Petition — United States v. RSR Corp.

UNITED STATES oF AMERICA, PETITIONER ; *

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QUESTION PRESENTED

Whether, when Congress reeodified the Interstate

Commerce Act “without substantive change,” it “inad-

vertently” repealed pre-existing criminal penalties for

violations by private carriers of the Federal Motor Car-

rier Safety Regulations.

Page

OCT eee OP POT TEE 1

e eee Ud ives dceast 1

Statutory provisions involve 2

FF 4

Reasons for granting the petitioo nnn 7

nr eee 19

rn. oa ...e la

...der 16a

e eee eee e 17a

TABLE OF AUTHORITIES

Cases:

Barrett v. United States, 423 U.S. 212 ........... 15

Bifulco v. United States, 447 U.S. 381 ........ 12, 16, 17

Callanan v. United States, 364 U.S. 587 ......... 13

Cass v. United States, 417 U.S. 72 16

Fourco Glass Co. v. Transmirra Products Corp.,

rr. 16

Greenwood v. Peacock, 384 U.S. 808 ............. 16

Huddleston v. United States, 415 U.S. 814 13

lannelli v. United States, 420 U.S. 770 .......... 14

NLRB v. Lion Oil Co., 352 U.S. 8222 12

Richards v. United States, 369 U. S. 111. 11

Scarborough v. United States, 431 U.S, 563 14

United States v. Bass, 404 U.S. 386 ....... 12, 14, 17, 18

United States v. Batchelder, 442 U.S. 114. 14

United States v. Brown, 333 U.S. 18 .......... 12, 14, 15

United States v. Campos-Serrano, 404 U.S. 298 .. 12

United States v. Cook, 384 U.S. 257 ............. 15, 16

United States v. Culbert, 485 U.S. 871 ........... 14

United States v. Faygo Beverage, Inc., Cr. No.

80-80509 (E. D. Mich. Sept. 2, 1982) ......... 7,8

United States v. Fisher, 6 U.S. (2 Cranch) 358.... 14

United States v. Heirs of Boisdore, 49 U.S. (8

r „ 12

United States v. Moore, 423 U.S. 12 14, 15

United States v. Moore, 613 F.2d 1029, cert.

denied, 446 U.S. 96. 14

United States v. Naftalin, 441 U.S. 768 .......... 12, 14

(

* *

(Iv)

Cases—Continued:

Page

United States v. Rossetti Brothers, 671 F. 2d

... 8, 10, 11, 18, 14, 17, 18

United States v. Turkette, 452 U.S. 576 ....... 11-12, 15

United States v. Youngstown Cartage Co.,

Fed. Carr. Cas. (CCH) J 82,383 (N. D. Ohio

e eee 9

Williams v. United States, No. 80-2116 (June 29,

e. re enn 18

Statutes and regulations:

Department of Transportation Act, Pub. L. No.

89-670, 80 Stat. 981 (codified at 49 U.S.C.

RT ee TTT ETE ee 9

Lei eee 9

49 U.S.C. 168, (ö)) eee eee 3

49 U.S.C. 16550) 0 ) ʒꝛ cece eens 3

Interstate Commerce Act, ch. 498, 49 Stat. 543 (49

TBO. BiG GD ch gts + <ctcnd ove cccvcccecns 8

Pub. L. No. 95-478, 92 Stat. 1387 ................ 5

Pub. L. No. 95-478, 92 Stat. 1466:

ee 0c ode vusbasbes 5

r.. cnantbababenh s denapaliadte 5, 10

EID cca lok c cap ene 10, 17

INE ick EE 0's bk Litas those eee 10, 17

BD TEA. Ges oc . . G. di oats as 2, 6, 8

rere. A. ee eee 9

Soc eee 15

She. e ee eee 6, 9, 10, 11

49 U.S.C. (Supp. IV) 1190 %/½e2ůcene 2, 4, 5, 6, 9,

10, 11, 12, 18

49 U.S.C. (Supp. IV) 11914 14

nee oc cc ccccuccccs 5, 17

Miscellaneous:

