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A320–111 airplanes; Model A320–211, –212,
–214, –231, 232, and –233 airplanes; and
Model A321–111, –112, and –131 airplanes;
except those on which Airbus Modification
26495 has been accomplished in production:
Within 18 months after January 8, 2001 (the
effective date of AD 2000–24–02, amendment
39–12009), modify the sliding panel driving
mechanism of the flap drive trunnions, in
accordance with Airbus Service Bulletin
A320–27–1117, Revision 02, dated January
18, 2000.
Note 1: Accomplishment of the
modification required by paragraph (f) of this
AD before January 8, 2001, in accordance
with Airbus Service Bulletin A320–27–1117,
dated July 31, 1997; or Revision 01, dated
June 25, 1999, is acceptable for compliance
with that paragraph.

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Detailed Inspections
(g) For Model A318–111 and –112
airplanes; Model A319–111, –112, –113,
–114, –115, –131, –132, and –133 airplanes;
Model A320–211, –212, –214, –231, –232,
and –233 airplanes; and Model A321–111,
–112, and –131 airplanes; on which Airbus
Modification 26495 has been incorporated in
production: At the latest of the times
specified in paragraphs (g)(1), (g)(2), and
(g)(3) of this AD, do a detailed inspection of
the inboard flap trunnions for any wear
marks and of the sliding panels for any
cracking at the long edges, and do any
corrective actions, as applicable, by
accomplishing all of the applicable actions
specified in the Accomplishment
Instructions of Airbus Service Bulletin A320–
57–1133, dated July 28, 2005; except as
provided by paragraph (m) of this AD. Any
corrective actions must be done at the
compliance times specified in Figures 5 and
6, as applicable, of the service bulletin;
except as provided by paragraphs (j), (k), and
(l) of this AD. Repeat the inspection
thereafter at intervals not to exceed 4,000
flight hours until the inspection required by
paragraph (i) of this AD is done.
Note 2: For the purposes of this AD, a
detailed inspection is: ‘‘An intensive
examination of a specific item, installation,
or assembly to detect damage, failure, or
irregularity. Available lighting is normally
supplemented with a direct source of good
lighting at an intensity deemed appropriate.
Inspection aids such as mirror, magnifying
lenses, etc., may be necessary. Surface
cleaning and elaborate procedures may be
required.’’
(1) Before accumulating 4,000 total flight
hours on the inboard flap trunnion since
new.
(2) Within 4,000 flight hours after
accomplishing paragraph (f) of this AD.
(3) Within 600 flight hours after March 24,
2006 (the effective date of AD 2006–04–06).
New Requirements of This AD
Modification
(h) For Model A321–211 and –231
airplanes, except those on which Airbus
Modification 26495 has been accomplished
in production: Within 18 months after the
effective date of this AD, modify the sliding
panel driving mechanism of the flap drive

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trunnions, in accordance with Airbus Service
Bulletin A320–27–1117, Revision 02, dated
January 18, 2000.
Note 3: Accomplishment of the
modification required by paragraph (h) of
this AD before the effective date of this AD,
in accordance with Airbus Service Bulletin
A320–27–1117, dated July 31, 1997; or
Revision 01, dated June 25, 1999, is
acceptable for compliance with that
paragraph.
General Visual Inspections
(i) For all airplanes: At the time specified
in paragraph (i)(1) or (i)(2) of this AD, as
applicable, do a general visual inspection of
the inboard flap trunnions for any wear
marks and of the sliding panels for any
cracking at the long edges, and do all
applicable corrective actions, by
accomplishing all of the applicable actions
specified in the Accomplishment
Instructions of Airbus Service Bulletin A320–
57–1133, dated July 28, 2005; except as
provided by paragraph (m) of this AD. All
corrective actions must be done at the
compliance times specified in Figures 5 and
6, as applicable, of the service bulletin;
except as provided by paragraphs (j), (k), and
(l) of this AD. Repeat the inspection
thereafter at intervals not to exceed 4,000
flight hours. Accomplishment of the general
visual inspection required by this paragraph
terminates the detailed inspection
requirement of paragraph (g) of this AD.
Note 4: For the purposes of this AD, a
general visual inspection is: ‘‘A visual
examination of an interior or exterior area,
installation, or assembly to detect obvious
damage, failure, or irregularity. This level of
inspection is made from within touching
distance unless otherwise specified. A mirror
may be necessary to ensure visual access to
all surfaces in the inspection area. This level
of inspection is made under normally
available lighting conditions such as
daylight, hangar lighting, flashlight, or
droplight and may require removal or
opening of access panels or doors. Stands,
ladders, or platforms may be required to gain
proximity to the area being checked.’’
(1) For airplanes on which the detailed
inspection required by paragraph (g) of this
AD has been done before the effective date
of this AD: Inspect before accumulating 4,000
total flight hours on the inboard flap
trunnion since new, or within 4,000 flight
hours after accomplishing the most recent
inspection required by paragraph (g) of this
AD, whichever occurs later.
(2) For airplanes other than those
identified in paragraph (i)(1) of this AD:
Inspect at the latest of the times specified in
paragraphs (i)(2)(i), (i)(2)(ii), and (i)(2)(iii) of
this AD.
(i) Before accumulating 4,000 total flight
hours on the inboard flap trunnion since
new.
(ii) Within 4,000 flight hours after
accomplishing paragraph (f) of this AD.
(iii) Within 600 flight hours after the
effective date of this AD.
Compliance Times
(j) Where Airbus Service Bulletin A320–
57–1133, dated July 28, 2005, specifies

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replacing the sliding panel at the next
opportunity if damaged, replace it within 600
flight hours after the inspection required by
paragraph (g) or (i) of this AD, as applicable.
(k) If any damage to the trunnion is found
during any inspection required by paragraph
(g) or (i) of this AD, do the corrective actions
specified in the service bulletin before
further flight.
Grace Period Assessment
(l) Where the service bulletin specifies
contacting the manufacturer for a grace
period assessment after replacing the
trunnion or flap, contact the Manager,
International Branch, ANM–116, Transport
Airplane Directorate, FAA; or the European
Aviation Safety Agency (EASA) (or its
delegated agent) for the grace period
assessment.
No Reporting Requirement
(m) Although Airbus Service Bulletin
A320–57–1133, dated July 28, 2005, specifies
to submit certain information to the
manufacturer, this AD does not include that
requirement.
Alternative Methods of Compliance
(AMOCs)
(n)(1) The Manager, International Branch,
ANM–116, has the authority to approve
AMOCs for this AD, if requested in
accordance with the procedures found in 14
CFR 39.19.
(2) Before using any AMOC approved in
accordance with 14 CFR 39.19 on any
airplane to which the AMOC applies, notify
the appropriate principal inspector in the
FAA Flight Standards Certificate Holding
District Office.
Related Information
(o) French airworthiness directive F–2005–
139, dated August 3, 2005, also addresses the
subject of this AD.
Issued in Renton, Washington, on August
14, 2006.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. E6–13826 Filed 8–21–06; 8:45 am]
BILLING CODE 4910–13–P

DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 20, 25, 201, 202, 207, 225,
226, 500, 510, 511, 515, 516, 558, and
589
[Docket No. 2006N–0067]
RIN 0910–AF67

Index of Legally Marketed Unapproved
New Animal Drugs for Minor Species
AGENCY:

Food and Drug Administration,

HHS.
ACTION:

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Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules
SUMMARY: The Minor Use and Minor
Species Animal Health Act of 2004
(MUMS act) amended the Federal Food,
Drug, and Cosmetic Act (the act) to
authorize the U.S. Food and Drug
Administration (FDA, the agency) to
establish new regulatory procedures that
provide incentives intended to make
more drugs legally available to
veterinarians and animal owners for the
treatment of minor animal species and
uncommon diseases in major animal
species. At this time, FDA is issuing
proposed regulations to implement
section 572 of the act entitled ‘‘Index of
Legally Marketed Unapproved New
Animal Drugs for Minor Species.’’ These
regulations propose administrative
procedures and criteria for index listing
a new animal drug for use in a minor
species. Such indexing provides a basis
for legally marketing an unapproved
new animal drug intended for use in a
minor species.
DATES: Submit written or electronic
comments on this document by
November 20, 2006. Interested persons
are requested to submit comments on
the information collection provisions by
September 21, 2006.
ADDRESSES: You may submit comments,
identified by [Docket No. 2006N–0067
and/RIN number 0910–AF67], by any of
the following methods:
Electronic Submissions
Submit electronic comments in the
following ways:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• Agency Web site: http://
www.fda.gov/dockets/ecomments.
Follow the instructions for submitting
comments on the agency Web site.
Written Submissions
Submit written submissions in the
following ways:
• FAX: 301–827–6870.
• Mail/Hand delivery/Courier [For
paper, disk, or CD–ROM submissions]:
Division of Dockets Management (HFA–
305), Food and Drug Administration,
5630 Fishers Lane, rm. 1061, Rockville,
MD 20852.
To ensure more timely processing of
comments, FDA is no longer accepting
comments submitted to the agency by email. FDA encourages you to continue
to submit electronic comments by using
the Federal eRulemaking Portal or the
agency Web site, as described in the
Electronic Submissions portion of this
paragraph.
Instructions: All submissions received
must include the agency name and
Docket No(s). and Regulatory
Information Number (RIN) for this
rulemaking. All comments received may

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be posted without change to http://
www.fda.gov/ohrms/dockets/
default.htm, including any personal
information provided. For detailed
instructions on submitting comments
and additional information on the
rulemaking process, see the
‘‘Comments’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: For access to the docket to
read background documents or
comments received, go to http://
www.fda.gov/ohrms/dockets/
default.htm and insert the docket
number(s), found in brackets in the
heading of this document, into the
‘‘Search’’ box and follow the prompts
and/or go to the Division of Dockets
Management, 5630 Fishers Lane, rm.
1061, Rockville, MD 20852.
To ensure that comments on the
information collection are received,
OMB recommends that written
comments be faxed to the Office of
Information and Regulatory Affairs,
OMB, Attn: FDA Desk Officer, FAX:
202–395–6974.
FOR FURTHER INFORMATION CONTACT:
Andrew Beaulieu, Center for Veterinary
Medicine (HFV–50), Food and Drug
Administration, 7519 Standish Pl.,
Rockville, MD 20855, 240–276–9090, email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
In enacting the MUMS act (Pub. L.
108–282), Congress sought to encourage
the development of animal drugs that
are currently unavailable to minor
species (species other than cattle,
horses, swine, chickens, turkeys, dogs,
and cats) in the United States or to
major species afflicted with uncommon
diseases or conditions (minor use).
Congress recognized that the markets for
drugs intended to treat these species,
diseases, or conditions, are so small that
there are often insufficient economic
incentives to motivate sponsors to
develop data to support approvals.
Further, Congress recognized that some
minor species populations are too small
or their management systems too
diverse to make it practical to conduct
traditional studies to demonstrate safety
and effectiveness of animal drugs for
such uses. As a result of these
limitations, sponsors have generally not
been willing or able to collect data to
support legal marketing of drugs for
these species, diseases, or conditions.
Consequently, Congress enacted the
MUMS act, which amended the Federal
Food, Drug, and Cosmetic Act to
provide incentives to develop new
animal drugs for minor species and

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48841

minor use, while still ensuring
appropriate safeguards for animal and
human health.
The major incentives of the MUMS
act include the following:
(1) Designation, established by section
573 of the act (21 U.S.C. 360ccc–2),
which provides for eligibility for grants
and contracts to defray the costs of
qualified safety and effectiveness testing
expenses and manufacturing expenses
incurred in the development of
designated new animal drugs.
Designation also provides for eligibility
for a 7-year period of exclusive
marketing rights to enable sponsors to
recover costs of drug development
without competition. FDA proposed
regulations to implement the
designation provision of the act on
September 27, 2005 (70 FR 56394) (the
designation proposed rule).
(2) Conditional approval, established
by section 571 of the act (21 U.S.C.
360ccc), which provides for animal drug
marketing after all safety and
manufacturing components of a new
animal drug approval have met the
standards of section 512 of the act (21
U.S.C. 360b). For the effectiveness
component, a reasonable expectation of
effectiveness must be established, after
which sponsors have up to 5 years to
complete the demonstration of
effectiveness by the standards of section
512 of the act and achieve a full
approval. Regulations to implement the
conditional approval provision will be
proposed in the future.
(3) Indexing, established under
section 572 of the act (21 U.S.C. 360ccc–
1), which provides for the legal
marketing of unapproved new animal
drugs intended for use in a minor
species through an integrated process of
agency and expert panel review.
At this time, FDA is issuing proposed
regulations to implement the indexing
provisions of the MUMS act. These
regulations propose procedures and
criteria for index listing a new animal
drug for use in a minor species. They
describe a process whereby the agency
makes a determination regarding the
following: (1) The eligibility of a new
animal drug, (2) the selection of a
qualified expert panel, and (3) the
findings of the qualified expert panel.
II. Proposed Regulations
A. Definitions (proposed § 516.115).
Most of the proposed definitions are
straightforward. The proposed
definition of ‘‘qualified expert panel’’ is
drawn from the statutory definition,
given in section 572(d)(3) of the act. The
proposed definition of ‘‘transgenic
animal’’ comes from the statutory

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Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules

definition, given in section 571(j) of the
act (21 U.S.C. 360ccc). The proposed
definition of ‘‘intended use’’ is identical
to one proposed with respect to the
designation proposed rule of September
27, 2005 (70 FR 56394). The designation
proposed rule also included definitions
for the phrases ‘‘same intended use,’’
‘‘same drug,’’ and ‘‘same dosage form’’
that would be applicable to all subparts
of part 516, including the indexing
regulations.
B. Permanent-resident U.S. agent for a
foreign requestor (proposed § 516.119).
The proposed rule would require a
foreign requestor or holder to name a
permanent-resident U.S. agent so that
the agency may ensure that notifications
of decisions regarding indexing and all
other communications with the
requestor or holder are legally and
effectively made.

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C. Meetings (proposed § 516.121)
The act provides that any person
intending to file a request for eligibility
or a request for addition to the index
may have an opportunity to meet with
the agency to discuss the requirements
for indexing a new animal drug.
D. Informal conferences regarding
agency administrative actions (proposed
§ 516.123)
The act also provides that a requestor
or holder be offered an informal
conference in association with an
agency decision to deny a request for a
determination of eligibility to index, to
deny a request for index listing or to
remove an index listing. Proposed
§ 516.123 establishes the nature of and
the procedures for requesting and
conducting such conferences. FDA
would give notice of the grounds for the
initial decision and provide an
opportunity to respond to that decision.
As proposed, the conference’s presiding
officer would not have significantly
participated in the initial decision,
would prepare a written summary of the
informal conference to share with the
participants, and would issue a written
report describing the basis for his or her
findings. The proposed regulation also
provides for an informal conference
associated with a decision to terminate
an investigational exemption for a new
animal drug proposed for indexing or a
decision not to affirm an expert panel
because it does not meet the selection
criteria of § 516.141. In the case of
conferences associated with adverse
agency decisions, the proposed
regulation establishes that decisions to
deny, remove, terminate, or not affirm
will be made by the Director, Office of
Minor Use and Minor Species Animal

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Drug Development (OMUMS) and a
subsequent conference, if requested,
will be conducted by the Director,
Center for Veterinary Medicine or his
designee, other than the Director,
OMUMS. These procedures were
adapted from the process for holding
regulatory hearings before the agency
under 21 CFR part 16.
E. Investigational use of new animal
drugs to support indexing (proposed
§ 516.125).
As required by section 512(a)(1) of the
act, a new animal drug may not be
legally marketed unless it is the subject
of an approved New Animal Drug
Application (NADA), the subject of a
conditionally approved NADA, or on
FDA’s list of legally marketed
unapproved new animal drugs. The act
contains two exemptions for drugs
intended solely for investigational use
by experts qualified by scientific
training and experience to investigate
the safety and effectiveness of drugs.
The first, in section 512(j) of the act,
applies to new animal drugs generally,
including animal feeds bearing or
containing new animal drugs. FDA’s
regulations implementing this
investigational use exemption are at part
511 (21 CFR part 511). The second, in
section 572(g) of the act, is parallel to
the first exemption but is for the
purposes of indexing and applies only
to minor species new animal drugs,
including animal feeds bearing or
containing such new animal drugs. Note
that the coverage of these exemptions
overlaps and, therefore, in some
circumstances an investigational use
might qualify for an exemption under
either section 512(j) of the act or section
572(g) of the act.
Proposed § 516.125 would implement
section 572(g) of the act. It states that
certain investigational uses, although
they involve a minor species new
animal drug, are nonetheless subject to
part 511. Such uses include
investigations to demonstrate safety
with respect to individuals exposed to
the new animal drug through its
manufacture and use under section
572(c)(1)(F) of the act, to conduct an
environmental assessment under section
572(c)(1)(E) of the act, or to obtain
approval of a new animal drug
application or abbreviated new animal
drug application under section 512(b) of
the act. These investigational uses
would be required to be conducted
under part 511 because, whether these
types of studies are conducted to
support indexing or approval, the
agency would evaluate the study results
using the same standards. Thus, the
agency believes it should apply the

