On 10 February 2006 the United States Court of Appeals for the District of Columbia Circuit handed down an opinion overturning the trial courts decision that the ATF can classify APCP as an explosive. However, the court did not remove APCP from the list of regulated explosives but has given the ATF another chance to make a rational and logical case for APCP being an explosive. The full text of the opinion is available on the NAR, TRA, and court web sites.
While this is an important win it is not the end of the case. It is still possible that the ATF could satisfy the court that APCP should be classified as a regulated explosive. But they are going to have to work at it.
One aspect of the courts opinion makes me wonder about just what the ATF can do:
It is well understood in administrative law that the "focal point for judicial review should be the administrative record already in existence, not some new record completed initially in the reviewing court" Envtl. Defense Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981).
This suggests to me that the ATF cannot now create a standard for the normal burning/deflagration transition and then test common APCP materials to determine where they fall. It appears to me that the ATF must find in their records evidence of just how they determined APCP was an explosive. Lacking any such evidence, APCP would be removed from the list. Or the court could allow them to submit new material into the record.
Given the ATF's utter lack at providing this evidence so far would give someone the impression that no such evidence currently exists.. One telling passage from the court's opinion is:
The problem in this case is that ATFE's explanation for its determination that APCP deflagrates lacks any coherence. We therefore owe no deference to ATFE's purported expertise because we cannot discern it. ATFE has neither laid out a concrete standard for classifying materials along the burn-deflagrate-detonate continuum, nor offered data specific to the burn speed of APCP when used for its "common or primary purpose".
The ATFE did not make a good impression on the court.
But the ATF is trying to spin this their way in a document posted to their web site. Wherein they state:
As such, ATF will be accepting the Court's offer to generate a more thorough, coherent administrative record that demonstrates the agency's efforts to test and analyze APCP as an explosive material.
This is interesting in light of a report issued by the Department of Justice Office of the Inspector General. One portion says:
However, during our review, we determined that the ATF had only used its authority to collect explosives samples one time - to collect a model rocket motor. The ATF had not collected any samples of ammonium nitrate. Moreover, the National Laboratory had only recently developed a systematic approach for collecting, analyzing, and cataloging samples of explosives.
Subsequent to the completion of our field work, in October 2004, the National Laboratory began the planning process for constructing an explosives storage facility, the first step toward enabling the laboratory to collect and analyze explosives. Planning for an electronic database to house explosives information collected by the laboratory began in late August 2004. According to the National Laboratory's operating plan, the ATF plans to formalize protocols for gathering information from explosives manufacturers by June 2005 and, by July 2005, develop a prototype of the explosives database.
Has the ATF completed their facilities? Can they even perform the required tests? Why didn't they test the model rocket motors they had collected?
One thing to consider is that the ATF will be conducting any tests and developing their criteria starting from the position that APCP is an explosive. They will therefore, even if they tried to exhibit some degree of ethical honesty, tend to skew their efforts based on the predetermined conclusion. If that happens, it will be interesting to see what other currently unregulated materials will suddenly be "explosives".
Judge Walton has scheduled a status conference on 20 April 2006 presumably to go over the appeals court decision and give the ATF their marching orders. At that time Judge Walton can also ask the ATF why the PAD NPRM was not published in December 2005 or January 2006 as the ATF claimed would happen at the December status conference. The ATF has not exhibited so far any ability to keep to a schedule so I hope that the court will give them a short leash.
Alas, it doesn't look like Judge Walton cracked the whip on the ATF. He did order them to provide more information at the 26 July conference.
The ATF, as usual, waited to the last instant to file their status report. Executive summary: ATF has completed testing and is awaiting a report from the United States Air Force Research Laboratory to finish their review. Besides the testing of APCP and "known deflagrating materials", whatever those were, at the AFRL, ATF also tested ordinary materials to determine the rate of normal burning. The ATF estimates it will complete their review within about sixty days.
