by the Commissioner, to participate in annual continuing training to maintain and update their understanding of— (1) Department of Homeland Security policies, procedures, and guidelines; (2) the fundamentals of law, ethics, and professional conduct; (3) applicable Federal law and regulations; (4) precedential legal rulings, including Federal Circuit Court and United States Supreme Court opinions relating to the duty of care and treatment of persons in the custody of the United States Border Patrol that the Commissioner determines are relevant to active duty agents; (5) applicable migration trends that the Commissioner determines are relevant; (6) best practices for coordinating with community stakeholders; and (7) any other information that the Commissioner determines to be relevant to active duty agents. (b) Training subjects Continuing training under this subsection shall include training regarding— (1) non-lethal use of force policies available to United States Border Patrol agents and de-escalation strategies and methods; (2) identifying, screening, and responding to vulnerable populations, such as children, persons with diminished mental capacity, victims of human trafficking, victims of gender-based violence, victims of torture or abuse, and the acutely ill; (3) trends in transnational criminal organization activities that impact border security and migration; (4) policies, strategies, and programs— (A) to protect due process, the civil, human, and privacy rights of individuals, and the private property rights of land owners; (B) to reduce the number of migrant and agent deaths; and (C) to improve the safety of agents on patrol; (5) personal resilience; (6) anti-corruption and officer ethics training; (7) current migration trends, including updated cultural and societal issues of nations that are a significant source of migrants who are— (A) arriving at a United States port of entry to seek humanitarian protection; or (B) encountered at a United States international boundary while attempting to enter without inspection; (8) the impact of border security operations on natural resources and the environment, including strategies to limit the impact of border security operations on natural resources and the environment; (9) relevant cultural, societal, racial, and religious training, including cross-cultural communication skills; (10) training authorized under the Prison Rape Elimination Act of 2003 ( 42 U.S.C. 15601 et seq. ); (11) risk management and safety training that includes agency protocols for ensuring public safety, personal safety, and the safety of persons in the custody of the Department of Homeland Security; (12) non-lethal, self-defense training; and (13) any other training that meets the requirements to maintain and update the subjects identified in subsection (a). (c) Course requirements Courses offered under this section— (1) shall be administered by the United States Border Patrol, in consultation with the Federal Law Enforcement Training Center; and (2) shall be approved in advance by the Commissioner of U.S. Customs and Border Protection to ensure that such courses satisfy the requirements for training under this section. (d) Assessment Not later than 2 years after the date of the enactment of this Act, the Comptroller General of the United States shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives that assesses the training and education provided pursuant to this section, including continuing education. (e) Frequency requirements Training offered as part of continuing education under this section shall include— (1) annual courses focusing on the curriculum described in paragraphs (1) through (6) of subsection (b); and (2) biannual courses focusing on curriculum described in paragraphs (7) through (12) of subsection (b). (f) Border patrol reserve training The Commissioner shall— (1) establish such requirements as may be necessary for the training and familiarization of Border Patrol Reserve agents, which shall include— (A) medical fitness screenings and the continuing training described in this section; (B) requirements for in-person or virtual training to ensure that such agents maintain the capabilities necessary to perform their duties; and (C) firearms training and qualification, commensurate with the requirements for United States Border Patrol agents; (2) establish and require completion of a comprehensive in-person training and familiarization program for Border Patrol Reserve Agents upon activation before utilizing those Reserve agents in operational roles; and (3) take actions necessary, up to and including separation for any Border Patrol Reserve Agent who does not adhere to the requirements established by the Commissioner for training and familiarization.