Commerce in Explosives-Hobby Rocket Motors (2004R-7P), 46079-46101 [06-6862]

Agencies

• Department of Justice
• Bureau of Alcohol, Tobacco, Firearms and Explosives
• Alcohol, Tobacco, Firearms, and Explosives Bureau
• Bureau of Alcohol, Tobacco, Firearms, and Explosives

[Federal Register Volume 71, Number 155 (Friday, August 11, 2006)]
[Rules and Regulations]
[Pages 46079-46101]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6862]



[[Page 46079]]

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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 555

[Docket No. ATF 6F; AG Order No. 2829-2006]
RIN 1140-AA25


Commerce in Explosives--Hobby Rocket Motors (2004R-7P)

AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), 
Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice is amending the regulations of the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify 
that the requirements of part 555 do not apply to model rocket motors 
consisting of ammonium perchlorate composite propellant, black powder, 
or other similar low explosives, containing no more than 62.5 grams of 
total propellant weight, and designed as single-use motors or as reload 
kits capable of reloading no more than 62.5 grams of propellant into a 
reusable motor casing. This final rule is intended to provide rocketry 
hobbyists with guidance to enable them to enjoy their hobby in 
compliance with the safety and security requirements of the law and 
regulations.
    The remaining proposals made in ATF's notice of proposed rulemaking 
(Notice No. 968) will be addressed separately in a forthcoming 
rulemaking document or documents.

DATES: This rule is effective October 10, 2006.

FOR FURTHER INFORMATION CONTACT: James P. Ficaretta; Enforcement 
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and 
Explosives; U.S. Department of Justice; 650 Massachusetts Avenue, NW., 
Washington, DC 20226, telephone (202) 927-8203.

SUPPLEMENTARY INFORMATION: 

I. Background

    ATF is responsible for implementing Title XI, Regulation of 
Explosives (18 United States Code (U.S.C.) chapter 40), of the 
Organized Crime Control Act of 1970. One of the stated purposes of the 
Act is to reduce the hazards to persons and property arising from 
misuse and unsafe or insecure storage of explosive materials. Organized 
Crime Control Act of 1970, Public Law 91-452, Sec.  1101, 84 Stat. 952 
(1970). Under section 847 of title 18, U.S.C., the Attorney General 
``may prescribe such rules and regulations as he deems reasonably 
necessary to carry out the provisions of this chapter.'' Regulations 
that implement the provisions of chapter 40 are contained in title 27, 
Code of Federal Regulations (CFR), part 555 (``Commerce in 
Explosives'').
    Under the law, the term ``explosives'' is defined as ``any chemical 
compound[,] mixture, or device, the primary or common purpose of which 
is to function by explosion.'' The definition states that the term 
``includes, but is not limited to, dynamite and other high explosives, 
black powder, pellet powder, initiating explosives, detonators, safety 
fuses, squibs, detonating cord, igniter cord, and igniters.'' See 18 
U.S.C. 841(d).
    ATF is required under the law to publish an annual list of items 
that fall within the coverage of the definition of explosives. Since 
publication of the first ``Explosives List'' in 1971, ammonium 
perchlorate composite propellant (APCP) has been classified by ATF as 
an explosive. This classification is based upon the statutory 
definition of ``explosives,'' which contemplates that items can 
``function by explosion'' either by detonating (dynamite and other high 
explosives detonate) or by deflagrating (low explosives, such as black 
powder, pellet powder, and rocket propellants, deflagrate, or burn very 
quickly). Because APCP deflagrates when confined, it has been 
classified by ATF as an explosive.
    Under the law and its implementing regulations, persons engaging in 
the business of manufacturing, importing, or dealing in explosive 
materials are required to be licensed. Other persons who acquire or 
receive explosive materials are required to obtain a permit. Licensees 
and permittees must comply with the provisions of part 555, including 
those relating to storage and other safety requirements, as well as 
recordkeeping and theft reporting requirements. However, certain 
activities and items have been given exempt status under the law (see 
exemptions at 18 U.S.C. 845(a)) and its implementing regulations at 27 
CFR 555.141.
    Although APCP is an explosive material, ATF currently exempts from 
regulation rocket motors containing 62.5 grams or less of this and 
other explosive propellants for reasons set forth below. Rocket motors 
that contain more than 62.5 grams of APCP are subject to all applicable 
Federal explosives controls pursuant to 18 U.S.C. 841 et seq. and the 
regulations in part 555.

II. Regulatory History

    In 1981, ATF exempted from regulation Class C explosives, including 
``common fireworks,'' and certain other explosives designated by United 
States Department of Transportation (DOT) regulations. Included among 
the items in the DOT regulations that were exempted by ATF were ``toy 
propellant devices and toy smoke devices'' that were defined by DOT as 
items ``consist[ing] of small paper or composition tubes or containers 
containing a small charge of slow burning propellant powder or smoke 
producing powder.'' ATF determined that 62.5 grams was the maximum 
amount of propellant that could be deemed a ``small charge'' for toy 
propellant devices as described in 49 CFR 173.100(u). Subsequently, DOT 
regulations were revised and the term ``model rocket motor'' was used 
to apply to items previously described as ``toy propellant devices.''
    Between 1996 and 1998, ATF updated its regulations (27 CFR 
555.141(a)(7)) to reflect various DOT revisions. In doing so, however, 
ATF inadvertently removed from the subsection all language under which 
``toy'' sport rocket motors had previously been exempted and failed to 
add language documenting the continued exemption of motors containing 
62.5 grams or less of propellant. See 61 FR 53688 (Notice No. 841, 
October 15, 1996); 63 FR 44999 (T.D. ATF-400, August 24, 1998). Despite 
this administrative error, ATF has continued to exempt sport rocket 
motors containing 62.5 grams or less of propellant from the provisions 
of the Federal explosives laws and regulations.
    The Safe Explosives Act (SEA), enacted in 2002 as Title XI of the 
Homeland Security Act, substantially amended the Organized Crime 
Control Act of 1970. In drafting the SEA, Congress took into 
consideration existing Federal explosives law and regulation, but did 
not do away with ATF's regulation of rocket motors containing more than 
62.5 grams of propellant, nor did it decide that motors containing no 
more than 62.5 grams of propellant should be regulated. Thus, it can be 
argued that Congress acquiesced in continuance of the exemption. 
Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462 
(1959); Ward v. Commissioner of the Internal Revenue Service, 784 F.2d 
1424 (9th Cir. 1986). This final rule clarifies in the regulations 
ATF's long-standing policy and reflects that, after careful 
consideration, ATF has determined that the 62.5-gram threshold is an 
appropriate exemption level.

