[Congressional Bills 111th Congress] [From the U.S. Government Publishing Office] [H.R. 4488 Introduced in House (IH)] 111th CONGRESS 2d Session H. R. 4488 To implement updated pay and personnel policies in order to improve the recruitment and retention of qualified Federal wildland firefighters and to reduce the Government's reliance on the more costly services of non-Federal wildfire resources. _______________________________________________________________________ IN THE HOUSE OF REPRESENTATIVES January 21, 2010 Mr. Filner (for himself, Mr. Farr, and Mr. Gallegly) introduced the following bill; which was referred to the Committee on Oversight and Government Reform, and in addition to the Committees on Natural Resources, Agriculture, and Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned _______________________________________________________________________ A BILL To implement updated pay and personnel policies in order to improve the recruitment and retention of qualified Federal wildland firefighters and to reduce the Government's reliance on the more costly services of non-Federal wildfire resources. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title.--This Act may be cited as the ``National Wildfire Infrastructure Improvement and Cost Containment Act''. (b) Table of Contents.--The table of contents is as follows: Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Findings. Sec. 4. Mandatory separation. Sec. 5. Equal protection under the law from outsourcing. Sec. 6. Classification of wildland firefighters. Sec. 7. Pay and benefits. Sec. 8. Firefighter liability. SEC. 2. DEFINITIONS. For the purposes of this Act-- (1) the term ``wildland firefighter'' means an employee of a Federal land management agency, the duties of whose position are primarily to perform work directly related to the prevention, control, suppression, and management of wildfires, including-- (A) an employee of a Federal land management agency who is assigned to support wildland fire suppression activities; and (B) an employee who is transferred to a supervisory or administrative position from a position of wildland firefighter (as defined by the preceding provisions of this paragraph); (2) the term ``Federal land management agency'' means-- (A) within the Department of the Interior, the Bureau of Land Management, the Bureau of Indian Affairs, the National Park Service, and the Fish and Wildlife Service; and (B) within the Department of Agriculture, the Forest Service; and (3) the term ``employee'' has the meaning given such term by section 2105 of title 5, United States Code. SEC. 3. FINDINGS. Congress finds the following: (1) Significant losses of Federal wildland firefighters to non-Federal fire agencies have been experienced by all 5 Federal land management agencies over the last several years. Federal land management agencies have failed to take actions within their authority to reduce or eliminate such losses despite being aware of the issues and solutions for over 20 years. (2) These losses have primarily been the result of Federal wildland firefighters leaving the Federal system for better pay and benefits offered by State and local fire agencies, particularly in the 11 western contiguous States. Pay and benefits for Federal wildland firefighters have not kept pace with other fire agencies, which continue to offer significantly higher pay and benefits to attract Federal firefighters. (3) These firefighter losses have resulted in significant vacancies in critical fire positions, resulting in reduced levels of personnel and other resources within the Federal sector as compared to those envisioned by the National Fire Plan. (4) Federal wildland firefighting resources are, by and large, inherently less costly to the Federal Government than the use of non-Federal resources. Therefore it stands to reason that strengthening the inherently less expensive Federal infrastructure will allow Federal land management agencies to reduce their reliance on higher-priced non-Federal resources and ultimately reduce wildfire suppression costs. (5) Federal land management agencies have failed to maintain Federal wildland firefighter staffing and resource levels pursuant to the National Fire Plan and its ``Most Efficient Level'' (MEL) as envisioned by Congress. (6) It is incumbent upon Congress and the Federal Government to provide America's taxpayers with the most fiscally effective and efficient wildland fire programs managed by the five Federal land management agencies. SEC. 4. MANDATORY SEPARATION. Section 8425(b) of title 5, United States Code, is amended-- (1) by redesignating the last paragraph as paragraph (3); and (2) by adding at the end the following: ``(4)(A) In the case of a wildland firefighter, paragraph (1) shall be applied-- ``(i) by striking `becomes 57 years of age or completes 20 years of service if then over that age.' and inserting `(A) becomes 65 years of age or completes 20 years of service if then over that age, or (B) is certified by a licensed physician as being unable to successfully complete all applicable physical standards testing as directed by the employing agency.'; and ``(ii) by disregarding the second sentence. ``(B) For purposes of this paragraph, the term `wildland firefighter' has the meaning given such term by section 2 of the National Wildfire Infrastructure Improvement and Cost Containment Act.''. SEC. 5. EQUAL PROTECTION UNDER THE LAW FROM OUTSOURCING. (a) Purpose.