VICTORY - Court Decision on NAR/TRA Lawsuit vs BATFE

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While we (ROCK) don't fly HPR many in the section do, and this ruling is
is monumental. There are many details to be worked out over the next
few weeks, but I wanted to post the good news for all to share!

The following is quoted from an email sent by Trip Barber, NAR President to
the NAR Sections list.

Enjoy!

-Brian, NAR #83726, L2
President, Section 622
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National Association of Rocketry
March 16, 2009
Fellow NAR Members --

As the result of nine years of hard work by our legal team and the teamwork and leadership of a series of key leaders of the NAR and TRA (especially former NAR President Mark Bundick), and as a result of your generous financial support for our cause, this case is now over. We have completely and unambiguously won.

The BATFE regulation of APCP was found by Judge Walton to be ".. arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law." and has been ordered by the Court to be "vacated" or canceled. Sounds good, doesn't it? The full text of the Court decision is provided below. Enjoy reading about how justice has been served and an arrogant and capricious federal agency has been defeated by two small all-volunteer organizations with sound "rocket science" on our side. We know that APCP is not a threat to national security, nor are we, and the court has agreed with us.

TRA President Ken Good and I will be consulting with our legal counsel over the next several days on exactly what we have to do next to ensure that BATFE complies with this order, and to determine what recourse they might try to pursue to continue this battle (i.e. by trying to redraft their rule) with what likelihood of success. They will not give up and will not go away easily. Please do not do anything confrontational with any BATFE agent, do not tear up your LEUP, and do not remove material from any magazines yet, until we know exactly where we stand legally. We will issue a joint statement on what is next and what you should do as soon as we sort it out; this may take a few days. I believe that we have enough in the Legal Fund to cover all the remaining close-out costs of this case.

Thanks for your patience and support while we fought this battle for you. And if you see Mark Bundick, shake his hand and thank him!

Trip Barber
NAR 4322
NAR President

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Civil Action No. 00-0273 (RBW)

TRIPOLI ROCKETRY ASSOCIATION and NATIONAL ASSOCIATION OF ROCKETRY, Plaintiffs

vs

U.S. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, Defendant

The plaintiffs filed this action nine years ago challenging the defendant's regulation as an explosive under 18 U.S.C. § 841(d) (2006) a chemical compound known as ammonium perchlorate composite propellant ("APCP"), which is commonly used in the motors of hobby rockets. After the Court ruled on the parties' initial cross-motions for summary judgment in this case, the plaintiffs appealed and the District of Columbia Circuit, reviewing the matter de novo, held that the defendant's classification of APCP as an explosive based on its determination that the substance functions by deflagration violated the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2000), because the decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law, Tripoli Rocketry Ass'n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 437 F.3d 75 (D.C. Cir. 2006). The Circuit Court therefore remanded the matter to this Court "with instructions to remand the case to the agency for further consideration consistent with [its] decision." Id. at 84. The remand was ordered because the Court found that "[t]he agency ha[d] never provided a clear and coherent explanation for its classification of APCP." Id. at 81. The Court further found that the agency "ha[d] never articulated the standards that guided its analysis" that would permit a court sitting in review to "determine whether [the defendant's] judgment reflect[ed] reasoned decisionmaking." Id.; see also April 20, 2006 Order. In its October 13, 2006 memorandum the agency informed the Court that it had complied with the Circuit's mandate and was affirming its earlier decision to classify APCP as an explosive. Defendant's Notice of Agency Decision (Oct. 13, 2006). The plaintiffs thereafter amended their complaint, the defendant filed its answer to the amended complaint, and both parties crossed-moved again for summary judgment on the certified administrative record.

