[Printable PDF]

 
[Federal Register: January 18, 2001 (Volume 66, Number 12)] 
[Proposed Rules]                
[Page 4688-4706] 
From the Federal Register Online via GPO Access [wais.access.gpo.gov] 
[DOCID:fr18ja01-28]
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Proposed Rules                                                 

Federal Register
________________________________________________________________________  

This section of the FEDERAL REGISTER contains notices to the public of  
the proposed issuance of rules and regulations. The purpose of these  
notices is to give interested persons an opportunity to participate in  
the rule making prior to the adoption of the final rules.

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[[Page 4688]]    

DEPARTMENT OF HEALTH AND HUMAN SERVICES  

Food and Drug Administration  
21 CFR Parts 20, 312, and 601  

[Docket No. 00N-0989]    

Availability for Public Disclosure and Submission to FDA for  
Public Disclosure of Certain Data and Information Related to Human Gene  
Therapy or Xenotransplantation  

AGENCY: Food and Drug Administration, HHS.  

ACTION: Proposed rule.

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SUMMARY: The Food and Drug Administration (FDA) is proposing to amend  
the biologics licensing regulations regarding confidentiality of  
information. The amendments would add provisions that would make  
available for public disclosure, and require submission for public  
disclosure of, certain data and information related to human gene  
therapy or xenotransplantation. The proposed regulation would apply  
specifically to the areas of human gene therapy and xenotransplantation  
because these areas of clinical research have the potential for unique  
public health risks and modification of the human genome. The proposed  
rule would provide for public disclosure of certain data and  
information related to an investigational new drug application (IND),  
to provide an opportunity for public education on, and discussion and  
consideration of, public health and safety issues. In addition, the  
proposed rule would require sponsors of clinical trials on human gene  
therapy or xenotransplantation to submit to FDA for public disclosure  
certain data and information that has been redacted to remove or  
obscure all information defined as confidential commercial or trade  
secret, or names and other personal identifiers of patients and certain  
other third parties.  

DATES: Submit written comments on this proposed rule on or before April  
18, 2001. Submit written comments on the information collection  
provisions by February 20, 2001.  

ADDRESSES: Submit written comments on this proposed rule to the Dockets  
Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers  
Lane, rm. 1061, Rockville, MD 20852. Submit written comments on the  
information collection requirements to Wendy Taylor, FDA Desk Officer,  
Office of Information and Regulatory Affairs, Office of Management and  
Budget (OMB), New Executive Office Building, 725 17th St. NW.,  
Washington, DC 20503, Attn: Desk Officer for FDA.  

FOR FURTHER INFORMATION CONTACT: Steven F. Falter, Center for Biologics  
Evaluation and Research (HFM-17), Food and Drug Administration, 1401  
Rockville Pike, suite 200N, Rockville, MD 20852-1448, 301-827-6210.  

SUPPLEMENTARY INFORMATION:  

I. Background Information  

A. Current FDA Policies Regarding Disclosure of Information      
FDA regulations in part 312 (21 CFR part 312) provide procedures  
that govern the use of investigational new drugs, including new  
biological drugs, in humans. Under part 312, the sponsor of a clinical  
study in humans must submit to FDA an IND which provides specific  
information regarding the investigational new drug and the clinical  
study. The IND must be authorized by FDA and approved by the local  
institutional review board (IRB) before the clinical study may begin.  
The provisions of this rulemaking do not alter the procedures specified  
in part 312 for submission of an IND. A manufacturer requesting  
approval to market a biological product in interstate commerce must  
submit a biologics license application (BLA) to FDA before the product  
may be introduced into interstate commerce (42 U.S.C. 262). Among other  
things, the BLA contains information and data resulting from the  
clinical studies performed under an IND (Sec. 601.2 (21 CFR 601.2(a))).  
All information and data concerning the product, including those  
submitted in applicable IND's and in the BLA, are held by FDA in a  
biological product file (see definition of "biological product file"  
in Sec. 601.51(a) (21 CFR 601.51(a)) throughout the lifetime of the  
product.     

The general requirements related to disclosure of information for  
all types of commodities regulated by FDA and for all types of  
documents are provided in part 20 (21 CFR part 20). Under these  
regulations, certain categories of information are exempt from  
mandatory disclosure. The categories of information relevant to human  
gene therapy and xenotransplantation clinical trials that have  
historically been exempt from public disclosure include trade secrets  
and commercial or financial information which is privileged or  
confidential (Sec. 20.61); personnel, medical, and similar files, the  
disclosure of which constitutes a clearly unwarranted invasion of  
personal privacy (Sec. 20.63); and at the discretion of FDA,  
interagency or intra-agency memoranda or letters, except for factual  
information which is reasonably segregable (Sec. 20.62).     

Specific requirements for the availability for public disclosure of  
data and information in an IND, including those IND's relating to  
biological drug products, are included in Sec. 312.130. FDA's policy  
for the confidentiality of data and information contained in an IND for  
a biological product and in a biological product file is provided in  
Secs. 601.50 and 601.51 (21 CFR 601.50 and 601.51). Under Secs. 601.50  
and 601.51, and consistent with the other referenced disclosure  
regulations, FDA has not routinely publicly disclosed any data or  
information contained in an IND or a pending biological product file.  
FDA has not even acknowledged the existence of the IND or a pending  
biologics license application, unless its existence has previously been  
publicly acknowledged. Because the agency has no mechanism for reliably  
tracking what information concerning an unapproved, investigational  
product has been publicly acknowledged, the agency generally provides  
no information to the public concerning an investigational product,  
including information concerning any IND or pending BLA submissions,  
and refers the public to the sponsor of the IND or the pending  
biological license for further information. In some cases, FDA may  
publicly disclose selected portions of safety and effectiveness data,  
such as summary information for consideration at an open session of a  
Federal advisory  

[[Page 4689]]  

committee meeting, or other public workshops or meetings  
(Sec. 601.51(d)(1)). Once a biological license has been approved,  
certain information, as specified in Sec. 601.51(e), concerning the  
approved product and the clinical investigation of the product may be  
publicly disclosed.  

B. Issues Related to Human Gene Therapy and Xenotransplantation      

As a result of rapid advances in molecular biology, genomics,  
immunology, and transplant biology, new classes of biological  
therapeutics are being developed with the goal of providing future  
treatment options for genetic disease, cancer, and organ failure. Novel  
therapeutic approaches currently under consideration include the areas  
of human gene therapy and xenotransplantation. Human gene therapy and  
xenotransplantation are being proposed to treat genetic diseases such  
as cystic fibrosis, cardiovascular insufficiency, metabolic diseases  
such as diabetes, neurologic diseases such as Parkinson's and  
Huntington's disease, cancer, acquired immune deficiency syndrome  
(AIDS), and organ failure. 

1. Definitions     

Human gene therapy is defined as the administration of genetic  
material to modify or manipulate the expression of a gene product or to  
alter the biological properties of living cells for therapeutic use.  
Cells may be modified ex vivo for subsequent administration to the  
subject or altered in vivo by gene therapy products given directly to  
the subject. Human gene therapy includes, but is not limited to,  
autologous or allogeneic bone marrow stem cells modified with a viral  
vector, intramuscular or intravascular injection of a therapeutic  
plasmid deoxyribonucleic acid (DNA) or a therapeutic viral vector,  
ribozyme technology, and use of sequence specific oligonucleotides to  
correct a genetic mutation. For the purposes of this regulation, gene  
therapy is not intended to include the administration of viral or  
cellular products (e.g., blood or unmodified bone marrow), or their  
derivatives, that do not contain genetic material that has been  
specifically engineered into the product for therapeutic purposes.  
While prophylactic vaccines, including plasmid DNA vaccines and  
genetically modified viral vector vaccines, and some replication  
competent viruses are excluded under this regulation from the gene  
therapy definition, they are similar in nature to gene therapy  
products. Issues relevant to gene therapy products, such as vector  
integration and biodistribution, also apply to prophylactic vaccines.  
Therefore, the agency requests comment on whether such products should 
be included under this rulemaking to allow information related to these  
products to be available for public disclosure.     

The use of antisense oligonucleotides to block gene transcription  
is not intended to be included under gene therapy; however, as noted  
above, the use of sequence specific oligonucleotides to correct a  
genetic mutation would be included. The proposed mechanism of action of  
sequence specific oligonucleotides is to irreversibly change, insert,  
or delete a single base in the genome of a cell. This raises questions  
of whether base changes may result in mutations that may cause cancer,  
or express an immunogenic protein or have other adverse health affects.  
In addition, their use in vivo raises issues of activity in tissues  
other than the target and the risk of gonadal biodistribution leading  
to germ line changes.     

Xenotransplantation refers to any procedure that involves the  
transplantation, implantation, or infusion into a human recipient of  
either: (1) Live cells, tissues, or organs from a nonhuman animal  
source; or (2) human body fluids, cells, tissues, or organs that have  
had ex vivo contact with live nonhuman animal cells, tissues, or  
organs. The live cells, tissues, or organs used in xenotransplantation  
are referred to as xenotransplantation products. Xenotransplantation  
products include those from transgenic or nontransgenic animals, as  
well as combination products that contain xenotransplantation products  
in combination with drugs or devices. These include, but are not  
limited to, porcine fetal neuronal cells, encapsulated porcine islet  
cells, encapsulated bovine adrenal chromaffin cells, baboon bone  
marrow, and external liver assist devices employing porcine liver, or  
porcine hepatocytes. Nonliving biological products or materials from  
animals, such as porcine heart valves and porcine insulin, are not  
classified as xenotransplantation products for the purposes of this  
rulemaking. 

2. Public Health Issues     

While human gene therapy offers great promise for improving the  
lives of patients with serious, life-threatening diseases and  
disorders, there are several risks inherent in its use as a medical  
intervention. These risks include the inadvertent infection of  
patients, and potentially their contacts, with replication competent  
virus present in gene therapy vector preparations. For example,  
infection with type C murine retroviruses, which could contaminate  
retroviral vector preparations, is known to cause a range of diseases  
in animals including spongiform encephalopathy, anemia, and neoplastic  
disease. In addition, these risks include the risk of infection with  
novel infectious agents generated by recombination in vivo, the  
consequences of which are unknown; the risk of insertional mutagenesis  
through disruption of the normal genetic sequence, resulting in altered  
gene expression; and the risk of inadvertent modification of the  
patient's germline and its effect on future offspring.     

Although xenotransplantation provides a potential approach to  
address the shortage of human organs and for treatment of disease, the  
use of xenotransplantation products raises concerns about possible  
infection of the recipient and, subsequently, the public at large with  
both known and as-yet- unrecognized infectious agents. Experience with  
human allograft transplantation has demonstrated the potential for  
transmissibility of infections from donor to recipient through  
transplants (Refs. 1 to 3). The direct contact resulting from  
implantation of a xenotransplantation product into a recipient, with  
the associated disruption of anatomical barriers and the  
immunosuppression of the recipient, may facilitate interspecies  
transmission of xenogeneic infectious agents. The potential for  
subsequent transmission of a xenogeneic infectious agent from the  
recipient to the recipient's close contacts, and propagation through  
the general human population, is an additional risk and a recognized  
public health concern.     

Insertional mutagenesis is a risk potentially associated with the  
infection of xenotransplant recipients and their close contacts and the  
general population with xenogeneic retroviruses. In addition to  
potential horizontal transmission of infectious agents from the  
recipient of a xenotransplantation product to the recipient's contacts,  
there is concern regarding vertical transmission of infectious agents  
from the recipient to progeny during gestation (e.g., transmission from  
mother to fetus of infectious agents across the placenta or during  
parturition). Vertical transmission of xenogeneic infectious agents  
could result in the development of infectious disease in progeny. In  
addition, vertical transmission of xenogeneic viruses can result in  
insertional mutagenesis with disruption of normal human development or  
integration into the germline resulting in transmission to future  
generations.  

[[Page 4690]]      

Thus, human gene therapy and xenotransplantation investigative  
approaches individually pose: (1) Risks that extend beyond the  
individual (e.g., public health risks, including the potential for the  
transmission of infectious agents from the recipient to the public at  
large); and (2) risks of inadvertent modification of the germline  
(alterations of the genetic material of the progeny). Moreover, these  
approaches may also be used in combination (e.g., xenotransplantation  
products genetically modified before implantation), resulting in  
complex questions and issues for consideration and discussion prior to  
and during human clinical trials. 

3. Public Education and Informed Consent Issues     

Human gene therapy and xenotransplantation investigations call for  
additional mechanisms to provide the public access to clinical trial  
information relevant to the assessment of risks and benefits, and to  
informed consent. Special care is needed to ensure that individual  
subjects understand the experimental nature of the procedures and their  
known and unknown risks and burdens. Human gene therapy and  
xenotransplantation require the evaluation of risks to third parties  
such as health care workers, close contacts of the recipient, and the  
community. The informed consent process should address the need for  
long-term surveillance and post-mortem analysis and potential  
infectious disease risks to recipients and their contacts.     

These investigative approaches raise new challenges for the local  
review bodies responsible for ensuring the safe and ethical conduct of  
this research. Local IRB's are responsible for reviewing biomedical and  
behavioral research involving human subjects, to protect the rights of  
human subjects (45 CFR part 46, Protection of Human Subjects, and 21  
CFR part 56, Institutional Review Boards). Institutional Biosafety  
Committees (IBC's) are responsible for reviewing and overseeing basic  
and clinical research conducted at their institutions. The IBC assesses  
the safety of the research and identifies any potential risk to public  
health or the environment (section IV-B-2 National Institutes of Health  
(NIH) Guideline for Research Involving Recombinant DNA Molecules). This  
proposed rule would provide a mechanism for public access to human gene  
therapy and xenotransplantation clinical trial information and for  
public education, informed discussion and participation that can form a  
foundation for safe and ethical research in these innovative areas.     

