gc70 said:
In the
example cited, businesses asked the agency for an advisory opinion...the laws and regulations involved did not require agency approval of the activities in question....
Advisory opinions of a regulatory agency are within the scope of an agency's quasi-judicial function. They will involve matters over which an agency has jurisdiction. Basically a request for an advisory opinion is asking the agency, "what would you do in the event of X?"
gc70 said:
...the point is that regulatory agencies do make non-public, internal interpretations and adopt policies and procedures for applying laws and regulations...
But only in connection with their quasi-judicial functions in connection with which they have jurisdiction only over those entities/licensee directly subject to their regulatory authority.
Thus internal interpretations might play a role in an ATF decision to reject an application for an FFL or to revoke an FFL for misconduct. And such determinations are subject to judicial review if the affected entity choose to pursue the issue. And the ruling of a court on such a question will be based on applicable law, including regulations adopted by the ATF through the rule making process.
On the other hand, if two private citizens are prosecuted for violation of federal law relating to interstate transfers of firearms, the prosecution will be conducted in federal court by the U. S. Attorney, not the ATF. The ATF has no prosecutorial jurisdiction over private citizens. And ATF internal interpretations of the law would be inapplicable. However, the question of state of residence will be determined in accordance with the ATF regulations adopted through the formal rule making process (subject to possible challenge as being outside the scope of the authority conferred by Congress, or on the basis of defects in the rule making process or as unconstitutional).
gc70 said:
...The vast majority of such regulatory determinations will not be challenged in court because it is either not economically viable to do so or the courts' deference to agency expertise dims the prospects of a successful challenge....
Whether or not to seek judicial review of an agency quasi-judicial action is up to the party adversely affected. As with any such decision, it will involve consideration of the possible costs, risks and benefits, as well as the likelihood of success. That's the same kind of analysis that goes into deciding whether or not to appeal an adverse judicial determination.
gc70 said:
...Those internal regulatory determinations may not be legally binding in a strictly technical sense, but they might as well be insofar as their real-world impact on those who must comply with the regulations...
Welcome to real life in the Twenty-First Century. This is all part of the challenge and cost of choosing to engage in a heavily regulated business. It's a fact of life for insurance companies, security dealers, banks, physicians, lawyers, taxi operators, pharmacies, gun dealers, etc.; and companies and people successfully engaged in those pursuits learn to deal with it effectively.
Some might think this level of regulation is wrong, and I won't disagree. But it is what it is. These things can be changed legislatively.