83_FR_27814 83 FR 27699 - Medical Devices; Immunology and Microbiology Devices; Classification of the Brain Trauma Assessment Test

83 FR 27699 - Medical Devices; Immunology and Microbiology Devices; Classification of the Brain Trauma Assessment Test

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 83, Issue 115 (June 14, 2018)

Page Range27699-27702
FR Document2018-12760

The Food and Drug Administration (FDA or we) is classifying the brain trauma assessment test into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the brain trauma assessment test's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.

Federal Register, Volume 83 Issue 115 (Thursday, June 14, 2018)
[Federal Register Volume 83, Number 115 (Thursday, June 14, 2018)]
[Rules and Regulations]
[Pages 27699-27702]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-12760]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 866

[Docket No. FDA-2018-N-1928]


Medical Devices; Immunology and Microbiology Devices; 
Classification of the Brain Trauma Assessment Test

AGENCY: Food and Drug Administration, HHS.

ACTION: Final order.

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

SUMMARY: The Food and Drug Administration (FDA or we) is classifying 
the brain trauma assessment test into class II (special controls). The 
special controls that apply to the device type are identified in this 
order and will be part of the codified language for the brain trauma 
assessment test's classification. We are taking this action because we 
have determined that classifying the device into class II (special 
controls) will provide a reasonable assurance of safety and 
effectiveness of the device. We believe this action will also enhance 
patients' access to beneficial innovative devices, in part by reducing 
regulatory burdens.

DATES: This order is effective June 14, 2018. The classification was 
applicable on February 14, 2018.

FOR FURTHER INFORMATION CONTACT: Erin Cutts, Center for Devices and 
Radiological Health, Food and Drug

[[Page 27700]]

Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5618, Silver 
Spring, MD 20993-0002, 301-796-6307, erin.cutts@fda.hhs.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Upon request, FDA has classified the brain trauma assessment test 
as class II (special controls), which we have determined will provide a 
reasonable assurance of safety and effectiveness. In addition, we 
believe this action will enhance patients' access to beneficial 
innovation, in part by reducing regulatory burdens by placing the 
device into a lower device class than the automatic class III 
assignment.
    The automatic assignment of class III occurs by operation of law 
and without any action by FDA, regardless of the level of risk posed by 
the new device. Any device 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 (see 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, which amended the 
Federal Food, Drug, and Cosmetic Act (FD&C Act).
    FDA may take a variety of actions in appropriate circumstances to 
classify or reclassify a device into class I or II. We may issue an 
order finding a new device to be substantially equivalent under section 
513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that 
does not require premarket approval. We determine whether a new device 
is substantially equivalent to a predicate by means of the procedures 
for premarket notification under section 510(k) of the FD&C Act (21 
U.S.C. 360(k)) and part 807 (21 CFR part 807).
    FDA may also classify a device through ``De Novo'' classification, 
a common name for the process authorized under section 513(f)(2) of the 
FD&C Act. Section 207 of the Food and Drug Administration Modernization 
Act of 1997 established the first procedure for De Novo classification 
(Pub. L. 105-115). Section 607 of the Food and Drug Administration 
Safety and Innovation Act modified the De Novo application process by 
adding a second procedure (Pub. L. 112-144). A device sponsor may 
utilize either procedure for De Novo classification.
    Under the first procedure, the person submits a 510(k) for a device 
that has not previously been classified. After receiving an order from 
FDA classifying the device into class III under section 513(f)(1) of 
the FD&C Act, the person then requests a classification under section 
513(f)(2).
    Under the second procedure, rather than first submitting a 510(k) 
and then a request for classification, if the person determines that 
there is no legally marketed device upon which to base a determination 
of substantial equivalence, that person requests a classification under 
section 513(f)(2) of the FD&C Act.
    Under either procedure for De Novo classification, FDA shall 
classify the device by written order within 120 days. The 
classification will be according to the criteria under section 
513(a)(1) of the FD&C Act. Although the device was automatically placed 
within class III, the De Novo classification is considered to be the 
initial classification of the device.
    We believe this De Novo classification will enhance 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 process, the device can serve as a predicate for future devices of 
that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a 
result, other device sponsors do not have to submit a De Novo request 
or premarket approval application in order to market a substantially 
equivalent device (see 21 U.S.C. 360c(i), defining ``substantial 
equivalence''). Instead, sponsors can use the less burdensome 510(k) 
process, when necessary, to market their device.

II. De Novo Classification

    On August 28, 2017, Banyan Biomarkers, Inc., submitted a request 
for De Novo classification of the Banyan BTI. FDA reviewed the request 
in order to classify the device under the criteria for classification 
set forth in section 513(a)(1) of the FD&C Act.
    We classify devices into class II if general controls by themselves 
are insufficient to provide reasonable assurance of safety and 
effectiveness, but there is sufficient information to establish special 
controls that, in combination with the general controls, provide 
reasonable assurance of the safety and effectiveness of the device for 
its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the 
information submitted in the request, we determined that the device can 
be classified into class II with the establishment of special controls. 
FDA has determined that these special controls, in addition to the 
general controls, will provide reasonable assurance of the safety and 
effectiveness of the device.
    Therefore, on February 14, 2018, FDA issued an order to the 
requester classifying the device into class II. FDA is codifying the 
classification of the device by adding 21 CFR 866.5830. We have named 
the generic type of device brain trauma assessment test, and it is 
identified as a device that consists of reagents used to detect and 
measure brain injury biomarkers in human specimens. The measurements 
aid in the evaluation of patients with suspected mild traumatic brain 
injury in conjunction with other clinical information to assist in 
determining the need for head imaging per current standard of care.
    FDA has identified the following risks to health associated 
specifically with this type of device and the measures required to 
mitigate these risks in table 1.

