NAR PREZ - Joint Statement on BATFE Issues, October 9, 2006

[GuyNoir]

Joint Statement on BATFE Issues, October 9, 2006

This message will report on the BATFE’s Notice of Proposed Rule Making (NPRM) on the definition of propellant actuated devices (PADS)and our October 17 hearing in US District Court.

Notice of Proposed Rulemaking

On August 11, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) published in the Federal Register a proposed rule to state that hobby rocket motors are not propellant actuated devices (PADS). If accepted as a final rule after public notice and comment, HPR rocket motors would be subject to all applicable licensing and controls under Federal explosives law, the legally promulgated regulations, and ATF policy rulings.

You can download the full text of the proposed rule, including information telling you where to file your comments by clicking here

https://tinyurl.com/gejpp

IT IS CRITICALLY IMPORTANT, BOTH FOR THIS PROPOSED RULE, AND FOR OUR ONGOING LITIGATION EFFORT THAT ALL MEMBERS COMMENT OPPOSING THIS NPRM.

We have reviewed the NPRM with counsel and offer the following suggestions for making responses:

1. Airbag manufacturers have been treated differently re: a PADS determination. In their June 1997, the ATF states that airbag manufacturers must have an explosive manufacturing license, yet state in the NPRM that airbags are PADS.

2. There are no clear technical standards for previous PADS classifications listed in the NPRM.

3. Congress did not specify that mechanism, metal work or inclusion in, exclusion from or stand alone was a requirement for PADS.

4. ATF has not established a clear process for application, review, adjudication and appeal for parties seeking a PADS definition for their devices..

5. Rocket motors, as used in practice, have parallel operation similar to other devices, listed by BATFE as PADS. Other devices function as part of a larger whole, and rely on other interacting components, just as rocket motors do.

6. ATF has previously exempted equivalent rocket motors used in aircraft safety systems from regulation. Details on these systems can be found at https://www.brsparachutes.com/default.aspx

7. The proposed regulation will have impacts per the Small Business Regulatory Enforcement Fairness Act of 1996, adversely affecting United States-based companies’ ability to compete abroad.

Public comments are due not later than November 9, 2006, and must be delivered in writing to:

James P. Ficaretta, Program Manager
Room 5250
Bureau of Alcohol, Tobacco, Firearms, and Explosives
P.O. Box 50221
Washington, DC 20091-0221

ATTN: ATF 9P.

Written comments must include your mailing address and be signed, and
may be of any length..

We invite members to provide us with additional suggestions, ideas and approaches, along with references to any other written material they may discover in researching their response to the NPRM. As we compile those suggestions, we’ll issue an additional message to members outlining these additional approaches.

October 17, 2006 Court Hearing

This hearing is one in a series of status conferences before the US District Court. As its stated purpose is for BATFE to report on progress it has made regarding its testing of APCP and reporting of those tests, counsel does not expect the Court to issue any rulings or orders based on this hearing. The most likely outcome from the hearing is for the Court to schedule both parties to submit cross motions for summary judgment on the issue of whether or not APCP functions by explosion. We would caution members against further speculation about the possible outcomes from this hearing, and will report on the hearing within a week of its conclusion.

We appreciate your strong financial support for this important legal work. As we head into this critical October hearing, with our case still pending and hanging in the balance, we hope you will continue to consider donating in whatever amount you can to the Legal Defense Fund. Your support and generosity will be recognized and acknowledged, and you'll be able to say "I supported the fight for an unregulated sport rocket hobby."

When we have further developments, we'll continue to report them here and in our publications.

Mark Bundick, President
National Association of Rocketry

Ken Good, President
Tripoli Rocketry Association

 

[CQBArms]

The ATF always does this kind of stuff. If you thought you had problems, try building machine guns or grenades for a living.

That being said, write them...write them....write them again. CC your congress critter (it doesn't cost much) and at some point they will "get it" and actually figure out that this is a hobby and a sport...not some WMD.

 

[BARX2]

Mark, thank you very much for you hard work on this issue. Although I do not use form letters for contacting legislators, I don't think I could write a sensible letter to my congressman based on the legalese in the joint statement. Could you provide some talking points in layman's terms that we could use when writing to our representatives? Thank you.