124 Cong. Rec. 30172 (197%): 10

H. Friendly, Benchmarks, Mr. Justice Frankfurt-

er and the Reading of Statutes (1967) ........ 18

H.R. 6998, 97th Cong., 2d Sess. (1982) ........... 16

H.R. Rep. No. 1395, 95th Cong., 2d Sess. (1978) . 10, 15

2A C. Sands, Sutherland onstruction

(1978) ........ $e nenigalewinn ia des dah och 12

rd

In the Supreme Court of the Unted States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

RSR CORPORATION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Solicitor General, on behalf of the United States

of America, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Fifth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A,

infra, la-15a) is reported at 664 F. 2d 1249.

JURISDICTION

The judgment of the court of appeals (App. B, infra,

16a) was entered on January 4, 1982. A timely petition

for rehearing was denied on June 23, 1982 (App. C,

infra, 17a-18a). On August 16, 1982, Justice White ex-

tended the time for filing a petition for a writ of certio-

rari to and including September 21, 1982. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

9

STATUTORY PROVISIONS INVOLVED

1. Section 204(a)(3) of the Interstate Commerce Act,

49 U.S.C. 304(a)(3) provides:

(a) It shall be the duty of the [Interstate Com-

merce] Commission—

R W K & *

(3) To establish for private carriers of property

by motor vehicle, if need therefor is found, reason-

able requirements to promote safety of operation,

and to that end prescribe qualifications and max-

imum hours of service of employees, and standards

of equipment. In the event such ts are

established, the term “motor carrier” shall be con-

strued to include P rivate carriers of property by

motor vehicle in the administration of subsection

(e) of this section and sections 305, 320, 321, 322(a),

(b), (d), (f), and (g), and 324 of this title.

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

A person required to make a report to the [In-

terstate Commerce] Commission, answer a ques-

tion, or make, prepare, or preserve a record under

this subtitle about transportation subject to the ju-

* — of the Commission under subchapter II

chapter 105 of this title, or an officer, t, or

employe of that person, that (1) willfully does not

that report, (2) willfully does not specificall 1

completely, and truthfully ans wer that question

30 from the date the Commission requires the

question to be answered, (3) willfully does not

make, prepare, or preserve that record in the form

manner prescribed by the prema, hr

8 988

Nu. — err

knowingly and willfully makes, „or pre-

serves x recordin violation f« regulation or order

of the Commission, shall be not more than

$5,000.

8. 49 U.S.C. 1655(e)(6)(C) provides:

(e) There are hereby transferred to and vested

in the Seeretary lof Transportation] all functions,

powers, and duties of the Interstate Commerce

Commission, and of the Chairman, members, offi-

cers and offices thereof, under—

(6) the following provisions of the Interstate

Commerce Act, as amended—

(C) relating generally to qualifications and maxi-

mum hours of service of ees and safety of

on and equipment: ons 204(a)(1) and

(2), to the extent that they relate to qualifications

and maximum hours of service of employees and

safety of operation and ; and sections

204(a)(3), 3(a), and (5) (49 U.S.C. 304).

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

(2A) With to any function which is

R- te toa Bearehars (ef tion] by

subsection (e) and which was vested in the Inter-

state Commerce Commission preceding such trans-

fer, the Secretary shall have the same administra-

tive under the Interstate Commerce Act as

the mission had before such transfer with

to such transferred function. After such

transfer, the Commission may exercise its adminis-

.

respeet to those ts funetions not

transferred by subsection (e).

* * * 222 (codified as 49 U.S.C. 322, recodified

as 49 U.S.C. 11909] (except subsections (b)(2)

and (be) thereof)

STATEMENT

1. Respondent RSR Corporation (“RSR”) sells lead

obtained from recycled batteries and uses a large fleet

of privately owned trucks to transport its property

across state lines (June 6, 1980 Tr. 7). 1 As such, it is

one of approximately 108,000 private motor carriers

subject to the jurisdiction of the Department of Trans-

portation (DOT), which regulates carrier safety. In

1969 and 1973, during safety compliance surveys of

Safety Regulations. Some of those violations concerned

drivers’ daily log books. On both occasions, RSR prom-

ised that it would institute procedures to correct the

deficiencies (July 11, 1980 Tr. 45, 47-48).

