[Federal Register Volume 74, Number 41 (Wednesday, March 4, 2009)]
[Notices]
[Pages 9411-9421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4618]


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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

National Institutes of Health


Office of Biotechnology Activities; Recombinant DNA Research: 
Proposed Actions Under the NIH Guidelines for Research Involving 
Recombinant DNA Molecules (NIH Guidelines)

AGENCY: National Institutes of Health (NIH), PHS, DHHS.

ACTION: Notice of consideration of a proposed action under the NIH 
Guidelines.

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

SUMMARY: In 2006, the National Science Advisory Board for Biosecurity, 
an advisory committee to the Secretary of the Department of Health and 
Human Services, the NIH Director and all Federal entities that conduct/
support life sciences research published a report

[[Page 9412]]

entitled ``Addressing Biosecurity Concerns Related to the Synthesis of 
Select Agents.'' \1\ The report included a recommendation that the 
United States Government (USG) ``examine the language and 
implementation of current biosafety guidelines to ensure that such 
guidelines and regulations provide adequate guidance for working with 
synthetically derived DNA and are understood by all those working in 
areas addressed by the guidelines.'' The USG adopted this 
recommendation and asked NIH to review the NIH Guidelines for Research 
with Recombinant DNA (NIH Guidelines) to evaluate whether these 
guidelines need to be revised to address biosafety concerns for 
research with synthetic DNA. With the advice of the NIH Recombinant DNA 
Advisory Committee (RAC), which is responsible for advising the NIH 
Director on all aspects of recombinant DNA technology, including 
revisions to the NIH Guidelines, the following proposed changes were 
developed. As outlined in more detail below, the proposed changes will 
expand the scope of the NIH Guidelines to specifically cover nucleic 
acid molecules made solely by synthetic means. The changes apply to 
basic laboratory research and clinical research. In addition, changes 
were made to clarify the criteria for determining whether an experiment 
to introduce drug resistance into a microorganism raises important 
public health issues such that it must be reviewed by the RAC and 
approved by the NIH Director. Finally, the proposed amendments speak to 
the appropriate level of review for recombinant or synthetic 
experiments involving more than half but less than two-thirds of the 
genome of certain viruses in tissue culture. These changes were 
prompted by an increased understanding of the biology of certain 
viruses that demonstrate there may be biosafety risks with certain 
viruses that contain less than two-thirds of the viral genome.
---------------------------------------------------------------------------

    \1\ The full document is available at http://oba.od.nih.gov/biosecurity/pdf/Final_NSABB_Report_on_Synthetic_Genomics.pdf.

DATES: The public is encouraged to submit written comments on this 
proposed action. Comments may be submitted to OBA in paper or 
electronic form at the OBA mailing, fax, and e-mail addresses shown 
below under the heading FOR FURTHER INFORMATION CONTACT. All comments 
should be submitted by May 4, 2009. All written comments received in 
response to this notice will be available for public inspection in the 
NIH OBA office, 6705 Rockledge Drive, Suite 750, MSC 7985, Bethesda, MD 
---------------------------------------------------------------------------
20892-7985, weekdays between the hours of 8:30 a.m. and 5 p.m.

FOR FURTHER INFORMATION CONTACT: If you have questions, or require 
additional information about these proposed changes, please contact OBA 
by e-mail at [email protected], or telephone at 301-496-9838. Comments can 
be submitted to the same e-mail address or by fax to 301-496-9839 or 
mail to the Office of Biotechnology Activities, National Institutes of 
Health, 6705 Rockledge Drive, Suite 750, MSC 7985, Bethesda, Maryland 
20892-7985. Background information may be obtained by contacting NIH 
OBA by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:
    Background: Nucleic Acid (NA) synthesis technology, in combination 
with other rapidly evolving capabilities in the life sciences, such as 
directed molecular evolution and viral reverse genetics, has galvanized 
segments of the scientific community. It also has captured the 
attention of the general public and policymakers, prompting far-
reaching questions about the potential use of these techniques--
including the synthesis of novel forms of life. These techniques 
promise to accelerate scientific discovery and have the potential to 
yield new therapeutics for disease. This same technology may lead to 
the modification of existing or the creation of new pathogens with 
unexpected and potentially dangerous characteristics.
    In 2004, the National Research Council (NRC) published a report 
that made an important contribution to the development of biosecurity 
policy for the biological sciences, ``Biotechnology in the Age of 
Terrorism: Confronting the Dual Use Issue.'' \2\ While this report was 
not the first to recognize this problem, and indeed the U.S. Government 
(USG) had already initiated an examination of security issues in the 
biological sciences, the NRC report laid out a series of actions to 
improve biosecurity in life science research, one of which was the 
creation of an advisory body. The USG recognized the need for such an 
advisory body and formed the National Science Advisory Board for 
Biosecurity (NSABB) to advise the U.S. Government on strategies for 
minimizing the potential for misuse of information and technologies 
from life sciences research, taking into consideration both national 
security concerns and the needs of the research community. The NSABB, 
as it is chartered, differs somewhat from the panel proposed by the NRC 
report, but has aims similar to those envisioned by the NRC committee.
---------------------------------------------------------------------------

    \2\ The report is available from the National Academies Press: 
http://www.nap.edu/catalog.php?record_id=10827#toc.
---------------------------------------------------------------------------

    At the NSABB's first meeting, the Secretary of Health and Human 
Services tasked the NSABB with identifying potential biosecurity 
concerns raised by the rapidly advancing ability to synthesize select 
agents (7 CFR part 331, 9 CFR part 121, and 42 CFR part 73) and other 
dangerous pathogens. In 2006, NSABB published a report entitled 
``Addressing Biosecurity Concerns Related to the Synthesis of Select 
Agents.'' \3\ In that report the NSABB noted that practitioners of 
synthetic genomics or researchers using synthetic nucleic acids in the 
emerging field of synthetic biology are often educated in disciplines 
that do not routinely include formal training in biosafety, e.g., 
engineering. These researchers may be uncertain about when to consult 
an Institutional Biosafety Committee (IBC).
---------------------------------------------------------------------------

    \3\ The full document is available at http://oba.od.nih.gov/biosecurity/pdf/Final_NSABB_Report_on_Synthetic_Genomics.pdf.
---------------------------------------------------------------------------

    The NSABB recommended to the Secretary of the Department of Health 
and Human Services that the language and implementation of current 
biosafety guidelines be examined to ensure that such guidelines and 
regulation provide adequate guidance for working with synthetically 
derived nucleic acids. This recommendation on the need for biosafety 
guidance was considered by the Executive Branch through a trans-Federal 
policy coordination process. The recommendation on the need for 
biosafety guidance was accepted by the U.S. Government with the 
understanding that implementation would be through modification of the 
NIH Guidelines as appropriate. The changes to the NIH Guidelines would 
then be cross-referenced in the Centers for Disease Control and 
Prevention/NIH publication entitled: Biosafety in Microbiological and 
Biomedical Laboratories (BMBL).
    The Recombinant DNA Advisory Committee (RAC) considered the 
applicability of the NIH Guidelines to the creation of, and experiments 
with synthetic nucleic acids (``synthetic biology'') and whether the 
NIH Guidelines adequately address the biosafety concerns that may arise 
from this research. The proposed revisions to the NIH Guidelines are 
intended to clarify the applicability of the NIH Guidelines to research 
with synthetic nucleic acids and provide principles and procedures for 
risk assessment and management of such research.
    While the initial NSABB recommendation focused on synthetic

