83_FR_64132 83 FR 63894 - The “Deemed to be a License” Provision of the BPCI Act: Questions and Answers; Draft Guidance for Industry; Availability; Request for Comments on Preliminary List of Affected Applications

83 FR 63894 - The “Deemed to be a License” Provision of the BPCI Act: Questions and Answers; Draft Guidance for Industry; Availability; Request for Comments on Preliminary List of Affected Applications

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 83, Issue 238 (December 12, 2018)

Page Range63894-63896
FR Document2018-26855

The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled ``The `Deemed to be a License' Provision of the BPCI Act: Questions and Answers.'' This draft guidance is intended to provide answers to common questions about FDA's interpretation of the statutory provision under which an application for a biological product approved under the Federal Food, Drug, and Cosmetic Act (FD&C Act) as of March 23, 2020, will be deemed to be a license for the biological product under the Public Health Service Act (PHS Act) on March 23, 2020. This guidance also describes FDA's compliance policy for the labeling of biological products that will be the subject of deemed biologics license applications (BLAs). This guidance is intended to facilitate planning for the March 23, 2020, transition date and provide further clarity regarding the Agency's interpretation of this statutory provision. FDA also invites comment on the preliminary list of approved new drug applications (NDAs) for biological products under the FD&C Act that will be deemed to be BLAs on the transition date.

Federal Register, Volume 83 Issue 238 (Wednesday, December 12, 2018)
[Federal Register Volume 83, Number 238 (Wednesday, December 12, 2018)]
[Notices]
[Pages 63894-63896]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-26855]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2015-D-4750]


The ``Deemed to be a License'' Provision of the BPCI Act: 
Questions and Answers; Draft Guidance for Industry; Availability; 
Request for Comments on Preliminary List of Affected Applications

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of availability; request for comments.

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

SUMMARY: The Food and Drug Administration (FDA or Agency) is announcing 
the availability of a draft guidance for industry entitled ``The 
`Deemed to be a License' Provision of the BPCI Act: Questions and 
Answers.'' This draft guidance is intended to provide answers to common 
questions about FDA's interpretation of the statutory provision under 
which an application for a biological product approved under the 
Federal Food, Drug, and Cosmetic Act (FD&C Act) as of March 23, 2020, 
will be deemed to be a license for the biological product under the 
Public Health Service Act (PHS Act) on March 23, 2020. This guidance 
also describes FDA's compliance policy for the labeling of biological 
products that will be the subject of deemed biologics license 
applications (BLAs). This guidance is intended to facilitate planning 
for the March 23, 2020, transition date and provide further clarity 
regarding the Agency's interpretation of this statutory provision. FDA 
also invites comment on the preliminary list of approved new drug 
applications (NDAs) for biological products under the FD&C Act that 
will be deemed to be BLAs on the transition date.

DATES: Submit either electronic or written comments on the draft 
guidance by February 11, 2019 to ensure that the Agency considers your 
comment on this draft guidance before it begins work on the final 
version of the guidance.

ADDRESSES: You may submit comments on any guidance at any time as 
follows:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments. Comments submitted 
electronically, including attachments, to https://www.regulations.gov 
will be posted to the docket unchanged. Because your comment will be 
made public, you are solely responsible for ensuring that your comment 
does not include any confidential information that you or a third party 
may not wish to be posted, such as medical information, your or anyone 
else's Social Security number, or confidential business information, 
such as a manufacturing process. Please note that if you include your 
name, contact information, or other information that identifies you in 
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential 
information that you do not wish to be made available to the public, 
submit the comment as a written/paper submission and in the manner 
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper 
submissions): Dockets Management Staff (HFA-305), Food and Drug 
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets 
Management Staff, FDA will post your comment, as well as any 
attachments, except for information submitted, marked and identified, 
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No. 
FDA-2015-D-4750 for ``The `Deemed to be a License' Provision of the 
BPCI Act: Questions and Answers; Draft Guidance for Industry.'' 
Received comments will be placed in the docket and, except for those 
submitted as ``Confidential Submissions,'' publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. 
and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit a comment with 
confidential information that you do not wish to be made publicly 
available, submit your comments only as a written/paper submission. You 
should submit two copies total. One copy will include the information 
you claim to be confidential with a heading or cover note that states 
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will 
review this copy, including the claimed confidential information, in 
its consideration of comments. The second copy, which will have the 
claimed confidential information redacted/blacked out, will be 
available for public viewing and posted on https://www.regulations.gov. 
Submit both copies to the Dockets Management Staff. If you do not wish 
your name and contact information to be made publicly available, you 
can provide this information on the cover sheet and not in the body of 
your comments and you must identify this information as 
``confidential.'' Any information marked as ``confidential'' will not 
be disclosed except in accordance with 21 CFR 10.20 and other 
applicable disclosure law. For more information about FDA's posting of 
comments to public dockets, see 80 FR 56469, September 18, 2015, or 
access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or 
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in 
the heading of this document, into the ``Search'' box and follow the 
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, 
Rm. 1061, Rockville, MD 20852.
    You may submit comments on any guidance at any time (see 21 CFR 
10.115(g)(5)).
    Submit written requests for single copies of this draft guidance to 
the Division of Drug Information, Center for Drug Evaluation and 
Research, Food and Drug Administration, 10001 New Hampshire Ave., 
Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002; or to the 
Office of Communication, Outreach and Development, Center for Biologics 
Evaluation and Research, Food and Drug Administration, 10903 New 
Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send 
one self-addressed adhesive label to assist that office in processing 
your requests. See the SUPPLEMENTARY INFORMATION section for electronic 
access to the draft guidance document.

