[00:00:00] Speaker 00:
Defense Council Inc.

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Center for Biological Diversity Animal Welfare Institute versus Wilbur L. Ross in his official capacity as Secretary of Commerce at all.

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This is case number 2018-2325.

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Dr. McCarthy.

[00:00:42] Speaker 04:
Good afternoon, Your Honors.

[00:00:52] Speaker 00:
Good afternoon.

[00:00:53] Speaker 00:
You're Patricia McCarthy.

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You're reserving two minutes of your time for rebuttal, correct?

[00:00:59] Speaker 04:
Yes, Your Honor.

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Okay.

[00:01:01] Speaker 00:
Okay, we're ready.

[00:01:03] Speaker 04:
Thank you, Your Honor.

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The trial court's injunction should be vacated for a variety of reasons.

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First and foremost, as we noted on page three of our reply brief, the underlying action has been moot since November 27, 2018.

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The agency has issued a 7061 claim.

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The agency issued a final and conclusive determination.

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All of the documents we received with regard to the mootness issue were directed to the Court of International Trade, but that

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We received no briefing directed to this court.

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Should that make a difference?

[00:01:38] Speaker 04:
It should not make a difference, Your Honor.

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I fully acknowledge it's awkward, and we would be delighted to provide supplemental briefing.

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But this issue is squarely before the court.

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The Court of National Trade held oral argument on our motion, which was fully briefed as of January.

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When this court scheduled this case for oral argument, we immediately filed a Rule 28J, later advising the court that our motion was still pending before the trial court shortly thereafter.

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the Court of International Trade scheduled oral argument on our long pending motion to dismiss and asked for supplemental briefing, which the parties provided.

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And we've noted that in our second full 28-J letter.

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And just unfortunately, from our perspective, last Friday evening, the Court of International Trade, after hearing oral argument and taking further supplemental briefing, the Court of International

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Trey declined to rule on the motion and stayed the underlying action.

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So therefore, the question as to the jurisdiction of the trial court, particularly the first issue that arises is because we maintain, and we haven't been told that we're wrong,

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that the trial court lacks jurisdiction.

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We are essentially asking, Your Honors, for an advisory opinion as to the merits of this preliminary injunction.

[00:02:58] Speaker 01:
A lot has obviously happened since last summer when Judge Katzmann entered his preliminary injunction.

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Frankly, as I view it, and I'm viewing it as a spectator rather than a participant because none of this is really part of our record,

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But as I see it, the complexion of the case is completely different because you now have a decision on the comparability issues.

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And there are a lot of questions in my mind as to how all of that fits in, if at all, with the issue that's before us, which is a preliminary injunction predicated on the failure to take action at the time.

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I have a bunch of questions, and I want you to answer some of them.

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But my first question is, why isn't all of this something that has to be decided initially by the trial court, since there are numerous legal and factual issues that are raised by the new developments in this case?

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Well, we asked the trial court to decide.

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But the trial court knew that we had jurisdiction over the case and decided to wait for us.

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We can invite the trial court

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to go ahead and decide those questions by sending it back to him.

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Why shouldn't we do that?

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Yes.

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Well, in the ordinary case, the trial court would have been divested of jurisdiction.

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But we weren't asking the trial court for any specific relief regarding the injunction on appeal.

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We were asking because the threshold Article III case and controversy requirement has no longer been satisfied.

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This case is moot.

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This is a 7061 claim.

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But that decision requires factual findings.

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Which, well, there's a Federal Register notice that's a matter of public record in which the agency's final and conclusive determination that regarding comparability findings, Mexico asked for comparability findings under the binding regulations, which the trial court, by the way, did not regard as binding in its original decision issuing the Palermo injunction.

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Didn't even apply the regulations, even though the regulations have been in effect since 2017.

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Mexico asked.

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for comparability findings, the agency provided those.

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That is precisely the relief.

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I understand you're excited.

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The Young Declaration, it actually talks about, and this is not something that's in front of us, but I know that you all gave us links to all sorts of materials.

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The Young Declaration, could you give us some background here?

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You're talking about a final agency determination.

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But the Young Declaration, which I believe Ms.

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Young is with the government, she explains that on November 27, 2018, there was a memorandum issued by the government on comparability findings.

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But then just three days later, there was a change in administration in Mexico.

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And then subsequent to that change in administration, I understand that none of the actual regulations that had been discussed

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or that Mexico had originally proffered have been put into effect.

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So it makes me, again, go back to Judge Reno's point that isn't this a factual issue?

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I mean, you say there's a final agency determination, but your own

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declaration from Ms.

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Young says that there needs to be a comparability finding still on the basis that the government of Mexico has to fail to put in place a regulatory comparable and effectiveness to the US regulatory program.

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And I'm reading from paragraph 20 of Ms.

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Young's declaration.

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Yes, Your Honor.

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There was a final and conclusive agency action.

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It was published in the Federal Register.

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The agencies are placing its own import ban on one Corvina fishery

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in Mexico.

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That is a final conclusive agency determination.

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Who is imposing an import ban?

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Well, the agency is the only authorized entity under the statute to do it, the Court of National Trade.

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Our view is that the Court of National Trade's injunction is ultra-varying.

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But who is?

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You're talking about the Department of Commerce?

[00:07:14] Speaker ?:
No.

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Okay.

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The National Fisheries, the National Marine Fisheries Service.

[00:07:18] Speaker 00:
Isn't that under the Department of Commerce?

[00:07:19] Speaker 04:
It's under the Department of Commerce, yes, Your Honor.

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Okay.

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That, and so the Federal Register notice, and the Federal Register notice is 83, FedReg 6283.

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Or four, if I don't have my glasses.

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That indicates, I just need a final conclusion.

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How does that address, though, the remedy that the plaintiffs are seeking?

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They're seeking the import ban under the Marine Mammals Act.

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I mean, that's pretty specific.

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And yet, what this subsequent action that has occurred

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It doesn't really address that, does it?

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No, it's precisely the action under the Marine Mammals Protection Act.

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But it doesn't address the issue of an import ban.

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All it does is say, let's continue doing basically what we've been doing in the past.

[00:08:05] Speaker 04:
No, Your Honor, I respectfully disagree.

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The Federal Register notice makes it very clear, as does the agency's final determination, that it made a determination as to whether US standards are being violated.

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as to certain fisheries that Mexico has indicated.

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And Santa Clara Corvina has been banned.

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Yes, yes.

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And the only reason why the agency's determination, which was made six months ago, the only reason why the agency's determination has not been put into place is because the trial court's alter varies injunction is blocking that.

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Something you said raises a question that I had about where we are in terms of the statutory language US standards.

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is that the government's position that the comparability determination is a determination that US standards have been met, or not met, if the comparability.

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Yes, that's exactly what it is.

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That's it, right?

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And it's using the regulatory definition of US standards, which is in the regulations.

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But you say that's the agency's construction of the statutory language.

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Right.

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And the agency's entitled to deference.

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And we cited Wheatland Tube in our opening brief.

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And the appellees never responded to it.

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Wheatland Tube.

[00:09:18] Speaker 01:
OK, I understand that.

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I have another question.

[00:09:20] Speaker 01:
So at the very end of the Federal Register for December 6, there is a statement that the government of Mexico has requested that NMFS update its loft to reflect only those fisheries and gear types authorized to fish in the

[00:09:36] Speaker 01:
upper Gulf of California, and the agency then removes all gillnet fisheries listed as operating in the upper Gulf from the list of foreign fisheries.

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What is that all about?

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I tried to understand that in the context of export and exempt fisheries, and it didn't make any sense to me.

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Can you explain what that paragraph is all about?

[00:09:59] Speaker 04:
Yes, Your Honor.

[00:10:00] Speaker 01:
I will try to do this as... What is the... the loft I thought was all foreign fisheries?

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is illegal authorized foreign fisheries.

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And the gill net fisheries that Mexico asked the agency to remove are illegal, illegal gill net fisheries.

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And the main point of departure between the agency, which has lawfully defined what US standards means, and what the trial court is, is the trial court has been very explicit in holding

[00:10:33] Speaker 01:
So there's export, and there's exempt, and there's illegal.

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And the export and the exempt are on the loft, and the illegal are left off the loft.

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And if they're left off the loft, then they're banned.

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Yes, they're banned under Mexican law.

[00:10:49] Speaker 01:
Mexico has banned- But are they banned?

[00:10:51] Speaker 01:
They're banned under US law as well, I take it.

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Yes, they're banned under US law, and they're banned under Mexico law.

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And let me just- They're banned, but this is not an import ban.

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They're not allowed to, yes.

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And as Ms.

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Young in the declaration to which Judge Stoll was referring, Ms.

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Young explained that under a different statutory authority, the Magnuson-Stevens Act, just as of January 1st of this year, the agencies implemented a brand new tracking system in order to trace.

[00:11:21] Speaker 01:
But come back to Judge Raina's question, because I have exactly the same question.

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This is a ban on importation?

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Is that what you're saying?

[00:11:29] Speaker 01:
Under the MMPA.

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Fisheries that are the Santa Clara and also all of the ones that have been taken off the loft.

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the importation of fish from those fisheries is banned by the US.

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Is that correct?

[00:11:43] Speaker 04:
Under different statutory authorities.

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Under the MNPA, under the agency's final determination in November, there will be a ban on the corvina fisher identified.

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And in terms of implementing that ban, as it's doing now, the agency will be requiring certificates of immiscibility

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not only for Chano, not only for the Corvina, but also for the Chano and for the Sierra because they're intermingled under the harmonized tariff schedule codes that Customs has.

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That is the system that we have in place now.

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So are the fish that are coming from the illegal fisheries setting aside the injunction that's in place?

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If the injunction were not in place,

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Would those fish now be importable legally by the U.S.?

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No.

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And the reason would be what action was it that rendered those not importable?

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Because under Mexican law, they're not allowed to be explicit.

