[Federal Register Volume 86, Number 8 (Wednesday, January 13, 2021)]
[Proposed Rules]
[Pages 2615-2633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29107]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Parts 46 and 75

RIN 0991-AC15


Establishment of Safeguards and Program Integrity Requirements 
for Health and Human Services-Funded Extramural Research Involving 
Human Fetal Tissue

AGENCY: Office of the Secretary, Department of Health and Human 
Services.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: This is a notice of proposed rulemaking to amend certain 
regulatory provisions in order to adopt or strengthen safeguards and 
program integrity requirements applicable to extramural research 
involving human fetal tissue from elective abortions.

DATES: Comments must be submitted on or before February 12, 2021.

ADDRESSES: Comments must be identified by RIN 0991-AC15. Because of 
staff and resource limitations, comments must be submitted 
electronically to www.regulations.gov. Follow the ``Submit a comment'' 
instructions.
    Inspection of Public Comments: All comments received before the 
close of the comment period are available for viewing by the public, 
including personally identifiable or confidential business information 
that is included in a comment. Before or after the close of the comment 
period, the Department of Health and Human Services will post all 
comments that were received before the end of the comment period on 
www.regulations.gov. Follow the search instructions on that website to 
view the public comments.

FOR FURTHER INFORMATION CONTACT: Daniel Barry at <a href="/cdn-cgi/l/email-protection#afcbcec1c6cac381cdceddddd6efc7c7dc81c8c0d9"><span class="__cf_email__" data-cfemail="197d7877707c75377b786b6b605971716a377e766f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    In September 2018, the Department of Health and Human Services 
(HHS) terminated a contract that provided human fetal tissue from 
elective abortions to the Food and Drug Administration (FDA) for the 
development of testing protocols. HHS terminated the contract because 
it was not sufficiently assured that the contract included the 
appropriate protections applicable to fetal tissue research or met all 
other procurement requirements. HHS subsequently initiated a 
comprehensive review of all HHS research involving human fetal tissue 
from elective abortions to ensure consistency with the statutes and 
regulations governing such research and to ensure the adequacy of 
procedures and oversight in light of the serious regulatory, moral, and 
ethical considerations involved.
    Promoting the dignity of human life from conception to natural 
death is one of the top priorities of President Trump's administration. 
The audit and review informed the policy process that led to the 
administration's decision, announced June 5, 2019,\1\ to discontinue 
National Institutes of Health (NIH) intramural research--research 
conducted within NIH by NIH researchers--involving the use of human 
fetal tissue from elective abortion. With respect to extramural 
research (research conducted outside of, but funded by, NIH, e.g., at 
universities), the administration announced that, for new extramural 
research grant applications or current research projects in the 
competitive renewal process (generally every five years) that propose 
to use fetal tissue from elective abortions and that are recommended 
for potential funding through NIH's two-level external scientific 
review process, an ethics advisory board will be convened to review the 
research proposal and recommend whether, in light of the ethical 
considerations, NIH should fund the research project--pursuant to a law 
passed by Congress (42 U.S.C 289a-1).
---------------------------------------------------------------------------

    \1\ See Statement from the Department of Health and Human 
Services, June 5, 2019, available at https://www.hhs.gov/about/news/2019/06/05/statement-from-the-department-of-health-and-human-services.html.
---------------------------------------------------------------------------

    In the same policy statement, HHS announced that it would also 
undertake changes to its regulations and to NIH grants policy to adopt 
or strengthen safeguards and program integrity requirements applicable 
to extramural research involving human fetal tissue from elective 
abortions.\2\ In this notice of proposed rulemaking, HHS proposes 
revisions to its Human Research Subjects Protection Regulations (45 CFR 
part 46, subpart B, Additional Protections for Pregnant Women, Human 
Fetuses, and Neonates) and its

[[Page 2616]]

grants regulations (45 CFR part 75) to provide additional safeguards 
concerning the use of such tissue in HHS-funded research. This proposed 
rule would strengthen informed consent requirements in Subpart B and 
help ensure compliance with the statutory ban on the provision of 
valuable consideration for human fetal tissue through clarifying 
recordkeeping and maintenance requirements for the acquisition of human 
fetal tissue for research.
---------------------------------------------------------------------------

    \2\ See Statement from the Department of Health and Human 
Services, June 5, 2019, available at https://www.hhs.gov/about/news/2019/06/05/statement-from-the-department-of-health-and-human-services.html.
---------------------------------------------------------------------------

II. Background

    U.S. Federal regulations governing the protection of human subjects 
in research have been in existence for more than three decades. Nearly 
thirty years have passed since the ``Common Rule'' was adopted by 15 
U.S. Federal departments and agencies in an effort to promote 
uniformity, understanding, and compliance with human subject 
protections. (HHS adopted the Common Rule in Subpart A of 45 CFR part 
46.)
    The history of contemporary human subjects protections began in 
1947 with the Nuremberg Code, developed for the Nuremberg Military 
Tribunal as standards by which to judge the human experimentation 
conducted by the Nazis.\3\ The Nuremberg Code set forth many of the 
basic principles governing the ethical conduct of human subjects 
research. Similar recommendations were made by the World Medical 
Association in its Declaration of Helsinki: Recommendations Guiding 
Medical Doctors in Biomedical Research Involving Human Subjects 
(Helsinki Declaration), first adopted in 1964 and subsequently revised 
many times.\4\
---------------------------------------------------------------------------

    \3\ See Nuremberg Code, available at https://history.nih.gov/display/history/Nuremberg+Code.
    \4\ See World Medical Association, Declaration of Helsinki--
Ethical Principles for Medical Research Involving Human Subjects, 
available at www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/.
---------------------------------------------------------------------------

    Basic regulations governing the protection of human subjects in 
research supported or conducted by HHS (then the Department of Health, 
Education and Welfare) were first published in 1974, after a series of 
highly publicized research abuses. The enactment of the 1974 National 
Research Act (Pub. L. 93-348) created the National Commission for the 
Protection of Human Subjects of Biomedical and Behavioral Research 
(National Commission). One of the charges of the National Commission 
was to identify the basic ethical principles that should underlie the 
conduct of biomedical and behavioral research involving human subjects 
and to develop guidelines to assure that such research is conducted in 
accordance with those principles. In 1979, the National Commission 
published ``Ethical Principles and Guidelines for the Protection of 
Human Subjects of Research,'' also known as the Belmont Report (http://www.hhs.gov/ohrp/policy/belmont.html). The Belmont Report identified 
three fundamental ethical principles for all human subjects research: 
Respect for persons, beneficence, and justice. Like the Nuremberg Code 
and Helsinki Declaration, the Belmont Report stressed the importance of 
obtaining informed consent before engaging in human subjects research.
    Based on the Belmont Report and other work of the National 
Commission, HHS revised and expanded its regulations for the protection 
of human subjects in the late 1970s and early 1980s. The HHS 
regulations are codified at 45 CFR part 46, subparts A through E:

<bullet> Subpart A: Basic HHS Policy for Protection of Human Research 
Subjects
<bullet> Subpart B: Additional Protections for Pregnant Women, Human 
Fetuses, and Neonates Involved in Research
<bullet> Subpart C: Additional Protections Pertaining to Biomedical and 
Behavioral Research Involving Prisoners as Subjects
<bullet> Subpart D: Additional Protections for Children Involved in 
Research
<bullet> Subpart E: Registration of Institutional Review Boards

The statutory authority for the HHS regulations derives from 5 U.S.C. 
301; 42 U.S.C. 300v-1(b); and 42 U.S.C. 289.

    In 1991, 14 other Federal departments and agencies joined HHS in 
adopting a uniform set of rules for the protection of human subjects, 
known as the ``Common Rule,'' identical to subpart A of 45 CFR part 46 
of the HHS regulations.
    The Common Rule requires that Federally funded investigators in 
most instances obtain and document the informed consent of research 
subjects; requires Federally funded research be reviewed by an 
institutional review board (IRB); and describes the requirements for 
IRB membership, function, operations, research review, and 
recordkeeping. The regulations also delineate criteria for, and levels 
of, IRB review. Currently, except for human subjects research that is 
determined to be exempt from the regulations, Federally funded research 
involving human subjects is reviewed by an IRB in one of two ways: (1) 
By a convened IRB, or (2) through an expedited review process.
    Since the Common Rule was first developed, the landscape of 
research activities has changed dramatically, accompanied by a marked 
increase in the volume of research. It is estimated that total spending 
on health-related research and development by the drug industry and the 
Federal government has more than tripled since 1990.\5\ While 
traditional biomedical research conducted in academic medical centers 
continues to flourish, many studies are now also conducted at community 
hospitals, outpatient clinics, or physician-based practices. Clinical 
research is regularly conducted at multiple institutions across the 
U.S. and other countries. Recruitment firms, bioinformatics 
specialists, clinical trial coordinating centers, protocol developers, 
data analysts, contract research organizations (CROs), data and safety 
monitoring boards, community-based organizations, and other entities 
have joined investigators and sponsors as part of the clinical research 
enterprise.
---------------------------------------------------------------------------

    \5\ Congressional Budget Office. Research and Development in the 
Pharmaceutical Industry. October 2006.
---------------------------------------------------------------------------

    The rapid growth and expansion of human subjects research generated 
many questions about whether the regulatory framework is adequate and 
appropriate for the protection of human subjects in the 21st century. 
Furthermore, decades of experience have revealed a great deal about the 
functioning--and limitations--of existing regulations, and prompted 
critical evaluations by the Institute of Medicine (IOM),<SUP>6 7</SUP> 
the U.S. Government Accountability Office,<SUP>8 9 10</SUP> and many 
scholars.<SUP>11 12 13</SUP> Federal consideration of such revisions to 
the regulatory schema,

[[Page 2617]]

in addition to the issues that suggest a need for revision, is not 
without precedent. In its 2001 concluding report, the National 
Bioethics Advisory Commission (NBAC) made 30 recommendations that 
addressed areas including the scope and structure of the oversight 
system and the level of review applied to research; it emphasized the 
importance of the informed consent process, documentation and waiver of 
informed consent, protecting privacy and confidentiality, adverse event 
reporting, and review of cooperative or multi-site research 
studies.\14\
---------------------------------------------------------------------------

    \6\ Federman DD, Hanna KE, Rodriguez LL, eds. Responsible 
Research: A Systems Approach to Protecting Research Participants. 
Washington, DC: National Academies Press; 2002.
    \7\ Nass SJ, Levit LA, Gostin LO, eds. Beyond the HIPAA Privacy 
Rule: Enhancing Privacy, Improving Health Through Research. 
Washington, DC: National Academies Press; 2009.
    \8\ Human Subjects Research: HHS Takes Steps to Strengthen 
Protections, But Concerns Remain. GAO-01-775T, May 23, 2001.
    \9\ Scientific Research: Continued Vigilance Critical to 
Protecting Human Subjects. T-HEHS-96-102, Mar 12, 1996.
    \10\ Scientific Research: Continued Vigilance Critical to 
Protecting Human Subjects. HEHS-96-72, Mar 8, 1996.
    \11\ Kim S, Ubel P, De Vries R. Pruning the regulatory tree: For 
human-subjects research, maximum regulation does not mean maximum 
protection. Nature 2009;457: 534-535.
    \12\ Emanuel EJ, Wood A, Fleischman A, et al. Oversight of human 
participants research: Identifying problems to evaluate reform 
proposals. Ann Int Med 2004; 141(4): 282-291.
    \13\ Lynn J, Baily MA, Bottrell M, et al. The ethics of using 
quality improvement methods in health care. Ann Int Med 
2007;146(9):666- 673.
    \14\ National Bioethics Advisory Commission, Ethical and Policy 
Issues in Research Involving Human Participants. Bethesda, MD; 2001.
---------------------------------------------------------------------------

    In January 2017, as part of an Executive Branch-wide update to the 
Common Rule, HHS promulgated revisions to Subpart A in order to 
modernize, strengthen, and make the Common Rule more effective. Among 
other things, the revisions established new requirements regarding the 
information that must be given as part of the informed consent process 
to prospective research subjects.\15\ The executive summary of the 2017 
final rule noted that, ``to the extent appropriate, the intent is to 
eventually amend the other subparts of the HHS human subjects 
protection regulations in 45 CFR part 46 (subparts B, C, D, and E).'' 
\16\
---------------------------------------------------------------------------

    \15\ 82 FR 7150. Examples of provisions of the Common Rule 
governing informed consent can currently be found at 75 CFR 46.116, 
46.117, 46.204, and 46.205.
    \16\ 82 FR 7151.
---------------------------------------------------------------------------

    The notice of proposed rulemaking which led to the January 2017 
revisions to the Common Rule proposed requiring consent for the use of 
de-identified biospecimens (but not for the use of biospecimens from 
deceased individuals, which was outside the scope of the Common Rule). 
As a result of comments, the Common Rule agencies declined to finalized 
such requirements in the 2017 Common Rule. See Federal Policy for the 
Protection of Human Subjects, 82 FR 7149, 7150, 7153 (Jan. 17, 
2017).\17\
---------------------------------------------------------------------------

    \17\ For purposes of the 2017 Common Rule, a human subject 
includes a living person from whom a researcher obtains a 
biospecimen and, thus, requires informed consent with respect to the 
use of identifiable biospecimens in research. See, e.g., 45 CFR 
46.101(a), 46.102(e) (definition of human subject), 46.104(d)(7), 
(d)(8). Similarly, under Subpart B, if information associated with 
fetal material is recorded for research purposes in a manner that 
living individuals can be identified, they are research subjects. 45 
CFR 46.206(b).
---------------------------------------------------------------------------

    However, federal and state courts have recognized the importance of 
obtaining informed consent prior to conducting medical procedures or 
research on human subjects, or before tissue taken from an individual 
is used in research. In the seminal case of Canterbury v. Spence, the 
D.C. Circuit Court of Appeals observed that `` `[e]very human being of 
adult years and sound mind has a right to determine what shall be done 
with his own body. . . .' True consent to what happens to one's self is 
the informed exercise of a choice, and that entails an opportunity to 
evaluate knowledgeably the options available and the risks attendant 
upon each.'' \18\ Moreover, it is ``normally impossible to obtain a 
consent worthy of the name unless the physician first elucidates the 
options and the perils for the patient's edification. Thus the 
physician has long borne a duty, on pain of liability for unauthorized 
treatment, to make adequate disclosure to the patient.'' \19\
---------------------------------------------------------------------------

    \18\ Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972).
    \19\ Id. at 783.
---------------------------------------------------------------------------

    Subsequent courts have expounded that informed consent is necessary 
if a patient's tissue is to be used in research, especially where the 
physician extracting the tissue or his or her institution has a 
research or commercial interest. For example, in Moore v. Regents of 
University of California, the California Supreme Court held that, prior 
to providing medical treatment, a physician must obtain the patient's 
informed consent, which requires disclosing all of the physician's 
research and economic interests.\20\ As Moore recognized, informed 
consent is particularly important where the physician extracts human 
cells for use in subsequent research, since ``a physician who treats a 
patient in whom he also has a research interest has potentially 
conflicting loyalties. This is because medical treatment decisions are 
made on the basis of proportionality--weighing the benefits to the 
patient against the risks to the patient. . . . A physician who adds 
his own research interests to this balance may be tempted to order a 
scientifically useful procedure or test that offers marginal, or no, 
benefits to the patient.'' \21\ Courts in other states have since 
recognized that informed consent is required prior to conducting 
research or performing various medical procedures.\22\
---------------------------------------------------------------------------

