Microbial Products of Biotechnology
For purposes of TSCA jurisdiction, EPA interprets the definition of the term "chemical substance" to include microorganisms. Due to their unique character and potential risks to humans and the environment, on April 11, 1997, EPA issued a final rule under section 5 of TSCA to establish notification procedures for manufacturers, importers, and processors of certain new microorganisms that are "intergeneric," i.e., formed by the deliberate combination of genetic material that was first identified in a microorganism of a different taxonomic genus. 62 Fed. Reg. 17,909 (Apr. 11, 1997) (codified at 40 C.F.R. Part 725). The general framework for notifying EPA concerning new microorganisms is covered in this section.
- TSCA-Regulated Microorganisms
- Scope of Coverage of Microorganisms under TSCA
Under TSCA, "microorganism" means an organism in the kingdoms of Monera (Procaryotae), Protista, Fungi, the Chlorophyta and Rhodophyta of the Plantae, or a virus or virus-like particle. This category includes bacteria and various other microorganisms, but does not include, e.g., cell cultures of human cells. See 40 C.F.R. § 725.3. "New" microorganisms are reportable if they are "intergeneric." Microorganisms that are not "intergeneric" are automatically included on the Inventory. 40 C.F.R. § 725.8(b). An intergeneric microorganism is one formed by deliberate combination of certain "mobile"1 genetic elements (e.g., DNA) originally isolated from organisms classified in different taxonomic genera. Intergeneric microorganisms do not include those in which the introduced genetic material consists only of "well characterized,"2 "non-coding regulatory regions"3 from another genus.
The TSCA regulations do not cover:
- microorganisms that are manufactured, imported, or processed for non-commercial purposes, e.g., solely for academic research4 ;
- microorganisms that are excluded from the definition of "chemical substance" under section 3 of the Act and 40 C.F.R. § 720.3, e.g., pesticides, foods, drugs, and cosmetics;
- mixtures of microorganisms (although the individual constituents may be reportable); or
- microorganisms manufactured and processed solely for export, subject to labeling and documentation requirements at 40 C.F.R. § 725.8.
Microorganisms subject to TSCA may be of commercial interest, e.g., (1) as a means of producing another chemical substance, which may be isolated from the microorganisms grown in fermentation vessels or (2) for their ability to produce an effect in the environment. A variety of commercially valuable products are manufactured by fermentation processes, i.e., through the growth of microorganisms that biosynthetically produce the desired product through expression of its genes. The direct product of gene expression is a protein. Some proteins, known as enzymes, have a catalytic function. Use of intergeneric organisms is increasingly common in enzyme manufacture, and is particularly useful when the desired enzyme is discovered from a source that is difficult or slow-growing, or when the quantities normally produced are too low to be efficient. Technology for the manipulation of certain "host" organisms (e.g., E. coli) has advanced to the point where a gene from most any source can be inserted into that organism for rapid and efficient production of the gene product. Enzymes have other commercial uses as well (e.g., laundry detergents), which do fall under TSCA jurisdiction. The catalytic functions of enzymes might also be employed within the microorganism culture, such that the product harvested from the cell culture is a product of catalysis by one or more enzymes, e.g., lipids or polysaccharides. Products of fermentation using intergeneric organisms are subject to the regulations for traditional chemical substances and are not automatically covered for purposes of premanufacture notification by compliance with the regulations governing notification of their production source organisms. EPA has also reviewed (under its TERA regulations, discussed below) submissions regarding organisms intended for release into the environment for enhancement of nitrogen fixation by plants to help meet their nutrient requirements and for organisms intended for use in the detection of a soil pollutant.5
Persons who intend to manufacture or import a new microorganism (i.e., one not listed on the TSCA Inventory) for a non-exempt commercial purpose must submit a Microbial Commercial Activity Notice (MCAN) to EPA at least 90 days prior to such manufacture or import.6 Under certain circumstances, EPA may extend the notification period to 180 days, but, as a practical matter, companies normally extend the notification period when requested by EPA. The date that first import for a non-exempt commercial purpose may legally occur is the first day after EPA's review is over or any day thereafter. Information required to be submitted with the MCAN is set out at 40 C.F.R. § 725.155-160 and includes:
- Submitter identification;
- Microorganism identity information,7 including a description of the recipient and new microorganisms, genetic construction, and phenotypic8 and ecological characteristics;
- Byproducts of manufacture, processing, use, and disposal of the new microorganism;
- Total production volume;
- Use information;
- Description of worker exposure and environmental release; and
- All health and environmental effects data in the possession or control of the submitter.
Submitting an MCAN does not place the reported substance on the TSCA Inventory. For various reasons, a candidate for commercialization may be postponed, abandoned, or canceled. Until commercial manufacture or importation begins, and MCAN submitter files a Notice of Commencement of Manufacture or Import (NOC) with EPA, the substance remains a new chemical. EPA will only list the substance on the TSCA Inventory when it receives a valid NOC. The first date that a MCAN substance may properly be manufactured or imported for a non-exempt commercial purpose is the day after the MCAN review period has expired. EPA will add a MCAN substance to the TSCA Inventory only if it receives the required NOC from the MCAN submitter after the substance is first manufactured or imported for a non-exempt commercial purpose after the end of the MCAN review period.
