Rocketry Planet

POCATELLO, Idaho USA — On April 30th, 2007, United States District Court Judge B. Lynn Winmill signed the death warrant for Firefox Enterprises, Inc. in a case brought by the U.S. Consumer Product Safety Commissions (CPSC) and on which Judge Winmill had previously issued a ruling calling for the parties to reach a working agreement.

Most death warrants are for the immediate termination of life, in a manner as humane as possible, under the circumstances, that is. This explains the rise of chemically-induced death sentences in the U.S. over the more archaic forms of electrocution or hanging. But Judge Winmill's sentence for Firefox did not call for the immediate termination of life — it called for a deliberate and torturous continuation of business based on the judge's order of what Firefox will be and will not be allowed to do. For all practical purposes, Firefox is dead.

For amateur rocketry enthusiasts nationwide, the interest in this case has been high, since Firefox Enterprises and similar companies have been the source for chemicals known as "oxidizers" and "fuels" that are combined to produce experimental research rocket motors. This case, immediately for Firefox and certainly to follow for other similar suppliers, may spell the end of availability of those products, creating a serious effect for amateur and experimental rocketeers nationwide.

On December 6, 2006, Judge Winmill issued a ruling that directed Firefox and CPSC to negotiate a mutually acceptable plan for the enforcement of regulations and applicable law which CPSC has the authority to enforce. Whereas hobby rocketry enthusiasts are more commonly affected by the governmental oversight of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) due to the use of commercially manufactured propellant, CPSC's case against Firefox is unique in that none of the chemicals it sells is considered an explosive.

Firefox is not regulated by the ATF. ATF regulations and the federal Explosives Control Act only apply to the commerce and storage of explosives, of which the ATF publishes a list annually. Nothing that Firefox sells is found on the ATF List of Explosives. And, nothing Firefox sells meets the definition of an explosive. The company merely sells individual chemicals that can be combined to make a chemical composition that can meet the definition of an explosive.

On the other hand, the CPSC was created by Congress to reduce or eliminate injuries to consumers caused by dangerous and/or hazardous products. The regulations that CPSC is applying in the Firefox case are defined in three sources: 1) Federal Hazardous Substance Act (FHSA) at 15 U.S.C. 1261 et seq., 2) the Consumer Product Safety Act (CPS Act) at 15 U.S.C. 2051 et seq., and 3) the regulations of the CPSC at 16 C.F.R. 1500 and 1507.

The judge initially set a deadline of January 15, 2007 for CPSC and Firefox to reach an agreement on which chemicals and supplies are to be limited in sales to individuals who do not possess an ATF Explosives Manufacturer's Permit. This didn't happen, the two sides agreeing to disagree, so on April 30th, Judge Winmill issued his ruling based on recommendations submitted to him by U.S. attorney's representing the CPSC and the U.S. Department of Transportation (DOT) as well as counsel for the defendants, Firefox.

Firefox's recommendations were almost unilaterally ignored, with the exception that the government must bear the costs of copying and shipping should CPSC or DOT request records for review. The judge granted the government's recommendations in their entirety with the exception of the government's request to strike the expert reports submitted by the defendant Firefox. Since the government got all of their requests in the order, the judge saw no reason to deny the record from standing as submitted.

Three of the four points of paragraph 5 in the judge's order that may have the greatest effect on amateur rocket scientists are that Firefox is permanently restrained from "participating in any transaction that involves selling, giving away, holding for sale, or otherwise distributing:"

• To any delivery address or to any individual, more than one pound of any oxidizer per twelve-month period;
• To any delivery address or to any individual, any fuel for which the particle size is finer than 100 mesh (or particles less than 150 microns in size); and
• To any delivery address or to any individual, any tube 10 inches or shorter in length.

As defined in the order, "Oxidizer" means ammonium nitrate, potassium chlorate, potassium perchlorate, potassium nitrate, sodium chlorate, sodium perchlorate, sodium nitrate, barium nitrate, strontium nitrate, or potassium permanganate. "Fuel" means aluminum and aluminum alloys, magnesium, magnesium/aluminum alloys (magnalium), antimony sulfide, antimony trisulfide, potassium benzoate, sodium benzoate, sodium salicylate, sulfur, titanium, zinc, zirconium, or zirconium hydride.

