Display Related Directives to this directive.

This directive was reviewed and certified as current and necessary by Bruce M. Carnes,
Director, Office of Management, Budget and Evaluation/Chief Financial Officer, 9/18/02.

U. S. Department of Energy	ORDER
Washington, D.C.	DOE O 137.1A

	Approved: 8-30-99
SUBJECT: PLAN FOR OPERATING IN THE EVENT OF A LAPSE IN APPROPRIATIONS

1. OBJECTIVES. To establish the Department of Energy (DOE) plan and procedures for

a. continuing operations using balances from prior years, if available, during a lapse
in appropriations and

b. upon exhaustion of all available balances, (1) continuing only those essential
functions related to emergencies involving the safety of human life or the
protection of property and (2) initiating orderly shutdown of those activities not
considered essential.

For background information concerning this Order, see Attachment 1.

2. CANCELLATION. DOE O 137.1, PLAN FOR OPERATING IN THE EVENT OF A
LAPSE IN APPROPRIATIONS, dated 9-4-98.

3. APPLICABILITY. This directive applies to all Departmental elements.

4. REQUIREMENTS.

a. Timing.

(1) Initial fiscal year approved funding programs (AFPs) are issued prior to
October 1 for guidance purposes only. However, if Congress has not
passed appropriation legislation to finance the continuation of operations,
AFP levels will be based on the most conservative information available;
(i.e., either the President's budget or the House or Senate appropriations
committee marks, whichever is lowest). If Congress fails to pass
appropriations for the new fiscal year by October 1, it is likely a continuing
resolution, will be enacted to provide limited, interim funding. In this
situation, allotments will be issued in accordance with provisions of the
continuing resolution.
(2) A continuing resolution provides budget authority for specific ongoing
activities for a specific period of time, and usually specifies a maximum rate
at which DOE may incur obligations. The rate is based on the President's
budget or the House or Senate appropriations committee marks. The
continuing resolution may state that obligations may not exceed the current
rate or must be the lower of the amounts provided in the appropriations
bills passed in the House or Senate.

(a) Prior to the beginning of the fiscal year, AFPs must be prepared
based on the most conservative funding levels for the new fiscal
year. These AFPs are issued, but the "Advice of Allotment" (HQ F
2260.2) issued in conjunction with the AFP is restricted to the
amount permitted under the terms of the continuing resolution.
The funds provided by the allotment may be applied in any
proportion throughout the AFP; however, the funds may not be
used to

1 exceed any limitations or provisions specified in the terms of
the continuing resolution or

2 exceed any obligation control levels established in the AFP.

(b) The DOE Office of Budget will provide additional information
pertaining to operating under a continuing resolution, as necessary
to ensure the orderly execution of program funds during this
period.

b. Operating in the Absence of New Appropriations. The Attorney General of the
United States issued an opinion on 4-25-80, that the language and legislative
history of 31 United States Code (U.S.C.) 1341, the Anti-Deficiency Act,
unambiguously prohibits Federal officials from incurring obligations in the absence
of appropriations. Essentially, in the absence of appropriations for the new fiscal
year, DOE may incur no obligations that cannot lawfully be funded from prior year
appropriations, unless such obligations are otherwise authorized by law. If no
unobligated amounts from unexpired appropriations exist, DOE may incur
obligations, under authority of 31 U.S.C. 1342, only for emergencies involving the
safety of human life or the protection of property.

(1) If neither regular appropriations nor a continuing resolution is enacted,
only funds currently obligated to the integrated contractors and the
unobligated balances for unexpired appropriations will be available for
initial fiscal year operations. Under this situation, each organization must
carefully manage the funds available to ensure that only mandatory
requirements are funded until an appropriation or continuing resolution is
passed. Payroll and related fixed costs must be given the highest priority.

(2) If a lapse in appropriations is likely to occur, the following actions will be
taken:

(a) In July, the Office of Budget, Budget Execution Team will issue a
call to program offices to obtain an estimate of the unobligated
balances for all unexpired appropriations as of September 30.

