Slip Op. 23-171

UNITED STATES COURT OF INTERNATIONAL TRADE 

SOUTHERN CROSS SEAFOODS, LLC, 

Plaintiff, 

v. 

UNITED STATES, 

and 

NATIONAL MARINE FISHERIES 

SERVICE, 

Defendants. 

Before: Timothy M. Reif, Judge 

Court No. 22-00299

OPINION AND ORDER 

[Concluding that the court lacks subject matter jurisdiction and inviting parties to file 

motions within 21 days of this opinion to transfer the action to the appropriate district 

court.] 

Dated: December 7, 2023

David E. Bond, Earl W. Comstock, Lucius B. Lau, Cristina M. Cornejo, White & Case, 

LLP, of Washington, D.C., for plaintiff Southern Cross Seafoods, LLC. 

Sosun Bae, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, D.C., for defendant United States. With her on 

the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia 

M. McCarthy, Director, L. Misha Preheim, Assistant Director.

Keith A. Hagg, Attorney-Advisor, National Oceanic Atmospheric Administration, Office 

of General Counsel of Silver Spring, M.D. for defendant National Marine Fisheries 

Service. 
Court No. 22-00299 2 

Reif, Judge: Before the court is a motion by the United States (“the government”) 

and the National Marine Fisheries Service (“NMFS”)1 (collectively, “defendants”) to 

dismiss the complaint of Southern Cross Seafoods, LLC (“plaintiff” or “Southern Cross”) 

brought under 28 U.S.C. § 1581(i)(1)(C) and (D) for lack of subject matter jurisdiction 

pursuant to United States Court of International Trade (“USCIT” or “the Court”) Rule 

12(b)(1). Defs.’ Mot. Dismiss at 1, ECF No. 25. 

 Plaintiff seeks a declaratory judgment against the denial of plaintiff’s application 

for preapproval and any future applications for preapproval of its imports of Patagonian 

toothfish or Dissostichus eleginoides (“toothfish”) from the Food and Agriculture 

Organization of the United Nations Statistical Subarea 48.3 in the South Georgia fishery 

(“Subarea 48.3”). Corrected Compl. ¶¶ 1, 9, 12, 54, ECF No. 14. The denial was due 

to the lack of a conservation measure (“CM”) in force for the Convention on the 

Conservation of Antarctic Marine Living Resources (“CAMLR Convention”). Id. Plaintiff 

also challenges the actions of NMFS under the Administrative Procedure Act (“APA”), 5 

U.S.C. § 706(2). Id. ¶¶ 8-9, 56, 58. 

 In their motion to dismiss, defendants argue that plaintiff’s action does not arise 

out of a law providing for an “embargo” or other “quantitative restriction” under 28 

U.S.C. § 1581(i)(1)(C) or (D) and that, even if plaintiff’s action did so arise, the Court 

lacks subject matter jurisdiction because the district courts have exclusive jurisdiction 

pursuant to 16 U.S.C. § 2440. Defs. Mot. Dismiss at 1, 5-6. Plaintiff opposes the 

motion to dismiss. See Pl.’s Resp. in Opp’n to Defs.’ Mot. Dismiss (“Pl. Resp.”), ECF 

1 NMFS is a federal agency within the National Oceanic and Atmospheric 

Administration (“NOAA”). Corrected Compl. ¶ 15. NOAA is situated within the U.S. 

Department of Commerce (“Commerce”). Id.
Court No. 22-00299 3 

No. 26. For the reasons discussed below, the court concludes that it lacks subject 

matter jurisdiction. 

BACKGROUND 

I. Factual background 

 The objective of the CAMLR Convention is “the conservation of Antarctic marine 

living resources.” Convention on the Conservation of Antarctic Marine Living Resources 

art. II, ¶ 1, May 20, 1980, 33 U.S.T. 3476, 1329 U.N.T.S. 47 (“CAMLR Convention”). 

“For the purposes of this Convention, the term ‘conservation’ includes rational use.” Id.

at art. II, ¶ 2. Member countries of the Commission for the Conservation of Antarctic 

Marine Living Resources (“CCAMLR” or “the Commission”) establish conservation 

measures for Subarea 48.3 by consensus. Corrected Compl. ¶ 2; see CAMLR 

Convention art. IX, ¶ 1.f, 33 U.S.T. at 3483, 1329 U.N.T.S. at 51. Conservation 

measures include, inter alia, “the designation of the quantity” of species that may be 

harvested as well as the designation of harvesting seasons and the regulation of 

harvesting methods. CAMLR Convention art. IX, ¶ 2.a-i, 33 U.S.T. at 3483-84, 1329 

U.N.T.S. at 52. The United States implements the CAMLR Convention through the 

Antarctic Marine Living Resources Convention Act of 1984 (“AMLRCA”), 16 U.S.C. §§ 

2431, et seq.2 Commerce has promulgated regulations to implement AMLRCA. See 50 

C.F.R. § 300.100–116. 

2 16 U.S.C. § 2431 sets forth the intent of Congress in the implementation of the 

Convention:

(a) Findings 

 The Congress finds that— 

 (1) the Convention on the Conservation of Antarctic 

 Marine Living Resources establishes international 
Court No. 22-00299 4 

 Under CCAMLR CM 31-01 (1986), “the Commission shall, at its 1987 Meeting, 

adopt limitations on catch, or equivalent measures, binding for the 1987/88 season. . . . 

For each fishing season after 1987/88, the Commission shall establish such limitations 

or other measures, as necessary, [for Subarea 48.3].” CCAMLR CM 31-01 (1986). The 

CCAMLR did not adopt a catch limit or equivalent measures for Subarea 48.3 for the 

2021/22 fishing season because “Russia blocked consensus to adopt proposed CM 41-

02.” Letter from Alexa Cole, Director, Office of Int’l Affairs, Trade, and Commerce, Nat’l 

Marine Fisheries Service, to Daniel Thomas, Southern Cross Seafoods, LLC (“NMFS 

Denial Letter”) (Sept. 15, 2022) at 2, PR 83; see Corrected Compl. ¶ 4. 

 mechanisms and creates legal obligations necessary 

 for the protection and conservation of Antarctic marine 

 living resources; 

(2) the Convention incorporates an innovative ecosystem 

approach to the management of Antarctic marine living 

resources, including standards designed to ensure the health 

of the individual populations and species and to maintain the 

health of the Antarctic marine ecosystem as a whole; 

(3) the Convention serves important United States 

environmental and resource management interests; 

(4) the Convention represents an important contribution to 

United States long term legal and political objectives of 

maintenance of Antarctica as an area of peaceful 

international cooperation; 

(5) United States basic and directed research programs 

concerning the marine living resources of the Antarctic are 

essential to achieve the United States goal of effective 

implementation of the objectives of the Convention; and 

(6) the United States has important security, economic, and 

environmental interests in developing and maintaining a fleet 

of icebreaking vessels capable of operating effectively in 

the heavy ice regions of Antarctica. 

16 U.S.C. § 2431. 
Court No. 22-00299 5 

 On August 8, 2022, Commerce received plaintiff’s application for preapproval to 

import into the United States toothfish harvested from Subarea 48.3 in June and July 

2022. NMFS Denial Letter at 1; see Application for Pre-Approval Certificate to Import 

Frozen Toothfish, PR 56 (including application dated July 27, 2022, and postmark dated 

August 4, 2022). 

 On September 15, 2022, NMFS denied Southern Cross’ application for 

preapproval (“the NMFS denial”). Decision Mem., PR 20; NMFS Denial Letter at 1. 

NMFS commented that statements made in the Commission demonstrate that failure to 

establish such a catch limit “effectively closes the fishery.” NMFS Denial Letter at 2 

(footnote omitted). NMFS noted that a “conclusion that fishing could proceed in the 

absence of a measure would also be inconsistent with decades of CCAMLR practice.” 

Id. at 2-3. As such, Commerce did not issue a preapproval certificate because “the 

toothfish at issue was harvested in contravention of CCAMLR CM 31-01.” Id. at 4 

(citing 50 C.F.R. § 300.105(h)(2)). Commerce explained further that, without a catch 

limit in effect, issuance of the preapproval application would be contrary to 50 C.F.R. § 

300.105(d) and (h)(2): 

In the absence of any measure affirmatively establishing a catch limit and 

other fishery-specific requirements for the current season, fishing in 

Subarea 48.3 was not authorized under CCAMLR conservation measures. 

Therefore, as provided in the regulations, at 50 CFR § 300.105(d) and 

(h)(2), NMFS may not issue a pre-approval certificate. 

Denial of this application is consistent with the AMLRCA regulations and 

U.S. obligations under the CCAMLR Catch Documentation Scheme (CM 

10-05) which prohibits [sic] the importation of toothfish harvested in a 

manner inconsistent with CCAMLR conservation measures. 

Id. 
Court No. 22-00299 6 

II. Procedural history3

 On October 12, 2022, plaintiff filed its original complaint. Compl., ECF No. 6. On 

October 25, 2022, plaintiff corrected its complaint. Corrected Compl. The complaint as 

corrected challenges the denial by NMFS pursuant to 50 C.F.R. § 300.105 of the 

application by Southern Cross for preapproval to import toothfish harvested from 

Subarea 48.3. Id. ¶ 1. Plaintiff argues that the government’s denial of plaintiff’s 

preapproval application was “in error” and a violation of the APA because the toothfish 

were not “harvested or exported in violation of any CCAMLR conservation measure in 

force” or by an illegal, unreported and unregulated fishery or vessel. Id. ¶¶ 7-8. 

 On December 19, 2022, defendants moved to dismiss the complaint. Defs. Mot. 

Dismiss. In their motion to dismiss, defendants argue that the Court lacks subject 

matter jurisdiction over the action brought by plaintiff. Defs. Mot. Dismiss ¶ 1. On 

January 13, 2023, plaintiff opposed the motion. Pl. Resp. On January 27, 2023, 

defendants filed their reply. Defs.’ Reply in Supp. Mot. Dismiss (“Defs. Reply Br.”), ECF 

No. 28. 

