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U.S. COMMODITY FUTURES TRADING COMMISSION

Three Lafayette Centre

1155 21st Street, NW, Washington, DC 20581

Telephone: (202) 418-5160

Facsimile: (202) 418-5541

www.cftc.gov

Division of Administration 

M E M O R A N D U M

TO: Office of Management and Budget

FROM: Jeffrey Sutton

Executive Director 

DATE: November 13, 2023

SUBJECT: CFTC Plan for Lapse in Appropriations

Pursuant to Section 124, Agency Operations in the Absence of Appropriations, OMB Circular A11 (2022), the Commodity Futures Trading Commission (CFTC) is submitting its plan for an 

orderly shutdown in the event of a lapse of appropriations.

In the event that a lapse of appropriations occurs, the CFTC will severely curtail its operations 

until additional appropriations are enacted into law and expects that the vast majority of the 

agency’s operations will cease. However, some operations will continue pursuant to exceptions 

set forth in the Antideficiency Act and elaborated by opinions from the Department of Justice, 

Office of Legal Counsel (OLC), and guidance from the Office of Management and Budget

(OMB). In general, the agency may continue “excepted” functions that meet any of the following 

criteria:

• Those that have a continuing source of funding (such as the CFTC’s Customer Protection 

Fund);

• Those for which a statute or other legal requirement expressly authorizes an agency to 

obligate funds in advance of appropriations; 

• Those that an agency must continue in the absence of appropriations because their 

continuation is “necessarily implied” from the authorized continuation of other activities; 

• Those that are necessary to preserve the safety of life or the protection of property; or

• Those that are necessary for the discharge of the President’s constitutional duties.

Most of the CFTC’s excepted functions are those that are deemed necessary for the protection 

of property, including the markets the CFTC regulates:

In the absence of government supervision, the stock markets, commodities and 

futures exchanges would be unable to operate ... these actions and the others 

required as part of a true shut down of the federal government would impose 

significant health and safety risks on millions of Americans, some of which would 

undoubtedly result in the loss of human life, and they would immediately result in 
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massive dislocations of and losses to the private economy, as well as disruptions 

of many aspects of society and of private activity generally, producing 

incalculable amounts of suffering and loss.

OLC Memorandum for the Director of the Office of Management and Budget, Government 

Operations in the Event of a Lapse in Appropriations, OLC Opinion, at 2-3 (Aug.16, 1995).

Consistent with this, we have identified employees who are necessary to perform these 

excepted functions during a lapse in appropriations:

• Assuming the plan is implemented on or after November 18, 2023, the CFTC has 

approximately 697 employees on board. There are an additional 12 employees in the 

Whistleblower Office (WBO), Office of Public Affairs (OPA) / Office of Customer Education 

and Outreach (OCEO), and Division of Administration (DA) who are funded by resources 

other than annual appropriations.

• Of the 697 employees, 44 have been identified as excepted from the restrictions of the 

Antideficiency Act, because their work conforms to one or more of the excepted functions. 

This represents approximately 6.3% of the CFTC’s staff. The justification for each 

employee's inclusion on the excepted list is set forth in the attached table.

• The 12 employees in the WBO, OPA, and DA who are exempt from furlough because their 

operations are funded through a separate funding source unrelated to the CFTC's annual 

appropriation.

• Commissioners and the Chairman are PAS appointees (Presidential appointees with Senate 

confirmation) and most are exempt from furlough. Their respective staffs, however, are 

subject to furlough under the requirements of the Antideficiency Act.

• There is one Commissioner who would normally be subject to furlough under 5 CFR 359, 

subpart H, as a former career Senior Executive Service (SES) appointee who received a 

Presidential appointment and who elected to retain SES leave benefits under 5 U.S.C. 

3392(c). However, because of their unique role as a Presidentially-appointed Commissioner 

of the CFTC, they will be expected to perform functions necessary to discharge the 

President’s constitutional duties and powers. This includes assisting the President in 

supervising the Executive Branch, Frequently Asked Questions During a Lapse in 

Appropriations, at 2 (OMB Sept. 22, 2023), which means oversight of the CFTC as one of 

the Commission’s five members. The performance of duties beyond the discharge of their 

constitutional duties will involve the safety of human life or the protection of property. 

• With limited exceptions, all employees who are not identified as excepted would require no 

more than four (4) hours to conduct an orderly shutdown of agency operations. 

• Of the 697 CFTC employees noted, there are no employees that are excepted because they 

are engaged in military, law enforcement, or direct provision of health care activities or 

because their compensation is financed by a resource other than annual appropriations.