(b) In September, the Budget Execution Team will request estimates of
the mandatory requirements (e.g., payroll, contracts, etc.)
chargeable to each appropriation for the month of October. These
requirements should be provided in weekly increments and
categorized as either "Payroll and Related Obligations" or "All
Other Mandatory Obligations," as applicable. The "All Other
Mandatory Obligations" category must specify the nature of the
requirement, and items in this category should be prioritized. In a
no-funds situation, funds will be allotted only where mandatory
requirements have been identified.

(c) When estimating mandatory obligational requirements, it is
important to consider any funds previously obligated to the
integrated contractors. When developing requirements, care must
be taken to avoid duplicating any amount currently obligated for
approved work scope.

(d) The Budget Execution Team will equitably distribute the unexpired
prior-year, unobligated balances among allottees within the same
appropriation to meet minimum needs (e.g., salaries and benefits).
Unobligated balances are not available for obligation until an
Advice of Allotment (HQ F 2260.2) is issued for the new fiscal
year.

(3) Because DOE is funded by two public laws, which contain multiple
appropriation accounts, a no-funds situation could occur for the activities
funded by appropriations contained in either one or both public laws. If
one of the public laws is not enacted and no continuing resolution is
passed, DOE would face a no-funds situation for selected activities. Under
that situation, Headquarters elements and field offices would be required to
identify the affected programs, and the actions identified in paragraph 4b(2)
would apply only to those activities.

(4) The potential exists for multiple no-funds situations. If the continuing
resolution is of a short duration, DOE must prepare for a no-funds
situation each time the continuing resolution expires. Though a long-term
(up to a year) continuing resolution may be passed, it is more likely the
continuing resolution will cover a period of less than 30 days, often less
than a week. Should this situation occur, guidance will be provided as
each continuing resolution expires, and available budgetary resources will
be distributed, as law permits. Because of the potential for a no-funds
situation occurring upon expiration of a continuing resolution, funds
provided under a continuing resolution should be used before other
available unobligated balances. This will preserve the unobligated balance
of unexpired appropriations for operations in the event a no-funds situation
does occur.

c. Operating Under a No-Funds Situation. If funds have expired, and the funding
lapse is anticipated to be temporary, DOE will perform certain essential activities.
During a prolonged funding lapse, the Department may initiate obligations
necessary for the orderly shutdown of operations.

(1) Essential activities to be continued during a no-funds emergency situation
include those performed by DOE that are authorized by law and those
involving the safety of human life or the protection of property. Some
examples are

(a) medical care for inpatients;

(b) protection of Federal lands, buildings, and equipment;

(d) emergency and disaster assistance;

(e) preservation of the money and banking systems;

(f) power production and maintenance of the power distribution
system; and

(g) protection of research property.

The activities described in Attachment 2 are representative examples of
essential activities currently performed by DOE and should be used as a
guide by Departmental elements to identify essential activities that should
be continued during a no-funds, emergency situation. However, the
decision to continue such activities during a no-funds situation depends on
the specific circumstances at that time. These activities have been
identified on a generic basis; not every action within an essential activity is
necessarily one that protects life or property. The heads of Departmental
elements, in conjunction with the General Counsel and appropriate
Secretarial Officers, will determine which functions are to be continued.
Obligations incurred in connection with essential activities will be reviewed
by the committee established pursuant to paragraph 5c(4).

(2) Essential activities must be performed at the minimum level possible. The
minimum number of staff and support services may also be maintained to
perform each of these essential activities.

d. Effect of Appropriation Type on Shutdown.

