CLA-2 OT: RR: CTF: TCM H035567 RM
Mr. William F. Joffroy
William F. Joffroy Customs Brokers, Inc.
P.O. Box 698
Nogales, AZ 85628
RE: Reconsideration of New York Ruling Letter NY G83236, dated October 17, 2000; Classification of a Surgical Clip
Dear Mr. Joffroy:
This is in reference to New York Ruling Letter (“NY”) G83236, dated October 17, 2000, issued to you on behalf of Coalescent Surgical, Inc., concerning the tariff classification of a surgical clip. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the merchandise under heading 7508, specifically in subheading 7508.90.50, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Other articles of nickel: Other: Other.” We have reviewed NY G83236 and found it to be incorrect.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification was published on November 13, 2008, in the Customs Bulletin, Volume 42, No. 47. No comments were received in response to this notice.
FACTS:
In NY G83236, we described the merchandise as: “a non-sterile surgical clamp made of Nitinol wire. Nitinol is a nickel titanium, an alloy of nickel (Section XV, Chapter 75, Subheading Notes, 1(b)(iii)).” We have since received additional information to indicate that the clamp, which is marketed as the “U-Clip,” is a device used during vascular and cardiac surgery, in lieu of sutures, to join severed vessels and organs. The device consists of a self-closing clip attached to a conventional surgical needle by a flexible member (pictured below).
According to our research gathered from the importer’s website, after joining the vessels and/or organs, the clip automatically retracts when severed from the needle and flexible member, thereby forming a ring (magnified picture below). The self-closing clip eliminates the need for knot-tying and suture management during surgery.
ISSUE:
What is the correct tariff classification of the U-Clip under the HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
7508 Other articles of nickel:
7508.90 Other:
7508.90.50 Other …
9018 Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments; parts and accessories thereof:
9018.90 Other instruments and appliances and parts and accessories thereof:
Other:
9018.90.80 Other …
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 7508, HTSUS, state, in part:
(B) OTHER
This group covers all articles of nickel other than those covered by the preceding group or by the preceding headings of this Chapter or by Note 1 to Section XV, or articles specified or included in Chapter 82 or 83, or more specifically covered elsewhere in the Nomenclature.
The ENs to heading 9018, HTSUS, state, in part:
This heading covers a very wide range of instruments and appliances which, in the vast majority of cases, are used only in professional practice (e.g., by doctors, surgeons, dentists, veterinary surgeons, midwives), either to make a diagnosis, to prevent or treat an illness or to operate, etc. Instruments and appliances for anatomical or autoptic work, dissection, etc., are also included, as are, under certain conditions, instruments and appliances for dental laboratories (see Part (II) below). The instruments of the heading may be made of any material (including precious metals).
This heading does not cover:
(a) Sterile catgut and other sterile material for surgical sutures, sterile laminaria and sterile laminaria tents (heading 30.06).
* * *
(I) INSTRUMENTS AND APPLIANCES FOR HUMAN MEDICINE OR SURGERY
This group includes:
Instruments which may be used under the same names for several purposes, for example:
Needles (for sutures, ligatures, vaccination, blood tests, hypodermic needles, etc.).
* * * (15) Clips (suture, etc.).
* * * (17) Surgical staplers for inserting staples to close a
wound.
Heading 9018, HTSUS, provides for, among other things, “[i]nstruments and appliances used in … surgical sciences.” The U-Clip is not a general-purpose clip. It is a clip used solely during vascular and cardiac surgery to join vessels and organs. As such, it is analogous to a surgical needle with a suture attached, which we have consistently classified under heading 9018, HTSUS. See Headquarters Ruling Letter (“HQ”) 965845, 965846, and 965847, dated November 7, 2002.
Based on the foregoing, we conclude that the U-Clip is provided for under heading 9018, HTSUS. Our determination is in keeping with the ENs to heading 9018, HTSUS, which describe “clips (suture, etc.)” as “[i]nstruments used … only in professional practice (e.g., by surgeons) … to operate[.]” Classification under heading 7508, HTSUS, is thereby precluded, as it is limited to articles not more specifically covered elsewhere in the Nomenclature. See EN 75.08(b).
HOLDING:
By application of GRI 1, the U-Clip is classified under heading 9018, specifically in subheading 9018.90.80, HTSUS, which provides for: “Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments; parts and accessories thereof: Other instruments and appliances and parts and accessories thereof: Other. The column one, general rate of duty is: “Free.”
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY G83236, dated October 17, 2000, is hereby revoked. In accordance with 19 U.S.C. § 1625(c), this action will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division