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 Department of Health and Human Services Food and Drug Administration 21 CFR Part 870
[Docket No. FDA-2021-N-1029]
 AGENCY: Food and Drug Administration, HHS.
 ACTION: Final amendment; final order.
 SUMMARY: The Food and Drug Administration (FDA or we) is classifying the percutaneous catheter for creation of an arteriovenous fistula for hemodialysis access into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the percutaneous catheter for creation of an arteriovenous fistula for hemodialysis access' classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices.
 DATES: This order is effective February 18, 2022. The classification was applicable on June 22, 2018.
 FOR FURTHER INFORMATION CONTACT: Carmen Gacchina Johnson, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2120, Silver Spring, MD 20993-0002, 240-402-5244, 
                        *Carmen.Gacchina@fda.hhs.gov.*


SUPPLEMENTARY INFORMATION: I. Background Upon request, FDA has classified the percutaneous catheter for creation of an arteriovenous fistula for hemodialysis access as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, by placing the device into a lower device class than the automatic class III assignment. The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act). FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807). FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112-144). A device sponsor may utilize either procedure for De Novo classification. Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act. Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device. We believe this De Novo classification will enhance patients' access to beneficial innovation. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device. II. De Novo Classification On February 3, 2016, FDA received TVA Medical, Inc.'s request for De Novo classification of the everlinQ endoAVF System. Subsequently, on January 10, 2017, FDA received Avenu Medical, Inc.'s similar request for De Novo classification of the Ellipsys Vascular Access System. FDA reviewed both requests in order to classify the devices under the criteria for classification set forth in section 513(a)(1) of the FD&C Act. We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the requests, we determined that the devices can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the devices. Therefore, on June 22, 2018, FDA issued orders to both requesters classifying their devices into class II. In this final order, FDA is codifying the classification of the devices by adding 21 CFR 870.1252.[1]
                    
                     We have named the generic type of device percutaneous catheter for creation of an arteriovenous 
                    ( print page 9241)
                    fistula for hemodialysis access, and it is identified as a single use percutaneous catheter system that creates an arteriovenous fistula in the arm of patients with chronic kidney disease who need hemodialysis. FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1. Table 1—Percutaneous Catheter for Creation of an Arteriovenous Fistula for Hemodialysis Access Risks and Mitigation Measures
Identified risks
Mitigation measuresUnintended vascular or tissue injury
Non-clinical performance testing, Animal testing, Clinical performance testing, and Labeling.Adverse hemodynamic effects
Non-clinical performance testing, Animal testing, Clinical performance testing, and Labeling.Failure to create a durable fistula that is usable for hemodialysis
Animal testing and Clinical performance testing.Use of the device adversely impacts future vascular access sites
Clinical performance testing and Labeling.Adverse tissue reaction
Biocompatibility evaluation and Labeling.Infection
Sterilization validation, Shelf life testing, and Labeling.Electrical malfunction or interference leading to electrical shock, device failure, or inappropriate activation
Non-clinical performance testing, Electrical safety testing, and Electromagnetic compatibility (EMC) testing.Software malfunction leading to device failure or inappropriate activation
Software verification, validation, and hazard analysis.
 FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. We encourage sponsors to consult with us if they wish to use a non-animal testing method they believe is suitable, adequate, validated, and feasible. We will consider if such an alternative method could be assessed for equivalency to an animal test method. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act. III. Analysis of Environmental Impact 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. IV. Paperwork Reduction Act of 1995 This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485. List of Subjects in 21 CFR Part 870 Medical devices
 Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 870 is amended as follows: PART 870—CARDIOVASCULAR DEVICES
 1.The authority citation for part 870 continues to read as follows: Authority:
                        21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371. 2.Add § 870.1252 to subpart B to read as follows: § 870.1252
  (a) 
                            *Identification.*
                             This device is a single use percutaneous catheter system that creates an arteriovenous fistula in the arm of patients with chronic kidney disease who need hemodialysis. (b) 
                            *Classification.*
                             Class II (special controls). The special controls for this device are: (1) Clinical performance testing must evaluate: (i) The ability to safely deliver, deploy, and remove the device; (ii) The ability of the device to create an arteriovenous fistula; (iii) The ability of the arteriovenous fistula to attain a blood flow rate and diameter suitable for hemodialysis; (iv) The ability of the fistula to be used for vascular access for hemodialysis; (v) The patency of the fistula; and (vi) The rates and types of all adverse events. (2) Animal testing must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be assessed: (i) Delivery, deployment, and retrieval of the device; (ii) Compatibility with other devices labeled for use with the device; (iii) Patency of the fistula; (iv) Characterization of blood flow at the time of the fistula creation procedure and at chronic followup; and (v) Gross pathology and histopathology assessing vascular injury and downstream embolization. (3) Non-clinical performance testing must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be tested: (i) Simulated-use testing in a clinically relevant bench anatomic model to assess the delivery, deployment, activation, and retrieval of the device; (ii) Tensile strengths of joints and components;
                            ( print page 9242) (iii) Accurate positioning and alignment of the device to achieve fistula creation; and (iv) Characterization and verification of all dimensions. (4) Electrical performance, electrical safety, and electromagnetic compatibility (EMC) testing must be performed for devices with electrical components. (5) Software verification, validation, and hazard analysis must be performed for devices that use software. (6) All patient-contacting components of the device must be demonstrated to be biocompatible. (7) Performance data must demonstrate the sterility of the device components intended to be provided sterile. (8) Performance data must support the shelf life of the device by demonstrating continued sterility, package integrity, and device functionality over the identified shelf life. (9) Labeling for the device must include: (i) Instructions for use; (ii) Identification of system components and compatible devices; (iii) Expertise needed for the safe use of the device; (iv) A detailed summary of the clinical testing conducted and the patient population studied; and (v) A shelf life and storage conditions.
 Dated: February 11, 2022. Lauren K. Roth, Associate Commissioner for Policy.


# Footnotes

1.
    
                         FDA notes that the “ACTION” caption for this final order is styled as “Final amendment; final order,” rather than “Final order.” Beginning in December 2019, this editorial change was made to indicate that the document “amends” the Code of Federal Regulations. The change was made in accordance with the Office of Federal Register's (OFR) interpretations of the Federal Register Act (44 U.S.C. chapter 15), its implementing regulations (1 CFR 5.9 and parts 21 and 22), and the Document Drafting Handbook. Back to Citation


[FR Doc. 2022-03496 Filed 2-17-22; 8:45 am] BILLING CODE 4164-01-P