81_FR_68487 81 FR 68295 - Medical Devices; Exemption From Premarket Notification; Method, Metallic Reduction, Glucose (Urinary, Nonquantitative) Test System in a Reagent Tablet Format

81 FR 68295 - Medical Devices; Exemption From Premarket Notification; Method, Metallic Reduction, Glucose (Urinary, Nonquantitative) Test System in a Reagent Tablet Format

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 81, Issue 192 (October 4, 2016)

Page Range68295-68297
FR Document2016-23901

The Food and Drug Administration (FDA) is publishing an order denying a petition requesting exemption from the premarket notification requirements for method, metallic reduction, glucose (urinary, nonquantitative) devices that are in a reagent tablet format and are classified as class II devices as urinary glucose (nonquantitative) test system (hereinafter referred to as ''copper reduction tablet test''). Urinary glucose (nonquantitative) measurements are used in the diagnosis and treatment of carbohydrate metabolism disorders including diabetes mellitus, hypoglycemia, and hyperglycemia. FDA is publishing this order in accordance with procedures established by the Food and Drug Administration Modernization Act of 1997 (FDAMA).

Federal Register, Volume 81 Issue 192 (Tuesday, October 4, 2016)
[Federal Register Volume 81, Number 192 (Tuesday, October 4, 2016)]
[Rules and Regulations]
[Pages 68295-68297]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-23901]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 862

[Docket No. FDA-2016-P-0159]


Medical Devices; Exemption From Premarket Notification; Method, 
Metallic Reduction, Glucose (Urinary, Nonquantitative) Test System in a 
Reagent Tablet Format

AGENCY: Food and Drug Administration, HHS.

ACTION: Final order.

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

SUMMARY: The Food and Drug Administration (FDA) is publishing an order 
denying a petition requesting exemption from the premarket notification 
requirements for method, metallic reduction, glucose (urinary, 
nonquantitative) devices that are in a reagent tablet format and are 
classified as class II devices as urinary glucose (nonquantitative) 
test system (hereinafter referred to as ''copper reduction tablet 
test''). Urinary glucose (nonquantitative) measurements are used in the 
diagnosis and treatment of carbohydrate metabolism disorders including 
diabetes mellitus, hypoglycemia, and hyperglycemia. FDA is publishing 
this order in accordance with procedures established by the Food and 
Drug Administration Modernization Act of 1997 (FDAMA).

DATES: This order is effective October 4, 2016.

FOR FURTHER INFORMATION CONTACT: Sheila Connors, Center for Devices and 
Radiological Health (CDRH), Food and Drug Administration, 10903 New 
Hampshire Ave., Bldg. 66, Rm. 4620, Silver Spring, MD 20993-0002, 301-
796-6181, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Statutory Background

    Under section 513 of the Federal Food, Drug, and Cosmetic Act (the 
FD&C Act) (21 U.S.C. 360c), FDA must classify devices into one of three 
regulatory classes: Class I, class II, or class III. FDA classification 
of a device is determined by the amount of regulation necessary to 
provide a reasonable assurance of the safety and effectiveness of the 
device. Under the Medical Device Amendments of 1976 (1976 amendments) 
(Pub. L. 94-295), as amended by the Safe Medical Devices Act of 1990 
(Pub. L. 101-629), devices are to be classified into class I (general 
controls) if there is information showing that the general controls of 
the FD&C Act are sufficient to assure safety and effectiveness; into 
class II (special controls) if general controls, by themselves, are 
insufficient to provide reasonable assurance of safety and 
effectiveness, but there is sufficient information to establish special 
controls to provide such assurance; and into class III (premarket 
approval) if there is insufficient information to support classifying a 
device into class I or class II and the device is a life-sustaining or 
life-supporting device, or is for a use which is of substantial 
importance in preventing impairment of human health, or presents a 
potential unreasonable risk of illness or injury.
    Section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and the 
implementing regulations (21 CFR part 807) require persons who intend 
to market a device intended for human use to submit a premarket 
notification (510(k)) to FDA containing information that allows FDA to 
determine whether the device is ``substantially equivalent'' within the 
meaning of section 513(i) of the FD&C Act to a legally marketed device 
that does not require premarket approval.
    On November 21, 1997, the President signed into law FDAMA (Pub. L. 
105-115). Section 206 of FDAMA, in part, added section 510(m) to the 
FD&C Act. Section 510(m)(1) of the FD&C Act requires FDA, within 60 
days after enactment of FDAMA, to publish in the Federal Register a 
list of each type of class II device that does not require a report 
under section 510(k) of the FD&C Act to provide reasonable assurance of 
safety and effectiveness. Section 510(m) of the FD&C Act further 
provides that a 510(k) will no longer be required for these devices 
upon the date of publication of the list in the Federal Register. FDA 
published that list in the Federal Register of January 21, 1998 (63 FR 
3142).
    Section 510(m)(2) of the FD&C Act provides that 1 day after the 
date of publication of the list under section 510(m)(1), FDA may exempt 
a class II device on its own initiative or upon petition of an 
interested person, if FDA determines that a 510(k) is not necessary to 
provide reasonable assurance of the safety and effectiveness of the 
device.

