[Federal Register Volume 85, Number 232 (Wednesday, December 2, 2020)]
[Notices]
[Pages 77428-77430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26609]



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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

[Docket No. 201124-0316]
RIN 0694-XC068


Notice of Request for Public Comments on Condition of the Public 
Health Industrial Base and Recommend Policies and Actions To Strengthen 
the Public Health Industrial Base To Ensure Essential Medicines, 
Medical Countermeasures, and Critical Inputs Are Made in the United 
States

AGENCY: Bureau of Industry and Security, Office of Technology 
Evaluation, U.S. Department of Commerce.

ACTION: Notice of request for public comments.

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SUMMARY: On August 6, 2020, President Trump issued an Executive order, 
Combating Public Health Emergencies and Strengthening National Security 
by Ensuring Essential Medicines, Medical Countermeasures, and Critical 
Inputs Are Made in the United States. Among other directives, the E.O. 
directed that, by February 2, 2021, the Secretary of Commerce shall 
submit a report to the Director of the Office of Management and Budget, 
the Assistant to the President for National Security Affairs, the 
Director of the National Economic Council, and the Director of the 
Office of Trade and Manufacturing Policy, describing any change in the 
status of the Public Health Industrial Base (PHIB) and recommending 
initiatives to strengthen the PHIB. This notice requests comments from 
the public to assist the Department of Commerce (referred to henceforth 
as ``Commerce'') in preparing this report on the condition of the PHIB 
and recommending policies and actions to strengthen the PHIB.

DATES: The due date for filing comments is December 23, 2020.

ADDRESSES: Submissions: All written comments on the notice must be 
addressed to PHIB Study and filed through the Federal eRulemaking 
Portal: http://www.regulations.gov. To submit comments via http://www.regulations.gov, enter docket number BIS-2020-0034 on the home page 
and click ``search.'' The site will provide a search results page 
listing all documents associated with this docket. Find a reference to 
this notice and click on the link entitled ``Comment Now!'' (For 
further information on using http://www.regulations.gov, please consult 
the resources provided on the website by clicking on ``How to Use This 
Site.'')

FOR FURTHER INFORMATION CONTACT: Jason Bolton at 202-482-5936 or via 
email [email protected]; [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On August 6, 2020, President Trump issued Executive Order 13944, 
Combating Public Health Emergencies and Strengthening National Security 
by Ensuring Essential Medicines, Medical Countermeasures, and Critical 
Inputs Are Made in the United States (E.O. 13944). Section 1 of E.O. 
13944 stated that the United States must protect U.S. citizens, 
critical infrastructure, military forces, and the economy against 
outbreaks of emerging infectious diseases as well as chemical, 
biological, radiological, and nuclear (CBRN) threats. To achieve this, 
the United States must have a strong Public Health Industrial Base 
(PHIB) with resilient domestic supply chains for the Essential 
Medicines, Medical Countermeasures, and Critical Inputs deemed 
necessary for the United States. As defined in E.O. 13944, ``Essential 
Medicines'' are those Essential Medicines deemed necessary for the 
United States pursuant to section 3(c) of E.O. 13944; ``Medical 
Countermeasures'' means items that meet the definition of ``qualified 
countermeasure'' in section 247d-6a(a)(2)(A) of title 42, United States 
Code; ``qualified pandemic or epidemic product'' in section 247d-
6d(i)(7) of title 42, United States Code; ``security countermeasure'' 
in section 247d-6b(c)(1)(B) of title 42, United States Code; or 
personal protective equipment described in part 1910 of title 29, Code 
of Federal Regulations. Section 7 of E.O. 13944 contains the 
definitions of other terms that are applicable to this notice (e.g., 
``Active Pharmaceutical Ingredient,'' ``Advanced Manufacturing,'' ``API 
Starting Material,'' ``Critical Inputs,'' ``Finished Device,'' 
``Finished Drug Product,'' ``Healthcare and Public Health Sector,'' and 
``Qualifying Countries''). The definition of ``produced in the United 
States'' used in this notice is consistent with the definition of 
``produced in the United States'' as used in Section 25.1 of the 
Federal Acquisition Regulation (FAR) Buy American Act-Supplies and in 
the FAR Clause 52.225-1.
    Section 1 of E.O. 13944 directs that domestic supply chains must be 
capable of meeting national security requirements for responding to 
threats arising from CBRN threats and public health emergencies, 
including emerging infectious diseases such as COVID-19. The E.O. 
further states that it is critical that the United States reduce its 
dependence on foreign manufacturers for Essential Medicines, Medical 
Countermeasures, and Critical Inputs to ensure sufficient and reliable 
long-term domestic production of these products, minimize potential 
shortages, and mobilize our Nation's PHIB to respond to these threats. 
The E.O. directed that the policy of the United States is to accelerate 
the development of cost-effective and efficient domestic production of 
Essential Medicines and Medical Countermeasures and to have adequate 
redundancy built into the domestic supply chain; ensure long-term 
demand for these items, and critical inputs that are produced in the 
United States; create, maintain, and maximize domestic production 
capabilities for these items that are essential to protect public 
safety and human health and to provide for the national defense; and 
combat the trafficking of these items, and critical inputs over e-
commerce platforms and from third party online sellers involved in the 
government procurement process.
    In E.O. 13994, the President directed the heads of Executive Branch 
agencies, including the Secretary of Commerce, to fulfill the stated 
policy objectives of the order. Under section 6, paragraph (b) 
(Reporting) of the E.O., the Secretary is directed, by February 2, 2021 
(within 180 days of the date of the August 6 order), to submit a report 
to the Director of the Office of Management and Budget (OMB), the 
Assistant to the President for National Security Affairs, the Director 
of the National Economic Council, and the Director of the Office of 
Trade and Manufacturing Policy, describing any change in the status of 
the Public Health Industrial Base and recommending initiatives to 
strengthen the Public Health Industrial Base.
    This notice requests comments from the public to assist Commerce in 
preparing this report on the condition of the PHIB (``change in the 
status'') and recommending policies and actions (``initiatives'') to 
strengthen the PHIB.
    As stated in section 6, paragraph (c) of E.O. 13944, to the maximum 
extent permitted by law, and with the redaction of any information 
protected by law from disclosure, Commerce's report shall be published 
in the Federal Register and on the agency's official website.

