83_FR_49288 83 FR 49099 - John D. McCoy; Denial of Hearing; Final Debarment Order

83 FR 49099 - John D. McCoy; Denial of Hearing; Final Debarment Order

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 83, Issue 189 (September 28, 2018)

Page Range49099-49101
FR Document2018-21211

The Food and Drug Administration (FDA) is denying a request for a hearing submitted by John D. McCoy (McCoy) and is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) debarring McCoy for 4 years from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that McCoy was convicted of a misdemeanor under Federal law for conduct relating to the regulation of a drug product under the FD&C Act and that the conduct underlying the conviction undermines the process for the regulation of drugs. In determining the appropriateness and period of McCoy's debarment, FDA has considered the relevant factors listed in the FD&C Act. McCoy has failed to file with the Agency information and analyses sufficient to create a basis for a hearing concerning this action.

Federal Register, Volume 83 Issue 189 (Friday, September 28, 2018)
[Federal Register Volume 83, Number 189 (Friday, September 28, 2018)]
[Notices]
[Pages 49099-49101]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-21211]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2011-N-0613]


John D. McCoy; Denial of Hearing; Final Debarment Order

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Food and Drug Administration (FDA) is denying a request 
for a hearing submitted by John D. McCoy (McCoy) and is issuing an 
order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) 
debarring McCoy for 4 years from providing services in any capacity to 
a person that has an approved or pending drug product application. FDA 
bases this order on a finding that McCoy was convicted of a misdemeanor 
under Federal law for conduct relating to the regulation of a drug 
product under the FD&C Act and that the conduct underlying the 
conviction undermines the process for the regulation of drugs. In 
determining the appropriateness and period of McCoy's debarment, FDA 
has considered the relevant factors listed in the FD&C Act. McCoy has 
failed to file with the Agency information and analyses sufficient to 
create a basis for a hearing concerning this action.

DATES: The order is applicable September 28, 2018.

ADDRESSES: Any application for termination of debarment by McCoy under 
section 306(d) of the FD&C Act (application) may be submitted as 
follows:

Electronic Submissions

     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments. An application 
submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because 
your application will be made public, you are solely responsible for 
ensuring that your application 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 application, 
that information will be posted on https://www.regulations.gov.
     If you want to submit an application with confidential 
information that you do not wish to be made available to the public, 
submit the application 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:
     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.
     For a written/paper application submitted to the Dockets 
Management Staff, FDA will post your application, as well as any 
attachments, except for information submitted, marked and identified, 
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: Your application must include the Docket No. FDA-
2011-N-0613. An application will be placed in the docket and, unless 
submitted as

[[Page 49100]]

``Confidential Submissions,'' publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. 
and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit an application with 
confidential information that you do not wish to be made publicly 
available, submit your application 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 your application. The second copy, 
which will have the claimed confidential information redacted/blacked 
out, will be available for public viewing and posted on https://www.regulations.gov. 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 application 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: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket, go to https://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 Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, 
MD 20852 between 9 a.m. and 4 p.m., Monday through Friday. Publicly 
available submissions may be seen in the docket.

