Early Tuesday, the Department of Justice's Office of Public Affairs issued a press release stating that ATF “has begun the process of promulgating a federal regulation interpreting the definition of ‘machinegun' under federal law to clarify whether certain bump stock devices fall within that definition.”

ATF began this process by submitting an Advanced Notice of Proposed Rulemaking (ANPRM) to the Office of Management and Budget (OMB). ANPRMs are published in the Federal Register. The Federal Register is the official journal of the United States government which is published daily and contains agency rules, proposed rules, and public notices. As of the writing of this article, the ANPRM has not been published in the Federal Register.

Given that the ANPRM has not yet been published, it won't be possible to discuss the specifics of what ATF is seeking feedback on. However, a quick primer on the Federal Rulemaking process is necessary so that when the ANPRM is published the appropriate action can be taken.

The Advanced Notice of Proposed Rulemaking

In certain instances, one of the initial steps in creating a federal regulation is the issuance of an Advanced Notice of Proposed Rulemaking (ANPRM). ANPRM's generally give some background on the issue the agency is considering taking action on, describes the action the agency is considering taking, and poses specific questions to the public for feedback. Simply put, the agency issuing the ANPRM does not have a proposed rule and is simply soliciting feedback from the public in order to shape a potential proposed rule.

A quick example may be useful. In May of 2016, ATF issued an ANPRM (ATF 29P) soliciting feedback on the identification markings placed on silencers. The ANPRM gave some background information on the required marking of silencers, the petition that lead to the ANRPM and a few specific questions it sought input on. There were 29 comments submitted to ATF in relation to the ANPRM submitted by individuals, associations, and companies. ATF has not yet taken any further action in relation to this ANPRM, so it is unknown whether the Agency will move forward with a proposed rule to govern the marking of silencers.

After an agency issues an ANPRM, there is a limited time period to provide feedback to the agency. Typically the comment period is 60 days. It's worth of noting that the Administrative Procedure Act (which governs Federal Rulemaking) does not mention ANPRMs as an official part of the rulemaking process. At this point, the agency then develops a proposed rule and submits it to the OMB for review.

OMB Review

Prior to the publication of a Notice of Proposed Rule Making (NPRM), the OMB's Office of Information and Regulatory Affairs (OIRA) reviews a proposed rule if it is “significant” and would pose an economic effect or raise an important policy issue. Not all proposed rules are subject to review as independent agencies, like the FCC, are exempt from OIRA's review. However, as ATF is part of the DOJ, which is an executive agency, proposed rules are subject to review by OIRA.

OIRA's review is to determine if the proposed rule is in compliance with several executive orders that is beyond the scope of this article's purpose.

The Notice of Proposed Rulemaking

After OIRA's review, if an agency is given the go ahead, the NPRM is published in the Federal Register. If an agency elected to use an ANPRM, it would have helped them formulate the proposed rule. Alternatively, agencies may have simply elected to proceed with an NPRM and skip the ANPRM all together. This was the case with ATF 41P (the proposed rule which gave us “Responsible Persons” for legal entities obtaining NFA firearms) which later became ATF 41F (the final rule).

After an NPRM is published in the Federal Register, another comment period is opened up. This comment period is more significant, in that the comments received may help change the form the final rule. An agency must review relevant comments prior to the publication of a final rule. Turning back to our example, the final rule (ATF 41F) reflects where ATF responded to the comments submitted in relation to the proposed rule (ATF 41P).

The Comment Period

This is the part of the process that the general public can participate in. Comments for an ANPRM or NPRM can be submitted on regulations.gov, by mail, or in person at certain locations. Most people opt to do it via regulations.gov for obvious reasons.

There are a couple of things to keep in mind. The comment period closes at 11:59 PM on the date comments are due. And that's 11:59 PM EST for those who don't live on the east coast. Not every aspect of the ANPRM or NPRM has to be addressed. A commenter can opt to comment on a specific topic or section that they only wish to or feel able to.

Comments vary in form, length, and specificity. However, there are some things that a person submitting a comment will want to consider. Specificity is key. Providing a basis for the support or opposition to a proposed rule is crucial. Citing to studies or other evidence-based information is useful to show the agency why or why not a proposed rule is useful. In the instance of an ANPRM, responding to the specific questions posed by the agency is a particularly good strategy (not to say a commenter could not and should not go broader in their response). Regulations.gov has some more tips.

As important as comment “dos” are, there is one comment “don't” that should be avoided: the Form Letter. As comment periods are not a measure of “popularity”, flooding the agency with form letters do not serve a useful purpose in the rulemaking process. A comment that is well reasoned is a much better avenue to pursue and not very difficult.

The Final Rule

After an agency has reviewed the comments submitted to it, it either elects to move forward with the proposed rule in a final form, changes the final rule slightly from feedback obtained in the comments, or starts the process again if there is a major revision to the rule.

After a final rule is adopted by the agency and reviewed by OIRA, it is published in the Federal Register with an effective date. The notice will include the final rule's language, which will be added to the Code of Federal Regulations (CFR) on that effective date.

In order to help shape or prevent unnecessary regulations from being implemented, it is important to partake in the comment process. Once the ANPRM is published, this article will be updated with links to the Federal Register and Regulations.gov so that readers can partake in the process.

ABOUT THE AUTHOR

Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He is back on the ballot for the NRA Board of Directors in 2018 and has introduced a series of proposed by-law changes to restore accountability to the members. Adam hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world. He also was the general manager of a gun store in the suburbs of Philadelphia.