[Federal Register: August 24, 2007 (Volume 72, Number 164)]
[Rules and Regulations]               
[Page 48765-48801]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au07-12]                         


[[Page 48765]]

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Part III





Department of Health and Human Services





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Food and Drug Administration



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21 CFR Parts 606 and 610



Current Good Manufacturing Practice for Blood and Blood Components; 
Notification of Consignees and Transfusion Recipients Receiving Blood 
and Blood Components at Increased Risk of Transmitting Hepatitis C 
Virus Infection (``Lookback''); Final Rule


[[Page 48766]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Parts 606 and 610

[Docket No. 1999N-2337 (formerly Docket No. 99N-2337)]
RIN 0910-AB76

 
Current Good Manufacturing Practice for Blood and Blood 
Components; Notification of Consignees and Transfusion Recipients 
Receiving Blood and Blood Components at Increased Risk of Transmitting 
Hepatitis C Virus Infection (``Lookback'')

AGENCY:  Food and Drug Administration, HHS.

ACTION:  Final rule.

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SUMMARY:  The Food and Drug Administration (FDA) is requiring 
establishments collecting Whole Blood or blood components, including 
Source Plasma and Source Leukocytes, to establish, maintain, and follow 
an appropriate system for identifying blood and blood components 
previously donated by a donor who tests reactive for evidence of 
hepatitis C virus (HCV) infection on a subsequent donation identified 
either by current testing or after a review of historical testing 
records, or when the collecting establishment is made aware of other 
reliable test results or information indicating evidence of HCV 
infection. Such collections may be at increased risk of transmitting 
HCV infection. FDA is requiring collecting establishments to quarantine 
prior in-date blood and blood components from such a donor, to notify 
consignees of prior in-date blood and blood components from such a 
donor for quarantine purposes, and to perform further testing on the 
donor. FDA is also requiring consignees to notify transfusion 
recipients of blood and blood components from such a donor, as 
appropriate. In addition, FDA is revising the human immunodeficiency 
virus (HIV) ``lookback'' requirements for greater consistency with the 
HCV ``lookback'' requirements, and extending the record retention 
period to 10 years. FDA is taking this action to help ensure the 
continued safety of the blood supply and to help ensure that 
information is provided to recipients of blood and blood components 
that may have been at increased risk of transmitting HIV or HCV 
infection. Elsewhere in this issue of the Federal Register, FDA is 
announcing the availability of a guidance document entitled ``Guidance 
for Industry: `Lookback' for Hepatitis C Virus (HCV): Product 
Quarantine, Consignee Notification, Further Testing, Product 
Disposition, and Notification of Transfusion Recipients Based on Donor 
Test Results Indicating Infection with HCV'' (the ``lookback'' 
guidance). We are also issuing this final rule in conjunction with a 
companion interim final rule published by the Centers for Medicare and 
Medicaid Services (CMS) elsewhere in this issue of the Federal 
Register.

DATES:  This rule is effective February 20, 2008.

FOR FURTHER INFORMATION CONTACT:  Stephen M. Ripley, Center for 
Biologics Evaluation and Research (HFM-17), Food and Drug 
Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-
1448, 301-827-6210.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
    A. Background
    B. Legal Authority
II. Highlights and Summary of the Final Rule
    A. Restructuring of the Proposed Rule
    B. Summary of the Final Rule
    C. Changes to Related Regulations
III. Comments on the Proposed Rule and FDA's Responses
    A. General Comments
    B. Records
    C. HIV and HCV ``Lookback''
IV. Analysis of Impacts
    A. Economic Impact\3\
    B. Benefits of the Final Rule
    C. Impact on Small Entities
V. The Paperwork Reduction Act of 1995
    A. Annual Reporting Burden
    B. Estimated One-Time Reporting Burden
    C. Estimated Annual and One-Time Recordkeeping Burden
VI. Environmental Impact
VII. Federalism
VIII. References

I. Introduction

A. Background

    As a result of extensive screening and testing procedures and other 
layers of safety used to help ensure a safe blood supply, the risk of 
transmitting infection through blood transfusion is very low. Despite 
the best practices of blood establishments\1\, however, a person may 
donate blood and blood components early in an infection, during the 
period when the testable marker is not detectable by a screening test, 
but the infectious agent is present in the donor's blood (a ``window'' 
period). Such products are considered as having an increased risk of 
transmitting infection. We are issuing this final rule to help ensure 
the continued safety of the blood supply and to help ensure that 
information is provided to recipients of blood and blood components 
possibly donated during a ``window'' period, which therefore may be at 
increased risk of transmitting infection.
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    \1\ The term ``establishment'' is defined in FDA's blood 
regulations at 21 CFR 607.3(c).
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    Chronic hepatitis due to HCV is a major health problem in the 
United States. The infection is usually asymptomatic for decades 
despite possible progression. Thus, individuals with chronic, active 
hepatitis C can remain unaware that they have a serious infection until 
symptoms develop late in the course of the disease. Five to twenty 
percent of infected persons might develop cirrhosis of the liver over a 
period of 20 to 30 years and one to five percent might die from the 
consequences of long term infection (liver cancer or cirrhosis). As a 
result, infected people typically are unaware of their disease. 
Although transfusion-transmitted infections account for only a small 
proportion of HCV infections, it is possible to identify and 
``lookback'' at prior donations collected during the ``window'' period 
from donors later identified as reactive on a test for evidence of HCV 
infection. Further information on existing donor screening and testing 
requirements and a history of HCV testing is provided in the proposed 
rule entitled ``Current Good Manufacturing Practice for Blood and Blood 
Components; Notification of Consignees and Transfusion Recipients 
Receiving Blood and Blood Components at Increased Risk of Transmitting 
HCV Infection (`Lookback')'' (the HCV ``lookback'' proposed rule) 
(November 16, 2000, 65 FR 69378 at 69379).
    In an August 1993 memorandum to all registered blood establishments 
entitled ``Revised Recommendations for Testing Whole Blood, Blood 
Components, Source Plasma and Source Leukocytes for Antibody to 
Hepatitis C Virus Encoded Antigen (Anti-HCV),'' we did not recommend a 
``lookback'' program, pending the outcome of discussions on the issue 
at the December 1993 Blood Product Advisory Committee (BPAC) meeting. 
Following the discussions on HCV at the meeting in December 1993, the 
BPAC unanimously recommended product quarantine of prior collections 
from a donor who later tests repeatedly reactive for antibody to HCV 
and tests positive or indeterminate on a supplemental (additional, more 
specific) test.

[[Page 48767]]

However, BPAC only marginally endorsed consignee\2\ notification for 
the purpose of transfusion recipient notification, and reiterated many 
of the reservations regarding the lack of an established public health 
benefit in performing this activity. We issued in July 1996 a 
memorandum to all registered blood establishments entitled 
``Recommendations for the Quarantine and Disposition of Units from 
Prior Collections from Donors with Repeatedly Reactive Screening Tests 
for Hepatitis B Virus (HBV), Hepatitis C Virus (HCV), and Human T-
Lymphotropic Virus Type I (HTLV-I)'' (the July 1996 memorandum). The 
July 1996 memorandum recommended testing, consignee notification, and 
quarantine of affected products, but did not provide recommendations 
for the notification of recipients of such donations because the public 
health benefit of such notification was not clear.
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    \2\ We use the term ``consignee'' to refer to the person or 
entity to whom the blood is shipped.
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    The Department of Health and Human Services Advisory Committee on 
Blood Safety and Availability (the HHS Advisory Committee) discussed 
improvements in the treatment and management of HCV infection and 
improvements in testing for antibody to HCV at public meetings held on 
April 24 and 25, 1997, and August 11 and 12, 1997. The DHHS Advisory 
Committee discussed the public health benefits of notification of 
transfusion recipients receiving prior collections from a donor who 
subsequently tests reactive for evidence of HCV infection and made 
recommendations for HCV ``lookback.'' Following acceptance by the 
Department of Health and Human Services (DHHS) of the DHHS Advisory 
Committee's recommendations for HCV ``lookback,'' we issued a notice in 
the Federal Register of March 20, 1998 (63 FR 13675), announcing the 
availability of a document entitled ``Guidance for Industry: 
Supplemental Testing and the Notification of Consignees of Donor Test 
Results for Antibody to Hepatitis C Virus (Anti-HCV)'' (the March 1998 
guidance) in which we recommended that blood establishments implement 
HCV ``lookback'' procedures. In the March 1998 guidance, we recommended 
that donors currently testing repeatedly reactive for antibody to HCV 
by a licensed test be further tested for antibody to HCV using a 
licensed, multi-antigen supplemental test. Additionally, we recommended 
that consignees of certain blood and blood components collected since 
January 1, 1988, which were anti-HCV negative or untested, be notified 
when donors subsequently test repeatedly reactive for anti-HCV by a 
licensed multiantigen-based antibody screening test and reactive by a 
licensed or investigational supplemental test. This notification would 
enable consignees to inform recipients that they were transfused with 
units that may have contained HCV, so that they might obtain further 
medical counseling and treatment. The March 1998 guidance provided our 
recommendations for donor screening, a review of past testing records, 
further testing for antibody to HCV, notification of consignees, and 
transfusion recipient notification and counseling by physicians 
regarding transfusion with blood or blood components at increased risk 
of transmitting HCV. The March 1998 guidance was intended to supplement 
the July 1996 memorandum.
    In response to comments received, the March 1998 guidance was 
withdrawn on September 8, 1998, and we issued a revised guidance dated 
September 1998, on October 21, 1998 (63 FR 56198), entitled ``Guidance 
for Industry: Current Good Manufacturing Practice for Blood and Blood 
Components: (1) Quarantine and Disposition of Units From Prior 
Collections From Donors With Repeatedly Reactive Screening Test for 
Antibody to Hepatitis C Virus (Anti-HCV); (2) Supplemental Testing, and 
the Notification of Consignees and Blood Recipients of Donor Test 
Results for Anti-HCV,'' (the September 1998 guidance). The September 
1998 guidance provided recommendations to enable quarantine and 
disposition of blood and blood components from prior collections from 
donors with repeatedly reactive screening test results.
    The September 1998 guidance addressed several significant comments 
and requests from industry:
     We revised several time periods for ``lookback'' actions 
in response to concerns about the impact on industry and the need for 
additional time for testing due to availability problems with certain 
test kits, and to allow time for the completion of physician education 
(ensuring that counseling messages would be available for use in 
notification of recipients);
     We clarified options for further testing with an HCV 
enzyme linked immunosorbent assay 3.0 (HCV EIA 3.0 screening test);
     We clarified our recommendations on labeling of the blood 
and blood components released from quarantine and for consistency with 
existing regulations on product labeling;
     We provided flow chart diagrams to assist industry in 
implementing procedures contained in the guidance; and
     We recommended the option of transfusion services 
notifying the transfusion recipient directly as an alternative to 
notifying the transfusion recipient's physician of record, to permit 
easier, more rapid notification of the recipient.
    At public meetings on November 24, 1998, and January 28, 1999, the 
DHHS Advisory Committee reconsidered the issue of recipient 
notification related to repeatedly reactive results by the single 
antigen-based antibody screening test. The DHHS Advisory Committee 
recommended that targeted ``lookback'' be initiated based on a 
repeatedly reactive HCV EIA 1.0 screening test result on a repeat donor 
except in the following conditions: (1) A supplemental (additional, 
more specific) test was performed and the result did not indicate 
increased risk of HCV infection; (2) in the absence of a supplemental 
test result, the signal to cut-off (S[sol]CO) value of the repeatedly 
reactive HCV EIA 1.0 screening test was less than 2.5; or (3) followup 
testing of the donor was negative. We published a notice in the Federal 
Register of June 22, 1999 (64 FR 33309), announcing the availability of 
a draft guidance entitled ``Draft Guidance for Industry: Current Good 
Manufacturing Practice for Blood and Blood Components: (1) Quarantine 
and Disposition of Prior Collections from Donors with Repeatedly 
Reactive Screening Tests for Hepatitis C Virus (HCV); (2) Supplemental 
Testing, and the Notification of Consignees and Transfusion Recipients 
of Donor Test Results for Antibody to HCV (Anti-HCV)'' (the June 1999 
draft guidance). Consistent with the recommendations of the DHHS 
Advisory Committee, this revised draft guidance addressed ``lookback'' 
actions related to donor screening by HCV EIA 1.0 and also recommended 
that the search of historical test records of prior donations from 
donors with repeatedly reactive EIA 1.0, EIA 2.0, or EIA 3.0 screening 
tests for HCV should extend back indefinitely to the extent that 
electronic records exist. In addition, we revised the flowchart 
diagrams to reflect the changes to the guidance. We added specific 
recommendations for prior collections from a repeatedly reactive 
autologous donor and clarified recommendations on implementing 
``lookback'' for repeatedly reactive plasma donations.
    On November 16, 2000, FDA and the Health Care Financing 
Administration, now known as the Centers for Medicare and Medicaid 
Services (CMS), issued proposed rules that would further

[[Page 48768]]

protect the blood supply and notify recipients of the possibility that 
they may have received blood or blood components with an increased risk 
of transmitting HCV. FDA's HCV ``lookback'' proposed rule, along with 
CMS's companion proposed rule (November 16, 2000, 65 FR 69416), 
proposed to require establishments involved in the collection, 
processing, and distribution of blood and blood components to 
quarantine certain blood and blood components and to inform the 
consignee. The consignee, as appropriate, would inform the recipient's 
physician of record or the recipient of the possibility that blood used 
for transfusion was obtained from a donor who subsequently tested 
repeatedly reactive for antibody to HCV.
    Elsewhere in this issue of the Federal Register, we are announcing 
the availability of a guidance document entitled ``Guidance for 
Industry: `Lookback' for Hepatitis C Virus (HCV): Product Quarantine, 
Consignee Notification, Further Testing, Product Disposition, and 
Notification of Transfusion Recipients Based on Donor Test Results 
Indicating Infection with HCV'' (the ``lookback'' guidance). We 
prepared the ``lookback'' guidance based on comments received on the 
June 1999 draft guidance and comments received on the HCV ``lookback'' 
proposed rule and issued the guidance document for implementation by 
the agency. The guidance document does not create or impose any legal 
rights or requirements, rather, it represents our current thinking on 
methods for satisfying the requirements now imposed by this rule and 
addresses actions that could be taken based on results of screening and 
supplemental testing. It supercedes the September 1998 guidance and the 
HCV sections of the July 1996 memorandum.