 

[GuyNoir]

Originally posted by BARX2
Mark, thank you very much for you hard work on this issue. Although I do not use form letters for contacting legislators, I don't think I could write a sensible letter to my congressman based on the legalese in the joint statement. Could you provide some talking points in layman's terms that we could use when writing to our representatives? Thank you.

(a) Do not write Congress. You need to respond ONLY to the address given in the Joint Statement.

(b) If you don't feel confident writing additional language around the points, simply use the points as listed, and begin the letter with something like "I"m a rocketeer and member of the National Association of Rocketry. I fully support their position on this NPRM. "

Then quote the points in the Joint Statement.

Come on, folks.

We really need your help on this.

 

[BARX2]

Will do - and thanks again.

 

[rcktman]

BATFE states that:

E. Small Business Regulatory
Enforcement Fairness Act of 1996
This proposed rule is not a major rule
as defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. 5 U.S.C. 804. This
proposed rule will not result in an
annual effect on the economy of $100
million or more; a major increase in
costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
companies to compete with foreign based
companies in domestic and
export markets.

This implies that they must have done some sort of analysis to back this claim. We should file a FOIA request for a copy of this analysis.

Anybody want to bet that they are just making this up?

 

[m85476585]

I think it's funny how they use the dictionary definition so literally when they give reasons a rocket motor is not a PAD, like
"[...]and because it is not a metal-shaping machine or a part thereof."

and

"Webster’s defines ‘‘generator’’ as ‘‘an apparatus in which vapor or gas is formed’’ and as ‘‘a machine by which
mechanical energy is changed into electrical energy.’’"

which leads them to conclude:

"Finally, because it has no interacting mechanical or electrical components, the hobby rocket motor cannot be deemed to be a gas generator system."

To me "generator" in "gas generator system" implies that it is a device that generates, or creates something, NOT a generator as in something you would use to provide electricity during a power failure.

 

[m85476585]

Would there be any benefit in saying something like their attitude toward rocketry is unfair (like regulating igniters), or should we just give reasons we oppose this specific law (more fact-based rather than opinion-based)?

Which leads to another question: It this the rule that will enable them to start regulating rocket motors tomorrow? If it gets rejected, and rocket motors continue to be PADs will we be completely exempt?

 

[GuyNoir]

Originally posted by m85476585
Would there be any benefit in saying something like their attitude toward rocketry is unfair (like regulating igniters), or should we just give reasons we oppose this specific law (more fact-based rather than opinion-based)?

Please stick to the topics covered by the NPRM. Adding additional "stuff" like igniters will not help.

Which leads to another question: It this the rule that will enable them to start regulating rocket motors tomorrow? If it gets rejected, and rocket motors continue to be PADs will we be completely exempt?

NPRM's aren't accepted and rejected. The process is such that the agency proposes a rule, citing the statue under which they have authority to do so, and soliciting inputs as to why folks think the rule is good or bad. The agency is under NO obligation to do anything, nor is there a fixed time frame by when they have "do something".

In this case, the Court ruled that ATF prononcements that rocket motors are not PADS were illegal. This NPRM is the response to that ruling, and will, if put into effect after notice and comment, take care of the court's objections.

I also received a private comment asking if folks should send multiple letters, i.e. a "vote early and often" strategy. The answer is a very definite NO. That will not help, and you need send only a single letter.

 

[AKPilot]

Originally posted by m85476585
Would there be any benefit in saying something like their attitude toward rocketry is unfair (like regulating igniters), or should we just give reasons we oppose this specific law (more fact-based rather than opinion-based)?

Where a lot of people go wrong with challenging legal issues, is that it becomes more emotional than based on facts. That is, saying something about their attitude is strictly an opinion - an emotional plea.

Now if you were to state that: law "A" is being enforced one way for one company/hobby, and the same law "A" is being enforced another way for a different company/hobby then you have something; the law is not being enforced equally.

Just stick to factual information that can be quantified. As a professional mediator, on the side, I can honestly say that when someone starts becoming emotional I start tuning out, and start thinking how I can steer the issue back towards factual information.

