[Federal Register Volume 65, Number 182 (Tuesday, September 19, 2000)]
[Rules and Regulations]
[Pages 56468-56480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23887]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 7, 10, 14, 19, 25, 101, 107, 110, 114, 170, 310, 312,
314, 316, 500, 514, 601, 803, 814, and 860
[Docket No. 99N-4783]
Administrative Practices and Procedures; Good Guidance Practices
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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SUMMARY: The Food and Drug Administration (FDA) is amending its
administrative regulations to codify its policies and procedures for
the development, issuance, and use of guidance documents. This action
is necessary to comply with requirements of the Food and Drug
Administration Modernization Act of 1997 (the Modernization Act). The
Modernization Act codified certain parts of the agency's current ``Good
Guidance Practices'' (GGP's) and directed the agency to issue a
regulation consistent with the act that specifies FDA's policies and
procedures for the development, issuance, and use of guidance
documents. The intended effect of this regulation is to make the
agency's procedures for development, issuance, and use of guidance
documents clear to the public.
DATES: This rule is effective October 19, 2000.
FOR FURTHER INFORMATION CONTACT: LaJuana D. Caldwell, Office of Policy
(HF-27), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD
20857, 301-827-7010.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 405 of the Modernization Act (Public Law 105-115),
statutory provisions on guidance documents were added to the Federal
Food, Drug, and Cosmetic Act (the act) in section 701(h) (21 U.S.C.
371(h)). In the Federal Register of February 14, 2000 (65 FR 7321), we
(FDA) proposed changes to our existing part 10 (21 CFR part 10)
regulations to clarify our procedures for the development, issuance,
and use of guidance documents. Interested parties were given until May
1, 2000, to comment on the proposal.
II. Description of the Final Rule
A. Comments and Agency Response
We received 18 comments on the proposed rule, largely from trade
organizations. The comments we received generally supported the
policies and procedures described in the GGP's.
1. General Comment
(Comment 1) One comment recommended that we include in this
preamble a list of generally accepted principles of a good guidance
document. The comment nominated several principles for inclusion on the
list.
We decline to develop a list of generally accepted principles of a
``good'' guidance document because we believe that the procedures
described in Sec. 10.115 reflect generally accepted principles for
developing, issuing, and using guidance documents. For example, a good
guidance document represents our current thinking on a matter and
clearly states that it does not establish legally enforceable
requirements. We expect each guidance document developed, issued, and
used under the rule to have the characteristics of a good guidance
document.
2. Definition of Guidance Documents
(Comment 2) One comment suggested that we include in the definition
of guidance documents those documents that describe our current
policies regarding labeling and promotion.
In our proposal, we defined guidance documents to include, among
other kinds of documents, those that relate to the design, production,
manufacturing, and testing of regulated products and those that relate
to inspection or enforcement policies. We interpret our definition to
include guidance documents about product labeling and promotion. We are
amending the definition in Sec. 10.115(b)(2) to clarify our intent to
include such topics as subjects for guidance documents.
3. Comprehensive List of Guidance Documents and Guidance Document
Agenda
(Comment 3) Several comments discussed the annual publication of
the comprehensive list of guidance documents and the guidance document
[[Page 56469]]
agenda. Some suggested that we continue to publish these lists on a
semiannual basis.
Some comments stated that yearly publication of the comprehensive
list is acceptable, particularly given that we maintain a current list
on the Internet.
One comment stated that annual publication of the guidance document
agenda would be reasonable if we include the status of each item on the
list and identify the highest priority guidance documents. Another
comment recommended that the agenda be posted on the Internet.
We believe that we provide adequate notice of and access to all
available guidance documents through two mechanisms. We annually
publish a comprehensive list of guidance documents in the Federal
Register and we maintain current (i.e., updated within 30 days of the
issuance of a new or newly revised guidance document or the deletion of
an obsolete guidance document) lists of guidance documents on the
Internet.
We also believe that we provide adequate notice of the guidance
document agenda through its annual publication in the Federal Register.
We will not include the status of each document on the agenda. Each
document listed on the agenda is being developed; further description
of document status would not be practical because it would be too
difficult to differentiate the stages of guidance document development.
We also do not believe it would be feasible to prioritize the documents
on the agenda. Often, resources allocated to the development of a
particular document are diverted to creating guidance documents
regarding other areas of greater public health need. As a result, our
priorities may change throughout the year and priorities stated on the
agenda would not remain accurate for an extended period of time. We try
to maintain a current (i.e., updated at least semiannually) guidance
document agenda on the Internet.
In efforts separate from this rulemaking, we are considering ways
to enhance our lists of guidance documents maintained on the Internet.
For example, we are trying to make the lists easier to navigate and
search. These enhancements may allow you to more efficiently find the
information you seek on the comprehensive list and the agenda.
(Comment 4) One comment suggested that we include a brief statement
describing each document on the comprehensive list.
We understand that much of the value of the comprehensive list lies
in its ability to convey the subject matter of each document on the
list. To provide this information adequately, we plan to ensure that
the titles or subtitles of documents convey the subject of the document
more precisely. The comprehensive list could become too cumbersome and
difficult to use if we added a description of the subject of each
document. Therefore, we will not include a separate statement
describing each document on the comprehensive list.
(Comment 5) A comment stated that the comprehensive list should
identify guidance documents that have been revised or are currently
being considered for revision.
Through the lists that we publish under the procedures previously
described, we already make the information requested in the comment
available to the public. On the comprehensive list, we include the date
of the last revision of a guidance document. This enables you to
identify those guidance documents that have been revised and the date
of the revision. In our guidance document agenda, we list guidance
documents that are under consideration for development or revision.
(Comment 6) In Sec. 10.115(c), we define two levels of guidance
documents, Level 1 and Level 2. The two levels of guidance documents
are subject to different procedures for public participation before
issuance. One comment suggested that we include the designation for
each document as Level 1 or Level 2 in the prospective list of guidance
documents.
We decline the suggestion to include the Level 1 or Level 2
designation for all documents on the guidance document agenda.
Generally, at the time we issue the agenda, we do not know the full
content of the proposed documents. Thus, a determination of whether a
document meets the criteria for a Level 1 designation
(Sec. 10.115(c)(1)) would be premature.
(Comment 7) One comment suggested that we make the guidance
document agenda more user-friendly by separating guidance documents on
cross-cutting issues from those that are technology-specific.
The purpose of the guidance document agenda is to notify you of
guidance documents we are developing so you may comment on topics for
new documents and possible revisions to existing documents. We believe
the guidance agenda is currently organized to disseminate this
information most effectively. The documents on the agenda are organized
by the issuing center or office and generally are further grouped by
topic categories. By separating guidance documents according to the
issuing center or office, we enable those of you who have interest in a
particular issue or type of product (e.g., food products) to focus on
documents that are being developed in one of the centers or offices
(e.g., the Center for Food Safety and Applied Nutrition). Guidance
documents that are being developed in more than one center or office
will appear on the agenda for each participating center or office.
Grouping documents on the agenda by subject category (e.g., electronic
submissions) provides you greater ability to focus on specific areas of
interest. After the effective date of the rule, we will group all
guidance documents on the agenda by subject category. This format is
consistent with the format of the comprehensive list of guidance
documents. We believe that the format suggested in the comment could
make the agenda difficult to use because you would not be able to
concentrate effectively on a particular topic of interest.
4. Public Input
(Comment 8) One comment suggested that we implement procedures to
give you the opportunity to comment on designation of a document as a
Level 1 or Level 2 guidance document before the decision is made.
We decline to adopt this suggestion. It is in the best interest of
promoting and preserving the public health that we be able to develop
guidance documents in a timely and efficient manner. If we solicited
comment on the level designation for each guidance document, we would
create a procedural hurdle that could significantly slow the guidance
development process. This delay in the development of guidance
documents would not serve us or you.
We determine whether a document is Level 1 or Level 2 based on the
criteria described in Sec. 10.115(c). If you disagree with the
designation of a document (e.g., if you believe that a guidance issued
as a Level 2 should have been issued as a Level 1), you may send us an
explanation of your reasons for disagreeing with our determination when
you comment on the guidance document. If, after issuance, you still
have a disagreement, you can appeal our designation using the dispute
resolution process.
(Comment 9) One comment suggested that we announce the development
and issuance of Level 2 documents in the Federal Register. Another
comment recommended that we receive comments on Level 2 guidance
[[Page 56470]]
documents before we issue them as final guidance.