In spite of the fact that the ATF printed publication date estimates of May 2006 in the April combined federal agenda, they now claim to be unable to make an informed estimate of dates of publication for the final rocket motor rule and PAD NPRM.
As noted elsewhere, the final rule on the rocket motor exemption from NPRM 968 was published along with the new PAD NPRM in August.
The ATF filed a status report in preparation for next weeks status conference. While the report really says basically nothing, it is hard to avoid the temptation of trying to read between the lines.
I find the ATF's claim of having conferred with NAR/TRA's counsel about how to go forward decidedly odd. This appears almost cooperative which the ATF has never been in the past. Oh well, just another week sitting on tenterhooks to find out what happens.
Side note: Yet another interesting report has been issued by Office of the Inspector General at the DOJ. This time taking the recently departed head of the ATF, Carl Truscott, to task for mismanagement. Apparently, the employees of the ATF had enough free time to devote hundreds of hours of their time, at taxpayer expense, to help his nephew with a school project. Or so Carl thought. Nothing about our travails but interesting reading anyway.
The ATF filed a document with the court today explaining their decision to classify APCP as an explosive. In my opinion, it is an incoherent attempt to justify their irrational position. The ATF compares the burn rate of APCP to safety fuse and, bizarrely enough, a candle. They then make a big point in the disparity between the burn rates of the candle and rocket motor.
Where are the rest of the test results of known deflagrating materials? Did the ATF stack the deck by picking one particular item that is designed to burn slowly?
Safety fuse (Which one? My money is on the slowest they could find.) as the gold standard of deflagration. What a bunch of morons.
Even the data they did present is inaccurate. I refer to the chart on page 5. This shows lower and upper bounds on the burn rate of APCP of 36 to 143 mm/sec. Below this they mention the failure of a G40 during the test. Computing the approximate burn rate of the G40 produces a number far below this. (This is a very rough analysis.) The G40 is nominally 29mm in diameter. It uses a C-slot grain and loses some of that diameter to the case and casting tube but call it 28mm. Assume that the propellant thickness is half that or about 14mm. It burns for about three seconds producing a burn rate of... drum roll please,
less than 5mm/sec.
A similar computation on the fastest burning Aerotech propellant formulation (Warp 9) produces a burn rate around 40mm/sec which is at the very low end of the range the ATF presents. Which begs the question: Just what did the ATF test?
I take back that crack about the ATF (at least the ones involved with this case) being morons. They are in fact lying scum who will do anything to justify their irrational position.
But I am in awe of David S. Shatzer's elephantine cojones. Signing a document with such a thin and easily exposed lie. Perhaps he thinks that no federal judge would dare cite him for perjury or contempt?
OK, so much for knee jerk reactions. How about a somewhat more careful critique?
One of the complaints the appeals court had is that the ATF put forward no objective criteria for distinguishing materials along the burn/deflagrate/detonate continuum. Remember that the ATF's claim was that APCP deflagrated and was therefore an explosive. They abandon that claim here.
In the second paragraph you can see that the ATF has no intention of putting forth such a criteria. Instead they state their plan to trot out literature references (again!) plus some test results before rendering an opinion. Not quite the objective standard the court had in mind.
I will skip the background section as this is just a rehash of the same information the ATF presented previously and the appeals court found unpersuasive.
In the testing section it starts off OK but quickly heads downhill. The ATF states that they are going to test APCP installed in rocket motors and compare the reaction rates to other explosive materials. If the ATF did in fact test a wide range of explosives, they failed to present that data here. We only get black powder and safety fuse. Hardly the broad spectrum of materials required to generate a reasonable standard.
The ATF seems to be of the opinion that safety fuse (and there are many types with widely varying burns rates) deflagrates simply because Congress listed it as an example of things to be regulated as explosives in the law. Hardly a persuasive argument.