--To amend section 2465 of title 10, United States Code, to add the Department of Agriculture (United States Forest Service) and the Department of the Interior (Bureau of Land Management, Bureau of Indian Affairs, National Park Service, Fish and Wildlife Service) to the Department of Defense as agencies bound by the provisions set forth in subsection (a) of that section. (b) Findings.--Congress makes the following findings: (1) Federal firefighters employed by the Department of Defense enjoy certain protections from the outsourcing, or ``contracting out'' of their positions under section 2465 of title 10, United States Code. (2) A number of feasibility studies performed over many years at significant taxpayer expense have clearly shown that outsourcing, or ``contracting out'' services historically performed by Federal firefighters in a variety of agencies including the Department of Defense, the Department of Agriculture, and the Department of the Interior is neither cost-effective or efficient. (3) The specialization and unique responsibilities of protecting the Nation's Federal assets, including natural resources, demand the experience and expertise of well-trained, cost-effective Federal firefighters. (4) All Federal firefighters from all Federal agencies should enjoy equal protection under the law. (5) Congress concurs with the Undersecretary of Agriculture for Natural Resources and the Environment who indicated on July 14, 2008, that wildland firefighting is an ``inherent government function''. (c) Requirement.-- (1) In general.--Section 2465(a) of title 10, United States Code, is amended-- (A) by inserting after ``Department of Defense'' the following: ``the Department of Agriculture, the Department of the Interior, the Department of Veterans Affairs, the National Institute of Health, or any other Federal department or agency that employs firefighters''; and (B) by striking ``at any military installation or facility'' and inserting the following: ``that are performed, as of the date of the enactment of the National Wildfire Infrastructure Improvement and Cost Containment Act by a Federal employee of any such department or agency at any location, including military installations and facilities, national forests, national parks, and all other locations where the services of Federal firefighters or security guards are required or requested''. (2) Effective date.--The amendments made by paragraph (1) shall apply with respect to a contract for the performance of firefighting or security guard functions entered into on or after the date of the enactment of this Act. SEC. 6. CLASSIFICATION OF WILDLAND FIREFIGHTERS. (a) Requirements.-- (1) In general.--Within 30 days after the date of the enactment of this Act, the Office of Personnel Management, in cooperation with the Federal land management agencies, shall commence development of a separate and distinct wildland firefighter occupational series that will more accurately reflect the variety of duties performed by wildland firefighters. (2) Designation.--The official title assigned to any occupational series established pursuant to paragraph (1) shall include the designation of ``Wildland Firefighter''. (3) Positions described.--Paragraph (1) applies with respect to any class or other category of positions that consists primarily or exclusively of forestry technician positions, range technician positions, or any other positions the duties and responsibilities of which include-- (A) significant wildfire preparedness and suppression activities; or (B) activities necessary to meet any other emergency incident to which assigned. (4) Consultation.--Congress encourages the Office of Personnel Management to include recognized employee organizations, employee associations, and any other groups that represent Federal wildland firefighters in carrying out this subsection. (b) Hazardous Duty Differential Not Affected.--Section 5545(d)(1) of title 5, United States Code, is amended by striking all after ``except'' and inserting an em-dash and the following: ``(A) an employee in an occupational series covering positions for which the primary duties are wildland firefighting, as determined by the Office; and ``(B) in such other circumstances as the Office may by regulation prescribe; and''. (c) Employees Currently in 401 Series.--Any individual who, as of the date of the enactment of this Act, holds a position of wildland firefighter shall have the option of either remaining in the 401 series (as in effect on such date under chapter 51 of title 5, United States Code) or being included in the new wildland firefighter series, as established pursuant to subsection (a). SEC. 7. PAY AND BENEFITS. (a) Findings.-- (1) Along with proper classification, pay and benefits are the main reasons why wildland firefighters are leaving Federal service. (2) Wildland firefighters responding to emergency incidents do not receive portal-to-portal pay, even though their own employing agencies often compensate higher-paid non-Federal firefighters on the same incident with portal-to-portal pay. This disparity in treatment adversely affects morale among wildland firefighters, causing many of them to leave Federal service. (3) Wildland firefighters are often restricted to fire camps or left on fire lines while being taken ``off the clock'', with no opportunity to use their own time as they wish, despite provisions of the Fair Labor Standards Act which clearly state that such situations are compensable. (4) Supervisors are expected to remain responsible for their crews 24 hours a day while on assignment and to ensure that their crews are able to respond at a moment's notice, even when both supervisors and crew members are in a non-pay status. (5) Wildland firefighters must remain available and ``fit to work'' 24 hours a day in case of immediate need, even when ``off the clock'' and uncompensated. (6) Developing, maintaining, and retaining skilled personnel in the Federal wildland firefighting agencies is a growing problem that jeopardizes public safety and the effectiveness of wildland fire preparedness and suppression efforts across the Nation. (b) Portal-to-Portal Compensation Pilot Program.