(1) All activities not approved as essential must begin an orderly shutdown when
all funds available for obligation are exhausted (i.e., no funds). The actual
timetable for shutdown depends on the type and amount of funding carried
over and available to the organization, function, program, or activity.
(2) In the case of annual funds, any unobligated balances expire for purposes
of incurring new obligations at the end of the fiscal year, and shutdown
commences immediately. Departmental elements funded by no-year or
unexpired multiyear appropriations must continue to perform all activities
at the minimum level possible until all available funding carried over from
prior fiscal years has been exhausted. If Congress has not enacted an
appropriation or continuing resolution at that time, those Departmental
elements must commence shutdown activities. Each Departmental element
with funds available should exercise prudence in making new obligations.

(3) In the case of DOE activities financed by revolving funds, shutdown
activities commence if the fund revenues are interrupted or exhausted. If
the fund revenues are decreasing or likely to be interrupted, programmatic
activities should be reduced to a minimum level to prolong operation of the
fund.

e. Actions To Be Taken Prior to Initiating Shutdown Activities.

(1) In the event of a funding lapse, carryover funds from prior fiscal years
should be used to forestall, as long as possible, interruptions in activities
funded by multiyear or no-year appropriations. Prior to the initiation of
shutdown activities, all DOE operations should be limited to the minimum
necessary activities to preserve available funds and to continue all possible
operations and functions. The Chief Financial Officer will reallocate
available funds to the extent permitted by law to forestall the interruption
of funding. Reallocation of funds will be made as follows:

(a) The Office of Budget may notify organizations by telephone that
funds have been reallocated below the appropriation and fund
account level. Such changes must be documented and immediately
reflected in formal written revisions to DOE F 2260.2, "Advice of
Allotment," as provided in the DOE Accounting Handbook.

(b) If DOE has specific statutory authority to reallocate and transfer
funds between appropriations and/or fund accounts, the transfers
will be effected in accordance with the standard fiscal procedures
governing appropriation transfer of DOE funds. Such transfers
generally will be effected on Standard Form (SF) 1151,
"Nonexpenditure Transfer of Funds."

(c) As provided in Office of Management and Budget (OMB) Bulletin
80-14, amounts contained in OMB apportionments may be adjusted
without submission of a reapportionment request.

(d) After all available funds have been reallotted or transferred and the
available resources finally exhausted, the organizations, functions,
programs, or activities funded through the now-depleted
appropriations must begin the orderly shutdown of all activities not
identified as essential.

(e) DOE may incur obligations for essential and shutdown activities
once available funds have been exhausted; however, no funds will
be disbursed for these obligations without the enactment of an
appropriations act or continuing resolution.

(2) If funds are available for continuing certain programs, staff time should be
used efficiently to carry out those operations. Plans may be prepared to
detail all possible personnel to organizations that have available funds. An
implementation plan should be developed before the shutdown is initiated
to assign these personnel to specific, funded functions and work tasks.
These personnel resources should be transferred only to eliminate backlogs
or accelerate accomplishments in those funded program areas.

(3) To optimize use of DOE resources, program managers must compare
programmatic priorities with pending and ongoing contractual and
assistance activities as soon as possible to determine which activities to
continue or cancel. Managers should deobligate funds from lower-priority
activities, where feasible.

(4) The review committee established pursuant to paragraph 5c(4) should
develop operational procedures for the required review of obligating
documents.

f. Instructions for Shutdown of Nonessential Activities. No actions under this
contingency plan are to be initiated without written notification from the Secretary
that the plan is to be put into effect.

(1) Immediate Shutdown (Days 1 and 2).

(a) Only personnel designated as emergency personnel report to work
during Departmental shutdowns.

1 Emergency employees perform duties vital to the continuity
of activities described in paragraph 4c(1) and are required to
be at work regardless of emergency situations or any
general dismissal authorization. These employees will not
be furloughed under the provisions of this Order and will
not be dismissed or excused from work due to emergency
situations described in OMB Memorandum, "Shutdown of
Agency Operations Upon Failure by the Congress to Enact
Appropriations," dated 8-28-80 (amended by OMB
Memorandum, "Agency Operations in the Absence of
Appropriations," dated 11-17-81, and further updated by
Department of Justice memorandum, "Government
Operations in the Event of a Lapse in Appropriations,"
dated 8-16-95).

