ATF Explosives Rulings and Procedures
Following are digests of ATF determinations regarding explosives matters
which are of special significance to Federal explosives licensees and permittees,
and to ATF Compliance and Law Enforcement personnel. The full text of each
of these determinations can be found in the ATF Cumulative Bulletin (1973-1978),
and is cited by year, ',CB," and page number at the end of each item. On
August 7, 1981, Part 181 of Title 27, CFR was redesignated as Part 55. The
ATF Rulings and Procedures issued prior to August 1981 and still in effect
are presented here with current, Part 55 regulation citations and the current
titles of ATF personnel, where applicable.
Subject Index
(1) 27 CFR 55.41: LICENSES AND PERMITS - GENERAL
Requirements for descriptions of explosives storage facilities.
ATF Proc. 75-4
This Procedure (which was incorporated in Industry Circular 75-10; effective November 1, 1975) revised requirements for descriptions of explosives storage facilities that must be filed by applicants intending to store explosive materials.
The Director, ATF, determined that this additional descriptive information was and is required in order to ensure compliance with the law and regulations. Accordingly, Forms 4705 and 4707 (now ATF F 5400.13/5400.16, "Application For License or Permit") were revised. Following is the text of the Procedure, as amended:
Secs. 3 & 4. Licenses and Permits.
A person intending to engage in business as an importer, manufacturer or dealer in explosive materials, or who is intending to acquire, transport, ship, import or receive explosive materials in interstate or foreign commerce for his own use and not for resale, shall complete ATF F 5400.13/5400.16, "Application For License or Permit," in accordance with the instructions on the form, and forward the form with the license or permit fee to the office specified on the form. If approved, the Chief, Firearms and Explosives Licensing Center will issue a license or permit to the applicant. At the time of renewal of a license or permit, the Chief, Firearms and Explosives Licensing Center may require the filing of a new or amended application, or additional descriptive pages, to be attached to the application upon a determination that the currently approved application is inaccurate or does not fully describe the storage facilities. If the application is denied, the applicant will be advised in writing of the reasons for the denial.
Sec. 5. Storage.
(1) [ADDENDUM] A diagram of the premises, providing much of the required, descriptive information set out above. (Preparation by an engineer is not required.) [75 CB 791]
(2) 27 CFR 55.1 1: MEANING OF TERMS
(Also § 55.206)
An office or repair shop used in connection with the manufacture, etc. of explosive materials is not an "inhabited building."
ATF Rul. 75-20
ATF has held that a building, such as an office or repair shop, which is a part of the premises of an explosives manufacturer and is used in connection with the manufacture, transportation, storage, or use of explosive materials, is not an "inhabited building." § 55.11 of 27 CFR defines inhabited building as "any building regularly occupied in whole or in part as a habitation for human beings, or any church, schoolhouse, railroad station, store, or other structure where people are accustomed to assemble, except any building occupied in connection with the manufacture, transportation, storage, or use of explosive materials."
Regulations in 27 CFR 55.206 and § 55.218 set forth provisions concerning the location of storage facilities and the minimum distances such storage facilities may be located from, among other things, "inhabited buildings."
These provisions are intended to provide protection to persons who inhabit buildings located near premises where explosives are manufactured, stored, etc. However, it is the intent of § 55.1 1 to exempt buildings used by the explosives industry in connection with the manufacture, transportation, storage, or use of explosive materials from the table of distance requirements on "inhabited buildings." [75 CB 64]
(3) 27 CFR 55.207: CONSTRUCTION OF TYPE 1 MAGAZINES
(Also § 55.210)
Certain explosives storage facilities meeting standards of construction prescribed by the Department of Defense Explosives Safety Board for such storage are approved by the Bureau.
ATF Rul. 75-21
ATF has held that explosives storage facilities with smooth-finished concrete floors that were constructed under contract for the use of the Department of Defense (DOD) and that are presently being leased to licensees and permittees for the storage of commercial explosives are considered to be in compliance with the requirements for nonsparking floors, as set forth in 27 CFR 55.207(a)(4), 55.207(b), and § 55.210, for the storage of all types of fully packaged explosives, pyrotechnics and propellants, with the exception of black powder. Any other such magazines which have smooth finished concrete floors and which meet or exceed DOD construction specifications will also be considered to be in compliance with the requirements of Part 55 with respect to nonsparking floors.
It is the responsibility of the licensee or permittee to provide verification that such facilities were manufactured under DOD specifications or that the facilities meet or exceed such specification standards.
If the regional director (compliance) determines that the concrete floors of type 1 or type 4 magazines do not meet the preceding requirements, he will require such floors to be covered with a nonsparking material, such as epoxy paint or mastic. 175 CB 67]
(4) 27 CFR 55.41: LICENSES AND PERMITS - GENERAL
Certain companies that manufacture explosive materials for use in their own operations are required to obtain licenses as manufacturers of explosive materials.
