83_FR_52514 83 FR 52313 - Medical Devices; Immunology and Microbiology Devices; Classification of the Herpes Virus Nucleic Acid-Based Cutaneous and Mucocutaneous Lesion Panel

83 FR 52313 - Medical Devices; Immunology and Microbiology Devices; Classification of the Herpes Virus Nucleic Acid-Based Cutaneous and Mucocutaneous Lesion Panel

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 83, Issue 201 (October 17, 2018)

Page Range52313-52315
FR Document2018-22694

The Food and Drug Administration (FDA or we) is classifying the herpes virus nucleic acid-based cutaneous and mucocutaneous lesion panel 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 herpes virus nucleic acid-based cutaneous and mucocutaneous lesion panel'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 201 (Wednesday, October 17, 2018)
[Federal Register Volume 83, Number 201 (Wednesday, October 17, 2018)]
[Rules and Regulations]
[Pages 52313-52315]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-22694]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 866

[Docket No. FDA-2018-N-3596]


Medical Devices; Immunology and Microbiology Devices; 
Classification of the Herpes Virus Nucleic Acid-Based Cutaneous and 
Mucocutaneous Lesion Panel

AGENCY: Food and Drug Administration, HHS.

ACTION: Final order.

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

SUMMARY: The Food and Drug Administration (FDA or we) is classifying 
the herpes virus nucleic acid-based cutaneous and mucocutaneous lesion 
panel 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 herpes virus nucleic acid-based cutaneous and 
mucocutaneous lesion panel'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 October 17, 2018. The classification was 
applicable on May 13, 2014.

FOR FURTHER INFORMATION CONTACT: Scott McFarland, Center for Devices 
and Radiological Health, Food and Drug Administration, 10903 New 
Hampshire Ave., Bldg. 66, Rm. 4676, Silver Spring, MD, 20993-0002, 301-
796-6217, scott.mcfarland@fda.hhs.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Upon request, FDA has classified the herpes virus nucleic acid-
based cutaneous and mucocutaneous lesion panel 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 (Pub. L. 105-115) established the first procedure for De 
Novo classification. Section 607 of the Food and Drug Administration 
Safety and Innovation Act (Pub. L. 112-144) modified the De Novo 
application process by adding a second procedure. 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 is required 
to 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 (PMA) 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

    For this device, FDA issued an order on February 7, 2014, finding 
the Lyra\TM\ Direct HSV 1 + 2/VZV Assay not substantially equivalent to 
a predicate not subject to PMA. Thus, the device remained in class III 
in accordance with section 513(f)(1) of the FD&C Act when we issued the 
order.
    On February 21, 2014, Quidel Corporation submitted a request for De 
Novo classification of the Lyra\TM\ Direct HSV 1 + 2/VZV Assay. 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 general 
controls, will provide reasonable assurance of the safety and 
effectiveness of the device.
    Therefore, on May 13, 2014, FDA issued an order to the requestor 
classifying the device into class II. FDA

[[Page 52314]]

is codifying the classification of the device by adding 21 CFR 
866.3309. We have named the generic type of device herpes virus nucleic 
acid-based cutaneous and mucocutaneous lesion panel, and it is 
identified as a qualitative in vitro diagnostic device intended for the 
simultaneous detection and differentiation of different herpes viruses 
in cutaneous and mucocutaneous lesion samples from symptomatic patients 
suspected of Herpetic infections. Negative results do not preclude 
infection and should not be used as the sole basis for treatment or 
other patient management decisions. The assay is not intended for use 
in cerebrospinal fluid samples.
    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--Herpes Virus Nucleic Acid-Based Cutaneous and Mucocutaneous
               Lesion Panel Risks and Mitigation Measures
------------------------------------------------------------------------
            Identified risks                   Mitigation measures
------------------------------------------------------------------------
Risk of false results..................  Special controls (1) (21 CFR
                                          866.3309(b)(1)), (2) (21 CFR
                                          866.3309(b)(2)), and (3) (21
                                          CFR 866.3309(b)(3)).
Failure to correctly interpret test      Special controls (4) (21 CFR
 results.                                 866.3309(b)(4)) and (5) (21
                                          CFR 866.3309(b)(5)).
Failure to correctly operate the         Special controls (6) (21 CFR
 instrument.                              866.3309(b)(6)) and (7) (21
                                          CFR 866.3309(b)(7)).
------------------------------------------------------------------------

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

III. Analysis of Environmental Impact

    We have 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; the collections of information in 21 CFR part 
820, regarding quality system regulations, have been approved under OMB 
control number 0910-0073; 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 21 CFR part 866 continues to read as 
follows:

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


0
2. Add Sec.  866.3309 to subpart D to read as follows:


Sec.  866.3309   Herpes virus nucleic acid-based cutaneous and 
mucocutaneous lesion panel.

