11 August 2006
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[Federal Register: August 11, 2006 (Volume 71, Number 155)]
[Rules and Regulations]
[Page 46079-46101]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au06-7]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 555
[Docket No. ATF 6F; AG Order No. 2829-2006]
RIN 1140-AA25
Commerce in Explosives--Hobby Rocket Motors (2004R-7P)
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice is amending the regulations of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify
that the requirements of part 555 do not apply to model rocket motors
consisting of ammonium perchlorate composite propellant, black powder,
or other similar low explosives, containing no more than 62.5 grams of
total propellant weight, and designed as single-use motors or as reload
kits capable of reloading no more than 62.5 grams of propellant into a
reusable motor casing. This final rule is intended to provide rocketry
hobbyists with guidance to enable them to enjoy their hobby in
compliance with the safety and security requirements of the law and
regulations.
The remaining proposals made in ATF's notice of proposed rulemaking
(Notice No. 968) will be addressed separately in a forthcoming
rulemaking document or documents.
DATES: This rule is effective October 10, 2006.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives; U.S. Department of Justice; 650 Massachusetts Avenue, NW.,
Washington, DC 20226, telephone (202) 927-8203.
SUPPLEMENTARY INFORMATION:
I. Background
ATF is responsible for implementing Title XI, Regulation of
Explosives (18 United States Code (U.S.C.) chapter 40), of the
Organized Crime Control Act of 1970. One of the stated purposes of the
Act is to reduce the hazards to persons and property arising from
misuse and unsafe or insecure storage of explosive materials. Organized
Crime Control Act of 1970, Public Law 91-452, Sec. 1101, 84 Stat. 952
(1970). Under section 847 of title 18, U.S.C., the Attorney General
``may prescribe such rules and regulations as he deems reasonably
necessary to carry out the provisions of this chapter.'' Regulations
that implement the provisions of chapter 40 are contained in title 27,
Code of Federal Regulations (CFR), part 555 (``Commerce in
Explosives'').
Under the law, the term ``explosives'' is defined as ``any chemical
compound[,] mixture, or device, the primary or common purpose of which
is to function by explosion.'' The definition states that the term
``includes, but is not limited to, dynamite and other high explosives,
black powder, pellet powder, initiating explosives, detonators, safety
fuses, squibs, detonating cord, igniter cord, and igniters.'' See 18
U.S.C. 841(d).
ATF is required under the law to publish an annual list of items
that fall within the coverage of the definition of explosives. Since
publication of the first ``Explosives List'' in 1971, ammonium
perchlorate composite propellant (APCP) has been classified by ATF as
an explosive. This classification is based upon the statutory
definition of ``explosives,'' which contemplates that items can
``function by explosion'' either by detonating (dynamite and other high
explosives detonate) or by deflagrating (low explosives, such as black
powder, pellet powder, and rocket propellants, deflagrate, or burn very
quickly). Because APCP deflagrates when confined, it has been
classified by ATF as an explosive.
Under the law and its implementing regulations, persons engaging in
the business of manufacturing, importing, or dealing in explosive
materials are required to be licensed. Other persons who acquire or
receive explosive materials are required to obtain a permit. Licensees
and permittees must comply with the provisions of part 555, including
those relating to storage and other safety requirements, as well as
recordkeeping and theft reporting requirements. However, certain
activities and items have been given exempt status under the law (see
exemptions at 18 U.S.C. 845(a)) and its implementing regulations at 27
CFR 555.141.
Although APCP is an explosive material, ATF currently exempts from
regulation rocket motors containing 62.5 grams or less of this and
other explosive propellants for reasons set forth below. Rocket motors
that contain more than 62.5 grams of APCP are subject to all applicable
Federal explosives controls pursuant to 18 U.S.C. 841 et seq. and the
regulations in part 555.
II. Regulatory History
In 1981, ATF exempted from regulation Class C explosives, including
``common fireworks,'' and certain other explosives designated by United
States Department of Transportation (DOT) regulations. Included among
the items in the DOT regulations that were exempted by ATF were ``toy
propellant devices and toy smoke devices'' that were defined by DOT as
items ``consist[ing] of small paper or composition tubes or containers
containing a small charge of slow burning propellant powder or smoke
producing powder.'' ATF determined that 62.5 grams was the maximum
amount of propellant that could be deemed a ``small charge'' for toy
propellant devices as described in 49 CFR 173.100(u). Subsequently, DOT
regulations were revised and the term ``model rocket motor'' was used
to apply to items previously described as ``toy propellant devices.''
Between 1996 and 1998, ATF updated its regulations (27 CFR
555.141(a)(7)) to reflect various DOT revisions. In doing so, however,
ATF inadvertently removed from the subsection all language under which
``toy'' sport rocket motors had previously been exempted and failed to
add language documenting the continued exemption of motors containing
62.5 grams or less of propellant. See 61 FR 53688 (Notice No. 841,
October 15, 1996); 63 FR 44999 (T.D. ATF-400, August 24, 1998). Despite
this administrative error, ATF has continued to exempt sport rocket
motors containing 62.5 grams or less of propellant from the provisions
of the Federal explosives laws and regulations.
The Safe Explosives Act (SEA), enacted in 2002 as Title XI of the
Homeland Security Act, substantially amended the Organized Crime
Control Act of 1970. In drafting the SEA, Congress took into
consideration existing Federal explosives law and regulation, but did
not do away with ATF's regulation of rocket motors containing more than
62.5 grams of propellant, nor did it decide that motors containing no
more than 62.5 grams of propellant should be regulated. Thus, it can be
argued that Congress acquiesced in continuance of the exemption.
Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462
(1959); Ward v. Commissioner of the Internal Revenue Service, 784 F.2d
1424 (9th Cir. 1986). This final rule clarifies in the regulations
ATF's long-standing policy and reflects that, after careful
consideration, ATF has determined that the 62.5-gram threshold is an
appropriate exemption level.
[[Page 46080]]
III. Litigation--Tripoli Rocketry Association and National Association
of Rocketry v. ATF
In February 2000, the Tripoli Rocketry Association (Tripoli) and
the National Association of Rocketry (NAR) brought a cause of action
against ATF in United States District Court for the District of
Columbia, alleging that:
1. APCP does not ``function by explosion'' and, therefore, APCP is
not an explosive material subject to control by ATF;
2. ATF violated the Administrative Procedure Act (APA) by including
APCP on the ``List of Explosive Materials'' without subjecting the List
to ``notice-and-comment'' rulemaking;
3. Even if APCP is an explosive, sport rocket motors are propellant
actuated devices (PADs) and are, therefore, exempt from regulation
pursuant to section 555.141(a)(8); and
4. ATF violated the APA and acted arbitrarily and capriciously in
setting the maximum-propellant-weight threshold for exempting sport
rocket motors at 62.5 grams.
In a subsequent amendment to the complaint, the plaintiffs alleged
that certain kits are designed to enable rocket hobbyists to construct
rocket motors containing more than 62.5 grams of propellant by placing
multiple propellant grains (each weighing 62.5 grams or less) in a
reusable motor casing, and that ATF had determined that these kits pose
the same dangers and require the same controls as single-use rocket
motors containing more than 62.5 grams of propellant and had classified
them accordingly. According to plaintiffs, this classification is
invalid because ATF did not engage in ``notice-and-comment'' rulemaking
before making this determination.
On March 19, 2004, the district court granted partial summary
judgment to ATF on the issue of whether APCP is an explosive. In
addition, the court concluded that ATF's determination that sport
rocket motors containing not more than 62.5 grams of propellant are not
PADs, which was confirmed by ATF in a letter dated December 22, 2000,
was invalid because it was made without compliance with the APA. The
court based its decision on its review of two letters issued by ATF in
1994 that appeared to take a different position from the 2000 letter
with respect to the applicability of the PAD exemption to hobby rockets
containing not more than 62.5 grams of propellant. Finally, the court
held in abeyance a ruling on the remaining counts of the lawsuit
pending the completion of ATF's rulemaking that, among other things, as
reflected in this document, will establish by regulation ATF's
exemption for rocket motors containing no more than 62.5 grams of APCP,
black powder or other similar low explosives (Notice No. 968, 68 FR
4406, January 29, 2003).
On February 10, 2006, the United States Court of Appeals for the
District of Columbia Circuit determined that ATF's classification of
APCP as an explosive could not ``be sustained on the basis of the
administrative record,'' 437 F.3d at 81, and therefore remanded the
case to the district court in order to allow ATF to ``reconsider'' the
classification of APCP and offer a coherent explanation for whatever
conclusion it ultimately reaches. Tripoli Rocketry Ass'n v. Bureau of
Alcohol, Tobacco, Firearms and Explosives, 437 F.3d 75, 84 (D.C. Cir.
2006). The court explained that ATF had not ``provided a clear and
coherent explanation for its classification of APCP'' and did not
``articulate the standards that guided its analysis.'' Id. at 81. The
court did not vacate ATF's designation of APCP as an explosive, because
it ``was in place long before the present litigation.'' Id. at 84.
Therefore, APCP remains classified as an explosive material and
continues to be regulated accordingly by ATF.
On remand, the district court held a status conference with the
parties on April 20, 2006, in which the court stated that ATF could
pursue its testing and reconsideration efforts and work to provide a
more thorough basis for the classification of APCP pursuant to the D.C.
Circuit opinion. Presently, ATF is engaged in the reconsideration
process and the matter is pending in district court.
IV. Miscellaneous
The carefully-framed exemption embodied in this rule is maintained
with a view to maximizing ATF's performance of its statutory
responsibilities within the limits of available resources, without
compromising public safety. If all hobbyists and retailers who receive
or distribute rocket motors containing no more than 62.5 grams of
explosive were required to obtain permits and licenses, ATF resources
would be stretched beyond their limits to ensure compliance with
regulatory requirements and effective administration of the existing
Federal explosives laws.
Specifically, the legal requirements placed upon hobbyists and
retailers would, in turn, impose an unmanageable administrative burden
on ATF. Industry statistics garnered from proprietary manufacturing
information reflect that in 2004, there were more than 1.5 million
purchasers of small rocket motors. Without the proposed exemption,
hobbyists seeking permits to purchase the motors would undergo
background checks, submit applications, and be subject to inspection by
ATF. Additionally, based upon U.S. Census Bureau and industry
information, it is conservatively estimated that there are
approximately 10,000 retailers, including nationwide chain retail
stores, as well as hobby, game, and toy stores that sell small rocket
motors. These retailers sell the vast majority of their smaller motors
to children and other hobbyists who use these smaller rocket motors
exclusively. If required to obtain licenses, these retailers would be
subject to requirements similar to those enumerated above and would
need to maintain proper records of receipt and distribution of rocket
motors.
In view of the large universe of hobbyists who use small rocket
motors and currently are not required to obtain permits--and also in
view of the large number of currently-unlicensed retailers selling
small rocket motors, it is apparent that to discontinue ATF's long-
standing practice of exempting motors containing no more than 62.5
grams of explosive material would be to place upon ATF an
administrative burden that would greatly outstrip the agency's
licensing, inspection, and enforcement resources. An increase from the
current 4,000 Federal explosives licensees to a potential 14,000
licensees and an increase from 8,000 permittees to a potential 1.5
million permittees would result in an unmanageable workload for ATF's
administrative personnel and would hamper the agency's ability to
effectively manage the overall regulation program with respect to both
explosives and firearms. For instance, a massive increase in license
and permit applications would undercut ATF's ability to promptly
process firearms license applications if it became necessary to draw
upon the firearms licensing staff already working at capacity.
Furthermore, regulating motors with no more than 62.5 grams would
consume these resources even though the hobby rockets that use these
smaller motors have been found to pose a relatively small public safety
hazard.
V. Notice of Proposed Rulemaking
On January 29, 2003, ATF published in the Federal Register a notice
of proposed rulemaking (NPRM) soliciting comments from the public and
industry on a number of proposals to amend the regulations in part 555
(Notice No. 968, 68 FR 4406). ATF issued the NPRM, in part, pursuant to
the Regulatory
[[Page 46081]]
Flexibility Act (RFA), which requires an agency to review--within ten
years of publication--rules for which an agency prepared a final
regulatory flexibility analysis addressing the impact of the rule on
small businesses or other small entities.
Notice No. 968 proposed amendments to the regulations that were
initiated by ATF and amendments proposed by members of the explosives
industry. One proposal initiated by ATF concerned an amendment of the
regulations to clarify the items that are exempt from the requirements
of part 555. In particular, ATF proposed to amend 27 CFR 555.141 to
provide that the regulations in part 555 do not apply to the
importation and distribution of model rocket motors consisting of APCP,
black powder, or other similar low explosives; containing no more than
62.5 grams of total propellant weight; and designed as single-use
motors or as reload kits capable of reloading no more than 62.5 grams
of propellant into a reusable motor casing. This proposal mirrored
ATF's long-standing policy, which had initially been adopted by the
agency to give effect to the ``toy propellant device'' exemption that
had existed in the regulations until 1998. Discontinuance of the 62.5
gram or less exemption would render it infeasible for ATF effectively
to administer the Federal explosives controls with respect to rocket
motors, including those that pose the most threat to public safety and
homeland security. Without the exemption, all requirements of the
Federal explosives controls would apply to all persons who acquire and
store hobby rockets, regardless of the amount of propellant contained
in the motors, thereby spreading ATF resources so thin that ATF could
not ensure compliance with regulatory requirements and effective
administration of the Federal explosives law.
The comment period for Notice No. 968, initially scheduled to close
on April 29, 2003, was extended until July 7, 2003, pursuant to ATF
Notice No. 2 (68 FR 37109, June 23, 2003). ATF received approximately
1,640 comments in response to Notice No. 968. This final rule addresses
only the proposal made in Notice No. 968 with respect to model rocket
motors. The remaining proposals made in Notice No. 968 will be
addressed separately in a forthcoming rulemaking document or documents.
VI. Analysis of Comments and Decisions With Respect to Model Rocket
Motors
Approximately 620 comments addressed ATF's proposal to exempt from
regulation model rocket motors containing up to 62.5 grams of
propellant. Comments were submitted by sport rocketry hobbyists,
businesses that manufacture or sell hobby rocket motors and related
products, one sport rocketry organization (the National Association of
Rocketry (NAR)), and others.
In its comments (Comment Nos. 974 and 1570), NAR stated that it is
a ``non-profit scientific organization dedicated to safety, education,
and the advancement of technology in the sport rocket hobby in the
United States.'' The commenter further stated that, founded in 1957, it
is the oldest and largest sport rocketry organization in the world,
with over 4,800 members and 110 affiliated clubs. According to the
commenter, it is the recognized national testing authority for safety
certification of rocket motors in the United States and it is the
author of safety codes for the hobby that are recognized and accepted
by manufacturers and public safety officials nationwide. Thirty-seven
(37) comments expressed specific support for NAR's position as set
forth in its comments in response to Notice No. 968.
Most commenters addressing the proposal argued that ATF should not
regulate model rocket motors or model rocket propellant for reasons
discussed below. Other commenters expressed specific concerns regarding
the proposed regulation and those concerns are also addressed below.
A. Commenters' Reasons for Objecting to ATF's Regulation of Model
Rocket Motors and Model Rocket Propellant
1. Rocket Motors and Rocket Propellants Are Not Explosives
Under the law, the term ``explosives'' is defined as ``any chemical
compound[,] mixture, or device, the primary or common purpose of which
is to function by explosion.'' The definition states that the term
``includes, but is not limited to, dynamite and other high explosives,
black powder, pellet powder, initiating explosives, detonators, safety
fuses, squibs, detonating cord, igniter cord, and igniters.'' See 18
U.S.C. 841(d).
As previously explained, ATF is required under the law to publish
an annual list of items that fall within the coverage of the definition
of explosives. Since publication of the first ``Explosives List'' in
1971, ammonium perchlorate composite propellant (APCP), the propellant
used in many high-powered rocket motors, has been classified by ATF as
an explosive. This classification is based upon the statutory
definition of ``explosives,'' which contemplates that items can
``function by explosion'' either by detonating (dynamite and other high
explosives detonate) or by deflagrating (low explosives, such as black
powder, pellet powder, and rocket propellants, deflagrate, or burn very
quickly). Because APCP deflagrates when confined, it has been
classified by ATF as an explosive.
Approximately 500 commenters contended that rocket motors and
rocket propellants (including APCP) are not explosives because they do
not ``function by explosion.'' In general, the commenters argued that
rocket motors and rocket propellants neither detonate nor deflagrate.
NAR argued that ATF's authority to regulate, in any manner, any form of
propellant or rocket motor under the Federal explosives law first
requires a determination that such items have as their primary or
common purpose to function by explosion. NAR contended that ATF failed
to make the required statutory determination for rocket motors or APCP
in the notice of proposed rulemaking. As such, NAR concluded that ATF
cannot regulate rocket motors consisting of APCP as an explosive. NAR
also argued that ATF has failed to recognize that rocket motors
containing APCP as a fuel source do not have as their primary or common
purpose to function by explosion. According to the commenter--
The leading manufacturer of APCP for rockets (Aerotech, Inc.)
has recently explained that the formulation of APCP utilized in such
rockets consists of between 40 and 77 percent ammonium perchlorate
as the oxidizer, with the remainder consisting of various
supplemental metals such as aluminum or magnesium for fuel, various
other chemicals that serve as burn rate catalysts and antioxidants,
and a synthetic rubber binder. The rubber binder effectively
passivates the ammonium perchlorate rendering the resultant
composite non-explosive.
NAR disagreed with ATF's determination that rocket motors
containing APCP function by explosion because they deflagrate when
ignited. As stated in its comment:
It is widely acknowledged, and accepted by ATFE, that the speed
of the burn front in materials that deflagrate is on the order of
meters per second (in a detonation reaction the velocity is
typically more than one kilometer per second), whereas the speed of
the burn front in materials that burn is on the order of millimeters
per second * * * the data relied upon by ATFE to date clearly
reveals that when APCP is lit the burn front propagates on the order
of `millimeters per second,' which under ATFE's own concept is
indicative that APCP `burns' and does not `deflagrate.'
[[Page 46082]]
NAR provided information to support its position that APCP burns
and does not deflagrate. Based on that information, NAR concluded that
``when ignited APCP in rocket motors typically burns at a rate of less
than 25 millimeters per second. Accordingly, APCP in rocket motors does
not deflagrate when ignited, and thus ATFE cannot classify APCP in
rocket motors as an explosive.''
Most commenters expressed views similar to that of NAR. The
following excerpts reflect the commenters' position:
If the ATF's interpretation were correct every rocket ever lit
would explode on the pad every time without fail. Obviously it
doesn't do that. Solid Rocket Propellant (APCP) is a tried and true,
safe technology and that is why most of the worlds [sic]
professional and hobby rockets use it as the fuel of choice.
(Comment No. 88)
APCP does not `function by explosion.' It functions by
combustion * * * It is and has been obvious to the professionals in
the field for several decades that APCP does not function by
explosion. It does not belong, and never has belonged, on the
BATFE's list of explosives. (Comment No. 834)
`Explosion' entails either `deflagration' or `detonation'. The
generally accepted definition for detonation is the propagation of
the burn front at greater than 1 kilometer per second. Deflagration
is defined by a burn front propagating on the order of meters per
second. Ammonium Perchlorate Composite Propellant (APCP), the most
common hobby rocketry propellant, generally burns at less than 25
millimeters per second, putting it well below the definition of both
deflagration and detonation. Thus, APCP burns; it does not explode.