We decline to amend our procedures for announcing and receiving
comment on Level 2 guidance documents. When we issue Level 2 documents,
they are immediately posted on the Internet. Also, their issuance is
announced in the comprehensive list of guidance documents that is
published annually in the Federal Register and maintained on the
Internet.
Under section 701(h)(1)(D) of the act, we must solicit public
comments ``upon implementation'' of guidance documents that describe
existing practices or minor changes in agency policy. We believe the
provisions of Sec. 10.115(g)(4) are consistent with the act and
describe adequate provisions for developing and issuing Level 2
guidance documents.
(Comment 10) Under Sec. 10.115(g)(1)(v), we may issue a second
draft of a guidance document and solicit comment on the document after
providing an opportunity for comment on the first draft. One comment
stated that two situations usually merit this procedure: When the first
draft guidance on a medical or scientific topic is highly controversial
and when the first draft guidance is in conflict with other widely
recognized sources of scholarly guidance (e.g., International
Conference on Harmonization guidance, pharmacopeial standards).
We agree that it may be appropriate for us to issue a second draft
of a guidance document in the two situations described in the comment.
In addition, it may also be appropriate for us to issue a second draft
guidance in other circumstances. For example, if we revise a document
for clarification, we may want to issue a second draft guidance
document to receive comment on whether our revisions made the document
easier to understand.
(Comment 11) One comment suggested that we allow the public to
request the deletion of guidance documents that are no longer useful.
Under Sec. 10.115(f), you can suggest that a document on the
comprehensive list of guidance documents or on the guidance document
agenda be revised or withdrawn if you find that the document is no
longer relevant or accurate. We amended the final rule to explicitly
state that you can suggest that a guidance be withdrawn
(Sec. 10.115(f)(4)).
(Comment 12) Many comments urged us to include a provision in the
regulation requiring us to provide written responses to public comments
or suggestions for revising guidance documents. One comment stated that
we should respond to each suggestion for a revision to an existing
guidance document within 90 days. Other comments stated that we should
explain to the public why we changed, or why we did not change, a
guidance document between the draft and final stages. Some comments
recommended that we provide general responses to comments grouped by
topic. Others suggested that we be required to issue a written response
when certain criteria are met (e.g., when a majority of the comments on
a guidance document concern the same issue).
We believe that it is in the public interest to have an efficient
process for developing guidance documents. The guidance document
development process would be hampered if we were required to respond to
each comment. When comments received are very significant or cause us
to revise a guidance, we often discuss those comments in the notice of
availability (NOA) for the final guidance or in the final guidance
document. We intend to continue this practice. However, making a firm
commitment to provide a written response to all comments when issuing a
final guidance would unnecessarily delay the issuance of the document.
(Comment 13) Two comments suggested that we be required to respond
to your proposals for draft guidance documents.
We agree with this comment. When you have taken the time to develop
a guidance document and submit it to us for review, you should receive,
at a minimum, an acknowledgment of receipt of the document. Therefore,
we are now accepting guidance document submissions at the Dockets
Management Branch. If you submit a document to us, you should designate
it as a ``Guidance Document Submission,'' include the name of the
center or office with oversight over the subject matter covered by the
guidance document, and submit the document to the Dockets Management
Branch (HFA-305), 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
The Dockets Management Branch will ensure that the document is
assigned a public docket number and it is sent to the appropriate
office or center. All proposed guidance documents will be available
through the public docket. We will send you a written acknowledgment
that we have received your document, and to the extent feasible, we
also will inform you of our actions regarding the document you have
submitted. These changes to the final rule are included in revised
Sec. 10.115(f)(3).
(Comment 14) We received many comments on early collaboration and
meetings to discuss guidance documents as they are being developed.
Generally, the comments were very supportive of our efforts to
facilitate early interaction with you. Some comments suggested that we
issue a clear policy about the procedures for collaboration and early
meetings. One suggested that we provide a means for industry to
recommend a particular collaborative approach for a guidance document
under development. Another comment recommended that we provide
opportunities for you to engage in ``real time dialogues'' with us
before we begin to write a draft or final guidance. The comment noted a
number of avenues for this type of collaboration, including joint task
forces, public and private meetings, advisory committee meetings, and
e-mail correspondence. Other comments stated that certain agency
components had refused to meet about a guidance document before that
document was issued in draft. One comment specifically requested that
we use more mandatory language regarding preproposal collaboration with
you.
We agree that early collaboration (i.e., input from you in the
early stage of developing the approach we will take in a new or revised
guidance document) can be a very valuable tool in developing regulatory
guidance. We have created several mechanisms to encourage early input,
including the following:
We provide an opportunity to suggest new or revised
guidance.
We publish an agenda of the guidance documents that we are
working on and request your comments on the agenda.
We notify you when we issue draft guidance documents and
request your comments on the drafts.
We may hold meetings or workshops even before we develop a
draft document.
We encourage your involvement in our development of guidance
documents. Often, we develop guidance documents based on your
suggestions. We solicit your comments on draft guidance documents
because our views are not yet finalized and we want your input on the
contents of the final guidance.
We understand that you would like to meet with us more regarding
the development of guidance documents. Our policies on meeting with the
public on guidance development are evolving. In efforts separate from
this rulemaking, we are exploring ways to increase this interaction
within the confines of applicable statutes and regulations, and
[[Page 56471]]
are considering our need to provide all interested parties access to
the process, our interest in issuing documents in a timely manner, and
our resource constraints. We welcome your suggestions in this area.
(Comment 15) One comment proposed establishing a mechanism in
Sec. 10.115(g) whereby companies can fund a market research initiative
that would permit us, through questionnaires, focus groups, and other
techniques, to obtain input on proposed policies directly from
patients, doctors, and other stakeholders.
We welcome input from patients, doctors, and other stakeholders. We
believe that the procedures described in Sec. 10.115, especially our
increased use of the Internet to disseminate information, provide
adequate avenues for patient, doctor, and stakeholder involvement in
the development of our policies. We decline at this time to establish a
funded market research initiative because administering such a program
would divert personnel resources from other public health priorities.
(Comment 16) One comment suggested that we consider interactive
techniques, such as town hall meetings, that may encourage industry
input on setting priorities for the development of guidance documents
listed on the agenda.
We welcome industry input on prioritizing our development of
guidance documents. We believe that the procedures described in the
GGP's on the guidance document agenda, especially our increased use of
the Internet to disseminate the agenda and our request for comments on
the agenda, provide adequate avenues for industry and others to assist
us in prioritizing guidance documents. Furthermore, the agenda is only
one of several mechanisms we use to solicit input on prioritizing the
guidance documents we are developing. For example, we may participate
in public meetings and public hearings and may raise guidance document
issues at advisory committee meetings. At this time, we decline to
change the GGP's in the manner suggested but will continue to consider
avenues for encouraging input at all stages of guidance development.
(Comment 17) One comment suggested that any proposed guidance
documents submitted to advisory committees be made public in a manner
that provides sufficient time for review before the meeting.
We agree that proposed guidance documents submitted to advisory
committees should be made public as soon as practicable to allow for a
review of those materials. We are working to ensure that this
information is made available in a timely manner.
5. Legal Effect of Guidance Documents
(Comment 18) We received several comments on the legal effect of
guidance documents. A number of comments referred to the statement in
the proposed regulation that we are willing to discuss an alternative
approach with you to ensure that it complies with the relevant statutes
and regulations (Sec. 10.115(c)(3)). The comments stated that if a
guidance document is not binding, the discussion of alternative
approaches should not be required.
The comments misinterpreted the intent of the statement in
Sec. 10.115(c)(3). If you take an alternative approach, you are not
required to discuss that approach with us. Instead, we are offering our
assistance to make sure that any alternative approach you take meets
the appropriate statutory or regulatory requirements. Discussing
alternative approaches may help you understand our interpretation of
the applicable statutes and regulations and may further our
understanding of the merits of your approach.
(Comment 19) Two comments suggested that compliance with a guidance
document should provide a company with a safe harbor from FDA
enforcement action. The comments recommended that we change the
regulation to require us to amend, or at least publish a proposal to
amend, a guidance document before initiating an enforcement action
against a company that acted in accordance with a guidance. The
comments also noted that if we do not provide a safe harbor from
enforcement, at a minimum, a company's action in accordance with a
guidance document should be evidence of the company's intent to comply
with our regulations.
Section 701(h)(1)(B) of the act provides that guidance documents
``shall not be binding on the Secretary.'' Creating a ``safe harbor''
in a guidance document that would preclude us from taking action would
impermissibly bind us. In issuing enforcement-related guidance
documents, we express our current thinking regarding regulatory matters
and believe this provides useful information. However, you always
remain independently responsible for complying with applicable statutes
and regulations. Whether you have complied with the law is determined
from the facts of each case.
