FWFSA Legislative Draft

8/6/2019 FWFSA Legislative Draft

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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 workdirectly related to the prevention, control, suppression and management of wildfires, including

a) An employee of a federal land management agency who is assigned tosupport wildland fire suppression activities; and

b) An employee who is transferred to a supervisory or administrative positionfrom 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, theBureau of Indian Affairs, the National Park Service, and the Fish and WildlifeService, 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 Manual1200, 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 fiscalmismanagement of appropriated fire dollars has led to the unsustainable,


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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; FIREfunding allocation and FIRE program policy development & implementationdespite limited or even non-existent cumulative experience & expertise inwildland fire management by said Line Officers. Such an organizationalstructure cannot meet the complexities of responding effectively & efficiently to21 st century wildfires.

3) It is incumbent upon Congress and the Federal Government to provideAmericas taxpayers with the most fiscally effective and efficient delivery of itsfederal 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 managementagencies as previously defined, shall commence the development of aseparate and distinct wildland firefighter occupational series that will moreaccurately reflect the variety of duties performed by todays federalwildland firefighters.

2) DESIGNATION-The official title assigned to any occupational seriesestablished pursuant to paragraph (1) shall include the designation of wildland firefighter.

3) POSITIONS DESCRIBED- Paragraph (1) applies with respect to anyclass 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 whichassigned.

4) CONSULTATION-Congress encourages the Office of PersonnelManagement to include recognized employee unions under Title 5 USC

which include federal wildland firefighters in their collective bargaining unitas well as employee associations and any other groups that representfederal 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 anem-dash and the following:

a) An employee in an occupational series covering positions for which theprimary 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 thedate 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 effecton such date under chapter 51 of Title 5 United States Code) or beingincluded in the new wildland firefighter series as established pursuantto subsection (a).

SECTION 5. PAY & BENEFITS

a) Findings-

1) Strengthening the federal infrastructure pursuant to the National Fire Planby implementing the following reforms will provide federal landmanagement agencies the option of reducing their current over-relianceon many higher-priced non-federal resources thereby saving significantsuppression costs each wildfire season.

2) Developing, maintaining and retaining skilled personnel in the federalwildland firefighting agencies is a growing problem that jeopardizes public


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safety and the effectiveness of wildland fire preparedness andsuppression 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-timeand 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 beconsidered overtime work, inclusive of all time the firefighter is away fromtheir official duty station assigned to an emergency incident, in support of an emergency incident, or pre-positioned for emergency response, andshall be compensable as work time IAW 5542(a) of title 5, United StatesCode, as amended by paragraph (2)(A).

2) REQUIREMENTS-

A) AMENDMENT TO TITLE 5-Section 5542 (a) of title 5, United StatesCode, is amended by adding at the end (as flush left sentence) thefollowing:

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 amountequal to one and one-half times the hourly rate of basic pay of the employee, and thatentire 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 withrespect to wildland firefighters, no violation referred to in suchprovisions shall be considered to have occurred if the requirementsdescribed 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 yearsbeginning with the 2011 wildfire season. At any time during the pilotprogram, Congress may act to make the portal to portal programpermanent.

D) FUNDING-Notwithstanding any other provision of law, there shall be

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made available from the FLAME Wildfire Suppression Reserve Fundan amount sufficient to carry out and comply with the provisions of thissection.

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 fundsexpended by the FLAME Act for the purposes of this section by:

a) Directing Agency personnel to amend cooperative agreementsbetween the federal land management agencies andcooperating agencies i.e. State, local government by offeringreimbursement rates for all non-federal resource costs at alevel identical to that paid for commensurate federal resources.

b) Reducing or eliminating Admin Fees and backfill costs andany and all other peripheral, additional costs traditionally paidby the federal government to cooperating, contracting agencies.

c) Reducing said non-federal resource costs by an amountequivalent to the cost of funds made available from the FLAMEAct.

d) Notwithstanding subsections (a), (b) & (c), Agency Secretariesmay direct their fire program managers to produce offsets thatexceed the amounts made available from the FLAME Act in aneffort to reduce and contain wild fire suppression costs evenfurther.

