StarKist Co. v. United States , 2020 CIT 164 ( 2020 )

Slip Op. 20-164
UNITED STATES COURT OF INTERNATIONAL TRADE
STARKIST CO.,
Plaintiff,
Before: Timothy M. Reif, Judge
v.
Court No. 14-00068
UNITED STATES,
Defendant.
OPINION
[Denying plaintiff’s Rule 56 motion for summary judgment and granting defendant’s Rule
56 cross-motion for summary judgment.]
Dated: November 18, 2020
Michael E. Roll and Brett Ian Harris, Roll & Harris LLP, for plaintiff.
Alexander Vanderweide, Trial Attorney, Civil Division, Commercial Litigation Branch,
U.S. Department of Justice, of Washington, D.C., for defendant United States. With him
on the brief was Justin R. Miller, Attorney-in-Charge, Jeanne E. Davidson, Director, and
Ethan P. Davis, Acting Assistant Attorney General. Of Counsel was Sheryl A. French,
Office of the Assistant Chief Counsel, U.S. Customs and Border Protection.
Reif, Judge: Plaintiff StarKist Co. (“StarKist” or “plaintiff”), an importer of tuna fish
products, challenges a decision by United States Customs and Border Protection
(“Customs”) to classify four tuna salad products under subheading 1604.14.10 of the
Harmonized Tariff Schedule of the United States (HTSUS), 1 which covers prepared or
1
All citations to the HTSUS, including Chapter Notes and General Notes, are to the
2013 edition.
Court No. 14-00068 Page 2
preserved fish, specifically “[f]ish, whole or in pieces, but not minced . . . [I]n airtight
containers: In oil,” and carries a 35% ad valorem duty.
Customs liquidated the entries in question on different dates from February
through May 2013, and StarKist filed two separate protests to challenge the tariff
classification at liquidation. On January 22, 2016, plaintiff filed a complaint regarding
the appropriate classification of these products. Plaintiff argues that the products at
issue are correctly classified under subheading 1604.20.05, which covers “prepared
meals” that are not “minced,” and carries a 10% ad valorem duty. Alternatively, plaintiff
argues that the products are correctly classified under subheadings 1604.14.22 and
1604.14.30, which cover tuna that is not “minced” and not “in oil,” and carry 6% and
12.5% ad valorem duties, respectively. The question presented is which of these
subheadings properly covers the subject merchandise.
BACKGROUND
This dispute involves the classification of four StarKist tuna fish products. Pl.'s
Statement of Material Facts Not in Issue ¶¶ 1, 3-4 (“Pl. Stmt. Facts”); Def.'s Resp. to
Pl.'s Statement of Material Facts Not in Issue ¶¶ 1, 3-4 (“Def. Resp. Pl. Stmt.”). The
four products at issue are: Tuna Salad Chunk Light (Lunch-to-Go pouches); Tuna Salad
Albacore (Lunch-to-Go pouches); Tuna Salad Albacore (24 retail pouches); and Tuna
Salad Albacore (60 retail pouches). The subject merchandise contains cooked tuna
mixed with celery, water chestnuts and a starch-based dressing. Id. Tuna Salad
Albacore contains albacore tuna and white meat mayo, while Tuna Salad Chunk Light
contains non-albacore tuna and light meat mayo. Pl. Stmt. Facts ¶¶ 3-4; Def. Resp. Pl.
Court No. 14-00068 Page 3
Stmt. ¶¶ 3-4. The subject merchandise is exported to the United States in two different
forms: as retail pouch packs, which contain individual pouches of tuna, or as Lunch-to-
Go kits, which include a tuna pouch and a mint, spoon, napkin and crackers. Pl. Stmt.
Facts ¶ 2; Def. Resp. Pl. Stmt. ¶ 2.
All four varieties of the subject merchandise undergo the same four steps in
manufacturing: (1) garnish preparation, (2) the dressing phase, (3) the tuna phase, and,
(4) the filling and finishing phase. Pl. Stmt. Facts ¶ 5; Def. Resp. Pl. Stmt. ¶ 5. During
the garnish preparation phase, celery and water chestnuts are hand mixed. Id. During
the dressing phase, a mayo base dressing and relish are hand mixed with the blended
celery and water chestnuts. Id. The white meat mayo and the light meat mayo, which
comprise the mayo base dressing for the Tuna Salad Albacore and the Tuna Salad
Chunk Light, respectively, are purchased as finished products from an entity unrelated
to StarKist. Pl. Stmt. Facts ¶¶ 27, 30; Def. Resp. Pl. Stmt. ¶¶ 27, 30. No additional oil
is added to either mayo base beyond its ingredients. Pl. Stmt. Facts ¶ 30; Def. Resp.
Pl. Stmt. ¶ 30. Both mayo base products contain approximately 12 to 13 percent
soybean oil. Id. ¶¶ 28-29. 2
During the tuna phase, tuna is chopped to a thickness of 0.8-1.0 inches for the
Albacore, and 1.0-1.5 inches for the Chunk Light. Pl. Stmt. Facts ¶¶ 21-22, 25; Def.
Resp. Pl. Stmt. ¶¶ 21-22, 25. The chopped tuna is then hand mixed with the mayo base
2
Plaintiff asserts that the light meat mayo base contains 12.18 percent soybean oil.
Defendant disagrees and posits that it contains 12.82 percent soybean oil. Pl. Stmt.
Facts ¶ 29; Def. Resp. Pl. Stmt. ¶ 29. The difference is immaterial for classification.
Court No. 14-00068 Page 4
dressing, relish, celery, and water chestnuts. Id. ¶¶ 5, 21, 24, 33. More than 82% of
Tuna Salad Chunk Light contains fish meat with a surface area of less than 0.3 square
centimeters, and more than 58% of the Tuna Salad Albacore contains fish meat with a
surface area of less than 0.3 square centimeters. Id. ¶¶ 34-35. The mayo base
containing oil is added to the tuna during the hand mixing process. Pl. Stmt. Facts ¶ 33;
Def. Resp. Pl. Stmt. ¶ 33.
