This section has grown more than I expected and is in desperate need of reorganization. The revised version is now up. One day soon this page will vanish.
In this document I will attempt to lay out the regulatory situation as it stands today and what it will look like in the future. This is my viewpoint only and could be completely bogus. Batteries not included. Your mileage may vary.
I have included numerous links to reference material so that you can read it and decide for yourself. I try and check the links periodically but I am sure that some will be out of date. In particular, if you want to check out the Code of Federal Regulations, these are updated regularly and you should access them through the GPO web site.Find the appropriate part in the table and select the latest version.
The materials primarily used as propellants in solid rocket motors for model and high power rockets have been classified by the Bureau of Alcohol, Tobacco, and Firearms (ATF) as explosives for many years. Black powder is commonly used in the smallest motors. The bulk of these motors are built by Estes and have been used by thousands (millions?) of children for over 30 years. Because of the poor mechanical properties of black powder it is seldom used in larger motors ( greater than E impulse class).
Larger motors typically use Ammonium Perchlorate Composite Propellant (APCP). This is similar to the propellant used in the solid rocket boosters on the space shuttle. APCP is a mixture of ammonium perchlorate, a synthetic rubber binder, and other additives. When ignited, APCP burns in a safe and controlled manner.
Topics:
(* takes you to another page)
Explosives are classified according to their properties for purposes of shipping. The basic classification is a two digit number and describes the basic hazard.
| United Nations Explosive Hazard Codes | |
|---|---|
| 1.1 | Substances with a mass explosion hazard |
| 1.2 | Substances which present a projection hazard but no mass explosion hazard |
| 1.3 | Substances which present both a fire hazard and a minor blast or projection hazard (or both) but not a mass explosion hazard |
| 1.4 | No significant hazard |
| 1.5 | Very insensitive substances with a mass explosion hazard |
| 1.6 | Very insensitive articles with no mass explosion hazard |
Before any explosive material can be shipped, it must be classified by the Department of Transportation (DOT) so that its hazards are known. This process can be quite expensive. This site provides a quick background on the process. For more details than you probably want, look through the DOD classification procedures which are based on the UN procedures the DOT follows. I don't know which specific test causes APCP to be classified as an explosive, but after looking through the series one tests (is it an explosive?) in the DOD document, APCP will probably fail the internal ignition and "slow cook-off bomb" tests. These involve filling a steel pipe with the material to be tested and either igniting or heating to 400C.
Just because something is classified by the DOT with an explosive hazard class, does not mean that it explodes. For example, road and aerial flares are classified as 1.4 explosives. (See Material Safety Data Sheets for Orion flares.) Do you need an ATF permit to purchase flares? No. Are they explicitly exempted at 27 CFR 55? No.
So why does the ATF want to regulate model rocket motors in general and APCP specifically? The ATF claims that APCP "deflagrates" or burns very quickly. The first problem with this is that if you measure the burn rate of something, what constitutes "very quickly"? If you can't put a number on it, it isn't science. The second problem is that the statutory requirement is that the material have a primary and common purpose to function by explosion. You would really have to stretch most peoples concept of an explosion to describe a rocket motor as exploding.
The ATF also claims to have a list of 442 incidents involving model rocket materials. This list is semi-mythical and has never been seen by most people. However, it is pretty easy to guess that most of these incidents involve the use of Estes Solar igniters in pipe bombs. But the ATF is using it as justification for regulating larger rocket motors and not Estes motors.
What is available on the ATF web site is a list of Selected Explosives Incident Reports. The interesting part of this is the table of "filler material", or the actual explosive used. APCP does not appear in this table.
