Joint Statement on BATF Litigation
We are responding to member inquiries asking for further clarification of Judge Walton's March 19 opinion, particularly as regards weight limits and high power rocket motor reload kits. The Court did not directly address the topic of reload kits in the opinion. The combination of the counts already decided, those remaining open and BATFE ongoing and potential rulemaking creates an unfortunately unclear situation for members and dealers.
The Count One ruling affirms the BATFE's right to regulate APCP based on Congressional intent. This ruling states that Congress included deflagrating materials under the provisions of the Explosives Control Act of 1970, and thus such materials are within BATFE's jurisdiction to regulate.
The Count Three ruling affirms that "fully assembled rocket motors" are propellant actuated devices (PADs) and subject to statutory protection. The judge sharply criticized BATFE for engaging in unlawful rulemaking by attempting to create rules on PADs without observing proper rulemaking procedure. The Court also overturned BATFE's 2000 "rule" as illegal, and stated, in effect, that the status quo reverted back to conditions outlined in a 1994 letter to Aerotech, Inc.
That letter specifically referred to PADs only as "fully assembled rocket motors." The judge repeated that qualification in his latest opinion, quoting the 1994 letter verbatim. He also confirmed in our recent hearing that this was precisely his understanding of the status of the PAD exemption.
BATFE now has a court opinion allow them to potentially regulate APCP, but has no legally promulgated regulation for APCP using weight thresholds and intended use. This legal question remains open to debate under Counts Four and Five, subject to any potential rulemaking forthcoming from NPRM 968, and potentially subject to further BATFE rulemaking.
Thus, we believe the legal status of reload kits remains as it was prior to the court opinion. BATFE believes reload are subject to regulation, while the NAR and TRA assert they are not.
Counsel has advised NAR and TRA that although it was possible to argue that the reload issue, they recommended that we not do so until the completion of our litigation and BATFE's rulemaking. Until BATFE's rulemaking is finished, the Court completes its ruling on the pending litigation and NAR / TRA counsel has reviewed it for legal challenge, any attempt by NAR and TRA to make a legal determination of the status of reloads would be unwise and may in fact jeopardize our position.
Based on counsel's advice, we recommend members and dealers treat fully assembled motors, regardless of propellant mass, as PADs, but at least until BATFE's rulemaking is finished and we can challenge it fundamentally, reloads are not PADs. Our most reasonable interpretation on reload kits, is that their legal status has not been altered as a result of the Court opinion.
Members should also be aware that counsel received a letter from ATF disagreeing with the 62.5 threshold, claiming that, as part of the Aerotech letter in 1994, it is the law that the status quo ante reverts back to. We continue to disagree with the ATF, but will probably have to ask the court for clarification at some future date.
On additional points and questions raised by members, counsel has also advised NAR and TRA that our case on remaining counts is quite strong and case rulings to this point have been generally receptive to our legal positions. We have asked counsel to also begin thinking of possible further legal challenges, including appeals. Counsel has researched the possibility of legal fee recovery, and we believe a good legal avenue for such recovery is available to us under 5 USC Sec. 504. Neither further legal challenges nor cost recovery can be undertaken until the current litigation is complete.
Finally, we appreciate the frustration experienced in the field by members and dealers. The legal process is equally frustrating for NAR and TRA leadership as well, but in order to complete what we have begun, we must be patient and let the legal process complete in due time. Until then, we recommend members return to the flying field and enjoy the PAD exemption we've obtained.
We again remind members who either are threatened or receive BATFE enforcement action that they should immediately contact NAR President Mark Bundick via email or at 630-293-9343 or TRA President Dick Embry via email or at 520-241-1582 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.
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 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
Dick Embry, President
Tripoli Rocketry Association
As always, you can send me your comments via email, or mail them to me at
Mark Bundick
1350 Lilac Lane
Carol Stream, IL 60188-3369