David Codrea: ATF claims Administrative Procedures Act exemption for proposed ammo ban notic

A spokesperson for the Bureau of Bureau of Alcohol, Tobacco, Firearms and Explosives told Gun Rights Examiner Wednesday afternoon that ATF’s recent ammunition ban proposal is not required to be published in the Federal Register. That claim was in answer to a query after determining ATF’s notice does not appear in the government’s official journal, and further noting a Wednesday Reuters report that a tangentially-related lack of rulemaking publication was given by a Texas judge as his reason for blocking the Obama administration’s “immigration overhaul.”

“U.S. District Judge Andrew Hanen … faulted Obama for not giving public notice of his plans,” the report explains. “The failure to do so, Hanen wrote, was a violation of the 1946 Administrative Procedure Act, which requires notice in a publication called the Federal Register as well as an opportunity for people to submit views in writing.”

While the Bureau of Alcohol, Tobacco, Firearms and Explosives has invited public comment in its “framework for determining whether certain projectiles are “primarily intended for sporting purposes” within the meaning of 18 U.S.C. 921(a)(17)(C),” correspondents with this column question if that meets the requirements of the APA, which states “General notice of proposed rulemaking shall be published in the Federal Register…”

No such notice has been posted at this writing by ATF. A search of Regulations.gov (“Your voice in Federal decision-making”) also turns up nothing.

Per Denise Brown of ATF Enforcement Programs and Services in this afternoon’s telephone conversation, this will “not actually be a [regulatory] change, more of a policy along those lines.” Brown said the framework document is a notice only, and will therefore not be published in the Federal Register, characterizing the document’s intent as “information gathering” in order to collect technical information, which could affect the Bureau’s final determination.

Brown confirmed ATF’s decision not to publish in the Federal Register is based on the exemption provision in the APA. That states “Except when notice or hearing is required by statute, this subsection does not apply … to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” Also exempted is “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”

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