|
WASHINGTON, District of Columbia USA — On March 19, 2004, United States District Court Judge Reggie B. Walton issued his Memorandum Opinions and Order regarding civil action No. 00-273; Tripoli Rocketry Association versus BATFE.
The documents in PDF Format can be accessed at the following URLs
http://www.hipower-rocketry.com/documents/61.pdf
http://www.hipower-rocketry.com/documents/62.pdf
In a nutshell:
The BATFE won the ruling that APCP is in fact, a deflagrating explosive, and they are operating within their scope to list is as such.
Although the court agreed that rocket motors do not fit the definition of a "Propellant Actuated Device," the court found that the BATFE's pronouncement that sport rocket motors are not PAD's was invalid because it was made without compliance to the notice and comment rule making procedures (NPRM) of the OCCA and the APA.
(It is a given that BATFE will rectify this situation in the near future with the issuance of a NPRM.)
The court stayed ruling on counts four and five of the TRA complaint "establishing thresholds for the regulation of certain APCP rocket motors based upon their weight, design or intended use without first affording the public an opportunity to comment upon such thresholds" (i.e. the now infamous 62.5 gram weight limit debate) pending the completion of the current NPRM 968 establishing this threshold.
What does all of this mean?
APCP is an explosive, and the BATFE was and is currently within their right to classify it as such.
End of discussion.
NAR and TRA counsel argued in the lawsuit that rocket motors are a Propellant Actuated Device (PAD) and as such, are exempt from regulation under BATFE's control.
The judge ruled, in essence: "Rocket motors don't fit the literal definition of a PAD, and are not exempt from regulation.
However, the BATFE was wrong in classifying them as non-compliant, because they didn't follow the rules in filing a NPRM first." Even though the court admonished the BATFE for this oversight, it is almost a certainty that the BATFE will close this loophole quickly by pushing through another NPRM addressing this issue in the near future.
By staying the ruling on the issue of regulation based upon propellant weight until the current NPRM 968 process is complete, the court sealed the fate of high power rocketry as we now know it.
When the current NPRM 968 is passed, in essence, "Model rocket motors consisting of APCP, black powder or similar low explosives, containing no more than 62.5 grams of total propellant weight and designed as single use motors or as reload kits capable of reloading no more than 62.5 grams of propellant into a re-useable motor casing" will be exempt.
Upon passage, NPRM 968 will effectively eliminate flying high power rocket motors without a LEUP or LUP. If a motor in its ASSEMBLED state contains more than 62.5 grams total weight of APCP propellant, then you will be required to have an LEUP or LUP, and provide for storage under the current provisions of the Homeland Security Act.
It should be noted that if one reviews the past history and batting record of past NPRM's, it is apparent that very, very few have ever been challenged successfully, or have been revised mid-stream. In other words, the current NPRM regarding total weight regulation is pretty much a given. You can pretty much bank on it passing in the near future.
Everything now will depend upon the contents of the pending BATFE NPRM 968.
An administrative ruling can effectively disregard any comment. Now that the ambiguity of APCP has been legally removed by Judge Walton's ruling, the BATFE would not have to work very hard to argue further restrictions on its access and use. An appeal to the recent ruling could be made. However, any appeal will have to focus on process, not finding of fact. Judge Walton's ruling appears to be complete.
There still may be hope in the filing of a higher exemption via the rule making process, (i.e. the 0.9 pound limit discussed on various rocketry discussion forums which exempts "Easy Access" motors) but after this court ruling, it is clear that BATFE is firmly in control of the situation.
What about relief through the legislature?
At present, it is doubtful anything will happen this year, considering the current situation with the 9/11 Commission and the upcoming presidential elections.
Keep in mind that the original bill stalled in committee last year. Would a renewed effort be expected to fare any better?
Bottom Line: - Get your LEUP or LUP now.
- Storage issues? Consider contingent storage with an individual who already has established, approved storage.
- After NPRM 968 passes, you will still be able to fly up to G impulse motors without a permit, so long as the total, assembled weight of APCP does not exceed 62.5 grams.
It's not all doom and gloom, and the hobby is far from dead.
We are just going to have to get used to someone other than NAR and TRA policing us from now on. |
