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###### Department of Health and Human Services

###### Food and Drug Administration

          - [Docket No. FDA-2015-N-0126]

# AGENCY:

Food and Drug Administration, HHS.

# ACTION:

Notice.

# SUMMARY:

The Food and Drug Administration (FDA) is announcing the issuance of three Emergency Use Authorizations (EUAs) (the Authorizations), one of which was amended after initial issuance, for three in vitro diagnostic devices for detection of the Ebola virus in response to the 2014 Ebola virus outbreak in West Africa. FDA is issuing these Authorizations under the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as requested by BioFire Defense, LLC (BioFire Defense) and altona Diagnostics GmbH (altona). The Authorizations contain, among other things, conditions on the emergency use of the authorized in vitro diagnostic devices. The Authorizations follow the September 22, 2006, determination by then-Secretary of the Department of Homeland Security (DHS), Michael Chertoff, that the Ebola virus presents a material threat against the U.S. population sufficient to affect national security. On the basis of such determination, the Secretary of Health and Human Services (HHS) declared on August 5, 2014, that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection of Ebola virus subject to the terms of any authorization issued under the FD&C Act. The Authorizations, which include an explanation of the reasons for issuance, are reprinted in this document.

# DATES:

The Authorizations for the BioFire FilmArray NGDS BT-E Assay and BioFire FilmArray Biothreat-E test are effective as of October 25, 2014. The Authorization for the altona RealStar® Ebolavirus RT-PCR Kit 1.0, which was amended and reissued on November 26, 2014, is effective as of November 10, 2014.

# ADDRESSES:

                        Submit written requests for single copies of the EUAs to the Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4338, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the Authorizations may be sent. See the                         **SUPPLEMENTARY INFORMATION**      ( print page 6973)                            section for electronic access to the Authorizations.                    

# FOR FURTHER INFORMATION CONTACT:

Luciana Borio, Assistant Commissioner for Counterterrorism Policy, Office of Counterterrorism and Emerging Threats, and Acting Deputy Chief Scientist, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4340, Silver Spring, MD 20993-0002, 301-796-8510 (this is not a toll free number).

# SUPPLEMENTARY INFORMATION:

## I. Background

Section 564 of the FD&C Act (21 U.S.C. 360bbb-3) as amended by the Project BioShield Act of 2004 (Pub. L. 108-276) and the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (Pub. L. 113-5) allows FDA to strengthen the public health protections against biological, chemical, nuclear, and radiological agents. Among other things, section 564 of the FD&C Act allows FDA to authorize the use of an unapproved medical product or an unapproved use of an approved medical product in certain situations. With this EUA authority, FDA can help assure that medical countermeasures may be used in emergencies to diagnose, treat, or prevent serious or life-threatening diseases or conditions caused by biological, chemical, nuclear, or radiological agents when there are no adequate, approved, and available alternatives.

Section 564(b)(1) of the FD&C Act provides that, before an EUA may be issued, the Secretary of HHS must declare that circumstances exist justifying the authorization based on one of the following grounds: (1) A determination by the Secretary of DHS that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a biological, chemical, radiological, or nuclear agent or agents; (2) a determination by the Secretary of the Department of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to U.S. military forces of attack with a biological, chemical, radiological, or nuclear agent or agents; (3) a determination by the Secretary of HHS that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of U.S. citizens living abroad, and that involves a biological, chemical, radiological, or nuclear agent or agents, or a disease or condition that may be attributable to such agent or agents; or (4) the identification of a material threat by the Secretary of DHS under section 319F-2 of the Public Health Service (PHS) Act (42 U.S.C. 247d-6b) sufficient to affect national security or the health and security of U.S. citizens living abroad.

                    Once the Secretary of HHS has declared that circumstances exist justifying an authorization under section 564 of the FD&C Act, FDA may authorize the emergency use of a drug, device, or biological product if the Agency concludes that the statutory criteria are satisfied. Under section 564(h)(1) of the FD&C Act, FDA is required to publish in the                     **Federal Register**                     a notice of each authorization, and each termination or revocation of an authorization, and an explanation of the reasons for the action. Section 564 of the FD&C Act permits FDA to authorize the introduction into interstate commerce of a drug, device, or biological product intended for use when the Secretary of HHS has declared that circumstances exist justifying the authorization of emergency use. Products appropriate for emergency use may include products and uses that are not approved, cleared, or licensed under sections 505, 510(k), or 515 of the FD&C Act (21 U.S.C. 355, 360(k), and 360e) or section 351 of the PHS Act (42 U.S.C. 262). FDA may issue an EUA only if, after consultation with the HHS Assistant Secretary for Preparedness and Response, the Director of the National Institutes of Health, and the Director of the CDC (to the extent feasible and appropriate given the applicable circumstances), FDA [1]                                          concludes: (1) That an agent referred to in a declaration of emergency or threat can cause a serious or life-threatening disease or condition; (2) that, based on the totality of scientific evidence available to FDA, including data from adequate and well-controlled clinical trials, if available, it is reasonable to believe that: (A) The product may be effective in diagnosing, treating, or preventing (i) such disease or condition; or (ii) a serious or life-threatening disease or condition caused by a product authorized under section 564, approved or cleared under the FD&C Act, or licensed under section 351 of the PHS Act, for diagnosing, treating, or preventing such a disease or condition caused by such an agent; and (B) the known and potential benefits of the product, when used to diagnose, prevent, or treat such disease or condition, outweigh the known and potential risks of the product, taking into consideration the material threat posed by the agent or agents identified in a declaration under section 564(b)(1)(D) of the FD&C Act, if applicable; (3) that there is no adequate, approved, and available alternative to the product for diagnosing, preventing, or treating such disease or condition; and (4) that such other criteria as may be prescribed by regulation are satisfied.                