(Comment 20) We received two comments suggesting that we clarify to
our staff that FDA may not cite failure to follow a guidance document
in any observation on Form FDA 483 (List of Inspectional Observations).
We agree with this comment. Guidance documents are not binding. An
enforcement action may be taken only when we find a violation of
statutory or regulatory requirements. If a guidance document contains a
reference to a regulatory or statutory requirement, then enforcement
action may be taken if the regulation or statutory requirement is
violated. Of course, enforcement action may be taken if a requirement
in a regulation or statute is violated whether or not there is a
reference to the requirements in any guidance document. We discuss this
issue in the GGP training we provide employees under Sec. 10.115(l)(1).
(Comment 21) We received one comment on how we should interpret a
draft guidance document during the time that it is out for comment,
before the document has been finalized. The comment suggested that we
maintain three categories of guidance documents: Draft, approvable, and
approved.
We believe the provisions of Sec. 10.115(g) sufficiently describe
both the process for issuing draft Level 1 guidance documents for
comment and the process of implementing Level 1 guidance documents
without comment when prior public participation is not feasible or
appropriate. We do not believe that adding more categories will improve
the process; instead, it could confuse the users of the documents.
Early in the process of developing the GGP's, comments strongly urged
the agency to streamline and simplify the nomenclature for guidance
documents. We have done so. If you are concerned about FDA's thinking
on an issue that is reflected only in a draft guidance, you should
contact the appropriate office within FDA to discuss the issue.
While a draft Level 1 guidance document is out for comment, you may
be concerned that the guidance will change based on comments received.
Because a guidance document represents the agency's current thinking on
a subject but it is not ever binding on FDA or outside parties, you
should not rely on any guidance document, draft or final. If you have
questions about compliance with statutory or regulatory requirements,
you can discuss those issues with an FDA employee.
6. Standard Elements
(Comment 22) We received two comments suggesting that the
designation as Level 1 or Level 2 be a standard element of each
guidance document.
[[Page 56472]]
We believe that the comment misinterpreted the significance of the
Level 1 or Level 2 designation. The designation of a guidance as Level
1 or Level 2 is only relevant when a guidance document or revision to a
guidance document is being developed. The designation is used to
indicate whether the proposed document or revision is significant
enough to warrant public comment before implementation. If the Level 1
or Level 2 determination remains with the document as a standard
element, it may be confusing. For example, if we make a very minor
revision to a guidance document that contains highly significant
issues, this revision would warrant a Level 2 determination for the
purposes of receiving comments. Affected parties should not assume that
the document contains issues that are less significant because of the
Level 2 designation, but rather that the change being made is not
significant.
(Comment 23) One comment suggested that we require as an element in
each guidance document a statement that explains why the document is
needed.
Guidance documents should be issued only when a need for guidance
exists. In each document, we generally include a background section
that states the reason for its issuance. We will continue to do this in
the future. However, although we acknowledge the utility of stating the
need for each guidance, we do not believe the statement should be
required. The advice we provide in a guidance document represents our
current thinking, regardless of whether we adequately explain the need
for the guidance. Therefore, we decline to make this information a
required element in our guidance documents.
(Comment 24) One comment suggested that statements of nonbinding
effect be prominently displayed on all guidance documents.
We agree with the comment. It is critical that all parties
understand that guidance documents do not bind us or you. We are
amending the regulation at Sec. 10.115(i)(1)(iv) to require that a
statement of the guidance document's nonbinding effect be displayed on
prominently each document. In the future, this statement will be placed
immediately below the title of the guidance document on the first page
of text and it will be in prominent (e.g., bold or italic) print.
7. Our Procedures
(Comment 25) In the proposed rule, we stated that we would not seek
public input prior to implementing a Level 1 guidance document if we
determine that prior public participation is not feasible or
appropriate (proposed Sec. 10.115(g)(2)). Several comments discussed
this exception to the prior public participation requirement. Two
comments stated that we should use the exception only in rare and
extraordinary circumstances. Other comments suggested that we only use
this exception in cases where there is a real, demonstrated public
health emergency, not just a theoretical emergency. Another comment
stated that when we use these procedures, we should provide a statement
of our reasons for not soliciting prior public participation.
Under section 701(h)(1)(C) of the act, we must ensure public
participation prior to the implementation of guidance documents unless
we determine that such prior public participation is not feasible or
appropriate. As discussed in the preamble to the proposed rule,
Sec. 10.115(g)(2) reflects the standard stated in the statute (65 FR
7321 at 7324). We anticipate that this exception will generally be used
when: (1) There are public health reasons for the immediate
implementation of the guidance document; (2) there is a statutory
requirement, executive order, or court order that requires immediate
implementation; or (3) the guidance document presents a less burdensome
policy that is consistent with public health. We agree that we should
explain why a document is being issued without prior public
participation when we issue the document. Generally, this explanation
is included in the NOA for the guidance document. We will continue to
follow this procedure in the future.
(Comment 26) One comment suggested that we adopt a 30-day grace
period for Level 1 guidance documents issued without prior public
participation.
A grace period would not be needed for a guidance document because
guidance is not binding on us or you. We do not enforce guidance
documents; we enforce applicable statutory and regulatory requirements.
We are committed to ensuring that you have the opportunity to
participate in guidance document development as much as possible.
Therefore, we will issue a Level 1 guidance document without prior
public participation only if it is not feasible or appropriate to
solicit your comments (e.g., a public health emergency or a court order
requires the issuance of the guidance and we need to make the document
available to the public as quickly as possible). A delay in
implementation would not be appropriate in such circumstances.
(Comment 27) One comment noted that there are times when a Level 2
guidance document may become controversial and suggested that we adopt
procedures whereby a Level 2 document could be withdrawn, redesignated
as a Level 1 document, and reissued in draft for public comment.
We believe that the GGP's implicitly provide us with the ability to
act as the comment describes. If our initial determination to issue a
guidance document or amended guidance document using Level 2 procedures
proves to be an incorrect decision because the document is highly
controversial when issued, we may withdraw the guidance document and
reissue it as a draft guidance document following Level 1 procedures
(i.e., publish an NOA in the Federal Register for the draft guidance
document and solicit comments on the draft). We do not believe the rule
should be amended to reflect these procedures.
(Comment 28) Two comments suggested that we use the Internet to the
greatest extent possible to disseminate guidance documents. Several
comments specifically requested that we allow submission of comments on
guidance documents through e-mail.
We use the Internet as our primary means of disseminating guidance
documents. In most cases, newly issued or revised guidance documents
are available on the Internet at the same time they are available
through other means (e.g., through the Dockets Management Branch). We
are developing new ways to use Internet technology to enhance our
ability to disseminate information to the public. In particular, we are
developing a system for providing access to all documents on the
Internet and facilitating e-mail submission of comments on guidance
documents.
(Comment 29) One comment suggested that we publish a new guidance
document within 30 days of changing our current thinking on a given
subject. This comment also urged us to amend the regulations to clarify
that the information in a guidance document may be relied on to be
currently acceptable to FDA.
We agree that guidance documents should reflect our current
thinking on a given subject. We try to ensure that our documents are
current. However, we allocate our limited resources to the areas of
greatest public health need. Although GGP's help to ensure a greater
level of public participation in guidance development, following these
procedures often means that it takes
[[Page 56473]]
longer to issue guidance documents. Therefore, we will not commit
ourselves to issuing guidance documents within a specific timeframe. We
need flexibility to allocate our resources as we see fit, for example,
to an area that presents more significant public health issues.
In response to the second part of the comment, Sec. 10.115(d)(3) of
the final rule clearly states that guidance documents represent the
agency's current thinking on the subject of the document, and that FDA
employees may depart from guidance documents only with appropriate
justification and supervisory concurrence.
(Comment 30) One comment stated that if we depart from a guidance
document on multiple occasions, we should consider revising the
document. A similar comment noted that when a change in policy allows
deviation from a guidance document, we should amend the document to
indicate the existence of limited exceptions.
As discussed previously, guidance documents should represent our
current thinking on the matters discussed in the documents. Our
consistent deviation from a guidance document might suggest that we
should revise it. Furthermore, we should amend guidance documents to
clarify any changes in our interpretation of a guidance document. As
resources allow, we will continue to update and revise guidance
documents to reflect our current thinking.
(Comment 31) One comment suggested that we provide written
justification for deviating from a guidance document.
