Wednesday, March 18, 2009

Joint statement on Judge Walton's decision

I guess this is pretty much what I knew, but it seems more depressing when embedded in a formal statement. That is, despite the initial elation, a final victory is far from a certainty. As expected, there has been tons of discussion on this subject since Judge Walton's ruling was released. There is not a consensus about whether there will be an appeal. I personally think there is no way BATFE can throw in the towel without admitting that they not only were wrong but knew it all along. And, I don't think that will happen. I had thought we'd have temporary relief while the appeal runs its course, however, it appears that isn't necessarily the case. My decision to celebrate with low power instead of trying to order HPR motors appears to be the right one. Before the ruling, I was just about ready to dump my HPR cases. I am at least optimistic enough to keep them for now, just in case. Luckily, aluminum doesn't rust.

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