(Comment No. 854)
Their [solid rocket motors] sole purpose is to propel a rocket
by the ejection of hot, high pressure gases produced by the
controlled combustion of one of more solid monolithic propellant
grains in a high-pressure combustion chamber through an expansion
controlling orifice device called a nozzle. The solid rocket motor/
propellant system is specifically designed not to explode, and
therefore is not an explosive, nor is it an explosive device, and
therefore should not be regulated by the BATFE. (Comment No. 895)
Deflagration is characterized by a subsonic burn rate measured
in meters per second; * * * APCP merely burns at the rate of
millimeters per second. When confined, and should the casing rupture
due to over-pressure, the remaining unburnt APCP typically self-
extinguishes. An individual could safely ignite one end of APCP, and
it would burn much like a road flare! The inclusion of APCP on the
list of regulated explosives has no logical basis * * * (Comment No.
1071)
[H]obby rocketry fuel, particularly APCP, is not an explosive,
either by nature or by design. APCP neither detonates nor
deflagrates. Detonation is characterized by a supersonic burn rate,
measured in kilometers per second. The APCP used in hobby rockets
cannot be made to detonate by use of a blasting cap. (Comment No.
1164)
ATF has never produced any technical studies, tests, or
scientific papers to support the contention that APCP functions by
explosion, or even that APCP does detonate or deflagrate. (Comment
No. 1547)
Department Response
Beginning in 2000, the issue of classifying APCP as an explosive
material has been litigated in the United States District Court for the
District of Columbia. See Tripoli Rocketry Ass'n v. Bureau of Alcohol,
Tobacco, Firearms and Explosives, 337 F. Supp. 2d 1 (2004). After
assessing technical and legal arguments presented by the Government and
opposing rocketry associations, the district court held that ATF's
decision that APCP is a deflagrating explosive was permissible. Tripoli
Rocketry Association v. ATF Civil Action No. 00-273 (Mar. 19, 2004).
As previously stated, in February 2006, the D.C. Circuit disagreed
with the district court on this issue because in its view ATF had
failed to provide a sufficiently thorough justification to support its
classification with a specific, articulated standard for deflagration.
Tripoli Rocketry Assoc., Inc. v. Bureau of Alcohol, Tobacco, Firearms
and Explosives, 437 F. 3d 75 (D.C. Cir. 2006). However, the court
declined to set aside the classification, and APCP thus remains on the
``List of Explosive Materials'' that ATF is obligated to maintain. See
Tripoli Rocketry Assoc., 437 F. 3d at 84. The case was remanded to the
district court so that ATF may reconsider the matter and offer a
coherent explanation for whatever conclusion it ultimately reaches. Id.
Furthermore, the Court of Appeals offered clear guideposts as to the
characteristics of a classification decision that would pass judicial
review. See, e.g., id. at 81. Accordingly, ATF will utilize those
guideposts in conducting testing of APCP as part of the reconsideration
process. ATF will test and analyze APCP throughout the summer and fall
of 2006 and submit reconsideration results upon completion.
2. Model Rockets/Rocket Motors Containing APCP Are ``Propellant
Actuated Devices'' and, as Such, Are Exempt From ATF Regulation
Propellant actuated devices (PADs) imported or distributed for
their intended purposes are exempt from regulation pursuant to 27 CFR
555.141(a)(8). The term ``propellant actuated device'' is defined in
section 555.11 as ``[a]ny tool or special mechanized device or gas
generator system which is actuated by a propellant or which releases
and directs work through a propellant charge.'' In applying the
regulatory definition, ATF has classified certain types of products as
propellant actuated devices: Aircraft slide inflation cartridges,
inflatable automobile occupant restraint systems, nail guns and diesel
and jet engine starter cartridges.
Approximately 300 commenters contended that model rocket motors
meet the definition of a PAD and, as such, are exempt from ATF
regulation. Some of the arguments raised by the commenters include:
A rocket motor, fuel grains and rockets are comparable to
exempted tools such as a nail gun with it's [sic] cartridges and
nails. Like a nailgun, a rocket motor directs the gases generated by
a propellant. Just as the nailgun and cartridge are used to propel a
nail, the rocket motor and fuel grains are used to propel a rocket
vehicle. (Comment No. 331)
APCP burning inside a rocket motor casing produces hot,
pressurized gasses which are directed out of the nozzle end of the
motor. These rapidly exiting gasses cause the rocket to move in the
opposite direction. No explosion occurs. Thus an APCP rocket motor
is essentially a `propellant actuated device', a category of devices
that is already explicitly exempted from regulation. (Comment No.
734)
Until the mid 1990s, the BATFE had exempted all APCP rocket
motors, regardless of propellant weight, because APCP motors were
considered to be propellant actuated devices, which were exempt from
BATFE permits. APCP rocket motors have not changed since then, and
Congress has not changed its definition of an explosive; therefore,
the BATFE should never have started regulating APCP as an explosive
in the first place, and should not start regulating APCP in the
future. (Comment No. 982)
NAR commented that although the Federal explosives law does not
specifically include an exemption for PADs, the legislative history of
the law clearly intended that such devices should be exempt by noting
that the term ``explosives'' is not ``intended to include propellant
actuated devices or propellant actuated industrial tools used for their
intended purpose.'' According to the commenter:
Congress must have intended that propellant actuated devices be
exempted because their `primary or common purpose' is not to
function by explosion but rather is to perform useful non-
destructive work. Rocket motors fit this concept precisely--their
purpose is not destructive, but to perform useful work by propelling
a rocket.
NAR stated that a rocket motor serves but one function, i.e., to
expel gases through its nozzle from a burning propellant for the
purpose of generating the thrust necessary to launch the rocket.
Based on its nature and function, the commenter contended that a
rocket motor is a propellant actuated device that is exempt from
regulation because ``it qualifies as either a `special mechanized
[[Page 46083]]
device,' or a `gas generator system,' if not both, and because a
rocket motor is both `actuated by a propellant' and `releases and
directs work' (i.e., thrust) `through a propellant charge' * * *''
Department Response
ATF's position is that the term ``propellant actuated device'' does
not include hobby rocket motors or rocket-motor reload kits containing
APCP, black powder, or other similar low explosives. The definition of
``propellant actuated device'' in 27 CFR 555.11 is ``[a]ny tool or
special mechanized device or gas generator system which is actuated by
a propellant or which releases and directs work through a propellant
charge.'' To determine the common meanings of ``tool,'' ``special
mechanized device,'' and ``gas generator system,'' it is useful to look
to Merriam-Webster's Collegiate Dictionary (Tenth Edition, 1997)
(Webster's). Webster's defines ``tool'' in pertinent part as: ``a
handheld device that aids in accomplishing a task; the cutting or
shaping part in a machine or machine tool; a machine for shaping
metal.'' Webster's defines the word ``device'' as ``a piece of
equipment or a mechanism designed to perform a special function.'' For
a particular device to be a ``special mechanized device,'' Webster's
appears to suggest, it would be necessary that it be both unique and of
a mechanical nature. Webster's defines ``generator'' as ``an apparatus
in which vapor or gas is formed'' and as ``a machine by which
mechanical energy is changed into electrical energy.'' Further,
Webster's defines ``system'' as ``a regularly interacting or
interdependent group of items forming a unified whole.'' Thus,
Webster's may be read to suggest that a ``gas generator system'' is
properly defined as a group of interacting or interdependent mechanical
and/or electrical components that generates gas.
Based on the above definitions and conclusions, the Department
believes that rocket motors, regardless of the amount of propellant
contained therein, cannot be brought within the regulatory definition
of propellant actuated device. Rocket motors are not ``tools,'' because
they are neither handheld nor a complete device. Nor are they a metal-
shaping machine or a part thereof. Further, they cannot be considered
to be a ``special mechanized device'' because, although clearly
designed to serve a special purpose, they lack the necessary indicia of
a mechanized device. Clearly, rocket motors are in no way reminiscent
of a mechanism since they consist essentially only of propellant
encased by a cardboard, plastic, or metallic cylinder. Though such
motors may include a nozzle, retaining cap, delay grain and ejection
charge, the rocket motor is little more than a propellant in a casing,
incapable of performing its intended function until fully installed,
along with an ignition system, within a rocket. Finally, because rocket
motors have no interacting mechanical or electrical components, rocket
motors cannot be deemed to be a gas generator system.
For the reasons set forth above, the Department does not believe
that rocket motors of any size should be classified as propellant
actuated devices.
On March 19, 2004, the United States District Court for the
District of Columbia issued a memorandum opinion in Tripoli Rocketry
Ass'n. 337 F. Supp. 2d 1. In its opinion, the court specifically
addressed two letters issued by ATF, one dated April 20, 1994, and the
other dated December 22, 2000, in which ATF had discussed the
applicability of the propellant actuated device (``PAD'') exemption to
rocket motors. See id. at 10-13. The 1994 letter gave the impression
that ATF had exempted sport rocket motors containing 62.5 grams or less
of propellant as propellant actuated devices (PADs) under 27 CFR
555.141(a)(8). The 2000 letter more accurately and clearly stated that
rocket motors did not meet the regulatory definition of a PAD, but that
rocket motors with 62.5 grams or less of propellant were exempt from
regulation, in light of the pre-existing ``small charge'' threshold
that has historically been in place to exempt ``toy'' devices.
The court unambiguously determined that ATF's 2000 letter was at
variance with its 1994 letter. The court then concluded:
Thus, before the ATF could [have] altered its earlier
interpretation of the applicability of the PAD exemption, it was
required to undertake notice-and-comment rulemaking as required by
the [Administrative Procedure Act] and the [Organized Crime Control
Act of 1970]. Because the ATF failed to do so, the Court concludes
that its December 22, 2000 pronouncement regarding the applicability
of the PAD exemption to sport model rockets was not in compliance
with the OCCA and the APA.
The court also explicitly set out the controlling 1994 ATF
statement on the applicability of the PAD exemption in its Opinion:
Of particular significance to the plaintiffs, is the statement
in the April 20 Letter that
[t]he 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.
Id. (emphasis added). The ATF went on to state that
[t]he 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).
Id. Opinion at 15.
ATF is currently regulating rocket motors in conformity with this
ruling, exempting from regulation fully assembled rocket motors
containing no more than 62.5 grams of propellant, and producing less
than 80 newton-seconds (17.92 pound seconds) of total impulse with
thrust duration not less than 0.050 seconds. This final rule does not
materially change this state of affairs inasmuch as rocket motors
containing 62.5 grams or less of propellant will continue to be exempt
from regulation. However, the final rule does alter ATF's position in
that a fully assembled rocket motor containing 62.5 grams or less of
propellant, while still exempt from regulation, will not be classified
as a propellant actuated device under this final rule.
3. The Proposed 62.5-Gram Exemption Threshold Is Arbitrary and Lacks a
Reasoned Basis, Is Unreasonable and Unnecessarily Restrictive, and Is
Inconsistent With Existing Weight Limits for Other Explosives
a. The Proposed 62.5-Gram Limit Is Arbitrary and Lacks a Reasoned Basis
Approximately 120 comments objected to ATF's proposal to exempt
from regulation rocket motors containing 62.5 grams or less of
propellant, arguing that the proposed limit is arbitrary and that ATF
did not explain the basis for the proposed limit. In its comment, NAR
stated that the agency failed to present any scientific basis to
support the proposed 62.5-gram limit, presented no factual data that
demonstrates why the proposed amount represents a reasonable limit on
possession of APCP, and offered no data or test results as to the
relative properties of this quantity of APCP. To the extent that ATF
based its 62.5-gram weight limitation on regulations enacted by the
United States Department of Transportation (DOT) or the Consumer
Product Safety Commission (CPSC), the commenter argued that ATF failed
to explain in the NPRM why a weight limit
[[Page 46084]]
created by another Federal agency should be applied to ATF's explosives
regulations. As stated by the commenter:
What possible bearing does a DOT regulation imposing a weight
limit on rocket motors in order to avoid hazardous synergistic
effects with other hazardous materials, or a CPSC regulation
protecting children from using rocket motors above a specific weight
limit have on adults that possess and store rockets?
Several commenters argued that the proposed 62.5-gram exemption is
not based on Federal explosives law, noting that the law ``makes no
exemptions of explosives based on weight except for black powder used
in antique firearms and devices.'' (Comment No. 88)
Other commenters raised concerns similar to those mentioned above:
I'd also like to know from whence the threshold weight of 62.5
grams was derived. This seems to be an arbitrary number since the
behavior of 62.5 grams of APCP is not much different than that of 80
grams. Does the Bureau have any scientific basis for this figure?
(Comment No. 33)
The 62.5 gram limit * * * has no scientific basis. The BATF has
no tests or justification to show that this 62.5-gram limit (which
is inherited from old shipping regulations) has any rational meaning
in this situation. (Comment No. 325)
The 62.5 gram limit is arbitrary * * * It has no technical basis
as to what may or may not constitute a hazard to the public.
(Comment No. 327)
ATFE has focused on a 62.5 gram limit without showing the
reasoning behind this number. ATFE has quoted (in the past) other
agencies' use of a 62.5 gram unregulated limit, such as DOT and
CPSC, for ATFE's unregulated limit. However, the absence of
technical data does not support ATFE's reasoning. (Comment No. 864)
ATFE has failed to present any scientific basis to support the
62.5 gram limit. ATFE presents no factual data that demonstrates why
this amount represents a reasonable limit on possession of this non-
explosive material. (Comment No. 974)
The proposed change in exemptions for model rocket motors
introduces an arbitrary limit of 62.5 grams per motor or reload kit.
This limit has no basis in scientific data. The proposed rule
implies that a single rocket motor of 62.5 grams of propellant is
safe, but one with 62.6 grams is unsafe. Two motors with 62.5 grams
of propellant are safe, but one with 62.6 grams is unsafe. One
thousand motors with 62.5 grams of propellant is safe, but a single
motor with 62.6 grams is unsafe. ATFE is obviously not concerned
with safety issues related to the total amount of APCP stored since
there is no limit on the total number of motors or reloads stored,
as long as no single motor exceeds 62.5 grams. (Comment No. 1033)
[A] total weight limit of APCP such as 40-50 pounds would
address the individual who, without a permit, would be able to
obtain as many motors containing 62.5 g or less as he wants. For
example, the proposed arbitrary 62.5g limit would not stop somebody
from having 1000 motors each containing 62.5 g for a total of 62.5
kg (137.5 pounds!) of APCP. (Comment No. 1170) The ATFE gives no
explanation or justification why 62.5 gram is an appropriate limit.
I notice that my state (New Jersey) regulations do not require a
permit for owning and storing up to 220 pounds (100,000 grams!) of
rocket propellant; likewise no permit is required for owning and
storing up to 50 pounds of black powder * * * ATF is basing the 62.5
gram limit on the Consumer Product Safety Commission limit, which
was set as a limit for children handling rocket motors. This limit
for requiring permits is arbitrary and excessive and has not been
demonstrated by the ATFE as being appropriate. (Comment No. 1230)
The proposed limit of 62.5 grams is without substantiation. Why
not higher? Why not lower? What is the technical reason that a
higher limit would be problematical? * * * Rocket motors containing
less than 62.5 grams of propellant comprise only a small part of the
hobbyist rocket spectrum. (Comment No. 1626)
Department Response
The Department has considered the comments and disagrees with the
arguments suggesting the exemption from regulation should be higher
than 62.5 grams.
The origin of the 62.5-gram limit is found in regulations covering
devices that are in the nature of toys. In 1981, ATF exempted from
regulation, under 27 CFR 55.141(a)(7), ``[t]he 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).'' One of these DOT subsections, 49
CFR 173.100(u), listed ``toy propellant devices and toy smoke devices''
as Class C explosives and described them as ``consist[ing] of small
paper or composition tubes or containers containing a small charge of
slow burning propellant powder or smoke producing powder.'' It also
provided that ``these devices must be so designed that they will
neither burst nor produce external flame on functioning * * *.'' In
construing its regulation, ATF determined that 62.5 grams was an
appropriate ceiling for what could be considered a ``small charge'' of
propellant for these ``toy'' devices, a determination that was in
keeping with guidelines published by the National Fire Protection
Association and with regulations promulgated by the Consumer Product
Safety Commission's (CPSC's) predecessor organization at the request of
both the National Association of Rocketry and Estes Industries. CPSC
applies its 62.5-gram exemption in such a manner as to prohibit the
sale of some rocket motors to children, by regulating propellant weight
and energy output. The Department believes it is appropriate, whenever
possible, for Federal agencies to regulate commodities in a consistent
manner.
ATF is charged with safeguarding the public from dangers associated
with explosives that are misused, criminally diverted or improperly
stored. Public safety would no doubt be increased were ATF to apply
regulatory controls to all sport rocket motors. However, ATF has
rationally crafted an exemption from its explosives controls for sport
rocket motors containing small amounts of explosive material and for
other devices that are in the nature of toys (e.g., toy plastic or
paper caps for toy pistols, trick matches, and trick noise makers). ATF
has drawn the line for exemption at 62.5 grams of propellant because
this amount represents a reasonable balance between ATF's goal of
allocating its resources in the most efficient and effective manner and
its goals of maintaining public safety. ATF believes that rockets
utilizing motors containing 62.5 grams of propellant or less have a
shorter range that is less likely to allow use as a weapon against a
particular target without detection. In addition, rockets powered by
motors containing no more than 62.5 grams of propellant have less power
to cause significant damage when used against a target. As discussed in
more detail below, the Department believes that rocket motors
containing more than 62.5 grams of propellant pose a significant threat
to public safety because they can be modified for use as weapons.
ATF has conducted testing of the performance characteristics
associated with rockets powered by motors containing 62.5 grams or less
of APCP and of the performance characteristics associated with rockets
powered by motors containing more than 62.5 grams of APCP. Although
many of the results of this testing are classified, the testing showed
clearly that to raise the exemption threshold beyond 62.5 grams would
pose an increased threat to public safety and homeland security.
In conclusion, the exemption of rocket motors containing 62.5 grams
or less of propellant is consistent with ATF's congressional mandate to
reduce the hazard arising from misuse and unsafe storage of explosive
materials while not unduly or unnecessarily restricting or burdening
law-abiding citizens in their lawful use of explosives.
