[00:00:00] Speaker 01:
The case for argument today is 21-1548, Starkist v. United States.

[00:00:06] Speaker 01:
Mr. Rohl, please proceed.

[00:00:14] Speaker 01:
Did they have to hire an attorney with a bread name for the sandwich cookie in the case?

[00:00:20] Speaker 01:
Sorry.

[00:00:20] Speaker 01:
You go ahead.

[00:00:22] Speaker 04:
There'll be a few intended puns along the way, I'm sure.

[00:00:25] Speaker 01:
I imagine I'm not the first one to mention that.

[00:00:28] Speaker 04:
And we'll see some red herrings in this case, I'm sure.

[00:00:32] Speaker 01:
But I'm pumped.

[00:00:32] Speaker 04:
I couldn't resist.

[00:00:34] Speaker 04:
Good morning, Your Honors, and may it please the court a mic roll from Roland Harris for StarCast.

[00:00:40] Speaker 04:
Luckily, this is a fairly simple case in terms of the product and what's happening.

[00:00:44] Speaker 04:
The issues, as you know from reading the briefs, are whether the tuna fish salad is minced or not.

[00:00:50] Speaker 04:
That's issue one.

[00:00:51] Speaker 04:
And issue two is, is it packed in oil or not?

[00:00:55] Speaker 04:
And we don't get to the second issue until we resolve the first issue.

[00:00:58] Speaker 04:
On the issue of is it minced, the court below, Judge Reif, essentially agreed with our definition of what the word minced means.

[00:01:08] Speaker 04:
Because he said, it's cut or chopped into very small pieces.

[00:01:13] Speaker 04:
And specifically, I'm referring there to page four of a slip opinion where he's characterizing the party's positions.

[00:01:20] Speaker 04:
And he says, you are cut or chopped into very small pieces.

[00:01:24] Speaker 04:
Where we believe he erred is he went further than that and added other criteria such as uniformity, size, texture.

[00:01:32] Speaker 04:
If we back up and start with the basic concepts of customs law, which is these are statutes, the tariff terms like mince.

[00:01:39] Speaker 04:
And we look first to the tariff to see is there a definition in the tariff for the word mince.

[00:01:43] Speaker 04:
And there's not.

[00:01:44] Speaker 01:
What is the problem with definition that includes the 1 16th of an inch in length concept?

[00:01:51] Speaker 01:
When you say very small pieces, I think that there needs to be something, some measure of assessing whether they're small.

[00:01:58] Speaker 01:
And let me just say, I thought that your argument that they're smaller than the tuna as a whole was ridiculous.

[00:02:03] Speaker 01:
Because that would be like saying a piece of beef tenderloin that is this large is smaller than the cow as a whole from which it came, and therefore it's minced meat.

[00:02:12] Speaker 01:
That makes no sense.

[00:02:14] Speaker 04:
Well, I'll address the 1 16th issue first.

[00:02:18] Speaker 04:
On the 1 16th of an inch issue, that

[00:02:21] Speaker 04:
came primarily from customs, because someone has to decide what is small to your latter comment there, right?

[00:02:27] Speaker 04:
A beef tenderloin relative to a cow may be small, but is it mince, right?

[00:02:31] Speaker 04:
And so there's nothing in the common or commercial meaning of what's that size, the 1 16th, 1 8th, et cetera.

[00:02:37] Speaker 04:
So customs introduced that definition.

[00:02:40] Speaker 04:
The court seems adopted it, although when you read Judge Reif's decision below, I don't think he held it as kind of a bright line rule.

[00:02:47] Speaker 04:
But even with that standard, we meet it.

[00:02:51] Speaker 04:
The majority of the product when you open the pouch couldn't even be measured when they custom sent the product to the lab to measure.

[00:02:58] Speaker 04:
They couldn't measure around half of the product if you look at the lab report.

[00:03:01] Speaker 00:
Councilor, you say the majority of the product.

[00:03:03] Speaker 00:
How about all of it?

[00:03:05] Speaker 00:
If you have a fillet of beef and half of it is minced and the other half is not, then do you have minced meat?

[00:03:13] Speaker 04:
Sure so if you have a mixture of things if we're going to say that's the rule and some of my product is under 1 16th and some of it is over an example you're asking about Then gri to the tariff schedule tells you what to do and you have mixtures of things right if we had a tariff provision for white rice and black rice And I had a bag of both black and white rice And it's mostly white

[00:03:34] Speaker 04:
I couldn't say it's white rice.

[00:03:36] Speaker 03:
Yeah, but that would be a situation in which you started out with two different things and mixed them together.

[00:03:40] Speaker 03:
That's not what happened here.

[00:03:42] Speaker 03:
What happened here was there was incomplete mincing, incomplete processing.

[00:03:49] Speaker 03:
It's not a question in which you start with two different things and mix them together.

[00:03:54] Speaker 04:
No, but the product in its imported condition is two different things.

[00:03:58] Speaker 04:
In this example, it's...

[00:04:00] Speaker 04:
Tuna that's under one-sixteenth of an inch.

[00:04:02] Speaker 00:
No, it's the same thing.

[00:04:04] Speaker 00:
It's the same product, only preserved differently.

[00:04:08] Speaker 04:
Okay, again, I would go back if I had rice or whatever that's of a certain grain size, under a certain grain size.

[00:04:13] Speaker 04:
I have a mixture of tuna that is of two different things.

[00:04:18] Speaker 00:
Well, but that's two different products.

[00:04:20] Speaker 00:
White rice and black rice and dark rice.

[00:04:23] Speaker 00:
Here, we're only talking about tuna.

[00:04:26] Speaker 00:
And I think the record is clear that there's chunks in the mixture.

[00:04:33] Speaker 00:
Sure.

[00:04:33] Speaker 00:
It's not uniform.

[00:04:34] Speaker 00:
The small pieces are not uniform.