[[Page 46080]]

III. Litigation--Tripoli Rocketry Association and National Association 
of Rocketry v. ATF

    In February 2000, the Tripoli Rocketry Association (Tripoli) and 
the National Association of Rocketry (NAR) brought a cause of action 
against ATF in United States District Court for the District of 
Columbia, alleging that:
    1. APCP does not ``function by explosion'' and, therefore, APCP is 
not an explosive material subject to control by ATF;
    2. ATF violated the Administrative Procedure Act (APA) by including 
APCP on the ``List of Explosive Materials'' without subjecting the List 
to ``notice-and-comment'' rulemaking;
    3. Even if APCP is an explosive, sport rocket motors are propellant 
actuated devices (PADs) and are, therefore, exempt from regulation 
pursuant to section 555.141(a)(8); and
    4. ATF violated the APA and acted arbitrarily and capriciously in 
setting the maximum-propellant-weight threshold for exempting sport 
rocket motors at 62.5 grams.
    In a subsequent amendment to the complaint, the plaintiffs alleged 
that certain kits are designed to enable rocket hobbyists to construct 
rocket motors containing more than 62.5 grams of propellant by placing 
multiple propellant grains (each weighing 62.5 grams or less) in a 
reusable motor casing, and that ATF had determined that these kits pose 
the same dangers and require the same controls as single-use rocket 
motors containing more than 62.5 grams of propellant and had classified 
them accordingly. According to plaintiffs, this classification is 
invalid because ATF did not engage in ``notice-and-comment'' rulemaking 
before making this determination.
    On March 19, 2004, the district court granted partial summary 
judgment to ATF on the issue of whether APCP is an explosive. In 
addition, the court concluded that ATF's determination that sport 
rocket motors containing not more than 62.5 grams of propellant are not 
PADs, which was confirmed by ATF in a letter dated December 22, 2000, 
was invalid because it was made without compliance with the APA. The 
court based its decision on its review of two letters issued by ATF in 
1994 that appeared to take a different position from the 2000 letter 
with respect to the applicability of the PAD exemption to hobby rockets 
containing not more than 62.5 grams of propellant. Finally, the court 
held in abeyance a ruling on the remaining counts of the lawsuit 
pending the completion of ATF's rulemaking that, among other things, as 
reflected in this document, will establish by regulation ATF's 
exemption for rocket motors containing no more than 62.5 grams of APCP, 
black powder or other similar low explosives (Notice No. 968, 68 FR 
4406, January 29, 2003).
    On February 10, 2006, the United States Court of Appeals for the 
District of Columbia Circuit determined that ATF's classification of 
APCP as an explosive could not ``be sustained on the basis of the 
administrative record,'' 437 F.3d at 81, and therefore remanded the 
case to the district court in order to allow ATF to ``reconsider'' the 
classification of APCP and offer a coherent explanation for whatever 
conclusion it ultimately reaches. Tripoli Rocketry Ass'n v. Bureau of 
Alcohol, Tobacco, Firearms and Explosives, 437 F.3d 75, 84 (D.C. Cir. 
2006). The court explained that ATF had not ``provided a clear and 
coherent explanation for its classification of APCP'' and did not 
``articulate the standards that guided its analysis.'' Id. at 81. The 
court did not vacate ATF's designation of APCP as an explosive, because 
it ``was in place long before the present litigation.'' Id. at 84. 
Therefore, APCP remains classified as an explosive material and 
continues to be regulated accordingly by ATF.
    On remand, the district court held a status conference with the 
parties on April 20, 2006, in which the court stated that ATF could 
pursue its testing and reconsideration efforts and work to provide a 
more thorough basis for the classification of APCP pursuant to the D.C. 
Circuit opinion. Presently, ATF is engaged in the reconsideration 
process and the matter is pending in district court.

IV. Miscellaneous

    The carefully-framed exemption embodied in this rule is maintained 
with a view to maximizing ATF's performance of its statutory 
responsibilities within the limits of available resources, without 
compromising public safety. If all hobbyists and retailers who receive 
or distribute rocket motors containing no more than 62.5 grams of 
explosive were required to obtain permits and licenses, ATF resources 
would be stretched beyond their limits to ensure compliance with 
regulatory requirements and effective administration of the existing 
Federal explosives laws.
    Specifically, the legal requirements placed upon hobbyists and 
retailers would, in turn, impose an unmanageable administrative burden 
on ATF. Industry statistics garnered from proprietary manufacturing 
information reflect that in 2004, there were more than 1.5 million 
purchasers of small rocket motors. Without the proposed exemption, 
hobbyists seeking permits to purchase the motors would undergo 
background checks, submit applications, and be subject to inspection by 
ATF. Additionally, based upon U.S. Census Bureau and industry 
information, it is conservatively estimated that there are 
approximately 10,000 retailers, including nationwide chain retail 
stores, as well as hobby, game, and toy stores that sell small rocket 
motors. These retailers sell the vast majority of their smaller motors 
to children and other hobbyists who use these smaller rocket motors 
exclusively. If required to obtain licenses, these retailers would be 
subject to requirements similar to those enumerated above and would 
need to maintain proper records of receipt and distribution of rocket 
motors.
    In view of the large universe of hobbyists who use small rocket 
motors and currently are not required to obtain permits--and also in 
view of the large number of currently-unlicensed retailers selling 
small rocket motors, it is apparent that to discontinue ATF's long-
standing practice of exempting motors containing no more than 62.5 
grams of explosive material would be to place upon ATF an 
administrative burden that would greatly outstrip the agency's 
licensing, inspection, and enforcement resources. An increase from the 
current 4,000 Federal explosives licensees to a potential 14,000 
licensees and an increase from 8,000 permittees to a potential 1.5 
million permittees would result in an unmanageable workload for ATF's 
administrative personnel and would hamper the agency's ability to 
effectively manage the overall regulation program with respect to both 
explosives and firearms. For instance, a massive increase in license 
and permit applications would undercut ATF's ability to promptly 
process firearms license applications if it became necessary to draw 
upon the firearms licensing staff already working at capacity. 
Furthermore, regulating motors with no more than 62.5 grams would 
consume these resources even though the hobby rockets that use these 
smaller motors have been found to pose a relatively small public safety 
hazard.

V. Notice of Proposed Rulemaking

    On January 29, 2003, ATF published in the Federal Register a notice 
of proposed rulemaking (NPRM) soliciting comments from the public and 
industry on a number of proposals to amend the regulations in part 555 
(Notice No. 968, 68 FR 4406). ATF issued the NPRM, in part, pursuant to 
the Regulatory

[[Page 46081]]

Flexibility Act (RFA), which requires an agency to review--within ten 
years of publication--rules for which an agency prepared a final 
regulatory flexibility analysis addressing the impact of the rule on 
small businesses or other small entities.
    Notice No. 968 proposed amendments to the regulations that were 
initiated by ATF and amendments proposed by members of the explosives 
industry. One proposal initiated by ATF concerned an amendment of the 
regulations to clarify the items that are exempt from the requirements 
of part 555. In particular, ATF proposed to amend 27 CFR 555.141 to 
provide that the regulations in part 555 do not apply to the 
importation and distribution of model rocket motors consisting of APCP, 
black powder, or other similar low explosives; containing no more than 
62.5 grams of total propellant weight; and designed as single-use 
motors or as reload kits capable of reloading no more than 62.5 grams 
of propellant into a reusable motor casing. This proposal mirrored 
ATF's long-standing policy, which had initially been adopted by the 
agency to give effect to the ``toy propellant device'' exemption that 
had existed in the regulations until 1998. Discontinuance of the 62.5 
gram or less exemption would render it infeasible for ATF effectively 
to administer the Federal explosives controls with respect to rocket 
motors, including those that pose the most threat to public safety and 
homeland security. Without the exemption, all requirements of the 
Federal explosives controls would apply to all persons who acquire and 
store hobby rockets, regardless of the amount of propellant contained 
in the motors, thereby spreading ATF resources so thin that ATF could 
not ensure compliance with regulatory requirements and effective 
administration of the Federal explosives law.
    The comment period for Notice No. 968, initially scheduled to close 
on April 29, 2003, was extended until July 7, 2003, pursuant to ATF 
Notice No. 2 (68 FR 37109, June 23, 2003). ATF received approximately 
1,640 comments in response to Notice No. 968. This final rule addresses 
only the proposal made in Notice No. 968 with respect to model rocket 
motors. The remaining proposals made in Notice No. 968 will be 
addressed separately in a forthcoming rulemaking document or documents.