As discussed in the preamble to the proposed rule (65 FR 7321 at
7327), we agree that our employees should not deviate from guidance
without appropriate justification and supervisory concurrence. However,
because guidance documents are not legally binding, we do not believe
that we should provide written notice stating the reasons for such
deviations. If we are asked to explain why we are deviating from a
guidance document, we will do so.
(Comment 32) One comment suggested that we consolidate guidance
documents addressing identical topics, those covering one topic that
applies to several premarketing application types, and those containing
identical premarketing application elements for similar product lines.
This comment also noted that some currently available guidance
documents are obsolete, redundant, or no longer appropriate.
We consolidate similar guidance documents when feasible and
appropriate. Our primary concern is to issue documents that represent
our current thinking on a particular matter. On balance, the benefit of
having consolidated guidance documents is often outweighed by the
burden of reissuing the documents. Furthermore, consolidated documents
may be too cumbersome to be user-friendly.
We agree that documents that are obsolete, redundant, or no longer
appropriate should be revised or withdrawn so they do not create
confusion. During the past few years, we have tried to eliminate or
revise documents when appropriate, given our resource constraints. We
will continue this practice. Section 10.115(f) provides you with an
opportunity to suggest documents that should be eliminated or revised.
(Comment 33) One comment noted that we should not use guidance
documents as a replacement for notice-and-comment rulemaking.
We agree with this comment and believe that in certain
circumstances regulations should be issued, while in other
circumstances issuance of a guidance document is more appropriate. We
carefully consider whether a document that contains binding
requirements should be issued. This decision ultimately determines
whether it is more appropriate for us to issue regulations or guidance
on a given subject.
(Comment 34) We received several comments on our dispute resolution
process. One comment suggested that we establish a systematic review
process for external auditors to examine the decisions of our staff and
to determine whether the application of a guidance document was
appropriate. One comment encouraged us to develop an appeals process to
address complaints about our development and use of guidance documents,
stating that this appeals process is required by the Modernization Act.
Other comments suggested that we describe the normal appeals process
for disputes about the content of a guidance document in this final
rule.
We appreciate the importance of providing effective mechanisms for
dispute resolution and recognize that guidance documents need to be
developed, issued, and used in a manner that is consistent with GGP's.
However, we believe that an evaluation of our current dispute
resolution system by an external auditor is unnecessary. We are
required under section 405 of the Modernization Act to ensure that an
effective appeals mechanism is in place to address complaints about our
development and use of guidance documents. We believe that we have such
a mechanism in place.
If you believe that an FDA staff member did not follow the GGP's,
including any situation where you believe a staff member treated a
guidance document as binding, under Sec. 10.115(o) you can raise the
issue with that staff member's supervisor. If the issue cannot be
resolved, you can continue raising it through the chain of command.
These procedures complement our dispute resolution regulation in
Sec. 10.75 (internal review of decisions). You can also use the
procedures in Sec. 10.75 to appeal a decision on the GGP's. We are
amending the final rule to provide another means for raising an issue
about our implementation of the GGP's. Under amended Sec. 10.115(o),
you can contact the ombudsman of the center or office with which you
have a dispute and seek the ombudsman's assistance in resolving the
issue. Finally, if you feel that you are not making progress or if you
are unable to resolve the issue at the center or office level, you can
request that our Chief Mediator and Ombudsman become involved. Each
center and office has made or will make available its own guidance
documents on specific procedures for resolving disputes.
You may also petition us under Sec. 10.30 (citizen petitions) and
request that we formally resolve your issue.
(Comment 35) One comment suggested that we explicitly state that
guidance documents apply to all parties who work in the area addressed
by the document. The comment stated that historically, we have not
applied guidance documents uniformly to work undertaken by different
individuals.
In each document, we generally include an introductory section that
states the intended audience of the guidance document (e.g.,
applicants, reviewers). The guidance document applies to all members of
the intended audience. If you believe that an FDA staff member is not
interpreting the document appropriately, you can follow the dispute
resolution procedures described previously and in Sec. 10.115(o).
(Comment 36) One comment suggested that we post the names and
titles of the supervisors for each center/office on our Internet home
page (www.fda.gov).
We agree that information about the individuals to contact
regarding the resolution of a dispute should be readily available. This
information is currently on the Internet for all of the centers and
offices. You can find the organizational charts at the following
Internet addresses:
[[Page 56474]]
Table 1.
----------------------------------------------------------------------------------------------------------------
Center or Office Organizational Chart Internet address
----------------------------------------------------------------------------------------------------------------
Center for Biologics Evaluation and Research www.fda.gov/cber/inside/orgchart.pdf
Center for Devices and Radiological Health www.fda.gov/cdrh/organiz.html
Center for Drug Evaluation and Research www.fda.gov/cder/cderorg.htm
Center for Food Safety and Applied Nutrition vm.cfsan.fda.gov/ centsdms/orgchart.html
Center for Veterinary Medicine www.fda.gov/cvm/fda/mappgs/contactcvm.html
Office of Regulatory Affairs www.fda.gov/ora/inspect__ref/iom/IOMORADIR.html
----------------------------------------------------------------------------------------------------------------
(Comment 37) In Sec. 10.115(l)(2), we state that our centers and
offices will monitor the development and issuance of guidance documents
to ensure that GGP's are being followed. One comment suggested that we
consider using a center ombudsman (e.g., the new ombudsman in the
Center for Devices and Radiological Health) to perform this monitoring
function.
We agree that it is important to ensure that guidance documents are
developed and issued consistently by all centers and offices.
Therefore, each center and office will designate one or more persons to
monitor the development and issuance of its guidance documents. The
center or office can designate the ombudsman and/or other individuals
to perform this function.
As discussed previously, under Sec. 10.115(o) you may seek the
assistance of a center or office ombudsman or the Office of the Chief
Mediator and Ombudsman if you believe that someone at FDA is not
following the GGP's.
(Comment 38) One comment said that if we are serious about ensuring
that our employees do not develop policy through speeches and other
informal mechanisms, we should update and enforce internal written
procedures on this subject. Another comment suggested that we state
that our employees may not make statements at advisory committee
meetings as a means to communicate new regulatory expectations.
We stated in the proposed regulation at Sec. 10.115(e) that we may
not use documents and other means of communication that are excluded
from the definition of guidance document to informally communicate new
or different regulatory expectations to the public for the first time.
We are maintaining this language in the final rule. Part of our GGP
training for employees includes the understanding that policy is not to
be communicated initially to a broad audience through speeches.
Statements at advisory committee meetings often depend on the context
of the statement. If, for example, a marketing application under
consideration raises a novel issue, it may be appropriate for an FDA
employee to comment on that issue as it relates to a specific
application during a public advisory committee meeting. If there are
questions raised by an advisory committee member that are not about a
specific application, an individual employee can express a view, but
this would not reflect official agency policy.
(Comment 39) One comment suggested that we examine our processes
for training, evaluation, and related internal guidance to ensure that
our directives to staff reinforce the appropriate use of guidance
documents.
Section 701(h)(1)(B) of the act requires us to provide training for
employees on how to develop and use guidance documents. We train
employees about guidance documents in new employee orientation and/or
as part of continuing employee education and training programs.
Internal procedural documents are examined before they are issued to
ensure that they are consistent with our GGP policies.
(Comment 40) Several comments recommended that there be better
internal coordination among centers in the development, issuance, and
use of guidance documents. In particular, one comment suggested that
FDA ensure closer communication among centers, clarify the role of each
center in oversight, and communicate clearly the enforcing center's
expectation of a firm's responsibility for following a guidance
document.
One comment referred to the ``enforcing'' center. We note that
guidance is not enforceable. It is not binding on you or us.
In section 123 of the Modernization Act, Congress directed us to
minimize differences in the review and approval of products required to
have approved biologics license applications under section 351 of the
Public Health Service Act (42 U.S.C. 262) and products required to have
approved new drug applications under section 505(b)(1) of the act (21
U.S.C. 355(b)(1)). We have made a concerted effort to minimize those
differences and otherwise streamline the regulation of products that
may involve dual jurisdiction of our centers. As part of this effort,
we have issued numerous joint guidance documents.
We also have several checks within the guidance document
development process that help to ensure that there is communication
among centers on multicenter topics. For example, Level 1 guidance
documents that describe new legal interpretations or significant
changes in our policy are reviewed by the Office of the Chief Counsel
and the Office of Policy before issuance. These offices are aware of
cross-cutting issues and can ensure appropriate coordination.
(Comment 41) A comment suggested that we define the minimum levels
of approval authority for sign-off on guidance documents.
