MEMORANDUM OF UNDERSTANDING
Between
Food and Drug Administration
and
Office of the Assistant Secretary for Preparedness and Response

I.  Preamble

The Food and Drug Administration (FDA) and the Office of the Assistant Secretary for Preparedness and Response (ASPR) (including the Biomedical Advanced Research and Development Authority (BARDA)), each as part of the Department of Health and Human Services, and hereinafter also collectively referred to as "Federal Partners," agree to work together to provide a framework for coordination and collaborative efforts related to the development and availability of drugs, biological products, and devices, as defined by the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. § 321) and section 351 of the Public Health Service (PHS) Act (42 U.S.C. § 262) (hereafter referred to as "medical products") regulated by FDA for use as medical countermeasures in public health medical emergencies.

II. Purpose

The purpose of the MOU is to promote collaboration and enhance knowledge and efficiency by providing for the sharing of information and expertise between the Federal Partners. The goals of the collaboration are to explore ways (inter alia) to:
 
a. Further enhance information sharing efforts through more efficient and robust interagency activities.

b. Promote efficient utilization of resources and expertise for development of safe and effective medical
products regulated by FDA for use as medical countermeasures.

c. Develop collaborative processes that meet the common needs for supporting medical product
development and innovation.

d. Assist industry with challenging areas in product development by providing relevant and appropriate technical and regulatory expertise
 
e. Provide relevant and appropriate technical and regulatory expertise with regard to establishing and maintaining a manufacturing infrastructure that can provide surge capacity for medical products that may be needed to respond to any size of an event.

III.   Authority

FDA has authority to enter this agreement pursuant to sections 1003(b) and (c) of the FD&C Act (21 U.S.C. §§ 393(b) and (c)). ASPR has authority to enter this agreement pursuant to sections 319L(c), 281 1(b)(3) and 281 1(b)(4)(A) of the PHS Act (42 U.S.C. §§ 247d-7e(c), 300hh-10(b)(3) and 300hh-10(b)(4)(A)).
 
IV.  Substance of the Agreement - Responsibilities/Activities/Information Sharing

a. The Federal Partners agree to uphold all elements of this document and establish and implement adequate procedures and safeguards to protect the sharing of and handling of information within each respective agency.

b. The Federal Partners agree that each initial request for information will be made by and transmitted to the Federal Partner principal points of contact (POC) designated according to Section IV.a. of this MOU. Subsequent communications pertaining to the information request may occur between other staff as designated by the Federal Partner principal POC.

c. The Federal Partners agree that any Federal Partner may decide not to share information or expertise in response to a particular request for information made according to the procedures established under Section IV.b., or to limit the scope of information and expertise sharing in response to a particular request.  A decision not to share information in response to a specific request may be based on several factors, including, for example, the amount of resources necessary to fulfill the request, the reasonableness of the request, the responding Federal Partner’s priorities or Federal law. There is, however, a presumption in favor of sharing information in furtherance of the purposes of this MOU. The Federal Partners further agree that either Federal Partner may on its own initiative elect to share information with the other Federal Partner pursuant to procedures established under section IV.b., above. If the Federal Partners cannot reach consensus at the POC level on a decision to share or not share information, the issue will be referred for ASPR, to the ASPR Division Directors, and, for FDA, to the Director(s) of the affected product Center(s) for review and resolution.

d. The Federal Partners agree to establish reasonable timelines for responding to information requests and to refer instances of delays to the Federal Partner POC for resolution.

e. The Federal Partners recognize that the following types of information transmitted between them in any medium and from any source must be protected from unauthorized use and disclosure: (1) trade secret and other confidential commercial information that would be protected from public disclosure pursuant to Exemption 4 of the Freedom of Information Act (FOIA); (2) personal privacy information, such as the information that would be protected from public disclosure pursuant to Exemption 6 or 7(c) of the FOIA; or (3) information that is otherwise protected from public disclosure by Federal statutes and their implementing regulations (e.g., the Trade Secrets Act (18 U.S.C. § 1905), the Privacy Act (5 U.S.C. § 552a), the Freedom of Information Act (5 U.S.C. § 552), the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §§ 301 et seq.), the Health Insurance Portability and Accountability Act (HIPAA) (Pub, L. No. 104-191), Section 319L(e) of the PHS Act (42 U.S.C. § 247d-7e(e)), and disclosure restrictions subject to 41 U.S.C. 423 (Procurement Integrity Act) and 48 C.F.R 3.104 (Federal Acquisition Regulation).