VI. Analysis of Comments and Decisions With Respect to Model Rocket 
Motors

    Approximately 620 comments addressed ATF's proposal to exempt from 
regulation model rocket motors containing up to 62.5 grams of 
propellant. Comments were submitted by sport rocketry hobbyists, 
businesses that manufacture or sell hobby rocket motors and related 
products, one sport rocketry organization (the National Association of 
Rocketry (NAR)), and others.
    In its comments (Comment Nos. 974 and 1570), NAR stated that it is 
a ``non-profit scientific organization dedicated to safety, education, 
and the advancement of technology in the sport rocket hobby in the 
United States.'' The commenter further stated that, founded in 1957, it 
is the oldest and largest sport rocketry organization in the world, 
with over 4,800 members and 110 affiliated clubs. According to the 
commenter, it is the recognized national testing authority for safety 
certification of rocket motors in the United States and it is the 
author of safety codes for the hobby that are recognized and accepted 
by manufacturers and public safety officials nationwide. Thirty-seven 
(37) comments expressed specific support for NAR's position as set 
forth in its comments in response to Notice No. 968.
    Most commenters addressing the proposal argued that ATF should not 
regulate model rocket motors or model rocket propellant for reasons 
discussed below. Other commenters expressed specific concerns regarding 
the proposed regulation and those concerns are also addressed below.

A. Commenters' Reasons for Objecting to ATF's Regulation of Model 
Rocket Motors and Model Rocket Propellant

1. Rocket Motors and Rocket Propellants Are Not Explosives
    Under the law, the term ``explosives'' is defined as ``any chemical 
compound[,] mixture, or device, the primary or common purpose of which 
is to function by explosion.'' The definition states that the term 
``includes, but is not limited to, dynamite and other high explosives, 
black powder, pellet powder, initiating explosives, detonators, safety 
fuses, squibs, detonating cord, igniter cord, and igniters.'' See 18 
U.S.C. 841(d).
    As previously explained, ATF is required under the law to publish 
an annual list of items that fall within the coverage of the definition 
of explosives. Since publication of the first ``Explosives List'' in 
1971, ammonium perchlorate composite propellant (APCP), the propellant 
used in many high-powered rocket motors, has been classified by ATF as 
an explosive. This classification is based upon the statutory 
definition of ``explosives,'' which contemplates that items can 
``function by explosion'' either by detonating (dynamite and other high 
explosives detonate) or by deflagrating (low explosives, such as black 
powder, pellet powder, and rocket propellants, deflagrate, or burn very 
quickly). Because APCP deflagrates when confined, it has been 
classified by ATF as an explosive.
    Approximately 500 commenters contended that rocket motors and 
rocket propellants (including APCP) are not explosives because they do 
not ``function by explosion.'' In general, the commenters argued that 
rocket motors and rocket propellants neither detonate nor deflagrate. 
NAR argued that ATF's authority to regulate, in any manner, any form of 
propellant or rocket motor under the Federal explosives law first 
requires a determination that such items have as their primary or 
common purpose to function by explosion. NAR contended that ATF failed 
to make the required statutory determination for rocket motors or APCP 
in the notice of proposed rulemaking. As such, NAR concluded that ATF 
cannot regulate rocket motors consisting of APCP as an explosive. NAR 
also argued that ATF has failed to recognize that rocket motors 
containing APCP as a fuel source do not have as their primary or common 
purpose to function by explosion. According to the commenter--

    The leading manufacturer of APCP for rockets (Aerotech, Inc.) 
has recently explained that the formulation of APCP utilized in such 
rockets consists of between 40 and 77 percent ammonium perchlorate 
as the oxidizer, with the remainder consisting of various 
supplemental metals such as aluminum or magnesium for fuel, various 
other chemicals that serve as burn rate catalysts and antioxidants, 
and a synthetic rubber binder. The rubber binder effectively 
passivates the ammonium perchlorate rendering the resultant 
composite non-explosive.

    NAR disagreed with ATF's determination that rocket motors 
containing APCP function by explosion because they deflagrate when 
ignited. As stated in its comment:

    It is widely acknowledged, and accepted by ATFE, that the speed 
of the burn front in materials that deflagrate is on the order of 
meters per second (in a detonation reaction the velocity is 
typically more than one kilometer per second), whereas the speed of 
the burn front in materials that burn is on the order of millimeters 
per second * * * the data relied upon by ATFE to date clearly 
reveals that when APCP is lit the burn front propagates on the order 
of `millimeters per second,' which under ATFE's own concept is 
indicative that APCP `burns' and does not `deflagrate.'


[[Page 46082]]


    NAR provided information to support its position that APCP burns 
and does not deflagrate. Based on that information, NAR concluded that 
``when ignited APCP in rocket motors typically burns at a rate of less 
than 25 millimeters per second. Accordingly, APCP in rocket motors does 
not deflagrate when ignited, and thus ATFE cannot classify APCP in 
rocket motors as an explosive.''
    Most commenters expressed views similar to that of NAR. The 
following excerpts reflect the commenters' position:

    If the ATF's interpretation were correct every rocket ever lit 
would explode on the pad every time without fail. Obviously it 
doesn't do that. Solid Rocket Propellant (APCP) is a tried and true, 
safe technology and that is why most of the worlds [sic] 
professional and hobby rockets use it as the fuel of choice. 
(Comment No. 88)
    APCP does not `function by explosion.' It functions by 
combustion * * * It is and has been obvious to the professionals in 
the field for several decades that APCP does not function by 
explosion. It does not belong, and never has belonged, on the 
BATFE's list of explosives. (Comment No. 834)
    `Explosion' entails either `deflagration' or `detonation'. The 
generally accepted definition for detonation is the propagation of 
the burn front at greater than 1 kilometer per second. Deflagration 
is defined by a burn front propagating on the order of meters per 
second. Ammonium Perchlorate Composite Propellant (APCP), the most 
common hobby rocketry propellant, generally burns at less than 25 
millimeters per second, putting it well below the definition of both 
deflagration and detonation. Thus, APCP burns; it does not explode. 
(Comment No. 854)
    Their [solid rocket motors] sole purpose is to propel a rocket 
by the ejection of hot, high pressure gases produced by the 
controlled combustion of one of more solid monolithic propellant 
grains in a high-pressure combustion chamber through an expansion 
controlling orifice device called a nozzle. The solid rocket motor/
propellant system is specifically designed not to explode, and 
therefore is not an explosive, nor is it an explosive device, and 
therefore should not be regulated by the BATFE. (Comment No. 895)
    Deflagration is characterized by a subsonic burn rate measured 
in meters per second; * * * APCP merely burns at the rate of 
millimeters per second. When confined, and should the casing rupture 
due to over-pressure, the remaining unburnt APCP typically self-
extinguishes. An individual could safely ignite one end of APCP, and 
it would burn much like a road flare! The inclusion of APCP on the 
list of regulated explosives has no logical basis * * * (Comment No. 
1071)
    [H]obby rocketry fuel, particularly APCP, is not an explosive, 
either by nature or by design. APCP neither detonates nor 
deflagrates. Detonation is characterized by a supersonic burn rate, 
measured in kilometers per second. The APCP used in hobby rockets 
cannot be made to detonate by use of a blasting cap. (Comment No. 
1164)
    ATF has never produced any technical studies, tests, or 
scientific papers to support the contention that APCP functions by 
explosion, or even that APCP does detonate or deflagrate. (Comment 
No. 1547)

