During recent months the ATF has stirred up the explosives community by proposing to add a per pound fee on all explosives and removing the statutory limits on permit fees. Fortunately the language in the FY 2006 budget that would have removed the current limits on permit fees didn't survive the budget process. The Senate and Conference reports both chastised the administration for including money in the budget from a tax that not only didn't exist, but hadn't been passed or even submitted to Congress for consideration.
The administration did finally send a letter proposing the per pound explosives tax. I found the document on the web site on the Institute of Makers of Explosives While the IME paid a lot of attention to the tax, they said nothing about another provision in this letter:
| (d) Except as provided by section 846(c) of this Title, the
Attorney General may exempt from all or part of the provisions of
this chapter explosive materials or explosive devices containing
such materials when a determination is made, by regulation, that
the explosive materials or explosive devices--
(1) are of a type that does not pose a threat to public safety; and (2) are unlikely to be used as a weapon. |
This seems pretty straight forward until you think about it a bit and then place it in context.
The ATF has already exempted a wide variety of items and has done so for many years at 27 CFR 55.141. These exemptions were in the regulations in 1990 and probably go all the way back to the original regulations issued in the 1970's. But if you look at the law as passed by Congress, you will find a list of items, activities, or entities exempted at 18 USC 845(a). All of these exemptions also appear in the regulations at 27 CFR 555.141(a). But three additional exemptions also exist which are not in the law. But the law does not currently allow for the ATF to exempt anything other than the few items listed. It would seem that the ATF has been exceeding its authority for some time. No mention is made in the letter that the ATF is in fact already issuing exemptions. Perhaps they hope that Congress will not notice.
But why propose this change to the law now?
As the result of a court ruling last year, the ATF decided they needed to "clarify" the exemption at 27 CFR 555.141(a)(8) for propellant actuated devices so that it would be obvious that rocket motors do not qualify. The ATF claims they submitted this change for internal Department of Justice review in April 2004 with an estimate of publication in the Federal Register of May 2005. As of November 2005, it still hasn't appeared and there is no date set in the latest edition of the Unified Agenda. Why is it taking so long?
The ATF was until recently part of the Treasury Department and they do not have much experience with DOJ reviews of proposed regulations. I suspect that the delay in publication of the PAD clarification and this proposed legislation are connected.
Is it possible that some bright DOJ attorney, while reviewing the PAD language, noticed that the ATF has zero authority to exempt any explosives (not listed at 18 USC 845(a)) from regulation, and then placed a hold on its publication until such authority existed?
If this is the case, then some predictions can be made.
1) The changes to the PAD exemption will not be published until the law is changed.
2) The new version of the model rocket motor exemption (which has been separated from the rest of NPRM 968) will not be published until the law is changed.
This will leave the situation as it is now. Since 1998 there has not been an exemption on the books for any rocket motor. (Including Estes) The enforcement of the regulations is left to the whim of local investigators or any other petty tyrant.
This leaves the question of if this change to the law is a good thing that should be supported by the rocketry community?
On the plus side it would allow the ATF to put an exemption for at least some rocket motors into the regulations.
On the minus side, the ATF would get to decide what was exempt. I think that it is pretty clear at this point where they intend to draw the line. Which would be a step backward from the situation before 1998.
I had thought that the lack of explicit authority at 18 USC Chapter 40 for the ATF to add exemptions was purely academic until recently. The case of two foreign students being arrested in South Carolina and charged with illegally transporting explosives per 18 USC 842(a)(3)(A) proved that it is not academic.
What brought this to my attention was a news item related to a motion filed by the defense referencing an FBI report on the potassium nitrate/sugar propellant they had with them. (read more including the FBI report at: Tampa News) The report also shows that they had common green safety fuse with them. Another document makes it clear that they are being charged with illegally transporting the fuse. Strangely they were not charged with illegally receiving the fuse. I believe that they were not charged with illegal possession because although they were "aliens" they were in "lawful nonimmigrant status".
