[Federal Register Volume 77, Number 138 (Wednesday, July 18, 2012)]
[Proposed Rules]
[Pages 42195-42197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17533]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 77, No. 138 / Wednesday, July 18, 2012 /
Proposed Rules
[[Page 42195]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 107
[Docket No. APHIS-2011-0048]
RIN 0579-AD66
Viruses, Serums, Toxins, and Analogous Products; Exemptions From
Preparation Pursuant to an Unsuspended and Unrevoked License
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to amend the Virus-Serum-Toxin Act
regulations to require that veterinary biologics prepared under the
veterinary practitioner exemption must be prepared at the same facility
the veterinarian utilizes in conducting the day-to-day activities
associated with his or her practice. This exemption applies to
veterinary biologics prepared by a veterinary practitioner solely for
administration to animals in the course of a State-licensed
professional practice of veterinary medicine under a veterinarian-
client-patient relationship. This proposed amendment is necessary to
ensure that veterinary biologics are not prepared in unlicensed
establishments in violation of the Virus-Serum-Toxin Act. The effect of
the proposed amendment would be to clarify the regulations regarding
the preparation of product by a veterinary practitioner under a
veterinarian-client-patient relationship.
DATES: We will consider all comments that we receive on or before
September 17, 2012.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0048-0001.
Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2011-0048, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
Supporting documents and any comments we receive on this docket may
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2011-
0048 or in our reading room, which is located in room 1141 of the USDA
South Building, 14th Street and Independence Avenue SW., Washington,
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through
Friday, except holidays. To be sure someone is there to help you,
please call (202) 799-7039 before coming.
FOR FURTHER INFORMATION CONTACT: Dr. Donna Malloy, Operational Support
Section, Center for Veterinary Biologics, Policy, Evaluation, and
Licensing, VS, APHIS, 4700 River Road Unit 148, Riverdale, MD 20737-
1231; phone (301) 851-3426, fax (301) 734-4314.
SUPPLEMENTARY INFORMATION:
Background
The regulations in Title 9, Code of Federal Regulations (9 CFR),
parts 101-118 (referred to below as the regulations) contain provisions
implementing the Virus-Serum-Toxin Act (the Act), as amended (21 U.S.C.
151-159). These regulations are administered by the Animal and Plant
Health Inspection Service (APHIS) of the U.S. Department of Agriculture
(USDA). The Act prohibits the preparation, sale, and shipment of
veterinary biological products in or from the United States unless such
products have been prepared under and in compliance with USDA
regulations at an establishment holding an unsuspended and unrevoked
license issued by USDA.
In part 102 of the regulations, Sec. Sec. 102.1 and 102.2 require
that each establishment and every person preparing biological products
subject to the Act must hold an unexpired, unsuspended, and unrevoked
U.S. Veterinary Biologics Establishment License issued by the
Administrator and a U.S. Veterinary Biological Product License for each
product prepared in such establishment. Part 107 of the regulations
contains exemptions from the requirement for preparation pursuant to
unsuspended and unrevoked establishment and product licenses. One of
those exemptions, found in Sec. 107.1(a), allows for product to be
prepared by a veterinary practitioner solely for administration to
animals in the course of his or her State-licensed professional
practice of veterinary medicine under a veterinarian-client-patient
relationship. The regulations in Sec. 107.1(a)(1) set forth the
criteria that must be satisfied in order to establish the existence of
a veterinarian-client-patient relationship.
Recently, it has come to APHIS' attention that some veterinary
practitioners may be entering into contractual agreements whereby
product would be prepared by a commercial laboratory/manufacturing
facility (unlicensed vaccine manufacturing establishment) rather than
by the practitioner at the facility he or she uses to conduct the day-
to-day activities associated with his or her State licensed practice of
veterinary medicine. Such arrangements in which an unlicensed
establishment, acting as an agent for the practitioner, prepares the
product and sells and ships/transports the product directly to the
animal owner creates a situation in which product is prepared, sold,
and shipped in violation of the Act. Specifically, the Act states that
no person, firm, or corporation shall prepare, sell, barter, exchange,
or ship any virus, serum, toxin, or analogous product manufactured
within the United States and intended for the treatment of animals,
unless and until the said virus, serum, toxin, or analogous product
shall have been prepared, under and in compliance with regulations at
an establishment holding an unsuspended and unrevoked license issued by
the Secretary of Agriculture.
While part 107 of the regulations specifies the licensing exemption
for product prepared by veterinary practitioners and sets forth the
requirements for showing that a veterinarian-client-patient
relationship exists, it appears that, given the instances described in
the previous paragraph, some clarification is necessary with respect to
the issue of the relationship between the veterinary practitioner and
the facility where the product is prepared. The purpose of this
provision is to allow a veterinarian to prepare veterinary biologics at
the location where she or he operates a veterinary practice, which
would not be
[[Page 42196]]
licensed under the Act, and to transport it away from that facility
when necessary, for administration to an animal or animals under a
veterinarian-client-patient relationship without violating the Act.
However, no provision in the Act or the regulations would allow a
veterinary practitioner to take advantage of the licensing exemption
while at the same time consigning the actual preparation of the product
to a commercial laboratory/manufacturing establishment which would then
exchange or deliver the product to a third party. An arrangement such
as this is contrary to the statutory requirement that prohibits a
person, firm, or corporation from preparing, selling, bartering,
exchanging, or shipping a veterinary biologic intended for use in the
treatment of animals unless and until such product shall have been
prepared in compliance with the regulations in a USDA licensed
establishment (see 21 U.S.C. 151).
