Subject: ATF Questions & Answers
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Date: Sun, 14 Aug 2005 21:14:09 -0400

Questions and Answers

18 U.S.C. Chapter 40 and 27 CFR Part 55

Introduction

The following Questions and Answers are intended to aid you in gaining a
better understanding of: 18 U.S.C.
Chapter 40-importation, Manufacture, Distribution and Storage of Explosive
Materials ... and of the implementing regulations issued within:
27 CFR Part
55 - Commerce in Explosives.

Although the listing is by no means all-inclusive, it does contain a
selection of those Questions that ATF receives most often about explosives. A
Table of Contents reflects the broad categories into which the Questions have
been grouped, and a Subject Index has been included for your convenience.

These Questions and Answers apply only to Federal law and regulations. The
States and their local jurisdictions have, in many cases, enacted their own
requirements relating to explosives.

Public Law 93-639, approved January 4, 1975, amended the language contained
in 18 U.S.C. § 845(a)(5) which had excepted any "black powder in
quantities not to exceed five pounds", from the law. This amendment:

Removed Federal controls over commercially manufactured black powder in
quantities of 50 pounds or less (and other items specified therein) intended
to be used solely for sporting, recreational, or cultural purposes in antique
firearms or antique devices, thereby removing black powder acquired under this
exemption from all Federal regulations under Part 55; and
Extended the
Federal licensing provisions of 18
U.S.C. § 843 to include any person selling or distributing black powder
regardless of quantity.

Discussion

The exemption contained in §
845(a)(5) applies to most retail sales of black powder. Licensees have the
obligation in conducting these sales to establish to their own satisfaction that
persons wanting to acquire black powder under the exemption intend to use the
powder solely for exempted sporting, recreational, or cultural purposes.
Transaction records are required for nonexempt sales. For example, sales of
black powder to nonlicensees/nonpermittees in quantities exceeding 50 pounds, or
in any quantity when not intended for use as exempted by the law, require the
completion of ATF Form 5400.4, Explosives Transaction Record (§ 55.126). Other requirements in 27 CFR Part 55 include:

Storage of black powder by licensees in accordance with Subpart K (§ 55.201, ff.); and,

Entries for black powder in the daily summary of magazine transactions (§ 55.127).

Additionally ...
Compliance with Federal law and regulations in no way
exempts persons from compliance with State and local requirements.

[Under the exemption a nonlicensee/nonpermittee may import commercially
manufactured black powder in quantity not to exceed 50 pounds (§ 55.108(b)). There is no ATF form to deliver to customs and an
individual importing under the exemption has to comply with customs procedure at
the port of entry.]

Table of Contents

General

Licenses
& Permits

Recordkeeping

Storage

Fireworks

General Questions

1. Who is affected by the Federal explosives law?

The law affects all persons who import, manufacture, deal in, purchase, use
or store explosive materials. It also affects those who ship, transport, or
receive explosive materials in interstate commerce. See Question 20 for State
requirements. [Also, see § 55.141 for exemptions.]

2. To whom is the distribution of explosive
materials by licensees prohibited?

A. Prohibited Persons: A licensee shall not knowingly distribute any
explosive materials to any person who:

(1) Is under 21 years of age;
(2) Has been convicted in any court of a
crime punishable by imprisonment for a term exceeding one year;
(3) Is
under indictment for a crime punishable by imprisonment for a term exceeding
one year;
(4) Is a fugitive from justice;
(5) Is an unlawful user of
or addicted to any controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)); or
(6) Has been adjudicated a
mental defective. [18
U.S.C. 842(d)]

B. Other Unlawful Distributions: A licensee shall not knowingly distribute
any explosive materials to any person who:

(1) The licensee knows or has reason to believe does not reside in the
State in which the licensee's place of business is located (unless a
"contiguous State" provision applies. [See Question
# 4.]) [18
U.S.C. 842(b)(3)];
(2) Is in any State where the purchase, possession,
or use of explosive materials would be in violation of any State law or any
published ordinance applicable at the place of distribution [18
U.S.C. 842(e)];
(3) The licensee has reason to believe intends to
transport the explosive materials into a State where the purchase, possession,
or use of explosive materials is prohibited or which does not permit its
residents to transport or ship explosive materials into the State or to
receive explosive materials in the State [18
U.S.C. 842(c)]; Or,
(4) The licensee has reasonable cause to believe
intends to use the explosive materials for other than a lawful purpose. [§
55.106]

3. Does the law prevent some persons from dealing in
explosives?

Yes. The same classes of persons listed in Answer A to Question
#2 may not obtain a Federal explosives license. In addition, prospective
licensees must meet the other requirements set forth in §
55.49. [See Question
19.]

