
[Federal Register: August 3, 2010 (Volume 75, Number 148)]
[Notices]               
[Page 45632-45636]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au10-75]                         

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2010-N-0382]

 
Animal Drug User Fee Rates and Payment Procedures for Fiscal Year 
2011

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is announcing the rates 
and payment procedures for fiscal year (FY) 2011 animal drug user fees. 
The Federal Food, Drug, and Cosmetic Act (the act), as amended by the 
Animal Drug User Fee Act of 2003 (ADUFA) and the Animal Drug User Fee 
Amendments of 2008 (ADUFA II), authorizes FDA to collect user fees for 
certain animal drug applications and supplements, on certain animal 
drug products, on certain establishments where such products are made, 
and on certain sponsors of such animal drug applications and/or 
investigational animal drug submissions. This notice establishes the 
fee rates for FY 2011.

FOR FURTHER INFORMATION CONTACT: Visit FDA's Web site at http://
www.fda.gov/ForIndustry/UserFees/AnimalDrugUserFeeActADUFA/default.htm 
or contact Lisa Kable, Center for Veterinary Medicine (HFV-10), Food 
and Drug Administration, 7529 Standish Pl., Rockville, MD 20855, 240-
276-9718. For general questions, you may also e-mail the Center for 
Veterinary Medicine (CVM) at: cvmadufa@fda.hhs.gov.

SUPPLEMENTARY INFORMATION:

[[Page 45633]]

I. Background

    Section 740 of the act (21 U.S.C. 379j-12) establishes four 
different kinds of user fees: (1) Fees for certain types of animal drug 
applications and supplements, (2) annual fees for certain animal drug 
products, (3) annual fees for certain establishments where such 
products are made, and (4) annual fees for certain sponsors of animal 
drug applications and/or investigational animal drug submissions (21 
U.S.C. 379j-12(a)). When certain conditions are met, FDA will waive or 
reduce fees (21 U.S.C. 379j-12(d)).
    For FY 2009 through FY 2013, the act establishes aggregate yearly 
base revenue amounts for each of these fee categories. Base revenue 
amounts established for years after FY 2009 are subject to adjustment 
for workload. Fees for applications, establishments, products, and 
sponsors are to be established each year by FDA so that the revenue for 
each fee category will approximate the level established in the 
statute, after the level has been adjusted for workload.
    For FY 2011, the animal drug user fee rates are: $316,200 for an 
animal drug application; $158,100 for a supplemental animal drug 
application for which safety or effectiveness data is required and for 
an animal drug application subject to the criteria set forth in section 
512(d)(4) of the act (21 U.S.C. 360b(d)(4)); $7,235 for an annual 
product fee; $83,100 for an annual establishment fee; and $64,000 for 
an annual sponsor fee. FDA will issue invoices for FY 2011 product, 
establishment, and sponsor fees by December 31, 2010, and these 
invoices will be due and payable within 30 days of issuance of the 
invoice.
    The application fee rates are effective for applications submitted 
on or after October 1, 2010, and will remain in effect through 
September 30, 2011. Applications will not be accepted for review until 
FDA has received full payment of application fees and any other animal 
drug user fees owed.

II. Revenue Amount for FY 2011

A. Statutory Fee Revenue Amounts

    ADUFA II (Public Law 110-316 signed by the President on August 14, 
2008) specifies that the aggregate revenue amount for FY 2011 for each 
of the 4 animal drug user fee categories is $4,862,000, before any 
adjustment for workload is made. (See 21 U.S.C. 379j-12(b)(1) through 
(b)(4).)

B. Inflation Adjustment to Fee Revenue Amount

    The amounts established in ADUFA II for each year for FY 2009 
through FY 2013 include an inflation adjustment; so, no further 
inflation adjustment is required.