 

[GuyNoir]

Originally posted by m85476585
To me "generator" in "gas generator system" implies that it is a device that generates, or creates something, NOT a generator as in something you would use to provide electricity during a power failure.

Comments like this are EXACTLY what you need to put in your letter.

Who's got more good material like this?

 

[sylvie369]

Mine is going in the mail this morning. Thanks, Bunny.

 

[WillMarchant]

I was struck by the use of the Merriam-Webster’s Collegiate Dictionary as the source for the definition of gas generator. It is inappropriate to use such a dictionary to define terms commonly used in a specialist field such as rocketry. A much better source is the 7th edition of Rocket Propulsion Elements by George P. Sutton where you will see in the index “Gas generator; see also Liquid propellant rocket engine; Solid propellant rocket motor.”

 

[dixontj93060]

Mine is in the mailbox.

 

[sylvie369]

Originally posted by WillMarchant
I was struck by the use of the Merriam-Webster’s Collegiate Dictionary as the source for the definition of gas generator. It is inappropriate to use such a dictionary to define terms commonly used in a specialist field such as rocketry. A much better source is the 7th edition of Rocket Propulsion Elements by George P. Sutton where you will see in the index “Gas generator; see also Liquid propellant rocket engine; Solid propellant rocket motor.”

[playing professor here, peering down over glasses on the end of his nose...]

Indeed. My students often try to put dictionary definitions into their papers. I invariably have them start over, and go directly to the literature in the field.

Note also that the definition chosen for "tool" was only one of several from that dictionary, and of course the others would undermine the case (as they clearly do apply to our motors).

Oddly enough, it appears that what the ATF is doing with those definitions is trying to figure out what was meant by those words...which were written by the ATF.

I think they fail to make their case, for the reasons Bunny laid out, but furthermore, if the issue is that the ATF cannot make law, then the words to be "decoded" are simply "propellant actuated device" (written by the legislators), not all of that fancy "any tool or special mechanized device..." stuff (written by the ATF).

I suppose I may have missed the entire point here in my brief reading, though. I'm sure someone will jump in.

 

[CQBArms]

It is an accepted and common legal approach to use the dictionary as such. It "levels" the playing field and universal in application.

Originally posted by WillMarchant
I was struck by the use of the Merriam-Webster’s Collegiate Dictionary as the source for the definition of gas generator. It is inappropriate to use such a dictionary to define terms commonly used in a specialist field such as rocketry. A much better source is the 7th edition of Rocket Propulsion Elements by George P. Sutton where you will see in the index “Gas generator; see also Liquid propellant rocket engine; Solid propellant rocket motor.”

 

[Hospital_Rocket]

 

[sylvie369]

Originally posted by narprez
Comments like this are EXACTLY what you need to put in your letter.

Who's got more good material like this?

I don't know if this was good material, but it's what I sent (below). Pick it apart if you must, to make the remaining letters better (I'm sure I'm off the mark at least once here):
========================
James P. Ficaretta, Program Manager
Room 5250
Bureau of Alcohol, Tobacco, Firearms, and Explosives
P.O. Box 50221
Washington, DC 20091-0221

Public comment regarding
Docket ATF 9P
AG Order Number 2830-2006

I am a member of the National Association of Rocketry, and am writing this comment in support of the Association's position regarding the ATF's proposal to "clarify" the exemption for propellant actuated devices. As I understand it, the issue is that the Congress enacted the exemption, which has been taken to include model rocket motors and reload kits, and the ATF wants to exclude those motors and reload kits from the exemption. The ATF argues that those motors and kits do not meet the definition of "propellant actuated device" that they put into the code (27 CFR 555.11) in 1981:

"any tool or special mechanized device or gas generator system which is actuated by a propellant or which release and directs work through a propellant charge".

