Loper Bright Enterprises, Inc v. Gina Raimondo

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2022 Decided August 12, 2022

No. 21-5166

LOPER BRIGHT ENTERPRISES, INC., ET AL.,

APPELLANTS

CAPE TRAWLERS, INC., ET AL.,

APPELLEES

v.

GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS SECRETARY

OF COMMERCE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-00466)

Eric R. Bolinder argued the cause for appellants. With him

on the briefs was Ryan P. Mulvey.

Daniel Halainen, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Todd Kim, Assistant Attorney General, and Rachel Heron,

Attorney.

2

Before: SRINIVASAN*, Chief Judge, ROGERS and WALKER,

Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Dissenting opinion by Circuit Judge WALKER.

ROGERS, Circuit Judge: In implementing an Omnibus

Amendment that establishes industry-funded monitoring

programs in New England fishery management plans, the

National Marine Fisheries Service promulgated a rule that

required industry to fund at-sea monitoring programs. A group

of commercial herring fishing companies contend that the

statute does not specify that industry may be required to bear

such costs and that the process by which the Service approved

the Omnibus Amendment and promulgated the Final Rule was

improper. We affirm the district court’s grant of summary

judgment to the Service based on its reasonable interpretation

of its authority and its adoption of the Amendment and the Rule

through a process that afforded the requisite notice and

opportunity to comment.

I.

The Magnuson-Stevens Fishery Conservation and

Management Act of 1976 (the “Act”), 16 U.S.C. §§ 1801–

1884, in furtherance of its goal “to conserve and manage the

fishery resources . . . of the United States,” 16 U.S.C.

§ 1801(b)(1), authorizes the Secretary of Commerce, and the

National Marine Fisheries Service (“the Service”) as the

Secretary’s delegee, to implement a comprehensive fishery

management program, id. § 1801(a)(6); see id. §§ 1854,

*

Chief Judge Srinivasan was drawn to replace Judge Jackson,

now Justice Jackson, who heard argument and did not participate in

this opinion.

3

1855(d). Key to the statutory scheme is the promulgation and

enforcement of “fishery management plans.” Plans and

periodic amendments are developed by regional fishery

management councils, id. § 1852(h)(1), and include measures

“necessary and appropriate for the conservation and

management of the fishery,” id. § 1853(a)(1)(A). The proposing

council may include specific conservation and management

measures enumerated in 16 U.S.C. § 1853(b), as well as any

other measures “determined to be necessary and appropriate,”

id. § 1853(b)(14). In addition, the council may propose

implementing regulations. Id. § 1853(c).

Nine fisheries, including the Atlantic herring fishery, are

managed by the New England Fishery Management Council

(the “Council”). Id. § 1852(a)(1)(A), (h)(1). The Council

submitted the Omnibus Amendment to the Service, which

published a notice of availability and subsequently opened a

comment period. Notice of Availability, 83 Fed. Reg. 47,326

(Sept. 19, 2018); Notice of Proposed Rulemaking (“NPRM”),

83 Fed. Reg. 55,665 (Nov. 7, 2018). The Service approved the

Omnibus Amendment on December 18, 2018, and published

the Final Rule on February 7, 2020.1 The Amendment and the

Rule set out a standardized process to implement and revise

industry-funded monitoring programs in the New England

fisheries. Omnibus Amendment at v; Final Rule, 85 Fed. Reg.

at 7,414–17. Plan coverage requirements may be waived if

monitoring is unavailable or certain exemptions based on use

of monitoring equipment or catch size apply. See Final Rule,

85 Fed. Reg. at 7,417, 7,419–20.

1

Industry-Funded Monitoring: An Omnibus Amendment to the

Fishery Management Plans of the New England Fishery Management

Council (2018) (“Omnibus Amendment”); Magnuson-Stevens

Fishery Conservation and Management Act Provisions; Fisheries of

the Northeastern United States; Industry-Funded Monitoring Final

Rule, 85 Fed. Reg. 7,414 (Feb. 7, 2020) (“Final Rule”).

