B-169419, AUG. 26, 1970

B-169419: Aug 26, 1970

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IT IS NOT HELD THAT RETURN TRAVEL FROM A FIRE IS NOT COMPENSABLE IRRESPECTIVE OF THE REASON FOR THE TRAVEL. WHERE THERE ARE NO MOTEL. HOTEL OR COMPARABLE FACILITIES NEARBY AVAILABLE TO FIRE FIGHTING PERSONNEL AND THE ALTERNATIVE IS BETWEEN USE OF BEDROLLS AND PERHAPS TENTS AND RETURN TRAVEL SUCH TRAVEL IS NOT TO BE VIEWED AS ADMINISTRATIVELY CONTROLLED. GENERALLY THE OFFICE HAVING THE RESPONSIBILITY FOR A PARTICULAR AREA WILL HAVE SUFFICIENT PERSONNEL TO MAKE THE INITIAL ATTACK ON A FIRE. RELIEF OR SUPPLEMENTAL CREWS MAY BE AVAILABLE FROM THE SAME OFFICE IN THE EVENT THE INITIAL ATTACK FORCE IS INSUFFICIENT OR UNABLE TO CONTROL THE FIRE. WHERE THE LOCAL FORCE IS INSUFFICIENT. IN SOME INSTANCES THE PERSONNEL MAY BE REQUESTED FOR 'STANDBY' TO BE READY IN THE IMMEDIATE VICINITY WHEN WEATHER CONDITIONS ARE SUCH THAT FIRES BEYOND THE CAPABILITY OF THE LOCAL OFFICE TO CONTROL APPEAR CERTAIN.

B-169419, AUG. 26, 1970

FIRE FIGHTERS -- OVERTIME FOR TRAVEL DECISION CONCERNING COMPENSATION FOR TRAVEL TIME OUTSIDE NORMAL DUTY HOURS FOR TRAVEL TO A GOING FIRE FOR FIRE SUPPRESSION DUTY. INSTRUCTIONS MAY BE ISSUED FOR COMPENSATION FOR TRAVEL OUTSIDE NORMAL DUTY HOURS FOR AUTHORIZED OR APPROVED TRAVEL TO A GOING FIRE FOR DUTY ASSOCIATED WITH SUPPRESSION OF A FIRE. HOWEVER, IT IS NOT HELD THAT RETURN TRAVEL FROM A FIRE IS NOT COMPENSABLE IRRESPECTIVE OF THE REASON FOR THE TRAVEL. WHERE THERE ARE NO MOTEL, HOTEL OR COMPARABLE FACILITIES NEARBY AVAILABLE TO FIRE FIGHTING PERSONNEL AND THE ALTERNATIVE IS BETWEEN USE OF BEDROLLS AND PERHAPS TENTS AND RETURN TRAVEL SUCH TRAVEL IS NOT TO BE VIEWED AS ADMINISTRATIVELY CONTROLLED.

TO MR. SECRETARY:

WE REFER TO OUR LETTER OF MAY 7, 1970, TO THE ASSISTANT SECRETARY FOR ADMINISTRATION CONCERNING CLAIMS FROM EMPLOYEES OF THE BUREAU OF LAND MANAGEMENT FOR OVERTIME PAY FOR OFF DUTY TRAVEL ARISING FROM FIRE FIGHTING ASSIGNMENTS.

BY LETTER OF JUNE 23, 1970, THE ASSISTANT SECRETARY FURNISHED US A REPORT FROM THE ASSISTANT DIRECTOR FOR ADMINISTRATION, BUREAU OF LAND MANAGEMENT ENTITLED "OVERTIME PAY FOR TRAVEL TO FIRES" TOGETHER WITH A REVISED BUREAU INSTRUCTION ON OVERTIME WHILE IN TRAVEL STATUS- INSTRUCTION MEMO NO. 70- 140.

