Q&A: Shutdowns at FDA Are Complicated Part 2

(Part 1 can be found here) 

Q: Apart from the lack of progress on a Continuing Resolution, were there other reasons to conclude that the likelihood of a government shutdown increased this week?

A: At some point, political forces will align and a CR will be adopted. Later, presumably, appropriations funding bills will be enacted. However, very little occurred publicly this week to suggest movement toward compromise or even agreement on a short-term CR to buy more time. 

It is in the nature of these kinds of disagreements that the resolution and timing are opaque until they happen. So, it is possible that a shutdown can be avoided, but that seems less and less likely. 

Q: What are the categories of federal employees in a shutdown? 

A: There are three categories: 

Exempt. Employees are “exempt” from furlough if they are not affected by a lapse in appropriations. This includes employees whose functions are not funded by annually appropriated funds and would include employees carrying out activities funded by user fees. 

Excepted. “Excepted” is used broadly to refer to employees whose work is funded through annual appropriations but who are not furloughed because they are performing tasks that, by law, are allowed to continue during a lapse in appropriations. The OMB guidance on this can vary from year to year, but basically, these will be FDA staffers who work in areas where their absence would constitute a threat to public health and safety or property. 

Furloughed.  A furlough is the placing of an employee in a temporary non-duty, non-pay status because of lack of work or funds, or other nondisciplinary reasons. Again, year-to-year definitions might vary, but most individuals who are involved in the development of regulations or the conduct of administrative or policy work will be furloughed.

The best source of shut-down terminology and practices is the OMB document here.

Q: We have heard reference to essential personnel. How is that determined?  

A: Essential personnel is a term that applies to federal employees who are expected at work during a weather emergency. It is not a term used with shutdowns based on lapsed funding authority. 

Informally, “excepted employees” are sometimes referred to as “essential personnel” and furloughed employees are sometimes referred to as  “non-essential personnel.” 

Q: What is a Hobson’s Choice and does it apply to the appropriations impasse?

A: A Hobson’s Choice is when there appear to be choices, but in fact, there is only one possible course of action. Some commentators have said that House Speaker Kevin McCarthy faces a Hobson’s Choice…he appears to have choices but he will eventually have no choice but to compromise with the Senate, moderate Republicans, and Democrats.  

This is comforting to many who hope for a quick resolution, but it isn’t necessarily true. Just because we can’t imagine other choices, doesn’t mean they don’t exist or won’t emerge from the back and forth of high-level politics.

Editorial Note:
The Analysis and Commentary section is written by Steven Grossman, Executive Director of the Alliance for a Stronger FDA.

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Prospects for Government Shutdown Increase Without Progress on Continuing Resolution

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Q&A: Shutdowns at FDA Are Complicated