83_FR_41183 83 FR 41023 - Medical Devices; Classification of Accessories Distinct From Other Devices; Proposed List of Accessories Suitable for Class I; Request for Comments

83 FR 41023 - Medical Devices; Classification of Accessories Distinct From Other Devices; Proposed List of Accessories Suitable for Class I; Request for Comments

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 83, Issue 160 (August 17, 2018)

Page Range41023-41026
FR Document2018-17731

As required by the FDA Reauthorization Act of 2017 (FDARA), the Food and Drug Administration (FDA or Agency) has identified a list of accessories for which the Agency believes general controls alone are sufficient to provide reasonable assurance of safety and effectiveness, so the accessories could be in class I. FDA is publishing this document proposing to classify these accessories into class I and distinct from other devices, as well as seek public comment in accordance with procedures established by FDARA. This document does not represent FDA's final determination with respect to the proposed accessories listed in this document.

Federal Register, Volume 83 Issue 160 (Friday, August 17, 2018)
[Federal Register Volume 83, Number 160 (Friday, August 17, 2018)]
[Proposed Rules]
[Pages 41023-41026]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-17731]



[[Page 41023]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Parts 876, 878, and 886

[Docket No. FDA-2018-N-3066]


Medical Devices; Classification of Accessories Distinct From 
Other Devices; Proposed List of Accessories Suitable for Class I; 
Request for Comments

AGENCY: Food and Drug Administration, HHS.

ACTION: Notification; request for comments.

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

SUMMARY: As required by the FDA Reauthorization Act of 2017 (FDARA), 
the Food and Drug Administration (FDA or Agency) has identified a list 
of accessories for which the Agency believes general controls alone are 
sufficient to provide reasonable assurance of safety and effectiveness, 
so the accessories could be in class I. FDA is publishing this document 
proposing to classify these accessories into class I and distinct from 
other devices, as well as seek public comment in accordance with 
procedures established by FDARA. This document does not represent FDA's 
final determination with respect to the proposed accessories listed in 
this document.

DATES: Submit either electronic or written comments on the document by 
October 16, 2018.

ADDRESSES: You may submit comments as follows. Please note that late, 
untimely filed comments will not be considered. Electronic comments 
must be submitted on or before October 16, 2018 The https://www.regulations.gov electronic filing system will accept comments until 
midnight Eastern Time at the end of October 16, 2018. Comments received 
by mail/hand delivery/courier (for written/paper submissions) will be 
considered timely if they are postmarked or the delivery service 
acceptance receipt is on or before that date.

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-2018-N-3066 for ``Medical Devices; Classification of Accessories 
Distinct from Other Devices; Proposed List of Accessories Suitable for 
Class I; Request for Comments.'' Received comments will be placed in 
the docket and, except for those submitted as ``Confidential 
Submissions,'' publicly viewable at https://www.regulations.gov or at 
the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through 
Friday.
     Confidential Submissions--To submit a comment with 
confidential information that you do not wish to be made publicly 
available, submit your comments only as a written/paper submission. You 
should submit two copies total. One copy will include the information 
you claim to be confidential with a heading or cover note that states 
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will 
review this copy, including the claimed confidential information, in 
its consideration of comments. The second copy, which will have the 
claimed confidential information redacted/blacked out, will be 
available for public viewing and posted on https://www.regulations.gov. 
Submit both copies to the Dockets Management Staff. If you do not wish 
your name and contact information to be made publicly available, you 
can provide this information on the cover sheet and not in the body of 
your comments and you must identify this information as 
``confidential.'' Any information marked as ``confidential'' will not 
be disclosed except in accordance with 21 CFR 10.20 and other 
applicable disclosure law. For more information about FDA's posting of 
comments to public dockets, see 80 FR 56469, September 18, 2015, or 
access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or 
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in 
the heading of this document, into the ``Search'' box and follow the 
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, 
Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Ian Ostermiller, Center for Devices 
and Radiological Health, Food and Drug Administration, 10903 New 
Hampshire Ave., Bldg. 66, Rm. 5454, Silver Spring, MD 20993-0002, 301-
796-5678.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 18, 2017, FDARA was signed into law (Pub. L. 115-52). 
Section 707 of FDARA amended section 513(f) of the Federal Food, Drug, 
and Cosmetic Act (FD&C Act) and, among other amendments, created a 
process for FDA to propose a list of accessories suitable for distinct 
classification into class I (see section 513(f)(6)(D)(i) of the FD&C 
Act (21 U.S.C. 360c(f)(6)(D)(i))). Section 707 of FDARA mandated that 
FDA make the first such proposal within a year of enactment of FDARA, 
and FDA is publishing this document in accordance with this statutory 
mandate.
    Section 201(h) of the FD&C Act defines ``device'' to include, among 
other articles, an ``accessory'' (see 21 U.S.C. 321(h)). As such, all 
articles that meet the definition of ``device'', including accessories, 
are regulated under the FD&C Act. Based on sections 201(h) and 
513(f)(6) of the FD&C Act, we have described our current thinking on 
which devices we would generally consider to be accessories in the 
guidance document, ``Medical Device Accessories--Describing Accessories 
and Classification Pathways,'' available at https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/UCM429672 
(``Accessories Guidance''). That

