formation and publications related to migratory birds and their environment (Article VI).

**

Id. V-VI.

Deputy Secretary Christopher's report indicated that the Dept. of the Interior negotiated the Convention in coordination with the Dept. of State and that both agencies support its ratification.

'On p. VI of Ex. Print K, 95th Cong., 1st Sess., Deputy Secretary Christopher indicated in his report to the President that "at the conclusion of negotiations a Joint Declaration was signed wherein both States agreed to consider the expansion of the Convention to include additional Contracting Parties'" and that this "Joint Declaration is enclosed for the information of the Senate."

On November 1, 1977, Lynn A. Greenwalt, Director of the Fish and Wildlife Service of the Department of the Interior, signed regulations revising the list of migratory birds contained in 50 CFR 10.13. The revised list contains all species covered by the conventions between the United States and Canada, Japan, and Mexico for the preservation of migratory birds. These conventions are the Convention for the Protection of Migratory Birds in the United States and Canada signed on August 16, 1916 (TS 628; 39 Stat. 1702; 12 Bevans 375; entered into force on December 7, 1916), the Convention between the United States and Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and their Environment signed on March 4, 1972 (TIAS 7990; 25 UST 3329; entered into force on September 19, 1974), and amended on September 19, 1974 (TIAS 7990; 25 UST 3329), and the Convention between the United States and Mexico for the Protection of Migratory Birds and Game Mammals signed on February 7, 1936 (TS 905; 50 Stat. 1311; 9 Bevans 1017; 178 LNTS 309; entered into force on March 15, 1937). As revised the list includes all species protected by the Migratory Bird Treaty Act, 16 U.S.C. 703-711.

The regulations, prepared by Marshall L. Stinnett of the Division of Law Enforcement of the Department of the Interior, also eliminated the distinction between game and nongame species and amended the definition of "migratory bird" in 50 CFR 10.12 so that the term refers to any bird belonging to a species included in the list as well as any mutation or hybrid of any such species.

Portions of the supplementary information provided in the announcement of the regulations appear below:

SUPPLEMENTARY INFORMATION:

The Migratory Bird Treaty Act (16 U.S.C. 703-711) [hereinafter referred to as "the Act"] expressly protects any migratory bird included in the terms of the Convention for the Protection of Migratory Birds, August 16, 1916, United States-Great Britain (on behalf of Canada)... ; the Convention for the Protection of Migratory Birds and Game Mammals, February 7, 1936, United States-Mex

257-179 O-79-56

ico... ; or the Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, March 4, 1972, United States-Japan . . . (16 U.S.C. 703). Regulations implementing the Act, which are found principally in Title 50, Code of Federal Regulations, Parts 10, 20, and 21, are likewise applicable to any bird covered by one of the three treaties (16 U.S.C. 704). Accordingly, 50 CFR 10.12 currently defines "migratory birds" as "... all birds, whether or not raised in captivity, included in the terms of conventions between the United States and any foreign country for the protection of migratory birds. . .".

However, neither the Act nor its implementing regulations presently contain a definitive list of all the species covered by the treaties. . . .

[A]s adopted in this final rulemaking, the list of migratory birds in 50 CFK 10.13 now contains all species covered by the three treaties and consequently all species protected by the Act and its implementing regulations. The species classification was selected because it is the smallest taxon common to all three treaties.

. . . As provided in the proposal, the list's current distinction between game and nongame species has been eliminated. Game birds are those for which open seasons are prescribed in 50 CFR Part 20. Since game birds are designated in Part 20, there is no need for a separate listing in Part 10. .

Concerning the definition of "migratory bird," this rulemaking amends 50 CFR 10.12 to define that term as any bird, whatever its origin and whether or not raised in captivity, which belongs to a species listed in section 10.13. The definition also provides that "migratory bird" includes mutations or hybrids of listed species, as well as parts, nests, eggs, or products. Because of the great difficulty in distinguishing mutations and hybrids from purebreds, coverage of the former two is essential to adequate enforcement of the Act and treaties. By including parts, nests, eggs, and products, section 10.12 merely restates the coverage of the Act (16 U.Š.C. 703).

Accordingly, Part 10 of Title 50, Code of Federal Regulations, is hereby amended as set forth below.

