GuyNoir
Well-Known Member
Joint Statement on BATFE Issues, October 30, 2006
This message will report on the October 17, 2006 court hearing and next steps in our litigation against the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE).
Remaining Events Schedule and Supporting Comments
This hearing established a fixed schedule for remaining actions on Count 1 of the lawsuit regarding the classification of APCP as a regulated explosive.
By October 31, 2006, BATFE must file with the court any and all additional material to the administrative record on its determination of APCP as an explosive. Both counsel and members will have opportunity to review this material.
Contrary to some reports, we did NOT receive the administrative record prior to the October 17 hearing.
By December 18, 2006, we will file an amendment to our complaint to reflect the new material in the administrative record. This filing is a legal technicality, and ATF has no objection to it, given they have amended the administrative record with their test data.
Both we and BATF will then file cross motions for summary judgment by January 31, 2007.
Motions in response and opposition to those summary judgment motions are due to the court by February 28, and responses in reply to objections are due March 23, 2007.
(Long term members will recall that this process is exactly the same as was done with the original complaint filed in 2000, but since we won the original adjudication on appeal, we have to begin this process again.).
After these three filings, the court will be in a position to rule on Count 1.
If the court needs to be briefed on any material in these three filings, we believe that oral briefing would occur as part of a July 27, 2007 status conference.
Assuming Judge Walton does not need to be briefed, a Count 1 ruling could be issued any time after the March 23, 2007 filings. However, Judge Waltons docket is extremely crowded, with over 150 motions pending in his court. Members may also be aware that his courtroom has been assigned the trial of former Chief of Staff to the Vice President, Lewis Scooter Libby, a high visible prosecution.
We have received questions from members about the length of this process. There is a real backlog in the Federal courts, and our case is not fundamentally different in timing than any others pending in the DC Circuit. We are simply part of the backlog, and there is little counsel or the courts can do about it.
Additional Comments on Counts 4 and 5.
Counts 4 and 5 deal with our assertion that BATFE illegally attempted to regulate sport rocket motors by setting a propellant weight limit and a determination on the definition of propellant actuated devices without notice and comment rulemaking. These counts are still pending before Judge Waltons court, even with the BATFEs issuance of a final rule on the 62.5 gram limit. Should we prevail on Count 1, these two items will become moot, as APCP would be removed from the BATFEs list of regulated explosives. Until Count 1 is adjudicated, we do not expect the court to set a briefing or hearing schedule on these two counts.
Notice of Proposed Rulemaking
COUNSEL HAS REPEATEDLY ADVISED THAT RESPONDING TO THE AUGUST 11 NPRM ON PROPELLANT ACTUATED DEVICES IS CRITICAL TO OUR POSITION, AND URGES, IN THE STRONGEST LANGUAGE POSSIBLE, MEMBERS TO RESPOND IN OPPOSITION TO THIS NPRM.
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. Complete information on this NPRM, including suggested responses and filing instructions can be found here (website link). Any rule adopted as a result of this NPRM would be nullified if we prevail on Count 1. However, we must be prepared to address all outcomes, and a forceful member response to this NPRM is needed.
Case Duration and Financial Support
We understand the frustration and anxiety experienced by members given the duration of this litigation.
Both of us have expended unprecedented amount of time, energy and money in our volunteer work on this litigation and frankly are as impatient and frustrated as our members with the extended timeframe outlined here.
However, we remain committed to the process because it represents the best, and currently the only, way to fight for an unregulated sport rocket hobby. Our case is still very strong, and we are now in a position to bring our strongest arguments, our science, to bear on the case. With an end in sight to the most critical point in the litigation, we continue to urge members to donate to the Legal Defense Fund.
The year is ending, and now is a particularly good time to consider charitable donations as part of your year end tax planning. And continue to know that we appreciate the excellent, steady support provided by members thus far. Every dollar you can donate puts us a bit closer to our goal of freeing the hobby from over burdensome, unnecessary and illegal regulation. With our case still pending consider donating in whatever amount you can to the Legal Defense Fund at:
https://secure.consumersinterest.com/nar/NARfrompres9911.html#donorform
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
This message will report on the October 17, 2006 court hearing and next steps in our litigation against the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE).
