“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 the vast majority of the agency’s operations will cease,” the CFTC said on the eve of the shutdown. “However, consistent with the exception set forth in the Anti-deficiency Act, the CFTC has identified certain employees needed to perform excepted or emergency functions that protect life or property during a lapse in appropriations.”
The CFTC was guided in determining what functions should be excepted from the shutdown by an opinion by the Office of the Legal Counsel of the U.S. Department of Justice, which stated, in part: “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 shutdown 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 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.”
Consistent with the D.O.J. opinion, the CFTC identified employees who were deemed necessary to address an “imminent risk to the safety of human life or the protection of property.”
The CFTC had 680 employees as of Oct. 1. Of these, 28 were identified as excepted from furlough because their work was necessary “to address an imminent risk to the safety of human life or the protection of property.” Additionally, five employees in the Whistleblower and Consumer Protection Offices were excepted because their positions are funded separately from CFTC’s annual appropriation. And the four commissioners were excepted because they are presidential appointees with Senate confirmation, but their staffs were subject to furlough.
“The limited contingent of excepted employees has been identified to ensure, to the extent practicable, that a bare minimum level of oversight and surveillance of the futures markets, clearing operations, and intermediaries is maintained,” the CFTC said. “However, the vast bulk of the CFTC’s oversight and surveillance functions will cease during a lapse of appropriations. In the event that circumstances change such that an imminent risk to the safety of human life or the protection of property emerges, the excepted employees will be responsible for notifying appropriate agency officials, who then will make a determination as to whether additional employees must be recalled from furlough to address the imminent risk.”