[[Page 9413]]

genomics, which is the synthesis of nucleic acids using chemical or 
other methods that do not require traditional recombinant DNA 
techniques, it was recognized that this may be only be the first step 
in a research proposal. The synthetic nucleic acid will then likely be 
placed in cells or organisms. As it is articulated in the NIH 
Guidelines, it is the manipulation of the recombinant nucleic acids 
that leads to different biosafety concerns. As such, the focus of any 
review of synthetic genomics from a biosafety perspective needs to 
address the biological experiments that will be carried out. Therefore, 
with respect to the NIH Guidelines, the task was to review the 
biosafety considerations of introducing these synthetic nucleic acids 
into biological systems.
    Synthetic genomics utilizes different techniques than traditional 
recombinant methods of synthesis; however, the ultimate product may be 
the same. The biosafety considerations in most cases are related to the 
product being produced more than the technique used. In other words, 
the technique for creating sequences of nucleic acids is not 
determinative of virulence, transmissibility and pathogenicity of the 
product, which are key considerations in biosafety. There is no one to 
one correlation between increasing nucleic acid diversity and 
increasing risk of harm. Indeed, what has developed in nature involves 
complex and highly regulated sequences of nucleic acids in which there 
is often synergy between genes. Bringing together a number of genes or 
sequences from different sources may result in a nucleic acid sequence 
that is not functional in an organism. On the other hand, a single 
nucleic acid change which could be done by recombinant or synthetic 
means could lead to a significant enhancement in virulence. The focus 
of a biosafety analysis should be on the product with consideration of 
the source of the sequences. Synthetic techniques may result in a 
greater range of products than recombinant methods but the underlying 
challenge is the same: trying to understand how those disparate parts 
will act together. Ultimately a biological analysis of the end results 
will be required.
    Under the current risk assessment framework of the NIH Guidelines, 
the starting point for any risk assessment begins with an assessment of 
the parent organism from which the sequence is derived. As discussed 
under Section II, Safety Considerations, synthetic techniques may 
enable the synthesis of more complex chimeras containing sequences from 
a number of different sources. This increasing complexity may make the 
task of determining the parent organism more challenging. This is 
addressed in proposed language that will be added to the risk 
assessment section of the NIH Guidelines (see proposed changes to 
Section II-A).
    Therefore, the changes proposed below treat the biosafety risks of 
experiments that use recombinant and synthetic techniques as 
equivalent. Also, although it was recognized that synthetic genetic 
manipulation techniques are not necessarily a very recent development, 
the integration of other fields (for example, chemistry and 
engineering) may lead to rapid development of yet unknown products that 
may raise new biosafety risks not anticipated. The risk management 
framework being presented herein is based on the current science and 
that which appears to be feasible in the foreseeable future.
    The amendments will broaden the scope of the NIH Guidelines, which 
currently cover research involving DNA molecules created via 
recombinant techniques (i.e., joining of DNA molecules), to encompass 
nucleic acids that are synthesized chemically or by other means without 
the use of recombinant technology. As amended, the NIH Guidelines will 
apply to all nucleic acids. This is accomplished through changes in 
Section I-A, Purpose and Section I-B, Definition of Recombinant DNA 
Molecules. The required level of review will be based on the risk of 
the experiment, i.e. the risk to the laboratory worker, the public and 
the environment. Low risk basic research involving non-replicating 
synthetic nucleic acids will be exempt from the NIH Guidelines and from 
review at the local level. High risk basic and clinical studies may be 
subject to review by the RAC and the NIH. To effect these changes, four 
sections of the NIH Guidelines will be revised. The title of the 
document will be changed to NIH Guidelines for Research Involving 
Recombinant and Synthetic Nucleic Acid Molecules and throughout the NIH 
Guidelines the term recombinant DNA will be changed to recombinant and 
synthetic nucleic acids.
    In addition to broadening the scope of the NIH Guidelines to 
encompass synthetic nucleic acids, included are proposed amendments to 
two other sections of the NIH Guidelines, Section III-A-1 and Section 
III-E-1, in order to (1) clarify the oversight of recombinant 
experiments involving the introduction of drug resistance traits and 
(2) to change the level of review for recombinant or synthetic 
experiments involving more than half but less than two-thirds of the 
genome of certain viruses in tissue culture. These proposed amendments 
were recommended by the RAC.
    Section III-A-1 requires certain experiments involving the transfer 
of drug resistance traits to microorganisms to be reviewed by the RAC 
and approved by the NIH Director. The current language has raised 
concerns from IBCs and investigators seeking to identify those 
experiments that require this heightened review. The revisions to 
Section III-A-1 will clarify that all experiments involving the 
transfer of a drug resistance trait to a microorganism will be subject 
to RAC review and NIH Director approval if the microorganism's 
acquisition of the trait could compromise public health. The changes 
will clarify that the microorganism's ability to acquire the trait 
naturally is not relevant to the safety of the experiment, that the 
provisions apply even if the drug at issue is not considered the ``drug 
of choice,'' and that adverse effects on population subgroups need to 
be considered.
    Under the NIH Guidelines, approval for an experiment under Section 
III-A is specific to the investigator submitting the proposal. 
Recognizing that this may not be an efficient use of resources and may 
slow important research, a new provision will authorize OBA to make a 
determination that a proposed experiment that would fall under Section 
III-A is equivalent to an experiment that has been reviewed previously 
as a Major Action and approved by NIH Director. In such cases, OBA will 
have the authority to permit this research to proceed without going 
through RAC review and NIH Director approval if OBA determines that 
there are no substantive differences in experimental design and 
pertinent information has not emerged since submission of the initial 
experiment that would impact on the biosafety or public health risks 
for the proposed experiments.
    Section III-E-1 of the NIH Guidelines currently states that tissue 
culture experiments involving viral constructs that contain less than 
two-thirds of the genome of any one of the high risk viruses may be 
performed at the lowest containment level (Biosafety Level 1) and 
initiated upon registration with the local institutional biosafety 
committee. The change proposed to this section will increase the 
threshold to less than one-half of the viral genome and require 
evidence that the resulting nucleic acid molecules are not capable of 
producing a replication competent virus. These changes are prompted by 
an increased understanding of the biology of certain viruses for which 
there may be biosafety

[[Page 9414]]

risks for research involving less than two-thirds of the viral genome.
    These recommendations were adopted unanimously by the RAC at its 
March 2008 meeting. Included in these proposed changes are targeted 
questions that were considered in developing the proposed revisions to 
the NIH Guidelines. NIH requests not only comments on the proposed 
changes but also comment on the specific issues raised by these 
questions.
    It should be noted that the NIH Guidelines currently apply to 
research that is conducted at or sponsored by institutions that receive 
NIH funding for any research involving recombinant DNA. Due to these 
proposed changes, the NIH Guidelines will apply to research that is 
conducted at or sponsored by institutions that receive NIH funding for 
any research involving recombinant DNA and synthetic acid molecules. In 
addition, other, non-NIH, U.S. Government agencies, including the 
Department of Defense, the Department of Veterans Affairs and 
Department of Agriculture, currently have policies in place stating 
that all recombinant DNA research conducted by or funded by these 
agencies must comply with the NIH Guidelines. While the NIH Guidelines 
may not govern all Government funded research, it may be used as a tool 
for the entire research community to understand the potential biosafety 
implications of their research.
    In reviewing the proposed changes it is important to understand 
that NIH Guidelines outline appropriate biosafety practices and 
containment measures for laboratory recombinant DNA (rDNA) research and 
govern the conduct of clinical trials that involve the deliberate 
transfer of rDNA, or DNA or RNA derived from rDNA, into human research 
participants. The focus of the NIH Guidelines is on the risks to 
laboratory workers, the public and the environment associated with rDNA 
research and if implemented, synthetic nucleic acid research. The NIH 
Guidelines do promote the use of biological containment through the 
application of highly specific biological barriers that may limit the 
infectivity, dissemination, or survival of recombinant agents outside 
the laboratory. Biological containment may, therefore, mitigate the 
consequences of intentional misuse of such agents but does not directly 
address biosecurity issues raised by deliberate exposure outside of a 
research setting. As revised, the NIH Guidelines will continue to focus 
on the biosafety aspects of research with recombinant and synthetic 
nucleic acid molecules.
    There may also be biosecurity or dual use research concerns with 
some research involving recombinant or synthetic nucleic acid 
molecules, but that is beyond the scope of the NIH Guidelines. 
Biosecurity aspects of research involving infectious agents are 
addressed in other venues, including for example, in the CDC-NIH 
Biosafety in Microbiological and Biomedical Laboratories, 5th Edition 
(Section VI, Principles of Laboratory Biosecurity) and the Select Agent 
Rules (42 CFR 73, 9 CFR part 121 and 7 CFR part 131). In addition, the 
U.S.G. continues to address these issues. For example, the NSABB is 
developing recommendations for the oversight of dual use research and 
is also addressing the issue of personnel reliability among individuals 
working with select agents.