The proposed rule would enhance the development of related Federal  
initiatives that provide for public access to clinical trial  
information through national data bases: There are also a number of  
Internet sites sponsored by associations, clinical centers or academic  
institutions, and nonprofit organizations that provide public access to  
similar types of clinical trial information. Examples include: Center  
Watch Clinical Trials Listing Service at http://www.centerwatch.com, a  
resource both for patients interested in participating in clinical  
trials and for research professionals; http://www.HealthAtoZ.com, a  
search engine for health and medical Internet resources; the Musella  
Foundation for brain tumor research and information, at  
http://www.virtualtrials.com; the National Alliance of Breast Cancer  
Organizations, at http://www.nabco.org, which, 
in an effort to increase  
awareness of clinical trials, lists brief descriptive summaries of  
clinical trials in the National Cancer Institute Physician Data Query  
(NCI PDQ) data base; the University of Michigan, at http:// www.cancer.med.umich.edu, which lists clinical trials at the University  
of Michigan Cancer Center (UMCC) and supplies links to external  
clinical trials and resources; the former Surgeon General C. Everett  
Koop's Internet site, at  
http://www.drkoop.com, which allows the public to browse through a  
listing of therapeutic areas where volunteers are being sought for  
clinical trials; Biotechnology Industry Organization, a trade  
association, at http://www.bio.org, which lists press releases and  
industry news, and provides links to patient groups and professional  
medical societies; and http://www.investor.biospace.com, which has not  
only a biotechnology search engine that links to hundreds of companies,  
but also extensive information on the latest technologies and clinical  
trials, as a basis for investment. The proposed rule should facilitate  
the development of similar data bases, either publicly or privately  
sponsored, with information concerning the study of gene therapy and  
xenotransplantation. As provided under section 113 of the Food and Drug  
Modernization Act of 1997 (Public Law 105-115), NIH, through its  
National Library of Medicine, has created a national clinical trials  
data base at http://clinicaltrials.gov to provide patients, family  
members, and other members of the public with current information about  
clinical research studies. 

4. Basis for Disclosure     

Historically, public disclosure of information with regard to human  
gene therapy and xenotransplantation has assisted FDA in performing its  
duties and has benefitted the public. The categories of information  
that may be made publicly available by FDA as a result of this  
disclosure rule include information currently made public by other  
Federal agencies in connection with advisory committee meetings or  
other public workshops or meetings, and through general commercial  
disclosure.     

The NIH Office of Biotechnology Activities (OBA; formerly the  
Office of Recombinant DNA Activities) administers the Recombinant DNA  
Advisory Committee (RAC). This committee was established in October  
1975, in response to concerns about the potential public health risks  
and environmental hazards posed by recombinant DNA research, as well as  
the significant ethical, legal, and societal issues associated with  
this emerging technology. The RAC has met quarterly in open public  
session to discuss these issues and, since the first human gene  
transfer clinical trial was proposed in 1988, the committee has  
publicly reviewed selected human gene transfer clinical trial  
protocols. The minutes of RAC discussions of human gene transfer  
clinical trials and related issues are accessible to the public via the  
OBA website (http://www.nih.gov/od/oba/index.htm). RAC review and  
public discussions provide an important mechanism for receiving public  
input into Federal policy development and for making the public aware  
of potential toxicities and adverse events associated with gene  
transfer products. As one example, when a participant in a cystic  
fibrosis gene transfer clinical trial required intensive care treatment  
for an acute adverse event suffered shortly after administration of an  
adenoviral gene transfer product, the investigator was invited to  
discuss the occurrence with other experts in the field at the next  
public RAC meeting. This public discussion and analysis facilitated  
both dissemination of important information about this toxicity and  
enhanced understanding of its pathogenesis, thereby contributing to the  
safety of patients in other gene therapy trials.     

NIH also collects information on gene transfer studies and makes it  
available to the public. Appendix M of the "NIH Guidelines for  
Research Involving Recombinant DNA Molecules" (Ref. 4) requires that  
investigators provide specific information for the purposes of protocol  
registration, RAC review, and  

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potential public discussion, and that this information should not  
contain confidential commercial information or trade secrets, enabling  
all aspects of RAC review to be open to the public. The required  
information includes scientific and nontechnical abstracts, the  
informed consent document, statements on privacy and confidentiality,  
reports of serious adverse events, protocol amendments, and annual  
followup reports. Public disclosure of this information has facilitated  
progress and has contributed to improved patient safety in the field of  
human gene transfer by providing public access to clinical trial  
information, rapid dissemination of adverse event information, and  
summary information regarding outcomes of gene therapy clinical trials  
and adverse events.     

All investigators receiving any NIH funds for basic and/or clinical  
research involving recombinant DNA molecules, and all investigators  
affiliated with institutions receiving any NIH funds for basic and/or  
clinical research involving recombinant DNA molecules, must comply with  
the NIH Guidelines. The NIH Guidelines also apply to collaborations  
between NIH-funded or affiliated researchers and privately funded  
investigators. In addition, commercial sponsors not affiliated with a  
NIH-funded institution have voluntarily submitted materials to OBA for  
RAC review. Therefore, the general practice in the field of human gene  
transfer has been to submit to NIH, OBA the information required under  
NIH Guidelines with the understanding that the information will be  
available for RAC review and potentially public discussion. This  
suggests that the information specified in Appendix M is not generally  
considered to be proprietary and that its disclosure does not impede  
commercial development.     

The categories of information that would be disclosed as a result  
of this rulemaking include information that generally has been made  
public for xenotransplantation protocols. Sponsors of  
xenotransplantation IND's have publicly disclosed information regarding  
the scope of xenotransplantation clinical trials and the development of  
public health safeguards through: (1) Open public sessions of the  
Xenotransplantation Subcommittee of the Biologics Response Modifiers  
Advisory Committee (BRMAC) for the Center for Biologics Evaluation and  
Research (CBER), FDA (December 17, 1997, June 3 and 4, 1999, and  
January 13, 2000), and (2) Public Health Service (PHS) sponsored public  
workshops, including the workshop entitled "Developing U.S. Public  
Health Policy in Xenotransplantation," January 21 and 22, 1998, at  
which xenotransplantation clinical trials under FDA IND's were  
summarized by the sponsor or by a sponsor's designee. Transcripts of  
these meetings can be found on the CBER Internet site at http:// 
www.fda.gov/cber. At these public meetings, FDA scientists and others  
presented data demonstrating that porcine endogenous retroviruses could  
be activated and could infect human cells in vitro, and the  
implications of these data for porcine xenotransplantation product 
 development and regulation were discussed. Based on these discussions,  
the BRMAC concurred with FDA's decision to place all porcine  
xenotransplantation clinical trials on clinical hold. During these 
meetings, FDA publicly discussed testing requirements and results  
needed by manufacturers in order to address and remove the clinical  
hold, and allowed sponsors of porcine xenotransplantation IND's the  
opportunity to present testing strategies, assuring the industry of  
consistency in regulation. The public as well was assured that Federal  
oversight was being conducted in a responsible manner.     

Information related to the categories of information FDA proposes  
to disclose is available through publicly accessible filings to the  
Securities and Exchange Commission (SEC). The Securities Act of 1933  
requires that investors receive financial and other significant  
information concerning securities being offered for public sale. In an  
annual filing, a company must provide a comprehensive overview of its  
business. This includes a description of ongoing research programs  
including discussion of clinical study safety and efficacy results,  
disclosure of investigational sites and the investigators involved,  
plans for product development and commercialization, and financial  
information. This information may be found on the SEC Internet site at  
http://www.sec.gov/edgarhp.htm.     

n addition, voluntary disclosure of information regarding clinical  
trials of unapproved products and therapies by individual sponsors over  
the Internet has become widespread. Company Internet sites often  
provide this information in the form of descriptive summaries of  
clinical trials, press releases, recruitment opportunities for  
patients, investment opportunities, and general awareness material.     

Thus, information of the kind FDA proposes to disclose concerning 
clinical trials on human gene therapy and xenotransplantation is  
already widely disclosed. This disclosure has not impeded commercial  
development of these products. In addition, the agency considers public  
disclosure of data and for information from human gene therapy or  
xenotransplantation clinical trials essential for public education, and  
for informed discussion and consideration of the public health and  
safety risks associated with the use of these investigational  
therapies.  

II. Overview of Proposed Rule  

A. Scope      

The scope of this proposed rule is limited to disclosure of  
information related to human gene therapy and xenotransplantation.  
Confidential commercial information, such as information regarding  
commercial licensing agreements or the identification of suppliers,  
trade secret manufacturing information, names and other personal  
identifiers of patients and, except as specifically provided in the  
regulations, names and personal identifiers of third parties, such as  
physicians, hospitals, etc., and, at FDA's discretion, interagency or  
intra-agency memoranda and letters would not be disclosed. FDA is  
proposing only to disclose certain information necessary to ensure a  
continued mechanism for public education and input, which FDA believes  
is essential to the evaluation of the public health impact of these new  
technologies. FDA believes that these categories of information have  
not been considered to be proprietary, since they have been made  
publicly available through various mechanisms and their disclosure has  
not impeded commercial development. The public expects the current  
level of information disclosure and public review to continue in the  
areas of human gene therapy and xenotransplantation where there is  
potential risk to the public health.     

The categories of information related to an IND that would be  
disclosed under this regulation include: (1) Product and patient safety  
data and related information, including results from preclinical and  
clinical studies and tests that demonstrate the safety and/or  
feasibility of the proposed procedures; (2) the name and address of the  
sponsor; (3) the clinical indications to be studied; (4) the protocol  
for each planned study, to include a scientific abstract and a  
nontechnical abstract, a statement of the objectives, purpose, and  
rationale of the study, the name and address of each investigator, the  
name and address of the official contacts of each local review body as  
appropriate (IRB, IBC) and dated copies of approval by each group, the  
criteria for patient selection and  

[[Page 4692]]  

exclusion, an estimate of the number of patients to be studied, a  
description of the treatment that will be administered to patients, and  
the clinical procedures, laboratory tests, or other measures to be  
taken to monitor the safety and effects of the drug in human subjects  
and to minimize risk; (5) written informed consent forms; (6)  
identification of the biological product(s) and a general description  
of the method of production, including a description of product  
features that may affect patient safety; (7) IND safety reports; (8)  
information submitted to FDA in the annual report; (9) the regulatory  
status of the investigation, the date of such action, and the reason  
for such action; and (10) other relevant data and information that the  
Director, CBER, determines are necessary for the appropriate  
consideration of the public health and scientific issues, including  
relevant ethical issues, raised by human gene therapy or  
xenotransplantation.     

To facilitate public disclosure of this information, FDA proposes  
to require sponsors of human gene therapy and xenotransplantation  
clinical trials to submit to FDA the information defined above upon  
submission of: (1) The initial IND, (2) any amendment documenting  
changes or additions to the IND, at the time the amendment goes into  
effect, (3) IND safety reports, and (4) annual reports. FDA is not  
proposing to require the submission of any new information not  
previously submitted as part of the IND process. For example, FDA is  
not proposing that all variations and updates of informed consent forms  
be submitted to FDA for public disclosure; however, under the proposed  
rule, FDA would disclose any sample informed consent forms generally  
submitted with an initial IND submission.     

The agency requests comment on whether this rulemaking should apply  
to information as defined above that is submitted in a BLA. Public  
disclosure of information in a BLA would provide a continuation of the  
availability of information for public disclosure up until the time of  
license approval. A disadvantage would be the amount of documentation  
that would be required to be submitted in order to support this  
initiative.     

The proposed provisions of this rulemaking do not alter the 
procedures specified in part 312 for submission of an IND. However,  
with regard to clinical holds of an IND (Sec. 312.42), FDA would be  
able to place a human gene therapy or xenotransplantation investigation  
on clinical hold if the sponsor does not submit to the agency the  
redacted version of data and information for public disclosure, or if  
the redacted version submitted is incomplete or not properly redacted.  

B. Legal Authority      

The proposed regulation would make available for public disclosure  
specified safety and effectiveness information submitted in support of  
an IND \1\ involving either a human gene therapy or xenotransplantation  
protocol. This information, discussed thoroughly in section II.C of  
this preamble, includes protocols, criteria for patient selection and  
exclusion, summary results of preclinical and clinical studies of the  
investigational article, a summary of the treatment that will be  
administered and the measures that will be taken to minimize risk to  
human subjects, safety reports, informed consent documentation, and  
information concerning the regulatory status of the product, such as  
whether it is on clinical hold and the reason for the hold. While such  
information relating to human gene therapy protocols has routinely been  
made available to the public through the NIH RAC process for the last  
20 years, FDA regulations have consistently provided that similar  
information submitted to FDA as part of an IND is not publicly  
available. (See Secs. 601.50 and 601.51.) This proposed rule is an  
attempt to harmonize these approaches for public review of important,  
new, but potentially hazardous and controversial, therapies. In this  
way, FDA will be able to more fully participate in existing and future  
venues for obtaining educated public input and discussion that could  
inform the agency's deliberations. The agency believes that there is  
great benefit in having human gene therapy and xenotransplantation  
products scrutinized, as they are being developed, by individuals with  
a wide variety of perspectives, including scientists from different  
disciplines, biomedical ethicists, patient advocacy organizations, and  
the general public, because of the unique blend of proposed benefit as  
well as potential risk to society that these products possess.  
Investigations of these types of products raise serious ethical and  
scientific issues, and, therefore, the decisionmaking process should be  
as transparent and fully informed as possible.

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\1\While human gene therapy and xenotransplantation protocols  
are generally regulated by CBER as biological products, it is  
possible that some of these products may be combination products  
consisting of biological components, drug components, and device  
components. The same rules of disclosure will apply to the drug or  
device components of combination products under the same theories  
discussed later in this section.

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The proposed rule would formalize the existing practice of making  
certain specified types of safety and effectiveness information in  
IND's for human gene therapy and xenotransplantation publicly  
available. Such disclosure is necessary in order to protect the public  
health by informing the research community and the public of the nature  
and the hazards of the proposed research and by permitting comment on  
the merits of the proposed research.     

