Model Forum / General / Rockets / October 2004

David Schultz posted the following information about last week's court
hearing to the DARS list.

James Duffy
jduffy@mac.com

___________________________________

(From David Schultz)

Curiosity finally overwhelmed me on the latest BATFE lawsuit happenings. So
I
went to the Federal District Court of Columbia web site, established a
PACER
account, and checked the recently filed documents.

The court denied the NAR/TRA motion in a document posted on the 19th. Which
if
you look at the previous documents was not a surprise. The NAR/TRA took the
position that the summary judgment earlier this year meant that all fully
assembled rocket motors were exempt as Propellant Actuated Devices (PADs).
This
was clearly not the case.

The judge ruled earlier this year that the BATFE's change in position from
the
1994 letter was invalid because it did not go through the proper rule
making
process. If anyone actually read that letter (attached to court filings)
they
would have read:

"The Aerotech products which have been classified by the Department of
Transportation as a flammable solid 4.1 or as explosives 1.4c, which are
within
the 62.5 grams limit contained in NFPA 1122 and conform to the requirements
of
model rocket motors as set forth in 16 CFR section 1500.85(a)(8)(ii), would
meet
the ATF requirements for exemption under 27 CFR Part 55, section
141(a)(8)."

(The full text of this document is available on the TRA web site.)

141(a)(8) being the PAD exemption. Notice the other restrictions placed on
this
by the BATFE. Any motor not meeting the requirements of the Consumer
Product
Safety Commission (CPSC) are regulated under this interpretation. This
limits
the exemption as PAD's to assembled motors with no more than 80 N-s total
impulse ("F" motors) and no more than 62.5 grams propellant.

This leaves us in a really bad position. Some motors that were exempt under
the
now vanished exemption for toy propellant devices are _not_ exempt under
this
PAD ruling. Single use "G" motors aren't exempt as PAD's. No reload is
exempt as

a PAD under this criteria. So the limits in the FAQ that the BATFE recently
published are actually more leniant than required by the 1994 letter.

It was nice to fantasize about the judge slapping the BATFE down. But it
was
just a fantasy.

In addition to the judge's ruling there were a couple of other documents
filed
by the BATFE. The more interesting of these was an affidavit from the
inspector
who performed the permit renewal inspection at Al's Hobbies that was cited
by
the NAR/TRA.

Al's Hobbies was cited for a raft of violations. Some of which were minor
but
many were major problems.

They were cited for not having their magazine secured in the correct
fashion.
Their magazine has a single unhooded padlock and the room it is stored in
is not
secured as required (two hooded padlocks, or.... you know the drill). This
is
absolutely correct but it does bring up the point that this magazine had to
have
been approved by a previous BATFE inspector.

There was a long discussion about this locking issue on the THPRA list a
while
back. When I expressed my opinion that the above lock requirement was
correct,
several people disagreed with me. I think that perhaps some permitees in
Texas
might have had magazines approved with this one lock configuration. I
strongly
suggest that you read the BATFE's position on this in the last Explosive's
Newsletter. Then take notice of the above action against Al's Hobbies and
be
prepared to alter your locking arrangement when the BATFE notices their
screw-up.

They were also cited for having 140 pounds of explosives stored in a type 4
indoor magazine when the limit is 50 pounds. Only about 11 pounds fell into
the
contested PAD category.

They had numerous paperwork violations. Failure to record information.
Inconsistancies between acquisition, disposition, and magazine logs.

Some of the violations listed caused me to ask some questions. Such as just
what
are the "date shift codes" which were cited as being missing from
acquisition
records among others? The regulations require you to record the date but
never
mention a "date shift code".

And for everyone who has a permit and is thinking of assisting a non permit
holder in flying their rocket we have this ominous pronouncement:

"Licensee was cautioned against taking orders for rocket motors from
individuals
not Federally licensed/permitted and subsequently shipping/delivering them
to a
different individual who is Federally licensed/permitted as this may
unwittingly
be aiding in trafficking explosives to prohibited individuals.
Licenses/permits
issued to individuals are for the sole use of the named individual."

Which resulted from Al's Hobby shop entering a non-permitees name in their
records and delivering (so they claim) to a permitee.

Given this long list of violations, Al's Hobby shop should be quite happy
that
the BATFE is working with them to clear up the problems rather than taking
more
serious actions.

The last document filed in the case is a motion requesting the judge to
issue a
final ruling on count 1 of the lawsuit so that the NAR/TRA may proceed with
an
appeal on that issue. In case anyone forgot, that count is about the
explosiveness of APCP.

Most of these recent documents should eventually appear on the TRA web
site.