FOR FURTHER INFORMATION CONTACT: Janice Weiner, Center for Drug 
Evaluation and Research, Food and

[[Page 63895]]

Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6270, 
Silver Spring, MD 20993-0002, 301-796-3475, [email protected]; 
or Stephen Ripley, Center for Biologics Evaluation and Research, Food 
and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7268, 
Silver Spring, MD 20993-0002, 240-402-7911, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    FDA is announcing the availability of a draft guidance for industry 
entitled ``The `Deemed to be a License' Provision of the BPCI Act: 
Questions and Answers.'' This draft guidance is intended to provide 
answers to common questions about FDA's interpretation of the 
``transition'' provision of the Biologics Price Competition and 
Innovation Act of 2009 (BPCI Act) under which an application for a 
biological product approved under section 505 of the FD&C Act (21 
U.S.C. 355) as of March 23, 2020, will be deemed to be a license for 
the biological product under section 351 of the PHS Act (42 U.S.C. 262) 
on March 23, 2020 (``the transition date''). This guidance also 
describes FDA's compliance policy for the labeling of biological 
products that will be the subject of deemed BLAs. This guidance is 
intended to facilitate planning for the transition date and provide 
further clarity regarding the Agency's interpretation of this statutory 
provision.
    Although the majority of therapeutic biological products have been 
licensed under section 351 of the PHS Act, some protein products 
historically have been approved under section 505 of the FD&C Act. On 
March 23, 2010, the BPCI Act was enacted as part of the Patient 
Protection and Affordable Care Act (Pub. L. 111-148). The BPCI Act 
clarified the statutory authority under which certain protein products 
will be regulated by amending the definition of a ``biological 
product'' in section 351(i) of the PHS Act to include a ``protein 
(except any chemically synthesized polypeptide),'' and describing 
procedures for submission of a marketing application for certain 
``biological products.'' FDA has previously stated its interpretation 
of the statutory terms ``protein'' and ``chemically synthesized 
polypeptide'' in the amended definition of ``biological product'' (see 
FDA's draft guidance for industry entitled ``New and Revised Draft Q&As 
on Biosimilar Development and the BPCI Act (Revision 2),'' available on 
FDA's website at https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/default.htm. 
Elsewhere in this issue of the Federal Register, FDA also has issued a 
proposed rule to amend its regulation that defines ``biological 
product'' to incorporate changes made by the BPCI Act, and to provide 
its interpretation of the statutory terms ``protein'' and ``chemically 
synthesized polypeptide.'' When final, this regulation will codify 
FDA's interpretation of these terms.
    The BPCI Act requires that a marketing application for a 
``biological product'' (that previously could have been submitted under 
section 505 of the FD&C Act) must be submitted under section 351 of the 
PHS Act; this requirement is subject to certain exceptions during a 10-
year transition period ending on March 23, 2020 (see section 7002(e)(1) 
to (3) and (e)(5) of the BPCI Act). On March 23, 2020, an approved 
application for a biological product under section 505 of the FD&C Act 
shall be deemed to be a license for the biological product under 
section 351 of the PHS Act (see section 7002(e)(4) of the BPCI Act).
    In the Federal Register of March 14, 2016 (81 FR 13373), FDA 
announced the availability of a draft guidance on ``Implementation of 
the `Deemed to be a License' Provision of the Biologics Price 
Competition and Innovation Act of 2009'' (Transition Policy Draft 
Guidance). In the Transition Policy Draft Guidance, FDA explains that 
because the BPCI Act expressly provides that an application that is 
approved on March 23, 2020, shall be deemed to be a license, FDA 
interprets section 7002(e) of the BPCI Act to mean that the Agency will 
not approve any application under section 505 of the FD&C Act for a 
biological product subject to the transition provisions that is pending 
or tentatively approved after March 23, 2020. Such an application may, 
for example, be withdrawn and submitted under section 351(a) or 351(k) 
of the PHS Act, as appropriate. FDA also provides recommendations to 
minimize the impact on development programs for any proposed protein 
products intended for submission under section 505 of the FD&C Act that 
may not be able to receive final approval by March 23, 2020.
    FDA received several comments on the Transition Policy Draft 
Guidance, including comments requesting that FDA provide additional 
information on administrative procedures and regulatory issues that 
would facilitate planning for the transition date. For example, 
commenters requested additional information on FDA expectations with 
respect to certain requirements for biological products regulated under 
the PHS Act that differ from requirements for drug products regulated 
under the FD&C Act. Commenters also requested information on FDA's 
approach to certain procedural issues, such as: (1) The transition of 
biological products from FDA's ``Approved Drug Products with 
Therapeutic Equivalence Evaluations'' (the Orange Book) to FDA's 
``Lists of Licensed Biological Products with Reference Product 
Exclusivity and Biosimilarity or Interchangeability Evaluations'' (the 
Purple Book); (2) whether an approved NDA will be deemed to be a 
license under section 351(a) or 351(k) of the PHS Act; (3) how BLA 
numbers will be assigned; and (4) user fee issues. This Q&A draft 
guidance is intended to address these comments and provide additional 
information to facilitate planning for the transition date.
    We invite comment on the Q&A draft guidance, including additional 
topics that may be helpful for the Agency to address in connection with 
the transition date. In particular, we invite comment on the compliance 
policy for the labeling of biological products that are the subject of 
deemed BLAs and the length of the compliance period. In addition, we 
invite comment on the factors that FDA should consider in determining 
whether a combination product composed of a biological product 
constituent part and a drug constituent part will be subject to the 
transition provision.
    We also invite comment on the preliminary list of approved 
applications for biological products under the FD&C Act that will be 
affected by the transition provision (available on FDA's website at 
https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/default.htm). If an application holder or other person believes that an 
approved NDA should be added to the list or should not be included on 
the list, the application holder or other person should submit a 
comment to the public docket established for this Q&A draft guidance 
and the list.
    This draft guidance is being issued consistent with FDA's good 
guidance practices regulation (21 CFR 10.115). The draft guidance, when 
finalized, will represent the current thinking of FDA on ``The `Deemed 
to be a License' Provision of the BPCI Act: Questions and Answers.'' It 
does not establish any rights for any person and is not binding on FDA 
or the public. You can use an alternative approach if it satisfies the 
requirements of the applicable statutes