Even though the materials used as rocket propellant are classified by the ATF as explosives, most users have not had to deal with the regulatory hassles of the ATF because of a long standing exemption from regulation for rocket motors. That exemption was codified in the Code of Federal Regulations:
| 27 CFR 55.141(a)(7) |
|---|
| The importation and distribution of fireworks classified as Class C explosives and generally known as "common fireworks", and other Class C explosives, as described by U.S. Department of Transportation regulations in 49 CFR 173.100 (p), (r), (t), (u) and (x). |
| 49 CFR 173.100(u) |
| Toy propellant devices consist of small paper or composition tubes or containers containing a small charge of slow burning propellant powder. These devices must be so designed that they will neither burst nor produce external flame except through the nozzle on functioning. Ignition elements, if attached, must be of a design examined by the Bureau of Explosives or the Bureau of Mines, and approved by the Director, OHMT. |
So if a rocket motor was classified by the DOT as a "toy propellant device" and as a Class C explosive, it was exempt from ATF regulation. A problem came up in the early 90's (1992?) when the DOT revised their hazardous materials classification system to bring it into alignment with the United Nations classification system. Class C explosives became Hazard Class 1.4 and toy propellant devices vanished along with 49 CFR 173.100. 49 This was replaced with 49 CFR 172.101 which has two items for model rocket motors. (NA0276 for 1.4C and NA0323 for 1.4S) They are not UN numbers but NA so they only apply to shipping within the US.
The ATF finally got around to trying to harmonize their regulations with the UN classification system much later. The revision took effect in 1998. The new exemption was:
| 27 CFR 55.141(a)(7) |
|---|
| The importation, distribution, and storage of fireworks classified as UN0336, UN0337, UN0431, or UN0432 explosives by the U.S. Department of Transportation at 49 CFR 172.101 and generally known as "consumer fireworks" or "articles pyrotechnic." |
Notice that the reference to "other Class C explosives" was not replaced. The effect of this was to bring rocket motors under the regulatory requirements of the ATF because rocket motors are not fireworks (see Texas law exempting model rockets) and only the smallest black powder motors have one of the listed UN numbers. The ATF realized they made a mistake and notified their agents and at least one manufacturer (Aerotech) that this was a mistake and to take no action.
Aerotech sells a wide variety of motors but the most popular are sold as reload "kits" which consist of APCP propellant and other components which are used to load an aluminum casing. These vary in size from D impulse (~20 Newton-seconds) all the way up to N impulse (up to 20,480 Newton seconds). Reload kits for up to I impulse (360 Newton-seconds) and some J impulse motors were classified by the DOT as Class C toy propellant devices. (Note: Aerotech used to have copies of DOT documents showing this classification. As a result of the bankruptcy sale to RCS Components, new DOT documents were issued and these make no mention of toy propellant devices. Not a real surprise as it has been 13 years since that designation vanished from official DOT regulations.) Therefore these motors could be purchased without an ATF permit or filling out ATF paperwork. The larger motors could be purchased without a permit but only in your state of residence and after filling out an ATF form. If you crossed state lines, a permit was required. In addition, regulated explosives must be stored in an ATF approved explosives storage magazine.
This was a bit of a hassle as many rocketeers travel to out of state launches or don't have a dealer in their state. But a wide variety of motors were still available even then.
But the ATF has been attempting for several years to claim a completely different exemption exists. The ATF claims that the exemption (read their latest statement on this) is only for motors with less than 62.5 gram assembled propellant weight. As you can see by reading the regulations above, this has no basis in the published regulations. The national organizations that represent the rocket hobby (National Association of Rocketry (NAR) and Tripoli Rocketry Association (TRA)) met several times with the ATF to try and resolve this issue. The ATF refused to change their position and the result was that the NAR and TRA filed a lawsuit against the ATF. This lawsuit is still in progress.
The court finally issued an opinion on the motions for summary judgment on 19 March 2004. The court ruled that the BATFE properly exercised their powers in placing APCP on the explosives list. This means that getting APCP removed from that list is nearly impossible. The court did not rule that APCP is an explosive.
The court also ruled that the BATFE's change in position on the exemption of rocket motors as propellant actuated devices was improper because the BATFE failed to provide notice and opportunity for comment on the change. Once again, the court did not rule on whether rocket motors were PAD's and in fact explicitly stated that it had not. The consequences of this ruling are unclear. The court ruled that the BATFE's change in position from the 1994 letters to Aerotech to the letter to NAR/TRA in 2000 required notice and comment. But the exemption provided in the 1994 letters is not an improvement. Those letters stated that only assembled model rocket motors meeting the requirements of NFPA 1122 and Consumer Product Safety Commission met their requirements for exemption.
