Forest Service Competitive Sourcing Continues to Violate Law
Requirements to Consider Wildfire Suppression Capabilities Being Ignored A Forest Service Council Briefing Paper1 August 3, 2006
Summary. Existing and pending Interior Appropriations provisions require the Forest Service (FS) to ensure that its wildfire suppression capabilities are not eroded by competitive sourcing (CS). In violation of Sec. 422(e) of PL 109-54, the FS is carrying out an A-76 study of communications work without determining employees’ wildfire qualifications or considering the impact on suppression capabilities. Further, the FS has briefed the Office of Management and Budget (OMB) that it plans to violate pending legislation which, if enacted, would prohibit use of funds to study activities whose personnel support wildfire suppression programs. Specifically, OMB was briefed of plans to proceed with feasibility and potentially competitive sourcing study of National Environmental Policy Act (NEPA) information collection and analysis if pending legislation is enacted. Numerous employees performing NEPA work also support wildfire suppression programs as members of the fire militia. The FS has consistently ignored the will of Congress with regard to competitive sourcing restrictions, and is poised to continue doing so. Accordingly, we recommend that language be used that is not open to interpretation and in no way may be construed to threaten the prerogative of the executive, but rather flows directly from the power of the purse: Of the funds appropriated by this or any other Act, none may be used in fiscal year 2007 for competitive sourcing studies and related activities by the Forest Service.
The FS is violating current law. Current law, Sec. 422(e) of PL 109-54, states “In carrying out any competitive sourcing study involving Forest Service employees, the Secretary of Agriculture shall (1) determine whether any of the employees concerned are also qualified to participate in wildland fire management activities; and (2) take into consideration the effect that contracting with a private sector source would have on the ability of the Forest Service to effectively and efficiently fight and manage wildfires. The FS has done neither.2 The only data collected by the Communications Competitive Sourcing Team (CCST) regarding fire suppression activities by affected employees was in a May 22, 2006 “data call,” which asked employees to report “How many pay periods did this position spend last year on INCIDENTS (fire, hurricane, other disasters) in any capacity?” This crude approach allows for no meaningful analysis or consideration. It may not even capture all qualified individuals, much less the nature of their qualifications. Meaningful analysis would require determination of specific wildfire qualifications, not merely knowledge of which employees have been mobilized recently in some unknown capacity. Personnel wildfire qualifications are kept in an interagency Incident Qualifications and Certification System (IQCS) database.3 IQCS does not contain data regarding the “day jobs” of 1
responders4 and Human Resources Management (HRM) systems do not track employees’ wildfire qualifications. To begin meaningful consideration, the wildfire qualifications of employees identified by CS data calls as affected by the Communications study would have to be determined through use of IQCS. Even this necessary first step to meaningful consideration has not been done.5 Needs and trends data would also be needed to assess the impact of reduced capacity in specific wildfire positions. To our knowledge, no efforts have been made by the CCST or CS Program Office (CSPO) to compile mobilization records, “Unable to Fill” (UTF) reports, After Action Reports (AARs), etc. to this end. Indeed, we are unaware of any organized collaboration with fire program management to even begin considering how to proceed. Consideration of the ability of the FS to fight and manage wildfires cannot be made in the context of an A-76 study. A-76 procedures are completely prescriptive. Consideration of any matter extraneous to the procurement of the in-scope work is not allowed. Further, A-76 requires the agency to implement the A-76 “performance decision,” i.e., to contract the studied work if the performance decision favors a private provider. Formal announcement is tantamount to an agency decision to contract if A-76 so stipulates. Therefore, any meaningful consideration of matters such as those required by PL 109-54 must occur before formal announcement. The communications A-76 study was formally announced on June 29, 2006.6 No consideration was given to potential effects “on the ability of the Forest Service to effectively and efficiently fight and manage wildfires.” The FS simply ignored the law.7