1. § 10.12 is amended by revising the definition of "migratory bird" to read as follows:

$10.12 Definitions.

"Migratory bird" means any bird, whatever its origin and whether or not raised in captivity, which belongs to a species listed in § 10.13. or which is a mutation or a hybrid of any such species, including any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof.

2. 10.13 is revised to read as follows:

§ 10.13 List of Migratory Birds.

The following is a list of all species of migratory birds protected by the Migratory Bird Treaty Act (16 U.S.C. 703-711) and subject to the regulations contained in this subchapter. The species listed are those included in the Convention for the Protection of Migratory Birds, August 16, 1916, United States-Great Britain (on behalf of Canada), 39 Stat. 1702, T. S. No. 628; the Convention for the Protection of Migratory Birds and Game Mammals, February 7, 1936, United States-Mexico, 50 Stat. 1311, T.S. No. 912; and the Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, March 4, 1972, United StatesJapan, 25 U.S.T. 3329, TIAS No. 7990. The species are arranged alphabetically by groups, with the scientific name following the English language common name. All species of ducks are listed together under the heading "DUCKS".

42 Fed. Reg. 59358-59359 (Nov. 16, 1977). The list of migratory birds contained in 50 CFR 10.13 may be found in 42 Fed. Reg. 59359-59362.

For further information concerning the U.S.-Japanese Migratory Bird Convention of Mar. 4, 1972, see the 1973 Digest, Ch. 11, § 1, pp. 427-428, and the 1974 Digest, Ch. 11, § 1, p. 710.

For further information concerning the U.S.-Canada Migratory Bird Convention of Aug. 16, 1916, see the 1973 Digest, Ch. 11, § 1, p. 427.

For further information concerning the Migratory Bird Treaty Act of 1918, see the 1974 Digest, Ch. 11, § 1, p. 611.

Environmental Impact

In a memorandum and order In the Matter of Babcock and Wilcox (License No. XR-118 and Docket No. 50-571), dated June 27, 1977, the U.S. Nuclear Regulatory Commission (NRC) held that the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq., does not require the NRC "to prepare an individual environmental statement assessing the site specific impacts of the particular proposed nuclear reactor export on territory within the sovereign jurisdiction of a foreign government." Slip op. at 7. The NRC found that so far "as the NRC must consider . . . the impacts of such exports... on the global environment, the final generic statement on U.S. nuclear power export activities previously prepared by the Energy Research and Development Association (ERDA-1542, April 1976) satisfies all the NRC's NEPA obligations." Id. The Commission's decision rejected the petition filed on behalf of Buergeraktion Atomschutz Mittelrhein e. V. (Citizen Action Group for Nuclear Protection, Middle Rhine, Ltd.) for leave to intervene and for a hearing concerning the application of Babcock and Wilcox filed on November 10, 1976, for authorization to export a 1200 megawatt pressurized water reactor to the Federal Republic of Germany. The NRC's memorandum and order also held that the petitioner lacked standing to intervene in the license

proceeding as a matter of right and found that a discretionary public hearing would not serve the public interest.

The NRC concluded that the export of the proposed nuclear facility was in full accord with the Additional Agreement for Cooperation between the United States and the European Atomic Energy Community (EURATOM) concerning Peaceful Uses of Atomic Energy signed June 11, 1960 (TIAS 4650; 11 UST 2589; entered into force July 25, 1960), and that International Atomic Energy Agency safeguards will be applied to the Mulheim-Karlich Nuclear Power Station which will receive the reactor. The NRC found that license No. XR118 met all the standards of the Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974 and ordered that it be issued to the Babcock and Wilcox Company.

The NRC's decision concerning the international reach of the NEPA was based on the statute's language and legislative history as interpreted in light of general principles of international law, the practical difficulties of preparing impact statements on foreign sites, and advice from the Dept. of State. Portions of the opinion, issued by Marcus A. Rowden, Victor Gilinsky (concurring), and Richard T. Kennedy, follow:

It is petitioner's contention that the Commission cannot lawfully act upon Babcock & Wilcox's application until the Commission prepares, circulates for comment, and considers in its decisionmaking process a detailed environmental impact statement examining seven specific topics. Petitioner finds this requirement in section 102 (2) (C) of the National Environmental Policy Act of 1969, 42 U.S.C. 4332 (2) (C). . . .