Copies of the 1994 letters were submitted to the court and are in the documents on the TRA website. Part of the first 1994 letter states:
| The exemption at 27 CFR Part 55, section 141(a)(8) includes
propellant-actuated "devices." The term "device" is interpreted to
mean a contrivance manufactured for a specific purpose. Under this
definition, a fully assembled rocket motor would be exempt.
However, the propellant, prior to assembly, would not be exempt.
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 set forth in 16 CFR section 1500.85(a)(8)(ii), would meet ATF requirements for exemption under 27 CFR part 55, section 141(a)(8). |
If that were the exemption in place now, then all reloads would require permits to purchase.
The court delayed action on the remaining counts (dealing with the 62.5 gram limit) until action on NPRM 968 (see below) is completed.
Counsel for the NAR/TRA are reviewing the ruling to figure out what it means and there is a status hearing scheduled for April. Hopefully the court will provide some guidance on the consequences of its ruling.
You can read the ruling and other court documents on the TRA website under the documents tab.
The NAR and TRA took the position that the March court ruling meant that all fully assembled rocket motors were exempt. Because of actions over the last few months by the BATFE, they sought an early status hearing to try and prevent the BATFE from enforcing a different view. Namely what I outlined above: the PAD exemption is restricted to items meeting the CPSC requirements.
This hearing went badly for NAR/TRA. But the news isn't entirely bad.
The BATFE has consistently argued (recently anyway) that in spite of the 1994 letter, rocket motors are not exempt because they are propellant actuated devices. This means that there is only one possible exemption that could apply and that is the toy propellant device exemption. The BATFE is trying to convince anyone who will listen that they have a longstanding exemption based on 62.5 gram total assembled propellant weight. This exemption has never appeared in the regulations and has no force of law. The exemption must be the one for toy propellant devices.
The BATFE has (as I see it) two options for arguing about an exemption for rocket motors:
1) No exemption exists in the regulations and all rocket motors (Estes included) are regulated explosives.
2) The toy propellant device exemption was inadvertently deleted but remains in force until replaced.
The BATFE has taken a third route and argued that they have interpreted the old DOT definition of a toy propellant device and the equivelent is the 62.5 gram limit. This flies in the face of the DOT documents issued to Aerotech classifying most of their H, I, and J impulse reloads as toy propellant devices. Until NPRM 968 is finalized, I think that it is safe to ignore this interpretation. If the BATFE attempts to take an enforcement action, they will have a hard time explaining it in court.
When I checked the court schedule on 17 December I was surprised to see that the status hearing was not listed. I can't tell exactly what happened. Was the date moved up? Delayed? Canceled? (It turns out that the hearing really did happen and the schedule was in error.)
A quick check of court history/documents showed a document I hadn't seen before that was entered on 30 November. This turns out to be an order granting the plaintiff's motion to issue a final ruling on count 1. The ruling is fairly interesting.
First of all the judge wasn't too pleased with the BATFE's progress on NPRM 968:
...informed the Court on November 19, 2004 that not only is that rulemaking not completed and has no schedule for completion, but the agency has commenced yet a new rulemaking proceeding addressing another aspect of Plaintiff's outstanding claims.
And then dismisses the BATFE's objection to a final ruling:
The ATF's sole objection to the motion appears to be that Plaintiffs have not timely filed their motion, insofar as it comes over seven months after the Court issued its memorandum opinion on the parties cross-motions for summary judgment. However, the Court notes that, until ATF's recent status report, it had been the expectation of the Court based on prior representations by the Defendant, that ATF's rulemaking proceeding would be all but completed by now, if not sooner.
Because the Court was waiting on completion of NPRM 968 before issuing any ruling on the remaining counts, this obviously delays a final rule on the lawsuit indefinitely. Thus the court ruled to issue a final ruling on Count 1.