Finally, in the filling and finishing phase, metal funnels are used to fill each
pouch with the mixture of tuna, celery, water chestnuts and dressing that is created
from the prior steps. Id. ¶ 5. No additional oil is added to the final phase of
packaging or to any stage of production. Id. ¶¶ 5, 30, 33. The parties generally
agree on the total percentage of oil by weight in each finished tuna product. As a
result of the addition of the mayo base during the tuna phase, that is 4% for the
Tuna Salad Albacore and approximately 5% for the Tuna Salad Chunk Light. Id. ¶¶
32-33. 3
STANDARD OF REVIEW
Customs’ protests are reviewed de novo by the court. 28 U.S.C. § 2640(a)(1)
(2018). This court has jurisdiction under 28 U.S.C. § 2640(a)(1) because plaintiff
3
Because the parties dispute the oil content of the light meat mayo base, the parties’
calculations for the oil content of the Tuna Salad Chunk Light products as a whole also
differ slightly. Plaintiff contends that the total percentage of oil by weight is 4.59% and
defendant argues that it is 4.83%. Pl. Stmt. Facts ¶ 32; Def. Resp. Pl. Stmt. ¶ 32. This
difference is immaterial for classification.
Court No. 14-00068 Page 5
contests Customs’ denial of plaintiff’s protest over the proper classification of the
merchandise at issue.
Summary judgment is permitted when “there is no genuine dispute as to any
material fact . . . .” USCIT R. 56(a). The court must decide materiality by determining
whether any factual disputes are material to the resolution of the action. Anderson v.
Liberty Lobby, Inc., 477 US. 242, 247-48 (1986). In making this determination, “all
evidence must be viewed in the light most favorable to the nonmoving party, and all
reasonable factual inferences should be drawn in favor of the nonmoving party.”
Dairyland Power Coop. V. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citations
omitted). Here, the court does not find any disputes as to material issues of fact, so
summary judgment is appropriate to resolve the dispute over the classification.
The court’s review of classification cases is limited to the record before the court.
28 U.S.C. § 2640(a). “The plaintiff has the burden of establishing that the government’s
classification of the subject merchandise was incorrect . . . .” Lerner New York, Inc. v.
United States, 908 F. Supp. 2d 1313, 1317-18 (CIT 2013). But, “plaintiff does not bear
the burden of establishing the correct classification; instead, it is the court’s independent
duty to arrive at the ‘correct result’ . . . .” Id. (quotations in original) (citations omitted).
The determination of whether an imported item has been properly classified
involves a two-step analysis. Sports Graphics, Inc. v. United States, 24 F.3d 1390,
1391 (Fed. Cir. 1994). First, the court must “ascertain[] the proper meaning of specific
terms within the tariff provision,” and, second, “determin[e] whether the merchandise at
issue comes within the description of such terms as properly construed.” BenQ Am.
Court No. 14-00068 Page 6
Corp. v. United States, 646 F.3d 1371, 1376 (Fed. Cir. 2011). The first step is a
question of law, while the second is a question of fact. Pillowtex Corp. v. United States,
171 F.3d 1370, 1373 (Fed. Cir. 1999).
LEGAL FRAMEWORK
The General Rules of Interpretation (“GRIs”) of the HTSUS govern the proper
classification of merchandise entering the United States. The GRIs “are applied in
numerical order.” ABB, Inc. v. United States, 421 F.3d 1274, 1276 n. 4 (Fed. Cir. 2005).
GRI 1 states that “classification shall be determined according to the terms of the
headings and any relative section or chapter notes.” GRI 3(a) applies specifically to
items in a set put up for retail sale (such as the lunch-to-go pouches). It states that
“when two or more headings each refer to part only of the materials or substances
contained in mixed or composite goods or to part only of the items in a set put up for
retail sale, those headings are to be regarded as equally specific in relation to those
goods, even if one of them gives a more complete or precise description of the goods.”
According to GRI 3(b), “goods put up in sets for retail sale, which cannot be classified
by reference to 3(a), shall be classified as if they consisted of the material or component
which gives them their essential character.”
Finally, GRI 6 states, “the classification of goods in the subheadings of a heading
shall be determined according to the terms of those subheadings and any related
subheading notes and, mutatis mutandis, to the above rules, on the understanding that
only subheadings at the same level are comparable.” Further, “the relative section,
chapter and subchapter notes also apply, unless the context otherwise requires.”
Court No. 14-00068 Page 7
The HTSUS has the force of statutory law. Aves. In Leather, Inc. v. United
States, 423 F.3d 1326, 1333 (Fed. Cir. 2005). Absent contrary legislative intent, tariff
terms are to be understood according to their common and commercial meanings. Len–
Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003). When
interpreting a tariff term, the court may rely on its own understanding of the term and on
secondary sources such as scientific authorities and dictionaries. North Am. Processing
Co. v. United States, 236 F.3d 695, 698 (Fed. Cir. 2001).
Additional U.S. Notes to the HTSUS are also “considered to be statutory
provisions of law for all purposes.” Del Monte Corp. v. United States, 730 F.3d 1352,
1355 (Fed. Cir. 2013) (internal quotations omitted) (citations omitted). These are “legal
notes that provide definitions or information on the scope of the pertinent provisions or
set additional requirements for classification purposes . . . .” Id.
The court may also refer to the Explanatory Notes to the Harmonized Commodity
Description and Coding System, developed by the World Customs Organization (WCO)
(“ENs”). ENs may guide the interpretation of a tariff term since they are “intended to
clarify the scope of HTSUS subheadings and to offer guidance in their interpretation,”
even though the ENs are not controlling. Len–Ron Mfg. Co., 334 F.3d at 1309. The
ENs are “generally indicative of the proper interpretation of a tariff provision.” Degussa
Corp. v. United States, 508 F.3d 1044, 1047 (Fed. Cir. 2007).