A third safety compliance survey of RSR’s operations

in 1979 revealed hundreds of violations of the motor

carrier safety regulations, including at least two in-

stances in which RSR failed to report a major accident

involving one of its vehicles (July 11, 1980 Tr. 46,

49 C. F. R. 395.8.2 The information alleged that RSR

knowingly and willfully maintained logs indicating that

drivers were off duty when in fact they were not (June

23, 1980 Tr. 22-25).

RSR moved to dismiss the information on the ground

that Section 1190%(b) does not prescribe criminal penal-

ties for private carriers such as itself. The district court

denied RSR’s motion (June 16, 1980 Tr. 17), and RSR

pleaded guilty to five counts of the information (June

23, 1980 Tr. 22-24, 31). Following RSR’s plea of guilty,

it was fined $5,000 on each of the five counts and the re-

maining three counts were dismissed (July 11, 1980 Tr.

50-51).

2. The court of appeals vacated RSR’s convictions,

“inadvertently” made a major change—the repeal of

criminal penalties for violations of safety regulations by

private motor carriers.

The recodified penalty provision (49 U.S.C. (Supp.

IV) 1190%b)) replaced 49 U.S.C. 322(g). It generally

tracked the language of Section 322(g), but included, in

the panel's view, one significant change: a reference to

“transportation subject to the jurisdiction of the Inter-

state Commerce] Commission.” The court concluded

that, because the 1966 Department of Transportation

Act had transferred the ICC’s authority to regulate pri-

vate motor carriers to the DOT, the ICC had no such

jurisdiction at the time of recodification. Therefore, the

recodified provision did not apply to private motor car-

riers because, in the court’s view, such carriers were

not “subject to the jurisdiction” of the ICC. According-

ly, the court held that the 1978 recodification stripped

the DOT of enforcement powers over its own regula-

tions issued pursuant to 49 U.S.C. 304(a)(3).

The court reached this conclusion even though it rec-

(App. A, infra, 6a). Moreover, the court noted that

there is no dispute “that the information would have

been proper if RSR had been charged with a violation

of 49 U.S.C. § 322(g)” prior to the recodification (App.

A, infra, 8a; see id. at 2a). Finally, after reviewing the

;

;

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a=

1 al

, it considered itself bound by

Transportation (DOT) to regulate private motor carri-

ers. The decision below strips DOT of authority to pro-

mulgate mandatory regulations for almost two-thirds of

the carriers that are currently subject to its jurisdic

tion. The potential impact of the decision below is

illustrated by the following figures: DOT’s Federal

Highway Administration currently promulgates safety

regulations for some 180,000 carriers, including more

than 108,000 private carriers who operate approximate-

ly 850,000 vehicles. Thus, DOT's ability to assure safety

to vacate a two-year old criminal conviction under a

companion provision of the Interstate Commerce Act.

United States v. Faygo Beverages, Inc., Cr. No.

recommended the prosecution of almost 40 criminal

cases against private carriers. Many of those prosecu-

tions could be undermined by the decision of the court

of appeals in this case.“

Without the criminal penalties Congress enacted,

DOT would be left without any effective means of en-

forcing its safety regulations for private motor carriers.

Under the decision below, those regulations would no

l be mandatory but merely precatory because no

orcement mechanism would remain. This is contrary

to the express language and legislative history of the

recodification of the Interstate Commerce Act, and is at

odds with numerous decisions of this Court that hold

that penal statutes are not to be construed in a manner

that defeats Congress’ manifest intent. The judgment

in the present case, moreover, cannot be reconciled

with the recent decision of the Second Circuit in United

States v. Rossetti Brothers, 671 F. 2d 718 (1982), which

rejected the same arguments that prevailed in the Fifth

Cireuit. Review by this Court is necessary in order to

resolve this split in circuit court authorities in a manner

that will allow DOT to fulfill its statutory mandate of

ensuring safety on the nation’s highways.