THE FOLLOWING PARAGRAPHS FROM THE BUREAU OF LAND MANAGEMENT REPORT SET FORTH THE PROBLEMS INVOLVED:

"THE BUREAU OF LAND MANAGEMENT HAS THE RESPONSIBILITY FOR ADMINISTERING OVER 450 MILLION ACRES OF LAND INCLUDING FIRE PRESUPPRESSION AND SUPPRESSION ACTIVITIES. GENERALLY THE OFFICE HAVING THE RESPONSIBILITY FOR A PARTICULAR AREA WILL HAVE SUFFICIENT PERSONNEL TO MAKE THE INITIAL ATTACK ON A FIRE. RELIEF OR SUPPLEMENTAL CREWS MAY BE AVAILABLE FROM THE SAME OFFICE IN THE EVENT THE INITIAL ATTACK FORCE IS INSUFFICIENT OR UNABLE TO CONTROL THE FIRE. WHERE THE LOCAL FORCE IS INSUFFICIENT, ADDITIONAL PERSONNEL MAY BE REQUESTED FROM ANY OTHER OFFICE WITHIN THE BUREAU. GENERALLY PERSONNEL REQUESTED FROM ANOTHER OFFICE CONSIST OF 'FIRE OVERHEAD' I.E., SUPERVISORS, EQUIPMENT MANAGERS, PROCUREMENT SPECIALISTS, PAYROLL PERSONNEL AND OTHER ADMINISTRATIVE STAFFS. IN SOME INSTANCES THE PERSONNEL MAY BE REQUESTED FOR 'STANDBY' TO BE READY IN THE IMMEDIATE VICINITY WHEN WEATHER CONDITIONS ARE SUCH THAT FIRES BEYOND THE CAPABILITY OF THE LOCAL OFFICE TO CONTROL APPEAR CERTAIN.

"THE BUREAU MAINTAINS AND OPERATES A FIRE CONTROL CENTER AT BOISE, IDAHO. DURING THE SUMMER MONTHS WHEN THE FIRE OCCURRENCES ARE HIGH, THE BUREAU HAS AIRCRAFT ON CHARTER AT THE FIRE CENTER TO TRANSPORT MEN, SUPPLIES AND EQUIPMENT TO THE FIRE. DURING THE SUMMER OF 1969, A DC-6 AIRCRAFT WAS USED FOR THIS PURPOSE.

"REQUESTS FOR ASSISTANCE ON A FIRE ARE MADE THROUGH THE FIRE CENTER. UPON RECEIPT OF A REQUEST FOR MEN, THE FIRE CENTER CONTACTS VARIOUS OFFICES UNTIL A SUFFICIENT NUMBER OF MEN TRAINED IN THE FUNCTION REQUESTED AND WHO ARE AVAILABLE FOR FIRE DUTY ARE IDENTIFIED. THE FIRE CENTER NOTIFIES THE OFFICE HEAD WHO HAS AGREED TO SUPPLY THE MEN OF THE MODE OF TRANSPORTATION TO BE USED DEPENDING UPON THE DISTANCES TO BE TRAVELED, TRANSPORTATION AVAILABLE AND THE SCHEDULE TO MAINTAIN. THE MEN MAY BE REQUESTED TO REPORT TO BOISE FOR TRANSPORTATION ON THE CHARTERED AIRCRAFT OR THEY MAY BE INSTRUCTED TO UTILIZE COMMERCIAL TRANSPORTATION. PERSONNEL GOING TO ALASKA FOR FIRE DUTY ARE EXPECTED TO REMAIN IN ALASKA FOR A MINIMUM OF 10 DAYS UNLESS RELEASED EARLIER BY THE ALASKA OFFICE. FIRE DUTY BEYOND THE 10 DAY PERIOD IS GENERALLY BY CHOICE SINCE RELIEF PERSONNEL WILL BE MADE AVAILABLE AS THE SITUATION WARRANTS. EMPLOYEES ARE NOT ORDERED TO FIRE DUTY. DUE TO THE EARNINGS (MOST WILL EARN THE STATUTORY MAXIMUM PAY EQUIVALENT TO THE TENTH STEP OF A GS-15, PLUS APPLICABLE HAZARD PAY), THERE ARE SUFFICIENT VOLUNTEERS TO MEET THE REQUIREMENTS. FIRE ASSIGNMENTS DEPEND PRIMARILY UPON THE RELATIVE IMPACT UPON THE BUREAU'S REGULAR PROGRAM.

"DURING THE EMPLOYEE'S ABSENCE FROM HIS REGULAR DUTY STATION AS A RESULT OF A FIRE ASSIGNMENT, THE TIMEKEEPER COMPLETES A TIME SHEET FOR 8 HOURS NORMAL PAY PER DAY. THE EMPLOYEE IS THUS ASSURED OF A PAY CHECK ON THE NORMAL PAY DATE. THE BUREAU'S PROCEDURES REQUIRE THE FIRE TIMEKEEPER TO COMPLETE A SUPPLEMENTAL OR 'FIELD TIME REPORT' FOR ACTUAL HOURS OF DUTY. ALL OVERTIME FOR EMPLOYEES ASSIGNED TO FIRE DUTY MUST BE AUTHORIZED OR APPROVED BY AN OFFICIAL OF THE OFFICE RESPONSIBLE FOR CONTROLLING THE FIRE. THE EMPLOYEE TURNS IN TO HIS REGULAR TIMEKEEPER THE SUPPLEMENTAL TIME REPORT UPON HIS RETURN TO HIS REGULAR DUTY STATION. THE REGULAR TIMEKEEPER SUBMITS AN AMENDED TIME REPORT TO THE PAYROLL OFFICE.