[[Page 46085]]
b. The Proposed 62.5-Gram Limit Is Unreasonable and Unnecessarily
Restrictive
Approximately 190 comments maintained that the proposed exemption
threshold is unreasonable and too restrictive for adult sport rocketry
hobbyists and the commenters recommended that the threshold be
increased. Several commenters proposed various upper limits for APCP in
rocket motors, with one commenter suggesting that the exemption
threshold be increased to 1,000 pounds. Following are excerpts from
some of the comments:
The 62.5 gram limit proposed by the ATF is based on the
regulations of the consumer product safety commission * * * These
regulations allow any motor less than 62.5 grams to be sold to the
general public and to be used by unsupervised minors to fly toy
rockets. However, large rocket motors cannot be purchased by the
general public * * * It should be possible to allow responsible
certified adults to buy and use the larger hobby rocket motors that
are controlled by the certification process of the TRA and NAR
without adding ATF regulation. (Comment No. 69)
This proposal to exempt only rocket motors with no more than
62.5 grams propellant is too strict. Rocket motors currently
conforming to this requirement are only suitable for model (low-
power) rockets, which are considered by many adults to be
essentially toys or entry level projects. Adults are interested in
certifying in and taking on the many challenges of high-power
rocketry, requiring higher total impulses, and thus, rocket motors
with more propellant. (Comment No. 128)
I urge you to reconsider the 62.5 gram hobby/amateur rocketry
exemption limit as unreasonable and at the very least increase the
limit for APCP to 7800 grams [17.2 pounds] with a motor diameter
not-to-exceed 98mm, the size and amount of APCP necessary to make an
'N' -class motor which is the highest used with any frequency by
hobby and amateur rocketeers. (Comment No. 326)
Within the Tripoli Rocketry Association, there are currently
3072 individuals who are on record as being certified to use motors
containing more than 62.5 grams of APCP * * * Increase the exemption
to include motors containing up to 40 pounds of propellant. This is
equivalent to the largest rocket motor that can be flown under NFPA,
Tripoli Rocketry Association and National Association of Rocketry
rules. (Comment No. 819)
[T]he selection of 62.5 grams of APCP as the upper limit of what
is permitted for unrestricted access * * * does not even come close
to satisfying the needs of rocket hobbyists * * * the large majority
of high-power rocket flyers would have their needs served if an
exemption were granted to allow them to acquire and use rocket
motors that contained up to 2,800 grams [6.17 pounds] of APCP
without the need for a permit. (Comment No. 924)
Department Response
APCP is an explosive material. By nature, explosive materials
present unique safety hazards. Accordingly, they are regulated by law
and very few categories of explosive materials are expressly exempted
in any way from the law's requirements. Therefore, it cannot be said
that ATF's regulatory stance with respect to rocket motors containing
APCP or other explosive materials is unreasonable or unnecessary.
Indeed, ATF's long-standing policy to exempt from regulation motors
containing 62.5 grams or less of propellant reflects the agency's
desire to accommodate the interests of rocketry hobbyists and to
balance those interests with important public safety and homeland
security concerns. As noted previously, in view of their inherent
dangers, very few types of explosive materials are exempted in any way
from the Federal explosives controls administered by ATF.
Some commenters suggested that the exemption be extended to 40
pounds, 17.2 pounds or 6.17 pounds. However, unrestricted commerce in
motors containing APCP in these amounts would present a significant
risk to public safety and homeland security. By regulating motors with
more than 62.5 grams of propellant, terrorists, felons, and other
prohibited persons will be prevented from gaining access to large
motors that could pose an increased threat and that could be more
readily adapted for terrorist or other criminal purposes. APCP can be
used to make a very effective pipe bomb or other improvised explosive
device that could be used for criminal or terrorist purposes.
Furthermore, motors containing more than 62.5 grams of propellant can
be used to power rockets capable of carrying large warheads containing
either explosives or other noxious substances. Rockets powered by
motors containing more than 62.5 grams of propellant can be directed at
targets from a great distance, avoiding detection and apprehension of
persons who would use them for criminal or terrorist purposes.
Likewise, the proposed exemption is reasonable because it is comparable
to other regulations and exemptions from other agencies addressing low
explosives.
A commenter points out that ``responsible certified adults'' should
have access to larger hobby rocket motors for lawful purposes. Such
certification refers to procedures required by rocketry associations,
which are not imposed upon hobbyists who are not members of the
specific associations and which have no application whatsoever to
terrorists or criminals who might seek to gain access to large rocket
motors for nefarious purposes. ATF does not believe that voluntary
procedures are sufficient to safeguard public safety and homeland
security. In order to responsibly implement the Federal explosives
laws, the exemption established by this final rule will impose
mandatory controls on all persons seeking to acquire rocket motors
containing more than 62.5 grams of propellant and, in this regard, will
among other things require that persons acquiring such large motors
undergo a background check and obtain a Federal permit.
c. The Proposed 62.5-Gram Limit Is Inconsistent With Existing Weight
Limits for Other Explosives
In general, the regulations at 27 CFR 555.141(b) specify that the
requirements of part 555 do not apply to commercially manufactured
black powder in quantities not to exceed 50 pounds if the black powder
is intended to be used solely for sporting, recreational, or cultural
purposes in antique firearms.
Approximately 30 commenters maintained that a similar exemption
should be established for rocket motors containing APCP. In its
comment, NAR stated the following:
[N]otwithstanding ATFE's proposal to limit the exemption for
rocket motors containing 62.5 grams or less of APCP * * * elsewhere
in its explosives regulations ATFE establishes higher weight limits
for arguably similar materials * * * ATFE permits an individual that
possesses an antique firearm to purchase up to 50 pounds of black
powder for use in that firearm without obtaining an ATFE-issued
permit or storing the material in an ATFE-approved magazine * * *
Those ATFE exemptions are not conditioned upon whether the bullet to
be used in the antique firearm contains a specific quantity of black
powder or whether, by design or intent, the individual will use one
or more bullets at the same time in the antique firearm.
Other commenters argued that APCP is less of a public safety hazard
than black powder, due to its significantly lower burn rate and non-
explosive nature and, as such, should also be exempt from regulation.
Some of their arguments are set forth below:
[T]he best solution to regulating hobby rocket motors * * *
would be a parallel to the exemption for black powder * * * while I
would feel vastly safer having 50 pounds of APCP around the house
than I would having 50 pounds of black powder (because APCP is
inherently much safer to handle and store, compared to black
powder), I think most educational and hobby and rocketeers don't
need 50 pounds of propellant on hand * * * an exemption for a total
weight limit of 20 pounds * * * of propellant would be equitable and
reasonable. (Comment No. 325)
[[Page 46086]]
My understanding is that gun enthusiasts are allowed to own and
transport as much as 50 pounds of black powder. A similar rule for
rocketry makes better sense. In fact, it is easy to argue that
rocket users should be allowed to have more total mass than gun
owners because the black powder used in guns is in powder form which
is much more flammable than the pellet form used for rockets.
(Comment No. 142)
APCP is far less dangerous than Black Powder for which there
exists an exemption of 50 lbs for antique firearms collectors. For
rocketry, I believe an exemption on the order or [sic] 100-200 lbs
would be very reasonable. This amount * * * would allow small
business in the industry and the majority of the consumers to
function unburdened and within very safe limits. (Comment No. 806)
I understand that antique gun owners do not need a LEUP [low
explosives user permit] to purchase, or are required to use a
explosives magazine to store, up to 50 pounds of Black Powder
propellant (which unlike APCP is very explosive). I have a hard time
understanding why I can store 50 pounds of very explosive Black
Powder in my closet if I'm an antique gun hobbyist but I can't store
3 ounces of APCP non-explosive rocket propellant if I'm a rocketry
hobbyist. I propose that rocket hobbyist[s] be given the same 50
pound exemption * * * (Comment No. 1444)
BATFE's proposal to impose a weight limit of 62.5 grams of APCP
in rocket motors in order for the exemption of 27 CFR
55.141(a)(7)(v) to apply is wholly inconsistent with existing weight
limits for other explosives. It is well-established that loose black
powder poses a significantly greater hazard than chunks of APCP, in
its easier ignitability, rapid burn rate even when unconfined, and
its sensitivity to static electricity. Yet, the regulations permit
up to 50 pounds of black powder to be stored without restriction.
(Comment No. 1537)
Department Response
Congress determined that any person may purchase commercially
manufactured black powder in quantities of 50 pounds or less, solely
for sporting, recreational, or cultural purposes for use in antique
firearms or antique devices without complying with the Federal
explosives laws. Congress enacted this exemption as part of the
original 1970 Act, although the exemption initially allowed the
acquisition of only five pounds of black powder. In 1975 the exemption
was increased to 50 pounds, again by the Congress. Accordingly, the
commenters who refer to the black powder exemption as one created by
ATF are in error.
The comparison between the black powder exemption and the exemption
for certain model rocket motors is a poor one. The Department's
regulatory authority lies within the sound discretion of the Attorney
General, consistent with the scope of his authority under 18 U.S.C.
chapter 40 and the Administrative Procedure Act. It is being exercised
in this final rule in the Attorney General's best efforts to give voice
to Congress's intention that the Federal explosives controls be
administered in such a way as to balance the need to prevent the misuse
of explosives with the need for persons to have access to explosives
for lawful purposes without undue regulation. It is significant that
the exemption for black powder was increased in 1975 through
legislation, rather than by regulation. Accordingly, the commenters'
comparison of the proposed regulatory exemption to the statutory
exemption for black powder is not persuasive and will not result in a
change in the final rule.
4. Model Rocket Motors, Propellants, and Model Rockets Are Not a Threat
to Homeland Security
Approximately 45 commenters argued that model rocket motors and
propellants, as well as model rockets, do not pose a threat to homeland
security and should not be regulated by ATF. Other commenters
(approximately 50) contended that the proposed regulation, if adopted,
might actually jeopardize homeland security. The commenters argued that
requiring sport rocketry hobbyists to obtain a Federal permit would
result in an increase in the number of people with access to
explosives. Following are excerpts from some of the comments:
ATFE's concern with hobby rocket propellants such as Ammonium
Perchlorate Composite Propellant is misplaced. It is simply not
effective as an explosive for destructive purposes * * * Neither is
it a credible terrorist threat as a missile against aircraft. Hobby
rockets do not have guidance systems. The subtleties of the physics
of dynamic stability, the vagaries of the wind, and available launch
systems simply do not allow an unguided rocket to be aimed
accurately against any target as small as an aircraft. Since
terrorists can presumably acquire guided military rockets on the
black market, the weaponization of hobby rocket motors is not
credible. (Comment No. 91)
Simple analysis of the attributes of sport rockets would make it
abundantly clear that they are wholly unsuited to the tasks sought
by terrorists:
Sport rockets are unguided.
Sport rockets have very limited range (only a few can
reach 10,000 feet; most go no higher than 2,000 to 3,000 feet) and
are highly susceptible to adverse weather conditions * * *
Payloads are minimal at best * * *
Rockets are not easy to setup and launch unobtrusively
* * *
Substantial modifications would be necessary to turn a
sport rocket, even a large one, into a weapons delivery system * * *
(Comment No. 269)
Requiring rocket hobbyists to obtain an explosives permit is
counterproductive to security, as it means that thousands of
hobbyists who normally would never have a need for real explosives
would now be permitted to obtain them. (Comment No. 301)
Possession of an LEUP may encourage otherwise disinterested
persons to obtain real explosives. I believe that an increased
number of people having access to true explosives will have an
adverse and significant impact on public safety. (Comment No. 740)
A terrorist or other illicit user has many explosives available
to them and wouldn't logically use amateur rocket propellants
because they are relatively expensive (as compared to fertilizer and
fuel oil, gasoline, gunpowder, lpg [liquefied petroleum gas],
propane, etc.). (Comment No. 849)
Given all of the readily available unregulated materials that
are available to a terrorist, the BATFE's approach to the regulation
of APCP is by this analysis a waste of taxpayer's time and money. If
large numbers of APCP-based IEDs [improvised explosive devices] were
being encountered by law enforcement, there might be a cause of
action * * * IEDs are typically constructed of far more commonly
available, less expensive, and unregulated materials * * * (Comment
No. 1622)
Department Response
The Department has considered the comments regarding the threat
posed by sport rocket motors. For the following reasons, motors with
more than 62.5 grams of propellant present very real security and
public safety risks. Rocket motors containing large amounts of APCP can
power rockets more than 30,000 feet into the air, frequently requiring
high-power rocketry hobbyists to obtain waivers from the Federal
Aviation Administration prior to a launch. These large rocket motors
could also be used to power rockets carrying explosive or noxious
warheads miles downrange into a fixed target. Commenters state that
sport rockets are unguided, not easy to set up, and have a limited
range. These are, in fact, some of the reasons ATF has maintained an
exemption for small sport rockets with 62.5 grams or less of
propellant. However, rockets using more than 62.5 grams of propellant
are capable of stable flight over a fairly long range (one mile or
greater). A willing, determined criminal or terrorist could assemble a
weapon that utilizes a large rocket motor and launch such a device at a
populated area, stadium, or transportation center in a matter of
minutes from a distance sufficient to avoid detection. In addition,
commercially available software can calculate launch parameters to fire
a rocket horizontally or at an angled
[[Page 46087]]
trajectory. Rockets can be utilized to hit fixed targets, such as
buildings, or be shot into populated areas with a reasonable degree of
accuracy. Likewise, a rocket being used as a weapon could be launched
from the bed of a truck, thereby making the launch site and any
evidence of the launch mobile. The longer the range of the rocket, the
greater the likelihood that the persons using them for criminal
purposes would succeed in their attack and evade detection and
apprehension. Finally, APCP could be used as an explosive filler in a
pipe bomb or other improvised explosive device. For purposes of
homeland security and the global fight against terrorism, all of these
factors must be taken into account.
The potential for terrorist or criminal misuse of rocket motors
containing APCP or other propellant explosive is, of course, only one
side of the equation when balancing homeland-security needs against the
ability of law-abiding citizens to participate in hobby rocketry
activities. The Department is fully aware that hobbyists have a
legitimate and lawful desire to acquire explosive materials in pursuit
of their recreational activities. In keeping with Congress's intention,
ATF has maintained a long-standing exemption from the Federal
explosives controls for hobby rocket motors containing 62.5 grams or
less of low explosive materials. This exemption covers more than 90
percent of all rocket motors that are sold to hobby rocketry
enthusiasts and encompasses all rocket motors that can lawfully be
possessed without a license or permit or complying with the other
requirements of Federal law. Under this final rule, a Federal permit
will be required for persons purchasing motors containing more than
62.5 grams of propellant and reload kits designed to enable the
assembly of motors containing more than 62.5 grams of propellant per
motor. Again, establishing the exemption level at no more than 62.5
grams of propellant mitigates the burden on rocketry enthusiasts while
addressing the threat to public and homeland security presented by
larger motors.
Even if this rule results in more permits being issued to rocketry
hobbyists, the Department does not believe that this requirement will
result in such permittees using the permit to acquire other types of
low explosives. There is no evidence to indicate that rocketry
enthusiasts are interested in acquiring explosives other than those
contained in rocket motors, and associated components. Even if rocketry
enthusiasts choose to use their Federal explosives permit to acquire
other types of explosives, only persons with no criminal record or
other prohibiting factors will be issued a permit. In addition, all
permittees must demonstrate their ability to store the explosives they
acquire in accordance with the regulations in 27 CFR part 555.
Accordingly, even if the commenters are correct, the acquisition of
other types of explosive materials by rocketry enthusiasts will not
pose a threat to public safety. For this reason, the Department does
not believe these comments warrant a change in the proposed rule.
5. ATF Does Not Need To Regulate Model/Sport Rocketry
Approximately 100 commenters maintained that there is no need for
ATF to regulate the model/sport rocketry hobby. Some commenters argued
that the hobby is already subject to the requirements of many other
governmental authorities at the Federal, State, and local levels. Other
commenters stated that the hobby is also subject to the rules and
regulations of non-governmental organizations, including the National
Fire Protection Association (NFPA), NAR, and the Tripoli Rocketry
Association. In its comment, NAR stated the following:
[R]ocket motors themselves as well as their operation are
specifically regulated by a variety of other government authorities.
Specifically, the U.S. Department of Transportation (`DOT')
regulates the storage, transport, containerization, and sale of
rocket motors used by the hobbyists * * * the U.S. Federal Aviation
Administration (`FAA') regulates launches, flight locations,
airframe composition, rocket weight, and requires various
governmental notifications * * * the U.S. Consumer Product Safety
Commission (`CPSC') regulates the hobby by prohibiting minors from
purchasing motors and propellants used in high-powered sport rockets
* * * Local and county ordinances as well as state regulations
address fire protection issues and launch locale restrictions. The
hobby is also extensively monitored for compliance with codes
promulgated by the National Fire Protection Association, which are
incorporated by reference into many state laws.
Other commenters expressed similar views:
Sport rocketry is subject to many, many regulatory agency rules
and regulations including those of the Department of Transportation,
Federal Aviation Administration, Consumer Product Safety Commission,
and local and national Fire Marshalls [sic]. Government regulations
notwithstanding, sport rocketry is also directed by self regulation
from national organizations concerned with the safety and promotion
of sport rocketry. (Comment No. 15)
The existing National Fire Protection Association rules on
rocketry provide adequate rules for safety in the use of hobby
rocket propellant, and no further rules are necessary by the Federal
government. (Comment No. 852)
Regulation of rocket motors is unnecessary. The high power
rocket motor industry and the National Association of Rocketry and
the Tripoli Rocketry Association already do a good job regulating
access to high power rocket motors. (Comment No. 1439)
Department Response
Government agencies tailor their regulations to facilitate their
specific mission. For instance, DOT regulations are primarily designed
to ensure the safe transportation of explosive materials. ATF's
regulations, on the other hand, are designed to prevent the diversion
and criminal misuse of explosives and also to ensure that explosives
are safely and securely stored. Therefore, although there are numerous
agencies and organizations involved in the regulation of explosives,
ATF's regulations are necessary to accomplish its specific mission.
In addition to Government agencies, ATF is aware of the self-
regulation efforts of rocketry clubs and organizations. This self-
regulation is laudable. However, it does not, nor can it, provide a
mechanism to ensure that persons prohibited under Federal law from
acquiring explosives are denied access to large rocket motors.
Voluntary club regulation and certification provide some oversight of
club members, but this final rule will govern all persons, including
potential terrorists, felons, or illegal aliens. Moreover, it will
apply to all sellers of rocket motors containing more than 62.5-grams
of explosive material as well as to sellers of reload kits designed to
enable the assembly of motors containing more than 62.5 grams of
explosive material.
6. The Proposed Regulation Is Not Necessary or Justified for Correction
of a Demonstrated Public Safety Issue
Several commenters objected to the proposed rule, contending that
ATF does not need to regulate model rocket motors or propellant because
model rocketry is a safe hobby, both in terms of personal injury and
homeland security. Following are excerpts taken from some of the
comments:
[I]n the well over 250 million flights in the many decades that
the hobby has existed, there have been a grand total of zero
fatalities (yes, zero) due to rocketry. * * * Given the exemplary
safety record of rocketry as a hobby, what possible reason can there
be for regulating the motors we use? (Comment No. 30)
I have flown over 5000 rockets in my years in the hobby and
watched over 25,000 others fly, including many large rockets that
this regulation would cover. I have never seen anyone seriously
injured by a rocket, nor
[[Page 46088]]
have I ever seen one that was used as a weapon or explosive device
or that could have been used as an effective weapon* * * Several
million adults and young people build and fly model rockets each
year without danger to public safety; the hobby is safer than any
outdoor sport. (Comment No. 49)
The ATFE has no need to regulate rocket motors, since they pose
little risk to the public. According to the most recent data
published on the ATFE web site referencing the comprehensive list of
materials used in explosive and incendiary devices since 1991, APCP
is not listed in the construction of even one device. (Comment No.
