72 
In Borne Box Office , the court emphasized that the F.C.C.’s author- 
ity goes “no farther than to allow the Commission to regulate to 
achieve ‘long established’ goals or to protect its ‘ultimate purposes.’ ” 
Id., at 28. In striking down some of the regulations, the court relied 
in part on a Supreme Court case involving a Civil Sendee Regulation 
barring resident aliens from employment in the federal competitive 
civil service. Hampton v. Move Sun Wong. 426 U.S. 88 (1976). 
In Mow Sun Wong, the Supreme Court emphasized that it was deal- 
ing with “a federal rule having nationwide impact.” Id., at 100. The 
Court also acknowledged that federal power over aliens (like the 
interstate commerce power) is plenary. Id., at 101. But, the Court 
was concerned that at stake were liberty rights of these lawfully ad- 
mitted individuals and that the decision to bar them from federal em- 
ployment had been made at an agency level, rather than by Congress. 
Because constitutional interests were involved, despite the fact that 
the federal power is so plenary, the Court held that the Civil Service 
Commission regulation was unconstitutional. “The decision to impose 
that deprivation of an important liberty,” the Court wrote, “must be 
made at a comparable level of government or, if it is to be permitted 
to be made by the Civil Service Commission, that it be justified by 
reasons which are properly the concern of that agency.” Id., at 116. 
The Court found that “the Commission performs a limited and spe- 
cific function” — “promotion of an efficient federal sendee.” Id., at 114. 
A comparison might be drawn between these cases and the suggested 
use of the Public Health Service Act to regulate recombinant DNA re- 
search. The purpose, as stated, of the Public Health Service Act is to 
prevent the spread of communicable disease. If constitutional rights 
are present, as many have argued, and the dangers from the research 
at this point are remote and purely speculative, then it may be argued 
that Congress should, if it finds it necessary, enact specific legislation 
with the clear purpose of protecting the environment from strains of 
viruses and cells that many scientists claim “generally are not patho- 
genic to man.” See, infra, p. 2. 
We are not raising these points to say that section 361 can not or 
even should not be used to regulate DXA work, but, we are saying 
that given the complexity of the problem, use of section 361 is sure to 
generate time-consuming and costly litigation, the outcome of which 
is unpredictable. The nature of the proposed regulatory scheme is 
such that we cannot conclude that the scope of section 361 is, without 
doubt, sufficiently bread to support pervasive regulation of all DNA 
research. 
You have also asked for clarification of Mr. Hint's statement on 
page seven concerning judicial review of administrative action. He 
states that HEW has “broad discretion ... to determine when the 
scientific evidence warrants reliance on Section 381 to prevent the pos- 
sibility of communicable disease. Absent evidence that the HEW 
decision is xchclly irrational, it is highly likety that the courts woidd 
uphold this exercise of discretion.” [Emphasis added.] The applicable 
standard for judicial review of administrative agency action is found 
in the Administration Procedure Act. 5 TJ.S.C. 706. The scope of 
review is not whether agency action is “wholly irrational.” but rather 
whether the agency action is : “arbitrary, capricious, an abuse of dis- 
cretion, or otherwise not in accordance with law: contrary to constitu- 
[Appendix B — 331] 