The limited contingent of excepted employees has been identified to ensure, to the extent 

practicable, the oversight of the derivatives markets and to police those markets to ensure they 

are free of fraud and manipulation. In the event that circumstances change such that an activity 

not initially identified as an excepted function may have become so, the excepted employees 

will be responsible for notifying appropriate agency officials, who then will make a determination 
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as to whether the activity constitutes an excepted function and whether additional employees 

must be recalled from furlough to perform the function.

For your information, we are attaching three documents as appendices to this response:

1. A copy of the CFTC’s Lapse Procedure, dated October 2023.

2. A chart containing a list of the 44 employees who have been determined to be excepted for 

purposes of the Antideficiency Act.

3. A summary of which CFTC functions will continue in the event of a lapse of appropriations, 

and which functions will cease during such a lapse.

Please feel free to contact me at (202) 418-5355 if you have any questions related to this 

matter.
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CFTC Procedure

Date: October 2023

Description: Lapse in Appropriations – this procedure describes the agency’s plan 

for operating in the event of an emergency shutdown due to a lapse in 

appropriations

Contact: Jeffrey Sutton

Lapse Plan Summary Overview

Estimated time (to nearest half day) required to complete shutdown 

activities: 0.5

Total number of agency employees expected to be on board before 

implementation of the plan: 697

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

categories:

Compensation is financed by a resource other than annual 

appropriations: 12 

Necessary to perform activities expressly authorized by law:

Necessary to perform activities necessarily implied by law:

Necessary to the discharge of the President's constitutional duties and 

powers:

1 

Necessary to protect life and property: 43

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

The CFTC will perform work that will enable the commodities, futures and swaps

markets to continue to operate and that will enable trading on those markets to 

continue.

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

The CFTC will cease the vast bulk of its operations, including but not limited to 

most functions of the Divisions of Enforcement, Market Oversight, Clearing and 

Risk and Market Participants. Reports and work related to rulemakings and other 

responsibilities mandated by Dodd-Frank Wall Street Reform and Consumer 

Protection Act will also cease.

Purpose

This procedure outlines the process the Commodity Futures Trading Commission (CFTC) will 

follow to shut down operations in the event of a lapse in appropriations and until additional 

appropriations are enacted into law. Under the Antideficiency Act (31 U.S.C. § 1341 et seq.), 

officers and employees of the federal government cannot, among other things, enter into 
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obligations in advance of appropriations or employ federal personnel except for excepted 

functions, or to accomplish the orderly suspension of agency operations. If no funds are 

available, the agency must initiate the orderly shutdown of agency activities not considered 

excepted functions.

Excepted Employees

• When a shutdown appears imminent, the Human Resources Branch (HR), in consultation 

with the Office of General Counsel (OGC) and the agency offices and divisions, will 

recommend to the Chairman which employees should be excepted from furlough because 

they are needed to perform approved excepted functions.

• Once the Chairman approves the list of excepted employees, HR will notify excepted 

employees of their obligation to report to work in the event of shutdown. The agency offices 

and divisions will notify the excepted employees of the excepted functions they are to 

perform.

• As the shutdown continues, the Division/Office Directors will continually evaluate the list of 

excepted employees to determine whether adjustments need to be made in order to ensure 

that excepted functions can be performed.

• If circumstances shift, Division/Office Directors may request that adjustments be made to the 

excepted list, which may result in the recall of certain employees. Any such request must be 

made to the Executive Director/Chief Administrative Officer, who will consult with the General 

Counsel and Office of the Chairman prior to approval.

Employees Exempt from Furlough During a Lapse in Appropriations

• HR will notify Presidential appointees that they will continue to work but their staff members 

will be subject to furlough unless they are needed to perform excepted functions.

• HR will notify employees of the WBO, and certain employees in OPA and DA that they will 

continue to work because they have an alternative funding source.

Employees Subject to Furlough During a Lapse in Appropriations

• HR will provide supervisors with furlough notices to be sent to all employees (including 

student volunteers, unpaid consultants, and individuals on Intergovernmental Personnel Act 

agreements (as applicable)) other than those described above as not being subject to 

furlough during a lapse in appropriations.

• Within the first four (4) hours after employees report to work1 at his/her regularly scheduled 

tour of duty start time on the first business day following the lapse in appropriations, 

supervisors will send a furlough notice to all employees under their supervision other than 

those described above as not being subject to furlough during a lapse in appropriations.

• Employees (except those already on preapproved leave or an alternative work schedule) 

must report to work on the first business day following the initiation of a shutdown. Within the 

first four (4) hours after employees report to work at his/her regularly scheduled tour of duty 

 1 Where applicable “report to work” includes in the office or telework status.
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start time, employees will receive a furlough notice and must perform the duties necessary 

for the orderly shutdown of Commission operations.

