53 
PREEMPTION 
One element of science ancl technology policy, and a central element 
of proposed recombinant DMA legislation, concerns the degree of 
public participation in the policymaking process. At issue is the extent 
to which Federal legislation should preempt State or local government 
action with respect to regulated activities. The majority report rec- 
ommends a “partial” Federal preemption of State and local regulation 
which would in effect prohibit State or local governments from enact- 
ing stricter standards that the Federal Government unless “convinc- 
ing reasons” are shown. 
At the subcommittee hearings, the scientific community testified 
strongly in support of the need for Federal preemption in order to 
achieve uniform standards. On the other hand, it must be recognized 
that any form of Federal preemption represents an encroachment on 
the rights of State and local governments and restricts the traditional 
right of the public to act to protect the public health and safety. A del- 
icate balancing process is necessary to assure that States have the right 
to regulate research activities conducted within their borders while 
at the same time avoiding an unnecessary patchwork of conflicting 
local regulations. It is encouraging to note that the scientific commu- 
nity and local governments appear to be working out satisfactory ar- 
rangements on their own once they began to communicate with each 
other rather than confront each other. 
National decisions made with respect to recombinant DNA research 
activities will have implications for other areas of science and tech- 
nology. For example, a similar controversy surrounds the subject of 
nuclear waste management and the rights of States to prohibit perma- 
nent disposal of radioactive wastes within their borders. 
In any case, the step to preempt State and local action is a serious 
one which should not be taken without a full understanding of its im- 
plications. I am not satisfied that we possess the necessary information 
at the present time. There is a need for further study of the appropri- 
ate roles of the public, and State and local governments, and the ef- 
fects of preemption. Whatever is ultimately decided, there must be 
adequate provision for public and congressional participation in sci- 
ence policymaking. 
SECTION 361 OF THE PUBLIC HEALTH SERVICE ACT 
I am extremely disturbed by the language in the majority report 
which suggests that extension of the NIH guidelines to the private 
sector could be accomplished by regulatory action under the authority 
of section 361 of the Public Health Service Act (PHSA, 42 U.S.C- 
264). The majority report recommends that the Secretary of Health, 
Education, and Welfare (HEW) reconsider using the authority of the 
PHSA if Congress does not act on legislation. Further, the report rec- 
ommends that the Federal Government rely upon the “full legal au? 
thority” in extending the guidelines, and states that the subcommittee 
is “not persuaded that the legal obstacles to use of section 361 of the 
Public Health Service Act are insuperable.” While the majority con- 
cedes that it has not reached a final judgment on the legal issues relat- 
[Appendix B — 312] 