FOR FURTHER INFORMATION CONTACT: Rachael Vieder Linowes, Office of 
Scientific Integrity, Food and Drug Administration, 10903 New Hampshire 
Ave., Bldg. 1, Rm. 4206, Silver Spring, MD 20993, 240-402-5931.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 306(b)(2)(B)(i)(I) of the FD&C Act (21 U.S.C. 
335a(b)(2)(B)(i)(I)) permits FDA to debar an individual if it finds 
that: (1) The individual has been convicted of a misdemeanor under 
Federal law for conduct relating to the development or approval, 
including the process for development or approval, of a drug product or 
otherwise relating to the regulation of a drug product under the FD&C 
Act and (2) the type of conduct that served as the basis for the 
conviction undermines the process for the regulation of drugs.
    On April 20, 2009, in the U.S. District Court for the District of 
Arizona, McCoy pled guilty to a misdemeanor, namely adulterating a drug 
while held for sale after shipment in interstate commerce in violation 
of sections 301(k), 303(a)(1), and 501(d) of the FD&C Act (21 U.S.C. 
331(k), 333(a)(1) and 351(d)). The conduct underlying the conviction 
involved the adulteration of BOTOX[supreg]/BOTOX[supreg] Cosmetic 
(BOTOX[supreg]). BOTOX[supreg] is a biological product derived from 
Botulinum Toxin Type A that is manufactured by Allergan, Inc., and was 
approved by FDA for use on humans. Toxin Research International was an 
Arizona corporation that marketed and sold TRI-Toxin, a Botulinum Toxin 
Type A product that was neither approved nor licensed by FDA. According 
to the records of the criminal proceedings, McCoy, while a physician at 
Skinovative Laser Center, mixed FDA-approved BOTOX[supreg] with TRI-
toxin, while the BOTOX[supreg] was held for sale after shipment in 
interstate commerce, such that the BOTOX[supreg] was adulterated under 
section 501(d) of the FD&C Act.
    By letter dated October 24, 2011, FDA's Office of Regulatory 
Affairs (ORA) notified McCoy of its proposal to debar him for 4 years 
from providing services in any capacity to a person having an approved 
or pending drug product application. The proposal outlined findings 
concerning three relevant factors ORA considered in determining the 
appropriateness and period of debarment, as provided in section 
306(c)(3) of the FD&C Act. ORA found that the nature and seriousness of 
the offense and the nature and extent of voluntary steps to mitigate 
the effect on the public were unfavorable factors for McCoy. The 
absence of prior convictions involving matters within FDA's 
jurisdiction was a favorable factor. ORA concluded, ``Weighing all the 
factors, particularly the nature and seriousness of the conduct 
underlying your conviction, the Agency has determined that the 
unfavorable factors outweigh the favorable factors, and therefore 
warrant the imposition of a four year permissible debarment in this 
case.''
    In a letter dated November 23, 2011, through counsel, McCoy 
requested a hearing on the proposal. In his hearing request, McCoy 
argues that there are disputed issues of material fact that FDA must 
consider, under section 306(c)(3) of the FD&C Act, in determining the 
appropriateness and period of debarment. McCoy also indicated that 
additional information justifying the hearing would be forthcoming. 
More than 60 days have passed from the date McCoy received ORA's 
letter, and McCoy has not filed any additional information.
    Under the authority delegated to him by the Commissioner of Food 
and Drugs, the Director of the Office of Scientific Integrity (OSI) has 
considered McCoy's request for a hearing. Hearings are granted only if 
there is a genuine and substantial issue of fact. Hearings will not be 
granted on issues of policy or law, on mere allegations, denials or 
general descriptions of positions and contentions, or on data and 
information insufficient to justify the factual determination urged 
(see Sec.  12.24(b) (21 CFR 12.24(b))).
    OSI has considered McCoy's arguments and concludes that they are 
unpersuasive and fail to raise a genuine and substantial issue of fact 
requiring a hearing.

II. Arguments

    In his hearing request, McCoy first contends that there are 
disputed issues of material fact with respect to whether he voluntarily 
acted to mitigate the impact of his offense on the public (see section 
306(c)(3)(C) of the FD&C Act). ORA found no evidence that McCoy took 
any voluntary steps to mitigate the impact on the public. McCoy has not 
provided any specific allegations or evidence supporting his general 
assertion that the facts underlying ORA's findings are in dispute. 
Although McCoy indicated that he would submit additional information 
supporting his hearing request, he has not done so. Under Sec.  
12.24(b)(2), a hearing will not be granted on the basis of mere 
allegations or denials or general descriptions of positions and 
contentions. McCoy's bare assertion that there are disputed issues of 
fact with respect to that consideration fails to create a genuine and 
substantial issue of fact that warrants a hearing. Upon similar 
reasoning, McCoy's claim that the disputed issues of fact are not 
limited to those raised in his hearing request also falls far short of 
justifying a hearing.
    Finally, McCoy contends that there are disputed issues of material 
fact with respect to whether, under section 306(c)(3)(D) of the FD&C 
Act, the extent to which changes in ownership, management, or 
operations has corrected the causes of any offense involved and provide 
reasonable assurances that the offense will not

