b'Authority of the Federal Bureau of Investigation to\nInvestigate Police Killings\nThe Federal Bureau of Investigation is not presently authorized to investigate killings o f\nnon-federal law enforcement officers which involve only violations of state law, even\nin response to a presidential directive.\n\nJanuary 16, 1981\nM EM ORANDUM OPIN IO N FO R T H E D IR EC TO R ,\nF E D E R A L BUREAU O F IN V ESTIG A TIO N\nThis responds to your request for our views on the extent of the\nFederal Bureau of Investigation\xe2\x80\x99s (FBI\xe2\x80\x99s) authority to investigate the\nkilling of a non-federal law enforcement officer when requested to do\nso by a local law enforcement official. Your question is directed specifi\xc2\xad\ncally to investigations involving violations of state law but not federal\nlaw. In addition to the threshhold question of authority, you also pose\nquestions regarding the form o f the request for assistance (whether\nwritten or oral); the need, if any, to seek statutory authority for the\ninvestigation; and the propriety of continuing the investigations in ad\xc2\xad\nvance of this legislation. We conclude that the FBI does not presently\nhave the authority to conduct these investigations. The form of the\nrequest for assistance is therefore irrelevant. W hether legislation should\nbe sought to authorize investigations of this nature depends on whether\nthe FBI desires to continue to respond to requests for assistance from\nlocal authorities. If so, legislation must be sought; and the FB I has no\nauthority to conduct such investigations in the interim.\nI. Background\nThe FBI\xe2\x80\x99s investigation of killings of non-federal law enforcement\nofficers apparently began in response to a presidential directive of\nNovember 1, 1970, from President Nixon to Attorney General M itch\xc2\xad\nell.1 Noting the increasing number of assaults on law enforcement\n*Our search for communications or memoranda discussing the legality o f the proposed investiga\xc2\xad\ntions has disclosed no record m the files of this Office or anywhere else in the Department prior to the\ndate of the directive. W e have also made informal inquiries at the Office of Management and Budget\nand have been advised that background documents that may have been connected to President\nNixon\xe2\x80\x99s directive, if any, are no longer retrievable.\n\n45\n\n\x0cofficers, President Nixon directed the Attorney General \xe2\x80\x9cto make avail\xc2\xad\nable all appropriate investigative resources of the Department of Justice\nto w ork jointly with State or local police when requested in any case\ninvolving an assault upon a police officer.\xe2\x80\x9d 2 Subsequently, on June 3,\n1971, President Nixon met with the Attorney General, the Director of\nthe FBI, Representatives o f Congress, and 19 police executives from\naround the country. The President announced that, in addition to the\npreviously available services of the FB I laboratory, the Identification\nDivision, the National Crime Information Center, and the investigation\no f out-of-state leads, the F B I would actively participate in the investi\xc2\xad\ngation of police killings w hen a local law enforcement agency re\xc2\xad\nquested the assistance. On June 4, 1971, the FBI Director instructed all\nfield divisions regarding the new policy, advising them to obtain a\nwritten request for assistance and then \xe2\x80\x9c work the investigation like we\nwould a bank robbery case, jointly, tow ard the solution of the killing.\xe2\x80\x9d\nAn internal FBI memorandum of June 5, 1971, recognized \xe2\x80\x9cthe\nunique situation involved [,] there being at this time no Federal law\nproviding penalties for the killing of a local law enforcement officer.\xe2\x80\x9d\nAccordingly, the memorandum advised that the views of the D epart\xc2\xad\nment of Justice should be sought on some of the legal issues incident to\nthe new policy. By memorandum of the same date, the Director of the\nFBI requested an opinion from the Attorney General regarding the\nF B I\xe2\x80\x99s jurisdiction to investigate a purely local offense.3\nT he Assistant Attorney General in charge o f the Criminal Division\nreplied by memorandum o f June 28, 1971. Having noted a proposed\nline item for inclusion in the F B I\xe2\x80\x99s annual appropriation providing for\ninvestigation o f police killings, the memorandum concluded that FBI\njurisdiction to investigate posed no problem. \xe2\x80\x9cCongressional authoriza\xc2\xad\ntion to expand funds for assistance of state law enforcement activities\nappears to us a proper exercise o f the spending power.\xe2\x80\x9d 4\nT he appropriation apparently relied on in that June 28, 1971, memo\xc2\xad\nrandum was not enacted as proposed; and questions about the FB I\xe2\x80\x99s\njurisdiction continued. On November 1, 1979, the FBI\xe2\x80\x99s Legal Counsel\nDivision, by memorandum for the Assistant Director, Planning and\nInspection Division, discussed the legality o f FBI investigations of\npolice killings and concluded that there was no specific statutory au\xc2\xad\n2A ccording to an internal FBI memorandum of June 4, 1971, the purpose o f the change in policy\nwas to forestall, if possible, the passage of the many bills pending in Congress which would have\nrequired the FBI to take over the investigation of police killings. T h e FBI has consistently resisted all\nsuch legislation as an instrusion on local law enforcement responsibilities, and, in some cases, as an\nexcessive demand on FBI investigative resources.\n3T he request was primarily concerned with the FB I\xe2\x80\x99s authority to arrest, search, or interrogate a\nsuspect in connection with a local offense.\n4T he memorandum also noted the desirability o f a more explicit statutory authorization for\nw arrantless arrests by the FBI in cases not involving violations of federal law. It is not clear from the\nmemorandum w hether authonty for the investigation o f police killings was thought to exist. But it\ndoes appear that further statutory authonty was thought to be necessary and, moreover, that inclusion\no f the line item in the appropriation w as expected to suffice.\n\n46\n\n\x0cthority. The memorandum suggested that the investigations might be\njustified because Congress had been made aware of the investigations\nby statements by the Director in appropriations hearings. \xe2\x80\x9cSubsequent\nCongressional action in appropriating funds for these activities could be\nconstrued as tacit approval . . . .\xe2\x80\x9d Still, the memorandum recognized\nthe implication of a memorandum of this Office of March 22, 1978,\nentitled \xe2\x80\x9cFBI Cooperation with State or Local Authorities,\xe2\x80\x9d 5 which\nadvised that the FBI had no authority to conduct interviews for the\nbenefit of state and local law enforcement agencies where there was no\npossible violation of federal law. Although noting that the March 22\nmemorandum did not specifically address the question of FBI authority\nto act in response to a presidential directive, the Legal Counsel Divi\xc2\xad\nsion concluded that our memorandum did \xe2\x80\x9cpoint out the necessity for\nclarification in this area.\xe2\x80\x9d Your request for our advice followed.\nII. The FBI\xe2\x80\x99s Legal Authority to Investigate\nThe FB I\xe2\x80\x99s investigative authority derives from the Attorney Gener\xc2\xad\nal\xe2\x80\x99s power to appoint officials to detect \xe2\x80\x9ccrimes against the United\nStates.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 533(1). By regulation, the FBI is empowered to\ninvestigate \xe2\x80\x9cviolations of the laws o f the United States.\xe2\x80\x9d 28 C.F.R.\n\xc2\xa7 0.85(a) (1980). In construing the extent of this power, this Office has\nissued two memoranda, in addition to that o f March 22, 1978, which\nare relevant.\nIn a memorandum of November 9, 1977, for the Director of the\nFederal Bureau of Investigation (\xe2\x80\x9c FBI Cooperation with Local Au\xc2\xad\nthorities\xe2\x80\x9d), we discussed various problems arising in the context of FBI\nparticipation in cooperative undercover efforts with local law enforce\xc2\xad\nment authorities. We considered first an investigation initiated in the\nbelief that violations of federal law may be involved, and we concluded\nthat \xe2\x80\x9c[a]s long as there remains a legitimate basis for the view that the\ninvestigation of the underlying conduct may unearth violations of fed\xc2\xad\neral law, we believe that the FBI is authorized to proceed with the\ninvestigation.\xe2\x80\x9d But we further considered the situation where, as the\ncooperative investigation proceeded, it became clear that the activity in\nquestion did not constitute a violation of federal law. We concluded\nthat the FBI could not in such circumstances continue to cooperate\nwith local authorities because \xe2\x80\x9c[t]he investigation of violations o f state\nlaw alone would be beyond the authority conferred on the FBI by 28\nU.S.C. \xc2\xa7 533(1) and 28 C.F.R. \xc2\xa70.85.\xe2\x80\x9d Moreover, incurring expenses\nother than those necessary for the detection and prosecution of crimes\nagainst the United States would result in a violation of 31 U.S.C. \xc2\xa7 628,\nwhich precludes expenditures except for the purpose for which the\n5\nFBI.\n\nA copy of the memorandum, which was in the form of a memorandum to files, was sent to the\n\n47\n\n\x0cappropriation was made. T h e only exception that we noted was in the\ncontext o f an investigation from which the F B I\xe2\x80\x99s abrupt withdrawal\nwould result in a significant likelihood of physical harm to other par\xc2\xad\nticipants. In that case, we indicated that the FBI would be justified in\ncontinuing its covert activity to the extent necessary to prevent such\nharm.\nW e also had occasion to consider related issues in a memorandum of\nFebruary 24, 1978, for the D irector o f the Federal Bureau of Investiga\xc2\xad\ntion (\xe2\x80\x9cResponsibility and A uthority of FBI Agents to Respond to\nCriminal Offenses Outside th e Statutory Jurisdiction of the FB I\xe2\x80\x9d). That\nm emorandum dealt with the commission of state law offenses in the\npresence or immediate vicinity of an FB I agent who then acts either on\nhis ow n accord or in response to a summons by a local law enforce\xc2\xad\nm ent officer to detain or arrest the offender. We stated at the outset\nthat we thought it \xe2\x80\x9cclear th at the FB I has no federal authority to take\naction with respect to violations o f state law, even in the exigent\ncircumstances . . . presented].\xe2\x80\x9d Noting that the FBI\xe2\x80\x99s statutory juris\xc2\xad\ndiction in every respect\xe2\x80\x94investigation, execution of search or arrest\nwarrants, and making arrests without warrants\xe2\x80\x94was limited to acts\ninvolving violations of the laws of the United States, we concluded that\n\xe2\x80\x9c [a]ny action taken with respect to the violation of state or local law\nw ould thus be beyond the F B I\xe2\x80\x99s explicit statutory authority.