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same substantive and procedural
requirements for these investigational
uses for minor species new animal
drugs as it does for new animal drugs
generally.
For other types of investigational
uses, proposed § 516.125 establishes
separate exemption regulations,
although they are very similar to part
511. The agency believes the regulations
should be similar because of the
similarity of the purpose and the
language of the two investigational use
exemptions in the act. Proposed
§ 516.125 states that, with certain
modifications, part 511 applies to minor
species new animal drugs or animal
feeds bearing or containing such new
animal drugs intended for
investigational use for all other
purposes in support of a drug index
listing (such as to demonstrate target
animal safety and effectiveness). Among
the proposed modifications is the need
to specifically identify that the
investigational use is in support of
index listing, which would be done
when labeling the drugs involved and
when notifying the agency of the
claimed investigational exemption.
Another modification is that FDA would
provide notice and an opportunity for
an informal conference before
terminating an investigational use
exemption. While part 511 provides for
notice and an opportunity for a hearing
under 21 CFR part 16 concerning
whether the exemption should be
terminated, the administrative process
in the proposed regulations reflects the
fact that section 572 of the act provides
for an informal conference with respect
to other agency decisions regarding
indexing, such as removal of a new
animal drug from the index. FDA does
not believe it should have an
administrative process for terminating
an investigational use exemption
relating to indexing that is different
from the informal conference process for
other decisions relating to indexing.
F. Content and format of a request for
determination of eligibility for indexing
(proposed § 516.129).
To be added to the index, a new
animal drug must meet certain criteria.
The act establishes what can be
described as a two-part regulatory
decision-making process for
determining whether these criteria have
been met. The first part in this
regulatory process is FDA’s
determination of whether the new
animal drug is eligible for indexing.
This involves an evaluation of most of
the indexing criteria, with the major
exceptions being target animal safety
and effectiveness. The second part

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includes the agency’s determination of
the suitability of the qualified expert
panel and a review of whether the new
animal drug meets the statutory criteria
regarding target animal safety and
effectiveness.
The determination of eligibility for
indexing is initiated by a request to the
agency that must be accompanied by
sufficient information to permit the
agency to make an informed decision
regarding the request. The information
proposed by the agency to determine
eligibility for indexing, described in
proposed § 516.129(c), is based on the
requirements of 572(c)(1) of the act. The
categories of information are described
below:
1. Food safety
The act allows the indexing of new
animal drugs that are intended for use
in food-producing animals only in
limited circumstances. The new animal
drug must be for use in an early, nonfood life stage of a minor species; it
must be intended for use only in a
hatchery, tank, pond, or other similar
contained man-made structure; and
there must be sufficient information to
demonstrate food safety in accordance
with the standards of section 512(d) of
the act (including, for an antimicrobial
new animal drug, with respect to
antimicrobial resistance).
When a new animal drug proposed for
indexing is not intended for use in an
early life stage of a food-producing
minor species animal, the requestor
must demonstrate that there is a
reasonable certainty that the minor
species or edible products from the
minor species will not be consumed by
humans or food-producing animals. For
many minor species, this should be as
straightforward as an affirmation that
the species has never been traditionally
consumed by humans and is not subject
to being used in the feed of foodproducing animals. A new animal drug
intended for use in a wildlife species
might be eligible for indexing if it could
be demonstrated that there is a
reasonable certainty that treated animals
would not be subsequently harvested
and consumed by humans or foodproducing animals.
Under the proposed rule, FDA would
rely on its existing regulations regarding
the food safety standards of section
512(d) of the act, which are in part 514
(21 CFR part 514) at § 514.111, and be
guided by relevant policies and
guidance such as FDA’s Guidance for
Industry (GFI) #152.
2. Environmental assessments
Under the proposal, a request for
eligibility would be required to contain

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either an environmental assessment or
sufficient information to support a
categorical exclusion from the
requirement to prepare an
environmental assessment. The
proposal would rely on the process and
the standards for environmental
assessments that are already defined in
part 25 (21 CFR part 25). It would also
amend part 25 to have categorical
exclusions relating to indexing that
parallel those relating to new animal
drug approvals.
3. Occupational and user safety
As with new animal drug approvals,
indexing includes a provision for a
demonstration of safety to individuals
exposed to the new animal drug during
the drug’s manufacture and use. FDA
intends to rely on the same user safety
standards for both drug approval and
drug indexing.
4. Chemistry, manufacturing, and
control information
The required chemistry,
manufacturing, and control information,
and the agency’s review of that
information, are much different for
indexing than they are for approval.
A request for a determination of
eligibility for a new animal drug for
indexing must include ‘‘information
regarding’’ the components and
composition of the involved drug
(section 572(c)(1)(C) of the act) and must
also include ‘‘a description’’ of the
methods used in, and the facilities and
controls used for, the manufacture,
processing, and packing of the new
animal drug (section 572(c)(1)(D) of the
act) for the purpose of determining
whether the requestor has an
understanding of current Good
Manufacturing Practices (cGMPs) and
has established appropriate
specifications for the manufacture and
control of the new animal drug (section
572(c)(2)(C) of the act). In addition,
before a new animal drug can be added
to the index, the requestor must make a
commitment that the indexed drug will
be manufactured in compliance with
cGMPs (section 572(d)(1)(F) of the act).
In contrast, an NADA must include a
‘‘full list’’ of the articles used as
components of the drug and ‘‘a full
statement’’ of the composition of the
drug (section 512(b)(1)(B), (C) of the act)
as well as ‘‘a full description’’ of the
methods used in, and the facilities and
controls used for, the manufacture,
processing, and packing of the new
animal drug (section 512(b)(1)(D) of the
act). These statutory requirements, as
implemented by regulation (21 CFR
514.1(b)(4), (5)), result in a highly
detailed NADA submission which must

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contain sufficient information to permit
FDA to determine the adequacy of the
‘‘full description’’ with respect to
preserving the identity, strength,
quality, and purity of the subject new
animal drug (see section 512(d)(1)(C) of
the act).
As previously stated, FDA believes
that the submission of chemistry,
manufacturing, and control information
for a new animal drug proposed for
indexing that would meet the relevant
statutory standard would consist of a
comprehensive summary of the
manufacturing process that is sufficient
to permit a determination that the
requestor understands cGMPs and has
established appropriate specifications in
accordance with that understanding.
FDA believes that the ‘‘full description’’
and underlying confirmatory
information that are required in an
NADA would not be necessary in a
request for determination of eligibility
for indexing.
5. Other Information
Proposed 21 CFR 516.129 also
requires that a request for determination
of eligibility contain the following: (1)
Identification of the minor species or
groups of minor species for which
indexing is sought; (2) a statement of the
intended use(s) in those species; (3) a
statement of the conditions of use, such
as dosage, route of administration,
warnings, contraindications or other
significant limitations associated with
the intended use(s); (4) a brief
discussion of the need for the drug for
the intended use(s); and (5) an estimate
of the anticipated annual distribution
after indexing.
Additionally, the regulation provides
that a single request for eligibility may
involve only one drug (or combination
of drugs) in one dosage form, may
involve multiple intended uses or
multiple minor species, may not involve
a new animal drug that is contained in
or a product of a transgenic animal, and
may not involve the same drug in the
same dosage form for the same intended
use as a new animal drug that is already
approved or conditionally approved.
G. Granting and denying requests for a
determination of eligibility and
notification thereof (proposed § 516.133,
§ 516.135, and § 516.137).
FDA will deny a request for
determination of eligibility if a requestor
fails to submit information required by
section 572(c)(1) of the act, or the
submitted information, evaluated
together with other information
available to the agency, is insufficient to
support a decision to grant a request in

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accordance with section 572(c)(2) of the
act.
The new animal drug that is the
subject of the request must be
sufficiently characterized to enable the
agency to determine whether the same
drug in the same dosage form for the
same intended use is already approved
or conditionally approved. The
proposed designation rule contains a
definition of sameness regarding these
three elements that would also apply to
indexing (see proposed § 516.3
published in the Federal Register of
September 27, 2005 (70 FR 56394)).
FDA believes that the estimate of the
quantity of the indexed drug likely to be
distributed on an annual basis following
indexing is primarily required because
of concern over extralabel use of
indexed drugs, which is statutorily
prohibited. The anticipated quantity to
be distributed for the intended
purpose(s) can serve as a baseline
against which actual distribution can be
measured. Significant differences
between expected and actual
distribution may indicate that an
indexed drug is being used for other
than its intended purposes. An
estimation of the quantity of drug likely
to be distributed may also inform
decisions associated with the extent of
environmental or user exposure
following indexing.
As previously noted, a new animal
drug which is contained in or is the
product of a transgenic animal may not
be indexed. A transgenic animal is
defined, in section 571(j) of the act, as
an animal whose genome contains a
nucleotide sequence that has been
intentionally modified in vitro, and the
progeny of such an animal; provided
that the term ‘‘transgenic animal’’ does
not include an animal of which the
nucleotide sequence of the genome has
been modified solely by selective
breeding.
Under the proposal, FDA cannot
determine a drug to be eligible for
indexing if the information submitted in
support of the request evaluated
together with other information
available to the agency is insufficient to
do the following: (1) Demonstrate food
safety in an early, non-food life stage of
a food-producing minor species animal
or demonstrate that there is a reasonable
certainty that treated animals will not be
consumed by humans or food-producing
animals, (2) determine that the requestor
has established appropriate
specifications for the manufacture and
control of the new animal drug, (3)
demonstrate that the requestor has an
understanding of current good
manufacturing practices, or (4)
determine that the new animal drug is

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safe with respect to individuals exposed
to the new animal drug during
manufacture or use; or the request fails
to include an adequate environmental
assessment or sufficient information to
support a categorical exclusion from the
requirement to prepare an
environmental assessment.
In addition, under the proposal a
request for a determination of eligibility
for indexing may be denied if it contains
any untrue statement of a material fact
or omits material information.
Within 90 days after the submission
of a request for a determination of
eligibility for a non food-producing
animal, or 180 days for a request for an
early, non-food life stage of a foodproducing animal, FDA must grant or
deny the request and notify the
requestor of its decision in writing. If
FDA denies the request, the agency will
provide due notice and an opportunity
for an informal conference regarding its
decision. A decision of FDA to deny a
request for determination of eligibility
for indexing following an informal
conference would constitute the final
agency action subject to judicial review.
H. Qualified expert panels (proposed
§ 516.141).
Once a requestor has received a letter
granting eligibility for indexing, as the
first step in the process of requesting an
index listing, it can propose a qualified
expert panel. The panel, which operates
external to FDA, plays a central role in
the indexing process—evaluating target
animal safety and effectiveness
information and making a
recommendation to FDA based on its
evaluation. Section 572(d) of the act
requires the agency to ‘‘define the
criteria for selection of a qualified
expert panel and the procedures for the
operation of the panel.’’ The same
section states that the panel is not
subject to the Federal Advisory
Committee Act, also known as FACA.
Section 516.141 of the proposed
implementing regulations describes the
process for selecting the qualified expert
panel and describes how the panel
operates. It does this by stating the
responsibilities of each of the parties
involved—the requestor, FDA, the panel
members, and the panel leader.
Because of the diverse nature of the
products that are subject to indexing
and anticipated differences in the
availability and accessibility of experts
qualified to review different product
classes, the proposed rule does not
specify the day-to-day operations of a
qualified expert panel other than to
require that the activities of the panel be
conducted in accordance with generally
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business practices and that one member
of the panel be identified to serve as the
‘‘leader’’ of the review process. The
leader would serve as the principal
spokesperson for the panel and be
responsible for submitting the panel’s
final written report to the requestor and
maintaining records of the final report.
In addition, the agency plans to issue
guidance documents regarding other
aspects of the operation of expert panels
and the preparation of written reports.
In developing the selection criteria for
the qualified expert panel, FDA adapted
some aspects of the agency’s
implementation of section 523 of the act
(21 U.S.C. 360m). That provision deals
with FDA accreditation of persons in
the private sector to conduct the initial
pre-market review for certain medical
devices. FDA also considered its use of
advisory committees that review
information and make recommendations
to FDA on various technical and
scientific issues relating to product
approval. In addition, FDA tried to
minimize the burden on the potential
members to help ensure that qualified
individuals will be willing to participate
while still establishing adequate
controls to help ensure that FDA obtains
objective, high quality evaluations and
recommendations.
To maintain the integrity of the
review process, one proposed selection
criterion is that a qualified expert panel
member must not have a conflict of
interest or the appearance of a conflict
of interest, unless FDA makes a
determination to allow participation
notwithstanding an otherwise
disqualifying financial interest. The
proposed rule describes the factors that
are, and are not, relevant to determining
whether there is a conflict of interest or
the appearance of a conflict of interest
and identifies the information needed
from potential panel members to
support this determination by the
agency. Proposed § 516.141(e)(7)
requires qualified expert panel members
to immediately notify the requestor and
FDA of any change in conflict of interest
status. For purposes of this regulation,
the agency believes that this generally
requires a panelist to report changes in
his conflict of interest status within 30
days.
In selecting members for the qualified
expert panel, the person requesting the
index listing would be required to
ensure that the members have the
requisite scientific training and
experience to evaluate the target animal
safety and effectiveness of the new
animal drug at issue for the proposed
intended use. The group of identified
experts would also be required to

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represent an adequate range of expertise
to fully evaluate the product.
After identifying potential panel
members, the requestor would be
required to provide their names and
addresses to FDA, along with sufficient
information about each proposed
member for FDA to determine whether
the panel meets the selection criteria
other than with respect to potential
conflicts of interest. Each proposed
panel member would provide
information regarding potential conflicts
of interest directly to the agency. If the
agency determines that the qualified
expert panel does not meet the selection
criteria, it will provide information to
the requestor so that a suitable panel
can be proposed. For example, FDA may
decline some candidates and request
replacements or request that the panel
include additional members to provide
needed expertise. If the requestor
disagrees with FDA’s determination
regarding the panel, under the proposal
it may request review through an
informal conference.
The work of the expert panel centers
around its primary task, which is to
prepare a written report that describes
the panel’s evaluation of all available
target animal safety and effectiveness
information relevant to the proposed
use of the new animal drug and the
panel’s conclusions based on its
evaluation. In preparing the written
report, panel members would be
required to review all relevant
information provided by the requestor
and should also consider any other
relevant information otherwise known
by panel members, including anecdotal
information. Panel members would be
required to participate in the
preparation of the written report.
Members could be paid a reasonable fee
to serve on expert panels by the
requestor.
I. Written report (proposed § 516.143).
The qualified expert panel’s written
report must meet the requirements of
section 572(d)(2) of the act. Under
proposed § 516.143, which would
implement this provision, the report
must describe the panel’s evaluation of
all available target animal safety and
effectiveness information relevant to the
proposed use of the new animal drug;
provide citations of all literature
reviewed and summaries of
unpublished information considered;
and state the panel’s opinion regarding
whether the benefits of using the new
animal drug for the proposed use in a
minor species outweigh its risks to the
target animal, taking into account the
harm being caused by the absence of an
approved or conditionally approved

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new animal drug for the minor species
in question. The purpose of these
requirements is to provide sufficient
information to permit the agency to
assess the quality and quantity of the
information relating to target animal
safety and effectiveness of the new
animal drug assessed by the panel.
Therefore, the panel’s evaluation should
be such that FDA can understand the
basis for the panel’s conclusion
regarding the drug’s benefits and risks.
If the expert panel concludes that the
benefits of using the drug outweigh its
risks, it would also be required to
provide as part of the report either draft
labeling, which includes all conditions
of use deemed necessary by the expert
panel to assure that the benefits of the
drug will outweigh its risks, or narrative
information on the basis of which such
labeling can be drafted by the requestor.
All panel members would be required to
sign the report or otherwise approve it
in writing.
J. Content and format of a request for
addition to the index (proposed
§ 516.145).
As noted previously, the second part
of the indexing regulatory process
involves FDA’s review of whether the
new animal drug meets the statutory
criteria regarding target animal safety
and effectiveness information. FDA’s
review is based on the qualified expert
panel’s written report and
recommendation. The agency’s review
begins with the requestor’s submission
asking for addition of the new animal
drug to the index. This submission must
contain the information required by
section 572(d)(1) of the act. FDA’s
decision to grant or deny the request for
indexing is governed by section
572(d)(4) of the act. Therefore, the
request for addition to the index needs
to contain sufficient information to
permit FDA to grant the request. The
sections of the proposed rule that
implement these statutory provisions
are sections 516.145 and 516.149,
respectively.
K. Refusal to file and review a request
for addition to the index (proposed
§ 516.147).
The agency proposes that if a request
for indexing fails to contain information
required by § 516.145, FDA will not file
or review it and will so notify the
requestor within 30 days of receiving
the request.

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L. Granting or denying a request for
addition to the index and notification
thereof (proposed § 516.149, § 516.151,
and § 516.153).
FDA must deny a request for indexing
if the same drug in the same dosage
form for the same intended use is
approved or conditionally approved.
While this is also a basis for denying
eligibility for indexing, it is possible
that a new animal drug may be
approved or conditionally approved
between the time that a determination
for eligibility is made and the request
for indexing is submitted, thus
preventing the indexing of a new animal
drug previously determined to be
eligible.
It is also possible that new scientific
information may arise between the time
of a determination of eligibility and
submission of a request for indexing.
Section 572(d)(4) of the act (by reference
to section 572(a) of the act) and
proposed § 516.151 require the agency
in reviewing a request for index listing
to evaluate any new information
together with the information available
at the time of a determination of
eligibility to determine whether the new
animal drug is still eligible for indexing.
If a request for indexing fails to
contain, or appropriately reference,
information required by the statute, as
implemented by proposed § 516.145, the
agency would be required to deny the
request.
In general, FDA intends to rely
heavily on the recommendations of the
qualified expert panel regarding target
animal safety and effectiveness,
including the necessary conditions of
use. However, the written report of a
qualified expert panel may not be
sufficiently clear or complete with
respect to the basis for a panel
recommendation to index a new animal
drug to permit FDA to make an
informed decision regarding whether it
agrees with the recommendation. In this
case, FDA would either deny the request
for indexing or, under proposed
§ 516.145(c), require that the requestor
submit the information provided to the
panel. It is also possible that, in some
cases, the written report of an expert
panel may be sufficiently clear and
complete for the agency to make a
decision regarding the panel
recommendations, but the agency may
disagree in whole or in part with the
recommendations. Such disagreement
may be based on the written report itself
or the report along with additional
information available to the agency. In
such a case, FDA would deny the
request. If FDA denies a request for
addition to the index, the requestor

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could submit another request, which
contains information to overcome the
agency’s grounds for denial.
One of the grounds for denying a
request for addition to the index is that
the qualified expert panel failed to meet
one or more of the selection criteria.
Proposed § 516.141 would require panel
members to submit any new information
regarding conflicts of interest to the
agency so that FDA can determine
whether a disqualifying conflict has
arisen since the agency’s initial review.
Under the proposal, and consistent
with FDA’s regulations governing new
animal drug applications, FDA may also
deny a request for addition to the index
if it contains any untrue statement of a
material fact or omits material
information.
Within 180 days after the filing of a
request for addition of a new animal
drug to the index, FDA will grant or
deny the request, and notify the person
requesting indexing of FDA’s decision
in writing. If FDA denies the request for
indexing of a new animal drug, the
agency will provide due notice and an
opportunity for an informal conference.
A decision by FDA to deny a request to
index a new animal drug following an
informal conference will constitute final
agency action subject to judicial review.