[[Page 49101]]

occur again. Yet, again, McCoy has not provided any specific 
allegations or evidence to challenge ORA's determination that this 
consideration does not apply to him. FDA need only address the 
considerations in section 306(c)(3) of the FD&C Act ``where 
applicable.'' The considerations in section 306(c)(3) of the FD&C Act 
are not only for individuals but also for corporations, partnerships, 
and associations subject to permissive debarment. The consideration at 
issue does not typically apply to individuals because individuals are 
incapable of changes in ownership or management and could only alter 
the current operations of a business enterprise in which they are 
currently engaged. Even assuming arguendo that an individual could 
point to changes in his or her current business practices as an 
applicable consideration under section 306(c)(3) of the FD&C Act, 
McCoy's unsubstantiated contention that there are disputed issues of 
fact with respect to that consideration fails to create a genuine and 
substantial issue of fact that warrants a hearing.
    Based on the factual findings in the proposal to debar and on the 
record, OSI finds that a 4-year debarment is appropriate. Although 
McCoy has no previous criminal convictions related to matters within 
the jurisdiction of FDA, this sole positive factor does not 
counterbalance the nature and seriousness of his offense and lack of 
voluntary steps taken to mitigate the effect on the public. As noted in 
the proposal to debar, McCoy's actions occurred on a repeated basis, 
and ``[his] conduct created a risk of injury to [his] patients . . ., 
undermined the Agency's oversight of an approved drug product, and 
seriously undermined the integrity of the Agency's regulation of drug 
products.''

III. Findings and Order

    Therefore, the Director of OSI, under section 306(b)(2)(B)(i)(I) of 
the FD&C Act and under authority delegated to him by the Commissioner 
of Food and Drugs, finds that: (1) McCoy has been convicted of a 
misdemeanor under Federal law for conduct relating to the development 
or approval, including the process for development or approval, of a 
drug product or otherwise relating to the regulation of a drug product 
under the FD&C Act and (2) the conduct which served as the basis for 
the conviction undermines the process for the regulation of drugs. FDA 
has considered the applicable factors listed in section 306(c)(3) of 
the FD&C Act and determined that a debarment of 4 years is appropriate.
    As a result of the foregoing findings, McCoy is debarred for 4 
years from providing services in any capacity to a person with an 
approved or pending drug product application under section 505, 512, or 
802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 
of the Public Health Service Act (42 U.S.C. 262), effective (see DATES) 
(21 U.S.C. 335a(c)(1)(B) and (c)(2)(A)(iii) and 21 U.S.C. 321(dd)). Any 
person with an approved or pending drug product application, who 
knowingly uses the services of McCoy, in any capacity during his period 
of debarment, will be subject to civil money penalties (section 
307(a)(6) of the FD&C Act (21 U.S.C. 335b(a)(6))). If McCoy, during his 
period of debarment, provides services in any capacity to a person with 
an approved or pending drug product application, he will be subject to 
civil money penalties (section 307(a)(7) of the FD&C Act). In addition, 
FDA will not accept or review any abbreviated new drug applications 
submitted by or with the assistance of McCoy during his period of 
debarment (section 306(c)(1)(B) of the FD&C Act).

    Dated: September 25, 2018.
George M. Warren,
Director, Office of Scientific Integrity.
[FR Doc. 2018-21211 Filed 9-27-18; 8:45 am]
 BILLING CODE 4164-01-P



                                                                                    Federal Register / Vol. 83, No. 189 / Friday, September 28, 2018 / Notices                                                                                   49099

                                              whether a 510(k) is appropriate for                                       practices regulation (21 CFR 10.115).                                  Information/default.htm. Persons
                                              review as a Special 510(k). In general, a                                 The draft guidance, when finalized, will                               unable to download an electronic copy
                                              change to an existing device may be                                       represent the current thinking of FDA                                  of ‘‘The Special 510(k) Program’’ may
                                              appropriate for a Special 510(k) when:                                    on ‘‘The Special 510(k) Program.’’ It                                  send an email request to CDRH-
                                              (1) The proposed change is made and                                       does not establish any rights for any                                  Guidance@fda.hhs.gov to receive an
                                              submitted by the manufacturer                                             person and is not binding on FDA or the                                electronic copy of the document. Please
                                              authorized to market the existing                                         public. You can use an alternative                                     use the document number 18008 to
                                              device; (2) performance data are                                          approach if it satisfies the requirements                              identify the guidance you are
                                              unnecessary, or if performance data are                                   of the applicable statutes and                                         requesting.
                                              necessary, well-established methods are                                   regulations. This guidance is not subject
                                              available to evaluate the change; and (3)                                 to Executive Order 12866.                                              IV. Paperwork Reduction Act of 1995
                                              all performance data necessary to
                                                                                                                        III. Electronic Access                                                   This draft guidance refers to
                                              support substantial equivalence can be
                                              reviewed in a summary or risk analysis                                       Persons interested in obtaining a copy                              previously approved collections of
                                              format.                                                                   of the draft guidance may do so by                                     information. These collections of
                                                 When finalized, this guidance will                                     downloading an electronic copy from                                    information are subject to review by the
                                              supersede the Special 510(k) policy in                                    the internet. A search capability for all                              Office of Management and Budget
                                              the 1998 guidance entitled ‘‘The New                                      Center for Devices and Radiological                                    (OMB) under the Paperwork Reduction
                                              510(k) Paradigm: Alternate Approaches                                     Health guidance documents is available                                 Act of 1995 (44 U.S.C. 3501–3520). The
                                              to Demonstrating Substantial                                              at http://www.fda.gov/MedicalDevices/                                  collections of information in the
                                              Equivalence in Premarket                                                  DeviceRegulationandGuidance/                                           following FDA regulations have been
                                              Notifications.’’                                                          GuidanceDocuments/default.htm. This                                    approved by OMB as listed in the
                                                                                                                        guidance document is also available at                                 following table:
                                              II. Significance of Guidance                                              https://www.regulations.gov or https://
                                                 This draft guidance is being issued                                    www.fda.gov/BiologicsBloodVaccines/
                                              consistent with FDA’s good guidance                                       GuidanceComplianceRegulatory

