Safe Explosives
Act
Recent Regulations Issued by the Transportation Security Administration on Commercial Transportation of Explosives
Date: 2/11/03
On February 3, 2003, the Transportation Security Administration (TSA), an agency of the Department of Transportation (DOT), issued a regulation regarding the transportation of explosives by commercial motor vehicles and railroads. See 68 Fed. Reg. 6083 (February 6, 2003) (to be codified at 49 C.F.R. pt. 1572). The regulation sets forth rules for the lawful commercial transportation of explosives into the United States from Canada by railroad and commercial motor carrier not using United States citizens or lawful permanent residents as drivers or railroad crews. Upon publication of this regulation, TSA became the agency responsible for regulating individuals other than U.S. citizens or resident aliens of the U.S. who may transport explosives in commerce by rail or highway from Canada into the United States. As a consequence, to the extent that aliens are transporting, shipping, receiving, and possessing explosives incident to and in connection with the commercial transport of explosives by motor carrier or rail into the United States from Canada, those activities are not subject to the provisions of 18 U.S.C. § 842(i)(5).
The DOT regulation also addresses aliens commercially transporting explosives by maritime mode into the United States from any overseas location. As a result of the DOT regulation, to the extent that aliens are transporting, shipping, receiving, and possessing explosives incident to and in connection with the commercial transport by water of explosives, those activities are not subject to the provisions of 18 U.S.C. § 842(i)(5). The Department of Justice (DOJ) is reviewing regulations of TSA and the Federal Aviation Administration to determine whether such regulations address the security risk presented by aliens transporting explosives into the United States by commercial air carrier. When such review is complete, ATF will advise of the impact on commercial transportation of explosives by air.
Based upon the above, an alien entering the United States from Canada will not violate the provisions of 18 U.S.C. § 842(i)(5) while shipping, transporting, receiving and possessing explosives incident to and in connection with the commercial transportation of explosives by rail, motor carrier or water. However, aliens who ship, transport, receive, and possess explosives within the United States not incident to and in connection with the commercial transportation of explosives will violate 18 U.S.C. § 842(i) irrespective of DOT's regulation. Moreover, until DOT or any other DOT agency issues additional regulations addressing the security risks presented by the commercial transportation of explosives by the remaining categories of prohibited persons (persons under indictment for a felony; felons; fugitives from justice; unlawful drug users or persons addicted to a controlled substance; persons adjudicated as a mental defective or committed to a mental institution; persons dishonorably discharged from the armed forces; and persons who have renounced their U.S. citizenship), ATF is authorized to enforce the provisions of section 842(i) as well as the other provisions of Chapter 40.
BACKGROUND
In 2002, Congress enacted the Safe Explosives Act, Title XI, Subtitle C of Public Law 107-296. Among other things, the Act amended 18 U.S.C. 842(d) and 842(i) to provide additional categories of persons who may not lawfully ship, transport, receive or possess explosive materials. Prior to amendment, persons under indictment for or convicted of a felony, fugitives from justice, unlawful users of or persons addicted to controlled substances, and persons adjudicated as a mental defective or committed to a mental institution were prohibited from receiving or possessing explosive materials. The Act added aliens (other than permanent resident aliens and other excepted aliens), persons dishonorably discharged from the military, and persons who have renounced their U.S. citizenship to the list of prohibited persons. These provisions of the law became effective on January 24, 2003.
Current law, 18 U.S.C. § 845(a)(1), provides an exception from the Federal explosives laws (except for specified plastic explosives and bombing and arson offenses) for "any aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by the United States Department of Transportation and agencies thereof, and which pertain to safety." The Act did not amend this provision of the law.
The TSA Rule
DOT (through its agency TSA) issued an interim final rule, effective February 3, 2003, that addresses security issues regarding transportation of explosives by aliens by commercial motor vehicles and railroads from Canada into the United States. 68 Fed. Reg. 6083 (February 6, 2003) (to be codified at 49 C.F.R. pt. 1572). In the new regulation DOT has exercised its authority to make security determinations and generally provides for security checks of Canadian truck and rail operators carrying explosives to the United States to ensure that the operators do not pose a security risk. The rule clarifies that the DOT has "evaluated the risk posed by aliens who transport commercial shipments of explosives into the United States from Canada and has determined that the requirements adopted in this Interim Final Rule are sufficient to mitigate that risk at this time." Accordingly, aliens may lawfully transport, ship, receive, and possess explosives by commercial motor carrier or rail into the United States from Canada, to the extent that they are doing so incident to and in connection with the commercial transportation of explosives, irrespective of the provisions of 18 U.S.C. § 842(i).
Questions regarding this matter may be directed to the ATF Public Safety Branch at 202-927-2310.
QUESTIONS AND ANSWERS
1. The rule discusses commercial trucks and trains transporting explosives from Canada; what about Mexico?
ATF will enforce the provisions of section 842(i) regarding the commercial transportation, shipment, receipt and possession of explosives by aliens operating motor carriers or rail carriers across the Mexican border. Until DOT addresses the security risk posed by aliens transporting explosives from Mexico, the provisions of 18 U.S.C. § 842(i) will continue to apply.
2. Will TSA be doing background checks on persons holding commercial driver's licenses with a hazardous materials endorsement who operate within the United States?