[00:12:39] Speaker 01:
Never mind Mexican law.

[00:12:40] Speaker 01:
Under US law.

[00:12:40] Speaker 04:
There be legal under the Magnuson-Stevens Act.

[00:12:43] Speaker 01:
And I thought you said that something was going to be implemented.

[00:12:47] Speaker 04:
As part of enforcing, the appellee's real complaint is about a lack of enforcement of US law.

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Under the Magnuson-Stevens Act, there's been a new SIMP program, which Ms.

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Young describes in her declaration.

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It just went into effect January 1st of this year.

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And it provides for tracking and certification of all imports to assure that they won't be.

[00:13:06] Speaker 00:
But all of that does not go to an import ban, as described under the statute.

[00:13:12] Speaker 00:
This is not an import ban you're talking about.

[00:13:13] Speaker 04:
No, because it's not covered.

[00:13:15] Speaker 00:
You're arguing that if a certain type of fishing is illegal in Mexico, then we can expect that those type of fish won't appear in the US market.

[00:13:24] Speaker 00:
But the record reflects otherwise.

[00:13:26] Speaker 00:
The record reflects that.

[00:13:28] Speaker 04:
I'm sorry, the record is not, Your Honor.

[00:13:30] Speaker 04:
I'm sorry to interrupt, Your Honor.

[00:13:31] Speaker 04:
But the record shows that the Remailment Protection Act applies to legal fisheries, legal authorized licensed vessel registries.

[00:13:40] Speaker 00:
But let's get this squared away.

[00:13:42] Speaker 00:
An import ban would apply

[00:13:44] Speaker 00:
whether fishing in that country is legal or not, correct?

[00:13:47] Speaker 04:
No, Your Honor.

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And MMPA, yes, under different statutory authorities, but under the MMPA, which is what this suit is about, only legal fisheries are regulated.

[00:13:56] Speaker 04:
It's akin to saying that the Food and Drug Administration regulates street heroin.

[00:14:00] Speaker 00:
It doesn't do that.

[00:14:01] Speaker 00:
You're talking about regulation in Mexico.

[00:14:04] Speaker 00:
The import ban is regulation at the border.

[00:14:07] Speaker 04:
No, Your Honor, there's regulations.

[00:14:08] Speaker 04:
The Madison-Stevens Act is a United States statute.

[00:14:14] Speaker 04:
The Lacey Act is a United States statute.

[00:14:17] Speaker 04:
There are also Mexican laws which also ban the exportation.

[00:14:21] Speaker 04:
And all gillnet fishery except for the exempted fisheries in Mexico are banned.

[00:14:27] Speaker 04:
And this court's precedent is unclear.

[00:14:28] Speaker 01:
Under Mexican law.

[00:14:29] Speaker 04:
Under Mexican law.

[00:14:30] Speaker 01:
But also you're saying US law.

[00:14:32] Speaker 04:
And US law as well, yes.

[00:14:34] Speaker 01:
So just to get this, we're getting a barrage of different statutes, to cut it down to the basics.

[00:14:42] Speaker 01:
If we have fish that are coming either from the Santa Clara fishery, that's banned, no importation under the MMPA.

[00:14:52] Speaker 01:
If we have fish from the Gulf of California or anywhere else that are not on the loft, but are illegally caught,

[00:15:02] Speaker 01:
then they're banned, although not under the MNPA, but under a different statute.

[00:15:07] Speaker 01:
And they can't be imported under US law to the US.

[00:15:10] Speaker 01:
That's what you're telling us, right?

[00:15:12] Speaker 04:
Take, for instance, the illegal totoaba fisheries.

[00:15:14] Speaker 04:
Oh, wait, wait.

[00:15:15] Speaker 04:
Yes, yes.

[00:15:15] Speaker 01:
Make sure that what I'm saying is right.

[00:15:17] Speaker 04:
You absolutely stated it 100% correctly.

[00:15:20] Speaker 02:
OK, fine.

[00:15:21] Speaker 04:
Yes.

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And just to give you an example, the illegal totoaba fisheries is the main cause of the tragic

[00:15:27] Speaker 04:
loss of the vaquita is if someone attempts to export a swim bladder into the United States and which has happened then that seven individuals were prosecuted for criminal violations by the US Attorney's offices because that's wildlife trafficking and that's smuggling.

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The Marine Mammal Protection Act does not address wildlife trafficking.

[00:15:48] Speaker 04:
It does not address smuggling.

[00:15:50] Speaker 04:
It addresses the regulation of lawful

[00:15:52] Speaker 03:
Can I ask you another question, which is I looked at the Federal Registration Notice and it said that comparability findings are valid for a limited period unless revoked.

[00:16:03] Speaker 03:
I'm wondering whether they've been revoked given Ms.

[00:16:07] Speaker 03:
Young's statement that I had asked you about earlier where she said that new comparability findings needed to be made.

[00:16:15] Speaker 04:
No, they have not been revoked.

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Although the trial court held that the regulatory scheme did not apply, it does apply.

[00:16:22] Speaker 03:
Why haven't they been revoked?

[00:16:24] Speaker 04:
Because, as Young indicated, the agency is in discussions with Mexico and making determinations and reconsidering, and it may take further action.

[00:16:34] Speaker 04:
to augment its final action as of November in accordance.

[00:16:39] Speaker 04:
In fact, we received, on April 27th, the agency received a letter from the Government of Mexico responding to its concerns.

[00:16:46] Speaker 03:
But the Government of Mexico, as I understand it, has never implemented and is not currently implementing the regulations under which the U.S.

[00:16:56] Speaker 03:
gave them the comparability findings, right?

[00:16:58] Speaker 04:
The plan that Ms.

[00:17:00] Speaker 04:
Young describes in her declaration has not been implemented to the United States satisfaction.

[00:17:04] Speaker 04:
But this is an ongoing dialogue and at some point discussions are continuing

[00:17:11] Speaker 04:
the agency may reconsider his action and may amend those comparability findings.

[00:17:15] Speaker 04:
The comparability findings under the regulatory scheme, which again has the force of law and has been in place since 2017, even though the trial court said it did not apply, the comparability findings are all things being equal supposed to last for four years.

[00:17:28] Speaker 04:
In this case, the agency pursuant to the regulatory scheme may decide to take further action.

[00:17:34] Speaker 04:
And it actually may impose, it has the authority under the regulations to provide an import ban that is far more draconian than what the trial court has provided here.

[00:17:44] Speaker 04:
The difference is that that would be a lawful ban because the agency has the lawful statutory authority to do that, to implement and administer this regulation.

[00:17:53] Speaker 04:
And what the trial court has done instead has implemented injunction that provides nothing but a disincentive to Mexico to take any of the key protections.

[00:18:06] Speaker 00:
We don't know that, do we?

[00:18:08] Speaker 00:
I read that with interest, those comments that there's this disincentive, but we don't know that because there never has been this total import ban in place.

[00:18:16] Speaker 04:
Your Honor, I'd set you three things.

[00:18:18] Speaker 04:
First of all, I urge you to read the government of Mexico's amicus brief with an exclaim exactly the disincentive that it provided.

[00:18:25] Speaker 04:
And I also urge you to read Ms.

[00:18:27] Speaker 04:
Young's declaration, which talks about the new change in administration.

[00:18:30] Speaker 04:
The circumstances for faquita protection, several months after the trial court's injunction has been in place, has been to have civil unrest, has been to have... It seems to me that those documents say the following.

[00:18:45] Speaker 00:
We're taking action.

[00:18:46] Speaker 00:
We're going to take more action.

[00:18:48] Speaker 00:
Don't impose the import ban because we're trying.

[00:18:54] Speaker 00:
And even if you do import an import ban, it's not going to help because we can't prevent illegal fishing from going on in Mexico.

[00:19:05] Speaker 00:
And what I see here is that the only thing that has not been tested or done yet, after all these years of talk and talk, is

[00:19:15] Speaker 00:
the import ban and we're looking at the PBR the potential for biological Reduction and it seems to me.

[00:19:24] Speaker 00:
It's becoming a PBR a potential for biological redaction, there's just

[00:19:30] Speaker 00:
I mean, isn't it time to move on to the step that hasn't been tried yet?

[00:19:35] Speaker 04:
There's no evidence in the record, Your Honor, that a licensed fishery has caused any vaquita bycatch in the past two or three years.

[00:19:44] Speaker 04:
There's simply no evidence in the record.

[00:19:46] Speaker 04:
The illegal fishing has been caused by

[00:19:50] Speaker 04:
The vaquita bycatch has been caused primarily by illegal tatuaba, which has absolutely nothing to do with the Marine Mammal Protection Act.

[00:19:57] Speaker 04:
And the definition of U.S.

[00:20:01] Speaker 04:
standards is in the regulation, and it is radically different from what the trial court applied.

[00:20:06] Speaker 04:
The trial court equated United States standards in an inherently ambiguous term with PPR, and that is, with all due respect to the trial court, a simplistic term

[00:20:15] Speaker 04:
which is directly contrary to the regulations.

[00:20:19] Speaker 03:
You mentioned the amicus brief from Mexico.

[00:20:24] Speaker 03:
Given the date of the filing, am I correct in understanding that the amicus brief was actually filed by the previous administration?

[00:20:32] Speaker 03:
Yes, Your Honor.

[00:20:33] Speaker 03:
That is correct.

[00:20:35] Speaker 00:
But you're not asking us to consider political questions, correct?

[00:20:40] Speaker 00:
You know, shifting administrations and things of that nature?

[00:20:43] Speaker 04:
No, Your Honor, we are not.

[00:20:44] Speaker 04:
The one thing I will note that in terms of one of the most draconian and scary forms of relief

[00:20:50] Speaker 04:
that the trial court referenced the two footnotes in its decisions, that it would contemplate doing a permanent injunction.

[00:20:57] Speaker 04:
It has no authority to do a permanent injunction.

