UNITED STATES OF AMERICA, PETITIONER v. RSR CORPORATION

   No. 82-491

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of the United States of America,
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Fifth Circuit in this case.

   Petition for a writ of certiorari to the United States Court of
Appeals for the Fifth Circuit

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Statutory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                             OPINION BELOW

   The opinion of the court of appeals (App. A, infra, 1a-15a) is
reported at 664 F.2d 1249.

                             JURISDICTION

   The judgement of the court of appeals (App. B, infra, 16a) was
entered on January 4, 1982.  A timely petition for rehearing was
denied on June 23, 1982 (App. C, infra, 17a-18a).  On August 16, 1982,
Justice White extended the time for filing a petition for a writ of
certiorari to and including September 21, 1982.  The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   1. Section 204(a)(3) of the Interstate Commerce Act, 49 U.S.C.
304(a)(3) provides:

         (a) It shall be the duty of the (Interstate Commerce)
      Commission --

                      * * * * *

         (3) To establish for private carriers of property by motor
      vehicle, if need therefor is found, reasonable requirements to
      promote safety of operation, and to that end prescribe
      qualifications and maximum hours of service of employees, and
      standards of equipment.  In the event such requirements are
      established, the term "motor carrier" shall be construed to
      include private carriers of property by motor vehicle in the
      administration of subsection (c) of this section and sections
      305, 320, 321, 322(a), (b), (d), (f), and (g), and 324 of this
      title.

   2. 49 U.S.C. (Supp. IV) 11909(b) provides:

         A person required to make a report to the (Interstate
      Commerce) Commission, answer a question, or make, prepare, or
      preserve a record under this subtitle about transportation
      subject to the jurisdiction of the Commission under subchapter
      II of chapter 105 of this title, or an officer, agent, or
      employee of that person, that (1) willfully does not make that
      report, (2) willfully does not specifically, completely, and
      truthfully answer that question in 30 days from the date the
      Commission requires the question to be answered, (3) willfully
      does not make, prepare, or preserve that record in the form and
      manner prescribed by the Commission, (4) knowingly and willfully
      falsifies, destroys, mutilates, or changes that report or
      record, (5) knowingly and willfully files a false report or
      record with the Commission, (6) knowingly and willfully makes a
      false or incomplete entry in that record about a business
      related fact or transaction, or (7) knowingly and willfully
      makes, prepares, or preserves a record in violation of a
      regulation or order of the Commission, shall be fined not more
      than $5,000.

   3. 49 U.S.C. 1655(e)(6)(C) provides:

         (e) There are hereby transferred to and vested in the
      Secretary (of Transportation) all functions, powers, and duties
      of the Interstate Commerce Commission, and of the Chairman,
      members, officers and offices thereof, under --

                      * * * * *

         (6) the following provisions of the Interstate Commerce Act,
      as amended --

                      * * * * *

         (C) relating generally to qualifications and maximum hours of
      service of employees and safety of operation and equipment:
      Sections 204(a)(1) and (2), to the extent that they relate to
      qualifications and maximum hours of service of employees and
      safety of operation and equipment;  and sections 204(a)(3),
      3(a), and (5) (49 U.S.C. 304).

   4. 49 U.S.C. 1655(f)(2)(A) and (B) provides:

         (2)(A) With respect to any function which is transferred to
      the Secretary (of Transportation) by subsection (e) and which
      was vested in the Interstate Commerce Commission preceding such
      transfer, the Secretary shall have the same administrative
      powers under the Interstate Commerce Act as the Commission had
      before such transfer with respect to such transferred function.
      After such transfer, the Commission may exercise its
      administrative powers under the Interstate Commerce Act only
      with respect to those of its functions not transferred by
      subsection(e).

         (B) For purposes of this paragraph --

         (i) the term "function" includes power and duty, and

         (ii) the term "administrative powers under the Interstate
      Commerce Act" means any functions under the following provisions
      of the Interstate Commerce Act, as amended:  * * * section() * *
      * 222 (codified as 49 U.S.C. 322, recodified as 49 U.S.C. 11909)
      (except subsections (b)(2) and (b)(e) thereof * * * .

