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APPENDIX 3.-DOCUMENTS RELATING TO THE TRANSPORTATION OF RADIOACTIVE MATERIALS ON PASSENGER-CARRYING AIRCRAFT

[Docket No. 14249; Amdt. No. 103-24]

PART 103-TRANSPORTATION OF DANGEROUS ARTICLES AND MAGNETIZED MATERIALS

CARRIAGE OF RADIOACTIVE MATERIALS ON PASSENGER-CARRYING AIRCRAFT

The purpose of this amendment to Part 103 of the Federal Aviation Regulations is to implement section 108 of the Transportation Safety Act of 1974 (Pub. L. 93-633) by limiting the carriage of radioactive materials on passenger-carrying aircraft to those intended for use in, or incident to, research, or medical diagnosis or treatment and to those that meet the requirements in 49 CFR 173.391 which exempt them from packaging, marking, and labeling requirements for shipment by rail express.

Interested persons have been afforded an opportunity to participate in the making of this amendment at public hearings conducted January 20, 1975, and February 27, 1975, and by a notice of proposed rulemaking (Notice 75-2) issued on January 29, 1975, and published in the Federal Register on February 4, 1975 (40 FR 5168). Due consideration has been given to all statements and comments presented at the hearings and all comments presented in response to the notice. Certain of the comments received make recommendations that are beyond the scope of the notice and cannot therefore, be considered in this proceeding.

Section 108 of the Transportation Safety Act of 1974, enacted into law on January 3, 1975, directs the Secretary of Transportation to issue regulations within 120 days after the date of enactment, in accordance with Section 108 and pursuant to Section 105 of that Act, with respect to the transportation of radioactive materials on any passenger-carrying aircraft in air commerce. The pertinent provisions of section 108 of the Act being implemented by this amendment state in part:

"Sec. 108 (a) General-*** Such regulations shall prohibit any transportation of radioactive materials on any such aircraft unless the radioactive materials involved are intended for use in, or incident to, research, or medical diagnosis or treatment, so long as such materials as prepared for and during transportation do not pose an unreasonable hazard to health and safety. The Secretary shall further establish effective procedures for monitoring and enforcing the provisions of such regulations.

"(b) Definition-As used in this section, ‘radioactive materials' means any materials or combination of materials which spontaneously emit ionizing radiation. The term does not include materials in which (1) the estimated specific activity is not greater than 0.002 microcuries per gram of material; and (2) the radiation is distributed in an essentially uniform manner.'

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Certain of the comments received reveal that there is a difference of opinion among interested persons as to whether the term "research" used in section 108 (a) of the Act must be construed to permit the transportation on passengercarrying aircraft of only those radioactive materials intended for use in, or incident to, "medical research", thereby excluding those materials intended for use in, or incident to, nonmedical research.

The FAA has carefully reviewed Section 108 of the Act and is of the opinion, upon consideration of the syntax and punctuation of the sentence involved and its legislative history, that the term "research" used in section 108 (a) must be given a statutory meaning which encompasses radioactive materials intended for use in, or incident to, nonmedical research as well as medical research. However, the term "research" as proposed in the notice has been revised in this amend(76)

ment to make it clear that research includes investigation and experimentation aimed at the discovery of new theories or laws as well as their revision.

Section 103.3 (d) of the proposal has been changed in this amendment to clarify the intent to require the statement regarding a shipment of radioactive materials to be certified by the shipper or his agent in accordance with paragraph (a) of that section.

Certain other changes of an editorial nature have also been made in the proposal. These include a change in proposed § 103.1 (c) (4) which, for purposes of clarification, deletes the reference to “49 CFR Parts 172 and 173” and substitutes for it a reference to "49 CFR 173.391.”

This amendment is issued under the authority of sections 313(a) and 601 of the Federal Aviation Act of 1958 (49 U.S.C. 1354(a) and 1421), and sections 105, 107, and 108 of Pub. L. 93-633, as delegated to the Administrator by the Secretary of Transportation (40 F.R. 2861).