The Freedom of Information Act (FOIA), 5 U.S.C. 552, generally  
provides that Federal agencies must disclose information in their files  
to the public on request. FOIA is designed to make federal agency  
records or information available to the public. The Supreme Court has  
stated that, "The basic purpose of [the] FOIA is to ensure an informed  
citizenry, vital to the functioning of a democratic society, needed to  
check against corruption and to hold the governors accountable to the  
governed." (See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242  
(1978).)     The statute provides nine exemptions and three law enforcement  
exclusions that agencies may use to protect specific categories of  
information from disclosure (5 U.S.C. 552(b)). These exemptions are the  
only basis for withholding information requested by the public under  
the FOIA \2\ and are discretionary, not mandatory. (See Chrysler Corp.  
v. Brown, 441 U.S. 281 (1979).) One of these exemptions is particularly  
relevant to this proposed rule and the disclosure of information in  
applications to investigate and market human gene therapy and  
xenotransplantation products.

---------------------------------------------------------------------------

\2\ It should be noted here that section 301(j) of the act  
prohibits the public disclosure of information, obtained under  
certain sections of the act, "concerning any method or process  
which as a trade secret is entitiled to protection." (See 21 U.S.C.  
331(j).) In addition, the so-called Federal Trade Secrets Act also  
contains certain restrictions on the public disclosure of trade  
secret and confidential commercial information. The Trade Secrets  
Act does provide for the disclosure of confidential commercial  
information where such disclosure is "authorized by law." (See 18  
U.S.C. 1905.) 

---------------------------------------------------------------------------      

Exemption 4 of the FOIA protects trade secrets and confidential  
commercial information from public disclosure. (See 5 U.S.C.  
552(b)(4).) While trade secret information, narrowly defined as secret,  
commercially valuable information related to manufacturing methods or  
processes, is present in all IND's and biological product files,  
including those subject to this proposed rule, this  

[[Page 4693]]  

proposal will not affect the confidentiality of such information, and  
therefore it will not be discussed. Confidential commercial information  
is defined under exemption 4 as "commercial or financial information  
obtained from a person and privileged or confidential." Each element  
of the definition must be satisfied for information to be confidential  
commercial information entitled to protection under exemption 4.     

Historically, much of the data and information submitted in IND's 
and unapproved biological product files has been considered  
confidential commercial information. (See Public Citizen Health  
Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983); R & D  
Laboratories, Inc. v. FDA No. 00-CV-0165 (D.D.C. Sept. 7, 2000).) FDA's  
general information disclosure regulations define confidential  
commercial information, and provide that information submitted to FDA  
that falls within this definition is not disclosable. (See 21 CFR  
20.61.) Further, the regulations that apply to the submission of IND's  
and biological product files define the contents of these applications  
as confidential commercial information generally exempt from disclosure  
and, indeed, even prohibit the agency from acknowledging the existence  
of an application (prior to approval) if it has not already been  
publicly disclosed. (See 21 CFR 312.130, 601.50, and 601.51.) The  
regulations provide different rules for disclosure after an approval  
letter has been sent, and when the application has been terminated,  
abandoned, or otherwise no longer has commercial value.     

The agency is exercising its legal authority to promulgate new  
regulations that will make explicit and will formalize the  
circumstances and means by which certain safety and effectiveness  
information in these special types of applications will be made  
available for public disclosure. Such a change is especially warranted  
when, as here, the change is being made in large part to reflect the  
actual environment in which human gene therapy and xenotransplantation  
applications exist.     

As has been discussed elsewhere in this preamble (in section I.B,  
Issues Related to Human Gene Therapy and Xenotransplantation), sponsors  
of IND's pertaining to human gene therapy have publicly disclosed the  
types of information covered by this proposed rule for many years as  
part of the process overseen by the RAC. Likewise, there has been  
widespread practice in the field of xenotransplantation to make  
publicly available a great deal of information concerning details of  
trials of xenotransplantation products during public advisory committee  
meetings and workshops sponsored by FDA and by the U.S. PHS.  
Information that is publicly disclosed by its owner cannot be  
confidential within the meaning of the FOIA and, as a result, can be  
made available for public disclosure by FDA. (See CNA Fin. v. Donovan,  
830 F.2d 1132, 1154 (D.C. Cir. 1987).) The fact that these types of  
information cannot be considered confidential is the principal basis  
for issuing this proposed rule.     

This proposed rule contains the public disclosure procedures the  
agency will apply to the safety and effectiveness information in human  
gene therapy and xenotransplantation applications that has historically  
been treated as confidential commercial information by the agency.  
These procedures will follow the consistent practice in the fields of  
human gene therapy and xenotransplantation of making such information  
available to the public. It is important to note that while certain  
safety and effectiveness data and information will be publicly  
available under this proposed rule, FDA does not intend to disclose the  
full reports of safety and effectiveness on the basis of which the  
product may be approved. FDA believes that, prior to approval of a  
biological product file, the full reports constitute confidential  
commercial information, as they traditionally have under the agency's  
regulations, and should not be released. (See 21 CFR 601.51(d).)  
However, under Sec. 601.51(e), all safety and effectiveness data and  
information do become publicly available after a license is issued, and  
this practice will not be changed by this proposal.     

In addition to the full reports, the agency also wishes to make  
clear that it will continue its current policy of not releasing  
confidential commercial information that is contained in a human gene  
therapy or xenotransplantation IND or unapproved biological product  
file. Examples of confidential commercial information that may exist in  
these applications would include information concerning licensing  
agreements and information identifying suppliers. This information  
ordinarily will remain confidential under exemption 4 unless it has  
already been publicly disclosed by the sponsor. Such business-related  
information is also not the type of information that FDA believes  
should be disclosed to further the public discussion and evaluation of  
human gene therapy and xenotransplantation trials. In addition, this  
proposed rule will not affect the rules governing the disclosure of  
personal medical and other similar information, the disclosure of which  
would cause an unwarranted invasion of personal privacy. (See 21 CFR  20.63.)     

Based on the authorities discussed, the agency proposes to require  
sponsors of IND's related to human gene therapy and xenotransplantation  
to disclose certain specified safety and effectiveness data and  
information. This proposal will formalize and codify the existing  
practice in these fields under which these data and information have  
been publicly disclosed by their sponsors. Disclosure is especially  
necessary regarding these new, important, and also controversial  
technologies so that the research community and the public can be  
assured of the safety of conducting clinical trials of these products.     

This proposal would require the sponsors of human gene therapy or  
xenotransplantation IND's to submit to FDA publicly available versions  
of information FDA requires in such IND's. The purpose of this  
requirement is to facilitate FDA's efforts to make important  
information concerning human gene therapy and xenotransplantation IND's  
available to the public in a timely and efficient manner. Sponsors  
would have to redact the information from IND submissions specified in  
proposed Sec. 601.53. Sponsors would redact trade secrets, confidential  
commercial information, such as licensing agreements and suppliers, and  
names and other personal identifiers of patients and, except as  
specifically provided in the regulations, names and personal  
identifiers of third parties, such as physicians, hospitals, etc. (See  
Secs. 20.61 and 20.63.) It would not be necessary for sponsors to  
redact the vast majority of the information in human gene therapy and  
xenotransplantation IND's since, as described in this proposal, such  
information would be publicly disclosable.     

The proposed rule would also specify that FDA may place a human  
gene therapy or xenotransplantation investigation on clinical hold if  
the sponsor has not submitted to the agency a redacted and thus  
disclosable version of the required IND information that complies with  
the requirements of proposed Sec. 601.53. A sponsor must properly purge  
its redacted version of trade secrets, confidential commercial  
information, and names and other personal identifiers and, except as  
specifically provided in the regulations, names and personal  
identifiers of third parties, such as physicians, hospitals,  

[[Page 4694]]  

etc. Section 505(i)(3) of the act authorizes FDA to prohibit a sponsor  
of an investigation from conducting that investigation if FDA  
determines that the drug involved represents an unreasonable risk to  
the safety of persons who are the subjects of the clinical  
investigation, or if there are other reasons that FDA has established  
by regulation for which the agency may issue a clinical hold. FDA  
recognizes that errors in redacting may occur and will provide sponsors  
with an opportunity to correct such errors. However, FDA will have the  
enforcement authority to place a human gene therapy and  
xenotransplantation investigation on clinical hold if resolution is not  
reached on any discrepancies found by FDA in the redacted versions, or  
if a redacted version is not submitted at all by the sponsor. As  
described in this proposal, it is important for proposed and ongoing  
human gene therapy and xenotransplantation investigations to be the  
subject of public education, discussion, and consideration in order for  
all relevant issues, including safety, to be explored.     

As stated above, FDA has tentatively concluded that the information  
that would be disclosed as a result of this rulemaking is, in fact,  
already being made public through a variety of mechanisms, and  
therefore cannot be considered confidential. As such, it does not  
constitute confidential commercial (or trade secret) information within  
the meaning of FOIA Exemption 4.     

However, FDA's issuance of this proposed rule is authorized even if  
the information to be disclosed could be considered confidential  
commercial information covered by Exemption 4 and within the scope of  
protection of the Trade Secrets Act (18 U.S.C. 1905). That statute  
prohibits the disclosure of confidential commercial or trade secret  
information, except as "authorized by law." Because agency  
regulations that specifically provide for the disclosure of such  
information can supply the requisite legal authorization for release of  
the information for purposes of the Trade Secrets Act, that statute  
would not present a bar to any of the disclosures contemplated by this  
proposed rule. (See, e.g., CNA Financial Corp., 830 F.2d 1132, 1138- 
1139 (D.C. Cir. 1987)).     

The broad rulemaking authority conferred on FDA by Congress under  
the act (21 U.S.C. 201 et seq.) permits the agency to amend its  
regulations as contemplated by this proposed rule.     

Section 505(i) of the act (21 U.S.C. 355(i)) gives FDA the  
authority to issue regulations imposing conditions on the investigation  
of new drugs. In addition to prescribing certain mandatory conditions,  
that section further provides that the agency may impose "other  
conditions" as necessary "relating to the protection of the public  
health." (21 U.S.C. 355(i)). This language was added to the act as  
part of the Drug Amendments of 1962 (Public Law 87-781) to make it  
"clear that the conditions prescribed in the [bill] are not the sole  
conditions that may be imposed for the protection of public health."  
H.R. Conf Rep. No. 2526, at 20 (1962), reprinted in 1962 U.S.C.C.A.N.  
2927, 2929. Legislative history relating to these amendments also  
indicates that one purpose of the bill was to make "information on  
drugs * * * more readily available to physicians and the general  
public." (S. Rep. No. 1744, at 1 (1962), 1962 U.S.C.C.A.N. 2884).  
FDA's broad discretion in adopting regulations under this language has  
been upheld by the courts. (United States v. Garfinkel, 29 F.3d 451  
(8th Cir. 1994)).     

The proposed amendments to FDA's regulations are within FDA's  
statutory discretion in imposing conditions on products under  
development to promote the public health. The public health often is  
served not only by collection of research data and information, but  
also by disclosure of such information. (See e.g., Dole v. United  
Steelworkers of America, 494 U.S. 26, 28 (1990)).     

The proposed rule would serve several significant public health  
goals. It would enhance the ability of patients with serious and 
life- threatening diseases and others seeking information about emerging  
therapies to obtain critically important information from FDA about the  
existence of clinical trials in which they might participate, about  
possible safety problems associated with the products they are taking,  
and about the regulatory status of applications pending before the  
agency.     

As an aftermath of recent problems in clinical trials involving  
gene therapy products, FDA and NIH have launched two new initiatives to  
further strengthen the safeguards for individuals enrolled in clinical  
studies for gene therapy. One initiative, the Gene Therapy Clinical  
Trial Plan, would ensure: That sponsors meet their obligation to  
adequately monitor the clinical trials for which they are responsible;  
that there is appropriately independent oversight of such clinical  
trials; and that there is an increased level of government oversight,  
through increased inspection frequency and review of sponsors'  
monitoring plans and other clinical trial practices. Under the other  
initiative, FDA and NIH will, several times per year, convene Gene  
Transfer Safety Symposia to provide a critical forum with experts in  
gene transfer for the sharing and analysis of medical and scientific  
data from gene transfer research. FDA and NIH support will also be  
provided for professional organizations and academic centers to hold  
safety conferences focused on gene therapy. These safety symposia and  
educational outreach efforts are intended to guide the conduct of  
current clinical trials and enhance the design of future gene transfer  
trials to maximize public safety.     

The ready availability of information concerning clinical trials  
involving gene therapy is essential to the success of these efforts.  
For example, such information would be discussed at the government's  
safety symposia, may be made available for other scientific discussions  
and to the general public, and would be used in evaluating current gene  
therapy practices, including sponsor monitoring and informed consent  
standards. Likewise, FDA intends to continue to sponsor and support  
government, professional, and academic conferences related to  
xenotransplantation. Thus, FDA believes that the disclosure of  
information contained in INDs related to gene therapy and  
xenotransplantation trials is essential to patient safety and  
appropriate informed consent.     

In addition to section 505(i), section 701(a) of the act (21 U.S.C.  
371(a)) gives FDA general rulemaking authority to issue regulations for  
the efficient enforcement of the act. A regulation issued under section  
701 of the act will be sustained as long as it is reasonably related to  
the purposes of the act. (United States v. Nova Scotia Food Prod.  
Corp., 568 F.2d 240, 246 (2d Cir. 1977)). Section 903(b) of the act (21  
U.S.C. 393(b)) explicitly states that the mission of FDA includes the  
promotion and protection of the public health. It has long been  
recognized by the courts, including the Supreme Court, that the primary  
purpose of the act is the protection of public health (United States v.  
An Article of Drug, Bacto-Unidisk, 394 U.S. 784, 798 (1969)). As a  result, 
FDA's rulemaking authority under section 701(a) of the act has  
been broadly construed to uphold a wide variety of the agency's  
rulemaking activities intended to protect the public health. (See e.g.,  
National Ass'n of Pharmaceutical Mfrs. v. FDA, 637 F.2d 877 (2d Cir.  
1981)) (current good manufacturing practice regulations);  
Pharmaceutical Mfrs. Ass'n v. FDA, 484 F. Supp. 1179 (D. Del. 1980)  
(rule requiring disclosure of drug side effects to patients); American  
Frozen Food Inst.  

