Perez v. Mortgage Bankers Association Responsible For ATF pulling SS109 Comments??

[Sebastian the Ibis]

Folks,

Tuesday Morning, the Supreme Court overturned the D.C. Circuits' Paralyzed Veterans Doctrine in Perez v. Mortgage Bankers Ass'n. The gist of the ruling is that notice and comment is no longer required for interpretive rule changes under the D.C. Circuit's interpretation of the Administrative Procedures Act.

I have not had a chance to dig into the Perez opinion in any detail, but I wonder if the ATF's action Tuesday regarding the notice and comment period for SS109 is really the ATF just digesting Perez and figuring out how to jamb it down our throats.

Are there any APA wonks on this board that might be able to shed some light this issue?

A link to the Perez opinion is here: http://www.supremecourt.gov/opinions/14pdf/13-1041_0861.pdf

 

[Bartholomew Roberts]

Don't know if you read it; but someone at Prince Law Blog reached that same conclusion. Their hypothesis was that removing the exemption for M855 was fatal to any attempt to characterize the proposed framework as an interpretive ruling and that contrary to what ATF stated, they may not offer either notice or an opportunity to comment when they reintroduce it.

If this hypothesis is correct, then ATF will basically keep the same framework but just reword it so that they can better argue it as an "interpretive ruling." IIRC, only one interpretive ruling has ever been overturned by the courts.

ETA: http://blog.princelaw.com/2015/03/1...n-regarding-ss109m855-ammunition-not-so-fast/

Here is the key bit:
"As ATF’s original Notice of Proposed Framework likely constituted a procedural rule, it was not likely subject to the notice-and-comment procedures under the Administrative Procedural Act, except for the ammunition specifically addressed. This may be why ATF erred on the side of caution in permitting comments but did not notice such comment period in the Federal Register. Regardless, ATF opened the door by permitting comments through March 16, 2015, and it is imperative that all individuals and entities that desire to comment on its proposed framework submit comments in opposition before the close of the comment period on Monday, March 16th. Contrary to ATF’s statement, as has been consistently reflected under the current Administration, an open and transparent process is anything but what has been provided, as will be further explained in FICG’s Comment in opposition. Further, although ATF states that it will further study the issues raised, assuming any framework constitutes a procedural rule, with the exception of the ammunition specifically addressed, ATF could move forward without any further notice or comment period."

 

[Derry 1946]

Striking down the Paralyzed Veterans doctrine does open the door to more such rules, but the High Court was signaling a deep concern over executive fiat and openly invited a challenge to Auer deference and perhaps even Chevron deference. They focused heavily on the extent to which an agency can bind parties without notice, and remain within the confines of the Constitution. Though this was dictum, it was strongly worded, and I think agencies will tread carefully in light of SCOTUS's admonition.

 

[Bartholomew Roberts]

If they did as Justice Thomas described in the footnotes of his concurrence, this wouldn't be a big deal.

 

[barnbwt]

I doubt an interpretive dance, er, ruling, with such a violently widespread and opposed history as M855s is now would survive court review after being subsequently slipped 'neath the radar. Courts would rightly find the move to be evasion of the congress/public.

TCB