[00:00:00] Speaker 02:
The next case is Nature's Touch frozen foods versus the United States.

[00:00:06] Speaker 01:
Mr. Peterson, when you're ready.

[00:00:08] Speaker 01:
Thank you.

[00:00:10] Speaker 01:
The last time I appeared before, Your Honor, I was given the accommodation of speaking from council table.

[00:00:15] Speaker 01:
But I'm going to try it here today.

[00:00:16] Speaker 01:
I think we can do it.

[00:00:17] Speaker 01:
Let's find out together.

[00:00:19] Speaker 01:
Well, feel free if you need to sit down.

[00:00:21] Speaker 01:
Well, I'm told if I get through this, it counts as today's physical therapy.

[00:00:24] Speaker 01:
Great.

[00:00:25] Speaker 01:
Well, I'm glad you're feeling better.

[00:00:27] Speaker 01:
Thank you.

[00:00:28] Speaker 01:
This is a case about the tariff classification of frozen fruit mixtures.

[00:00:32] Speaker 01:
They're imported in retail bags.

[00:00:34] Speaker 01:
You can buy them at your local grocery.

[00:00:37] Speaker 01:
Our client, Nature's Touch, puts these together through a process in British Columbia.

[00:00:43] Speaker 01:
Now, customs and liquidation classify these mixtures using general rules 3B and C of the tariff heading.

[00:00:52] Speaker 01:
They said there's no particular tariff heading that covers these.

[00:00:56] Speaker 01:
So we're not going to classify them under GLI-1.

[00:00:58] Speaker 01:
We're going to resort to 3B and 3C.

[00:01:03] Speaker 01:
And so the products were classified under various provisions based on that single fruit ingredient which was deemed to impart the essential character.

[00:01:14] Speaker 01:
Our protest suggested that no.

[00:01:17] Speaker 01:
There is a specific classification that will allow you to classify these things under General Rule of Interpretation 1, and that was the provision in Heading 2106-9098 for other food preparations not especially provided for.

[00:01:33] Speaker 01:
Now, the Trade Court went in a totally different direction and came up with a decision that seems to be unprecedented in 245 years of American customs law.

[00:01:46] Speaker 01:
What the Trade Court said

[00:01:48] Speaker 01:
was that the basket provision for other frozen fruits and heading 0811.90.80, which would not cover most of these fruits if imported individually, does cover a mixture of goods which would not otherwise be classifiable in that heading.

[00:02:11] Speaker 01:
Now that's just unprecedented.

[00:02:13] Speaker 02:
We've never found... Unprecedented, of course, doesn't necessarily mean wrong.

[00:02:18] Speaker 02:
Help me with that.

[00:02:18] Speaker 02:
The logic seemed to be that fruit has an accepted meaning, broad enough to include mixtures of fruit.

[00:02:27] Speaker 02:
And when we use fruit in common parlance as bowl of fruit or cup of fruit, we could mean multiple types of fruit.

[00:02:36] Speaker 02:
What's wrong with that reasoning?

[00:02:38] Speaker 01:
Well, the reasoning is that the lower court treated the word fruit as an al-nominate provision, an al-nominate classification.

[00:02:46] Speaker 01:
It is not.

[00:02:47] Speaker 01:
It is a classification by general description.

[00:02:50] Speaker 01:
Well, either way, what's wrong with my general description?

[00:02:53] Speaker 02:
My general description of fruit says there's a barrel of fruit over there.

[00:02:57] Speaker 02:
It's not necessarily limited to one type of fruit, is it?

[00:03:00] Speaker 01:
Well, the problem is that the lower court took the general description language in the four-digit

[00:03:08] Speaker 01:
and let it into the more specific ANOMINATE provisions that appear at the 6 and 10-digit headings.

[00:03:15] Speaker 01:
That's erroneous.

[00:03:16] Speaker 01:
Now, after the case... Hold on.

[00:03:19] Speaker 02:
I think the law is pretty clear.

[00:03:21] Speaker 02:
You start with the heading level before you even think about subheadings.

[00:03:24] Speaker 02:
Isn't that correct?

[00:03:25] Speaker 01:
You do.

[00:03:26] Speaker 01:
But the question is, do we have ANOMINATE provisions that cover that?

[00:03:32] Speaker 01:
If you just said the word FRUIT in the 4-digit heading covers all FRUIT,

[00:03:38] Speaker 01:
There wouldn't be any need for six or eight-digit headings, and the drafters would not have crafted them.