C. Workload Adjustment to Inflation Adjusted Fee Revenue Amount

    For each FY beginning in FY 2010, ADUFA provides that fee revenue 
amounts shall be further adjusted to reflect changes in review workload 
(21 U.S.C. 379j-12(c)(1)).
    FDA calculated the average number of each of the five types of 
applications and submissions specified in the workload adjustment 
provision (animal drug applications, supplemental animal drug 
applications for which data with respect to safety or efficacy are 
required, manufacturing supplemental animal drug applications, 
investigational animal drug study submissions, and investigational 
animal drug protocol submissions) received over the 5-year period that 
ended on September 30, 2002 (the base years), and the average number of 
each of these types of applications and submissions over the most 
recent 5-year period that ended on June 30, 2010.
    The results of these calculations are presented in the first two 
columns of table 1 of this document. Column 3 reflects the percent 
change in workload over the two 5-year periods. Column 4 shows the 
weighting factor for each type of application, reflecting how much of 
the total FDA animal drug review workload was accounted for by each 
type of application or submission in the table during the most recent 5 
years. Column 5 of table 1 of this document is the weighted percent 
change in each category of workload, and was derived by multiplying the 
weighting factor in each line in column 4 by the percent change from 
the base years in column 3. At the bottom right of the table the sum of 
the values in column 5 is added, reflecting a total change in workload 
of -25% percent for FY 2011. This is the workload adjuster for FY 2011.

                                      Table 1--Workload Adjuster Calculation (Numbers may not add due to rounding)
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                                                    Column 1  5-Year                                                                        Column 5
                 Application Type                     Average (Base    Column 2  Latest 5-     Column 3         Column 4  Weighting        Weighted %
                                                         Years)           Year Average      Percent Change             Factor                Change
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New Animal Drug Applications (NADAs)                             28.8                12.2              -58%                     0.0372               -2%
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Supplemental NADAs With Safety or Efficacy Data                  23.4                13.2              -44%                     0.0241               -1%
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Manufacturing Supplements                                       366.6               430.4               17%                     0.1699                3%
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Investigational Study Submissions                               336.6               230.4              -32%                     0.5431              -17%
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Investigational Protocol Submissions                            292.4               198.6              -32%                     0.2257               -7%
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FY 2011 Workload Adjuster                                                                                                                           -25%
--------------------------------------------------------------------------------------------------------------------------------------------------------

    ADUFA specifies that the workload adjuster may not result in fees 
that are less than the fee revenue amount in the statute (21 U.S.C. 
379j-12(c)(1)(B)). Because applying the FY 2011 workload adjuster would 
result in fees less than the statutory amount, the workload adjustment 
will not be applied in FY 2011. As a result, the statutory revenue 
target amount for each of the 4 categories of fees remains at 
$4,862,000 with the new total revenue target for fees in FY 2011 being 
$19,448,000.

[[Page 45634]]

III. Adjustment for Excess Collections in Previous Years

    ADUFA II amended the annual offset provision of ADUFA I to require 
one offset when FY 2013 fees are set in August of 2012, if aggregate 
collections from FY 2009 through 2011 plus the amount of fees estimated 
to be collected for FY 2012 exceed aggregate appropriations over the 
same period (21 U.S.C. 379j-12(g)(4), as amended by ADUFA II). 
Therefore FDA is not offsetting for excess collections at this time.

IV. Application Fee Calculations for FY 2011

    The terms ``animal drug application'' and ``supplemental animal 
drug application'' are defined in section 739 of the act (21 U.S.C. 
379j-11(1) and (2)).

A. Application Fee Revenues and Numbers of Fee-Paying Applications

    The application fee must be paid for any animal drug application or 
supplemental animal drug application that is subject to fees under 
ADUFA and that is submitted on or after September 1, 2003. The 
application fees are to be set so that they will generate $4,862,000 in 
fee revenue for FY 2011. This is the amount set out in the statute and 
no adjustments are required for FY 2011. The fee for a supplemental 
animal drug application for which safety or effectiveness data are 
required and for an animal drug application subject to criteria set 
forth in section 512(d)(4) of the act is to be set at 50 percent of the 
animal drug application fee. (See 21 U.S.C. 379j-12(a)(1)(A)(ii), as 
amended by ADUFA II.)
    To set animal drug application fees and supplemental animal drug 
application fees to realize $4,862,000, FDA must first make some 
assumptions about the number of fee-paying applications and supplements 
the agency will receive in FY 2011.
    The agency knows the number of applications that have been 
submitted in previous years. That number fluctuates significantly from 
year to year. In estimating the fee revenue to be generated by animal 
drug application fees in FY 2011, FDA is assuming that the number of 
applications that will pay fees in FY 2011 will equal the average 
number of submissions over the 4 most recent years (including an 
estimate for the current year). This may not fully account for possible 
year to year fluctuations in numbers of fee-paying applications, but 
FDA believes that this is a reasonable approach after 7 years of 
experience with this program.
    Over the past 4 years, the average number of animal drug 
applications that would have been subject to the full fee was 8.5, 
including the number for the most recent year, estimated at 9. Over 
this same period, the average number of supplemental applications and 
applications subject to the criteria set forth in section 512(d)(4) of 
the act that would have been subject to half of the full fee was 13.75, 
including the number for the most recent year, estimated at 14.
    Thus, for FY 2011, FDA estimates receipt of 8.5 fee paying original 
applications and 13.75 fee-paying supplemental animal drug applications 
and applications subject to the criteria set forth is section 512(d)(4) 
of the act which pay half of the full fee.