    \20\ See Moore v. Regents of Univ. of Cal., 793 P.2d 479, 483 
(Cal. 1990).
    \21\ Id. at 484 (emphasis in original).
    \22\ See, e.g., T.D. v. N.Y. State Office of Mental Health, 228 
A.D.2d 95, 116 (N.Y. App. Div. 1996) (describing New York law 
regarding informed consent for being a human research subject); 
DeGennaro v. Tandon, 873 A.2d 191, 189-197 (Conn. App. 2005) 
(collecting cases requiring informed consent prior to undergoing 
medical procedures).
---------------------------------------------------------------------------

    Many states have banned or placed strict limits on using human 
fetal tissue in research.\23\ Those states that have not banned human 
fetal tissue research often require the consent of the pregnant woman 
for the fetal tissue donation.\24\
---------------------------------------------------------------------------

    \23\ E.g., Ariz. Rev. Stat. Ann. Sec.  36-2302 (2016); Ark. Code 
Ann. Sec.  20-17-802 (2019); Fla. Stat. Ann. Sec.  390.0111 (2018); 
Ky. Rev. Stat. Ann. Sec.  436.026; La. Rev. Stat. Ann. Sec.  
40:1061.24 (2015); Me. Rev. Stat. Ann. tit. 22, Sec.  1593; Mass. 
Gen. Laws Ann. ch. 112, Sec.  12J (2008); Mich. Comp. Laws Sec.  
333.2685; Minn. Stat. Ann. Sec.  145.422; Mo. Ann. Stat. Sec.  
188.036; N.D. Cent. Code Sec.  14-02.2-01; N.D. Cent. Code 
Sec. Sec.  14-02.2-02; N.M. Stat. Ann. Sec.  24-9A-3; Ohio Rev. Code 
Ann. Sec.  2919.14; Okla. Stat. Ann. tit. 63, Sec.  1-735; R.I. Gen. 
Laws Sec.  11-54-1; S.D. Codified Laws Sec.  34-23A-17; Utah Code 
Ann. Sec.  76-7-310; Wyo. Stat. Ann. Sec.  35-6-115 (2017).
    \24\ E.g., 17 CA ADC Sec.  100085 (2019).
---------------------------------------------------------------------------

    The research and medical communities have also recognized the 
importance of obtaining informed consent before engaging in human fetal 
tissue research. In June 2016, the American Medical Association (AMA) 
issued a Code of Medical Ethics Opinion (Code of Ethics Opinion) that 
listed several steps that physicians involved in human fetal tissue 
research should take, including obtaining the informed consent of the 
pregnant woman.\25\ The AMA recognized that the use of fetal tissue for 
research purposes ``raises a number of ethical considerations, 
including the degree to which a woman's decision to have an abortion 
might be influenced by the opportunity to donate fetal tissue.'' \26\ 
It further recognized that ``[c]oncerns have also been raised about 
potential conflicts of interest when there is possible financial 
benefit to those who are involved in the retrieval, storage, testing, 
preparation, and delivery of fetal tissues.'' Consequently, ``[t]o 
protect the interests of pregnant women as well as the integrity of 
science,'' the Code of Ethics Opinion stated that physicians who are 
involved in research that uses human fetal tissue should:
---------------------------------------------------------------------------

    \25\ AMA Code of Medical Ethics Opinion 7.3.5, available at 
https://www.ama-assn.org/delivering-care/ethics/research-using-human-fetal-tissue.
    \26\ Id.
---------------------------------------------------------------------------

    <bullet> Not ``offer[ ] money in exchange for fetal tissue.''
    <bullet> ``In all instances, obtain the woman's voluntary, informed 
consent,'' including for fetal tissue from a miscarriage (spontaneous 
abortion) for research. Under the Code of Ethics Opinion, informed 
consent includes a ``disclosure of the nature of the research including 
the purpose of using fetal tissue, as well as informing the woman of a 
right to refuse to participate.''
    <bullet> When fetal tissue from an induced abortion is used for 
research purposes, ensure that:
    [cir] ``The woman's decision to terminate the pregnancy is made 
prior to and independent of any discussion of

[[Page 2618]]

using the fetal tissue for research purposes.''
    [cir] ``Decisions regarding the technique used to induce abortion 
and the timing of the abortion in relation to the gestational age of 
the fetus are based on concern for the safety of the pregnant woman.''
    <bullet> ``Ensure that health care personnel involved in the 
termination of a pregnancy do not benefit from their participation in 
the termination.'' \27\
---------------------------------------------------------------------------

    \27\ Id. The Code of Ethics Opinion also addresses the use of 
fetal tissue in transplantation research or clinical care.
---------------------------------------------------------------------------

    HHS research and human research protection components have also 
adopted policies and provided guidance on research involving human 
fetal tissue. Subpart B requires that such research ``be conducted only 
in accord with any applicable Federal, State, or local laws and 
regulations regarding such activities''; the regulations further direct 
that ``[n]o inducements, monetary or otherwise, will be offered to 
terminate a pregnancy'' and that ``[i]ndividuals engaged in the 
research will have no part in any decisions as to the timing, method, 
or procedures used to terminate a pregnancy.'' 45 CFR 46.206(a), 
46.204(h)-(i). Following enactment of the NIH Revitalization Act of 
1993--which amended the Public Health Service Act to add (among other 
provisions) section 498A (42 U.S.C. 289g-1), establishing certain 
requirements for research on fetal tissue transplantation, and section 
498B (42 U.S.C. 289g-2), barring valuable consideration in connection 
with the acquisition, receipt, or transfer of human fetal tissue--the 
Office for Human Research Protections issued guidance on fetal tissue 
transplantation research.\28\ In the January 2007 HHS Grants Policy 
Statement,\29\ HHS included specific provisions on research on human 
fetal tissue and transplantation of human fetal tissue. In the Grants 
Policy Statement, HHS noted that ``[t]he scientific and ethical 
challenges associated with research utilizing human fetal tissue make 
it imperative that researchers and their organizations be fully aware 
of and in compliance with the Federal requirements,'' noting 
particularly section 498B of the Public Health Service Act.\30\ It also 
noted the additional requirements of section 498A with respect to 
research on human fetal tissue transplantation.\31\ Given its pre-
eminent role in conducting and funding biomedical research, NIH has 
also issued guidance on human fetal tissue in research. For example, on 
August 14, 2015, it released ``Reminder of Legal Requirements Regarding 
the Acquisition and Use of Human Fetal Tissue for Research Purposes,'' 
NOT-OD-15-143. In that notice, NIH reminded its grantees and 
contractors that ``research involving human fetal tissue must be 
conducted in accordance with applicable Federal, State and local laws, 
regulations, and policies, including the NIH Grants Policy Statement,'' 
making specific reference to the Public Health Service Act provisions 
and to 45 CFR 46.204(h)-(j) and 46.206.\32\ Early the following year, 
in 2016, NIH released its policy, applicable to both NIH intramural 
research investigators and extramural researchers, NIH ``Policy on 
Informed Consent for Human Fetal Tissue Research.'' \33\ In that 
notice, NIH, which is ``committed to ensuring that research involving 
human fetal tissue is conducted responsibly and meets the highest 
ethical standards,'' stated that ``NIH-funded research involving human 
fetal tissue must be conducted in compliance with all applicable 
federal, state, and local laws and regulations. . . .'' \34\ NIH 
further noted that ``[c]urrent federal laws and regulations require 
informed consent for research involving the transplantation of human 
fetal tissue and for research with human fetal material associated with 
information that can identify a living individual'' and that ``[m]ost 
states require informed consent for the use of fetal tissue in 
research. Accordingly, NIH expects informed consent to have been 
obtained from the donor for any NIH-funded research using human fetal 
tissue.\35\ NIH further noted that ``[w]hen obtaining primary human 
fetal tissue for research purposes, NIH expects grantees and 
contractors to maintain appropriate documentation, such as an 
attestation from the health care provider or a third party supplier, 
that informed consent was obtained at the time of tissue collection.'' 
\36\ In October 2018, these expectations and requirements became part 
of NIH's Grants Policy Statement.\37\
---------------------------------------------------------------------------

    \28\ See, e.g., Fetal Tissue Transplantation Research Guidance 
(2003), available at https://www.hhs.gov/ohrp/regulations-and-policy/guidance/fetal-tissue-transplanation/index.html.
    \29\ HHS Grants Policy Statement (Jan. 1, 2007), available at 
https://www.hhs.gov/sites/default/files/grants/grants/policies-regulations/hhsgps107.pdf.
    \30\ See HHS Grants Policy Statement (Jan. 1, 2007) at II-16, 
available at https://www.hhs.gov/sites/default/files/grants/grants/policies-regulations/hhsgps107.pdf.
    \31\ Id. at II-17--II-18.
    \32\ See Reminder of Legal Requirements Regarding the 
Acquisition and Use of Huma Fetal Tissue for Research Purposes, 
NOT=OD-15.143 (Aug. 14, 2015), available at https://grants.nih.gov/grants/guide/notice-files/NOT-OD-15-143.html.
    \33\ See NIH Policy on Informed Consent for Human Fetal Tissue 
Research, NOT-OD-16-033 (Feb. 11, 2016), available at https://grants.nih.gov/grants/guide/notice-files/not-od-16-033.html.
    \34\ Id.
    \35\ Id. (emphasis added).
    \36\ Id. FDA's Staff Manual Guides also contains guidance for 
FDA- funded or conducted research involving human fetal tissue. See 
FDA Staff Manual Guides, Volume IV--Agency Program Directive, 
General or Multidiscipline, Research Involving Human Fetal Tissue, 
SMG 9001.3 (Feb. 11, 2016).
    \37\ October 2018 NIH Grants Policy Statement, Section 4.1.14, 
available at https://grants.nih.gov/grants/policy/nihgps/html5/section_4/4.1.14_human_fetal_tissue_research.htm.
---------------------------------------------------------------------------

    As noted above, in September 2018, HHS initiated a comprehensive 
review of all HHS research involving human fetal tissue from elective 
abortions to ensure consistency with statutory and regulatory 
requirements and to ensure the adequacy of procedures and oversight of 
such research in light of the serious regulatory, moral, and ethical 
considerations involved. As part of this audit and review, HHS 
personnel reviewed the contracts (or purchase orders, as applicable) 
executed by personnel at NIH for the acquisition of human fetal tissue 
from elective abortions, and sought to obtain, from the organizations 
that supplied such tissue to the NIH researchers, copies of the 
required informed consents for the donation of the fetal tissue for 
research purposes, as well as documentation that valuable consideration 
was not sought or given in connection with the transfers of fetal 
tissue. One tissue procurement organization, which procured human fetal 
tissue for a number of NIH intramural research projects, provided its 
template informed consent document. It, however, refused to produce any 
executed informed consents or documentation of its compliance with laws 
and NIH policies on the informed consent of the mother to donate the 
fetal tissue for research, and would not make any representations to 
HHS that such informed consents had been obtained. The organization 
also declined to provide HHS with financial documentation for HHS to 
assess compliance with federal prohibitions on valuable consideration. 
Informed consents were obtained from two other organizations, an 
academic institution that maintains a tissue bank and another private 
tissue procurement organization, which provided fetal tissue for two 
intramural research projects. While HHS's inability to obtain 
information from one tissue procurement organization to confirm 
compliance with informed consent requirements and the bar on valuable 
consideration occurred in the context of HHS's audit of intramural 
research involving human fetal tissue from elective abortions, and

[[Page 2619]]

there are other sources from which researchers can and do obtain human 
fetal tissue, the organization at issue also provides human fetal 
tissue to a number of NIH-funded extramural researchers. As a result, 
HHS also became concerned that grantees, or those from whom fetal 
tissue had been obtained by grantees, may not always have readily 
available documentation of informed consents for fetal tissue research, 
or documentation that valuable consideration was not provided in 
exchange for human fetal tissue in connection with HHS-funded research, 
notwithstanding NIH's policy requirements and section 498B of the 
Public Health Service Act (42 U.S.C. 289g-2(a)), which prohibits 
acquiring, receiving, or otherwise transferring human fetal tissue for 
valuable consideration if the transfer affects interstate commerce.
    Building on these developments, in June 2019, HHS announced the 
Administration's new policy with respect to human fetal tissue 
research. That announcement included a commitment to undertake changes 
to HHS regulations and to NIH's grants policy to adopt or strengthen 
safeguards and program integrity requirements applicable to extramural 
research involving human fetal tissue.
    NIH began implementing the Administration's policy with the 
issuance of Changes to NIH Requirements Regarding Proposed Human Fetal 
Tissue Research, NOT-OD-19-128.\38\ In that notice, NIH outlined for 
its extramural research community the new requirements and review 
considerations with respect to research supported by NIH that involves 
the proposed use of human fetal tissue obtained from abortions in 
extramural applications for grants, cooperative agreements, and 
research and development (R&D) contracts. It ``remind[ed] the community 
of expectations to obtain informed consent from the donor for any NIH-
funded research using [human fetal tissue].'' \39\ The notice included 
requirements for a justification for the use of human fetal tissue for 
the proposed research; for planned written, voluntary, informed consent 
process for cell/tissue donation; and for budget information and 
justification for the quantity, type, and source of human fetal tissue, 
as well as a certification that valuable consideration has not been 
provided for the acquisition of such tissue. The notice outlined NIH's 
expectations for the contents of the informed consents (and related 
assurances): Language that the informed consent for donation of human 
fetal tissue was obtained by someone other than the person who obtained 
the informed consent for abortion, occurred after the informed consent 
for abortion, and would not affect the method of abortion; no 
enticements, benefits, or financial incentives were used at any level 
of the process to incentivize abortion or the donation of human fetal 
tissue; and the informed consent was signed by both the woman and the 
person who obtained the informed consent. NIH also indicated that the 
NIH award recipient should have documentation from the human fetal 
tissue donating organization assuring adherence to the requirements of 
the informed consent process and documentation that human fetal tissue 
was not obtained or acquired for valuable consideration; the awardee 
would be expected to provide such assurance for each year of the award 
such research is conducted for the life of the award and to maintain 
this documentation in accordance with the NIH Record Retention and 
Access policy.\40\
---------------------------------------------------------------------------

    \38\ See Changes to NIH Requirements Regarding Proposed Human 
Fetal Tissue Research, NOT-OD-19-128 (July 26, 2019), available at 
https://grants.nih.gov/grants/guide/notice-files/NOT-OD-19-128.html.
    \39\ Id. (citing NOT-OD-16-033).
    \40\ Id. The notice also required that the application describe 
plans for the treatment of human fetal tissue and its disposal when 
the research was complete, as well as assurances that such treatment 
and disposal would be consistent with such plans. Id.
---------------------------------------------------------------------------

    As the next step in this process, HHS now proposes to make 
modifications to 45 CFR part 46 Subpart B, which provides additional 
protections for pregnant women, human fetuses and neonates involved in 
research, and 45 CFR part 75, which implements standard requirements 
for administrative and financial management of Federal awards. The 
decision to amend HHS's regulations was the result of HHS's 
comprehensive review of HHS research involving human fetal tissue from 
elective abortions. Given the serious regulatory, moral, and ethical 
considerations involved, HHS concluded that it is appropriate to (1) 
clearly identify, in regulation, the minimum requirements for informed 
consent for the donation and use of human fetal tissue in research, 
especially when the fetal tissue is obtained from elective abortions; 
(2) impose certain requirements to help ensure compliance with the 
statutory bar on the provision of valuable consideration for human 
fetal tissue. These conclusions also follow from consideration of the 
authorities described above, the views of the medical community, State 
laws, and a comprehensive review of the use of human fetal tissue in 
research by HHS. HHS recognizes that, with respect to informed consent, 
this proposal goes beyond the approach taken by the Common Rule (in 
subpart A) with respect to biospecimens. However, HHS has long 
recognized the need for additional research protections for certain 
vulnerable populations or certain types of research--hence, the 
existence of Subparts B, C, and D--and believes that the additional 
protections proposed here are warranted to protect the interests of 
pregnant women and the integrity of science, as well as the serious 
moral and ethical considerations noted above. With respect to research 
involving human fetal tissue, this proposed rule would also align 
Subpart B more expressly with NIH policy and the AMA's Code of Ethics 
Opinion on the need for informed consent. HHS considered making no 
changes to 45 CFR part 46 subpart B and part 75, or making more limited 
changes. However, HHS has determined that a rulemaking is necessary to, 
among other things, adopt, clarify, or strengthen safeguards and 
program integrity requirements and, thus, to ensure compliance with the 
federal statutes and policies addressing the use of human fetal tissue 
in HHS-funded research.