-- (1) In general.--In the case of a wildland firefighter, for full-time, part-time, and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours per week or 8 hours per day shall be considered overtime work, inclusive of all time the firefighter is away from their official duty station assigned to an emergency incident, in support of an emergency incident, or pre-positioned for emergency response, and shall be compensable as work time in accordance with 5542(a) of title 5, United States Code, as amended by paragraph (2)(A). (2) Requirements.-- (A) Amendment to title 5.--Section 5542(a) of title 5, United States Code, is amended by adding at the end (as a flush left sentence) the following: ``Notwithstanding paragraphs (1) and (2), for a wildland firefighter assigned to an emergency incident, assigned in support of an emergency incident, or pre-positioned for emergency response, the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of the basic pay of the employee, and that entire amount is premium pay''. (B) Fair labor standards act of 1938.--For the purpose of applying the provisions of the Fair Labor Standards Act of 1938 with respect to wildland firefighters, no violation referred to in such provisions shall be considered to have occurred if the requirements described in subparagraph (A) are met. (C) Funding.--There is authorized to be appropriated $25,000,000 to initiate a portal-to-portal pilot program under this subsection, commencing with the 2010 wildfire season. Any sums required in addition to amounts appropriated pursuant to the preceding sentence may be secured from the existing wildfire suppression budget for the fiscal year in which the season occurs. (D) Duration.--The pilot program shall be carried out by the Department of the Interior and the Department of Agriculture for a period not to exceed 3 calendar years beginning as of the start of the 2010 wildfire season. (E) Report.--At the end of the pilot program, the Secretary of the Interior and the Secretary of Agriculture shall submit to Congress a joint report on the effectiveness of the pilot program. Such report shall specifically address the effect of the program with respect to-- (i) recruitment and retention of wildland firefighters; and (ii) any cost savings. (F) Additional requirements.--To ensure adequate funding and to realize maximum wildfire suppression savings, the Secretary of the Interior and the Secretary of Agriculture shall take appropriate measures to provide that total funding for non-Federal fire suppression resources by their respective Departments-- (i) for the first year of the pilot program, do not exceed 90 percent of their combined non-Federal fire suppression costs for the 2008 and 2009 wildfire seasons; (ii) for the second year of the pilot program, do not exceed 75 percent of their combined non-Federal fire suppression costs for the 2008 and 2009 wildfire seasons; and (iii) for the third year of the pilot program, do not exceed 65 percent of their combined non-Federal fire suppression costs for the 2008 and 2009 wildfire seasons. (G) Exemption.--Employees compensated under the pilot program shall, for the period of such program, be exempt from any limitation on premium pay under section 5547 of title 5, United States Code. (c) Hazardous Duty Differential To Be Treated as Part of a Wildland Firefighter's Base Pay for Retirement Purposes.-- (1) In general.--Section 8331(3) of title 5, United States Code is amended-- (A) in subparagraph (G), by striking ``and'' at the end; (B) in subparagraph (H), by inserting ``and'' at the end; and (C) by adding after subparagraph (H) the following: ``(I) with respect to a wildland firefighter (as defined by section 2 of the National Wildfire Infrastructure Improvement and Cost Containment Act), any pay differential received under section 5545(d);''. (2) Conforming amendment.--Such section 8331(3) is further amended, in the matter following subparagraph (I) (as added by paragraph (1)(C)), by striking ``subparagraphs (B) through (H) of this paragraph'' and inserting ``subparagraphs (B) through (I),''. (d) Hazardous Duty Differential.-- (1) In general.--In the administration of section 5545(d) of title 5, United States Code, the Office of Personnel Management shall take such measures as may be necessary to ensure that, under the schedule or schedules of pay differentials for duty involving unusual physical hardship or hazard, a pay differential of 25 percent shall be payable to an individual while serving as a member of a wildland firefighting crew. (2) Definition.--For purposes this subsection, the term ``wildland firefighting crew'' includes ground (hand crew, hotshot, engine, and other fire apparatus personnel) and airborne (smoke jumper or helitack) firefighting personnel on the fire line of any wildfire or prescribed fuel treatment burn or fire, as further defined in regulations of the Office. (e) Benefits for Seasonal Wildland Firefighters.-- (1) Provisions relating to life insurance.