ROL NEWS--Joint Statement on BATF Litigation, November 2, 2004

Joint Statement on BATF Litigation, November 2, 2004 November 3, 2004 Web posted at: 1:03 PM EST
(ROL Newswire) -- ROL has received the following joint statement from
NAR and TRA:
This message will outline the results of the October 15, 2004 hearing in U. S. District Court in Washington, DC, before Judge Reggie Walton and next steps in our legal effort to remove unnecessary, and we believe illegal, regulation of the sport rocketry hobby.
Judge Walton declined to grant our requests for action that would rule on the law in the context of "briefings on status", without additional filings (See NAR Website for a copy of the ruling). He did so because he felt a substantive ruling on the ATF's 1994 letter was "not properly before the Court." Judge Walton made no comments during the hearing particular to our requests, and the resulting order clearly takes no legal position on the specific issues raised by the ATF's publication of "Questions and Answers - Hobby Rocket Motors". This was obviously not the desired outcome, but we are not discouraged by it. Instead, we examined our next steps in accordance with the judge's instructions, and identified appropriate options.
After reviewing these options with counsel, we have taken two steps to further our case to secure an unregulated future for sport rocketry.
First, we will initiate an appeal on Count 1 of the lawsuit. An appeal of Count 1 is consistent with strategic directions that we carefully considered for several months. Count 1 argued that APCP does not function by explosion and is therefore not subject to BATFE regulation. BATFE won their motion for summary judgment on this count, but counsel advised we have strong grounds for appeal. In order to pursue such an appeal, we have filed a motion to separate Count 1 from the remainder of the litigation in order to proceed. You can read the text of this motion here.
If the Court approves the motion, we can proceed immediately to appeal Count 1. If the Court denies the motion, we will have to wait for all elements of the current litigation to complete before we can undertake an appeal of this or any other counts.
Secondly, on October 28, 2004, we filed a motion seeking to amend the current litigation to incorporate directly the issues the Court indicated were not yet properly before it. You can read the text of this motion to expand the litigation at the NAR website.
The next scheduled action on our case is a planned December 17, 2004 status hearing before Judge Walton.
Finally, we have received input from members around two particular subjects: (a) the lapse of time between the October 15 hearing and this announcement, and (b) what support members can provide to assist the legal effort.
We withheld immediate response from the October 15 hearing because we wanted to completely review legal options around the Court's most recent order and report to our respective Boards. After reviewing and discussing those options, it was clear our counsel needed more time to complete the necessary filings to support our response. We wanted both the legal review and the filings to be complete before issuing this joint statement. We realize this delay may be frustrating for members, but we felt a more complete report would serve more members better than a faster report on the hearing outcome alone.
Members can do two things to assist our legal work.
First, we again strongly recommend that members in the field report in detail any actions taking by ATF personnel in the field, particularly if they use the ATF's "Questions and Answers" as the basis for their action.
Forward to either of us the dates, times, names and offices involved, along with a complete description of your experience. Be factual and complete in your message. If we need additional information, we'll contact members individually.
Secondly, we again urge members to consider donating to the Legal Fund.
It is clear from this most recent set of ATF actions in the field that only court or Congressional pressure will move the agency to change its behavior. We need your continued financial support to make that change happen. We estimate the remaining legal work on both the litigation and appeal will take approximately $100,000 over the next two years. Please donate today in whatever amount you possibly can. And thanks for your assistance to date.
As we have further developments, we'll continue to report them here and in our publications.
Mark B. Bundick, President National Association of Rocketry
Ken Good, President Tripoli Rocketry Association
Source: NAR & TRA joint statement
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And thank god!! That letter has weight limits mentioned. It was motivated by Errortech's erroneous claims of "restricted access-sm" being real, which we all now know it is not and never was.
The 1992 letter and the regulations themselves are FAR more favorable.
Wanna bet if wacky TRA/NAR now try to put the 1994 letter "at issue"? That would be horriffically stupid.

Trying to SAVE YOUR ASS from yourselves.

Yet.
27 CFR 555.141-a-8. Period. End of story.
Kills permits. Kills magazines. Kills the explosives list. Kills ATF jurisdiction itself.
What more could you even wish for?

