21 C.F.R. § 10.70

Documentation of significant decisions in administrative file

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(a) This section applies to every significant FDA decision on any matter under the laws administered by the Commissioner, whether it is raised formally, for example, by a petition or informally, for example, by correspondence.

(b) FDA employees responsible for handling a matter are responsible for insuring the completeness of the administrative file relating to it. The file must contain:

(1) Appropriate documentation of the basis for the decision, including relevant evaluations, reviews, memoranda, letters, opinions of consultants, minutes of meetings, and other pertinent written documents; and

(2) The recommendations and decisions of individual employees, including supervisory personnel, responsible for handling the matter.

(i) The recommendations and decisions are to reveal significant controversies or differences of opinion and their resolution.

(ii) An agency employee working on a matter and, consistent with the prompt completion of other assignments, an agency employee who has worked on a matter may record individual views on that matter in a written memorandum, which is to be placed in the file.

(1) Relate to the factual, scientific, legal or related issues under consideration;

(2) Be dated and signed by the author;

(3) Be directed to the file, to appropriate supervisory personnel, and to other appropriate employees, and show all persons to whom copies were sent;

(4) Avoid defamatory language, intemperate remarks, undocumented charges, or irrelevant matters (e.g., personnel complaints);

(5) If it records the views, analyses, recommendations, or decisions of an agency employee in addition to the author, be given to the other employees; and

(6) Once completed (i.e., typed in final form, dated, and signed) not be altered or removed. Later additions to or revisions of the document must be made in a new document.

(d) Memoranda or other documents that are prepared by agency employees and are not in the administrative file have no status or effect.

(e) FDA employees working on a matter have access to the administrative file on that matter, as appropriate for the conduct of their work. FDA employees who have worked on a matter have access to the administrative file on that matter so long as attention to their assignments is not impeded. Reasonable restrictions may be placed upon access to assure proper cataloging and storage of documents, the availability of the file to others, and the completeness of the file for review.

Notes of Decisions

Cited in 3 cases (1 in the last 5 years), 1992–2021 · leading case: Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs., 849 F. Supp. 2d 13 (D.D.C. 2012).

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Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs., 849 F. Supp. 2d 13 (D.D.C. 2012). “certain [FDA] employees, including individual plaintiffs, about certain managers at the FDA Center for Devices and Radiological Health (CDRH), regarding allegations that those managers engaged in misconduct relating to the scientific review of applications for pre-market…”

Benten Ex Rel. Tyrer v. Kessler, 799 F. Supp. 281 (E.D.N.Y 1992). · cites it 2× “§§ 706 (2)(A) and 553, 21 C.F.R. § 10.70 , and the United States Constitution — seeks to secure the return of a small quantity of the abortifacient drug Mifepristone, known colloquially as RU486, seized by the defendants from two of the plaintiffs on July 1,1992, at John F.”

Milanesi v. C.R. Bard, Inc. (S.D. Ohio 2021). “) The FDA concluded that “[t]here [was] no evidence of material violations of 21 CFR Part 10.70, other relevant rules or regulations by FDA/CDRH management,” and “[t]here was no evidence of retaliation by FDA/CDRH management against complainants.”

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