3 On December 6, 2022, the court denied plaintiff’s motion to expedite briefing and 

consideration. Order Denying Mot., ECF No. 21. On June 20, 2023, plaintiff moved to 

supplement the administrative record. Pl.’s Mot. Suppl. Admin. R., ECF No. 37. On 

July 24, 2023, defendants opposed plaintiff’s motion to supplement the administrative 

record. Defs.’ Mot. Opp’n. Mot. Suppl. Admin. R., ECF No. 42. On October 5, 2023, 

the court denied in part plaintiff’s motion to supplement the administrative record and 

ordered defendants to explain their position concerning a specific category of 

documents. Order Mot. Supp. Admin. R., ECF No. 47. On November 6, 2023, 

defendants filed their explanation pursuant to the court’s order and adequately 

explained their position regarding the inconsistency identified by the court in its order. 

Defs.’ Exp. Order Mot. Supp. Admin. R., ECF No. 48. On November 14, 2023, plaintiff 

stated that “all pending matters relating to its motion to supplement the administrative 

record have been resolved.” Pl.’s Resp. Defs.’ Exp. Order Mot. Supp. Admin. R. at 1, 

ECF No. 49. 
Court No. 22-00299 7 

JURISDICTION AND STANDARD OF REVIEW 

 Plaintiff alleges that the Court has exclusive jurisdiction under 28 U.S.C. § 

1581(i)(C) and (D). Corrected Compl. ¶¶ 10-12. 28 U.S.C. § 1581(i) is the Court’s 

“residual” jurisdictional provision. Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 

1364, 1371 (Fed. Cir. 2002) (citing Conoco, Inc. v. United States Foreign-Trade Zones 

Bd., 18 F.3d 1581, 1584 n.4 (Fed. Cir. 1994)), and allows the Court to “take jurisdiction 

over designated causes of action founded on other provisions of law.” Norcal/Crosetti 

Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir. 1992) (citing Nat’l Corn 

Growers Ass'n v. Baker, 840 F.2d 1547, 1557 (Fed. Cir. 1988). Defendants state that 

this Court lacks subject matter jurisdiction because the denial of plaintiff’s preapproval 

application is not an embargo under 28 U.S.C. § 1581(i). Defs. Mot. Dismiss at 1. 

Additionally, defendants state that regardless of whether the instant action constitutes 

an embargo within the meaning contemplated in section 1581(i), CCAMLR cases fall 

within the exclusive jurisdiction of the district courts. Id.; see 16 U.S.C. § 2440. 

 Whether a court has subject matter jurisdiction to hear an action is a “threshold” 

inquiry. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). “Without 

jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare 

the law, and when it ceases to exist, the only function remaining to the court is that of 

announcing the fact and dismissing the cause.” Id. (citing Ex parte McCardle, 74 U.S. 

506, 514 (1869)); accord Salmon Spawning & Recovery Alliance v. United States, 33 

CIT 515, 519, 626 F. Supp. 2d 1277, 1281 (2009) (citing Ex parte McCardle, 74 U.S. at 

514). The party “seeking the exercise of jurisdiction . . . ha[s] the burden of establishing 
Court No. 22-00299 8 

that jurisdiction exists.” Bush v. United States, 717 F.3d 920, 924-25 (Fed. Cir. 2013) 

(citing Keener v. United States, 551 F.3d 1358, 1361 (Fed. Cir. 2009)). 

DISCUSSION 

I. Whether the denial of the preapproval application by NMFS constitutes an 

 embargo or other quantitative restriction 

 A. Legal framework 

The USCIT’s residual jurisdiction statute states in relevant part: 

(1) In addition to the jurisdiction conferred upon the Court of International 

Trade by subsections (a)–(h) of this section and subject to the exception set 

forth in subsection (j) of this section, the Court of International Trade shall 

have exclusive jurisdiction of any civil action commenced against the United 

States, its agencies, or its officers, that arises out of any law of the United 

States providing for— 

. . . 

(C) embargoes or other quantitative restrictions on the importation of 

merchandise for reasons other than the protection of the public health or 

safety; or 

(D) administration and enforcement with respect to the matters referred to 

in subparagraphs (A) through (C) of this paragraph and subsections (a)–(h) 

of this section. 

28 U.S.C. § 1581(i)(1)(C)-(D). “[T]he Court will not have jurisdiction under section 

1581(i)(3)4 in the absence of a law providing for an embargo.”5 Salmon Spawning, 33 

4 The version of the USCIT’s jurisdictional statute at 28 U.S.C. § 1581(i)(3) and (4) 

analyzed in Salmon Spawning corresponds in substance to the current 28 U.S.C. § 

1581(i)(1)(C) and (D). Compare 28 U.S.C. § 1581(i)(3) and (4) with current version at 

28 U.S.C. § 1581(i)(1)(C) and (D). 

 

5 The Supreme Court in K Mart ultimately held that there was no embargo in that 

case because, under the trademark law at issue (19 U.S.C. § 1526(a)), “[t]he private 

party, not the Government, by deciding whether and how to exercise its private right, 

determines the quantity of any particular product that can be imported.” K Mart Corp. v. 

Cartier, Inc.,ௗ86 176, 185 (1988). Therefore, the Government did not have 

“any control over the extent or the nature of § 526(a)’s prohibition.” Id. at 186. 
Court No. 22-00299 9 

CIT at 519, 626 F. Supp. 2d at 1282 (citing Friedman v. Kantor, 21 CIT 901, 904, 977 F. 

Supp. 1242, 1246 (1997)). 

The Supreme Court has stated that “the ordinary meaning of ‘embargo,’ and the 

meaning that Congress apparently adopted in the statutory language ‘embargoes or 

other quantitative restrictions,’ is a governmentally imposed quantitative restriction—of 

zero—on the importation of merchandise.” K Mart,ௗ86 at 185.6 The Supreme 

Court added: “[N]ot every governmental importation prohibition is an embargo.” Id. at 

187; Native Fed’n of Madre De Dios River & Tributaries v. Bozovich Timber Prods., 31 

CIT 585, 593 n.11, 491 F. Supp. 2d 1174, 1181 n.11 (2007) (citing K Mart, 485 U.S. at 

187); see Salmon Spawning, 33 CIT at 519, 626 F. Supp. 2d at 1282 (“That restriction 

must be more than a mere ‘condition[] of importation.’” (quoting K Mart, 485 U.S. at 

189)). The Supreme Court continued: “To hold otherwise would yield applications of the 

term ‘embargo’ that are unnatural, to say the least.” K Mart, 485 U.S. at 187.6 

 The Supreme Court made clear that it was drawing a distinction between 

governmental importation prohibitions and embargoes: “Congress likewise declined to 

grant the Court of International Trade exclusive jurisdiction over importation prohibitions 

that are not embargoes.” Id. at 189. The Supreme Court added, “Congress did not 

commit to the Court of International Trade’s exclusive jurisdiction every suit against the 

Government challenging customs-related laws and regulations.” Id. Finally, the 

Supreme Court clarified that drawing this distinction was for the purpose of clarifying the 

“division of jurisdiction between the Customs Court (now the Court of International 

6 See infra Section I.C for a discussion of these examples provided by the Supreme 

Court.
Court No. 22-00299 10 

Trade) and the district courts and to ‘ensure . . . uniformity in the judicial decisionmaking 

process.’” Id. at 188 (citing H.R. Rep. No. 96–1235, at 20 (1980), U.S. Code Cong. & 

Admin. News 1980, pp. 3729, 3731). That is the very issue presented to the court in the 

instant action. 

 The USCIT has noted that “by choosing the word ‘embargoes’ over the phrase 

‘importation prohibitions’ in Section 1581(i)(3), Congress created a circumscribed subclass of importation prohibitions that falls within the [USCIT’s] jurisdiction.” Native 

Fed’n, 31 CIT at 593, 491 F. Supp. 2d at 1181-82 (quoting K Mart, 485 U.S. at 189) 

(citing Earth Island Inst. v. Brown, 28 F.3d 76, 77 (9th Cir. 1994)). In addition, 

“Congress declined to grant [the USCIT] jurisdiction to review challenges to ‘conditions 

of importation’ as distinct from those involving embargoes.” Id. at 593, 491 F. Supp. 2d 

at 1182 (quoting K Mart, 485 U.S. at 189). 

 At issue in this case, AMLRCA provides inter alia that it is “unlawful . . . 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 Convention or in violation of any regulation promulgated under this chapter.” 

16 U.S.C. § 2435(3). In addition, Commerce regulations implementing AMLRCA 

specify the circumstances under which NFMS will issue a preapproval certificate for the 

importation of a shipment of toothfish: 

NMFS may issue a preapproval certificate for importation of a shipment of 

frozen Dissostichus species if the preapproval application form is complete 

and NMFS determines that the activity proposed by the applicant meets the 

requirements of the Act and that the resources were not harvested in 

violation of any CCAMLR conservation measure or in violation of any 

regulation in this subpart. No preapproval will be issued for Dissostichus 

species without verifiable documentation that the harvesting vessel 
Court No. 22-00299 11 

reported to C–VMS continuously and in real-time from port-to-port, 

regardless of where such Dissostichus species were harvested. 

50 C.F.R. § 300.105(d). The regulations also provide that “NMFS will not issue a 

preapproval certificate for any shipment of Dissostichus species . . . [d]etermined to 

have been harvested or transshipped in contravention of any CCAMLR Conservation 

Measure in force at the time of harvest or transshipment . . . .” Id. § 300.105(h)(2) 

(emphasis supplied). 

 B. Positions of the parties

 Before the court is defendants’ motion to dismiss. Accordingly, the court starts 

with defendants’ arguments.

Defendants argue that the CAMLR Convention, AMLRCA and the regulations 

under which NMFS denied Southern Cross’ preapproval application do not provide for 

an embargo. Defs. Mot. Dismiss at 6-7 (quoting 16 U.S.C. § 2435(3)); see Defs. Reply 

Br. at 3-4 (citing 16 U.S.C. § 2435; Salmon Spawning, 33 CIT at 519-21, 626 F. Supp. 

2d at 1282-83; 50 C.F.R. § 300.105(h)(2)). Specifically, defendants allege that the 

denial, “made pursuant to 50 C.F.R. § 300.105(h), is not an embargo, and does not 

‘arise[] out of any law of the United States providing for’ an embargo.” Defs. Mot. 