Proposed Amendments to the NIH Guidelines

    In order to ensure that biosafety considerations of synthetic 
biology research are addressed appropriately, the NIH is proposing the 
following changes to the NIH Guidelines:

Title of the NIH Guidelines

    The title of the document is proposed to be changed from the NIH 
Guidelines for Research Involving Recombinant DNA Molecules to the NIH 
Guidelines for Research Involving Recombinant and Synthetic Nucleic 
Acid Molecules.

Section I. Scope of the NIH Guidelines

    In order to clarify the applicability of the NIH Guidelines to 
research involving synthetic nucleic acids (NA), the following 
modifications are proposed to Section I, Scope of the NIH Guidelines.

Section 1-A. Purpose

    Section I-A (Purpose) of the NIH Guidelines currently states that: 
``the purpose of the NIH Guidelines is to specify practices for 
constructing and handling: (i) Recombinant deoxyribonucleic acid (DNA) 
molecules, and (ii) organisms and viruses containing recombinant DNA 
molecules.'' Section I-A is proposed to be amended to read: ``The 
purpose of the NIH Guidelines is to specify the practices for 
constructing and handling: (i) Recombinant nucleic acid molecules, (ii) 
synthetic nucleic acid molecules, including those wholly or partially 
containing functional equivalents of nucleotides, or (iii) organisms 
and viruses containing such molecules.''
    As a result of these modifications, the NIH Guidelines will clearly 
apply to both recombinant and synthetically derived nucleic acids, 
including those that contain functional analogs of nucleotides (e.g. , 
those used in artificially engineered genetic systems).
    In accordance with this change in the scope of the NIH Guidelines 
the term ``recombinant DNA molecules'' will be replaced with 
``recombinant and synthetic nucleic acid molecules.''

Section I-B. Definition of Recombinant and Synthetic Nucleic Acids

    The current definition of recombinant DNA molecule in the NIH 
Guidelines (Section I-B) is limited because it only explicitly refers 
to DNA and requires that segments be joined, which may not need to 
occur in research with synthetic NAs. The proposed revisions to the 
definition would retain a definition of recombinant NA similar to the 
current one for recombinant DNA but also add synthetic NA created 
without joining of segments. The current definition of recombinant DNA 
in Section I-B of the NIH Guidelines is articulated in three paragraphs 
labeled as A, B, and C in this notice only. Paragraph A states: ``In 
the context of the NIH Guidelines, recombinant DNA molecules are 
defined as either: (i) Molecules that are constructed outside living 
cells by joining natural or synthetic DNA segments to DNA molecules 
that can replicate in a living cell, or (ii) molecules that result from 
the replication of those described in (i) above.'' Paragraph B states: 
``Synthetic DNA segments which are likely to yield a potentially 
harmful polynucleotide or polypeptide (e.g. , a toxin or a 
pharmacologically active agent) are considered as equivalent to their 
natural DNA counterpart. If the DNA segment is not expressed in vivo as 
a biologically active polynucleotide or polypeptide product it is 
exempt from the NIH Guidelines.'' Paragraph C states: ``Genomic DNA of 
plants and bacteria that have acquired a transposable element, even if 
the latter was donated from a recombinant vector no longer present, are 
not subject to the NIH Guidelines unless the transposon itself contains 
recombinant DNA.''
    The following modifications are proposed to Section I-B. Definition 
of Recombinant DNA Molecules: Paragraph A is proposed to be revised to 
read: ``In the context of the NIH Guidelines, recombinant and synthetic 
nucleic acids are defined as: (i) Recombinant nucleic acid molecules 
that are constructed by joining nucleic acid molecules and that can 
replicate in a living cell, (ii) synthetic nucleic acid molecules that 
are chemically, or by other means, synthesized or amplified nucleic 
acid molecules that may wholly or partially contain functional

[[Page 9415]]

equivalents of nucleotides, or (iii) molecules that result from the 
replication of those described in (i) or (ii) above.''
    Paragraph B will no longer be included in the definition. It was 
added to the NIH Guidelines in 1982 to clarify that then novel 
synthetic DNA segments would be considered as equivalent to their 
natural DNA counterparts with regards to containment conditions; 
however, it only covered synthetic DNA if it produced a toxin or a 
pharmacologically active agent. The language presented difficulty in 
interpretation because of the lack of definition of ``toxin or a 
pharmacologically active agent.'' Paragraph B is proposed to be deleted 
due to the fact that the concepts are sufficiently covered in the 
following portions: The new (ii) in paragraph A which explicitly 
extends the scope of the NIH Guidelines to cover recombinant and 
synthetic constructs, and Section III-F (Exempt Experiments) of the NIH 
Guidelines, which as discussed later, exempts those synthetic nucleic 
acid constructs that do not pose a significant biosafety risk.
    Paragraph C will be deleted from this portion and will be moved to 
Section III-F of the NIH Guidelines. This is a proposed reorganization 
of the NIH Guidelines so that exempt molecules will be described in one 
place. A new Section IIIF-7 is proposed to read: ``Genomic DNA 
molecules of plants and bacteria that have acquired a transposable 
element provided the transposable element does not contain any 
recombinant or synthetic DNA'' are not subject to the NIH Guidelines.
    In accordance with these changes in the scope and definition of the 
NIH Guidelines, the term ``recombinant DNA molecules'' will be replaced 
with ``recombinant and synthetic nucleic molecules'' throughout the NIH 
Guidelines.

Section III-C-1. Experiments Involving the Transfer of Recombinant DNA, 
or DNA or RNA Derived From Recombinant DNA, Into One or More Human 
Research Participants

    In accordance with the change to the scope and definition of 
recombinant DNA, the definition of human gene transfer experiments will 
be amended. The first paragraph of Section III-C-1 currently states: 
``For an experiment involving the deliberate transfer of recombinant 
DNA, or DNA or RNA derived from recombinant DNA, into human research 
participants (human gene transfer), no research participant shall be 
enrolled (see definition of enrollment in Section I-E-7) until the RAC 
review process has been completed (see Appendix M-I-B, RAC Review 
Requirements).'' As amended the first paragraph will state: ``For an 
experiment involving the deliberate transfer of recombinant or 
synthetic nucleic acids into human research participants (human gene 
transfer), no research participant shall be enrolled (see definition of 
enrollment in Section I-E-7) until the RAC review process has been 
completed (see Appendix M-I-B, RAC Review Requirements).''