Unregulated means:
No weight limits. No permits. No magazines. No the explosives list. No ATF jurisdiction itself.
Do YOU mean that??

--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
Opinion, the whole thing. <mail to: snipped-for-privacy@gte.net>
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comment inline:
"Jerry Irvine" >> wrote :
Judge Walton declined to grant our requests for action that would rule

I think this is excellent news for the NAR/TRA: I expect the Judge to eventually rule that the 1994 BATFE letter was "improper rulemaking" .... which is good.....

Please post the 1992 letter and what "regulations" were in effect circa 1992? Does the DOT Toy Propellant Device exemeption still exist at this point in time?
Perhaps even the 1992 letter is "improper rulemaking on the BATFE's behalf?....
If this is the case, does this invalidate the 1998 BATFE"s NPRM deleting the TPD exemption? perhaps this is why they want to "redefine" TPD in NPRM 968....

I disagree..... see above....
It appears to me that the Judge may end up having to "unravel" the tangled mess made over the past 12 years by the BATFe.....to our benefit of course.....
shockie B)
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appears the NAR/TRA already has already done so:
Secondly, on October 28, 2004, we filed a motion seeking to amend the current litigation to incorporate directly the issues the Court indicated were not yet properly before it. You can read the text of this motion to expand the litigation at the NAR website
They evidently have not placed the text of this motion up yet at this time..
shockie B)
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shockwaveriderz wrote:

http://www.tripoli.org/documents/batfe/MotionForLeave20041028.pdf
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kevin: yes after I posted that I went to the TRA website and found the .pdf......Did you notice that there are numerous blank pages and actual missing pages in that document? somebody needs to redo and repost it..
shockie B)

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shockwaveriderz wrote:

I'm working on getting photocopies, so I can make a better PDF. I'm pretty sure it's a matter of how the PDF was created that's the problem.
-Kevin
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Statement of the obvious?
As with all court orders there is one relevent operative paragraph. In this case it is the one saying no order at this time, wait till the full order.
They simply failed to prove exegency. That means they have minimal quality of legal skill for their money.
After all, they only have $300k and the legal system commands $2m+
Errortech paid $1m in advance and the lawyers STILL "ran out of money" before the first hearing!!!
Jerry
--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
Opinion, the whole thing. <mail to: snipped-for-privacy@gte.net>
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Kevin Trojanowski wrote:

http://cutepdf.com /
The freebie pdf print drivers works awesome. Routinely I have to convert huge(200+ mgs) multi-page tiff images to pdf and this little gem hasn't failed me yet.
Ted Novak TRA#5512 IEAS#75
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I don't see any blank or missing pages.
The first two pages are the actual motion. Twenty pages of the ammended complaint. One page of a draft order to accept the motion. One page certificate of service.
Looks like it is all there to me.
shockwaveriderz wrote: > kevin: yes after I posted that I went to the TRA website and found the > .pdf......Did you notice that there are numerous blank pages and actual > missing pages in that document? somebody needs to redo and repost it.. > > shockie B)
> > >> shockwaveriderz wrote: >> >>> appears the NAR/TRA already has already done so: >>> >>> >>> Secondly, on October 28, 2004, we filed a motion seeking to amend the >>> current litigation to incorporate directly the issues the Court >>> indicated were not yet properly before it. You can read the text of >>> this motion to expand the litigation at the NAR website >>> >>> >>> They evidently have not placed the text of this motion up yet at this >>> time.. >> >> >> http://www.tripoli.org/documents/batfe/MotionForLeave20041028.pdf >> >
--
David W. Schultz
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Exactly as now. 27 CFR 555.141-a-8. No change except 55 to 555.

Since it reinforces the law instead of going against it, and since it clearly is being applied to "DOT Class B" rocket motors (ie beyond whatever 27 CFR 55.141-a-7 was in effect at the time).
Period.

As I have said all along, as far as rockets go a-8 always trumped a-7.
What a-7-v mods did was kill most of the pyro industry.
Right to liberty and enjoyment be damned. Not functioning as an explosive (almost instantaneous combustion of ALL the constituents) also be damned. heck, the implementing law and the reg scope be damned. These BATFE guys might as well be appointed as gods. It would save time and trouble.