ATF Rul. 75-31
ATF has held that companies, such as public utility companies engaged in line and facility construction, which manufacture explosives on a regular or continual basis are considered to be engaged in the business of manufacturing explosive materials and must be appropriately licensed as required by 18 U.S.C. 842.
The term "manufacturer" is defined in 18 U.S.C. 841(h) as "any person engaged in the business of manufacturing explosive materials for purposes of sale or distribution or for his own use."
Although the term "engaged in the business" is not susceptible to a rigid
definition within 18 U.S.C. § 841-848, it is
interpreted to imply an element of continuity or habitual practice; an element
clearly present in the operations of companies described herein.
Therefore, these companies are considered to be engaged in the business"
and must be licensed as explosives manufacturers. [75 CB 65]
(5) 27 CFR 55.109-IDENTIFICATION OF EXPLOSIVE MATERIALS
Methods of marking containers of explosive materials are prescribed.
ATF Rul. 75-35
ATF has held that any method or combination of methods for affixing the required marks to the immediate container of explosive materials, or outside container used in the packaging thereof, is authorized provided the identifying marks:
Where it is desired to utilize a coding system and to omit printed markings on the container, a letterhead application displaying the coding to be used and the manner of its application shall be filed with and approved by the Director, ATF, prior to the use of the proposed coding. Further, where a manufacturer operates his plant for only one shift during the day, the shift of manufacture need not be shown.
It was found that liquid components of explosive materials stored for a period of time in polyethylene or other soft containers would seep through the container walls, tending to render illegible the inked, identifying marks on the container. A manufacturer's proposal [subsequently approved] of using a system of perforated numbers and code symbols (similar that used on cancelled checks) to mark containers in addition to other identifying marks stamped in ink, was determined to continue to provide the identification required by 27 CFR 55 .109, even if the ink later became illegible. [75 CB 65]
(6) 27 CFR 55.1 1: MEANING OF TERMS - STATE OF RESIDENCE
"State of residence" of business entities who use explosive materials; distribution of explosive materials by licensees to out-of-State business entities other than licensees and permittees; and, distribution to nonresident employees of such entities are discussed.
ATF Rul. 76-4
ATF was asked to interpret the term "State of residence" (in § 55.11) as it:
The Business Entity
If a person is a corporation or other business entity, "State of residence" means the State in which such corporation or other business entity maintains a "place of business." A business entity establishing another "place of business" or "job site" in another State would acquire a "State of residence" in that State as well. This means that a company engaged in construction work would acquire a residence in each State wherein its work is performed. Its place of business in those States would be the job sites at which business is carried on. It would not be essential to a determination of its State of residence that a branch office be maintained in, or administrative work be performed in, the States where job sites are located.
Such a company would not need a permit to acquire explosive materials from a licensee in a State for use at job sites located therein. Form 5400.4, "Explosives Transaction Record," would show the out-of-State address of the business entity as the principal place of business, and the location of the job site as the local place of business.
Nonresident Employees
The purpose of the data requested on Form 5400.4 is to identify the person authorized by the business entity to make the purchase of explosive materials on the entity's behalf and to assure the distributor that such person appears on the required certified list of names of representatives or agents authorized by the business entity to acquire the materials. Regulations (27 CFR 55.105(e)), implementing Title 18, U.S.C. 842(f), in part, provide that each business entity acquiring explosive materials shall furnish the distributing licensed dealer with a current, certified list of the names of representatives or agents authorized to acquire explosive materials on behalf of such business entity. The purpose of the data requested on Form 5400.8, "Explosives Delivery Record," is to identify the employee of the business entity or the employee of a carrier accepting delivery of explosive materials on behalf of the distributes at the distributor's business premises.
Therefore:
(7) 27 CFR 55.126: EXPLOSIVES TRANSACTION RECORD
Under certain conditions, a single Form 5400.4 may be used to cover a series of deliveries.
ATF Rul. 76-10
Under the provisions of 27 CFR 55 .126, a sale or other distribution by a licensee or permittee shall not be made to a nonlicensee or nonpermittee unless the transaction is recorded on a Form 5400.4. Under certain conditions, a single Form 5400.4 may be used to cover a series of deliveries. When an initial sale has been consummated, with partial deliveries to be made in the immediate future, the requirements of § 55.126 will have been satisfied if the following steps are taken:
(8) 27 CFR 55.207: CONSTRUCTION OF TYPE 1 STORAGE FACILITIES
(Also § 55.208)
Alternate construction standards for storage facilities for explosive materials are prescribed.
ATF Rul. 76-18
Section 842(j) of 18 U.S.C. states: "It shall be unlawful for any person to store any explosive material in a manner not in conformity with regulations promulgated by the Secretary. In promulgating such regulations, the Secretary shall take into consideration the class, type, and quantity of explosive materials to be stored, as well as the standards of safety and security recognized in the explosives industry."
