Effective Date of Requirement for Premarket Approval for Three Class III Preamendments Devices; Reclassification of Sorbent Hemoperfusion Devices for the Treatment of Poisoning and Drug Overdose, 20268-20277 [2013-07730]
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20268
Proposed Rules
Federal Register
Vol. 78, No. 65
Thursday, April 4, 2013
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
You may submit comments,
identified by Docket No. FDA–2013–N–
0195 by any of the following methods:
ADDRESSES:
21 CFR Parts 876, 882, and 892
[Docket No. FDA–2013–N–0195]
Effective Date of Requirement for
Premarket Approval for Three Class III
Preamendments Devices;
Reclassification of Sorbent
Hemoperfusion Devices for the
Treatment of Poisoning and Drug
Overdose
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Proposed order.
The Food and Drug
Administration (FDA) is issuing a
proposed administrative order to require
the filing of a premarket approval
application (PMA) or a notice of
completion of a product development
protocol (PDP) for the following three
class III preamendments devices:
Sorbent hemoperfusion devices for the
treatment of hepatic coma and
metabolic disturbances; cranial
electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia; and transilluminator for
breast evaluation. FDA is also
announcing the opportunity for
interested persons to request that the
Agency change the classification of any
of the aforementioned devices based on
new information. In addition, FDA is
proposing to reclassify sorbent
hemoperfusion devices for the treatment
of poisoning and drug overdose, a
preamendments class III device, into
class II (special controls) based on new
information respecting the device. This
action implements certain statutory
requirements.
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SUMMARY:
Submit written or electronic
comments on this proposed order by
May 6, 2013. FDA intends that, if a final
order based on this proposed order is
issued, anyone who wishes to continue
to market the sorbent hemoperfusion
DATES:
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devices for the treatment of hepatic
coma and metabolic disturbances;
cranial electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia; or transilluminator for breast
evaluation will need to file a PMA or a
notice of completion of a PDP within 90
days of the effective date of the final
order. See section XIII of this document
for the proposed effective date of any
final order that may publish based on
this proposed order.
Electronic Submissions
Submit electronic comments in the
following way:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Written Submissions
Submit written submissions in the
following way:
• Mail/Hand delivery/Courier [For
paper, disk, or CD–ROM submissions]:
Division of Dockets Management (HFA–
305), Food and Drug Administration,
5630 Fishers Lane, Rm. 1061, Rockville,
MD 20852.
Instructions: All submissions received
must include the Agency name and
Docket Number FDA–2013–N–0195 for
this action. All comments received may
be posted without change to https://
www.regulations.gov, including any
personal information provided. For
additional information on submitting
comments, see the ‘‘Comments’’ heading
of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to
read background documents or
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 Division of Dockets
Management, 5630 Fishers Lane, rm.
1061, Rockville, MD 20852.
FOR FURTHER INFORMATION CONTACT:
Michael Ryan, Center for Devices and
Radiological Health, Food and Drug
Administration, 10903 New Hampshire
Ave., Bldg. 66, Rm. 1615, Silver Spring,
MD 20993, 301–796–6283.
SUPPLEMENTARY INFORMATION:
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I. Background-Regulatory Authorities
The Federal Food, Drug, and Cosmetic
Act (the FD&C Act), as amended by the
Medical Device Amendments of 1976
(the 1976 amendments) (Pub. L. 94–
295), the Safe Medical Devices Act of
1990 (Pub. L. 101–629), the Food and
Drug Administration Modernization Act
of 1997 (FDAMA) (Pub. L. 105–115), the
Medical Device User Fee and
Modernization Act of 2002 (Pub. L. 107–
250), the Medical Devices Technical
Corrections Act (Pub. L. 108–214), the
Food and Drug Administration
Amendments Act of 2007 (Pub. L. 110–
85), and the Food and Drug
Administration Safety and Innovation
Act (FDASIA) (Pub. L. 112–144), among
other amendments, established a
comprehensive system for the regulation
of medical devices intended for human
use. Section 513 of the FD&C Act (21
U.S.C. 360c) established three categories
(classes) of devices, reflecting the
regulatory controls needed to provide
reasonable assurance of their safety and
effectiveness. The three categories of
devices are class I (general controls),
class II (special controls), and class III
(premarket approval).
Under section 513(d) of the FD&C Act,
devices that were in commercial
distribution before the enactment of the
1976 amendments, May 28, 1976
(generally referred to as preamendments
devices), are classified after FDA has: (1)
Received a recommendation from a
device classification panel (an FDA
advisory committee); (2) published the
panel’s recommendation for comment,
along with a proposed regulation
classifying the device; and (3) published
a final regulation classifying the device.
FDA has classified most
preamendments devices under these
procedures.
Devices that were not in commercial
distribution prior to May 28, 1976
(generally referred to as
postamendments devices), are
automatically classified by section
513(f) of the FD&C Act into class III
without any FDA rulemaking process.
Those devices remain in class III and
require premarket approval unless, and
until, the device is reclassified into class
I or II or FDA issues an order finding the
device to be substantially equivalent, in
accordance with section 513(i) of the
FD&C Act, to a predicate device that
does not require premarket approval.
The Agency determines whether new
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devices are substantially equivalent to
predicate devices by means of
premarket notification procedures in
section 510(k) of the FD&C Act (21
U.S.C. 360(k)) and 21 CFR part 807.
A preamendments device that has
been classified into class III and devices
found substantially equivalent by means
of premarket notification (510(k))
procedures to such a preamendments
device or to a device within that type
(both the preamendments and
substantially equivalent devices are
referred to as preamendments class III
devices) may be marketed without
submission of a PMA until FDA takes
final action under section 515(b) of the
FD&C Act (21 U.S.C. 360e(b)) requiring
premarket approval.
Although, under the FD&C Act, the
manufacturer of class III
preamendments device may respond to
the call for PMAs by filing a PMA or a
notice of completion of a product
development protocol (PDP), in
practice, the option of filing a notice of
completion of a PDP has not been used.
For simplicity, although corresponding
requirements for PDPs remain available
to manufacturers in response to a final
order under section 515(b) of the FD&C
Act, this document will refer only to the
requirement for the filing and receiving
approval of a PMA.
On July 9, 2012, FDASIA was enacted.
Section 608(b) of FDASIA (126 Stat.
1056) amended section 515(b) of the
FD&C Act changing the process for
requiring premarket approval for a
preamendments class III device from
rulemaking to an administrative order.
Prior to the enactment of FDASIA, FDA
published four proposed rules under
section 515(b) to require PMAs for the
sorbent hemoperfusion devices for the
treatment of hepatic coma and
metabolic disturbances; cranial
electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia; shortwave diathermy for all
uses other than the generation of deep
heat within the body tissues for the
treatment of selected medical
conditions; and transilluminator for
breast evaluation (76 FR 48062, August
8, 2011; 77 FR 9610, February 17, 2012;
77 FR 39953, July 6, 2012; 75 FR 52294,
August 25, 2010). FDA is issuing this
proposed administrative order to
comply with the new procedural
requirement created by FDASIA when
requiring premarket approval for
preamendments class III devices.
Shortwave diathermy for all uses other
than the generation of deep heat within
the body tissues for the treatment of
selected medical conditions is not
included in this proposed
administrative order due to an
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approaching panel meeting on the
classification of this device scheduled
for April 5, 2013 (77 FR 71195,
November 29, 2012). Because of the
level of interest in the classification of
shortwave diathermy for all uses other
than the generation of deep heat within
the body tissues for the treatment of
selected medical conditions and
because this technology was last
considered by a panel December 13,
1979, FDA is electing to hold the panel
meeting required by sections 513(e) and
515(b) of the FD&C Act before issuing a
proposed order on this device. FDA
believes a new panel meeting will be
useful to consider significant new
developments in the technology class III
shortwave diathermy devices use since
that time and the large volume of new
information on the use of these devices.
In addition, the 1979 Panel’s
deliberations focused on class II
shortwave diathermy devices that
achieve their affect through use of
therapeutic deep heat instead of those
class III shortwave diathermy devices
that are the subject of FDA’s July 6,
2012, proposed rule.
Comments submitted in response to
the proposed rules on sorbent
hemoperfusion devices for the treatment
of hepatic coma and metabolic
disturbances; cranial electrotherapy
stimulator for the treatment of
depression, anxiety, and insomnia; and
transilluminator for breast evaluation
will be considered under this proposed
administrative order and do not need to
be resubmitted. Similarly, FDA
continues to review the merits of the
requests for reclassification submitted in
response to the proposed rules. Any
preliminary decisions on those requests
are not reflected in this proposed
administrative order to require the filing
of a PMA for sorbent hemoperfusion
devices for the treatment of hepatic
coma and metabolic disturbances;
cranial electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia; and transilluminator for
breast evaluation. This action is
intended solely to fulfill the procedural
requirements for reclassification
implemented by FDASIA.
Section 515(b)(1) of the FD&C Act sets
forth the process for issuing a final
administrative order. Specifically, prior
to the issuance of a final order requiring
premarket approval for a
preamendments class III device, the
following must occur: Publication of a
proposed order in the Federal Register;
a meeting of a device classification
panel described in section 513(b) of the
FD&C Act; and consideration of
comments from all affected
stakeholders, including patients, payors,
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and providers. FDA has held a meeting
of a device classification panel
described in section 513(b) of the FD&C
Act with respect to cranial
electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia and transilluminator for breast
evaluation, and therefore, has met this
requirement under section 515(b)(1) of
the FD&C Act.
Section 515(b)(2) of the FD&C Act
provides that a proposed order to
require premarket approval shall
contain: (1) The proposed order, (2)
proposed findings with respect to the
degree of risk of illness or injury
designed to be eliminated or reduced by
requiring the device to have an
approved PMA and the benefit to the
public from the use of the device, (3) an
opportunity for the submission of
comments on the proposed order and
the proposed findings, and (4) an
opportunity to request a change in the
classification of the device based on
new information relevant to the
classification of the device.
Section 515(b)(3) of the FD&C Act
provides that FDA shall, after the close
of the comment period on the proposed
order, consideration of any comments
received, and a meeting of a device
classification panel described in section
513(b) of the FD&C Act, issue a final
order to require premarket approval or
publish a document terminating the
proceeding together with the reasons for
such termination. If FDA terminates the
proceeding, FDA is required to initiate
reclassification of the device under
section 513(e) of the FD&C Act, unless
the reason for termination is that the
device is a banned device under section
516 of the FD&C Act (21 U.S.C. 360(f).
A preamendments class III device
may be commercially distributed
without a PMA until 90 days after FDA
issues a final order (a final rule issued
under section 515(b) of the FD&C Act
prior to the enactment of FDASIA is
considered to be a final order for
purposes of section 501(f) of the FD&C
Act (21 U.S.C. 351(f))) requiring
premarket approval for the device, or 30
months after final classification of the
device under section 513 of the FD&C
Act, whichever is later. For the
preamendments class III devices that are
the subject of this proposal, the later of
these two time periods is the 90-day
period. Since the sorbent
hemoperfusion devices for the treatment
of hepatic coma and metabolic
disturbances; cranial electrotherapy
stimulator for the treatment of
depression, anxiety, and insomnia; and
transilluminator for breast evaluation
were classified in 1983, 1979, and 1995,
respectively, the 30-month period has
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expired (48 FR 53028, November 23,
1983; 44 FR 51770, September 4, 1979;
and 60 FR 36639, July 18, 1995,
respectively). Therefore, if the proposal
to require premarket approval for
sorbent hemoperfusion devices for the
treatment of hepatic coma and
metabolic disturbances; cranial
electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia; or transilluminator for breast
evaluation is finalized, section
501(f)(2)(B) of the FD&C Act requires
that a PMA for such device be filed
within 90 days of the date of issuance
of the final order. If a PMA is not filed
for such device within 90 days after the
issuance of a final order, the device
would be deemed adulterated under
section 501(f) of the FD&C Act.
Also, a preamendments device subject
to the order process under section
515(b) of the FD&C Act is not required
to have an approved investigational
device exemption (IDE) (see part 812 (21
CFR part 812)) contemporaneous with
its interstate distribution until the date
identified by FDA in the final order
requiring the filing of a PMA for the
device. At that time, an IDE is required
only if a PMA has not been filed. If the
manufacturer, importer, or other
sponsor of the device submits an IDE
application and FDA approves it, the
device may be distributed for
investigational use. If a PMA is not filed
by the later of the two dates, and the
device is not distributed for
investigational use under an IDE, the
device is deemed to be adulterated
within the meaning of section
501(f)(1)(A) of the FD&C Act, and
subject to seizure and condemnation
under section 304 of the FD&C Act (21
U.S.C. 334) if its distribution continues.
Other enforcement actions include, but
are not limited to, the following:
Shipment of devices in interstate
commerce will be subject to injunction
under section 302 of the FD&C Act (21
U.S.C. 332), and the individuals
responsible for such shipment will be
subject to prosecution under section 303
of the FD&C Act (21 U.S.C. 333). In the
past, FDA has requested that
manufacturers take action to prevent the
further use of devices for which no PMA
has been filed and may determine that
such a request is appropriate for the
class III devices that are the subject of
this proposed order, if finalized.
In accordance with section 515(b)(2)
of the FD&C Act, interested persons are
being offered the opportunity to request
reclassification of sorbent
hemoperfusion devices for the treatment
of hepatic coma and metabolic
disturbances; cranial electrotherapy
stimulator for the treatment of
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depression, anxiety, and insomnia; and
transilluminator for breast evaluation
that are the subject of this proposal.
Requests for reclassification previously
submitted in response to the proposed
rules (76 FR 48062, August 8, 2011; 75
FR 52294, August 25, 2010; 77 FR 9610,
February 17, 2012) will be considered
under this proposed administrative
order and do not need to be
resubmitted.
Along with proposing to require
PMAs for sorbent hemoperfusion
devices for the treatment of hepatic
coma and metabolic disturbances;
cranial electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia; and transilluminator for
breast evaluation, FDA is also
publishing this document to propose the
reclassification of sorbent
hemoperfusion devices for the treatment
of poisoning and drug overdose from
class III to class II. Section 513(e) of the
FD&C Act governs reclassification of
classified preamendments devices. This
section provides that FDA may, by
administrative order, reclassify a device
based upon ‘‘new information.’’ FDA
can initiate a reclassification under
section 513(e) or an interested person
may petition FDA to reclassify a
preamendments device. The term ‘‘new
information,’’ as used in section 513(e)
of the FD&C Act, includes information
developed as a result of a reevaluation
of the data before the Agency when the
device was originally classified, as well
as information not presented, not
available, or not developed at that time.
