Financial regulators face delays getting rules published in Federal Register during shutdown

A handful of final rules were announced in recent weeks by federal financial regulators to update thresholds for 2019 mortgage data collection, escrow requirements for high-cost mortgages, consumer loan and lease disclosures, and civil money penalties, and all these final rules have yet to appear in the Federal Register. With the federal government shutdown still in effect, it may be some time before they do.

The federal government shutdown that began in late December doesn’t apply to agencies that are independent and not subject to appropriations, and that means agencies such as the Federal Reserve, Office of the Comptroller of the Currency (OCC), Federal Deposit Insurance Corp. (FDIC), National Credit Union Administration (NCUA), and Consumer Financial Protection Bureau (CFPB), which remain open and full operable. But the Office of Federal Register (OFR), in recent blog posts, explains that routine notices aren’t being published; anything else that is published, it notes, needs to be certified as to need.

Specifically, the OFR says that, under the Antideficiency Act, the OFR is required during a shutdown to publish documents “directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property.” However, it is “impracticable” for the OFR to make such determinations, the notice says, so the OFR makes agencies responsible for certifying that their documents relate to emergency activities authorized under the act.

The OFR said that any agency seeking to have a notice published during an appropriation lapse is required to attach a “special handling letter” certifying that delaying publication until the lapse ends would prevent of significantly damage the execution of funded functions. The OFR added the following (italics added):

UNFUNDED agencies wishing to submit a document to the OFR during an appropriations lapse must attach a special handling letter to the document which states that publication in the Federal Register is necessary to safeguard human life, protect property, or provide other emergency services consistent with the performance of functions and services exempted under the Antideficiency Act. We have created a letter template for agencies to use.

FUNDED agencies wishing to submit a document to the OFR during an appropriations lapse must attach a special handling letter to the document certifying that delaying publication until the end of the appropriations lapse would prevent or significantly damage the execution of funded functions at the agency. We have created a letter template for agencies to use.

Documents related to the agencies’ normal or routine activities, it said, will not be published. Those without special handling letters with appropriate certification also will not be published, it said.

Office of Federal Register Blog reader aids posts

Dec. 10, 2018, Federal Register notice re. publication procedures during ‘funding hiatus’

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