Court No. 14-00068 Page 8
DISCUSSION
I. Competing Tariff Provisions
Chapter 16 of the HTSUS covers “preparations of meat, of fish or of crustaceans,
molluscs or other aquatic invertebrates.” In determining the classification of the subject
merchandise, the parties agree that the products are appropriately classified under
Heading 1604 of the HTSUS, which covers “[p]repared or preserved fish; caviar and
caviar substitutes prepared from fish eggs.” However, the parties disagree on the
proper subheading applicable to the subject merchandise. The subheadings under
Heading 1604 can be separated into three categories. The first grouping, subheadings
1604.11 – 1604.19, is limited to “fish, whole or in pieces, but not minced.” The second,
consisting of only 1604.20, covers “[o]ther prepared or preserved fish; prepared meals,”
which includes “minced” fish. The third category, “caviar and other substitutes,” covers
subheadings 1604.31-32.
The “not minced” category is divided by type of fish, with tuna and skipjack
covered by subheading 1604.14, a subheading that is further subdivided depending on
whether the product is “in oil” (1604.14.10), “not in oil” (1604.14.22), or “other”
(1604.14.30). As such, the question of whether the product is “minced” is a threshold
question. Within HTSUS 1604.14, the question of whether the product is “in oil” follows
if the product is determined to be “not minced.”
Court No. 14-00068 Page 9
II. Positions of the Parties
A. Plaintiff
Plaintiff claims that the subject merchandise is correctly classified under
subheading 1604.20.05 as prepared meals that are “minced” and that the court need
not reach the question of whether it is in “in oil.”3 Pl.'s Mem. in Supp. of Pl. Mot. for
Summ. J. (“Pl. Br.”) at 17-18, 22-23. See Am. Compl. ¶ 21. Plaintiff argues against
classification in subheading 1604.14 on the basis that subheading 1604.14 covers tuna
that is “not minced.” According to plaintiff, tuna is “minced” when its production involves
chopping and cutting cooked tuna into small pieces, Pl. Br. at 19, and that process
accurately characterizes the production process for the subject merchandise. Id. The
HTSUS does not define the term “minced,” so plaintiff introduces dictionary definitions
of the term to support the proposition that the subject merchandise is minced. Id. at 18.
In the absence of a defined tariff term, plaintiff cites six dictionary definitions to
support what it deems as the “common and popular” meaning of the term “minced.” Id.
at 18-20. Plaintiff argues that the dictionary definitions of “minced” fit the description of
the subject merchandise. Id. at 19, 21. The referenced dictionaries define “minced”
with the term “small,” and Customs likewise describes the chopped tuna pieces as
“small.” Id.; Pl. Stmt. Facts ¶ 37. Thus, plaintiff claims that this connection supports the
argument that the subject merchandise includes “minced” tuna. Pl. Br. at 19-20.
Additionally, Plaintiff emphasizes that only two of the six dictionary definitions reference
size requirements and none of the dictionary definitions specifies a uniformity
requirement. Pl.’s Opp. to Def.’s Cross-Mot. for Summ. J., at 8-9, 10-12. Thus, plaintiff
Court No. 14-00068 Page 10
argues that the term “minced” does not demand specific measurement requirements.
Id.
Further, plaintiff argues that because the subject merchandise is “minced,” it
should be classified under subheading 1604.20.05. Pl. Br. at 22-23. Plaintiff claims that
the subject merchandise is correctly classified under subheading 1604.20.05 because
the minced tuna products constitute “prepared meals” that consist of more than 20
percent by weight of tuna, vegetables and sauce. Id. The Explanatory Notes to
Chapter 16 provide that “food preparations fall in this chapter provided that they contain
more than 20 percent by weight of . . . fish.” Id. Given the record before the court,
plaintiff claims that the subject merchandise is correctly classified under 1604.20.05.
Alternatively, plaintiff argues that if the court concludes that the subject
merchandise is not “minced,” then the subject merchandise should be classified under
subheading 1604.14.22 or 1604.14.33, rather than subheading 1604.14.10, because
the tuna is not “in oil.” Subheading 1604.14.10 requires that the tuna be packed “in oil.”
Plaintiff’s argument is that the subject merchandise includes oil, but it is not packed “in
oil.”4 Id. at 23. See Am. Compl. ¶ 24. Plaintiff opposes classification under subheading
1604.14.10 on the basis that oil was used to prepare the subject merchandise, but that
it is not “packed in oil.” Pl. Br. at 28-29. Plaintiff supports this assertion through
application of HTSUS Chapter 16 Additional U.S. Note 1, which provides that “for the
purposes of this chapter, the term ‘in oil’ means packed in oil or fat, or in added oil or fat
and other substances, whether such oil or fat was introduced at the time of packing or
prior thereto.” Id. at 23.
Court No. 14-00068 Page 11
Plaintiff also relies on the distinction between preparation and packing made by
the court in Richter Bros., which held that oil used in the preparation phase alone does
not render the product “packed in oil.” Richter Bros., Inc. v. United States, 44 C.C.P.A.
128 (1957); Pl. Br. at 26-27. The Richter Bros. court reasoned that this distinction gave
effect to the revision of Paragraph 718(a) of the Tariff Act of 1930, which resulted in the
insertion of the phrase “prepared or preserved in any manner” before “packed in oil.”
Richter Bros., 44 C.C.P.A. at 131. Plaintiff contends that the preparation phase
includes not only cooking, but also mixing the cooked tuna with the oil-based
mayonnaise dressing, since the mixing process occurs prior to packing. Pl. Br. at 28.
For this reason, based on Richter Bros., the presence of oil in the product — resulting
solely from “preparation,” according to plaintiff — does not properly result in
classification of the product as “in oil.”