[[Page 68296]]

This section requires FDA to publish in the Federal Register a notice 
of intent to exempt a device, or of the petition, and to provide a 30-
day comment period. Within 120 days of publication of this document, 
FDA must publish in the Federal Register its final determination 
regarding the exemption of the device that was the subject of the 
notice. If FDA fails to respond to a petition under this section within 
180 days of receiving it, the petition shall be deemed granted.
    FDA classified the urinary glucose (nonquantitative) test system 
into class II effective July 30, 1987 (52 FR 16102 at 16122, May 1, 
1987). The classification for urinary glucose (nonquantitative) test 
system is at Sec.  862.1340 (21 CFR 862.1340). The urinary glucose 
(nonquantitative) test system is identified as a device that is 
intended to measure glucosuria (glucose in urine). Urinary glucose 
(nonquantitative) measurements are used in the diagnosis and treatment 
of carbohydrate metabolism disorders including diabetes mellitus, 
hypoglycemia, and hyperglycemia. Devices under this classification 
regulation require premarket notification under section 510(k) of the 
FD&C Act.

II. Criteria for Exemption

    There are a number of factors FDA may consider to determine whether 
a 510(k) is necessary to provide reasonable assurance of the safety and 
effectiveness of a class II device. These factors are discussed in the 
guidance the Agency issued on February 19, 1998, entitled ``Procedures 
for Class II Device Exemptions from Premarket Notification, Guidance 
for Industry and CDRH Staff'' (Ref. 1). Accordingly, FDA generally 
considers the following factors to determine whether premarket 
notification is necessary: (1) The device does not have a significant 
history of false or misleading claims or risks associated with inherent 
characteristics of the device; (2) characteristics of the device 
necessary for its safe and effective performance are well established; 
(3) changes in the device that could affect safety and effectiveness 
will either (a) be readily detectable by users by visual examination or 
other means such as routine testing, before causing harm, or (b) not 
materially increase the risk of injury, incorrect diagnosis, or 
ineffective treatment; and (4) any changes to the device would not be 
likely to result in a change in the device's classification. FDA may 
also consider that, even when exempting devices, these devices would 
still be subject to the limitations on exemptions.

III. Petition

    On January 7, 2016, FDA received a petition requesting an exemption 
from premarket notification requirements for copper reduction tablet 
tests that are classified as class II devices under Sec.  862.1340, 
urinary glucose (nonquantitative) test system, from Evelyn Mirza, 
Biorex Labs, LLC. (See Docket No. FDA-2016-P-0159).
    On March 24, 2016 (81 FR 15728), FDA published a notice in the 
Federal Register announcing that this petition had been received and 
provided an opportunity for interested persons to submit comments on 
the petition by April 25, 2016, in accordance with section 510(m)(2) of 
the FD&C Act. FDA received no comments regarding this petition.
    FDA has completed review of the previously referenced petition and 
assessed the need for 510(k) clearance for copper reduction tablet test 
against the criteria laid out in section II. For the reasons described 
in section IV, FDA has determined that premarket notification is 
necessary to provide a reasonable assurance of the safety and 
effectiveness of the copper reduction tablet tests classified under 
Sec.  862.1340 and assigned the classification product code JIM. 
Accordingly, FDA responded to the petition by letter dated July 1, 
2016, denying the petition within the 180-day timeframe under section 
510(m)(2) of the FD&C Act. (See Docket No. FDA-2016-P-0159.)

IV. Order

    After reviewing the petition, FDA has determined that the petition 
failed to provide information to demonstrate that premarket 
notification is not necessary to provide reasonable assurance of the 
safety and effectiveness of the device. Accordingly, FDA is denying the 
previously referenced petition for exemption from the premarket 
notification requirements.
    With regard to the first factor (section II, Criteria for 
Exemption), although there have been no medical device reports reported 
to the Agency in recent years, there have been numerous reports to the 
Agency \1\ and in medical literature of risks associated with the 
inherent characteristics of this device, including possible device-
associated deaths, serious injuries, and malfunctions such as burns, 
explosions of the product bottle due to heat, and consumption of the 
device. For instance, there have been reports in the medical literature 
of patients consuming the tablets because of their similarity to pills, 
which has led to poisoning and one report of a death. Therefore, FDA 
does not agree with the petitioner that the use of the device is well 
established without any reports of patient or user injury, or that the 
device does not have a significant history of risks associated with 
inherent characteristics of the device.
---------------------------------------------------------------------------

