82_FR_50343 82 FR 50135 - Acceptance Review for De Novo Classification Requests; Draft Guidance for Industry and Food and Drug Administration Staff; Availability

82 FR 50135 - Acceptance Review for De Novo Classification Requests; Draft Guidance for Industry and Food and Drug Administration Staff; Availability

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 82, Issue 208 (October 30, 2017)

Page Range50135-50138
FR Document2017-23500

The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled ``Acceptance Review for De Novo Classification Requests.'' The purpose of this draft guidance is to explain the procedures and criteria FDA intends to use in assessing whether a request for an evaluation of automatic class III designation (De Novo classification request or De Novo request) meets a minimum threshold of acceptability and should be accepted for substantive review. This draft guidance discusses De Novo acceptance review policies and procedures, ``Refuse to Accept'' principles, and the elements of the De Novo Acceptance Checklist and the Recommended Content Checklist and is being issued to be responsive to an explicit deliverable identified in the Medical Device User Fee Amendments of 2017 (MDUFA IV). This draft guidance is not final nor is it in effect at this time.

Federal Register, Volume 82 Issue 208 (Monday, October 30, 2017)
[Federal Register Volume 82, Number 208 (Monday, October 30, 2017)]
[Notices]
[Pages 50135-50138]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-23500]


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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2017-D-6069]


Acceptance Review for De Novo Classification Requests; Draft 
Guidance for Industry and Food and Drug Administration Staff; 
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the availability of the draft guidance entitled ``Acceptance Review for 
De Novo Classification Requests.'' The purpose of this draft guidance 
is to explain the procedures and criteria FDA intends to use in 
assessing whether a request for an evaluation of automatic class III 
designation (De Novo classification request or De Novo request) meets a 
minimum threshold of acceptability and should be accepted for 
substantive review. This draft guidance discusses De Novo acceptance 
review policies and procedures, ``Refuse to Accept'' principles, and 
the elements of the De Novo Acceptance Checklist and the Recommended 
Content Checklist and is being issued to be responsive to an explicit 
deliverable identified in the Medical Device User Fee Amendments of 
2017 (MDUFA IV). This draft guidance is not final nor is it in effect 
at this time.

DATES: Submit either electronic or written comments on the draft 
guidance by December 29, 2017 to ensure that the Agency considers your 
comment on this draft guidance before it begins work on the final 
version of the guidance.

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

Electronic Submissions

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

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper 
submissions): Dockets Management Staff (HFA-305), Food and Drug 
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets 
Management Staff, FDA will post your comment, as well as any 
attachments, except for information submitted, marked and identified, 
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No. 
FDA-2017-D-6069 for ``Acceptance Review for De Novo Classification 
Requests; Draft Guidance for Industry and Food and Drug Administration 
Staff; 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

[[Page 50136]]

submission. You should submit two copies total. One copy will include 
the information you claim to be confidential with a heading or cover 
note that states ``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' 
The Agency will review this copy, including the claimed confidential 
information, in its consideration of comments. The second copy, which 
will have the claimed confidential information redacted/blacked out, 
will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management 
Staff. If you do not wish your name and contact information to be made 
publicly available, you can provide this information on the cover sheet 
and not in the body of your comments and you must identify this 
information as ``confidential.'' Any information marked as 
``confidential'' will not be disclosed except in accordance with 21 CFR 
10.20 and other applicable disclosure law. For more information about 
FDA's posting of comments to public dockets, see 80 FR 56469, September 
18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or 
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in 
the heading of this document, into the ``Search'' box and follow the 
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, 
Rm. 1061, Rockville, MD 20852.
    You may submit comments on any guidance at any time (see 21 CFR 
10.115(g)(5)).
    An electronic copy of the guidance document is available for 
download from the internet. See the SUPPLEMENTARY INFORMATION section 
for information on electronic access to the guidance. Submit written 
requests for a single hard copy of the draft guidance document entitled 
``Acceptance Review for De Novo Classification Requests'' to the Office 
of the Center Director, Guidance and Policy Development, Center for 
Devices and Radiological Health (CDRH), Food and Drug Administration, 
10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993-
0002 or the Office of Communication, Outreach, and Development, Center 
for Biologics Evaluation and Research (CBER), 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 request.

FOR FURTHER INFORMATION CONTACT: Sergio de del Castillo, Center for 
Devices and Radiological Health, Food and Drug Administration, 10903 
New Hampshire Ave., Bldg. 66, Rm. 1538, Silver Spring, MD 20993-0002, 
301-796-6419; 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

