           Department of Transportation Authority to Exempt
            Canadian Truck Drivers From Criminal Liability
                     for Transporting Explosives
The Department of Transportation possesses the authority to issue a regulation that, under section
  845(a)(1) of title 18, would exempt Canadian truck drivers from criminal liability under section
  842(i) of that title.
The Department of Transportation, however, has not issued such a regulation, and therefore section
  842(i) liability would attach to a Canadian truck driver transporting explosives in the United States.

                                                                                    February 6, 2003

                   MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                         DEPARTMENT OF TRANSPORTATION
                                     AND
                           THE ACTING CHIEF COUNSEL
              BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES

    We have been asked by the Department of Transportation (“DoT”) and the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) to resolve a
dispute regarding section 1123(b) of the Safe Explosives Act, Pub. L. No. 107-
296, 116 Stat. 2135, 2284 (2002) (the “Act”), which became effective January 24,
2003.1 In particular, we have been asked to address the application of this provi-
sion to Canadian truck drivers who “ship or transport” or “receive or possess”
explosives in interstate or foreign commerce. Because of the exceedingly short
time period we were given to provide our advice, we have limited our discussion
to this particular fact situation.
    Section 1123(b) of the Act amended section 842(i) of title 18, United States
Code, by adding several categories to the list of prohibited persons who may not
lawfully “ship or transport any explosive in interstate or foreign commerce” or
“receive or possess any explosive which has been shipped or transported in
interstate or foreign commerce.” The existing law covered any person who was a
felon, a fugitive from justice, an unlawful user or addict of any controlled
substance, or had been “adjudicated as a mental defective.” 18 U.S.C. § 842(i)
(2000). The Act added three new categories of persons: aliens (excluding aliens
lawfully admitted for permanent residence, as defined by section 101(a)(20) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(20), and four narrow cate-
gories of aliens present in the United States for specific purposes), persons
dishonorably discharged from the armed forces, and former citizens of the United
States who have renounced their citizenship. Pub. L. No. 107-296, § 1123(b), 116
Stat. at 2284. Section 1126 of the Act authorizes the Attorney General to grant

   1
       See Homeland Security Act of 2002, Pub. L. No. 107-296, § 4, 116 Stat. 2135, 2142 (2002).




                                                  38
          DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability


relief from this prohibition if he “determines that the circumstances regarding the
applicability of section 842(i), and the applicant’s record and reputation, are such
that the applicant will not be likely to act in a manner dangerous to public safety
and that the granting of such relief is not contrary to the public interest.” 116 Stat.
at 2285 (to be codified at 18 U.S.C. § 845(b)(2)).
    Section 845(a)(1) of title 18 provides exemptions to some of the criminal pro-
hibitions contained in chapter 40 of title 18, including the prohibition contained in
section 842(i). The relevant exemption here states that the provisions of section
842(i) “shall not apply to . . . any aspect of the transportation of explosive
materials via railroad, water, highway, or air which are regulated by the United
States Department of Transportation and agencies thereof, and which pertain to
safety.” 18 U.S.C. § 845(a)(1).
    The question presented for resolution by our Office is whether the prohibition
in section 842(i) on “alien[s]” “ship[ping] or transport[ing]” or “receiv[ing] or
possess[ing]” explosives forbids Canadian truck drivers from driving explosives
into the United States. ATF posits that the answer to that question is “yes,” and
that the sole mechanism for these truckers to obtain relief from this prohibition is
to apply to ATF for “relief from disabilities” under section 845(b), as amended.
DoT, by contrast, argues that the exemption contained in section 845(a)(1)
provides an exemption from criminal liability for the Canadian truck drivers.
    For the reasons set forth below, we conclude that DoT possesses the authority
to issue a regulation that, under section 845(a)(1), would exempt Canadian truck
drivers from criminal liability under section 842(i). We further conclude, however,
that DoT has not issued such a regulation and therefore section 842(i) liability
would attach to a Canadian truck driver transporting explosives in the United
States.

                                                      I.

