CAFC Says StarKist's Tuna Salad Pouches 'Not Minced, 'Packed in Oil,' Upholds 35% Duty Rate
The U.S. Court of Appeals for the Federal Circuit affirmed a 35% duty rate for StarKist's tuna salad pouches, agreeing with CBP's preferred Harmonized Tariff Schedule subheading, in a March 30 opinion. Upholding the Court of International Trade's opinion, Judges Kimberly Moore, Timothy Dyk and Jimmie Reyna said that the tuna pouches were "not minced" and "in oil," prompting their placement under subheading 1604.14.10.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Subheading 1604.14.10 provides for prepared or preserved fish, including tuna, whole or in pieces, "but not minced" and "in oil," dutiable at 35%. StarKist, though, argued for classification under subheading 1604.20.05, which covers “products containing meat of crustaceans, molluscs or other aquatic invertebrates; prepared meals,” dutiable at 10%. StarKist challenged CBP at CIT, with the case centering on the definitions of "not minced" and "in oil" and how those definitions apply to the tuna pouches.
CIT said minced means a product has been cut or chopped into very small pieces and a seafood preparation may be considered packed in oil when it is packed with a liquid containing any amount of oil that is added at any time after any cooking or preparation stage (see 2011180044). The tuna pouches at issue contain cooked tuna mixed with celery, water chestnuts and a mayonnaise-based dressing with an oil content of 12% to 13%. StarKist said 82% of the pieces in one line of tuna salad pouches, and 58% in another, were small enough to meet the definition it proposed for minced.
The Federal Circuit first addressed whether the tuna was minced, finding no error in the trade court's ruling. "StarKist’s tuna salad products at issue are not separated into very small pieces," the opinion said. "Instead, the products are first roughly chopped, then hand-folded with additional ingredients, which results in a product consisting of some very small pieces and some chunks."
The next question concerned whether the pouches can be classified as "in oil." The court's opinion, along with StarKist's argument, was informed by one Federal Circuit case, Del Monte v. U.S., and one Court of Customs and Patent Appeals case, Richter Bros. v. U.S. In Del Monte, the tuna was placed in the packaging first, then a sauce containing oil was added. In Richter, the oil was incidental due to the herring's cooking preparation and not added for packing.
The Federal Circuit looked to Chapter 16's Note 1 to resolve the dispute. The note says "in oil" is meant to distinguish products that incidentally have oil, as was the case in Richter, from goods in which oil was added separately. "Accordingly, we determine that the tuna salad products are properly classified as 'in oil' under subheading 1604.14.10 because the oil in the tuna salad products was introduced to the fish prior to packing and the oil is not merely incidental to the preparation, as described in Note 1."
(StarKist Co. v. U.S., Fed. Cir. #21-1548, dated 03/30/22, Judges Kimberly Moore, Timothy Dyk and Jimmie Reyna. Attorneys: Michael Roll of Roll & Harris for plaintiff-appellant StarKist; Alexander Vanderweide for defendant U.S. government)