Found this over at the falfiles:
Letter to AG Gonzalas and congress
Down farther in the thread it mentions that Shotgun News (The Knox Report) is giving this issue some attention.
http://www.falfiles.com/forums/show...462#post1343462
The Honorable Alberto Gonzalez
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, D.C. 20530-0001
Dear Mr. Attorney General
Prior to the Bureau of Alcohol, Tobacco, Firearms and Explosives becoming another one of your many responsibilities, there have been numerous instances of legal and administrative irregularities within that organization. I am writing this in order for you to investigate and correct these inequities as they directly affect and contravene the constitutional rights of all law-abiding citizens.
As you are aware, various federal statutes and policies insure that administrative agencies such as the Department of Justice and its associated components solicit and consider public comment when developing policy, engaging in rulemaking, or undertaking other activities having general prospective effect. I am concerned that prior to its transfer from the Treasury Department to the Justice Department, whether through inadvertence or design, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) has failed to adhere to the public participation requirements in exercising its authority under 18 U.S.C. 925(d)(3).
Background
18 U.S.C. 925(d)(3) provides:
The Secretary shall authorize a firearm or ammunition to be imported or brought into the United States or any possession thereof if the firearm or ammunition . . . is generally recognized as particularly suitable for or readily adaptable to sporting purposes . . .
Congress and the Courts have recognized that this section creates a non-discretionary duty on the part of the Secretary to authorize importation of any firearm, not otherwise prohibited, of a type particularly suitable or readily adaptable to sporting purposes.
As you are aware the Administrative Procedure Act defines the term “rule” broadly to include:
[T]he whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.
5 U.S.C. 551(4).
Yet, despite this broad definition, when implementing the “sporting purposes” clause of 18 U.S.C. 925(d)(3), BATFE has never treated its determination of whether a particular firearm is importable as a rulemaking action warranting APA notice and comment requirements. This is of particular concern in light of the supplemental rulemaking instruction in 18 U.S.C. 926 which may be read as a requirement that the Secretary utilize notice and comment rulemaking for all such rules necessary for carrying out the provisions of 925(d)(3). Instead, the BATFE has relied on handpicked, ‘agency outcome preferred’ sources of information and comment to assess whether particular firearms meet the “sporting purposes” tests. For example, in 1968 the agency selected a hand picked “Firearms Evaluation Panel” to consider whether various firearms met the tests. However, following the passage of the Federal Advisory Committee Act in 1972, which might have required that the Firearms Evaluation Panel be balanced and open in a manner not previously required, BATFE abandoned the panel in favor of a “working group” that continued to solicit information from narrow, handpicked individuals and constituencies. See, e.g. Report and Recommendation of the ATF Working Group on the Importability of Certain Semi-Automatic Rifles (July 6, 1989); Department of the Treasury Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles (April 1998).
Requests for clarification:
1) Please explain why the BATFE has historically declined to utilize notice and comment rulemaking for making determinations as to whether particular firearms are “not suitable for” or “not readily adaptable to” sporting purposes.
2) Please explain BATFE’s interpretation of its notice and comment rulemaking obligations under 18 U.S.C. 926. In particular, please explain why BATFE has not viewed the section as a requirement to utilize notice and comment rulemaking when making “sporting purpose” determinations under 925(d)(3).
3) Please explain BATFE’s basis for abandoning “panels” in favor of “working groups” to assess the importability of various firearms. Please explain how FACA’s requirement of balanced points of view is being met under the working group concept.
4) In the event that BATFE views “sporting purposes” determinations as “interpretive rules” or “general statements of policy,” please defend the Bureau’s decision to decline to utilize notice and comment rulemaking contrary to Recommendation 76-5 of the Administrative Conference of the United States, which provides in pertinent part, “Before an agency issues, amends, or repeals an interpretive rule of general applicability or a statement of general policy which is likely to have a substantial impact on the public, the agency should utilize the procedures set forth in Administrative Procedure Act subsections 553(b) and (c)…” 41 Fed. Reg. 591-596. I would suggest that since over 80% of the firearms in public hands in the US are of military origin or design, how could that above action possibly be defensible?
5) The Regulatory Flexibility Act as amended by the Small Business, 5 U.S.C 601 et seq., is triggered by agency rulemaking activity. In declining to initiate rulemaking proceedings when making “sporting purposes” determinations, what consideration has the agency given to the impact of such determinations on small entities as defined at 5 U.S.C. 601?