\xe2\x80\x9d We did\nfind, however, that certain exigent circumstances would give rise to an\nagent\xe2\x80\x99s obligation and pow er under state law to intervene in state\noffenses, specifically, if state law designated the agent a peace officer, if\nthe common law authorized a private citizen to act, or if the common\nlaw or state statutory law required a bystander to respond to a sum\xc2\xad\nmons by a local law enforcement officer.\nW e see nothing in the question o f FBI authority that you now raise\nthat would permit a different answer than that which follows from the\nplain language o f \xc2\xa7 533(1) itself and from our three prior memoranda.6\n6 W e cannot find congressional approval of the investigations through the device of FBI appropria\xc2\xad\ntions following hearings at which D irector Hoover referred to the practice. It is true that congres\xc2\xad\nsional ratification by subsequent appropriations has been found on occasion, see Ivanhoe Irrig. Disi. v.\nMcCracken. 357 U.S. 275, 292-94 (1958); Brooks v. Dewar, 313 U.S. 354, 360-61 (1941); Sibbach v.\nWilson & Co.. 312 U.S. 1, 15-16 (1941); United States v. Midwest Oil Co.. 236 U.S. 459, 481 (1915). For\na number o f reasons, however, we find no such ratification here. First, the asserted congressional\nawareness in this case goes no further than a single committee. Moreover, it is the Appropriations\nCommittee, which has no jurisdiction over FBI activities and whose work is limited, by House and\nSenate rules, to non-substantive legislation. See TVA v. Hill, 437 U.S. 153, 189-192 (1978). Second, the\nunambiguous language of the statute is too plain to admit of a different construction, which is the\nusefulness o f the doctrine o f congressional acquiesence. Jones v. Liberty Glass Co.. 332 U.S. 524, 533\xe2\x80\x94\n34, (1947); First Nat. City Bank v. United States. 557 F.2d 1379, 1384 (Ct. Cl. 1977) In these\ncircumstances, w e would not be giving effect to a \xe2\x80\x9cconstruction** o f the statute; rather, w e would be\nrecognizing a repeal (of the limitation on FBI jurisdiction) by implication. See TVA v. Hill, supra; see\nalso S E C v. Sloan, 436 U.S. 103, 121 (1978).\nN or can w e find that the agency practice is entitled to the deference that arises in other cases from\nconsistent and longstanding administrative interpretation. Such deference cannot be paid where the\npractice is inconsistent with or in excess of statutory authority. E .g, VolksWagenwerk v. FMC, 390\nU.S. 261, 272 (1968); Opinion of the A ttorney General for the Secretary of Agriculture, June 23, 1980,\nat 12 [4 Op. O.L.C. 30, 38 (1980)]. See S E C v. Sloan. 436 U.S. at 117-19.\n\n48\n\n\x0cIf there is no reasonable expectation that the investigation will lead to\nevidence of a violation o f federal law\xe2\x80\x94and you specifically pose only\nthe situation w here there is none\xe2\x80\x94there is no FBI jurisdiction or\nauthority to investigate. None of the exceptions to this general rule\noutlined in our prior memoranda is applicable here. First, the authority\nto begin an investigation cannot be premised on the danger to other\nlaw enforcement officials or informers that might result if the FB I were\nto withdraw from the investigation. Second, the authority under the\ncommon law to act upon certain exigencies for crime prevention or\napprehension of offenders does not extend to investigations of crimes\nalready committed. Third, state statutory law, although it might con\xc2\xad\nceivably confer investigative authority, could not authorize expendi\xc2\xad\ntures that would be incurred in the course of an investigation. The\nproscriptions of 31 U.S.C. \xc2\xa7 628 would still apply.7\nThe Legal Counsel Division\xe2\x80\x99s Memorandum appears to suggest that\nour well-established view of FBI jurisdiction might be different if, as\nhere, the activity was bottomed on a presidential directive. Under 28\nU.S.C. \xc2\xa7 533(3), the Attorney General may appoint officials \xe2\x80\x9cto con\xc2\xad\nduct such other investigations regarding official matters under the con\xc2\xad\ntrol of the Departm ent of Justice and the Department of State as may\nbe directed by the Attorney General.\xe2\x80\x9d We have previously recognized\nthat pursuant to this section, the FBI could conduct such investigations\nas were ordered by a presidential directive related to the President\xe2\x80\x99s\nexercise o f his constitutional or statutory functions. Memorandum o f\nJune 16, 1976, from Assistant Attorney General Scalia, Office o f Legal\nCounsel, to Associate Deputy Attorney General Giuliani (\xe2\x80\x9cFBI Au\xc2\xad\nthority to Conduct Investigations of Potential Vice-Presidential Nomi\xc2\xad\nnees\xe2\x80\x9d).8 But we see no reason to believe that the purpose of an investi\xc2\xad\ngation of a police killing is related to any specific statutory or constitu-\n\n7 We did not address 31 U.S.C. \xc2\xa7 628 in our memorandum of February 24, 1978, possibly because an\nagent\xe2\x80\x99s actions in arresting or detaining a state law violator m an emergency situation involve no\nextraordinary expenses.\n5 The memorandum concluded that no constitutional or statutory authority existed to support a\npresidential directive to the FBI to investigate possible vice-presidential nominees, and so there was no\ndiscussion of how directly related the investigation must be. The memorandum does suggest, however,\nthat more than an indirect relation is required Although recognizing that the President\'s general\npowers to \xe2\x80\x9ctake care that the laws be faithfully executed," U.S. Const., Art. II, \xc2\xa7 3, or his nominating\npowers, Art. II, \xc2\xa7 2, could provide the basis for certain investigations, we nevertheless concluded that\nneither justification would apply in the case of a vice-presidential nominee; for the President has no\nresponsibility o r powers under the Constitution to screen candidates for public office. W e further\nconsidered the President\xe2\x80\x99s need to assure the trustworthiness of a candidate who would receive a\nnational security briefing. But we found no practice of providing such briefing to vice-presidential\ncandidates and, moreover, a \xe2\x80\x9cpossible constitutional impediment to conditioning the conferral of such\na clear benefit in the political campaign, upon agreement to an investigation, particularly when the\nincumbent President himself is an opposing candidate.\xe2\x80\x9d\n\n49\n\n\x0ctional pow er o f the President.9 Thus, this purported investigatory\npow er is not authorized by 28 U.S.C. \xc2\xa7 533(3).10\nIII. Proposals for Legislation\nYou also asked, in the event that we determined that the FBI lacked\nthe authority to investigate police killings, that we advise whether\nauthorizing legislation can or should be sought. The question whether\nlegislation should be sought is a policy decision. However, if such\ninvestigations are to continue, legislation will be required. We see no\nconstitutional infirmity w ith either o f two legislative proposals that\nhave been considered in the past. First, the killing of a police officer\ncould be made a federal crime, as to which the FBI already possesses\ninvestigative authority under 28 U.S.C. \xc2\xa7 533(1). Second, specific inves\xc2\xad\ntigative authority for police killings could be added to the FBI jurisdic\xc2\xad\ntion conferred under 28 U.S.C. \xc2\xa7 533. Such authority could be condi\xc2\xad\ntioned upon a request for assistance by a local law enforcement agency,\nor it could be conferred in all police killing cases. We have no doubt\nabout the sufficiency of the federal interest in local law enforcement to\nenable Congress to proceed either by amendment to the criminal code\nor to \xc2\xa7 533.\nJo h n M. H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n9 In view o f our conclusion that 28 U.S.C. \xc2\xa7533(3) does not apply, we have no occasion to\ndeterm ine w hat particular action is necessary to invoke the powers under that section. We do note,\nhow ever, that the directive of Novem ber 1, 1970, charged only that the A ttorney General should use\n\xe2\x80\x9call appropriate investigative resources\xe2\x80\x9d (emphasis added) and did not purport to be an independent\nbasis o f investigative authonty pursuant to \xc2\xa7 533(3). W e should add, moreover, that although it is not\npossible conclusively to determine w hat was meant in the directive by \xe2\x80\x9cappropriate\xe2\x80\x9d resources, it does\nappear that the directive was thought to be the basis for investigations not previously within the FBI\'s\nrange o f operations. T hat is, we d o not believe that the directive was intended only to authorize FBI\ninvestigations where \xe2\x80\x9cappropriate\xe2\x80\x9d under existing statutory authority and agency practice. In light of\no u r conclusion, however, that investigations of non-federal offenses are outside the FBI\'s jurisdiction,\nwe would now read the directive merely to emphasize that FBI resources may be used in an\n\xe2\x80\x9cappropriate\xe2\x80\x9d case, e.g., where there is a reasonable likelihood of uncovering a violation o f federal\nlaw, and in an \xe2\x80\x9cappropriate" manner, e.g., as determ ined by law enforcement officials in their expertise\nand in light o f all the circumstances.\n10 M oreover, in the absense o f any authority under either \xc2\xa7 533(1) or \xc2\xa7 533(3) for the FBI to act\nupon a request by a state or local law enforcement official for investigative assistance, the form of the\nrequest, w hether written or oral, is o f course irrelevant.\n\n50\n\n\x0c'