B. Defendant
Defendant claims that the subject merchandise is properly classified under
subheading 1604.14.10, because it is comprised of tuna fish that is not “minced” and is
packed “in oil.” See Def.’s Mem. in Supp. of Its Cross-Mot. for Summ. J. and Resp. in
Opp’n to Pl.’s Mot. for Summ. J. (“Def. Br.”) at 6. On this basis, defendant opposes
plaintiff’s motion and files a cross-motion for summary judgment.
Defendant argues that the fish is packed in oil because the “pre-cooked tuna
pieces are mixed with oil-based mayonnaise dressings,” which means that the tuna
salad pouches are packed “in oil” for tariff purposes. Id. at 6. Defendant cites case law
and Additional U.S. Note 1 to Chapter 16 of the HTSUS to support its claim. Id.
Court No. 14-00068 Page 12
Defendant notes that Additional Note 1 does not require a specific quantity or proportion
of oil for fish to be considered packed “in oil”; Additional Note 1 does not limit when,
how, or for what purpose oil is added; nor does it “distinguish between oil that is alone in
a packing medium and oil that is mixed with other ingredients.” Id. at 10. Defendant
argues that two cases — Strohmeyer & Arpe Co. v. United States, 5 Ct. Cust. App. 527
(1917) and Del Monte Corp. v. United States, 885 F. Supp. 2d 1315, 1319-20 (CIT
2012), aff’d, 730 F.3d 1352 (Fed. Cir. 2013) — support the proposition that “any amount
of oil introduced in a tuna salad mixture, base, dressing, packing medium or sauce,
renders that tuna product packed ‘in oil’ for tariff purposes.” Id. at 10-11.
Further, defendant argues that a third case relied upon by plaintiff — Richter
Bros. — should be distinguished, because the fish at issue in Richter Bros. was fried in
oil and packaged in a brine that contained no oil. See id. at 20-21. In Richter Bros., the
Customs Court found that when no oil was used in the actual packing process and as
much of the frying oil as possible was drained from the fish after frying, the product
would not be considered “packed in oil.” Because the subject merchandise in this case
is in fact packaged in a soybean oil-based mayonnaise dressing, defendant argues that
the subject merchandise should be classified as “packed in oil.” Id. at 11-12.
With respect to whether the fish is “minced,” defendant argues that it is not
“because the pieces of tuna in the pouches are not the product of a minced cut, nor of a
minced size, shape, or texture.” Id. at 1. The HTSUS does not define the term
“minced,” so defendant relies on dictionary definitions and culinary sources to rebut
plaintiff’s claim that the court should interpret “minced” simply as “very small.” See id. at
Court No. 14-00068 Page 13
13, 17-20. Defendant argues that the culinary and dictionary sources from which
plaintiff draws its definition of “minced” are properly understood as supporting
defendant’s proposed classification, because these sources — collectively summarized
— describe a mince “as the smallest sized pieces that can be measurably cut — an
approximate, uniform 1/16th x 1/16th x 1/16th — and not chunky.” Id. at 19-20.
Defendant applies its definition of “minced” to the subject merchandise, which
defendant notes was analyzed by Customs’ laboratory and found to contain pieces
spanning a wide range of sizes, from immeasurably small to twelve times the size of a
minced cut. Id. at 14. While “a portion of the measured tuna was ostensibly in the
approximate range of a mince size, a predominant characteristic of a mince are uniform
pieces cut to size.” Id. at 15. Defendant argues that Customs’ findings demonstrate
that the pieces are not uniformly cut, and that this lack of consistency suggests that the
tuna is not minced. See id. at 15-16. Further, defendant asserts that plaintiff’s
production records show that StarKist does not intend for the tuna to be minced —
“rather, [plaintiff] intends for the tuna pieces to be chunky.” Id. at 6. Defendant argues
that the production process is intended to produce tuna pieces that are chunky and vary
in size and shape, “not the uniform product of an exacting minced cut.” Id. at 16.
In addition to arguing that the fish has been packed in oil and that it is not minced
for HTSUS purposes, defendant also responds to plaintiff’s argument for application of
subheading 1604.20 by noting that this subheading is a residual classification: it is
intended to cover instances in which another subheading does not more specifically
cover the merchandise in question. See id. at 12-13. Since the subject merchandise “is
Court No. 14-00068 Page 14
specifically described by HTSUS subheading 1604.14 as pieces of fish, it cannot be
classified in the residual “other” subheading of HTSUS, 1604.20.” Id. at 13.
III. Classification of the Subject Merchandise
The subject merchandise is properly classified under HTSUS 1604.14.10
because the subject merchandise consists of “fish, whole or in pieces, but not minced”
and is “in oil.” The products at issue are correctly described as “in pieces, but not
minced” because, while consisting partially of very small pieces, they vary significantly
in shape, size and texture. The pieces are also not produced by a minced cut, but
rather by a process that includes both chopping and hand-mixing, which indicates that
even the small pieces are not truly minced.
The determination of whether a product is “in oil” depends on whether the oil was
added during the preparation phase or afterwards, during the packing phase. In this
case, the oil was added to StarKist’s products during the packing phase after the
preparation of the tuna. Therefore, the products are properly classified as “in oil.” The
court begins by analyzing whether the subject merchandise is “minced” or not, and then
turns to the question of whether it is packed “in oil.”
A. Minced
Based on the interpretive guidance of GRI 1 and GRI 6, all of the subject
merchandise at issue is properly classified under HTSUS 1604.14.10, which covers
“fish, whole or in pieces, but not minced” that is “in oil.” The subheadings within
Heading 1604 fit into three main categories: (1) “Fish, whole or in pieces, but not
minced” (1604.11–19); (2) “Other prepared or preserved fish” (1604.20); and (3)
Court No. 14-00068 Page 15
“Caviar” (1604.31–32). The product is not caviar and “other” provisions are intended to
function as residual classifications. See, e.g., Orlando Food Corp. v. United States, 140
F.3d 1437, 1442 (Fed. Cir. 1998) (using an “other” sub-heading as a “catch-all”
provision, appropriate when other classifications are not satisfactory). Therefore, the
threshold question in this case is whether the subject merchandise consists of “fish,
whole or in pieces, but not minced,” such that classification under HTSUS 1604.14 is
proper. Specifically, the question is whether the tuna, in its entirety, is properly
classified as minced.