Section III-F. Exempt Experiments

    Additional modifications are proposed to augment or clarify 
experiments that are exempt from the NIH Guidelines, those listed in 
Section III-F. The exemptions under Section III-F are designed to 
strike a balance between safety and overregulation. They exempt certain 
nucleic acid molecules from oversight by the NIH Guidelines because 
their introduction into a biological system is not expected to have a 
biosafety risk that requires review by an IBC or the introduction of 
these nucleic molecules into biological systems would be akin to 
processes that already occur in nature and hence determining proper 
biosafety practices would be evident by the characteristics of 
naturally occurring sequence and/or would be covered by other 
guidances. Is there a risk that these exemptions could inadvertently 
exempt an experiment that is deserving of IBC review? First, it is 
important to recognize that with the exception of the new proposed III-
F-1 discussed below, the exemptions from the original NIH Guidelines 
have been preserved with minor modifications. While synthetic synthesis 
of nucleic acids will potentially raise new biosafety concerns the 
exemptions focus narrowly on a small set of products that should not 
raise biosafety concerns that warrant IBC review whether created by 
recombinant or synthetic means.
    To emphasize that research exempt from the NIH Guidelines will 
still have biosafety considerations and that other standards of 
biosafety may apply, a modification is proposed to the introductory 
language. Section III-F currently states: ``The following recombinant 
DNA molecules are exempt from the NIH Guidelines and registration with 
the Institutional Biosafety Committee is not required.'' This portion 
is proposed to read: ``The following recombinant and/or synthetic 
nucleic acids molecules are exempt from the NIH Guidelines and 
registration with the Institutional Biosafety Committee is not 
required. However, other Federal and state standards of biosafety may 
still apply to such research (for example, the CDC/NIH Biosafety in 
Microbiological and Biomedical Laboratories Manual).''

Section III-F-1

    A new exemption under Section III-F-1 will exempt synthetic nucleic 
acids that cannot replicate from the NIH Guidelines unless they are 
used in human gene transfer (see Section III-C-1). This exemption is 
proposed so that the NIH Guidelines apply to synthetic NA research in a 
manner consistent with the current oversight of basic and preclinical 
recombinant DNA research. Currently oversight is limited to recombinant 
molecules that replicate or are derived from such molecules. The added 
section exempts basic, non-clinical research with synthetic NA that can 
not replicate or were derived from molecules that can replicate. The 
biosafety risks of using such constructs in basic and preclinical 
research are believed to be low. If a nucleic acid is incapable of 
replicating in a cell, any toxicity associated with that nucleic acid 
should be confined to that particular cell or organism and spread to 
neighboring cells or organisms should not occur to any appreciable 
degree. This type of risk is identical to that observed with chemical 
exposures, although nucleic acids are generally far less toxic than 
most chemicals.
    Members of the RAC Biosafety Working Group noted that one of the 
original impetuses for creating a special biosafety oversight for 
recombinant DNA research was the novel biosafety risks to the 
individual laboratory worker, the public health, and the environment 
presented by the ability of novel replicating nucleic acids to 
disseminate and persist within and outside of the laboratory. This risk 
of transmissibility is distinct from chemicals or other toxins, because 
of the potential for long-term persistence.
    Human gene transfer clinical trials should be differentiated from 
basic research. Current human gene transfer trials often involve non-
replicating recombinant molecules. These are captured by the NIH 
Guidelines (see Section III-C-1 and Appendix M), because they are 
derived through recombinant technology that has steps involving 
replication (e.g., replication incompetent vectors, RNAi or antisense 
RNA expressed from vectors are all derived from replicating systems). 
The biosafety and health risks for human gene transfer for synthetic 
non-replicating nucleic acids are not fundamentally different from non-
replicating recombinant vectors.
    The safety distinction between laboratory research and human gene

[[Page 9416]]

transfer is based on the difference in the potential health risk due to 
inadvertent lab exposure during basic or preclinical work and 
deliberate clinical gene transfer. The doses and routes of 
administration used in human gene transfer generally increase the 
risks. The risks to be considered for human gene transfer are not 
limited to the replicative nature of the vector but include transgene 
effects, risks of insertional mutagenesis, and immunological responses. 
For example, in the context of human gene transfer, the deliberate 
transfer of large numbers of replication incompetent retroviral vectors 
to hematopoietic stem cells in human clinical trials for X-Linked 
severe combined immunodeficiency disease contributed to the development 
of leukemia in some subjects starting several years after dosing. This 
is a unique situation in human trials that would not be replicated in a 
preclinical lab setting. Human gene transfer also raises scientific, 
medical, social and ethical considerations that warrant special 
attention and public discussion.
    The following new exemption is proposed to be inserted as Section 
III-F-1; the current exemptions III-F-1 through III-F-5 are proposed to 
be re-numbered as III-F-2 through III-F-6. Section III-F-6 is proposed 
to become III-F-8, because a new section III-F-7 is proposed to be 
inserted. Section III-F-1 is proposed to read:

    Section III-F-1: Synthetic nucleic acids that can not replicate, 
and that are not deliberately transferred into one or more human 
research participants (see Section III-C and Appendix M).

    In arriving at the conclusion that non-replicating synthetic 
nucleic acids pose limited risks to the public or environment, the RAC 
considered different types of potential experiments involving a range 
of possible exposures (e.g., dose, route) and nucleic acids (e.g., 
positive strand RNA viruses, replication incompetent integrating 
vectors). For most research, the risks were considered sufficiently low 
so that little benefit was considered to be gained by increased 
oversight, which may hinder research. However, some questions remained. 
The public is encouraged to submit written comments on the following 
questions raised by this proposed modification to distinguish between 
laboratory and clinical research with replicating and non-replicating 
NA molecules.
    (1) Is there a sufficient distinction between the risks of basic 
and preclinical research with replicating vs. non-replicating synthetic 
molecules to warrant the exemption?
    (a) What are the risks with the use of replication incompetent 
integrating vectors in the laboratory? For example, preclinical 
research with recombinant lentiviral vectors is covered by the current 
NIH Guidelines because the vectors are generated using a step involving 
replication. At the lower doses typically used in laboratory 
experiments, are the risks to the laboratory worker of such non-
replicating, synthetic NA research sufficiently low as to warrant 
exemption from the NIH Guidelines?
    (2) Since the increased risk associated with human gene transfer is 
in part related to the administration of higher doses, should the 
exemption be limited to experiments involving the handling of low 
quantities or doses of NAs? What quantity would not be expected to pose 
a biosafety risk?
    (3) Are there examples of non-replicating, synthetic NA research 
that should not be exempt due to greater potential risks (e.g., 
expression cassettes for oncogenes or toxins)?
    (4) For human gene transfer research, are there classes of non-
replicating molecules that should be exempt due to lower potential 
risks (e.g., antisense RNA, RNAi, etc.)? If so, what criteria should be 
applied to determine such classes?