797)
The consumers who use APCP rocket motors have done so for
decades with an unprecedented safety record, a record that is far
better than that of (for example) any high-school sporting activity.
Those consumers have pursued their activities under the watchful eye
of the Department of Transportation * * * and the Federal Aviation
Administration * * * Commercial consumer rocket motors are certified
via rigorous test by one or more organizations * * * Additional
regulations to an already-highly-regulated activity will not provide
additional safety, when that safety has already been realized.
(Comment No. 834)
Sport Rocketry * * * has one of the best safety records of all
hobbies during the past 50 years. There have been no major injuries
or property damage when conducted according to the rules established
by the National Association of Rocketry and the Tripoli Rocketry
Association. (Comment No. 1008)
Department Response
The Department acknowledges the efforts of many within the rocket
hobbyist community to promote safety; however, this final rule is
designed not simply to promote safety among rocket hobbyists but rather
to promote the safety of all persons, including persons who potentially
could be targets of terrorist or other attacks involving rockets
powered by large APCP rocket motors.
Access to large unregulated amounts of APCP poses a threat to
homeland security and U.S. transportation systems because the explosive
material could be used against U.S. buildings, transportation centers,
or metropolitan areas. The rocket motors themselves are essentially
packets of explosives that can be modified or used in such a manner as
to create an effective weapon or explosive device. APCP would make an
effective filler for a pipe bomb or other improvised explosive device.
Permitting, licensing, and recordkeeping requirements make the
explosive less attractive and less available to prohibited persons. All
explosive materials present some safety hazard and this regulation
serves to limit the hazards presented by unregulated use, possession,
and storage of APCP.
In a post-September 11 environment, the Department believes it
would be irresponsible to allow unregulated access to large quantities
of explosive materials, particularly in configurations that can power
the flight of large rockets capable of being outfitted with large
warheads. Despite the safety efforts of NAR and Tripoli, the Department
believes the potential acquisition and criminal and terrorist use of
rocket motors containing more than 62.5 grams of propellant poses an
unacceptable risk. Accordingly, the Department believes this rule is
essential to protect the public and safeguard homeland security.
7. The Proposed Amendment Violates the Federal Explosives Law
Section 1101 of the Organized Crime Control Act of 1970 (Pub. L.
91-452, Title XI, October 15, 1970) states, in part:
It is not the purpose of this title to place any undue or
unnecessary Federal restrictions or burdens on law-abiding citizens
with respect to the acquisition, possession, storage, or use of
explosive materials for industrial, mining, agricultural, or other
lawful purposes, or to provide for the imposition by Federal
regulations of any procedures or requirements other than those
reasonably necessary to implement and effectuate the provisions of
this title.
Three commenters argued that the proposed amendment relating to
model rocket motors violates the Federal explosives law because it
imposes undue and unnecessary restrictions and burdens on the public.
Following are excerpts from some of the comments:
[The proposed rule] is in fact in direct violation of this
Section* * * [it] appears to be designed specifically to impose
undue and unnecessary Federal restrictions and burdens on law-
abiding citizens who have been enjoying an exciting yet safe and
educational hobby. When one considers that those citizens * * * have
over the last forty years the most extraordinary safety record that
might be imagined, and have not only presented no danger to the
public, but in fact have provided significant public benefit both
economic and educational, it is clear that any attempt to impose
additional restraints and regulations is not in the best interests
of the public. (Comment No. 834)
BATFE regulation of hobby rocketry violates the direction of
Congress by placing unnecessary federal restrictions and burdens on
law-abiding citizens with respect to the acquisition, possession,
storage, and use of APCP and other materials necessary to pursue the
lawful hobby of rocketry. Most hobbyists will be unable to meet the
storage requirements for a LEUP [low explosives user permit], and
will be unable to acquire motors containing greater than 62.5 grams
of propellant. (Comment No. 934)
[T]here is no way to argue that the proposed changes regarding
rocket motors would be in keeping with the spirit of section SEC.
1101 of the law. Requiring an LEUP to purchase and store hobby
rocket motors will end the sport for many who currently enjoy flying
rockets. Especially with the requirements imposed not only by the
application, but the need to have a storage magazine for a non-
explosive material is burdensome at best, and prohibitory for the
majority fliers. The cost of the permit and magazine represent a
substantial outlay and will certainly cause many to abandon the
hobby. (Comment No. 1521)
Department Response
These comments appear to be based on the misconception that the
final rule would ``impose'' the requirements of 27 CFR part 555 on
rocket motors containing more than 62.5 grams of propellant. The
Department's view is that this characterization of the rule is
incorrect. The Department's position is that APCP is properly
classified as an explosive and, in the absence of an exemption, the
requirements of 27 CFR part 555 apply to all rocket motors, regardless
of the quantity of propellant. As stated above, the final rule formally
implements ATF's long-standing policy of exempting from part 555 rocket
motors containing 62.5 grams or less of propellant. If this exemption
did not exist, the consequences outlined in the comments, if accurate,
would be more pronounced because there would be no exemption whatsoever
for hobby rocket motors of any size.
The primary purpose of the Federal explosives law, as expressed by
Congress, is to protect interstate and foreign commerce and to reduce
the hazards associated with the misuse of explosive materials.
Therefore, this goal is the basis for all regulatory action undertaken
by the Department. The Department regulates only to the extent that it
is ``reasonably necessary to implement and effectuate the provisions of
this title.'' The Department has considered the submitted comments.
However, it does not believe that the proposed amendment exceeds the
scope of the law.
As previously discussed, APCP does not generally function by
detonation, but by deflagration. Therefore it has been classified as a
low explosive pursuant to ATF's implementing regulations. The
Department must strike a balance between its obligation to regulate
APCP and Congress's intent to avoid unnecessarily burdening industry,
mining, agriculture or other lawful users of explosives. The proposed
amendment comports with the congressional intent in that the exemption
allows for the unregulated, lawful use of an explosive in an amount
that is unlikely to endanger interstate or foreign commerce
[[Page 46089]]
or the public at large. Therefore, the limitation within the exemption
is reasonable.
The legislative history for Title XI references items that are not
intended to be regulated by the Federal explosives laws and provides
guidance to the agency with regard to how to implement exemptions.
Specifically, the Judiciary Committee of the United States House of
Representatives stated in its report that ``the term `explosives' does
not include fertilizer and gasoline, nor is the definition intended to
include propellant actuated devices or propellant actuated industrial
tools used for their intended purposes.'' (See H.R. Rep. No. 91-1549,
at 35 (1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4041.) Therefore, it
appears that Congress considered the impact of the law on industry and
other lawful users, yet did not limit ATF's mandate to regulate APCP,
even when used by law-abiding hobbyists. Since 1970, Title XI has been
amended a number of times. However, Congress has never added to the
laws any additional exemptions related to hobbyists or APCP. (See Pub.
L. 93-639, section 101, 88 Stat. 2217 (1975); Pub. L. 104-132, Title
VI, section 605, 100 Stat. 1289 (1996); Pub. L. 107-296, Title XI,
Subtitle B, section 1112(e)(3), Subtitle C, section 1126, 116 Stat.
2276, 2285 (2002).) The Department notes that very few explosives are
given any sort of exemption from the Federal explosives controls and
that, in exempting motors containing 62.5 grams or less of propellant,
ATF is, indeed, following Congress's mandate to balance the rights of
law-abiding citizens to have access to explosives with the important
safety and security concerns at issue.
Most recently, Congress addressed the ongoing serious threat posed
by terrorists who seek to attack America on its own soil. In enacting
the Safe Explosives Act, Congress took into consideration the fact that
terrorists have used explosives to attack the World Trade Center in
1993, destroyed the Murrah Federal Building in Oklahoma City in 1995,
attempted to detonate a ``shoe bomb'' on an aircraft in 2002, and
planned to detonate a ``dirty bomb''--a mixture of common explosives
and radioactive materials, in a United States metropolitan area in
2002. (House Report No. 107-658; 107th Cong. 2d Session Sept. 17,
2002). Congress took steps to prevent further attacks against Americans
and enacted legislation that requires all persons acquiring explosives
to obtain a permit from ATF.
The legislative history for the Safe Explosives Act indicates
Congress's concern with terrorist use of explosives and indicates that
the Department should implement the provisions of the Federal
explosives laws with homeland security as a paramount concern. The
regulatory amendment embodied by this final rule, establishing a
limited exemption for rocket motors containing 62.5 grams or less of
explosive material, is consistent with the purposes of Title XI and the
Safe Explosives Act. It balances the needs of legitimate law-abiding
rocketry enthusiasts against the need to prevent acts of terrorism
using explosives and it represents one of the very few instances in
which an exemption from the Federal explosives controls has been deemed
appropriate, either by Congress, the Department of the Treasury, or the
Department of Justice.
8. The Proposed Regulation Fails To Recognize the Economic Effects on
Small Businesses as Required Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires an agency
to give particular attention to the potential impact of regulation on
small businesses and other small entities. Approximately 200 commenters
contended that the proposed rule, if adopted, would result in reduced
participation by sport rocket hobbyists which, in turn, would have a
negative effect on small businesses.
AeroTech, Inc. is a manufacturer and supplier of composite
propellant rocket motors, as well as a supplier of mid-power rocket
kits and related products. In its comment (Comment No. 799), the
manufacturer contended that the proposed rule would have a significant
impact on small businesses--
AeroTech is a small business with 10 employees, and derives
approximately 50-60% of its revenue from rocket motors that would be
regulated under the proposed rule. It is expected that revenues from
the sale of these motors will be drastically reduced as a result of
hobbyists unwilling or unable to comply with the licensing and/or
storage requirements mandated by the proposed rule. This would have
a devastating effect on the ability of AeroTech to remain in
business. AeroTech is aware of dozens of other small businesses that
will be adversely affected by the proposed rule to a greater or
lesser extent.
In its comment, NAR stated that it maintains a database of
manufacturer contact information for the sport rocketry hobby and from
that database it estimates that, at any given time, there are 200
commercial entities providing support to model rocketeers nationwide in
the form of materials, parts, motors, and launch accessories. According
to the commenter, assuming that each such manufacturer realizes annual
sales of $50,000 to the hobby, those commercial entities provide an
annual economic benefit to the U.S. economy of approximately $10
million. Based on its information, NAR stated that AeroTech estimates a
loss of 30 to 40 percent of its market as a result of the proposed
regulations. NAR went on to state that ``[a]ssuming a similar drop in
sales will occur for all other manufacturers supplying the rocketry
hobby, NAR estimates that the annual small business economic impact
resulting from the NPRM is approximately $4 million.''
Following are excerpts from other commenters who also argued that
the proposed regulation would have a significant impact on small
entities:
To the extent that new regulations are imposed, making the
purchase of such motors [motors exceeding 62.5 grams of propellant]
more difficult, the vast majority of these adults currently enjoying
the hobby will stop. The dollars spent on high-power rocketry
products will mostly stop * * * the small-business distributors and
hobby shops that rely upon these products will also quickly give up
and close, as such small businesses focus their efforts and receive
most of their sales from high-power rocketry. (Comment No. 1417)
[O]ur * * * hobby evolved into Total Impulse Rocketry. It's just
a very small business that makes recovery harnesses and harness
protectors for the high power rocketry market. If the proposed rules
concerning the 62.5 gram limit on motors go into effect, many of our
fellow rocketeers will be unable to meet the storage requirements
and will drop out of the hobby * * * Our business and many others
just like us will be severely impacted or forced to close our doors
due to the resulting decrease in sales. (Comment No. 1436)
[T]he [proposed] exemption for model rocket motors will have a
significant impact on my business. I design and manufacture model
rocket kits. The rockets made from these kits use these [greater
than 62.5 grams propellant] motors. A[t] least half my customers
will be required to obtain a license in order to continue using the
kits they have already purchased. It is unlikely that they will buy
any more kits in the future. Many of them will find the licensing
process more trouble than it is worth and * * * in some cases [will]
get out of the model rocket hobby entirely. This will lead to a
significant drop in sales. (Comment No. 1449)
There is an entire industry built up around the manufacture and
distribution of APCP motors--and also larger hobby rocket kits,
parachutes, and electronic devices to fly as payloads and flight
instrumentation. I maintain that not only the rocket motor
manufacturers would be hurt by this [proposed] regulation, but also
the distibutors [sic] and small businesses that depend on selling
the larger rocket kits and other materials that we buy to fly our
rockets* * * The people that manufacture and sell these other parts
(mostly small businesses) would also feel a huge financial impact.
(Comment No. 1613)
[[Page 46090]]
Department Response
The commenters' contention that the proposed rule, if adopted, will
have a negative effect on small businesses is based on their assumption
that there will be reduced participation in the hobby by sport rocket
hobbyists. Many commenters argued that the permitting, storage, and
other requirements for rocket motors containing more than 62.5 grams of
propellant are overly burdensome for the average sport rocket hobbyist
and, as such, many will choose to leave the sport. In that regard, NAR
stated the following:
It has been estimated that approximately 3000 individuals
currently participating in the rocket hobby will stop doing so, and
hundreds more potential new participants will decline to get
involved, as a direct result of ATFE's positions reflected in the
NPRM* * * . NAR estimates membership in its various sections across
the country will decline anywhere between 10 and 80 percent (and the
Tripoli Rocketry Association estimates a 40 percent decline in
membership).
These comments appear to be based on the misconception that the
final rule would ``impose'' the requirements of 27 CFR part 555 on
rocket motors containing more than 62.5 grams of propellant. The
Department's view is that this characterization of the rule is
incorrect. The Department's position is that APCP is properly
classified as an explosive and, in the absence of an exemption, the
requirements of 27 CFR part 555 would apply to all rocket motors,
regardless of the quantity of propellant. As stated above, the final
rule formally implements ATF's long-standing policy of exempting from
part 555 rocket motors containing not more than 62.5 grams of
propellant. If this exemption did not exist, the consequences outlined
in the comments, if accurate, would be more pronounced because there
would be no exemption whatsoever for hobby rocket motors of any size.
The Department disagrees with the commenters' assertion that the
proposed rule, if adopted, will result in significant reduction in
participation by sport rocket hobbyists which, in turn, will have a
negative effect on small businesses. By contrast, the result of the
exemption would be to lessen the burden of complying with requirements
of the Federal explosives laws and to encourage participation in sport
rocketry. Without the exemption, all rocket motors and all persons who
acquire them would be required to comply with the permit, storage, and
other requirements of Federal law. Likewise, without the exemption, all
retailers, hobby, game and toy stores that distribute and store rocket
motors containing not more than 62.5 grams of explosive would be
obligated to obtain Federal explosives licenses and comply with all
regulatory, recordkeeping and inspection requirements. As stated
previously, APCP has been regulated under the Federal explosives
controls since 1971. Thus, requirements to comply with the law when
acquiring, transporting, selling or storing non-exempt rocket motors is
nothing new, and many persons who have acquired non-exempt motors
without obtaining a Federal permit and who fail to store them properly
have committed a crime. Moreover, a number of commenters indicates they
have acquired large rocket motors and transported them across State
lines for rocket shoots without obtaining a Federal license or permit.
Such transportation violates Federal law now and violated the law prior
to enactment of the Safe Explosives Act. Again, the exemption embodied
by this final rule is intended to provide some relief to rocketry
enthusiasts while taking into account the clear mandate of Congress
that explosives be effectively regulated.
Moreover, the burden of complying with the law and regulations for
non-exempt rocket motors can be minimized through participation in
rocketry clubs. Comments indicate that a significant number of rocket
hobbyists belong to such organizations. ATF has recently advised rocket
clubs that, if they hold a valid Federal explosives user permit, they
may sponsor rocket launches and provide rocket motors to club members.
A club ``member,'' as defined under the club's bylaws establishing club
membership, may participate in the rocket launch without having an
individual permit so long as the member is not prohibited under Federal
law from possessing explosives. With respect to storage, ATF has
advised rocketry clubs that any unused rocket motors must be stored in
either a club magazine or that the club must arrange for storage with
another licensee or permittee (contingency storage).
Under this procedure, sport rocketry hobbyists may continue to
participate in rocket launches using rocket motors containing more than
62.5 grams of explosive propellant without having to obtain an
individual Federal permit or explosives magazine to store their rocket
motors. All members of the club can share in the cost of a single
permit and storage magazine, reducing the cost to an insignificant
amount. Additionally, this final rule will allow retailers such as toy
and game stores and hobby shops to continue to sell smaller rocket
motors without obtaining a license, maintaining records applicable to
distribution of explosives, or being subject to ATF inspection.
Accordingly, the Department does not anticipate that the rule will
cause a significant reduction in participation by rocket hobbyists or
have a significant impact on small businesses.
9. The Proposed Regulation Is a ``Significant Regulatory Action'' Under
Executive Order 12866
Under Executive Order 12866, a Federal agency must determine
whether a regulatory action, which includes notices of proposed
rulemaking, is ``significant'' and therefore subject to review by the
Office of Management and Budget and the analytical requirements of the
executive order. The executive order defines ``significant regulatory
action,'' in part, as one that is likely to result in a rule that may
have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local or tribal governments or communities.
In Notice No. 968, ATF stated that the proposed rule was not a
significant regulatory action and, therefore, a Regulatory Assessment
was not required.
Thirty commenters did not agree with ATF's assessment and contended
that the proposed regulation, with respect to hobby rocket motors, is a
significant regulatory action. NAR stated that the proposed exemption
would ``significantly reduce the market for rocket motors containing
APCP because rocketeers will be unwilling or unable to purchase such
items.'' According to the commenter, it has been estimated that
approximately 3,000 individuals currently participating in the sport
rocketry hobby will stop doing so and many more potential new
participants will decline to participate in the hobby. The commenter
went on to state the following:
NAR estimates membership in its various sections across the
country will decline anywhere between 10 and 80 percent (and the
Tripoli Rocketry Association estimates a 40 percent decline in
membership)* * * In addition, manufacturers, distributors and
retailers of rocket motors containing APCP will not only suffer the
financial impact associated with less purchases by rocketeers, but
in addition they will be unable or unwilling to economically comply
with ATFE's regulations and remain in business.
In its comment, NAR provided information relating to local
economics, small businesses, and magazine cost requirements. Based on
that information, the commenter estimated
[[Page 46091]]
that the total impact of the proposed regulation on those participating
in the sport rocketry hobby, as well as those benefiting from the
hobbyists' participation, exceeds $23 million.
Other commenters also argued that the proposed regulation is a
significant regulatory action:
[T]he NPRM will adversely impact the entire hobby rocketry
industry because of network effects. By diminishing the high power
sector of the hobby, overall cash flows to vendors of mid-power and
low-power rockets will be reduced. This will cause a contraction in
the entire industry as high power vendors go out of business and can
no longer serve other sectors of the hobby. Mid-power and low-power
flyers will thus have less choice and product availability. (Comment
No. 882)
Sport rocketry is unique in that your proposed rules will apply
not only to the vendors that provide motor reloads and supplies to
the hobby but also to most of their customers. A majority of the
members of both national sanctioning bodies of sport rocketry * * *
fly motors containing APCP grains over 62.5g. More than half of all
motors currently available will become regulated* * * All of the
companies that manufacture and sell APCP motors and supplies * * *
are relatively small businesses and any further impact will put most
of these companies out of business. (Comment No. 1321)
I normally fly rockets in a three state area * * * so I would
need to purchase the more expensive LEUP at $100. In addition[,] the
meets where I fly my rockets do not typically have vendors on the
site, so I would have to purchase a type 4 magazine ($200) so that I
could purchase them ahead of time and to store them. I would not be
able to store the magazine in my garage since it is less the [sic]
75 feet from the living quarters of my neighbor, so I would have to
build a storage shed at a cost of at least $1500. This would bring
my total cost to comply with the new proposed regulation to $1800. I
typically only fly two or three high power models per year at a cost
of less than $100. The effect of the new [proposed] regulation would
force me to spend 18 times what I normally spend on these motors.
