By Tom Odom, Esq.
Rulemaking under the Administrative Procedure Act (“APA”) does not present a simple binary choice between accepting an agency’s proposed regulation or rejecting the proposal and leaving the law unchanged. There are a range of options available. In preparing comments in response to the Notice of Proposed Rulemaking (“NPR”) published by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) it is important to consider all the options.
ATF is required to consider all the significant alternatives and explain why is selects one rather than another. For example, prior to publication of the NPR, ATF repeatedly published abstracts of the proposal it was considering internally that would have imposed many of the same provisions of the NPR with respect to legal entities but which would have eliminated the requirement that individuals obtain certification from a chief law enforcement officer (“CLEO”). ATF abandoned that option when it published the NPR proposing not only to retain the CLEO certification requirement for individuals but to extend that requirement to responsible persons associated with legal entities. ATF did not address in the NPR the relative costs and benefits of the two options. It should have.
Keeping quiet about yet other options in comments submitted does not preclude ATF from adopting some other option that is a “logical outgrowth” of its proposal. As there is no separate rebuttal period and ATF is not required to publish a revised proposal and permit a new comment period if it does switch to another option that is a logical outgrowth, it is to your benefit to consider what other options may exist and address them now.
If there are other alternatives you think are flawed, it is better to raise the alternative and explain why it is flawed than to ignore the matter hoping no one else thinks of it. If there are other alternatives you think are superior to ATF’s proposal, it is better to offer them now. I am not encouraging one segment of the National Firearms Act (“NFA”) community throwing another segment of the NFA community under the bus. I am encouraging all interested persons submitting comments to realize ATF has an obligation to consider all significant alternatives and to not hold back in anticipation of the opportunity to address other alternatives at some future date.
One way to spot alternatives that are being brought to ATF’s attention is to read the comments that other persons file with ATF. If they float a third or fourth approach to an issue, you can address the merit of the suggestion by filing your own comment. If you have not yet visited the electronic portal to view the docket, you can do so at http://www.regulations.gov/#!docketDetail;D=ATF-2013-0001. Unfortunately, as of this time, although the site reflects that 141 comments have been “received” by ATF as of midnight last night, not a single one has been “posted” so as to permit you to view it. This matter concerns us greatly and earlier this week Firearms Industry Consulting Group (“FICG”) requested that ATF promptly post all comments. We are still waiting for a reply.
If you already filed comments but still cannot see them on the site, perhaps you would care to ask ATF to post them. If you would like to see what comments others have filed as you prepare your own, perhaps you would care to ask ATF to post them. Brenda Friend’s telephone number at ATF is 202-648-8408. Of course, you could send her a letter asking her to post the comments but, as things stand, you would have no way to see whether it was placed in the docket. At least there has been a small improvement over earlier this week when extraneous, unrelated matter was posted to the docket generating a statement “Comment Period Closed”. At FICG’s request, at least that potentially confusing situation was resolved. The comment period is open.