Dismiss at 5 (quoting 28 U.S.C. § 1581(i)(1)(C)). Defendants add: “In choosing to 

circumscribe a subclass of importation prohibitions that come within this Court’s 

jurisdiction, ‘Congress declined to grant this Court jurisdiction to review challenges to 

conditions of importation as distinct from those involving embargoes.’” Id. at 6 (quoting 
Court No. 22-00299 12 

Native Fed’n, 31 CIT at 592-93, 491 F. Supp. 2d at 1181-82 (citing K Mart, 485 U.S. at 

189)).7

 Defendants insist that NMFS “made a case-specific determination” based on 

AMLRCA and did not “prohibit trade outright.” Id. at 7; see Defs. Reply Br. at 3 (“K Mart 

Corp. makes evident that a condition of trade is not an embargo even if a case-specific 

application of that condition might lead to a situation where importation of a product is 

prevented.”).8 Defendants note that the regulation at issue “allow[s]” but does not 

require NMFS to issue a preapproval certificate. Defs. Reply Br. at 4 (citing NMFS 

Denial Letter). Defendants conclude that “NMFS followed its regulations and 

determined the conditions in which importation is lawful . . . .” Defs. Mot. Dismiss at 7; 

see Defs. Reply Br. at 6 (maintaining that the “regulation and statute at issue . . . do not 

prohibit trade outright”); see also Oral Arg. Tr. at 30:12-31:13 (arguing on behalf of 

defendants that “compliance with” conservation measures, such as those providing for a 

requirement as to fishing gear, represents a “condition on importation”). 

 As support, defendants note the common meaning of an embargo that the 

Supreme Court outlined in K Mart and highlight the Supreme Court’s provision of 

examples supporting the Supreme Court’s conclusion that “[n]ot every governmental 

7 See K Mart, 485 U.S. at 195 (Scalia, J., dissenting) (“The Court points out . . . that it 

may sometimes be difficult to distinguish a condition on importation from a prohibition 

on importation containing exceptions. That may be true, but since we are agreed that 

only prohibitions and not conditions come within the meaning of embargo, that 

ambiguity will have to be grappled with under the Court’s view of things no less than 

under mine.”). 

8 At oral argument, defendants noted: “By [p]laintiff’s theory, any time a 

countermeasure [sic] of any type is violated and therefore a certificate is denied, that 

would constitute an embargo, and that’s simply not a tenable outcome.” Oral Arg. Tr. at 

13:19-22.
Court No. 22-00299 13 

importation prohibition is an embargo.” Defs. Mot. Dismiss at 5-6 (quoting K Mart, 485 

U.S. at 185). Defendants add that “just as the preapproval certificate that was denied in 

this case could only be issued pursuant to certain requirements, the permits and 

licenses described in K Mart would have required compliance with certain substantive 

conditions or requirements.” Defs. Reply Br. at 2. Likewise, defendants note that the 

USCIT in Native Federation found that a requirement under the Endangered Species 

Act (“ESA”) for compliance with “certain permitting and documentation requirements” 

under the Convention on International Trade in Endangered Species of Wild Fauna and 

Flora (“CITES”) did not entail an embargo. Defs. Mot. Dismiss at 6 (citing Native Fed’n, 

31 CIT at 586, 593-94, 491 F. Supp. 2d at 1176, 1182); see Defs. Reply Br. at 5-6 

(comparing the “importation conditions” noted in Native Federation with those in 50 

C.F.R. § 300.105(d)). 

 In addition, defendants distinguish the sources that plaintiff raises to the court on 

the basis that they “all appear to expressly confer blanket authority to prohibit import of 

products.” Defs. Reply Br. at 2-3 (citing Pl. Resp. at 13-14). Further, defendants argue 

that the NMFS determination was not a “blanket ban on toothfish importation.” Id. at 

6. Defendants allege that the denial is not a quantitative restriction either because there 

is no “quota” or “limit on the quantity of a product that may be imported or exported.” Id. 

at 6-7 (citing Maple Leaf Fish Co. v. United States, 762 F.2d 86, 88 (Fed. Cir. 1985);

Best Foods, Inc. v. United States, 50 Cust. Ct. 94, 95, 218 F. Supp. 576, 577 (1963);

Bethlehem Steel Corp. v. United States, 28 CIT 154, 159 n.8, 316 F. Supp. 2d 1309, 

1314 n.8 (2004)). Defendants also argue that this Court does not have jurisdiction 

under 28 U.S.C. § 1581(i)(1)(D) if this Court lacks jurisdiction under § 1581(i)(1)(C) 
Court No. 22-00299 14 

because there is no embargo or quantitative restriction. Id. at 4-5 (citing Salmon 

Spawning, 33 CIT at 520-21, 626 F. Supp. 2d at 1283). 

 Plaintiff argues that this Court has jurisdiction pursuant to 28 U.S.C.

§ 1581(i)(1)(C) because the decision to deny the preapproval application is an embargo 

under K Mart or, alternatively, a “quantitative restriction.” Pl. Resp. at 1-2 (citing K Mart, 

485 U.S. at 185); see id. at 7-8 (arguing that 16 U.S.C. § 2435(3) is “a law providing for” 

such embargo or restriction).9 Plaintiff notes the language of the letter that Commerce 

sent to Southern Cross and an email from a NOAA employee — both of which 

reference prohibition — to support Southern Cross’ position. See id. at 12 (citing NMFS 

Denial Letter at 4; Email from K. Dawson, NOAA, to D. Thomas, Southern Cross 

Seafoods, LLC (July 28, 2022) (“Dawson Email”), PR 12). 

 Plaintiff asserts that the language of AMLRCA, 16 U.S.C. § 2435(3), and the 

language of 19 C.F.R. § 12.60 (1987) — which the Supreme Court noted in K Mart to be 

an example of an “embargo[] . . . to further interests relating to . . . ecology” — is 

fundamentally the same. Pl. Resp. Br. at 11-12; K Mart, 485 U.S. at 184. 19 C.F.R. § 

9 The AMLRCA regulations also provide in relevant part: 

 

(1) CCAMLR CDS document(s) must accompany all shipments 

of Dissostichus species as required in this section. 

(2) No shipment of Dissostichus species shall be released for entry into the 

United States unless accompanied by an accurate, complete, valid and 

validated CCAMLR CDS document. 

(3) Dissostichus species shall not be released for entry into the United 

States unless all of the applicable requirements of the CCAMLR 

Conservation Measures and U.S. regulations have been met. 

 

50 C.F.R. § 300.106(a).
Court No. 22-00299 15 

12.60 prohibits the importation of most sea otter skins taken contrary to the Provisional 

Fur Seal Agreement of 1942 between the United States and Canada: 

The transportation, importation, sale, or possession of the skins of fur seals 

or sea otters is prohibited if such skins were taken contrary to the provisions 

of section 2 of the act of February 26, 1944 (58 Stat. 100-104) or, the case 

of such skins taken under the authority of the act or any fur-seal agreement, 

if the skins are not officially marked and certified as required by section 2 of 

the act. Section 16 makes the act inapplicable to skins taken for scientific 

purposes under a special permit. 

19 C.F.R. § 12.60 (1987).10 

 Plaintiff urges the court to “apply the same analysis” as in three decisions under 

which federal courts applied K Mart and found that there was an embargo: Humane 

Soc’y of the United States v. Brown, 19 CIT 1104, 1110, 1112, 901 F. Supp. 338, 344, 

10 Section 2 of the Provisional Fur Seal Agreement of 1942 between the United States 

and Canada provided that: 

It shall be unlawful, except as hereinafter provided, for any citizen or 

national of the United States, or person owing duty of obedience to the laws 

or treaties of the United States, or any vessel of the United States, or person 

belonging to or on such vessel, to engage in pelagic sealing or sea otter 

hunting in or on the waters of the North Pacific Ocean; or for any person or 

vessel to engage in sealing; or for any person or vessel to use any port or 

harbor or other place subject to the jurisdiction of the United States for any 

purpose connected in any way with the operation of pelagic sealing, sea 

otter hunting, or sealing; or for any person to transport, import, offer for sale, 

or have in possession at any port, place, or on any vessel subject to 

the jurisdiction of the United States, raw, dressed, or dyed skins of sea 

otters taken contrary to the provisions of this section or, where taken 

pursuant to section 3 of this Act, not officially marked and certified as having 

been so taken, or raw, dressed, or dyed skins of fur seals taken in or on the 

waters of the North Pacific Ocean or on lands subject to the jurisdiction of 

the United States, except seal skins which have been taken under the 

authority of this Act or under the authority of the respective parties to 

any fur-seal agreement and which have been officially marked and certified 

as having been so taken. 

Provisional Fur Seal Agreement of 1942, Canada-United States., Feb. 26, 1944, ch. 65, 

§ 2, 58 Stat. 100, 101 (repealed 1966). 
Court No. 22-00299 16 

346 (1995); Earth Island Inst. v. Christopher, 6 F.3d 648, 649 n.1, 651-52 (9th Cir. 

1993); and Int’l Labor Rights Fund v. Bush, 357 F. Supp. 2d 204, 205, 208-10 (D.D.C. 

2004). Pl. Resp. at 13-14; see also Oral Arg. Tr. at 16:10-17:10 (noting on behalf of 

plaintiff similarities between the statutes at issue in those cases and the language at 

issue here). In addition, plaintiff distinguishes the Native Federation decision from the 

instant action. Pl. Resp. at 14-15. Specifically, plaintiff argues that the “regulations at 

issue in Native Federation merely regulated trade”— but did not bar it entirely — “based 

on the presentation of a valid export permit.” Id. at 15 (emphasis supplied). In contrast, 

plaintiff states that “NMFS is not regulating trade in toothfish; NMFS is barring trade in 

toothfish from Subarea 48.3 entirely.” Id.; see Oral Arg. Tr. at 31:16-20 (explaining on 

behalf of plaintiff that the provisions at issue in Native Federation “contemplated” 

trade). Plaintiff adds: “This is not a case where NMFS is barring Southern Cross’s 

imports because those imports were unaccompanied by the required documents (i.e., 

the [Dissostichus Catch Document] and [Dissostichus Export Document]).” Pl. Resp. at 

16. 