Definition of Public Health Industrial Base (PHIB)

    As defined in E.O. 13944, ``PHIB'' means the facilities and 
associated workforces within the United States, including research and 
development facilities, which help produce Essential Medicines, Medical 
Countermeasures, and Critical Inputs for the Healthcare

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and Public Health Sector. The PHIB includes all entities domestically 
manufacturing or producing medical products, including medical devices, 
medical equipment, medical countermeasures, and medications, 
pharmaceutical products, and other products designed to improve patient 
outcomes. This includes the manufacturing of components and materials 
that are essential to create end-item medical products, as well as 
ancillary supplies and disposable consumable products.
    For medical devices and medical equipment, the PHIB includes all 
components that, if replaced by an equivalent alternative component, 
would require an amendment to the final product's 510(k) certification. 
For medications and pharmaceutical products, it includes drug finishing 
(i.e., fill-finish, tableting, or capsule formulation), as well as the 
active pharmaceutical ingredients (API) and the key starting materials 
that are used to make the API. For blood products and medical products 
derived from animals (such as porcine and bovine heparin), the PHIB 
includes all aspects of the extraction, processing and formulation 
supply chain. For vaccines and biologics, it includes research and 
development, as well as the production of all components of the end 
product without which the end product would be ineffective for its 
intended purpose.
    The PHIB also includes the labor force necessary to conduct the 
manufacturing and supply chain operations described above. It does not 
include the ability of distributors to source medical products from 
foreign sources to distribute within the U.S. healthcare system.

