[Federal Register Volume 79, Number 120 (Monday, June 23, 2014)]
[Notices]
[Pages 35550-35558]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14547]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2014-N-0670]


Authorization of Emergency Use of an In Vitro Diagnostic Device 
for Detection of Novel Influenza A (H7N9) Virus; Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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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 influenza 
A (H7N9) virus (detected in China in 2013). FDA is issuing this 
Authorization under the Federal Food, Drug, and Cosmetic Act (the FD&C 
Act), as requested by Arbor Vita Corporation. The Authorization 
contains, among other things, conditions on the emergency use of the 
authorized in vitro diagnostic device. The Authorization follows the 
April 19, 2013, 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 and 
that involves the novel influenza A (H7N9) virus. On the basis of such 
determination, the Secretary of HHS also declared on April 19, 2013, 
that circumstances exist justifying the authorization of emergency use 
of in vitro diagnostics for detection of the novel 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 25, 2014.

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. 1, Rm. 4338, Silver 
Spring, MD 20993-0002. 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, and Acting Deputy Chief Scientist, Food and Drug 
Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4340, 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 Act (PHS Act) (42 U.S.C. 247d-6b) sufficient to affect national 
security or the health and security of U.S. citizens living abroad.
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    \1\ As amended by the Pandemic and All-Hazards Preparedness 
Reauthorization Act of 2013 (Public Law 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 of HHS 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.
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    Once the Secretary of HHS 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 the Centers for Disease Control and 
Prevention (to the extent feasible and appropriate given the applicable 
circumstances),

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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 
of the FD&C Act, 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 may be prescribed by regulation are 
satisfied.
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    \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.
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    No other criteria for 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 Device for Detection of the 
Novel Influenza A (H7N9) Virus

    On April 19, 2013, under section 564(b)(1)(C) of the FD&C Act, 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 and that involves the novel 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 influenza A (H7N9) virus, 
subject to the terms of any authorization issued under section 564 of 
the FD&C Act. The Secretary of HHS 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, 
December 22, 2008). Notice of the determination and the declaration of 
the Secretary were published in the Federal Register on April 30, 2013 
(78 FR 25273). On April 9, 2014, Arbor Vita Corporation submitted a 
complete request for, and on April 25, 2014, FDA issued, an EUA for the 
A/H7N9 Influenza Rapid Test 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 influenza A (H7N9) virus (detected in China in 
2013) 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.
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    Dated: June 16, 2014.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2014-14547 Filed 6-20-14; 8:45 am]
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