   As noted above, section 845(a) of title 18 provides exemptions to some of the
criminal prohibitions contained in chapter 40 of title 18, including the prohibition
contained in section 842(i).2 The relevant exemption states that the provisions of
section 842(i) “shall not apply to . . . any aspect of the transportation of explosive
materials via railroad, water, highway, or air which are regulated by the United
States Department of Transportation and agencies thereof, and which pertain to
safety.” 18 U.S.C. § 845(a)(1) (2000). To decide whether section 845(a)(1)
provides an exemption from criminal liability for the Canadian truck drivers, we



   2
     Section 845(a)(1) does not apply to the criminal offenses statutorily excepted from the exemption.
See 18 U.S.C. § 845(a)(1) (“Except in the case of subsection (l), (m), (n), or (o) of section 842 and
subsections (d), (e), (f), (g), (h), and (i) of section 844 of this title, [chapter 40] shall not apply to . . .
any aspect of the transportation . . . .”).




                                                      39
                     Opinions of the Office of Legal Counsel in Volume 27


first define the reach of the exemption and then discuss whether DoT has issued a
regulation that falls within section 845(a)(1).

                                                 A.

   The precise contours of the exemption in section 845(a)(1) are not easy to
discern from the statutory text. The exemption uses two plural verbs—“are” and
“pertain”—stating that the criminal provisions of chapter 40 “shall not apply to . . .
any aspect of the transportation of explosive materials . . . which are regulated by”
DoT “and which pertain to safety.” Plural verbs, of course, must correspond to a
plural subject. And the only possible plural subject in section 845(a)(1) is the noun
“materials.”3 A literal reading of this language would therefore lead to the
conclusion that the exemption is triggered by any DoT regulation of the explosive
materials in question. And, indeed, two courts have read the exemption this way.
See United States v. Illingworth, 489 F.2d 264, 265 (10th Cir. 1973) (“The
exception refers to materials which are regulated by the Department”); id. (“the
dynamite which Illingworth carried with him on the planes was . . . regulated”);
United States v. Petrykievicz, 809 F. Supp. 794, 797 (W.D. Wash. 1992) (“A
proper grammatical reading of the exception results in an interpretation that
provides that if the explosive materials transported via air ‘are’ regulated, the
exception applies.”); id. at 799 (“Section 845 of Title 18 excludes the application
of Chapter 40 of Title 18 if the explosive materials being transported are regulated
by the Department of Transportation.”) (emphasis added).
   Yet, despite the undeniable force of the argument that this is the most grammat-
ically correct reading of the exemption, there are also powerful reasons to question
this reading of section 845(a)(1). First, it is possible that construing section
845(a)(1) as outlined above would render many of the substantive criminal
prohibitions of chapter 40 meaningless. As the Western District of Washington has
pointed out, this reading could “result[] in an interpretation that provides that if the
explosive materials transported . . . ‘are’ regulated [by DoT], the exception
applies.” 809 F. Supp. at 797. But, DoT, of course, regulates all, or nearly all,
explosives in some fashion, for example, by regulating the explosives’ “labeling,
packaging, mode of transportation, placarding and shipping papers.” Id.; accord
DoT Submission, Tab 1, at 2–3. Therefore, to construe section 845(a)(1) to exempt
an individual from criminal liability for transporting explosives simply because the
explosives themselves were in some way regulated by DoT would be to “eviscer-
ate[]” the criminal provisions of chapter 40. United States v. Fiorillo, 186 F.3d

    3
      DoT suggests that “pertain” could correspond to “agencies.” DoT Submission, Tab 3, at 5. But
this construction does not account for the fact that the full text of the amendment reads “and which
pertain to safety.” The phrase “the United States Department of Transportation and agencies thereof,
and which pertain to safety” simply does not express the idea that the agencies must pertain to safety.
Moreover, it is unclear that such a construction would have limiting effect because we are uncertain
whether the jurisdiction of any DoT agency could be characterized as unrelated to safety.




                                                  40
         DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability


1136, 1153 (9th Cir. 1999). Such a construction would mean, for example, that an
individual who transported stolen explosives, knowing they were stolen, in
violation of section 842(h) of title 18, would not be liable if DoT had a regulation
specifying how explosives should be stored. Cf. id. at 1153. Under such a reading,
even a single DoT regulation concerning explosives would mean that no one
would ever be liable for transporting explosives in violation of chapter 40.
    Second, construing section 845(a)(1) as outlined above could lead to the oppo-
site, yet equally absurd, conclusion that the exemption from criminal liability has
no meaning. In the Antiterrorism and Effective Death Penalty Act of 1996,
Congress amended section 845(a)(1) to add the phrase “and which pertain to
safety.” See Pub. L. No. 104-132, § 605(1)(B), 110 Stat. 1214, 1290 (1996). Read
literally, therefore, the exemption applies only to any “aspect of the transportation
of explosive materials . . . [(a)] which are regulated by the Department of Trans-
portation . . . and [(b)] which pertain to safety.” While it might make sense to refer
to “explosive materials” that “are” regulated by DoT, it is not at all clear that there
is any content to the category of “explosive materials” “which pertain to safety.”
Moreover, because the exemption is phrased conjunctively, the exemption would
apply only if the materials are both regulated by DoT and pertain to safety.
Because the latter category is either empty or vanishingly small, to read section
845(a)(1) according to its literal terms is to drain the 1996 amendment to that
section of virtually all meaning.
    We cannot believe that Congress intended either of these absurd results.4 See
United States v. X-Citement Video, Inc., 513 U.S. 64, 70–71 (1994). Instead, we
believe that the incoherence of the exemption as written is likely the result of a
mere scrivener’s error. In this case, we believe the error was Congress’s failure to
include an “s” at the end of the word “aspect.”5 Thus, we believe that the exemp-

