Second Letter in opposition to the DOJ Regulation

[hoffmang]

All,

Here is my new and updated letter in opposition to the newly revised Proposed Regulations (7 pages, single spaced PDF 40k):
http://www.hoffmang.com/firearms/Hoffman-Letter-Draft-2006-11-12-01.pdf

This is a nearly final draft. Take a look. Feel free to steal. Also, please point out any errors.

A couple of notes:

This was patterned after OAL rejection rulings, Government Code, and the CCR enabling OAL/APA in Title 1.

As I was researching it appears that we can only challenge a regulation based on comments that are in the file sent over by DOJ to OAL. Make sure we cover all the bases (Jason D an TM?)

Part of my research popped up the fact that we can't interact with OAL after DOJ forwards the file over for final rulemaking so don't plan on that.

The more I read, the more confident I have become that either DOJ or OAL will either not move this forward or will reject it.

Once I let this gel and proofread it a couple of more times I'm putting it on letterhead and sending it to Sacramento by a couple of methods.

-Gene

[adamsreeftank]

Excellent letter.

Thanks for putting the hard work into it. I hope it helps the cause.

The only typo I saw was near the top of page 6 where you put "note" instead of "not".

Great job.

[Blacktail 8541]

Very well thought out and easy to follow. The only area that I had to re-read to follow your intent was pg 4 section 2 under the heading Consistensy.

[Paratus et Vigilans]

Bravo, Gene!

It will be interesting to see what kind of tapdance the folks at DOJ engage in when they attempt to rebut the points you've made!

Nothing proves more strongly the invalidity of a legal argument than desparately clinging to it in the face of all challenges, against all logic and reason. DOJ will need to do this to back up their proposed "clarification," and in so doing should only succeed in speeding its demise.

Some people never learn to admit when they're wrong and move on.

Oh well.

Again, great job! If I see anything to critique after a couple more read-throughs, I'll let you know!

[tiki]

I am working of the final points of mine. I should have it finished today and will post it also, for critique. I will wait until tomorrow at lunch to send it to give you all time to make comments.
I'll have it up this afternoon.
T.


Edited: Gene, check (f)(3) under Consistency. The sentence starts "A firearms is not..."

Also, the last sentence it Consitency has "and do so" in it. I think it should be "and does so".

Oh, and one more thing. You letter kicks A s s!

[thmpr]

Wow....well put! especially like the part about the Admin Act. Will this hold up?

[M. Sage]

That's a great letter. You make some extremely persuasive arguments.

[hoffmang]

Thmpr - I think its going to be very hard for DOJ to show that they complied with the APA and not respond in depth on this letter. They may try to ignore that they are supposed to open a wider comment window, but that may cause the APA to not accept the regulation.

All - thanks as I found all the errors mentioned! Tiki - the do so/does so comment I couldn't find but it may have already been caught in my edits of the soft copy first. I'll go look back at the current PDF and confirm I've changed it.

I have a couple of additional items I want to call out so I'll post another draft later today.

I love the ability to have a bunch of expert eyes on something creating better and better work - Calguns is dramatically changing California.

-Gene

Edit: Tiki - Yeah - I pretty heavily re-wrote that section based on another comment in the thread so I've addressed everyone's comments!

[Scarecrow Repair]

Reasonable "gun enthusiast[s]" believe that

Second page about 2/3 of the way down.

[Joe]

Very well written. I will be mailing/emailing my letter tomorrow.

[tiki]

Here is my letter. You guys that are having trouble with writing your own, take what you want from this one. Just make sure you send one in.

Jeff Amador
Field Representative
Department of Justice
Firearms Licensing and Permits Section
P.O. Box 820200
Sacramento, CA. 94203-0200
Dear Mr. Amador:

I would like put forth my objections to the proposed modifications that were posted to the CAL-DOJ website on November 1, 2006. My objections pertain to the wording of the rule changes as well as the DOJ’s legal authority to effect such changes. I feel that this rule change does not comply with the California Administrative Procedures Act (APA) “clarity”, “authority” and “consistency” standards.

(SWRCB v. OAL) established that if a rule looks like a regulation, reads like a regulation, and acts like a regulation, it will be treated by the courts as a regulation whether or not the issuing agency so labeled it. Government Code section 11342.600 states that a “’regulation’ means every rule, regulation, order or standard of general application or the amendment, supplement, or revision of any rule, regulation, order or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern it procedure. ”Compliance with these standards is mandatory (Armistad v. State Personnel Board). Government Code section 11349.1, subdivision (a), paragraphs (2) and (4) require OAL to review each regulation for compliance with the APA “clarity”, “authority” and “consistency” standards.