    \1\ For more information, see Medical Device Reporting (MDR) 
database at http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfMAUDE/search.CFM.
---------------------------------------------------------------------------

    Additionally, failure to observe the reaction at all times after 
the tablet has been added to the sample is another risk associated with 
the inherent characteristics of the device. This can lead to a false-
negative result and result in improper patient management, which can 
lead to serious injury or possibly death. The petition failed to 
demonstrate how the device's inherent risks can be mitigated or 
controlled without premarket notification to provide a reasonable 
assurance of the safety and effectiveness of the device.
    With regard to the second factor, the petition stated that a copper 
reduction tablet test can be used to evaluate pediatric patients for 
possible hereditary metabolic disorders through detection of reducing 
substances. For example, although all States require mandatory newborn 
screening for genetic metabolic defects, clinical laboratories may 
still use this device as a screening test on pediatric urine samples if 
there are any suspicions of metabolic disease prior to receiving 
newborn screening results or if the newborn screening results do not 
match the clinical state of the newborn. Although further diagnostic 
testing may be performed to confirm the result(s), physicians may 
immediately treat the newborn relying solely on the result of this test 
while awaiting the results for any followup diagnostic tests. False 
negative results also present a safety and effectiveness concern 
because followup diagnostic testing may not be performed, leading to 
the failure to start needed treatment for the newborn. The petition 
also stated that this device is used in the diagnosis, monitoring, and 
treatment of metabolic disorders such as diabetes mellitus. However, 
the petition failed to demonstrate that a premarket submission is not 
necessary to provide a reasonable assurance of the safety and 
effectiveness of the device for such uses, and FDA does not agree that 
the characteristics of the device necessary for its safe and effective 
use are well established.
    With regard to the third factor, FDA also does not agree that 
changes in the device that could affect safety and effectiveness will 
either be readily detectable or not materially increase

[[Page 68297]]

risks. For example, available quality control materials may contain 
glucose but do not contain other reducing sugars (e.g., galactose, 
lactose). Therefore, such materials might not readily detect an issue 
with the device's safety or effectiveness in detecting other reducing 
sugars, before causing harm. The petition provided insufficient 
information to support the position that changes in the device that 
could affect safety and effectiveness will either be readily detectable 
or not materially increase risks. Moreover, changes in the device that 
could affect safety and effectiveness might materially increase the 
risk of injury, incorrect diagnosis, or ineffective treatment given the 
device type's intended uses. The petition also did not provide 
information to the contrary. The petition did not provide any 
information regarding the fourth factor.
    In addition to these four factors, FDA considers the ``limitations 
on exemption.'' Manufacturers of any commercially distributed device 
for which FDA has granted an exemption from the requirement of 
premarket notification must still submit a premarket notification to 
FDA prior to marketing the device when any of the limitations of 
exemption are exceeded. The general limitations of exemption from 
premarket notification contained in Sec.  862.9 (21 CFR 862.9) are 
broadly applicable to in vitro diagnostic (IVD) devices classified 
under part 862 (21 CFR part 862). Under Sec.  862.9, the exemption from 
the premarket notification requirements applies, in the case of IVD 
devices, only to those devices under part 862 for which misdiagnosis, 
as a result of using the device, would not be associated with high 
morbidity or mortality. FDA has previously assessed that this 
limitation is exceeded, and a premarket notification is necessary to 
provide a reasonable assurance of the safety and effectiveness of an 
IVD device, when such device is intended for use in screening or 
diagnosis of familial or acquired genetic disorders, including inborn 
errors of metabolism (Sec.  862.9(c)(2)) or intended for use in 
diabetes management (Sec.  862.9(c)(5)). The copper reduction tablet 
test described in the petition is intended for such uses and would 
likely exceed the limitations just described.
    Accordingly, for all of the foregoing reasons, the petition failed 
to demonstrate that a premarket submission is not necessary to provide 
a reasonable assurance of the safety and effectiveness of the device 
intended for such uses. Therefore, FDA is issuing this order denying 
the petition requesting exemption for a method, metallic reduction, 
glucose (urinary, nonquantitative) test system in a reagent tablet 
format that is intended to measure glucosuria (glucose in urine) from 
the premarket notification requirements. Manufacturers of this device 
type must continue to submit and receive FDA clearance of a 510(k) 
before marketing their device, as well as comply with all other 
applicable requirements under the FD&C Act.

V. Reference

    The following reference is on display in the Division of Dockets 
Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, 
Rm. 1061, Rockville, MD 20852, and is available for viewing by 
interested persons between 9 a.m. and 4 p.m., Monday through Friday; it 
is also available electronically at http://www.regulations.gov. FDA has 
verified the Web site address, as of the date this document publishes 
in the Federal Register, but Web sites are subject to change over time.