                          QUESTION PRESENTED

   Whether, when Congress recodified the Interstate Commerce Act
"without substantive change," it "inadvertently" repealed pre-existing
criminal penalties for violations by private carriers of the Federal
Motor Carrier Safety Regulations.

                               STATEMENT

   1. Respondent RSR Corporation ("RSR") sells lead obtained from
recycled batteries and uses a large fleet of privately owned trucks to
transport its property across state lines (June 6, 1980 Tr. 7).  /1/
As such, it is one of approximately 108,000 private motor carriers
subject to the jurisdiction of the Department of Transportation (DOT),
which regulates carrier safety.  In 1969 and 1973, during safety
compliance surveys of RSR's motor carrier operations, DOT
investigators found numerous violations of the Federal Motor Carrier
Safety Regulations.  Some of those violations concerned drivers' daily
log books.  On both occasions, RSR promised that it would institute
procedures to correct the deficiencies (July 11, 1980 Tr. 45, 47-48).

   A third safety compliance survey of RSR's operations in 1979
revealed hundreds of violations of the motor carrier safety
regulations, including at least two instances in which RSR failed to
report a major accident involving one of its vehicles (July 11, 1980
Tr. 46, 48-49).  Accordingly, on April 21, 1980, the government filed
a criminal information in the United States District Court for the
Northern District of Texas charging RSR with eight counts of
maintaining false daily driver logs, in violation of 49 U.S.C. (Supp.
IV) 11909(b) and 49 C.F.R. 395.8.  /2/ The information alleged that
RSR knowingly and willfully maintained logs indicating that drivers
were off duty when in fact they were not (June 23, 1980 Tr. 22-25).

   RSR moved to dismiss the information on the ground that Section
11909(b) does not prescribe criminal penalties for private carriers
such as itself.  The district court denied RSR's motion (June 16, 1980
Tr. 17), and RSR pleaded guilty to five counts of the information
(June 23, 1980 Tr. 22-24, 31).  Following RSR's plea of guilty, it was
fined $5,000 on each of the five counts and the remaining three counts
were dismissed (July 11, 1980 Tr. 50-51).

   2. The court of appeals vacated RSR's convictions, holding that, as
a result of the 1978 recodification of the Interstate Commerce Act
(Pub. L. No. 95-473, 92 Stat. 1337), criminal penalties for violations
of 49 C.F.R. 395.8 no longer applied to private motor carriers.
Although the court recognized that Congress expressly stated in
Section 3(a) of the 1978 recodification that the act "may not be
construed as making a substantive change in the laws replaced" (Pub.
L. No. 95-473, 92 Stat. 1466), /3/ it found that Congress nonetheless
had "inadvertently" made a major change -- the repeal of criminal
penalties for violations of safety regulations by private motor
carriers.

   The recodified penalty provision (49 U.S.C. (Supp. IV) 11909(b))
replaced 49 U.S.C. 322(g).  It generally tracked the language of
Section 322(g), but included, in the panel's view, one significant
change:  a reference to "transportation subject to the jurisdiction of
the (Interstate Commerce) Commission." The court concluded that,
because the 1966 Department of Transportation Act had transferred the
ICC's authority to regulate private motor carriers to the DOT, the ICC
had no such jurisdiction at the time of recodification.  Therefore,
the recodified provision did not apply to private motor carriers
because, in the court's view, such carriers were not "subject to the
jurisdiction" of the ICC.  Accordingly, the court held that the 1978
recodification stripped the DOT of enforcement powers over its own
regulations issued pursuant to 49 U.S.C. 304(a)(3).