4

The monitoring program for the Atlantic herring fishery

covers 50 percent of herring trips. The 50-percent coverage

target is met through a combination of limited Service-funded

monitoring pursuant to the fishery management plan, see 16

U.S.C. § 1853(a)(11), and, for the difference between the target

and Service-funded monitoring, industry-funded monitoring,

with owners of vessels selected by the Service to carry an

industry-funded monitor and pay the associated costs (other

than administrative costs). Final Rule, 85 Fed. Reg. at 7,417.

The Service estimated industry costs to the herring fishery “at

$710 per day,” which in the aggregate could reduce annual

returns by “approximately 20 percent.” Id. at 7,418.

Appellants are commercial fishermen who regularly

participate in the Atlantic herring fishery. They filed a lawsuit

alleging, as relevant, that the Act did not authorize the Service

to create industry-funded monitoring requirements and that the

rulemaking process was procedurally irregular. The district

court ruled on the parties’ cross-motions for summary

judgment in the government’s favor. Loper Bright Enters., Inc.

v. Raimondo, 544 F. Supp. 3d 82, 127 (D.D.C. 2021).

II.

On appeal, appellants’ challenge to the Final Rule presents

the question how clearly Congress must state an agency’s

authority to adopt a course of action. This court is aware of the

Supreme Court precedent that Congress must clearly indicate

its intention to delegate authority to take action that will have

major and far-reaching economic consequences. Util. Air Regul.

Grp. v. EPA, 573 U.S. 302, 323–24 (2014). But that “major

questions doctrine” applies only in those “‘extraordinary cases’

in which the ‘history and breadth of the authority that [the

agency] has asserted,’ and the ‘economic and political

significance’ of that assertion, provide a ‘reason to hesitate

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before concluding that Congress’ meant to confer such

authority.” West Virginia v. EPA, 142 S. Ct. 2587, 2595 (2022)

(alteration in original) (quoting FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 159–60 (2000)). Here, the

Service’s challenged actions are distinct. Congress has

delegated broad authority to an agency with expertise and

experience within a specific industry, and the agency action is

so confined, claiming no broader power to regulate the national

economy. The court’s review thus is limited to the familiar

questions of whether Congress has spoken clearly, and if not,

whether the implementing agency’s interpretation is

reasonable. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council,

467 U.S. 837, 842–43 (1984). Although the Act may not

unambiguously resolve whether the Service can require

industry-funded monitoring, the Service’s interpretation of the

Act as allowing it to do so is reasonable.

A.

Appellants contend the Act permits the Service to require

at-sea monitors but prohibits any industry-funded monitoring

programs beyond three circumstances. The Service responds

that the Act unambiguously authorizes it to implement

industry-funded monitoring requirements. The court applies

the familiar two-step Chevron framework. See, e.g., Cigar

Ass’n of Am. v. FDA, 5 F.4th 68, 77 (D.C. Cir. 2021) (citing

Chevron, 467 U.S. at 842–43). At Chevron Step One, the

court, “employing traditional tools of statutory interpretation,”

evaluates “whether Congress has directly spoken to the precise

question at issue.” Chevron, 467 U.S. at 842–43 & n.9. “If the

intent of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. at 842–43.

If the statute considered as a whole is ambiguous, then at

Chevron Step Two the court defers to any “permissible

6

construction of the statute” adopted by the agency. Cigar Ass’n

of Am., 5 F.4th at 77 (quoting Chevron, 467 U.S. at 843).

At Chevron Step One, the court “begin[s] with the

language employed by Congress and the assumption that the

ordinary meaning of that language accurately expresses the

legislative purpose.” Engine Mfrs. Ass’n v. S. Coast Air Quality

Mgmt. Dist., 541 U.S. 246, 252 (2004) (internal quotation

marks omitted). Section 1853(b)(8) provides fishery management

plans may “require that one or more observers be carried on

board a vessel . . . for the purpose of collecting data necessary

for the conservation and management of the fishery.” That text

makes clear the Service may direct vessels to carry at-sea

monitors but leaves unanswered whether the Service must pay

for those monitors or may require industry to bear the costs of

at-sea monitoring mandated by a fishery management plan.