[[Page 41024]]

guidance defines an accessory as a ``finished device that is intended 
to support, supplement, and/or augment the performance of one or more 
parent devices.''
    Section 513 of the FD&C Act defines three classes of devices, 
reflecting the regulatory controls needed to provide reasonable 
assurance of their safety and effectiveness. The three classes of 
devices are class I (general controls), class II (special controls), 
and class III (premarket approval). Some accessories may be granted 
marketing authorization as part of a submission for another device with 
which they are intended to be used and in class II or III that, if 
considered distinctly from another device (such as the parent device), 
may be suitable for classification into class I if general controls 
alone are sufficient to provide a reasonable assurance of safety and 
effectiveness of the accessory.
    Section 513(h)(1) defines general controls as the controls 
authorized by or under sections 501, 502, 510, 516, 518, 519, and 520 
of the FD&C Act. These controls include, but are not limited to, 
provisions related to adulteration and misbranding, registration and 
listing, records and reports on devices, and good manufacturing 
practices. The regulations for good manufacturing practices are under 
21 CFR part 820, the Quality System regulation. Subject to the 
exceptions identified in Sec.  820.30(a)(2) (21 CFR 820.30(a)(2)) for 
specific devices and those automated with computer software, design 
controls under Sec.  820.30 do not generally apply to a class I device.
    This document represents FDA's compliance with FDARA's requirement 
to identify the first list of accessories suitable for distinct 
classification into class I. As required by FDARA, we are providing you 
with the opportunity to provide comment. Once the comment period ends, 
we will consider the comments and publish in the Federal Register a 
final action classifying such suitable accessories into class I.

II. Factors for Consideration

    The classification of each accessory will be based on the risks of 
the accessory when used as intended and the level of regulatory 
controls necessary to provide a reasonable assurance of safety and 
effectiveness of the accessory, notwithstanding the classification of 
any other device with which such accessory is intended to be used (see 
section 513(f)(6)(A) of the FD&C Act).
    In general, we considered an accessory to be eligible for 
classification into class I distinct from another device if the 
accessory: (1) Is not for use in supporting or sustaining human life, 
or of substantial importance in preventing impairment to human health; 
(2) does not represent a potential unreasonable risk of illness or 
injury; and (3) general controls alone would be sufficient to provide a 
reasonable assurance of safety and effectiveness of the accessory.
    Note that by regulation, design controls apply to class I devices 
only if the devices are automated with computer software or are listed 
under Sec.  820.30(a)(2)(ii). Thus, if an accessory is not automated 
with computer software but would require design controls to provide 
reasonable assurance of safety and effectiveness, we did not consider 
it eligible for classification through the final action based on this 
document.
    You may wish to propose additional accessories as suitable for 
distinct classification into class I using the factors described above 
where the accessories are otherwise eligible for classification under 
section 513(f)(6)(D)(i) of the FD&C Act. Should you wish to propose 
additional accessories, your comment should briefly explain why you 
think general controls alone will provide reasonable assurance of 
safety and effectiveness. Conversely, should you disagree with any of 
the proposed accessories for class I, your comments should briefly 
explain why additional regulatory controls, such as premarket review 
through a 510(k) submission or premarket approval (PMA), are necessary 
to provide reasonable assurance of safety and effectiveness.

III. Policy Clarification for Classification of Certain Accessories 
Used in Orthopedic Surgery

    Certain manual orthopedic instruments that are for use with other 
devices in orthopedic surgery meet FDA's definition of an accessory 
described in the Accessories Guidance. Accordingly, we are clarifying 
our intended regulatory approach for certain accessories used in 
orthopedic surgery to distinguish which accessories may be candidates 
for classification per section 513(f)(6)(D)(i) of the FD&C Act.
    Instruments for use in orthopedic surgery vary widely from general 
manual surgical instruments used to manipulate tissue to more complex 
accessories specifically designed for use with a parent device/system. 
Orthopedic manual surgical instruments are classified in Sec.  888.4540 
(21 CFR 888.4540), and many ``general use'' instruments fall within 
this classification. This regulation pertains to ``nonpowered hand-held 
device[s] intended for medical purposes to manipulate tissue, or for 
use with other devices in orthopedic surgery.'' These devices are class 
I, subject to general controls, and exempt from premarket notification 
procedures, subject to the limitations of exemptions in 21 CFR 888.9. 
This classification was based upon recommendations provided to FDA by 
the Orthopedic Device Classification Panel (the Panel) in October 1977 
regarding classification of medical devices in commercial distribution 
before May 28, 1976. The Panel identified the following risks to health 
for this device type: ``Tissue damage and adverse tissue reaction: 
Inadequate mechanical properties, such as lack of material strength of 
the device, may result in device fracture and possible tissue damage 
and, if fragments of the fractured device remain in the tissue, an 
adverse tissue reaction may result'' (47 FR 29052).
    FDA agreed that class I was appropriate because general controls 
alone were sufficient to mitigate the risk of tissue damage and adverse 
tissue reaction associated with inadequate mechanical properties and 
provide a reasonable assurance of the safety and effectiveness of these 
devices. Over time, manufacturers have developed and sought to market 
orthopedic instrumentation with designs unique to a device system, and 
these types of instruments may present new or different risks compared 
to inadequate mechanical properties. For example, certain device-
specific instruments are accessories and require precise technical 
specifications or design characteristics to function as intended to 
support, supplement or augment the parent device, and if not designed 
appropriately, could cause implant malpositioning or migration. 
Accordingly, FDA considers design controls (see Sec.  820.30) to be an 
important element in the regulation of device-specific accessories, 
among other regulatory controls, to ensure appropriate compatibility 
between the accessory and the parent device. In contrast, class I 
orthopedic manual surgical instruments do not require such controls.
    Instruments that are ``device-specific,'' or designed for use with 
a specific parent device/system and thus are accessories, have 
historically been reviewed in the same premarket submission as the 
parent device. In an effort to ensure a common understanding as to 
which orthopedic accessories fall under the existing class I regulation 
(Sec.  888.4540), and which devices do not and, therefore, may be 
candidates for classification under section 513(f)(6)(D)(i) of the FD&C 
Act,

[[Page 41025]]

we propose the following definition: A device-specific orthopedic 
instrument is considered to be an accessory designed specifically for 
appropriate implantation or placement of the parent device, based upon 
unique dimensions, geometry, and/or deployment. In these cases, design 
specifications are critical to the proper use of the accessory in 
supporting, supplementing, and/or augmenting the performance of the 
parent device and/or a specific system. This excludes general use 
orthopedic instruments that are provided as a part of a system.
    It is often necessary for orthopedic instruments to be described in 
a premarket submission (e.g., 510(k), PMA) to evaluate that the parent 
device functions as intended. Such orthopedic instruments may be 
appropriately classified in an existing class I regulation (Sec.  
888.4540) if they do not meet the definition of a device-specific 
orthopedic accessory above and their risk profile and necessary 
regulatory controls are commensurate with that of orthopedic manual 
surgical instruments. If they do meet the definition of a device-
specific orthopedic accessory above, then such orthopedic accessories 
may still be eligible for classification under section 513(f)(6)(D)(ii) 
of the FD&C Act.
    We welcome comments to help identify accessories in other product 
areas where the classification of the accessory relative to the parent 
device may be unclear and would benefit from this type of policy 
clarification.