[00:04:37] Speaker 04:
But the statute doesn't require, every time in the tariff, it's required to be all 100%, let's say, under 1 16th or 100% of something, not this mixture concept.

[00:04:46] Speaker 04:
The statute says wholly of.

[00:04:49] Speaker 04:
It says that the design of the tariff specifically contemplates that you can have something that's not wholly of.

[00:04:54] Speaker 04:
And that's what that GRI-2 is designed to accomplish.

[00:04:56] Speaker 03:
What about the fact that it's advertised as not being minced, it's advertised as being chunky.

[00:05:03] Speaker 03:
That seems to be a feature which the importer itself seems to be recognizing as significant in the advertising.

[00:05:12] Speaker 04:
Sure, Judge.

[00:05:13] Speaker 04:
So on that, and there is reference, and the government makes reference to that, that, hey, you call this chunk.

[00:05:18] Speaker 04:
And the reason for that is there are FDA standards.

[00:05:20] Speaker 04:
You're not allowed to call it anything other than there are five choices in the FDA regulation.

[00:05:25] Speaker 04:
Because it's a food product, we have to serve that master, not just customers.

[00:05:28] Speaker 04:
So we couldn't call it minced.

[00:05:31] Speaker 04:
This is no way.

[00:05:32] Speaker 00:
But you don't have to call it anything.

[00:05:34] Speaker 00:
I mean, you don't have to say minced or chunk.

[00:05:37] Speaker 00:
But even one of the packages alone, it says chunky on it.

[00:05:41] Speaker 00:
So apparently, it's advantageous to the manufacturer or the retailer to sell tuna that has small pieces, but also has the larger pieces, the chunky pieces.

[00:05:57] Speaker 04:
Again, I would go back.

[00:05:59] Speaker 04:
Minced doesn't mean the absence of chunk, right?

[00:06:01] Speaker 04:
Chunk is not the tariff term that's at issue here.

[00:06:04] Speaker 04:
It's minced.

[00:06:05] Speaker 04:
It's minced.

[00:06:07] Speaker 04:
Well, chunks are not minced, right?

[00:06:09] Speaker 04:
I'm sorry?

[00:06:10] Speaker 03:
Chunks are not minced.

[00:06:12] Speaker 04:
Well, it depends on what the definition of minced is.

[00:06:15] Speaker 03:
What definition of minced says that chunks are minced?

[00:06:19] Speaker 04:
Again, the Oxford English Dictionary, they all talk about cutting to very small pieces.

[00:06:23] Speaker 04:
I think at the end, someone has to resolve how small is small.

[00:06:28] Speaker 04:
To Chief Judge Morris' point earlier, if we had half the tuna, and I'd say, oh, this half is smaller than the whole tuna, I'm not going to say that's a minced piece of tuna.

[00:06:36] Speaker 04:
We said it here because a 1-inch piece of tuna or a 1-16-inch piece of tuna relative to an 80-pound tuna is a lot smaller.

[00:06:44] Speaker 04:
I mean, I think by far.

[00:06:48] Speaker 04:
So let me, if I can, turn to the second issue, because I just want to make sure we cover that as well.

[00:06:54] Speaker 04:
Is that OK?

[00:06:55] Speaker 04:
On the second issue, which is the in-oil question, the term and the statute.

[00:07:00] Speaker 00:
We don't get to this issue unless there's a question.

[00:07:04] Speaker 00:
We don't resolve mints, correct?

[00:07:06] Speaker 04:
Well, if you rule that the product is not minced, then we need to resolve, is it in oil or not?

[00:07:12] Speaker 04:
OK.

[00:07:13] Speaker 04:
In the event the court decides that the product is not minced, then we have to resolve

[00:07:17] Speaker 04:
Is it packed in oil?

[00:07:19] Speaker 00:
The case is, if we resolve it, it is minced.

[00:07:23] Speaker 04:
If we say it is minced, then you do not need to reach this issue.

[00:07:25] Speaker 04:
That is correct.

[00:07:26] Speaker 04:
Because then it would fall into 160420, which is the prepared meal provision.

[00:07:31] Speaker 04:
The oil, not oil issue is only under the not minced category.

[00:07:37] Speaker 04:
So turning to that issue, again, the phrase is not simply in oil.

[00:07:44] Speaker 04:
The statutory language says packed in oil.

[00:07:46] Speaker 04:
And we believe the judge below erred in drawing a line where the preparation phase ends and the packing phase begins.

[00:07:54] Speaker 03:
You agree that the fact that it's packed in mayo, if it were packed in mayo, that that's packed in oil, right?

[00:08:02] Speaker 03:
I'm sorry?

[00:08:03] Speaker 03:
The fact that it's mayonnaise rather than separated oil doesn't make a difference, right?

[00:08:10] Speaker 04:
Yeah, we are not making a distinction that, hey, this is mayonnaise and this has nothing to do with oil.

[00:08:16] Speaker 04:
The issue, though, is that when you make a tuna fish salad product, you take the fish, you cook it, mince it, cut it, chop it.

[00:08:23] Speaker 04:
Let's not go to that issue again.

[00:08:25] Speaker 04:
And then you mix it with the mayonnaise and then the vegetables.

[00:08:28] Speaker 04:
That's all the preparation of the fish.

[00:08:30] Speaker 04:
That is clearly preparation.

[00:08:32] Speaker 04:
We know that because the manufacturing instructions say that.

[00:08:34] Speaker 04:
That's in the appendix.

[00:08:36] Speaker 04:
We know that because the government admitted it.

[00:08:38] Speaker 04:
And we know that because the explanatory notes to the tariff schedule say that that's all preparation.

[00:08:43] Speaker 04:
So in this case, unlike the Del Monte case,

[00:08:45] Speaker 03:
That's the preparation.

[00:08:46] Speaker 03:
I would have thought that the preparation of the fish would end with the chopping.

[00:08:51] Speaker 04:
I'm sorry, Your Honor?

[00:08:52] Speaker 03:
I would think that the preparation of the fish ends with the chopping of the fish.

