Rule2025-19319
Order of the Commodity Futures Trading Commission Relating to the Continuation, Shutdown, and Resumption of Certain Commission Operations in the Event of a Lapse in Appropriations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 2, 2025
Issuing agencies
Commodity Futures Trading Commission
Abstract
This order is being issued to provide for the continuation, shutdown, and resumption of certain operations of the Commodity Futures Trading Commission (the "Commission") in the event of a lapse in appropriations, and to alert all persons regulated by or engaged in proceedings at the Commission of these provisions.
Full Text
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<title>Federal Register, Volume 90 Issue 189 (Thursday, October 2, 2025)</title>
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[Federal Register Volume 90, Number 189 (Thursday, October 2, 2025)]
[Rules and Regulations]
[Pages 47556-47560]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19319]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Chapter I
Order of the Commodity Futures Trading Commission Relating to the
Continuation, Shutdown, and Resumption of Certain Commission Operations
in the Event of a Lapse in Appropriations
AGENCY: Commodity Futures Trading Commission.
ACTION: Notification of order; final order.
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SUMMARY: This order is being issued to provide for the continuation,
shutdown, and resumption of certain operations of the Commodity Futures
Trading Commission (the ``Commission'') in the event of a lapse in
appropriations, and to alert all persons regulated by or engaged in
proceedings at the Commission of these provisions.
DATES: This notification and order is applicable on September 30, 2025.
FOR FURTHER INFORMATION CONTACT: For market oversight matters contact
Rahul Varma, Acting Director, Division of Market Oversight (DMO), at
202-418-5353 or <a href="/cdn-cgi/l/email-protection#0b797d6a79666a4b686d7f68256c647d"><span class="__cf_email__" data-cfemail="f98b8f988b9498b99a9f8d9ad79e968f">[email protected]</span></a>. For clearing matters, contact Richard
Haynes, Acting Director, Division of Clearing and Risk (DCR), at 202-
418-5063 or <a href="/cdn-cgi/l/email-protection#f1839990889f9482b192978592df969e87"><span class="__cf_email__" data-cfemail="31435950485f544271525745521f565e47">[email protected]</span></a>. For matters involving intermediaries,
contact Thomas Smith, Acting Director, Market Participants Division
(MPD), at 202-418-5495 or <a href="/cdn-cgi/l/email-protection#740007191d001c34171200175a131b02"><span class="__cf_email__" data-cfemail="6216110f0b160a22010416014c050d14">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
As of 12:01 a.m. on October 1, 2025, the funding of many federal
government activities is set to expire. Unless appropriations are
enacted for Fiscal Year 2026, federal departments and agencies whose
continued operations are dependent upon such funding--including the
Commission--will be required to execute contingency plans for this
lapse in appropriations (commonly referred to as a ``shutdown''). Under
31 U.S.C. 1341 (the ``Antideficiency Act''), the Commission is
prohibited from expending or obligating any funds in the absence of
appropriations, subject to a narrow set of exceptions.\1\ The
Commission may use one of the exceptions to the Antideficiency Act set
forth in 31 U.S.C. 1342, which permits agencies to obligate funds
before an appropriations measure has been enacted and to accept
voluntary services during a lapse when certain employees are needed to
perform emergency or ``excepted'' functions.\2\
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\1\ The Antideficiency Act provides that an officer or employee
of the United States may not make or authorize an expenditure or
obligation exceeding an amount in an appropriation or fund for the
expenditure or obligation; involve the government in a contract or
obligation for the payment of money before an appropriation is made
unless authorized by law; make or authorize an expenditure or
obligation of funds required to be sequestered under section 252 of
the Balanced Budget and Emergency Deficit Control Act of 1985; or
involve the government in a contract or obligation for the payment
of money required to be sequestered under section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985.
\2\ Section 1342 of Title 31 of the U.S. code provides that an
officer or employee of the United States Government may not accept
voluntary services for the government or employ personal services
exceeding that authorized by law except for emergencies involving
the safety of human life or the protection of property. As used in
this section, the term ``emergencies involving the safety of human
life or the protection of property'' does not include ongoing,
regular functions of government the suspension of which would not
imminently threaten the safety of human life or the protection of
property.
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The Department of Justice's Office of Legal Counsel has determined
that government work performed so that the commodities and futures
markets can continue to operate and so that trading may continue
qualifies as an ``excepted'' function as set forth in 31 U.S.C.
