Instructions
Exceptions
1.
Privacy Act Information
To whom do I submit this form? You must complete and submit this form to
your employer (applicant for license/permit). The employer will submit this
form, along with the application, to ATF. If this form is being submitted
AFTER a license or permit has been issued in order to ADD you as an employee
possessor, then the form must be accompanied by a signed letter from the licensee
or permittee requesting that you be added as an employee possessor. If this
form is being submitted for at least a second time, in relation to the same license/
permit renewal, the employee possessor may follow instructions 3 below and the
form should be sent to: ATF, Federal Explosives Licensing Center, 244 Needy
Road, Martinsburg, WV 25405.
Who must fill out and complete this form? EACH employee possessor, as
defined below, MUST personally complete this questionnaire form and certify
that the answers are true, correct, and complete. This form is not required to
be completed by Employee Possessors whose sole responsibility is transporting
explosives in commerce.
Why is this form required? 18 U.S.C., Chapter 40, was amended by the Safe
Explosives Act of 2002 (the Act). The Act made it unlawful for certain
persons to ship, transport, receive, or possess explosive materials. The Act also
made it unlawful to distribute explosive materials to certain persons. Informa-
tion you provide on this form will allow ATF to determine whether you, an
employee possessor in the explosives business or operations, are prohibited
from shipping, transporting, receiving, or possessing explosive materials.
18 U.S.C. § 842(d), (i).
1.
3.
4.
5.
6.
7.
2.
Should documentation be attached to clarify a response to a question
or item? Providing additional documentation to clarify a response to a specific
question or item on the front of this form could help prevent a delay in
processing your Employer Possessor Questionnaire. Please ensure that your
name is on any attached documents(s). In addition, if your employer is
renewing a Federal explosives license or permit, ensure that the employer's
current license or permit number is on any attached documents.
What do I do if I am prohibited from possessing explosives as indicated
above? If you are prohibited from possessing explosives, you may request
relief from your Federal explosives disability by filing an ATF Form 5400.29,
Application for Restoration of Explosives Privileges. This form can be down-
loaded from ATF's website at www.atf.gov/forms/index.htm or may be
obtained by calling (202) 648-7110. Please be advised that you cannot
possess explosives until such time that relief from Federal explosive disabilities
may be granted. For example, if you are a nonimmigrant alien, you should
answer "yes" to question 25, and you are prohibited from possessing
explosives. You may file a relief application, but you cannot possess
explosives until such time that ATF may grant you relief.
How do I obtain additional forms? The form can be downloaded from ATF's
website in Adobe PDF format at www.atf.gov/forms/index.htm. The form can
be ordered using ATF's Online Distribution Center Order Form at
www.atf.gov/dcof/index.htm. The form can also be ordered by calling ATF's
Distribution Center at (301) 583-4696.
Need assistance in completing the form? Please review information online
concerning this form at www.atf.gov, contact the National Licensing Center at
(404) 417-2750, or contact your local ATF office.
ATF Form 5400.28
Revised January 2010
Under Indictment or Information or Convicted in Any Court. An
indictment, information, or conviction in any Federal, State, or local court.
Alien. An alien in the United States means any person who is not a citizen or
national of the United States.
3.
A person who has been convicted of a felony, or any other crime, for which the
judge could have imprisoned the person for more than one year, is not
prohibited from shipping, transporting, possessing, or receiving explosives if:
(1) the conviction was properly invalidated by a court on the basis that the
conviction was unconstitutional; (2) in the case of a Federal conviction, the
person received a Presidential pardon; or (3) ATF granted relief from Federal
explosives disabilities under
18 U.S.C. § 845(b), 27 CFR 555.142.
2.
Purposes of this form, aliens can be employee possessors if they are lawful
permanent residents. 18 U.S.C. § 842(d)(7); (i)(5).
1.
Authority. Solicitation of this information is made pursuant to 18 U.S.C.
§§ 842, 843. Disclosure of this information by the employee possessor is
mandatory if the employee possessor wishes to possess explosives.
The following information is provided pursuant to Section 3 of the Privacy Act of
1974, 5 U.S.C. § 552a(e)(3):
2.
Purpose. To determine the eligibility of the employee possessor to possess
explosive materials.
3.
Routine Uses. The information will be used by ATF to make determinations
set forth in paragraph 2. In addition, information may be disclosed to other
Federal, State, foreign, and local law enforcement and regulatory agency
personnel to verify information on the employee possessor questionnaire and
to aid in the performance of their duties with respect to the regulation of
explosives unless such disclosure is prohibited by law. Finally, the information
may be disclosed to members of the public in order to verify the information
on the questionnaire when such disclosure is not prohibited by law.
4.
Effects of not supplying the requested information. Failure to supply
complete information will delay processing and may cause denial of the
application.
5.
Disclosure of social security number. Disclosure of the individual's social
security number is voluntary. Under 18 U.S.C. §§ 842(f), 843, and Executive
Order 9397, November 22, 1943, ATF has the authority to solicit an
individual's social security number. The number may be used to verify the
individual's identity.
Resubmission of form upon 3-year renewal of license/permit. The person
completing the form may choose to resubmit a photocopy of their original ATF
Form 5400.28 provided the information has not changed. You must certify that
all the answers are still true, accurate and complete by signing and dating
the form.
8.
1.
Employee Ppossessor. An employee possessor is an individual who has actual
or constructive possession of explosive materials during the course of his
employment. Actual possession exists when a person is in immediate
possession or control of explosive materials (e.g., an employee who physically
handles explosive materials as part of the production process; or an employee,
such as a blaster, who actually uses explosive materials). Constructive
possession exists when an employee lacks direct physical control over explosive
materials, but exercises dominion and control over the explosive materials,
either directly or indirectly through others (e.g., an employee at a construction
site who keeps keys for magazines in which explosive materials are stored, or
who directs the use of explosive materials by other employees; or an employee
transporting explosive materials from a licensee to a purchaser).
2.
This request is in accordance with the Paperwork Reduction Act of 1995. The
purpose of this information collection is to determine the eligibility
of the employee possessor to engage in certain operations. The information
requested is required to obtain or retain a benefit and is mandatory by statute
18 U.S.C. 843.
The estimated average burden associated with this collection is 20 minutes per
respondent, depending on individual circumstances. Comments concerning the
accuracy of this burden estimate and suggestions for reducing this burden should be
addressed to Reports Management Officer, Document Services Branch, Bureau of
Alcohol, Tobacco, Firearms and Explosives, Washington, DC 20226.
An agency may not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB control number.
Paperwork Reduction Act Notice
ATF Form 5400.28 is used to determine the eligibility of the employee possessor
to possess explosives materials. Under Federal explosives laws it is unlawful for
certain prohibited persons to possess explosives. See 18 U.S.C. § 842(d) and (i).
18 U.S.C. § 845 (a)(1) provides that these prohibitions do not apply to any
"aspects of transportation of explosive materials via railroad, water, highway, or air
that pertain to safety, including security, and are regulated by the United States
Department of Transportation or the Department of Homeland Security." The
Department of Transportation and the Transportation Security Administration have
exercised their regulatory authority concerning employee qualifications to
transport explosive materials. Accordingly, ATF does not have to determine the
eligibility to possess explosives of Employee Possessors who fall within this
exception.
Definitions