b"August 22, 1978\n\n78-47\n\nMEMORANDUM OPINION FOR THE GENERAL\nCOUNSEL, GENERAL SERVICES\nADMINISTRATION\nFederal Excess Personal Property\xe2\x80\x94 Disposition Under\n\xc2\xa7 608 of the Foreign Assistance Act o f 1961 (22 U .S.C .\n\xc2\xa7 2358)\xe2\x80\x94 Effect of 40 U .S.C . \xc2\xa7 483(d)\n\nThis responds to your request for our opinion as to how \xc2\xa7 3(d) of Pub. Law\nNo. 94-519,1 90 Stat. 2454, 40 U.S.C. \xc2\xa7 483(d), affects Federal excess\npersonal property disposition under \xc2\xa7 608 of the Foreign Assistance Act of\n1961, 75 Stat. 442, as amended, 22 U.S.C. \xc2\xa7 2358. You contend that \xc2\xa7 3(d)\ngoverns the disposition of such property in connection with both grants and\nloans made by the Agency for International Development (AID) under \xc2\xa7 608.\nAID contends that \xc2\xa7 3(d) governs only grants. We conclude that AID\xe2\x80\x99s\ncontention is correct.\nThe Federal Property and Administrative Services Act of 1949, 63 Stat. 377,\nas amended, 40 U.S.C. \xc2\xa7 471 et seq., regulates the use and disposal of Federal\nexcess and surplus property. Excess property is property not required by a\nFederal Agency for its needs and the discharge of its responsibilities. 40 U.S.C.\n\xc2\xa7 472(e). General Services Administration (GSA) is required to make an\nAgency\xe2\x80\x99s excess property known to other Agencies for possible further use\nwithin the Federal Government. If no Agency requests the property it becomes\nsurplus, i.e ., \xe2\x80\x9c excess property not required for the needs and discharge of the\nresponsibilities of all Federal agencies.\xe2\x80\x9d 40 U.S.C. \xc2\xa7 472(g).\n\n'Public Law No. 94-519 am ended the Federal Property and A dm inistrative Services Act. Section\n3(d) relates only to personal property. A ccordingly, all references to property herein are to personal\nproperty, not real property.\n\n\x0cSection 3(d) provides that Federal Agencies may not furnish excess personal\nproperty to their grantees except pursuant to its provisions.2 It allows Agencies\nto furnish such property only to public agencies and nonprofit tax-exempt\norganizations under the conditions set forth therein.\nExcess property furnished pursuant to \xc2\xa7 608 is exempted from these\nconditions. However, such transfers may be made only insofar as the\nAdministrator of General Services determines that the property is not needed\nfor donation pursuant to \xc2\xa7 203(j) of the Federal Property and Administrative\nServices Act, 40 U.S.C. \xc2\xa7 484(j).3\nSection 608 authorizes establishment of a $5 million revolving fund for AID\nto acquire excess Government property for use in \xe2\x80\x9c United States-assisted\nprojects and programs.\xe2\x80\x9d Regarding the nature of the assistance to be provided\nunder this fund, \xc2\xa7 635(a), 22 U.S.C. \xc2\xa7 2395(a), reads, in pertinent part, as\nfollows:\nExcept as otherwise specifically provided in this Act [the Foreign\nAssistance Act], assistance under this Act may be furnished on a\ngrant basis or on such terms, including cash, credit, or other terms of\nrepayment . . . as may be determined to be best suited to the\nachievement of the purposes of this Act, and shall emphasize loans\nrather than grants wherever possible.\n\n2T he text o f \xc2\xa7 3(d) reads, in pertinent part, as follows:\nNotw ithstanding any other provisions o f law , Federal agencies are prohibited from\nobtaining excess personal property for purposes o f furnishing such property to grantees\no f such agencies except as follows:\n(1) U nder such regulations as the A dm inistrator (of G eneral Services] may\nprescribe, any Federal agency m ay obtain excess personal property for purposes of\nfurnishing it to any institution or organization which is a public agency or is\nnonprofit and exem pt from taxation under section 501 o f the Internal Revenue Code\no f 1954, and which is conducting a federally sponsored project pursuant to a grant\nm ade for a specific purpose w ith a specific term ination made: Provided, that\xe2\x80\x94\n(A) such property is to be furnished for use in connection with the grant; and\n(B) the sponsoring Federal agency pays an am ount equal to 25 percentum of\nthe original acquisition cost (except for costs o f care and handling) o f the\nexcess property furnished, such funds to be covered into the Treasury as\nm iscellaneous receipts.\n\n*****\n(2) U nder such regulations and restrictions as the A dm inistrator [of General\nServices] m ay prescribe, the provisions o f this subsection shall not apply to the\nfollow ing:\n(A) property furnished under section 608 o f the Foreign Assistance Act of\n1961, as amended, where and to the extent that the Administrator o f General\nServices determines that the property to be furnished under such Act is not\nneeded fo r donation pursuant to section 203(j) [40 U.S.C. \xc2\xa7 484(j)j o f this Act;\n\n*****\nT his paragraph shall not preclude any Federal agency [from] obtaining property and\nfurnishing it to a grantee o f that agency under paragraph (1) o f this subsection. [Emphasis\nadded.]\n\xe2\x96\xa0\xe2\x80\x99This provision regulates the donation o f surplus property to the States, territories, and\npossessions.\n\n190\n\n\x0cThe use of excess property is encouraged in foreign assistance programs.\nSection 102(a) of the Foreign Assistance Act, 22 U.S.C. \xc2\xa7 2151(a), reads in\npertinent part, \xe2\x80\x9c . . . to the maximum extent practicable . . . disposal of excess\nproperty . . . undertaken pursuant to this or any other Act, shall complement\nand be coordinated with [international development] assistance . . ..\xe2\x80\x99\xe2\x80\x99 Thus, the\nuse of excess property is sanctioned in \xc2\xa7 608 loan and grant programs. Further,\nthe legislative history of \xc2\xa7 608 states that as excess property is used, the\nrevolving fund is to be \xe2\x80\x9c replenished from the appropriation applicable to the\nparticular purpose of the assistance, i.e., development loans, development\ngrants, supporting assistance, etc.\xe2\x80\x9d S. Rept. No. 612, 87th Cong., 1st sess.\n30 (1961). [Emphasis added.]\nAID informs us that foreign countries acquire excess property under \xc2\xa7 608 by\npaying part of the moneys they receive under the foreign assistance- programs\ninto the revolving fund. Thus, in those cases, the amount of monetary\nassistance is decreased depending on the cost of the excess property acquired.\nThe acquisition of excess property by this method is particularly beneficial to\nforeign countries because they are only charged with the costs of administra\xc2\xad\ntion, rehabilitation of the property, handling, etc. See, Hearings on AlD 's\nExcess Property Program before a Subcommittee o f the House Committee on\n\nGovernment Operations, 91st Cong., 2d sess. 13-16 (1970) (1970 Hearing).\nThus, since excess property can be acquired for substantially less than new\nproperty, foreign assistance spending power is increased. This has been\nreferred to as \xe2\x80\x9c stretching the foreign aid dollars.\xe2\x80\x9d See, 1 970Hearing at 14, 24.\nAs indicated above, both foreign loan and grant programs may use excess\nproperty.\nUnder \xc2\xa7 608(b) excess property not exceeding $45 million (acquisition cost)\nmay be transferred to AID each fiscal year without GSA approval. However,\nwith respect to property exceeding that amount, GSA must first determine that\nit is not needed for donation pursuant to \xc2\xa7 203(j).\nThe difference between AID\xe2\x80\x99s and GSA\xe2\x80\x99s interpretations of \xc2\xa7 3(d) is that\nunder GSA\xe2\x80\x99s view AID may transfer excess property under either \xc2\xa7 608\xe2\x80\x99s loan\nor grant programs only if GSA first determines that the property is not needed\nfor donation pursuant to \xc2\xa7 203(j). While AID agrees with regard to \xc2\xa7 608\ngrants, it contends that GSA has no role in excess property transfers in \xc2\xa7 608\nloan transactions unless these transactions involve more than $45 million\n(original acquisition cost) of excess property in any fiscal year.\nGSA advances two arguments to support its interpretation. First, it asserts\nthat a principal purpose of \xc2\xa7 3(d) is to provide as much property as possible for\nuse by the States. Therefore, it concludes, it would be inconsistent with this\npurpose to read the law as not controlling excess'property disposition in \xc2\xa7 608\nloan transactions. It further argues that:\nIt is difficult to discern whether there is any difference between\nAID\xe2\x80\x99s grant program and their development loan program in the use\nof excess property because in both instances the property is given to\nthe foreign recipients.\n191\n\n\x0cHowever, GSA ignores the plain language and the legislative history of\n\xc2\xa7 3(d). That provision expressly deals only with excess property transfers to\ngrantees of Federal Agencies. Section 608\xe2\x80\x99s loan program deals with borrowers,\nnot grantees. Moreover, \xc2\xa7 3(d)\xe2\x80\x99s legislative history shows that it was primarily\nintended to regulate the Agency\xe2\x80\x99s practice of lending excess property to\norganizations receiving grants. H. Rept! No. 94-1429, 94th Cong., 2d sess. 3-4\n(1976); S. Rept. No. 94-1323, 94th Cong., 2d sess. 4-6 (1976). The foregoing\nreports expressed concern that this practice withdrew from circulation property\nthat otherwise would have been eventually used in surplus property programs.\nH. Rept. No. 94-1429, supra , at 7; S. Rept. No. 94-1323, supra, at 7. Plainly,\nCongress was concerned about property diverted from the surplus property\nprogram, but only insofar as this resulted from grantor Agencies lending excess\nproperty to their grantees. The excess property provisions of \xc2\xa7 3(d) were\nprimarily designed to meet this problem.4\nThere is no evidence in \xc2\xa7 3(d)\xe2\x80\x99s legislative history that Congress intended to\nabolish \xc2\xa7 608\xe2\x80\x99s mechanism covering both loans and grants, and replace it with a\nmechanism for utilizing excess property in connection with loans. It is a\nfamiliar principle of statutory construction that repeals by implication are\ndisfavored. When two statutes are capable of coexistence, both must be\nregarded as effective absent a clearly expressed congressional intention to the\ncontrary. Administrator, FAA v. Robertson, 422 U.S. 255 (1975); Morton v.\nMancari, 417 U.S. 535 (1974). An intention to repeal a statute must be clear\nand manifest. Morton v. Mancari, supra, at 551. This rule applies to partial\nrepeals as well as to complete ones. Regional Rail Reorganization Act Cases,\n419 U.S. 102, 134 (1974). Although Congress expressly restricted \xc2\xa7 608\xe2\x80\x99s\ndisposition of excess property in grant programs, there is no evidence that it\nalso intended to so restrict excess property use in \xc2\xa7 608\xe2\x80\x99s loan programs. Rather\nthe language of \xc2\xa7 3(d) and its legislative history point to a contrary intention. It\nmust be assumed that Congress did not intend to alter \xc2\xa7 608 as it applied to the\nuse of excess property in loan programs,\nWe conclude that \xc2\xa7 3(d) must be construed as affecting only the use of excess\nproperty in \xc2\xa7 608 grant programs.\nM\n\nary\n\nC. Law\n\nton\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n4See also. Recommendations o f the A d Hoc Interagency Study Group on Utilization o f Excess\nFederal Property (1974). reprinted in Distribution o f Federal Surplus Property to State and Local\nOrganizations: Hearings on H.R. 9152 and H.R. 9593 Before a Subcommittee o f the House\nC om m ittee on G overnm ent O perations, 94th C o n g ., 1st sess. 397 et seq. (1975). T hese\nrecom m endations led to the excess property provisions o f Pub. L. No. 94-519. The Ad Hoc\nInteragency Study G roup studied the practice o f grantor Agencies loaning excess property to\ngrantees. Thus, it is not unreasonable to assum e that this is the problem with w hich \xc2\xa7 3(d) sought to\ndeal.\n\n192\n\n\x0c"


