Getting Legal Dave Stoddard Pyrotechnics Guild International Permission granted to copy, modify, and distribute these slides and information for any purpose.
What is the ATF? • Bureau of Alcohol, Tobacco, Firearms and Explosives • Federal Agency Responsible for Enforcing Explosives Regulations • ATF has Jurisdiction for the Enforcement of Chapter 40 of the United States Code, as well as for the Safe Explosives Act • Regulations are outlined in 27 CFR, Part 55 – “Commerce in Explosives” (Orange Book)
What Things Do Not RequireAn ATF License? • There are only four types of 1.4 items that do not require an ATF license: • UN 0336 – 1.4G Consumer Fireworks • UN 0337 – 1.4G Sparklers • UN 0431 – 1.4G Propellants (Air Bags) and Smoke • UN 0432 – 1.4S Flares and Signal Devices • Black powder for use in antique firearms that does not exceed 50 pounds in weight. • See ATF 27 CFR 55.141, Subpart H – Exemptions
Who Needs an ATF License? • Hobbyists that build fireworks and transport their fireworks over public roads • Anyone who buys or transports fireworks or explosives across State lines • Anyone engaged in the business of importing, manufacturing, or dealing in fireworks or explosive materials • Consumer fireworks are exempt
Why Have an ATF License? • Allows you to purchase 1.3G (Class B) fireworks, electric matches, and controlled items. • Protects you from political fallout in the event of an accident (accused bomb maker versus hobbyist fireworks builder). • Allows you to purchase certain chemicals and materials in large quantities (like powdered metals and oxidizers). • Provides a certain level of protection against prosecution by the federal government as long as you follow the rules.
Disadvantages of ATF License • Routine inspections by ATF personnel. • Intrusive application process requires fingerprint cards, photographs, and other personal data. • Cost of license application is $200, and a $100 renewal fee every three years. • Detailed record keeping requirements. • Does not eliminate State laws and restrictions. • Mandates conformance with State laws.
Types of ATF Licenses • User Limited – Good for 1 year, can be used up to six times. No intrastate transportation. • User – Buy and use materials. • Dealer – Buy, sell, and use materials. • Importer – Import, buy, sell, and use materials. • Manufacturer – Manufacture, buy, sell, and use materials. • This class will not cover details about dealer and importer licenses.
User Licenses • Type 33: User of High Explosives • Type 34: User of Low Explosives • Type 35: User of Blasting Agents • Type 54: User of Fireworks • User licenses are good for three years, cost $100 to apply, $50 to renew • Allows you to purchase, store, and use materials
Manufacturer Licenses • Type 19: Manufacturer of theatrical flash powder • Type 20: Manufacturer of high explosives • Type 21: Manufacturer of low explosives • Type 22: Manufacturer of blasting agents • Type 50: Manufacturer of fireworks • Manufacturers can buy, sell, make, use and store materials • Manufacturer licenses are good for three years, cost $200 to apply, $100 to renew
What Type of License to GetHigh Explosives Versus Low Explosives • Low explosives include black powder and most fireworks (except salutes, flash powder, whistle powder, and experimental rocket compositions) • Fireworks include low explosives and bulk salutes, but not high explosive powders • High explosives include all explosives (low explosives, fireworks, and high explosives) • The differentiation between different classes of explosives will be eliminated in the licensing process some time in the future.
New License Categories • User Limited • User of Explosives • Dealer of Explosives • Importer of Explosives • Manufacturer of Explosives • Classes of explosives will be eliminated from license categories • Magazine will determine capability
What Type of License to GetManufacturer Versus User License • User license allows you to buy, store, and use materials. • Manufacturer allows you to make, buy, sell, store, and use materials. • Manufacturer provides greater coverage than user license does. • Manufacturer license costs twice as much as user license (and worth it).
Type of License to Apply For • Type 20, Manufacturer of High Explosives, provides the widest range of coverage and offers the greatest amount of flexibility for use, but requires high explosives storage. • Type 50, Manufacturer of Fireworks, allows you to manufacture most types of fireworks and does not require high explosives storage unless you store bulk salutes. • Type 20 provides more coverage than Type 50 license – apply for a Type 20.