We understand that having the appropriate level of clearance on
guidance documents is important for purposes of quality control and to
achieve the greatest level of consistency across the agency. However,
we believe that we should maintain flexibility by providing discretion
to the various centers and offices to determine their appropriate
levels of clearance. Therefore, we decline the suggestion to mandate
minimum levels of approval authority for guidance documents.
(Comment 42) One comment suggested that we clarify the status of
advisory opinions and determine whether they are guidance documents.
We issue advisory opinions under Sec. 10.85. We anticipate
modifying Sec. 10.85 and explaining the effect of Sec. 10.115 on
previously issued advisory opinions in a separate rulemaking effort. As
such, the comment is outside the scope of this rulemaking.
(Comment 43) Two comments suggested that we clarify the status of
guidelines. One recommended that we designate them as Level 1 guidance.
Our ability to issue guidelines was described in Sec. 10.90(b). In
the conforming amendments to the proposed rule, we proposed to delete
all references to guidelines in Sec. 10.90(b) and replace the provision
with the statement that guidance documents will be developed, issued,
and used
[[Page 56475]]
according to the requirements at Sec. 10.115. On further consideration,
we have decided not to include a provision on guidance documents in
Sec. 10.90(b) because it is not necessary to state that guidance
documents will be regulated under Sec. 10.115. Therefore, we are
removing and reserving Sec. 10.90(b).
As described in the preamble to the proposed rule, all guidelines
are now treated as guidance documents (65 FR 7321 at 7326). Because we
no longer issue guidelines, we need not determine whether they would
warrant a Level 1 or Level 2 determination. If any documents previously
issued as guidelines are amended, we will follow the same procedures
used for amending guidance documents (i.e., we will determine whether
modifying the document meets the criteria for a Level 1 or Level 2
change).
(Comment 44) One comment asked whether we ensure that all broadly
disseminated letters are posted on the Internet and whether we have
procedures in place for quality control of this process.
We currently post all broadly disseminated letters on the Internet,
including ``Dear Doctor'' letters, and letters that are broadly
circulated but do not provide the agency's current thinking on a
regulatory issue. All broadly disseminated letters that fall under the
definition of guidance documents are issued under the procedures
described in this rule. Each center and office has personnel who
determine whether a broadly disseminated letter meets the criteria for
a guidance document and should be issued as such.
(Comment 45) One comment asked whether we post on the Internet
letters containing information about public health alerts.
In Sec. 10.115(b)(3), we clarify that guidance documents do not
include general information documents provided to consumers or health
professionals. Public health alerts fall within this category of
documents. While public health alerts are not guidance documents, and
the comment is beyond the scope of this rulemaking, we do post such
information on the Internet, as appropriate.
(Comment 46) One comment questioned whether we have a mechanism in
place for receiving and evaluating suggestions for novel or more
efficient procedures. The same comment suggested that we create a data
base that contains all correspondence issued to a company. The comment
also requested that we post on the Internet all of our speeches and the
preamble to the September 29, 1978, current good manufacturing
practices (CGMP's) regulation.
These comments are beyond the scope of this rulemaking.
B. Guidance Documents Resulting From International Negotiations
In addition to amending the final rule as described previously in
response to comments, we are making one revision that will improve our
ability to participate in international negotiations on guidance
documents. As described in Sec. 10.115(i)(1) and (i)(2), a guidance
document must: (1) Include the term ``guidance,'' (2) identify the
center(s) or office(s) issuing the document, (3) identify the activity
to which and the people to whom the document applies, (4) include a
statement of the document's nonbinding effect, (5) include the date of
issuance, (6) note if it is a revision to a previously issued guidance,
and (7) contain the word ``draft'' if the document is a draft guidance.
Furthermore, guidance documents must not include mandatory language
such as ``must'' or ``required'' unless we use those words to describe
a statutory or regulatory requirement.
In accordance with our mission, we actively participate in
international efforts to reduce the burden of regulation, harmonize
regulatory requirements, and achieve appropriate reciprocal
arrangements (section 903(b)(3) of the act 21 U.S.C. 393(b)(3)).
Through these efforts, we frequently negotiate guidance documents with
representatives of other countries. For example, our participation in
the International Conference on Harmonisation of Technical Requirements
for Registration of Pharmaceuticals for Human Use (ICH) has allowed us
to work with representatives of regulatory authorities from Europe,
Japan, and the United States and experts from the pharmaceutical
industry in the three regions to develop numerous guidance documents on
the regulation of human drug and biological products.
When draft documents are negotiated with representatives of other
countries, we seek public comment on the resulting documents. We
believe it is important to publish draft documents for comment at the
same time as other countries so we may review the public comments and
resume negotiations in a timely manner. However, other countries do not
follow our GGP's; therefore internationally negotiated draft documents
often do not comply with all of the provisions of Sec. 10.115(i)(1) and
(i)(2). For example, documents negotiated through ICH do not include
the Center for Drug Evaluation and Research or the Center for Biologics
Evaluation and Research as issuing offices. Differences in language and
use of certain terms often result in wording that implies the draft
documents establish mandatory requirements. Therefore, to facilitate
the development and issuance of draft documents resulting from
international negotiations, we have modified the final rule to state
that when issuing ``draft'' guidances that are the product of
international negotiations, we need not apply the provisions of
Sec. 10.115(i)(1) and (i)(2). However, we recognize and the final rule
provides that final guidances that are the product of international
negotiations must comply with all of the provisions of Sec. 10.115(i).
We anticipate that this amendment will provide many advantages,
including our ability to: (1) Provide more time for public comment on
draft guidance documents that are the result of international
negotiations, (2) receive more public comments on these draft
documents, (3) negotiate based on issues raised in public comments more
effectively, and (4) resume international negotiations in a timely
manner.
III. Conforming Amendments
We refer to guidelines issued under former Sec. 10.90(b) throughout
our regulations. Because we are revising our administrative regulations
by deleting guidelines and adding guidance documents issued under
Sec. 10.115, we are making conforming amendments to 21 CFR parts 7, 10,
14, 19, 25, 101, 107, 110, 114, 170, 310, 312, 314, 316, 500, 514, 601,
803, 814, and 860 to reflect our changes. We are also adding
Sec. 601.29, Guidance documents, to the biologics regulations, to be
consistent with Secs. 312.145, 314.445, and 814.20. These conforming
amendments will ensure the accuracy and consistency of the regulations.
IV. Environmental Impact
The agency has determined under 21 CFR 25.30 that this action is of
a type that does not individually or cumulatively have a significant
effect on the human environment. Therefore, neither an environmental
assessment nor an environmental impact statement is required statement
would be required.
V. Analysis of Impact
We have examined the impacts of the final rule under Executive
Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive
Order 12866 directs agencies to assess all costs and benefits of
available regulatory alternatives and,
[[Page 56476]]
when regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety, and other advantages; distributive impacts;
and equity). Under the Regulatory Flexibility Act, if a rule may have a
significant economic impact on a substantial number of small entities,
an agency must consider alternatives that would minimize the economic
impact of the rule on small entities. Section 202(a) of the Unfunded
Mandates Reform Act requires that agencies prepare a written assessment
of anticipated costs and benefits before proposing any rule that may
result in an expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million in any one
year (adjusted annually for inflation).
We believe that this final rule is consistent with the regulatory
philosophy and principles identified in Executive Order 12866 and in
these two statutes. This rule does not impose any mandates on State,
local, or tribal governments. The rule will not be significant as
defined by the Executive Order and will not require further analysis
under the Regulatory Flexibility Act. The Unfunded Mandates Reform Act
does not require us to prepare a statement of costs and benefits for
the rule because the rule in any 1-year expenditure would not exceed
$100 million adjusted for inflation. The current inflation-adjusted
statutory threshold is $110 million.
VI. Paperwork Reduction Act of 1995
This regulation would impose no additional reporting or
recordkeeping requirements. Therefore, clearance by the Office of
Management and Budget under the Paperwork Reduction Act of 1995 is not
required.
VII. Federalism
We have analyzed this final rule in accordance with the principles
set forth in Executive Order 13132. We have determined that the rule
does not contain policies that have substantial direct effects on the
States, on the relationship between National Government and the States,
or on the distribution of power and responsibilities among the various
levels of government. Accordingly, we have concluded that the rule does
not contain policies that have federalism implications as defined in
the order and, consequently, a federalism summary impact statement is
not required.
List of Subjects
21 CFR Part 7
Administrative practice and procedure, Consumer protection,
Reporting and recordkeeping requirements.
21 CFR Part 10
Administrative practice and procedure, News media.