   4
      It is worth noting that the two reported decisions that have construed section 845(a)(1) such that
the operative provision is DoT’s regulation of the explosive materials were decided before the 1996
amendment to the statute. These courts were therefore not faced with the construction of the “and
which pertain to safety” language. See United States v. Illingworth, 489 F.2d 264, 265 (10th Cir. 1973);
United States v. Petrykievicz, 809 F. Supp. 794, 797 (W.D. Wash. 1992).
    5
      Alternatively, the statutory confusion could be the result of a “conjugator’s error”—that is, the
draftsman of the original exemption may have incorrectly conjugated the verb “to be,” choosing the
plural form “are” rather than the singular “is” to correspond to the singular subject “aspect.” Indeed,
ATF’s regulations implementing this section have interpreted the statutory provision this way:
        Except for the [prohibitions relating to unmarked plastic explosives and reporting of
        plastic explosives], this part does not apply to:
            (1) Any aspect of the transportation of explosive materials via railroad, water,
            highway, or air which is regulated by the U.S. Department of Transportation and
            its agencies, and which pertains to safety.
27 C.F.R. § 55.141(a) (2002) (emphasis added). We recognize that this reading implies that Congress
perpetuated its original error when it added the phrase “and which pertain to safety.” When Congress
amended the statute in 1996, it may simply have followed the verb form chosen by the original
draftsman. We note in this regard that the House version of the bill contained the word “pertains,” H.R.
Rep. No. 104-383, at 19 (1995) (setting forth House version), whereas the version adopted at




                                                  41
                     Opinions of the Office of Legal Counsel in Volume 27


tion is more properly read to say that certain provisions of chapter 40, including
section 842(i), as amended, “shall not apply to . . . any aspects of the transporta-
tion of explosive materials via railroad, water, highway, or air which are regulated
by the United States Department of Transportation and agencies thereof, and
which pertain to safety.”
    Read this way, the exemption focuses on the aspects of the transportation of
explosive materials that DoT regulates rather than on the materials themselves.
This is essentially the reading of section 845(a)(1) adopted by the court in United
States v. Scharstein, 531 F. Supp. 460, 466 (E.D. Ky. 1982) (“The key word in
construing the meaning of § 845 is the word ‘aspect.’”). In addition, the only
legislative history on the exemption supports the construction of the statute that
focuses on the “aspects” of transportation, rather than on the “materials” transport-
ed. See H.R. Rep. No. 91-1549, at 4047 (1970) (“This chapter is not meant to
affect aspects of the transportation of explosive materials regulated by the
Department of Transportation.”) (emphasis added). This reading is further
supported by the 1996 amendment, which—because there is no meaning to a
category of “explosive materials . . . which pertain to safety”—makes clear that
Congress was referring to the aspects of transportation that are regulated, not the
explosive materials themselves. Finally, although the affected agencies did not
address this issue specifically in their submissions to this Office, they seem to
agree that the focus of the section 845(a)(1) exemption is on the “aspects” of
transportation that are regulated. See DoT Submission, Tab 1, at 5 (“It is these
‘aspects’ of transportation in commerce that [Research and Special Programs
Administration] believes are excepted from the prohibitions in 18 U.S.C.
§ 842(a)–(k).”); id., Tab 2, at 4 (“From a legal point of view, the critical issue is
the meaning of the term “any aspect” in § 845(a)”); ATF Submission at 4 (“the
exception in section 845(a)(1) applies only to those aspects of transportation
relating to safety”); id. at 13 (“Section 845(a)(1) refers to any aspect of transporta-
tion ‘regulated by’ DoT ‘which pertain to safety.’”).
    Thus, we believe that section 845(a)(1) is best read to say that certain provi-
sions of chapter 40, including section 842(i), as amended, “shall not apply to . . .
any aspects of the transportation of explosive materials via railroad, water,
highway, or air which are regulated by the United States Department of Transpor-
tation and agencies thereof, and which pertain to safety.” Accordingly, the
exemption is triggered only when (1) DoT has regulated relevant “aspects of the
transportation of explosive materials,” and when (2) those regulated aspects
“pertain to safety.” We address these requirements in reverse order.




