November 13, 2008 CBP Bulletin Notice on Classification of a Surgical Clip

Proposed revocation of ruling; proposed revocation of treatment. CBP is proposing to revoke one ruling on the classification of a surgical clip. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by December 13, 2008, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

Surgical clip. The merchandise is described as "a non-sterile surgical clamp made of Nitinol wire." Nitinol is a nickel titanium, an alloy of nickel. In addition, new information indicates 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. After joining the vessels and/or organs, the clip automatically retracts when severed from the needle and flexible member, thereby forming a ring. The self-closing clip eliminates the need for knot-tying and suture management during surgery.

CBP is proposing to issue HQ H035567 in order to revoke NY G83236 and reclassify the surgical clip under 9018.90.80 as "Instruments and appliances used in medical, surgical, dental or veterinary sciences other instruments and appliances and parts and accessories thereof: other," rather than under HTS 7508.90.50 as ''Other articles of nickel: other: other."

CBP proposes this change as a correction based on the Explanatory Notes (ENs) and prior rulings.

The ENs to 9018 state, in pertinent part, that the heading is inclusive of:

"(1) Needles (for sutures, ligatures, vaccination, blood tests, hypodermic needles, etc.).

* * * (15) Clips (suture, etc.)"

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 CBP has consistently classified under heading 9018. See Headquarters Ruling Letters HQ 965845, HQ 965846, and HQ 965847, dated November 7, 2002.

Based on the foregoing, CBP concludes that the U-Clip is provided for under heading 9018. This determination is in keeping with the ENs to heading 9018, which describe "clips (suture, etc.)" as "instruments used . . . only in professional practice (e.g., by surgeons) . . . to operate." Classification under heading 7508 is thereby precluded, as it is limited to articles not more specifically covered elsewhere. See EN 75.08(b).

CBP now proposes that by application of GRI 1, the U-Clip is classified under subheading 9018.90.80, 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."

Proposed: 9018.90.80, duty-free; Current: 7508.90.50, 3%

November 13, 2008 CBP Bulletin (Vol. 42, No. 47) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2008/