(See, e.g., Holland-Rantos Co. v. United
States Department of Health, Education,
and Welfare, 587 F.2d 1173, 1174 n.1
(D.C. Cir. 1978); Upjohn v. Finch, 422
F.2d 944 (6th Cir. 1970); Bell v.
Goddard, 366 F.2d 177 (7th Cir. 1966).)
Reevaluation of the data previously
before the Agency is an appropriate
basis for subsequent action where the
reevaluation is made in light of newly
available authority (see Bell, 366 F.2d at
181; Ethicon, Inc. v. FDA, 762 F. Supp.
382, 388–91 (D.D.C. 1991)), or in light
of changes in ‘‘medical science’’
(Upjohn, 422 F.2d at 951). Whether data
before the Agency are old or new data,
the ‘‘new information’’ to support
reclassification under section 513(e)
must be ‘‘valid scientific evidence,’’ as
defined in section 513(a)(3) of the FD&C
Act and 21 CFR 860.7(c)(2). (See, e.g.,
General Medical Co. v. FDA, 770 F.2d
214 (D.C. Cir. 1985); Contact Lens
Association v. FDA, 766 F.2d 592 (D.C.
Cir. 1985), cert. denied, 474 U.S. 1062
(1986).)
FDA relies upon ‘‘valid scientific
evidence’’ in the classification process
to determine the level of regulation for
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devices. To be considered in the
reclassification process, the ‘‘valid
scientific evidence’’ upon which the
Agency relies must be publicly
available. Publicly available information
excludes trade secret and/or
confidential commercial information,
e.g., the contents of a pending PMA.
(See section 520(c) of the FD&C Act (21
U.S.C. 360j(c)).) Section 520(h)(4) of the
FD&C Act (21 U.S.C. 360j(h)(4)), added
by FDAMA, provides that FDA may use,
for reclassification of a device, certain
information in a PMA 6 years after the
application has been approved. This
includes information from clinical and
preclinical tests or studies that
demonstrate the safety or effectiveness
of the device but does not include
descriptions of methods of manufacture
or product composition and other trade
secrets.
On July 9, 2012, FDASIA was enacted.
Section 608(a) of FDASIA (126 Stat.
1056) amended section 513(e) of the
FD&C Act changing the process for
reclassifying a preamendments class III
device from rulemaking to an
administrative order. Prior to the
enactment of FDASIA, FDA published a
proposed rule under section 513(e)
proposing the reclassification of sorbent
hemoperfusion devices for the treatment
of poisoning and drug overdose. The
same device is the subject of this
proposed order so that FDA can comply
with the new procedural requirement
created by FDASIA when reclassifying a
preamendments class III device.
Section 513(e)(1) of the FD&C Act sets
forth the process for issuing a final
order. Specifically, prior to the issuance
of a final order reclassifying a device,
the following must occur: (1)
Publication of a proposed order in the
Federal Register; (2) a meeting of a
device classification panel described in
section 513(b) of the FD&C Act; and (3)
consideration of comments to a public
docket.
FDAMA added section 510(m) to the
FD&C Act. Section 510(m) of the FD&C
Act provides that a class II device may
be exempted from the premarket
notification requirements under section
510(k) of the FD&C Act, if the Agency
determines that premarket notification
is not necessary to assure the safety and
effectiveness of the device.
II. Dates New Requirements Apply
In accordance with section 515(b) of
the FD&C Act, FDA is proposing to
require that a PMA be filed with the
Agency for three preamendments class
III devices, sorbent hemoperfusion
devices for the treatment of hepatic
coma and metabolic disturbances;
cranial electrotherapy stimulator for the
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treatment of depression, anxiety, and
insomnia; and transilluminator for
breast evaluation, within 90 days after
issuance of any final order based on this
proposal. An applicant whose device
was legally in commercial distribution
before May 28, 1976, or whose device
has been found to be substantially
equivalent to such a device, will be
permitted to continue marketing such
class III device during FDA’s review of
the PMA provided that the PMA is
timely filed. FDA intends to review any
PMA for the device within 180 days of
the date of filing. FDA cautions that
under section 515(d)(1)(B)(i) of the
FD&C Act, the Agency may not enter
into an agreement to extend the review
period for a PMA beyond 180 days
unless the Agency finds that ‘‘the
continued availability of the device is
necessary for the public health.’’
FDA intends that under § 812.2(d), the
publication in the Federal Register of
any final order based on this proposal
will include a statement that, as of the
date on which a PMA is required to be
filed, the exemptions from the
requirements of the IDE regulations for
preamendments class III devices in
§ 812.2(c)(1) and (c)(2) will cease to
apply to any device that is: (1) Not
legally on the market on or before that
date or (2) legally on the market on or
before that date but for which a PMA is
not filed by that date, or for which PMA
approval has been denied or withdrawn.
If a PMA for a class III device is not
filed with FDA within 90 days after the
date of issuance of any final order
requiring premarket approval for the
device, the device would be deemed
adulterated under section 501(f) of the
FD&C Act. The device may be
distributed for investigational use only
if the requirements of the IDE
regulations are met. The requirements
for significant risk devices include
submitting an IDE application to FDA
for review and approval. An approved
IDE is required to be in effect before an
investigation of the device may be
initiated or continued under § 812.30.
FDA, therefore, recommends that IDE
applications be submitted to FDA at
least 30 days before the end of the 90day period after the issuance of the final
order to avoid interrupting any ongoing
investigations.
Because sorbent hemoperfusion
devices for the treatment of poisoning
and drug overdose can currently be
marketed after receiving clearance of an
application for premarket notification
and FDA is proposing to reclassify these
devices as class II requiring clearance of
an application for premarket
notification, this order, if finalized, will
not impose any new requirements on
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sorbent hemoperfusion devices for the
treatment of poisoning and drug
overdose.
III. Proposed Findings With Respect to
Risks and Benefits for Devices Subject
to the Proposal To Require PMA
As required by section 515(b) of the
FD&C Act, FDA is publishing its
proposed findings regarding: (1) The
degree of risk of illness or injury
designed to be eliminated or reduced by
requiring that these devices have an
approved PMA and (2) the benefits to
the public from the use of the devices.
These findings are based on the
reports and recommendations of the
advisory committee (panel) for the
classification of these devices along
with information submitted in response
to the 515(i) Order (74 FR 16214, April
9, 2009), and any additional information
that FDA has obtained. Additional
information regarding the risks as well
as classification associated with these
device types can be found in the
following proposed and final rules and
notices published in the Federal
Register: Cranial electrotherapy
stimulator for the treatment of
depression, anxiety, and insomnia, 43
FR 55716 (November 28, 1974), 44 FR
51770 (September 4, 1979), 54 FR 550
(January 6, 1989), 58 FR 45865 (August
31, 1993), 60 FR 43967 (August 24,
1995), 61 FR 59448 (November 22,
1996), 62 FR 4023 (January 28, 1997), 62
FR 30456 and 62 FR 30600 (June 4,
1997), and 76 FR 48062 (August 8,
2011); classification of transilluminators
(Diaphanoscopes or Lightscanners) for
breast evaluation, 60 FR 3168 (January
13, 1995), 60 FR 36639 (July 18, 1995),
and 75 FR 52294, (August 25, 2010); and
sorbent hemoperfusion for the treatment
of hepatic coma and metabolic
disturbances (46 FR 7630, 46 FR 7562,
and 48 FR 53023).
The proposed findings concerning the
degree of risk of illness or injury for
each of these devices is set out in
section IV, as well as information
concerning known benefits, if any for
these devices. FDA notes, however, that
there is limited scientific evidence
regarding the effectiveness of the
sorbent hemoperfusion devices for the
treatment of hepatic coma and
metabolic disturbances; cranial
electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia; and transilluminator for
breast evaluation devices. Because the
benefits of these devices for the
indications specified are unknown, it is
impossible to estimate the direct effect
of the devices on patient outcomes.
However, claims for the devices state
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the devices have the potential to benefit
the public in the following ways:
• Cranial electrotherapy stimulator
for the treatment of depression, anxiety,
and insomnia. CES devices are
marketed as a treatment for insomnia,
anxiety, or depression (either symptoms
thereof or the underlying disorder).
• Sorbent hemoperfusion devices for
the treatment of hepatic coma and
metabolic disturbances. Disorders that
affect the liver can result in metabolic
disturbances and a decrease in brain
function due to the accumulation of
toxins in the blood. This reduced brain
function may eventually result in
hepatic coma and death. Sorbent
hemoperfusion systems are marketed as
a treatment device to compensate for
liver failure by removing toxins from the
blood.
• Transilluminator for breast
evaluation. Transilluminator for breast
evaluation is marketed as an aid in
breast self examination as an addition to
normal breast health routine by
visualizing translucent tissue for the
diagnosis of cancer, other conditions,
diseases, or abnormalities.
IV. Devices Subject to the Proposal To
Require PMA
A. Sorbent Hemoperfusion System for
the Treatment of Hepatic Coma and
Metabolic Disturbances (21 CFR
876.5870(c))
1. Identification
A sorbent hemoperfusion system is a
device that consists of an extracorporeal
blood system and a container filled with
adsorbent material that removes a wide
range of substances, both toxic and
normal, from blood flowing through it.
The adsorbent materials are usually
activated-carbon or resins, which may
be coated or immobilized to prevent fine
particles entering the patient’s blood.
The generic type of device may include
lines and filters specifically designed to
connect the device to the extracorporeal
blood system. Sorbent hemoperfusion
systems may also include the machine
or instrument used to drive and manage
blood and fluid flow within the
extracorporeal circuit, as well as any
accompanying controllers, monitors, or
sensors.
2. Summary of Data
For the treatment of hepatic coma and
metabolic disturbances, FDA concludes
that the safety and effectiveness of these
devices have not been established by
adequate scientific evidence, and the
Agency continues to agree with the
Gastroenterology-Urology Device
Panel’s recommendation. The review of
the published scientific literature
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revealed mostly observational studies
performed with sorbent hemoperfusion
devices. Only a few randomized,
controlled trials were found, but sample
sizes were small and not adequately
powered, and etiologies and control
group criteria were varied. Furthermore,
based on FDA’s experience reviewing
these devices for use in the treatment of
hepatic coma and metabolic
disturbances, bench testing is not
adequate in establishing the devices’
safety and effectiveness, particularly
since characterizing a sorbent
hemoperfusion system’s performance
and adsorption capabilities has not
correlated to patient outcomes, such as
resolution of the patients’ hepatic coma,
or improvements in mortality. The
scientific literature also revealed that
there is no consensus on the clinical
endpoints necessary to adequately
evaluate sorbent hemoperfusion devices
for the treatment of hepatic coma and
metabolic disturbances or on the patient
populations who will benefit the most
from the use of these devices.
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3. Risks to Health
• Extracorporeal leaks (blood loss)—
Rupture of the extracorporeal circuit,
cartridge, filters, and/or tubing, as well
as disconnections, may lead to blood
leaks and blood loss.
• Platelet loss and
thrombocytopenia—The adsorption
characteristics of the device may cause
large losses of platelets during
hemoperfusion.
• Leukopenia—The materials used, or
the design of the device, may cause
absorption of leukocytes, leading to the
transient loss of leukocytes in a patient.
• Hemolysis—The materials used, or
the design of the blood pathways in the
device, may cause the lysis of red blood
cells.
• Leak of adsorbent agent into fluid
path (release of emboli)—Fine particles
leached from the sorbent column of the
device may be deposited in the
arterioles of the lungs and other organ
as particulate emboli.
• Lack of sterility—Improper
sterilization or compromise of the
device packaging may lead to the
introduction of microorganisms, which
may be transmitted to a patient during
use.
• Toxic and/or pyrogenic reactions—
Toxic substances may be leached from
the device, causing a patient to have a
pyrogenic reaction (sudden fever with
collapse and chills).
• Infection—Defects in the design or
construction of the device preventing
adequate cleaning and/or sterilization
may allow pathogenic organisms to be
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introduced and may cause an infection
in a patient.
• Hypotension—Sudden fluid shifts
within the patient, due to pressures
exerted by the device, or to fluid being
removed by the device, may cause
sudden decreases in a patient’s blood
pressure.
• Lack of biocompatibility in
materials or solutions contacting
blood—The patient-contacting materials
of the device may cause an adverse
immunological or allergic reaction in a
patient.
• Clotting (blood loss)—The materials
used, or the design of the device, may
cause a patient’s blood to form clots,
which may obstruct the device’s
extracorporeal circuit, interrupting or
terminating treatments, and also leading
to blood loss, because the blood
entrapped in the clotted blood circuit
often cannot be returned to the patient.
• Removal or depletion of vital
nutrients, hormones, vitamins,
substances. and drugs (e.g., adsorption
of glucose, unspecific removal
characteristics, drop in patients’
hematocrit), due to device’s lack of
specificity—The adsorption
characteristics of the device may cause
removal or depletions of nutrients,
hormones, and other necessary
substances.
• Metabolic disturbances—The
removal of normal metabolites along
with undesirable substances may lead to
metabolic disturbances.
• Lack of effectiveness—The
adsorption characteristics of the device
may lead to the failure to remove drugs
in the treatment of poisoning or drug
overdose, or to bring on clinical
improvement in hepatic coma and
metabolic disturbances.
• Treatment interruptions or
discontinuations—Inadequate
safeguards in the device may lead to
treatment interruptions or
discontinuations in the case of power
failures.
• Electrical shock due to lack of
electrical safety—Inadequate safeguards
in the device may lead to electrical
shocks in patients using them.
• Electromagnetic interference, which
may lead to adverse interactions with
other patient systems—Inadequate
safeguards in the device may lead to its
interference with other patient systems,
causing adverse events in the patient, as
well as adversely affecting the
performance of the other patient
systems.
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B. Cranial Electrotherapy Stimulator (21
CFR 882.5800)
1. Identification
A cranial electrotheraphy stimulator
is a device that applies electrical current
to a patient’s head to treat depression,
anxiety, or insomnia.