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M. Publication of the index and content
of an index listing (proposed § 516.157).
FDA proposes to meet the
requirement of section 572(e)(2) of the
act by maintaining and updating, at
least annually, a publicly available list
of indexed drugs. Each index listing
would contain the following: (1) The
name and address of the person who
holds the index listing, (2) the name of
the new animal drug and the intended
use and conditions of use for which it
is indexed, (3) product labeling, and (4)
conditions and any limitations that the
agency deems necessary regarding the
use of the new animal drug.
N. Modifications to indexed drugs
(proposed § 516.161).
As with approved new animal drugs,
and as provided for by section 572(e)(3)
of the act, there will almost certainly be
a need to change the conditions under
which a new animal drug is indexed or
other aspects of an indexed drug at
some point after indexing. The proposed
regulations for making such changes are
based on those governing new animal
drug applications, although the
proposed regulations are generally less
burdensome than the regulatory
requirements of the corresponding
section of 21 CFR part 514.
Proposed § 516.161 provides for three
classes of changes to indexed drugs.

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The first class of changes involves the
following: (1) The addition to labeling
or prescription drug advertising of
additional warning, contraindication,
side effect, or cautionary information,
(2) the deletion from labeling or
prescription drug advertising of false,
misleading, or unsupported indications
for use or claims of effectiveness, or (3)
changes in manufacturing methods or
controls required to correct product or
manufacturing defects that may result in
serious adverse drug events. Changes of
this nature should be made as soon as
possible and a request for modification
of an index listing containing
information describing the need for the
change should be concurrently
submitted to the agency.
The second class of changes involves
the following: (1) Addition of an
intended use, (2) addition of a species,
(3) addition or alteration of an active
ingredient, (4) alteration of the
concentration of an active ingredient, (5)
alteration of the dose or dosage regimen,
or (6) alteration of prescription or overthe-counter status. Changes of this
nature can be made only after a request
to make such a change has been granted
by FDA. Each such change must go
through the same review process as the
original index listing. Therefore, the
initial submission to FDA relating to
such a change should be a request for
a determination of eligibility for
indexing that relates specifically to the
proposed change. However, while the
process for modifications to index
listings of this kind follows the same
process as a new index listing, much of
the work to support the initial listing
might also support the change to the
listing and so would not have to be
duplicated. Likewise, the panel that
reviewed the original request for listing
would likely be acceptable to review the
proposed change as well. The agency
notes, however, that the nature of the
change or new information about, for
example, the product’s safety or
effectiveness, may mean that previous
work would no longer be adequate to
support the change.
The third class of changes involves
any change to the conditions established
in labeling or otherwise described in the
request for determination of eligibility
or request for indexing at the time a new
animal drug was indexed other than
those noted above. Information
describing such changes would be
required to be submitted as part of the
annual indexed drug experience report.
These changes include changes to the
formulation of the product or to the
manufacturing methods or controls
other than those to correct defects that
may cause serious adverse drug events.

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Changes to the formulation or
manufacturing process would be
required to be reported at the same level
of detail as the level of detail at which
the formulation or manufacturing
process were initially described in the
request for determination of eligibility
for indexing.
The proposed provisions under
§ 516.161 would apply only to
modifications to the indexed drug.
Regardless of which class of changes is
requested, these provisions would not
apply to changes that would cause an
indexed drug to be a different drug (or
different combination of drugs) or a
different dosage form. In the case of
such a submission, the agency would
deny the request for modification and
notify the holder that a new index
listing is required for the new drug or
dosage form. The designation proposed
rule (September 27, 2005, 70 FR 56394)
contains proposed definitions for ‘‘same
drug’’ and ‘‘same dosage form.’’ The
holder could then initiate the new
listing by submitting a request for
eligibility for the new drug or dosage
form.
O. Change in ownership of an index file
(proposed § 516.163).
The agency proposes that, in order to
meet the requirement of section
572(e)(1)(A) of the act, the owner of an
index file supporting an index listing
may transfer ownership of the file
provided that the agency is
appropriately notified of this. The
agency would then update the index
listing accordingly.
P. Records and reports (proposed
§ 516.165).
Section 572(i) of the act requires the
maintenance of records and the
submission of reports sufficient to
permit a determination of whether an
indexed drug should be removed from
the index. The information FDA
believes is necessary to make this
determination is described in proposed
§ 516.165. This information would be
similar in nature but less extensive than
the information required with respect to
approved new animal drugs. Most of the
information required would be
submitted annually, on, or within 60
days of, the anniversary date of the
letter granting the request for indexing.
Under the proposed regulation,
product or manufacturing defects that
may result in serious adverse drug
experiences must be reported to the
appropriate FDA District Office or
resident post within three working days
of their discovery. Serious and
unexpected adverse drug experiences
must be reported to the Director,

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OMUMS within 15 working days of the
index holder first receiving the
information.
Distribution of an indexed drug by a
distributor would be permissible
provided that the holder of the index
listing submits a special report at the
time of initial distribution by the
distributor containing the information
required under proposed § 516.165. This
includes a signed statement from the
distributor that the indexed drug will be
distributed and promoted only in
accordance with the index listing.
The agency proposes that all other
required information be submitted
annually. This includes the following:
The quantity of the drug distributed
(domestically and for export), holder
and distributor current package labeling
with a summary of any changes in
labeling since the previous annual
report, a summary of changes in the
manufacturing process (at the level of
detail that the manufacturing process
was described in the request for
determination of eligibility) not already
reported under proposed § 516.161, any
pertinent safety or effectiveness
information not previously reported,
and any adverse drug experience
information not previously reported.

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Q. Removal from the index (proposed
§ 516.167).
Proposed § 516.167 provides for
removal of a new animal drug from the
index, after due notice to the holder of
the index listing and an opportunity for
an informal conference.
The proposed grounds for removal,
which track those in the act, include
that the same drug in the same dosage
form for the same intended use has been
approved or conditionally approved.
In accordance with section 572(f)(1) of
the act, if FDA determines, subsequent
to the indexing of a new animal drug,
that the qualified expert panel failed to
meet its applicable requirements, FDA
would remove the drug from the index.
In light of the purpose of the MUMS
act to increase the availability of legally
marketed new animal drugs to treat
minor species, the agency proposes to
only partially remove an index listing if
it believes that doing so would
satisfactorily resolve a safety or
effectiveness issue otherwise warranting
complete removal of the drug from the
index. For example, if an index listing
provides for the use of a new animal
drug in several minor species and new
information indicates that the benefits
of using the drug in one of those minor
species does not outweigh its risks to
that species, the agency may remove
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that minor species from the index
listing.
In accordance with section 572(f)(2) of
the act, the regulation proposes that
FDA may immediately suspend a new
animal drug from the index if it
determines that there is a reasonable
probability that the use of the drug
would present a risk to the health of
humans or other animals. The agency
would subsequently offer the holder of
the index listing an opportunity for an
informal conference.
A decision by FDA to remove a new
animal drug from the index following an
informal conference would constitute
final agency action subject to judicial
review.
R. Confidentiality of data and
information in an index file (proposed
§ 516.171).
This proposed regulation is based on
§ 514.11, which applies to new animal
drug application files. It would apply to
index files, which would encompass all
data and information submitted to or
incorporated by reference into the index
file including requests for determination
of eligibility for indexing, information
supporting selection of expert panel
members, requests for addition to the
index, claimed investigational
exemptions under proposed § 516.125,
requests for modification to indexed
drugs, reports submitted under
proposed § 516.165, and master files.
III. Conforming Changes
FDA is proposing conforming changes
to certain applicable sections of the
Code of Federal Regulations (CFR) that
would add a reference to new animal
drugs that are index listed under section
572 of the act. The affected sections in
title 21 of the CFR are:
§ 20.100 Applicability; cross-reference
to other regulations.
§ 25.33 Animal drugs.
§ 201.105 Veterinary drugs.
§ 201.115 New drugs or new animal
drugs.
§ 201.122 Drugs for processing,
repacking, or manufacturing.
§ 202.1 Prescription-drug
advertisements.
§ 207.21 Times for registration and
drug listing.
§ 207.35 Notification of registrant;
drug establishment registration number
and drug listing number.
§ 225.1 Current good manufacturing
practice.
§ 225.35 Use of work areas,
equipment, and storage areas for other
manufacturing and storage purpose.
§ 225.135 Work and storage areas.
§ 226.1 Current good manufacturing
practice.

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§ 500.25 Anthelmintic drugs for use in
animals.
§ 500.26 Timed-release dosage form
drugs.
§ 510.301 Records and reports
concerning experience with animal
feeds bearing or containing new animal
drugs for which an approved medicated
feed mill license application is in effect.
§ 510.305 Maintenance of copies of
approved medicated feed mill licenses
to manufacture animal feed bearing or
containing new animal drugs.
§ 510.455 Requirements for freechoice medicated feeds.
§ 511.1 New animal drugs for
investigational use exempt from section
512(a) of the act.
§ 515.10 Medicated feed mill license
applications.
§ 515.21 Refusal to approve a
medicated feed mill license application.
§ 558.3 Definitions and general
considerations applicable to this part.
§ 558.5 Requirements for liquid
medicated feed.
§ 558.6 Veterinary feed directive
drugs.
§ 589.1000 Gentian violet.
In § 201.105, FDA is also proposing to
remove a reference to certification
requirements applicable to preparations
of antibiotic drugs. FDA no longer
certifies or recognizes certification of
antibiotic drugs.
In addition, FDA is proposing to
remove the last sentence in § 500.25(c)
because it cites § 514.9 which no longer
exists. Labeling revisions for animal
feeds bearing or containing anthelmintic
drugs are now subject to the same
requirements under 21 CFR 500.25 as
dosage form drugs. Medicated animal
feeds covered by approved applications
are subject to the provisions of § 514.8
(d) and (e). Medicated animal feeds
covered by an index listing are subject
to the provisions of 21 CFR
516.161(b)(1).
IV. Legal Authority
FDA’s authority for issuing this
proposed rule is provided by the MUMS
act (21 U.S.C. 360ccc et seq.). When
Congress passed the MUMS act, it
directed FDA to publish implementing
regulations (see 21 U.S.C. 360ccc note).
In the context of the MUMS act, the
statutory requirements of section 572 of
the act, along with section 701(a) of the
act (21 U.S.C. 371(a)) provide authority
for this proposed rule. Section 701(a)
authorizes the agency to issue
regulations for the efficient enforcement
of the act.
V. Analysis of Economic Impacts
FDA has examined the impacts of the
proposed rule under Executive Order

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12866, the Regulatory Flexibility Act (5
U.S.C. 601–612), and the Unfunded
Mandates Reform Act (Public Law 104–
4). Executive Order 12866 directs
agencies to assess all costs and benefits
of available regulatory alternatives and,
when regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety, and other advantages; and
distributive impacts and equity). The
Regulatory Flexibility Act (5 U.S.C.
601–612) requires agencies to analyze
regulatory options that would minimize
any significant impact of a rule on small
entities.
FDA tentatively finds that the
proposed rule does not constitute an
economically significant regulatory
action as defined in 3(f)(1) of Executive
Order 12866. We base this on the
following analysis that estimates annual
costs ranging from about $342,000 in the
first year to about $735,000 in the 10th
year. Similarly, the administrative costs
are unlikely to have a significant
economic impact on a substantial
number of small entities.
Section 202(a) of the Unfunded
Mandates Reform Act requires that
agencies prepare a written statement,
which includes an assessment of
anticipated costs and benefits, before
proposing ‘‘any rule that may result in
an annual expenditure by State, local
and tribal governments, in the aggregate,
or by the private sector, of $100 million
(adjusted annually for inflation) in any
one year.’’ The current threshold after
adjustment for inflation is $115 million,
using the most current (2003) implicit
price deflator for the Gross Domestic
Product. FDA does not expect this
proposed rule to result in any 1-year
expenditure that would meet or exceed
this amount. As such, no further
analysis of anticipated costs and
benefits is required by the Unfunded
Mandates Reform Act.
Summary
The proposed rule is expected to
result in about 30 requestors, each
averaging about 2 requests for a
determination of eligibility for indexing
of individual animal drugs annually,
submitting a total of 60 requests
annually. We estimate that requestors
for 20 of these products will create and
convene expert panels to review the
safety and efficacy data. Further, the
recommendations of these panels are
expected to lead to the addition of 20
animal drug index listings each year.
Benefit
This rule intends to create
administrative practices and procedures
for index listing a new animal drug for
use in a minor species, thereby

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providing the benefit of a legal basis for
marketing an unapproved new animal
drug intended for use in a minor
species. The need for the rule arises
from the existence of some minor
species populations that are too small to
support traditional drug approval
studies. The countervailing risk of this
rule is that sponsors of animal drugs
that are marginally economically viable
could use this system to avoid the
traditional animal drug approval
process. Under this proposed rule,
however, the voluntary indexing of a
new animal drug for use in a minor
species would only be allowed when
the same drug in the same dosage form
for the same intended use is not already
approved or conditionally approved,
thereby reducing this risk.
Administrative Costs
This section will describe and
estimate the annual administrative costs
by proposed provision for both
producers of currently unapproved
drugs that would request an index
listing and FDA. First, we address the
efforts required by requestors concerned
with index listing. The estimates of the
number of requestors, frequencies of
responses, and hours per procedure for
each of the provisions of the proposed
rule were determined by Center for
Veterinary Medicine personnel.
We estimate that, on average, two
foreign requestors of drug indexing
would need to hire a permanent
resident agent to represent them. We
expect this to require about 1 hour of
administrative time for a requestor’s
management employee in regulatory
affairs. We estimate the loaded wage
estimate at $42.29 per hour (including a
30 percent increase for benefits) for
regulatory affairs personnel.1 This
provision would cost the two requestors
a total of about $85. We expect that a
resident agent would expend only about
6 hours of administrative effort per year
per indexed drug. We estimate the wage
rate of the resident agent at $100 to $150
per hour, and use the midpoint, $125,
for our calculations. Total annual costs
for resident agents are estimated at
$1,500 (two agents times 6 hours times
$125 per hour) in the first year. In the
10th year this is expected to rise to
about $15,000 as two more resident
agents each provide 6 more hours of
administrative effort each additional
year. Due to the uncertainty in the costs
12004 National Industry-Specific Occupational
Employment and Wage Estimates, U.S. Department
of Labor, Bureau of Labor Statistics (http://
www.bls.gov/oes/current/naics4_325400.htm);
compliance officer wage rate for pharmaceutical
and medicine manufacturing (NAICS 325400).