conference contained the word “pertain,” H.R. Conf. Rep. No. 104-518, at 79 (1996). Whether the error
is a “scrivener’s” or a “conjugator’s” error does not affect our analysis.




                                                 42
        DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability


                                          B.

   The phrase “and which pertain to safety” was added to section 845(a)(1) by
section 605(1)(B) of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat 1214, 1290 (1996). ATF argues that “safety” within
section 845(a)(1) is limited to safety in the sense of preventing accidents. See ATF
Submission at 11 (“DoT statutes are designed to regulate the safe transportation of
hazardous materials, such as explosives, while in transit and in commerce. These
statutes . . . primarily supplement State regulatory schemes to promote highway
safety. This is reflected in statutes requiring drivers to be knowledgeable and
qualified to operate motor vehicles, testing, certification, and so forth.”); id. (the
risk DoT regulates is the “general safety and fitness of the operator”). DoT
contends that “safety” should be read to include security, i.e., national security
concerns. See DoT Submission, Tab 1, at 1.
   We believe that the term “safety” as it is used in section 845(a)(1) includes
security concerns, including the risk to national security posed by drivers trans-
porting explosives. DoT’s jurisdiction extends to both safety and security.
Congress has authorized the Secretary of Transportation to “prescribe regulations
for the safe transportation, including security, of hazardous material in intrastate,
interstate, and foreign commerce.” 49 U.S.C. § 5103(b) (emphasis added). The
clause “including security” was added by section 1711(a) of the Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2319 (2002). The use
of the word “including” indicates that Congress believed security is an element of
safety.
   Moreover, Congress has already assigned DoT a role in assessing the national
security risk posed by individuals transporting hazardous materials. In section
1012 of the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 271, 397 (2001),
Congress amended portions of the statutes governing the issuance of licenses for
those who transport hazardous materials by motor vehicles. Specifically, Congress
prohibited states from issuing commercial driver’s licenses for transporting
hazardous materials (“hazmat” licenses) “unless the Secretary of Transportation
has first determined . . . that the individual does not pose a security risk warranting
denial of the license.” 49 U.S.C. § 5103a(a)(1) (Supp. I 2002) (emphasis added).
Under this provision, the Attorney General conducts the background check, id.
§ 5103a(c), but the Secretary of Transportation makes the determination regarding
the security risk, id. § 5103a(a)(1). Although DoT, through the Transportation
Security Administration (“TSA”), has not yet implemented this statutory scheme,
see DoT Submission, Tab 6, at 1, the grant of authority from Congress is powerful
evidence that Congress believes DoT has a role to play with respect to assessing
risks to national security. Accordingly, we believe that a DoT regulation address-
ing the security aspects of the transportation of explosive materials, including an
assessment of the risk to national security posed by drivers, could be one “which
pertain[s] to safety” within the meaning of section 845(a)(1).



                                          43
                    Opinions of the Office of Legal Counsel in Volume 27


                                                C.

