Once again it is time to renew my explosives permit. There has been one significant change to the explosives laws since last time around. The ATF removed the class restrictions on permits as detailed elsewhere. But as is typical for the ATF they have not updated their forms to reflect this change.
When I asked other rocketeers about their experiences with their renewals I found that the ATF was not sending the correct form. The regulations specify one form for an original application (5400.13/5400.16, see 27 CFR 555.45) and another for renewals. (5400.14/5400.15, Part III, see 27 CFR 555.46)
When I renewed in 2004 the ATF sent form 5400.13 but I didn't make a stink about it because there had been significant changes from the Safe Explosives Act. However, now that it is four years after that change I plan on insisting that the ATF use the correct form. The main reason being that the ATF already has all of the required information on file from last time and does not need another photo, fingerprints, description of my magazine, etc.
This form and many others used by the ATF are subject to the Paperwork Reduction Act and must therefore be reviewed periodically. I read a notice published in the Federal Register stating that the renewal form was up for review. This notice included the following:
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Christopher R. Reeves, Chief, Federal Explosives Licensing Center, 244 Needy Road, Martinsburg, WV 25401.
So I fired off a letter to Mr. Reeves requesting a copy. Followed in thirty days with another. But I never received any reply to my request. I did file a comment with the OMB on the form but it was mainly a complaint about not being able to get the form.
After that preliminary round I waited till it was a bit closer to renewal time. So in February I called and requested a renewal form. What I received was a copy of the form for original application. So I called again and complained. After several calls and even a couple of emails I was given the phone number of Mr. Reeves. When I spoke with him it was very disappointing.
Mr. Reeves claimed not to have a copy of that form and further that it had not been used in the time he had been at the ATF. He claimed that he thought the form was currently being revised. Which is odd as it had just been approved, without change, by the OMB. Which was a complete surprise to Mr. Reeves when I told him.
So here we have a form, which the ATF told the OMB that they needed and whose purpose was to decrease the paperwork burden for renewals. Yet the head of the explosives licensing center says it isn't used and apparently can't lay his hands on a copy. This is even more incompetent than usual for the ATF.
Since the ATF refused to provide the proper form the next step was to send a letter to Senator Cornyn complaining about this. I had hoped that since he was able to motivate the ATF to process my last renewal that a query from his office might generate some action. Alas so far it has generated nothing from the ATF.
An "investigator" (the ATF keeps changing the official title of their field agents) from the local ATF office visited me in March for a compliance inspection. She had noticed my permit was expiring soon and just decided to do the inspection. Amazing. There were a couple of things she wanted that I would not do. The first was to sign a very poor copy of the drawing I had submitted in 2004 showing the location of my magazine. Apparently to confirm that nothing had changed. Since it was so poor a copy that the needed information was illegible, I decided that signing it would be a mistake.
The other was to sign off on the checklist she used when she went over the regulations. As this form was not an approved information collection I refused.
Lacking the proper form, I had to consider how I was going to file for renewal. I first thought about filing a partially filed out form 5400.13. Then I noticed that the signature block includes a statement about the form being complete. So I decided to skip that. Instead I just wrote a letter stating my intention to renew, enclosed a check for the renewal fee, and mailed it in on April 6.
After a couple of weeks had passed without my check clearing the bank, I fired off an email to the Federal Explosives Licensing Center to try and find out if they had in fact received my renewal. After several diversions including some bizarre interest in the sequence number of the check, they finally admitted to not having it.
At this point it was suggested that I resubmit my renewal along with another check. They also claimed that I did not have to submit fingerprints and a photograph as that was already on file.
Huh?
The form and the instructions clearly state that all of this must be included. There are no special instructions for the case of renewals. I guess the ATF will give you a pass on this only if you ask. Which is stupid and contrary to the intent of the Paperwork Reduction Act.
Alas they seem to be putting off Senator Cornyn's office as I received a letter informing me that they had not yet gotten a response from the ATF. But that is fine as I know what it is going to be: the form is currently being revised. I will be shocked if the ATF provides a coherent explanation of why it is being revised now and why it hasn't been used for many years.
So I will fill out most of pages 1 and 3 and send that in.
I mailed my renewal application for the second time on 3 May and the check cleared on 8 May. I then received a letter acknowledging my timely application for renewal dated 10 May. Interestingly it indicates that the letter is good for 6 months and they might have to send another one. This tells me that the ATF either doesn't know or perhaps simply doesn't care that the law as passed by Congress requires that they act within 90 days. So if they fail to act by 8 August I will be writing to Senator Cornyn again. I may piss some people off at the ATF but at this point that concerns me not at all.