2. Summary of Data
The Neurological Devices Panel that
discussed original classification for the
cranial electrotherapy stimulator (CES)
device in 1977 and 1978 ultimately
recommended that the device be
classified into class III because
satisfactory device effectiveness had not
been demonstrated. The panel
considered information from the
National Research Council, which
reviewed 88 published studies on CES
and concluded that the device has not
been shown to be effective in treating
any of the conditions for which it was
prescribed. In addition, the panel
indicated that it was not possible to
establish an adequate performance
standard for CES because the
characteristics of the electrical current
necessary for potential effectiveness
were not known. The panel believed
that general controls would not provide
sufficient control over these
characteristics, and that the device
presented a potential unreasonable risk
of illness or injury to the patient if the
practitioner relied on the device, and it
was ineffective in treating the patient’s
illness. Therefore, the panel
recommended that premarket approval
was necessary to assure the safety and
effectiveness of CES devices.
In support of a subsequent proposed
rule in 1993 for classification of CES
into class III, FDA performed a literature
review and identified additional studies
that had been performed for CES. After
a review of the scientific literature, FDA
concluded that the effectiveness of CES
had still not been established by
adequate scientific evidence. While this
rule was finalized in 1995 (60 FR
43969), it was withdrawn in 1997 (62
FR 30456). FDA performed additional
literature searches for studies of CES
published after the 1993 proposed rule
in support of the proposed rule to retain
CES devices in class III and a call for
PMAs issued on August 8, 2011 (76 FR
48062), as well as in preparation for the
panel meeting described in the
paragraphs that follow.
FDA received three petitions
requesting a change in the classification
of CES devices in response to the
August 8, 2011, proposed rule (76 FR
48062). FDA received a petition from
Electromedical Products International,
Inc., dated August 19, 2011 [FDA–2011–
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N–0504–0029], requesting the Agency to
reclassify from class III into class II the
CES for the ‘‘treatment of insomnia,
depression, or anxiety.’’ FDA received
petitions from Fisher Wallace
Laboratories, LLC, dated August 22,
2011 [FDA–2011–N–0504–0031], and
Neuro-Fitness LLC, dated August 22,
2011 [FDA–2011–N–0504–0033], both
requesting the Agency to reclassify from
class III into class II the CES for the
‘‘treatment of depression, anxiety, and
insomnia in adult substance abuse
patients who have failed to achieve
satisfactory improvement from one prior
antidepressant or sleep medication at or
above the minimal effective dose and
duration in the current episode, or are
unable to tolerate such medication.’’
The petition from Neuro-Fitness also
mentioned ‘‘general treatment of
anxiety, depression, and insomnia as
part of an approved program of medical
care when conventional approaches
have failed or are deemed
inappropriate’’ and ‘‘treatment of the
primary symptoms of substance abuse:
Anxiety, depression, and insomnia
when conventional approaches have
failed or are deemed inappropriate.’’
FDA continues to review the merits of
the previous requests for reclassification
submitted in response to the proposed
rules and any preliminary decisions on
those requests are not reflected in this
proposed administrative order
proposing to require the filing of a PMA
for the cranial electrotherapy stimulator
device for the treatment of depression,
anxiety, and insomnia.
Consistent with then-section
515(b)(2)(B) of the FD&C Act as it stood
at the time and 21 CFR 860.125, FDA
referred the petitions to the Panel for its
recommendation on the requested
change in classification in February
2012. FDA provided the panel members
with the three reclassification petitions
and FDA’s executive summary (Ref. 1).
Based on its review of the data and
information as well as information
presented during its February 10, 2012,
open meeting (Ref. 2), the Neurological
Devices Panel recommended that the
CES device for treatment of insomnia,
depression, and anxiety should remain
in class III requiring PMAs. The Panel
consensus was that there was not
adequate scientific evidence to provide
a reasonable assurance of effectiveness
for the CES device for any of the
indications proposed by the petitioners.
Although the panel expressed some
reservations regarding several of the
risks that FDA had identified as being
associated with CES, the Panel
consensus was that given the lack of
adequate effectiveness data, the
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probable benefits of the CES device did
not outweigh the probable risks. The
Panel also suggested that the list of risks
in the proposed rule was not accurate.
While there was consensus for
including the risks of skin irritation,
headaches, and dizziness, the panel did
not agree that seizures and blurred
vision were risks associated with CES as
it is characterized today by the devices
on the market and the comparable
devices studied in clinical trials. The
Panel also suggested that worsening of
the condition being treated, though a
risk, could be adequately addressed
through patient supervision by a
medical professional.
While the panel did not recommend
a classification for the focused
indication in the substance abuse
population for which two petitioners
requested class II, the panel concluded
that the substance abuse population did
adequately define a target population
and that there were no significant
additional risks associated with use of
the device in the substance abuse
population as compared to the
population of patients who are not
substance abusers. The panel also
recommended there was not adequate
scientific evidence to provide a
reasonable assurance of effectiveness for
the CES device for treatment of
insomnia, depression, or anxiety in the
substance abuse population.
3. Risks to Health
• Worsening of the condition being
treated—If the device is not effective
and the patient is not treated in a
conventional manner, the patient’s
psychological condition may worsen.
• Skin irritation—The electrodes or
the conductive cream used with the
electrodes may cause skin irritation.
• Headaches—Reported cases of
adverse effects of CES devices include
headaches following treatment with
electrical stimulation.
• Potential adverse effects from
electrical stimulation of the brain—The
physiological effects associated with
electrical stimulation of the brain by
these devices have not been studied
systematically; therefore, adverse effects
which may be caused by these electrical
stimuli remain unknown.
C. Transilluminator for Breast
Evaluation (21 CFR 892.1990)
1. Identification
A transilluminator, also known as a
diaphanoscope or lightscanner, is an
electrically powered device that uses
low intensity emissions of visible light
and near-infrared radiation
(approximately 700–1050 nanometers
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(nm)), transmitted through the breast, to
visualize translucent tissue for the
diagnosis of cancer, other conditions,
diseases, or abnormalities.
2. Summary of Data
On January 11, 1991, the Obstetrics
and Gynecology Devices Panel
recommended that transilluminator
devices for breast evaluation be
classified into class III and subject to
premarket approval to provide
reasonable assurance of the safety and
effectiveness of the device. The panel
concluded that there were no published
studies or clinical data demonstrating
the safety and effectiveness of the
device. The panel indicated that the
device presents a potential unreasonable
risk of illness or injury to the patient if
the clinician relies on the device and
that although the device’s illumination
level, wavelength, and image quality
can be controlled through tests and
specifications, insufficient evidence
exists to determine that special controls
can be established to provide reasonable
assurance of the safety and effectiveness
of the device for its intended use.
In addition, the Radiologic Devices
Panel considered the classification of
the device on April 12, 2012 (Ref. 3),
and expressed concerns regarding the
effectiveness of the device which may
result in delayed diagnosis and
determined that general controls and
special controls are not sufficient to
provide a reasonable assurance of safety
and effectiveness of the device for the
diagnosis of cancer, other conditions,
diseases, or abnormalities. Accordingly,
the panel concluded that the device
should remain in class III. FDA agreed
and continues to agree with the
recommendations of both panels and is
aware of no information submitted in
response to the 515(i) Order (74 FR
16214, April 9, 2009) or otherwise
available to FDA that would support a
different classification. The Agency
notes that the device has fallen into
disuse and that the published data are
not adequate to demonstrate the safety
and effectiveness of the device.
3. Risks to Health
a. Missed or delayed diagnosis—As a
result of the questionable device
performance of breast transilluminators,
missed or delayed diagnosis are the
most catastrophic risks to health for a
woman. These devices depend on the
users’ visual interpretation of their own
breast illumination. One scenario may
result when a woman incorrectly
interprets her transillumination as a
tumor and suffers the ensuing anxiety
from her belief that she has a cancer.
Another scenario may result when a
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woman incorrectly dismisses the
findings of her transillumination and
then suffers from a missed diagnosis or
delayed diagnosis and delayed
treatment. Ultimately, missed or
delayed diagnoses could result in the
need for more aggressive treatment and
a potentially higher risk of death.
b. Electrical shock—If a breast
transilluminator is not designed
properly, the user may receive an
electrical shock.
c. Optical radiation—Prolonged
gazing directly into the light of a breast
illuminator while engaged in ‘‘bright
light mode’’ may result in retinal
damage.
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V. PMA Requirements
A PMA for sorbent hemoperfusion
devices for the treatment of hepatic
coma and metabolic disturbances;
cranial electrotherapy stimulator for the
treatment of depression, anxiety, or
insomnia; and transilluminator for
breast evaluation must include the
information required by section
515(c)(1) of the FD&C Act. Such a PMA
should also include a detailed
discussion of the risks identified
previously, as well as a discussion of
the effectiveness of the device for which
premarket approval is sought. In
addition, a PMA must include all data
and information on: (1) Any risks
known, or that should be reasonably
known, to the applicant that have not
been identified in this document; (2) the
effectiveness of the device that is the
subject of the application; and (3) full
reports of all preclinical and clinical
information from investigations on the
safety and effectiveness of the device for
which premarket approval is sought.
A PMA must include valid scientific
evidence to demonstrate reasonable
assurance of the safety and effectiveness
of the device for its intended use (see
§ 860.7(c)(1) (21 CFR 860.7(c)(1))). Valid
scientific evidence is ‘‘evidence from
well-controlled investigations, partially
controlled studies, studies and objective
trials without matched controls, welldocumented case histories conducted by
qualified experts, and reports of
significant human experience with a
marketed device, from which it can
fairly and responsibly be concluded by
qualified experts that there is reasonable
assurance of the safety and effectiveness
of a device under its conditions of use
* * * Isolated case reports, random
experience, reports lacking sufficient
details to permit scientific evaluation,
and unsubstantiated opinions are not
regarded as valid scientific evidence to
show safety or effectiveness.’’ (see
§ 860.7(c)(2)).
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VI. Opportunity To Request a Change in
Classification
Before requiring the filing of a PMA
for a device, FDA is required by section
515(b)(2)(D) of the FD&C Act to provide
an opportunity for interested persons to
request a change in the classification of
the device based on new information
relevant to the classification. Any
proceeding to reclassify the device will
be under the authority of section 513(e)
of the FD&C Act.
A request for a change in the
classification of sorbent hemoperfusion
devices for the treatment of hepatic
coma and metabolic disturbances;
cranial electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia; and transilluminator for
breast evaluation devices is to be in the
form of a reclassification petition
containing the information required by
21 CFR 860.123, including new
information relevant to the classification
of the device.
Requests for reclassification
submitted in response to the proposed
rules will be considered under this
proposed administrative order and do
not need to be resubmitted. FDA
continues to review the merits of the
previous requests for reclassification
submitted in response to the proposed
rules and any preliminary decisions on
those requests are not reflected in this
proposed administrative order
proposing to require the filing of a PMA
for sorbent hemoperfusion devices for
the treatment of hepatic coma and
metabolic disturbances; cranial
electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia; and transilluminator for
breast evaluation.
VII. Proposed Reclassification
FDA is proposing that sorbent
hemoperfusion systems intended for the
treatment of poisoning and drug
overdose be reclassified from class III to
class II. FDA is also proposing to create
a separate classification for these
devices to differentiate them from
sorbent hemoperfusion systems for the
treatment of hepatic coma and
metabolic disturbances. FDA believes
sorbent hemoperfusion devices for the
treatment of poisoning and drug
overdose can be useful in the treatment
of emergent poisoning and drug
overdose events by reducing the level of
related toxic substances in the
bloodstream, thereby reducing or
preventing damage to the liver and
resultant negative patient outcomes.
FDA has considered sorbent
hemoperfusion systems intended for the
treatment of poisoning and drug
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overdose in accordance with the
reserved criteria and determined that
these devices require premarket
notification. The Agency does not
intend to exempt this proposed class II
device from premarket notification
(510(k)) submission as provided for
under section 510(m) of the FD&C Act.
VIII. Summary of Reasons for
Reclassification
FDA believes that sorbent
hemoperfusion systems intended for the
treatment of poisoning and drug
overdose should be reclassified into
class II because special controls, in
addition to general controls, are
necessary to provide reasonable
assurance of the safety and effectiveness
of the device. In addition, there is now
sufficient information to establish
special controls to provide such
assurance.
IX. Summary of Data Upon Which the
Reclassification is Based
FDA believes that the identified
special controls, in addition to general
controls, are necessary to provide
reasonable assurance of safety and
effectiveness. Therefore, in accordance
with sections 513(e) and 515(i) of the
FD&C Act and 21 CFR 860.130, based on
new information with respect to the
device, FDA, on its own initiative, is
proposing to reclassify this
preamendments class III device
intended for the treatment of poisoning
and drug overdose into class II. The
Agency has identified special controls
that would provide reasonable
assurance of their safety and
effectiveness. Sorbent hemoperfusion
systems intended for the treatment of
poisoning and drug overdose are
prescription devices restricted to patient
use only upon the authorization of a
practitioner licensed by law to
administer or use the device. (Proposed
§ 876.5870(a); see section 520(e) of the
FD&C Act and 21 CFR 801.109
(Prescription devices)). Prescription-use
restrictions are a type of general controls
authorized under section 520(e) and
defined as a general control in section
513(a)(1)(A)(i) of the FD&C Act.
Sorbent hemoperfusion is used in a
small number of poisoning and drug
overdose cases each year. Due to the
emergent nature of poisoning and drug
overdose events, it is expected that the
published clinical literature is limited
and that randomized, controlled,
clinical trials are not practical to
conduct. Since the time of the original
Gastroenterology-Urology Device
Classification Panel recommendation in
1981, sufficient new evidence has been
developed to support a reclassification
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of sorbent hemoperfusion system to
class II with special controls for the
treatment of poisoning and hepatic
coma. There is valid scientific evidence
which demonstrate that these devices
are of clinical value in treating
poisoning and drug overdose patients
(Refs. 4 to 11). In this patient
population, which is often relatively
healthy prior to the poisoning or
overdose event, quick removal of the
poison or drug can greatly impact
clinical outcomes, whereas in the
hepatic coma and encephalopathy
population, which typically exhibit
severe underlying disease,
comorbidities, and high mortality there
is no substantive evidence on what
substances need to be removed or
decreased to bring on patient
improvements or change clinical
outcomes.
Unlike sorbent hemoperfusion
devices for the treatment of hepatic
coma and metabolic disturbances,
appropriate bench testing
methodologies have also been
developed to provide assurance that the
device can remove a particular poison
or drug from the bloodstream. FDA has
developed sufficient confidence in these
bench tests via review of 510(k)
submissions for these devices. In
addition, a review of the available
literature, FDA’s MAUDE adverse event
reporting database, and the
manufacturer’s submission to the 515(i)
docket (74 FR 16214, April 9, 2009) did
not present evidence of significant
reports of adverse events associated
with the use of the sorbent
hemoperfusion despite the longstanding
use of these devices.
