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.