Notice2022-16170
Outsourcing Facility Fee Rates for Fiscal Year 2023
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 28, 2022
Effective
October 1, 2022
Issuing agencies
Health and Human Services DepartmentFood and Drug Administration
Abstract
The Food and Drug Administration (FDA) is announcing the fiscal year (FY) 2023 rates for the establishment and reinspection fees related to entities that compound human drugs and elect to register as outsourcing facilities under the Federal Food, Drug, and Cosmetic Act (FD&C Act). The FD&C Act authorizes FDA to assess and collect an annual establishment fee from outsourcing facilities, as well as a reinspection fee for each reinspection of an outsourcing facility. This document establishes the FY 2023 rates for the small business establishment fee ($5,941), the non-small business establishment fee ($18,661), and the reinspection fee ($17,823) for outsourcing facilities; provides information on how the fees for FY 2023 were determined; and describes the payment procedures outsourcing facilities should follow.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 144 (Thursday, July 28, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 144 (Thursday, July 28, 2022)]
[Notices]
[Pages 45335-45339]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16170]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2022-N-1601]
Outsourcing Facility Fee Rates for Fiscal Year 2023
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is announcing the
fiscal year (FY) 2023 rates for the establishment and reinspection fees
related to entities that compound human drugs and elect to register as
outsourcing facilities under the Federal Food, Drug, and Cosmetic Act
(FD&C Act). The FD&C Act authorizes FDA to assess and collect an annual
establishment fee from outsourcing facilities, as well as a
reinspection fee for each reinspection of an outsourcing facility. This
document establishes the FY 2023 rates for the small business
establishment fee ($5,941), the non-small business establishment fee
($18,661), and the reinspection fee ($17,823) for outsourcing
facilities; provides information on how the fees for FY 2023 were
determined; and describes the payment procedures outsourcing facilities
should follow.
DATES: These fee rates are effective October 1, 2022, and will remain
in effect through September 30, 2023.
ADDRESSES: Office of Financial Management, Food and Drug
Administration, 4041 Powder Mill Rd., Rm. 61075, Beltsville, MD.
FOR FURTHER INFORMATION CONTACT: For more information on human drug
compounding and outsourcing facility fees, visit FDA's website at:
<a href="https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/PharmacyCompounding/default.htm">https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/PharmacyCompounding/default.htm</a>.
For questions relating to this notice, contact: Robert Marcarelli,
User Fees Support Team at DUF-Budget, Food and Drug Administration, <a href="/cdn-cgi/l/email-protection#642b2b492b22262534492b22294920312249261100030110240200054a0c0c174a030b12"><span class="__cf_email__" data-cfemail="3b747416747d797a6b16747d76167f6e7d16794e5f5c5e4f7b5d5f5a15535348155c544d">[email protected]</span></a>, 301-796-7223.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 503B of the FD&C Act (21 U.S.C. 353b), a human drug
[[Page 45336]]
compounder can become an ``outsourcing facility.'' Outsourcing
facilities, as defined in section 503B(d)(4), are facilities that meet
all the conditions described in section 503B(a), including registering
with FDA as an outsourcing facility and paying an annual establishment
fee. If the conditions of section 503B are met, a drug compounded by or
under the direct supervision of a licensed pharmacist in an outsourcing
facility is exempt from three sections of the FD&C Act: (1) section
502(f)(1) (21 U.S.C. 352(f)(1)) concerning the labeling of drugs with
adequate directions for use; (2) section 505 (21 U.S.C. 355) concerning
the approval of human drug products under new drug applications (NDAs)
or abbreviated new drug applications (ANDAs); and (3) section 582 (21
U.S.C. 360eee-1) concerning drug supply chain security requirements.
Drugs compounded in outsourcing facilities are not exempt from the
requirements of section 501(a)(2)(B) of the FD&C Act (21 U.S.C.
351(a)(2)(B)) concerning current good manufacturing practice
requirements for drugs.
Section 744K of the FD&C Act (21 U.S.C. 379j-62) authorizes FDA to
assess and collect the following fees associated with outsourcing
facilities: (1) an annual establishment fee from each outsourcing
facility and (2) a reinspection fee from each outsourcing facility
subject to a reinspection (see section 744K(a)(1) of the FD&C Act).
Under statutorily defined conditions, a qualified applicant may pay a
reduced small business establishment fee (see section 744K(c)(4) of the
FD&C Act).
