Notice2022-02478
Agency Information Collection Activities; Proposed Collection; Comment Request; Reporting Harmful and Potentially Harmful Constituents in Tobacco Products and Tobacco Smoke Under the Federal Food, Drug, and Cosmetic Act
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Published
February 7, 2022
Issuing agencies
Health and Human Services DepartmentFood and Drug Administration
Abstract
The Food and Drug Administration (FDA, Agency, or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, and to allow 60 days for public comment in response to the notice. This notice solicits comments on Reporting Harmful and Potentially Harmful Constituents in Tobacco Products and Tobacco Smoke Under the Federal Food, Drug, and Cosmetic Act.
Full Text
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<title>Federal Register, Volume 87 Issue 25 (Monday, February 7, 2022)</title>
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[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Notices]
[Pages 6869-6872]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02478]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2012-D-0049]
Agency Information Collection Activities; Proposed Collection;
Comment Request; Reporting Harmful and Potentially Harmful Constituents
in Tobacco Products and Tobacco Smoke Under the Federal Food, Drug, and
Cosmetic Act
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice.
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SUMMARY: The Food and Drug Administration (FDA, Agency, or we) is
announcing an opportunity for public comment on the proposed collection
of certain information by the Agency. Under the Paperwork Reduction Act
of 1995 (PRA), Federal Agencies are required to publish notice in the
Federal Register concerning each proposed collection of information,
including each proposed extension of an existing collection of
information, and to allow 60 days for public comment in response to the
notice. This notice solicits comments on Reporting Harmful and
Potentially Harmful Constituents in Tobacco Products and Tobacco Smoke
Under the Federal Food, Drug, and Cosmetic Act.
DATES: Submit either electronic or written comments on the collection
of information by April 8, 2022.
[[Page 6870]]
ADDRESSES: You may submit comments as follows. Please note that late,
untimely filed comments will not be considered. Electronic comments
must be submitted on or before April 8, 2022. The <a href="https://www.regulations.gov">https://www.regulations.gov</a> electronic filing system will accept comments until
11:59 p.m. Eastern Time at the end of April 8, 2022. Comments received
by mail/hand delivery/courier (for written/paper submissions) will be
considered timely if they are postmarked or the delivery service
acceptance receipt is on or before that date.
Electronic Submissions
Submit electronic comments in the following way:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to <a href="https://www.regulations.gov">https://www.regulations.gov</a>
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
<bullet> If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').
Written/Paper Submissions
Submit written/paper submissions as follows:
<bullet> Mail/Hand Delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
<bullet> For written/paper comments submitted to the Dockets
Management Staff, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
Instructions: All submissions received must include the Docket No.
FDA-2012-D-0049 for ``Agency Information Collection Activities;
Proposed Collection; Comment Request; Reporting Harmful and Potentially
Harmful Constituents in Tobacco Products and Tobacco Smoke Under the
Federal Food, Drug, and Cosmetic Act.'' Received comments, those filed
in a timely manner (see ADDRESSES), will be placed in the docket and,
except for those submitted as ``Confidential Submissions,'' publicly
viewable at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or at the Dockets Management
Staff between 9 a.m. and 4 p.m., Monday through Friday, 240-402-7500.
<bullet> Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comments only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will
review this copy, including the claimed confidential information, in
its consideration of comments. The second copy, which will have the
claimed confidential information redacted/blacked out, will be
available for public viewing and posted on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Submit both copies to the Dockets Management Staff. If you do not wish
your name and contact information to be made publicly available, you
can provide this information on the cover sheet and not in the body of
your comments and you must identify this information as
``confidential.'' Any information marked as ``confidential'' will not
be disclosed except in accordance with 21 CFR 10.20 and other
applicable disclosure law. For more information about FDA's posting of
comments to public dockets, see 80 FR 56469, September 18, 2015, or
access the information at: <a href="https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23389.pdf">https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23389.pdf</a>.
Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852, 240-402-7500.
FOR FURTHER INFORMATION CONTACT: Ila S. Mizrachi, Office of Operations,
Food and Drug Administration, Three White Flint North, 10A-12M, 11601
Landsdown St., North Bethesda, MD 20852, 301-796-7726,
<a href="/cdn-cgi/l/email-protection#d787859684a3b6b1b197b1b3b6f9bfbfa4f9b0b8a1"><span class="__cf_email__" data-cfemail="29797b687a5d484f4f694f4d480741415a074e465f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Under the PRA (44 U.S.C. 3501-3521), Federal
Agencies must obtain approval from the Office of Management and Budget
(OMB) for each collection of information they conduct or sponsor.
``Collection of information'' is defined in 44 U.S.C. 3502(3) and 5 CFR
1320.3(c) and includes Agency requests or requirements that members of
the public submit reports, keep records, or provide information to a
third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A))
requires Federal Agencies to provide a 60-day notice in the Federal
Register concerning each proposed collection of information, including
each proposed extension of an existing collection of information,
before submitting the collection to OMB for approval. To comply with
this requirement, FDA is publishing notice of the proposed collection
of information set forth in this document.