III. Summary of the Notice of Proposed Rulemaking

    HHS proposes to amend 45 CFR part 46, subpart B, Protection of 
Human Subjects, Additional Protections for Pregnant Women, Human 
Fetuses and Neonates Involved in Research, and 45 CFR part 75, Uniform 
Administrative Requirements, Cost Principles, and Audit Requirements 
for HHS Awards, in the following ways:

A. Definitions, Sec.  46.202

    HHS is proposing to add a paragraph (i) to Sec.  46.202. Paragraph 
(i) would provide that, for purposes of Subpart B of 45 CFR part 46, 
human fetal tissue shall have the definition ascribed to it in 42 
U.S.C. 289g-1(g), namely ``tissue or cells obtained from a dead human 
embryo or fetus after a spontaneous or induced abortion, or after a 
stillbirth.'' While HHS proposes to define the term consistent with the 
statutory definition applicable to fetal tissue transplantation 
research and the prohibition on valuable consideration, many of the 
provisions proposed below would only apply to human fetal tissue 
derived from elective abortions and to HHS-funded research involving 
such tissue.
    For the purpose of implementing the June 2019 policy through NOT-
OD-19-

[[Page 2620]]

128, NIH provided a more technical definition of research involving 
human fetal tissue from elective abortions as ``research involving the 
study, analysis, or use of primary [human fetal tissue], cells, and 
derivatives, and human fetal primary cell cultures obtained from 
elective abortions'' and stated that it includes (1) human fetal 
primary or secondary cell cultures, whether derived by the investigator 
or obtained from a vendor; (2) animal models incorporating human fetal 
tissue from elective abortions, including obtaining such models from a 
vendor; (3) derivative products from elective abortion tissues or cells 
such as protein or nucleic acid extracts; and (4) any human extra-
embryonic cells and tissue, such as umbilical cord tissue, cord blood, 
placenta, amniotic fluid, and chorionic villi, if obtained from the 
process of elective abortion.'' NIH noted that this definition is 
consistent with the statutory definition that HHS proposes to adopt 
here for purposes of these regulations. To provide further specificity 
about the issue, NIH excluded certain types of research from the 
definition of research involving human fetal tissue from elective 
abortion, namely (1) human fetal primary or secondary cell cultures, if 
cells were not derived from an elective abortion; (2) already-
established (as of June 5, 2019) human fetal cell lines (e.g., induced 
pluripotent stem cell lines from human fetal tissue, immortalized cell 
lines, differentiated cell lines); (3) derivative products from human 
fetal tissue or cells (e.g., DNA, RNA, protein) if not derived from 
elective abortion; (4) human extra-embryonic cells and tissue, 
including, but not limited to, umbilical cord tissue, cord blood, 
placenta, amniotic fluid, and chorionic villi if not derived from 
elective abortion; (5) human fetal cells present in maternal blood or 
other maternal sources; (6) embryonic stem cells or embryonic cell 
lines; and (7) research on transplantation of human fetal tissue from 
elective abortion for therapeutic purposes (because of the statutory 
provision(s) addressing such research, i.e., National Institutes of 
Health Revitalization Act of 1993, Pub. L. 103-43, sec. 113, 107 Stat. 
126 (June 10, 1993), which generally prohibits the imposition of a 
policy that precludes HHS from conducting or supporting any research on 
the transplantation of human fetal tissue for therapeutic purposes).
    NIH noted that its definition of research involving human fetal 
tissue from elective abortions is consistent with the statutory 
definition. As HHS proposes to adopt the statutory definition for these 
regulations, HHS is of the belief that this proposed definition is 
consistent with the definition adopted in the NIH notice, for purpose 
of implementing the enhanced review requirements, including review of 
such research proposals that fall within a fundable scoring range by 
ethics advisory boards, pursuant to 42 U.S.C. 289a-1. Taking into 
consideration the different purposes and scope of the proposed 
regulation (which would apply to research involving all human fetal 
tissue, regardless of whether it was obtained from elective abortion) 
and the NIH notice (addressing research involving only human fetal 
tissue from elective abortion), HHS contemplates adopting the statutory 
definition with the express clarifications that (1) human fetal tissue 
includes human fetal primary tissue, cells from such tissue, and 
primary cell cultures; derivative products (including protein or 
nucleic acid extracts) from such tissues/cells; and any human extra-
embryonic cells and tissues, such as umbilical cord tissue, cord blood, 
placenta, amniotic fluid, and chorionic villi; and (2) human fetal 
tissue does not include established human fetal cell lines (including 
immortalized cell lines, induced pluripotent stem cell lines from human 
fetal tissue, and differentiated cell lines; human fetal cells present 
in maternal blood or maternal sources; and secondary use of data from 
human fetal tissue. HHS seeks comment on whether it would be 
appropriate to incorporate some or all of the specificity of the 
definition (and/or the exclusions from the definition) contained in the 
NIH notice; if so, which aspects of that definition (and/or the 
exclusions) should be incorporated into the definition for the purpose 
of this proposed rule; and if the contemplated express clarifications 
noted immediately above strike the right balance.

B. Research Involving Pregnant Women or Fetuses, Sec.  46.204

    HHS proposes to add paragraph (k) to Sec.  46.204, which governs 
research involving pregnant women or fetuses. Section 46.204 currently 
has two provisions which address abortion. Section 46.204(h) states 
that ``[n]o inducements, monetary or otherwise, will be offered to 
terminate a pregnancy.'' Similarly, Sec.  46.204(i) currently requires 
that ``[i]ndividuals engaged in research will have no part in any 
decisions as to the timing, method, or procedures used to terminate a 
pregnancy.'' Proposed paragraph (k) would require that the pregnant 
woman provide informed consent before the human fetal tissue obtained 
from the woman is used in HHS-funded research. Subpart A of the Common 
Rule generally requires that, before research is conducted on a human 
research subject, the human subject must provide informed consent, but 
not for unidentifiable biospecimens.\41\ As discussed previously, state 
law generally requires informed consent for participation in research, 
as well as informed consent for the donation of tissue for research. In 
light of the serious ethical and moral considerations presented by the 
use of fetal tissue for research purposes, as well as to protect the 
interests of pregnant women (and the integrity of science), HHS 
proposes that the requirement for informed consent for tissue donation 
should apply to research involving human fetal tissue. Because the 
fetus cannot provide informed consent, it is appropriate to obtain the 
informed consent of the woman from whom the fetal tissue would be 
obtained. Such a requirement was included in the 2016 AMA Code of 
Ethics Opinion.\42\ For these reasons, HHS proposes to add these 
requirements in paragraph (k). HHS, however, does not propose to 
include in proposed paragraph (k) all statements that should be 
included in such an informed consent. HHS further proposes that the 
requirement for such informed consent would apply with respect to 
donations of fetal tissue by women occurring after the effective date 
of the final rule.
---------------------------------------------------------------------------

    \41\ 45 CFR 46.116, 46.117.
    \42\ AMA Code of Medical Ethics Opinion 7.3.5, available at 
https://www.ama-assn.org/delivering-care/ethics/research-using-human-fetal-tissue.
---------------------------------------------------------------------------

    HHS proposes that paragraph (k) would also establish specific 
requirements in order to meet informed consent requirements in this 
unique context:
    <bullet> The pregnant woman's consent must be documented on a 
written informed consent form that is signed by the pregnant woman and 
written in plain language that is clear and easily understandable. As 
explained in Canterbury v. Spence, true consent is the informed 
exercise of a choice, and that entails an opportunity to evaluate 
knowledgeably the options available and the risks attendant upon 
each.\43\ This cannot occur if the pregnant woman's options are 
presented using complex medical jargon. For this reason, in 
promulgating its 2017 revisions to the Common Rule, HHS ``considered a 
growing body of literature that suggests informed consent forms have 
grown too lengthy and complex, adversely

[[Page 2621]]

affecting their ability to effectively convey the information needed 
for prospective participants to make an informed decision about 
participating in research.'' \44\ For the pregnant woman's consent to 
be informed, the consequences of her decision must be written in plain 
language that is clear and easily understandable. Moreover, the 
pregnant woman's consent should be documented in writing. Requiring 
such documentation would also minimize costs by reducing uncertainty 
and the risk of subsequent disputes or litigation.
---------------------------------------------------------------------------

    \43\ Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972).
    \44\ 82 FR 7211.
---------------------------------------------------------------------------

    <bullet> The form documenting the informed consent must include a 
statement that there have been and will be no enticements, benefits, or 
financial incentives to incentivize the donation or acquisition of 
human fetal tissue, or the abortion (if any) from which such tissue is 
obtained. This would require participants to document that they are 
following federal and state law. The Public Health Service Act already 
makes it unlawful for any person to knowingly acquire, receive, or 
otherwise transfer any human fetal tissue for valuable consideration if 
the transfer affects interstate commerce. See 42 U.S.C. 289g-2. Many 
states also forbid persons from providing enticements, benefits, or 
financial incentives to donate human fetal tissue.\45\ HHS proposes 
that the statement also indicate that no enticement, benefit or 
financial incentive was provided to incentivize the abortion--as a 
mechanism to ensure that persons do not evade the statutory prohibition 
on providing valuable consideration for human fetal tissue by providing 
incentives for the abortion. Furthermore, after conducting its review, 
HHS has determined that it is unlikely that persons involved in human 
fetal tissue research would provide enticements, benefits, or financial 
incentives to incentivize an abortion, without also seeking to 
incentivize the human fetal tissue donation.
---------------------------------------------------------------------------

    \45\ See, e.g., CA HLTH & S Sec.  125320 (``A person may not 
knowingly, for valuable consideration, purchase or sell embryonic or 
cadaveric fetal tissue for research purposes pursuant to this 
chapter.''); CO ST Sec.  25-2-111.5 (``No physician or institution 
that performs procedures for the induced termination of pregnancy 
shall transfer such tissue for valuable consideration to any 
organization or person that conducts research using fetal 
tissue.''); IN ST 35-46-5-1.5 (making it a Level 5 felony to 
intentionally acquire, receive, sell, or transfer fetal tissue); MO 
ST 188.036 (``No person shall offer any inducement, monetary or 
otherwise, to the mother or father of an unborn child for the 
purpose of procuring an abortion for the medical, scientific, 
experimental or therapeutic use of the fetal organs or tissue.'').
---------------------------------------------------------------------------

    <bullet> The form documenting the informed consent must permit the 
pregnant woman to choose to donate fetal tissue for research or to 
decline to donate fetal tissue for research. In order for informed 
consent for the donation of human fetal tissue to be truly voluntary, 
the donor has to understand that the donation decision is truly 
voluntary and that she can choose to donate the fetal tissue or can 
choose to decline to donate the fetal tissue. HHS proposes to require 
including both options on the form; it believes that this would help to 
ensure that the informed consent is truly voluntary.
    <bullet> The form documenting the informed consent must be signed 
by both the pregnant woman and the individual obtaining the informed 
consent for the donation, with both individuals attesting to the truth 
of the statements in the form. Given the serious moral and ethical 
considerations involved in human fetal tissue donation, it is 
appropriate to propose to require written documentation that the donor 
has provided informed consent and that the individual obtaining the 
informed consent has acted properly. Requiring both individuals' 
signatures would reduce costs by reducing the risks of litigation or 
other disputes--and assist HHS and the research grant recipient ensure 
compliance with the statutory and regulatory requirements.

These provisions would be applicable to all donations of human fetal 
tissue, regardless of whether the tissue was obtained from an elective 
abortion. This requirement is based on principals of informed consent 
or on a statute with respect to human fetal tissue, both of which are 
independent of the methods by which the fetal tissue is obtained.
    Where the human fetal tissue is to be obtained from an elective 
abortion, HHS further proposes that the informed consent include 
several additional provisions:
    <bullet> The pregnant woman's informed consent must be obtained 
after the decision to have an abortion has been conclusively made and 
informed consent for the abortion has been obtained. This proposed 
requirement would be consistent with Congressional intent and the views 
of the medical community. Congress required that research on the 
transplantation of human fetal tissue that is funded or conducted by 
HHS can only occur if the attending physician who obtains the tissue 
declares that the consent of the woman for the abortion was obtained 
prior to requesting or obtaining consent for the donation of the tissue 
for use in research. 42 U.S.C. 289g-(b)(2)(A)(i). Likewise, the 2016 
AMA Code of Ethics Opinion states that physicians involved in research 
that uses human fetal tissue should ensure that the woman's decision to 
terminate the pregnancy is made prior to, and independent of, any 
discussion of using the fetal tissue for research purposes. Congress 
and the AMA recognize that a woman may not be truly providing informed 
consent to a human fetal tissue donation if the decision to donate is 
intermingled with the decision about whether to have an abortion.
    <bullet> The pregnant woman's informed consent must be obtained by 
an individual other than the individual who obtained the informed 
consent for the pregnant woman's abortion. This proposed requirement 
would help ensure that the decision whether to donate human fetal 
tissue is independent of the decision whether to have an abortion.
    <bullet> The pregnant woman must be at or over the age of majority 
in the jurisdiction in which the pregnant woman's donation is made. 
American law has long recognized that important decisions about medical 
procedures should generally be made by adults.\46\ That is all the more 
so in this unique context that raises serious moral and ethical 
concerns. Accordingly, HHS proposes to impose this requirement with 
respect to the donation of human fetal tissue.
---------------------------------------------------------------------------

    \46\ See Moore, 793 P.2d at 483 (``[A] person of adult years and 
in sound mind has the right, in the exercise of control over his own 
body, to determine whether or not to submit to lawful medical 
treatment.'') (quoting Cobbs v. Grant, 8 Cal. 3d 229, 242 (1972)); 
Canterbury, 464 F.2d at 780 (``The root premise is the concept, 
fundamental in American jurisprudence, that `[e]very human being of 
adult years and sound mind has a right to determine what shall be 
done with his own body.' '') (quoting Schloendorff v. Soc'y of N.Y. 
Hosp., 105 NE 92, 93 (N.Y. 1914)).
---------------------------------------------------------------------------

    <bullet> The form documenting the informed consent must include a 
statement that the decision to have an abortion and the method of 
abortion have not been affected by the decision whether to donate human 
fetal tissue. This would require documentation that the requirement 
concerning the order in which the informed consents are obtained, 
above, has been met. It would also ensure that the pregnant woman's 
consent to the human fetal tissue donation is informed and independent, 
since the method of abortion would not be affected by the decision 
whether to donate human fetal tissue.
    HHS proposes to provide, in an appendix to the preamble, sample 
informed consent form provisions, as guidance to regulated entities on 
the type of informed consent form

[[Page 2622]]

provisions that would comply with the proposed informed consent 
requirements. This proposal would provide certainty to the regulated 
entities that they have sufficiently obtained informed consent and met 
the requirements of this proposed rule. However, the use of the sample 
provisions would not be required, and relevant parties would be free to 
use their own language in a form for informed consent for the donation 
of human fetal tissue as long as the form meets the proposed 
requirements. HHS seeks comment on the contents of sample informed 
consent form provisions.

