Federal Register/Vol. 82, No. 214/Tuesday
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Federal Register / Vol. 82, No. 214 / Tuesday, November 7, 2017 / Rules and Regulations 51567 range of age and educational levels and lead to prophylactic screening, SUPPLEMENTARY INFORMATION: have no prior experience with the test confirmatory procedures, or treatments I. Statutory Background or its manufacturer. These factors shall that may incur morbidity or mortality to be well defined in the inclusion and the patient; Section 510(k) of the Federal Food, exclusion criteria. (iii) Assessing the presence of genetic Drug, and Cosmetic Act (the FD&C Act) (ii) All sources of bias must be variants that impact the metabolism, (21 U.S.C. 360(k)) and the implementing predefined and accounted for in the exposure, response, risk of adverse regulations, 21 CFR part 807 subpart E, study results with regard to both events, dosing, or mechanisms of require persons who intend to market a responders and non-responders. prescription or over-the-counter device to submit and obtain FDA (iii) The testing must follow a format medications; or clearance of a premarket notification where users have limited time to (iv) Assessing the presence of (510(k)) containing information that complete the studies (such as an onsite deterministic autosomal dominant allows FDA to determine whether the survey format and a one-time visit with variants. new device is ‘‘substantially equivalent’’ a cap on the maximum amount of time within the meaning of section 513(i) of Dated: November 1, 2017. that a participant has to complete the the FD&C Act (21 U.S.C. 360c(i)) to a tests). Lauren Silvis, legally marketed device that does not (iv) Users must be randomly assigned Chief of Staff. require premarket approval. to study arms. Test reports in the user [FR Doc. 2017–24159 Filed 11–6–17; 8:45 am] On December 13, 2016, the 21st comprehension study given to users BILLING CODE 4164–01–P Century Cures Act (Pub. L. 114–255) must define the target condition being (Cures Act) was signed into law. Section tested and related symptoms, explain 3054 of the Cures Act amended section the intended use and limitations of the DEPARTMENT OF HEALTH AND 510(m) of the FD&C Act. As amended, test, explain the relevant ethnicities in HUMAN SERVICES section 510(m)(2) provides that, 1 regard to the variant tested, explain calendar day after the date of Food and Drug Administration genetic health risks and relevance to the publication of the final list under user’s ethnicity, and assess participants’ paragraph (1)(B), FDA may exempt a 21 CFR Part 866 ability to understand the following class II device from the requirement to comprehension concepts: The test’s [Docket No. FDA–2015–N–3455] submit a report under section 510(k) of limitations, purpose, appropriate action, the FD&C Act, upon its own initiative or test results, and other factors that may Medical Devices; Exemption From a petition of an interested person, if have an impact on the test results. Premarket Notification; Class II FDA determines that a 510(k) is not (v) Study participants must be Devices; Autosomal Recessive Carrier necessary to provide reasonable untrained, be naı¨ve to the test subject of Screening Gene Mutation Detection assurance of the safety and effectiveness the study, and be provided the labeling System of the device. This section requires FDA prior to the start of the user to publish in the Federal Register a AGENCY: Food and Drug Administration, comprehension study. HHS. notice of intent to exempt a device, or (vi) The user comprehension study of the petition, and to provide a 60- must meet the predefined primary ACTION: Final order. calendar-day comment period. Within endpoint criteria, including a minimum SUMMARY: The Food and Drug 120 days of publication of such notice, of a 90 percent or greater overall Administration (FDA or Agency) is FDA must publish an order in the comprehension rate (i.e., selection of the publishing an order to exempt Federal Register that sets forth its final correct answer) for each comprehension autosomal recessive carrier screening determination regarding the exemption concept. Other acceptance criteria may gene mutation detection systems from of the device that was the subject of the be acceptable depending on the concept the premarket notification requirements, notice. If FDA fails to respond to a being tested. Meeting or exceeding this subject to certain limitations. This petition under this section within 180 overall comprehension rate exemption from 510(k), subject to days of receiving it, the petition shall be demonstrates that the materials certain limitations, is immediately in deemed granted. presented to the user are adequate for effect for autosomal recessive carrier II. Criteria for Exemption over-the-counter use. screening gene mutation detection There are a number of factors FDA (vii) The analysis of the user systems. This exemption will decrease may consider to determine whether a comprehension results must include regulatory burdens on the medical 510(k) is necessary to provide results regarding reports that are device industry and