[[Page 4695]]  

v. Mathews, 413 F. Supp. 548 (D.D.C. 1976) (rule establishing common  
and usual names for certain nonstandard foods to provide consumers with  
relevant buying information), aff'd, 555 F.2d 1059 (D.C. Cir. 1977);  
National Nutritional Foods Ass'n v. Weinberger, 376 F. Supp. 142  
(S.D.N.Y.) (rule requiring that certain vitamin preparations be  
restricted to prescription sale and be labeled accordingly), aff'd, 512  
F.2d 688 (2d Cir. 1975)), cert. denied, 423 U.S. 827 (1975). FDA  
believes that its rulemaking authority under section 701(a) of the act  
supports the amendments proposed here because they advance public  
health goals concerning gene therapy and xenotransplantation studies.     

FDA is also proposing to issue this new regulation under the  
authority of section 361 of the Public Health Service Act (PHS Act) (42  
U.S.C. 264). Under section 361 of the PHS Act, FDA may make and enforce  
regulations necessary to prevent the introduction, transmission, or  
spread of communicable diseases between the States or from foreign  
countries into the States. (See sec. 1, Reorg. Plan No. 3 of 1966 at 42  
U.S.C. 202 for delegation of section 361 of the PHS Act authority from  
the Surgeon General to the Secretary, Health and Human Services; see 21  
CFR 5.10(a)(4) for delegation from the Secretary to FDA.) Intrastate  
transactions may also be regulated under section 361 of the PHS Act.     

This proposed regulation is part of a regulatory program that will  
further the goal of preventing the introduction, transmission, or  
spread of communicable disease. For this regulatory system to be  
effective in preventing the spread of disease, FDA must be able to  
regularly make publicly available information regarding these  
experimental procedures. By providing sponsors, clinical investigators,  
patients and their families, and the general public with access to the  
types of information proposed in this rule, FDA will be able to more  
rapidly identify and react appropriately to newly discovered or  
understood risks in order to prevent the spread of communicable  disease.     

Studies in the areas of gene therapy and xenotransplantation are  
conducted to explore the potential for considerable benefits. However,  
use of these procedures, particularly in the case of  
xenotransplantation, poses potential risks for the transmission of  
infectious disease. Infectious disease public health concerns focus not  
only on the transmission of known zoonoses, but also on the  
transmission of infectious agents as yet unrecognized. The disruption  
of natural anatomical barriers and immunosuppression of the recipient  
increase the likelihood of interspecies transmission of xenogeneic  
infectious agents. An infectious agent may pose risks if it can infect,  
cause disease in, and transmit among humans, or if its ability to  
infect, cause disease in, or transmit among humans remains inadequately  
defined. The public availability of information this proposed rule  
envisions will permit public attention to any emerging risks associated  
with these experimental techniques, early detection and definition of  
which will permit the agency and sponsors to take steps to prevent or  
minimize the introduction of communicable disease.     

An additional concern is that these infectious agents could  
subsequently be transmitted from the patient to family members and  
other close contacts of the patients, to health care personnel, and to  
other members of the public. Because the potential risk of transmission  
of infectious disease extends beyond the patient receiving the  
treatment, it is vital that the public, as well as the patient, be  
informed and educated about potential infectious disease risks and  
methods for reducing those risks. Close contacts should understand the  
uncertainty regarding the risks of xenogeneic infections, behaviors  
known to transmit infectious agents from human to human (e.g.,  
unprotected sex, breast feeding, intravenous drug use with shared  
needles, and other activities that involve potential exchange of blood  
or other body fluids) and methods to minimize the risk of transmission.  
Close contacts of recipients also need to know about the importance of  
reporting any significant unexplained illness through their health care  
provider to the research coordinator at the institutions where the  
xenotransplantation was performed. This broader concern for the spread  
of communicable disease is reflected in the proposed requirements  
providing for public disclosure. While informed consent procedures may  
try to address these educational needs, the public release and  
discussion of information that this proposed rule calls for is also  
necessary to ensure that all those potentially at risk have the  
information to manage these risks and so avoid or minimize the spread  
of communicable disease.     

For all the above reasons, to promote and protect the public  
health, FDA is proposing to issue this proposed rule providing for  
public disclosure of certain information relating to gene therapy and  
xenotransplantation.  

C. Discussion of the Proposed Rule      

The proposed rule would create a new Sec. 601.52 entitled  
"Availability for public disclosure of certain data and information  
related to human gene therapy or xenotransplantation" and Sec. 601.53  
entitled "Submission to FDA of certain data and information related to  
human gene therapy or xenotransplantation for public disclosure." In  
addition, conforming amendments are proposed to Secs. 20.100, 312.42,  
312.130, 601.50, and 601.51. The provisions of this rulemaking do not  
alter the procedures specified in part 312 for submission of an IND.  
The proposed regulations are discussed below. 

1. Sections 601.50 and 601.51     

Part 601 (21 CFR part 601) sets forth provisions that govern the  
licensing of biologic products by the FDA. Existing procedures and  
requirements regarding confidentiality of data and information  
contained in IND's for biological products or biologics license  
applications are described in Secs. 601.50 and 601.51. The proposed  
rule would amend Secs. 601.50 and 601.51 to include language that would  
reference the exceptions proposed in Sec. 601.52 regarding the  
availability for public disclosure of certain data and information  
related to human gene therapy or xenotransplantation. Specifically, 
Secs. 601.50(a) and 601.51(a) would be amended to add the words,  
"Except as provided in Sec. 601.52."     

In addition, FDA is proposing to amend the Sec. 601.50 section  
heading and Sec. 601.50(a) to replace the word "notice" with  
"application" to be consistent with other current regulations  
regarding investigational new drugs, i.e., part 312. 
2. Proposed Sec. 601.52     

Proposed Sec. 601.52 would set forth the requirements regarding the  
availability for public disclosure of certain data and information  
related to human gene therapy or xenotransplantation. These provisions  
would define the therapies and scope of the proposed regulation, and  
describe the types of data and information related to human gene  
therapy and xenotransplantation that may be disclosed by FDA.     

a. Definitions. Proposed Sec. 601.52(a) would include definitions  
of human gene therapy and xenotransplantation that are consistent with  
existing agency policy and guidance regarding these therapies. Proposed  
Sec. 601.52(a)(1) would define "human gene therapy" to mean the  
administration of genetic material in order to modify or manipulate the  
expression of a gene  

[[Page 4696]]  

product or to alter the biological properties of living cells for  
therapeutic use. FDA interprets this definition to include both the ex 
vivo and in vivo modification of cells. Proposed Sec. 601.52(a)(2)  
would define "xenotransplantation" to mean any procedure that  
involves the transplantation, implantation, or infusion into a human  
recipient of either: (a) Live cells, tissues, or organs from a nonhuman  
animal source, or (b) human body fluids, cells, tissues, or organs that  
have had ex vivo contact with live nonhuman animal cells, tissues, or  
organs. This definition of xenotransplantation does not include the use 
of products that are nonliving, acellular products such as porcine  
heart valves, porcine insulin, or bovine serum albumin. The definition  
also does not include non-animal cells and tissues, such as bacteria  
and plant cells.     

Because the terms "human gene therapy" and  
"xenotransplantation" are not currently used elsewhere in the  
regulations, FDA is proposing that, for the convenience of the user,  
the definitions be included in proposed Sec. 601.52. If, in the future,  
additional regulations are issued using these terms, FDA intends to 
move these definitions to the section of the regulations which  
currently includes definitions of other terms applicable to biological  
products (21 CFR 600.3).     

b. Scope. Proposed Sec. 601.52(b) would describe the scope of the  
proposed regulation. Consistent with the use of the terms "human gene  
therapy" and "xenotransplantation," FDA intends that the proposed  
rule apply to the procedures, not specific products used in the  
therapies, although data and information regarding a product may be  
disclosed as proposed in Sec. 601.52(c). FDA intends with this broadly- 
defined scope that the proposed regulation apply to any experimental  
use of human gene therapy and xenotransplantation, although the  
immediate impact of the proposed regulation would be on investigational  
products. For example, the proposed regulations would apply to any use  
of gene therapy or xenotransplantation in clinical studies in humans,  
including use of a licensed gene therapy or xenotransplantation product  
with an experimental drug or device being clinically studied for use in  
a gene therapy or xenotransplantation procedure.     

FDA believes it is not necessary to disclose for purposes of public  
education and discussion all the information which may be included in  
an IND. Except as specifically provided in the proposed rule, FDA  
intends that information regarding human gene therapy or  
xenotransplantation investigations will continue to be held  
confidential, consistent with existing regulations in Secs. 20.61,  
20.62, 20.63, 20.100, 312.130, 601.50, and 601.51. Accordingly,  
proposed Sec. 601.52(b) would specify that, except as specifically  
provided in proposed Sec. 601.52, the availability for public  
disclosure of data and information related to human gene therapy or  
xenotransplantation shall remain in accordance with Sec. 601.50 for  
IND's for a biological product.     

c. Information for public disclosure. Proposed Sec. 601.52(c) would  
specify the types of data and information related to human gene therapy  
or xenotransplantation that the FDA may make available for public  
disclosure. The types of information listed in proposed Sec. 601.52(c)  
are already required for submission under existing regulations (parts  
312 and 601) as part of an IND or BLA or as a supplement to a BLA.     

Under proposed Sec. 601.52(c)(1), FDA would make product and  
patient safety data and related information related to human gene  
therapy and xenotransplantation available for public disclosure. This  
proposed provision is similar to existing requirements in  
Sec. 601.51(e)(1), which require that all safety and effectiveness data  
and information contained in a biological product file be made  
available for public disclosure immediately after a license has been  
issued. The proposed provisions in Sec. 601.52, however, would extend  
this throughout the entire product development process for a product  
related to human gene therapy or xenotransplantation. The proposed rule  
further specifies in Sec. 601.52(c)(1) that for the purposes of this  
proposed regulation, product and patient safety data and related  
information include results of preclinical and clinical studies and  
tests that demonstrate the safety and/or feasibility of the proposed  
procedures. In addition, FDA proposes in Sec. 601.52(c)(1) to identify  
some of the types of product and patient safety data and related  
information that would be disclosed to the public that are particularly  
relevant or specific to human gene therapy and xenotransplantation.  
These types of product and patient safety data and related information  
are: (1) Analysis in animals, humans, or in vitro systems of gene  
transfer, expression, and persistence; (2) vector biodistribution; (3)  
evidence for immune response/anergy; (4) biological activity; (5)  
results of product safety testing including test results for known  
xenogeneic and human infectious agents and replication competent virus;  
(6) qualification of source herd, individual source animal, and source  
organ/tissue/cells for xenotransplantation in humans; and (7)  
information on monitoring or prevention of potential health risks to  
the recipient, close contacts, and health care workers. FDA does not  
intend this to be an exclusive list. In all cases, names and other  
personal identifiers of patients and, expect as specifically provided  
in the regulations, names and other personal identifiers of third  
parties, such as physicians or hospitals, would be removed.  
Furthermore, FDA does not intend product and patient safety data and  
related information under proposed Sec. 601.52(c)(1) to include IND  
safety reports and annual reports, as provided for in Secs. 312.32 and  
312.33. Rather, specific requirements for the public disclosure of  
these types of reports are proposed below in Sec. 601.52(c)(7) and  
(c)(8), respectively.     

Under proposed Sec. 601.52(c)(2) and (c)(3), FDA would make the  
name and address of the sponsor and the clinical indications to be  
studied available for public disclosure. The sponsor name and address  
and the indications to be studied are types of information that are  
consistent with information already required for submission to FDA in 
an IND under Sec. 312.23(a)(1)(i) and (a)(3)(iv)(b), respectively.     

Under proposed Sec. 601.52(c)(4), FDA would make the protocol for  
each planned study available for public disclosure. A study protocol is  
required for submission in an IND under Sec. 312.23(a)(6); proposed  
Sec. 601.52(c)(4) would specify that certain elements of the protocol  
be available for public disclosure. Proposed Sec. 601.52(c)(4)(i)  
through (c)(4)(vi) would describe the following specific elements of  
the protocol to be available for public disclosure: (1) A scientific  
abstract and a non-technical abstract; (2) a statement of the  
objectives, purpose, and rationale of the study (submitted in an IND  
under Sec. 312.23(a)(6)(iii)(a)); (3) the name and address of each  
investigator (submitted in an IND under Sec. 312.23(a)(6)(iii)(b)); (4)  
the name and address of the official contacts of each local review body  
as appropriate (IRB (submitted in an IND under  
Sec. 312.23(a)(6)(iii)(b)), and IBC (NIH Guidelines for Research  
Involving Recombinant DNA Molecules, revised April 1998)) and dated  
copies of each committee's approval of the study; (5) the criteria for  
patient selection and exclusion and an estimate of the number of  
patients to be studied (submitted in an IND under  
Sec. 312.23(a)(6)(iii)(c)); and (6) a description of the treatment that  
will be administered to patients and the clinical procedures,  
laboratory tests, or  

[[Page 4697]]  

other measures to be taken to monitor the safety and effects of the  
drug in human subjects and to minimize risk (similar to that submitted  
in an IND under Sec. 312.23(a)(6)(iii)(g)). FDA intends that the term  
"investigator' in proposed Sec. 601.52(c)(4)(iii) include "sponsor- 
investigators" (individuals who have the responsibility for both the  
development and clinical investigation of the product) as well as  
"investigators," both of which are defined in existing Sec. 312.3(b).  
In proposed Sec. 601.52(c)(4)(iv), FDA intends to make available for  
public disclosure the dated copies of the IRB's and IRC's approval of  
the proposed clinical study to identify when the IRB or IBC assumed  
responsibility for the continued review and approval of the IND.     

Under proposed Sec. 601.52(c)(5), FDA would make sample informed  
consent forms available for public disclosure. FDA proposes to provide  
public access to human gene therapy and xenotransplantation clinical  
trial information relevant to informed consent to promote public  
education, discussion, and consideration of the unique challenges that  
these novel therapies present to assuring adequate informed consent, as  
discussed previously in this proposed rule.     