   Table 1--Brain Trauma Assessment Test Risks and Mitigation Measures
------------------------------------------------------------------------
            Identified risks                   Mitigation measures
------------------------------------------------------------------------
Inaccurate test results that provide     General controls and special
 false positive or false negative         control (1) (21 CFR
 results.                                 866.5830(b)(1)).
Failure to correctly interpret test      General controls and special
 results can lead to false positive or    control (2) (21 CFR
 false negative results.                  866.5830(b)(2)).
------------------------------------------------------------------------

    FDA has determined that special controls, in combination with the 
general controls, address these risks to health and provide reasonable 
assurance of safety and effectiveness. For a device to fall within this 
classification, and thus avoid automatic classification in class III, 
it would have to comply with the special controls named in this final 
order. The necessary special controls appear in the regulation codified 
by this order. This device is subject to

[[Page 27701]]

premarket notification requirements under section 510(k) of the FD&C 
Act.

III. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) that this action is 
of a type that does not individually or cumulatively have a significant 
effect on the human environment. Therefore, neither an environmental 
assessment nor an environmental impact statement is required.

IV. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer to 
previously approved collections of information found in other FDA 
regulations and guidance. These collections of information are subject 
to review by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections 
of information in the guidance document ``De Novo Classification 
Process (Evaluation of Automatic Class III Designation)'' have been 
approved under OMB control number 0910-0844; the collections of 
information in 21 CFR part 814, subparts A through E, regarding 
premarket approval, have been approved under OMB control number 0910-
0231; the collections of information in part 807, subpart E, regarding 
premarket notification submissions, have been approved under OMB 
control number 0910-0120; and the collections of information in 21 CFR 
parts 801 and 809, regarding labeling, have been approved under OMB 
control number 0910-0485.

List of Subjects in 21 CFR Part 866

    Biologics, Laboratories, Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under 
authority delegated to the Commissioner of Food and Drugs, 21 CFR part 
866 is amended as follows:

PART 866--IMMUNOLOGY AND MICROBIOLOGY DEVICES

0
1. The authority citation for part 866 continues to read as follows:

    Authority: 21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.


0
2. Add Sec.  866.5830 to subpart F to read as follows:


Sec.  866.5830   Brain trauma assessment test.

    (a) Identification. A brain trauma assessment test is a device that 
consists of reagents used to detect and measure brain injury biomarkers 
in human specimens. The measurements aid in the evaluation of patients 
with suspected mild traumatic brain injury in conjunction with other 
clinical information to assist in determining the need for head imaging 
per current standard of care.
    (b) Classification. Class II (special controls). The special 
controls for this device are:
    (1) The 21 CFR 809.10(b) compliant labeling must include detailed 
descriptions of and results from performance testing conducted to 
evaluate precision, accuracy, linearity, analytical sensitivity, 
interference, and cross-reactivity. This information must include the 
following:
    (i) Performance testing of device precision must, at minimum, use 
one unmodified clinical specimen from the intended use population with 
concentration of the brain injury biomarker(s) near the medical 
decision point. Contrived specimens that have been generated from 
pooling of multiple samples or spiking of purified analyte to cover the 
measuring range may be used, but the contrived samples must be prepared 
to mimic clinical specimens as closely as possible. This testing must 
evaluate repeatability and reproducibility using a protocol from an 
FDA-recognized standard.
    (ii) Device performance data must be demonstrated through a 
clinical study and must include the following:
    (A) Data demonstrating clinical validity including the clinical 
sensitivity and specificity, and positive and negative predictive value 
of the test in the intended use population of patients with suspected 
mild traumatic brain injury (i.e., Glasgow Coma Score (GCS) of 13-15), 
or equivalent standard of care for determination of severity of 
traumatic brain injury (TBI).
    (B) Study must be performed using the operators and in settings 
that are representative of the types of operators and settings for 
which the device is intended to be used.
    (C) All eligible subjects must meet the well-defined study 
inclusion and exclusion criteria that define the intended use 
population. The prevalence of diseased or injured subjects in the study 
population must reflect the prevalence of the device's intended use 
population, or alternatively, statistical measures must be used to 
account for any bias due to enrichment of subpopulations of the 
intended use population.
    (D) All eligible subjects must have undergone a head computerized 
tomography (CT) scan or other appropriate clinical diagnostic standard 
used to determine the presence of an intracranial lesion as part of 
standard of care and must also be evaluated by the subject device. All 
clinical diagnostic standards used in the clinical study must follow 
standard clinical practice in the United States.
    (E) Relevant demographic variables and baseline characteristics 
including medical history and neurological history. In addition, head 
injury characteristics, neurological assessments, and physical evidence 
of trauma must be provided for each subject. This information includes 
but is not limited to the following: Time since head injury, time from 
head injury to CT scan, time from head injury to blood draw, GCS score 
or equivalent, experience of loss of consciousness, presence of 
confusion, episodes of vomiting, post-traumatic amnesia 
characteristics, presence of post-traumatic seizures, drug or alcohol 
intoxication, mechanism of injury, acute intracranial lesion type, 
neurosurgical lesion, and cranial fracture.
    (F) Each CT scan or other imaging result must be independently 
evaluated in a blinded manner by at least two board-certified 
radiologists to determine whether it is positive or negative as defined 
by the presence or absence of acute intracranial lesions. This 
independent review must be conducted without access to test results of 
the device. Prior to conducting the review, the criteria and procedures 
to be followed for scoring the images must be established, including 
the mechanism for determining consensus.
    (G) All the clinical samples must be tested with the subject device 
blinded to the TBI status and the neurological-lesion-status of the 
subject.
    (H) Details on how missing values in data are handled must be 
provided.
    (I) For banked clinical samples, details on storage conditions and 
storage period must be provided. In addition, a specimen stability 
study must be conducted for the duration of storage to demonstrate 
integrity of archived clinical samples. The samples evaluated in the 
assay test development must not be used to establish the clinical 
validity of the assays.
    (iii) Performance testing of device analytical specificity must 
include the most commonly reported concomitant medications present in 
specimens from the intended use population. Additionally, potential 
cross-reacting endogenous analytes must be evaluated at the highest 
concentration reported in specimens from the intended use population.
    (iv) Expected/reference values generated by testing a statistically 
appropriate number of samples from apparently healthy normal 
individuals.

