BATFE Hammers rocketeers with Magazines

From ROL:

-----Original Message----- From: Mark B. Bundick [mailto:xxxxxxxx.net] Sent: Saturday, May 08, 2004 4:45 AM To: Subject: [NAR_Sections] URGENT - BATFE Enforcement??

Folks,

NAR /TRA counsel is getting increasing reports of BATFE threats of enforcement action. These come after our win in the court and further clarification during the April 22 hearing.

I'm attaching below the text of our most recent letter to Jane Lyon, the BATFE's attorney in the case, outlining our positions.

I need folks to immediately report to me any and all enforcement or threatened enforcement actions undertaking against NAR members in the field.

Please be prepared to provide counsel with as much detail as possible. The following information would be helpful:

Time and Date Inspector or Agent's name, identification number. etc Office out of which the agent works Supervisor's name Phone number etc.

We need to get this information into Joe Egan's hand if any such incidents occur. Please feel free to email me or call my home phone: xxxxxxxxxx

Thanks.

Cheers, Bunny

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May 6, 2004

Via Facsimile @ xxxxxxxx and First Class U.S. Mail Jane M. Lyons, Esq. Assistant United States Attorney Judiciary Center Building

RE: Arbitrary Enforcement Action by BATFE Field Agents Against Hobby Rocketeers

Dear Ms. Lyons:

It has come to our attention that the BATFE is poised to take (or is already taking) immediate enforcement action against law-abiding hobby rocketeers, employing some of the same arbitrary, no-notice tactics that has caused the District Court twice to reprimand the agency. I am writing to notify you that if this action persists, we intend to seek judicial relief from Judge Walton next week.

The latest round of harassment of hobbyists concerns BATFE's sudden reinterpretation, with no notice to anyone, of its rules concerning storage magazines that LEUP permit holders have been forced to purchase as a result of BATFE's previous round of enforcement actions since the 1990s. Rocket dealers such as Magnum Rockets in Ohio and others have been selling the magazines for at least 8 years, and the manufacturer has been making and selling them for at least 15 years. Over 2000 magazines have been sold to hobby rocketeers. The dealers were told by BATFE officials repeatedly over these many years that those very robust magazines, which have a double-lock system, were perfectly acceptable under BATFE's rules.

Then last December, with no notice, BATFE changed its interpretation of the type of locks that should be required on these magazines. The dealers and manufacturers scrambled, and marketed a modification kit that could convert the locks to acceptable form. Hundreds of hobby rocketeers purchased these retro kits. BATFE told the dealers, and the hobbyists, that these retro kits were acceptable. Then, last week, BATFE again changed its interpretation, again with no notice. BATFE's latest about-face apparently involves its continuing uncertainty over the meaning of a "mortise lock." BATFE's new interpretation apparently now requires that those locks be internally mounted within the storage magazine wall, something that is impossible to retrofit and which essentially will put all the hobbyists (and dealers) out of business, at least until they can write off their original investment, induce a manufacturer to make new magazines, and purchase those new ones.

For example, I was notified by Mr. Robert Chilmonik, a Lea County, Florida School Board member and certified rocketeer who resides at 2008 Cornwallis Parkway, Cape Coral, Florida, that BATFE agents twice visited his home to inspect his magazine. First, they told him last week that it was acceptable. Then they returned this week to tell him it was not acceptable. As a result, he is being forced today to surrender his license to the agency. BATFE has taken a similar approach to another Floridian named Harold Sasloe. Mr. Ross Dunton, an Ohio dealer, says the BATFE's Cincinnati office is planning similar enforcement action in Ohio.

Obviously, this is most disturbing to the rocket organizations, since it smacks of trying to obtain indirectly what the court refused to give the BATFE directly. BATFE's actions this time are likewise unlawful. First, to the extent these magazines contained fully assembled rocket motors (many of them contain only such motors), they are propellant actuated devices (PADs), which are currently exempt from BATFE regulation and, technically, do not even need to be in a double-locked, heavy-duty magazine. Second, I would have hoped that the BATFE would know by now that changing its rules with no notice, and no opportunity to comment, is not something federal administrative law can countenance. This latest round is particularly onerous, since it will force the hobby rocketeers to surrender their licenses and abandon their considerable investments in their already double-locked, and recently retrofitted, magazines. If this is not arbitrary, nothing is.

Please let me know if this is something we will need to take up with the court next week.

Sincerely, Joseph R. Egan