[[Page 63896]]

and regulations. This guidance is not subject to Executive Order 12866.

II. Paperwork Reduction Act of 1995

    This draft guidance refers to previously approved collections of 
information found in FDA regulations. These collections of information 
are subject to review by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The 
collection of information in 21 CFR part 314 has been approved under 
OMB control number 0910-0001; the collection of information in 21 CFR 
parts 601 and 610 has been approved under OMB control number 0910-0338; 
the collection of information in 21 CFR 600.80 through 600.90 has been 
approved under OMB control number 0910-0308; and the collection of 
information in 21 CFR 201.56, 201.57, and 201.80 has been approved 
under OMB control number 0910-0572. In addition, the collections of 
information for applications submitted under section 351(k) of the PHS 
Act (42 U.S.C. 262(k)) have been approved under OMB control number 
0910-0719.

III. Electronic Access

    Persons with access to the internet may obtain the draft guidance 
at either https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/default.htm or 
https://www.regulations.gov.

    Dated: December 6, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-26855 Filed 12-11-18; 8:45 am]
 BILLING CODE 4164-01-P



                                              63894                    Federal Register / Vol. 83, No. 238 / Wednesday, December 12, 2018 / Notices

                                                Persons with access to the internet                   draft guidance before it begins work on               comments only as a written/paper
                                              may obtain the draft guidance at either                 the final version of the guidance.                    submission. You should submit two
                                              https://www.fda.gov/Drugs/                              ADDRESSES: You may submit comments                    copies total. One copy will include the
                                              GuidanceComplianceRegulatory                            on any guidance at any time as follows:               information you claim to be confidential
                                              Information/Guidances/default.htm or                                                                          with a heading or cover note that states
                                              https://www.regulations.gov.                            Electronic Submissions                                ‘‘THIS DOCUMENT CONTAINS
                                                Dated: December 7, 2018.
                                                                                                        Submit electronic comments in the                   CONFIDENTIAL INFORMATION.’’ The
                                                                                                      following way:                                        Agency will review this copy, including
                                              Leslie Kux,
                                                                                                        • Federal eRulemaking Portal:                       the claimed confidential information, in
                                              Associate Commissioner for Policy.                      https://www.regulations.gov. Follow the               its consideration of comments. The
                                              [FR Doc. 2018–26900 Filed 12–11–18; 8:45 am]            instructions for submitting comments.                 second copy, which will have the
                                              BILLING CODE 4164–01–P                                  Comments submitted electronically,                    claimed confidential information
                                                                                                      including attachments, to https://                    redacted/blacked out, will be available
                                                                                                      www.regulations.gov will be posted to                 for public viewing and posted on
                                              DEPARTMENT OF HEALTH AND                                the docket unchanged. Because your                    https://www.regulations.gov. Submit
                                              HUMAN SERVICES                                          comment will be made public, you are                  both copies to the Dockets Management
                                                                                                      solely responsible for ensuring that your             Staff. If you do not wish your name and
                                              Food and Drug Administration
                                                                                                      comment does not include any                          contact information to be made publicly
                                                                                                      confidential information that you or a                available, you can provide this
                                              [Docket No. FDA–2015–D–4750]                            third party may not wish to be posted,                information on the cover sheet and not
                                                                                                      such as medical information, your or                  in the body of your comments and you
                                              The ‘‘Deemed to be a License’’                          anyone else’s Social Security number, or
                                              Provision of the BPCI Act: Questions                                                                          must identify this information as
                                                                                                      confidential business information, such               ‘‘confidential.’’ Any information marked
                                              and Answers; Draft Guidance for                         as a manufacturing process. Please note
                                              Industry; Availability; Request for                                                                           as ‘‘confidential’’ will not be disclosed
                                                                                                      that if you include your name, contact                except in accordance with 21 CFR 10.20
                                              Comments on Preliminary List of                         information, or other information that
                                              Affected Applications                                                                                         and other applicable disclosure law. For
                                                                                                      identifies you in the body of your                    more information about FDA’s posting
                                              AGENCY:    Food and Drug Administration,                comments, that information will be                    of comments to public dockets, see 80