Section III-F-2

    Section III-F-1 is proposed to be renumbered to III-F-2 and will be 
amended to clarify that replicating NAs that are not in cells (in 
addition to organisms and viruses) are exempt. Essentially, nucleic 
acids that are not in a biological system that will permit replication 
and that have not been modified to enable improved penetration of cell 
membranes are extremely unlikely to have biosafety risks.
    The primary risks associated with all nucleic acids, whether 
synthetic or natural, are the effects these can engender when inside an 
organism or the cellular compartment. Nucleic acids can alter protein 
expression patterns in cells by binding to nucleic acids and blocking 
(1) replication of DNA, (2) transcription of DNA into RNA and (3) 
translation of RNA into protein. Furthermore, binding of synthetic or 
natural DNA to cellular nucleic acids may result in degradation of 
cellular DNA or RNA through the activity of natural cellular defense 
mechanisms. Natural or synthetic DNA may have catalytic activity (e.g., 
ribozymes) that can cleave target sequences in nucleic acids. It is 
these effects that can potentially lead the cell or organism containing 
the nucleic acid to pose a risk to laboratory workers, the public or 
environment.
    None of the effects described above will occur unless the nucleic 
acid is introduced into an organism, or a cell. Nucleic acids, by 
virtue of their physical and chemical properties do not readily 
penetrate cell membranes. The negative charge of a nucleic acid 
molecule effectively prevents transfer across the plasma membrane of a 
cell unless the negative charges of the molecule are either masked or 
neutralized by addition of chemical compounds (e.g., cationic lipids, 
calcium phosphate) or the cell membrane is physically perforated (e.g., 
electroporation) to enable penetration and uptake by the cell.
    In practice, the current NIH Guidelines cover the introduction or 
modification of recombinant DNA in tissue culture, organisms and 
viruses. Therefore, for clarity and in recognition that techniques have 
developed to more readily permit introduction of nucleic acids into 
cells, the amended F-1 speaks to cells, organisms and viruses. In 
addition, as stated above, natural barriers exist for entry of 
unmodified nucleic acids into cells. However, manipulation of molecules 
modified for improved penetration of cell membranes in the laboratory 
may have increased risk due to the enhanced ability to penetrate cell 
membranes and thus be able to replicate. Therefore, section III-F-1 is 
being modified to address such modified nucleic acids as well.
    Specifically, Section III-F-1 is proposed to be renumbered as III-
F-2 and amended as follows:
    The current Section III-F-1 states: ``Those that are not in 
organisms or viruses.''
    Section III-F-1 will be re-numbered to III-F-2 and is proposed to 
be amended to: ``Section III-F-2. Recombinant or synthetic nucleic 
acids that are not in organisms, cells or viruses and that have not 
been modified or manipulated (e.g., encapsulated into synthetic or 
natural vehicles) to render them capable of penetrating cellular 
membranes.''
    The proposed Sections III-F-3 through III-F-7 retain exemptions 
that were in the original NIH Guidelines with minor revisions. In 
reviewing these exemptions it is important to understand that it is not 
the goal of the NIH Guidelines to regulate all nucleic acid research 
but rather that subset of research that through recombinant or now 
synthetic means results in unique organisms or cells that potentially 
possess characteristics not yet seen in nature and hence pose potential 
safety risks both to the individual as well as

[[Page 9417]]

the community should there be an inadvertent release. Specifically, the 
molecules that fall under the new Section III-F-3 (formerly Section 
III-F-2) are those that consist solely of the exact nucleic acid 
sequence from a single source that exists contemporaneously in nature. 
Those described in the new Sections F-4 and F-5 (formerly Sections F-3 
and F-4) are nucleic acids that are being propagated in a host that is 
either the natural host for such nucleic acids or is a closely related 
prokaryotic or eukaryotic host. Again such constructs may already exist 
outside of a laboratory. Research that falls under F-6 (formerly 
Section F-5) is exempt because the manipulation of these nucleic acids 
in a laboratory setting would be equivalent to that which occurs in 
nature when certain organisms exchange genetic material via 
physiological processes (e.g., bacterial mating) outside of a 
laboratory setting. It is limited to those organisms that are already 
known to exchange DNA in nature. Finally, research that falls under the 
proposed Section F-7 also involves a natural physiological process, 
i.e., transposition. Transposons are nucleic acid molecules that exist 
in a wide variety of organisms from bacteria to humans. These molecules 
have the ability to move from one portion of an organism's genome to 
another. This new Section of III-F captures what was previously an 
exemption to the definition in the NIH Guidelines of a recombinant DNA 
molecule. Unless a transposon has been modified to be a recombinant 
molecule, genomic DNA of either plants or bacteria that has acquired a 
transposon is not subject to the NIH Guidelines. This is because if 
these transposons have not been modified by the insertion of 
recombinant or synthetic DNA, they are equivalent to what is already in 
nature and the process occurs naturally outside of lab.
    The following changes are proposed for the Section III-F 
exemptions.

Section III-F-3

    Section III-F-2 is proposed to be re-numbered to III-F-3 and 
amended. In the current NIH Guidelines, research with molecules from a 
single DNA source is exempt. This would include molecules containing 
duplications or deletions; however, such molecules may present 
different risks than those of the wild type parent agents. The revised 
language is intended to clarify that exempt molecules must have the 
exact nucleic acid sequence from an organism that currently exists in 
nature in order to be exempt (e.g., because the 1918 influenza no 
longer exists in nature, research involving the reconstructed virus 
would not qualify for this exemption). The exemption does not imply 
that there are no biosafety risks associated with such research but 
rather recognizes that the NIH Guidelines do not apply to wild-type 
strains currently found in nature because a risk assessment for such 
work can be made with reference to the biological characteristics of 
the wild-type organism and are covered by other NIH biosafety standards 
(for example CDC/NIH Biosafety in Microbiological and Biomedical 
Laboratories Manual).
    The following modifications are proposed for Section III-F-2. 
Section III-F-2 is proposed to be re-numbered to III-F-3 and amended as 
follows:
    The current III-F-2 states: ``Those that consist entirely of DNA 
segments from a single nonchromosomal or viral DNA source, though one 
or more of the segments may be a synthetic equivalent.'' III-F-2 is 
proposed to be renumbered to III-F-3 and is proposed to be amended to 
state: ``Recombinant or synthetic nucleic acids that consist solely of 
the exact nucleic acid sequence from a single source that exists 
contemporaneously in nature.''
    This proposed modification would change ``single nonchromosomal or 
viral source'' to simply ``single source.'' Specific comment is 
requested as to whether it is sufficiently clear that single source 
refers to ``single chromosomal, non-chromosomal, or viral NA source'' 
or should the language be specifically spelled out?

Section III-F-4

    The current Section III-F-3 is proposed to be renumbered to Section 
III-F-4 and amended. Section III-F-3 states: ``Those that consist 
entirely of DNA from a prokaryotic host including its indigenous 
plasmids or viruses when propagated only in that host (or a closely 
related strain of the same species), or when transferred to another 
host by well established physiological means.'' It is proposed to be 
amended as follows: ``Section III-F-4. Those that consist entirely of 
nucleic acids from a prokaryotic host including its indigenous plasmids 
or viruses when propagated only in that host (or a closely related 
strain of the same species), or when transferred to another host by 
well established physiological means.''

Section III-F-5

    The current Section III-F-4 is proposed to be renumbered to Section 
III-F-5. Section III-F-4 currently states: ``Those that consist 
entirely of DNA from a eukaryotic host including its chloroplasts, 
mitochondria, or plasmids (but excluding viruses) when propagated only 
in that host (or a closely related strain of the same species).'' It is 
proposed to state the following: ``Section III-F-5: Those that consist 
entirely of nucleic acids from a eukaryotic host including its 
chloroplasts, mitochondria, or plasmids (but excluding viruses) when 
propagated only in that host (or a closely related strain of the same 
species).''

