US CBP requests judge reconsider order barring it from fining Bayside Program participants
U.S. Customs and Border Protection has requested that a judge reconsider her issuance of a temporary restraining order barring the federal agency from enforcing Jones Act-related fines against companies that used the Bayside Program to transport Alaska pollock to the U.S. East Coast.
In an 18 October filing, CBP asked U.S. District Court Judge for the District of Alaska Sharon L. Gleason to reverse her 8 October decision granting a preliminary injunction against it, which prohibits it from enforcing any Jones Act-related penalties against Seattle, Washington, U.S.A.-based American Seafoods subsidiaries Alaska Reefer Management LLC (ARM) and Kloosterboer International Forwarding LLC (KIF), or any other entity involved in the transportation of Alaska pollock via the controversial shipping route through Bayside, New Brunswick, Canada.
In August and September, CBP issued at least USD 350 million (EUR 294 million) in fines, claiming the Bayside Program violated the Jones Act, which prohibits the use of foreign vessels in the transportation of U.S.-caught seafood between U.S. ports. But the agency was challenged in court by ARM and KIF, and after initially being rebuffed by Gleason, they won in an injunction after persuading Gleason the threat of additional fines would cause irreparable harm to their businesses. Gleason’s decision freed up 26 million pounds of Alaska pollock had been stranded along the supply chain as companies scrambled to avoid CBP enforcement.
In its request for Gleason to reconsider, CBP said her order was “overbroad” and that it had been made as a result of “manifest error of the law or fact.”
“An overbroad injunction is an abuse of discretion,” CBP attorney Seth M. Beausang wrote in his request.
CBP warned Gleason of a looming deadline for a statue of limitation on their enforcement.
“Because of the applicable statute of limitations, the court’s overbroad injunction threatens to impair defendants’ ability to ever collect penalties for likely violations of the Jones Act,” Beausang wrote. “Plaintiffs have been engaged in this scheme since 2012. If defendants cannot issue and enforce Notices of Penalty for violations of the Jones Act relating to shipments of seafood products into the United States via the [Bayside Program] prior to 30 September, 2021, some claims may become time-barred because of the five-year statute of limitations.”
In response to the CBP’s request, Gleason has asked KIP and ARM for a rebuttal to be filed by Wednesday, 27 October. She previously set an expedited hearing process for the case, with briefs to be filed by mid-December and the closing of the merits briefing schedule by the end of the year.
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