NOAA Seeks Remand to Extend Comparability Finding in Case Over Import Ban on New Zealand Seafood

The Court of International Trade should give the National Oceanic and Atmospheric Administration a voluntary remand in a case seeking a Marine Mammal Protection Act ban on imports of fish and fishery products from New Zealand caught using techniques that allegedly have caused the near extinction of the Maui dolphin, the U.S. argued in a Nov. 8 motion. The voluntary remand would let the NOAA "amend the current comparability findings for certain New Zealand fisheries whose expiration dates conform with the deadlines set forth for other comparability findings to be issued under the Marine Mammal Protection Act and 50 C.F.R. § 216.24(h)," the government said (Sea Shepherd New Zealand v. United States, CIT #20-00112).

Plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society oppose the motion while the New Zealand Government, defendant-intervenor in the case, consents to the motion.

A measure in the MMPA allows for an embargo on the importation of fish or fish products captured in foreign commercial fisheries that fail to provide marine mammal species with a comparable level of protection as that afforded by the U.S. NOAA then issued a regulation to implement the MMPA, laying out the procedures that exporting countries must follow to get "comparability findings." Following an exemption period, all fish or fish product imports must have been caught in a foreign fishery for which NOAA has made a comparability finding. The agency, though, extended the exemption period, meaning any new comparability finding would take effect on Jan. 1, 2024.

Sea Shepherd then filed its case seeking the import ban on fish and fish goods caught using gillnets and trawl nets within the Maui dolphin's range. Earlier in the matter, the U.S. sought a voluntary remand to address new issues raised by the plaintiffs, including scientific literature that came out after NOAA's denial of Sea Shepherd's petition. The remand was granted, during which New Zealand applied for comparability findings. The findings were granted, though Sea Shepherd's supplemental petition was denied. The comparability findings will expire on Dec. 31, 2022, leading Sea Shepherd to renew its injunction motion at CIT.

NOAA now says it will be unable to finish its review of New Zealand's requests for comparability findings by the current deadline, asking instead to be beholden to the Jan. 1, 2024, deadline. Seeking a voluntary remand at CIT again, the U.S. argues that keeping NOAA to the current deadline "would impose unnecessary procedural burdens on the Court and parties." The old comparability findings overlap significantly with the renewed motion for an injunction, so if the old comparability findings were to expire, it would disadvantage all parties, the brief said. "Accordingly, the best course would be to maintain the current procedural status quo," the brief said.