83_FR_64134 83 FR 63896 - Interpretation of the “Deemed To Be a License” Provision of the Biologics Price Competition and Innovation Act of 2009; Guidance for Industry; Availability

83 FR 63896 - Interpretation of the “Deemed To Be a License” Provision of the Biologics Price Competition and Innovation Act of 2009; Guidance for Industry; Availability

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

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

Page Range63896-63898
FR Document2018-26854

The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance for industry entitled ``Interpretation of the `Deemed To Be a License' Provision of the Biologics Price Competition and Innovation Act of 2009.'' This guidance describes 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. Specifically, this guidance describes FDA's interpretation of the ``deemed to be a license'' provision of the Biologics Price Competition and Innovation Act of 2009 (BPCI Act) for biological products that are approved under the FD&C Act as of March 23, 2020. This guidance also provides recommendations to sponsors of proposed protein products intended for submission in an application that may not receive final approval under the FD&C Act on or before March 23, 2020, to facilitate alignment of product development plans with FDA's interpretation of the transition provision of the BPCI Act.

Federal Register, Volume 83 Issue 238 (Wednesday, December 12, 2018)
[Federal Register Volume 83, Number 238 (Wednesday, December 12, 2018)]
[Notices]
[Pages 63896-63898]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-26854]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

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


Interpretation of the ``Deemed To Be a License'' Provision of the 
Biologics Price Competition and Innovation Act of 2009; Guidance for 
Industry; Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of availability.

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

SUMMARY: The Food and Drug Administration (FDA or Agency) is announcing 
the availability of a final guidance for industry entitled 
``Interpretation of the `Deemed To Be a License' Provision of the 
Biologics Price Competition and Innovation Act of 2009.'' This guidance 
describes 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. Specifically, this 
guidance describes FDA's interpretation of the ``deemed to be a 
license'' provision of the Biologics Price Competition and Innovation 
Act of 2009 (BPCI Act) for biological products that are approved under 
the FD&C Act as of March 23, 2020. This guidance also provides 
recommendations to sponsors of proposed protein products intended for 
submission in an application that may not receive final approval under 
the FD&C Act on or before March 23, 2020, to facilitate alignment of 
product development plans with FDA's interpretation of the transition 
provision of the BPCI Act.

DATES: The announcement of the guidance is published in the Federal 
Register on December 12, 2018.

ADDRESSES: You may submit either electronic or written comments on 
Agency guidances 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 ``Interpretation of the `Deemed To Be a License' 
Provision of the Biologics Price Competition and Innovation Act of 
2009; Guidance for Industry; Availability.'' 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

[[Page 63897]]

``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 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 guidance document.

FOR FURTHER INFORMATION CONTACT: Janice 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; or Stephen Ripley, Center for Biologics Evaluation and 
Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 
71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.

SUPPLEMENTARY INFORMATION:

I. Background

    FDA is announcing the availability of a guidance for industry 
entitled ``Interpretation of the `Deemed To Be a License' Provision of 
the Biologics Price Competition and Innovation Act of 2009.''
    This guidance describes FDA's interpretation of the provision of 
the BPCI Act under which an application for a biological product 
approved under section 505 of the Federal Food, Drug, and Cosmetic Act 
(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. Specifically, this guidance describes 
FDA's interpretation of the ``deemed to be a license'' provision in 
section 7002(e) of the BPCI Act for biological products that are 
approved under section 505 of the FD&C Act as of March 23, 2020 (the 
transition date). This guidance also provides recommendations to 
sponsors of proposed protein products intended for submission in an 
application that may not receive final approval under section 505 of 
the FD&C Act on or before March 23, 2020, to facilitate alignment of 
product development plans with FDA's interpretation of section 7002(e) 
of the BPCI Act.
    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 a ``biological 
product.'' FDA 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)-(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). Among other things, while section 7002(e)(4) of the BPCI Act 
explicitly provides that an approved application under section 505 of 
the FD&C Act shall be deemed to be a license on March 23, 2020, the 
statute does not provide a means for deeming an approved new drug 
application (NDA) to be an approved biologics license application (BLA) 
prior to, or after, the transition date. Therefore, FDA interprets 
section 7002(e) of the BPCI Act to plainly mean that, on March 23, 
2020, only approved NDAs will be deemed to be BLAs. After March 23, 
2020, the Agency will not approve any application submitted under 
section 505 of the FD&C Act for a biological product subject to the 
transition provision that is pending or tentatively approved. Such an 
application may, for example, be withdrawn and submitted under section 
351(a) or 351(k) of the PHS Act, as appropriate. In the final guidance, 
FDA provides recommendations to minimize the impact on development 
programs for any proposed biological 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.
    In the Federal Register of March 14, 2016 (81 FR 13373), FDA 
announced the availability of the draft of this guidance. FDA received 
several comments on the draft guidance, and those comments were 
considered as the guidance was finalized. This final guidance explains 
that FDA interprets section 7002(e) of the BPCI Act and section 351 of 
the PHS Act to mean that an approved NDA for a biological product that 
will be deemed to be ``licensed'' under section 351(a) of the PHS Act 
on March 23, 2020, can be a reference product for a proposed biosimilar 
product or a proposed interchangeable product (see section 351(i)(4) of 
the PHS Act). However, a biological product that was first approved in 
an NDA under section 505 of the FD&C Act and deemed ``licensed'' under 
section 351(a) of the PHS Act on March 23, 2020, will not have been 
``first licensed under subsection (a)'' for purposes of section 
351(k)(7) of the PHS Act. Thus, such a biological product will not be 
eligible for exclusivity under section 351(k)(7)(A) and (B) of the PHS 
Act. Moreover, FDA interprets the limitations on eligibility for 
reference product exclusivity in section 351(k)(7)(C) of the PHS Act to 
apply to any reference product. The guidance also clarifies the 
Agency's approach to supplements submitted to an approved NDA for a 
biological product before March 23, 2020, that are pending on the 
transition date.
    This guidance is being issued consistent with FDA's good guidance 
practices regulation (21 CFR 10.115). The guidance represents the 
current thinking of FDA on ``Interpretation of the `Deemed To Be a 
License' Provision of the Biologics Price Competition and Innovation 
Act of 2009.'' It does not

