Regulation of Carcinogenic Compounds in Food-Producing Animals:

Federal Register: December 20, 2010 (Volume 75, Number 243)

Proposed Rules

Page 79320-79323

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

DOCID:fr20de10-20

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration 21 CFR Part 500

Docket No. FDA-2010-N-0612

Animal Drugs, Feeds, and Related Products; Regulation of

Carcinogenic Compounds in Food-Producing Animals

AGENCY: Food and Drug Administration, HHS.

ACTION: Proposed rule.

SUMMARY: The Food and Drug Administration (FDA) is proposing to amend its regulations regarding compounds of carcinogenic concern used in food-producing animals. Specifically, the Agency is clarifying the definition of ``So'' and revising the definition of

``Sm'' so that it conforms to the clarified definition of

So. Other clarifying and conforming changes are also being made.

DATES: Submit either electronic or written comments on the proposed rule by March 7, 2011. Submit comments on information collection issues under the Paperwork Reduction Act of 1995 by January 19, 2011 (see the

``Paperwork Reduction Act of 1995'' section of this document).

ADDRESSES: You may submit comments, identified by Docket No. FDA-2010-

N-0612, by any of the following methods, except that comments on information collection issues under the Paperwork Reduction Act of 1995 must be submitted to the Office of Regulatory Affairs, Office of

Management and Budget (OMB) (see the ``Paperwork Reduction Act of 1995'' section of this document).

Electronic Submissions

Submit electronic comments in the following way:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

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.

Instructions: All submissions received must include the Agency name and Docket No. and Regulatory Information Number (RIN) (if a RIN number has been assigned) for this rulemaking. All comments received may be posted without change to http://www.regulations.gov, including any personal information provided. For additional information on submitting comments, 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.regulations.gov and insert the docket number, 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.

FOR FURTHER INFORMATION CONTACT: Kevin Greenlees, Center for Veterinary

Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl.,

Rockville, MD 20855, 301-827-6975. e-mail: kevin.greenlees@fda.hhs.gov.

SUPPLEMENTARY INFORMATION:

  1. Background

    The Federal Food, Drug, and Cosmetic Act (the FD&C Act) contains three anticancer, or Delaney, clauses: Sections 409(c)(3)(A), 512(d)(1)(I), and 721(b)(5)(B)(i) (21 U.S.C. 348(c)(3)(A), 360b(d)(1)(I), and 379e(b)(5)(B)(i)), pertaining to food additives, new animal drugs, and color additives, respectively.

    Page 79321

    These clauses prohibit approval of substances that have been shown to induce cancer in man or animals. However, each clause contains an exception, termed the ``Diethylstilbestrol (DES) Proviso,'' that permits administration of such substances to food-producing animals where: (1) The food additive, color additive, or new animal drug will not adversely affect the animal; and (2) no residue of the food additive, color additive, or new animal drug will be found in any edible portion of that animal by a method of examination prescribed or approved by the Secretary of Health and Human Services by regulation.

    The regulations under part 500 (21 CFR part 500), subpart E entitled

    ``Regulation of Carcinogenic Compounds Used in Food-Producing

    Animals,'' implement the DES Proviso. To elaborate on how to determine that there is no residue, and thus demonstrate that the second prong of the DES Proviso has been satisfied, the regulations define several terms, including Soand Sm.

    Sois currently defined as the concentration of the compound of carcinogenic concern in the total diet of test animals that corresponds to a maximum lifetime risk of cancer to the test animals of 1 in 1 million, and is calculated from tumor data of the cancer bioassays using a statistical extrapolation procedure. The definition of Soalso provides that FDA will assume that the

    Socorresponds to the concentration of residue of carcinogenic concern in the total human diet that represents no significant increase in the risk of cancer to people. The concentration, derived from the So, of residues of carcinogenic concern in a specific edible tissue is termed the

    Sm. Sponsors are required to submit to FDA a regulatory analytical method that is an aggregate of all experimental procedures for measuring and confirming the presence of the marker residue of the sponsored compound in the target tissue of the target animal. FDA can be assured that there is no residue of carcinogenic concern when no residue of the compound is detectable (that is, the marker residue is below the limit of detection) using the approved regulatory analytical method.\1\ A marker residue is selected whose concentration is in a known relationship to the concentration of the residue of carcinogenic concern in the last tissue to deplete to its Sm.This tissue is known as the target tissue and the concentration of the marker residues is known as the Rm. The limit of detection of the approved regulatory analytical method must be capable of measuring the selected marker residue at the Rmin the selected target tissue. When residues of carcinogenic concern are below the

    Rmin the target tissue as measured by the approved regulatory analytical method, the residues of carcinogenic concern in target tissue and all other edible tissues are below their respective

    Smand therefore consumption of tissues containing these residues would not exceed the So. The detection of the marker residue in the target tissue below the Rmby the approved regulatory analytical method can be taken as confirmation that the residue of carcinogenic concern does not exceed Smin each of the edible tissues and, therefore, that the residue of carcinogenic concern in the diet of people does not exceed

    So. However, any detectable concentration of the marker residue by the approved regulatory analytical method, even if below the

    Rm, fails to satisfy the statutory requirements of the DES

    Proviso. The detection of any concentration would mean that the second prong of the DES Proviso has not been satisfied because it has not been shown that no residue of the substance is present in any edible portion of the animal at issue.

