Did ATF delay the ‘bullet ban’ because of public outcry?

Last week, the Bureau of Alcohol, Tobacco and Firearms (ATF) announced that it will be delaying a proposal to ban armor piercing ammunition. When announcing the delay, ATF cited public comments, saying, “The vast majority of the comments received to date are critical of the framework, and include issues that deserve further study.”

Federal agencies have been required since 1946 to solicit public comment on regulatory proposals and then to ensure that these comments are not merely dismissed out of hand. They are not required to do whatever the public wants (comments often express starkly different policy preferences, so this would be impossible in any case) but they must consider comments and respond to the public. For almost as long as public comment has been required, scholars of regulation have wondered if agencies actually take public comments into account when making regulatory decisions.

{mosads}Experts who have studied the issue are quite divided on the subject. One compared the public comment process to “kabuki theater,” saying that agencies go through the motions of listening to commenters but rarely actually change their proposals. Others have found that agencies take public comments seriously and often modify their proposals. Most find that if agencies do listen to public commenters, they are more likely to listen to organized interests, particularly businesses.

The ATF announcement appears to argue that agencies do listen to the public at least when there is an overwhelming proportion of the public commenting on one side of an issue. But not so fast: There are at least three good reasons to think that the ATF decision was not driven by a perception that the public was unhappy with their proposal. First, there are numerous examples when there are an overwhelming number of comments on one side of an issue and the agency does not deviate from its proposal. One famous example is the George W. Bush administration’s decision to allow snowmobiles in Yellowstone National Park.

The second reason not to take the ATF’s announcement as a testament to the power of public comments at face value is that the comments were likely not a spontaneous public outpouring of anger but rather an organized campaign by one of the most powerful organized interests in Washington, the National Rifle Association (NRA). It is relatively common for powerful interest groups to organize email campaigns from their members. If, when ATF releases the comments, most of them look like identical (or nearly identical) form letters, we will have strong evidence that this is the case. And if we know it was the NRA, we can be certain that ATF knew it as well.

The third reason is related to the second one. If indeed this was merely a campaign organized by the NRA, then ATF has reason to be concerned. While it may not care so much about the 80,000 comments, it does care about a much smaller but much more powerful constituency. Agencies do not like having their proposals overturned by Congress. They also do not like having their appropriations slashed in response to policy changes that anger the congressional majority. The NRA is well known to be very powerful on Capitol Hill and the large number of comments was a signal to the ATF that the gun lobby cares a lot about this issue and will be ready to punish the agency in Congress if it moves forward.

Congressional supporters of the “bullet ban” will now try to use legislation to move forward on the issue. Opponents have also introduced legislation that would ban the ATF from ever proceeding on the issue. Having successfully deployed its ability to generate large numbers of public comments to sideline the ATF regulation, the NRA will now turn its attention to Congress, where it has many other weapons at its disposal.

Shapiro is an associate professor and director of the Public Policy Program at Rutgers University and a member of the Scholars Strategy Network.