[Federal Register Volume 74, Number 9 (Wednesday, January 14, 2009)]
[Rules and Regulations]
[Pages 1878-1892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-578]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 555
[Docket No. ATF 10F; AG Order No. 3032-2009]
RIN 1140-AA24
Commerce in Explosives--Amended Definition of ``Propellant
Actuated Device'' (2004R-3P)
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of 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 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: This rule is effective February 13, 2009.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives; U.S. Department of Justice; 99 New York Avenue, NE.,
Washington, DC 20226, telephone: 202-648-7094.
SUPPLEMENTARY INFORMATION:
I. Background
ATF is responsible for implementing Title XI of the Organized Crime
Control Act of 1970 (codified at 18 U.S.C. ch. 40) (``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 27 CFR part 555 (``Commerce in Explosives'').
Section 841(d) of title 18, United States Code, 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).
When Title XI was enacted by Congress in 1970, 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, at 64 (1970), as 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. These products include
aircraft slide inflation cartridges, inflatable automobile occupant
restraint systems, nail guns, and diesel and jet engine starter
cartridges.
II. Notice of Proposed Rulemaking (``NPRM'')
On August 11, 2006, the Department published in the Federal
Register a notice proposing to amend the regulations of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives 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, black powder, or other similar low
explosives. See Commerce in Explosives--Amended Definition of
``Propellant Actuated Device,'' 71 FR 46174 (Aug. 11, 2006) (``Notice
No. 9P''). ATF engaged 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 as taking the position 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,
irrespective of the quantity, would not be exempt as a propellant
actuated device.
The 1994 letters are confusing in that they can be interpreted to
intertwine the
[[Page 1879]]
separate and distinct issues of the ``propellant actuated device''
exemption found in section 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
section 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 section
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, Inc. The Department
notes that the administrative error mentioned above, relating to the
62.5-gram exemption threshold for hobby rocket motors, has been
corrected and was the subject of another rulemaking proceeding. See
Commerce in Explosives--Hobby Rocket Motors, 71 FR 46079 (Aug. 11,
2006). That final rule specifically provided an exemption for model
rocket motors that: (1) Consist of ammonium perchlorate composite
propellant, black powder, or other similar low explosives; (2) contain
no more than 62.5 grams of total propellant weight; and (3) 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. 27 CFR
555.141(a)(10).
To remedy any perceived inconsistency and to clarify ATF's policy,
the proposed rule set 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. As
proposed, the term ``propellant actuated device'' read as follows:
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.
The Department noted in Notice No. 9P that implementation of the
proposed amendment is important to public safety and consistent
regulatory enforcement efforts. In addition, the proposed rule
confirmed the position that hobby rocket motors are not exempt from
federal explosives regulation, pursuant to the propellant actuated
device exception. The proposed rule also clarified that hobby rocket
motors cannot legally be classified as propellant actuated devices due
to the nature of their design and function.
The comment period for Notice No. 9P closed on November 9, 2006.
III. Analysis of Comments and Final Rule
ATF received 275 comments in response to Notice No. 9P. Comments
were submitted by sport rocketry hobbyists, permittees, one hobby shop
owner, two sport rocketry organizations (the National Association of
Rocketry and Tripoli Rocketry Association), and others.
In its comment (Comment No. 261), the National Association of
Rocketry (``NAR'') stated that it is a non-profit scientific
organization dedicated to safety, education, and the advancement of
technology in the hobby of sport rocketry 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 4,700
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. Ninety-eight comments expressed
specific support for NAR's position as set forth in its comments in
response to Notice No. 9P.
According to its Web site (http://www.tripoli.org/), the Tripoli
Rocketry Association (``TRA'') (Comment No. 219) is an organization
dedicated to the advancement and operation of amateur high-power
rocketry. Its members are drawn from the United States and 22 other
countries.
In general, the commenters expressed opposition to the proposed
definition of ``propellant actuated device'' (``PAD''), arguing that
hobby rocket motors are PADs. Their reasons for objecting to the
proposed rule are discussed below.
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). ``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). Approximately 40
comments contended that rocket motors and rocket propellants (including
APCP) are not explosives. These commenters also contended that, even if
rocket motors and rocket propellants are explosives, they are
propellant actuated devices and exempt from regulation. Some of the
arguments raised by the commenters to support their position include
the following:
[APCP] only burns at a rate which is[,] in mm/second, far
below that which is even considered deflagration. (Comment No. 54)
Hobby rocket motors and reloadable motor propellant grains
are not designed to explode. Scientific and engineering tests and
references confirm that the propellants do not detonate or have a burn
rate consistent with explosives. (Comment No. 82)
Ammonium perchlorate/hydroxy-terminated polybutene
propellant does not function via explosion but rather by burning at a
rate of ~ 0.1''/second and therefore does not meet the definition of an
explosive. Explosives have much higher burn rates. (Comment No. 203)
APCP does not function by explosion, but by the generation
of gases through controlled burning. Recent tests by the BATFE [Bureau
of Alcohol, Tobacco, Firearms, and Explosives, or ATF] have indicated
that the burn rate of APCP is approximately 36-143 mm/sec, though its
testing should
[[Page 1880]]
concentrate on the actual formulation of APCP used in hobby rocketry,
which burns at a much slower rate. The actual burn rate of APCP used in
hobby and high-powered rocketry would more closely resemble that of a
road flare and is similar to that of common bond paper (4-56 mm/sec).
(Comment No. 257)
Department Response
As stated above, the federal explosives laws define the term
``explosives'' as ``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.'' In order to provide guidance to the public, and in
compliance with 27 CFR 555.23, ATF maintains and publishes a list of
explosive materials classified in accordance with the statutory
definition. Rocket motors generally contain the explosive materials
APCP, black powder and/or other similar low explosives. These materials
are on the ``List of Explosive Materials.'' However, there has been
some debate regarding the validity of including APCP on the list.
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, Inc. v. Bureau of
Alcohol, Tobacco, Firearms and Explosives, 337 F. Supp. 2d 1 (D.D.C.
2004). The district court held that ATF's decision to classify APCP as
a deflagrating explosive was permissible. Id. at 9. In February 2006,
the District of Columbia Circuit Court of Appeals disagreed with the
district court on this issue, because in its view ATF failed to provide
sufficient justification to support its classification with a specific,
articulated standard for deflagration. Tripoli Rocketry Ass'n, Inc. v.
Bureau of Alcohol, Tobacco, Firearms, and Explosives, 437 F. 3d 75
(D.C. Cir. 2006). The circuit court declined to set aside the
classification, and APCP thus remains on the ``List of Explosive
Materials'' that ATF is obligated to maintain. Id. at 84. The case was
remanded to the district court so that ATF may reconsider the matter
and offer an explanation for whatever conclusion it ultimately reaches.
ATF submitted the requested information, including test data results,
to the United States District Court for review. Pending the outcome of
this case, APCP remains an explosive and continues to be regulated as
such.
2. The Proposed Rule Holds Hobby Rocket Motors to a Different Standard
than Other Products Classified as PADs by ATF
Approximately 40 commenters indicated that ATF's assertion that
hobby rocket motors should not be classified as PADs is arbitrary. Some
commenters contended that the same arguments used by ATF to disqualify
hobby rocket motors as PADs can apply to other products that ATF has
classified as propellant actuated devices. Other commenters noted that
the proposed rule failed to explain ATF's process by which devices such
as nail guns, aircraft slide inflation cartridges, etc., warranted
classification as PADs. The following excerpts represent the views of
most of the commenters:
By BATFE's rationale that the ``rocket motor itself'' is not a
device because it cannot perform its function until installed, the
propellant charges for a nail gun, (or for that matter, an air bag
or aircraft escape slide inflator), prior to their installation in
the nail gun (or air bag or aircraft slide), would likewise not be
PADs. Yet they are exempt as PADs. BATFE's determination that a nail
gun reload is exempt, but a rocket motor is not, is therefore
arbitrary and capricious. (Comment No. 70)
The [NPRM] further mischaracterizes a rocket motor and confuses
the definition of a PAD. By the convoluted logic of the [NPRM],
accepted propellant actuated devices like ``nail guns'' used to
drive concrete anchors, diesel and jet engine starter cartridges,
and aircraft slide inflation cartridges would not meet the
definition either. In those ``tools,'' the ``propellant'' portion of
the tool is even simpler than a rocket engine. If you consider the
whole tool, i.e. the propellant containing device and the ``tool'' *
* * you must consider the whole of the rocket as the tool and not
just the propellant containing element. (Comment No. 182)
You then state * * * ``the hobby rocket motor is little more
than propellant in a casing, incapable of performing its intended
function until full installed (along with an ignition system).'' I
wish to point out that this statement is also true for aircraft
slide inflation cartridges and diesel and jet engine starter
cartridges as they are also incapable of performing their intended
function until fully installed in a diesel or jet engine or aircraft
slide. So are these items not PADs, if we apply the same strictures
that have been applied to model rocket motors? (Comment No. 199)
Part of the argument used in the proposed rule states that ``the
hobby rocket motor is, in essence, simply the propellant that
actuates the hobby rocket, and * * * cannot be construed to
constitute a propellant actuated device.'' The same line of
reasoning can easily be applied to any item in which the object
containing the propellant is separate from the rest of the device,
such as a nail gun cartridge or an automotive airbag deployment
device. Therefore, the agency's assertion that hobby rocket motors
should not be considered as PADs is arbitrary and inconsistent with
other devices that operate in a similar fashion but are so
considered. (Comment No. 219)
Consider the following examples, where BATFE's reasoning
outlined in the NPRM for hobby rocket motors is applied to other
devices cited by BATFE as qualifying as PAD[s].