(Comment No. 1424)
Based on the costs to comply with proposed storage requirements,
user permits and local launch impacts, I estimated the total impact
of the [proposed] regulation on the rocketry community would exceed
$20 million annually. (Comment No. 1527)
The impact on individual hobbyist[s] and to the hobby industry
could be devastating economically, if the proposed rule's go into
effect* * * it would force many of the current participants to drop
out due to the excessive requirements forced on the hobby. Many of
the small businesses would not be able to stay in business also due
to the added requirements. Hundreds of hobbyist[s] and their
family's travel * * * each year * * * to regional or national
launches. National launches bring thousands of dollars into the
local economy around the launch. This [proposed] regulatory action
will have significant economic impact on both sport rocketry
enthusiasts and APCP motor manufacturers and vendors. (Comment No.
1653)
Department Response
As stated previously, the result of this final rule will be to
mitigate the impact of the Federal explosives law on sport rocketry. A
strict reading of the statute without the establishment of a regulatory
exemption would result in a far greater economic impact on rocketry
hobbyists. Moreover, the Department maintains that the proposed rule
with respect to model rocket motors is not a significant regulatory
action and will not have a significant economic impact. The commenters'
assertion that the proposal will have a significant impact on the
economy is based on their assumption that there will be a reduction in
participation by rocketry hobbyists.
NAR estimated that the total impact of the proposed regulation on
those participating in the sport rocketry hobby, as well as those
benefiting from the hobbyists' participation, exceeds $23 million. The
Department believes that this figure is excessive and unrealistic.
NAR's estimate is based, in part, on its contention that 3000
individuals currently participating in the rocketry hobby will stop
doing so. However, as explained in the preceding section, the
Department believes that most rocket hobbyists will continue to
participate in the sport, whether through rocketry clubs or otherwise.
Additionally in this regard, it bears noting that this final rule
merely formalizes ATF's existing (and long-standing) policy of
exempting rocket motors containing no more than 62.5 grams of explosive
material.
NAR's estimate is also based on its contention that ``a minimum of
6,000 rocketeers will be forced to obtain a permit from the ATFE
[approximately $200] and to purchase a storage magazine for his/her
rocket motors [approximately $300] in order to comply with the proposed
regulations contained in the NPRM.'' The Department also finds this
figure to be excessive. As explained earlier, the comments indicate
that many rocketeers belong to a rocket club. ATF has advised rocket
clubs that if they obtain a Federal permit and provide storage for the
rocket motors, the individual club members would not have to obtain a
permit or purchase an explosives magazine to store their rocket motors.
Accordingly, the Department believes that only a small percentage of
rocketeers will be purchasing explosives magazines, relying instead on
shared storage facilities of rocketry clubs.
NAR also argued that the 6,000 rocketeers would need to purchase
two \1/2\-inch diameter locks for their explosives storage magazine, at
a cost of $2,500. Based on NAR's estimate, the total cost of the locks
for 6,000 magazines would be $15,000,000. However, \1/2\-inch diameter
locks are not required under the current regulations. The cost of a \3/
8\-inch diameter lock, which is the type of lock currently required by
regulation, is approximately $28.
NAR further estimated that the total impact of the proposed
regulation on local economics and small businesses to be approximately
$8.8 million annually. Again, this figure is based on NAR's contention
that the proposed rule, if adopted, will result in a significant
reduction in participation by model rocket hobbyists. As explained
above, the Department believes that adoption of the proposed rule will
result in only a small number of rocket hobbyists leaving the sport.
B. Commenters' Concerns Regarding ATF's Proposal Relating to Model
Rocket Motors and Model Rocket Propellant
1. Adoption of the Proposed Rule Will Result in Overly Burdensome
Federal Requirements for Sport Rocketry Hobbyists
If the proposed amendment is adopted, model rocket motors
containing more than 62.5 grams of propellant and reload kits that can
be used in the assembly of a rocket motor containing more than 62.5
grams of propellant will be subject to the permitting, storage, and
other requirements of Federal explosives law and the regulations in
part 555. Approximately 150 commenters argued that the compliance
requirements for rocket motors containing more than 62.5 grams of
propellant are overly burdensome for the average sport rocket hobbyist
and, as such, many will choose to leave the sport. The following is a
representative sample of the commenters' views:
The cost of a storage magazine is very prohibitive to the
average rocket hobbyist and is way out of proportion to the cost of
the motor being stored. For example, an H128W motor from Aerotech
Inc. * * * has a retail cost of $12.50. * * * this motor would be
regulated and the hobbyist must store it in a type 4 low explosives
magazine. The least expensive type 4 magazine that I have been able
to find is one offered * * * for $194.95 plus a shipping cost of
$25.00. This is a total cost of at least $219.95 to store a $12.50
motor. (Comment No. 69)
Subjecting rocket motors containing more than 62.5 grams of
propellant to BATFE
[[Page 46092]]
explosives regulations would be onerous and burdensome. In addition
to the cost of the permit, fingerprinting and background checks,
there is also the problem of storage. BATFE would require APCP and
other hobby rocketry materials to be stored in an explosives
magazine far from any building or road. For most people this is a
physical impossibility * * * (Comment No. 331)
The BATF requirements for permitting & storage cannot be met by
a majority of these hobbyists, since they do not have access to a
BATF-approved magazine, nor can they meet the BATF requirements for
having such a magazine on their premises. (Comment No. 812)
Most model rocket hobbyists are not going to be willing to go
through the process of obtaining a Low Explosives User Permit (LEUP)
to be able to continue to use the APCP rocket motors * * * The
paperwork effort and intrusive nature of the permitting process
(background check including photographs, fingerprints, and
interviews) and recordkeeping requirements * * * will cause most
amateurs to drop out of the hobby. (Comment No. 954)
Under the new proposed regulations * * * model rocketry
hobbyists, educators, and students will have to obtain an BATFE
permit to buy a consumer rocket motor. Even the simplest permit
under the law will require the hobbyist to be subjected to a
background check by the BATFE, which includes fingerprints,
photographs and interviews. The law also requires permit holders to
keep records that can be inspected by BATFE agents. Since these
records will most likely be kept in the permit holder's home, it
will open their home to a visit by the BATFE. The response by many
Americans to these new restrictions will be to drop out of rocketry
* * * (Comment No. 1544)
A significant, and debilitating for the hobby, side effect of
the proposed rule * * * is that storage will be required for all but
very small APCP motors. Storage requirements will cause this hobby
to wither over the next few years as older rocketeers leave the
hobby and new enthusiasts find the regulatory hurdles far too steep
to clear. Many, likely most, hobbyists will not be able to secure
storage for their motors * * * (Comment No. 1614)
Department Response
These comments appear to be based on the misconception that the
final rule would ``impose'' the requirements of 27 CFR part 555 on
rocket motors containing more than 62.5 grams of propellant. The
Department's view is that this characterization of the rule is
incorrect. The Department's position is that APCP is properly
classified as an explosive and, in the absence of an exemption, the
requirements of 27 CFR part 555 would apply to all rocket motors,
regardless of the quantity of propellant. As stated above, the final
rule formally implements ATF's long-standing policy of exempting from
part 555 rocket motors containing 62.5 grams or less of propellant. If
this exemption did not exist, the consequences outlined in the
comments, if accurate, would be more pronounced because there would be
no relief at all for hobby rockets.
The Department recognizes that some individuals wishing to obtain a
Federal explosives license or permit may not be able to do so based
solely upon the individual's inability to meet the storage requirements
stipulated under 27 CFR part 555, subpart K. The Department also
recognizes that some individuals may feel that the Federal licensing
and permitting requirements are too intrusive and may decide to
discontinue their participation in rocketry rather than obtain a
Federal explosives license or permit. The exemption recognized in this
final rule should make it easier for hobbyists to comply with the law,
and the Department notes there are a number of resources and
alternatives available to rocket motor enthusiasts which will likely
prevent any drastic drop in participation.
Off-Site Storage: The Department believes that many individuals
will continue to participate in the sport because ATF has approved, in
certain circumstances, the storage of explosive materials at a location
other than the premises address recorded on the permit or license. Off-
site storage of explosive materials is permitted so long as the
applicant, licensee, or permittee notifies ATF of the storage location.
This location must be in compliance with the tables of distances
requirements in the regulations, and the magazine must be in a location
that can be visually inspected once every seven days.
Contingency Storage: Participation may not depreciate as
dramatically as projected by rocket hobbyists because ATF will allow
industry members to have contingency storage. Upon approval from ATF,
contingency storage allows an individual to arrange to have his
explosive materials stored at the premises of another Federal
explosives licensee or permittee. Approval is generally granted to an
applicant so long as the magazine is located so it is readily
accessible to all individuals utilizing the magazine and the applicant
has written approval from the owner of the magazine.
Contingency storage could allow several hobbyists to pool their
resources to obtain a single magazine in which to store explosives and
to obtain an acceptable location to place their magazine. In addition,
some licensees and permittees have already rented out space in their
magazines to provide a location for an applicant's contingency storage.
Each of these options is a viable way in which contingency storage
might be utilized for those who cannot obtain a location to store
explosive materials.
Storage by Variance: Along with off-site and contingency storage,
hobbyists can apply for a variance from the storage regulations.
Variances may be available to applicants who are able to support a
means of storing the explosive materials in a manner substantially
equivalent to the requirements outlined in the regulations. For
instance, ATF may approve a variance for the storage of rocket motors
inside attached garages. Those individuals meeting certain conditions
outlined in the variance, such as a requirement to provide proof of
approval from State or local officials, may continue to store rocket
motors at their licensed premises.
Clubs: Membership in a ``rocketry club'' will also limit the need
for individual permits thereby reducing the regulatory obligations
imposed on individual hobbyists. ATF has informed rocketry clubs that
club members can participate in club shoots without having to obtain
their own Federal explosives license or permit. The club is the entity
responsible for obtaining the Federal explosives license or permit, for
obtaining the approved storage locations and magazines, and for
ensuring that club members do not fall into any of the prohibited
persons categories. The individual club member may then receive
explosive materials on behalf of the club while participating at
launches under the appropriate club supervision.
Students/Educators: Finally, the sport will not see a dramatic loss
in the participation of students and educators at public schools and
public universities as they will continue to be exempt from the
requirements of obtaining a Federal explosives license or permit
pursuant to 18 U.S.C. 845(a)(3) and 27 CFR 555.141(a)(3). The law and
its implementing regulation exempt the transportation, shipment,
receipt, or importation of explosive materials for delivery to any
agency of the United States or to any State or political subdivision
thereof. This exemption allows public schools or public universities to
obtain rocket motors of any size without a license or permit. These
institutions must, however, continue to comply with all storage
requirements for explosive materials and cannot knowingly allow a
prohibited person to receive or possess explosive materials.
2. The Wording of the Proposed Regulation Effectively Bans All Reload
Kits
The proposed regulation limits the exemption for motor reload kits
to those
[[Page 46093]]
``capable of reloading no more than 62.5 grams of propellant into a
reusable motor casing.'' Several commenters argued that the proposed
wording effectively bans all reload kits for reusable motor casings,
even those using 62.5 grams or less of propellant. The following
excerpts were taken from the comments:
After all, it is physically possible to take several reload
kits, each intended to be used in a motor containing 62.5 grams or
less of propellant, and to combine them into a larger motor. Thus,
by the wording of this proposed `exemption', you are effectively
banning all reload kits. (Comment No. 30)
[T]he term `capable of reloading more than 62.5 grams into a
single casing' could be interpreted to eliminate all reloadable
rocket motors. If a reloadable rocket motor was designed to use one
and only one 10 gram APCP slug, with this wording, this reload kit
could still be considered subject to regulation as the BATFE could
determine that someone could create a motor casing to accommodate 7
of this fictional slug, making a motor with 70 grams total
propellant weight. In addition, many commercial rocket motors that
are used safely at high power rocket launches are composed of
multiple 62.5 gram or less slugs. This wording would regulate all of
those motors. (Comment No. 286)
It will always be theoretically possible for someone to take the
propellant grains from several reload kits intended for use in a
motor casing containing 62.5 grams or less of propellant, and place
all of them into a larger motor casing. Because there is no
practical way to prevent this possibility, all reload kits are
`capable' of reloading more than 62.5 grams of propellant into a
reusable motor casing. (Comment No. 749)
The way the proposed change is worded, it would regulate all
reloadable motors, regardless of size, since someone could always
produce a case capable of holding say 13 chunks of 5 grams each.
Most of my 29mm reload kits are under 62.5g, but they could be
loaded into a very long 29mm casing that they are not designed to be
used in. Even a case of 13mm reload slugs could be crammed into a
54mm casing. It wouldn't work, but would be over 62.5g and thus
regulated by this rule. (Comment No. 889)
You only need to look at this hypothetically to see the problem
of this rule: If a consumer had 63 kits, each weighing only 1 gram,
they could possibly be assembled in a reload casing. So even 1 gram
of ammonium perchlorate composite propellant would not be exempt.
(Comment No. 1195)
Department Response
The Department has reviewed the comments that claim that the
regulation effectively bans all reload kits. The Department does not
believe that this concern is warranted or valid. First, the rule does
not ``ban'' rocket motors or reload kits. Rather, the rule allows
persons to acquire without regulation rocket motors containing 62.5
grams or less of propellant and reload kits designed to enable the
assembly of motors containing 62.5 grams or less of propellant. Rocket
motors and reload kits exceeding these parameters may still be lawfully
acquired by obtaining a Federal permit and complying with the storage,
recordkeeping, and other provisions of the law and regulations. Thus,
using the term ``ban'' to refer to this final rule is inappropriate and
misleading.
Presently, ATF is aware of only a small number of commercially
available reload kits that contain propellant modules designed to be
combined to exceed the 62.5-gram total propellant weight within a
single sport rocket casing. In these kits, the individual propellant
modules each contain 62.5 grams of propellant or less; however, the
kits are subject to the permitting/licensing and storage requirements
of the Federal explosives law because they are designed to be stacked
together within a re-usable casing designed to hold more than 62.5
grams of propellant. There are other reload kits on the market that are
designed solely to be used in the assembly of rocket motors that
contain no more than 62.5 grams of propellant per assembled motor.
These reload kits will remain exempt under this final rule.
Many of the scenarios offered by commenters refer to hypothetical
possibilities as opposed to actual products used or available to rocket
hobbyists. For instance, ATF is unaware of any rocket casing that
accepts seven 10-gram slugs of APCP, resulting in 70 grams of total
propellant weight. However, if such a kit were to be designed it would
be subject to regulation.
ATF recognizes that reload kits can provide rocketry enthusiasts
with a cost-effective means to enjoy their hobby. Accordingly, ATF has
included within the scope of the 62.5-gram exemption reload kits that
are designed to enable the assembly of motors containing 62.5-grams or
less explosive material. Hobbyists and manufacturers of rocket motors
should, however, be aware that this final rule does not provide a
``loophole'' affording exempt treatment for reload kits (e.g., the
AeroTech ``Easy Access'' kit) that, although containing propellant
modules no larger than 62.5 grams, are designed to allow more than one
of these propellant modules to be combined in a fully assembled motor
containing a total of more than 62.5 grams of propellant. Logic
dictates that if single-use motors containing more than 62.5 grams are
not exempt under this final rule, reload kits designed to enable the
assembly of such motors must also be subject to regulation.
3. The Proposed Regulation Limits the Scope of the Exemption to
``Importation and Distribution''
The wording of the proposed regulation limits the exemption to
``importation and distribution.'' Several commenters contended that the
proposal is too restrictive and that rocket motors containing 62.5
grams or less of propellant should be exempt from all of the
requirements in part 555. One commenter, NAR, pointed out that the
current language in 27 CFR 555.141(a)(7) includes importation,
distribution, and storage. The commenter went on to state the
following:
[T]he NPRM has dropped the reference to `storage' from the
introductory text for exemptions in Section 55.141(a)(7). To the
degree that the deletion was purposeful, ATFE has severely limited
its exemptions by requiring compliance with storage requirements
even where compliance with importation and distribution requirements
is not necessary. Clearly such a result represents an unnecessary
and undue burden on many retail establishments distributing and
selling these items. To the degree the deletion was inadvertent, the
reference to `storage' should be re-inserted when the final rule is
issued.
Other commenters raised similar concerns:
The exempted materials should be considered non-explosive for
all legal purposes, not just importation and distribution * * *
rocket hobbyists need to be free to buy, sell, ship, store,
transport, and use rocket propellants, and the manufacturers and
dealers need to be free to make, buy, ship, store, transport and
sell them. (Comment No. 30)
The current language of 27 CFR 555.141(a)(7) explicitly exempts
storage as well. Requiring storage for these items [rocket motors
containing up to 62.5 grams of propellant] will impose a significant
burden on the entire supply chain and make thousands (millions?) who
currently possess these items criminals. (Comment No. 1330)
Department Response
The Department has reviewed the comments that question the
exclusion of storage from the exemption language. It was not the
intention of the proposed rule to impose storage requirements on hobby
rocket motors containing 62.5 grams or less of propellant.
Historically, ATF's policy has been to exempt the smaller rocket motors
from all regulations applicable to other explosives. This final rule
was intended to clarify that long-standing policy. Therefore, in this
final rule, the language has been revised to clarify that the
designated rocket motors are exempt from all the requirements of 27 CFR
part 555.
[[Page 46094]]
4. Increased Regulation of Model Rocket Engines Will Limit the
Availability and Drive Up the Already High Price of Rocket Motors
Several commenters contended that many hobby rocketry enthusiasts
will leave the hobby if the proposed regulation is adopted, resulting
in limited availability of rocket motors and higher prices for them.
Excerpts from some of the comments follow:
As a result of members leaving the hobby, these [proposed]
regulations will have a very significant negative economic impact on
the companies that manufacture, distribute, and sell hobby rocket
motors. Prices will rise for these motors since demand and volume
will be significantly reduced. Higher prices will hurt the average
hobbyist * * * (Comment No. 69)
By imposing limits that only allow less than 62.5 grams of
`total' propellant, rocketeers, who are not currently permitted,
will be unable to purchase and fly the vast majority of mid to high
power rockets * * * This will in turn lower the demand for these
types of motors and will in turn drive the prices up for those of us
that have the ability to purchase, store and use * * * those
manufactures [sic] and businesses that provide these products * * *
will have to lower their inventory levels, manufacturing component
commitments, and raise their prices overall just to stay in business
at a reduced revenue level. (Comment No. 896)
A majority of hobbyists can not * * * and many will not * * *
qualify for a LEUP; those hobbyists have stopped purchasing rocket
motors * * * Almost overnight the few small dealers and
manufacturers have seen their small profit margins disappear. As
demand drops, prices will rise to the point where the typical
hobbyist will not be able to afford it. (Comment No. 1536)
A reduction * * * in participation would also negatively impact
those who keep going with the hobby. As with any other consumer
product, as rocket motor production increases, prices decrease.
