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Old October 15, 2019, 05:30 AM   #22
Spats McGee
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,248
Originally Posted by Aguila Blanca View Post
Not certain, but I believe in order to be codified in the CFR (Code of Federal Regulations) a regulation must first have gone through the entire public comment period/process.

Regulations in the CFR are regulations, not statutes, but they carry the weight of law. This is unlike various BATFE "interpretations," which appear and disappear based on the tide, the phase of the moon, and the whims of the person occupying the White House.
IMNSHO, the argument about non-compliance with the APA has a lot of potential for the 2A. If the BATFE has been making substantive changed with their classifications, re-classifications and "guidance," without meeting the APA's requirements, then prosecuting (or even threatening to prosecute) people based on those, that could be a real problem for BATFE.

And yes, for actual rule- or regulation-making, publication is mandatory.
(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include--
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply--
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except--
(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and published with the rule.

5 U.S.C.A. § 553 (West)
I've often wondered by nobody has FOI'd all of the various determination letters. I know they're individually issued, but I think they're open records, subject to public inspection.
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public--....

(2) Each agency, in accordance with published rules, shall make available for public inspection in an electronic format--
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;....

5 U.S.C.A. § 552 (West)
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.
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