With respect to the following 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; and (4) ways
to minimize the burden of the collection of information on respondents,
including through the use of automated collection techniques, when
appropriate, and other forms of information technology.
Reporting Harmful and Potentially Harmful Constituents in Tobacco
Products and Tobacco Smoke Under the Federal Food, Drug, and Cosmetic
Act
OMB Control Number 0910-0732--Extension
The Family Smoking Prevention and Tobacco Control Act (Pub. L. 111-
31) (Tobacco Control Act), enacted on June 22, 2009, amended the
Federal Food, Drug, and Cosmetic Act (FD&C Act) and provided FDA with
the authority to regulate the manufacture, marketing, and distribution
of cigarettes, cigarette tobacco, roll-your-own (RYO) tobacco, and
smokeless tobacco products to protect the public health and to reduce
tobacco use by minors. The Tobacco Control Act also gave FDA the
authority to issue regulations deeming other products that meet the
statutory definition of a tobacco product to be subject to chapter IX
of the FD&C Act
[[Page 6871]]
(section 901(b) of the FD&C Act (21 U.S.C. 387a(b))).
In accordance with that authority, on May 10, 2016, FDA issued a
final rule deeming all products that meet the statutory definition of
tobacco product, except accessories of newly deemed tobacco products,
to be subject to FDA's tobacco product authority (final deeming rule)
(81 FR 28974).
Chapter IX of the FD&C Act now applies to newly regulated products,
including sections 904(a)(3) and (c)(1) (21 U.S.C. 387d(a)(3) and
(c)(1)). Section 904(a)(3) of the FD&C Act requires the submission of
an initial report from each tobacco product manufacturer or importer,
or agents thereof, listing all constituents, including smoke
constituents as applicable, identified as a harmful and potentially
harmful constituent (HPHC) to health by FDA. Reports must be by brand
and by quantity in each brand and subbrand. We note that for
cigarettes, smokeless tobacco, cigarette filler, and RYO tobacco
products, this initial reporting was completed in 2012.
Section 904(c)(1) of the FD&C Act provides that manufacturers of
tobacco products not on the market as of June 22, 2009, must also
provide the information reportable under section 904(a)(3) at least 90
days prior to introducing the product into interstate commerce.\1\
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\1\ Note that section 904(c)(1) testing and reporting
requirements are separate from the requirements that must be
satisfied before a new tobacco product (sections 905 and 910 of the
FD&C Act (21 U.S.C. 387e and 387j)), or modified risk tobacco
product (section 911 of the FD&C Act (21 U.S.C. 387k)) may be
marketed.
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FDA has taken several steps to identify HPHCs to be reported under
section 904 of the FD&C Act, including issuing a guidance discussing
FDA's current thinking on the meaning of the term ``harmful and
potentially harmful constituent'' in the context of implementing the
HPHC list requirement under section 904(e) of the FD&C Act (76 FR 5387,
January 31, 2011, revised guidance issued August 2016). The guidance is
available on the internet at <a href="https://www.fda.gov/regulatory-information/search-fda-guidance-documents/harmful-and-potentially-harmful-constituents-tobacco-products-used-section-904e-federal-food-drug">https://www.fda.gov/regulatory-information/search-fda-guidance-documents/harmful-and-potentially-harmful-constituents-tobacco-products-used-section-904e-federal-food-drug</a>. The current established list of HPHCs also is available on the
internet at <a href="https://www.fda.gov/tobacco-products/rules-regulations-and-guidance/harmful-and-potentially-harmful-constituents-tobacco-products-and-tobacco-smoke-established-list">https://www.fda.gov/tobacco-products/rules-regulations-and-guidance/harmful-and-potentially-harmful-constituents-tobacco-products-and-tobacco-smoke-established-list</a> (77 FR 20034, April 3, 2012).
The purpose of the information collection is to collect statutorily
mandated information regarding HPHCs in certain tobacco products and
tobacco smoke, by brand and by quantity in each brand and subbrand.
To facilitate the submission of HPHC information, Forms FDA 3787a-
j, for cigarettes, smokeless tobacco products, and RYO tobacco
products, respectively, in both paper and electronic formats, are
available. Additionally, FDA is developing forms to facilitate the
submission of HPHC information for the deemed tobacco products. We
intend to model these forms on the current HPHC reporting forms (i.e.,
Forms FDA 3787a-j). A proposed information collection for deemed
products will be published in a separate Federal Register notice, and
we will solicit comments on that collection at that time.
Manufacturers or importers, or their agents, may submit HPHC
information either electronically or in paper format. The FDA
eSubmitter tool, available at <a href="https://www.fda.gov/industry/fda-esubmitter/using-esubmitter-prepare-tobacco-product-submissions">https://www.fda.gov/industry/fda-esubmitter/using-esubmitter-prepare-tobacco-product-submissions</a>,
provides electronic forms to streamline the data entry and submission
process for reporting HPHCs for cigarettes, smokeless tobacco products,
and RYO tobacco products. Users of eSubmitter may populate an FDA-
created Excel file and import data into eSubmitter. Whether respondents
decide to submit reports electronically or on paper, each form provides
instructions for completing and submitting HPHC information to FDA. The
forms contain fields for company information, product information, and
HPHC information.