Remaining Events Schedule and Supporting Comments
This hearing established a fixed schedule for remaining actions on Count 1 of the lawsuit regarding the classification of APCP as a regulated explosive.
By October 31, 2006, BATFE must file with the court any and all additional material to the administrative record on its determination of APCP as an explosive. Both counsel and members will have opportunity to review this material.
Contrary to some reports, we did NOT receive the administrative record prior to the October 17 hearing.
By December 18, 2006, we will file an amendment to our complaint to reflect the new material in the administrative record. This filing is a legal technicality, and ATF has no objection to it, given they have amended the administrative record with their test data.
Both we and BATF will then file cross motions for summary judgment by January 31, 2007.
Motions in response and opposition to those summary judgment motions are due to the court by February 28, and responses in reply to objections are due March 23, 2007.
(Long term members will recall that this process is exactly the same as was done with the original complaint filed in 2000, but since we won the original adjudication on appeal, we have to begin this process again.).
After these three filings, the court will be in a position to rule on Count 1.
If the court needs to be briefed on any material in these three filings, we believe that oral briefing would occur as part of a July 27, 2007 status conference.
Assuming Judge Walton does not need to be briefed, a Count 1 ruling could be issued any time after the March 23, 2007 filings. However, Judge Waltons docket is extremely crowded, with over 150 motions pending in his court. Members may also be aware that his courtroom has been assigned the trial of former Chief of Staff to the Vice President, Lewis Scooter Libby, a high visible prosecution.
We have received questions from members about the length of this process. There is a real backlog in the Federal courts, and our case is not fundamentally different in timing than any others pending in the DC Circuit. We are simply part of the backlog, and there is little counsel or the courts can do about it.
Additional Comments on Counts 4 and 5.
Counts 4 and 5 deal with our assertion that BATFE illegally attempted to regulate sport rocket motors by setting a propellant weight limit and a determination on the definition of propellant actuated devices without notice and comment rulemaking. These counts are still pending before Judge Waltons court, even with the BATFEs issuance of a final rule on the 62.5 gram limit. Should we prevail on Count 1, these two items will become moot, as APCP would be removed from the BATFEs list of regulated explosives. Until Count 1 is adjudicated, we do not expect the court to set a briefing or hearing schedule on these two counts.
Notice of Proposed Rulemaking
COUNSEL HAS REPEATEDLY ADVISED THAT RESPONDING TO THE AUGUST 11 NPRM ON PROPELLANT ACTUATED DEVICES IS CRITICAL TO OUR POSITION, AND URGES, IN THE STRONGEST LANGUAGE POSSIBLE, MEMBERS TO RESPOND IN OPPOSITION TO THIS NPRM.
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. Complete information on this NPRM, including suggested responses and filing instructions can be found here (website link). Any rule adopted as a result of this NPRM would be nullified if we prevail on Count 1. However, we must be prepared to address all outcomes, and a forceful member response to this NPRM is needed.
Case Duration and Financial Support
We understand the frustration and anxiety experienced by members given the duration of this litigation.
Both of us have expended unprecedented amount of time, energy and money in our volunteer work on this litigation and frankly are as impatient and frustrated as our members with the extended timeframe outlined here.
However, we remain committed to the process because it represents the best, and currently the only, way to fight for an unregulated sport rocket hobby. Our case is still very strong, and we are now in a position to bring our strongest arguments, our science, to bear on the case. With an end in sight to the most critical point in the litigation, we continue to urge members to donate to the Legal Defense Fund.
The year is ending, and now is a particularly good time to consider charitable donations as part of your year end tax planning. And continue to know that we appreciate the excellent, steady support provided by members thus far. Every dollar you can donate puts us a bit closer to our goal of freeing the hobby from over burdensome, unnecessary and illegal regulation. With our case still pending consider donating in whatever amount you can to the Legal Defense Fund at:
https://secure.consumersinterest.com/nar/NARfrompres9911.html#donorform
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
