CFTC braces for government shutdown

MEMORANDUM
TO: Office of Management and Budget
FROM: Madge Bolinger Gazzola, Chief Operating Officer

DATE: April 7, 2011

SUBJECT: CFTC Shutdown Plan

Pursuant to Section 124, Agency Operations in the Absence of Appropriations, OMB Circular A-11 (2010), the Commodity Futures Trading Commission 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 expects that the vast bulk of the agency’s operations will cease. However, certain employees have been identified as excepted from the restrictions set forth in the Antideficiency Act. That determination is based, in part, on the acknowledgement that the complete absence of any oversight or surveillance by the CFTC would create an imminent risk to the protection of property, as noted on page 2 of the Department of Justice, Office of Legal Counsel, opinion dated August 16, 1995: “In the absence of government supervision, the stock markets, commodities and futures exchanges would be unable to operate.”

In light of the guidance from the Office of Legal Counsel, as well as other guidance relating to the Antideficiency Act, we have identified employees who are necessary to address an imminent risk to the safety of human life or the protection of property:

  • Assuming the plan is implemented on April 9, 2011, the CFTC has approximately 675 employees on board.
  • Of the 675 employees, 25 have been identified as excepted from the restrictions of the Antideficiency Act, because their work is necessary to address an imminent risk to the safety of human life or the protection of property. This represents 3.7% of the CFTC’s staff. The justification for each employee’s inclusion on the excepted list is set forth in the attached table.
  • The CFTC presently has 2 administrative law judges (ALJs). During a lapse of appropriations, the work of the ALJs is not necessary to address an imminent risk to the safety of human life or the protection of property. Accordingly, under the terms of the Antideficiency Act, the CFTC will take proper steps to furlough the ALJs and their staffs.
  • The 5 Commissioners are PAS appointees (Presidential appointees with Senate confirmation) and are exempt from furlough. Their respective staffs, however, are subject to furlough under the Antideficiency Act.
  • With limited exceptions, all employees who are not identified as excepted would require no more than four hours to conduct an orderly shutdown of agency operations. However, six employees in the Office of Financial Management (OFM) would require no more than two work days to complete orderly shutdown activities. The 6 OFM employees will require additional time to conduct orderly shutdown activities in order to address the substantial number of agency contracts that are in force, so as to reasonably assure that the CFTC is compliant with the Antideficiency Act during a lapse of appropriations. To the extent feasible, OFM is taking steps in advance of a lapse of appropriations to address the agency’s contracts and to communicate with the agency’s contractors.
  • The CFTC has 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.
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