I 

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 nonFederal 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘National Wildfire Infrastructure Improvement and Cost 

4 Containment Act’’. 

5 (b) TABLE OF CONTENTS.—The table of contents is 

6 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. 

7 SEC. 2. DEFINITIONS. 

8 For the purposes of this Act— 

9 (1) the term ‘‘wildland firefighter’’ means an 

10 employee of a Federal land management agency, the 

11 duties of whose position are primarily to perform 

12 work directly related to the prevention, control, sup13 pression, and management of wildfires, including— 

14 (A) an employee of a Federal land man15 agement agency who is assigned to support 

16 wildland fire suppression activities; and 

17 (B) an employee who is transferred to a 

18 supervisory or administrative position from a 

19 position of wildland firefighter (as defined by 

20 the preceding provisions of this paragraph); 

21 (2) the term ‘‘Federal land management agen22 cy’’ means— 

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1 (A) within the Department of the Interior, 

2 the Bureau of Land Management, the Bureau 

3 of Indian Affairs, the National Park Service, 

4 and the Fish and Wildlife Service; and 

5 (B) within the Department of Agriculture, 

6 the Forest Service; and 

7 (3) the term ‘‘employee’’ has the meaning given 

8 such term by section 2105 of title 5, United States 

9 Code. 

10 SEC. 3. FINDINGS. 

11 Congress finds the following: 

12 (1) Significant losses of Federal wildland fire13 fighters to non-Federal fire agencies have been expe14 rienced by all 5 Federal land management agencies 

15 over the last several years. Federal land manage16 ment agencies have failed to take actions within 

17 their authority to reduce or eliminate such losses de18 spite being aware of the issues and solutions for over 

19 20 years. 

20 (2) These losses have primarily been the result 

21 of Federal wildland firefighters leaving the Federal 

22 system for better pay and benefits offered by State 

23 and local fire agencies, particularly in the 11 west24 ern contiguous States. Pay and benefits for Federal 

25 wildland firefighters have not kept pace with other 

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1 fire agencies, which continue to offer significantly 

2 higher pay and benefits to attract Federal fire3 fighters. 

4 (3) These firefighter losses have resulted in sig5 nificant vacancies in critical fire positions, resulting 

6 in reduced levels of personnel and other resources 

7 within the Federal sector as compared to those envi8 sioned by the National Fire Plan. 

9 (4) Federal wildland firefighting resources are, 

10 by and large, inherently less costly to the Federal 

11 Government than the use of non-Federal resources. 

12 Therefore it stands to reason that strengthening the 

13 inherently less expensive Federal infrastructure will 

14 allow Federal land management agencies to reduce 

15 their reliance on higher-priced non-Federal resources 

16 and ultimately reduce wildfire suppression costs. 

17 (5) Federal land management agencies have 

18 failed to maintain Federal wildland firefighter staff19 ing and resource levels pursuant to the National 

20 Fire Plan and its ‘‘Most Efficient Level’’ (MEL) as 

21 envisioned by Congress. 

22 (6) It is incumbent upon Congress and the Fed23 eral Government to provide America’s taxpayers 

24 with the most fiscally effective and efficient wildland 

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1 fire programs managed by the five Federal land 

2 management agencies. 

3 SEC. 4. MANDATORY SEPARATION. 

4 Section 8425(b) of title 5, United States Code, is 

5 amended— 

6 (1) by redesignating the last paragraph as 

7 paragraph (3); and 

8 (2) by adding at the end the following: 

9 ‘‘(4)(A) In the case of a wildland firefighter, para10 graph (1) shall be applied— 

11 ‘‘(i) by striking ‘becomes 57 years of age or 

12 completes 20 years of service if then over that age.’ 

13 and inserting ‘(A) becomes 65 years of age or com14 pletes 20 years of service if then over that age, or 

15 (B) is certified by a licensed physician as being un16 able to successfully complete all applicable physical 

17 standards testing as directed by the employing agen18 cy.’; and 

19 ‘‘(ii) by disregarding the second sentence. 