21 CFR Part 14
Administrative practice and procedure, Advisory committees, Color
additives, Drugs, Radiation protection.
21 CFR Part 19
Conflict of interests.
21 CFR Part 25
Environmental impact statements, Foreign relations, Reporting and
recordkeeping requirements.
21 CFR Part 101
Food labeling, Nutrition, Reporting and recordkeeping requirements.
21 CFR Part 107
Food labeling, Infants and children, Nutrition, Reporting and
recordkeeping requirements, Signs and symbols.
21 CFR Part 110
Food packaging, Foods.
21 CFR Part 114
Food packaging, Foods, Reporting and recordkeeping requirements.
21 CFR Part 170
Administrative practice and procedure, Food additives, Reporting
and recordkeeping requirements.
21 CFR Part 310
Administrative practice and procedure, Drugs, Labeling, Medical
devices, Reporting and recordkeeping requirements.
21 CFR Part 312
Drugs, Exports, Imports, Investigations, Labeling, Medical
research, Reporting and recordkeeping requirements, Safety.
21 CFR Part 314
Administrative practice and procedure, Confidential business
information, Drugs, Reporting and recordkeeping requirements.
21 CFR Part 316
Administrative practice and procedure, Drugs, Reporting and
recordkeeping requirements.
21 CFR Part 500
Animal drugs, Animal feeds, Cancer, Labeling, Packaging and
containers, Polychlorinated biphenyls (PCB's).
21 CFR Part 514
Administrative practice and procedure, Animal drugs, Confidential
business information, Reporting and recordkeeping requirements.
21 CFR Part 601
Administrative practice and procedure, Biologics, Confidential
business information.
21 CFR Part 803
Imports, Medical devices, Reporting and recordkeeping requirements.
21 CFR Part 814
Administrative practice and procedure, Confidential business
information, Medical devices, Medical research, Reporting and
recordkeeping requirements.
21 CFR Part 860
Administrative practice and procedures, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act, the
Public Health Service Act, and under authority delegated to the
Commissioner of Food and Drugs, 21 CFR parts 7, 10, 14, 19, 25, 101,
107, 110, 114, 170, 310, 312, 314, 316, 500, 514, 601, 803, 814, and
860 are amended as follows:
PART 7--ENFORCEMENT POLICY
1. The authority citation for 21 CFR part 7 continues to read as
follows:
Authority: 21 U.S.C. 321-393; 42 U.S.C. 241, 262, 263b-263n,
264.
Sec. 7.1 [Amended]
2. In Sec. 7.1, remove the word ``guidelines'' and add in its place
the word ``guidance''.
Subpart C [Amended]
3. In the heading for subpart C, consisting of Secs. 7.40 through
7.59, remove the word ``guidelines'' and add in its place the word
``guidance''.
Sec. 7.40 [Amended]
4. In 7.40(a), remove the word ``guidelines'' and add in its place
the word ``guidance''.
PART 10--ADMINISTRATIVE PRACTICES AND PROCEDURES
5. The authority citation for 21 CFR part 10 continues to read as
follows:
Authority: 5 U.S.C. 551-558, 701-706; 15 U.S.C. 1451-1461; 21
U.S.C. 141-149, 321-
[[Page 56477]]
397, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 U.S.C. 201, 262, 263b,
264.
Sec. 10.20 [Amended]
6. In Sec. 10.20(j)(1)(v), remove the phrase ``guidelines filed
under Sec. 10.90(b)'' and add in its place the words ``guidance
documents developed under Sec. 10.115''.
Sec. 10.45 [Amended]
7. In Sec. 10.45(d), remove the words ``on a guideline issued under
Sec. 10.90,''.
Sec. 10.85 [Amended]
8. In Sec. 10.85, remove paragraph (d)(5).
Sec. 10.90 [Amended]
9. In Sec. 10.90, remove ``guidelines,'' from the section heading
and remove and reserve paragraph (b).
10. Add Sec. 10.115 to subpart B to read as follows:
Sec. 10.115 Good guidance practices.
(a) What are good guidance practices? Good guidance practices
(GGP's) are FDA's policies and procedures for developing, issuing, and
using guidance documents.
(b) What is a guidance document?
(1) Guidance documents are documents prepared for FDA staff,
applicants/sponsors, and the public that describe the agency's
interpretation of or policy on a regulatory issue.
(2) Guidance documents include, but are not limited to, documents
that relate to: The design, production, labeling, promotion,
manufacturing, and testing of regulated products; the processing,
content, and evaluation or approval of submissions; and inspection and
enforcement policies.
(3) Guidance documents do not include: Documents relating to
internal FDA procedures, agency reports, general information documents
provided to consumers or health professionals, speeches, journal
articles and editorials, media interviews, press materials, warning
letters, memoranda of understanding, or other communications directed
to individual persons or firms.
(c) What other terms have a special meaning?
(1) ``Level 1 guidance documents'' include guidance documents that:
(i) Set forth initial interpretations of statutory or regulatory
requirements;
(ii) Set forth changes in interpretation or policy that are of more
than a minor nature;
(iii) Include complex scientific issues; or
(iv) Cover highly controversial issues.
(2) ``Level 2 guidance documents'' are guidance documents that set
forth existing practices or minor changes in interpretation or policy.
Level 2 guidance documents include all guidance documents that are not
classified as Level 1.
(3) ``You'' refers to all affected parties outside of FDA.
(d) Are you or FDA required to follow a guidance document?
(1) No. Guidance documents do not establish legally enforceable
rights or responsibilities. They do not legally bind the public or FDA.
(2) You may choose to use an approach other than the one set forth
in a guidance document. However, your alternative approach must comply
with the relevant statutes and regulations. FDA is willing to discuss
an alternative approach with you to ensure that it complies with the
relevant statutes and regulations.
(3) Although guidance documents do not legally bind FDA, they
represent the agency's current thinking. Therefore, FDA employees may
depart from guidance documents only with appropriate justification and
supervisory concurrence.
(e) Can FDA use means other than a guidance document to communicate
new agency policy or a new regulatory approach to a broad public
audience? The agency may not use documents or other means of
communication that are excluded from the definition of guidance
document to informally communicate new or different regulatory
expectations to a broad public audience for the first time. These GGP's
must be followed whenever regulatory expectations that are not readily
apparent from the statute or regulations are first communicated to a
broad public audience.
(f) How can you participate in the development and issuance of
guidance documents?
(1) You can provide input on guidance documents that FDA is
developing under the procedures described in paragraph (g) of this
section.
(2) You can suggest areas for guidance document development. Your
suggestions should address why a guidance document is necessary.
(3) You can submit drafts of proposed guidance documents for FDA to
consider. When you do so, you should mark the document ``Guidance
Document Submission'' and submit it to Dockets Management Branch (HFA-
305), 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
(4) You can, at any time, suggest that FDA revise or withdraw an
already existing guidance document. Your suggestion should address why
the guidance document should be revised or withdrawn and, if
applicable, how it should be revised.
(5) Once a year, FDA will publish, both in the Federal Register and
on the Internet, a list of possible topics for future guidance document
development or revision during the next year. You can comment on this
list (e.g., by suggesting alternatives or making recommendations on the
topics that FDA is considering).
(6) To participate in the development and issuance of guidance
documents through one of the mechanisms described in paragraphs (f)(1),
(f)(2), or (f)(4) of this section, you should contact the center or
office that is responsible for the regulatory activity covered by the
guidance document.
(7) If FDA agrees to draft or revise a guidance document, under a
suggestion made under paragraphs (f)(1), (f)(2), (f)(3) or (f)(4) of
this section, you can participate in the development of that guidance
document under the procedures described in paragraph (g) of this
section.
(g) What are FDA's procedures for developing and issuing guidance
documents?
(1) FDA's procedures for the development and issuance of Level 1
guidance documents are as follows:
(i) Before FDA prepares a draft of a Level 1 guidance document, FDA
can seek or accept early input from individuals or groups outside the
agency. For example, FDA can do this by participating in or holding
public meetings and workshops.
(ii) After FDA prepares a draft of a Level 1 guidance document, FDA
will:
(A) Publish a notice in the Federal Register announcing that the
draft guidance document is available;
(B) Post the draft guidance document on the Internet and make it
available in hard copy; and
(C) Invite your comment on the draft guidance document. Paragraph
(h) of this section tells you how to submit your comments.
(iii) After FDA prepares a draft of a Level 1 guidance document,
FDA also can:
(A) Hold public meetings or workshops; or
(B) Present the draft guidance document to an advisory committee
for review.