1. ``Procedures for Class II Device Exemptions from Premarket 
Notification, Guidance for Industry and CDRH Staff,'' February 1998, 
available at http://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/UCM080199.pdf.

    Dated: September 28, 2016.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2016-23901 Filed 10-3-16; 8:45 am]
 BILLING CODE 4164-01-P



                                                                    Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations                                        68295

                                                  exemption from the premarket                                  February 1998, available at http://             class III. FDA classification of a device
                                                  notification requirements applies, in the                     www.fda.gov/downloads/                          is determined by the amount of
                                                  case of IVD devices, only to those                            MedicalDevices/                                 regulation necessary to provide a
                                                  devices under part 862 for which                              DeviceRegulationandGuidance/                    reasonable assurance of the safety and
                                                                                                                GuidanceDocuments/UCM080199.pdf.
                                                  misdiagnosis, as a result of using the                                                                        effectiveness of the device. Under the
                                                  device, would not be associated with                      Dated: September 28, 2016.                          Medical Device Amendments of 1976
                                                  high morbidity or mortality. FDA has                    Leslie Kux,                                           (1976 amendments) (Pub. L. 94–295), as
                                                  previously assessed that this limitation                Associate Commissioner for Policy.                    amended by the Safe Medical Devices
                                                  is exceeded, and a premarket                            [FR Doc. 2016–23899 Filed 10–3–16; 8:45 am]           Act of 1990 (Pub. L. 101–629), devices
                                                  notification is necessary to provide a                  BILLING CODE 4164–01–P                                are to be classified into class I (general
                                                  reasonable assurance of the safety and                                                                        controls) if there is information showing
                                                  effectiveness of an IVD device, when                                                                          that the general controls of the FD&C
                                                  such device is intended for use in                      DEPARTMENT OF HEALTH AND                              Act are sufficient to assure safety and
                                                  screening or diagnosis of familial or                   HUMAN SERVICES                                        effectiveness; into class II (special
                                                  acquired genetic disorders, including                                                                         controls) if general controls, by
                                                  inborn errors of metabolism                             Food and Drug Administration                          themselves, are insufficient to provide
                                                  (§ 862.9(c)(2)) or intended for use in                                                                        reasonable assurance of safety and
                                                  diabetes management (§ 862.9(c)(5)).                    21 CFR Part 862                                       effectiveness, but there is sufficient
                                                  The petition argued that the copper                                                                           information to establish special controls
                                                                                                          [Docket No. FDA–2016–P–0159]
                                                  reduction tablet test is not intended for                                                                     to provide such assurance; and into
                                                  use in screening or diagnosis of familial               Medical Devices; Exemption From                       class III (premarket approval) if there is
                                                  and acquired genetic disorders,                         Premarket Notification; Method,                       insufficient information to support
                                                  including inborn errors of metabolism,                  Metallic Reduction, Glucose (Urinary,                 classifying a device into class I or class
                                                  or for use in diabetes management.                      Nonquantitative) Test System in a                     II and the device is a life-sustaining or
                                                  However, as explained previously, FDA                   Reagent Tablet Format                                 life-supporting device, or is for a use
                                                  disagrees and believes that the copper                                                                        which is of substantial importance in
                                                  reduction tablet test described in the                  AGENCY:    Food and Drug Administration,              preventing impairment of human
                                                  petition is intended for such uses and                  HHS.                                                  health, or presents a potential
                                                  would likely exceed the limitations                     ACTION:   Final order.                                unreasonable risk of illness or injury.
                                                  previously mentioned.                                                                                            Section 510(k) of the FD&C Act (21
                                                     Accordingly, for all of the foregoing                SUMMARY:    The Food and Drug                         U.S.C. 360(k)) and the implementing
                                                  reasons, the petition failed to                         Administration (FDA) is publishing an                 regulations (21 CFR part 807) require
                                                  demonstrate that a premarket                            order denying a petition requesting                   persons who intend to market a device