[00:03:45] Speaker 01:
Now, in our brief, we go into a rule that says, unless you have a commercial designation at issue, which is not the case here, an AOD provision will always prevail over words of general description.

[00:04:01] Speaker 02:
Now, we used the... Can I just get you back to your statement that this is unprecedented to put mixtures of frozen fruits in this other, other category?

[00:04:13] Speaker 02:
Because I don't think it is.

[00:04:15] Speaker 01:
We found no situation where that ever happened.

[00:04:18] Speaker 02:
Maybe I'm just misreading these rulings, but in a letter to you dated February 7, 2020,

[00:04:28] Speaker 02:
they discuss this very specific issue and they tell you

[00:04:33] Speaker 02:
And this may be another case, but it's so lettered directly to you with this importer talking about this food preparation issue versus 811 and says it doesn't belong in food preparation.

[00:04:47] Speaker 02:
It belongs in 811.

[00:04:48] Speaker 02:
It cites four different rulings that, as far as I can tell, classify fruit mixtures as other other.

[00:04:56] Speaker 01:
Part of the problem with that, Your Honor, is that customs rely in part

[00:05:00] Speaker 01:
on a 10-digit provision in that subheading that talked about fruit mixtures.

[00:05:05] Speaker 01:
It's not part of the tariff.

[00:05:08] Speaker 02:
I don't understand that answer, but let me say I'm practicing this by what Customs did in this case seems out of pattern with what they've done in these other cases, which getting to the GRI-3, they didn't do in these other cases.

[00:05:26] Speaker 02:
But for instance,

[00:05:28] Speaker 02:
A tariff ruling from September 8, 2003 that they cited in this letter to you says the applicable setting helps for mixtures of frozen and the mixture, well, so that's a different one.

[00:05:44] Speaker 02:
Frozen fruit medleys contains blackberries, strawberries, and peaches.

[00:05:51] Speaker 02:
That one

[00:05:52] Speaker 02:
is 811-90-80-80, and it says we'll be classified as other other.

[00:05:59] Speaker 02:
That's what the trade court is saying here, right?

[00:06:02] Speaker 01:
No, no.

[00:06:03] Speaker 01:
Those are customs rulings.

[00:06:04] Speaker 01:
This is, to my knowledge, the first time the trade court's accepted that law.

[00:06:07] Speaker 02:
But this isn't unprecedented for customs review.

[00:06:10] Speaker 02:
And in fact, it's a pattern.

[00:06:11] Speaker 02:
I have four of these rulings sitting here before me that were cited to you in

[00:06:18] Speaker 02:
This February 7, 2020 letter, which I'm sure you're familiar with, where customs routinely classifies frozen fruit mixtures as other-other.

[00:06:28] Speaker 01:
Right.

[00:06:28] Speaker 01:
Now, they didn't classify them in this case that way.

[00:06:31] Speaker 01:
They have tried to class—they have since the 2020 ruling classified them that way.

[00:06:38] Speaker 01:
And, you know, this court's ruling, but in this case... You're saying this ruling predates all of these letters?

[00:06:44] Speaker 01:
Yes.

[00:06:44] Speaker 02:
Okay.

[00:06:45] Speaker 02:
So, okay, I get that.

[00:06:46] Speaker 02:
But at least now that... So they're basically following what?

[00:06:50] Speaker 02:
Right.

[00:06:51] Speaker 02:
What David told them to do.

[00:06:52] Speaker 01:
Before the Trade Court, after we had had a little argument, and obviously the briefing had come in, the judge asked the parties to go to a Zoom conference and raised this concept.

[00:07:04] Speaker 01:
Could mixed views go into 081198?

[00:07:07] Speaker 01:
The plaintiff submitted a brief saying, no, that's not correct.

[00:07:11] Speaker 01:
That's not the way the mixture's provision work.

[00:07:14] Speaker 01:
The government submitted a brief saying the same thing.

[00:07:17] Speaker 01:
Okay.

[00:07:18] Speaker 01:
Both sides agreed, at least at the trade court level.

[00:07:21] Speaker 02:
that that was not a proper interpretation of the tariff.

[00:07:23] Speaker 02:
So your position and the government's position was that other other was reserved for other single frozen food not otherwise identified and... That's correct and that is what we think is the correct reading

[00:07:38] Speaker 02:
of the OA 119080 provision.

[00:07:40] Speaker 02:
Okay, so let me ask you this.

[00:07:42] Speaker 02:
I know you want to push this food preparation issue.

