Model Forum / General / Rockets / March 2009

This is the text of Judge Walton's ruling.
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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