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[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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