4. How does the law affect your dispositions to
persons who do not have a license or permit?

A person who has not acquired a permit from the Federal Government may, if
not barred as discussed in Questions # 2 and 3, purchase explosives only in the
State in which he resides. There are two exceptions:

(1) Interstate purchases without permits are allowed if the purchaser's
State of residence has passed specific legislation allowing its citizens to
transport into, or receive in, that State explosive materials purchased in a
bordering, or "contiguous," State; and
(2) No form is required for the
purchase of up to 50 pounds of black powder for sporting, recreational, or
cultural purposes in antique firearms or antique devices. [§ 55.105]

5. What States allow their citizens to purchase
explosive materials in bordering States?

Please contact your State Attorney General or State Fire Marshal, whichever
is appropriate, for a definitive answer. States of Delaware, Kentucky, Vermont,
Washington, and Wyoming are understood to allow such purchases for black powder,
only.

6. When a person purchases explosives, does he have to sign anything?

Yes. ATF Form 5400.4 will be executed by the buyer for purchases of high and
low explosives, and blasting agents. A Federal explosives licensee or permittee
who purchases explosive materials is not required to complete Form 5400.4. [§ 55.126].

7. Does Federal law and regulations provide penalties for purchasers
who give false information to a licensee at the time of purchase?

Yes. The penalty for providing false information or misrepresented
identification is a maximum 10 years' imprisonment and/or a $10,000 fine. [§ 55.162]

8. When a person purchases explosive materials, is the Federal
Government notified?

No. The executed Form 5400.4 remains on the dealer's premises. [§ 55.126]

9. Are thefts of explosives covered by the law?

Yes. Any person discovering a theft or loss of explosive materials from stock
must, report it to ATF, and to the appropriate local authority within 24 hours.
Also, it is unlawful to receive, conceal, transport, ship, store, barter, sell,
or dispose of any explosive materials knowing or having reasonable cause to
believe that such explosive materials were stolen.

10. Will anyone investigate accidents involving explosives?

ATF is authorized to inspect the site of any accident or fire where there is
reason to believe that explosive materials were involved. Other Federal
agencies, or State or Local agencies, might also investigate such incidents,
depending on the circumstances. [§
55.31]

11.

12.

13. Is the rocket propellant in model rocket kits considered to be
explosive?

No. [§
55.141]

14. Does ATF have any regulations governing the actual
transportation of explosives?

No. This authority is vested in the Department of Transportation [§
55.141]

15. What is the Explosives list?

The Explosives List is a comprehensive, but not all inclusive, listing
of the more common explosive materials that have been determined to be within
the coverage of the regulation. The list is published annually by the Director,
ATF. [§
55.23]

Licenses & Permits

16.

17

18. May Black Powder be sold without a license?

No. Anyone who sells black powder, regardless of the quantity, must be
licensed as an explosives dealer. [§
55.41]

19. How Would a person qualify for a Federal
license or permit?

A person must be :

(1) 21 years of age or over

(2) must not be within a prohibited category (see question 2)

(3)must not have willfully violated any of the ACT or regulations

(4)Has premises in the State from which he intends to conduct business or
operations;
(5) Has storage for the class (as described in § 55.202) of explosive materials described on the application,
unless he establishes that the business or operations to be conducted will not
require the storage of explosive materials; and
(6) Is familiar with and
understands all published State laws and local ordinances relating to explosive
materials for the location in which he intends to do business. [§ 55.49] ATF Form 5400.13/5400.16 must be filed to obtain a license
or permit. [§ 55.45]

20. Does a Federal license or permit exempt the holder from State or
local requirements?

No. A license or permit confers no right or privilege to conduct business or
operations, including storage, contrary to State or other law. [§ 55.62] Where a situation arises that State or local requirements
are more stringent than the Federal, the more stringent requirement must be
followed.