• Supervisors must notify employees that travel is cancelled unless it is part of an excepted 

function. Any employee on travel that is not part of an excepted function must immediately 

return to his/her duty station.

• Employees MAY NOT volunteer to work for the CFTC without pay. This is a violation of 

Antideficiency Act and carries strong personal sanctions against the individual. Pursuant to 

31 U.S.C. § 1350 any officer or employee who “knowingly and willfully violates the 

Antideficiency Act shall be fined not more than $5,000, imprisoned for not more than 2 years, 

or both.” An individual violating the Antideficiency Act may also “be subject to appropriate 

administrative discipline including, when circumstances warrant, suspension from duty 

without pay or removal from office.” 31 U.S.C. § 1349(a).

• In the event of a shutdown, all paid leave must be cancelled. Accordingly, any employee 

who has received preapproval for paid leave during the shutdown period will be furloughed, 

unless such employee is considered “excepted” as outlined above. Any employee who is 

informed that he/she is excepted must report to work.

Contractors

• The Procurement Section will issue “stop work” notices to CFTC contractors for contracts that 

are not necessary to address an imminent risk to the safety of human life or the protection of 

property, unless the contract: (1) is already funded; (2) will not impose any new obligations 

on the government during the lapse in appropriations; and (3) will not require oversight by 

CFTC personnel during the lapse in appropriations.

• To promote compliance with the Antideficiency Act, The Procurement Section may issue 

“termination” notices to CFTC contractors if the lapse in appropriations lasts for thirty days or 

longer.

Notification to OMB

The Executive Director is responsible for notifying OMB immediately when shutdown activities 

are being initiated, in compliance with Section 124 of OMB Circular A-11.

Shutdown Activities for Employees Subject to Furlough During a Lapse in

Appropriations

• Employees who are not excepted must not check email or use voice capabilities or conduct 

any work. Employees who are not excepted will be instructed to power off and securely store 

all CFTC provided equipment prior to the lapse in appropriations, and will be informed that 

they cannot access any such devices while on furlough. This includes, but is not limited to, 

CFTC provided laptops, smartphones, or tablets.

• Employees who are not excepted must set an autoreply for his/her email address and for 

public email addresses. Employees who are not excepted must record out-of-office 

messages on all public phones and on his/her phone.
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• All employees who are not excepted must cancel meetings, hearings, and other previously 

arranged business and notify appropriate parties of the cessation of normal agency business 

due to a lapse in appropriations.

• Employees who are not excepted should document the status of cases and projects so they 

can be resumed, transferred, or otherwise appropriately handled when the funding situation 

is resolved.

• Employees who are not excepted must take appropriate steps to safeguard and secure all 

records and property to ensure protection of any classified or sensitive information.

• Employees who are not excepted must complete shutdown activities within four (4) hours 

after the employee reports to work at his/her regularly scheduled tour of duty start time on the 

first business day following the lapse in appropriations.

Notification to Public and Staff

• The Office of Public Affairs (OPA) will notify the public of closure and reopening of CFTC 

offices through the CFTC Website. The website will remain operational because it has 

already been fully funded prior to the lapse in appropriations. However, the website will 

generally not be updated or maintained during a lapse in appropriations.

• Employees are responsible for monitoring the news for information about the reopening of 

the agency after Congress appropriates funds.

• The Division of Administration will also utilize the “Send Word Now” system to notify 

employees who have signed up, when Congress appropriates funds with instructions for 

reopening the agency.

• Employees are expected to return to work on their next regularly scheduled work day, unless 

on preapproved leave, following enactment of appropriations legislation.
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CFTC Excepted Staff List

Office Position Location Justification

COMM 1 Chief of Staff DC Advise Commissioner on matters that the 

Commission may need to take up during the 

lapse in appropriations. This employee will 

be performing emergency or excepted 

functions, including those that address either 

an imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 

COMM 2 Commissioner 

Mersinger's Staff

DC Advise Commissioner on matters that the 

Commission may need to take up during the 

lapse in appropriations. This employee will 

be performing emergency or excepted 

functions, including those that address either 

an imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 

COMM 3 Commissioner 

Goldsmith-Romero

DC The Commissioner will perform work on 

matters that the Commission may need to 

take up during the lapse in appropriations. 