Since Pub. L. 93-633 requires this amendment to be effective no later than May 3, 1975, I find that good cause exists for making this amendment effective on less than 30 days notice.

In consideration of the foregoing, and for the reason set forth in Notice 75–2, Part 103 of the Federal Aviation Regulations is amended as follows, effective May 3, 1975:

1. By amending § 103.1(c) by revising paragraph (4) adding a new paragraph (7) and paragraph (d) to read as follows:

§ 103.1 Applicability.

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(c) This part does not apply to- * * *

(4) Prior to May 3, 1977, radioactive materials that meet those requirements in 49 CFR 173.391 in effect on May 3, 1975, that exempt them from the packaging, marking, and labeling requirements for shipment by rail express.

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(7) Human beings and animals with an implanted medical device, such as a heart pacemaker, that contains radioactive material or with radioactive pharmaceuticals that have been injected or ingested.

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(d) For the purposes of this part

(1) Radioactive materials means any materials or combination of materials which spontaneously emit ionizing radiation. The term does not include materials in which (i) the estimated specific gravity is not greater than 0.002 microcuries per gram of material; and (ii) the radiation is distributed in an essentially uniform manner.

(2) Research means investigation or experimentation aimed at the discovery of new theories or laws, and the discovery and interpretation of facts or revision of accepted theories or laws in the light of new facts.

3. By amending $103.3 by adding a new paragraph (e) to read as follows: § 103.3 Certification requirements.

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(e) In addition to the requirements of paragraph (a) of this section, no shipper may offer, and no person operating an aircraft may knowingly accept, any radioactive material subject to the requirements of this part for shipment in a passenger-carrying aircraft unless there is accompanying the shipment a clear and visible statement, signed or stamped by the shipper or his agent as prescribed in paragraph (a), that the shipment contains radioactive materials intended for use in, or incident to, research, or medical diagnosis or treatment and meets the requirements of this part for shipment in passenger-carrying aircraft.

4. By amending § 103.7 by revising paragraph (b)(6) to read as follows: § 103.7 Passenger-carrying aircraft.

No person may carry any dangerous article in a passenger-carrying aircraft except

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(b) The following articles when packaged, marked, and labeled as specifically provided in 49 CFR Parts 171 through 173 for shipment by rail express:

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(6) Subject to applicable provisions of this part, radioactive materials intended for use in, or incident to, research, or medical diagnosis or treatment and those radioactive materials that are exempted by § 103.1 (c) (4) and (7) from the requirements of this part.

Issued in Washington, D.C., on April 12, 1975.

JAMES E. Dow, Acting Administrator.

[FR Doc. 75-10150 Filed 4-16-75; 8:45 am]

Hon. WILLIAM J. RANDALL,

THE SECRETARY OF TRANSPORTATION,
Washington, D.C., December 19, 1975.

Chairman, Subcommittee on Government Activities and Transportation, Committee on Government Operations, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: In response to your letter of November 20, I am forwarding a legal opinion from the Chief Counsel of the Federal Aviation Administration concerning the scope of the word "research" as used in Section 108 (a) of Public Law 93-633.

The conclusions stated in that opinion are consistent with the views of the General Counsel of the Department of Transportation on this matter.

Sincerely,

WILLIAM T. COLEMAN, Jr.

INTERPRETATION OF SECTION 108 OF THE TRANSPORTATION SAFETY ACT OF 1974

(Public Law 93-633)

Section 108 (a) of Public Law 93-633 requires the Secretary of Transportation to issue regulations with respect to the transportation of radioactive materials on passenger-carrying aircraft in air commerce, as defined in the Federal Aviation Act of 1958. Section 108 (a) provides, in pertinent part, that such regulations shall prohibit any transportation of radioactive materials on any passenger-carrying aircraft "unless the radioactive materials involved are intended for use in, or incident to, research, or medical diagnosis or treatment, so long as such materials as prepared for and during transportation do not pose an unreasonable hazard to health and safety."

