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Case 1:00-cv-00273-RBW Document 116 Filed 03/16/2009 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________ )
TRIPOLI ROCKETRY ) ASSOCIATION, INC., and ) NATIONAL ASSOCIATION ) OF ROCKETRY, )
v.
) Plaintiffs, ) )
) Civil Action No. 00-0273 (RBW)
) BUREAU OF ALCOHOL TOBACCO ) & FIREARMS, ) ) Defendant. ) ) ____________________________________)
ORDER
The plaintiffs filed this action nine years ago challenging the defendant's regulation as an explosive under 18 U.S.C. § 841(d) (2006) a chemical compound known as ammonium perchlorate composite propellant ("APCP"), which is commonly used in the motors
of hobby rockets. After the Court ruled on the parties' initial cross-motions for summary judgment in this case, the plaintiffs appealed and the District of Columbia Circuit, reviewing the matter de novo, held that the defendant's classification of APCP
as an explosive based on its determination that the substance functions by deflagration violated the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2000), because the decision was arbitrary and capricious, an abuse of discretion, or otherwise not
in accordance with the law, Tripoli Rocketry Ass'n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 437 F.3d 75 (D.C. Cir. 2006). The Circuit Court therefore remanded the matter to this Court "with instructions to remand the case to the
agency for
Case 1:00-cv-00273-RBW Document 116 Filed 03/16/2009 Page 2 of 4
further consideration consistent with [its] decision." Id. at 84. The remand was ordered because the Court found that "[t]he agency ha[d] never provided a clear and coherent explanation for its classification of APCP." Id. at 81. The Court further found
that the agency "ha[d] never articulated the standards that guided its analysis" that would permit a court sitting in review to "determine whether [the defendant's] judgment reflect[ed] reasoned decisionmaking." Id.; see also April 20, 2006 Order. In its
October 13, 2006 memorandum the agency informed the Court that it had complied with the Circuit's mandate and was affirming its earlier decision to classify APCP as an explosive. Defendant's Notice of Agency Decision (Oct. 13, 2006). The plaintiffs
thereafter amended their complaint, the defendant filed its answer to the amended complaint, and both parties crossed-moved again for summary judgment on the certified administrative record.
The parties came before the Court on March 13, 2009, for a hearing on the parties' cross-motions for summary judgment. Upon consideration of the parties' written submissions, the administrative record presented to the Court, the applicable legal
authority, the oral arguments presented by the parties, and for the reasons expressed by the Court at the hearing on the motion, the Court finds that the agency's decision does not satisfy the standard for evaluating agency rulemaking because it was
arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A). Specifically, the defendant did not adequately explain why it came to the decision it did in light of contrary evidence in the
administrative record submitted by the plaintiffs, which tended to show that APCP can burn at a rate lower than that which the defendant designated as the threshold, and "which, if true, . . . would require a change in
Case 1:00-cv-00273-RBW Document 116 Filed 03/16/2009 Page 3 of 4
[the] proposed rule.'" La. Fed. Land Bank Ass'n, FLCA v. Farm Credit Admin., 336 F.3d 1075, 1080 (D.C. Cir. 2003); see D&F Afonso Realty Trust v. Garvey, 216 F.3d 1191, 1195 (D.C. Cir. 2000) (quoting Public Citizen, Inc. v. F.A.A., 988 F.2d 186, 197 (D.C.
Cir. 1993) ("'[t]he requirement that agency action not be arbitrary or capricious includes a requirement that the agency adequately explain its result . . . .'"). Here, the agency's shortcoming was its failure to articulate any rationale for finding
that the relevant and significant evidence in the record that conflicted with its position was unpersuasive, which it seemingly out-of-hand dismissed merely because it was contrary to the agency's ultimate conclusion.
As to the appropriate remedy to impose for the agency's failing, the Court has discretion to choose between vacatur of the agency's decision or remand to the agency without vacatur. See Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety
Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005) (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir.1993) ("[T]his court is not without discretion. 'The decision whether to vacate depends on the seriousness of the
order's deficiency . . . and the disruptive consequences of an interim change that may itself be changed.'"). Considering the number of years that have elapsed during which time the plaintiffs have awaited final resolution of the merits of their claims,
the fact that this matter has already been remanded once to the agency for further action consistent with the Circuit's decision, and it appearing that vacating the agency's decision will not pose any serious threat to the public's health or safety, the
Court will vacate the agency's decision to classify APCP is an explosive pursuant to 18 U.S.C. § 841(d).1
1
an explosive within the meaning of 18 U.S.C. § 841(d), nothing in this decision prevents it from
Should the defendant choose to reinstate the policy that ACPC is properly classifiable as
3
Case 1:00-cv-00273-RBW Document 116 Filed 03/16/2009 Page 4 of 4
Because the plaintiffs have conceded that were the Court to grant summary judgment in their favor on Count One of their third amended complaint "will moot all of remaining counts" of their complaint, Plaintiffs' Memorandum of Points and Authorities in
Support of Motion for Summary Judgment on Count 1 at 1-2 n.1, the Court having now granted summary judgment on Count One will dismiss all the plaintiffs' remaining counts of the complaint as moot.
Accordingly, it is hereby
ORDERED that the plaintiffs' motion for summary judgment is GRANTED. It is further
ORDERED that the defendant's motion for summary judgment is DENIED. It is further
ORDERED that the defendant's decision to classify APCP as an explosive under 18 U.S.C. § 841(d) is VACATED. It is further
ORDERED that the remaining counts of plaintiffs' third amended complaint are DISMISSED as moot and therefore this case is dismissed in its entirety.
SO ORDERED this 16th day of March, 2009.
_________/s/______________ REGGIE B. WALTON
United States District Judge
redrafting the rule in accordance with the tenets of the APA or from seeking an explicit statutory classification from Congress.
4
2
Disclusure is not disguise.
If you claim I thought I shipped explsives as nothing, you miss the
point.
If you admit I have papers that say they are NOT explosives, you get the point.
Of course the DOT monologue and menu of lies in administrative orders is going to take the most aberrant position possible. They are a
bureaucracy!
Look at the ATF!
But then you miss the point so often it is either intentional or you
cannot comprehend basic logic and english. Or both.
Jerry
--
Jerry Irvine, Box 1242, Claremont, California 91711 USA
Opinion, the whole thing. <mail to:01ro...@gte.net>
Please bring common sense back to rocketry administration.
Produce then publish. http://www.usrockets.com
My articles valuable? Donate http://tinyurl.com/2hmgv
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