 Plaintiff alleges further that the Court has jurisdiction pursuant to 

28 U.S.C. § 1581(i)(1)(D) based on the “administration and enforcement” of 

16 U.S.C. § 2435(3). Id. at 8; see Oral Arg. Tr. at 17:15-21 (arguing on behalf of plaintiff 

that an “embargo is always enforced at the ports on an entry-by-entry basis”). 

 C. Analysis

 To determine whether the Court has jurisdiction over the instant action, the court 

considers: (1) whether the denial constitutes an embargo or other quantitative restriction 

on the importation of merchandise; (2) whether AMLRCA and its implementing 
Court No. 22-00299 17 

regulations provide for such an embargo or other quantitative restriction; and (3) 

whether AMLRCA and its implementing regulations provide for the administration and 

enforcement of such an embargo or other quantitative restriction. For the reasons 

discussed below, the court concludes that (1) the denial pursuant to AMLRCA 

regulations, 50 C.F.R. § 300.105(d) and (h)(2), by NMFS of Southern Cross’ 

preapproval application does not constitute an embargo or other quantitative restriction, 

and (2) neither AMLRCA, 16 U.S.C. § 2435(3), nor its regulations, 

50 C.F.R. § 300.105(d) and (h)(2), provide for an embargo or other quantitative 

restriction, or the administration and enforcement thereof. 

1. Whether NMFS’ denial of plaintiff’s preapproval application 

constitutes an embargo or other quantitative restriction 

 Plaintiff’s action arises out of a challenge to the denial by NMFS of plaintiff’s 

preapproval application. Corrected Compl. ¶ 1 (“This action concerns Defendants’ 

unlawful denial of Southern Cross’s application for preapproval to import [toothfish] 

. . . .”). Defendants argue that the Court does not have jurisdiction over the 

denial. Defs. Mot. Dismiss at 5 (quoting 28 U.S.C. § 1581(i)(1)(C)). Plaintiff argues that 

NMFS, by its denial of plaintiff’s application, is “barring trade in toothfish from Subarea 

48.3 entirely” such that the denial constitutes an embargo — “a governmentally imposed 

quantitative restriction—of zero”, K Mart, 485 U.S. at 185 — or other quantitative 

restriction within the meaning of the statute. Pl. Resp. at 15; see Pl. Resp. at 8 (arguing 

that “NMFS’s action is an ‘embargo’” or else that “it is certainly a ‘quantitative restriction 

on the importation of merchandise’”). The court is unpersuaded. 

 NMFS is not authorized under AMLRCA or its implementing regulations to 

institute a blanket ban on toothfish through the denial of an application for a preapproval 
Court No. 22-00299 18 

certificate. See generally 16 U.S.C. §§ 2431, 2435; 50 C.F.R. § 300.105. Rather, 

NMFS “may issue a preapproval certificate” if certain conditions are met, including that 

NMFS determines that the instant “resources were not harvested in violation of any 

CCAMLR conservation measure.” 50 C.F.R. § 300.105(d) (emphasis supplied). 

Similarly, NMFS “will not issue a preapproval certificate” for a toothfish harvest or 

transshipment determined to be “in contravention of” any conservation measure. 

50 C.F.R. § 300.105(h)(2). Moreover, “the proper focus of an analysis of jurisdiction 

under 28 U.S.C. § 1581(i) is the law upon which the plaintiffs’ action is based, and 

whether that law (rather than the specific claims set forth by the plaintiff) provides for an 

embargo.” Int’l Labor Rights Fund, 357 F. Supp. 2d at 209 n.3. The court addresses 

the statutes and regulations governing the instant action infra Section I.C.2. 

 The NMFS denial before the court pertained to one shipment of toothfish. As 

such, the denial does not constitute an embargo or other quantitative restriction. 

The NMFS denial of plaintiff’s preapproval certificate was specific to plaintiff’s 

application: “[NMFS] is denying issuance of a pre-approval certificate for this shipment 

of toothfish for the reasons outlined below.” NMFS Denial Letter at 1 (emphasis 

supplied). The NMFS denial also stated the foundational legal predicate for the 

application of AMLRCA by NMFS, namely that “fishing in Subarea 48.3 was not 

authorized under CCAMLR conservation measures” and that “the toothfish at issue was 

[sic] harvested in contravention of CCAMLR CM 31-01.” NMFS Denial Letter at 4; see 

NMFS Denial Letter at 3-4 (quoting 50 C.F.R. § 300.105(d)). As such, NMFS 

determined not to issue a preapproval certificate to Southern Cross because NMFS 

determined that the specific toothfish shipment at issue was “harvested or transshipped 
Court No. 22-00299 19 

in contravention of a[] CCAMLR Conservation Measure in force at the time of harvest or 

transshipment.” See NMFS Denial Letter at 411 (quoting 50 C.F.R. § 300.105(h)(2)). 

Similarly, in a different context, Southern Cross inquired of NMFS whether 

Southern Cross could import fish from another part of the South Georgia waters. NMFS 

responded in a manner consistent with its explanation in the letter denying the 

preapproval application in the instant case: “[a]ny final determination would, as always, 

be made upon submission of an application for preapproval to import a specific 

shipment.” Dawson Email.12 

 Accordingly, the NMFS denial is not an embargo or other quantitative restriction 

within the meaning of 28 U.S.C. § 1581(i). 

11 It is notable that the language of subsection (h)(2), applied by NFMS in this case, is 

distinct even from the language of subsection (h)(1) of the same section of the same 

statute. Compare 50 C.F.R. § 300.105(h)(1) with 50 C.F.R. § 300.105(h)(1). 

Subsection (h)(1) provides that NMFS will not issue a preapproval certificate for any

shipment of Dissostichus species . . . [i]dentified as originating from Statistical Area 51 

or Statistical Area 57 in the eastern and western Indian Ocean outside and north of 

the Convention Area”, 50 C.F.R. § 300.105(h)(1) (emphasis supplied) whereas 

subsection (h)(2) expressly requires NMFS to tie denial of a preapproval application to 

only those shipments “”[d]etermined to have been harvested or transshipped in 

contravention of any CCAMLR Conservation Measure in force at the time of harvest or 

transshipment.” Again, subsection (h)(2) expressly contemplates and provides for 

import of shipments from the identified region subject only to the conditions of meeting 

the terms of the conservation measure whereas subsection (h)(1) applies a restriction 

not tied to the terms of a conservation measure. 

12 Moreover, plaintiff’s contention that NMFS “will prohibit all toothfish imported from 

Subarea 48.3” is conjecture. Pl. Resp. at 15 (emphasis omitted). The AMLRCA 

regulations provide for a process by which the United States can determine not to 

accept a conservation measure. 16 U.S.C. § 2434(a). The U.S. government could 

change its position with respect to the requirement of adhering to conservation 

measures for the approval or preapproval of applications to import toothfish from 

Subarea 48.3.
Court No. 22-00299 20 

2. Whether AMLRCA and its implementing regulations provide 

for embargoes or other quantitative restrictions 

i. Embargoes 

 In light of plaintiff’s request for declaratory judgment applicable to future 

preapproval applications, the court turns to whether the applicable statute and 

regulations provide for an embargo. Corrected Compl. ¶¶ 9, 12, 51 (citing 

28 U.S.C. § 2201(a), which authorizes “any court of the United States . . . [to] declare 

the rights and other legal relations of any interested party seeking such declaration, 

whether or not further relief is or could be sought”). Plaintiff argues that the NMFS 

denial of plaintiff’s preapproval application amounts to an embargo based on what 

plaintiff argues is the provision for an embargo under AMLRCA, 16 U.S.C. § 2435(3). 

Pl. Resp. at 1-2. 

The court examines first the applicable statutes and regulations in the instant 

action, then considers the case law in which this Court and other courts have concluded 

that the statutes before them envisaged embargoes and consequently fell within the 

jurisdiction of this Court. The court concludes that AMLRCA and its implementing 

regulations provide “conditions of importation” and the potential for other types of 

“governmental importation prohibition[s]” that do not constitute embargoes. See K Mart, 

485 U.S. at 187. 

 AMLRCA, its implementing regulations and the CAMLR Convention all 

“anticipate[] trade in” toothfish. Native Fed’n, 31 CIT at 595, 419 F. Supp. 2d at 1183. 

Under AMLRCA, “[i]t is unlawful . . . 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 Convention . . . .” 16 U.S.C. § 2435(3). 
Court No. 22-00299 21 

See also 50 C.F.R. § 300.114(d). AMLRCA regulations by their terms “regulate[] . . . 

[t]he import . . . into the United States of any Antarctic marine living resource.” 

50 C.F.R. § 300.100(b)(2) (emphasis supplied); see 50 C.F.R. § 300.104(a)(1) (“A 

person may import . . . AMLR into the United States only under a NMFS-issued 

International Fisheries Trade Permit (IFTP).” (emphasis supplied)). Under the AMLRCA 

regulations, imports of toothfish must have a preapproval certificate, which NMFS may 

issue. See 50 C.F.R. § 300.105(d); see also 50 C.F.R. § 300.104(a)(2) (providing that 

frozen toothfish shipments “must also be accompanied by . . . a preapproval 

certificate”); 50 C.F.R. § 300.106(e)(1) (defining toothfish import requirements). For 

NMFS to issue such a preapproval certificate, NMFS must be able to determine that a 

condition has been met, namely that the toothfish were not “harvested in violation of any 

CCAMLR conservation measure .” Id. § 300.105(d); see id. § 300.105(h)(2). 

 Under the CAMLR Convention, as noted supra Section I, “‘conservation’ includes 

rational use.” CAMLR Convention, art. II.2 (emphasis supplied); see CAMLR 

Convention art. IX.2(c) (“The conservation measures . . . include . . . the designation of 

the quantity which may be harvested from the populations of regions and sub-regions”). 

In addition, Congress found that “the Convention incorporates an innovative ecosystem 

approach to the management of Antarctic marine living resources . . . .” 