The question asked is whether the research referred to in Section 108 (a) pertains only to medical research or whether it encompasses as well other research, including "industrial research."

It is our opinion that the term "research" as used in Section 108 (a) must be construed to include research other than medical research. Although the statute does not define "research" and does not contain any reference to or definition of "industrial research" there is nothing in the pertinent statutory provision that would exclude research performed by or for industrial entities, as long as the intended use of the radioactive material otherwise qualifies as "research". Conversely, the statutory provision does require the prohibition of shipment on passenger-carrying aircraft of radioactive materials intended for industrial uses other than research.

Our conclusion is based upon a reading of the statutory language and the rules of statutory construction elaborated upon in the paragraphs which follow.

A. THE LANGUAGE OF SECTION 108 IS CLEAR AND UNAMBIGUOUS ON ITS FACE It is a general rule of statutory construction that where a statute is clear and unambiguous on its face it is not open to interpretation and should be administered or enforced according to its terms. In Caminetti v. United States, 242 U.S. 470 (1916) the Supreme Court declared, "where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion."

B. EACH WORD SHOULD BE GIVEN EFFECT

If possible, every word, clause and sentence of a statute must be given effect

"A statute should be construed so that effect is given to all of its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error. 2A Sutherland on Statutory Construction, § 46.06 (4th ed. 1973).

Section 108 expressly refers to "research, or medical diagnosis or treatment." Thus, it appears that Congress has gone to some lengths, through the use of syntax and punctuation, to exempt two categories ("research" and "medical diagnosis or treatment") from the prohibition against transporting radioactive materials on passenger-carrying aircraft. We do not believe that Congress would make a distinction between these two categories if it intended to limit the meaning of "research" to "medical research."

C. "RESEARCH, OR MEDICAL DIAGNOSIS OR TREATMENT" SHOULD BE READ DISJUNCTIVELY

Unless a contrary intent is clearly indicated, the term "or" is presumed to be used in the disjunctive. It has been commonly held that the word "or" used in a statute is disjunctive and indicates an alternative. Ohio Fuel Co. v. Paxton, 1 Fd2d 662 (S.D. Ohio, E. D. 1924).

The language of Section 108, "research, or medical diagnosis or treatment" is written in the disjunctive. Therefore, the term "research" is separated from "medical diagnosis or treatment" and these two distinct categories are excepted from the general prohibition against transporting radioactive materials aboard passenger-carrying aircraft.

D. THE ACT SHOULD BE READ AS PUNCTUATED

Section 108 places a comma between the terms "research" and "medical diagnosis or treatment," thereby indicating that these two exceptions should be treated separately. It is a general rule of statutory construction that: An act should be read as punctuated, however, unless there is some reason to do otherwise... [w]hen punctuation discloses a proper legislative intent or conveys a clear meaning the courts should give weight to it as evidence. Sutherland, supra, § 47.15.

If Congress had intended to create only one exception, "medical research," it would have written "medical research or diagnosis or treatment." However, placement of a comma between "research" and "medical diagnosis or treatment," indicates a contrary intent.

E. LEGISLATIVE HISTORY

Since it appears from the foregoing that the language must, on its face, be construed to include research other than medical research, there would ordinarily be no cause to resort to the legislative history as an aid to interpretation. For the sake of completeness, however, we have reviewed the pertinent legislative history, and find that it does not alter our initial conclusion.

The original House bill (H.R. 15223) as passed by the House on June 24, 1974, contained no provision equivalent to Section 108 (a). A proposed Senate bill would have prohibited the transportation of all radioactive materials on passenger-carrying aircraft except those "intended for use in medical research, diagnosis or treatment". In commenting on this proposal, the Secretary of Transportation wrote to Senator Pearson, a member of the Senate subcommittee considering the proposal, that the exception to the prohibition against transporting radioactive materials should not be limited to "medical research." In this letter of September 24, 1974, Secretary Brinegar stated: "Finally, Section 108 would prohibit the transportation of all radioactive materials on passenger aircraft, except those used for medical purposes. This prohibition is too broad and would preclude a great many non-medical packages which see an important usage in industrial and academic research programs and whose transportation does not pose an unreasonable risk to the public. (S. Rep. No. 93-1192, Senate Commerce Committee, 93d Cong. 2d Sess., pp. 84-85 (1974)).”