[[Page 63898]]

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

II. Paperwork Reduction Act of 1995

    This 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 312 has been approved under 
OMB control number 0910-0014; 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 part 601 has been approved under 
OMB control number 0910-0338; and the collection of information for 
applications submitted under section 351(k) of the PHS Act has been 
approved under OMB control number 0910-0719; the collection of 
information in FDA's guidance for industry entitled ``Formal Meetings 
Between the FDA and Biosimilar Biological Product Sponsors or 
Applicants'' has been approved under OMB control number 0910-0802; and 
the collection of information in FDA's guidance for industry entitled 
``Formal Meetings Between the FDA and Sponsors or Applicants of PDUFA 
Products'' has been approved under OMB control number 0910-0429.

III. Electronic Access

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

    Dated: December 6, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-26854 Filed 12-11-18; 8:45 am]
BILLING CODE 4164-01-P



                                              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.
amozie on DSK3GDR082PROD with NOTICES1




                                              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


                                         VerDate Sep<11>2014   18:39 Dec 11, 2018   Jkt 247001   PO 00000   Frm 00072   Fmt 4703   Sfmt 4703   E:\FR\FM\12DEN1.SGM   12DEN1


                                                                       Federal Register / Vol. 83, No. 238 / Wednesday, December 12, 2018 / Notices                                            63897