There are thus six kinds of things covered by this definition:

1. A tool which is actuated by a propellant
2. A tool which release and directs work through a propellant charge

3. A special mechanized device which is actuated by a propellant
4. A special mechanized device which release and directs work through a propellant charge

5. A gas generator system which is actuated by a propellant
6. A gas generator system which release and directs work through a propellant charge

If the motors and reload kits in question meet any one of these definitions, they are propellant actuated devices, and therefore exempt. Using dictionary definitions, the ATF argues in this proposal that they do not meet any of these definitions. The nature of the argument makes it quite clear that the ATF's intention in the proposal is not "clarification", but regulation, and in fact that if one takes a more neutral stance, the devices in question clearly do meet several and perhaps all of these six definitions.

The point is made most clearly with respect to #5 and #6: a motor rocket motor clearly is a gas generator system, it clearly is actuated by a propellant, and it clearly releases and directs work through a propellant charge. ATF's argument to the contrary is simply false: "Finally, because it has no interacting mechanical or electrical components, the hobby rocket motor cannot be deemed to be a 'gas generator system". A hobby rocket motor does have interacting mechanical components, including a carefully chosen nozzle, liners and often o-rings and washers to contain the pressure and protect outer casings, and various components designed to actuate the rocket's recovery system safely. These parts are not interchangeable between different kinds of rocket motors: they interact to maintain proper pressure, among other things. One cannot simply stuff propellant into a cylinder, as the ATF suggests, ignite it, and expect it to perform as a model rocket motor. Hence the devices in question do meet the fifth and sixth of the parts of the definition of "propellant actuated device".

In a slightly more active piece of sleight-of-hand, the ATF chooses a particularly narrow definition of "tool" in order to exclude the devices in question from the first and second parts of the definition, pointing out that they are "neither 'handheld' nor a complete 'device' and because it is not a metal-shaping machine nor a part thereof". Even if we accept that definition, the devices in question meet the definition as well as do other devices that apparently retain their exemption, most notably "diesel and jet engine starter cartridges" and "inflatable automobile occupant restraint systems".

Similar arguments apply to the third and fourth parts of the definition above ("special mechanized device"): if the definitions are made narrow enough to exclude model rocket motors and reload kits then they also logically exclude other devices that apparently will retain their exemptions.

It is abundantly clear that the ATF's intention in this proposal is not clarification of existing regulation but rather the creation of new regulation, something that the ATF is not empowered to do. I respectfully ask that this rule change be rejected, and that the devices in question retain their exemption as propellant actuated devices.

 

[tquigg]

So much for anything being decided in court this time.

 

[AKPilot]

Originally posted by tquigg
So much for anything being decided in court this time.

Is there some other news I haven't heard? I thought the court date wasn't until the 17th?

 

[davel]

Has the BATFE turned over their burn rate report to the court yet, or are they waiting until Oct 17th to do so? How about the NAR/TRA report - has that been turned over to Judge Walton yet or is it being held until the 17th?

 

[tquigg]

I was referring to this portion of Mark's post...

counsel does not expect the Court to issue any rulings or orders based on this hearing. The most likely outcome from the hearing is for the Court to schedule both parties to submit cross motions for summary judgment on the issue of whether or not APCP functions by explosion.

From this, it would appear that our council does not anticipate a decision being made... just filing motions.

 

[SwingWing]

Originally posted by tquigg
I was referring to this portion of Mark's post...

counsel does not expect the Court to issue any rulings or orders based on this hearing. The most likely outcome from the hearing is for the Court to schedule both parties to submit cross motions for summary judgment on the issue of whether or not APCP functions by explosion.

From this, it would appear that our council does not anticipate a decision being made... just filing motions.

Yep, It appears that the 17th is just the date that the BATFE's homework is due. We won't hear anything right away.......

 

[ghp3]

Has the BATFE turned over their burn rate report to the court yet, or are they waiting until Oct 17th to do so? How about the NAR/TRA report - has that been turned over to Judge Walton yet or is it being held until the 17th?

Earlier today, the ATF filed a written status report with the court. On the issue of their testing of APCP, they write:

"ATF has collected, reviewed, and analyzed testing data on the reaction rate of ammonium perchlorate composite propellant (“APCP”) from the United States Air Force Research Laboratory (“AFRL”) and ATF’s own Fire Research Laboratory. On or about August 2, 2006, Plaintiffs (TRA/NAR) forwarded their own test data to ATF, through its undersigned counsel. ATF received the final report form (sic) the AFRL on August 22, 2006. ATF currently expects to adopt its position on or about October 13, 2006, and will provide it to the Court promptly after finalizing its decision."