IV. Proposed List of Accessories That May Be Suitable for Distinct 
Classification Into Class I

    We are proposing the following accessories, which have been granted 
marketing authorization as part of a premarket submission (i.e., 
510(k), De Novo classification request, or PMA) for another device with 
which they are intended to be used, as suitable for distinct 
classification into class I (see Table 1). When we publish the final 
list of accessories based on this list and the factors in section II, 
we will consider those accessories classified into class I, distinct 
from other devices, through such action.
    We would place each of these accessories in 21 CFR part 876, 878, 
or 886, as appropriate. Each of these accessories would be class I, 
exempt from the premarket notification procedures in 21 CFR part 807, 
subject to the applicable limitations of exemption (i.e., 21 CFR 876.9, 
878.9, or 886.9). We intend to make conforming changes to existing 
classification regulations as appropriate.

    Table 1--Proposed Accessories for Classification Into Class I and
                       Distinct From Other Devices
------------------------------------------------------------------------
           Current status of accessory
--------------------------------------------------
                                   Device type      Proposed device type
    Current classification      (existing product      identification
      regulation (21 CFR)             code)
------------------------------------------------------------------------
876.1075......................  Gastroenterology-  Accessories used to
                                 urology            remove a specimen of
                                 accessories to a   tissue for
                                 biopsy             microscopic
                                 instrument (FCG).  examination by
                                                    cutting or
                                                    aspiration. This
                                                    generic type of
                                                    device includes a
                                                    syringe for specimen
                                                    aspiration and a
                                                    biopsy channel
                                                    adaptor. This device
                                                    does not include
                                                    accessories to
                                                    biopsy instruments
                                                    used in other
                                                    medical specialty
                                                    areas.
876.3350 and 876.3630.........  Penile implant     Manual devices
                                 surgical           designed to be used
                                 accessories (JCW   for surgical
                                 and FHW).          procedures
                                                    associated with the
                                                    implantation of a
                                                    penile inflatable
                                                    implant or penile
                                                    rigidity implant.
                                                    This generic type of
                                                    device includes the
                                                    cylinder sizer,
                                                    cylinder insertion
                                                    tool, connector
                                                    assembly tool,
                                                    incision closing
                                                    tool, corporeal
                                                    dilator, tubing
                                                    passer, measurement
                                                    tool or tape,
                                                    temporary tubing
                                                    plug, and hemostat
                                                    shod tubing.
876.4620......................  Ureteral stent     Accessories that aid
                                 accessories        in the insertion of
                                 (FAD).             the ureteral stent
                                                    that is placed into
                                                    the ureter to
                                                    provide ureteral
                                                    rigidity and allow
                                                    the passage of
                                                    urine. This generic
                                                    type of device
                                                    includes the stent
                                                    positioner, wire
                                                    guide, and pigtail
                                                    straightener.
876.5010......................  Biliary stent,     Manual devices that
                                 drain, and         aid in the
                                 dilator            introduction and
                                 accessories        connection of
                                 (FGE).             biliary stents,
                                                    drains, or dilators.
                                                    This generic type of
                                                    device includes the
                                                    guiding catheter,
                                                    pushing catheter,
                                                    pigtail
                                                    straightener, flap
                                                    protector, nasal
                                                    transfer tube, and
                                                    drainage connecting
                                                    tube.
876.5090......................  Suprapubic         Manual devices that
                                 catheter           are used to
                                 accessories        facilitate the
                                 (KOB).             placement of a
                                                    suprapubic catheter.
                                                    This generic type of
                                                    device includes the
                                                    introducer, access
                                                    dilator, and peel-
                                                    away sheath.
876.5280......................  Implanted          Manual devices
                                 mechanical/        designed to be used
                                 hydraulic          for surgical
                                 urinary            procedures
                                 continence         associated with the
                                 device surgical    implantation of an
                                 accessories        implanted mechanical/
                                 (EZY).             hydraulic urinary
                                                    continence device.
                                                    This generic type of
                                                    device includes the
                                                    measurement tool or
                                                    tape, connector
                                                    assembly tool,
                                                    temporary tubing
                                                    plug, incision
                                                    closing tool, tubing
                                                    passer, and hemostat
                                                    shod tubing.
878.5070......................  Air-handling       Supplementary device
                                 apparatus          that is intended to
                                 accessory (FYD).   be used with an air-
                                                    handling apparatus
                                                    for a surgical
                                                    operating room. This
                                                    device provides an
                                                    interface between
                                                    the components of
                                                    the device or can be
                                                    used to switch
                                                    electrical power.
                                                    This generic type of
                                                    device includes
                                                    fittings, adapters,
                                                    couplers, remote
                                                    switches, and
                                                    footswitches.
No corresponding CFR Section..  Corneal inlay      Hand-held device
                                 inserter handle    intended to be used
                                 (LQE).             as an accessory to a
                                                    corneal inlay
                                                    inserter. The device
                                                    extends the length
                                                    of the inlay
                                                    inserter to aid in
                                                    delivering the inlay
                                                    implant.
------------------------------------------------------------------------

V. Paperwork Reduction Act of 1995

    This document refers to previously approved collections of 
information. 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 following FDA

[[Page 41026]]

regulations and guidance have been approved by OMB as listed in the 
following table:

------------------------------------------------------------------------
 21 CFR part; guidance; or FDA                              OMB control
              form                        Topic                 No.
------------------------------------------------------------------------
807, subpart E.................  Premarket notification.       0910-0120
814, subparts A through E......  Premarket approval.....       0910-0231
``De Novo Classification         De Novo classification        0910-0844
 Process (Evaluation of           process.
 Automatic Class III
 Designation)''.
800, 801, and 809..............  Medical Device Labeling       0910-0485
                                  Regulations.
820............................  Current Good                  0910-0073
                                  Manufacturing Practice
                                  (CGMP); Quality System
                                  (QS) Regulation.
``Medical Device Accessories--   Medical Device                0910-0823
 Describing Accessories and       Accessories.
 Classification Pathways for
 New Accessory Types''.
------------------------------------------------------------------------


    Dated: August 13, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-17731 Filed 8-16-18; 8:45 am]
 BILLING CODE 4164-01-P



                                                                        Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Proposed Rules                                           41023

                                                DEPARTMENT OF HEALTH AND                                confidential information that you or a                contact information to be made publicly
                                                HUMAN SERVICES                                          third party may not wish to be posted,                available, you can provide this
                                                                                                        such as medical information, your or                  information on the cover sheet and not
                                                Food and Drug Administration                            anyone else’s Social Security number, or              in the body of your comments and you
                                                                                                        confidential business information, such               must identify this information as
                                                21 CFR Parts 876, 878, and 886                          as a manufacturing process. Please note               ‘‘confidential.’’ Any information marked
                                                [Docket No. FDA–2018–N–3066]                            that if you include your name, contact                as ‘‘confidential’’ will not be disclosed
                                                                                                        information, or other information that                except in accordance with 21 CFR 10.20
                                                Medical Devices; Classification of                      identifies you in the body of your                    and other applicable disclosure law. For
                                                Accessories Distinct From Other                         comments, that information will be                    more information about FDA’s posting
                                                Devices; Proposed List of Accessories                   posted on https://www.regulations.gov.                of comments to public dockets, see 80
                                                Suitable for Class I; Request for                         • If you want to submit a comment                   FR 56469, September 18, 2015, or access
                                                Comments                                                with confidential information that you                the information at: https://www.gpo.gov/
                                                                                                        do not wish to be made available to the               fdsys/pkg/FR-2015-09-18/pdf/2015-
                                                AGENCY:    Food and Drug Administration,                public, submit the comment as a                       23389.pdf.
                                                HHS.                                                    written/paper submission and in the                      Docket: For access to the docket to
                                                      Notification; request for
                                                ACTION:                                                 manner detailed (see ‘‘Written/Paper                  read background documents or the
                                                comments.                                               Submissions’’ and ‘‘Instructions’’).                  electronic and written/paper comments
                                                SUMMARY:    As required by the FDA                      Written/Paper Submissions                             received, go to https://
                                                Reauthorization Act of 2017 (FDARA),                                                                          www.regulations.gov and insert the
                                                                                                           Submit written/paper submissions as                docket number, found in brackets in the
                                                the Food and Drug Administration (FDA                   follows:                                              heading of this document, into the
                                                or Agency) has identified a list of                        • Mail/Hand delivery/Courier (for
                                                accessories for which the Agency                                                                              ‘‘Search’’ box and follow the prompts
                                                                                                        written/paper submissions): Dockets
                                                believes general controls alone are                                                                           and/or go to the Dockets Management
                                                                                                        Management Staff (HFA–305), Food and
                                                sufficient to provide reasonable                                                                              Staff, 5630 Fishers Lane, Rm. 1061,
                                                                                                        Drug Administration, 5630 Fishers
                                                assurance of safety and effectiveness, so                                                                     Rockville, MD 20852.
                                                                                                        Lane, Rm. 1061, Rockville, MD 20852.
                                                the accessories could be in class I. FDA                   • For written/paper comments                       FOR FURTHER INFORMATION CONTACT: Ian
                                                is publishing this document proposing                   submitted to the Dockets Management                   Ostermiller, Center for Devices and
                                                to classify these accessories into class I              Staff, FDA will post your comment, as                 Radiological Health, Food and Drug
                                                and distinct from other devices, as well                well as any attachments, except for                   Administration, 10903 New Hampshire
                                                as seek public comment in accordance                    information submitted, marked and                     Ave., Bldg. 66, Rm. 5454, Silver Spring,
                                                with procedures established by FDARA.                   identified, as confidential, if submitted             MD 20993–0002, 301–796–5678.
                                                This document does not represent                        as detailed in ‘‘Instructions.’’                      SUPPLEMENTARY INFORMATION:
                                                FDA’s final determination with respect                     Instructions: All submissions received
                                                to the proposed accessories listed in this              must include the Docket No. FDA–                      I. Background
                                                document.                                               2018–N–3066 for ‘‘Medical Devices;                       On August 18, 2017, FDARA was
                                                DATES: Submit either electronic or                      Classification of Accessories Distinct                signed into law (Pub. L. 115–52).
                                                written comments on the document by                     from Other Devices; Proposed List of                  Section 707 of FDARA amended section
                                                October 16, 2018.                                       Accessories Suitable for Class I; Request             513(f) of the Federal Food, Drug, and
                                                ADDRESSES: You may submit comments                      for Comments.’’ Received comments                     Cosmetic Act (FD&C Act) and, among
                                                as follows. Please note that late,                      will be placed in the docket and, except              other amendments, created a process for
                                                untimely filed comments will not be                     for those submitted as ‘‘Confidential                 FDA to propose a list of accessories
                                                considered. Electronic comments must                    Submissions,’’ publicly viewable at                   suitable for distinct classification into
                                                be submitted on or before October 16,                   https://www.regulations.gov or at the                 class I (see section 513(f)(6)(D)(i) of the
                                                2018 The https://www.regulations.gov                    Dockets Management Staff between 9                    FD&C Act (21 U.S.C. 360c(f)(6)(D)(i))).
                                                electronic filing system will accept                    a.m. and 4 p.m., Monday through                       Section 707 of FDARA mandated that
                                                comments until midnight Eastern Time                    Friday.                                               FDA make the first such proposal
                                                at the end of October 16, 2018.                            • Confidential Submissions—To                      within a year of enactment of FDARA,
                                                Comments received by mail/hand                          submit a comment with confidential                    and FDA is publishing this document in
                                                delivery/courier (for written/paper                     information that you do not wish to be                accordance with this statutory mandate.
                                                submissions) will be considered timely                  made publicly available, submit your                     Section 201(h) of the FD&C Act
                                                if they are postmarked or the delivery                  comments only as a written/paper                      defines ‘‘device’’ to include, among
                                                service acceptance receipt is on or                     submission. You should submit two                     other articles, an ‘‘accessory’’ (see 21
                                                before that date.                                       copies total. One copy will include the               U.S.C. 321(h)). As such, all articles that
                                                                                                        information you claim to be confidential              meet the definition of ‘‘device’’,
                                                Electronic Submissions                                  with a heading or cover note that states              including accessories, are regulated
                                                  Submit electronic comments in the                     ‘‘THIS DOCUMENT CONTAINS                              under the FD&C Act. Based on sections
                                                following way:                                          CONFIDENTIAL INFORMATION.’’ The                       201(h) and 513(f)(6) of the FD&C Act,
                                                  • Federal eRulemaking Portal:                         Agency will review this copy, including               we have described our current thinking
                                                https://www.regulations.gov. Follow the                 the claimed confidential information, in              on which devices we would generally
amozie on DSK3GDR082PROD with PROPOSALS1




