Federal rulemaking should be open and transparent. This outcome is supposedly ensured by the Administrative Procedure Act of 1946 (APA).
Across federal agencies, the rules should be the same for everyone. They should be open for public comment while still in draft form and publicly available once finalized. Moreover, every industry and every individual should get the same answer to the same question. Anything less is not rulemaking: it is arbitrary government.
As conservatives have anxiously pointed out for years, the rise of the administrative state has corrupted the rulemaking process. Enabled by an overly-deferential judiciary and a supine Congress have allowed agencies to move beyond drawing up rules to implement carefully written laws passed by Congress. Now, regulators take block grants of Congressional power to make their own laws as they see fit. This is incompatible with the continued existence of the United States as a constitutional republic.
So conservatives rightly cheered when President Trump, in one of his first acts in office, issued a “2 for 1” executive order, requiring the federal government to cut two rules for every new rule it issued. They cheered again when former Attorney General Jeff Sessions reined in administrative rulemakers in the Department of Justice. His Nov. 16, 2017, memo prohibited them from using public guidance documents as a substitute for rule-making under the APA and required to work within the authority delegated by Congress.
All of this was entirely for the good. But in the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the ATF, it has gone entirely wrong.
The Sessions memo was backed up in January 2018 by a new Department of Justice policy that “prohibits the use of agency guidance documents in affirmative civil litigation in a manner that would convert such guidance into binding rules of conduct.” The ATF understood these directives to mean that it had to stop issuing public, industry-wide guidance or opinions—the very documents that could ensure uniform compliance in industry with existing regulations. When this author reached out to ATF for comment, the ATF stated that it was of course abiding by the former Attorney General’s memo, and that “we do not interpret the law.”
As a result of its understanding, the ATF now operates almost exclusively by private letters. It has not published a ruling on firearms or explosives since July 2017, and its only notifications on proposed rule-making since December 2017 relate to the politically-charged (and politically-motivated) pursuit of bump stocks.
This was not the outcome the Sessions memo envisaged. The memo makes it clear that “not every agency action is required to undergo notice-and-comment rulemaking.... [A]gencies may use guidance and similar documents to educate regulated parties through plain-language restatements of existing legal requirements or provide non-binding advice on technical issues.” The point of the memo was to prevent department rule-makers from using public guidance documents to evade the rulemaking process, not to stop them from issuing any public guidance at all. Education is not interpretation.
The ATF’s approach means that each industry member that asks a question about how to apply or interpret the rules gets its own private answer, an answer that none of its competitors knows about and which does not serve as a legal precedent. It means that no one in the industry has any certainty, not even the firm that asked the question in the first place, because the ATF can always change a decision it made in a private “no-action” letter later on. And it means that the ATF has almost complete discretion in how it regulates, because it is creating no precedents.
According to Jared Febbroriello, a lawyer working with firearms and defense companies “It is disconcerting that any agency that is tasked with interpreting the law might seek to restrict the public’s ability to access their interpretations but given the potential for criminal prosecution and the heightened risk for the loss of life, liberty and property that is associated with firearms one would think that ATF would be embracing complete transparency. Sadly, they are not.”
At this year’s Shooting, Hunting, and Outdoor Trade Show, run by the National Shooting Sports Foundation, disquiet at the ATF’s position had grown from last year’s unhappy rumble to a persistent buzz. And at the annual meeting of the F.A.I.R. Trade Group — the industry group for firearms importers and exporters — industry members expressed frustration over ATF’s inability to issue public guidance. As attorney Johanna Reeves, executive director of the F.A.I.R. Trade Group put it to me, ATF’s inability to issue public guidance documents is “a significant regulatory challenge to the industry — and our members — in terms of compliance.”
In the Trump administration, this is bad enough. In an administration that actually wanted to hurt the firearms industry, the damage this approach could do is incalculable. It is arbitrary and unfair. It is also tailor-made for those wishing to create legal uncertainty and play political favorites.
Incredibly, in the hands and the realm of the ATF, an effort to clamp down on the power of the administrative state has ended up making the administrative state more powerful than ever. There are excellent reasons not to want federal bureaucracies to circumvent the APA. But the alternative to preventing circumvention of the APA is not private letter rulings. It is law passed by Congress and administered by the federal government publicly, fairly, and in line with Congress’s intent.
Anyone who says that the firearms industry just hates the ATF because the ATF is reining in the cowboys by private letter is, frankly, ignorant. The firearms industry is already one of the most heavily-regulated in the United States. Anyone who works in this industry and doesn’t follow the rules can get in big trouble very quickly. What the firearms industry wants is for ATF policies and interpretations to be open and transparent so as to promote an even playing field.
Few in the firearms industry doubt that the Trump administration has been better for it than a Hillary Clinton administration would have been. But from its prohibition of bump stocks to its inaction on the Arms Trade Treaty to its private letter ATF, the administration is far from winning the industry’s unconditional plaudits. And that’s fine: governments shouldn’t be on industry’s side. Government shouldn’t play favorites — which is exactly what the ATF risks doing by ruling by private letter.
This piece originally appeared in Forbes