By Tom Odom, Esq.

            The text that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“BATF”) submitted to the Office of Information and Regulatory Affairs (“OIRA”) is now available for review.  It can be found here:

            At this preliminary stage, public comments have not yet been invited on the substance of the proposal.  The document does raise significant questions as to whether proper procedures have been followed in the preparation of the draft.  Public input on those matters is most pressing.  There will be time later to address the substance of the proposal.

            As I carefully review the proposal, I will spotlight issues that interested parties may care to address and add to the list below, beginning with procedural issues that are ripe for current discussion.  Later today I will post a summary of the substantive provisions and the questions they raise.

            1.         The “ACTION” (page 1) identified is that of “Notice of Proposed Rulemaking” (“NPR”).  It is not clear whether this is an error by ATF or whether the process associated with an Advanced Notice of Proposed Rulemaking (“ANPR”) has silently been ignored.  In light of the fact that ATF designated the initiative as a “significant” rulemaking in the Semi-Annual Regulatory Agenda and within the text of the proposal itself (page 28), I tend to think it is just sloppy work by ATF.  Classification as “significant” is usually synonymous with the added rulemaking procedures specified in the Regulatory Flexibility Act, including the use of an ANPR

            2.         The “DATES” (page 2) heading confirms that ATF anticipates providing a ninety (90) day period for the submission of public comments once the NPR is published in the Federal Register. 

            3.         The “ADDRESSES” (pages 2-3) section contains important information in addition to providing instructions about how to submit public comments once the NPR is published in the Federal Register.  Please note the warning that all comments will be posted “without change” and “including any personal information provided” to a government Webpage open to public viewing.  As a result, you may want to consider how much personally identifying information you include in any comments you submit.

            4.         The “BACKGROUND” (pages 27-28) information asserts that the proposal complies with Executive Orders 12866 and 13563.  It is difficult to imagine how that is true.  Executive Order 12866 asserts a philosophy that agencies should consider market-based alternatives to regulations, that if regulations are required the agency “shall design its regulations in the most cost-effective manner to achieve the regulatory objective,” and that an agency “shall . . . propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.”  In addition, “[e]ach agency shall tailor its regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with obtaining the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations.”  To act according to that stated philosophy, the Executive Order contemplates that the agency, here ATF, would seek wide participation of interested persons early in the process of formulating a draft proposal.  Executive Order 13563 underscores that “[b]efore issuing a [NPR], each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such rulemaking.”

            5.         The “BACKGROUND” (page 28) also asserts that the proposal “will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public safety or health, or state, local, or tribal governments or communities.”  With such an assertion ATF dispensed with much of the regulatory impact analysis.  Small business FFLs may care to differ with the conclusion that no sector or the economy or jobs would be burdened in a material way.  Local law enforcement facing tens of thousands of additional requests for certification each year may also disagree. 

More to come . . . watch for updates throughout the weekend.

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