1. Prior to 1966, the Interstate Commerce Commis-

sion (ICC) was empowered to regulate aspects of trans-

portation of property by motor carriers engaged in in-

terstate commerce (see ch. 498, 49 Stat. 543 (49 U.S.C.

1 et geg.). While all such carriers were subject to ICC

jurisdiction, the extent of regulation depended upon

whether the carrier was classified as a common, con-

tract, or private carrier. Section 204(a)(3) of the Inter-

state Commerce Act (49 U.S.C, 304(a)(3)), gave the

Commission powers to promulgate regulations gov-

erning the safety of private motor carriers. And Section

222(g), 49 U.S.C. 322(g) (now codified at 49 U.S.C.

(Supp. IV) 1190%b)) provided criminal penalties for

failure to comply with those regulations.

In 1966, the Department of Transportation was cre-

ated (Pub. L. No. 89-670, 80 Stat. 981, (codified at 49

U.S.C. 1651 et seg.) and certain functions previously

performed by the ICC were transferred to DOT.

Among the functions so transferred were those relating

to “qualifications and maximum hours of service of em-

ployees and safety of operation and equipment [under]

* * * sections 204(a)(3), (Za), and (5) (49 U.S.C. 304).”

49 U.S.C. 1655(e)(6)(C). In addition, 49 U.S.C. 16550

expressly provided that DOT was vested with the same

functions and administrative powers the ICC had en-

joyed under 49 U.S.C. 322. Thus, plenary power to

adopt regulations governing private carriers and to en-

force those regulations by criminal prosecution,

previously within the jurisdiction of the ICC, was

transferred directly to DOT. See United States v.

Youngstown Cartage Co., Fed. Carr. Cas. (CCH)

4 82,383 (N. D. Ohio Jan. 10, 1973).5

to 56,063)

The powers, duties and functions of the ICC including

its were transferred to DOT. One of these pow-

2 Ke —

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and . e ee BOT the

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This statutory scheme was not revisited until 1978

when Congress, recognizing that intervening amend-

ments had left the substantive provisions of federal

transportation law scattered among various codified

and uncodified sections, undertook to restate the Inter-

state Commerce Act and related laws “without sub-

stantive change” and to enact those laws as subtitle IV

of the 49th title of the United States Code. See 124

Cong. Rec. 30172 (1978) (remarks of Reps. Eilberg,

McClory).® That this recodification was intended to ef-

fect no substantive change was reflected not only in the

legislative history, but also in the statutory language.

To this end, Section 3(a) of the recodification statute

(Pub. L. No. 95-473, 92 Stat. 1466), entitled “Legisla-

tive Purpose and Construction,” states that “Sections 1

and 2 of this Act restate, without substantive change,

laws enacted before May 16, 1978, that were replaced

by those sections. Those sections may not be construed

as making a substantive change in the laws replaced”

(emphasis added). In addition, Section 3(c) provides

that “[aJn order, rule, or regulation in effect under a

law replaced by sections 1 and 2 of this Act continues

in effect under the corresponding provision enacted by

this Act until repealed, amended, or superseded” (em-

phasis added). And Section 3(d) provides that offenses

committed under replaced sections are “deemed to have

been * * * committed under” the recodified sections.

The Act also contains a significant savings provision which

in substance, that whenever a power or

duty is erred, reference in any other federal law to

the er transferred shall be deemed to mean the party

to the power, duty or function was vested.

* The 1978 recodification was the first of at. ongoing leg-

islative project to restate and codify federal transportation law.

Future revisions and codifications will include subtitle I of title

49. See H.R. Rep. No. 1395, 95th Cong., 2d Sess. 5 (1978); see

also United States v. Rossetti Brothers, supra, 671 F. 2d at 720

n. 6. 1

11

Among the sections of the Interstate Commerce Act

thus restated “without substantive change” was 49

U.S.C. 322(g) (currently codified at 49 U.S.C. (Supp.

