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Old 05-18-2019, 12:51 PM
flangster

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ATF: Can I manufacture black powder for my own personal use without a license?



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There was a recent discussion here in the Black Powder subforum (since deleted) about whether a person in the U.S. may manufacture black powder for his or her own use in a replica muzzle loader without a federal license for the manufacture of explosives. "More heat than light," is how I'd characterize the debate.

I spent some time digging around in the ATF's materials, and looking at federal law/regs on the the issue. I am going to post what I found, with links to the source material, without posting my own conclusions. This is, therefore, not legal advice or an expert opinion. It is intended to help the RFC community to easily find pertinent materials related to the U.S. federal law on this issue. RFC members can read the associated source material and come to their own conclusions.

The Organized Crime Control Act of 1970, Title XI, Chapter 40, United States Code Title 18, Section 1102 is where the text is set out. Section 841 sets forth the definition of a "manufacturer" as it relates to explosives. It reads: "(h) 'Manufacturer' means any person engaged in the business of manufacturing explosive materials for the purposes of sale or distribution or for his own use." (my emphasis). Section 841 (d) defines "explosives" as including black powder.

However, Section 842 of that chapter and title (Unlawful Acts) states that "(a) it shall be unlawful for any person -- (1) to engage in the business or importing, manufacturing, or dealing in explosive materials without a license issued under this chapter." Again, my emphasis. The rest of Sections 842-848 deal with license requirements, importation of plastic explosives and penalties for violating those provisions or the terms of a license. There is a long list of folks who are not allowed to own or possess explosives under any circumstances that will be familiar to anyone who has filled out an ATF Form 4473 for the purchase of a firearm.

The question of whether manufacture of black powder for personal use is engaging in "the business or importing, manufacturing or dealing in explosive materials," (the activity actually regulated by that statute) is not addressed directly in the text of the law, or the associated federal regulations (Title 27, Part 555 and following).

Cornell University maintains a copy of the US Code on their website and the above text can be found here:

https://www.law.cornell.edu/uscode/t...t-I/chapter-40

The Code of Federal Relations related to the above laws can be found here:

https://atf-eregs.18f.gov/555

Where there are questions about the specific application of a federal law, the guidance of the agency charged with enforcing that law can be helpful. In this case, the Bureau of Alcohol Tobacco and Firearms is the agency in question, although there may be relevant state laws, which I am not addressing.

The ATF gives some guidance on the question of whether manufacturing explosives for personal use is being "engaged in the business of manufacturing" on its webpage here:

https://www.atf.gov/explosives

Specifically, that web page states: "Persons who manufacture explosives for their personal, non-business use (e.g., making fireworks to set off on your own property or mixing binary explosive components to remove a stump in your own yard) are not required to have a manufacturer’s license. However, no person may ship, transport, cause to be transported, or receive explosive materials unless such person holds a license or permit."

ATF's answer to Question 37 interpreting the regulations related to explosives reinforces the answer above.

"37. A manufacturer’s license is required by persons engaged in the business of manufacturing explosive materials for sale, distribution, or for their own business use. For example, persons engaged in the business of providing a blasting service using explosives of their own manufacture would be required to have a manufacturer’s license. Persons who manufacture explosives for their personal, non-business use are not required to have a manufacturer’s license. However, no person may ship, transport, cause to be transported, or receive explosive materials unless such person holds a license or permit. [27 CFR 555.11: definition of “manufacturer”, 555.41(b)] A separate manufacturer’s license is not required by a licensed manufacturer for the purpose of on-site manufacture, for example, mixing binary explosives or making blasting agents at a quarry or other job site. It is not necessary for a licensed manufacturer to also obtain a dealer’s license or permit to engage in business on his or her licensed premises as a dealer in explosive materials (see also Question 52 and Question 53) [27 CFR 555.11: definition of "manufacturer", 555.41(b)(2)] (my emphasis above).

The above text can be found here:

https://www.atf.gov/explosives/qa/wh...cense-required

For all of you who are still awake, I hope that clears matters up. None of the above quoted language from the ATF deals with storage or transportation requirements, which are a separate kettle of fish. So, for instance, if someone who is "not engaged in the business" of manufacturing explosives makes a stockpile of 50 lbs of black powder, the storage requirements of the federal law (and any applicable state law) would still apply. Tread carefully, understand the rules thoroughly, and be safe.

I encourage anyone reading this who is interested in the subject to consult the source materials directly, and not my summary of them, before forming their own conclusions. Also, laws and regulations can change, and the above snapshot is only relevant as of today's date (May 18, 2019). Finally, if you are really amped up about this, don't complain to me about the text above. Consult your attorney or call the ATF directly for guidance about your particular situation.
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Last edited by flangster; 05-18-2019 at 08:53 PM.
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Old 05-18-2019, 11:51 PM
dufferDave
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You should also be aware that

if you do happen to cross the line into being "in the business" that you run into all sorts of requirements, such as specified construction of buildings in which you manufacture (regardless of whether you are making one gram or 10,000 lbs), the setback distance of manufacturing and/or storage buildings from the nearest inhabited structure (think in terms of 10 acres or so), the keeping of records and limitation/control of access to your property only by trained and certified personnel (may as well start training your 5 yr-old now, the test is a doozy), and a whole bunch of other nonsense.