b'February 24, 1977\n\n77-9\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nConflict of Interest\xe2\x80\x94Status of an Informal\nPresidential Advisor as a \xe2\x80\x9cSpecial Government\nEmployee\xe2\x80\x9d\n\nA question has arisen as to whether Mr. A should be regarded as a\nspecial Government employee for purposes of the Federal conflict-ofinterest laws. Generally, M r. A advises the President almost daily,\nprincipally on an informal basis. This essentially personal relationship\nwould not in itself result in Mr. A\xe2\x80\x99s being a Government employee or\nspecial Government employee. However, as explained in the latter part\no f this memorandum, Mr. A should be designated as a special Govern\xc2\xad\nment employee in connection with his work on a current social issue\nthat is o f concern to the Administration.\nThe term \xe2\x80\x9cemployee\xe2\x80\x9d is not defined in the conflict-of-interest laws,\nbut it was no doubt intended to contemplate an employer-employee\nrelationship as that term is understood in other areas of the law.\nPerhaps the most obvious source of a definition under Federal law is in\nthe civil service laws. For purposes of Title 5 of the United States\nCode, a person is regarded as an \xe2\x80\x9cofficer\xe2\x80\x9d or \xe2\x80\x9cemployee\xe2\x80\x9d of the United\nStates if he or she (1) is appointed in the civil service by a Federal\nofficer or employee; (2) is engaged in the performance of a Federal\nfunction under authoriy of law; and (3) is subject to the supervision of a\nFederal officer or employee while engaged in the duties of his or her\nposition. See 5 U.S.C. \xc2\xa7\xc2\xa72104, 2105. A review of our files and other\navailable material reveals that variants of these same three factors have,\nin fact, been utilized in one context or another under the conflict-ofinterest laws.\nFor example, the first criterion under the civil service test\xe2\x80\x94that the\nperson be appointed in the civil service 1\xe2\x80\x94is analogous to the definition\nof the term \xe2\x80\x9cspecial Government employee\xe2\x80\x9d for purposes of the con1\n\nT h e \xe2\x80\x9ccivil service\xe2\x80\x9d includes all appointive positions in the executive branch. 5 U.S.C.\n\n\xc2\xa7 2101 .\n\n20\n\n\x0cflict-of-interest laws: an officer or employee \xe2\x80\x9cwho is retained, designat\xc2\xad\ned, appointed, or employed\xe2\x80\x9d to perform duties not to exceed 130 out of\nthe next 365 calendar days. 18 U.S.C. \xc2\xa7 202(a). The quoted phrase\nconnotes a formal relationship between the individual and the G overn\xc2\xad\nment. See B. Manning, Federal Conflict of Interest Law, 27, 34 (1964).\nIn the usual case, this formal relationship is based on an identifiable act\nof appointment. Id.,2 However, an identifiable act of appointment may\nnot be absolutely essential for an individual to be regarded as an officer\nor employee in a particular case where the parties omitted it for the\npurpose of avoiding the application of the conflict-of-interest laws or\nperhaps where there was a firm mutual understanding that a relatively\nformal relationship existed. We are not aware that Mr. A has been\nofficially \xe2\x80\x9cretained, designated, appointed, or employed\xe2\x80\x9d as an adviser\nto the President or that there is any other basis for inferring a relatively\nformal relationship insofar as Mr. A \xe2\x80\x99s advising the President is con\xc2\xad\ncerned.\nThe second criterion under the civil service laws is that the person\nbe engaged in the performance of a Federal function under authority of\nlaw. It seems doubtful that Mr. A \xe2\x80\x99s essentially personal advice on a\nwide variety of issues would be regarded as a Federal function under\nthis test.\nThe third civil service factor\xe2\x80\x94that the individual work under the\nsupervision of a Federal officer or employee\xe2\x80\x94is closely related to the\nsecond. It has been of importance in the conflict-of-interest area primar\xc2\xad\nily in determining whether an individual is an independent contractor\nrather than an employee and therefore not subject to the conflict-ofinterest laws. For example, if a person is hired to conduct a study using\nhis own judgment and resources and then turn over the end product to\nthe agency, he would probably be regarded as an independent contrac\xc2\xad\ntor. On the other hand, if a person works on Government premises\nunder the direction of Government personnel and performs work of a\nkind normally handled by Government employees, he is probably an\nemployee. Manning, supra, at 32-33. The question is obviously one of\ndegree, but the distinction between an employee and an independent\ncontractor, based primarily on the element of supervision and the\nnature of the work, is well recognized in other areas of the law. See,\ne.g., United States v. Orleans, 425 U.S. 807 (1976) (tort claims); N L R B\nv. Hearst, 322 U.S. I l l (1944) (Labor). We have taken this same\napproach in the past under the conflict-of-interest laws. See also Man\xc2\xad\nning, supra, at 32-33. Again, given the largely personal relationship\nbetween the President and Mr. A, apparently based on mutual respect\nrather than an assignment of duties, it seems doubtful that Mr. A\nordinarily consults with the President under the latter\xe2\x80\x99s supervision,\n2 Appendix C to C hapter 735 o f the F ederal Personnel M anual provides detailed\nguidelines for agencies to follow in appointing consultants and o th er tem porary em ploy\xc2\xad\nees, principally to ensure that they are officially designated as special G overnm ent\nemployees. These guidelines o f course reinforce the requirem ent o f a formal relationship.\n\n21\n\n\x0cdirection, or control as that concept is applied in the conflict-of-interest\nand similar laws or engages in the type of work ordinarily performed\nby Governm ent employees.\nIt is our conclusion, for the reasons given above, that Mr. A does not\nhave to be designated as a special Government employee and abide by\nthe restrictions of the conflict-of-interest laws applicable to such em\xc2\xad\nployees solely by virtue of his informal consultations with the Presi\xc2\xad\ndent.\nThe conclusion is, for the most part, consistent with the position of\nProfessor Manning, a noted commentator on the conflict-of-interest\nlaws:\nOne does not become an \xe2\x80\x9cemployee of the United States\xe2\x80\x9d merely\nby voicing an opinion on government matters to a federal official\nat a cocktail party. The distinction may be shadowy in a particular\ncase, and each situation must be judged on its own facts. Formali\xc2\xad\nties can play an important part. In the ordinary situation, a person\nwill not be considered to be a consultant-employee if he does not\nbear a formal appointment, is not enrolled on the personnel roster\nof the relevant agency, has no government personnel file in his\nname, and has not been sworn in or signed the customary oath of a\ngovernment employee. O ther factors that might be relevant can be\nconjectured. Is the person\xe2\x80\x99s advice solicited frequently? Is it sought\nby one official, who may be a personal friend, or impersonally by a\nnumber of persons in a government agency that needs expert\ncounsel? D o meetings take place during office hours? Are they\nconducted in the government office, and does, perhaps, the adviser\nmaintain a desk or working materials in government facilities?\nManning, supra, at 29-30.\nThis conclusion is also consistent with the prior position of this\nOffice. By letter dated April 10, 1968, we advised the Acting Director\nof the Office of Foreign Direct Investments in the Department of\nCommerce that if he were to turn on occasion to a single expen or a\ngroup of such experts for informal advice on a particular regulation or\npolicy, that would not make the experts \xe2\x80\x9cemployees\xe2\x80\x9d for conflict-ofinterest purposes.\nAs mentioned earlier, Mr. A speaks with the President almost every\nday by telephone, and these discussions cover a wide range of policy\nissues. The passage just quoted from Professor Manning\xe2\x80\x99s book and our\n1968 memorandum both appear to attach some significance to the\nfrequency of consultation. But we do not believe the mere fact that Mr.\nA speaks with the President on a regular basis in itself alters the\nfundamentally personal nature of the relationship that is apparently\ninvolved here, just as Mrs. Carter would not be regarded as a special\nGovernm ent employee solely on the ground that she may discuss gov\xc2\xad\nernmental matters with the President on a daily basis.\n22\n\n\x0cMr. A, however, seems to have departed from his usual role o f an\ninformal adviser to the President in connection with his recent work on\na current social issue. Mr. A has called and chaired a number of\nmeetings that were attended by employees of various agencies, in rela\xc2\xad\ntion to this work, and he has assumed considerable responsibility for\ncoordinating the Administration\xe2\x80\x99s activities in that particular area. Mr.\nA is quite clearly engaging in a governmental function when he per\xc2\xad\nforms these duties, and he presumably is working under the direction or\nsupervision of the President. For this reason, Mr. A should be designat\xc2\xad\ned as a special Government employee for purposes of this work\xe2\x80\x94\nassuming that a good faith estimate can be made that he will perform\nofficial duties relating to that work for no more than 130 out of the\nnext 365 consecutive days. If he is expected to perform these services\nfor more than 130 days, he should be regarded as a regular employee.\nIn either case, he should be formally appointed and take an oath of\noffice. This formal designation would not necessarily affect the conclu\xc2\xad\nsion that Mr. A\xe2\x80\x99s other consultations with the President are o f a\npersonal rather than official nature. Should Mr. A assume governmental\nresponsibilities in other areas, as he has done with his work on the\nabove project, he should be regarded as a Government employee for\nthese other purposes as well.\nJohn M . H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n23\n\n\x0c'