[00:07:44] Speaker 02:
For purposes of these questions, let's just assume I disagree with you that you haven't done enough transformation of these to make it a food preparation.

[00:07:54] Speaker 02:
You've preserved your argument on that.

[00:07:55] Speaker 02:
I'm not interested in hearing from that at this point.

[00:07:59] Speaker 02:
You can move on to it after I'm asking my question.

[00:08:02] Speaker 02:
If that's the case and that food preparation classification is off the table and they belong at 811, how do they belong in 811?

[00:08:09] Speaker 02:
Do they belong in the other other, the way Customs is doing it now?

[00:08:13] Speaker 02:
No.

[00:08:14] Speaker 02:
Or do they belong under GRI 3, which is what Customs did the first time?

[00:08:19] Speaker 01:
They don't belong in an easy place.

[00:08:21] Speaker 01:
They belong under heading 2106.

[00:08:22] Speaker 01:
Mr. Peterson, you have to respond to my hypothetical.

[00:08:26] Speaker 02:
I know you're pushing that argument.

[00:08:28] Speaker 01:
Okay.

[00:08:28] Speaker 02:
This is wrong, and they can't go in food preparation.

[00:08:31] Speaker 02:
They do go in 811.

[00:08:33] Speaker 01:
How do they go in 811?

[00:08:36] Speaker 01:
It would be by a construction that says, strangely enough, that a provision that excludes most of the names fetched about fruits

[00:08:43] Speaker 01:
from its classification covers some of all of them.

[00:08:46] Speaker 02:
I think the question is, which subheading under 811 would they go under?

[00:08:50] Speaker 02:
I think they would not.

[00:08:52] Speaker 02:
If you discount... I'm giving you two choices.

[00:08:54] Speaker 02:
The choice is either other other, as the Trade Court found and Customs is doing now, or GRI 3, as Customs did initially.

[00:09:03] Speaker 02:
Which one of those do you think is the more correct?

[00:09:05] Speaker 01:
GRI 3.

[00:09:06] Speaker 01:
GRI 3, unquestionably.

[00:09:09] Speaker 01:
Okay.

[00:09:10] Speaker 01:
Why?

[00:09:11] Speaker 01:
Huh?

[00:09:11] Speaker 01:
And why?

[00:09:12] Speaker 01:
Well, because if you look at the tariff, the drafters did create a number of GRI-1 provisions covering things like mixtures of vegetables, mixtures of fruit.

[00:09:22] Speaker 01:
Okay, they spared classifiers from going through the contents of the salad to say, well, what's the essential character component?

[00:09:31] Speaker 01:
They didn't do that with frozen fruits.

[00:09:33] Speaker 01:
We don't know why.

[00:09:34] Speaker 01:
There's no GRI-1 provision talking about mixtures of frozen fruits.

[00:09:40] Speaker 01:
So, what do you do?

[00:09:42] Speaker 01:
Now, in the absence of that, customs went and said, we're going to use GLI-3.

[00:09:47] Speaker 01:
All right.

[00:09:49] Speaker 01:
But we said, wait a minute.

[00:09:52] Speaker 01:
This court's rulings say that if you can classify something under GLI-1, you must classify it under GLI-1, and that the remaining notes, including 3A and 3B, are inoperative, to quote the court's auto products ruling.

[00:10:07] Speaker 01:
So this resolves into the question, then, which, as you pointed out, we've preserved, is whether we have a prepared or preserved food product.

[00:10:16] Speaker 02:
I guess what I'm asking is, isn't it a better, more easily applicable rule if we use the other other rather than GRI3?

[00:10:28] Speaker 02:
Because it seems to me that if we're going to go to the lowest level under GRI3, that that is much more subject to manipulation

[00:10:36] Speaker 02:
than just using the other, other category.

[00:10:41] Speaker 01:
There's no indication the drafters ever intended the other, other category to be used for mixtures.

[00:10:47] Speaker 02:
When you have a GRI-1... Okay, I understand it.

[00:10:49] Speaker 02:
But what if we... This is a situation where the drafters didn't contemplate mixed frozen fruit mixtures whatsoever.

[00:10:58] Speaker 02:
But also, again, we don't think the food preparation applies.

[00:11:03] Speaker 02:
We've got to put it somewhere.

[00:11:04] Speaker 01:
Well, then you would go to GLI-3.

[00:11:07] Speaker 01:
Okay.

[00:11:07] Speaker 01:
I think that would be incorrect.