    The automatic class III designation for devices of a new type 
occurs by operation of law and without any action by FDA, regardless of 
the level of risk posed by the device. Any device that is of a new type 
that was not in commercial distribution before May 28, 1976, is 
automatically classified as, and remains within, class III and requires 
premarket approval unless and until FDA takes an action to classify or 
reclassify the device section 513(f)(1) of the Federal Food, Drug, and 
Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)). We refer to these 
devices as ``postamendments devices'' because they were not in 
commercial distribution prior to the date of enactment of the Medical 
Device Amendments of 1976.
    FDA may classify a device through the De Novo classification 
process, which is the pathway authorized under section 513(f)(2) of the 
FD&C Act. A person may submit a De Novo request after submitting a 
premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 
360(k)) and receiving a not substantially equivalent (NSE) 
determination (section 513(f)(2)(A)(i) of the FD&C Act). A person may 
also submit a De Novo request without first submitting a premarket 
notification under section 510(k), if the person determines that there 
is no legally marketed device upon which to base a determination of 
substantial equivalence (section 513(f)(2)(A)(ii) of the FD&C Act).
    Upon receipt of a De Novo request, FDA is required to classify the 
device by written order (section 513(f)(2)(A)(iii) of the FD&C Act). 
The classification will be according to the criteria under section 
513(a)(1) of the FD&C Act. Per section 513(f)(2)(B)(i) of the FD&C Act, 
the classification is the initial classification of the device for the 
purposes of section 513(f)(1) of the FD&C Act.
    We believe De Novo classification enhances patients' access to 
beneficial innovation, in part by reducing regulatory burdens. When FDA 
classifies a device into class I or II via the De Novo classification 
process, the device can serve as a predicate for future devices of that 
type, including for 510(k)s (section 513(f)(2)(B)(i)). As a result, 
after a De Novo request is granted, other device sponsors do not have 
to submit a De Novo request or premarket application under section 515 
of the FD&C Act (21 U.S.C. 360e)) in order to market a substantially 
equivalent device (see 21 U.S.C. 360c(i), defining ``substantial 
equivalence''). Instead, other device sponsors can use the less-
burdensome 510(k) process, when applicable, as a pathway to market 
their device.
    FDA is issuing this draft guidance to provide clarity regarding the 
Agency's expectations for information to be submitted in a De Novo 
request and ensure predictability and consistency for sponsors. 
Focusing the Agency's review resources on complete De Novo requests 
will provide a more efficient approach to ensuring that safe and 
effective medical devices reach patients as quickly as possible. 
Moreover, with the enactment of MDUFA IV, FDA agreed to issuance of 
draft (and final) guidance which includes a submission checklist to 
facilitate a more efficient and timely review process to assist with 
new performance goals. Acceptance review therefore takes on additional 
importance in both encouraging quality applications from De Novo 
requesters and allowing the Agency to appropriately concentrate 
resources on complete applications.
    FDA anticipates that the Agency and industry may need a period of 
time to operationalize the policies within this guidance, when 
finalized. Therefore, if all criteria necessary to meet a minimum 
threshold of acceptability for De Novo requests as outlined in this 
guidance, when finalized, are not included in a De Novo request 
received by FDA before or up to 60 days after the publication of this 
guidance, when finalized, CDRH staff does not generally intend to 
refuse to accept.

II. Significance of Guidance

    This draft guidance is being issued consistent with FDA's good 
guidance practices regulation (21 CFR 10.115). The draft guidance, when 
finalized, will represent the current thinking of FDA on ``Acceptance 
Review for De Novo Classification Requests.'' It does not establish any 
rights for any person and is not binding on FDA or the public. You can 
use an alternative approach if

[[Page 50137]]

it satisfies the requirements of the applicable statutes and 
regulations. This draft guidance is not subject to Executive Order 
12866.

III. Electronic Access

    Persons interested in obtaining a copy of the draft guidance may do 
so by downloading an electronic copy from the internet. A search 
capability for all Center for Devices and Radiological Health guidance 
documents is available at https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. Guidance 
documents are also available at https://www.fda.gov/BiologicsBloodVaccines/GuidanceComplianceRegulatoryInformation/default.htm or https://www.regulations.gov. Persons unable to download 
an electronic copy of ``Acceptance Review for De Novo Classification 
Requests'' may send an email request to [email protected] to 
receive an electronic copy of the document. Please use the document 
number 16055 to identify the guidance you are requesting.

IV. Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act (44 U.S.C. 3501-3502), Federal 
Agencies must obtain approval from the Office of Management and Budget 
(OMB) for each collection of information they conduct or sponsor. 
``Collection of information'' is defined in 44 U.S.C. 3502(3) and 5 CFR 
1320.3(c) and includes Agency requests or requirements that members of 
the public submit reports, keep records, or provide information to a 
third party. Section 3506(c) (2)(A) of the PRA (44 U.S.C. 3506 
(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the 
Federal Register concerning each proposed collection of information, 
including each proposed revision of an existing collection of 
information, before submitting the collection to OMB for approval. To 
comply with this requirement, FDA is publishing notice of the proposed 
collection of information set forth in this document.
    With respect to the following collection of information, FDA 
invites comments on these topics: (1) Whether the proposed collection 
of information is necessary for the proper performance of FDA's 
functions, including whether the information will have practical 
utility; (2) the accuracy of FDA's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used; (3) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (4) ways 
to minimize the burden of the collection of information on respondents, 
including through the use of automated collection techniques, when 
appropriate, and other forms of information technology.

De Novo Classification Process (Evaluation of Automatic Class III 
Designation)