                                              HHS.                                                    posted on https://www.regulations.gov.                FR 56469, September 18, 2015, or access
                                                                                                        • If you want to submit a comment                   the information at: https://www.gpo.gov/
                                              ACTION:Notice of availability; request
                                                                                                      with confidential information that you                fdsys/pkg/FR-2015-09-18/pdf/2015-
                                              for comments.
                                                                                                      do not wish to be made available to the               23389.pdf.
                                              SUMMARY:   The Food and Drug                            public, submit the comment as a                          Docket: For access to the docket to
                                              Administration (FDA or Agency) is                       written/paper submission and in the                   read background documents or the
                                              announcing the availability of a draft                  manner detailed (see ‘‘Written/Paper                  electronic and written/paper comments
                                              guidance for industry entitled ‘‘The                    Submissions’’ and ‘‘Instructions’’).                  received, go to https://
                                              ‘Deemed to be a License’ Provision of                   Written/Paper Submissions                             www.regulations.gov and insert the
                                              the BPCI Act: Questions and Answers.’’                                                                        docket number, found in brackets in the
                                                                                                        Submit written/paper submissions as
                                              This draft guidance is intended to                                                                            heading of this document, into the
                                                                                                      follows:
                                              provide answers to common questions                                                                           ‘‘Search’’ box and follow the prompts
                                                                                                        • Mail/Hand delivery/Courier (for
                                              about FDA’s interpretation of the                                                                             and/or go to the Dockets Management
                                                                                                      written/paper submissions): Dockets
                                              statutory provision under which an                                                                            Staff, 5630 Fishers Lane, Rm. 1061,
                                                                                                      Management Staff (HFA–305), Food and
                                              application for a biological product                                                                          Rockville, MD 20852.
                                                                                                      Drug Administration, 5630 Fishers
                                              approved under the Federal Food, Drug,                                                                           You may submit comments on any
                                                                                                      Lane, Rm. 1061, Rockville, MD 20852.
                                              and Cosmetic Act (FD&C Act) as of                         • For written/paper comments                        guidance at any time (see 21 CFR
                                              March 23, 2020, will be deemed to be                    submitted to the Dockets Management                   10.115(g)(5)).
                                              a license for the biological product                    Staff, FDA will post your comment, as                    Submit written requests for single
                                              under the Public Health Service Act                     well as any attachments, except for                   copies of this draft guidance to the
                                              (PHS Act) on March 23, 2020. This                       information submitted, marked and                     Division of Drug Information, Center for
                                              guidance also describes FDA’s                           identified, as confidential, if submitted             Drug Evaluation and Research, Food
                                              compliance policy for the labeling of                   as detailed in ‘‘Instructions.’’                      and Drug Administration, 10001 New
                                              biological products that will be the                      Instructions: All submissions received              Hampshire Ave., Hillandale Building,
                                              subject of deemed biologics license                     must include the Docket No. FDA–                      4th Floor, Silver Spring, MD 20993–
                                              applications (BLAs). This guidance is                   2015–D–4750 for ‘‘The ‘Deemed to be a                 0002; or to the Office of
                                              intended to facilitate planning for the                 License’ Provision of the BPCI Act:                   Communication, Outreach and
                                              March 23, 2020, transition date and                     Questions and Answers; Draft Guidance                 Development, Center for Biologics
                                              provide further clarity regarding the                   for Industry.’’ Received comments will                Evaluation and Research, Food and
                                              Agency’s interpretation of this statutory               be placed in the docket and, except for               Drug Administration, 10903 New
                                              provision. FDA also invites comment on                  those submitted as ‘‘Confidential                     Hampshire Ave., Bldg. 71, Rm. 3128,
                                              the preliminary list of approved new                    Submissions,’’ publicly viewable at                   Silver Spring, MD 20993–0002. Send
                                              drug applications (NDAs) for biological                 https://www.regulations.gov or at the                 one self-addressed adhesive label to
amozie on DSK3GDR082PROD with NOTICES1