Now we get to the deeply flawed graph of the data. The range of reaction rates given by the ATF exceeds that of all but the fastest propellant available to hobbyists. (Aerotech Warp 9). If this was meant to be an objective determination of APCP status, starting with inflated data is not a good way to start. The use of a log scale also makes the inflated APCP reaction rate appear closer to that of black powder than it really is. Unless you pay close attention.
The reaction rate of BP is clearly in the range of meters per second which was the criteria given by Dr. Conkling, as cited by the ATF for this case! The ATF abandons that criteria here in favor of safety fuse.
The ATF can't resist mentioning the "explosive" failure of a G40 during testing. Implying of course that APCP is much more explosive than it really is. They fail to mention that the propellant self extinguished and most was left unburned. (An assumption on my part but consistent with typical failures.)
Now the ATF trots out their stand ins for regular burning: paper and candles. They then point out that these materials are not explosives because they do not contain "a fuel and an oxidizer". The ATF conveniently fails to mention that a fuel (gasoline) and an oxidizer (fertilizers) are explicitly listed in the regulations by the ATF as being exempt from the regulations. Why would this be required if explosives have to be a mix of the two?
I really love how the ATF plays up the vast difference in burn rates between APCP and candles. Not really as significant as they portray as the same difference exists between the candles and paper they tested.
In the end, the ATF decides that because APCP burns faster than safety fuse, it must be an explosive. They never define a minimum reaction rate for deflagration. Heck, they don't even claim that APCP deflagrates.
Which is a serious problem for the ATF as the appeals court said in their opinion: "ATF's authority to designate deflagrating materials as explosives under 841(d) is undisputed by appellants. But for the agency to so designate a particular material, APCP, it must establish that it is indeed a deflagrating substance. In this case, the agency has articulated no standard whatsoever for determining when a material deflagrates."
I fully expect the court to find in our favor, order the removal of APCP from the list of explosives, and if we are really lucky toss in a contempt or perjury charge as well.
Here is the order filed by the court after the 17 October status conference.
Alas, relief will not be quick and this case will drag on even longer. Given the report that the judge wanted to be in a position to close this case, he sure is dragging things out with the next status conference scheduled for July 2007.
I am sure that the NAR will publish a statement sometime soon. I note that elsewhere it has been reported that the ATF dumped 900 pages of stuff on the court at this hearing. I sure hope that NAR makes that available because at eights pennies a page, I am not going to be downloading that through PACER.
True to form the ATF waited until the last day to file. Only a two page notice was posted to the court records site as the ATF submitted the documents in paper form. There is a reference to a page numbering error making it appear that pages 1242 and 1243 are missing. So I don't yet know how long this monster is but it is at least 1241 pages.
NAR/TRA have expressed a desire to make this available to the membership but given the size of this it is going to take them a while to scan and post it. Patience will be required. Or you can visit the court clerk's office if you are in a rush.
The full filing has been available for a few days now. (Organized in 100 page increments or by document.)I was thinking about writing a detailed analysis and rebuttal but I have decided that it isn't necessary or worthwhile. The ATF's justification for calling APCP an explosive is unchanged: "because we say it is". Analyzing a dung pile makes no sense at all.
I couldn't help myself and had to write something about the AFRL report.
No mention of the filings made to date from NAR or TRA. Not surprising as there is not much to see. An amended complaint filed by NAR/TRA that basically just added paragraph 38 about the ATF's recent APCP decision. And a reply from the ATF.
Both sides filed motions for summary judgment today as scheduled. The NAR motion (link to TRA web site) is pretty large as it is a scanned document. Why? The filing also included an affidavit and sample order which I will not include here. Most of the information in the affidavit is included in the motion so it would be redundant.
As expected the motion rips into the ATF's test results with digs at the credentials of the testers. It is interesting to note that they simply list themselves as a Professional Engineer and a Ph.D while Terry McCreary included a long list of his education and professional experience with his test results.
