[Federal Register Volume 77, Number 172 (Wednesday, September 5, 2012)]
[Notices]
[Pages 54584-54597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21849]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

National Institutes of Health


Final Action Under the NIH Guidelines for Research Involving 
Recombinant DNA Molecules (NIH Guidelines)

SUMMARY: On March 4, 2009, the National Institutes of Health (NIH) 
Office of Biotechnology Activities, Office of Science Policy (NIH/OBA) 
published a proposal in the Federal Register (74 FR 9411) to revise the 
NIH Guidelines in two regards. The first was to address biosafety 
considerations for research with synthetic nucleic acids. The proposal 
modified the scope of the NIH Guidelines specifically to cover certain 
basic and clinical research with nucleic acid molecules created solely 
by synthetic means. The second proposed revision was to modify the 
criteria for determining whether an experiment to introduce drug 
resistance into a microorganism must be reviewed by the Recombinant DNA 
Advisory Committee (RAC) and approved by the NIH Director (as a Major 
Action under Section III-A-1-a of the NIH Guidelines). Comments 
submitted were discussed at the ``NIH Public Consultation on Proposed 
Changes to the NIH Guidelines for Synthetic Nucleic Acids'' on June 23, 
2009 (http://oba.od.nih.gov/rdna_rac/rac_pub_con.html''.
    This notice sets forth final changes to the NIH Guidelines 
regarding those two proposals. The scope of the NIH Guidelines is being 
modified to cover certain classes of basic and clinical research with 
synthetic nucleic acids while exempting others. As discussed herein, 
the majority of research with synthetic nucleic acids that are not 
designed to replicate does not raise significant biosafety concerns 
that warrant oversight under the NIH Guidelines. Because of the 
modification of the scope of the NIH Guidelines, the title of the NIH 
Guidelines will be revised from NIH Guidelines for Research Involving 
Recombinant DNA Molecules to NIH Guidelines for Research Involving 
Recombinant or Synthetic Nucleic Acids Molecules.
    These changes also clarify the criteria for determining whether an 
experiment to introduce drug resistance into a microorganism raises 
sufficient public health issues to warrant the experiment being 
reviewed by the RAC and approved by the NIH Director under Section III-
A-1-a of the NIH Guidelines. While the current criteria for determining 
whether an experiment requires review under Section III-A-1-a are being 
retained, additional language is being added regarding the assessment 
of whether a drug is therapeutically useful. In addition, NIH/OBA has 
clarified that Institutional Biosafety Committees (IBCs) can consult 
with NIH/OBA regarding a specific experiment that does not meet the 
criteria for review under Section III-A-1-a but nonetheless raises 
important public health issues. Finally, a section is added to give 
NIH/OBA the authority

[[Page 54585]]

to approve new experiments utilizing the same drug resistance trait and 
organism used in an experiment previously reviewed by the RAC and 
approved by the NIH Director.
    In March 2009, NIH/OBA also proposed changes to Section III-E-1 of 
the NIH Guidelines, which sets containment for recombinant experiments 
involving two-thirds or less of the genome of certain viruses in tissue 
culture. In response to the comments on the proposed changes to Section 
III-E-1, NIH/OBA revised the proposal and published a notice for 
comment on April 22, 2010 (75 FR 21008). Comments received in response 
to this notice were discussed at the June 16, 2010, public meeting of 
the RAC and additional discussions of subsequent revisions to the 
proposed changes took place at the June 7, 2011, meeting of the RAC. As 
these changes are not yet finalized, NIH/OBA will move forward with the 
other changes outlined below pending finalization of changes to Section 
III-E-1.

DATES: These changes are effective March 5, 2013. All ongoing and 
proposed experiments that will be newly subject to these amended NIH 
Guidelines will need to be registered by the Principal Investigator 
with the IBC by the effective date listed above. The six-month time 
frame was deemed sufficient to allow institutions to develop new 
procedures, as well as outreach and training for investigators whose 
research will now be subject to the NIH Guidelines. While NIH/OBA does 
not anticipate a significant increase in experiments subject to the NIH 
Guidelines, it is important that institutions be afforded ample time to 
implement effectively these changes.

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

SUPPLEMENTARY INFORMATION: As discussed in more detail in the March 
2009 Federal Register notice, 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 the potential to accelerate scientific discovery, yield 
new therapeutics for disease, and facilitate the modification of 
existing organisms or the creation of new organisms, including 
pathogens.
    The impetus for these changes to the NIH Guidelines is two-fold: 
(1) Recognition that appropriate biosafety containment of an agent is 
critical regardless of the technology used to generate that agent 
(i.e., recombinant DNA or synthetic biology), and (2) a recommendation 
from the National Science Advisory Board for Biosecurity (NSABB). The 
NSABB was formed to advise the U.S. Government on strategies for 
minimizing the potential for misuse of information, products, and 
technologies from life sciences research, taking into consideration 
both national security concerns and the needs of the research 
community. In 2006, the NSABB published a report titled ``Addressing 
Biosecurity Concerns Related to the Synthesis of Select Agents'' 
(available at http://oba.od.nih.gov/biosecurity/pdf/Final_NSABB_Report_on_Synthetic_Genomics.pdf).
    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 not necessarily biologists and, 
therefore, may not have been trained in biosafety. These researchers 
may be uncertain about how to conduct a risk assessment, as required 
for research currently subject to the NIH Guidelines, and when to have 
their work undergo review by an IBC. The NSABB report recommended that 
the U.S. Government ``examine the language and implementation of 
current biosafety guidance 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 recommendation on the need for examination of existing 
biosafety guidance was accepted by the U.S. Government with the 
understanding that implementation would be through examination and 
modification of the NIH Guidelines, as appropriate. The changes to the 
NIH Guidelines would then be cross-referenced in the joint publication 
by the U.S. Centers for Disease Control and Prevention and NIH titled: 
Biosafety in Microbiological and Biomedical Laboratories (BMBL) 
(available at http://www.cdc.gov/biosafety/publications/bmbl5/index.htm).
    As stated in the March 2009 Federal Register notice, these changes 
were developed in consultation with the RAC. A total of 50 comments 
were received in response to the March 2009 Federal Register notice 
from individuals, academic and government researchers, private 
pharmaceutical companies and trade organizations that represent the 
biosafety community, researchers in gene and cell therapy, and 
microbiologists. In addition, a day-long public discussion of the 
proposed changes was held on June 23, 2009, in Arlington, Virginia. The 
agenda and webcast of that meeting are available at the following URL: 
http://oba.od.nih.gov/rdna_rac/rac_pub_con.html.
    The NIH Guidelines currently apply to all recombinant DNA research 
that is conducted at or sponsored by institutions that receive NIH 
funding for any research involving recombinant DNA. In addition, some 
federal agencies, including the U.S. Departments of Energy, Veterans 
Affairs, and 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 
apply to all Government-funded and privately funded research, it may be 
used as a tool for the entire research community to understand the 
potential biosafety implications of this type of research.

Summary of Comments

    All of the comments submitted in response to the Federal Register 
notice are available for review on the NIH/OBA Web site at: http://oba.od.nih.gov/rdna_rac/rac_pub_con.html. The public comments 
generally fell into two groups: (1) Comments on the proposed changes 
regarding research with synthetic nucleic acids and (2) comments on the 
proposed changes to Section III-A-1-a (experiments involving the 
deliberate transfer of a drug resistance trait into microorganisms). 
Overall, the comments favored modifying the scope of the NIH Guidelines 
to include research with synthetic nucleic acids. As one commenter 
noted, ``With the ability to chemically synthesize entire genes or 
substantial portions of viral genomes, such synthetic entities would 
have the potential to (1) Express proteins, (2) replicate in cells, and 
(3) integrate into the host genome. As such, these entities warrant the 
same scrutiny as traditional recombinant DNA with respect to studies 
being conducted in [a] research laboratory and when being considered 
for use in human subjects, and thus should be subject to NIH/OBA 
registration and RAC review.'' However, there were concerns that the 
proposed amendments would lead to oversight of the synthesis of small 
nucleic acid primers used in basic research. This was a 
misinterpretation of the proposed

