The steps to making Trump’s bump stock regulation a reality

In the wake of the tragic Parkland, Florida school shooting, President Trump committed to move quickly to clarify whether “bump fire stocks,” devices that increase a firearm’s cyclic firing rate, can be regulated — and banned — as machine guns. Turning to Attorney General Jeff Sessions, he said “I expect, Jeff, that these critical regulations will be finalized very soon.”

Just how soon they can be finalized, though, is constrained by longstanding legislative and executive requirements that may seem frustrating, but ensure reasoned analysis and opportunities for public comment. 

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) of the Department of Justice is responsible for enforcing the Gun Control Act of 1968 (GCA) and the National Firearms Act of 1934 (NFA). The NFA, as amended, defines “machinegun” as a weapon that can automatically shoot more than one shot without manual reloading and with a single pull of the trigger — the GCA bans machineguns.

{mosads}Although it may seem straightforward, ATF has needed to clarify the definition of machinegun multiple times in the past two decades. Most recently, ATF issued an advanced notice of proposed rulemaking seeking public input on whether that definition includes bump fire stocks. The public had until Jan. 25 to submit feedback to the agency.

If ATF follows through with a proposed rule, it could subject bump stocks to the same ban applied to machineguns. But first, ATF will have to satisfy several procedural requirements. 

To proceed with the rulemaking process, ATF must now evaluate the tens of thousands of comments it received on its advanced notice. If ATF concludes it has the legal authority under the GCA and the NFA, its next step will be to craft a proposed rule that should take into account both evidence, public input and its own analysis of the likely impacts of alternative regulatory approaches.

Then ATF will likely prepare a “regulatory impact analysis” that lays out the pros and cons of alternative regulatory actions that are consistent with the law. This transparent accounting of likely outcomes is invaluable for weighing different options and understanding both the desired effect of actions, and any unintended consequences — before a rule becomes law.

ATF will then share its draft proposal with the Office of Information and Regulatory Affairs in the Office of Management and Budget. Since 1981, this office has provided what President Obama called “a dispassionate and analytical second opinion” on draft regulations, both by coordinating interagency review across the government and by ensuring agencies have weighed the likely positive and negative consequences of their proposed actions.

After this interagency review, ATF will publicly share its draft, and solicit comment on the legal authority for its preferred option, its supporting analysis, and likely impacts. This public comment period has been an integral part of the U.S. regulatory process for more than 70 years, and it serves an essential purpose by providing the American people an opportunity to weigh in on regulations that affect them: No matter how carefully an agency may have considered its options, it cannot possess all the knowledge and experience that may be relevant to its actions. This public comment process tries to ensure regulations are accountable and well-reasoned by welcoming input from any interested party. 

Based on public comments, the ATF will draft a final rule, which again will go through interagency review. Only after these steps, which combined may take a year or even longer, will the rule become final and effective. Even after it goes into effect, it will still be subject to review by the other two branches of government — for example, Congress could overturn the rule via the Congressional Review Act, or the rule may be challenged in court.

On Tuesday, the president issued a memo instructing the Department of Justice “as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.”

But, as the president noted, “Although I desire swift and decisive action, I remain committed to the rule of law and to the procedures the law prescribes. Doing this the right way will ensure that the resulting regulation is workable and effective and leaves no loopholes for criminals to exploit.”

All the steps and reviews needed to issue a regulation can be understandably frustrating to those desiring action now, but they are a fundamental component of our regulatory process. Taking the time to gather public input and assess the effects of a rule is essential for ensuring government policies are viable, and based on careful deliberation and analysis.

Susan E. Dudley is the director of the George Washington University Regulatory Studies Center.

Sofie E. Miller is a senior policy analyst at the center.