[Federal Register Volume 67, Number 73 (Tuesday, April 16, 2002)]
[Notices]
[Pages 18626-18630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9239]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. 02N-0109]


Agency Information Collection Activities; Proposed Collection; 
Comment Request; Dissemination of Information on Unapproved/New Uses 
for Marketed Drugs, Biologics, and Devices

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is announcing an 
opportunity for public comment on the proposed collection of certain 
information by the agency. Under the Paperwork Reduction Act of 1995 
(the PRA), Federal agencies are required to publish notice in the 
Federal Register concerning each proposed collection of information, 
including each proposed extension of an existing collection of 
information, and to allow 60 days for public comment in response to the 
notice. This notice solicits comments on the reporting and 
recordkeeping requirements associated with the dissemination of 
information on unapproved or new uses for marketed drugs, biologics, 
and devices.

DATES: Submit written or electronic comments on the collection of 
information by June 17, 2002.

ADDRESSES: Submit electronic comments on the collection of information 
to http://www.accessdata.fda.gov/scripts/oc/dockets/edockethome.cfm. 
Submit written comments on the collection of information to the Dockets 
Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers 
Ln., rm. 1061, Rockville, MD 20852. All comments should be identified 
with the docket number found in brackets in the heading of this 
document.

FOR FURTHER INFORMATION CONTACT: Karen L. Nelson, Office of Information 
Resources Management (HFA-250), Food and Drug Administration, 5600 
Fishers Lane, Rockville, MD 20857, 301-827-1482.

SUPPLEMENTARY INFORMATION: Under the PRA (44 U.S.C. 3501-3520) Federal 
agencies must obtain approval from the Office of Management and Budget 
(OMB) for each collection of information they conduct or sponsor. 
``Collection of information'' is defined in 44 U.S.C. 3502(3) and 5 CFR 
1320.3(c) and includes agency requests or requirements that members of 
the

[[Page 18627]]

public submit reports, keep records, or provide information to a third 
party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) 
requires Federal agencies to provide a 60-day notice in the Federal 
Register concerning each collection of information, including each 
extension of an existing collection of information, before submitting 
the collection to OMB for approval. To comply with this requirement, 
FDA is publishing notice of the collection of information set forth in 
this document.
    With respect to the following collection of information, FDA 
invites comments on: (1) Whether the collection of information is 
necessary for the proper performance of FDA's functions, including 
whether the information will have practical utility; (2) the accuracy 
of FDA's estimate of the burden of the collection of information, 
including the validity of the methodology and assumptions used; (3) 
ways to enhance the quality, utility, and clarity of the information to 
be collected; and (4) ways to minimize the burden of the collection of 
information on respondents, including through the use of automated 
collection techniques, when appropriate, and other forms of information 
technology.

Dissemination of Information on Unapproved/New Uses for Marketed 
Drugs, Biologics, and Devices (OMB Control No. 0910-0390)--
Extension.