2 Emergency personnel must be identified by job title; each
essential employee must be notified of his or her obligations.

3 Heads of Departmental elements must submit a list of
emergency employees by name and job title to the Director
of the Office of Management and Administration for
approval prior to October 1, if a no-funds situation appears
likely.

(b) If a funding lapse is likely to occur, the Director of the Office of
Management and Administration must authorize the Deputy
Director of the Office of Management and Administration to
transmit a sample "Furlough Decision Notice Due to Lapse of
Appropriations" (5 Code of Federal Regulations, Part 752) to
appropriate servicing personnel offices. This notice should be
issued prior to furlough, but when this is not feasible, any
reasonable notice (telecommunication, written, or oral) is
permissible. If prior written notice is not provided, DOE must
provide the employee with a written decision notice at the earliest
possible time following the furlough.

(c) The affected servicing personnel offices must prepare a specific
furlough notice for each organization affected and transmit the
letter to the designated point of contact.

(d) The point of contact must distribute copies of the specific furlough
notice to each employee not designated essential. Employees must
acknowledge receipt of the notice in writing; to do this, employees
may sign a list indicating they have received the notice. The final
list of all employees to whom notices have been issued will be
submitted to the servicing personnel office so that the appropriate
personnel actions may be effected.

(e) To facilitate the issuance of furlough notices, the Chief Financial
Officer must notify the Director of the Office of Management and
Administration when funds for specific organizations or functions
remain for approximately 2 workdays only.

(f) Members of the Senior Executive Service (SES) will be furloughed
in accordance with DOE 3350.1, FURLOUGH IN THE SENIOR
EXECUTIVE SERVICE.

(g) Presidential appointees, who are outside the SES and are not
otherwise subject to 5 U.S.C. 6301, the "Federal Employees Family
Friendly Leave Act," and attendant regulations governing leave in
the Federal service, are not subject to furlough.

(h) The specific authority for furloughing individuals working under
mobility agreements pursuant to the Intergovernmental Personnel
Act of 1970 (42 U.S.C. 4701), in organizations either inside or
outside the Federal Government, will depend on the nature of
individual agreements, the status of the appointments, and/or the
funding arrangements for the assignments. As a general rule, the
following principles apply in determining whether to furlough
personnel on Intergovernmental Personnel Act mobility
assignments:

1 Individuals from non-Federal organizations on appointments
to DOE are subject to furlough in the same manner as other
employees.

2 Individuals on detail to Federal agencies from non-Federal
organizations may continue working, provided the
non-Federal organizations pay the total costs of the detail.

3 Personnel on detail to Federal agencies from non-Federal
organizations that share the costs of the detail may continue to
work, if the Federal portion of the cost was obligated from
prior appropriations at the time of the Intergovernmental
Personnel Act mobility agreements. If a furlough takes place in
the second year of the agreement and no funds are
appropriated at that time, the assignment should be terminated.

4 Personnel on detail to Federal agencies from non-Federal
organizations that do not pay or share the costs of the detail
are subject to furlough in the same manner as other
employees.

(i) Temporary employees must be furloughed in the same manner as
permanent employees.

(j) An employee on official travel will not be furloughed until either the
period of travel ends or the provisions for a longer lapse in
appropriations are implemented, unless the head of the
Departmental element or designee determines that the cost of
terminating the travel, returning the employee to his or her official
duty station, and resuming the travel later, if necessary, is less than
retaining the employee in a pay status.

(2) Day 3. Extended shutdown procedures begin if Departmental elements
receive written notification from the Secretary that neither a continuing
resolution nor an appropriation is forthcoming.

(a) Employees required to complete shutdown activities and those
additional employees required to maintain essential activities during
the shutdown period will be recalled. The status of emergency
employees will be identified as "nonpay duty." Such employees are
advised that the United States will not contest its legal obligation to
pay for their services, even in an absence of appropriations.