OMB Control Number 0910-0844--Revision

    To aid in the acceptance review, the guidance recommends that 
requesters complete and submit with their De Novo request an Acceptance 
Checklist that identifies the location of supporting information for 
each acceptance element and a Recommended Content Checklist that 
identifies the location of supporting information for each recommended 
content element. Therefore, we request revision of OMB control number 
0910-0844, ``De Novo Classification Process (Evaluation of Automatic 
Class III Designation)'' to include the Acceptance Checklist and the 
Recommended Content Checklist in the hourly burden estimate for De Novo 
requests.
    We previously estimated the average burden per response for a De 
Novo request under 21 U.S.C. 513(f)(2)(i) to be 100 hours and under 21 
U.S.C. 513(f)(2)(ii) to be 180 hours. We estimate that it will take 
approximately 1 hour to prepare an Acceptance Checklist and 1 hour to 
prepare a Recommended Content Checklist. Our estimate assumes that each 
De Novo request will include both checklists. Therefore, we estimate 
the revised average burden per response for a De Novo request under 21 
U.S.C. 513(f)(2)(i) to be 102 hours and under 21 U.S.C. 513(f)(2)(ii) 
to be 182 hours. The revision results in a 104-hour increase in the 
total burden estimate. The average burden per response is based on 
estimates by FDA administrative and technical staff that are familiar 
with the requirements for submission of a De Novo request (and related 
materials), have consulted and advised manufacturers on submissions, 
and have reviewed the documentation submitted.
    Approved operating and maintenance costs for a De Novo request 
include printing, shipping, and eCopy costs. We believe any increase of 
the operating and maintenance cost resulting from the addition of the 
Acceptance Checklist and Recommended Content Checklist to be de 
minimis. Therefore, we are not requesting revision of the operating and 
maintenance cost estimate for OMB control number 0910-0844.
    Respondents to the information collection are medical device 
manufacturers seeking to market medical device products through 
submission of a De Novo classification request under section 513(f)(2) 
of the FD&C Act.
    FDA estimates the burden of this collection of information as 
follows:

                                                     Table 1--Estimated Annual Reporting Burden \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Total
                                                            Number of       Number of     Total annual   Average burden                   operating and
                        Activity                           respondents    responses per     responses     per response     Total hours     maintenance
                                                                           respondent                                                       costs \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      De Novo Request Under 21 U.S.C. 513(f)(2)(i)
--------------------------------------------------------------------------------------------------------------------------------------------------------
CDRH...................................................              25               1              25             102           2,550  ...............
CBER...................................................               1               1               1             102             102  ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      De Novo Request Under 21 U.S.C. 513(f)(2)(ii)
--------------------------------------------------------------------------------------------------------------------------------------------------------
CDRH...................................................              25               1              25             182           4,550  ...............
CBER...................................................               1               1               1             182             182  ...............
                                                        ------------------------------------------------------------------------------------------------
    Total De Novo requests.............................  ..............  ..............              52  ..............           7,384           $6,308
Request for withdrawal\2\..............................               5               1               5              10              50               $5
                                                        ------------------------------------------------------------------------------------------------

[[Page 50138]]

 
        Total..........................................  ..............  ..............  ..............  ..............           7,434           $6,313
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ There are no capital costs associated with this collection of information.
\2\ No change from approved information collection. This information is retained for the convenience of the reader.


    Dated: October 24, 2017.
Anna K. Abram,
Deputy Commissioner for Policy, Planning, Legislation, and Analysis.
[FR Doc. 2017-23500 Filed 10-27-17; 8:45 am]
 BILLING CODE 4164-01-P



                                                                             Federal Register / Vol. 82, No. 208 / Monday, October 30, 2017 / Notices                                          50135