The ATF's motion is... interesting. It appears that they are well aware of screwing up the burn rate data on APCP. They argue that even if they are wrong, it doesn't matter. They also screw up the data again in their accompanying statement of facts: "8. ATF gathered data on the linear burn rate of APCP and found that it varied between 22 and 143 mm / s." The data in the record showed a minimum burn rate of 36mm/sec. 22 mm/sec was the burn rate for the Estes C6-5 Black Powder motor.
The ATF filed a motion on the 26th to extend the filing deadlines to 16 March and 10 April. The stated reasons were that a key technical adviser had been out sick and an attorney was very busy with another case. Judge Walton has granted this request.
One of my concerns about the ATF's position on the burn rate of APCP is that this is a dispute about a fact rather than law. A trial is required to resolve the facts and the court can only grant a motion of summary judgment based on the facts. If the ATF were really interested in drawing this out they could insist that they were the experts and knew how to determine the burn rate of APCP. This would then require a trial to resolve. The result would be a lengthy delay in the resolution of this lawsuit. Plus a very pissed off judge when it became abundantly obvious that the ATF refused to acknowledge the plain truth.
So I have been waiting for the ATF's filing with much eagerness. How would they respond? Admit that in spite of their claimed expertise they screwed up? Claim that it doesn't matter? Or try to pretend that they aren't idiots?
May I have the envelope please?
They claim that they aren't idiots. Furthermore, even if their expert report is wrong, they get to use it if they want to.
There were a bunch of documents filed:
What follows are my thoughts, ramblings, and rants. I find that it helps if I can vent some of my feelings this way.
I am stunned. Simply stunned once again at the depths that the ATF will go to defend a decision. Ignore the plain facts in front of them and bull their way forward and tell the judge that the court must defer to their expertise. Meanwhile claiming that they in no way have to document in any way the alleged expertise of the AFRL lab that did the tests. We do get the qualifications of Mr. Shatzer in his affidavit. It says he knows a lot about explosive ordinance disposal but there is nothing about rocket propellants. In addition, it looks like he is no more than a bomb disposal technician whereas Dr. Terry McCreary is clearly a scientist.
The affidavit filed by Mr. Shatzer is particularly offensive. I will single out a few paragraphs for rebuttal.
10. ...The propellants in four of the rocket motors tested had some similar characteristics: the propellants all had approximately the same overall diameters and were all confined by a casing of some type. Since the diameters of the propellants were nearly constant, the propellant geometry varied only in proportion to the propellants lengths.
I can only assume that Mr. Shatzer is referring to the four 29mm motors tested: F50, G40, G80, and H124. Mr. Shatzer completely ignores the fact that the F50, G40, and G80 each have a single C-slot propellant grain while the H124 has several core burning Bates grains. The difference between a C-slot and Bates grain is extremely important to the internal ballistics and ignoring it is just plain idiotic. Par for the course for Mr. Shatzer.
11. The linear method was utilized because the burn time and the length of the propellant or APCP are easily measured and provide a means to a reasonable calculation of the burn rate for each propellant. Additionally, safety fuses-- the benchmark-- burn linearly, as do the common everyday items burned by the ATF as a reference point. As such, the linear method provides a reliable measurement for purposes of comparing different types of material
Ah yes, we used this metric because it was easy. This reminds me of the classic software metric of Lines of Code. It means little if nothing but it is easy to measure. But it is no harder to measure the propellant web thickness than it is to measure the length.
While pointing out that safety fuse burns linearly, no claim is made that APCP does so. Since APCP in these motors doesn't burn end to end using a linear metric is not only useless but misleading. Especially since the court directed them to measure the burn rate. But of course it is the purpose of the ATF in this case to mislead.