The term “minced” is not defined under the HTSUS, so the court analyzes
several different factors to interpret the meaning of “minced” under the statute and
applies them to determine whether the tuna is correctly classified as minced.
Specifically, the court examines (1) whether the pieces, based on their size and physical
characteristics, collectively, should be considered “minced,” and, (2) whether the tuna
pieces are the product of a minced cut. Based on these factors, the court concludes
that the subject merchandise as a whole is properly categorized as “in pieces, but not
minced.”
1. The Size and Physical Characteristics of the Tuna Pieces Are
Not Consistent with a “Mince”
The subject merchandise consists of various pieces of tuna that vary significantly
in size, shape and texture. Customs Laboratory Report; Deposition of Luis Quinones
(“Quinones Dep.”). The subject merchandise includes some tuna pieces equivalent in
size to a minced piece, as well as pieces substantially larger. See Customs Laboratory
Court No. 14-00068 Page 16
Report at 4; see also Quinones Dep. at 14, 22; Ex. 9 (showing histogram pages of
Laboratory analysis). The language of the tariff — specifically, the phrase “in pieces,
but not minced” — suggests the possibility of small pieces, including pieces that are
equivalent in size to a “minced piece.” The language does not, by its own terms,
specifically exclude from “[f]ish, whole or in pieces, but not minced” the presence of very
small pieces. Thus, the fundamental character of the tuna still may be chunky, despite
the incidental presence of very small pieces.
While this case does not implicate GRI 3(b) on the question of whether the tuna
is minced, 4 the inquiry — determining which pieces of tuna form the essence of the
subject merchandise — ultimately bears sufficient resemblance to a test of “essential
character” such that an “essential character” analysis is informative here. This Court
has previously held that the essential character of an entry is “that attribute which
strongly marks or serves to distinguish what it is. Its essential character is that which is
indispensable to the structure, core or condition of the article, i.e., what it is.” Oak
Laminates D/O Oak Materials Group v. United States, 8 CIT 175, 180, 628 F. Supp.
1577 (1984) (citing United China & Glass Co. v. United States, 293 F. Supp. 734, 61
Cust. Ct. 386, C.D. 3637, C.D. 3637 (1968)). Applying this concept to the product at
issue, the court must consider whether the minced pieces of the subject merchandise
define the character of the subject merchandise. Altogether, the pieces equivalent in
4
To implicate GRI 3(b), the subject merchandise would have to be, prima facie,
classifiable under two or more subheadings. Here, the product must either be minced
or not minced; the product as a whole may not be classified as both.
Court No. 14-00068 Page 17
size to a mince do not predominate to such an extent that they “distinguish what it is.”
See id.
Plaintiff and defendant propose different formulas to determine the precise
meaning of “minced” under the statute. Neither formula provides a basis for the court to
find that the subject merchandise as a whole should be considered minced. Plaintiff’s
preferred definition for minced “includes food products that have been chopped or cut
into very small pieces with a surface area of 1/16 of an inch or less.” Pl. Br. at 22.
Defendant favors a definition that emphasizes uniformity of texture and shape. Def. Br.
at 13. For defendant, “[a] mince is not just tiny or very small pieces, but the smallest
sized pieces that can be measurably cut . . . .” Def. Br. at 13.
Neither plaintiff’s nor defendant’s framework provides a basis on which the court
may conclude that minced pieces define the character of the subject merchandise.
According to plaintiff, through its formula, “significantly more than 82% of one product
[Tuna Salad Chunk Light] has the requisite surface area to meet the requirement of
“minced” and “significantly more than 58%” of the other product [Tuna Salad Albacore]
contains the requisite surface area. Pl. Br. at 21. Even these proportions, however, do
not meet the plaintiff’s own definition of minced, which states that food products must
have been chopped or cut into pieces “with a surface area of 1/16 of an inch or less.”
Pl. Br. at 22 (emphasis supplied). Plaintiff’s definition of a minced cut suggests that
there is a limit to the size — measured by surface area — of what constitutes a
“minced” piece, and as defendant notes, some of the pieces are as much as twelve
times that size. See Customs Laboratory Reports; Quinones Dep. While some of the
Court No. 14-00068 Page 18
pieces are the size of a “mince,” according to plaintiff’s own definition, the variation in
the surface area of the pieces shows that the subject merchandise’s character as a
whole should not be considered minced because it contains pieces that are varied in
size and shape.
The subject merchandise also does not meet defendant’s definition of minced.
Even without specific measurements to define a “mince,” the wide range of piece sizes
and lack of uniformity contribute to the conclusion that the product is not minced.
Significantly, these larger pieces impart the fundamental character of the tuna as a
whole, which is comprised of pieces of varying sizes, lacks uniformity and contains
chunks. See Laboratory Photos. Indeed, as noted above, some of the pieces are
substantially larger than others, and the overall consistency is “chunky.” See
Laboratory Reports; Quinones Dep. A mince, according to both parties’ definitions, is
small and relatively uniform in size, which suggests that a mince is not chunky in texture
or shape. However, in StarKist’s products, the presence of certain tuna pieces
equivalent in size to minced tuna is purely incidental; the defining character is more
accurately described as chunky, with pieces of varying size. One variety of the products
at issue is even marketed as “Tuna Salad Chunk Light.” (Emphasis supplied). As such,
“minced” does not properly characterize the subject merchandise as a whole, no matter
which definition is used.