This employee will be performing emergency 

or excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 
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Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

COMM 4 Commissioner 

GoldsmithRomero's Staff

DC Advise Commissioner on matters that the 

Commission may need to take up during the 

lapse in appropriations. This employee will 

be performing emergency or excepted 

functions, including those that address either 

an imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 

COMM 5 Commissioner 

Johnson's Staff

DC Advise Commissioner on matters that the 

Commission may need to take up during the 

lapse in appropriations. This employee will 

be performing emergency or excepted 

functions, including those that address either 

an imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 

COMM 6 Commissioner 

Pham's Staff

DC Advise Commissioner on matters that the 

Commission may need to take up during the 

lapse in appropriations. This employee will 

be performing emergency or excepted 

functions, including those that address either 

an imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 
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Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 

OLIA1 Director DC This employee will monitor and respond fully 

to all legislative inquiries. This employee will 

also advise whether additional resources are 

necessary to respond to legislative inquiries. 

This employee will be performing emergency 

or excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). To the extent a nomination or 

appointment is pending during a lapse in 

appropriations, this employee (and others, to 

the extent necessary) will perform the 

minimum necessary obligational authority for 

the President to carry out his nomination and 

appointment power. Authority for the 

Continuance of Government Functions 

During a Temporary Lapse in Appropriations, 

5 O.L.C. Op. 1, 5-6 (1981). 

OIA1 Director DC This employee will monitor international 

financial markets, maintain communication 

with other participants in those markets, and 

coordinate CFTC activity with respect to other 

international participants. This employee will 

be performing emergency or excepted 

functions, including those that address either 

an imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 
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(Aug. 16, 1995). This employee will also 

perform the minimum necessary obligational 

authority for the President to carry out his 

foreign affairs power. Authority for the 

Continuance of Government Functions 

During a Temporary Lapse in Appropriations, 

5 O.L.C. Op. 1, 5-6 (1981). 

OPA 1 Director DC This employee will monitor and respond to all 

press inquiries. This employee will be 

performing emergency or excepted functions, 

including those that address either an 

imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 

OCE 1 Acting Chief 

Economist

DC This employee will be performing economic 

analysis. This employee will be performing 

emergency or excepted functions, including 

those that address either an imminent threat 

to human life and/or the protection of property 

as provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 
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OIG 1 Inspector General DC This employee will monitor and respond to 

the hotline for allegations of waste, fraud, and 

abuse. This employee will be performing 

emergency or excepted functions, including 

those that address either an imminent threat 

to human life and/or the protection of property 

as provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

DMO 1 Director DC This employee will oversee all DMO 

activities. This employee will be performing 

emergency or excepted functions, including 

those that address either an imminent threat 

to human life and/or the protection of property 

as provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

DMO 2 Associate Deputy 

Director, Systems 

Risk Section

DC This employee will oversee market system 

safeguards to detect/address major market 

disruption related to enterprise risk 

management, information security, capacity 

planning, systems operations, business 

continuity, disaster recovery, physical 

security and environmental controls. This 

employee will be performing emergency or 

excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 

1342. Specifically, this employee will be 

performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 
Page 13 of 27

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995).

DMO 3 Acting Deputy 

Director, Market 

Intelligence Branch

DC This employee will analyze and communicate 

current and emerging derivatives market 

dynamics, developments, and trends to assist 

the Commission and the public in making 

informed decisions during a lapse in 

appropriations. This employee will be 

performing emergency or excepted functions, 

including those that address either an 

imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

OGC 1 General Counsel DC This employee will provide legal advice and 

support to the excepted activities of 

presidential appointees and excepted staff. 

This employee's presence is incidental but 

necessary to address the scope of allowable 

excepted functions that can be taken by the 

agency during a lapse in appropriations, 

including those excepted functions that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). This employee will also oversee and 

coordinate filings in the agencies appellate 

court matters, which address an imminent 

threat to the protection of property implicated 

in those open and active appellate litigation 

cases. In addition, this employee will 

determine when delaying appellate matters 

would threaten life or property to determine 

when to recommend additional or different 

excepted personnel.
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DOE 1 Director DC This employee will oversee and coordinate 

filings in approximately 100 district court 

matters, which address an imminent threat to 

the protection of property implicated in those 

open and active litigation cases. In addition, 

this employee will determine when delaying 

matters would threaten life or property to 

determine when to recommend additional or 

different excepted personnel. This employee 

will be performing emergency or excepted 

functions, including those that address either 

an imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

DOE 2 Deputy Director, 

Chief Counsel

DC This employee will track electronic filings, 

analyze and respond to all filings made, 

participate in hearings on substantive matters 

that cannot be postponed due to risk to 

property if not pursued timely, and respond to 

emergency actions that arise. This 

employee will be performing emergency or 

excepted functions that address either an 

imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

DOE 3 Deputy Director, 

New York Regional 

Office

NY This employee will track electronic filings, 

analyze and respond to all filings made, 

participate in hearings on substantive matters 

that cannot be postponed due to risk to 

property if not pursued timely, and respond to 

emergency actions that arise. This

employee will be performing emergency or 

excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 31 U.S.C. 