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for resident agents, we request public
comment and data on this issue.
Proposed § 516.121 provides for one
or more meetings between requestors
and FDA to discuss the requirements for
indexing a new animal drug. We
estimate that 30 requestors will each
request, on average, 2 meetings
annually, for a total of 60 meetings.
Preparation and participation in these
meetings is estimated at 4 hours each,
for an annual total of 240 hours.
Proposed § 516.123 concerns informal
conferences regarding agency
administrative actions. These would
include conferences to discuss a request
for determination of eligibility that has
been denied, the removal of an expert
panel member, a request for indexing
that was denied or an indexed drug that
was removed from the list. We estimate
that about three requestors would
request one conference with FDA
annually for any of these reasons. We
expect that each requestor would
expend about 8 hours (24 hours total) to
prepare for and attend each of these
conferences. The combined efforts for
preparation and participation in all
conferences are estimated at 264 hours
(240 plus 24). At the same loaded wage
estimate of $42.29 per hour, this
provision is expected to cost about
$11,200 annually.
For proposed § 516.125, we estimate
that two requestors would each
annually submit three notices of
claimed investigational exemptions for
new animal drugs for index listing. We
estimate that each submission would
require about 20 hours for regulatory
affairs personnel to prepare. At the
loaded wage estimate of $42.29 per
hour, the total of 120 hours would cost
about $5,100.
We estimate that about 30 requestors
would each average about 2 requests for
determination of eligibility for indexing
of individual animal drugs annually,
totaling to 60 requests annually for
proposed § 516.129. At the loaded wage
estimate of $42.29 per hour, and our
estimate of 12 hours of preparation for
each request, this provision would
require about 720 hours equal to about
$30,400. Included in this estimate of 60
requests are any resubmitted requests
that were previously denied.
Proposed § 516.141 would require the
creation of a qualified expert panel to
review all information, provided by any
source, relevant to a determination of
the target animal safety and
effectiveness of the new animal drug.
FDA would be required to approve the
panel members before the panel
formally convened. We estimate that
requestors of 20 animal drugs, or about
one-third of the 60 animal drugs that

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Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules
annually are determined to be eligible
for indexing, would create qualified
expert panels to further study the safety
and efficacy data. The creation of each
panel by a requestor is estimated to take
about 8 hours of effort by regulatory
affairs personnel. At the same loaded
wage estimate, these 160 hours would
cost about $6,800 annually.
Proposed § 516.143 describes how the
expert panel would prepare a written
report for FDA with its findings
concerning the new animal drug under
consideration for index listing. The
review of the relevant information and
preparation of the report by each panel
would take an estimated 80 hours. This
equates to 1,600 hours for 20 panels.
The proposed rule allows for fees to be
paid to panel members for their time.
We estimated the average wage rate for
panel members at $100 to $150/hr, and
use the midpoint ($125) in our
calculations. At this wage, we estimate
these activities to cost up to $200,000
annually for the total industry, or
$10,000 per requestor for each animal
drug under consideration. An additional
0.5 hours is estimated for recordkeeping
of the final written report described in
proposed § 516.143 by the panel leader.
This would result in an additional $400
in costs annually. We request comment
and data on the range of hourly wage
rates for qualified panel members.
We estimate that the formal request
for addition to the index, provided for
in proposed § 516.145, would require
about 12 hours to prepare. This would
result in another 240 hours of effort (20
requests times 12 hours) for regulatory
affairs personnel. We project the
compliance cost of this effort at $10,200
annually.
We only expect to receive one request
each for a modification to an indexed
listed drug and a change in ownership
of an index file annually (provided for
in proposed §§ 516.161 and 516.163),
and estimate the preparation of each to
require 4 and 2 hours, respectively. In
total, these compliance efforts would
cost about $250 in the first year. Total
modification requests and ownership
change notifications are expected to
increase by 1 each year so that 10 of
each would be expected to be submitted
in year 10. The cost of these provisions
in year 10 is estimated at about $2,500.
This proposed rule would require, in
§ 516.165, that records and reports be
created, submitted and retained by the
holder of the indexed drug. These
records include a 3-day indexed drug
field alert report, a 15-day indexed drug
field alert report and an annual indexed
drug experience report. We expect that
the vast majority of compliance efforts
will be associated with the annual

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indexed drug experience report.
Because the number of expected
requests that are granted for addition to
the index is 20 per year (on average, 20
requestors with 1 request granted each),
the number of reports to be created,
submitted and stored is also estimated
at 20 per year. We estimate the reports
for each index listing would require 8
hours annually, totally about 160 hours
for all 20 listings. At the loaded wage
estimate of $42.29 per hour, we estimate
the first-year reporting costs at about
$6,800. These annual costs will increase
by an additional $6,800 each year as an
additional 20 indexed drugs are added
to the list. In year 10 we estimate the
cost of this provision at about $67,700.
Further, we expect that the maintenance
of these records (recordkeeping) would
require an additional hour of
administrative time for each indexed
drug listing. These additional 20 hours
would cost about $850 at the same
loaded wage estimate in the first year,
and would also increase in succeeding
years by an additional $850 as
additional indexed drugs are added to
the list. We estimate the cost of this
provision in year 10 at about $8,500.
For those choosing to seek a MUMS
index listing of an unapproved animal
drug, total requestor compliance costs
are expected to sum to about $273,000
in the first year. These costs would be
borne by 30 requestors at an average
cost per requestor of about $9,100 per
indexed drug. Costs in succeeding years
would be expected to increase slightly
due to the annual reporting
requirements for all indexed drugs
resulting in year-10 costs of about
$358,000.
Costs to Government
The Government would also incur
costs for this proposed rule. We expect
that about 60 percent of a full-time
equivalent employee at a GS–14 salary
would be needed to handle the
administrative work of the indexing of
MUMS drugs in the first year. This
would include all administrative efforts
from responding to requests for
presubmission meetings to making
changes to approved indexed drugs. We
estimate Government costs (including a
30 percent adjustment for benefits) of
this provision at about $69,000 in the
first year. In year 10 we estimate that up
to four full time equivalent employees
(one GS–14 position, two GS–13
positions and one GS–11 position)
would be needed to administer the
program. Including a 30 percent
adjustment for benefits, we estimate that
the cost to Government in year 10 could
increase to about $378,000.
Total costs for this proposed rule
would be the sum of private

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48849

administrative and Government costs.
Total costs are estimated to increase
from $342,000 in the first year up to
$735,000 in the 10th year.
Regulatory Flexibility Analysis
1. Small Business Impacts
The Regulatory Flexibility Act
requires agencies to prepare a regulatory
flexibility analysis if a rule is expected
to have a significant economic impact
on a substantial number of small
entities. Although we believe it is
unlikely that significant economic
impacts would occur, the following
constitutes the initial regulatory
flexibility analysis.
One requirement of the Regulatory
Flexibility Act is a succinct statement of
any objectives of the rule. As stated
previously in this analysis, with this
rule the agency intends to create an
administrative system, provided for by
statute, that would allow for the legal
marketing of unapproved animal drugs
for intended uses in minor species in
the U.S. that would otherwise not be
economically viable under current
market conditions.
The Regulatory Flexibility Act also
requires a description of the small
entities that would be affected by the
rule, and an estimate of the number of
small entities to which the rule would
apply. The Small Business
Administration (SBA) defines the
criteria for small businesses using the
North American Industrial
Classification System (NAICS). For
pharmaceutical preparation
manufacturers (NAICS number 325412),
SBA defines small businesses as those
with less than 750 employees. Census
data shows that 723 companies with 901
establishments represent this category.2
While about two-thirds of the
establishments would be considered
small using the SBA criteria, the agency
acknowledges that many requests for
MUMS index listing would likely be
received from multi-establishment
companies that exceed the 750employee limit on small businesses.
Nonetheless, the average cost for a
requestor that has two meetings with us,
requests a determination of eligibility
for indexing, creates and convenes a
qualified panel of experts resulting in a
written report, requests an addition to
the index and keeps all necessary
records, would be about $12,600. This
cost per request represents about 1.5
percent of the revenues of the smallest
set of establishments (those with one to
four employees), and less than 0.4
22002 Economic Census, U.S. Census Bureau,
Manufacturing Industry Series, Pharmaceutical
Preparation Manufacturing, Tables 3 and 4.

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Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules

percent of revenues of all larger
establishments. These costs would not
represent a significant economic impact
on these firms, especially in light of the
fact that they incur these expenses in
order to realize increased sales revenue
from the indexing. The firms submitting
requests for index listing are expected to
already have the necessary
administrative personnel with the skills
required to prepare the requests and
fulfill reporting requirements as
identified above.
2. Analysis of Alternatives
The Regulatory Flexibility Act
requires that the agency consider any
alternatives to the proposed rule that
would accomplish the objective while
minimizing significant impacts of the
rule. As stated previously, the agency
believes that the proposed rule, due to
the relatively small size of the costs,
would not be likely to impose
significant economic impacts on a
substantial number of small businesses.
The statute that creates this system,
Pub. L. 108–282, does not provide the
agency a great deal of flexibility in the
implementing regulations, such as in
determining whether or not to use
independent qualified expert panels to
review the safety and efficacy data. We
conclude that the proposed rule
achieves the objective of increasing drug
availability for minor species with
minimal costs to industry while staying
within the limits set by Pub. L. 108–282.
VI. Paperwork Reduction Act of 1995
This proposed rule contains
information collection provisions that
are subject to review by the Office of
Management and Budget (OMB), under
the Paperwork Reduction Act of 1995
(the PRA) (44 U.S.C. 3501–3520). A
description of these provisions is given
below with an estimate of the annual
reporting and recordkeeping burden.

Included in the estimate is the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing each
collection of information.
FDA invites comments on these
topics: (1) Whether the proposed
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 proposed 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; (4) ways to minimize the
burden of the collection of information
on respondents, including through the
use of automated collection techniques
and other forms of information
technology.
Title: Index of Legally Marketed
Unapproved New Animal Drugs for
Minor Species 21 CFR Part 516
Description: The Minor Use and
Minor Species Animal Health Act of
2004 (MUMS act) amended the Federal
Food, Drug, and Cosmetic Act (the act)
to authorize FDA to establish new
regulatory procedures intended to make
more medications legally available to
veterinarians and animal owners for the
treatment of minor animal species
(species other than cattle, horses, swine,
chickens, turkeys, dogs, and cats), as
well as uncommon diseases in major
animal species.
The MUMS act created three new
sections to the act (section 571, 572, and
573), and this proposed rule is intended
to implement section 572 of the act,
which provides for an index of legally
marketed unapproved new animal drugs
for minor species. Participation in any
part of the MUMS program is optional
so the associated paperwork only

applies to those who choose to
participate. The proposed rule specifies,
among other things, the criteria and
procedures for requesting eligibility for
indexing and for requesting addition to
the index as well as the annual
reporting requirements for index
holders.
Under the new subpart C of part 516,
proposed § 516.119 provides
requirements for naming a permanentresident U.S. agent by foreign drug
companies, and § 516.121 would
provide for informational meetings with
FDA. Section 516.123 provides
proposed requirements for requesting
informal conferences regarding agency
administrative actions and proposed
§ 516.125 provides for investigational
use of new animal drugs intended for
indexing. Provisions for requesting a
determination of eligibility for indexing
can be found under proposed § 516.129
and provisions for subsequent requests
for addition to the index can be found
under proposed § 516.145. A
description of the written report
required in § 516.145 can be found
under proposed § 516.143. Under
proposed § 516.141 are provisions for
drug companies to nominate a qualified
expert panel as well as the panel’s
recordkeeping requirements. This
section would also call for the
submission of a written conflict of
interest statement to FDA by each
proposed panel member. Index holders
would be able to modify their index
listing under proposed § 516.161 or
change drug ownership under proposed
§ 516.163. Requirements for records and
reports are proposed under § 516.165.
Description of Respondents:
Pharmaceutical companies that sponsor
new animal drugs.
Thus, FDA estimates the burden for
this collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

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21 CFR Section

No. of
Respondents

Annual Frequency
per Response

Total Annual
Responses

Hours per
Response

Total Hours

516.119

2

1

2

1

2

516.121

30

2

60

4

240

516.123

3

1

3

8

24

516.125

2

3

6

20

120

516.129

30

2

60

12

720

516.141

20

1

20

8

160

516.143

20

1

20

80

1,600

516.145

20

1

20

12

240

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Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules
TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1—Continued
21 CFR Section

No. of
Respondents

Annual Frequency
per Response

Total Annual
Responses

Hours per
Response

Total Hours

516.161

1

1

1

4

4

516.163

1

1

1

2

2

516.165

10

2

20

8

160

Total
1There

3,272
is no capital or operating and maintenance costs associated with this collection of information.

TABLE 2.—ESTIMATED ANNUAL RECORDKEEPING BURDEN1
21 CFR Section

No. of
Respondents

Annual Frequency
per Response

Total Annual
Responses

Hours per
Response

Total Hours

516.141

30

2

60

0.5

30

516.165

10

2

20

1

20

Total
1There

50
is no capital or operating and maintenance costs associated with this collection of information.

The burden estimate for this reporting
requirement was derived by our Office
of Minor Use and Minor Species Animal
Drug Development by extrapolating
from relevant portions of the current
Investigational New Animal Drug
(INAD) and NADA reporting
requirements for similar actions by a
similar segment of the regulated
industry and from previous interactions
with the minor species community.
In compliance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
3507(d)), the agency has submitted the
information collection provisions of this
proposed rule to OMB for review.
VII. Environmental Impact
We have carefully considered the
potential environmental impacts of this
rule and determined under 21 CFR
25.30(h) 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.

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VIII. Federalism
We have analyzed this proposed rule
in accordance with the principles in
Executive Order 13132. We have
determined that the proposed rule does
not contain policies that have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. Accordingly, we
have tentatively concluded that the
proposed rule does not contain policies

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that have federalism implications as
defined in the Executive order and,
consequently, a federalism summary
impact statement has not been prepared.
IX. Comments
You may submit to the Division of
Dockets Management (see ADDRESSES)
written or electronic comments
regarding this document. Please submit
a single copy of electronic comments or
two paper copies of any mailed
comments, except that individuals may
submit one paper copy. Identify your
comments with the docket number
found in brackets in the heading of this
document. You may view received
comments in the Division of Dockets
Management between 9 a.m. and 4 p.m.,
Monday through Friday.
List of Subjects
21 CFR Part 20
Confidential business information,
Courts, Freedom of information,
Government employees.
21 CFR Part 25
Environmental impact statements,
Foreign relations, Reporting and
recordkeeping requirements.
21 CFR Part 201
Drugs, Labeling, Reporting and
recordkeeping requirements.
21 CFR Part 202
Advertising, Prescription drugs.
21 CFR Part 207
Drugs, Reporting and recordkeeping
requirements.

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21 CFR Part 225
Animal drugs, Animal feeds,
Labeling, Packaging and containers,
Reporting and recordkeeping
requirements.
21 CFR Part 226
Animal drugs, Animal feeds,
Labeling, Packaging and containers,
Reporting and recordkeeping
requirements.
21 CFR Part 500
Animal drugs, Animal feeds, Cancer,
Labeling, Packaging and containers,
Polychlorinated biphenyls (PCBs).
21 CFR Part 510
Administrative practice and
procedure, Animal drugs, Labeling,
Reporting and recordkeeping
requirements.
21 CFR Part 511
Animal drugs, Medical research,
Reporting and recordkeeping
requirements.
21 CFR Part 515
Administrative practice and
procedure, Animal drugs, Confidential
business information, Reporting and
recordkeeping requirements.
21 CFR Part 516
Administrative practice and
procedure, Animal drugs, Confidential
business information, Reporting and
recordkeeping requirements.
21 CFR Part 558
Animal drugs, Animal feeds.

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Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules

Animal feeds, Animal foods, Food
additives.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, it is proposed that
21 CFR Chapter I be amended as
follows:

eligibility for indexing, a supplement to
such applications, or a modification of
an index listing, for:
*
*
*
*
*
(g) Withdrawal of approval of an
NADA or an abbreviated NADA or
removal of a new animal drug from the
index.
*
*
*
*
*

PART 20—PUBLIC INFORMATION

PART 201—LABELING

1. The authority citation for 21 CFR
part 20 continues to read as follows:

5. The authority citation for 21 CFR
part 201 continues to read as follows:

Authority: 5 U.S.C. 552; 18 U.S.C. 1905; 19
U.S.C. 2531–2582; 21 U.S.C. 321–393, 1401–
1403; 42 U.S.C. 241, 242, 242a, 242l, 242n,
243, 262, 263, 263b–263n, 264, 265, 300u–
300u–5, 300aa–1.

Authority: 21 U.S.C. 321, 331, 351, 352,
353, 355, 358, 360, 360b, 360gg–360ss, 371,
374, 379e; 42 U.S.C. 216, 241, 262, 264.

21 CFR Part 589

2. Amend § 20.100 by adding
paragraph (c)(44) to read as follows:

§ 201.105

§ 20.100 Applicability; cross-reference to
other regulations.

*

*
*
*
*
(c) * * *
(44) Minor-species drug index
listings, in § 516.171 of this chapter.
PART 25—ENVIRONMENTAL IMPACT
CONSIDERATIONS
3. 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.

4. Amend § 25.33 by revising
paragraphs (a) introductory text, (c), (d)
introductory text, and (g) to read as
follows:
§ 25.33

Animal drugs.

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*

*
*
*
*
(a) Action on an NADA, abbreviated
application, request for determination of
eligibility for indexing, a supplement to
such applications, or a modification of
an index listing, if the action does not
increase the use of the drug. Actions to
which this categorical exclusion applies
may include:
*
*
*
*
*
(c) Action on an NADA, abbreviated
application, request for determination of
eligibility for indexing, a supplement to
such applications, or a modification of
an index listing, for substances that
occur naturally in the environment
when the action does not alter
significantly the concentration or
distribution of the substance, its
metabolites, or degradation products in
the environment.
(d) Action on an NADA, abbreviated
application, request for determination of

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6. Amend § 201.105 by revising
paragraphs (c)(2) and (d)(1) to read as
follows:
Veterinary drugs.

*

*
*
*
*
(c) * * *
(2) If the article is subject to section
512 or 572 of the act, the labeling
bearing such information is the labeling
authorized by the approved new animal
drug application or contained in the
index listing: Provided, however, That
the information required by paragraph
(c)(1) of this section may be omitted
from the dispensing package if, but only
if, the article is a drug for which
directions, hazards, warnings, and use
information are commonly known to
veterinarians licensed by law to
administer the drug. Upon written
request, stating reasonable grounds
therefore, the Commissioner will offer
an opinion on a proposal to omit such
information from the dispensing
package under this proviso.
(d) * * *
(1) Adequate information for such
use, including indications, effects,
dosages, routes, methods, and frequency
and duration of administration, and any
relevant warnings, hazards,
contraindications, side effects, and
precautions, and including information
relevant to compliance with the new
animal drug provisions of the act, under
which veterinarians licensed by law to
administer the drug can use the drug
safely and for the purposes for which it
is intended, including all conditions for
which it is advertised or represented;
and if the article is subject to section
512 or 572 of the act, the parts of the
labeling providing such information are
the same in language and emphasis as
labeling approved, permitted, or
indexed under the provisions of section
512 or 572, and any other parts of the
labeling are consistent with and not
contrary to such approved, permitted, or
indexed labeling; and
*
*
*
*
*

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7. Amend § 201.115 by revising
paragraphs (a) and (b) to read as follows:
§ 201.115

New drugs or new animal drugs.