12. The APCP burn rates provided by the plaintiff' expert are "radial burn rate," that is burn rates based on a radial measurement. These types of measurements are useful for comparing other propellants with characteristics similar to APCP. However, unlike linear measurements, radial measurements are not useful for comparing APCP to the other types of explosives that the ATF must evaluate. Radial measurements address burning in only one dimension at a specific pressure. They do not adequately measure the burn rates for the purposes of ATF"s tests because they do not consider the actual way a rocket burns. Rocket motor propellants burn from top to bottom, bottom to top, as well as radially, from the inside out. While it may appear that ATF also considered burn rate in only one dimension, this is not the case. Since the diameters of the propellants in four of the rocket motors ATF tested were nearly constant, the difference in the rocket motors was the lengths of the propellants. Therefore, for purposes of ATF's evaluation, the only variable was the propellants lengths, as the propellant diameters were considered a constant. Radial burn rates are not useful for explosive classification purposes, as they do not account for the geometry and mass of the propellant, nor do they account for all of the burning/deflagration on all the exposed surfaces of the rocket propellant.
I think I will stop there as this provides plenty of ammunition to shoot holes into Mr. Shitzer.
Here Mr. Shatzer clearly states that APCP propellant burns on all of its exposed surfaces although he doesn't always phrase it that way. If the only important dimension were the length, you would expect shorter motors to burn more quickly than longer motors. This is clearly not the case of which more later. If the propellant burns from both ends as he states here, they should have ignited the safety fuse at both ends in order to compare them. If the propellant in a J350 burned at 143mm/sec as the ATF claims it would burn from the center of the core to the outside in less than a tenth of a second. After which there would be no propellant left to burn from "bottom to top". Since even the ATF's own data shows that the rocket motor provided thrust for much longer than this, something is quite obviously wrong with an assumption. Yet the ATF claims that they get to use this metric even if it has no physically accurate meaning.
You might also note that the J350 is built from six identical 46.1mm long propellant grains. Why wasn't that length (or half of it) used? Of course it was because the total length of the stack provided the numbers required to defend an entrenched position.
Initially it was possible to argue that the burn rates cited by the ATF were the result of either ignorance or stupidity. Now I fail to see how it is possible to conclude other than that the ATF, and Mr. Shatzer in particular, are willfully and maliciously altering the facts to fit their preconceived conclusions. They use a rational metric for the safety fuse (a dimension normal to the burn front) but for APCP such a rational metric is "too hard" so they use something they made up. Completely ignoring years of experience within the propulsion field and insisting that the judge defer to their "expertise".
The burning surface of a propellant grain recedes in a direction essentially perpendicular to the surface. the rate of regression, usually expressed in cm/sec, mm/sec, or in./sec, is the burning rate r. pg 370, Rocket Propulsion Elements, sixth edition by George P. Sutton
Mr. Shatzer claims that the radial burn rate ignores the way the propellant actually burns. In fact it does not.
I will consider only the case of the J350 for the moment. This motor uses a stack of six identical slugs of propellant. Each one is 46.1mm long, a 1/2" (12.7mm) diameter core and an outside diameter of 1.308" (33.2mm). Since the propellant burns from the core and either end, the outside surface being passivated by the paper casting tube, there is a minor question of just how long it takes for the propellant to burn. The surfaces will for the most part regress at the same rate. By the time the core burn front reaches the outside the burn fronts coming from the ends will have of course consumed the same length of propellant. Or 10.25mm. Since the grain is 46.1mm long, there will be 46.1mm - 2 X 10.25mm or 25.6mm left. So it is obvious that the propellant is consumed when the core burn front reaches the outside. So to a good first approximation using the propellant web thickness will provide an accurate measure of the burn rate. So while the exact geometry of the slugs isn't mentioned, it turns out it is not important in this case. It would only matter if the propellant was short with respect to the core diameter. It is in fact Mr. Shatzer who is ignoring the way the propellant actually burns.
As an exercise I applied the AFRL burn rate method to the entire line of Aerotech 38mm White Lightning motors with the expected ludicrous results.