20 ‘‘(B) For purposes of this paragraph, the term 

21 ‘wildland firefighter’ has the meaning given such term by 

22 section 2 of the National Wildfire Infrastructure Improve23 ment and Cost Containment Act.’’. 

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1 SEC. 5. EQUAL PROTECTION UNDER THE LAW FROM OUT2 SOURCING. 

3 (a) PURPOSE.—To amend section 2465 of title 10, 

4 United States Code, to add the Department of Agriculture 

5 (United States Forest Service) and the Department of the 

6 Interior (Bureau of Land Management, Bureau of Indian 

7 Affairs, National Park Service, Fish and Wildlife Service) 

8 to the Department of Defense as agencies bound by the 

9 provisions set forth in subsection (a) of that section. 

10 (b) FINDINGS.—Congress makes the following find11 ings: 

12 (1) Federal firefighters employed by the De13 partment of Defense enjoy certain protections from 

14 the outsourcing, or ‘‘contracting out’’ of their posi15 tions under section 2465 of title 10, United States 

16 Code. 

17 (2) A number of feasibility studies performed 

18 over many years at significant taxpayer expense 

19 have clearly shown that outsourcing, or ‘‘contracting 

20 out’’ services historically performed by Federal fire21 fighters in a variety of agencies including the De22 partment of Defense, the Department of Agriculture, 

23 and the Department of the Interior is neither cost24 effective or efficient. 

25 (3) The specialization and unique responsibil26 ities of protecting the Nation’s Federal assets, inmstockstill on DSKH9S0YB1PROD with BILLS

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1 cluding natural resources, demand the experience 

2 and expertise of well-trained, cost-effective Federal 

3 firefighters. 

4 (4) All Federal firefighters from all Federal 

5 agencies should enjoy equal protection under the 

6 law. 

7 (5) Congress concurs with the Undersecretary 

8 of Agriculture for Natural Resources and the Envi9 ronment who indicated on July 14, 2008, that 

10 wildland firefighting is an ‘‘inherent government 

11 function’’. 

12 (c) REQUIREMENT.— 

13 (1) IN GENERAL.—Section 2465(a) of title 10, 

14 United States Code, is amended— 

15 (A) by inserting after ‘‘Department of De16 fense’’ the following: ‘‘the Department of Agri17 culture, the Department of the Interior, the De18 partment of Veterans Affairs, the National In19 stitute of Health, or any other Federal depart20 ment or agency that employs firefighters’’; and 

21 (B) by striking ‘‘at any military installa22 tion or facility’’ and inserting the following: 

23 ‘‘that are performed, as of the date of the en24 actment of the National Wildfire Infrastructure 

25 Improvement and Cost Containment Act by a 

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1 Federal employee of any such department or 

2 agency at any location, including military in3 stallations and facilities, national forests, na4 tional parks, and all other locations where the 

5 services of Federal firefighters or security 

6 guards are required or requested’’. 

7 (2) EFFECTIVE DATE.—The amendments made 

8 by paragraph (1) shall apply with respect to a con9 tract for the performance of firefighting or security 

10 guard functions entered into on or after the date of 

11 the enactment of this Act. 

12 SEC. 6. CLASSIFICATION OF WILDLAND FIREFIGHTERS. 

13 (a) REQUIREMENTS.— 

14 (1) IN GENERAL.—Within 30 days after the 

15 date of the enactment of this Act, the Office of Per16 sonnel Management, in cooperation with the Federal 

17 land management agencies, shall commence develop18 ment of a separate and distinct wildland firefighter 

19 occupational series that will more accurately reflect 

20 the variety of duties performed by wildland fire21 fighters. 