[[Page 27702]]

    (2) The 21 CFR 809.10(a) and (b) compliant labeling must include 
the following limitations:
    (i) A limiting statement that this device is not intended to be 
used a stand-alone device but as an adjunct to other clinical 
information to aid in the evaluation of patients who are being 
considered for standard of care neuroimaging.
    (ii) A limiting statement that reads ``A negative result is 
generally associated with the absence of acute intracranial lesions. An 
appropriate neuroimaging method is required for diagnosis of acute 
intracranial lesions.''
    (iii) As applicable, a limiting statement that reads ``This device 
is for use by laboratory professionals in a clinical laboratory 
setting.''

    Dated: June 8, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-12760 Filed 6-13-18; 8:45 am]
 BILLING CODE 4164-01-P



                                                                Federal Register / Vol. 83, No. 115 / Thursday, June 14, 2018 / Rules and Regulations                                               27699

                                             including the limitation imposed on the                 § 725.717 What are the time limitations for            may be achieved through a program of
                                             amount to be paid.                                      requesting payment or reimbursement for                re-evaluation and redirection of the
                                                                                                     covered medical services or treatments?                miner’s abilities, or retraining in another
                                             § 725.716 How should a miner prepare and                   OWCP will pay providers and                         occupation, and selective job placement
                                             submit requests for reimbursement for                   reimburse miners promptly for all bills                assistance.
                                             covered medical expenses and                            received on an approved form and in a
                                             transportation costs?                                                                                          § 725.720 How does a miner request
                                                                                                     timely manner. However, absent good
                                                                                                     cause, no bill will be paid for expenses               vocational rehabilitation assistance?
                                                (a) If a miner has paid bills for a
                                             medical service or treatment covered                    incurred if the bill is submitted more                   Each miner who has been determined
                                             under § 725.701 and seeks                               than one year beyond the end of the                    entitled to receive benefits under part C
                                             reimbursement for those expenses, he or                 calendar year in which the expense was                 of title IV of the Act must be informed
                                             she may submit a request for                            incurred or the service or supply was                  by OWCP of the availability and
                                             reimbursement on Form OWCP–915,                         provided, or more than one year beyond                 advisability of vocational rehabilitation
                                             together with an itemized bill. The                     the end of the calendar year in which                  services. If such miner chooses to avail
                                             reimbursement request must be                           the miner’s eligibility for benefits is                himself or herself of vocational
                                                                                                     finally adjudicated, whichever is later.               rehabilitation, his or her request will be
                                             accompanied by evidence that the
                                                                                                     A provider may not request                             processed and referred by OWCP
                                             provider received payment for the
                                                                                                     reimbursement from a miner for a bill                  vocational rehabilitation advisors
                                             service from the miner and a statement
                                                                                                     denied by OWCP due to late submission                  pursuant to the provisions of §§ 702.501
                                             of the amount paid. Acceptable
                                                                                                     of the bill by the provider.                           through 702.508 of this chapter as is
                                             evidence that payment was received
                                                                                                                                                            appropriate.
                                             includes, but is not limited to, a copy                 § 725.718 How are disputes concerning
                                             of the miner’s canceled check (both                                                                              Dated: June 5, 2018.
                                                                                                     medical benefits resolved?
                                             front and back) or a copy of the miner’s                                                                       Julia K. Hearthway,
                                                                                                        (a) If a dispute develops concerning
                                             credit card receipt.                                    medical services or treatments or their                Director, Office of Workers’ Compensation
                                                                                                                                                            Programs.
                                                (b) OWCP may waive the                               payment under this part, OWCP must
                                                                                                                                                            [FR Doc. 2018–12418 Filed 6–13–18; 8:45 am]
                                             requirements of paragraph (a) of this                   attempt to informally resolve the
                                             section if extensive delays in the filing               dispute. OWCP may, on its own                          BILLING CODE 4510–CR–P