A few days after receipt of these comments, the proposed Section 108 was amended to read "research, or medical diagnosis or treatment." This amended language was in the bill as reported by the Senate Committee on Commerce on September 30, 1974. In pertinent part, the Senate Report stated that at a mini

mum the regulations to be prescribed by the Secretary "must prohibit transportation of all radioactive materials not involved in or incident to research activities or to medical diagnosis or treatment activities. Radioactive materials intended for research, or medical treatment or diagnosis, can be transported only so long as they do not impose an unreasonable hazard to health and safety." (S. Rep. No. 93-1192, p. 35).

The provision, with the identical wording and punctuation except for one change not relevant here, was retained in the final version recommended by the House-Senate conference committee and enacted by Congress. The only discussions concerning the pertinent provision were the following statements by members of the Conference Committee in the Senate and House.

In offering the conference report, Senator Hartke stated: "The conference report would ban all radioactive materials from passenger-carrying aircraft except those used for research or medical diagnosis or treatment. In enacting this provision, we reasoned that while it would be unwise to burden hospitals requiring radiopharmaceuticals or other nuclear medicines, such a need did not exist by those who use radioactive materials for industrial purposes. It should be noted, however, that industrial users of radioactive materials may still utilize cargo planes or air taxi services for quick deliveries. 120 Cong. Rec. S. 21944" (December 18, 1974).

A more limited statement was made by Senator Magnuson with respect to Section 108 when he declared: "It also prohibits the shipment of radioactive materials aboard passenger aircraft, unless they are intended for medical research or treatment." 120 Cong. Rec. S. 21945 (December 18, 1974).

In the House, Representative Jarman presented the conference report with these words pertaining to Section 108: "We also ban radioactive materials from passenger aircraft unless it is necessary for use in research or medical activity." 120 Cong. Rec. H. 12351, December 19, 1974).

While the statement by Senator Magnuson possibly may be cited to support a narrower interpretation of the statute, the statements by Senator Hartke and Representative Jarman most clearly reflect the language of Section 108 as actually written and finally enacted into Public Law 93-633. They both refer to research or medical diagnosis or treatment in the disjunctive thereby indicating the intent to have two separate categories of exceptions to the prohibition against carriage of radioactive materials on passenger-carrying aircraft. No distinction is attempted between non-medical research and medical research, thereby evidencing an intent to broadly construe the term "research" to mean non-medical as well as medical research. Although Senator Hartke's reference to "industrial purposes" is somewhat ambiguous, it does not negative the earlier general reference to "research" or require the exclusion of industrial research. On balance, taking into account the amendment which followed receipt of the Secretary's letter and the entirety of the legislative history on this point, we do not believe that the legislative history indicates the attribution of any constricted meaning to the word "research".

In conclusion the language of Section 108 is clear and unambiguous on its face and does not warrant statutory interpretation. Nevertheless, the rules of statutory construction and an examination of the legislative history also support the conclusion that the term "research" as used in Section 108 (a) includes the carriage of radioactive materials on passenger-carrying aircraft intended for use in, or incident to, non-medical research as well as medical research.

[From the Federal Register, Thursday, Dec. 11, 1975]

Materials Transportation Bureau

[14 CFR Part 103]

[Docket No. HM-131; Notice No. 75-10]

TRANSPORTATION OF DANGEROUS ARTICLES AND MAGNETIZED MATERIALS

PROPOSED INSPECTION AND MONITORING REQUIREMENTS FOR RADIOACTIVE MATERIALS The Materials Transportation Bureau is considering amending Part 103 of the Federal Aviation Regulations to require aircraft operators to perform certain inspection and monitoring of radiocative material shipments.

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