    We next address what is meant by the clause “aspect[s] of the transportation of
explosive materials . . . which are regulated by the United States Department of
Transportation.” This clause raises two interpretive questions: What is meant by
“aspect[s] of transportation”?; and what is meant by “which are regulated by”
DoT? We again address these questions in reverse order.
    Section 845(a)(1) states that the provisions of chapter 40 shall not apply to “any
aspect[s] of the transportation of explosive materials . . . which are regulated by”
DoT “and which pertain to safety.” This statutory language admits of two possible
readings. The first, and we believe the most natural, reading is to say that the
provisions of chapter 40 do not apply to “any aspect[s] of the transportation of
explosive materials which are” in fact, presently being “regulated by” DoT. That
is, for the exemption to apply, DoT must have issued regulations addressing the
relevant “aspect[s]” of transportation. But there is another possible reading. The
exemption might be read to apply to “any aspect[s]” of the safe transportation of
explosive materials which are within DoT’s regulatory jurisdiction, even if DoT
has not actually exercised its jurisdiction by regulating in the area. Thus, “as-
pect[s] . . . which are regulated” could be read to mean “aspect[s] which are within
DoT’s regulatory competence.” As discussed previously, we believe that the safe
and secure transportation of explosive materials lies within DoT’s regulatory
competence. Thus, if the latter interpretation of the statutory language were
correct, DoT’s regulatory jurisdiction over the safe and secure commercial
transportation of hazardous materials would be essentially exclusive; even without
actually regulating any aspect of the safe transportation of hazardous materials,
DoT would have pre-empted the field. We are reluctant to accept this broad
interpretation of section 845(a)(1). To accept it would be to eviscerate the criminal
provisions of chapter 40 and the Attorney General’s prosecutorial and regulatory
authority, see 18 U.S.C. § 847,6 to enforce those provisions, at least as they apply
to commercial transportation. Such a construction would run afoul of the “well
established [principle] that when two regulatory systems are applicable to a certain
subject matter, they are to be reconciled and, to the extent possible, both given
effect.” Pennsylvania v. Interstate Commerce Comm’n, 561 F.2d 278, 292 (D.C.
Cir. 1977); accord FTC v. Ken Roberts Co., 276 F.3d 583, 593 (D.C. Cir. 2001)
(“Because we live in an ‘age of overlapping and concurring regulatory jurisdic-
tion,’ a court must proceed with the utmost caution before concluding that one
agency may not regulate merely because another may.”) (internal citations
omitted). Although Congress may certainly grant one agency exclusive jurisdic-
tion over an area of federal regulation, we are loath to infer such a sweeping grant

   6
     See Homeland Security Act of 2002, Pub. L. No. 107-296, § 1111(c)(1), 116 Stat. 2135, 2275
(2002) (transferring the authorities of the Secretary of Treasury with regard to ATF to the Attorney
General).




                                                44
       DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability


of authority, which here even displaces criminal prosecutorial authority, without a
more precise statement from Congress. Accordingly, we believe that the section
845(a)(1) exemption is best read as applying only when DoT has actually regulat-
ed some aspect of the safe transportation of explosive materials. Cf. Chao v.
Mallard Bay Drilling, Inc., 534 U.S. 235, 241 (2002) (interpreting preemption
provision of Occupational Safety and Health Act such that “mere possession by
another federal agency of unexercised authority to regulate certain working
conditions is insufficient to displace [the Occupational Safety and Health Admin-
istration]’s jurisdiction”).
    Our second interpretive question asks what is meant by the “aspect[s]” of the
safe transportation of explosives that are regulated by DoT. In interpreting this
provision we must ask whether an exemption from criminal liability obtains
whenever DoT has actually regulated any aspect of the safe transportation of
explosive materials or whether the exemption prevails only when DoT has
regulated the particular aspect of the safe transportation of explosive materials
that prompted Congress to enact the criminal statute from which the exemption is
sought. We believe that the latter interpretation is the better one.
    This reading provides a link between the criminal liability imposed by section
842(i) and the exemption from this liability found in section 845(a)(1). We believe
such a link is necessary because it is highly unlikely that Congress would have
criminalized a particular aspect of the transportation of explosive materials—here,
the threat to security posed by the driver—and then provided a broad exemption
from this criminal liability whenever DoT regulates any aspect of the safe
transportation of explosive materials, even if the regulated aspect is not one that
pertains to the threat Congress addressed in the criminal prohibition. This reading
would mean, for example, that if DoT had issued only one regulation pertaining to
the safe and secure transport of explosive materials—say, a regulation requiring
explosive materials to be locked up at all times during transport to prevent theft—
no one, or at least no commercial driver, could be liable for any offense under
chapter 40 concerning the transportation of explosives. We believe that this
construction reads too much into section 845(a)(1).
    Instead, we believe that section 845(a)(1) is more properly construed to provide
relief from criminal liability whenever DoT has regulated the particular aspect of
the safe transport of explosive materials that Congress sought to regulate through
criminal liability. That is, section 845(a)(1)’s immunity is limited to situations
where an individual is subject to DoT regulations regarding the activity covered
by the criminal provision. Reading the statute this way ascribes to the exemption a
perfectly reasonable purpose: to eliminate wasteful duplication in the enforcement
efforts of federal agencies, and to prevent the regulated community from having to
comply with two sets of potentially conflicting regulations concerning the same
aspect of transportation. This reading also ensures that every person transporting
explosives will be covered by one of the two alternative federal schemes (but not
both): the criminal prohibition contained in section 842(i) or the regulations issued