22 (2) DESIGNATION.—The official title assigned 

23 to any occupational series established pursuant to 

24 paragraph (1) shall include the designation of 

25 ‘‘Wildland Firefighter’’. 

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1 (3) POSITIONS DESCRIBED.—Paragraph (1) ap2 plies with respect to any class or other category of 

3 positions that consists primarily or exclusively of for4 estry technician positions, range technician posi5 tions, or any other positions the duties and respon6 sibilities of which include— 

7 (A) significant wildfire preparedness and 

8 suppression activities; or 

9 (B) activities necessary to meet any other 

10 emergency incident to which assigned. 

11 (4) CONSULTATION.—Congress encourages the 

12 Office of Personnel Management to include recog13 nized employee organizations, employee associations, 

14 and any other groups that represent Federal 

15 wildland firefighters in carrying out this subsection. 

16 (b) HAZARDOUS DUTY DIFFERENTIAL NOT AF17 FECTED.—Section 5545(d)(1) of title 5, United States 

18 Code, is amended by striking all after ‘‘except’’ and insert19 ing an em-dash and the following: 

20 ‘‘(A) an employee in an occupational series 

21 covering positions for which the primary duties 

22 are wildland firefighting, as determined by the 

23 Office; and 

24 ‘‘(B) in such other circumstances as the 

25 Office may by regulation prescribe; and’’. 

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1 (c) EMPLOYEES CURRENTLY IN 401 SERIES.—Any 

2 individual who, as of the date of the enactment of this 

3 Act, holds a position of wildland firefighter shall have the 

4 option of either remaining in the 401 series (as in effect 

5 on such date under chapter 51 of title 5, United States 

6 Code) or being included in the new wildland firefighter se7 ries, as established pursuant to subsection (a). 

8 SEC. 7. PAY AND BENEFITS. 

9 (a) FINDINGS.— 

10 (1) Along with proper classification, pay and 

11 benefits are the main reasons why wildland fire12 fighters are leaving Federal service. 

13 (2) Wildland firefighters responding to emer14 gency incidents do not receive portal-to-portal pay, 

15 even though their own employing agencies often 

16 compensate higher-paid non-Federal firefighters on 

17 the same incident with portal-to-portal pay. This dis18 parity in treatment adversely affects morale among 

19 wildland firefighters, causing many of them to leave 

20 Federal service. 

21 (3) Wildland firefighters are often restricted to 

22 fire camps or left on fire lines while being taken ‘‘off 

23 the clock’’, with no opportunity to use their own 

24 time as they wish, despite provisions of the Fair 

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1 Labor Standards Act which clearly state that such 

2 situations are compensable. 

3 (4) Supervisors are expected to remain respon4 sible for their crews 24 hours a day while on assign5 ment and to ensure that their crews are able to re6 spond at a moment’s notice, even when both super7 visors and crew members are in a non-pay status. 

8 (5) Wildland firefighters must remain available 

9 and ‘‘fit to work’’ 24 hours a day in case of imme10 diate need, even when ‘‘off the clock’’ and uncom11 pensated. 

12 (6) Developing, maintaining, and retaining 

13 skilled personnel in the Federal wildland firefighting 

14 agencies is a growing problem that jeopardizes pub15 lic safety and the effectiveness of wildland fire pre16 paredness and suppression efforts across the Nation. 

17 (b) PORTAL-TO-PORTAL COMPENSATION PILOT PRO18 GRAM.— 

19 (1) IN GENERAL.—In the case of a wildland 

20 firefighter, for full-time, part-time, and intermittent 

21 tours of duty, hours of work officially ordered or ap22 proved in excess of 40 hours per week or 8 hours 

23 per day shall be considered overtime work, inclusive 

24 of all time the firefighter is away from their official 

25 duty station assigned to an emergency incident, in 

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1 support of an emergency incident, or pre-positioned 

2 for emergency response, and shall be compensable as 

3 work time in accordance with 5542(a) of title 5, 

4 United States Code, as amended by paragraph 

5 (2)(A). 

