[Printable PDF]



[Federal Register: January 31, 2003 (Volume 68, Number 21)]

[Rules and Regulations]               

[Page 4912-4913]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr31ja03-9]                         





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DEPARTMENT OF HEALTH AND HUMAN SERVICES





Food and Drug Administration





21 CFR Part 203





[Docket No. 92N-0297]

RIN 0905-AC81





 

Prescription Drug Marketing Act of 1987; Prescription Drug 

Amendments of 1992; Policies, Requirements, and Administrative 

Procedures; Delay of Effective Date





AGENCY: Food and Drug Administration, HHS.





ACTION: Final rule; delay of effective date.





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SUMMARY: The Food and Drug Administration (FDA) is further delaying, 

until April 1, 2004, the effective date of certain requirements of a 

final rule published in the Federal Register of December 3, 1999 (64 FR 

67720). In the Federal Register of May 3, 2000 (65 FR 25639), the 

agency delayed until October 1, 2001, the effective date of certain 

requirements in the final rule relating to wholesale distribution of 

prescription drugs by distributors that are not authorized distributors 

of record, and distribution of blood derivatives by entities that meet 

the definition of a ``health care entity'' in the final rule. The 

agency further delayed the effective date of these requirements in two 

subsequent Federal Register documents. Most recently, in the Federal 

Register of February 13, 2002 (67 FR 6645), FDA delayed the effective 

date until April 1, 2003. This action further delays the effective date 

of these requirements until April 1, 2004. The final rule implements 

the Prescription Drug Marketing Act of 1987 (PDMA), as modified by the 

Prescription Drug Amendments of 1992 (PDA), and the Food and Drug 

Administration Modernization Act of 1997 (the Modernization Act). The 

agency is taking this action to address concerns about the requirements 

raised by affected parties.

    To the extent that 5 U.S.C. 553 applies to this action, it is 

exempt from notice and comment because it constitutes a rule of 

procedure under 5 U.S.C. 553(b)(3)(A). Alternatively, the agency's 

implementation of this action without opportunity for public comment, 

effective immediately upon publication today in the Federal Register, 

is based on the good cause exceptions in 5 U.S.C. 553(b)(3)(B) and 

(d)(3). Seeking public comment is impracticable, unnecessary, and 

contrary to the public interest. As explained in the SUPPLEMENTARY 

INFORMATION section, FDA has prepared a report for Congress and 

concluded that although FDA can address some of industry's concerns 

with the PDMA regulation through regulatory changes, other concerns 

would have to be addressed by Congress through legislative action. The 

further delay is necessary to give Congress additional time to consider 

the information and conclusions contained in the agency's report, and 

to determine if legislative action is appropriate. The further delay 

will also give the agency additional time to consider whether 

regulatory changes are appropriate and, if so, to initiate such 

changes.





DATES: The effective date for Sec. Sec.  203.3(u) and 203.50, and the 

applicability of Sec.  203.3(q) to wholesale distribution of blood 

derivatives by health care entities, added at 64 FR 67720, December 3, 

1999, is delayed until April 1, 2004. Submit written or electronic 

comments by April 1, 2003.





[[Page 4913]]









ADDRESSES: Submit written comments to the Dockets Management Branch 

(HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, 

Rockville, MD 20857. All comments should be identified with the docket 

number found in brackets in the heading of this document. Submit 

electronic comments to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov/dockets/ecomments.





FOR FURTHER INFORMATION CONTACT: Aileen H. Ciampa, Center for Drug 

Evaluation and Research (HFD-7), Food and Drug Administration, 5600 

Fishers Lane, Rockville, MD 20857, 301-594-2041.





SUPPLEMENTARY INFORMATION: PDMA (Public Law 100-293) was enacted on 

April 22, 1988, and was modified by the PDA (Public Law 102-353, 106 

Stat. 941) on August 26, 1992. The PDMA, as modified by the PDA, 

amended sections 301, 303, 503, and 801 of the Federal Food, Drug, and 

Cosmetic Act (the act) (21 U.S.C. 331, 333, 353, and 381) to, among 

other things, establish requirements for the wholesale distribution of 

prescription drugs and for the distribution of blood derived 

prescription drug products by health care entities.

    On December 3, 1999, the agency published final regulations in part 

203 (21 CFR part 203) implementing PDMA (64 FR 67720). After 

publication of the final rule, the agency received communications from 

industry, industry trade associations, and members of Congress 

objecting to the provisions in Sec. Sec.  203.3(u) and 203.50. On March 

29, 2000, the agency met with representatives from the wholesale drug 

industry and industry associations to discuss their concerns. In 

addition, FDA received a petition requesting that the relevant 

provisions of the final rule be stayed until October 1, 2001. The 

agency also received a petition from the Small Business Administration 

requesting that FDA reconsider the final rule and suspend its effective 

date based on the severe economic impact it would have on more than 

4,000 small businesses.