[00:20:59] Speaker 04:
And imagine, if you will, if your honors take a look at the careful regulatory scheme that provides for a fluid interchange of data and a constant reevaluation of whether standards are being met, with a permanent, in perpetuity, ban on four fisheries

[00:21:16] Speaker 04:
going forward, what possible incentive would the government of Mexico or any other harnessing... Why are we talking about that?

[00:21:22] Speaker 03:
There was no permanent injunction issued.

[00:21:24] Speaker 04:
Because the trial court has not dismissed the case as moot.

[00:21:28] Speaker 04:
That's the only thing left to provide.

[00:21:31] Speaker 01:
Well, other than a determination that the preliminary injunction should be vacated and the case is over.

[00:21:40] Speaker 01:
You're suggesting that the trial court is

[00:21:44] Speaker 01:
bound and determined to enter a permanent injunction, it seems to me that all of these new facts may very well change the complexion of the case before the trial court.

[00:21:52] Speaker 04:
We hope that they do.

[00:21:56] Speaker 04:
We believe that the trial, we have had oral argument more recently, and the appellees can correct me if I'm wrong, but their position is that there's still more relief that they could receive, and that would be a permanent injunction.

[00:22:08] Speaker 03:
So it's your view that this is a case brought under 7061,

[00:22:13] Speaker 03:
And that's all it could be brought under.

[00:22:15] Speaker 03:
There can't be any sort of conversion to a 7062 case?

[00:22:19] Speaker 04:
No.

[00:22:20] Speaker 04:
In the most recent further supplemental filing at the trial court, the plaintiffs did ask for amendment of the complaint to allow them to bring a 7062.

[00:22:30] Speaker 04:
And we fully recognize that, yes, the agency's final conclusive determination on November is subject to review under 7062.

[00:22:37] Speaker 04:
But before that may occur, A, this unlawful preliminary injunction must be vacated.

[00:22:41] Speaker 04:
The 7061 claim must be dismissed as moot.

[00:22:44] Speaker 04:
And we can go ahead and proceed.

[00:22:45] Speaker 04:
And we've committed to the trial court that we're the agency to do that.

[00:22:48] Speaker 04:
We would promptly file an administrative record.

[00:22:51] Speaker 04:
There could be a quick judicial review.

[00:22:54] Speaker 04:
But we need to follow the APA here.

[00:22:57] Speaker 04:
And this is just not following the APA in any way.

[00:23:00] Speaker 01:
In response to one of Judge Stoll's questions a few minutes ago, I thought you said, but correct me if I'm wrong, that the comparability finding

[00:23:11] Speaker 01:
was predicated on an agreement that Mexico entered into with respect to what would happen going forward, not with respect to what was happening now on the ground or on the water.

[00:23:30] Speaker 01:
So this is just perspective.

[00:23:32] Speaker 01:
In other words, right now, there's nothing in place

[00:23:38] Speaker 01:
establishes that what's going on in Mexico in the fisheries that have been found to be comparable is in fact comparable to what's going on in the U.S., under U.S.

[00:23:50] Speaker 01:
standards.

[00:23:51] Speaker 01:
Is that a fair statement?

[00:23:52] Speaker 04:
Well, tell me if it's a fair statement first.

[00:23:57] Speaker 04:
Well, it's a fair statement, but let me be a little more specific.

[00:23:59] Speaker 04:
Is it a correct statement?

[00:24:00] Speaker 04:
The comparability findings were issued as to certain non-gill net fisheries, and they were denied to the one-gill net fishery.

[00:24:07] Speaker 04:
Mexico has a general ban on gill net fisheries, and it made exceptions for the Covina fishery.

[00:24:12] Speaker 04:
So in the November 27 determination, the agency said,

[00:24:17] Speaker 04:
your non-gill net fisheries are comparable, meeting U.S.

[00:24:20] Speaker 04:
standards.

[00:24:21] Speaker 04:
The gill net fishery, the Covina gill net fishery, that is an exception to the Mexico's ban, is not.

[00:24:28] Speaker 04:
And that's why the import ban is placed on that fishery.

[00:24:30] Speaker 03:
But there also was, it was based on the plan.

[00:24:33] Speaker 03:
I think it's referred to in the papers as the plan.

[00:24:36] Speaker 03:
But as I understand it, Mexico never implemented and has not yet complied with the plan.

[00:24:43] Speaker 03:
It is not.

[00:24:44] Speaker 03:
So that means that Judge Bryson's question

[00:24:46] Speaker 03:
And when he said that the basis for the agency's determination that Mexico has a plan and has the comparability findings, excuse me,

[00:25:02] Speaker 03:
are not actually based on anything that's actually occurred.

[00:25:05] Speaker 03:
It's only based on something that's prospective.

[00:25:08] Speaker 04:
Yes, you're right.

[00:25:08] Speaker 03:
But that is the correct statement?

[00:25:10] Speaker 03:
Yes.

[00:25:10] Speaker 04:
And Mexico has been taking measures, and it committed to take further measures.

[00:25:15] Speaker 04:
And the agency's view currently, as Ms.

[00:25:17] Speaker 04:
Young averred in her declaration, is that Mexico, from the standpoint of the agency, appears not to be living up to its commitments, that there's been a change

[00:25:27] Speaker 04:
in administration and that the commitments are not being satisfied.

[00:25:30] Speaker 03:
In your own papers, Ms.

[00:25:31] Speaker 03:
Young's declaration says that they are not, that they failed to comply with the compliance.

[00:25:36] Speaker 03:
Right.

[00:25:37] Speaker 04:
And therefore, there is currently reconsideration of the comparability findings and once the agency makes another determination consistent with the regulations, it may indeed propose, it could indeed.

[00:25:48] Speaker 03:
Why do you think the statute allows you to have that time period?

[00:25:53] Speaker 03:
I mean, there's no compliance right now with the state, the plan.

[00:25:57] Speaker 03:
So what?

[00:25:58] Speaker 03:
in the statute allows there to be a negotiation before an import ban occurs?

[00:26:04] Speaker 04:
Well, in order to do an import ban, there needs to be a finding that lawful regulated fisheries are having the key to bycatch in excess of US standards.

[00:26:12] Speaker 04:
There's been no determination to that effect, and there's no evidence to that effect in the record.

[00:26:16] Speaker 04:
As we've explained, the trial court improperly applied, even though it's undisputed that the MMPA applies to only lawful licensed regulated domestic fisheries,

[00:26:28] Speaker 04:
The trial court made this assumption defying the regulations and defying the definition of regulation.

[00:26:33] Speaker 00:
It made the assumption there's a likelihood of success, correct?

[00:26:37] Speaker 00:
I mean, the trial court already looked at the record, and it has determined the likelihood of success.

[00:26:42] Speaker 00:
And that's one of the basis for the preliminary judgment.

[00:26:45] Speaker 04:
Right.

[00:26:45] Speaker 04:
And some of it says.

[00:26:46] Speaker 00:
Let me go back to what Judge Stoll was saying.

[00:26:52] Speaker 00:
When would an import ban be imposed?

[00:26:54] Speaker 00:
At what point?

[00:26:55] Speaker 04:
The minute that this illegal injunction is dissolved, the import ban will come into effect.

[00:27:01] Speaker 04:
The minute.

[00:27:01] Speaker 04:
It will be instantaneous.

[00:27:03] Speaker 03:
And that's just going to be on the Santa Clara fishery, correct?

[00:27:06] Speaker 04:
Yes.

[00:27:06] Speaker 04:
But in order to implement that, I want this to be very clear.

[00:27:09] Speaker 04:
In order to implement that, because of the HDS codes, the import ban would require certificates of invisibility for Covino, Chano, and for Covina.

[00:27:20] Speaker 04:
Anything that would come into the United States would be.

[00:27:23] Speaker 01:
For which fish, again?

[00:27:25] Speaker 01:
You said Covina, Chana, and Covina.

[00:27:27] Speaker 01:
But which are the fish that you are?

[00:27:29] Speaker 04:
The ban is on the Covina, but where the import ban to go into effect, we require certificates of immiscibility, which is how they're being implemented right now, for all three fisheries because of the way the harmonized tariff schedules are set.

[00:27:43] Speaker 01:
We're talking about Covina,

[00:27:46] Speaker 01:
How about Covina, Sierra, Chano, and shrimp, as I understand it?

[00:27:50] Speaker 04:
Right, right.

[00:27:50] Speaker 04:
Now the injunction applies to those four fisheries.

[00:27:53] Speaker 04:
Shrimp would not be part of the import ban, because there is no legal authorized gillnet fishery for shrimp.

[00:28:00] Speaker 04:
Shrimp, as I said, shrimp is illegal.

[00:28:04] Speaker 04:
And gillnet fishing is illegal.

[00:28:06] Speaker 04:
And there is simply no authorized legal fishing.

[00:28:09] Speaker 00:
Does that cover the large percentage of fish that are caught in these waters that are exported to the US?

[00:28:14] Speaker 04:
Yes.

[00:28:16] Speaker 00:
See that I've run way over you have you run way over time we let you know responding for questions, so I'll give you enough rebuttal.

[00:28:25] Speaker 00:
Okay.

[00:28:25] Speaker 00:
Thank you very much.

[00:28:29] Speaker 00:
Councillor Wang.

[00:28:32] Speaker 05:
May it please the court, Vivian Wong for the conservation groups.

[00:28:36] Speaker 05:
I'd like to start out by, I think, trying to address some misunderstandings of the record.

[00:28:40] Speaker 05:
Judge Bryson, you asked my opposing counsel whether the agency has made a decision on comparability and that the case is thus moved.

[00:28:47] Speaker 05:
That is not the case because defendants did take some action, but it is not the action that Congress commanded in that plaintiff's request, which is an import ban under the MNPA.

[00:28:56] Speaker 05:
Instead, they made comparability findings for seven non-gillnet fisheries that are not at issue in this case.