Oh, unsurprisingly, the letter does not mention the little detail of 27 CFR 555.103(b)(1)(i) which says:
A licensed importer, licensed manufacturer or licensed dealer selling or otherwise distributing explosive materials (or a holder of a user permit disposing of surplus stock to a licensee; a holder of a user permit; or a holder of a limited permit who is within the same State as the distributor) who has the certified information required by this section may sell or distribute explosive materials to a licensee or permittee for not more than 45 days following the expiration date of the distributee's license or permit, unless the distributor knows or has reason to believe that the distributee's authority to continue business or operations under this part has been terminated.
So after the middle of June I am technically not allowed to purchase anything.
I was surprised to find my new permit in the mail today. I don't know if my past willingness to complain had anything to do with it. For some stupid reason, even though they claimed to be doing away with it, I received a type 34 User of Low Explosives permit.
I was also amazed that I received three documents. Each mailed separately in their very own blue envelope. The permit, a notice of clearance, and responsible person letter of clearance. Since there is no requirement to show these latter two documents to anyone, they aren't good for anything.
Wouldn't you know it. A response from Senator Cornyn's office arrived today. Attached was the utterly useless reply from the DOJ. Reproduced here. (Since I typed this in, there is a chance for typos.)
Dear Senator Cornyn:
The is in response to your letter dated February 26, 2007, to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) on behalf of your constituent, David Schultz. Mr. Schultz has requested assistance in obtaining an ATF Form 5400.14/5400.15 Part III, Renewal Application. This form is used to renew a Federal Explosives License/Permit. In addition, Mr. Schultz has requested clarification on the approval status of the form.
Pursuant to the Homeland Security Act of 2002, Public Law 107-296, Title XI, Subtitle C- Explosives, (also known as the Safe Explosives Act[SEA]) enacted on November 25, 2002 and effective on May 23, 2003, anyone purchasing or receiving explosives is required to have either a permit or a license from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The permit or license is issued on a 3 year basis and can be renewed prior to expiration. Currently ATF Form 5400.13/5400.16, Application for Explosive License or Permit, is being utilized to renew a license or permit. ATF is updating ATF Form 5400.14/5400.15 Part III and must forward the revised form, after completion of an internal review, to the Office of Management and Budget for final approval. ATF Form 5400.14/5400.15 Part II will be available to the public after Office of Management and Budget approval.
We hope this proves helpful to you in responding to your constituent. Please do not hesitate to contact us if you need further assistance.
W. Harry Ford
Assistant Director
Office of Public and Governmental Affairs
For reference here is the text of the letter I sent.
Dear Senator Cornyn,
I am writing because you are on a committee that has oversight responsibility over the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
I have been attempting to acquire a form, ATF F 5400.14/5400.15 Part (III), from the ATF required for renewal of my explosives permit, which expires on 1 May. The use of this form is required by ATF regulations at 27 CFR 555.46.
My attempts to get a copy of this form from the Federal Explosives Licensing Center have been fruitless as they insist on sending me the form used for an initial application: 5400.13/5400.16. This form requires a large quantity of information that the ATF already has. In addition it requires that I get a photograph and fingerprints made at additional expense. None of this information has changed and the renewal form is alleged to be designed to prevent this duplication of effort. In any case they have so far refused to provide this form to me claiming that form 5400.13/5400.16 is used for all permit applications and renewals. Sharon A. Wege claimed in an email "The one that was sent to you is what is now used for both new licenses and renewals."
This claim is strange in light of the recent submission of the renewal form to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act and approval for an additional three years. During that review process I attempted to get a copy so that I could comment on it. The Federal Register notice (pages 35703-35704) included:
"If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Christopher R. Reeves, Chief, Federal Explosives Licensing Center, 244 Needy Road, Martinsburg, WV 25401."
I wrote to Mr. Reeves twice during the comment period requesting a copy of this form but received no response at all. So I was unable to comment on any details of this form.
This time around my inquiries with the FELC were eventually directed to Mr. Reeves and I spoke with him on 5 February. He claimed that the form I was requesting was out for review and had not been approved. I explained to him that it had in fact been approved without change by the OMB last October to which he expressed surprise. Mr. Reeves further explained that form 5400.13/5400.16 has been the only form used for initial and renewal applications in the three years he has worked at the FELC.
The Paperwork Reduction Act was intended to reduce the paperwork burden so I am upset that the ATF has a form which does this but refuses for unexplained reasons to use it.
Your assistance in extracting form 5400.14/5400.15 Part III from the ATF would be greatly appreciated.
Thank you
So as you can see the ATF failed to explain why even though this form had been recently approved by the OMB, the ATF was not using it. It appears that the response has been carefully phrased to give the impression that the reason the form isn't available is because it is being revised. Which fails to explain just when this revision began and why it wasn't used prior to that.
Form 5400.13/5400.16 had to be revised as a result of the SEA. This process was completed between the time the law passed and when it took effect in May of 2003. Form 5400.14/5400.15 Part III was not revised at that time.
The ATF appears to be in the habit of playing fast and loose with the truth. They have an excellent example of this in Alberto Gonzales.