                                             or the adjudication of a claim make it                  initiative or at the request of the
                                             unusually difficult for the miner to                    responsible operator or its insurance
                                             obtain the required information.                        carrier, order the claimant to submit to               DEPARTMENT OF HEALTH AND
                                                                                                     an examination by a physician selected                 HUMAN SERVICES
                                                (c) Reimbursements for covered
                                             medical services paid by a miner                        by OWCP.
                                                                                                        (b) If a dispute cannot be resolved                 Food and Drug Administration
                                             generally will be no greater than the
                                             maximum allowable charge for such                       informally, OWCP will refer the case to
                                                                                                     the Office of Administrative Law Judges                21 CFR Part 866
                                             service as determined under
                                             §§ 725.707–725.711.                                     for a hearing in accordance with this                  [Docket No. FDA–2018–N–1928]
                                                                                                     part. Any such hearing concerning
                                                (d) A miner will be only partially                   authorization of medical services or                   Medical Devices; Immunology and
                                             reimbursed for a covered medical                        treatments must be scheduled at the                    Microbiology Devices; Classification of
                                             service if the amount he or she paid to                 earliest possible time and must take                   the Brain Trauma Assessment Test
                                             a provider for the service exceeds the                  precedence over all other hearing
                                             maximum charge allowable. If this                                                                              AGENCY:   Food and Drug Administration,
                                                                                                     requests except for other requests under               HHS.
                                             happens, OWCP will advise the miner                     this section and as provided by
                                             of the maximum allowable charge for                     § 727.405 of this subchapter (see                      ACTION:   Final order.
                                             the service in question and of his or her               § 725.4(d)). During the pendency of such               SUMMARY:    The Food and Drug
                                             responsibility to ask the provider to                   adjudication, OWCP may order the                       Administration (FDA or we) is
                                             refund to the miner, or credit to the                   payment of medical benefits prior to                   classifying the brain trauma assessment
                                             miner’s account, the amount he or she                   final adjudication under the same                      test into class II (special controls). The
                                             paid which exceeds the maximum                          conditions applicable to benefits                      special controls that apply to the device
                                             allowable charge.                                       awarded under § 725.522.                               type are identified in this order and will
                                                (e) If the provider does not refund to                  (c) In the development or adjudication              be part of the codified language for the
                                             the miner or credit to his or her account               of a dispute over medical benefits, the                brain trauma assessment test’s
                                             the amount of money paid in excess of                   adjudication officer is authorized to take             classification. We are taking this action
                                             the charge allowed by OWCP, the miner                   whatever action may be necessary to                    because we have determined that
                                             should submit documentation to OWCP                     protect the health of a totally disabled               classifying the device into class II
                                             of the attempt to obtain such refund or                 miner.                                                 (special controls) will provide a
                                             credit. OWCP may make reasonable                           (d) Any interested medical provider                 reasonable assurance of safety and
                                             reimbursement to the miner after                        may, if appropriate, be made a party to                effectiveness of the device. We believe
                                             reviewing the facts and circumstances of                a dispute under this subpart.                          this action will also enhance patients’
                                             the case.                                               § 725.719 What is the objective of                     access to beneficial innovative devices,
                                                (f) If a miner has paid transportation               vocational rehabilitation?                             in part by reducing regulatory burdens.
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                                             costs or other incidental expenses                        The objective of vocational                          DATES: This order is effective June 14,
                                             related to covered medical services                     rehabilitation is the return of a miner                2018. The classification was applicable
                                             under this part, the miner may submit                   who is totally disabled by                             on February 14, 2018.
                                             a request for reimbursement on Form                     pneumoconiosis to gainful employment                   FOR FURTHER INFORMATION CONTACT: Erin
                                             OWCP–957 or OWCP–915, together                          commensurate with such miner’s                         Cutts, Center for Devices and
                                             with proof of payment.                                  physical impairment. This objective                    Radiological Health, Food and Drug


                                        VerDate Sep<11>2014   15:55 Jun 13, 2018   Jkt 244001   PO 00000   Frm 00019   Fmt 4700   Sfmt 4700   E:\FR\FM\14JNR1.SGM   14JNR1