[[Page 54586]]

changes; research with nucleic acids that are not in cells or organisms 
is not subject to the NIH Guidelines and the proposed exemption for 
non-replicating synthetic nucleic acids, discussed herein, would also 
preclude these constructs from being subject to the NIH Guidelines.
    Most of the comments regarding synthetic nucleic acids and the NIH 
Guidelines focused on whether certain synthetic nucleic acids used in 
human clinical trials should also be exempt from the NIH Guidelines and 
in particular from the requirements for submission and review of human 
gene transfer trials (as outlined in Appendix M of the NIH Guidelines). 
These comments directly addressed a question posed in the March 2009 
Federal Register: ``For human gene transfer research, are there classes 
of non-replicating, synthetic molecules that should be exempt due to 
lower potential risk (e.g. antisense RNA, RNAi)? If so, what criteria 
should be applied to determine such classes?''
    Many of the respondents to this question were involved in 
developing such products to be used as therapeutics or represent 
companies and investigators involved in such research. As discussed in 
more detail herein, the respondents argued that small non-replicating 
synthetic nucleic acids used as therapeutics are more akin to small 
molecule drugs than traditional gene transfer agents. A session at the 
June 23, 2009, public consultation focused on whether certain non-
replicating synthetic nucleic acids used in human clinical trials 
should be exempted from the NIH Guidelines due to characteristics that 
are distinct from recombinant molecules as currently defined in the NIH 
Guidelines.
    The second set of comments focused on the proposed changes to 
Section III-A-1-a, which addresses certain experiments that involve the 
introduction of drug resistance into microorganisms. The comments 
uniformly disagreed with the proposed changes stating that the new 
proposed criteria were too broad and would lead to federal review of 
experiments that did not raise public health issues warranting 
heightened scrutiny. Moreover, they stated that there is no evidence 
that the current language had failed to serve the public health and 
therefore the changes were not warranted given the potential problems 
raised by expanding such review. As discussed herein, the III-A-1-a 
language in the current NIH Guidelines (October 2011 version) will be 
retained.
    The following paragraphs review (1) The specific comments received 
on each section of the NIH Guidelines, both the written comments and 
those received at public meeting; (2) NIH/OBA's response to those 
comments; and (3) the final changes to the NIH Guidelines.

Amendments to the NIH Guidelines

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

    Title of the NIH GuidelinesSection I. Scope of the NIH 
Guidelines
    Section I-B. Definition of Recombinant DNA
    Section I-C. General Applicability
    Section III-C. Experiments Involving the Deliberate Transfer of 
Recombinant DNA,or DNA or RNA Derived from Recombinant DNA, into One 
or More Human Research Participants
    Section III-F. Exempt Experiments
    Section IV-A. Policy
    Section II-A-3. Comprehensive Risk Assessment
    As discussed herein, the NIH Guidelines will no longer be limited 
to oversight of research with recombinant nucleic acid molecules but 
will also address research with certain synthetic nucleic acids. 
Throughout the NIH Guidelines, the term ``recombinant DNA molecules'' 
will be replaced with ``recombinant or synthetic nucleic acids,'' which 
will encompass research with either recombinant or synthetic or both 
types of nucleic acids. This change will not be made to the name of the 
Recombinant DNA Advisory Committee, although the Committee will provide 
advice on both recombinant and synthetic nucleic acid research.
    In addition to the changes being made specifically to address 
research with synthetic nucleic acids, the following sections are also 
being revised:

    Section III-A-1. Major Actions under the NIH Guidelines
    Section III-B. Experiments that Require NIH/OBA and 
Institutional Biosafety Committee Approval before Initiation

Title of the NIH Guidelines

    The title of the document will be changed from the NIH Guidelines 
for Research Involving Recombinant DNA Molecules to the NIH Guidelines 
for Research Involving Recombinant or Synthetic Nucleic Acid Molecules. 
NIH received no comments regarding the proposed change to the title of 
the NIH Guidelines.

Section I. Scope of the NIH Guidelines

    To clarify the applicability of the NIH Guidelines to research 
involving synthetic nucleic acids, modifications were proposed to 
Section I, Scope of the NIH Guidelines. Section I-A (Purpose) of the 
NIH Guidelines previously stated:

    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 was proposed to be changed to:

    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, and (iii) organisms and viruses containing such 
molecules.

    NIH/OBA received one comment regarding the use of the term 
``constructing'' in reference to synthetic nucleic acids. The concern 
was that the NIH Guidelines would govern the chemical synthesis of 
nucleic acids. However, this language was not a revision to the 
original scope of the NIH Guidelines. While the scope of the NIH 
Guidelines has always referred to ``constructing'' or construction of 
recombinant nucleic acids, the NIH Guidelines then exempts research 
with nucleic acids that are not contained in cells, organisms, or 
viruses. Therefore, the chemical synthesis of nucleic acids not placed 
in cells, organisms, or viruses would likewise be exempt; the NIH 
Guidelines will only apply once synthetic nucleic acids are placed in a 
biological system.
    NIH/OBA also received comments requesting a definition of the term 
``functional equivalents of nucleotides.'' This term was intended to 
capture synthetic nucleic acids that contain nucleotides that have been 
chemically modified and do not have the same chemical structure as the 
nucleotides in naturally occurring nucleic acids (see, for example, S. 
Benner, Redesigning Genetics. Science. 306, 625-626 (2004)). For 
clarity, the term ``functional equivalents'' has been changed to 
``nucleotides that are chemically or otherwise modified but can base 
pair with naturally occurring nucleic acid molecules.''
    Thus, the amended Section 1-A Purpose will state:

    Section 1-A. Purpose
    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 
that are chemically or otherwise modified but can base pair with 
naturally occurring nucleic acid molecules, and (iii) cells, 
organisms, and viruses containing such molecules.


[[Page 54587]]


    As a result of these modifications, the NIH Guidelines will apply 
(unless otherwise exempted by other sections of the NIH Guidelines, 
e.g. III-F) to both recombinant and synthetically derived nucleic 
acids, including those that are chemically or otherwise modified 
analogs of nucleotides (e.g. , morpholinos).

Section I-B. Definition of Recombinant Nucleic Acids

    The current definition of a recombinant DNA molecule in the NIH 
Guidelines (Section I-B) only explicitly refers to DNA and requires 
that segments be joined, which may not need to occur in research with 
synthetic nucleic acids. The revision to this section largely retains 
the definition of recombinant DNA but also adds a definition for 
synthetic nucleic acids that are created without joining segments of 
nucleic acids.
    Section I-B also contains a paragraph that 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.


    A second paragraph in the definition 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 final changes eliminate the first paragraph above, referring to 
synthetic DNA segments, because the NIH Guidelines now specifically 
includes an exemption for certain low-risk synthetic constructs (see 
III-F-1). For consistency, the second paragraph on transposons was 
moved to the portion of the NIH Guidelines that covers exemptions 
(Section III-F). The NIH received no comments on eliminating the first 
paragraph and moving the second paragraph; therefore these changes are 
being implemented.
    With respect to the definition of recombinant and synthetic nucleic 
acids, NIH/OBA received several comments with suggestions to use a 
single definition for recombinant and synthetic nucleic acids. NIH/OBA 
considered these proposals carefully but decided instead to largely 
retain the original definition of recombinant DNA, with clarification 
that it applies to both DNA and RNA and to add a new definition of 
synthetic nucleic acids. This was done because the definition of 
recombinant DNA will not change with this revision to the NIH 
Guidelines. As in the Scope section, the modification to the language 
``functional equivalent'' will be included in the definition as well.
    Section I-B is changed as follows:

    Section I-B. Definition of Recombinant and Synthetic Nucleic 
Acid Molecules:
    In the context of the NIH Guidelines, recombinant and synthetic 
nucleic acids are defined as:
    (i) molecules that a) are constructed by joining nucleic acid 
molecules and b) can replicate in a living cell, i.e. , recombinant 
nucleic acids;
    (ii) nucleic acid molecules that are chemically or by other 
means synthesized or amplified, including those that are chemically 
or otherwise modified but can base pair with naturally occurring 
nucleic acid molecules, i.e. , synthetic nucleic acids; or
    (iii) molecules that result from the replication of those 
described in (i) or (ii) above.