Under proposed Sec. 601.52(c)(6), FDA would make the identification  
of the biological product(s) and a general description of the method of  
production, including a description of product features that may affect  
patient safety, available for public disclosure. This proposed  
provision contains types of information that are required for  
submission to FDA in an IND under Sec. 312.23. FDA has modified the  
language taken from Sec. 312.23 to reflect information needs related to  
human gene therapy and xenotransplantation and specifies that only a  
"general" description of the production method would be made  
available, excluding trade secret information. FDA does, however,  
propose to further specify in Sec. 601.52(c)(6) that the identification  
and description would include the following types of information, as  
applicable: (1) The vector name and type; (2) gene insert; (3)  
regulatory elements and their source; (4) intended target cells; (5)  
source of cells, tissues, or organ(s); (6) method used to prepare the  
vector containing cells; (7) method used to procure and prepare cells,  
tissues, or organ(s) for xenotransplantation; (8) purity of cells; (9)  
adventitious agent testing; (10) description of the delivery system;  
(11) ancillary products used during production; (12) herd colony and  
individual source animal health maintenance and surveillance records;  
and (13) biological specimens to be archived from source animals. These  
types of information are consistent with information that is already  
submitted to and publicly disclosed by OBA for human gene therapy.     

Under proposed Sec. 601.52(c)(7), FDA would make IND safety  
reports, as provided in Sec. 312.32, and other similar data and  
information available for public disclosure. Under Sec. 312.32,  
sponsors of investigational drugs, including biological drugs, are  
required to submit to FDA certain adverse reaction reports concerning  
their product. Under Sec. 601.51(e)(3), information concerning these  
adverse experience reports, excluding names and other identifiers of  
patients, health care facilities, and physicians, may be publicly  
disclosed after the licensure of the product. Under proposed  
Sec. 601.52(c)(7), such adverse experience reports and other safety  
reports related to an investigational product could be publicly  
disclosed at any time throughout the lifetime of the product. The same  
limitations for disclosure included in Sec. 601.51(e)(3) are included  
in proposed Sec. 601.52(c) to protect the privacy of patients and  
health care workers.     

nder Sec. 601.52(c)(8), FDA would make information submitted in  
the annual report available for public disclosure. Sponsors must submit  
to FDA annual reports of the progress of the investigations as required  
under Sec. 312.33. FDA proposes that the following types of information  
relevant to human gene therapy and xenotransplantation be included, as  
applicable, in the annual report submitted by the sponsor to FDA for  
public disclosure: (1) Evidence of gene transfer, gene expression in  
target cells, and biological activity; (2) assessment of immune  
response; (3) analysis of biodistribution; (4) significant preclinical  
and clinical toxicities; (5) evidence of infection by agents associated  
with the products; (6) adverse experiences; (7) number of subjects who  
died during participation in the investigation, with the cause of death  
for each subject and the status of autopsy requests; and (8) any  
available post mortem evidence of gene transfer, biodistribution,  
specifically including gonadal distribution. In all cases, names and  
other personal identifiers of patients and, except as specifically  
provided in the regulations, names and other personal identifiers of  
third parties, such as physicians or hospitals, would be removed.     

Under proposed Sec. 601.52(c)(9), FDA would make the regulatory  
status of the investigation, the date of a regulatory action, and the  
reason for an action available for public disclosure in order to  
identify to the public the current regulatory status of a clinical  
investigation. For example, FDA would disclose that an investigation is  
on clinical hold, or that an IND is inactive, withdrawn, or terminated.  
Additional information regarding the procedures and criteria for  
placing an investigation on clinical hold, withdrawal of an IND,  
inactive status for an IND, and IND termination may be found in  
Secs. 312.42, 312.38, 312.45, and 312.44, respectively.     

Under Sec. 601.52(c)(10), FDA would make available for public  
disclosure other relevant data and information that the Director, CBER,  
determines are necessary for the appropriate consideration of the  
public health and scientific issues, including relevant ethical issues  
raised by human gene therapy or xenotransplantation. This proposed  
provision is included because the investigational nature of these  
therapies and the continuing evolution of the science surrounding these  
therapies renders FDA unable to anticipate all of the types of  
information related to human gene therapy and xenotransplantation that  
may warrant public education, discussion, and consideration. Examples  
of other relevant data that FDA may disclose could, under certain  
circumstances, include the details of a test used to determine  
eligibility for trial entry or autopsy or biopsy information. However,  
in general, FDA intends to release only the information specifically  
identified in this proposed rule, except in unique conditions or  
circumstances. Proposed Sec. 601.52(c)(10) would provide that other  
relevant data and information may be approved for disclosure only by  
the Director of CBER. 

3. Proposed Sec. 601.53     

Proposed Sec. 601.53 would require sponsors of human gene therapy  
and xenotransplantation clinical trials to submit to FDA for public  
disclosure a redacted version of certain data and information. These  
provisions would specify when and what types of submissions to make to  
FDA in a redacted version for public disclosure, and the requirements  
for identifying and certifying these submissions.     

Furthermore, proposed Sec. 312.42(b)(6) provides that a sponsor's  
failure to submit to FDA the data and information specified in  
Secs. 601.52 and 601.53 that has been properly redacted under  
Sec. 601.53(a) is a basis for FDA placing the investigation on clinical  
hold. FDA recognizes that errors in redacting may occur and will  
provide sponsors with an  

[[Page 4698]]  

opportunity to correct such errors. However, FDA will have the  
enforcement authority to place a human gene therapy and  
xenotransplantation investigation on clinical hold if resolution is not  
reached on any discrepancies found by FDA in the redacted versions, or  
if a redacted version is not submitted at all by the sponsor. It is  
important that FDA has the specific authority to place a human gene  
therapy or xenotransplantation investigation on clinical hold if the  
sponsor has not submitted required data and information to FDA in a  
form that FDA can make publicly available in a timely and efficient  
manner. As previously described in this proposal, due to the unique  
nature of human gene therapy and xenotransplantation, public  
participation in the consideration of proposed and ongoing clinical  
studies of such therapies is crucial. In order for such public  
education, discussion, and consideration to take place and be  
meaningful, FDA must be able to make all relevant and publicly  
disclosable data and information available to the public as soon as  
practicable. The agency has determined that having sponsors submit  
redacted versions that comply with proposed Secs. 601.52 and 601.53 is  
the most efficient means to accomplish this.     

Under proposed Sec. 601.53(a), FDA would require the sponsor of an  
IND to submit to FDA for public disclosure a redacted version of the  
types of submissions identified in Sec. 601.53(b)(1) through (b)(5).  
The sponsor would be required to include all applicable information  
identified as disclosable in Sec. 601.52 and redact all information  
considered confidential as trade secret, names and other personal  
identifiers of patients and, except as specifically provided in the  
regulations, names and personal identifiers of third parties, such as  
physicians, hospitals, etc., and certain confidential commercial  
information, such as information regarding commercial licensing  
agreements or the identification of suppliers. Sponsors would be  
permitted to redact either by removing or obscuring the information  
exempt from disclosure.     

Proposed Sec. 601.53(b)(1) through (b)(5) would list the types of  
submissions that the sponsor would be required to submit to FDA in  
duplicate and as a redacted version for public disclosure. FDA believes  
this information should be available for public disclosure as soon as  
possible and therefore, would require under this paragraph that the  
redacted version be submitted to FDA concurrently with the original  
unabridged submission or at the specific time points noted.     

Proposed Sec. 601.53(b)(1) would require submission for public  
disclosure a redacted version of the information defined under  
Sec. 601.52 to accompany the original unabridged IND submission.     

Proposed Sec. 601.53(b)(2) would require submission for public  
disclosure a redacted version of any amendment documenting changes or  
additions to the information defined under Sec. 601.52 that occur  
either during the IND review process or after the IND goes into effect.  
FDA recognizes that some amendments may require negotiation with FDA  
and subsequent revision by the sponsor. As such, FDA would require that  
the redacted version of any amendment be submitted at the time the  
amendment goes into effect.     

Proposed Sec. 601.53(b)(3) would require submission for public  
disclosure of a redacted version of any IND safety report at the time  
of submission of the original report to FDA. Sponsors are required  
under Sec. 312.32 to notify FDA in a written IND safety report of any  
serious and unexpected adverse experiences associated with the use of  
their drug no later than 15 days after the sponsor's initial receipt of  
the information. FDA believes that the timely availability of adverse  
experience information is essential for public education and informed  
discussion and consideration of the health and safety issues presented 
by the experiences.     

Proposed Sec. 601.53(b)(4) would require submission for public  
disclosure of a redacted version of the annual report, in accordance  
with Sec. 312.33. Consistent with Sec. 312.33, sponsors would be  
required to submit, within 60 days of the anniversary date that the IND  
went into effect, a redacted version of the annual report.     

Under proposed Sec. 601.53(b)(5), a sponsor would be required to  
submit for public disclosure a redacted version of other information  
upon specific request of the Director, CBER. For example, FDA may  
request that the sponsor submit information regarding a test used to  
determine eligibility for trial entry. This proposed provision is  
included because due to the investigational nature of these therapies  
and the continuing evolution of the science surrounding these  
therapies, FDA is not able to anticipate all of the types of  
information related to human gene therapy and xenotransplantation that 
may warrant public education, discussion, and consideration. However,  
in general, FDA does not intend to request information not identified  
in this proposed rule, except for unique conditions or circumstances.     

Proposed Sec. 601.53(c) would require that the sponsor submit the  
information identified in Sec. 601.53(b) in duplicate, in a form  
readily separable from the nonredacted or original unabridged version  
or submission and clearly marked as suitable for public disclosure on  
each page of the submission. This proposed provision would enable FDA  
to identify and provide this information more rapidly to the public and  
would help assure that only appropriate information is disclosed to the  
public.     

Proposed Sec. 601.53(d) would require that any copyrighted material  
be included in a single appendix to the submission and listed in a  
bibliography in the redacted version. The proposal would specify that  
any copyrighted material whose copyright is not owned by the applicant  
shall not be included in any other section of the redacted version. FDA  
is including this provision to facilitate timely release of the  
redacted version on the Internet. In response to an FOIA request,  
copyrighted materials can be included in the response. However, with  
regard to posting on the Internet, copyrighted material must be  
redacted prior to electronic disclosure as this is not considered a  
"fair use" of copyrighted material. Therefore, FDA would not release  
the appendix containing copyrighted materials as part of the redacted  
version on the Internet, but may release the bibliography of materials  
included in the appendix.     

Proposed Sec. 601.53(e) would require that redacted versions be  
accompanied by the statement specified to ensure that the sponsor has  
redacted only the information identified in Sec. 601.53(a) as exempt  
from disclosure (confidential commercial, trade secret, or personal  
information). In addition, under proposed Sec. 601.53, the sponsor must  
include a declaration that the statement is true and correct, under  
penalty of perjury. 

4. Conforming Amendments     

The proposed rule would make conforming amendments to parts 20 and  
312. Part 20 describes the procedures and policy regarding the  
availability and disclosure of information to the public. Section  
20.100 lists the cross-references to other sections of title 21 CFR  
that contain requirements on the availability of specific categories of  
FDA records and how these records are handled upon a request for public  
disclosure. The proposed rule would amend Sec. 20.100(c) by adding a  
paragraph (43) that would contain a cross-reference to the proposed  
Sec. 601.52 regarding the availability for public disclosure of certain  
data and information submitted  

[[Page 4699]]  

to FDA related to human gene therapy or xenotransplantation.     

Part 312 describes the procedures and requirements that govern the  
use of investigational new drugs, including provisions for submission  
to and review by FDA of IND's. The provisions of this rulemaking do not  
alter the procedures specified in part 312 for submission of an IND.  
Section 312.42, among other things, lists the grounds for which FDA may  
impose a clinical hold of an investigation. Proposed Sec. 312.42(b)(7)  
would amend Sec. 312.42 by adding an additional basis for clinical hold  
for human gene therapy and xenotransplantation investigations. Under  
this proposal, FDA could place a human gene therapy or  
xenotransplantation investigation on clinical hold if the sponsor has  
not submitted to the agency a redacted version for public disclosure  
that complies with the requirements of Sec. 601.53.     

Section Sec. 312.130 contains requirements regarding the  
availability for public disclosure of data and information in an IND.  
The proposed rule would amend Sec. 312.130 by revising paragraph (b) to  
include a reference to proposed Sec. 601.52, in addition to the  
existing references to Secs. 601.50 and 601.51, when listing the  
provisions of this chapter that govern the availability for public  
disclosure of all data and information in an IND.  

III. Implementation      

Under the proposed rule, FDA would require that sponsors of human  
gene therapy and xenotransplantation clinical trials submit for public  
disclosure a redacted version of the information defined under  
Sec. 601.52 as contained in the initial IND submission, amendments  
documenting changes or additions to the information defined under  
Sec. 601.52 at the time the amendments go into effect, IND safety  
reports, and annual reports. The redacted version of these documents  
should be submitted to FDA in a form immediately releasable to the  
public, and clearly marked accordingly on each page of the submission  
as suitable for public disclosure. Acceptable approaches range from  
submitting a "marked up" version of the original that obscures the  
information which is not to be disclosed, to developing a separate  
document that abstracts the needed information for public disclosure  
from the original unabridged version submitted to FDA.     

Specifically, FDA is proposing that the redacted version of the  
information specified in the proposed rule be submitted to FDA  
concurrently with the original unabridged IND submission or at the  
specific time points noted in the provisions. Sponsors of human gene  
therapy and xenotransplantation clinical trials would send an original  
and two copies of the original unabridged version of the IND submission  
(as required under existing Sec. 312.23(d)) as well as one copy of the  
redacted version for public disclosure to FDA's CBER, where they would  
be received by the Document Control Center (DCC) to be logged, filed,  
and routed for appropriate documentation, review, and approval. DCC  
would route the submittals to the appropriate FDA reviewer, where, upon  
receipt, the redacted version for public disclosure would be reviewed  
for administrative completeness as well as to ensure that the  
submitting sponsor has appropriately redacted personal information  
regarding patients and third parties prior to release to the public.  
Once this review is complete, the redacted version for public  
disclosure would be sent to the Dockets Management Branch for public  
display where a docket number would be assigned. Each redacted version  
for public disclosure submitted to FDA would be tagged with the same  
docket number for that IND for reference. FDA is also proposing to make  
the redacted versions for public disclosure available to the public  
electronically on the Internet site according to the docket number.     