The earliest that an NOC may be legally filed is either the day that non-exempt manufacture is complete or the day that the substance has been manufactured or imported for a non-exempt commercial purpose once the review period has expired. 40 C.F.R. § 725.190. The NOC must be submitted to EPA within 30 days of first non-exempt commercial manufacture or import. The effective date of listing of the substance on the TSCA Inventory is the day that EPA accepts a valid NOC. Once a substance is listed on the TSCA Inventory, any person may legally manufacture or import the organism under TSCA for a non-exempt commercial purpose.
A completed NOC contains three principal pieces of information: (1) the specific chemical identity of the microorganism; (2) the MCAN number, and (3) the date when the substance was first manufactured or imported by the MCAN submitter for a non-exempt commercial purpose. In addition, if the substance's chemical identity was claimed as CBI, and the submitter wishes to maintain confidentiality after non-exempt manufacture or import has commenced, the CBI claim must be reasserted and resubstantiated at the time of filing the NOC in accordance with 40 C.F.R. § 725.85(b).
In addition to notifying EPA of new microorganisms, the MCAN is also the proper form (in lieu of a SNUN) for notifying EPA of significant new uses for microorganisms subject to a significant new use rule (SNUR). Such microorganisms may or may not be intergeneric. For example, on June 13, 2003, EPA published a final rule issuing a SNUR for Burkholderia cepacia complex (Bcc), a group of naturally occurring microorganisms. 68 Fed. Reg. 35,315. These microorganisms are used in R&D in the degradation of chemicals via injection into subsurface groundwater and have the potential to infect sensitive populations, such as cystic fibrosis patients. This is the first and, to date, only microorganism subject to a SNUR; it will be listed at 40 C.F.R. Part 725, Subpart M. The SNUR provisions for microorganisms were adopted from those at Part 721 with minor modifications to accommodate the specific characteristics of microorganisms.
- Tier I Exemption
There are certain general exemptions under section 5(h) of the Act (determination of no unreasonable risk of injury to health or the environment) from having to file an MCAN for certain low-risk scenarios involving intergeneric microorganisms. See 40 C.F.R. §§ 725.400-470. For the so-called "Tier I" exemption, the following requirements apply:
- Use of a specified organism (ten organisms are currently listed at 40 C.F.R. § 725.420; others may be added to this list by petition);
- Use only of introduced genetic material that is limited in size, well characterized, poorly mobilizable, and free of certain toxin producing sequences in accordance with 40 C.F.R. § 725.421;
- Use of physical containment and control technologies specified at 40 C.F.R. § 725.422; and
- A certification of compliance with these requirements, along with identification of the manufacturer or importer, date when manufacture or import is expected to begin, and identification of the genus and species of the recipient organism that will be used to create the new organism.
The certification must be submitted at least ten days before commencing initial manufacture or import of a new microorganism. Recordkeeping requirements apply. 40 C.F.R. § 725.424.
An importer who otherwise meets the conditions of the Tier I exemption, but who wishes to deviate from the specified containment and control procedures specified under Tier I, may submit a "Tier II" exemption notice. 40 C.F.R. § 425.428. The notice must describe the modified containment, and is subject to a 45-day period, during which EPA reviews the proposed containment. Manufacture or importation may not proceed until EPA approves the exemption. EPA strongly suggests that submitters request a prenotice consultation with EPA before filing for the Tier II exemption. 40 C.F.R. § 425.450.
- Contained R&D Federally Required to meet NIH Guidelines
- Other Activities Contained Within a Structure
EPA has established R&D exemptions under section 5(h)(4) of the Act for R&D activities in contained structures if the researcher is receiving funds from another Federal agency (or is otherwise legally bound by an agency) which requires compliance with National Institutes of Health (NIH) "Guidelines for Research Involving Recombinant DNA Molecules," 59 Fed. Reg. 34,496 (July 5, 1994). 40 C.F.R. § 725.232. This includes research not funded by an agency, but which is conducted at an institution that adheres to the NIH Guidelines on an institution-wide basis as a condition of receiving Federal funds. This exemption does not cover researchers complying with NIH Guidelines voluntarily, on a contractual basis, or under state regulations. EPA developed this exemption to avoid duplicative oversight with other Federal authorities. 62 Fed. Reg. at 17,924 (April 11, 1997).
Like other chemical substances, intergeneric microorganisms are exempted from notification requirements in accordance with section 5(h)(3) of the Act when manufactured, imported, or processed "only in small quantities" solely for R&D. EPA is directed to define "small quantities" by regulation. Because of the unique nature of microorganisms, i.e. ability to reproduce, EPA found that the liberal definition applicable to other chemical substances (quantities "not greater than reasonably necessary" for R&D) was not appropriate for intergeneric microorganisms. Instead, EPA requires that R&D activities using microorganism must be conducted in a contained structure, in accordance with the following requirements found at 40 C.F.R. § 725.234:
- The microorganism is manufactured, imported, or processed solely for R&D activities;
- It is used under the supervision of a technically qualified individual (TQI), as defined by regulation;
- There is no intentional testing of the microorganism outside of a structure;
- Containment and/or inactivation controls are employed, which are selected by the TQI and approved and certified by another authorized individual, and which EPA may order changed;
- Records documenting the controls are kept, which may be reviewed by EPA; and
- Employees and recipients of the microorganisms are notified of associated risks.