"AS A PRACTICAL MATTER MOST EMPLOYEES MAINTAIN THEIR OWN SUPPLEMENTAL TIME SHEETS. WITH FEW EXCEPTIONS, THE REQUIRED APPROVALS WERE NOT OBTAINED DURING THE 1969 FIRE SEASON. ONLY THE EMPLOYEE WHO MAKES HIS OWN TRAVEL ARRANGEMENTS IS IN THE POSITION TO DETERMINE THE HOURS TRAVELED. SINCE EACH CASE PRESENTS DIFFERENT CIRCUMSTANCES, IT IS NOT POSSIBLE TO MAKE AN INDEPENDENT DETERMINATION IN A MASS MOVEMENT OF PERSONNEL.

"DURING THE 1969 FIRE SEASON, THE BUREAU'S REGULATIONS PROVIDED THAT ONLY THE INITIAL ATTACK CREWS WOULD BE ENTITLED TO OVERTIME FOR TRAVEL OUTSIDE NORMAL DUTY HOURS. THIS WAS PREDICATED UPON THE ASSUMPTION THAT RELIEF AND SUPPLEMENTAL PERSONNEL REQUIREMENTS WERE ADMINISTRATIVELY CONTROLLABLE AS PROVIDED IN FPM 550.112(E) AND AS CLARIFIED BY THE EXAMPLES TO THAT SECTION. ACCORDINGLY THE TIME AND ATTENDANCE REPORTS WERE AUDITED BY COMPARISON WITH THE RELATED TRAVEL VOUCHER. BILLS WERE ISSUED TO ALL PERSONNEL WHO WERE NOT PART OF THE INITIAL ATTACK CREW AND WHO HAD BEEN PAID OVERTIME FOR TRAVEL IN CONNECTION WITH A FIRE. A TOTAL OF 279 BILLS WERE ISSUED SEEKING TO RECOVER $24,047.80. ALLOWANCES WERE MADE FOR REDUCTIONS PREVIOUSLY MADE AS A RESULT OF EXCEEDING THE STATUTORY MAXIMUM.

"AS A RESULT OF THE BILLS ISSUED WE HAVE RECEIVED NUMEROUS LETTERS AND ARE AWARE OF STILL OTHERS SUBMITTED DIRECTLY TO THE COMPTROLLER GENERAL. IT APPEARS THAT TRAVEL TO A FIRE CANNOT BE CONTROLLED REALISTICALLY. REVISED INSTRUCTIONS WERE ISSUED ON MAY 6, 1970, TO PROVIDE THAT OVERTIME WOULD BE PAID FOR ALL TRAVEL OUTSIDE NORMAL DUTY HOURS GOING TO A FIRE. COPY OF OUR CURRENT INSTRUCTIONS IS ENCLOSED.

"THE CIRCUMSTANCES INVOLVED IN EACH OF THE BILLS ISSUED AND WHICH ARE BEING CONSIDERED BY THE GENERAL ACCOUNTING OFFICE INVOLVE TRAVEL TO AND FROM ALASKA IN CONNECTION WITH DUTIES ASSOCIATED WITH FIRES. WHILE IN THEORY SOME OF THE TRAVEL TO THE FIRE ASSIGNMENT MAY HAVE BEEN ADMINISTRATIVELY CONTROLLABLE, IN ACTUAL PRACTICE IT CANNOT BE CONTROLLED. TRAVEL FROM A FIRE IS CONTROLLABLE WITHOUT EXCEPTION. DUE TO DIFFERENCES IN TIME BETWEEN ALASKA AND THE LOWER 48 STATES REQUESTS FOR PERSONNEL ARE FREQUENTLY RECEIVED AFTER NORMAL WORK HOURS WITHOUT A PRACTICAL MEANS OF VERIFYING THE EXTENT OR NATURE OF THE SITUATION FOR WHICH PERSONNEL ARE REQUESTED. THE ISSUES INVOLVED ARE AS VARIED AS THE NUMBER OF PERSONS ASSIGNED TO FIRE DUTY. EACH CASE PRESENTS ITS OWN PARTICULAR ISSUES.