C. Research Involving Pregnant Women or Fetuses, Sec.  46.206

    HHS proposes to add paragraphs (c), (d), (e), (f), (g), (h), and 
(i) to Sec.  46.206.
    Paragraph (c) would require that, at all stages in the process to 
acquire or otherwise obtain human fetal tissue for use in research, 
there would be no enticements, benefits, or financial incentives 
provided to the pregnant woman or attending physician to incentivize 
the occurrence of an abortion or the donation or acquisition of human 
fetal tissue. HHS proposes to add this paragraph for the same reasons 
that it proposes to add paragraph (k)(1)(B) to Sec.  46.204. Paragraph 
(c) would help implement 42 U.S.C. 289g-2 and specify what is required 
by that provision in the context of research involving pregnant women, 
fetuses, or human fetal tissue.
    Paragraph (d) would require that no person who solicits or 
knowingly acquires, receives, or accepts a donation of human fetal 
tissue for use in research shall provide valuable consideration for the 
costs associated with the acquisition of the fetal tissue or with any 
abortion that may be the source of the human fetal tissue used or to be 
used in the research. HHS proposes to add paragraph (d) for some of the 
same reasons that it proposes to add paragraph (k)(1)(B) to Sec.  
46.204. Permitting a person to provide valuable consideration for costs 
associated with the abortion that is the source of the human fetal 
tissue could impact the decision whether to donate human fetal tissue 
which should be independent of the decision whether to have an 
abortion. Moreover, permitting a person to provide valuable 
consideration for such costs could enable the person, by claiming they 
are merely paying for the costs of the abortion and not the human fetal 
tissue, to circumvent the prohibition on providing valuable 
consideration for human fetal tissue. If a person could provide 
valuable consideration for the abortion, enforcement actions arising 
out of payments for human fetal tissue would frequently face 
evidentiary questions about whether the payment was for the costs 
associated with the abortion, rather than the human fetal tissue.
    Paragraph (e) would require that no person who solicits or 
knowingly acquires, receives, or accepts a donation of human fetal 
tissue for use in research shall provide valuable consideration for the 
costs associated with the donation or acquisition of human fetal 
tissue. HHS proposes to add paragraph (e) for some of the same reasons 
that it proposes to add paragraph (k)(1)(B) to Sec.  46.204. 
Furthermore, paragraph (e) would (1) eliminate any uncertainty about 
whether 42 U.S.C. 289g-2's prohibition on providing valuable 
consideration for the acquisition, receipt, or transfer of human fetal 
tissue applies to human fetal tissue research, and (2) specify what is 
required to comply with that provision in the human fetal tissue 
research context.
    Paragraph (f) would define ``valuable consideration'' for purposes 
of paragraphs (d) and (e) as all payments other than payments 
associated with the transportation, implantation, processing, 
preservation, quality control, or storage of human fetal tissue. 
Paragraph (f) is in accord with 42 U.S.C. 289g-2(e)(3), which provides 
that ``valuable consideration'' does not include reasonable payments 
associated with the transportation, implantation, processing, 
preservation, quality control, or storage of human fetal tissue. 
Paragraph (f) would also provide certainty to those involved in human 
fetal tissue research, by making clear that the enumerated costs are 
the only ones that do not constitute ``valuable consideration'' for 
purposes of Sec.  46.206.
    Paragraph (g) would emphasize that human fetal tissue may be used 
in research only if an informed consent that meets the applicable 
requirements of Sec.  46.204(k) has been obtained with respect to the 
tissue donation. HHS proposes that the requirement would apply with 
respect to donations of fetal tissue by women where the initial 
donation occurs after the effective date of the final rule.
    Paragraph (h) would provide that human fetal tissue from elective 
abortions can only be used in research conducted or funded by HHS if 
the human fetal tissue is acquired or otherwise obtained from Federal 
or State Governments, Federal or State Government-owned entities, 
universities, colleges, accredited degree-granting institutions of 
higher education, or university hospitals or other academic medical 
centers. In this context that implicates serious moral and ethical 
considerations, HHS is committed to ensuring that research conducted 
using human fetal tissue has been obtained through appropriate 
procedures, including that the informed consent associated with the 
donation of fetal tissue is truly voluntary and not performed on an ad 
hoc basis or by those who are not sufficiently qualified. Thus, this 
proposed requirement would establish additional safeguards to ensure 
that the procurement of human fetal tissue is conducted by 
organizations or institutions that are familiar with, and accustomed to 
complying with, informed consent requirements and that are regularly 
subject to oversight by HHS--and is not obtained by organizations or 
individuals that are not qualified to implement such requirements, that 
are not otherwise subject to regulation and oversight by HHS, and that 
accordingly may not respond to requests for access to records. HHS also 
believes that paragraph (h) strengthens program integrity by making 
sure that the entities obtaining human fetal tissue for research are 
substantially more likely to comply with these requirements, especially 
in a manner that complies with the concerns expressed by Congress when 
it placed limits on the use of human fetal tissue in the Public Health 
Service Act.
    Paragraph (i) requires that, once human fetal tissue is no longer 
to be used in research, it shall be treated respectfully and disposed 
of reasonably and in compliance with any additional laws or regulations 
imposed by applicable state law. By its statutory enactments, Congress 
has expressed that members of the public should proceed carefully when 
their actions involve human fetal tissue. HHS believes that paragraph 
(i) would further implement this concern at minimal burden. Many states 
and accredited academic institutions have already adopted statutes or 
policies with similar requirements.\47\ HHS asks for comment on this 
proposed regulatory requirement and the contours of such proposed 
requirement.
---------------------------------------------------------------------------

    \47\ See, e.g., AR Code Sec.  20-17-801; GA ST Sec.  16-12-141.1 
(2017); IN ST Sec.  16-34-3-4 (2016); SD ST Sec.  34-25-32.4; 
University of Minnesota Policy Statement Regarding Acquisition, Use, 
and Disposition of Donated Human Fetal Tissue for Transplantation 
Research, available at https://policy.umn.edu/research/fetalresearch.
---------------------------------------------------------------------------

D. Access to Records, Sec.  75.364

    HHS's grants regulations, at Sec.  75.364(a), provide that, among 
others, the HHS awarding agency, HHS

[[Page 2623]]

Inspector General, and the Comptroller General of the United States, or 
any of their authorized representatives, ``must have the right of 
access to any documents, papers, or other records'' of the non-Federal 
entity (that is, the recipient of HHS funds) which are ``pertinent to 
the Federal award, in order to make audits, examinations, excerpts, and 
transcripts''--including ``timely and reasonable access to personnel 
for the purpose of interview and discussion related to such 
documents.'' 45 CFR 75.364; see also 2 CFR 200.337 (OMB uniform 
administrative requirements). HHS proposes to add a paragraph (a)(1), 
which would specifically require that non-Federal entities that engage 
in human fetal tissue research pursuant to a Federal award provide the 
HHS awarding agency, the Inspector General, the Comptroller General of 
the United States, and the pass-through entity or any of their 
authorized representatives, with a right of access to (1) all informed 
consent forms obtained by the non-Federal entity for human fetal tissue 
research, which may be redacted with respect to the name and signature 
of the woman (for privacy purposes); (2) all documents, papers, or 
other records as are necessary to establish that the human fetal tissue 
was not obtained or transferred for valuable consideration; (3) all 
documents, papers, or other records as are necessary to establish that 
federal funds were not used to acquire or otherwise obtain the human 
fetal tissue from elective abortions; and (4) personnel familiar with 
the foregoing documents, for purposes of interview and discussion 
related to such documents.
    Paragraph (a)(1) would impose little, if any, additional burdens or 
costs. 45 CFR 75.364(a) already requires that the HHS awarding agency, 
inspectors general, the Comptroller General, and any of their 
authorized representatives have the right of access to any documents, 
papers, or other records of the non-Federal entity which are pertinent 
to the Federal award, in order to make audits, examinations, excerpts, 
and transcripts. Paragraph (a)(1) would simply provide clarity to 
recipients involved in human fetal tissue research by specifying 
certain categories of the documents, papers, and records (and 
personnel) for which a right of access must be provided. Because of the 
unique context and serious regulatory, ethical, and moral 
considerations involved in human fetal tissue research, HHS believes it 
would be beneficial to specifically remind this subset of recipients in 
advance of the documents, papers, and records (and personnel) for which 
HHS has a right of access. Moreover, a 2016 House of Representatives 
committee report found that certain institutional review boards lacked 
records regarding their oversight of fetal tissue research and 
transplantation, and the committee was unable to obtain access to 
records that could determine whether fetal tissue was obtained for 
valuable consideration.\48\ Because of the uncertainty over whether 
required documents are being maintained, HHS proposes to reiterate that 
recipients must maintain required documents and provide the HHS 
awarding agency, among others, with access to such documents and 
personnel upon request. Paragraph (a)(1) would therefore also 
strengthen program integrity.
---------------------------------------------------------------------------

    \48\ See, e.g., Final Report of the Select Investigative Panel 
of the Energy & Commerce Committee (Dec. 30, 2016), at xxi, xxvii, 
xxviii, xxix, xxxi, xxxviii, 16.
---------------------------------------------------------------------------

    By its statutory enactments, Congress has expressed that members of 
the public should proceed carefully when their actions involve human 
fetal tissue and that valuable consideration should not be provided in 
order to acquire human fetal tissue. HHS proposes, below, that federal 
funds not be used to acquire human fetal tissue from elective 
abortions; HHS believes that it is particularly important to be good 
stewards of federal funds in this context. Given the aforementioned 
concerns, HHS believes that recipients should be able to document that 
valuable consideration was not provided to acquire human fetal tissue 
and that federal funds were not used to acquire human fetal tissue from 
elective abortions.
    HHS also proposes to add a paragraph (d), which would provide that, 
for purposes of Sec.  75.364, ``human fetal tissue'' shall have the 
definition ascribed to it in 49 U.S.C. 289g-1. Paragraph (e) would 
clarify for recipients what is meant by ``human fetal tissue,'' and 
would define that term in a way that conforms to the definition 
provided by Congress. As with the proposed definition of ``human fetal 
tissue'' for purposes of Subpart B of 45 CFR part 46, HHS believes that 
this proposed definition is consistent with the definition adopted in 
the NIH notice for purpose of implementing the enhanced review 
requirements. Similarly, HHS contemplates adopting the statutory 
definition with the express clarifications that (1) human fetal tissue 
includes human fetal primary tissue, cells from such tissue, and 
primary cell cultures; derivative products (including protein or 
nucleic acid extracts) from such tissues/cells; and any human extra-
embryonic cells and tissues, such as umbilical cord tissue, cord blood, 
placenta, amniotic fluid, and chorionic villi; and (2) human fetal 
tissue does not include established human fetal cell lines (including 
immortalized cell lines, induced pluripotent stem cell lines from human 
fetal tissue, and differentiated cell lines; human fetal cells present 
in maternal blood or maternal sources; and secondary use of data from 
human fetal tissue. HHS seeks comment on whether it would be 
appropriate to incorporate some or all of the specificity of the 
definition (and/or the exclusions from the definition) contained in the 
NIH notice; if so, which aspects of that definition (and/or the 
exclusions) should be incorporated into the definition for the purpose 
of this proposed rule; and if the contemplated express clarifications 
noted immediately above strike the right balance.

E. Expenses Associated With Acquiring Certain Human Fetal Tissue for 
Research, Sec.  75.478

    In its grants regulation in 45 CFR part 75, HHS addresses certain 
select items of costs and identifies certain costs that are or are not 
allowable under HHS's funding awards.\49\ HHS proposes to add Sec.  
75.478. Section 75.478 would provide that expenses associated with the 
acquisition of human fetal tissue from elective abortions for use in 
research are not allowable expenses under Federal awards from an HHS 
awarding agency. As a result of the comprehensive review that HHS 
undertook and in light of the serious regulatory, moral, and ethical 
considerations involved, HHS has concluded that such costs should not 
be allowable--that is, they are not expenses that should be borne by 
the taxpayer through the federal research award. HHS would continue to 
fund research involving such human fetal tissue, consistent with the 
June 5, 2019 policy,\50\ but it proposes that funds from HHS research 
awards could not be used for the acquisition of human fetal tissue from 
elective abortions. HHS encourages the recipients of HHS awards for 
research involving human fetal tissue from elective abortions to obtain 
human fetal tissue by donation or no-cost material transfer agreement.
---------------------------------------------------------------------------

    \49\ See, e.g., 45 CFR 75.420-75.475 (general provisions for 
selected items of cost), 75.476-75.477 (HHS selected items of cost).
    \50\ See Statement from the Department of Health and Human 
Services, June 5, 2019, available at https://www.hhs.gov/about/news/2019/06/05/statement-from-the-department-of-health-and-human-services.html.

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

[[Page 2624]]

IV. Request for Comment

    HHS seeks comment on all aspects of this proposed rule and the 
model informed consent form provisions, including the likely impacts of 
the proposed rule, as compared to the status quo. HHS also seeks 
comment on its regulatory impact analysis.

V. Regulatory Impact Analysis

    HHS has examined the impacts of this proposed rule as required 
under Executive Order 12866 on Regulatory Planning and Review, 58 FR 
51,735 (Oct. 4, 1993); Executive Order 13563 on Improving Regulation 
and Regulatory Review, 76 FR 3821 (Jan. 21, 2011); Executive Order 
13771 on Reducing Regulation and Controlling Regulatory Costs, 82 FR 
9339 (Feb. 3, 2017); the Regulatory Flexibility Act (Pub. L. 96-354 
(Sept. 19, 1980) (codified as amended at 5 U.S.C. 601-612)) and 
Executive Order 13272 on Proper Consideration of Small Entities in 
Agency Rulemaking, 67 FR 53461 (Aug. 16, 2002); section 202 of the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-04, 109 Stat. 48 
(Mar. 22, 1995)); Executive Order 13132 on Federalism, 64 FR 43255 
(Aug. 4, 1999), Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 847 (Mar. 29, 1996) 
(codified as amended at 5 U.S.C. 801-808)) (commonly known as the 
Congressional Review Act); section 654 of the Treasury and General 
Government Appropriations Act of 1999 (the Assessment of Federal 
Regulation and Policies on Families); and the Paperwork Reduction Act 
of 1995, 44 U.S.C. 3501 et seq.

