[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.
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