1342.\3\ Consequently, in the event of a lapse in appropriations, the
Commission may incur obligations to allow certain employees who perform
``excepted'' functions to continue to perform those functions. This
authority, however, does not permit the Commission to fund ongoing,
regular functions, the suspension of which would not imminently
threaten the safety of human life or the protection of property during
a lapse in appropriations.\4\ Thus, the Commission has designated
certain essential personnel to fulfill its obligation to protect
property.
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\3\ 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). Specifically,
the Department of Justice's Office of Legal Counsel has opined that:
``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 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.'' Id.
\4\ Id. at 1 (citing 31 U.S.C. 1342).
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In addition, certain employees of the Commission's Whistleblower
Office (WBO) will continue to work because they have an alternative
funding source.
The Commission's regulations, found in title 17 of the Code of
Federal Regulations, place a number of filing obligations on registered
entities, intermediaries, market participants and the public within
specified time frames, establish Commission authority to stay certain
actions by designated and registered entities, and also include
provisions relating to requests for Commission approval and issuance of
exemption and interpretative relief and guidance with specific time
frames for Commission action. The Commission
[[Page 47557]]
has reviewed its statute and regulations in light of its obligation to
protect the safety of human life or the protection of property to
determine which Commission operations will continue during a lapse in
appropriations.
A. Tolling and Extension of Certain Procedural Time Limits Applicable
to the Commission
In the event of a lapse in appropriations, the Commission will not
be processing or reviewing filings for Commission discretionary or
mandatory approval or any other actions that are not directly related
to the safety of human life or the protection of property. Matters not
directly related to the protection of property include rule, rule
amendment, and contract certifications filed with the Commission, rule
amendments and contracts voluntarily submitted for Commission approval
or review; requests for contract market designation, swap execution
facility, swap data repository, derivatives clearing organization, and
foreign board of trade registration; and other requests for Commission
approval or other action.
The above-mentioned matters do not include any emergency
notifications that may be required by Commission regulations of
designated or registered entities and intermediaries, or that are
required by any rule of a registered entity that has been approved by
or self-certified to the Commission. This includes emergency rules
certified pursuant to regulation 40.6(a)(6) and (7) and emergency
changes certified by a systemically important derivatives clearing
organization pursuant to regulation 40.10(h).
More specifically, matters not directly related to the protection
of property include filings under judicially reinstated 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 the
core principles), part 39 (derivatives clearing organization
applications, Commission review of swaps for determinations on clearing
requirement, requests for orders regarding competition, and
demonstrations of compliance with the core principles), part 40 (rule
and contract filings-certifications and approvals and requests for
confidential treatment of submissions, stays of certifications pursuant
to regulation 40.12, 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 of additional contracts for trading), and
part 49 (swap data repository applications, registration of successor
entities).
Matters not directly related to the protection of property
additionally include requests pursuant to 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 filings (requests for exemptive, no-
action and interpretive letters), and certain matters pursuant to part
165 (payments related to whistleblower awards).
For the foregoing matters that are currently pending before the
Commission pursuant to any of these provisions, all applicable time
deadlines for Commission action will be tolled until the Commission is
able to resume full operations. For such matters, the time remaining
for Commission action will begin to run on the first business day
following the resumption of Commission operations. For the foregoing
matters arising during a lapse in appropriations, any time limit for
Commission action shall begin to run on the first business day
following the resumption of Commission operations.
Matters not directly related to the protection of property also
include certain procedural regulations associated with Commission
adjudicatory actions, in particular certain rules under part 3
(procedure to deny, condition, or suspend, revoke, or place
restrictions on registration), part 9 (related to review of exchange
disciplinary, access denial or other adverse actions), part 10 (the
Commission's rules of practice for adjudicatory proceedings before the
Commission), part 12 (rules related to reparations proceedings), and
part 171 (review of National Futures Association decisions). For these
matters that are currently pending before the Commission pursuant to
any of these provisions, or that arise during a lapse in
appropriations, all applicable time deadlines for Commission action
will be tolled until the Commission is able to resume full operations.
Moreover, all applicable filing deadlines for parties to an
adjudicative proceeding that arise during a lapse in appropriations
will be extended until one business day after the Commission resumes
its operations.
B. Continued Processing, Review, and Action Related to Certain Agency
Regulations
The Commission's regulations also impose filing obligations on
registered entities, intermediaries, market participants and the
public. The Commission has determined that certain filing requirements
relate to the Commission's obligation to protect the safety of human
life or property even during a lapse of appropriations. Accordingly,
the Commission will continue to review, process, and take any necessary
or appropriate action with respect to such filings during a lapse in
appropriations for the purpose of protecting the safety of human life
or the property in accordance with the Commodity Exchange Act (CEA) and
its implementing regulations.