will eliminate reasonable assurance of the safety and provided for each gene/variant/ethnicity private costs and expenditures required effectiveness of a class II device. These tested, statistical methods used to to comply with certain Federal factors are discussed in the January 21, analyze all data sets, and completion regulations. FDA is also amending the 1998, Federal Register notice (63 FR rate, non-responder rate, and reasons for codified language for the autosomal 3142) and subsequently in the guidance nonresponse/data exclusion. A recessive carrier screening gene the Agency issued on February 19, 1998, summary table of comprehension rates mutation detection system devices entitled ‘‘Procedures for Class II Device regarding comprehension concepts (e.g., classification regulation to reflect this Exemptions from Premarket purpose of test, test results, test final determination. limitations, ethnicity relevance for the Notification, Guidance for Industry and test results, etc.) for each study report DATES: This order is effective November CDRH Staff’’ (referred to herein as the must be included. 7, 2017. Class II 510(k) Exemption Guidance) (4) The intended use of the device FOR FURTHER INFORMATION CONTACT: (Ref. 1). must not include the following Steven Tjoe, Center for Devices and III. Device Description indications for use: Radiological Health, Food and Drug (i) Prenatal testing; Administration, 10903 New Hampshire On February 19, 2015, FDA (ii) Determining predisposition for Ave., Bldg. 66, Rm. 4550, Silver Spring, completed its review of a De Novo cancer where the result of the test may MD 20993–0002, 301–796–5866. request for classification of the 23andMe VerDate Sep<11>2014 15:04 Nov 06, 2017 Jkt 244001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\07NOR1.SGM 07NOR1 nshattuck on DSK9F9SC42PROD with RULES 51568 Federal Register / Vol. 82, No. 214 / Tuesday, November 7, 2017 / Rules and Regulations Personal Genome Service (PGS) Carrier IV. Comments on the Proposed based upon scientific and clinical Screening Test for Bloom syndrome. Exemption and FDA Response literature as to the autosomal recessive FDA classified the 23andMe PGS Carrier In response to the October 2015 notice nature of a particular disease or Screening Test for Bloom syndrome, announcing FDA’s intent to exempt condition, we are not providing a and substantially equivalent devices of autosomal recessive carrier screening revised list in this final order. (Comment 2) One commenter this generic type, into class II (special gene mutation detection system devices requested clarification that § 866.5940 controls) under the generic name from premarket notification applies to OTC carrier detection devices ‘‘Autosomal recessive carrier screening requirements, FDA received for the determination of carrier status by gene mutation detection system.’’ This submissions from three commenters—a detection of clinically relevant gene type of device is a qualitative in vitro device industry manufacturer, a mutations associated with cystic molecular diagnostic system used for professional organization, and a health fibrosis. genotyping of clinically relevant care organization—supporting an variants in genomic DNA isolated from (Response) In the October 2015 exemption from premarket notification notice, FDA stated ‘‘[a] gene mutation human specimens intended for for this type of device. prescription use or over-the-counter detection system indicated for the To make it easier to identify determination of carrier status by (OTC) use. The device is intended for comments and our responses, the word autosomal recessive disease carrier detection of clinically relevant gene ‘‘Comment’’ and a comment number mutations associated with Cystic screening in adults of reproductive age. appear in parentheses before each The device is not intended for copy Fibrosis is not 510(k)-exempt since it is comment’s description, and the word a class II device subject to premarket number variation, cytogenetic, or ‘‘Response’’ in parentheses precedes biochemical testing. notification and special controls under each response. Similar comments are 21 CFR 866.5900—Cystic fibrosis FDA believes that De Novo grouped together under the same transmembrane conductance regulator classification will enhance patients’ number. Specific issues raised by the (CFTR) gene mutation detection access to beneficial innovation, in part comments and the Agency’s responses system.’’ Similarly, in the final order by reducing regulatory burdens. When follow. announcing the classification of an FDA classifies a device into class I or II (Comment 1) Two commenters autosomal recessive carrier screening via the De Novo process, the device can requested that FDA clarify that the list gene mutation detection system into serve as a predicate for determining of autosomal recessive carrier diseases class II (80 FR 65626, October 27, 2015), substantial equivalence for future included in the October 2015 notice is FDA stated ‘‘A gene mutation detection devices within that type (see 21 U.S.C. not exhaustive or expand the list of system indicated for the determination 360c(f)(2)(B)(i)).