Why a High Explosives License? • A Type 50 license, Manufacturer of Fireworks, covers the manufacture of fireworks and bulk salutes, but the manufacture and storage of experimental pyrotechnic compositions is a gray area that is subject to interpretation. • The ATF is classifies flash powder, whistle powder, chlorate-based compounds, and experimental compositions as “high explosives”. • Only a Type 20 license, manufacturer of high explosives, will meet the strictest interpretation of ATF definitions.
Myths About Licenses • Myth 1: It is easier to get a user license than a manufacturer license. • Myth 2: It is easier to get a low explosives license or fireworks license than it is to get a high explosives license. • Myth 3: People with high explosives manufacturing licenses are scrutinized more closely, and inspected more often, than other types of licenses.
Magazines • A magazine is a place where you store fireworks and explosives. • Storage requirements are defined in Subpart K of the ATF Orange Book (Page 39). • There are several types of magazines: • Type 1: Permanent storage for high explosives. • Type 2: Portable storage for high explosives. • Type 3: Day boxes for high explosives. • Type 4: Storage for low explosives and fireworks. • Type 5: Storage for blasting agents (ANFO).
Magazine Requirements • For a high explosives license, you must have high explosives storage. You can also have additional (separate) low explosives storage. • Fireworks, including salutes that are mixed 50/50 with other shells, are considered low explosives. Otherwise, bulk salutes are considered high explosives. • Low explosives can be stored in a high explosives magazine, but high explosives cannot be stored in a low explosives magazine.
Magazine Requirements (cont) • The ATF provides a set of tables of distances based on the class of explosives the magazine will store and the quantity of explosives in pounds. • Table 55.218 shows distance requirements for high explosives magazines. • Table 55.219 shows distance requirements for low explosives magazines. • Table 55.224 shows distance requirements for display fireworks magazines.
Magazine Alternatives • You can own your own magazine. It will need to meet ATF regulations for distance and construction. It may also have to meet State requirements, licensing, zoning and insurance requirements. Contact your State Fire Marshal’s office to learn more. • You can have “contingency storage” in someone else’s magazine. To have contingency storage, you need a contingency storage letter from the owner of the magazine.
Fireworks Clubs • Most fireworks clubs that have legal manufacturing areas also provide contingency storage for club members. • If you use contingency storage in club magazines, any material you store becomes the club’s property. • Support your local club.
License Process • Fill out and submit ATF application Form 5400.13 / 5400.16 with $200 fee. • Complete four sets of fingerprint cards through your State police ($20 in MD). • Submit a 2” x 2” passport photo with the ATF application ($6.00 at FedEx/Kinko’s). • Submit a site plan and description of the magazine storage area. • Provide a contingency storage letter from the owner of the magazine if you use contingency storage. • Meet background check requirements. • Pass the ATF interview(s) and justify the reason for the license application.
License Requirements • Must be at least 21 years of age • Cannot be a fugitive from justice • Cannot be an unlawful user of controlled dangerous substances (drugs) • Cannot be under indictment for a felony • Must be a citizen of the United States • Cannot be convicted of a felony • Cannot be adjudicated mentally defective • Cannot have a dishonorable discharge • Must not have renounced US citizenship
If You Do Not Meet Requirements • You can appeal for relief from disabilities using Form 5400.29, “Application for Restoration of Explosives Privileges”. • Requires additional documentation to be submitted. • Need a Law Enforcement Certification Letter from State Police. • Takes at least 120 days to complete.
Stand Your Ground • ATF licenses are issued on a “shall issue” basis. Unless they can find a valid reason to not issue a license, they MUST issue a license to you. • “Relief from Disability” is discretionary – if you have a felony conviction, you are at the mercy of the ATF to be validated. • They may try to talk you out of getting a license, or lower the classification of your license. Stand your ground.