16 U.S.C. § 2431(a)(2) (emphasis supplied). Further, when certain conditions are met, 

NMFS “may issue a preapproval certificate for importation of a shipment of frozen 

[toothfish].” 50 C.F.R. § 300.105(d) (emphasis supplied). As such, to the extent that 

the provisions amount to a “governmental importation prohibition,” they are nonetheless 

not embargoes. K Mart, 485 U.S. at 187. Instead, the regulation delineates the 
Court No. 22-00299 22 

preapproval framework for the importation of toothfish that is harvested in compliance 

with CCAMLR conservation measures and that meets certain other prerequisites. See 

50 C.F.R. § 300.105(d). 

 In K Mart, the Supreme Court addressed two instances of governmental 

importation prohibitions that did not constitute embargoes: (1) a regulation requiring a 

permit and appropriate “tagging” for milk and cream importation, 485 U.S. at 187 

(quoting 19 C.F.R. § 12.7(a)-(b) (1987)13); and (2) a regulation requiring inspection for 

meat product importation, id. (quoting 19 C.F.R. § 12.8 (1987)14). The Supreme Court 

reasoned that “[t]o hold [that every governmental importation prohibition is an embargo] 

would yield applications of the term ‘embargo’ that are unnatural, to say the least.” Id. 

The Supreme Court illustrated such an application by explaining that the “prohibitory 

nature” of the milk and cream regulations “would convert licensing and tagging 

requirements into embargoes on unlicensed or improperly tagged dairy products.” Id. 

Similarly, the Supreme Court noted that the meat product inspection requirement “would 

magically become an embargo of uninspected (but not necessarily tainted) meat.” Id.

 AMLRCA establishes as a condition of importation that the shipment be 

harvested in compliance with CCAMLR conservation measures. 16 U.S.C. § 2435(3). 

AMLRCA provides the authority for NMFS to deny a pre-approval application on the 

13 The regulation provides in relevant part that “the importation into the United States of 

milk and cream is prohibited unless the person by whom such milk or cream is shipped 

or transported into the United States holds a valid permit from the Department of Health 

and Human Services.” 19 C.F.R. § 12.7(a) (1987). In addition, the regulation outlines 

tagging requirements and adds: “Customs officers shall not permit the importation of 

any milk or cream that is not tagged in accordance with such regulations.” Id. § 12.7(b). 

14 The regulation provides in relevant part that “meat . . . products shall not be released 

from Customs custody prior to inspection . . . .” 19 C.F.R. § 12.8(a) (1987). 
Court No. 22-00299 23 

grounds that this condition has not been met. 16 U.S.C. § 2436(b) (providing the 

authority to the Secretary of Commerce to promulgate regulations to implement 

conservation measures); 50 C.F.R. § 300.105 (implementing regulation of the statute). 

This denial may constitute a prohibition on importation of the imports in question. 

50 C.F.R. § 300.105(h)(2). As the Supreme Court found in K Mart, such a prohibition 

may not “magically” become an embargo of imports that do not meet the conditions of 

AMLRCA. In sum, the conditional regulatory language of AMLR parallels that of the 

statute and regulations for milk and meat importation, which the Supreme Court 

previously discussed did not constitute embargoes within the jurisdiction of the USCIT. 

See K Mart, 485 U.S. at 187. 

 That conclusion is further supported by the USCIT’s holding in Native Federation. 

31 CIT 585, 491 F. Supp. 2d 1174. Similar to AMLRCA, the statute at issue in Native 

Federation stated that it was “unlawful . . . to engage in any trade in any specimens 

contrary to the provisions of the Convention.” 16 U.S.C. § 1538(c)(1). In addition, 

under the ESA regulations, imports of bigleaf mahogany are required to be 

accompanied by an export permit. Native Fed’n, 31 CIT at 594, 491 F. Supp. 2d at 

1182 (citing 50 C.F.R. § 23.12(a)(2)(i)15). The USCIT in Native Federation looked to the 

language of CITES and the ESA to guide the Court’s reasoning that the regulation — 

including, in certain instances, a prohibition — of mahogany imports did not constitute 

an embargo: 

15 50 C.F.R. part 23 was revised and “reorganized the sections and added provisions 

from certain applicable resolutions and decisions adopted by the CITES Conference of 

the Parties (CoP) at its second through thirteenth meetings (CoP2 - CoP13).” 72 Fed. 

Reg. 48,402-01. The 2007 version of the regulation reflects a later version of the Final 

Rule in which 50 C.F.R. § 23.11-12 are condensed. 
Court No. 22-00299 24 

By entering into [CITES], the United States did not agree to end trade in 

CITES-listed species, nor did it elect to do so by enacting Section 9(c) to 

implement the Convention. On the contrary, the aim of CITES and the 

provisions of the ESA that implement it is to permit trade in certain species 

in a controlled, sustainable manner. 

Id. at 597-98, 491 F. Supp. 2d at 1185 (emphasis supplied) (citing CITES Proclamation 

of the Contracting States, 27 U.S.T. at 1090). The Native Federation court concluded 

that the section of the ESA applicable to bigleaf mahogany did not “forbid” or 

“completely ban” trade but rather “regulate[s]” such trade through permit requirements. 

Id. at 593-94, 491 F. Supp. 2d at 1182-83. For the category of species under which 

bigleaf mahogany falls, the ESA and CITES, “while restricting trade, do not restrict the 

quantity of imports to zero.” Id. at 598, 491 F. Supp. 2d at 1185-86 (citing K Mart , 485 

U.S. at 185).16 

The AMLRCA regulations spell out specific requirements for preapproval 

certification, much like the CITES and ESA regulations at issue in Native Federation set 

out requirements for permitting. Compare 50 C.F.R. § 300.105(d) (requiring that the 

“preapproval application form is complete and NMFS determines that the activity 

proposed by the applicant meets the requirements of the Act and that the resources 

16 To reach this conclusion, the court highlighted several aspects of the ESA and CITES 

statutes and their similarity to aspects in the Supreme Court’s decision in K Mart: (1) the 

flexibility under the CITES language for parties to “adopt stricter measures,” weighing 

against a ban; (2) the similarity between the regulations noted in K Mart that provide for 

“conditions of importation” — milk permits and meat inspections — to CITES/ESA 

regulations; (3) that the CITES/ESA regulation “anticipates trade in those species, 

[which include bigleaf mahogany,] on the condition that ‘the requirements in ... [50 

C.F.R. § 23.12(a)(2)(i)] are met,’ i.e., the presentation of a valid foreign export permit;” 

and (4) the “qualitatively different” nature of the other examples of embargoes because 

they do not have a “simple permitting scheme” but instead have “stringent statutory 

requirements” and “prohibit trade outright albeit with limited exceptions.” Id. at 595-96, 

491 F. Supp. 2d at 1183-85 (quoting 50 C.F.R. § 23.11(a)).
Court No. 22-00299 25 

were not harvested in violation of any CCAMLR conservation measure or in violation of 

any regulation”) with 50 C.F.R. § 23.12(a)(2)(i) (requiring “a valid foreign export permit 

issued by the country of origin”). 

 Plaintiff raises four examples to support its argument that AMLRCA and its 

regulations, as applied by NMFS, provide for an embargo. Pl. Resp. at 12-14 (citing 

19 C.F.R. § 12.60 (1987); Humane Soc’y, 19 CIT 1104, 901 F. Supp. 338; Earth Island, 

6 F.3d 648; Int’l Labor Rights Fund, 357 F. Supp. 2d. 204). 

AMLRCA and its implementing regulations are distinct from the examples of 

embargoes that plaintiff provides. See 19 C.F.R. § 12.60 (1987); K Mart, 485 U.S. at 

184 (describing 19 C.F.R. § 12.60 (1987) as an embargo); Humane Soc’y, 19 CIT at 

1112-1113, 901 F. Supp. at 346 (explaining that 16 U.S.C. § 1826a, which “prohibit[s] 

the importation” of fishing-related products, confers jurisdiction to this Court under the 

provision for residual jurisdiction because § 1826a lists embargo language); Earth 

Island, 6 F.3d at 652 (concluding that the 16 U.S.C. § 1537(b) implemented a ban on 

importation of shrimp products and “prohibit[ed]” shrimp imports that did not comply with 

regulations protecting sea turtles and holding that those terms corresponded to the 

embargo language conferring jurisdiction on the USCIT); Int’l Labor Rights, 357 F. 

Supp. 2d at 207 (holding that the language of 19 U.S.C. § 1307, stating that goods 

produced by forced labor and “importation thereof is hereby prohibited,” constituted 

embargo language conferring jurisdiction on this Court) (emphasis supplied). The court 

analyzes each in turn. 

 The first example that plaintiff references is 19 C.F.R. § 12.60 (1987), which the 

Supreme Court in K Mart referred to as providing for an embargo. 485 U.S. at 184; see 
Court No. 22-00299 26 

Pl. Resp. at 12. The regulation in question prohibits the importation of “skins of fur 

seals or sea otters . . . if such skins were taken contrary to the provisions of section 2 of 

the [Provisional Fur Seal Agreement of 1942 between the United States of America and 

Canada].” 19 C.F.R. § 12.60 (1987). The regulation provides a limited exception for the 

import of sea otter skins and fur seals by “Indians, Aleuts, or other aborigines dwelling 

on the American coasts of the waters of the North Pacific Ocean.” Provisional Fur Seal 

Agreement of 1942 (repealed 1944), ch. 65, § 3.17 

 The CAMLR Convention, AMLRCA and its implementing regulations expressly 

envision and provide that harvesting of Antarctic marine resources will and should 

occur. See CAMLR Convention art. II.2 (noting that “‘conservation’ includes rational 

use”), art. II.3 (“Any harvesting and associated activities in the area to which this 

Convention applies shall be conducted in accordance with the provisions of this 

Convention and with the following principles of conservation . . . .”), art. IX.2(c) (noting 

“the designation of the quantity [of species] which may be harvested”). AMLRCA 

implements the CAMLR Convention, 16 U.S.C. § 2431(b), and the AMLRCA regulations 

provide a framework under which importers can attain preapproval to import harvested 

17 The Provisional Fur Seal Agreement of 1942 prohibited importing illegally taken skins, 

and forfeiture thereof: 

The importation or bringing into territory of the United States . . . of skins of 

fur seals or sea otters taken in the waters mentioned in section 632 of this 

title . . . except such as have been taken under the authority of the 

respective parties to the convention between the Governments of the United 

States, Great Britain, Japan, and Russia . . . to which the breeding grounds 

of such herds belong, and have been officially marked and certified as 

having been so taken, is hereby prohibited . . . . 