This type of fuse is commonly sold for use with consumer fireworks without an ATF explosives permit. The reason for this appears to be a minor change in the exemption for black powder and related items as listed in the regulations.
The statutory and regulatory exemptions are:
| 18 USC 845(a)(5) |
|---|
| commercially manufactured black powder in quantities not to exceed fifty pounds, percussion caps, safety and pyrotechnic fuses, quills, quick and slow matches, and friction primers, intended to be used solely for sporting, recreational, or cultural purposes in antique firearms as defined in section 921 (a)(16) of title 18 of the United States Code, or in antique devices as exempted from the term "destructive device" in section 921 (a)(4) of title 18 of the United States Code; |
| 27 CFR 555.141(b) |
| Black powder. Except for the provisions applicable to persons required to be licensed under subpart D, this part does not apply with respect to commercially manufactured black powder in quantities not to exceed 50 pounds, percussion caps, safety and pyrotechnic fuses, quills, quick and slow matches, and friction primers, if the black powder is intended to be used solely for sporting, recreational, or cultural purposes in antique firearms, as defined in 18 U.S.C. 921(a)(16) or antique devices, as exempted from the term "destructive devices" in 18 U.S.C. 921(a)(4). |
Note the requirement for sporting use etc. applies to all of the items listed at 18 USC 845(a)(5) but in the regulation the condition is only attached to black powder. The fuse could not be exempt as part of the consumer fireworks exemption that the ATF created at 555.141(a)(7) because that applies only to items from a very specific and short list of UN classification numbers. Visco fuse has a different classification.
So we now have the situation where the ATF has allowed by regulation what the law says is an illegal sale of explosives. Only later when it was handy was the actual law applied. The same thing could happen with any of the exemptions at 555.141 that do not appear in the law. Including consumer fireworks, model rocket motors, gasoline, fertilizers, etc.
I occasionally search for any bills containing the keyword "explosives" and just found that a bill (S.325) has been introduced by Senator Thad Cochran (R-MS) to give the Attorney General the authority to exempt explosives from regulation.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SPECIFIC EXEMPTION.
Section 845(a) of title 18, United States Code, is amended--
(1) in paragraph (5), by striking ``and'' after the
semicolon;
(2) in paragraph (6), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(7) pest control pyrotechnics manufactured, imported,
used, and stored in accordance with regulations issued by the
Attorney General.''.
SEC. 2. EXEMPTION AUTHORITY.
Section 845 of title 18, United States Code, is amended by
inserting at the end the following:
``(d) The Attorney General may exempt from all or a part of the
provisions of this chapter explosive materials or explosive devices
containing such materials when a determination is made, by regulation,
that the explosive materials or explosive devices--
``(1) are of a type that does not pose a threat to public
safety; and
``(2) are unlikely to be used as a weapon.''.
SEC. 3. EFFECTIVE DATE.
The amendment made by this Act shall take effect 180 days after the
date of enactment of this Act.
|
The most amazing thing about this bill is the provision about pest control devices. Shortly after the Safe Explosives Act was passed in 2002, the ATF issued a proposed rule to exempt explosive pest control devices from regulation. Although the proposal was published after the SEA it was the result of a petition submitted long before that. The ATF has never issued a final rule on this even though the SEA made the situation much worse. It quietly vanished from the Regulatory Agenda between the April and December 2007 issues. The April 2007 agenda indicated that a final rule would be issued in December 2007. The December agenda said nothing.
What is even better about the "exemption" is that it requires that these pest control devices follow the explosive regulations. Which is exactly the case now. This makes no sense at all.
Section 2 is nearly idential to the language in the letter above. Fortunately it does not contain the explosive tax provisions. Even better is that it does not remove the limits on permit fees. But those things can always be added in later.
There are no cosponsors for this bill so its most likely fate is to die in committee. But like something in a bad zombie movie it could rise from the dead at any second.