b'Department of Transportation Authority to Exempt\nCanadian Truck Drivers From Criminal Liability\nfor Transporting Explosives\nThe Department of Transportation possesses the authority to issue a regulation that, under section\n845(a)(1) of title 18, would exempt Canadian truck drivers from criminal liability under section\n842(i) of that title.\nThe Department of Transportation, however, has not issued such a regulation, and therefore section\n842(i) liability would attach to a Canadian truck driver transporting explosives in the United States.\n\nFebruary 6, 2003\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF TRANSPORTATION\nAND\nTHE ACTING CHIEF COUNSEL\nBUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES\n\nWe have been asked by the Department of Transportation (\xe2\x80\x9cDoT\xe2\x80\x9d) and the\nBureau of Alcohol, Tobacco, Firearms, and Explosives (\xe2\x80\x9cATF\xe2\x80\x9d) to resolve a\ndispute regarding section 1123(b) of the Safe Explosives Act, Pub. L. No. 107296, 116 Stat. 2135, 2284 (2002) (the \xe2\x80\x9cAct\xe2\x80\x9d), which became effective January 24,\n2003.1 In particular, we have been asked to address the application of this provision to Canadian truck drivers who \xe2\x80\x9cship or transport\xe2\x80\x9d or \xe2\x80\x9creceive or possess\xe2\x80\x9d\nexplosives in interstate or foreign commerce. Because of the exceedingly short\ntime period we were given to provide our advice, we have limited our discussion\nto this particular fact situation.\nSection 1123(b) of the Act amended section 842(i) of title 18, United States\nCode, by adding several categories to the list of prohibited persons who may not\nlawfully \xe2\x80\x9cship or transport any explosive in interstate or foreign commerce\xe2\x80\x9d or\n\xe2\x80\x9creceive or possess any explosive which has been shipped or transported in\ninterstate or foreign commerce.\xe2\x80\x9d The existing law covered any person who was a\nfelon, a fugitive from justice, an unlawful user or addict of any controlled\nsubstance, or had been \xe2\x80\x9cadjudicated as a mental defective.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 842(i)\n(2000). The Act added three new categories of persons: aliens (excluding aliens\nlawfully admitted for permanent residence, as defined by section 101(a)(20) of the\nImmigration and Nationality Act, 8 U.S.C. \xc2\xa7 1101(a)(20), and four narrow categories of aliens present in the United States for specific purposes), persons\ndishonorably discharged from the armed forces, and former citizens of the United\nStates who have renounced their citizenship. Pub. L. No. 107-296, \xc2\xa7 1123(b), 116\nStat. at 2284. Section 1126 of the Act authorizes the Attorney General to grant\n1\n\nSee Homeland Security Act of 2002, Pub. L. No. 107-296, \xc2\xa7 4, 116 Stat. 2135, 2142 (2002).\n\n38\n\n\x0cDoT Authority to Exempt Canadian Truck Drivers From Criminal Liability\n\nrelief from this prohibition if he \xe2\x80\x9cdetermines that the circumstances regarding the\napplicability of section 842(i), and the applicant\xe2\x80\x99s record and reputation, are such\nthat the applicant will not be likely to act in a manner dangerous to public safety\nand that the granting of such relief is not contrary to the public interest.\xe2\x80\x9d 116 Stat.\nat 2285 (to be codified at 18 U.S.C. \xc2\xa7 845(b)(2)).\nSection 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\nsection 842(i). The relevant exemption here states that the provisions of section\n842(i) \xe2\x80\x9cshall not apply to . . . any aspect of the transportation of explosive\nmaterials via railroad, water, highway, or air which are regulated by the United\nStates Department of Transportation and agencies thereof, and which pertain to\nsafety.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 845(a)(1).\nThe question presented for resolution by our Office is whether the prohibition\nin section 842(i) on \xe2\x80\x9calien[s]\xe2\x80\x9d \xe2\x80\x9cship[ping] or transport[ing]\xe2\x80\x9d or \xe2\x80\x9creceiv[ing] or\npossess[ing]\xe2\x80\x9d explosives forbids Canadian truck drivers from driving explosives\ninto the United States. ATF posits that the answer to that question is \xe2\x80\x9cyes,\xe2\x80\x9d and\nthat the sole mechanism for these truckers to obtain relief from this prohibition is\nto apply to ATF for \xe2\x80\x9crelief from disabilities\xe2\x80\x9d under section 845(b), as amended.\nDoT, by contrast, argues that the exemption contained in section 845(a)(1)\nprovides an exemption from criminal liability for the Canadian truck drivers.\nFor the reasons set forth below, we conclude that DoT possesses the authority\nto issue a regulation that, under section 845(a)(1), would exempt Canadian truck\ndrivers from criminal liability under section 842(i). We further conclude, however,\nthat DoT has not issued such a regulation and therefore section 842(i) liability\nwould attach to a Canadian truck driver transporting explosives in the United\nStates.\nI.\nAs noted above, section 845(a) of title 18 provides exemptions to some of the\ncriminal prohibitions contained in chapter 40 of title 18, including the prohibition\ncontained in section 842(i).2 The relevant exemption states that the provisions of\nsection 842(i) \xe2\x80\x9cshall not apply to . . . any aspect of the transportation of explosive\nmaterials via railroad, water, highway, or air which are regulated by the United\nStates Department of Transportation and agencies thereof, and which pertain to\nsafety.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 845(a)(1) (2000). To decide whether section 845(a)(1)\nprovides an exemption from criminal liability for the Canadian truck drivers, we\n\n2\nSection 845(a)(1) does not apply to the criminal offenses statutorily excepted from the exemption.\nSee 18 U.S.C. \xc2\xa7 845(a)(1) (\xe2\x80\x9cExcept in the case of subsection (l), (m), (n), or (o) of section 842 and\nsubsections (d), (e), (f), (g), (h), and (i) of section 844 of this title, [chapter 40] shall not apply to . . .\nany aspect of the transportation . . . .\xe2\x80\x9d).\n\n39\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nfirst define the reach of the exemption and then discuss whether DoT has issued a\nregulation that falls within section 845(a)(1).\nA.\nThe precise contours of the exemption in section 845(a)(1) are not easy to\ndiscern from the statutory text. The exemption uses two plural verbs\xe2\x80\x94\xe2\x80\x9care\xe2\x80\x9d and\n\xe2\x80\x9cpertain\xe2\x80\x9d\xe2\x80\x94stating that the criminal provisions of chapter 40 \xe2\x80\x9cshall not apply to . . .\nany aspect of the transportation of explosive materials . . . which are regulated by\xe2\x80\x9d\nDoT \xe2\x80\x9cand which pertain to safety.\xe2\x80\x9d Plural verbs, of course, must correspond to a\nplural subject. And the only possible plural subject in section 845(a)(1) is the noun\n\xe2\x80\x9cmaterials.\xe2\x80\x9d3 A literal reading of this language would therefore lead to the\nconclusion that the exemption is triggered by any DoT regulation of the explosive\nmaterials in question. And, indeed, two courts have read the exemption this way.\nSee United States v. Illingworth, 489 F.2d 264, 265 (10th Cir. 1973) (\xe2\x80\x9cThe\nexception refers to materials which are regulated by the Department\xe2\x80\x9d); id. (\xe2\x80\x9cthe\ndynamite which Illingworth carried with him on the planes was . . . regulated\xe2\x80\x9d);\nUnited States v. Petrykievicz, 809 F. Supp. 794, 797 (W.D. Wash. 1992) (\xe2\x80\x9cA\nproper grammatical reading of the exception results in an interpretation that\nprovides that if the explosive materials transported via air \xe2\x80\x98are\xe2\x80\x99 regulated, the\nexception applies.\xe2\x80\x9d); id. at 799 (\xe2\x80\x9cSection 845 of Title 18 excludes the application\nof Chapter 40 of Title 18 if the explosive materials being transported are regulated\nby the Department of Transportation.\xe2\x80\x9d) (emphasis added).\nYet, 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\nthis reading of section 845(a)(1). First, it is possible that construing section\n845(a)(1) as outlined above would render many of the substantive criminal\nprohibitions of chapter 40 meaningless. As the Western District of Washington has\npointed out, this reading could \xe2\x80\x9cresult[] in an interpretation that provides that if the\nexplosive materials transported . . . \xe2\x80\x98are\xe2\x80\x99 regulated [by DoT], the exception\napplies.\xe2\x80\x9d 809 F. Supp. at 797. But, DoT, of course, regulates all, or nearly all,\nexplosives in some fashion, for example, by regulating the explosives\xe2\x80\x99 \xe2\x80\x9clabeling,\npackaging, mode of transportation, placarding and shipping papers.\xe2\x80\x9d Id.; accord\nDoT Submission, Tab 1, at 2\xe2\x80\x933. Therefore, to construe section 845(a)(1) to exempt\nan individual from criminal liability for transporting explosives simply because the\nexplosives themselves were in some way regulated by DoT would be to \xe2\x80\x9ceviscerate[]\xe2\x80\x9d the criminal provisions of chapter 40. United States v. Fiorillo, 186 F.3d\n3\nDoT suggests that \xe2\x80\x9cpertain\xe2\x80\x9d could correspond to \xe2\x80\x9cagencies.\xe2\x80\x9d DoT Submission, Tab 3, at 5. But\nthis construction does not account for the fact that the full text of the amendment reads \xe2\x80\x9cand which\npertain to safety.\xe2\x80\x9d The phrase \xe2\x80\x9cthe United States Department of Transportation and agencies thereof,\nand which pertain to safety\xe2\x80\x9d simply does not express the idea that the agencies must pertain to safety.\nMoreover, it is unclear that such a construction would have limiting effect because we are uncertain\nwhether the jurisdiction of any DoT agency could be characterized as unrelated to safety.\n\n40\n\n\x0cDoT Authority to Exempt Canadian Truck Drivers From Criminal Liability\n\n1136, 1153 (9th Cir. 1999). Such a construction would mean, for example, that an\nindividual who transported stolen explosives, knowing they were stolen, in\nviolation of section 842(h) of title 18, would not be liable if DoT had a regulation\nspecifying how explosives should be stored. Cf. id. at 1153. Under such a reading,\neven a single DoT regulation concerning explosives would mean that no one\nwould ever be liable for transporting explosives in violation of chapter 40.\nSecond, construing section 845(a)(1) as outlined above could lead to the opposite, yet equally absurd, conclusion that the exemption from criminal liability has\nno meaning. In the Antiterrorism and Effective Death Penalty Act of 1996,\nCongress amended section 845(a)(1) to add the phrase \xe2\x80\x9cand which pertain to\nsafety.\xe2\x80\x9d See Pub. L. No. 104-132, \xc2\xa7 605(1)(B), 110 Stat. 1214, 1290 (1996). Read\nliterally, therefore, the exemption applies only to any \xe2\x80\x9caspect of the transportation\nof explosive materials . . . [(a)] which are regulated by the Department of Transportation . . . and [(b)] which pertain to safety.\xe2\x80\x9d While it might make sense to refer\nto \xe2\x80\x9cexplosive materials\xe2\x80\x9d that \xe2\x80\x9care\xe2\x80\x9d regulated by DoT, it is not at all clear that there\nis any content to the category of \xe2\x80\x9cexplosive materials\xe2\x80\x9d \xe2\x80\x9cwhich pertain to safety.\xe2\x80\x9d\nMoreover, because the exemption is phrased conjunctively, the exemption would\napply only if the materials are both regulated by DoT and pertain to safety.\nBecause the latter category is either empty or vanishingly small, to read section\n845(a)(1) according to its literal terms is to drain the 1996 amendment to that\nsection of virtually all meaning.\nWe cannot believe that Congress intended either of these absurd results.4 See\nUnited States v. X-Citement Video, Inc., 513 U.S. 64, 70\xe2\x80\x9371 (1994). Instead, we\nbelieve that the incoherence of the exemption as written is likely the result of a\nmere scrivener\xe2\x80\x99s error. In this case, we believe the error was Congress\xe2\x80\x99s failure to\ninclude an \xe2\x80\x9cs\xe2\x80\x9d at the end of the word \xe2\x80\x9caspect.