Section I-C. General Applicability

    In the March 2009 Federal Register notice, NIH/OBA stated that it 
would change, throughout the NIH Guidelines, as appropriate, the term 
``recombinant DNA molecules'' to ``recombinant and synthetic nucleic 
acid molecules.'' NIH/OBA received a comment that this substitution 
would imply that the NIH Guidelines only apply to research that uses 
synthetic and recombinant nucleic acids together, not just recombinant 
nucleic acid molecules or synthetic nucleic acid molecules alone. NIH/
OBA agrees with the comment on the original proposed language and 
instead will replace, where appropriate recombinant DNA with 
``recombinant or synthetic nucleic acid molecules'' to specify that the 
section applies to research with recombinant or synthetic nucleic acids 
or both. Section 1-C-1 currently states:

Section I-C. General Applicability

    Section I-C-1. The NIH Guidelines are applicable to:
    Section I-C-1-a. All recombinant DNA research within the United 
States (U.S.) or its territories that is within the category of 
research described in either Section I-C-1-a-(1) or Section I-C-1-a-
(2).
    Section I-C-1-a-(1). Research that is conducted at or sponsored 
by an institution that receives any support for recombinant DNA 
research from NIH, including research performed directly by NIH. An 
individual who receives support for research involving recombinant 
DNA must be associated with or sponsored by an institution that 
assumes the responsibilities assigned in the NIH Guidelines.
    Section I-C-1-a-(2). Research that involves testing in humans of 
materials containing recombinant DNA developed with NIH funds, if 
the institution that developed those materials sponsors or 
participates in those projects. Participation includes research 
collaboration or contractual agreements, not mere provision of 
research materials.
    Section I-C-1-b. All recombinant DNA research performed abroad 
that is within the category of research described in either Section 
I-C-1-b-(1) or Section I-C-1-b-(2).
    Section I-C-1-b-(1). Research supported by NIH funds.
    Section I-C-1-b-(2). Research that involves testing in humans of 
materials containing recombinant DNA developed with NIH funds, if 
the institution that developed those materials sponsors or 
participates in those projects. Participation includes research 
collaboration or contractual agreements, not mere provision of 
research materials.

    Section I-C will now read:

Section I-C. General Applicability

    Section I-C-1. The NIH Guidelines are applicable to:
    Section I-C-1-a. All recombinant or synthetic nucleic acid 
research within the United States (U.S.) or its territories that is 
within the category of research described in either Section I-C-1-a-
(1) or Section I-C-1-a-(2).
    Section I-C-1-a-(1). Research that is conducted at or sponsored 
by an institution that receives any support for recombinant or 
synthetic nucleic acid research from NIH, including research 
performed directly by NIH. An individual who receives support for 
research involving recombinant or synthetic nucleic acids must be 
associated with or sponsored by an institution that assumes the 
responsibilities assigned in the NIH Guidelines.
    Section I-C-1-a-(2). Research that involves testing in humans of 
materials containing recombinant or synthetic nucleic acids 
developed with NIH funds, if the institution that developed those 
materials sponsors or participates in those projects. Participation 
includes research collaboration or contractual agreements, not mere 
provision of research materials.
    Section I-C-1-b. All recombinant or synthetic nucleic acid 
research performed abroad that is within the category of research 
described in either Section I-C-1-b-(1) or Section I-C-1-b-(2).
    Section I-C-1-b-(1). Research supported by NIH funds.
    Section I-C-1-b-(2). Research that involves testing in humans of 
materials containing recombinant or synthetic nucleic acids 
developed with NIH funds, if the institution that developed those 
materials sponsors or participates in those projects. Participation 
includes research collaboration or contractual agreements, not mere 
provision of research materials.

[[Page 54588]]

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

    In March 2009, NIH/OBA proposed the following change to the 
definition of human gene transfer:

    For an experiment involving the deliberate transfer of 
recombinant and/or synthetic nucleic acids into one or more 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).

    NIH/OBA had proposed exempting from the NIH Guidelines non-clinical 
research with certain synthetic nucleic acids but did not propose to 
extend that exemption to the use of these constructs in a clinical 
setting. NIH/OBA noted that many gene transfer trials that are 
currently subject to the NIH Guidelines use non-replicating recombinant 
molecules because they are derived through recombinant technology which 
involves replication. NIH/OBA proposed that there are shared safety 
issues raised by clinical protocols that use synthetic non-replicating 
nucleic acids and those that use non-replicating recombinant vectors.
    The proposal to exempt basic research with non-replicating 
synthetic nucleic acids but not to extend that exemption to human gene 
transfer research was based on the differences in the potential health 
risk from inadvertent exposure during basic or preclinical work versus 
intentional exposure in a clinical setting. The doses and routes of 
administration used in human gene transfer generally increase the 
safety risks as compared to exposures that may occur in a basic 
research setting. Moreover, the clinical safety 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, immunological responses, and potential epigenetic changes. 
Human gene transfer also raises scientific, medical, social, and 
ethical considerations that warrant special attention and public 
discussion.
    NIH/OBA received a number of comments from industry, including 
several comments from the Oligonucleotide Safety Working Group (OSWG), 
which represents 70 pharmaceutical and regulatory professionals 
involved in the clinical development of oligonucleotide-based 
therapies. The OSWG stated that synthetic nucleic acid oligonucleotides 
that are less than 100 nucleotides and are not delivered in a bacterial 
or viral vector are more analogous to small molecule drugs than to the 
agents currently used in human gene transfer. They noted that these 
constructs can be distinguished from the recombinant agents currently 
used in human gene transfer by their inability to integrate into the 
genome or replicate in cells, their lack of a transgene that can be 
transcribed into RNA or translated into a protein, and their transient 
nature, i.e., they are degraded within days. They recognized that the 
review of gene transfer protocols by the RAC is useful to address such 
risks in gene transfer, but they did not believe that review should be 
extended to these constructs merely because they are synthetic nucleic 
acids. They noted that no significant safety issues have arisen in the 
ongoing Phase I and Phase II clinical trials using short-interfering 
RNA oligonucleotides (siRNAs). In addition to these trials, there is 
significant interest in developing clinical applications directed at 
microRNAs (miRNAs). For recent reviews of the field see K. Tiemann, J. 
Rossi, RNAi-based therapeutics-current status, challenges and 
prospects. EMBO Mol. Med. 1,142-151 (2009), and D. Grimm, M. A. Kay, 
Therapeutic application of RNAi: is mRNA targeting finally ready for 
prime time. The Journal of Clinical Investigation. 117(12), 3633-3641 
(2007).
    While this clinical data is reassuring, several preclinical 
investigations raised important questions regarding the current 
understanding about the mechanisms underlying the clinical action of 
these constructs. For example, clinical trials using a siRNA against 
vascular endothelial growth factor-A (VEGFA) or its receptor (VEGFR1) 
in patients with blinding choroidal neovascularization (CNV) from age-
related macular degeneration have demonstrated promising results. The 
hypothesis is that the siRNAs that are specific for VEGFA or its 
receptor are responsible for the clinical responses seen. In 2008, M.E. 
Kleinman, et al. found that a siRNA that did not specifically target 
VEGFA or VEGFR1 could also suppress CNV in mice through an immune 
response generated through toll-like receptors and induction of 
interferon-gamma and interleukin-12 (see M.E., Kleinman, et al., 
Sequence- and target-independent angiogenesis suppression by siRNA via 
TLR3. Nature. 452, 591-598 (2008)). In another study, investigators 
developed anti-macrophage inhibitory factor (MIF) siRNAs designed to 
block MIF expression in mammary adenocarcinoma cells (MCF-7). MIF is a 
``pleiotropic cytokine with well described roles in cell proliferation, 
tumorigenesis and angiogenesis'' (M.E. Armstrong, et al. , Small 
Interfering RNAs Induce Macrophage Migration Inhibitory Factor 
Production and Proliferation in Breast Cancer Cells via a Double 
Stranded RNA-Dependent Protein Kinase-Dependent Mechanism. J. Imm.180, 
7125-7133 (2008)). MIF has been shown to exert its actions through 
activation of CD44 and enhanced CD44 activation has been shown to 
promote breast cancer cell invasion. Unexpectedly, when these anti-MIF 
siRNAs were delivered to MCF-7 cells, the result was increased MIF 
production and an increase in proliferation of these cells.
    In addition to questions regarding the mechanisms of action and 
potential off target effects raised by these publications, the RAC 
discussed whether administration of these synthetic RNAs could 
potentially lead to long-term gene silencing and phenotypic changes. As 
stated by the OSWG in their comments, one of the reasons for the RAC 
oversight of recombinant research is to assess the potential for 
alteration of a research participant's DNA, which could have unknown 
and unintended consequences. Recent research indicates that siRNA and 
miRNAs may be involved in long-term gene silencing (A. Verdel, et al., 
Common themes in siRNA-mediated epigenetic silencing pathways. Int. J. 
Dev. Biol. 53, 245-257 (2009); D. H. Kim, et al. , MicroRNA-directed 
transcriptional gene silencing in mammalian cells. PNAS. 105(42), 
16230-16235 (2008)). The implications of these preliminary findings and 
whether such effects on genes are fundamentally different than those 
exerted by certain small molecules, for example histone deacetylation 
inhibitors, remains an open question: It has been shown that histone 
deacetylation can silence genes through chromatin modification and 
deacetylation of the chromatin histone protein. Histone deacetylase 
inhibitors are in development as potential cancer therapeutics (see 
e.g. , A.A Lane, B.A. Chabner, Histone deacetylase inhibitors in cancer 
therapy. J. Clin. Oncol. 27(32), 5459-68 (2009)).
    After considering the comments by the OSWG and other interested 
stakeholders, as well as the available literature, the RAC initially 
recommended that NIH/OBA consider an exemption for certain well 
characterized synthetic oligonucleotides, such as synthetic DNA