§ 1342 and OLC Memorandum for the 

Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion, at 

2-3 (Aug. 16, 1995). 
Page 15 of 27

DOE 4 Deputy Director, 

Kansas City 

Regional Office

KC This employee will track electronic filings, 

analyze and respond to all filings made, 

participate in hearings on substantive matters 

that cannot be postponed due to risk to 

property if not pursued timely, and respond to 

emergency actions that arise. This 

employee will be performing emergency or 

excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 31 U.S.C. 

§ 1342 and OLC Memorandum for the 

Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion, at 

2-3 (Aug. 16, 1995). 

DOE 5 Deputy Director, 

Chicago Regional 

Office

CH This employee will track electronic filings, 

analyze and respond to all filings made, 

participate in hearings on substantive matters 

that cannot be postponed due to risk to 

property if not pursued timely, and respond to 

emergency actions that arise. This 

employee will be performing emergency or 

excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 31 U.S.C. 

§ 1342 and OLC Memorandum for the 

Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion, at 

2-3 (Aug. 16, 1995). 

DOE 6 Deputy Director DC This employee oversees and coordinates the 

functions of the Division of Enforcement. 

This employee will be performing emergency 

or excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. Specifically, 

this employee will be performing work that 

will enable the commodities and futures 

markets to continue to operate and that will 

enable trading on those markets to continue. 

31 U.S.C. § 1342 and OLC Memorandum for 

the Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion
Page 16 of 27

DOE 7 Deputy Director DC This employee oversees and coordinates the 

functions of the Division of Enforcement. 

This employee will be performing emergency 

or excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. Specifically, 

this employee will be performing work that 

will enable the commodities and futures 

markets to continue to operate and that will 

enable trading on those markets to continue. 

31 U.S.C. § 1342 and OLC Memorandum for 

the Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion

DOE 8 Supervisory 

Surveillance 

Analyst

DC This employee will oversee the overall market 

surveillance program to examine markets for 

misconduct detrimental to the Commission's 

mission of protecting market integrity which is 

essential to the national economy. This 

employee will be performing emergency or 

excepted functions, including those that will 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum of the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995).

DCR 1 Director DC This employee will be responsible for 

overseeing all DCR activities. This employee 

will be performing emergency or excepted 

functions, including those that address either 

an imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 
Page 17 of 27

DCR 2 Deputy Director for 

Risk Surveillance

DC This employee will be responsible for 

overseeing, from a broad perspective, risk 

surveillance activities. This employee will be 

performing emergency or excepted functions, 

including those that address either an 

imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 

DCR 3 Deputy Director for 

Examinations/ 

Associate Director

CH This employee will be responsible for 

overseeing, from a broad perspective, DCR 

surveillance activities and examinations, in 

particular those that have been designated as 

systematically important. She will track 

electronic filings made under 39.11 and 

39.19, analyze and respond to filings made in 

substantive matters. This employee will be 

performing emergency or excepted functions, 

including those that address either an 

imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995).
Page 18 of 27

DCR 4 Supervisory Risk 

Analyst

CH This employee will be responsible for leading 

the data management and futures tool 

maintenance for monitoring risk. This 

employee will be performing emergency or 

excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

DCR 5 Risk Analyst DC This employee will be responsible for 

developing, leading, and maintaining the 

agency's dashboard analytics. This 

employee will be performing emergency or 

excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

DCR 6 Associate Director CH This employee will be responsible for 

overseeing, from a broad perspective, risk 

surveillance activities. This employee will be 

performing emergency or excepted functions, 

including those that address either an 

imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 
Page 19 of 27

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 

MPD 1 Director DC This employee will be responsible for 

overseeing all DSIO activities. This 

employee will be performing emergency or 

excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

MPD 2 Deputy Director, 

Examinations 

Branch

NY This employee will be responsible for 

overseeing all FCM financial integrity and 

reporting activities. This employee will be 

performing emergency or excepted functions, 

including those that address either an 

imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. Specifically, this employee 

will be performing work that will enable the 

commodities and futures markets to continue 

to operate and that will enable trading on 

those markets to continue. 31 U.S.C. § 1342 

and OLC Memorandum for the Director of the 

Office of Management and Budget, 

Government Operations in the Event of a 

Lapse in Appropriations, OLC Opinion, at 2-3 

(Aug. 16, 1995). 

MPD 3 Deputy Director, 

Capital Margin and 

Segregation 

Branch

DC This employee will be responsible for 

overseeing all intermediary capital, margin 

and fund segregation reporting activities, as 

well as FCM financial integrity and reporting 

activities. This employee will be performing 

emergency or excepted functions, including 

those that address either an imminent threat 

to human life and/or the protection of property 

as provided for in 31 U.S.C. § 1342. 