                                              products under the FD&C Act that will                   Dockets Management Staff between 9                    assist that office in processing your
                                              be deemed to be BLAs on the transition                  a.m. and 4 p.m., Monday through                       requests. See the SUPPLEMENTARY
                                              date.                                                   Friday.                                               INFORMATION section for electronic
                                              DATES: Submit either electronic or                        • Confidential Submissions—To                       access to the draft guidance document.
                                              written comments on the draft guidance                  submit a comment with confidential                    FOR FURTHER INFORMATION CONTACT:
                                              by February 11, 2019 to ensure that the                 information that you do not wish to be                Janice Weiner, Center for Drug
                                              Agency considers your comment on this                   made publicly available, submit your                  Evaluation and Research, Food and


                                         VerDate Sep<11>2014   18:39 Dec 11, 2018   Jkt 247001   PO 00000   Frm 00070   Fmt 4703   Sfmt 4703   E:\FR\FM\12DEN1.SGM   12DEN1


                                                                       Federal Register / Vol. 83, No. 238 / Wednesday, December 12, 2018 / Notices                                          63895

                                              Drug Administration, 10903 New                          ComplianceRegulatoryInformation/                      requirements for biological products
                                              Hampshire Ave., Bldg. 51, Rm. 6270,                     Guidances/default.htm. Elsewhere in                   regulated under the PHS Act that differ
                                              Silver Spring, MD 20993–0002, 301–                      this issue of the Federal Register, FDA               from requirements for drug products
                                              796–3475, Janice.Weiner@fda.hhs.gov;                    also has issued a proposed rule to                    regulated under the FD&C Act.
                                              or Stephen Ripley, Center for Biologics                 amend its regulation that defines                     Commenters also requested information
                                              Evaluation and Research, Food and                       ‘‘biological product’’ to incorporate                 on FDA’s approach to certain
                                              Drug Administration, 10903 New                          changes made by the BPCI Act, and to                  procedural issues, such as: (1) The
                                              Hampshire Ave., Bldg. 71, Rm. 7268,                     provide its interpretation of the                     transition of biological products from
                                              Silver Spring, MD 20993–0002, 240–                      statutory terms ‘‘protein’’ and                       FDA’s ‘‘Approved Drug Products with
                                              402–7911, Stephen.Ripley@fda.hhs.gov.                   ‘‘chemically synthesized polypeptide.’’               Therapeutic Equivalence Evaluations’’
                                              SUPPLEMENTARY INFORMATION:                              When final, this regulation will codify               (the Orange Book) to FDA’s ‘‘Lists of
                                                                                                      FDA’s interpretation of these terms.                  Licensed Biological Products with
                                              I. Background                                              The BPCI Act requires that a                       Reference Product Exclusivity and
                                                 FDA is announcing the availability of                marketing application for a ‘‘biological              Biosimilarity or Interchangeability
                                              a draft guidance for industry entitled                  product’’ (that previously could have                 Evaluations’’ (the Purple Book); (2)
                                              ‘‘The ‘Deemed to be a License’ Provision                been submitted under section 505 of the               whether an approved NDA will be
                                              of the BPCI Act: Questions and                          FD&C Act) must be submitted under                     deemed to be a license under section
                                              Answers.’’ This draft guidance is                       section 351 of the PHS Act; this                      351(a) or 351(k) of the PHS Act; (3) how
                                              intended to provide answers to common                   requirement is subject to certain                     BLA numbers will be assigned; and (4)
                                              questions about FDA’s interpretation of                 exceptions during a 10-year transition                user fee issues. This Q&A draft guidance
                                              the ‘‘transition’’ provision of the                     period ending on March 23, 2020 (see                  is intended to address these comments
                                                                                                      section 7002(e)(1) to (3) and (e)(5) of the           and provide additional information to
                                              Biologics Price Competition and
                                                                                                      BPCI Act). On March 23, 2020, an                      facilitate planning for the transition
                                              Innovation Act of 2009 (BPCI Act) under
                                                                                                      approved application for a biological                 date.
                                              which an application for a biological
                                                                                                      product under section 505 of the FD&C                    We invite comment on the Q&A draft
                                              product approved under section 505 of
                                                                                                      Act shall be deemed to be a license for               guidance, including additional topics
                                              the FD&C Act (21 U.S.C. 355) as of
                                                                                                      the biological product under section 351              that may be helpful for the Agency to
                                              March 23, 2020, will be deemed to be
                                                                                                      of the PHS Act (see section 7002(e)(4) of             address in connection with the
                                              a license for the biological product
                                                                                                      the BPCI Act).                                        transition date. In particular, we invite
                                              under section 351 of the PHS Act (42                       In the Federal Register of March 14,
                                              U.S.C. 262) on March 23, 2020 (‘‘the                                                                          comment on the compliance policy for