2) The determination as to whether to identify offsets to cover thecosts associated with the implementation of the portal to portalcompensation pilot program will rest solely with the AgencySecretary.

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


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program; the effectiveness of the program on federal wildlandfirefighter retention & recruitment and, overall wildfire suppression costsavings achieved.

F) EXEMPTION-Employees compensated under the pilot program shall,

for the period of such program, be exempt from any limitation onpremium pay under section 5547 of title 5, USC.

(c)Hazardous Duty Differential to be Treated as Part of a WildlandFirefighters 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 thisAct), 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, UnitedStates Code, the Office of Personnel Management shall take such measures as may benecessary to ensure that, under the schedule or schedules of pay differentials for dutyinvolving unusual physical hardship or hazard, a pay differential of 25 percent shall bepayable to an individual while serving as a member of a federal wildland firefightingcrew.

Further-

(2) IN GENERAL- In the Administration of title 5, United States Code, theDirector of the Office of Personnel Management shall, through the promulgation of appropriate regulations, amend item (1) under Firefighting-FOREST & RANGE FIRESin APPENDIX A to Subpart I-PAY FOR DUTY INVOLVING PHISICAL HARDSHIP OR

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(f) Buy Back of Civilian Time After January 1,1989-

(1) IN GENERAL- Any individual who is subject to the Federal EmployeesRetirement System as a firefighter (within the meaning of section 8401 of title 5, Unitedstates 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 suchtitle.

(2) QUALIFYING FIREFIGHTERR SERVICE- For purposes of this subsection, theterm 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 byreason 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 givenunder 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 theemployee 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 thecertification of the Secretary of Interior or Agriculture, as the case may be, concerning

whether an individual performed qualifying firefighter service and the length of theperiod of such service the individual performed.

SECTION 6- FOREST SERVICE FIREFIGHTER LIABILITY

FIREFIGHTER LIABILITY-Forest Service Investigation of Firefighter Deaths IAW PL107-203-

1) Congress recognizes that the provisions set forth under PL 107-203 have in factnot 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 whichhave compromised the effective management of many wildland fires.

3) Additionally, PL 107-203 has placed an undue burden on Forest Service wildlandfirefighters 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, hostileconditions.

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 FIREand Aviation Management (FAM) Programs, and to ensure that Wildland FirePreparedness (WFPR) Funding allocated to said agencies is appropriately utilized andnot misappropriated on non WFPR programs.

2. FINDINGS:

Currently, employees of the Forest Service specifically those employed in FAMare 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 FAMassets. This leads to a disconnect between the various levels of FAM management aseach level and separate units report to varying levels of Line Officer authority andexpertise. This creates a loss of efficiency and effectives in the FAM program as theFAM 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 alesser impact, a similar organizational structure also impedes the effective and efficientdelivery of a wildfire response within the 4 Department of Interior land managementagencies and as such similar program changes are directed for the Bureau of LandManagement, National Park Service, Bureau of Indian Affairs and Fish & WildlifeService.

As envisioned by the National Fire Plan of 2000 (NFP) and directed by the ForestService Manual (FSM), WFPR funding is to be used solely for the purpose of WildlandFire Preparedness infrastructure and activities. FS Line Officers who have authorityover WFPR funds systematically reallocate such funding into other non-FIRE projectareas. This reduces the funding required to maintain a level of wildland fire


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preparedness as envisioned by the NFP in order to keep fires small & less costlythereby reducing wildfire suppression costs.

3. REQUIREMENTS:

IN GENERAL within 30 days after the date of the enactment of this Act, theForest Service and applicable Department of Interior land management agencies shallamend all applicable guidance to remove Line Officer authority for Wildland FirePreparedness and Suppression and reestablish that authority in the order of Chief of theFS (for the Forest Service), Director of FAM, Regional Directors for FAM, Forest FireManagement Officers to District Fire Management Officers. In the case of Departmentof Interior agencies, a similar structure will be developed.

Requires that all infrastructure currently retained and occupied by FAM employeesremain in support FAM personnel and function. Requires that all service and support

previously rendered by National, Regional, Forest and District offices continue tosupport for FAM employees and functions.

END

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FWFSA Legislative Draft