21. For what period of time are licenses and
permits valid?

_ An original license or permit is issued for a period of one year.
_ A
renewal license or permit is issued for a period of 3 years.

However:
_ A manufacturer-limited license is issued for a period of 30
days.
_ A user-limited permit (ATF Form 5400.6) and a user-limited special
fireworks permit (ATF Form 5400.21) are valid only for a single purchase
transaction. [§ 55.51]

22. Can a license or permit be revoked?

Yes. The regional director (compliance) may revoke any license or permit if
the holder has violated any provisions of the law or regulations. [§ 55.71, et seq.]

23. What are the fees for licenses and permits?

A. Original License Fees Are:

Manufacturer-$50

Manufacturer-Limited (nonrenewable)-$5

Importer-$50

Dealer-$20

B. Original Permit Fees Are:

User-$20

User-Limited (nonrenewable)-$2

C. Renewal License and Permit Fees:

One-half the original fees; good for a 3-year period. Also see Question
# 21 regarding the duration of licenses and permits. [§ 55.42, 55.43]

24. Will the Government investigate an applicant for a license or
permit?

ATF may investigate any applicant, and inspect all places of storage before
issuing a license or permit. [§ 55.49]

25. What may a licensed dealer do?

A licensed dealer may engage in the business of distributing explosive
materials at wholesale or retail. [§ 55.11: Definition of 'dealer'.]

26. What may a licensed importer do?

A licensed importer may engage in the business of importing or bringing
explosive materials into the United States for sale or distribution. [§ 55.11: Definition of 'importer'] It is not necessary for a
licensed importer to also obtain a dealer's license in order to engage in
business on his licensed premises as a dealer in explosive materials. [§ 55.41]

27. How may I import explosives?

Any licensed importer or permittee may import explosives by providing the
Customs Service a copy of the license or permit. [§ 55.41; 55.108]
Note, however, that in the case of propellant powder
or other components of small arms ammunition, an approved ATF Form 6 must be
provided to the Customs Service. [27 CFR § 178.113] Also, see Question 56.

28. What may a licensed manufacturer do?

Licensed manufacturers may engage in the business of manufacturing explosive
materials for purposes of sale or distribution, or for their own use; BUT, a
licensed manufacturer-limited may manufacture explosive materials for his own
use, only.
[§ 55.11 ] It is not necessary for a licensed manufacturer to also
obtain a dealer's license in order to engage in business on his licensed
premises as a dealer in explosive materials. [§ 55.41 ]

29. Is a separate license required for each location where business is
conducted?

Yes. A separate license is required for each location where business is
conducted. However, a separate license is not required for:

(1) Facilities used only for the storage of explosive materials; and,

(2) A location used solely for the storage of records relating to the
business. [§ 55.411

30. Must a person who engages in the business of both manufacturing and
importing at the same location have both licenses?

Yes. The licenses for manufacturing and importing allow a person to do
separate and distinct things, and a separate license is required for each
activity. However, a manufacturer or an importer does not need a separate
dealer's license in order to also distribute explosive materials from his
licensed premises. [§ 55.41]

31. Does a licensed manufacturer need a separate license for his own
on-site manufacturing?

No. As long as the on-site manufacturing takes place in the ATF Region in
which the manufacturer's license is held. [§ 55.41]

32. Are companies having headquarters in one State but doing business
in another State required to have a permit in order to acquire explosive
materials in the latter State?

No. Companies engaged in business within a State acquire residency in that
State by virtue of the work being performed (but check out the State and local
requirements). Explosives purchases made by these companies in the State where
work is being performed are considered by ATF to have been made within their
State of residence; therefore, no permit is required. [ATF Ruling 76-4]

33. Does a licensed dealer need a permit to use explosives outside the
State in which his business premises is located?

No. The dealer, by virtue of his license, is authorized to acquire and to
transport explosives in interstate commerce. [§ 55.41]

34. How does the truck driver for an explosives licensee/permittee
qualify to purchase explosives for his employer?

The driver must be on the current certified list of representatives or agents
authorized to acquire explosives on behalf of that employer. [§ 55.105]

35. When an explosives licensee/permittee sends his truck driver to the
distributor's premises for explosives which have been purchased by the
licensee/permittee, will the driver be required to sign any forms?

