US Government Shutdown Resources

The US federal government entered a shutdown at 12:01 a.m. E.T. on November 17, 2023. Below, we share resources outlining government agencies’ contingency plans for operations, including anticipated staffing and case management, as well as Latham contacts equipped to answer legal inquiries regarding the shutdown.

Commodity Futures Trading Commission

• A government shutdown will severely restrict Commodity Futures Trading Commission (CFTC) operations until additional appropriations are enacted into law.
• Limited staff and curtailed functioning will remain in the following divisions and offices:
  • 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.
  • Certain other employees to perform work necessary and incidental to the execution of the aforementioned functions.
  • Division of Administration, Information and Technology Branch and Information Security Branch to ensure security of information technology systems.
  • The Commissioners (presidential appointees with Senate confirmation) are exempt from furlough. Their respective staffs, however, are subject to furlough.
  • An additional 13 employees in the Whistleblower Office and MPD/Office of Customer Education and Outreach are funded by resources other than annual appropriations and are therefore exempt from furlough.
• All required CFTC registrant filings, such as CCO, valuation, risk, and financial resource reports, will continue to be monitored and assessed to determine if immediate action is necessary.
• DMO, DCR, and MPD will not process filings that contemplate Commission actions, including: bona fide hedging requests, self-certification, registrant applications, confidential treatment requests, “made available to trade” determinations, and no-action requests.

The Federal Reserve Board, Federal Deposit Insurance Corporation, Consumer Financial Protection Bureau, and Office of the Comptroller of the Currency will continue operations as normal because they are not funded by congressional appropriations.

Key contacts: Arthur Long (Fed), Yvette D. Valdez, Douglas K. Yatter

Committee on Foreign Investment in the United States

• Under the Committee on Foreign Investment in the United States (CFIUS) regulations, the time limits and deadlines on CFIUS for case reviews are tolled during a lapse in fiscal appropriations (see 31 C.F.R. 800.604). Therefore, once the government reopens, active cases will resume on the day of review.
• Deadlines for transaction parties — for example, under national security agreements and other mitigation measures or interim orders — are not tolled under the CFIUS regulations. Standard language in the general provisions of mitigation agreements toll the time periods applicable to the CFIUS monitoring agencies (e.g., for non-objection, consent) but not the deadlines and obligations applicable to the transaction parties.
• We expect that CFIUS staff will generally not be available during the government shutdown. Some staff may be working (e.g., contractors and those designated “essential” or under no-year funds), but we do not expect responses to most routine communications or acceptance of new cases. Necessary communications should be sent to CFIUS@treasury.gov.

Key contacts: Les P. Carnegie, Damara L. Chambers, Eric S. Volkman, Catherine Hein

Department of Energy

• Upon a government shutdown, the Department of Energy (DOE) first will utilize available carryover funds from the prior fiscal year to forestall interruptions in its activities. After exhausting its prior-year balances, if DOE has a lapse in appropriations, DOE will implement an orderly shutdown of non-excepted activities.
  • Excepted activities are limited to functions related to the safety of human life or the protection of property.
  • The National Nuclear Security Administration will perform functions related to the safety of human life and the protection of property involving the maintenance and safeguarding of nuclear weapons, international non-proliferation activities, and servicing deployed naval reactors.
  • Employees performing work funded by multiyear appropriations will remain working after available balances from DOE’s base appropriations are exhausted, including to the extent they are funded through the Infrastructure Investment and Jobs Act and the Inflation Reduction Act.
• DOE’s plan does not apply to FERC, which is an independent agency that sits within DOE.
• DOE’s plan does not apply to the Bonneville Power Administration, which is self-funding. The Southeastern Power Administration, the Southwestern Power Administration, and the Western Area Power Administration will perform functions related to the safety of human life and the protection of property by engaging in controlling and directing power to utilities, transmission of power, and repair of the power transmission system.

Key contacts: Tyler Brown, Natasha Gianvecchio, J. Patrick Nevins

Department of Health and Human Services

FY 2024 HHS Contingency Staffing Plan

Key Contacts: John R. Manthei, Elizabeth M. Richards

Department of the Interior

Operations in the Absence of Appropriations

In September 2023 the Department of the Interior created separate government shutdown contingency plans for each of 16 different offices and bureaus. These plans may be updated in advance of a November shutdown.

Key contacts: James R. Barrett, Julia A. Hatcher, Devin M. O’Connor, Janice M. Schneider, Stacey L. VanBelleghem

Department of Justice

US Department of Justice FY 2024 Contingency Plan

Key Contacts:

Department of Labor

US Department of Labor Contingency Plan

• Upon a government shutdown, the Department of Labor (DOL) will furlough nearly 75% of its employees.
• DOL’s primary focus will be worker-protection activities, such as monitoring and responding to imminent threats to human life, child labor investigations, and processing disaster-related Dislocated Worker Grant applications. All worker-protection agency investigations will cease unless they involve responding to or preventing fatalities, catastrophes, or imminent danger.
• The following DOL agencies are expected to fully cease operations (retaining zero employees or only one exempt presidential appointment): the Administrative Review Board, Benefits Review Board, Bureau of Labor Statistics, Employees’ Compensation Appeals Board, Office of Administrative Law Judges, Office of Disability Employment Policy, Office of Federal Contract Compliance Programs, Office of the Assistant Secretary for Policy, Office of Labor-Management Standards, Veterans’ Employment and Training Service, and Women’s Bureau.
• A few DOL agencies will retain a relatively significant percentage of their workforce, such as the Mine Safety and Health Administration (49%), Occupational Safety and Health Administration (56%), Office of Inspector General (OIG) (58%), and Office of Workers’ Compensation Programs (89%).
• The remaining DOL agencies (including the Wage and Hour Division) will maintain at least a skeletal staff.
• Additional information may become available from OIG (available here).