Applying for a License • Call the ATF National Explosives Licensing Center (NELC) at 404-417-2750 and ask them to send your fingerprint cards and ATF Form 5400.13/5400.16 • Secure proper storage for your license category, and a contingency storage letter if required. • Acquire a 2” x 2” color passport photo for your application. • Obtain a plat plan of the magazine layout.
Completing Form 5400.13 • Item 8: Answer “No” • Item 9: Check “Individually Owned” • Item 10: Circle “20” in the Type Code column for Manufacturer of High Explosives • Item 11: Answer “Fireworks, stars, rockets, black powder, flash powder, whistle powder, and experimental pyrotechnic compositions”
Completing Form 5400.13 (Cont) • Item 12: Answer “No” if you do not intend to manufacture in your location. If you live in a State (like Maryland) where fireworks manufacturing is illegal, you must answer “No” to this question. • Item 13: Put your name and address, and anyone else in your family that is at least 21 years of age.
Completing Form 5400.13 (Cont) • Items 14 and 15: These answers must be “No”, otherwise you must submit Form 5400.29 and apply for relief from disability. • Item 16: List your “Hours of Operation”. ATF uses this information to schedule records and compliance inspections. • Item 17: Check “A Residence” if you are using your home address. • Items 19, 20, and 21: Leave blank.
Completing Form 5400.13 (Cont) • Item 22a: Answer “Yes” and write “contingency storage” in the box if you will be using contingency storage. • Item 22b: Enter the number of magazines. • Sign, date, and mail the completed form.
Waiting for Approval • It will take one to three months until you hear anything back from the ATF. Expect up to three phone interviews and (possibly) one personal interview. • Be prepared for your ATF interviews by carrying your reasons and justification for your license with you. • It is not unusual for the ATF to try to talk you out of getting a license, or to try to talk you into downgrading your license to a lower level – be firm!
Reason and Justification • You want to be able to purchase and shoot Class B fireworks at fireworks club events. • You want to be able to make fireworks and pyrotechnic compositions at club events. • You want to be able to purchase chemicals and materials that are restricted for sale to Type 20 license holders (like flash grade aluminum powder). • You want to be able to transport fireworks to display events and to the PGI convention for fireworks competitions.
ATF Application Status • If you want to know the status of your ATF license application, call the National Explosives Licensing Center at: 404-417-2750
When Your License Arrives • Your ATF license will be printed on pink paper. Do not sign it – instead, make 100 copies of it on white paper (most copiers will not pick up the red color of the original). Keep the original in a folder. • You will need to provide a signed copy of your license each time you make a purchase. • Keep a folder of all of your ATF forms, paper work, correspondence, and transaction records.
Keeping Records • You must keep records of everything you buy, build, shoot, dispose of, and store. • You have 24 hours to update your records if a record keeping event has occurred. • If you manufacture something, you must mark it with a unique code and track it in your records (use the date and a sequence number for this). • If you build something and shoot it the same day, you do not need to record it, but recording it shows the ATF you are using the license.