    (a) Identification. A herpes virus nucleic acid-based cutaneous and 
mucocutaneous lesion panel is a qualitative in vitro diagnostic device 
intended for the simultaneous detection and differentiation of 
different herpes viruses in cutaneous and mucocutaneous lesion samples 
from symptomatic patients suspected of Herpetic infections. Negative 
results do not preclude infection and should not be used as the sole 
basis for treatment or other patient management decisions. The assay is 
not intended for use in cerebrospinal fluid samples.
    (b) Classification. Class II (special controls). The special 
controls for this device are:
    (1) Premarket notification submissions must include detailed 
documentation for the device description, including the device 
components, ancillary reagents required but not provided, and a 
detailed explanation of the methodology including primer design and 
selection.
    (2) Premarket notification submissions must include detailed 
documentation from the following analytical and clinical performance 
studies: Analytical sensitivity (Limit of Detection), reactivity, 
inclusivity, precision, reproducibility, interference, cross 
reactivity, carry-over, and cross contamination.
    (3) Premarket notification submissions must include detailed 
documentation of a clinical study using lesion samples in which Herpes 
Simplex Virus 1, Herpes Simplex Virus 2, or Varicella Zoster Virus DNA 
detection was requested. The study must compare the device performance 
to an appropriate well established reference method.
    (4) A detailed explanation of the interpretation of results and 
acceptance criteria must be included in the device's 21 CFR 
809.10(b)(9) compliant labeling.
    (5) The device labeling must include a limitation statement that 
reads: ``The device is not intended for use with cerebrospinal fluid or 
to aid in the diagnosis of HSV or VZV infections of the central nervous 
system (CNS).''
    (6) Premarket notification submissions must include quality 
assurance protocols and a detailed documentation for device software, 
including, but not limited to, standalone

[[Page 52315]]

software applications and hardware-based devices that incorporate 
software.
    (7) The risk management activities performed as part of the 
manufacturer's 21 CFR 820.30 design controls must document an 
appropriate end user device training program that will be offered as 
part of efforts to mitigate the risk of failure to correctly operate 
the instrument.

    Dated: October 12, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-22694 Filed 10-16-18; 8:45 am]
 BILLING CODE 4164-01-P



                                                              Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Rules and Regulations                                         52313

