MEMORANDUM OF UNDERSTANDING
BETWEEN THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION
OFFICE OF WOMEN'S HEALTH
AND TH NATIONAL CANCER INSTITUTE
CENTER FOR CANCER RESEARCH
This Memorandum of Understanding (MOU or the agreement) establishes the framework and procedures to enhance collaborations and exchange of information between the Food and Drug Administration (FDA), Office of Women's Health (OWH) and the National Cancer Institute (NCI), Center for Cancer Research (CCR). FDA/OWH and NCI (each a Party, and together the Parties) seek to increase our scientific knowledge and understanding of cancer in women. FDA/OWH and NCI/CCR both recognize the need for a unified approach to advancing scientific knowledge related to cancer and women's health. This harmonized approach will aid in advancing the public health of all women through innovation in cancer research and medical therapies. This collaboration will serve to facilitate bi-directional communication between the two Agencies.
FDA is authorized to enforce the Federal Food, Drug and Cosmetic Act (the Act) as amended (21 U.S.C. 301, et seq.). In fulfilling its responsibilities under the Act, FDA, among other things, directs its activities toward promoting and protecting the public health by ensuring the safety, efficacy, and security of drugs, veterinary products, and medical devices and the safety and security of foods, cosmetics, and radiological products. FDA also has responsibility for regulating the manufacturing, marketing, and distribution of tobacco products to protect the public health and to reduce tobacco use by minors. To accomplish its mission, FDA must stay abreast of the latest developments in research and communicate with stakeholders about complex scientific and public health issues. Increased development of research, education, and outreach partnerships with NCI/CCR will greatly contribute to FDA's mission. FDA's Office of Women's Health (OWH) was established to protect and advance the health of women through policy, science, and outreach, and to advocate for inclusion of women in clinical trials and for sex/gender analyses. OWH achieves its mission by supporting scientific research within FDA centers and collaborating with other government agencies and national organizations to sponsor scientific and consumer outreach efforts that address health issues affecting women across their lifespan. The OWH relies on partnerships with other Federal agencies, as well as public and private entities to help advance women's health research.
Pursuant to Sections 301, 401 and 463 of the Public Health Services Act [42 U.S.C. §241.28 and 285I]; The National Cancer Institute (NCI), which is part of the National Institutes of Health (NIH), is charged by Congress with leading the nation's efforts for National Cancer Program, which conducts and supports research, training, health information dissemination and other programs with respect to the cause, diagnosis, prevention, and treatment of cancer, rehabilitation from cancer, and the continuing care of cancer patients and the families of cancer patients. The Center for Cancer Research is the basic and clinical intramural research program of the National Cancer Institute.
This MOU establishes a collaborative framework in which FDA’s OWH and NIH’s NCI/CCR may engage in activities such as research and education for the mutual benefit of the parties, as well as benefits to the public health. Before any specific cooperative efforts are initiated or implemented, the parties will identify priorities, topics of mutual interests, and develop a separate written supplemental agreement for each cooperative effort that outlines each party’s commitments to collaboration and the terms to govern the cooperative effort. Where applicable, these agreements shall incorporate by reference the terms of this MOU. The terms and conditions of any agreement will be in accordance with applicable federal law and regulations, and shall be negotiated and executed by appropriate representatives of FDA OWH and NIH NCI/CCR.
IV. Other Provisions
Nothing in this MOU is intended to conflict with law, regulation, executive order or presidential directive, or the legislative mandates, regulations, or policies of the Department of Health and Human Services (DHHS). If a term of this MOU is inconsistent with such authority, then that term shall be invalid, but the remaining terms and conditions of this MOU shall remain in full force and effect. This MOU shall be interpreted and implemented in a manner that respects and complies with (and does not abrogate) the statutory and regulatory responsibilities of each agency.