[00:08:57] Speaker 04:
But it doesn't, because the tariff scheduling expenditure notes say that when you mix fish with sauce, which is what we're doing here, the mayonnaise is a sauce, that is a preparation.

[00:09:08] Speaker 04:
And the record, the factual record, with all respect, Your Honor, with what?

[00:09:12] Speaker 04:
You would think that that's the end of the preparation is the cooking or the chopping.

[00:09:18] Speaker 04:
The factual record here says otherwise.

[00:09:19] Speaker 04:
In other words, the preparation instructions for the fish say that the mixing of it with the mayonnaise is part of the preparation.

[00:09:28] Speaker 04:
So it was the judge below who said, but in my opinion, preparation ends when you finish cooking the fish.

[00:09:34] Speaker 04:
Because he was thinking, I believe, of the Richter and the Stromar cases where fish was being cooked.

[00:09:38] Speaker 00:
What's your response to when you read HTS US Chapter 16, the additional note, US Note 1?

[00:09:48] Speaker 00:
And it says whether such oil or fat was introduced at the time of packing or prior to.

[00:09:54] Speaker 00:
So here, is it correct that the evidence on the record shows that the oil that we're talking about is introduced prior to packing?

[00:10:05] Speaker 00:
You argue it's done as a result of packing or it's part of the packing.

[00:10:10] Speaker 04:
Sorry, it's part of the preparation the adding of the mayonnaise is in the preparation phase not the packing phase It is true that the statute says or added prior there, too But it's prior to the packing of the fish so if you have a can and you put the Fish in first and then the oil that that was the case in Del Monte the Del Monte case It's packed in oil on the other end if I put

[00:10:35] Speaker 04:
The oil in and then the fish.

[00:10:37] Speaker 04:
In either order, you could be adding the oil prior to packing the fish, because the packing has to reference something in the note you're referring to, Your Honor, which is the fish.

[00:10:46] Speaker 04:
When are you packing the fish?

[00:10:48] Speaker 04:
And it doesn't matter if you put the oil in the can first, or the pouch, or the fish in first.

[00:10:52] Speaker 04:
That's the prior there to language.

[00:10:56] Speaker 03:
Why doesn't that cover this?

[00:10:57] Speaker 04:
Because we don't put anything.

[00:10:59] Speaker 04:
The only packing that happens here is after they make the tuna fish salad, it goes in a pouch.

[00:11:03] Speaker 04:
But there's no oil that they're putting in.

[00:11:05] Speaker 04:
Like in Del Monte, they cook the fish.

[00:11:07] Speaker 04:
This is very different from Del Monte.

[00:11:09] Speaker 04:
They cook the fish.

[00:11:10] Speaker 04:
They put the fish in the pouch.

[00:11:12] Speaker 04:
Then they poured a sauce in as they were packing it and closing the pouch.

[00:11:15] Speaker 04:
That's packed in oil.

[00:11:17] Speaker 04:
That's what that case said.

[00:11:18] Speaker 04:
That's not this case.

[00:11:20] Speaker 03:
Or prior there, too.

[00:11:22] Speaker 04:
But then what does the phrase packed mean?

[00:11:24] Speaker 04:
In other words, the prior there, too, if you read it that broadly, so as long as there's oil in that pouch, which we're calling the mayonnaise here, if you read it that broadly, you're in a viscerate dispatcher toward a pact.

[00:11:37] Speaker 04:
It's packed in oil.

[00:11:38] Speaker 04:
It's not in oil.

[00:11:39] Speaker 04:
That was an important change.

[00:11:40] Speaker 03:
It was after the preparation of the fish.

[00:11:43] Speaker 03:
And the fish is prepared once the chopping is completed.

[00:11:49] Speaker 03:
And then if you mix it with something else, then that is prior there to the addition of water.

[00:11:59] Speaker 04:
I guess, Your Honor, if the preparation phase ends, then I would agree with you.

[00:12:04] Speaker 04:
But I think the record is that that's not what happens.

[00:12:08] Speaker 03:
And if you look at page 56... So is it the preparation of the fish or the preparation of the product?

[00:12:17] Speaker 04:
It's the preparation of the tuna salad product.

[00:12:22] Speaker 03:
In other words, the instruct... What tells us that we're looking to the preparation of the product rather than the preparation of the fish?

[00:12:29] Speaker 04:
Fish preparation, I'm sorry, on our Joint Appendix, page 56.

[00:12:31] Speaker 04:
Step two, tuna fish.

[00:12:33] Speaker 04:
Fish preparation.

[00:12:35] Speaker 04:
And in those steps, it talks about mixing it with mayonnaise.

[00:12:38] Speaker 04:
Fish preparation.

[00:12:42] Speaker 04:
It's not, and the same thing on page 61.

[00:12:44] Speaker 04:
realized I'm reading from those pages are marked confidential in the Joint Appendix, but those sentences are not confidential.

[00:12:52] Speaker 03:
Well, this is your own thing, right?

[00:12:55] Speaker 04:
Yeah.

[00:12:55] Speaker 04:
But in other words, it would be completely arbitrary and ignoring the records, the factual records.

[00:13:01] Speaker 04:
Fish preparation says that.

[00:13:03] Speaker 04:
The requests for admission that were served on the government, the government admitted those facts.

[00:13:06] Speaker 04:
Those are the facts that the preparation includes mixing in the mayonnaise together with the chopped up cooked fish.

[00:13:12] Speaker 01:
Mr.. Ball you're into Do you want to save it yeah?

[00:13:17] Speaker 04:
I will just reserve whatever little time.

[00:13:18] Speaker 04:
I have left if that's okay.

[00:13:20] Speaker 01:
Thank you very much Council how do I say your name?

[00:13:29] Speaker 01:
Vanderweed okay, mr.. Vanderweed

[00:13:41] Speaker 02:
Thank you, Your Honors.