   The court reached this conclusion even though it recognized that
"Congress intended no substantive change in the Interstate Commerce
Act and related laws" (App. A, infra, 6a).  Moreoever, the court noted
that there is no dispute "that the information would have been proper
if RSR had been charged with a violation of 49 U.S.C. Section 322(g)"
prior to the recodification (App. A, infra, 8a;  see id. at 2a).
Finally, after reviewing the legislative history, the court concluded
that it was unambiguously clear that Congress intended to preserve
criminal sanctions in the situation:  "this is what Congress clearly
meant to say, intended to say, and wanted to say" (id. at 10a).  The
court nevertheless declined to follow what it recognized to be the
manifest intent of of Congress;  instead, it considered itself bound
by the doctrine of strict construction and reversed RSR's convictions.

                     REASONS FOR GRANTING PETITION

   This case presents an important question concerning the authority
and responsibility of the Department of Transportation (DOT) to
regulate private motor carriers.  The decision below strips DOT of
authority to promulgate mandatory regulations for almost two-thirds of
the carriers that are currently subject to its jurisdiction.  The
potential impact of the decision below is illustrated by the following
figures:  DOT's Federal Highway Administration currently promulgates
safety regulations for some 180,000 carriers, including more than
108,000 private carriers who operate approximately 850,000 vehicles.
Thus, DOT's ability to assure safety on the nation's highway will be
severely restricted unless the decision below is reversed.  Indeed,
the adverse consequences of the court of appeals' decision already
have begun to emerge.  On September 2, 1982, a district court, relying
on the decision below, granted a motion to vacate a two-year old
criminal conviction under a companion provision of the Interstate
Commerce Act.  United States v. Faygo Beverages, Inc., Cr. No.
80-80509 (E.D. Mich.).  When placed in context, the implications of
this decision are clear.  The Federal Highway Administration's
regional office in Ft. Worth, which covers Texas, New Mexico,
Louisiana, Arkansas and Oklahoma (an area embracing a large part of
the Fifth Circuit), estimates that in the years 1978-1981 it
recommended the prosecution of almost 40 criminal cases against
private carriers.  Many of those prosecutions could be undermined by
the decision of the court of appeals in this case.  /4/

   Without the criminal penalties Congress enacted, DOT would be left
without any effective means of enforcing its safety regulations for
private motor carriers.  Under the decision below, those regulations
would no longer be mandatory but merely precatory because no
enforcement mechanism would remain.  This is contrary to the express
language and legislative history of the recodification of the
Interstate Commerce Act, and is at odds with numerous decisions of
this Court that hold that penal statutes are not to be construed in a
manner that defeats Congress' manifest intent.  The judgment in the
present case, moreover, cannot be reconciled with the recent decision
of the Second Circuit in United States v. Rossetti Brothers, 671 F.2d
718 (1982), which rejected the same arguments that prevailed in the
Fifth Circuit.  Review by this Court is necessary in order to resolve
this split in circuit court authorities in a manner that will allow
DOT to fulfill its statutory mandate of ensuring safety on the
nation's highways.

   1. Prior to 1966, the Interstate Commerce Commission (ICC) was
empowered to regulate aspects of transportation of property by motor
carriers engaged in interstate commerce (see ch. 498, 49 Stat. 543 (49
U.S.C. 1 et seq.)).  While all such carriers were subject to ICC
jurisdiction, the extent of regulation depended upon whether the
carrier was classified as a common, contract, or private carrier.
Section 204(a)(3) of the Interstate Commerce Act (49 U.S.C.
304(a)(3)), gave the Commission powers to promulgate regulations
governing the safety of private motor carriers.  And Section 222(g),
49 U.S.C. 322(g) (now codified at 49 U.S.C. (Supp. IV) 11909(b))
provided criminal penalties for failure to comply with those
regulations.