                                             27700              Federal Register / Vol. 83, No. 115 / Thursday, June 14, 2018 / Rules and Regulations

                                             Administration, 10903 New Hampshire                     FD&C Act. Section 207 of the Food and                  the less burdensome 510(k) process,
                                             Ave., Bldg. 66, Rm. 5618, Silver Spring,                Drug Administration Modernization Act                  when necessary, to market their device.
                                             MD 20993–0002, 301–796–6307,                            of 1997 established the first procedure
                                                                                                                                                            II. De Novo Classification
                                             erin.cutts@fda.hhs.gov.                                 for De Novo classification (Pub. L. 105–
                                             SUPPLEMENTARY INFORMATION:                              115). Section 607 of the Food and Drug                    On August 28, 2017, Banyan
                                                                                                     Administration Safety and Innovation                   Biomarkers, Inc., submitted a request for
                                             I. Background                                           Act modified the De Novo application                   De Novo classification of the Banyan
                                                Upon request, FDA has classified the                 process by adding a second procedure                   BTI. FDA reviewed the request in order
                                             brain trauma assessment test as class II                (Pub. L. 112–144). A device sponsor                    to classify the device under the criteria
                                             (special controls), which we have                       may utilize either procedure for De                    for classification set forth in section
                                             determined will provide a reasonable                    Novo classification.                                   513(a)(1) of the FD&C Act.
                                             assurance of safety and effectiveness. In                  Under the first procedure, the person                  We classify devices into class II if
                                             addition, we believe this action will                   submits a 510(k) for a device that has                 general controls by themselves are
                                             enhance patients’ access to beneficial                  not previously been classified. After                  insufficient to provide reasonable
                                             innovation, in part by reducing                         receiving an order from FDA classifying                assurance of safety and effectiveness,
                                             regulatory burdens by placing the                       the device into class III under section                but there is sufficient information to
                                             device into a lower device class than the               513(f)(1) of the FD&C Act, the person                  establish special controls that, in
                                             automatic class III assignment.                         then requests a classification under                   combination with the general controls,
                                                The automatic assignment of class III                section 513(f)(2).                                     provide reasonable assurance of the
                                             occurs by operation of law and without                                                                         safety and effectiveness of the device for
                                                                                                        Under the second procedure, rather
                                             any action by FDA, regardless of the                                                                           its intended use (see 21 U.S.C.
                                                                                                     than first submitting a 510(k) and then
                                             level of risk posed by the new device.                                                                         360c(a)(1)(B)). After review of the
                                                                                                     a request for classification, if the person
                                             Any device that was not in commercial                                                                          information submitted in the request,
                                                                                                     determines that there is no legally
                                             distribution before May 28, 1976, is
                                                                                                     marketed device upon which to base a                   we determined that the device can be
                                             automatically classified as, and remains
                                                                                                     determination of substantial                           classified into class II with the
                                             within, class III and requires premarket
                                                                                                     equivalence, that person requests a                    establishment of special controls. FDA
                                             approval unless and until FDA takes an
                                                                                                     classification under section 513(f)(2) of              has determined that these special
                                             action to classify or reclassify the device
                                                                                                     the FD&C Act.                                          controls, in addition to the general
                                             (see 21 U.S.C. 360c(f)(1)). We refer to
                                                                                                        Under either procedure for De Novo                  controls, will provide reasonable
                                             these devices as ‘‘postamendments
                                                                                                     classification, FDA shall classify the                 assurance of the safety and effectiveness
                                             devices’’ because they were not in
                                                                                                     device by written order within 120 days.               of the device.
                                             commercial distribution prior to the
                                             date of enactment of the Medical Device                 The classification will be according to                   Therefore, on February 14, 2018, FDA
                                             Amendments of 1976, which amended                       the criteria under section 513(a)(1) of                issued an order to the requester
                                             the Federal Food, Drug, and Cosmetic                    the FD&C Act. Although the device was                  classifying the device into class II. FDA
                                             Act (FD&C Act).                                         automatically placed within class III,                 is codifying the classification of the
                                                FDA may take a variety of actions in                 the De Novo classification is considered               device by adding 21 CFR 866.5830. We
                                             appropriate circumstances to classify or                to be the initial classification of the                have named the generic type of device
                                             reclassify a device into class I or II. We              device.                                                brain trauma assessment test, and it is
                                             may issue an order finding a new device                    We believe this De Novo classification              identified as a device that consists of
                                             to be substantially equivalent under                    will enhance patients’ access to                       reagents used to detect and measure
                                             section 513(i) of the FD&C Act (21                      beneficial innovation, in part by                      brain injury biomarkers in human
                                             U.S.C. 360c(i)) to a predicate device that              reducing regulatory burdens. When FDA                  specimens. The measurements aid in
                                             does not require premarket approval.                    classifies a device into class I or II via             the evaluation of patients with
                                             We determine whether a new device is                    the De Novo process, the device can                    suspected mild traumatic brain injury in
                                             substantially equivalent to a predicate                 serve as a predicate for future devices of             conjunction with other clinical
                                             by means of the procedures for                          that type, including for 510(k)s (see 21               information to assist in determining the
                                             premarket notification under section                    U.S.C. 360c(f)(2)(B)(i)). As a result, other           need for head imaging per current
                                             510(k) of the FD&C Act (21 U.S.C.                       device sponsors do not have to submit                  standard of care.
                                             360(k)) and part 807 (21 CFR part 807).                 a De Novo request or premarket                            FDA has identified the following risks
                                                FDA may also classify a device                       approval application in order to market                to health associated specifically with
                                             through ‘‘De Novo’’ classification, a                   a substantially equivalent device (see 21              this type of device and the measures
                                             common name for the process                             U.S.C. 360c(i), defining ‘‘substantial                 required to mitigate these risks in
                                             authorized under section 513(f)(2) of the               equivalence’’). Instead, sponsors can use              table 1.