Unfortunately, the opposite is also true and the remaining consumers
of APCP rocket motors would be forced to bear the added cost. This
will also result in decreased participation. (Comment No. 1607)
Department Response
The Department has considered the commenters' concerns about
potentially inflated costs associated with high power rocket motors.
These comments appear to be based on the misconception that the final
rule would ``impose'' the requirements of 27 CFR part 555 on rocket
motors containing more than 62.5 grams of propellant. The Department's
view is that this characterization of the rule is incorrect. The
Department's position is that APCP is properly classified as an
explosive and, in the absence of an exemption, the requirements of 27
CFR part 555 apply to all rocket motors, regardless of the quantity of
propellant. As stated above, the final rule formally implements ATF's
long-standing policy of exemption from part 555 rocket motors
containing not more than 62.5 grams of propellant. If this exemption
did not exist, the consequences outlined in the comments, if accurate,
would be more pronounced because there would be no relief for hobby
rockets at all.
Moreover, the Department does not believe the concerns outweigh the
safety and homeland security threats that would be posed by the
unregulated sale of large rocket motors. Additionally, the concern is
not supported by facts.
Federal controls applicable to rocket motors containing more than
62.5 grams of propellant and on reload kits enabling persons to
construct motors containing more than 62.5-grams of propellant are
reasonable in scope. The controls were applicable to motors containing
more than 62.5 grams of propellant prior to the proposed rule.
Therefore, any perceived shift in market prices associated with this
proposal is simply a result of hobbyists coming into compliance with
ATF's long-standing policy and with the expanded permitting
requirements imposed by Congress under the Safe Explosives Act.
Likewise, ATF has not been provided with any information to support the
contention that affected hobbyists are quitting their hobby due to the
cost of compliance.
In fact, the Department has identified a number of resources and
alternatives that will reduce the regulatory obligations of individual
hobbyists. These alternatives should limit any projected decrease in
the number of hobby participants thereby lessening the overall impact
on the commercial market.
5. Subjecting Rocket Motors Containing More Than 62.5 Grams of
Propellant to Permitting and Storage Requirements Would Be Onerous and
Burdensome
Approximately 80 commenters argued that subjecting rocket motors
containing more than 62.5 grams of propellant to the permitting and
storage requirements of Federal explosives and regulations would be
unduly burdensome. The commenters expressed concern regarding the costs
associated with obtaining a Federal permit, e.g., fingerprinting and
background check, and the problems involved in providing proper storage
for the rocket motors. The following excerpts represent the views of
most commenters:
The regulations you proposed in this NPRM will eliminate my
ability to participate in high power hobby rocketry. All of the
rocket motors I have used in the past few years and those I prefer
to use would be regulated under this proposed regulation. In order
to continue to use them, I would be required to obtain a * * * low
explosives user permit * * * Since I currently live in a multiple
family dwelling, I would not be eligible to have a magazine for
motor storage, a requirement to obtain a low explosives user permit,
and thus would not be able to fly motors above your proposed 62.5
gram limit. (Comment No. 286)
[M]ost of us do not have the required storage facilities for our
motors. Current storage requirements are an outbuilding 100 feet
from any other building. And if we can't store our motors * * * I
don't know how we are going to fly. (Comment No. 732)
All High Power flyers will have to obtain a permit to continue
their sport under the proposed regulations. The lower cost
intrastate [limited] permit is useless in many states where there
are no High Power Motor retailers. The full LEUP is the only viable
option under the proposed regulations and the economic impact can be
severe. The increase in the permit fee is a very small part of the
increase. The requirement for storage is where virtually all of the
expenses are. (Comment No. 895)
Storage is the most burdensome part of the regulatory
requirements for individuals to meet. Many people who engage in
model rocketry live in homes which are not able to meet the storage
requirements (such as Townhouse[s], Apartments and areas of cities
where homes are located close together). (Comment No. 969)
Subjecting rocket motors containing more than 62.5 grams of
propellant to BATFE explosives regulations would be onerous and
burdensome. In addition to the cost of the permit, fingerprinting
and background checks, there is also the problem of storage. BATFE
would require APCP and other hobby rocketry materials to be stored
in an explosives magazine far from any building or road. For most
people this is a physical impossibility * * * `Contingent storage'
via a second party is not a solution either, as it is often
unavailable. (Comment No. 1034)
Department Response
The Department objects to characterization of this rule as
``subjecting'' rocketry hobbyists to requirements of the law. As stated
previously, this rule merely clarifies ATF's long-standing policy
exempting certain rocket motors containing 62.5 grams or less of
propellant from the requirements of part 555. Without this exemption,
rocketry hobbyists would be required to obtain a Federal permit and
abide by all the requirements of the law and regulations for all
rockets and reload kits.
In addition, the Department contends that the time and costs of
obtaining a ``user permit'' (UP) or a ``limited permit'' for users of
rocket motors or reload kits containing more than 62.5 grams of APCP,
as well as the cost of obtaining an approved storage
[[Page 46095]]
magazine, do not impose an excessive burden on individuals.
In amending regulations to implement provisions of the Safe
Explosives Act (Federal Register, March 20, 2003, 68 FR 13777), ATF
estimated the time and cost for 20,000 unlicensed individuals to obtain
a ``limited permit.'' ATF estimated that the total amount of time it
would take an individual to complete a Federal explosives license or
permit application is approximately 1.5 hours. The time spent on
inspecting the qualification documents, business premises, and storage
magazines is approximately 2 hours.
ATF also estimated the total cost imposed on an individual applying
for a ``user permit'' or a ``limited permit.'' First, there would be
the cost of each permit, which is $25 per year for a ``limited permit''
and $100 for 3 years for a LEUP. The cost of photographs for an
individual was estimated at $1.50; fingerprints for individuals were
estimated at $10.00. ATF estimated the cost for the time it would take
to complete the application as $19.50, based upon a mean hourly wage of
$13. Finally, ATF estimated the total cost for the time spent by the
individual during an ATF application inspection at $34, based upon a
mean hourly wage of $17.
Based on these figures, ATF was able to conclude that the total
cost and amount of time spent on applying for a Federal explosives
permit would be an estimated $90.00 to $164.50 and 3.5 hours per
applicant. The Department contends that this amount of time and cost is
not disproportionately burdensome, especially when considering the
benefits to public safety and security.
The Department does recognize that the cost of a storage magazine
is significant when compared to the cost of a single rocket motor.
However, most rocket motor enthusiasts store more than a single rocket
motor in a magazine. In addition, there are alternative means of
storing rocket motors. Contrary to the views expressed by some
commenters, contingency storage is a viable option for hobbyists.
Contingency storage would allow several hobbyists to pool their
resources together to obtain a single magazine to store explosives and
to obtain an acceptable location to place their magazine. It also
allows individuals who might otherwise be prohibited from storing at
their licensed location, possibly due to State or local requirements,
to store in a magazine at a location provided by another licensee or
permittee.
Furthermore, rocketry enthusiasts may join or form rocketry clubs.
These clubs are responsible for obtaining all appropriate licenses or
permits, as well as storage. The club members may incur the cost of
membership dues, but as members they may participate in their hobby
without having to individually comply with storage, licensing, or
permitting requirements. Sharing the cost of compliance will
dramatically reduce the cost and burden to any individual club member.
6. The Proposed Regulation Places an Undue Burden on Adult Sport
Rocketry Hobbyists
Approximately 110 commenters expressed a concern that the proposed
regulation places an undue burden on adult rocketry hobbyists because
most adults in the hobby use motors that contain more than 62.5 grams
of propellant. Following are excerpts from some of the comments:
The point I am trying to make here is it [is] the adults that
drive the hobby. Approximately 56% of all consumer hobby rocket
motors sold are above the 62.5 gram propellant weight exemption
proposed by the ATFE. If this rule is enforced most adults
participating in the hobby will drop out. Few parents will want to
be subjected to paying for an explosive permit fee, background
checks, fingerprinting, and possible ATF inspections. (Comment No.
769)
The proposed 62.5-gram propellant weight limit in the NPRM will
have detrimental effects on the hobby. It will subject about 5000
high power rocket flyer hobbyists in the United States to a series
of regulations that will stifle the growth and adult participation
in this hobby. Many current adult flyers that were involved with
this hobby as middle and high school students have returned to this
hobby because of the high power aspects. (Comment No. 801)
[M]ore than 90 percent of the rockets that I currently fly
contain between 125 and 1000 grams of APCP * * * Most of the
individuals involved in high-power rocketry devote the greater part
of their efforts to flying rockets that use more than 62.5 grams of
propellant. There are currently approximately 5,000 such individuals
certified by NAR and/or TRA who routinely fly rockets that fall into
this category. (Comment No. 924)
While most minors fly these types of motors [under 62.5 grams
propellant weight] the majority of adult hobbyists do not * * * The
62.5g rule was made by CSPC to protect minors from injury. I agree
that this threshold is a good limit for minor[s], but for minors
only. (Comment No. 999)
Although most of the rocket motors burnt are not affected by
this [proposed] regulation, it is often the adults who are burning
the larger motors that coordinate the launches for the younger
generation. Placing this unnecessary burden on them will drive them
out of the hobby * * * (Comment No. 1008)
Department Response
These comments appear to be based on the misconception that the
final rule would ``impose'' the requirements of 27 CFR part 555 on
rocket motors containing more than 62.5 grams of propellant. This
characterization of the rule is incorrect. The Department's position is
that APCP is properly classified as an explosive and that, in the
absence of an exemption, the requirements of 27 CFR part 555 apply to
all rocket motors, regardless of the quantity of propellant. As stated
above, the final rule formally implements ATF's long-standing policy of
exempting from part 555 rocket motors containing not more than 62.5
grams of propellant. If this exemption did not exist, the consequences
outlined in the comments, if accurate, would be more pronounced because
there would be no relief for hobby rockets at all.
ATF as well as other Federal agencies, including the Consumer
Product Safety Commission and the Department of Transportation, have
long considered rocket motors containing no more than 62.5 grams of
propellant to be exempt from Federal regulations. For years, many
rocketry enthusiasts had also accepted this threshold, obtaining user
permits for interstate transfers of rocket motors containing more than
62.5 grams of propellant. It was only after the SEA was enacted in
2002, with its requirement for licenses or permits on intrastate
purchases, that the rocketry groups began to contend that the 62.5-gram
threshold was too burdensome.
The 62.5-gram threshold was based on the historical acceptance of
this amount of explosive material as suitable for ``toys.'' Anything
above this amount cannot reasonably be classified as a toy. As
explained previously, a result of this exemption is the mitigation of
the burden of complying with the law for rocket motors that do not pose
a significant threat to public safety and homeland security. The fact
that most of the rockets containing propellant in excess of 62.5 grams
are acquired by adults is irrelevant. The Department believes that
limiting the exemption to motors at or under the 62.5-gram threshold is
reasonable and necessary to prevent unregulated access to dangerous
quantities of explosives by criminals and terrorists-most of whom are
adults.
7. The Limited Permit Is Not Practical for Sport Rocketry Hobbyists
The Federal explosives law requires that all persons receiving
explosives on and after May 24, 2003, obtain a Federal permit. A ``user
permit'' is necessary only if the holder transports, ships, or receives
explosive materials in interstate or foreign commerce. The fee for a
user permit is $100 for a three-year period and $50 for each three-year
renewal.
[[Page 46096]]
The ``limited permit'' authorizes the holder to receive explosive
materials only within his State of residence on no more than 6 separate
occasions during the one-year period of the permit. The fee for an
original limited permit is $25 for a one-year period and $12 for each
one-year renewal.
Fifty-five commenters argued that the limited permit is not a
viable option for sport rocketry hobbyists, citing various reasons:
`Limited' permits cannot be used by most hobby racketeers [sic],
as dealers are out of state and the `Limited' permit is restricted
to resident in-state purchases. Rocketeers must get a LEUP [limited
explosives user permit] costing $100. (Comment No. 323)
The use of the ATF's new limited [permit] * * * while a step in
the right direction will not serve most users largely because most
of us currently need to order supplies out of state, as there are a
limited number of vendors nationwide and very few of us have the
luxury of an in state vendor. (Comment No. 737)
The `limited' permit proposed by ATFE is useless or of limited
usefulness for the vast majority of rocket flyers, as it only allows
a maximum of 6 purchases per year, and only allows in-state purchase
and use. Most rocket clubs hold launches at least monthly (some much
more often), and there simply are no dealers of high power rocket
motors in most states. Most high power rocket motor sales are done
through dealers in other states, either by mail order, or from
dealers who travel to launch events held in other states. Also,
rocket flyers frequently travel to launch events held in other
states. (Comment No. 749)
The limited permit has very limited usefulness because it does
not allow fliers to fly out of state, it unrealistically limits
motor purchases, and it causes problems for transportation and
storage. (Comment No. 778)
The new six purchases per year intrastate limited permit is of
little use, since most hobbyists do not have both a launch site and
dealer in their home state. (Comment No. 840)
Department Response
Commenters pointing out the limitations of the Limited Permit fail
to recognize the benefits of this rule to sport rocketry. This rule
clarifies ATF's long-standing policy exempting certain rocket motors
containing 62.5 grams or less of propellant from the requirements of
part 555. Without the exemption, all persons acquiring rocket motors
would be required to obtain a permit and comply with all other
requirements of Federal law.
An alternative to the limited permit is the user permit (UP), which
allows for unlimited interstate purchases of explosive materials for a
period of up to three years. The UP also permits those individuals
attending out-of-state launches to purchase rocket motors interstate,
or to transport explosive materials from state to state. The UP is
useful in instances in which there are no model rocket motor dealers in
the hobbyist's state, since it allows the hobbyist to purchase non-
exempt rocket motors outside of his state of residence and receive the
motors in his own state as long as the purchase complies with other
Federal, State, or local laws. The cost of the UP is only slightly
higher than the cost of a limited permit. The limited permit
application fee is $25 per year with a renewal feel of $12 per year.
The full price of a UP for 3 years is $100 for the initial three-year
permit (averaging out to $33.33 per year), with a renewal fee of $50
every three years thereafter (average of $16.67 per year).
8. Sport Rocketry Hobbyists May Not Be Able To Comply With State and
Local Requirements
Approximately 40 comments contended that under the proposed
regulation rocketry hobbyists would need to obtain permission from
State and local authorities to store rocket motors containing more than
62.5 grams of propellant. The commenters argued that obtaining such
permission is often difficult or impossible in many areas. The
following excerpts are representative of the commenters' concerns:
BATFE regulation of hobby rocket materials would also require
users to get the permission of state and local authorities for
storage of `explosives'--something that is often difficult or
impossible in many areas. In some cases, users would be required to
undergo training in the use and storage of high explosives. (Comment
No. 333)
Many, likely most, hobbyists will not be able to secure storage
for their motors because APCP has been misclassified as an explosive
and, quite naturally, most cities are reluctant to allow storage of
explosives in a residence. (Comment No. 824)
Most of the hobbyists I know cannot meet storage requirements
because they live in an apartment or condominium or live in a city
that won't allow `explosives' to be stored in a residential area,
and therefore most of them cannot get a permit. (Comment No. 1065)
Department Response
The statutory criteria for issuance of a Federal explosives license
or permit do not require applicants to comply with or certify
compliance with requirements of State or local law. The only aspect of
Federal regulation that is conditioned upon compliance with State and
local law is ATF's granting of storage variances. As stated in ATF
Ruling 2002-3, Indoor Storage of Explosives in a Residence or Dwelling
(approved August 23, 2002), ATF will approve variances to store
explosives in a residence or dwelling upon certain conditions
including, but not limited to, receipt of a certification of compliance
with State and local law, and documentation that local fire safety
officials have received a copy of the certification. ATF has issued
numerous variances permitting storage of explosive materials,
particularly APCP, in a residence or dwelling.
9. ATF's Definitions and Classifications of Explosives Are Not
Consistent With Those of Other Federal Agencies and International
Agreements
Several comments argued that there should be some consistency among
Federal agencies with respect to the definitions and classifications of
explosives. Following are some of the arguments raised by the
commenters:
[T]he definitions and classifications [of explosives] should
agree with other federal agencies and international agreements such
as the United States Department of Transportation, the Bureau of
Explosives, and UN standards. Ammonium perchlorate, and rocket
motors definitions and classifications should be regulated by * * *
[ATF] as it has been by the United States Department of
Transportation, the Bureau of Explosives, and UN standards in the
BOE-600 Hazardous Materials Regulations of the Department of
Transportation since around WW 1. (Comment No. 907)
The APCP formulations in the geometric configurations available
to the hobby rocketry community do not meet the U.S. Government
specified characteristics of low explosive materials when evaluated
by approved U.S. Government explosive testing laboratories and by
the Department of Defense (DOD). (Comment No. 1044)
The Department of Transportation has labeled APCP as a flammable
solid and has granted an emergency revision to DOT exemption DOT-E
10996 that allows the shipment of articles covered by the exemption
(certain rocket motors and reload kits normally classified as
division 1.3C explosives). (Comment No. 1052)
It seems odd to me that two different branches of government
choose to have such differing opinions on the same substance. I
believe that the definition of `toy propellant devices' use[d] by
DOT [is] more accurate when talking about hobby rocket motors.
(Comment No. 1362)
[I]t appears that BATFE is backing off from its early laudable
efforts to coordinate its regulations with those of other
governmental and quasi-governmental regulatory bodies. For example,
BATFE specifically declines to recognize or adopt even portions of
NFPA codes * * * BATFE has in the current NPRM eliminated several
helpful references to UN codes, and * * * BATFE is proposing to
adopt definitions of terms and regulatory limits that are different
from, and will inevitably interfere or even conflict with, those
used by FAA and DOT. (Comment No. 1622)
[[Page 46097]]
Department Response
The Department has considered the comments regarding differing
classifications and definitions used by other Government agencies.
However, it does not believe the proposed amendment would result in
inconsistency among Government agencies because different Federal
statutes serve different purposes.
APCP, being a deflagrating propellant, is considered an explosive
and classified under ATF regulation as a ``low explosive.''
The National Fire Protection Association (NFPA) has adopted a
definition of ``explosives'' that is the same as the statutory
definition set forth in 18 U.S.C. 841(d). ``Explosives'' as classified
in 18 U.S.C. 841(d) are ``* * * any chemical compound[,] mixture, or
device, the primary or common purpose of which is to function by
explosion; the term includes, but is not limited to, dynamite and other
high explosives, black powder, pellet powder, initiating explosives,
detonators, safety fuses, squibs, detonating cord, igniter cord, and
igniters.'' Moreover, the NFPA's classification of ``low explosives''
is consistent with that in 27 CFR 555.202(b). In its ``Fire Protection
Handbook,'' NFPA has included propellants in its listing of ``types of
explosive,'' and states that black powder, smokeless powder, and solid
rocket fuels fall into the category of ``low explosives/propellant.''
