Department of Transportation Authority to Exempt Canadian Truck Drivers From Criminal Liability for Transporting Explosives
| Decision Date | 06 February 2003 |
| Docket Number | 03-5 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | 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.
MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION AND THE ACTING CHIEF COUNSEL BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVESWe 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 provision 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 categories 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 [ 39] 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 ().
Section 845(a)(1) 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). 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 possessing]" 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.
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 [ 40] first define the reach of the exemption and then discuss whether DoT has issued a regulation that falls within section 845(a)(1).
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. Mingworth, 489 F.2d 264, 265 (10th Cir. 1973) (); id. (); United States v. Petrykievicz, 809 F.Supp. 794, 797 (W.D. Wash. 1992) (); id. at 799 () (emphasis added).
Yet, despite the undeniable force of the argument that this is the most grammatically 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 "eviscerate[]" the criminal provisions of chapter 40. United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir. 1999). [ 41] 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 opposite, 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 Transportation . . . 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 ...
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