                                                                                                                                                                                                                                             OMB control
                                                  21 CFR part; guidance; or FDA form                                                                                     Topic                                                                  No.

                                              807, subpart E ..........................................          Premarket Notification ..................................................................................................     0910–0120
                                              801 ............................................................   Medical Device Labeling Regulations ..........................................................................                0910–0485
                                              820 ............................................................   Current Good Manufacturing Practice (CGMP); Quality System (QS) Regulation .....                                              0910–0073



                                                Dated: September 24, 2018.                                              FD&C Act and that the conduct                                          as a manufacturing process. Please note
                                              Leslie Kux,                                                               underlying the conviction undermines                                   that if you include your name, contact
                                              Associate Commissioner for Policy.                                        the process for the regulation of drugs.                               information, or other information that
                                              [FR Doc. 2018–21141 Filed 9–27–18; 8:45 am]                               In determining the appropriateness and                                 identifies you in the body of your
                                              BILLING CODE 4164–01–P
                                                                                                                        period of McCoy’s debarment, FDA has                                   application, that information will be
                                                                                                                        considered the relevant factors listed in                              posted on https://www.regulations.gov.
                                                                                                                        the FD&C Act. McCoy has failed to file                                    • If you want to submit an
                                              DEPARTMENT OF HEALTH AND                                                  with the Agency information and                                        application with confidential
                                              HUMAN SERVICES                                                            analyses sufficient to create a basis for                              information that you do not wish to be
                                                                                                                        a hearing concerning this action.                                      made available to the public, submit the
                                              Food and Drug Administration                                              DATES: The order is applicable                                         application as a written/paper
                                                                                                                        September 28, 2018.                                                    submission and in the manner detailed
                                              [Docket No. FDA–2011–N–0613]                                                                                                                     (see ‘‘Written/Paper Submissions’’ and
                                                                                                                        ADDRESSES: Any application for
                                                                                                                        termination of debarment by McCoy                                      ‘‘Instructions’’).
                                              John D. McCoy; Denial of Hearing;
                                              Final Debarment Order                                                     under section 306(d) of the FD&C Act                                   Written/Paper Submissions
                                                                                                                        (application) may be submitted as
                                              AGENCY:        Food and Drug Administration,                              follows:                                                                 Submit written/paper submissions as
                                              HHS.                                                                                                                                             follows:
                                                                                                                        Electronic Submissions                                                   • Mail/Hand delivery/Courier (for
                                              ACTION:      Notice.
                                                                                                                          • Federal eRulemaking Portal:                                        written/paper submissions): Dockets
                                              SUMMARY:   The Food and Drug                                              https://www.regulations.gov. Follow the                                Management Staff (HFA–305), Food and
                                              Administration (FDA) is denying a                                         instructions for submitting comments.                                  Drug Administration, 5630 Fishers
                                              request for a hearing submitted by John                                   An application submitted electronically,                               Lane, Rm. 1061, Rockville, MD 20852.
                                              D. McCoy (McCoy) and is issuing an                                        including attachments, to https://                                       • For a written/paper application
                                              order under the Federal Food, Drug, and                                   www.regulations.gov will be posted to                                  submitted to the Dockets Management
                                              Cosmetic Act (FD&C Act) debarring                                         the docket unchanged. Because your                                     Staff, FDA will post your application, as
                                              McCoy for 4 years from providing                                          application will be made public, you are                               well as any attachments, except for
amozie on DSK3GDR082PROD with NOTICES1




