ROL NEWS--NAR-TRA Joint Statement of May 12, 2004

NAR-TRA Joint Statement of May 12, 2004 May 12, 2004 Web posted at: 12:12 PM EDT
(ROL Newswire) -- The following is a joint statement from the National
Association of Rocketry (NAR) and Tripoli Rocketry Association:
We are responding to member inquiries asking for further clarification of Judge Walton's March 19 opinion, particularly as regards weight limits and high power rocket motor reload kits. The Court did not directly address the topic of reload kits in the opinion. The combination of the counts already decided, those remaining open and BATFE ongoing and potential rulemaking creates an unfortunately unclear situation for members and dealers.
The Count One ruling affirms the BATFE's right to regulate APCP based on Congressional intent. This ruling states that Congress included deflagrating materials under the provisions of the Explosives Control Act of 1970, and thus such materials are within BATFE's jurisdiction to regulate.
The Count Three ruling affirms that "fully assembled rocket motors" are propellant actuated devices (PADs) and subject to statutory protection. The judge sharply criticized BATFE for engaging in unlawful rulemaking by attempting to create rules on PADs without observing proper rulemaking procedure. The Court also overturned BATFE's 2000 "rule" as illegal, and stated, in effect, that the status quo reverted back to conditions outlined in a 1994 letter to Aerotech, Inc.
That letter specifically referred to PADs only as "fully assembled rocket motors." The judge repeated that qualification in his latest opinion, quoting the 1994 letter verbatim. He also confirmed in our recent hearing that this was precisely his understanding of the status of the PAD exemption.
BATFE now has a court opinion allow them to potentially regulate APCP, but has no legally promulgated regulation for APCP using weight thresholds and intended use. This legal question remains open to debate under Counts Four and Five, subject to any potential rulemaking forthcoming from NPRM 968, and potentially subject to further BATFE rulemaking.
Thus, we believe the legal status of reload kits remains as it was prior to the court opinion. BATFE believes reload are subject to regulation, while the NAR and TRA assert they are not.
Counsel has advised NAR and TRA that although it was possible to argue that the reload issue, they recommended we not until the completion of our litigation and BATFE's rulemaking. Until BATFE's rulemaking is finished, the Court completes its ruling on the pending litigation and NAR / TRA counsel has reviewed it for legal challenge, any attempt by NAR and TRA to make a legal determination of the status of reloads would be unwise and may in fact jeopardize our position.
Based on counsel's advice, we recommend members and dealers treat fully assembled motors, regardless of propellant mass, as PADs, but at least until BATFE's rulemaking is finished and we can challenge it fundamentally, reloads are not PADs. Our most reasonable interpretation on reload kits, is that their legal status has not been altered as a result of the Court opinion.
Members should also be aware that counsel received a letter from ATF disagreeing with the 62.5 threshold, claiming that, as part of the Aerotech letter in 1994, it is the law that the status quo ante reverts back to. We continue to disagree with the ATF, but will probably have to ask the court for clarification at some future date.
On additional points and questions raised by members, counsel has also advised NAR and TRA that our case on remaining counts is quite strong and case rulings to this point have been generally receptive to our legal positions. We have asked counsel to also begin thinking of possible further legal challenges, including appeals. Counsel has researched the possibility of legal fee recovery, and we believe a good legal avenue for such recovery is available to us under 5 USC Sec. 504. Neither further legal challenges nor cost recovery can be undertaking until the current litigation is complete.
Finally, we appreciate the frustration experienced in the field by members and dealers. The legal process is equally frustrating for NAR and TRA leadership as well, but in order to complete what we have begun, we must be patient and let the legal process complete in due time. Until then, we recommend members return to the flying field and enjoy the PAD exemption we've obtained.
We again remind members who either are threatened or receive BATFE enforcement action should immediately contact NAR President Mark Bundick via email ( snipped-for-privacy@nar.org) or at 630-293-9343 or TRA President Dick Embry via email ( snipped-for-privacy@aol.com) or at 520-241-1582 and provide full details of those actions or threats. NAR/TRA counsel will then seek the appropriate relief for members from Judge Walton's court.
As we have further developments, we'll report them here and in our publications, as soon as possible.
Mark Bundick, President National Association of Rocketry
Dick Embry, President Tripoli Rocketry Association
Source: ROL Newswire Service
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Here we go again.
Let me teach you something:
27 CFR 555.141-a-8 was affirmed.
It states:
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.
PADS are a defined item/range:
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."
The ORDER is as follows:
http://www.v-serv.com/atf/62.pdf
The most notable excerpt is at the end:
"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."
The words, "in addition" means whatever went before, this ADDS to it.
The words, "the Court finds that the ATF's pronouncement that sport rocket motors are not PADs is invalid",istheprimepoint.
ALL SPORT ROCKET MOTORS ARE EXEMPT.
ALL.
If you have a reading and/or learning disability, that is NOT the judge's fault. Nor the ATF's fault. You now have the LAW and an ORDER telling you the OBVIOUS.
Gonna litigate it till you get a narrow exemption accomplished instead of a broad one?
I would bet the farm on it based on past TRA and NAR practices and policies.
Jerry

--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
Opinion, the whole thing. <mail to: snipped-for-privacy@gte.net>
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<snip rest>
I am going to go out on a limb here, and tell you folks something that may shock you.... JERRY IS RIGHT, FOLLOW HIS ADVICE.
Do NOT let the fact that Jerry was just fined $40,000 for playing fast & loose with the law (i.e. "living the lifestyle") worry you, he is an EXPERT LEGAL ADVISER on these matters.
TRUST JERRY, HE KNOWS MORE THAN NAR, TRA, AND THEIR SO-CALLED "LEGAL COUNSEL" COMBINED.
You're welcome, Jerry.
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Thanks :)
--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
Opinion, the whole thing. <mail to: snipped-for-privacy@gte.net>
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Big Fine wrote: << Gonna litigate it till you get a narrow exemption accomplished instead of a broad one? >>
No, they're going to litigate it until they get as much as possible out of it. Currently the ATF does not accept your "broad" exemption, hence the need for litigation.
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