Getting Legal Dave Stoddard Pyrotechnics Guild International Permission

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 Require An ATF License? • There are only four types of 1. 4 items that do not require an ATF license: – – UN 0336 – 1. 4 G Consumer Fireworks UN 0337 – 1. 4 G Sparklers UN 0431 – 1. 4 G Propellants (Air Bags) and Smoke UN 0432 – 1. 4 S 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. 3 G (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 Get High 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 Get Manufacturer 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 Fed. Ex/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.

The Application as of Feb 2016 The following slides are intended to show what was filled in for a single person who only wanted to buy, transport, and detonate 1. 3 g class fireworks for non-commercial / private purposes. There is no inferred business affiliation and the person is utilizing contingency storage provided by a fireworks wholesaler.

Color Coding The following colors have been used to assist in understanding parts of the form. YELLOW = Required LT BLUE = Optional / As Needed Certain sections that are highlighted in YELLOW were the selection of the person filling out this particular example, such as their method of payment, dates, etc. It should be relatively obvious the expectation of most of these sections.

Social Security Number is listed as optional, but submitter felt including it was best practice. - The 2 x 2 photograph to be discussed later in this presentation. - Submitter recommends including at least a phone number and email address. Item 9) “Individually Owned” = no business, individual only Item 10) Submitter opted for personal check as payment type. You can choose another and fill out the respective sections. Total application fee is determined by the choice(s) made on Page 3, Section 12. Per previous slide, the submitter is only submitting for a license for 1. 3 g fireworks.

Like previous page, Section C states SSN is optional. Submitter chose to supply it. Section D does not infer that an email address is optional, hence the inclusion. Be sure to check a single box in both section J’s If you wish to have friends or family on your license, you can include their information in the subsequent row(s).

It is recommended that you include “Black Powder” along with “Fireworks”. For the sake of this presentation, the differences in black powder will not be covered, but there may be a time that you wish to purchase certain types of black powder that currently require this type of license.

If you are in a state in which you need a license to detonate fireworks, for Item 13, you’ll choose YES and supply your respective info. Otherwise, choose NO. The “Hours of Operation” are basically a set of suggested times for the BATFE agent to have a good chance of reaching you for setting up your initial interview and/or on-site visit. You’ll want to be sure that you also select YES for Items 19 & 20 and note it is for PGI Conventions. Expecting that you may transport 1. 3 g product to a non-commercial gathering is reason enough to recommend selecting “YES”. Haz. Mat and CDL considerations will be discussed later in this presentation.

Item 21) If you are currently licensed to sell black powder and/or firearms, you would choose “YES”. Item 22 a/b) As noted earlier, Submitter is using Contingency Storage from a fireworks wholesale company. So in this case, the facilities meet the requirements and the submitter is only claiming (1) single magazine.

The 2” x 2” headshot If you are comfortable using photo editors and have glossy photo paper at home, you can create your own headshot without much effort. Although for most people, spending $5 -$15 bucks at a local place that does Passport photos will be worth the hassle of a DIY Headshot. 1) Find a solid-color wall, preferably white, or backdrop without much pattern. Even hanging a light-colored sheet would suffice. 2) Wear a solid, darker color T-shirt that will contrast with the background. 3) Have someone take a picture of you or simply take a “Selfie” 4) If you had a patterned background, you’ll need to remove the background pattern from the picture. 5) Crop the picture to 2” x 2”. Do you best to ensure that your face is mostly centered and takes up at least 1. 25” of height. 6) Print the picture on glossy paper 7) Cut out the 2 x 2 square. Done!

The 2” x 2” headshot In the picture below, submitter took a “Selfie” in front of closet doors. The bright white doors offset enough contrast from skin tones and shirt color to easily remove them from the picture. Then it was just a matter of cropping it to 2” x 2” and ensuring the face, from chin to forehead, measured at least 1. 25” in height. Picture was then printed on glossy paper and attached to the submission form.