[00:13:41] Speaker 02:
May it please the Court.

[00:13:43] Speaker 02:
This Court should affirm the trial court's decision that starkest tuna salad products are pieces of tuna but not minced and in oil for two reasons.

[00:13:51] Speaker 02:
First of all, none of starkest tuna has been minced.

[00:13:54] Speaker 02:
For starkest to prevail, all of the tuna in the product must have been minced.

[00:13:58] Speaker 02:
The tariff says minced, which implies a process that was undertaken to mince the fish and the result of that process, which is minced fish.

[00:14:08] Speaker 01:
What if the package

[00:14:10] Speaker 01:
is 99.9% minced, but one little piece, which is not quite little enough, maybe a little bit bigger than 1 16th, was in there and that that's normal.

[00:14:22] Speaker 01:
It's, you know, the mincing process, they put it through this grinder and every once in a while, one or two little pieces get through that end up being slightly larger.

[00:14:30] Speaker 01:
Would you say that then that product is not minced?

[00:14:33] Speaker 02:
By the terms of the tariff, I would say it's not minced, Your Honor, because the tariff says minced.

[00:14:37] Speaker 01:
So 99.99999% of this package is tiny, tiny little pieces, way smaller than 1 16th.

[00:14:45] Speaker 01:
But if one tiny chunk that is bigger than 1 16th, but still really small, gets through, not minced.

[00:14:53] Speaker 02:
At that point, Your Honor, unless the court were to consider that de minimis at that point, that wouldn't affect just the construction of the term minced itself.

[00:15:01] Speaker 02:
But again, going back, we have to look at the actual process that was undertaken.

[00:15:06] Speaker 02:
Was there a mincing process that was undertaken?

[00:15:08] Speaker 01:
And what is the result of that process?

[00:15:11] Speaker 01:
Personally, I'm not persuaded by your argument that the mincing had to occur during the chopping phase as opposed to during the mixing phase.

[00:15:20] Speaker 01:
Because if the ultimate product at the end of the day

[00:15:23] Speaker 01:
was completely uniformly of a less than 1 16th character, whether it was done by the chopper or done by the fork, it wouldn't really matter to me.

[00:15:33] Speaker 01:
Mincing is cutting into very small pieces.

[00:15:36] Speaker 02:
Exactly.

[00:15:37] Speaker 02:
And with this product, the product is chopped into roughly inch-long pieces, inch-long or so.

[00:15:46] Speaker 02:
And then there's hand mixing.

[00:15:47] Speaker 02:
There's no further cutting or chopping that's done.

[00:15:49] Speaker 01:
Yes, but the hand mixing is what causes it.

[00:15:50] Speaker 01:
It's tuna, for God's sakes.

[00:15:52] Speaker 01:
The hand mixing causes the chopping up of it.

[00:15:56] Speaker 02:
But even under Stark's definition

[00:15:59] Speaker 02:
of what's to be minced to cut or chop into very small pieces.

[00:16:03] Speaker 02:
There's no cutting or chopping with a hand mixing.

[00:16:05] Speaker 02:
The hand mixing is to keep some structure.

[00:16:07] Speaker 01:
It is cutting and chopping.

[00:16:08] Speaker 01:
Cutting and chopping occurs by virtue of whether it's a fork or a spoon or whatever you're doing.

[00:16:12] Speaker 01:
Do you know that when I eat fish I don't use a knife?

[00:16:15] Speaker 01:
I only use a fork personally.

[00:16:16] Speaker 01:
Does that mean I'm not cutting my fish into pieces by virtue of the fact that I'm using a fork?

[00:16:21] Speaker 02:
I can say maybe you're flaking your fishes into pieces, but cutting and chopping.

[00:16:25] Speaker 01:
I don't generally think I'm flaking my fish when I eat it.

[00:16:27] Speaker 01:
I usually think I'm cutting it, but.

[00:16:31] Speaker 02:
I understand your point, Your Honor.

[00:16:32] Speaker 02:
But I'd like to think in this scenario that to mince, looking at the cooking and culinary sources,

[00:16:41] Speaker 02:
The concept of a mince is cutting.

[00:16:43] Speaker 02:
There's cutting that's actually taking place.

[00:16:45] Speaker 01:
No, actually, most of the definitions include a secondary definition, which is to separate into very small pieces.

[00:16:51] Speaker 01:
That doesn't even involve the word cutting at all.

[00:16:54] Speaker 01:
It doesn't have that kind of verb.

[00:16:56] Speaker 01:
It's talking about the resultant product.

[00:16:58] Speaker 01:
I mean, minced meat.

[00:17:00] Speaker 01:
Minced is sort of an adjective, right?

[00:17:02] Speaker 01:
It's not a verb.

[00:17:04] Speaker 02:
Well, minced meat.

[00:17:06] Speaker 02:
A product that is minced has been minced.

[00:17:08] Speaker 02:
It presumes that it has been minced.

[00:17:09] Speaker 02:
The entirety of the product has been minced.

[00:17:11] Speaker 01:
Yes, but the definitions of minced that were submitted on the record all included definitions that just says to separate into very small pieces.

[00:17:18] Speaker 02:
But at the same time, very small pieces can consume a whole different number of cuts.

[00:17:23] Speaker 02:
There's small dice, medium dice, julienne cuts, paste-on cuts, all these different cuts that could fall within that.

[00:17:29] Speaker 01:
But those definitions don't require it having been done with a chopping machine as opposed to a fork.

[00:17:35] Speaker 02:
Here, what are the facts that we know here?

[00:17:44] Speaker 00:
Was a fork used in the preparation of the fish?

[00:17:48] Speaker 02:
No, no fork was used.

[00:17:50] Speaker 02:
There was a chopping machine and the chopping machine set a target to cut or to chop the pieces of tuna into roughly inch long pieces or so.

[00:17:59] Speaker 02:
At that point,

[00:18:00] Speaker 02:
The fish was hand-mixed with all the other ingredients.