                                                patient or unique to that patient’s                     at https://www.fda.gov/MedicalDevices/                ADDRESSES: You may submit comments
                                                treatment or diagnosis that has been                    DeviceRegulationandGuidance/                          on any guidance at any time as follows:
                                                recorded, stored, processed, retrieved,                 GuidanceDocuments/default.htm.
                                                                                                                                                              Electronic Submissions
                                                and/or derived from a legally marketed                  Guidance documents are also available
                                                medical device. This information may                    at https://www.regulations.gov. Persons                 Submit electronic comments in the
                                                include, but is not limited to, recorded                unable to download an electronic copy                 following way:
                                                patient data, device usage/output                       of ‘‘Manufacturers Sharing Patient-                     • Federal eRulemaking Portal:
                                                statistics, health care provider inputs,                Specific Information from Medical                     https://www.regulations.gov. Follow the
                                                incidence of alarms, and/or records of                  Devices with Patients Upon Request’’                  instructions for submitting comments.
                                                device malfunctions or failures.                        may send an email request to CDRH-                    Comments submitted electronically,
                                                   FDA developed this guidance to                       Guidance@fda.hhs.gov to receive an                    including attachments, to https://
                                                convey FDA’s position regarding                         electronic copy of the document. Please               www.regulations.gov will be posted to
                                                manufacturers appropriately and                         use the document number 1500067 to                    the docket unchanged. Because your
                                                responsibly sharing patient-specific                    identify the guidance you are                         comment will be made public, you are
                                                information with that patient at that                   requesting.                                           solely responsible for ensuring that your
                                                patient’s request. In general,                                                                                comment does not include any
                                                                                                          Dated: October 24, 2017.
                                                manufacturers may do so without                                                                               confidential information that you or a
                                                undergoing additional premarket review                  Lauren Silvis,                                        third party may not wish to be posted,
                                                in advance. FDA generally would not                     Chief of Staff.                                       such as medical information, your or
                                                consider patient-specific information to                [FR Doc. 2017–23517 Filed 10–27–17; 8:45 am]          anyone else’s Social Security number, or
                                                be ‘‘labeling,’’ as defined in section                  BILLING CODE 4164–01–P                                confidential business information, such
                                                201(m) of the Federal Food, Drug, and                                                                         as a manufacturing process. Please note
                                                Cosmetic Act (the FD&C Act) (21 U.S.C.                                                                        that if you include your name, contact
                                                321(m)). FDA is aware that when                         DEPARTMENT OF HEALTH AND                              information, or other information that
                                                manufacturers share patient-specific                    HUMAN SERVICES                                        identifies you in the body of your
                                                information with patients,                                                                                    comments, that information will be
                                                manufacturers also may provide them                     Food and Drug Administration                          posted on https://www.regulations.gov.
                                                with supplemental information or other                  [Docket No. FDA–2017–D–6069]                            • If you want to submit a comment
                                                materials (e.g., descriptions of intended                                                                     with confidential information that you
                                                use, benefit and risk information,                      Acceptance Review for De Novo                         do not wish to be made available to the
                                                instructions for use) that may be                       Classification Requests; Draft                        public, submit the comment as a
                                                considered labeling. Any labeling is                    Guidance for Industry and Food and                    written/paper submission and in the
                                                subject to applicable requirements in                   Drug Administration Staff; Availability               manner detailed (see ‘‘Written/Paper
                                                the FD&C Act and FDA regulations.                                                                             Submissions’’ and ‘‘Instructions’’).
                                                                                                        AGENCY:    Food and Drug Administration,
                                                   In the Federal Register of June 10,
                                                                                                        HHS.                                                  Written/Paper Submissions
                                                2016 (81 FR 37603), FDA announced the
                                                availability of the draft guidance                      ACTION:   Notice of availability.                       Submit written/paper submissions as
                                                formerly entitled ‘‘Dissemination of                                                                          follows:
                                                                                                        SUMMARY:    The Food and Drug                           • Mail/Hand delivery/Courier (for
                                                Patient-Specific Information from                       Administration (FDA or Agency) is
                                                Devices by Device Manufacturers’’ and                                                                         written/paper submissions): Dockets
                                                                                                        announcing the availability of the draft              Management Staff (HFA–305), Food and
                                                interested parties were invited to                      guidance entitled ‘‘Acceptance Review
                                                comment by August 9, 2016. FDA has                                                                            Drug Administration, 5630 Fishers
                                                                                                        for De Novo Classification Requests.’’                Lane, Rm. 1061, Rockville, MD 20852.
                                                considered all of the public comments                   The purpose of this draft guidance is to
                                                received prior to finalizing this                                                                               • For written/paper comments
                                                                                                        explain the procedures and criteria FDA               submitted to the Dockets Management
                                                guidance.                                               intends to use in assessing whether a                 Staff, FDA will post your comment, as
                                                II. Significance of Guidance                            request for an evaluation of automatic                well as any attachments, except for
                                                   This guidance is being issued                        class III designation (De Novo                        information submitted, marked and
                                                consistent with FDA’s good guidance                     classification request or De Novo                     identified, as confidential, if submitted
                                                practices regulation (21 CFR 10.115).                   request) meets a minimum threshold of                 as detailed in ‘‘Instructions.’’
                                                The guidance represents the current                     acceptability and should be accepted for                Instructions: All submissions received
                                                thinking of FDA on ‘‘Manufacturers                      substantive review. This draft guidance               must include the Docket No. FDA–
                                                Sharing Patient-Specific Information                    discusses De Novo acceptance review                   2017–D–6069 for ‘‘Acceptance Review
                                                from Medical Devices with Patients                      policies and procedures, ‘‘Refuse to                  for De Novo Classification Requests;
                                                Upon Request.’’ It does not establish any               Accept’’ principles, and the elements of              Draft Guidance for Industry and Food
                                                rights for any person and is not binding                the De Novo Acceptance Checklist and                  and Drug Administration Staff;
                                                on FDA or the public. You can use an                    the Recommended Content Checklist                     Availability.’’ Received comments will
                                                alternative approach if it satisfies the                and is being issued to be responsive to               be placed in the docket and, except for
                                                requirements of the applicable statutes                 an explicit deliverable identified in the             those submitted as ‘‘Confidential
                                                and regulations. This guidance is not                   Medical Device User Fee Amendments                    Submissions,’’ publicly viewable at
                                                subject to Executive Order 12866.                       of 2017 (MDUFA IV). This draft                        https://www.regulations.gov or at the
                                                                                                        guidance is not final nor is it in effect
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                                                                              Dockets Management Staff between 9
                                                III. Electronic Access                                  at this time.                                         a.m. and 4 p.m., Monday through
                                                   Persons interested in obtaining a copy               DATES: Submit either electronic or                    Friday.
                                                of the guidance may do so by                            written comments on the draft guidance                  • Confidential Submissions—To
                                                downloading an electronic copy from                     by December 29, 2017 to ensure that the               submit a comment with confidential
                                                the internet. A search capability for all               Agency considers your comment on this                 information that you do not wish to be
                                                Center for Devices and Radiological                     draft guidance before it begins work on               made publicly available, submit your
                                                Health guidance documents is available                  the final version of the guidance.                    comments only as a written/paper


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                                                50136                        Federal Register / Vol. 82, No. 208 / Monday, October 30, 2017 / Notices

