ATF to “Disqualify” More than 1000 Comments Filed in ATF 41P

            On February 6, 2014, ATF “posted” 61 comments to the electronic docket at  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 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  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

15 thoughts on “ATF to “Disqualify” More than 1000 Comments Filed in ATF 41P

  1. My request to review the unposted comments in ATF’s reading room has gone unanswered. It is one thing not to post a comment online, but one wonders how a federal agency justifies denying access to the actual paper records. I also filed a request for the unposted comments under the Freedom of Information Act. No response has yet been received.

    Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., will continue to press for access to the “excluded” comments so as to document ATF’s arbitrary handling of submissions to the docket.


  2. I posted two comments prior to the 12/9 cutoff. However, they did not appear till 12/12 and 1/7.

    Comment on FR Doc # 2013-21661

    Comment on FR Doc # 2013-21661


  3. Pingback: Anonymous
  4. While searching to see if my comments were posted, it was interesting to see a lack of submissions from owners and executives from SBR and silencer manufacturers. Some people care about this stuff though.


  5. just checked, my comment was posted 12/20 which is interesting as I figured it was going to get tossed for pointing out the NICS should be more that capable of determining a persons eligibility to purchase a firearm.

    comment was 1jx-895a-ldxr 1jx-895a-ldxr which was about the only way to find it tried to search my by name and by text of comment -zero success . That search function is useless.



  6. Of the two comments I submitted I noticed my second one wasn’t posted to the docket until January 3rd (it was submitted in early December… before the comment period ended). It’s frustrating to see such a long delay which underscores your point that it hindered the public’s ability to comment on the proposed rule given that so many other comments were not yet available for review.


  7. I just received further confirmation of ATF’s intention in the form of a response to my pending request to examine all the comments in ATF’s reading room. The message I received states: “As of Friday, February 7th, all of the comments that met the criteria outlined in the NRPM have been posted online, and represents the all of the comments that will be available, either online or in hard copy in the ATF Reading Room. Paper copies of all comments are still being printed and will be available for review upon request in the Reading Room by February 17th.”


  8. Without reading every posted comment, to the best of my knowledge, I cannot see my comment posted.
    ATF provided a manner for posting a comment without making your name visible to the general public, yet there are very few comments that come up when you search for the key word anonymous, or confidential.
    I suspect many submitted comments thinking they were in a permitted format to the website, and subsequently disallowed.


  9. My comments, which I would be pleased to provide to you and which were written by a person experienced with the federal rulemaking process on the rulemaker’s side of the table, are not posted in the docket. My comments, submitted on December 9, 2013, showed my PO Box as my mailing address. BATFE permits use of PO Boxes as mailing addressed for federal firearms licenses (I have a 01 FFL). There is nothing in ruleamking that stated PO Boxes were unacceptable mailing addresses, and so far as I know, nether Administrative Procedures Act nor its implementing regulations prevent use of a PO Box as a mailing address.

    Please contact me as I am more than willing to take them to task for this nonsense.


  10. Updated to add:

    I certainly hope BATFE is not rejecting comments based on the PO Box as the mailing address.

    There is nothing in the Administrative Procedures Act (APA) (5 U.S.C. Subchapter II), the associated implementing regulations, or the proposed rule itself that prohibited submission of comments referencing a P.O. Box as the commenter’s mailing address. In fact, all the Public Participation section of the rulemaking said was that “All comments must reference the docket number (ATF 41P), be legible, and include the commenter’s name and complete mailing address.”

    My comments met all four elements.

    As for excluding mailing addresses using P.O. Boxes, as of the most recent listing of federal firearms licensees (see over 8,300 federal firearms licensees have a P.O. Box listed as their official mailing address. Since the Bureau issues federal firearms licenses showing on the issued license mailing addresses using a P.O. Box, the Bureau already acknowledges such addresses are valid for the Bureau’s purposes and are complete if correctly listing the box holder’s name, the box number, the Post Office, and the zip code.

    I am writing the BATFE rulemakiing POC, so we will see what she says.


    1. Just a warning about that ffl excel sheet. I downloaded it about a month ago and even though it’s supposedly all FFLs I noticed that the file I downloaded was missing at least one entire state (WA). It may be missing others or that may have been fixed since the day I downloaded it but it’s worth checking.


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