[00:18:02] Speaker 02:
How was it hand-mixed?

[00:18:04] Speaker 02:
It was hand-mixed by hands.

[00:18:06] Speaker 01:
Like a person's hand?

[00:18:07] Speaker 02:
Yeah, a person's hands.

[00:18:09] Speaker 02:
And an operator's hands.

[00:18:11] Speaker 01:
So you're thinking a person isn't capable of creating minced meat?

[00:18:17] Speaker 02:
I think in order to have a minced product... With fish.

[00:18:20] Speaker 01:
This is fish.

[00:18:21] Speaker 01:
And Congress knew, I mean with this tariff, they were talking about fish, right?

[00:18:26] Speaker 01:
Your position would be stronger, it seems, if they were talking about minced beef.

[00:18:30] Speaker 01:
But when Congress knew it was talking about minced fish, everybody knows fish can be broken apart very easily with any kind of tool.

[00:18:39] Speaker 01:
So it's not like they were specifying a particular tool that had to be used to cause the breaking.

[00:18:45] Speaker 01:
I can make minced meat with my hands.

[00:18:47] Speaker 01:
I am positive I can.

[00:18:48] Speaker 01:
Whatever your definition of minced meat is, I am positive I can make it with my hands, with fish.

[00:18:52] Speaker 02:
OK.

[00:18:53] Speaker 02:
Understood, Your Honor.

[00:18:54] Speaker 02:
But let's still look at it.

[00:18:55] Speaker 03:
What difference does it make here?

[00:18:57] Speaker 03:
Even if we look at the final product, it's not in very small 167-inch pieces.

[00:19:05] Speaker 02:
That was the point I was just about to make, Your Honor.

[00:19:07] Speaker 02:
Regardless of exactly the method of cutting, chopping, using a fork, hand, whatever you have, at the end of the day, you don't have

[00:19:16] Speaker 02:
a uniform 1-16th of an inch pieces.

[00:19:21] Speaker 01:
Well, that uniform thing is bothering me again.

[00:19:23] Speaker 01:
Let's go back to it.

[00:19:24] Speaker 01:
When you're talking about the chunk light tuna, 82% of the pieces are so small as to be unmeasurable.

[00:19:31] Speaker 01:
So they definitely meet the less than 1-16th.

[00:19:34] Speaker 01:
So you're talking about the vast majority of what's in that product that is being conveyed.

[00:19:40] Speaker 01:
I mean, 82% of it absolutely meets the definition.

[00:19:44] Speaker 01:
18% of it is larger than 1 16th.

[00:19:48] Speaker 01:
Why isn't that some sort of fact question about whether or not the product is minced?

[00:19:55] Speaker 02:
Well, the 82% that was with one variety, it was less in another variety.

[00:19:59] Speaker 01:
OK, but let's just stick with my example.

[00:20:00] Speaker 02:
OK, let's stay with that example.

[00:20:02] Speaker 02:
That's in surface area that we're talking about.

[00:20:04] Speaker 02:
That's just in two dimensions.

[00:20:06] Speaker 02:
And again, it wasn't that the rest of the fish was unmeasurable.

[00:20:09] Speaker 02:
It means that that was just the amount of fish that couldn't be separated from all the other ingredients that the lab can actually take that piece of tuna and measure it.

[00:20:18] Speaker 02:
What's provided for here, and how this fish is described as, are pieces of tuna.

[00:20:23] Speaker 02:
That's what the tariff provides, pieces of tuna, but not minced.

[00:20:26] Speaker 02:
And we submit that there was no, even though we seem to disagree with the mincing process, you still don't have entirely minced fish at the end of the day.

[00:20:34] Speaker 01:
But that's going back to your argument that 82% of it, if 82% of it is minced, it's not minced.

[00:20:43] Speaker 02:
Yes, that's correct.

[00:20:45] Speaker 01:
Just to make sure, your argument requires 100% of what's in the package to be minced in order for this to qualify as minced.

[00:20:54] Speaker 02:
So that the tariff word minced actually has some meaning.

[00:20:57] Speaker 02:
Otherwise, if it hasn't all been minced, then there's pieces of fish, which is what the tariff provides for.

[00:21:02] Speaker 02:
Pieces of fish, but not minced.

[00:21:04] Speaker 02:
And so all of it needs to be minced in order.

[00:21:07] Speaker 01:
So 100%, 99.999% of 100-pound bag of fish that is minced with one chunk that is not minced, i.e.

[00:21:17] Speaker 01:
not less than 1 16th, according to you, that is not minced fish.

[00:21:21] Speaker 02:
Yes, Your Honor.

[00:21:22] Speaker 00:
Well, counsel, you say that, and I mean, I guess we're all experienced somewhat to some degree in tuna fish that we eat and everything.

[00:21:34] Speaker 00:
But Customs did a scientific study here, didn't they?

[00:21:37] Speaker 00:
I mean, Customs, their decision was based on an investigation that they undertook in actually measuring these pieces out.

[00:21:48] Speaker 00:
This is what was given to them was not something that was 99% minced.

[00:21:54] Speaker 00:
It was up to 80% in small pieces and the other in bigger pieces, right?

[00:22:01] Speaker 00:
82%.

[00:22:03] Speaker 00:
That's right.

[00:22:03] Speaker 02:
For one variety, it was 82%.

[00:22:05] Speaker 02:
For another variety, it was less than that.

[00:22:07] Speaker 02:
I believe it was 58%.

[00:22:10] Speaker 01:
But you reject the idea that we should look at 2 little i, the part with the essential character.

[00:22:16] Speaker 01:
In order for you to prevail, you believe it has to be 100%, correct?

[00:22:22] Speaker 02:
Essential character is GRI 3b, a composite grid.

[00:22:27] Speaker 02:
Here we have GRI 1.

[00:22:28] Speaker 02:
GRI 1 is just the terms of the heading and any controlling notes.

