No Expedited Briefing Needed in Case on Ability to Import Sea Bass, US Tells CIT

The Court of International Trade should deny fish importer Southern Cross Seafoods' motion to expedite a case concerning the importer's application for preapproval to enter Chilean sea bass since the question of jurisdiction should settle the action, the U.S. argued in a Nov. 28 reply brief. The motion to expedite is "premature and unwarranted," and failing to expedite would not deprive Southern Cross of its requested relief, the U.S. said (Southern Cross Seafoods v. United States, CIT # 22-00299).

Southern Cross imports Patagonian toothfish, referred to as Chilean sea bass, fished in Subarea 48.3 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] [the Conservation of Antarctic Marine Living Resources] 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. Southern Cross argued that in the absence of a CAMLR Commission measure establishing a catch limit and other requirements, the CCAMLR Commission does not prohibit fishing for toothfish in this area.

Nevertheless, the U.S. denied Southern Cross' preapproval application for the toothfish, saying the fish were "harvested in contravention of CCAMLR CM 31-01." The importer took to the trade court to argue that the 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 (see 2210140029). Southern Cross then moved for expedited briefing and resolution in the case, arguing that if the case is not sped along, it will lose out on all U.S. sales and not be able to use the fish it catches (see 2211220033).

In response, the government claimed that failing to expedite would not deprive the importer of its requested relief. Southern Cross asked the court to prevent the U.S. from denying future applications for preapproval. "Given this request, it is difficult to ascertain how, even if true, the inability to import toothfish harvested from one specific subarea into one specific country for one season ... would deprive plaintiff of much of the value of the requested relief, as the requested relief extends into perpetuity and nothing prevents plaintiff from harvesting from other areas and importing to other countries," the U.S. said.

As for the plaintiff's claim that expedited briefing is needed since the toothfish are perishable goods, the U.S. said that even the importer acknowledges that toothfish can be frozen for at least a two-year period. Aside from that, Southern Cross said that buyers expect the fish to be delivered with at least one year of remaining shelf life. The U.S. said that there was no evidence to back this claim, giving the court at least two years from the time the fish are caught to render a decision -- a time frame with an end date in June 2024.

While Southern Cross argued that the public interest favors an expedited briefing schedule, the U.S. said that the public interest actually falls on the side of the court not considering the merits of the claims until after it rules on the government's "forthcoming motion to dismiss." The U.S. said that "16 U.S.C. 2440 vests the district courts with exclusive jurisdiction over claims regarding the CCAMLR; accordingly, this Court does not have jurisdiction to entertain the complaint."