IV 11909(b)),” which imposes criminal penalties on pri-

vate carriers that, like respondent RSR, “knowingly”

and “willfully” maintain false records in violation of

safety regulations. The significance of these criminal

sanctions in the statutory scheme can scarcely be over-

stated. They are the only means Congress prescribed

for enforcement of DOT safety and recordkeeping regu-

lations. In the absence of criminal enforcement, the

regulations covering important questions of public safe

ty would be, as the Second Circuit recognized in United

States v. Rossetti Brothers, supra, 671 F. 2d at 720 “re-

duce{d}) * * * to precatory provisions.” In that event,

the 108,000 private carriers under DOT’s jurisdiction

would be subject to no effective regulation under the

Interstate Commerce Act.

The clear import of 49 U.S.C. (Supp. IV) 1190%b),

when read in the context of the recodification statute of

which it was a part, is that the pre-existing criminal

sanctions would continue “without substantive change”

and that pre-existing regulations would continue] in

effect.” Under settled rules of statutory construction,

this statutory context may not be overlooked. It is well

established that “a section of a statute should not be

12

tence or member of a sentence, but [should] look to the

provisions of the whole law * * *.” Richards v.

United States, 369 U.S. 1, 11 (1962) (footnote omitted).

Accord, United States v. Turkette, 452 U.S. 576,

587-588 n.10 (1981); United States v. Naftalin, 441

U.S. 768, 772-774 (1979); Bifulco v. United States, 447

U.S. 381, 388-390 (1980); NLRB v. Lion Oil Co., 352

U.S. 282, (1957); see United States v. Heirs of

Boisdore, 49 U.S. (8 How.) 113, 122 (1850); 2A C.

Sands, Sutherland Statutory Construction § 46.05

(1973). Thus, “courts should interpret a statute with an

eye to the surrounding statutory landscape and an ear

for harmonizing potentially discordant provisions

„ „*. United States v. Bass, 404 U.S. 336, 344

(1971). Indeed, even in the context of sentencing provi-

sions in penal statutes, a single phrase should not be

construed in isolation from the statutory scheme as a

whole when to do so would result in a meaning that con-

tradicts or distorts “the fair import of the whole re-

maining language.” United States v. Brown, 333 U.S.

18, 25-26 (1948); see, e. ., United States v. Campos-

Serrano, 404 U.S. 298, 298 (1971); United States v.

Bass, supra, 404 U.S. at 350-351.

Rather than interpret Section 1190%b), as it should

have, in the context of the statute of which it was a

part, the court of appeals focused on a minor language

change in the recodification (see note 7, supra). By lim-

iting its scope of inquiry to the words “subject to the ju-

risdiction of the Commission” (49 U.S.C. (Supp. IV)

1190%(b)), the court rendered an unduly narrow inter-

pretation wholly at odds with the stated objective of

Congress. Thus, the court concluded that, because au-

thority to regulate private carriers had been

transferred from the ICC in 1966, the 1978 statutory

reference to ICC jurisdiction could not have included

such carriers. In so concluding, the court effectively ig-

nored both the Department of :ransportation Act of

13

1966, which transferred the relevant ICC powers, and

the express language of the 1978 recodification, which

instructed the federal courts to construe Section

1190%(b) as “not * * making a substantive change.”

Construing Section 11909%(b) as making no substantive

change requires a conclusion different from that of the

court of appeals—i.e., that once the “jurisdiction of the

Commission” was transferred to DOT, DOT was in-

vested with full power to assure private carrier safety

by promulgating regulations enforced by criminal

sanctions.

2. The court of appeals believed that the language of

Section 1190%b) abolished criminal jurisdiction over

private carriers for violations of safety regulations,

even though it recognized that the legislative history

conclusively showed that Congress intended to pre-

serve that jurisdiction. App. A, infra, 10a (“this is

what Congress clearly meant to say, intended to say,

and wanted to say”). Yet, feeling bound by its restric-

tive reading of the statute and the rule of lenity, the

court held that Congress did not say it“ (ibid.). As ex-

plained above, the court erred in its interpretation of

the language of the statute; beyond this, however, it

erred in failing to give effect to Congress’ intent as ex-

pressed in the legislative history. See United States v.

Rossetti Brothers, supra, 671 F.2d at 720 (“[wjhere

Congress’s purpose is frustrated by a rigid application

of statutory language, common sense and evident statu-

tory purpose must inform a court’s construction of the

statute”).

