[Federal Register Volume 78, Number 122 (Tuesday, June 25, 2013)]
[Notices]
[Pages 38044-38052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15096]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2013-N-0651]


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

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is announcing the 
issuance of an Emergency Use Authorization (EUA) (the Authorization) 
for an in vitro diagnostic device for detection of the novel avian 
influenza A(H7N9) virus. FDA is issuing this Authorization under the 
Federal Food, Drug, and Cosmetic (FD&C) Act, as requested by the 
Centers for Disease Control and Prevention (CDC). The Authorization 
contains, among other things, conditions on the emergency use of the 
authorized in vitro diagnostic device. The Authorization follows the 
determination by the Secretary of Health and Human Services (HHS) that 
there is a significant potential for a public health emergency that has 
a significant potential to affect national security or the health and 
security of U.S. citizens living abroad that involves the novel avian 
influenza A(H7N9) virus. On the basis of such determination, the 
Secretary also declared that circumstances exist justifying the 
authorization of emergency use of in vitro diagnostics for detection of 
the novel avian influenza A(H7N9) virus subject to the terms of any 
authorization issued under the FD&C Act. The Authorization, which 
includes an explanation of the reasons for issuance, is reprinted in 
this document.

DATES: The Authorization is effective as of April 22, 2013.

ADDRESSES: Submit written requests for single copies of the EUA to the 
Office of Counterterrorism and Emerging Threats, Food and Drug 
Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 4121, Silver 
Spring, MD 20993-

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0002. Send one self-addressed adhesive label to assist that office in 
processing your request or include a fax number to which the 
Authorization may be sent. See the SUPPLEMENTARY INFORMATION section 
for electronic access to the Authorization.

FOR FURTHER INFORMATION CONTACT: Luciana Borio, Assistant Commissioner 
for Counterterrorism Policy, Office of Counterterrorism and Emerging 
Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 
32, Rm. 4118, Silver Spring, MD 20993-0002, 301-796-8510 (this is not a 
toll free number).

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 564 of the FD&C Act (21 U.S.C. 360bbb-3), as amended by the 
Project BioShield Act of 2004 (Pub. L. 108-276) and the Pandemic and 
All-Hazards Preparedness Reauthorization Act of 2013 (Pub. L. 113-5), 
allows FDA to strengthen the public health protections against 
biological, chemical, nuclear, and radiological agents. Among other 
things, section 564 of the FD&C Act allows FDA to authorize the use of 
an unapproved medical product or an unapproved use of an approved 
medical product in certain situations. With this EUA authority, FDA can 
help assure that medical countermeasures may be used in emergencies to 
diagnose, treat, or prevent serious or life-threatening diseases or 
conditions caused by biological, chemical, nuclear, or radiological 
agents when there are no adequate, approved, and available 
alternatives.
    Section 564(b)(1) of the FD&C Act provides that, before an EUA may 
be issued, the Secretary of HHS must declare that circumstances exist 
justifying the authorization based on one of the following grounds: (1) 
A determination by the Secretary of Homeland Security that there is a 
domestic emergency, or a significant potential for a domestic 
emergency, involving a heightened risk of attack with a biological, 
chemical, radiological, or nuclear agent or agents; (2) a determination 
by the Secretary of Defense that there is a military emergency, or a 
significant potential for a military emergency, involving a heightened 
risk to U.S. military forces of attack with a biological, chemical, 
radiological, or nuclear agent or agents; (3) a determination by the 
Secretary of HHS that there is a public health emergency, or a 
significant potential for a public health emergency, that affects, or 
has a significant potential to affect, national security or the health 
and security of U.S. citizens living abroad, and that involves a 
biological, chemical, radiological, or nuclear agent or agents, or a 
disease or condition that may be attributable to such agent or agents; 
\1\ or (4) the identification of a material threat by the Secretary of 
Homeland Security pursuant to section 319F-2 of the Public Health 
Service (PHS) Act (42 U.S.C. 247d-6b) sufficient to affect national 
security or the health and security of U.S. citizens living abroad.
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    \1\ As amended by the Pandemic and All-Hazards Preparedness 
Reauthorization Act of 2013 (Pub. L. 113-5), the Secretary of HHS 
may make a determination of a public health emergency, or a 
significant potential for a public health emergency, under section 
564 of the FD&C Act. The Secretary is no longer required to make a 
determination of a public health emergency under section 319 of the 
PHS Act, 42 U.S.C. 247d, to support a determination made under 
section 564 of the FD&C Act.
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    Once the Secretary has declared that circumstances exist justifying 
an authorization under section 564 of the FD&C Act, FDA may authorize 
the emergency use of a drug, device, or biological product if the 
Agency concludes that the statutory criteria are satisfied. Under 
section 564(h)(1) of the FD&C Act, FDA is required to publish, in the 
Federal Register, a notice of each authorization, and each termination 
or revocation of an authorization, and an explanation of the reasons 
for the action. Section 564 of the FD&C Act permits FDA to authorize 
the introduction into interstate commerce of a drug, device, or 
biological product intended for use when the Secretary of HHS has 
declared that circumstances exist justifying the authorization of 
emergency use. Products appropriate for emergency use may include 
products and uses that are not approved, cleared, or licensed under 
sections 505, 510(k), or 515 of the FD&C Act (21 U.S.C. 355, 360(k), 
and 360e) or section 351 of the PHS Act (42 U.S.C. 262). FDA may issue 
an EUA only if, after consultation with the HHS Assistant Secretary for 
Preparedness and Response, the Director of the National Institutes of 
Health, and the Director of CDC (to the extent feasible and appropriate 
given the applicable circumstances), FDA \2\ concludes: (1) That an 
agent referred to in a declaration of emergency or threat can cause a 
serious or life-threatening disease or condition; (2) that, based on 
the totality of scientific evidence available to FDA, including data 
from adequate and well-controlled clinical trials, if available, it is 
reasonable to believe that: (A) The product may be effective in 
diagnosing, treating, or preventing--(i) such disease or condition; or 
(ii) a serious or life-threatening disease or condition caused by a 
product authorized under section 564, approved or cleared under the 
FD&C Act, or licensed under section 351 of the PHS Act, for diagnosing, 
treating, or preventing such a disease or condition caused by such an 
agent; and (B) the known and potential benefits of the product, when 
used to diagnose, prevent, or treat such disease or condition, outweigh 
the known and potential risks of the product, taking into consideration 
the material threat posed by the agent or agents identified in a 
declaration under section 564(b)(1)(D) of the FD&C Act, if applicable; 
(3) that there is no adequate, approved, and available alternative to 
the product for diagnosing, preventing, or treating such disease or 
condition; and (4) that such other criteria as the Secretary of HHS may 
by regulation prescribe are satisfied.
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    \2\ The Secretary of HHS has delegated the authority to issue an 
EUA under section 564 of the FD&C Act to the Commissioner of Food 
and Drugs.
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    No other criteria of issuance have been prescribed by regulation 
under section 564(c)(4) of the FD&C Act. Because the statute is self-
executing, regulations or guidance are not required for FDA to 
implement the EUA authority.