The FD-258 Fingerprint Card This is typically provided to you for a small fee from your local police department. Ensure that you fill out all the required areas with the same information used on your BATFE submission. Most jurisdictions will do the fingerprinting first and allow you to fill out the rest of the card on your own time. As noted previously, the light blue highlighted sections may or may not apply to you.

Contingency Storage Most establishments that are able to provide contingency storage are also able to supply you with the necessary paperwork to submit with your application. This typically consists of: 1. An official “Letter of Contingency” 2. A detailed plan of their storage facilities / magazines <screenshots of 5400. 13, Page 5? >

Do I also need a CDL and a Haz. Mat license to transport 1. 3 g fireworks? Most interpretations of the law can be summarized like this: 1) It is assumed you have a valid BATFE 54 license. 2) As long as you are not engaged in “commerce”, you do not need a CDL nor Haz. Mat endorsement to transport 1. 3 g product you own. What is typically interpreted as “Commerce”? • If an individual or business pays you for anything relating to a fireworks display • If an individual or business charges any type of admission or fee to watch the fireworks display • If any individual or business pays a 3 rd party for 1. 3 g product and you transport it claiming use of your BATFE 54 license NOTE: THIS IS NOT LEGAL ADVICE. THIS IS SIMPLY THE SUBMITTER’S UNDERSTANDING OF EXISTING LAWS. YOU ARE WHOLLY RESPONSIBLE FOR FULLY UNDERSTANDING THE LAW.

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 Inspection and 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. 3 G Class B fireworks (even sparklers). • In order to be 1. 4 G 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. 3 G 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.

Handling Investigations (p. 2) • DO NOT LIE to any law enforcement officer as you can be arrested for lying to them. • It is completely legal for them to lie to you -- do not trust anything they say. • If they ask to search your property, tell them no. Even if you let them search a small area on your property (such as a shed), it is considered by the courts as a waiver of your rights, and they will search ALL of your property.

Handling Investigations (p. 3) • If they can get a search warrant based on what they know, they will have it in hand when they arrive. If they tell you they will get a search warrant if you do not cooperate, it is a bluff. No judge will grant a search warrant on the basis that you would not give up your constitutional right to privacy. • Do not invite people you do not know well into your shop. It is easy for people to simply assume you are breaking the law by simply having chemicals or tools.

Handling Investigations (p. 4) • The ATF has 24 hours to obtain a search warrant if someone claims you are making fireworks. If the ATF does not have an eye witness, they cannot get a warrant. • Keep your magazine records in perfect order. You can be arrested if your records are inaccurate or incomplete. • If you are detained, they can only hold you for 20 minutes without charging you, but you must ask to leave. At that point they will either charge you with a crime or release you. • It is a violation of federal law to violate your state explosive laws.

ATF and Rumors • If someone decides they do not like you, they can call the ATF and falsely accuse you of making pipe bombs or M 80’s. • The ATF will accept this as true. It will destroy your reputation with the agency. You will be investigated. There is nothing you can do to restore your credibility. • It is highly unusual for someone to be prosecuted for filing false and malicious criminal complaint.

Legal Counsel • If you believe you are the subject of a legal investigation, or you are found in violation of an ATF regulation, it is important to get legal help right away. • The ATF will tell you “nothing is wrong”, but it is simply posturing to keep you from seeking legal counsel. • Here are some competent fireworks and explosives attorneys that can help you: – – John Brooke: 800 -481 -0900 work, 765 -289 -0760 home Don Creador: 917 -226 -1881 work Doug Mawhorr: 765 -741 -1375 Tom Morrow: 410 -823 -9406 work, 410 -258 -8666 home • John Steinberg is an excellent resource for advice in the event you are involved in an investigation. You can contact him at 410 -655 -8594, or jrsrocket@aol. com.

The Final Word • Whether it is licensing, permission to search, or investigations – stand your ground. • Don’t tell people you make fireworks. • Keep a low profile. • Keep excellent records. • Act responsibly. • Follow the rules.

Questions? Dave Stoddard dgs@accelix. net 301 -572 -5555 : home You can find these materials and more on the Internet at this web address: http: //www. accelix. net/atf