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HQ 957534




August 7, 1995

CLA-2 R:C:M 957534 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9018.90.80

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Protest 1001-94-106187; Medicut Shears; scissors; Section XVIII, note 1(h); Additional Rule of Interpretation 1(a); HQ 088876, NY 810138; heading 8213;
EN 90.18

Dear Regional Commissioner:

The following is our decision regarding Protest 1001-94-106187, which concerns the classification of "Medicut Shears" under the Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise was entered on December 20, 1993, and the entry was liquidated on August 12, 1994. The protest was timely filed on September 6, 1994.

FACTS:

The articles in question are referred to as "Medicut Shears," which are medical utility scissors. The Medicut Shears are 7 « inch scissors with offset stainless steel blades and plastic handles. One blade edge is serrated, the other sharpened. They feature a safety bandage tip on the longer blade, which the protestant states is designed to facilitate safe blade access between a bandage and the patient's skin. The plastic handle has one large ring to accommodate the third, fourth and fifth finger, and a smaller thumb ring.

The protestant states that the Medicut Shears are used by health care - 2 -
professionals in a variety of non-surgical applications, such as, cutting gauze and other bandage material, including casts. They can be used to cut wire or metal in instances where those materials are used, such as, in rigid splints. They are designed to withstand repeated autoclaving at temperatures of up to 290 degrees Fahrenheit for use in sterile environments. The protestant states that the Medicut Shears are made from 420 surgical grade stainless steel (high chromium content). They have a blade rivet that is machine-affixed and is designed to withstand a pull force of 88kg. They have a Rockwell hardness of C58 and a sandblasted finish, which sets them apart from shears sold to consumer markets. The protestant further states that 99 percent of their products, including the Medicut Shears, are marketed to the health care industry.

The Medicut Shears were entered under subheading 9018.90.80, HTSUS, which provides for other instruments and appliances used in medical, surgical, dental or veterinary sciences. They were classified upon liquidation under subheading 8213.00.90, HTSUS, which provides for other scissors, tailors' shears and similar shears, valued over $1.75/dozen.

ISSUE:

Whether the Medicut Shears are classifiable as scissors, tailors' shears and similar shears, under heading 8213, HTSUS, or as instruments and appliances used in medical, surgical, dental or veterinary sciences, under heading 9018, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System, 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 headings under consideration are as follows:

8213 Scissors, tailors' shears and similar shears . . .

9018 Instruments and appliances used in medical, surgical, dental or veterinary sciences . . . - 3 -

Note 1(h) to section XV, HTSUS, states that the section, which includes chapter 82, does not cover the "[i]nstruments or apparatus of section XVIII." Thus, if the Medicut Shears are classifiable under heading 9018, HTSUS, a section XVIII heading, they cannot be classified as scissors under heading 8213, HTSUS.

EN 90.18, pg. 1487, states that heading 9018, HTSUS, "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."
The note, pg. 1488, further points out that "a number of the instruments used in medicine or surgery (human or veterinary) are, in effect, tools (e.g., hammers, mallets, saws, chisels, gouges, forceps, pliers, spatulae, etc.), or articles of cutlery (scissors, knives, shears, etc.)." According to EN 90.18, articles like the Medicut Shears can only be classified under heading 9018, HTSUS, if "they are clearly identifiable as being for medical or surgical use by reason of their special shape, the ease with which they are dismantled for sterilisation, their better quality manufacture, the nature of the constituent metals or by their get-up . . . ."

The Medicut Shears are used by health care professionals in a variety of non-surgical applications, including cutting gauze and other bandage material, as well as, casts. While they are similar in shape to many consumer scissors, the Medicut Shears are in fact quite different. They have a safety bandage tip on the longer blade, which is designed to facilitate safe blade access between a bandage and the patient's skin (consumer scissors sometimes have safety tips). They are made from 420 surgical grade stainless steel (high chromium content), which has a higher heat-treated hardness, strength and wear resistance (consumer scissors are generally made from 410 stainless steel--much lower chromium content). They have a Rockwell hardness of C58 and a sandblasted finish, common to high-grade surgical instruments (consumer scissors are generally hardened to C45 and are not sandblasted). They are designed to withstand repeated autoclaving at temperatures of up to 290 degrees Fahrenheit so that they can be used in sterile environments (consumer scissors are generally not autoclavable). Further, they have a blade rivet that is machine-affixed and designed to withstand a pull force of 88kg (consumer scissors generally have a rivet strength of 50kg). All of these factors make the Medicut Shears approximately twice the price of the similarly-shaped consumer scissors. Moreover, the protestant states that 99 percent of their products, including the Medicut Shears, are marketed to the health care industry.

In HQ 088876, dated February 3, 1992, Customs classified iris dissecting scissors and "Spencer" stitch scissors under subheading 9018.90.80, HTSUS. The scissors were specially shaped and made of 420 surgical grade stainless steel, and were marketed for medical or surgical use. Citing Additional U.S. Rule of Interpretation - 4 -

1(a), HTSUS, we held that the scissors were "goods which belong to the class of medical or surgical instruments."

It is our opinion that, based on the above-listed factors, the Medicut Shears belong to the broad "class of medical instruments" designed to "treat an illness . . ., etc." See EN 90.18; NY 810138, dated May 15, 1995 (wherein other bandage cutting scissors--"Lister Bandage Scissors"--were held to be classifiable under subheading 9018.90.80, HTSUS). They are therefore classifiable under heading 9018, HTSUS, specifically under subheading 9018.90.80, HTSUS.

HOLDING:

The Medicut Shears are classifiable under subheading 9018.90.80, HTSUS.

The protest should be GRANTED. In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant,

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