                                                instructions for submitting comments.                   its consideration of comments. The                    consider to be accessories in the
                                                Comments submitted electronically,                      second copy, which will have the                      guidance document, ‘‘Medical Device
                                                including attachments, to https://                      claimed confidential information                      Accessories—Describing Accessories
                                                www.regulations.gov will be posted to                   redacted/blacked out, will be available               and Classification Pathways,’’ available
                                                the docket unchanged. Because your                      for public viewing and posted on                      at https://www.fda.gov/MedicalDevices/
                                                comment will be made public, you are                    https://www.regulations.gov. Submit                   DeviceRegulationandGuidance/
                                                solely responsible for ensuring that your               both copies to the Dockets Management                 GuidanceDocuments/UCM429672
                                                comment does not include any                            Staff. If you do not wish your name and               (‘‘Accessories Guidance’’). That


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                                                41024                   Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Proposed Rules

                                                guidance defines an accessory as a                      supporting or sustaining human life, or               manipulate tissue, or for use with other
                                                ‘‘finished device that is intended to                   of substantial importance in preventing               devices in orthopedic surgery.’’ These
                                                support, supplement, and/or augment                     impairment to human health; (2) does                  devices are class I, subject to general
                                                the performance of one or more parent                   not represent a potential unreasonable                controls, and exempt from premarket
                                                devices.’’                                              risk of illness or injury; and (3) general            notification procedures, subject to the
                                                   Section 513 of the FD&C Act defines                  controls alone would be sufficient to                 limitations of exemptions in 21 CFR
                                                three classes of devices, reflecting the                provide a reasonable assurance of safety              888.9. This classification was based
                                                regulatory controls needed to provide                   and effectiveness of the accessory.                   upon recommendations provided to
                                                reasonable assurance of their safety and                   Note that by regulation, design                    FDA by the Orthopedic Device
                                                effectiveness. The three classes of                     controls apply to class I devices only if             Classification Panel (the Panel) in
                                                devices are class I (general controls),                 the devices are automated with                        October 1977 regarding classification of
                                                class II (special controls), and class III              computer software or are listed under                 medical devices in commercial
                                                (premarket approval). Some accessories                  § 820.30(a)(2)(ii). Thus, if an accessory             distribution before May 28, 1976. The
                                                may be granted marketing authorization                  is not automated with computer                        Panel identified the following risks to
                                                as part of a submission for another                     software but would require design                     health for this device type: ‘‘Tissue
                                                device with which they are intended to                  controls to provide reasonable assurance              damage and adverse tissue reaction:
                                                be used and in class II or III that, if                 of safety and effectiveness, we did not               Inadequate mechanical properties, such
                                                considered distinctly from another                      consider it eligible for classification               as lack of material strength of the
                                                device (such as the parent device), may                 through the final action based on this                device, may result in device fracture
                                                be suitable for classification into class I             document.                                             and possible tissue damage and, if
                                                if general controls alone are sufficient to                You may wish to propose additional                 fragments of the fractured device remain
                                                provide a reasonable assurance of safety                accessories as suitable for distinct                  in the tissue, an adverse tissue reaction
                                                and effectiveness of the accessory.                     classification into class I using the                 may result’’ (47 FR 29052).
                                                   Section 513(h)(1) defines general                    factors described above where the                        FDA agreed that class I was
                                                controls as the controls authorized by or               accessories are otherwise eligible for                appropriate because general controls
                                                under sections 501, 502, 510, 516, 518,                 classification under section                          alone were sufficient to mitigate the risk
                                                519, and 520 of the FD&C Act. These                     513(f)(6)(D)(i) of the FD&C Act. Should               of tissue damage and adverse tissue
                                                controls include, but are not limited to,               you wish to propose additional                        reaction associated with inadequate
                                                provisions related to adulteration and                  accessories, your comment should                      mechanical properties and provide a
                                                misbranding, registration and listing,                  briefly explain why you think general                 reasonable assurance of the safety and
                                                records and reports on devices, and                     controls alone will provide reasonable                effectiveness of these devices. Over
                                                good manufacturing practices. The                       assurance of safety and effectiveness.                time, manufacturers have developed
                                                regulations for good manufacturing                      Conversely, should you disagree with                  and sought to market orthopedic
                                                practices are under 21 CFR part 820, the                any of the proposed accessories for class             instrumentation with designs unique to
                                                Quality System regulation. Subject to                   I, your comments should briefly explain               a device system, and these types of
                                                the exceptions identified in                            why additional regulatory controls, such              instruments may present new or
                                                § 820.30(a)(2) (21 CFR 820.30(a)(2)) for                as premarket review through a 510(k)                  different risks compared to inadequate
                                                specific devices and those automated                    submission or premarket approval                      mechanical properties. For example,
                                                with computer software, design controls                 (PMA), are necessary to provide                       certain device-specific instruments are
                                                under § 820.30 do not generally apply to                reasonable assurance of safety and                    accessories and require precise
                                                a class I device.                                       effectiveness.                                        technical specifications or design
                                                   This document represents FDA’s                                                                             characteristics to function as intended
                                                                                                        III. Policy Clarification for
                                                compliance with FDARA’s requirement                                                                           to support, supplement or augment the
                                                                                                        Classification of Certain Accessories