   In 1966, the Department of Transportation was created (Pub. L. No.
89-670, 80 Stat. 931, (codified at 49 U.S.C. 1651 et seq.)) and
certain functions previously performed by the ICC were transferred to
DOT.  Among the functions so transferred were those relating to
"qualifications and maximum hours of service of employees and safety
of operation and equipment (under) * * * sections 204(a)(3), (3a), and
(5) (49 U.S.C. 304)." 49 U.S.C. 1655(e)(6)(C).  In addition, 49 U.S.C.
1655(f) expressly provided that DOT was vested with the same functions
and administrative powers the ICC had enjoyed under 49 U.S.C. 322.
Thus, plenary power to adopt regulations governing private carriers
and to enforce those regulations by criminal prosecution, previously
within the jurisdiction of the ICC, was transferred directly to DOT.
See United States v. Youngstown Cartage Co., Fed. Carr. Cas. (CCH)
Paragraph 82,383 (N.D. Ohio Jan. 10, 1973).  /5/

   This statutory scheme was not revisited until 1978 when Congress,
recognizing that intervening amendments had left the substantive
provisions of federal transportation law scattered among various
codified and uncodified sections, undertook to restate the Interstate
Commerce Act and related laws "without substantive change" and to
enact those laws as subtitle IV of the 49th title of the United States
Code.  See 124 Cong. Rec. 30172 (1978) (remarks of Reps. Eilberg,
McClory).  /6/ That this recodification was intended to effect no
substantive change was reflected not only in the legislative history,
but also in the statutory language.  To this end, Section 3(a) of the
recodification statute (Pub. L. No. 95-473, 92 Stat. 1466), entitled
"Legislative Purpose and Construction," states that "Sections 1 and 2
of this Act restate, without substantive change, laws enacted before
May 16, 1978, that were replaced by those sections.  Those sections
may not be construed as making a substantive change in the laws
replaced" (emphasis added).  In addition, Section 3(c) provides that
"(a)n order, rule, or regulation in effect under a law replaced by
sections 1 and 2 of this Act continues in effect under the
corresponding provision enacted by this Act until repealed, amended,
or superseded" (emphasis added).  And Section 3(d) provides that
offenses committed under replaced sections are "deemed to have been *
* * committed under" the recodified sections.

   Among the sections of the Interstate Commerce Act thus restated
"without substantive change" was 49 U.S.C. 322(g) (currently codified
at 49 U.S.C. (Supp. IV) 11909(b)), /7/ which imposes criminal
penalties on private carriers that, like respondent RSR, "knowingly"
and "willfully" maintain false records in violation of safety
regulations.  The significance of these criminal sanctions in the
statutory scheme can scarcely be overstated.  They are the only means
Congress prescribed for enforcement of DOT safety and recordkeeping
regulations.  In the absence of criminal enforcement, the regulations
covering important questions of public safety would be, as the Second
Circuit recognized in United States v. Rossetti Brothers, supra, 671
F.2d at 720 "reduce(d) * * * to precatory provisions." In that event,
the 108,000 private carriers under DOT's jurisdiction would be subject
to no effective regulation under the Interstate Commerce Act.

   The clear import of 49 U.S.C. (Supp. IV) 11909(b), when read in the
context of the recodification statute of which it was a part, is that
the pre-existing criminal sanctions would continue "without
substantive change" and that pre-existing regulations would
"continue() in effect." Under settled rules of statutory construction,
this statutory context may not be overlooked.  It is well established
that "a section of a statute should not be read in isolation from the
context of the whole Act, and that in fulfilling (its) responsibility
in interpreting legislation (this Court) 'must not be guided by a
single sentence or member of a sentence, but (should) look to the
provisions of the whole law * * * '." Richards v. United States, 369
U.S. 1, 11 (1962) (footnote omitted).  Accord, United States v.
Turkette, 452 U.S. 576, 587-588 n.10 (1981);  United States v.
Naftalin, 441 U.S. 768, 772-774 (1979);  Bifulco v. United States, 447
U.S. 381, 388-390 (1980);  NLRB v. Lion Oil Co., 352 U.S. 282, 288
(1957);  see United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113,
122 (1850);  2A C. Sands, Sutherland Statutory Construction Section
46.05 (1973).  Thus, "courts should interpret a statute with an eye to
the surrounding statutory landscape and an ear for harmonizing
potentially discordant provisions * * * ." United States v. Bass, 404
U.S. 336, 344 (1971).  Indeed, even in the context of sentencing
provisions in penal statutes, a single phrase should not be construed
in isolation from the statutory scheme as a whole when to do so would
result in a meaning that contradicts or distorts "the fair import of
the whole remaining language." United States v. Brown, 333 U.S. 18,
25-26 (1948);  see, e.g., United States v. Campos-Serrano, 404 U.S.
293, 298 (1971);  United States v. Bass, supra, 404 U.S. at 350-351.

