36 
impact on the environment, it is the scientist's obligation to advise his 
lawyer that the operating words of the statute seem to be applicable. RAC 
as a scientific body should advise NIH and NIH lawyers: 
"...this looks to us like it's going to have sane potential impact on the 
environment, and we suggest that you do an environmental assessment or 
in some cases an environmental impact statement.” 
Mr. Rogers argued that RAC has the right and the obligation to participate 
in discussions and make reccranendations regarding the responsibilities 
that it and NIH have under the Guidelines. 
Mr. Rogers then turned to the question of whether language regarding NEPA 
should be in the NIH Guidelines. Mr. Rogers said the NIH Guidelines 
constitute the only Federal regulatory structure available to govern deli- 
berate release experiments and as such the Guidelines should advise appli- 
cants of the requirements for approval. Comparable regulations of other 
agencies set forth those activities or classes of activities which require 
an EA or an EIS. 
Mr. Rogers took issue with Et. Krause's citation of a decision made by NIH 
Director Fredrickson in 1978 that "all waiver decisions will include a 
careful consideration of the potent ial environmental impact. Some decisions 
may be accompanied by a formal assessment or statement - a determination, 
however, that can only be made on a case-by-case basis.” He stated that 
current regulations do not permit such ad hoc determinations. He referred 
the committee to a portion of Section 15^7.3, A gency Procedures, of the 
regulations of the Council on Environmental Quality implementing NEPA. That 
portion reads as follows: 
"(b) Agency procedures shall oarply with these regulations except 
where compliance would be inconsistent with statutory requirements 
and shall include.... 
"(2) Specific criteria for and identification of those typical 
classes of action: 
”(i) Which normally do require environmental inpact statements. 
"(ii) Vtiidi normally do not require either an environmental impact 
statement or an environmental assessment (categorical 
exclusions ($1508. 4)). 
"(iii) Which normally require environmental assessments but not 
necessarily environmental impact statements." 
He argued that NIH had not made a determination that deliberate release 
experiments are categorically excluded from requiring either an EA or an 
EIS. That being the case, determination shall be made in each instance 
whether or not an environmental assessment or an environmental inpact 
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