[00:22:32] Speaker 02:
And here are the terms of GRI 1.

[00:22:33] Speaker 02:
is enough to resolve this issue.

[00:22:37] Speaker 02:
We do not submit that the product can be both minced and not minced.

[00:22:41] Speaker 02:
It's either minced or it's not minced, because the tariff term says minced, which implies that the entirety was minced.

[00:22:47] Speaker 02:
That's the government's position.

[00:22:49] Speaker 01:
What about Mr. Rohl's position that in many instances, the tariff uses the words wholly of, which

[00:22:59] Speaker 01:
implies quite clearly that that or states quite clearly that those products need to be entirely of that variety so when they tariff doesn't use the terms wholly of that would suggest that this could be a mixture of sorts like that like he is arguing but at the same time we believe that the term minced implies a past tense verb that was has been completed that an action has been completed

[00:23:24] Speaker 02:
The tariff doesn't say of a mince size or partially minced.

[00:23:27] Speaker 02:
It says minced, which implies that all of the tuna has been minced.

[00:23:30] Speaker 01:
But it doesn't say wholly of minced.

[00:23:31] Speaker 02:
It's true.

[00:23:32] Speaker 02:
It doesn't.

[00:23:32] Speaker 02:
But I don't think it needs to, because the term minced implies that the action has been completed.

[00:23:36] Speaker 01:
But see, again, now you're returning to the definition that requires 100% absolute uniformity.

[00:23:42] Speaker 02:
Well, I think it's also...

[00:23:43] Speaker 02:
If there was an indication that Stark has set out in its process memorandum to mince its fish and that it wanted the results of its fish to be of a mince proportions, and it accomplished that, and that's what it set out to do, but one of those little pieces was bigger than a mince,

[00:24:01] Speaker 02:
Well, then maybe that's a different story, because at least we knew then that Starkist was undertaking a minting process.

[00:24:06] Speaker 03:
So there's got to be some de minimis exception, right?

[00:24:10] Speaker 02:
I can see that.

[00:24:12] Speaker 03:
If you have 100 pounds of fish and there's one little piece that's more than a sixteenth of an inch.

[00:24:16] Speaker 02:
And I acknowledge that.

[00:24:18] Speaker 02:
I want to give respect to the term mince, that it implies that all of it has been minced, but I do understand that there could be a de minimis aspect of it, especially if Starkist were to say,

[00:24:29] Speaker 02:
in its process memorandum, we want to mince this fish.

[00:24:33] Speaker 02:
We're going to mince this fish.

[00:24:34] Speaker 02:
We're going to set the chopper to these standards.

[00:24:38] Speaker 02:
And we're going to get it to 1 16th of an inch.

[00:24:41] Speaker 02:
And then they actually successfully did that.

[00:24:43] Speaker 02:
Here, even if there's no indication that they set out to mince the product, there's no resulting complete mince product, or even diminished the mince, because there's pieces.

[00:24:52] Speaker 01:
But counsel, do you think intent is relevant?

[00:24:54] Speaker 01:
This is an HTS US term, minced fish.

[00:24:57] Speaker 01:
Whether I intended my fish to be chunky or intended it to be minced seems to me irrelevant to whether what you import meets the definition.

[00:25:05] Speaker 02:
And at the end of the day.

[00:25:06] Speaker 01:
Is that correct or not?

[00:25:07] Speaker 02:
No, that's correct.

[00:25:10] Speaker 02:
There needs to be a concept of mincing.

[00:25:12] Speaker 01:
Likewise, how I advertise it seems equally irrelevant to whether what I'm importing does or does not fall within the definition.

[00:25:19] Speaker 01:
Is that correct?

[00:25:20] Speaker 02:
I mean, it's true.

[00:25:21] Speaker 02:
It's true.

[00:25:22] Speaker 02:
It's indicative of the nature of the product, though, just as the process memorandum

[00:25:27] Speaker 02:
What Stark's intention is, they want a chunky product.

[00:25:30] Speaker 02:
You have pieces that are way bigger than the size of a mince in both of these products.

[00:25:37] Speaker 01:
But again, what they wanted or what they intended is not relevant to what they actually imported, correct?

[00:25:42] Speaker 02:
Well, it's relevant.

[00:25:43] Speaker 01:
The decision of whether what they actually imported falls within one of the HDS US categories.

[00:25:48] Speaker 02:
But it's relevant to the tariff term minced, to the extent that they set out to mince a product and that the product was actually minced.

[00:25:54] Speaker 01:
You believe that whether or not they intended to mince a product is relevant to the definition of whether a product is in fact minced?

[00:26:01] Speaker 02:
I think it's relevant to whether

[00:26:03] Speaker 02:
What what does mince mean again?

[00:26:06] Speaker 02:
It goes back to what does mince mean and mince has to be something that there's a result Yes, but what what?

[00:26:12] Speaker 02:
Created that result and I'm not saying that it's just that we have to look at the intent I'm just saying that that's indicative of whether the product here was actually minced.

[00:26:21] Speaker 03:
It's a factual Inquiry cases suggesting that how a product was advertised was a relevant consideration Your honor no

[00:26:31] Speaker 02:
Not with respect to at least this tariff provision with MIST.

[00:26:40] Speaker 00:
I'm trying to... If we back up a little bit and not think in terms of intent, but perhaps the results, we're talking about preparation.

[00:26:50] Speaker 00:
What does the evidence show as to how this fish was prepared and what's the result of that preparation?

[00:26:57] Speaker 02:
Exactly, exactly.

[00:26:58] Speaker 02:
And how the fish was prepared was to chop into roughly inch long pieces or so, hand mix, and then what is the result of that process?

[00:27:05] Speaker 03:
How can it not be relevant how they characterize the result in advertising for the product?

[00:27:11] Speaker 02:
No, I'm sorry if I misspoke, Your Honor.

[00:27:13] Speaker 02:
It is relevant.

[00:27:15] Speaker 02:
It is relevant.