   Rather than interpret Section 11909(b), as it should have, in the
context of the statute of which it was a part, the court of appeals
focused on a minor language change in the recodification (see note 7,
supra).  By limiting its scope of inquiry to the words "subject to the
jurisdiction of the Commission" (49 U.S.C. (Supp. IV) 11909(b)), the
court rendered an unduly narrow interpretation wholly at odds with the
stated objective of Congress.  Thus, the court concluded that, because
authority to regulate private carriers had been transferred from the
ICC in 1966, the 1978 statutory reference to ICC jurisdiction could
not have included such carriers.  In so concluding, the court
effectively ignored both the Department of Transportation Act of 1966,
which transferred the relevant ICC powers, and the express language of
the 1978 recodification, which instructed the federal courts to
construe Section 11909(b) as not * * * making a substantive change."
Construing Section 11909(b) as making no substantive change requires a
conclusion different from that of the court of appeals -- i.e., that
once the "jurisdiction of the Commission" was transferred to DOT, DOT
was invested with full power to assure private carrier safety by
promulgating regulations enforced by criminal sanctions.

   2. The court of appeals believed that the language of Section
11909(b) abolished criminal jurisdiction over private carriers for
violations of safety regulations, even though it recognized that the
legislative history conclusively showed that Congress intended to
preserve that jurisdiction.  App. A, infra, 10a ("this is what
Congress clearly meant to say, intended to say, and wanted to say").
Yet, feeling bound by its restrictive reading of the statute and the
rule of lenity, the court held that "Congress did not say it" (ibid.).
 As explained above, the court erred in its interpretation of the
language of the statute;  beyond this, however, it erred in failing to
give effect to Congress' intent as expressed in the legislative
history.  See United States v. Rossetti Brothers, supra, 671 F.2d at
720 ("(w) here Congress's purpose is frustrated by a rigid application
of statutory language, common sense and evident statutory purpose must
inform a court's construction of the statute").

   Contrary to the view of the court of apppeals, the rule of lenity
is merely "a() guide to statutory construction" (Callanan v. United
States, 364 U.S. 587, 596 (1961)), which is not applicable unless
there is such a "grievous ambiguity or uncertainty in the language and
structure of the Act" (Huddleston v. United States, 415 U.S. 814, 831
(1974)) that even "(a)fter (a court has) 'seiz(ed) every thing from
which aid can be derived * * * ' (it is still) left with an ambiguous
statute." United States v. Bass, supra, 404 U.S. 347, quoting United
States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805).  As this Court
observed in United States v. Moore, 423 U.S. 122, 125 (1975), quoting
United States v. Brown, 333 U.S. 18, 25-26 (1948):

      The canon in favor of strict construction (of criminal statutes)
      is not an inexorable command to override common sense and
      evident statutory purpose * * * .  Nor does it demand that a
      statute be given the "narrowest meaning";  it is satisfied if
      the words are given their fair meaning in accord with the
      manifest intent of the lawmakers.

   See also, e.g., United States v. Naftalin, 441 U.S. 768, 778-779
(1979), United States v. Culbert, 435 U.S. 371, 379 (1978);
Scarborough v. United States, 431 U.S. 563, 577 (1977);  Iannelli v.
United States, 420 U.S. 770, 789 (1975);  id. at 795 (Douglas J.,
dissenting);  id. at 798 (Brennan, J., dissenting);  United States v.
Moore, 613 F.2d 1029, 1043-1045 (D.C. Cir. 1979), cert. denied, 446
U.S. 954 (1980).

