1.Short title; table of
contents
(a)This Act may be cited
as the National Wildfire
Infrastructure Improvement and Cost Containment
Act
.
(b)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.
2.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.
3.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.
4.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.
.
5.Equal protection under
the law from outsourcing
(a)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)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)
(1)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)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.
6.Classification of
wildland firefighters
(a)
(1)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)The
official title assigned to any occupational series established pursuant to
paragraph (1) shall include the designation of Wildland
Firefighter
.
(3)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)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 affectedSection 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 seriesAny
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).
7.
(a)
(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 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)
(A)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 1938For 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)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)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)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)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)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)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)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 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)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 insuranceSection 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 benefitsSection 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)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 serviceFor 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)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)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.
8.
(a)Inspector
general investigation of firefighter deaths
(1)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 employeesIn 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 protocolsNot 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)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)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)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 requirementPublic Law 107–203 (7 U.S.C. 2270b,
2270c) is repealed.