    In the Federal Register of November 20, 1998 (63 FR 64555), FDA 
published a final rule to add a new part 99 (21 CFR part 99) entitled 
``Dissemination of Information on Unapproved/New Uses for Marketed 
Drugs, Biologics, and Devices.''
    The final rule implemented section 401 of the Food and Drug 
Administration Modernization Act (FDAMA) (Public Law 105-115). In 
brief, section 401 of FDAMA amended the act to permit drug, biologic, 
and device manufacturers to disseminate certain written information 
concerning the safety, effectiveness, or benefits of a use that is not 
described in the product's approved labeling to health care 
practitioners, pharmacy benefit managers, health insurance issuers, 
group health plans, and Federal and State Government agencies, provided 
that the manufacturer complies with certain statutory requirements. For 
example, the information that is to be disseminated must be about a 
drug or device that is being legally marketed; it must be in the form 
of an unabridged reprint or copy of a peer-reviewed journal article or 
reference publication; and it must not be derived from another 
manufacturer's clinical research, unless that other manufacturer has 
given its permission for the dissemination. The information must be 
accompanied by certain information, including a prominently displayed 
statement that the information discusses a use or uses that have not 
been approved or cleared by FDA. Additionally, 60 days before 
dissemination, the manufacturer must submit to FDA a copy of the 
information to be disseminated and any other clinical trial information 
that the manufacturer has relating to the safety or effectiveness of 
the new use, any reports of clinical experience that pertain to the 
safety of the new use, and a summary of such information.
    The rule sets forth the criteria and procedures for making such 
submissions to FDA. Under the rule, a submission would include a 
certification that the manufacturer has completed clinical studies 
necessary to submit a supplemental application to FDA for the new use 
and will submit the supplemental application within 6 months of its 
initial dissemination of information. If the manufacturer has planned, 
but not completed, such studies, the submission would include proposed 
protocols and a schedule for conducting the studies, as well as a 
certification that the manufacturer will complete the clinical studies 
and submit a supplemental application no later than 36 months of its 
initial dissemination of information. The rule also permits 
manufacturers to request extensions of the time period for completing a 
study and submitting a supplemental application, and to request an 
exemption from the requirement to submit a supplemental application. 
The rule prescribes the timeframe within which the manufacturer shall 
maintain records that would enable it to take corrective action. The 
rule requires the manufacturer to submit lists pertaining to the 
disseminated articles and reference publications and the categories of 
persons (or individuals) receiving the information, and to submit a 
notice and summary of any additional research or data (and a copy of 
the data) relating to the product's safety or effectiveness for the new 
use. The rule requires the manufacturer to maintain a copy of the 
information, lists, records, and reports for 3 years after it has 
ceased dissemination of the information and to make the documents 
available to FDA for inspection and copying.
    FDA based its estimates of the number of submissions it would 
receive and the number of manufacturers who would take advantage of to 
part 99 on the number of efficacy and new use supplements for approved 
drugs, biologics, and devices received in fiscal year (FY) 1997 and on 
a projected increase in supplements due to FDAMA. In FY 1997, FDA 
received 198 efficacy and new use supplements from 115 manufacturers. 
The number of supplements increased 100 percent from FY 1995 to FY 1997 
as a result of two new initiatives, the Prescription Drug User Fee Act 
and a new pediatric labeling regulation. If FDAMA results in an 
additional 50 percent increase in the number of supplements and a 
corresponding increase in the number of manufacturers, then the 
estimated number of submissions under part 99 is 297 (198 + (0.5 x 
198)), and the estimated number of manufacturers is 172 (115 + (0.5 x 
115)). These figures are reflected in tables 1 and 2 of this document 
for Secs. 99.201(a)(1), (a)(2), (a)(3), (b), and (c) and 99.501(a)(1), 
(a)(2), (b)(1), (b)(3), and (c).
    The estimated burden hours for these provisions are as follows:
    Section 99.201(a)(1) requires the manufacturer to provide an 
identical copy of the information to be disseminated, including any 
required information. Because the manufacturer must compile this 
information in order to prepare its submission to FDA, the agency 
estimates that 40 hours would be required per submission. Because 297 
annual responses are expected under Sec. 99.201(a)(1), the total burden 
for this provision is 11,880 hours (297 responses x 40 hours per 
response).
    Section 99.201(a)(2) requires the manufacturer to submit clinical 
trial information pertaining to the safety and effectiveness of the new 
use, clinical experience reports on the safety of the new use, and a 
summary of the information. FDA estimates 24 burden hours per response 
for this provision for assembling, reviewing, and submitting the 
information and assumes that the manufacturer will have already 
acquired some of this information in order to decide whether to 
disseminate information on an unapproved use under part 99. The total 
burden for this provision is 7,128 hours (297 annual responses x 24 
hours per response).
    Section 99.201(a)(3) requires the manufacturer to explain its 
search strategy when assembling its bibliography, and so FDA estimates 
that only 1 hour would be required for the explanation because the 
manufacturer would have developed and used its search strategy before 
preparing the bibliography. Because 297 annual responses are expected 
under Sec. 99.201(a)(3), the total burden for this provision is 297 
hours (297 annual responses x 1 hour per response).
    Section 99.201(b) simply requires the manufacturer's attorney, 
agent, or other