                                                to identify the first list of accessories                                                                     parent device, and if not designed
                                                                                                        Used in Orthopedic Surgery
                                                suitable for distinct classification into                                                                     appropriately, could cause implant
                                                class I. As required by FDARA, we are                      Certain manual orthopedic                          malpositioning or migration.
                                                providing you with the opportunity to                   instruments that are for use with other               Accordingly, FDA considers design
                                                provide comment. Once the comment                       devices in orthopedic surgery meet                    controls (see § 820.30) to be an
                                                period ends, we will consider the                       FDA’s definition of an accessory                      important element in the regulation of
                                                comments and publish in the Federal                     described in the Accessories Guidance.                device-specific accessories, among other
                                                Register a final action classifying such                Accordingly, we are clarifying our                    regulatory controls, to ensure
                                                suitable accessories into class I.                      intended regulatory approach for certain              appropriate compatibility between the
                                                                                                        accessories used in orthopedic surgery                accessory and the parent device. In
                                                II. Factors for Consideration                           to distinguish which accessories may be               contrast, class I orthopedic manual
                                                   The classification of each accessory                 candidates for classification per section             surgical instruments do not require such
                                                will be based on the risks of the                       513(f)(6)(D)(i) of the FD&C Act.                      controls.
                                                accessory when used as intended and                        Instruments for use in orthopedic                     Instruments that are ‘‘device-
                                                the level of regulatory controls                        surgery vary widely from general                      specific,’’ or designed for use with a
                                                necessary to provide a reasonable                       manual surgical instruments used to                   specific parent device/system and thus
                                                assurance of safety and effectiveness of                manipulate tissue to more complex                     are accessories, have historically been
                                                the accessory, notwithstanding the                      accessories specifically designed for use             reviewed in the same premarket
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                                                classification of any other device with                 with a parent device/system.                          submission as the parent device. In an
                                                which such accessory is intended to be                  Orthopedic manual surgical instruments                effort to ensure a common
                                                used (see section 513(f)(6)(A) of the                   are classified in § 888.4540 (21 CFR                  understanding as to which orthopedic
                                                FD&C Act).                                              888.4540), and many ‘‘general use’’                   accessories fall under the existing class
                                                   In general, we considered an                         instruments fall within this                          I regulation (§ 888.4540), and which
                                                accessory to be eligible for classification             classification. This regulation pertains              devices do not and, therefore, may be
                                                into class I distinct from another device               to ‘‘nonpowered hand-held device[s]                   candidates for classification under
                                                if the accessory: (1) Is not for use in                 intended for medical purposes to                      section 513(f)(6)(D)(i) of the FD&C Act,


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                                                                              Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Proposed Rules                                                   41025

                                                we propose the following definition: A                          meet the definition of a device-specific               marketing authorization as part of a
                                                device-specific orthopedic instrument is                        orthopedic accessory above and their                   premarket submission (i.e., 510(k), De
                                                considered to be an accessory designed                          risk profile and necessary regulatory                  Novo classification request, or PMA) for
                                                specifically for appropriate implantation                       controls are commensurate with that of                 another device with which they are
                                                or placement of the parent device, based                        orthopedic manual surgical instruments.                intended to be used, as suitable for
                                                upon unique dimensions, geometry,                               If they do meet the definition of a                    distinct classification into class I (see
                                                and/or deployment. In these cases,                              device-specific orthopedic accessory                   Table 1). When we publish the final list
                                                design specifications are critical to the                       above, then such orthopedic accessories                of accessories based on this list and the
                                                proper use of the accessory in                                  may still be eligible for classification               factors in section II, we will consider
                                                supporting, supplementing, and/or                               under section 513(f)(6)(D)(ii) of the                  those accessories classified into class I,
                                                augmenting the performance of the                               FD&C Act.                                              distinct from other devices, through
                                                parent device and/or a specific system.                            We welcome comments to help                         such action.
                                                This excludes general use orthopedic                            identify accessories in other product                     We would place each of these
                                                instruments that are provided as a part                         areas where the classification of the                  accessories in 21 CFR part 876, 878, or
                                                of a system.                                                    accessory relative to the parent device                886, as appropriate. Each of these
                                                  It is often necessary for orthopedic                          may be unclear and would benefit from                  accessories would be class I, exempt
                                                instruments to be described in a                                this type of policy clarification.                     from the premarket notification
                                                premarket submission (e.g., 510(k),                                                                                    procedures in 21 CFR part 807, subject
                                                                                                                IV. Proposed List of Accessories That                  to the applicable limitations of
                                                PMA) to evaluate that the parent device
                                                                                                                May Be Suitable for Distinct                           exemption (i.e., 21 CFR 876.9, 878.9, or
                                                functions as intended. Such orthopedic
                                                                                                                Classification Into Class I                            886.9). We intend to make conforming
                                                instruments may be appropriately
                                                classified in an existing class I                                 We are proposing the following                       changes to existing classification
                                                regulation (§ 888.4540) if they do not                          accessories, which have been granted                   regulations as appropriate.

