GuyNoir
Well-Known Member
<b>Joint Statement on BATF Litigation, March 17, 2006</b>
We have reviewed in more detail with counsel the Appellate Court's opinion and want to report on those discussions with members.
(a) Initial Procedure - Nothing will happen until the Appeals Court formally issues its "mandate", the legal order from the Appellate Court to the District Court. A 45 day time period must pass to allow ATF to petition the Appeals Court to rehear the case. Counsel does not believe any sound legal reasons exist to request a rehearing. ATF could also seek to appeal the decision to the United States Supreme Court. Counsel believes this is even more unlikely than a request for a rehearing; the Appeals Court decision is well reasoned, uses well established principles of administrative law, and treats the record submitted by both parties fairly.
Assuming there is no rehearing request and no appeal request is sent to the Supreme Court, the mandate would be issued about a week after the 45 day period passes. The District Court would then issue a formal order remanding the classification of APCP to BATFE.
(b) Framework for the Remand - In a February 17, 2006 posting at its website, ATF indicated that it "will be accepting the Court's offer to generate a more thorough, coherent administrative record that demonstrates the agency's efforts to test and analyze APCP as an explosive material."
We believe this work will be technically challenging for ATF.
The Appellate Court set quite clear parameters for the reconsideration analysis ATF must undertake. Specifically, the opinion dictates ATF must establish a burn rate threshold for deflagration and determine via measurable, repeatable scientifically verifiable methods that APCP meets that burn rate threshold when used in its "primary or common purpose".
Our August 30, 2002 Motion for Summary Judgment conclusively showed that APCP burn rates from actual testing ranged from 0.13 to 0.50 inches per second. Since that filing, we have collected and are prepared to present even more scientific evidence to demonstrate APCP burns at rates far below those considered to be deflagrating. Many everyday materials (e.g. gasoline, cleaning solvents) used in their "primary or common purpose" burn at rates similar to APCP and yet are not listed as regulated explosives.
Members are welcome to suggest to us additional sources for burn rate data and tests that can be used in support of our position. The independent scientific sources we have in hand are extensive, but it does not hurt to have more solid science at our disposal.
(c) Intangible Factors - Members need to keep some additional, indirect factors in mind when considering our litigation. First, the Appeals Court opinion came much faster than expected by counsel. Additionally, the opinion was unanimous. We believe ATF's legal position as regards APCP classification is quite weak. Finally, our case may well be one of the oldest on record in District Court. The Court takes its obligation to issue speedy rulings pretty seriously, and we believe they'll be tolerating no delays in pursuing any reconsideration ATF may undertake.
Counsel has been asked to insure the speediest possible progress be made by petitioning the District Court to establish firm deadlines for completion of ATF's administrative record.
(d) Cautions - We have received reports from members wondering about specific elements of ATF field inspections and license renewals. Counsel has advised that pending further court action, APCP classification and related regulatory requirements remain in effect. Member currently holding Low Explosive User Permits (LEUP) approaching renewal dates should consider proceeding with their renewals as we do not know any firm dates for court action at this time.
We also again remind members who either are threatened or receive BATFE enforcement action that they should immediately contact NAR President Mark Bundick via email ([email protected]) or at 815-477-0954 or TRA President Ken Good via email ([email protected]) or at 412-260-4223 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.
(e) Next Event - A status hearing before the District Court is tentatively on the court's schedule for July 2006. We will advise members of any planned actions around that hearing, as well as reporting on the results from there shortly after the hearing date.
(f) Congressional Support - We are quite pleased to note continued support for our efforts in the U. S. Congress. On March 16, Senator Mike Enzi, R-WY, issued a press release noting the Appeals Court ruling, and saying:
<i>
"People who build and launch model rockets for fun should not have to give up their hobby due to an unnecessary set of obstacles and an unjustified claim which classifies rocket propellant as an explosive. This safe, mind-expanding activity offers many benefits to today's youth including increased interest in math, science, and space exploration while providing them with a fun recreational activity. While this decision is not the end, it gives rocketeers firmer footing and gets them closer to enjoying their hobby without having to bear the burden of unnecessary regulation. I hope the BATFE will see clear to give those law-abiding citizens the space they deserve and that in the end rocketeers will enjoy the same freedoms with their hobby as rock collectors and scrap-bookers enjoy with theirs."
</i>
(g) Summary - As always, we appreciate the comments, input and support of NAR and TRA members in this fight. And, as our case proceeds, we will continue to need your financial support to build on this victory. We urge you to click here:
<url> https://secure.consumersinterest.com/nar/NARfrompres9911.html#donorform"
</url>
to make a donation to the Legal Defense Fund today, in whatever amount you possibly can contribute. 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 report them here and in our publications, as soon as possible.
