For persons interested in the initiative to revise regulations so as to make it more difficult to obtain approval to make or transfer firearms regulated under the National Firearms Act (“NFA”), the breaking news is that the Office of the Federal Register has announced that the proposed rule from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has been received and will be officially published in the Federal Register on Monday, September 9, 2013. As readers of this blog know, that publication is the first formal step in the federal rulemaking process. I previously described that process step-by-step. The key points for now are (1) that publication begins the calendar running on the ninety (90) day period within which interested persons may file public comments and (2) we have more confidence just what ATF will propose on Monday. Just a few days ago I reviewed the appropriate steps interested persons should take upon publication. Remember the first point: Take time to understand the proposal and gather your thoughts.
The “pre-publication draft” of the ATF proposed rule may be viewed here. At first blush, it appears substantially similar to the draft made available last week. There are numerous posts on this site evaluating the August 29 draft with respect to the substance of changes it would bring if ever finalized into a rule, apparent flaws in ATF’s reasoning and justification for the changes, and the seeming disregard ATF has shown for the procedural requirements designed to ensure that proposals undergo a thorough evaluation before publication in the Federal Register.
Earlier this week the Firearms Industry Consulting Group (“FICG”) requested that ATF make public the documents and studies referenced in the draft proposal upon which ATF seems to rely. ATF has declined to do so. FICG requested that ATF revise the draft before publication in the Federal Register so as to inform the public as to how any new rule would be implemented, a matter on which ATF privately provided oral guidance to at least one attorney. ATF declined to make any such revision or to confirm in writing that any new regulation would not be applied to “responsible persons” already in place with respect to trusts and other legal entities previously established for firearms as to which ATF had previously approved a making or transfer application. All prior indications were that ATF would apply any new rule only to newly filed applications to make or transfer NFA firearms but, again, it is concerning that ATF refuses to include that clarification in the actual proposal. ATF had also indicated that any new rule would not be applied to applications that were pending review at the time the new rule became effective. But, again, ATF has now refused FICG’s request to include such a statement in the official Notice of Proposed Rulemaking. Congress established the Federal Register and enacted the Administrative Procedure Act to ensure all members of the interested public would have access to the same information regarding an agency’s rules and a fair opportunity to be heard in the formulation of those rules. Unfortunately, ATF seems to prefer to operate as though the era of “secret law” still prevailed.