The DOT interim rule states that DOT plans to issue regulations in the near future to implement the provisions of the USA PATRIOT Act, Public Law No. 107-56, 115 Stat. 397 (2001). This statute requires, in pertinent part, that the Department of Justice (DOJ) conduct background checks on drivers of commercial motor vehicles applying for a hazardous materials endorsement. DOJ is directed to report the results of the background check to DOT, which will then determine whether the driver poses a security risk. The purpose of the background check is to ensure that the drivers do not pose a security risk to the American public. When DOT exercises its authority to conduct security assessments of commercial motor vehicle drivers, ATF will consult with other DOJ components to determine the impact under 18 U.S.C. 845(a)(1). To the extent that the security assessment mandated in the DOT regulations includes consideration of a prohibited category set forth in 18 U.S.C. 842(i), persons who fit within that category may lawfully transport explosives in commerce. Thus, if DOT permits certain felons to obtain a hazardous materials endorsement, then ATF would have no authority to enforce the provisions of 18 U.S.C. 842(i)(1) against felon commercial drivers while they are shipping, transporting, receiving, or possessing explosives incident to their employment as a truck driver. When DOT issues a regulation implementing these provisions of the law, ATF will evaluate the effect of the rule on its enforcement of the Federal explosives laws and notify all interested parties accordingly.
3. Does the new TSA rule mean that ATF can't investigate felons or the other categories of prohibited persons (beside aliens covered by the TSA rule) who transport explosives in commerce?
Until DOT exercises its authority under the USA PATRIOT Act and other statutes to regulate additional categories of prohibited persons, ATF may enforce the provisions of the Federal explosives laws, including 18 U.S.C. 842(i), against persons within such categories. Thus, individuals holding a commercial driver's license with a hazardous materials endorsement who knowingly transport, ship, receive or possess explosives and fall within any of the categories of prohibited persons are subject to criminal prosecution under section 842(i). The only exceptions to the prohibition at this time are aliens who (1) hold a commercial driver's license issued by Canada; (2) are commercial rail crew members entering the United States from Canada; and (3) commercial vessel crew members entering the United States from any location.
4. Why is ATF suddenly enforcing this area of law?
It has been ATF's longstanding position since 1970 that a driver knowingly transporting explosive materials in a truck or other vehicle has possession of such materials. Thus, the driver would be knowingly shipping, transporting, receiving and possessing the explosives. If the driver is a felon, has been dishonorably discharged from the military, or falls within any of the other categories of prohibited persons, the driver may not knowingly ship or transport any explosive in interstate or foreign commerce or receive or possess any explosive which has been shipped or transported in interstate or foreign commerce. 18 U.S.C. 842(i). The same prohibition would apply to persons knowingly transporting, shipping, possessing, or receiving explosives as an employee of a carrier transporting explosives via air, rail, or water.
The new categories of prohibited persons recently added to the statute by the Safe Explosives Act were effective on January 24, 2003. The three new categories are aliens (with certain exceptions), persons dishonorably discharged from the armed forces, and persons who have renounced their U.S. citizenship. Addition of the alien prohibition focused attention on explosives being transported into the U.S. from abroad by aliens operating common carriers. It was necessary to give appropriate guidance to the U.S. Customs service on whether commercial shipments of explosives may lawfully enter the United States. In discussing the alien prohibition with common carriers, it has become apparent that many were unaware of the other categories of prohibited persons that have been in the statute since 1970. Because ATF regulates the Federal explosives industry (not the transportation industry), the agency has never had an enforcement program directed to commercial carriers of explosive materials. It is not ATF's intention to place unnecessary obstacles in the path of legitimate commerce in explosive materials. However, Congress has made it clear that the persons specified in section 842(i) may not lawfully possess explosives unless their activities fall within one of the statutory exceptions in 18 U.S.C. 845(a) or they apply for and receive relief from disabilities under 18 U.S.C. 845(b).
5. If someone is in one of the categories of prohibited persons not covered by the TSA rule, can ATF grant relief?
Yes. Section 845(b) provides that ATF may grant relief from disabilities if it can be demonstrated to ATF that the individual is not likely to act in a manner dangerous to public safety and that the granting of relief is not contrary to the public interest. ATF encourages any truck driver or other employee of a carrier who is a prohibited person and who has a need to ship, transport, possess or receive explosives for purposes of their employment to apply for relief as soon as possible. Granting of relief from disabilities authorizes the transportation, shipment, receipt and possession of explosives for all purposes, not just employment. ATF will process relief applications as quickly as possible when a person's employment is contingent upon lawful possession of explosives.
6. What about shipments for the U.S. military? Aren't they exempt from Chapter 40 requirements?
Yes.
There are 2 exemptions for shipments by or for the United States military. Section
845 (a)(3) provides an exemption for "the transportation, shipment, receipt,
or importation of explosive materials for delivery to any agency of the United
States or to any State or political subdivision thereof." This would include,
of course, the Department of Defense and its various agencies. In addition, section
845(a)(6) provides an exemption for "the manufacture under the regulation
of the military department of the United States of explosive materials for, or
their distribution to or storage or possession by the military or naval services
or other agencies of the United States; or to arsenals, navy yards, depots, or
other establishments owned by, or operated by or on behalf of, the United States."
Accordingly, the recent enactment of the Safe Explosives Act does not affect the
shipment of explosives by or on behalf of the U.S. military.
7. Are
"consumer fireworks" subject to regulation under the Federal explosives
laws?
No. Regulations in 27 C.F.R. § 555.141(a)(7) exempt "consumer fireworks" from all the provisions of the Federal explosives laws. The term "consumer fireworks" is defined in section 555.11 of the regulations as follows:
Any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the U.S. Consumer Product Safety Commission, as set forth in title 16, Code of Federal Regulations, parts 1500 and 1507. Some small devices designed to produce audible effects are included, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials. Consumer fireworks are classified as fireworks UN0336 and UN0337 by the U.S. Department of Transportation at 49 CFR 172.101. This term does not include fused setpieces containing components which together exceed 50 mg of salute powder.
Because "consumer
fireworks" are not subject to regulation under the Federal explosives laws,
no violation of 18 U.S.C. § 842(i) would occur when felons or other prohibited
persons ship, transport, receive, or possess this type of explosive material.