112th Congress 1st Session

IN THE HOUSE OF REPRESENTATIVES XXXXX, 2011 DRAFT # 4 A BILL To strengthen and restore the infrastructure of the federal land management agency wildfire response pursuant to the National Fire Plan resulting in a more efficient & cost effective use of appropriated wildfire preparedness and suppression funds resulting in significant annual savings in wildfire suppression costs. 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 FIRE SUPPRESSION COST CONTAINMENT ACT

Sec. 1. Short Title; table of contents Sec. 2. Definitions Sec. 3. Findings Sec. 4. Classification of federal wildland firefighters Sec. 5. Pay & benefits Sec. 6 Forest Service firefighter liability Sec. 7 Land Management Agency Fire & Aviation Management Reorganization

SECTION 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 Sec. 2105 of Title 5, United States Code.

4) The term Line Officer has the meaning given such by Forest Service Manual 1200, specifically 1230.41-Line Officers.

SECTION 3. FINDINGS Congress finds the following: 1) Significant losses of federal wildland firefighters to non-federal fire agencies for better pay & benefits, mandatory & early retirement, coupled with fiscal mismanagement of appropriated fire dollars has led to the unsustainable,

needless skyrocketing of wildfire suppression expenditures.

2) Federal land management agencies continue to provide authority to those, hereinafter referred to as Line Officers, for FIRE program management; FIRE funding allocation and FIRE program policy development & implementation despite limited or even non-existent cumulative experience & expertise in wildland fire management by said Line Officers. Such an organizational structure cannot meet the complexities of responding effectively & efficiently to 21st century wildfires. 3) It is incumbent upon Congress and the Federal Government to provide Americas taxpayers with the most fiscally effective and efficient delivery of its federal wildfire response.

SECTION 4. CLASSIFICATION OF WILDLAND FIREFIGHTERS A) Requirements-

1) IN GENERAL- Within 30 days after the enactment of this Act, the Office of Personnel Management, in cooperation with federal land management agencies as previously defined, shall commence the development of a separate and distinct wildland firefighter occupational series that will more accurately reflect the variety of duties performed by todays federal 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 currently consist primarily or exclusively of Forestry Technicians, Range technicians, or any other positions the duties and responsibilities of which include

a) Significant wildfire preparedness and suppression activities; or

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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 unions under Title 5 USC which include federal wildland firefighters in their collective bargaining unit as well as 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 the 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).

SECTION 5. PAY & BENEFITS a) Findings1) Strengthening the federal infrastructure pursuant to the National Fire Plan by implementing the following reforms will provide federal land management agencies the option of reducing their current over-reliance on many higher-priced non-federal resources thereby saving significant suppression costs each wildfire season. 2) 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 which leads to increased costs.

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, the 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 IAW 5542(a) of title 5, United States Code, as amended by paragraph (2)(A).

2) REQUIREMENTSA) AMENDMENT TO TITLE 5-Section 5542 (a) of title 5, United States Code, is amended by adding at the end (as 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 basic pay of the employee, and that entire amount is premium pay. B) FAIR LABOR STANDARDS ACT OF 1938- For the purposes 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) The pilot program shall be carried out by the Department of Interior and Department of Agriculture for a period NTE 3 calendar years beginning with the 2011 wildfire season. At any time during the pilot program, Congress may act to make the portal to portal program permanent. D) FUNDING-Notwithstanding any other provision of law, there shall be
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made available from the FLAME Wildfire Suppression Reserve Fund an amount sufficient to carry out and comply with the provisions of this section.

To offset costs associated with said pilot program, the Secretaries of Agriculture and Interior, jointly or individually, may, at their discretion, direct the following actions:

1) During the 3-year pilot program, the Secretaries may offset funds expended by the FLAME Act for the purposes of this section by:

a) Directing Agency personnel to amend cooperative agreements between the federal land management agencies and cooperating agencies i.e. State, local government by offering reimbursement rates for all non-federal resource costs at a level identical to that paid for commensurate federal resources. b) Reducing or eliminating Admin Fees and backfill costs and any and all other peripheral, additional costs traditionally paid by the federal government to cooperating, contracting agencies. c) Reducing said non-federal resource costs by an amount equivalent to the cost of funds made available from the FLAME Act. d) Notwithstanding subsections (a), (b) & (c), Agency Secretaries may direct their fire program managers to produce offsets that exceed the amounts made available from the FLAME Act in an effort to reduce and contain wild fire suppression costs even further. 2) The determination as to whether to identify offsets to cover the costs associated with the implementation of the portal to portal compensation pilot program will rest solely with the Agency Secretary.

E)

REPORT- At the end of the pilot program, the Secretaries of Agriculture & Interior shall submit to Congress a joint report including the costs per wildfire season of the portal to portal compensation

program; the effectiveness of the program on federal wildland firefighter retention & recruitment and, overall wildfire suppression cost savings achieved. F) 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, USC.