The regulations in 27 CFR 55.207 and 55.208 prescribe types of storage facilities for explosive materials and provide (among other things) that such storage facilities shall be bullet-resistant. § 55.201(b) provides that alternate storage facilities may be authorized for the storage of explosive materials when it is shown that such alternate facilities are or will be constructed in a manner substantially equivalent to the standards of construction contained in the applicable regulations.
The term "bullet-resistant" means resistant to penetration of a bullet of 150 grain M2 ball ammunition having a nominal muzzle velocity of 2700 feet per second fired from a .30 caliber rifle from a distance of 100 feet perpendicular to the wall or door.
It has been determined that a wide range of construction criteria meet the bullet-resistant requirements of regulations for construction of storage facilities for explosive materials.
In order to promote standards of safety and security in the storage of explosive materials while allowing the industry a wide latitude in the selection of construction materials, it is held that storage facilities (magazines) that are constructed according to the following minimum specifications are bullet-resistant and meet the requirements of the regulations as set forth in 27 CFR Part 55. (All steel and wood dimensions indicated are actual thicknesses. To meet the concrete block and brick dimensions indicated, the manufacturers' represented thicknesses may be used.)
(9) 27 CFR 55.30: REPORTING THEFT OR LOSS OF EXPLOSIVE MATERIALS
(Also § 55.165)
Reporting theft or loss of explosive materials.
ATF Rul. 77-13
Section 842(k) of 18 U.S.C. makes it unlawful for any person who has knowledge of the theft or loss of any explosive materials from his stock to fail to report such theft or loss within 24 hours of discovery thereof to ATF and to appropriate local authorities. Regulations at 27 CFR 55.30, implementing section 842(k), require that the report of theft or loss be made by telephone and in writing to ATF
The legislative history of Title XI of the Organized Crime Control Act of 1970 (18 U.S.C. Chapter 40) makes clear the Congress believed that total coverage of all stolen explosive materials was necessary for the effective operation of any Federal explosives regulatory statute-because of the special problems presented by such stolen explosive materials and the persons possessing them, The statute and the regulations refer to the reporting of thefts or losses of explosive materials from the "stock" of a person. With reference to that requirement, the House Judiciary Committee report makes it clear that this provision was intended to place an affirmative duty on all possessors of explosive materials to report a theft or loss of such explosive materials. Thus, the reporting requirements were not meant to apply only to thefts or losses from business inventories.
It is, therefore, held that all persons possessing explosive materials who suffer a theft or loss of such materials shall report the theft or loss within 24 hours after the discovery thereof to ATF and to appropriate local authorities. Such persons required to report include (but are not limited to) licensees, permittees, carriers who transport or otherwise possess explosive materials, and users of such materials. Licensees and permittees must make such report by:
All other persons subject to the reporting requirement must report by telephone
and in writing, by letter, to the nearest ATF Office. [177 CB 190]
(10) 27 CFR 55.213: QUANTITY AND STORAGE RESTRICTIONS
(Also § 55.208)
Alternate magazine construction standards for storage of electric blasting caps with other explosive materials are prescribed.
ATF Rul. 77-24
Section 8420) of 18 U.S.C. states: "It shall be unlawful for any person to store any explosive material in a manner not in conformity with regulations promulgated by the Secretary. In promulgating such regulations, the Secretary shall take into consideration the class, type, and quantity of explosive materials to be stored, as well as the standards of safety and security recognized in the explosives industry."
The regulations in 27 CFR 55.213 restrict the storage of blasting caps with other explosive materials. § 55.201 (b) provides that alternate storage magazines may be authorized for the storage of explosive materials when it is shown that such alternate magazines are or will be constructed in a manner substantially equivalent to the standards of construction contained in the applicable regulations.
ATF recognizes that the transportation and storage of explosive materials in the same vehicle along with electric blasting caps is often desired. The Institute of Makers of Explosives established a recommended standard for such transport in their Safety Library Publication No. 22, dated November 5, 1971 [revised January 1985]. This standard prescribes the minimum construction criteria for:
In order to insure standards of safety and security in the storage of explosive materials while allowing the industry a proper latitude in the construction of magazines, it is held that vehicles used for transporting and for storing explosive materials that are constructed in conformity with the standards listed below, and in compliance with all other safety and security provisions contained in Part 55 (e.g., effectively immobilized when unattended) will meet the requirements of ATF regulations. Even though constructed on the same vehicle, each compartment will be considered as a separate magazine. The two magazines on the vehicle will, however, be considered as one magazine when applying the American Table of Distances [see Table at § 55.218].
Construction Standards For Storage of Electric Blasting Caps(Non Mass-Detonating)