    \1\ The submission of such a method is approved as a collection of information under Office of Management and Budget (OMB) Control

    No. 0910-0032.

    As described previously, the approach for evaluating compounds of carcinogenic concern currently set forth in Sec. 500.84 utilizes a statistical extrapolation procedure that calculates a concentration of residue of carcinogenic concern that corresponds to a maximum lifetime risk to the test animal of 1 in 1 million. In addition, to provide flexibility, Sec. 500.90 permits the use of alternative procedures to satisfy the DES Proviso, when the person requesting the use of alternative procedures clearly sets forth the reasons why the alternative procedures will provide a basis for concluding that approval of the compound satisfies the requirements of the Delaney

    Clause provisions of the FD&C Act, including the DES Proviso.

    In recent years, FDA has, at times, been asked to consider allowing the use of alternative procedures to satisfy the DES Proviso. Some of these proposed alternative procedures did not rely on a statistical extrapolation of the data to a 1 in 1 million risk of cancer to test animals, but nevertheless the So,Sm,

    Rm,and regulatory analytical method resulting from these alternative approaches would be expected to ensure that consumption of food derived from animals treated with the carcinogenic new animal drug would result in no significant increase in the risk of cancer to people. In the course of considering these proposed alternative procedures, FDA has also considered whether the term So, as currently defined, adequately addresses concentrations of residues of carcinogenic concern in the total human diet that are found to represent no significant increase in the risk of cancer to people, but which are not derived from a statistical extrapolation of data to a 1 in 1 million risk of cancer to test animals.

    The current definition in Sec. 500.82 primarily defines

    Soas the concentration of the compound of carcinogenic concern that corresponds to the 1 in 1 million lifetime risk of cancer to the test animals and secondarily as corresponding to the concentration of residue of carcinogenic concern in the total human diet that represents no significant increase in a risk of cancer to people. Therefore, as presently constructed, the definition of

    Sois not primarily defined as the concentration of residues of carcinogenic concern in the total human diet derived from procedures not involving the extrapolation of data to a 1 in 1 million risk of cancer to the test animals. Thus, were FDA to allow the use of alternative procedures that do not rely on a statistical extrapolation of the data to a 1 in 1 million risk of cancer to test animals to satisfy the DES Proviso, it would have to develop a new set of terminology to describe the Center for Veterinary Medicine's (CVM's) approach for evaluating these compounds of carcinogenic concern. The proposed changes to the definitions of Soand Sm are intended to enable CVM to consider allowing the use of alternative procedures to satisfy the DES Proviso without requiring the development of a second, alternative, set of terminology.

    FDA believes that a careful reading of the December 31, 1987, final rule (52 FR 49572 at 49586), suggests that an emphasis on no significant increase in the risk of cancer to the human consumer, rather than on the specific 1 in 1 million risk of cancer to the test animals approach, reflects the original intent of the regulation. (See, e.g., 52 FR 49572 at 49575 and 49582.) FDA has concluded that the proposed redefinition of Sois consistent with this original intent of the regulation.

    For clarification purposes, FDA is also proposing a redefinition of

    Smin Sec. 500.82 to conform this definition with the redefinition of Soas described previously. Specifically,

    Smwould mean the concentration of a residue of carcinogenic concern in a specific edible tissue corresponding to no

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    significant increase in the risk of cancer to the human consumer.

    However, the definition of Smwould also retain the existing reference to a maximum lifetime risk of cancer in the test animals of 1 in 1 million.

    Finally, FDA is proposing to amend Sec. 500.84(c) to clarify that for each compound that is regulated as a carcinogen, FDA will analyze the data submitted using either a statistical extrapolation procedure as provided in Sec. 500.84(c)(1) or an alternate approach as provided in Sec. 500.90.

    FDA's goal in these changes is to clarify that the terms

    Soand Smapply even when the alternative procedures provided for in Sec. 500.90 are used to satisfy the DES

    Proviso, not to alter the usual process for approving compounds of carcinogenic concern. As such, in the absence of a waiver of the requirements of Sec. 500.84(c)(1), FDA maintains that sponsors must meet the conditions for approval set for in Sec. 500.84, including the default approach of a 1 in 1 million lifetime risk to the test animal.