                                              services in any capacity to a person that                                 solely responsible for ensuring that your                              information submitted, marked and
                                              has an approved or pending drug                                           application does not include any                                       identified, as confidential, if submitted
                                              product application. FDA bases this                                       confidential information that you or a                                 as detailed in ‘‘Instructions.’’
                                              order on a finding that McCoy was                                         third party may not wish to be posted,                                   Instructions: Your application must
                                              convicted of a misdemeanor under                                          such as medical information, your or                                   include the Docket No. FDA–2011–N–
                                              Federal law for conduct relating to the                                   anyone else’s Social Security number, or                               0613. An application will be placed in
                                              regulation of a drug product under the                                    confidential business information, such                                the docket and, unless submitted as


                                         VerDate Sep<11>2014         19:22 Sep 27, 2018         Jkt 244001       PO 00000     Frm 00052       Fmt 4703      Sfmt 4703      E:\FR\FM\28SEN1.SGM            28SEN1


                                              49100                       Federal Register / Vol. 83, No. 189 / Friday, September 28, 2018 / Notices

                                              ‘‘Confidential Submissions,’’ publicly                  process for development or approval, of               306(c)(3) of the FD&C Act, in
                                              viewable at https://www.regulations.gov                 a drug product or otherwise relating to               determining the appropriateness and
                                              or at the Dockets Management Staff                      the regulation of a drug product under                period of debarment. McCoy also
                                              between 9 a.m. and 4 p.m., Monday                       the FD&C Act and (2) the type of                      indicated that additional information
                                              through Friday.                                         conduct that served as the basis for the              justifying the hearing would be
                                                 • Confidential Submissions—To                        conviction undermines the process for                 forthcoming. More than 60 days have
                                              submit an application with confidential                 the regulation of drugs.                              passed from the date McCoy received
                                              information that you do not wish to be                     On April 20, 2009, in the U.S. District            ORA’s letter, and McCoy has not filed
                                              made publicly available, submit your                    Court for the District of Arizona, McCoy              any additional information.
                                              application only as a written/paper                     pled guilty to a misdemeanor, namely                    Under the authority delegated to him
                                              submission. You should submit two                       adulterating a drug while held for sale               by the Commissioner of Food and
                                              copies total. One copy will include the                 after shipment in interstate commerce in              Drugs, the Director of the Office of
                                              information you claim to be confidential                violation of sections 301(k), 303(a)(1),              Scientific Integrity (OSI) has considered
                                              with a heading or cover note that states                and 501(d) of the FD&C Act (21 U.S.C.                 McCoy’s request for a hearing. Hearings
                                              ‘‘THIS DOCUMENT CONTAINS                                331(k), 333(a)(1) and 351(d)). The                    are granted only if there is a genuine
                                              CONFIDENTIAL INFORMATION.’’ The                         conduct underlying the conviction                     and substantial issue of fact. Hearings
                                              Agency will review this copy, including                 involved the adulteration of BOTOX®/                  will not be granted on issues of policy
                                              the claimed confidential information, in                BOTOX® Cosmetic (BOTOX®). BOTOX®                      or law, on mere allegations, denials or
                                              its consideration of your application.                  is a biological product derived from                  general descriptions of positions and
                                              The second copy, which will have the                    Botulinum Toxin Type A that is                        contentions, or on data and information
                                              claimed confidential information                        manufactured by Allergan, Inc., and was               insufficient to justify the factual
                                              redacted/blacked out, will be available                 approved by FDA for use on humans.                    determination urged (see § 12.24(b) (21
                                              for public viewing and posted on                        Toxin Research International was an                   CFR 12.24(b))).
                                              https://www.regulations.gov. Submit                     Arizona corporation that marketed and                   OSI has considered McCoy’s
                                              both copies to the Dockets Management                   sold TRI-Toxin, a Botulinum Toxin                     arguments and concludes that they are
                                              Staff. If you do not wish your name and                 Type A product that was neither                       unpersuasive and fail to raise a genuine
                                              contact information to be made publicly                 approved nor licensed by FDA.                         and substantial issue of fact requiring a
                                              available, you can provide this                         According to the records of the criminal              hearing.
                                              information on the cover sheet and not                  proceedings, McCoy, while a physician                 II. Arguments
                                              in the body of your application and you                 at Skinovative Laser Center, mixed
                                                                                                      FDA-approved BOTOX® with TRI-toxin,                      In his hearing request, McCoy first