*

*
*
*
*
(a) To the extent to which such
exemption is claimed in an approved
application with respect to such drug
under section 505 or 512 of the act or
an index listing with respect to such
drug under section 572 of the act; or
(b) If no application under section 505
of the act is approved with respect to
such drug but it complies with section
505(i), 512, or 572 of the act and
regulations thereunder.
*
*
*
*
*
8. Amend § 201.122 by revising
paragraphs (a), (b), and (c) to read as
follows:
§ 201.122 Drugs for processing, repacking,
or manufacturing.

*

*
*
*
*
(a) An approved new drug application
or new animal drug application or a
new animal drug index listing covers
the production and delivery of the drug
substance to the application or index
listing holder by persons named in the
application or in the request for
determination of eligibility for indexing,
and, for a new drug substance, the
export of it by such persons under
§ 314.410 of this chapter; or
(b) If no application is approved with
respect to such new drug or new animal
drug and it is not listed in the index, the
label statement ‘‘Caution: For
manufacturing, processing, or
repacking’’ is immediately
supplemented by the words ‘‘in the
preparation of a new drug or new
animal drug limited by Federal law to
investigational use’’, and the delivery is
made for use only in the manufacture of
such new drug or new animal drug
limited to investigational use as
provided in part 312 or § 511.1 or
§ 516.125 of this chapter; or
(c) A new drug application or new
animal drug application or a request for
addition to the index covering the use
of the drug substance in the production
and marketing of a finished drug
product has been submitted but not yet
approved, disapproved, granted, or
denied, the bulk drug is not exported,
and the finished drug product is not
further distributed after it is
manufactured until after the new drug
application or new animal drug
application is approved or the request
for addition to the index is granted.
PART 202—PRESCRIPTION DRUG
ADVERTISING
9. The authority citation for 21 CFR
part 202 continues to read as follows:

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Authority: 21 U.S.C. 321, 331, 352, 355,
360b, 371.

10. Amend § 202.1 by revising
paragraph (e)(4)(i)(a) to read as follows:
§ 202.1

Prescription-drug advertisements.

*

*
*
*
*
(e) * * *
(4) Substance of information to be
included in brief summary. (i)(a) An
advertisement for a prescription drug
covered by a new-drug application
approved pursuant to section 505 of the
act after October 10, 1962, or a
prescription drug covered by a new
animal drug application approved
pursuant to section 512 of the act after
August 1, 1969, or any approved
supplement thereto, or for a prescription
drug listed in the index pursuant to
section 572 of the act, or any granted
modification thereto, shall not
recommend or suggest any use that is
not in the labeling accepted in such
approved new-drug application or
supplement, new animal drug
application or supplement, or new
animal drug index listing or
modification. The advertisement shall
present information from labeling
required, approved, permitted, or
granted in a new-drug or new animal
drug application or new animal drug
index listing relating to each specific
side effect and contraindication in such
labeling that relates to the uses of the
advertised drug dosage form(s) or shall
otherwise conform to the provisions of
paragraph (e)(3)(iii) of this section.
*
*
*
*
*
PART 207—REGISTRATION OF
PRODUCERS OF DRUGS AND LISTING
OF DRUGS IN COMMERCIAL
DISTRIBUTION
11. The authority citation for 21 CFR
part 207 continues to read as follows:
Authority: 21 U.S.C. 321, 331, 351, 352,
355, 360, 360b, 371, 374, 381, 393; 42 U.S.C.
262, 264, 271.

12. Amend § 207.21 by revising the
second sentence in paragraph (a) to read
as follows:

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§ 207.21
listing.

Times for registration and drug

(a) * * * If the owner or operator of
the establishment has not previously
entered into such an operation, the
owner or operator shall register within
5 days after submitting a new drug
application, abbreviated new drug
application, new animal drug
application, abbreviated new animal
drug application, request for addition to
the index, medicated feed mill license
application, or a biologics license
application. * * *
*
*
*
*
*

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13. Amend § 207.35 by revising
paragraph (b)(3)(v) to read as follows:
§ 207.35 Notification of registrant; drug
establishment registration number and drug
listing number.

*

*
*
*
*
(b) * * *
(3) * * *
(v) The placing of the assigned NDC
number on a label or in other labeling
does not require the submission of a
supplemental new drug application,
supplemental new animal drug
application, or a modification to an
index listing.
*
*
*
*
*
PART 225—CURRENT GOOD
MANUFACTURING PRACTICE FOR
MEDICATED FEEDS

48853

and storage of fertilizers, herbicides,
insecticides, fungicides, rodenticides,
and other pesticides unless such articles
are approved or index listed for use in
the manufacture of animal feed.
PART 226—CURRENT GOOD
MANUFACTURING PRACTICE FOR
TYPE A MEDICATED ARTICLES
18. The authority citation for 21 CFR
part 226 continues to read as follows:
Authority: 21 U.S.C. 351, 352, 360b, 371,
374.

19. Amend § 226.1 by adding a second
sentence to paragraph (b) to read as
follows:
§ 226.1 Current good manufacturing
practice.

Authority: 21 U.S.C. 351, 352, 360b, 371,
374.

*
*
*
*
(b) * * * Similarly, Type A medicated
articles listed in the index are subject to
the requirements of § 516.165 of this
chapter.

15. Amend § 225.1 by revising
paragraph (c) to read as follows:

PART 500—GENERAL

§ 225.1 Current good manufacturing
practice.

20. The authority citation for 21 CFR
part 500 continues to read as follows:

14. The authority citation for 21 CFR
part 225 continues to read as follows:

*

*
*
*
*
(c) In addition to the recordkeeping
requirements in this part, Type B and
Type C medicated feeds made from
Type A articles or Type B feeds under
approved NADAs or indexed listings
and a medicated feed mill license are
subject to the requirements of § 510.301
of this chapter.
16. Amend § 225.35 by revising
paragraph (b) to read as follows:
§ 225.35 Use of work areas, equipment,
and storage areas for other manufacturing
and storage purpose.

*

*
*
*
*
(b) Work areas and equipment used
for the manufacture or storage of
medicated feeds or components thereof
shall not be used for, and shall be
physically separated from, work areas
and equipment used for the
manufacture of fertilizers, herbicides,
insecticides, fungicides, rodenticides,
and other pesticides unless such articles
are approved drugs, indexed drugs, or
approved food additives intended for
use in the manufacture of medicated
feed.
17. Revise § 225.135 to read as
follows:
§ 225.135

Work and storage areas.

Work areas and equipment used for
the production or storage of medicated
feeds or components thereof shall not be
used for, and shall be physically
separated from, work areas and
equipment used for the manufacture

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*

Authority: 21 U.S.C. 321, 331, 342, 343,
348, 351, 352, 353, 360b, 371.

21. Amend § 500.25 by revising
paragraph (c) to read as follows:
§ 500.25 Anthelmintic drugs for use in
animals.

*

*
*
*
*
(c) For drugs covered by approved
new animal drug applications, the
labeling revisions required for
compliance with this section may be
placed into effect without prior
approval, as provided for in § 514.8 (d)
and (e) of this chapter. For drugs listed
in the index, the labeling revisions
required for compliance with this
section may be placed into effect
without prior approval, as provided for
in § 516.161(b)(1) of this chapter.
*
*
*
*
*
22. Amend § 500.26 by revising
paragraph (b) and the second sentence
in paragraph (c) to read as follows:
§ 500.26
drugs.

Timed-release dosage form

*

*
*
*
*
(b) Timed-release dosage form animal
drugs that are introduced into interstate
commerce are deemed to be adulterated
within the meaning of section 501(a)(5)
of the act and subject to regulatory
action, unless such animal drug is the
subject of an approved new animal drug
application, or listed in the index, as
required by paragraph (a) of this section.

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§ 510.455 Requirements for free-choice
medicated feeds.

PART 510—NEW ANIMAL DRUGS

*

23. The authority citation for 21 CFR
part 510 continues to read as follows:
Authority: 21 U.S.C. 321, 331, 351, 352,
353, 360b, 371, 379e.

24. Amend § 510.301 by revising the
introductory text, paragraph (a)(2), and
the second sentence in paragraph (b)(1)
to read as follows:
§ 510.301 Records and reports concerning
experience with animal feeds bearing or
containing new animal drugs for which an
approved medicated feed mill license
application is in effect.

Records and reports of clinical and
other experience with the new animal
drug will be maintained and reported,
appropriately identified with the new
animal drug application(s) or index
listing(s) to which they relate, to the
Center for Veterinary Medicine in
duplicate in accordance with the
following:
(a) * * *
(2) Information concerning any
bacteriological or any significant
chemical, physical, or other change or
deterioration in the drug, or any failure
of one or more distributed batches of the
drug to meet the specifications
established for it in the new animal drug
application or request for determination
of eligibility for indexing.
(b) * * *
(1) * * * Unexpected as used in this
paragraph refers to conditions or
developments not previously submitted
as part of the new animal drug
application or in support of the index
listing or not encountered during
clinical trials of the drug, or conditions
or developments occurring at a rate
higher than shown by information
previously submitted as part of the new
animal drug application or in support of
the index listing or at a rate higher than
encountered during such clinical trials.
*
*
*
*
*
25. Amend § 510.305 by revising
paragraph (b) to read as follows:

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26. Amend § 510.455 by revising
paragraphs (b) and (c) to read as follows:

(c) * * * A new animal drug
application or index listing is required
in any such case.
*
*
*
*
*

§ 510.305 Maintenance of copies of
approved medicated feed mill licenses to
manufacture animal feed bearing or
containing new animal drugs.

*

*
*
*
*
(b) Approved or index listed labeling
for each Type B and/or Type C feed
being manufactured on the premises of
the manufacturing establishment or the
facility where the feed labels are
generated.

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*
*
*
*
(b) What is required for new animal
drugs intended for use in free-choice
feed? Any new animal drug intended for
use in free-choice feed must be
approved for such use under section 512
of the Federal Food, Drug, and Cosmetic
Act (the act) (21 U.S.C. 360(b)) or listed
in the index under section 572 of the act
(21 U.S.C. 360ccc–1). Such approvals
under section 512 of the act must be:
(1) An original new animal drug
application (NADA),
(2) A supplemental NADA, or
(3) An abbreviated NADA.
(c) What are the approval
requirements under section 512 of the
act for new animal drugs intended for
use in free-choice feed? An approval
under section 512 of the act for a Type
A medicated article intended for use in
free-choice feed must contain the
following information:
(1) Data, or reference to data in a
master file (MF), showing that the target
animal consumes the new animal drug
in the Type C free-choice feed in an
amount that is safe and effective
(consumption/effectiveness data); and
(2) Data, or reference to data in an MF,
showing the relevant ranges of
conditions under which the drug will be
chemically and physically stable in the
Type C free-choice feed under field
conditions.
*
*
*
*
*

30. Amend § 515.10 by revising
paragraphs (b)(4) and (b)(7) to read as
follows:
§ 515.10 Medicated feed mill license
applications.

*

*
*
*
*
(b) * * *
(4) A certification that the animal
feeds bearing or containing new animal
drugs are manufactured and labeled in
accordance with the applicable
regulations published under section
512(i) of the act or in accordance with
the index listing published under
section 572(e)(2) of the act.
*
*
*
*
*
(7) A commitment that current
approved or index listed Type B and/or
Type C medicated feed labeling for each
Type B and/or Type C medicated feed
to be manufactured will be in the
possession of the feed manufacturing
facility prior to receiving the Type A
medicated article containing such drug.
*
*
*
*
*
31. Amend § 515.21 by revising
paragraph (a)(3) to read as follows:
§ 515.21 Refusal to approve a medicated
feed mill license application.

PART 511—NEW ANIMAL DRUGS FOR
INVESTIGATIONAL USE

(a) * * *
(3) The facility manufactures animal
feeds bearing or containing new animal
drugs in a manner that does not accord
with the specifications for manufacture
or labels animal feeds bearing or
containing new animal drugs in a
manner that does not accord with the
conditions or indications of use that are
published under section 512(i) or
572(e)(2) of the act.
*
*
*
*
*

27. The authority citation for 21 CFR
part 511 continues to read as follows:

PART 516—NEW ANIMAL DRUGS FOR
MINOR USE AND MINOR SPECIES

Authority: 21 U.S.C. 321, 351, 352, 353,
360b, 371.

32. Part 516 is amended by adding
subpart C, consisting of §§ 516.111 to
516.171, to read as follows:

28. Amend § 511.1 by adding a
paragraph (g) to read as follows:
§ 511.1 New animal drugs for
investigational use exempt from section
512(a) of the act.

*

*
*
*
*
(g) Index of legally marketed
unapproved new animal drugs for minor
species. All provisions of part 511 apply
to new animal drugs for investigational
use in support of indexing, as described
in section 572 of the act, subject to the
provisions of § 516.125 of this chapter.
PART 515—MEDICATED FEED MILL
LICENSE
29. The authority citation for 21 CFR
part 515 continues to read as follows:
Authority: 21 U.S.C. 360b, 371.

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Subpart C—Index of Legally Marketed
Unapproved New Animal Drugs for Minor
Species
Sec.
516.111 Scope of this subpart.
516.115 Definitions.
516.117 Submission of correspondence
under this subpart.
516.119 Permanent-resident U.S. agent for
foreign requestors and holders.
516.121 Meetings.
516.123 Informal conferences regarding
agency administrative actions.
516.125 Investigational use of minor
species new animal drugs to support
indexing.
516.129 Content and format of a request for
determination of eligibility for indexing.
516.131 Refuse to file a request for
determination of eligibility for indexing.

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516.133 Denying a request for
determination of eligibility for indexing.
516.135 Granting a request for
determination of eligibility for indexing.
516.137 Notification of decision regarding
eligibility for indexing.
516.141 Qualified expert panels.
516.143 Written report.
516.145 Content and format of a request for
addition to the index.
516.147 Refuse to file a request for addition
to the index.
516.149 Denying a request for addition to
the index.
516.151 Granting a request for addition to
the index.
516.153 Notification of decision regarding
index listing.
516.155 Labeling of indexed drugs.
516.157 Publication of the index and
content of an index listing.
516.161 Modifications to indexed drugs.
516.163 Change in ownership of an index
file.
516.165 Records and reports.
516.167 Removal from the index.
516.171 Confidentiality of data and
information in an index file.
Authority: 21 U.S.C. 360ccc–1, 371.

Subpart C—Index of Legally Marketed
Unapproved New Animal Drugs for
Minor Species

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§ 516.111

Scope of this subpart.

This subpart implements section 572
of the act and provides standards and
procedures to establish an index of
legally marketed unapproved new
animal drugs. This subpart applies only
to minor species and not to minor use
in major species. This index is only
available for new animal drugs intended
for use in a minor species for which
there is a reasonable certainty that the
animal or edible products from the
animal will not be consumed by
humans or food-producing animals and
for new animal drugs intended for use
only in a hatchery, tank, pond, or other
similar contained man-made structure
in an early, non-food life stage of a foodproducing minor species, where safety
for humans is demonstrated in
accordance with the standard of section
512(d) of the act (including, for an
antimicrobial new animal drug, with
respect to antimicrobial resistance). The
index shall not include a new animal
drug that is contained in, or a product
of, a transgenic animal. Among its
topics, this subpart sets forth the
standards and procedures for:
(a) Investigational exemptions for
indexing purposes;
(b) Submissions to FDA of requests for
determination of eligibility of a new
animal drug for indexing;
(c) Establishment and operation of
expert panels;

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(d) Submissions to FDA of requests
for addition of a new animal drug to the
index;
(e) Modifications to index listings;
(f) Publication of the index; and
(g) Records and reports.
§ 516.115

Definitions.

(a) The following definitions of terms
apply only in the context of subpart C
of this part:
Director means the Director of the
Office of Minor Use and Minor Species
Animal Drug Development of the FDA
Center for Veterinary Medicine.
Holder means the requestor of an
index listing after the request is granted
and the new animal drug is added to the
index.
Index means FDA’s list of legally
marketed unapproved new animal drugs
for minor species.
Intended use means the intended
treatment, control or prevention of a
disease or condition, or the intention to
affect the structure or function of the
body of animals within an identified
species, subpopulation of a species, or
collection of species.
Qualified expert panel means a panel
that is composed of experts qualified by
scientific training and experience to
evaluate the target animal safety and
effectiveness of a new animal drug
under consideration for indexing.
Requestor means the person making a
request for determination of eligibility
for indexing or a request for addition to
the index.
Transgenic animal means an animal
whose genome contains a nucleotide
sequence that has been intentionally
modified in vitro, and the progeny of
such an animal, provided that the term
‘transgenic animal’ does not include an
animal of which the nucleotide
sequence of the genome has been
modified solely by selective breeding.
(b) The definitions of the following
terms are given in § 514.3 of this
chapter:
Adverse drug experience.
Product defect/manufacturing defect.
Serious adverse drug experience.
Unexpected adverse drug experience.
§ 516.117 Submission of correspondence
under this subpart.

Unless directed otherwise by FDA, all
correspondence relating to any aspect of
the new animal drug indexing process
described in this subpart must be
addressed to the Director of the Office
of Minor Use and Minor Species Animal
Drug Development. The initial
correspondence for a particular index
listing should include the name and
address of the authorized contact
person. Notifications of changes in such

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48855

person or changes of address of such
person should be provided in a timely
manner.
§ 516.119 Permanent-resident U.S. agent
for foreign requestors and holders.