    In addition to the communications regarding wholesale distribution 

by unauthorized distributors, the agency received several letters on, 

and held several meetings to discuss, the implications of the final 

regulations for blood centers that distribute blood derivative products 

and provide health care to hospitals and patients.

    Based on the concerns expressed by industry, industry associations, 

and Congress about implementing Sec. Sec.  203.3(u) and 203.50 by the 

December 4, 2000, effective date, the agency published a notice in the 

Federal Register of May 3, 2000 (65 FR 25639), delaying the effective 

date for those provisions until October 1, 2001. In addition, the May 

2000 document delayed the applicability of Sec.  203.3(q) to wholesale 

distribution of blood derivatives by health care entities until October 

1, 2001. The May 2000 document also reopened the administrative record 

to give interested persons until July 3, 2000, to submit written 

comments.

    On May 16, 2000, the House Committee on Appropriations (the 

Committee) stated in its report accompanying the Agriculture, Rural 

Development, Food and Drug Administration, and Related Agencies 

Appropriations Bill, 2001 (H. Rept. 106-619) that it supported the 

``recent FDA action to delay the effective date for implementing 

certain requirements of the Prescription Drug Marketing Act until 

October 1, 2001, and reopen the administrative record in order to 

receive additional comments.'' In addition, the Committee stated that 

it ``believes the agency should thoroughly review the potential impact 

of the proposed provisions on the secondary wholesale pharmaceutical 

industry.'' The Committee directed the agency to provide a report to 

the Committee summarizing the comments and issues raised and agency 

plans to address the concerns.

    After issuing the delay of the effective date, the agency announced 

in the Federal Register of September 19, 2000 (65 FR 56480), that a 

public hearing would be held to discuss the requirements at issue. The 

hearing was held on October 27, 2000, and comments were accepted until 

November 20, 2000.

    In the Federal Register of March 1, 2001 (66 FR 12850), the agency 

announced that it was further delaying, until April 1, 2002, the 

effective date of Sec. Sec.  203.3(u) and 203.50, and the applicability 

of Sec.  203.3(q) to wholesale distribution of blood derivatives by 

health care entities. As explained by the agency, the effective date 

was further delayed to give FDA additional time to consider comments 

and testimony received, for FDA to prepare its report to Congress, and, 

if appropriate, for Congress or the agency to make legislative or 

regulatory changes. The report was completed and submitted to Congress 

on June 7, 2001.

    In its report to Congress, the agency concluded that it could 

address some, but not all, of the concerns raised by the secondary 

wholesale industry and the blood industry through regulatory changes. 

However, to make other changes requested by the secondary wholesale 

industry, Congress would have to amend section 503(e) of the act. As a 

result, on February 13, 2002, FDA further delayed the effective date of 

the relevant provisions of the final rule until April 1, 2003, in part 

to give Congress time to consider the information and conclusions 

contained in the agency's report and to determine if legislative action 

was appropriate. Based on a recent petition submitted by affected 

parties, FDA understands that members of Congress are, in fact, 

considering the issues presented in the agency's report. Due to 

competing legislative priorities, however, the issues have not yet been 

resolved. Therefore, to give Congress additional time to determine if 

legislative action is appropriate, the agency is further delaying the 

effective date for Sec. Sec.  203.3(u) and 203.50, and the 

applicability of Sec.  203.3(q) to wholesale distribution of blood 

derivatives by health care entities. The further delay of the effective 

date until April 1, 2004, will also give the agency additional time to 

consider whether regulatory changes are warranted.

    FDA has examined the impacts of this delay of effective date under 

Executive Order 12866. 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; distributive impacts; and 

equity). The agency believes that this action is consistent with the 

regulatory philosophy and principles identified in the Executive order. 

This action will ease the burden on industry by delaying the effect of 

Sec. Sec.  203.3(u) and 203.50, and the applicability of Sec.  203.3(q) 

to wholesale distribution of blood derivatives by health care entities 

while Congress considers taking legislative action. Thus, this action 

is not a significant action as defined by the Executive order.

    This action is being taken under FDA's authority under 21 CFR 

10.35(a). The Commissioner of Food and Drugs finds that this delay of 

the effective date is in the public interest.





    Dated: January 23, 2003.

Margaret M. Dotzel,

Assistant Commissioner for Policy.

[FR Doc. 03-2293 Filed 1-30-03; 8:45 am]



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