Specifically, this employee will be performing 

work that will enable the commodities and 

futures markets to continue to operate and 

that will enable trading on those markets to 

continue. 31 U.S.C. § 1342 and OLC 
Page 20 of 27

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 

DA 1 Executive Director DC As Chief Executive Officer of the CFTC, this 

employee will be required to execute tasks 

that are necessary and incidental to the 

duties of CFTC employees whose 

responsibilities address emergency or 

excepted functions, including those imminent 

risk to the safety of human life or the 

protection of property. Such issues relate to 

oversight of OED responsibilities, including 

security, payroll, financial, contract, and IT 

functions, and direction of adjustments to 

excepted employee designations as required 

by changes in the circumstances presented 

during a shutdown. The duties likewise will 

include advising and supporting the 

Chairman and Commissioners, as well as 

other excepted employees, on matters arising 

during lapse of appropriations.

DA 2 Chief Information 

Officer

DC This employee will oversee all activities of IT 

to ensure that the excepted employees of the 

Commission have the electronic and 

technological capabilities necessary to 

perform. This employee's presence is 

necessary to provide critical support that is 

incidental to the work conducted by the 

excepted employees. This employee will be 

performing emergency or excepted functions 

that address either an imminent threat to 

human life and/or the protection of property 

as provided for in 31 U.S.C. § 1342. 31 

U.S.C. § 1342 and OLC Memorandum for the 

Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion, at 

2-3 (Aug. 16, 1995).

DA 3 Chief Human 

Capital Officer

DC This employee will provide ongoing support 

to the excepted activities of presidential 

appointees and excepted staff with respect to 

all matters relating to human capital. This 

employee's presence is incidental but 

necessary to address emergency or excepted 

functions, including those that pose an 

imminent threat to the protection of property.
Page 21 of 27

DA 4 Benefits Manager DC This employee will be excepted as needed in 

order to perform tasks relating to payroll, 

benefits, and unemployment claims, which 

are considered excepted activities in 

accordance with OMB's guidance during a 

lapse in appropriations. 

DA 5 Senior 

Procurement 

Officer

DC As the Senior Procurement Officer, this 

employee will provide support and oversee all 

on-going contracts to include contracts that 

that must continue in order to protect human 

life and/or protection of property as required. 

This employee will be performing emergency 

or excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 31 U.S.C. 

§ 1342 and OLC Memorandum for the 

Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion, at 

2-3 (Aug. 16, 1995). 

DA 6 COOP Manager DC This employee will provide physical security 

and oversight of the security of excepted staff 

and presidential appointees. (This employee 

also will accept mail and update hotline to 

notify staff to return to work.) This 

employee's presence is necessary to address 

an imminent threat both to the safety of 

human life (managing the security of those 

employees who are deemed excepted and 

are required to report to work) and to the 

protection of property (managing the security 

of the Headquarters building and the property 

contained therein). This employee will be 

performing emergency or excepted functions, 

including those that address either an 

imminent threat to human life and/or the 

protection of property as provided for in 31 

U.S.C. § 1342. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995). 
Page 22 of 27

DA 7 CISO DC As the Chief Information Security Officer, this 

employee will ensure that the Commission's 

Technology Infrastructure remains protected 

and secure during a lapse in appropriations. 

This employee will be performing emergency 

or excepted functions, including those that 

address either an imminent threat to human 

life and/or the protection of property as 

provided for in 31 U.S.C. § 1342. 31 U.S.C. 

§ 1342 and OLC Memorandum for the 

Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion, at 

2-3 (Aug. 16, 1995). 

DA 8 eSOC Manager DC Leads the eSOC protection, detection, 

monitoring and incident responses 

activities. In a case of a government 

shutdown, ensuring all Security Operations 

Center capabilities are fully operational and 

functional is a priority. OMB requested a 

SOC redness plans from all federal agencies 

and stressed on the importance of having all 

SOC functions operating at the highest alert 

levels. Nick, will lead the SOC efforts in 

maintaining operational redness and incident 

response in case of an active attack on the 

CFTC.