                                                submission. You should submit two                       assist that office in processing your                    We believe De Novo classification
                                                copies total. One copy will include the                 request.                                              enhances patients’ access to beneficial
                                                information you claim to be confidential                                                                      innovation, in part by reducing
                                                                                                        FOR FURTHER INFORMATION CONTACT:
                                                with a heading or cover note that states                                                                      regulatory burdens. When FDA
                                                                                                        Sergio de del Castillo, Center for                    classifies a device into class I or II via
                                                ‘‘THIS DOCUMENT CONTAINS
                                                                                                        Devices and Radiological Health, Food                 the De Novo classification process, the
                                                CONFIDENTIAL INFORMATION.’’ The
                                                                                                        and Drug Administration, 10903 New                    device can serve as a predicate for
                                                Agency will review this copy, including
                                                                                                        Hampshire Ave., Bldg. 66, Rm. 1538,                   future devices of that type, including for
                                                the claimed confidential information, in
                                                                                                        Silver Spring, MD 20993–0002, 301–                    510(k)s (section 513(f)(2)(B)(i)). As a
                                                its consideration of comments. The
                                                                                                        796–6419; or Stephen Ripley, Center for               result, after a De Novo request is
                                                second copy, which will have the
                                                                                                        Biologics Evaluation and Research,                    granted, other device sponsors do not
                                                claimed confidential information
                                                                                                        Food and Drug Administration, 10903                   have to submit a De Novo request or
                                                redacted/blacked out, will be available
                                                                                                        New Hampshire Ave., Bldg. 71, Rm.                     premarket application under section 515
                                                for public viewing and posted on
                                                                                                        7301, Silver Spring, MD 20993–0002,                   of the FD&C Act (21 U.S.C. 360e)) in
                                                https://www.regulations.gov. Submit
                                                                                                        240–402–7911.                                         order to market a substantially
                                                both copies to the Dockets Management
                                                Staff. If you do not wish your name and                 SUPPLEMENTARY INFORMATION:                            equivalent device (see 21 U.S.C. 360c(i),
                                                contact information to be made publicly                                                                       defining ‘‘substantial equivalence’’).
                                                                                                        I. Background                                         Instead, other device sponsors can use
                                                available, you can provide this
                                                information on the cover sheet and not                     The automatic class III designation for            the less-burdensome 510(k) process,
                                                in the body of your comments and you                    devices of a new type occurs by                       when applicable, as a pathway to
                                                must identify this information as                       operation of law and without any action               market their device.
                                                ‘‘confidential.’’ Any information marked                by FDA, regardless of the level of risk                  FDA is issuing this draft guidance to
                                                as ‘‘confidential’’ will not be disclosed               posed by the device. Any device that is               provide clarity regarding the Agency’s
                                                except in accordance with 21 CFR 10.20                  of a new type that was not in                         expectations for information to be
                                                and other applicable disclosure law. For                commercial distribution before May 28,                submitted in a De Novo request and
                                                more information about FDA’s posting                    1976, is automatically classified as, and             ensure predictability and consistency
                                                of comments to public dockets, see 80                   remains within, class III and requires                for sponsors. Focusing the Agency’s
                                                FR 56469, September 18, 2015, or access                 premarket approval unless and until                   review resources on complete De Novo
                                                the information at: https://www.gpo.gov/                FDA takes an action to classify or                    requests will provide a more efficient
                                                fdsys/pkg/FR-2015-09-18/pdf/2015-                       reclassify the device section 513(f)(1) of            approach to ensuring that safe and
                                                23389.pdf.                                              the Federal Food, Drug, and Cosmetic                  effective medical devices reach patients
                                                                                                        Act (the FD&C Act) (21 U.S.C.                         as quickly as possible. Moreover, with
                                                   Docket: For access to the docket to
                                                                                                        360c(f)(1)). We refer to these devices as             the enactment of MDUFA IV, FDA
                                                read background documents or the
                                                                                                        ‘‘postamendments devices’’ because                    agreed to issuance of draft (and final)
                                                electronic and written/paper comments
                                                                                                        they were not in commercial                           guidance which includes a submission
                                                received, go to https://
                                                                                                        distribution prior to the date of                     checklist to facilitate a more efficient
                                                www.regulations.gov and insert the
                                                                                                        enactment of the Medical Device                       and timely review process to assist with
                                                docket number, found in brackets in the
                                                                                                        Amendments of 1976.                                   new performance goals. Acceptance
                                                heading of this document, into the
                                                                                                                                                              review therefore takes on additional
                                                ‘‘Search’’ box and follow the prompts                      FDA may classify a device through
                                                                                                                                                              importance in both encouraging quality
                                                and/or go to the Dockets Management                     the De Novo classification process,
                                                                                                                                                              applications from De Novo requesters
                                                Staff, 5630 Fishers Lane, Rm. 1061,                     which is the pathway authorized under
                                                                                                                                                              and allowing the Agency to
                                                Rockville, MD 20852.                                    section 513(f)(2) of the FD&C Act. A                  appropriately concentrate resources on
                                                   You may submit comments on any                       person may submit a De Novo request                   complete applications.
                                                guidance at any time (see 21 CFR                        after submitting a premarket notification                FDA anticipates that the Agency and
                                                10.115(g)(5)).                                          under section 510(k) of the FD&C Act                  industry may need a period of time to
                                                   An electronic copy of the guidance                   (21 U.S.C. 360(k)) and receiving a not                operationalize the policies within this
                                                document is available for download                      substantially equivalent (NSE)                        guidance, when finalized. Therefore, if
                                                from the internet. See the                              determination (section 513(f)(2)(A)(i) of             all criteria necessary to meet a
                                                SUPPLEMENTARY INFORMATION section for                   the FD&C Act). A person may also                      minimum threshold of acceptability for
                                                information on electronic access to the                 submit a De Novo request without first                De Novo requests as outlined in this
                                                guidance. Submit written requests for a                 submitting a premarket notification                   guidance, when finalized, are not
                                                single hard copy of the draft guidance                  under section 510(k), if the person                   included in a De Novo request received
                                                document entitled ‘‘Acceptance Review                   determines that there is no legally                   by FDA before or up to 60 days after the
                                                for De Novo Classification Requests’’ to                marketed device upon which to base a                  publication of this guidance, when
                                                the Office of the Center Director,                      determination of substantial                          finalized, CDRH staff does not generally
                                                Guidance and Policy Development,                        equivalence (section 513(f)(2)(A)(ii) of              intend to refuse to accept.
                                                Center for Devices and Radiological                     the FD&C Act).
                                                Health (CDRH), Food and Drug                               Upon receipt of a De Novo request,                 II. Significance of Guidance
                                                Administration, 10903 New Hampshire                     FDA is required to classify the device by                This draft guidance is being issued
                                                Ave., Bldg. 66, Rm. 5431, Silver Spring,                written order (section 513(f)(2)(A)(iii) of           consistent with FDA’s good guidance
                                                MD 20993–0002 or the Office of                          the FD&C Act). The classification will                practices regulation (21 CFR 10.115).
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                                                Communication, Outreach, and                            be according to the criteria under                    The draft guidance, when finalized, will
                                                Development, Center for Biologics                       section 513(a)(1) of the FD&C Act. Per                represent the current thinking of FDA
                                                Evaluation and Research (CBER), Food                    section 513(f)(2)(B)(i) of the FD&C Act,              on ‘‘Acceptance Review for De Novo
                                                and Drug Administration, 10903 New                      the classification is the initial                     Classification Requests.’’ It does not
                                                Hampshire Ave., Bldg. 71, Rm. 3128,                     classification of the device for the                  establish any rights for any person and
                                                Silver Spring, MD 20993–0002. Send                      purposes of section 513(f)(1) of the                  is not binding on FDA or the public.
                                                one self-addressed adhesive label to                    FD&C Act.                                             You can use an alternative approach if


