Contingency Plans Highlight Effects of Future Shutdown on Federal Agencies

The House and Senate passed a "clean" continuing resolution (CR) Wednesday that would extend federal government funding through Dec. 11, temporarily averting a possible federal government shutdown. The House voted 277-151 to pass the CR (HR-719), while the Senate passed it 78-20. President Barack Obama planned to sign the CR Wednesday night, the White House said.

Like the FCC, the FTC website will also remain online during a shutdown. However, the FTC's website won't update, the agency said in its contingency plan. The FTC won’t issue any rulemakings during a shutdown or process Freedom of Information Act requests, it said. There will be no litigation activity unless a court doesn’t extend deadlines, the FTC said. The agency said it won't issue any other reports and won't hold any of its scheduled events. Employees responsible for the FTC’s Consumer Response Center, Do Not Call Registry, Consumer Sentinel and Spam Database will suspend operations and notify consumers and law enforcement partners that these systems are unavailable, the plan said.

Securing FTC IT infrastructure and its records, as well as notifying employees of a furlough should take no more than half a day, the plan said. It will take at least a half day to address the agency’s law enforcement docket and notify the courts and parties involved in certain agency matters that normal business has ceased and negotiations are suspended, it said. Multiple FTC lawyers and support staff also will be needed to secure massive files and databases that contain personal identifiable information and confidential information, cancel meetings, workshops, conferences and hearings, the FTC said. Employees must also ensure IT assets are properly turned off, powered down and, where necessary, dismantled to ensure the security of the agency’s infrastructure and data, the commission said.

Only essential FTC employees won't be furloughed under the contingency plan, including the four current commissioners. Ten FTC employees implicitly qualify as essential by law, but an additional 248 may be excepted from furlough under the agency’s contingency plan. An executive committee consisting of the agency’s executive director, Chairwoman Edith Ramirez's chief of staff, the commission's general counsel, bureau directors and exempt employees will meet each day. They will make recommendations to Ramirez “regarding which excepted employees may be furloughed or whether employees must be excepted from furlough and called to work to meet the demands of law enforcement actions to protect against immediate harm to life or government property interests or protect the [FTC’s] excepted personnel, property and IT infrastructure,” the plan said.

The FTC won't participate during a shutdown in proceedings on the International Competition Network, the Organisation for Economic Co-operation and Development, the U.N. Conference on Trade and Development or the Asia-Pacific Economic Cooperation forum “with respect to competition or consumer protection policy or enforcement issues,” the agency said. The FTC also won't participate in or help lead the London Action Plan, a global network of industry representatives and law enforcement agencies from more than 20 countries that work together to fight spam, phishing and other online threats, it said.

The Department of Justice’s Antitrust Division will largely continue normal operations, said its contingency plan. Employees exempt from furlough will continue to conduct or directly support ongoing criminal trials, prepare for criminal proceedings that have been scheduled and conduct ongoing civil litigation when proceedings can't be delayed, the plan said. Employees also are needed to prepare cases that must be filed due to statute of limitations deadlines and when antitrust division leadership determines not objecting to a proposed merger would “pose a reasonable likelihood of peril to property in which the United States has an immediate interest,” DOJ said.

More than 58 percent of the 3,047 employees in the Department of Homeland Security's National Protection and Programs Directorate (NPD), which coordinates most of the department's cybersecurity activities, would be exempted from furlough during a shutdown, DHS said in its contingency plan. Many of the department's cybersecurity activities are considered essential, but nonexempt NPPD functions can be ended within four hours of the start of a shutdown, DHS said. More than 84 percent of the FBI's 34,673 employees will be exempt from furlough during a shutdown because the agency “must be able to continue existing investigations, open new investigations, and respond to all contingencies which might arise during a lapse of appropriations,” DOJ said in its plan. The Department of Defense's cybersecurity activities “required to support national or military requirements necessary for national security or to support other excepted activities, including telecommunications centers” are exempt during a shutdown, DOD said in its plan.

Most key federal cybersecurity programs are at least partially exempted under current contingency plans and major private sector cybersecurity stakeholders have their own contingency plans, so “I don't think there would be a tremendous impact,” said Internet Security Alliance President Larry Clinton. But “there would be some degree of deficit” on cyberthreat information sharing since no agency would be totally unaffected by a shutdown, he said. “Even a short-term shutdown on the government side would be tremendously problematic and should be avoided at almost all costs. This is obviously an invitation for our opponents to attack.”

All Library of Congress and Copyright Office websites and systems would remain online during a government shutdown, but any functions that involve processing documents or applications would be delayed until after the government reopens, LOC said in a statement. All LOC facilities would also be closed, the library said. All CO functions were affected during the 2013 government shutdown and other previous shutdowns, “so I would expect that would be the same situation” if a shutdown occurs in December, said Sandra Aistars, George Mason University School of Law’s Center for the Protection of Intellectual Property director-copyright research and policy. “It underscores the importance of having [CO's] IT resources separated from [the LOC's] and having sufficient resources so they can continue to operate even on a reduced capacity during a shutdown. The [U.S. Patent and Trademark Office's] services don't stop during a shutdown but [CO's] do.”

The PTO, according to information provided in the Department of Commerce’s predecisional shutdown contingency plan, “has sufficient funds from other than FY16 appropriations to continue full operations for at least 4 weeks.” All 12,703 PTO employees will continue working during that period, the plan said. The PTO maintained its operations during the government shutdown two years ago. “It is likely that USPTO will remain open on operating reserves as they did in 2013,” a Commerce Department spokeswoman told us. However, after the period in which the PTO is operating on nonappropriated funding or if the office were not to utilize it, it will execute the original contingency plan of the Department of Commerce, according to the predecisional plan. The department’s plan calls for the PTO to maintain its patent and trademark application processing procedures and allow 117 employees, including PTO Director Michelle Lee, to continue working during the shutdown period.