FDA announced in the Federal Register of November 24, 2014 (79 FR
69856), the availability of a final guidance for industry entitled
``Fees for Human Drug Compounding Outsourcing Facilities Under Sections
503B and 744K of the FD&C Act.'' The guidance provides additional
information on the annual fees for outsourcing facilities and
adjustments required by law, reinspection fees, how to submit payment,
the effect of failure to pay fees, and how to qualify as a small
business to obtain a reduction of the annual establishment fee. This
guidance can be accessed on FDA's website at: <a href="https://www.fda.gov/media/136683/download">https://www.fda.gov/media/136683/download</a>.
II. Fees for FY 2023
A. Methodology for Calculating FY 2023 Adjustment Factors
1. Inflation Adjustment Factor
Section 744K(c)(2) of the FD&C Act specifies the annual inflation
adjustment for outsourcing facility fees. The inflation adjustment has
two components: one based on FDA's payroll costs and one based on FDA's
non-payroll costs for the first 3 of the 4 previous fiscal years. The
payroll component of the annual inflation adjustment is calculated by
taking the average change in FDA's per-full time equivalent (FTE)
personnel compensation and benefits (PC&B) in the first 3 of the 4
previous fiscal years (see section 744K(c)(2)(A)(ii) of the FD&C Act).
FDA's total annual spending on PC&B is divided by the total number of
FTEs per fiscal year to determine the average PC&B per FTE.
Table 1 summarizes the actual cost and FTE data for the specified
fiscal years and provides the percent change from the previous fiscal
year and the average percent change over the first 3 of the 4 fiscal
years preceding FY 2023. The 3-year average is 1.3918 percent.
Table 1--FDA PC&Bs Each Year and Percent Change
----------------------------------------------------------------------------------------------------------------
3-Year
FY 2019 FY 2020 FY 2021 average
----------------------------------------------------------------------------------------------------------------
Total PC&B................................ $2,620,052,000 $2,875,592,000 $3,039,513,000 ..............
Total FTE................................. $17,144 $17,535 $18,501 ..............
PC&B per FTE.............................. $152,826 $163,992 $164,289 ..............
Percent Change From Prevous Year.......... -3.3120% 7.3063% 0.1811% 1.3918%
----------------------------------------------------------------------------------------------------------------
Section 744K(c)(2)(A)(ii) of the FD&C Act specifies that this
1.3918 percent should be multiplied by the proportion of PC&B to total
costs of an average FDA FTE for the same 3 fiscal years.
Table 2--FDA PC&Bs as a Percent of FDA Total Costs of an Average FTE
----------------------------------------------------------------------------------------------------------------
3-Year
FY 2019 FY 2020 FY 2021 average
----------------------------------------------------------------------------------------------------------------
Total PC&B................................ $2,620,052,000 $2,875,592,000 $3,039,513,000 ..............
Total Costs............................... $5,663,389,000 $6,039,320,747 $6,105,480,000 ..............
PC&B Percent.............................. 46.2630% 47.6145% 49.7834% 47.8870%
----------------------------------------------------------------------------------------------------------------
The payroll adjustment is 1.3918 percent multiplied by 47.8870
percent, or 0.6665 percent.
Section 744K(c)(2)(A)(iii) of the FD&C Act specifies that the
portion of the inflation adjustment for non-payroll costs for FY 2023
is equal to the average annual percent change in the Consumer Price
Index (CPI) for urban consumers (U.S. City Average; Not Seasonally
Adjusted; All items; Annual Index) for the first 3 years of the
preceding 4 years of available data, multiplied by the proportion of
all non-PC&B costs to total costs of an average FDA FTE for the same
period.
Table 2 provides the summary data for the percent change in the
specified CPI for U.S. cities. These data are published by the Bureau
of Labor Statistics and can be found on its website: <a href="https://data.bls.gov/cgi-bin/surveymost?cu">https://data.bls.gov/cgi-bin/surveymost?cu</a>. The data can be viewed by checking
the box marked ``U.S. city average, All items--CUUR0000SA0'' and then
selecting ``Retrieve Data.''
[[Page 45337]]
Table 3--Annual and 3-Year Average Percent Change in U.S. City Average CPI
----------------------------------------------------------------------------------------------------------------
3-Year
2019 2020 2021 average
----------------------------------------------------------------------------------------------------------------
Annual CPI...................................... 255.66 258.81 270.97 ..............
