CIT Says No Jurisdiction to Hear Suit on CAMLR-Related Decisions

The Court of International Trade doesn't have jurisdiction to hear importer Southern Cross Seafoods' challenge to the National Marine Fisheries Service's rejection of its application for preapproval to import Chilean sea bass, the court ruled Dec. 7. Judge Timothy Reif said that the agency's decision, issued under the Antarctic Marine Living Resources Convention Act of 1984 (AMLRCA), doesn't constitute an "embargo or other quantitative restriction," barring jurisdiction under Section 1581(i), the court's "residual" jurisdiction.

Reif found AMLRCA and its implementing regulations as a whole don't provide for an embargo, finding the law merely regulates the import of Chilean sea bass. The language in the AMLRCA making it illegal to import the fish "is expressly conditioned on the terms of the" Convention on the Conservation of Antarctic Marine Living Resources (CAMLR) "and the conservation measures adopted thereunder," differentiating it from an embargo. The law also doesn't set a non-zero numerical or quantitative limit on importation of the fish, setting it apart from a quantitative restriction.

The court invited the parties to file a motion to transfer "to the appropriate district court."

Southern Cross imports Patagonian toothfish, referred to as Chilean sea bass, from the Subarea 48.3 area of the South Georgia fishery in the Atlantic Ocean. It submitted an application to the National Marine Fisheries Service to import fish taken from this area. Under U.S. law, it is illegal to import any Antarctic marine living resource fished in violation of a conservation measure set under article IX of the CAMLR Convention. In the U.S., CAMLR Convention conservation measures are imposed under the AMLRCA.

In 2021, Russia unilaterally blocked the CAMLR Commission from imposing a catch limit and other fishery-specific measures for the 2021-22 fishing season for Subarea 48.3. Without these conservation measures, the CAMLR Commission doesn't prohibit fishing for toothfish in that area, Southern Cross argued at the trade court (see 2210140029).

The U.S. nonetheless denied Southern Cross' preapproval application for the toothfish, saying the fish were "harvested in contravention of CCAMLR CM 31-01." The importer claimed that the request was illegally denied given that the U.S. failed to show that the fish was harvested or exported in violation of any CAMLR conservation measure in force as required by U.S. law. The government argued that the denial of a preapproval application under the AMLRCA does'not put the case under CIT's jurisdiction.

The trade court's jurisdiction under Section 1581(i) covers, among other things, civil actions regarding "embargoes or other quantitative restrictions." Reif ruled that the preapproval process at issue here doesn't qualify as an embargo or quantitative restriction, given that the National Marine Fisheries Service isn't allowed to "institute a blanket ban on toothfish through the denial of an application for a preapproval certificate." Instead, the agency can issue a certificate if certain conditions are met.

The denial of Southern Cross' preapproval certificate was limited to one shipment of toothfish, further showing that the denial is not a quantitative restriction under the statute, the court held.

In assessing the AMLRCA generally, Reif heavily relied on the U.S. Supreme Court's 1988 ruling in K Mart Corp. v. Cartier. In that decision, the high court said that an embargo, for Section 1581(i) purposes, is a "governmentally imposed quantitative restriction -- of zero -- on the importation of the merchandise." Here, the AMLRCA sets as a condition of importation that the entry be harvested in compliance with CAMLR Convention measures, giving the National Marine Fisheries Service authority to deny a preapproval application on the grounds that the condition hasn't been met. As in K Mart, "such a prohibition may not 'magically' become an embargo of imports that do not meet the conditions of AMLRCA," the court said.

Reif differentiated the trade-restrictive tools at issue here and other instances in which the jurisdiction has been found at the trade court. He pointed to a CIT judge's recent determination that the court had jurisdiction over challenges to Uyghur Forced Labor Prevention Act Entity List additions (see 2311300038). Reif said the present case differs because the UFLPA "provides for an embargo of goods that are from the Xinjiang Uyghur Autonomous Region" or are made by companies linked to that region. "The UFLPA allows for exceptions to the default ban by delineating a rebuttable presumption that the import prohibition applies to goods from or associated with the region," the opinion said.

(Southern Cross Seafoods v. U.S., Slip Op. 23-171, CIT # 22-00299, dated 12/7/23; Judge: Timothy Reif; Attorneys: David Bond of White & Case for plaintiff Southern Cross Seafoods; Sosun Bae for defendant U.S. government; Keith Hagg of the National Oceanic and Atmospheric Administration for defendant National Marine Fisheries Service)