"WE BELIEVE THE BUREAU'S POLICY AS SET FORTH IN THE ENCLOSED INSTRUCTION MEMO NO. 70-140 IS CONSISTENT WITH THE REGULATIONS AND CONGRESSIONAL INTENT. WE RECOMMEND THE DEPARTMENT FORMALLY ADOPT THE POLICY AND MAKE IT RETROACTIVE TO COVER THE 1969 FIRE SEASON."

INSTRUCTION MEMO NO. 70-140 IN PERTINENT PART PROVIDES:

"TRAVEL OUTSIDE NORMAL DUTY HOURS WILL BE COMPENSATED AT APPROPRIATE OVERTIME RATES UNDER THE FOLLOWING CONDITION PROVIDING SUCH OVERTIME IS PROPERLY AUTHORIZED OR APPROVED. AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME IS CONTAINED IN BLM MANUAL 1400-550.03.

"TRAVEL TO A GOING FIRE FOR DUTY ASSOCIATED WITH THE SUPPRESSION OF THE FIRE. SUCH DUTIES MAY CONSIST OF ACTUAL SUPPRESSION EFFORT OR A SUPPORT ACTIVITY DIRECTLY ASSOCIATED WITH THE SUPPRESSION EFFORT. ONLY TRAVEL TIME IS REIMBURSABLE. TRAVEL TIME CONSISTS OF THE PERIOD ACTUALLY TRAVELING AND DELAYS IN ROUTE OF UP TO TWO HOURS WHEN THE DELAY IS DUE TO LACK OF TRANSPORTATION. A DELAY OF MORE THAN TWO HOURS IS NOT COMPENSABLE IRRESPECTIVE OF THE CIRCUMSTANCES OR REASON FOR THE DELAY.

"TRAVEL FROM A FIRE WHICH OCCURS OUTSIDE NORMAL WORK HOURS OR WHICH WHEN ADDED TO WORK HOURS FOR THE DAY WILL EXCEED EIGHT HOURS IS NOT COMPENSABLE IRRESPECTIVE OF THE REASON FOR THE TRAVEL. SUCH TRAVEL MAY NOT BE CLASSIFIED AS ARDUOUS ON THE BASIS OF LATE HOURS, LONG TRIP, LACK OF COFFEE, INCONVENIENCE, TYPE OF AIRCRAFT, ETC., SO AS TO BE COMPENSABLE."

THE ASSISTANT SECRETARY STATED THAT THE DEPARTMENT OF INTERIOR IS IN AGREEMENT WITH THE BUREAU OF LAND MANAGEMENT'S PROPOSAL AND THAT ITS ADOPTION IS PLANNED SUBJECT TO OUR DECISION.

WE CONCUR THAT TRAVEL TO A GOING FIRE FOR DUTY ASSOCIATED WITH ITS SUPPRESSION CONSTITUTES TRAVEL WHICH CANNOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. WHILE IT MIGHT BE ARGUED IN THEORY, THAT SOME OF THE TRAVEL TO A FIRE ASSIGNMENT SHOULD BE REGARDED AS ADMINISTRATIVELY CONTROLLABLE, IN ACTUAL PRACTICE SUCH TRAVEL CANNOT REALISTICALLY BE CONTROLLED BY THOSE IN AUTHORITY. THE RECORD INDICATES THAT IN ADDITION TO THE RECOGNIZED DANGER INVOLVED IN A FOREST FIRE IT FREQUENTLY CONTINUES THROUGHOUT ITS LIFE AS AN UNPREDICTABLE EMERGENCY. WITH INCREASES IN THE SIZE OF A FIRE, CONDITIONS AND CORRESPONDING MEASURES OF CONTROL NEEDED CAN MULTIPLY WITHIN A FEW HOURS. THE FIRE BOSS AT A FIRE OFTEN IS UNABLE TO EVALUATE THE FUTURE SITUATION AND DETERMINE THE EXTENT OF CONTROL NEEDED FAR ENOUGH IN ADVANCE TO BRING THE FIRE UNDER CONTROL. ACCORDINGLY, WE HAVE NO OBJECTION TO THAT PART OF THE PROPOSED INSTRUCTIONS PROVIDING COMPENSATION FOR TRAVEL TIME OUTSIDE NORMAL DUTY HOURS FOR AUTHORIZED OR APPROVED TRAVEL TO A GOING FIRE FOR DUTY ASSOCIATED WITH THE SUPPRESSION OF THE FIRE.