                                                  submission is not necessary to provide                  exemption from the premarket                          intended for human use to submit a
                                                  a reasonable assurance of the safety and                notification requirements for method,                 premarket notification (510(k)) to FDA
                                                  effectiveness of the device intended for                metallic reduction, glucose (urinary,                 containing information that allows FDA
                                                  such uses. Therefore, FDA is issuing                    nonquantitative) devices that are in a                to determine whether the device is
                                                  this order denying the petition                         reagent tablet format and are classified              ‘‘substantially equivalent’’ within the
                                                  requesting exemption for a method,                      as class II devices as urinary glucose                meaning of section 513(i) of the FD&C
                                                  metallic reduction, glucose (urinary,                   (nonquantitative) test system                         Act to a legally marketed device that
                                                  nonquantitative) test system in a reagent               (hereinafter referred to as ’’copper                  does not require premarket approval.
                                                  tablet format that is intended to measure               reduction tablet test’’). Urinary glucose                On November 21, 1997, the President
                                                  glucosuria (glucose in urine) from the                  (nonquantitative) measurements are                    signed into law FDAMA (Pub. L. 105–
                                                  premarket notification requirements.                    used in the diagnosis and treatment of                115). Section 206 of FDAMA, in part,
                                                  Manufacturers of this device type must                  carbohydrate metabolism disorders                     added section 510(m) to the FD&C Act.
                                                  continue to submit and receive FDA                      including diabetes mellitus,                          Section 510(m)(1) of the FD&C Act
                                                  clearance of a 510(k) before marketing                  hypoglycemia, and hyperglycemia. FDA                  requires FDA, within 60 days after
                                                  their device, as well as comply with all                is publishing this order in accordance                enactment of FDAMA, to publish in the
                                                  other applicable requirements under the                 with procedures established by the Food               Federal Register a list of each type of
                                                  FD&C Act.                                               and Drug Administration Modernization                 class II device that does not require a
                                                                                                          Act of 1997 (FDAMA).                                  report under section 510(k) of the FD&C
                                                  V. Reference                                                                                                  Act to provide reasonable assurance of
                                                    The following reference is on display                 DATES: This order is effective October 4,
                                                                                                                                                                safety and effectiveness. Section 510(m)
                                                  in the Division of Dockets Management                   2016.                                                 of the FD&C Act further provides that a
                                                  (HFA–305), Food and Drug                                FOR FURTHER INFORMATION CONTACT:                      510(k) will no longer be required for
                                                  Administration, 5630 Fishers Lane, Rm.                  Sheila Connors, Center for Devices and                these devices upon the date of
                                                  1061, Rockville, MD 20852, and is                       Radiological Health (CDRH), Food and                  publication of the list in the Federal
                                                  available for viewing by interested                     Drug Administration, 10903 New                        Register. FDA published that list in the
                                                  persons between 9 a.m. and 4 p.m.,                      Hampshire Ave., Bldg. 66, Rm. 4620,                   Federal Register of January 21, 1998 (63
                                                  Monday through Friday; it is also                       Silver Spring, MD 20993–0002, 301–                    FR 3142).
                                                  available electronically at http://                     796–6181, Sheila.Connors@fda.hhs.gov.                    Section 510(m)(2) of the FD&C Act
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  www.regulations.gov. FDA has verified                   SUPPLEMENTARY INFORMATION:                            provides that 1 day after the date of
                                                  the Web site address, as of the date this                                                                     publication of the list under section
                                                  document publishes in the Federal                       I. Statutory Background                               510(m)(1), FDA may exempt a class II
                                                  Register, but Web sites are subject to                    Under section 513 of the Federal                    device on its own initiative or upon
                                                  change over time.                                       Food, Drug, and Cosmetic Act (the                     petition of an interested person, if FDA
                                                  1. ‘‘Procedures for Class II Device                     FD&C Act) (21 U.S.C. 360c), FDA must                  determines that a 510(k) is not necessary
                                                        Exemptions from Premarket Notification,           classify devices into one of three                    to provide reasonable assurance of the
                                                        Guidance for Industry and CDRH Staff,’’           regulatory classes: Class I, class II, or             safety and effectiveness of the device.