                                                                                                      2016 (81 FR 13373), FDA announced the
                                              transition date’’). This guidance also                                                                        the labeling of biological products that
                                                                                                      availability of a draft guidance on
                                              describes FDA’s compliance policy for                                                                         are the subject of deemed BLAs and the
                                                                                                      ‘‘Implementation of the ‘Deemed to be a
                                              the labeling of biological products that                                                                      length of the compliance period. In
                                                                                                      License’ Provision of the Biologics Price
                                              will be the subject of deemed BLAs.                                                                           addition, we invite comment on the
                                                                                                      Competition and Innovation Act of
                                              This guidance is intended to facilitate                 2009’’ (Transition Policy Draft                       factors that FDA should consider in
                                              planning for the transition date and                    Guidance). In the Transition Policy                   determining whether a combination
                                              provide further clarity regarding the                   Draft Guidance, FDA explains that                     product composed of a biological
                                              Agency’s interpretation of this statutory               because the BPCI Act expressly provides               product constituent part and a drug
                                              provision.                                              that an application that is approved on               constituent part will be subject to the
                                                 Although the majority of therapeutic                 March 23, 2020, shall be deemed to be                 transition provision.
                                              biological products have been licensed                  a license, FDA interprets section 7002(e)                We also invite comment on the
                                              under section 351 of the PHS Act, some                  of the BPCI Act to mean that the Agency               preliminary list of approved
                                              protein products historically have been                 will not approve any application under                applications for biological products
                                              approved under section 505 of the FD&C                  section 505 of the FD&C Act for a                     under the FD&C Act that will be affected
                                              Act. On March 23, 2010, the BPCI Act                    biological product subject to the                     by the transition provision (available on
                                              was enacted as part of the Patient                      transition provisions that is pending or              FDA’s website at https://www.fda.gov/
                                              Protection and Affordable Care Act                      tentatively approved after March 23,                  Drugs/GuidanceComplianceRegulatory
                                              (Pub. L. 111–148). The BPCI Act                         2020. Such an application may, for                    Information/default.htm). If an
                                              clarified the statutory authority under                 example, be withdrawn and submitted                   application holder or other person
                                              which certain protein products will be                  under section 351(a) or 351(k) of the                 believes that an approved NDA should
                                              regulated by amending the definition of                 PHS Act, as appropriate. FDA also                     be added to the list or should not be
                                              a ‘‘biological product’’ in section 351(i)              provides recommendations to minimize                  included on the list, the application
                                              of the PHS Act to include a ‘‘protein                   the impact on development programs                    holder or other person should submit a
                                              (except any chemically synthesized                      for any proposed protein products                     comment to the public docket
                                              polypeptide),’’ and describing                          intended for submission under section                 established for this Q&A draft guidance
                                              procedures for submission of a                          505 of the FD&C Act that may not be                   and the list.
                                              marketing application for certain                       able to receive final approval by March                  This draft guidance is being issued
                                              ‘‘biological products.’’ FDA has                        23, 2020.                                             consistent with FDA’s good guidance
                                              previously stated its interpretation of                    FDA received several comments on                   practices regulation (21 CFR 10.115).
                                              the statutory terms ‘‘protein’’ and                     the Transition Policy Draft Guidance,                 The draft guidance, when finalized, will
                                              ‘‘chemically synthesized polypeptide’’                  including comments requesting that                    represent the current thinking of FDA
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                                              in the amended definition of ‘‘biological               FDA provide additional information on                 on ‘‘The ‘Deemed to be a License’
                                              product’’ (see FDA’s draft guidance for                 administrative procedures and                         Provision of the BPCI Act: Questions
                                              industry entitled ‘‘New and Revised                     regulatory issues that would facilitate               and Answers.’’ It does not establish any
                                              Draft Q&As on Biosimilar Development                    planning for the transition date. For                 rights for any person and is not binding
                                              and the BPCI Act (Revision 2),’’                        example, commenters requested                         on FDA or the public. You can use an
                                              available on FDA’s website at https://                  additional information on FDA                         alternative approach if it satisfies the
                                              www.fda.gov/Drugs/Guidance                              expectations with respect to certain                  requirements of the applicable statutes