The driver will be required to identify himself and to complete and sign
Section A of Form 5400.8. [§ 55.103]

36. Will a licensee or permittee be notified in advance when his
license or permit needs to be renewed?

Yes. Prior to expiration of the license or permit, a licensee or permittee
will be notified by way of ATF Form 5400.14/5400.15, Part III, "Renewal of
Explosives License or Permit," an application form which must be completed and
timely filed in order to effect renewal. [§ 55.46]

37. 1 have timely filed my application for renewal but I have not
received my renewed license or permit. May I continue in business? If so, how
long?

Yes. You may continue to operate pursuant to your current license or permit
until the application for renewal is acted upon. 118 U.S.C. 558]

38. When may sales of explosives by licensed dealers be made to
residents of adjoining States?

Sales may be made legally to a resident of a bordering State only if that
State has enacted specific legislation allowing its residents to purchase
explosive materials in a bordering State. (Also, refer to Question
# 5) [§ 55.26, § 55.105]

Recordkeeping

39. Does a person who obtains a license or permit have to keep records
of explosive materials transactions?

Yes. A licensee or permittee must keep records of all acquisitions and
dispositions of explosive materials. [§ 55.1071

40. How does one account for explosive materials in his
records?

If acquisitions are recorded by weight, then disbursements must also be
recorded by weight. If acquisitions are recorded by physical count, then
disbursements must also be recorded by physical count.

41. Must a licensee or permittee maintain a daily summary of magazine
transactions?

Yes. After the initial inventory required by regulations has been taken, the
inventory shall be entered in a record of daily transactions. At the close of
business each day, explosives shall be recorded by class, in accordance with the
three classes set forth in § 55.202, as to the total quantity received in and
removed from each magazine during the day and as to totals remaining on hand at
the end of each day. [§ 55-127]

42. Must I keep my explosives records on the site of the magazine to
which these records pertain?

No. A licensee or permittee proprietor of an approved explosives storage
facility may keep the records required by § 55.127 at a centrally located area
on the premises, provided a separate record of daily transactions for each
magazine is maintained.

43. When must a report be made of a shortage or theft of explosive
materials?

Any discrepancy which might indicate a theft or loss shall, within 24 hours,
be reported by telephone to ATF (toll free: 800-424-9555). Licensees and
permittees must confirm the report by filing a completed Form 5400.5 with the
nearest ATF District Office. All other persons must confirm the report by letter
to the nearest ATF Office. A report must also be made to local authorities. [§
55.30, 55.1651

44. Where may I obtain additional copies of ATF Form 5400.4?

Requests for forms should be mailed to the ATF Distribution Center, 7943
Angus Court, Springfield, Virginia 22153. They are available at no charge.

[§ 55.21(c)]

45. What forms will the buyer of black powder have to sign at the time
of purchase?

If 50 pounds or less is being bought, intended to be used solely for
sporting, recreational, or cultural purposes in antique firearms or antique
devices, no form is required.
If black powder is being bought for any other
purpose (regardless of quantity), ATF Form 5400.4 shall be signed by the buyer.

46. Is there a requirement for an annual inventory?

An inventory is required to be taken at least once a year. The inventory will
be taken by type (blasting caps, dynamite, etc.) location and quantity. [§
55.122-55.125]

Storage

47. Who must meet storage requirements?

All persons who store explosive material shall store them in conformity with
the provision of Subpart K of the regulations. [§ 55.29, 55.164, 55.201]

48. What are the classes of explosives for storage purposes?

There are three categories of explosives by U.S. Department of Transportation
regulations in 49 CFR Part 173, except for bulk salutes.)

(1) High Explosives. (For example, dynamite.)
(2) Low Explosives. (For
example, black powder.)
(3) Blasting agents. (For example, ammonium
nitrate-fuel oil and certain water gels.) [§ 55.202]

49. May a person store explosives in a residence or dwelling?

No. A person may not store explosive materials in a residence or dwelling.
Under certain conditions, storage facilities may be located in a warehouse or in
a wholesale or retail establishment, the maximum allowable quantity being 50
pounds. [§ 55.208(b), 55.21 0(b), 55.21 1 (b)]

50. What is the "American Table of Distances?"

This Table lists the minimum acceptable distances separating high explosives
storage facilities from inhabited buildings, passenger railroads, public
highways, and other explosives storage facilities. This Table is seen in §
55.218 of the regulations.