Mark Bundick, President
National Association of Rocketry
Ken Good, President
Tripoli Rocketry Association
We have reviewed in more detail with counsel the Appellate Court's opinion and want to report on those discussions with members.
(a) Initial Procedure - Nothing will happen until the Appeals Court formally issues its "mandate", the legal order from the Appellate Court to the District Court. A 45 day time period must pass to allow ATF to petition the Appeals Court to rehear the case. Counsel does not believe any sound legal reasons exist to request a rehearing. ATF could also seek to appeal the decision to the United States Supreme Court. Counsel believes this is even more unlikely than a request for a rehearing; the Appeals Court decision is well reasoned, uses well established principles of administrative law, and treats the record submitted by both parties fairly.
Assuming there is no rehearing request and no appeal request is sent to the Supreme Court, the mandate would be issued about a week after the 45 day period passes. The District Court would then issue a formal order remanding the classification of APCP to BATFE.
(b) Framework for the Remand - In a February 17, 2006 posting at its website, ATF indicated that it "will be accepting the Court's offer to generate a more thorough, coherent administrative record that demonstrates the agency's efforts to test and analyze APCP as an explosive material."
We believe this work will be technically challenging for ATF.
The Appellate Court set quite clear parameters for the reconsideration analysis ATF must undertake. Specifically, the opinion dictates ATF must establish a burn rate threshold for deflagration and determine via measurable, repeatable scientifically verifiable methods that APCP meets that burn rate threshold when used in its "primary or common purpose".
Our August 30, 2002 Motion for Summary Judgment conclusively showed that APCP burn rates from actual testing ranged from 0.13 to 0.50 inches per second. Since that filing, we have collected and are prepared to present even more scientific evidence to demonstrate APCP burns at rates far below those considered to be deflagrating. Many everyday materials (e.g. gasoline, cleaning solvents) used in their "primary or common purpose" burn at rates similar to APCP and yet are not listed as regulated explosives.
Members are welcome to suggest to us additional sources for burn rate data and tests that can be used in support of our position. The independent scientific sources we have in hand are extensive, but it does not hurt to have more solid science at our disposal.
(c) Intangible Factors - Members need to keep some additional, indirect factors in mind when considering our litigation. First, the Appeals Court opinion came much faster than expected by counsel. Additionally, the opinion was unanimous. We believe ATF's legal position as regards APCP classification is quite weak. Finally, our case may well be one of the oldest on record in District Court. The Court takes its obligation to issue speedy rulings pretty seriously, and we believe they'll be tolerating no delays in pursuing any reconsideration ATF may undertake.
Counsel has been asked to insure the speediest possible progress be made by petitioning the District Court to establish firm deadlines for completion of ATF's administrative record.
(d) Cautions - We have received reports from members wondering about specific elements of ATF field inspections and license renewals. Counsel has advised that pending further court action, APCP classification and related regulatory requirements remain in effect. Member currently holding Low Explosive User Permits (LEUP) approaching renewal dates should consider proceeding with their renewals as we do not know any firm dates for court action at this time.
We also again remind members who either are threatened or receive BATFE enforcement action that they should immediately contact NAR President Mark Bundick via email ([email protected]) or at 815-477-0954 or TRA President Ken Good via email ([email protected]) or at 412-260-4223 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.
(e) Next Event - A status hearing before the District Court is tentatively on the court's schedule for July 2006. We will advise members of any planned actions around that hearing, as well as reporting on the results from there shortly after the hearing date.
(f) Congressional Support - We are quite pleased to note continued support for our efforts in the U. S. Congress. On March 16, Senator Mike Enzi, R-WY, issued a press release noting the Appeals Court ruling, and saying:
<i>
"People who build and launch model rockets for fun should not have to give up their hobby due to an unnecessary set of obstacles and an unjustified claim which classifies rocket propellant as an explosive. This safe, mind-expanding activity offers many benefits to today's youth including increased interest in math, science, and space exploration while providing them with a fun recreational activity. While this decision is not the end, it gives rocketeers firmer footing and gets them closer to enjoying their hobby without having to bear the burden of unnecessary regulation. I hope the BATFE will see clear to give those law-abiding citizens the space they deserve and that in the end rocketeers will enjoy the same freedoms with their hobby as rock collectors and scrap-bookers enjoy with theirs."
</i>
(g) Summary - As always, we appreciate the comments, input and support of NAR and TRA members in this fight. And, as our case proceeds, we will continue to need your financial support to build on this victory. We urge you to click here:
<url> https://secure.consumersinterest.com/nar/NARfrompres9911.html#donorform"
</url>
to make a donation to the Legal Defense Fund today, in whatever amount you possibly can contribute. 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 report them here and in our publications, as soon as possible.
Mark Bundick, President
National Association of Rocketry
Ken Good, President
Tripoli Rocketry Association