[00:11:10] Speaker 02:
If that's the conclusion we reach, which I understand you don't want us to reach, what do we do, remand for application of GLI-3?

[00:11:17] Speaker 01:
Well, if you go with GLI-3 and remand, if you agree with 2106, 90, 98, you can reverse.

[00:11:24] Speaker 01:
Now, if I may speak for a moment to the food preparations.

[00:11:27] Speaker 01:
You can, but you're into your rebuttal time.

[00:11:31] Speaker 01:
Oh, I'm sorry.

[00:11:34] Speaker 01:
Very quickly, this court in the RT Foods case says that it's an expansive basket provision that only applies in the absence of any other appropriate heading.

[00:11:43] Speaker 01:
No minimum level of processing is required, and a simple mixture will do it.

[00:11:49] Speaker 01:
In the Arbor Foods case, 98% sugar and 2% gelatin

[00:11:54] Speaker 01:
was a food preparation.

[00:11:56] Speaker 01:
So a lot of preparation work is done to get these products in their condition.

[00:12:02] Speaker 01:
They're grown, harvested, reduced in size, subjected to phytosanitary testing, blended according to plant flavor and color palettes.

[00:12:13] Speaker 01:
If you went to a salad chef here in town who prepared this for you, I think he would say it's a food preparation.

[00:12:19] Speaker 01:
Thank you, Your Honor.

[00:12:21] Speaker ?:
Thank you.

[00:12:38] Speaker 03:
may it please the court.

[00:12:40] Speaker 03:
This appeal presents a simple issue of statutory interpretation, whether the term fruit in Hangar 811 covers fruit of all kinds and mixtures of fruit.

[00:12:52] Speaker 02:
I can you just tell me why you switched positions from what customs did to to what we're at now.

[00:12:59] Speaker 02:
I understand that because so I didn't follow the timeline in here but is Mr. Peterson correct that all these things that I'm looking at are after the one in this case.

[00:13:10] Speaker 03:
I couldn't say as to all of them, Your Honor, but I will say that our position now is that the trial court got it correct.

[00:13:16] Speaker 03:
I understand that as why.

[00:13:18] Speaker 03:
It got it correct because actually, we always try to classify under GRI 1 whenever possible.

[00:13:24] Speaker 03:
And so the court

[00:13:26] Speaker 03:
it used its analysis that GI1 you still classify under the other because you're looking at strawberries and raspberries and if any of those subheadings don't describe the product in whole then you must put it under the other provision and that follows RT Foods doing a similar analysis that they don't describe the product in whole at the same time.

[00:13:49] Speaker 02:
This case doesn't fit very comfortably in anything, but it seems a little bit strange because when it's talking about other, it's just referring under the subheading of other, it just has a bunch of other single frozen fruits.

[00:14:04] Speaker 02:
And then when it talks about a mix, it has a specific mix, and then it has other.

[00:14:15] Speaker 02:
To me, that doesn't naturally read as mixed fruit.

[00:14:18] Speaker 02:
It means as other unidentified single fruit, which is what you originally, Customs originally found.

[00:14:25] Speaker 02:
And then that's why they went to GRI 3.

[00:14:28] Speaker 02:
Yes, Your Honor.

[00:14:29] Speaker 02:
So that was the best argument for why the trial court is correct that other other applies to

[00:14:37] Speaker 02:
all fruit of any kind that's not specifically covered by any of the things above?

[00:14:43] Speaker 03:
Sure, Your Honor.

[00:14:44] Speaker 03:
So if we go back to GRI 1, and we found that the term fruit encompasses mixtures, like Judge Stark used the example of a bowl of fruit.

[00:14:53] Speaker 03:
Past the bowl of fruit, it could have a number of different kinds of fruits.

[00:14:57] Speaker 03:
But actually, this also applies to the term nuts.

[00:15:00] Speaker 03:
And nuts is also in the plural form.

[00:15:02] Speaker 03:
And also, if one said, pass me a bowl of nuts, it implies that's the plain meaning.

[00:15:06] Speaker 02:
Is that why fruits and nuts are together, or is it for some other reason?

[00:15:10] Speaker 03:
I don't know why they're together, Your Honor, but they are together in here, fruit and nuts.

[00:15:15] Speaker 03:
So actually, we look at the plain meaning of 0811.

[00:15:18] Speaker 03:
The term fruit encompasses mixed fruit, and the term nuts encompasses mixed nuts.

[00:15:22] Speaker 03:
And the heading encompasses, so that means we're done with GRI 1.