B. Fee Rates for FY 2011

    FDA must set the fee rates for FY 2011 so that the estimated 8.5 
applications that pay the full fee and the estimated 13.75 supplements 
and applications subject to the criteria set forth in section 512(d)(4) 
of the act that pay half of the full fee will generate a total of 
$4,862,000. To generate this amount, the fee for an animal drug 
application, rounded to the nearest hundred dollars, will have to be 
$316,200, and the fee for a supplemental animal drug application for 
which safety or effectiveness data are required and for applications 
subject to the criteria set forth in section 512(d)(4) of the act will 
have to be $158,100.

V. Product Fee Calculations for FY 20111

A. Product Fee Revenues and Numbers of Fee-Paying Products

    The animal drug product fee (also referred to as the product fee) 
must be paid annually by the person named as the applicant in a new 
animal drug application or supplemental new animal drug application for 
an animal drug product submitted for listing under section 510 of the 
act (21 U.S.C. 360), and who had an animal drug application or 
supplemental animal drug application pending at FDA after September 1, 
2003. (See 21 U.S.C. 379j-12(a)(2).) The term ``animal drug product'' 
is defined in 21 U.S.C. 379j-11(3). The product fees are to be set so 
that they will generate $4,862,000 in fee revenue for FY 2011. This is 
the amount set out in the statute and no adjustments are required for 
FY 2011.
    To set animal drug product fees to realize $4,862,000, FDA must 
make some assumptions about the number of products for which these fees 
will be paid in FY 2011. FDA developed data on all animal drug products 
that have been submitted for listing under section 510 of the act, and 
matched this to the list of all persons who had an animal drug 
application or supplement pending after September 1, 2003. As of July 
2010, FDA estimates that there are a total of 747 products submitted 
for listing by persons who had an animal drug application or 
supplemental animal drug application pending after September 1, 2003. 
Based on this, FDA estimates that a total of 747 products will be 
subject to this fee in FY 2011.
    In estimating the fee revenue to be generated by animal drug 
product fees in FY 2011, FDA is again assuming that 10 percent of the 
products invoiced, or about 75, will not pay fees in FY 2011 due to fee 
waivers and reductions. Based on experience with other user fee 
programs and the first 7 years of ADUFA, FDA believes that this is a 
reasonable basis for estimating the number of fee-paying products in FY 
2011.
    Accordingly, the agency estimates that a total of 672 (747 minus 
75) products will be subject to product fees in FY 2011.

B. Product Fee Rates for FY 2011

    FDA must set the fee rates for FY 2011 so that the estimated 672 
products that pay fees will generate a total of $4,862,000. To generate 
this amount will require the fee for an animal drug product, rounded to 
the nearest 5 dollars, to be $7,235.

VI. Establishment Fee Calculations for FY 2011

A. Establishment Fee Revenues and Numbers of Fee-Paying Establishments

    The animal drug establishment fee (also referred to as the 
establishment fee) must be paid annually by the person who: (1) Owns or 
operates, directly or through an affiliate, an animal drug 
establishment; (2) is named as the applicant in an animal drug 
application or supplemental animal drug application for an animal drug 
product submitted for listing under section 510 of the act; (3) had an 
animal drug application or supplemental animal drug application pending 
at FDA after September 1, 2003; and (4) whose establishment engaged in 
the manufacture of the animal drug product during the fiscal year. (See 
21 U.S.C. 379j-12(a)(3).) An establishment subject to animal drug 
establishment fees is assessed only 1 such fee per fiscal year. (See 21 
U.S.C. 379j-12(a)(3).) The term ``animal drug establishment'' is 
defined in 21 U.S.C. 379j-11(4). The establishment fees are to be set 
so that they will generate $4,862,000 in fee revenue for FY 2011. This 
is the amount set out in the statute and no adjustments are required 
for FY 2011.