II. EUA Request for an In Vitro Diagnostic for Detection of the Novel 
Avian Influenza A(H7N9) Virus

    On April 19, 2013, under section 564(b)(1)(C) of the FD&C Act (21 
U.S.C. 360bbb-3(b)(1)(C)), the Secretary of HHS determined that there 
is a significant potential for a public health emergency that has a 
significant potential to affect national security or the health and 
security of U.S. citizens living abroad that involves the novel avian 
influenza A(H7N9) virus. Also on April 19, 2013, under section 
564(b)(1) of the FD&C Act, and on the basis of such determination, the 
Secretary of HHS declared that circumstances exist justifying the 
authorization of emergency use of in vitro diagnostics for detection of 
the novel avian influenza A(H7N9) virus, subject to the terms of any 
authorization issued under section 564 of the FD&C Act. The Secretary 
also specified that this declaration is a declaration of an emergency 
with respect to in vitro diagnostics as defined under the Public 
Readiness and Emergency Preparedness (PREP) Act Declaration for 
Pandemic Influenza Diagnostics, Personal Respiratory Protection 
Devices, and Respiratory Support Devices signed by then Secretary 
Michael Leavitt on December 17, 2008 (73 FR 78362). Notice of the 
determination and the declaration of the Secretary were published in 
the Federal

[[Page 38046]]

Register on April 30, 2013 (78 FR 25273). On April 19, 2013, CDC 
requested, and on April 22, 2013, FDA issued an EUA for the CDC Human 
Influenza Virus Real-Time RT-PCR Diagnostic Panel-Influenza A/H7 
(Eurasian Lineage) Assay subject to the terms of this authorization.

III. Electronic Access

    An electronic version of this document and the full text of the 
Authorization are available on the Internet at http://www.regulations.gov.

IV. The Authorization

    Having concluded that the criteria for issuance of the 
Authorization under section 564(c) of the FD&C Act are met, FDA has 
authorized the emergency use of an in vitro diagnostic device for 
detection of the novel avian influenza A(H7N9) virus subject to the 
terms of the Authorization. The Authorization in its entirety (not 
including the authorized versions of the fact sheets and other written 
materials) follows and provides an explanation of the reasons for its 
issuance, as required by section 564(h)(1) of the FD&C Act:
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    Dated: June 19, 2013.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2013-15096 Filed 6-24-13; 8:45 am]
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