By Cody J. Wisniewski
Recently, President Biden’s Department of Justice (DOJ), along with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), issued two proposed rules to “reinterpret” (see: make new law) existing federal gun control statutes.
Importantly, these are proposed rules. They are not final, nor do they have the full force of law — yet.
The first proposal, which seeks to redefine the terms “firearm” and “frame or receiver” as well as create new legal terms, including “complete weapon,” “privately made firearm,” and “readily,” was published in the federal register on May 21, 2021. There is a 90-day public comment period, which ends on August 19, 2021.
The second, which proposes a new point-based system to determine whether a pistol with a “stabilizing brace” would be regulated as if it were instead a short-barreled rifle, was published in the federal register on June 10, 2021. There is also a 90-day comment period for this proposed rule, which ends on September 8, 2021.
To date, over 50,000 people have commented on the proposed firearm definition rule, and over 35,000 have commented on the proposed stabilizing brace rule.
But once the comment deadlines pass, what happens?
First, the agency is required to review and address each and every distinct, relevant comment. The agency can ignore repetitive comments, comments that are wholly irrelevant, and comments that contain profanity. So comments like these will perhaps be reviewed, but are unlikely to result in any changes in the proposed regulation:
Sometimes, the agency undergoes the review process internally, and other times the agency retains a contractor to assist with wading through the comments.
In either event, federal law requires the agency to “base its reasoning and conclusions on the rulemaking record, consisting of the comments, scientific data, expert opinions, and facts accumulated during the pre‐rule and proposed rule stages.”
Once the agency reviews and addresses the comments, the agency finalizes the rule and sends it to the federal Office of Management and Budget for final approval. If the final rule is approved, it’s then published in the federal register with an effective date. The new, final rule only goes into effect on that date.
This process can take anywhere from 30 days (for rules where there are minimal to no comments) to more than a full year (like the Title IX reforms under the Trump Administration). Some proposed rules have received so many comments, the agency never actually published a final rule. Or, in rarer instances, they withdraw their request for comments entirely.
But the publication of the final rule doesn’t necessarily mean it will go into effect. An individual or organization can challenge the new rule in court under the Administrative Procedure Act (APA).
The APA lays out specific terms detailing who can file a lawsuit and the test for reviewing the agency’s rulemaking process. Part of the challenge can include arguments that the agency did not fully consider the comments submitted by the public or that the agency had already made up its mind and “pre-decided” an issue without regard to what the comments stated.
Even before the new rule’s effective date, the party challenging the rule may also request an injunction, which would pause the rule from going into effect until the case is completely decided.
In other words, once the comment period closes, the process is far from over. Given the number of comments already submitted and the time remaining to submit comments, it could take months or even years for the DOJ and ATF to thoroughly review and respond to everything.
The Title IX reforms that took over a year to issue? There were over 124,000 comments on the proposed rule. And even though it’s doubtful — given the pressure from officials in the Biden-Harris White House — DOJ and ATF could always give up and not publish a final rule at all.
The more comments the agency has to tangle with, the longer the process will likely take. Do with that information what you will.
Cody J. Wisniewski (@TheWizardofLawz) is the Director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues, but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.
To learn more about the Center to Keep and Bear Arms’ work and support their fight for your natural right to self-defense—from both man and tyranny—visit www.mslegal.org/2A and donate today!