The parties came before the Court on March 13, 2009, for a hearing on the parties' cross-motions for summary judgment. Upon consideration of the parties' written submissions, the administrative record presented to the Court, the applicable legal authority, the oral arguments presented by the parties, and for the reasons expressed by the Court at the hearing on the motion, the Court finds that the agency's decision does not satisfy the standard for evaluating agency rulemaking because it was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A). Specifically, the defendant did not adequately explain why it came to the decision it did in light of contrary evidence in the administrative record submitted by the plaintiffs, which tended to show that APCP can burn at a rate lower than that which the defendant designated as the threshold, and "which, if true, . . . would require a change in [the] proposed rule.'" La. Fed. Land Bank Ass'n, FLCA v. Farm Credit Admin., 336 F.3d 1075, 1080 (D.C. Cir. 2003); see D&F Afonso Realty Trust v. Garvey, 216 F.3d 1191, 1195 (D.C. Cir. 2000) (quoting Public Citizen, Inc. v. F.A.A., 988 F.2d 186, 197 (D.C. Cir. 1993) ("'[t]he requirement that agency action not be arbitrary or capricious includes a requirement that the agency adequately explain its result . . . .'"). Here, the agency's shortcoming was its failure to articulate any rationale for finding that the relevant and significant evidence in the record that conflicted with its position was unpersuasive, which it seemingly out-of-hand dismissed merely because it was contrary to the agency's ultimate conclusion.

As to the appropriate remedy to impose for the agency's failing, the Court has discretion to choose between vacatur of the agency's decision or remand to the agency without vacatur. See Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005) (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir.1993) ("[T]his court is not without discretion. 'The decision whether to vacate depends on the seriousness of the order's deficiency . . . and the disruptive consequences of an interim change that may itself be changed.'"). Considering the number of years that have elapsed during which time the plaintiffs have awaited final resolution of the merits of their claims, the fact that this matter has already been remanded once to the agency for further action consistent with the Circuit's decision, and it appearing that vacating the agency's decision will not pose any serious threat to the public's health or safety, the Court will vacate the agency's decision to classify APCP is an explosive pursuant to 18 U.S.C. § 841(d).
[Should the defendant choose to reinstate the policy that ACPC is properly classifiable as an explosive within the meaning of 18 U.S.C. § 841(d), nothing in this decision prevents it from redrafting this rule in accordance with the tenets of the APA or from seeking an explicit statutory classification from Congress.]
Because the plaintiffs have conceded that were the Court to grant summary judgment in their favor on Count One of their third amended complaint "will moot all of remaining counts" of their complaint, Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Summary Judgment on Count 1 at 1-2 n.1, the Court having now granted summary judgment on Count One will dismiss all the plaintiffs' remaining counts of the complaint as moot.
Accordingly, it is hereby

ORDERED that the plaintiffs' motion for summary judgment is GRANTED. It is further
ORDERED that the defendant's motion for summary judgment is DENIED. It is further
ORDERED that the defendant's decision to classify APCP as an explosive under 18 U.S.C. § 841(d) is VACATED. It is further
ORDERED that the remaining counts of plaintiffs' third amended complaint are DISMISSED as moot and therefore this case is dismissed in its entirety.
SO ORDERED this 16th day of March, 2009.

_________/s/______________
REGGIE B. WALTON
United States District Judge

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And a follow up statement after discussions with counsel-

-Brian, NAR #83726, L2
President, Section 622
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JOINT TRA/NAR STATEMENT ON THE LAWSUIT VS BATFE
March 18, 2009

After a conference with our legal counsel, we provide the following information to our members on how to proceed in the aftermath of the favorable decision by Judge Walton in our lawsuit to eliminate the unjustified regulation of Ammonium Perchlorate Composite Propellant (APCP) imposed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE). We cannot offer legal advice to individual members, and members should consult their own legal counsel if there are any questions about how to proceed.

First, we should assume that the judge's decision "vacating", or rendering null and void, the BATFE regulation of APCP will not take effect until the period for appeal by the BATFE has passed without their filing an appeal. This will be approximately 60 days from now. However, even if an appeal is filed, it is possible for the Court's judgment to be in effect and BATFE regulation to be nullified while the appeal is pending. We will advise you if this is this is the case.