Department Response
    Beginning in 2000, the issue of classifying APCP as an explosive 
material has been litigated in the United States District Court for the 
District of Columbia. See Tripoli Rocketry Ass'n v. Bureau of Alcohol, 
Tobacco, Firearms and Explosives, 337 F. Supp. 2d 1 (2004). After 
assessing technical and legal arguments presented by the Government and 
opposing rocketry associations, the district court held that ATF's 
decision that APCP is a deflagrating explosive was permissible. Tripoli 
Rocketry Association v. ATF Civil Action No. 00-273 (Mar. 19, 2004).
    As previously stated, in February 2006, the D.C. Circuit disagreed 
with the district court on this issue because in its view ATF had 
failed to provide a sufficiently thorough justification to support its 
classification with a specific, articulated standard for deflagration. 
Tripoli Rocketry Assoc., Inc. v. Bureau of Alcohol, Tobacco, Firearms 
and Explosives, 437 F. 3d 75 (D.C. Cir. 2006). However, the court 
declined to set aside the classification, and APCP thus remains on the 
``List of Explosive Materials'' that ATF is obligated to maintain. See 
Tripoli Rocketry Assoc., 437 F. 3d at 84. The case was remanded to the 
district court so that ATF may reconsider the matter and offer a 
coherent explanation for whatever conclusion it ultimately reaches. Id. 
Furthermore, the Court of Appeals offered clear guideposts as to the 
characteristics of a classification decision that would pass judicial 
review. See, e.g., id. at 81. Accordingly, ATF will utilize those 
guideposts in conducting testing of APCP as part of the reconsideration 
process. ATF will test and analyze APCP throughout the summer and fall 
of 2006 and submit reconsideration results upon completion.
2. Model Rockets/Rocket Motors Containing APCP Are ``Propellant 
Actuated Devices'' and, as Such, Are Exempt From ATF Regulation
    Propellant actuated devices (PADs) imported or distributed for 
their intended purposes are exempt from regulation pursuant to 27 CFR 
555.141(a)(8). The term ``propellant actuated device'' is defined in 
section 555.11 as ``[a]ny tool or special mechanized device or gas 
generator system which is actuated by a propellant or which releases 
and directs work through a propellant charge.'' In applying the 
regulatory definition, ATF has classified certain types of products as 
propellant actuated devices: Aircraft slide inflation cartridges, 
inflatable automobile occupant restraint systems, nail guns and diesel 
and jet engine starter cartridges.
    Approximately 300 commenters contended that model rocket motors 
meet the definition of a PAD and, as such, are exempt from ATF 
regulation. Some of the arguments raised by the commenters include:

    A rocket motor, fuel grains and rockets are comparable to 
exempted tools such as a nail gun with it's [sic] cartridges and 
nails. Like a nailgun, a rocket motor directs the gases generated by 
a propellant. Just as the nailgun and cartridge are used to propel a 
nail, the rocket motor and fuel grains are used to propel a rocket 
vehicle. (Comment No. 331)
    APCP burning inside a rocket motor casing produces hot, 
pressurized gasses which are directed out of the nozzle end of the 
motor. These rapidly exiting gasses cause the rocket to move in the 
opposite direction. No explosion occurs. Thus an APCP rocket motor 
is essentially a `propellant actuated device', a category of devices 
that is already explicitly exempted from regulation. (Comment No. 
734)
    Until the mid 1990s, the BATFE had exempted all APCP rocket 
motors, regardless of propellant weight, because APCP motors were 
considered to be propellant actuated devices, which were exempt from 
BATFE permits. APCP rocket motors have not changed since then, and 
Congress has not changed its definition of an explosive; therefore, 
the BATFE should never have started regulating APCP as an explosive 
in the first place, and should not start regulating APCP in the 
future. (Comment No. 982)

    NAR commented that although the Federal explosives law does not 
specifically include an exemption for PADs, the legislative history of 
the law clearly intended that such devices should be exempt by noting 
that the term ``explosives'' is not ``intended to include propellant 
actuated devices or propellant actuated industrial tools used for their 
intended purpose.'' According to the commenter:
    Congress must have intended that propellant actuated devices be 
exempted because their `primary or common purpose' is not to 
function by explosion but rather is to perform useful non-
destructive work. Rocket motors fit this concept precisely--their 
purpose is not destructive, but to perform useful work by propelling 
a rocket.

    NAR stated that a rocket motor serves but one function, i.e., to 
expel gases through its nozzle from a burning propellant for the 
purpose of generating the thrust necessary to launch the rocket. 
Based on its nature and function, the commenter contended that a 
rocket motor is a propellant actuated device that is exempt from 
regulation because ``it qualifies as either a `special mechanized

[[Page 46083]]