                                              must identify this information as                                                                             contends that there are disputed issues
                                              ‘‘confidential.’’ Any information marked                while the BOTOX® was held for sale
                                                                                                      after shipment in interstate commerce,                of material fact with respect to whether
                                              as ‘‘confidential’’ will not be disclosed                                                                     he voluntarily acted to mitigate the
                                              except in accordance with 21 CFR 10.20                  such that the BOTOX® was adulterated
                                                                                                      under section 501(d) of the FD&C Act.                 impact of his offense on the public (see
                                              and other applicable disclosure law. For                                                                      section 306(c)(3)(C) of the FD&C Act).
                                                                                                         By letter dated October 24, 2011,
                                              more information about FDA’s posting                                                                          ORA found no evidence that McCoy
                                                                                                      FDA’s Office of Regulatory Affairs
                                              of comments to public dockets, see 80                                                                         took any voluntary steps to mitigate the
                                                                                                      (ORA) notified McCoy of its proposal to
                                              FR 56469, September 18, 2015, or access                                                                       impact on the public. McCoy has not
                                                                                                      debar him for 4 years from providing
                                              the information at: https://www.gpo.gov/                                                                      provided any specific allegations or
                                                                                                      services in any capacity to a person
                                              fdsys/pkg/FR-2015-09-18/pdf/2015-                                                                             evidence supporting his general
                                                                                                      having an approved or pending drug
                                              23389.pdf.                                                                                                    assertion that the facts underlying
                                                                                                      product application. The proposal
                                                 Docket: For access to the docket, go to                                                                    ORA’s findings are in dispute. Although
                                                                                                      outlined findings concerning three
                                              https://www.regulations.gov and insert                                                                        McCoy indicated that he would submit
                                                                                                      relevant factors ORA considered in
                                              the docket number, found in brackets in                                                                       additional information supporting his
                                                                                                      determining the appropriateness and
                                              the heading of this document, into the                                                                        hearing request, he has not done so.
                                                                                                      period of debarment, as provided in
                                              ‘‘Search’’ box and follow the prompts                   section 306(c)(3) of the FD&C Act. ORA                Under § 12.24(b)(2), a hearing will not
                                              and/or go to the Dockets Management                     found that the nature and seriousness of              be granted on the basis of mere
                                              Staff, 5630 Fishers Lane, Rm. 1061,                     the offense and the nature and extent of              allegations or denials or general
                                              Rockville, MD 20852 between 9 a.m.                      voluntary steps to mitigate the effect on             descriptions of positions and
                                              and 4 p.m., Monday through Friday.                      the public were unfavorable factors for               contentions. McCoy’s bare assertion that
                                              Publicly available submissions may be                   McCoy. The absence of prior                           there are disputed issues of fact with
                                              seen in the docket.                                     convictions involving matters within                  respect to that consideration fails to
                                              FOR FURTHER INFORMATION CONTACT:                        FDA’s jurisdiction was a favorable                    create a genuine and substantial issue of
                                              Rachael Vieder Linowes, Office of                       factor. ORA concluded, ‘‘Weighing all                 fact that warrants a hearing. Upon
                                              Scientific Integrity, Food and Drug                     the factors, particularly the nature and              similar reasoning, McCoy’s claim that
                                              Administration, 10903 New Hampshire                     seriousness of the conduct underlying                 the disputed issues of fact are not
                                              Ave., Bldg. 1, Rm. 4206, Silver Spring,                 your conviction, the Agency has                       limited to those raised in his hearing
                                              MD 20993, 240–402–5931.                                 determined that the unfavorable factors               request also falls far short of justifying
                                              SUPPLEMENTARY INFORMATION:                              outweigh the favorable factors, and                   a hearing.
                                                                                                      therefore warrant the imposition of a                    Finally, McCoy contends that there
                                              I. Background                                                                                                 are disputed issues of material fact with
                                                                                                      four year permissible debarment in this
amozie on DSK3GDR082PROD with NOTICES1