(b) Supervisors will inform employees (in writing or by
telecommunication) that they may perform only those activities
identified as essential or part of operation shutdown.

(c) Supervisors must contact any employee on travel status and advise
him or her to return to the duty station immediately, unless the
employee volunteers to be furloughed at the travel site and such
arrangement is in the best interest of the Federal Government.
Travelers should return in accordance with normal Federal Travel
Regulations.

(d) The activities on Day 3 of an orderly shutdown of operations
include, but are not limited to the following:

1 Canceling meetings, hearings, and other previously arranged
business and notifying parties such as other Federal
agencies, State governments, and private entities involved in
Departmental matters of the cessation of normal business.

2 Documenting the status of cases and projects so they can be
resumed, transferred, or otherwise appropriately handled
when the funding situation is determined.

3 Taking steps to plan, control, and maintain orderliness
throughout the phasedown of operations.

4 Performing the fiscal and accounting tasks required to
maintain accountability and reporting obligations and
expenditures of all funds.

5 Preparing files for permanent storage and preparing for the
orderly transfer of property and records as directed by the
General Services Administration (GSA) and the Office of
Personnel Management (OPM). Property and records are
not to be transferred until 30 days after shutdown activities
have commenced, and then only after determination that the
funding interruption will be substantial or indefinite.

6 Preparing inventories of property and records to ensure
protection of the Government's interests and the claims of
affected private entities and individuals.

7 Performing those tasks necessary to protect classified
information, including listing all papers to be accorded
classified status and securing all appropriate files and
automatic data processing information.

8 Performing requisite administrative functions, such as
processing the payroll for the pay period through September
30 of the previous fiscal year or the expiration of the
previous continuing resolution, and continuing those
functions with carryover funds until funds are exhausted.

9 Conducting other functions that contribute directly to the
orderly shutdown of DOE, and protect life, and safeguard
Government property and records.

(e) Supervisors should continue to identify employees or positions that
are necessary to perform the functions associated with the orderly
cessation of activity. These employees will continue to work for
the length of time necessary to complete shutdown activities. The
selection of employees to participate in shutdown activities should
be based on the following criteria:

1 the number of employees or positions necessary for the
orderly termination of an activity and

2 the special knowledge, skills, or abilities required to
terminate activities.

(3) Day 4.

(a) Employees must continue those activities identified in paragraph
4f(2)(d).

(b) The Director of the Office of Management and Administration must
communicate final determinations on all shutdown or essential
activities to the Director of Personnel.

(4) Day 5 and Beyond.

(a) Employees must continue those activities identified in paragraph
4f(2)(d).

(b) As employees required to perform shutdown activities complete
their assigned work, they will be placed in a furlough status. Each
employee's supervisor is responsible for promptly notifying the
servicing personnel office through the organizational point of
contact when an employee is placed on furlough so the proper
documentation can be placed in the employee's official personnel
folder.

(5) All shutdown activities should be accomplished to facilitate efficient
reactivation of operations when funds are again available.

g. Prohibited Activities.

(1) Unless they are necessary to the direct support of authorized essential
activities, the following will not be permitted after available funds are
exhausted:

(a) awards of grants, contracts, cooperative agreements, scholarships,
and small purchases;

(b) hiring of personnel or extending the appointment of personnel
whose appointments have expired, if doing so would result in
unauthorized obligation of funds during a lapse of appropriations;

(c) travel of persons and transportation of things; persons in travel
status on the first day of a no-funds situation will return to their
duty stations as soon as possible, except as provided in Paragraph
4f(1)(j);

(d) meetings, conferences, and seminars;

(e) new or continued employment of experts and consultants, if such
actions will incur a financial obligation;

(f) training classes and other training activities;

(g) use of equipment and utilities not related to authorized activities
where their use creates liabilities for the Government beyond those
existing on the date of the funding lapse; and

(h) authorization of overtime.

