[Federal Register Volume 78, Number 122 (Tuesday, June 25, 2013)]
[Notices]
[Pages 38044-38052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15096]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2013-N-0651]
Authorization of Emergency Use of an In Vitro Diagnostic for
Detection of the Novel Avian Influenza A(H7N9) Virus; Availability
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is announcing the
issuance of an Emergency Use Authorization (EUA) (the Authorization)
for an in vitro diagnostic device for detection of the novel avian
influenza A(H7N9) virus. FDA is issuing this Authorization under the
Federal Food, Drug, and Cosmetic (FD&C) Act, as requested by the
Centers for Disease Control and Prevention (CDC). The Authorization
contains, among other things, conditions on the emergency use of the
authorized in vitro diagnostic device. The Authorization follows the
determination by the Secretary of Health and Human Services (HHS) that
there is a significant potential for a public health emergency that has
a significant potential to affect national security or the health and
security of U.S. citizens living abroad that involves the novel avian
influenza A(H7N9) virus. On the basis of such determination, the
Secretary also declared that circumstances exist justifying the
authorization of emergency use of in vitro diagnostics for detection of
the novel avian influenza A(H7N9) virus subject to the terms of any
authorization issued under the FD&C Act. The Authorization, which
includes an explanation of the reasons for issuance, is reprinted in
this document.
DATES: The Authorization is effective as of April 22, 2013.
ADDRESSES: Submit written requests for single copies of the EUA to the
Office of Counterterrorism and Emerging Threats, Food and Drug
Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 4121, Silver
Spring, MD 20993-
[[Page 38045]]
0002. Send one self-addressed adhesive label to assist that office in
processing your request or include a fax number to which the
Authorization may be sent. See the SUPPLEMENTARY INFORMATION section
for electronic access to the Authorization.
FOR FURTHER INFORMATION CONTACT: Luciana Borio, Assistant Commissioner
for Counterterrorism Policy, Office of Counterterrorism and Emerging
Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg.
32, Rm. 4118, Silver Spring, MD 20993-0002, 301-796-8510 (this is not a
toll free number).
SUPPLEMENTARY INFORMATION:
I. Background
Section 564 of the FD&C Act (21 U.S.C. 360bbb-3), as amended by the
Project BioShield Act of 2004 (Pub. L. 108-276) and the Pandemic and
All-Hazards Preparedness Reauthorization Act of 2013 (Pub. L. 113-5),
allows FDA to strengthen the public health protections against
biological, chemical, nuclear, and radiological agents. Among other
things, section 564 of the FD&C Act allows FDA to authorize the use of
an unapproved medical product or an unapproved use of an approved
medical product in certain situations. With this EUA authority, FDA can
help assure that medical countermeasures may be used in emergencies to
diagnose, treat, or prevent serious or life-threatening diseases or
conditions caused by biological, chemical, nuclear, or radiological
agents when there are no adequate, approved, and available
alternatives.
Section 564(b)(1) of the FD&C Act provides that, before an EUA may
be issued, the Secretary of HHS must declare that circumstances exist
justifying the authorization based on one of the following grounds: (1)
A determination by the Secretary of Homeland Security that there is a
domestic emergency, or a significant potential for a domestic
emergency, involving a heightened risk of attack with a biological,
chemical, radiological, or nuclear agent or agents; (2) a determination
by the Secretary of Defense that there is a military emergency, or a
significant potential for a military emergency, involving a heightened
risk to U.S. military forces of attack with a biological, chemical,
radiological, or nuclear agent or agents; (3) a determination by the
Secretary of HHS that there is a public health emergency, or a
significant potential for a public health emergency, that affects, or
has a significant potential to affect, national security or the health
and security of U.S. citizens living abroad, and that involves a
biological, chemical, radiological, or nuclear agent or agents, or a
disease or condition that may be attributable to such agent or agents;
\1\ or (4) the identification of a material threat by the Secretary of
Homeland Security pursuant to section 319F-2 of the Public Health
Service (PHS) Act (42 U.S.C. 247d-6b) sufficient to affect national
security or the health and security of U.S. citizens living abroad.
---------------------------------------------------------------------------
\1\ As amended by the Pandemic and All-Hazards Preparedness
Reauthorization Act of 2013 (Pub. L. 113-5), the Secretary of HHS
may make a determination of a public health emergency, or a
significant potential for a public health emergency, under section
564 of the FD&C Act. The Secretary is no longer required to make a
determination of a public health emergency under section 319 of the
PHS Act, 42 U.S.C. 247d, to support a determination made under
section 564 of the FD&C Act.