Given the low occurrence of adverse
events, the valid scientific evidence to
support sorbent hemoperfusion for this
use, and FDA’s review experience with
these devices, FDA believes that the
identified special controls, including
performance testing to ensure that the
device is effective in removing
particular poisons or drugs and is
adequately designed and includes
adequate safeguards, and labeling to
inform users of inappropriate use
conditions, in addition to general
controls, provide reasonable assurance
of effectiveness for this device for the
treatment of poisoning and drug
overdose.
X. Environmental Impact
The Agency has determined under 21
CFR 25.30(h) and 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
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environmental impact statement is
required.
XI. Paperwork Reduction Act of 1995
This proposed order refers to
collections of information that 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 21
CFR part 814 have been approved under
OMB control number 0910–0231. The
collections of information in 21 CFR
part 807, subpart E, have been approved
under OMB control number 0910–0120.
The effect of this order, if finalized, is
to shift certain devices from the 510(k)
premarket notification process to the
PMA process. To account for this
change, FDA intends to transfer some of
the burden from OMB control number
0910–0120, which is the control number
for the 510(k) premarket notification
process, to OMB control number 0910–
0231, which is the control number for
the PMA process. FDA estimates that it
will receive 16 new PMAs as a result of
this order, if finalized. Based on FDA’s
most recent estimates, this will result in
a 4,842 hour burden increase. FDA also
estimates that there will be 14 fewer
510(k) submissions as a result of this
order, if finalized, because two
manufacturers have not introduced their
device to market yet. Based on FDA’s
most recent estimates, this will result in
a 726 hour burden decrease. Therefore,
on net, FDA expects a burden hour
increase of 4,116 due to this proposed
regulatory change.
The collections of information in part
812 have been approved under OMB
control number 0910–0078.
XII. Codification of Orders
Prior to the amendments by FDASIA,
section 513(e) of the FD&C Act provided
for FDA to issue regulations to reclassify
devices and section 515(b) of the FD&C
Act provided for FDA to issue
regulations to require approval of an
application for premarket approval for
preamendments devices or devices
found to be substantially equivalent to
preamendments devices. Because
sections 513(e) and 515(b) as amended
require FDA to issue final orders rather
than regulations, FDA will continue to
codify reclassifications and
requirements for approval of an
application for premarket approval,
resulting from changes issued in final
orders, in the Code of Federal
Regulations. Therefore, under section
513(e)(1)(A)(i) of the FD&C Act, as
amended by FDASIA, in this proposed
order, we are proposing to revoke the
requirements in 21 CFR 876.5870
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related to the classification of sorbent
hemoperfusion devices for the treatment
of poisoning and drug overdose as class
III devices and to codify the
reclassification of sorbent
hemoperfusion devices for the treatment
of poisoning and drug overdose into
class II.
XIII. Proposed Effective Date
FDA is proposing that any final order
based on this proposed order become
effective 90 days after date of
publication of the final order in the
Federal Register.
XIV. Comments
Comments submitted to the previous
dockets for the relevant devices (cranial
electrotherapy stimulator for the
treatment of depression, anxiety, and
insomnia FDA–2011–N–0504;
transilluminator for breast evaluation
FDA–2010–N–0412; sorbent
hemoperfusion devices to treat hepatic
coma and metabolic disturbances; and
sorbent hemoperfusion devices for the
treatment FDA–2012–M–0076) have
been officially noted and do not need to
be resubmitted. FDA will consider
previous docket comments in issuing
any final orders for these devices.
Interested persons may submit either
written comments regarding this
document to the Division of Dockets
Management (see ADDRESSES) or
electronic comments to https://
www.regulations.gov. It is only
necessary to send one set of comments.
Identify comments with the docket
number found in brackets in the
heading of this document. Received
comments may be seen in the Division
of Dockets Management between 9 a.m.
and 4 p.m., Monday through Friday, and
will be posted to the docket at https://
www.regulations.gov.
XV. References
The following references have been
placed on display in the Division of
Dockets Management (see ADDRESSES),
and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday
through Friday, and are available
electronically at https://
www.regulations.gov. (FDA has verified
the Web site addresses, but we are not
responsible for any subsequent changes
to the Web sites after this document
publishes in the Federal Register.)
1. FDA Executive Summary prepared for the
February 10, 2012, meeting of the
Neurologic Devices Panel—Petitions to
Request Change in Classification for
Cranial Electrotherapy Stimulators.
2. Transcript, Center for Devices and
Radiological Health Medical Devices
Advisory Committee, Neurological
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Devices Panel, February 10, 2012, 8 a.m.,
Hilton Washington DC North, 620 Perry
Pkwy., Gaithersburg, MD. Available at
https://www.fda.gov/
AdvisoryCommittees/Calendar/
ucm279941.htm.
3. Transcript, Center for Devices and
Radiological Health Medical Devices
Advisory Committee, Radiological
Devices Panel, April 12, 2012, 8 a.m.,
Hilton Washington DC North, 620 Perry
Pkwy., Gaithersburg, MD. Available at
https://www.fda.gov/
AdvisoryCommittees/Calendar/
ucm293275.htm.
4. Evenepoel, P., et al., ‘‘Detoxifying Capacity
and Kinetics of the Molecular Adsorbent
Recycling System, Contribution of the
Different Inbuilt Filters.’’ Blood
Purification, 21(3): p. 244–52, 2003.
5. Ash, S. R., et al., ‘‘Treatment of
Acetaminophen-Induced Hepatitis and
Fulminant Hepatic Failure With
Extracorporeal Sorbent-Based Devices,’’
Advances in Renal Replacement
Therapy, 9(1): p. 42–53, 2002.
6. Akdogan, M., et al., ‘‘Experience With
Liver Dialysis in Acetaminophen
Induced Fulminant Hepatic Failure: A
Preliminary Report,’’ Turkish Journal of
Gastroenterology, 14(3): p. 164–7, 2003.
7. Ash, S. R., et al., ‘‘Treatment of Severe
Tricyclic Antidepressant Overdose With
Extracorporeal Sorbent Detoxification.’’
Advances in Renal Replacement
Therapy, 9(1): p. 31–41, 2002.
8. De Schoenmakere, G., et al., ‘‘Phenytoin
Intoxication in Critically Ill Patients,’’
American Journal of Kidney Diseases,
45(1): p. 189–92, 2005.
9. Covic, A., et al., ‘‘Successful Use of
Molecular Absorbent Regenerating
System (MARS) Dialysis for the
Treatment of Fulminant Hepatic Failure
in Children Accidentally Poisoned by
Toxic Mushroom Ingestion,’’ Liver
International, 23 Suppl 3: p. 21–7, 2003.
10. Shi, Y., et al., ‘‘MARS: Optimistic
Therapy Method in Fulminant Hepatic
Failure Secondary to Cytotoxic
Mushroom Poisoning—A Case Report,’’
Liver, 22 Suppl 2: p. 78–80, 2002.
11. Wu, B .F. and M. M. Wang, Molecular
Adsorbent Recirculating System In
Dealing With Maternal Amanita
Poisoning During the Second Pregnancy
Trimester: A Case Report, Hepatobiliary
and Pancreatic Diseases International,
3(1): p. 152–4, 2004.
List of Subjects
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
21 CFR Part 876
Medical devices.
21 CFR Part 882
Medical devices, Neurological
devices.
21 CFR Part 892
Medical devices, Radiation
protection, X-rays.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
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14:46 Apr 03, 2013
Jkt 229001
of Food and Drugs, it is proposed that
21 CFR parts 876, 882, and 892 be
amended as follows:
PART 876—GASTROENTEROLOGYUROLOGY DEVICES
1. The authority citation for 21 CFR
part 876 continues to read as follows:
■
Authority: 21 U.S.C. 351, 360, 360c, 360e,
360j, 360l, 371.
2. Section 876.5870 is revised to read
as follows:
■
§ 876.5870
system.
Sorbent hemoperfusion
(a) Identification. A sorbent
hemoperfusion system is a prescription
device that consists of an extracorporeal
blood system similar to that identified
in the hemodialysis system and
accessories (§ 876.5820) and a container
filled with adsorbent material that
removes a wide range of substances,
both toxic and normal, from blood
flowing through it. The adsorbent
materials are usually activated-carbon or
resins which may be coated or
immobilized to prevent fine particles
entering the patient’s blood. The generic
type of device may include lines and
filters specifically designed to connect
the device to the extracorporeal blood
system. The device is used in the
treatment of poisoning, drug overdose,
hepatic coma, or metabolic
disturbances.
(b) Classification. (1) Class II (special
controls) when the device is intended
for the treatment of poisoning and drug
overdose. The special controls for this
device are:
(i) The device must be demonstrated
to be biocompatible;
(ii) Performance data to demonstrate
the mechanical integrity of the device
(e.g., tensile, flexural, and structural
strength), including testing for the
possibility of leaks, ruptures, release of
particles, and/or disconnections;
(iii) Performance data to demonstrate
device sterility and shelf life;
(iv) Bench performance data to
demonstrate device functionality in
terms of substances, toxins, and drugs
removed by the device, and the extent
that these are removed when the device
is used according to its labeling, and to
validate the device’s safeguards;
(v) Summary of clinical experience
with the device that discusses and
analyzes device safety and performance,
including a list of adverse events
observed during the testing;
(vi) Labeling controls, including
appropriate warnings, precautions,
cautions, and contraindications
statements to alert and inform users of
proper device use and potential clinical
PO 00000
Frm 00009
Fmt 4702
Sfmt 4702
adverse effects, including blood loss,
platelet loss, leukopenia, hemolysis,
hypotension, clotting, metabolic
disturbances, and loss of vital nutrients
and substances; labeling
recommendations must be consistent
with the performance data obtained for
the device, and must include a list of
the drugs and/or poisons the device has
been demonstrated to remove, and the
extent for removal/depletion; and
(vii) For those devices that
incorporate electrical components,
appropriate analysis and testing to
validate electrical safety and
electromagnetic compatibility.
(2) Class III (premarket approval)
when the device is intended for the
treatment of hepatic coma and
metabolic disturbances.
(c) Date premarket approval
application (PMA) or notice of
completion of product development
protocol (PDP) is required. A PMA or
notice of completion of a PDP is
required to be filed with FDA by [DATE
90 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL ORDER
IN THE FEDERAL REGISTER], for any
sorbent hemoperfusion system indicated
for treatment of hepatic coma or
metabolic disturbances that was in
commercial distribution before May 28,
1976, or that has, by [DATE 90 DAYS
AFTER DATE OF PUBLICATION OF
THE FINAL ORDER IN THE FEDERAL
REGISTER], been found to be
substantially equivalent to any sorbent
hemoperfusion device indicated for
treatment of hepatic coma or metabolic
disturbances that was in commercial
distribution before May 28, 1976. Any
other sorbent hemoperfusion system
device indicated for treatment of hepatic
coma or metabolic disturbances shall
have an approved PMA or declared
completed PDP in effect before being
placed in commercial distribution.
PART 882—NEUROLOGICAL DEVICES
3. The authority citation for 21 CFR
part 882 continues to read as follows:
■
Authority: 21 U.S.C. 351, 360, 360c, 360e,
360j, 371.
4. Section 882.5800 is amended by
revising paragraph (c) to read as follows:
■
§ 882.5800 Cranial electrotherapy
stimulator.
*
*
*
*
*
(c) Date PMA or notice of completion
of PDP is required. A PMA or notice of
completion of a PDP is required to be
filed with the Food and Drug
Administration by [A DATE WILL BE
ADDED 90 DAYS AFTER DATE OF
PUBLICATION OF A FUTURE FINAL
ORDER IN THE FEDERAL REGISTER],
E:\FR\FM\04APP1.SGM
04APP1
Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Proposed Rules
for any cranial electrotherapy stimulator
device that was in commercial
distribution before May 28, 1976, or that
has, by [A DATE WILL BE ADDED 90
DAYS AFTER DATE OF PUBLICATION
OF A FUTURE FINAL ORDER IN THE
FEDERAL REGISTER], been found to be
substantially equivalent to any cranial
electrotherapy stimulator device that
was in commercial distribution before
May 28, 1976. Any other cranial
electrotherapy stimulator device shall
have an approved PMA or declared
completed PDP in effect before being
placed in commercial distribution.
DEPARTMENT OF HOMELAND
SECURITY
PART 892—RADIOLOGY DEVICES
The Coast Guard proposes to
add, delete, and modify safety zones
and special local regulations and add
language to clarify time frames and
notification requirements for annual
marine events in the Sector Long Island
Sound Captain of the Port (COTP) Zone.
When these regulated areas are activated
and subject to enforcement, this rule
would restrict vessels from portions of
water areas during these recurring
events. The safety zones and special
local regulations will facilitate public
notification of events and provide
protective measures for the maritime
public and event participants from the
hazards associated with these recurring
events.
DATES: Comments and related material
must be received by the Coast Guard on
or before May 6, 2013.
Requests for public meetings must be
received by the Coast Guard on or before
April 25, 2013.
ADDRESSES: You may submit comments
identified by docket number using any
one of the following methods:
(1) Federal eRulemaking Portal:
https://www.regulations.gov.
(2) Fax: 202–493–2251.
(3) Mail or Delivery: Docket
Management Facility (M–30), U.S.
Department of Transportation, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590–0001. Deliveries
accepted between 9 a.m. and 5 p.m.,
Monday through Friday, except federal
holidays. The telephone number is 202–
366–9329.
See the ‘‘Public Participation and
Request for Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for further instructions on
submitting comments. To avoid
duplication, please use only one of
these three methods.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Petty Officer Joseph Graun,
Waterways Management Division at
Authority: 21 U.S.C. 351, 360, 360c, 360e,
360j, 371.
6. Section 892.1990 is amended by
revising paragraph (c) to read as follows:
■
§ 892.1990 Transilluminator for breast
evaluation.
*
*
*
*
(c) Date PMA or notice of completion
of PDP is required. A PMA or notice of
completion of a PDP is required to be
filed with the Food and Drug
Administration by [A DATE WILL BE
ADDED 90 DAYS AFTER DATE OF
PUBLICATION OF A FUTURE FINAL
ORDER IN THE FEDERAL REGISTER],
for any transilluminator for breast
evaluation that was in commercial
distribution before May 28, 1976, or that
has, by [A DATE WILL BE ADDED 90
DAYS AFTER DATE OF PUBLICATION
OF A FUTURE FINAL ORDER IN THE
FEDERAL REGISTER], been found to be
substantially equivalent to any
transilluminator for breast evaluation
that was in commercial distribution
before May 28, 1976. Any other
transilluminator for breast evaluation
shall have an approved PMA or
declared completed PDP in effect before
being placed in commercial
distribution.