What to Record • Record of Manufacture • Record of Receipt or Purchase • Record of Transfer of Sale • Record of Use • Record of Magazine Inventory • Record of Magazine Inspection at ATF compliance inspections All of these items, with the exception of Record of Inspection, are defined in ATF Orange Book, Subpart G – Records and Reports
Record of Manufacture • Must capture Manufacturer’s ID, Date, Quantity and Unit of measurement, Description, Size, Location of Manufacture • Sequence numbers for each item allow you to refer to items in other section of your records • Add a reference column for tracking use or storage, and a comments column for misc. • ATF 55.123(d)
Record of Receipt or Purchase • Must capture Date, Manufacturer’s Name, Manufacturer’s ID, Quantity and Unit of Measure, Description, Size, Name of Supplier, Supplier Address, ATF License Number, and Phone Number • Adding a sequence number for reference purposes can help tracking • ATF 55.125(b)
Record of Transfer or Sale • Must capture Date, Manufacturer’s ID (mark of identification), Quantity and Unit of Measure, Description, Size, Recipient Name, ATF License Number • Adding a sequence number for reference purposes can help tracking • ATF 55.123(c)
Record of Use • Must capture Manufacturer’s ID (mark of identification), Date, Quantity and Unit of Measure, Description, and Size • Sequence Number, Location of Use, a Reference Column, and Comments are a recommended addition • ATF 55.123(b)
Record of Magazine Inventory • Must capture Date, Quantity and Unit of Measure, Description, Manufacturer Name, Manufacturer ID, and Size • Magazine additions must be listed separately and include the source of the material or reference number. • Magazine subtractions must be listed separately and include the destination, use, or reference number. • Current magazine inventory must be maintained separately and be absolutely accurate. • This is done using three separate lists. • ATF 55.123(a)
Record of Magazine Inspectionand ATF Contact • Record the Sequence Number, Date, Inspection Type, ATF Employee(s), and any Comments. • Record personal magazine inspections (seven day spot checks, if applicable). • Record ATF visits, phone calls, license renewals – essentially all contact with the ATF. • This is an optional list to maintain, but equally important.
Electronic Record Keeping • If you use a computer to record your ATF records, you must print out a paper copy every time you make a change to your records. • You can apply for a variance to maintain your records on a computer. See sample letter. • I have an approved spreadsheet that you can use for computer-based records.
Manufacturing • Everything you make is 1.3G Class B fireworks (even sparklers). • In order to be 1.4G Class C, you must join the American Pyrotechnics Association (APA) to acquire DOT EX numbers, and you may need to submit to testing by the AFSL. In short, it is impractical (if not impossible) for a hobbyist to build Class C materials. • All 1.3G Class B items must be stored in an ATF approved magazine. No exceptions.
Manufacturing (cont) • You do not have to store items that are in the process of manufacturing – stars and shells that are drying, shell hemispheres in the process of loading, and elaborate fusing and tying are examples. • As soon as the items are finished, they must be stored in an approved magazine. This includes stars, inserts, black powder, and finished chemical compositions.
Manufacturing (cont) • You may not mix more than 10 pounds of flash powder at one time. • You may not have more than 500 pounds of pyrotechnic composition in a building at one time. • Items in the process of manufacture must be locked up and kept safe from outsiders. • ATF 55.221
Missing and Stolen Fireworks • If you are missing items, you must notify the ATF within 24 hours. • It is a felony not to notify the ATF of missing or stolen explosives. • If you have a magazine, you must have someone physically inspect the magazine once every seven days. You do not have to open the magazine or inspect its contents.
Getting Inspected • Most inspections are surprise visits. • Frequency can vary from six weeks to three years between visits. • Most inspections are performed by ATF Investigators, not ATF Special Agents. • You will need to produce your ATF License, your Driver’s License, your Magazine Records, and a folder of all of your ATF correspondence.
Passing Inspection • The ATF Investigator will want to know how you are using your license. Be sure to tell them if you have built anything, and how you used it after you built it. • The ATF Investigator may ask to inventory your magazine if you own one. • The ATF Investigator will carefully examine your records. They must be perfect.
Agents Versus Investigators • ATF Special Agents are criminal law enforcement officials, while ATF Investigators are compliance officers. • You must cooperate with a routine inspection. You do not have to cooperate with a criminal investigation. • In some cases, a Special Agent may be assigned to perform an inspection. • Always ask to see an ATF inspectors badge. Note if the person visiting you is an inspector or a special agent. • If you are inspected by an agent, you must ask if you are under investigation. • If you ask, they have to tell you.
Handling Investigations (p.1) • If you are being investigated, don't say anything and call an attorney right away. The less you say, the better off you are. • If you say anything at all, expect it to be written down and filed in court papers, whether it is you or someone else they are investigating. • Nothing you say is confidential, even if they promise you it will be held in the strictest confidence. • They have a right to ask to see your identification, your ATF permit, your inventory records, and your magazine – nothing else.