Section III-F-6

    The current Section III-F-5 is proposed to be renumbered to Section 
III-F-6. The current Section III-F-5 states: ``Those that consist 
entirely of DNA segments from different species that exchange DNA by 
known physiological processes, though one or more of the segments may 
be a synthetic equivalent. A list of such exchangers will be prepared 
and periodically revised by the NIH Director with advice of the RAC 
after appropriate notice and opportunity for public comment (see 
Section IV-C-1-b-(1)-(c), Major Actions). See Appendices A-I through A-
VI, Exemptions Under Section III-F-5--Sublists of Natural Exchangers, 
for a list of natural exchangers that are exempt from the NIH 
Guidelines.'' It is proposed to be amended to state: ``Section III-F-6. 
Those that consist entirely of DNA segments from different species that 
exchange DNA by known physiological processes, though one or more of 
the segments may be a synthetic equivalent. A list of such exchangers 
will be prepared and periodically revised by the NIH Director with 
advice of the RAC after appropriate notice and opportunity for public 
comment (see Section IV-C-1-b-(1)-(c), Major Actions). See Appendices 
A-I through A-VI, Exemptions Under Section III-F-6-Sublists of Natural 
Exchangers, for a list of natural exchangers that are exempt from the 
NIH Guidelines.'' Additionally, Appendix A1-through A-VI will be 
amended to reference Section III-F-6 rather than III-F-5.

Section III-F-7

    A new Section III-F-7 is proposed to be added. This proposed new 
Section takes an exemption that was previously included in the original 
definition (Section I-B) and moves it to this Section so that the 
definition of recombinant and nucleic acids found in the proposed 
Section I-B is solely a definition and does not include exemptions. The 
proposed exemption language has been simplified to make it clear that 
unmodified transposons used in research are not subject to the NIH

[[Page 9418]]

Guidelines even if derived from a recombinant or synthetic system. 
Section I-B: Genomic DNA molecules of plants and bacteria that have 
acquired a transposable element, even if the latter was donated from a 
recombinant vector no longer present, are not subject to the NIH 
Guidelines unless the transposon itself contains recombinant DNA. New 
Section III-F-7 is proposed to state:

    Section III-F-7. Genomic DNA molecules of plants and bacteria 
that have acquired a transposable element provided the transposable 
element does not contain any recombinant or synthetic DNA.

Section III-F-8

    The current Section III-F-6 is proposed to be renumbered to Section 
III-F-8 and amended. This section provides a mechanism for the NIH 
Director to expand the exemptions to molecules not covered elsewhere in 
Section III-F. Research that falls under Section III-F-8 would need to 
have been reviewed and approved by the NIH Director following advice 
from the RAC and notice in the Federal Register to provide an 
opportunity for public comment. Only research that has been deemed to 
not present, following this extensive review process, a significant 
risk to health or the environment would fall under this section.
    Current Section III-F-6 states: ``Those that do not present a 
significant risk to health or the environment (see Section IV-C-1-b-
(1)-(c), Major Actions), as determined by the NIH Director, with the 
advice of the RAC, and following appropriate notice and opportunity for 
public comment. See Appendix C, Exemptions under Section III-F-6 for 
other classes of experiments which are exempt from the NIH 
Guidelines.'' Section III-F-6 is proposed to be amended to state: 
``Section III-F-8. Those that do not present a significant risk to 
health or the environment (see Section IV-C-1-b-(1)-(c), Major 
Actions), as determined by the NIH Director, with the advice of the 
RAC, and following appropriate notice and opportunity for public 
comment. See Appendix C, Exemptions under Section III-F-8 for other 
classes of experiments which are exempt from the NIH Guidelines.'' 
Additionally Appendix A1- through A-VI will be amended to reference 
Section III-F-8 rather than III-F-6.

Section III-E-1. Experiments Involving the Formation of Recombinant DNA 
Molecules Containing No More Than Two-Thirds of the Genome of Any 
Eukaryotic Virus

    Experiments covered by Section III-E-1 can be initiated using 
Biosafety Level (BL) 1 containment simultaneously with Institutional 
Biosafety Committee notice. Section III-E-1 currently states: 
``Recombinant DNA molecules containing no more than two-thirds of the 
genome of any eukaryotic virus (all viruses from a single Family being 
considered identical [see Section V-J Footnotes and References of 
Sections I-IV ]) may be propagated and maintained in cells in tissue 
culture using BL1 containment. For such experiments, it must be 
demonstrated that the cells lack helper virus for the specific Families 
of defective viruses being used. If helper virus is present, procedures 
specified under Section III-D-3, Experiments Involving the Use of 
Infectious Animal or Plant DNA or RNA viruses or Defective Animal or 
Plant DNA or RNA viruses in the Presence of Helper Virus in Tissue 
Culture Systems, should be used. The DNA may contain fragments of the 
genome of viruses from more than one Family but each fragment shall be 
less than two-thirds of a genome.''
    This section applies to viral constructs containing less than \2/3\ 
of the genome of any virus (with all viruses from a single Family being 
considered as identical). However, concerns were raised that this level 
of oversight may not be adequate for research with potential synthetic 
biology agents derived from multiple segments of NA from a Family of 
viruses. In addition, some wild type viruses (e.g., herpes viruses) may 
be functional with less than \2/3\ of the genome present. Therefore, 
the decision was made to propose to change \2/3\ to one-half of the 
genome to reflect the current understanding of the biology of certain 
viruses. While the use of a quantitative measure to define properties 
of biological organisms is imperfect, the more conservative standard is 
consistent with Appendix C-1 Recombinant DNA in Tissue Culture which 
exempts from the NIH Guidelines recombinant DNA molecules from Risk 
Groups 1 and 2 that contain less than one-half of any eukaryotic viral 
genome. With this revision, experiments involving risk Group 3 and 4 
viruses with less than one-half of any eukaryotic viral genome can be 
initiated at BL1 containment simultaneously with IBC registration 
provided evidence is also submitted attesting that the preparation(s) 
are free of replication competent virus, which may be generated through 
homologous recombination with endogenous proviruses or the use of a 
helper virus. If revised as proposed, an investigator will be permitted 
to initiate an experiment simultaneously with registration, since the 
retention of a quantitative standard provides such clear guidance.
    Section III-E-1 is proposed to be amended to state: ``Recombinant 
and synthetic nucleic acid molecules containing no more than half of 
the genome of any one Risk Group 3 or 4 eukaryotic virus (all viruses 
from a single Family being considered identical [see Section V-J, 
Footnotes and References of Sections I-IV ]) may be propagated and 
maintained in cells in tissue culture using BL1 containment (as defined 
in Appendix G) provided there is evidence that the resulting nucleic 
acid in these cells are not capable of producing a replication 
competent nucleic acid. For such experiments, it must be demonstrated 
that the cells lack helper virus for the specific Families of defective 
viruses being used. If helper virus is present, procedures specified 
under Section III-D-3, Experiments Involving the Use of Infectious 
Animal or Plant DNA or RNA viruses or Defective Animal or Plant DNA or 
RNA viruses in the Presence of Helper Virus in Tissue Culture Systems 
should be used. The nucleic acids may contain fragments of the genome 
of viruses from more than one Family but each fragment shall be less 
than one-half of a genome.''