                                             VerDate Sep<11>2014   17:56 Oct 03, 2016   Jkt 241001   PO 00000   Frm 00003   Fmt 4700   Sfmt 4700   E:\FR\FM\04OCR1.SGM   04OCR1


                                                  68296             Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations

                                                  This section requires FDA to publish in                 subject to the limitations on                         the device. For instance, there have
                                                  the Federal Register a notice of intent                 exemptions.                                           been reports in the medical literature of
                                                  to exempt a device, or of the petition,                                                                       patients consuming the tablets because
                                                                                                          III. Petition
                                                  and to provide a 30-day comment                                                                               of their similarity to pills, which has led
                                                  period. Within 120 days of publication                     On January 7, 2016, FDA received a                 to poisoning and one report of a death.
                                                  of this document, FDA must publish in                   petition requesting an exemption from                 Therefore, FDA does not agree with the
                                                  the Federal Register its final                          premarket notification requirements for               petitioner that the use of the device is
                                                  determination regarding the exemption                   copper reduction tablet tests that are                well established without any reports of
                                                  of the device that was the subject of the               classified as class II devices under                  patient or user injury, or that the device
                                                  notice. If FDA fails to respond to a                    § 862.1340, urinary glucose                           does not have a significant history of
                                                  petition under this section within 180                  (nonquantitative) test system, from                   risks associated with inherent
                                                  days of receiving it, the petition shall be             Evelyn Mirza, Biorex Labs, LLC. (See                  characteristics of the device.
                                                  deemed granted.                                         Docket No. FDA–2016–P–0159).                             Additionally, failure to observe the
                                                                                                             On March 24, 2016 (81 FR 15728),                   reaction at all times after the tablet has
                                                     FDA classified the urinary glucose
                                                                                                          FDA published a notice in the Federal                 been added to the sample is another risk
                                                  (nonquantitative) test system into class
                                                                                                          Register announcing that this petition                associated with the inherent
                                                  II effective July 30, 1987 (52 FR 16102                 had been received and provided an
                                                  at 16122, May 1, 1987). The                                                                                   characteristics of the device. This can
                                                                                                          opportunity for interested persons to                 lead to a false-negative result and result
                                                  classification for urinary glucose                      submit comments on the petition by
                                                  (nonquantitative) test system is at                                                                           in improper patient management, which
                                                                                                          April 25, 2016, in accordance with                    can lead to serious injury or possibly
                                                  § 862.1340 (21 CFR 862.1340). The                       section 510(m)(2) of the FD&C Act. FDA
                                                  urinary glucose (nonquantitative) test                                                                        death. The petition failed to
                                                                                                          received no comments regarding this                   demonstrate how the device’s inherent
                                                  system is identified as a device that is                petition.
                                                  intended to measure glucosuria (glucose                                                                       risks can be mitigated or controlled
                                                                                                             FDA has completed review of the                    without premarket notification to
                                                  in urine). Urinary glucose                              previously referenced petition and                    provide a reasonable assurance of the
                                                  (nonquantitative) measurements are                      assessed the need for 510(k) clearance                safety and effectiveness of the device.
                                                  used in the diagnosis and treatment of                  for copper reduction tablet test against                 With regard to the second factor, the
                                                  carbohydrate metabolism disorders                       the criteria laid out in section II. For the          petition stated that a copper reduction
                                                  including diabetes mellitus,                            reasons described in section IV, FDA                  tablet test can be used to evaluate
                                                  hypoglycemia, and hyperglycemia.                        has determined that premarket                         pediatric patients for possible hereditary
                                                  Devices under this classification                       notification is necessary to provide a                metabolic disorders through detection of
                                                  regulation require premarket                            reasonable assurance of the safety and                reducing substances. For example,
                                                  notification under section 510(k) of the                effectiveness of the copper reduction                 although all States require mandatory
                                                  FD&C Act.                                               tablet tests classified under § 862.1340              newborn screening for genetic metabolic
                                                  II. Criteria for Exemption                              and assigned the classification product               defects, clinical laboratories may still
                                                                                                          code JIM. Accordingly, FDA responded                  use this device as a screening test on
                                                     There are a number of factors FDA                    to the petition by letter dated July 1,               pediatric urine samples if there are any
                                                  may consider to determine whether a                     2016, denying the petition within the                 suspicions of metabolic disease prior to
                                                  510(k) is necessary to provide                          180-day timeframe under section                       receiving newborn screening results or
                                                  reasonable assurance of the safety and                  510(m)(2) of the FD&C Act. (See Docket                if the newborn screening results do not
                                                  effectiveness of a class II device. These               No. FDA–2016–P–0159.)                                 match the clinical state of the newborn.
                                                  factors are discussed in the guidance the                                                                     Although further diagnostic testing may
                                                  Agency issued on February 19, 1998,                     IV. Order
                                                                                                                                                                be performed to confirm the result(s),
                                                  entitled ‘‘Procedures for Class II Device                  After reviewing the petition, FDA has              physicians may immediately treat the
                                                  Exemptions from Premarket                               determined that the petition failed to                newborn relying solely on the result of
                                                  Notification, Guidance for Industry and                 provide information to demonstrate that               this test while awaiting the results for
                                                  CDRH Staff’’ (Ref. 1). Accordingly, FDA                 premarket notification is not necessary               any followup diagnostic tests. False
                                                  generally considers the following factors               to provide reasonable assurance of the                negative results also present a safety and
                                                  to determine whether premarket                          safety and effectiveness of the device.               effectiveness concern because followup
                                                  notification is necessary: (1) The device               Accordingly, FDA is denying the                       diagnostic testing may not be
                                                  does not have a significant history of                  previously referenced petition for                    performed, leading to the failure to start
                                                  false or misleading claims or risks                     exemption from the premarket                          needed treatment for the newborn. The
                                                  associated with inherent characteristics                notification requirements.                            petition also stated that this device is
                                                  of the device; (2) characteristics of the                  With regard to the first factor (section           used in the diagnosis, monitoring, and
                                                  device necessary for its safe and                       II, Criteria for Exemption), although                 treatment of metabolic disorders such as
                                                  effective performance are well                          there have been no medical device                     diabetes mellitus. However, the petition
                                                  established; (3) changes in the device                  reports reported to the Agency in recent              failed to demonstrate that a premarket
                                                  that could affect safety and effectiveness              years, there have been numerous reports               submission is not necessary to provide
                                                  will either (a) be readily detectable by                to the Agency 1 and in medical literature             a reasonable assurance of the safety and
                                                  users by visual examination or other                    of risks associated with the inherent                 effectiveness of the device for such uses,
                                                  means such as routine testing, before                   characteristics of this device, including             and FDA does not agree that the
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  causing harm, or (b) not materially                     possible device-associated deaths,                    characteristics of the device necessary
                                                  increase the risk of injury, incorrect                  serious injuries, and malfunctions such               for its safe and effective use are well
                                                  diagnosis, or ineffective treatment; and                as burns, explosions of the product                   established.
                                                  (4) any changes to the device would not                 bottle due to heat, and consumption of                   With regard to the third factor, FDA
                                                  be likely to result in a change in the                    1 For more information, see Medical Device
                                                                                                                                                                also does not agree that changes in the
                                                  device’s classification. FDA may also                   Reporting (MDR) database at http://
                                                                                                                                                                device that could affect safety and
                                                  consider that, even when exempting                      www.accessdata.fda.gov/scripts/cdrh/cfdocs/           effectiveness will either be readily
                                                  devices, these devices would still be                   cfMAUDE/search.CFM.                                   detectable or not materially increase