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
*
Dated: March 29, 2013.
Peter Lurie,
Acting Associate Commissioner for Policy and
Planning.
BILLING CODE 4160–01–P
VerDate Mar<15>2010
17:25 Apr 03, 2013
Jkt 229001
33 CFR Parts 100 and 165
[Docket No. USCG–2012–1036]
RIN 1625–AA00; 1625–AA08
Coast Guard Sector Long Island Sound,
telephone 203–468–4544, email
joseph.l.graun@uscg.mil. If you have
questions on viewing or submitting
material to the docket, call Barbara
Hairston, Program Manager, Docket
Operations, telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
Safety Zones & Special Local
Regulations; Recurring Marine Events
in Captain of the Port Long Island
Sound Zone
Coast Guard, DHS.
Notice of Proposed Rulemaking.
AGENCY:
ACTION:
SUMMARY:
5. The authority citation for 21 CFR
part 892 continues to read as follows:
■
[FR Doc. 2013–07730 Filed 4–3–13; 8:45 am]
Coast Guard
20277
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Frm 00010
Fmt 4702
Sfmt 4702
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
A. Public Participation and Request for
Comments
We encourage you to participate in
this rulemaking by submitting
comments and related materials. All
comments received will be posted
without change to https://
www.regulations.gov and will include
any personal information you have
provided.
1. Submitting comments
If you submit a comment, please
include the docket number for this
rulemaking, indicate the specific section
of this document to which each
comment applies, and provide a reason
for each suggestion or recommendation.
You may submit your comments and
material online at https://
www.regulations.gov, or by fax, mail, or
hand delivery, but please use only one
of these means. If you submit a
comment online, it will be considered
received by the Coast Guard when you
successfully transmit the comment. If
you fax, hand deliver, or mail your
comment, it will be considered as
having been received by the Coast
Guard when it is received at the Docket
Management Facility. We recommend
that you include your name and a
mailing address, an email address, or a
telephone number in the body of your
document so that we can contact you if
we have questions regarding your
submission.
To submit your comment online, go to
https://www.regulations.gov, type the
docket number [USCG–2012–1036] in
the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on ‘‘Submit a
Comment’’ on the line associated with
this rulemaking.
If you submit your comments by mail
or hand delivery, submit them in an
unbound format, no larger than 81⁄2 by
11 inches, suitable for copying and
electronic filing. If you submit
comments by mail and would like to
know that they reached the Facility,
please enclose a stamped, self-addressed
postcard or envelope. We will consider
all comments and material received
E:\FR\FM\04APP1.SGM
04APP1
Agencies
[Federal Register Volume 78, Number 65 (Thursday, April 4, 2013)]
[Proposed Rules]
[Pages 20268-20277]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07730]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 /
Proposed Rules
[[Page 20268]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 876, 882, and 892
[Docket No. FDA-2013-N-0195]
Effective Date of Requirement for Premarket Approval for Three
Class III Preamendments Devices; Reclassification of Sorbent
Hemoperfusion Devices for the Treatment of Poisoning and Drug Overdose
AGENCY: Food and Drug Administration, HHS.
ACTION: Proposed order.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is issuing a proposed
administrative order to require the filing of a premarket approval
application (PMA) or a notice of completion of a product development
protocol (PDP) for the following three class III preamendments devices:
Sorbent hemoperfusion devices for the treatment of hepatic coma and
metabolic disturbances; cranial electrotherapy stimulator for the
treatment of depression, anxiety, and insomnia; and transilluminator
for breast evaluation. FDA is also announcing the opportunity for
interested persons to request that the Agency change the classification
of any of the aforementioned devices based on new information. In
addition, FDA is proposing to reclassify sorbent hemoperfusion devices
for the treatment of poisoning and drug overdose, a preamendments class
III device, into class II (special controls) based on new information
respecting the device. This action implements certain statutory
requirements.
DATES: Submit written or electronic comments on this proposed order by
May 6, 2013. FDA intends that, if a final order based on this proposed
order is issued, anyone who wishes to continue to market the sorbent
hemoperfusion devices for the treatment of hepatic coma and metabolic
disturbances; cranial electrotherapy stimulator for the treatment of
depression, anxiety, and insomnia; or transilluminator for breast
evaluation will need to file a PMA or a notice of completion of a PDP
within 90 days of the effective date of the final order. See section
XIII of this document for the proposed effective date of any final
order that may publish based on this proposed order.
ADDRESSES: You may submit comments, identified by Docket No. FDA-2013-
N-0195 by any of the following methods:
Electronic Submissions
Submit electronic comments in the following way:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Written Submissions
Submit written submissions in the following way:
Mail/Hand delivery/Courier [For paper, disk, or CD-ROM
submissions]: Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Instructions: All submissions received must include the Agency name
and Docket Number FDA-2013-N-0195 for this action. All comments
received may be posted without change to https://www.regulations.gov,
including any personal information provided. For additional information
on submitting comments, see the ``Comments'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
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 Division of
Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
FOR FURTHER INFORMATION CONTACT: Michael Ryan, Center for Devices and
Radiological Health, Food and Drug Administration, 10903 New Hampshire
Ave., Bldg. 66, Rm. 1615, Silver Spring, MD 20993, 301-796-6283.
SUPPLEMENTARY INFORMATION:
I. Background-Regulatory Authorities
The Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended
by the Medical Device Amendments of 1976 (the 1976 amendments) (Pub. L.
94-295), the Safe Medical Devices Act of 1990 (Pub. L. 101-629), the
Food and Drug Administration Modernization Act of 1997 (FDAMA) (Pub. L.
105-115), the Medical Device User Fee and Modernization Act of 2002
(Pub. L. 107-250), the Medical Devices Technical Corrections Act (Pub.
L. 108-214), the Food and Drug Administration Amendments Act of 2007
(Pub. L. 110-85), and the Food and Drug Administration Safety and
Innovation Act (FDASIA) (Pub. L. 112-144), among other amendments,
established a comprehensive system for the regulation of medical
devices intended for human use. Section 513 of the FD&C Act (21 U.S.C.
360c) established three categories (classes) of devices, reflecting the
regulatory controls needed to provide reasonable assurance of their
safety and effectiveness. The three categories of devices are class I
(general controls), class II (special controls), and class III
(premarket approval).
Under section 513(d) of the FD&C Act, devices that were in
commercial distribution before the enactment of the 1976 amendments,
May 28, 1976 (generally referred to as preamendments devices), are
classified after FDA has: (1) Received a recommendation from a device
classification panel (an FDA advisory committee); (2) published the
panel's recommendation for comment, along with a proposed regulation
classifying the device; and (3) published a final regulation
classifying the device. FDA has classified most preamendments devices
under these procedures.
Devices that were not in commercial distribution prior to May 28,
1976 (generally referred to as postamendments devices), are
automatically classified by section 513(f) of the FD&C Act into class
III without any FDA rulemaking process. Those devices remain in class
III and require premarket approval unless, and until, the device is
reclassified into class I or II or FDA issues an order finding the
device to be substantially equivalent, in accordance with section
513(i) of the FD&C Act, to a predicate device that does not require
premarket approval. The Agency determines whether new
[[Page 20269]]
devices are substantially equivalent to predicate devices by means of
premarket notification procedures in section 510(k) of the FD&C Act (21
U.S.C. 360(k)) and 21 CFR part 807.
A preamendments device that has been classified into class III and
devices found substantially equivalent by means of premarket
notification (510(k)) procedures to such a preamendments device or to a
device within that type (both the preamendments and substantially
equivalent devices are referred to as preamendments class III devices)
may be marketed without submission of a PMA until FDA takes final
action under section 515(b) of the FD&C Act (21 U.S.C. 360e(b))
requiring premarket approval.
Although, under the FD&C Act, the manufacturer of class III
preamendments device may respond to the call for PMAs by filing a PMA
or a notice of completion of a product development protocol (PDP), in
practice, the option of filing a notice of completion of a PDP has not
been used. For simplicity, although corresponding requirements for PDPs
remain available to manufacturers in response to a final order under
section 515(b) of the FD&C Act, this document will refer only to the
requirement for the filing and receiving approval of a PMA.
On July 9, 2012, FDASIA was enacted. Section 608(b) of FDASIA (126
Stat. 1056) amended section 515(b) of the FD&C Act changing the process
for requiring premarket approval for a preamendments class III device
from rulemaking to an administrative order. Prior to the enactment of
FDASIA, FDA published four proposed rules under section 515(b) to
require PMAs for the sorbent hemoperfusion devices for the treatment of
hepatic coma and metabolic disturbances; cranial electrotherapy
stimulator for the treatment of depression, anxiety, and insomnia;
shortwave diathermy for all uses other than the generation of deep heat
within the body tissues for the treatment of selected medical
conditions; and transilluminator for breast evaluation (76 FR 48062,
August 8, 2011; 77 FR 9610, February 17, 2012; 77 FR 39953, July 6,
2012; 75 FR 52294, August 25, 2010). FDA is issuing this proposed
administrative order to comply with the new procedural requirement
created by FDASIA when requiring premarket approval for preamendments
class III devices. Shortwave diathermy for all uses other than the
generation of deep heat within the body tissues for the treatment of
selected medical conditions is not included in this proposed
administrative order due to an approaching panel meeting on the
classification of this device scheduled for April 5, 2013 (77 FR 71195,
November 29, 2012). Because of the level of interest in the
classification of shortwave diathermy for all uses other than the
generation of deep heat within the body tissues for the treatment of
selected medical conditions and because this technology was last
considered by a panel December 13, 1979, FDA is electing to hold the
panel meeting required by sections 513(e) and 515(b) of the FD&C Act
before issuing a proposed order on this device. FDA believes a new
panel meeting will be useful to consider significant new developments
in the technology class III shortwave diathermy devices use since that
time and the large volume of new information on the use of these
devices. In addition, the 1979 Panel's deliberations focused on class
II shortwave diathermy devices that achieve their affect through use of
therapeutic deep heat instead of those class III shortwave diathermy
devices that are the subject of FDA's July 6, 2012, proposed rule.
Comments submitted in response to the proposed rules on sorbent
hemoperfusion devices for the treatment of hepatic coma and metabolic
disturbances; cranial electrotherapy stimulator for the treatment of
depression, anxiety, and insomnia; and transilluminator for breast
evaluation will be considered under this proposed administrative order
and do not need to be resubmitted. Similarly, FDA continues to review
the merits of the requests for reclassification submitted in response
to the proposed rules. Any preliminary decisions on those requests are
not reflected in this proposed administrative order to require the
filing of a PMA for sorbent hemoperfusion devices for the treatment of
hepatic coma and metabolic disturbances; cranial electrotherapy
stimulator for the treatment of depression, anxiety, and insomnia; and
transilluminator for breast evaluation. This action is intended solely
to fulfill the procedural requirements for reclassification implemented
by FDASIA.
Section 515(b)(1) of the FD&C Act sets forth the process for
issuing a final administrative order. Specifically, prior to the
issuance of a final order requiring premarket approval for a
preamendments class III device, the following must occur: Publication
of a proposed order in the Federal Register; a meeting of a device
classification panel described in section 513(b) of the FD&C Act; and
consideration of comments from all affected stakeholders, including
patients, payors, and providers. FDA has held a meeting of a device
classification panel described in section 513(b) of the FD&C Act with
respect to cranial electrotherapy stimulator for the treatment of
depression, anxiety, and insomnia and transilluminator for breast
evaluation, and therefore, has met this requirement under section
515(b)(1) of the FD&C Act.
Section 515(b)(2) of the FD&C Act provides that a proposed order to
require premarket approval shall contain: (1) The proposed order, (2)
proposed findings with respect to the degree of risk of illness or
injury designed to be eliminated or reduced by requiring the device to
have an approved PMA and the benefit to the public from the use of the
device, (3) an opportunity for the submission of comments on the
proposed order and the proposed findings, and (4) an opportunity to
request a change in the classification of the device based on new
information relevant to the classification of the device.
Section 515(b)(3) of the FD&C Act provides that FDA shall, after
the close of the comment period on the proposed order, consideration of
any comments received, and a meeting of a device classification panel
described in section 513(b) of the FD&C Act, issue a final order to
require premarket approval or publish a document terminating the
proceeding together with the reasons for such termination. If FDA
terminates the proceeding, FDA is required to initiate reclassification
of the device under section 513(e) of the FD&C Act, unless the reason
for termination is that the device is a banned device under section 516
of the FD&C Act (21 U.S.C. 360(f).
A preamendments class III device may be commercially distributed
without a PMA until 90 days after FDA issues a final order (a final
rule issued under section 515(b) of the FD&C Act prior to the enactment
of FDASIA is considered to be a final order for purposes of section
501(f) of the FD&C Act (21 U.S.C. 351(f))) requiring premarket approval
for the device, or 30 months after final classification of the device
under section 513 of the FD&C Act, whichever is later. For the
preamendments class III devices that are the subject of this proposal,
the later of these two time periods is the 90-day period. Since the
sorbent hemoperfusion devices for the treatment of hepatic coma and
metabolic disturbances; cranial electrotherapy stimulator for the
treatment of depression, anxiety, and insomnia; and transilluminator
for breast evaluation were classified in 1983, 1979, and 1995,
respectively, the 30-month period has
[[Page 20270]]
expired (48 FR 53028, November 23, 1983; 44 FR 51770, September 4,
1979; and 60 FR 36639, July 18, 1995, respectively). Therefore, if the
proposal to require premarket approval for sorbent hemoperfusion
devices for the treatment of hepatic coma and metabolic disturbances;
cranial electrotherapy stimulator for the treatment of depression,
anxiety, and insomnia; or transilluminator for breast evaluation is
finalized, section 501(f)(2)(B) of the FD&C Act requires that a PMA for
such device be filed within 90 days of the date of issuance of the
final order. If a PMA is not filed for such device within 90 days after
the issuance of a final order, the device would be deemed adulterated
under section 501(f) of the FD&C Act.