Section IV-A Policy

    Section IV-A concerns the roles and responsibilities of the local 
institutions and investigators in implementing the NIH Guidelines. It 
contains a general policy statement that is often evoked as the 
``spirit'' of the NIH Guidelines because it acknowledges the inability 
of the document to describe specifically all conceivable research or 
emerging techniques; however, it remains the responsibility of 
researchers and institutions to adhere to ``the intent of the NIH 
Guidelines as well as to their specifics.'' In order to emphasize that 
the NIH Guidelines are an evolving document which are expected to be 
modified to address new developments in research or scientific 
techniques, the following modifications are proposed to Section IV-A 
(Policy).
    Section IV-A currently states: ``The safe conduct of experiments 
involving recombinant DNA depends on the individual conducting such 
activities. The NIH Guidelines cannot anticipate every possible 
situation. Motivation and good judgment are the key essentials to 
protection of health and the environment. The NIH Guidelines are 
intended to assist the institution, Institutional Biosafety Committee, 
Biological Safety Officer, and the Principal Investigator in 
determining

[[Page 9419]]

safeguards that should be implemented. The NIH Guidelines will never be 
complete or final since all conceivable experiments involving 
recombinant DNA cannot be foreseen. Therefore, it is the responsibility 
of the institution and those associated with it to adhere to the intent 
of the NIH Guidelines as well as to their specifics. Each institution 
(and the Institutional Biosafety Committee acting on its behalf) is 
responsible for ensuring that all recombinant DNA research conducted at 
or sponsored by that institution is conducted in compliance with the 
NIH Guidelines. General recognition of institutional authority and 
responsibility properly establishes accountability for safe conduct of 
the research at the local level. The following roles and 
responsibilities constitute an administrative framework in which safety 
is an essential and integral part of research involving recombinant DNA 
molecules. Further clarifications and interpretations of roles and 
responsibilities will be issued by NIH as necessary.''
    Section IV-A is proposed to be amended to read: ``The safe conduct 
of experiments involving recombinant DNA depends on the individual 
conducting such activities. The NIH Guidelines cannot anticipate every 
possible situation. Motivation and good judgment are the key essentials 
to protection of health and the environment. The NIH Guidelines are 
intended to assist the institution, Institutional Biosafety Committee, 
Biological Safety Officer, and the Principal Investigator in 
determining safeguards that should be implemented. The NIH Guidelines 
will never be complete or final since all experiments involving 
recombinant and/or synthetic nucleic acids cannot be foreseen. The 
utilization of new genetic manipulation techniques may enable work 
previously done by recombinant means to be accomplished faster, more 
efficiently or at larger scale. These techniques have not yet yielded 
organisms that present safety concerns that fall outside the current 
risk assessment framework used for recombinant DNA research. 
Nonetheless, an appropriate risk assessment of experiments involving 
these techniques must be conducted taking into account the way these 
approaches may alter the risk assessment. In addition, as the field 
develops, new techniques and applications need to be monitored and 
assessed to determine whether revisions to the NIH Guidelines are 
needed. As new techniques develop, the NIH Guidelines should be 
periodically reviewed to determine whether and how such research should 
be explicitly addressed. It is the responsibility of the institution 
and those associated with it to adhere to the intent of the NIH 
Guidelines as well as to their specifics. Therefore, each institution 
(and the Institutional Biosafety Committee acting on its behalf) is 
responsible for ensuring that all recombinant and/or synthetic nucleic 
acids research conducted at or sponsored by that institution is 
conducted in compliance with the NIH Guidelines. General recognition of 
institutional authority and responsibility properly establishes 
accountability for safe conduct of the research at the local level. The 
following roles and responsibilities constitute an administrative 
framework in which safety is an essential and integral part of research 
involving recombinant and/or synthetic nucleic acid molecules. Further 
clarifications and interpretations of roles and responsibilities will 
be issued by NIH as necessary.''

Section II. Safety Considerations

    Currently, the risk assessment framework of the NIH Guidelines uses 
the risk group of the parent organism as a starting point for 
determining the necessary containment level. For example, genetic 
modifications using a Risk Group 3 organism (defined as agents that are 
associated with serious or lethal human disease for which preventive or 
therapeutic interventions may be available) would generally be carried 
out at BL3 but the containment level might be raised or lowered 
depending on the specific construct and the experimental manipulations. 
The RAC concluded that the current risk assessment framework under the 
NIH Guidelines is applicable to experiments with synthetic nucleic 
acids. However, additional language is proposed to provide further 
guidance for evaluating research utilizing the capabilities of 
synthetic biology, as use of these techniques may lead to the creation 
of complex organisms for which identification of a parent organism, the 
starting point of the existing recombinant DNA risk assessment, is more 
difficult. Risk assessment may also be complicated by the limitations 
in predicting function from sequence(s) or the synergistic effects from 
combining sequences from different sources in a novel context.
    Section II-A-3 (Comprehensive Risk Assessment) currently states:
    ``In deciding on the appropriate containment for an experiment, the 
initial risk assessment from Appendix B, Classification of Human 
Etiologic Agents on the Basis of Hazard, should be followed by a 
thorough consideration of the agent itself and how it is to be 
manipulated. Factors to be considered in determining the level of 
containment include agent factors such as: Virulence, pathogenicity, 
infectious dose, environmental stability, route of spread, 
communicability, operations, quantity, availability of vaccine or 
treatment, and gene product effects such as toxicity, physiological 
activity, and allergenicity. Any strain that is known to be more 
hazardous than the parent (wild-type) strain should be considered for 
handling at a higher containment level. Certain attenuated strains or 
strains that have been demonstrated to have irreversibly lost known 
virulence factors may qualify for a reduction of the containment level 
compared to the Risk Group assigned to the parent strain (see Section 
V-B, Footnotes and References of Sections I-IV).
    A final assessment of risk based on these considerations is then 
used to set the appropriate containment conditions for the experiment 
(see Section II-B, Containment). The containment level required may be 
equivalent to the Risk Group classification of the agent or it may be 
raised or lowered as a result of the above considerations. The 
Institutional Biosafety Committee must approve the risk assessment and 
the biosafety containment level for recombinant DNA experiments 
described in Sections III-A, Experiments that Require Institutional 
Biosafety Committee Approval, RAC Review, and NIH Director Approval 
Before Initiation; III-B, Experiments that Require NIH/OBA and 
Institutional Biosafety Committee Approval Before Initiation; III-C, 
Experiments that Require Institutional Biosafety Committee and 
Institutional Review Board Approvals and NIH/OBA Registration Before 
Initiation; III-D, Experiments that Require Institutional Biosafety 
Committee Approval Before Initiation.
    Careful consideration should be given to the types of manipulation 
planned for some higher Risk Group agents. For example, the RG2 dengue 
viruses may be cultured under the Biosafety Level 2 (BL2) containment 
(see Section II-B); however, when such agents are used for animal 
inoculation or transmission studies, a higher containment level is 
recommended. Similarly, RG3 agents such as Venezuelan equine 
encephalomyelitis and yellow fever viruses should be handled at a 
higher containment level for animal inoculation and transmission 
experiments.