(c)Hazardous Duty Differential to be Treated as Part of a Wildland Firefighters 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 and the end; (B) in subparagraph (H), by inserting and at the end; and (C) by adding after paragraph (H) the following: (I) with respect to a wildland firefighter (as defined by section 2 of this 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 federal wildland firefighting crew. Further(2) IN GENERAL- In the Administration of title 5, United States Code, the Director of the Office of Personnel Management shall, through the promulgation of appropriate regulations, amend item (1) under Firefighting-FOREST & RANGE FIRES in APPENDIX A to Subpart I-PAY FOR DUTY INVOLVING PHISICAL HARDSHIP OR
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HAZARD of Part 550 by adding after (1) Forest and range fires. The following: Participating as a member of a wildland firefighting crew, including but not limited to ground (hand crew, hotshot, engine and other fire apparatus personnel) and airborne (smokejumpers & helitack) firefighting personnel on the fire line of any wildfire or prescribed, fuel treatment burn/fire. (2) DEFINITION- For purposes of this subsection, the term wildland firefighting crew includes ground (hand crew, hotshot, engine and other fire apparatus personnel) and airborne (smokejumper and/or helitack) firefighting personnel on the fire line on 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 and 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 this Act.

(2) PROVISIONS RELATING TO HEALTH BENEFITS- Section 8906(a) 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 this Act. (c)(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 said 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 January 1,1989(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 FIREFIGHTERR 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 January 1, 1989 and before the date of this 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 title 5, United states Code. (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 a 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 title 5, with interest. (4) CERTIFICATION- The Office of Personnel Management shall accept the certification of the Secretary of Interior or 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.

SECTION 6- FOREST SERVICE FIREFIGHTER LIABILITY FIREFIGHTER LIABILITY-Forest Service Investigation of Firefighter Deaths IAW PL 107-2031) Congress recognizes that the provisions set forth under PL 107-203 have in fact not achieved their stated goals of improving Forest Service wildland firefighter safety. 2) Further, Congress and the United States Department of Agriculture (USDA) have
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acknowledged that PL 107-203 has resulted in unintended consequences which have compromised the effective management of many wildland fires. 3) Additionally, PL 107-203 has placed an undue burden on Forest Service wildland firefighters by recognizing them as the only paid firefighters in the United States likely to be subjected to criminal prosecution in the event of a fatal wildfire for making split-second decisions under some of the most extreme, hostile conditions. 4) PL 107-203 is hereby repealed

SECTION 7REORGANIZATION OF LAND MANAGEMENT AGENCY FIRE & AVIATION MANAGEMENT 1. PURPOSE: To increase the effectiveness and efficiency of land management agency FIRE and Aviation Management (FAM) Programs, and to ensure that Wildland Fire Preparedness (WFPR) Funding allocated to said agencies is appropriately utilized and not misappropriated on non WFPR programs. 2. FINDINGS: Currently, employees of the Forest Service specifically those employed in FAM are assigned to work for Agency Line Officers. The majority of these Line Officers have little to no experience, training or expertise in the arena of fire management or FAM assets. This leads to a disconnect between the various levels of FAM management as each level and separate units report to varying levels of Line Officer authority and expertise. This creates a loss of efficiency and effectives in the FAM program as the FAM program is managed by Line Officers who do not possess the needed education, training or experience to manage FAM activities. To a lesser extent and subsequently a lesser impact, a similar organizational structure also impedes the effective and efficient delivery of a wildfire response within the 4 Department of Interior land management agencies and as such similar program changes are directed for the Bureau of Land Management, National Park Service, Bureau of Indian Affairs and Fish & Wildlife Service. As envisioned by the National Fire Plan of 2000 (NFP) and directed by the Forest Service Manual (FSM), WFPR funding is to be used solely for the purpose of Wildland Fire Preparedness infrastructure and activities. FS Line Officers who have authority over WFPR funds systematically reallocate such funding into other non-FIRE project areas. This reduces the funding required to maintain a level of wildland fire

preparedness as envisioned by the NFP in order to keep fires small & less costly thereby reducing wildfire suppression costs. 3. REQUIREMENTS: IN GENERAL within 30 days after the date of the enactment of this Act, the Forest Service and applicable Department of Interior land management agencies shall amend all applicable guidance to remove Line Officer authority for Wildland Fire Preparedness and Suppression and reestablish that authority in the order of Chief of the FS (for the Forest Service), Director of FAM, Regional Directors for FAM, Forest Fire Management Officers to District Fire Management Officers. In the case of Department of Interior agencies, a similar structure will be developed. Requires that all infrastructure currently retained and occupied by FAM employees remain in support FAM personnel and function. Requires that all service and support previously rendered by National, Regional, Forest and District offices continue to support for FAM employees and functions. END

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