The automobile airbag [aircraft slide inflation cartridge, jet
engine starter cartridge] 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.
BATFE cannot simultaneously rule hobby rocket motors are not
PADS yet declare other devices which function in exactly the same
underlying manner as hobby rocket motors to be PADS. Any such
attempt would be arbitrary, capricious or otherwise contrary to the
statue [sic] underlying the PADS exemption mandated by Congress.
(Comment No. 261)
A search of the Federal Register * * * found no instances of
notice and comment rulemaking regarding any propellant actuated
device determinations. Specific searches for aircraft slide
inflation cartridges, inflatable automobile occupant restraint
systems, nail guns and diesel and jet engine starter cartridges,
devices listed as meeting the PADS definition, returned no results.
The NPRM is silent about how such devices warranted a PADS
determination or how BATFE reached those conclusion[s.] However * *
* it appears that BATFE's PAD classification is completely arbitrary
and results driven * * * (Comment No. 261)
Department Response
The Department's position has been and continues to be that the
term ``propellant actuated device'' does not include rocket motors or
rocket-reload kits containing APCP, black powder, or other similar low
explosives. The definition of ``propellant actuated device'' in section
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.'' It is not the intention of this
rulemaking to evaluate other items that have been classified as
propellant actuated devices. The intention of the rulemaking is to
clarify the Department's position that rocket motors and rocket motor
kits are not exempt as propellant actuated devices.
ATF individually reviews each request for a propellant actuated
device determination, and the final decision is then relayed in written
form to the requestor specifying the reasons for approval or denial.
Each submission and response contains detailed and proprietary
information on chemical
[[Page 1881]]
compositions, system designs, and functionality, most of which may not
be disclosed to outside entities.
By way of illustration, an airbag inflation module is an example of
an item that would fit the description of a propellant actuated device.
ATF has exempted airbag modules as propellant actuated devices but has
not exempted the propellant inside the gas-generation canister. The
airbag module is a self-contained unit that is deployed by an internal
initiator or micro gas generator that receives an electronic pulse from
a crash sensor. The propellant charge inside the unit is converted into
a gas, which is then released to inflate the airbag cushion. ATF ruled
that these fully assembled airbag modules constitute a gas-generating
system. Other examples of items that would fit the description of
propellant actuated devices would be assembled seatbelt pretensioner
units and the aircraft parachute deployment devices referenced
elsewhere in this rulemaking.
3. Hobby Rocket Motors Meet the Current Definition of a PAD
As defined in the current regulations, the term ``propellant
actuated device'' means ``[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.'' As several
commenters pointed out, there are six possible combinations that would
meet the definition of a PAD:
a. A tool which is actuated by a propellant;
b. A tool which releases and directs work through a propellant
charge;
c. A special mechanized device which is actuated by a propellant;
d. A special mechanized device which releases and directs work
through a propellant charge;
e. A gas generator system which is actuated by a propellant; or
f. A gas generator system which releases and directs work through a
propellant charge.
In the proposed rule, ATF stated that 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 in no way functions as a mechanism. Finally, because it has no
interacting mechanical or electrical components, the hobby rocket motor
cannot be deemed to be a gas generator system. Therefore, a rocket
motor does not meet the first prong of the definition of a PAD. It is
noteworthy that a rocket's flight is powered by a propellant, and in a
sense, work is produced through a propellant charge. However, a rocket
motor by itself accomplishes neither of these actions. Therefore, a
rocket motor does not fit either of the descriptions in the second
prong of the definition.
In general, the commenters disagreed with ATF's determination that
hobby rocket motors are not PADs. Many commenters were critical of
ATF's use of a dictionary to define technical terms (e.g., ``gas
generator system''), while other commenters criticized ATF for what
they considered the agency's selective use of the dictionary to define
certain terms. Two commenters expressed concerns regarding ATF's use of
one dictionary (Merriam-Webster's Collegiate Dictionary) as the sole
source in defining terms. Following are excerpts from some of the
comments:
I was struck by the use of the Merriam-Webster's Collegiate
Dictionary as the source for the definitions of ``gas generator.''
It is inappropriate to use a dictionary to define terms commonly
used in a specialist field such as rocketry. A much better source is
the 7th edition of Rocket Propulsion Elements by George P. Sutton
(the standard University propulsion course textbook) where you will
see in the index ``Gas generator; see also Liquid propellant rocket
engine; Solid propellant rocket motor.'' Without a doubt hobby
rocket motors meet the definition of gas generators. (Comment No.
77)
A common dictionary is insufficient to define the technical
terms involved here; a science textbook would be more appropriate.
(Comment No. 212)
The definitions you employ are not wrong, but they are
incomplete and therefore misleading because you ignore other equally
valid definitions. (Comment No. 66)
[T]he ATF has contrived to select the least pertinent part of
Webster's definition of ``tool.'' It is utterly obvious that a
``tool'' [need] not necessarily be handheld; a Bridgeport Mill is a
``tool,'' but I defy any member of the ATF to ``hold'' one. Likewise
``cutting or shaping'' and ``machine for shaping metal'' are
ridiculously limiting statements; the large majority of tools do
none of these tasks. Webster's offers the synonym ``implement''
which is more appropriate, as ``a device used in the performance of
a task.'' This definition encompasses all of the devices that the
ATF has listed above as ``propellant actuated devices.'' None of
those same devices, with the single exception of a handheld nailgun,
would conform to any part of the ATF's * * * definition of ``tool.''
(Comment No. 60)
The primary definition of a tool in the Encarta dictionary is
``a device for doing work.'' Work by definition is the application
of force through a distance. Force is in turn defined as the product
of mass and acceleration. A rocket motor does work by accelerating
the gases it generates through its nozzle, and it generates thrust
whether or not it is installed in a rocket. (Comment No. 205)
In the Supplemental Information listed in the Federal Register ,
there were a variety of definitions listed which seem to imply that
rocket engines are not special mechanized devices, tools, or gas
generators. The conclusion stated * * * is incorrect. Per Merriam-
Webster's On-Line Dictionary, Definition 2a clearly indicates that
rocket motors can be considered tools.
Definition 2A: ``2a: something (as an instrument or apparatus)
used in performing an operation or necessary in the practice of a
vocation or profession.''
Obviously, a rocket engine is an ``apparatus'' (Webster
definition: ``1a: a set of materials or equipment designed for a
particular use'') It is used to perform the ``operation'' (Webster
definitions: ``1: performance of a practical work or of something
involving the practical application of principles or processes 2a:
an exertion of power or influence'') of lofting a rocket into the
air and it is necessary for the practice of this ``vocation'' (model
rocketry). (Comment No. 233)
There is not, as far as I know, one particular dictionary that
has been designated as the final arbiter on the meaning of all words
in the English language. Over the years, many groups of learned
scholars have labored long and hard to produce many fine
dictionaries and associated references. These scholars recognize
that, as a result of years of usage, many words have acquired a
broad range of meanings, all of which must be considered when
interpreting these words. (Comment No. 254)
Many commenters argued that the hobby rocket motor meets at least
one of the combinations of the PAD definition. The NAR (Comment No.
261) maintained that the hobby rocket motor meets all of the
combinations of the PAD definition:
The [PAD] definition consists of two parts, first a description
of the kind of device employed [tool, special mechanized device, gas
generator system] and secondly, a description of the means by which
work is done by that device [actuated by a propellant; releases and
directs work through a propellant charge]. Using these elements,
there are six possible combinations which would meet the legal
definition of a PAD. A rocket motor meets not one, but all three
device definitions in the regulation. It is a tool because its sole
purpose is to provide power for rockets. It's a specialized
mechanized device because it cannot be used for any purpose other
than to propel rockets. It is a gas generator system because an
exhaust gas is generated by all rocket motors. A rocket motor meets
both types of motive work used in the regulatory definition.
Clearly, rocket motors are actuated by propellant, and certainly
release and direct work through a propellant charge.
Following are excerpts from other comments:
[T]he devices in question [hobby rocket motors] clearly do meet
several and perhaps
[[Page 1882]]
all of these six definitions. The point is made most clearly with
respect to 5 and 6 [e and f, above]: A * * *
rocket motor clearly is a gas generator system, it clearly is
actuated by a propellant, and it clearly releases and directs work
through a propellant charge. ATF's argument to the contrary is
simply false: ``Finally, because it has no interacting mechanical or
electrical components, the hobby rocket motor cannot be deemed to be
a `gas generator system.' '' A hobby rocket motor does have
interacting mechanical components, including a carefully chosen
nozzle, liners and often o-rings and washers to contain the pressure
and protect outer casings, and various components designed to
actuate the rocket's recovery system safely * * * [O]ne cannot
simply stuff propellant into a cylinder, as the ATF suggests, ignite
it, and expect it to perform as a model rocket motor. Hence the
devices in question do meet the fifth and sixth of the parts of the
definition of ``propellant actuated device.'' (Comment No. 17)
Without resorting to selective use of dictionary definitions,
one can certainly argue that hobby rocket motors ``generate gas.''