Further details on risk assessment, notifications to employees and others, and recordkeeping requirements are found at 40 C.F.R. § 725.235.
For R&D activities conducted outside of a contained structure (most typically environmental R&D), EPA provides a limited exemption from the MCAN9 requirement in the form of a TSCA Experimental Release Application (TERA). See 40 C.F.R. § 725.1(c); 40 C.F.R. § 725.250. The TERA is essentially an abbreviated MCAN submission for conducting individual tests. A manufacturer, processor, or importer may submit an MCAN for what is essentially an R&D activity. However, EPA expects that most researchers will instead choose to submit a TERA. EPA's review period for a TERA is reduced to 60 days, although EPA may extend the period for good cause. EPA must approve the test before the research may proceed, even if the 60-day period expires. EPA's approval is limited to the conditions outlined in the TERA notice or approval. EPA may revoke or modify a TERA if it receives information raising significant questions about its original determination that the proposed activity does not present an unreasonable risk of injury to health or the environment. EPA must notify the submitter in writing of these questions and the submitter may provide additional information or arguments in response to these questions. EPA will then decide whether to change its determination regarding approval of the TERA. If EPA decides that it can no longer conclude that the activity will not present an unreasonable risk, it may notify the submitter that it must implement additional safeguards or it may instruct the submitter to terminate the research. Information required for a TERA submission includes:
- Submitter identification and microorganism identification as per MCAN requirements;
- Phenotypic and ecological characteristics information, as per MCAN requirements, and as it relates directly to the conditions of the proposed R&D activity;
- Detailed description of the proposed R&D activity, including objectives, significance, and rationale, number of organisms to be released, characteristics of the test sites, target organisms (if applicable), planned start date and duration, and evidence of notification of state and/or local authorities (if applicable);
- Information on monitoring, confinement, mitigation, and emergency termination procedures; and
- All available data concerning actual or potential effects on health or the environment.
EPA has established a limited exemption from TERA requirements for R&D conducted outside a structure involving intergeneric strains of the microorganisms Bradyrhizobium japonicum and Rhizobium melitoli. These are well characterized bacteria, long used in the environment as nitrogen-fixing bacteria, and which EPA has previously reviewed. The only intergeneric modifications allowed under this exemption are specified antibiotic resistance markers and other genetic material needed for insertion and regulation of those sequences. Testing is limited to ten acres. Certification to EPA of compliance with the conditions is required before beginning activity.
A test marketing exemption (TME) to filing an MCAN has also been provided at 40 C.F.R. Part 725, Subpart F. This provides a 45 day review period. An application is required, including:
- Submitter identification and microorganism identification as per MCAN requirements;
- Phenotypic and ecological characteristics information, as per MCAN requirements, and as it relates directly to the conditions of the proposed R&D activity;
- Detailed description of the test marketing activity, including quantity of microorganisms involved, maximum number of persons who will be provided the microorganisms, maximum number of persons who will be exposed to the microorganisms, including duration and route of exposure, and a description of the duration of the test marketing activity and how it may be distinguished from full scale commercial production and R&D activities; and
- All available data concerning actual or potential effects on health or the environment.
1"Mobile genetic element" means an element of genetic material that has the ability to move genetic material within and between organisms, including plasmids, viruses, transposons, insertion sequences, and other classes of elements with these general properties.
2"Well characterized" means that the function of the genetic material has been determined. See 21 C.F.R. § 725.3.
3"Non-coding regulatory region" means a segment of introduced genetic material for which (1) the regulatory region and any inserted flanking nucleotides do not code for a protein, peptide, or functional ribonucleic acid molecules and (2) the regulatory region solely controls the activity of other regions. Id. Examples include operators, promoters, origins of replication, terminators, and ribosome-binding regions. 62 Fed. Reg. at 17,915.
4Under this provision, TSCA precludes an immediate commercial advantage, seeking a patent to protect a commercial application, or direct commercial funding associated with the activity, in whole or in part. 40 C.F.R. § 725.205(b).
5Organisms intended for release into the environment for agriculture purposes should be carefully reviewed for whether they are acting as pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide Act.
6As discussed in the following section, the MCAN is also the proper form for notifying EPA of significant new uses for a microorganism subject to a significant new use rule (SNUR).
7Further details on required identity information are set out at 40 C.F.R. § 725.12, and include taxonomic designation and supplemental information (phenotype and genotype), which is required to the extent that it enables the new microorganism to be accurately and unambiguously identified. The microorganism supplemental information will be used to specifically describe an individual organism on the Inventory.
8Phenotypic information refers to the biochemical and physiological traits of an organism, e.g., expresses bovine alcohol dehydrogenase.
9This includes MCANs both for new organisms and significant new uses of organisms.