Executive Orders 12866 and 13563 Determination

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects; distributive impacts; and equity). Executive Order 13563 is 
supplemental to Executive Order 12866 and reaffirms the principles, 
structures, and definitions governing regulatory review established 
there. For significant regulatory actions, Executive Order 12866 
requires ``an assessment, including the underlying analysis,'' of 
benefits and costs ``anticipated from the regulatory action.'' 
Executive Order 12866, Sec. Sec.  6(a)(3)(C), 3(f)(1).
    The Office of Management and Budget (OMB) has determined this 
proposed rule is a ``significant regulatory action'' under Executive 
Order 12866, Sec.  3(f)(4), in as much as it raises novel legal or 
policy issues that arise out of legal mandates, the President's 
priorities, or the principles set forth in an Executive Order, but that 
it is not economically significant in that it will not have an annual 
effect on the economy of greater than $100 million in one year. Thus, 
the Office of Management and Budget has reviewed it. Under Executive 
Order 13563, in proposing this rule, HHS has attempted to promote 
coordination, simplification, and harmonization; has sought to identify 
means to achieve regulatory goals that are designed to promote 
innovation; and has ensured the objectivity of any scientific and 
technological information and processes used to support this proposed 
rule.
Summary of and Need for Proposed Rule
    HHS recognizes that conducting and funding research involving human 
fetal tissue from abortions presents serious regulatory, moral, and 
ethical considerations. The principle of informed consent is central to 
the practice of medicine, as well as to human subjects research. 
Federal and state laws and policies recognize the importance of 
informed consent, not only for research involving human subjects, but 
also for the donation of human tissue and cells for research purposes. 
This informed consent is especially important when the tissue being 
donated is human fetal tissue and the source of such tissue is elective 
abortions. Congress has similarly recognized the moral and ethical 
issues implicated by the acquisition of human fetal tissue and the use 
of human fetal tissue in research: It amended the Public Health Service 
Act to, among other things, make it unlawful ``for any person to 
knowingly acquire, receive, or otherwise transfer any human fetal 
tissue for valuable consideration''--which ``does not include 
reasonable payments associated with the transportation, implantation, 
processing, preservation, quality control, or storage of human fetal 
tissue''--if the transfer affects interstate commerce.
    As a result of a comprehensive review of HHS research involving 
human fetal tissue from elective abortion and in light of the serious 
regulatory, moral and ethical considerations involved, HHS determined 
that it would be appropriate to undertake changes to its regulations to 
adopt or strengthen safeguards and program integrity requirements 
applicable to extramural research involving human fetal tissue. These 
safeguards and program integrity requirements relate to the informed 
consent process and the statutory bar on the provision of valuable 
consideration in connection with the transfer of human fetal tissue. 
HHS believes that additional informed consent statements and procedures 
are needed to ensure that (1) the informed consent to the donation of 
human fetal tissue from abortion is in fact voluntary and informed, and 
not motivated by any enticements, benefits, or financial 
considerations, and (2) there is separation between the decision and 
consent for abortion and the decision on the donation of fetal tissue, 
such that the abortion decision is not influenced by considerations 
relating to the research, including the potential contribution to 
biomedical research that could cure disease, advance understanding of 
diseases, and the like. Similarly, HHS desires to strengthen 
recipients' understanding of, and compliance with, the informed consent 
requirements and the statutory bar on the provision and receipt of 
valuable consideration for human fetal tissue by ensuring access to 
records relating to such issues for oversight purposes.
    Accordingly, the proposed rule would:
    <bullet> Require, prior to conducting research on human fetal 
tissue, that informed consent, including certain statements, be 
obtained from the pregnant woman;
    <bullet> Prohibit providing enticements, benefits, or financial 
incentives to the pregnant woman or attending physician to incentivize 
the occurrence of an abortion or human fetal tissue donation;
    <bullet> Prohibit providing valuable consideration for costs 
associated with obtaining human fetal tissue or the abortion (if any) 
that is the source of the human fetal tissue;
    <bullet> Mandate that research involving human fetal tissue from 
elective abortions can only use human fetal tissue that is acquired or 
otherwise obtained from a Government, Government-owned entities, 
university, college, accredited degree-granting institution of higher 
education, university hospital, or academic medical center;
    <bullet> Require that human fetal tissue be treated respectfully 
and disposed of reasonably when no longer to be used in research;
    <bullet> Require HHS recipients that engage in human fetal tissue 
research to provide HHS, inspectors general, and the Comptroller 
General with a right of access to all informed consent forms obtained 
for human fetal tissue research, and documents, papers, or other 
records as are necessary to establish that the

[[Page 2625]]

human fetal tissue was not obtained or transferred for valuable 
consideration and that federal funds were not used to acquire or 
otherwise obtain the human fetal tissue; and
    <bullet> Provide that expenses associated with the acquisition of 
human fetal tissue for use in research are not allowable expenses under 
Federal awards from an HHS awarding agency.
Alternatives Considered
    HHS carefully considered several alternatives, but rejected the 
potential alternatives for a number of reasons:
    <bullet> Alternative 1: Not taking any action. HHS concluded that 
this alternative was unacceptable because of the serious regulatory, 
moral and ethical considerations involved with respect to research 
involving human fetal tissue from elective abortions.
    <bullet> Alternative 2: Making no changes to 45 CFR part 46, 
subpart B or to part Part 75, but issuing guidance on (1) best 
practices for (and the elements that should be included in) informed 
consent for the donation of human fetal tissue for research, (2) the 
documentation that should be maintained with respect to compliance with 
the statutory bar on valuable consideration for the transfer of human 
fetal tissue, and (3) encouraging the practice of obtaining human fetal 
tissue by donation or non-cost material transfer agreement. HHS 
concluded that this alternative would be inadequate because the 
guidance mechanism (1) did not seem commensurate with the nature and 
seriousness of the issue and (2) may not be sufficient to permit HHS to 
conduct appropriate oversight and ensure compliance with/enforce the 
identified informed consent standards and the bar on valuable 
consideration.
    <bullet> Alternative 3: Make more limited changes to 45 CFR part 
46, subpart B and Part 75, such as by (1) requiring that, with respect 
to research involving human fetal tissue from elective abortions, HHS-
funded projects obtain informed consent for the donation of human fetal 
tissue from elective abortion, without specifying any required content 
of the informed consent document; or (2) clarifying recordkeeping and 
access requirements. HHS concluded that this alternative would be 
inadequate because, among other reasons, it would not ensure that the 
informed consent process included measures and statements to ensure 
that the informed consent was truly voluntary and truly informed and 
that no consideration or inducements had been provided for the human 
fetal tissue.
Expected Benefits and Costs of the Proposed Rule
    HHS expects several benefits from this proposed rule. The proposed 
rule would provide better assurance of compliance with federal 
statutory requirements with respect to the acquisition and use of human 
fetal tissue in research. It would better align federal and state law 
with respect to informed consent for the use of fetal tissue in 
research, and ensure the uniformity across HHS/NIH grants with respect 
to the elements of informed consent for the donation of human fetal 
tissue for research. It would strengthen the informed consent process. 
It would also strengthen HHS's ability to conduct oversight of, and 
monitor compliance on, these issues (informed consent, bar on valuable 
consideration). While maintaining, consistent with the Public Health 
Service Act, the ability of NIH to fund research involving human fetal 
tissue from abortion, this proposed rule would also ensure that--in 
light of the serious moral and ethical issues involved--the costs 
associated with such human fetal tissue would not be borne by the 
federal taxpayer.
    HHS believes that the costs associated with the proposed rule will 
be de minimis. In the main, the costs would consist of the 
administrative costs to the relevant recipients to (1) become familiar 
with the requirements of the final rule; (2) update their informed 
consent documents; and (3) update their grant policies and procedures 
(or compliance manuals) on grant record retention to reflect certain 
information retention requirements, practices concerning treatment and 
disposal of human fetal tissue, the bar on valuable consideration, and 
the unallowability of costs associated with the acquisition of human 
fetal tissue from abortion.
    Familiarization Costs. NIH is the only HHS component that funds 
grants, cooperative agreements, or R&D contracts for research involving 
human fetal tissue. Between FY 2015 and FY 2019, NIH funded between 
approximately 120 and 178 research projects involving the use of human 
fetal tissue from abortions each year, including between 15 and 55 new 
research projects per year; with NIH-funded projects usually having a 
five year project period, most such annually funded research projects 
represented renewals, revisions, extensions, or continuations. The 
entities that hold the NIH awards for such research projects include 
major colleges and universities, medical schools, academic medical 
centers, major hospitals and children's hospitals, biomedical research 
institutions and several corporations. Many of these entities hold 
multiple NIH grants, cooperative agreements, or R&D contracts for 
research involving the use of human fetal tissue. In FY 2019, there 
were a total of 71 unique institutions with active NIH awards for 
research involving human fetal tissue. Thus, to ensure that costs are 
not underestimated, for purposes of estimating the costs associated 
with this rulemaking, HHS will use 80 as the number of organizations 
that would be affected by this proposed rule. Given the size and 
sophistication of these entities, the task of familiarization would 
likely fall to the equivalent of a lawyer in the entities' law 
departments. According to the U.S. Bureau of Labor Statistics,\51\ 
lawyers have a mean hourly rate of $69.86. HHS assumes that the total 
dollar value of labor, which includes wages, benefits, and overhead, is 
equal to 200% of the wage rate, or $139.72. The changes proposed in the 
proposed rule are straightforward and easy to understand. Accordingly, 
HHS estimates that it would take a recipient approximately an hour to 
become familiar with the requirements if the proposed rule is finalized 
as proposed. HHS, thus, concludes that the total cost for recipient 
familiarization with such a final rule would total $11,177.60 ($139.72 
x 80).
---------------------------------------------------------------------------

    \51\ U.S. Bureau of Labor Statistics, May 2019 National 
Occupational Employment and Wage Estimates United States, available 
at https://www.bls.gov/oes/current/oes_nat.htm.
---------------------------------------------------------------------------

    Informed Consent and Informed Consent Forms. As noted above, since 
not later than 2016, NIH has conveyed to researchers working with human 
fetal tissue that receive NIH grants for such research that (1) NIH-
funded research involving human fetal tissue must be conducted in 
compliance with all applicable federal, state, and local laws and 
regulations; \52\ (2) most states require informed consent for the use 
of fetal tissue in research; and (3) NIH expects informed consent to 
have been obtained from the donor for any NIH-funded research using 
human fetal tissue. See NOT-OD-16-033; NIH Grants Policy Statement, 
Sec. 4.1.14. Recently, NIH informed grantees, contractors, and 
applicants that it expects such informed consent forms to contain 
certain statements that are consistent with the statements proposed in 
this proposed rule. See NOT-OD-19-128. In addition, the AMA has 
indicated, through its 2016 Code of Ethics Opinion, that physicians who 
are involved in research that uses human fetal tissue should, in all 
instances,

[[Page 2626]]

obtain the woman's voluntary, informed consent. Although there is 
currently no express requirement for such informed consent, based on 
the foregoing, it is HHS's understanding that informed consent is 
generally obtained from the donor for NIH-funded research involving 
human fetal tissue. HHS assumes that recipients have an informed 
consent form that they use or require their contractors to use in 
obtaining the informed consent to the donation of human fetal tissue. 
Accordingly, the only costs HHS expects that recipients would incur 
associated with the proposed informed consent requirements would be the 
costs to update such forms. Such a task would again likely fall to the 
equivalent of a lawyer in the entities' law departments. According to 
the U.S. Bureau of Labor Statistics,\53\ lawyers have a mean hourly 
rate of $69.86. HHS assumes that the total dollar value of labor, which 
includes wages, benefits, and overhead, is equal to 200% of the wage 
rate, or $139.72. The informed consent requirements in the proposed 
rule are straightforward and easy to understand--and HHS has provided 
sample informed consent form provisions. Accordingly, HHS estimates 
that it would take a recipient approximately an hour to update its 
informed consent for the donation of human fetal tissue from elective 
abortion for research. HHS, thus, concludes that the costs likely to be 
incurred to update informed consent forms as a result of the proposed 
informed consent requirements (proposed Sec. Sec.  46.204(k) and 
46.206(g)) would total $11,177.60 ($139.72 x 80).
---------------------------------------------------------------------------

    \52\ See 45 CFR 46.206(a).
    \53\ U.S. Bureau of Labor Statistics, May 2019 National 
Occupational Employment and Wage Estimates United States, available 
at https://www.bls.gov/oes/current/oes_nat.htm.
---------------------------------------------------------------------------

    Although HHS believes that most, if not all, recipients of NIH 
awards for research involving human fetal tissue have processes in 
place to obtain informed consent for the donation of human fetal tissue 
for research, HHS recognizes that some may not conduct a process to 
obtain informed consent for the donation that is separate and 
independent from the process to obtain informed consent for the 
abortion. As set forth in greater detail in the Paperwork Reduction Act 
section of this regulatory impact analysis, and using NIH intramural 
data as a proxy, HHS estimates that, on an annual basis, each research 
project would need to conduct the informed consent process for the 
donation of human fetal tissue an average of 8 times, in order to 
obtain the amount of human fetal tissue needed for each research 
project, for a total of 1,059.2 informed consent processes per year. 
Assuming the informed consent process requires 10-15 minutes of a 
registered nurse's time, this results in a total of between 176.89 and 
264.8 burden hours per year for the separate and independent informed 
consent process, or between $13,174.77 and $19,722.30 in total annual 
costs. This suggests a total annual burden of between 2.21 and 3.31 
hours per unique recipient, and cost on an annual basis (undiscounted) 
for each unique recipient of between $164.68 and $246.53 for a separate 
and independent informed consent process for the donation of human 
fetal tissue for research.\54\
---------------------------------------------------------------------------

    \54\ As noted below, in that section, HHS believes that most, if 
not all, recipients obtain informed consents for the donation of 
human fetal tissue for research and that many recipients utilize or 
require the utilization of a separate and independent informed 
consent process. Accordingly, these estimates represent HHS's 
estimate of the total cost of a separate and independent informed 
consent process on an annual basis, not the likely incremental costs 
resulting from this proposed rule. However, HHS will use these costs 
for simplicity of analysis in this proposed rule.
---------------------------------------------------------------------------