FDA estimates the burden of this collection of information as
follows:
Table 1--Estimated Annual Reporting Burden \1\
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Number of
Activity Number of responses per Total annual Average burden Total hours
respondents respondent responses per response
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Reporting for Section 904(c)(1) Products
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1. Reporting of Manufacturer/Importer Company and Product Information by Completing Submission Forms
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Cigarette....................... 380 1 380 1.82 692
RYO............................. 19 1 19 0.43 8
Smokeless....................... 25 1 25 0.63 16
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Total....................... .............. .............. .............. .............. 716
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2. Testing of HPHC Quantities in Products
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Cigarette Filler and RYO........ 19 1 19 9.42 179
Smokeless....................... 25 1 25 12.06 302
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Total....................... .............. .............. .............. .............. 481
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3. Testing of HPHC Quantities in Mainstream Smoke
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Cigarette: ISO Regimen.......... 380 1 380 23.64 8,983
Cigarette: Health Canada Regimen 380 1 380 23.64 8,983
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Total....................... .............. .............. .............. .............. 17,996
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[[Page 6872]]
Total Section 904(c)(1) .............. .............. .............. .............. 19,193
Reporting Burden Hours.
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\1\ There are no capital costs or operating and maintenance costs associated with this collection of
information.
The burden for this collection of information is estimated to be
19,193 hours. The burden estimate for this collection of information
includes the time it will take to read the instructions, test the
products, and prepare the HPHC report. In arriving at this burden
estimate, FDA estimated the number of tobacco products to be reported
under the requirements of section 904(c)(1) of the FD&C Act annually to
FDA.
Section 1 of table 1 estimates that 424 respondents (380 cigarettes
receiving authorizations, 19 RYO tobacco receiving authorizations, 25
smokeless receiving authorizations) will submit 424 HPHC reports
annually. Each respondent represents a statutory tobacco product that
receives authorization from FDA for which manufacturers and importers
(or their agents), must report their product information to FDA under
section 904(c)(1) of the FD&C Act at least 90 days prior to delivery
for introduction into interstate commerce for all new products. This
section addresses the time required to report their company information
to FDA through the use of the electronic portal or paper forms.
The company information reported includes company name; mailing
address; telephone and Fax numbers; FDA Establishment Identifier
number; Data Universal Numbering System number; and point of contact
name, mailing address, and telephone and Fax numbers, as applicable. It
also addresses the time required for manufacturers and importers to
report their product information by entering certain testing
information into the electronic or paper forms.
The product information includes brand and subbrand name; unique
product identification number; type of product identification number;
product category and subcategory; and mean weight and standard
deviation of tobacco in product.
We estimate that the burden to enter both the company and product
information is no more than 1.82 hours per response for cigarettes,
0.43 hours per response for RYO, and 0.63 hours per response for
smokeless tobacco products regardless of whether the paper or
electronic Form FDA series 3787 is used. The time to report per tobacco
product types varies because the number of HPHCs varies by tobacco
product category. The total hours estimated for this section is 716.
The estimated number of responses under section 904(c)(1) of the
FD&C Act is based on FDA's experience, the past 4 years of tobacco
products receiving marketing authorizations from FDA, and actual
responses to FDA under this provision of the FD&C Act for statutorily
regulated products.
Section 2 of table 1 estimates that 44 respondents (19 cigarette
filler and RYO tobacco receiving authorizations and 25 smokeless
receiving authorizations) will test quantities of HPHCs in an average
of 44 products annually. This section addresses the time required for
manufacturers and importers (or their agents) who must test HPHC
quantities in products. The burden estimates include the burden to test
the tobacco products, draft testing reports, and submit the report to
FDA. The total expected burden for this section is 481 hours.
Section 3 of table 1 addresses the time required for manufacturers
and importers to test quantities for HPHCs in cigarette smoke. The
burden estimates include: The burden to test the number of replicate
measurements; test date range; manufacture date range; extraction
method; separation method; detection method; and mean quantity and
standard deviation of HPHCs and includes the burden to test the tobacco
products, draft testing reports, and submit the report to FDA. The
annual burden reflects our estimate of the time it takes to test the
tobacco products (i.e., carry out laboratory work). The burden estimate
assumes that manufacturers and importers report HPHC quantities in
cigarette mainstream smoke according to the two smoking regimens. The
total expected burden is 17,996 hours for this section.
The total estimated burden for this information collection is
19,193 hours and 424 respondents. Our estimated burden for the
information collection reflects an overall increase of 269 respondents
and a corresponding increase of 16,677 hours. We attribute this
adjustment to updated methodology in which the current estimates are
derived from historical statutory tobacco product applications
submitted and authorized by FDA in the past 4 years as (1)
manufacturers and importers (or their agents) of authorized products
are required to submit HPHC reports at least 90 days prior to delivery
for introduction into interstate commerce for all new products and (2)
initial reporting under section 904(a)(3) of the FD&C Act for statutory
products was completed in 2012.
Dated: February 2, 2022.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2022-02478 Filed 2-4-22; 8:45 am]
BILLING CODE 4164-01-P
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