f. The procedures established under Section IV.a. must include proper safeguards against unauthorized use and disclosure of the information exchanged under this MOU. Proper safeguards shall include the adoption of policies and procedures to ensure that the information shared under this MOU shall be used solely in accordance with Trade Secrets Act (18 U.S.C. § 1905), the FD&C Act (21 U.S.C. §§ 301 et seq.) the Privacy Act of 1974 (5 U.S.C. § 552a), the Freedom of Information Act (5 U.S.C. § 552), and their implementing regulations, as well as the HIPAA Privacy Rule (45 C.F.R. Parts 160 and 164) as applicable, and disclosure restrictions subject to 41 U.S.C. 423 (Procurement Integrity Act) and 48 C.F.R 3.104 (Federal Acquisition Regulation).  The Federal Partners agree to promptly notify the other Federal Partner of any actual or suspected unauthorized disclosure of information shared under this MOU.

g. Access to the information shared under this MOU shall be restricted to authorized Federal Partners’ employees, agents, and officials who require access to perform their official duties in accordance with the uses of the information as authorized in this MOU. Such personnel shall be advised of (1) the confidential nature of the information; (2) safeguards required to protect the information, and (3) the administrative, civil and criminal penalties for noncompliance contained in applicable Federal laws.  Contractors, their subcontractors, and/or agents of parties participating in discussions covered by this MOU will be permitted to participate in discussions and to receive information under this MOU only if they have signed an agreement by which such contractor, subcontractor, or agent will commit to keep the information confidential.

h. If a Federal Partner that has received information under this MOU receives a Freedom of Information Act (FOIA) request for information shared by the other Federal Partner pursuant to this MOU, it will refer the request to the information-sharing Federal Partner for that Federal Partner to respond directly to the requestor regarding the releaseability of the information.  In such cases, the Federal Partner making the referral will notify the requestor that a referral has been made and that a response will issue directly from the information sharing Federal Partner.

i. The Federal Partners further agree that nothing in this MOU shall be construed to prevent a disclosure required by law, regulation, or legal process. Notwithstanding this provision, should information shared pursuant to this MOU be subpoenaed or otherwise ordered through a legal process, the Federal Partner to whom the subpoena or order is directed will notify an Authorized Official of the other Federal Partner immediately and the Partners shall consult on the appropriate response to the request. This MOU does not prohibit disclosure of information that is available publicly or when authorized in writing by the information owner.

j. The Federal Partners agree that termination of this MOU does not relieve either of the Federal Partners of their confidentiality obligations established under this MOU, including their obligations to safeguard and limit access to all information provided pursuant to this MOU as applicable.

k. All information provided by either Federal Partner shall be used solely for the purposes outlined in Section II. If either Federal Partner wish to use the information provided by the other Federal Partner under this MOU for any purpose other than those outlined above, the requesting Federal Partner shall make a written request to the other Federal Partner describing the additional purposes for which it seeks to use the information. If the Federal Partner receiving this request determines that the request to use the information provided hereunder is acceptable, it shall provide the requestor with written approval of the additional use of the information.

V.  Conflicts of Interest

Executive Order 12674, Standards of Ethical Conduct for Employees of the Executive Branch, and individual agencies’ standards of conduct contain rules and regulations that govern the ethical issues applicable to Government employees. Federal law prohibits a Federal employee from participating personally and substantially in any particular matter in which the employee has a financial interest. Absent an exemption, the restriction also applies to financial interests of an employee’s spouse; minor child; partner; organization in which he or she is serving as officer, director, trustee, partner or employee; and any person or organization with whom the employee is negotiating or has any arrangement concerning prospective employment. Ethics requirements applicable to Federal personnel also broadly prohibit employees from engaging in a financial transaction using nonpublic information, and prohibit the improper use of nonpublic information to further his/her own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure. In addition, HHS Supplemental Standards of Ethical Conduct impose additional conditions, such as unique prohibited-holdings regulations for certain FDA personnel. Each Federal Partner will ensure that its representatives to any discussion under this MOU do not have a prohibited financial conflict of interest through personal or family investments in a sponsor, or a competitor to the sponsor, who will be affected by FDA decisions. If at any time prior to or during the performance of activities under this MOU, a person becomes aware that a potential or actual conflict exists, that person must notify the appropriate authorities within his or her own agency, and that Federal Partner agency must contact the appropriate project manager of the counterpart agency designated pursuant to paragraph VII.b of this MOU so that any necessary actions can be undertaken.

VI.Integrity of the Regulatory Decision-Making Process

As a general rule, FDA employees will not participate in discussions or decision-making under this MOU regarding the terms of procurement of, contracting for, or investment in a medical product. FDA representatives may participate in discussions to provide FDA’s current thinking on scientific or regulatory issues within FDA’s areas of responsibility and expertise. FDA participation is predicated on a mutual understanding that Federal Partner meetings under this MOU provide a forum for a mutual exchange of opinions and ideas, and that the Federal Partners must avoid any appearance that procurement, contracting, or investment considerations may influence FDA regulatory decision-making concerning product approval or authorization.