(2) The list in paragraph 4g(1) should not be considered exhaustive. Actions
taken should be consistent with the Attorney General's opinion (see letters
dated 4-25-80 and 1-16- 81) and subsequent OMB guidance. Questions of
interpretation should be referred to the Office of the General Counsel.
5. RESPONSIBILITIES.

a. Secretary.

(1) Notifies OMB, OPM, the Department of the Treasury, and GSA
immediately upon initiation of shutdown activities.

(2) Notifies DOE elements to begin orderly shutdown of operations not
identified as essential when funding is depleted.

(3) Notifies all personnel of possible fund interruptions and furlough actions.

(4) Designates one organization to coordinate activities associated with the
shutdown plan.

b. Secretary or Deputy Secretary. As Chairman of the Executive Personnel Board,
reviews recommendations on SES employee positions, including positions
identified as necessary to maintain and continue essential activities and those
needed to perform shutdown activities, and makes the final determination on the
furlough of SES appointees in accordance with the provisions of DOE 3350.1.

c. Heads of Departmental Elements.

(1) Review annually the list of essential activities to determine whether any
activities should be deleted or new functions added; submit this information
to the Office of Management and Administration, as required.

(2) Identify those employees necessary to maintain and continue essential
activities and those needed to perform shutdown activities; submit this
information to the Office of Management and Administration, as required.

(3) Designate an individual from each organization to serve as the point of
contact for instructions pertaining to overall implementation of the
shutdown plan and subsequent reactivation of DOE operations.

(4) Prior to initiation of a shutdown mode of operations, appoint
representatives from each organization to act as a review committee. The
review committee must concur in all funding actions program managers
deem to be essential in the absence of needed appropriations during a fiscal
year. The review committee must have one representative from the
appropriate General Counsel's Office and one representative from the
organization's financial management group. At Headquarters, the financial
management representative must be a member of the Chief Financial
Officer's staff. The signature of each reviewer must be affixed to every
program release document or obligation document initiated during the
funding hiatus.
(5) Notify appropriate bargaining agents of any proposed shutdown due to a
lack of funds as soon as feasible after the decision has been made and prior
to delivery of furlough notices to employees.

(6) Negotiate the impact and implementation of the shutdown of operations in
accordance with DOE policy and the Federal Labor Management Relations
statute (5 U.S.C., Chapter 71). The decision to shut down operations due
to a lack of funds is not negotiable; therefore, negotiations will not preempt
that decision.

d. General Counsel. Assists the Secretary and heads of Departmental elements in
identifying both the essential functions performed by DOE and the associated
emergency personnel required to perform these functions to ensure compliance
with OMB guidance and opinions of the Attorney General.

e. Chief Financial Officer. Notifies the Secretary when funds for specific functions or
organizations are depleted and shutdown procedures are to be implemented. The
Chief Financial Officer, upon direction from the Secretary

(1) Establishes special accounts in the financial information system (FIS) to
accumulate all obligations incurred in maintaining essential activities and
terminating Departmental operations as funds are depleted.

(2) Redistributes unobligated, unexpired funds to meet urgent requirements
and to delay, to the extent possible, the shutdown of functions and
organizations.

(3) Notifies the Director of the Office of Management and Administration,
through the Director of Personnel, when funds for specific organizations or
functions remain for only 2 workdays.

f. Director of the Office of Management and Administration (through the Director of
Personnel and upon direction from the Secretary).

(1) Obtains and reviews lists of essential activities and related emergency
personnel from heads of Departmental elements, as required.

(2) Delegates to servicing personnel offices authority to issue furlough notices
to the field elements.

(3) Prepares examples of furlough notices consistent with OPM and DOE
regulations and policies, and transmits the examples to the appropriate
servicing personnel offices.
(4) Notifies employees of their rights and benefits while they are in furlough
status.

