We write to offer the views of the Department of Justice on S.724, a bill “to exempt certain rocket propellants” and other rocketry-related explosive materials from the controls contained in Federal explosives laws.  This bill, which seeks to afford high-power sport rocketry enthusiasts the ability to pursue their hobby without regard to the restrictions imposed by law on the acquisition and disposition of explosive materials, is clearly well intentioned.  Unfortunately, however, if it becomes law, S. 724 will harm homeland security be providing terrorists and other criminals with unrestricted access to rocket motors containing large amounts of explosive material, as well as to igniters and fuses that can be used to initiate explosive devices.  The Department believes this to be an unnecessary and unacceptable risk in the current security environment, particularly in view of the fact that significant action (in the form of a regulatory exemption) has already been taken by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) to accommodate rocketry hobbyists. Accordingly, we are strongly opposed to S. 724.

 

            As you likely are aware, the Federal explosives laws impose certain controls on the manufacture, distribution, and storage of explosives.  Under these laws, which are codified at 18 U.S.C.  841, et. seq., ATF is required to publish an annual list of explosives deemed to fall within the law’s coverage. Since publication of the first such list in 1971, ammonium perchlorate composite propellant (“ACPC”), the propellant used in may high-power hobby rocket motors (and, for that manner, in the boosters for the Space Shuttle) has been appropriately classified as an explosive in accordance with the law’s definition of “explosives”.  That ACPC has been correctly classified as an explosive is underscored not only by the generally-accepted scientific understanding of the nature of propellant explosives but also by the fact that APCP is susceptible to use in improvised bombs¹.  Moreover, it bears noting that hobby rocket motors containing large amounts of APCP can power extremely large rockets more than 20,000 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 potentially be adapted by terrorists for use in surface-to-air missiles capable of intercepting commercial and military airplanes at cruise altitude and for use in “light anti-tank” weapons capable of hitting targets from a range of nearly five miles.

 

            S. 724 purports to provide an all-encompassing, statutory exemption from the Federal explosives controls for only those rocket motors, fuses, and igniters, that are intended to be used in rockets that do not carry an explosive payload.  However, the bill provides no mechanism, nor can the Department conceive of a mechanism, to ensure that only rocketry hobbyists or others with lawful “intentions” will be able to avail themselves of the exemption.  Therefore, the unfortunate fact is that, if this bill becomes law, it will become very easy for terrorists or other criminals to acquire large rocket motors, fuses, igniters and other materials for use in bombs and/or for use in rockets that have been designed or redesigned as weapons.  Additionally, when these explosive materials are used in a bombing or other terrorist or criminal activity, a lack of required records will make it impossible for law-enforcement authorities to trace the materials to their most recent legal purchaser, thus hindering efforts to bring perpetrators to justice and to prevent additional bombings, rocket attacks, or other incidents.

 

            The potential for terrorist and/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.  We are fully aware that hobbyists have a legitimate and lawful desire to acquire explosive materials in pursuit of their recreational activities.  We also understand the role that hobby rocketry plays in inspiring our nation’s youth to pursue and further their education in such important fields as physics and mathematics.  Accordingly, and in keeping with congress’s intention that the Federal explosives laws not be administered in such a way as to place upon law-abiding citizens any restrictions that are not reasonably necessary to protect against the misuse and unsafe or insecure storage of explosives, ATF has maintained a longstanding policy exemption from the Federal explosives controls for hobby rocket motors containing up to 62.5 grams of propellant explosive.  This exemption covers more than ninety percent of all rocket motors that are sold to hobby rocketry enthusiasts and encompasses all rocket motors that can lawfully be possessed, pursuant to regulations promulgated by the Consumer Product Safety Commission, by children under eighteen years of age.

 

            In view of the ATF’s policy exemption, as described above, hobbyists acquiring rocket motors that contain up to 62.5 grams of propellant explosive are not required to obtain a Federal permit or to store their motors in accordance with Federal regulations.  This will not change under the expanded permitting controls that were set forth in the Safe Explosives Act of 2002 and that took effect on May 24, 2003.  Under these newly expanded controls, a person wishing to purchase explosive materials (including rocket motors containing more than 62.5 grams of propellant explosive) will be required to undergo a background check and acquire a Federal permit, even if his acquisition of explosives will be within his own state of residence.²

               

In formulating the 62.5-gram exemption, ATF determined that this threshold afforded a reasonable balance between the need to prevent terrorists and other criminals from acquiring explosives and the legitimate desire of hobbyists to have easy access to explosives for lawful use.  ATF is currently involved in a rulemaking that would establish the 62.5-gram threshold by regulation.  As part of the rulemaking, we will consider comments on what the appropriate exemption threshold should be.  We believe that, by establishing the threshold through rulemaking, we will be better able to balance the interests of hobby rocketry enthusiasts with the important security concerns at stake.  In contrast, S. 724 would establish a statutory exemption that would afford any and all persons (including terrorists and other felons) unrestricted untraceable access to even the largest explosive rocket motors.

 

            If we can be of additional help to you or other members of the Committee on the Judiciary as you consider S.724, please do not hesitate to call upon us.  Thank you for your attention to this matter.  The Office of Management and Budget has advised that there is no objection from the standpoint of the Administration’s program to the presentation of this report.

 

                                                            Sincerely,

 

 

                                                            William E. Moschella

                                                            Assistant Attorney General

                                                            U.S. Department of Justice

                                                            Office of Legislative Affairs