2. The Tuna Pieces Are Not the Product of a Minced Cut
The tuna here is not the product of a minced cut, which further compels
classification as “in pieces, but not minced.” The tariff language — specifically, the use
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of the verb form of “minced” rather than the noun “mince” — suggests that the process
by which the pieces are created is critical to determining whether they fall within the
meaning of the provision.
Both plaintiff’s and defendant’s definitions of “minced” involve consideration of
not only the size of the pieces but also the process by which StarKist cuts or chops the
tuna to produce those small pieces. As noted above, defendant’s definition states that
“[a] mince is not just tiny or very small pieces, but the smallest sized pieces that can be
measurably cut . . . .” Def. Br. At 13. In other words, a mince is the product of cutting
pieces as small as they can be cut. Plaintiff’s definition “includes food products that
have been chopped or cut into very small pieces with a surface area of 1/16 of an inch
or less.” Pl. Br. at 22. This definition is even more explicit that cutting or chopping must
serve as the method that produces the small pieces; the process of cutting is as integral
to this definition as the small size of the resulting pieces. Thus, based on both
definitions, the small pieces of a minced cut are the product of a purposeful process that
involves cutting or chopping. Taking into account the size, shape and texture
characteristics of what constitute minced pieces as well as the process by which they
are produced, the court concludes that mincing may be defined as cutting or chopping
into very small pieces.
While StarKist’s production process involves some chopping, Morales Decl. ¶¶
30-34; Exhibits C and D, ECF No. 60, its process for producing the tuna pieces differs
sharply from mincing. Here, for both the Albacore and the Chunk Light tuna, cooked
tuna loins are passed through a chopper with four blades, set to achieve a thickness
Court No. 14-00068 Page 20
chunk of 0.8-1.0 inches for Albacore and 1.0-1.5 inches for Chunk Light. Morales Decl.
¶ 34. An operator then hand-folds the tuna pieces and the mayonnaise-based dressing
for about 18-20 minutes, breaking up some of the larger pieces. Morales Decl. ¶ 30 and
Exhibits C and D. Thus, the pieces produced by the chopping are substantially larger
than the plaintiff’s own “1/16 of an inch or less” definition of minced. It is only when an
operator hand-blends the tuna with the dressing, after the chopping phase is already
complete, that the requisite “very small pieces” are produced. The formation of these
pieces by hand-blending — rather than the chopping that characterizes production of a
minced cut — illustrates that the subject merchandise is not the product of a minced cut.
The products at issue in this case are properly classified as “not minced”
because they consist of pieces that are varied in size, some of which are significantly
larger than “very small” or “1/16 of an inch”; and because the small pieces are not the
product of a minced cut but of a hand-blending process. As such, the fish is properly
classified under HTSUS 1604.14.10 because the subject merchandise consists of fish
that is “in pieces, but not minced.”
B. In Oil
HTSUS Subheading 1604.14 contains three categories at the six-digit level:
1604.14.10 covers “tunas and skipjack, in airtight containers, in oil,” 1604.14.22 covers
“tunas and skipjack, in airtight containers, not in oil,” and 1604.14.30 covers “other:
albacore in foil or other flexible containers; other: in foil or other flexible containers;
other.” (Emphasis supplied). The tuna products at issue are “in oil,” so the correct
classification is 1604.14.10.
Court No. 14-00068 Page 21
1. Any Amount of Oil Is Sufficient to Render a Product Packed in
Oil
To qualify as “in oil” under HTSUS Heading 1604, Additional U.S. Note 1 clarifies
that the subject merchandise must be “packed” in oil. HTSUS Chapter 16, Additional
Note 1. However, the Note does not provide specific guidance as to how much oil must
be present in the packing medium for fish to be packed “in oil.” In 2013, the Court of
Appeals for the Federal Circuit (“Federal Circuit”) provided guidance on this issue. In
Del Monte Corp. v. United States, the merchandise at issue was three varieties of tuna
fillets and strips packed in a sauce. 730 F.3d 1352 (Fed. Cir. 2013). The tuna was
processed separately from the sauce, which was added only after the tuna was placed
into its packaging. Id. at 1353. The sauce contained sunflower oil, which constituted a
range between 3.1 and 12.4 percent of the sauce’s weight across the three products.
Id. The court ruled that the products were properly classified as “in oil” because the
tuna was not cooked in oil and the sauce was added after the cooking process:
Del Monte's products were properly classified as “in oil” under subheading
1604.14.10 according to Additional U.S. Note 1. It is undisputed that the
tuna is not cooked in oil, that the tuna is placed in the packaging after being
prepared without using any oil, and that a sauce containing some oil is then
added to the pouch. That is sufficient to describe the Lemon Pepper and
Lightly Seasoned varieties as tuna “packed . . . in added oil . . . and other
substances” and thus to bring the goods within the scope of subheading
1604.14.10.
Id. at 1355. The court interpreted Additional U.S. Note 1 to clarify that “goods are
considered ‘in oil’ even if the liquid substance does not consist entirely of oil, and
[Additional U.S. Note 1] sets no minimum threshold for the amount of oil that
must be present.” Id. (internal quotations in original). The court relied on this
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interpretation in holding that even a very small percentage of oil, between 0.62
and 2.48 percent of the total weight of the merchandise, was sufficient for the
merchandise to be classified as packed “in oil.” See id.
2. A Product is Packed in Oil If the Oil is Added After the
Preparation of the Product
Additional Note 1 to HTSUS Chapter 16 places no temporal requirements
on when the addition of oil occurs to render a product “in oil.” Note 1 also
specifically covers oil “introduced at the time of packing or prior thereto” and case
law further substantiates the plain language of the statute. This Court’s
predecessor, the United States Customs Court, first had occasion to interpret the
term “in oil” in 1915, when that court held that a fish product that contained oil
was properly classified as “in oil” without regard to whether the oil originated from
the cooking process or the sauce. Strohmeyer & Arpe Co., 5 U.S. Cust. App. at
527. In Strohmeyer, the plaintiff manufactured a fish product that was both fried
in oil and packed in a tomato sauce that contained oil. Id. The final product
contained approximately 5.7 percent oil, with an indeterminate small share that
originated from the frying oil. The court held that it did not matter how the oil
came to be present in the tomato sauce — the mere presence of oil in the
packing medium (i.e., the tomato sauce) was sufficient for the merchandise to be
considered “packed” in oil. Id.