No other criteria for issuance have been prescribed by regulation under section 564(c)(4) of the FD&C Act. Because the statute is self-executing, regulations or guidance are not required for FDA to implement the EUA authority.

## II. EUA Requests for In Vitro Diagnostic Devices for Detection of the Ebola Virus

                    On September 22, 2006, then-Secretary of DHS, Michael Chertoff, determined that the Ebola virus presents a material threat against the U.S. population sufficient to affect national security.[2]                                          On August 5, 2014, under section 564(b)(1) of the FD&C Act, and on the basis of such determination, the Secretary of HHS declared that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection of Ebola virus, subject to the terms of any authorization issued under section 564 of the FD&C Act. Notice of the declaration of the Secretary was published in the                     **Federal Register**                     on August 12, 2014 (79 FR 47141). On October 22, 2014, BioFire Defense submitted complete EUA requests for both the BioFire FilmArray NGDS BT-E Assay and for the BioFire FilmArray Biothreat-E test, and on October 25, 2014, FDA issued, an EUA for the BioFire FilmArray NGDS BT-E Assay and an EUA for the BioFire FilmArray Biothreat-E test, subject to the terms of these authorizations. On October 29, 2014, altona submitted a complete EUA request for the RealStar® Ebolavirus RT-PCR Kit 1.0, and on November 10, 2014, FDA issued, an EUA for the RealStar® Ebolavirus RT-PCR Kit 1.0, subject to the terms of this authorization. On November 26, 2014, in response to a request from altona on November 18, 2014, FDA amended and reissued in its entirety the EUA to allow, in addition to altona, distributors that are authorized by altona to distribute the                           ( print page 6974)                        RealStar® Ebolavirus RT-PCR Kit 1.0 with certain conditions applicable to such authorized distributor(s), and to allow the use of the assay under the EUA at certain non-U.S. laboratories, with certain conditions. The EUA, as amended and reissued on November 26, 2014, which includes an explanation for its reissuance, is reprinted in this document. Because the November 26, 2014, Authorization for altona's Ebola assay replaces in its entirety the EUA issued on November 10, 2014, the original Authorization issued on November 10, 2014, is not reprinted in this document.                

## III. Electronic Access

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

## IV. The Authorizations

Having concluded that the criteria for issuance of the Authorizations under section 564(c) of the FD&C Act are met, FDA has authorized the emergency use of certain in vitro diagnostic devices. The Authorization for the BioFire FilmArray NGDS BT-E Assay issued on October 25, 2014, in its entirety (not including the authorized versions of the fact sheets and other written materials) follows and provides an explanation of the reasons for its issuance, as required by section 564(h)(1) of the FD&C Act:
      ( print page 6975)          ( print page 6976)          ( print page 6977)          ( print page 6978)          ( print page 6979)          ( print page 6980)          ( print page 6981)    
The Authorization for the BioFire FilmArray Biothreat-E test issued October 25, 2014, in its entirety (not including the authorized versions of the fact sheets and other written materials) follows and provides an explanation of the reasons for its issuance, as required by section 564(h)(1) of the FD&C Act:
      ( print page 6982)          ( print page 6983)          ( print page 6984)          ( print page 6985)          ( print page 6986)          ( print page 6987)          ( print page 6988)    
The Authorization for the RealStar® Ebolavirus RT-PCR Kit 1.0, originally issued on November 10, 2014, as amended and reissued in its entirety on November 26, 2014, (not including the authorized versions of the fact sheets and other written materials) follows and provides an explanation of the reasons for its issuance, as required by section 564(h)(1) of the FD&C Act, and its amendment:
      ( print page 6989)          ( print page 6990)          ( print page 6991)          ( print page 6992)          ( print page 6993)          ( print page 6994)          ( print page 6995)          ( print page 6996)    

Dated: February 2, 2015.

Leslie Kux,

Associate Commissioner for Policy.

# Footnotes

1.                             The Secretary of HHS has delegated the authority to issue an EUA under section 564 of the FD&C Act to the Commissioner of Food and Drugs.                    
        Back to Citation      

2.                             Under to section 564(b)(1) of the FD&C Act, the HHS Secretary's declaration that supports EUA issuance must be based on one of four determinations, including the identification by the Secretary of DHS of a material threat under to section 319F-2 of the PHS Act sufficient to affect national security or the health and security of U.S. citizens living abroad (section 564(b)(1)(D) of the FD&C Act).                    
        Back to Citation      

BILLING CODE 4164-01-P

[FR Doc. 2015-02467 Filed 2-6-15; 8:45 am]

BILLING CODE 4164-01-C