Annual Percent Change........................... 1.8120% 1.2337% 4.6980% 2.5812%
----------------------------------------------------------------------------------------------------------------
Section 744K(c)(2)(A)(iii) of the FD&C Act specifies that this
2.5812 percent should be multiplied by the proportion of all non-PC&B
costs to total costs of an average FTE for the same 3 fiscal years. The
proportion of all non-PC&B costs to total costs of an average FDA FTE
for FYs 2019 to 2021 is 52.1130 percent (100 percent minus 47.8870
percent equals 52.1130 percent). Therefore, the non-pay adjustment is
2.5812 percent times 52.1130 percent, or 1.3451 percent.
The PC&B component (0.6665 percent) is added to the non-PC&B
component (1.3451 percent), for a total inflation adjustment of 2.0116
percent (rounded). Section 744K(c)(2)(A)(i) of the FD&C Act specifies
that one is added to that figure, making the inflation adjustment
1.020116.
Section 744K(c)(2)(B) of the FD&C Act provides for this inflation
adjustment to be compounded after FY 2015. This factor for FY 2023
(2.0116 percent) is compounded by adding one to it, and then
multiplying it by one plus the inflation adjustment factor for FY 2022
(16.4796 percent), as published in the Federal Register on July 28,
2021 (86 FR 40588). The result of this multiplication of the inflation
factors for the 8 years since FY 2015 (1.020116 x 1.164796) becomes the
inflation adjustment for FY 2023. For FY 2023, the inflation adjustment
is 18.8227 percent (rounded). We then add one, making the FY 2023
inflation adjustment factor 1.188227.
2. Small Business Adjustment Factor
Section 744K(c)(3) of the FD&C Act specifies that in addition to
the inflation adjustment factor, the establishment fee for non-small
businesses is to be further adjusted for a small business adjustment
factor. Section 744K(c)(3)(B) of the FD&C Act provides that the small
business adjustment factor is the adjustment to the establishment fee
for non-small businesses that is necessary to achieve total fees
equaling the amount that FDA would have collected if no entity
qualified for the small business exception in section 744K(c)(4) of the
FD&C Act. Additionally, section 744K(c)(5)(A) states that in
establishing the small business adjustment factor for a fiscal year,
FDA shall provide for the crediting of fees from the previous year to
the next year if FDA overestimated the amount of the small business
adjustment factor for such previous fiscal year.
Therefore, to calculate the small business adjustment to the
establishment fee for non-small businesses for FY 2023, FDA must
estimate: (1) the number of outsourcing facilities that will pay the
reduced fee for small businesses for FY 2023 and (2) the total fee
revenue it would have collected if no entity had qualified for the
small business exception (i.e., if each entity that registers as an
outsourcing facility for FY 2023 were to pay the inflation-adjusted fee
amount of $17,823).
With respect to (1), FDA estimates that 10 entities will qualify
for small business exceptions and will pay the reduced fee for FY 2023.
With respect to (2), to estimate the total number of entities that will
register as outsourcing facilities for FY 2023, FDA used data submitted
by outsourcing facilities through the voluntary registration process,
which began in December 2013. Accordingly, FDA estimates that 78
outsourcing facilities, including 10 small businesses, will be
registered with FDA in FY 2023.
If the projected 78 outsourcing facilities paid the full inflation-
adjusted fee of $17,823, this would result in total revenue of
$1,390,194 in FY 2023 ($17,823 x 78). However, 10 of the entities that
are expected to register as outsourcing facilities for FY 2023 are
projected to qualify for the small business exception and to pay one-
third of the full fee ($5,941 x 10), totaling $59,410 instead of paying
the full fee ($17,823 x 10), which would total $178,230. This would
leave a potential shortfall of $118,820 ($178,230 minus $59,410).
Additionally, section 744K(c)(5)(A) of the FD&C Act states that in
establishing the small business adjustment factor for a fiscal year,
FDA shall provide for the crediting of fees from the previous year to
the next year if FDA overestimated the amount of the small business
adjustment factor for such previous fiscal year. FDA has determined
that it is appropriate to credit excess fees collected from the last
completed fiscal year, due to the inability to conclusively determine
the amount of excess fees from the fiscal year that is in progress at
the time this calculation is made. This crediting is done by comparing
the small business adjustment factor for the last completed fiscal
year, FY 2021 ($2,441), to what would have been the small business
adjustment factor for FY 2021 ($1,582) if FDA had estimated perfectly.