                                                                        TABLE 1—BRAIN TRAUMA ASSESSMENT TEST RISKS AND MITIGATION MEASURES
                                                                             Identified risks                                                                Mitigation measures

                                             Inaccurate test results that provide false positive or false negative re-            General controls and special control (1) (21 CFR 866.5830(b)(1)).
                                               sults.
                                             Failure to correctly interpret test results can lead to false positive or            General controls and special control (2) (21 CFR 866.5830(b)(2)).
                                               false negative results.
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                                               FDA has determined that special                       of safety and effectiveness. For a device              the special controls named in this final
                                             controls, in combination with the                       to fall within this classification, and                order. The necessary special controls
                                             general controls, address these risks to                thus avoid automatic classification in                 appear in the regulation codified by this
                                             health and provide reasonable assurance                 class III, it would have to comply with                order. This device is subject to



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                                                                  Federal Register / Vol. 83, No. 115 / Thursday, June 14, 2018 / Rules and Regulations                                         27701

                                             premarket notification requirements                       suspected mild traumatic brain injury in               subject device. All clinical diagnostic
                                             under section 510(k) of the FD&C Act.                     conjunction with other clinical                        standards used in the clinical study
                                                                                                       information to assist in determining the               must follow standard clinical practice in
                                             III. Analysis of Environmental Impact
                                                                                                       need for head imaging per current                      the United States.
                                                The Agency has determined under 21                     standard of care.                                         (E) Relevant demographic variables
                                             CFR 25.34(b) that this action is of a type                   (b) Classification. Class II (special               and baseline characteristics including
                                             that does not individually or                             controls). The special controls for this               medical history and neurological
                                             cumulatively have a significant effect on                 device are:                                            history. In addition, head injury
                                             the human environment. Therefore,                            (1) The 21 CFR 809.10(b) compliant                  characteristics, neurological
                                             neither an environmental assessment                       labeling must include detailed                         assessments, and physical evidence of
                                             nor an environmental impact statement                     descriptions of and results from                       trauma must be provided for each
                                             is required.                                              performance testing conducted to                       subject. This information includes but is
                                                                                                       evaluate precision, accuracy, linearity,               not limited to the following: Time since
                                             IV. Paperwork Reduction Act of 1995
                                                                                                       analytical sensitivity, interference, and              head injury, time from head injury to CT
                                               This final order establishes special                    cross-reactivity. This information must                scan, time from head injury to blood
                                             controls that refer to previously                         include the following:                                 draw, GCS score or equivalent,
                                             approved collections of information                          (i) Performance testing of device                   experience of loss of consciousness,
                                             found in other FDA regulations and                        precision must, at minimum, use one                    presence of confusion, episodes of
                                             guidance. These collections of                            unmodified clinical specimen from the                  vomiting, post-traumatic amnesia
                                             information are subject to review by the                  intended use population with                           characteristics, presence of post-
                                             Office of Management and Budget                           concentration of the brain injury                      traumatic seizures, drug or alcohol
                                             (OMB) under the Paperwork Reduction                       biomarker(s) near the medical decision                 intoxication, mechanism of injury, acute
                                             Act of 1995 (44 U.S.C. 3501–3520). The                    point. Contrived specimens that have                   intracranial lesion type, neurosurgical
                                             collections of information in the                         been generated from pooling of multiple                lesion, and cranial fracture.
                                             guidance document ‘‘De Novo                               samples or spiking of purified analyte to
                                                                                                                                                                 (F) Each CT scan or other imaging
                                             Classification Process (Evaluation of                     cover the measuring range may be used,
                                                                                                                                                              result must be independently evaluated
                                             Automatic Class III Designation)’’ have                   but the contrived samples must be
                                                                                                                                                              in a blinded manner by at least two
                                             been approved under OMB control                           prepared to mimic clinical specimens as
                                                                                                                                                              board-certified radiologists to determine
                                             number 0910–0844; the collections of                      closely as possible. This testing must
                                                                                                                                                              whether it is positive or negative as
                                             information in 21 CFR part 814,                           evaluate repeatability and
                                                                                                                                                              defined by the presence or absence of