(5) Takes necessary actions to transfer custody of the Department's personnel
records to OPM and GSA.

g. Heads of Contracting Activities.

(1) Suspend acquisition and assistance awards pending validation of program
award decisions.

(2) Facilitate the deobligation of funds for unexpired appropriation accounts
through contract modifications to maximize funds availability for essential
activities.

(3) Modify contracts in accordance with program determinations.

h. Program Managers at Headquarters and Field Elements.

(1) Review all pending and active program release or obligation documents to
determine whether the action should be continued or canceled.

(2) Submit each program release document or obligation document to the
appropriate review committee established during a funding hiatus, pursuant
to paragraph 5c(4). The committee will review the action to determine
whether the request appears to be for an essential function.

(3) Certify on each program release document that the commitment or
obligation of funds is essential in accordance with the functions permitted
during a period of funding hiatus.

i. Servicing Personnel Office(s). Prepare a specific furlough notice for each
organization affected and transmit the letter to the designated point of contact.

6. REFERENCES.

a. Title 5 CFR, Part 752, "Adverse Actions," which incorporates the principal
statutory requirements for suspensions of 14 days or less for employees in the
SES.

b. Title 5 U.S.C., Chapter 71, "Labor Management Relations," protects the right of
employees to organize, bargain collectively, and participate through labor
organizations of their own choosing in decisions that affect them.

c. Title 5 U.S.C., Section 6301, "Federal Employees Family Friendly Leave Act,"
which governs leave in the Federal service.

d. Title 31 U.S.C., Section 1341, "Anti-Deficiency Act," which states that no Federal
officer or employee may authorize Government obligations or expenditures in
advance of or in excess of an appropriation, unless otherwise authorized by law.

e. Title 31 U.S.C., Section 1342, which states no Federal officer or employee may
accept voluntary services, except as authorized by law.

f. DOE 3350.1, FURLOUGH IN THE SENIOR EXECUTIVE SERVICE, dated
9-13-82, which establishes Departmental procedures for furlough of SES
employees.

g. DOE O 135.1, BUDGET EXECUTION - FUNDS DISTRIBUTION AND
CONTROL, dated 9-30-95, which sets forth DOE requirements and
responsibilities for the distribution and control of all obligational authority available
to DOE for conducting operations.

h. DOE M 135.1-1, BUDGET EXECUTION MANUAL, dated 9-30-95, which
provides detailed procedures for distributing and controlling DOE funds, and
establishes the procedures for reprogramming, restructuring, and initiating
appropriation transfer actions for DOE.

i. DOE Accounting Handbook, dated 9-30-95, which presents DOE standards,
procedures, and operational requirements in support of DOE accounting policies,
principles, and legal requirements.

j. General Accounting Office Report, "Funding Gaps Jeopardize Federal
Government Operations," dated 3-3-81, which addresses the problems created by
late appropriations and fund interruptions; describes the factors that delay the
enactment of legislation; and recommends action to prevent funding delays in the
future.

k. OMB Bulletin 80-14, as amended 8-20-82, "Shutdown of Agency Operations
Upon Failure by Congress to Enact Appropriations," which provides policy
guidance and instructions for actions to be taken when Congress fails to enact
appropriations.

l. OMB Memorandum, "Agency Operations in the Absence of Appropriations,"
dated 9-30-80, which states that in the absence of new appropriations, agencies
may continue only those activities otherwise authorized by law, and those
necessary to begin phasing down other activities.

m. Opinion of the Attorney General, in a letter from Benjamin R. Civiletti to the
President, dated 4-25-80, which states that upon a lapse of appropriations, Federal
agencies may incur no obligations that cannot lawfully be funded from prior
appropriations unless such obligations are otherwise authorized by law. It further
states that the Department of Justice would enforce the criminal provisions of the
Anti-Deficiency Act in the case of future willful violations.

n. Opinion of the Attorney General, in a letter from Benjamin R. Civiletti to the
President, dated 1-16-81, which provides the basis for OMB's guidance of
9-30-80, on agency operations during a lapse of appropriations and presents
additional questions of interpretation.

o. Opinion of the Assistant Attorney General, Walter Dellinger, in a letter to Alice M.
Rivlin, Director, OMB, dated 8-16-95, which clarified that only those functions
considered emergencies involving the safety of human life or the protection of
property would continue upon exhaustion of available funding.