6) The 11th Circuit Court of Appeals has indicated that:
The term "generally recognized" in section 925(d)(3) suggests a community standard which may change over time even though the firearm remains the same. Thus, a changing pattern of use may significantly affect whether a firearm is generally recognized as particularly suitable for or readily adaptable to a sporting purpose.
Gun South, Inc. v. Brady, 877 F.2d 858, 866 (11th Cir.1989)
Please explain precisely how the BATFE assess this community standard and analyzes such changing patterns of firearms use in the absence of notice and comment rulemaking.
7) In 1998 the BATFE restricted the importation of a number of rifle types on the basis of such rifles’ ability to accept a “large capacity military magazine.” To a large extent BATFE determined that such a feature rendered such rifles not particularly suitable to sporting purposes on the basis of the Violent Crime Control and Law Enforcement Act of 1994. Specifically BATFE found, “by passing the 1994 law, Congress signaled that firearms with the ability to accept large capacity magazines are not particularly suitable for sporting purposes.” Given that the 1994 Act has lapsed and can no longer be said to signal congressional opinion, how has BATFE reassessed the importability of these rifles and what is the current basis for restricting their importation?
Thank you for your attention to this matter. I think it is clear from the foregoing that the Bureau has not sought public input to the maximum extent of its authority. Accordingly, in order to reassure all interested parties of the transparency and responsiveness of government agencies, I would urge your department to direct the Bureau to initiate a rulemaking proceeding to reconsider, at a minimum, the 1998 restrictions which appear to rely to a large extent on the lapsed 1994 Act. Continued reliance by the Bureau on lapsed statutory authority to support regulatory policy is simply put, an abrogation of my rights and that of over 80 million firearms owners that vote.
Respectfully,
Mark A. Greven
POB 47
Kettle Falls, WA. 99141
CC: Rep. Kathy McMorris
Well, there is is ladies and gentlemen. The collaborative effort of I and another file member. Feel free to copy it and send it to your reps as well, and I would suggest that people in Ron Paul's district get on this also.
Now you know why I haven't posted much, been late sending payments for things, for when you aren't working, you aren't making money. At least, not me.
Do I expect the AG to get right on this? Don't kid yourself. I expect to hear something in about 2 months, with everything that is going on right now. I would really hate to have his job right now, and the race-baiters will keep that office busy with Katrina items until the end of the next three presidents' terms.
Letter to AG Gonzalas and congress
Down farther in the thread it mentions that Shotgun News (The Knox Report) is giving this issue some attention.
http://www.falfiles.com/forums/show...462#post1343462
The Honorable Alberto Gonzalez
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, D.C. 20530-0001
Dear Mr. Attorney General
Prior to the Bureau of Alcohol, Tobacco, Firearms and Explosives becoming another one of your many responsibilities, there have been numerous instances of legal and administrative irregularities within that organization. I am writing this in order for you to investigate and correct these inequities as they directly affect and contravene the constitutional rights of all law-abiding citizens.
As you are aware, various federal statutes and policies insure that administrative agencies such as the Department of Justice and its associated components solicit and consider public comment when developing policy, engaging in rulemaking, or undertaking other activities having general prospective effect. I am concerned that prior to its transfer from the Treasury Department to the Justice Department, whether through inadvertence or design, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) has failed to adhere to the public participation requirements in exercising its authority under 18 U.S.C. 925(d)(3).
Background
18 U.S.C. 925(d)(3) provides:
The Secretary shall authorize a firearm or ammunition to be imported or brought into the United States or any possession thereof if the firearm or ammunition . . . is generally recognized as particularly suitable for or readily adaptable to sporting purposes . . .
Congress and the Courts have recognized that this section creates a non-discretionary duty on the part of the Secretary to authorize importation of any firearm, not otherwise prohibited, of a type particularly suitable or readily adaptable to sporting purposes.
As you are aware the Administrative Procedure Act defines the term “rule” broadly to include:
[T]he whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.
5 U.S.C. 551(4).
Yet, despite this broad definition, when implementing the “sporting purposes” clause of 18 U.S.C. 925(d)(3), BATFE has never treated its determination of whether a particular firearm is importable as a rulemaking action warranting APA notice and comment requirements. This is of particular concern in light of the supplemental rulemaking instruction in 18 U.S.C. 926 which may be read as a requirement that the Secretary utilize notice and comment rulemaking for all such rules necessary for carrying out the provisions of 925(d)(3). Instead, the BATFE has relied on handpicked, ‘agency outcome preferred’ sources of information and comment to assess whether particular firearms meet the “sporting purposes” tests. For example, in 1968 the agency selected a hand picked “Firearms Evaluation Panel” to consider whether various firearms met the tests. However, following the passage of the Federal Advisory Committee Act in 1972, which might have required that the Firearms Evaluation Panel be balanced and open in a manner not previously required, BATFE abandoned the panel in favor of a “working group” that continued to solicit information from narrow, handpicked individuals and constituencies. See, e.g. Report and Recommendation of the ATF Working Group on the Importability of Certain Semi-Automatic Rifles (July 6, 1989); Department of the Treasury Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles (April 1998).