Contrary to the view of the court of appeals, the rule

of lenity is merely al] guide to statutory construction”

(Callanan v. United States, 364 U.S. 587, 596 (1961),

which is not applicable unless there is such a “grievous

ambiguity or uncertainty in the language and structure

of the Act” (Huddleston v. United States, 415 U.S.

814, 831 (1974)) that even after [a court has] ‘seiz[ed])

every thing from which aid can be derived ** * lit is

14

still) left with an ambiguous statute.” United States

Bass, supra, 404 U.S. 347, quoting United States

Fisher, 6 U.S. (2 Cranch) 368, 386 (1805). As this Court

observed in United States v. Moore, 423 U.S. 122, 125

(1975), quoting United States v. Brown, 333 U.S. 18

25-26 (1948):

The canon in favor of strict construction [of crimi-

nal statutes] is not an inexorable command to over-

ride common sense and evident statutory

* * * Nor does it demand that a statute be

the “narrowest meaning”; it is satisfied if the

words are given their fair meaning in acccrd with

the manifest intent of the lawmakers.

See also, e. g., United States v. Naftalin, 441 U.S. 768,

778-779 (1979), United States v. Culbert, 435 U.S. 371,

379 (1978); Scarborough v. United States, 431 U.S.

BAR. B77 (1977); lannelli v. United States, 420 U.S.

770, 789 (1975); id. at 795 (Douglas, J., dissenting); id.

at 798 (Brennan, J., dissenting); United States v.

Moore, 613 F. 2d 1029, 1048-1045 (D.C. Cir. 1979), cert

denied, 446 U.S. 954 (1980).

Moreover, as this Court noted in United States v.

Culbert, supra, 435 U.S. at 379, the rule of lenity

applies only when a statute is genuinely ambiguous, or

uncertainty exists as to Congress’ intent. See also

United States v. Batchelder, 442 U.S. 114, 121 (1979).

Thus, the rule of lenity is not implicated here. As we

have shown, the recodification plainly negates any sug-

gestion that criminal sanctions were intended to be

repealed. Moreover, the statute’s legislative history

shows—without a shred of evidence to the con-

trary—that Congress “intended merely to transplant

[the penalty] section, renumbered into the recodified

portion of the Act.” United States \ v. Rossetti Brothers,

supra, 671 F. 2d at 720.®

* Rossetti Brothers involved a companion provision to the one

at issue in this case (49 U.S.C. (Supp. IV) 11914(b)), which is

15

Since Congress’ intent is clearly expressed in the leg-

islative history, as the court of appeals recognized, the

court erred in failing to give weight to the legislative

history in rendering its interpretation.

8. Even if the rule of lenity were relevant to this

case, the court of appeals seriously erred in its applica-

tion of the rule. As this Court has held (United States

v. Brown, supra, 333 U.S. at 25-26), no rule of statuto-

ry construction requires

magnified 1 77 a single ambiguous word

in order to give it Bo veh ey ambos pm to the

fair import of the whole remaining . As

was said in United States v. Gaskin, 320 U.S. 627,

580, the canon “does not require distortion or nulli-

fication of the evident meaning and purpose of the

legislation.”

See United States v. Turkette, supra, 452 U.S. 587-588

n. 10 United States v. Moore, 423 U.S. 122, 145 (1975);

see also Barrett v. United States, 423 U.S. 212, 218

(1976); United States v. Cook, 384 U.S. 257, 262 (1966).

In this case, Congress’ intent that the 1978 legislation

work no substantive change is manifest. The court of

appeals’ conclusion that criminal jurisdiction was “inad-

vertently” stripped from the Interstate Commerce Act

is precisely the kind of conclusion that Congress sought

to prevent by the plain language of its savings provi-

sions.* Moreover, the court’s conclusion directly

16

conflicts with the established presumption that recodifi-

cations are not meant to make substantive changes in

previous statutes. See Fourco Glass Co. v.