[[Page 9420]]

    Individuals working with human immunodeficiency virus (HIV), 
hepatitis B virus (HBV) or other bloodborne pathogens should consult 
the applicable Occupational Safety and Health Administration 
regulation, 29 CFR 1910.1030, and OSHA publication 3127 (1996 revised). 
BL2 containment is recommended for activities involving all blood-
contaminated clinical specimens, body fluids, and tissues from all 
humans, or from HIV- or HBV-infected or inoculated laboratory animals. 
Activities such as the production of research-laboratory scale 
quantities of HIV or other bloodborne pathogens, manipulating 
concentrated virus preparations, or conducting procedures that may 
produce droplets or aerosols, are performed in a BL2 facility using the 
additional practices and containment equipment recommended for BL3. 
Activities involving industrial scale volumes or preparations of 
concentrated HIV are conducted in a BL3 facility, or BL3 Large Scale if 
appropriate, using BL3 practices and containment equipment.
    Exotic plant pathogens and animal pathogens of domestic livestock 
and poultry are restricted and may require special laboratory design, 
operation and containment features not addressed in Biosafety in 
Microbiological and Biomedical Laboratories (see Section V-C, Footnotes 
and References of Sections I through IV). For information regarding the 
importation, possession, or use of these agents see Section V-G and V-
H, Footnotes and References of Sections I through IV.''
    The first three paragraphs are proposed to be amended by inserting 
the following two new paragraphs between the current first and second 
paragraphs of Section II-A-3:
    ``In deciding on the appropriate containment for an experiment, the 
initial risk assessment from Appendix B, Classification of Human 
Etiologic Agents on the Basis of Hazard, should be followed by a 
thorough consideration of the agent itself and how it is to be 
manipulated. Factors to be considered in determining the level of 
containment include agent factors such as: virulence, pathogenicity, 
infectious dose, environmental stability, route of spread, 
communicability, operations, quantity, availability of vaccine or 
treatment, and gene product effects such as toxicity, physiological 
activity, and allergenicity. Any strain that is known to be more 
hazardous than the parent (wild-type) strain should be considered for 
handling at a higher containment level. Certain attenuated strains or 
strains that have been demonstrated to have irreversibly lost known 
virulence factors may qualify for a reduction of the containment level 
compared to the Risk Group assigned to the parent strain (see Section 
V-B, Footnotes and References of Sections I-IV).
    While the initial risk assessment is based on the identification of 
the Risk Group of the parent agent, as technology moves forward, it may 
be possible to develop a chimera in which the parent agent may not be 
obvious. In such cases, the risk assessment should involve at least two 
levels of analysis. The first involves a consideration of the Risk 
Groups of the source(s) of the sequences and the second an analysis of 
the functional attributes of these sequences (e.g., sequence associated 
with virulence factors, transmissibility, etc.). It may be prudent to 
first consider the highest risk group classification of any agent 
sequence included in the chimera. Other factors to be considered 
include the percentage of the genome contributed by each of multiple 
parent agents, and the predicted function or intended purpose of each 
contributing sequence. The initial assumption should be that all 
sequences will function as predicted in the original host context.
    The IBC must also be cognizant that the combination of certain 
sequences may result in an organism whose risk profile could be higher 
than that of the contributing organisms or sequences. The synergistic 
function of these sequences may be one of the key attributes to 
consider in deciding whether a higher containment level is warranted. A 
new biosafety risk may occur with a chimera formed through combination 
of sequences from a number of organisms or due to the synergistic 
effect of combining transgenes that results in a new phenotype.
    A final assessment of risk based on these considerations is then 
used to set the appropriate containment conditions for the experiment 
(see Section II-B, Containment). The containment level required may be 
equivalent to the Risk Group classification of the agent or it may be 
raised or lowered as a result of the above considerations. The 
Institutional Biosafety Committee must approve the risk assessment and 
the biosafety containment level for recombinant DNA experiments 
described in Sections III-A, Experiments that Require Institutional 
Biosafety Committee Approval, RAC Review, and NIH Director Approval 
Before Initiation; III-B, Experiments that Require NIH/OBA and 
Institutional Biosafety Committee Approval Before Initiation; III-C, 
Experiments that Require Institutional Biosafety Committee and 
Institutional Review Board Approvals and NIH/OBA Registration Before 
Initiation; III-D, Experiments that Require Institutional Biosafety 
Committee Approval Before Initiation.''

Section III-A-1. Major Actions Under the NIH Guidelines

    In reviewing the biosafety risks for synthetic genomics and biology 
and the different levels of review for each experiment, the RAC 
determined that it is important to also evaluate the class of 
experiments that require the highest level of review. In doing so, it 
was determined that the language for Section III-A-1 of the NIH 
Guidelines (research involving the introduction of drug resistance) 
does not clearly articulate the types of experiments that warrant this 
heightened review. Moreover, given the change in the use of antibiotics 
and the public health problems raised by the emergence of multi-drug 
resistant bacterial strains, clearly defining those experiments that 
require heightened review is a public health priority.
    Section III-A-1-a currently states: ``The deliberate transfer of a 
drug resistance trait to microorganisms that are not known to acquire 
the trait naturally (see Section V-B, Footnotes and References of 
Sections I-IV), if such acquisition could compromise the use of the 
drug to control disease agents in humans, veterinary medicine, or 
agriculture, will be reviewed by RAC.''
    Section III-A-1-a is proposed to be amended to: ``The deliberate 
transfer of a drug resistance trait to microorganisms, if such 
acquisition could compromise the ability to treat or manage disease 
agents in human and veterinary medicine, or agriculture will be 
reviewed by RAC (see Section V-B, Footnotes and References of Sections 
I-IV). Even if an alternative drug or drugs exist for the control or 
management of disease, it is important to consider how the research 
might affect the ability to control infection in certain groups or 
subgroups by putting them at risk of developing an infection by such 
microorganism for which alternative treatments may not be available. 
Affected groups or subgroups may include, but are not limited to: 
children, pregnant women, and people who are allergic to effective 
alternative treatments, immunocompromised or living in countries where 
the alternative effective treatment is not readily available.''
    The deletion of the phrase ``that are not known to acquire the 
trait naturally'' is proposed because the mechanism of acquisition 
should not be relevant as to whether these experiments pose potential 
public health risk and as such

[[Page 9421]]

should receive a higher level of review. Moreover, all forms of 
antibiotic resistance occur naturally and the use of antibiotics 
creates selective pressure for resistant strains. The additional text 
recognizes that a drug may remain useful for control of a disease 
despite some percentage of the population of microorganisms having 
developed resistance. It is also intended to clarify that even if a 
particular drug is not considered the ``drug of choice'' to treat a 
disease, elimination of such a drug as a treatment option may still 
raise important clinical and public health considerations for certain 
subpopulations.
    Once a Section III-A-I-a experiment is reviewed by the RAC and 
approved by the NIH Director, equivalent experiments may not need to 
follow the same approval process to determine the appropriate biosafety 
containment level for the work. A new section under III-B (Experiments 
that Require NIH/OBA and IBC Approval before Initiation) is proposed to 
be added to allow NIH/OBA the discretion to review and approve certain 
experiments if NIH/OBA determines that an equivalent experiment has 
already been approved by the NIH Director and there are no substantial 
changes to the proposed experiment or new information that would raise 
new biosafety or public health issues. Under this proposal, 
Investigators will be notified by NIH/OBA if such a determination has 
been made.
    The following addition is proposed to be added to Section III-B of 
the NIH Guidelines to allow NIH/OBA the discretion to review and 
approve certain experiments that have been previously reviewed by the 
RAC and approved by the NIH Director as a Major Action.
    ``Section III-B-2, Experiments that have been approved (under 
Section III-A-1-a) as Major Actions under the NIH Guidelines
    Upon receipt and review of an application from the investigator, 
NIH/OBA may determine that a proposed experiment is equivalent to an 
experiment that has previously been approved by the NIH Director as a 
Major Action, including experiments approved prior to implementation of 
these changes. An experiment will only be considered equivalent if, as 
determined by NIH/OBA, there are no substantive differences in 
experimental design or pertinent information has not emerged since 
submission of the initial III-A-1 experiment that would impact on the 
biosafety or public health risks for the proposed experiments. If such 
a determination is made by NIH/OBA, these experiments will not require 
review and approval under Section III-A.''

    Dated: February 26, 2009.
Amy P. Patterson,
Acting Director, Office of Science Policy, National Institutes of 
Health.
[FR Doc. E9-4618 Filed 3-3-09; 8:45 am]
BILLING CODE 4140-01-P