[00:15:26] Speaker 03:
We've established that the heading covers mixed fruit and mixed nuts, and also fruit and nuts.

[00:15:31] Speaker 03:
And then we go to the subheadings, and we note that there is no subheading for nuts.

[00:15:36] Speaker 03:
Isn't that interesting?

[00:15:37] Speaker 03:
Because that means our nuts will go under the other, and whether it's a single nut or mixed nuts.

[00:15:42] Speaker 03:
So now that we've established that the heading covers mixed fruit, all the subheadings have to, because we can't narrow or expand the meaning of the tariff heading.

[00:15:51] Speaker 02:
Let me make sure I follow that.

[00:15:52] Speaker 02:
The nuts, because there's no subheadings for nuts whatsoever, automatically default into other other.

[00:15:59] Speaker 02:
Yes, Your Honor.

[00:16:03] Speaker 02:
any kind of nut, including mixtures, because it's not.

[00:16:06] Speaker 02:
That does show that there's not just single nuts identified, and that this is meant to encompass other single nuts that were unidentified.

[00:16:17] Speaker 03:
Correct, Your Honor.

[00:16:18] Speaker 03:
And that applies also to the fruits.

[00:16:20] Speaker 03:
So if there's any fruits that are mixed with nuts, they would go under other, other.

[00:16:24] Speaker 03:
Anything that has a nut in it would go under other, other.

[00:16:26] Speaker 03:
So we know that the heading encompasses all types of mixed fruits, all types of mixed nuts, mixed fruits and nuts.

[00:16:33] Speaker 03:
And also, this is really – it's the only heading that talks about frozen fruit.

[00:16:37] Speaker 03:
So there's no other home for it.

[00:16:38] Speaker 03:
That just confirms that the plain meaning – we always assume that the drafters intended to make plain meaning, and there's no exclusion that mixed fruit cannot fit in here.

[00:16:48] Speaker 03:
So for all those reasons, this is the home for frozen fruit mixtures and frozen fruit and vegetable mixtures.

[00:16:58] Speaker 02:
The subheading, or the other subheading, I think you're now advocating it means none of the above.

[00:17:07] Speaker 02:
Is that a fair characterization of the government's position now?

[00:17:10] Speaker 02:
Yes, Your Honor.

[00:17:11] Speaker 03:
That's also the trial court's finding and determination following a line of cases that showed that the other provision means none of the above.

[00:17:19] Speaker 03:
In other words, none of the preceding headings describe the product in whole.

[00:17:23] Speaker 02:
And if we adopt that here,

[00:17:25] Speaker 02:
Would we be saying that wherever ever is used across the HTS, it always means none of the above?

[00:17:33] Speaker 03:
It should, if it's a similar structure like this.

[00:17:35] Speaker 03:
Other should mean none of the above.

[00:17:36] Speaker 03:
Other should mean none of the preceding subheadings.

[00:17:39] Speaker 02:
That sounds like you're asking us to make a broader thing than we need to.

[00:17:42] Speaker 02:
Other just means things not identified above, not none of the above.

[00:17:46] Speaker 02:
I mean, maybe that's, it's a linguistic, you know,

[00:17:53] Speaker 02:
difference without actual effect, but I would be concerned that if we said other means none of the above that it might play out differently in another context.

[00:18:03] Speaker 03:
Yes, I think the better reading is none of the preceding headings describe the product in whole and that's going with GI1 that the heading and the subheadings must describe the product in whole and all that line of cases.

[00:18:15] Speaker 02:
And if we said that much with that precision should we have some concern that that's going to cause damage?

[00:18:21] Speaker 02:
with other provisions elsewhere in the HDS?

[00:18:25] Speaker 03:
I don't think so, Your Honor, because as the court cited, a whole line of cases for GI-1 means it must describe the product in whole.

[00:18:33] Speaker 03:
And then we also have a line of cases, like in RT Foods, where there was a product that had one of the ingredients was not listed in the subheading, so then it was classified in other, even though another of the ingredients

[00:18:46] Speaker 03:
The antipasto and the beans were in the subheadings, but because it had more than just one of those two, it was put in the other.

[00:18:53] Speaker 03:
And we believe the trial court is correct in following that analysis.

[00:18:59] Speaker 02:
Do you want to respond briefly to his food preparation argument?

[00:19:02] Speaker 03:
Yes, Your Honor.

[00:19:03] Speaker 03:
So, it's not food preparation for various reasons.