device,' or a `gas generator system,' if not both, and because a 
rocket motor is both `actuated by a propellant' and `releases and 
directs work' (i.e., thrust) `through a propellant charge' * * *''
Department Response
    ATF's position is that the term ``propellant actuated device'' does 
not include hobby rocket motors or rocket-motor reload kits containing 
APCP, black powder, or other similar low explosives. The definition of 
``propellant actuated device'' in 27 CFR 555.11 is ``[a]ny tool or 
special mechanized device or gas generator system which is actuated by 
a propellant or which releases and directs work through a propellant 
charge.'' To determine the common meanings of ``tool,'' ``special 
mechanized device,'' and ``gas generator system,'' it is useful to look 
to Merriam-Webster's Collegiate Dictionary (Tenth Edition, 1997) 
(Webster's). Webster's defines ``tool'' in pertinent part as: ``a 
handheld device that aids in accomplishing a task; the cutting or 
shaping part in a machine or machine tool; a machine for shaping 
metal.'' Webster's defines the word ``device'' as ``a piece of 
equipment or a mechanism designed to perform a special function.'' For 
a particular device to be a ``special mechanized device,'' Webster's 
appears to suggest, it would be necessary that it be both unique and of 
a mechanical nature. Webster's defines ``generator'' as ``an apparatus 
in which vapor or gas is formed'' and as ``a machine by which 
mechanical energy is changed into electrical energy.'' Further, 
Webster's defines ``system'' as ``a regularly interacting or 
interdependent group of items forming a unified whole.'' Thus, 
Webster's may be read to suggest that a ``gas generator system'' is 
properly defined as a group of interacting or interdependent mechanical 
and/or electrical components that generates gas.
    Based on the above definitions and conclusions, the Department 
believes that rocket motors, regardless of the amount of propellant 
contained therein, cannot be brought within the regulatory definition 
of propellant actuated device. Rocket motors are not ``tools,'' because 
they are neither handheld nor a complete device. Nor are they a metal-
shaping machine or a part thereof. Further, they cannot be considered 
to be a ``special mechanized device'' because, although clearly 
designed to serve a special purpose, they lack the necessary indicia of 
a mechanized device. Clearly, rocket motors are in no way reminiscent 
of a mechanism since they consist essentially only of propellant 
encased by a cardboard, plastic, or metallic cylinder. Though such 
motors may include a nozzle, retaining cap, delay grain and ejection 
charge, the rocket motor is little more than a propellant in a casing, 
incapable of performing its intended function until fully installed, 
along with an ignition system, within a rocket. Finally, because rocket 
motors have no interacting mechanical or electrical components, rocket 
motors cannot be deemed to be a gas generator system.
    For the reasons set forth above, the Department does not believe 
that rocket motors of any size should be classified as propellant 
actuated devices.
    On March 19, 2004, the United States District Court for the 
District of Columbia issued a memorandum opinion in Tripoli Rocketry 
Ass'n. 337 F. Supp. 2d 1. In its opinion, the court specifically 
addressed two letters issued by ATF, one dated April 20, 1994, and the 
other dated December 22, 2000, in which ATF had discussed the 
applicability of the propellant actuated device (``PAD'') exemption to 
rocket motors. See id. at 10-13. The 1994 letter gave the impression 
that ATF had exempted sport rocket motors containing 62.5 grams or less 
of propellant as propellant actuated devices (PADs) under 27 CFR 
555.141(a)(8). The 2000 letter more accurately and clearly stated that 
rocket motors did not meet the regulatory definition of a PAD, but that 
rocket motors with 62.5 grams or less of propellant were exempt from 
regulation, in light of the pre-existing ``small charge'' threshold 
that has historically been in place to exempt ``toy'' devices.
    The court unambiguously determined that ATF's 2000 letter was at 
variance with its 1994 letter. The court then concluded:

    Thus, before the ATF could [have] altered its earlier 
interpretation of the applicability of the PAD exemption, it was 
required to undertake notice-and-comment rulemaking as required by 
the [Administrative Procedure Act] and the [Organized Crime Control 
Act of 1970]. Because the ATF failed to do so, the Court concludes 
that its December 22, 2000 pronouncement regarding the applicability 
of the PAD exemption to sport model rockets was not in compliance 
with the OCCA and the APA.

    The court also explicitly set out the controlling 1994 ATF 
statement on the applicability of the PAD exemption in its Opinion:

    Of particular significance to the plaintiffs, is the statement 
in the April 20 Letter that

    [t]he exemption at 27 CFR Part 55, section 141(a)(8) includes 
propellant-actuated `devices.' The term `device' is interpreted to 
mean a contrivance manufactured for a specific purpose. Under this 
definition, a fully assembled rocket motor would be exempt. However, 
the propellant, prior to assembly, would not be exempt.

    Id. (emphasis added). The ATF went on to state that

[t]he AeroTech products which have been classified by the Department 
of Transportation as a flammable solid 4.1 or as explosives 1.4c, 
which are within the 62.5 grams limit contained in NFPA 1122 and 
conform to the requirements of model rocket motors set forth in 16 
CFR section 1500.85(a)(8)(ii), would meet ATF requirements for 
exemption under 27 CFR Part 55, section 141(a)(8).

    Id. Opinion at 15.
    ATF is currently regulating rocket motors in conformity with this 
ruling, exempting from regulation fully assembled rocket motors 
containing no more than 62.5 grams of propellant, and producing less 
than 80 newton-seconds (17.92 pound seconds) of total impulse with 
thrust duration not less than 0.050 seconds. This final rule does not 
materially change this state of affairs inasmuch as rocket motors 
containing 62.5 grams or less of propellant will continue to be exempt 
from regulation. However, the final rule does alter ATF's position in 
that a fully assembled rocket motor containing 62.5 grams or less of 
propellant, while still exempt from regulation, will not be classified 
as a propellant actuated device under this final rule.
3. The Proposed 62.5-Gram Exemption Threshold Is Arbitrary and Lacks a 
Reasoned Basis, Is Unreasonable and Unnecessarily Restrictive, and Is 
Inconsistent With Existing Weight Limits for Other Explosives
a. The Proposed 62.5-Gram Limit Is Arbitrary and Lacks a Reasoned Basis
    Approximately 120 comments objected to ATF's proposal to exempt 
from regulation rocket motors containing 62.5 grams or less of 
propellant, arguing that the proposed limit is arbitrary and that ATF 
did not explain the basis for the proposed limit. In its comment, NAR 
stated that the agency failed to present any scientific basis to 
support the proposed 62.5-gram limit, presented no factual data that 
demonstrates why the proposed amount represents a reasonable limit on 
possession of APCP, and offered no data or test results as to the 
relative properties of this quantity of APCP. To the extent that ATF 
based its 62.5-gram weight limitation on regulations enacted by the 
United States Department of Transportation (DOT) or the Consumer 
Product Safety Commission (CPSC), the commenter argued that ATF failed 
to explain in the NPRM why a weight limit

[[Page 46084]]

created by another Federal agency should be applied to ATF's explosives 
regulations. As stated by the commenter:

    What possible bearing does a DOT regulation imposing a weight 
limit on rocket motors in order to avoid hazardous synergistic 
effects with other hazardous materials, or a CPSC regulation 
protecting children from using rocket motors above a specific weight 
limit have on adults that possess and store rockets?

    Several commenters argued that the proposed 62.5-gram exemption is 
not based on Federal explosives law, noting that the law ``makes no 
exemptions of explosives based on weight except for black powder used 
in antique firearms and devices.'' (Comment No. 88)
    Other commenters raised concerns similar to those mentioned above:

    I'd also like to know from whence the threshold weight of 62.5 
grams was derived. This seems to be an arbitrary number since the 
behavior of 62.5 grams of APCP is not much different than that of 80 
grams. Does the Bureau have any scientific basis for this figure? 
(Comment No. 33)
    The 62.5 gram limit * * * has no scientific basis. The BATF has 
no tests or justification to show that this 62.5-gram limit (which 
is inherited from old shipping regulations) has any rational meaning 
in this situation. (Comment No. 325)
    The 62.5 gram limit is arbitrary * * * It has no technical basis 
as to what may or may not constitute a hazard to the public. 
(Comment No. 327)
    ATFE has focused on a 62.5 gram limit without showing the 
reasoning behind this number. ATFE has quoted (in the past) other 
agencies' use of a 62.5 gram unregulated limit, such as DOT and 
CPSC, for ATFE's unregulated limit. However, the absence of 
technical data does not support ATFE's reasoning. (Comment No. 864)
    ATFE has failed to present any scientific basis to support the 
62.5 gram limit. ATFE presents no factual data that demonstrates why 
this amount represents a reasonable limit on possession of this non-
explosive material. (Comment No. 974)
    The proposed change in exemptions for model rocket motors 
introduces an arbitrary limit of 62.5 grams per motor or reload kit. 
This limit has no basis in scientific data. The proposed rule 
implies that a single rocket motor of 62.5 grams of propellant is 
safe, but one with 62.6 grams is unsafe. Two motors with 62.5 grams 
of propellant are safe, but one with 62.6 grams is unsafe. One 
thousand motors with 62.5 grams of propellant is safe, but a single 
motor with 62.6 grams is unsafe. ATFE is obviously not concerned 
with safety issues related to the total amount of APCP stored since 
there is no limit on the total number of motors or reloads stored, 
as long as no single motor exceeds 62.5 grams. (Comment No. 1033)
    [A] total weight limit of APCP such as 40-50 pounds would 
address the individual who, without a permit, would be able to 
obtain as many motors containing 62.5 g or less as he wants. For 
example, the proposed arbitrary 62.5g limit would not stop somebody 
from having 1000 motors each containing 62.5 g for a total of 62.5 
kg (137.5 pounds!) of APCP. (Comment No. 1170) The ATFE gives no 
explanation or justification why 62.5 gram is an appropriate limit. 
I notice that my state (New Jersey) regulations do not require a 
permit for owning and storing up to 220 pounds (100,000 grams!) of 
rocket propellant; likewise no permit is required for owning and 
storing up to 50 pounds of black powder * * * ATF is basing the 62.5 
gram limit on the Consumer Product Safety Commission limit, which 
was set as a limit for children handling rocket motors. This limit 
for requiring permits is arbitrary and excessive and has not been 
demonstrated by the ATFE as being appropriate. (Comment No. 1230)
    The proposed limit of 62.5 grams is without substantiation. Why 
not higher? Why not lower? What is the technical reason that a 
higher limit would be problematical? * * * Rocket motors containing 
less than 62.5 grams of propellant comprise only a small part of the 
hobbyist rocket spectrum. (Comment No. 1626)
Department Response
    The Department has considered the comments and disagrees with the 
arguments suggesting the exemption from regulation should be higher 
than 62.5 grams.
    The origin of the 62.5-gram limit is found in regulations covering 
devices that are in the nature of toys. In 1981, ATF exempted from 
regulation, under 27 CFR 55.141(a)(7), ``[t]he importation and 
distribution of fireworks classified as Class C explosives and 
generally known as `common fireworks,' and other Class C explosives, as 
described by U.S. Department of Transportation regulations in 49 CFR 
173.100(p), (r), (t), (u) and (x).'' One of these DOT subsections, 49 
CFR 173.100(u), listed ``toy propellant devices and toy smoke devices'' 
as Class C explosives and described them as ``consist[ing] of small 
paper or composition tubes or containers containing a small charge of 
slow burning propellant powder or smoke producing powder.'' It also 
provided that ``these devices must be so designed that they will 
neither burst nor produce external flame on functioning * * *.'' In 
construing its regulation, ATF determined that 62.5 grams was an 
appropriate ceiling for what could be considered a ``small charge'' of 
propellant for these ``toy'' devices, a determination that was in 
keeping with guidelines published by the National Fire Protection 
Association and with regulations promulgated by the Consumer Product 
Safety Commission's (CPSC's) predecessor organization at the request of 
both the National Association of Rocketry and Estes Industries. CPSC 
applies its 62.5-gram exemption in such a manner as to prohibit the 
sale of some rocket motors to children, by regulating propellant weight 
and energy output. The Department believes it is appropriate, whenever 
possible, for Federal agencies to regulate commodities in a consistent 
manner.
    ATF is charged with safeguarding the public from dangers associated 
with explosives that are misused, criminally diverted or improperly 
stored. Public safety would no doubt be increased were ATF to apply 
regulatory controls to all sport rocket motors. However, ATF has 
rationally crafted an exemption from its explosives controls for sport 
rocket motors containing small amounts of explosive material and for 
other devices that are in the nature of toys (e.g., toy plastic or 
paper caps for toy pistols, trick matches, and trick noise makers). ATF 
has drawn the line for exemption at 62.5 grams of propellant because 
this amount represents a reasonable balance between ATF's goal of 
allocating its resources in the most efficient and effective manner and 
its goals of maintaining public safety. ATF believes that rockets 
utilizing motors containing 62.5 grams of propellant or less have a 
shorter range that is less likely to allow use as a weapon against a 
particular target without detection. In addition, rockets powered by 
motors containing no more than 62.5 grams of propellant have less power 
to cause significant damage when used against a target. As discussed in 
more detail below, the Department believes that rocket motors 
containing more than 62.5 grams of propellant pose a significant threat 
to public safety because they can be modified for use as weapons.
    ATF has conducted testing of the performance characteristics 
associated with rockets powered by motors containing 62.5 grams or less 
of APCP and of the performance characteristics associated with rockets 
powered by motors containing more than 62.5 grams of APCP. Although 
many of the results of this testing are classified, the testing showed 
clearly that to raise the exemption threshold beyond 62.5 grams would 
pose an increased threat to public safety and homeland security.
    In conclusion, the exemption of rocket motors containing 62.5 grams 
or less of propellant is consistent with ATF's congressional mandate to 
reduce the hazard arising from misuse and unsafe storage of explosive 
materials while not unduly or unnecessarily restricting or burdening 
law-abiding citizens in their lawful use of explosives.

[[Page 46085]]

b. The Proposed 62.5-Gram Limit Is Unreasonable and Unnecessarily 
Restrictive
    Approximately 190 comments maintained that the proposed exemption 
threshold is unreasonable and too restrictive for adult sport rocketry 
hobbyists and the commenters recommended that the threshold be 
increased. Several commenters proposed various upper limits for APCP in 
rocket motors, with one commenter suggesting that the exemption 
threshold be increased to 1,000 pounds. Following are excerpts from 
some of the comments:

    The 62.5 gram limit proposed by the ATF is based on the 
regulations of the consumer product safety commission * * * These 
regulations allow any motor less than 62.5 grams to be sold to the 
general public and to be used by unsupervised minors to fly toy 
rockets. However, large rocket motors cannot be purchased by the 
general public * * * It should be possible to allow responsible 
certified adults to buy and use the larger hobby rocket motors that 
are controlled by the certification process of the TRA and NAR 
without adding ATF regulation. (Comment No. 69)
    This proposal to exempt only rocket motors with no more than 
62.5 grams propellant is too strict. Rocket motors currently 
conforming to this requirement are only suitable for model (low-
power) rockets, which are considered by many adults to be 
essentially toys or entry level projects. Adults are interested in 
certifying in and taking on the many challenges of high-power 
rocketry, requiring higher total impulses, and thus, rocket motors 
with more propellant. (Comment No. 128)
    I urge you to reconsider the 62.5 gram hobby/amateur rocketry 
exemption limit as unreasonable and at the very least increase the 
limit for APCP to 7800 grams [17.2 pounds] with a motor diameter 
not-to-exceed 98mm, the size and amount of APCP necessary to make an 
'N' -class motor which is the highest used with any frequency by 
hobby and amateur rocketeers. (Comment No. 326)
    Within the Tripoli Rocketry Association, there are currently 
3072 individuals who are on record as being certified to use motors 
containing more than 62.5 grams of APCP * * * Increase the exemption 
to include motors containing up to 40 pounds of propellant. This is 
equivalent to the largest rocket motor that can be flown under NFPA, 
Tripoli Rocketry Association and National Association of Rocketry 
rules. (Comment No. 819)
    [T]he selection of 62.5 grams of APCP as the upper limit of what 
is permitted for unrestricted access * * * does not even come close 
to satisfying the needs of rocket hobbyists * * * the large majority 
of high-power rocket flyers would have their needs served if an 
exemption were granted to allow them to acquire and use rocket 
motors that contained up to 2,800 grams [6.17 pounds] of APCP 
without the need for a permit. (Comment No. 924)
Department Response
    APCP is an explosive material. By nature, explosive materials 
present unique safety hazards. Accordingly, they are regulated by law 
and very few categories of explosive materials are expressly exempted 
in any way from the law's requirements. Therefore, it cannot be said 
that ATF's regulatory stance with respect to rocket motors containing 
APCP or other explosive materials is unreasonable or unnecessary. 
Indeed, ATF's long-standing policy to exempt from regulation motors 
containing 62.5 grams or less of propellant reflects the agency's 
desire to accommodate the interests of rocketry hobbyists and to 
balance those interests with important public safety and homeland 
security concerns. As noted previously, in view of their inherent 
dangers, very few types of explosive materials are exempted in any way 
from the Federal explosives controls administered by ATF.
    Some commenters suggested that the exemption be extended to 40 
pounds, 17.2 pounds or 6.17 pounds. However, unrestricted commerce in 
motors containing APCP in these amounts would present a significant 
risk to public safety and homeland security. By regulating motors with 
more than 62.5 grams of propellant, terrorists, felons, and other 
prohibited persons will be prevented from gaining access to large 
motors that could pose an increased threat and that could be more 
readily adapted for terrorist or other criminal purposes. APCP can be 
used to make a very effective pipe bomb or other improvised explosive 
device that could be used for criminal or terrorist purposes. 
Furthermore, motors containing more than 62.5 grams of propellant can 
be used to power rockets capable of carrying large warheads containing 
either explosives or other noxious substances. Rockets powered by 
motors containing more than 62.5 grams of propellant can be directed at 
targets from a great distance, avoiding detection and apprehension of 
persons who would use them for criminal or terrorist purposes. 
Likewise, the proposed exemption is reasonable because it is comparable 
to other regulations and exemptions from other agencies addressing low 
explosives.
    A commenter points out that ``responsible certified adults'' should 
have access to larger hobby rocket motors for lawful purposes. Such 
certification refers to procedures required by rocketry associations, 
which are not imposed upon hobbyists who are not members of the 
specific associations and which have no application whatsoever to 
terrorists or criminals who might seek to gain access to large rocket 
motors for nefarious purposes. ATF does not believe that voluntary 
procedures are sufficient to safeguard public safety and homeland 
security. In order to responsibly implement the Federal explosives 
laws, the exemption established by this final rule will impose 
mandatory controls on all persons seeking to acquire rocket motors 
containing more than 62.5 grams of propellant and, in this regard, will 
among other things require that persons acquiring such large motors 
undergo a background check and obtain a Federal permit.
c. The Proposed 62.5-Gram Limit Is Inconsistent With Existing Weight 
Limits for Other Explosives
    In general, the regulations at 27 CFR 555.141(b) specify that the 
requirements of part 555 do not apply to commercially manufactured 
black powder in quantities not to exceed 50 pounds if the black powder 
is intended to be used solely for sporting, recreational, or cultural 
purposes in antique firearms.
    Approximately 30 commenters maintained that a similar exemption 
should be established for rocket motors containing APCP. In its 
comment, NAR stated the following:

    [N]otwithstanding ATFE's proposal to limit the exemption for 
rocket motors containing 62.5 grams or less of APCP * * * elsewhere 
in its explosives regulations ATFE establishes higher weight limits 
for arguably similar materials * * * ATFE permits an individual that 
possesses an antique firearm to purchase up to 50 pounds of black 
powder for use in that firearm without obtaining an ATFE-issued 
permit or storing the material in an ATFE-approved magazine * * * 
Those ATFE exemptions are not conditioned upon whether the bullet to 
be used in the antique firearm contains a specific quantity of black 
powder or whether, by design or intent, the individual will use one 
or more bullets at the same time in the antique firearm.

    Other commenters argued that APCP is less of a public safety hazard 
than black powder, due to its significantly lower burn rate and non-
explosive nature and, as such, should also be exempt from regulation. 
Some of their arguments are set forth below:

    [T]he best solution to regulating hobby rocket motors * * * 
would be a parallel to the exemption for black powder * * * while I 
would feel vastly safer having 50 pounds of APCP around the house 
than I would having 50 pounds of black powder (because APCP is 
inherently much safer to handle and store, compared to black 
powder), I think most educational and hobby and rocketeers don't 
need 50 pounds of propellant on hand * * * an exemption for a total 
weight limit of 20 pounds * * * of propellant would be equitable and 
reasonable. (Comment No. 325)

[[Page 46086]]