                                             subparts A through E, regarding                           reproducibility using a protocol from an
                                                                                                                                                              acute intracranial lesions. This
                                             premarket approval, have been                             FDA-recognized standard.
                                                                                                                                                              independent review must be conducted
                                             approved under OMB control number                            (ii) Device performance data must be
                                                                                                                                                              without access to test results of the
                                             0910–0231; the collections of                             demonstrated through a clinical study
                                                                                                                                                              device. Prior to conducting the review,
                                             information in part 807, subpart E,                       and must include the following:
                                                                                                          (A) Data demonstrating clinical                     the criteria and procedures to be
                                             regarding premarket notification
                                                                                                       validity including the clinical                        followed for scoring the images must be
                                             submissions, have been approved under
                                                                                                       sensitivity and specificity, and positive              established, including the mechanism
                                             OMB control number 0910–0120; and
                                                                                                       and negative predictive value of the test              for determining consensus.
                                             the collections of information in 21 CFR
                                                                                                       in the intended use population of                         (G) All the clinical samples must be
                                             parts 801 and 809, regarding labeling,
                                                                                                       patients with suspected mild traumatic                 tested with the subject device blinded to
                                             have been approved under OMB control
                                                                                                       brain injury (i.e., Glasgow Coma Score                 the TBI status and the neurological-
                                             number 0910–0485.
                                                                                                       (GCS) of 13–15), or equivalent standard                lesion-status of the subject.
                                             List of Subjects in 21 CFR Part 866                       of care for determination of severity of                  (H) Details on how missing values in
                                               Biologics, Laboratories, Medical                        traumatic brain injury (TBI).                          data are handled must be provided.
                                             devices.                                                     (B) Study must be performed using                      (I) For banked clinical samples,
                                               Therefore, under the Federal Food,                      the operators and in settings that are                 details on storage conditions and storage
                                             Drug, and Cosmetic Act and under                          representative of the types of operators               period must be provided. In addition, a
                                             authority delegated to the Commissioner                   and settings for which the device is                   specimen stability study must be
                                             of Food and Drugs, 21 CFR part 866 is                     intended to be used.                                   conducted for the duration of storage to
                                             amended as follows:                                          (C) All eligible subjects must meet the             demonstrate integrity of archived
                                                                                                       well-defined study inclusion and                       clinical samples. The samples evaluated
                                             PART 866—IMMUNOLOGY AND                                   exclusion criteria that define the                     in the assay test development must not
                                             MICROBIOLOGY DEVICES                                      intended use population. The                           be used to establish the clinical validity
                                                                                                       prevalence of diseased or injured                      of the assays.
                                             ■ 1. The authority citation for part 866                  subjects in the study population must                     (iii) Performance testing of device
                                             continues to read as follows:                             reflect the prevalence of the device’s                 analytical specificity must include the
                                               Authority: 21 U.S.C. 351, 360, 360c, 360e,              intended use population, or                            most commonly reported concomitant
                                             360j, 360l, 371.                                          alternatively, statistical measures must               medications present in specimens from
                                             ■ 2. Add § 866.5830 to subpart F to read                  be used to account for any bias due to                 the intended use population.
                                             as follows:                                               enrichment of subpopulations of the                    Additionally, potential cross-reacting
                                                                                                       intended use population.                               endogenous analytes must be evaluated
                                             § 866.5830       Brain trauma assessment test.               (D) All eligible subjects must have                 at the highest concentration reported in
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                                               (a) Identification. A brain trauma                      undergone a head computerized                          specimens from the intended use
                                             assessment test is a device that consists                 tomography (CT) scan or other                          population.
                                             of reagents used to detect and measure                    appropriate clinical diagnostic standard                  (iv) Expected/reference values
                                             brain injury biomarkers in human                          used to determine the presence of an                   generated by testing a statistically
                                             specimens. The measurements aid in                        intracranial lesion as part of standard of             appropriate number of samples from
                                             the evaluation of patients with                           care and must also be evaluated by the                 apparently healthy normal individuals.


