My Email to the ATF and their answers interspered in BOLD.
The net of the two answers are:
1) Its illegal to sell a can to a somebody at the range who forgot and left his home, even if no profit is involved.
2) It's legal for one case to be ordered then split among among the group of prearranged buyer participants.
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To: eps@atf.gov
Sent: Saturday, August 30, 2008 6:12 PM
Subject: Clarification of "selling" the occasional can of black powder to a fellow hunter if he's run out
I’ve read a lot on the ATF website over the years trying to be certain that I operate within the law, and for example have learned that as an individual I can buy/keep up to 50lbs black powder for recreational purposes like my weekend shooting and hunting, without having to have a permit or license…the regs in general seem to make a distinction between recreational use and business use, like dealers, retailers, etc. And several of us were discussing item #47 which states to the effect that it’s unlawful to sell black powder to someone without a permit or license…which has lead to these questions as we want to be sure we aren’t breaking the law.
Example #1
From time to time over the years there’s always the occasion where a fellow Flintlock shooter will show up at the range and realize he’s forgotten his powder, left it back at the house, etc…and someone will usually have an extra can in their shooting box and let the guy have it at whatever the cost was.
ANSWER
Yes – whenever black powder is sold the distributor must have a license to deal in explosives as required by 27 CFR 555.41 – 43.
Example #2
With all the shipping and handling fees, plus the HazMat fees, by far one of the least expensive ways to buy black powder is to buy it by the 25lb case. (25 1Lb cans) And when somebody will be needing to order some more black powder, but not wanting the whole 25 lbs in a case, its not uncommon for 2-3 guys to agree to use all 25 cans but only one guy places the order of course, then they simply spilt up the cost according to however many 1 lb cans each guy wanted.
ANSWER
I would not interpret this as selling because there is a prior arrangement to split the order once received and one person is just ordering it for convenience purposes. If an individual gets a portion of the order and then turns around and sells it to another individual then they would need a dealers license.
In our opinion, those are not examples of somebody “selling black powder without a license” as I’m sure that the ATF reg was established for…they are not examples of somebody actually in business trying to seek out buyer to sell black powder to…not advertising to try and sell powder, etc…and of course in these examples no profit is involved…its just a couple of guys splitting a case of powder to get the most economical price, or helping a fellow shooter who forgot and left his powder home 50 miles away…they are just spontaneous circumstances that occasionally just come up.
We appreciate it very much if you could explain / clarify item #47...that it does or does not apply to these incidental exchanges between a couple of fellow shooters from time to time over the years.