No, I am not a lawyer, just repeating the hard-learned lessons from other people who wanted to manufacture a few of their own model rocket motors.

And lastly, be aware that any accident caused by your little science project will very likely invalidate your health and homeowner's insurance unless you have previously obtained, in writing, their acknowledgment and approval of your activities. You're on your own.
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Old 05-18-2019, 11:57 PM
dufferDave
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ATF agent No-Fun says:

Quote:
Originally Posted by flangster View Post
".....However, no person may ship, transport, cause to be transported, or receive explosive materials unless such person holds a license or permit."
You can't take it out of your yard. Not on the highway. Not across the border to the next state. Basically, nowhere at all.
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Old 05-19-2019, 10:04 AM
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Well presented Flangster thank you. Interesting that the ATF used my same example of combining binary explosive components in their what is legal/what is not Q&A.

Did you notice in the original discussion that the OP didn't include sulfur in his recipe? I would think that would reduce the gas volume and pressure significantly. Or maybe I wasn't reading him correctly.

All theoretical for me anyway, I'm way past backyard chemistry experiments

Frank
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Old 05-19-2019, 10:16 AM
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".....However, no person may ship, transport, cause to be transported, or receive explosive materials unless such person holds a license or permit."

Quote:
Originally Posted by dufferDave View Post
You can't take it out of your yard. Not on the highway. Not across the border to the next state. Basically, nowhere at all.
Hypothetical scenario Dave. I go to the gunstore and buy a pound of black powder for "old Bessie" and drive home with it. I have received it but hold no license or permit. Did I break the law?

Context is everything and legalese is an entirely different language than common English.

Respectfully,

Frank
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Old 05-19-2019, 10:34 AM
flangster

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Quote:
Originally Posted by LtCrunch View Post
".....However, no person may ship, transport, cause to be transported, or receive explosive materials unless such person holds a license or permit."



Hypothetical scenario Dave. I go to the gunstore and buy a pound of black powder for "old Bessie" and drive home with it. I have received it but hold no license or permit. Did I break the law?

Context is everything and legalese is an entirely different language than common English.

Respectfully,

Frank

Frank: the commercial purchase of BP (say, Goex FFFG) for personal use and the storage of up to 50 lbs of commercially produced BP is exempted from the statute above. So I think your hypothetical is covered. The issue arises if someone makes a pound of BP at home and then drives it to the range without a license, at least as I read the ATF's guidance. So I think Dave's point is well taken.
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Old 05-19-2019, 11:06 AM
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Agreed Flangster, and I believe as you say Dave is correct but I was speaking to context. Any law has to be read in totality not snippets. Just looking at the quoted passage without understanding the accompanying exceptions makes all sorts of things look illegal.

That's where the last conversation went awry.

Frank
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Old 05-30-2019, 08:27 AM
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I had a really cool teacher in 1957, 5th grade, that had us making knives out of flattened large nails, then sharpening, and homemade gunpowder! RIP Mr. Carlson, you were aces in my book.
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Old 05-30-2019, 11:49 AM
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yup, the good old days

Back in my misspent youth we all made our own gunpowder....charcoal, sulfur and saltpeter....insert Bevis and Butthead giggle here as we got "better" we added powdered aluminum and another "ingredient" that was an oxidizer. Loaded the stuff in lengths of copper tubing with a firecracker fuse sticking out the end....can you say pipe bomb boys and girls?...and set them off. How I am still alive with 2 eyes and 10 fingers is a miracle.

Friend's older brother tried to make nitroglycerine in their basement!!!!

Same brother tried distilling sour mash whiskey too.

These kids were teenagers at the time.


When I was reloading shotgun shells later in life I touched off about a tablespoon of Red Dot just to see what would happen....it burnt really FAST. An accelerant, not an explosive. But got an appreciation of the forces unleashed upon ignition. Good thing we didn't cut open shotgun shells in our youth.
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Old 06-07-2019, 07:32 AM
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The Firing Line site forum has/had a long string on home made BP...several hundred posts long over yrs of time. A lot of "stuff" is covered in that string and its a very interesting read.
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Old 06-07-2019, 10:28 AM
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Haz mat fees seem excessive on the surface, but compared to the issues of making your own BP they are trivial.

Better IMO to just buy the stuff, pay the haz mat (if you have to have it shipped), and not worry about legal, quality, or blowing-yourself-up issues.
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