No Mincing Words on Tuna Classification

 As mentioned in my last post, tariff classification is all about giving every word of the relevant heading, subheading, and tariff item its proper meaning. We do that by looking for definitions in the Section and Chapter Notes, commentary in the Explanatory Notes, and prior court decisions. In Starkist Co. v. United States, the first word in question was "minced."

The imported merchandise was prepared tuna fish salad. The tuna was classifiable in Heading 1604, which covers, among other things, prepared or preserved fish. Immediately under Heading 1604 is a subheading dividing the heading into "Fish, in whole or in pieces, but not minced" versus "Other prepared or preserved fish." Customs determined that the tuna in question was not mined and was packed in oil. As a result, the merchandise was subject to a 35% base rate of duty under 1604.14.10. Plaintiff argued that the tuna was minced and not packed in oil, making it classifiable as a prepared meal of 1604.20.05 (10% at the time) or, if minced, that it is not packed in oil.

Thus, the threshold question is what exactly does "minced" mean. The word is not defined in the HTSUS. To fill that void, plaintiff and defendant both offered definitions. Plaintiff's definitions equate minced with being in very small pieces with a surface area of 1/16th of an inch or less. The Government offered more technical definitions including definitions from culinary sources that define 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." The Government also argued that "minced" implies uniform pieces. As a factual matter, the tuna included small pieces that would individually qualify as "minced" under either definition but also included larger chunks, which would seem inconsistent with the Government's proposed definition of "not chunky." 

To resolve the dispute, the Court analogized to an essential character test to determine whether the minced product was predominant. The Court found that the mixed size of the pieces (18% or more of which was "chunky") did not meet the plaintiff's proposed test. Similarly, the lack of uniformity resulted in the merchandise not meeting the government's definition of "minced." Moreover, the Court noted that the verb "mincing" refers to a process of cutting or chopping into small pieces. In this case, the tuna was passed through a chopper set to produce relatively large pieces, which were then folded with mayonnaise by hand. that folding operation, further reduced the size of the pieces but not by cutting, further indicating that the tuna was not minced.

Having found the tuna to be other than minced, the Court moved on to the second question which was whether the tuna was packing in oil. The rule on this is unusually clear. To be packed in oil, oil must be added after the fish is prepared. That means residual cooking oil does not result in the fish being packed in oil. On the other hand, there is no minimum amount of oil that constitutes "packed in oil" and the oil may be an ingredient in a sauce or other additive. Here, the tuna was packed in mayo, which is about 12% oil, and the oil was about 4.5% of the total weight of the merchandise. 

The interesting question here is exactly when the preparation phase ends and the packing begins. Tuna salad requires cooked fish but also folding in the mayo and any other ingredients. According to the plaintiff, that post-cooking process is part of preparation and not packing. If correct, then the tuna is prepared with oil but not packed in oil. 

The court did not buy that argument. It held that the preparation phase was the cooking and that the mixing is part of packing. To get there, it considered the hypothetical problem of cooked fish combined in a large container with oil and then packed into retail containers. The Court found that helpful in concluding that packing is what happens after cooking. This raises, for me, the inevitable question of the raw poke bowl or sushi platter. Is the preparation complete when the raw fish is cut or when the entire dish is prepared, including the addition of any oil-based sauces? If raw fish is marinated or dressed in oil as its only means of "preparation" is it packed in oil? I don't know, but it seems equally reasonable to conclude that "packed in oil" means something other than prepared with oil and that the mixing of tuna salad is part of the preparation.

All of which brings me to this piece of nostalgia in which our hero Klondike Kat declares his intention to make mince meat out of a mouse. I now have a more refined image of exactly what that would entail.