[00:19:06] Speaker 03:
First, we know that we concede that these products are food, but that also means that it must be more than just food in order to be a preparation.

[00:19:16] Speaker 03:
Otherwise, it would render the term food surplusage.

[00:19:18] Speaker 03:
So, what constitutes a preparation?

[00:19:21] Speaker 03:
There's

[00:19:22] Speaker 03:
There's several different tests.

[00:19:24] Speaker 03:
One of the tests is from Orlando Food that says that the food preparation must have a specific use.

[00:19:32] Speaker 03:
And here we have a number of different uses.

[00:19:36] Speaker 03:
They're very wide ranging.

[00:19:38] Speaker 03:
That's at the appendix 189.

[00:19:40] Speaker 03:
These products have a wide range of possible end uses.

[00:19:43] Speaker 03:
They're used for many purposes.

[00:19:45] Speaker 03:
Smoothies, fruit salads, toppers for oatmeal, cereal, waffles, yogurt, sauces, chutneys, sorbets.

[00:19:51] Speaker 03:
These are many different uses.

[00:19:53] Speaker 03:
Finally, plaintiff admits that plaintiff does not know how a customer will ultimately use the products at issue.

[00:20:01] Speaker 03:
Because it's such a wide variety of uses and it's not a specific use and some uses are unknown, that's not meeting the definition of specific use.

[00:20:09] Speaker 03:
A specific use must be something that's not unknown and you could use it on almost anything.

[00:20:15] Speaker 02:
Do we have to decide whether OA11 is an A or nominee provision or just a general description?

[00:20:21] Speaker 02:
Does it make a difference to the outcome of this appeal?

[00:20:24] Speaker 03:
I don't believe it makes a difference, Your Honor.

[00:20:26] Speaker 03:
We do believe it is an E or nominee provision because the terms at issue here are frozen fruit and nuts, frozen nuts, frozen fruit, mixtures of frozen fruit and nuts.

[00:20:36] Speaker 03:
And so that's more specific than

[00:20:39] Speaker 03:
of headings that are of general description.

[00:20:43] Speaker 03:
But regardless, it is a neonominic provision.

[00:20:46] Speaker 03:
If you look at the plain meaning of fruit

[00:20:48] Speaker 03:
and it encompasses mixtures of either or both.

[00:20:52] Speaker 02:
I just have one other question.

[00:20:53] Speaker 02:
The blue brief at page 30 says that, historically, whenever Congress wanted a tariff provision to embrace mixtures, it expressly so provided by including the word mixtures in the heading or in the provision elsewhere.

[00:21:07] Speaker 02:
Is that historically correct?

[00:21:09] Speaker 02:
And if it is, should that impact our provision?

[00:21:11] Speaker 03:
I don't think so, Your Honor.

[00:21:12] Speaker 03:
That's a very broad generalization.

[00:21:14] Speaker 03:
I don't believe that's correct.

[00:21:16] Speaker 03:
I think a number of headings.

[00:21:18] Speaker 03:
We look, we go back to whether, what is the definition of an eonominate provision, and it will include any products that are described in whole by the plain meaning.

[00:21:26] Speaker 03:
So we always have to assume that the drafters intended the plain meaning, and so because the plain meaning of fruit encompasses mixtures, and here in the heading 0811, it also encompasses mixtures.

[00:21:45] Speaker 02:
Let me ask you a hypothetical.

[00:21:48] Speaker 02:
What if it was a mixture of various berries plus sugar plus a thickener to be sold as pie filling?

[00:21:57] Speaker 02:
Is that a food preparation?

[00:21:58] Speaker 03:
I'm not going to venture out and have a specific definition of what are the processes that make something a preparation.

[00:22:05] Speaker 03:
There are lots of different processes if we look at EN21.06.

[00:22:11] Speaker 03:
There were, I think, 20 or so different types of processes.

[00:22:14] Speaker 03:
But we can compare those processes to here.

[00:22:17] Speaker 03:
A lot of them have chemical preparations.

[00:22:21] Speaker 03:
In your example, there's something else that's injected into the food preparation.

[00:22:25] Speaker 02:
That at least is closer to a food preparation.

[00:22:27] Speaker 02:
Yes, I would say.

[00:22:28] Speaker 02:
I know it's not very much.

[00:22:29] Speaker 03:
Here all we have is frozen fruit.

[00:22:38] Speaker 03:
The fruit arrives in Canada and it's just frozen and it's already cut for most of them except for the blueberries.

[00:22:45] Speaker 03:
All they're doing is putting them in a package.