DA 9 Vulnerability 

Manager

DC Leads the vulnerability mitigation, scanning 

and reporting efforts. Responsible for 

working with DHS-CISA and the Continuous 

Diagnostics and Mitigation (CDM) teams in 

response to Emergency Directives and 

Binding Operational Directives related to 

vulnerabilities with known exploits, and Zero 

Day vulnerabilities that requires actions within 

24 hours. Maintaining a good systems cyber 

hygiene is critical in defending against cyberattacks and preventing data exfiltration.
Page 23 of 27

DOD 1 Acting Director DC This employee will provide support to the 

CFTC mission divisions to ensure the 

effective flow of market data into databases 

at the CFTC. This employee’s presence is 

necessary to provide critical support that is 

incidental to the work conducted by the 

excepted employees. This employee will 

also troubleshoot technology-oriented data 

issues that may impact the data loading 

process and ensure that all databases 

containing mission related information are 

functioning for excepted staff. This employee 

will be performing emergency or excepted 

functions that address either an imminent 

threat to human life and/or the protection of 

property as provided for in 31 U.S.C § 

1342. 31 U.S.C. § 1342 and OLC 

Memorandum for the Director of the Office of 

Management and Budget, Government 

Operations in the Event of a Lapse in 

Appropriations, OLC Opinion, at 2-3 (Aug. 16, 

1995)

DOD 2 Data Ingest 

Specialist

DC This employee will provide support to the 

CFTC mission divisions to ensure the 

effective flow of market data into databases 

at the CFTC. This employee’s presence is 

necessary to provide critical support that is 

incidental to the work conducted by the 

excepted employees. This employee will 

also troubleshoot technology-oriented data 

issues that may impact the data loading 

process and ensure that all databases 

containing mission related information are 

functioning for excepted staff. This employee 

will be performing emergency or excepted 

functions that address either an imminent 

threat to human life and/or the protection of 

property as provided for in 31 U.S.C § 1342. 

31 U.S.C. § 1342 and OLC Memorandum for 

the Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion, at 

2-3 (Aug. 16, 1995)
Page 24 of 27

DOD 3 Portal Manager DC This employee will provide support to the 

CFTC mission divisions to ensure the 

effective flow of market data from the CFTC 

Web Portal into the data ingest process at the 

CFTC. This employee’s presence is 

necessary to provide critical support that is 

incidental to the work conducted by the 

excepted employees. This employee will 

also troubleshoot technology-oriented data 

issues that may impact the receipt of mission 

related information into the CFTC and ensure 

this information remains available for 

excepted staff. This employee will be 

performing emergency or excepted functions 

that address either an imminent threat to 

human life and/or the protection of property 

as provided for in 31 U.S.C § 1342. 31 

U.S.C. § 1342 and OLC Memorandum for the 

Director of the Office of Management and 

Budget, Government Operations in the Event 

of a Lapse in Appropriations, OLC Opinion, at 

2-3 (Aug. 16, 1995)

Summary of CFTC Operations in the Event of a Lapse of Appropriations

In the event that a lapse of appropriations occurs, the CFTC will severely curtail its operations 

until additional appropriations are enacted into law.

Operational During a Lapse of Appropriations:

The CFTC will maintain a limited staff of excepted employees: Division of Market Oversight 

(DMO), Division of Clearing and Risk (DCR), Market Participants Division (MPD), and Division 

of Data staff to perform oversight and surveillance of the futures markets, clearinghouses, and 

intermediaries; Enforcement staff to address open and active litigation cases; and certain other 

employees to perform work necessary and incidental to the execution of the aforementioned 

functions. The limited DMO/DCR/MPD/DOD staff identified as excepted will provide oversight of 

the derivatives market and to police those markets to ensure they are free of fraud and 

manipulation. Additionally, the CFTC will maintain limited staff in its Division of Administration, 

Human Resources Branch (HRB), Information and Technology Branch (ITB) and Information 

Security Branch (ISB) to ensure security of information technology systems.

The limited CFTC staff will continue to monitor the following types of filings from registered 

entities to assess whether any additional excepted activity is necessary:

• Regulation 1.10 and 5.12 filings (financial reports of futures commission merchants (FCMs), 

introducing brokers (IBs), and retail foreign exchange dealers (RFEDs)); 

• Regulation 1.12 and 5.6 filings (notice provisions required by FCMs, IBs, and RFEDs);

• Regulation 1.15 filings (risk assessment reporting requirements);
Page 25 of 27

• Regulation 1.16 filings (reports of accountants);

• Regulation 1.17 filings (capital requirements);

• Regulation 1.18 filings (current books and records);

• Regulation 1.65 and 5.23 filings (notice of bulk transfers);

• Regulation 39.19 (derivatives clearing organization reporting requirements);

• Regulation 40.6(a)(6) and (7) (emergency rule certifications);

• Regulation 40.10(h) (emergency changes certified by systemically important derivatives 

clearing organizations);

• Part 15 filings (general reporting requirements);

• Part 16 filings (clearing member reports);

• Part 17 filings (FCM reports);

• Part 18 filings (reports by traders);

• Part 19 filings (bona fide hedge position reports);

• Part 20 filings (large trader reporting for physical commodity swaps);

• Part 21 filings (special call provisions);

• Part 190 filings (bankruptcy rules);

• Chief compliance officer, swap valuation dispute, and risk exposure reports (per regulations 

3.3(e), 23.502(c), and 23.600(c));

• Financial resource reports by swap execution facilities, designated contract markets, 

derivatives clearing organizations, and swap data repositories (per regulations 37.1306, 

38.1101, 39.11, and 49.23); and

• Any emergency notification required to be reported to the Commission (such as system 

malfunctions, cyber security incidents, or financial emergencies).