---------------------------------------------------------------------------
Once the Secretary has declared that circumstances exist justifying
an authorization under section 564 of the FD&C Act, FDA may authorize
the emergency use of a drug, device, or biological product if the
Agency concludes that the statutory criteria are satisfied. Under
section 564(h)(1) of the FD&C Act, FDA is required to publish, in the
Federal Register, a notice of each authorization, and each termination
or revocation of an authorization, and an explanation of the reasons
for the action. Section 564 of the FD&C Act permits FDA to authorize
the introduction into interstate commerce of a drug, device, or
biological product intended for use when the Secretary of HHS has
declared that circumstances exist justifying the authorization of
emergency use. Products appropriate for emergency use may include
products and uses that are not approved, cleared, or licensed under
sections 505, 510(k), or 515 of the FD&C Act (21 U.S.C. 355, 360(k),
and 360e) or section 351 of the PHS Act (42 U.S.C. 262). FDA may issue
an EUA only if, after consultation with the HHS Assistant Secretary for
Preparedness and Response, the Director of the National Institutes of
Health, and the Director of CDC (to the extent feasible and appropriate
given the applicable circumstances), FDA \2\ concludes: (1) That an
agent referred to in a declaration of emergency or threat can cause a
serious or life-threatening disease or condition; (2) that, based on
the totality of scientific evidence available to FDA, including data
from adequate and well-controlled clinical trials, if available, it is
reasonable to believe that: (A) The product may be effective in
diagnosing, treating, or preventing--(i) such disease or condition; or
(ii) a serious or life-threatening disease or condition caused by a
product authorized under section 564, approved or cleared under the
FD&C Act, or licensed under section 351 of the PHS Act, for diagnosing,
treating, or preventing such a disease or condition caused by such an
agent; and (B) the known and potential benefits of the product, when
used to diagnose, prevent, or treat such disease or condition, outweigh
the known and potential risks of the product, taking into consideration
the material threat posed by the agent or agents identified in a
declaration under section 564(b)(1)(D) of the FD&C Act, if applicable;
(3) that there is no adequate, approved, and available alternative to
the product for diagnosing, preventing, or treating such disease or
condition; and (4) that such other criteria as the Secretary of HHS may
by regulation prescribe are satisfied.
---------------------------------------------------------------------------
\2\ The Secretary of HHS has delegated the authority to issue an
EUA under section 564 of the FD&C Act to the Commissioner of Food
and Drugs.
---------------------------------------------------------------------------
No other criteria of issuance have been prescribed by regulation
under section 564(c)(4) of the FD&C Act. Because the statute is self-
executing, regulations or guidance are not required for FDA to
implement the EUA authority.
II. EUA Request for an In Vitro Diagnostic for Detection of the Novel
Avian Influenza A(H7N9) Virus
On April 19, 2013, under section 564(b)(1)(C) of the FD&C Act (21
U.S.C. 360bbb-3(b)(1)(C)), the Secretary of HHS determined that there
is a significant potential for a public health emergency that has a
significant potential to affect national security or the health and
security of U.S. citizens living abroad that involves the novel avian
influenza A(H7N9) virus. Also on April 19, 2013, under section
564(b)(1) of the FD&C Act, and on the basis of such determination, the
Secretary of HHS declared that circumstances exist justifying the
authorization of emergency use of in vitro diagnostics for detection of
the novel avian influenza A(H7N9) virus, subject to the terms of any
authorization issued under section 564 of the FD&C Act. The Secretary
also specified that this declaration is a declaration of an emergency
with respect to in vitro diagnostics as defined under the Public
Readiness and Emergency Preparedness (PREP) Act Declaration for
Pandemic Influenza Diagnostics, Personal Respiratory Protection
Devices, and Respiratory Support Devices signed by then Secretary
Michael Leavitt on December 17, 2008 (73 FR 78362). Notice of the
determination and the declaration of the Secretary were published in
the Federal
[[Page 38046]]
Register on April 30, 2013 (78 FR 25273). On April 19, 2013, CDC
requested, and on April 22, 2013, FDA issued an EUA for the CDC Human
Influenza Virus Real-Time RT-PCR Diagnostic Panel-Influenza A/H7
(Eurasian Lineage) Assay subject to the terms of this authorization.
III. Electronic Access
An electronic version of this document and the full text of the
Authorization are available on the Internet at http://www.regulations.gov.
IV. The Authorization
Having concluded that the criteria for issuance of the
Authorization under section 564(c) of the FD&C Act are met, FDA has
authorized the emergency use of an in vitro diagnostic device for
detection of the novel avian influenza A(H7N9) virus subject to the
terms of the Authorization. The Authorization in its entirety (not
including the authorized versions of the fact sheets and other written
materials) follows and provides an explanation of the reasons for its
issuance, as required by section 564(h)(1) of the FD&C Act:
BILLING CODE 4160-01-P
[[Page 38047]]
[GRAPHIC] [TIFF OMITTED] TN25JN13.001
[[Page 38048]]
[GRAPHIC] [TIFF OMITTED] TN25JN13.002
[[Page 38049]]
[GRAPHIC] [TIFF OMITTED] TN25JN13.003
[[Page 38050]]
[GRAPHIC] [TIFF OMITTED] TN25JN13.004
[[Page 38051]]
[GRAPHIC] [TIFF OMITTED] TN25JN13.005
[[Page 38052]]
[GRAPHIC] [TIFF OMITTED] TN25JN13.006
Dated: June 19, 2013.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2013-15096 Filed 6-24-13; 8:45 am]
BILLING CODE 4160-01-C