Oct. 1 Shutdown Would Exempt FHWA and FMCSA; Life & Safety Exemptions Would Keep Over Half of USDOT Employees At Work

September 18, 2015

The government shutdown that might take effect on October 1 would be caused by the lapse of discretionary appropriations. Once fiscal year 2015 expires at midnight on September 30, all of the one-year discretionary appropriations from the omnibus FY 2015 appropriations law expire, and without some kind of new appropriations law in place, most federal employees can’t show up for work without violating the Antideficiency Act.

This kind of shutdown does not apply to employees or programs that are funded in ways other than through one-year discretionary appropriations. For example, all employees of the Federal Highway Administration and Federal Motor Carrier Safety Administration, and some employees of the National Highway Traffic Safety Administration, are paid from Highway Trust Fund contract authority, and since that budget authority has already been enacted into law and is valid through October 29, a shutdown that starts on October 1 will not apply to those employees and programs. (The Federal Transit Administration works differently, since they have one-year general fund appropriations for their administrative expenses.)

And some discretionary appropriations last more than one year, so any employees whose salaries are drawn on prior-year appropriations that are still unspent can come to work during a lapse-of-appropriations shutdown. TIGER grant appropriations, for example, are good for three years, so any USDOT employees who perform TIGER oversight paid out of a set-aside from that appropriation should be able to keep working. The Maritime Administration also uses some multi-year appropriations.

Some Federal Aviation Administration employees draw their salaries from the two-year advance appropriation in the Facilities and Equipment account, and a few others draw their salaries from the contract authority provided to the Airport Improvement Program, so those employees were exempted from the last lapse-of-appropriations shutdown in October 2013. But this year, the Airport and Airway Trust Fund and the AIP contract authority are also coincidentally set to expire on September 30, and the appropriations continuing resolution is the vehicle for the AATF extension, so those employees would also be furloughed during any shutdown that starts this October 1.

The largest exception for any government shutdown was most recently defined in a 1995 Attorney General opinion. It allows employees to work during a lapse of appropriations “for emergencies involving the safety of human life or the protection of property.” In the 2013 shutdown, the FAA ordered 24,855 of its 46,070 employees to work via the life/safety exception to continue providing air traffic control services and some safety oversight. The Federal Railroad Administration ordered 404 of its 886 employees to work during the shutdown under the life/safety exception, and the Pipeline and Hazardous Materials Safety Administration ordered 158 of its 441 employees to work during the shutdown for similar reasons. Almost everyone at the Transportation Security Administration and the Coast Guard would likewise fall under the life/safety exception from the Antideficiency Act.

The Attorney General opinion has a much smaller carve-out for persons whose work is necessary to carry out the President’s constitutional duties. This is interpreted to mean Senate-confirmed officials and, in some instances, their very immediate staff.

DOT will have its shutdown plan updated for the current situation over then next two weeks, but the 2013 shutdown plan can be viewed here (but keep in mind that the number of FAA employees furloughed will be different this time because the number of employees able to work with “other funding” will be near zero).

More information on shutdowns generally can be found in this Congressional Research Service report from 2014.

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