[[Page 18628]]

authorized official to sign its submissions, and certifications, or 
requests for an exemption. FDA, therefore, estimates that only 30 
minutes are necessary for such signatures. Because 297 annual responses 
are expected under Sec. 99.201(b), the total burden for this provision 
is 148.5 hours (297 response x 0.5 hours per response = 148.5 hours).
    Section 99.201(c) requires the manufacturer to provide two copies 
with its original submission. Copying the submission should not be time 
consuming, so FDA estimates the burden to be 30 minutes. Because 297 
annual responses are expected under Sec. 99.201(c), the total burden 
for this provision is 148.5 hours.
    While the act requires manufacturers to provide a submission to FDA 
before they disseminate information on unapproved/new uses, it also 
permits manufacturers to: (1) Have completed studies and promise to 
submit a supplemental application for the new use within 6 months of 
the date of initial dissemination; (2) provide protocols and a schedule 
for completing studies and submitting a supplemental application for 
the new use within 36 months of the date of initial dissemination; (3) 
have completed studies and have submitted a supplemental application 
for the new use; or (4) request an exemption from the requirement to 
submit a supplemental application. These possible scenarios are 
addressed in Secs. 99.201(a)(4)(i)(A), (a)(4)(ii)(A), and (a)(5) and 
99.205(b), respectively.
    To determine the number of responses in Secs. 99.201(a)(4)(i)(A), 
(a)(4)(ii)(A), and (a)(5) and 99.205(b), FDA began by estimating the 
number of requests for an exemption under Sec. 99.205(b). The 
legislative history indicates that such exemptions are to be limited. 
In the final rule, FDA estimated that approximately 10 percent of all 
respondents would seek--or 10 percent of all submissions would 
contain--an ``economically prohibitive'' exemption (resulting in 17 
total respondents and approximately 30 annual responses) and that the 
estimated reporting burden per response would be 82 hours. This results 
in a total hour burden of 2,460 hours for Sec. 99.205(b) (30 
submissions x 82 hours per submission).
    The estimated increase in the number of exemption requests results 
in a corresponding decrease in the remaining number of respondents and 
submissions under Sec. 99.201(a)(4)(i)(A), (a)(4)(ii)(A), and (a)(5). 
FDA assumes that the remaining 267 submissions (297 total submissions - 
30 submissions containing an exemption request) will be divided equally 
among Sec. 99.201(a)(4)(i)(A), (a)(4)(ii)(A), and (a)(5), resulting in 
89 responses in each provision (267 submissions/3 provisions). FDA has 
estimated the number of respondents in a similar fashion ((172 total 
respondents - 17 respondents submitting an exemption request)/3 
provisions = 51.6, rounded up to 52 respondents per provision).
    As stated earlier, Sec. 99.201(a)(4)(i)(A)) requires the 
manufacturer, if the manufacturer has completed studies needed for the 
submission of a supplemental application for the new use, to submit the 
protocol(s) for the completed studies, or, if the protocol was 
submitted to an investigational new drug application (IND) or 
investigational device exemption (IDE), to submit the IND or IDE 
number(s), the date of submission of the protocol(s), the protocol 
number(s), and the date of any amendments to the protocol(s). FDA 
estimates that 30 hours would be required for this response because 
this is information that each manufacturer already maintains for its 
drugs or devices. The total burden for this provision is 2,670 hours 
(89 annual responses x 30 hours per response).
    For manufacturers who submit protocols and a schedule for 
conducting studies, Sec. 99.201(a)(4)(ii)(A) requires the manufacturer 
to include, in its schedule, the projected dates on which the 
manufacturer expects the principal study events to occur. FDA estimates 
a manufacturer would need approximately 60 hours to include the 
projected dates because it would have to contact the studies' principal 
investigator(s) and other company officials. The total burden for this 
provision is 5,340 hours (89 annual responses x 60 hours per response).
    If the manufacturer has submitted a supplemental application for 
the new use, Sec. 99.201(a)(5) requires a cross-reference to that 
supplemental application. FDA estimates that only 1 hour would be 
needed because manufacturers already maintain this information. The 
total burden for this provision is 89 hours (89 annual responses x 1 
hour per response).
    Under Sec. 99.203, a manufacturer who has certified that it will 
complete studies necessary to submit a supplemental application within 
36 months after its submission to FDA, but later finds that it will be 
unable to complete such studies or submit a supplemental application 
within that time period, may request an extension of time from FDA. 
Such requests for extension should be limited, occurring less than 1 
percent of the time, because manufacturers and FDA, when developing or 
reviewing study protocols, should be able to identify when a study will 
require more than 36 months to complete. Section 99.203 contemplates 
extension requests under two different scenarios. Under Sec. 99.203(a), 
a manufacturer may make an extension request before it makes a 
submission to FDA regarding the dissemination of information under part 
99. The agency expects such requests to be limited, occurring less than 
1 percent of the time (or 1 annual response), and that such requests 
will result in a reporting burden of 10 hours per request. The total 
burden hours for this provision, therefore, is 10 hours (1 annual 
response x 10 hours per response).
    Section 99.203(b) specifies the contents of a request to extend the 
time for completing planned studies after the manufacturer has provided 
its submission to FDA. The required information includes a description 
of the studies, the current status of the studies, reasons why the 
study cannot be completed on time, and an estimate of the additional 
time needed. FDA estimates that 10 hours for reporting the required 
information under Sec. 99.203(b) because it would require consultation 
between the manufacturer and key individuals (such as the study's 
principal investigator(s)). As in the case of Sec. 99.203(a), the 
expected number of responses is very small (1 annual response), and the 
total burden hours for this provision is 10 hours (1 annual response x 
10 hours per response).
    Section 99.203(c) requires two copies of an extension request (in 
addition to the request required under section 554(c)(3) of the Federal 
Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360aaa-3)), and FDA 
estimates that these copies would result in a minimal reporting burden 
of 30 minutes. However, this requirement would apply to extension 
requests under Sec. 99.203(a) and (b), so the total number of annual 
responses is 2, resulting in a total burden hour for this provision of 
1 hour (2 annual responses x 0.5 hours per response).
    The remaining reporting and recordkeeping burdens are as follows:
    Section 99.501(a)(1) requires the manufacturer to maintain records 
that identify recipients by category or individually. Under 
Sec. 99.301(a)(3), FDA will notify the manufacturer whether it needs to 
maintain records identifying individual recipients due to special 
safety considerations associated with the new use. This means that, in 
most cases, the manufacturer will only have to maintain records 
identifying recipients by category. In either event,