WE WOULD NOT AGREE, HOWEVER, WITH THE PROPOSAL TO HOLD RETURN TRAVEL FROM A FIRE OUTSIDE NORMAL WORK HOURS AS NOT COMPENSABLE IRRESPECTIVE OF THE REASON FOR THE TRAVEL. WE THINK THAT THE LIVING CONDITIONS AT OR NEAR THE FIRE CAMP HAVE A BEARING ON THE QUESTION. WHERE MOTEL, HOTEL, OR COMPARABLE FACILITIES ARE UTILIZED BY FIRE FIGHTERS AT THE FIRE CAMP AREA, WE WOULD AGREE THAT RETURN TRAVEL IS ADMINISTRATIVELY CONTROLLABLE AS IN THE CASE OF NON-FIRE FIGHTER PERSONNEL. IN CASES, HOWEVER, WHERE NO SUCH COMPARABLE FACILITIES ARE AVAILABLE AND THE ALTERNATIVE TO FIRE FIGHTING PERSONNEL IS BETWEEN BEDROLLS AND PERHAPS TENTS FOR ANOTHER NIGHT AND RETURN TRAVEL DURING OFF-DUTY HOURS, SUCH RETURN TRAVEL, IN OUR OPINION, IS NOT TO BE VIEWED AS ADMINISTRATIVELY CONTROLLABLE.

THE CASES FOR THE FOLLOWING INDIVIDUALS WHO HAVE FILED INQUIRIES WITH THIS OFFICE TOGETHER WITH THOSE PENDING IN THE BUREAU OF LAND MANAGEMENT SHOULD BE REDETERMINED UNDER THE TERMS OF THIS DECISION.

MR. EDWARD L. PITTMAN

BUREAU OF LAND MANAGEMENT

UNITED STATES DEPARTMENT OF THE INTERIOR

196 E. TABERNACLE, P. O. BOX 250

ST. GEORGE, UTAH 84770

MR. JAMES H. AARON, JR., ET AL.

BUREAU OF LAND MANAGEMENT

UNITED STATES DEPARTMENT OF THE INTERIOR

P. O. BOX 1456

SOCORRO, NEW MEXICO 87801

MR. WILLIAM R. WHITE, ET AL.

P. O. BOX 1397

ROSWELL, NEW MEXICO 88201

MR. CRAWFORD R. LAURENT

2511 QUITMAN STREET

DENVER, COLORADO 80212

MR. THOMAS O. HAYDEN

763 SOUTH YOUNGFIELD COURT

LAKEWOOD, COLORADO 80228

MR. NACOR E. MANZANARES

1180 SOUTH GRAY STREET

LAKEWOOD, COLORADO 80226

MR. GAROLD W. LAMB

BUREAU OF LAND MANAGEMENT

UNITED STATES DEPARTMENT OF THE INTERIOR

ESCALANTE, UTAH 84726

MR. ESTEL E. LUDLOW

BUREAU OF LAND MANAGEMENT

UNITED STATES DEPARTMENT OF THE INTERIOR

320 NORTH FIRST EAST

KANAB, UTAH 84741

MR. MILTON N. FREI

BUREAU OF LAND MANAGEMENT

UNITED STATES DEPARTMENT OF THE INTERIOR

320 NORTH FIRST EAST

KANAB, UTAH 84741

MR. JOHNNIE L. LIGHTSEY

1651 SOUTH WADSWORTH

LAKEWOOD, COLORADO 80226

MR. WILLIAM F. TOWNSEND

AREA MANAGER, IDAHO FALLS DISTRICT

BUREAU OF LAND MANAGEMENT

UNITED STATES DEPARTMENT OF THE INTERIOR

BOX 1867

IDAHO FALLS, IDAHO 83401

MR. WILLIAM R. HENDERSON

1914 SOUTH CAPE WAY

DENVER, COLORADO 80227

ON THE RECORD OF THE CASES INVOLVED, WE ASSUME THAT WHERE APPROPRIATE, OVERPAYMENTS WILL BE CONSIDERED FOR WAIVER ON AN INDIVIDUAL CASE BASIS UNDER THE PROVISIONS OF 5 U.S.C. 5584.

A COPY OF THIS DECISION IS BEING FORWARDED TO EACH OF THE CLAIMANTS LISTED.