                                             202–741–6030, or go to: http://                          a reasonable assurance of safety and                  classification under section 513(f)(2) of
                                             www.archives.gov/federal-register/cfr/ibr-               effectiveness. In addition, we believe                the FD&C Act.
                                             locations.html.                                          this action will enhance patients’ access               Under either procedure for De Novo
                                               Issued in Des Moines, Washington, on                   to beneficial innovation, in part by                  classification, FDA is required to
                                             September 14, 2018.                                      reducing regulatory burdens by placing                classify the device by written order
                                             John P. Piccola,                                         the device into a lower device class than             within 120 days. The classification will
                                             Acting Director, System Oversight Division,              the automatic class III assignment.                   be according to the criteria under
                                             Aircraft Certification Service.                             The automatic assignment of class III              section 513(a)(1) of the FD&C Act.
                                             [FR Doc. R1–2018–21460 Filed 10–16–18; 8:45 am]          occurs by operation of law and without                Although the device was automatically
                                             BILLING CODE 1301–00–D
                                                                                                      any action by FDA, regardless of the                  placed within class III, the De Novo
                                                                                                      level of risk posed by the new device.                classification is considered to be the
                                                                                                      Any device that was not in commercial                 initial classification of the device.
                                                                                                      distribution before May 28, 1976, is                    We believe this De Novo classification
                                             DEPARTMENT OF HEALTH AND                                                                                       will enhance patients’ access to
                                                                                                      automatically classified as, and remains
                                             HUMAN SERVICES                                                                                                 beneficial innovation, in part by
                                                                                                      within, class III and requires premarket
                                             Food and Drug Administration                             approval unless and until FDA takes an                reducing regulatory burdens. When FDA
                                                                                                      action to classify or reclassify the device           classifies a device into class I or II via
                                             21 CFR Part 866                                          (see 21 U.S.C. 360c(f)(1)). We refer to               the De Novo process, the device can
                                                                                                      these devices as ‘‘postamendments                     serve as a predicate for future devices of
                                             [Docket No. FDA–2018–N–3596]                             devices’’ because they were not in                    that type, including for 510(k)s (see 21
                                                                                                      commercial distribution prior to the                  U.S.C. 360c(f)(2)(B)(i)). As a result, other
                                             Medical Devices; Immunology and                          date of enactment of the Medical Device               device sponsors do not have to submit
                                             Microbiology Devices; Classification of                  Amendments of 1976, which amended                     a De Novo request or premarket
                                             the Herpes Virus Nucleic Acid-Based                      the Federal Food, Drug, and Cosmetic                  approval application (PMA) to market a
                                             Cutaneous and Mucocutaneous Lesion                       Act (FD&C Act).                                       substantially equivalent device (see 21
                                             Panel                                                       FDA may take a variety of actions in               U.S.C. 360c(i), defining ‘‘substantial
                                             AGENCY:    Food and Drug Administration,                 appropriate circumstances to classify or              equivalence’’). Instead, sponsors can use
                                             HHS.                                                     reclassify a device into class I or II. We            the less-burdensome 510(k) process,
                                                                                                      may issue an order finding a new device               when necessary, to market their device.
                                             ACTION:   Final order.
                                                                                                      to be substantially equivalent under
                                                                                                      section 513(i) of the FD&C Act (21                    II. De Novo Classification
                                             SUMMARY:    The Food and Drug
                                             Administration (FDA or we) is                            U.S.C. 360c(i) to a predicate device that                For this device, FDA issued an order
                                             classifying the herpes virus nucleic                     does not require premarket approval.                  on February 7, 2014, finding the LyraTM
                                             acid-based cutaneous and                                 We determine whether a new device is                  Direct HSV 1 + 2/VZV Assay not
                                             mucocutaneous lesion panel into class II                 substantially equivalent to a predicate               substantially equivalent to a predicate
                                             (special controls). The special controls                 by means of the procedures for                        not subject to PMA. Thus, the device
                                             that apply to the device type are                        premarket notification under section                  remained in class III in accordance with
                                             identified in this order and will be part                510(k) of the FD&C Act (21 U.S.C.                     section 513(f)(1) of the FD&C Act when
                                             of the codified language for the herpes                  360(k)) and part 807 (21 CFR part 807).               we issued the order.
                                             virus nucleic acid-based cutaneous and                      FDA may also classify a device                        On February 21, 2014, Quidel
                                             mucocutaneous lesion panel’s                             through ‘‘De Novo’’ classification, a                 Corporation submitted a request for De
                                             classification. We are taking this action                common name for the process                           Novo classification of the LyraTM Direct
                                             because we have determined that                          authorized under section 513(f)(2) of the             HSV 1 + 2/VZV Assay. FDA reviewed
                                             classifying the device into class II                     FD&C Act. Section 207 of the Food and                 the request in order to classify the
                                             (special controls) will provide a                        Drug Administration Modernization Act                 device under the criteria for
                                             reasonable assurance of safety and                       of 1997 (Pub. L. 105–115) established                 classification set forth in section
                                             effectiveness of the device. We believe                  the first procedure for De Novo                       513(a)(1) of the FD&C Act.
                                                                                                      classification. Section 607 of the Food                  We classify devices into class II if
                                             this action will also enhance patients’
                                                                                                      and Drug Administration Safety and                    general controls by themselves are
                                             access to beneficial innovative devices,
                                                                                                      Innovation Act (Pub. L. 112–144)                      insufficient to provide reasonable
                                             in part by reducing regulatory burdens.
                                                                                                      modified the De Novo application                      assurance of safety and effectiveness,
                                             DATES: This order is effective October                                                                         but there is sufficient information to
                                                                                                      process by adding a second procedure.
                                             17, 2018. The classification was                         A device sponsor may utilize either                   establish special controls that, in
                                             applicable on May 13, 2014.                              procedure for De Novo classification.                 combination with the general controls,
                                             FOR FURTHER INFORMATION CONTACT:                            Under the first procedure, the person              provide reasonable assurance of the
                                             Scott McFarland, Center for Devices and                  submits a 510(k) for a device that has                safety and effectiveness of the device for
                                             Radiological Health, Food and Drug                       not previously been classified. After                 its intended use (see 21 U.S.C.
                                             Administration, 10903 New Hampshire                      receiving an order from FDA classifying               360c(a)(1)(B)). After review of the
                                             Ave., Bldg. 66, Rm. 4676, Silver Spring,                 the device into class III under section               information submitted in the request,
                                             MD, 20993–0002, 301–796–6217,                            513(f)(1) of the FD&C Act, the person                 we determined that the device can be
                                             scott.mcfarland@fda.hhs.gov.                             then requests a classification under                  classified into class II with the
                                             SUPPLEMENTARY INFORMATION:                               section 513(f)(2).                                    establishment of special controls. FDA
                                                                                                         Under the second procedure, rather
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                                                                                                                                                            has determined that these special
                                             I. Background                                            than first submitting a 510(k) and then               controls, in addition to general controls,
                                               Upon request, FDA has classified the                   a request for classification, if the person           will provide reasonable assurance of the
                                             herpes virus nucleic acid-based                          determines that there is no legally                   safety and effectiveness of the device.
                                             cutaneous and mucocutaneous lesion                       marketed device upon which to base a                     Therefore, on May 13, 2014, FDA
                                             panel as class II (special controls),                    determination of substantial                          issued an order to the requestor
                                             which we have determined will provide                    equivalence, that person requests a                   classifying the device into class II. FDA


