[Federal Register Volume 72, Number 207 (Friday, October 26, 2007)]
[Notices]
[Pages 60848-60851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21126]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Protection of Human Subjects: Categories of Research That May Be
Reviewed by the Institutional Review Board Through an Expedited Review
Procedure
AGENCY: Department of Health and Human Services, Office of the
Secretary.
ACTION: Notice.
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SUMMARY: The Office for Human Research Protections (OHRP) is requesting
written comments on a proposed amendment to item 5 of the categories of
research that may be reviewed by the institutional review board (IRB)
through an expedited review procedure, last published in the Federal
Register on November 9, 1998 (63 FR 60364). On that date, the Office
for Protection from Research Risks (OPRR), now OHRP, and the Food and
Drug Administration (FDA) simultaneously published identical lists of
categories of research activities involving human subjects which may be
reviewed by the IRB through an expedited review procedure. It has come
to OHRP's attention that there has been confusion in the research
community about expedited review category 5. OHRP is proposing to amend
expedited review category 5 to clarify that the category includes
research involving materials that were previously collected for either
nonresearch or research purposes, provided that any materials collected
for research were not collected for the currently proposed research.
Expedited review category 5 also includes research involving materials
that will be collected solely for nonresearch purposes.
In addition, OHRP is requesting comments on the entire expedited
review list that was last published in the Federal Register on November
9, 1998 (63 FR 60364) to determine if other changes are needed.
As part of its charge to provide expert advice and recommendations
to the Secretary of Health and Human Services (the Secretary) and the
Assistant Secretary for Health on issues and topics pertaining to or
associated with the protection of human research subjects, the
Secretary's Advisory Committee on Human Research Protections (SACHRP),
through its Subcommittee on Subpart A, considered whether the current
expedited review categories should be modified. On March 14, 2007,
SACHRP submitted recommendations regarding expedited review to the
Secretary, and on June 18, 2007, the Secretary sent a letter to the
SACHRP chairperson, stating that HHS would give serious consideration
to these recommendations. In regard to the current expedited review
categories, SACHRP recommended that expedited review category 7 should
be revised as described in Section V below. Therefore, in addition to
requesting comments on the entire expedited review list that was
published in the Federal Register on November 9, 1998 (63 FR 60364),
OHRP is also specifically requesting comments on SACHRP's recommended
revision of expedited review category 7.
As required under 21 CFR 56.110(a), FDA also will publish in the
Federal Register a list of categories of research that may be reviewed
by the IRB through an expedited review procedure. FDA intends to issue
the list concurrently with OHRP's issuance of its final notice, and in
compliance with 21 CFR 10.115 (good guidance practice regulations).
This approach maintains FDA's practice of moving in tandem on this
issue with OHRP.
DATES: Submit written or electronic comments by December 26, 2007.
ADDRESSES: Submit written comments to EXPEDITED REVIEW, Office for
Human Research Protections, The Tower Building, 1101 Wootton Parkway,
Suite 200, Rockville, MD 20852. Comments also may be sent via e-mail to
[email protected], or via facsimile at 301-402-2071. Comments
received within the comment period, including any personal information
provided, will be made available to the public upon request.
FOR FURTHER INFORMATION CONTACT: Mr. Glen Drew, Office for Human
Research Protections, The Tower Building, 1101 Wootton Parkway, Suite
200, Rockville, MD 20852, 1-866-447-4777 or by e-mail to:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Expedited Review Procedures
The Department of Health and Human Services (HHS) human subjects
protection regulations at 45 CFR 46.110 permit expedited review
procedures for certain kinds of human subjects research that have been
found by an IRB to involve no more than minimal risk to research
subjects, or for minor changes in previously IRB-approved research
during the period (of one year or less) for which approval is
authorized. An expedited review procedure consists of a review of
research involving human subjects by the IRB chairperson or by one or
more experienced reviewers designated by the chairperson from among
members of the IRB, in
[[Page 60849]]
accordance with the requirements at 45 CFR 46.110.
The HHS regulations at 45 CFR 46.110 also give the Secretary the
authority to amend and republish the list of research categories that
may be reviewed by the IRB through an expedited review procedure, after
consultation with other departments and agencies. This same section of
the HHS regulations also requires that an amended expedited review list
be published by the Secretary in the Federal Register.