The calculation for what the small business adjustment would have
been if FDA had estimated perfectly begins by determining the total
target collections (15,000 x (inflation adjustment factor) x (number of
registrants). For the most recent complete fiscal year, FY 2021, this
was $1,400,970 ($17,085 x 82). The actual FY 2021 revenue from the 82
total registrants (i.e., 72 registrants paying FY 2021 non-small
business establishment fee and 10 small business registrants) paying
establishment fees is $1,287,070. $1,287,070 is calculated as follows:
(FY 2021 Non-Small Business Establishment Fee adjusted for inflation
only) x (total number of registrants in FY 2021 paying Non-Small
Business Establishment Fee) + (FY 2021 Small Business Establishment
Fee) x (total number of small business registrants in FY 2021 paying
Small Business Establishment Fee). $17,085 x 72 + $5,695 x 10 =
$1,287,070. This left a shortfall of $113,900 from the estimated total
target collection amount ($1,400,970 minus $1,287,070). This amount
($113,900) divided by the total number of registrants in FY 2021 paying
Standard Establishment Fee (72) equals $1,582.
The difference between the small business adjustment factor used in
FY 2021 and the small business adjustment factor that would have been
used had FDA estimated perfectly is $859 ($2,441 minus $1,582). The
$859 (rounded to the nearest dollar) is then multiplied by the number
of actual registrants who paid the standard fee for FY 2021 (72), which
provides us a total excess collection of $61,831 in FY 2021.
Therefore, to calculate the small business adjustment factor for FY
2023, FDA subtracts $61,831from the projected shortfall of $118,820 for
FY 2023 to arrive at the numerator for the small business adjustment
amount, which equals $56,989. This number divided by 68 (the number of
expected non-small businesses for FY 2023) is the
[[Page 45338]]
small business adjustment amount for FY 2023, which is $838 (rounded to
the nearest dollar).
B. FY 2023 Rates for Small Business Establishment Fee, Non-Small
Business Establishment Fee, and Reinspection Fee
1. Establishment Fee for Qualified Small Businesses \1\
---------------------------------------------------------------------------
\1\ To qualify for a small business reduction of the FY 2023
establishment fee, entities had to submit their exception requests
by April 30, 2022. See section 744K(c)(4)(B) of the FD&C Act. The
time for requesting a small business exception for FY 2023 has now
passed. An entity that wishes to request a small business exception
for FY 2024 should consult section 744K(c)(4) of the FD&C Act and
section III.D of FDA's guidance for industry entitled ``Fees for
Human Drug Compounding Outsourcing Facilities Under sections 503B
and 744K of the FD&C Act,'' which can be accessed on FDA's website
at <a href="https://www.fda.gov/media/136683/download">https://www.fda.gov/media/136683/download</a>.
---------------------------------------------------------------------------
The amount of the establishment fee for a qualified small business
is equal to $15,000 multiplied by the inflation adjustment factor for
that fiscal year, divided by 3 (see section 744K(c)(4)(A) and (c)(1)(A)
of the FD&C Act). The inflation adjustment factor for FY 2023 is
1.188227. See section II.A.1 of this document for the methodology used
to calculate the FY 2023 inflation adjustment factor. Therefore, the
establishment fee for a qualified small business for FY 2023 is one
third of $17,823, which equals $5,941 (rounded to the nearest dollar).
2. Establishment Fee for Non-Small Businesses
Under section 744K(c) of the FD&C Act, the amount of the
establishment fee for a non-small business is equal to $15,000
multiplied by the inflation adjustment factor for that fiscal year,
plus the small business adjustment factor for that fiscal year, and
plus or minus an adjustment factor to account for over or under
collections due to the small business adjustment factor in the prior
year. The inflation adjustment factor for FY 2023 is 1.188227. The
small business adjustment amount for FY 2023 is $838. See section
II.A.2 of this document for the methodology used to calculate the small
business adjustment factor for FY 2023. Therefore, the establishment
fee for a non-small business for FY 2023 is $15,000 multiplied by
1.188227plus $838, which equals $18,661 (rounded to the nearest
dollar).
