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[Federal Register Volume 88, Number 190 (Tuesday, October 3, 2023)]
[Notices]
[Page 68157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21143]

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OFFICE OF THE FEDERAL REGISTER

Publication Procedures for Federal Register Documents During a 
Funding Hiatus

AGENCY: Office of the Federal Register.

ACTION: Notice of special procedures.

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SUMMARY: During an appropriations lapse, the Office of the Federal 
Register (OFR) is required 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 and 
documents related to funded programs if delaying publication until the 
end of the appropriations lapse would prevent or significantly damage 
the execution of funded functions at the agency. The OFR is prohibited 
from publishing other agency documents. Since it would be impracticable 
for the OFR to make case-by-case determinations as to whether certain 
documents are directly related to activities that qualify for an 
exemption under the Antideficiency Act, the OFR places responsibility 
on agencies submitting documents to certify that their documents are 
authorized under the Act.

FOR FURTHER INFORMATION CONTACT: Miriam Vincent, Acting Director, Legal 
Affairs and Policy Division, Office of the Federal Register, National 
Archives and Records Administration, (202) 741-6030 or 
[email protected].

SUPPLEMENTARY INFORMATION: Due to the possibility of a lapse in 
appropriations and in accordance with the provisions of the 
Antideficiency Act, as amended by Public Law 101-508, 104 Stat. 1388 
(31 U.S.C. 1341), the OFR announces special procedures for agencies 
transmitting documents for publication in the Federal Register.
    During an appropriations lapse, the OFR is required 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 and documents related to funded programs if 
delaying publication until the end of the appropriations lapse would 
prevent or significantly damage the execution of funded functions at 
the agency. The OFR is prohibited from publishing other agency 
documents. Since it would be impracticable for the OFR to make case-by-
case determinations as to whether certain documents are directly 
related to activities that qualify for an exemption under the 
Antideficiency Act, the OFR places responsibility on agencies 
transmitting documents for publication to certify that their documents 
are authorized under the Act.
    During an appropriations lapse affecting one or more Federal 
agencies, the OFR remains open to accept and process documents 
authorized to be published in the daily Federal Register in the absence 
of continuing appropriations. An agency wishing to transmit a document 
to the OFR during an appropriations lapse must attach an exception 
letter to the document which certifies that publication in the Federal 
Register is necessary for one of the following reasons:

Unfunded Agencies or Programs

     To safeguard human life, protect property, or
     To provide other emergency services consistent with the 
performance of functions and services exempted under the Antideficiency 
Act.

Funded Agencies or Programs

     Because delaying publication until the end of the 
appropriations lapse would prevent or significantly damage the 
execution of funded functions at the agency.
    Under the August 16, 1995 opinion of the Office of Legal Counsel of 
the Department of Justice (OLC), Government Operations in the Event of 
a Lapse in Appropriations, exempt functions and services would include 
activities such as those related to the constitutional duties of the 
President, food and drug inspection, air traffic control, responses to 
natural or manmade disasters, law enforcement and supervision of 
financial markets. Documents related to normal or routine activities of 
Federal agencies, even if funded under prior year appropriations, will 
not be published.
    In another opinion issued on December 13, 1995, Effect of 
Appropriations for Other Agencies and Branches on the Authority to 
Continue Department of Justice Functions During the Lapse in the 
Department's Appropriations, the OLC found that the necessary-
implication exception allowed unfunded agencies to provide support to 
funded agencies or programs under certain conditions. Based on OLC 
interpretation of the December 13, 1995 opinion, as this applies to the 
OFR, if an agency with current appropriations submits a document for 
publication and certifies that delaying publication until the end of 
the appropriations lapse would prevent or significantly damage the 
execution of funded functions at the agency, then publication in the 
Federal Register would be a function or service excepted under the 
Antideficiency Act.
    At the onset of an appropriations lapse, the OFR may suspend the 
regular three-day publication schedule to permit a limited number of 
exempt personnel to process excepted documents. Agency officials will 
be informed as to the schedule for filing and publishing individual 
documents.
    OFR has posted frequently asked questions and excepted letter 
templates on the following website, which will be updated as necessary: 
www.archives.gov/federal-register/agencies/shutdown-faqs.
    Authority: The authority for this action is 44 U.S.C. 1502 and 1 
CFR 2.4 and 5.1.

Oliver A. Potts,
Director of the Federal Register.
[FR Doc. 2023-21143 Filed 9-29-23; 8:45 am]
BILLING CODE 0099-10-P
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