As required by HHS regulations at 45 CFR 46.110, this proposed
amendment of expedited review category 5 was developed after consulting
with the other Federal departments and agencies that have promulgated
the Federal Policy for the Protection of Human Subjects.
II. Background on the Expedited Review List
The first expedited review list was published by the Secretary in
1981 (46 FR 8392). On November 10, 1997, OPRR, now OHRP, and FDA
published identical proposed revisions to the 1981 expedited review
list (published for OPRR at 62 FR 60607). The category of research in
question, expedited review category 5, was addressed in the proposed
categories 4 and 5 in the November 10, 1997 Federal Register Notices
requesting public comment. In those Notices, proposed categories 4 and
5 were presented as follows:
(4) Research involving existing identifiable data, documents,
records, or biological specimens (including pathological or
diagnostic specimens) where these materials, in their entirety, have
been collected prior to the research, for a purpose other than the
proposed research.
(5) Research involving solely (a) prospectively collected
identifiable residual or discarded specimens, or (b) prospectively
collected identifiable data, documents, or records, where (a) or (b)
has been generated for nonresearch purposes.
In addition, a chart included in OPRR's and FDA's November 10, 1997
Federal Register Notices, comparing the proposed expedited review list
with the 1981 list, indicated that the proposed category 4 (see above)
was intended to replace expedited review category 8 on the 1981 list.
Category 8 on the 1981 list stated, ``the study of existing data,
documents, records, pathological specimens, or diagnostic specimens.''
The comments received on OPRR's and FDA's November 10, 1997 Federal
Register Notices overwhelmingly supported the proposed revision to the
expedited review list. With minor modifications to the 1997 proposed
expedited review list, on November 9, 1998, OPRR and FDA simultaneously
published identical revised lists of categories of research activities
that may be reviewed by the IRB through the expedited review procedure
(published for OPRR at 63 FR 60364, and for FDA at 63 FR 60353). In
regard to expedited review category 5, the OPRR and FDA November 9,
1998 Federal Register Notices described this category of research as:
(5) Research involving materials (data, documents, records, or
specimens) that have been collected or will be collected solely for
nonresearch purposes (such as medical treatment or diagnosis).
(Note: Some research in this category may be exempt from the HHS
regulations for the protection of human subjects. 45 CFR
46.101(b)(4). This listing refers only to research that is not
exempt.)
The preamble of the OPRR November 9, 1998 Federal Register Notice
explained that:
Categories four (4) and five (5) on the proposed list have been
combined into one new category five (5) on the 1998 list. This new
section is added in response to comments that raised questions about
the relationship of proposed categories four (4) and five (5) to
exempt research and about separating out existing and prospectively
collected materials. The term ``nonresearch purposes'' was
maintained in new category five (5) to describe the origins of the
research material * * *
Similarly, the FDA November 9, 1998 Federal Register Notice
explained that:
Categories four and five on the proposed list have been combined
into one new category, category five, addressing research involving
materials collected or which will be collected solely for
nonresearch purposes. This new category five was formed in response
to comments that raised questions about why the two categories
separated out existing and prospectively collected materials. The
term ``nonresearch purposes'' was maintained in new category five to
describe the origins of the research materials.
III. Clarification on the Scope of Expedited Review Category Five (5)
Needed
The description of expedited review category 5 and the preamble
language as published in the November 9, 1998 OPRR and FDA Federal
Register Notices has caused confusion in the research community about
whether this expedited review category includes research involving
materials that were originally collected for either nonresearch or
research purposes, or is limited to research involving materials that
were originally collected solely for nonresearch purposes.
As evidence of this confusion, in their 1999 report, Research
Involving Human Biological Materials: Ethical Issues and Policy
Guidance, the National Bioethics Advisory Commission (NBAC) stated:
NBAC finds that there is no need to distinguish between
collections originally created for clinical purposes and those
created for research purposes. In both cases, research on the
collected materials should be eligible for expedited review if the
research presents no more than a minimal risk to the study subjects.