14. Rocket Propulsion Elements, An Introduction to the Engineering of Rockets referenced by Dr. Terry McCreary, contains a table on page 396 listing 12 different propellants and their characteristics. (AR II at 2077). The ninth propellant on the list is identified as "PBAN/AP/Al," which is a type of APCP consistent with the APCP being evaluated as an explosive in the Agency Decision. In the eighth column of the table, titled "Hazard Classification DOT/MIL," the PBAN/AP/Al mixture is identified as having a DOT Hazard Classification of "B." Class "B," materials, now referenced as "class 1.3 materials" are low explosives. (AR II at 2192).
Mr. Shatzer fails to mention that the DOT standards for class 1 materials are more expansive than the definition at issue. In fact they are very similar to the criminal definition that the ATF uses. Something he obviously knows about as the DOT definition was included by the ATF in the Administrative Record. In case you haven't seen it, here it is:
49 CFR 173.50(a) Explosive. For the purposes of this subchapter, an explosive means any substance or article, including a device, which is designed to function by explosion (i.e., an extremely rapid release of gas and heat) or which, by chemical reaction within itself, is able to function in a similar manner even if not designed to function by explosion, unless the substance or article is otherwise classed under the provisions of this subchapter. The term includes a pyrotechnic substance or article, unless the substance or article is otherwise classed under the provisions of this subchapter.
He also fails to mention that the highest burn rate in that table is 0.78 in./sec.
I also like how the ATF suddenly produces some data on the use of rocket materials in bombs. Notice that out of over 44,000 incidents, 8 mentioned ammonium perchlorate. Not APCP of course so there is no way to tell if APCP were used or if the oxidizer was mixed with something else. There is also no way to tell if this were an arson or explosives incident. The ATF of course would like us to think that it was propellant being used to make a bomb. In any case it would seem that someone thinks it has little utility in making bombs as it is almost never used. This data was produced in an attempt to refute the NAR/TRA claim that no one has been fatally injured by the APCP from rocket motors. So rather than produce even one documented incident, which is all that would be required, they obfuscate.
As for the actual motion, it is an interesting document. It spends a lot of time trying to make the case that they get to use their data, no matter how flawed, to justify the decision they want to make. And if the court should decide in our favor the only remedy is to remand it to the ATF for action. Which would of course be the same inaction we have seen for over ten years now.
One particular bit of misinformation stands out.
With respect to APCP in particular, ATF's testing revealed that APCP's burn rate was 36-143 mm/sec. Id. at 4. ATF's reaction rates are corroborated by the similar ranges for hobby rocket motors reported by manufacturers (22-143 mm/sec.). See ATF MSJ at 11. Although the manufacturers do not specify whether their figures are based on linear or radial tests, it would appear likely that even the manufacturers of these items use linear. In any event, the comparable rates are above the lower floor of 7.5 mm/sec, refute the data proffered by plaintiffs, and strongly support the validity of ATF's methodology.
So what does the motion for summary judgment have to say?
Because the Air Force Research Lab found that their results were highly similar to manufacturers' published thrust duration times, they were confident about the accuracy and repeatability of the data gathered. Id. at 139-40
So what the AFRL really claimed was that the burn times were similar to published data. The authors of this document then deliberately mislead by claiming that this corroborates the burn rate data. Then they claim that this made up data refutes the data provided by NAR/TRA. You could perhaps argue that this was just a misunderstanding. Except that they go on to cite a specific range of reaction rates and discuss how the manufacturers measured them. Given that none of this appears in the motion for summary judgment or the AFRL report, counsel made it up. This is such appallingly bad behavior that some sanction by the court is richly deserved.
In addition the ATF has utterly failed to explain or justify their change in position. I refer to their memorandum of points and authorities filed in September 2002.
The authoritative treatise, Chemistry of Pyrotechnics, indicates that the approximate reaction velocity associated with detonation (citing as examples dynamite and TNT) is greater than one kilometer per second; that the approximate velocity for deflagration (citing as examples rocket propellants and confined black powder) is in the range of meters per second; and that the approximate reaction velocity associated with the more-common types of burning is in the order of millimeters per second. (Admin. Record, Doc. 11)
So now instead of a reaction velocity in the range of meters per second for deflagration we have 7.5mm/sec. The ATF has changed the target without explaining why. The reason of course is because it is impossible to explain. At least in a rational way.