Even if you just wanted to buy a box of 3/8" by 2" long paper tubes to make ejection charges with, Firefox can't sell them to you. You would need to buy tubes longer than 10 inches and cut them up yourself. With a caveat. A gotcha, if you will. If you have an ATF manufacturing permit, you can buy as many tubes less than 10" in length that you wish. Quoting from the judge's order, these restrictions "shall not apply to the distribution of any oxidizer, fuel, fuse, or tube to any individual or entity that submits a valid, current, certified license to manufacture explosives issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives ('ATF'), provided, in the case of an entity, that the distribution is made to a 'responsible person' for the entity as defined at 18 U.S.C. § 841(s) and 27 C.F.R. § 555.11."

Further damage to Firefox's business is that they are permanently restrained from "offering metallic powders for transportation within the same outer packaging as any oxidizer ('oxidizer' being defined for purposes of this paragraph according to the Hazardous Materials Regulations, 49 C.F.R. Pts. 171-180, and not limited to the specific oxidizers set out in paragraph 3(c) above)," and "failing to declare all metallic powders as hazardous materials to the carrier prior to transportation," which requires that all metallic powders must now be shipped as HAZMAT. That's one pound a year, plus HAZMAT fees. But no fuel and oxidizer in the same box, so that's two shipments.

Rocketeers wishing to purchase the materials to produce their own "black powder" must purchase their materials separately, as Firefox is permanently restrained from "offering for shipment, within the same outer packaging, all the chemicals or materials used to manufacture 'flash powder,' 'black powder,' or any explosive or pyrotechnic article or device, irrespective of whether the chemicals or materials are listed in the hazmat table found under section 101, Part 172 of Title 49 of the Code of Federal Regulations."

Apparently the ability for individuals to produce their own pyrotechnic-style compounds also struck a nerve, as Firefox now finds themselves permanently restrained from "offering for transportation or selling any 'thermatic' mixture unless the material is subjected to the testing required by the Hazardous Materials Regulations, including, but not limited to, self-reactivity testing under the UN Manual of Tests and Criteria, as incorporated into the Hazardous Materials Regulations by 49 C.F.R. § 107.7, to determine the material's type; and, if required by the Hazardous Materials Regulations, submission of the mixture to the Associate Administrator, Pipeline and Hazardous Materials Safety Administration, for approval."

Even things which just seemed unusual made it into the ruling, such as Firefox being permanently restrained from "offering any metallic powder for shipment, unless the metallic powder is classified, described and documented on a shipping paper and on the packaging containing it, based on the smallest particle size found in the material (e.g., magnesium powder containing 50% or more ribbons or turnings must be classified as 'Magnesium Powder,' and not as 'Magnesium with more than 50 percent magnesium in pellets, turnings or ribbons')," meaning that if they were to sell 99.9% magnesium turnings, with .1% percentage magnesium powder, it had to be labeled "Magnesium powder."

In addition, the order called for extensive record keeping (photocopies of drivers licenses and, if applicable, ATF licenses for all recipients, as well as detailed invoices maintained for at least seven years and Firefox’s agreement to provide those records to CPSC at any time on demand.

No doubt, the impact of this decision will weigh heavily in the fireworks community, where the majority of participants do not hold federal ATF explosives manufacturing permits. Firefox and similar competitors are suppliers of hobby-oriented quantities to hobby-oriented users. The stifling restrictions being forced upon the fireworks community will mean that companies like Firefox will simply go out of business. And if Firefox does, the court order requires them to notify CPSC and DOT, adding insult to injury.

It is currently legal for you to mix and cast your own motors as long as they are for your own use and not for resale without a federal explosives permit. It is also currently legal for you to fire the same motor on your property without an explosives permit. It is not, however, legal for you to transport your motor to an approved launch site without an explosives permit. But how can you mix and cast your own motors if you can't get the materials? Gotcha!

Now that legal precedent has been set that requires one company to demand that you have an ATF manufacturing permit in order to purchase more than 1 pound per year of non-legally-restricted powders, these "fuels" and "oxidizers" used in the manufacturer of amateur rocket motors, how long will it be before it is required of all companies? How long before said precedent becomes law?

Documents:

• Judgment: The United States of America v. Gary Purrington (64K Adobe PDF)
• U.S. Consumer Product Safety Commission Press Release (HTML Document)

Reader comments:

#1 How can we help?

This is the end result of a populace which expects its government to "protect" it. I don't make amateur fireworks, but if we don't support Firefox and amateur firework makers, then our hobby may be next.