                                         45
                    Opinions of the Office of Legal Counsel in Volume 27


by DoT. The alternative reading, by contrast, would ascribe to the statute the
startling purpose of creating a blanket immunity from prosecution for any criminal
explosives offense regarding the transportation of explosives, even if DoT had
regulated only certain limited, unrelated, aspects of the safe transportation of
explosives. We are reluctant to ascribe to Congress such an unusual intent without
more explicit direction. We therefore conclude that the section 845(a)(1) exemp-
tion is available only where DoT has regulated the particular aspect of the
transportation of explosive materials with which Congress was concerned in
passing the criminal provision from which relief is sought.
   While not directly binding on the question before us, we note that our conclu-
sion is consistent with the conclusion reached by the Supreme Court in Chao v.
Mallard Bay Drilling, Inc., 534 U.S. 235 (2002).7 In Chao, the Court examined a
preemption provision contained in the Occupational Safety and Health Act of 1970
(“OSH Act”). The OSH Act, which is enforced by the Occupational Safety and
Health Administration (“OSHA”), imposes a duty on covered employers to
provide working conditions that “‘are free from recognized hazards that are
causing or are likely to cause death or serious bodily harm’” to their employees, as
well as an obligation to comply with safety standards promulgated by the Secre-
tary of Labor.” Id. at 240–41 (quoting 29 U.S.C. § 654(a)(1)). However, the Act
contains the following preemption provision: “[n]othing in this [Act] shall apply to
working conditions of employees with respect to which other Federal agencies . . .
exercise statutory authority to prescribe or enforce standards or regulations
affecting occupational safety and health.” 29 U.S.C. § 653(b)(1) (2000).
   In Chao, OSHA had cited a drilling company for violations of the OSH Act
that occurred while the company was drilling a well in the territorial waters of
Louisiana. The drilling company argued that OSHA’s jurisdiction was preempt-
ed by section 653(b)(1) of title 29 because the Coast Guard had regulated some
aspects of occupational safety and health on vessels in navigable waters. The
Court disagreed, holding that “minimal exercise of some authority over certain
conditions on vessels” would not trigger the preemption provision. Chao, 534
U.S. at 241. Instead, the Court held that OSHA’s jurisdiction was preempted
only if the working conditions at issue in a given case were the “particular ones
‘with respect to which’ another federal agency has regulated.” Id. (quoting 29
U.S.C. § 653(b)(1)).
   Chao, of course, is not dispositive in the instant case because the language of
the preemption provision in section 653(b)(1) of title 29 differs from the language


    7
      Indeed, DoT’s Federal Motor Carrier Safety Administration has conceded this point. DoT Sub-
mission, Tab 2, at 4 (“The term ‘any aspect’ could also mean that ATF has no jurisdiction over ‘any
aspect’ of the safe transportation of explosives regulated by DoT, but may apply the prohibitions of
Sec. 1123 that are not covered by ‘any aspect’ of the DoT program. Since DoT does not directly
regulate drivers by nationality, this would allow ATF to enforce the prohibition on aliens. [This]
position is consistent with the Supreme Court’s decision” in Chao).




                                                46
       DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability


in section 845(a)(1) of title 18. Yet we do not believe that there is a great deal of
distance between the statutory language at issue in Chao (“[n]othing in this [Act]
shall apply to working conditions of employees with respect to which other
Federal agencies . . . exercise statutory authority”) and the language at issue here
(the provisions of chapter 40 “shall not apply to any aspect[s] of the transportation
of explosive materials . . . which are regulated by” DoT). Both, we believe, are
best read to suggest congruence between the general statutory requirement and the
regulation that purports to preempt it. Moreover, our reading is consistent with the
Court’s express desire to avoid “large gaps” in the enforcement of the regulatory
scheme. Chao, 534 U.S. at 245 n.9 (noting that to construe the preemption
provision otherwise “would mean that if the Coast Guard regulated marine toilets
on [the vessel in question] and nothing more, any OSHA regulation of the vessel
would be pre-empted”). This principle applies with particular force in light of
Congress’s manifest concern with shoring up the nation’s defenses after the events
of September 11. See, e.g., USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat.
272, 397 (2001); Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135
(2002).
    For these reasons, we believe there must be more than an attenuated link be-
tween the DoT regulation that seeks to invoke the section 845(a)(1) exemption and
the activity prohibited under chapter 40. We believe that the section 845(a)(1)
exemption is triggered only when DoT has regulated the particular “aspect[s] of
the [safe] transportation of explosive materials” that are criminalized by section
842(i), as amended. By passing section 842(i), as amended, Congress identified a
presumptive security threat posed by allowing certain categories of persons to
transport explosives, and regulated that threat through criminal liability, subject to
relief after satisfactory completion of a background check. It would eviscerate this
statutory scheme to conclude that a regulation completely unrelated to the
prohibition would provide immunity from criminal liability under this section.
Because section 842(i) criminalizes the transportation of explosives by specified
categories of persons, we believe that the section 845(a)(1) exemption applies only
if DoT has, in fact, regulated the security risk posed by the transportation of
explosives by these categories of persons.

