ATF Proposes Revisions To Explosives Renewal Applpication Form

ATF Proposes Revisions To Explosives Renewal Applpication Form
Reeves & Dola, LLP
Reeves & Dola, LLP

USA – -( On April 20, 2015, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) published a notice in the Federal Register seeking comment on proposed changes to ATF Form 5400.14/5400.15 Part III, “Federal Explosives Licenses (FEL) Renewal Application.”

The purpose of the revision is to clarify that renewal applicants must submit Employee Possessor Questionnaires for all employee possessors, not just new possessors. ATF originally published the proposed changes on February 12, 2015 with a 60-day comment period. ATF is now extending the comment period another 30 days until May 20, 2015. The Federal Register notice may be read in its entirety here.

Underlying Regulations and the Employee Possessor Questionnaire

ATF regulations in Part 555, Title 27 of the Code of Federal Regulations, require applicants for FELs and permits to submit with the application an Employee Possessor Questionnaire (EPQ), ATF Form 5400.28, for each employee authorized to possess explosive materials (see 27 C.F.R. §§ 555.33, 555.45, and 555.46). The EPQ must be submitted with the initial FEL application as well as with a renewal application. ATF uses the EPQ to conduct a name-based background check to ensure the employee is not prohibited under federal law from possessing explosive materials.

An employee possessor is an individual who has actual or constructive possession of explosive materials during the course of his employment. Actual possession exists when a person is in immediate possession or control of explosive materials (e.g., an employee who physically handles explosive materials as part of the production process; or an employee, such a blaster, who actually uses explosive materials). Constructive possession exists when an employee lacks direct physical control over explosive materials, but exercises dominion and control over the explosive materials, either directly or indirectly through others (e.g., an employee at a construction site who keeps keys for the magazines in which the explosive materials are stored or who directs the use of explosive materials by other employees; or an employee transporting explosive materials from a licensee to a purchaser).

FEL Renewal Form

The instructions on the EPQ and on ATF’s website specify that a renewal applicant must submit an EPQ for all employee possessors, including those who may have already received a letter of clearance based on an EPQ. However, the current FEL Renewal Form states an EPQ must be completed for each additional employee possessor. This contradiction has caused confusion with renewal applicants who understood the instruction to require an EPQ only for new employee possessors. The proposed revisions to the renewal form add instructions to make it clear the applicant must include a completed EPQ for all employee possessors, both current and new.

ATF officials advise us that license and permit holders occasionally submit renewal applications with EPQs only for employee possessors hired during the 3-year period after issuance of their last license or permit. Renewal applications submitted without this information are delayed while ATF contacts the applicant to obtain the missing forms. Licensees and permittees may avoid delays by submitting EPQs for ALL employee possessors with the renewal application.

The above analysis is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish, in and of itself, an attorney-client relationship.

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