--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
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why do u say that, "(As I have said all along,) as far as rockets go a-8 always trumped a-7?" I don't know if I agree with that interpretations... a-7 goes back to the ICC-Interstate Commerce Commission / BOE - Bureau of Explosives designation from the very late 50's or early 60's per V.Estes and G.Harry Stine......
I was always under the impression that a-7 was specifically for (model) rocket motors...... where a-8 "includes" most if not ALL rocket motors, model or not...
shockie B)

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It is not an interpretation.
Exemptions are necessarily OR conditions. Anyone that applies works.
It really is that simple.

A7
27 CFR-55.141-a-7-v (1971-95)
2003
As a reminder, here is the exemption as proposed in NPRM 968:
"(v) Model rocket motors consisting of ammonium perchlorate composite propellant, black powder, or other similar low explosives; containing no more than 62.5 grams of total propellant weight and designed as single use motors or as reload kits capable of reloading no more than 62.5 grams of propellant into a reusable motor casing."
2002
27 CFR 55.141(a)(7) The importation, distribution, and storage of fireworks classified as UN0336, UN0337, UN0431, or UN0432 explosives by the U.S. Department of Transportation at 49 CFR 172.101 and generally known as "consumer
1995
27 CFR 55.141(a)(7) The importation and distribution of fireworks classified as Class C explosives and generally known as "common fireworks", and other Class C explosives, as described by U.S. Department of Transportation regulations in 49 CFR 173.100 (p), (r), (t), (u) and (x)."
Note 49 CFR 173.63 All division 1.4 (including s,c,g) are equivelant to Class C.
ATF and DOT DO come together here.
A8
27 CFR 555.11, Propellant Actuated Device. Any tool or special mechanized device or gas generator system which is actuated by a propellant or which releases and directs work through a propellant charge.
27 CFR 555.141 exemptions (a) (8) Gasoline, fertilizers, propellant actuated devices, or propellant actuated industrial tools manufactured, imported, or distributed for their intended purposes.
Here's the JUDGE's words verifying it.
"In addition, the Court finds that the ATF's pronouncement that sport rocket motors are not PADs is invalid because it was made without compliance with the notice-and-comment rulemaking procedures of the OCCA and the APA."
Here is the court order that is from:
http://www.v-serv.com/atf/62.pdf
Just factual Jerry
My name is Jerry Irvine.

--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
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27 CFR 555.141-a-8. Period. End of story.
Kills permits. Kills magazines. Kills the explosives list. Kills ATF jurisdiction itself.
What more could you even wish for?
ONLY if the ATF decides you are right. they interprit there rules unless overrode by congress or the courts.
What then ?
They (IIRC) have stated that 27 CFR 555.11-a-8 does not apply because they do not recognize Rocket motors at pads. period.
now what ?
Chris Taylor http://www.nerys.com /
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Nope that's what judges, trials and reading the law to your (non)agent is for.

And actually "may" have the right if you are stupid enough to get a permit for exempt goods as Tripoli forces you to do by forcing vendors to get UNNEEDED ATF permits. Shit flows downhill.

1. Don't get an unneeded permit. 2. Read the law to anybody who questions your actually using the exemption the law provides you.
Special note. Tripoli cannot comprehend and will refuse to listen to reason.

--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
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once again it comes to this. the laws have rather little meaning.
enforcement is everything.
if I get something that the ATF says I need a permit for without a permit and then proclaim I am legal in 555 whatever and atf says sorry that excemption does not apply and arrests me anyway
now what ?
what happens if the judge agrees with the atf
you do realize there is only one way to win this right ? the only way is to get a judge to rule that ATF can not regulate APCP at all when used in rocketry
otherwise we are simply a rule making process away from losing any minor victory anyway
Chris Taylor http://www.nerys.com /

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Assumes facts not in evidence.
They cannot arrest you on an obviously illegal claim.
That is why they merely harass you and lie to you about needing a permit.
Knowing this is the only protection. You must cite the law to them to FORCE them to follow the law and their duty, or themselves go to jail.
I proved that.

Nope. See above.

--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
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Jerry Irvine wrote:

How, to whom, and when did you prove that??
Fred
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We've already seen how you misuse info from me.
--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
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Jerry Irvine wrote:

Do you fear me jerry, in a public forum? If not answer the question..
fred
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