DOJ proposed changes to explosive law

I periodically check various web sites to see if the ATF is up to anything new. Today I found a very interesting item on the Institute of Makers of Explosives web pages.
They have posted a copy of a letter sent from the DOJ to Vice President Dick Cheney and the Speaker of the House Dennis Hastert. The following URL is for the IME news release and has a link to a copy of the letter:
http://www.ime.org/site/shownews.asp?IdSection=1&IdNewsq&newstype=1
This includes the reviled "not less than $0.02 per pound" explosive fee. Since the retail price of the most used explosive (millions of pounds each year) is less than $0.20 per pound, this amounts to at least a 10% tax on these explosives. Fortunately, this proposal was looked on unfavorably in the House and Senate committee reports on the budget earlier this year so it isn't likely to get very far. Although the Senate report indicated more annoyance with including the money in the budget well before it could be collected than with the fee itself.
"Proposed Fees to Fund Existing Law Enforcement Operations- The Committee is disappointed by the Department's proposal of a $120,000,000 legislative fee on the explosives industry and a permit fee on users to fund existing base operations and programs of the ATF. The Committee understands the legislative proposal for the fee has yet to be transmitted to Congress and that if this fee were enacted today, it would take 2 years to put the regulatory structure in place before any funds could be collected. The Committee finds it is irresponsible to budget for ongoing fiscal year 2006 law enforcement operations with funds that do not exist. These types of creative financing schemes create significant problems for the Committee and could ultimately lead to a disruption to the Department's law enforcement programs. "
Much more interesting is that the DOJ is also proposing to add language to the federal law that would allow them to exempt certain explosive materials. It looks like someone at ATF/DOJ has figured out that some of the exemptions provided by the ATF at 27 CFR 555.141 are _not_ authorized by any provision in the law at 18 USC Chapter 40. The wording of the proposed change is:
(d) Except as provided by section 846(c) of this Title, the Attorney General may exempt from all or part of the provisions of this chapter explosive materials or devices containing explosive material when a determination is made by regulation, that the explosive materials or explosive devices-- (1) are of a type that does not pose a threat to public safety; and (2) are unlikely to be used as a weapon.
(Note that 846(c) would contain the new per pound fee. They may exempt them from some things but they want to be sure and get the money.)
The exemptions at 27 CFR 555.141 not covered by the exemptions in the law at 18 USC 845(a) are:
1) consumer fireworks 2) gasoline, fertilizers, propellant actuated devices.... 3) industrial or laboratory chemicals...
(See: http://www.access.gpo.gov/nara/cfr/waisidx_05/27cfr555_05.html and http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000845----000-.html )
Add to this list _all_ of the proposed exemptions in NPRM 968.
I am concerned with the "threat to public safety" standard. Many cities already consider consumer fireworks such a threat to public safety that mere possession is banned. Gasoline is routinely used in destructive devices that are a threat to public safety. Fertilizers are used in improvised explosives with a couple of notable cases. I doubt if any of these could meet the proposed standard.
This proposal brings up the question of just how good are the current exemptions? Do they really exist? If this proposal isn't passed will the ATF remove the exemptions? Stop honoring them? Pick the ones they like? Could it be this is delaying ATF's promised/threatened PAD clarification?
I note that in the cover letter automotive airbags are given as an example of a "propellant actuated devices". This is odd because past ATF explosive newsletters have made it clear that airbags can be exempted after the manufacturer applies for an exemption as a "special explosive device" under 27 CFR 555.32. A category of exemption that also doesn't exist in the law.

David Schultz wrote:
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http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000845----000-.html )
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Sounds to me like ATF thinks they're going to lose in court on our assertion that rocket motors are PADs, so now they're trying to backpeddle and say that the PAD exemption itself was never legal to begin with.
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If I had on a pair of rose-colored glasses, and stars in my eyes, and I'd just fallen off the turnip truck, I'd say that maybe ATF is trying to construct a way out of regulating problematic things like rocketry -- something that is clearly not a threat yet which they apparently feel bound to regulate. But I've never been _that_ naive. More likely, they want to claim a vague "threat to public safety" as an excuse to regulate things like fertilizer and rockets, while continuing to ignore the many criminal uses of other exempt items such as gasoline.
Thanks for posting this info, David. I assume you've sent this to TRA/NAR?

snipped-for-privacy@aol.com wrote:
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My theory is that this is a result of the internal review by the Department of Justice. As you might recall the ATF was only recently transferred from the Treasury Department.
I suspect that as the DOJ was reviewing the proposed PAD "clarification", some bright lawyer decided to verify that the ATF had statutory authority to issue exemptions. He discovered that while they have the authority to issue regulations to implement the law, there is nothing that says they can exempt things from the law if they feel like it. Instead there is a list of things that Congress has decided should be exempt and this does not include things like fireworks or PAD's.
So they decide to slip it by as part of this regulatory fee proposal. Hoping that no one will notice or perhaps care. If they are indeed holding up the PAD "clarification" until they add this to the law, they will also have to hold up the new rocket motor exemption from NPRM 968. Since I think that this particular proposal has zero chance of passing (because of the user fee), the exemption might never make it onto the books.
I don't mind adding explicit language to the law allowing ATF to exempt items from regulation. I am just not sure that the standard set is a reasonable one. It seems too vague to even allow for the exemptions on the books now.