[[Page 54589]]

oligonucleotides that have been in clinical development for a number of 
years and whose mechanism of action is well understood. The RAC had 
reservations regarding extending that exemption to all synthetic RNA 
oligonucleotides because of the emerging literature that raised 
questions regarding our understanding of the potentially complex 
biological pathways being targeted. Indeed certain pathways are highly 
conserved across species and individual miRNAs have been shown to 
suppress the production of hundreds of proteins (D. Baek, et al. The 
impact of microRNAs on protein output. Nature. 455, 64-71(2008)). 
Additionally, the RAC considered that review of clinical protocols that 
administered RNA oligonucleotides without a vector would inform and 
enhance the review of similar protocols that use vectors (e.g. , short 
hairpin RNA (shRNA) expressed from a plasmid) and also inform the field 
and promote the exchange of data that could enhance its development. 
The RAC noted that this review might only be for several years until 
more data were developed.
    The RAC, however, continued to reflect upon the data and considered 
additional stakeholder input. Further discussions were held with 
leading experts on RNAi, including Noble Prize laureates Dr. Phillip 
Sharp and Dr. Craig Mello. The RAC carefully considered the differences 
between synthetic nucleic acids that are not delivered in vectors and 
those delivered in bacterial or viral vectors, taking into account 
their inability to replicate, integrate, or be transcribed or 
translated. Finally, given the uncertain significance of preclinical 
data in the absence of adverse effects in the ongoing clinical trials, 
the RAC concluded that oversight is not warranted at this time. NIH/OBA 
concurs with this assessment, and the NIH Guidelines will only apply to 
recombinant constructs that are currently covered by the NIH Guidelines 
and those synthetic constructs that are equivalent to their recombinant 
counterparts, i.e. synthetic investigational agents that share the same 
characteristics as recombinant gene transfer constructs. However, in 
light of some unresolved outstanding questions regarding the mechanisms 
of actions of synthetic nucleic acids used clinically, including the 
potential for epigenetic changes, the RAC recommended NIH/OBA convene a 
meeting to further explore these questions. NIH/OBA hosted this meeting 
on December 15-16, 2011. (The agenda and slide presentations are 
available at: http://oba.od.nih.gov/rdna/rdna_symposia.html.)
    Therefore, Section III-C-1 will be revised as follows:

    Section III-C-1. Experiments Involving the Deliberate Transfer 
of Recombinant or Synthetic Nucleic Acid Molecules, or DNA or RNA 
Derived from Recombinant or Synthetic Nucleic Acid Molecules, into 
One or More Human Research Participants
    Human gene transfer is the deliberate transfer into human 
research participants of either:
    1. Recombinant nucleic acid molecules, or DNA or RNA derived 
from recombinant nucleic acid molecules, or
    2. Synthetic nucleic acid molecules, or DNA or RNA derived from 
synthetic nucleic acid molecules, that meet any one of the following 
criteria:
    a. Contain more than 100 nucleotides; or
    b. Possess biological properties that enable integration into 
the genome (e.g., cis elements involved in integration); or
    c. Have the potential to replicate in a cell; or
    d. Can be translated or transcribed.
    No research participant shall be enrolled (see definition of 
enrollment in Section 1-E-7) until the RAC review process has been 
completed (see Appendix M-1-B, RAC Review Requirements).

Section III-F. Exempt Experiments

    Modifications were proposed to augment or clarify experiments that 
are exempt from the NIH Guidelines (III-F). Certain nucleic acid 
molecules are exempt from the NIH Guidelines under Section III-F 
because (1) their introduction into a biological system is not expected 
to present a biosafety risk that requires review by an IBC, or (2) the 
introduction of these nucleic acid molecules into biological systems 
would be akin to processes of nucleic acid transfer that already occur 
in nature, so that the appropriate biosafety practices would be the 
same as those used for the natural organism and/or would be covered by 
other guidances.
    As stated in the March 2009 Federal Register notice, with the 
exception of the new proposed Section III-F-1 discussed below, the 
exemptions from the current NIH Guidelines (October 2011) have been 
preserved with minor modifications. The addition of research with 
synthetic nucleic acids to the NIH Guidelines does not warrant 
modification of most of these exemptions except to extend them to 
synthetic constructs.
    To emphasize that research exempt from the NIH Guidelines may still 
have biosafety considerations and that other standards of biosafety may 
apply, a modification is being made to the introductory language for 
this section. 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 amended to read:

    The following recombinant or synthetic nucleic acid 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 Centers for Disease Control and 
Prevention (CDC)/NIH publication Biosafety in Microbiological and 
Biomedical Laboratories).

Section III-F-1. Exempt Experiments

    A new entry under Section III-F was proposed to exempt from the NIH 
Guidelines synthetic nucleic acids that cannot replicate unless they 
are administered to one or more human research participant(s) (see 
Section III-C-1). This exemption was proposed so that the NIH 
Guidelines apply to synthetic nucleic acid 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 nucleic 
acids that cannot replicate or are not derived from molecules that can 
replicate. The biosafety risks of using such constructs in basic and 
preclinical research are likely 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 analogous to that observed with chemical 
exposures, although nucleic acids are generally far less toxic than 
most chemicals.
    NIH/OBA received a number of comments on this proposed exemption. 
Most of the comments questioned whether this exemption should be 
extended to certain non-replicating nucleic acids used in human gene 
transfer because such constructs are likely to pose quantitatively 
different risks than vector-based gene transfer. The response to these 
comments is articulated in the prior section of this notice that 
focuses on Section III-C-1.
    With respect to basic research, NIH/OBA received comments 
questioning whether all non-replicating synthetic nucleic acids used in 
basic research pose sufficiently low biosafety risks to be exempt from 
the NIH Guidelines. Concerns were also raised about the use of 
synthetic non-replicating, integrating

[[Page 54590]]