SUMMARY OF COMMISSION DETERMINATIONS

We hold that NEPA does not require us to prepare an individual environmental statement assessing the site specific impacts of the particular proposed nuclear reactor export on territory within the sovereign jurisdiction of a foreign government. Insofar as we must consider the impacts of the export on the United States and globally the environmental impact statement on the effects of United States nuclear export activities previously prepared by the Energy Research and Development Administration (ERDA) satisfies all the Commission's NEPA obligations in the present matter. Also, because the petitioner has not presented a single contention appropriate for the Commission to consider, the petitioner lacks standing to intervene in the present licensing proceeding as a matter of right. Although in our discretion we could nonetheless order a public proceeding, if we deemed that one was warranted, we do not find that such a course would be in the public interest.

We have further determined that issuance of License No. XR-118 meets all applicable licensing requirements. . . .

I. INTERNATIONAL REACH OF NEPA

A. NEPA And Its Legislative History

Neither the language nor the legislative history of NEPA unambiguously defines its application to Federal actions whose significant environmental impacts occur outside the United States. However, there seems little occasion to doubt that Congress' focus was on this nation and actions having impacts within U.S. borders. Thus, in delineating the purposes of NEPA, Congress emphasized

that it intended to establish a “national" policy" for the protection "of the ecological systems and natural resources important to the Nation." NEPA Section 2 (emphasis supplied). . . .

However, as the Council on Environmental Quality observed in its September 24, 1976, Memorandum to Heads of Agencies on Applying the EIS [ Environmental Impact Statement] Requirement to Environmental Impacts Abroad, this focus on national impacts was not exclusive. . . . Although CEQ has drawn a somewhat differing conclusion, we cannot find . . . any basis for belief that Congress meant the statute to apply, or even considered that it might apply, in circumstances such as those of the present case.

The statute deals explicitly with the question of international application in only one section-102 (2) (F). That provision is revealingly limited in scope: ... [t]o the fullest extent possible . . . (2) all agencies of the Federal Government shall. . . (F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment. (Emphasis supplied.) Agencies are to seek and encourage cooperation with other nations on environmental problems. However, this requirement to lend support is limited to the extent "appropriate" and "consistent with the foreign policy of the United States." Thus, section 102(2)(F) does not appear to create enforceable obligations for agencies. To the contrary, the very conspicuousness of the foreign policy qualification indicates a concern for the practical problems of conducting foreign policy and responding to the vicissitudes of international relations. The CEQ memorandum makes only passing mention of section 102 (2) (F). However, the section is clear evidence indicating that Congress was sensitive to foreign policy concerns when it directly faced international implications. This fact undermines, for us, any argument that the statute requires consideration of impacts to a foreign sovereign from activities it has authorized to be conducted on its own soil. In the face of the indisputable proposition that EIS preparation for such site-specific impacts could have major foreign policy ramifications, a proposition we develop below, the absence of a foreign policy qualification from section 102 (2) (C) can only signify that Congress did not contemplate that such impacts were to be addressed in the environmental statements required by that section.

We recognize that in reaching this conclusion as to the breadth of our NEPA responsibilities we are in apparent disagreement with the views of the CEQ regarding assessment of impacts within other countries. . . . CEQ's views, however, are not binding on the Commission. Greene County Planning Board v. FPC, 455 F.2d 412, 421 (2nd Cir. 1972), cert. denied, 409 U.S. 849 (1972); Nucleus of Chicago Homeowners Association v. Lynn, 524 F.2d 225, 232 (7th Cir. 1975). Although the Commission finds many guidelines issued by the CEQ to be useful in implementing NEPA, the Commission does not find the September 24 Memorandum to be persuasive on the issue of NEPA's international reach insofar as impacts occurring within the borders of other nations of the type here at issue are concerned.

Based on our reading of the statute and its legislative history, we conclude that Congress recognized the worldwide character of environmental problems, but we find no specific indication that Congress intended the United States Government to prepare environmental impact statements assessing the impact of U.S. exports on the local environment of foreign sovereigns.

C. Considerations of International Law and Foreign Relations

In deciding whether our NEPA obligations include preparation of impact statements in cases such as this one, we have been strongly influenced by wellestablished principles of international law and considerations of foreign policy put before us by the Department of State. . . .