Timing of request for comment

You know, I have often pondered why the BATFE would come out in the middle
of an issue that is being contested before the courts, and officially
request comment on those issues. Would it not look like they are trying to
make tracks fast to cover their butts? Why get this kind of stigma...
better to "go with what you've got" and not rock the boat too much...
Maybe I am a little slow, but it just dawned on me today... it was a "catch
22".
Here, NAR and TRA have been expressing/requesting subjective silence in
order to not give the other side any ammunition.
But that was blown to bits by this simple little request, embedded in other
related/non-related baffle.
Here's the catch: we the interested parties start submitting all our
reasons, basically "fleshing out" most everything our "side" possibly could
defend with. Now, with all of these opinions submitted legally and now in
their hands, they can (and probably will) flesh out anything that can be
used against the issue.
BUT, if we didn't answer, then they have more power to enforce the malformed
controls, as we would not show dissent; "we tried to get comment...".
It was a perfect catch 22, and they didn't lose a lot of face doing it.
"What are they going to try to use?"
"I don't know... we don't we ask them... and if they won't talk, then we've
got them anyway."
~Duane "maybe I am just up in the night" Phillips.
Reply to
Duane Phillips
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Duane:
I've been doing research lately and come to the conclusion that the NPRM is irrelevant. Per federal law, government agencies are required to submit the final rule for NPRM. However, and the big however, is the loophole that was given to agencies that want to do whatever the hell they choose to do without any repercussions.
Here is a link stating a study on government agencies that did not take the legal steps for NPRM and ones that did, according to the APA exemption.
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In particular, pay attention to the conclusions on page 32. Any agency that feels it doesn't need to answer to the people, simply files an APA exemption for cause and they are not required to adhear to the NPRM rules.
In the implementation of the Safe Explosions act. The BATFE takes full advantage of this. Go to this link:
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From there, just type in "explosives" then click on implementation of safe explosives act.
From there click on "edit" find on page..."APA, then next. It will take you about half way through the text of the safe explosives act to section D. Section D is the screw you card the AFTE played for no accountability. It is the APA Exemption that relieves them from all liability of following guidlines for NPRM's.
It also states though in section E, that they have conducted "a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities." This section begs the question, where is this certification aka. study? What constitutes significant, is that a dollar amount? a percentage of businesses in the industry suffering? It's a boguss statement and all of us in the rocketry community know this.
In summary the NPRM response that everyone was so gung ho about was wasted time and effort. I'm curious as to why Mr. Kyte didn't point this out to the NAR and Tripoli boards about the APA exemption, since he is supposed to be the top dog in Washington for us.
I hope this clarifies some facts about our situation.
-Boomer
Reply to
Boomer
So a clause was put in to allow a limited amount of flexibility in rule-making that has been widened via mis-use, and now is the norm.
And in this case they have (mis)used it, so it now becomes an issue of method of interpretation and implementation of policy, upon which they are basing several points of their defense on, by saying they have full right to do so, reguardless of whether the APCP is or is not explosive. So their whole argument winds down to, " we have the right to make and enforce stupid rules if we want to; and the court and the people cannot interferre."
Am I missing anything?
~Duane Phillips.
Reply to
Duane Phillips
Point. NPRM968 was literally defective on its face as relates to rocketry regs anyway so they even used a "trial balloon" they could rescind on a moment's notice.
Wouldn't it be nice if ATF were as cooperative and supportive of safe, terrorism free rocketry as FAA is. Hey ATF if you are reading this I am available for consulting on how to accomplish it.
Jerry
Reply to
Jerry Irvine
No.
Reply to
Jerry Irvine
I honestly believe there are two separate issues here, as borne out by the rules themselves and the actions of Congress post facto.
One issue is that of actual explosive regulation after 9/11 and the HSA/SEA. BATFE is covering it's rear in regards to the new laws.
The other issue, as Congress has made clear, involves rockets themselves and terrorist threats.
The problems and confusion stem from the Administration using the ACTIVITY of sport rocketry, and potential abuses thereof, as an excuse to further regulate a SUBSTANCE (APCP) and DEVICE (motors). BATFE's job is to consider explosives and explosive devices and implement regulations based upon the properties of those substances and devices.
The lawsuit stemmed from a concern over "real" BATFE regulations on substances and devices.
The REAL motivating factor for increased regulation now, however, is terrorist use of rockets, not the explosive characteristics of APCP or motors. It is immaterial whether a real terrorist threat from sport rockets exists or not; the illusion of a terrorist threat is all that is necessary to garner support from the elected officials who control the budgets and destinies of the regulating agencies.
The Government is trying to regulate the legal activities of law-abiding citizens by way of indirect rule making in order to promote an "anti-terror" stance; it is bound to be confusing to those affected. The NPRM happened in the midst of the lawsuit, HSA/SEA compliance by the BATFE, and government "anti-terror" posturing.
All the apparent inconsistencies in the government attack on sport rocketry are made clear if you consider the attack to be anti-terror posturing (and an attempt by BATFE to maintain administrative law power) against a small segment of society which cannot fight it with votes nor money. BATFE cannot ever admit they were wrong in regulating APCP motors, nor can politicians or the administration be perceived as not doing everything possible to stop (phantom) terrorists.
Its all about THEM, not us. Its a vicious, self-serving circle of power, PR, and polls. Its why logic, facts, and common sense do not work.