Transmirra Products Corp., 358 U.S. 222, 227-228

(1957); United States v. Cook, 384 U.S. 257, 262 (1966);

Cass v. United States, 417 U.S. 72, 82 (19700. 1 If leg-

islative intent could be thwarted by mechanical applica-

tion of the “rule of lenity,” congressional attempts to

restate complex legislation would be hampered and the

current effort to recodify the Interstate Commerce Act

would be burdened by the need for correcting amend-

ments before Congress could proceed to the next stage

of its recodification process. 11 Such a result is not de-

manded by the “rule of lenity,” which should only be

utilized when a court’s “* * * interpretation can be

. .e & Gee

Substantive change not intended.—Like other codifications

undertaken to enact into positive law all titles of the

United States Code, this bill makes no substantive changes

in the law. It is sometimes feared that mere changes in ter-

minology and style will result in changes in substance or

impair the precedent value of earlier judicial decisions and

other og Pym This fear might have some weight if

this were the usual kind of amendatory legislation where it

can be inferred that a of language is intended to

change substance. In a statute, however, the

— 44 the statute is in-

tended to remain substantively unchanged.

10 Indeed, this Court's recent decision in Bifulco v. United

States, 447 U.S. 381, 400 (1980), establishes that clearly ex-

pressed legislative intent overrides inadvertent or inartful

. See also Cass v. United States, supra, 417 U.S.

at 81-82; Greenwood v. Peacock, 384 U.S. 808, 815-816 (1966).

17

no more than a guess as to what Congress in-

v. United States, supra, 447 U.S. at

387. It should not be used to directly contradict legisla-

tive intent or to reach what the Second Circuit correct-

ly characterized as an “anomalous result.” United

States v. Rossetti Brothers, supra, 671 F. ad at 720.

Moreover, this case does not involve the factors that

typically have formed the basis for this Court’s invoca-

tion of the rule of lenity. First, there is no serious

dispute that RSR received “fair warning” of the re-

quirements of the law (United States v. Bass, supra,

H

admitted making, in the words of the statute, “will-

the testimony at the plea hearing established the factu-

al basis for the conviction (June 18, 1980 Tr. 31-36).

Moreover, 49 C. F. R. 395.8 expressly states that any vi-

olation “shall make * * * the carrier liable to prosecu-

tion” (see note 2, supra), and RSR has never ques-

tioned the application of this regulation. Thus, this is

not a case involving inadvertent violations of regulatory

Second, this case does not present the other basis for

the holding in United States v. Bass, supra, 404 U.S.

n The court of appeals noted that Ithhe parties do not

information would have been proper if RSR had

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at 348: “‘the instinctive distaste against men

ing in unless the lawmaker has clearly said

sh ” (quoting H. Friendly, Benchmarks, Mr.

tice Frankfurter and the Reading of Statutes, 196

(1967)). RSR is a corporate defendant subject only to

the same penalty (a fine) traditionally imposed in civil

or administrative proceedings.

Third, unlike Williams v. United States, No. 80-2116

(June 29, 1982), slip op. 11, this is not a case in which

the “legislative history * * * fails to evidence congres-

sional awareness of the statute’s claimed scope.” As we

have demonstrated, the government’s interpretation is

the only one Congress considered and Congress made

its intent clear in Section 3 of the recodification statute.

Finally, also unlike Williams v. United States, su-

pra, slip op. 11, this case does not involve “subject mat-

ter that has traditionally been regulated by state law.”

The enforcement powers at issue here have long been

exercised by the ICC and more recently by DOT. More-

over, there can be no dispute that application of safety

standards to private carriers engaged in interstate com-

merce is a subject properly within the purview of feder-

al law.

In short, no rule of statutory construction compels a

court to disregard the express language and structure

of a statute, or to ignore the unqualified expression of

intent contained in the legislative history. Under gov-

erning canons of statutory construction as often pro-

nounced by this Court and as applied by the Second

Circuit in United States v. Rossetti Brothers, supra,

the only proper result is to read the recodification pre-

cisely as Congress directed—as restating prior law

“without substantive change.”

CONCLUSION

The petition for a writ of certiorari should be

SEPTEMBER 1982