That is in fact their main purpose. The propellant in the device
generates gas, which is directed through a nozzle to release the
energy (work) of the expanding gas in a specific direction to thrust
the rocket forward. (Comment No. 24)
The argument that a hobby rocket motor is not a ``gas generator
system which * * * releases and directs work through a propellant
charge'' is also patently false. A solid-propellant rocket motor is
one of the simplest machines known to science, and it operates by
burning its propellant charge to generate copious quantities of gas
under pressure, which the other parts of the mechanism (such as the
combustion chamber and nozzle) work on to produce mechanical energy
of motion by confining, directing, and accelerating the gas flow.
The solid propellant rocket motor is the simplest, most
straightforward example of a device that directs work derived from
the burning of a propellant charge. (Comment No. 28)
A rocket motor is precisely a ``group of interacting or
interdependent mechanical and/or electrical components that
generates gas,'' which is the very definition of ``gas generator
system'' developed in the BATFE NPRM. A rocket motor has at least
two and often three interacting components: (1) The combustion or
pressure chamber in which the propellant charge is contained and
within which it burns, generating gas; (2) the deLaval converging-
diverging nozzle assembly which converts the thermal energy of the
propellant gas that the combustion chamber generates into directed
kinetic energy; and (3) in most motor designs, a mechanical-
pyrotechnic system of the opposite end of the pressure chamber that
actuates a recovery device. The rocket motor ``releases and directs
work'' (BATFE definition of a PAD) in its normal operation: the
precise technical definition of work is the application of force
across distance, and the rocket motor delivers force (propulsive
thrust) to an object (the rocket airframe) which is directed along
and travels across a distance (in flight, directed by its
aerodynamic stabilization system). Thus a rocket motor is a gas
generator system that directs work. Therefore, it is by BATFE's own
definitions, a propellant actuated device. (Comment No. 63)
Department Response
The Department acknowledges that words have numerous definitions,
many of which vary between dictionaries. The argument that ATF
selectively used Merriam-Webster's Collegiate Dictionary to better fit
its interpretation of propellant actuated device is not valid. The
Department's use of a universally accepted publication such as Merriam-
Webster's Collegiate Dictionary has been common practice upon which the
Department has relied to make past decisions and interpretations. The
Department continues in part to rely upon the previously mentioned
definitions to determine that rocket motors are not propellant actuated
devices. Because regulations should be understandable by all members of
the public, the Department does not believe it appropriate to rely upon
scientific and technical publications to define terms, as suggested by
some commenters. This would result in definitions understood only by
scientists and specialists in a particular field. The Department
believes this final rule adopts a definition that is technically
accurate, clear, and capable of being understood by all interested
parties.
Agencies are provided broad latitude to incorporate definitions
into the regulations. Several commenters have applied broader
definitions to illustrate that a rocket motor should be considered a
propellant actuated device. Unfortunately, these definitions are
sometimes practically inconsistent with the subject matter. For
example, one commenter cites definition 2(a) from Merriam-Webster's On-
Line Dictionary of ``tool'': ``something (as an instrument or
apparatus) used in performing an operation or necessary in the practice
of a vocation or profession.'' The usage example in this definition is
``a scholar's books are his tools.'' Outside of rocketry context, such
a definition could mean almost any physical item or abstract concept.
These comments certainly illustrate that words have multiple
definitions. However, the definitions of the words chosen by the
commenters are not particularly helpful in defining ``propellant
actuated device'' within the context of the federal explosives laws.
Applying the reasoning of these commenters to the definition of a
propellant actuated device would result in a definition under which
virtually any item containing a propellant would qualify as a PAD.
While not specifically addressing PADs in the law, Congress clearly did
not mean for ATF to apply definitions so broadly as to render the term
``propellant actuated device'' meaningless. Exceptions to statutory
prohibitions should be narrowly construed. The Department believes that
construing the term ``propellant actuated device'' to include any item
containing a propellant would be inconsistent with its mission to
reduce the hazards to the public arising from misuse and unsafe or
insecure storage of explosive materials. Exempting all propellants from
the permit, licensing, prohibited person provisions, and storage
requirements of the law would be irresponsible, particularly in light
of potential criminal and terrorist use of such items.
Many of the comments describe certain characteristics of rocket-
motor function and state that the definition of propellant actuated
device, specifically gas generator systems, speaks to these. These
comments are unpersuasive in their argument, as they fail to specify
that rocket motors function in the manner described largely due to
their interaction with other components of a rocket.
It is undisputed that rocket motors produce a large volume of gas
when ignited. Further, it is clear that the gas is forced through a
nozzle designed to produce thrust. However, the motor alone does not
constitute a system, or a ``regularly interacting or interdependent
group of items forming a unified whole.'' It is apparent that the motor
relies upon other items and parts, such as the rocket body, fins,
nosecone, and others, to function properly, and to therefore perform as
designed. However, this final rule is not intended to govern fully
assembled rockets.
Because the rocket motor does not constitute a system, and because
the successful direction of energy produced by a rocket motor requires
that the motor be integrated into a rocket, complete with other system
components, the Department finds that a rocket motor does not
constitute a gas generator system that releases and directs work.
4. Hobby Rocket Motors Are No Different From Other Approved PADs
Many commenters argued that a hobby rocket motor should be
classified as a PAD because it functions in a manner similar to other
products classified as PADs by ATF. Following are some of the arguments
presented by the commenters:
By using a chemical reaction that creates gasses exiting the
nozz[le] of the hobby rocket motor, the [resulting] thrust created
[[Page 1883]]
performs the task of lifting the hobby rocket off the ground. This
is the same reaction used to inflate aircraft safety slides,
automobile airbags and other PADS that enjoy the same exemption. The
inner workings of all of these PADS is the same. (Comment No. 112)
The purpose of the other propellant actuated devices that ATF
recognizes * * * [is] to convert chemical potential energy into
useful mechanical work--i.e., a nail gun, inflatable automobile
occupant restraint systems, etc. A rocket motor and the reload kit
that can be assembled to create the rocket motor clearly do the
same. (Comment No. 123)
It is not shown why it is valid that only hobby rocket motors
are proposed to lose this PAD status. Other devices still classified
as PADs, i.e., car air bag[,] gas generators and aircraft safety
systems, have very similar function, extremely similar mechanical
configuration, and contain very similar chemical compositions to
hobby rocket motors. Many of these devices classified as PADs
contain chemical compositions designed to be much more energetic
than the compositions used for hobby rocket motors. (Comment No.
212)
Devices that operate in a very similar function and contain many
of the same basic materials as hobby rocket motors are allowed by
BATFE to utilize the PAD exemption (including devices that function
as part of a larger overall device and that operate in conjunction
with other components, just like hobby rocket motors). For example,
BATFE has specifically exempted rocket motors of equivalent design
and size utilized in aircraft safety systems. (Comment No. 230)
There is regulatory inconsistency present in this NPRM as the
proposed regulation fails to address how and the basis for
regulating an identical rocket motor (the Industrial Solid
Propulsion line throwing rocket motor and the Aerotech 1200)
differently. The use in both applications is similar. The line
throwing motor delivers a payload to the intended area, and if flown
by a conventional rocket it can loft instrumentation for the
collection of scientific data or evaluate upper air wind speed and
direction during the descent phase. (Comment No. 232)
Rockets use the gas generating properties of burning propellant
to generate motion, in this case, to loft satellites, scientific
payloads, and even humans to high altitude and into space. This is
the exact same concept used by a cartridge in a nail gun, or the
propellant which enables an airbag to rapidly deploy. A rocket
motor, a nail gun cartridge, an airbag, and numerous similar devices
all work by the same princip[les], and should all be categorized and
regulated as such. They are all the working portions of large
systems which operate in concert to perform specific tasks and
functions. (Comment No. 257)
Rocket motors, as used in practice, have parallel operation
similar to other devices, listed by BATFE as PADS. The devices cited
by BATFE as PADS function as part of a larger whole, and rely on
other interacting components, just as rocket motors do. (Comment No.
261)
Department Response
Several commenters argue that rocket motors are similar in
function, construction and composition to other devices previously
exempted as PADs and therefore should be exempted as such.
ATF has historically granted propellant actuated device exemptions
to devices that are generally aimed at increasing personal safety or
enhancing the efficiency of mechanical operations. Each device must
contain and be actuated by a propellant, and also must be a complete
device, tool component, or mechanism that requires no other parts to
perform its intended function, including to whatever degree it may
operate within a larger or more complex system. Any such device must
not permit ready access to the propellant charge as manufactured.
For example, ATF has exempted airbag modules as propellant actuated
devices but has not exempted the propellant inside the unit. The airbag
module is a self-contained unit that is deployed by an internal
initiator or micro gas generator that receives an electronic pulse from
a crash sensor. The propellant charge inside the gas-generation
canister is converted into a gas, which is then released to inflate the
airbag cushion. ATF ruled that these fully assembled airbag modules
constitute a gas-generating system. As demonstrated by this analysis,
each item being considered for classification as a PAD is individually
assessed based upon design and usage characteristics.