Furthermore, in its ``Code of High Power Rocketry,'' NFPA uses the same
criteria for the storage of rocket motors that mirror the requirements
of the table of distances for low explosives that are addressed in 27
CFR part 555.
DOT classifications sometimes differ from ATF because the two
agencies use different standards to make their explosives
classifications. DOT uses standards that are based primarily on the
controls for the transportation, storage, packaging, and shipping
safety. For example, when packaging will reduce the likelihood of mass
explosion, DOT will assign a ``lower'' hazard classification
(triggering less stringent transportation requirements). DOT's
standards are such that the same explosive material can be classified
differently in different circumstances, based solely upon its
packaging. ATF's classifications are static and are based upon the
material itself, not the safety of its packaging. Likewise, the United
Nations (UN) uses classifications for explosives that are designed to
ensure the harmonization of transportation of hazardous materials in
global commerce. These classifications serve to facilitate commerce
while maintaining safety standards that can be adhered to throughout
the world. This goal differs significantly from that of ATF. ATF's
classifications are designed to maximize public safety and protect
interstate and foreign commerce against interference and interruption
from the misuse of explosive materials. Therefore, although there are
some distinctions in classification among Federal agencies, they should
not be viewed as inconsistencies.
10. The Proposed Exemption Would Not Apply to Rocket Motors Containing
Multiple Segments up to 62.5 Grams of Propellant Each, but Whose Total
Combined Weight Is More Than 62.5 Grams
One commenter (Comment No. 18) expressed concern that the proposed
regulation would not exempt rocket motors containing multiple segments
having no more than 62.5 grams of propellant each, but whose total
combined weight in the motor is more than 62.5 grams. The commenter
contended that the proposed exemption should apply to all model rocket
motors whose segment weight is less than 62.5 grams, regardless of the
number of segments, citing various reasons including: The proposed rule
does not make sense--there is no difference between purchasing or
selling three separate motors each containing 62.5 grams of propellant
and one motor reload with three segments, each weighing 62.5 grams; a
62.5 gram per segment exemption is self-limiting, i.e., it becomes
impracticable from a physics point of view for rocket motors to have
more than a certain number of segments that are limited to 62.5 grams,
and; the proposed exemption will encourage clustering of smaller motors
to achieve the effect of a larger motor-this is not a good practice
because it relies on simultaneous ignition of the motors.
Department Response
All reload kits and propellant modules that can be used only in the
assembly of rocket motors that contain a total of no more than 62.5
grams of propellant per assembled motor are exempt from regulation
under this final rule. This exemption applies to single-use motors
containing 62.5 grams or less of explosive material and to reload kits
that are designed solely to create motors containing 62.5 grams or less
of APCP per assembled motor. The range and power of rockets powered by
the smaller rocket motors would not be as useful to terrorists or other
criminals in constructing weapons designed to serve as delivery systems
for explosive, chemical, or biological weapons. An individual
purchasing larger rocket motors may assemble a large rocket motor that
is capable of carrying explosive warheads or other dangerous payloads
long distances.
The Department believes that the regulation of single-use motors
containing more than 62.5 grams of propellant and reload kits and
propellant modules designed to enable the assembly of such large motors
can protect public safety by preventing the misuse of these motors.
Also, the Department has determined that this threshold affords a
reasonable balance between the need to prevent terrorists and other
criminals from acquiring explosives and the legitimate desire of
hobbyists to have access to explosives for lawful use.
11. The Proposed Exemption Does Not Appear to Include Bulk Packs of
Rocket Motors
One commenter (Comment No. 59) inquired whether the proposed
exemption applied to bulk packs of rocket motors where each motor
contains no more than 62.5 grams of propellant. The commenter stated
that he purchases bulk packs of rocket motors for his students who are
in a model rocket club. He explained that the bulk packs usually
contain 24 motors and that each individual motor contains 5.6 grams of
propellant, resulting in a total propellant weight of 134 grams (5.6 x
24). Because the total weight of the bulk pack exceeds 62.5 grams, the
commenter is concerned that bulk packs of rocket motors would not be
included in the proposed exemption.
Department Response
As stated previously, any person purchasing explosives, including
non-exempt rocket motors, for use at a public educational institution,
is exempt from the permit provisions of the Federal explosives laws.
State and local institutions would be required to store rocket motors
in compliance with the law and regulations and could not knowingly
allow prohibited persons to receive or possess explosive materials.
Persons purchasing rocket motors for a private school would not be
exempt from the permit requirements of the law. However, if the ``bulk
packs'' referred to by Comment No. 59 are non-stackable, fully-
assembled single-use motors, each of which contains no more than 62.5
grams of propellant, then such ``bulk packs'' would fall within the
exemption of the regulations, no matter how many motors are contained
in the package. Accordingly, the commenter's concerns are misplaced.
[[Page 46098]]
12. The Proposed Regulation Should Be Amended To Include Other
Explosives
As indicated, many commenters argued that the proposed regulation
is too restrictive and would have a negative effect on hobby rocketry.
Approximately 175 comments recommended specific changes to the proposed
regulation. For example, many commenters stated that the proposed
regulation should be revised to exempt from regulation model rocket
motors consisting of ammonium perchlorate composite propellant, black
powder, or non-detonable rocket propellant and designed as single-use
motors or as reload kits, as well as commercially manufactured black
powder in quantities not to exceed two pounds, safety and pyrotechnic
fuses, quick and slow matches, electric matches and igniters when used
in model rocket motors. This suggestion is similar to the proposals
contained in Senate Bill 724, introduced during the 108th Congress by
Senator Michael Enzi.
Other commenters argued that there should be an exemption for black
powder in small quantities, e.g., two pounds, for use in model rocket
ejection systems, i.e., to deploy the parachute. Two commenters
recommended that the proposed regulation be revised to exempt model
rocket motors designed as single use and reload kits consisting of
APCP, black powder, or other similar propellant purchased for hobby and
educational use by persons (and organizations) who have successfully
completed the certification processes offered by the National
Association of Rocketry, Tripoli Rocketry Association, or similar
organizations.
Two other commenters suggested that the proposed regulation should
be revised to exempt any size rocket motor or propellant reload, except
those materials which present such a hazard of accidental explosion as
to be suitable for classification as ``UN Class 1 Division 1.1 or 1.2
Hazardous materials,'' or any material used as a propulsive or
explosive charge in a rocket that qualifies as a ``destructive device''
as defined in 18 U.S.C. 44.92(a)(4)(iii). One commenter recommended
that the proposed regulation be revised to exempt model rocket motors
classified by the Department of Transportation as Class 1.4 explosives,
since United Nations hazard Class 1.4 replaces the former Class C
explosive designation. Another commenter stated that the proposed
regulation needed to be revised to clarify the phrase ``or other
similar low explosives.'' The commenter stated that it was not clear
whether the word ``similar'' means similar in chemical composition,
method of operation, or similar in ability to lift large payloads.
Department Response
The Department has considered the comments that request the
proposal be amended. Based upon the present language of Federal
explosives law, the Department does not believe that the proposed
regulation should be amended in the manner suggested by the commenters.
ATF is familiar with the commenters' proposed language that seeks
to establish additional exemptions: Model rocket motors consisting of
ammonium perchlorate composite propellant, black powder, or non-
detonable rocket propellant and designed as single-use motors or as
reload kits, as well as commercially manufactured black powder in
quantities not to exceed two pounds, safety and pyrotechnic fuses,
quick and slow matches, electric matches and igniters when used in
model rocket motors. This suggestion mirrors language in Senate Bill
724, introduced by Senator Michael Enzi in March 2003. The bill was not
enacted and will have to be reintroduced before Congress may consider
it. The Department believes that expanding the current exemption, even
for the sole purpose of hobby rocketry, will harm homeland security by
providing terrorists and other criminals with unrestricted access to
rocket motors containing large amounts of explosive material. The
Department believes this to be an unnecessary and unacceptable risk in
the current security environment. Moreover, allowing exemptions only
for fuses and igniters, as opposed to non-exempt rocket motors, would
be impossible to implement, as the same types of fuses and igniters are
used for both large and small rocket motors, as well as commercial
explosives and blasting operations. Additionally, there would be no
mechanism to ensure that only rocketry hobbyists or others with lawful
intentions will be able to avail themselves of the exemption. If the
exemption were to be expanded as suggested by the commenters, it would
become very easy for terrorists or other criminals to acquire large
rocket motors, fuses, igniters, and other materials for use in bombs
and/or for use in rockets.
The proposal to include an exemption for up to two pounds of black
powder for use in model rocket ejections is not being adopted in this
final rule. As explained previously, the exemption for black powder was
enacted by Congress and not as a regulatory exemption. The Department
declines to add this exemption to the final rule. Accordingly, the
Department recommends that commenters on this issue seek legislation.
The Department also believes it is unnecessary to revise the
language in the regulation to clarify the meaning of ``or other similar
low explosives.'' In the context of this regulation, this language
refers to rocket propellants classified as low explosives that perform
in a similar manner to those specifically listed as low explosives,
i.e., ammonium perchlorate composite propellant and black powder. To
the extent the commenter is suggesting that the Department list each
and every low explosive propellant that could conceivably be used in
rockets, the Department believes this would create an unnecessarily
lengthy regulatory exemption that would not improve its clarity. It is
not the purpose of the regulations to address each and every chemical
compound that might be used in a rocket motor and that performs in a
manner similar to those explosives listed in the regulation. The
propellants that are specifically listed are those currently used in
commercially available rocket motors. It is unnecessary to list each
and every possible low explosive that may be used now or in the future
as rocket propellants. Any person wishing a determination on a
particular rocket propellant and whether it fits within the exemption
may submit a written request for a letter ruling to ATF's Arson and
Explosives Programs Division.
The purpose of the Federal explosives controls, as expressed by
Congress, is to ``protect interstate and foreign commerce against
interference and interruption by reducing the hazard to persons and
property arising from misuse and unsafe or insecure storage of
explosive materials.'' In 2002, with the enactment of the Safe
Explosives Act, Congress also extended ATF's permitting authority to
require all persons wishing to obtain explosives to obtain permits
thereby allowing ATF to perform background checks on all applicants.
The legislation sought to ensure proper handling and storage procedures
and prevent mishandling and misuse of explosives. House Report No. 107-
658 107th Cong. 2d Sess. Sept. 17, 2002. The Department believes the
controls imposed by this final rule are reasonable and consistent with
the purposes of the 1970 Act and the congressional intent expressed
with passage of the SEA.
VII. Request for Hearings
Fifteen (15) comments requested that ATF hold public hearings on
the proposed regulations set forth in Notice
[[Page 46099]]
No. 968. Most commenters contended that holding public hearings would
provide the explosive and model rocketry industries an opportunity to
present additional information regarding the complex proposals made in
the proposed rule. They further stated that such hearings would provide
other interested parties, including model rocket hobbyists, an
opportunity to present their views ``and allow time for BATFE to
respond to our questions.''
Generally, ATF's public hearings are conducted to permit the public
to participate in rulemaking by affording interested parties the chance
to present oral presentation of data, views, or arguments. After
careful consideration, the Director has determined that the holding of
public hearings with respect to the model rocket proposal is
unnecessary and unwarranted. First, while the Director acknowledges
that the proposals made in Notice No. 968 were numerous and complex,
this final rule addresses only the proposal relating to model rocket
motors. In addition, most commenters who addressed the model rocket
motor proposal expressed similar views and raised similar objections
and concerns. As such, the Director believes that the holding of public
hearings would not produce any new information on this issue. Finally,
contrary to the views expressed by the commenters, the purpose of a
public hearing is to afford the public the opportunity to participate
in rulemaking by presenting data, opinions, etc. It is not the proper
forum for responding to interested parties' questions.
A determination as to whether hearings will be held on the
remaining proposals in Notice No. 968 will be made by the Director at a
later date.
How This Document Complies With the Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866
This rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation. The Department of Justice has
determined that this rule is a ``significant regulatory action'' under
Executive Order 12866, section 3(f), Regulatory Planning and Review,
and accordingly this rule has been reviewed by the Office of Management
and Budget. However, this rule will not have an annual effect on the
economy of $100 million, nor will it adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health, or safety, or State, local or tribal
governments or communities. Accordingly, this rule is not an
``economically significant'' rulemaking as defined by Executive Order
12866.
This final rule is deregulating in nature. It merely clarifies
ATF's long-standing position that hobby rocket motors containing 62.5
grams or less of explosive propellant are exempt from regulation. The
exemption is intended to mitigate the impact of compliance with Federal
law by allowing persons who acquire and store motors containing 62.5
grams or less of propellant to continue to enjoy their hobby on an
exempt basis. The 62.5-gram exemption threshold covers the vast
majority (more than 90 percent) of all rocket motors acquired and used
by hobbyists in the United States. Thus, persons dealing in or
acquiring motors containing no more than 62.5 grams of propellant will
not be subject to the cost of obtaining a Federal license (e.g., an
initial fee of $200 for obtaining a dealer's license for a 3-year
period; $100 renewal fee for a 3-year period) or permit (an initial fee
of $100 for obtaining a user permit for a 3-year period; $50 renewal
fee for a 3-year period). Moreover, because of the exemption for rocket
motors containing 62.5 grams or less of propellant, such persons are
not subject to the storage requirements of Federal explosives law and
regulations for their rocket motors. Without the 62.5 gram exemption, a
typical rocket motor otherwise would be required to be stored in a type
4 magazine (costing approximately $300) because of the explosives
contained in the motor. The cost for two \3/8\-inch diameter shackle
locks for the storage magazine is approximately $56.
Retailers who distribute the rockets will also avoid certain
obligations that apply to the regulated explosives industry, such as
storage standards, recordkeeping requirements, licensing and inspection
by ATF.
Rocket motors containing more than 62.5 grams of propellant will
continue to be regulated by ATF. ATF estimates that approximately 300
individuals currently participating in the rocketry hobby will stop
doing so as a result of the final rule. ATF further estimates that
approximately 60 rocketry hobbyists who use rocket motors containing
more than 62.5 grams of explosive propellant will obtain a Federal
permit and purchase a type 4 explosives magazine, while an additional
100 rocketry clubs will obtain a Federal permit and obtain an
explosives magazine. ATF estimates that the total impact of the final
rule is approximately $606,000. This figure is based on an examination
of local economics, small businesses, and magazine and permitting
requirements, as discussed below.
Local Economic Analysis
Based on historical data, NAR estimates that there are 1,000 model
rocket launches annually, typically for a period of two days per
launch, with each launch attracting 30 flyers. The commenter stated
that an additional 60 participants would attend each launch as
supporters, family members, or spectators. As a result of the proposed
regulation, ATF estimates that there would be 10 percent fewer people
attending each launch. Therefore, based on an average cost for meals
and lodging, ATF estimates that the local economic impact associated
with the proposed rule would be approximately $480,000 annually.
Small Business Analysis
In its comment, NAR stated that it maintains a database of
manufacturer contact information for the rocketry hobby. From that
database, the commenter estimates that, at any given time, there are
200 commercial entities providing support to model rocketeers
nationwide in the form of parts, materials, motors, and launch
accessories. Assuming each such manufacturer realizes annual sales of
$50,000, NAR stated that those commercial entities provide an annual
economic benefit to the U.S. economy of approximately $10 million. ATF
does not anticipate the significant drop in participation that NAR
assumes. As previously explained, the permitting and storage
requirements are not so burdensome or expensive as to drive a large
number of participants out of the hobby.
ATF estimates that the final rule will result in a drop in rocket
motor and other rocketry-related sales of .5 percent, resulting in an
annual small business economic impact of approximately $50,000.
Magazine and Permitting Cost Requirements
ATF estimates that 60 additional rocketry hobbyists and 100
rocketry clubs will obtain a permit from ATF and purchase a storage
magazine for their high-power rocket motors. ATF estimates the
permitting costs for the hobbyists and the rocketry clubs to be
approximately $19,200, including the fee and photo and fingerprinting
services. The cost of 160 type 4 explosives magazines is approximately
$48,000 and the cost of two \3/8\-inch diameter locks ($56) for the 160
magazines is $8,960. Collectively, for the 160 affected individuals/
rocketry
[[Page 46100]]
clubs, the economic cost to comply with the permitting and storage
requirements is approximately $76,160.
B. Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the Attorney General has determined that this
regulation does not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement.
C. Executive Order 12988
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. The Attorney General has reviewed this regulation and,
by approving it, certifies that this rule will not have a significant
economic impact on a substantial number of small entities. This rule
clarifies ATF's long-standing policy exempting certain model rocket
motors from the requirements of part 555. The rule provides an
exemption from the requirements of part 555 for model rocket motors
consisting of ammonium perchlorate composite propellant, black powder,
or other similar low explosives; containing no more than 62.5 grams of
total propellant weight; and designed as single-use motors or as reload
kits capable of reloading no more than 62.5 grams of propellant into a
reusable motor casing.
Without the exemption, all retailers, hobby, game and toy stores
that distribute and store rocket motors containing not more than 62.5
grams of explosive would be obligated to obtain Federal explosives
licenses and comply with all regulatory, recordkeeping and inspection
requirements.
The Department believes that the final rule will not have a
significant impact on small businesses. The 62.5-gram exemption
threshold covers the vast majority (more than 90 percent) of all rocket
motors acquired and used by hobbyists in the United States. Thus,
persons dealing in or acquiring motors containing no more than 62.5
grams of propellant will not be subject to the cost of obtaining a
Federal license (e.g., an initial fee of $200 for obtaining a dealer's
license for a 3-year period; $100 renewal fee for a 3-year period) or
permit (an initial fee of $100 for obtaining a user permit for a 3-year
period; $50 renewal fee for a 3-year period). Moreover, because of the
exemption for rocket motors containing 62.5 grams or less of
propellant, such persons are not subject to the storage requirements of
Federal explosives law and regulations for their rocket motors. Without
the 62.5 gram exemption, all rocket motors containing explosive
material would be required to be stored in a type 4 magazine (costing
approximately $300) with adequate locks (costing approximately $56).
With the exemption, only motors with more than 62.5 grams of propellant
must be stored in compliant magazines and appropriately secured.
The Department estimates that approximately 300 high-power rocketry
hobbyists currently participating in the sport will stop doing so as a
result of the final rule. Based on the comments, this figure represents
approximately three percent of the total number of rocketry hobbyists
who use rocket motors containing more than 62.5 grams of explosive
propellant.
The Department believes that the impact on small businesses as a
result of reduced participation in the rocketry hobby will be minimal.
In its comment, NAR estimated that at any given time there are 200
commercial entities providing support to model rocketeers nationwide in
the form of parts, materials, motors, and launch accessories. Assuming
each such manufacturer realizes annual sales of $50,000, NAR stated
that those commercial entities provide an annual economic benefit to
the U.S. economy of approximately $10 million. As a result of the final
rule, the Department estimates a drop in sales of .5 percent for small
manufacturers supplying the rocketry hobby. Accordingly, the Department
estimates the annual small business economic impact resulting from the
final rule to be approximately $50,000.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
F. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
G. Paperwork Reduction Act
This final rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act.