“Authority,” as defined by Government Code section 11349(b) “means the provision of law which permits or obligates the agency to adopt, amend, or repeal a regulation. Under California Law, I don’t believe the DOJ has the authority to effect changes to these regulations. The proposed amendment exceeds the scope of the stated purposes of the regulation, which was to "define a sixth term, ‘capacity to accept a detachable magazine’, as meaning ‘capable of accommodating a detachable magazine, but shall not be construed to include a firearm that has been permanently altered so that it cannot accommodate a detachable magazine.’ The new changes alter the provisions of the current statute by extending and enlarging it such that firearms that were previously and are currently permitted under California law, illegal. As was shown in First Industrial Loan Co. v. Daugherty (1945) 26 Cal.2d 545, 550, “An administrative agency may not exercise its rulemaking power so as to alter, extend, limit, or enlarge the provisions of the statute that is being administered. In adding these conditions, the DOJ is altering, extending and enlarging the provisions of the current statute.

“Clarity” as defined Government Code section 11349(c) “means written or displayed so that the meaning of regulations will be easily understood by those persons directly affected by them.” My objections begin with the Statement of Reason document published by the DOJ. In its Statement of Reason, the DOJ contends that “the proposed definition will add clarity to the existing statutes but will not change or affect their current application and enforcement.” This is not true. The current regulations established by Senate Bill 23, added PC 12276.1 to expand the definition of an assault weapon as a semiautomatic, center fire rifle that has the capacity to accept a detachable magazine and any one of a list of characteristics. In Cal. Admin. Code tit. 11, s 5469, the DOJ itself defined a “detachable magazine” to mean “any ammunition feeding device that can be removed readily from the firearm with neither disassembly of the firearm action nor use of a tool being required.” This is pretty clear. Therefore, if an ammunition feeding device is affixed to the firearm, and, it requires a tool to remove it, by the definition, it is no longer a detachable magazine. Since the magazine well of the firearm contains an object (the now fixed magazine itself) that prevents the insertion of a detachable magazine, it no longer has the capacity to accept one. If the device is removed, the capacity to accept then exists. However, confusion is added by the proposed changes to the statute because some of the examples given by the DOJ as firearms not possessing the “capacity to accept” are no less capable of accepting than those with a device fixed in the magazine well.

“Consistency,” as defined in Government Code section 11349(d) “means being in harmony with, and not in conflict with or contradictory to, exiting statutes, court decisions or other provisions of law.” By adding section (f)(1), the DOJ is changing the regulations such that they are now inconsistent with existing regulations. It is obvious that the intent of the rule change is not to clarify the existing rules, but to prevent the use of the Prince 50 or similar magazine locking devices currently in use by the public and allowable under the current statutes, codes and definitions. This device satisfies the current rules by requiring the use of a tool to remove the ammunition feeding device and it removes the capacity of the firearm to accept a detachable magazine. The proposed wording change is not only inconsistent with, but also adds confusion to the current rules because it introduces ambiguous phrases such as “readily modifiable to receive a detachable magazine.” Readily modifiable is ambiguous because what is readily modifiable to one individual my not be readily modifiable to another. There is no clear definitional difference between something that is modifiable and something that is readily modifiable.

Section (f)(2) further changes the regulations by specifying that the device that prevents the magazine from being removed must contain alterations to the magazine well. This does not clarify the “use of a tool” nor does it change its “capacity to accept” but introduces an additional requirement that the design of such a device requires a modification to the firearm. This is also a contradiction to current rules. The current rule only specifies that if a tool is required to remove the ammunition feeding device, then it is no longer a detachable magazine. . The proposed changes add confusing alteration to the magazine well standards and it places the burden on the public to determine what constitutes an allowable alteration.

Section (f)(3) is ambiguous in defining the disassembly of the action of the firearm. What constitutes the action of a firearm? What constitutes disassembly? Separating the upper and lower receiver can constitute the disassembly of the action. If disassembly of the action involves removing the bolt, then the manner in which the magazine is affixed to the lower receiver is dependant on how the upper receiver is assembled. This is ridiculous because the upper and lower receivers are two distinct separate components which are interchangeable and often sold separately. The transfer of the lower receiver requires a Federal Firearms Dealer, while the upper does not. A law abiding citizen could be made to be a felon simply by disassembly of the firearm for cleaning, purchasing components over the internet, delivery to a gunsmith for repairs or interchanging parts. The DOJ is not clarifying any rule here, just adding the condition that the action must be disassembled, and again, putting the burden on the public to determine what exactly constitutes the disassembly of the action. It also introduces the likelihood that what are now normal, legal and legitimate activities could soon become felonies.