[00:22:49] Speaker 03:
some berries and some kale and put in a pack, that's it.

[00:22:52] Speaker 03:
That's not a food preparation.

[00:22:54] Speaker 03:
And again, also because there's not a specific use like in Orlando food, we had canned tomatoes that were considered a food preparation because they were then going to be used, had a specific use of being used as a tomato sauce base.

[00:23:10] Speaker 03:
We don't have that here.

[00:23:11] Speaker 03:
Also, the food here is consumed as such, and there's an EN that explains 21.06

[00:23:18] Speaker 03:
Paragraph 15 that excludes mixtures of cut fruits and vegetables from heading 2106 if they are fit for consumption as such.

[00:23:26] Speaker 02:
E and an evaluation note or explanatory note?

[00:23:29] Speaker 02:
Explanatory.

[00:23:30] Speaker 02:
Thank you.

[00:23:31] Speaker 00:
I apologize.

[00:23:32] Speaker 00:
Can I go back to the e-nominate issue?

[00:23:36] Speaker 00:
Am I right in believing that the trial court found that issue had been waived?

[00:23:43] Speaker 03:
About the e-nominate versus general provision?

[00:23:46] Speaker 03:
Correct.

[00:23:47] Speaker 03:
The general one.

[00:23:49] Speaker 03:
I'm not sure, Your Honor, to be honest, but I know it was included here.

[00:23:55] Speaker 03:
If it wasn't included in the trial court's decision because of waiver, then we would submit that that would also be waived at this level.

[00:24:04] Speaker 03:
Thank you.

[00:24:08] Speaker 02:
Do we have anything else?

[00:24:11] Speaker 03:
Let's see if I can maybe respond to some of the other arguments that had been made.

[00:24:20] Speaker 03:
We also note that other is a basket provision.

[00:24:24] Speaker 03:
So again, there's lots of case law showing that that's where you put something when the previous subheadings do not describe the products in a whole.

[00:24:34] Speaker 03:
And all of the products are appropriately classified under 08-11.

[00:24:40] Speaker 03:
The all-fruit mixtures are, by GI1, classified in 08-11.

[00:24:45] Speaker 03:
and the fruit and vegetable mixtures by GRI3B, because they have a different composition of vegetables and fruit.

[00:24:52] Speaker 03:
But the fruit predominates, so those are also under GRI3B, classified at OE11.

[00:24:58] Speaker 03:
Now that we have all of the mixtures in OE11, we just go back to GI1, and they're all classified under GI1, under other, and then other again, at the six and eight-digit subheading levels.

[00:25:10] Speaker 03:
Finally, we can confirm that frozen mixtures are included because it says so at 0811.90.80.85.

[00:25:22] Speaker 03:
And that doesn't inform our understanding of the plain meaning, but it sure confirms that frozen mixtures are provided for here, as it states.

[00:25:30] Speaker 03:
Frozen mixes only have combinations of strawberries, et cetera.

[00:25:33] Speaker 03:
So that also dovetails with our argument that mixtures of frozen fruit and nuts are all classified in this heading.

[00:25:44] Speaker 03:
To conclude, this court should affirm the trial court's sound judgment, because the undisputed facts show that the subject merchandise is described in full by the tariff terms fruit, frozen, of heading 0811, and it's further properly classified under subheading 0811-9080.

[00:26:01] Speaker 03:
And the trial court committed no legal error in interpreting the tariff terms fruit, other, and food preparations, as those terms are defined by dictionaries, the explanatory notes, and the legal standards set by this and other courts.

[00:26:21] Speaker 02:
Mr. Peterson, you've got a little over three minutes left.

[00:26:25] Speaker 01:
I'll try to make it work.

[00:26:29] Speaker 01:
If I may first, I'd like to address Judge Stark's question about whether or not the term fruit is an AOMA provision.

[00:26:35] Speaker 01:
It's not, and there's an easy way to see this.

[00:26:38] Speaker 01:
If you walk into the market and you say to the keeper, I'd like to buy one fruit, they're going to look at you.

[00:26:44] Speaker 01:
And then they're going to say, what fruit do you want?

[00:26:46] Speaker 01:
Name it.

[00:26:48] Speaker 01:
So, fruit is just a general description term.

[00:26:50] Speaker 01:
If I say I want a blazing berry, okay, now I've named it fruit.

[00:26:54] Speaker 01:
So, you see these aionominate provisions at the six and eight-digit level here.

