Tripoli Rocketry v. U.S. Bureau of Alcohol, Tobac., CIV.A.00-273 RBW.

• Decision Date: 19 March 2004
• Docket Number: No. CIV.A.00-273 RBW.,CIV.A.00-273 RBW.
• Citation: 337 F.Supp.2d 1
• Parties: TRIPOLI ROCKETRY ASSOCIATION, INC., et al., Plaintiffs, v. UNITED STATES BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

337 F.Supp.2d 1

TRIPOLI ROCKETRY ASSOCIATION, INC., et al., Plaintiffs, v. UNITED STATES BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, Defendant.

No. CIV.A.00-273 RBW.

United States District Court, District of Columbia.

March 19, 2004.

Martin G. Malsch, Egan & Associates, McLean, VA, for Plaintiffs.

U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

WALTON, District Judge.

This matter comes before the Court upon the parties' cross-motions for summary judgment, following the issuance of this Court's June 21, 2002 Memorandum Opinion.¹ In this case, the plaintiffs, Tripoli Rocketry Association, Inc. ("Tripoli") and the National Association of Rocketry ("NAR"), are challenging the defendant Bureau of Alcohol, Tobacco, Firearms and Explosives's ("ATF")² decisions: (1) to classify ammonium perchlorate composite propellant ("APCP") as an explosive (Count One of the First Amended Complaint); (2) to deny sport rocket motors an exemption for propellant actuated devices ("PADs") (Count Three of the First Amended Complaint); and (3) "to establish thresholds for [the] regulation of certain APCP rocket motors based upon their weight, design, or intended use without first affording the public an opportunity to comment upon such thresholds" (Counts Four and Five of the First Amended Complaint). Plaintiffs' Motion for Summary Judgment ("Pls.' Mot."), Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Summary Judgment ("Pls.' Mem.") at 7 (citing First Amended Complaint ("Am.Compl.") at ¶¶ 38-41, 45-47, 48-53). Upon consideration of the parties' submissions and for the following reasons, the Court will grant summary judgment to the defendant on the issue of whether APCP is an explosive, will grant summary judgment to the plaintiff on the validity of the ATF's pronouncement that sport rocket motors are not PADs because this pronouncement fails to comply with notice-and-comment rulemaking, and will stay a ruling on counts four and five pending the completion of previously initiated notice-and-comment rulemaking.

I. Standard of Review

The plaintiffs' claims were brought under the Administrative Procedure Act ("APA") and therefore 5 U.S.C. § 706 contains the applicable standard of review. Section 706 states:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall —

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

II. Legal Analysis

(A) Is the ATF's Classification of APCP as an Explosive under the Organized Crime Control Act Valid?

The ATF is charged with enforcing Title XI of the Organized Crime Control Act of 1970 ("OCCA" or the "Act"), which regulates the importation, manufacture, distribution, and storage of explosive materials. See 18 U.S.C. § 841 et seq. Section 841(d) of Title 18 of the United States Code defines "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.³

18 U.S.C. § 841(d) (emphasis added). The OCCA also states that the "Attorney General shall publish and revise at least annually in the Federal Register a list of these and any additional explosives which he determines to be within the coverage of this chapter." Id. On January 15, 1971, pursuant to this subsection, APCP was placed on the first List of Explosive Materials, see 36 Fed.Reg. 675 (Jan. 15, 1971), and has remained on the list ever since, see 67 Fed.Reg. 20864 (Apr. 26, 2002). The plaintiffs brought suit following receipt of a December 22, 2000 letter from the ATF to the plaintiffs' counsel reiterating the agency's position that the:

(i) ATF had properly classified APCP as an explosive; (ii) ATF had properly included APCP on its annual explosives list and such inclusion did not require notice and comment rulemaking; (iii) ATF cannot classify sports rocket motors as a propellant actuated device, and thus sports rockets motors are not exempt from ATF regulation; and (iv) ATF properly decided to exempt sports rocket motors containing 62.5 grams (or less) of propellant.

Tripoli Rocketry Assoc. v. United States Bureau of Alcohol, Tobacco and Firearms, Civ. A. No. 00-273, at 5 (D.D.C. June 21, 2002) (citing Am. Compl. ¶ 34); see Administrative Record ("A.R.") 1 (December 22, 2000 letter from the ATF's Assistant Director of Firearms, Explosives and Arson to plaintiffs' counsel).

The ATF takes the position that the statutory definition of explosives "makes it clear that an item can `function by explosion' either by detonating or by deflagrating." Defendant's Renewed Motion for Summary Judgment ("Def's.Mot."), Defendant's Memorandum of Points and Authorities in Support of Renewed Motion for Summary Judgment ("Def's.Mem.") at 9-10; see A.R. 1 at 2. The defendant asserts that this is because Congress specifically included items in § 841(d)'s definition of "explosives" that are only designed to deflagrate, rather than detonate, such as black powder, pellet powder, safety fuses, and igniters. Def.'s Mem. at 9-10; A.R. 1 at 3-4. Therefore, the ATF concludes that this Court should "give effect, as did ATF, to Congress's unambiguously expressed intention that deflagrating materials be classified as explosives" because "even though the statutory definition of explosives found at 18 U.S.C. § 841(d) does not specifically refer to APCP in particular as an `explosive' the definition renders it beyond question that deflagrating propellants such as APCP should be classified as explosives." Def.'s Mem. at 11 (citing Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The plaintiffs, on the other hand, take the position that Congress did not mean to include a "chemical compound mixture, or device" that deflagrates when ignited in § 841(d)'s definition of an "explosive[,]" Pls.' Mem. at 9-14, and even if a "chemical compound mixture, or device" that deflagrates is included within this definition, APCP merely burns when ignited, rather than deflagrating, id. at 15-18.

Applying the familiar Chevron test, the Court must first determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." 467 U.S. at 842-43. If, however, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. In Barnhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002), the Supreme Court recently summarized the Chevron inquiry by stating that a court must decide "(1) whether the statute unambiguously forbids the Agency's interpretation, and, if not, (2) whether the interpretation, for other reasons, exceeds the bounds of the permissible." 535 U.S. at 218, 122 S.Ct. 1265 (citing Chevron, 467 U.S. at 843, 104 S.Ct. 2778; United States v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). And, in making such an assessment, "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer [.]" Chevron, 467 U.S. at 844, 104 S.Ct. 2778. This is because "[c]ourts defer to agency interpretations in large part because Congress has chosen to delegate to the agency decisionmaking in the field." Amerada Hess Pipeline Corp. v. FERC, 117 F.3d 596, 601 (D.C.Cir.1997) (citing Chevron, 467 U.S. at 865-66, 104 S.Ct. 2778); see Sec'y of Labor, Mine Safety and Health Admin. v. Excel Mining, LLC, 334 F.3d 1, 7 (D.C.Cir.2003); Paralyzed Veterans of Am. v. D.C. Arena LP, 117 F.3d 579, 585 (D.C.Cir.1997). The Chevron Court explained that

the principle of deference to administrative interpretations[] has been consistently followed by this Court whenever a decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations.

467 U.S. at 844, 104 S.Ct. 2778 (internal quotation omitted). Thus, if the agency's "choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, [a court] should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." Id. at 845, 104 S.Ct. 2778.

However, in Mead, the Supreme Court noted that "[t]he fair measure of deference to an agency administering its own statute has been understood to vary with circumstances[.]" 533 U.S. at 228, 121 S.Ct. 2164. The Mead Court recognized that even...