6 (2) REQUIREMENTS.— 

7 (A) AMENDMENT TO TITLE 5.—Section 

8 5542(a) of title 5, United States Code, is 

9 amended by adding at the end (as a flush left 

10 sentence) the following: 

11 ‘‘Notwithstanding paragraphs (1) and (2), for a wildland 

12 firefighter assigned to an emergency incident, assigned in 

13 support of an emergency incident, or pre-positioned for 

14 emergency response, the overtime hourly rate of pay is an 

15 amount equal to one and one-half times the hourly rate 

16 of the basic pay of the employee, and that entire amount 

17 is premium pay’’. 

18 (B) FAIR LABOR STANDARDS ACT OF

19 1938.—For the purpose of applying the provi20 sions of the Fair Labor Standards Act of 1938 

21 with respect to wildland firefighters, no viola22 tion referred to in such provisions shall be con23 sidered to have occurred if the requirements de24 scribed in subparagraph (A) are met. 

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1 (C) FUNDING.—There is authorized to be 

2 appropriated $25,000,000 to initiate a portal3 to-portal pilot program under this subsection, 

4 commencing with the 2010 wildfire season. Any 

5 sums required in addition to amounts appro6 priated pursuant to the preceding sentence may 

7 be secured from the existing wildfire suppres8 sion budget for the fiscal year in which the sea9 son occurs. 

10 (D) DURATION.—The pilot program shall 

11 be carried out by the Department of the Inte12 rior and the Department of Agriculture for a 

13 period not to exceed 3 calendar years beginning 

14 as of the start of the 2010 wildfire season. 

15 (E) REPORT.—At the end of the pilot pro16 gram, the Secretary of the Interior and the Sec17 retary of Agriculture shall submit to Congress 

18 a joint report on the effectiveness of the pilot 

19 program. Such report shall specifically address 

20 the effect of the program with respect to— 

21 (i) recruitment and retention of 

22 wildland firefighters; and 

23 (ii) any cost savings. 

24 (F) ADDITIONAL REQUIREMENTS.—To en25 sure adequate funding and to realize maximum 

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1 wildfire suppression savings, the Secretary of 

2 the Interior and the Secretary of Agriculture 

3 shall take appropriate measures to provide that 

4 total funding for non-Federal fire suppression 

5 resources by their respective Departments— 

6 (i) for the first year of the pilot pro7 gram, do not exceed 90 percent of their 

8 combined non-Federal fire suppression 

9 costs for the 2008 and 2009 wildfire sea10 sons; 

11 (ii) for the second year of the pilot 

12 program, do not exceed 75 percent of their 

13 combined non-Federal fire suppression 

14 costs for the 2008 and 2009 wildfire sea15 sons; and 

16 (iii) for the third year of the pilot pro17 gram, do not exceed 65 percent of their 

18 combined non-Federal fire suppression 

19 costs for the 2008 and 2009 wildfire sea20 sons. 

21 (G) EXEMPTION.—Employees compensated 

22 under the pilot program shall, for the period of 

23 such program, be exempt from any limitation 

24 on premium pay under section 5547 of title 5, 

25 United States Code. 

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1 (c) HAZARDOUS DUTY DIFFERENTIAL TO BE

2 TREATED AS PART OF A WILDLAND FIREFIGHTER’S

3 BASE PAY FOR RETIREMENT PURPOSES.— 

4 (1) IN GENERAL.—Section 8331(3) of title 5, 

5 United States Code is amended— 

6 (A) in subparagraph (G), by striking 

7 ‘‘and’’ at the end; 

8 (B) in subparagraph (H), by inserting 

9 ‘‘and’’ at the end; and 

10 (C) by adding after subparagraph (H) the 

11 following: 

12 ‘‘(I) with respect to a wildland firefighter 

13 (as defined by section 2 of the National Wild14 fire Infrastructure Improvement and Cost Con15 tainment Act), any pay differential received 

16 under section 5545(d);’’. 

