Did ATF Provide an Adequate Comment Period in ATF 41P?

When the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) published its notice of proposed rulemaking (“NPR”) with respect to imposing additional filing requirements for the making and transfer of firearms regulated under the National Firearms Act (“NFA”), on September 9, 2013, ATF stated that it would provide a ninety day period for public comment that ended on December 9, 2013.  See 78 Fed. Reg. 55014.  As detailed in the comment filed by the Firearms Industry Consulting Group (“FICG”), a division of Prince Law Offices, P.C., ATF failed to provide an actual ninety day period in which any contact person was available to respond to inquiries or any staff was available to review and post comments (pages 23-25).

The partial government shutdown in October meant that interested persons were denied access to ATF’s reading room, electronic access to any newly-received comments, anyone to reply to correspondence, or even someone who would answer the telephone and reply to an inquiry.  In addition, even after the shutdown ended, ATF closed the reading room for several additional days (pages 22-23) and the electronic portal at www.regulations.gov was malfunctioning for several periods (pages 24-25).  Cumulatively, those problems meant that for all or part of at least twenty-two days the public lacked an effective opportunity to publicly comment on the proposal (pages 24-25).

The December 9 date was not a firm deadline as initially explained by ATF:  “Comments received after that date will be given the same consideration [as comments filed on or before December 9] if it is practical to do so.”  78 Fed. Reg. 55025.  Despite more than 1000 comments received by ATF that have not been posted to the docket, ATF has now stated that it has completed the process of reviewing and posting comments to the docket.  It appears that only one of the 8433 comments posted by ATF has a “received” date subsequent to December 9, 2013, and that was FICG’s errata to its comment — that is, corrections received on December 11 to the comment FICG filed on December 9.  It is difficult to imagine that no one else postmarked a comment on December 10 or 11.  FICG will review the comments ATF “disqualified” to ascertain how many of them have been excluded solely because of a postmark one or two days late.

Together, ATF’s failure to extend the December 9 deadline when more than 20% of the specified ninety-day period was effectively unavailable for interested persons and its failure to accept comments received after December 9 well demonstrate that ATF did not afford the announced period for the submission of public comments.  That failure is not a minor point but rather a significant procedural error that can undermine any rule ATF promulgates as a result of this proceeding.

ATF has not simply failed to adhere to its own statement that it would provide a ninety day period for public comment.  Congress mandated a minimum comment period of ninety days for regulations.  See 18 U.S.C. § 926(b).  ATF acknowledged that requirement applies to regulations it promulgates under the NFA.  See ATF, National Firearms Act Handbook § 1.4.1 (Apr. 2009).