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                                              63896                    Federal Register / Vol. 83, No. 238 / Wednesday, December 12, 2018 / Notices

                                              and regulations. This guidance is not                   interpretation of the statutory provision                • Mail/Hand delivery/Courier (for
                                              subject to Executive Order 12866.                       under which an application for a                      written/paper submissions): Dockets
                                                                                                      biological product approved under the                 Management Staff (HFA–305), Food and
                                              II. Paperwork Reduction Act of 1995
                                                                                                      Federal Food, Drug, and Cosmetic Act                  Drug Administration, 5630 Fishers
                                                 This draft guidance refers to                        (FD&C Act) as of March 23, 2020, will                 Lane, Rm. 1061, Rockville, MD 20852.
                                              previously approved collections of                      be deemed to be a license for the                        • For written/paper comments
                                              information found in FDA regulations.                   biological product under the Public                   submitted to the Dockets Management
                                              These collections of information are                    Health Service Act (PHS Act) on March                 Staff, FDA will post your comment, as
                                              subject to review by the Office of                      23, 2020. Specifically, this guidance                 well as any attachments, except for
                                              Management and Budget (OMB) under                       describes FDA’s interpretation of the                 information submitted, marked and
                                              the Paperwork Reduction Act of 1995                     ‘‘deemed to be a license’’ provision of               identified, as confidential, if submitted
                                              (44 U.S.C. 3501–3520). The collection of                the Biologics Price Competition and                   as detailed in ‘‘Instructions.’’
                                              information in 21 CFR part 314 has been                 Innovation Act of 2009 (BPCI Act) for                    Instructions: All submissions received
                                              approved under OMB control number                       biological products that are approved                 must include the Docket No. FDA–
                                              0910–0001; the collection of                            under the FD&C Act as of March 23,                    2015–D–4750 for ‘‘Interpretation of the
                                              information in 21 CFR parts 601 and                     2020. This guidance also provides                     ‘Deemed To Be a License’ Provision of
                                              610 has been approved under OMB                         recommendations to sponsors of                        the Biologics Price Competition and
                                              control number 0910–0338; the                           proposed protein products intended for                Innovation Act of 2009; Guidance for
                                              collection of information in 21 CFR                     submission in an application that may                 Industry; Availability.’’ Received
                                              600.80 through 600.90 has been                          not receive final approval under the                  comments will be placed in the docket
                                              approved under OMB control number                       FD&C Act on or before March 23, 2020,                 and, except for those submitted as
                                              0910–0308; and the collection of                        to facilitate alignment of product                    ‘‘Confidential Submissions,’’ publicly
                                              information in 21 CFR 201.56, 201.57,                   development plans with FDA’s                          viewable at https://www.regulations.gov
                                              and 201.80 has been approved under                      interpretation of the transition provision            or at the Dockets Management Staff
                                              OMB control number 0910–0572. In                        of the BPCI Act.                                      between 9 a.m. and 4 p.m., Monday
                                              addition, the collections of information                                                                      through Friday.
                                                                                                      DATES: The announcement of the                           • Confidential Submissions—To
                                              for applications submitted under section
                                                                                                      guidance is published in the Federal                  submit a comment with confidential
                                              351(k) of the PHS Act (42 U.S.C. 262(k))
                                                                                                      Register on December 12, 2018.                        information that you do not wish to be
                                              have been approved under OMB control
                                              number 0910–0719.                                       ADDRESSES: You may submit either                      made publicly available, submit your
                                                                                                      electronic or written comments on                     comments only as a written/paper
                                              III. Electronic Access                                  Agency guidances at any time as                       submission. You should submit two
                                                 Persons with access to the internet                  follows:                                              copies total. One copy will include the
                                              may obtain the draft guidance at either                 Electronic Submissions                                information you claim to be confidential
                                              https://www.fda.gov/Drugs/Guidance                                                                            with a heading or cover note that states