    My understanding is that gun enthusiasts are allowed to own and 
transport as much as 50 pounds of black powder. A similar rule for 
rocketry makes better sense. In fact, it is easy to argue that 
rocket users should be allowed to have more total mass than gun 
owners because the black powder used in guns is in powder form which 
is much more flammable than the pellet form used for rockets. 
(Comment No. 142)
    APCP is far less dangerous than Black Powder for which there 
exists an exemption of 50 lbs for antique firearms collectors. For 
rocketry, I believe an exemption on the order or [sic] 100-200 lbs 
would be very reasonable. This amount * * * would allow small 
business in the industry and the majority of the consumers to 
function unburdened and within very safe limits. (Comment No. 806)
    I understand that antique gun owners do not need a LEUP [low 
explosives user permit] to purchase, or are required to use a 
explosives magazine to store, up to 50 pounds of Black Powder 
propellant (which unlike APCP is very explosive). I have a hard time 
understanding why I can store 50 pounds of very explosive Black 
Powder in my closet if I'm an antique gun hobbyist but I can't store 
3 ounces of APCP non-explosive rocket propellant if I'm a rocketry 
hobbyist. I propose that rocket hobbyist[s] be given the same 50 
pound exemption * * * (Comment No. 1444)
    BATFE's proposal to impose a weight limit of 62.5 grams of APCP 
in rocket motors in order for the exemption of 27 CFR 
55.141(a)(7)(v) to apply is wholly inconsistent with existing weight 
limits for other explosives. It is well-established that loose black 
powder poses a significantly greater hazard than chunks of APCP, in 
its easier ignitability, rapid burn rate even when unconfined, and 
its sensitivity to static electricity. Yet, the regulations permit 
up to 50 pounds of black powder to be stored without restriction. 
(Comment No. 1537)
Department Response
    Congress determined that any person may purchase commercially 
manufactured black powder in quantities of 50 pounds or less, solely 
for sporting, recreational, or cultural purposes for use in antique 
firearms or antique devices without complying with the Federal 
explosives laws. Congress enacted this exemption as part of the 
original 1970 Act, although the exemption initially allowed the 
acquisition of only five pounds of black powder. In 1975 the exemption 
was increased to 50 pounds, again by the Congress. Accordingly, the 
commenters who refer to the black powder exemption as one created by 
ATF are in error.
    The comparison between the black powder exemption and the exemption 
for certain model rocket motors is a poor one. The Department's 
regulatory authority lies within the sound discretion of the Attorney 
General, consistent with the scope of his authority under 18 U.S.C. 
chapter 40 and the Administrative Procedure Act. It is being exercised 
in this final rule in the Attorney General's best efforts to give voice 
to Congress's intention that the Federal explosives controls be 
administered in such a way as to balance the need to prevent the misuse 
of explosives with the need for persons to have access to explosives 
for lawful purposes without undue regulation. It is significant that 
the exemption for black powder was increased in 1975 through 
legislation, rather than by regulation. Accordingly, the commenters' 
comparison of the proposed regulatory exemption to the statutory 
exemption for black powder is not persuasive and will not result in a 
change in the final rule.
4. Model Rocket Motors, Propellants, and Model Rockets Are Not a Threat 
to Homeland Security
    Approximately 45 commenters argued that model rocket motors and 
propellants, as well as model rockets, do not pose a threat to homeland 
security and should not be regulated by ATF. Other commenters 
(approximately 50) contended that the proposed regulation, if adopted, 
might actually jeopardize homeland security. The commenters argued that 
requiring sport rocketry hobbyists to obtain a Federal permit would 
result in an increase in the number of people with access to 
explosives. Following are excerpts from some of the comments:

    ATFE's concern with hobby rocket propellants such as Ammonium 
Perchlorate Composite Propellant is misplaced. It is simply not 
effective as an explosive for destructive purposes * * * Neither is 
it a credible terrorist threat as a missile against aircraft. Hobby 
rockets do not have guidance systems. The subtleties of the physics 
of dynamic stability, the vagaries of the wind, and available launch 
systems simply do not allow an unguided rocket to be aimed 
accurately against any target as small as an aircraft. Since 
terrorists can presumably acquire guided military rockets on the 
black market, the weaponization of hobby rocket motors is not 
credible. (Comment No. 91)
    Simple analysis of the attributes of sport rockets would make it 
abundantly clear that they are wholly unsuited to the tasks sought 
by terrorists:
     Sport rockets are unguided.
     Sport rockets have very limited range (only a few can 
reach 10,000 feet; most go no higher than 2,000 to 3,000 feet) and 
are highly susceptible to adverse weather conditions * * *
     Payloads are minimal at best * * *
     Rockets are not easy to setup and launch unobtrusively 
* * *
     Substantial modifications would be necessary to turn a 
sport rocket, even a large one, into a weapons delivery system * * * 
(Comment No. 269)
    Requiring rocket hobbyists to obtain an explosives permit is 
counterproductive to security, as it means that thousands of 
hobbyists who normally would never have a need for real explosives 
would now be permitted to obtain them. (Comment No. 301)
    Possession of an LEUP may encourage otherwise disinterested 
persons to obtain real explosives. I believe that an increased 
number of people having access to true explosives will have an 
adverse and significant impact on public safety. (Comment No. 740)
    A terrorist or other illicit user has many explosives available 
to them and wouldn't logically use amateur rocket propellants 
because they are relatively expensive (as compared to fertilizer and 
fuel oil, gasoline, gunpowder, lpg [liquefied petroleum gas], 
propane, etc.). (Comment No. 849)
    Given all of the readily available unregulated materials that 
are available to a terrorist, the BATFE's approach to the regulation 
of APCP is by this analysis a waste of taxpayer's time and money. If 
large numbers of APCP-based IEDs [improvised explosive devices] were 
being encountered by law enforcement, there might be a cause of 
action * * * IEDs are typically constructed of far more commonly 
available, less expensive, and unregulated materials * * * (Comment 
No. 1622)
Department Response
    The Department has considered the comments regarding the threat 
posed by sport rocket motors. For the following reasons, motors with 
more than 62.5 grams of propellant present very real security and 
public safety risks. Rocket motors containing large amounts of APCP can 
power rockets more than 30,000 feet into the air, frequently requiring 
high-power rocketry hobbyists to obtain waivers from the Federal 
Aviation Administration prior to a launch. These large rocket motors 
could also be used to power rockets carrying explosive or noxious 
warheads miles downrange into a fixed target. Commenters state that 
sport rockets are unguided, not easy to set up, and have a limited 
range. These are, in fact, some of the reasons ATF has maintained an 
exemption for small sport rockets with 62.5 grams or less of 
propellant. However, rockets using more than 62.5 grams of propellant 
are capable of stable flight over a fairly long range (one mile or 
greater). A willing, determined criminal or terrorist could assemble a 
weapon that utilizes a large rocket motor and launch such a device at a 
populated area, stadium, or transportation center in a matter of 
minutes from a distance sufficient to avoid detection. In addition, 
commercially available software can calculate launch parameters to fire 
a rocket horizontally or at an angled

[[Page 46087]]

trajectory. Rockets can be utilized to hit fixed targets, such as 
buildings, or be shot into populated areas with a reasonable degree of 
accuracy. Likewise, a rocket being used as a weapon could be launched 
from the bed of a truck, thereby making the launch site and any 
evidence of the launch mobile. The longer the range of the rocket, the 
greater the likelihood that the persons using them for criminal 
purposes would succeed in their attack and evade detection and 
apprehension. Finally, APCP could be used as an explosive filler in a 
pipe bomb or other improvised explosive device. For purposes of 
homeland security and the global fight against terrorism, all of these 
factors must be taken into account.
    The potential for terrorist or criminal misuse of rocket motors 
containing APCP or other propellant explosive is, of course, only one 
side of the equation when balancing homeland-security needs against the 
ability of law-abiding citizens to participate in hobby rocketry 
activities. The Department is fully aware that hobbyists have a 
legitimate and lawful desire to acquire explosive materials in pursuit 
of their recreational activities. In keeping with Congress's intention, 
ATF has maintained a long-standing exemption from the Federal 
explosives controls for hobby rocket motors containing 62.5 grams or 
less of low explosive materials. This exemption covers more than 90 
percent of all rocket motors that are sold to hobby rocketry 
enthusiasts and encompasses all rocket motors that can lawfully be 
possessed without a license or permit or complying with the other 
requirements of Federal law. Under this final rule, a Federal permit 
will be required for persons purchasing motors containing more than 
62.5 grams of propellant and reload kits designed to enable the 
assembly of motors containing more than 62.5 grams of propellant per 
motor. Again, establishing the exemption level at no more than 62.5 
grams of propellant mitigates the burden on rocketry enthusiasts while 
addressing the threat to public an