   Moreover, as this Court noted in United States v. Culbert, supra,
435 U.S. at 379, the rule of lenity applies only when a statute is
genuinely ambiguous, or uncertainty exists as to Congress' intent.
See also United States v. Batchelder, 442 U.S. 114, 121 (1979).  Thus,
the rule of lenity is not implicated here.  As we have shown, the
recodification plainly negates any suggestion that criminal sanctions
were intended to be repealed.  Moreover, the statute's legislative
history shows -- without a shred of evidence to the contrary -- that
Congress "intended merely to transplant (the penalty) section,
renumbered into the recodified portion of the Act." United States v.
Rossetti Brothers, supra, 671 F.2d at 720.  /8/

   Since Congress' intent is clearly expressed in the legislative
history, as the court of appeals recognized, the court erred in
failing to give weight to the legislative history in rendering its
interpretation.

   3. Even if the rule of lenity were relevant to this case, the court
of appeals seriously erred in its application of the rule.  As this
Court has held (United States v. Brown, supra, 333 U.S. at 25-26), no
rule of statutory construction requires

      magnified emphasis upon a single ambiguous word in order to give
      it a meaning contradictory to the fair import of the whole
      remaining language.  As was said in United States v. Gaskin, 320
      U.S. 527, 530, the canon "does not require distortion or
      nullification of the evident meaning and purpose of the
      legislation."

   See United States v. Turkette, supra, 452 U.S. 587-588 n.10;
United States v. Moore, 423 U.S. 122, 145 (1975);  see also Barrett v.
United States, 423 U.S. 212, 218 (1976);  United States v. Cook, 384
U.S. 257, 262 (1966).

   In this case, Congress' intent that the 1978 legislation work no
substantive change is manifest.  The court of appeals' conclusion that
criminal jurisdiction was "inadvertently" stripped from the Interstate
Commerce Act is precisely the kind of conclusion that Congress sought
to prevent by the plain language of its savings provisions.  /9/
Moreover, the court's conclusion directly conflicts with the
established presumption that recodifications are not meant to make
substantive changes in previous statutes.  See Fourco Glass Co. v.
Transmirra Products Corp., 353 U.S. 222, 227-228 (1957);  United
States v. Cook, 384 U.S. 257, 262 (1966);  Cass v. United States, 417
U.S. 72, 82 (1974).  /10/ If legislative intent could be thwarted by
mechanical application of the "rule of lenity," congressional attempts
to restate complex legislation would be hampered and the current
effort to recodify the Interstate Commerce Act would be burdened by
the need for correcting amendments before Congress could proceed to
the next stage of its recodification process.  /11/ Such a result is
not demanded by the "rule of lenity," which should only be utilized
when a court's " * * * interpretation can be based on no more than a
guess as to what Congress intended." Bifulco v. United States, supra,
447 U.S. at 387.  It should not be used to directly contradict
legislative intent or to reach what the Second Circuit correctly
characterized as an "anomalous result." United States v. Rossetti
Brothers, supra, 671 F.2d at 720.

   Moreover, this case does not involve the factors that typically
have formed the basis for this Court's invocation of the rule of
lenity.  First, there is no serious dispute that RSR received "fair
warning" of the requirements of the law (United States v. Bass, supra,
404 U.S. at 348).  RSR clearly had notice of the required conduct from
prior compliance surveys that disclosed numerous violations and evoked
corporate promises to remedy the violations.  In addition, RSR's
guilty plea admitted making, in the words of the statute, "willful()"
and "knowing()" falsifications in its reports, and the testimony at
the plea hearing established the factual basis for the conviction
(June 18, 1980 Tr. 31-36).  Moreover, 49 C.F.R. 395.8 expressly states
that any violation "shall make * * * the carrier liable to
prosecution" (see note 2, supra), and RSR has never questioned the
application of this regulation.  Thus, this is not a case involving
inadvertent violations of regulatory requirements of which RSR was
unaware.  /12/

   Second, this case does not present the other basis for the holding
in United States v. Bass, supra, 404 U.S. at 348:  "'the instinctive
distaste against men languishing in prison unless the lawmaker has
clearly said they should" (quoting H. Friendly, Benchmarks, Mr.
Justice Frankfurter and the Reading of Statutes, 196, 209 (1967)), RSR
is a corporate defendant subject only to the same penalty (a fine)
traditionally imposed in civil or administrative proceedings.