                                                          TABLE 1—PROPOSED ACCESSORIES FOR CLASSIFICATION INTO CLASS I AND DISTINCT FROM OTHER DEVICES
                                                                               Current status of accessory
                                                                                                                                                                  Proposed device type identification
                                                   Current classification regulation                             Device type
                                                              (21 CFR)                                     (existing product code)

                                                876.1075 .........................................   Gastroenterology-urology acces-           Accessories used to remove a specimen of tissue for microscopic ex-
                                                                                                      sories to a biopsy instrument              amination by cutting or aspiration. This generic type of device in-
                                                                                                      (FCG).                                     cludes a syringe for specimen aspiration and a biopsy channel
                                                                                                                                                 adaptor. This device does not include accessories to biopsy instru-
                                                                                                                                                 ments used in other medical specialty areas.
                                                876.3350 and 876.3630 ..................             Penile implant surgical         acces-    Manual devices designed to be used for surgical procedures associ-
                                                                                                       sories (JCW and FHW).                     ated with the implantation of a penile inflatable implant or penile ri-
                                                                                                                                                 gidity implant. This generic type of device includes the cylinder
                                                                                                                                                 sizer, cylinder insertion tool, connector assembly tool, incision clos-
                                                                                                                                                 ing tool, corporeal dilator, tubing passer, measurement tool or tape,
                                                                                                                                                 temporary tubing plug, and hemostat shod tubing.
                                                876.4620 .........................................   Ureteral stent accessories (FAD) ..       Accessories that aid in the insertion of the ureteral stent that is
                                                                                                                                                 placed into the ureter to provide ureteral rigidity and allow the pas-
                                                                                                                                                 sage of urine. This generic type of device includes the stent posi-
                                                                                                                                                 tioner, wire guide, and pigtail straightener.
                                                876.5010 .........................................   Biliary stent, drain, and dilator ac-     Manual devices that aid in the introduction and connection of biliary
                                                                                                        cessories (FGE).                         stents, drains, or dilators. This generic type of device includes the
                                                                                                                                                 guiding catheter, pushing catheter, pigtail straightener, flap pro-
                                                                                                                                                 tector, nasal transfer tube, and drainage connecting tube.
                                                876.5090 .........................................   Suprapubic catheter accessories           Manual devices that are used to facilitate the placement of a
                                                                                                       (KOB).                                    suprapubic catheter. This generic type of device includes the intro-
                                                                                                                                                 ducer, access dilator, and peel-away sheath.
                                                876.5280 .........................................   Implanted     mechanical/hydraulic        Manual devices designed to be used for surgical procedures associ-
                                                                                                       urinary continence device sur-            ated with the implantation of an implanted mechanical/hydraulic uri-
                                                                                                       gical accessories (EZY).                  nary continence device. This generic type of device includes the
                                                                                                                                                 measurement tool or tape, connector assembly tool, temporary tub-
                                                                                                                                                 ing plug, incision closing tool, tubing passer, and hemostat shod
                                                                                                                                                 tubing.
                                                878.5070 .........................................   Air-handling apparatus accessory          Supplementary device that is intended to be used with an air-han-
                                                                                                       (FYD).                                    dling apparatus for a surgical operating room. This device provides
                                                                                                                                                 an interface between the components of the device or can be used
                                                                                                                                                 to switch electrical power. This generic type of device includes fit-
                                                                                                                                                 tings, adapters, couplers, remote switches, and footswitches.
                                                No corresponding CFR Section ......                  Corneal inlay      inserter    handle     Hand-held device intended to be used as an accessory to a corneal
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                                                                                                      (LQE).                                     inlay inserter. The device extends the length of the inlay inserter to
                                                                                                                                                 aid in delivering the inlay implant.



                                                V. Paperwork Reduction Act of 1995                              These collections of information are                   the Paperwork Reduction Act of 1995
                                                                                                                subject to review by the Office of                     (44 U.S.C. 3501–3520). The collections
                                                  This document refers to previously
                                                                                                                Management and Budget (OMB) under                      of information in the following FDA
                                                approved collections of information.


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                                                41026                             Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Proposed Rules

                                                regulations and guidance have been                                          approved by OMB as listed in the
                                                                                                                            following table:

                                                                                                                                                                                                                                               OMB control
                                                                    21 CFR part; guidance; or FDA form                                                                                      Topic                                                 No.

                                                807, subpart E ............................................................................          Premarket notification ................................................................     0910–0120
                                                814, subparts A through E ..........................................................                 Premarket approval ....................................................................     0910–0231
                                                ‘‘De Novo Classification Process (Evaluation of Automatic                                            De Novo classification process ..................................................           0910–0844
                                                   Class III Designation)’’.
                                                800, 801, and 809 .......................................................................            Medical Device Labeling Regulations ........................................                0910–0485
                                                820 ..............................................................................................   Current Good Manufacturing Practice (CGMP); Quality Sys-                                    0910–0073
                                                                                                                                                       tem (QS) Regulation.
                                                ‘‘Medical Device Accessories—Describing Accessories and                                              Medical Device Accessories ......................................................           0910–0823
                                                   Classification Pathways for New Accessory Types’’.