Provisional Fur Agreement, 16 U.S.C. § 635 (repealed 1944). ch. 65, §18, 58 

Stat. 104. 
Court No. 22-00299 27 

Antarctic marine living resources, including frozen toothfish, if certain conditions are 

met. See 50 C.F.R. §§ 300.100(b)(2), 300.105. In sum, the Provisional Fur Seal 

Agreement of 1942 as addressed by the Supreme Court in K Mart is not apposite to the 

assessment of the CAMLR Convention, CCAMLR CMs and AMLRCA in the instant 

case. K Mart , 485 U.S. at 184. 

Plaintiff next raises this Court’s holding in Humane Society that the High Seas 

Driftnet Fisheries Enforcement Act (“HSDFEA”) was within the USCIT’s exclusive 

jurisdiction. Pl. Resp. at 13; see Humane Soc’y, 19 CIT at 1104, 1121, 901 F. Supp. at 

340, 352. The Court in Humane Society exercised jurisdiction over plaintiff’s action, 

concluding that the language of the HSDFEA explicitly provided authority for the 

Secretary of the Treasury at the direction of the president to implement a prohibition on 

imports of fish and fish products from nations that do not comply with the requirements 

of the HSDFEA. Pl. Resp. at 13; see Humane Soc’y, 19 CIT at 1104, 1112-1113, 901 

F. Supp at 338, 340, 346, 352. Plaintiffs there alleged that defendants — the Secretary

of Commerce and the Secretary of State — had failed to exercise their “responsibilities” 

under the HSDFEA to identify any country (in that case, Italy) that engaged in the 

proscribed fishing. Id. at 1105-06, 1111, 901 F. Supp. at 341, 345 (citing 

16 U.S.C. § 1826a(b)(1)(A)-(B)). Upon such identification, the HSFDEA prohibited fish 

imports from that nation. Humane Soc’y, 19 CIT at 1110, 901 F. Supp. at 344 (citing 

16 U.S.C. § 1826a(b)(3)18 (delineating the procedure to instate a “[p]rohibition on 

18 Specifically, 16 U.S.C. § 1826a authorizes the President to direct the Secretary of the 

Treasury to prohibit importation into the United States of fish and fish products and sport 

fishing equipment: 
Court No. 22-00299 28 

imports of fish and fish products and sport fishing equipment”). The Humane Society 

court relied on Earth Island to conclude that the USCIT had exclusive jurisdiction over 

that action. Id. at 1112-13, 901 F. Supp at 346. 

 AMLRCA again stands in contrast to the statute — HSFDEA — before the court 

in Humane Society. The HSFDEA establishes a procedure to implement a blanket 

prohibition. AMLRCA, by contrast, does not do so; rather, it sets out the requirements 

necessary to import toothfish in compliance with the conservation measures adopted. 

AMLRCA prohibits the import of products conditionally and only if they are harvested in 

violation of regulations promulgated under this chapter. 16 U.S.C. § 2435. This 

(3) Prohibition on imports of fish and fish products and sport fishing 

equipment 

(A) Prohibition 

The President— 

(i) upon receipt of notification of the identification of a 

nation under paragraph (1)(A); or 

(ii) if the consultations with the government of a nation 

under paragraph (2) are not satisfactorily concluded 

within ninety days, shall direct the Secretary of the 

Treasury to prohibit the importation into the United 

States of fish and fish products and sport fishing 

equipment (as that term is defined in section 4162 of 

Title 26) from that nation. 

(B) Implementation of prohibition 

With respect to an import prohibition directed under 

subparagraph (A), the Secretary of the Treasury shall 

implement such prohibition not later than the date that 

is forty-five days after the date on which the Secretary 

has received the direction from the President. 

(C) Public notice of prohibition 

Before the effective date of any import prohibition 

under this paragraph, the Secretary of the Treasury 

shall provide public notice of the impending prohibition. 

16 U.S.C. § 1826a(b)(3) (1995). 
Court No. 22-00299 29 

approach is comparable to that involving the conditions on imports described in Native 

Federation, supra Section I.C.2.i. Specifically, 50 C.F.R. § 300.105 requires that 

importers of toothfish provide a “complete” preapproval application and that NMFS then 

“determine[] that the activity proposed by the applicant meets the requirements of the 

Act and that the resources were not harvested in violation of any CCAMLR conservation 

measure or in violation of any regulation in this subpart.” 50 C.F.R. § 300.105(d). The 

language of the regulations is formulated in a way that enables the importation of 

toothfish so long as the conditions of the statute and regulations are met. The CMs of 

the CAMLR Convention in turn provide a framework and conditions such that importers 

that wish to import fish from the area may seek to do so. See 16 U.S.C. § 2435(3). For 

the foregoing reasons, the statute and holding in Humane Society are inapposite to the 

statute and regulations at issue in the instant action. 

 The third case that plaintiff presents to the court is the decision of the U.S. Court 

of Appeals for the Ninth Circuit (“Ninth Circuit”) in Earth Island. Pl. Resp. at 13-14 

(citing Earth Island, 6 F.3d at 649 n.1, 651-52). There, the Ninth Circuit held that the 

statute at issue, which banned shrimp imports from countries that did not protect sea 

turtles from commercial nets, was an embargo such that the USCIT had exclusive 

jurisdiction. Earth Island, 6 F.3d at 649, 651 (citing The Departments of Commerce, 

Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990, 

Pub.L. 101–162, Title VI, § 609, 103 Stat. 1037 (1989) (codified at 16 U.S.C. § 1537 

note (“Section 609”) (2000)).19 Section 609 prohibited shrimp imports harvested with 

19 Section 609(b) provides for a prohibition on shrimp imports with exceptions — 

exceptions that must be recognized and certified by the President: 
Court No. 22-00299 30 

technology harmful to sea turtles unless the president otherwise certified to Congress 

that a country had taken steps to protect sea turtles. Id. at 649 n.1, 650. The Ninth 

Circuit focused on two subsections of the statute: 

Subsection (a) of 16 U.S.C. § 1537 requires the Secretary of State to initiate 

negotiations with foreign countries to develop treaties to protect sea turtles, 

and to report to Congress about such negotiations. Subsection (b) requires 

limitations on the importation of shrimp from nations that have not moved to 

protect sea turtles. If the President certifies that a country has undertaken 

measures to protect turtles, shrimp imports from that country are not 

banned. 

Id. at 650 (citing Section 609(a)-(b)). The Ninth Circuit drew a parallel to the embargo 

on sea otter and fur seal skins identified in K Mart to hold that the “prohibitions on 

(b)(1) IN GENERAL.—The importation of shrimp or products from shrimp 

which have been harvested with commercial fishing technology which may 

affect adversely such species of sea turtles shall be prohibited not later than 

May 1, 1991, except as provided in paragraph (2). 

(2) CERTIFICATION PROCEDURE.—The ban on importation of shrimp or 

products from shrimp pursuant to paragraph (1) shall not apply if the 

President shall determine and certify to the Congress not later than May 1, 

1991, and annually thereafter that— 

(A) the government of the harvesting nation has provided documentary 

evidence of the adoption of a regulatory program governing the incidental 

taking of such sea turtles in the course of such harvesting that is 

comparable to that of the United States; and 

(B) the average rate of that incidental taking by the vessels of the harvesting 

nation is comparable to the average rate of incidental taking of sea turtles 

by United States vessels in the course of such harvesting; or 

(C) the particular fishing environment of the harvesting nation does not pose 

a threat of the incidental taking of such sea turtles in the course of such 

harvesting. 

Section 609(b). 
Court No. 22-00299 31 

shrimp importation for environmental protection” were, similarly, within the USCIT’s 

jurisdiction. Id. at 652.20

 Section 609 is distinct in at least two respects from AMLRCA. First, Section 609 

authorizes the executive to impose a nation-wide ban — an embargo — on importation 

of shrimp or products from shrimp from the specific country. Section 609(b). As the 

Ninth Circuit found in Earth Island, the Section 609 ban on shrimp importation exists de 

facto unless the president certifies affirmatively that a nation is in compliance with the 

20 Following the Ninth Circuit’s decision, plaintiff refiled at the USCIT and several USCIT 

decisions ensued. See Turtle Island Restoration Network v. Evans, 284 F.3d 1282 

(Fed. Cir. 2002); see also Turtle Island Restoration Network v. Mallett, 24 CIT 627, 110 

F. Supp. 2d 1005 (2000). In one such decision, the USCIT explained that “the catch of 

vessels equipped with TEDs from nations without such comparable foundation [as in the 

U.S. program to require the use of TEDs] continues subject to embargo”: 

This court was constrained to conclude in slip op. 99–32 yet again that 

paragraph (1) of section 609(b) is specifically contingent upon the 

certification procedure established by section 609(b)(2), which offers the 

only congressionally-approved breaches of the embargo, either via 

subparagraphs (A) and (B) or through (C). Paragraphs (b)(1) and (b)(2) 

are pari materia; they cannot be read independently, or out of the context 

adopted by Congress, including section 609(a), to slow or stanch the 

extinction of species of sea turtles. And so long as the U.S. government 

reports that the “foundation of the U.S. program” continues, with “limited 

exceptions”, to be that “all other commercial shrimp trawl vessels 

operating in waters subject to U.S. jurisdiction in which there is a likelihood 

of intercepting sea turtles must use TEDs at all times”, the catch of 

vessels equipped with TEDs from nations without such comparable 

foundation continues subject to embargo. 

Turtle Island Restoration Network v. Mallett, 24 CIT at 631, 110 F. Supp. 2d at 1009. 

The Federal Circuit noted later that “the Ninth Circuit ruled that because 28 U.S.C. § 

1581(i) vests exclusive jurisdiction over embargoes and other trade restrictions in the 

USCIT, an action to compel enforcement of the import prohibitions of section 609(b) 

could lie only with [the USCIT].” Turtle Island Restoration Network v. Evans, 284 F.3d 

1282, 1287 (Fed. Cir. 2002) (citing Earth Island, 6 F.3d at 652). Ultimately, the Federal 

Circuit reversed in part the USCIT’s decision in Turtle Island Restoration Network v. 