viral vectors, such as lentiviral vectors, which could result in 
persistent transgene expression and have the potential to induce 
insertional oncogenesis. Non-replicating synthetic cassettes for toxins 
were also identified as raising potential biosafety risks as were 
oncogenes. In addition, clarification was sought regarding what was 
meant by the term ``replication.'' For example, would the following be 
considered replicating nucleic acids: (1) Plasmids lacking sequences to 
replicate in eukaryotic cells or (2) complementary DNAs (cDNAs) of 
positive strand RNA viruses, in which cDNA is not replicated but is 
transcribed into viral RNAs? In addition, another commenter asked why 
the exemption was limited to synthetic nucleic acids rather than all 
nucleic acids.
    NIH/OBA carefully considered all of these comments. With respect to 
making this exemption apply generally to all nucleic acid constructs, 
recombinant and synthetic, NIH/OBA notes that the definition of 
recombinant DNA molecules, which remains unchanged, only includes 
molecules that can replicate in a living cell or molecules that result 
from the replication of those described above. Therefore, to include 
them in the exemption under III-F-1 would be redundant, as this 
exemption only applies to nucleic acids that cannot replicate and are 
not derived from those that can replicate. NIH/OBA acknowledges that 
research with an integrating vector could raise biosafety 
considerations even if the vector does not replicate. With respect to 
toxins, a non-replicating expression cassette can only express the 
toxin in a single cell and the toxin cannot spread from cell to cell, 
thereby limiting its toxic effect. Nonetheless, NIH/OBA agrees that 
constructs expressing toxins that are currently reviewed under Section 
III-B-1, Experiments Involving the Cloning of Toxin Molecules with LD50 
of Less Than 100 Nanograms per Kilogram Body Weight, should remain 
subject to the NIH Guidelines. Indeed, under the current NIH 
Guidelines, even if an experiment falls under a Section III-F 
exemption, it may still be subject to review under Section III-B-1. For 
clarity, NIH/OBA therefore decided to specify that toxin-producing 
expression cassettes that would fall under Section III-B-1 will not be 
exempt under III-F.
    Synthetic constructs that have the potential to integrate will not 
likewise be exempted because they could inadvertently activate an 
oncogene, or an integrating sequence containing an oncogene could 
inadvertently be integrated into a cell and persist and transform that 
cell and its progeny.
    In the March 2009 Federal Register notice, Section III-F-1 was 
written so as to exempt from the NIH Guidelines ``Synthetic nucleic 
acids that cannot replicate, and that are not deliberately transferred 
into one or more human research participants (Section III-C and 
Appendix M).'' To clarify the interpretation of ``replicating,'' the 
language has been changed to match more closely that of the definition 
of recombinant DNA, ``cannot replicate in a living cell.'' This change 
is to make it clear that it is the ability to replicate in any cell 
type that determines whether the research is subject to the NIH 
Guidelines (i.e. , plasmids that can replicate in bacteria would be 
subject to the NIH Guidelines even if in eukaryotic cells). To address 
the cDNA of positive strand RNA viruses, the language has been changed 
to ``cannot replicate or generate nucleic acids that can replicate in a 
living cell.'' In addition, to make it clear that a synthetic 
replication incompetent virus is not exempt under this section of the 
NIH Guidelines, a parenthetical has been added to clarify that this 
section is meant to exempt only research with small synthetic 
oligonucleotides and expression cassettes, not synthetic viruses or 
bacteria that cannot replicate because of omission of one or more 
genes.
    Section III-F-1 is changed to exempt the following experiments:

    Section III-F-1. Those synthetic nucleic acids that: (1) Can 
neither replicate nor generate nucleic acids that can replicate in 
any living cell (e.g. , oligonucleotides or other synthetic nucleic 
acids that do not contain an origin of replication or contain 
elements known to interact with either DNA or RNA polymerase), and 
(2) are not designed to integrate into DNA, and (3) do not produce a 
toxin that is lethal for vertebrates at an LD50 of less than 100 
nanograms per kilogram body weight. If a synthetic nucleic acid is 
deliberately transferred into one or more human research 
participants and meets the criteria of Section III-C, it is not 
exempt under this Section.

Section III-F-2. Exempt Experiments

    Section III-F-1 will now be renumbered to III-F-2 and is amended to 
clarify that replicating nucleic acids that are not in cells, 
organisms, or viruses are exempt. The current NIH Guidelines only 
mentions organisms and viruses, and for clarity the term ``cells'' has 
been added. In addition, if a molecule is modified to facilitate entry 
into a cell, this will also not be exempt. 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 
unlikely to have associated biosafety risks. NIH/OBA received no 
comments on this change.
    The current Section III-F-1 states: ``Those that are not in 
organisms or viruses.''
    Section III-F-1 is re-numbered to III-F-2 and will exempt the 
following experiments:

    Section III-F-2. Those 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.

Sections III-F-3 through III-F-7

    Revised Sections III-F-3 through III-F-7 retain exemptions that 
were in the current version of NIH Guidelines (October 2011) with minor 
revisions. There were no comments to the minor changes made in Sections 
III-F-3 through III-F-7. The following changes will be made for these 
Section III-F exemptions.

Section III-F-3. Exempt Experiments

    Section III-F-2 exempts nucleic acid sequences that are essentially 
copies of those found in nature. The language has been modified as 
discussed in the March 2009 Federal Register notice by limiting this 
exemption to those nucleic acid sequences that exist contemporaneously 
in nature. Research in the lab with nucleic acid sequences for 
organisms that do not currently exist in nature, for example, an 
identical copy of the 1918 H1N1 influenza virus would not be exempt.
    Section III-F-2 will be re-numbered to III-F-3 and will exempt the 
following experiments:

    Section III-F-3. Those that consist solely of the exact 
recombinant or synthetic nucleic acid sequence from a single source 
that exists contemporaneously in nature.

Section III-F-4. Exempt Experiments

    The current Section III-F-3 exempts nucleic acids that are being 
propagated only in a prokaryotic host that is either the natural host 
or a closely related strain of the natural host. Again such constructs 
may already exist outside of a laboratory. It is renumbered to Section 
III-F-4 and no amendment to the language is made. It exempts the 
following experiments:

    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: Exempt Experiments

    The current Section III-F-4 exempts nucleic acids that are being 
propagated

[[Page 54591]]

in a eukaryotic host that is either the natural host or closely related 
strain of the natural host. Section III-F-4 is renumbered to Section 
III-F-5 and no amendment to the language is made. The following 
experiments are exempt per this section.

    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. Exempt Experiments

    Research that falls under Section III-F-6 (formerly Section III-F-
5) is exempt because the manipulation of these nucleic acids in a 
laboratory setting would be equivalent to processes that occur in 
nature when certain organisms exchange genetic material via 
physiological processes (e.g. , bacterial conjugation). It is limited 
to those organisms, as specified in Appendices A-I through A-VI, that 
are already known to exchange DNA in nature. The current Section III-F-
5 is renumbered to Section III-F-6 and no amendment to the language is 
made. The following experiments are exempt per this section.

    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 A will be amended to reference Section III-
F-6 rather than III-F-5.

Section III-F-7. Exempt Experiments

    Research that falls under the proposed Section III-F-7 exemption 
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 of a recombinant DNA molecule in the NIH Guidelines (Section 
I-B). Unless a transposon has been modified to be a recombinant 
molecule, genomic DNA that has acquired a transposon is not subject to 
the NIH Guidelines. Transposons that have not been modified by the 
insertion of recombinant or synthetic DNA are equivalent to what exists 
in nature and the process occurs naturally outside of a laboratory 
setting. The language from the definition of recombinant DNA (Section 
I-B) is being moved to this Section so that the definition of 
recombinant and synthetic nucleic acids found in Section I-B is solely 
a definition and does not include exemptions. The exemption described 
in Section I-B previously stated, ``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.'' The exemption language has been simplified to make 
it clear that unmodified transposons used in research are not subject 
to the NIH Guidelines even if derived from a recombinant or synthetic 
system. In addition, the reference to only plants and bacteria has been 
removed since it is now known that transposons are also found in 
animals. Section III-F-7 will exempt the following experiments:

    Section III-F-7. Those genomic DNA molecules that have acquired 
a transposable element, provided the transposable element does not 
contain any recombinant and/or synthetic DNA.

Section III-F-8. Exempt Experiments

    The current Section III-F-6 provides a mechanism by which other 
experiments that do not raise significant biosafety risks can be 
exempted from the NIH Guidelines after review by the RAC and approval 
by the NIH Director. The language has not been amended but, due to the 
insertion of two additional exemptions, it is being renumbered to 
Section III-F-8 and will exempt the following experiments:

    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 C will be amended to reference Section III-
F-8 rather than III-F-6.

Section IV-A. Policy

    Section IV-A addresses the roles and responsibilities of local 
institutions and investigators in implementing the NIH Guidelines. It 
contains a general policy statement that acknowledges the inability of 
the NIH Guidelines to address specifically all conceivable research or 
emerging techniques and therefore states that researchers and 
institutions should adhere to ``the intent of the NIH Guidelines as 
well as to their specifics.'' NIH/OBA received no comments on the 
proposed changes, which emphasize that the NIH Guidelines are expected 
to be modified to address new developments in research or scientific 
techniques. In addition, in rewriting this section of the NIH 
Guidelines, NIH/OBA has removed the sentence ``[G]eneral recognition of 
institutional authority and responsibility properly establishes 
accountability for safe conduct of the research at the local level,'' 
since the previous sentences adequately explains that the institution 
is accountable for implementation of the NIH Guidelines. 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 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 amended to read:

    The safe conduct of experiments involving recombinant or 
synthetic nucleic acid molecules 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

[[Page 54592]]

involving recombinant or synthetic nucleic acid molecules cannot be 
foreseen. The utilization of new genetic manipulation techniques may 
enable work previously conducted using 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 nucleic acid 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. 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 
its specifics. Therefore, each institution (and the Institutional 
Biosafety Committee acting on its behalf) is responsible for 
ensuring that all research with recombinant or synthetic nucleic 
acid molecules conducted at or sponsored by that institution is 
conducted in compliance with the NIH Guidelines. The following roles 
and responsibilities constitute an administrative framework in which 
safety is an essential and integral part of research involving 
recombinant or synthetic nucleic acid molecules. Further 
clarifications and interpretations of roles and responsibilities 
will be issued by NIH as necessary.