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                                             27702              Federal Register / Vol. 83, No. 115 / Thursday, June 14, 2018 / Rules and Regulations

                                                (2) The 21 CFR 809.10(a) and (b)                     Administration, 10903 New Hampshire                    receiving an order from FDA classifying
                                             compliant labeling must include the                     Ave., Bldg. 66, Rm. G223, Silver Spring,               the device into class III under section
                                             following limitations:                                  MD 20993–0002, 240–402–9979,                           513(f)(1) of the FD&C Act, the person
                                                (i) A limiting statement that this                   Purva.Pandya@fda.hhs.gov.                              then requests a classification under
                                             device is not intended to be used a                     SUPPLEMENTARY INFORMATION:                             section 513(f)(2).
                                             stand-alone device but as an adjunct to                                                                           Under the second procedure, rather
                                             other clinical information to aid in the                I. Background
                                                                                                                                                            than first submitting a 510(k) and then
                                             evaluation of patients who are being                       Upon request, FDA has classified the                a request for classification, if the person
                                             considered for standard of care                         endoscopic electrosurgical clip cutting                determines that there is no legally
                                             neuroimaging.                                           system as class II (special controls),                 marketed device upon which to base a
                                                (ii) A limiting statement that reads ‘‘A             which we have determined will provide                  determination of substantial
                                             negative result is generally associated                 a reasonable assurance of safety and                   equivalence, that person requests a
                                             with the absence of acute intracranial                  effectiveness. In addition, we believe                 classification under section 513(f)(2) of
                                             lesions. An appropriate neuroimaging                    this action will enhance patients’ access              the FD&C Act.
                                             method is required for diagnosis of                     to beneficial innovation, in part by                      Under either procedure for De Novo
                                             acute intracranial lesions.’’                           reducing regulatory burdens by placing                 classification, FDA shall classify the
                                                (iii) As applicable, a limiting                      the device into a lower device class than              device by written order within 120 days.
                                             statement that reads ‘‘This device is for               the automatic class III assignment.                    The classification will be according to
                                             use by laboratory professionals in a                       The automatic assignment of class III               the criteria under section 513(a)(1) of
                                             clinical laboratory setting.’’                          occurs by operation of law and without                 the FD&C Act. Although the device was
                                                                                                     any action by FDA, regardless of the                   automatically within class III, the De
                                               Dated: June 8, 2018.
                                                                                                     level of risk posed by the new device.                 Novo classification is considered to be
                                             Leslie Kux,                                             Any device that was not in commercial
                                             Associate Commissioner for Policy.                                                                             the initial classification of the device.
                                                                                                     distribution before May 28, 1976, is
                                             [FR Doc. 2018–12760 Filed 6–13–18; 8:45 am]                                                                       We believe this De Novo classification
                                                                                                     automatically classified as, and remains
                                                                                                                                                            will enhance patients’ access to
                                             BILLING CODE 4164–01–P                                  within, class III and requires premarket
                                                                                                                                                            beneficial innovation, in part by
                                                                                                     approval unless and until FDA takes an
                                                                                                     action to classify or reclassify the device            reducing regulatory burdens. When FDA
                                             DEPARTMENT OF HEALTH AND                                (see 21 U.S.C. 360c(f)(1)). We refer to                classifies a device into class I or II via
                                             HUMAN SERVICES                                          these devices as ‘‘postamendments                      the De Novo process, the device can
                                                                                                     devices’’ because they were not in                     serve as a predicate for future devices of
                                             Food and Drug Administration                            commercial distribution prior to the                   that type, including for 510(k)s. As a
                                                                                                     date of enactment of the Medical Device                result, other device sponsors do not
                                             21 CFR Part 876                                         Amendments of 1976, which amended                      have to submit a De Novo request or
                                                                                                     the Federal Food, Drug, and Cosmetic                   PMA in order to market a substantially
                                             [Docket No. FDA–2018–N–1862]
                                                                                                     Act (FD&C Act).                                        equivalent device (see 21 U.S.C. 360c(i),
                                             Medical Devices; Gastroenterology-                         FDA may take a variety of actions in                defining ‘‘substantial equivalence’’).
                                             Urology Devices; Classification of the                  appropriate circumstances to classify or               Instead, sponsors can use the less-
                                             Endoscopic Electrosurgical Clip                         reclassify a device into class I or II. We             burdensome 510(k) process, when
                                             Cutting System                                          may issue an order finding a new device                necessary, to market their device.
                                                                                                     to be substantially equivalent under                   II. De Novo Classification
                                             AGENCY:    Food and Drug Administration,                section 513(i) of the FD&C Act to a
                                             HHS.                                                    predicate device that does not require                    On April 11, 2016, Ovesco Endoscopy
                                             ACTION:   Final order.                                  premarket approval (see 21 U.S.C.                      AG submitted a request for De Novo
                                                                                                     360c(i)). We determine whether a new                   classification of the remOVE System.
                                             SUMMARY:    The Food and Drug                                                                                  FDA reviewed the request in order to
                                                                                                     device is substantially equivalent to a
                                             Administration (FDA or we) is                                                                                  classify the device under the criteria for
                                                                                                     predicate by means of the procedures
                                             classifying the endoscopic                                                                                     classification set forth in section
                                                                                                     for premarket notification under section
                                             electrosurgical clip cutting system into                                                                       513(a)(1) of the FD&C Act.
                                                                                                     510(k) of the FD&C Act (21 U.S.C.
                                             class II (special controls). The special                                                                          We classify devices into class II if
                                                                                                     360(k)) and part 807 (21 CFR part 807),
                                             controls that apply to the device type                                                                         general controls by themselves are
                                                                                                     respectively).
                                             are identified in this order and will be                   FDA may also classify a device                      insufficient to provide reasonable
                                             part of the codified language for the                   through ‘‘De Novo’’ classification, a                  assurance of safety and effectiveness,
                                             endoscopic electrosurgical clip cutting                 common name for the process                            but there is sufficient information to
                                             system’s classification. We are taking                  authorized under section 513(f)(2) of the              establish special controls that, in
                                             this action because we have determined                  FD&C Act. Section 207 of the Food and                  combination with the general controls,
                                             that classifying the device into class II               Drug Administration Modernization Act                  provide reasonable assurance of the
                                             (special controls) will provide a                       of 1997 established the first procedure                safety and effectiveness of the device for
                                             reasonable assurance of safety and                      for De Novo classification (Pub. L. 105–               its intended use (see 21 U.S.C.
                                             effectiveness of the device. We believe                 115). Section 607 of the Food and Drug                 360c(a)(1)(B)). After review of the
                                             this action will also enhance patients’                 Administration Safety and Innovation                   information submitted in the request,
                                             access to beneficial innovative devices,                Act modified the De Novo application                   we determined that the device can be
                                             in part by reducing regulatory burdens.                                                                        classified into class II with the
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                                                                                                     process by adding a second procedure
                                             DATES: This order is effective June 14,                 (Pub. L. 112–144). A device sponsor                    establishment of special controls. FDA
                                             2018. The classification was applicable                 may utilize either procedure for De                    has determined that these special
                                             on December 22, 2017.                                   Novo classification.                                   controls, in addition to the general
                                             FOR FURTHER INFORMATION CONTACT:                           Under the first procedure, the person               controls, will provide reasonable
                                             Purva Pandya, Center for Devices and                    submits a 510(k) for a device that has                 assurance of the safety and effectiveness
                                             Radiological Health, Food and Drug                      not previously been classified. After                  of the device.


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Document Created: 2018-06-14 01:38:53
Document Modified: 2018-06-14 01:38:53
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 June 14, 2018. The classification was applicable on February 14, 2018.
ContactErin Cutts, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5618, Silver Spring, MD 20993-0002, 301-796-6307, [email protected]
FR Citation83 FR 27699 
CFR AssociatedBiologics; Laboratories and Medical Devices

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