Over 40 years later, the court qualified its holding in Strohmeyer and determined
that a clear distinction exists between the preparation and packing stages for the
Court No. 14-00068 Page 23
purposes of the tariff provision. In Richter Bros., the fish product was fried in oil but not
mixed with any dressing that itself contained oil. 44 C.C.P.A. at 128. “It appears that
whatever oil was contained in the tins in which the herring were packed, if indeed there
was any, consisted of the natural oil of the fish, plus any residue from the herring oil and
tallow in which the fish were fried.” Id. at 129. The court cited revisions to Paragraph
718(a) of the Tariff Act of 1930, which resulted in the addition of the phrase “prepared or
preserved in any manner” before “packed in oil.” Id. at 130. The court interpreted the
revision as clarifying that the provision does not include fish products in which no oil
was added after the fish was “prepared or preserved.” Id. The court relied on this
interpretation in holding that fish, which was fried in oil, drained, and then packed in a
liquid without oil, was not “packed in oil” because “no oil whatever [sic] was used in the
actual packing process.” Id. at 131. The key contribution of the Richter Bros. court to
the precedent of Strohmeyer is the distinction between oil added during the preparation
stage and oil added during the packing stage. That distinction results in the implication
that the preparation stage ends after cooking.
The summation of these prior cases is that if the fish is cooked in oil and no oil is
present in the dressing (as in Richter Bros.) then the fish cannot be said to be “packed”
in oil for HTSUS purposes. But if the fish is mixed with a dressing or sauce that
contains oil — as in Strohmeyer and Del Monte — then it is considered “packed” in oil,
regardless of the cooking method. Therefore, Richter Bros. and Del Monte stand for the
proposition that the addition of oil after the fish is prepared (cooked) renders the fish “in
oil.” There is a window of time — which begins after the fish is cooked and ends when
Court No. 14-00068 Page 24
the package itself is closed — and the addition of any oil within this time period renders
the product “in oil.” The introduction of oil during the packing “or prior thereto,” but after
cooking, renders the product “in oil.”
3. StarKist’s Products are Packed In Oil
It is undisputed that StarKist’s products contain enough oil to be considered “in
oil” for tariff classification purposes because any amount of oil is sufficient. In addition,
the oil is added to StarKist’s products after the preparation stage, so the products are
“packed” in oil. Therefore, classification under HTSUS 1604.14.10 is proper.
i. StarKist’s Products Contain Enough Oil To Be Classified
as In Oil
The subject merchandise at issue falls squarely within HTSUS 1604.14.10 as fish
“in oil.” The tariff provision does not set a minimum oil content threshold. Moreover, the
presence of oil in this case is not seriously in dispute, and the oil content of the subject
merchandise here is very similar to the oil content of the products at issue in Del Monte,
which were found to be “in oil.” See 730 F.3d at 1355.
The subject merchandise in this case contains tuna fish that is packed in a
mayonnaise dressing. The parties agree that the white meat mayo base dressing used
in the Tuna Salad Albacore products contains 12.82 percent soybean oil by weight. Pl.
Stmt. Facts ¶¶ 31-32; Def. Resp. Pl. Stmt. ¶¶ 31-32. The parties disagree about the oil
content of the light meat mayo base dressing used in the Tuna Salad Chunk Light
products. Pl. Stmt. Facts ¶ 29; Def. Resp. Pl. Stmt. ¶ 29. Plaintiff contends the light
meat mayo base contains 12.18 percent oil by weight, while defendant argues the light
Court No. 14-00068 Page 25
meat mayo base contains 12.82 percent oil by weight. Id. However, this slight
discrepancy is immaterial because any amount of oil is sufficient. See Del Monte, 730
F.3d at 1355.
In addition, the parties agree that the Tuna Salad Albacore products have a total
oil content of 4.42 percent by weight. Pl. Stmt. Facts ¶ 32; Def. Resp. Pl. Stmt. ¶ 32.
The parties disagree about the total oil content of the Tuna Salad Chunk Light products
because of the disagreement about the oil content of the light meat mayo base
dressing, but the difference between the oil content levels is also immaterial because
any amount of oil is sufficient. See Del Monte 730 F.3d at 1355; Pl. Stmt. Facts ¶ 32;
Def. Resp. Pl. Stmt. ¶ 32. Therefore, the oil content of StarKist’s finished products is
well beyond the threshold articulated by the court in Del Monte as sufficient to render
those products “in oil.” See 730 F.3d at 1355 (holding that a total oil content of only
0.62 percent by weight was enough for a product to be “in oil”).
ii. The Oil in StarKist’s Products is Added After the
Preparation Phase
The facts in this case are similar to Del Monte — tuna products that were not
fried or otherwise prepared in oil but were mixed with a dressing that contained oil.
Plaintiff attempts to distinguish the present case from Del Monte by contending that
StarKist’s products are combined with the dressing in the preparation phase, before
they are placed in the packaging (the packing phase). Pl. Br. at 28. Plaintiff contends
that the merchandise in this case is more like that in Richter Bros. because here the
Court No. 14-00068 Page 26
dressing containing oil was added during the preparation phase, as in Richter Bros. —
not during the packing phase as with the products in Del Monte. Id.