Section II-A-3. Comprehensive Risk Assessment

    Currently, the risk assessment framework of the NIH Guidelines uses 
the Risk Group (RG) of the parent organism as a starting point for 
determining the necessary containment level. For example, genetic 
modifications of 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 Biosafety Level 3 (BL3) containment, 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 can be effectively 
applied to assess the biosafety risks of experiments with synthetic 
nucleic acids. However, additional language was proposed to provide 
further guidance for evaluating synthetic biology research, which has 
the potential to create complex, novel organisms for which 
identification of a parent organism may be more difficult or may not be 
as relevant to the risk assessment as it is with more traditional 
recombinant organisms. The risk assessment may also be complicated by 
the limitations in predicting function from sequence(s), as recently 
addressed in a report by the Committee on Scientific Milestones for the 
Development of Gene-Sequence-Based Classification System for the 
Oversight of Select Agents, National Research Council, Sequence-Based 
Classification of Select Agents: A Brighter Line, ISBN-10: 0-309-15904-
0. Further complications may also result from synergistic effects 
caused by combining sequences from different sources in a novel 
context.
    NIH/OBA received one comment on its proposed revisions to Section 
II-A-3. The comment asked for clarification of the meaning of the term 
``chimera'' because it is not currently used in the NIH Guidelines. The 
term was meant to capture the concept that with the advent of more 
sophisticated synthetic techniques, a complex organism may be created 
using nucleic acid sequences from multiple sources. For clarity, this 
wording will be used in lieu of the term ``chimera.''
    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.
    Individuals working with human immunodeficiency virus (HIV), 
hepatitis B virus (HBV) or other bloodborne pathogens should consult 
the applicable Occupational Safety and Health Administration (OSHA) 
regulation, 29 CFR 1910.1030, and OSHA publications, e.g., OSHA 
3186-06R (2003 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 paragraph is being revised to clarify that the assignment 
of an organism to a Risk Group in Appendix B, Classification of Human 
Etiologic Agents on the Basis of Hazard, is based on a risk assessment 
and identification of the Risk Group of the parent organism. The first 
paragraph is amended as follows:

    In deciding on the appropriate containment for an experiment, 
the first step is to assess the risk of the agent itself. Appendix 
B, Classification of Human Etiologic Agents on the Basis of Hazard, 
classifies agents into Risk Groups based on an assessment of their 
ability to cause disease in humans and the available treatments for 
such disease. Once the Risk Group of the agent is identified, this 
should be followed

[[Page 54593]]

by a thorough consideration of how the agent 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).

    The following new paragraphs will then be inserted:

    While the starting point for the 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 an organism containing 
genetic sequences from multiple sources such that the parent agent 
may not be obvious. In such cases, the risk assessment should 
include 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 involves an assessment of the functions that may be 
encoded by these sequences (e.g., virulence or transmissibility). It 
may be prudent to first consider the highest Risk Group 
classification of all agents that are the source of sequences 
included in the construct. Other factors to be considered include 
the percentage of the genome contributed by each parent agent and 
the predicted function or intended purpose of each contributing 
sequence. The initial assumption should be that all sequences will 
function as they did in the original host context.
    The Principal Investigator and Institutional Biosafety Committee 
must also be cognizant that the combination of certain sequences in 
a new biological context 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, at least until further assessments 
can be carried out. A new biosafety risk may occur with an organism 
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 appropriate 
containment level 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 or synthetic nucleic acid 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; and III-D, Experiments that Require Institutional 
Biosafety Committee Approval Before Initiation.

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

    In reviewing the NIH Guidelines and the different levels of review 
required for each category of experiment, the RAC determined that it is 
important also to evaluate the class of experiments that require the 
highest level of review: Both RAC review and NIH Director approval. In 
doing so, it was determined that the language for Section III-A-1-a of 
the NIH Guidelines (research involving the introduction of drug 
resistance into a microorganism) may not capture all of the 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 multidrug 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.

    In March 2009, NIH/OBA proposed to remove the phrase not known to 
acquire the trait naturally in order to allow some flexibility in 
review of experiments that may raise public health concern but for 
which there may be low levels of antibiotic resistance in the 
community. For example, only a small number of vancomycin-resistant 
Staphylococcus aureus strains have been isolated (B.P. Howden, et al. , 
Reduced Vancomycin Susceptibility in Staphylococcus aureus, including 
Vancomycin-Intermediate and Heterogeneous Vancomycin-Intermediate 
Strains: Resistance Mechanisms, Laboratory Detection and Clinical 
Implications. Clinical Microbiology Reviews. 32(1), 99-139 (2010)). 
However, as there are only a limited number of antibiotics with which 
to treat these multidrug resistant S. aureus strains, the use of 
vancomycin resistance as a marker could raise public health concerns. 
Another example would be the use of ciprofloxacin resistance as a 
marker for Neisseria meningitidis. Again, there are a small number of 
documented cases of resistance, but ciprofloxacin remains the primary 
drug for post-exposure prophylaxis (H.M. Wu, et al., Emergence of 
Ciprofloxacin-resistant Neisseria meningitides in North America. N. 
Engl. J. Med. 360(9), 886-92 (2009)).
    In the March 2009 Federal Register notice, Section III-A-1-a was 
proposed to be amended as follows:

    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. 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.

    In response to this proposed change in the language to Section III-
A-1, NIH/OBA received a total of 36 written comments. Most either 
specifically noted their concurrence with comments from the American 
Society for Microbiology (ASM) or substantively concurred with ASM's 
comment. ASM commented that based on their interpretation of the 
proposed language the net effect would be to broaden substantially the 
scope of research that would be subject to the requirements of Section 
III-A-1-a and ``have a chilling impact on microbiological research 
where antibiotic resistance is routinely used in molecular and genetic 
studies.'' The ASM did agree that whether an organism is ``known to 
acquire the trait naturally'' is not always the critical factor in 
evaluating the safety of the experiment. ASM further stated that 
broadening the range of concern to include consideration of possible 
rare uses of an antibiotic that is not the ``drug of choice'' will only 
confound the work of the IBCs.
    Other commenters noted that it was the overuse and likely misuse 
use of antibiotics throughout the world that pose a much greater and 
better documented public health threat through the development of 
highly resistant organisms that are capable of surviving outside of a 
laboratory. They noted that this threat is distinct from the laboratory 
setting as many laboratory-generated strains may not have a

[[Page 54594]]