5. There Are No Clear Technical Standards for Previous PADs
Classifications Listed in the Proposed Rule
In the proposed rule, ATF stated that in applying the regulatory
definition of a PAD it 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. Approximately 150 commenters argued that the
proposed rule provides no technical standards for those products
previously classified by ATF as PADs. According to the NAR,
One device listed is hand held, but others are not. One device
is whole and stands unto itself, the others are incorporated into
larger machines or devices. The NPRM is silent on the size, shape,
functions or other measurable specification[s] associated with
listed PADs. Nowhere are clear, measurable standards for PADs
outline[d] in any detail. Unless and until BATFE can provide
potential PADs applicants such specification, there is no consistent
basis on which applicants could determine whether their devices
would qualify as PADs. (Comment No. 261)
Another commenter expressed similar concerns:
Although the proposed rule claims that the ATF has classified
certain products as PADs, there is no reference provided to support
that such judgments were ever shared with the public, or that they
exist anywhere for that matter. If they do exist, what are the
standards by which such classifications were made? (Comment No. 255)
Department Response
The commenters expressed concern about the lack of specific
technical standards to be used in making propellant actuated device
determinations. They suggest that a person would be at a loss to make
their own determination regarding a particular item that may be a
propellant actuated device.
Congress did not provide extensive guidance as to what size, shape,
or specific functions should be taken into account with respect to
propellant actuated device determinations. In fact, a description of
items determined by the Department to be propellant actuated devices
would include a wide variety of explosive weights, various shapes, and
a number of work functions to be performed. This great variation in the
types, sizes, and functions of devices makes it difficult to specify
technical standards for such classifications. Moreover, the law clearly
distinguishes between a federal agency's general interpretations of the
laws it enforces, which cannot be changed without the notice-and-
comment process, and federal agency opinions applying that law to the
facts of a particular case, which are not subject to notice-and-comment
requirements. York v. Secretary of Treasury, 774 F.2d 417, 420 (10th
Cir. 1985) (classification of firearm as machine gun is ``not a
rulemaking of any stripe''). ATF classification decisions related to
particular items fall squarely in the latter category. Id.; Gun South,
Inc. v. Brady, 877 F.2d 858, 865 (11th Cir. 1989) (``[A]ctivities which
involve applying the law to the facts of an individual case, do not
approach the function of rulemaking.'') The Department is not required
to disclose the internal deliberative process used in making PAD
classifications and wishes to maintain the flexibility to modify
evaluation criteria as products and the market evolve. Any person
wishing a classification of an explosive device may request one, free
of charge, at any time by contacting ATF.
6. Congress Did Not Specify That Mechanism, Metal Work, or Inclusion
in, Exclusion From, or Stand Alone Was a Requirement for a PAD
Determination
In the proposed rule, ATF stated that the hobby rocket motor cannot
be brought within the regulatory definition
[[Page 1884]]
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 in no way functions as a mechanism.
Finally, because it has no interacting mechanical or electrical
components, the hobby rocket motor cannot be deemed to be a gas-
generator system.
Approximately 130 commenters indicated that Congress intended a
broad definition be applied to PADs and they argued that the proposed
rule set forth a narrow interpretation of the term. As one commenter
stated, ``Congress did not specify any particular type of device to be
excluded from the definition. Nothing about the size, complexity, work
product produced, whether or not a PAD might be used in or with other
components was specified in [the] statu[te].'' (Comment No. 163)
Department Response
Congress did not define the term ``propellant actuated device,''
nor did it provide significant criteria for use in determining which
devices should be PADs. The commenter suggested that Congress did not
focus on the nature of the explosive materials in question. The
Department disagrees with this contention. By the very nature of the
term ``propellant'' it is clear that Congress did not intend for
devices actuated by other types of materials (e.g., high explosives) to
be considered propellant actuated devices.
In addition, a review of the Congressional testimony provides
insights as to what Congress may have considered as propellant actuated
devices. Frederick B. Lee from Olin Corporation provided testimony, see
H.R. Rep. No. 91-1549, at 64 (1970), as reprinted in 1970 U.S.C.C.A.N.
4007, 4041., on smokeless propellants and various Olin smokeless
propellant devices that he felt should be exempted. When describing
these devices, Mr. Lee stated, ``these devices are all aimed at
increasing personal safety or enhancing the efficiency of mechanical
operations.'' Although Congress did not define the term ``propellant
actuated device,'' and did not exempt these devices from the explosives
controls in the final legislation, this excerpt provides some
indication of the types of devices contemplated by Congress in their
deliberations related to propellant actuated devices.
The Department agrees that Congress intended the use of discretion
and judgment in determining which devices should be exempted as
propellant actuated devices. Further, the Department believes that
Congress intended for this term to include devices designed to perform
some type of work. However, the Department believes that Congress did
not intend for ATF to disregard considerations such as public safety
and the potential for misuse of materials under consideration. Rather,
Congress intended for ATF to judiciously apply this term to avoid
exempting items that could pose a significant danger to the public if
left unregulated. Therefore, the Department disagrees with the
commenter's conclusion that ATF is precluded from considering factors
other than the purpose for which the device is used.
7. ATF Has Not Established a Clear Process for Application, Review,
Adjudication, and Appeal for Parties Seeking a PADs Definition for
Their Devices
Many commenters (approximately 145) stated that the proposed rule
failed to provide for any form of due process regarding the
application, review, adjudication, and appeal of organizations or
individuals seeking PADs exemptions. According to the NAR, ATF ``does
not appear to have any such mechanisms as regards PADS but merely
pronounces selected devices as receiving PADS classification. There is
no transparency around PADS determinations or their denial.'' Another
commenter noted that ``[a] clear process is needed to apply a clear
standard rather than arbitrary decision making of an arbitrary
standard. This allows one rocket motor to be denied PAD status as a
hobby rocket while another similar rocket motor could be granted PAD
status due to an arbitrary process.'' (Comment No. 249)
Department Response
The NPRM does not provide specific guidance regarding the
application, review, adjudication, and appeal process for propellant
actuated device determinations. Moreover, as stated previously, the law
clearly distinguishes between a federal agency's general
interpretations of the laws it enforces, which cannot be changed
without the notice-and-comment process, and federal agency opinions
applying that law to the facts of a particular case, which are not
subject to notice-and-comment requirements. However, procedures for
those seeking review of a PAD determination are standardized in the
Administrative Procedure Act, and information regarding past
determinations can generally be obtained through Freedom of Information
Act requests.
Accordingly, the Department disagrees with the contention that
there is any inconsistency or arbitrary application of the PAD
exemption. Specifically, 5 U.S.C. 702 et seq. provides for judicial
review of an agency action, when a person is adversely affected or
aggrieved by the action. Therefore, the judicial system is available to
review the agency's actions when an item is submitted for
classification under the federal explosives laws. Furthermore, except
for confidential, proprietary, or statutorily protected information,
copies of classification and exemption letters can be obtained from the
Department through the Freedom of Information Act. These letters often
contain a description of the submitted item and an analysis applied to
the item in order to determine whether it meets the regulatory
definition of a propellant actuated device. Finally, classification
letters contain the name and phone number of an ATF officer who can be
contacted to answer any questions or concerns regarding the
classification. It is the Department's position that information
regarding PAD classifications is readily and openly available and
review of classifications can be addressed through the judicial system.
8. ATF Has Granted PADs Status to Aircraft Safety Systems That Use the
Same Technical Approach as Hobby Rocket Motors
Approximately 155 commenters noted that ATF failed to list in the
proposed rule a product that it has classified as a PAD that is
functionally equivalent to a hobby rocket motor--an aircraft safety
system rocket motor. The following comment represents the views of most
of the commenters:
BATFE failed to list aircraft safety system rocket motors in
their listing of PADS, even though such systems have been granted
PADS status. Details on these systems can be found at http://brsparachutes.com/default.aspx. These parachute deployment devices
are installed in approximately 1,000 FAA certificated airplanes and
18,000 ultralight aircraft. These devices are exactly functionally
equivalent to hobby rocket motors. Either both hobby rocket motors
and parachute deployment devices are ``propellant actuated
devices,'' or neither is a PAD. Both systems use PADS involving
airframes with parachutes, not operating explosive devices. Any
attempt to deny PADS classification to hobby rocket motors while
simultaneously exempting parachute deployment devices would be
arbitrary. (Comment No. 163)
[[Page 1885]]
Department Response
The purpose of the NPRM was not to invite review of, and solicit
comments on, propellant actuated device determinations with respect to
a broad range or complete list of items. Rather, the purpose of the
notice was to propose amendment to the regulations at 27 CFR part 555
to clarify that the term ``propellant actuated device'' does not apply
to rocket motors or rocket-motor reload kits consisting of or
containing ammonium perchlorate composite propellant, black powder, or
other similar low explosives, and to invite comment on this specific
issue. However, the item detailed in the comments (parachute deployment
devices) was not determined to be a propellant actuated device. Rather,
it was exempted by ATF as a special explosive device under the
provisions of 27 CFR 555.32, which contains criteria for exemption
different from that used for propellant actuated device determinations.
Apart from this difference, it is incorrect to categorize ``parachute
deployment systems'' as similar to rocket motors. The explosives
contained in these systems, although critical to their function, are
only a small part of the overall product. These parachute deployment
systems are sold and have been exempted as complete systems. The
described parachute deployment system is a multi-component system that
includes, but is not limited to, an activation handle, rocket-motor
igniter, propellant rocket motor, parachute harness, canister, and bag.