                                         D.

    We next address whether DoT has regulated the security risk posed by the
transportation of explosives by the categories of persons listed in section 842(i).
The only specific regulation that DoT points to in this regard is that in 1988 DoT
“determined that commercial drivers’ license[s] issued by Canadian Provinces and
Territories in conformity with the Canadian National Safety Code are in accord-
ance with the standards of [49 C.F.R. Part 383].” DoT Submission, Tab 2, at 2
(quoting 49 C.F.R. § 383.23(b) n.1). Part 383 is entitled “Commercial driver’s
license standards; requirements and penalties.” But nothing in that part regulates



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                     Opinions of the Office of Legal Counsel in Volume 27


the security threat posed by a particular driver. Moreover, DoT’s determination in
1988 that Canadian commercial drivers’ licenses satisfied DoT regulations pre-
dated the requirement in the USA PATRIOT Act that domestic hazmat licenses be
issued only after DoT has determined that the applicant does not pose a security
risk. See supra p. 43 (discussing section 5103a(a)(1) of title 49, as amended, which
prohibits states from issuing commercial driver’s licenses for transporting
hazardous materials “unless the Secretary of Transportation has first deter-
mined . . . that the individual does not pose a security risk warranting denial of the
license”). Thus, although DoT determined in 1988 that Canadian commercial
drivers’ licenses satisfied DoT regulations, that determination did not include an
assessment of the security review, if any, conducted by Canadian provinces
because there was no U.S. equivalent at the time.
    DoT does not currently perform any such assessment of Canadian hazmat
licensees,8 nor has DoT officially endorsed any Canadian background check
system that may already be in place.9 Thus, we conclude that DoT has not
regulated the security risk posed by the transportation of explosives by the relevant
category of persons in section 842(i)—here, aliens.10
    Accordingly, we do not believe that the regulations cited by DoT have actually
regulated the “aspect of the transportation of explosive materials” that is criminal-
ized by section 842(i), as amended, in a way that would allow the Canadian truck



    8
      The provisions of the USA PATRIOT Act that require DoT to perform background checks before
a person may receive a license to transport hazardous materials, see 49 U.S.C. § 5103a (Supp. I 2002),
are triggered only by an individual’s application for a license issued by a U.S. state. They do not apply
to persons holding Canadian hazmat licenses; nor may persons holding Canadian licenses apply for
licenses issued by U.S. states. See 49 C.F.R. § 383.21 & 383.23(b) n.1 (2001). We are informed that
DoT is working with the Canadian government to establish a procedure regarding background checks
for Canadian hazmat licensees, but such a procedure is not currently in place. See DoT Submission,
Tab 7, at 1.
    9
      We are informed, for example, that Quebec requires all drivers (Canadian and U.S.) transporting
explosives in Quebec to obtain a general explosives permit, and that this permitting process includes a
“criminal background check and security review” of the driver. DoT Submission, Tab 2, at 3. DoT has
not indicated that any other Canadian province conducts a similar security review; nor has DoT
determined that the security review conducted by Quebec is acceptable to DoT or similar to that which
will be performed under section 5103a. See DoT Submission, Tab 7, at 1 (“Transport Canada has . . .
proposed early and effective equivalency programs for background checks of drivers, but [has] not
implemented the programs because [it has] not yet received an official USG endorsement.”).
    10
       This is not to say, however, that a DoT regulation that would trigger the section 845(a)(1) exemp-
tion would have to be identical to the scheme put in place by Congress in section 845(b). To construct a
hypothetical, we imagine that, before the passage of the USA PATRIOT Act, DoT could have
addressed the security risk posed by felons, see 18 U.S.C. § 842(i)(1), by promulgating a regulation that
allowed certain types of non-violent felons to possess hazmat licenses without going through a
background check. This regulation would not have been identical to the scheme Congress created for
dealing with the security risk posed by felons in section 845(b) of title 18, but may well have been a
sufficient regulation to allow a non-violent felon to take advantage of the exemption contained in
section 845(a)(1).