B. Legal Authority

    We are issuing this final rule under the authority of sections 351 
and 361 of the Public Health Service Act (the PHS Act) (42 U.S.C. 262 
and 264) and the provisions of the Federal Food, Drug, and Cosmetic Act 
(the act), which apply to drugs (section 201 of the act et seq. (21 
U.S.C. 321 et seq.)). Under section 361 of the PHS Act, by delegation 
from the Secretary of Health and Human Services, we may make and 
enforce regulations necessary to prevent the introduction, 
transmission, and spread of communicable disease between the States or 
from foreign countries into the States. Intrastate transactions may 
also be regulated under section 361 of the PHS Act. (See Louisiana v. 
Mathew, 427 F. Supp. 174, 176 (E. D. La. 1977).) Because a major 
purpose of the HCV ``lookback'' final rule is to prevent the 
introduction, transmission, and spread of HCV, a communicable disease, 
section 361 of the PHS Act provides the primary legal authority for 
this final rule, including the rule's provisions on standard operating 
procedures, records, donor deferral, and ``lookback'' requirements, for 
manufacturers, including collecting establishments, and consignees.
    All blood and blood components introduced or delivered for 
introduction into interstate commerce also are subject to section 351 
of the PHS Act. Section 351(a) requires that manufacturers of 
biological products, which include blood and blood components intended 
for further manufacture into injectable products, have a license, 
issued upon a demonstration that the product is safe, pure, and potent 
and that the manufacturing establishment meets all applicable 
standards, including those prescribed in the FDA regulations, designed 
to ensure the continued safety, purity, and potency of the blood. 
Moreover, section 351(a)(2)(A) of the PHS Act gives us, by delegation 
from the Secretary of Health and Human Services, authority to 
establish, by regulation, requirements for the approval, suspension, 
and revocation of biologics licenses. This final rule establishes such 
requirements for blood and blood components intended for further 
manufacture into injectable products.
    Our license revocation regulations provide that we may initiate 
revocation proceedings, among other reasons, if an establishment or 
product fails to conform to the standards in the license application or 
in the regulations designed to ensure the continued safety, purity, or 
potency of the product (21 CFR 601.5). The requirements of this final 
rule are designed to ensure the continued safety, purity and potency of 
donated blood and blood products. Section 351 of the PHS Act also 
provides for civil and criminal penalties for violation of the laws 
governing biological products. Violations can be punishable by fines, 
imprisonment, or both.
    Section 351(j) of the PHS Act states that the Federal, Food, Drug, 
and Cosmetic Act also applies to biological products. Blood and blood 
components for transfusion or for further manufacture into injectable 
products are drugs, as that term is defined in section 201(g)(1) of the 
act. (See United States v. Calise, 217 F. Supp. 705, 709 (S.D.N.Y. 
1962)). Because blood and blood components are drugs under the act, 
blood and plasma establishments must comply with the substantive 
provisions and related regulatory scheme of the act. For example, under 
section 501 of the act (21 U.S.C. 351), drugs are deemed 
``adulterated'' if the methods used in their manufacturing, processing, 
packing, or holding do not conform to current good manufacturing 
practice (CGMP). Under this final rule, the CGMP regulations for 
manufacturers of blood and blood components are amended to require 
those establishments to develop standard operating procedures (SOPs) 
for HCV ``lookback,'' identification, quarantine of affected blood and 
blood components, and consignee and transfusion recipient notification. 
A blood or plasma establishment that fails to comply with HCV 
``lookback'' procedures would not be in compliance with CGMP 
requirements and, therefore, would be subject to the act's enforcement 
provisions.

II. Highlights and Summary of the Final Rule

    We are issuing this final rule in conjunction with a companion 
interim final rule published by CMS elsewhere in this issue of the 
Federal Register. This final rule and the CMS interim final rule 
provide steps designed to further protect the blood supply and to 
notify recipients of the possibility that they may have received blood 
or blood components at increased risk of transmitting HIV or HCV. The 
phrase ``blood and blood components,'' as used in this rulemaking, 
includes Source Plasma and Source Leukocytes.

A. Restructuring of the Proposed Rule

    After careful review of the proposed rule, and in response to 
comments submitted to the docket, we have revised the codified section 
of the proposed rule as follows:
     We combined proposed Sec. Sec.  610.46 and 610.47 into 
requirements under new Sec.  610.46 for prospective HIV ``lookback.''
     We combined proposed Sec. Sec.  610.48 and 610.49 into 
requirements under new Sec.  610.47 for prospective HCV ``lookback.''
     We removed the requirements for retrospective HCV 
``lookback'' from proposed Sec. Sec.  610.48 and 610.49 and placed them 
under new Sec.  610.48.
     Each section separates provisions for collecting 
establishments and for consignees.
     The codified section lists objective actions and 
eliminates the prescriptive language in the proposed rule.
     The sections for prospective HIV and HCV ``lookback'' 
(Sec. Sec.  610.46 and 610.47) are analogous in their requirements.

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     The final rule establishes a ``cut-off'' date for 
retrospective HCV ``lookback.''

B. Summary of the Final Rule

1. HIV and HCV ``Lookback'' (Sec. Sec.  610.46 and 610.47, 
respectively)
    a. Responsibilities of the collecting establishment. In Sec. Sec.  
610.46 and 610.47, respectively, the final rule requires collecting 
establishments to establish, maintain, and follow an appropriate system 
for performing HIV and HCV prospective ``lookback'' when a donor tests 
reactive for evidence of HIV or HCV infection (see Sec.  610.40(a) and 
(b) (21 CFR 610.40(a) and (b))), or when the collecting establishment 
becomes aware of other reliable test results or information indicating 
evidence of HIV or HCV infection (``prospective lookback'') (Sec. Sec.  
610.46(a)(1) and 610.47(a)(1)). The requirement for ``an appropriate 
system'' states the intention of the requirement and replaces the more 
prescriptive language of the proposed rule. This provision requires the 
collecting establishment to design SOPs to identify and quarantine all 
blood and blood components previously collected from a donor who later 
tests reactive for evidence of HIV or HCV infection, or when the 
collecting establishment is made aware of other reliable test results 
or information indicating evidence of HIV or HCV infection (see section 
II.C.4 of this document for further discussion of the term 
``reactive''). Within 3 calendar days of the donor testing reactive by 
an HIV or HCV screening test or the collecting establishment becoming 
aware of other reliable test results or information, the collecting 
establishment must take the following actions:
     Review all records, required to be maintained under Sec.  
606.160(d), to identify blood and blood components previously donated 
by such a donor. For those blood and blood components collected 12 
months and less before the donor's most recent nonreactive screening 
tests for HIV or HCV, or 12 months and less before the donor's reactive 
direct viral detection test, e.g., nucleic acid test (NAT) (HIV and 
HCV) or HIV p24 antigen test (HIV), and a nonreactive antibody 
screening test for HIV or HCV, whichever is a lesser period (Sec. Sec.  
610.46(a)(1)(i) and (a)(1)(ii), and 610.47(a)(1)(i) and (a)(1)(ii)), 
the collecting establishment must do the following:
     Quarantine all identified previously collected in-date 
blood and blood components if intended for use in another person or for 
further manufacturing into injectable products (Sec. Sec.  
610.46(a)(1)(ii)(A) and 610.47(a)(1)(ii)(A)). Pooled blood components 
solely intended for further manufacturing into products that are 
manufactured using validated clearance (i.e., inactivation and removal) 
procedures are not subject to quarantine; and
     Notify consignees to quarantine all identified previously 
collected in-date blood and blood components (Sec. Sec.  
610.46(a)(1)(ii)(B) and 610.47(a)(1)(ii)(B)). The consignee's pooled 
blood components solely intended for further manufacturing into 
products that are manufactured using validated viral clearance (i.e., 
inactivation and removal) procedures also are not subject to 
quarantine.
    Within 45 calendar days of the reactive screening test, the 
collecting establishment must perform a supplemental additional, more 
specific) test on the reactive donation (Sec.  610.40(e)) for HIV 
(Sec.  610.46(a)(2)) or HCV (Sec.  610.47(a)(2)), and must notify the 
consignees of the supplemental test results, or the results of a 
reactive screening test if there is no available supplemental test that 
is approved for such use by FDA (Sec. Sec.  610.46(a)(3) and 
610.47(a)(3)). Thus, if we have not approved a supplemental test for a 
required screening test, you must notify consignees of the results of 
the reactive screening test. Similarly, if there is a shortage of an 
approved supplemental test such that they are not available for 
commercial purchase, you must notify consignees of the results of the 
reactive screening test. By adding the term ``available'' to the 
codified language, we are not authorizing blood establishments to 
simply choose to notify consignees of the result of a reactive 
screening test if the establishment has simply run out of the approved 
supplemental test. Rather, the test must be unavailable commercially. 
We are also adding ``or if under an IND or IDE, is exempted for such 
use by FDA'' so that we have the ability to authorize the use of a 
supplemental test under an investigational new drug application (IND) 
or an investigational device exemption (IDE) under certain 
circumstances. In such cases, we will issue guidance on alternative 
product use under conditions where approved supplemental tests are 
unavailable, or when a product under IND or IDE is exempted for such 
use. Currently, there are FDA-approved supplemental tests for all 
antibody and antigen screening tests for HIV and HCV, except NAT. 
Therefore, if a donor tests reactive by NAT and nonreactive by an 
antibody screening test, the results would be reported to the consignee 
without further testing. Notification must include the supplemental 
test results for all identified blood and blood components previously 
collected from donors who later test reactive for evidence of HIV or 
HCV infection.
    Once the collecting establishment receives the supplemental test 
results and notifies the consignees, then the collecting establishments 
must release, destroy, or relabel quarantined in-date blood and blood 
components consistent with the supplemental test results or a reactive 
screening test if there is no available supplemental test that is 
approved for such use by FDA, or if under an IND or IDE, is exempted 
for such use by FDA (Sec. Sec.  610.46(a)(4) and 610.47(a)(4)). Our 
current thinking on the appropriate actions of releasing, destroying, 
and relabeling is discussed in the ``lookback'' guidance.
    b. Responsibilities of the consignees. The consignee must also 
establish, maintain, and follow an appropriate system (as described in 
section II.B.1.a of this document) for performing HIV and HCV 
``lookback'' when notified by the collecting establishment that they 
have received blood and blood components previously collected from 
donors who later tested reactive for evidence of HIV or HCV infection, 
or when the collecting establishment is made aware of other reliable 
test results or information indicating evidence of HIV or HCV infection 
in a donor (Sec. Sec.  610.46(b) and 610.47(b)). This provision for a 
system requires the consignee to establish SOPs for the following 
actions:
     Quarantining consigned in-date blood and blood components 
when notified by the collecting establishment (Sec. Sec.  610.46(b)(1) 
and 610.47(b)(1)).
     Releasing, destroying, or relabeling quarantined in-date 
blood and blood components consistent with the supplemental test 
results or a reactive screening test if there is no available 
supplemental test that is approved for such use by FDA or exempted for 
such use by FDA (Sec. Sec.  610.46(b)(2) and 610.47(b)(2)).
     Notifying transfusion recipients of blood and blood 
components, or the recipient's physician of record or legal 
representative, when such action is indicated by the results of the 
supplemental (additional, more specific) tests or a reactive screening 
test if there is no available supplemental test that is approved for 
such use by FDA, or if under an IND or IDE, is exempted for such use by 
FDA. The consignee must make reasonable attempts to perform the 
notification within 12 weeks of receipt of the supplemental test result 
or receipt of a reactive screening test result when

