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OSHA, EPA, USDA: How Are They Affected By The Government Shutdown?

At midnight (EST) on Saturday, December 22, the United States began what has become the longest government shutdown in US history. Until the shutdown ends, the pause in funding will affect about a quarter of government activities, with about 800,00 employees on furlough or working without pay. These include Federal corrections officers, FDA food inspectors, NASA employees, TSA staff, Border Patrol staff, census staff, National Park Service staff, members of the Coast Guard, and Federal Aviation Administration air traffic controllers. How will this affect some of the agencies most familiar to those in the forest products industries?

OSHA at Full Force
According to an article at the EHS Daily Advisor newsletter (ehsdailyadvisor.blr.com), despite the government shutdown affecting many federal agencies and contractors, it is business as usual for the time being at OSHA. Both OSHA and the Mine Safety and Health Administration (MSHA) are fully operational during the shutdown.

Due to a minibus appropriations bill signed in September 2018, these agencies are fully funded through September 2019. Employers should expect the same level of inspections, enforcement, and compliance assistance that was in place pre-shutdown.

However, the Chemical Safety and Hazard Investigation Board (CSB) has had approximately 95 percent of its staff furloughed, and all current investigations have been suspended. The remaining staff are on call should a serious incident occur during the shutdown, the article notes.

EPA Sees Big Impact
The Environmental Protection Agency (EPA) will see a much greater impact, according to a January 11th article by William C. Schillaci, also at the EHS Daily Advisor. He writes that some of the EPA functions that have halted due to the shutdown include permit writing, rulemaking, data collection and analysis, issuing policy statements and guidance documents, holding public hearings, maintaining community liaisons and other communication with the public, and conducting compliance inspections. According to a Contingency Plan for Shutdown released by the EPA's chief of Operations, only about 800 of the EPA's 14,000 employees are continuing to work during the shutdown—although, if funding for "excepted or exempted" activities runs out, these employees may also be furloughed.

Writes Schillaci, "The Agency has 134 facilities occupying approximately 8.2 million square feet. Some facilities house laboratories with ongoing research and living organisms that cannot be abandoned; therefore, essential personnel in labs have continued to do their jobs."

He cites the Contingency Plan, which states: "To protect research property and stand-alone facilities, personnel will be excepted as needed to ensure critical operating requirements are not impaired. These needs are as far-ranging as ensuring the physical protection of federal property, that controlled environments (such as freezers) will function and not be damaged, that scientific instrumentation will function and not be impaired, and that lab animals, plants, and other unique test organisms will not be damaged or destroyed."

Part of the Contingency Plan also outlines the following "Excepted Activities" that will continue during the shutdown, says Schillaci:

Superfund. Sites/projects predominantly associated with the Superfund program will continue where a failure to maintain operations would pose an imminent threat to human life. There is an expectation that an EPA presence, typically an on-scene coordinator or remedial project manager, will be required. The Agency says it will evaluate more than 800 Superfund sites to determine how many meet this criterion.

Emergency response and readiness. The EPA's mission is to prevent, limit, mitigate, or contain chemical, oil, radiological, biological, and hazardous materials during and in the aftermath of an accident or natural or man-made disaster and provide environmental monitoring, assessment, and reporting in support of domestic incident management. The strategy states that regional offices should utilize existing procedures to maintain their phone and response on-duty, on-scene coordinator(s) to maintain and ensure prompt support of environmental emergency responses that require EPA attention and/or action. In the event of a water-related incident where the threat to human life or property is imminent, individuals from the Water Security Division emergency response team would need to return to work to assist with the EPA's response efforts. Also, certain technical specialists from the Office of Water incident support team may need to return to work depending on the type of emergency.

Legal and enforcement. Law enforcement personnel involved in activities designed to protect human life and property from imminent threat will be excepted for the time minimally necessary to carry out such activities. A necessarily implied authorization exists when a statute directs the EPA or a governmental entity to perform an activity during a lapse in appropriations, and nonperformance of an attorney's support for that activity during the funding lapse would undermine implementation of the terms of the statute. For contingency planning for the shutdown in April 2011, the Department of Justice (DOJ) advised that the courts would remain, but the DOJ would request stays of some litigation and court-ordered deadlines for the duration of the shutdown. The strategy states that the EPA will support the DOJ as per the DOJ's direction and guidance.

"The EPA is a huge and very often an unwieldy and inefficient bureaucracy. Identifying which activities must be stopped, which employees must be furloughed, and which employees must continue to work is difficult enough," Schillaci writes. "Resuming the Agency's full workload at the end of the shutdown may be even more complex as decisions are made about whether to continue work that was interrupted or move on to more pressing matters. The longer the shutdown goes on, the more challenging it will be to sort out priorities and resume normal activity."

USDA Maintains Responsibilities
In a press release issued the day before the shutdown began, US Secretary of Agriculture Sonny Perdue detailed which functions of the U.S. Department of Agriculture (USDA) will remain available in the event of a lapse in government funding. (The USDA includes the US Forest Service.)

"There may be a lapse in funding for the federal government, but that will not relieve USDA of its responsibilities for safeguarding life and property through the critical services we provide," said Secretary Perdue. "Our employees work hard every day to benefit our customers and the farmers, ranchers, foresters, and producers who depend on our programs. During a shutdown, we will leverage our existing resources as best we can to continue to provide the top-notch service people expect."

Some USDA activities will be shut down or significantly reduced and some USDA employees will be furloughed. However, certain USDA activities would continue because they are related to law enforcement, the protection of life and property, or are financed through available funding (such as through mandatory appropriations, multi-year discretionary funding, or user fees)
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According to the press release, for the first week of a potential shutdown, 61 percent of employees would either be exempted or excepted from shutdown activities. As the shutdown continues, this percentage would decrease, and activities would be reduced as available funding decreases.

The press release stated that the following USDA activities would not be continued and would be shut down in an orderly fashion during a government funding lapse. These activities include:

• Provision of new rural development loans and grants for housing, community facilities, utilities and businesses.

• All recreation sites across the U.S. National Forest System, unless they are operated by external parties under a recreational special use permit.

• New timber sales.

• Most forest fuels reduction activities in and around communities.

• NASS statistics, World Agricultural Supply and Demand Estimates report, and other agricultural economic and statistical reports and projections.

• Investigation of packers and stockyards related to fraudulent and anti-competitive activities.

• Assistance for the control of most plant and animal pests and diseases unless funded by cooperators or other non-appropriated sources.

• Research facilities except for the care for animals, plants and associated infrastructure to preserve agricultural research.

• Provision of new grants or processing of payments for existing grants to support research, education, and extension.

• ERS Commodity Outlook Reports, Data Products, research reports, staff analysis, and projections. The ERS public website would be taken offline.

• Most departmental management, administrative and oversight functions, including civil rights, human resources, financial management, audit, investigative, legal and information technology activities.

• Mandatory Audits (Financial Statements, FISMA, and potentially Improper Payments) will be suspended and may not be completed and released on the date mandated by law.

• After the first week, farm loans and some farm payments (including direct payments, market assistance loans, market facilitation payments for those producers who have not certified production, and disaster assistance programs).

The press release also linked to a summary of USDA's shutdown plans, as well as a list of shutdown plans by USDA agency and office.

 

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