[Federal Register Volume 61, Number 236 (Friday, December 6, 1996)]
[Rules and Regulations]
[Pages 64616-64617]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 96-31047]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 880

[Docket Number 94P-0443]


Medical Devices; Reclassification of Acupuncture Needles for the 
Practice of Acupuncture

AGENCY: Food and Drug Administration, HHS.

ACTION: Final rule.

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SUMMARY: The Food and Drug Administration (FDA) is announcing that it 
is reclassifying acupuncture needles for the practice of acupuncture 
and substantially equivalent devices of this generic type from class 
III (premarket approval) into class II (special controls). FDA is also 
announcing it has issued an order in the form of a letter to the 
Acupuncture Coalition reclassifiying acupuncture needles. This action 
is in response to petitions filed by the Acupuncture Coalition and in 
keeping with, but not dependent upon, the recommendation of FDA's 
Anesthesiology Devices Advisory Panel (the Panel). This action is being 
taken because the agency believes that there is sufficient information 
to establish that special controls will provide reasonable assurance of 
the safety and effectiveness of acupuncture needles.

EFFECTIVE DATE:  December 6, 1996.

FOR FURTHER INFORMATION CONTACT: Timothy A. Ulatowski, Center for 
Devices and Radiological Health (HFZ-480), Food and Drug 
Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-443-
8879.

SUPPLEMENTARY INFORMATION: On December 6, 1995, FDA filed 
reclassification petitions from the Acupuncture Coalition, which 
includes representatives of the following manufacturers: Carbo (Mfg.), 
China; Hwa-To, China; Chung Wha, South Korea; Taki, South Korea; Dong 
Bang, South Korea; Tseng Shyh Co., Taiwan; HCD, France; Sedatelec, 
France; Seirin-Kasei (Mfg.), Japan; Ito Co., Japan; and Ido-No-Nippon-
Sha, Japan, requesting reclassification of acupuncture needles from 
class III to class II. On March 29, 1996, FDA issued an order (Ref. 1) 
in the form of a letter, to the petitioners reclassifying acupuncture 
needles for the practice of acupuncture and substantially equivalent 
devices of this generic type from class III to class II. Section 
513(f)(2) of the Federal Food, Drug, and Cosmetic Act (the act) (21 
U.S.C. 360c(f)(2)) and Sec. 860.134 (21 CFR 860.134) provide for the 
reclassification by order of devices not in commercial distribution 
before May 28, 1976, the date of enactment of the Medical Device 
Amendments.
    Under section 513(f)(2) of the act and Sec. 860.134, FDA may refer 
a reclassification petition to an appropriate panel. Although FDA did 
not refer the reclassification petitions submitted by the Acupuncture 
Coalition to a panel, the Anesthesiology Devices Advisory Panel (the 
Panel) had previously considered the classification of acupuncture 
needles and other acupuncture devices and recommended that acupuncture 
needles be placed into class II, as reported in the Federal Register of 
November 2, 1979 (44 FR 63292 at 63299) (Ref. 2). The supplemental data 
sheet completed by the Panel on November 30, 1976 (Ref. 3), listed 
sepsis, excessive trauma, and perforation of blood vessels and organs 
as specific risks, and recommended restricting the device to 
prescription use. FDA's decision to reclassify acupuncture needles as 
class II is in keeping with, but not dependent upon, the recommendation 
of the Panel.
    FDA determined that acupuncture needles could safely be 
reclassified from class III to class II with the implementation of 
special controls. Acupuncture needles are devices intended to pierce 
the skin in the practice of acupuncture. The device consists of a 
solid, stainless steel needle and may have a handle attached to the 
needle to facilitate the delivery of acupuncture treatment.
    The order identified the special controls needed to provide 
reasonable assurance of the safety and effectiveness of acupuncture 
needles. Those special controls are in compliance with: (1) Labeling 
provisions for single use only and the prescription statement in 
Sec. 801.109 (21 CFR 801.109) (restriction to use by or on the order of 
qualified practitioners as determined by the States), (2) device 
material biocompatibility, and (3) device sterility. FDA believes that 
information for use, including: Indications, effects, routes, methods, 
and frequency and duration of administration; and any hazards, 
contraindications, side effects, and precautions are commonly known to 
qualified practitioners of acupuncture. Therefore, under 
Sec. 801.109(c), such indications do not need to be on the dispensing 
packaging, but sale must be clearly restricted to qualified 
practitioners of acupuncture as determined by the States. Guidance on 
the type of information needed to support biocompatibility and 
sterility of