[[Page 48770]]

there is no available supplemental test that is approved for such use 
by FDA, or if under an IND or IDE, is exempted for such use by FDA. 
Notification of the recipient is necessary in order to permit testing, 
counseling, and (if necessary) treatment for recipients who received 
blood or blood components potentially at risk of transmitting HIV or 
HCV (Sec. Sec.  610.46(b)(3) and 610.47(b)(3)).
    c. No recall action. We have added a statement in Sec. Sec.  
610.46(c), 610.47(c), and 610.48(d) that ``lookback'' does not 
constitute a recall as defined in 21 CFR 7.3. Discussion of the 
differences between a recall action and a ``lookback'' action may be 
found in the HCV ``lookback'' proposed rule (65 FR 69378 at 69391). FDA 
recognizes that a ``lookback'' action does not mean that an 
establishment has erred or that it did not meet its obligations under 
the regulations and the statute in assuring the safety of the blood 
supply. However, failure to comply with the ``lookback'' regulations is 
a regulatory violation and may merit enforcement action.
2. HCV ``Lookback'' Requirements Based on Review of Historical Testing 
Records (Sec.  610.48)
    As previously described, we have removed the requirements for the 
review of historical testing records from proposed Sec. Sec.  610.48 
and 610.49 and placed them under final Sec.  610.48 Hepatitis C virus 
(HCV) ``lookback'' requirements based on review of historical testing 
records. It is important to identify and notify recipients previously 
transfused with blood or blood components at increased risk of 
transmitting HCV infection because HCV is a chronic, often asymptomatic 
disease that may ultimately have serious consequences. Therefore, we 
are requiring the review of historical HCV testing records of donors so 
that blood and blood components previously collected from donors who 
later test reactive for evidence of HCV infection are identified, and 
recipients of such blood and blood components are notified of the 
possibility of being infected with HCV. With this information, the 
recipients can be tested and, if infected, pursue treatment and 
counseling, and take preventive measures to avoid transmitting HCV to 
others. The requirements for historical review of HCV testing records 
or ``retrospective review'' are the same as the requirements for the 
prospective review of HCV testing records, except for variations in the 
required time for completion of the actions, the extent of record 
review, and a distinction regarding the specimen that may be used for 
further testing (either a frozen sample from the same reactive donation 
or a fresh sample from the same donor).
    a. Completion of required actions. To permit adequate time to 
perform the requirement for the review of historical HCV testing 
records, Sec.  610.48(a) requires that the collecting establishments 
complete the actions prescribed in Sec.  610.48(b) within 1 year of the 
effective date of this final rule. Consignees must complete the actions 
prescribed in Sec.  610.48(c) within 1 year of the date of notification 
by the collecting establishment.
    We have also established a date for the conclusion of historical 
record review of HCV testing in Sec.  610.48(b)(1)(i). The historical 
record review must include all HCV testing performed before February 
20, 2008, the effective date of this rule. The requirements under Sec.  
610.48 will remain in effect for 8 years after the date of publication 
in the Federal Register.
    b. Extent of record review. When performing the historical record 
review, under Sec.  610.48(b)(1)(i), the establishment must review all 
HCV testing from February 20, 2008 back indefinitely for computerized 
electronic records, and to January 1, 1988, for all other records. Once 
a reactive screening test is found, you must identify for further 
action blood and blood components collected 12 months and less before 
the donor's most recent nonreactive screening tests, or 12 months and 
less before the donor's reactive direct viral detection test and 
nonreactive antibody screening test, whichever is the lesser period 
(Sec.  610.48(b)(1)(ii) and (b)(1)(iii)).
    To prevent unnecessary repetition of already completed ``lookback'' 
actions, we have added an exemption stating that any ``lookback'' 
action performed before the effective date of the final rule that 
otherwise satisfies the requirements for prospective ``lookback'' in 
final Sec.  610.47, is exempt from the retrospective ``lookback'' 
requirements in final Sec.  610.48. We recognize that, without this 
exemption, when this final rule becomes effective, collecting 
establishments that already performed prospective ``lookback'' actions 
that comport with the recommendations set forth in the ``lookback'' 
guidance could face a situation in which they would be compelled under 
the final rule to repeat these already completed ``lookback'' actions 
under the retrospective ``lookback'' provisions. As this would mandate 
an obvious waste of effort and would penalize establishments that 
conducted expeditious prospective ``lookback'' actions guided by our 
recommendations in the ``lookback'' guidance, we have added the 
exemption for completed adequate ``lookback.''
    c. Further testing. Under Sec.  610.48(b)(1)(ii), quarantine and 
consignee notification are not required when donors, who tested 
reactive by a screening test, test negative on the same donation by an 
appropriate supplemental (additional, more specific) test for evidence 
of HCV infection. In the context of this rule, an appropriate 
supplemental test for a reactive antibody screening test is a test for 
antibody, i.e., the recombinant immuno-blot assay (RIBA). At this time, 
an appropriate supplemental test for NAT does not exist. However, when 
a supplemental test becomes appropriate for NAT, we will notify the 
public on its use through guidance.
    Under Sec.  610.48(b)(2), if a supplemental (additional, more 
specific) test for HCV is not performed on the same donation at the 
time of the reactive screening test, the collecting establishment may 
choose to perform the supplemental test or a licensed screening test 
(e.g., an EIA 3.0) with known greater sensitivity than the test of 
record (e.g., an EIA 2.0) on a frozen sample from the same reactive 
donation, or may collect and test a fresh sample from the same donor, 
if obtainable. If a supplemental test for a reactive screening test is 
not approved for such use by FDA, or if under an IND or IDE, is 
exempted for such use by FDA, a suitable test is unavailable, or the 
collecting establishment does not perform further testing due to the 
unavailability of a sample, then the collecting establishment must 
proceed with quarantine and consignee notification under Sec.  
610.48(b)(3), (b)(4), and (b)(5).
    A variation between Sec. Sec.  610.47(a)(3) (prospective review) 
and 610.48(b)(4) (retrospective review) is the event initiating the 
notification of the consignee of the test results within 45 calendar 
days. Under Sec.  610.47(a)(3), the collecting establishment must 
notify the consignee of the supplemental test results within 45 
calendar days after the donor tests reactive for evidence of HCV 
infection. Under Sec.  610.48(b)(4), the collecting establishment must 
notify the consignee of the supplemental test results within 45 
calendar days of completing the supplemental tests.
    d. Notification of transfusion recipients. Under Sec.  
610.48(c)(3), the consignee is required to notify the transfusion 
recipient under any of the following conditions:
     The supplemental (additional, more specific) test for HCV 
is positive; or
     The supplemental test is indeterminate, but the 
supplemental test

[[Page 48771]]

is know to be less sensitive than the screening test; or
     The screening test is reactive and there is no available 
supplemental test that is approved for such use by FDA, or if under an 
IND or IDE, is exempted for such use by FDA; or
     The supplemental testing is not performed.
     Transfusion recipients do not need to be notified if there 
is a negative result by an alternative licensed screening test with 
known greater sensitivity than the test of record, and that the 
alternative screening test was performed on the original reactive donor 
sample or a fresh sample from the same donor.

C. Changes to Related Regulations

1. Standard Operating Procedures (Sec.  606.100(b)(19))
    We are requiring that collecting establishments and consignees 
establish, maintain, and follow procedures:
     For identifying previously donated blood and blood 
components from a donor who later tests reactive for evidence of 
infection with HIV or HCV, or when the collecting establishment becomes 
aware of other reliable test results or information indicating evidence 
of infection;
     For quarantining such in-date blood and blood components, 
intended for use in another person or for further manufacture into 
injectable products, except pooled components intended solely for 
further manufacturing into products that are manufactured using 
validated viral clearance (i.e., inactivation and removal) procedures;
     For notifying consignees to quarantine such in-date blood 
and blood components, except pooled components intended solely for 
further manufacturing into products that are manufactured using 
validated viral clearance (i.e., inactivation and removal) procedures;
     For determining the suitability of the quarantined blood 
or blood components for release, destruction, or relabeling;
     For notifying the consignees of the test results for HIV 
or HCV performed on donors of such blood and blood components; and
     For notifying the recipient of such blood or blood 
components, the recipient's physician of record, or the recipient's 
legal representative by the consignee that the recipient received blood 
or blood components which may have been at increased risk of 
transmitting HIV or HCV, respectively.
2. Recordkeeping (Sec.  606.160(b)(1)(viii))
    Collecting establishments and consignees must keep records 
concerning the requirements of this final rule. This includes any 
records relating to quarantine; notification of consignees; testing; 
notification of the transfusion recipient, the recipient's physician of 
record, or the recipient's legal representative; and disposition of the 
identified blood and blood components.
3. Retention of Records (Sec.  606.160(d))
    Current Sec.  606.160(d) requires the retention of records no less 
than 5 years after the records of processing are completed or 6 months 
after the latest expiration date for the individual product, whichever 
is the latest date. In Sec.  606.160(d), we are changing the 
requirement for record retention from 5 years to 10 years. There can be 
a prolonged time between exposure to an agent and development of 
symptoms, as is the case for HIV and HCV. A longer record retention 
time will allow establishments to trace recipients of blood from donors 
who had not been regular donors. This change is also consistent with 
industry standards for record retention by blood establishments for 
``lookback'' to identify recipients who may have been infected with HIV 
or HCV (AABB Standards for Blood Banks and Transfusion Services; 23rd 
edition). Because of the widespread use of electronic recordkeeping, it 
is now practical to search records for up to 10 years.
    This change accommodates the advances in medical diagnosis and 
therapy that have created opportunities for disease prevention or 
treatment many years after recipient exposure to a donor later 
determined to be at increased risk of transmitting disease by 
transfusion.
4. Donor Deferral (Sec.  610.41(c))
    In the Federal Register of June 11, 2001 (66 FR 31146), we 
published a final rule entitled ``Requirements for Testing Human Blood 
Donors for Evidence of Infection Due to Communicable Disease Agents'' 
(the June 2001 final rule). Under Sec.  610.41(a), any donor of blood 
and blood components who tests reactive for a communicable disease 
agent described in Sec.  610.40(a) or reactive with a serological test 
for syphilis must be deferred from donation. Section 610.41(b) permits 
the reentry of a deferred donor into the donor pool when the donor is 
requalified by a process or method approved for such use by FDA.
    We have moved proposed Sec.  610.40(g) to Sec.  610.41(c) in this 
final rule. Section 610.41(c) requires collecting establishments to 
perform ``lookback'' when a donor tests reactive by a screening test 
for HIV or HCV, or when the establishment becomes aware of other 
reliable tests results or information indicating evidence of infection 
with HIV or HCV.
    To be consistent with the language used in the June 2001 final 
rule, we refer in this final rule to screening tests as ``reactive'' 
instead of ``repeatedly reactive,'' to accommodate the different 
testing algorithms established for NAT and other screening tests. In 
cases where the testing algorithm requires initial and repeat testing 
as part of a single screening procedure, we would interpret the term 
``reactive'' to mean ``repeatedly reactive.''

III. Comments on the Proposed Rule and FDA's Responses

    Twelve blood establishments, i.e., blood banks, blood centers, and 
blood industry trade associations, submitted comments raising multiple 
issues with the proposed rule. The following comments and responses are 
grouped by subject matter rather than by sections of the proposed rule 
because many comments generally relate to both HIV and HCV prospective 
review (Sec. Sec.  610.46 and 610.47, respectively), and HCV 
retrospective review (Sec.  610.48). When the comment or response is 
particular to HIV, HCV, prospective review, or retrospective review, we 
specify it when we describe the comment.
    Five comments expressed general approval of the proposed rule. 
Another comment noted that the proposed rule was in keeping with the 
commenter's mission to provide the best possible health care. One 
comment stated that the proposed rule goes beyond the current guidance 
issued in September 1998, i.e., to include the prior donations from 
individuals identified as HCV-infected through their reactivity on the 
HCV screening test by EIA 1.0, and extending multi-antigen ``lookback'' 
further back in time. Another comment supported extending the 
requirement for HCV ``lookback'' beyond the September 1998 guidance.
    We also received comments on the specific prescriptive language of 
the proposed rule for quarantining, releasing from quarantine, 
relabeling, appropriate algorithms for proceeding with HCV ``lookback'' 
resulting from the historical record review, the interpretation of the 
signal to cutoff values used in interpreting the results of

[[Page 48772]]

the EIA 1.0 test, and the use of unlicensed tests in the algorithms. 
However, because in preparing this final rule, we opted to set forth 
requirements rather than specific procedures for achieving those 
requirements, we have not responded specifically to comments on 
prescriptive language that is not in the final rule. We reviewed and 
considered all comments in preparing the ``lookback'' guidance. 
Although the ``lookback'' guidance does not prescribe the sole means to 
comply with this final rule, it does discuss measures that would 
satisfy the final rule's requirements. A summary of the comments and 
our responses follows.