This category includes regulation 1.10, 1.32, 5.12, 22.2, 22.17,
and 30.7 filings (financial reports and financial schedules of futures
commission merchants (FCMs), introducing brokers (IBs), and retail
foreign exchange dealers), regulation 1.12 and 5.6 filings (notice
provisions required of FCMs, IBs, and RFEDs), regulation 1.15 filings
(risk assessment reporting requirements), regulation 1.16 filings
(reports of accountants), regulation 1.17 filings (capital requirements
(business days would include those days the Commission is shut down for
purposes of requirements relating to margin calls and the computation
of margin) and any notice provision requirements),\5\ regulation 1.18
filings (current books and records), regulation 1.65 and 5.23 filings
(notice of bulk transfers (a business day would include those days the
Commission is shutdown)), regulation 39.19 (derivatives clearing
organization reporting requirements), regulation 40.6(a)(6) and (7)
(emergency rule certifications), and regulation 40.10(h) (emergency
changes certified by systemically important derivatives clearing
organizations).
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\5\ Generally, the Commission's regulations define business day
to exclude only Saturday, Sunday, and federal holidays. Thus, a
shutdown would not affect the timely processing, review, and action
that may be necessary and appropriate related to the operation of
these rules.
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This category also includes 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), and part 190 filings (bankruptcy rules). In
addition, the
[[Page 47558]]
Commission shall process, review, and take any necessary or appropriate
action related to, chief compliance officer, swap valuation dispute,
and risk exposure reports, pursuant to regulations 3.3(e), 23.502(c),
and 23.600(c), respectively, from swap dealers, major swap
participants, and futures commission merchants, as applicable.\6\ Swap
execution facilities, designated contract markets, derivatives clearing
organizations, and swap data repositories financial resources reports
required by regulations 37.1306, 38.1101, 39.11, and 49.25,
respectively, also will continue to be processed, reviewed, and subject
to necessary and appropriate action.
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\6\ Futures commission merchants are not required to submit swap
valuation dispute or risk exposure reports to the Commission under
regulations 23.502(c) and 23.600(c), respectively.
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The Commission's regulations require, and industry practice
provides for, notification to the Commission and its staff of certain
emergency situations. Thus, the Commission will continue to process,
review, and take any necessary or appropriate action related to
notifications by registered entities and intermediaries of emergency
situations such as system malfunctions, cyber security incidents, or
financial emergencies throughout a lapse in appropriations.
C. Extension of Open Comment Periods on Proposed Regulation and Other
Matters That May Be Subject to a Request for Comment by the Commission
Finally, the Commission has proposed rules for which the comment
period may expire while the Commission is shutdown. The Commission will
be unable to process comment submissions until it resumes full
operations, as such processing is unrelated to the protection of
property. Therefore, the Commission is extending the comment periods
for any such rules, and for any other matters that may be subject to a
request for comment by the Commission, until one business day after the
Commission is able to resume full operations. Notice of the resumption
of Commission operations at the conclusion of a shutdown will be
provided on the Commission's website.
II. Administrative Compliance
A. Administrative Procedure Act
To the extent that some of the provisions of this order may be
subject to notice and comment under the Administrative Procedure Act
(APA),\7\ and may be subject to the provisions of the APA that require
publication or service of a substantive rule be made not less than 30
days before its effective date,\8\ the Commission for good cause finds
that notice and comment and a delayed effective date are impracticable
and contrary to the public interest. The Commission may be obligated to
commence orderly shutdown of its operations at the commencement of
business on October 1 and has determined that it is in the interest of
the public and the markets it regulates to have established and
publicized its procedures for limiting its operations to only those
that are essential to the protection of property before that time.
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\7\ See 5 U.S.C. 553(b).
\8\ See 5 U.S.C. 553(d).
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Moreover, though the tolling of certain procedural time limits will
delay the Commission's review and approval of certain industry filings,
the review and approval provisions in the Commission's regulations
implement review and approval provisions of the CEA in order to protect
the public interest. It would be contrary to the CEA, and to the public
interest, if these review and approval time limits continued to run
while the Commission is unable to conduct routine business.