[[Page 45635]]

    To set animal drug establishment fees to realize $4,862,000, FDA 
must make some assumptions about the number of establishments for which 
these fees will be paid in FY 2011. FDA developed data on all animal 
drug establishments and matched this to the list of all persons who had 
an animal drug application or supplement pending after September 1, 
2003. As of July 2010, FDA estimates that there are a total of 65 
establishments owned or operated by persons who had an animal drug 
application or supplemental animal drug application pending after 
September 1, 2003. Based on this, FDA believes that 65 establishments 
will be subject to this fee in FY 2011.
    In estimating the fee revenue to be generated by animal drug 
establishment fees in FY 2011, FDA is assuming that 10 percent of the 
establishments invoiced, or 6.5, will not pay fees in FY 2011 due to 
fee waivers and reductions. Based on experience with the first 7 years 
of ADUFA, FDA believes that this is a reasonable basis for estimating 
the number of fee-paying establishments in FY 2011.
    Accordingly, the agency estimates that a total of 58.5 
establishments (65 minus 6.5) will be subject to establishment fees in 
FY 2011.

B. Establishment Fee Rates for FY 2011

    FDA must set the fee rates for FY 2011 so that the estimated 58.5 
establishments that pay fees will generate a total of $4,862,000. To 
generate this amount will require the fee for an animal drug 
establishment, rounded to the nearest 50 dollars, to be $83,100.

VII. Sponsor Fee Calculations for FY 2011

A. Sponsor Fee Revenues and Numbers of Fee-Paying Sponsors

    The animal drug sponsor fee (also referred to as the sponsor fee) 
must be paid annually by each person who: (1) Is named as the applicant 
in an animal drug application, except for an approved application for 
which all subject products have been removed from listing under section 
510 of the act or has submitted an investigational animal drug 
submission that has not been terminated or otherwise rendered inactive; 
and (2) had an animal drug application, supplemental animal drug 
application, or investigational animal drug submission pending at FDA 
after September 1, 2003. (See 21 U.S.C. 379j-11(6) and 379j-12(a)(4).) 
An animal drug sponsor is subject to only 1 such fee each fiscal year. 
(See 21 U.S.C. 379j-12(a)(4).) The sponsor fees are to be set so that 
they will generate $4,862,000 in fee revenue for FY 2011. This is the 
amount set out in the statute, and no adjustments are required for FY 
2011.
    To set animal drug sponsor fees to realize $4,862,000, FDA must 
make some assumptions about the number of sponsors who will pay these 
fees in FY 2011. Based on the number of firms that would have met this 
definition in each of the past 7 years, FDA estimates that a total of 
162 sponsors will meet this definition in FY 2011.
    Careful review indicates that about one third or 33 percent of all 
of these sponsors will qualify for minor use/minor species waiver or 
reduction (21 U.S.C. 379j-12(d)(1)(C)). Based on the agency's 
experience to date with sponsor fees, FDA's current best estimate is 
that an additional 20 percent will qualify for other waivers or 
reductions, for a total of 53 percent of the sponsors invoiced, or 86, 
who will not pay fees in FY 2011 due to fee waivers and reductions. FDA 
believes that this is a reasonable basis for estimating the number of 
fee-paying sponsors in FY 2011.
    Accordingly, the agency estimates that a total of 76 sponsors (162 
minus 86) will be subject to and pay sponsor fees in FY 2011.

B. Sponsor Fee Rates for FY 2011

    FDA must set the fee rates for FY 2011 so that the estimated 76 
sponsors that pay fees will generate a total of $4,862,000. To generate 
this amount will require the fee for an animal drug sponsor, rounded to 
the nearest 50 dollars, to be $64,000.

VIII. Fee Schedule for FY 2011

    The fee rates for FY 2011 are summarized in table 2 of this 
document.

                                           Table 2--FY 2011 Fee Rates
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             Animal Drug User Fee Category                                Fee Rate for FY 2011
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Animal Drug Application Fees

    Animal Drug Application                                                                             $316,200
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    Supplemental Animal Drug Application for Which                                                      $158,100
     Safety or Effectiveness Data are Required or
     Animal Drug Application Subject to the Criteria
     Set Forth in Section 512(d)(4) of the Act
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Animal Drug Product Fee                                                                                   $7,235
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Animal Drug Establishment Fee\1\                                                                         $83,100
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Animal Drug Sponsor Fee\2\                                                                               $64,000
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\1\ An animal drug establishment is subject to only one such fee each fiscal year.
\2\ An animal drug sponsor is subject to only one such fee each fiscal year.