The final round of documents were due today. The big question is will we get more of the ATF's foolishness about measuring the burn rate of APCP correctly being too hard.
The NAR/TRA document rips nicely into the ATF's arguments. It points out the errors in the ATF's attempt to paper over an indefensible decision. Although it is a bit more restrained than I would have been. One thing that is missing is an attack on the ATF's position that the length based burn rate calculation is required to compare the burn rate of APCP to other low explosives. This claim does not appear in the agency decision and appears to be a post hoc rationalization of a glaring mistake. In any case nothing is presented to back up this claim.
The simplest argument against a length based burn rate for APCP is that it results in different rates for different motor lengths. (I previously analyzed the Aerotech 38mm White Lightning line.) If you measure different lengths of the ATF's favored safety fuse, you get the same rate. You can see the problem to a limited extent in the AFRL results. The F50 and G80 motors use the same propellant and the primary difference between them is that the G80 propellant grain is 50% larger. Unsurprisingly the length based metric results in a 40% higher burn rate for the G80. If the ATF's metric doesn't even yield the same result for identical propellants, it is certainly just as useless in comparing them to other explosives. You might notice that the burn rates in Gary's affidavit for these two motors are nearly identical.
It would appear that the US Attorneys on this case are illiterate and/or blind. They claim in a footnote on page 2 that the plaintiff's did not dispute any of the "facts" the ATF presented as not being in genuine dispute in their motion for summary judgment. Then since the ATF's "facts" are not disputed, the court must find in their favor. This is in fact presented on page 10 of the plaintiffs' response.
I suspect that it does not help your case if you present such obvious evidence of incompetence to the court.
(4 May note: The ATF filed an errata on 1 May admitting that this was a mistake and begging the courts forgiveness.)
I also take severe exception to several places where they claimed that federal law supports their position but then they cite the ATF's regulations. Which are not the law! For example:
Federal law expressly defines safety fuse as a "deflagrating" explosive. See 27 C.F.R. 555.202 (defining low explosives as "[e]xplosive materials which can be caused to deflagrate when confined (for example, black powder, safety fuses, igniters,...")) (emphasis added);
I guess the blindness/illiteracy prevented them from distinguishing the United States Code from the Code of Federal Regulations. Once again it is really a case of the ATF saying that it deflagrates because the ATF says so.
And thanks to the ATF for pointing out a key detail that they seem to have ignored. Their own definition, which they cite when it suits them, says that low explosives are material that can be caused to deflagrate when confined and cites safety fuse as an example! I note that the safety fuse was not confined for this test which leaves the question of if it was really deflagrating. I think everyone outside the ATF knows that answer.
(If you have checked this page more than once you might have noticed that I have a tendency to add to this commentary over time. I attribute this to my particular variant of old timers disease: I have noticed that while I do usually realize various details, it sometimes takes a while. :-)
In another footnote, they admitted to making a mistake about manufacturers data supporting their burn rate data. They go on to claim that because the data supports the burn times and that their "linear" method of calculating a burn rate is so clearly superior to the correct method used by everyone else in the world, it still supports their burn rate data. Which still doesn't explain their crowing about how it corroborated their method.
The ATF also argues for their position that two counts should be dismissed because of rulemaking. Failing to mention that they ignored many comments and painted the hobby rocket motor rule as a relaxation of the regulations rather than the expansion that it really was. They also ignored the fact that the PAD exemption is not yet a final rule. That notice was defective in several ways yet the ATF wants the court to give them a pass even before they publish the final rule.
I particularly like how the ATF argues that we cannot question the validity of the rocket motor exemption without filing a new lawsuit. One of the counts charged that the ATF changed the rules without proper notice and comment rulemaking. If the ATF just goes through the motions, does that make it proper?