    Prohibitions on Valuable Consideration. The proposed substantive 
prohibitions on valuable consideration in proposed Sec.  46.206(c)-(f) 
merely reiterate current statutory requirements with respect to the 
provision or receipt of valuable consideration associated with the 
transfer of human fetal tissue. Accordingly, HHS does not believe that 
recipients would incur any additional or incremental costs as a result 
of these proposed requirements.
    Disposal of Human Fetal Tissue. It is HHS's understanding that the 
proposed requirement for the respectful treatment and disposal of human 
fetal tissue when such tissue is no longer needed for research 
(proposed Sec.  46.206(i)) is consistent with good clinical practice on 
the part of researchers. Accordingly, HHS believes that recipients 
would incur de minimis costs, if any, as a result of this proposed 
requirement.
    Updating of Policies and Procedures (or Manuals). HHS would 
classify, as grant administration requirements, the proposed 
requirements on the sourcing of human fetal tissue for research; on 
access to grant-related information pertaining to informed consent, 
valuable consideration, and use of grant funds; and on the 
unallowability of costs associated with the acquisition of human fetal 
tissue (proposed Sec. Sec.  46.206(h), 75.364(a), and 75.478). It is 
HHS's understanding that requirements such as these proposed 
requirements are generally reflected in the grant administration or 
compliance policies and procedures (or manuals) that are maintained by 
recipients of the size and sophistication of those that tend to receive 
NIH grants for research involving human fetal tissue--and that 
recipient personnel tend to consult such documents in connection with 
their activities. Accordingly, HHS believes that the only costs that 
recipients would incur as a result of these proposed requirements would 
likely be associated with the updating of such policies and procedures 
(or manuals). Given the size and sophistication of these entities, the 
task of familiarization would likely fall to the equivalent of a lawyer 
in the entities' law departments or a compliance officer in their 
compliance offices. According to the U.S. Bureau of Labor Statistics, 
lawyers have a mean hourly rate of $69.86,\55\ and compliance officers 
have a mean hourly rate of $35.03.\56\ HHS assumes that the total 
dollar value of labor, which includes wages, benefits, and overhead, is 
equal to 200% of the wage rate, or $139.72 for lawyers, and $70.06 for 
compliance officers. HHS believes that the updating of such documents 
would likely take a total of two hours--and assumes that half of the 
work would be completed by compliance officers and half would be 
completed by lawyers. Accordingly, HHS estimates that the total cost 
incurred by recipients as a result of the proposed requirements would 
be $16,782.40 (($139.72 + $70.06) x 80).
---------------------------------------------------------------------------

    \55\ U.S. Bureau of Labor Statistics, May 2019 National 
Occupational Employment and Wage Estimates United States, available 
at https://www.bls.gov/oes/current/oes_nat.htm.
    \56\ U.S. Bureau of Labor Statistics, May 2019 National 
Occupational Employment and Wage Estimates United States, available 
at https://www.bls.gov/oes/current/oes131041.htm.
---------------------------------------------------------------------------

    Records and Access to Records and Personnel. HHS proposes to amend 
its current provision requiring awardees to provide access to records 
relating to a recipient's award to specify that recipients of awards 
for research involving human fetal tissue would need to provide access 
on the part of HHS, the Inspector General, GAO, and others, to specific 
grant-related information. All of the information that is specifically 
referenced in proposed Sec.  75.364(a)(1) is already subsumed within 
the existing Sec.  75.364(a). Accordingly, HHS does not believe that 
the proposed records access requirements would add any incremental 
burden.
    Acquisition of Human Fetal Tissue. HHS proposes to limit the 
sources from which HHS recipients for research involving human fetal 
tissue can obtain human fetal tissue from abortion and to

[[Page 2627]]

preclude the inclusion of any expenses associated with the acquisition 
of human fetal tissue from elective abortion in allowable costs that 
could be charged against HHS award funds. The proposed limitation on 
the sources of human fetal tissue from abortion should not have any 
impact on the costs associated with the acquisition of such tissue 
because the statutory bar on the provision of valuable consideration in 
connection with the transfer of human fetal tissue provides a statutory 
limit on the ability of tissue procurement organizations and other 
organizations to seek to take advantage of such a regulatory limitation 
to exact higher consideration. To the extent that recipients currently 
incur permissible costs associated with the acquisition of human fetal 
tissue from elective abortions, HHS acknowledges that the proposal to 
exclude human fetal tissue from elective abortion from allowable costs 
under HHS research grants, cooperative agreements, and R&D contracts 
would effect a transfer of costs from HHS (through its awards) to the 
recipients of such research awards. Prior to NIH's July 2019 notice, 
recipients had not been required to separately identify or account for 
such expenditures of award funds, so HHS and NIH do not have complete 
data on the expenses incurred by awardees with respect to the 
acquisition of human fetal tissue from elective abortions. Accordingly, 
HHS uses the costs incurred by intramural NIH researchers to acquire 
human fetal tissue from elective abortions as a proxy. During the HHS 
review and audit, it reviewed NIH documentation with respect to 
intramural research involving human fetal tissue and the expenditures 
made to acquire such tissue in fiscal year (FY) 2018; NIH also provided 
information concerning intramural projects involving human fetal 
tissue, and the expenditures made with respect to them, in FY 2015. In 
FY 2015, intramural researchers incurred a total of $26,915 in the 
acquisition of such tissue across 14 research projects, for an average 
expenditure of $1,922.50 per project. And in FY 2018, intramural 
researchers incurred a total of approximately $55,195 to acquire human 
fetal tissue across approximately 12 research projects, for an average 
expenditure of $4,599.58 per project. Across the two fiscal years, the 
average annual expenditure for fetal tissue per project was, thus, 
$3,261.04. Assuming that award recipients needed to acquire human fetal 
tissue for each project each year--an assumption that would tend to 
overestimate costs \57\--this would suggest transfer costs of $3,261.04 
per project per year, for a total annual cost of $431,761.70 and an 
average annual cost per unique recipient of $5,397.02 (132.4 projects x 
$3,261.04 cost per project per year/80 unique recipients).\58\
---------------------------------------------------------------------------

    \57\ It is likely that researchers do not need to obtain human 
fetal tissue for their HHS-funded research projects annually. In 
addition, it is likely that some researchers and projects obtained 
such tissue through no-cost material transfer agreements. However, 
since HHS lacks knowledge as to how often funded research projects 
would need to obtain such tissue or how much would need to be 
expended to acquire such tissue--and the frequency and expense could 
vary from project to project--for purposes of the analysis of the 
regulatory impact of this proposed rule, HHS will assume that each 
project has to acquire human fetal tissue from abortion on an annual 
basis.
    \58\ If only new research projects need to acquire fetal tissue 
from elective abortions, this would suggest total transfer costs of 
$92,613.54 per year, and an average annual cost per unique recipient 
of $1,157.67 (28.4 projects x $3,261.04 cost per project per year/80 
unique recipients).
    HHS notes that in FYs 2015 and 2018, the largest expenditure by 
an intramural research project for fetal tissue was $21,400 and 
$25,785, respectively, for an average of $23,592.50. Even if this 
number is used as the proxy for the annual expense that the 
recipient of an award for research involving human fetal tissue 
might incur to acquire such tissue--and it is assumed that every 
research project would incur such expenditures each year--this only 
results in a total annual expenditure of $3,123,647 ($23,592.50 x 
132.4 projects), and an average annual cost per unique recipient of 
$39,045.59 (132.4 projects x $23,592.50/80 unique recipients).
---------------------------------------------------------------------------

    Except for the potential costs of the separate informed consent 
process and the acquisition of human fetal tissue from elective 
abortions, these costs would be one-time costs that would be 
experienced in the first year of implementation. Accordingly, if all 
recipients that receive HHS funds for research involved human fetal 
tissue were to implement the proposed requirements,\59\ HHS estimates 
that these proposed requirements if finalized as proposed would impose 
first year costs (including both one-time costs and annual cost of the 
informed consent process and the acquisition of fetal tissue) totaling 
between $484,074.07 and $490,621.60, with cost per unique recipient of 
between $6,050.92 and $6,132.77. Thereafter, there would be total 
annual costs (undiscounted) of $444,936.47 to $451,484 and $5,561.70 to 
$5,643.55 per unique recipient (again, undiscounted).\60\
---------------------------------------------------------------------------

    \59\ If recipients have already acquired all of the human fetal 
tissue needed for the funded research--which could be the case 
especially for those organizations that have received grant 
renewals, revisions, extensions, or continuations--they may conclude 
that they do not need to undertake any action associated with some 
of the proposed requirements. This would reduce the costs that such 
recipients would incur to implement any final rule resulting from 
this proposed rule.
    \60\ If the average of the highest annual intramural 
expenditures for fetal tissue is used to calculate the annual 
expenditure to acquire fetal tissue, the total first year costs 
(including both one-time and annual costs of fetal tissue 
acquisition) would range from $3,175,959.37 to $3,182,506.90, with 
total first year costs per unique recipient ranging between 
$39,699.49 and $39,781.65 Thereafter, total annual costs 
(undiscounted) would total $3,136,821.77 to $3,143,369.30, with 
annual costs (undiscounted) of $39,210.27 to $39,292.12 per unique 
recipient.
---------------------------------------------------------------------------

Executive Order 13771

    The White House issued Executive Order 13771 on Reducing Regulation 
and Controlling Regulatory Costs on January 30, 2017. Section 2(a) of 
Executive Order 13771 requires an agency, unless prohibited by law, to 
identify at least two existing regulations to be repealed when the 
agency publicly proposes for notice and comment or otherwise 
promulgates a new regulation. In furtherance of this requirement, 
section 2(c) of Executive Order 13771 requires that the new incremental 
costs associated with new regulations shall, to the extent permitted by 
law, be offset by the elimination of existing costs associated with at 
least two prior regulations. This rule, while significant under 
Executive Order 12866, will impose de minimis costs and, therefore, is 
not anticipated to be a regulatory or deregulatory action under 
Executive Order 13771. HHS's human subjects protection regulations 
permit HHS-funded or conducted research involving human fetal tissue to 
be conducted only in accord with any applicable Federal, State, or 
local laws and regulations regarding such activities. Current federal 
law and regulations require informed consent for human fetal tissue 
transplantation research and research with human fetal tissue with 
associated information that can identify a human being. In addition, 
most states require informed consent for the use of fetal tissue in 
research--and NIH has indicated that it expects informed consent to 
have been obtained from the donor for any NIH-funded research using 
human fetal tissue. As a result, HHS expects that HHS recipients 
conducting such research would incur only de minimis costs to become 
familiar with the regulation, to update their informed consent forms to 
include the specific statements proposed in this proposed rule, to 
obtain the necessary informed consents, to properly dispose of human 
fetal tissue, and to update their grants policies and procedures (or 
compliance manuals). Federal law already prohibits the transfer of 
human fetal tissue for valuable consideration, and federal regulation 
gives HHS the right of access to any documents, papers, or other 
records of Department recipients which are pertinent to the

[[Page 2628]]

award. Public comments will inform the ultimate designation of this 
rule.

Regulatory Flexibility Act

    HHS has examined the economic implications of this proposed rule as 
required by the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612). 
The RFA requires an agency to describe the impact of a proposed 
rulemaking on small entities by providing an initial regulatory 
flexibility analysis unless the agency expects that the proposed rule 
will not have a significant impact on a substantial number of small 
entities, provides a factual basis for this determination, and proposes 
to certify the statement. 5 U.S.C. 603(a), 605(b). If an agency must 
provide an initial regulatory flexibility analysis, this analysis must 
address the consideration of regulatory options that would lessen the 
economic effect of the rule on small entities. For purposes of the RFA, 
small entities include proprietary firms meeting the size standards of 
the Small Business Administration (SBA); \61\ nonprofit organizations 
that are not dominant in their fields; and small governmental 
jurisdictions with populations of less than 50,000. 5 U.S.C. 601(3)-
(6). HHS considers a rule to have a significant impact on a substantial 
number of small entities if it has at least a three percent impact on 
revenue on at least five percent of small entities.
---------------------------------------------------------------------------

    \61\ In the health care sector, from which the Department draws 
many of its biomedical research recipients, SBA considers businesses 
to be small by virtue of having less than between $8.0 million and 
$41.5 million in average annual revenues, depending on the 
particular type of business. See U.S. Small Business Administration, 
Table of Small Business Size Standards Matched to North American 
Industry Classification System Codes, effective August 19, 2019 
(sector 62), available at https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019%2C%202019_Rev.pdf. Inasmuch as colleges, universities and professional schools 
(e.g., medical schools) and other educational institutions may also 
receive Department funding to conduct biomedical research, the other 
sector from which the Department may draw recipients is the 
educational services sector, where the relevant small business sizes 
range from $12.0 million to $30.0 million in annual revenues. Id. 
(sector 61).
---------------------------------------------------------------------------

    Executive Order 13272 on Proper Consideration of Small Entities in 
Agency Rulemaking reinforces the requirements of the RFA and requires 
HHS to notify the Chief Counsel for Advocacy of the Small Business 
Administration if the final rule may have a significant economic impact 
on a substantial number of small entities under the RFA. Executive 
Order 13272, 67 FR 53461 (Aug. 16, 2002).
    As discussed, the proposed rule would
    <bullet> Require, prior to conducting research on human fetal 
tissue, that informed consent be obtained from the pregnant woman;
    <bullet> Prohibit providing enticements, benefits, or financial 
incentives to the pregnant woman or attending physician to incentivize 
the occurrence of an abortion or human fetal tissue donation;
    <bullet> Prohibit providing valuable consideration for costs 
associated with obtaining human fetal tissue or the abortion (if any) 
that is the source of the human fetal tissue;
    <bullet> Mandate that research involving human fetal tissue from 
elective abortions can only use such human fetal tissue that is 
acquired or otherwise obtained from a Government, a Government-owned 
entity, university, college, accredited degree-granting institution of 
higher education, university hospital, or academic medical center;
    <bullet> Require that human fetal tissue be treated respectfully 
and disposed of reasonably when no longer to be used in research;
    <bullet> Require HHS recipients that engage in human fetal tissue 
research to provide HHS, inspectors general, and the Comptroller 
General with a right of access to all informed consent forms obtained 
for human fetal tissue research, and documents, papers, or other 
records as are necessary to establish that the human fetal tissue was 
not obtained or transferred for valuable consideration and that federal 
funds were not used to acquire or otherwise obtain the human fetal 
tissue; and
    <bullet> Provide that expenses associated with the acquisition of 
human fetal tissue from elective abortion for use in research are not 
allowable expenses under Federal awards from an HHS awarding agency.
    NIH is the only HHS component the funds grants, cooperative 
agreements, or R&D contracts for research involving human fetal tissue. 
Between FY 2015 and FY 2019, NIH funded between approximately 120 and 
178 research projects involving the use of human fetal tissue from 
abortions each year, including between 15 and 55 new research projects 
per year; with NIH-funded projects usually having a five year project 
period, most such annually funded research projects represented 
renewals, revisions, extensions, or continuations. The entities that 
hold the NIH awards for such research projects include major colleges 
and universities, medical schools, academic medical centers, major 
hospitals and children's hospitals, biomedical research institutions 
and several corporations. Many of these entities hold multiple NIH 
grants, cooperative agreements, or R&D contracts for research involving 
the use of human fetal tissue; in FY 2019, there were a total of 71 
unique institutions with active NIH awards for research involving human 
fetal tissue.\62\
---------------------------------------------------------------------------

    \62\ In the regulatory impact analyses, HHS is using 80 as the 
number of unique organizations that would be affected by the 
proposed rule, to ensure that costs are not underestimated.
---------------------------------------------------------------------------

    Even if all of the entities that receive such NIH awards were 
considered small entities by virtue of their size or nonprofit 
status,\63\ the proposed rule would not have a serious impact on a 
significant number of small entities. The proposed rule would not 
impose significant burdens not already imposed by federal or state law. 
As discussed above, if the proposed rule is finalized as proposed, each 
unique NIH awardee would likely experience, at most, first year costs 
(including both one-time costs, the cost of the separate informed 
consent process for the donation of human fetal tissue, and the cost of 
acquiring fetal tissue) totaling between $6,050.92 and $6,132.77, 
associated with the incremental burden of the requirements proposed in 
this proposed rule and, thereafter, $5,561.70 to $5,643.55 per year in 
expenses for the separate informed consent process and for unreimbursed 
expenses to acquire fetal tissue for the research.\64\ As noted above, 
the entities that hold the NIH awards for such research projects 
include major colleges and universities, medical schools, academic 
medical centers, major hospitals and children's hospitals, biomedical 
research institutions and several corporations. These entities 
generally correspond to the following North American Industry 
Classification (NAIC) codes and small entity size guidelines: \65\
---------------------------------------------------------------------------

    \63\ Some of the entities receiving NIH awards for research 
involving the use of human fetal tissue are public colleges or 
universities that may be considered components of state governments 
and, thus, not small entities for purposes of RFA. Similarly, some 
of the entities are major private colleges or universities, medical 
schools, academic medical centers, or hospitals that may be 
nonprofit organizations that are considered dominant in their fields 
and, thus, also not small entities for purposes of RFA.
    \64\ If the average of the highest annual intramural 
expenditures for fetal tissue is used to calculate the annual 
expenditure to acquire fetal tissue, the first year costs (including 
both one-time and annual costs of fetal tissue acquisition) per 
unique recipient would range between $39,699.49 and $39,781.65. 
Thereafter, annual costs (undiscounted) would total $39,210.27 and 
$39,292.12 per unique awardee, associated with the costs of the 
separate informed consent process and of acquiring human fetal 
tissue.
    \65\ See https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019%2C%202019_Rev.pdf.