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         DoT Authority to Exempt Canadian Truck Drivers From Criminal Liability


drivers at issue here to take advantage of the section 845(a)(1) exemption from
criminal liability.11

                                                  II.

    We recognize that our resolution of the question presented to us is not free from
doubt. To invoke an over-used, but apt phrase, the statute is “far from a model of
clarity.” Our resolution rests, at bottom, on our conviction that to read the statute
in the way suggested by DoT would create an enormous gap in the enforcement of
newly enacted national security provisions, which we cannot believe Congress
intended to do. Yet two canons of statutory construction—the rule of lenity and
the Charming Betsy canon—tug against our conclusion. Although we believe that,
ultimately, neither of these canons compels a result contrary to the conclusion we
have reached, we cannot say with certainty that a court reviewing an indictment or
conviction under section 842(i) would agree.

                                                  A.

   The rule of lenity provides that “when choice has to be made between two
readings of what conduct Congress has made a crime, it is appropriate, before we
choose the harsher alternative, to require that Congress should have spoken in
language that is clear and definite.” United States v. Bass, 404 U.S. 336, 347
(1971) (internal quotations and citation omitted). Congress has certainly not done
that here. Thus, we can understand how a court might reach the conclusion that the
rule of lenity leads to the conclusion that the statute must be construed in the way
that most narrows the scope of potential criminal liability. And, indeed, one court
has done just that. See Petrykievicz, 809 F. Supp. at 799 (invoking the rule of
lenity to conclude that the focus of section 845(a)(1) must be on the materials
regulated rather than on the aspects of transportation regulated). Yet the “rule of
lenity applies only if, after seizing everything from which aid can be derived . . .
we can make no more than a guess as to what Congress intended.” Holloway v.


   11
      The section 845(a)(1) exemption applies to “any aspect of the transportation of explosive materi-
als via railroad, water, highway, or air which are regulated by” DoT “and which pertain to safety.”
(Emphasis added.) ATF hints at the argument that regardless of the reach of section 845(a)(1) with
respect to transporting explosives, section 842(i) still prohibits aliens and other prohibited persons
from possessing explosives, even if they are doing so only as a part of transportation. See ATF
Submission at 5, 10–12. Thus, if a driver could be said to be simultaneously transporting and possess-
ing explosives within the meaning of section 842(i), ATF might argue that it could still prosecute the
driver for the possession of explosives, even if DoT had actually issued a regulation that would trigger
the transportation exemption under section 845(a)(1). Although we do not resolve the question here,
we do note that ATF’s assertion of jurisdiction in such a case would severely limit, and arguably
eviscerate, section 845(a)(1) because that provision would immunize only those individuals who were
transporting but not simultaneously possessing explosives. We do not know whether such a class of
persons exists, and decline to speculate without further input from the affected agencies.




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                 Opinions of the Office of Legal Counsel in Volume 27


United States, 526 U.S. 1, 12 n.14 (1999) (internal quotations and citation
omitted); accord Staples v. United States, 511 U.S. 600, 619 n.17 (1994) (ambi-
guity must be “grievous” for rule of lenity to apply); Johnson v. United States, 529
U.S. 694, 712 n.13 (2000) (Scalia, J., dissenting) (“[l]enity applies only when the
equipoise of competing reasons cannot otherwise be resolved”). Although section
845(a)(1) poses interpretive difficulties, we cannot conclude that any ambiguity is
“grievous,” or that our interpretation of the statute is “a guess as to what Congress
intended.” Therefore, we believe the rule of lenity does not apply.

                                         B.

   [Redacted from original memorandum opinion at the request of the United
States Trade Representative.]

                                         III.

   For the reasons set forth above, we conclude that DoT possesses the authority
to issue a regulation that, under section 845(a)(1), would exempt Canadian truck
drivers from criminal liability under section 842(i). We further conclude, however,
that DoT has not issued such a regulation and therefore section 842(i) liability
would attach to a Canadian truck driver transporting explosives in the United
States.

                                                      JAY S. BYBEE
                                                Assistant Attorney General
                                                 Office of Legal Counsel




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