[00:29:03] Speaker 05:
issued a negative comparability finding for Corvina from one port city in Mexico, and then made no decision at all on the gillnet fisheries that we sued over, instead choosing to erase them from the list of foreign fisheries.

[00:29:15] Speaker 01:
But that converts them, as I understand it, into banned fisheries.

[00:29:20] Speaker 01:
That was certainly Ms.

[00:29:22] Speaker 01:
McCarthy's point.

[00:29:23] Speaker 01:
Is that true?

[00:29:25] Speaker 05:
No, Your Honor.

[00:29:25] Speaker 05:
We don't believe that that's an accurate reading of the... Here we are.

[00:29:29] Speaker 01:
We have the fundamental disagreement between the two of you on a question that's just larded with factual issues.

[00:29:36] Speaker 01:
I mean, what are we to do with this?

[00:29:39] Speaker 01:
Now, are we to say, well, we thought Ms.

[00:29:41] Speaker 01:
Wang was more persuasive and therefore we believe her and not Ms.

[00:29:46] Speaker 01:
McCarthy.

[00:29:46] Speaker 01:
What in the world do you expect an appellate court to do with a dispute like this?

[00:29:51] Speaker 05:
Your Honor, I'm happy to answer questions and try to be helpful, but I also do agree with you that this is a fact intensive.

[00:29:57] Speaker 05:
There are disputes of fact, for example, on exactly how the different regulatory regimes work, exactly what the agency did here.

[00:30:04] Speaker 01:
Why don't you explain to me why it is that Ms.

[00:30:06] Speaker 01:
McCarthy has mischaracterized the consequence of taking those other fisheries off the loft?

[00:30:14] Speaker 05:
Right, so she's referring to the agency's list of foreign fisheries, which is not a creature of statute, but of the regulation.

[00:30:22] Speaker 05:
And what that is is sort of a reference tool for the agency, where by regulation they classify fisheries as either exempt, meaning they have no more than a remote chance of killing marine mammals, or an export fishery, which means that they have more than a remote likelihood of incidentally killing.

[00:30:37] Speaker 05:
marine mammal in the case of commercial fishing.

[00:30:40] Speaker 05:
Now, Ms.

[00:30:40] Speaker 05:
McCarthy also refers to a third category of illegal fish, but that doesn't appear in the regulations.

[00:30:47] Speaker 05:
That's not part of the categorization.

[00:30:49] Speaker 01:
Her contention is that once a fishery is not in either the export or exempt category and is taken off the loft, that it is illegal to import fish from those fisheries.

[00:31:08] Speaker 01:
period, not under the MMPA, but under US law otherwise.

[00:31:12] Speaker 01:
Is she wrong about that?

[00:31:15] Speaker 05:
We do respectfully disagree, Your Honor.

[00:31:17] Speaker 05:
And I think, Sputter, the evidence of that is in the agency's own prior actions with respect to the list of foreign fisheries.

[00:31:24] Speaker 00:
No, but does the law prohibit the importation of those fish?

[00:31:30] Speaker 05:
That's not by the plain language of the law.

[00:31:32] Speaker 05:
The statute talks about an import ban, removal from the list of foreign fisheries, whether or not that functionally operates as some other kind of prohibition is a fact-intensive question, Your Honors, that we think that the trial court ought to be able to resolve in the first instance.

[00:31:46] Speaker 05:
And, Your Honor, if I may use an example to illustrate why the agency's position is not consistent.

[00:31:52] Speaker 05:
In 2017, the agency proposed a loft, and that included fin fish gillnet fisheries, but did not list from Mexico the shrimp gillnet fisheries.

[00:32:01] Speaker 05:
Now, their final loft in 2017 included shrimp from Mexico.

[00:32:06] Speaker 05:
The Mexican government protested saying, hey, you know, these fisheries are illegal.

[00:32:10] Speaker 05:
We're not exporting them.

[00:32:11] Speaker 05:
And the agency said, well, no, we're still keeping that on the loft because we're retaining these as classified.

[00:32:18] Speaker 05:
Excuse me.

[00:32:21] Speaker 05:
The agency said we're retaining the supposedly illegal shrimp gill net fisheries.

[00:32:26] Speaker 05:
Classified as export and keeping it on the loft because of evidence of continued illegal fishing and vaquita mortality And that's in the public record.

[00:32:34] Speaker 03:
That's at 83 Federal Register Can I ask you something so you're saying there's something that should have been taking off the list?

[00:32:41] Speaker 03:
That they said that they were going to keep on the list, but that doesn't and maybe I'm just confused but that doesn't seem to me to demonstrate whether or

[00:32:51] Speaker 03:
When something's on the loft list, that means that it can come into the country.

[00:32:55] Speaker 03:
And when it's not on the loft list, it means that it's banned.

[00:33:00] Speaker 05:
Right.

[00:33:01] Speaker 05:
Your Honor is correct.

[00:33:03] Speaker 05:
Our position is that whether or not a fishery is on or off the list of foreign fisheries, which also, by regulations, by their terms, doesn't even start until 2022.

[00:33:14] Speaker 05:
So that's not an immediate import ban.

[00:33:16] Speaker 05:
But even then, that that... Whoa, whoa, whoa, whoa.

[00:33:18] Speaker 01:
You mean if something is off

[00:33:20] Speaker 01:
the loft that there's not a ban until 2022.

[00:33:27] Speaker 01:
I thought being off the loft took you out from the MMPA and put you under the statutes that prohibit the imports from illegal fisheries.

[00:33:43] Speaker 01:
We really shouldn't be having a discussion of these fundamental points where the parties are in disagreement.

[00:33:50] Speaker 01:
These have to be matters that are very clear.

[00:33:53] Speaker 01:
I just find it bewildering that we're sitting here discussing really basic things about the way this whole system works, and we're getting different answers from both sides.

[00:34:05] Speaker 05:
I understand, Your Honor.

[00:34:06] Speaker 05:
I think that part of the complexity here stems from the fact that we have complementary but non-duplicative statutory regimes.

[00:34:16] Speaker 05:
The Magnuson Act, the Lacey Act, and we have the Marine Mammal Protection Act.

[00:34:21] Speaker 05:
These all have different enforcement mechanisms.

[00:34:22] Speaker 05:
They target different things.

[00:34:23] Speaker 05:
And the Lacey Act, for instance, is looking at trafficking and at dealing with invasive species.

[00:34:29] Speaker 05:
The Magnuson Act deals with sort of just fisheries stock health and fisheries management.

[00:34:34] Speaker 05:
The Marine Mammal Protection Act, which is at issue here, the priority of that is to ensure that marine mammals are not pushing for extinction.

[00:34:42] Speaker 00:
But do the other acts have bearing on an import ban or not, whether an import ban is imposed, or they even need one?

[00:34:49] Speaker 00:
If importations are prohibited under one of the other laws that you're talking about,

[00:34:59] Speaker 00:
I don't think that helps you.

[00:35:02] Speaker 05:
Your Honor, we think that there is still a need for a separate import ban under the MMPA.

[00:35:06] Speaker 05:
And indeed, if Congress had intended for an MMPA regime to give way when Lacey or Magnuson regimes are in place, Congress could have specified that in the act.

[00:35:15] Speaker 00:
If the enforcement of the laws under the other acts, which at some point prohibit the importation,

[00:35:23] Speaker 00:
then doesn't that reduce the risk?

[00:35:26] Speaker 00:
Or why do you need a preliminary injunction at that point?

[00:35:31] Speaker 00:
There's no immediate risk.

[00:35:34] Speaker 00:
I'm beginning to see something different here.

[00:35:37] Speaker 00:
If, in fact, these other acts had that type of an effect on the Marine Mammal Protection Act,

[00:35:45] Speaker 05:
Well, Your Honor, the injunction under the MMPA is still required because the Congress chose this remedy knowing that the import ban itself embargo, which is something different from these other acts, different from wildlife trafficking penalties, for example, that embargo under the MMPA, what it does is it directly incentivizes

[00:36:03] Speaker 05:
foreign governments to change, to improve their practices in order to re-enter a lucrative market.

[00:36:07] Speaker 01:
Are you saying then that the illegal fish are not embargoed?

[00:36:12] Speaker 01:
That illegally caught fish that are off the loft are not subject to, they're not part of an embargo?

[00:36:20] Speaker 05:
Your Honor, under the Marine Mammal Protection Act, there's not been, the agency has not made a finding

[00:36:27] Speaker 05:
that, you know, that Mexico's protective regime is comparable.

[00:36:31] Speaker 05:
And thus, there has not been an explicit or expressed ban under the MAP.

[00:36:36] Speaker 01:
And that... Well, there has been with respect to Santa Clara.

[00:36:39] Speaker 05:
Yes, Your Honor.

[00:36:40] Speaker 05:
And you're happy about that.

[00:36:42] Speaker 01:
So are you fully satisfied with respect to that fishery that everything has been done that needs to be done?

[00:36:47] Speaker 05:
Yes and no, Your Honor.

[00:36:49] Speaker 05:
Yes, you're absolutely right.

[00:36:51] Speaker 05:
I apologize.

[00:36:52] Speaker 05:
It's complicated.

[00:36:53] Speaker 01:
See if you can make it as simple as you can, because so far I'm feeling underwater with respect to the complications.

[00:37:02] Speaker 05:
I will try, Your Honor.

[00:37:02] Speaker 05:
There's evidence on the record, including from defendant's own documents, that Curvina gillnet fishing is occurring in various port cities and regions in the Vaquitas habitat, not just in the Gulf of Santa Clara.

[00:37:15] Speaker 05:
Their comparability finding is restricted to that, which means that their ban is restricted to that.

[00:37:20] Speaker 05:
And that means that because it's difficult to police which fish are coming over the border, the fact that a more comprehensive ban is likely to still give plaintiffs more relief.

[00:37:31] Speaker 05:
Because otherwise, it can be hard to tell.

