2008 Board of Directors Election
Kenneth J. Good
"Words From the President"
Regulatory Status; Where We Are and Where we Are Going
By Ken Good
From "Tripoli Report" Volume 16 Number 1, February, 2005
Regulatory Status; Where We Are and Where we Are Going
By Ken Good
From "Tripoli Report" Volume 16 Number 1, February, 2005
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We have closed down a particularly eventful year in the history of Tripoli and of advanced civilian rocketry. Some outstanding events we have witnessed in which TRA members were involved include the first confirmed civilian payload shot into space, a feat achieved by Ky Michaelson’s GoFast team (this team consisting largely of TRA members). And of course, following shortly after this were the landmark Space Ship One flights, resulting in the first civilian manned space shots and the claiming of the X Prize. It is a curious dichotomy to consider these far-reaching efforts in advanced non-governmental rocketry, while we still tussle with over-regulation of sport rocketry at a fairly petty comparative level. Although regulatory relief developments in 2004 were a mixed bag of positive and negative outcomes, the outgoing year at least saw some movement after being stalled in Federal Court for many months.
March – Federal Court Judge Reggie Walton at long last issued rulings on all four outstanding counts of our legal case against the ATF. It was a mixed result. Count #1, in which we asserted APCP was not an explosive, and thus should not be regulated by ATF, was ruled in the favor of ATF. The court opinion appears to be flawed in several areas and is at odds with the science/fact presented, thus is open to appeal (more on that later). On count #3, which alleged the ATF had improperly regulated fully assembled rocket motors which could be considered exempt as “propellant actuated devices” (PADs), a letter issued by ATF in 2000, refuting this exemption, was ruled as improper rule making – a win for us. Counts 4 and 5, which refer to ATF regulating rocket motors by weight and intended use without proper public commentary, were also confirmed in our favor. Since the ATF has begun the required Notice of Proposed Rule Making (NPRM) in the form of NPRM 968, the court ruled that these counts would be held for final ruling until the ATF completes this NPRM. April – At a scheduled status hearing between our legal counsel and ATF’s, the March rulings were discussed, particularly the ruling on count 3. We asserted that we took this ruling to mean that there were no restrictions on PADs. Judge Walton supported this position, and instructed both legal counsels to communicate directly on this matter and bring any further regulation disputes on this to the court. We subsequently put our position in writing to the ATF counsel as the court directed, while ATF never issued any response or dispute. Since ATF counsel had also announced in the hearing that their client was planning to begin a new NPRM to address proper regulation of PADs, it appeared as though the ATF was checked on regulating PADs for the moment – so we thought. It is also worth noting that ATF counsel asserted at this hearing that NPRM 968 would be completed by the scheduled status hearing in December, as would this brand new one to be initiated for PADs (we were more than slightly skeptical about this assertion). August – the presidents and vice-presidents of TRA and NAR met with Lew Raden, Assistant Director of the ATF's Office of Explosives. Mr. Raden is new to this job, and through another ATF contact, we were advised that there may be an opportunity to renew a constructive dialog and perhaps begin a process that may result in reaching some mutual agreement. We were received cordially, and some alternatives to the current ATF approach to regulation were discussed in general terms,. This may or may not be an avenue for continued effort, and we will continue to investigate if some constructive direction can be put into motion. Some useful insights were gained in this meeting. It became quite clear to me that a great deal of ATF’s concern was for managing perception as much as real risk, and one area they are concerned about is the use of HP rockets as delivery systems for nefarious payloads. The obvious difficulty we have with this concern is that such regulation – of “flying things” - is not really within ATF’s purview, but is rather in the realm of the FAA. This leaves us with an impression that regulating rocket motors as explosives is just a gateway for ATF to get into regulating rockets. Such an agenda certainly leaves a flavor of skepticism with me, as far as hopefulness that we may negotiate something acceptable to us with ATF. Also in August – the other development was the appearance of ATF’s now notorious rocketry FAQ on their website, which appeared to, among other things, communicate a regulatory position on PADs that was counter to what was supposedly decided in court. We advised members that nothing had changed legally to substantiate this FAQ, and to inform us of any enforcement in the field. We didn’t have to wait more than a month, when the Chicago area ATF agents referred to the FAQ as the basis for enforcing one aspect of an inspection (for LEDP renewal) at Al’s Hobby Shop. September/October/November – We gathered information from the field enforcement actions based on the FAQ, and filed for a court date to stop this. We were disappointed and somewhat surprised to receive a ruling from Judge Walton on October 19 that the court considered an interpretation of the ATF position on PADs expressed in their FAQ to be outside the scope of the current case. We did not agree with this, since in reality, a substantive ruling on PADs had always been part of the case (and that’s what we thought we had in March), but we filed a motion to amend the case such that the judge could (again) rule on the basic issue of whether a fully assembled rocket motor was a PAD and completely exempt form ATF regulation unless/until they complete the correct rulemaking process, and also to introduce the FAQ as improper rulemaking. At the same time, we filed what is known as a “54B motion” to have the court rule that count #1, on the core issue of APCP as an explosive, is fully adjudicated and can be severed from the remaining counts, this permitting us to move to an appeal of that ruling. Not surprisingly, ATF legal counsel opposed both motions, in responses that even in my layman’s review looked clumsy and badly written. At one point in these papers, the ATF counsel asserted that NPRM 968 was now projected to be complete in February 2005 (probably at least the third completion date for this NPRM expressed by the ATF). Our counsel wrote a very effective response to the ATF opposition papers. December – during the scheduled status hearing, it appeared that Judge