                                              ‘‘Search’’ box and follow the prompts                   not receive final approval under section              an approved new drug application
                                              and/or go to the Dockets Management                     505 of the FD&C Act on or before March                (NDA) to be an approved biologics
                                              Staff, 5630 Fishers Lane, Rm. 1061,                     23, 2020, to facilitate alignment of                  license application (BLA) prior to, or
                                              Rockville, MD 20852.                                    product development plans with FDA’s                  after, the transition date. Therefore, FDA
                                                 You may submit comments on any                       interpretation of section 7002(e) of the              interprets section 7002(e) of the BPCI
                                              guidance at any time (see 21 CFR                        BPCI Act.                                             Act to plainly mean that, on March 23,
                                              10.115(g)(5)).                                             Although the majority of therapeutic               2020, only approved NDAs will be
                                                 Submit written requests for single                   biological products have been licensed                deemed to be BLAs. After March 23,
                                              copies of this guidance to the Division                 under section 351 of the PHS Act, some                2020, the Agency will not approve any
                                              of Drug Information, Center for Drug                    protein products historically have been               application submitted under section 505
                                              Evaluation and Research, Food and                       approved under section 505 of the FD&C                of the FD&C Act for a biological product
                                              Drug Administration, 10001 New                          Act. On March 23, 2010, the BPCI Act                  subject to the transition provision that is
                                              Hampshire Ave., Hillandale Building,                    was enacted as part of the Patient                    pending or tentatively approved. Such
                                              4th Floor, Silver Spring, MD 20993–                     Protection and Affordable Care Act                    an application may, for example, be
                                              0002; or to the Office of                               (Pub. L. 111–148). The BPCI Act                       withdrawn and submitted under section
                                              Communication, Outreach and                             clarified the statutory authority under               351(a) or 351(k) of the PHS Act, as
                                              Development, Center for Biologics                       which certain protein products will be                appropriate. In the final guidance, FDA
                                              Evaluation and Research, Food and                       regulated by amending the definition of               provides recommendations to minimize
                                              Drug Administration, 10903 New                          a ‘‘biological product’’ in section 351(i)            the impact on development programs
                                              Hampshire Ave., Bldg. 71, Rm. 3128,                     of the PHS Act to include a ‘‘protein                 for any proposed biological products
                                              Silver Spring, MD 20993–0002. Send                      (except any chemically synthesized                    intended for submission under section
                                              one self-addressed adhesive label to                    polypeptide),’’ and describing                        505 of the FD&C Act that may not be
                                              assist that office in processing your                   procedures for submission of a                        able to receive final approval by March
                                              requests. See the SUPPLEMENTARY                         marketing application for a ‘‘biological              23, 2020.
                                              INFORMATION section for electronic                      product.’’ FDA previously stated its                     In the Federal Register of March 14,
                                              access to the guidance document.                        interpretation of the statutory terms                 2016 (81 FR 13373), FDA announced the
                                                                                                      ‘‘protein’’ and ‘‘chemically synthesized              availability of the draft of this guidance.
                                              FOR FURTHER INFORMATION CONTACT:
                                                                                                      polypeptide’’ in the amended definition               FDA received several comments on the
                                              Janice Weiner, Center for Drug
                                                                                                      of ‘‘biological product’’ (see FDA’s draft            draft guidance, and those comments
                                              Evaluation and Research, Food and
                                                                                                      guidance for industry entitled ‘‘New and              were considered as the guidance was
                                              Drug Administration, 10903 New
                                                                                                      Revised Draft Q&As on Biosimilar                      finalized. This final guidance explains
                                              Hampshire Ave., Bldg. 51, Rm. 6270,
                                                                                                      Development and the BPCI Act                          that FDA interprets section 7002(e) of
                                              Silver Spring, MD 20993–0002, 301–
                                                                                                      (Revision 2),’’ available on FDA’s                    the BPCI Act and section 351 of the PHS
                                              796–3475; or Stephen Ripley, Center for