[00:37:32] Speaker 05:
It's easier to tell there's no gillnet caught curving at all versus, well, is this one from Santa Clara versus San Felipe?

[00:37:41] Speaker 05:
We think that a comprehensive ban is both what the statute requires and what the facts here

[00:37:45] Speaker 05:
compel, given the dire straits of the vaquita.

[00:37:49] Speaker 05:
And Your Honor, to return to your point about the loft, which I understand, I think there's a couple of points to make there.

[00:37:56] Speaker 03:
The first is that it doesn't... I just want to ask you a question.

[00:38:00] Speaker 03:
Looking at the Federal Register notice on March 16, 2018, it says, effective January 1, 2022, fish and fish products from fisheries identified by the assistant administrator in the loft

[00:38:16] Speaker 03:
can only be imported into the United States if the harvesting nation has applied for and received a comparability finding.

[00:38:23] Speaker 03:
So does this language affect January 1st, 2022?

[00:38:27] Speaker 03:
Is that the language you're relying on for your position that the loft doesn't even go into effect until then?

[00:38:33] Speaker 05:
Yes, but Your Honor is correct that by the agency's own regulatory terms, the law in that entire regulatory regime doesn't kick in until 2022.

[00:38:42] Speaker 05:
Did they change this at all?

[00:38:44] Speaker 05:
They did not, Your Honor, but I would say in addition to that, our argument does not turn solely on that.

[00:38:49] Speaker 05:
The law itself

[00:38:51] Speaker 05:
regulates what's termed commercial fishing operations.

[00:38:55] Speaker 05:
And that does not distinguish between legal and illegal fisheries.

[00:38:58] Speaker 05:
And in fact, part of what's contested on the merits of this case is whether it's permissible to interpret US standards or the way this regulatory regime works as including only legal fisheries.

[00:39:09] Speaker 05:
And that is a question of the merits and not a question that goes to the consumer.

[00:39:13] Speaker 00:
Why isn't your argument that it doesn't matter what's happening under all these statutes?

[00:39:18] Speaker 00:
What matters are that the numbers show

[00:39:21] Speaker 00:
that the vaquitas are diminishing in number.

[00:39:25] Speaker 00:
And that under the Marine Mammal Protection Act, there's a remedy for that.

[00:39:30] Speaker 00:
And that this remedy needs to be applied.

[00:39:33] Speaker 00:
And that remedy is an import ban.

[00:39:35] Speaker 00:
And that import ban, it seems to me, applies irregardless of the other statutes, whether it's legal fishing, illegal fishing, or any type, it's an import ban.

[00:39:45] Speaker 00:
And that's what I thought we were looking at here.

[00:39:48] Speaker 05:
Yes, Your Honor, that is correct.

[00:39:50] Speaker 05:
Setting aside sort of the rest of this, we turn back to the language of the statute itself.

[00:39:56] Speaker 05:
And it does say that the agencies shall ban imports when these fisheries are causing marine mammal death in excess of United States standards.

[00:40:04] Speaker 05:
And there's no measure of United States standards by which

[00:40:08] Speaker 05:
the vaquita, which is a population of which only approximately 15 individuals remain, which defendant's own evidence shows that gillnet bycatch is their leading cause of mortality, and that even one more bycatch death threatens their very survival.

[00:40:21] Speaker 05:
There's no doubt that these fisheries are killing vaquita nexus.

[00:40:25] Speaker 00:
The evidence shows that or the numbers show that a certain amount of vaquitas are killed every year or every two years.

[00:40:32] Speaker 00:
And if we go stretch it out to 2022, we can pretty much say that

[00:40:38] Speaker 00:
By then, when other types of measures are implemented, that there may be just two or three.

[00:40:44] Speaker 00:
I mean, I just don't understand.

[00:40:47] Speaker 00:
I thought your argument was going to be different than what you're arguing today.

[00:40:54] Speaker 05:
Your Honor is correct that that is the core of our argument.

[00:40:56] Speaker 05:
I was trying to address issues more related to mootness and the actions that the defendants recently took.

[00:41:01] Speaker 05:
Your Honor is absolutely correct.

[00:41:03] Speaker 05:
The standards are being exceeded.

[00:41:04] Speaker 05:
The Marine Mammal Protection Act is unambiguous in imposing a discrete and nondiscretionary duty on the agency.

[00:41:11] Speaker 01:
Do you agree with the?

[00:41:12] Speaker 01:
Well, go ahead.

[00:41:13] Speaker 01:
You had another point.

[00:41:14] Speaker 05:
I was just going to say that is the discrete nondiscretionary duty we seek to enforce.

[00:41:19] Speaker 01:
Do you agree that comparability findings is equivalent to US standards, as the government asserts?

[00:41:32] Speaker 05:
If I may answer in two parts, Your Honor, I think first, I think it's important to note that their definition of U.S.

[00:41:37] Speaker 05:
standards has shifted throughout the course of this.

[00:41:39] Speaker 01:
Well, I understand that, but they've settled on one now, and Ms.

[00:41:41] Speaker 01:
McCarthy is telling us that this is the current definition of U.S.

[00:41:45] Speaker 01:
standards.

[00:41:46] Speaker 01:
Now, do you think that that is?

[00:41:48] Speaker 01:
Whether you look at it through the Chevron lens or just as a matter of statutory construction, is that correct in your view?

[00:41:54] Speaker 05:
I think it is correct but incomplete, Your Honor.

[00:41:56] Speaker 05:
And the reason I would say that is if we look at even the regulatory text that she's pointing to.

[00:42:01] Speaker 05:
All right, so if we look at 50 CFR 216.248, it says that to achieve a comparability finding and avoid a ban, a fishery has to show it does not exceed bycatch limit.

[00:42:12] Speaker 05:
And then if we go to 50 CFR 216.3,

[00:42:15] Speaker 05:
It defines a bycatch limit as the calculation of potential biological removal level for a particular marine mammal stock or a comparable scientific metric.

[00:42:23] Speaker 05:
And so either way we're getting at it, Your Honor, whether it's looking directly at potential biological removal, which is all over the statute itself, or if we're looking at, as they now take the position of litigation, the comparability finding.

[00:42:36] Speaker 01:
Well, it's more than litigation.

[00:42:37] Speaker 01:
I think it's effectively in their more recent federal registry notices.

[00:42:45] Speaker 01:
They're saying comparability equals US standards, as I read it.

[00:42:51] Speaker 05:
And if the court were to record that weight, then we'd say that at the end of the day, we still get back to potential biological removal.

[00:43:00] Speaker 01:
Right.

[00:43:00] Speaker 01:
But if they are saying, and it seems to me that's what I mean, if comparability equals US standards, and if US standards, as you just said, is predicated on the PBR,

[00:43:14] Speaker 01:
then what they're saying when they find comparability is that the PBR is satisfied with respect to the fisheries that have been found to make comparability findings, right?

[00:43:27] Speaker 01:
And your only argument then would be, well, they're wrong about that.

[00:43:30] Speaker 05:
That's not correct, Your Honor, because their comparability findings are respect to seven non-gillnet fisheries that are not the fisheries we're suing over.

[00:43:37] Speaker 05:
I think that's the critical distinction.

[00:43:39] Speaker 05:
They keep on using the term comparability finding, but they're specific to these different fisheries at issue.

[00:43:44] Speaker 05:
And we sued over four specific gillnet fisheries.

[00:43:47] Speaker 05:
The comparability findings in that Federal Register notice pertain to seven

[00:43:51] Speaker 05:
Non-gill net fisheries that they concede are not an issue in this litigation except for as your honor has mentioned before the Corvina fishery from Gulfwood a Santa Clara that is the only fishery or part of a fishery that Is that issue in this case that they've actually made some sort of comparability to you're saying there's three other fisheries at least That are in your suit and the basis for your suit that do not have comparability findings at all

[00:44:16] Speaker 05:
That's correct, Your Honor.

[00:44:17] Speaker 05:
They declined to make a finding one way or another.

[00:44:19] Speaker 01:
And they declined on the basis that they concluded that there was no legal gillnet fishing going on in those areas?

[00:44:27] Speaker 05:
No, Your Honor.

[00:44:28] Speaker 05:
Well, we're actually left with this.

[00:44:29] Speaker 01:
When you say no, Your Honor, do you mean no, I'm not correct, or that they didn't make a finding to that effect?

[00:44:37] Speaker 03:
I thought you were saying that they didn't address them at all, didn't even consider them.

[00:44:41] Speaker 03:
But am I misunderstanding you?

[00:44:43] Speaker 01:
Did they strike them from the loft?

[00:44:46] Speaker 05:
They removed them from the law.

[00:44:48] Speaker 01:
So they did consider them to that extent.

[00:44:50] Speaker 05:
They did.

[00:44:50] Speaker 05:
But it's not the consideration, not the determination that's required by statute.

[00:44:56] Speaker 05:
And that's sort of what's at issue there.

[00:44:57] Speaker 01:
So are we down to trying to figure out if, contrary to what Ms.

[00:45:03] Speaker 01:
McCarthy is telling us, that the MMPA applies to illegal fishing?

[00:45:09] Speaker 01:
Is that kind of the crux of the question now?

[00:45:12] Speaker 01:
Because it sounds like that's where you're heading.

[00:45:16] Speaker 01:
Your argument is that these fisheries that use gill nets but were not on the comparability determination but rather taken off the loft are nonetheless under the MNPA.

[00:45:30] Speaker 01:
Ms.

[00:45:30] Speaker 01:
McCarthy says that they don't belong under the MNPA because the MNPA only regulates legal fishing.

[00:45:39] Speaker 01:
They have to be dealt with under other statutory provisions.

[00:45:44] Speaker 01:
Is that the dispute, the core of the dispute that we're getting down to?

[00:45:49] Speaker 05:
I think that's fair to characterize that, Your Honor, because what is partly at issue here is indeed whether the MMPA applies to illegal fisheries.