[00:27:15] Speaker 02:
They want a chunky product.

[00:27:17] Speaker 02:
They don't want a main product.

[00:27:18] Speaker 03:
It's not a question of what they want.

[00:27:19] Speaker 03:
It's a question of how they characterized it.

[00:27:22] Speaker 02:
Yes.

[00:27:23] Speaker 02:
How Stark has characterized their product and what they intended it to be.

[00:27:29] Speaker 02:
Your Honors, can I quickly move on to I have only a minute left to address the in-oil argument.

[00:27:34] Speaker 02:
Unless, so.

[00:27:36] Speaker 02:
There's a chief here.

[00:27:37] Speaker 00:
Yes.

[00:27:39] Speaker 02:
Okay.

[00:27:39] Speaker 02:
We also submit that the Starkis tuna salad pouches are packed in oil because the medium containing the tuna pieces is an oil and fat-based mayonnaise.

[00:27:48] Speaker 02:
And the container in which the tuna salad is packed in, the oil can be introduced per the note, whether at the time of packing or as packaging as Starkis seems to limit it to or prior thereto.

[00:28:02] Speaker 02:
Even if it was just limited to the time of packaging, the tuna salad, when it's placed in the pouches, contains an oil-based mayo.

[00:28:11] Speaker 02:
At that time that that tuna salad is funneled into the pouches, it's being packed in oil or fat.

[00:28:17] Speaker 02:
This is not some sort of residual oil or fat that was unintended.

[00:28:22] Speaker 02:
This is something that StarKiss added to its pouches purposely to serve as the medium for their product.

[00:28:29] Speaker 01:
Which dictionary definitions do you believe require uniformity, i.e.

[00:28:36] Speaker 01:
none or only a de minimis amount of larger product?

[00:28:42] Speaker 02:
We're looking at not dictionary definitions for for minced we're looking at the different appendix 227 228 aren't these dictionaries there are dictionary definitions We're also dictionary definitions are getting to you know cut or chop into very small pieces And that was the definition that the trial court reference in that star kiss is adhering to We've also brought in different other culinary sources such as the elements of cooking life hacker the spruce eat

[00:29:12] Speaker 02:
which these are describing as to cut her very small pieces, the smallest possible pieces, and we're looking at the... Doesn't one of your definitions on 220 sinks actually says, mince, to cut into very small pieces where uniformity or shape is not important?

[00:29:28] Speaker 02:
It's true.

[00:29:29] Speaker 02:
There's not a uniform sort of concept within the industry.

[00:29:34] Speaker 02:
There are different definitions.

[00:29:35] Speaker 01:
No, not uniform within the industry, where uniformity or shape is not important.

[00:29:40] Speaker 01:
That's suggesting the uniformity of the size of the very small pieces.

[00:29:43] Speaker 02:
But then there's also the elements of cooking and the culinary cook that specifically mention uniformity, as that's a part of mince.

[00:29:49] Speaker 01:
Do you believe that the district court concluded it had to be uniform?

[00:29:55] Speaker 02:
I believe that that was just one quality that it was looking at, of whether the product was minced.

[00:29:59] Speaker 01:
But did it conclude that it had to be uniform or it wasn't minced?

[00:30:03] Speaker 02:
No, not directly.

[00:30:04] Speaker 02:
Because we're also looking at just, when we're getting down to that small, 1 16th by 1 16th by 1 16th, it's going to inherently, it can't be exactly that.

[00:30:13] Speaker 02:
It's going to be approximate.

[00:30:15] Speaker 01:
Did the district court conclude that all of the pieces had to be less than 1 16th in order to be minced?

[00:30:24] Speaker 02:
It wasn't expressly stated in those terms.

[00:30:29] Speaker 02:
The district court was looking at what is, it was looking more as the essential character of the product.

[00:30:34] Speaker 02:
That's the analysis that it took.

[00:30:38] Speaker 02:
And it found the essential character to be pieces of tuna, but not minced pieces of tuna.

[00:30:42] Speaker 01:
If you concede that there could be de minimis amounts of pieces that wouldn't qualify under whatever the definition of minced is in a product that is imported

[00:30:53] Speaker 01:
and yet that product could still be considered minced.

[00:30:55] Speaker 01:
What is the line for de minimis that the government would suggest?

[00:30:59] Speaker 01:
99%, 80%, what would be the line?

[00:31:04] Speaker 02:
I'd say 99%.

[00:31:05] Speaker 01:
So it has to be 99% minced if more than 1% of the product isn't minced, it's not minced?

[00:31:11] Speaker 02:
Yes.

[00:31:14] Speaker 02:
Your Honors, do you have any further questions?

[00:31:16] Speaker 00:
Well, I mean, you're just guessing, right?

[00:31:19] Speaker 00:
You don't have a basis to make that statement.

[00:31:23] Speaker 02:
Our position is that all of the tuna has to be minced.

[00:31:26] Speaker 02:
That's our position.

[00:31:28] Speaker 02:
100%.

[00:31:28] Speaker 01:
But your position is 100%.

[00:31:30] Speaker 02:
That's our position.

[00:31:31] Speaker 02:
It's 100%.

[00:31:32] Speaker 02:
But recognizing that if there is a de minimis exception that this court wants to adhere to, we would submit that that would be as close to 100% as possible.

[00:31:40] Speaker 02:
It would be de minimis, that it would be so insignificant that it would be as close to 100% as possible.

[00:31:49] Speaker 02:
Thank you, Your Honors.

[00:31:50] Speaker 02:
Do you have any further questions?

[00:31:52] Speaker ?:
Thanks.

[00:31:53] Speaker 01:
Mr. Roll, you have some rebuttal time.

[00:32:06] Speaker 00:
Mr. Roll, do you have experience in the kitchen?

[00:32:10] Speaker 04:
Yes, my wife would probably tell me not very good experience, but yes.

[00:32:14] Speaker 00:
So have I. I love to cook.