Requests for clarification:
1) Please explain why the BATFE has historically declined to utilize notice and comment rulemaking for making determinations as to whether particular firearms are “not suitable for” or “not readily adaptable to” sporting purposes.
2) Please explain BATFE’s interpretation of its notice and comment rulemaking obligations under 18 U.S.C. 926. In particular, please explain why BATFE has not viewed the section as a requirement to utilize notice and comment rulemaking when making “sporting purpose” determinations under 925(d)(3).
3) Please explain BATFE’s basis for abandoning “panels” in favor of “working groups” to assess the importability of various firearms. Please explain how FACA’s requirement of balanced points of view is being met under the working group concept.
4) In the event that BATFE views “sporting purposes” determinations as “interpretive rules” or “general statements of policy,” please defend the Bureau’s decision to decline to utilize notice and comment rulemaking contrary to Recommendation 76-5 of the Administrative Conference of the United States, which provides in pertinent part, “Before an agency issues, amends, or repeals an interpretive rule of general applicability or a statement of general policy which is likely to have a substantial impact on the public, the agency should utilize the procedures set forth in Administrative Procedure Act subsections 553(b) and (c)…” 41 Fed. Reg. 591-596. I would suggest that since over 80% of the firearms in public hands in the US are of military origin or design, how could that above action possibly be defensible?
5) The Regulatory Flexibility Act as amended by the Small Business, 5 U.S.C 601 et seq., is triggered by agency rulemaking activity. In declining to initiate rulemaking proceedings when making “sporting purposes” determinations, what consideration has the agency given to the impact of such determinations on small entities as defined at 5 U.S.C. 601?
6) The 11th Circuit Court of Appeals has indicated that:
The term "generally recognized" in section 925(d)(3) suggests a community standard which may change over time even though the firearm remains the same. Thus, a changing pattern of use may significantly affect whether a firearm is generally recognized as particularly suitable for or readily adaptable to a sporting purpose.
Gun South, Inc. v. Brady, 877 F.2d 858, 866 (11th Cir.1989)
Please explain precisely how the BATFE assess this community standard and analyzes such changing patterns of firearms use in the absence of notice and comment rulemaking.
7) In 1998 the BATFE restricted the importation of a number of rifle types on the basis of such rifles’ ability to accept a “large capacity military magazine.” To a large extent BATFE determined that such a feature rendered such rifles not particularly suitable to sporting purposes on the basis of the Violent Crime Control and Law Enforcement Act of 1994. Specifically BATFE found, “by passing the 1994 law, Congress signaled that firearms with the ability to accept large capacity magazines are not particularly suitable for sporting purposes.” Given that the 1994 Act has lapsed and can no longer be said to signal congressional opinion, how has BATFE reassessed the importability of these rifles and what is the current basis for restricting their importation?
Thank you for your attention to this matter. I think it is clear from the foregoing that the Bureau has not sought public input to the maximum extent of its authority. Accordingly, in order to reassure all interested parties of the transparency and responsiveness of government agencies, I would urge your department to direct the Bureau to initiate a rulemaking proceeding to reconsider, at a minimum, the 1998 restrictions which appear to rely to a large extent on the lapsed 1994 Act. Continued reliance by the Bureau on lapsed statutory authority to support regulatory policy is simply put, an abrogation of my rights and that of over 80 million firearms owners that vote.
Respectfully,
Mark A. Greven
POB 47
Kettle Falls, WA. 99141
CC: Rep. Kathy McMorris
Well, there is is ladies and gentlemen. The collaborative effort of I and another file member. Feel free to copy it and send it to your reps as well, and I would suggest that people in Ron Paul's district get on this also.
Now you know why I haven't posted much, been late sending payments for things, for when you aren't working, you aren't making money. At least, not me.
Do I expect the AG to get right on this? Don't kid yourself. I expect to hear something in about 2 months, with everything that is going on right now. I would really hate to have his job right now, and the race-baiters will keep that office busy with Katrina items until the end of the next three presidents' terms.