A. General Comments

    (Comment 1) Several comments stated that the proposed rule is too 
long and complex, making it difficult to find cross-referenced relevant 
provisions within the proposed rule, and that a flowchart or table 
would make the requirements easier to follow and understand. Many 
comments pointed out that certain testing outcomes are not adequately 
addressed in the proposed rule's prescriptive language. One comment 
urged FDA to create an appropriate mechanism, allowing blood 
establishments to modify ``lookback'' timeframes and procedures as new 
tests or new generations of viral tests become available. One comment 
suggested that FDA modify the proposed rule by issuing requirements 
that would apply to donors who test reactive by screening tests for HCV 
(prospective ``lookback'') as of the effective date of the final rule, 
and that the September 1998 guidance would apply to all other 
``lookback'' actions (retrospective ``lookback'').
    (Response) We agree that the proposed rule was long, complex, and 
difficult to understand. When we issued the proposed rule, we provided 
reference tables to help readers understand the proposed requirements 
due to the complexity of the codified section. The tables showed the 
various tests performed for HCV, steps of the ``lookback'' process, and 
applicable provisions of proposed Sec. Sec.  610.48 and 610.49. As 
described in section II.A of this document, and in response to the 
comments, we have restructured the codified section of the final rule 
to make it easier to understand and follow. We have constructed the 
requirements by listing the objective actions that must be performed 
and by eliminating the prescriptive language in the final rule. In 
other words, the regulation now tells you what to do, not how to do it.
    We considered the comments on testing outcomes in the proposed rule 
when revising the September 1998 guidance document. We are issuing the 
``lookback'' guidance, which represents our current thinking on how to 
conduct HCV ``lookback.'' We have not prescribed specifically how you 
must comply with the final rule's requirements, though the guidance 
discusses the agency's current thinking and offers an explanation of 
some satisfactory approaches. We provide flowcharts and tables in the 
guidance document to assist you in performing the ``lookback'' actions. 
As new tests or new generations of viral tests become available, we can 
revise or modify the companion guidance to assist you in complying with 
the required ``lookback'' actions.
    As requested, we have provided a date in Sec.  610.48(b)(1)(i), 
which defines the period of record review under Sec.  610.48. 
Consistent with the ``lookback'' guidance, establishments could already 
be performing the review now required under Sec. Sec.  610.47 and 
610.48 by the time this final rule becomes effective. However, we want 
to reiterate that, whereas the ``lookback'' guidance offers only our 
current thinking on some satisfactory approaches, it is this final rule 
that imposes a date to define record review and creates an enforceable 
requirement.
    (Comment 2) Another comment expressed concern regarding the adverse 
consequences of informing donors of potential HCV infected status when 
such a donor tests reactive by a screening test for HCV. The comment 
pointed out the scientific uncertainty in treating HCV-infected 
individuals and asked FDA to be mindful of these facts when issuing the 
final rule. The comment further explained that treatment protocols are 
ambiguous for many infected individuals and response rates are 
variable. The comment was concerned that the donor's infectious status 
may not result in high risk behavior change, especially where no 
clinical symptoms are present, and that there may be personal 
ramifications of informing a donor of an infectious status, i.e., 
personal disruption or trauma and potential for discrimination against 
the donor.
    (Response) Although this rulemaking does not address notification 
of donors at increased risk of transmitting HCV, we are very aware of 
the consequences of informing donors (required under 21 CFR 630.6), as 
well as recipients, of their increased risk of being infected with HCV. 
However, in the interest of protecting individual and public health, we 
believe it is imperative that such individuals be informed so that they 
may pursue further testing and counseling. Through such means the 
recipient can monitor the disease process, if infected, and can take 
precautions to prevent infecting others. Notification of the individual 
also is necessary because some infected individuals with a progressive, 
but treatable liver disease, remain asymptomatic for many years and are 
not being treated because of a lack of awareness of their condition. 
The agency cannot regulate the behavior of the individual if infected, 
nor eliminate the trauma of notification, but notifying the individual, 
recommending further testing, and permitting an opportunity for 
counseling and treatment can help minimize any adverse outcome and is 
necessary to protect the health of others.

B. Records

    Proposed Sec.  606.160(d) would require that blood establishments 
keep records no less than 10 years after the completion of the 
processing of records or 6 months after the latest expiration date for 
the individual product, whichever is later.
    (Comment 3) One comment agreed with the proposed requirement. The 
comment further suggested that prospective ``lookback'' be confined to 
a ``rolling'' 10-year period, which would be consistent with the CMS 
companion interim final rule requiring transfusion services to maintain 
records of disposition for 10 years. The comment also requested that 
FDA establish an expiration date for recovered plasma to prevent the 
retention of records indefinitely as required for such products in 
current Sec.  606.160(d).
    (Response) We agree that the 10-year recordkeeping period should be 
a ``rolling'' 10-year period. The final rule requires collecting 
establishments to retain records for 10 years from the date of 
completion of the processing records or 6 months after the latest 
expiration date for the individual product, whichever is later (Sec.  
606.160(d)). A ``rolling'' 10-year record retention period is described 
as the establishment increasing the record retention period yearly 
until 10 years of records from the date of disposition have accrued. 
For example, if you currently have records dating back 5 years, then 
the first year after the effective date of this regulation you must 
have 6 years of records, the second year after the effective date, you 
must have 7 years of records, etc., until 10 years have been reached. 
However, if you already retain 10 years of records, then the 10-year 
record retention period is immediately satisfied.
    As for the comment's suggestion regarding an expiration date for 
recovered plasma, the comment raises significant issues beyond the 
scope of

[[Page 48773]]

this rulemaking. We decline to establish an expiration date for 
recovered plasma at this time, but we will take the comment's 
suggestion under consideration.

C. HIV and HCV ``Lookback''

1. Initiation of Record Review
    Proposed Sec. Sec.  610.46(a) and 610.48(a) would require that the 
collecting establishment initiate HIV or HCV ``lookback,'' 
respectively, when a donor tests reactive by a screening test for 
evidence of HIV or HCV infection. Collecting establishments would also 
initiate record review when the establishment becomes aware of other 
test results indicating evidence of HIV or HCV infection, provided that 
the testing was performed by a laboratory certified under the Clinical 
Laboratories Improvement Amendments of 1988 (CLIA), using a test 
approved by FDA.
    (Comment 4) One comment suggested deleting from proposed Sec. Sec.  
610.46(a) and 610.48(a), the requirement to conduct prospective record 
review when a blood establishment is ``made aware of other test 
results'' indicating evidence of HIV or HCV infection. The comment 
explained that the language is too vague as to the nature, source, and 
reliability of the information, and requested clarification of what 
constitutes ``made aware'' and ``evidence.'' The comment also 
considered determining a lab's CLIA certification status as problematic 
because there is no available database for searching such information.
    (Response) We decline to delete the requirement. In the preamble of 
the proposed rule (65 FR 69378 at 69383), we explained that this 
provision clarifies the existing language in Sec.  610.46, which 
requires HIV ``lookback'' when the donor is determined otherwise to be 
unsuitable when tested under 21 CFR 610.45.
    However, we added the term ``reliable'' as describing other test 
results that initiate record review. We consider other ``reliable'' 
test results to be information that, if known to the collecting 
establishment, would indicate that the donor is unsuitable or should be 
deferred from donation.
    A collecting establishment does not routinely receive information 
that a donor is unsuitable for donation unless the screening and 
testing occurs in the same collecting establishment. However, we are 
aware that donors may inform collecting establishments when they test 
reactive for evidence of HIV or HCV as a result of a physical 
examination or if they donate at another collecting establishment. In 
the final rule, therefore, we have removed the provision from proposed 
Sec. Sec.  610.46(a) and 610.48(a) for the testing laboratory to be 
certified under CLIA and for the other information to be based on a 
test approved by FDA, and have described our thoughts about the 
relevant laboratory qualification information in the ``lookback'' 
guidance. These qualifications are already required under Sec.  
610.40(f). Such qualifying information can be obtained by asking if the 
laboratory is a Medicare participant.
2. Extent of Record Review
    Proposed Sec. Sec.  610.46(a) and 610.48(a) would require that the 
collecting establishment review HIV or HCV testing records and identify 
blood and blood components previously collected from a donor who 
subsequently tests reactive for evidence of infection with HIV or HCV. 
Record review would include all available records.
    Proposed Sec.  610.48(c) would require collecting establishments to 
perform a review of records for HCV testing prior to the effective date 
of the final rule. These records would date back indefinitely for 
computerized electronic records, and to January 1, 1988, for all other 
readily retrievable records, or to the date 12 months before the most 
recent negative screening test for HCV, whichever is the lesser period.
    (Comment 5) Several comments asked for revisions to the codified 
section to clarify the extent of prospective record review. One comment 
requested a fixed date for ``lookback'' regardless of the 
establishment's method of recordkeeping. The comment stated that the 
proposed rule penalizes establishments that keep records longer and 
agreed that the rule is a deterrent for keeping good computerized 
records. The other comment interpreted the language of the proposed 
prospective HIV and HCV record review, i.e., ``whenever records are 
available,'' as resulting in an open-ended, continuous search. The 
comments preferred the description of the retrospective HCV record 
review and suggested modifying the prospective HIV and HCV record 
review language to reflect similar language, or, as one comment 
suggested, changing the record review period to 10 years for 
transfusable products and 6 months for recovered plasma intended for 
further manufacturing use. The comment reasoned that, because recovered 
plasma does not have an expiration date, the blood establishment would 
have to search records that are 20 to 30 years old. Another comment 
recommended limiting the record review to computerized electronic 
records.
    For retrospective review, one comment recommended that we base the 
``lookback'' on a record review that extends as far back as 
computerized records exist for donation and distribution, or back to 
January 1, 1988, whichever is longer.
    (Response) In regards to the extent of record review required under 
final Sec. Sec.  610.46(a)(1) and 610.47(a)(1) (prospective review), we 
recognize the difficulty in interpretation and we have eliminated the 
phrase ``whenever records are available.'' In its place, we have 
inserted a reference to the requirements under Sec.  606.160(d) for the 
record retention period (10 years). Any affected blood or blood 
components collected before the required record retention period will 
most likely be outdated; or collected more than 12 months before the 
donor's most recent nonreactive screening tests for HIV or HCV, or more 
than 12 months before the donor's reactive direct viral detection test, 
e.g., NAT (HIV and HCV) or HIV p24 antigen test (HIV), and nonreactive 
antibody screening test for HIV or HCV, and will not need to be 
quarantined. If the establishment retains records beyond the required 
retention period, we suggest that the establishment search such records 
as appropriate in the ``lookback'' requirements to identify blood and 
blood components previously collected from a donor who later tests 
reactive for evidence of HIV or HCV infection. Our intention is not to 
penalize those establishments that keep records longer than required, 
but to help ensure that recipients are notified that they may have 
received blood or blood components at increased risk of transmitting 
infection so that they may seek testing, counseling, and (if necessary) 
treatment.
    We decline to make the suggested change for retrospective record 
review because not all establishments' records are computerized.
    (Comment 6) Three comments requested clarification of certain terms 
used in the proposed rule. One comment requested that the prospective 
and retrospective ``lookback'' be consistent with regard to the form 
and content of the reviewed records, i.e., ``computerized electronic 
records'' and ``readily retrievable records.'' The comment also 
suggested defining ``available'' in the prospective ``lookback'' as 
synonymous with ``computerized electronic'' in the retrospective 
``lookback.'' Another comment contended that nonconformity in such 
language might lead to different interpretations between the blood 
establishments and FDA investigators. A