In addition, to facilitate timely release by FDA of the redacted  
version, FDA is proposing to require that all copyrighted materials  
submitted in accordance with Sec. 601.53 be placed in a single appendix  
and listed in a bibliography in the redacted version. Should an FOIA  
request be received for the data and information specified in  
Sec. 601.52, FDA would be able to include a copy of any copyrighted  
materials in its response. However, FDA would not be able to publicly  
release any copyrighted material on the Internet as electronic posting  
of such information is not a ``fair use" of that copyrighted material  
and must be redacted prior to electronic release. In this case, FDA  
instead would disclose the bibliography of copyrighted materials  
contained in the appendix.     

FDA encourages, but would not require at this time, sponsors to  
submit the redacted version for public disclosure in electronic format.  
Pilot programs are currently underway regarding submission of  
electronic IND's and BLA's. (See 63 FR 29740 and 29741.) As such, FDA  
may, in the near future, implement electronic submission and disclosure  
of this information.     

Sponsors of human gene therapy or xenotransplantation clinical  
trials who submit an initial IND or an amendment to an existing IND on  
or after the effective date of the final rule resulting from this  
rulemaking would be required to submit a redacted version for public  
disclosure in conformance with the rule.     

Sponsors of xenotransplantation clinical trials who have submitted  
an IND to FDA prior to the effective date of the final rule resulting  
from this rulemaking would be required to submit for public disclosure  
a redacted version of the information defined under Sec. 601.52,  
reflecting all amendments to date, by a date specified in the final  
rule.     Sponsors of human gene therapy clinical trials who have submitted  
IND's or amendments prior to the effective date of the final rule, need  
not submit redacted versions. For these IND's or amendments, FDA will  
rely on the existing OBA database as a source of the information that  
FDA will disclose.     

For additional information regarding the proposed effective dates  
for the final rule see the end of this preamble.  

IV. Environmental Impact      

The agency has determined under 21 CFR 25.30(h) that this action is  
of a type that does not individually or cumulatively have a significant  
effect on the human environment. Therefore, neither an environmental  
assessment nor an environmental impact statement is required.  

V. Analysis of Impacts and Initial Regulatory Flexibility Analysis      

FDA has examined the impacts of the proposed rule under Executive  
Order 12866, under the Regulatory Flexibility Act (5 U.S.C. 601-612)  
(as amended by subtitle D of the Small Business Regulatory Fairness Act 
of 1996 (Public Law 104-121)), and under the Unfunded Mandates Reform  
Act (UMRA) (Public Law 104-4). Executive Order 12866 directs agencies  
to assess all costs and benefits of available regulatory alternatives  
and, when regulation is necessary, to select regulatory approaches that  
maximize net benefits (including potential economic, environmental,  
public health and safety, and other advantages; distributive impacts;  
and equity). The Regulatory Flexibility Act requires agencies to  
analyze whether a rule may have a significant impact on a substantial  
number of small entities and, if it does, to analyze regulatory options  
that would minimize the impact. The UMRA requires that agencies prepare  
a written statement under section 202(a) of UMRA of  

[[Page 4700]]  

anticipated costs and benefits before proposing any rule that may  
result in an expenditure by State, local, and tribal governments, in  
the aggregate, or by the private sector, of $100 million (adjusted  
annually for inflation) in any one year.     

The agency believes that this final rule is consistent with the  
principles identified in Executive Order 12866. OMB has determined that  
the final rule is a significant regulatory action as defined by the  
Executive Order and so is subject to review. Because the rule does not  
impose mandates on State, local, or tribal governments, or the private  
sector, that will result in an expenditure in any one year of $100  
million or more, FDA is not required to perform a cost-benefit analysis  
according to the Unfunded Mandates Reform Act. Aggregate impacts of the  
rule, and aggregate expenditures caused by the rule, will not approach  
$100 million for either the public or the private sector. As discussed  
below, because of the limited information that can be used to  
characterize the entities that may qualify as small businesses, the  
impact on small business establishments is uncertain. FDA has therefore  
prepared an Initial Regulatory Flexibility Analysis.  

A. Background      

In the discussion that follows, FDA will describe the purpose and  
requirements of the proposed rule, the estimated number of entities  
that will be affected, the estimated cost of compliance with the rule  
per IND, and a summary of estimated annual costs to industry.     

The purpose of the proposed rule is to make available for public  
disclosure and to require submission in redacted version for public  
disclosure, certain data and information related to human gene therapy  
and xenotransplantation investigations. These areas of clinical  
investigation have the potential for unique public health risks and  
modification of the human genome. The public health and safety risks  
require that FDA be able to make timely disclosures of adverse  
outcomes, such as the development of novel infectious agents,  
unanticipated alterations of a recipient's germline, and severe  
toxicity resulting from the therapy, in order to prevent or contain  
further adverse occurrences.     

These therapeutic research areas will effectively transform  
participating recipients into life-long research subjects. The length  
of commitment, coupled with the magnitude of potential risks to the  
recipients, their families and community, will present new challenges  
for risk assessment and the adequacy of informed consent. As noted  
earlier, these investigative approaches raise new challenges for  
Institutional Review Boards. The novelty and extent of the risk issues  
will call for expanded public access to clinical trial information  
relevant to assessment of risks and benefits, and public education and  
informed consent. These public information needs can only be addressed  
through disclosure of relevant information about the proposed and  
ongoing investigations.     

The information to come under this disclosure regulation includes:  
(1) Product and patient safety data and related information including  
results of preclinical and clinical studies and tests that demonstrate  
the safety and/or feasibility of the proposed procedures; (2) the name  
and address of the sponsor; (3) the clinical indications to be studied;  
(4) the protocol for each planned study to include a scientific  
abstract and a nontechnical abstract, a statement of the objectives,  
purpose, and rationale of the study, the name and address of each  
investigator and subinvestigator, the name and address of the official  
contacts of each local review body as appropriate (IRB, IBC) and the  
dated copies of approval by each group, the criteria for patient  
selection and exclusion, an estimate of the number of patients to be  
studied, and a description of the treatment that will be administered  
to patients, and the clinical procedures, laboratory tests, or other  
measures to be taken to monitor the safety and effects of the drug in  
human subjects and to minimize risk; (5) the informed consent  
documentation; (6) the identification of the biological product(s) and  
a general description of the method of production, including a  
description of product features that may affect patient safety; (7) the  
IND safety reports; (8) the information submitted to FDA in the annual  
report; (9) the regulatory status of the investigation, the date of an  
action, and the reason for an action; (10) and other relevant data and  
information that the Director, CBER, determines are necessary for the  
appropriate consideration of the public health and scientific issues,  
including relevant ethical issues, raised by human gene therapy or  
xenotransplantation. After a license has been issued, all safety and  
effectiveness data and information in the biological product file are  
immediately available for public disclosure unless extraordinary  
circumstances are shown (Sec. 601.51(e)(1)).     

The sponsor of an IND involving human gene therapy or  
xenotransplantation will be required to submit this information in  
redacted version for public disclosure, removing all information that  
would be defined as trade secret, or personal information. The redacted  
submissions would be as follows:     

1. Redacted version of information as defined under Sec. 601.52 at  
the time of the initial IND submission.     

2. Redacted version of any amendment documenting changes or  
additions to the information defined under Sec. 601.52, at the time the  
amendment goes into effect.     

3. Redacted version of IND safety reports at the time of submission  
of the initial report.     

4. Redacted version of the annual progress report within 60 days of  
the anniversary date that the IND went into effect.     

The redacted version would be submitted in a form that is readily  
identifiable and separable from the original unabridged submission to  FDA.     

The proposed rule will affect sponsors of human gene therapy or  
xenotransplantation clinical trials. The agency estimates that, at any  
one time, a total of 147 sponsors will be affected by the proposed  
rule. This includes 134 sponsors that have submitted IND's in the area  
of human gene therapy, and an additional 13 sponsors that have  
submitted IND's for clinical trials involving xenotransplantation. The  
number of new IND's per year in these two research areas has remained  
relatively constant at the level of approximately 45 IND submissions  
per year, for the past several years.  

B. Cost Impact      

Certain types of information have a substantial commercial value.  
This value may be particularly high for data pertaining to specific  
business plans, strategies, or lines of scientific research. The  
required disclosure of such information, however, imposes no economic  
impact where the relevant data are already available to competitors. As  
discussed earlier in this preamble, information that would be disclosed  
under this proposed rule is routinely examined and discussed by the  
RAC, in the case of gene therapy, and discussed at other public  
meetings addressing xenotransplantation issues, or through public  
filings with the SEC. Because the information proposed for disclosure  
has not been treated as confidential by industry, FDA finds that there  
is minimal incremental commercial value associated with the information  
that may be disclosed. The agency has, therefore, not attributed  
regulatory costs to its disclosure. The  

[[Page 4701]]  

agency requests public comment on the validity of this view.     

The proposed rule will require additional paperwork activities for  
affected firms. The primary impact on clinical trial sponsors will be  
the requirement for additional staff time to redact IND-related  
submissions, throughout the period in which the IND is active. Table 1  
of this document provides a summary of the types of submissions that  
will be required for public disclosure and the estimated number of such  
submissions that FDA expects to receive each year across all active  
IND's in the areas of human gene therapy and xenotransplantation. The  
estimated time required per redacted submission is also shown in table  
1. The numbers of submissions and redaction times are estimated by FDA  
staff involved in application review, based on their experience in  
recent years, and their familiarity with the content of the IND  
packages. The redaction is assumed to be performed by a relatively  
senior member of the scientific research staff at a sponsoring  
organization. The cost per hour of staff time is estimated to be  
approximately $38, based on the Bureau of Labor Statistics estimate of  
total hourly compensation for professional white-collar workers in the  
private goods-producing and service producing industries.\3\ The  
redacted documents listed in table 1 reflect a series of submissions  
that would typically occur over several years. Based on FDA's estimate  
of the total volume of submissions of each type per year, the agency  
estimates that the total cost to the industry will be approximately  
$123,880 [$41,040+$5,130+$1,710+$76,000]. This yields an average annual  
cost of $843 per sponsor [$123,880/147]. 

---------------------------------------------------------------------------      

\3\ U.S. Dept of Labor, Bureau of Labor Statistics, Employer  
Costs for Employee Compensation, March 1997.  

Table 1.--Estimates Of Cost Per Year For Industry-Wide Redaction Efforts

------------------------------------------------------------------------

                     Total Industry                         Estimated  
Type of Redacted     Submissions   Average Redaction  Industry Cost per
   Submission         per Year      Time/Submission          Year 

------------------------------------------------------------------------ 

New IND\1\--             45         24 hours           $41,040 [45 x 24
  initial and                                            x $38]
  authorized
  version 
IND amendments          270         0.5 hour           $5,130 [270 x 0.5                                                         x $38] 
IND safety reports       90         0.5 hour           $1,170 [90 x 0.5                                                         x $38] 
Annual reports          100         20 hours           $76,000 [100 x 20                                                         x $38] 

------------------------------------------------------------------------ 

Total Annual Cost                                      $123,880
  to Industry 

------------------------------------------------------------------------ 

Average Annual                                              $843
 Cost Per Sponsor
 (147 sponsors) 

------------------------------------------------------------------------ 

\1\ Investigational new drug application.  

C. Benefits      

Although human gene therapy offers the promise of more effective  
treatment, for diseases ranging from cystic fibrosis to human  
immunodeficiency virus (HIV), rapid progress and patient safety in  
research requires timely communication of new findings about the  
success or risks of candidate strategies. The key to success for any  
human gene therapy strategy is attaining a vector that can serve as a  
safe and efficient gene delivery vehicle (Ref. 5). In general, human  
gene therapy researchers work to maximize efficacy through the  
regulation of gene expression over long periods (Ref. 6). Simultaneous  
with this goal, researchers attempt to develop vectors and treatment  
strategies that will both minimize the patient's immune response (which  
counters the therapy) (Ref. 7) and minimize the toxicity of the gene  
therapy (Refs. 8 and 9). As different vectors are considered, it is  
critical that newly discovered risks be reported to alert other  
researchers considering similar vectors or developing therapies to  
treat similar conditions.     

As described earlier, the importance of timely communication of  
risks is clearly demonstrated by the cystic fibrosis patient who  
developed an acute adverse event requiring intensive care after  
receiving an adenoviral vector. In this case, public discussion of the  
adverse event at the RAC meeting facilitated rapid dissemination of  
important information about this toxicity, thereby contributing to the  
safety of patients in other gene therapy trials.     

For xenotransplantation, the disclosure of information is necessary  
for public education and more efficient product and recipient tracking.  
Communication of risks offers other benefits for recipients of  
xenotransplantation products, their families, and their communities.  
According to a recent World Health Organization report on  
xenotransplantation, "The practice of xenotransplantation carries with  
it an unquantifiable risk of xenozoonotic infection and disease.  
Measures are required to minimize risk and maximize safety in the  
potential use of this technology" (Ref. 10). The level of risk is  
particularly difficult to quantify since potential viruses may be  
unknown and "silent" in the donor species; that is, they may not be  
identified through the currently available battery of screening tests  
for known pathogens. In addition, the risk of infection in the  
recipient of a xenotransplantation product may be substantially  
increased as a result of the immunosuppressive drug therapy  
administered to prevent rejection of the transplanted  
xenotransplantation product.     

New evidence supporting the possibility of this risk is reported in  
a recent study (Ref. 11) showing that pig pancreatic islets  
transplanted into severely immunodeficient mice produce porcine  
endogenous retroviruses (PERV) that can infect human cells that had  
been transplanted into the same mice receiving the porcine pancreatic  
cells. Although pigs are considered a promising alternative source of  
organs for xenotransplantation, this study found that the PERV were  
trancriptionally active and infectious cross-species in vivo after  
xenotransplantation of the pig tissues. These findings bolster earlier  
concerns about PERV infection from pig islet  

[[Page 4702]]  

xenotransplantation in immunosuppressed human patients.     