[[Page 18629]]

the manufacturer will know whether it must maintain records that 
identify individual recipients before it begins disseminating 
information. The time required to identify recipients individually 
should be minimal, and the time required to identify recipients by 
category should be even less. Therefore, FDA estimates the burden for 
this provision to be 10 hours, and, because 297 annual responses are 
expected under Sec. 99.501(a)(1), the total burden for this provision 
is 2,970 hours (297 annual responses x 10 hours per response).
    Section 99.501(a)(2) requires the manufacturer to maintain a copy 
of the information it disseminates. This task is not expected to be 
time consuming, so FDA estimates the burden to be 1 hour. Because 297 
annual responses are expected under Sec. 99.501(a)(2), the total burden 
for this provision is 297 hours (297 annual responses x 1 hour per 
response).
    Section 99.501(b)(1) requires the manufacturer to submit to FDA 
semiannually a list containing the articles and reference publications 
that were disseminated in the preceding 6-month period. FDA tentatively 
estimates a burden of 8 hours for this provision. The actual burden may 
be less if the manufacturer develops and updates the list while it 
disseminates articles and reference publications during the 6-month 
period (as opposed to generating a completely new list at the end of 
each 6-month period) and if the volume of disseminated materials is 
small. The total burden for this provision is 4,752 hours (297 
responses submitted semiannually x 8 hours per response = 297 x 2 x 8 = 
4,752 hours).
    Section 553(a)(2) of the act (21 U.S.C. 360aaa-2(a)(2)) requires 
manufacturers that disseminate information to submit to FDA 
semiannually a list that identifies the categories of providers who 
received the articles and reference publications. Section 99.501(b)(2) 
also requires the list to identify which category of recipients 
received each particular article or reference publication. If each of 
the 297 submissions under part 99 results in disseminated information, 
Sec. 99.501(b)(2) would result in 594 lists (297 submissions x 2 
submissions per year) identifying which category of recipients received 
each particular article or reference publication. The agency estimates 
the burden to be only 1 hour per response because this type of 
information is maintained as a usual and customary business practice, 
and the total burden for this provision is 594 hours (594 lists x 1 
hour per list).
    In relation to Sec. 99.201(a)(2), Sec. 99.501(b)(3) requires the 
manufacturer to provide, on a semiannual basis, a notice and summary of 
any additional clinical research or other data relating to the safety 
and effectiveness of the new use and, if it possesses such research or 
data, to provide a copy to FDA. This burden should not be as extensive 
as that in Sec. 99.201(a)(2), so FDA estimates the burden to be 20 
hours per response, for a total burden of 11,880 hours for this 
provision (297 annual responses submitted semiannually x 20 hours per 
response = 297 x 2 x 20 = 11,880 hours).
    If a manufacturer discontinues or terminates a study before 
completing it, Sec. 99.501(b)(4)) requires the manufacturer to state 
the reasons for discontinuing or terminating the study in its next 
progress report. Based on FDA's regulatory experience in monitoring 
studies to support supplemental applications, FDA estimates this would 
affect only 1 percent of all applications (297 x 0.01 = 2.97, rounded 
up to 3) and only two manufacturers (172 x 0.01 = 1.72, rounded up to 
2). FDA estimates 2 hours of reporting time for this requirement 
because the manufacturer should know the reasons for discontinuing or 
terminating the study and would only need to provide those reasons in 
its progress report. The total burden hours for this provision is 6 
hours (3 annual responses x 2 hours per response).
    Section 99.501(b)(5) requires the manufacturer to submit any new or 
additional information that relates to whether the manufacturer 
continues to meet the requirements for the exemption after an exemption 
has been granted. FDA cannot determine, at this time, how many 
exemption requests will be granted, but, for purposes of this 
information collection, has estimated that 10 percent of all 
submissions will contain an exemption request (297 total submissions x 
0.10 = 29.7, rounded up to 30) and has assumed that all exemption 
requests will be granted, for a total of 30 annual responses. The 
information sought under Sec. 99.501(b)(5) pertains solely to new or 
additional information and is not expected to be as extensive as the 
information required to obtain an exemption. Thus, FDA tentatively 
estimates the burden for Sec. 99.501(b)(5) to be 41 hours per response 
(or half the burden associated with an exemption request), for a total 
burden of 1,230 hours for this provision (30 annual responses x 41 
hours per response).
    Section 99.501(c) requires the manufacturer to maintain records for 
3 years after it has ceased dissemination of the information. FDA 
estimates the burden hour for this provision to be 1 hour. Because 297 
annual responses are expected under Sec. 99.501(c), the total burden 
for this provision is 297 hours.
    Description of Respondents: All manufacturers (persons and 
businesses, including small businesses) of drugs, biologics, and device 
products.
    FDA estimates the burden of this collection of information as 
follows:

                                 Table 1.--Estimated Annual Reporting Burden\1\
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                                         Annual frequency      Total Annual        Hours per
 21 CFR section    No. of respondents      per response          responses          response       Total hours
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99.201(a)(1)              172                    1.7               297                 40           11,880
99.201(a)(2)              172                    1.7               297                 24            7,128
99.201(a)(3)              172                    1.7               297                  1              297
99.201(a)(4)(i)(           52                    1.7                89                 30            2,670
 A)
99.201(a)(4)(ii)           52                    1.7                89                 60            5,340
 (A)
99.201(a)(5)               52                    1.7                89                  1               89
99.201(b)                 172                    1.7               297                  0.5            148.5
99.201(c)                 172                    1.7               297                  0.5            148.5
99.203(a)                   1                    1                   1                 10               10
99.203(b)                   1                    1                   1                 10               10
99.203(c)                   2                    1                   2                  0.5              1
99.205(b)                  17                    1.8                30                 82            2,460
99.501(b)(1)              172                    3.4               594                  8            4,752
99.501(b)(2)              172                    3.4               594                  1              594
99.501(b)(3)              172                    3.4               594                 20           11,880

[[Page 18630]]

 
99.501(b)(4)                2                    1.7                 3                  2                6
99.501(b)(5)               17                    1.8                30                 41            1,230
Total                                                                                               48,644.0
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\1\ There are no capital costs or operating and maintenance costs associated with this collection of
  information.


                               Table 2.--Estimated Annual Recordkeeping Burden\1\
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                                         Annual frequency      Total annual        Hours per
 21 CFR section   No. of recordkeepers   per recordkeeping        records         recordkeeper     Total hours
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99.501(a)(1)              172                    1.7               297                 10            2,970
99.501(a)(2)              172                    1.7               297                  1              297
99.501(c)                 172                    1.7               297                  1              297
Total                                                                                                3,564
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\1\ There are no capital costs or operating and maintenance costs associated with this collection of
  information.

    The estimated burden associated with the information collection 
requirements for this rule is 52,208 hours.

    Dated: April 5, 2002.
Margaret M. Dotzel,
Associate Commissioner for Policy.
[FR Doc. 02-9239 Filed 4-15-02; 8:45 am]
BILLING CODE 4160-01-S