VII.  General Provisions

a.  Effect on Existing Statutes and Regulations
 
The Federal Partners agree to take actions under this collaboration that are consistent with existing laws and regulations, and that nothing in the MOU shall be construed as changing the current requirements under the statutes and regulations administered and enforced by the Federal Partners including but not limited to relevant provisions of the PHS Act and the FD&C Act. Further, nothing contained in this MOU constitutes a mandate or a requirement imposed on either Federal Partner that is additional to the mandates or requirements imposed on either Federal Partner by Federal statutes and regulations.

b. Resource Obligations

FDA and ASPR will designate respective personnel to oversee the administration of, and adherence to, the content of this MOU. These project managers shall include one or more designated individuals from any of the following: FDA’s Office of the Commissioner (OC), Center for Biologics Evaluation and Research (CBER), Center for Devices and Radiological Health (CDRH), and Center for Drug Evaluation and Research (CDER), and from ASPR’s Divisions.

The Federal Partners will make reasonable efforts to provide the staff necessary to implement this MOU in an efficient and effective manner. There will be no exchange or transfer of funds under this MOU.

VIII. Assessment Mechanisms

The Federal Partners’ staff involved in implementing the MOU will provide regular and consistent oversight and reevaluation of all terms and conditions contained herein.

IX.  Terms, Termination or Modification

This MOU becomes effective upon the signature of the Federal Partners and will remain in effect unless otherwise terminated. This agreement may be modified by mutual written consent or terminated by either party upon 60 days written notice. This agreement may be modified by consent of both Federal Partners or terminated by either party immediately upon written notice in the event that a Federal statute is enacted or a regulation is issued by a Federal Partner that materially affects this MOU.

X.  Federal Partners’ POCs

For CBER:
David Cho, PhD
Senior Advisor for Counterterrorism and Medical Countermeasures
Office of the Center Director
Center for Biologics Evaluation and Research
U.S. Food and Drug Administration
10903 New Hampshire Avenue
Silver Spring, MD 20993

Alternate:
Nicolette deVore, PhD
Senior Scientist and Project Manager for Counterterrorism and Emerging Threat Preparedness

David Rouse, M.S.
Senior Scientist for Counterterrorism and Emerging Threat Preparedness

For CDRH:
Julia Marders, M.S., R.N.
Director, Emergency Preparedness/Operations & Medical Countermeasures (EMCM)
Office of the Center Director
Center for Devices and Radiological Health
U.S. Food and Drug Administration
10903 New Hampshire Avenue
U.S. Food and Drug Administration
Silver Spring, MD 20993

Alternate:
Heather Agler, PhD
Emergency Preparedness/Operations and Medical Countermeasures program

For CDER:
Rosemary Roberts, MD
Director, Counter-terrorism and Emergency Coordination Staff
Center for Drugs Evaluation and Research
U.S. Food and Drug Administration
Hillandale Building, Room 2128
Silver Spring, MD 20993

Alternate:
Brad Leissa, MD
Deputy Director, Counter-terrorism and Emergency Coordination Staff

For OC:
Michael Mair, MPH
Acting Assistant Commissioner for Counterterrorism Policy and
Acting Director, Office of Counterterrorism & Emerging Threats
Office of the Chief Scientist
Office of the Commissioner
U.S. Food and Drug Administration
10903 New Hampshire Avenue
Silver Spring, MD 20993

For ASPR:
James Little, MS
Director, Regulatory and Quality Affairs Division
Office of Biomedical Advanced Research and Development Authority
Office of the Assistant Secretary for Preparedness and Response
U.S. Department of Health and Human Services
330 Independence Avenue, S.W.
Room 640G
Washington, D.C. 20201

Alternate:
Tremel Faison, MS
Regulatory and Quality Affairs Division
Office of Biomedical Advanced Research and Development Authority
Office of the Assistant Secretary for Preparedness and Response

XI. APPROVAL

APPROVED AND ACCEPTED FOR THE FOOD AND DRUG ADMINISTRATION

Denise M. Hinton
/s/
RADM Denise M. Hinton
Acting Chief Scientist
Office of the Chief Scientist

Date: 04-10-2019

APPROVED AND ACCEPTED FOR THE DEPARTMENT OF HEALTH AND HUMAN SERVICES

Robert P. Kadlec
/s/
Robert P. Kadlec, MD, MTM&H, MS
Assistant Secretary for Preparedness and Response

Date: 03-26-2019