17 (2) CONFORMING AMENDMENT.—Such section 

18 8331(3) is further amended, in the matter following 

19 subparagraph (I) (as added by paragraph (1)(C)), 

20 by striking ‘‘subparagraphs (B) through (H) of this 

21 paragraph’’ and inserting ‘‘subparagraphs (B) 

22 through (I),’’. 

23 (d) HAZARDOUS DUTY DIFFERENTIAL.— 

24 (1) IN GENERAL.—In the administration of sec25 tion 5545(d) of title 5, United States Code, the Ofmstockstill on DSKH9S0YB1PROD with BILLS

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1 fice of Personnel Management shall take such meas2 ures as may be necessary to ensure that, under the 

3 schedule or schedules of pay differentials for duty 

4 involving unusual physical hardship or hazard, a pay 

5 differential of 25 percent shall be payable to an indi6 vidual while serving as a member of a wildland fire7 fighting crew. 

8 (2) DEFINITION.—For purposes this sub9 section, the term ‘‘wildland firefighting crew’’ in10 cludes ground (hand crew, hotshot, engine, and 

11 other fire apparatus personnel) and airborne (smoke 

12 jumper or helitack) firefighting personnel on the fire 

13 line of any wildfire or prescribed fuel treatment burn 

14 or fire, as further defined in regulations of the Of15 fice. 

16 (e) BENEFITS FOR SEASONAL WILDLAND FIRE17 FIGHTERS.— 

18 (1) PROVISIONS RELATING TO LIFE INSUR19 ANCE.—Section 8716(b) of title 5, United States 

20 Code, is amended— 

21 (A) in paragraph (2), by striking ‘‘or’’ at 

22 the end; 

23 (B) in paragraph (3), by striking the pe24 riod at the end and inserting ‘‘; or’’; and 

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1 (C) by adding after paragraph (3) the fol2 lowing: 

3 ‘‘(4) a wildland firefighter within the meaning 

4 of section 2 of the National Wildfire Infrastructure 

5 Improvement and Cost Containment Act.’’. 

6 (2) PROVISIONS RELATING TO HEALTH BENE7 FITS.—Section 8906a of title 5, United States Code, 

8 is amended by adding at the end the following: 

9 ‘‘(c)(1) For purposes of this subsection, the term 

10 ‘wildland firefighter’ has the meaning given such term by 

11 section 2 of the National Wildfire Infrastructure Improve12 ment and Cost Containment Act. 

13 ‘‘(2) In the case of a wildland firefighter— 

14 ‘‘(A) subsection (a)(2) shall be applied by sub15 stituting ‘cumulative’ for ‘current continuous’; and 

16 ‘‘(B) an individual is deemed not to have ceased 

17 to be a wildland firefighter during an interim period 

18 between wildfire seasons if such individual shows to 

19 the satisfaction of the Office of Personnel Manage20 ment that such individual has a bona fide intention 

21 of continuing as a wildland firefighter immediately 

22 after such period, subject to section 8906(e)(1).’’. 

23 (f) BUY BACK OF CIVILIAN TIME AFTER 1989.— 

24 (1) IN GENERAL.—Any individual who is sub25 ject to the Federal Employees’ Retirement System 

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1 as a firefighter (within the meaning of section 8401 

2 of title 5, United States Code) on the date of the en3 actment of this Act shall be entitled to have any 

4 qualifying firefighter service treated as creditable 

5 service under section 8411 of such title. 

6 (2) QUALIFYING FIREFIGHTER SERVICE.—For 

7 purposes of this subsection, the term ‘‘qualifying 

8 firefighter service’’ means, in connection with an in9 dividual, any service— 

10 (A) which was performed by such indi11 vidual, as a wildland firefighter, after 1989 and 

12 before the date of the enactment of this Act; 

13 and 

14 (B) for which such individual was not al15 lowed to receive retirement credit by reason of 

16 section 8347(g) or 8402(c) of such title 5. 