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They already did.
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Or are simply going to bypass as much comon sense as possible.
Jerry

David:
I agree with you... the following language would be disastrous to HPR:
(d) Except as provided by section 846(c) of this Title, the Attorney General may
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What this language does, is place the power of granting exemption, not in enumerated exemptions that we may already have in code, but places this "exemption authority" into the hands of 1 person, the AJ...
Not only is that a very bad idea, but if you notice the way the following are worded:
(1)are of a type that does not pose a threat to public safety; and (2) are unlikely to be used as a weapon
BOTH of the above must apply before the AJ will grant an exemption. It would be up to US to prove that APCP does not pose a threat to public safety (thats a very vague and open ended construct) AND prove that its unlikely that the APCP would be used as a potential weapon. SO we would have to prove essentially a doube negative.
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It appears also in the language that a "determination would have to be made by regulation" such determination showing that the explosive/device in question would pose a threat to public safety and that it is likely to be uses as a weapon.
I think it would probably be easier to show that HPR is a potential public safety threat and is likely to be used as a weapon, versus trying to prove the other sides of the argument.
What I don't fully understand is whether or not the exemptions that exist at CFR 555.141 would be written into law at USC 18 845(a) so that the two laws are consistent with one another.
folks this is very serious business here...
shockie B)
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http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000845----000-.html )

shockwaveriderz wrote:
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No they would not. The proposed changes to 18 USC Chapter 40 are in the letter. They do not include the exemptions that the ATF has added over the years. This appears to be an attempt (after the fact) to give the ATF the authority to add these exemptions to their regulations.
If you carry that idea through to its conclusion, you arrive at disturbing results.
A case could be made that the ATF exceeded its statutory authority when it created the exemption for consumer fireworks. Therefore all fireworks (sparklers, snakes, and other non exploding devices might be OK) would require an ATF permit. This would achieve the goals of the anti-fireworks nitwits in one swell foop. Note that we are currently making a similar argument in trying to get APCP off the ATF list of explosives. If it works for us...
However, if that worked, then gasoline would also require an ATF permit (plus record keeping and proper storage and all of the rest of that junk). If anything ever met the statutory definition of explosive (Primary and common purpose to function by explosion.), it is gasoline. But if it even appeared that such a thing might happen, you can be certain that Congress would act quickly to exempt gasoline.
I don't see any nefarious intent in this proposed change but I do worry about the consequences.

david:
I still don't understand the difference between United State Code and Code of Federal Regulations. I don't understand how one takes precedence over the other. I can see where they should probably be in alignment to some degree.
Can you explain these differences to a neophyte?
tia
shockie B)
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shockwaveriderz wrote:
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Congress passes laws which become part of the United States Code (USC). Ages ago, Congress decided that they didn't want to get bogged down in the details of all of these laws that they were passing so they "gave" some of their authority to the executive branch. The executive branch is given the power to write regulations to implement the laws.
In the case of the explosives law, that authority is in 18 USC 847:
"The administration of this chapter shall be vested in the Attorney General. The Attorney General may prescribe such rules and regulations as he deems reasonably necessary to carry out the provisions of this chapter. The Attorney General shall give reasonable public notice, and afford to interested parties opportunity for hearing, prior to prescribing such rules and regulations."
Procedures are also described for writing these rules. (The Administrative Procedures Act, 5 USC Chapter 5) This is why the ATF is required to issue a NPRM, solicit comments, and then publish a final rule. All of this activity happens in the Federal Register. There is a lot of it too. I subscribed to the daily table of contents a year or so ago just to watch what the ATF, CPSC, and FAA are up to.
http://www.gpoaccess.gov/fr/index.html
In theory, Congress can veto a rule issued by the executive branch through this process but it rarely happens. This is the way that Congress hand waives the separation of powers issue. They can claim that they have the final authority. But take a look at the Federal Register and ask yourself how much of this is reviewed by Congress.

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One is law (USC) and one is regulation (CFR).
One you go to jail over and one you pay a fine for (more often than not).