On February 6, 2014, ATF “posted” 61 comments to the electronic docket at www.regulations.gov. These comments are numbered 8373 through 8433. With the exception of one lone comment posted on January 23, these were the first comments posted since January 16 — a period of three weeks. On February 7, 2014, ATF posted one more comment to the electronic docket, numbered 8434. All 62 of these recently posted comments were received by ATF between December 7 and December 9, 2013.
The docket summary at www.regulations.gov continues to show a total of 9507 comments “received” by ATF. At this time, two months after the scheduled December 9 closing of the comment period, 1074 of the comments received by ATF still have not been posted for public viewing.
Unfortunately, this state of affairs does not represent only the slow pace at which ATF has made information available throughout the rulemaking proceeding. It appears that ATF has no plans to post any of the remaining documents, more than 11% of the total submitted.
While ATF may be obligated only to consider and address comments raising “significant” issues, it is another matter entirely to deny public access to comments filed that ATF unilaterally classified as somehow “disqualified” from inclusion in the docket. How can the public (or a reviewing court) have any confidence that ATF did not hide from public view comments raising pertinent objections?
One individual asked ATF’s contact person in this rulemaking, Brenda Friend, why his comment submitted on December 8 was not posted until last week. In pertinent part, the response he received and forwarded to me stated:
“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.”
That final sentence would seem to confirm that ATF plans not simply to disregard but rather “to disappear” a substantial number of comments interested members of the public took the time to compose and submit. If you submitted a comment to ATF that has not yet been posted, I urge you to contact ATF immediately to find the reason for that decision. Once again, it is telling that ATF would provide that information to one individual while declining to respond to other requests for information about the processing of comments.
As I observed in a prior posting to this blog, each of the criteria that ATF now cites as a reason for disqualifying comments have been applied in an arbitrary and inconsistent manner. Comments have been “posted” by ATF that lacked a complete address, that were submitted under fictitious names, that contained vulgarities, that failed to address pertinent issues, that were submitted by facsimile and exceeded five pages in length, and that were submitted by facsimile but lacked a signature. In addition, ATF stated in its notice of proposed rulemaking that it would consider comments received after December 9, 2013, to the extent it was practicable to do so. In light of the fact that ATF posted comments received on or before December 9 as recently as February 7, 2014, one must also marvel at ATF’s apparent decision that it is impracticable to process comments received while it was still reviewing and posting comments. If you submitted a comment after December 9 and it has not been posted, please let me know.
As frustrating as we all find ATF’s heavy-handed management of the docket, please remember the importance of documenting each of ATF’s procedural violations as bases for later invalidating