Also, a preamendments device subject to the order process under
section 515(b) of the FD&C Act is not required to have an approved
investigational device exemption (IDE) (see part 812 (21 CFR part 812))
contemporaneous with its interstate distribution until the date
identified by FDA in the final order requiring the filing of a PMA for
the device. At that time, an IDE is required only if a PMA has not been
filed. If the manufacturer, importer, or other sponsor of the device
submits an IDE application and FDA approves it, the device may be
distributed for investigational use. If a PMA is not filed by the later
of the two dates, and the device is not distributed for investigational
use under an IDE, the device is deemed to be adulterated within the
meaning of section 501(f)(1)(A) of the FD&C Act, and subject to seizure
and condemnation under section 304 of the FD&C Act (21 U.S.C. 334) if
its distribution continues. Other enforcement actions include, but are
not limited to, the following: Shipment of devices in interstate
commerce will be subject to injunction under section 302 of the FD&C
Act (21 U.S.C. 332), and the individuals responsible for such shipment
will be subject to prosecution under section 303 of the FD&C Act (21
U.S.C. 333). In the past, FDA has requested that manufacturers take
action to prevent the further use of devices for which no PMA has been
filed and may determine that such a request is appropriate for the
class III devices that are the subject of this proposed order, if
finalized.
In accordance with section 515(b)(2) of the FD&C Act, interested
persons are being offered the opportunity to request reclassification
of sorbent hemoperfusion devices for the treatment of hepatic coma and
metabolic disturbances; cranial electrotherapy stimulator for the
treatment of depression, anxiety, and insomnia; and transilluminator
for breast evaluation that are the subject of this proposal. Requests
for reclassification previously submitted in response to the proposed
rules (76 FR 48062, August 8, 2011; 75 FR 52294, August 25, 2010; 77 FR
9610, February 17, 2012) will be considered under this proposed
administrative order and do not need to be resubmitted.
Along with proposing to require PMAs for sorbent hemoperfusion
devices for the treatment of hepatic coma and metabolic disturbances;
cranial electrotherapy stimulator for the treatment of depression,
anxiety, and insomnia; and transilluminator for breast evaluation, FDA
is also publishing this document to propose the reclassification of
sorbent hemoperfusion devices for the treatment of poisoning and drug
overdose from class III to class II. Section 513(e) of the FD&C Act
governs reclassification of classified preamendments devices. This
section provides that FDA may, by administrative order, reclassify a
device based upon ``new information.'' FDA can initiate a
reclassification under section 513(e) or an interested person may
petition FDA to reclassify a preamendments device. The term ``new
information,'' as used in section 513(e) of the FD&C Act, includes
information developed as a result of a reevaluation of the data before
the Agency when the device was originally classified, as well as
information not presented, not available, or not developed at that
time. (See, e.g., Holland-Rantos Co. v. United States Department of
Health, Education, and Welfare, 587 F.2d 1173, 1174 n.1 (D.C. Cir.
1978); Upjohn v. Finch, 422 F.2d 944 (6th Cir. 1970); Bell v. Goddard,
366 F.2d 177 (7th Cir. 1966).)
Reevaluation of the data previously before the Agency is an
appropriate basis for subsequent action where the reevaluation is made
in light of newly available authority (see Bell, 366 F.2d at 181;
Ethicon, Inc. v. FDA, 762 F. Supp. 382, 388-91 (D.D.C. 1991)), or in
light of changes in ``medical science'' (Upjohn, 422 F.2d at 951).
Whether data before the Agency are old or new data, the ``new
information'' to support reclassification under section 513(e) must be
``valid scientific evidence,'' as defined in section 513(a)(3) of the
FD&C Act and 21 CFR 860.7(c)(2). (See, e.g., General Medical Co. v.
FDA, 770 F.2d 214 (D.C. Cir. 1985); Contact Lens Association v. FDA,
766 F.2d 592 (D.C. Cir. 1985), cert. denied, 474 U.S. 1062 (1986).)
FDA relies upon ``valid scientific evidence'' in the classification
process to determine the level of regulation for devices. To be
considered in the reclassification process, the ``valid scientific
evidence'' upon which the Agency relies must be publicly available.
Publicly available information excludes trade secret and/or
confidential commercial information, e.g., the contents of a pending
PMA. (See section 520(c) of the FD&C Act (21 U.S.C. 360j(c)).) Section
520(h)(4) of the FD&C Act (21 U.S.C. 360j(h)(4)), added by FDAMA,
provides that FDA may use, for reclassification of a device, certain
information in a PMA 6 years after the application has been approved.
This includes information from clinical and preclinical tests or
studies that demonstrate the safety or effectiveness of the device but
does not include descriptions of methods of manufacture or product
composition and other trade secrets.
On July 9, 2012, FDASIA was enacted. Section 608(a) of FDASIA (126
Stat. 1056) amended section 513(e) of the FD&C Act changing the process
for reclassifying a preamendments class III device from rulemaking to
an administrative order. Prior to the enactment of FDASIA, FDA
published a proposed rule under section 513(e) proposing the
reclassification of sorbent hemoperfusion devices for the treatment of
poisoning and drug overdose. The same device is the subject of this
proposed order so that FDA can comply with the new procedural
requirement created by FDASIA when reclassifying a preamendments class
III device.
Section 513(e)(1) of the FD&C Act sets forth the process for
issuing a final order. Specifically, prior to the issuance of a final
order reclassifying a device, the following must occur: (1) Publication
of a proposed order in the Federal Register; (2) a meeting of a device
classification panel described in section 513(b) of the FD&C Act; and
(3) consideration of comments to a public docket.
FDAMA added section 510(m) to the FD&C Act. Section 510(m) of the
FD&C Act provides that a class II device may be exempted from the
premarket notification requirements under section 510(k) of the FD&C
Act, if the Agency determines that premarket notification is not
necessary to assure the safety and effectiveness of the device.
II. Dates New Requirements Apply
In accordance with section 515(b) of the FD&C Act, FDA is proposing
to require that a PMA be filed with the Agency for three preamendments
class III devices, sorbent hemoperfusion devices for the treatment of
hepatic coma and metabolic disturbances; cranial electrotherapy
stimulator for the
[[Page 20271]]
treatment of depression, anxiety, and insomnia; and transilluminator
for breast evaluation, within 90 days after issuance of any final order
based on this proposal. An applicant whose device was legally in
commercial distribution before May 28, 1976, or whose device has been
found to be substantially equivalent to such a device, will be
permitted to continue marketing such class III device during FDA's
review of the PMA provided that the PMA is timely filed. FDA intends to
review any PMA for the device within 180 days of the date of filing.
FDA cautions that under section 515(d)(1)(B)(i) of the FD&C Act, the
Agency may not enter into an agreement to extend the review period for
a PMA beyond 180 days unless the Agency finds that ``the continued
availability of the device is necessary for the public health.''
FDA intends that under Sec. 812.2(d), the publication in the
Federal Register of any final order based on this proposal will include
a statement that, as of the date on which a PMA is required to be
filed, the exemptions from the requirements of the IDE regulations for
preamendments class III devices in Sec. 812.2(c)(1) and (c)(2) will
cease to apply to any device that is: (1) Not legally on the market on
or before that date or (2) legally on the market on or before that date
but for which a PMA is not filed by that date, or for which PMA
approval has been denied or withdrawn.
If a PMA for a class III device is not filed with FDA within 90
days after the date of issuance of any final order requiring premarket
approval for the device, the device would be deemed adulterated under
section 501(f) of the FD&C Act. The device may be distributed for
investigational use only if the requirements of the IDE regulations are
met. The requirements for significant risk devices include submitting
an IDE application to FDA for review and approval. An approved IDE is
required to be in effect before an investigation of the device may be
initiated or continued under Sec. 812.30. FDA, therefore, recommends
that IDE applications be submitted to FDA at least 30 days before the
end of the 90-day period after the issuance of the final order to avoid
interrupting any ongoing investigations.
Because sorbent hemoperfusion devices for the treatment of
poisoning and drug overdose can currently be marketed after receiving
clearance of an application for premarket notification and FDA is
proposing to reclassify these devices as class II requiring clearance
of an application for premarket notification, this order, if finalized,
will not impose any new requirements on sorbent hemoperfusion devices
for the treatment of poisoning and drug overdose.
III. Proposed Findings With Respect to Risks and Benefits for Devices
Subject to the Proposal To Require PMA
As required by section 515(b) of the FD&C Act, FDA is publishing
its proposed findings regarding: (1) The degree of risk of illness or
injury designed to be eliminated or reduced by requiring that these
devices have an approved PMA and (2) the benefits to the public from
the use of the devices.
These findings are based on the reports and recommendations of the
advisory committee (panel) for the classification of these devices
along with information submitted in response to the 515(i) Order (74 FR
16214, April 9, 2009), and any additional information that FDA has
obtained. Additional information regarding the risks as well as
classification associated with these device types can be found in the
following proposed and final rules and notices published in the Federal
Register: Cranial electrotherapy stimulator for the treatment of
depression, anxiety, and insomnia, 43 FR 55716 (November 28, 1974), 44
FR 51770 (September 4, 1979), 54 FR 550 (January 6, 1989), 58 FR 45865
(August 31, 1993), 60 FR 43967 (August 24, 1995), 61 FR 59448 (November
22, 1996), 62 FR 4023 (January 28, 1997), 62 FR 30456 and 62 FR 30600
(June 4, 1997), and 76 FR 48062 (August 8, 2011); classification of
transilluminators (Diaphanoscopes or Lightscanners) for breast
evaluation, 60 FR 3168 (January 13, 1995), 60 FR 36639 (July 18, 1995),
and 75 FR 52294, (August 25, 2010); and sorbent hemoperfusion for the
treatment of hepatic coma and metabolic disturbances (46 FR 7630, 46 FR
7562, and 48 FR 53023).
The proposed findings concerning the degree of risk of illness or
injury for each of these devices is set out in section IV, as well as
information concerning known benefits, if any for these devices. FDA
notes, however, that there is limited scientific evidence regarding the
effectiveness of the sorbent hemoperfusion devices for the treatment of
hepatic coma and metabolic disturbances; cranial electrotherapy
stimulator for the treatment of depression, anxiety, and insomnia; and
transilluminator for breast evaluation devices. Because the benefits of
these devices for the indications specified are unknown, it is
impossible to estimate the direct effect of the devices on patient
outcomes. However, claims for the devices state the devices have the
potential to benefit the public in the following ways:
Cranial electrotherapy stimulator for the treatment of
depression, anxiety, and insomnia. CES devices are marketed as a
treatment for insomnia, anxiety, or depression (either symptoms thereof
or the underlying disorder).
Sorbent hemoperfusion devices for the treatment of hepatic
coma and metabolic disturbances. Disorders that affect the liver can
result in metabolic disturbances and a decrease in brain function due
to the accumulation of toxins in the blood. This reduced brain function
may eventually result in hepatic coma and death. Sorbent hemoperfusion
systems are marketed as a treatment device to compensate for liver
failure by removing toxins from the blood.
Transilluminator for breast evaluation. Transilluminator
for breast evaluation is marketed as an aid in breast self examination
as an addition to normal breast health routine by visualizing
translucent tissue for the diagnosis of cancer, other conditions,
diseases, or abnormalities.
IV. Devices Subject to the Proposal To Require PMA
A. Sorbent Hemoperfusion System for the Treatment of Hepatic Coma and
Metabolic Disturbances (21 CFR 876.5870(c))
1. Identification
A sorbent hemoperfusion system is a device that consists of an
extracorporeal blood system and a container filled with adsorbent
material that removes a wide range of substances, both toxic and
normal, from blood flowing through it. The adsorbent materials are
usually activated-carbon or resins, which may be coated or immobilized
to prevent fine particles entering the patient's blood. The generic
type of device may include lines and filters specifically designed to
connect the device to the extracorporeal blood system. Sorbent
hemoperfusion systems may also include the machine or instrument used
to drive and manage blood and fluid flow within the extracorporeal
circuit, as well as any accompanying controllers, monitors, or sensors.
2. Summary of Data
For the treatment of hepatic coma and metabolic disturbances, FDA
concludes that the safety and effectiveness of these devices have not
been established by adequate scientific evidence, and the Agency
continues to agree with the Gastroenterology-Urology Device Panel's
recommendation. The review of the published scientific literature
[[Page 20272]]
revealed mostly observational studies performed with sorbent
hemoperfusion devices. Only a few randomized, controlled trials were
found, but sample sizes were small and not adequately powered, and
etiologies and control group criteria were varied. Furthermore, based
on FDA's experience reviewing these devices for use in the treatment of
hepatic coma and metabolic disturbances, bench testing is not adequate
in establishing the devices' safety and effectiveness, particularly
since characterizing a sorbent hemoperfusion system's performance and
adsorption capabilities has not correlated to patient outcomes, such as
resolution of the patients' hepatic coma, or improvements in mortality.
The scientific literature also revealed that there is no consensus on
the clinical endpoints necessary to adequately evaluate sorbent
hemoperfusion devices for the treatment of hepatic coma and metabolic
disturbances or on the patient populations who will benefit the most
from the use of these devices.
3. Risks to Health
Extracorporeal leaks (blood loss)--Rupture of the
extracorporeal circuit, cartridge, filters, and/or tubing, as well as
disconnections, may lead to blood leaks and blood loss.
Platelet loss and thrombocytopenia--The adsorption
characteristics of the device may cause large losses of platelets
during hemoperfusion.
Leukopenia--The materials used, or the design of the
device, may cause absorption of leukocytes, leading to the transient
loss of leukocytes in a patient.
Hemolysis--The materials used, or the design of the blood
pathways in the device, may cause the lysis of red blood cells.
Leak of adsorbent agent into fluid path (release of
emboli)--Fine particles leached from the sorbent column of the device
may be deposited in the arterioles of the lungs and other organ as
particulate emboli.
Lack of sterility--Improper sterilization or compromise of
the device packaging may lead to the introduction of microorganisms,
which may be transmitted to a patient during use.
Toxic and/or pyrogenic reactions--Toxic substances may be
leached from the device, causing a patient to have a pyrogenic reaction
(sudden fever with collapse and chills).
Infection--Defects in the design or construction of the
device preventing adequate cleaning and/or sterilization may allow
pathogenic organisms to be introduced and may cause an infection in a
patient.
Hypotension--Sudden fluid shifts within the patient, due
to pressures exerted by the device, or to fluid being removed by the
device, may cause sudden decreases in a patient's blood pressure.
Lack of biocompatibility in materials or solutions
contacting blood--The patient-contacting materials of the device may
cause an adverse immunological or allergic reaction in a patient.