I think the ATF's counsel summed it up best in the opening paragraph:
Plaintiffs' unwavering insistence that the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") views the world through their myopic lens of convenience and self interest...
I remain convinced that the ATF hasn't got a leg to stand on and we will win. They had to strain at the definition of deflagration and in spite of what ATF's counsel claims, the ATF never articulated a standard yet alone explained why suddenly it wasn't faster than ordinary burning. Even with this artificially low standard they had to use a unique and completely irrational method of computing the burn rate of APCP to make their case.
This should have been their best effort.
The next scheduled event is a status conference at the court on 27 July.
The status conference was canceled by Judge Walton at the last minute. There is an order vacating the court date entered in the docket on the 26th but nothing to indicate what happens next.
Yesterday Judge Walton granted the motion filed by Plaintiffs last fall and scheduled a hearing for 23 March. The only thing this tells us for sure is that there will be no resolution of this case until after the hearing.
After a brief detour to 5 May the hearing was rescheduled to 13 March. Although very few details (basically none) were provided the joint statement from TRA/NAR indicated that the judge was inclined to favor our position. Not exactly a ringing endorsement but much better than the alternative.
In a surprising show of swiftness which raises the question: "What took you so long?" Judge Walton issued a decision today. He found for the Plaintiff's and vacated the classification of APCP as an explosive by the ATF. The reason given was:
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.
Which pretty much sums up the behavior of the ATF.
This means that effective today APCP is not a regulated explosive and none of the federal explosives laws and regulations apply to it. No permits, no storage in magazines. This does not mean that I will be removing my reloads from my magazine today.
It seems likely that the ATF will appeal this decision and in the process request a stay on the order to vacate. If the stay is granted, APCP would remain regulated until there is a decision on the appeal. The ATF must file a notice of intent to appeal very quickly. If my reading of the rules is correct, they have 60 days. I will wait until that deadline passes before getting carried away. The reasons for this is pure laziness. If I removed everything now and the ATF appeals and is granted a stay, I then have to return everything to the magazine and update the magazine log. So I will wait and if the local ATF people whine at me during my next inspection, fine. (Note: NFPA 1127 requires that high power motors, reloads, etc. that are exempt from 27 CFR part 555 be stored in a "recloseable, non-combustible container".)
The decision also says (in a footnote) that nothing prevents the ATF from taking another stab at classifying APCP as an explosive if they follow the Administrative Procedures Act or even seek a change to the law. The good news about the regulatory route is that it would take time unless the ATF claims an "emergency" precluding the use of notice and comment so they can skip right to a final rule. Such an action would of course induce another lawsuit.
Expect that a motion will be filed by the Plaintiff's sometime in the next two weeks to recover costs and attorney's fees. This was requested in the original complaint but the court rules require that a motion be filed within 14 days of the judgement. (I read an opinion on awarding costs in an unrelated case that was very informative and encouraging.)
Because some state explosives laws are linked to the federal laws this could also affect the application of state laws. This could be either explicit or implicit in the laws.
If the state law explicitly references the ATF's list of explosives then the removal of APCP from that list will remove it from the states regulation. The catch here is that the state might also include a definition of explosives. If it matches the ATF definition from 18 USC 841(d) then the state laws will no longer affect APCP. If on the other hand the state definition is more expansive then it is an open question.
It may take a while before the states figure out what is going on and decide how they are going to handle this. If you are in a state that has no explosive regulations like Texas, then this is great news.
The ATF has not filed an appeal so APCP is no longer regulated by the ATF. The ATF has said absolutely nothing in public about this decision so it is impossible to know what they think or what they will do. I expect some sort of nincompoopery at some point. What it will be is anybodies guess. If they are feeling particularly idiotic they might try an enforcement action.
In the meantime, buy motors, fly rockets, and enjoy. But be safe and sane about it. No sense providing the morons with any ammunition to claim the hobby needs more regulation.