                                                                                                      website at https://www.fda.gov/Drugs/                 Act to mean that an approved NDA for
                                              Biologics Evaluation and Research,                      GuidanceComplianceRegulatory                          a biological product that will be deemed
                                              Food and Drug Administration, 10903                     Information/Guidances/default.htm).                   to be ‘‘licensed’’ under section 351(a) of
                                              New Hampshire Ave., Bldg. 71, Rm.                       Elsewhere in this issue of the Federal                the PHS Act on March 23, 2020, can be
                                              7301, Silver Spring, MD 20993–0002,                     Register, FDA also has issued a                       a reference product for a proposed
                                              240–402–7911.                                           proposed rule to amend its regulation                 biosimilar product or a proposed
                                              SUPPLEMENTARY INFORMATION:                              that defines ‘‘biological product’’ to                interchangeable product (see section
                                              I. Background                                           incorporate changes made by the BPCI                  351(i)(4) of the PHS Act). However, a
                                                                                                      Act, and to provide its interpretation of             biological product that was first
                                                 FDA is announcing the availability of                the statutory terms ‘‘protein’’ and                   approved in an NDA under section 505
                                              a guidance for industry entitled                        ‘‘chemically synthesized polypeptide.’’               of the FD&C Act and deemed ‘‘licensed’’
                                              ‘‘Interpretation of the ‘Deemed To Be a                 When final, this regulation will codify               under section 351(a) of the PHS Act on
                                              License’ Provision of the Biologics Price               FDA’s interpretation of these terms.                  March 23, 2020, will not have been
                                              Competition and Innovation Act of                          The BPCI Act requires that a                       ‘‘first licensed under subsection (a)’’ for
                                              2009.’’                                                 marketing application for a ‘‘biological              purposes of section 351(k)(7) of the PHS
                                                 This guidance describes FDA’s                        product’’ (that previously could have                 Act. Thus, such a biological product
                                              interpretation of the provision of the                  been submitted under section 505 of the               will not be eligible for exclusivity under
                                              BPCI Act under which an application                     FD&C Act) must be submitted under                     section 351(k)(7)(A) and (B) of the PHS
                                              for a biological product approved under                 section 351 of the PHS Act; this                      Act. Moreover, FDA interprets the
                                              section 505 of the Federal Food, Drug,                  requirement is subject to certain                     limitations on eligibility for reference
                                              and Cosmetic Act (FD&C Act) (21 U.S.C.                  exceptions during a 10-year transition                product exclusivity in section
                                              355) as of March 23, 2020, will be                      period ending on March 23, 2020 (see                  351(k)(7)(C) of the PHS Act to apply to
                                              deemed to be a license for the biological               section 7002(e)(1)–(3) and (e)(5) of the              any reference product. The guidance
                                              product under section 351 of the PHS                    BPCI Act). On March 23, 2020, an                      also clarifies the Agency’s approach to
                                              Act (42 U.S.C. 262) on March 23, 2020.                  approved application for a biological                 supplements submitted to an approved
                                              Specifically, this guidance describes                   product under section 505 of the FD&C                 NDA for a biological product before
                                              FDA’s interpretation of the ‘‘deemed to                 Act shall be deemed to be a license for               March 23, 2020, that are pending on the
                                              be a license’’ provision in section                     the biological product under section 351              transition date.
                                              7002(e) of the BPCI Act for biological                  of the PHS Act (see section 7002(e)(4) of                This guidance is being issued
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                                              products that are approved under                        the BPCI Act). Among other things,                    consistent with FDA’s good guidance
                                              section 505 of the FD&C Act as of March                 while section 7002(e)(4) of the BPCI Act              practices regulation (21 CFR 10.115).
                                              23, 2020 (the transition date). This                    explicitly provides that an approved                  The guidance represents the current
                                              guidance also provides                                  application under section 505 of the                  thinking of FDA on ‘‘Interpretation of
                                              recommendations to sponsors of                          FD&C Act shall be deemed to be a                      the ‘Deemed To Be a License’ Provision
                                              proposed protein products intended for                  license on March 23, 2020, the statute                of the Biologics Price Competition and
                                              submission in an application that may                   does not provide a means for deeming                  Innovation Act of 2009.’’ It does not