Because of this ruling, I expect that NAR, TRA, and their lawyers are very busy preparing to file the appeal.
The ATF has only recently taken action to make the 62.5 gram exemption a real regulation. It is buried in a Notice of Proposed Rule Making published on 29 Jan. 2003 that concerns fireworks regulations.
The effects of the ATF's position would be that any motor with more than 62.5 grams of propellant (about 120 Newton-seconds impulse or mid G) would require a permit in order to purchase. And they would have to be stored in a magazine. This might have been tolerable to some extent prior to the Safe Explosives Act but now that you can no longer purchase explosives in state without a permit, it is a severe problem.
To illustrate the silliness of the 62.5 gram assembled weight rule, no permit would be required to purchase, store, or use two Aerotech G64 reloads with 62.5 grams of APCP propellant each. But you would have to have an ATF permit to buy a single Aerotech H123 reload which has two 62.5 gram propellant grains and it would have to be stored in an ATF approved magazine.
Same amount of propellant, but treated very differently.
So once a rocket motor crosses this magic 62.5 gram threshold, not only is it not safe for children, (see the CPSC rules) but adults must have the approval of the ATF in order to purchase them.
I was checking the District Court web site to see if any new documents had been posted in preparation for the upcoming status conference on 17 December. The BATFE posted a very interesting status report.
The BATFE states that on 22 March 2004 (immediately after the court ruling) they decided to issue a separate final rule on the exemption for model rocket motors at 27 CFR 555.141. They estimate that they will have a final rule ready for review by the Department of Justice and OMB by February 2005. They also claim that because they are new to the DOJ, they have no idea how long this review will take and therefore when the final rule will actually be published. By separating this from the bulk of NPRM 968 the BATFE is in effect admitting that the December 2004 date for a final rule they published in the June combined Federal Agenda was a lie.
They then give an example of just how slow the DOJ is. The BATFE claims to have forwarded a proposed NPRM on the PAD issue to the DOJ on 16 April 2004 and they expect it to be published in the Federal Register around May 2005.
If it takes over a year to review a proposed rule, how long will it take to review a final rule? I fully expect that the BATFE will stick with the same overly restrictive language that is in NPRM 968. It will be very interesting to see how they tap dance around all of the comments.
The semi-annual regulatory agenda of the Department of Justice was published on 13 Dec. It includes an entry for the PAD change. The description is:
| Abstract: The Department of Justice is proposing to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to clarify that the term ``propellant actuated device'' does not include hobby rocket motors or rocket-motor reload kits consisting of or containing ammonium perchlorate composite propellant (APCP), black powder, or other similar low explosives. |
Strange how the BATFE is planning on making very clear that a particular item is not a PAD but doesn't plan on clarifying just what is a PAD. I would think that the later would be much more useful. They had better be very careful how they word this change or it could make the rocket motors in emergency parachute systems non-exempt.
The estimated date for a final rule on NPRM 968 is now Jan. 2006 but the separate final rule for the 55.141 exemption is not listed.
In the latest federal agenda (text version, pdf version) the ATF lists May 2006 as the estimated time for publishing the PAD NPRM and the final model rocket rule. This is the first appearance of the model rocket exemption as a separate item. In addition, the date for a final rule on the remainder of NPRM 968 is now "TBD".
1 August 2006
I ran across a web page the other day related to this. The Office and Management and Budget (OMB) performs regulatory reviews and has an entry for the hobby rocket motor rule. The only surprising thing about it is that it tags this rule as being related to Homeland Security. Which is very odd as the entry for the PAD rule isn't.
11 August 2006
The ATF has finally published the Hobby Rocket motor rule. After three and a half years we get twenty two pages to justify one paragraph. As a bonus, they also published the PAD NPRM.
Isn't it amazing how after giving a date for publication and missing it many times, this time the ATF says they haven't got a clue (26 July court hearing) and then publishes them shortly thereafter.
If you didn't take the link at the top of the page, it has my thoughts on the final rule for the hobby rocket motor exemption.