Individual rocket motors apart from the final assembly on the aircraft
must still comply with all applicable ATF explosive laws and
regulations. This is consistent with the final rule on rocket-motor
propellant actuated device status.
9. The Proposed Rule Is a Major Rule Pursuant to the Small Business
Regulatory Enforcement Fairness Act of 1996
In Notice No. 9P, ATF stated that the 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, because it would 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. Approximately 125
commenters disagreed with ATF's assertion. In its comment (Comment No.
261), the NAR noted the following:
U.S. manufacturers currently dominate the export market for
rocket motors. Denial of a PADS exemption for hobby rocket motors
will adversely affect U.S. rocket motor manufacturers' ability to
attract investment, innovate and compete due to the far higher costs
of regulatory compliance, and a shrinking market for hobby rocket
motors. BATF[E] cannot publish a final rule simply by asserting the
rule would not have adverse impacts under the Small Business
Regulatory Enforcement Fairness Act of 1996. BATFE must provide the
means and economic analysis by which it determined the proposed rule
would not have adverse impacts for public comment.
Another commenter stated the following:
The model rocket hobby is interdependent with a number of small
businesses engaged in the manufacture, resale, and support of model
rocket engines. In further complicating consumer purchase of these
engines, this proposal will have serious negative impacts in terms
of the Small Business Enforcement Fairness Act of 1996. It will
interfere with both domestic and foreign business, putting these
U.S. companies at competitive disadvantage. (Comment No. 39)
A hobby shop owner provided the following comments:
The proposed regulations have already had and will have further
negative impact on my small business. My ability to compete globally
will literally be eliminated as a result of this rule. (Comment No.
260)
Department Response
The commenters' contentions rest on an inaccurate portrayal of this
rulemaking and Department policy. Specifically, the commenters suggest
that if the proposed rule were adopted, it would significantly change
the classification of rocket motors and the Department's regulation of
these materials. This is not the case. For many years, ATF has
regulated low explosives, including rocket motors not exempted as toy
propellant devices (those containing 62.5 grams or less of propellant
material). This rulemaking is simply a clarification of a long-standing
position. If adopted, this proposed rule will not affect the current
and past classification of rocket motors or the determination that they
are not propellant actuated devices. The Department's regulatory
requirements and enforcement program regarding rocket motors will
remain unchanged. Therefore, the Department can assert with confidence
that the costs associated with doing business in the United States and
abroad, for rocket motor-related businesses, will not be significantly
affected by this rulemaking. The commenters have not provided any
substantive support for the assertion that the international rocket-
motor industry will be adversely affected.
10. The Proposed Rule, if Adopted, Will Have a Negative Effect on the
Sport Rocketry Hobby and Small Businesses
Approximately 70 commenters argued that the proposed rule will have
a negative effect on the sport rocketry hobby and on small businesses.
Some commenters believe that many individuals currently participating
in the hobby will stop doing so and many more potential new
participants will decline to participate in the hobby. The commenters
contend that reduced participation in the hobby will result in reduced
sales of model rocket motors. Some commenters disagreed with the
Department's determination that the proposed rule is not an
``economically significant'' rulemaking as defined by Executive Order
12866. Following are excerpts from some of the comments:
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 ATF
inspections. (Comment No. 96)
Every entity that participates in this market is a small entity
as defined by statute. ATF should undertake a rigorous assessment of
the economic impact of this effectively new regulation. ATF's
assertion that everyone involved in the market is already regulated
is false; this rule effectively eliminates a means by which a
significant number of users were able to participate in this market.
A large number of these users may not be able, or elect not to,
obtain the requisite permits, thus significantly reducing the market
for these products. (Comment No. 205)
I participated in a club buy of a magazine and an associated
purchase of primary insurance. The cost of this worked out to be
$100 per person up front plus $100 per year per person for liability
insurance. Even this relatively cost effective method of meeting
onerous BATFE expectations would have a major impact on the small
rocketry community. In particular, if NAR's 2000 Sport Rocketry
flyers were to engage in a similar strategy, they would pay in the
aggregate approximately $200,000 (one time buy of the magazine) plus
$267,000 per year to sustain the cost of principle insurance and the
recurring cost of the [low explosives user permit] (LEUP). Add in
the Tripoli Rocketry Association's 3000 members who are high-power
certified and this only exacerbates the staggering cost. A
conservative estimate of the total real cost of this unneeded
regulation is as follows:
$500,000 one-time cost upon implementation of the NPRM
$665,000 sustained yearly average cost (insurance and LEUP) (Comment
No. 255)
Obtaining an LEUP requires the ability to store APCP and most
people in urban and
[[Page 1886]]
suburban environments aren't able to get permission from local
authorities to do so. The net effect of this rulemaking will be to
force a large percentage of the rocket enthusiasts out of the hobby
and to shut down a 100 million dollar industry. (Comment No. 257)
The proposed regulations have already had and will have further
negative impact on my small business. My ability to compete globally
will literally be eliminated as a result of this rule. (Comment No.
260)
Department Response
This rulemaking is simply a clarification of a long-standing
position. If adopted, the proposed rule will not affect the current and
past classification of rocket motors, or the Department's regulatory
requirements and enforcement program regarding rocket motors.
One commenter provided estimated costs associated with the proposed
rulemaking. The commenter mistakenly suggests that all rocket members
of NAR and Tripoli will require storage in approved storage magazines
when in fact only those individuals who purchase, store, and use rocket
motors that contain more than 62.5 grams of propellant will require
access to approved storage magazines. Ninety percent of rocket motors
sold in the United States contain 62.5 grams or less of propellant,
therefore, this storage requirement only applies to 10 percent of the
rocket market. Those individuals who currently purchase and use rockets
that contain more than 62.5 grams of propellant should have already
obtained the necessary ATF permit and complied with storage
requirements, and this proposal should not affect the storage
requirements applicable to their rockets. Aside from the renewal fees,
these individuals should not incur any additional fees associated with
these requirements.
One commenter suggests that the rulemaking will force individuals
to stop using hobby rockets due to fees associated with explosive
permits, background checks, fingerprinting, and ATF inspections. ATF
does not and has never charged fees for inspections. The rulemaking
does not affect the permit fees associated with obtaining a federal
explosives permit. Current permit fees will remain at $100.00 for the
first three years (less than $34.00 a year) and $50 for every
subsequent three-year period (less than $17.00 a year). The background
checks and processing of required fingerprint cards are included in the
price of the ATF permit.
Therefore, the Department is confident that the costs associated
with doing business in the United States and abroad, for rocket motor-
related businesses, will not be significantly affected by this
rulemaking.
11. ATF's Statement That ``the Hobby Rocket Motor Is Little More Than
Propellant in a Casing'' Is Factually Incorrect
Eleven commenters disagreed with ATF's description of a hobby
rocket motor as being ``little more than propellant in a casing.''
Following are excerpts from some of the comments:
A hobby rocket motor must be considered to be the entire
construction of the motor including all components such as but not
limited to nozzle, retaining cap, delay grain, ejection charge, and
any other components necessary for the proper mechanical operation
of the motor. A hobby rocket motor cannot be reduced to ``little
more than propellant in a casing.'' (Comment No. 124)
The assertion that [the] hobby rocket [is] ``little more than
propellant in a casing'' is incorrect. Key components of a hobby
rocket motor are:
a. Nozzle
b. Pressure vessel (with an aft nozzle retaining system and a
forward
pressure/delay bulkhead)
c. Propellant grain(s)
d. Case liner/insulator
e. Delay grain
f. Ejection charge
g. Ejection charge holder
To use the phrase ``little more than propellant in a casing'' is
an oversimplification and demonstrates very little understanding of
the overall complexity of the system. (Comment No. 133)
This * * * statement is incorrect because the fundamentals of
rocket propulsion require the acceleration of the exhaust gases in a
particular direction in order to perform work. A road flare is
little more than a combustible mixture and a casing. It has no
nozzle by design and is not designed to generate thrust. A rocket
motor is at least three components: Propellant, a casing, and an
exhaust nozzle. Without a nozzle a rocket motor is functionally just
a road flare. (Comment No. 228)
The typical reloadable HP model rocket motor I use(d) is the
Aerotech H128. It employs a precisely designed and engineered case
(like the smaller motors), and a reload that includes carefully
formulated and manufactured propellant, sealing disks and O-rings,
liners and a specifically engineered nozzle. This is a patented
reloadable rocket motor system. The case is designed for re-use,
with engineered tolerances for the various reloads and well
established internal pressures they can create. The reloads
themselves are basically non-reusable items, each component
engineered for specific purposes in the motor's operation. These
motor systems are far more complex than the term ``propellant in a
case'' implies. (Comment No. 258)
Department Response
The statement ``the hobby rocket motor is little more than
propellant in a casing'' was taken from a previous rulemaking regarding
rocket motors. The comments failed to address the rest of the statement
in the previous rulemaking, which stated that ``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 rocket.'' This statement, taken in context, implied that
rocket motors in no way function as a mechanism because they lack the
necessary indicia of a mechanized device. The Department previously
acknowledged that rocket motors typically include a nozzle, retaining
cap, delay grain, and ejection charge. The Department also acknowledges
that variations exist among types of rocket motors available for
purchase by the general public. The Department maintains its view that
rocket motors are in no way analogous to a special mechanized device,
because they consist essentially only of propellant encased by a
cardboard, plastic, or metallic cylinder.