[00:45:58] Speaker 05:
And that is a question of statutory interpretation that the trial court looked at and decided that the statute and the regulation itself doesn't make a distinction between illegal and legal.

[00:46:07] Speaker 05:
And so it applies to all of it.

[00:46:08] Speaker 05:
And that's a determination.

[00:46:09] Speaker 05:
Again, that's a merits question.

[00:46:11] Speaker 05:
It does not go to whether this case is

[00:46:15] Speaker 05:
still a live controversy or whether we can still obtain, effectively, from the court.

[00:46:21] Speaker 05:
In general, again, to clarify your point that defendants, you say, have taken these three fisheries off the list, and that's equivalent action, what we are actually left with actually is only defendants' triple negative statement in their brief that NOAA fisheries did not conclude that the key to bycatch from gillnet fisheries that are not authorized do not meet US standards.

[00:46:41] Speaker 05:
That's not the same thing as the finding that we request.

[00:46:43] Speaker 05:
It's not the same thing.

[00:46:44] Speaker 05:
as the mandatory import ban that Congress commands.

[00:46:48] Speaker 01:
And Your Honor, I see about.

[00:46:50] Speaker 01:
What portion of the brief were you just reading from?

[00:46:52] Speaker 05:
This is their reply brief, Your Honor, on the mootness question, which they would have referenced in their 28-J letters.

[00:47:02] Speaker 05:
But this is the briefing that's not before this board.

[00:47:04] Speaker 01:
This isn't a brief before us.

[00:47:05] Speaker 05:
That's right.

[00:47:06] Speaker 05:
None of these issues, actually.

[00:47:07] Speaker 05:
These issues pertaining to the fisheries is not

[00:47:14] Speaker 05:
These are questions that have all arisen after the close of the record on which this appeal is based on our first.

[00:47:19] Speaker 05:
And second, these are questions of the merits that should go back to the trial court.

[00:47:24] Speaker 05:
These are questions that are fact-intensive that, in the first instance, we respectfully say the court should be considered by the Court of International Trade in the first instance.

[00:47:33] Speaker 01:
OK, so where in the papers that were submitted to the trial court is the statement that you just read with the negative?

[00:47:44] Speaker 05:
If you don't mind.

[00:47:46] Speaker 01:
Sure.

[00:47:48] Speaker 01:
Actually, maybe if your colleague can find it, you can continue with your argument.

[00:47:52] Speaker 01:
That would be fine.

[00:48:00] Speaker 05:
Your Honor, the standard for mootness is whether it is impossible for the court to grant any effective relief.

[00:48:04] Speaker 05:
And I think we are saying that an affirmative ban

[00:48:07] Speaker 05:
pursuant to the MNPA on all four gillnet fisheries, Corvina, Chano, Sierra, and Shrimp, in the Vaquitas range, is still relief that this court can grant, because it's not action that the agency has taken.

[00:48:17] Speaker 05:
If your honors have questions on sort of the factors of the preliminary injunction appeal itself, I'm happy to address them, but I do see that I'm over time.

[00:48:26] Speaker 00:
Well, I have a- Well, I'm giving you all the time that you need and my colleagues need, so don't feel compelled to sit down.

[00:48:32] Speaker 01:
I do have a question that goes back to the

[00:48:37] Speaker 01:
question of where this fits under the APA.

[00:48:41] Speaker 01:
Is this, in your view, still a 7061 case, or is it more properly viewed as a 7062 case?

[00:48:49] Speaker 05:
The former, Your Honor.

[00:48:50] Speaker 05:
It's a 7061 case because we're trying to compel agency action that is yet to be taken.

[00:48:55] Speaker 01:
They argue that there is equivalent action, but that's not... Well, the Southwest Utah case distinguishes between the two and says that

[00:49:06] Speaker 01:
In effect, there's a big difference between, I'm not sure that this isn't slight overstatement, but a big difference between not acting and refusing requested action.

[00:49:18] Speaker 05:
Yes, Your Honor.

[00:49:19] Speaker 01:
Now, why in this, in your view, haven't they done something which constitutes, they've responded to the issue you've raised, and they've responded in a way that you think is unsatisfactory.

[00:49:33] Speaker 01:
Why doesn't that kick it out of 7061?

[00:49:36] Speaker 05:
It's not that we find the response unsatisfactory.

[00:49:39] Speaker 05:
We don't even get there.

[00:49:40] Speaker 05:
We say that the response is not the one that's compelled by statute.

[00:49:44] Speaker 01:
But isn't that exactly what every 7062 plaintiff says, which is you did something which was not correct under the statute.

[00:49:54] Speaker 01:
That's what every APA review case since 1947, they've all been about that, or most of all,

[00:50:04] Speaker 05:
Our argument at this stage of the case is not that we disagree with the substance of the finding.

[00:50:10] Speaker 05:
It's that they haven't made a finding at all.

[00:50:11] Speaker 05:
All they've said is that, well, Mexico says we're not exporting, so we're just going to take these fisheries off the list of foreign fisheries.

[00:50:19] Speaker 05:
That's not the same thing as an actual comparability determination, which we know what a comparability determination looks like, right?

[00:50:26] Speaker 05:
Because they made it for these seven nondulant fisheries, and they made a negative comparability finding for the Santa Clara carvina fishery.

[00:50:33] Speaker 05:
they didn't issue any similar sort of final determination on comparability for the fisheries that are still at issue in our case.

[00:50:39] Speaker 03:
Can I ask you something?

[00:50:40] Speaker 03:
I was looking at the definition of export fishery in the regulation.

[00:50:46] Speaker 03:
And as part of that, it says commercial fishing operations not specifically identified in the current list of foreign fisheries as either exempt or export fisheries are deemed to be export fisheries until the next list of foreign fisheries is published.

[00:51:01] Speaker 03:
So what does that mean?

[00:51:02] Speaker 03:
It sounds to me like it means that it doesn't matter whether it's on the list or not.

[00:51:08] Speaker 05:
Again, the list is a function of the agency regulation.

[00:51:13] Speaker 05:
We still think that it's disputed whether or not this thing is the same thing as an import ban directly versus just

[00:51:20] Speaker 05:
you know, a administrative tool that is used for looking at tariff codes, for example, in these things.

[00:51:25] Speaker 05:
And Your Honor, the way that list operates is that it doesn't, by its own terms, even kick in until 2022.

[00:51:31] Speaker 05:
And we cannot wait that long.

[00:51:33] Speaker 00:
If it is an import ban, which I have reservations about, then doesn't that render the import ban under the Marine Protection Act superfluous?

[00:51:49] Speaker 05:
Your Honor, I'm not sure if I understand.

[00:51:51] Speaker 05:
You're saying if the Loft is itself an import ban, does it render the statutory... Import ban under the statute superfluous?

[00:52:02] Speaker 05:
If it were a straight import ban then perhaps, but it's not clear at all from the regulations or even from the agency's own actions with respect to the list.

[00:52:11] Speaker 00:
To what extent is the imposition of an import ban under the MMA dependent contingent

[00:52:20] Speaker 00:
on other findings by other agencies or the negotiations between Mexico and the United States with these other statutes that we're talking about.

[00:52:30] Speaker 00:
Can a finding be made for an import ban under the MM Marine Protection Mammal Act that doesn't even look

[00:52:44] Speaker 00:
at what the other enforcement proceedings are going on by other agencies or by the government of Mexico.

[00:52:52] Speaker 00:
Is it a standalone remedy?

[00:52:54] Speaker 05:
The import ban itself is, Your Honor, under the MNPA.

[00:52:56] Speaker 05:
Congress could have and has in other statutes allowed for overlaps.

[00:53:00] Speaker 00:
That's what confuses me about your argument, because you're arguing all these other things, the comparability study, whether one is ready or not, where it seems to me the statute gives a standalone remedy for an import ban.

[00:53:12] Speaker 05:
That's right, Your Honor.

[00:53:13] Speaker 05:
And we think that the trigger for that has been satisfied.

[00:53:15] Speaker 05:
And because the agency has, on its own record, determined that the current- The agency has standards in order to meet whether the import ban is required.

[00:53:25] Speaker 00:
And part of it is the PBR, right?

[00:53:29] Speaker 05:
Right.

[00:53:29] Speaker 05:
Whether the import ban is required is the trigger for that, Your Honor.

[00:53:33] Speaker 05:
And the statute is whether there is marine minimal bycatch in excess of United States standards.

[00:53:38] Speaker 05:
And Your Honor is correct.

[00:53:39] Speaker 05:
United States standards includes potential biological removal level, which there's no dispute here that that level is being exceeded here.

[00:53:47] Speaker 05:
And that's a consistent factual position that the agency has not tried to back away from.

[00:53:51] Speaker 05:
And it's no exaggeration, Your Honor, to say that the vaquita is on the brink of extinction.

[00:53:56] Speaker 05:
And as you were just saying, the statute makes the remedy in this case clear.

[00:54:03] Speaker 05:
The agency may prefer negotiations and may prefer these alternate regulatory measures and may seek to, as it says in this briefing, want to avoid market disruption.

[00:54:13] Speaker 05:
These may all be valid concerns, but these are not concerns that Congress allows the agency to take into account because the command in the statute is clear.

[00:54:22] Speaker 05:
United States standards are being exceeded and an import ban under the MNPA is the remedy that Congress chose.

[00:54:33] Speaker 00:
Any questions?

[00:54:34] Speaker 00:
Okay, we thank you.

[00:54:35] Speaker 00:
Thank you.

[00:54:37] Speaker 05:
Oh, Your Honor, I'm sorry.

[00:54:37] Speaker 05:
I have the page of the brief that you asked.

[00:54:40] Speaker 00:
Yes, thank you.

[00:54:41] Speaker 05:
It is page four of their reply brief, which the district court docket number is 79.

[00:54:46] Speaker 05:
79 is the number of page four.

[00:54:49] Speaker 03:
On page four?