The FS plans to violate pending legislation. Pending legislation, Sec. 430 of HR 5386 RS, states “[No funds] may be used to study… a competitive sourcing activity…, including support personnel..., relating to wildfire management or wildfire suppression programs.” If this provision is enacted, the FS plans to proceed with plans to perform a competitive sourcing feasibility study of NEPA work involving thousands of employees.8 Many of the affected employees are personnel who support wildfire suppression programs. In fact, so-called militia members are as much a part of the FS emergency response program as are employees with positions in agency fire line organizations. The line organizational structure of a typical ranger district is shown in Fig. 1. “Day job” time spent on NEPA work is designated in blue text. Qualified wildfire responders are designated by red text. Yellow and green boxes denote the district fire line organization and general land management line organization, respectively. Responders are mobilized for incidents based only on the qualifications needed and without regard to the location of their “day job” positions in this organization chart. Mobilization does not occur through the agency fire line organization, but through procedures outlined in the National Interagency Mobilization Guide.9 When mobilized, these employees are no longer part of the district line organization, but assume positions in an independent ICS command structure according to their wildfire/ICS qualifications (see Fig. 2). Programmatically and operationally, membership in the fire program equates to being a qualified and certified red-carded employee. Locations of “day job” positions in agency organizational charts are irrelevant.10 2
Figure 1. Three Rivers Ranger District Organization
District Ranger GS-340-13
RDMA GS-462-11 FMO
RDMA GS-460-11 WZ Presale/TSI/Refo/Silviculture
ID Team Leader GS-401-12 100% NEPA Writer-Editor 100% NEPA
RDMA Support Services Supv GS-342-7 Admin Support Clerk GS-303-4
AFMO Fuels GS-460-9 25% NEPA
AFMO Fire GS-462-9
Rec Planner GS-023-9 30% NEPA
TSI/Refo/KV Tech GS-462-9 TSI/Refo/KV Tech GS-462-7 PSE 18/24
Wildlife Biologist 75% NEPA 50% NEPA Fish Biologist GS-482-11 75% NEPA Hydrologist GS-1315-11 75% NEPA Silviculturist 75% NEPA Biol Tech 80% NEPA Biol Tech
Engine Sup GS-462-7 PSE 13/18 Asst. Engine Sup GS-462-5 PSE 13/18 Engine Sup GS-462-7 PSE – Vacant Asst. Engine Sup GS-462-5 PSE 13/18
IA Crew Ldr GS-462-6 PSE 13/18 Asst. IA Crew Ldr GS-462-5 PSE 13/18 IA Crew Ldr GS-462-6 PSE 13/18 Asst IA Crew Ldr GS-462-5 PSE 13/18
Recreation Tech GS-462-8
Admin Support Clerk GS-303-4 .5 FTE
Recreation Tech GS-462-8
Presale/Log Systems 30% NEPA
Admin Support Clerk GS-303-4
Recreation Tech GS-5
Presale Tech GS-462-7 Presale Tech GS-462-6 PSE 18/24 Presale Tech GS-462-7
Admin Support Clerk GS-303-4
Figure 2. The Incident Command System Major Organization Elements
Incident Command
Information Officer Safety Officer Liaison Officer Operations Section Staging Areas Branches Divisions and Groups Strike Teams Task Forces Single Resources Air Operations Branch Air Support Group Air Tactical Group Planning Section Resources Unit Situation Unit Documentation Unit Demobilization Unit Technical Specialists Logistics Section Financial/Administration Section Time Unit Procurement Unit Compensation/ Claims Unit Cost Unit
Support Branch Supply Unit Facilities Unit Group Support Unit
Service Branch Communication Unit Medical Unit Food Unit
3
Note that substantial fire resources reside in the green “land management” boxes. Even a cursory bean-counting analysis suggests that outsourcing NEPA work could have a devastating effect on fire response capabilities.11 In addition to constituting a technical violation of the pending legislation, this would clearly be contrary to the expressed purpose of “maintaining sufficient readiness” and limiting competitive sourcing of “wildfire program activities (emphasis added).”12