3. Reinspection Fee
Section 744K(c)(1)(B) of the FD&C Act provides that the amount of
the FY 2023 reinspection fee is equal to $15,000, multiplied by the
inflation adjustment factor for that fiscal year. The inflation
adjustment factor for FY 2023 is 1.188227. Therefore, the reinspection
fee for FY 2023 is $15,000 multiplied by 1.188227, which equals $17,823
(rounded to the nearest dollar). There is no reduction in this fee for
small businesses.
C. Summary of FY 2023 Fee Rates
Table 4--Outsourcing Facility Fees
------------------------------------------------------------------------
------------------------------------------------------------------------
Qualified Small Business Establishment Fee.............. $5,941.00
Non-Small Business Establishment Fee.................... 18,661.00
Reinspection Fee........................................ 17,823.00
------------------------------------------------------------------------
III. Fee Payment Options and Procedures
A. Establishment Fee
Once an entity submits registration information and FDA has
determined that the information is complete, the entity will incur the
annual establishment fee. FDA will send an invoice to the entity, via
email to the email address indicated in the registration file. The
invoice will contain information regarding the obligation incurred, the
amount owed, and payment procedures. A facility will not be registered
as an outsourcing facility until it has paid the annual establishment
fee under section 744K of the FD&C Act. Accordingly, it is important
that facilities seeking to operate as outsourcing facilities pay all
fees immediately upon receiving an invoice. If an entity does not pay
the full invoiced amount within 15 calendar days after FDA issues the
invoice, FDA will consider the submission of registration information
to have been withdrawn and adjust the invoice to reflect that no fee is
due.
Outsourcing facilities that registered in FY 2022 and wish to
maintain their status as an outsourcing facility in FY 2023 must
register during the annual registration period that lasts from October
1, 2022, to December 31, 2022. Failure to register and complete payment
by December 31, 2022, will result in a loss of status as an outsourcing
facility on January 1, 2023. Entities should submit their registration
information no later than December 10, 2022, to allow enough time for
review of the registration information, invoicing, and payment of fees
before the end of the registration period.
B. Reinspection Fee
FDA will issue invoices for each reinspection after the conclusion
of the reinspection, via email to the email address indicated in the
registration file or via regular mail if email is not an option.
Invoices must be paid within 30 days.
C. Fee Payment Procedures
1. The preferred payment method is online using electronic check
(Automated Clearing House (ACH) also known as eCheck) or credit card
(Discover, VISA, MasterCard, American Express). Secure electronic
payments can be submitted using the User Fees Payment Portal at <a href="https://userfees.fda.gov/pay">https://userfees.fda.gov/pay</a>. (Note: only full payments are accepted. No
partial payments can be made online.) Once you search for your invoice,
click ``Pay Now'' to be redirected to <a href="http://Pay.gov">Pay.gov</a>. Electronic payment
options are based on the balance due. Payment by credit card is
available for balances less than $25,000. If the balance exceeds this
amount, only the ACH option is available. Payments must be made using
U.S. bank accounts as well as U.S. credit cards.
2. If paying with a paper check: Checks must be in U.S. currency
from a U.S. bank and made payable to the Food and Drug Administration.
Payments can be mailed to: Food and Drug Administration, P.O. Box
979033, St. Louis, MO 63197-9000. Include invoice number on check. If a
check is sent by a courier that requests a street address, the courier
can deliver the check to: U.S. Bank, Attn: Government Lockbox 979033,
1005 Convention Plaza, St. Louis, MO 63101. (Note: This U.S. Bank
address is for courier delivery only. If you have any questions
concerning courier delivery, contact the U.S. Bank at 314-418-4013).
3. When paying by wire transfer, the invoice number must be
included. Without the invoice number the payment may not be applied.
Regarding reinspection fees, if the payment amount is not applied, the
invoice amount will be referred to collections. The originating
financial institution may charge a wire transfer fee. If the financial
institution charges a wire transfer fee, it is required that the
outsourcing facility add that amount to the payment to ensure that the
invoice is paid in full. Use the following account information when
sending a wire transfer: U.S. Dept of the Treasury, TREAS NYC, 33
Liberty St., New York, NY 10045, Acct. No. 75060099, Routing No.
021030004, SWIFT: FRNYUS33. If needed, FDA's tax identification number
is 53-0196965.
[[Page 45339]]
Dated: July 22, 2022.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2022-16170 Filed 7-27-22; 8:45 am]
BILLING CODE 4164-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 28, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.