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                                             52314               Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Rules and Regulations

                                             is codifying the classification of the                                 and differentiation of different herpes                      The assay is not intended for use in
                                             device by adding 21 CFR 866.3309. We                                   viruses in cutaneous and                                     cerebrospinal fluid samples.
                                             have named the generic type of device                                  mucocutaneous lesion samples from                               FDA has identified the following risks
                                             herpes virus nucleic acid-based                                        symptomatic patients suspected of                            to health associated specifically with
                                             cutaneous and mucocutaneous lesion                                     Herpetic infections. Negative results do
                                                                                                                                                                                 this type of device and the measures
                                             panel, and it is identified as a                                       not preclude infection and should not
                                                                                                                                                                                 required to mitigate these risks in table
                                             qualitative in vitro diagnostic device                                 be used as the sole basis for treatment
                                             intended for the simultaneous detection                                or other patient management decisions.                       1.

                                                      TABLE 1—HERPES VIRUS NUCLEIC ACID-BASED CUTANEOUS AND MUCOCUTANEOUS LESION PANEL RISKS AND
                                                                                          MITIGATION MEASURES
                                                                                      Identified risks                                                                            Mitigation measures

                                             Risk of false results ..................................................................................   Special controls (1) (21 CFR 866.3309(b)(1)), (2) (21 CFR
                                                                                                                                                          866.3309(b)(2)), and (3) (21 CFR 866.3309(b)(3)).
                                             Failure to correctly interpret test results ...................................................            Special controls (4) (21 CFR 866.3309(b)(4)) and (5) (21 CFR
                                                                                                                                                          866.3309(b)(5)).
                                             Failure to correctly operate the instrument ..............................................                 Special controls (6) (21 CFR 866.3309(b)(6)) and (7) (21 CFR
                                                                                                                                                          866.3309(b)(7)).