[00:32:16] Speaker 00:
If my wife tells me, I want you to mince this onion,

[00:32:20] Speaker 00:
and I chop it up into these little bitty pieces and 20% I leave it in bigger pieces.

[00:32:28] Speaker 00:
What's the result?

[00:32:29] Speaker 00:
Is it minced onion?

[00:32:30] Speaker 04:
I guess you'd have to ask your wife.

[00:32:32] Speaker 04:
My wife would probably tell me it's close enough.

[00:32:37] Speaker 04:
But on this issue of the size and this wholly of does it have to be 100%, it's to me bears like the facts of this case are important as opposed to the hypotheticals are important to test the limits, but the facts here are

[00:32:49] Speaker 04:
When you look at the lab report, it is kind of close to this line of questioning from Chief Judge Moore about if it's all under 116 or it's all these little pieces, but there are some other ones that are bigger, which to the extent you're going to say that that defeats it from becoming minced.

[00:33:05] Speaker 04:
Look at the lab report, which is on page 433 and 434 of the Joint Appendix.

[00:33:13] Speaker 04:
When you really break this down in the numbers from the lab, not what I'm saying, not what opposing counsel is saying, but the numbers from the lab,

[00:33:19] Speaker 04:
First of all, 1 16th of an inch is 0.4 centimeters, just for the rough conversion.

[00:33:26] Speaker 04:
When you look at the chart there of how many pieces of what they can measure, and I know it's a little bit small and hard to read, but you look in the column which says area, centimeters squared, and you go down the list.

[00:33:36] Speaker 00:
Remember, this is only what?

[00:33:37] Speaker 00:
What page number are you at?

[00:33:38] Speaker 04:
433 and 434.

[00:33:38] Speaker 04:
OK.

[00:33:39] Speaker 04:
And there are two pages because one for one version, one for the other version of the tuna.

[00:33:45] Speaker 04:
When you look at the numbers there, and again, this is what they can measure.

[00:33:48] Speaker 04:
Half the product they couldn't measure.

[00:33:50] Speaker 04:
So right away, 50% of the product wasn't even measurable.

[00:33:52] Speaker 04:
It was that small.

[00:33:53] Speaker 04:
So from what was left, they gave these charts in the upper right-hand corner where they break down the size and what the size range was.

[00:34:01] Speaker 04:
But if you add up under area centimeter squared, how many of those are 0.4 or below?

[00:34:05] Speaker 04:
It's the majority of them.

[00:34:07] Speaker 04:
That plus the half of the product that they couldn't even measure.

[00:34:10] Speaker 04:
This is the closer to the example the Chief Judge Moore is giving, where most of the product

[00:34:14] Speaker 04:
So small it could have measured, or it's under 0.4 centimeters squared, it does meet that standard.

[00:34:19] Speaker 01:
Well, I mean, when you say more than half yet, but it's 82, am I right, 82% of the chunk light and 58% of the albacore tuna meet the definition of minced if the definition is smaller than 1 16th.

[00:34:34] Speaker 01:
Are those the facts that were found by the lab report?

[00:34:36] Speaker 01:
That's what I understood.

[00:34:37] Speaker 04:
Correct, Your Honor.

[00:34:39] Speaker 04:
Those are the facts.

[00:34:42] Speaker 03:
So you're saying that even something that's only 58% minced is still minced?

[00:34:49] Speaker 04:
It's a majority of it minced, yes.

[00:34:51] Speaker 03:
It's just a majority question?

[00:34:54] Speaker 04:
Yes, because it's essential character.

[00:34:56] Speaker 04:
I mean, you have to look at what predominates.

[00:34:58] Speaker 01:
It can't be majority.

[00:34:59] Speaker 01:
And the reason it can't is suppose that one piece was this big, and then 10 pieces were really tiny, right?

[00:35:07] Speaker 01:
If we were counting it by pieces, the majority would be,

[00:35:11] Speaker 01:
minced under that definition, even though when somebody would look at that product upon importation, they would likely just be focusing on the giant piece.

[00:35:18] Speaker 01:
Essential character has got to be a fact question that's decided by somebody at some point.

[00:35:22] Speaker 01:
Because in some instances, maybe it's based on the number of pieces when they're all very close.

[00:35:27] Speaker 01:
In other, maybe it's based on volume or weight or whatever.

[00:35:30] Speaker 01:
That has to be a fact question.

[00:35:31] Speaker 01:
It can't be a one-size-fits-all rule.

[00:35:34] Speaker 04:
It's definitely not a one-size-fits-all, because in that example, I would agree with you.

[00:35:37] Speaker 04:
If you have one big piece and then lots of little ones,

[00:35:39] Speaker 04:
probably the bigger piece is going to be the more important piece.

[00:35:41] Speaker 01:
That's going to be the essential character of the product.

[00:35:44] Speaker 01:
But those are not our facts.

[00:35:45] Speaker 01:
But yes.

[00:35:46] Speaker 04:
Just real quick, I know I'm out of time here.

[00:35:48] Speaker 04:
This 1 16th of an inch, because you asked the question earlier, where did that come from?

[00:35:51] Speaker 04:
I mean, the only source of that, yes, the court below made reference to it as our position, which it's never been.

[00:35:58] Speaker 04:
And yes, customs took that position.

[00:36:00] Speaker 04:
When you look at the definitions in the appendix that were cited, again, the court can obviously make the, it is your job to make the decision.

[00:36:07] Speaker 04:
But the source of that is,

[00:36:09] Speaker 04:
skillet.lifehacker.com As it doesn't seem a very authoritative source, and why isn't it 1 17th of an inch or 1 15th of an inch?

[00:36:17] Speaker 04:
I mean, it's that one source to me We just sort of went along with that and said the government if that's your criteria We still meet it, but we don't believe there should be a 1 16th of an inch criteria but if that is going to be some adoption then Thank you very much.

[00:36:34] Speaker 01:
We thank both counsel this case is taken under submission and