Which Products Are Regulated Under the Federal Explosives Laws?

March 8, 2018

The federal explosives laws in 18 U.S.C. Chapter 40 impose licensing requirements on persons who engage in the business of importing, manufacturing, or dealing in explosive materials.  License requirements also apply to occasional users and hobbyists, as persons who wish to lawfully transport, ship, or receive explosive materials must obtain a user permit from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).  Licensees and permittees must maintain records of acquisition and distribution of explosive materials and store them in storage magazines that comply with construction, housekeeping, and tables of distance requirements in ATF regulations.

The starting point for federal regulation is determining whether a particular product fits within the definition of “explosive materials.”  The statutory definition states the term means “explosives, blasting agents, and detonators.”  Those terms are defined in the statute as follows:

Explosives: Any chemical compound mixture or device the primary or common purpose of which is to function by explosion.

Blasting agent:  Any material or mixture consisting of fuel and oxidizer intended for blasting not otherwise fitting within the definition of “explosives.”

Detonator:  Any device containing a detonating charge that is used for initiating detonation in an explosive; the term includes electric blasting caps of instantaneous and delay types, blasting caps for use with safety fuses and detonating-cord delay connectors.

The statutory definition of “explosives” requires ATF to publish and revise at least annually a list of explosives subject to regulation.  This annual list is titled the “List of Explosive Materials” and is published in the Federal Register.  The most recent version (2017 Annual List of Explosive Materials, 82 FR 61589, December 28, 2017) is on the agency’s website in the Publications Library.

The annual list of explosive materials should make it relatively straightforward for members of the explosives industry to determine whether a particular product is subject to regulation.  The list is alphabetical and uses terms commonly understood by the industry.  However, some of the compounds listed are generic and do not clearly indicate which products are included.  For example, the 2017 list includes entries for “Explosive gelatins,” “Explosive liquids,” and “Explosive powders.”  Maybe these terms are clear to the ATF personnel who put them on the list, but they may not be clear to company personnel responsible for ensuring compliance with federal law.

Industry members who need to know whether a particular product fits within the definition of “explosive materials” should request a classification from ATF’s Explosives Industry Programs Branch (“EIPB”).  There is no charge for obtaining a classification and a determination generally takes 4-6 months.  Requesters may be required to submit product samples for analysis.  EIPB may be contacted by calling (202)648-7120 or via email at eipb@atf.gov.

The federal explosives laws and implementing regulations also provide a number of exemptions for products that would otherwise fit within the definitions outlined above.  The exemptions include the following:

  • Explosive materials being transported via railroad, water, highway, or air in accordance with safety regulations of the Department of Transportation or the Department of Homeland Security;
  • Explosive materials manufactured or imported for distribution to the U.S. military and other federal, state, or local government agencies;
  • Explosive materials used in medicines and medicinal agents in forms prescribed by the U.S. Pharmacopeia or the National Formulary;
  • Small arms ammunition and components of small arms ammunition (this includes smokeless propellant suitable for use in small arms ammunition and other explosives listed in the definition of “ammunition” in 27 C.F.R. 555.11);
  • Fireworks classified as UN0336, UN0337, UN0431, or UN0432 explosives by the U.S. Department of Transportation and generally known as “consumer fireworks” or “articles pyrotechnic;”
  • Special explosive devices as designated by ATF;
  • Gasoline, fertilizers, propellant actuated devices, and propellant actuated industrial tools;
  • Industrial and laboratory chemicals intended for use as reagents and which are packaged and shipped pursuant to U.S. Department of Transportation regulations;
  • Certain specified model rocket motors; and
  • Commercially manufactured black powder in quantities not to exceed 50 pounds if intended to be used solely for sporting, recreational, or cultural purposes in antique firearms or antique devices

Readers are cautioned that the above exemptions are complex and may not exempt products from all requirements of the law and regulations.  For example, manufacturers and importers of smokeless powder must still obtain a license from ATF and import products with a Form 6 import permit; marking requirements apply to explosives manufactured for certain government agencies; and state and local government agencies are required to store explosives in accordance with ATF’s storage regulations.  It is essential that industry members contact ATF for guidance before concluding that explosive materials are exempt from all ATF regulations.

Compliance with the federal explosives laws is essential to ensure the safety and security of explosive materials and to avoid violations of the law.  Industry members should become familiar with the statutory definitions and exemptions, as they are the starting point for compliance.  

This bulletin is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this bulletin does not establish an attorney-client relationship.

Please contact me with questions about this bulletin at teresa@ficarettalegal.com or (301)358-3553.

By | 2018-03-18T04:18:09+00:00 March 8th, 2018|