                                                 Section 306(b)(2)(B)(i)(I) of the FD&C               case.’’                                               respect to whether, under section
                                              Act (21 U.S.C. 335a(b)(2)(B)(i)(I))                        In a letter dated November 23, 2011,               306(c)(3)(D) of the FD&C Act, the extent
                                              permits FDA to debar an individual if it                through counsel, McCoy requested a                    to which changes in ownership,
                                              finds that: (1) The individual has been                 hearing on the proposal. In his hearing               management, or operations has
                                              convicted of a misdemeanor under                        request, McCoy argues that there are                  corrected the causes of any offense
                                              Federal law for conduct relating to the                 disputed issues of material fact that                 involved and provide reasonable
                                              development or approval, including the                  FDA must consider, under section                      assurances that the offense will not


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                                                                          Federal Register / Vol. 83, No. 189 / Friday, September 28, 2018 / Notices                                         49101

                                              occur again. Yet, again, McCoy has not                    As a result of the foregoing findings,              Answers to commonly asked questions
                                              provided any specific allegations or                    McCoy is debarred for 4 years from                    including information regarding special
                                              evidence to challenge ORA’s                             providing services in any capacity to a               accommodations due to a disability,
                                              determination that this consideration                   person with an approved or pending                    visitor parking, and transportation may
                                              does not apply to him. FDA need only                    drug product application under section                be accessed at: https://www.fda.gov/
                                              address the considerations in section                   505, 512, or 802 of the FD&C Act (21                  AdvisoryCommittees/AboutAdvisory
                                              306(c)(3) of the FD&C Act ‘‘where                       U.S.C. 355, 360b, or 382), or under                   Committees/ucm408555.htm.
                                              applicable.’’ The considerations in                     section 351 of the Public Health Service                 For those unable to attend in person,
                                              section 306(c)(3) of the FD&C Act are                   Act (42 U.S.C. 262), effective (see DATES)            the meeting will also be webcast and
                                              not only for individuals but also for                   (21 U.S.C. 335a(c)(1)(B) and (c)(2)(A)(iii)           will be available at the following link:
                                              corporations, partnerships, and                         and 21 U.S.C. 321(dd)). Any person                    https://collaboration.fda.gov/
                                              associations subject to permissive                      with an approved or pending drug                      vrbpac1118/.
                                              debarment. The consideration at issue                   product application, who knowingly                    FOR FURTHER INFORMATION CONTACT:
                                              does not typically apply to individuals                 uses the services of McCoy, in any                    Serina Hunter-Thomas, Center for
                                              because individuals are incapable of                    capacity during his period of                         Biologics Evaluation and Research,
                                              changes in ownership or management                      debarment, will be subject to civil                   Food and Drug Administration, 10903
                                              and could only alter the current                        money penalties (section 307(a)(6) of the             New Hampshire Ave., Bldg. 71, Rm.
                                              operations of a business enterprise in                  FD&C Act (21 U.S.C. 335b(a)(6))). If                  6338, Silver Spring, MD 20993–0002,
                                              which they are currently engaged. Even                  McCoy, during his period of debarment,                240–402–5771, serina.hunter-thomas@
                                              assuming arguendo that an individual                    provides services in any capacity to a                fda.hhs.gov or FDA Advisory Committee
                                              could point to changes in his or her                    person with an approved or pending                    Information Line, 1–800–741–8138
                                              current business practices as an                        drug product application, he will be                  (301–443–0572 in the Washington, DC
                                              applicable consideration under section                  subject to civil money penalties (section             area). A notice in the Federal Register
                                              306(c)(3) of the FD&C Act, McCoy’s                      307(a)(7) of the FD&C Act). In addition,              about last minute modifications that
                                              unsubstantiated contention that there                   FDA will not accept or review any                     impact a previously announced
                                              are disputed issues of fact with respect                abbreviated new drug applications                     advisory committee meeting cannot
                                              to that consideration fails to create a                 submitted by or with the assistance of                always be published quickly enough to
                                              genuine and substantial issue of fact                   McCoy during his period of debarment                  provide timely notice. Therefore, you
                                              that warrants a hearing.                                (section 306(c)(1)(B) of the FD&C Act).               should always check the Agency’s
                                                 Based on the factual findings in the
                                                                                                        Dated: September 25, 2018.                          website at https://www.fda.gov/
                                              proposal to debar and on the record, OSI
                                                                                                      George M. Warren,                                     AdvisoryCommittees/default.htm and
                                              finds that a 4-year debarment is
                                                                                                      Director, Office of Scientific Integrity.             scroll down to the appropriate advisory
                                              appropriate. Although McCoy has no
