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. �????�??�?�¯�??�?�¿�??�?�½�???�??�?�¯�???�??�?�¿�???�??�?�½�????�??�?�¯�??�?�¿�??�?�½�????�???�??�?�§ 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. �????�??�?�¯�??�?�¿�??�?�½�???�??�?�¯�???�??�?�¿�???�??�?�½�????�??�?�¯�??�?�¿�??�?�½�????�???�??�?�§ 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. �????�??�?�¯�??�?�¿�??�?�½�???�??�?�¯�???�??�?�¿�???�??�?�½�????�??�?�¯�??�?�¿�??�?�½�????�???�??�?�§
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. �????�??�?�¯�??�?�¿�??�?�½�???�??�?�¯�???�??�?�¿�???�??�?�½�????�??�?�¯�??�?�¿�??�?�½�????�???�??�?�§ 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. �????�??�?�¯�??�?�¿�??�?�½�???�??�?�¯�???�??�?�¿�???�??�?�½�????�??�?�¯�??�?�¿�??�?�½�????�???�??�?�§ 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. �????�??�?�¯�??�?�¿�??�?�½�???�??�?�¯�???�??�?�¿�???�??�?�½�????�??�?�¯�??�?�¿�??�?�½�????�???�??�?�§ 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