In order to ensure that product subject to the exemption for
products prepared by veterinarians solely for administration to animals
in the course of a State licensed professional practice of veterinary
medicine under a veterinarian-client-patient relationship is prepared
in accordance with the requirements of the Virus-Serum-Toxin Act, APHIS
is proposing to amend its regulations by adding clarifying language to
Sec. 107.1 emphasizing the requirement that the exemption from
preparation pursuant to unsuspended and unrevoked product and
establishment licenses applies only to product prepared by the
veterinary practitioner (or by a supervised veterinary assistant) at
the facility such veterinarian uses in the day-to-day operation of his/
her State-licensed professional practice of veterinary medicine.
The proposed amendment would clarify that the preparation of
product prepared by a veterinarian solely for administration to animals
in the course of a State-licensed professional practice of veterinary
medicine under a veterinarian-client-patient relationship shall only be
done at a facility routinely used in the day-to-day operation of a
professional practice of veterinary medicine.
We also propose to make minor changes to Sec. 107.1 to replace the
term ``establishments'' with ``facilities.'' As discussed above, Sec.
107.1 exempts product prepared by a veterinary practitioner from
preparation pursuant to an unsuspended and unrevoked product and
establishment license. However, Sec. 107.1 refers to the sites of such
production as ``establishments,'' which is confusing because that term
is used elsewhere in the regulations to refer only to production sites
that are not exempt from the license requirement. For example, the
definitions in Sec. 101.2 define establishment as ``One or more
premises designated on the establishment license.'' Therefore, in Sec.
107.1 where we refer to the exemption for the site of day-to-day
operation of a veterinarian's State-licensed professional practice, we
would use the term ``facilities'' rather than ``establishments.''
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been determined to be not significant for
the purposes of Executive Order 12866 and, therefore, has not been
reviewed by the Office of Management and Budget.
This proposed rule would amend the regulations in Sec. 107.1 to
clarify that the preparation of biological products pursuant to the
exemption in paragraph (a)(1) of that section must take place at the
same facility that the veterinarian preparing the product utilizes in
conducting the day-to-day activities associated with his/her State-
licensed professional practice of veterinary medicine.
As noted previously in this proposed rule, no provision in the Act
or the regulations allows a veterinary practitioner to take advantage
of the licensing exemption while at the same time consigning the actual
preparation of the product to a commercial laboratory or other
manufacturing establishment which would then exchange or deliver the
product to a third party. An arrangement such as this is contrary to
the statutory requirement that prohibits a person, firm, or corporation
from preparing, selling, bartering, exchanging, or shipping a
veterinary biologic intended for use in the treatment of animals unless
and until such product shall have been prepared in compliance with the
regulations in a USDA licensed establishment.
Therefore, this proposed amendment to the regulations is simply a
clarification of an existing and longstanding prohibition. The proposed
amendment would not change the nature of the exemption, the number of
veterinary practitioners who are eligible to take advantage of the
exemption, or the criteria that must be satisfied in order to establish
the existence of a veterinarian-client-patient relationship, nor would
it add any reporting or recordkeeping burden. It is possible that there
may be one or several veterinary practitioners that currently contract
with an unlicensed commercial laboratory or manufacturing facility to
produce veterinary biologics in violation of the Act. These entities
could be affected if they become aware of the violation through
publication of this proposed rule and discontinue the prohibited
activity, but that effect could also occur at any time under the
current regulations if APHIS receives specific evidence of such a
violation and orders its cessation.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action would
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the category of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
This rule would not preempt any State or local laws, regulations, or
policies where they are necessary to address local disease conditions
or eradication programs. However, where safety, efficacy, purity, and
potency of biological products are concerned, it is the Agency's intent
to occupy the field. Under the Act, Congress clearly intended that
there be national uniformity in the regulation of these products, and
APHIS will continue to take enforcement action as necessary against
practitioners and production facilities with regard to veterinary
biologics produced or distributed in contravention of the Act. There
are no administrative proceedings which must be exhausted prior to a
judicial challenge to the regulations under this rule.
Paperwork Reduction Act
This proposed rule contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 9 CFR Part 107
Animal biologics, Reporting and recordkeeping requirements.
Accordingly, we propose to amend 9 CFR part 107 as follows:
[[Page 42197]]
PART 107--EXEMPTIONS FROM PREPARATION PURSUANT TO AN UNSUSPENDED
AND UNREVOKED LICENSE
1. The authority citation for part 107 continues to read as
follows:
Authority: 21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.
2. Section 107.1 is amended as follows:
a. In the introductory text and in paragraph (a)(1), by removing
the word ``establishments'' and adding the word ``facilities'' in its
place.
b. By redesignating paragraph (a)(2) as paragraph (a)(3) and adding
a new paragraph (a)(2) to read as follows:
Sec. 107.1 Veterinary practitioners and animal owners.
* * * * *
(a) * * *
(2) All steps in the preparation of product being prepared under
the exemption in paragraph (a)(1) of this section must be performed at
the facilities that the veterinarian utilizes for the day-to-day
activities associated with the treatment of animals in the course of
his/her State-licensed professional practice of veterinary medicine. A
veterinary assistant employed by the veterinary practitioner and
working at the veterinary practice's facility under the veterinarian's
direct supervision may perform the steps in the preparation of product.
Such preparation may not be consigned to any other party or sub-
contracted to a commercial laboratory/manufacturing facility.
* * * * *
Done in Washington, DC, this 12th day of July 2012.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2012-17533 Filed 7-17-12; 8:45 am]
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