Reply to
Gary
Your example of the implementation of the Safe Explosives Act is simply not fully applicable to the implementation of the changes in NPRM 968.
Notice No. 1 (Implementation of the Safe Explosives Act) was in direct response to an act of Congress. Because of the time limits imposed by the new laws passed by Congress, there was simply not enough time go through the normal NPRM process. So the ATF published an "interim final rule". You could still comment on it. I did. Did you?
NPRM 968 was published in the normal process for rule making. If you want a real example of a final rule that goes this route through the ATF, read
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Which is the final rule published in 1998 that raised the permit fees. Among other things.
If the ATF was going to use the APA exemption, Notice No. 968 would have been published as a final rule instead of as a Notice of Proposed Rule Making. The responses to NPRM 968 were not a wasted effort. At the very least we will keep a number of ATF bureaucrats busy wading through all of the responses and rationalizing the final rule instead of causing other trouble. :-)
Reply to
David Schultz
Which is precisely what they are doing.
Jerry
Reply to
Jerry Irvine
SO jerry finally understands that the rules are pretty much irrelevant.
They have the "power" therfore they have the say until someone with a bigger stick comes along. Right now the ATF has the biggest stick in this issue.
Chris Taylor
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Reply to
Chris Taylor Jr
ARTICLE (motors)
Which has not occured so there is not a threat to mitigate.
I wonder how much we saved them in budget terms by the quick discovery and elimination of two terrorist groups in the past. Alot probably considering what they spend on black programs.
I would be willing to bet NO OTHER INDUSTRY has been involved in the catching of TWO terrorist groups.
Jerry
Point.
Reply to
Jerry Irvine
The only bigger stick is the law and the constitution. That is why they are not enforcing their illegal rules except to ask morons to volunteer. There have been plenty of volunteers!!!
Jerry
Reply to
Jerry Irvine
If you'd been paying attention, you'd know by now that the court has already told the ATF that they have to go through the NPRM process. That's why they're doing. And we already know that our comments are not going to change their minds, but of course if we failed to comment, they would use that against us.
Reply to
RayDunakin
Exactly!
Reply to
RayDunakin
But they did use the APA exemption. Check the federal register link and read the section with the APA exemption put right in it.
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Reply to
Boomer
As I read it, it only allowed three comments, one from the explosives industry and two others. The fact still remains that they are in no way obligated to wait to implement the final rule with the APA exemption. It's an end all get the job done clause that they took advantage of.
Reply to
Boomer
Sorry. I don't see it in Section V, "How This Document Complies With the Federal Administrative Requirements for Rulemaking", Federal Register Vol 68, No. 19 pg 4415.
Boomer wrote: > But they did use the APA exemption. Check the federal register link and > read the section with the APA exemption put right in it. > >
Reply to
David Schultz
The comments referenced in Notice 968 were to Notice 845 published in 1997. This was simply a request for comments on the changes implemented in 1990. No rules, proposed or final, were published in Notice 845.
Boomer wrote:
Reply to
David Schultz
If you *believe* they have the bigger stick, then *you* are ruled by the bigger stick.
Some of us *believe* that truth and founding principles of this nation are bigger sticks, even if it takes time. The problem lies in convincing enough of *you* out there that this is true, and should be upheld.
From what I see, I don't think Jerry has come round to your way of looking at it...
Maybe now _you_ understand the difference.
That is the ATF's position... that doesn't make them right.
~Duane Phillips.
Reply to
Duane Phillips
Laws are not bigger sticks. remember laws are only as good as the ones ENFORCING said laws.
so far it looks like congres has no interest in weilding their bigger stick in our favor.
got anything else ?
It does not matter about volunteering. if someone put a gun to your head and said eat this shit. I am not going to order you to I would like you to volunteer too.
what are you going to do ? unless you can "take him" your probably going to eat the shit. why because the consequences should he DECIDE to weild his stick are so far reaching they are just to risky.
same with ATF. if they went after any of us and use terror anywhere i their claim they would DESTROY anyone they went after. No cost them a fine not cost them a small jail sentence they would DESTROY AND RUIN them.
this is simply toomuch a risk so us "volunteers" bow to their bigger stick until it is CLEAR just how big and long that stick it. the risk otherwise is simply not acceptable.
set your self up as a dealer for Aerotech motors jerry and then start selling motors to non leup users at launches. big ones lots of them.
Let's see what happens. Can you afford it if your wrong ? it comes down to that.
Chris Taylor
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Reply to
Chris Taylor Jr
Bank Robbers invade a bank 3 of them.
HELL lets say ONE bank robber with an UZI
your all (50 of you) one one side of the room he is on the other side of the room.
one of you says lets get him he can not get us all.
Every wonder why no one moves even the guy who made the statement ?
because NO ONE wants to be the one he DOES get.
it not like a knife or fist fight where you got a reasonable chance of surviving. if the uzi guy gets you your almost certaintly DEAD.
Hence no one moves.
Same thing here. call it what you want but I call it self preservation.
With the current terror fear laiden enviroment the ATF has an UZI.
are you going to stand up in front of it and see what happens ?
I donot think so.
the risk is simply too high. SURE if enough of us stood up we could weild a bigger stick than they have but our ENTIRE HOBBY POPULATION is not big enough for that.
you need tens of thousands of people to make that work. and they need to be CLOSE. close enough that they all can not be arested easily.
we need voice and we simply do not have it.
Chris Taylor
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Reply to
Chris Taylor Jr

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