The CFTC will continue to participate in functions that, if not continued, would prevent or 

significantly damage the execution of other funded government functions. See Effect of 

Appropriations for Other Agencies and Branches on the Authority to Continue Department of 

Justice Functions During the Lapse in the Department’s Appropriations, 19 O.L.C. Op. 337, 338 

(1995). For example, the CFTC will continue to participate in the activities of the Financial 

Stability Oversight Council (FSOC) during a lapse in appropriations. FSOC is funded by fees 

and the Chairman is a voting member. Participating in other similar activities will be evaluated 

during a lapse based upon the appropriations status of other agencies.

Pursuant to 5 U.S.C. § 7511(b)(1), the Presidentially-appointed and Senate-confirmed 

Commissioners are exempt from furlough and will continue to serve during a lapse in 
Page 26 of 27

appropriations. In addition, the WBO and certain staff in OPA and DA will continue to perform 

normal functions during a lapse of appropriations because their functions are not funded by the 

Commission’s annual appropriations.

Non-Operational During a Lapse of Appropriations:

Notwithstanding the limited functions that the excepted employees will perform, the vast bulk of 

the CFTC’s operations will cease during a lapse of appropriations. This includes, but is not 

limited to:

• Most functions of DOE, including but not limited to: the review and investigation of victim 

complaints, initiating actions against wrongdoers and protecting any victim assets that may 

be at risk in such situations.

• Most functions of DMO, DCR, and MPD. In general, DMO, DCR, and MPD will not be 

processing filings that contemplate the possibility of Commission action,2 including requests 

pursuant to:

• Regulations 1.47 and 1.48 (bona fide hedge requests);

• Part 30 (regulation 30.10 petitions for exemption and regulation 30.13 requests 

for certification);

• Part 37 (swap execution facilities applications, demonstrations of compliance 

with core principles);

• Part 38 (designated contract market applications, certifications of continued 

compliance in situations of merger or sale, and demonstrations of compliance 

with core principles);

• Part 39 (derivatives clearing organization applications, Commission review of 

swaps for determinations on clearing requirement, requests for orders regarding 

competition, and demonstration of compliance with core principles);

• Part 40 (rule and contract filings (both for self-certification and Commission 

approval), requests for confidential treatment of submissions, stays of 

certifications pursuant to regulation 40.12, and determinations related to making

swaps available to trade);

• Part 41 (filing of notice-designated contract markets trading security futures 

products);

• Part 48 (foreign board of trade registrations, adjudication additional contracts for 

trading);

• Part 49 (swap data repository applications, registration of successor entities);

 

2 Furthermore, as a general matter all applicable deadlines for potential Commission action are tolled 

unless otherwise determined by LD.
Page 27 of 27

• Regulations 145.7 and 145.9 (requests for Commission records, petitions for 

confidential treatment of information submitted to the Commission, and appeals 

of FOIA decisions);

• Regulation 140.99 (requests for exemptive, no-action, and interpretive letters).

DMO, DCR, and MPD will also not be producing the reports they produce during normal 

operations, such as the Commitments of Traders Report, weekly swaps report, and Cotton 

On-Call Report. See https://www.cftc.gov/MarketReports/index.htm. In other words, with 

the exception of the minimal level of excepted employees needed for the oversight and 

surveillance of the derivatives markets, the operations of DMO, DCR, and MPD will cease. 

• Work relating to rulemakings and some other responsibilities mandated by the Dodd-Frank 

Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203. Comment 

deadlines that expire during the lapse in appropriations will be deemed to be extended until 

the first business day after the restoration of appropriations unless the Commission 

indicates otherwise.

• Most functions of the Office of the Chief Economist, Office of Legislative and 

Intergovernmental Affairs, Office of Public Affairs, Office of Minority and Women Inclusion, 

and Office of International Affairs except those identified as excepted to be performed by the 

respective Office Director during the lapse in appropriations.

• Most functions of the Division of Administration and Office of General Counsel, except to the 

limited extent that work is incidental to the excepted functions performed by other excepted 

employees. Meetings of the CFTC’s various Federal Advisory Committees.