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                                              63898                    Federal Register / Vol. 83, No. 238 / Wednesday, December 12, 2018 / Notices

                                              establish any rights for any person and                 DEPARTMENT OF HEALTH AND                              identifies you in the body of your
                                              is not binding on FDA or the public.                    HUMAN SERVICES                                        comments, that information will be
                                              You can use an alternative approach if                                                                        posted on https://www.regulations.gov.
                                              it satisfies the requirements of the                    Food and Drug Administration                            • If you want to submit a comment
                                              applicable statutes and regulations. This               [Docket No. FDA–2011–D–0611]
                                                                                                                                                            with confidential information that you
                                              guidance is not subject to Executive                                                                          do not wish to be made available to the
                                              Order 12866.                                            New and Revised Draft Q&As on                         public, submit the comment as a
                                                                                                      Biosimilar Development and the                        written/paper submission and in the
                                              II. Paperwork Reduction Act of 1995                     Biologics Price Competition and                       manner detailed (see ‘‘Written/Paper
                                                                                                      Innovation Act (Revision 2); Draft                    Submissions’’ and ‘‘Instructions’’).
                                                This guidance refers to previously
                                                                                                      Guidance for Industry; Availability                   Written/Paper Submissions
                                              approved collections of information
                                              found in FDA regulations. These                         AGENCY:    Food and Drug Administration,                 Submit written/paper submissions as
                                              collections of information are subject to               HHS.                                                  follows:
                                              review by the Office of Management and                  ACTION:   Notice of availability.                        • Mail/Hand delivery/Courier (for
                                              Budget (OMB) under the Paperwork                                                                              written/paper submissions): Dockets
                                                                                                      SUMMARY:   The Food and Drug                          Management Staff (HFA–305), Food and
                                              Reduction Act of 1995 (44 U.S.C. 3501–
                                                                                                      Administration (FDA or Agency) is                     Drug Administration, 5630 Fishers
                                              3520). The collection of information in
                                                                                                      announcing the availability of a draft                Lane, Rm. 1061, Rockville, MD 20852.
                                              21 CFR part 312 has been approved                       guidance for industry entitled ‘‘New and                 • For written/paper comments
                                              under OMB control number 0910–0014;                     Revised Draft Q&As on Biosimilar                      submitted to the Dockets Management
                                              the collection of information in 21 CFR                 Development and the BPCI Act                          Staff, FDA will post your comment, as
                                              part 314 has been approved under OMB                    (Revision 2).’’ The question and answer               well as any attachments, except for
                                              control number 0910–0001; the                           (Q&A) format is intended to inform                    information submitted, marked and
                                              collection of information in 21 CFR part                prospective applicants and facilitate the             identified, as confidential, if submitted
                                              601 has been approved under OMB                         development of proposed biosimilars                   as detailed in ‘‘Instructions.’’
                                              control number 0910–0338; and the                       and proposed interchangeable                             Instructions: All submissions received
                                              collection of information for                           biosimilars, as well as to describe FDA’s             must include the Docket No. FDA–
                                              applications submitted under section                    interpretation of certain statutory                   2011–D–0611 for ‘‘New and Revised
                                              351(k) of the PHS Act has been                          requirements added by the Biologics                   Draft Q&As on Biosimilar Development
                                              approved under OMB control number                       Price Competition and Innovation Act of               and the BPCI Act (Revision 2); Draft
                                              0910–0719; the collection of                            2009 (BPCI Act). This draft guidance                  Guidance for Industry.’’ Received
                                              information in FDA’s guidance for                       document revises the draft guidance                   comments will be placed in the docket
                                              industry entitled ‘‘Formal Meetings                     document entitled ‘‘Biosimilars:                      and, except for those submitted as
                                              Between the FDA and Biosimilar                          Additional Questions and Answers                      ‘‘Confidential Submissions,’’ publicly
                                              Biological Product Sponsors or                          Regarding Implementation of the                       viewable at https://www.regulations.gov
                                              Applicants’’ has been approved under                    Biologics Price Competition and                       or at the Dockets Management Staff
                                              OMB control number 0910–0802; and                       Innovation Act of 2009,’’ issued May 13,              between 9 a.m. and 4 p.m., Monday
                                              the collection of information in FDA’s                  2015, to provide new and revised Q&As.                through Friday.
                                                                                                      DATES: Submit either electronic or                       • Confidential Submissions—To
                                              guidance for industry entitled ‘‘Formal
                                                                                                      written comments on the draft guidance                submit a comment with confidential
                                              Meetings Between the FDA and
                                                                                                      by February 11, 2019 to ensure that the               information that you do not wish to be
                                              Sponsors or Applicants of PDUFA                                                                               made publicly available, submit your
                                              Products’’ has been approved under                      Agency considers your comment on this
                                                                                                      draft guidance before it begins work on               comments only as a written/paper
                                              OMB control number 0910–0429.                                                                                 submission. You should submit two
                                                                                                      the final version of the guidance.
                                              III. Electronic Access                                  ADDRESSES: You may submit comments                    copies total. One copy will include the
                                                                                                      on any guidance at any time as follows:               information you claim to be confidential
                                                Persons with access to the internet                                                                         with a heading or cover note that states
                                              may obtain the guidance at either                       Electronic Submissions                                ‘‘THIS DOCUMENT CONTAINS
                                              https://www.fda.gov/Drugs/Guidance                        Submit electronic comments in the                   CONFIDENTIAL INFORMATION.’’ The
                                              ComplianceRegulatoryInformation/                        following way:                                        Agency will review this copy, including
                                              Guidances/default.htm, https://                           • Federal eRulemaking Portal:                       the claimed confidential information, in
                                              www.fda.gov/BiologicsBloodVaccines/                     https://www.regulations.gov. Follow the               its consideration of comments. The
                                              GuidanceComplianceRegulatory                            instructions for submitting comments.                 second copy, which will have the
                                              Information/Guidances/default.htm, or                   Comments submitted electronically,                    claimed confidential information
                                              https://www.regulations.gov.                            including attachments, to https://                    redacted/blacked out, will be available
                                                                                                      www.regulations.gov will be posted to                 for public viewing and posted on
                                                Dated: December 6, 2018.                              the docket unchanged. Because your                    https://www.regulations.gov. Submit
                                              Leslie Kux,                                             comment will be made public, you are                  both copies to the Dockets Management
                                              Associate Commissioner for Policy.                      solely responsible for ensuring that your             Staff. If you do not wish your name and
                                              [FR Doc. 2018–26854 Filed 12–11–18; 8:45 am]            comment does not include any                          contact information to be made publicly
                                                                                                      confidential information that you or a                available, you can provide this
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                                              BILLING CODE 4164–01–P
                                                                                                      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
                                                                                                      anyone else’s Social Security number, or              must identify this information as
                                                                                                      confidential business information, such               ‘‘confidential.’’ Any information marked
                                                                                                      as a manufacturing process. Please note               as ‘‘confidential’’ will not be disclosed
                                                                                                      that if you include your name, contact                except in accordance with 21 CFR 10.20
                                                                                                      information, or other information that                and other applicable disclosure law. For


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Document Created: 2018-12-12 01:40:11
Document Modified: 2018-12-12 01:40:11
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.
DatesThe announcement of the guidance is published in the Federal Register on December 12, 2018.
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; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FR Citation83 FR 63896 

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