As a result of this finding, NBAC recommended that ``OPRR should
revise its guidance to make clear that all minimal-risk research
involving human biological materials--regardless of how they were
collected--should be eligible for expedited IRB review.'' In response
to NBAC's 1999 report, HHS convened a multi-agency Working Group to
analyze the appropriateness, feasibility, and practical implications of
implementing NBAC's recommendations and to develop a set of proposed
HHS activities to enhance the protection of human subjects in research
involving human biological materials. In regard to the NBAC
recommendation above, the HHS Working Group stated:
The Working Group concurs with Recommendation 2 and agrees with
NBAC that, for purposes of determining eligibility for expedited IRB
review, it is not necessary to draw a distinction between samples
originally collected for clinical purposes and those obtained for
research purposes. The Working Group also agrees with NBAC's
observation that current guidance regarding the types of research
that IRBs may review through expedited procedures (63 FR 60364 [HHS]
and 60353 [FDA], November 9, 1998) appears to exclude research
utilizing existing specimens previously collected for research
purposes. It is the understanding of the Working Group that this
apparent exclusion is not intentional but rather resulted from a
copy editing oversight * * *
IV. OHRP Assessment
After reviewing OPRR's and FDA's 1997 and 1998 Federal Register
notices concerning revisions to the 1981 expedited review list, NBAC's
recommendation, and the HHS Working Group's response, OHRP has
concluded that expedited review category 5 was intended to, and should,
include research involving existing information or specimens that were
previously collected for nonresearch purposes, as well as research
involving existing information or specimens that were previously
collected for research purposes--provided they were not collected for
the currently proposed research.
OHRP notes that neither OPRR's nor FDA's November 10, 1997 Federal
Register Notice indicated that the proposed expedited review category 4
[[Page 60850]]
was intended to narrow category 8 on the 1981 list to exclude existing
specimens that were collected for research purposes, provided the
materials were collected for a research purpose other than the proposed
research. Because proposed category 4 would have applied to research
involving existing identifiable information or specimens that had been
previously collected for either research or nonresearch purposes,
provided they were not collected for the currently proposed research,
OHRP has concluded that the term ``nonresearch purposes'' was retained
in the final version of category 5 to describe the origins of the
prospectively collected material only, not the origins of the
previously collected material. However, this intent was not made clear
in either OPRR's or FDA's November 9, 1998 Federal Register Notice.
V. OHRP Request for Comments
For the reasons described in Section IV, OHRP is proposing to
revise expedited review category 5 as set forth below.
Remove (5) in its entirety, and add, in its place:
(5) Research involving materials (data, documents, records, or
specimens) that
(a) have previously been collected for nonresearch purposes;
(b) have previously been collected for research purposes, provided
the materials were not collected for the currently proposed research;
or
(c) will be collected solely for nonresearch purposes.
Note: Some research under section (a) or (b) of this category
may be exempt from the HHS regulations for the protection of human
subjects. 45 CFR 46.101(b)(4). This listing refers only to research
that is not exempt.
OHRP is also requesting comments on the entire expedited review
list that was last published in the Federal Register on November 9,
1998 (63 FR 60364) to determine if other changes are needed. The
following is the current expedited review list, as published in the
Federal Register on November 9, 1998:
(1) Clinical studies of drugs and medical devices only when
condition (a) or (b) is met.
(a) Research on drugs for which an investigational new drug
application (21 CFR Part 312) is not required. (Note: Research on
marketed drugs that significantly increases the risks or decreases
the acceptability of the risks associated with the use of the
product is not eligible for expedited review.)
(b) Research on medical devices for which (i) an investigational
device exemption application (21 CFR Part 812) is not required; or
(ii) the medical device is cleared/approved for marketing and the
medical device is being used in accordance with its cleared/approved
labeling.
(2) Collection of blood samples by finger stick, heel stick, ear
stick, or venipuncture as follows:
(a) from healthy, nonpregnant adults who weigh at least 110
pounds. For these subjects, the amounts drawn may not exceed 550 ml
in an 8 week period and collection may not occur more frequently
than 2 times per week; or
(b) from other adults and children,\2\ considering the age,
weight, and health of the subjects, the collection procedure, the
amount of blood to be collected, and the frequency with which it
will be collected. For these subjects, the amount drawn may not
exceed the lesser of 50 ml or 3 ml per kg in an 8 week period and
collection may not occur more frequently than 2 times per week.
(3) Prospective collection of biological specimens for research
purposes by noninvasive means.