[[Page 48774]]

third comment requested clarification of the term ``readily.''
    (Response) We acknowledge that the descriptive terminology used in 
the proposed codified section relating to the extent of record review 
could lead to differences in interpretation. However, we decline to use 
the same terms for prospective review and retrospective review due to 
the different events initiating the review, i.e., a donor's reactive 
screening test for HIV or HCV in prospective review or the final rule's 
requirement for historical HCV testing record review. However, to 
lessen confusion, we are changing the description of the prospective 
record review in Sec. Sec.  610.46(a)(1)(i) and 610.47(a)(1)(i) from 
``whenever records are available'' to ``records required under Sec.  
606.160(d).'' In this final rule, records must be available for 10 
years after the records of processing are completed or 6 months after 
the latest expiration date for the individual product, whichever is 
later. Because the current regulation requires a 5-year record 
retention period, the 10-year record retention period is a ``rolling'' 
10 years, as previously discussed in comment 3 of this document. 
Prospective record review must include all records required under Sec.  
606.160(d), including computerized electronic records. We have removed 
the term ``readily retrievable'' from the final rule.
3. Quarantine
    Proposed Sec. Sec.  610.46(a) and 610.48(a) and (c) would require 
the collecting establishment to quarantine in-date blood and blood 
components identified during the record review. Because the identified 
in-date blood and blood components are considered at risk for 
transmitting HIV or HCV infection and are still in inventory, they 
would be required to be removed from inventory and isolated in 
quarantine so that they may not be transfused or used for further 
manufacture into injectable products. The proposal would require 
collecting establishments to notify consignees to quarantine such blood 
and blood components, removing the possibility of infecting others. The 
proposed rule would require the collecting establishment to complete 
these actions within 3 calendar days of the donor testing reactive for 
evidence of HIV or HCV infection. We specifically requested comments on 
the appropriateness of 3 calendar days to complete quarantine and 
notification of consignees.
    (Comment 7) Several comments requested that FDA revise Sec.  
610.46(a) to be consistent with Sec.  610.48(a) by limiting quarantine 
and notification of consignees to in-date products, and that the 
retrospective review in proposed Sec.  610.48(e) be limited to in-date 
products only. Another comment suggested eliminating the action of 
quarantine for outdated products for both prospective and retrospective 
record review. The same comment asked whether in-date and outdated 
products are to be treated identically.
    (Response) We agree with the comment that the requirements for HIV 
``lookback'' in proposed Sec.  610.46(a) and the requirements for HCV 
``lookback'' in proposed Sec.  610.48(a) should be consistent and have 
made the change. The action of quarantining identified blood and blood 
components by the collecting establishment and the initial notification 
of the consignees to quarantine such products is limited to in-date 
blood and blood components because they are available for transfusion 
or use for further manufacturing into injectable products if they 
remain in inventory. Quarantine by the collecting establishment or 
consignee does not apply to outdated blood and blood components because 
they should no longer be in the establishment's releasable inventory. 
However, we want to clarify that the prospective HIV and HCV 
``lookback'' (final Sec. Sec.  610.46 and 610.47) must identify both 
in-date and outdated blood and blood components previously donated by a 
donor with a reactive screening test for HIV or HCV. This 
identification is necessary so that recipients of such blood and blood 
components can be notified for the purpose of testing, counseling, and 
treatment if indicated by the supplemental (additional, more specific) 
test results. These actions also apply to the requirements of 
historical HCV testing record review under final Sec.  610.48.
    (Comment 8) One comment urged FDA to modify the time period of 12 
months for the quarantine of identified prior collections of blood and 
blood components from the most recent reactive screening test for 
evidence of HIV infection in proposed Sec.  610.46(c). The comment 
suggested changing the time period from 12 to 3 months to remain 
consistent with current guidance for donors testing reactive for HIV-1 
antigen in a Blood Memorandum to All Registered Blood and Plasma 
Establishments entitled ``Recommendations for Donor Screening with a 
Licensed Test for HIV-1 Antigen'' (August 1995 memorandum).
    (Response) We understand the comment's request for consistency with 
existing guidance. However, we decline to make the change for the 
following reason. Since 1995, industry has collected additional 
scientific information showing that donors infected with HIV may 
experience intermittent viremias for a variable period of time prior to 
a persistently detectable viremia or an antibody response. Because 
these episodes of transient viremia may extend over a longer window 
period than previously estimated, we are requiring a record review 
period of 12 months before the donor's reactive direct viral detection 
test with a nonreactive antibody screening test or 12 months prior to 
the most recent nonreactive screening tests, whichever is the lesser 
period. A 12-month timeframe is necessary to encompass with sufficient 
confidence the window period for HIV prior to the detection of 
antibody. We have elected not to address an alternative (possibly 
shorter) ``lookback'' period based on the last negative direct viral 
test in order to minimize operational complexity and because the 
appropriate period has not been well established scientifically. This 
requirement supersedes the 3-month ``lookback'' recommendation for 
donors testing reactive for HIV p24 antigen in the August 1995 
memorandum and is for prospective application. However, we recommend 
that collecting establishments ``lookback'' 12 months before the few 
previously identified reactive HIV p24 antigen tests with a nonreactive 
antibody screening test that were confirmed as infected with HIV.
    (Comment 9) One comment interpreted ``quarantine'' as gaining 
control of distributed prior collections of blood and blood components 
from a donor who subsequently tests reactive by a screening test for 
evidence of HIV or HCV infection.
    (Response) We disagree with the comment's interpretation of 
``quarantine.'' The requirement for ``quarantine'' simply means the 
removal of the identified in-date blood and blood components from the 
collecting establishment's or consignee's inventory and their placement 
into isolation to prevent transfusion or use for further manufacture 
into injectable products. It is not intended to require the collecting 
establishment to physically retrieve the identified blood and blood 
components from the consignee, though such action is permissible. It 
also is permissible for the consignee to return to the collecting 
establishment any in-date blood and blood components identified for 
quarantine.
    (Comment 10) Five comments considered the timeframe of 3 calendar 
days in proposed Sec. Sec.  610.46 and 610.48 to be inadequate for the 
quarantine of all

[[Page 48775]]

prior collections of blood and blood components from donors testing 
reactive by a screening test for evidence of HIV or HCV infection, and 
for consignee notification, especially if the quarantine action is 
initiated by information from an outside source (prospective record 
review). Another comment stated that 3 calendar days is appropriate for 
quarantining in-date blood and blood components, but that additional 
time is needed for consignee notification. Several comments suggested 7 
calendar days, 3 working days, or 5 business days as alternative 
timeframes for quarantine and consignee notification. Two comments 
suggested that the time period start once the prior collections of the 
donor with the reactive screening test are identified, not when the 
reactive screening test occurs.
    (Response) We decline to change the timeframe. Our objective is to 
minimize the possibility of transmitting an HIV or HCV infection to an 
individual due to his or her exposure to blood and blood components at 
risk of transmitting HIV or HCV. It is important that consignee 
notification and quarantine of such blood and blood components be 
performed expeditiously within a reasonable timeframe and we believe 
that 3 calendar days is reasonable. We define ``3 calendar days'' as 
the period ending at the close of business 3 full days after a donor 
tests reactive. So, for example, if a donor testing reactive by a 
screening test for HIV or HCV on the first day (e.g., Friday), then 
quarantine by the collecting establishment and notification of 
consignees to quarantine must occur by close of business on the fourth 
day (e.g., Monday).
    (Comment 11) Several comments suggested adjusting the time period 
for quarantine and notification for the HCV retrospective review 
requirements in proposed Sec.  610.48(e) and (f). Suggested changes 
ranged from 3 working days, to 7 calendar or 5 business days, to 1 year 
for quarantine of prior collections and consignee notification. Another 
comment requested a change from 3 calendar days to 3 working days for 
outdated products. One comment suggested deleting proposed Sec.  
610.48(f)(2), which addresses the review of historical records based on 
screening performed using a single antigen-base antibody screening test 
during 1990 to 1992. The comment said that there would be few in-date 
products that would necessitate immediate quarantine and notification 
of the consignee.
    (Response) We decline to make the suggested changes for the reason 
stated in response to comment 10 of this document. We want to clarify 
that these actions are initiated by the identification of a reactive 
screening test on a donor upon review of historical records. The 3-
calendar day timeframe is required only when in-date blood and blood 
components are identified. If the review does not identify in-date 
blood and blood components, then the quarantine and notification of 
consignees to quarantine is unnecessary.
    We agree with the comment to delete proposed Sec.  610.48(f)(2) 
based on the reason that there would be few in-date products that would 
necessitate quarantine and notification of consignees. This revision is 
not necessary because of our restructuring of the codified section.
4. Exemptions From Quarantine
    Proposed Sec. Sec.  610.46(c) and 610.48(g) would permit exemption 
from quarantine of blood and blood components collected more than 12 
months before the donor's most recent negative screening test for HIV 
or HCV infection.
    (Comment 12) One comment suggested that FDA make an exception to 
HIV and HCV ``lookback'' for autologous donations that have a reactive 
screening test for HIV or HCV if the donor did not make any prior 
donations for allogeneic use, and if the blood establishment receiving 
those prior autologous donations from the donor did not have a 
crossover program, i.e., unused autologous donations put into inventory 
for allogeneic use.
    (Response) We agree that such autologous donations should be exempt 
from ``lookback'' because the risk of transmitting HIV and HCV 
infection to a recipient does not exist because the autologous donor 
has not donated blood or blood components that will be used by others. 
We have clarified in the final rule that ``lookback'' applies to blood 
and blood components ``intended for use in another person.''
    (Comment 13) One comment requests that we exempt products 
previously quarantined under FDA guidance and other existing 
regulations for ``lookback'' from new quarantine requirements. The 
comment suggested that we consider previous ``lookback'' actions as 
prospective and not impose further review requirements on these cases 
that would make the same reviews retrospective. The comment also 
claimed that retrospective record review is a one-time process and that 
it is too cumbersome to have retrospective requirements intertwined 
with the continuous process of prospective records review requirements.
    (Response) If actions performed pursuant to the ``lookback'' 
guidance or requirements for quarantine fulfill the requirements of 
this final rule, then they are considered completed. As discussed in 
section II.B.2.b and comment 1 of this document, we established a date 
distinguishing the end of the retrospective review period and an 
exemption in certain circumstances, thereby eliminating any overlap of 
retrospective review and prospective review.
    (Comment 14) Four comments asked us to include blood and blood 
components already pooled for further manufacturing use in the 
exception to quarantine in proposed Sec. Sec.  610.46 and 610.48. The 
comments also asked if these sections include historical or 
retrospective record review in addition to the prospective record 
review.
    (Response) We agree with the comment and have added the exemption 
from quarantine for pooled blood components intended solely for further 
manufacturing into products that are manufactured using validated viral 
clearance (i.e., inactivation and removal) procedures in the 
requirements for prospective review, in final Sec. Sec.  
610.46(a)(1)(ii), 610.47(a)(1)(ii), and in the requirement for 
retrospective record review in final Sec.  610.48(b)(3)(i) and (c)(1). 
Pooled components intended solely for further manufacturing are 
exempted because it is impractical to retrieve such pools and, 
additionally, the manufacturing process is designed to remove or 
inactivate HIV and HCV.
5. Notification of Consignee
    Proposed Sec. Sec.  610.46(a)(1)(ii), 610.48(a)(1)(ii), and 
610.48(e)(2) and (f)(2) would require the collecting establishment to 
notify the consignee to quarantine in-date blood and blood components 
previously collected from a donor who later tested reactive for 
evidence of HIV or HCV infection. Notification would be required to 
occur within 3 calendar days after the date a donor tests reactive by a 
screening test for HIV or HCV, or after the date of identification of 
the donor's reactive screening test for HCV.
    In proposed Sec. Sec.  610.46(b) and 610.48(b) (prospective 
review), the collecting establishment would notify the consignee of the 
results of further testing within 45 days after the donor tested 
reactive by a screening test for HIV or HCV. Under proposed Sec.  
610.48(h)(3) (retrospective review), the collecting establishment would 
notify the consignee of the results of further testing within 45 days 
following completion of further testing and prior