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                                                                                     Federal Register / Vol. 82, No. 208 / Monday, October 30, 2017 / Notices                                                                              50137

                                                it satisfies the requirements of the                                    collection to OMB for approval. To                                   We previously estimated the average
                                                applicable statutes and regulations. This                               comply with this requirement, FDA is                               burden per response for a De Novo
                                                draft guidance is not subject to                                        publishing notice of the proposed                                  request under 21 U.S.C. 513(f)(2)(i) to be
                                                Executive Order 12866.                                                  collection of information set forth in                             100 hours and under 21 U.S.C.
                                                                                                                        this document.                                                     513(f)(2)(ii) to be 180 hours. We
                                                III. Electronic Access
                                                                                                                           With respect to the following                                   estimate that it will take approximately
                                                   Persons interested in obtaining a copy                               collection of information, FDA invites                             1 hour to prepare an Acceptance
                                                of the draft guidance may do so by                                      comments on these topics: (1) Whether                              Checklist and 1 hour to prepare a
                                                downloading an electronic copy from                                     the proposed collection of information                             Recommended Content Checklist. Our
                                                the internet. A search capability for all                               is necessary for the proper performance                            estimate assumes that each De Novo
                                                Center for Devices and Radiological                                     of FDA’s functions, including whether                              request will include both checklists.
                                                Health guidance documents is available                                  the information will have practical                                Therefore, we estimate the revised
                                                at https://www.fda.gov/MedicalDevices/                                  utility; (2) the accuracy of FDA’s                                 average burden per response for a De
                                                DeviceRegulationandGuidance/                                            estimate of the burden of the proposed                             Novo request under 21 U.S.C.
                                                GuidanceDocuments/default.htm.                                          collection of information, including the                           513(f)(2)(i) to be 102 hours and under 21
                                                Guidance documents are also available                                   validity of the methodology and                                    U.S.C. 513(f)(2)(ii) to be 182 hours. The
                                                at https://www.fda.gov/BiologicsBlood                                   assumptions used; (3) ways to enhance                              revision results in a 104-hour increase
                                                Vaccines/GuidanceCompliance                                             the quality, utility, and clarity of the                           in the total burden estimate. The
                                                RegulatoryInformation/default.htm or                                    information to be collected; and (4)                               average burden per response is based on
                                                https://www.regulations.gov. Persons                                    ways to minimize the burden of the
                                                unable to download an electronic copy                                                                                                      estimates by FDA administrative and
                                                                                                                        collection of information on                                       technical staff that are familiar with the
                                                of ‘‘Acceptance Review for De Novo                                      respondents, including through the use
                                                Classification Requests’’ may send an                                                                                                      requirements for submission of a De
                                                                                                                        of automated collection techniques,                                Novo request (and related materials),
                                                email request to CDRH-Guidance@                                         when appropriate, and other forms of
                                                fda.hhs.gov to receive an electronic                                                                                                       have consulted and advised
                                                                                                                        information technology.                                            manufacturers on submissions, and
                                                copy of the document. Please use the
                                                document number 16055 to identify the                                   De Novo Classification Process                                     have reviewed the documentation
                                                guidance you are requesting.                                            (Evaluation of Automatic Class III                                 submitted.
                                                                                                                        Designation)                                                         Approved operating and maintenance
                                                IV. Paperwork Reduction Act of 1995
                                                                                                                        OMB Control Number 0910–0844—                                      costs for a De Novo request include
                                                   Under the Paperwork Reduction Act                                                                                                       printing, shipping, and eCopy costs. We
                                                (44 U.S.C. 3501–3502), Federal Agencies                                 Revision
                                                                                                                                                                                           believe any increase of the operating
                                                must obtain approval from the Office of                                   To aid in the acceptance review, the                             and maintenance cost resulting from the
                                                Management and Budget (OMB) for each                                    guidance recommends that requesters                                addition of the Acceptance Checklist
                                                collection of information they conduct                                  complete and submit with their De                                  and Recommended Content Checklist to
                                                or sponsor. ‘‘Collection of information’’                               Novo request an Acceptance Checklist                               be de minimis. Therefore, we are not
                                                is defined in 44 U.S.C. 3502(3) and 5                                   that identifies the location of supporting                         requesting revision of the operating and
                                                CFR 1320.3(c) and includes Agency                                       information for each acceptance element                            maintenance cost estimate for OMB
                                                requests or requirements that members                                   and a Recommended Content Checklist                                control number 0910–0844.
                                                of the public submit reports, keep                                      that identifies the location of supporting
                                                records, or provide information to a                                    information for each recommended                                     Respondents to the information
                                                third party. Section 3506(c) (2)(A) of the                              content element. Therefore, we request                             collection are medical device
                                                PRA (44 U.S.C. 3506 (c)(2)(A)) requires                                 revision of OMB control number 0910–                               manufacturers seeking to market
                                                Federal Agencies to provide a 60-day                                    0844, ‘‘De Novo Classification Process                             medical device products through
                                                notice in the Federal Register                                          (Evaluation of Automatic Class III                                 submission of a De Novo classification
                                                concerning each proposed collection of                                  Designation)’’ to include the Acceptance                           request under section 513(f)(2) of the
                                                information, including each proposed                                    Checklist and the Recommended                                      FD&C Act.
                                                revision of an existing collection of                                   Content Checklist in the hourly burden                               FDA estimates the burden of this
                                                information, before submitting the                                      estimate for De Novo requests.                                     collection of information as follows:

                                                                                                             TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1
                                                                                                                                                                                                                                    Total
                                                                                                                                           Number of                                      Average
                                                                                                                Number of                                           Total annual                                                operating and
                                                                       Activity                                                          responses per                                  burden per              Total hours
                                                                                                               respondents                                           responses                                                  maintenance
                                                                                                                                           respondent                                    response                                  costs 2

                                                                                                                       De Novo Request Under 21 U.S.C. 513(f)(2)(i)

                                                CDRH .....................................................                        25                           1                25                    102              2,550   ..........................
                                                CBER .....................................................                         1                           1                 1                    102                102   ..........................

                                                                                                                       De Novo Request Under 21 U.S.C. 513(f)(2)(ii)
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                                                CDRH .....................................................                        25                           1                25                    182              4,550   ..........................
                                                CBER .....................................................                         1                           1                 1                    182                182   ..........................

                                                   Total De Novo requests ..................                  ........................   ........................               52   ........................          7,384                  $6,308
                                                Request for withdrawal2 .........................                                   5                          1                 5                       10               50                      $5




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                                                50138                                Federal Register / Vol. 82, No. 208 / Monday, October 30, 2017 / Notices

                                                                                                TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1—Continued
                                                                                                                                                                                                                                             Total
                                                                                                                                           Number of                                                Average
                                                                                                                 Number of                                           Total annual                                                        operating and
                                                                       Activity                                                          responses per                                            burden per              Total hours
                                                                                                                respondents                                           responses                                                          maintenance
                                                                                                                                           respondent                                              response                                 costs 2

                                                            Total .........................................   ........................   ........................   ........................   ........................          7,434          $6,313
                                                   1   There are no capital costs associated with this collection of information.
                                                   2   No change from approved information collection. This information is retained for the convenience of the reader.