                                               FDA has determined that special                                      regarding premarket notification                             The assay is not intended for use in
                                             controls, in combination with the                                      submissions, have been approved under                        cerebrospinal fluid samples.
                                             general controls, address these risks to                               OMB control number 0910–0120; the                               (b) Classification. Class II (special
                                             health and provide reasonable assurance                                collections of information in 21 CFR                         controls). The special controls for this
                                             of safety and effectiveness. For a device                              part 820, regarding quality system                           device are:
                                             to fall within this classification, and                                regulations, have been approved under                           (1) Premarket notification
                                             thus avoid automatic classification in                                 OMB control number 0910–0073; and                            submissions must include detailed
                                             class III, it would have to comply with                                the collections of information in 21 CFR                     documentation for the device
                                             the special controls named in this final                               parts 801 and 809, regarding labeling,                       description, including the device
                                             order. The necessary special controls                                  have been approved under OMB control                         components, ancillary reagents required
                                             appear in the regulation codified by this                              number 0910–0485.                                            but not provided, and a detailed
                                             order. This device is subject to                                                                                                    explanation of the methodology
                                                                                                                    List of Subjects in 21 CFR Part 866
                                             premarket notification requirements                                                                                                 including primer design and selection.
                                             under section 510(k) of the FD&C Act.                                    Biologics; Laboratories; Medical                              (2) Premarket notification
                                                                                                                    devices.                                                     submissions must include detailed
                                             III. Analysis of Environmental Impact
                                                                                                                      Therefore, under the Federal Food,                         documentation from the following
                                               We have determined under 21 CFR                                      Drug, and Cosmetic Act and under                             analytical and clinical performance
                                             25.34(b) that this action is of a type that                            authority delegated to the Commissioner                      studies: Analytical sensitivity (Limit of
                                             does not individually or cumulatively                                  of Food and Drugs, 21 CFR part 866 is                        Detection), reactivity, inclusivity,
                                             have a significant effect on the human                                 amended as follows:                                          precision, reproducibility, interference,
                                             environment. Therefore, neither an                                                                                                  cross reactivity, carry-over, and cross
                                             environmental assessment nor an                                        PART 866—IMMUNOLOGY AND                                      contamination.
                                             environmental impact statement is                                      MICROBIOLOGY DEVICES                                            (3) Premarket notification
                                             required.                                                                                                                           submissions must include detailed
                                                                                                                    ■ 1. The authority citation for 21 CFR                       documentation of a clinical study using
                                             IV. Paperwork Reduction Act of 1995                                    part 866 continues to read as follows:                       lesion samples in which Herpes
                                               This final order establishes special                                   Authority: 21 U.S.C. 351, 360, 360c, 360e,                 Simplex Virus 1, Herpes Simplex Virus
                                             controls that refer to previously                                      360j, 360l, 371.                                             2, or Varicella Zoster Virus DNA
                                             approved collections of information                                    ■ 2. Add § 866.3309 to subpart D to read                     detection was requested. The study
                                             found in other FDA regulations and                                     as follows:                                                  must compare the device performance
                                             guidance. These collections of                                                                                                      to an appropriate well established
                                             information are subject to review by the                               § 866.3309 Herpes virus nucleic acid-                        reference method.
                                             Office of Management and Budget                                        based cutaneous and mucocutaneous                               (4) A detailed explanation of the
                                             (OMB) under the Paperwork Reduction                                    lesion panel.                                                interpretation of results and acceptance
                                             Act of 1995 (44 U.S.C. 3501–3520). The                                   (a) Identification. A herpes virus                         criteria must be included in the device’s
                                             collections of information in the                                      nucleic acid-based cutaneous and                             21 CFR 809.10(b)(9) compliant labeling.
                                             guidance document ‘‘De Novo                                            mucocutaneous lesion panel is a                                 (5) The device labeling must include
                                             Classification Process (Evaluation of                                  qualitative in vitro diagnostic device                       a limitation statement that reads: ‘‘The
                                             Automatic Class III Designation)’’ have                                intended for the simultaneous detection                      device is not intended for use with
                                             been approved under OMB control                                        and differentiation of different herpes                      cerebrospinal fluid or to aid in the
                                             number 0910–0844; the collections of                                   viruses in cutaneous and                                     diagnosis of HSV or VZV infections of
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                                             information in 21 CFR part 814,                                        mucocutaneous lesion samples from                            the central nervous system (CNS).’’
                                             subparts A through E, regarding                                        symptomatic patients suspected of                               (6) Premarket notification
                                             premarket approval, have been                                          Herpetic infections. Negative results do                     submissions must include quality
                                             approved under OMB control number                                      not preclude infection and should not                        assurance protocols and a detailed
                                             0910–0231; the collections of                                          be used as the sole basis for treatment                      documentation for device software,
                                             information in part 807, subpart E,                                    or other patient management decisions.                       including, but not limited to, standalone