[[Page 48776]]

to 1 year after the effective date of the final rule.
    (Comment 15) Two comments requested clarification of the 
notification responsibilities in general. One comment suggested listing 
all the conditions that trigger quarantine and consignee notification 
in one section of the codified section of the final rule. The comment 
also requested clarification of the different criteria that trigger 
consignee notification versus recipient notification. The second 
comment recommended that the consignee be notified after the 
confirmatory test is completed to make the notification more effective 
by supplying all the necessary information and to reduce the number of 
contacts.
    (Response) We agree with the comment to group separately the 
requirements specific to consignee notification and recipient 
notification. Consequently, we have restructured the final rule into 
specific actions for the collecting establishment, which is responsible 
for consignee notification, and the consignee, who is responsible for 
the recipient notification. However, we do not agree with the 
recommendation that the collecting establishment limit notifying the 
consignee until after all the testing is completed. We clarified that 
the collecting establishment must notify the consignee when in-date 
blood and blood components distributed to the consignee are identified 
for the purpose of quarantine, and notify the consignee again with the 
results of the completed further testing. The consignee must notify the 
transfusion recipient if indicated by the results of the supplemental 
tests for HIV or HCV infection or when the donor's screening test is 
reactive and there is no available supplemental test that is approved 
for such use by FDA, or if under an IND or IDE, is exempted for such 
use by FDA.
    (Comment 16) One comment suggested that we create an exemption for 
notifying the consignee when the consignee gives documentation to the 
blood establishment showing that records no longer exist for products 
during a specified time period. The comment said that if the blood 
establishment knows that records do not exist, then it would be 
ineffective to notify the consignee to quarantine the products.
    (Response) We agree that it would be ineffective to notify the 
consignee to quarantine blood and blood components if records do not 
exist. However, initial notification of the consignee is for the 
purpose of quarantining in-date blood and blood components. Such 
consignees of blood and blood components must have existing records 
under Sec.  606.160(d). The final rule requires the collecting 
establishment to notify the consignee of further testing results for 
both in-date and outdated blood and blood components identified as at 
increased risk of transmitting HIV or HCV infection for the purpose of 
recipient notification.
    (Comment 17) A few comments asked that we clarify, in proposed 
Sec.  610.48(g), that it is not necessary to notify the consignee when 
prior collections from a donor with a reactive screening test for HCV 
are exempt due to the supplemental test results.
    (Response) In the preamble to the proposed rule (65 FR 69378 at 
69387), we explained that when an appropriate supplemental (additional, 
more specific) test for HCV is negative and is completed within the 3 
calendar days provided for the completion of quarantine and consignee 
notification, consignee notification is not necessary. In the final 
rule, if the supplemental test is negative within the provided 3 
calendar days, then the reactive screening test result is interpreted 
as a ``false reactive,'' HCV infection is not indicated, and the 
identified blood and blood components are considered not at increased 
risk of transmitting HCV. If, however, the supplemental test is 
completed more than the provided 3 calendar days after the date of the 
reactive screening test for HCV infection, the collecting establishment 
must quarantine identified in-date blood and blood components, and 
notify consignees to quarantine identified in-date blood and blood 
components, but may release the blood and blood components from 
quarantine if the supplemental test is negative. This applies to a 
donor testing reactive by a screening test for HIV infection as well.
    For retrospective record review, when a collecting establishment 
identifies a donor testing reactive by a HCV screening test, and if an 
appropriate supplemental test is negative, then quarantine and 
consignee notification is unnecessary. However, if additional 
supplemental testing or testing with a licensed screening test with 
known greater sensitivity than the test of record is necessary to 
establish the infectious status of the identified blood and blood 
components, then quarantine and consignee notification of in-date blood 
and blood components must occur within the provided 3 calendar days 
until further testing is completed.
6. Further Testing and Consignee Notification of Test Results
    In the case of prospective record review, proposed Sec. Sec.  
610.46(b) and 610.48(b) would require that the collecting establishment 
perform further testing on the donor's blood and notify the consignee 
of the results within 45 calendar days after the date on which the 
donor tested reactive by a screening test for evidence of HIV or HCV 
infection.
    While performing retrospective record review, proposed Sec.  
610.48(h) and (i) would require the collecting establishment to perform 
further testing, if not previously performed. The collecting 
establishment would perform the further testing either on a frozen 
sample from the reactive donation, if available, or on a fresh specimen 
from the donor, if obtainable. The collecting establishments would then 
notify the consignees of the results within 45 calendar days following 
the completion of further testing and prior to 1 year after the 
effective date of the final rule.
    (Comment 18) One comment suggested changing ``shall'' to ``may'' in 
proposed Sec.  610.48(h)(1) and (i)(1) to give the establishment the 
option of immediately performing quarantine and notification rather 
than locating the donor for further testing.
    (Response) We agree with the comment and have revised final Sec.  
610.48(b)(2) by changing ``shall'' to ``may'' to permit the collecting 
establishment to choose between either immediate quarantine and 
consignee notification, or obtaining a sample for further testing from 
the donor. However, we emphasize the benefit of further testing when 
recipient notification is indicated, and reiterate that every effort 
should be made to complete further testing.
    (Comment 19) One comment suggested alternatives for the 45-calendar 
day time period for notifying consignees of the results of further 
testing in both prospective and retrospective review. For proposed 
Sec. Sec.  610.46(b) and 610.48(h)(3)(i), the comment suggested 
exempting completely the requirement of notifying the consignee of 
further HIV or HCV testing results within 45 days when prior 
collections are returned to the blood establishment or destroyed. The 
comment suggested extending the time period to 90 days in proposed 
Sec.  610.48(b) for notifying consignees of further HCV testing results 
when the products from prior collections of the donor are outdated. The 
90-day time period would permit the blood establishment to retrieve 
records that are stored offsite and in varying forms, or to give 
additional search and review efforts to records not as readily 
accessible for in-date products. The comment further suggested that

[[Page 48777]]

notification for outdated products made from prior collections should 
occur within 1 year of the effective date of the final rule and only if 
the test results indicate that consignees must take action to notify 
the recipients.
    (Response) We agree that it is not necessary to notify the 
consignee of the results of further testing within 45 calendar days if 
the blood and blood components previously collected from a donor who 
later tests reactive for evidence of HIV or HCV infection are returned 
to the collecting establishment or destroyed by the consignee.
    We decline to extend the time period of 45 calendar days to 90 
calendar days in final Sec.  610.48(b) as suggested by the comment. 
Although the comment reasoned that a longer time period would enable 
the collecting establishment to retrieve records that are stored 
offsite and in varying forms or enhance additional search and review 
efforts to records not as readily accessible as those for in-date 
products, we believe that 45 calendar days is adequate for such 
purposes and that it is imperative that consignees obtain such 
information, which may necessitate recipient notification, in a 
reasonable time period.
7. Notification of Transfusion Recipient
    Proposed Sec. Sec.  610.47 and 610.49 would require consignees 
(transfusion services) to notify recipients that they received blood 
and blood components previously collected from a donor later determined 
to be unsuitable when tested for evidence of infection with HIV or HCV. 
The transfusion service would notify the recipient's physician of 
record (i.e., physician of record or physician who ordered the blood or 
blood component) and ask the physician to inform the recipient of the 
need for HIV or HCV testing and counseling. If the physician is not 
available or declines to notify the recipient, the transfusion service 
would be required to notify the recipient and inform the recipient of 
the need for HIV or HCV testing and counseling. The notification 
process would include a minimum of three attempts within a maximum of 
12 weeks of receipt of the result of the supplemental test. If the 
recipient is adjudged incompetent by a State court, or the recipient is 
competent but State law permits notification of a legal representative 
or relative, or if the recipient is a minor, then the transfusion 
service would notify the legal representative, relative, or recipient's 
physician of record. If the recipient is deceased, proposed Sec.  
610.47(c) for HIV would have the notification process continue, and the 
transfusion service or the recipient's physician of record would notify 
the legal representative or relative. Under proposed Sec.  610.49(c) 
for HCV, if the recipient were deceased, then the notification process 
would be terminated.
    (Comment 20) One comment urged FDA to remove the exceptions for 
recipient notification by the transfusion service/consignee in proposed 
Sec.  610.49(a) and place them in the section that pertains to the 
blood establishment. The comment stated that the requirement, as 
proposed, would require the blood establishment to notify the consignee 
even when the further testing results show that the donor is not at 
increased risk of transmitting HCV. The comment said that the suggested 
change would allow blood establishments to avoid notification of the 
consignees in cases that require no recipient notification, would 
streamline the final rule, and would have no ill effect on public 
health.
    (Response) We have accommodated the comment's request by 
restructuring the codified section, requiring objective actions for 
collecting establishments and consignees, and removing the prescriptive 
language. In this process, we removed proposed Sec.  610.49.
    (Comment 21) Several comments sought changes to proposed Sec.  
610.49(b). One comment interpreted the proposed section as requiring 
concurrent notification of the recipient's physician of record and the 
recipient. Some comments stated that the recipient's physician of 
record at a transfusion service often does not have an ongoing 
relationship with the recipient and that the most common reason for 
notifying the recipient directly is because the physician of record 
refuses to notify the recipient. The comments would revise proposed 
Sec.  610.49(b) to require the recipient's physician of record, not the 
transfusion service, to notify the recipient and would make the 
transfusion service responsible for notification only if the 
recipient's physician requests it or is unavailable. One comment said 
that the transfusion services are not in the position to provide 
patient counseling and further testing of the recipient for diagnostic 
purposes, and that the physician's decision should not be overridden by 
the transfusion service.
    (Response) The comments misread the proposed rule. Proposed Sec.  
610.49(b) stated that ``[T]he transfusion service shall either notify 
the recipient directly or notify the recipient's physician of record * 
* * and ask him or her to inform the recipient of the need for HCV 
testing and counseling.'' The proposal, therefore, did not propose 
concurrent notification of the recipient's physician and the recipient. 
In the final rule we require that the transfusion service notify the 
transfusion recipient of blood and blood components at increased risk 
of transmitting HCV, or the recipient's physician of record (Sec.  
610.47(b)(3)). Whether the transfusion service or the recipient's 
physician of record notifies the recipient, the recipient must be 
informed of the need for testing and counseling. At a minimum, the 
notifying party should inform the recipient of his or her increased 
risk of HCV infection and advise the recipient to seek testing, 
counseling, and treatment if necessary.
    (Comment 22) Several comments expressed concern regarding the 
requirement in proposed Sec.  610.49(b) that would require a minimum of 
3 attempts to notify the recipient. The comments asked for the 
flexibility to discontinue the attempts once the transfusion service 
has obtained solid information indicating that further attempts are not 
necessary or would not be fruitful, and documentation is kept. Two 
comments would revise proposed Sec.  610.49(b) to require only one 
attempt at notification using a traceable method, i.e., certified mail, 
return receipt. The comments asserted that there is a tremendous cost 
associated with more than one attempt and that we should permit the 
transfusion services to show good faith effort at notification if they 
use the information available in the patient record.
    (Response) The final rule clarifies, in Sec.  610.47(b)(3), that a 
consignee must make reasonable attempts to notify the recipient or the 
recipient's physician of record. We eliminated the requirement for 
three attempts; however, we emphasize that a consignee should continue 
attempting to notify the recipient or the recipient's physician of 
record until it is clear that further attempts would not be successful. 
If the initial attempt or attempts are unsuccessful, a consignee may 
need to try other methods to contact the recipient or the recipient's 
physician of record. If a consignee is successful in notifying a 
recipient or physician of record, then, obviously, no other attempts 
are necessary. We have also clarified this requirement in Sec. Sec.  
610.46(b)(3) and 610.48(c)(3). Consignees, under Sec.  
606.160(b)(1)(viii), must document their attempts to notify recipients 
or physicians of record and maintain a record of these attempts, 
whether successful or not.
    (Comment 23) Two comments requested consistency in proposed 
Sec. Sec.  610.47(c) (HIV ``lookback'') and

[[Page 48778]]

610.49(c) (HCV prospective ``lookback'') regarding the notification of 
the legal representative or relative when a transfusion recipient is 
deceased. Proposed Sec.  610.47(c) for HIV would require notification 
to continue if the transfusion recipient is deceased, and proposed 
Sec.  610.49(c) for HCV would discontinue the process if the 
transfusion recipient were deceased. Another comment requested that we 
eliminate the requirement in proposed Sec.  610.49(c) to notify the 
legal representative or relative of a recipient who is incompetent or 
deceased. The comment said the risk of secondary transmission under 
such circumstances is slim and such notification wastes resources.
    (Response) The final rule, in Sec.  610.46(b)(3), continues to 
require the consignee to notify the legal representative or relative of 
a deceased recipient who received blood and blood components determined 
to be at risk of transmitting HIV infection. Requiring notification of 
the legal representative or relative when the recipient is deceased may 
help prevent the further spread of HIV, which the donor may have spread 
to a spouse or significant other before death. With this information, 
the spouse or significant other may be tested for the communicable 
disease, receive counseling, and take precautions not to spread it to 
others, if infected. We do not believe that the notification 
requirement is necessary in Sec. Sec.  610.47(b)(3) and 610.48(c)(3) 
for HCV ``lookback'' because direct percutaneous exposure to infectious 
blood, particularly in the setting of drug abuse, accounts for the 
majority of HCV infections acquired in the United States; secondary 
transmission of HCV to sexual partners, care providers, or others with 
close contact is very unlikely.

IV. Analysis of Impacts

    FDA has examined the impacts of the final rule under Executive 
Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and 
the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive 
Order 12866 directs agencies to assess all costs and benefits of 
available regulatory alternatives and, when regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity). The agency believes that 
this final rule is an economically significant regulatory action under 
section 3(f)(1) of the Executive order, since it may lead to impacts of 
greater than $100 million in any one year.
    The Regulatory Flexibility Act requires agencies to analyze 
regulatory options that would minimize any significant impact of a rule 
on small entities. Because the average annualized costs for small 
entities will be less than 0.3 percent of average annual revenues, the 
final rule will not have a significant economic impact on a substantial 
number of small entities.
    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires 
that agencies prepare a written statement, which includes an assessment 
of anticipated costs and benefits, before proposing ``any rule that 
includes any Federal mandate that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more (adjusted annually for 
inflation) in any one year.'' The current threshold after adjustment 
for inflation is $122 million, using the most current (2005) Implicit 
Price Deflator for the Gross Domestic Product. FDA does not expect this 
final rule to result in any 1-year expenditure that would meet or 
exceed this amount.
    The final rule will provide information to consignees and 
recipients of blood and blood components that may be at increased risk 
of transmitting HCV infection. Based on the following analysis, FDA 
projects that one-time costs will total approximately $73.5 million and 
annual costs will be approximately $1.7 million. Benefits of the final 
rule are measured as the gains in quality-adjusted life years (QALYs) 
of blood transfusion recipients who receive treatment for newly-
identified post-transfusion hepatitis C virus infections that would 
otherwise go untreated in the absence of ``lookback.'' The value of 
this potential one-time gain in quality-adjusted life years ranges from 
$264 million to $1,228 million depending on the societal value of a 
quality-adjusted life year, or from $30.9 million to $143.9 million 
when annualized over 10 years with a 3 percent discount rate. Benefits 
could not be estimated with a 7 percent discount rate. With total 
annualized costs of $10.3 million, the net annualized benefits of the 
final rule are between $20.6 million and $133.6 million with a 3 
percent discount rate over 10 years. Thus, FDA has determined that the 
final rule will be economically significant as defined by the Executive 
Order, because the final rule might generate benefits that exceed $100 
million in a single year.