--Section 8716(b) of title 5, United States Code, is amended-- (A) in paragraph (2), by striking ``or'' at the end; (B) in paragraph (3), by striking the period at the end and inserting ``; or''; and (C) by adding after paragraph (3) the following: ``(4) a wildland firefighter within the meaning of section 2 of the National Wildfire Infrastructure Improvement and Cost Containment Act.''. (2) Provisions relating to health benefits.--Section 8906a of title 5, United States Code, is amended by adding at the end the following: ``(c)(1) For purposes of this subsection, the term `wildland firefighter' has the meaning given such term by section 2 of the National Wildfire Infrastructure Improvement and Cost Containment Act. ``(2) In the case of a wildland firefighter-- ``(A) subsection (a)(2) shall be applied by substituting `cumulative' for `current continuous'; and ``(B) an individual is deemed not to have ceased to be a wildland firefighter during an interim period between wildfire seasons if such individual shows to the satisfaction of the Office of Personnel Management that such individual has a bona fide intention of continuing as a wildland firefighter immediately after such period, subject to section 8906(e)(1).''. (f) Buy Back of Civilian Time After 1989.-- (1) In general.--Any individual who is subject to the Federal Employees' Retirement System as a firefighter (within the meaning of section 8401 of title 5, United States Code) on the date of the enactment of this Act shall be entitled to have any qualifying firefighter service treated as creditable service under section 8411 of such title. (2) Qualifying firefighter service.--For purposes of this subsection, the term ``qualifying firefighter service'' means, in connection with an individual, any service-- (A) which was performed by such individual, as a wildland firefighter, after 1989 and before the date of the enactment of this Act; and (B) for which such individual was not allowed to receive retirement credit by reason of section 8347(g) or 8402(c) of such title 5. (3) Deposit requirement.--Credit for a period of service may not be given under this subsection unless the individual involved makes a deposit, in such manner as the Office of Personnel Management may by regulation require, equal to the employee contributions that would have been required (in the case of a firefighter) for such period under section 8334(c) or 8422(a) of such title 5, with interest. (4) Certification.--The Office of Personnel Management shall accept the certification of the Secretary of the Interior or the Secretary of Agriculture, as the case may be, concerning whether an individual performed qualifying firefighter service and the length of the period of such service the individual performed. SEC. 8. FIREFIGHTER LIABILITY. (a) Inspector General Investigation of Firefighter Deaths.-- (1) Forest service employees.--In the case of each fatality of a firefighter or other employee of the Forest Service due to wildfire entrapment or burrower, the Inspector General of the Department of Agriculture shall conduct an investigation of the fatality. (2) Department of the interior employees.--In the case of each fatality of a firefighter or other employee of the Bureau of Land Management, the Bureau of Indian Affairs, the United States Fish and Wildlife Service, or the National Park Service due to wildfire entrapment or burrower, the Inspector General of the Department of the Interior shall conduct an investigation of the fatality. (b) Investigation Procedures and Protocols.--Not later than 60 days after the date of the enactment of this Act, the Inspector Generals of the Department of Agriculture and the Department of the Interior shall publish the procedures and protocols to be used to conduct fatality investigations required by subsection (a). The procedures and protocols shall outline the training, experience, and expertise necessary to serve as an investigator conducting a fatality investigation. (c) Training.--The Inspector Generals of the Department of Agriculture and the Department of the Interior shall ensure that persons assigned to conduct a fatality investigation required by subsection (a) have the necessary training, skills, and experience to competently conduct the investigation. (d) Independence.--An investigation of a fatality under this section shall not rely on, and shall be completely independent of, any investigation conducted by the head of the land management agency whose employee was killed. (e) Submission of Results.--Not later than 30 days after completing an investigation under subsection (a), the Inspector General conducting the investigation shall submit to the Committee on Agriculture, Nutrition, and Forestry and the Committee on Energy and Natural Resources of the Senate, the Committee on Natural Resources of the House of Representatives, the Secretary of Agriculture, and the Secretary of the Interior a report containing the results of the investigation. The investigations and accompanying reports shall be used by all land management agency fire programs to build upon the concept of lessons learned from the fire event. It is not the intent of Congress that the investigations and reports would be used to find fault or place blame for a fatality, but rather to recognize that wildland firefighting is an inherently dangerous occupation and to reduce the number of fatalities from due to wildfire entrapment or burrower. (f) Repeal of Former Investigation Requirement.--Public Law 107-203 (7 U.S.C. 2270b, 2270c) is repealed. <all>