Every foreign requestor and holder
shall name a permanent resident of the
United States as their agent upon whom
service of all processes, notices, orders,
decisions, requirements, and other
communications may be made on behalf
of the requestor or holder. Notifications
of changes in such agents or changes of
address of agents should preferably be
provided in advance, but not later than
60 days after the effective date of such
changes. The permanent-resident U.S.
agent may be an individual, firm, or
domestic corporation and may represent
any number of requestors or holders.
The name and address of the
permanent-resident U.S. agent shall be
submitted to the Director of the Office
of Minor Use and Minor Species Animal
Drug Development and included in the
index file.
§ 516.121

Meetings.

(a) A requestor or potential requestor
is entitled to one or more meetings to
discuss the requirements for indexing a
new animal drug.
(b) Requests for such meetings should
be in writing, be addressed to the
Director, specify the participants
attending on behalf of the requestor or
potential requestor, and contain a
proposed agenda for the meeting.
(c) Within 30 days of receiving a
request for a meeting, FDA will attempt
to schedule the meeting at a time
agreeable to both FDA and the person
making the request.
§ 516.123 Informal conferences regarding
agency administrative actions.

(a) Should FDA make an initial
decision denying a request for
determination of eligibility for indexing,
terminating an investigational
exemption, determining that a qualified
expert panel does not meet the selection
criteria, denying a request for addition
to the index, or removing a new animal
drug from the index, FDA will give
written notice that specifies the grounds
for the initial decision and provides an
opportunity for an informal conference
for review of the decision.
(b) The written notice will include
information for scheduling the informal
conference and state that a written
request for a conference must be made
within 30 calendar days of the date FDA
sends its notice.
(c) Within 30 days of receiving a
request for an informal conference, FDA
will attempt to schedule the meeting at

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a time agreeable to both FDA and the
person making the request.
(d) Such an informal conference will
be conducted by a presiding officer who
will be the Director of the Center for
Veterinary Medicine or his or her
designee, excluding the Director of the
Office of Minor Use and Minor Species
Animal Drug Development and other
persons significantly involved in the
initial decision.
(e) The person requesting an informal
conference must provide a written
response to FDA’s initial decision at
least 2 weeks prior to the date of the
scheduled meeting. Generally, this
written response would be attached to
the request for an informal conference.
At the option of the person requesting
an informal conference, such written
response to FDA’s initial decision may
act in lieu of a face-to-face meeting. In
this case, the informal conference will
consist of a review by the presiding
officer of the submitted written
response.
(f) The purpose of an informal
conference is to discuss scientific and
factual issues. It will involve a
discussion of FDA’s initial decision and
any written response to that decision.
(g) Internal agency review of a
decision must be based on the
information in the administrative file. If
the person requesting an informal
conference presents new information
not in the file, the matter will be
returned to the appropriate lower level
in the agency for reevaluation based on
the new information.
(h) Informal conferences under this
part are not subject to the separation of
functions rules in § 10.55 of this
chapter.
(i) The rules of evidence do not apply
to informal conferences. No motions or
objections relating to the admissibility
of information and views will be made
or considered, but any party to the
conference may comment upon or rebut
all such data, information and views.
(j) The presiding officer will prepare
a written summary of the informal
conference and share it with the parties
to the conference.
(k) The presiding officer will prepare
a written report regarding the subject of
the informal conference that states and
describes the basis for his or her
findings.
(l) The administrative record of the
informal conference will consist of:
(1) The notice providing an
opportunity for an informal conference
and the written response to the notice.
(2) All written information and views
submitted to the presiding officer at the
conference or, at the discretion of the
presiding officer, thereafter.

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(3) The written summary of the
informal conference.
(4) The presiding officer’s written
report.
(5) All correspondence and
memoranda of any and all meetings
between the participants and the
presiding officer.
(m) The administrative record of the
informal conference is closed to the
submission of information and views at
the close of the conference, unless the
presiding officer specifically permits
additional time for further submission.
(n) The administrative record of the
informal conference specified herein
constitutes the exclusive record for
decision.
§ 516.125 Investigational use of minor
species new animal drugs to support
indexing.

(a) The investigational use of a new
animal drug or animal feed bearing or
containing a new animal drug intended
solely for investigational use in minor
species shall meet the requirements of
part 511 of this chapter if the
investigational use is for the purpose of:
(1) Demonstrating human food safety
under section 572(a)(1)(B) of the act;
(2) Demonstrating safety with respect
to individuals exposed to the new
animal drug through its manufacture
and use under section 572(c)(1)(F) of the
act;
(3) Conducting an environmental
assessment under section 572(c)(1)(E) of
the act; or
(4) Obtaining approval of a new
animal drug application or abbreviated
new animal drug application under
section 512(b) of the act.
(b) Correspondence and information
associated with investigations described
in paragraph (a) of this section shall not
be sent to the Director, OMUMS, but
shall be submitted to FDA in accordance
with the provisions of part 511 of this
chapter.
(c) The investigational use of a new
animal drug or animal feed bearing or
containing a new animal drug intended
solely for investigational use in minor
species, other than for an investigational
use described in paragraph (a) of this
section, shall meet the requirements of
this section. For such investigations, all
provisions of part 511 of this chapter
apply with the following modifications:
(1) Under § 511.1(a)(1) of this chapter,
the label statement is as follows:
‘‘Caution. Contains a new animal drug
for investigational use only in laboratory
animals or for tests in vitro in support
of index listing. Not for use in humans.’’
(2) Under § 511.1(b)(1) of this chapter,
the label statement is as follows:
‘‘Caution. Contains a new animal drug
for use only in investigational animals

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in clinical trials in support of index
listing. Not for use in humans. Edible
products of investigational animals are
not to be used for food for humans or
other animals unless authorization has
been granted by the U.S. Food and Drug
Administration or by the U.S.
Department of Agriculture.’’
(3) Under § 511.1(b)(4) of this chapter,
the notice is titled ‘‘Notice of Claimed
Investigational Exemption for a New
Animal Drug for Index Listing’’ and is
submitted in duplicate to the Director.
(4) Under § 511.1(c)(3) of this chapter,
if an investigator is determined to be
ineligible to receive new animal drugs,
each ‘‘Notice of Claimed Investigational
Exemption for a New Animal Drug for
Index Listing’’ and each request for
indexing shall be examined with respect
to the reliability of information
submitted by the investigator.
(5) Under § 511.1(c)(4) and (d)(2) of
this chapter, with respect to termination
of exemptions, the sponsor of an
investigation shall not be granted an
opportunity for a regulatory hearing
before FDA pursuant to part 16 of this
chapter. Instead, the sponsor shall have
an opportunity for an informal
conference as described in § 516.123.
(6) Under § 511.1(c)(5) of this chapter,
if the Commissioner of Food and Drugs
determines, after the unreliable data
submitted by the investigator are
eliminated from consideration, that the
data remaining are such that a request
for addition to the index would have
been denied, FDA will remove the new
animal drug from the index in
accordance with § 516.167.
(d) The investigational use of a new
animal drug or animal feed bearing or
containing a new animal drug subject to
paragraph (c) of this section shall not be
subject to the good laboratory practice
requirements in part 58 of this chapter.
(e) Correspondence and information
associated with investigations described
in paragraph (c) of this section shall be
sent to the Director of the Office of
Minor Use and Minor Species in
accordance with the provisions of this
section.
§ 516.129 Content and format of a request
for determination of eligibility for indexing.

(a) Each request for determination of
eligibility:
(1) May involve only one drug (or one
combination of drugs) in one dosage
form;
(2) May not involve a new animal
drug that is contained in or a product of
a transgenic animal;
(3) May not involve the same drug in
the same dosage form for the same
intended use as a drug that is already

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approved or conditionally approved;
and
(4) Must be submitted separately.
(b) A request for determination of
eligibility for indexing may involve
multiple intended uses and/or multiple
minor species. However, if a request for
determination of eligibility for indexing
that contains multiple intended uses
and/or multiple minor species cannot be
granted in any part, the entire request
will be denied.
(c) A requestor must submit two
copies of a dated request signed by the
authorized contact person for
determination of eligibility for indexing
that contains the following:
(1) Identification of the minor species
or groups of minor species for which the
new animal drug is intended;
(2) Information regarding drug
components and composition;
(3) A statement of the intended use(s)
of the new animal drug in the identified
minor species or groups of minor
species;
(4) A statement of the proposed
conditions of use associated with the
stated intended use(s) of the new animal
drug, including the proposed dosage,
route of administration,
contraindications, warnings, and any
other significant limitations associated
with the intended use(s) of the new
animal drug;
(5) A brief discussion of the need for
the new animal drug for the intended
use(s);
(6) An estimate of the anticipated
annual distribution of the new animal
drug, in terms of the total quantity of
active ingredient, after indexing;
(7) Information to establish that the
new animal drug is intended for use:
(i) In a minor species for which there
is a reasonable certainty that the animal
or edible products from the animal will
not be consumed by humans or foodproducing animals; or
(ii) In a hatchery, tank, pond, or other
similar contained man-made structure
in (which includes on) an early, nonfood life stage of a food-producing
minor species, and information to
demonstrate food safety in accordance
with the standards of section 512(d) of
the act and § 514.111 of this chapter
(including, for an antimicrobial new
animal drug, with respect to
antimicrobial resistance);
(8) A description of the methods used
in, and the facilities and controls used
for, the manufacture, processing and
packing of the new animal drug
sufficient to demonstrate that the
requestor has established appropriate
specifications for the manufacture and
control of the new animal drug and that

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the requestor has an understanding of
current good manufacturing practices;
(9) Either a claim for categorical
exclusion under § 25.30 or § 25.33 of
this chapter or an environmental
assessment under § 25.40 of this
chapter;
(10) Information sufficient to support
the conclusion that the new animal drug
is safe under section 512(d) of the act
with respect to individuals exposed to
the new animal drug through its
manufacture and use; and
(11) The name and address of the
contact person or permanent-resident
U.S. agent.
§ 516.131 Refuse to file a request for
determination of eligibility for indexing.

(a) If a request for determination of
eligibility for indexing contains all of
the information required by § 516.129,
FDA shall file it, and the filing date
shall be the date FDA receives the
request.
(b) If a request for a determination of
eligibility lacks any of the information
required by § 516.129, FDA will not file
it, but will inform the requestor in
writing within 30 days of receiving the
request as to what information is
lacking.
§ 516.133 Denying a request for
determination of eligibility for indexing.

(a) FDA will deny a request for
determination of eligibility for indexing
if it determines upon the basis of the
request evaluated together with any
other information before it with respect
to the new animal drug that:
(1) The same drug in the same dosage
form for the same intended use is
already approved or conditionally
approved;
(2) There is insufficient information to
demonstrate that the new animal drug is
intended for use:
(i) In a minor species for which there
is a reasonable certainty that the animal
or edible products from the animal will
not be consumed by humans or foodproducing animals, or
(ii) In a hatchery, tank, pond, or other
similar contained man-made structure
in (which includes on) an early, nonfood life stage of a food-producing
minor species, and there is insufficient
evidence to demonstrate safety for
humans in accordance with the
standard of section 512(d) of the act and
§ 514.111 of this chapter (including, for
an antimicrobial new animal drug, with
respect to antimicrobial resistance);
(3) The new animal drug is contained
in or is a product of a transgenic animal;
(4) There is insufficient information to
demonstrate that the requestor has
established appropriate specifications

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48857

for the manufacture and control of the
new animal drug and that the requestor
has an understanding of current good
manufacturing practices;
(5) The requester fails to submit an
adequate environmental assessment
under § 25.40 of this chapter or fails to
provide sufficient information to
establish that the requested action is
subject to categorical exclusion under
§ 25.30 or § 25.33 of this chapter;
(6) There is insufficient information to
determine that the new animal drug is
safe with respect to individuals exposed
to the new animal drug through its
manufacture or use; or
(7) The request for determination of
eligibility for indexing fails to contain
any other information required under
the provisions of § 516.129.
(b) FDA may deny a request for
determination of eligibility for indexing
if it contains any untrue statement of a
material fact or omits material
information.
(c) When a request for determination
of eligibility for indexing is denied, FDA
will notify the requestor in accordance
with § 516.137.
§ 516.135 Granting a request for
determination of eligibility for indexing.

(a) FDA will grant the request for
determination of eligibility for indexing
if none of the reasons described in
§ 516.133 for denying such a request
applies.
(b) When a request for determination
of eligibility for indexing is granted,
FDA will notify the requestor in
accordance with § 516.137.
§ 516.137 Notification of decision
regarding eligibility for indexing.

(a) Within 90 days after the filing of
a request for a determination of
eligibility for indexing based on
§ 516.129(c)(7)(i), or 180 days for a
request based on § 516.129(c)(7)(ii), FDA
shall grant or deny the request, and
notify the requestor of FDA’s decision in
writing.
(b) If FDA denies the request, FDA
shall provide due notice and an
opportunity for an informal conference
as described in § 516.123 regarding its
decision. A decision of FDA to deny a
request for determination of eligibility
for indexing following an informal
conference shall constitute final agency
action subject to judicial review.
§ 516.141

Qualified expert panels.

(a) Establishment of a qualified expert
panel. Establishing a qualified expert
panel is the first step in the process of
requesting the addition of a new animal
drug to the index. A qualified expert
panel may not be established until FDA

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has determined that the new animal
drug is eligible for indexing. The
requestor must choose members for the
qualified expert panel in accordance
with selection criteria listed in
paragraph (b) of this section and submit
information about these proposed
members to FDA. FDA must determine
whether the proposed qualified expert
panel meets the selection criteria prior
to the panel beginning its work.
Qualified expert panels operate external
to FDA and are not subject to the
Federal Advisory Committee Act, as
amended, 5 U.S.C. App.
(b) Criteria for the selection of a
qualified expert panel. (1) A qualified
expert panel member must be an expert
qualified by training and experience to
evaluate the target animal safety and
effectiveness of the new animal drug
under consideration.
(2) A qualified expert panel member
must certify that he or she has a working
knowledge of section 572 of the act (the
indexing provisions of the statute) and
this subpart, and that he or she has also
read and understood a clear written
statement provided by the requestor
stating his or her duties and
responsibilities with respect to
reviewing the new animal drug
proposed for addition to the index.
(3) A qualified expert panel member
may not be an FDA employee.
(4) A qualified expert panel must have
at least three members.
(5) A qualified expert panel must have
members with a range of expertise such
that the panel, as a whole, is qualified
by training and experience to evaluate
the target animal safety and
effectiveness of the new animal drug
under consideration.
(6) Unless FDA makes a
determination to allow participation
notwithstanding an otherwise
disqualifying financial interest, a
qualified expert panel member must not
have a conflict of interest or the
appearance of a conflict of interest, as
described in paragraph (g) of this
section.
(c) Requestor responsibilities. (1) The
requestor must:
(i) Choose members for the qualified
expert panel in accordance with
selection criteria listed in paragraph (b)
of this section.
(ii) Provide each potential expert
panel member a copy of section 572 of
the act (the indexing provisions of the
statute) and this subpart and obtain
certification that he or she has a
working knowledge of the information.
(iii) Provide each potential expert
panel member a written statement
describing the purpose and scope of his
or her participation on the qualified

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expert panel and obtain certification
that he or she has read and understood
the information. The written statement
should describe the duties and
responsibilities of qualified expert
panels and their members established
by paragraphs (e) and (f) of this section,
including the need to prepare a written
report under § 516.143.
(iv) Obtain information from each
potential expert panel member
demonstrating that he or she is qualified
by training and experience to evaluate
the target animal safety and
effectiveness of the new animal drug
under consideration. This information
can be obtained from a comprehensive
curriculum vitae or similar document.
(v) Notify each potential expert panel
member that he or she must submit
information relating to potential conflict
of interest directly to FDA in a timely
manner, as required in paragraph (e)(6)
of this section.
(2) The requestor must submit, in
writing, the names and addresses of the
proposed qualified expert panel
members and sufficient information
about each proposed member for FDA to
determine whether the panel meets the
selection criteria listed in paragraphs
(b)(1) through (b)(5) of this section.
(3) After FDA has determined that the
qualified expert panel meets the
selection criteria, the requestor must
provide to the panel all information
known by the requestor that is relevant
to a determination of the target animal
safety and the effectiveness of the new
animal drug at issue. In addition, the
requestor must notify FDA of the name
of the qualified expert panel leader.
(4) The requestor must immediately
notify FDA if it believes a qualified
expert panel member no longer meets
the selection criteria listed in paragraph
(b) of this section or is otherwise not in
compliance with the requirements of
this section.
(5) If a qualified expert panel member
cannot complete the review for which
he or she was selected, the requestor
must either choose a replacement or
justify the continued work of the panel
in the absence of the lost panelist. In
either case, the requestor must submit
sufficient information for FDA to
determine whether the proposed revised
qualified expert panel meets the
selection criteria listed in paragraphs
(b)(1) through (b)(5) of this section.
(6) The requestor must keep copies of
all information provided to, or received
from, qualified expert panel members,
including the written report, for 2 years
after the completion of the report, or the
product is added to the index,
whichever occurs later, and make them