Examples: (a) Hair and nail clippings in a nondisfiguring
manner; (b) deciduous teeth at time of exfoliation or if routine
patient care indicates a need for extraction; (c) permanent teeth if
routine patient care indicates a need for extraction; (d) excreta
and external secretions (including sweat); (e) uncannulated saliva
collected either in an unstimulated fashion or stimulated by chewing
gumbase or wax or by applying a dilute citric solution to the
tongue; (f) placenta removed at delivery; (g) amniotic fluid
obtained at the time of rupture of the membrane prior to or during
labor; (h) supra- and subgingival dental plaque and calculus,
provided the collection procedure is not more invasive than routine
prophylactic scaling of the teeth and the process is accomplished in
accordance with accepted prophylactic techniques; (i) mucosal and
skin cells collected by buccal scraping or swab, skin swab, or mouth
washings; (j) sputum collected after saline mist nebulization.
(4) Collection of data through noninvasive procedures (not
involving general anesthesia or sedation) routinely employed in
clinical practice, excluding procedures involving x-rays or
microwaves. Where medical devices are employed, they must be
cleared/approved for marketing. (Studies intended to evaluate the
safety and effectiveness of the medical device are not generally
eligible for expedited review, including studies of cleared medical
devices for new indications.)
Examples: (a) Physical sensors that are applied either to the
surface of the body or at a distance and do not involve input of
significant amounts of energy into the subject or an invasion of the
subject's privacy; (b) weighing or testing sensory acuity; (c)
magnetic resonance imaging; (d) electrocardiography,
electroencephalography, thermography, detection of naturally
occurring radioactivity, electroretinography, ultrasound, diagnostic
infrared imaging, doppler blood flow, and echocardiography; (e)
moderate exercise, muscular strength testing, body composition
assessment, and flexibility testing where appropriate given the age,
weight, and health of the individual.
(5) Research involving materials (data, documents, records, or
specimens) that have been collected, or will be collected solely for
nonresearch purposes (such as medical treatment or diagnosis).
(Note: Some research in this category may be exempt from the HHS
regulations for the protection of human subjects. 45 CFR
46.101(b)(4). This listing refers only to research that is not
exempt.)
(6) Collection of data from voice, video, digital, or image
recordings made for research purposes.
(7) Research on individual or group characteristics or behavior
(including, but not limited to, research on perception, cognition,
motivation, identity, language, communication, cultural beliefs or
practices, and social behavior) or research employing survey,
interview, oral history, focus group, program evaluation, human
factors evaluation, or quality assurance methodologies. (Note: Some
research in this category may be exempt from the HHS regulations for
the protection of human subjects. 45 CFR 46.101(b)(2) and (b)(3).
This listing refers only to research that is not exempt.)
(8) Continuing review of research previously approved by the
convened IRB as follows:
(a) Where (i) the research is permanently closed to the
enrollment of new subjects; (ii) all subjects have completed all
research-related interventions; and (iii) the research remains
active only for long-term follow-up of subjects; or
(b) where no subjects have been enrolled and no additional risks
have been identified; or
(c) where the remaining research activities are limited to data
analysis.
(9) Continuing review of research, not conducted under an
investigational new drug application or investigational device
exemption where categories two (2) through eight (8) do not apply
but the IRB has determined and documented at a convened meeting that
the research involves no greater than minimal risk and no additional
risks have been identified.
In addition to requesting comments on all of the expedited review
categories listed above, OHRP specifically requests comments on a
recommendation by SACHRP to revise expedited review category 7 as
follows:
Research (a) on individual or group characteristics or behavior
(including, but not limited to, research on perception, cognition,
motivation, affective states, interpersonal relationships, identity,
language, communication, cultural beliefs or practices, and social
behavior); or (b) employing methods commonly used in social,
behavioral, epidemiologic, health services and educational research
(including, but not limited to, survey, interview, oral history,
participant observation, ethnographic, focus group, program
evaluation, human factors evaluation, or quality assurance methods).
(Note: Some research in this category may be exempt from the HHS
regulations for the protection of human subjects. 45 CFR
46.101(b)(2) and (b)(3). This listing refers only to research that
is not exempt.)
[[Page 60851]]
Dated: October 22, 2007.
Ivor A. Pritchard,
Acting Director, Office for Human Research Protections.
[FR Doc. E7-21126 Filed 10-25-07; 8:45 am]
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