selective advantage outside the laboratory and, even if there were 
inadvertent release, may not become a public health risk. Some comments 
suggested adding qualifiers to narrow the scope of the proposed 
section. For example, one commenter suggested the addition of the word 
``reasonably'' to the concept of whether the transfer of drug 
resistance could compromise the ability to treat disease. Another 
commenter suggested that a list of criteria be developed that could be 
considered when a determination is made as to whether the transfer of a 
drug resistance trait could compromise public health. An additional 
commenter suggested that a list of ``acceptable'' transfers of drug 
resistance be incorporated into the NIH Guidelines.
    Other comments revealed some potential misinterpretation of what 
constitutes research that falls under Section III-A-1-a. For 
clarification, NIH/OBA notes that transfer of a drug resistance trait 
to any non-pathogenic organism is not subject to the requirements of 
Section III-A-1-a of the NIH Guidelines, and transfer of resistance to 
a drug that is not currently used to treat disease caused by a 
pathogenic organism is not subject to review under Section III-A-1-a. 
These experiments, however, may be subject to other portions of the NIH 
Guidelines.
    The changes proposed in the March 2009 Federal Register notice were 
further discussed at the public consultation on June 23, 2009. The 
panel of experts generally agreed that public health concerns may be 
raised by the use of certain antibiotic markers in pathogens that have 
resistance to a number of antibiotics, for example the use of 
vancomycin resistance as a marker in S. aureus. However, they concluded 
that these concerns could be adequately addressed by the IBC by 
requiring appropriate containment. The experts at the June 23, 2009, 
meeting agreed with ASM's observation that the safety of an experiment 
is not dictated solely by whether the organism can naturally acquire 
the resistance trait, i.e., an organism resistant to that drug has been 
found outside of a laboratory setting. Nonetheless, the consensus was 
that the original language should be maintained. They noted that there 
was no evidence that this section had failed to protect the public 
health. They also noted that once resistance has occurred in the 
microbial community outside of a laboratory setting, the use of such 
strains in a contained laboratory environment poses no additional risk 
to public health. Therefore, only those experiments that propose to 
introduce resistance to a therapeutic drug, when such resistance does 
not yet exist in the community, should require both RAC review and NIH 
Director approval. As to whether a single documented case of drug 
resistance is sufficient to allow this work to proceed without the 
necessity of RAC review and NIH Director approval, at least one expert 
noted that when there is a single case report, it is na[iuml]ve to 
believe that there is only a single clinical isolate with that 
resistance trait. There are probably dozens or hundreds of isolates 
that were never reported and more that are undetected. The point is 
that once resistance occurs naturally, as opposed to in a laboratory 
setting, it is likely to occur again if acquisition of the antibiotic 
resistance confers a survival advantage upon the organism.
    The introduction of a drug resistance trait into organisms in a 
laboratory setting when there are organisms outside the laboratory with 
this same drug resistance trait is fundamentally different than 
creating a novel drug resistant strain that does not exist outside of 
the lab. While one expert commented initially that the focus should be 
on resistance patterns in the U.S., others did not agree that such a 
limited perspective was warranted. There was consensus that there 
should be good documentation that this resistance exists outside of a 
laboratory setting and a single case report may need to be confirmed. 
Reports of clinical or environmental isolates should be the source of 
documentation of resistance.
    In sum, this section of the current NIH Guidelines appears to 
protect public health adequately. There may indeed be some experiments 
that raise important public health considerations but would not qualify 
as Major Actions because there is a low level of documented resistance 
to the drug that will be used for selection. However, it was not 
possible to develop clear and easily interpretable criteria for 
identifying such experiments. The solution proposed was to encourage 
IBCs to consult with NIH/OBA and for NIH/OBA to consult with the RAC as 
needed when there is an experiment that does not meet the criteria for 
Section III-A-1-a but nonetheless raises important public health 
questions.
    There were very few comments on the proposed language regarding 
analyzing subpopulations in determining the therapeutic usefulness of 
any antibiotic. However, there was some concern that this language 
might capture all antibiotics that could possibly be used rather than 
being limited to those antibiotics that were used clinically. 
Additional concern was raised about focusing on antibiotics that are 
not commonly used in the U.S. and therefore whether the definition of 
therapeutically useful should be limited to U.S. practice.
    The intent of the proposed clarification regarding what is a 
therapeutically useful drug was not meant to expand the requirement for 
RAC review and NIH Director approval to all antimicrobials that might 
exhibit in vitro activity against a microorganism, but rather to focus 
on those that are used clinically as first or second line therapies in 
certain populations. The additional language was intended to raise 
awareness that the analysis of whether a drug is therapeutically useful 
needs to include consideration of certain subpopulations, in particular 
children and pregnant women, as many antibiotics may not be appropriate 
for these specific populations. With respect to antibiotics not used in 
the U.S., to the extent that certain pathogens have extensive impact on 
international populations, it is prudent to consider the antibiotic of 
choice in countries in which this pathogen causes disease. For example, 
as background to the discussion of whether the transfer of 
chloramphenicol resistance to Rickettsia typhi should be reviewed under 
Section III-A-1-a, the investigators noted that chloramphenicol is 
rarely used in the U.S. to treat disease caused by this organism. 
However, as this disease has considerable impact worldwide, and in 
particular in many developing countries in which chloramphenicol is 
used, this antibiotic was considered to be a therapeutically useful 
drug.
    NIH/OBA agrees with the comments stating that the phrase ``not 
known to acquire the trait naturally'' serves to identify the majority 
of experiments that potentially pose higher risk to public health, and 
therefore this language will be retained. One clarification to the 
language was suggested by the RAC. Section III-A-1-a currently states 
that the ``deliberate transfer of a drug resistance trait to 
microorganisms that are not known to acquire the trait naturally, if 
such acquisition could compromise the use of the drug to control 
disease agents in humans, veterinary medicine, or agriculture, will be 
reviewed by the RAC.'' As the introduction of a drug resistance trait 
would normally eliminate that drug as a therapeutic option, the 
analysis of whether this section applies has focused on whether the 
acquisition of the resistance trait by that microorganism will 
compromise the ability to control disease using alternative drugs. 
Therefore, the wording has been clarified as follows:

[[Page 54595]]

    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 ability to control that disease agent 
in humans, veterinary medicine, or agriculture, will be reviewed by the 
RAC.
    While there was consensus that this language adequately protected 
public health for many years and served the scientific community, there 
was acknowledgement that the mere fact that resistance to a drug has 
been documented does not necessarily mean that there are no potential 
public health concerns raised by use of that drug resistance trait in 
that microorganism. These concerns may be handled by imposing 
appropriate containment and other occupational health measures. In some 
cases, an IBC may have adequate expertise from members with training in 
infectious diseases to assess these risks and adopt appropriate 
measures, but because other IBCs may not have that same expertise, 
providing a mechanism for consultation with NIH/OBA or the RAC would be 
helpful. In order to emphasize the fact that part of NIH/OBA's role is 
to assist IBCs and other interested parties in evaluating containment 
for recombinant and synthetic nucleic acid research, the following will 
be added to Section III-A-1-a. This statement is a slight modification 
to that found currently in Section IV-C-3 (Roles and Responsibilities 
of the Office of Biotechnology Activities) of the NIH Guidelines.
    At the request of an IBC, NIH/OBA will make a determination 
regarding whether a specific experiment involving the deliberate 
transfer of a drug resistance trait falls under Section III-A-1-a and 
therefore requires RAC review and NIH Director approval. IBCs may also 
consult with NIH/OBA regarding experiments that do not meet the 
requirements of Section III-A-1-a but nonetheless raise important 
public health issues. NIH/OBA will consult, as needed, with one or more 
experts, which may include the RAC.
    With respect to the comments about providing a list of drugs that 
are clinically useful for a particular disease or to generate a list of 
allowable transfers, inclusion of such information in the NIH 
Guidelines is not appropriate. The drugs of choice for diseases are 
often updated, and NIH/OBA follows the recommendation of the leading 
medical textbooks and medical literature. Information on where to 
obtain such guidance is already included in a Frequently Asked 
Questions document on NIH/OBA's website under IBC Information http://oba.od.nih.gov/rdna_ibc/ibc.html. Experiments involving the deliberate 
transfer of antibiotic resistance that present little or no risk to the 
environment, agriculture, or public health, should be addressed in 
informational guidances that are easily updated. Listing all acceptable 
transfers of antibiotic resistance is not feasible.
    Section III-A-1-a will now state:

    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 ability to control disease 
agents in humans, veterinary medicine, or agriculture, will be 
reviewed by the RAC.
    Consideration should be given as to whether the drug resistance 
trait to be used in the experiment would render that microorganism 
resistant to the primary drug available to and/or indicated for 
certain populations, for example children or pregnant women.
    At the request of an Institutional Biosafety Committee, NIH/OBA 
will make a determination regarding whether a specific experiment 
involving the deliberate transfer of a drug resistance trait falls 
under Section III-A-1-a and therefore requires RAC review and NIH 
Director approval. An Institutional Biosafety Committee may also 
consult with NIH/OBA regarding experiments that do not meet the 
requirements of Section III-A-1-a but nonetheless raise important 
public health issues. NIH/OBA will consult, as needed, with one or 
more experts, which may include the RAC.