If BATFE should appeal the decision, regardless of the fact that there is almost no credible basis for such an appeal or for the appeal to be approved by the Department of Justice, we should await the results of the appeal to the U.S. Court of Appeals before assuming that BATFE no longer regulates APCP in the long term. However, unless the appellate court grants the agency a "stay of judgment" (which they may request, should they appeal) final judgment will be considered in effect at the end of the 60 day period mentioned above. At that time, the Judge Walton's decision will take effect and could only be nullified by an overturn on appeal. Should the appellate court grant BATFE a stay of judgment, we will have to await the decision of the court before Judge Walton's decision would be considered final and in effect. An appeal could take up to six months, and possibly more time. If there is no appeal, then the regulations are automatically cancelled even if BATFE chooses not to publish a notice of such cancellation.

We will keep our members advised of the status of any appeals and will let you know the exact official date on which the regulations are no longer in effect. After this official date, you will not be required to have BATFE licenses or be subject to BATFE inspection or oversight for sport rocketry operations with APCP in any quantity and should show a copy of the Court judgment to any BATFE agent who takes an opposite position.

Second, members should proceed for now on the basis that all these BATFE regulations remain in effect. Appropriate licenses are still required to buy, sell, possess, and/or store APCP until such time as the regulations are cancelled. If you have a license up for renewal between now and late May (or whatever later date may be determined by any BATFE appeal process), you will have to renew it if you wish to perform any of these transactions.

Third, once the regulations are canceled, members are reminded that high-power user certifications are still required for purchasing or using high-power motors even if BATFE licenses are not. We have a great reputation as a self-regulating group of responsible hobbyists and our future success in defending the freedom we just won back could depend on maintaining this reputation.

Fourth, this Court decision did not change the regulated status of other sport rocketry items such as black powder, some kinds of igniters, etc. To the extent that any of these items previously required licenses and magazine storage, nothing has changed. Nor does the decision affect licensing and regulation by other federal, state or local government agencies.

We thank our members for their continued patience and for their sustained moral and financial support as we have fought this long battle successfully together.

Ken Good, President
Tripoli Rocketry Association

Trip Barber, President
National Association of Rocketry

[Payper Orange]

This is good news to all

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Joint Statement on the BATFE Litigation

May 18, 2009

Since the U. S. Bureau of Alcohol Tobacco Firearms & Explosives has not appealed the decision of the Federal District Court of March 16, 2009, which ordered the agency to vacate their classification of APCP as an explosive, and the period for their ability to do so has expired as of May 16, 2009, on advice of counsel, we believe that the judgment is considered final although we have not received confirmation from BATFE. Accordingly, members may operate under the understanding that APCP rocket motors are no longer regulated as an explosive material by BATFE, and no longer require the permits formerly required by the agency to buy, sell, or possess such motors.

Members possessing a LEUP are advised that they should evaluate their individual situation based upon whether they possess (or plan to possess) and store materials that are still considered regulated by BATFE. While APCP rocket motors are now no longer regulated under the requirements of the "Orange Book" and are not subject to requiring a LEUP, other materials may be subject to these requirements.
Members are also reminded that both NAR and TRA safety codes stipulate what motors they may possess, depending on their level of flyer certification. These rules still apply to our members. We likewise strongly encourage vendors of hobby rocket motors to continue to work cooperatively with the rocketry community to only sell rocket motors to customers who possess flyer certifications commensurate with the motors they wish to purchase. Ensuring we maintain our strong level of self-regulation will be an essential element in our ability to retain this freedom from overregulation by outside agencies.

Members should immediately contact the leadership of NAR or TRA should they encounter situations were any BATFE personnel conduct themselves in a manner inconsistent with the final judgment of the Federal District Court.

Trip Barber
NAR President

Ken Good
TRA President