(iv) After providing an opportunity for public comment on a Level 1
guidance document, FDA will:
(A) Review any comments received and prepare the final version of
the guidance document that incorporates suggested changes, when
appropriate;
[[Page 56478]]
(B) Publish a notice in the Federal Register announcing that the
guidance document is available;
(C) Post the guidance document on the Internet and make it
available in hard copy; and
(D) Implement the guidance document.
(v) After providing an opportunity for comment, FDA may decide that
it should issue another draft of the guidance document. In this case,
FDA will follow the steps in paragraphs (g)(1)(ii), (g)(1)(iii), and
(g)(1)(iv) of this section.
(2) FDA will not seek your comment before it implements a Level 1
guidance document if the agency determines that prior public
participation is not feasible or appropriate.
(3) FDA will use the following procedures for developing and
issuing Level 1 guidance documents under the circumstances described in
paragraph (g)(2) of this section:
(i) After FDA prepares a guidance document, FDA will:
(A) Publish a notice in the Federal Register announcing that the
guidance document is available;
(B) Post the guidance document on the Internet and make it
available in hard copy;
(C) Immediately implement the guidance document; and
(D) Invite your comment when it issues or publishes the guidance
document. Paragraph (h) of this section tells you how to submit your
comments.
(ii) If FDA receives comments on the guidance document, FDA will
review those comments and revise the guidance document when
appropriate.
(4) FDA will use the following procedures for developing and
issuing Level 2 guidance documents:
(i) After it prepares a guidance document, FDA will:
(A) Post the guidance document on the Internet and make it
available in hard copy;
(B) Immediately implement the guidance document, unless FDA
indicates otherwise when the document is made available; and
(C) Invite your comment on the Level 2 guidance document. Paragraph
(h) of this section tells you how to submit your comments.
(ii) If FDA receives comments on the guidance document, FDA will
review those comments and revise the document when appropriate. If a
version is revised, the new version will be placed on the Internet.
(5) You can comment on any guidance document at any time. Paragraph
(h) of this section tells you how to submit your comments. FDA will
revise guidance documents in response to your comments when
appropriate.
(h) How should you submit comments on a guidance document?
(1) If you choose to submit comments on any guidance document under
paragraph (g) of this section, you must send them to the Dockets
Management Branch (HFA-305), 5630 Fishers Lane, rm. 1061, Rockville, MD
20852.
(2) Comments should identify the docket number on the guidance
document, if such a docket number exists. For documents without a
docket number, the title of the guidance document should be included.
(3) Comments will be available to the public in accordance with
FDA's regulations on submission of documents to the Dockets Management
Branch specified in Sec. 10.20(j).
(i) What standard elements must FDA include in a guidance document?
(1) A guidance document must:
(i) Include the term ``guidance,''
(ii) Identify the center(s) or office(s) issuing the document,
(iii) Identify the activity to which and the people to whom the
document applies,
(iv) Prominently display a statement of the document's nonbinding
effect,
(v) Include the date of issuance,
(vi) Note if it is a revision to a previously issued guidance and
identify the document that it replaces, and
(vii) Contain the word ``draft'' if the document is a draft
guidance.
(2) Guidance documents must not include mandatory language such as
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless FDA is
using these words to describe a statutory or regulatory requirement.
(3) When issuing draft guidance documents that are the product of
international negotiations (e.g., guidances resulting from the
International Conference on Harmonisation), FDA need not apply
paragraphs (i)(1) and (i)(2) of this section. However, any final
guidance document issued according to this provision must contain the
elements in paragraphs (i)(1) and (i)(2) of this section.
(j) Who, within FDA, can approve issuance of guidance documents?
Each center and office must have written procedures for the approval of
guidance documents. Those procedures must ensure that issuance of all
documents is approved by appropriate senior FDA officials.
(k) How will FDA review and revise existing guidance documents?
(1) The agency will periodically review existing guidance documents
to determine whether they need to be changed or withdrawn.
(2) When significant changes are made to the statute or
regulations, the agency will review and, if appropriate, revise
guidance documents relating to that changed statute or regulation.
(3) As discussed in paragraph (f)(3) of this section, you may at
any time suggest that FDA revise a guidance document.
(l) How will FDA ensure that FDA staff are following GGP's?
(1) All current and new FDA employees involved in the development,
issuance, or application of guidance documents will be trained
regarding the agency's GGP's.
(2) FDA centers and offices will monitor the development and
issuance of guidance documents to ensure that GGP's are being followed.
(m) How can you get copies of FDA's guidance documents? FDA will
make copies available in hard copy and, as feasible, through the
Internet.
(n) How will FDA keep you informed of the guidance documents that
are available?
(1) FDA will maintain on the Internet a current list of all
guidance documents. New documents will be added to this list within 30
days of issuance.
(2) Once a year, FDA will publish in the Federal Register its
comprehensive list of guidance documents. The comprehensive list will
identify documents that have been added to the list or withdrawn from
the list since the previous comprehensive list.
(3) FDA's guidance document lists will include the name of the
guidance document, issuance and revision dates, and information on how
to obtain copies of the document.
(o) What can you do if you believe that someone at FDA is not
following these GGP's? If you believe that someone at FDA did not
follow the procedures in this section or that someone at FDA treated a
guidance document as a binding requirement, you should contact that
person's supervisor in the center or office that issued the guidance
document. If the issue cannot be resolved, you should contact the next
highest supervisor. You can also contact the center or office ombudsman
for assistance in resolving the issue. If you are unable to resolve the
issue at the center or office level or if you feel that you are not
making progress by going through the chain of command, you may ask the
Office of the Chief Mediator and Ombudsman to become involved.
PART 14--PUBLIC HEARING BEFORE A PUBLIC ADVISORY COMMITTEE
11. The authority citation for 21 CFR part 14 continues to read as
follows:
[[Page 56479]]
Authority: 5 U.S.C. App. 2; 15 U.S.C. 1451-1461; 21 U.S.C. 141-
149, 321-394, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 U.S.C. 201,
262, 263b, 264.
Sec. 14.27 [Amended]
12. In Sec. 14.27(b)(3), remove the word ``guidelines'' and add in
its place the words ``guidance documents''.
Sec. 14.33 [Amended]
13. In Sec. 14.33(c), remove the word ``guidelines'' and add in its
place the words ``guidance documents''.
PART 19--STANDARDS OF CONDUCT AND CONFLICTS OF INTEREST
14. The authority citation for 21 CFR part 19 continues to read as
follows:
Authority: 21 U.S.C. 371.
Sec. 19.10 [Amended]
15. In Sec. 19.10(c), remove the word ``guidelines'' and add in its
place the words ``guidance documents''.
PART 25--ENVIRONMENTAL IMPACT CONSIDERATIONS
16. The authority citation for 21 CFR part 25 continues to read as
follows:
Authority: 21 U.S.C. 321-393; 42 U.S.C. 262, 263b-264; 42 U.S.C.
4321, 4332; 40 CFR parts 1500-1508; E.O. 11514, 35 FR 4247, 3 CFR,
1971 Comp., p. 531-533 as amended by E.O. 11991, 42 FR 26967, 3 CFR,
1978 Comp., p. 123-124 and E.O. 12114, 44 FR 1957, 3 CFR, 1980
Comp., p. 356-360.
Sec. 25.30 [Amended]
17. In Sec. 25.30(h), remove the word ``guidelines'' and add in its
place the words ``guidance documents''.
PART 101--FOOD LABELING
18. The authority citation for 21 CFR part 101 continues to read as
follows:
Authority: 15 U.S.C. 1453, 1454, 1455; 21 U.S.C. 321, 331, 342,
343, 348, 371.
Sec. 101.9 [Amended]
19. In Sec. 101.9(b)(7)(vi), remove the word ``guideline'' wherever
it appears and add in its place the words ``guidance document''.
PART 107--INFANT FORMULA
20. The authority citation for 21 CFR part 107 continues to read as
follows:
Authority: 21 U.S.C. 321, 343, 350a, 371.
Sec. 107.270 [Amended]
21. In Sec. 107.270, remove the word ``guidelines'' and add in its
place the word ``guidance''.
PART 110--CURRENT GOOD MANUFACTURING PRACTICE IN MANUFACTURING,
PACKING, OR HOLDING HUMAN FOOD
22. The authority citation for 21 CFR part 110 continues to read as
follows:
Authority: 21 U.S.C. 342, 371, 374; 42 U.S.C. 264.
Sec. 110.80 [Amended]
23. In Sec. 110.80, remove the word ``guidelines,'' in paragraphs
(a)(3) and (a)(4).