Key contacts: Nineveh Alkhas

Environmental Protection Agency

EPA Contingency Plan

The Environmental Protection Agency’s (EPA’s) September 29, 2023, Contingency Plan for Shutdown provides:

• Close to 90% of EPA staff will be furloughed.
• Law enforcement and criminal investigations will continue.
• Superfund response activities will continue if failure to do so would present imminent threat to human life.
• Exempted activities funded by unexpired appropriations from the Infrastructure Investment and Jobs Act (IIJA) and the Inflation Reduction Act (IRA) will continue, as well as activities excepted as necessary to avoid the prevention or significant deterioration of those IIJA- and IRA-funded functions.
• EPA will suspend all issuance of permits, guidance, regulations, and policies unless necessary for exempted or excepted activities.

Key contacts: James R. Barrett, Julia A. Hatcher, Devin M. O’Connor, Janice M. Schneider, Stacey L. VanBelleghem

Federal Communications Commission

FCC Plan for Orderly Shutdown

• The Federal Communications Commission (FCC) typically has budgetary authority to remain open for a short period after a government shutdown. In the event the FCC shuts down after a lapse of funding, most operations will be suspended. The FCC will announce just before a closure which agency functions will remain available. In past shutdowns:

Key contacts: James H. Barker, Matthew A. Brill, Elizabeth R. Park

Federal Energy Regulatory Commission

Plan for Operating in the Event of a Lapse in Appropriations

• Upon a government shutdown, the Federal Energy Regulatory Commission (FERC) first will utilize available carryover funds from the prior fiscal year to forestall interruptions in its activities. After exhausting its prior-year balances, if FERC has a lapse in appropriations, FERC will implement an orderly shutdown of non-excepted activities.
  • Excepted activities are limited to inspection of licensed hydroelectric projects and approved LNG projects; continued monitoring of the reliability of the bulk power system and threats to energy infrastructure; monitoring energy markets for any urgent matters to protect property from market manipulation or other violations of FERC rules; and legal advice to the Chair, Commissioners, and excepted personnel regarding excepted functions and security of physical and IT assets.
• For FY 2024, retained employees and contractors will equal 4.9% of total employees and contractors.
• FERC will stop accepting filings from the public and will postpone all deadlines and due dates for all pending matters not related to excepted activities.

Key contacts: Tyler Brown, Natasha Gianvecchio, J. Patrick Nevins

Federal Trade Commission

FTC Shutdown Plan

Filings under Hart-Scott-Rodino Antitrust Improvements Act (HSR)

• According to guidance updated in July 2023, the Federal Trade Commission’s (FTC’s) Premerger Notification Office (PNO) and the Department of Justice, Antitrust Division (DOJ) will continue to accept and process HSR filings in the event of a government shutdown.
• Staff at PNO and DOJ will not be available, however, to answer questions or address requests regarding interpretations or filing procedures.
• The 30-day statutory waiting period in which the FTC or DOJ may challenge a transaction will not be impacted. Parties to a reportable deal under HSR may proceed to closing once the waiting period has expired.
• We expect that antitrust agency staff will continue to review premerger filings and conduct investigations as necessary during the pendency of a shutdown, albeit on a less frequent basis. The agencies will continue to issue Second Requests as well.

Key contacts: Amanda P. Reeves, Patrick C. English, Peter M. Todaro

Food and Drug Administration

FDA Contingency Staffing Plan

Key contacts: John R. Manthei, Elizabeth M. Richards

Internal Revenue Service

IRS Lapsed Appropriations Contingency Plan

Key contacts: Andrew Strelka

Securities and Exchange Commission

SEC Operations Plan Under a Lapse in Appropriations and Government Shutdown

• The Securities and Exchange Commission (SEC) will operate at a reduced capacity during a government shutdown. Only essential staff will be on hand to perform functions that are necessary to protect human life or property, or to prevent the loss of government assets. This includes:
• Monitoring the markets for fraud and other illegal activity.
• Responding to emergencies involving market integrity or investor protection.
• Investigating and prosecuting ongoing enforcement cases.
• Maintaining critical systems and infrastructure.
• All other SEC operations will be suspended during a shutdown, including:
• Processing new filings from companies and other market participants.
• Reviewing and approving registration statements and other filings.
• Conducting inspections and examinations.
• Providing assistance to investors, advisers, and other members of the public.

Key contacts: Michele M. Anderson, William R. Baker III, Alexander F. Cohen, Paul M. Dudek, Marlon Q. Paz, Joel H. Trotter