Although I am certain that it will be treated the same as my comments on NPRM 968 (ignored that is) I have begun composing a response to the PAD NPRM. The theme is that the items the ATF holds up as examples of PADs also fail the tests they use on rocket motors.
For anyone interested, here is my response to the PAD NPRM. It probably isn't as well written as it should be, but as the saying goes "I ain't no English major, I are a engineer". Comments close on 9 November 2006 so if you read this before then, be sure to add your comments as well. Instructions on how to comment are in the NPRM. Please do not simply copy my comments, although you can use it for ideas. Creativity is a plus.
24 November 2008
NPRM 968 is now dead. In the regulatory agenda published in the Federal Register today its status is listed as "Withdrawn". No explanation was provided. You would think that this is the sort of news that would make the ATF's Explosive Newsletter. It didn't.
In 2002 the Homeland Security Act was passed. During the process of passing this act, another bill which didn't make it on its own was tacked on, the Safe Explosives Act. This act added some new categories of persons who were prohibited from purchasing or even handling regulated explosives. But the most significant part of this act is that it required that everyone who purchased, transported, received, etc. regulated explosives had to have a permit. Even for intrastate commerce. This seems to me to be pretty shaky on constitutional grounds as Congress only has authority to regulate interstate commerce. But that hasn't slowed them down much lately since they are now arguing that anything that even marginally effects interstate commerce can be regulated by the federal government. This point was driven home when I read a court decision for the appeal of an arson case where an apartment building was found to be in interstate commerce. Here is one such case.
The result of this is that anyone who wishes to purchase or use a motor with more than 62.5 grams of propellant will have to have an ATF permit. Which means filling out a form, paying the permit fee, getting fingerprinted, providing a photograph, submitting to an interview with an ATF agent, and waiting for the permit to be issued. The ATF is required by law to issue the permit within 90 days. This was extended by the Safe Explosives Act from 45 days. They rarely met the 45 day requirement in the past and it is unlikely that they will meet the 90 day requirement now. Then you must maintain records and submit to periodic inspections by ATF agents.
How many people will be willing to put up with this? Many that are currently involved in the hobby will get the permit and many will not. Very few that are just getting involved will be willing. The hurdle is just too high.
I applied for and received an ATF permit to use low explosives in 1997 so that I could purchase motors out of state. I do not have a storage magazine since when I first got the permit I was living in an apartment and could not under any circumstances store "explosives". The new application form for permits implies that you must have either storage or a letter confirming contingent storage in order to get a permit. I am concerned that when my permit comes up for renewal that the ATF will require that I either get a magazine or provide for contingent storage at someone else's magazine. Even though the language in the Safe Explosives Act requires that "Each license or permit shall be renewable upon the same conditions and subject to the same restrictions as the original license or permit, and upon payment of a renewal fee not to exceed one-half of the original fee."
I purchased a house on 2002 and notified the ATF as required about my change of address. Only after I inquired about the status of this (several times) did I finally get an updated permit. Nine months later. With the street name misspelled.
My permit was renewed in 2004. You can read about the troubles I had here.
The provision for contingent storage is not as useful as the ATF would think. For example, while on a business trip to Nevada I had some free time and knew that the Rocketry Organization of California was holding a launch at Lucerne Dry Lake. I traveled to and participated in this launch. What if I had purchased a motor that I could not use? My contingent storage would be back in Texas. There would be no legal way for me to transport that motor to Texas except by driving. Not an option.
Hopefully my assurances that I will use motors within 24 hours, return to dealer, transfer to another permit holder, or destroy surplus motors will be sufficient.
The ATF published on 20 March the implementing regulations for the Safe Explosives Act. While reading it I noticed that they are trying to pull a fast one. The regulations currently allow for the issuance of a permit without storage if you establish that you do not need storage.
| 27 CFR 555.49(a)(vi) |
|---|
| The applicant has storage for the class (as described in 555.202) of explosive materials described on the application, unless he establishes to the satisfaction of the Chief, Firearms and Explosives Licensing Center, that the business or operations to be conducted will not require the storage of explosive materials; |
They are changing it to read:
| 27 CFR 555.49(a)(v) |
|---|
| The applicant has storage for the class (as described in 555.202) of explosive materials described on the application; |
I did not notice any explanation for this change in the explanatory text. But it might be there somewhere in the 27 pages.