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                                                              Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Rules and Regulations                                         52315

                                             software applications and hardware-                      reasonable assurance of safety and                    classification under section 513(f)(2) of
                                             based devices that incorporate software.                 effectiveness. In addition, we believe                the FD&C Act.
                                                (7) The risk management activities                    this action will enhance patients’ access               Under either procedure for De Novo
                                             performed as part of the manufacturer’s                  to beneficial innovation, in part by                  classification, FDA is required to
                                             21 CFR 820.30 design controls must                       reducing regulatory burdens by placing                classify the device by written order
                                             document an appropriate end user                         the device into a lower device class than             within 120 days. The classification will
                                             device training program that will be                     the automatic class III assignment.                   be according to the criteria under
                                             offered as part of efforts to mitigate the                  The automatic assignment of class III              section 513(a)(1) of the FD&C Act.
                                             risk of failure to correctly operate the                 occurs by operation of law and without                Although the device was automatically
                                             instrument.                                              any action by FDA, regardless of the                  placed within class III, the De Novo
                                               Dated: October 12, 2018.
                                                                                                      level of risk posed by the new device.                classification is considered to be the
                                                                                                      Any device that was not in commercial                 initial classification of the device.
                                             Leslie Kux,
                                                                                                      distribution before May 28, 1976, is                    We believe this De Novo classification
                                             Associate Commissioner for Policy.                       automatically classified as, and remains
                                             [FR Doc. 2018–22694 Filed 10–16–18; 8:45 am]
                                                                                                                                                            will enhance patients’ access to
                                                                                                      within, class III and requires premarket              beneficial innovation, in part by
                                             BILLING CODE 4164–01–P                                   approval unless and until FDA takes an                reducing regulatory burdens. When FDA
                                                                                                      action to classify or reclassify the device           classifies a device into class I or II via
                                                                                                      (see 21 U.S.C. 360c(f)(1)). We refer to               the De Novo process, the device can
                                             DEPARTMENT OF HEALTH AND                                 these devices as ‘‘postamendments
                                             HUMAN SERVICES                                                                                                 serve as a predicate for future devices of
                                                                                                      devices’’ because they were not in                    that type, including for 510(k)s (see 21
                                                                                                      commercial distribution prior to the                  U.S.C. 360c(f)(2)(B)(i)). As a result, other
                                             Food and Drug Administration                             date of enactment of the Medical Device               device sponsors do not have to submit
                                                                                                      Amendments of 1976, which amended                     a De Novo request or premarket
                                             21 CFR Part 882                                          the Federal Food, Drug, and Cosmetic                  approval application to market a
                                             [Docket No. FDA–2018–N–3635]                             Act (FD&C Act).                                       substantially equivalent device (see 21
                                                                                                         FDA may take a variety of actions in
                                             Medical Devices; Neurological                                                                                  U.S.C. 360c(i), defining ‘‘substantial
                                                                                                      appropriate circumstances to classify or
                                             Devices; Classification of the External                                                                        equivalence’’). Instead, sponsors can use
                                                                                                      reclassify a device into class I or II. We
                                             Upper Limb Tremor Stimulator                                                                                   the less-burdensome 510(k) process,
                                                                                                      may issue an order finding a new device
                                                                                                                                                            when necessary, to market their device.
                                                                                                      to be substantially equivalent under
                                             AGENCY:    Food and Drug Administration,
                                                                                                      section 513(i) of the FD&C Act (21                    II. De Novo Classification
                                             HHS.
                                                                                                      U.S.C. 360c(i)) to a predicate device that
                                             ACTION:   Final order.                                                                                            On May 17, 2017, Cala Health, Inc.
                                                                                                      does not require premarket approval.
                                                                                                                                                            submitted a request for De Novo
                                             SUMMARY:   The Food and Drug                             We determine whether a new device is
                                                                                                      substantially equivalent to a predicate               classification of the Cala ONE. FDA
                                             Administration (FDA or we) is                                                                                  reviewed the request in order to classify
                                             classifying the external upper limb                      by means of the procedures for
                                                                                                      premarket notification under section                  the device under the criteria for