V. Data Sharing Guidelines
As public health agencies within Department of Health and Human Services (DHHS), there are no legal prohibitions that preclude FDA or NCI/CCR from sharing with each other most information on in the possession of either agency. Both Parties recognize and acknowledge, however, that all non-public information shared between FDA and NCI/CCR, whether in writing or orally, must be protected from any disclosure not authorized by law or regulation. See e.g., 18 U.S.C. § 1905; 5 U.S.C. § 552; 5 U.S.C. § 552a; 21 U.S.C. § 3316; 21 CFR Parts 20 and 21; 42 U.S.C. § 241(d); 42 CFR Parts 5 and 5b. Safeguards are needed to protect shared non-public information, such as trade secrets and confidential commercial information; identities of study participants and other personal privacy information; privileged and/or pre-decisional agency information; research proposals, progress reports, and/or unpublished data; or national security information. Such safeguards also help ensure compliance by FDA and NCI/CCR with other applicable laws and regulations.
To facilitate the sharing of non-public information, FDA and the NCI/CCR will implement procedures to ensure that such sharing is appropriate and that the recipient Party will guard the confidentiality of all information received. Both Parties are committed to responding to requests for information in a complete and timely manner, consistent with budgetary and resource constraints, and to the extent permitted by law, regulation; and agency policy and practice. The Party receiving shared non-public information (requesting Party) will be responsible for protecting that information from any unauthorized disclosure.
Provisions for sharing of non-public information in accordance with applicable statutes and regulations are set out below:
The requesting Party will comply with the following conditions:
- The requesting Party will limit the dissemination of shared non-public information it receives to internal unit offices and/or employees that have been identified in its written request. If the requesting Party determines that employees other than those identified in the original request have a need to know the requested information, then an update to the request letter will be supplied to the sharing Party before the requesting Party distributes the information to those employees. The unit official who signs the request letter will be responsible for ensuring that there are no inappropriate recipients of the information.
- The requesting Party will agree in writing, by using the model request letter attached as Appendix AI (or a reasonable, mutually agreed upon variation), not to disclose any shared non-public information in any manner not authorized by law or regulation, including disclosure in publications and public meetings. If the requesting Party wishes to disclose shared information that the sharing Party has designated as non-public, the requesting Party will ask the sharing Party whether the information is non-public status has changed, and if so, will first obtain written confirmation and permission from the sharing Party before disclosing that information. If the requesting Party receives a Freedom of Information Act (FOIA) request for shared information, the requesting Party will: (a) refer the FOIA request to the information-sharing contact person or designee for the sharing Party to respond directly to the FOIA requester regarding the release ability of the information, and (b) notify the FOIA requester of the referral and that a response will issue directly from the sharing Party. The requesting Party will leave all final disclosure decisions up to the sharing Party, including decisions on whether the records are responsive and whether they must be disclosed. Accordingly, the requesting Party will not indicate to the FOIA requester whether the sharing Party has responsive records or releasable records. If either Party receives a FOIA request for information that combines information originating from both the sharing Party and the requesting Party, the Party shall refer the FOIA request to the Public Health Service Freedom of Information Officer.
- The sharing Party will include a transmittal letter along with any agency information shared. The transmittal letter will indicate the type of information (e.g., confidential commercial information, personal privacy, pre-decisional, etc.). A model transmittal letters attached. The shared documents containing non-public information should be stamped "Do not disclose without permission of FDA or NCI/CCR" whichever is applicable.
- The requesting Party will promptly notify the contact person or designee of the sharing Party of any attempt by a third party to obtain shared nonpublic information by compulsory process, including, but not limited to, a FOIA request, subpoena, discovery request, or litigation complaint or motion.
- The requesting Party will notify the sharing Party before complying with any judicial order that compels the release of shared non-public information, so that the Parties may determine the appropriate measures to take, including, where appropriate, legal action.
VI. Resource Obligations
This MOU represents the broad outline of the Parties' intent to enter into specific agreements for collaborative efforts in intellectual areas of mutual interests to FDA OWH and NCI/CCR. All activities undertaken pursuant to the MOU are subject to the availability of personnel, resources, and funds. This MOU does not affect or supersede any existing or future agreements or arrangements among the Parties and does not affect the ability of the Parties to enter into other agreements or arrangements related to this MOU. This MOU and all associated agreements will be subject to applicable policies, rules, regulations, and statutes under which FDA and NCl/CCR operate.