[[Page 2629]]



----------------------------------------------------------------------------------------------------------------
                                                                                                   3% impact on
                   Industry                        NAIC code       Small entity size guideline        revenue
----------------------------------------------------------------------------------------------------------------
Colleges, Universities and Professional                 611310  $30 million in annual revenue...        $900,000
 Schools.
HMO Medical Centers...........................          621491  $35 million in annual revenue...       1,050,000
General Medical and Surgical Hospitals........          622110  $41.5 million in annual revenue.       1,245,000
Specialty (except Psychiatric and Substance             622310  $41.5 million in annual revenue.       1,245,000
 Abuse) Hospitals.
Research and Development in the Physical,               541715  1,000 employees.................  ..............
 Engineering and Life Sciences (except
 Nanotechnology and Biotechnology).
----------------------------------------------------------------------------------------------------------------

    As noted above, HHS considers a rule to have a significant impact 
on a substantial number of small entities if it has at least a three 
percent impact on revenue on at least five percent of small entities. 
The estimated potential impact on recipients of HHS/NIH awards for 
research involving human fetal tissue is significantly lower than three 
percent of the annual revenues of small entities in the relevant 
industries. Thus, HHS anticipates that this rulemaking, if finalized, 
would have minimal economic impact--and would not have a significant 
impact on a substantial number of small entities. HHS anticipates that 
the information disclosures that would be required by the rule would, 
to the extent they would result in a change from current practice, 
allow affected individuals to make better informed decisions and allow 
affected entities to better deploy resources in line with established 
requirements for HHS recipients. As a result, HHS has determined, and 
the Secretary certifies, that this proposed rule would not have a 
significant impact on a substantial number of small entities.
    HHS seeks comment on this analysis of the impact of the proposed 
rule on small entities, and the assumptions that underlie this 
analysis.

Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1532) requires that covered agencies prepare a budgetary impact 
statement before promulgating a rule that includes any Federal mandate 
that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million in 1995 dollars, updated annually for inflation. Currently, 
that threshold is approximately $154 million. If a budgetary impact 
statement is required, section 205 of the Unfunded Mandates Act also 
requires covered agencies to identify and consider a reasonable number 
of regulatory alternatives before promulgating a rule. HHS has 
determined that this proposed rule will not result in expenditures by 
State, local, and tribal governments, or by the private sector, of $154 
million or more in any one year. Accordingly, HHS has not prepared a 
budgetary impact statement or specifically addressed the regulatory 
alternatives considered.

Executive Order 13132--Federalism

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct requirement costs on State and local governments or has 
federalism implications. Executive Order 13132, 64 FR 43255 (Aug. 10, 
1999). HHS does not believe that this proposed rule would (1) impose 
substantial direct requirements costs on State or local governments; 
(2) preempt State law; or (3) otherwise have Federalism implications. 
Thus, the Department has determined that this proposed rule does not 
impose such costs or have any Federalism implications.
    Executive Order 12866 directs that significant regulatory actions 
avoid undue interference with State, local, or tribal governments, in 
the exercise of their governmental functions. Executive Order 12866 at 
6(a)(3)(B). Executive Order 13175 further directs that agencies respect 
Indian tribal self-government and sovereignty, honor tribal treaty and 
other rights, and strive to meet the responsibilities that arise from 
the unique legal relationship between the Federal Government and Indian 
tribal governments. Executive Order 13175 at 2(a). HHS does not believe 
that the proposed rule would implicate the requirements of Executive 
Orders 12866 and 13175 with respect to tribal sovereignty.
    The proposed rule would add specificity to federal and state law 
requirements with respect to informed consent for the donation of human 
fetal tissue for HHS-funded or conducted research and to federal law 
requirements on the maintenance of documentation with respect to 
compliance with federal law on informed consent and the bar on the 
receipt of valuable consideration for human fetal tissue. Some HHS 
grants for research involving human fetal tissue may be held by state 
colleges or universities. However, HHS anticipates that the proposed 
rule would have only minimal impacts on such state colleges and 
universities. Therefore, HHS has determined that this proposed rule 
would not have sufficient Federalism implications to warrant the 
preparation of a Federalism summary impact statement under Executive 
Order 13132, and that the rule would not implicate the requirements of 
Executive Orders 12866 and 13175 with respect to tribes.

Congressional Review Act

    Title E of the Small Business Regulatory Fairness Enforcement Act 
of 1996, also known as the Congressional Review Act, defines a ``major 
rule'' as ``any rule that the Administrator of the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget finds has resulted in or is likely to result in--(A) an 
annual effect on the economy of $100,000,000 or more; (B) a major 
increase in costs or prices for consumers, individual industries, 
federal, State, or local government agencies, or geographic regions; or 
(C) significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.'' 5 U.S.C. 804(2). Based on the analysis of this 
proposed rule under Executive Order 12866, OMB has determined that this 
proposed rule would not likely to result in an annual effect of 
$100,000,000 or more, and would not otherwise be a major rule for 
purposes of the Congressional Review Act.

Assessment of Federal Regulation and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal departments and agencies to determine 
whether a proposed policy or regulation could affect family well-
being.\66\ If the

[[Page 2630]]

determination is affirmative, then the department or agency must 
prepare an impact assessment to address criteria specified in the 
law.\67\ HHS has determined that these proposed regulations would not 
have an impact on family well-being, as defined in the Act.
---------------------------------------------------------------------------

    \66\ Public Law 105-277, Div. A, Sec.  654, 112 Stat. 2681-480, 
2681-528 (Oct. 21, 1998), codified at 5 U.S.C. 601 note.
     Before implementing regulations that may affect family well-
being, an agency is required to assess the actions as to whether the 
action
    (1) strengthens or erodes the stability or safety of the family 
and, particularly, the marital commitment;
    (2) strengthens or erodes the authority and rights of parents in 
the education, nurture, and supervision of their children;
    (3) helps the family perform its functions, or substitutes 
governmental activity for the function;
    (4) increases or decreases disposable income or poverty of 
families and children;
    (5) action's proposed benefits justify the financial impact on 
the family;
    (6) may be carried out by State or local government or by the 
family; and
    (7) establishes an implicit or explicit policy concerning the 
relationship between the behavior and personal responsibility of 
youth, and the norms of society.
    5 U.S.C. 601 (note).
    \67\ If a regulation may affect family well-being, the head of 
the agency is required to submit a written certification to the 
director of OMB and to Congress that the regulation has been 
assessed and to provide an adequate rationale for implementation of 
a regulation that may negatively affect family well-being. Id.
---------------------------------------------------------------------------

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA), as amended (44 
U.S.C. 3501-3520), agencies are required to provide a 60-day notice in 
the Federal Register and solicit public comment before a collection of 
information requirement is submitted to the Office of Management and 
Budget (OMB) for review and approval. In order to fairly evaluation 
whether an information collection should be approved by OMB, section 
3506(c)(2)(A) of the PRA requires that agencies solicit comment on (1) 
whether the information collection is necessary and useful to carry out 
the proper functions of the agency; (2) the accuracy of the agency's 
estimate of burden of the proposed collection of information; (3) the 
quality, utility, and clarity of the information to be collected (and 
ways to enhance the same); and (4) recommendations to minimize the 
burden of the collection of information on respondents, including 
through the use of automated collection techniques, when appropriate, 
and other forms of information and technology.
    In accordance with these requirements, HHS is soliciting public 
comments on the following proposed requirements that may implicate the 
PRA. These proposed collection of information requirements relate to 
the proposal to require informed consent for the donation of human 
fetal tissue for research (45 CFR 46.204(k), 46.206(g)) and the 
proposal to expressly require access to certain records (45 CFR 
75.364(a)(1).
    Informed Consent for the Donation of Human Fetal Tissue. HHS 
proposes to require, among other things, that (1) informed consent for 
the donation of human fetal tissue for research purposes be obtained 
from the woman; (2) the informed consents contain certain specific 
statements and be signed by both the woman and the person obtaining the 
informed consent; and (3) the informed consent for donation be obtained 
after the abortion decision has been made and informed consent has been 
provided for the abortion and person obtaining the informed consent be 
someone other than the person who obtains the informed consent for the 
abortion procedure. Current federal human subjects protection 
regulations at 45 CFR 46.206 requires that HHS-funded research 
involving human fetal tissue be conducted only in accord with any 
applicable federal, state, or local laws and regulations. As noted 
above in more detail, (1) most states require informed consent for the 
use of fetal tissue in research; (2) since early 2016, NIH has 
expressed the expectation that ``informed consent to have been obtained 
from the donor for any NIH-funded research using human fetal tissue;'' 
\68\ and (3) an AMA Ethics Opinion, issued in June 2016, indicates that 
``physicians who are involved in research that uses human fetal tissues 
should . . . [i]n all instances, obtain the woman's voluntary, informed 
consent in keeping with ethics guidance. . . .'' \69\ Accordingly, HHS 
believes that all entities receiving NIH funding for research involving 
the use of human fetal tissue have an informed consent form for the 
donation of human fetal tissue and that such informed consent is being 
obtained in most, if not all, instances.
---------------------------------------------------------------------------

    \68\ See NIH Policy on Informed Consent for Human Fetal Tissue 
Research, NOT-OD-16-033 (Feb. 11, 2016), available at https://grants.nih/gov/grants/guide/notice-files/not-od-16-033.html; October 
2018 NIH Grants Policy Statement, Section 4.1.14, available at 
https://grants.nih/gov/grants/policy/nihgps/html5/section_4/4.1.14_human_fetal_tissue_research.htm.
    \69\ AMA Code of Medical Ethics Opinion 7.3.5, available at 
https://www.ama.assn.org/delivering-care/ethics/research-using-human-fetal-tissue.
---------------------------------------------------------------------------

    HHS recognizes that it proposes to require certain specific 
statements in the informed consents that may not currently be contained 
in such informed consent forms. Above, HHS estimated that it would take 
each recipient approximately one hour of attorney time to update its 
informed consent form for the donation of human fetal tissue from 
elective abortion.\70\ Thus, HHS estimated 80 burden hours at 200% of 
the wage rate for an attorney, or a total of $11,177.60.
---------------------------------------------------------------------------

    \70\ In that regard, HHS proposes to provide sample informed 
consent form provisions for voluntary use by recipients in an 
appendix to this preamble. To the extent that recipients used the 
sample informed consent form provisions, it would tend to reduce 
burden on recipients.
---------------------------------------------------------------------------

    HHS estimates that an informed consent process for the donation of 
human fetal tissue that is independent of, and separate from, the 
process of obtaining informed consent for the abortion procedure might 
take between 10 and 15 minutes per informed consent. HHS expects that a 
nurse would be assigned to obtain the informed consents. Mean hourly 
wages for nurses range from $23.32 for licensed practical nurses to 
$53.77 for nurse practitioners. HHS believes that it is likely that 
such tasks would be assigned to registered nurses. According to the 
Bureau of Labor Statistics,\71\ registered nurses have a mean hourly 
rate of $37.24. HHS assumes that the total dollar value of labor, which 
includes wages, benefits, and overhead, is equal to 200% of the wage 
rate, or $74.48. HHS does not have information on the number of times 
informed consent would need to be sought, in order to obtain the 
donation of human fetal tissue necessary on an annual basis for 
extramural research projects. Accordingly, HHS uses the likely number 
of informed consents that would have been necessary with respect to the 
human fetal tissue acquired by intramural NIH researchers for 
intramural research projects, using the number of human fetuses from 
which tissue was obtained as a further proxy for the number of informed 
consents. During the HHS review and audit, it reviewed NIH 
documentation with respect to the acquisition of human fetal tissue for 
intramural research projects in FY 2018; NIH also provided information 
concerning on-going intramural research projects invoIving human fetal 
tissue. In FY 2018, intramural researchers engaged in approximately 12 
intramural research projects involving human fetal tissue, and acquired 
human fetal tissue from approximately 45 fetuses, for an average of 
3.75 per project. Accordingly, HHS proposes to estimate that, on an 
annual basis, each research project involving human fetal tissue would 
need to obtain an average of 4 informed consents for donation of human 
fetal tissue, for a total of 529.6 informed

[[Page 2631]]

consents (4 x 132.4, the average number of extramural research projects 
involving human fetal tissue). HHS recognizes that not every woman who 
is asked to donate human fetal tissue would agree; accordingly, HHS 
will estimate that the informed consent process would need to be 
conducted an average of 8 times per project in order to obtain the 
necessary human fetal tissue. On an annual basis, this results in a 
total of between 176.89 and 264.8 burden hours for a separate and 
independent informed consent process for the donation of human fetal 
tissue, for a total of between $13,174.77 and $19,722.30. This suggests 
a total annual burden of between 2.21 and 3.31 hours per unique 
recipient, and cost on an annual basis (undiscounted) for each unique 
recipient of between $164.68 and $246.53 for a separate and independent 
informed consent process for the donation of human fetal tissue for 
research.
---------------------------------------------------------------------------

    \71\ U.S. Bureau of Labor Statistics, May 2019 National 
Occupational Employment and Wage Estimates United States, available 
at https://www.bls.gov/oes/current/oes291141.htm.
---------------------------------------------------------------------------

