ARSA Legislative Update

06/25/03 00:00:00    

By Michael Mealling

To ARSA Members,

I want to bring you up to date on the effort to get an exemption for rocketry from ATFE oversight. We are at a point where I think it will be useful for you to know what we did the first three months of this effort starting in December 2002. It will help put the current situation in perspective. I can reveal this now, as it will not hurt our current and future efforts. I will also fill you in on Hatch-Kohl amendment and what it really means.

In late November 2002, I called Senator Enzi's office after learning about the Safe Explosives Act (SEA) imbedded inside the Homeland Security Act (HSA). I briefed the staffer on the situation and she in turn briefed Senator Enzi. The goal of any potential action was to get rocketry in general out from under the SEA as quickly as possible and certainly before May 24. I cannot emphasize this point enough that the goal was and still is to get rocketry in general out from under the SEA. The goal was never about the process of getting there. We first had to convince the Senator to get involved in what would probably turn out to be a political brawl. He agreed after several days of discussions.

After more discussions, we had two basic approaches. The first was to go directly to the White House and seek an executive order to exempt rocketry from the SEA. This could be done in a few weeks. I can tell that this was a very realistic option. I will leave it at that. The second option was to stick an exemption for rocketry on a technical corrections bill for the HSA. Senator Lott, who was going to be the new Senate majority leader, had planned to introduce this bill early in the January 2003 session of the Senate. This was a bill that would be signed by President Bush and we could be buried in this thick document. The bill would be on a fast track and probably signed into law in February.

Senator Enzi and his staff had a meeting and decided to go with the technical corrections bill. They rejected the White House route as they felt it would receive a low priority by the White House staffer assigned to carry it out. At the time, the White House staff was completely consumed with the details of planning for the invasion of Iraq. It was believed that the technical corrections bill would be a faster and more reliable method of getting to the goal.

As you may remember, Senator Lott made public remarks that cost him the leadership of the Senate. With that loss, came the loss of his priorities as well, including the technical corrections bill. You may recall a letter campaign to the new majority leader, Senator Frist, promoting a technical corrections bill and asking that it be moved up on the calendar. He did not see the importance of the bill and had scheduled it for consideration in the summer. Consequently, the option of riding the technical corrections bill had to be dropped.

Now, we were left with the option we had wanted the least, a stand-alone bill going for a rocketry exemption in the SEA. Everybody knew that this bill standing “naked” by itself would be hit and hit hard by the ATFE and those sympathetic to the ATFE. We knew it would be attacked from all directions and that the ATFE would try to put weight limits on it as well as try to kill it outright. Plans of action were laid out for the various eventualities such as killed in committee, a “wounded duck” coming out of committee, and so on. After several drafts of what would become S724, Senator Enzi introduced the bill to the Senate.

Now, lets skip a couple of months and get to more recent events. What happened in the Judiciary committee? Essentially, Senators Kohl and Hatch gave Senator Enzi what amounted to an ultimatum, “either accept what we give you or we will kill the bill in committee”. A contingency plan to minimize damage was implemented, which called for the general definition for non-detonable propellant to be taken out of the bill. If that could not be achieved, then the goal would be for a complete kill in the committee. Even with that change to the bill, it would have a lot of problems and would be damaging. Now, balanced against that damage were other political options if the bill came out of committee as a “wounded duck”. These options would permit the bill to get back on track towards it original goal. However, there was danger in pursuing those options. If the amendment passed by unanimous consent, it could be put it on the fast track for a full Senate vote by unanimous consent. That would close off a lot of potential political options to recover the bill. So, it was important that if the Hatch-Kohl amendment was passed by the committee that it not be by unanimous consent. There was also the choice for a kill on what would be the Hatch-Kohl amendment. It was a pretty loaded deck and the decision on what to attempt was Senator Enzi's. He decided to let it go forward to keep political options open. Senator Craig made sure it was not a unanimous vote.

I have no idea who actually wrote the Hatch-Kohl amendment. Besides, Senator Kohl, nobody seems ready to “belly up to the bar” on that one. I do know we had nothing to do with it. Various numbers had been floated around, but that was all we knew. I wish I could convey to you the frustration of Senator Enzi's staff. They knew nothing about what was really going on with the bill or even when it was going to be voted on in the committee.

Now, let's talk about the Hatch-Kohl amendment to S724. You can read an analysis of the amendment on the ARSA web page. It is important to note that this amendment was written with the approval and participation of the ATFE. That should tell you a lot. Let me point out three little goodies in the amendment. The first is that the exemption only applies if the APCP is used in model rocket motors. Nowhere are they defined in the bill. Guess who defines them? The ATFE. Will it be defined as “rocket motors made of cardboard tubes and clay nozzles” or “with an impulse not to exceed 160 Newton-seconds” or “single use applications only”. We don't know. The second goodie is the term “recreational model rockets”. Again, it is not defined in the bill and will be defined by the ATFE. Will that definition be “made of cardboard tubes, wood fins and plastic nosecones” or “not to exceed a lift off weight of 3 lbs” or “not to exceed a diameter of 3 inches and length of 48 inches”? We do not know. I would not expect the ATFE to write definitions for us that will be favorable to the future of rocketry.

The last goodie in the amendment is that the 0.9 lb of propellant applies to both non-detonable 1.3 APCP and detonable 1.1 APCP as the phrase “ammonium perchlorate composite propellant” is used with no distinction between classes. You will notice that the same phrase is used in the ATFE proposed rocketry regulation with no distinction in classes. So what is the big deal? Why is it important in one and not the other? The difference is that in one case the phrase is used in a federal regulation and in the other United States Code. The federal regulation can be changed at will by the ATFE, but only Congress can change the United States Code. If you do not make a distinction between classes of APCP in the US code and 1.1 class APCP 0.9 lb motors start floating around out there, the ATFE can only revoke the exemption by going to Congress and having the law changed, which is a time consuming process.

If you don't think Senator Kohl would have pointed this out on the floor of the Senate, you are kidding yourself. Of course, these things could be fixed with additional amendments on the floor, but something very interesting will happen if you do. Add definitions for “model rocket motor” and “recreational model rockets” and Senator Kohl will oppose it along with others. If you are successful in getting that added, and that is a very big if, you will need to fix the last item with wording defining what APCP is exempt. If you get by that hurdle, Senator Kohl and the ATFE have one last bombshell to drop on you and it is a beauty. If you hated the letter from the ATFE, I guarantee you are going absolutely detest what they are going to show on the floor of the Senate. I can assure you they will play this card when they feel it is necessary.

The amended S724 is an empty bag and political ploy to make you thing the Judiciary committee did something for you when in fact you got nothing. It is a political illusion. I know some people are satisfied with the amendment. If you are one of them, ask the ATFE to give it to you now. You don't need an act of Congress to get it. The ATFE approved it so they should have no problem taking that amendment and simply writing it into regulation along with their definitions.

In a few days, I will be sending you another email on where we go from here and why.

If you are receiving duplicate emails or what to be off the list, let me know.

This may be reposted.

John Wickman

ARSA