"Undersigned counsel (for the ATF) contacted counsel for plaintiffs to discuss how the parties might proceed in this litigation under various scenarios. Once the ATF issues its decision, counsel for the parties will confer further and, if they are able to reach agreement, they will jointly present a proposed schedule either before or at the status conference on October 17, 2006."

They also mention the status of their "ongoing agency rulemakings" by mentioning the final rule on hobby rocket motors (which went into effect yesterday), and the proposed rule on the PAD exemption.

It doesn't say anything about the AFRL final report having been shared with our lawyers. Was it?

So we continue to wait.

ghp3
TRA L2

 

[CQBArms]

They have to share the data UNLESS it's part of an ongoing criminal investigation or some national security issue. They are, however, very slow in the sharing sometimes and tend to drag their heels. I've seen it happe in a few machine gun related cases.

Just a small example:
https://www.jpfo.org/truscott.pdf

Originally posted by ghp3
Earlier today, the ATF filed a written status report with the court. On the issue of their testing of APCP, they write:

"ATF has collected, reviewed, and analyzed testing data on the reaction rate of ammonium perchlorate composite propellant (“APCP”) from the United States Air Force Research Laboratory (“AFRL”) and ATF’s own Fire Research Laboratory. On or about August 2, 2006, Plaintiffs (TRA/NAR) forwarded their own test data to ATF, through its undersigned counsel. ATF received the final report form (sic) the AFRL on August 22, 2006. ATF currently expects to adopt its position on or about October 13, 2006, and will provide it to the Court promptly after finalizing its decision."

"Undersigned counsel (for the ATF) contacted counsel for plaintiffs to discuss how the parties might proceed in this litigation under various scenarios. Once the ATF issues its decision, counsel for the parties will confer further and, if they are able to reach agreement, they will jointly present a proposed schedule either before or at the status conference on October 17, 2006."

They also mention the status of their "ongoing agency rulemakings" by mentioning the final rule on hobby rocket motors (which went into effect yesterday), and the proposed rule on the PAD exemption.

It doesn't say anything about the AFRL final report having been shared with our lawyers. Was it?

So we continue to wait.

ghp3
TRA L2

 

[mrbusdriver]

Just a bump...

I'm working on my letter. Does using the e-mail option lessen the impact?

Dave

 

[GuyNoir]

Originally posted by mrbusdriver
Just a bump...

I'm working on my letter. Does using the e-mail option lessen the impact?

Dave

No, but counsel has previously advised on other NPRM responses that paper is probably better due to the lack, in general, of government's sophistication with electronic media.

Also note that if you do file electronically, there are some specific things that must be included in your email. Check the NPRM itself for details.

 

[jadebox]

Originally posted by ghp3
"Undersigned counsel (for the ATF) contacted counsel for plaintiffs to discuss how the parties might proceed in this litigation under various scenarios. Once the ATF issues its decision, counsel for the parties will confer further and, if they are able to reach agreement, they will jointly present a proposed schedule either before or at the status conference on October 17, 2006."

I'm may be too optimistic, but I find this comment encouraging.

Maybe someone here can tell us if this is boilerplate langauge which is always used in cases like this or if it's really a sign that the ATF may be offering to work with us to come up with a reasonable compromise.

-- Roger

 

[mrbusdriver]

That would be a positive development if it's so, IMHO. I mentioned in the (draft) letter that it would make sense to make use of the rocketry community's expertise in putting together such regulations. The current Proposal seems rather "arbitrary".

Dave

 

[GuyNoir]

Originally posted by jadebox
IMaybe someone here can tell us if this is boilerplate langauge which is always used in cases like this or if it's really a sign that the ATF may be offering to work with us to come up with a reasonable compromise.

This statement is simply about scheduling, folks. There's no "compromise" in the works, and certainly none suggested by ATF.