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                                                                    Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations                                         68297

                                                  risks. For example, available quality                   requesting exemption for a method,                    DATES:   Effective Date: November 3,
                                                  control materials may contain glucose                   metallic reduction, glucose (urinary,                 2016.
                                                  but do not contain other reducing sugars                nonquantitative) test system in a reagent             FOR FURTHER INFORMATION CONTACT:       Paul
                                                  (e.g., galactose, lactose). Therefore, such             tablet format that is intended to measure             Webster, Director, Financial
                                                  materials might not readily detect an                   glucosuria (glucose in urine) from the                Management Division, Office of Block
                                                  issue with the device’s safety or                       premarket notification requirements.                  Grant Assistance, Office of Community
                                                  effectiveness in detecting other reducing               Manufacturers of this device type must                Planning and Development, Department
                                                  sugars, before causing harm. The                        continue to submit and receive FDA                    of Housing and Urban Development,
                                                  petition provided insufficient                          clearance of a 510(k) before marketing                451 7th Street, SW., Room 7180,
                                                  information to support the position that                their device, as well as comply with all              Washington, DC 20410; telephone
                                                  changes in the device that could affect                 other applicable requirements under the               number 202–402–4563 (this is not a toll-
                                                  safety and effectiveness will either be                 FD&C Act.                                             free number). Individuals with speech
                                                  readily detectable or not materially
                                                                                                          V. Reference                                          or hearing impairments may access this
                                                  increase risks. Moreover, changes in the
                                                                                                                                                                number through TTY by calling the toll-
                                                  device that could affect safety and                       The following reference is on display               free Federal Relay Service at 800–877–
                                                  effectiveness might materially increase                 in the Division of Dockets Management                 8339. FAX inquiries (but not comments)
                                                  the risk of injury, incorrect diagnosis, or             (HFA–305), Food and Drug                              may be sent to Mr. Webster at 202–708–
                                                  ineffective treatment given the device                  Administration, 5630 Fishers Lane, Rm.                1798 (this is not a toll-free number).
                                                  type’s intended uses. The petition also                 1061, Rockville, MD 20852, and is
                                                  did not provide information to the                                                                            SUPPLEMENTARY INFORMATION:
                                                                                                          available for viewing by interested
                                                  contrary. The petition did not provide                  persons between 9 a.m. and 4 p.m.,                    I. Background
                                                  any information regarding the fourth                    Monday through Friday; it is also                        The Consolidated and Further
                                                  factor.                                                 available electronically at http://
                                                     In addition to these four factors, FDA                                                                     Continuing Appropriations Act, 2015
                                                                                                          www.regulations.gov. FDA has verified                 (Public Law 113–235, approved
                                                  considers the ‘‘limitations on                          the Web site address, as of the date this
                                                  exemption.’’ Manufacturers of any                                                                             December 16, 2014) (2015
                                                                                                          document publishes in the Federal                     Appropriations Act) provided that ‘‘the
                                                  commercially distributed device for                     Register, but Web sites are subject to
                                                  which FDA has granted an exemption                                                                            Secretary shall collect fees from
                                                                                                          change over time.                                     borrowers . . . to result in a credit
                                                  from the requirement of premarket
                                                                                                          1. ‘‘Procedures for Class II Device                   subsidy cost of zero for guaranteeing’’
                                                  notification must still submit a
                                                                                                                Exemptions from Premarket Notification,         Section 108 loans. The Continuing
                                                  premarket notification to FDA prior to                        Guidance for Industry and CDRH Staff,’’
                                                  marketing the device when any of the                                                                          Appropriations Act, 2016 (Public Law
                                                                                                                February 1998, available at http://
                                                  limitations of exemption are exceeded.                                                                        114–53, approved September 30, 2015)
                                                                                                                www.fda.gov/downloads/
                                                  The general limitations of exemption                          MedicalDevices/                                 continued the 2015 provision. This