Written Comments

    Interested parties are invited to submit written comments, data, 
analyses, or information pertinent to the task of preparing this 
Commerce report pursuant to E.O. 13994 to the Department's Office of 
Technology Evaluation no later than December 23, 2020.
    The Department is particularly interested in comments and 
information directed to the policy objectives listed in E.O. 13944 as 
they affect the U.S. PHIB including, but not limited to, the following:
    (i) What is the condition of the current U.S. PHIB? Commenters in 
responding to this question are encouraged to reference their position 
in the PHIB (e.g., research and development facility, manufacturer, 
distributor, or consumer).
    (ii) What policies and actions should the U.S. Government take to 
strengthen the PHIB in the United States?
    (iii) What aspects or parts of the PHIB are most vulnerable during 
outbreaks of emerging infectious diseases?
    a. How likely might such an event be, how much of an impact might 
it have in manufacturing operations, and what mitigation measures might 
be most effective in offsetting these impacts?
    b. In responding to this question, commenters are encouraged to 
include any lessons learned from responding to COVID-19 or other 
historic pandemics, and the ramping up of U.S. capacity in various 
areas that did or did not occur to meet these challenges.
    (iv) What aspects or parts of the PHIB are most vulnerable to 
chemical, biological, radiological, and nuclear (CBRN) events?
    a. How likely might such an event be; how much might it impact 
manufacturing operations; and what mitigation measures might be most 
effective in offsetting these impacts.
    b. In responding to this question, commenters are encouraged to 
include any lessons learned from responding to previous CBRN threats 
and the ramping up of U.S. capacity in various areas that did or did 
not occur to meet these challenges.
    (v) For the Essential Medicines, Medical Countermeasures, and 
Critical Inputs with which your organization is involved under the 
PHIB, for what percentage of these items are you dependent on foreign 
suppliers? In responding to this question, please address:
    a. Whether or not there are foreign dependencies in any part of 
your supply chain for critical inputs (e.g., active pharmaceutical 
ingredients (APIs)) or for finished products?
    b. whether it would be possible to source these critical inputs 
and/or finished products from the United States, as well as how long 
you anticipate it would take to source these items from U.S. suppliers 
if your foreign supplier(s) was no longer available?
    (vi) Are there any costs, regulatory or other factors that make it 
difficult or impossible to produce or source Essential Medicines, 
Medical Countermeasures, and/or Critical Inputs in the United States? 
In addressing this question, please also address:
    a. Any concerns that you may have regarding sourcing or producing 
these items in the United States, in contrast to sourcing or producing 
them outside the United States.
    b. does your organization have mechanisms to determine whether 
Essential Medicines, Medical Countermeasures, and Critical Inputs are 
produced in the United States? What, if any, are the limitations to 
those mechanisms? Commenters are encouraged to be as specific as 
possible in their comments regarding the particular issues that may 
exist. For example, an example of a regulatory provision accompanied by 
a specific example of how the provision hinders domestic production is 
more helpful to Commerce than a statement that the regulatory 
environment in the United States discourages domestic production.
    c. how significant of a concern is ``pricing'' in being able to 
achieve maximum domestic production?
    (vii) What is the U.S. Government doing or could do to foster 
private and public sector investment and innovation in the U.S. PHIB, 
including, for example, investments in upgrades to equipment, or the 
adoption of emerging technologies, and/or automation that would 
increase productivity and competitiveness. Should the U.S. Government 
do more to foster U.S. PHIB investment, particularly in automation and 
emerging technologies? If so, what policy actions should it undertake?
    (viii) With respect to the U.S. PHIB, what are the challenges to 
investing in automation and other productivity-enhancing technologies 
in the United States as compared to moving operations abroad to lower-
cost labor countries? Would increased investment in, or higher use of, 
more efficient and cost-effective automation and productivity enhancing 
technologies affect your decisions to source all or some of your 
Essential Medicines, Medical Countermeasures, and Critical Inputs in 
the United States?
    (ix) Briefly assess whether the amount of federal funds spent on 
U.S. PHIB research and development (R&D) is adequate; if not, specify 
why spending should be increased or decreased. Which types of R&D 
projects, if adequately funded, would have the most impact on the 
competitiveness of the U.S. PHIB supply chain?
    (x) Briefly assess U.S. Federal procurement policy with respect to 
the U.S. PHIB and how it encourages or discourages investment in the 
PHIB. How should U.S. Federal procurement policy to make the PHIB more 
productive and more internationally competitive, as well as to 
encourage investment in automation and other emerging technologies?
    (xi) What are the workforce challenges to strengthening the U.S. 
PHIB, and what are best practices or suggestions for how U.S. industry 
can overcome these challenges? What have you done to address these 
challenges? How might