The inclusion of the phrase "removed, reversed, or disengaged, without alteration to the magazine well" limits the allowable modifications to the four modifications listed in subdivision (3) despite the inclusion of the unrestricted language "for example" used in subdivision (3). This is also true despite the fact that the four proposed approved "examples" are reversible and conflicts with the alleged intent of the newly proposed regulation. These changes are also different than what is currently allowed under the statute as it appears in California Penal Code.

1. This rule change will have negative effects on the public because:
2. The proposed amendment does not satisfy the requirements of the APA standards of “clarity”, “authority”
and “consistency”.
3. The DOJ is exercising its rulemaking power such that it is altering, extending and enlarging the current provisions of the
statute.
4. It will make thousands of firearms, which were purchased legally under the current regulations, assault weapons.
5. The proposed amendment affects the public by making criminals out of law abiding purchasers of firearms who relied
upon the DOJ’s previous interpretations and the wording of the current statute and definitions to assure them that
firearms purchased were lawful.

Based on the arguments and facts set forth in this letter, I request that the DOJ abandon the proposed changes to the statute.
Sincerely,

[xenophobe]

Excellent letter Gene! Absolutely brilliant!


Tiki.... could you edit your post please? :::

http://www.ivytech.edu/fortwayne/images/cis.jpg

[pacificcoast]

hoffmang, looks like you put alot of research into your letter and it shows. thats a very strong and convincing argument you've put forth. hopefully the OAL takes it into consideration.

[tiki]

Excellent letter Gene! Absolutely brilliant!


Tiki.... could you edit your post please? :::

http://www.ivytech.edu/fortwayne/images/cis.jpg


Sure. Edit it for what?
T.

[blacklisted]

Sure. Edit it for what?
T.

It's hard to read in one block like that, he means for you to add spaces between the paragraphs (it lost its formatting when you copy/pasted it.)

[tiki]

It's hard to read in one block like that, he means for you to add spaces between the paragraphs (it lost its formatting when you copy/pasted it.)


Ahh. Ok. Thanks. Sorry.

[Wumpscut223]

For those of us without the time to write our own... which one should we send?

[tiki]

For those of us without the time to write our own... which one should we send?

It's ok to send a copy of mine.

[avidone]

For those of us without the time to write our own... which one should we send?

hoffmang also said "Feel free to steal". I take that to mean that the content can be used in a letter to the DOJ.

[xenophobe]

Sure. Edit it for what?
T.


Thank you. Excellent letter. :)

[hoffmang]

Feel free to steal means that you should take liberally from my letter (or take it all) but make sure it does come from you.

Here is my final version:
http://www.hoffmang.com/firearms/Proposed-Rulemaking-Letter-2006-11-13-public.pdf

-Gene

[PLINK]

Great letter Gene.

[crazyXgerman]

very nicely done, gene!

[bwiese]

Gene and other experts: Do you think that it is a good idea to also write a letter to the Sec.of State's OAL, and complain how the DoJ is violating the rulemaking procedure? Enclosing a copy of the letters I wrote to the DoJ as evidence?

Good point, but NOT QUITE YET. These letters will be seen by OAL as part of rulemaking submission package.

Don't wanna go off half-cocked too early. After the DOJ digests our submissions and makes some more public noise, and a 10 day clock starts ticking, THEN we FedEx senior OAL staff and Sec State.

[hoffmang]

My reading and a brief interaction I've had with OAL leads me to believe that we as the public will not be able to interact with OAL directly.

I also have read in one of the OAL regulation denials where OAL scolds the regulatory agency for not correctly and completely handling submitted comments. Note that someone at DOJ will have to certify under penalty of perjury that the file is complete. If DOJ attempts to play fast and loose with our comments it will be readily apparent to the OAL. For an example of this read - http://www.oal.ca.gov/decision/06-0509-01%20DOI.pdf

Another important note though is that a court challenge to the regulation in State court is limited to the comments in the record so we need to make sure we've touched on all the possible issues either this round or last.

-Gene

[bwiese]

I do think an eventual approach to OAL by concerned parties will be unique and garner attention. Carefully thought-out letters should be sent there at the appropriate time, but for now we need to follow procedure and send additional commentary to the DOJ at the appointed time.

[hoffmang]

Also, the Final Statement of Reasons will really determine if/whether we need to do anything at OAL.

We've pointed out all the reasons OAL will bounce a regulation. The main things to check is that all of our issues are in the statement and that they are honestly responded to.

-Gene

[artherd]

In the unlikely event DOJ were to try try anything fast and loose with the file being sent to OAL, I am sure that there are many of us whom have proof of delivery of various documents.

[tiki]

In the unlikely event DOJ were to try try anything fast and loose with the file being sent to OAL, I am sure that there are many of us whom have proof of delivery of various documents.

Yep. Return Receipt.

[drclark]

Gene,

Thank you for posting your letter. It helped me alot in coagulating alot of my thoughts into a coherrent message.

drc