My experiences at CPSC during the 2011 and 2012 “shutdown showdowns” are hard to forget. We spent a considerable amount of time preparing for a potential shuttering of the agency because of the very strict nature of the Anti-Deficiency Act when it comes to which employees qualify as “excepted” or “essential.” Many of the same issues being discussed by the media today, like what to do with government issued smartphones to prevent non-excepted employees from reading emails and thereby unintentionally violating the law, are the same issues we discussed then. While I cannot answer the question of how CPSC will actually function during a shutdown because it never actually occurred while I was there, the CPSC’s shutdown procedures provide good insight into the only types of activities Commission employees are legally allowed to engage in during a government shutdown.
If the shutdown does occur, the agency’s shutdown procedures state that it would go from having 540 employees to 22 employees and be closed for business except to protect against imminent threats to human safety, to protect government property, or to provide necessary support for those activities. All work at the CPSC unrelated to these activities would cease, including ongoing investigations, civil penalty negotiations, and any enforcement proceedings or recalls that do not meet the “substantial and immediate threat to the safety of human life” threshold. Travel and attendance at conferences or meetings is also disallowed during this timeframe—meaning CPSC staff would not participate in the upcoming OECD and ICPHSO conferences, Commissioners would be unable to hold previously scheduled meetings with agency stakeholder groups, and the Chairman would be unable to participate in an AAFA product safety conference next week.
The exact list of employees that would remain is not provided but the threshold is set very high. The only employees that qualify are those whose “failure to perform their functions would result in an imminent threat to the safety of human life.” The Chairman and Commissioners are unaffected by the shutdown because of their status as presidential appointees but their staffs are not exempt. In fact, just because an employee is considered essential one day, does not mean that they will be the next. Every employee must submit a daily summary of the time they worked and a log of their activities for an ongoing determination of whether they remain essential. Non-excepted employees remain on call should an emergency arise.
So how would the CPSC function during a government shutdown? According to the agency’s shutdown procedures, unless it involves a product that poses a “substantial and immediate threat to human safety” or the protection of government property, it won’t.