Chilean Sea Bass Importer Challenges Denial of Import Preapproval Application

The National Marine Fisheries Service illegally denied importer Southern Cross Seafood's application for preapproval to import Chilean sea bass, Southern Cross argued in an Oct. 12 complaint at the Court of International Trade. NMFS said it could not permit the imports given the lack of a Conservation of Antarctic Marine Living Resources Convention (CAMLR) conservation measure for the area in the Atlantic Ocean north of Antarctica where the fish are harvested. Southern Cross argued that the Commission for the CAMLR does not prohibit fishing for the sea bass there in the absence of a conservation measure (Southern Cross Seafoods v. U.S., CIT #22-00299).

Southern Cross imports Patagonian toothfish, referred to as Chilean sea bass, fished in the Subarea 48.3 area of the South Georgia fishery in the Atlantic Ocean. It submitted an application to import fish taken from this area. Under U.S. law, it is only illegal to import any Antarctic marine living resource "harvested in violation of a conservation measure in force with respect to the United States pursuant to article IX of the [CAMLR] Convention or in violation of any regulation promulgated under this title," Southern Cross said, citing 16 U.S.C. § 2435(3).

In 2021, Russia unilaterally blocked the imposition of a catch limit and other fishery-specific measures from being set by the CAMLR Commission for the 2021-2022 fishing season for Subarea 48.3, the importer said. In the absence of a CAMLR Commission measures establishing a catch limit and other requirements, the CAMLR Commission does not prohibit fishing for toothfish in this area, Southern Cross argued.

Nevertheless, the U.S. denied Southern Cross' preapproval application for the toothfish, saying the fish were "harvested in contravention of CCAMLR CM 31-01." This denial was made in error given that the U.S. failed to show that the fish was harvested or exported in violation of any CCAMLR conservation measure in force as required by U.S. law, the complaint said.

"Defendants had no legal basis upon which to deny Southern Cross’s application for preapproval under 50 C.F.R. § 300.105. Denying Southern Cross’s application was contrary to U.S. law and U.S. obligations under the CAMLR Convention and the CCAMLR conservation measures that are in force with respect to the United States," the brief said. "The arbitrary and capricious manner in which Defendants denied Southern Cross’s preapproval application violated the Administrative Procedure Act."

The importer wants the trade court to issue a judgment finding that the U.S. cannot deny future applications for preapproval submitted by Southern Cross based on the absence of a CCAMLR conservation measure in force at the time; hold that NMFS' decision was "arbitrary, capricious, an abuse of discretion, and otherwise" in violation of the APA; vacate the embargo of the preapproval application; and award the importer refunds for attorney's fees. The suit was filed under Section 1581(i), the court's "residual" jurisdiction.