A. Economic Impact\3\
---------------------------------------------------------------------------

    \3\ The final rule revises the HIV ``lookback'' requirements to 
make them consistent with the HCV ``lookback'' requirements. Because 
these revisions do not change the level of effort required for HIV 
``lookback,'' an economic impact for the HIV ``lookback'' is not 
provided. The economic analysis for the HIV ``lookback'' 
requirements is addressed in the Federal Register issued September 
9, 1996 (61 FR 47420).
---------------------------------------------------------------------------

    The purpose of the final rule is to ensure the continued safety of 
the Nation's blood supply by removing blood previously donated by 
individuals who test reactive for evidence of the HCV infection and by 
notifying recipients that these blood and blood components are at 
increased risk of transmitting the infection. Although blood is 
screened for several infectious diseases, including HCV, it is possible 
for a donor to give blood in the early stages of an infection before a 
screening test can detect its presence. Blood given during this window 
period has an increased risk of transmitting disease. The need for this 
final rule stems from the information failure caused by the inability 
of screening tests to identify infections in the early stages. HCV 
``lookback'' will ensure that blood transfusion recipients be notified 
in the rare event that they receive at-risk blood.
    In addition to the proposed rule, the agency has issued several 
draft guidances on HCV ``lookback.'' The final rule, however, outlines 
the set of actions blood collection establishments and consignees 
(i.e., transfusion service establishments) must follow when tests show 
that an allogeneic blood donation from a repeat donor may be at 
increased risk for HCV infection. Because industry guidance can be 
updated more quickly as technologies advance, much of the prescriptive 
language in the proposed rule has been removed from the final rule. In 
response to the agency's guidance documents, much of the blood industry 
has voluntarily adopted HCV ``lookback'' as a standard business 
practice. Nevertheless, some establishments have not implemented all 
elements of ``lookback,'' specifically recipient notification. Without 
the final rule, partial implementation of ``lookback'' would likely 
persist with some blood transfusion recipients not being notified that 
they received blood components at increased risk for HCV infection. The 
agency further notes that the costs and benefits of the FDA and CMS 
interim final rule are not additive, as the impacts considered in the 
CMS interim final rule are also accounted for in the FDA final rule.

[[Page 48779]]

1. Annual Number of Blood Donations and Blood Components Affected
    a. Number of donations from repeat donors confirmed HCV positive. 
At a May 2, 2003, meeting of the DHHS Advisory Committee, the agency 
reported that previously unpublished American Red Cross (ARC) data show 
the HCV prevalence rate for repeat donors was 0.007 percent in 2000 
(Ref. 1). This estimate implies that with approximately 11.2 million 
donations annually from repeat donors (14 million donations x 80 
percent of donations from repeat donors), blood banks will find an 
estimated 780 donations from HCV-infected donors (11.2 million 
donations x 0.007 percent infected with HCV) per year. We note the 
reported prevalence rate has declined since 1997 when the ARC reported 
an HCV prevalence rate of 0.03 percent for repeat donors (Ref. 2). If 
prevalence rates continue to decline, we would expect even fewer 
donations from HCV-infected donors in the future.
    b. Number of previously donated components. A blood donation is 
normally separated into multiple components. Based on 1999 Center for 
Disease Control and Prevention (CDC) survey findings, we initially 
estimated that an average of 1.1 previously donated components would be 
found for each donor triggering ``lookback'' (Ref. 3). Several comments 
from blood banks affiliated with the America's Blood Centers (ABC) 
disagreed with the CDC survey findings and cited their experience that 
a review of donation records for a donor testing reactive to evidence 
of HCV infection can uncover up to 10 previously donated components.
    The wording of some survey questions may partially explain why CDC 
found fewer components. Blood banks reported the number of repeat 
donors who triggered ``lookback'' according to the type of screening 
test used, and the total number of blood components for these donors 
that had been previously shipped to transfusion services. However, some 
blood banks may have held or destroyed donations with abnormal 
surrogate markers for HCV even though the blood screened negative for 
HCV. These blood banks would report fewer components previously shipped 
to transfusion services (Ref. 3, p. 1180).
    The agency accepts that some collecting establishments may have 
more previously donated components than suggested by the CDC data. 
However, ABC establishments receive only about half of the annual 
donations in the United States. We assume that the CDC survey findings 
are representative of the remaining blood donations. Taking the average 
of the midpoint of the range reported in comments on the proposed rule 
(i.e., 5 components) and the CDC survey findings (i.e., 1.112 
components), we increase the estimated average number of previously 
donated components for each donation from 1.1 to 3.1 (3.06 = (5 + 
1.112) / 2).
2. The Number and Type of Entities Affected
    The final rule will affect establishments that collect, process, 
and ship blood and blood components, and establishments that transfuse 
those products. The affected entities include commercial plasma 
centers, regional and community blood collection or donation centers, 
hospitals that operate blood collection centers, and facilities that 
transfuse blood products. In the United States, there are 981 
registered blood collection establishments and 60 licensed plasma 
collection establishments listed with FDA's Office of Blood Research 
and Review (OBRR) (i.e., a total of 1,041 establishments). CMS has 
records of another 4,980 establishments that transfuse blood and blood 
components.
    With the exception of hospitals that both collect and transfuse 
blood products, establishments affected by the final rule will either 
act as a blood collection establishment or as a consignee (i.e., a 
transfusion service), but not both. To distinguish the impact of the 
requirements on blood collection establishments and consignees, the 
final rule provisions affecting each type of establishment will be 
treated separately in the analysis that follows.
3. Estimated Impact on Blood and Plasma Collection Establishments
    First, we present the costs that are the same for all collection 
establishments, regardless of the number of ``lookbacks'' performed. 
Second, we discuss the costs that vary according to how many 
``lookbacks'' occur.
    a. Fixed costs--Standard operating procedures and record retention. 
Each blood or plasma collection establishment must perform a one-time 
review and reconcile its current SOPs with the requirements of the 
final rule. In the analysis for the proposed rule, FDA estimated a 
staff medical technologist will need an additional 40 hours to review 
and update SOPs for the following actions: (1) Record review; (2) 
product quarantine; (3) consignee notification to quarantine identified 
products; (4) consignee notification of supplemental (additional, more 
specific) test results; (5) release, destruction, or relabeling of 
quarantined products; and (6) donor and blood product recordkeeping. No 
comments on this estimate were submitted to the agency. Using the 
original time burden and the revised loaded hourly wage of $33.84 (Ref. 
4), each establishment will incur one-time costs of $1,354, resulting 
in an industry-wide cost of approximately $1.4 million (40 hours x 
$33.84 per hour x 1,041 establishments).
    The final rule requires that blood and plasma collection 
establishments extend the length of time they keep individual product 
records from 5 to 10 years after the records of processing have been 
completed, or 6 months after the expiration date for the individual 
product, whichever is the later date. According to the AABB (formerly 
known as the American Association of Blood Banks), all establishments 
collecting blood in the United States, including the American Red Cross 
and America's Blood Centers, are accredited by their organization and 
comply with their standards. Current AABB standards require that 
establishments retain records 10 years. Because the final rule will not 
affect current industry practices, the blood collection industry will 
incur no additional compliance costs for this provision.
    b. Variable costs--HCV ``lookback.'' The agency has issued several 
draft guidances describing the specific actions blood collection 
establishments should take when a donor's screening test is reactive 
for HCV or if the blood collection establishment becomes aware of other 
reliable test results or information indicating evidence of HCV 
infection. When these activities are initiated by a current blood 
donation, the current donation is destroyed and the set of actions 
required of the collection establishment is called a prospective 
``lookback.'' However, when ``lookback'' is triggered by an historical 
review of blood donor testing records, the set of actions is called an 
historical or retrospective ``lookback.''
    Although the actions required by the prospective and retrospective 
``lookback'' provisions of the final rule are similar, the timing of 
these actions differs between the two ``lookbacks.'' In general, for 
donors with reactive test results for HCV, the collection establishment 
must take the following actions: (1) Review records to identify any 
other blood donations from these donors, (2) quarantine all previously 
collected in-date components from the donors that were intended for use 
in another person or for further manufacture into injectable products, 
and (3) notify consignees to quarantine all previously collected in-
date

[[Page 48780]]

components at increased risk of transmitting the virus.
    A collection establishment must perform a supplemental test (i.e., 
a test more specific than the screening test as described in the 
current industry guidance) for HCV on the current reactive blood 
sample. For reactive donations identified by an historical review of 
donor testing records, if no supplemental test was performed when the 
donation was collected, a collection establishment may perform a 
supplemental test on a frozen sample from the same reactive donation or 
a fresh sample from the same donor. If no further supplemental testing 
is possible for the retrospective ``lookback'', a blood collection 
establishment must send the reactive test results to the consignee. 
Once supplemental or other required test results are received, both 
types of ``lookback'' require that the collecting establishment do the 
following: (1) Notify consignees of these test results for both in-date 
and outdated previously collected components, (2) identify quarantined 
in-date components, and (3) take the appropriate action (i.e., release 
from quarantine, destroy the quarantined components, or relabel the 
components) indicated by the test results. However, collections taken 
more than 12 months before the donor's most recent nonreactive 
screening tests, or 12 months before the donor's reactive direct viral 
detection test and nonreactive antibody screening test for HCV are 
exempt from the required record review.
    Some comments requested that FDA specify how the final rule will 
affect plasma establishments because HCV is inactivated when pooled 
plasma is further manufactured. The ``lookback'' requirements of the 
final rule will only affect plasma establishments that store and 
distribute unpooled units to consignees. The number of firms in this 
category is expected to be small. Comments from a plasma industry trade 
organization support the agency's initial analysis that plasma 
establishments will only be minimally affected by these requirements.
    i. Prospective HCV ``lookbacks.'' At the May 2003 DHHS Advisory 
Committee meeting, the agency reported that FDA-inspected blood 
collection establishments voluntarily follow the agency's draft 
guidance and perform prospective ``lookback'' as part of their standard 
business practices (Ref. 1). No parties present at the meeting 
dissented from this statement. Because these provisions of the final 
rule will not require blood collection establishments to change their 
current practices, the blood collection industry will not incur any 
additional compliance costs for prospective ``lookback.''
    ii. Retrospective HCV ``lookback.'' The final rule requires a 
review of historical testing records for donations collected prior to 
the effective date of the final rule. Within 1 year of the effective 
date of the final rule, blood establishments must complete the 
retrospective ``lookback'' as described previously in this document. 
Because industry did not comment on the agency's initial estimate of 
the compliance costs for the retrospective ``lookback,'' the cost per 
consignee notification remains unchanged from the initial analysis (65 
FR 69378 at 69396).
    Published and unpublished data from CDC suggest that 188,448 
components from donors screened with single-antigen screening tests and 
105,706 components from donors screened with multi-antigen screening 
tests require retrospective ``lookback'' by blood collection 
establishments (Ref. 3). In their survey of the blood industry, CDC 
found that by 1999, blood collection establishments had completed about 
85 percent of the retrospective ``lookback'' based on reactive multi-
antigen tests or approximately 30 percent of the entire retrospective 
``lookback'' (Ref. 3). Adjusting our initial estimate to account for 
completion of 85 percent of blood collection establishments' 
``lookbacks'' based on reactive multi-antigen test results, blood 
collection establishments must conduct no more than 204,000 
``lookbacks'' [188,448 components screened with single-antigen tests + 
((100 percent - 85 percent) x 105,706 components screened with multi-
antigen tests)]. At the estimated cost of $113 per notification, blood 
collection establishments will spend about $23 million (i.e., $22.9 
million = 203,775 components x $112.50) to comply with the 
retrospective ``lookback'' provisions of the final rule, or $2.7 
million per year when annualized for 10 years at a 3 percent discount 
rate and $3.3 million when annualized at 7 percent. Furthermore, 
``lookback'' efforts have continued since the CDC survey was conducted. 
Although CDC has not conducted a follow-up survey, informal contacts 
with the blood collection industry have indicated that a substantial 
portion of the retrospective ``lookback'' has already been completed. 
Thus, $23 million represents an upper bound for the compliance costs of 
the retrospective ``lookback.'' If, for example, ``lookback'' based on 
multi-antigen screening tests has been completed, the one-time cost for 
``lookback'' based on the older single-antigen screening test will be 
$21 million (188,448 components x $112.50 per component), or $2.5 
million annualized for 10 years at a 3 percent discount rate and $3.0 
million annualized at 7 percent.
    c. Total costs for blood collection establishments. The costs of 
the final rule for blood collection establishments are shown in table 1 
of this document. FDA estimates that the blood collection industry will 
incur total one-time costs to revise SOPs and complete the 
retrospective ``lookback'' of up to $24.3 million. Over 10 years, the 
annualized costs equal about $2.9 million at a 3 percent discount rate 
and $3.5 million at a 7 percent discount rate.

