FUNDING FAIL | REGULATION When funding fails
Due to a lapse in appropriations, the NRC has ceased normal operations. However, excepted activities necessary to maintain critical health and safety functions – as well as essential progress on those specified in Executive Order 14300 – will continue.” What does that mean in practice?
SINCE 30 SEPTEMBER, VISITORS TO the website of the US Nuclear Regulatory Commission (US NRC) have been faced with a flash message that the organisation “has ‘ceased normal operations”, which it says is “Due to a lapse in appropriations”. The US government’s nuclear safety watchdog, along with the Department of Energy and other Federal bodies, have been effectively shut down because on 30 September lawmakers departed the legislature without agreeing a bill that would allocate for funding to pay the organisations’ costs, including paying federal employees. Federal departments or agencies are prohibited from conducting non-essential operations without appropriations legislation in place and NRC has strict limitations on allocating money from assumed future allocations or between funding streams. The result is that nearly 2000 employees will be on ‘furlough’ – forbidden from working, with salary payments held over until the appropriation is passed. The Senate has since agreed the bill, sending it to Congress, but funding is still not in place as NEI goes to press. This is not the first time that the US Federal government
has been shut down. It was shut for 21 days in 1995/96, for 16 days in 2013 and for the longest closure in history at 35 days in 2018-19, when some 800,000 employees were furloughed. But the effects are felt more widely than the agency employees: contractors may see contracts terminated or subject to ‘stop work’ orders.
The procedure for shutdown was set out in the 1980
Office of Management and Budget (OMB) Bulletin 80-14, “Shutdown of Agency Operations Upon Failure by the Congress to Enact Appropriations,” amended in 1982 by Supplement No. 1, “Agency Operations in the Absence of Appropriations”. In 1980 the Attorney General issued an opinion,
“Applicability of the Antideficiency Act upon a Lapse in an Agency’s Appropriation,” reaffirming that the Act “unambiguously prohibits agency officials from incurring obligations in the absence of appropriations”. It allows for “minimal obligations necessary for the orderly termination of their agency’s functions”. It allows for emergencies, but a 1995 judicial opinion said this applies “only to cases of threat to human life or property where the threat can be reasonably said to be near at hand and demanding of immediate response”, confirming earlier language this “does not include the ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.” However, the “highly specialised” nature of much NRC work may allow it to call back relevant staff on an “as- needed” basis. Some carryover funding is available because, for
example, previous appropriations may have included funds for multiyear projects that are part completed. In addition there are activities that may continue because they are
Above: The US Nuclear Regulatory Commission (US NRC) has ‘ceased normal operations’ due to a lapse in appropriations
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