Finally, in order to protect the property interests of the public
related to the orderly operation of the futures markets, the Commission
will be supported by essential personnel in the surveillance of the
markets in order to identify any emergency market situations that may
require action to protect the safety of human life or property during a
lapse in appropriations. It therefore is essential that reporting
regulations associated with market surveillance and emergency notices
continue to be processed and reviewed.
B. Paperwork Reduction Act
The Paperwork Reduction Act provides that an agency may not conduct
or sponsor, and a person is not required to respond to, a collection of
information unless it has been approved by the Office of Management and
Budget (OMB) and displays a currently valid control number.\9\ The
collections of information referenced in this notice and order have
valid control numbers that are currently in effect. Therefore, the
Commission is not obligated to seek a control number in connection with
this order.
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\9\ 44 U.S.C. 3501 et seq.
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C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires the Commission to
consider whether a rule it proposes will have a significant economic
impact on a substantial number of small entities and either provide a
regulatory flexibility analysis respecting the significant impact or
certify that the rule will not have such an impact.\10\ The RFA is
applicable only to a rule for which the Commission publishes a general
notice of proposed rulemaking pursuant to 5 U.S.C. 553(b).\11\
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\10\ 5 U.S.C. 601 et seq.
\11\ 5 U.S.C. 601(2).
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The Commission is not publishing this order as a general notice of
proposed rulemaking. Therefore, neither a regulatory flexibility
analysis nor a certification is required for this rulemaking action.
Nonetheless, this order will impose no new regulatory obligations on
any party. Rather, it simply establishes the limited regulatory
framework under which the Commission will operate during a shutdown in
order to ensure the protection of property.
D. Cost Benefit Analysis
Section 15(a) of the CEA \12\ requires the Commission to consider
the costs and benefits of its actions before promulgating a regulation
under the CEA. Section 15(a) specifies that the costs and benefits
shall be considered against five broad areas of market and public
concern: (1) Protection of market participants and the public; (2)
efficiency, competitiveness and financial integrity of futures markets;
(3) price discovery; (4) sound risk management practices; and (5) other
public interest considerations. The Commission may give greater weight
to one or more of the five enumerated considerations to determine, in
its discretion, that a particular rule is necessary or appropriate to
protect the public interest or to effectuate any of the provisions or
accomplish any of the purposes of the CEA.
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\12\ 7 U.S.C. 19(a).
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This order imposes the cost of delay on parties with petitions for
approval, self-certification filings, rights of review, and
adjudicative matters before the Commission. As the Commission would be
limited by law during a lapse in appropriations to function only with
respect to the protection of property, these costs are unavoidable.
In terms of benefits, this order provides for the limited
continuation of Commission business. The order also confirms the
ongoing regulatory obligations of registered entities and
intermediaries notwithstanding a shutdown, in order to ensure that the
Commission has available to it all information necessary to identify
[[Page 47559]]
emergency situations and take action to protect property and, hence, to
protect market participants and the public, the efficiency and
financial integrity of the futures markets, and price discovery.
The order also notifies market participants and the public of the
matters in which the Commission will be engaged, as well as of the
tolling and extensions of time put in place with respect to filings
under Commission regulations. Tolling ensures that the Commission will
have an opportunity to review routine industry filings once a lapse in
appropriations is resolved and take steps if necessary to protect the
interests of the market and the public before those filings are
finalized. The extensions of time ensure that all persons with filing
obligations in certain adjudicative proceedings that arise during a
shutdown or who wish to submit comments during a comment period that
will close during a shutdown will not be prejudiced by the inability of
the Commission to accept those filings or comments.
III. Order
In light of the foregoing, the Commission has determined to issue
the following Order, pursuant to its authority under the provisions of
the Commodity Exchange Act, 7 U.S.C. 1 et seq., and in compliance with
the Anti-Deficiency Act, 31 U.S.C. 1341 and 1342.
It is hereby ordered that, in the event of a lapse in
appropriations (also referred to as ``shutdown'') commencing at 12:01
a.m. on October 1, 2025, the Commission will commence operating
according to the procedures set forth in this Order, with respect to
its regulations found in title 17 of the Code of Federal Regulations:
1. Tolling and Extension of Certain Procedural Time Limits. The
Commission shall not process any filings, or review any matters for
Commission approval or action to the extent that the matters are not
directly related to the protection of property for the duration of a
shutdown. This applies to rule, rule amendment and contract
certifications, except for emergency rules certified pursuant to
regulation 40.6(a)(6) and (7), and emergency changes certified pursuant
to regulation 40.10(h); rules, rule amendments and contracts
voluntarily submitted for Commission approval or review; requests for
contract market designation, and swap execution facility, swap data
repository, derivatives clearing organization, and foreign board of
trade registration; and other requests for Commission approval or other
action.
