• Re: Why does jerry irvine ship rocket motors as "model aircraft parts"?

    From Jerry Irvine@21:1/5 to All on Sat May 28 09:51:49 2022
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    LEGAL DISCLOSURE OF COMPLIANCE WITH FEDERAL REGULATIONS
    YOU HAVE BEEN SERVED!
    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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  • From David Schultz@21:1/5 to Jerry Irvine on Sun May 29 10:19:52 2022
    On 5/28/22 11:51 AM, Jerry Irvine wrote:
    ADVERTISEMENT
    LEGAL DISCLOSURE OF COMPLIANCE WITH FEDERAL REGULATIONS
    YOU HAVE BEEN SERVED!

    I thought this troll was dead.


    It is as if you have no idea that different laws/regulations have
    different definitions (carefully described in the law and regulations)
    for the same term.

    Even if APCP didn't meet the DOT's definition for explosive (it does)
    the next step back is not "model aircraft parts". Flammable solid
    perhaps. But that is still a hazardous material under DOT regulations
    and subject to shipping restrictions and requirements. Which you
    knowingly flouted. You and the less than 2 employees.

    A reputable lab (recognized by DOT in other words) would run the UN
    tests on samples of your "model aircraft parts" and say "UN 1.3".
    Perhaps 1.4 in limited quantities.

    Of course the big difference between the ATF and DOT is that the DOT has standards and procedures for testing and classifying materials. Hmmm,
    digging up the old DOT appeal determination (2003) I see that you
    claimed that you would submit the propellant for testing and
    classification. It would appear that you flat out lied to the DOT. They
    found no evidence of testing and if you had test results showing your propellant was no more hazardous than paper (and what an awful
    propellant that would be), you would cite it here. Twenty years should
    have been enough time.


    Uggh, feeding trolls makes me feel slimy.


    --
    http://davesrocketworks.com
    David Schultz

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