DOT vs BATFE

heres an interesting read on the DOT vs ATF regarding who should regulate explosives in transportation.... from the IMEL Institute of Makers of explosives...

Issue: Did the Safe Explosives Act of 2002 (SEA) convey authority to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) over the qualifications of persons engaged in the transportation of Class 1 materials regulated by the Department of Transportation (DOT)?

Discussion: With the strong support of the IME, Congress enacted legislation - the SEA - to strengthen Federal Explosives Law (FEL). Among other things, this legislation now requires that all persons authorized to "possess" explosives" be subject to background checks of the ATF and subject to disqualifications established under the law. ATF has determined that "drivers" are "possessors" and therefore are subject to alien disqualifications (unless granted "relief") and ATF-processed background checks. Since 1970, a provision of FEL, 18 USC 845(a)(1), has excepted from FEL any aspect of the transportation of explosives that is regulated by the DOT which pertains to safety. This provision was not altered by the SEA amendments. Based on it, ATF has heretofore not regulated transportation. Based on this historical precedent, there was no discussion that drivers would be captured by these new requirements during congressional consideration of the SEA. In fact, Congress provided at 49 USC 5103a that the qualification and background checks of hazmat transportation workers, including drivers, would be a responsibility of the DOT.

ATF rejects the argument that 18 USC 845(a)(1) prohibits the Bureau from regulating drivers because the SEA background checks/bans on alien possession of explosives are "security" not "safety" issues. However, the SEA amendments to FEL are titled, the "Safe Explosives Act." Also, DOT regulates explosives as a hazardous material under the HMTA. DOT's hazmat authority at 49 USC 5103 was amended by PL 107-296 (Section 1711) to clarify that "safety" includes "security."

ATF rejects the argument that 18 USC 845(a)(1) prohibits the Bureau from requiring driver background checks because DOT has relinquished the processing of the hazmat driver background check to the Transportation Security Administration (TSA) which is to transfer to the Department of Homeland Security. While this is true about the processing of the background check, the enforcement of the results of the check will be through DOT's Commercial Motor Vehicle driver licensing (CMV) program. Drivers will have to obtain a TSA background check to get a DOT "hazmat endorsement" on their CMV driver's license to transport placarded hazardous materials.

ATF has stated that they do not believe DOT/TSA's background check will be as thorough as the Bureau's, and that this justifies ATF's imposition of a separate check. However, nothing in 18 USC 845(a)(1) allows ATF to ignore this exception because they think DOT's requirements are inadequate. If ATF believes DOT requirements are inadequate, they should communicate their concerns to DOT, not attempt to act unilaterally where they clearly have no statutory authority.

Impacts: If ATF's argument stands that the SEA voids 18 USC 845(a)(1), then it is not just drivers who will be subject to ATF disqualifications/background checks, it will be railroad workers, vessel operators, and airline crews. The international aspects of this issue cannot be forgotten. If the US allows ATF to close the border to Canadian drivers, Canada, no doubt, will respond in kind with reciprocal retaliatory restrictions. Safety and security at the border will be greatly compromised. Most ATF requirements now have a "security" basis. If ATF can invade DOT jurisdiction simply by declaring some requirement a "security" rather than a "safety" requirement, driver qualifications may be only the tip of the iceberg. Finally, ATF has no preemption authority over non-federal requirements. If 18 USC 845(a)(1) does not apply to background checks/alien (and other) disqualifications established under the SEA, then states/localities can also require their own background checks/restrictions. The result will be a compliance nightmare and cripple interstate and foreign transport of explosives.

Recommendation: DOT, not ATF, is the federal entity which under its 49 USC

5103a authority will process background checks and any disqualifications of drivers of explosives as it will for drivers of all other hazmats. The ATF should acknowledge DOT's statutory authority to establish and enforcement qualifications for transporters of Class 1 materials and desist from claims that the SEA gives the agency authority to regulate this fundamental aspect of transportation.

shockie B)

Reply to
shockwaveriderz
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Is there acase number or something you can reference between ATF and DOT on this issue?

Jerry

Reply to
Jerry Irvine

jerry:

No its just a policy statement of position per the IME....... Its on their website

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I think look for policies... shockie B)

Reply to
shockwaveriderz

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sorry shockie B)

Reply to
shockwaveriderz

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