[00:54:50] Speaker 05:
Yes, Your Honor.

[00:54:53] Speaker 03:
Do you have a particular spot that you're looking at, or is it you just... If you don't mind.

[00:54:59] Speaker 05:
I can hand this to you.

[00:55:01] Speaker 03:
No, I have it.

[00:55:02] Speaker 03:
I just wanted to know what particular language you're pointing at.

[00:55:05] Speaker 05:
Sure.

[00:55:05] Speaker 05:
This is what my colleague, Judge Bryson, the last paragraph on page four.

[00:55:09] Speaker 03:
Thank you.

[00:55:09] Speaker 05:
That's what NIMS has now rendered.

[00:55:11] Speaker 00:
Right.

[00:55:12] Speaker 00:
Good.

[00:55:13] Speaker 00:
So you reserve two minutes of rebuttal time.

[00:55:15] Speaker 00:
But obviously, I'm going to give you more time.

[00:55:17] Speaker 04:
Thank you, Your Honor.

[00:55:18] Speaker 04:
You've been extremely indulgent.

[00:55:19] Speaker 04:
I appreciate it.

[00:55:20] Speaker 04:
First and foremost, it's been stated multiple times that the regulation is not in effect until 2022.

[00:55:27] Speaker 04:
Mexico asked for a comparability finding on November 9, 2018.

[00:55:31] Speaker 04:
It waived the five-year exemption period.

[00:55:33] Speaker 04:
The regulation is in fact right now, and it has been all along, but the five-year exemption period has been waived by the Government of Mexico.

[00:55:41] Speaker 04:
The import ban will go into effect when and if this illegal injunction is ever dissolved.

[00:55:46] Speaker 04:
It will immediately go into effect in accordance with the Federal Register of Notice.

[00:55:50] Speaker 03:
What about that language, though, that I had read earlier?

[00:55:54] Speaker 03:
about, it says, effective January 1st, 2022, fish and fish products from the fisheries identified by the Assistant Administrator in the Loft can only be imported into the United States if the harvesting nation has applied for and received a comparability finding.

[00:56:07] Speaker 03:
You're saying something else.

[00:56:08] Speaker 03:
You're saying, trust me, trust me, we're going to do it right away.

[00:56:12] Speaker 03:
But I want to know, you know, I'm confused by this language.

[00:56:16] Speaker 03:
So please point to me where in the record I can find something to tell me that what I'm reading is wrong.

[00:56:23] Speaker 04:
The Federal Register noted that Mexico asked for comparability findings on November 9th.

[00:56:29] Speaker 03:
There's nothing in the Federal Register that says when a country asks for comparability findings, it's waiving the January 1st, 2022 date.

[00:56:38] Speaker 03:
Is there?

[00:56:38] Speaker 03:
I mean, that's what I'm asking for.

[00:56:43] Speaker 04:
I will find it in response to your honest question.

[00:56:48] Speaker 04:
Just to start with the threshold question about whether this statute applies to, covers illegal fishing.

[00:56:56] Speaker 04:
The import ban itself in the statute uses the word commercial fishing technology no fewer than three times.

[00:57:03] Speaker 04:
Commercial fishing.

[00:57:04] Speaker 04:
The statutory language refers to commercial fishing.

[00:57:08] Speaker 01:
Which is fishing other than for your own purposes.

[00:57:10] Speaker 01:
And that would include illegal as well as legal, you would think.

[00:57:14] Speaker 04:
Well, the regulation at 50 CFR 2016.3 defines commercial fishing operation means the lawful harvesting of fish from marine environment for profit as part of an ongoing business.

[00:57:27] Speaker 03:
I think your argument on this is in the briefs, but what I want to ask you is something different.

[00:57:31] Speaker 03:
If we were to disagree with you, or a court were to disagree with you, do you have an alternative argument?

[00:57:37] Speaker 03:
There was some suggestion earlier that maybe removing those fisheries from the loft list is enough.

[00:57:43] Speaker 03:
constitute agency action on those fisheries, but you're not arguing that, right?

[00:57:49] Speaker 03:
Your only argument is simply that the statute doesn't pertain to illegal fisheries, right?

[00:57:56] Speaker 04:
We're saying that the statute does not pertain to illegal fisheries, therefore, in accordance with the statute and the regulations,

[00:58:03] Speaker 04:
the agency removed at the behest of Mexico, which is consistent with Mexico's representations that these are illegal fisheries, removed them off the list of foreign fisheries because they are not covered within the ambit of the Marine Mammals Protection Act.

[00:58:18] Speaker 01:
And the way you get to that is because the agency has construed the word commercial to refer only to legal fishing?

[00:58:26] Speaker 04:
Right.

[00:58:26] Speaker 01:
There's nothing in the act itself that says

[00:58:29] Speaker 01:
commercial is limited to legal, right?

[00:58:31] Speaker 04:
This is a Chevron interpretation.

[00:58:36] Speaker 01:
It's not in the statute, right?

[00:58:39] Speaker 04:
No, no, I respectfully disagree a tiny bit, Your Honor, because the definition of... Is it in the statute or not?

[00:58:45] Speaker 04:
Well, for domestic fisheries it is.

[00:58:47] Speaker 04:
For 16 U.S.C.

[00:58:49] Speaker 04:
1387, the provisions of the, this is for domestic fisheries, a list of domestic fisheries, the provisions of the section shall govern the incidental taking and remandals in the course of commercial fishing operations by persons using vessels of the United States or vessels which have valid fishing permits issued by the secretary in accordance with section 1824B of this title.

[00:59:13] Speaker 01:
No such language shows up in connection with the foreign.

[00:59:16] Speaker 04:
No, but by reference to US standards, those are the reference.

[00:59:21] Speaker 04:
The US standards refers to the domestic fisheries, which are licensed fishery.

[00:59:26] Speaker 04:
The agency is instructed by Congress to compare apples and oranges.

[00:59:30] Speaker 04:
And you don't compare lawful domestic fisheries with illegal trafficking, illegal wildlife traffickers.

[00:59:39] Speaker 04:
There's no way to... That's because it's very difficult to do that.

[00:59:43] Speaker 04:
Well, I will say that the agency has promulgated a definition which unambiguously applies.

[00:59:50] Speaker 00:
Isn't that why an import ban is blind to whether a particular fish is legal or not, caught legally or illegally in a foreign country?

[01:00:00] Speaker 00:
And that's why the statute doesn't refer to foreign fisheries.

[01:00:06] Speaker 04:
Statute does refer to foreign fisheries, and the statute refers to legal.

[01:00:13] Speaker 04:
The agency, whether rightly or wrongly under Chevron 2, has promulgated lawful regulations.

[01:00:17] Speaker 00:
With respect to the definition of commercial fishing.

[01:00:19] Speaker 04:
Which refer to lawful.

[01:00:21] Speaker 04:
There are other regulatory schemes.

[01:00:23] Speaker 00:
Right, but that does not refer to foreign fishing.

[01:00:27] Speaker 00:
That's a definition, or that applies to domestic fishing.

[01:00:32] Speaker 04:
The statutory language that I read you, Your Honor, applies to domestic fisheries.

[01:00:36] Speaker 04:
Then there's the import ban.

[01:00:37] Speaker 04:
Then onto the regulations, which are lawful.

[01:00:40] Speaker 00:
Is there something similar with respect to foreign fishing?

[01:00:43] Speaker 04:
The only reference to foreign fisheries is the import ban, which uses the word commercial fishing operations, not fewer than three times, in the very import ban language.

[01:00:50] Speaker 04:
And so we think it's unreasonable.

[01:00:52] Speaker 00:
Would you say that any fish that is coming into the United States as an import is in the marketplace?

[01:01:02] Speaker 00:
The only reason why you would send a fish to the U.S.

[01:01:05] Speaker 04:
is to commercialize it.

[01:01:14] Speaker 04:
Let me just address your Honor's question.

[01:01:19] Speaker 04:
It's illegal to, under various schemes, including Mexico law and American law, including the Magnuson-Warren Act and the Magnuson-Stevens Act and the Lacey Act, it's illegal to import illegally caught fish.

[01:01:34] Speaker 04:
It's banned.

[01:01:35] Speaker 04:
It's banned under those statutory authorities.

[01:01:38] Speaker 04:
The MNPA provides an import ban for commercial fisheries because part of the intended beneficiary were the domestic fisheries, the American domestic fisheries.

[01:01:52] Speaker 04:
That was what Congress had intended.

[01:01:55] Speaker 04:
The other thing I wanted to do, Your Honor, Judge Stoll incorrectly responded to your question about the Mexican agreement has both current regulations and future commitments.

[01:02:07] Speaker 04:
So I didn't want to, I think I said that was all perspective.

[01:02:11] Speaker 03:
Are you going to answer my other question about the effective date?

[01:02:28] Speaker 04:
I apologize.

[01:02:33] Speaker 04:
The other thing I'd like to know is that.

[01:02:38] Speaker 03:
Are you going to answer my other question about the effective date?

[01:02:41] Speaker 03:
OK.

[01:02:45] Speaker 03:
I'm sorry, Your Honor.

[01:02:46] Speaker 03:
I just wanted a yes or no.

[01:02:48] Speaker 03:
Yeah.

[01:02:49] Speaker 03:
So you're going to try to answer it.

[01:02:50] Speaker 03:
Yes.

[01:02:51] Speaker 03:
Thank you.

[01:02:51] Speaker 03:
I apologize, Your Honor.

[01:02:53] Speaker 04:
The other thing is that the appellees themselves provided notice and comment on the statutory definition of US standards.

[01:03:02] Speaker 04:
And this is part of the court's record because it was attached to our motion for emergency, the reply in support of our motion for emergency stay.

[01:03:09] Speaker 01:
Commentary on the regulations.

[01:03:11] Speaker 04:
Right, they provided notice and comment.