  2. Legal Authority

    This rule, if finalized, would amend part 500, subpart E in a manner consistent with the Agency's current understanding and application of these provisions. FDA was given authority in 21 U.S.C. 348, 360b, and 379e to establish methods of examination to determine that no residue of a food additive, new animal drug, or color additive of carcinogenic concern would be found in any edible portion of animals after slaughter or in any food yielded by or derived from living animals. Furthermore, FDA has the authority to take the actions proposed in this rule under various statutory provisions. These provisions include 21 U.S.C. 321, 331, 348, 360b, 371, and 379e.

  3. Environmental Impact

    The Agency has 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.

  4. Analysis of Economic Impacts

    FDA has examined the impacts of the proposed rule under Executive

    Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 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; distributive impacts; and equity). The Agency believes that this proposed rule is not a significant regulatory action as defined by the Executive order.

    The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the proposed rule would not impose any direct or indirect costs on industry or government through the changes to the definitions of Soand Smand to Sec. 500.84(c), but rather would clarify these definitions to enable FDA to consider using alternative procedures to satisfy the DES Proviso without requiring the development of a second, alternative, set of terminology, the Agency proposes to certify that the final rule will not have a significant economic impact on a substantial number of small entities.

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing ``any rule that includes any Federal mandate that may result in the expenditure by

    State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.'' The current threshold after adjustment for inflation is $135 million, using the most current (2009) 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.

  5. Federalism

    FDA has analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the proposed rule, if finalized, would not contain policies that would 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, the Agency tentatively concludes that the proposed rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

  6. Paperwork Reduction Act of 1995

    This proposed rule refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by OMB under the Paperwork Reduction Act of 1995

    (44 U.S.C. 3501-3520). The collections of information in Sec. 500.84 have been approved under OMB Control No. 0910-0032.

  7. Request for Comments

    FDA requests comments to the proposed revisions to the definitions of Smand Socurrently found in Sec. 500.82(b) and to the proposed conforming changes to Sec. 500.84(c).

    Specifically, the Agency requests that comments focus on the proposal to emphasize ``no significant increase in the risk of cancer to the human consumer,'' rather than the more specific ``1 in 1 million risk of cancer to the test animals'' approach currently found in the definitions of Smand So.

    Interested persons may submit to the Division of Dockets Management

    (see ADDRESSES) either electronic or written comments regarding this document. It is only necessary to send one set of comments. It is no longer necessary to send two copies of mailed comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets

    Management between 9 a.m. and 4 p.m., Monday through Friday.

  8. Proposed Effective Date

    The Agency is proposing that any final rule that may issue based upon this proposed rule become effective upon publication in the

    Federal Register.

    List of Subjects in 21 CFR Part 500

    Animal drugs, Animal feeds, Cancer, Labeling, Packaging and containers, Polychlorinated biphenyls (PCB's).

    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 part 500 be amended as follows:

    PART 500--GENERAL 1. The authority citation for 21 CFR part 500 is revised to read as follows:

    Authority: 21 U.S.C. 321, 331, 342, 343, 348, 351, 352, 353, 360b, 371, 379e. 2. Revise the definitions of ``Sm'' and

    ``So'' in paragraph (b) of Sec. 500.82 to read as follows:

    Sec. 500.82 Definitions.

    * * * * *

    (b) * * *

    Sm means the concentration of a residue of carcinogenic concern in a specific edible tissue corresponding to no significant increase in the risk of

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    cancer to the human consumer. For the purpose of Sec. 500.84(c)(1),

    FDA will assume that this Smwill correspond to the concentration of residue in a specific edible tissue that corresponds to a maximum lifetime risk of cancer in the test animals of 1 in 1 million.

    So means the concentration of a residue of carcinogenic concern in the total human diet that represents no significant increase in the risk of cancer to the human consumer. For the purpose of Sec. 500.84(c)(1), FDA will assume that this Sowill correspond to the concentration of test compound in the total diet of test animals that corresponds to a maximum lifetime risk of cancer in the test animals of 1 in 1 million.

    * * * * * 3. Revise the introductory text of paragraph (c) of Sec. 500.84 to read as follows:

    Sec. 500.84 Conditions for approval of the sponsored compound.

    * * * * *

    (c) For each sponsored compound that FDA decides should be regulated as a carcinogen, FDA will either analyze the data from the bioassays using a statistical extrapolation procedure as outlined in paragraph (c)(1) of this section or evaluate an alternate procedure proposed by the sponsor as provided in Sec. 500.90. In either case, paragraphs (c)(2) and (c)(3) of this section apply.

    * * * * *

    Dated: December 15, 2010.

    Leslie Kux,

    Acting Assistant Commissioner for Policy.

    FR Doc. 2010-31887 Filed 12-17-10; 8:45 am

    BILLING CODE 4160-01-P

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