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available to a duly authorized employee
of the agency at all reasonable times.
(d) FDA responsibilities. (1) FDA will
determine whether the requestor’s
proposed qualified expert panel meets
the selection criteria listed in paragraph
(b) of this section. FDA will
expeditiously inform the requestor, in
writing, of its determination. If FDA
determines that the qualified expert
panel does not meet the selection
criteria, FDA will provide due notice
and an opportunity for an informal
conference as described in § 516.123. A
determination by FDA that a proposed
qualified expert panel does not meet the
selection criteria following an informal
conference shall constitute final agency
action subject to judicial review.
(2) If FDA determines that a qualified
expert panel no longer meets the
selection criteria listed in paragraph (b)
of this section or that the panel or its
members are not in compliance with the
requirements of this section, the agency
will expeditiously inform the requestor,
in writing, of this determination and
provide due notice and an opportunity
for an informal conference as described
in § 516.123. A determination by FDA,
following an informal conference, that a
qualified expert panel no longer meets
the selection criteria listed in paragraph
(b) of this section or that the panel or
its members are not in compliance with
the requirements of this section shall
constitute final agency action subject to
judicial review.
(e) Responsibilities of a qualified
expert panel member. A qualified expert
panel member must do the following:
(1) Continue to meet all selection
criteria described in paragraph (b) of
this section.
(2) Act in accordance with generally
accepted professional and ethical
business practices.
(3) Review all information relevant to
a determination of the target animal
safety and effectiveness of the new
animal drug provided by the requestor.
The panel should also consider all
relevant information otherwise known
by the panel members, including
anecdotal information.
(4) Participate in the preparation of
the written report of the findings of the
qualified expert panel, described in
§ 516.143.
(5) Sign, or otherwise approve in
writing, the written report. Such
signature or other written approval will
serve as certification that the written
report meets the requirements of the
written report in § 516.143.
(6) Provide the information relating to
potential conflict of interest described
in paragraph (g) of this section to FDA
for its consideration. Such information

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should be submitted directly to the
Director when notified by the requestor.
(7) Immediately notify the requestor
and FDA of any change in conflict of
interest status.
(8) Certify at the time of submission
of the written report that there has been
no change in conflict of interest status,
or identify and document to FDA any
such change.
(f) Additional responsibilities of a
qualified expert panel leader. (1) The
qualified expert panel leader must
ensure that the activities of the panel are
performed efficiently and in accordance
with generally accepted professional
and ethical business practices.
(2) The qualified expert panel leader
serves as the principal point of contact
between representatives of the agency
and the panel.
(3) The qualified expert panel leader
is responsible for submitting the written
report and all notes or minutes relating
to panel deliberations to the requestor.
(4) The qualified expert panel leader
must maintain a copy of the written
report and all notes or minutes relating
to panel deliberations that are submitted
to the requestor for 2 years after the
report is submitted. Such records must
be made available to a duly authorized
employee of the agency for inspection at
all reasonable times.
(g) Prevention of conflicts of interest.
(1) For the purposes of this subpart,
FDA will consider a conflict of interest
to be any financial or other interest that
could impair a person’s objectivity in
serving on the qualified expert panel or
could create an unfair competitive
advantage for a person or organization.
(2) Factors relevant to whether there
is a conflict of interest or the appearance
of a conflict of interest include whether
the qualified expert panel member, their
spouse, their minor children, their
general partners, or any organizations in
which they serve as an officer, director,
trustee, general partner or employee:
(i) Is currently receiving or seeking
funding from the requestor through a
contract or research grant (either
directly or indirectly through another
entity, such as a university).
(ii) Has any employment, contractual,
or other financial arrangement with the
requestor other than receiving a
reasonable fee for serving as a member
of the qualified expert panel.
(iii) Has any ownership or financial
interest in any drug, drug manufacturer,
or drug distributor which will benefit
from either a favorable or unfavorable
evaluation or opinion.
(iv) Has any ownership or financial
interest in the new animal drug being
reviewed by the qualified expert panel.

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(v) Has participated in the design,
manufacture, or distribution of any drug
that will benefit from either a favorable
or unfavorable opinion of the qualified
expert panel.
(vi) Has provided within 1 year any
consultative services regarding the new
animal drug being reviewed by the
qualified expert panel.
(vii) Has entered into an agreement in
which fees charged or accepted are
contingent upon the panel member
making a favorable evaluation or
opinion.
(viii) Receives payment for services
related to preparing information the
requestor presents to the qualified
expert panel, other than for services
related to the written report described in
§ 516.143.
(3) To permit FDA to make a decision
regarding potential conflict of interest, a
potential qualified expert panel member
must submit to the Director of the Office
of Minor Use and Minor Species the
following information relating to
themselves, their spouse, their minor
children, their general partners, or any
organizations in which they serve as an
officer, director, trustee, general partner
or employee, regarding the following
issues to the extent that they are, in any
way, relevant to the subject of the
review of the qualified expert panel:
(i) Investments (for example, stocks,
bonds, retirement plans, trusts,
partnerships, sector funds, etc.),
including for each the following: Name
of the firm, type of investment, owner
(self, spouse, etc.), number of shares /
current value.
(ii) Employment (full or part time,
current or under negotiation), including
for each the following: Name of the firm,
relationship (self, spouse, etc.), position
in firm, date employment or negotiation
began.
(iii) Consultant/advisor (current or
under negotiation), including for each
the following: Name of the firm, topic/
issue, amount received, date initiated.
(iv) Contracts, grants, Cooperation
Research and Development Agreement
(CRADAs) (current or under
negotiation), including for each the
following: Type of agreement, product
under study and indications, amount of
remuneration (institution/self), time
period, sponsor (government, firm,
institution, individual), role of the
person (site investigator, principal
investigator, co-investigator, partner, no
involvement, other), awardee.
(v) Patents/royalties/trademarks,
including for each the following:
Description, name of firm involved,
income received.
(vi) Expert witness (last 12 months or
under negotiation), including for each

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the following: For or against, name of
firm, issue, amount received.
(vii) Speaking/writing (last 12 months
or under negotiation), including for each
the following: Firm, topic/issue, amount
received (honorarium/travel), date.
(viii) Whether the potential qualified
expert panel member, their spouse, their
minor children, their general partners or
any organizations in which they serve as
an officer, director, trustee, general
partner or employee, have had, at any
time in the past, involvement of the
kind noted in paragraph (g)(3)(i) through
(g)(3)(vii) of this section with respect to
the animal drug that is the subject of the
qualified expert panel review.
(ix) Whether there are any other
involvements (other kinds of
relationships) that would give the
appearance of a conflict of interest
which have not been described in
paragraph (g)(3)(i) through (g)(3)(viii) of
this section.
(x) In all cases, a response of ‘‘no,’’
‘‘none,’’ or ‘‘not applicable’’ is
satisfactory when there is no relevant
information to submit.
(xi) A certification statement signed
by the potential qualified expert panel
member to the effect that all information
submitted is true and complete to the
best of their knowledge, that they have
read and understood their obligations as
an expert panel member, and that they
will notify FDA and the requestor of any
change in their conflict of interest
status.
(4) The fact that a qualified expert
panel member receives a reasonable fee
for services as a member of the qualified
expert panel, provided that the fee is no
more than commensurate with the value
of the time that the member devotes to
the review process, does not constitute
a conflict of interest or the appearance
of a conflict of interest.
§ 516.143

Written report.

The written report required in
§ 516.145(b)(3) shall:
(a) Be written in English by a
qualified expert panel meeting the
requirements of § 516.141;
(b) Describe the panel’s evaluation of
all available target animal safety and
effectiveness information relevant to the
proposed use of the new animal drug,
including anecdotal information;
(c) For all information considered,
including anecdotal information,
include either a citation to published
literature or a summary of the
information;
(d) State the panel’s opinion regarding
whether the benefits of using the new
animal drug for the proposed use in a
minor species outweigh its risks to the
target animal, taking into account the

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harm being caused by the absence of an
approved or conditionally-approved
new animal drug for the minor species
in question;
(e) Be signed, or otherwise approved
in writing, by all panel members, in
accordance with § 516.141; and
(f) If the panel unanimously
concludes that the benefits of using the
new animal drug for the proposed use
in a minor species outweigh its risks to
the target animal, taking into account
the harm being caused by the absence of
an approved or conditionally-approved
new animal drug for the minor species
in question, the written report shall:
(1) Provide draft labeling that
includes all conditions of use and
limitations of use of the new animal
drug deemed necessary by the panel to
assure that the benefits of use of the new
animal drug outweigh the risks, or
provide narrative information from
which such labeling can be written by
the requestor; and
(2) Include a recommendation
regarding whether the new animal drug
should be limited to use under the
professional supervision of a licensed
veterinarian.

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§ 516.145 Content and format of a request
for addition to the index.

(a) A requestor may request addition
of a new animal drug to the index only
after the new animal drug has been
granted eligibility for indexing.
(b) A requestor shall submit two
copies of a dated request signed by the
authorized contact for addition of a new
animal drug to the index that contains
the following:
(1) A copy of FDA’s determination of
eligibility issued under § 516.137;
(2) A copy of FDA’s written
determination that the proposed
qualified expert panel meets the
selection criteria provided for in
§ 516.141(b);
(3) A written report that meets the
requirements of § 516.143;
(4) A proposed index entry that
contains the information described in
§ 516.157;
(5) Proposed labeling, including
representative labeling proposed to be
used for Type B and Type C medicated
feeds if the drug is intended for use in
the manufacture of medicated feeds;
(6) Anticipated annual distribution of
the new animal drug, in terms of the
total quantity of active ingredient, after
indexing;
(7) A written commitment to
manufacture the new animal drug and
animal feeds bearing or containing such
new animal drug according to current
good manufacturing practices;
(8) A written commitment to label,
distribute, and promote the new animal

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drug only in accordance with the index
entry;
(9) The name and address of the
contact person or permanent-resident
U.S. agent; and
(10) A draft Freedom of Information
summary which includes the following
information:
(i) A general information section that
contains the name and address of the
requestor and a description of the drug,
route of administration, indications, and
recommended dosage.
(ii) A list of the names and affiliations
of the members of the qualified expert
panel, not including their addresses or
other contact information.
(iii) A summary of the findings of the
qualified expert panel concerning the
target animal safety and effectiveness of
the drug.
(iv) Citations of all publicly-available
literature considered by the qualified
expert panel.
(v) For an early life stage of a foodproducing minor species animal, a
human food safety summary.
(c) Upon specific request by FDA, the
requestor shall submit the information
described in § 516.141 that it submitted
to the qualified expert panel. Any such
information not in English should be
accompanied by an English translation.
§ 516.147 Refuse to file a request for
addition to the index.

(a) If a request for addition to the
index contains all of the information
required by § 516.145(b), FDA shall file
it, and the filing date shall be the date
FDA receives the request.
(b) If a request for addition to the
index lacks any of the information
required by § 516.145, FDA will not file
it, but will inform the requestor in
writing within 30 days of receiving the
request as to what information is
lacking.
§ 516.149 Denying a request for addition to
the index.

(a) FDA will deny a request for
addition to the index if it finds the
following:
(1) The same drug in the same dosage
form for the same intended use is
already approved or conditionally
approved;
(2) On the basis of new information,
the new animal drug no longer meets
the conditions for eligibility for
indexing;
(3) The request for indexing fails to
contain information required under the
provisions of § 516.145;
(4) The qualified expert panel fails to
meet any of the selection criteria listed
in § 516.141(b);
(5) The written report of the qualified
expert panel and other information

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available to FDA is insufficient to
permit FDA to determine that the
benefits of using the new animal drug
for the proposed use in a minor species
outweigh its risks to the target animal,
taking into account the harm caused by
the absence of an approved or
conditionally-approved new animal
drug for the minor species in question;
(6) On the basis of the report of the
qualified expert panel and other
information available to FDA, the
benefits of using the new animal drug
for the proposed use in a minor species
do not outweigh its risks to the target
animal, taking into account the harm
caused by the absence of an approved or
conditionally-approved new animal
drug for the minor species in question;
or
(7) The request contains any untrue
statement of a material fact or omits
material information.
(b) When a request for addition to the
index is denied, FDA will notify the
requestor in accordance with § 516.153.
§ 516.151 Granting a request for addition
to the index.

(a) FDA will grant the request for
addition of a new animal drug to the
index if none of the reasons described
in § 516.149 for denying such a request
applies.
(b) When a request for addition of a
new animal drug to the index is granted,
FDA will notify the requestor in
accordance with § 516.153.
§ 516.153 Notification of decision
regarding index listing.

(a) Within 180 days after the filing of
a request for addition of a new animal
drug to the index, FDA shall grant or
deny the request and notify the
requestor of FDA’s decision in writing.
(b) If FDA denies the request for
addition of a new animal drug to the
index, FDA shall provide due notice
and an opportunity for an informal
conference as described in § 516.123. A
decision of FDA to deny a request to
index a new animal drug following an
informal conference shall constitute
final agency action subject to judicial
review.
§ 516.155

Labeling of indexed drugs.

(a) The labeling of an indexed drug
that is found to be eligible for indexing
under § 516.129(c)(7)(i) shall state,
prominently and conspicuously: ‘‘NOT
APPROVED BY FDA.—Legally marketed
as an FDA indexed product. Extra-label
use is prohibited.’’ ‘‘This product is not
to be used in animals intended for use
as food for humans or other animals.’’
(b) The labeling of an indexed drug
that was found to be eligible for

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Federal Register / Vol. 71, No. 162 / Tuesday, August 22, 2006 / Proposed Rules
indexing for use in an early, non-food
life stage of a food-producing minor
species animal, under § 516.129(c)(7)(ii),
shall state, prominently and
conspicuously: ‘‘NOT APPROVED BY
FDA.—Legally marketed as an FDA
indexed product. Extra-label use is
prohibited.’’
(c) The labeling of an indexed drug
shall contain such other information as
may be prescribed in the index listing.
§ 516.157 Publication of the index and
content of an index listing.

(a) FDA will make the list of indexed
drugs available through the FDA Web
site. A printed copy can be obtained by
writing to the FDA Freedom of
Information Staff or by visiting the FDA
Freedom of Information Public Reading
Room.
(b) The list will contain the following
information for each indexed drug:
(1) The name and address of the
person who holds the index listing;
(2) The name of the drug and the
intended use and conditions of use for
which it is indexed;
(3) Product labeling; and
(4) Conditions and any limitations
that FDA deems necessary regarding use
of the drug.

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§ 516.161

Modifications to indexed drugs.

(a) After a drug is listed in the index,
certain modifications to the index
listing may be requested. Any
modification of an index listing may not
cause an indexed drug to be a different
drug (or different combination of drugs)
or a different dosage form. If such
modification is requested, FDA will
notify the holder that a new index
listing is required for the new drug or
dosage form.
(b) Modifications to the indexed drug
will fall under one of three categories
and must be submitted as follows:
(1) Urgent changes. (i) The following
modifications to an indexed drug or its
labeling should be made as soon as
possible and a request to modify the
indexed drug should be concurrently
submitted:
(A) The addition to package labeling,
promotional labeling, or prescription
drug advertising of additional warning,
contraindication, side effect, or
cautionary information.
(B) The deletion from package
labeling, promotional labeling, and drug
advertising of false, misleading, or
unsupported indications for use or
claims for effectiveness.
(C) Changes in manufacturing
methods or controls required to correct
product or manufacturing defects that
may result in serious adverse drug
events.

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(ii) The modifications described in
paragraph (b)(1)(i) of this section must
be submitted to the Director, Office of
Minor Use and Minor Species Animal
Drug Development in the form of a
request for modification of an indexed
drug, and must contain sufficient
information to permit FDA to determine
the need for the modification and
whether the modification appropriately
addresses the need.
(iii) FDA will take no action against
an indexed drug or index holder solely
because modifications of the kinds
described in paragraph (b)(1)(i) of this
section are placed into effect by the
holder prior to receipt of a written
notice granting the request if all the
following conditions are met:
(A) A request to modify the indexed
drug providing a full explanation of the
basis for the modifications has been
submitted, plainly marked on the
mailing cover and on the request as
follows: ‘‘Special indexing request—
modifications being effected;’’
(B) The holder specifically informs
FDA of the date on which such
modifications are to be effected and
submits two printed copies of any
revised labeling to be placed in use, and
(C) All promotional labeling and all
drug advertising are promptly revised
consistent with modifications made in
the labeling on or within the indexed
drug package.
(2) Significant changes. (i) The
following modifications to an indexed
drug or its labeling may be made only
after a request has been submitted to
and subsequently granted by FDA:
(A) Addition of an intended use.
(B) Addition of a species.
(C) Addition or alteration of an active
ingredient.
(D) Alteration of the concentration of
an active ingredient.
(E) Alteration of dose or dosage
regimen.
(F) Alteration of prescription or overthe-counter status.
(ii) Each modification described in
paragraph (b)(2)(i) of this section must
go through the same review process as
an original index listing and is subject
to the same standards for review.
(iii) Each submission of a request for
a modification described in paragraph
(b)(2)(i) of this section should contain
only one type of modification unless
one modification is actually
necessitated by another, such as a
modification of dose necessitated by a
modification of the concentration of an
active ingredient. Submissions relating
to addition of an intended use for an
existing species or addition of a species
should be submitted separately, but
each such submission may include

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multiple additional intended uses and/
or multiple additional species.
(3) Minor changes. All modifications
other than those described in
paragraphs (b)(1) and (b)(2) of this
section including, but not limited to,
formulation, labeling, and
manufacturing methods and controls (at
the same level of detail that these were
described in the request for
determination of eligibility for indexing)
must be submitted as part of the annual
indexed drug experience report or as
otherwise required by § 516.165.
(c) When changes affect the index
listing, it will be updated accordingly.
§ 516.163
file.