Section III-B. Experiments That Require NIH/OBA and Institutional 
Biosafety Committee Approval

    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 Section III-B 
(Experiments that Require NIH/OBA and IBC Approval before Initiation) 
was proposed to allow NIH/OBA (rather than the NIH Director) to review 
and approve certain experiments deemed equivalent to those already 
approved by the NIH Director, providing there is no new information 
that would raise new biosafety or public health issues.
    The following section is proposed to be added to the NIH 
Guidelines:
    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 and pertinent information has not emerged 
since submission of the initial III-A-1 experiment that would change 
the biosafety and public health considerations 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.

Summary of Revised Language

    The following provides the new language for the amended sections 
discussed above.

Title of the NIH Guidelines

NIH Guidelines for Research Involving Recombinant or Synthetic 
Nucleic Acid Molecules

Section I. Scope of the NIH Guidelines

Section I-A. Purpose

    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 
that are chemically or otherwise modified but can base pair with 
naturally occurring nucleic acid molecules, and (iii) cells, 
organisms, and viruses containing such molecules.
    Section I-B. Definition of Recombinant and Synthetic Nucleic 
AcidsIn the context of the NIH Guidelines, recombinant and synthetic 
nucleic acids are defined as:
    (i) Molecules that a) are constructed by joining nucleic acid 
molecules and b) can replicate in a living cell, i.e. , recombinant 
nucleic acids;
    (ii) Nucleic acid molecules that are chemically or by other 
means synthesized or amplified, including those that are chemically 
or otherwise modified but can base pair with naturally occurring 
nucleic acid molecules, i.e., synthetic nucleic acids; or
    (iii) Molecules that result from the replication of those 
described in (i) or (ii) above.
    Section I-C. General Applicability
    Section I-C-1. The NIH Guidelines are applicable to:
    Section I-C-1-a. All recombinant or synthetic nucleic acid 
research within the United States (U.S.) or its territories that is 
within the category of research described in either Section I-C-1-a-
(1) or Section I-C-1-a-(2).
    Section I-C-1-a-(1). Research that is conducted at, or sponsored 
by, an institution that receives any support for recombinant or 
synthetic nucleic acid research from NIH, including research 
performed directly by NIH.
    An individual who receives support for research involving 
recombinant or synthetic nucleic acids must be associated with or 
sponsored by an institution that assumes the responsibilities 
assigned in the NIH Guidelines.

[[Page 54596]]

    Section I-C-1-a-(2). Research that involves testing in humans of 
materials containing recombinant or synthetic nucleic acids 
developed with NIH funds, if the institution that developed those 
materials sponsors or participates in those projects. Participation 
includes research collaboration or contractual agreements, not mere 
provision of research materials.
    Section I-C-1-b. All recombinant or synthetic nucleic acid 
research performed abroad that is within the category of research 
described in either Section I-C-1-b-(1) or Section I-C-1-b-(2).
    Section I-C-1-b-(1). Research supported by NIH funds.
    Section I-C-1-b-(2). Research that involves testing in humans of 
materials containing recombinant or synthetic nucleic acids 
developed with NIH funds, if the institution that developed those 
materials sponsors or participates in those projects. Participation 
includes research collaboration or contractual agreements, not mere 
provision of research materials.

Section II-A-3. Comprehensive Risk Assessment

    In deciding on the appropriate containment for an experiment, 
the first step is to assess the risk of the agent itself. Appendix 
B, Classification of Human Etiologic Agents on the Basis of Hazard, 
classifies agents into Risk Groups based on an assessment of their 
ability to cause disease in humans and the available treatments for 
such disease. Once the Risk Group of the agent is identified, this 
should be followed by a thorough consideration of how the agent 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 starting point for the 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 an organism containing 
genetic sequences from multiple sources such that the parent agent 
may not be obvious. In such cases, the risk assessment should 
include 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 involves an assessment of the functions that may be 
encoded by these sequences (e.g., virulence or transmissibility). It 
may be prudent to first consider the highest Risk Group 
classification of all agents that are the source of sequences 
included in the construct. Other factors to be considered include 
the percentage of the genome contributed by each parent agent and 
the predicted function or intended purpose of each contributing 
sequence. The initial assumption should be that all sequences will 
function as they did in the original host context.
    The Principal Investigator and Institutional Biosafety Committee 
must also be cognizant that the combination of certain sequences in 
a new biological context 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, at least until further assessments 
can be carried out. A new biosafety risk may occur with an organism 
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 appropriate 
containment level 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 or synthetic nucleic acid 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; and III-D, Experiments that Require Institutional 
Biosafety Committee Approval Before Initiation.

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

    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 ability to control disease agents 
in humans, veterinary medicine, or agriculture, will be reviewed by 
the RAC.
    Consideration should be given as to whether the drug resistance 
trait to be used in the experiment would render that microorganism 
resistant to the primary drug available to and/or indicated for 
certain populations, for example children or pregnant women.
    At the request of an Institutional Biosafety Committee, NIH/OBA 
will make a determination regarding whether a specific experiment 
involving the deliberate transfer of a drug resistance trait falls 
under Section III-A-1-a and therefore requires RAC review and NIH 
Director approval. An Institutional Biosafety Committee may also 
consult with NIH/OBA regarding experiments that do not meet the 
requirements of Section III-A-1-a but nonetheless raise important 
public health issues. NIH/OBA will consult, as needed, with one or 
more experts, which may include the RAC.

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 and pertinent information has not emerged 
since submission of the initial III-A-1 experiment that would change 
the biosafety and public health considerations 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.

Section III-C-1.

    Experiments Involving the Deliberate Transfer of Recombinant or 
Synthetic Nucleic Acid Molecules, or DNA or RNA Derived from 
Recombinant or Synthetic Nucleic Acid Molecules, into One or More 
Human Research Participants
    Human gene transfer is the deliberate transfer into human 
research participants of either:
    Recombinant nucleic acid molecules, or DNA or RNA derived from 
recombinant nucleic acid molecules, or
    Synthetic nucleic acid molecules, or DNA or RNA derived from 
synthetic nucleic acid molecules, that meet any one of the following 
criteria:
    a. Contain more than 100 nucleotides; or
    b. Possess biological properties that enable integration into 
the genome (e.g., cis elements involved in integration); or
    c. Have the potential to replicate in a cell; or
    d. Can be translated or transcribed.
    No research participant shall be enrolled (see definition of 
enrollment in Section 1-E-7) until the RAC review process has been 
completed (see Appendix M-I-B, RAC Review Requirements).

Section III-F. Exempt Experiments

    The following recombinant or synthetic nucleic acid molecules 
are exempt from the

 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 Centers for Disease 
Control and Prevention (CDC)/NIH publication Biosafety in 
Microbiological and Biomedical Laboratories).

    Section III-F-1. Those synthetic nucleic acids that: (1) can 
neither replicate nor generate nucleic acids that can replicate in 
any living cell (e.g. , oligonucleotides or other synthetic nucleic 
acids that do not contain an origin of replication or contain 
elements known to interact with either DNA or RNA polymerase), and 
(2) are not designed to integrate into DNA, and (3) do not produce a 
toxin that is lethal for vertebrates at an

[[Page 54597]]

LD50 of less than 100 nanograms per kilogram body weight. If a 
synthetic nucleic acid is deliberately transferred into one or more 
human research participants and meets the criteria of Section III-C 
it is not exempt under this Section.
    Section III-F-2. Those 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.
    Section III-F-3. Those that consist solely of the exact 
recombinant or synthetic nucleic acid sequence from a single source 
that exists contemporaneously in nature.
    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. 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. 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.
    Section III-F-7. Those genomic DNA molecules that have acquired 
a transposable element, provided the transposable element does not 
contain any recombinant and/or synthetic DNA.
    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.

Section IV-A. Policy

    The safe conduct of experiments involving recombinant or 
synthetic nucleic acids 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 or synthetic nucleic acid molecules cannot be 
foreseen. The utilization of new genetic manipulation techniques may 
enable work previously conducted using 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 nucleic acid 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. 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 research with recombinant or synthetic nucleic 
acid molecules conducted at or sponsored by that institution is 
conducted in compliance with the NIH Guidelines. The following roles 
and responsibilities constitute an administrative framework in which 
safety is an essential and integral part of research involving 
recombinant or synthetic nucleic acid molecules. Further 
clarifications and interpretations of roles and responsibilities 
will be issued by NIH as necessary.

    Dated: August 29, 2012.
Lawrence A. Tabak,
Deputy Director, National Institutes of Health.
 [FR Doc. 2012-21849 Filed 9-4-12; 8:45 am]
BILLING CODE 4140-01-P