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