Trade Court Orders US to Explain Omission of Documents in Case on Chilean Sea Bass Imports

The U.S. must further explain its decision not to add certain documents to the record in a case on the National Marine Fisheries Service's rejection of importer Southern Cross Seafoods' application for preapproval to import Chilean sea bass, the Court of International Trade ruled. Judge Timothy Reif said in an Oct. 5 opinion made public Oct. 10 that the government must address inconsistencies in its reasons for not including information showing how the NMFS obtained outside legal opinions included in the administrative record and information identifying who authored a relevant legal opinion.

Southern Cross' success in its motion to supplement the record ended there, because the judge then denied the bid for five other categories of documents. Reif said that the U.S. either submitted the requested documents or did not leave them off in bad faith after certifying the completeness of the record.

Southern Cross submitted an application to import Chilean sea bass fished in the Subarea 48.3 area 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 importer took to the trade court to contest the move.

In the case, Southern Cross filed a motion to supplement the record with six categories of goods. One such category, Category 2, consists of two document types: any information on how the NMFS "obtained outside legal opinions" in the administrative record and any information on "who authored the legal opinion titled 'Legal Opinion in relation to the toothfish fishing licenses granted by the Government of South Georgia for the 2022 season in the 48.3 area of CCAMLR.'" On the first type of documents, the U.S. said the legal opinions were not requested by NMFS but instead were sent in unsolicited from various external groups. As a result, there's no need to include them, the government noted.

Regarding the author of the opinion, the U.S. said the author was not found, though the government included in the administrative record an email regarding the opinion's creation. Reif said he found a "potential inconsistency" in NMFS' original inclusion of the legal opinion and the claim that NMFS did not consider unsolicited legal opinions. The judge pointed to an email from a government official describing the legal opinion as "interesting."

"Defendants have not sufficiently explained why, if NMFS did not in fact consider directly or indirectly any outside legal opinions in rendering its decision, NMFS included the Legal Opinion in the administrative record," the opinion said. "Further, defendants have not sufficiently explained the reason that the 'unsolicited' nature of the external legal opinions necessarily equates to NMFS disregarding the unsolicited legal opinions in its decision-making."

The court dispatched the motion regarding categories 1 and 6 -- which requested a single document from NMFS and communications from non-governmental organizations and other governments on whether the importation of toothfish from this subarea required a CCAMLR catch limit, respectively. Reif noted how the government responded to plaintiff's motion and added the requested documents.

Consideration of the remaining three categories of documents -- Categories 3, 4 and 5 -- was settled when the court said that Southern Cross made no showing of bad faith on the agency's part when the agency left the documents off the record. The court assumes a record is complete where the agency has certified it, absent a showing of bad faith.

(Southern Cross Seafoods v. United States, Slip Op. 23-146, CIT # 22-00299, dated 10/05/23; Judge: Timothy Rei; Attorneys: David Bond of White & Case for plaintiff Southern Cross; Sosun Bae for defendant U.S. government; Keith Hagg for defendant National Oceanic Atmospheric Administration)