                                                  from premarket notification contained                         DeviceRegulationandGuidance/                    continued funding act was followed by
                                                  in § 862.9 (21 CFR 862.9) are broadly                         GuidanceDocuments/UCM080199.pdf.                The Consolidated Appropriations Act,
                                                  applicable to in vitro diagnostic (IVD)                                                                       2016, Public Law 114–133, approved
                                                                                                            Dated: September 28, 2016.
                                                  devices classified under part 862 (21                                                                         December 18, 2015) (2016
                                                                                                          Leslie Kux,
                                                  CFR part 862). Under § 862.9, the                                                                             Appropriations Act), which had
                                                                                                          Associate Commissioner for Policy.                    identical language regarding Section 108
                                                  exemption from the premarket
                                                                                                          [FR Doc. 2016–23901 Filed 10–3–16; 8:45 am]           credit subsidy to the 2015
                                                  notification requirements applies, in the
                                                  case of IVD devices, only to those                      BILLING CODE 4164–01–P                                Appropriations Act. The fiscal year
                                                  devices under part 862 for which                                                                              2017 HUD appropriations bills under
                                                  misdiagnosis, as a result of using the                                                                        consideration in the House of
                                                  device, would not be associated with                    DEPARTMENT OF HOUSING AND                             Representatives (H.R. 5394), and the
                                                  high morbidity or mortality. FDA has                    URBAN DEVELOPMENT                                     Senate (S. 2844) also have identical
                                                  previously assessed that this limitation                                                                      language regarding the credit subsidy
                                                  is exceeded, and a premarket                            24 CFR Part 570                                       for the Section 108 Program, and it is
                                                  notification is necessary to provide a                                                                        expected that, when enacted, the final
                                                  reasonable assurance of the safety and                  [Docket No. FR–5767–N–05]                             fiscal year 2017 appropriations act will
                                                  effectiveness of an IVD device, when                                                                          as well.
                                                                                                          RIN 2506–AC35                                            On November 3, 2015, HUD
                                                  such device is intended for use in
                                                  screening or diagnosis of familial or                   Section 108 Loan Guarantee Program:                   published a final rule (80 FR 67626)
                                                  acquired genetic disorders, including                   Announcement of Fee To Cover Credit                   following a February 5, 2015 proposed
                                                  inborn errors of metabolism                             Subsidy Costs                                         rule (80 FR 6470) that amended the
                                                  (§ 862.9(c)(2)) or intended for use in                                                                        Section 108 Program regulations at 24
                                                  diabetes management (§ 862.9(c)(5)).                    AGENCY:  Office of the Assistant                      CFR part 570 to establish additional
                                                  The copper reduction tablet test                        Secretary for Community Planning and                  procedures, including procedures for
                                                  described in the petition is intended for               Development, HUD.                                     determining the amount of the fee and
                                                  such uses and would likely exceed the                   ACTION: Announcement of fee.                          for a 30-day public comment process
                                                  limitations just described.                                                                                   when HUD adopts changes to the
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                     Accordingly, for all of the foregoing                SUMMARY:   This document announces the                assumptions underlying the fee
                                                  reasons, the petition failed to                         fee that HUD will collect from                        calculation or if the fee structure itself
                                                  demonstrate that a premarket                            borrowers of loans guaranteed under                   raises new considerations for borrowers.
                                                  submission is not necessary to provide                  HUD’s Section 108 Loan Guarantee                         HUD is required to collect fees from
                                                  a reasonable assurance of the safety and                Program (Section 108 Program) to offset               Section 108 borrowers when necessary
                                                  effectiveness of the device intended for                the credit subsidy costs of the                       to offset the credit subsidy costs to the
                                                  such uses. Therefore, FDA is issuing                    guaranteed loans pursuant to                          Federal government to guarantee
                                                  this order denying the petition                         commitments awarded in FY 2017.                       Section 108 loans. Following


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Document Created: 2016-10-04 03:04:03
Document Modified: 2016-10-04 03:04:03
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal order.
DatesThis order is effective October 4, 2016.
ContactSheila Connors, Center for Devices and Radiological Health (CDRH), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4620, Silver Spring, MD 20993-0002, 301- 796-6181, [email protected]
FR Citation81 FR 68295 

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