[00:26:59] Speaker 01:
But at the four-digit level, that term fruit is not an aionominate provision, and the lower court was wrong in saying that 08-11-1980 covered our products both in whole.

[00:27:10] Speaker 00:
Was this how it was noted in your opening brief?

[00:27:13] Speaker 01:
Oh, yes.

[00:27:16] Speaker 01:
I think we drove the home a little stronger in the rebuttal brief, but it's not an ill-nominated provision.

[00:27:22] Speaker 01:
Now, the other thing to bear in mind here is Congress means what it says, and it created plenty of provisions for mixed fruits and mixed nuts, just not one for a thousand.

[00:27:35] Speaker 01:
If you look at footnote two on page 11 of our principal brief, they're all over there.

[00:27:39] Speaker 01:
What about nuts?

[00:27:40] Speaker 01:
Well, heading 0813,

[00:27:42] Speaker 01:
contains provisions for mixtures of nuts.

[00:27:44] Speaker 01:
A late one, 350, is mixtures of pea pods and chestnuts.

[00:27:49] Speaker 01:
So yeah, they have it, but they didn't do it for frozen nuts now.

[00:27:55] Speaker 01:
I'm not aware of why anyone would freeze nuts.

[00:28:00] Speaker 02:
Yeah, me either.

[00:28:00] Speaker 02:
That's probably why there's no specific, you know, subheadings with the nuts.

[00:28:05] Speaker 02:
But can you tell me why it really matters?

[00:28:07] Speaker 02:
Assuming that food preparation is out, why does it matter whether frozen fruit is an anomaly or just a general descriptor?

[00:28:16] Speaker 01:
Well, it matters because of the question of mixtures.

[00:28:19] Speaker 01:
When the draft gives you the tariff and Congress will enact the tariff, means to cover the mixture and the specific rate of duty, they do it.

[00:28:28] Speaker 01:
And we know from looking at that footnote in our briefs, they know how to do it.

[00:28:31] Speaker 02:
But I think I have the same question as Judge Hughes.

[00:28:34] Speaker 02:
If we're in an 0811 world, just assume for the moment you lost on the 2106 argument,

[00:28:40] Speaker 02:
Why does it matter if food is area-nominated or general description?

[00:28:43] Speaker 02:
You're going to end up somewhere in 0811 anyway.

[00:28:48] Speaker 01:
Well, no, not necessarily, because the important thing is... Where else could you be?

[00:28:52] Speaker 01:
It would go by GRI 3B if you don't put it in the food preparation.

[00:28:56] Speaker 02:
Are they in 0811?

[00:28:58] Speaker 02:
Doesn't that mean you're going to end up in it?

[00:29:00] Speaker 02:
If that was our ruling, that 0811 is right and 2106 is not, you're going to end up in a tariff subheading somewhere under 0811, correct?

[00:29:09] Speaker 01:
Oh yeah, but that would be a real problem of statutory interpretation, because Congress expressly intended not to include a mixtures provision on 0811.

[00:29:19] Speaker 01:
What the lower court does is it implies one.

[00:29:21] Speaker 02:
Can you tell me what we do with that if we determine the food preparation one isn't applicable?

[00:29:27] Speaker 02:
Okay, it's a very simple decision.

[00:29:29] Speaker 02:
Where do we... If it doesn't go into 0811 and it doesn't go into food preparation, where does it go?

[00:29:35] Speaker 01:
Well, it has to be classified.

[00:29:36] Speaker 01:
If it doesn't, it goes into GRI 3-B or 3-C.

[00:29:41] Speaker 01:
It won't go into 0811-98.

[00:29:44] Speaker 01:
It will be classified according to that single fruit that imparts the essential character.

[00:29:49] Speaker 02:
But it doesn't have to be 0811.

[00:29:50] Speaker 02:
Right.

[00:29:50] Speaker 02:
It will be an 0811.

[00:29:51] Speaker 02:
But I'm asking, why does it matter whether it's a nominee or not?

[00:29:55] Speaker 02:
It's going to end up in the 0811.

[00:29:57] Speaker 01:
Well, because if the 0811 blueberries definition is the blueberries of the essential character, that mixture is duty free.

[00:30:06] Speaker 01:
If you say, well, I'm just going to dump it all in 90, then the duty rate is 14.9%.

[00:30:09] Speaker 01:
And Congress never intended that.

[00:30:12] Speaker 01:
Okay.

[00:30:13] Speaker 01:
Thank you, Mr. Peterson.

[00:30:14] Speaker 01:
Thank you.