The FS has historically violated competitive sourcing law. Sec. 647 of PL 108-7 (enacted 2/20/03) stated, “None of the funds made available in this Act may be used by an agency of the executive branch to establish, apply, or enforce any numerical goal, target, or quota for subjecting the employees of the executive agency to public-private competitions or for converting such employees or the work performed by such employees to private contractor performance under the Office of Management and Budget Circular A-76 or any other administrative regulation, directive, or policy unless the goal, target, or quota is based on considered research and sound analysis of past activities and is consistent with the stated mission of the executive agency.” FS competitive sourcing was based on numerical quotas. Quotas were based “solely on OMB’s direction;” no research or analysis was performed.13 Sec. 332(e) of PL 108-447 (enacted 12/8/04) and Sec. 422(d) of PL 109-54 (enacted 8/2/05) required the FS to report “to the Committees on Appropriations..., in accordance with full cost accounting principles, all costs attributable to developing, implementing, supporting, managing, monitoring, and reporting on competitive sourcing, including personnel, consultant, travel, and training costs associated with program management.” The FS has not complied with this reporting requirement.14 Sec. 422(e) of PL 109-54 (enacted 8/2/05) requires consideration of “the ability of the Forest Service to effectively and efficiently fight and manage wildfires.” As discussed above, the FS ignored this requirement by formally announcing an A-76 study of communications activities on June 29, 2006. The magnitude of the erosive effect on fire management and suppression capabilities by continued competitive sourcing is unknown and unknowable with the current state of knowledge. The nation’s wildfire management and suppression program is already stretched far too thin and risk levels are high. Year after year, the FS ignores legislation to improve its failed competitive sourcing program and make it accountable for its stated goal of increasing efficiency and effectiveness. What is Congress going to do about it? Can a law without loopholes be passed? Or will the FEMA-ization of the FS be allowed to proceed?15 We urge Congress to enact a moratorium on FS competitive sourcing until a pending GAO review of the program16 is completed and adequate protections can be put in place. 4
Endnotes for Forest Service Council Briefing, July 31, 2006
1
This report was prepared by the National Federation of Federal Employees Forest Service Council’s Legislative Committee. It was most recently revised on August 2, 2006. Updated versions will be posted at http://www.nffefsc.org/Documents/CSIndex/Brief_060717/FS_CompSourcing_7_20_2006.doc. For additional information, please contact Council President Bill Dougan (907-747-4285 office; 907-738-3742 cell; wdougan@fs.fed.us) or Legislative Committee member Mark Davis (608-231-9474 office; mwdavis01@fs.fed.us).
2
This responsibility is ultimately that of the Secretary of Agriculture; however, the data collection and analysis required for meaningful consideration would necessarily be tasked to the FS, wherein lies the requisite data and expertise.
3
For a list of wildfire positions, see National Wildfire Coordinating Group (NWCG) positions and FS specific positions (also available at http://iqcs.nwcg.gov). These lists include wildfire position codes for specific Incident Command System (ICS) jobs as well as for specialized fire-fighting support jobs. These jobs require highly specialized skills: qualification and certification involves years of training and experience. For more information on minimum interagency standards for specific wildfire positions, see Wildland Fire Qualification Guide, National Wildfire Coordinating Group (April, 2006). The FS supplements these minimums for all jobs with additional training requirements to produce a more highly trained responder workforce. In addition, the FS has established qualification and certification standards for 80+ highly specialist positions, also managed by IQCS, including Forward Looking Infrared Interpreter, Burned Area Emergency Response Team Leader, Military Aviation Operations Coordinator, etc. See FS Handbook 5109.17.
4
“Day job” work refers to the work employees normally perform when not serving on an incident. These duties are described with reasonable accuracy in employees’ position descriptions. Although some Office of Personnel Management (OPM) Job Series codes have recently been added to IQCS, they are not entirely accurate. More significantly, Job Codes are not descriptive of the work being performed. For example, employees with primary fire management duties share Job Series GS-462, Forestry Technician, with employees performing a wide range of land management activities. See Individual Occupational Requirements for GS-462: Forestry Technician Series. Integration of “day job” duties and emergency response qualification records is a substantial obstacle, one which the agency Competitive Sourcing Program Office has not even begun to address.