IX. Procedures for Paying the FY 2011 Fees

A. Application Fees and Payment Instructions

    The appropriate application fee established in the new fee schedule 
must be paid for an animal drug application or supplement subject to 
fees under ADUFA that is submitted after September 30, 2010. Payment 
must be made in U.S. currency by check, bank draft, or U.S. postal 
money order payable to the order of the Food and Drug Administration, 
by wire transfer, or electronically using Pay.gov. (The Pay.gov payment 
option is available to you after you submit a cover sheet. Click the 
``Pay Now'' button.) On your check, bank draft, or U.S. postal money 
order, please write your application's unique Payment Identification 
Number (PIN), beginning with the letters AD, from the upper right-hand 
corner of your completed Animal Drug User Fee Cover Sheet. Also write 
the FDA post office box number (P.O. Box 953877) on the enclosed check, 
bank draft, or money order. Your payment and a copy of the completed 
Animal Drug User Fee Cover

[[Page 45636]]

Sheet can be mailed to: Food and Drug Administration, P.O. Box 953877, 
St. Louis, MO, 63195-3877.
    If payment is made by wire transfer, send payment to: U.S. 
Department of Treasury, TREAS NYC, 33 Liberty St., New York, NY 10045, 
FDA Deposit Account Number: 75060099, U.S. Department of Treasury 
routing/transit number: 021030004, SWIFT Number: FRNYUS33. You are 
responsible for any administrative costs associated with the processing 
of a wire transfer. Contact your bank or financial institution 
regarding additional fees.
    If you prefer to send a check by a courier such as Federal Express 
(FEDEX) or United Parcel Service (UPS), the courier may deliver the 
check and printed copy of the cover sheet to: U.S. Bank, Attn: 
Government Lockbox 953877, 1005 Convention Plaza, St. Louis, MO 63101. 
(Note: This address is for courier delivery only. If you have any 
questions concerning courier delivery contact the U.S. Bank at 314-418-
4821. This telephone number is only for questions about courier 
delivery.)
    The tax identification number of the Food and Drug Administration 
is 530196965. (Note: In no case should the payment for the fee be 
submitted to FDA with the application.)
    It is helpful if the fee arrives at the bank at least a day or two 
before the application arrives at FDA's CVM. FDA records the official 
application receipt date as the later of the following: The date the 
application was received by FDA's CVM, or the date U.S. Bank notifies 
FDA that your payment in the full amount has been received, or when the 
U.S. Treasury notifies FDA of receipt of an electronic or wire transfer 
payment. U.S. Bank and the U.S. Treasury are required to notify FDA 
within 1 working day, using the PIN described previously.

B. Application Cover Sheet Procedures

    Step One--Create a user account and password. Log on to the ADUFA 
Web site at http://www.fda.gov/ForIndustry/UserFees/
AnimalDrugUserFeeActADUFA/default.htm and, under Tools and Resources 
click ``The Animal Drug User Fee Cover Sheet'' and then click ``Create 
ADUFA User Fee Cover Sheet.'' For security reasons, each firm 
submitting an application will be assigned an organization 
identification number, and each user will also be required to set up a 
user account and password the first time you use this site. Online 
instructions will walk you through this process.
    Step Two--Create an Animal Drug User Cover Sheet, transmit it to 
FDA, and print a copy. After logging into your account with your user 
name and password, complete the steps required to create an Animal Drug 
User Fee Cover Sheet. One cover sheet is needed for each animal drug 
application or supplement. Once you are satisfied that the data on the 
cover sheet is accurate and you have finalized the cover sheet, you 
will be able to transmit it electronically to FDA and you will be able 
to print a copy of your cover sheet showing your unique PIN.
    Step Three--Send the payment for your application as described in 
section IX.A of this document.
    Step Four--Please submit your application and a copy of the 
completed Animal Drug User Fee Cover Sheet to the following address: 
Food and Drug Administration, Center for Veterinary Medicine, Document 
Control Unit (HFV-199), 7500 Standish Pl., Rockville, MD 20855.

C. Product, Establishment, and Sponsor Fees

    By December 31, 2010, FDA will issue invoices and payment 
instructions for product, establishment, and sponsor fees for FY 2011 
using this Fee Schedule. Payment will be due and payable within 30 days 
of issuance of the invoice. FDA will issue invoices in November 2011 
for any products, establishments, and sponsors subject to fees for FY 
2011 that qualify for fees after the December 2010 billing.

    Dated: July 29, 2010.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2010-19037 Filed 8-2-10; 8:45 am]
BILLING CODE 4160-01-S