   Third, unlike Williams v. United States, No. 80-2116 (June 29,
1982), slip op. 11, this is not a case in which the "legislative
history * * * fails to evidence congressional awareness of the
statute's claimed scope." As we have demonstrated, the government's
interpretation is the only one Congress considered and Congress made
its intent clear in Section 3 of the recodification statute.

   Finally, also unlike Williams v. United States, supra, slip op. 11,
this case does not involve "subject matter that has traditionally been
regulated by state law." The enforcement powers at issue here have
long been exercised by the ICC and more recently by DOT.  Moreover,
there can be no dispute that application of safety standards to
private carriers engaged in interstate commerce is a subject properly
within the purview of federal law.

   In short, no rule of statutory construction compels a court to
disregard the express language and structure of a statute, or to
ignore the unqualified expression of intent contained in the
legislative history.  Under governing canons of statutory construction
as often pronounced by this Court and as applied by the Second Circuit
in United States v. Rossetti Brothers, supra, the only proper result
is to read the recodification precisely as Congress directed -- as
resulting prior law "without substantive change."

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   JERROLD J. GANZFRIED

      Assistant to the Solicitor General

   JANIS H. KOCKRITZ

      Attorney

   SEPTEMBER 1982

   /1/ "June 6, 1980 Tr." refers to the transcript of a hearing in the
district court on RSR's motion to dismiss the information.  "June 23,
1980 Tr." refers to the transcript of the plea hearing in the district
court.  "July 11, 1980 Tr." refers to the sentencing hearing.

   /2/ 49 U.S.C. (Supp. IV) 11909(b) imposes criminal penalties for
willfully maintaining false records, including records required by 49
C.F.R. 395.8, which provides in pertinent part:

         (a) Except as provided in Section 395.9 and paragraph (t) of
      this section, every motor carrier shall require that a drivers's
      daily log, form MCS-59, shall be made in duplicate by every
      driver used by the carrier and every driver who operates a motor
      vehicle shall make such a log.  Failure to make logs, failure to
      make required entries therein, falsification of entries, or
      failure to preserve logs shall make both the driver and the
      carrier liable to prosecution * * * .

   /3/ Section 3 of the Act, entitled "Legislative Purpose and
Construction," provides in pertinent part (Pub. L. No. 95-473, 92
Stat. 1466):

         (a) Sections 1 and 2 of this Act restate, without substantive
      change, laws enacted before May 16, 1978, that were replaced by
      those sections.  Those sections may not be construed as making a
      substantive change in the laws replaced.  * * *

                      * * * * *

         (c) An order, rule, or regulation in effect under a law
      replaced by sections 1 and 2 of this Act continues in effect
      under the corresponding provision enacted by this Act until
      repealed, amended, or superseded.

         (d) An action taken or an offense committed under a law
      replaced by sections 1 and 2 of this Act is deemed to have been
      taken or committed under the corresponding provision enacted by
      this Act.

   /4/ Any of those cases still pending within the Fifth Circuit would
be subject to the holding in the present case.  Moreover, even
terminated cases would be subject to collateral attack if the theory
of the district court in Faygo Beverages, supra, were followed.

   The Ft. Worth office is one of the nine Federal Highway
Administration regional offices.  Other regional offices have reported
comparable caseloads.