Change in ownership of an index

(a) A holder may transfer ownership
of a drug’s index file to another person.
(1) The former owner shall submit in
writing to FDA a statement that all
rights in the index file have been
transferred, giving the name and address
of the new owner and the date of the
transfer. The former owner shall also
certify that a complete copy of the
following, to the extent that they exist
at the time of the transfer of ownership,
has been provided to the new owner:
(i) The request for determination of
eligibility;
(ii) The request for addition to the
index;
(iii) Any modifications to the index
listing;
(iv) Any records and reports under
§ 516.165; and
(v) All correspondence with FDA
relevant to the indexed drug and its
index listing.
(2) The new owner shall submit the
following information in writing to
FDA:
(i) The date that the change in
ownership is effective;
(ii) A statement that the new owner
has a complete copy of all documents
listed in paragraph (a)(1) of this section
to the extent that they exist at the time
of the transfer of ownership;
(iii) A statement that the new owner
understands and accepts the
responsibilities of a holder of an
indexed drug;
(iv) The name and address of a new
primary contact person or permanentresident U.S. agent; and
(v) A list of labeling changes
associated with the change of ownership
(e.g., a new trade name) as draft
labeling, with complete final printed
labeling to be submitted in the indexed
drug annual report in accordance with
§§ 516.161 and 516.165.
(b) Upon receiving the necessary
information to support a change of
ownership of a drug’s index file, FDA

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will update its publicly-available listing
in accordance with § 516.157.

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§ 516.165

Records and reports.

(a) Scope and purpose. (1) The
recordkeeping and reporting
requirements of this section apply to all
holders of indexed drugs, including
indexed drugs intended for use in
medicated feeds.
(2) A holder is not required to report
information under this section if the
holder has reported the same
information under § 514.80 of this
chapter.
(3) The records and reports referred to
in this section are in addition to those
required by the current good
manufacturing practice regulations in
parts 211, 225, and 226 of this chapter.
(4) FDA will review the records and
reports required in this section to
determine, or facilitate a determination,
whether there may be grounds for
removing a drug from the index under
section 572(f) of the act.
(b) Recordkeeping requirements. (1)
Each holder of an indexed drug must
establish and maintain complete files
containing full records of all
information pertinent to the safety or
effectiveness of the indexed drug. Such
records must include information from
foreign and domestic sources.
(2) The holder must, upon request
from any authorized FDA officer or
employee, at all reasonable times,
permit such officer or employee to have
access to copy and to verify all such
records.
(c) Reporting requirements. (1) Threeday indexed drug field alert report. The
holder must inform the appropriate FDA
District Office or local FDA resident
post of any product or manufacturing
defects that may result in serious
adverse drug events within 3 working
days of first becoming aware that such
a defect may exist. The holder may
initially provide this information by
telephone or other electronic
communication means, with prompt
written follow up. The mailing cover
must be plainly marked ‘‘3–Day Indexed
Drug Field Alert Report.’’
(2) Fifteen-day indexed drug alert
report. The holder must submit a report
on each serious, unexpected adverse
drug event, regardless of the source of
the information. The holder must
submit the report within 15 working
days of first receiving the information.
The mailing cover must be plainly
marked ‘‘15-Day Indexed Drug Alert
Report.’’
(3) Annual indexed drug experience
report. The holder must submit this
report every year on the anniversary
date of the letter granting the request for

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addition of the new animal drug to the
index, or within 60 days thereafter. The
report must contain data and
information for the full reporting period.
Any previously submitted information
contained in the report must be
identified as such. The holder may ask
FDA to change the date of submission
and, after approval of such request, file
such reports by the new filing date. The
report must contain the following:
(i) The number of distributed units of
each size, strength, or potency (e.g.,
100,000 bottles of 100 5-milligram
tablets; 50,000 10-milliliter vials of 5percent solution) distributed during the
reporting period. This information must
be presented in two categories:
quantities distributed domestically and
quantities exported. This information
must include any distributor-labeled
product.
(ii) If the labeling has changed since
the last report, include a summary of
those changes and the holder’s and
distributor’s current package labeling,
including any package inserts. For largesize package labeling or large shipping
cartons, submit a representative copy
(e.g., a photocopy of pertinent areas of
large feed bags). If the labeling has not
changed since the last report, include a
statement of such fact.
(iii) A summary of any changes made
during the reporting period in the
methods used in, and facilities and
controls used for, manufacture,
processing, and packing. This
information must be presented in the
same level of detail that it was
presented in the request for
determination of eligibility for indexing.
Do not include changes that have
already been submitted under § 516.161.
(iv) Nonclinical laboratory studies
and clinical data not previously
reported under this section.
(v) Adverse drug experiences not
previously reported under this section.
(vi) Any other information pertinent
to safety or effectiveness of the indexed
drug not previously reported under this
section.
(4) Distributor’s statement. At the time
of initial distribution of an indexed drug
by a distributor, the holder must submit
a report containing the following:
(i) The distributor’s current product
labeling. This must be identical to that
in the index listing except for a different
and suitable proprietary name (if used)
and the name and address of the
distributor. The name and address of the
distributor must be preceded by an
appropriate qualifying phrase such as
‘‘manufactured for’’ or ‘‘distributed by.’’
(ii) A signed statement by the
distributor stating:

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(A) The category of the distributor’s
operations (e.g., wholesale or retail);
(B) That the distributor will distribute
the drug only under the indexed drug
labeling;
(C) That the distributor will promote
the indexed drug only for use under the
conditions stated in the index listing;
and
(D) If the indexed drug is a
prescription new animal drug, that the
distributor is regularly and lawfully
engaged in the distribution or
dispensing of prescription products.
(5) Other reporting. FDA may by order
require that a holder submit information
in addition to that required by this
section or that the holder submit the
same information but at different times
or reporting periods.
§ 516.167

Removal from the index.

(a) After due notice to the holder of
the index listing and an opportunity for
an informal conference as described in
§ 516.123, FDA shall remove a new
animal drug from the index if FDA finds
that:
(1) The same drug in the same dosage
form for the same intended use has been
approved or conditionally approved;
(2) The expert panel failed to meet the
requirements in § 516.141;
(3) On the basis of new information
before FDA, evaluated together with the
evidence available to FDA when the
new animal drug was listed in the
index, the benefits of using the new
animal drug for the indexed use do not
outweigh its risks to the target animal,
taking into account the harm caused by
the absence of an approved or
conditionally-approved new animal
drug for the minor species in question;
(4) Any of the conditions in
§ 516.133(a)(2), (5), or (6) are present;
(5) The manufacture of the new
animal drug is not in accordance with
current good manufacturing practices;
(6) The labeling, distribution, or
promotion of the new animal drug is not
in accordance with the index listing;
(7) The conditions and limitations of
use associated with the index listing
have not been followed; or
(8) Any information used to support
the request for addition to the index
contains any untrue statement of
material fact.
(b) The agency may partially remove
an indexing listing if, in the opinion of
the agency, such partial removal would
satisfactorily resolve a safety or
effectiveness issue otherwise warranting
removal of the listing under section
572(f)(1)(B) of the act.
(c) FDA may immediately suspend a
new animal drug from the index if FDA
determines that there is a reasonable

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probability that the use of the drug
would present a risk to the health of
humans or other animals. The agency
will subsequently provide due notice
and an opportunity for an informal
conference as described in § 516.123.
(d) A decision of FDA to remove a
new animal drug from the index
following an informal conference, if
any, shall constitute final agency action
subject to judicial review.

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§ 516.171 Confidentiality of data and
information in an index file.

(a) For purposes of this section, the
index file includes all data and
information submitted to or
incorporated by reference into the index
file, such as data and information
related to investigational use
exemptions under § 516.125, requests
for determination of eligibility for
indexing, requests for addition to the
index, modifications to indexed drugs,
changes in ownership, reports
submitted under § 516.165, and master
files. The availability for public
disclosure of any record in the index file
shall be handled in accordance with the
provisions of this section.
(b) The existence of an index file will
not be disclosed by FDA before an index
listing has been made public by FDA,
unless it has previously been publicly
disclosed or acknowledged by the
requestor.
(c) If the existence of an index file has
not been publicly disclosed or
acknowledged, no data or information
in the index file are available for public
disclosure.
(d) If the existence of an index file has
been publicly disclosed or
acknowledged before an index listing
has been made public by FDA, no data
or information contained in the file will
be available for public disclosure before
such index listing is made public, but
the agency may, at its discretion,
disclose a brief summary of such
selected portions of the safety and
effectiveness data as are appropriate for
public consideration of a specific
pending issue, e.g., at an open session
of a Food and Drug Administration
advisory committee or pursuant to an
exchange of important regulatory
information with a foreign government.
(e) After FDA sends a written notice
to the requestor granting a request for
addition to the index, the following data
and information in the index file are
available for public disclosure unless
extraordinary circumstances are shown:
(1) All safety and effectiveness data
and information previously disclosed to
the public, as defined in § 20.81 of this
chapter.

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(2) A summary or summaries of the
safety and effectiveness data and
information submitted with or
incorporated by reference in the index
file. Such summaries do not constitute
the full information described under
section 572(c) and (d) of the act on
which the safety or effectiveness of the
drug may be determined. Such
summaries will be based on the draft
Freedom of Information summary
submitted under § 516.145, which will
be reviewed and, where appropriate,
revised by FDA.
(3) A protocol for a test or study,
unless it is shown to fall within the
exemption established for trade secrets
and confidential commercial
information in § 20.61 of this chapter.
(4) Adverse reaction reports, product
experience reports, consumer
complaints, and other similar data and
information, after deletion of the
following:
(i) Names and any information that
would identify the person using the
product.
(ii) Names and any information that
would identify any third party involved
with the report, such as a veterinarian.
(5) A list of all active ingredients and
any inactive ingredients previously
disclosed to the public as defined in
§ 20.81 of this chapter.
(6) An assay method or other
analytical method, unless it serves no
regulatory or compliance purpose and is
shown to fall within the exemption
established in § 20.61 of this chapter.
(7) All correspondence and written
summaries of oral discussions relating
to the index file, in accordance with the
provisions of part 20 of this chapter.
(f) The following data and information
in an index file are not available for
public disclosure unless they have been
previously disclosed to the public as
defined in § 20.81 of this chapter or they
relate to a product or ingredient that has
been abandoned and they no longer
represent a trade secret or confidential
commercial or financial information as
defined in § 20.61 of this chapter:
(1) Manufacturing methods or
processes, including quality control
procedures.
(2) Production, sales, distribution, and
similar data and information, except
that any compilation of such data and
information aggregated and prepared in
a way that does not reveal data or
information which is not available for
public disclosure under this provision is
available for public disclosure.
(3) Quantitative or semiquantitative
formulas.
(g) Subject to the disclosure
provisions of this section, the agency
shall regard the contents of an index file

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48863

as confidential information unless
specifically notified in writing by the
holder of the right to disclose, to
reference, or otherwise utilize such
information on behalf of another named
person.
(h) For purposes of this regulation,
safety and effectiveness data include all
studies and tests of an animal drug on
animals and all studies and tests on the
animal drug for identity, stability,
purity, potency, and bioavailability.
(i) Safety and effectiveness data and
information that have not been
previously disclosed to the public are
available for public disclosure at the
time any of the following events occurs
unless extraordinary circumstances are
shown:
(1) No work is being or will be
undertaken to have the drug indexed in
accordance with the request.
(2) A final determination is made that
the drug cannot be indexed and all legal
appeals have been exhausted.
(3) The drug has been removed from
the index and all legal appeals have
been exhausted.
(4) A final determination has been
made that the animal drug is not a new
animal drug.
PART 558—NEW ANIMAL DRUGS FOR
USE IN ANIMAL FEEDS
33. The authority citation for 21 CFR
part 558 continues to read as follows:
Authority: 21 U.S.C. 360b, 371.

34. Amend § 558.3 by revising the last
sentence of paragraph (b)(2) and
revising paragraphs (b)(5), (b)(6), and
(b)(7) to read as follows:
§ 558.3 Definitions and general
considerations applicable to this part.

*

*
*
*
*
(b) * * *
(2) * * * The manufacture of a Type
A medicated article requires an
application approved under § 514.105 of
this chapter or an index listing granted
under § 516.151 of this chapter.
*
*
*
*
*
(5) A Type B or Type C medicated
feed manufactured from a drug
component (bulk or ‘‘drum-run’’ (dried
crude fermentation product)) requires
an application approved under
§ 514.105 of this chapter or an index
listing granted under § 516.151 of this
chapter.
(6) A ‘‘veterinary feed directive (VFD)
drug’’ is a new animal drug approved
under section 512(b) or listed in the
index under section 572 of the Federal
Food, Drug, and Cosmetic Act (the act)
for use in or on animal feed. Use of a
VFD drug must be under the
professional supervision of a licensed
veterinarian.

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(7) A ‘‘veterinary feed directive’’ is a
written statement issued by a licensed
veterinarian in the course of the
veterinarian’s professional practice that
orders the use of a veterinary feed
directive (VFD) drug in or on an animal
feed. This written statement authorizes
the client (the owner of the animal or
animals or other caretaker) to obtain and
use the VFD drug in or on an animal
feed to treat the client’s animals only in
accordance with the directions for use
approved or indexed by the Food and
Drug Administration (FDA). A
veterinarian may issue a VFD only if a
valid veterinarian-client-patient
relationship exists, as defined in
§ 530.3(i) of this chapter.
*
*
*
*
*
35. Amend § 558.5 by revising
paragraphs (c) and (d) to read as follows:
§ 558.5
feed.

Requirements for liquid medicated

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*

*
*
*
*
(c) What is required for new animal
drugs intended for use in liquid feed?
Any new animal drug intended for use
in liquid feed must be approved for
such use under section 512 of the act or
index listed under section 572 of the
act. Such approvals under section 512 of
the act must be:
(1) An original NADA,
(2) A supplemental NADA, or
(3) An abbreviated NADA.
(d) What are the approval
requirements under section 512 of the
act for new animal drugs intended for
use in liquid feed? An approval under
section 512 of the act for a new animal
drug intended for use in liquid feed
must contain the following information:
(1) Data, or a reference to data in a
master file (MF), that shows the relevant
ranges of conditions under which the
drug will be chemically stable in liquid
feed under field use conditions; and
(2) Data, or a reference to data in an
MF, that shows that the drug is
physically stable in liquid feed under
field conditions; or
(3) Feed labeling with recirculation or
agitation directions as follows:
(i) For liquid feeds stored in
recirculating tank systems: Recirculate
immediately prior to use for not less
than 10 minutes, moving not less than
1 percent of the tank contents per
minute from the bottom of the tank to
the top. Recirculate daily as described
even when not used.
(ii) For liquid feeds stored in
mechanical, air, or other agitation-type
tank systems: Agitate immediately prior
to use for not less than 10 minutes,
creating a turbulence at the bottom of

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the tank that is visible at the top. Agitate
daily as described even when not used.
*
*
*
*
*
36. Amend § 558.6 by revising
paragraphs (a)(4)(iv) and (a)(6) to read as
follows:
§ 558.6

Office of the Secretary
32 CFR Part 199
[DOD–2006–OS–0091]

Veterinary feed directive drugs.

(a) * * *
(4) * * *
(iv) Approved or index listed
indications for use.
*
*
*
*
*
(6) You must issue a VFD only for the
approved or indexed conditions and
indications for use of the VFD drug.
*
*
*
*
*
PART 589—SUBSTANCES
PROHIBITED FROM USE IN ANIMAL
FOOD OR FEED
37. The authority citation for 21 CFR
part 589 continues to read as follows:
Authority: 21 U.S.C. 321, 342, 343, 348,
371.

38. Revise § 589.1000 to read as
follows:
§ 589.1000

Gentian violet.

The Food and Drug Administration
has determined that gentian violet has
not been shown by adequate scientific
data to be safe for use in animal feed.
Use of gentian violet in animal feed
causes the feed to be adulterated and in
violation of the Federal Food, Drug, and
Cosmetic Act (the act), in the absence of
a regulation providing for its safe use as
a food additive under section 409 of the
act, unless it is subject to an effective
notice of claimed investigational
exemption for a food additive under
§ 570.17 of this chapter, or unless the
substance is intended for use as a new
animal drug and is subject to an
approved application under section 512
of the act, or an index listing under
section 572 of the act, or an effective
notice of claimed investigational
exemption for a new animal drug under
part 511 of this chapter or § 516.125 of
this chapter.
Dated: June 15, 2006.
Jeffrey Shuren,
Assistant Commissioner for Policy.
[FR Doc. 06–7070 Filed 8–21–06; 8:45 am]
BILLING CODE 4160–01–S

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DEPARTMENT OF DEFENSE

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RIN 0720–AB00

TRICARE; Reserve and Guard Family
Member Benefits
ACTION:

Proposed rule.

SUMMARY: This proposed rule would
implement sections 704 and 705 of the
Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005.
These provisions would apply to
eligible family members who become
eligible for TRICARE as a result of their
Reserve Component (RC) sponsor
(including those with delayed effective
date orders up to 90 days) being called
or ordered to active duty for more than
30 days in support of a federal/
contingency operation and choose to
participate in TRICARE Standard or
Extra, rather than enroll in TRICARE
Prime. The first provision would
provide the Secretary the authority to
waive the annual TRICARE Standard (or
Extra) deductible, which is set by law
(10 U.S.C. 1079(b)) at $150 per
individual and $300 per family ($50/
$150 for families of members in pay
grades E–4 and below). The second
provision would provide the Secretary
the authority to increase TRICARE
payments up to 115 percent of the
TRICARE maximum allowable charge,
less the applicable patient cost share if
not previously waived under the first
provision, for covered outpatient health
services received from a provider that
does not participate (accept assignment)
with TRICARE. These provisions would
help ensure timely access to health care
and maintain clinically appropriate
continuity of health care to family
members of Reservists and Guardsmen
activated in support of a federal/
contingency operation; limit the out-ofpocket health care expenses for those
family members; and remove potential
barriers to health care access by Guard
and Reserve families.
DATES: Written comments received at
the address indicated below by October
23, 2006.
ADDRESSES: You may submit comments,
identified by docket number and or RIN
number and title, by any of the
following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.

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