Mallett for reasons unrelated to jurisdiction. See Turtle Island Restoration Network v. 

Evans, 284 F.3d 1282, 1297. 
Court No. 22-00299 32 

requirements of the statute. 6 F.3d at 650. Section 609 itself provides for the 

establishment of an embargo; the statute subsequently provides exceptions to the “ban 

on importation of shrimp” if the President certifies that the governments of harvesting 

nations meet listed requirements. Section 609(b). By contrast, subsection (h)(2) of the 

AMLRCA regulations does not create a nation-wide or other ban on imports; rather, 

subsection (h)(2) expressly permits NMFS to preapprove certificates of importation of 

Antarctic marine living resources so long as they are not harvested in violation of CMs. 

See 50 C.F.R. § 300.105(h)(2). As noted, subsection (h)(2) does not preliminarily 

impose an embargo. Id.; 16 U.S.C. § 2435(3). 

The second key distinction is that Section 609 and its implementing regulations 

establish a mechanism for the creation, application and administration of an embargo, 

whereas neither AMLRCA nor its implementing regulations do the same. Unlike the 

embargo in Earth Island, the action in the instant case that plaintiff would portray as an 

“embargo” is the result of plaintiff failing to meet the requirements of a NMFS 

preapproval application and NMFS’ inability to approve the application for importation 

when plaintiff cannot show compliance with CMs. See NMFS Denial Letter at 3-4 (citing 

50 C.F.R. § 300.105(d), (h)(2)). The provision of the statute and regulations in the 

instant action serve to facilitate importation of toothfish within the parameters of 

CCAMLR CMs, whereas the statute before the Ninth Circuit in Earth Island served to 

prohibit the importation of shrimp from an entire country if the country was found not to 

comply with shrimp trawl fishing protocols that protect sea turtles. Earth Island, F.3d at 

649. 
Court No. 22-00299 33 

 Further, the circumstances of the instant denial — based on the failure of the 

CCAMLR “to adopt catch limits or other measures as necessary in accordance with CM 

31-01,” NMFS Denial Letter at 3 — are distinct from the prohibition in Section 609. 

Section 609 prohibits shrimp importation harvested in a way that endangers sea turtles, 

whereas AMLRCA, prohibits importation of Antarctic marine living resources harvested 

in a way that does not comply with measures adopted by a committee pursuant an 

international convention. Compare Section 609, 16 U.S.C. § 1537(b), with AMLRCA, 

16 U.S.C. § 2435(3). The inability of such a commission, the CCAMLR, to adopt, by 

consensus, “limitations [on catch] or other [equivalent] measures,” CM 31-01, is not the 

equivalent of a limitation instituted affirmatively by a law of the United States 

government to effectuate an importation prohibition of zero. See K Mart, 485 U.S. at 

185. 

 Last, plaintiff raises a decision of the U.S. District Court for the District of 

Columbia (“D.D.C.”), International Labor Rights Fund, 357 F. Supp. 2d at 205, 208-10. 

The D.D.C. granted defendant’s motion to dismiss for lack of subject matter jurisdiction 

because plaintiffs’ claims arose out of section 307 of the Tariff Act of 1930 (“Section 

307”),21 which expressly provides for an embargo on goods produced from forced labor. 

21 Section 307 of the Tariff Act of 1930, 19 U.S.C. § 1307, provided in relevant part that: 

All goods . . . mined, produced, or manufactured wholly or in part in any 

foreign country by convict labor or/and forced labor or/and indentured labor 

under penal sanctions shall not be entitled to entry at any of the ports of the 

United States, and the importation thereof is hereby prohibited, and the 

Secretary of the Treasury is authorized and directed to prescribe such 

regulations as may be necessary for the enforcement of this provision. The 

provisions of this section relating to goods, wares, articles, and 

merchandise mined, produced, or manufactured by forced labor or/and 

indentured labor, shall take effect on January 1, 1932; but in no case shall 
Court No. 22-00299 34 

Id. at 206. On this basis, the D.D.C. concluded that the USCIT had exclusive 

jurisdiction over an action under Section 307: 

In contrast to the provision of the Tariff Act at issue in K Mart, Section 307 

expressly “provides for” an “embargo” under 28 U.S.C. § 1581(i)(3), as 

defined by the Supreme Court. The plain language of Section 307 states 

that goods produced in a foreign country as a result of forced or convict 

labor “shall not be entitled to entry at any of the ports of the United States, 

and the importation thereof is hereby prohibited.” 

Id. at 208 (citing 19 U.S.C. § 1307). The D.D.C. added that “[n]either the interest in 

uniformity of judicial review, nor Congress’ intent to reserve certain cases for the 

specific expertise of the CIT, would be served by retaining jurisdiction over the plaintiffs’ 

claims.” Id. at 209. The D.D.C. also found support for its position in the fact that the 

USCIT had exercised jurisdiction over Section 307 cases in the past. Id. at 209 (citing 

McKinney v. U.S. Dep’t of Treasury, 9 CIT 315, 614 F. Supp. 1226 (1985); China Diesel 

Imps., Inc. v. United States, 18 CIT 515, 855 F. Supp. 380 (1994)).

The prohibition under Section 307 on importation of goods produced or 

manufactured by forced labor is distinct from the conditions on importation provided for 

by AMLRCA. Under Section 307, the importation of goods produced by forced labor is 

banned in its entirety, and the statute provides for the Secretary of the Treasury to 

prescribe regulations for the enforcement of the statute. 19 U.S.C. § 1307. By contrast, 

such provisions be applicable to goods, wares, articles, or merchandise so 

mined, produced, or manufactured which are not mined, produced, or 

manufactured in such quantities in the United States as to meet the 

consumptive demands of the United States. 

19 U.S.C. § 1307 (2000). Congress removed the “consumptive demand” clause, as 

part of the Trade Facilitation and Trade Enforcement Act in 2015, which Customs 

stated, would “[enhance Customs’] ability to prevent products made with forced labor 

from being imported.” Trade Facilitation and Trade Enforcement Act of 2015, Pub. L. 

No. 114-25, § 910, 130 Stat. 122, 239 . 
Court No. 22-00299 35 

AMLRCA does not provide for the issuance of a ban on all imports of Antarctic marine 

living resources. Rather, as described supra, AMLRCA provides for mechanisms and 

legal obligations necessary for the protection and conservation of Antarctic marine living 

resources. 16 U.S.C. § 2431(a)(1). Under AMLRCA, were NMFS to determine that an 

importation of a shipment of Antarctic marine living resources was harvested in violation 

of a CCAMLR CM under the international framework for resource management 

established by the CAMLR Convention and implemented by AMLRCA, NMFS would be 

authorized to prohibit importation of that shipment. 16 U.S.C. § 2435. In contrast to the 

default ban provided for in Section 307, AMLRCA and its implementing regulations do 

not provide for such a ban; rather, the statute and regulations expressly provide for 

importation so long as importers meet delineated requirements so that harvesting of 

Antarctic living resources can be balanced with the underlying conservation efforts of 

the statute.22 Compare Section 307 (prohibiting entry of all goods produced by forced 

labor), with 16 U.S.C. § 2435 (making unlawful the import of Antarctic marine living 

22 For similar reasons, the Uyghur Forced Labor Prevention Act (“UFLPA”), Pub. L. No. 

117-78, 135 Stat. 1525 (2021), is also distinguished from AMLRCA. See Ninestar Corp.

v. United States, 47 CIT __, __, Slip Op. 23-169, at 17, 19 (Nov. 30, 2023) (holding that

the UFLPA is a law providing for embargoes within the meaning of 28 U.S.C. § 1581(i)

and closely related to section 307). On December 1, 2023, plaintiff filed a notice of

subsequent authority, arguing that the Ninestar decision supports the conclusion that a

“[g]overnment action that bars the importation of individual shipments is an embargo

within the meaning of 28 U.S.C. § 1581(i).” Pl.’s Notice Sub. Auth. at 2, ECF No. 50.

The court concludes that the UFLPA is distinct from AMLRCA in that the UFLPA

provides for an embargo of goods that are from the Xinjiang Uyghur Autonomous

Region of the People’s Republic of China or are produced by entities associated with

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. Pub. L. No. 117-78, § 3, 135 Stat. at 1529.
Court No. 22-00299 36 

resources harvested in violation of the CAMLR Convention or in violation of regulations 

promulgated under the statute). 

 In the instant action, the court concludes that AMLRCA, 16 U.S.C. § 2431 et 

seq., and the implementing regulations, 50 C.F.R. §§ 300.105(d), (h)(2), as invoked by 

NMFS, see NMFS Denial Letter at 4, regulate the import of toothfish in conjunction with 

international conservation efforts agreed to by the United States and adopted by 

consensus by the CCAMLR under the CAMLR Convention. The language in AMLRCA 

and its implementing regulations making it unlawful to import toothfish is expressly 

conditioned on the terms of the CAMLR Convention and the conservation measures 

adopted thereunder. The denial by NMFS of the preapproval application does not 

constitute an “embargo” under 28 U.S.C. § 1581(i)(1)(C). 

ii. “Other quantitative restrictions” 

 Defendants argue further that NMFS’ denial of plaintiff’s pre-approval application 

is not an “other quantitative restriction[]” on the importation of toothfish within the 

meaning of AMLRCA. See Defs. Mot. Dismiss at 6-7. On this point, plaintiff does not 

present any specific arguments but only asserts without support or legal analysis: “even 

if not an embargo, it is certainly a ‘quantitative restriction on the importation of 

merchandise.’” Pl. Resp. at 8.