5
According to National Wildfire Coordination Group (NWCG) personnel who manage the IQCS database through which any such request for data would have to come, none have. The Council has performed analyses that demonstrate the potential for the ongoing Communications A-76 study to significantly erode key ICS response capabilities. For example, the FS has identified Job Series 1035 (Public Affairs) positions as among the approximately 801 positions that will be impacted by this study. There are 171 FS wildfire responders in Job Series 1035 who have 455 specific qualifications recorded in IQCS among them. Prevalent were ICS Public Information Officers at Type 1 and 2 levels who serve as information managers on highly visible and complex major incidents. We have been informed that post-Katrina “After Action Reports” (AARs) identified capacity problems in precisely the area of public communications. The A-76 study of Communications stands to further deplete this capacity. In addition, wildfire response capabilities unrelated to these employees’ “day jobs” would also be lost. See IQCS Run of Series 1035 Employees. This has not been considered; indeed, data has not even been collected that would allow consideration to begin.
6
See Announcement of Communication Functions Competitive Sourcing Study, Jacqueline Myers (for) Hank Kashdan, FS Deputy Chief for Business Operations (June 27, 2006). Plans to perform additional preliminary planning and announce in mid-July were abruptly and without explanation abandoned in favor of an announcement on the last day of the third quarter of fiscal year 2006. See Status Update of Agency Competitive Sourcing Activities, FS Chief Dale Bosworth (May 26, 2006). One is left to speculate about the relative influence of arbitrary deadlines from OMB vis a vis the law of the land.
7
Agencies are bound to implement A-76 performance decisions. See OMB Circular A-76 at B-18, which states, “An agency shall implement the performance decision resulting from a standard competition…” Formal announcement of a study commits the agency to complete an expensive, time-consuming and highly disruptive cost comparison process within 12 months. It makes no sense to begin this process without having first considered the independent issue of whether outsourcing the work would unacceptably erode fire suppression capabilities. This is
5
precisely what has happened. The FS lacks the authority to cancel an A-76 study after announcement; this demonstrates the agency has no intention of meeting its PL 109-54 obligations. The authority to cancel an A-76 study resides with a political appointee, the Competitive Sourcing Official (CSO), an assistant secretary or equivalent level official, and may not be delegated. See OMB Circular A-76 at 1 and B-3. To comply with the letter and spirit of PL 109-54, the CSO should cancel the FS Communications study and the FS be instructed to perform the data collection and consideration of fire suppression capabilities mandated by Sec. 422(e).
8
See OMB Briefing, USDA Forest Service (June 28, 2006). A feasibility study is a “competitive sourcing activity” within the meaning of the proposed legislation. Feasibility studies were specified by House Report 109-465 as “associated activities related to competitive sourcing [that] need to be charged against the funding cap,” i.e., as among the competitive sourcing “related activities” of Sec. 420(a)(2) of HR 5386 RS. It is worth noting that Department-mandated feasibility studies do not concern themselves with maintenance of wildfire response capabilities, nor have feasibility studies performed by the FS concerned themselves with the crucial matter. See OCFO Bulletin 2004-00 I, USDA (May 11, 2004) and Feasibility of Conducting a Cost Comparison on Communication Activities in the USDA Forest Service, USDA FS (June 30, 2005), respectively.
9
See http://www.nifc.gov/nicc/mobguide/. Even the initial attack of small incidents (less then 10 acres) on a local unit uses nearest available assets without regard to employing agency and makes use of the appropriately-scaled Incident Command System (ICS) command structure. ICS provides an on-scene structure of management-level positions suitable for managing any incident. FS employees with ICS qualifications respond not just to wildfires, but to a variety of emergencies. The National Interagency Incident Management System (NIIMS) provides a system for responding to a wide range of emergencies. Recent Forest Service all-risk responses have included Columbia Space Shuttle Recovery; Hurricanes Katrina, Rita, and Wilma responses; and responses to Exotic Newcastle disease outbreaks in chickens in Virginia, California, and Nevada. In addition, FS responders with ICS qualifications, as members of Disaster Assistance Support Teams (DART), fill requests for support of foreign disaster responses and preparedness training for disasters pursuant to agreements through the U.S. AID/Office of Foreign Disaster Assistance (OFDA). See http://www.fs.fed.us/global/aboutus/dmp/welcome.htm.