PART 114--ACIDIFIED FOODS
24. The authority citation for 21 CFR part 114 continues to read as
follows:
Authority: 21 U.S.C. 342, 371, 374; 42 U.S.C. 264.
Sec. 114.100 [Amended]
25. In Sec. 114.100(a), remove the word ``guidelines'' and add in
its place the words ``guidance documents''.
PART 170--FOOD ADDITIVES
26. The authority citation for 21 CFR part 170 continues to read as
follows:
Authority: 21 U.S.C. 321, 341, 342, 346a, 348, 371.
Sec. 170.39 [Amended]
27. In Sec. 170.39(h), remove the word ``guidelines'' wherever it
appears and add in its place the words ``guidance documents''.
PART 310--NEW DRUGS
28. The authority citation for 21 CFR part 310 continues to read as
follows:
Authority: 21 U.S.C. 321, 331, 351, 352, 353, 355, 360b-360f,
360j, 361(a), 371, 374, 375, 379(e); 42 U.S.C. 216, 241, 242(a),
262, 263b-263n.
Sec. 310.500 [Amended]
29. In Sec. 310.500(e), remove the words ``guidelines'' and
``guideline'', respectively, and add in their place the words
``guidance'' and ``guidance on'', respectively.
PART 312--INVESTIGATIONAL NEW DRUG APPLICATION
30. The authority citation for 21 CFR part 312 continues to read as
follows:
Authority: 21 U.S.C. 321, 331, 351, 352, 353, 355, 371; 42
U.S.C. 262.
Sec. 312.23 [Amended]
31. In Sec. 312.23(a)(8), remove the word ``guidelines'' and add in
its place the words ``guidance documents.''
32. Revise Sec. 312.145 to read as follows:
Sec. 312.145 Guidance documents.
(a) FDA has made available guidance documents under Sec. 10.115 of
this chapter to help you to comply with certain requirements of this
part.
(b) The Center for Drug Evaluation and Research (CDER) and the
Center for Biologics Evaluation and Research (CBER) maintain lists of
guidance documents that apply to the centers' regulations. The lists
are maintained on the Internet and are published annually in the
Federal Register. A request for a copy of the CDER list should be
directed to the Office of Training and Communications, Division of
Communications Management, Drug Information Branch (HFD-210), Center
for Drug Evaluation and Research, Food and Drug Administration, 5600
Fishers Lane, Rockville, MD 20857. A request for a copy of the CBER
list should be directed to the Office of Communication, Training, and
Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and
Research, Food and Drug Administration, 1401 Rockville Pike, Rockville,
MD 20852-1448.
PART 314--APPLICATIONS FOR FDA APPROVAL TO MARKET A NEW DRUG
33. The authority citation for 21 CFR part 314 continues to read as
follows:
Authority: 21 U.S.C. 321, 331, 351, 352, 353, 355, 371, 374,
379e.
Sec. 314.50 [Amended]
34. In Sec. 314.50, in the introductory text remove the word
``guidelines'' and add in its place the words ``guidance documents''.
Sec. 314.70 [Amended]
35. In Sec. 314.70(a), remove the words ``guideline, notice,'' and
add in their place the word ``notice''.
Sec. 314.94 [Amended]
36. In Sec. 314.94, in the introductory text remove the words
``guidelines'' and add in its place the words ``guidance documents''.
Sec. 314.105 [Amended]
37. In Sec. 314.105(c), remove the word ``guidelines'' and add in
its place the words ``guidance documents''.
Sec. 314.420 [Amended]
38. In Sec. 314.420(c), remove the words ``under Sec. 10.90(b) a
guideline'' and add in their place the word ``guidance''.
39. Revise Sec. 314.445 to read as follows:
[[Page 56480]]
Sec. 314.445 Guidance documents.
(a) FDA has made available guidance documents under Sec. 10.115 of
this chapter to help you to comply with certain requirements of this
part.
(b) The Center for Drug Evaluation and Research (CDER) maintains a
list of guidance documents that apply to CDER's regulations. The list
is maintained on the Internet and is published annually in the Federal
Register. A request for a copy of the CDER list should be directed to
the Office of Training and Communications, Division of Communications
Management, Drug Information Branch (HFD-210), Center for Drug
Evaluation and Research, Food and Drug Administration, 5600 Fishers
Lane, Rockville, MD 20857.
PART 316--ORPHAN DRUGS
40. The authority citation for 21 CFR part 316 continues to read as
follows:
Authority: 21 U.S.C. 360aa, 360bb, 360cc, 360dd, 371.
41. Revise Sec. 316.50 to read as follows:
Sec. 316.50 Guidance documents.
FDA's Office of Orphan Products Development will maintain and make
publicly available a list of guidance documents that apply to the
regulations in this part. The list is maintained on the Internet and is
published annually in the Federal Register. A request for a copy of the
list should be directed to the Office of Orphan Products Development
(HF-35), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD
20857.
PART 500--GENERAL
42. The authority citation for 21 CFR part 500 continues to read as
follows:
Authority: 21 U.S.C. 321, 331, 342, 343, 348, 351, 352, 353,
360b, 371.
Sec. 500.80 [Amended]
43. In Sec. 500.80(a), remove the word ``guidelines'' wherever it
appears and add in its place the words ``guidance documents''.
PART 514--NEW ANIMAL DRUG APPLICATIONS
44. The authority citation for 21 CFR part 514 continues to read as
follows:
Authority: 21 U.S.C. 351, 352, 360b, 371, 379e, 381.
Sec. 514.1 [Amended]
45. In Sec. 514.1(d)(2), remove the word ``guidelines'' wherever it
appears and add in its place the words ``guidance documents''.
PART 601--LICENSING
46. The authority citation for 21 CFR part 601 continues to read as
follows:
Authority: 15 U.S.C. 1451-1561; 21 U.S.C. 321, 351, 352, 353,
355, 360, 360c-360f, 360h-360j, 371, 374, 379e, 381; 42 U.S.C. 216,
241, 262, 263; sec. 122, Pub. L. 105-115, 111 Stat. 2322 (21 U.S.C.
355 note).
47. Add Sec. 601.29 to subpart C to read as follows:
Sec. 601.29 Guidance documents.
(a) FDA has made available guidance documents under Sec. 10.115 of
this chapter to help you comply with certain requirements of this part.
(b) The Center for Biologics Evaluation and Research (CBER)
maintains a list of guidance documents that apply to the center's
regulations. The lists are maintained on the Internet and are published
annually in the Federal Register. You may request a copy of the CBER
list from the Office of Communication, Training, and Manufacturers
Assistance (HFM-40), Center for Biologics Evaluation and Research, Food
and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852-1448.
PART 803--MEDICAL DEVICE REPORTING
48. The authority citation for 21 CFR part 803 continues to read as
follows:
Authority: 21 U.S.C. 352, 360, 360i, 360j, 371, 374.
Sec. 803.14 [Amended]
49. In Sec. 803.14(b), remove the word ``guidelines'' and add in
its place the words ``guidance documents''.
PART 814--PREMARKET APPROVAL OF MEDICAL DEVICES
50. The authority citation for 21 CFR part 814 continues to read as
follows:
Authority: 21 U.S.C. 351, 352, 353, 360, 360c-360j, 371, 372,
373, 374, 375, 379, 379e, 381.
51. In Sec. 814.20, revise paragraph (g) to read as follows:
Sec. 814.20 Application.
* * * * *
(g) FDA has issued a PMA guidance document to assist the applicant
in the arrangement and content of a PMA. This guidance document is
available on the Internet at http://www.fda.gov/cdrh/dsma/pmaman/front.html. This guidance document is also available upon request from
the Center for Devices and Radiological Health, Division of Small
Manufacturers Assistance (HFZ-220), 1350 Piccard Dr., Rockville, MD
20850, FAX 301-443-8818.
* * * * *
PART 860--MEDICAL DEVICE CLASSIFICATION PROCEDURES
52. The authority citation for 21 CFR part 860 continues to read as
follows:
Authority: 21 U.S.C. 360c, 360d, 360e, 360i, 360j, 371, 374.
Sec. 860.3 [Amended]
53. In Sec. 860.3(c)(2), remove the words ``guidelines'' and
``guidelines for'' and add in their place the words ``guidance
documents'' and ``guidance on'', respectively.
Dated: September 1, 2000.
Margaret M. Dotzel,
Associate Commissioner for Policy.
[FR Doc. 00-23887 Filed 9-18-00; 8:45 am]
BILLING CODE 4160-01-F