Clotting (blood loss)--The materials used, or the design
of the device, may cause a patient's blood to form clots, which may
obstruct the device's extracorporeal circuit, interrupting or
terminating treatments, and also leading to blood loss, because the
blood entrapped in the clotted blood circuit often cannot be returned
to the patient.
Removal or depletion of vital nutrients, hormones,
vitamins, substances. and drugs (e.g., adsorption of glucose,
unspecific removal characteristics, drop in patients' hematocrit), due
to device's lack of specificity--The adsorption characteristics of the
device may cause removal or depletions of nutrients, hormones, and
other necessary substances.
Metabolic disturbances--The removal of normal metabolites
along with undesirable substances may lead to metabolic disturbances.
Lack of effectiveness--The adsorption characteristics of
the device may lead to the failure to remove drugs in the treatment of
poisoning or drug overdose, or to bring on clinical improvement in
hepatic coma and metabolic disturbances.
Treatment interruptions or discontinuations--Inadequate
safeguards in the device may lead to treatment interruptions or
discontinuations in the case of power failures.
Electrical shock due to lack of electrical safety--
Inadequate safeguards in the device may lead to electrical shocks in
patients using them.
Electromagnetic interference, which may lead to adverse
interactions with other patient systems--Inadequate safeguards in the
device may lead to its interference with other patient systems, causing
adverse events in the patient, as well as adversely affecting the
performance of the other patient systems.
B. Cranial Electrotherapy Stimulator (21 CFR 882.5800)
1. Identification
A cranial electrotheraphy stimulator is a device that applies
electrical current to a patient's head to treat depression, anxiety, or
insomnia.
2. Summary of Data
The Neurological Devices Panel that discussed original
classification for the cranial electrotherapy stimulator (CES) device
in 1977 and 1978 ultimately recommended that the device be classified
into class III because satisfactory device effectiveness had not been
demonstrated. The panel considered information from the National
Research Council, which reviewed 88 published studies on CES and
concluded that the device has not been shown to be effective in
treating any of the conditions for which it was prescribed. In
addition, the panel indicated that it was not possible to establish an
adequate performance standard for CES because the characteristics of
the electrical current necessary for potential effectiveness were not
known. The panel believed that general controls would not provide
sufficient control over these characteristics, and that the device
presented a potential unreasonable risk of illness or injury to the
patient if the practitioner relied on the device, and it was
ineffective in treating the patient's illness. Therefore, the panel
recommended that premarket approval was necessary to assure the safety
and effectiveness of CES devices.
In support of a subsequent proposed rule in 1993 for classification
of CES into class III, FDA performed a literature review and identified
additional studies that had been performed for CES. After a review of
the scientific literature, FDA concluded that the effectiveness of CES
had still not been established by adequate scientific evidence. While
this rule was finalized in 1995 (60 FR 43969), it was withdrawn in 1997
(62 FR 30456). FDA performed additional literature searches for studies
of CES published after the 1993 proposed rule in support of the
proposed rule to retain CES devices in class III and a call for PMAs
issued on August 8, 2011 (76 FR 48062), as well as in preparation for
the panel meeting described in the paragraphs that follow.
FDA received three petitions requesting a change in the
classification of CES devices in response to the August 8, 2011,
proposed rule (76 FR 48062). FDA received a petition from
Electromedical Products International, Inc., dated August 19, 2011
[FDA-2011-
[[Page 20273]]
N-0504-0029], requesting the Agency to reclassify from class III into
class II the CES for the ``treatment of insomnia, depression, or
anxiety.'' FDA received petitions from Fisher Wallace Laboratories,
LLC, dated August 22, 2011 [FDA-2011-N-0504-0031], and Neuro-Fitness
LLC, dated August 22, 2011 [FDA-2011-N-0504-0033], both requesting the
Agency to reclassify from class III into class II the CES for the
``treatment of depression, anxiety, and insomnia in adult substance
abuse patients who have failed to achieve satisfactory improvement from
one prior antidepressant or sleep medication at or above the minimal
effective dose and duration in the current episode, or are unable to
tolerate such medication.'' The petition from Neuro-Fitness also
mentioned ``general treatment of anxiety, depression, and insomnia as
part of an approved program of medical care when conventional
approaches have failed or are deemed inappropriate'' and ``treatment of
the primary symptoms of substance abuse: Anxiety, depression, and
insomnia when conventional approaches have failed or are deemed
inappropriate.'' FDA continues to review the merits of the previous
requests for reclassification submitted in response to the proposed
rules and any preliminary decisions on those requests are not reflected
in this proposed administrative order proposing to require the filing
of a PMA for the cranial electrotherapy stimulator device for the
treatment of depression, anxiety, and insomnia.
Consistent with then-section 515(b)(2)(B) of the FD&C Act as it
stood at the time and 21 CFR 860.125, FDA referred the petitions to the
Panel for its recommendation on the requested change in classification
in February 2012. FDA provided the panel members with the three
reclassification petitions and FDA's executive summary (Ref. 1). Based
on its review of the data and information as well as information
presented during its February 10, 2012, open meeting (Ref. 2), the
Neurological Devices Panel recommended that the CES device for
treatment of insomnia, depression, and anxiety should remain in class
III requiring PMAs. The Panel consensus was that there was not adequate
scientific evidence to provide a reasonable assurance of effectiveness
for the CES device for any of the indications proposed by the
petitioners. Although the panel expressed some reservations regarding
several of the risks that FDA had identified as being associated with
CES, the Panel consensus was that given the lack of adequate
effectiveness data, the probable benefits of the CES device did not
outweigh the probable risks. The Panel also suggested that the list of
risks in the proposed rule was not accurate. While there was consensus
for including the risks of skin irritation, headaches, and dizziness,
the panel did not agree that seizures and blurred vision were risks
associated with CES as it is characterized today by the devices on the
market and the comparable devices studied in clinical trials. The Panel
also suggested that worsening of the condition being treated, though a
risk, could be adequately addressed through patient supervision by a
medical professional.
While the panel did not recommend a classification for the focused
indication in the substance abuse population for which two petitioners
requested class II, the panel concluded that the substance abuse
population did adequately define a target population and that there
were no significant additional risks associated with use of the device
in the substance abuse population as compared to the population of
patients who are not substance abusers. The panel also recommended
there was not adequate scientific evidence to provide a reasonable
assurance of effectiveness for the CES device for treatment of
insomnia, depression, or anxiety in the substance abuse population.
3. Risks to Health
Worsening of the condition being treated--If the device is
not effective and the patient is not treated in a conventional manner,
the patient's psychological condition may worsen.
Skin irritation--The electrodes or the conductive cream
used with the electrodes may cause skin irritation.
Headaches--Reported cases of adverse effects of CES
devices include headaches following treatment with electrical
stimulation.
Potential adverse effects from electrical stimulation of
the brain--The physiological effects associated with electrical
stimulation of the brain by these devices have not been studied
systematically; therefore, adverse effects which may be caused by these
electrical stimuli remain unknown.
C. Transilluminator for Breast Evaluation (21 CFR 892.1990)
1. Identification
A transilluminator, also known as a diaphanoscope or lightscanner,
is an electrically powered device that uses low intensity emissions of
visible light and near-infrared radiation (approximately 700-1050
nanometers (nm)), transmitted through the breast, to visualize
translucent tissue for the diagnosis of cancer, other conditions,
diseases, or abnormalities.
2. Summary of Data
On January 11, 1991, the Obstetrics and Gynecology Devices Panel
recommended that transilluminator devices for breast evaluation be
classified into class III and subject to premarket approval to provide
reasonable assurance of the safety and effectiveness of the device. The
panel concluded that there were no published studies or clinical data
demonstrating the safety and effectiveness of the device. The panel
indicated that the device presents a potential unreasonable risk of
illness or injury to the patient if the clinician relies on the device
and that although the device's illumination level, wavelength, and
image quality can be controlled through tests and specifications,
insufficient evidence exists to determine that special controls can be
established to provide reasonable assurance of the safety and
effectiveness of the device for its intended use.
In addition, the Radiologic Devices Panel considered the
classification of the device on April 12, 2012 (Ref. 3), and expressed
concerns regarding the effectiveness of the device which may result in
delayed diagnosis and determined that general controls and special
controls are not sufficient to provide a reasonable assurance of safety
and effectiveness of the device for the diagnosis of cancer, other
conditions, diseases, or abnormalities. Accordingly, the panel
concluded that the device should remain in class III. FDA agreed and
continues to agree with the recommendations of both panels and is aware
of no information submitted in response to the 515(i) Order (74 FR
16214, April 9, 2009) or otherwise available to FDA that would support
a different classification. The Agency notes that the device has fallen
into disuse and that the published data are not adequate to demonstrate
the safety and effectiveness of the device.
3. Risks to Health
a. Missed or delayed diagnosis--As a result of the questionable
device performance of breast transilluminators, missed or delayed
diagnosis are the most catastrophic risks to health for a woman. These
devices depend on the users' visual interpretation of their own breast
illumination. One scenario may result when a woman incorrectly
interprets her transillumination as a tumor and suffers the ensuing
anxiety from her belief that she has a cancer. Another scenario may
result when a
[[Page 20274]]
woman incorrectly dismisses the findings of her transillumination and
then suffers from a missed diagnosis or delayed diagnosis and delayed
treatment. Ultimately, missed or delayed diagnoses could result in the
need for more aggressive treatment and a potentially higher risk of
death.
b. Electrical shock--If a breast transilluminator is not designed
properly, the user may receive an electrical shock.
c. Optical radiation--Prolonged gazing directly into the light of a
breast illuminator while engaged in ``bright light mode'' may result in
retinal damage.
V. PMA Requirements
A PMA for sorbent hemoperfusion devices for the treatment of
hepatic coma and metabolic disturbances; cranial electrotherapy
stimulator for the treatment of depression, anxiety, or insomnia; and
transilluminator for breast evaluation must include the information
required by section 515(c)(1) of the FD&C Act. Such a PMA should also
include a detailed discussion of the risks identified previously, as
well as a discussion of the effectiveness of the device for which
premarket approval is sought. In addition, a PMA must include all data
and information on: (1) Any risks known, or that should be reasonably
known, to the applicant that have not been identified in this document;
(2) the effectiveness of the device that is the subject of the
application; and (3) full reports of all preclinical and clinical
information from investigations on the safety and effectiveness of the
device for which premarket approval is sought.
A PMA must include valid scientific evidence to demonstrate
reasonable assurance of the safety and effectiveness of the device for
its intended use (see Sec. 860.7(c)(1) (21 CFR 860.7(c)(1))). Valid
scientific evidence is ``evidence from well-controlled investigations,
partially controlled studies, studies and objective trials without
matched controls, well-documented case histories conducted by qualified
experts, and reports of significant human experience with a marketed
device, from which it can fairly and responsibly be concluded by
qualified experts that there is reasonable assurance of the safety and
effectiveness of a device under its conditions of use * * * Isolated
case reports, random experience, reports lacking sufficient details to
permit scientific evaluation, and unsubstantiated opinions are not
regarded as valid scientific evidence to show safety or
effectiveness.'' (see Sec. 860.7(c)(2)).
VI. Opportunity To Request a Change in Classification
Before requiring the filing of a PMA for a device, FDA is required
by section 515(b)(2)(D) of the FD&C Act to provide an opportunity for
interested persons to request a change in the classification of the
device based on new information relevant to the classification. Any
proceeding to reclassify the device will be under the authority of
section 513(e) of the FD&C Act.
A request for a change in the classification of sorbent
hemoperfusion devices for the treatment of hepatic coma and metabolic
disturbances; cranial electrotherapy stimulator for the treatment of
depression, anxiety, and insomnia; and transilluminator for breast
evaluation devices is to be in the form of a reclassification petition
containing the information required by 21 CFR 860.123, including new
information relevant to the classification of the device.
Requests for reclassification submitted in response to the proposed
rules will be considered under this proposed administrative order and
do not need to be resubmitted. FDA continues to review the merits of
the previous requests for reclassification submitted in response to the
proposed rules and any preliminary decisions on those requests are not
reflected in this proposed administrative order proposing to require
the filing of a PMA for sorbent hemoperfusion devices for the treatment
of hepatic coma and metabolic disturbances; cranial electrotherapy
stimulator for the treatment of depression, anxiety, and insomnia; and
transilluminator for breast evaluation.
VII. Proposed Reclassification
FDA is proposing that sorbent hemoperfusion systems intended for
the treatment of poisoning and drug overdose be reclassified from class
III to class II. FDA is also proposing to create a separate
classification for these devices to differentiate them from sorbent
hemoperfusion systems for the treatment of hepatic coma and metabolic
disturbances. FDA believes sorbent hemoperfusion devices for the
treatment of poisoning and drug overdose can be useful in the treatment
of emergent poisoning and drug overdose events by reducing the level of
related toxic substances in the bloodstream, thereby reducing or
preventing damage to the liver and resultant negative patient outcomes.
FDA has considered sorbent hemoperfusion systems intended for the
treatment of poisoning and drug overdose in accordance with the
reserved criteria and determined that these devices require premarket
notification. The Agency does not intend to exempt this proposed class
II device from premarket notification (510(k)) submission as provided
for under section 510(m) of the FD&C Act.
VIII. Summary of Reasons for Reclassification
FDA believes that sorbent hemoperfusion systems intended for the
treatment of poisoning and drug overdose should be reclassified into
class II because special controls, in addition to general controls, are
necessary to provide reasonable assurance of the safety and
effectiveness of the device. In addition, there is now sufficient
information to establish special controls to provide such assurance.
IX. Summary of Data Upon Which the Reclassification is Based
FDA believes that the identified special controls, in addition to
general controls, are necessary to provide reasonable assurance of
safety and effectiveness. Therefore, in accordance with sections 513(e)
and 515(i) of the FD&C Act and 21 CFR 860.130, based on new information
with respect to the device, FDA, on its own initiative, is proposing to
reclassify this preamendments class III device intended for the
treatment of poisoning and drug overdose into class II. The Agency has
identified special controls that would provide reasonable assurance of
their safety and effectiveness. Sorbent hemoperfusion systems intended
for the treatment of poisoning and drug overdose are prescription
devices restricted to patient use only upon the authorization of a
practitioner licensed by law to administer or use the device. (Proposed
Sec. 876.5870(a); see section 520(e) of the FD&C Act and 21 CFR
801.109 (Prescription devices)). Prescription-use restrictions are a
type of general controls authorized under section 520(e) and defined as
a general control in section 513(a)(1)(A)(i) of the FD&C Act.
