decision would note have been consistent with the purpose of the notice 
and was not necessary since the complete text of the decision is available 
to the public. Furthermore, the notice specifically states that "the 
Appeals Court went on to state that, ' N IH should at least consider whether 
a programmatic EIS Is required to fulfill the agency's legal obligations 
under NEPA and the CEQ regulations.'" This clearly indicates in the notice, 
that the Court did not hold that NEPA applies only to the University of 
California experiment. I, therefore, do not see any reason to issue "a 
corrective public notice," and I recommend you not accept this suggestion. 
III-C-3. Mr. Rogers in his May 14 letter states: 
"Turning to the question of whether a programmatic EIS is necessary 
for the NIH activities Involved in the review and the decisions on 
such experiments, we wish to state the public notice discussion of 
the issue is totally inadequate. The notice fails to reflect an 
objective and even handed approach to the question. The court of 
appeals made It abundantly clear that the NIH was under an 
obligation to undertake a 'reasoned consideration' of the factors 
relevant to resolving that Issue. Slip op. at 32. 'Since NIH has 
given no serious consideration to whether a programmatic EIS is 
justified, we cannot evaluate its claims that deliberate release 
experiments are neither so 'cumulative' or 'connected' that a program- 
matic EIS is required under the CEQ regulations, nor so 'similar' 
that a programmatic EIS may not be 'the best way to assess adequately' 
their environmental effects. 40 C.F.R. [Sec.] 1508.25. 
"The public notice reflects a NIH's continued refusal to give serious 
consideration to the issue. The discussion of that issue consists 
primarily of a cryptic reiteration of the arguments made in court 
against the notion that the NIH is required to prepare such a 
programmatic EIS, even though most of those arguments would be equally 
applicable to containment experiments, the guidelines for which prompted 
NIH to prepare an EIS.... 
"The public will not be adequately informed of the issues involved on 
the questions on whether a programmatic EIS is necessary unless there 
is at least a reasonable good faith attempt to set forth both sides 
of the issue in a public notice on the question. Accordingly, we 
request NIH to vacate the notice and issue an adequate one." 
III-C-4. My Response to Comments in Section III-C-3 
I do not believe the public notice is Inadequate or that it "fails to 
reflect an objective and even handled approach to the question." It 
objectively and fairly gives factual information to the public in the 
following four areas: 
A. When is a Programmatic EIS Required? 
25 
[ 189 ] 