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emerging technologies in the PHIB create new workforce training needs? 
Which skillsets will the job market most demand in the future?
    (xii) How can the U.S. Government or the private sector help to 
accelerate the development of cost-effective and efficient domestic 
production of Essential Medicines and Medical Countermeasures and to 
have adequate redundancy built into the domestic supply chain for 
Essential Medicines, Medical Countermeasures, and Critical Inputs?
    (xiii) What are the three most important things that can be done by 
the U.S. Government or the private sector to ensure long-term demand 
for the Essential Medicines, Medical Countermeasures, and Critical 
Inputs that are produced in the United States?
    (xiv) What are the three most important things that can be done by 
the U.S. Government or the private sector to create, maintain, and 
maximize domestic production capabilities for the Critical Inputs, 
Finished Drug Products, and Finished Devices that are essential to 
protect public safety and human health and to provide for the national 
defense?
    (xv) How significant of a problem is trafficking of counterfeit 
Essential Medicines, Medical Countermeasures, and Critical Inputs over 
e-commerce platforms and from third party online vendors also involved 
in the U.S. Government procurement process? In responding to this 
question, commenters are encouraged to provide specific examples of how 
these practices may have undermined production in the United States, 
endangered U.S. citizens, or undermined the reliability of the U.S. 
supply chain.
    (xvi) How great of a threat is cybercrime or malicious cyber 
activity to your organization and other organizations that you depend 
on as part of your supply chain for Essential Medicines, Medical 
Countermeasures, and Critical Inputs? In addressing this question, 
commenters are encouraged to provide specific examples of how cyber 
threats (e.g., ransomware, distributed denial of service attacks (DDoS) 
and malware) have undermined production in the United States and the 
reliability of the U.S. supply chain for Essential Medicines, Medical 
Countermeasures, and Critical Inputs. How can the U.S. Government or 
the private sector strengthen the PHIB sector's ability to prevent, 
detect, and recover from malicious cyber activity? To what extent, if 
any, does dependence on foreign suppliers increase your organization's 
exposure to cybercrime or create additional burdens because of the 
complexities involved in dealing with different countries' laws on 
cyber issues?
    (xvii) From your organization's perspective, how dependent is the 
U.S. supply chain on foreign suppliers for items for use in Personal 
Protective Equipment (PPE)? In addressing this question, please address 
whether there are specific factors that undermine U.S. competitiveness 
in this area and provide any recommendations that your organization may 
have for reducing foreign dependency and increasing U.S. 
competitiveness. In addressing this question, specify whether your 
organization produces, sells or uses PPE.

Requirements for Written Comments

    The http://www.regulations.gov website allows users to provide 
comments by filling in a ``Type Comment'' field, or by attaching a 
document using an ``Upload File'' field. The Department prefers that 
comments be provided in an attached document. The Department prefers 
submissions in Microsoft Word (.doc files) or Adobe Acrobat (.pdf 
files). If the submission is in an application format other than 
Microsoft Word or Adobe Acrobat, please indicate the name of the 
application in the ``Type Comment'' field. Please do not attach 
separate cover letters to electronic submissions; rather, include any 
information that might appear in a cover letter within the comments. 
Similarly, to the extent possible, please include any exhibits, 
annexes, or other attachments in the same file, so that the submission 
consists of one file instead of multiple files. Comments will be placed 
in the docket and open to public inspection, unless a statement is 
filed justifying nondisclosure and referring to the specific legal 
authority claimed, and a non-confidential version of the submission is 
provided. Anyone submitting business confidential information should 
clearly identify the business confidential portion at the time of 
submission, file a statement justifying nondisclosure and referring to 
the specific legal authority claimed, and provide a non-confidential 
version of the submission. Comments may be viewed on http://www.regulations.gov by entering docket number BIS-2020-0034 in the 
search field on the home page.
    All filers should name their files using the name of the person or 
entity submitting the comments. Communications from agencies of the 
United States Government will not be made available for public 
inspection.
    Anyone submitting business confidential information should clearly 
identify the business confidential portion at the time of submission, 
file a statement justifying nondisclosure and referring to the specific 
legal authority claimed, and provide a non-confidential version of the 
submission. Guidance on submitting business confidential information is 
as follows: Anyone submitting business confidential information should 
clearly identify the business confidential portion at the time of 
submission, include a statement justifying nondisclosure and referring 
to the specific legal authority claimed with the submission, and 
provide a non-confidential version of the submission which will be 
placed in the public file on http://www.regulations.gov. For comments 
submitted electronically containing business confidential information, 
the file name of the business confidential version should begin with 
the characters ``BC''. Any page containing business confidential 
information must be clearly marked ``BUSINESS CONFIDENTIAL'' on the top 
of that page. The non-confidential version must be clearly marked 
``PUBLIC''. The file name of the non-confidential version should begin 
with the character ``P''. The ``BC'' and ``P'' should be followed by 
the name of the person or entity submitting the comments or rebuttal 
comments. If a public hearing is held in support of this investigation, 
a separate Federal Register notice will be published providing the date 
and information about the hearing.
    The Bureau of Industry and Security does not maintain a separate 
public inspection facility. Requesters should first view the Bureau's 
web page, which can be found at https://efoia.bis.doc.gov/ (see 
``Electronic FOIA'' heading). If requesters cannot access the website, 
they may call 202-482-0795 for assistance. The records related to this 
assessment are made accessible in accordance with the regulations 
published in part 4 of title 15 of the Code of Federal Regulations (15 
CFR 4.1 through 4.11).

Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2020-26609 Filed 11-30-20; 4:15 pm]
BILLING CODE 3510-33-P