A federal explosive license or permit (FEL is used interchangeably here) is an essential document for many members of the fireworks industry. Predictably, the federal explosives law provides clear and unambiguous procedures for obtaining a federal explosives license or permit, both for original applicants as well as for the subsequent renewal of an ATF-issued FEL. However, the provisions for original applicants, § 555.45, is markedly distinguishable from its counterpart relating to renewal of an FEL, § 555.46. For purposes of completeness, while a license and permit are treated equally under the provisions, a user-limited permit is not renewable.
Generally speaking, there is now a laundry list of material and information that an original applicant must supply as part of the applicant’s package that is ultimately submitted to the federal licensing center that oversees the process; one item requiring some lead time is the applicant’s submission of a set of fingerprints. For those persons holding valid FEL’s issued prior to May 24, 2003, the majority of the requirements now prevailing were not in existence (making it likely that the ATF’s licensing center does not presently have in its database a full set of fingerprints from every holder of a FEL).
The ATF regulation also provides a disparity in treatment regarding the scope of investigation and due diligence it exercises when vetting a new applicant, as opposed to a renewal applicant. Tellingly, in accordance with § 555.45(c)(3), the licensing center will perform a background check, without limitation. This means that the ATF could conceivably go back in time for a period of years, even decades, in determining whether or not the applicant is qualified to be issued a FEL. In sum, there is no legal or proverbial statute of limitation to apply to original applications submitted pursuant to § 555.45(c).
However, the counterpart provision governing renewal of FEL’s, § 555.46, is completely silent regarding the topic of background checks of any kind, leaving open to suggestion that any background check that may exist by implication comes with a limitations period that is ascertainable. If we accept the fact that renewal of a FEL is neither ministerial nor mechanical, nor automatic, we also can accept the notion that the non-existence of language relating to background checks does not reflexively lead to a conclusion that the licensing bureau is prohibited from performing one. Instead, it only leads one to assume that any investigation to be undertaken by ATF be sensible and limited and interestingly, unlike § 555.46, the sources for these parameters cannot be found by looking only to the language of the statute itself. It is both fair and proper to look outside the statute where, like, it here, it is silent on the topic.
Reference to prevailing statutes and case law indicates that a five-year statute of limitations period applies to enforcement actions; meaning that any violation alleged must occur within five years from the date of the commencement of any enforcement action. By extension, a renewal applicant may find oneself subjected to a background investigation stretching back for up to five years, resulting in a denial to renew. The applicant would like to believe that each renewal resets the time frame in its entirety but, currently, there is nothing in § 555.46 to support this position. In this respect, the 5-year period sits comfortably within the prevailing regulatory structure relating to enforcement actions.
In conclusion, it appears that ATF can deny renewal of an FEL based upon violations or behavior or actions only occurring within five-years from the time of renewal whereas, by distinction, new applicants are subjected to a limitless background investigation, albeit no prior violations should exist under these circumstances. This 5-year legal construct, albeit circumstantial, appears to pass the test of fairness and sensibility, while also remaining consistent with revocation proceedings, to the extent that such proceedings are subject to a five-year statute of limitations period.