    This would represent the collection of information burden 
associated with the proposed informed consent requirements if no 
recipients of NIH funding for research involving human fetal tissue 
were otherwise obtaining such informed consents. However, as discussed 
in greater detail above, because of the state law requirements, the 
previous NIH policy statements, and the AMA Ethics Opinion, as well as 
the size and sophistication of such NIH recipients, HHS believes that 
most, if not all, recipients obtain informed consents. Furthermore, the 
AMA Ethics Opinion emphasized that physicians engaged in research that 
uses human fetal tissue should ensure that ``[t]he woman's decisions to 
terminate the pregnancy is made prior to and independent of any 
discussion of using the fetal tissue for research purposes,'' which 
suggests that the process to discuss, and obtain informed consent for, 
donation of human fetal tissue for research purposes should be separate 
from and independent of the informed consent for the abortion, and 
NIH's Changes to NIH Requirements Regarding Proposed Human Fetal Tissue 
Research. NOT-OD-19-128, indicated that NIH expected that the informed 
consent for donation of human fetal tissue would be obtained by someone 
other than the person who obtained the informed consent for the 
abortion and would occur after the informed consent for abortion. Based 
on the foregoing, HHS estimates that 80% to 100% of NIH's recipients 
obtain informed consent for the donation of human fetal tissue and that 
50% of such recipients already require a separate and independent 
informed consent process for the donation of human fetal tissue, 
utilizing different personnel from, and occurring after, the informed 
consent to the abortion. These estimates would suggest that (1) 40 
recipients would not experience any additional burden from the proposed 
informed consent provisions because they are already using a separate 
informed consent process for donation of human fetal tissue; (2) up to 
20% (or 16 recipients) might experience the full per-recipient burden 
identified above as a result of the proposed requirements because they 
are not conducting any informed consent process; and (3) at least 30% 
(or 24 recipients) would experience some burden because they would need 
to divide their current informed consent process into two processes. 
For example, the informed consent for donation of human fetal tissue, 
when combined with the informed consent for abortion, may take a 
shorter period of time as compared to two separate and independent 
processes because of the need to repeat certain information in the 
second process. However, there could be some cost savings if the health 
care provider conducting the informed consent for the donation of human 
fetal tissue was paid at a low hourly rate than the health care 
provider conducting the informed consent for the abortion.
    Access to certain records. HHS proposes expressly to require that 
recipients provide access to informed consent forms for research 
involving human fetal tissue and such records as are necessary to 
establish that such tissue was not obtained or transferred for valuable 
consideration and that federal funds were not used to acquire or 
otherwise obtain human fetal tissue. HHS believes that this merely 
makes express recipients' current recordkeeping and access obligations. 
HHS's grants regulations currently require that recipients provide 
access to the recipient's records pertinent to the federal award. 45 
CFR 75.364; see also 2 CFR 200.337 (OMB uniform administrative 
requirements). NIH has made its expectations on maintenance and access 
to records regarding NIH-funded research involving human fetal tissue 
clear: For example, in NIH Policy on Informed Consent for Human Fetal 
Tissue Research,\72\ NIH stated that, `[w]hen obtaining primary human 
fetal tissue for research purposes, NIH expects grantees and 
contractors to maintain appropriate documentation . . . that informed 
consent was obtained at the time of tissue collection''; such ``policy 
will be included in the terms and conditions of grant and cooperative 
agreement awards as well as contracts issued for research involving 
human fetal tissue.'' Further, in NIH-OD-19-128,\73\ NIH indicated that 
all grants and cooperative agreements awarded with, or adding, human 
fetal tissue on or after September 25, 2019 would include certain terms 
and conditions, including that the recipient has documentation from the 
donating organization of compliance with the requirements of the 
informed consent process and documentation that the human fetal tissue 
was not obtained or acquired for valuable consideration. Accordingly, 
the proposed records access provision merely provides specificity to 
the general requirement in 45 CFR 75.364(a), which parallels 2 CFR 
200.337(a), but does not impose any new information collection 
requirements.
---------------------------------------------------------------------------

    \72\ NIH-OD-16-033 (Feb. 11, 2016), available at https://grants.nih.gov/grants/guide/notice-files/not-od-16-033.html.
    \73\ Changes to NIH Requirements Regarding Proposed Human Fetal 
Tissue Research, NOT-OD-9-128 (July 26, 2019), available at https://grants.nih/gov/grants/guide/notice-files/NOT-OD-19-128.html.
---------------------------------------------------------------------------

    HHS solicits public comment on the potential burden associated with 
the proposed requirements that would impose collection of information 
requirements, as outlined in this section, including HHS's assumptions 
and analysis, as well as on each of the required issues under section 
3506(c)(2)(A) of the PRA with respect to each of these proposed 
requirements. HHS asks for public comment on the proposed information 
collection, including what additional benefits may be cited as a result 
of this proposed rule. Comments regarding the collection of information 
proposed in this proposed rule must refer to the proposed rule by name 
and docket number as indicated under ADDRESSES by the date specified 
under DATES.
    These information collection requirements will be submitted to OMB 
for review and approval.
Appendix to the Preamble--Model Informed Consent Form Provisions
    HHS provides these model informed consent form provisions for 
comment. This is only model language to illustrate the proposed 
informed consent provisions in this proposed rule. HHS contemplates 
providing updated guidance upon publication of the final rule. These 
model provisions would help regulated entities more easily comply with 
the informed consent provisions of this proposed rule, assuming the 
rule is finalized as proposed. However, use of such model

[[Page 2632]]

provisions would not be required for compliance with this proposed 
rule. In addition, the language could be amended to more accurately 
reflect the understandings of the fetal tissue donor and the particular 
situations. These or similar provisions may be incorporated into a 
regulated entity's informed consent form for donation of fetal tissue. 
These concepts only address concepts and requirements set forth in this 
proposed rule, and alone are not sufficient to result in legally 
sufficient informed consent for the donation of fetal tissue under 
State law and do not include some formalities and substantive 
provisions that are required or typically included in legally 
sufficient informed consents. Reliance on these model provisions is not 
sufficient for compliance with state law and does not replace 
consultation with a lawyer. Furthermore, a regulated entity may want to 
include other provisions that are related to this proposed rule, but 
that HHS has not proposed through this proposed rule.
Model Informed Consent for Human Fetal Tissue Donation Provisions \74\
---------------------------------------------------------------------------

    \74\ Words or phrases contained in brackets are intended as 
instructions to users of these model provisions and are not intended 
to be included in the informed consent form provisions.
---------------------------------------------------------------------------

    It is important to us that your preferences and beliefs are 
respected.
    If you are willing to donate fetal tissue, the following statements 
apply:
    <bullet> I already have completed my consent form for the abortion.
    <bullet> My decision about whether to donate fetal tissue will not 
affect how or when my abortion is done. Regardless of what I decide, 
the doctor will complete my abortion in the usual way.
    <bullet> The fetal tissue that I donate may be kept for many years 
and may be used for various research purposes.
    <bullet> The doctor performing the abortion will not benefit in any 
way from my decision.
    <bullet> I will not receive any payment, benefit, or other 
incentives for donating tissue.
    <bullet> I will not receive any medical benefit from any research 
conducted with the donated fetal tissue.
    <bullet> The research using the donated fetal tissue may have 
commercial potential, but I will not receive any financial or other 
benefit from any commercial development from the research.
    <bullet> I am [insert the age of majority in the jurisdiction where 
the informed consent is being signed] or older.
    <bullet> My preferences about donating fetal tissue for research 
will not affect my care today or in the future at [insert name of 
facility].
    I have had an opportunity to discuss this with my provider and my 
questions have been answered.
    Please mark the statement that best matches your preference:
    __I consent to donating fetal tissue for research.
    __I do not want to donate fetal tissue to be used for research.

Date and Time:---------------------------------------------------------

Patient Name:----------------------------------------------------------

Patient Signature:-----------------------------------------------------
* * * * *

Attestation of Provider

I attest that

    <bullet> All options were presented to the patient.
    <bullet> I have documented the patient's preferences.
    <bullet> All relevant laws and regulations will be followed in 
completing the abortion.
    <bullet> The patient's decision to donate fetal tissue will not 
affect the manner, methods and/or procedures used to perform the 
abortion, nor will it affect the timing of the abortion. The abortion 
will be performed in the same way, regardless of the patient's decision 
on fetal tissue donation.
    <bullet> I am not the individual who obtained the informed consent 
for the patient's abortion.
    <bullet> No payments, in cash or in kind, were offered or provided 
to the patient for the donation of human fetal tissue. Neither [insert 
name of facility] nor I have provided, or obtained, any valuable 
consideration for the human fetal tissue.

Date and Time:---------------------------------------------------------

Provider Name, Title, and ID No.:--------------------------------------

Provider Signature:----------------------------------------------------
* * * * *
Witness:
Date and Time:---------------------------------------------------------

Name of Witness:-------------------------------------------------------

Signature of Witness:--------------------------------------------------

List of Subjects

45 CFR Part 46

    Human research subjects, Reporting and record-keeping requirements, 
Research.

45 CFR Part 75

    Accounting, Administrative practice and procedure, Cost principles, 
Grant programs, Grant programs--health, Grants administration, 
Hospitals, Nonprofit organizations reporting and recordkeeping 
requirements, and State and local governments.

    For the reasons set forth in the preamble, the Department of Health 
and Human Services proposes to amend 45 CFR parts 46 and 75 as follows:

PART 46--PROTECTION OF HUMAN SUBJECTS

0
1. The authority citation for part 46 is revised to read as follows:

    Authority:  5 U.S.C. 301; 31 U.S.C. 503(b)(2)(2); 41 U.S.C. Ch. 
13; 42; U.S.C. 216(b); 42 U.S.C. 289(a); 42 U.S.C. 289g-1; 42 U.S.C. 
289g-2.

0
2. Amend Sec.  46.202 by adding paragraph (i) to read as follows:


Sec.  46.202   Definitions.

* * * * *
    (i) Human fetal tissue shall have the definition ascribed to the 
term in 42 U.S.C. 289g-1(g).
0
3. Amend Sec.  46.204 by adding paragraph (k) to read as follows:


Sec.  46.204   Research involving pregnant women or fetuses.

* * * * *
    (k) Notwithstanding any provisions to the contrary in this Part, 
HHS-funded research involving human fetal tissue obtained by donation 
from a pregnant woman occurring after [the effective date of the final 
rule] may not occur without the written informed consent of the 
pregnant woman from whom the human fetal tissue was obtained.
    (1) For purposes of this paragraph (k), informed consent requires 
that:
    (i) The pregnant woman's consent be documented on a written 
informed consent form that is signed by the pregnant woman and written 
in plain language that is clear and easily understandable (``Informed 
Consent Form'');
    (ii) The Informed Consent Form include a statement that there have 
been and will be no enticements, benefits, or financial incentives 
exchanged for the donation or acquisition of human fetal tissue or the 
abortion (if any) from which such tissue was obtained;
    (iii) The Informed Consent Form permit the pregnant woman to choose 
to donate fetal tissue for research or to decline to donate fetal 
tissue for research; and
    (iv) The Informed Consent Form be signed by both the pregnant woman 
and the individual obtaining the informed consent for the donation, 
with the latter attesting to the truth of the statements in the form.
    (2) With respect to human fetal tissue obtained from elective 
abortions, informed consent also requires that:
    (i) The pregnant woman's informed consent be obtained after the 
decision to have an abortion has been conclusively made and informed 
consent for the abortion has been obtained;

[[Page 2633]]

    (ii) The pregnant woman's informed consent be obtained by an 
individual other than the individual who obtained the informed consent 
for the pregnant woman's abortion;
    (iii) The pregnant woman be at or over the age of majority in the 
jurisdiction in which the pregnant woman's donation is made; and
    (iv) The Informed Consent Form include a statement that the 
decision to have an abortion and the method of abortion have not been 
affected by the decision whether to donate human fetal tissue.
0
4. Amend Sec.  46.206 by adding paragraphs (c) through (i) to read as 
follows:


Sec.  46.206   Research involving, after delivery, the placenta, the 
dead fetus or fetal material.

* * * * *
    (c) At all stages in the process to acquire or otherwise obtain 
human fetal tissue for use in research, there shall be no enticements, 
benefits, or financial incentives provided to the pregnant woman or 
attending physician to incentivize the occurrence of an abortion or the 
donation or acquisition of human fetal tissue.
    (d) No person who solicits or knowingly acquires, receives, or 
accepts a donation of human fetal tissue for use in research shall 
provide valuable consideration for the costs associated with the 
abortion that is the source of the human fetal tissue used or to be 
used in the research.
    (e) No person who solicits or knowingly acquires, receives, or 
accepts a donation of human fetal tissue for use in research shall 
provide valuable consideration for the costs associated with the 
donation or acquisition of human fetal tissue.
    (f) For purposes of paragraphs (d) and (e) of this section, the 
term ``valuable consideration'' includes all payments other than 
reasonable payments associated with the transportation, implantation, 
processing, preservation, quality control, or storage of human fetal 
tissue.
    (g) Human fetal tissue obtained by donation from a woman occurring 
after [the effective date of the final rule] may be used in research 
only if an informed consent that meets the applicable requirements of 
Sec.  46.204(k) has been obtained with respect to the tissue.
    (h) Research involving human fetal tissue can use human fetal 
tissue from elective abortions only if such tissue is acquired or 
otherwise obtained from a Federal or State Government, a Federal or 
State Government-owned entity, university, college, accredited degree-
granting institution of higher education, university hospital, or 
academic medical center.
    (i) Once human fetal tissue is no longer to be used in research, it 
shall be treated respectfully and disposed of reasonably and in 
compliance with any additional laws or regulations imposed by 
applicable state law.

PART 75--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND 
AUDIT REQUIREMENTS FOR HHS AWARDS

0
5. The authority citation for 45 CFR part 75 continues to read as 
follows:

    Authority: 5 U.S.C. 301.

0
6. Amend Sec.  75.364 by adding paragraph (a)(1), adding and reserving 
paragraph (a)(2) and adding paragraph (d) to read as follows:


Sec.  75.364   Access to records.

    (a) * * *
    (1) For non-Federal entities that engage in human fetal tissue 
research pursuant to a Federal award, the HHS awarding entity, 
Inspectors General, the Comptroller General of the United States, and 
the pass-through entity, or any of their authorized representatives, 
must have the right of access to:
    (i) Copies of the informed consent forms signed by each pregnant 
woman who is the source of human fetal tissue used by the non-Federal 
entity in research, which may be redacted with respect to the name and 
signature of the woman;
    (ii) all documents, papers, or other records as are necessary to 
establish that the human fetal tissue was not obtained or transferred 
for valuable consideration, as that term is defined in 45 CFR 
46.206(f);
    (iii) all documents, papers, or other records as are necessary to 
establish that federal funds were not used to acquire or otherwise 
obtain the human fetal tissue from elective abortions; and
    (iv) personnel familiar with such documents, for purposes of 
interview and discussion concerning such documents, at reasonable times 
and locations.
    (2) [Reserved]
* * * * *
    (d) For purposes of this section, ``human fetal tissue'' shall have 
the definition ascribed to the term in 42 U.S.C. 289g-1(g).
0
7. Add Sec.  75.478 to subpart E to read as follows:


Sec.  75.478  Expenses associated with acquiring human fetal tissue for 
research.

    Expenses associated with the acquisition of human fetal tissue from 
elective abortions for use in research are not allowable expenses under 
Federal awards from an HHS awarding agency.

    Dated: December 29, 2020.
Alex M. Azar II,
Secretary, Department of Health and Human Services.
[FR Doc. 2020-29107 Filed 1-11-21; 4:15 pm]
BILLING CODE 4151-26-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>