Medical devices: Ear, nose, and throat devices— Olfactory test device; classification,

[Federal Register: June 7, 2006 (Volume 71, Number 109)]

[Rules and Regulations]

[Page 32834-32835]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr07jn06-13]

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 874

[Docket No. 2006N-0182]

Medical Devices; Ear, Nose, and Throat Devices; Classification of Olfactory Test Device

AGENCY: Food and Drug Administration, HHS.

ACTION: Final rule.

SUMMARY: The Food and Drug Administration (FDA) is classifying the olfactory test device into class II (special controls). The special control that will apply to the device is the guidance document entitled ``Class II Special Controls Guidance Document: Olfactory Test Device.'' The agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device. Elsewhere in this issue of the Federal Register, FDA is announcing the availability of the guidance document that is the special control for the device.

DATES: This final rule becomes effective July 7, 2006. The classification was effective March 27, 2006.

FOR FURTHER INFORMATION CONTACT: Eric A. Mann, Center for Devices and Radiological Health (HFZ-460), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-594-2080.

SUPPLEMENTARY INFORMATION:

1. What is the Background of This Rulemaking?

   In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976, the date of enactment of the Medical Device Amendments of 1976 (the amendments), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless the device is classified or reclassified into class I or class II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the act, to a predicate device that does not require premarket approval. The agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of FDA's regulations.

   Section 513(f)(2) of the act provides that any person who submits a premarket notification under section 510(k) of the act for a device that has not previously been classified may, within 30 days after receiving an order classifying the device in class III under section 513(f)(1) of the act, request FDA to classify the device under the criteria set forth in section 513(a)(1) of the act. FDA shall, within 60 days of receiving such a request, classify the device by written order. This classification shall be the initial classification of the device. Within 30 days after the issuance of an order classifying the device, FDA must publish a notice in the Federal Register announcing such classification (section 513(f)(2) of the act).

   In accordance with section 513(f)(1) of the act, FDA issued an order on May 27, 2004, classifying the HealthCheck\TM\ Home Test for Loss of the Sense of Smell into class III, because it was not substantially equivalent to a class I or class II device that was introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976, or a device which was subsequently reclassified into class I or class II. On July 28, 2004, FMG Innovations, Inc., submitted a request for classification of the HealthCheck\TM\ Home Test for Loss of the Sense of Smell under section 513(f)(2) of the act (Ref. 1). The manufacturer recommended that the device be classified into class I.

   In accordance with section 513(f)(2) of the act, FDA reviewed the petition in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the act. In general, devices are to be classified into class I if general controls, by themselves are sufficient to provide reasonable assurance of safety and effectiveness. Devices are to be classified into class II if general controls, by themselves, are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the petition, FDA determined that the HealthCheck\TM\ Home Test for Loss of the Sense of Smell should be classified into class II with the establishment of special controls. FDA believes that special controls, in addition to general controls, are necessary to provide reasonable assurance of safety and effectiveness of the device, and there is sufficient information to establish special controls to provide such assurance.

   The device is assigned the generic name ``olfactory test device,'' and it is identified as a device used to determine whether a loss of olfactory function is present. The device includes one or more odorants that are presented to the patient's nose to subjectively assess olfactory function (i.e., the patient's ability to perceive odors). This device is not intended for the screening or diagnosis of diseases or conditions other than the loss of olfactory function.

   FDA has identified the risks to health associated with this type of device as failure to detect olfactory sensory loss and user error. FDA believes that the class II special controls guidance document will aid in mitigating the potential risks to health by providing recommendations for the validation of performance characteristics and labeling. FDA believes that the special controls guidance document, in addition to general controls, addresses

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   the risks to health identified previously and provides reasonable assurance of the safety and effectiveness of the device. Therefore, on March 27, 2006, FDA issued an order to the petitioner classifying the device into class II. FDA is codifying this classification at Sec. 874.1600.

   Following the effective date of the final classification rule, manufacturers will need to address the issues covered in this special control guidance. However, the manufacturer need only show that its device meets the recommendations of the guidance or in some other way provides equivalent assurances of safety and effectiveness.

   Section 510(m) of the act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the act, if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. FDA has determined that premarket notification is not necessary to assure the safety and effectiveness of olfactory test devices when intended to determine whether an olfactory loss is present.

2. What Is the Environmental Impact of This Rule?

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

3. What Is the Economic Impact of This Rule?

   FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.

   The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because classification of this device into class II will relieve manufacturers of the cost of complying with the premarket approval requirements of section 515 of the act (21 U.S.C. 360e), and may permit small potential competitors to enter the marketplace by lowering their costs, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

   Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing ``any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.'' The current threshold after adjustment for inflation is $115 million, using the most current (2003) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.

4. Does This Final Rule Have Federalism Implications?

   FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

5. How Does This Rule Comply with the Paperwork Reduction Act of 1995?

   This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) is not required. FDA concludes that the special controls guidance document contains information collection provisions that are subject to review and clearance by OMB under the PRA. Elsewhere in this issue of the Federal Register, FDA is publishing a notice announcing the availability of the guidance document entitled ``Class II Special Controls Guidance Document Olfactory Test Device.'' The notice contains an analysis of the paperwork burden for the guidance.

6. What References are on Display?

   The following references have been placed on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

   1. Petition from FMG Innovations, Inc., for classification of the HealthCheck\TM\ Home Test for Loss of the Sense of Smell submitted July 28, 2004.

   List of Subjects in 21 CFR Part 874

   Medical devices.

   0 Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 874 is amended as follows:

   PART 874--EAR, NOSE, AND THROAT DEVICES

   0 1. The authority citation for 21 CFR part 874 continues to read as follows:

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

   0 2. Add Sec. 874.1600 to subpart B to read as follows:

   Sec. 874.1600 Olfactory test device.

   (a) Identification. An olfactory test device is used to determine whether an olfactory loss is present. The device includes one or more odorants that are presented to the patient's nose to subjectively assess the patient's ability to perceive odors.

   (b) Classification. Class II (special controls). The special control for these devices is the FDA guidance document entitled ``Class II Special Controls Guidance Document: Olfactory Test Device.'' For the availability of this guidance document, see Sec. 874.1(e). The device is exempt from the premarket notification procedures in subpart E of part 807 of this chapter subject to the limitations in Sec. 874.9. When indicated for the screening or diagnosis of diseases or conditions other than the loss of olfactory function, the device is not exempt from premarket notification procedures.

   Dated: May 24, 2006. Linda S. Kahan, Deputy Director, Center for Devices and Radiological Health.

   [FR Doc. E6-8791 Filed 6-6-06; 8:45 am]

   BILLING CODE 4160-01-S