Steve_Shannon on 05-05-2007 06:02 PM

#2

Well here we are in the land of the free!!!!
How much longer until we will not have any freedom unless it is approved by our government?
I was always under the impression that the government was supposed to be for the people but I am now feeling like it is for the people in government. This is called Communisms.
I believe it was Russian Leader Mikhail Gorbachev who said, “As we (Russia) move to Democracy the US moves to Communism.” This may not be a correct quote but it is the meaning and I am beginning to believe he was correct.

jimmyc-rocket on 05-05-2007 06:55 PM

#3

Quote:

Well here we are in the land of the free!!!!

That is correct! You are FREE to do what you are TOLD!

ddmobley on 05-05-2007 07:36 PM

#4 How many k's are there in Amerika?

The Fox is dead! Long live the Fox!

crontab on 05-05-2007 07:39 PM

#5

Meanwhile, while having all this success in harassing the legitimate users...

The driver of the tanker truck that burned down the Cali overpass had a rap sheet as long as my arm...weapons, drugs, prison time. But all's well, he passed his TSA background check...
It would be funny if it wasn't so sickening.

mrbusdriver on 05-06-2007 10:34 AM

#6

Ammonium Nitrate is the first thing mentioned. Does this mean that as a farmer I would need to get an Explosives Manufacturing Permit to fertilize my fields? Or that I can only purchase 1 lb. per year? That would really limit the amount or product grown per acre, raising the per unit cost and that would really destroy the ethanol industry. There would not be enough corn to feed everyone and make useless ethanol, which takes more energy to produce then it gives back. Don't get me started onthis useless stuff now too.

Ken

ken487 on 05-06-2007 12:15 PM

#7

Quote:

Ammonium Nitrate is the first thing mentioned. Does this mean that as a farmer I would need to get an Explosives Manufacturing Permit to fertilize my fields? Or that I can only purchase 1 lb. per year? That would really limit the amount or product grown per acre, raising the per unit cost and that would really destroy the ethanol industry. There would not be enough corn to feed everyone and make useless ethanol, which takes more energy to produce then it gives back. Don't get me started onthis useless stuff now too.

Ken

No, as I read it this court order only places conditions on the seller, Firefox Enterprises. The end user is free to go elsewhere and buy from others without the same conditions. That's why this is such a bizarre and unworkable judgement. I guess the assumption the court made is that Firefox is the only place where people can go to buy oxidizers, metals, or paper tubes, and that people cannot figure out how to cut a paper tube shorter than ten inches.

When paper tubes are banned only outlaws will have paper tubes...

Steve_Shannon on 05-06-2007 01:17 PM

#8

When does this take effect?

PeterEkstrom on 05-06-2007 01:27 PM

#9

Quote:

When does this take effect?

Why, April 30th, 2007! Oh that was last Monday, wasn't it?

This is the judge's way of punishing Firefox individually, and the Purrington's collectively, so that they as a company or they individually may never be involved with selling anything that can made into an M80. But that is the judge's primary desire.

The CPSC, on the other hand, has a much larger agenda and if you read the second link above to their trumpeting press release, they embrace the precedent-setting concept that the judge and the U.S. District Court has now stated in the public record that CPSC has the regulatory authority to oversee the sales of those products:

"A federal court affirmed that the U.S. Consumer Product Safety Commission (CPSC) has the authority to stop the sale of chemicals and components used to make illegal, dangerous fireworks. This is a major victory in CPSC’s continuing effort to protect consumers from injury and death caused by illegal explosives." (Emphasis added)

Those key words should be a clue that CPSC has every intention to pursue the continuing erosion of your constitutionally guaranteed personal rights. What is scary to see in writing is where the judge stated:

"As suggested by the Government, the only way to foreclose Defendants’ customers from building illegal fireworks would be an outright ban on fuel sales of all mesh sizes. Although the Court believes that it would be legally justified in ordering such an outright ban, the Court agrees with the Government that enjoining Defendants from selling, giving away, holding for sale, or otherwise distributing to any fuel for which the particle size is finer than 100 mesh will stop most of Defendants’ sales related to banned firework manufacture. Thus, the Court will adopt the Government’s proposal with respect to fuel sales." (Emphasis added)

The judge believe that he would be legally justified in ordering an outright ban. Arrogance just doesn't get much more blatant than that.

ddmobley on 05-06-2007 03:28 PM

#10

Quote:

When paper tubes are banned only outlaws will have paper tubes...

I love Steve's satire here. All you Outlaws out there don't try to erase the serial number on your paper tubes longer than 10 inches. Just take them to the nearest police station. There is bound to be an amnesty program!

Bob

aerostadt on 05-06-2007 03:35 PM

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