I was surprised to find yet another blue envelope in the mail from the ATF. I opened it to find yet another single sheet of paper. This time it was a copy of my permit. In a little known and widely ignored (this is the first time I have received a copy from the ATF) rule, the ATF is supposed to provide you with two copies. See 27 CFR 555.49(b)(4).
The license or permit and one copy will be forwarded to the applicant, except that in the case of a user-limited permit, the original only will be issued.
I thought this years renewal was over but I just received a letter from Senator Cornyn's office. The ATF wrote to him about my letter (see above) concerning the renewal form. The letter is on the letterhead of assistant director of the ATF and has a problem with the facts. I have typed the text (there may be typos) in here and interspersed my comments.
Dear Senator Cornyn,
This is in response to your letter dated February 26, 2007, to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) on behalf of your constituent, Mr. David Schultz. Mr. Schultz has requested assistance in obtaining an ATF From 5400.14/5400.15 Part III, Renewal Application for a Federal Explosives License or Permit. He states that ATF has solicited comments on the renewal form but that the final form has not yet been issued. We apologize for the delay in our reply.
I did indeed state that comments were solicited with respect to an OMB review of the form in accordance with the Paperwork Reduction Act. I didn't say anything about a final form not being issued yet. I pointed out that the ATF has an approved form and wasn't using it.
As you know, ATF is mandated to enforce the provisions of the Federal explosives law. Among other things, the law provides that it is unlawful to receive explosives with first applying for and obtaining a Federal explosives license or permit from ATF. Generally, a license or permit is issued on a 3-year basis and can be renewed prior to expiration. At present, there is no current renewal application form. Therefore, persons applying for licenses and permits as well as renewals must file a completed ATF Form 5400.13/5400.16, Application for Explosive License or Permit. Mr. Schultz's application was received by ATF on May 8, 2007. A Letter of Authorization (LOA) was issued on May 10, 2007, that enabled Mr. Schultz to continue operations while his renewal application was processed. His renewal application was approved and his new permit was issued on June 19, 2007.
All very interesting but beside the point. The issue at hand is that the ATF is not using the correct form.
As Mr. Schultz indicates in his letter to you, on June 21, 2006, ATF solicited comments in the Federal Register about a renewal application form. The comment period was extended to September 21, 2006, and all comments received and the new draft form are currently under review. Notably, persons applying for a Federal Explosives license or renewing a current license must adhere to the same statutory requirements. For example, among other things, all applicants and renewal applicants must have proper explosives storage facilities, and all responsible persons must not be prohibited from possessing explosives. Nonetheless, there may be certain information on a renewal application that can be updated more efficiently than through the initial application. The final renewal application form is still under review and should be approved in the coming year.
Note how he fails to mention that ATF regulations require different forms for initial and renewal applications. Not to mention that regulations require certain information be given to the ATF when the changes occur and not at renewal time.
The notice in the Federal Register indicates that this is an "Extension of a currently approved collection." This implies that it is currently being used and the agency wants to continue using it. The form was approved "without change". More information on this review can be found on the OMB web site. I downloaded the supporting statement submitted by the ATF and converted it to pdf format here. Notice that someone reading this would get the impression that the form was currently in use (it wasn't) and it would continue to be used.
The ATF saved the best for last:
In addition, Mr. Schultz indicates that he wrote to ATF twice during the comment period but received no response. ATF has no record of written comments from Mr. Schultz on this matter.
Both sentences are true but the second one pointedly avoids the issue at hand. I never claimed to have submitted comments. I followed the instructions in the Federal Register notice for getting a copy of the form under review. I did this twice and received nothing.
There aren't too many possible reasons for this. The most obvious being that the ATF did in fact receive my requests for a copy of the form but that they were ignored. Rather than admit that they had subverted the process, they talk around the problem. This is the second way of lying: tell the truth but only part of it.
We hope that you find this information helpful in responding to your constituent. Please let us know if we can be of further assistance.
(signed)
W. Larry Ford
Assistant Director
Public and Governmental Affairs
I guess I should be flattered that I have stirred things up enough that they had to get an Assistant Director at the ATF to hide the truth.
While looking up something unrelated in 2003's NPRM 968 I found a juicy tidbit related to permit renewals.
NPRM 968, page 4411
Section 55.46 is being amended to provide that the Chief, Firearms and Explosives Licensing Center (now known as the 'Chief, National Licensing Center') may, in writing, require the applicant for license or permit renewal to file an original application for license or permit as required by section 55.45. This would be in addition to filing any application for license renewal on ATF F 5400.14 (part III), or application for permit renewal on ATF F 5400.15 (part III). This ensures compliance with existing requirements in part 55 and is consistent with the firearms regulations in part 178 of this chapter with respect to the renewal of Federal firearms licenses.
So someone at the ATF believed that they needed to amend the regulations so that they could require the resubmission of an original application form in addition to the regular renewal form. Since then they have apparently decided that they can do whatever they like without bothering with this pesky notice and comment process.