This is really bad news.
To make things even worse, the ATF suddenly realized that they hadn't been enforcing a provision of the law that has been on the books for over 30 years with respect to the transport of explosives. The ATF had maintained that common carriers did not have to have permits in order to transport explosives and only needed to fill out a form. That suddenly changed this year and the ATF is requiring carriers to keep prohibited persons away from all explosives shipments. See the ATF's explanation here.
The ATF's sudden change in position seems very odd. So what is the law, and what has the ATF been claiming?
| 18 U.S.C. |
|---|
| 842. Unlawful acts
(a) It shall be unlawful for any person-- (1) to engage in the business of importing, manufacturing, or dealing in explosive materials without a license issued under this chapter; (2) knowingly to withhold information or to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive for the purpose of obtaining explosive materials, or a license, permit, exemption, or relief from disability under the provisions of this chapter; and (3) other than a licensee or permittee knowingly-- (A) to transport, ship, cause to be transported, or receive in interstate or foreign commerce any explosive materials, except that a person who lawfully purchases explosive materials from a licensee in a State contiguous to the State in which the purchaser resides may ship, transport, or cause to be transported such explosive materials to the State in which he resides and may receive such explosive materials in the State in which he resides, if such transportation, shipment, or receipt is permitted by the law of the State in which he resides; or (B) to distribute explosive materials to any person (other than a licensee or permittee) who the distributor knows or has reasonable cause to believe does not reside in the State in which the distributor resides. (b) It shall be unlawful for any licensee knowingly to distribute any explosive materials to any person except-- (1) a licensee; (2) a permittee; or (3) a resident of the State where distribution is made and in which the licensee is licensed to do business or a State contiguous thereto if permitted by the law of the State of the purchaser's residence. (c) It shall be unlawful for any licensee to distribute explosive materials to any person who the licensee has reason to believe intends to transport such explosive materials into a State where the purchase, possession, or use of explosive materials is prohibited or which does not permit its residents to transport or ship explosive materials into it or to receive explosive materials in it. (d) It shall be unlawful for any person knowingly to distribute explosive materials to any individual who: (1) is under twenty-one years of age; (2) has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; (3) is under indictment for a crime punishable by imprisonment for a term exceeding one year; (4) is a fugitive from justice; (5) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act; or (6) has been adjudicated a mental defective. (e) It shall be unlawful for any licensee knowingly to distribute any explosive materials to any person in any State where the purchase, possession, or use by such person of such explosive materials would be in violation of any State law or any published ordinance applicable at the place of distribution. (i)It shall be unlawful for any person - (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) who is a fugitive from justice; (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); or (4) who has been adjudicated as a mental defective or who has been committed to a mental institution; to ship or transport any explosive in interstate or foreign commerce or to receive or possess any explosive which has been shipped or transported in interstate or foreign commerce. (Note that this does not include the changes due to the Safe Explosives Act.) |
The ATF is currently claiming that explosives law prohibits certain persons from possessing or transporting explosives. And 842(i) does appear to say that. But it also seems to require a permit for anyone to transport explosives and I would think that this would apply to common carriers. Except in the Q&A section of the ATF publication of explosives law and regulations (The Orange Book) we see:
| 2000 Orange Book Q&A |
|---|
| 21. Are common and contract carriers subject to ATF regulation?
No. Common and contract carriers only provide a delivery service with respect to explosive materials and are, therefore, not subject to the requirements to obtain licenses or permits. However, if an employee of a carrier hired by an explosives purchaser takes possession of the explosives materials at the distributor s premises, the carrier must complete ATF Form 5400.8. The actual transportation of explosive materials by carriers is subject to Department of Transportation regulations. [18 U.S.C. 845(a)(1); 27 CFR 55.103] |
Seems pretty straightforward doesn't it?