Recent experience with zoonotic viruses has demonstrated the  
potential lethality of these viruses. An example is the 1998 to 1999  
outbreak of a hendra-like virus in Malaysia and Singapore (Ref. 12).  
Documented cases occurred primarily among adults who had come in close  
contact with swine, which also showed signs of the illness. In some  
instances, illness in the pigs had occurred 1 to 2 weeks before illness  
in the humans. Illness in humans was characterized by 3 to 14 days of  
fever and headache followed by drowsiness and disorientation that often  
progressed to coma within 24 to 48 hours. During the period September  
1998 to April 1999, 229 human cases were reported, 111 of which (48  
percent) resulted in death. Although the first cases of human illness  
were reported in September 1998, the type and source of infection was  
initially unknown, so human exposures continued to occur, with the peak  
number of new cases occurring 6 months later, in March 1999. Once the  
type of virus was identified, through laboratory testing, and the  
source of infection (i.e., exposure to pigs) was serologically  
confirmed, public health measures were taken to prevent further  
outbreaks.     

Ebola hemorrhagic fever is another disease that is transferable  
from animals to humans (Ref. 13) and consequently illustrates the  
importance of timely tracking of and public communication about  
zoonotic viruses. In the period from January to July 1995, a total of  
316 persons became ill with hemorrhagic fever in Kikwit, Democratic  
Republic of the Congo (DRC) (Ref. 14). During the epidemic, a mortality  
rate of 60 to 80 percent was reported among hospital cases. After an  
incubation period of approximately 7 days, the early clinical features  
of the disease included fever, headache, sore throat, diarrhea and  
myalgias, followed by vomiting, worsening diarrhea, oliguria, shock and  
death after 7 to 14 days. In May of 1995, the month of peak onset of  
new cases, the DRC requested international assistance in investigating  
the cause of the outbreak. Laboratory testing by the Centers for  
Disease Control and Prevention (CDC) confirmed the presence of the  
Zaire subtype of Ebola hemorrhagic fever. Continued investigation and  
testing enabled the international team to identify modes of  
transmission and to specify the precautions necessary to prevent  
further spread of the virus. According to the CDC, prompt laboratory  
diagnosis is an essential component of the surveillance needed to  
maximize Ebola prevention and control measures (Ref. 15). In this  
instance, the lack of early detection and proper management of Ebola  
hemorrhagic fever patients resulted in numerous deaths among both  
health care personnel and patients (Rollin and Ksiazek, 1998). By  
hastening the disclosure of important risk information, the proposed  
rule would assist public health agencies and health care providers in  
more rapidly identifying and controlling any zoonotic viruses that  
might emerge following xenotransplantation.     

As of April 1999, the United Network for Organ Sharing (UNOS)  
reported a total of 62,443 patients on the waiting list for an organ  
transplant. This number far exceeds the total of approximately 20,000  
transplants performed each year (Ref. 16). In addition to bolstering  
the supply of viable organ transplants, patients may also benefit from  
cellular and tissue therapies involving a xenotransplantation product.  
Although the potential to fill unmet needs is great, the number of  
prospective xenotransplant recipients represents a sizeable population  
at potential risk of zoonotic infection. The proposed data disclosures  
would help to provide the information needed by the public to  
understand, manage, and minimize the risks associated with these  
advancing medical technologies.  

D. Impact on Small Entities      

The agency has only limited information to estimate the number of  
small entities conducting clinical investigations of human gene therapy  
or xenotransplantation. As indicated in the cost analysis, the overall  
number of business entities sponsoring clinical trials is estimated to  
be 147. Although a few companies are a part of larger firms, many  
others may have annual revenues of less than $5 million, which is the  
revenue level that identifies a small business, according to the Small  
Business Administration. The estimated cost impact of $843 per sponsor  
per year reflects the staff time that would need to be allocated to  
produce redacted versions of the specified documents for the purpose of  
public disclosure.     

The proposed rule offers sponsors considerable flexibility in  
implementation by allowing for a range of approaches for preparing a  
redacted version. Under the proposed rule, acceptable approaches range  
from submitting a ``marked up" version of the original that simply  
obscures the information not to be disclosed, to development of a  
separate document that abstracts the needed information for the public  
from the original unabridged version submitted to FDA. This flexibility  
will help to minimize the cost impact.     

The agency does not anticipate that the estimated cost will  
significantly burden any of the sponsors. However, because of the  
limited information available for establishments sponsoring clinical  
trials in human gene therapy and xenotransplantation, and its  
importance in developing estimates of the small entity impact, the  
agency requests detailed comment on the number and type of businesses  
sponsoring clinical trials in human gene therapy or  
xenotransplantation, and the expected impact of the proposed  
requirements on these entities.     

In developing the proposed rule, the agency considered but rejected  
two alternatives that might impose less burden on small businesses. The  
agency found, however, that these alternatives would be less effective  
in supporting the advancement of this research, because of unanswered  
concerns regarding patient safety and public health. One of the  
alternatives considered involved voluntary disclosure by clinical trial  
sponsors without a regulatory requirement. This alternative would  
reduce costs to industry only if establishments failed to voluntarily  
provide the needed information for disclosure. Moreover, while  
voluntary provision of this information would be no less burdensome for  
industry, it could prove inadequate in protecting public health,  
because the agency would have no means of assuring the quality and  
consistency of the content of the voluntarily disclosed information, or  
the timeliness of its reporting. The disclosure of timely, accurate,  
and complete information is critical to an appropriate agency response  
to adverse outcomes, including the emergence of novel and potentially  
life-threatening infectious agents, or the alteration of the germline  
in patients participating in the clinical study. Also, voluntary  
disclosure provides no means for the agency to ensure a balanced  
dissemination of information on identified risks and benefits. Such  
balance is central to an adequate public understanding of the  
technologies, and to an informed public discussion of the overall risk 
versus benefit to patients and communities.     

A second alternative to the proposed rule would require disclosure,  
but would have FDA assume the sole responsibility for redaction of  
documents submitted by the sponsor. Although this alternative would  
reduce the direct cost impact for sponsors, the limited number of  
agency staff available to perform this task would introduce the risk of  
delay in producing the redacted  

[[Page 4703]]  

version for public disclosure. This outcome could potentially result in  
delaying the research, or delaying the timely public availability of  
critical information.  

VI. References      

The following references have been placed on display in the Dockets  
Management Branch and may be seen by interested persons between 9 a.m.  
and 4 p.m., Monday through Friday.     

1. Eastland, T., "Infectious disease transmission through cell,  
tissue and organ transplantation: reducing the risk through donor  
selection," Cell Transplantation vol 4. pp. 455-477, 1995.     

2. Delmonico, F. L. and D. R. Snydman, "Organ donor screening  
for infectious diseases" Transplantation, vol. 65, pp. 603-610,  
1998.     

3. Regamey, N., M. Tamm, M. Wernil, A. Witschi, G. Thiel, G.  
Cathomas, and P. Erb, "Tranmission of human herpesvirus 8 infection  
from renal-transplant donors to recipients." New England Journal of  
Medicine, vol. 339, pp.1358-1363, 1998.     

4. "Guidelines for Research Involving Recombinant DNA  
Molecules," Appendix M-Points to Consider in the Design 
Submission of Protocols for the Transfer of Recombinant DNA  
Molecules into One or More Human Subjects (PTC), http:// www4.od.nih.gov/oba/guidelines.html.     

5. Friedmann, T., "Overcoming the Obstacles to Gene Therapy,"  
Scientific American, vol. 276, No. 6, pp. 96-101, June 1997.     

6. Haberman, R. P., T. J. McCown, and R. J. Samulski,  
"Inducible Long-Term Gene Expression in Brain With Adeno-Associated  
Virus Gene Transfer," Gene Therapy, vol. 5, No. 12, pp. 1604-1611,  
December 1998.     

7. Middleton, P. G. and E. W. F. W. Alton, "Gene Therapy for  
Cystic Fybrosis: Which Postman, Which Box?" Thorax, vol. 53, No. 3,  
pp. 197-199, March 1998.     

8. Krisky, D. M., D. Wolfe, W. F. Goins, P. C. Marconi, R.  
Ramakrishnan, M. Mata, R. J. D. Rouse, D. J. Fink, and J. C.  
Glorioso, "Deletion of Multiple Immediate-Early Genes From Herpes  
Simplex Virus Reduces Cytotoxicity and Permits Long-Term Gene  
Expression in Neurons," Gene Therapy, vol. 5, No. 12, pp. 1593- 
1603, December 1998.     

9. Yang, E.Y., D. L. Cass, K. G. Sylvester, J. M. Wilson, and N.  
S. Adzick, ``Fetal Gene Therapy: Efficacy, Toxicity, and Immunologic  
Effects of Early Gestation Recombinant Adenovirus," Journal of  
Pediatric Surgery, vol. 34, No. 2, pp. 235-241, February 1999.     

10. Report of WHO Consultation on Xenotransplantation, World  
Health Organization, Emerging and other Communicable Diseases  
Surveillance and Control, Geneva, Switzerland, pp. 28-30, October  
1997.     

11. Van der Laan, L. J., C. Lockey, B. C. Griffeth, F. S.  
Frasier, C. A. Wilson, D. E. Onions, B. J. Hering, Z. Long, E. Otto,  
B. E. Torbett, D. R. Salomon, "Infection by Porcine Endogenous  
Retrovirus After Islet Xenotransplantation in SCID Mice," Nature,  
vol. 407 (6800), pp. 90-94, September 7, 2000.     

12. U.S. Department of Health and Human Services, Centers for  
Disease Control, "Outbreak of Hendra-Like Virus--Malaysia and  
Singapore, 1998-1999," Morbidity and Mortality Weekly Report, vol.  
48, No. 13, April 9, 1999.     

13. Rollin, P. E. and T. G. Ksiazek, "Ebola Haemorrhagic  
Fever," Transactions of the Royal Society of Tropical Medicine and  
Hygiene, vol. 92, pp. 1-2, 1998.     

14. Roels, T. H., A. S. Bloom, J. Buffington, G. L. Muhumgu, W.  
R. MacKenzie, A. S. Khan, R. Ndambi, D. L. Noah, H. R. Rolka, C. J.  
Peters, and T. G. Ksiazek, ``Ebola Hemorrhagic Fever, Kikwit,  
Democratic Republic of the Congo, 1995: Risk Factors for Patients  
with a Reported Exposure," The Journal of Infectious Diseases, vol.  
179 Supplement 1:S92-97, 1999.     

15. Centers for Disease Control, "Update: Outbreak of Ebola  
Viral Hemorrhagic Fever--Zaire 1995," Journal of the American  
Medical Association, vol. 274, No. 5, August 1995.     

16. U.S. Facts About Transplantation, UNOS, (c) 1998, http:// www.unos.org/newsroom/critdata__main.htm.  

VII. The Paperwork Reduction Act of 1995      

This proposed rule contains information collection provisions that  
are subject to review by OMB under the Paperwork Reduction Act of 1995  
(44 U.S.C. 3501-3520). The title, description, and respondent  
description of the information collection provisions are shown below  
with an estimate of the annual reporting burden. Included in the  
estimate is the time for reviewing instructions, searching existing  
data sources, gathering and maintaining the data needed, and completing  
and reviewing each collection of information.     

FDA invites comments on: (1) Whether the proposed collection of  
information is necessary for the proper performance of FDA's functions,  
including whether the information will have a practical utility; (2)  
the accuracy of FDA's estimate of the burden of the proposed collection  
of information, including the validity of the methodology and  
assumptions used; (3) ways to enhance the quality, utility, and clarity  
of the information to be collected; and (4) ways to minimize the burden  
of the collection of information on respondents, including through the  
use of automated collection techniques, when appropriate, and other  
forms of information technology.     

Title: Submission to FDA for Public Disclosure of Certain Data and  
Information Related to Human Gene Therapy or Xenotransplantation.     

Description: FDA is proposing new regulations to require that  
sponsors of IND's involving human gene therapy or xenotransplantation  
submit information related to the IND in redacted version for public  
disclosure, removing all information that would be defined as trade  
secret or personal information whose disclosure would constitute a  
clearly unwarranted invasion of privacy, and certain confidential  
commercial information. Each submission for public disclosure would be  
accompanied by a statement, signed by a responsible person, that the  
information has been suitably redacted. FDA would then publicly  
disclose the redacted version to provide an opportunity for public  
education, discussion, and consideration of public health and safety  
issues, as well as consideration of societal and ethical issues.     

FDA is also proposing to require that the sponsor submit any  
copyrighted material in a single appendix to each redacted version and  
any copyrighted material whose copyright is not owned by the sponsor  
not be included in any other section of the redacted version. The  
proposal would further require that the redacted version include a  
bibliography of the copyrighted material contained in the appendix.  
This provision would facilitate the timely public disclosure of the  
redacted version on the Internet, with the copyrighted information  
excluded. Making available copyrighted material on the Internet is not  
considered "fair use" of copyrighted material.     

Description of Respondents: Sponsors of clinical investigations  
involving human gene therapy or xenotransplantation.     

FDA has estimated the burden for each provision that describes a  
collection of information. The estimates are based on FDA's experience  
in reviewing IND submissions and in redacting documents related to an  
IND.     

Under proposed Sec. 601.53(b), approximately 147 sponsors of  
clinical investigations involving human gene therapy (134 sponsors) and  
xenotransplantation (13 sponsors) would be required to submit a  
redacted version of certain documents under the IND. For all 147  
sponsors, these documents include the original IND (45 submissions/ 
year), amendments to an IND (270 submissions/year), IND safety reports  
(90 submissions/year), and annual reports (100 submissions/year) for an  
estimated total of 505 submissions/year (45 + 270 + 90 + 100). FDA has  
estimated the time necessary to copy and redact each of the above types  
of submissions; i.e., IND submission, 24 hours/submission; amendments,  
.5 hour/per submission; IND safety reports, .5 hour/submission; and  
annual reports, 20 hours/submission. The total burden equals the sum of  
the burdens estimated for each type of submission (45x24 +  [[Page 4704]] 
270x.5 + 90x.5 + 100x20 equals 3,260 hours).     

Under Sec. 601.53(c) all submissions under Sec. 601.53(b) must be  
readily separable from the original submission and clearly marked on  
each page as suitable for disclosure. Under Sec. 601.53(d) of the  
proposed rule, sponsors of human gene theraphy and xenotransplantation  
clinical studies would be required to submit copyrighted material in a  
single appendix to each redacted submission and include in the redacted  
version a bibliography of these materials. The hours per response,  
therefore, are an average estimate of the total time for redaction of  
the document, separation of copyrighted material and preparation of a  
bibliography, marking of each page as suitable for public disclosure,  
and submission to FDA, as provided in Sec. 601.53(b), (c), and (d). The  
information collection burdens associated with the submission of an IND  
as provided in part 312 are approved by OMB under OMB control number  
0910-0014.                                   

