Was Your Voice Heard on ATF 41P?

Have you confirmed that your comment is in the docket?  If not, you may want to act now to ensure it is properly processed.

As readers of this Blog are well aware, on September 9, 2013, ATF published a proposed rule that would restrict the ability to make and transfer firearms regulated under the National Firearms Act.  ATF provided ninety days for the public to file comments on the proposal.  Over 9500 comments were submitted to ATF by mail, fax, or electronic submission via www.regulations.gov.  ATF is required to consider all comments submitted by December 9 and later-filed comments to the extent practicable.

ATF most recently posted a comment to the electronic docket on January 16, 2014, so it would seem that ATF is still actively processing the comments.  As a result, it should be practicable for ATF to review materials submitted now, particularly if the submission is designed simply to ensure that a comment filed on or before December 9 has been added to the docket.

As of the morning of January 23, 2014, ATF has yet to post 1136 of the 9506 comments received.  That is, just shy of 12% of all comments submitted to ATF have not yet been made publicly available.  One might simply attribute the delay in posting the remaining comments to the sort of process witnessed throughout the comment period.  Or, one might think the winter weather has slowed work in Washington, D.C.  But there may be a more troubling explanation.  One group that recently met with ATF to discuss ATF 41P reported that ATF has already determined to “disqualify” comments numbering “around 1,000” due to “vulgarity, anonymity, or non-applicability.”  If the disqualified comments all come from the remaining, unprocessed submissions, it may well be that if ATF has not posted your comment by now that it intends to bury it.

If you submitted a comment that has not yet been posted and you suspect that ATF may have disqualified it due to vulgarity, anonymity, or non-applicability, you may wish to contact ATF now.

Vulgarity.  ATF posted to the electronic docket submissions that contained vulgarities.  Some of the earliest comments posted fit that description.  E.g., Comments 0992, 1254, 1395, 3289, 4129, 5926.  ATF has offered no explanation why a different standard should now apply to other comments it has received.  Moreover, if the actual reason for concern is profanity, redacting the offensive word or words would provide the public greater assurance that comments are not being withheld from examination simply because they persuasively demonstrate flaws in ATF’s proposed rule.

Anonymity.  ATF posted to the electronic docket comments submitted in the name of “Anonymous, Anonymous,” e.g., Comments 1206, 1345, 2343, 2822, 5051, 5560, 5561, 5562, 6196, 6892, 7358, as well as obviously fictitious or incomplete names, e.g., Comments 0018 (“Tony G”), 0040 (“Concerned Citizen”), 0438 (“Adam Anonymous”), 1164 (“Concerned Citizen”), 2617 (“Dw Ar”), 3703 (“Paul Anonymous”), 5907 (“Jimmy Asskicker”).  Having already posted those comments, ATF must explain why it now seeks to exclude other comments that seemingly share the very same characteristic.

Non-Applicability.  It is unclear what comments ATF is refusing to post to the docket because ATF views them as “non-applicable.”  Whatever standard ATF applies, however, it is difficult to reconcile such an approach with comments that ATF has already posted to the electronic docket.  For example, in the context of reasoned decision-making, an unexplained statement of support or opposition for the proposal has limited relevance but ATF posted many such comments.  E.g., Comments 0780, 1054, 1231, 1261, 5298, 5333, 5939, 6759, 7119, 7343, 7492, 8316.  Or, perhaps ATF means to exclude as “non-applicable” comments that simply attacked the Administration, the Attorney General, or ATF itself.  Again, however, ATF already posted comments that fit each of those descriptions.  E.g., Comments 2617, 4912, 5114, 5356.  To the extent ATF deems irrelevant comments that merely objected to the constitutionality of firearms regulation, without explanation, or that disagreed with express statutory language, ATF already posted comments of that variety.  E.g., Comments 0164, 0428, 0616, 5115.

To assure the public and any reviewing court that comments submitted in this proceeding are not being excluded from the docket for an ulterior motive, ATF should post to the docket all comments received.  Of course, ATF need not address insignificant or irrelevant points from the comments when preparing its statement of basis and purpose for any final rule.  But refusing to even docket public submissions raises troubling questions about the transparency of this supposedly-public process, particularly in light of the sort of comments ATF has posted since the start of the comment period.

In short, it is not too late for you to be heard on ATF 41P.  If you cannot find your comment on www.regulations.gov, you may wish to contact ATF to make certain it has not been “disqualified” for an improper reason.

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16 Comments

Filed under ATF, Firearms Law

16 responses to “Was Your Voice Heard on ATF 41P?

  1. Scott B.

    Tom:

    I submitted my comment via fax, as that was the only way to keep my name and address out of the public record. Following directions, I included a cover sheet with my name and address and indicated that my comment was attached (and that the cover sheet was not part of the comment). Can you advise as to the best way to search for my comment? I’ve tried to search for it, but since it wouldn’t be associated with my name, I’m not sure how to search for it.

    Thanks,
    Scott B.

    Like

    • thodom

      If you used any unusual words in the text of your comment, you might try to search for those terms. Otherwise, you may want to contact ATF to confirm your comment has been processed. ATF should have the ability to search by your name even if that information was not publicly posted to the electronic docket.