NMFS’ denial of plaintiff’s preapproval application does not constitute an “other 

quantitative restriction[].” 28 U.S.C. § 1581(i)(1)(C). Just as the denial of plaintiff’s 

preapproval application does not arise out of a law providing for an embargo, similarly, 

the denial does not arise out of a law providing for “other quantitative restrictions on the 

importation of merchandise.” Id. As described, the Supreme Court defined an embargo 
Court No. 22-00299 37 

in K Mart as a “governmentally imposed quantitative restriction—of zero.” 485 U.S. at 

185. By extension, under that interpretation, the common meaning23 of the term 

“quantitative restriction” would appear to be a governmentally imposed quantifiable limit 

that is not zero. See, e.g., Best Foods, Inc., 50 Cust. Ct. at 95, 218 F. Supp. at 577 

(noting that 7 U.S.C. § 624 authorizes the imposition of what the court describes as 

“fees or quantitative restrictions (quotas)”); Bethlehem Steel Corp., 28 CIT at 159 n.8, 

316 F. Supp. 2d at 1314 n.8 (stating that a “quantitative restriction agreement” under 

19 U.S.C. § 1671c(c)(3) is “an agreement by a foreign government to limit the volume of 

imports of the merchandise at issue into the United States—that is, an agreement 

establishing a quota”); Maple Leaf Fish Co., 762 F.2d at 88 (referencing a report by the 

U.S. International Trade Commission that, the court said, “recommended import relief 

taking the form of quantitative restrictions, or import quotas, for a 3-year period” 

(emphasis supplied)); American Ass’n of Exps. & Imps.-Textile & Apparel Grp. v. United 

States, 751 F.2d 1239, 1244 (Fed. Cir. 1985) (describing 7 U.S.C. § 1854 (1982) as “a 

law providing for quantitative restrictions on textiles” and referring to “quotas established 

under the authority of [that] section”);24 see also R.J.F. Fabrics, Inc. v. United States, 10 

CIT 735, 741, 743, 651 F. Supp. 1431, 1435, 1436-37 (1986) (finding that “jurisdiction 

23 As the Supreme Court in K Mart focused on the common meaning of “embargo,” so 

too does this court focus on the common meaning of “quantitative restriction.” See K 

Mart, 485 U.S. at 189; see also Conoco, 18 F.3d at 1581. 

24 Under the statute at issue in American Ass’n of Exporters & Importers-Textile & 

Apparel Group, 7 U.S.C. § 1854 (1982), the President is permitted to negotiate 

agreements “limiting the export from such countries and the importation into the United 

States” of certain products. 751 F.2d at 1241 (quoting 7 U.S.C. § 1854 (1982)). In the 

instant action, no such provision authorizing the President to impose limits on imports 

appears in AMLRCA, 16 U.S.C. § 2435, or its implementing regulations, 50 C.F.R. § 

300.105. 
Court No. 22-00299 38 

exists under § 1581(i) since plaintiff’s cause of action arises out of the administration 

and enforcement of a quantitative restriction on imported goods” where the “action 

requires a determination as to country of origin of merchandise excluded for possible 

violations of quota requirements”). 

Further, there are no “catch limits or other measures” in place pursuant to CMs 

with respect to the harvest of the toothfish at issue in this case. NMFS Denial Letter at 

3; see Corrected Compl. ¶ 22 (“The most recently-adopted catch limits were for the 

2019/2020 and 2020/2021 seasons . . . .” (citing CM 41-02 ¶ 4 (2019-2021))).25

25 The laws at issue address violations of CCAMLR conservation measures and do not 

address explicitly violations of toothfish catch limits. See 16 U.S.C. § 2435(3); 50 

C.F.R. § 300.105(d), (h)(2). Moreover, CCAMLR conservation measures may be 

broader than just quantity designations; conservation measures may address not only 

the quantity of a species that may be harvested but also other aspects of harvesting, 

such as the designation of harvesting seasons and the regulation of harvesting 

methods. CAMLR Convention art. IX(2)(a)-(i). Article IX states in relevant part: 

2. The conservation measures referred to in paragraph 1(f) above include

the following: 

(a) the designation of the quantity of any species which may be harvested 

in the area to which this Convention applies; 

(b) the designation of regions and sub-regions based on the distribution of 

populations of Antarctic marine living resources; 

(c) the designation of the quantity which may be harvested from the 

populations of regions and sub-regions; 

(d) the designation of protected species; 

(e) the designation of the size, age and, as appropriate, sex of species 

which may be harvested; 

(f) the designation of open and closed seasons for harvesting; 

(g) the designation of the opening and closing of areas, regions or subregions for purposes of scientific study or conservation, including special 

areas for protection and scientific study; 

(h) regulation of the effort employed and methods of harvesting, including 

fishing gear, with a view, inter alia, to avoiding undue concentration of 

harvesting in any region or sub-region; 

(i) the taking of such other conservation measures as the Commission 

considers necessary for the fulfilment of the objective of this Convention, 

including measures concerning the effects of harvesting and associated 
Court No. 22-00299 39 

 In sum, AMLRCA and its implementing regulations do not impose a non-zero 

numerical or quantitative limit or quota on the importation of toothfish. See generally 

16 U.S.C. § 2435(3); 50 C.F.R. § 300.105(d), (h)(2). Moreover, NMFS did not specify 

any such limit in its denial. See generally NMFS Denial Letter. 

The denial by NMFS of the preapproval application does not constitute an “other 

quantitative restriction[]” under 28 U.S.C. § 1581(i)(1)(C).

iii. “Administration and enforcement” with respect to the denial 

 Plaintiff has failed to establish jurisdiction under 28 U.S.C. § 1581(i)(1)(C) based 

on the existence of an embargo or other quantitative restriction. Accordingly, the Court 

does not have jurisdiction under § 1581(i)(1)(D) over the “administration and 

enforcement” of any such embargo or quantitative restriction. 

“[S]ection 1581(i)(4) as it relates to section 1581(i)(3) provides [that] the Court of 

International Trade [has] . . . jurisdiction over cases that arise out of any law providing 

for the administration and enforcement of an embargo.” Sakar Int’l, Inc. v. United 

States, 516 F.3d 1340, 1346 (Fed. Cir. 2008). In Native Federation, this Court 

explained with respect to the statute at issue in that case: “Since Section 9(c) does not 

provide for an embargo, Section 1581(i)(4) does not provide an independent basis for 

jurisdiction.” 31 CIT at 598, 491 F. Supp. 2d at 1186 (citing Retamal v. U.S. Customs & 

Border Prot., 439 F.3d 1372, 1375 (Fed. Cir. 2006)); see also Salmon Spawning, 33 CIT 

at 521, 626 F. Supp. 2d at 1283-84 (“[W]here a law fails to invoke the Court’s 

activities on components of the marine ecosystem other than the harvested 

populations. 

CAMLR Convention art. IX(2)(a)-(i) (emphasis supplied). 
Court No. 22-00299 40 

jurisdiction under § 1581(i)(3) because it is not an embargo or other quantitative 

restriction . . . no jurisdiction remains for the Court under § 1581(i)(4).” (citing Native 

Fed’n, 31 CIT at 598, 491 F. Supp. 2d at 1186)). Similarly, as discussed supra 

Section I.C.2 and 3, AMLRCA, 16 U.S.C. § 2435, and its implementing regulations, 

50 C.F.R. § 300.105, do not provide for an embargo or other quantitative restriction on 

the importation of merchandise. The denial by NMFS of the preapproval application 

does not constitute an embargo or other quantitative restriction and does not reflect the 

administration or enforcement of an embargo or other quantitative restriction under 

AMLRCA or its implementing regulations. As such, the Court does not have jurisdiction 

independently under section 1581(i)(1)(D). 

II. Whether the Court has exclusive jurisdiction over this action

Plaintiff and defendants dispute whether this Court or the district courts have

exclusive jurisdiction over the instant action. Compare Defs. Mot. Dismiss at 8-12; 

Defs. Reply Br. at 7-16, with Pl. Resp. at 8-11, 16-21. Parties’ arguments pertain to two 

potentially conflicting jurisdictional statutes: 28 U.S.C. § 1581(i), described supra 

Section I.A, and 16 U.S.C. § 2440, which states that “[t]he district courts of the United 

States shall have exclusive jurisdiction over any case or controversy arising under the 

provisions of this chapter [governing 16 U.S. Code Chapter 44A - AMLRC] or of any 

regulation promulgated under this chapter.” See Defs. Mot. Dismiss at 8-12; Pl. Resp. 

at 8-11, 16-21; Defs. Reply Br. at 7-16. 

The court will not consider whether its jurisdiction is exclusive over the action, 

because the court concludes, supra Section I, that it does not have jurisdiction over this 
Court No. 22-00299 41 

action under 28 U.S.C. § 1581(i) due to the lack of an embargo or other quantitative 

restriction. 

III. Transfer of action

If the “court finds that there is a want of jurisdiction, the court shall, if it is in the

interest of justice, transfer such action or appeal to any other such court . . . in which the 

action or appeal could have been brought at the time it was filed or noticed.” 28 U.S.C. 

§ 1631; see Salmon Spawning, 33 CIT at 518, 626 F. Supp. 2d at 1281 (citing 28

U.S.C. § 1631). “It is in the interest of justice to transfer an action if it preserves a 

party’s right to be heard on its potentially meritorious claim.” Salmon Spawning, 33 CIT 

at 518, 626 F. Supp. 2d at 1281 (citing Galloway Farms, Inc. v. United States, 834 F.2d 

998, 1000 (Fed. Cir. 1987)). During oral argument, plaintiff stated that the Southern 

District of Florida would be the proper district court for transfer of the case. Oral Arg. Tr. 

at 82:6-14. Defendants did not adopt a definitive position, stating that “if the Court 

decides it doesn't have jurisdiction and if the Court decides it's appropriate, [the 

government] wouldn't oppose transfer of the action to the appropriate District Court.” 

Oral Arg. Tr. at 82:17-24. 

The court invites parties to file motions to transfer under 28 U.S.C. § 1631 to the 

appropriate district court. Dalton v. Southwest Marine, Inc., 120 F.3d 1249, 1250 (Fed. 

Cir. 1997) (“[S]ection 1631 is a remedial statute designed to eliminate any prejudice that 

results from filing in an improper forum.”). 

CONCLUSION 

For the reasons discussed, the court does not have subject matter jurisdiction 

over the instant action and invites parties to file within 21 days of this opinion and order 
Court No. 22-00299 42 

a motion to transfer. 28 U.S.C. § 1631. In the motions to transfer, the court directs 

parties to indicate which district court has jurisdiction over the underlying action. Absent 

parties’ confirmation of their view as to the proper district court for transfer of this action, 

the court will enter a dismissal of the action and judgment will enter accordingly. 

/s/ Timothy M. Reif 

Timothy M. Reif, Judge 

Dated: 

 New York, New York 

December 7, 2023