Walton may be losing some patience with ATF road blocking and delays. He ruled in favor of both our motions. He now has before him an amended count 3, on which he will need to issue a more substantial ruling on PADs, and he granted separation of count 1 from the rest of the case. January, 2005 - during the scheduled status hearing, ATF had little to say. No updates on NPRM968, no prediction of when it may be complete, no status on the “PAD NPRM” that originally was supposed to be “completed” by December 2004, but hasn’t yet appeared That brings us to the present - let’s consider where we are heading. First, one may wonder what is happening on the legislative front, since the reader will have noted this absent from my discussion above. In short, we are in a holding pattern on this front at the moment. It was clear that once senate Bill S.724 was stopped late in the 2003 Congressional session that there would be little hope for action in 2004, owing to the national presidential election. The S.724 effort, while disappointing, was effective in facilitating our building up some strong congressional allies, and especially in forging a very good relationship with Senator Mike Enzi. It may be that these relationships will be helpful if/when we renew any legislative effort. We will be discussing with Senator Enzi’s staff what plans or thoughts they may have on a renewed actions in 2005-2006. Overall, at this point we have made an active decision to focus on the legal front, since we now have some outcomes and progress is being made. So, what’s the agenda on the legal front? It is first hoped that Judge Walton will rule in favor of our position on PADs. This will buy us some breathing space while the ATF gets anything going on a PAD NPRM. If we have this window opened to us, there are several ways that we can creatively ensure that we take advantage of what a PAD is – a “fully assembled rocket motor” (not just a single-use motor). But the big game is clearly the appeal on count #1, the paperwork for which is now in process. If we can prevail on that count, it takes ATF out of the regulatory picture, period. The good news on the appeal is that it will be decided by a three-judge panel, and will be handled as a de novo case, meaning that the previous court opinions of the Federal Court have no bearing on the appeal. Also, our legal counsel feel that the appellate court will likely provide a higher standard of review of the facts/science of the case, which are in our favor. The downside to the appeal is that it will probably take about one year and of course will cost us additional legal fees. Where I feel we need to go in a big picture sense is this: Focus on the legal side and gain the needed victories. While this is ongoing, we will still pitch some concepts to the ATF on regulatory change that could ease the problems for us while perhaps enhancing true risk management for them. In conjunction with the NAR, continue to look to establish relationships with other allies in our relief efforts. Through our congressional contacts, continue to keep tuned in to windows of opportunity in Congress that could provide chances of getting helpful legislation passed. If we can gain legal victory, we will have great leverage in putting legislation in place that would cement our legal position. As you can see, this is still a multi-faceted effort that does not ignore any feasible opportunity to gain regulatory relief. One may wonder what happens if we do not achieve the legal victories we want. Of course, we will still have the other avenues open, although clearly, we will be in a less favorable position to leverage change. But the TRA Board is discussing contingencies should we experience legal setbacks, and several ideas are being considered on how we could assist prefectures to ease ongoing regulatory burdens even if eventual relief outcomes aren’t as favorable as we hope they will be. This is not to say we are pessimistic – just that we are working to ensure we make things more tolerable for civilian HP rocketry and ensure the viability of this form of endeavor no matter what hurdles we face. I do want to stress that the upcoming months will be crucial to us, and we will need to make sure all TRA members and interested non-members are engaged in supporting the effort in the months to come. Of course, we will need to continue to fund the legal battle; donations to the legal fund, support for raffles, and any funding ideas members have and will organize will be important. In addition to money, it will be equally important for members to be ready to respond with letters of commentary whenever the ATF puts forth any new proposed rules. This is crucial to ensuring the ATF adheres to legal rulemaking processes – something that can be seen to be a problem for them. I would also like to point out that the massive negative response of rocketeers to ATF’s NPRM 968 has been the main reason that ATF has been unable to promulgate associated rules yet, despite the fact that they intended to do so a long time ago. One reason I want to stress this is that I vividly recall certain parties in the rocketry community deriding TRA’s efforts to respond massively to this NPRM, saying how it would be an ineffective waste of time – it has been anything but that. We are also interested in any ATF enforcement anomalies that take place in the field, as you can see from our counsel’s report to Judge Walton last month. Please send me an e-mail at KJGood@aol.com with details if you have something to report. We will need to focus on enforcement actions that are based on rules not already in place (not just that an ATF agent is giving you a tough time). We will need to get details – dates, agent names, what was reported, what documentation an agent was basing their actions on, etc. This kind of information can help us go to court for injunctive action against the ATF. In closing, I should stress that is those who are reading these words who are the kind of people who will keep advanced civilian rocketry moving ahead. That’s what we are about. Tripoli is, has been, and must remain, an organization that has many layers of activity open to our members. Many will enjoy rocketry as a weekend recreation, and many will find it a compelling passion that will lead them into space. And there will be many who will pursue rocketry at every level between these extremes. I have a belief that we are charting a course through some tough times in which unreasonable fear and overly heightened desires for the perception of public safety are threatening too many freedoms. If we don’t stay vigilant, and if we tire of maintaining our pursuit of reason in governmental regulations, we may see the day when both weekend rocketeers and space shot pioneers have their activities snatched away from them. We must never permit this to happen. |