\xe2\x80\x9d5 Thus, we believe that the exemp4\n\nIt is worth noting that the two reported decisions that have construed section 845(a)(1) such that\nthe operative provision is DoT\xe2\x80\x99s regulation of the explosive materials were decided before the 1996\namendment to the statute. These courts were therefore not faced with the construction of the \xe2\x80\x9cand\nwhich pertain to safety\xe2\x80\x9d language. See United States v. Illingworth, 489 F.2d 264, 265 (10th Cir. 1973);\nUnited States v. Petrykievicz, 809 F. Supp. 794, 797 (W.D. Wash. 1992).\n5\nAlternatively, the statutory confusion could be the result of a \xe2\x80\x9cconjugator\xe2\x80\x99s error\xe2\x80\x9d\xe2\x80\x94that is, the\ndraftsman of the original exemption may have incorrectly conjugated the verb \xe2\x80\x9cto be,\xe2\x80\x9d choosing the\nplural form \xe2\x80\x9care\xe2\x80\x9d rather than the singular \xe2\x80\x9cis\xe2\x80\x9d to correspond to the singular subject \xe2\x80\x9caspect.\xe2\x80\x9d Indeed,\nATF\xe2\x80\x99s regulations implementing this section have interpreted the statutory provision this way:\nExcept for the [prohibitions relating to unmarked plastic explosives and reporting of\nplastic explosives], this part does not apply to:\n(1) Any aspect of the transportation of explosive materials via railroad, water,\nhighway, or air which is regulated by the U.S. Department of Transportation and\nits agencies, and which pertains to safety.\n27 C.F.R. \xc2\xa7 55.141(a) (2002) (emphasis added). We recognize that this reading implies that Congress\nperpetuated its original error when it added the phrase \xe2\x80\x9cand which pertain to safety.\xe2\x80\x9d When Congress\namended the statute in 1996, it may simply have followed the verb form chosen by the original\ndraftsman. We note in this regard that the House version of the bill contained the word \xe2\x80\x9cpertains,\xe2\x80\x9d H.R.\nRep. No. 104-383, at 19 (1995) (setting forth House version), whereas the version adopted at\n\n41\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\ntion is more properly read to say that certain provisions of chapter 40, including\nsection 842(i), as amended, \xe2\x80\x9cshall not apply to . . . any aspects of the transportation of explosive materials via railroad, water, highway, or air which are regulated\nby the United States Department of Transportation and agencies thereof, and\nwhich pertain to safety.\xe2\x80\x9d\nRead this way, the exemption focuses on the aspects of the transportation of\nexplosive materials that DoT regulates rather than on the materials themselves.\nThis is essentially the reading of section 845(a)(1) adopted by the court in United\nStates v. Scharstein, 531 F. Supp. 460, 466 (E.D. Ky. 1982) (\xe2\x80\x9cThe key word in\nconstruing the meaning of \xc2\xa7 845 is the word \xe2\x80\x98aspect.\xe2\x80\x99\xe2\x80\x9d). In addition, the only\nlegislative history on the exemption supports the construction of the statute that\nfocuses on the \xe2\x80\x9caspects\xe2\x80\x9d of transportation, rather than on the \xe2\x80\x9cmaterials\xe2\x80\x9d transported. See H.R. Rep. No. 91-1549, at 4047 (1970) (\xe2\x80\x9cThis chapter is not meant to\naffect aspects of the transportation of explosive materials regulated by the\nDepartment of Transportation.\xe2\x80\x9d) (emphasis added). This reading is further\nsupported by the 1996 amendment, which\xe2\x80\x94because there is no meaning to a\ncategory of \xe2\x80\x9cexplosive materials . . . which pertain to safety\xe2\x80\x9d\xe2\x80\x94makes clear that\nCongress was referring to the aspects of transportation that are regulated, not the\nexplosive materials themselves. Finally, although the affected agencies did not\naddress this issue specifically in their submissions to this Office, they seem to\nagree that the focus of the section 845(a)(1) exemption is on the \xe2\x80\x9caspects\xe2\x80\x9d of\ntransportation that are regulated. See DoT Submission, Tab 1, at 5 (\xe2\x80\x9cIt is these\n\xe2\x80\x98aspects\xe2\x80\x99 of transportation in commerce that [Research and Special Programs\nAdministration] believes are excepted from the prohibitions in 18 U.S.C.\n\xc2\xa7 842(a)\xe2\x80\x93(k).\xe2\x80\x9d); id., Tab 2, at 4 (\xe2\x80\x9cFrom a legal point of view, the critical issue is\nthe meaning of the term \xe2\x80\x9cany aspect\xe2\x80\x9d in \xc2\xa7 845(a)\xe2\x80\x9d); ATF Submission at 4 (\xe2\x80\x9cthe\nexception in section 845(a)(1) applies only to those aspects of transportation\nrelating to safety\xe2\x80\x9d); id. at 13 (\xe2\x80\x9cSection 845(a)(1) refers to any aspect of transportation \xe2\x80\x98regulated by\xe2\x80\x99 DoT \xe2\x80\x98which pertain to safety.\xe2\x80\x99\xe2\x80\x9d).\nThus, we believe that section 845(a)(1) is best read to say that certain provisions of chapter 40, including section 842(i), as amended, \xe2\x80\x9cshall not apply to . . .\nany aspects of the transportation of explosive materials via railroad, water,\nhighway, or air which are regulated by the United States Department of Transportation and agencies thereof, and which pertain to safety.\xe2\x80\x9d Accordingly, the\nexemption is triggered only when (1) DoT has regulated relevant \xe2\x80\x9caspects of the\ntransportation of explosive materials,\xe2\x80\x9d and when (2) those regulated aspects\n\xe2\x80\x9cpertain to safety.\xe2\x80\x9d We address these requirements in reverse order.\n\nconference contained the word \xe2\x80\x9cpertain,\xe2\x80\x9d H.R. Conf. Rep. No. 104-518, at 79 (1996). Whether the error\nis a \xe2\x80\x9cscrivener\xe2\x80\x99s\xe2\x80\x9d or a \xe2\x80\x9cconjugator\xe2\x80\x99s\xe2\x80\x9d error does not affect our analysis.\n\n42\n\n\x0cDoT Authority to Exempt Canadian Truck Drivers From Criminal Liability\n\nB.\nThe phrase \xe2\x80\x9cand which pertain to safety\xe2\x80\x9d was added to section 845(a)(1) by\nsection 605(1)(B) of the Antiterrorism and Effective Death Penalty Act of 1996,\nPub. L. No. 104-132, 110 Stat 1214, 1290 (1996). ATF argues that \xe2\x80\x9csafety\xe2\x80\x9d within\nsection 845(a)(1) is limited to safety in the sense of preventing accidents. See ATF\nSubmission at 11 (\xe2\x80\x9cDoT statutes are designed to regulate the safe transportation of\nhazardous materials, such as explosives, while in transit and in commerce. These\nstatutes . . . primarily supplement State regulatory schemes to promote highway\nsafety. This is reflected in statutes requiring drivers to be knowledgeable and\nqualified to operate motor vehicles, testing, certification, and so forth.\xe2\x80\x9d); id. (the\nrisk DoT regulates is the \xe2\x80\x9cgeneral safety and fitness of the operator\xe2\x80\x9d). DoT\ncontends that \xe2\x80\x9csafety\xe2\x80\x9d should be read to include security, i.e., national security\nconcerns. See DoT Submission, Tab 1, at 1.\nWe believe that the term \xe2\x80\x9csafety\xe2\x80\x9d as it is used in section 845(a)(1) includes\nsecurity concerns, including the risk to national security posed by drivers transporting explosives. DoT\xe2\x80\x99s jurisdiction extends to both safety and security.\nCongress has authorized the Secretary of Transportation to \xe2\x80\x9cprescribe regulations\nfor the safe transportation, including security, of hazardous material in intrastate,\ninterstate, and foreign commerce.\xe2\x80\x9d 49 U.S.C. \xc2\xa7 5103(b) (emphasis added). The\nclause \xe2\x80\x9cincluding security\xe2\x80\x9d was added by section 1711(a) of the Homeland\nSecurity Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2319 (2002). The use\nof the word \xe2\x80\x9cincluding\xe2\x80\x9d indicates that Congress believed security is an element of\nsafety.\nMoreover, Congress has already assigned DoT a role in assessing the national\nsecurity risk posed by individuals transporting hazardous materials. In section\n1012 of the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 271, 397 (2001),\nCongress amended portions of the statutes governing the issuance of licenses for\nthose who transport hazardous materials by motor vehicles. Specifically, Congress\nprohibited states from issuing commercial driver\xe2\x80\x99s licenses for transporting\nhazardous materials (\xe2\x80\x9chazmat\xe2\x80\x9d licenses) \xe2\x80\x9cunless the Secretary of Transportation\nhas first determined . . . that the individual does not pose a security risk warranting\ndenial of the license.\xe2\x80\x9d 49 U.S.C. \xc2\xa7 5103a(a)(1) (Supp. I 2002) (emphasis added).\nUnder this provision, the Attorney General conducts the background check, id.\n\xc2\xa7 5103a(c), but the Secretary of Transportation makes the determination regarding\nthe security risk, id. \xc2\xa7 5103a(a)(1). Although DoT, through the Transportation\nSecurity Administration (\xe2\x80\x9cTSA\xe2\x80\x9d), has not yet implemented this statutory scheme,\nsee DoT Submission, Tab 6, at 1, the grant of authority from Congress is powerful\nevidence that Congress believes DoT has a role to play with respect to assessing\nrisks to national security. Accordingly, we believe that a DoT regulation addressing the security aspects of the transportation of explosive materials, including an\nassessment of the risk to national security posed by drivers, could be one \xe2\x80\x9cwhich\npertain[s] to safety\xe2\x80\x9d within the meaning of section 845(a)(1).\n\n43\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nC.\nWe next address what is meant by the clause \xe2\x80\x9caspect[s] of the transportation of\nexplosive materials . . . which are regulated by the United States Department of\nTransportation.\xe2\x80\x9d This clause raises two interpretive questions: What is meant by\n\xe2\x80\x9caspect[s] of transportation\xe2\x80\x9d?; and what is meant by \xe2\x80\x9cwhich are regulated by\xe2\x80\x9d\nDoT? We again address these questions in reverse order.\nSection 845(a)(1) states that the provisions of chapter 40 shall not apply to \xe2\x80\x9cany\naspect[s] of the transportation of explosive materials . . . which are regulated by\xe2\x80\x9d\nDoT \xe2\x80\x9cand which pertain to safety.\xe2\x80\x9d This statutory language admits of two possible\nreadings. The first, and we believe the most natural, reading is to say that the\nprovisions of chapter 40 do not apply to \xe2\x80\x9cany aspect[s] of the transportation of\nexplosive materials which are\xe2\x80\x9d in fact, presently being \xe2\x80\x9cregulated by\xe2\x80\x9d DoT. That\nis, for the exemption to apply, DoT must have issued regulations addressing the\nrelevant \xe2\x80\x9caspect[s]\xe2\x80\x9d of transportation. But there is another possible reading. The\nexemption might be read to apply to \xe2\x80\x9cany aspect[s]\xe2\x80\x9d of the safe transportation of\nexplosive materials which are within DoT\xe2\x80\x99s regulatory jurisdiction, even if DoT\nhas not actually exercised its jurisdiction by regulating in the area. Thus, \xe2\x80\x9caspect[s] . . . which are regulated\xe2\x80\x9d could be read to mean \xe2\x80\x9caspect[s] which are within\nDoT\xe2\x80\x99s regulatory competence.