17 (3) DEPOSIT REQUIREMENT.—Credit for a pe18 riod of service may not be given under this sub19 section unless the individual involved makes a de20 posit, in such manner as the Office of Personnel 

21 Management may by regulation require, equal to the 

22 employee contributions that would have been re23 quired (in the case of a firefighter) for such period 

24 under section 8334(c) or 8422(a) of such title 5, 

25 with interest. 

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1 (4) CERTIFICATION.—The Office of Personnel 

2 Management shall accept the certification of the 

3 Secretary of the Interior or the Secretary of Agri4 culture, as the case may be, concerning whether an 

5 individual performed qualifying firefighter service 

6 and the length of the period of such service the indi7 vidual performed. 

8 SEC. 8. FIREFIGHTER LIABILITY. 

9 (a) INSPECTOR GENERAL INVESTIGATION OF FIRE10 FIGHTER DEATHS.— 

11 (1) FOREST SERVICE EMPLOYEES.—In the case 

12 of each fatality of a firefighter or other employee of 

13 the Forest Service due to wildfire entrapment or 

14 burrower, the Inspector General of the Department 

15 of Agriculture shall conduct an investigation of the 

16 fatality. 

17 (2) DEPARTMENT OF THE INTERIOR EMPLOY18 EES.—In the case of each fatality of a firefighter or 

19 other employee of the Bureau of Land Management, 

20 the Bureau of Indian Affairs, the United States 

21 Fish and Wildlife Service, or the National Park 

22 Service due to wildfire entrapment or burrower, the 

23 Inspector General of the Department of the Interior 

24 shall conduct an investigation of the fatality. 

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1 (b) INVESTIGATION PROCEDURES AND PROTO2 COLS.—Not later than 60 days after the date of the enact3 ment of this Act, the Inspector Generals of the Depart4 ment of Agriculture and the Department of the Interior 

5 shall publish the procedures and protocols to be used to 

6 conduct fatality investigations required by subsection (a). 

7 The procedures and protocols shall outline the training, 

8 experience, and expertise necessary to serve as an investi9 gator conducting a fatality investigation. 

10 (c) TRAINING.—The Inspector Generals of the De11 partment of Agriculture and the Department of the Inte12 rior shall ensure that persons assigned to conduct a fatal13 ity investigation required by subsection (a) have the nec14 essary training, skills, and experience to competently con15 duct the investigation. 

16 (d) INDEPENDENCE.—An investigation of a fatality 

17 under this section shall not rely on, and shall be com18 pletely independent of, any investigation conducted by the 

19 head of the land management agency whose employee was 

20 killed. 

21 (e) SUBMISSION OF RESULTS.—Not later than 30 

22 days after completing an investigation under subsection 

23 (a), the Inspector General conducting the investigation 

24 shall submit to the Committee on Agriculture, Nutrition, 

25 and Forestry and the Committee on Energy and Natural 

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1 Resources of the Senate, the Committee on Natural Re2 sources of the House of Representatives, the Secretary of 

3 Agriculture, and the Secretary of the Interior a report 

4 containing the results of the investigation. The investiga5 tions and accompanying reports shall be used by all land 

6 management agency fire programs to build upon the con7 cept of lessons learned from the fire event. It is not the 

8 intent of Congress that the investigations and reports 

9 would be used to find fault or place blame for a fatality, 

10 but rather to recognize that wildland firefighting is an in11 herently dangerous occupation and to reduce the number 

12 of fatalities from due to wildfire entrapment or burrower. 

13 (f) REPEAL OF FORMER INVESTIGATION REQUIRE14 MENT.—Public Law 107–203 (7 U.S.C. 2270b, 2270c) is 

15 repealed. 

Æ 

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