7. CONTACT. For additional information, contact CR-13, 301-903-2818.

BY ORDER OF THE SECRETARY OF ENERGY:

DAVID M. KLAUS
Director of Management
and Administration ATTACHMENT 1

BACKGROUND INFORMATION
OPERATING IN THE EVENT OF A LAPSE IN APPROPRIATIONS

1. The Attorney General issued an opinion on 4-25-80, concerning the effect of the
Anti-Deficiency Act on a Federal agency that experiences a prolonged lapse in its
appropriations from Congress once its current appropriations have expired. The Attorney
General determined that an agency may not incur any obligation that cannot lawfully be
funded from prior appropriations unless such obligations are otherwise authorized by law.
The Department of Justice must actively enforce the criminal provisions of the
Anti-Deficiency Act. The Attorney General determined that an agency may incur limited
obligations during a prolonged lapse in funding, if those obligations are necessary for the
orderly termination of the agency's activities.

2. The Office of Management and Budget (OMB) subsequently provided policy guidance
and instructions for executive branch agencies to follow when Congress fails to enact
regular appropriations, a continuing resolution, or a needed supplemental appropriation,
thereby interrupting fund availability. Each agency is required to develop a contingency
plan for the orderly shutdown of operations. The OMB memorandum of 8-20-82,
included examples of essential activities that could be continued during these funding gaps
because they involve the safety of human life and the protection of property.

3. On 1-16-81, the Attorney General issued a second opinion on the effect of the
Anti-Deficiency Act during funding gaps, which incorporated OMB policy guidance. In
this opinion, the Attorney General explained how the Anti-Deficiency Act would affect an
agency whose funds expire during a temporary funding lapse (i.e., no prolonged lapse in
agency appropriations is anticipated). The Attorney General opined that if the funding
lapse is anticipated to be temporary, an agency whose appropriations have expired could
incur obligations only for activities related to the safety of human life or the protection of
property. The categories of essential activities contained in the OMB memorandum were
expressly approved by the Attorney General. No approval was given for obligations
involving orderly termination activities during a temporary funding lapse.

4. On 8-16-95, the Assistant Attorney General issued an opinion clarifying the 1981 opinion
on the interpretation of essential activities related to emergencies involving the safety of
human life or the protection of property. ATTACHMENT 2

ESSENTIAL ACTIVITIES

The essential activities listed below are representative examples of activities that may be necessary
for Department of Energy (DOE) to fulfill its responsibilities for the safety of human life and
protection of property under threat of imminent danger during a no-funds and emergency
situation. Clearly, emergencies involving safety or property protection do not include ongoing,
regular Government functions that, if suspended, would not pose an imminent threat of danger.
Accordingly, essential activities should include only those tasks that, if not carried out, would
pose a threat to the safety of human life and protection of property. Consistent with this
perspective, Departmental elements should identify specific essential activities and retain as
emergency personnel only those employees necessary to perform these activities under threat of
imminent danger.

The following list of essential activities may be consulted to determine the list of essential
activities for a DOE element:

a. command and control activities of the Department;

b. safe transportation of personnel or hazardous materials;

c. law enforcement activities concerned with protection and/or surveillance;

d. disaster and emergency services and necessary maintenance operations related to critical
or research activities;

e. health- and safety-related activities;

f. production and distribution of power for essential operations;

g. national security affairs;

h. protection of Federal lands and properties; and

i. administrative services, such as financial and personnel activities necessary to support
emergency personnel engaged in tasks related to the safety of human life or protection of
property.
<>