                                              ComplianceRegulatoryInformation/                          Submit electronic comments in the                   ‘‘THIS DOCUMENT CONTAINS
                                              Guidances/default.htm or https://                       following way:                                        CONFIDENTIAL INFORMATION.’’ The
                                              www.regulations.gov.                                      • Federal eRulemaking Portal:                       Agency will review this copy, including
                                                                                                      https://www.regulations.gov. Follow the               the claimed confidential information, in
                                                Dated: December 6, 2018.
                                                                                                      instructions for submitting comments.                 its consideration of comments. The
                                              Leslie Kux,
                                                                                                      Comments submitted electronically,                    second copy, which will have the
                                              Associate Commissioner for Policy.                      including attachments, to https://                    claimed confidential information
                                              [FR Doc. 2018–26855 Filed 12–11–18; 8:45 am]            www.regulations.gov will be posted to                 redacted/blacked out, will be available
                                              BILLING CODE 4164–01–P                                  the docket unchanged. Because your                    for public viewing and posted on
                                                                                                      comment will be made public, you are                  https://www.regulations.gov. Submit
                                                                                                      solely responsible for ensuring that your             both copies to the Dockets Management
                                              DEPARTMENT OF HEALTH AND                                comment does not include any                          Staff. If you do not wish your name and
                                              HUMAN SERVICES                                          confidential information that you or a                contact information to be made publicly
                                              Food and Drug Administration                            third party may not wish to be posted,                available, you can provide this
                                                                                                      such as medical information, your or                  information on the cover sheet and not
                                              [Docket No. FDA–2015–D–4750]                            anyone else’s Social Security number, or              in the body of your comments and you
                                                                                                      confidential business information, such               must identify this information as
                                              Interpretation of the ‘‘Deemed To Be a                  as a manufacturing process. Please note               ‘‘confidential.’’ Any information marked
                                              License’’ Provision of the Biologics                    that if you include your name, contact                as ‘‘confidential’’ will not be disclosed
                                              Price Competition and Innovation Act                    information, or other information that                except in accordance with 21 CFR 10.20
                                              of 2009; Guidance for Industry;                         identifies you in the body of your                    and other applicable disclosure law. For
                                              Availability                                            comments, that information will be                    more information about FDA’s posting
                                              AGENCY:    Food and Drug Administration,                posted on https://www.regulations.gov.                of comments to public dockets, see 80
                                              HHS.                                                      • If you want to submit a comment                   FR 56469, September 18, 2015, or access
                                              ACTION:   Notice of availability.                       with confidential information that you                the information at: https://www.gpo.gov/
                                                                                                      do not wish to be made available to the               fdsys/pkg/FR-2015-09-18/pdf/2015-
                                              SUMMARY:   The Food and Drug                            public, submit the comment as a                       23389.pdf.
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                                              Administration (FDA or Agency) is                       written/paper submission and in the                      Docket: For access to the docket to
                                              announcing the availability of a final                  manner detailed (see ‘‘Written/Paper                  read background documents or the
                                              guidance for industry entitled                          Submissions’’ and ‘‘Instructions’’).                  electronic and written/paper comments
                                              ‘‘Interpretation of the ‘Deemed To Be a                                                                       received, go to https://
                                              License’ Provision of the Biologics Price               Written/Paper Submissions                             www.regulations.gov and insert the
                                              Competition and Innovation Act of                         Submit written/paper submissions as                 docket number, found in brackets in the
                                              2009.’’ This guidance describes FDA’s                   follows:                                              heading of this document, into the


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Document Created: 2018-12-12 01:40:15
Document Modified: 2018-12-12 01:40:15
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of availability; request for comments.
DatesSubmit either electronic or written comments on the draft guidance by February 11, 2019 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
ContactJanice Weiner, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6270, Silver Spring, MD 20993-0002, 301-796-3475, [email protected]; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7268, Silver Spring, MD 20993-0002, 240-402-7911, [email protected]
FR Citation83 FR 63894 

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