U.S. Nuclear Regulatory Commission

Licensing of Nuclear Materials for Use on the High Seas and in Antarctica

HPPOS-198 PDR-9111210330

Title: Licensing of Nuclear Materials for Use on the High

Seas and in Antarctica

See the memorandum from J. R. Wolf to N. Bassin dated

September 18, 1979. NRC's authority under the Atomic Energy

Act is not restricted to the territory of the United

States. The Commission has the authority to regulate

licensed materials of U.S. ships on the high seas and U.S.

bases in Antarctica.

Your proposed letter to Commander Vogt makes an assumption,

which we regard as erroneous, that NRC authority under the

Atomic Energy Act is restricted to the territory of the

United States. While our authority arguably may not attach

unless there is some territorial connection at the outset,

our interest and jurisdiction once acquired can reasonably

be invoked to regulate the use and possession of byproduct

and special nuclear material until it has been terminated

by virtue of licensed transfer, disposal, or export.

This approach to jurisdiction is manifest in those

provisions which distinguish between domestic distribution

("... to any person within the United States ...") and

foreign distribution ("... for a use which is not under the

jurisdiction of the United States.") (AEA Section 57c; see,

also, AEA Sections 103d and 104d). Note that the latter

clause refers to the United States in a juridical rather

than a geographic sense. AEA Section 82 does differentiate

between distributions of byproduct material between persons

"outside the United States" on the one hand and "within the

United States" on the other. However, even here, there is

no bar to exercising regulatory jurisdiction outside

territorial limits where the initial distribution is under

AEA Section 81.

In construing the provisions of the Atomic Energy Act, it

has long been our view that the Commission is authorized to

license activities beyond continental limits so long as the

activities are subject to United States jurisdiction. This

jurisdiction may extend to United States citizens upon the

high seas or even in foreign countries when the rights of

other nations or their nationals are not infringed. On

this basis, according to our legal memoranda files, the AEC

found no limitation upon the Commission's power to exercise

authority over the N. S. Savannah upon the high seas. Our

prior licensing of the Navy to possess radioisotope thermal

generators reflects a similar construction of the Atomic

Energy Act. Moreover, the exercise of regulatory authority

to protect the health and safety of the public (AEA Section

2e) is no less necessary outside territorial limits,

particularly if the materials subject to regulation

continue to present potential hazards to United States

citizens.

For these reasons, we advise that you process the

applications in the same manner as you would process

applications for activities that are restricted to the

territory of the United States. We note, however, that

under the Antarctic Treaty, 12 U.S.T. 794, TIAS 4780,

procedures have been established for the formulation of

measures regarding questions relating to the exercise of

jurisdiction in Antarctica, Article IX 1. (e). We should

perhaps inquire of the Department of State regarding any

measures as may have been adopted under Article IX, in

order to assure that the exercise of NRC jurisdiction there

is appropriate.

Regulatory references: Atomic Energy Act

Subject codes: 11.3, 12.9

Applicability: Byproduct Material