[01:03:12] Speaker 04:
And this is what the appellees themselves wrote in their notice and comment on the definition of US standards, which is not, as the trial court held, the same as simply PBR.

[01:03:24] Speaker 04:
In their notice and comment, the appellee said, we commend MNN.

[01:03:28] Speaker 04:
What page of the appendix are you reading?

[01:03:32] Speaker 04:
This is the docket and entry of this Court 34.2 at page 9.

[01:03:36] Speaker 04:
But is it in our appendix?

[01:03:38] Speaker 04:
It's in the court's record.

[01:03:40] Speaker 04:
It's part of the emergency stay.

[01:03:42] Speaker 01:
It's a federal registered notice.

[01:03:47] Speaker 01:
We don't have the trial court record.

[01:03:49] Speaker 01:
We have the appendix.

[01:03:50] Speaker 04:
No, it's in this court's record.

[01:03:51] Speaker 04:
We filed an emergency motion for stay.

[01:03:53] Speaker 01:
Oh, this court's record.

[01:03:54] Speaker 01:
This is the docket of our docket.

[01:03:56] Speaker 04:
This court's docket record, number 34.2 at page 9.

[01:04:00] Speaker 04:
We filed this on November 2, 2018.

[01:04:03] Speaker 04:
And this was the appellee's own comment.

[01:04:06] Speaker 04:
MFS for proposing a comprehensive application of, quote, U.S.

[01:04:10] Speaker 04:
standards that includes and they italicize both a substantive bycatch standard and they italicize and procedural requirements that will allow NMFS to ensure nations are meeting the bycatch standard, including the requirements for stock assessments, vessel registry, which does not happen with illegal traffickers, and monitoring.

[01:04:31] Speaker 04:
Congress clearly intended a broad interpretation of, quote, United States standards, because it did not identify a particular bycatch rate with which nations must comply, citing 16 USC 1371A2.

[01:04:48] Speaker 04:
And then it continues to go on, accordingly, Congress clearly intended, quote, United States standards, end of quote, to be broader than just a numeric bycatch standard and include a full regulatory program.

[01:05:00] Speaker 04:
And I asked your honors to compare that definition proposed and successfully achieved by the appellees themselves with the simplistic, with all due respect to the trial kits, trial course, simplistic definition of United States standards applied at page JA 35, among other places, with regard to the meaning of U.S.

[01:05:20] Speaker 04:
standards.

[01:05:22] Speaker 04:
unquestionably ambiguous statutory term that the agency is fully empowered and entitled to define.

[01:05:31] Speaker 04:
It has defined it in regulations that have the force of law that have been in effect since 2017.

[01:05:38] Speaker 04:
And the one thing I will say about this five-year period, the impression given is that

[01:05:42] Speaker 04:
that everyone, the harvesting nations and the agency is just sitting around waiting for this five-year period to happen.

[01:05:50] Speaker 04:
The reason why there's a five-year period is because the agency is constantly interacting with the harvesting nations.

[01:05:56] Speaker 03:
Are they actually saying, here I'm looking at this paper you just read to us, and it's talking about, I think their point here though is that they want to make sure there's procedural requirements that will make sure that whatever the definition is, that it has some

[01:06:12] Speaker 03:
there's some way for the agency to actually apply that and have impact.

[01:06:17] Speaker 03:
I don't know, there's a lot of different ways you can read it, but it says it's important that it have both a substantive by-catch standard and procedural requirements that will allow NMFS to ensure nations are meeting the by-catch standard.

[01:06:32] Speaker 03:
I'm not sure I read it in the way that you're reading it now.

[01:06:36] Speaker 04:
Well, in any event, they did not endorse what they're defending right now is a simplistic equation of United States standards with US standards.

[01:06:44] Speaker 04:
And Your Honor, the citation that you're looking for is 50 CFR 216.24 H8.

[01:06:49] Speaker 04:
Hang on, hang on.

[01:06:51] Speaker 03:
I let you run a little fast.

[01:06:53] Speaker 03:
I'm sorry.

[01:06:54] Speaker 03:
I'm sorry, Your Honor.

[01:06:54] Speaker 03:
I'm incredibly out of time.

[01:06:55] Speaker 03:
Could you please tell me what it is I should be looking at?

[01:06:57] Speaker 04:
I'm sorry.

[01:06:58] Speaker 04:
I'll do this a little slower.

[01:06:59] Speaker 04:
50 CFR 216.24 H8.

[01:07:04] Speaker 03:
Wait, wait.

[01:07:04] Speaker 03:
15 CFR, I'm sorry.

[01:07:06] Speaker 03:
50 CFR.

[01:07:08] Speaker 03:
I'm sorry.

[01:07:08] Speaker 03:
What is it?

[01:07:09] Speaker 04:
CFR 216.24 H8 Roman numerals 6.

[01:07:18] Speaker 03:
And what does that say?

[01:07:27] Speaker 04:
It's the procedure.

[01:07:30] Speaker 04:
If Your Honor, I can just pull it up here.

[01:07:50] Speaker 04:
It's the procedures for comparability finding for new foreign commercial fishing operations.

[01:07:57] Speaker 03:
Where does that say that when it's going to go into effect?

[01:08:06] Speaker 04:
Mexico has been able to ask.

[01:08:09] Speaker 04:
I apologize, Your Honor.

[01:08:35] Speaker 04:
There's just the procedures for a new comparability fund.

[01:08:38] Speaker 04:
They allow a new foreign commercial fishery wishing to export to the United States, and these are the procedures that go into place.

[01:08:45] Speaker 04:
There's nothing in the statute that prevents Mexico from.

[01:08:48] Speaker 04:
Mexico has asked for comparability findings in November 9th.

[01:08:55] Speaker 04:
They waived the findings.

[01:08:56] Speaker 03:
It's not clear from the regulations when those would go into effect.

[01:08:59] Speaker 03:
And so my question to you is, where does it tell me when those are going to go into effect?

[01:09:03] Speaker 03:
Because the language that I see talks about January 1st, 2022.

[01:09:07] Speaker 04:
The Federal Register notice says it's going to go into effect.

[01:09:12] Speaker 04:
Where?

[01:09:13] Speaker 04:
Where is that?

[01:09:30] Speaker 01:
This is all the 2016 regulation, August 15, 2016.

[01:09:34] Speaker 00:
Well, if you can't find it, you can't find it.

[01:09:51] Speaker 01:
Well, let me offer a suggestion here.

[01:09:54] Speaker 01:
The regulation that I think you're talking about, which is the one that put

[01:09:59] Speaker 01:
50 CFR 216.24h into the regulations has a date on the first page of the Federal Register entry, which is 54.290.

[01:10:12] Speaker 01:
That is January 1, 2017.

[01:10:20] Speaker 01:
Do you think that's the right date?

[01:10:30] Speaker 04:
I guess I see that this will remain valid until January 1st, 2022.

[01:10:38] Speaker 04:
There's nothing that says that this won't go into immediate effect, the way I'm reading the Federal Register notice.

[01:10:46] Speaker 01:
Are you looking at the same Federal Register notice that I am?

[01:10:50] Speaker 01:
81 fed reg 54 390.

[01:10:53] Speaker 01:
I'm sorry.

[01:10:54] Speaker 04:
I'm looking at 83 60 that might explain it well 60 I'm looking at 83 fed reg 62 844 the problem is that the one that's the date of March 16 2018 which is the most recent one has language

[01:11:14] Speaker 03:
It's 83 FR 11703 has language that says effective January 1st, 2022.

[01:11:22] Speaker 03:
And so even if something earlier says effective January 1st, 2017, that doesn't address the concern that I'm having right now about this language.

[01:11:31] Speaker 03:
in the March 16, 2018 federal register that refers to comparability findings being effective January 1, 2022.

[01:11:41] Speaker 04:
I'm sorry, Your Honor.

[01:11:41] Speaker 04:
I think I'm referring to the most recent federal register notice, which is 83 FR 62844.

[01:11:47] Speaker 04:
It's December 6, 2018.

[01:11:51] Speaker 04:
Are you referring to an earlier one?

[01:11:52] Speaker 03:
OK.

[01:11:54] Speaker 01:
And OK, I've got that in front of me.

[01:11:55] Speaker 01:
And that says, valid for the period of November 30,

[01:11:59] Speaker 01:
2018 through January 21st 2022.

[01:12:02] Speaker 01:
Yes.

[01:12:02] Speaker 01:
All right.

[01:12:03] Speaker 04:
I'm sorry.

[01:12:04] Speaker 00:
I'm very sorry for the I see that thank you Thank you so much your energy been very indulgent I want to give this miss wing the opportunity to address the argument about the plaintiff's commentary and restrict yourself only to that to that issue and

[01:12:23] Speaker 05:
Yes, Your Honor, when you refer to plaintiff's commentary, you're referring to the comments you made in the proposed rulemaking.

[01:12:31] Speaker 05:
Sure, Your Honor.

[01:12:32] Speaker 05:
As Your Honor knows, this is a new argument that the government's making for the first time.

[01:12:36] Speaker 00:
That's why we're giving you the opportunity to address it.

[01:12:39] Speaker 05:
Thank you, Your Honor.

[01:12:40] Speaker 05:
That statement is not at all inconsistent with the position that we're taking, that our comment letter stated that United States standards includes potential biological removal.

[01:12:49] Speaker 05:
And it's just about part, the potential biological removal level is sort of the core around which the statute is based, because it's looking at the current status of the population of the marine mammal species,

[01:13:01] Speaker 05:
and what is threatening its existence and how much man-made mortality can tolerate.

[01:13:08] Speaker 05:
And our comment letter is not at all inconsistent with that position.

[01:13:11] Speaker 05:
It says, US standards includes potential biological removal.

[01:13:15] Speaker 00:
All right.

[01:13:16] Speaker 00:
Thank you.

[01:13:16] Speaker 05:
Thank you, Your Honor.

[01:13:17] Speaker 00:
We thank the party for that.