Table 2.--Estimated Annual Reporting Burden \1\ 

----------------------------------------------------------------------------------------------------------------

                                                       Annual

          21 CFR Section               No. of       Frequency per   Total Annual      Hours per      Total Hours
                                     Respondents      Response        Responses       Response ----------------------------------------------------------------------------------------------------------------

601.53(b), (c), and (d)                 147              3.4            505              6.5        3,282 ----------------------------------------------------------------------------------------------------------------

 \1\ There are no capital costs and maintenance costs associated with this collection of information.      

In compliance with section 3507(d) of the Paperwork Reduction Act  
of 1995 (44 U.S.C. 3507(d)), FDA has submitted the information  
collection provisions of this proposed rule to OMB for review.  
Interested persons may submit comments on the information collection  
requirements of this proposal by February 20, 2001, to the Office of  
Information and Regulatory Affairs, OMB, New Executive Office Bldg.,  
725 17th St. NW., Washington, DC 20503, Attn: Desk Officer for FDA.  

VIII. Proposed Effective Dates      

FDA proposes that any final rule that may issue based on this  
proposal become effective 90 days after the date of its publication in  
the Federal Register. On or after that date, sponsors of human gene  
therapy or xenotransplantation clinical trials would be required to  
submit a redacted version of the data and information specified in the  
final rule as part of a submission into an IND. Sponsors may  
voluntarily submit a redacted version immediately upon the date of  
issuance of the final rule. FDA is proposing, for sponsors of  
xenotransplantation clinical trials who have submitted an IND prior to  
the effective date of the final rule, that the sponsor submit for  
public disclosure a redacted version of the information held under the  
IND, to contain the information specified in proposed Sec. 601.52. FDA  
invites comment on the length of time after issuance of the final rule  
that these sponsors should be provided to submit the redacted  
information.  

IX. Request for Comments      
Interested persons may submit to the Dockets Management Branch  
(address above) written comments regarding this proposal by April 18,  
2001. Two copies of any comments are to be submitted, except that  
individuals may submit one copy. Comments are to be identified with the  
docket number found in brackets in the heading of this document. Submit  
written comments on the information collection provisions by February  
20, 2001. Received comments may be seen in the Dockets Management  
Branch between 9 a.m. and 4 p.m., Monday through Friday.  

List of Subjects  

21 CFR Part 20      

Confidential business information, Courts, Freedom of information,  
Government employees.  

21 CFR Part 312      

Drugs, Exports, Imports, Investigations, Labeling, Medical  
research, Reporting and recordkeeping requirements, Safety.  

21 CFR Part 601      

Administrative practice and procedure, Biologics, Confidential  
business information.      

Therefore, under the Federal Food, Drug, and Cosmetic Act and under  
authority delegated to the Commissioner of Food and Drugs, it is  
proposed that 21 CFR parts 20, 312, and 601 be amended as follows:  
PART 20--PUBLIC INFORMATION      

1. The authority citation for part 20 continues to read as follows:      

Authority: 5 U.S.C. 552; 18 U.S.C. 1905; 19 U.S.C. 2531-2582; 21  
U.S.C. 321-393, 1401-1403; 42 U.S.C. 241, 242, 242a, 242l, 242n,  
243, 262, 263, 263b-263n, 264, 265, 300u-300u-5, 300aa-1.      

2. Section 20.100 is amended by adding paragraph (c)(43) to read as  
follows:   

Sec. 20.100  Applicability; cross-reference to other regulations.  

* * * * *     

(c) * * *     

(43) Data and information submitted related to human gene therapy  
or xenotransplantation, in Sec. 601.52 of this chapter.  

PART 312--INVESTIGATIONAL NEW DRUG APPLICATION      

3. The authority citation for part 312 continues to read as  follows:      

Authority: 21 U.S.C. 321, 331, 351, 352, 353, 355, 371; 42  
U.S.C. 262.      

4. Section 312.42 is amended by adding paragraph (b)(7) to read as  
follows:   

Sec. 312.42  

Clinical holds and requests for modification.  

* * * * *     

(b) * * *     

(7) Clinical hold of any investigation, as defined in Sec. 601.52  
of this chapter, involving human gene therapy or xenotransplantation.  
FDA may place a proposed or ongoing investigation, as defined in  
Sec. 601.52 of this chapter, involving human gene therapy or  
xenotransplantation on clinical hold if it is determined that:     

(i) Any of the conditions in paragraph (b)(1) or (b)(2) of this  
section apply; or     

(ii) The sponsor has not submitted a redacted version of the data  
and information, as specified in Sec. 601.52 of this chapter, for  
public disclosure that complies with the requirements of Sec. 601.53 of  
this chapter. 

* * * * *     

5. Section 312.130 is amended by revising paragraph (b) to read as  
follows:   

Sec. 312.130  

Availability for public disclosure of data and  information in an IND.  

* * * * *     

(b) The availability for public disclosure of all data and  
information in an investigational new drug application for a new drug  
or antibiotic drug will be handled in accordance with the provisions  
established in Sec. 314.430 of  

[[Page 4705]]  

this chapter for the confidentiality of data and information in  
applications submitted in part 314 of this chapter. The availability  
for public disclosure of all data and information in an investigational  
new drug application for a biological product will be governed by the  
provisions of Secs. 601.50, 601.51, and 601.52 of this chapter. 

* * * * *  

PART 601--LICENSING      

6. The authority citation for part 601 continues to read as  
follows:      

Authority: 15 U.S.C. 1451-1561; 21 U.S.C. 321, 351, 352, 353,  
355, 360, 360c-360f, 360h-360j, 371, 374, 379e, 381; 42 U.S.C. 216,  
241, 262, 263; sec. 122, Pub. L. 105-115, 111 Stat. 2322 (21 U.S.C.  
355 note).      

7. Section 601.50 is amended by revising the section heading and  
paragraph (a) to read as follows:   

Sec. 601.50  Confidentiality of data and information in an  
investigational new drug application for a biological product.      

(a) Except as provided in Sec. 601.52, the existence of an IND  
application for a biological product will not be disclosed by the Food  
and Drug Administration unless it has previously been publicly  
disclosed or acknowledged. 

* * * * *     

8. Section 601.51 is amended by revising the section heading and  
paragraph (a) to read as follows:   

Sec. 601.51  Confidentiality of data and information in a biologics  
license application.      

(a) For purposes of this section the biological product file  
includes all data and information submitted with or incorporated by  
reference in any biologics license application, IND's incorporated in  
any such application, master files, and other related submissions.  
Except as provided in Sec. 601.52, the availability for public  
disclosure of any record in the biological product file shall be  
handled in accordance with the provisions of this section. 

* * * * *     

9. Section 601.52 is added to subpart F to read as follows:   
Sec. 601.52  Availability for public disclosure of certain data and  
information related to an IND concerning human gene therapy or  
xenotransplantation.      

(a) Definitions. The following definitions of terms apply to this  
section:     

(1) Human gene therapy means the administration of genetic material  
in order to modify or manipulate the expression of a gene product or to  
alter the biological properties of living cells for therapeutic use.  
Cells may be modified ex vivo for subsequent administration or altered  
in vivo by gene therapy products given directly to the subject.     

(2) Xenotransplantation means any procedure that involves the  
transplantation, implantation, or infusion into a human recipient of  
either: Live cells, tissues, or organs from a nonhuman animal source;  
or human body fluids, cells, tissues, or organs that have had ex vivo  
contact with live nonhuman animal cells, tissues, or organs.     

(b) Scope. Except as otherwise provided in this section, the  
availability for public disclosure of data and information related to  
human gene therapy or xenotransplantation shall be in accordance with  
Secs. 601.50 and 601.51.     

(c) Information for public disclosure. FDA will make available for  
public disclosure the following types of data and information related  
to an IND concerning human gene therapy or xenotransplantation. Names  
and other personal identifiers of patients and, except as specifically  
provided in this section, names and personal identifiers of and third  
party, such as physicians or hospitals, will not be made available for  
public disclosure.     

(1) Product and patient safety data and related information. For  
purposes of this section product and patient safety data and related  
information include results of preclinical and clinical studies and  
tests that demonstrate the safety and/or feasibility of the proposed  
procedures. This may include, but is not necessarily limited to,  
analysis in animals, humans, or in vitro systems of gene transfer,  
expression, and persistence; vector biodistribution; evidence for  
immune response/anergy; biological activity; and results of product  
safety testing including testing for known xenogeneic and human  
infectious agents and replication competent virus; and qualification of  
source herd, individual source animal, and source organ/tissue/cells  
for xenotransplantation in humans. Also included is information on  
monitoring or prevention of potential health risks to the recipient,  
close contacts, and health care workers, such as patient monitoring for  
replication competent retrovirus and viral shedding and measures taken  
to prevent transmission of infectious disease. The availability for  
public disclosure of data and information in an IND safety report or  
annual report, as provided under Secs. 312.32 and 312.33 of this  
chapter, will be governed by the provisions of paragraphs (c)(7) and  
(c)(8) of this section.     

(2) The name and address of the sponsor.     

(3) The clinical indications to be studied.     

(4) A protocol for each planned study, to include:     

(i) A scientific abstract and a nontechnical abstract.     

(ii) A statement of the objectives, purpose, and rationale of the  
study.     (iii) The name and address of each investigator.     

(iv) The name and address of the official contacts of each local  
review body as appropriate (Institutional Review Board, Institutional  
Biosafety Committee) and the dated copies of each committee's approval  
of the study.     

(v) The criteria for patient selection and exclusion and an  
estimate of the number of patients to be studied.     

(vi) A description of the treatment that will be administered to  
patients and the clinical procedures, laboratory tests, or other  
measures to be taken to monitor the safety and effects of the drug in  
human subjects and to minimize risk.     

(5) Written informed consent form(s) as provided in Sec. 50.27 of  
this chapter.     

(6) Identification of the biological product(s) and a general  
description of the method of production, including a description of  
product features that may affect patient safety. The information shall  
include, as applicable, the vector name and type; gene insert;  
regulatory elements and their source; intended target cells; source of  
cells, tissues, or organ(s); method used to prepare the vector  
containing cells; method used to procure and prepare cells, tissues, or  
organs for xenotransplantation; purity of cells; adventitious agent  
testing; description of the delivery system; ancillary products used  
during production; herd colony and individual source animal health  
maintenance and surveillance records; and biological specimens to be  
archived from source animals.     

(7) IND safety reports, as provided in Sec. 312.32 of this chapter,  
and other similar data and information.     

(8) Information submitted in the annual report to include, as  
applicable, assessment of evidence of gene transfer, gene expression in  
target cells, biological activity, immune response, status of autopsy  
request and evidence of gene transfer and gonadal distribution upon  
autopsy, results from assessment for evidence of infection by agents  
associated with the product, adverse experiences, and a list of  
subjects who died during participation in the investigation, with the  
cause of death for each subject.     

(9) The regulatory status of the IND, such as on hold, in effect,  
inactive, or  

[[Page 4706]]  

withdrawn, the dates of these actions, and the reasons for these  
actions.     

(10) Other relevant data and information that the Director, CBER,  
determines are necessary for the appropriate consideration of the  
public health and scientific issues, including relevant ethical issues,  
raised by human gene therapy or xenotransplantation.     

10. Section 601.53 is added to subpart F to read as follows:   
Sec. 601.53  Submission of certain data and information related to  
human gene therapy or xenotransplantation for public disclosure.      

(a) A sponsor of an IND shall submit to FDA for public disclosure  
in a redacted version the submissions identified in paragraphs (b)(1)  
through (b)(5) of this section. Each submission shall include all  
applicable information identified as disclosable in Sec. 601.52, but  
shall be redacted to remove or obscure all information considered  
confidential as a trade secret, certain confidential commercial  
information, such as information regarding commercial licensing  
agreements or the identification of suppliers, and names and other  
personal identifiers of patients and, except as specifically provided  
in this section, names and personal identifiers of any third party,  
such as physicians or hospitals, must be redacted.     

(b) The following shall be submitted in a suitably redacted version  
and in duplicate at the time points noted:     

(1) Information as defined under Sec. 601.52 at the time of initial  
IND submission.     

(2) Any amendment documenting changes or additions to the  
information as defined under Sec. 601.52 at the time the amendment goes  
into effect.     

(3) IND safety reports at the time of submission of the initial  
report to FDA.     

(4) The annual report, within 60 days of the anniversary date that  
the IND went into effect, in accordance with Sec. 312.33 of this  
chapter.     

(5) Other information upon the specific request of the Director,  
CBER.     

(c) The submissions identified in paragraph (b) of this section  
shall be submitted in a form readily separable from the original  
unabridged submission to FDA and clearly marked on each page of the  
redacted version as suitable for public disclosure.     

(d) Any copies of copyrighted material shall be submitted in a  
single appendix to each redacted version. Copyrighted materials whose  
copyright is not owned by the applicant shall not be included in any  
other section of the redacted versions. A bibliography of copyrighted  
materials contained in the appendix shall be included as part of each  
redacted version.     

(e) Any data or information submitted to FDA as a redacted version  
for public disclosure in accordance with paragraph (a) of this section  
shall be accompanied by the following statement signed by a responsible  
individual:     

The information contained herein has been redacted for public  
disclosure. The only material removed from these records is:  
Confidential commercial or trade secret information exempt from  
disclosure under the Freedom of Information Act (5 U.S.C. 552 (b)(4))  
and the Food and Drug Administration's implementing regulations (21 CFR  
20.61); names and other personal identifiers of patients and, except as  
specifically provided in the regulations, names and other personal  
identifiers of any third party.      

I declare, under the penalty of perjury, that the foregoing is  
true and correct.     

Dated: December 20, 2000. 

Jane E. Henney, 
Commissioner of Food and Drugs. 

Donna E. Shalala, 
Secretary of Health and Human Services. 

[FR Doc. 01-1048 Filed 1-17-01; 8:45 am] 
BILLING CODE 4160-01-F