CIT Finds Tuna Salad Pouches 'Not Minced,' 'Packed in Oil,' Affirming High Duty Rate

The Court of International Trade on Nov. 18 weighed in on the meaning of “not minced” and “packed in oil” for seafood preparations in the tariff schedule, finding tuna salad pouches imported by StarKist are both, and must be entered under a high 35% duty rate.

Minced means a product has been cut or chopped into very small pieces, CIT said. StarKist’s tuna did not qualify because the small size of some tuna chunks resulted from a hand mixing process. 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, the trade court said. Mixed with oil-based mayonnaise prior to packing, the tuna salad may be considered “in oil,” it said.

The long-running case had begun in 2014, covering entries as far back as 2013, though StarKist did not file its complaint until 2016. All agreed the tuna salad pouches should be classified under heading 1604 as prepared or preserved fish.

At issue was where it would fall within that heading: subheadings 1604.11 through 1604.19 cover “fish, whole or in pieces, but not minced,” while subheading 1604.20 covers other fish preparations, including those which have been minced. Subheadings 1604.11 through 1604.19 are further subdivided based on whether or not they are packed in oil.

The tuna salad pouches imported by StarKist contained cooked tuna mixed with celery, water chestnuts and a mayonnaise-based dressing with an oil content of 12% to 13%. StarKist said that 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 (pieces with a surface area of 1/16 of an inch or less).

CBP had classified the tuna salad as not minced and packed in oil under subheading 1604.14.10, dutiable at 35%. StarKist argued the tuna salad in the pouches is minced, so it should instead be classified as “prepared meals” under subheading 1604.20.05, dutiable at 10%. Alternatively, even if the tuna salad isn’t minced, it should have been classified as not having been packed in oil, under subheadings 1604.14.22 and 1604.22.30, which carry 6% and 12.5% duties, respectively.

First turning to whether the tuna salad is minced, the trade court said that the term covers not only the size and texture characteristics of the product, but also how it is produced. To be considered minced, the tuna fish had to undergo a process of mincing, it said. StarKist’s tuna did not. Instead, it was chopped into larger chucks about one inch thick, and the smaller pieces result from those larger pieces breaking up during a hand-mixing process when the mayonnaise-based dressing is added to the tuna.

“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,” CIT said. The tuna salad is also “properly classified as ‘not minced’” because it consists of pieces that vary in size, “some of which are significantly larger than ‘very small’ or ‘1/16 of an inch,’” CIT said.

Finding the tuna salad pouches classifiable in subheading 1604.14, the trade court then proceeded to the question of whether they should be classified as packed in oil. While the mayonnaise-based dressing that contains oil is added before the packing process, when it is hand-mixed with the tuna, Additional U.S. Note 1 to Chapter 16 specifies that goods may be considered packed in oil whether such oil or fat was introduced at the time of packing or prior thereto.”

CIT noted that previous cases have found the use of oil used for cooking a food preparation does not render a prepared food packed in oil, but that any amount of oil found in a dressing or sauce that is packed with the fish means the fish preparation has been 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,” CIT said. “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,” it said.

(StarKist Co. v. U.S., Slip Op. 20-164, CIT # 14-00068, dated 11/18/20, Judge Reif)

(Attorneys: Michael Roll of Roll & Harris for plaintiff StarKist Co.; Alexander Vanderweide for defendant U.S. government)