51. When low and high explosives are stored together, how is the
distance determined to meet table of distance requirements?

The total weight is considered to be high explosives. The table in § 55.218
would apply.

52. Is it necessary to inspect one's storage facilities on a regular
basis?

Yes. Any person storing explosives must inspect his storage facilities at
intervals not greater than seven days to determine whether the contents are
intact or if theft or unauthorized entry has occurred. [§ 55 .204]

53. What are the requirements for relocating an approved storage
facility or making changes or additions to the same?

Notification of ATF is usually required. See § 55.63 for details.

54. Is any type of black powder fuse exempt from storage requirements?

Yes, 3/32-inch and other external burning pyrotechnic hobby fuses are exempt
from the explosives law and regulations. [§ 55.11: Definition of 'ammunition'; §
55.141]

55. With the exception Of 3/62-inch pyrotechnic safety fuse for use in
small arms, must black powder fuses generally be stored in approved storage
facilities?

Yes. Igniter fuses, time fuses, blasting fuses, safety fuses, or other black
powder fuses by what ever name known, designed for use with high explosives in
blasting operations, must be stored in approved storage facilities. [§ 55.11:
Definition of 'ammunition'; § 55.182]

59. Are display fireworks considered to be explosives?

Yes. Display fireworks contain chemical mixtures which are classified as
explosive materials in the Explosives List compiled by the Director, ATF. These
fireworks fall within the category of low explosives [§ 55.202(b)), and are
regulated in the same manner as are other low explosives. The Department of
Transportation (DOT) classifies display fireworks as Class B explosives in 49
CFR 173-88(d).

56. Is smokeless powder for use in small arms ammunition subject to
storage requirements?

No. Smokeless powder for use in small arms ammunition is exempt from this
Part (27 CFR Part 55). However, smokeless powder intended for this purpose is
subject to control under 27 CFR Part 178, "Commerce in Firearms and Ammunition,"
as a component of ammunition. [§ 55.141; § 178.11: Definition of 'ammunition']

57. My office building, in which several company employees work during
the day in connection with my explosives business, is located in the general
area of my explosive storage facility. Do the regulations and the Table of
Distances apply to this office building as an inhabited building?

No. A building, such as an office building or repair shop, which is part of
the premises of an explosives licensee or permittee and is used in connection
with the manufacture, transportation, storage, or use of explosive materials is
not an "inhabited building." [§ 55.11: Definition of 'inhabited building']

58. I bought 12 sticks of dynamite to blast stumps on my property. I
have four sticks left over. May I give them to my brother, who does not have a
Federal explosives license or permit?

You may give them to your brother only if he resides in the same State in
which you reside. If either you or your brother store the dynamite, storage must
be in conformity with Federal regulations. [See Question 47.]

Fireworks

60. What fireworks are exempted from regulation?

Common fireworks which are classified by the Department of Transportation
(DOT) as Class C explosives are exempt from regulation. Common fireworks are
generally small, visible- effects fireworks, but also include small firecrackers
less than 11/2-inch in length and 1/4-inch in diameter with a pyrotechnic charge
of less than two grains. A list of common fireworks is contained in DOT
regulations, 49 CFR § 173.100(r).

61. Is a license required to manufacture fireworks?

No. A manufacturer of fireworks needs to have a license only if he
manufactures fireworks ingredients which constitute explosive materials. (Also
see Question # 63.)

62. Are certain fireworks subject to Federal storage regulations?

Yes. All special or display fireworks which are defined by the Department of
Transportation (DOT) as Class B explosives in 49 CFR 173.88(d) are considered to
be low explosives and must be stored in type 4 storage facilities.
This
Class includes all fireworks which are designed to produce an audible effect and
contain a pyrotechnic charge in excess of two grains.
Items such as cherry
bombs, silver salutes, and M-80's are illegal fireworks banned from interstate
commerce. (Exception-use by Government Agencies)

63. Would a manufacturer of common fireworks, which are exempt from
regulation, need a permit in order to acquire explosive ingredients for
fireworks he manufactures?

Yes. If he acquires such ingredients in interstate or foreign commerce.

64. Although a manufacturer of display fireworks has no manufacturer's
license because he does not manufacture explosive ingredients for such
fireworks, does he need a license to deal in display fireworks?

Yes, he would need a license to deal in display fireworks.