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With only three days left until the end of the federal government’s fiscal year, we appear to be no closer to seeing Congress act on an appropriations bill or an interim funding measure, so that means I am going to keep blogging about government shutdown developments!

Yesterday, Corp Fin issued an announcement titled Division of Corporation Finance Actions in Advance of a Potential Government Shutdown, providing guidance on Corp Fin’s operations during the shutdown and various considerations for filing matters that would inevitably arise in the event of a lapse in appropriations and the resulting furlough of the SEC Staff during the pendency of a shutdown. This guidance may seem very familiar, because it closely tracks the guidance that we have received from the Staff in past government shutdown situations.

My top ten takeaways from the Staff’s guidance include:

1. In the event that a government shutdown occurs, Corp Fin intends to provide as much advance notice as possible of any change of its operating status.

2. EDGAR will continue to accept registration statements, offering statements and any other required filings, regardless of the SEC’s operating status.

3. Once the SEC’s operations cease due to a government shutdown, the Staff will not be able to declare registration statements effective (including post-effective amendments to registration statements) and the Staff will not be able to qualify Form 1-A offering statements.

4. Given the uncertainty as to the timing of when the SEC’s operating status will change, the Staff suggests that an issuer may want to submit a request for acceleration or qualification while the SEC is open and operating, if that issuer has a pending registration statement or Form 1-A offering statement that is substantially complete, and that has met all the statutory requirements to request acceleration of the effective date or qualification.

5. The Staff indicates that, in a situation where the required “no objections” statement from FINRA has not yet been obtained, the Staff will consider granting requests for acceleration or qualification if the underwriters confirm in their request that they will not execute the underwriting agreement or confirm sales of the registered securities until they receive that statement from FINRA.

6. During a government shutdown, the issuer can file a post-effective amendment on EDGAR, but the Staff will not be in a position to declare that post-effective amendment effective. Issuers will have to decide for themselves if they can update a registration statement by prospectus supplement, which requires no action on the part of the Staff.

7. If an issuer does not price an offering within the 15-day time period provided in Rule 430(a), the Staff indicates that the issuer may file post-effective amendments, as necessary, under Rule 462(c) to restart the 15-business-day period so that, at the time of pricing, the issuer will be able to include the pricing information in a Rule 424(b) prospectus supplement.

8. The Staff notes that an issuer can elect to amend to remove a delaying amendment while the SEC is open or while the SEC is shut down; however, the Staff may request that the issuer amend the filing to include the delaying amendment if and when the SEC is operational.

9. An issuer does not need to hear from the Staff regarding a preliminary proxy statement during the ten-day period before the issuer may file definitive proxy materials; however, the Staff notes that it may review the issuer’s preliminary proxy statement when the SEC is operational.

10. During a government shutdown, the Staff will not be able to respond to any written or oral guidance for legal or interpretative questions, including Rule 14a-8 no-action letters. The Staff may consider a request for emergency relief under Rule 3-13 of Regulation S-X.

Perhaps the biggest takeaway here is that if you have a registration statement or a post-effective amendment to a registration statement that you need to get declared effective in the near term, or some other filing or interpretive issue that you need to get resolved, I suggest that you give the Staff a call first thing this morning, because they will no doubt be inundated with requests to resolve pending matters in advance of a potential September 30 shutdown date.

Now, if you want a blast from the past on the topic of government shutdowns, check out this Dave and Marty Radio Show from April 8, 2011. The discussion that I had with Marty way back then tends to prove the point that the more things change, the more they stay the same!

– Dave Lynn