VII. Liaison Officers
A. For the National Cancer Institute
Assistant Director for Clinical Affairs
Center for Cancer Research
National Cancer Institute
B. For the Food and Drug Administration, Office of Women's Health:
Dr. Pamela Scott
Director, Research and Development
10903 New Hampshire Avenue
Silver Spring, MD 20993
VIII. Term, Termination, and Modification
This agreement will be effective when accepted by all participating Parties. This agreement may be modified or terminated by mutual Written consent by both Parties or may be terminated by either Party upon a 60-day advance written notice to the other.
Marsha Henderson, MCRP
Assistant Commissioner for Women’s Health
Office of Women’s Health
Food and Drug Administration
U.S. Department of Health and Human Services
August 10, 2015
Lee Helman, M.D.
Acting Director of the Center for Cancer Research
Center for Cancer Research
National Cancer Institute
National Institutes of Health
U.S. Department of Health and Human Services
August 10, 2015
Attachment A1 -- Model Language for Information Sharing Request
MOU Control No.(Insert number) Process: for Information Sharing
Pursuant to Section V of the Memorandum of Understanding (MOU) entered by the Food and Drug Administration (FDA) and National Cancer Institute (NCI) (FDA-NCI/CCR Memorandum of Understanding), either party may decide not to share information or expertise in response to a particular request for information; or to limit the scope of information and expertise sharing in response to a particular request. Nothing in the process described below changes Section V. When, under the current MOU, staff at the FDA or NCI/CCR request for the other agency information may contain confidential material, the request should be in writing, which includes an informal Email or need only identify the subject for which information is requested. Although a more specific description of the information asked for may be helpful, it is not be required for purposes of making a request. However, the following language should be included in the request.
Information that is shared under this agreement will be under the FDA-NCI/CCR Memorandum of Understanding. We agree not to disclose any shared information in any manner without your written permission or as required by law with advance notice to the originating agency.
With the inclusion of this statement, requestors do not have to use a particular format or include other pre-specified text.
A response to a request should also be in writing and can be an informal email that acknowledges transmission of information in response to the request. Although identifying each piece of information/document provided may be helpful, it is not required for purposes of responding to a request. However, the following language should be included in the response:
“Pursuant to the FDA-NCI/CCR Memorandum of Understanding, this communication may contain privileged and/or confidential information exempt from public disclosure. It may not be disclosed or shared in any manner without the express written consent or as required by law with advance notice to the originating agency."
With the inclusion of this statement, responders would not have to use a particular format or include other pre-specified text.
Appendix A2—Model Language for Information Sharing Request
MOU Control No. (Insert number)
This letter accompanies agency records shared by one party (information-sharing Party) with the other (requesting Party) in response to requesting Party's request, dated _________. These agency records may contain one or more of the following categories of nonpublic information, including information the disclosure of which may be prohibited bylaw (including, limited to trade secrets; confidential commercial or financial information, information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy information subject to the Privacy Act; interagency or intra-agency records which would not be available by law to a party other than an agency in litigation with the agency; records or information compiled for law · enforcement purposes; and information protected for national security reasons).
The requesting Party shall notify the appropriate office of the information-sharing agency if there are any attempts to obtain shared information by compulsory process, including but not limited to, Freedom of Information Act requests, subpoenas, discovery requests, and litigation complaints or motions.
The requesting· Party shall notify the information-sharing agency before complying with any judicial order that compels the release of such information that the Parties may take appropriate measures, including filing a motion with the court or an appeal.
Parties have agreed, by this letter or e-mail or by a signed request letter dated_____ not to publically disclose the above-described information without prior written permission of the Parties to the extent permitted by applicable law, regulation, and policy. Both Parties acknowledge that applicable laws and regulations may prohibit the disclosure of such information. See e.g., 21 U.S.C. Section 331(j); 5 U.S.C. Section 552; 5 U.S.C. Section 552a; 18 U.S.C. Section 1095; 21 C.F.R. Parts 20 and 21; 45 C.F.R. Parts 5 and 5b, and 42 U.S.C. Section 241(d).