statement be prepared in time to accompany the proposal for 
federal action through the agency's review procedures. The 
U.S. Supreme Court in Aberdeen and Rockfish Railroad v. SCRAP , 
422 U.S, 289(1975) interpreted this to mean that a final 
environmental impact statement must be prepared at the time 
the agency publishes a proposal on which it plans to hold hearings 
so that the impact statement can be considered at the hearing. 
According to this rule, a final EIS should have been prepared 
when the Director submitted the proposed Guidelines to his advisory 
committee for review at the February 1976 meeting. Contrary 
to what NEPA requires, NIH did not publish this draft EIS 
until two months after the final Guidelines were issued. 
In its introductory statement concerning the draft 
EIS, NIH excuses this delay on the grounds that the Guidelines 
had to be promulgated before the draft EIS was ready because 
of the urgent need to protect the public from the hazards of 
recombinant research and because the decision-making process 
which preceded publication of the Guidelines was the functional 
equivalent of the environmental review required by NEPA. The 
claim that the Guidelines had to be published promptly to protect 
the public is not accurate. Until the Guidelines were published 
a voluntary moratorium was in effect and if anything the public 
was better protected then it is now. Publication of the Guidelines 
could have awaited completion of the impact statement process. 
Furthermore, NIH had ample time to prepare a draft and final 
5 
Appendix K — 131 