12. Model Rocket Motors Are Not a Threat to Homeland Security
Approximately 40 commenters argued that model rocket motors do not
pose a threat to homeland security, should not be regulated, and should
be classified as PADs. Some of the arguments raised by the commenters
are as follows:
The rockets we fly would make terrible weapons, [and] therefore
pose no risk to national security. The fuel used in them (APCP)
burns far too slow to be used for any other purpose than rocket
fuel. (Comment No. 32)
BATFE's concern that a hobby rocket motor could be used to
launch terror weapons against targets is unfounded. Terrorists have
already developed techniques for smuggling their weapons into
crowded areas without attracting attention, and therefore have no
need of a rocket, which would attract attention toward its launch
site when launched. Thus imposing this regulatory burden on the law
abiding rocketry community would have no benefit to the common
defense and security and is therefore not justified. (Comment No.
70)
I don't believe there has been a single recorded incident of a
terrorist action against the public using hobby rocketry motors of
any size. (Comment No. 215)
One hypothetical reason for a desire on the part of [the]
administration to regulate hobby rocket motors might be the
perception of a threat to security. But such a threat is indeed
perception and not reality. The Tripoli Rocketry Association is not
aware of any specific use of hobby rocket PADs in any security
threat, and BATFE does not appear to have made public any such
incident. (Comment No. 219)
[[Page 1887]]
Department Response
The Department is 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 90 percent of all rocket motors that are sold to
hobby rocketry enthusiasts.
The Department disagrees, however, with the suggestion that
ammonium perchlorate composite propellant rocket motors could not be
used for criminal or terrorist purposes. While it is true that APCP in
a rocket motor usually burns in a controlled manner, it can react much
more violently when more strictly confined. APCP can be used to make an
effective pipe bomb or other improvised explosive device. Criminal and
terrorist elements do not always focus on precise strikes against
specific or small targets. Terrorists have demonstrated in recent
international events the effectiveness of indiscriminately firing
improvised rockets into civilian areas. Terrorists could effectively
accomplish their goals of instilling fear and disrupting our economy
through the similar utilization of a large rocket within the United
States, regardless of whether they targeted a building or other
structure with great accuracy. Terrorism will exploit any
vulnerability. Allowing unfettered access to large rocket motors would
create opportunities for terrorists and criminals, and could make the
United States more vulnerable to the consequences of their activities
in many ways.
13. Historically, ATF Has Considered Hobby Rocket Motors To Be PADs
Several commenters maintained that historically ATF has considered
hobby rocket motors to be PADs, regardless of the propellant weight.
Following are some of the arguments raised by the commenters:
The BATFE exempted all APCP rocket motors regardless of
propellant weight up until the mid 1990's. They considered all
rocket motors propellant activated devices, which were exempt from
BATFE permits. Current APCP rocket motors use the same propellant as
before. Since Congress has not changed the definition of an
explosive during this time, it is illogical to now start regulating
rocket motors, nor within the powers of the BATFE to change.
(Comment No. 65)
Furthermore, the ``confusing'' letters from 1994 are rather
clear: ``An ATF manufacturer's license would be required to
manufacture ammonium perchlorate composite explosives. The exemption
at 27 CRF 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.'' That does not appear to be
the least bit confusing. (Comment No. 194)
Department Response
The comments that contend ATF has historically considered hobby
rocket motors to be propellant actuated devices are inaccurate. Among
industry members and in the rocketry community, there has been some
confusion regarding the status of rocket motors as PADs. This confusion
may be partially attributable to a classification letter drafted by ATF
in 1994 that incorrectly stated that rocket motors containing 62.5
grams or less of propellant were exempt from federal regulation as
PADs. A superseding 2000 letter more accurately and clearly stated that
rocket motors did not meet the regulatory definition of a PAD. The
intention of this rulemaking is to clarify ATF's position that rocket
motors are not and have not been exempted from federal explosive
regulation as propellant actuated devices.
14. Certain Terms Defined in the Proposed Rule (e.g., ``Tool'' and
``Device'') Were Not Included in the Initial Rulemaking That Defined
the Term ``Propellant Actuated Device''
As explained in the proposed rule, in 1981 ATF added the current
definition of a PAD to its regulations. Two commenters questioned
whether certain terms defined in the proposed rule, e.g., ``tool,''
``mechanized device,'' etc., were similarly defined during the
rulemaking proceeding that resulted in the 1981 regulation. According
to the commenters:
You do not say that the terms used (``tool'', ``mechanized
device,'' etc.) were themselves carefully defined as a part of the
1981 regulation. Therefore, it appears you are trying to narrowly
define them now, after the fact, in order to support your current
proposed rulemaking. (Comment Nos. 66 and 254)
Department Response
The Department has been charged with enforcing the federal
explosive regulations and applying them as Congress directed. In order
to work within the statutory language provided by Congress and the
resultant regulatory provisions, ATF analyzed and referenced certain
terms such as ``tool'' and ``special mechanized device'' in order to
give meaning to the technical term ``propellant actuated device.''
Therefore, the Department is not representing these words to be terms
of art that are specific to propellant actuated devices. Instead, these
terms are being used to further illustrate and articulate the concept
of a ``device.''
15. Implementation of the Proposed Rule Is Not Necessary for Correction
of a Demonstrated Public Safety Issue
ATF stated in the proposed rule that implementation of the proposed
definition of a PAD is important to public safety. Approximately 15
commenters argued that model rocketry is a safe hobby and that hobby
rocket motors should be exempt from regulation as PADs. Following are
excerpts taken from some of the comments:
I have been unable to find any reports of deaths, or even
serious injuries, related to hobby rocketry in this country. This is
due, in part at least, to the fact that the rocket motors you are
most concerned with in this proposed rulemaking (those containing
over 62.5 grams of propellant) are not available to the general
public * * *. [I]t is necessary that one be certified through, and
under the rules of, the NAR or TRA in order to purchase and use
these high-power motors. (Comment No. 66)
No example, case, documentation, or threat has been demonstrated
or presented to amend the regulation to exclude the devices in
question. No reason has been presented as to why this change is
``important to public safety.'' In my extensive professional
experience, I am not aware of any case where public safety was
jeopardized to the point that would warrant such an expansion of the
regulation. (Comment No. 133)
If the purpose [of the proposed rule] is public and personal
safety, I would point out that sport rocketry is already one of the
safest (if not the safest) outdoor hobbies today. (Comment No. 149)
Department Response
The Department acknowledges that the hobby rocket community, in
general, has demonstrated its ability to maintain a safe and
functioning hobby for thousands of individuals. However, APCP, a common
ingredient in hobby rocket motors, is an explosive material. By nature,
explosive materials present unique public safety hazards. Congress
determined that these types of materials should be subject to
regulation even though they are usually used in a lawful, utilitarian
manner. Accordingly, these explosives are regulated by law.
One commenter suggested that one of the reasons that there are few
injuries or deaths associated with high-power rocket use is that these
items are not available to the general public. Rather, a person must be
certified by a rocketry association in order to purchase motors of a
certain size. The Department agrees
[[Page 1888]]
that the purchase of large motors should be restricted, and it applauds
the rocket industry for setting standards to ensure that rockets are
not readily available to all members of the general public. Exempting
high power rocket motors as PADs would be inconsistent with the above
concerns, and with the Congressional mandate that the Department set
standards to ensure that only qualified persons receive explosives.
Another commenter states that ``[n]o reason has been presented as
to why this change is `important to public safety.' '' The same
commenter states that rocket motors should be excluded from regulation
because no reasons have been provided where public safety was
jeopardized.
The proposed rulemaking makes no change to the current explosive
regulations but rather clarifies existing policies regarding rocket
motors. Moreover, explosives of all types provide the means for
individuals with nefarious objectives or goals to cause significant
damage to life or property. Congressional mandate requires oversight
and regulation of these materials.
16. The Proposed Rule Violates the Federal Explosives Law and Fails To
Meet the Statutory Intent of the PADs Exemption
ATF is responsible for implementing Title XI of the Organized Crime
Control Act of 1970. One of the stated purposes of the federal
explosives law is to avoid placing any undue or unnecessary federal
restrictions or burdens on law-abiding citizens with respect to the use
of explosives for lawful purposes.
Propellant actuated devices, along with gasoline, fertilizers, and
propellant actuated industrial tools manufactured, imported, or
distributed for their intended purposes, are exempted from the
statutory definition of ``explosives'' in section 841(d) of title 18,
United States Code, 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:
It should be noted 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 purpose.
H.R. Rep. No. 91-1549, at 64 (1970), as reprinted in 1970 U.S.C.C.A.N.
4007, 4041.