\xe2\x80\x9d As discussed previously, we believe that the safe\nand secure transportation of explosive materials lies within DoT\xe2\x80\x99s regulatory\ncompetence. Thus, if the latter interpretation of the statutory language were\ncorrect, DoT\xe2\x80\x99s regulatory jurisdiction over the safe and secure commercial\ntransportation of hazardous materials would be essentially exclusive; even without\nactually regulating any aspect of the safe transportation of hazardous materials,\nDoT would have pre-empted the field. We are reluctant to accept this broad\ninterpretation of section 845(a)(1). To accept it would be to eviscerate the criminal\nprovisions of chapter 40 and the Attorney General\xe2\x80\x99s prosecutorial and regulatory\nauthority, see 18 U.S.C. \xc2\xa7 847,6 to enforce those provisions, at least as they apply\nto commercial transportation. Such a construction would run afoul of the \xe2\x80\x9cwell\nestablished [principle] that when two regulatory systems are applicable to a certain\nsubject matter, they are to be reconciled and, to the extent possible, both given\neffect.\xe2\x80\x9d Pennsylvania v. Interstate Commerce Comm\xe2\x80\x99n, 561 F.2d 278, 292 (D.C.\nCir. 1977); accord FTC v. Ken Roberts Co., 276 F.3d 583, 593 (D.C. Cir. 2001)\n(\xe2\x80\x9cBecause we live in an \xe2\x80\x98age of overlapping and concurring regulatory jurisdiction,\xe2\x80\x99 a court must proceed with the utmost caution before concluding that one\nagency may not regulate merely because another may.\xe2\x80\x9d) (internal citations\nomitted). Although Congress may certainly grant one agency exclusive jurisdiction over an area of federal regulation, we are loath to infer such a sweeping grant\n6\n\nSee Homeland Security Act of 2002, Pub. L. No. 107-296, \xc2\xa7 1111(c)(1), 116 Stat. 2135, 2275\n(2002) (transferring the authorities of the Secretary of Treasury with regard to ATF to the Attorney\nGeneral).\n\n44\n\n\x0cDoT Authority to Exempt Canadian Truck Drivers From Criminal Liability\n\nof authority, which here even displaces criminal prosecutorial authority, without a\nmore precise statement from Congress. Accordingly, we believe that the section\n845(a)(1) exemption is best read as applying only when DoT has actually regulated some aspect of the safe transportation of explosive materials. Cf. Chao v.\nMallard Bay Drilling, Inc., 534 U.S. 235, 241 (2002) (interpreting preemption\nprovision of Occupational Safety and Health Act such that \xe2\x80\x9cmere possession by\nanother federal agency of unexercised authority to regulate certain working\nconditions is insufficient to displace [the Occupational Safety and Health Administration]\xe2\x80\x99s jurisdiction\xe2\x80\x9d).\nOur second interpretive question asks what is meant by the \xe2\x80\x9caspect[s]\xe2\x80\x9d of the\nsafe transportation of explosives that are regulated by DoT. In interpreting this\nprovision we must ask whether an exemption from criminal liability obtains\nwhenever DoT has actually regulated any aspect of the safe transportation of\nexplosive materials or whether the exemption prevails only when DoT has\nregulated the particular aspect of the safe transportation of explosive materials\nthat prompted Congress to enact the criminal statute from which the exemption is\nsought. We believe that the latter interpretation is the better one.\nThis reading provides a link between the criminal liability imposed by section\n842(i) and the exemption from this liability found in section 845(a)(1). We believe\nsuch a link is necessary because it is highly unlikely that Congress would have\ncriminalized a particular aspect of the transportation of explosive materials\xe2\x80\x94here,\nthe threat to security posed by the driver\xe2\x80\x94and then provided a broad exemption\nfrom this criminal liability whenever DoT regulates any aspect of the safe\ntransportation of explosive materials, even if the regulated aspect is not one that\npertains to the threat Congress addressed in the criminal prohibition. This reading\nwould mean, for example, that if DoT had issued only one regulation pertaining to\nthe safe and secure transport of explosive materials\xe2\x80\x94say, a regulation requiring\nexplosive materials to be locked up at all times during transport to prevent theft\xe2\x80\x94\nno one, or at least no commercial driver, could be liable for any offense under\nchapter 40 concerning the transportation of explosives. We believe that this\nconstruction reads too much into section 845(a)(1).\nInstead, we believe that section 845(a)(1) is more properly construed to provide\nrelief from criminal liability whenever DoT has regulated the particular aspect of\nthe safe transport of explosive materials that Congress sought to regulate through\ncriminal liability. That is, section 845(a)(1)\xe2\x80\x99s immunity is limited to situations\nwhere an individual is subject to DoT regulations regarding the activity covered\nby the criminal provision. Reading the statute this way ascribes to the exemption a\nperfectly reasonable purpose: to eliminate wasteful duplication in the enforcement\nefforts of federal agencies, and to prevent the regulated community from having to\ncomply with two sets of potentially conflicting regulations concerning the same\naspect of transportation. This reading also ensures that every person transporting\nexplosives will be covered by one of the two alternative federal schemes (but not\nboth): the criminal prohibition contained in section 842(i) or the regulations issued\n\n45\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nby DoT. The alternative reading, by contrast, would ascribe to the statute the\nstartling purpose of creating a blanket immunity from prosecution for any criminal\nexplosives offense regarding the transportation of explosives, even if DoT had\nregulated only certain limited, unrelated, aspects of the safe transportation of\nexplosives. We are reluctant to ascribe to Congress such an unusual intent without\nmore explicit direction. We therefore conclude that the section 845(a)(1) exemption is available only where DoT has regulated the particular aspect of the\ntransportation of explosive materials with which Congress was concerned in\npassing the criminal provision from which relief is sought.\nWhile not directly binding on the question before us, we note that our conclusion is consistent with the conclusion reached by the Supreme Court in Chao v.\nMallard Bay Drilling, Inc., 534 U.S. 235 (2002).7 In Chao, the Court examined a\npreemption provision contained in the Occupational Safety and Health Act of 1970\n(\xe2\x80\x9cOSH Act\xe2\x80\x9d). The OSH Act, which is enforced by the Occupational Safety and\nHealth Administration (\xe2\x80\x9cOSHA\xe2\x80\x9d), imposes a duty on covered employers to\nprovide working conditions that \xe2\x80\x9c\xe2\x80\x98are free from recognized hazards that are\ncausing or are likely to cause death or serious bodily harm\xe2\x80\x99\xe2\x80\x9d to their employees, as\nwell as an obligation to comply with safety standards promulgated by the Secretary of Labor.\xe2\x80\x9d Id. at 240\xe2\x80\x9341 (quoting 29 U.S.C. \xc2\xa7 654(a)(1)). However, the Act\ncontains the following preemption provision: \xe2\x80\x9c[n]othing in this [Act] shall apply to\nworking conditions of employees with respect to which other Federal agencies . . .\nexercise statutory authority to prescribe or enforce standards or regulations\naffecting occupational safety and health.\xe2\x80\x9d 29 U.S.C. \xc2\xa7 653(b)(1) (2000).\nIn Chao, OSHA had cited a drilling company for violations of the OSH Act\nthat occurred while the company was drilling a well in the territorial waters of\nLouisiana. The drilling company argued that OSHA\xe2\x80\x99s jurisdiction was preempted by section 653(b)(1) of title 29 because the Coast Guard had regulated some\naspects of occupational safety and health on vessels in navigable waters. The\nCourt disagreed, holding that \xe2\x80\x9cminimal exercise of some authority over certain\nconditions on vessels\xe2\x80\x9d would not trigger the preemption provision. Chao, 534\nU.S. at 241. Instead, the Court held that OSHA\xe2\x80\x99s jurisdiction was preempted\nonly if the working conditions at issue in a given case were the \xe2\x80\x9cparticular ones\n\xe2\x80\x98with respect to which\xe2\x80\x99 another federal agency has regulated.\xe2\x80\x9d Id. (quoting 29\nU.S.C. \xc2\xa7 653(b)(1)).\nChao, of course, is not dispositive in the instant case because the language of\nthe preemption provision in section 653(b)(1) of title 29 differs from the language\n\n7\nIndeed, DoT\xe2\x80\x99s Federal Motor Carrier Safety Administration has conceded this point. DoT Submission, Tab 2, at 4 (\xe2\x80\x9cThe term \xe2\x80\x98any aspect\xe2\x80\x99 could also mean that ATF has no jurisdiction over \xe2\x80\x98any\naspect\xe2\x80\x99 of the safe transportation of explosives regulated by DoT, but may apply the prohibitions of\nSec. 1123 that are not covered by \xe2\x80\x98any aspect\xe2\x80\x99 of the DoT program. Since DoT does not directly\nregulate drivers by nationality, this would allow ATF to enforce the prohibition on aliens. [This]\nposition is consistent with the Supreme Court\xe2\x80\x99s decision\xe2\x80\x9d in Chao).\n\n46\n\n\x0cDoT Authority to Exempt Canadian Truck Drivers From Criminal Liability\n\nin section 845(a)(1) of title 18. Yet we do not believe that there is a great deal of\ndistance between the statutory language at issue in Chao (\xe2\x80\x9c[n]othing in this [Act]\nshall apply to working conditions of employees with respect to which other\nFederal agencies . . . exercise statutory authority\xe2\x80\x9d) and the language at issue here\n(the provisions of chapter 40 \xe2\x80\x9cshall not apply to any aspect[s] of the transportation\nof explosive materials . . . which are regulated by\xe2\x80\x9d DoT). Both, we believe, are\nbest read to suggest congruence between the general statutory requirement and the\nregulation that purports to preempt it. Moreover, our reading is consistent with the\nCourt\xe2\x80\x99s express desire to avoid \xe2\x80\x9clarge gaps\xe2\x80\x9d in the enforcement of the regulatory\nscheme. Chao, 534 U.S. at 245 n.9 (noting that to construe the preemption\nprovision otherwise \xe2\x80\x9cwould mean that if the Coast Guard regulated marine toilets\non [the vessel in question] and nothing more, any OSHA regulation of the vessel\nwould be pre-empted\xe2\x80\x9d). This principle applies with particular force in light of\nCongress\xe2\x80\x99s manifest concern with shoring up the nation\xe2\x80\x99s defenses after the events\nof September 11. See, e.g., USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat.\n272, 397 (2001); Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135\n(2002).\nFor these reasons, we believe there must be more than an attenuated link between the DoT regulation that seeks to invoke the section 845(a)(1) exemption and\nthe activity prohibited under chapter 40. We believe that the section 845(a)(1)\nexemption is triggered only when DoT has regulated the particular \xe2\x80\x9caspect[s] of\nthe [safe] transportation of explosive materials\xe2\x80\x9d that are criminalized by section\n842(i), as amended. By passing section 842(i), as amended, Congress identified a\npresumptive security threat posed by allowing certain categories of persons to\ntransport explosives, and regulated that threat through criminal liability, subject to\nrelief after satisfactory completion of a background check. It would eviscerate this\nstatutory scheme to conclude that a regulation completely unrelated to the\nprohibition would provide immunity from criminal liability under this section.\nBecause section 842(i) criminalizes the transportation of explosives by specified\ncategories of persons, we believe that the section 845(a)(1) exemption applies only\nif DoT has, in fact, regulated the security risk posed by the transportation of\nexplosives by these categories of persons.\nD.\nWe next address whether DoT has regulated the security risk posed by the\ntransportation of explosives by the categories of persons listed in section 842(i).\nThe only specific regulation that DoT points to in this regard is that in 1988 DoT\n\xe2\x80\x9cdetermined that commercial drivers\xe2\x80\x99 license[s] issued by Canadian Provinces and\nTerritories in conformity with the Canadian National Safety Code are in accordance with the standards of [49 C.F.R. Part 383].\xe2\x80\x9d DoT Submission, Tab 2, at 2\n(quoting 49 C.F.R. \xc2\xa7 383.23(b) n.1). Part 383 is entitled \xe2\x80\x9cCommercial driver\xe2\x80\x99s\nlicense standards; requirements and penalties.\xe2\x80\x9d But nothing in that part regulates\n\n47\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nthe security threat posed by a particular driver. Moreover, DoT\xe2\x80\x99s determination in\n1988 that Canadian commercial drivers\xe2\x80\x99 licenses satisfied DoT regulations predated the requirement in the USA PATRIOT Act that domestic hazmat licenses be\nissued only after DoT has determined that the applicant does not pose a security\nrisk. See supra p. 43 (discussing section 5103a(a)(1) of title 49, as amended, which\nprohibits states from issuing commercial driver\xe2\x80\x99s licenses for transporting\nhazardous materials \xe2\x80\x9cunless the Secretary of Transportation has first determined . . . that the individual does not pose a security risk warranting denial of the\nlicense\xe2\x80\x9d). Thus, although DoT determined in 1988 that Canadian commercial\ndrivers\xe2\x80\x99 licenses satisfied DoT regulations, that determination did not include an\nassessment of the security review, if any, conducted by Canadian provinces\nbecause there was no U.S. equivalent at the time.\nDoT does not currently perform any such assessment of Canadian hazmat\nlicensees,8 nor has DoT officially endorsed any Canadian background check\nsystem that may already be in place.9 Thus, we conclude that DoT has not\nregulated the security risk posed by the transportation of explosives by the relevant\ncategory of persons in section 842(i)\xe2\x80\x94here, aliens.10\nAccordingly, we do not believe that the regulations cited by DoT have actually\nregulated the \xe2\x80\x9caspect of the transportation of explosive materials\xe2\x80\x9d that is criminalized by section 842(i), as amended, in a way that would allow the Canadian truck\n\n8\nThe provisions of the USA PATRIOT Act that require DoT to perform background checks before\na person may receive a license to transport hazardous materials, see 49 U.S.C. \xc2\xa7 5103a (Supp. I 2002),\nare triggered only by an individual\xe2\x80\x99s application for a license issued by a U.S. state. They do not apply\nto persons holding Canadian hazmat licenses; nor may persons holding Canadian licenses apply for\nlicenses issued by U.S. states. See 49 C.F.R. \xc2\xa7 383.21 & 383.23(b) n.1 (2001). We are informed that\nDoT is working with the Canadian government to establish a procedure regarding background checks\nfor Canadian hazmat licensees, but such a procedure is not currently in place. See DoT Submission,\nTab 7, at 1.\n9\nWe are informed, for example, that Quebec requires all drivers (Canadian and U.S.) transporting\nexplosives in Quebec to obtain a general explosives permit, and that this permitting process includes a\n\xe2\x80\x9ccriminal background check and security review\xe2\x80\x9d of the driver. DoT Submission, Tab 2, at 3. DoT has\nnot indicated that any other Canadian province conducts a similar security review; nor has DoT\ndetermined that the security review conducted by Quebec is acceptable to DoT or similar to that which\nwill be performed under section 5103a. See DoT Submission, Tab 7, at 1 (\xe2\x80\x9cTransport Canada has . . .\nproposed early and effective equivalency programs for background checks of drivers, but [has] not\nimplemented the programs because [it has] not yet received an official USG endorsement.\xe2\x80\x9d).\n10\nThis is not to say, however, that a DoT regulation that would trigger the section 845(a)(1) exemption would have to be identical to the scheme put in place by Congress in section 845(b). To construct a\nhypothetical, we imagine that, before the passage of the USA PATRIOT Act, DoT could have\naddressed the security risk posed by felons, see 18 U.S.C. \xc2\xa7 842(i)(1), by promulgating a regulation that\nallowed certain types of non-violent felons to possess hazmat licenses without going through a\nbackground check. This regulation would not have been identical to the scheme Congress created for\ndealing with the security risk posed by felons in section 845(b) of title 18, but may well have been a\nsufficient regulation to allow a non-violent felon to take advantage of the exemption contained in\nsection 845(a)(1).\n\n48\n\n\x0cDoT Authority to Exempt Canadian Truck Drivers From Criminal Liability\n\ndrivers at issue here to take advantage of the section 845(a)(1) exemption from\ncriminal liability.11\nII.\nWe recognize that our resolution of the question presented to us is not free from\ndoubt. To invoke an over-used, but apt phrase, the statute is \xe2\x80\x9cfar from a model of\nclarity.\xe2\x80\x9d Our resolution rests, at bottom, on our conviction that to read the statute\nin the way suggested by DoT would create an enormous gap in the enforcement of\nnewly enacted national security provisions, which we cannot believe Congress\nintended to do. Yet two canons of statutory construction\xe2\x80\x94the rule of lenity and\nthe Charming Betsy canon\xe2\x80\x94tug against our conclusion. Although we believe that,\nultimately, neither of these canons compels a result contrary to the conclusion we\nhave reached, we cannot say with certainty that a court reviewing an indictment or\nconviction under section 842(i) would agree.\nA.\nThe rule of lenity provides that \xe2\x80\x9cwhen choice has to be made between two\nreadings of what conduct Congress has made a crime, it is appropriate, before we\nchoose the harsher alternative, to require that Congress should have spoken in\nlanguage that is clear and definite.\xe2\x80\x9d United States v. Bass, 404 U.S. 336, 347\n(1971) (internal quotations and citation omitted). Congress has certainly not done\nthat here. Thus, we can understand how a court might reach the conclusion that the\nrule of lenity leads to the conclusion that the statute must be construed in the way\nthat most narrows the scope of potential criminal liability. And, indeed, one court\nhas done just that. See Petrykievicz, 809 F. Supp. at 799 (invoking the rule of\nlenity to conclude that the focus of section 845(a)(1) must be on the materials\nregulated rather than on the aspects of transportation regulated). Yet the \xe2\x80\x9crule of\nlenity applies only if, after seizing everything from which aid can be derived . . .\nwe can make no more than a guess as to what Congress intended.\xe2\x80\x9d Holloway v.\n\n11\n\nThe section 845(a)(1) exemption applies to \xe2\x80\x9cany aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by\xe2\x80\x9d DoT \xe2\x80\x9cand which pertain to safety.\xe2\x80\x9d\n(Emphasis added.) ATF hints at the argument that regardless of the reach of section 845(a)(1) with\nrespect to transporting explosives, section 842(i) still prohibits aliens and other prohibited persons\nfrom possessing explosives, even if they are doing so only as a part of transportation. See ATF\nSubmission at 5, 10\xe2\x80\x9312. Thus, if a driver could be said to be simultaneously transporting and possessing explosives within the meaning of section 842(i), ATF might argue that it could still prosecute the\ndriver for the possession of explosives, even if DoT had actually issued a regulation that would trigger\nthe transportation exemption under section 845(a)(1). Although we do not resolve the question here,\nwe do note that ATF\xe2\x80\x99s assertion of jurisdiction in such a case would severely limit, and arguably\neviscerate, section 845(a)(1) because that provision would immunize only those individuals who were\ntransporting but not simultaneously possessing explosives. We do not know whether such a class of\npersons exists, and decline to speculate without further input from the affected agencies.\n\n49\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nUnited States, 526 U.S. 1, 12 n.14 (1999) (internal quotations and citation\nomitted); accord Staples v. United States, 511 U.S. 600, 619 n.17 (1994) (ambiguity must be \xe2\x80\x9cgrievous\xe2\x80\x9d for rule of lenity to apply); Johnson v. United States, 529\nU.S. 694, 712 n.13 (2000) (Scalia, J., dissenting) (\xe2\x80\x9c[l]enity applies only when the\nequipoise of competing reasons cannot otherwise be resolved\xe2\x80\x9d). Although section\n845(a)(1) poses interpretive difficulties, we cannot conclude that any ambiguity is\n\xe2\x80\x9cgrievous,\xe2\x80\x9d or that our interpretation of the statute is \xe2\x80\x9ca guess as to what Congress\nintended.\xe2\x80\x9d Therefore, we believe the rule of lenity does not apply.\nB.\n[Redacted from original memorandum opinion at the request of the United\nStates Trade Representative.]\nIII.\nFor the reasons set forth above, we conclude that DoT possesses the authority\nto issue a regulation that, under section 845(a)(1), would exempt Canadian truck\ndrivers from criminal liability under section 842(i). We further conclude, however,\nthat DoT has not issued such a regulation and therefore section 842(i) liability\nwould attach to a Canadian truck driver transporting explosives in the United\nStates.\nJAY S. BYBEE\nAssistant Attorney General\nOffice of Legal Counsel\n\n50\n\n\x0c'