   /5/ The district court in Youngstown Cartage provided a succinct
summary of the state of the relevant law with respect to private
carriers following enactment of the 1966 Department of Transportation
Act (Fed. Carr. Cas. (CCH) Paragraph 82,383 at 56,062 to 56,063):

         (T)he powers, duties and functions of the ICC including its
      regulations were transferred to DOT.  One of these powers,
      duties and functions carried over concerns the maximum hours of
      service of employees and safety operation and equipment * * * .
      The Act also tranferred to DOT the administrative power to
      pr(e)scribe regulations and enforce provisions of the chapter
      dealing with motor carriers.

         The Act also contains a significant savings provisions which
      in substance, provides that whenever a function, power or duty
      is transferred, reference in any other federal law to the power
      transferred shall be deemed to mean the party to whom the power,
      duty or function was vested.

   /6/ The 1978 recodification was the first part of an ongoing
legislative project to restate and codify federal transportation law.
Future revisions and codifications will include subtitle I of title
49.  See H.R. Rep. No. 1395, 95th Cong., 2d Sess. 5 (1978);  see also
United States v. Rossetti Brothers, supra, 671 F.2d at 720 n.6.

   /7/ In the process of recodification a minor language change was
made in this section.  Where Section 322(g) had referred to "(a)ny
motor carrier * * * who shall willfully fail or refuse to make a
report to the Commission as required by this chapter * * * ," the
replacement provision, Section 11909(b), refers to "(a) person
required to make a report to the Commission * * * about transportation
subject to the jurisdiction of the Commission under subchapter II of
chapter 105 of this title * * * ."

   /8/ Rossetti Brothers involved a companion provision to the one at
issue in this case (49 U.S.C. (Supp. IV) 11914(b)), which is the
recodification of 49 U.S.C. 322(a)).  The legislative history involved
is precisely the same for both provisions and, as is clear from the
Second Circuit's analysis, there is no doubt that that court would
disagree with the Fifth Circuit's decision here.

   /9/ See note 3, supra;  see also H.R. Rep. No. 1395, 95th Cong., 2d
Sess. 4, 9-10 (1978):

      The purpose of the bill is to restate in comprehensive form,
      without substantive change, the Interstate Commerce Act and
      related laws, and to enact those laws as subtitle IV of title
      29, United States Code.

                      * * * * *

      Substantive change not intended.  -- Like other codifications
      undertaken to enact into posivtive law all titles of the United
      States Code, this bill makes no substantive changes in the law.
      It is sometimes feared that mere changes in terminology and
      style will result in changes in substance or impair the
      precedent value of earlier judicial decisions and other
      interpretations.  This fear might have some weight if this were
      the usual kind of amendatory legislation where it can be
      inferred that a change of language is intended to change
      substance.  In a codification statute, however, the courts
      uphold the contrary presumption:  the statute is intended to
      remain substantively unchanged.

   /10/ Indeed, this Court's recent decision in Bifulco v. United
States, 447 U.S. 381, 400 (1980), establishes that clearly expressed
legislative intent overrides inadvertent or inartful draftsmanship.
See also Cass v. United States, supra, 417 U.S. at 81-82;  Greenwood
v. Peacock, 384 U.S. 808, 815-816 (1966).

   /11/ A bill recently has been introduced in Congress as part of the
ongoing recodification of the Interstate Commerce Act.  In light of
the decision below, that bill contains provisions that would amend the
Act in a manner that addresses the concerns expressed by the court of
appeals.  H.R. 6993, 97th Cong., 2d Session Sections 6, 522 (1982).
We shall advise the Court of material developments with respect to
this pending bill insofar as they relate to the issues raised in this
petition.

   /12/ The court of appeals noted that "(t)he parties do not dispute
that the information would have been proper if RSR had been charged
with a violation of (the predecessor statute) 49 U.S.C. 322(g) and if
that statute were still in effect" (App. A, infra, 8a).  Section 3(c)
of the recodification (see note 3, supra) expressly provides that any
"regulation in effect under a law replaced (by the recodification) * *
* continues in effect under the corresponding provision enacted by
this Act * * * " (emphasis added).  And Section 3(d) provides that
offenses committed under replaced sections are "deemed to have been *
* * committed" under the recodified sections.

   Appendix Omitted