      Like

  2. Scott B.

    Thanks, Tom. I’ve already tried (unsuccessfully) what you suggested. However, since my last comment to you, I’ve discovered that ATF seems to be listing comments like mine under the first name and last name of “Confidential”, so anyone that mailed or faxed a comment with your name and signature on a cover letter to avoid having your name and address in the public record, search using the word “confidential” or “confidential poster”. There were only four such comments listed, and mine was not among them. I guess I need to contact ATF to find out why it’s missing…

    Like

  3. Scott B.

    Ok, I just got off the phone with Attorney Friend. She disqualified my comment because I didn’t include my mailing address on the cover page. I pointed out to her that the instructions for confidential submissions did not require an address. After reviewing the instructions, she agreed that it was not clear that an address was required. She is going to discuss it with her supervisor and call me back, as I requested that my comment be added to the docket since it met submittal requirements. She indicated that there were 6 confidential comments submitted. Four were added to the docket and two were not due to the missing address (mine was one of them). If any readers out there submitted a confidential comment and can’t find it by searching for the words “Confidential Poster”, contact ATF at (202) 648-7070 to see if it was disqualified for lack of an address on the cover sheet.

    Like

    • thodom

      Scott, thank you for sharing your experience. As should be evident to other individuals who have not seen a submission posted, it is not too late to take corrective action.

      Like

  4. Scott S.

    Scott, like you, I submitted my comments via fax with a cover sheet to have my contact info excluded from the record. However, they published my cover sheet in addition to my comments, so my mailing address is now on display for the world. That’s frustrating at the very least.

    Like

    • thodom

      If anyone submitted a Comment via mail or fax (not via http://www.regulations.gov) following the instructions to request confidential posting and had ATF post personal information, please post that fact here and indicate the comment number. It would seem the procedural irregularities in handling this docket never end.

      Like

      • Scott S.

        My comment number is 5690. Thanks for all the hard work, Tom.

        Like

      • Scott S.

        Oh, and I should mention that last week (Friday the 24th) I called the regulatory affairs office and left a voice message with them asking removal of my personal info from the docket. No traction yet, but I’ll monitor and try again if necessary.

        Like

      • Anon

        Mine and my girlfriend’s coversheets were both posted. I can provide the numbers via e-mail if there is an address to send to.

        Like

  5. thodom

    Over the past couple of days I’ve heard from two more individuals who submitted comments before midnight December 9, 2013, and have yet to see them posted to http://www.regulations.gov. One individual submitted his comment via http://www.regulations.gov and has no idea why it has not yet been posted. The other individual was told his comment was being “disqualified” because he submitted it in the form of a fax that exceeded five pages in length and the cover sheet did not contain his full address and original signature. If you have not yet seen your comment posted, I urge you to immediately contact Brenda Friend at ATF to ascertain the reason and to then resubmit it with any “correction” ATF deems necessary. If you do so, please send me an e-mail to let me know of your experience or post a comment here.

    Like

    • BB

      I had posted my comment on December 8th, but my comment was only posted yesterday, February 6th…2 months later! Another 60 new comments were posted yesterday.

      Like

  6. Indeed, on February 6, for the first time in quite a while ATF posted new comments to the electronic docket. Note that the number of comments “received” did not increase and that it seems the comments posted were received by ATF between December 7 and December 9, 2013. With a couple of exceptions, none of the newly-posted comments even arguably presented any of the bases ATF previously suggested might justify excluding them from consideration. Due to ATF’s lack of transparency in the rulemaking process, it remains unclear whether ATF is now processing the more than 1000 comments yet to be posted or whether the batch posted yesterday constitutes the final additions to the docket. I again urge you, if your comment has not yet been posted to contact ATF to ascertain why that is the case and, if appropriate, resubmit your comment.

    Like

    • thodom

      It would seem ATF believes it has posted all comments that it believes are proper, leaving more than 1000 comments hidden from public view. The author of one of the comments posted on February 6 reports receiving the following explanation from ATF:

      “Thank you for your January 31, 2014 fax regarding your public comment, submitted on December 8, 2013 to http://www.regulations.gov. We re-looked at your comment. The proposed rule specified that a public comment have, among other things, a ‘complete mailing address.’ We inadvertently tagged your comment with a PO Box mailing address as incomplete. We posted your comment yesterday and apologize for the delay.

      Pursuant to your request, we reviewed all un-posted comments. We posted some others that were inadvertently not posted. This should complete the posting of comments that met the criteria outlined in the proposed rule.

      Brenda Friend”

      If ATF did not post your comment, we would like to hear from you as there seems to be no set of criteria consistently applied to determine which comments to post.

      Like

      • My comment hasn’t been posted either – I faxed it on Dec. 9 and it consisted of a single page. I signed it at the bottom and even included my mailing address (I didn’t know I could use a cover sheet and request personal information be confidential). I’ll have to give them a call Monday and find out what happened to it.

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  7. Pingback: ATF-41P Update | Prince Law Offices, P.C.

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