                                             tremor stimulator into class II (special                                                                       classification set forth in section
                                             controls). The special controls that                     510(k) of the FD&C Act (21 U.S.C.
                                                                                                      360(k)) and part 807 (21 CFR part 807).               513(a)(1) of the FD&C Act.
                                             apply to the device type are identified                                                                           We classify devices into class II if
                                                                                                         FDA may also classify a device
                                             in this order and will be part of the                                                                          general controls by themselves are
                                                                                                      through ‘‘De Novo’’ classification, a
                                             codified language for the external upper                                                                       insufficient to provide reasonable
                                                                                                      common name for the process
                                             limb tremor stimulator’s classification.                                                                       assurance of safety and effectiveness,
                                                                                                      authorized under section 513(f)(2) of the
                                             We are taking this action because we                                                                           but there is sufficient information to
                                                                                                      FD&C Act. Section 207 of the Food and
                                             have determined that classifying the                                                                           establish special controls that, in
                                                                                                      Drug Administration Modernization Act
                                             device into class II (special controls)                                                                        combination with the general controls,
                                                                                                      of 1997 (Pub. L. 105–115) established
                                             will provide a reasonable assurance of                                                                         provide reasonable assurance of the
                                                                                                      the first procedure for De Novo
                                             safety and effectiveness of the device.                                                                        safety and effectiveness of the device for
                                                                                                      classification. Section 607 of the Food
                                             We believe this action will also enhance                                                                       its intended use (see 21 U.S.C.
                                                                                                      and Drug Administration Safety and
                                             patients’ access to beneficial innovative                                                                      360c(a)(1)(B)). After review of the
                                                                                                      Innovation Act (Pub. L. 112–144)
                                             devices, in part by reducing regulatory                                                                        information submitted in the request,
                                                                                                      modified the De Novo application
                                             burdens.                                                                                                       we determined that the device can be
                                                                                                      process by adding a second procedure.
                                             DATES: This order is effective October                   A device sponsor may utilize either                   classified into class II with the
                                             17, 2018. The classification was                         procedure for De Novo classification.                 establishment of special controls. FDA
                                             applicable on April 26, 2018.                               Under the first procedure, the person              has determined that these special
                                             FOR FURTHER INFORMATION CONTACT:                         submits a 510(k) for a device that has                controls, in addition to the general
                                             Kristen Bowsher, Center for Devices and                  not previously been classified. After                 controls, will provide reasonable
                                             Radiological Health, Food and Drug                       receiving an order from FDA classifying               assurance of the safety and effectiveness
                                             Administration, 10903 New Hampshire                      the device into class III under section               of the device.
                                             Ave., Bldg. 66, Rm. 2646, Silver Spring,                 513(f)(1) of the FD&C Act, the person                    Therefore, on April 26, 2018, FDA
                                             MD 20993–0002, 301–796–6448,                             then requests a classification under                  issued an order to the requester
                                             Kristen.Bowsher@fda.hhs.gov.                             section 513(f)(2).                                    classifying the device into class II. FDA
                                                                                                         Under the second procedure, rather                 is codifying the classification of the
daltland on DSKBBV9HB2PROD with RULES




                                             SUPPLEMENTARY INFORMATION:
                                                                                                      than first submitting a 510(k) and then               device by adding 21 CFR 882.5897. We
                                             I. Background                                            a request for classification, if the person           have named the generic type of device
                                                Upon request, FDA has classified the                  determines that there is no legally                   external upper limb tremor stimulator,
                                             external upper limb tremor stimulator as                 marketed device upon which to base a                  and it is identified as a prescription
                                             class II (special controls), which we                    determination of substantial                          device that is placed externally on the
                                             have determined will provide a                           equivalence, that person requests a                   upper limb and designed to aid in


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Document Created: 2018-10-17 01:47:50
Document Modified: 2018-10-17 01:47:50
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal order.
DatesThis order is effective October 17, 2018. The classification was applicable on May 13, 2014.
ContactScott McFarland, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4676, Silver Spring, MD, 20993-0002, 301- 796-6217, [email protected]
FR Citation83 FR 52313 

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