Sorbent hemoperfusion is used in a small number of poisoning and
drug overdose cases each year. Due to the emergent nature of poisoning
and drug overdose events, it is expected that the published clinical
literature is limited and that randomized, controlled, clinical trials
are not practical to conduct. Since the time of the original
Gastroenterology-Urology Device Classification Panel recommendation in
1981, sufficient new evidence has been developed to support a
reclassification
[[Page 20275]]
of sorbent hemoperfusion system to class II with special controls for
the treatment of poisoning and hepatic coma. There is valid scientific
evidence which demonstrate that these devices are of clinical value in
treating poisoning and drug overdose patients (Refs. 4 to 11). In this
patient population, which is often relatively healthy prior to the
poisoning or overdose event, quick removal of the poison or drug can
greatly impact clinical outcomes, whereas in the hepatic coma and
encephalopathy population, which typically exhibit severe underlying
disease, comorbidities, and high mortality there is no substantive
evidence on what substances need to be removed or decreased to bring on
patient improvements or change clinical outcomes.
Unlike sorbent hemoperfusion devices for the treatment of hepatic
coma and metabolic disturbances, appropriate bench testing
methodologies have also been developed to provide assurance that the
device can remove a particular poison or drug from the bloodstream. FDA
has developed sufficient confidence in these bench tests via review of
510(k) submissions for these devices. In addition, a review of the
available literature, FDA's MAUDE adverse event reporting database, and
the manufacturer's submission to the 515(i) docket (74 FR 16214, April
9, 2009) did not present evidence of significant reports of adverse
events associated with the use of the sorbent hemoperfusion despite the
longstanding use of these devices.
Given the low occurrence of adverse events, the valid scientific
evidence to support sorbent hemoperfusion for this use, and FDA's
review experience with these devices, FDA believes that the identified
special controls, including performance testing to ensure that the
device is effective in removing particular poisons or drugs and is
adequately designed and includes adequate safeguards, and labeling to
inform users of inappropriate use conditions, in addition to general
controls, provide reasonable assurance of effectiveness for this device
for the treatment of poisoning and drug overdose.
X. Environmental Impact
The Agency has determined under 21 CFR 25.30(h) and 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.
XI. Paperwork Reduction Act of 1995
This proposed order refers to collections of information that 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 21 CFR part 814 have been
approved under OMB control number 0910-0231. The collections of
information in 21 CFR part 807, subpart E, have been approved under OMB
control number 0910-0120. The effect of this order, if finalized, is to
shift certain devices from the 510(k) premarket notification process to
the PMA process. To account for this change, FDA intends to transfer
some of the burden from OMB control number 0910-0120, which is the
control number for the 510(k) premarket notification process, to OMB
control number 0910-0231, which is the control number for the PMA
process. FDA estimates that it will receive 16 new PMAs as a result of
this order, if finalized. Based on FDA's most recent estimates, this
will result in a 4,842 hour burden increase. FDA also estimates that
there will be 14 fewer 510(k) submissions as a result of this order, if
finalized, because two manufacturers have not introduced their device
to market yet. Based on FDA's most recent estimates, this will result
in a 726 hour burden decrease. Therefore, on net, FDA expects a burden
hour increase of 4,116 due to this proposed regulatory change.
The collections of information in part 812 have been approved under
OMB control number 0910-0078.
XII. Codification of Orders
Prior to the amendments by FDASIA, section 513(e) of the FD&C Act
provided for FDA to issue regulations to reclassify devices and section
515(b) of the FD&C Act provided for FDA to issue regulations to require
approval of an application for premarket approval for preamendments
devices or devices found to be substantially equivalent to
preamendments devices. Because sections 513(e) and 515(b) as amended
require FDA to issue final orders rather than regulations, FDA will
continue to codify reclassifications and requirements for approval of
an application for premarket approval, resulting from changes issued in
final orders, in the Code of Federal Regulations. Therefore, under
section 513(e)(1)(A)(i) of the FD&C Act, as amended by FDASIA, in this
proposed order, we are proposing to revoke the requirements in 21 CFR
876.5870 related to the classification of sorbent hemoperfusion devices
for the treatment of poisoning and drug overdose as class III devices
and to codify the reclassification of sorbent hemoperfusion devices for
the treatment of poisoning and drug overdose into class II.
XIII. Proposed Effective Date
FDA is proposing that any final order based on this proposed order
become effective 90 days after date of publication of the final order
in the Federal Register.
XIV. Comments
Comments submitted to the previous dockets for the relevant devices
(cranial electrotherapy stimulator for the treatment of depression,
anxiety, and insomnia FDA-2011-N-0504; transilluminator for breast
evaluation FDA-2010-N-0412; sorbent hemoperfusion devices to treat
hepatic coma and metabolic disturbances; and sorbent hemoperfusion
devices for the treatment FDA-2012-M-0076) have been officially noted
and do not need to be resubmitted. FDA will consider previous docket
comments in issuing any final orders for these devices. Interested
persons may submit either written comments regarding this document to
the Division of Dockets Management (see ADDRESSES) or electronic
comments to https://www.regulations.gov. It is only necessary to send
one set of comments. Identify comments with the docket number found in
brackets in the heading of this document. Received comments may be seen
in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday
through Friday, and will be posted to the docket at https://www.regulations.gov.
XV. References
The following references have been placed on display in the
Division of Dockets Management (see ADDRESSES), and may be seen by
interested persons between 9 a.m. and 4 p.m., Monday through Friday,
and are available electronically at https://www.regulations.gov. (FDA
has verified the Web site addresses, but we are not responsible for any
subsequent changes to the Web sites after this document publishes in
the Federal Register.)
1. FDA Executive Summary prepared for the February 10, 2012, meeting
of the Neurologic Devices Panel--Petitions to Request Change in
Classification for Cranial Electrotherapy Stimulators.
2. Transcript, Center for Devices and Radiological Health Medical
Devices Advisory Committee, Neurological
[[Page 20276]]
Devices Panel, February 10, 2012, 8 a.m., Hilton Washington DC
North, 620 Perry Pkwy., Gaithersburg, MD. Available at https://www.fda.gov/AdvisoryCommittees/Calendar/ucm279941.htm.
3. Transcript, Center for Devices and Radiological Health Medical
Devices Advisory Committee, Radiological Devices Panel, April 12,
2012, 8 a.m., Hilton Washington DC North, 620 Perry Pkwy.,
Gaithersburg, MD. Available at https://www.fda.gov/AdvisoryCommittees/Calendar/ucm293275.htm.
4. Evenepoel, P., et al., ``Detoxifying Capacity and Kinetics of the
Molecular Adsorbent Recycling System, Contribution of the Different
Inbuilt Filters.'' Blood Purification, 21(3): p. 244-52, 2003.
5. Ash, S. R., et al., ``Treatment of Acetaminophen-Induced
Hepatitis and Fulminant Hepatic Failure With Extracorporeal Sorbent-
Based Devices,'' Advances in Renal Replacement Therapy, 9(1): p. 42-
53, 2002.
6. Akdogan, M., et al., ``Experience With Liver Dialysis in
Acetaminophen Induced Fulminant Hepatic Failure: A Preliminary
Report,'' Turkish Journal of Gastroenterology, 14(3): p. 164-7,
2003.
7. Ash, S. R., et al., ``Treatment of Severe Tricyclic
Antidepressant Overdose With Extracorporeal Sorbent
Detoxification.'' Advances in Renal Replacement Therapy, 9(1): p.
31-41, 2002.
8. De Schoenmakere, G., et al., ``Phenytoin Intoxication in
Critically Ill Patients,'' American Journal of Kidney Diseases,
45(1): p. 189-92, 2005.
9. Covic, A., et al., ``Successful Use of Molecular Absorbent
Regenerating System (MARS) Dialysis for the Treatment of Fulminant
Hepatic Failure in Children Accidentally Poisoned by Toxic Mushroom
Ingestion,'' Liver International, 23 Suppl 3: p. 21-7, 2003.
10. Shi, Y., et al., ``MARS: Optimistic Therapy Method in Fulminant
Hepatic Failure Secondary to Cytotoxic Mushroom Poisoning--A Case
Report,'' Liver, 22 Suppl 2: p. 78-80, 2002.
11. Wu, B .F. and M. M. Wang, Molecular Adsorbent Recirculating
System In Dealing With Maternal Amanita Poisoning During the Second
Pregnancy Trimester: A Case Report, Hepatobiliary and Pancreatic
Diseases International, 3(1): p. 152-4, 2004.
List of Subjects
21 CFR Part 876
Medical devices.
21 CFR Part 882
Medical devices, Neurological devices.
21 CFR Part 892
Medical devices, Radiation protection, X-rays.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, it is
proposed that 21 CFR parts 876, 882, and 892 be amended as follows:
PART 876--GASTROENTEROLOGY-UROLOGY DEVICES
0
1. The authority citation for 21 CFR part 876 continues to read as
follows:
Authority: 21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
0
2. Section 876.5870 is revised to read as follows:
Sec. 876.5870 Sorbent hemoperfusion system.
(a) Identification. A sorbent hemoperfusion system is a
prescription device that consists of an extracorporeal blood system
similar to that identified in the hemodialysis system and accessories
(Sec. 876.5820) and a container filled with adsorbent material that
removes a wide range of substances, both toxic and normal, from blood
flowing through it. The adsorbent materials are usually activated-
carbon or resins which may be coated or immobilized to prevent fine
particles entering the patient's blood. The generic type of device may
include lines and filters specifically designed to connect the device
to the extracorporeal blood system. The device is used in the treatment
of poisoning, drug overdose, hepatic coma, or metabolic disturbances.
(b) Classification. (1) Class II (special controls) when the device
is intended for the treatment of poisoning and drug overdose. The
special controls for this device are:
(i) The device must be demonstrated to be biocompatible;
(ii) Performance data to demonstrate the mechanical integrity of
the device (e.g., tensile, flexural, and structural strength),
including testing for the possibility of leaks, ruptures, release of
particles, and/or disconnections;
(iii) Performance data to demonstrate device sterility and shelf
life;
(iv) Bench performance data to demonstrate device functionality in
terms of substances, toxins, and drugs removed by the device, and the
extent that these are removed when the device is used according to its
labeling, and to validate the device's safeguards;
(v) Summary of clinical experience with the device that discusses
and analyzes device safety and performance, including a list of adverse
events observed during the testing;
(vi) Labeling controls, including appropriate warnings,
precautions, cautions, and contraindications statements to alert and
inform users of proper device use and potential clinical adverse
effects, including blood loss, platelet loss, leukopenia, hemolysis,
hypotension, clotting, metabolic disturbances, and loss of vital
nutrients and substances; labeling recommendations must be consistent
with the performance data obtained for the device, and must include a
list of the drugs and/or poisons the device has been demonstrated to
remove, and the extent for removal/depletion; and
(vii) For those devices that incorporate electrical components,
appropriate analysis and testing to validate electrical safety and
electromagnetic compatibility.
(2) Class III (premarket approval) when the device is intended for
the treatment of hepatic coma and metabolic disturbances.
(c) Date premarket approval application (PMA) or notice of
completion of product development protocol (PDP) is required. A PMA or
notice of completion of a PDP is required to be filed with FDA by [DATE
90 DAYS AFTER DATE OF PUBLICATION OF THE FINAL ORDER IN THE FEDERAL
REGISTER], for any sorbent hemoperfusion system indicated for treatment
of hepatic coma or metabolic disturbances that was in commercial
distribution before May 28, 1976, or that has, by [DATE 90 DAYS AFTER
DATE OF PUBLICATION OF THE FINAL ORDER IN THE FEDERAL REGISTER], been
found to be substantially equivalent to any sorbent hemoperfusion
device indicated for treatment of hepatic coma or metabolic
disturbances that was in commercial distribution before May 28, 1976.
Any other sorbent hemoperfusion system device indicated for treatment
of hepatic coma or metabolic disturbances shall have an approved PMA or
declared completed PDP in effect before being placed in commercial
distribution.
PART 882--NEUROLOGICAL DEVICES
0
3. The authority citation for 21 CFR part 882 continues to read as
follows:
Authority: 21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
0
4. Section 882.5800 is amended by revising paragraph (c) to read as
follows:
Sec. 882.5800 Cranial electrotherapy stimulator.
* * * * *
(c) Date PMA or notice of completion of PDP is required. A PMA or
notice of completion of a PDP is required to be filed with the Food and
Drug Administration by [A DATE WILL BE ADDED 90 DAYS AFTER DATE OF
PUBLICATION OF A FUTURE FINAL ORDER IN THE FEDERAL REGISTER],
[[Page 20277]]
for any cranial electrotherapy stimulator device that was in commercial
distribution before May 28, 1976, or that has, by [A DATE WILL BE ADDED
90 DAYS AFTER DATE OF PUBLICATION OF A FUTURE FINAL ORDER IN THE
FEDERAL REGISTER], been found to be substantially equivalent to any
cranial electrotherapy stimulator device that was in commercial
distribution before May 28, 1976. Any other cranial electrotherapy
stimulator device shall have an approved PMA or declared completed PDP
in effect before being placed in commercial distribution.
PART 892--RADIOLOGY DEVICES
0
5. The authority citation for 21 CFR part 892 continues to read as
follows:
Authority: 21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
0
6. Section 892.1990 is amended by revising paragraph (c) to read as
follows:
Sec. 892.1990 Transilluminator for breast evaluation.
* * * * *
(c) Date PMA or notice of completion of PDP is required. A PMA or
notice of completion of a PDP is required to be filed with the Food and
Drug Administration by [A DATE WILL BE ADDED 90 DAYS AFTER DATE OF
PUBLICATION OF A FUTURE FINAL ORDER IN THE FEDERAL REGISTER], for any
transilluminator for breast evaluation that was in commercial
distribution before May 28, 1976, or that has, by [A DATE WILL BE ADDED
90 DAYS AFTER DATE OF PUBLICATION OF A FUTURE FINAL ORDER IN THE
FEDERAL REGISTER], been found to be substantially equivalent to any
transilluminator for breast evaluation that was in commercial
distribution before May 28, 1976. Any other transilluminator for breast
evaluation shall have an approved PMA or declared completed PDP in
effect before being placed in commercial distribution.
Dated: March 29, 2013.
Peter Lurie,
Acting Associate Commissioner for Policy and Planning.
[FR Doc. 2013-07730 Filed 4-3-13; 8:45 am]
BILLING CODE 4160-01-P