Several commenters argued that the proposed rule either violates
the law because it places an undue burden on the lawful use of
explosives or it fails to meet the statutory intent of the PADs
exemption. Following are excerpts from some of the comments:
The statute clearly states that its purpose is not to impose an
undue burden on the lawful, peaceful uses of explosives. The
statutory PAD exemption is clearly and obviously intended to permit
use of materials classified as explosives without the burden of
permitting, when the explosive action is so limited and directed by
design as to be non destructive * * * i.e., when the explosive force
is so applied by design of the explosive and its containing device
that it does not destroy its container nor other nearby materials,
but performs otherwise useful work such as driving a nail, or
inflating an aircraft escape slide or automobile air bag, then the
explosive falls under the PAD exemption. A rocket (and its fuel)
clearly falls within this intent and is therefore entitled to the
PAD exemption. (Comment No. 70)
ATF's proposed rule is contrary to the intent of the enabling
law * * * in that it will place any undue and unnecessary Federal
restrictions or burdens on law-abiding citizens with respect to the
acquisition, possession, storage, or use of explosive materials for
lawful purposes, and in that it seeks to impose Federal regulations,
procedures, and requirements that are not reasonably necessary to
implement and effectuate the provisions of Title XI. (Comment No.
205)
In light of this legislative history, as well as the purpose of
the Act to avoid placing ``any undue or unnecessary Federal
restrictions or burdens on law abiding citizens'' * * * it is quite
clear Congress intended a broad definition, not a narrow one, be
applied to PADS * * *. BATFE's proposed rule ignores completely the
broad intent of the Congress relative to the nature and usage of
PADS by generating an artificially narrow interpretation of
Congressional intent. (Comment No. 261)
Department Response
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 and unsafe or insecure storage
of explosive materials. Therefore, this goal is the basis for all
regulatory action undertaken by the Department. Regulation is imposed
only to the extent that it is ``reasonably necessary to implement and
effectuate the provisions of this title.''
The Department believes that protecting the general public from the
potential for criminal or terrorist misuse of rocket motors greatly
outweighs any limited burden placed on individuals acquiring, using,
storing or selling these items.
17. The Proposed Rule Is Unreasonable
Several commenters contended that the proposed rule excluding hobby
rocket motors from the PAD exemption is unreasonable because it makes
no allowance for a ``responsible adult'' category of use between what
is safe enough for minors, e.g., the Consumer Product Safety
Commission-based 62.5 gram limit, and what is dangerous enough to
require special training, permitting, regulation, etc. The commenters
argued that this ``responsible adult'' category exists in most other
human endeavors. For example, children may ride bicycles and adults may
drive automobiles, but a Commercial Driver's License is only required
for people who drive tractor trailers and buses, not private
automobiles.
Department Response
The Department disagrees that persons deemed to be ``responsible
adults'' should be exempt from regulation of rocket motors. First and
foremost, Congress specifically addressed age standards for persons by
prohibiting distribution of explosive materials to anyone under the age
of 21. See 18 U.S.C. 842(d)(1). In doing so, Congress established a
statutory criterion for the age a person should be in order to receive
explosive materials. To deviate from that standard specifically for
rocket motors would be inconsistent with the statutory scheme.
Likewise, there is no basis within the statutory language to create an
exemption based upon age.
Although not relevant to the PAD determination, the regulatory
exemption set forth in 27 CFR 555.141(a)(10), which exempts rocket
motors that contain no more than 62.5 grams of propellant, did take
into consideration the Consumer Product Safety Commission standards.
This standard did not result in an age limitation, but instead is based
upon the safety and potential hazards associated with the motor. ATF's
explosives regulation, section 555.141(a)(10), applies an exemption to
rocket motors that are most commonly used by hobbyists, Boy Scouts, and
rocketry club members for learning and experimentation, i.e., those
with 62.5 grams or less of propellant. In effect, the exemption allows
for less-powerful rocket motors to be used by all age groups without
regulation, while leaving intact regulatory standards for more-powerful
rocket motors. An exemption based solely on age, however, would not be
grounded in any statutory provision and would be
[[Page 1889]]
inconsistent with the 62.5-gram threshold.
18. Hobby Rocket Motors Meet the Definition of a PAD According to the
Department of Commerce and Other Sources
Approximately 15 commenters cited various references to show that
the standard usage of the terminology ``propellant actuated devices''
specifically includes rocket motors. Following are some of the
references presented in the comments:
A document entitled, ``National Security Assessment of the
U.S. Cartridge and Propellant Actuated Device Industry Third Review,''
published in August 2006 by the U.S. Department of Commerce, Bureau of
Industry and Security, Office of Strategic Industries and Economic
Security.
A study released in 1963 by Frankford Arsenal,
``Propellant Actuated Device (PAD) Assisted Parachute System for Aerial
Delivery of Cargo.''
A test conducted in 1971 by the Aberdeen Proving Ground MD
Material Testing Directorate, ``Engineering Test of Rocket,
Compensating, Tip-Off for the OV-1 Mohawk Escape System'' (Report
Number APG-MT-3858).
A file entitled, ``Ordnance Technology,'' authored at the
Naval Surface Warfare Center, Indian Head Division.
The U.S. Army Project Manager Close Combat Systems.
The Army Materiel Command publication, ``Propellant
Actuated Devices'' (AMCP 706-270, 1963).
``Rocket Basics, A Guide to Solid Propellant Rocketry,''
published by Thiokol Propulsion (now ATK).
Department Response
The Department's purposes for and methods of classifying propellant
actuated devices under the federal explosives laws may vary from those
of other government agencies. Each government entity is charged with
fulfilling its own unique mission and interpreting its own unique
statutory authorities, as reflected in their corresponding regulations,
rulings, and policies. The Department's classification of these items
and its definition of ``propellant actuated device'' may vary from
other organizations' definitions of the same term. ATF must define the
term PAD and determine its application with reference to the statutory
mandates of title 18 U.S.C. chapter 40, ATF's specific mission, and the
goal of public safety; other agencies' interpretations of terms
applicable to their mission should have no effect on the Department's
deliberations in this regard.
The Department rejects the argument that because other entities
identify certain devices, some of which contain substantial explosives
weight, as propellant actuated devices, then the Department should
follow suit. Nonetheless, the Department has reviewed the
aforementioned documents and rejects the inference that these documents
identify a rocket motor alone as a propellant actuated device. The Army
Materiel Command Publication, ``Propellant Actuated Devices,'' was
replaced in 1975 by an updated version, which has since been rescinded.
The PADs referred to in the Army publication are complex systems
involving multiple components, designed for use in military vehicles.
Furthermore, the definition in the Army publication specifically states
that a PAD must accomplish or initiate a mechanical action. The rocket
motors in this final rule do not initiate or accomplish a mechanical
action.
The study by Frankford Arsenal, ``Propellant Actuated Device
Assisted Parachute System for Aerial Delivery of Cargo,'' was initiated
to study the feasibility of using PAD-type rockets to reduce the ground
contact velocity of air-delivered cargo.
The Department's review of ``Ordnance Technology'' from the Naval
Surface Warfare Center revealed no reference suggesting that rocket
motors alone are considered propellant actuated devices. This file made
no attempt to define propellant actuated device, nor did it establish
any criteria for such a designation.
The U.S. Department of Commerce's ``National Security Assessment of
the U.S. Cartridge and Propellant Actuated Device Industry'' was
initiated to analyze the current and long-term health and economic
competitiveness of the cartridge actuated device/propellant actuated
device industry and to develop recommendations for the Navy to ensure
the continued ability of the industry to support defense missions and
programs. The document was not intended to define ``propellant actuated
device,'' nor did it define or provide criteria to determine what a PAD
is. The Department questions the relevancy of this document to this
rulemaking proceeding.
The U.S. Army Project Manager Close Combat Systems manages over 190
separate programs that meet Army transformation goals of providing
smaller, lighter, more-lethal munitions over the next 20 years. The
Department found no reference to propellant actuated devices in their
publications and questions the relevancy of this program to the
question of whether rocket motors should be classified as PADs.
19. ATF's Statement That ``the Hobby Rocket Motor Is, in Essence,
Simply the Propellant That Actuates the Hobby Rocket'' Is Incorrect
Three commenters disagreed with ATF's statement that because the
hobby rocket motor is, in essence, simply the propellant that actuates
the hobby rocket, the motor itself cannot be construed to constitute a
propellant actuated device. Following are excerpts from the comments:
The ATF suggests ``the hobby rocket motor is, in essence, simply
the propellant that actuates the hobby rocket.'' No, the propellant
is the material (e.g., APCP) inside the motor. What is actuated is
the conversion of this propellant into a gas inside the motor. The
gas exiting the motor's nozzle moves the rocket motor in the
opposite direction. Used as intended in a rocket airframe (typically
nosecone, body and fins designed so as to be stable in flight) the
rocket motor moves the rocket upward. (Comment No. 152)
[T]he propellant alone cannot make a rocket motor function, but
the mechanical interaction of all the components does constitute a
propellant actuated device. (Comment No. 174)
The premise, that a motor is propellant, (in essence or
otherwise) is flatly, provably, wrong. If I put propellant in my
rocket, I will burn up my rocket. I need to load that propellant
into a motor in order to create thrust. Since the premise is wrong,
the conclusion can not follow. (Comment No. 205)
Department Response
The Department considers APCP, whether in powder form or fabricated
into propellant grains, an explosive. The Department is required under
the federal explosives laws to publish an annual list of explosives.
Since publication of the first ``Explosives List'' in 1971, ammonium
perchlorate composite propellant, the propellant used in many high-
powered rocket motors, has been classified as an explosive.