To reach this conclusion, plaintiff advances a novel argument that the
preparation phase includes an additional step beyond cooking, namely, hand-mixing the
tuna with the dressing containing oil. Id. It follows from plaintiff’s argument that the
preparation stage continues until the product is physically placed in its packaging (the
packing phase). Id. However, plaintiff mistakenly conflates preparation of the finished
product — tuna salad — with preparation of the fish itself. The operative term in
HTSUS Heading 1604 is “prepared or preserved fish.” The plain reading of this term is
that “prepared or preserved” modifies the word “fish.” Plaintiff’s argument that
preparation refers instead to the product as a whole misconstrues the plain meaning of
Heading 1604. Plaintiff’s interpretation also directly conflicts with the interpretation of
the Richter Bros’ court that the term “prepared or preserved in any manner” refers to the
fish itself, not the entire manufacturing process of the finished product.
In addition, no prior case has held that the preparation phase includes the
addition of other ingredients after cooking. See Richter Bros., 44 C.C.P.A. at 129
(finding that “after the fish had been cooked, as much of the oil as possible was drained
off . . . the preceding steps relate to preparation, as distinct from packing”); see Del
Monte, 730 F.3d at 1353 (finding that “the tuna is not cooked or prepared in oil and is
processed separately from the sauce”). Plaintiff’s reading of the statute here requires
that the court interpret this provision in a way that belies the plain language of the
statute and is inconsistent with prior case law.
Court No. 14-00068 Page 27
StarKist carries out the preparation phase by cooking the tuna in a “pre-cooker”
that does not use oil. Pl. Stmt. Facts ¶ 12-15. After the cooking phase, the tuna is
chopped into smaller pieces and hand-mixed with the mayonnaise dressing, which
contains oil. Pl. Stmt. Facts ¶ 22. The mixture is then physically placed in its packaging
(“Filling and Finishing Phase”). Pl. Stmt. Facts ¶ 5.
During oral argument, plaintiff argued that the “or prior thereto” language “was
inserted . . . to catch a situation where [sic] you have a pouch that you first fill with oil
and then add fish. That’s certainly considered to be in oil, because the oil is part of the
packing process.” Transcript of Oral Argument at 40.
Additional U.S. Note 1 makes clear that a product is properly considered to be “in
oil” regardless of “whether such oil . . . was introduced at the time of packing or prior
thereto.” (Emphasis supplied). Plaintiff would like the court to draw an arbitrary
distinction between the addition of oil before the fish is placed in its packaging and
afterwards. However, if the tuna in Del Monte was combined with the oil-based
dressing in a separate container minutes before being placed in the pouch, plaintiff’s
interpretation would lead to the result that the fish is not “in oil” because the oil was not
introduced within the confines of the packaging.
The distinction proffered by plaintiff is not supported either by the plain meaning
of the Note, or the holdings in Richter Bros. and Del Monte. The hypothetical adapted
from Del Monte bears great similarity to the process used to make StarKist’s products.
Classifying StarKist’s products as “not in oil” simply because the oil was introduced in a
Court No. 14-00068 Page 28
large container before the mixture was transferred to several smaller containers would
narrow without support the language of Note 1.
The products in this case are properly classified as “in oil” under HTSUS
1604.14.10. Both the Chunk Light and Albacore products contain enough oil to be
considered “in oil.” In addition, classification under 1604.14.10 is proper because the oil
was added to the cooked fish as a separate dressing after preparation and prior to
packing.
D. Classification of the Lunch-To-Go-Pouches
As noted previously, some of the subject merchandise is imported in the form of
“Lunch-to-Go” kits. These kits include crackers, mint, napkins and a spoon, in addition
to the tuna. Pl. Stmt. Facts ¶ 2. Therefore, the kits consist of materials that are properly
classifiable under five different HTSUS headings. When goods are, prima facie,
classifiable under two or more headings, GRI 3 applies to the classification. Under GRI
3(a), when “two or more headings each refer to part only of the materials or substances
contained in mixed or composite goods or to part only of the items in a set put up for
retail sale, those headings are to be regarded as equally specific in relation to those
goods.” That is the case here, as it is undisputed that the to-go pouches constitute “a
set put up for retail sale.” Pl. Br. 29-31. Def. Br. 22-23.
Accordingly, the “Lunch-to-go” kits are classified according to GRI 3(b). GRI 3(b)
specifies that the product “shall be classified as if they consisted of the material or
component which gives them their essential character.” Here again, it is undisputed
that of the retail kit components, it is the tuna that imparts its essential character. Pl. Br.
Court No. 14-00068 Page 29
29-31. Def. Br. 22-23. Therefore, the “Lunch-to-go” kits are properly classified under
the same tariff provision as the tuna pouches: subheading 1604.14.10
CONCLUSION
In the 2002 Walt Disney Feature Animation, Lilo & Stitch, Lilo, voiced by Daveigh
Chase, arrives late to her hula dance class. 5 Lilo’s sister does not see a difference
between feeding Pudge a peanut butter sandwich or a tuna sandwich — both, after all,
are food. Lilo, however, points out that while the sandwich has many components, it is,
first and foremost, fish. The following conversation ensues between Lilo and her hula
teacher, voiced by Kunewa Mook:
Hula Teacher: “Lilo, why are you all wet?”
Lilo: “It's sandwich day. Every Thursday I take Pudge the fish a peanut butter sand-
wich . . .”
Hula Teacher: “``Pudge’" is a fish?”
Lilo: “And today we were out of peanut butter. So I asked my sister what to give him,
and she said ``a tuna sandwich'. I can't give Pudge tuna!”
Lilo (whispering): “Do you know what tuna is?”
Hula Teacher: “Fish?”
Lilo: [hysterical] “It's fish! If I give Pudge tuna, I'd be an abomination!”
Just like Lilo in Lilo and Stitch, the court must nibble on the question of what
constitutes the essence of an item. While the subject merchandise consists of different
5
LILO & STITCH (Walt Disney Animation Studios 2002).
Court No. 14-00068 Page 30
components it is, first and foremost, “prepared or preserved fish,” which, viewed in its
entirety, is “not minced” and “in oil.”
/s/ Timothy M. Reif
Timothy M. Reif, Judge
Dated: November 18, 2020
New York, New York