After the ATF's change of heart, some carriers stopped accepting explosives for shipment. The US rail system has embargoed explosives with few exceptions.
The very smallest motors can continue to be shipped via USPS ground. The details are in Publication 52 - Hazardous, Restricted, and Perishable Mail on page 26. Only motors classified as 1.4S can be shipped. Only motors with no more than 30 grams of propellant are in this class. So the Estes E, most F, and all G and above motors cannot be shipped this way. I received an E-mail pointing out that the USPS regulations mention the 62.5 gram limit and they thought that this meant that motors larger than 30 grams could be shipped. This is not the case. The publication clearly states that to be eligible for shipment the motors must be Class 1.4S and have one of two UN numbers. They then add additional restrictions which are an almost word for word restatement of the CPSC definition of a model rocket motor quoted above.
In addition, Aerotech has a number of DOT documents on their web site where you can see requests to ship items greater than 30 grams denied. Aerotech does have approval to ship HPR reloads whose individual grains are less than 30 grams. This doesn't seem to me to meet the requirements of the USPS. But Aerotech received approval somehow.
FedEx continues to accept shipments but in addition to the hefty overnight premium, there is a large hazmat fee which makes this cost prohibitive for many shipments.
The Department of Transportation finally published new rules for hazmat transportation that is satisfactory to the ATF. See the ATF's view here. So it looks like explosives transportation might finally get back to normal. But only after the ATF made a mess of things.
Not everyone that can get an ATF permit is willing to put up with the hassles of the process. So is there any way to keep on flying high power rockets without a permit?
Some people believe that a permit holder can purchase the motor for a non-permittee and then supervise them in its use. I am not sure that this is legal.
It is obviously illegal to:
Because you have now "distributed" a regulated explosive to someone who does not hold a permit and that is expressly forbidden.
It is also quite legal for a permittee to allow a non-permittee to assist in the use of regulated explosives. The BATFE is pretty clear about this in their Scenario FAQ. You just have to be careful about the prohibited persons issues. The BATFE does not require that you make any attempt to determine if the person is a prohibited person. But if you know that they are, you cannot allow them to assist.
In that case, can you purchase the motor for a non-permittee and then supervise them in the use of the motor? Maybe.
The only way to know for sure what the BATFE thinks about sponsored flying is to write the BATFE and ask for an official ruling on the issue. Asking your local BATFE inspector is not sufficient. Your inspector may say one thing and another inspector something completely different. An official ruling is the only way to be sure.
Another issue is the dividing line between simple possesion by a non-permittee, which is legal, and distribution. Or how much control must the permittee exert over the non-permittee. Letting them walk out of your sight appears to cross the line because you can no longer exert any control over them.
OK, lets assume for the moment that sponsored flying is perfectly acceptable to the BATFE. Now you have another potential problem. One of the changes in NPRM 968 is to the definition of a manufacturer:
| Manufacturer.
(a) Any person engaged in the business of manufacturing explosive materials for purposes of sale or distribution or for his own use; or (b) Any person engaged in the business of assembling explosive materials from explosive and/or non-explosive materials for purposes of sale or distribution or for his own use. |
Part (a) is currently in the regulations but part (b) is being added. Assembling a reload appears to meet this definition. But if you are not going to sell it, do you have a problem? Only if you are "engaged in the business".
But what exactly does that mean? The only hint is in ATF's ruling 75-31. The only place I have found this is in the Orange Book. Where they say (in part) "Although the term "engaged in the business" is not susceptible to a rigid definition within 18 U.S.C. 841-848, it is interpreted to imply an element of continuity or habitual practice;"
Thus if you frequently assisted non-permittees the BATFE could decide that you are "In the business" and require that you have a manufacturers permit in order to assemble reloadable motors.
This may seem like quite a stretch, but so is calling APCP an explosive.
Fortunately, the change to the manufacturer definition may not happen. The explosives industry took exception to this change in their comments on NPRM 968.
Action is happening on several fronts.
First is the lawsuit by the NAR and TRA against the ATF. The two main points of this lawsuit are that APCP is not an explosive and that the 62.5 gram exemption is not real.