                                                  Dated: August 13, 2018.                                                     The public comment period for these                                 regardless of whether another ECHO
                                                Leslie Kux,                                                                 regulations expired on July 19, 2018.                                 benefit is received in the same month.
                                                Associate Commissioner for Policy.                                          The notice of proposed rulemaking and                                 DATES: Written comments received at
                                                [FR Doc. 2018–17731 Filed 8–16–18; 8:45 am]                                 notice of hearing instructed those                                    the address indicated below by October
                                                BILLING CODE 4164–01–P
                                                                                                                            interested in testifying at the public                                16, 2018 will be accepted.
                                                                                                                            hearing to submit a request to speak and                              ADDRESSES: You may submit comments,
                                                                                                                            an outline of the topics to be discussed.                             identified by docket number or
                                                DEPARTMENT OF THE TREASURY                                                  The outline of topics to be discussed                                 Regulatory Information Number (RIN)
                                                                                                                            was due by August 3, 2018. As of                                      and title, by either of the following
                                                Internal Revenue Service                                                    August 3, 2018, no one has requested to                               methods:
                                                                                                                            speak. Therefore, the public hearing                                     • Federal eRulemaking Portal: http://
                                                26 CFR Part 1                                                               scheduled for August 21, 2018 at 10:00                                www.regulations.gov. Follow the
                                                                                                                            a.m. is cancelled.                                                    instructions for submitting comments.
                                                [REG–131186–17]                                                                                                                                      • Mail: Department of Defense, Office
                                                                                                                            Martin V. Franks,
                                                RIN 1545–BO05                                                                                                                                     of the Deputy Chief Management
                                                                                                                            Branch Chief, Publications and Regulations                            Officer, Directorate for Oversight and
                                                                                                                            Branch, Legal Processing Division, Associate
                                                Proposed Removal of Temporary                                               Chief Counsel (Procedure and
                                                                                                                                                                                                  Compliance, 4800 Mark Center Drive,
                                                Regulations on a Partner’s Share of a                                       Administration).                                                      Mailbox #24, Alexandria, VA 22350–
                                                Partnership Liability for Disguised Sale                                    [FR Doc. 2018–17792 Filed 8–16–18; 8:45 am]
                                                                                                                                                                                                  1700.
                                                Purposes; Hearing Cancellation                                                                                                                       Instructions: All submissions received
                                                                                                                            BILLING CODE 4830–01–P
                                                                                                                                                                                                  must include the agency name and
                                                AGENCY:  Internal Revenue Service (IRS),                                                                                                          docket number or RIN for this Federal
                                                Treasury.                                                                                                                                         Register document. The general policy
                                                ACTION: Cancellation of notice of public                                    DEPARTMENT OF DEFENSE                                                 for comments and other submissions
                                                hearing on proposed rulemaking.                                                                                                                   from members of the public is to make
                                                                                                                            Office of the Secretary
                                                                                                                                                                                                  these submissions available for public
                                                SUMMARY:   This document cancels a                                                                                                                viewing on the internet at http://
                                                public hearing on proposed regulations                                      32 CFR Part 199                                                       www.regulations.gov as they are
                                                concerning how partnership liabilities                                      [Docket ID DOD–2016–HA–0112]                                          received without change, including any
                                                are allocated for disguised sale                                                                                                                  personal identifiers or contact
                                                purposes.                                                                   RIN 0720–AB69
                                                                                                                                                                                                  information.
                                                DATES:  The public hearing, originally                                      TRICARE; Extended Care Health                                         FOR FURTHER INFORMATION CONTACT: Ms.
                                                scheduled for August 21, 2018 at 10:00                                      Option (ECHO) Respite Care                                            Trish Reilly, Defense Health Agency,
                                                a.m. is cancelled.                                                                                                                                TRICARE Clinical Policy Division,
                                                                                                                            AGENCY:  Office of the Secretary,
                                                FOR FURTHER INFORMATION CONTACT:                                                                                                                  telephone (619) 236–5332.
                                                                                                                            Department of Defense (DoD).
                                                Regina Johnson of the Publications and                                                                                                            SUPPLEMENTARY INFORMATION:
                                                                                                                            ACTION: Proposed rule.
                                                Regulations Branch, Legal Processing
                                                Division, Associate Chief Counsel                                                                                                                 I. Executive Summary
                                                                                                                            SUMMARY:   This proposed rule requests
                                                (Procedure and Administration) at (202)                                     public comment on a proposed revision                                 A. Purpose of the Proposed Rule
                                                317–6901 (not a toll-free number).                                          to the TRICARE Extended Care Health                                     This proposed rule seeks to amend
                                                SUPPLEMENTARY INFORMATION: A notice                                         Option (ECHO) respite care benefit.                                   the TRICARE ECHO program regulation
                                                of proposed rulemaking and notice of                                        Under the current program, TRICARE                                    to expand beneficiary access to ECHO
                                                public hearing that appeared in the                                         beneficiaries enrolled in ECHO are                                    respite care services. This proposed
                                                Federal Register on Tuesday, June 19,                                       eligible for 16 hours of respite care per                             rule, if implemented, would eliminate
amozie on DSK3GDR082PROD with PROPOSALS1




                                                2018 (83 FR 28397) announced that a                                         month in any month during which the                                   the concurrent ECHO benefit
                                                public hearing was scheduled for                                            beneficiary receives another ECHO                                     requirement and allow beneficiaries
                                                August 21, 2018 at 10:00 a.m. in the IRS                                    authorized benefit (other than the EHHC                               enrolled in ECHO to receive a maximum
                                                Auditorium, Internal Revenue Service                                        benefit). This proposed rule seeks to                                 of 16 hours of respite care per month,
                                                Building, 1111 Constitution Avenue                                          eliminate the concurrent ECHO benefit                                 regardless of whether another ECHO
                                                NW, Washington, DC. The subject of the                                      requirement and allow beneficiaries                                   benefit is received in the same month.
                                                public hearing is under section 707 of                                      enrolled in ECHO to receive a maximum                                   This regulation is proposed under the
                                                the Internal Revenue Code.                                                  of 16 hours of respite care per month,                                authority of 5 U.S.C. 301 which allows


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Document Created: 2018-08-17 03:25:39
Document Modified: 2018-08-17 03:25:39
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotification; request for comments.
DatesSubmit either electronic or written comments on the document by October 16, 2018.
ContactIan Ostermiller, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5454, Silver Spring, MD 20993-0002, 301- 796-5678.
FR Citation83 FR 41023 
CFR Citation21 CFR 876
21 CFR 878
21 CFR 886

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