Disclosure
Copies of the notice of proposed rulemaking (NPRM), all comments
received in response to the NPRM, and this final rule will be available
for public inspection by appointment during normal business hours at:
ATF Reference Library, Room 6480, 650 Massachusetts Avenue, NW.,
Washington, DC 20226, telephone (202) 927-7890.
Drafting Information
The author of this document is James P. Ficaretta; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
List of Subjects in 27 CFR Part 555
Administrative practice and procedure, Authority delegations,
Customs duties and inspection, Explosives, Hazardous materials,
Imports, Penalties, Reporting and recordkeeping requirements, Safety,
Security measures, Seizures and forfeitures, Transportation, and
Warehouses.
Authority and Issuance
0
Accordingly, for the reasons discussed in the preamble, 27 CFR part 555
is amended as follows:
PART 555-COMMERCE IN EXPLOSIVES
0
1. The authority citation for 27 CFR part 555 continues to read as
follows:
Authority: 18 U.S.C. 847.
[[Page 46101]]
0
2. Section 555.141 is amended by adding new paragraph (a)(10) to read
as follows:
Sec. 555.141 Exemptions.
(a) * * *
(10) Model rocket motors that meet all of the following criteria--
(i) Consist of ammonium perchlorate composite propellant, black
powder, or other similar low explosives;
(ii) Contain no more than 62.5 grams of total propellant weight;
and
(iii) Are designed as single-use motors or as reload kits capable
of reloading no more than 62.5 grams of propellant into a reusable
motor casing.
* * * * *
Dated: August 7, 2006.
Paul J. McNulty,
Acting Attorney General.
[FR Doc. 06-6862 Filed 8-10-06; 8:45 am]
BILLING CODE 4410-FY-P
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[Federal Register: August 11, 2006 (Volume 71, Number 155)]
[Proposed Rules]
[Page 46174-46177]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au06-26]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 555
[Docket No. ATF 9P; AG Order No. 2830-2006]
RIN 1140-AA24
Commerce in Explosives--Amended Definition of ``Propellant
Actuated Device'' (2004R-3P)
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: 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.
DATES: Comments must be submitted on or before November 9, 2006.
ADDRESSES: Send written comments to: James P. Ficaretta, Program
Manager; Room 5250; Bureau of Alcohol, Tobacco, Firearms, and
Explosives; P.O. Box 50221; Washington, DC 20091-0221; ATTN: ATF 9P.
Written comments must include your mailing address and be signed, and
may be of any length.
Comments may also be submitted electronically to ATF at
nprm@atf.gov or to http://www.regulations.gov by using the electronic
comment form provided on that site. You may also view an electronic
version of this proposed rule at the http://www.regulations.gov site.
Comments submitted electronically must contain your name, mailing
address and, if submitted by e-mail, your e-mail address. They must
also reference this document docket number, as noted above, and be
legible when printed on 8\1/2\'' x 11'' paper. ATF will treat comments
submitted electronically as originals and ATF will not acknowledge
receipt of comments submitted electronically. See the Public
Participation section at the end of the SUPPLEMENTARY INFORMATION
section for requirements for submitting written comments by facsimile.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives; U.S. Department of Justice; 650 Massachusetts Avenue, NW.,
Washington, DC 20226, telephone (202) 927-8203.
SUPPLEMENTARY INFORMATION:
Background
ATF is responsible for implementing Title XI, Regulation of
Explosives (18 United States Code chapter 40), of the Organized Crime
Control Act of 1970 (``Title XI''). One of the stated purposes of that
Act is to reduce the hazards to persons and property arising from
misuse and unsafe or insecure storage of explosive materials. Under
section 847 of title 18, United States Code, the Attorney General ``may
prescribe such rules and regulations as he deems reasonably necessary
to carry out the provisions of this chapter.'' Regulations that
implement the provisions of chapter 40 are contained in title 27, Code
of Federal Regulations (CFR), part 555 (``Commerce in Explosives'').
Section 841(d) of title 18 sets forth the definition of
``explosives.'' ``Propellant actuated devices'' along with gasoline,
fertilizers, and propellant actuated industrial tools manufactured,
imported, or distributed for their intended purposes are exempted from
this statutory definition by 27 CFR 555.141(a)(8).
In 1970, when Title XI was enacted by Congress, the Judiciary
Committee of the United States House of Representatives specifically
considered and supported an exception for propellant actuated devices.
H.R. Rep. No. 91-1549, 91st Cong., 2nd Sess. 64 (1970), reprinted in
1970 U.S.C.C.A.N. 4007, 4041. Neither the statute nor the legislative
history defines ``propellant actuated device.'' In 1981, however, ATF
added the following definition of ``propellant actuated device'' to its
regulations: ``[a]ny tool or special mechanized device or gas generator
system which is actuated by a propellant or which releases and directs
work through a propellant charge.'' 27 CFR 555.11.
In applying the regulatory definition, ATF has classified certain
products as propellant actuated devices: aircraft slide inflation
cartridges, inflatable automobile occupant restraint systems, nail
guns, and diesel and jet engine starter cartridges. ATF also examined
hobby rocket motors to determine whether they could be classified as
propellant actuated devices. To be classified as a ``propellant
actuated device,'' it is, in view of the definition set forth at 27 CFR
555.11, at a minimum necessary that a particular item be susceptible of
being deemed a ``tool,'' a ``special mechanized device,'' or a ``gas
generator system.'' Additionally, logic dictates that it is necessary
that a propellant actuated device contain and be actuated by
propellant.
To ascertain the common, contemporary meanings of ``tool,''
``special mechanized device,'' and ``gas generator system,'' it is
useful to look to Merriam-Webster's Collegiate Dictionary (10th Ed.,
1997) (``Webster's''). Webster's defines ``tool'' in pertinent part as
follows: ``a handheld device that aids in accomplishing a task * * *[;]
the cutting or shaping part in a machine or machine tool * * *[;] a
machine for shaping metal * * * '' Id. at 1243. ``Device'' is defined
as ``something * * * contrived'' and, more specifically, as ``a piece
of equipment or a mechanism designed to perform a special function.''
Id. at 317. For a particular device to be a ``special mechanized
device,'' Webster's suggests it would be necessary that it be both
unique and of a mechanical nature. (See definition of ``special,'' id.
at 1128; definition of ``mechanize,'' id. at 721.) As to the term ``gas
generator system,'' Webster's defines ``generator'' as ``an apparatus
in which vapor or gas is formed'' and as ``a machine by which
mechanical energy is changed into electrical energy.'' Id. at 485.
Further, Webster's defines ``system'' as ``a regularly interacting or
interdependent
[[Page 46175]]
group of items forming a unified whole.'' Id. at 1197. Thus, Webster's
suggests that ``gas generator system'' is properly defined as ``a group
of interacting or interdependent mechanical and/or electrical
components that generates gas.''
Although some may argue that certain hobby rocket motors are the
products of complex design and construction, the hobby rocket motor
consists essentially of ammonium perchlorate composite propellant
(APCP) encased by a cardboard, plastic, or metallic cylinder. Though it
also sometimes includes a nozzle, retaining cap, delay grain and
ejection charge, the hobby rocket motor is little more than propellant
in a casing, incapable of performing its intended function until fully
installed (along with an ignition system) within a hobby rocket.
The hobby rocket motor cannot be brought within the regulatory
definition of propellant actuated device as a ``tool'' because it is
neither ``handheld'' nor a complete ``device'' and because it is not a
metal-shaping machine or a part thereof. Further, it cannot be
considered to be a ``special mechanized device'' because, although
clearly designed to serve a special purpose, it lacks the necessary
indicia of a mechanized device. Indeed, the hobby rocket motor is in no
way reminiscent of a ``mechanism.'' See id. at 721. Finally, because it
has no interacting mechanical or electrical components, the hobby
rocket motor cannot be deemed to be a gas generator system.
In addition, in order to classify the hobby rocket motor as a
propellant actuated device consistent with the regulatory definition,
it would be necessary to conclude that the motor's cylindrical casing
is a ``device'' that is actuated by propellant. This simply is not a
reasonable interpretation in light of the context in which the hobby
rocket motor is used. Because the hobby rocket motor is, in essence,
simply the propellant that actuates the hobby rocket, and for the
additional reasons stated in the preceding paragraphs, the motor itself
cannot be construed to constitute a propellant actuated device.
Proposed Rule
This proposed rule amends the definition of ``propellant actuated
device'' in 27 CFR 555.11 to clarify ATF's determination that hobby
rocket motors do not fall within the exemption to the explosives
regulatory scheme for such devices.
ATF is engaging in rulemaking with regard to this issue because on
March 19, 2004, the United States District Court for the District of
Columbia found that ATF has in the past advanced inconsistent positions
regarding the application of the propellant actuated device exemption
to hobby rocket motors. ATF issued two related letters in 1994 that
could be interpreted to state that a fully assembled rocket motor would
be considered a propellant actuated device if the rocket motor
contained no more than 62.5 grams (2.2 ounces) of propellant material
and produced less than 80 newton-seconds (17.92 pound seconds) of total
impulse with thrust duration not less than 0.050 second. Prior to
assembly, the letters observed, the propellant would not be exempt as a
propellant actuated device in any amount.
The 1994 letters are admittedly confusing in that they can be
interpreted to intertwine the separate and distinct issues of the
``propellant actuated device'' exemption found in 27 CFR 55.141(a)(8)
(now, Sec. 555.141(a)(8)) and the long-standing ATF policy exempting
rocket motors containing 62.5 grams or less of propellant that has its
roots in the exemption then found at 27 CFR 55.141(a)(7). Had these
1994 letters been drafted to reflect accurately ATF's interpretation of
the regulations in existence at the time, they would have indicated
that sport rocket motors were not propellant actuated devices for
purposes of the regulatory exemption found in Sec. 55.141(a)(8) but
instead that motors containing 62.5 grams or less of propellant were
exempt from regulation pursuant to the exemption for ``toy propellant
devices'' then found at Sec. 55.141(a)(7). Although the ``toy
propellant device'' exemption was removed from the regulations and, due
to administrative error, was not replaced as intended with a specific
reference to the 62.5-gram threshold, ATF continued to treat hobby
rocket motors containing 62.5 grams or less of propellant as exempt
from regulation as clearly set forth in a 2000 letter to counsel for
the National Association of Rocketry and the Tripoli Rocketry
Association. The Department notes that the 62.5-gram exemption
threshold is the subject of another rulemaking proceeding (see Notice
No. 968, 68 FR 4406, January 29, 2003).
To remedy any perceived inconsistency and to clarify ATF's policy,
this proposed rule sets forth an amended regulatory definition
specifically stating that hobby rocket motors and rocket-motor reload
kits consisting of or containing APCP, black powder, or other similar
low explosives, regardless of amount, do not fall within the
``propellant actuated device'' exception and are subject to all
applicable Federal explosives controls pursuant to 18 U.S.C. 841 et
seq., the regulations in 27 CFR part 555, and applicable ATF policy.
Implementation of this proposed amendment is important to public
safety, and consistent regulatory enforcement efforts. The proposed
rule will confirm the position that hobby rocket motors are not exempt
from Federal explosives regulation, pursuant to the propellant actuated
device exception. The rule also clarifies that hobby rocket motors
cannot legally be classified as propellant actuated devices due to the
nature of their design and function.
How This Document Complies With the Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b),
Principles of Regulation. The Department of Justice has determined that
this proposed rule is a ``significant regulatory action'' under
Executive Order 12866, section 3(f), Regulatory Planning and Review,
and accordingly this proposed rule has been reviewed by the Office of
Management and Budget. However, this proposed rule will not have an
annual effect on the economy of $100 million, nor will it adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health, or
safety, or State, local or tribal governments or communities.
Accordingly, this proposed rule is not an ``economically significant''
rulemaking as defined by Executive Order 12866.
This proposed rule merely clarifies ATF's position that hobby
rocket motors and rocket-motor reload kits consisting of or containing
APCP, black powder, or other similar low explosives, regardless of
amount, do not fall within the ``propellant actuated device''
exception. The proposed rule will not in any way expand the universe of
rocket motors and rocket-motor reload kits that will remain subject to
ATF regulation. Accordingly, unless they fall within ATF's exemption
for rocket motors containing 62.5 grams or less of propellant, rocket
motors will remain subject to all applicable Federal explosives
controls pursuant to 18 U.S.C. 841 et seq., the regulations in part
555, and applicable ATF policy.
Rocketry hobbyists who acquire and use motors containing 62.5 grams
of propellant or less, however, can continue to enjoy their hobby on an
[[Page 46176]]
exempt basis, i.e., without regard to the requirements of part 555.
Without the 62.5 gram exemption, a typical rocket motor would be
required to be stored in a type-4 magazine (costing approximately $400)
because of the explosives contained in the motor. ATF has published a
proposed rule that will incorporate its existing 62.5-gram exemption
threshold into its explosives regulations (see Notice No. 968, 68 FR
4406, January 29, 2003).
As noted above, rocket motors containing more than 62.5 grams of
propellant will continue to be regulated by ATF. In 2002, Congress
enacted the Safe Explosives Act (SEA) which, in part, imposed new
licensing and permitting requirements on the intrastate possession of
explosives. Under the SEA, all persons who wish to receive explosive
materials must hold a Federal explosives license or permit. Prior to
its enactment, only persons who transported, shipped, or received
explosive materials in interstate commerce were required to obtain a
license or permit. Now, intrastate receipt, shipment, and
transportation also are covered. ATF recognizes the possibility that
some rocketry hobbyists may be operating under the false assumption
that all rocket motors, regardless of size, were exempted from
regulation under the ``propellant actuated device'' exception being
clarified by this proposed rule. It remains the case, however, that
rocketry hobbyists wishing to utilize rocket motors containing more
than 62.5 grams of propellant must comply with the existing applicable
requirements in order to obtain such rocket motors. The Department
welcomes comments on the number of individuals who may be expected to
terminate their participation in the use of rocket motors containing
more than 62.5 grams of propellant once they become aware that they
must comply with the applicable licensing and permitting requirements.
The Department also welcomes comments on what impact any such decline
in participation will have on the businesses that provide support to
rocketry hobbyists in the form of parts, materials, rocket motors, and
other launch accessories.
B. Executive Order 13132
This proposed rule will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the Attorney General has determined that this
proposed regulation does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.
C. Executive Order 12988: Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. The Attorney General has reviewed this proposed
regulation and, by approving it, certifies that this proposed rule will
not have a significant economic impact on a substantial number of small
entities. As indicated, the proposed rule merely clarifies ATF's
position that hobby rocket motors and rocket-motor reload kits
consisting of or containing APCP, black powder, or other similar low
explosives, regardless of amount, do not fall within the ``propellant
actuated device'' exception and are subject to all applicable Federal
explosives controls pursuant to 18 U.S.C. 841 et seq., the regulations
in part 555, and applicable ATF policy. The Department believes that
the proposed rule will not have a significant impact on small
businesses. Under the law and its implementing regulations, persons
engaging in the business of manufacturing, importing, or dealing in
explosive materials are required to be licensed (e.g., an initial fee
of $200 for obtaining a dealer's license for a 3-year period; $100
renewal fee for a 3-year period). Other persons who acquire or receive
explosive materials are required to obtain a permit. Licensees and
permittees must comply with the provisions of part 555, including those
relating to storage and other safety requirements, as well as
recordkeeping and theft reporting requirements. This will not change if
the regulations are adopted as proposed.
Rocket motors containing 62.5 grams or less of explosive
propellants (e.g., APCP) and reload kits that can be used only in the
assembly of a rocket motor containing a total of no more than 62.5
grams of propellant are exempt from regulation, including permitting
and storage requirements. Typically, rocket motors containing more than
62.5 grams of explosive propellant would be required to be stored in a
type-4 magazine that costs approximately $400; however, this proposed
rule would not impact ATF's storage requirements nor would it affect
the applicability of ATF's 62.5-gram exemption.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996. 5
U.S.C. 804. This proposed rule will not result in an annual effect on
the economy of $100 million or more; a major increase in costs or
prices; or significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based companies to compete with foreign-based companies in
domestic and export markets.
F. Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector of $100 million or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
G. Paperwork Reduction Act of 1995
This proposed rule does not impose any new reporting or
recordkeeping requirements under the Paperwork Reduction Act.
Public Participation
ATF is requesting comments on the proposed regulations from all
interested persons. ATF is also specifically requesting comments on the
clarity of this proposed rule and how it could be made easier to
understand.
Comments received on or before the closing date will be carefully
considered. Comments received after that date will be given the same
consideration if it is practical to do so, but assurance of
consideration cannot be given except as to comments received on or
before the closing date.
ATF will not recognize any material in comments as confidential.
Comments may be disclosed to the public. Any material that the
commenter considers to be confidential or inappropriate for disclosure
to the public should not be included in the comment. The name of
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the person submitting a comment is not exempt from disclosure.
A. Submitting Comments by Fax
You may submit written comments by facsimile transmission to (202)
927-0506. Facsimile comments must:
Be legible;
Include your mailing address;
Reference this document number;
Be 8\1/2\'' x 11'' in size;
Contain a legible written signature; and
Be not more than five pages long.
ATF will not acknowledge receipt of facsimile transmissions. ATF
will treat facsimile transmissions as originals.
B. Request for Hearing
Any interested person who desires an opportunity to comment orally
at a public hearing should submit his or her request, in writing, to
the Director within the 90-day comment period. The Director, however,
reserves the right to determine, in light of all circumstances, whether
a public hearing is necessary.
C. Disclosure
Copies of this proposed rule and the comments received will be
available for public inspection by appointment during normal business
hours at: ATF Reference Library, Room 6480, 650 Massachusetts Avenue,
NW., Washington, DC 20226, telephone (202) 927-7890.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in the Federal Register in April and October of each year. The RIN
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.
Drafting Information
The author of this document is James P. Ficaretta; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
List of Subjects in 27 CFR Part 555
Administrative practice and procedure, Authority delegations,
Customs duties and inspection, Explosives, Hazardous materials,
Imports, Penalties, Reporting and recordkeeping requirements, Safety,
Security measures, Seizures and forfeitures, Transportation, and
Warehouses.
Authority and Issuance
Accordingly, for the reasons discussed in the preamble, 27 CFR part
555 is proposed to be amended as follows:
PART 555--COMMERCE IN EXPLOSIVES
1. The authority citation for 27 CFR part 555 continues to read as
follows:
Authority: 18 U.S.C. 847.
2. Section 555.11 is amended by revising the definition for
``Propellant actuated device'' to read as follows:
Sec. 555.11 Meaning of terms.
* * * * *
Propellant actuated device. (a) Any tool or special mechanized
device or gas generator system that is actuated by a propellant or
which releases and directs work through a propellant charge.
(b) The term does not include--
(1) Hobby rocket motors consisting of ammonium perchlorate
composite propellant, black powder, or other similar low explosives,
regardless of amount; and
(2) Rocket-motor reload kits that can be used to assemble hobby
rocket motors containing ammonium perchlorate composite propellant,
black powder, or other similar low explosives, regardless of amount.
* * * * *
Dated: August 7, 2006.
Paul J. McNulty,
Acting Attorney General.
[FR Doc. E6-13201 Filed 8-10-06; 8:45 am]
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