                                                  Dated: October 24, 2017.                                              comment does not include any                                                 ‘‘THIS DOCUMENT CONTAINS
                                                Anna K. Abram,                                                          confidential information that you or a                                       CONFIDENTIAL INFORMATION.’’ The
                                                Deputy Commissioner for Policy, Planning,                               third party may not wish to be posted,                                       Agency will review this copy, including
                                                Legislation, and Analysis.                                              such as medical information, your or                                         the claimed confidential information, in
                                                [FR Doc. 2017–23500 Filed 10–27–17; 8:45 am]                            anyone else’s Social Security number, or                                     its consideration of comments. The
                                                BILLING CODE 4164–01–P                                                  confidential business information, such                                      second copy, which will have the
                                                                                                                        as a manufacturing process. Please note                                      claimed confidential information
                                                                                                                        that if you include your name, contact                                       redacted/blacked out, will be available
                                                DEPARTMENT OF HEALTH AND                                                information, or other information that                                       for public viewing and posted on
                                                HUMAN SERVICES                                                          identifies you in the body of your                                           https://www.regulations.gov. Submit
                                                                                                                        comments, that information will be                                           both copies to Dockets Management
                                                Food and Drug Administration                                            posted on https://www.regulations.gov.                                       Staff. If you do not wish your name and
                                                                                                                          • If you want to submit a comment                                          contact information to be made publicly
                                                [Docket No. FDA–2016–D–3275]                                            with confidential information that you                                       available, you can provide this
                                                Product Labeling for Certain Ultrasonic                                 do not wish to be made available to the                                      information on the cover sheet and not
                                                Surgical Aspirator Devices; Guidance                                    public, submit the comment as a                                              in the body of your comments and you
                                                for Industry and Food and Drug                                          written/paper submission and in the                                          must identify this information as
                                                Administration Staff; Availability                                      manner detailed (see ‘‘Written/Paper                                         ‘‘confidential.’’ Any information marked
                                                                                                                        Submissions’’ and ‘‘Instructions’’).                                         as ‘‘confidential’’ will not be disclosed
                                                AGENCY:      Food and Drug Administration,                              Written/Paper Submissions                                                    except in accordance with 21 CFR 10.20
                                                HHS.                                                                                                                                                 and other applicable disclosure law. For
                                                                                                                           Submit written/paper submissions as                                       more information about FDA’s posting
                                                ACTION:     Notice of availability.
                                                                                                                        follows:
                                                                                                                                                                                                     of comments to public dockets, see 80
                                                SUMMARY:   The Food and Drug                                               • Mail/Hand delivery/Courier (for
                                                                                                                                                                                                     FR 56469, September 18, 2015, or access
                                                Administration (FDA or Agency) is                                       written/paper submissions): Dockets
                                                                                                                        Management Staff (HFA–305), Food and                                         the information at: https://www.gpo.gov/
                                                announcing the availability of the                                                                                                                   fdsys/pkg/FR-2015-09-18/pdf/2015-
                                                guidance entitled ‘‘Product Labeling for                                Drug Administration, 5630 Fishers
                                                                                                                        Lane, Rm. 1061, Rockville, MD 20852.                                         23389.pdf.
                                                Certain Ultrasonic Surgical Aspirator                                                                                                                   Docket: For access to the docket to
                                                Devices.’’ FDA is providing a specific                                     • For written/paper comments
                                                                                                                        submitted to Dockets Management Staff,                                       read background documents or the
                                                labeling recommendation in this                                                                                                                      electronic and written/paper comments
                                                guidance to promote the safe and                                        FDA will post your comment, as well as
                                                                                                                        any attachments, except for information                                      received, go to https://
                                                effective use of ultrasonic surgical                                                                                                                 www.regulations.gov and insert the
                                                aspirator devices. The labeling                                         submitted, marked and identified, as
                                                                                                                        confidential, if submitted as detailed in                                    docket number, found in brackets in the
                                                recommendation is being made in light                                                                                                                heading of this document, into the
                                                                                                                        ‘‘Instructions.’’
                                                of the risk of tissue dissemination and                                                                                                              ‘‘Search’’ box and follow the prompts
                                                                                                                           Instructions: All submissions received
                                                relates to use of these devices in the                                                                                                               and/or go to Dockets Management Staff,
                                                                                                                        must include the Docket No. FDA–
                                                removal of uterine fibroids.                                            2016–D–3275 for ‘‘Product Labeling for                                       5630 Fishers Lane, Rm. 1061, Rockville,
                                                DATES: The announcement of the                                          Certain Ultrasonic Surgical Aspirator                                        MD 20852.
                                                guidance is published in the Federal                                    Devices; Guidance for Industry and                                              You may submit comments on any
                                                Register on October 30, 2017.                                           Food and Drug Administration Staff.’’                                        guidance at any time (see 21 CFR
                                                ADDRESSES: You may submit either                                        Received comments will be placed in                                          10.115(g)(5)).
                                                electronic or written comments on                                       the docket and, except for those                                                An electronic copy of the guidance
                                                Agency guidances at any time as                                         submitted as ‘‘Confidential                                                  document is available for download
                                                follows:                                                                Submissions,’’ publicly viewable at                                          from the internet. See the
                                                                                                                        https://www.regulations.gov or at                                            SUPPLEMENTARY INFORMATION section for
                                                Electronic Submissions                                                                                                                               information on electronic access to the
                                                                                                                        Dockets Management Staff between 9
                                                  Submit electronic comments in the                                     a.m. and 4 p.m., Monday through                                              guidance. Submit written requests for a
                                                following way:                                                          Friday.                                                                      single hard copy of the guidance
                                                  • Federal eRulemaking Portal:                                            • Confidential Submissions—To                                             document entitled ‘‘Product Labeling for
                                                https://www.regulations.gov. Follow the                                 submit a comment with confidential                                           Certain Ultrasonic Surgical Aspirator
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                                                instructions for submitting comments.                                   information that you do not wish to be                                       Devices’’ to the Office of the Center
                                                Comments submitted electronically,                                      made publicly available, submit your                                         Director, Guidance and Policy
                                                including attachments, to https://                                      comments only as a written/paper                                             Development, Center for Devices and
                                                www.regulations.gov will be posted to                                   submission. You should submit two                                            Radiological Health, Food and Drug
                                                the docket unchanged. Because your                                      copies total. One copy will include the                                      Administration, 10903 New Hampshire
                                                comment will be made public, you are                                    information you claim to be confidential                                     Ave., Bldg. 66, Rm. 5431, Silver Spring,
                                                solely responsible for ensuring that your                               with a heading or cover note that states                                     MD 20993–0002. Send one self-


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Document Created: 2017-10-28 00:29:13
Document Modified: 2017-10-28 00:29:13
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.
DatesSubmit either electronic or written comments on the draft guidance by December 29, 2017 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
ContactSergio de del Castillo, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1538, Silver Spring, MD 20993-0002, 301-796-6419; 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 Citation82 FR 50135 

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