CIT's Ninestar Decision Shows CIT Has Jurisdiction to Hear CAMLR Case, Importer Argues

The Court of International Trade's recent decision that it has subject matter jurisdiction in a challenge to an addition to the Uyghur Forced Labor Prevention Act Entity List "directly addresses" a jurisdictional issue raised by the trade court in a separate action, importer Southern Cross said in a Dec. 1 notice of supplemental authority. CIT's ruling in Ninestar Corp. v. U.S. shows that the court has jurisdiction to hear the importer's case on the National Marine Fisheries Service's rejection of importer Southern Cross Seafoods' application for preapproval to import Chilean sea bass, the brief said (Southern Cross Seafoods v. United States, CIT # 22-00299).

In Ninestar, the question was whether the challenge to the UFLPA Entity List addition fell under the court's jurisdiction as established by Section 1581(i), CIT's "residual" jurisdiction (see 2310100033). That statute covers, among other things, civil actions regarding "embargoes or other quantitative restrictions." Judge Gary Katzmann said that the UFLPA Entity List constitutes an embargo, noting that the law "establishes a presumption that 'prohibit[s]' the 'importation' of merchandise."

"In this manner, Ninestar directly addresses the question asked by the Court in its June 14, 2023 letter," Southern Cross said. "Government action that bars the importation of individual shipments is an embargo within the meaning of 28 U.S.C. § 1581(i).

In Southern Cross' case, the company sought preapproval to import Chilean sea bass from Subarea 48.3 of the South Georgia fishery. The company noted that under U.S. law, it is 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 Conservation of Antarctic Marine Living Resource (CAMLR) Convention or in violation of any regulation promulgated under this title" (see 2210140029).

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. Southern Cross said the CAMLR Commission doesn't bar fishing in this area given the absence of measures establishing a catch limit and other requirements. Nevertheless, the U.S. denied Southern Cross' preapproval application, saying the toothfish were "harvested in contravention of CCAMLR CM 31-01."

The trade court raised a question in a letter before oral argument on whether the NMFS' rejection of Southern Cross' application constituted a quantitative restriction and gave the court jurisdiction under Section 1581(i). Southern Cross said Ninestar firmly answered this question in the affirmative.