                                                                                                                                                            committee meeting link, or call the
                                              previous criminal convictions related to                [FR Doc. 2018–21211 Filed 9–27–18; 8:45 am]
                                                                                                                                                            advisory committee information line to
                                              matters within the jurisdiction of FDA,                 BILLING CODE 4164–01–P
                                                                                                                                                            learn about possible modifications
                                              this sole positive factor does not
                                                                                                                                                            before coming to the meeting.
                                              counterbalance the nature and
                                              seriousness of his offense and lack of                  DEPARTMENT OF HEALTH AND                              SUPPLEMENTARY INFORMATION:
                                              voluntary steps taken to mitigate the                   HUMAN SERVICES                                           Agenda: On November 8, 2018, the
                                              effect on the public. As noted in the                                                                         Center for Biologics Evaluation and
                                              proposal to debar, McCoy’s actions                      Food and Drug Administration                          Research’s (CBER) VRBPAC committee
                                              occurred on a repeated basis, and ‘‘[his]                                                                     will meet in open session to hear an
                                                                                                      [Docket No. FDA–2018–N–3424]
                                              conduct created a risk of injury to [his]                                                                     overview of the research program in the
                                              patients . . ., undermined the Agency’s                 Vaccines and Related Biological                       Laboratory of DNA Viruses (LDV),
                                              oversight of an approved drug product,                  Products Advisory Committee; Notice                   Division of Viral Products (DVP), Office
                                              and seriously undermined the integrity                  of Meeting                                            of Vaccines Research and Review
                                              of the Agency’s regulation of drug                                                                            (OVRR), CBER, FDA. FDA intends to
                                              products.’’                                             AGENCY:    Food and Drug Administration,              make background material available to
                                                                                                      HHS.                                                  the public no later than 2 business days
                                              III. Findings and Order                                 ACTION:   Notice.                                     before the meeting. If FDA is unable to
                                                 Therefore, the Director of OSI, under                                                                      post the background material on its
                                              section 306(b)(2)(B)(i)(I) of the FD&C                  SUMMARY:   The Food and Drug                          website prior to the meeting, the
                                              Act and under authority delegated to                    Administration (FDA) announces a                      background material will be made
                                              him by the Commissioner of Food and                     forthcoming public advisory committee                 publicly available at the location of the
                                              Drugs, finds that: (1) McCoy has been                   meeting of the Vaccines and Related                   advisory committee meeting, and the
                                              convicted of a misdemeanor under                        Biological Products Advisory                          background material will be posted on
                                              Federal law for conduct relating to the                 Committee (VRBPAC). The general                       FDA’s website after the meeting.
                                              development or approval, including the                  function of the committee is to provide               Background material is available at
                                              process for development or approval, of                 advice and recommendations to the                     https://www.fda.gov/Advisory
                                              a drug product or otherwise relating to                 Agency on FDA’s regulatory issues. At                 Committees/Calendar/default.htm.
                                              the regulation of a drug product under                  least one portion of the meeting will be              Scroll down to the appropriate advisory
                                              the FD&C Act and (2) the conduct which                  closed to the public.                                 committee meeting link.
amozie on DSK3GDR082PROD with NOTICES1




                                              served as the basis for the conviction                  DATES: The meeting will be held on                       Procedure: On November 8, 2018,
                                              undermines the process for the                          November 8, 2018, from 11 a.m. to 2:45                from 11 a.m. to 1:50 p.m., the meeting
                                              regulation of drugs. FDA has considered                 p.m.                                                  is open to the public. Interested persons
                                              the applicable factors listed in section                ADDRESSES: FDA White Oak Campus,                      may present data, information, or views,
                                              306(c)(3) of the FD&C Act and                           10903 New Hampshire Ave., Bldg. 31                    orally or in writing, on issues pending
                                              determined that a debarment of 4 years                  Conference Center, the Great Room (Rm.                before the committee. Written
                                              is appropriate.                                         1503), Silver Spring, MD 20993–0002.                  submissions may be made to the contact


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Document Created: 2018-09-28 01:23:19
Document Modified: 2018-09-28 01:23:19
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
DatesThe order is applicable September 28, 2018.
ContactRachael Vieder Linowes, Office of Scientific Integrity, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4206, Silver Spring, MD 20993, 240-402-5931.
FR Citation83 FR 49099 

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