One commenter implies that rocket motors are not propellants. The
Department disagrees with this suggestion. Rocket motors, consisting
principally of propellant grains, are manufactured with APCP, which is
a regulated explosive.
Each of the above comments makes the distinction between APCP
propellant and a rocket motor containing APCP. Also, each suggests that
the rocket motor performs a function beyond what the APCP alone can
accomplish. The Department finds these to be reasonable assertions.
[[Page 1890]]
However, it is unclear how this differentiation between the rocket
motor and the APCP propellant makes more convincing the argument that
rocket motors are propellant actuated devices. The rocket motor has no
self-contained igniter, nor is it by itself serving any intended,
``actuated'' purpose. Therefore, rocket motors do not fall within the
definition of a PAD.
20. The Proposed Rule Will Have an Effect on the States (Executive
Order 13132)
In the NPRM, the Department stated that the proposed rule would 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.
Accordingly, in accordance with section 6 of Executive Order 13132, the
Attorney General determined that the proposed regulation did not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Two commenters, including the NAR, raised similar concerns
regarding the Department's determination that the preparation of a
federalism summary impact statement was not warranted. The NAR stated
the following in its comment:
First, the NPRM is silent about how this conclusion was reached.
There is no analysis or rational[e] provided for this conclusion.
BATFE fails to comment on the types, number and work of state
agencies who might be forced [to] change procedures by the proposed
rule. There is no qualification given to the size, duration or
nature of potential economic or regulatory impacts on state
governments. Secondly, state regulators who currently do not license
hobby rocket motors users, would face a great increase in licensed
explosive users should a PADS exemption not apply to hobby rocket
motors. Workloads for these state regulators will increase
dramatically, both as regards licensing and inspection without any
corresponding staff or funding increase. BATF[E] must address these
potential state impacts prior to publication of any final rule.
(Comment No. 261)
Department Response
The commenters' contentions appear to rest on inaccurate
assumptions regarding the relationship between state requirements and
the federal explosives regulations as well as a misunderstanding of
this rulemaking. Title XI of the Organized Crime Control Act of 1970
and its implementing regulations make clear that this law and the
regulations are not intended to affect state or other law. A license or
permit issued under the federal explosives requirements confers no
right or privilege to conduct business contrary to state or other law.
Similarly, compliance with state law affords no immunity from the
consequences of violation of the federal law and regulations. Finally,
the federal explosives laws under title XI of the Organized Crime
Control Act of 1970 place no enforcement burden or expectation on state
or other nonfederal authorities.
21. ATF Does Not Need To Regulate Model/Sport Rocketry
Three commenters argued that ATF's regulation of the model/sport
rocketry hobby is unnecessary. Following are some of the commenters'
reasons given to support their position:
[W]e have a safety record that is better than any other hobby or
sport; including baseball, swimming, or riding a bicycle. This
incredible safety record is a result of a safety code originally
developed by a former White Sands Range Safety Officer that is
always followed when our rockets are flown. We're a self-policing
hobby that needs no Federal intervention. (Comment No. 189)
The sport and high power rocketry community is fully able to
regulate itself without further intrusion of the United States
government. (Comment No. 223)
Hobbyists who wish to use large hobby rocket PADs for their
intended purpose must first gain permission from the Federal
Aviation Administration * * * to use the motors in U.S. airspace. To
require permission from yet another agency to purchase the motors is
redundant, an unnecessary duplication of effort to no logical
purpose. (Comment No. 219)
Department Response
The Department acknowledges that rocketry clubs and organizations
have implemented self-regulating procedures and policies that are
commendable. Voluntary club regulation and certification provide some
oversight of club members, but this final rule clarifies existing
policy that governs all persons, including potential terrorists,
felons, or illegal aliens.
One commenter incorrectly implies that ATF and the Federal Aviation
Administration (``FAA'') have duplicative roles in the regulation of
explosives. While it is true that FAA permission is necessary for
certain activities, ATF is the Federal agency primarily responsible for
regulating the purchase and storage of, and interstate commerce (with
the exception of transportation) in, these explosive materials.
Government agencies tailor their regulations to facilitate their
specific mission. For instance, Department of Transportation (``DOT'')
regulations are primarily designed to ensure the safe transportation of
explosive materials. The Department'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, the Department's regulations
are necessary to accomplish its specific mission.
In addition to Government agencies, the Department 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 governs all persons, including
potential terrorists, felons, or illegal aliens. Moreover, it applies
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.
22. Removal of Hobby Rocket Motors From Their Current Classification as
PADs Will Increase ATF's Work Load
One commenter, the Tripoli Rocketry Association (Comment No. 219),
contended that adoption of the proposed rule would place a burden on
ATF's resources. According to the commenter:
Currently, the classification of hobby rocket motors as PADs
eliminates or reduces the time-consuming and unnecessary inspections
by BATFE employees of records and storage of these harmless and
educational PADs by hobbyists. If the proposed rulemaking is
imposed, inspection of records and storage of such devices must be
resumed. The BATFE may have to provide further training to those
field operatives unfamiliar with rocket motors. The BATFE will also
have to deal with the applications for user's permits from hobbyists
who wish to use these devices. All such additional effort would be
unnecessary if the current classification of hobby rocket motors as
PADs is retained.
Department Response
The commenter has misinterpreted the Department's position on
rocket motors. It is and has been the Department's position that all
rocket motors and kits containing explosive materials such as APCP and
black powder are subject to the provisions of 27 CFR part 555. One of
these provisions provides an exemption for
[[Page 1891]]
motors and kits containing 62.5 grams or less of explosive material.
However, with respect to rocket motors and kits containing more than
62.5 grams of explosive material, ATF has been processing applications
from rocketry enthusiasts and conducting inspections as a regular
course of business. Therefore, the Department does not anticipate an
increased workload due to this rulemaking. Further, the Department's
field personnel have been regularly exposed to training and field
activities regarding rocket motors.
IV. Request for Hearings
Two comments requested that ATF hold public hearings on the
proposed definition of a PAD set forth in Notice No. 9P. According to
one commenter (Comment No. 247), the proposed rule ``is arbitrary and
capricious in many ways and violates a recent court decision of which
the ATF must be well aware. On this basis the proposed rule should not
be enacted. * * * The issuance of an arbitrary and capricious rule
change through a process that violates a recent DC Circuit of Appeals
decision must surely be an action that the Director should not take
solely on his own discretion.''
After careful consideration, the Director has determined that the
holding of public hearings with respect to the proposed definition of a
propellant actuated device is unnecessary and unwarranted. First,
issuance of this final rule complies in all respects with the
Administrative Procedure Act. Any party who believes the rule to be
arbitrary, capricious, or in excess of statutory authority may
challenge it in federal court. In addition, ATF's public hearings are
generally conducted to permit the public to participate in rulemaking
by affording interested parties the chance to present oral presentation
of data, views, or arguments. Most commenters who addressed the
proposed definition of a PAD 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.
V. Final Rule
After careful consideration of the comments received in response to
Notice No. 9P, this final rule adopts the definition of a propellant
actuated device as proposed, and confirms the Department's position
that hobby rocket motors are not exempt from federal explosives
regulation, pursuant to the propellant actuated device exception.
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 section
1(b) of Executive Order 12866 (``Regulatory Planning and Review''). The
Department of Justice has determined that this rule is a ``significant
regulatory action'' under section 3(f) of Executive Order 12866, 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, 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 rule merely clarifies ATF's long-held 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 rule does 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
of title 27 of the CFR, and applicable ATF policy.
Rocketry hobbyists who acquire and use motors containing 62.5 grams
of propellant or less, however, may continue to enjoy their hobby on an
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
rule that incorporates its existing 62.5-gram exemption threshold into
its explosives regulations. See 27 CFR 555.141(a)(10); Commerce in
Explosives--Hobby Rocket Motors (2004R-7P); 71 FR 46079 (Aug. 11,
2006).
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 that some rocketry
hobbyists may have been operating under the false assumption that all
rocket motors, regardless of size, were exempted from regulation under
the ``propellant actuated device'' exception. However, rocketry
hobbyists wishing to utilize rocket motors containing more than 62.5
grams of propellant must comply with the existing requirements in order
to obtain such rocket motors. See also infra section V.D (discussing
cost analysis pursuant to the Regulatory Flexibility Act).
B. Executive Order 13132
This 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
rule does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
C. Executive Order 12988: Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
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 rule and, by
approving it, certifies that this rule will not have a significant
economic impact on a substantial number of small entities. As
indicated, the rule merely clarifies ATF's long-held position that
hobby rocket motors and rocket-motor reload
[[Page 1892]]
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 of title 27 of the CFR, and
applicable ATF policy. The Department believes that the 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 upon the effective date of this
rule.
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 rule does
not impact ATF's storage requirements, nor does it affect the
applicability of ATF's 62.5-gram exemption.
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 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 of 1995
This rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act.
Disclosure
Copies of the notice of proposed rulemaking, all comments received
in response to the NPRM, and this rule will be available for public
inspection by appointment during normal business hours at: ATF Reading
Room, Room 1E-063, 99 New York Avenue, NE., Washington, DC 20226;
telephone: (202) 648-7080.
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.
0
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: January 7, 2009.
Michael B. Mukasey,
Attorney General.
[FR Doc. E9-578 Filed 1-13-09; 8:45 am]
BILLING CODE 4410-FY-P