The ATF is required to enforce the laws as passed by Congress. In that law, explosives are defined as: "any chemical compound mixture, or device, the primary or common purpose of which is to function by explosion". This is in 18 U.S.C Chapter 40, which can be found here annotated with the revisions from the Safe Explosives Act. Rocket motors do not explode. If they did, rocketeers would be a very frustrated group. Rocket motors do occasionally over pressurize and cause the motor case to fail. This is usually pretty hard on the rocket but because of the safety codes, never results in injury. After one of these failures, the APCP propellant usually self extinguishes and the unburnt propellant can be found on the ground.
While the ATF would like everyone to think that the 62.5 gram exemption is real, it has never been through the regulatory process as required by 18 U.S.C. Chapter 40 and the Administrative Procedures Act. This requires that new rules and regulations be published (in the Federal Register) for public review and comment. The comments are then reviewed and a final rule published. The 62.5 gram rule has only just been published for comment in 2003. The ATF keeps saying that this is an existing exemption, but they are being untruthful.
The court recently issued a ruling on a couple of the points in the lawsuit. The court said that the ATF properly exercised its power in declaring APCP to be an explosive subject to regulation. The court ruling on this was very narrow. It did not say that APCP met the statutory definition of an explosive but simply that the ATF had the authority to declare it to be an explosive.
The court also said that the ATF had improperly changed their tune on the exemption for rocket motors. In order to change from saying that rocket motors were exempt as propellant activated devices to not being exempt, they had to go through the notice and comment procedures. The ATF plans to issue a notice of proposed rule change on this. They also claim that they can have the final rule in place by the end of the year. I am skeptical that they can move so fast as they still have a final rule that was supposed to be published last November on pest control devices.
Read more about the court ruling on the NAR and TRA web sites.
The second front was opened in 2003 by John Wickman of Wickman Spacecraft & Propulsion Company mainly as a result of the effects of the Safe Explosives Act. Mr. Wickman is working with his Senator to try and get an exemption for rocketry added to 18 U.S.C Chapter 40. This exemption is modeled after the exemption for black powder for use in antique firearms which allows anyone to purchase up to 50 pounds of black powder so long as it is intended for use in antique firearms.
Senator Enzi introduced Senate Bill 724 on 27 March 2003.
This bill was reported out of the Senate Judiciary Committee on 19 June 2003. For an analysis of the modified bill look here. This bill has run into opposition from two ATF lackey's in the Senate and will have a very hard time passing. John Wickman is claiming to have some magical method of pushing an alternative through but I have no confidence that it will work. I think that the legislative door has been slammed shut.
The third front is in response to the NPRM for the 62.5 gram exemption. The ATF is required to review and respond to all comments they receive on this notice. The original deadline for comments was 29 April 2003 but has been extended to June 13. (see press release) The National Association of Rocketry has published some guidelines on responding to this notice.
The extension was at the request of the International Society of Explosives Engineers. They have a position paper available on their web site and it looks like they are at least as annoyed with the ATF as the rocket community is. To get an idea of how they feel, here is a quote from the beginning of the paper:
First a few general observations:
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Sounds familiar.
You can read the text of my response here.
The comment period is now closed and we get to wait while the ATF (behind closed doors) decides what they want to do. The FCC recently demonstrated that they didn't care about any of the comments on media ownership and published the final rule they (and big business) wanted. I fully expect the ATF to do the same.
Update on NPRM 968 status: The various agencies of the federal government publish in the Federal Register twice a year their agenda for regulatory action. The May 2003 version showed that the BATFE planned on issuing a final rule from NPRM 968 in Feb. 2004. The Dec. 2003 edition shows that date has slipped until October 2004. Interestingly, all of estimated dates (and there were several) for the BATFE slid by about 8 months.
The June 2004 agenda slid this date to December 2004.
The December 2004 agenda has slid it into 2006. But as noted earlier on this page, the BATFE has stated that they are issuing a separate final rule for the rocket motor exemption with an unknown date of publication.