Federal Mine Safety and Health Review Commission

FY 2023 Lapse in Appropriations

Contingency Plan

In accordance with A-11, section 124.2, the Federal Mine Safety and Health Review Commission

plans to enact an orderly shutdown of the Commission in the absence of appropriations is 

summarized in detail below. 

Lapse Plan Summary Overview

Estimated time (to nearest half day) required to complete shutdown activities: 0.5 days

Total number of agency employees expected to be on board before 

implementation of the plan: 

56 employees 

Total number of agency employees expected to be furloughed under the plan 

(unduplicated count): 

45 employees 

Total number of employees to be retained under the plan for each of the following categories (may 

include duplicated counts): 

Compensation is financed by a resource other than annual appropriations: 0 employees 

Necessary to perform activities expressly authorized by law: 8 employees 

Necessary to perform activities necessarily implied by law: 3 employees 

Necessary to the discharge of the President's constitutional duties and powers: 0 employees 

Necessary to protect life and property: 11 employees 

Brief summary of significant agency activities that will continue during a lapse: 

The Commission will adjudicate only those Federal Mine Safety and Health Act of 1977 disputes that arise 

from a mine emergency or where there is a reasonable likelihood that either the safety of life or the protection 

of property would be compromised in some significant degree by failure to provide prompt adjudication.

Brief summary of significant agency activities that will cease during a lapse: 

All other agency activities except as noted above will cease during a lapse, regardless of its duration.
1. OVERVIEW

The purpose of this instruction is to establish procedures to govern the operations of the 

Federal Mine Safety and Health Review Commission (FMSHRC) in the event of a lapse in 

appropriations. All agencies are required to maintain a contingency plan in the event of an 

appropriations hiatus. 

The Antideficiency Act restricts the conduct of business by agencies during a lapse of 

appropriations. The Antideficiency Act generally prohibits agency heads and their employees 

from making or authorizing expenditures or obligations in excess of appropriations; making 

or authorizing expenditures or obligations of funds required to be sequestered under Section 

252 of the Balanced Budget and Emergency Deficit Control Act of 1985; and accepting 

voluntary services for the United States (US) or employing others to perform personal 

services in excess of that authorized by law, except in cases of emergency involving the 

safety of human life or the protection of property. Violations of the Antideficiency Act can 

result in administrative and criminal penalties.

2. SCOPE

This instruction applies to all offices and employees within FMSHRC.

3. POLICY

In the event of an appropriations hiatus, it is the policy of FMSHRC to:

A. Commence the orderly and expeditious shutting down of all but emergency FMSHRC

functions by securing files, property, and office facilities. 

B. Ensure that FMSHRC meets its responsibilities to the parties in current case 

proceedings consistent with the Antideficiency Act. 

C. Ensure that FMSHRC employees are fully informed as to the reasons for the 

shutdown; and that payroll and other employee benefit responsibilities are met. 

4. OPERATIONS

This plan provides FMSHRC the required flexibility to: protect Federal legal actions already 

taken (but not pursue new cases) and to deal with events that might occur during a shutdown. 

Here are the main points of the plan:

The plan assumes that Headquarters (HQ) will have a minimal staff present. The current 

plan calls for the Chair and 4 Commissioners (currently 1 Commission seat is vacant), the 

Chief Operating Officer, the General Counsel, the Chief Administrative Law Judge, the 

Director of Information Technology, the Supervisory Attorney Advisor, and an 

Administrative Officer, a potential total of 11 employees.
5. RESPONSIBILITIES

The plan assigns the following responsibilities:

A. The Chair and Commissioners are responsible for ensuring that FMSHRC offices 

take all necessary actions related to shutdown activities. 

B. The Chief Operating Officer is responsible for ensuring that all necessary and 

appropriate actions are taken regarding administrative activities to ensure the orderly 

and expeditious shutdown of FMSHRC activities. These actions include the issuance 

of appropriate announcements and directives and implementing the contingency plan.

C. The General Counsel is responsible for ensuring that the Office of the General 

Counsel staff take all necessary actions related to shutdown activities. The General 

Counsel will continue to provide the minimal level of legal support necessary for 

otherwise excepted activities of the Commission and its operating units. This includes 

legal advice incidental to emergency functions that relate to the safety of human life or 

the protection of property, including that related to ongoing litigation unable to be 

suspended, and administrative law functions related to excepted Commission activities.

D. The Chief Administrative Law Judge is responsible for ensuring that the Office of 

the Chief Administrative Law Judge staff take all necessary actions related to 

shutdown activities. Also, provide emergency adjudication and monitor pleadings for 

those relating to a mine emergency or implicating a reasonable likelihood that either 

the safety of life or the protection of property would be compromised in some 

significant degree by failure to provide prompt adjudication.

E. The Director of Information Technology will continue to execute and complete 

critical IT duties, responsibilities, oversight, and coordination across FMSHRC in 

support of otherwise excepted activities and functions. Coordination with IT 

contractors to prevent potential threats to the security, confidentiality and integrity of 

agency information and information systems.

F. The Supervisory Attorney Advisor will act as docket clerk to maintain the basic 

functions of the eCMS filing system to facilitate the continued operation in the event 

of emergency hearings and to prevent destruction of information or release of 

confidential information.

G. The Administrative Officer will perform only limited 'excepted' and 'necessarily 

implied' functions, to include 1) determinations, in consultation with the Chairman 

and Commissioners, as to what is excepted or necessarily implied work; 2) 

administrative work necessary to disburse benefit payments under entitlement 

programs for which an indefinite appropriation provides the funding for the benefits.

All Agency Employees are responsible for taking appropriate action, consistent with the 

guidance given in this contingency plan, regarding the orderly shutdown of activities. When 

there is reason to believe that a shutdown is likely to occur, management will ask all 

FMSHRC employees to update, if necessary, their contact information.
6. STAFF RETAINED AFTER SHUTDOWN

Presidential Appointees (PAS) are excepted by statute and will constitute the core of the 

Headquarters staff available to evaluate situations as they arise and determine the appropriate 

response: 

1 – Chair (PAS) 

4 – Commissioners (PAS)

*Above numbers are flexible due to their staggered tenures.

Advisory staff will augment the core group: 

1 – Chief Operating Officer

1 – General Counsel

1 – Chief Administrative Law Judge

1 – Director, Information Technology

1 – Supervisory Attorney Advisor

1 – Administrative Officer

The Advisory staff will assist in ensuring the orderly shutdown of operations and will also 

identify and determine how to address emergency situations affecting ongoing federal law 

enforcement activities or posing an imminent threat to human life and the protection of 

property. The Commission has determined that any emergencies requiring immediate 

attention can be identified at the headquarters level and will have no excepted personnel in 

any of its field offices retained for that purpose. Additional headquarters and/or field staff 

may be called to handle emergencies arising during an appropriations lapse.

7. RESUMING OPERATIONS

Once operations are restored, furloughed employees will be notified via personal phone or

personal email to report to work the next day and resume operations. Supervisors will allow 

the use of annual leave, compensatory time off, or credit hours if reporting to work on the 

day specified by the agency is not possible for employees to return to work. All Commission 

functions, including oversight and issuance of contractor work orders will resume 

immediately after the furlough ends.

8. GENERAL INFORMATION

Use of agency information technology systems, communications systems, or other resources 

during period of a shutdown: No agency employee shall use FMSHRC information 

technology systems, communications systems, or other resources during the period of a 

shutdown unless they are designated as an excepted employee. Non-essential information 

technology usage is prohibited.