Specifically, except as otherwise provided in this order,
applications under judicially reinstated sections 1.47 and 1.48,
sections 30.10 and 30.13, and parts 36, 37, 38, 39, 40 41, 48, and 49
of the Commission's regulations officially shall not be processed or
reviewed during a lapse in appropriations, and the time limits for
Commission action shall be tolled until the resumption of Commission
operations at the conclusion of a shutdown. Requests and appeals
submitted under sections 145.7 and 145.9 of the Commission's
regulations, requests submitted under section 140.99, and filings and
payments under part 165 additionally shall not be processed until the
resumption of Commission operations.
The Commission shall process and commence review of any new matters
under these provisions of the Commission's regulations beginning on the
first full business day after the Commission is able to resume full
operations at the conclusion of a shutdown. For matters that are
pending under these provisions at the time a shutdown may commence, all
applicable time deadlines for Commission action shall be tolled. The
time remaining for Commission action will begin to run on the first
full business day after the Commission is able to resume full
operations.
This tolling and extension of time limits also shall apply to
certain procedural regulations associated with Commission adjudicatory
actions, in particular the time-limited procedural regulations in parts
3, 9, 10, 12, and 171. For matters that are currently pending before
the Commission under any of these parts, all applicable time deadlines
for Commission action shall toll, and the time remaining for Commission
action shall begin to run on the first full business day after the
Commission is able to resume full operations. Moreover, all time
deadlines for filings by a party in an adjudicative proceeding that
arise during a shutdown shall be extended until one business day after
the Commission resumes its full operations. When a filing in an
adjudicatory action is delayed by a shutdown, the time to reply to any
delayed filing shall commence on the day the delayed filing is effected
under this order.
2. Procedures and Time Limits Not Extended or Tolled. In order to
fulfill its obligations to protect property during a lapse in
appropriations, which includes market surveillance and intermediary
oversight, the Commission shall continue to process and review filings
required of a registered entity or intermediary under certain
Commission regulations, and take any action necessary and appropriate
to preserve property with respect to these filings. These filings are
contained in sections 1.10, 1.12, 1.15, 1.16, 1.17, 1.18, 1.32, 1.65,
5.6, 5.12, 5.23, 22.2, 22.17, 30.7, 39.19, 40.6(a)(6) and (7), and
40.10(h) of the Commission's regulations, and also apply to any
emergency notification to the Commission that may be required by any
rule of a registered entity that has been approved by or self-certified
to the Commission. In addition, the Commission shall continue to
process and review reports to the extent they are required by
regulations 3.3(e), 23.502(c), and 23.600(c)(2). Filings under parts
15, 16, 17, 18, 19, 21, and 190 of the Commission's regulations also
shall continue to be processed and reviewed.
Review and processing of any notice of emergency actions designated
or registered entities are required to report related to situations
such as system malfunctions, cyber-security incidents, and financial
emergencies shall continue during a shutdown. The Commission
additionally shall receive and process reports related to the financial
resources of a swap execution facility, designated contract market,
derivatives clearing organization, and swap data repository pursuant to
regulations 37.1306, 38.1101, 39.11, and 49.23, respectively.
3. Extension of Open Comment Periods on Proposed Regulation and
Other Matters That May Be Subject to a Request for Comment by the
Commission. Any comment period for a proposed rulemaking or other
matter that may be subject to a request for comment by the Commission
that terminates during a shutdown shall be extended until one business
day after the Commission resumes full operations after a shutdown.
4. Resumption of Commission Operations. The Commission shall
provide notice of the resumption of its operations at the conclusion of
a shutdown on its website at <a href="http://www.cftc.gov">www.cftc.gov</a>.
Issued in Washington, DC, on September 30, 2025, by the
Commission.
Christopher Kirkpatrick,
Secretary of the Commission.
NOTE: The following appendix will not appear in the Code of
Federal Regulations.
[[Page 47560]]
Appendix to Order of the Commodity Futures Trading Commission Relating
to the Continuation, Shutdown, and Resumption of Certain Commission
Operations in the Event of a Lapse in Appropriations--Commission Voting
Summary
On this matter, Acting Chairman Pham voted in the affirmative. No
Commissioner voted in the negative.
[FR Doc. 2025-19319 Filed 10-1-25; 8:45 am]
BILLING CODE 6351-01-P
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