[[Page 64617]]

acupuncture needles is available in the General Hospital Branch 
guidance document entitled ``Guidance on the Content of Premarket 
Notification (510(k)) Submissions for Hypodermic Single Lumen Needles'' 
(draft), April 1993 (Ref. 4). A copy of this guidance document is 
available from the Division of Small Manufacturers Assistance (HFZ-
220), Center for Devices and Radiological Health, Food and Drug 
Administration, 1350 Piccard Dr., Rockville, MD 20850-4307, 301-443-
6597 or 800-638-2041 and FAX 301-443-8818.
    Consistent with the act and the regulations, after thorough review 
of the clinical data submitted in the petitions, and after FDA's own 
literature search, on March 29, 1996, FDA sent the Acupuncture 
Coalition a letter (order) reclassifying acupuncture needles for 
general acupuncture use, and substantially equivalent devices of this 
generic type, from class III to class II (special controls). As 
required by Sec. 860.134(b)(7), FDA is announcing the reclassification 
of the generic type of device. Additionally, FDA is amending part 880 
(21 CFR part 880) to include the classification of acupuncture needles 
for the practice of acupuncture by adding new Sec. 880.5580.

Environmental Impact

    The agency has determined that this action is of a type that does 
not individually or cumulatively have a significant effect on the human 
environment. Under 21 CFR 25.24(e)(2), the reclassification of a device 
is categorically exempt from environmental assessment and environmental 
impact statement requirements. Therefore, neither an environmental 
assessment nor an environmental impact statement is required.

Analysis of Impacts

    FDA has examined the impacts of the final rule under Executive 
Order 12866 and the Regulatory Flexibility Act (Pub. L. 96-354). 
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 consistent with the regulatory philosophy and 
principles identified in the Executive Order. In addition, the final 
rule is not a significant regulatory action as defined by the Executive 
Order and so is not subject to review 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 reclassification of devices from class III 
to class II will relieve some 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. Therefore, under the Regulatory Flexibility 
Act, no further analysis is required.

Paperwork Reduction Act of 1995

    FDA concludes that the labeling requirements in this final rule are 
not subject to review by the Office of Management and Budget because 
they do not constitute a ``collection of information'' under the 
Paperwork Reduction Act of 1995 (Pub. L. 104-13). Rather, the proposed 
warning statements are ``public disclosure of information originally 
supplied by the Federal Government to the recipient for the purpose of 
disclosure to the public'' (5 CFR 1320.3(c)(2)).

References

    The following references have been placed on display in the Dockets 
Management Branch (HFA-305), Food and Drug Administration, 12420 
Parklawn Dr., rm. 1-23, Rockville, MD 20857 and may be seen by 
interested persons between 9 a.m. and 4 p.m., Monday through Friday.
    1. FDA letter (order) to the Acupuncture Coalition dated March 
29, 1996.
    2. Classification of anesthesiology devices, development of 
general provisions; 44 FR 63292 at 63299, November 2, 1979.
    3. Anesthesiology Devices Advisory Panel's supplemental data 
sheet, November 30, 1976.
    4. Guidance on the Content of Premarket (510(k)) Submissions for 
Hypodermic Single Lumen Needles (draft), April 1993.

List of Subjects in 21 CFR Part 880

    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 
880 is amended as follows:

PART 880--GENERAL HOSPITAL AND PERSONAL USE DEVICES

    1. The authority citation for 21 CFR part 880 continues to read as 
follows:

    Authority: Secs. 501, 510, 513, 515, 520, 701 of the Federal 
Food, Drug, and Cosmetic Act (21 U.S.C. 351, 360, 360c, 360e, 360j, 
371).

    2. New Sec. 880.5580 is added to subpart F to read as follows:


Sec. 880.5580  Acupuncture needle.

    (a) Identification. An acupuncture needle is a device intended to 
pierce the skin in the practice of acupuncture. The device consists of 
a solid, stainless steel needle. The device may have a handle attached 
to the needle to facilitate the delivery of acupuncture treatment.
    (b) Classification. Class II (special controls). Acupuncture 
needles must comply with the following special controls:
    (1) Labeling for single use only and conformance to the 
requirements for prescription devices set out in 21 CFR 801.109,
    (2) Device material biocompatibility, and
    (3) Device sterility.

    Dated: November 20, 1996.
D. B. Burlington,
Director, Center for Devices and Radiological Health.
[FR Doc. 96-31047 Filed 12-5-96; 8:45 am]
BILLING CODE 4160-01-F