                    Table 1.--Costs of the Final Rule for Blood Collection Establishments\1\
----------------------------------------------------------------------------------------------------------------
                                                                                Annualized Costs ($ million)
               Number Affected      Current Compliance   One-Time Costs ($ -------------------------------------
                                      Rate (percent)          million)          3 percent          7 percent
----------------------------------------------------------------------------------------------------------------
Review and                 1,041                     0                 1.4                0.2                0.2
 revise
 SOPs
----------------------------------------------------------------------------------------------------------------
Retain                     1,041                   100                --                 --                 --
 records
 for 10
 years
----------------------------------------------------------------------------------------------------------------
Prospectiv                   981                   100                --                 --                 --
 e
 ``lookbac
 k''
----------------------------------------------------------------------------------------------------------------
Retrospect                   981                    30+               22.9                2.7                3.3
 ive
 ``lookbac
 k''\2\
----------------------------------------------------------------------------------------------------------------
Total                                                                 24.3                2.9                3.5
----------------------------------------------------------------------------------------------------------------
\1\ Numbers may not sum due to rounding.

[[Page 48781]]


\2\ This upper bound estimate assumes that at least 30 percent of the retrospective ``lookback'' has been
  completed, including 85 percent of the ``lookback'' based on the multi-antigen screening test and no
  ``lookbacks'' based on the single-antigen screening test.

4. Estimated Impact on Blood Product Consignees (Transfusion Services)
    Similar to the analysis for blood and plasma collection 
establishments, we focus first on the costs that are independent of the 
number of ``lookbacks'' conducted and then on the costs that vary 
according to how many ``lookbacks`` consignees perform.
    a. Fixed costs--Standard operating procedures and record retention. 
Similar to blood collection establishments, consignees must also review 
and adapt their current SOPs to the requirements of the final rule. 
Specifically, consignees must have procedures for the required set of 
actions to take when notified by a blood collection establishment that 
the consignee received blood products at increased risk of transmitting 
HCV infection. These actions include the following: (1) Identifying and 
quarantining affected in-date unpooled blood components, and (2) 
processing quarantined in-date unpooled blood components according to 
the results of a supplemental test. Moreover, when the supplemental 
test for HCV is positive or there is no available supplemental test for 
a reactive screening test, the consignee must notify blood transfusion 
recipients that they received blood products at increased risk of 
transmitting the HCV infection. Because consignees already have SOPs in 
place for HIV ``lookback,'' FDA estimated that an average of 16 
additional hours would be needed by each consignee to adapt or modify 
current procedures. We did not receive any comments on the estimate of 
this time burden; therefore it remains unchanged for the final 
analysis. At the revised hourly wage of $33.84 with benefits for a 
staff medical technologist (Ref. 4), each consignee will incur one-time 
costs of $541, or about $2.7 million for the entire industry ($33.84 
per hour x 16 hours x 4,980 consignees).
    The final rule requires that consignees increase the time they keep 
records from 5 to 10 years. Although the agency did not include the 
annual cost of keeping records for a longer period in the analysis for 
the proposed rule, it may take 40 hours for a computer programmer to 
perform routine maintenance of these additional records. At a wage of 
$34.00 per hour including benefits (Ref. 5), a consignee would spend an 
additional $1,360 annually to conform to this provision of the final 
rule. However, according to the AABB, 80 percent of the consignees are 
accredited by the AABB and already comply with their standards, 
including retaining records for 10 years. Taking AABB compliance into 
account, the final economic analysis includes additional costs of 
maintaining records for 20 percent of the consignees, a total annual 
cost of $1.4 million ($34.00 per hour x 40 hours x 4,980 consignees x 
20 percent).
    b. Variable costs--HCV ``lookback.'' The prospective and 
retrospective provisions of the final rule require a similar set of 
actions by the consignee, although the amount of time a consignee may 
take to complete an action varies. The HCV ``lookback'' provisions of 
the final rule require that upon notification that a consignee was 
shipped blood or blood components at increased risk of transmitting HCV 
infection, the consignee must quarantine all identified in-date 
unpooled blood components, and make a reasonable effort to notify any 
recipients of blood components from donors confirmed HCV positive of 
the increased risk posed by these products. The consignees may notify 
the recipient's physician of record or notify the recipient directly. 
If the transfusion recipient is a minor or adjudged incompetent by a 
State court, the consignees would be required to notify the recipient's 
legal representative or the recipient's physician of record. Once 
supplemental test results on quarantined in-date unpooled products are 
received, the consignee must take the appropriate action indicated by 
those results (i.e., release from quarantine, destruction, or 
relabeling of affected blood products).
    Consignee costs can be separated into product quarantine costs and 
recipient notification costs. Based on the amount of time required to 
complete the different actions, the agency estimates that the product 
quarantine accounts for about 40 percent of the unit cost ($66 = 40 
percent x $165) while the recipient notification accounts for the other 
60 percent of the unit cost ($99 = 60 percent x $165). Although 
consignees did not comment on the agency's initial estimate that it 
would cost $165 to comply with all of the ``lookback'' provisions for 
each affected component, Los Angeles County recently reported that a 
vendor was paid $118 per patient to abstract health records, locate and 
notify transfusion recipients, and give pretest counseling (Ref. 6). 
Without other data, for both the prospective and retrospective 
``lookbacks,'' we continue to use $66 as the cost of product 
quarantine, but increase the cost of recipient notification from $99 to 
$118, based on the experience of the Los Angeles County.
    i. Prospective HCV ``lookback.'' According to agency inspectors, 
FDA-inspected consignees voluntarily follow the agency's draft guidance 
and currently comply with all requirements of prospective ``lookback.'' 
Although we have no data that directly measure the number of 
``lookbacks'' FDA-inspected establishments conduct, we expect the 
number will be proportional to the number of transfusions given in 
these establishments. Using data from the American Hospital 
Association, Healthcare Cost and Utilization Project, and FDA's Center 
for Biologics Evaluation and Research's registration list, we estimate 
that FDA-inspected establishments give between 25 percent and 35 
percent of all transfusions (Refs. 7 and 8). We assume for this 
analysis that CMS-inspected establishments account for between 65 
percent and 75 percent of all transfusions. Some CMS-inspected 
establishments currently conduct prospective ``lookback;'' in the 
absence of data on the actual number, we assume for this analysis that 
all CMS-inspected establishments will need to comply with the 
requirements of prospective ``lookback.'' This assumption may overstate 
the actual costs of prospective ``lookback'' by no more than $120,000 
annually.
    Consignees will quarantine blood components when notified that they 
received components from a donor who subsequently tested reactive on a 
screening test for HCV. All other ``lookback'' actions would be 
triggered when the consignee receives supplemental test results for the 
donor. When notified that they received blood components from donors 
who are confirmed HCV positive with a supplemental test, consignees 
must attempt to notify recipients of those blood components. The 
proposed rule would have required consignees make at least three 
attempts to notify a transfusion recipient. Several comments expressed 
concern that it would be costly to continue attempts to contact an 
individual who no longer resides at the last known address in the 
recipient's medical records. In response to these comments, the final 
rule removes the prescriptive language concerning the number of 
notification attempts. Under the final rule, consignees must make a 
reasonable attempt to contact any affected transfusion recipient within 
12

[[Page 48782]]

weeks of receipt from the collecting establishment of the donor's 
supplemental test results indicating evidence of HCV infection, or 
receipt of the reactive screening test if a supplemental test result is 
not available.
    Based on the HCV prevalence levels reported by the American Red 
Cross for 2000, about 2,400 components could trigger ``lookback'' (780 
donations from HCV-infected donors x 3.1 components per donation) (Ref. 
1). The CDC survey found that on average about 85 percent of the at-
risk components sent to consignees were transfused (Ref. 3). For the 
analysis of the proposed rule, we assumed that no patient would receive 
more than one affected component. This assumption suggests that 
consignees will quarantine about 2,400 components and attempt about 
2,050 recipient notifications (780 HCV positive donors x 3.1 components 
per donor x 85 percent transfused).
    Because CMS-inspected consignees account for about 65 percent to 75 
percent of the number of transfusions, the annual costs for consignees 
to conduct the prospective ``lookback'' actions range from $260,000 to 
$300,000 [65 percent by CMS-inspected establishments x (2,400 
components annually triggering quarantine x $66 per component 
quarantine + 2,050 components annually triggering recipient 
notification x $118 per recipient notification) to 75 percent by CMS-
inspected establishments x (2,400 components annually triggering 
quarantine x $66 per component quarantine + 2,050 components annually 
triggering recipient notification x $118 per recipient 
notification)].\4\
---------------------------------------------------------------------------

    \4\ With 10 components, we estimate that consignees attempt from 
4,350 to 5,020 recipient notifications at an annual ``lookback'' 
cost from $800,000 to $925,000.
---------------------------------------------------------------------------

    ii. Retrospective HCV ``lookback.'' Retrospective ``lookback'' will 
be triggered when a blood collecting establishment notifies a consignee 
that a review of historical records for blood donations screened with 
multi-antigen or single-antigen tests shows that an at-risk blood 
component may have been sent to the consignee. For consignees that also 
collect blood, it is likely that these consignees will identify 
additional at-risk components among their historical donor testing 
records. Once the consignee becomes aware that it received an at-risk 
blood component, it must complete the required ``lookback'' actions 
within 1 year.
    From their interim survey findings published in 1999, CDC estimated 
that 115,228 components screened with multi-antigen tests will trigger 
retrospective ``lookback'' by consignees. However, CDC also estimated 
that consignees had completed 80 percent of retrospective ``lookback,'' 
including recipient notification, for these components\5\ (Ref. 3). 
According to unpublished CDC data, an additional 188,448 components 
from donors screened with the single-antigen tests could trigger 
``lookback'' by consignees. We lack information to estimate the total 
number of ``lookbacks'' that will be based on single-antigen tests and 
thus retain the number of components screened with single-antigen tests 
(i.e., 188,448 components) used in the analysis of the proposed rule. 
Adjusting our initial estimate of the number of components screened 
with multi-antigen tests by 80 percent to account for ``lookbacks'' 
completed by 1999, consignees have no more than 212,000 components 
[188,448 components screened with single-antigen tests + ((100 percent 
- 80 percent completion rate) x 115,228 components screened with multi-
antigen tests)] requiring action. At a total unit cost of $184 ($66 + 
$118) per component triggering ``lookback'', the estimated one-time 
cost associated with the review of historical testing records is about 
$39 million (211,494 components x $184 / component). If all 
retrospective ``lookbacks'' based on the multi-antigen screening test 
have been completed, consignees will only incur additional one-time 
costs of $35 million (188,448 components x $184 / component).
---------------------------------------------------------------------------

    \5\ This differs from the 105,706 components that CDC estimated 
for collection establishments because some consignees identified, 
among their own collections, additional at-risk components that had 
been screened with multi-antigen tests. Moreover, CDC found that 
completion rates for retrospective ``lookback'' based on multi-
antigen tests varied for blood collection establishments (i.e., 85 
percent completion rate) and consignees (i.e., 80 percent completion 
rate).
---------------------------------------------------------------------------

    c. Total costs for consignees. Table 2 of this document shows the 
costs of the final rule for blood product consignees. Industry will 
incur up to $1.7 million in annual costs for the prospective 
``lookback'' provisions and to retain records for 10 years, and up to 
$42 million in one-time costs for SOPs and the retrospective 
``lookback'' based on historical review of records. The annualized 
costs of the final rule over 10 years at 3 and 7 percent interest rates 
will be $6.5 and $7.6 million.

                   Table 2.--Costs of the Final Rule for Consignees (Transfusion Services)\1\
----------------------------------------------------------------------------------------------------------------
                                                                                   Annualized Costs ($ million)
                           Current Compliance    One-Time Costs    Annual Costs  -------------------------------
                             Rate (percent)        ($ million)      ($ million)      3 percent       7 percent
----------------------------------------------------------------------------------------------------------------
Review and revise SOPs                      0                2.7  .....