10
Note that local line organizations report to the District Ranger (see Fig. 1) and are therefore not operationally integrated with national fire officials through the agency line structure. National officials lack knowledge regarding what specific ICS and related assets are contained in the various Regional and Forest agency fire line organizations. In fact, FS Washington Office (FSWO) fire officials do not even know how many IQCS positions (see note 3) reside in FS fire line organizations. Estimates put the number of responders in fire line organization positions at approximately 10,000 and those in other positions (the “militia”) at approximately 20,000 (total FS responders as of July 18, 2006 was 31,472). The IQCS database of responders and their qualifications makes no distinction between these groups. They are completely without meaning to fire suppression program activities.
11
Seven of 23 district responders (30%) have very substantial NEPA duties. To outsource NEPA would be to lose a substantial portion of this fire suppression capability as well. It is worth noting that certain specialized skills tend to be compartmentalized in militia employees. While ICS Command and Operations functions tend to be filled by upper level employees in the fire line organization, ICS Logistics, Finance, and Planning and Support functions tend to be filled by militia employees. Thus, crucial ICS subcomponents may be disproportionately affected by selective downsizing of the militia. It is also worth noting that, as is the case for fire line organization employees, the FSWO does not know how many employees are performing how much NEPA work.
12
See House Report 109-465.
13
In response to the Council’s formal information request for “all research and analyses performed to determine that the current competitive sourcing targets… are consistent with the stated mission of the Forest Service, the FS responded, “A mathematical formula, based solely on OMB’s direction, applied to the Forest Service’s 2000 Fair Act Inventory established the targets for FY03 through FY05.” See FS Response to Charge of Unfair Labor Practice (August 28, 2003).
14
See House Report 109-465 and Legislative Position Paper: Forest Service Competitive Sourcing, Forest Service Council (May 4, 2006).
6
15
Because of the success of NIIMS ICS (see note 9), President Bush in Homeland Security Presidential Directive-5 ordered development of a national ICS. On March 1, 2004, Homeland Security issued the National Incident Management System (NIMS), which essentially seeks to implement the interagency NIIMS ICS on a national level. See http://www.fema.gov/txt/nims/nims_ics_position_paper.txt and http://www.fema.gov/emergency/nims. Implementation of “one-eyed” NIMS has just begun. Currently, NIMS ICS is best described as a paper organization. Unlike FS and other NWCG-certified responders, FEMA responders are not required to meet the minimum qualification standards of PMS 310-1 (see note 3). Training modules, task books, and certification standards are still under development. Core competencies and experience are lacking. Insufficient resources and personnel inadequately trained in ICS played significant roles in shortcomings in the federal response to hurricane Katrina. See excerpts from the Whitehouse Report, The Federal Response to Hurricane Katrina: Lessons Learned. FS employees constitute a substantial portion of the nation’s functional ICS capabilities. The FS led the way in inventing ICS and has been using it for decades. Currently, the total number of responders from all five Federal wildland fire agencies that participate in NIIMS ICS is roughly 70,000. 31,472 (45%) of these are FS responders. By way of comparison, the next highest number of responders, roughly 15,000, is provided by the Bureau of Indian Affairs (BIA). Contributions by FS human capital are even more significant than these numbers suggest: The FS provides the majority of the Command and General Staff positions, which include Area Command organizations and Type 1 and 2 Incident Commanders and Section Chiefs. Reduction of FS employees in the responder workforce could seriously erode the nation’s ability to deploy Teams to manage incidents. This is the infrastructure that is being dismantled without any consideration of the consequences.
16
See the bipartisan request for GAO review and GAO’s acceptance.
7