When Congress has not “directly spoken to the precise question

at issue,” the agency may fill this gap with a reasonable

interpretation of the statutory text. Chevron, 467 U.S. at 842.

The Service maintains that two additional features of the

Act, when paired with Section 1853(b)(8), unambiguously

establish authority to require industry-funded monitoring.

First, Section 1853 contains two “necessary and appropriate”

clauses that permit plans approved by the Service to “prescribe

such other measures, requirements, or conditions and restrictions

as are determined to be necessary and appropriate for the

conservation and management of the fishery.” Id. § 1853(b)(14);

see also id. § 1853(a)(1)(A) (mandating “measures . . . necessary

and appropriate for the conservation and management of the

fishery”). Second, the penalty provisions allow the Service to

impose permit sanctions for failure to make “any payment

required for observer services provided to or contracted by an

owner or operator,” id. § 1858(g)(1)(D), and make unlawful

various acts committed against “any data collector employed

7

by the [Service] or under contract to any person to carry out

responsibilities under [the Act],” id. § 1857(1)(L).

Taken together, these provisions of the Act signal the

Service may approve fishery management plans that mandate

at-sea monitoring for a statutory purpose. Section 1853(b)(8)

grants authority to require that vessels carry at-sea monitors.

Sections 1853(a)(1)(A) and (b)(14) grant authority to

implement measures “necessary and appropriate” — a

“capacious[]” grant of power that “leaves agencies with

flexibility,” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) —

to achieve the Act’s conservation and management goals. The

penalties in Sections 1857 and 1858 further indicate that

Congress anticipated industry’s use of private contractors. Still

unresolved, however, is the question of whether the Service

may require industry to bear the costs of at-sea monitoring

mandated by a fishery management plan.

When an agency establishes regulatory requirements,

regulated parties generally bear the costs of complying with

them. In Michigan v. EPA, 135 S. Ct. 2699, 2711 (2015), the

Supreme Court held that an agency implementing a policy

under wide-ranging “necessary and appropriate” authority

must consider the costs of compliance. That principle

presupposes that a “necessary and appropriate” clause vests an

agency with some authority to impose compliance costs. Here,

the Act’s national standards for fishery management plans

direct the Service to “minimize costs” of conservation and

management measures, 16 U.S.C. § 1851(a)(7), and to

“minimize adverse economic impacts” of such measures “on

[fishing] communities,” id. § 1851(a)(8). Those statutory

admonitions to reduce costs seem to presume that the Service

may impose some costs, as “minimize” does not mean

eliminate entirely. In addition, neither Section 1853(b)(8) nor

any other provision of the Act imposes a funding-related

8

restriction on the Service’s authority to require monitoring in a

plan. That also suggests the Act permits the Service to require

industry-funded monitoring.

The inference that the Service may require fishing vessels

to incur costs associated with meeting the 50-percent

monitoring coverage target is not, however, wholly unambiguous.

Nothing in the record definitively establishes whether at-sea

monitors are the type of regulatory compliance cost that might

fall on fishing vessels by default or whether Congress would

have legislated with that assumption. Absent such an

indication, the court cannot presume that Section 1853(b)(8),

even paired with the Act’s “necessary and appropriate” and

penalty provisions, unambiguously affords the Service power

to mandate that vessels pay for monitors. See N.Y. Stock Exch.

LLC v. SEC, 962 F.3d 541, 554 (D.C. Cir. 2020).

Appellants maintain that Sections 1821, 1853a(e), and

1862, which create monitoring programs with some similarities

to the Omnibus Amendment’s monitoring program, give rise

by negative implication to the inference that the Act

unambiguously deprives the Service of authority to create

additional industry-funded monitoring requirements. This

expressio unius reasoning, “when countervailed by a broad

grant of authority contained within the same statutory

scheme, . . . is a poor indicator of Congress’ intent.”

Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 697 (D.C. Cir.

2014). Examination of each of the three monitoring programs

further illustrates why appellants’ view is unfounded.

First, the limited access privilege program created in

Section 1853a(e) authorizes a council to establish “a program

of fees . . . that will cover the costs of management, data

collection and analysis, and enforcement activities.” It does

not list monitoring as a covered activity. See id. Although

9

monitoring might qualify as “data collection and analysis,” this

provision does not speak directly to this point, nor does it say

anything about who may fund observers. The canon that “the

specific governs the general,” RadLAX Gateway Hotel, LLC v.

Amalg. Bank, 566 U.S. 639, 645 (2012); see Genus Med. Techs.

LLC v. FDA, 994 F.3d 631, 638 (D.C. Cir. 2021), is unhelpful

to appellants in this context because there is no relevant

“conflict” between statutory terms that do not address the same

subject, Genus Med. Techs., 994 F.3d at 638–39. Section

1853a(e) therefore does not suggest any limitation on the

Service’s discretion to impose monitoring costs on industry

under Section 1853(b)(8).

Second, the North Pacific Council monitoring program

created by Section 1862, which “requires that observers be

stationed on fishing vessels” and “establishes a system . . . of

fees . . . to pay for the cost of implementing the plan,” 16

U.S.C. § 1862(a)(1)–(2), is similarly distinguishable. These

fees are to be “collected” by the Service, id. § 1862(b)(2), and

deposited into a North Pacific Fishery Observer Fund

established by the Act and “in the Treasury,” id. § 1862(d), for

disbursement to cover the costs of the monitoring program, see

id. § 1862(a), (e). This special fee program also does not suggest

that the Service lacks authority to require industry-funded

observers in all other fisheries. The fee program in Section 1862

institutes a different funding mechanism from that of the

Omnibus Amendment and Final Rule: under Section 1862,

money collected from regulated parties passes through

government coffers, while under the Omnibus Amendment and

Final Rule, regulated vessel owners pay third-party monitors

directly to supply services required for regulatory compliance.

Congress’s specific authorization of a single fishery program

funded by fees paid to the government does not unambiguously

demonstrate that the Act prohibits the Service from implementing

10

a separate program in which industry pays the costs of compliance

to service providers without any government pass-through.

Section 1821 creates a foreign fishing vessel monitoring

program, which authorizes the Secretary to impose a

“surcharge” to “cover all the costs of providing a United States

observer” aboard foreign vessels. Id. § 1821(h)(4). Generally,

observers on foreign vessels are funded through “surcharges [to

owners] collected by the Secretary” and deposited in an

earmarked U.S. government fund, id., a fee program roughly

analogous to the North Pacific Council monitoring program. In

the event of insufficient appropriations, however, Section 1821

establishes a “supplementary observer program” by which

“certified observers or their agents” are “paid by the owners

and operators of foreign fishing vessels for observer services.”

Id. § 1821(h)(6). This provision for industry-funded observers

in the foreign-fishing section of the Act, does not show that

Congress implicitly intended to preclude the Service from

requiring any other industry-funded monitoring. See Util. Air

Regul. Grp., 573 U.S. at 323–24. Its contingency plan for

monitoring in the foreign-fishing context has no unambiguous

consequences for the Service’s authority to implement

industry-funded monitoring in other contexts. By providing for

industry-funded observers as part of a contingency in the

foreign-fishing provisions of the Act, it appears doubtful that

Congress intended implicitly to preclude the Service from

requiring industry-funded monitoring in all other

circumstances. Further, the Act’s penalty provisions offset

negative inferences that might be drawn from Section 1821. See

16 U.S.C. §§ 1857(1)(L), 1858(g)(1)(D). Rather, these broad

provisions indicate that Congress anticipated the use of

privately retained contractors to comply with the Act’s

requirements. And the penalties in a broadly applicable section

of the Act appear to recognize the possibility of industry-

contracted and funded observers beyond the foreign-vessel

11

context. If Congress had intended for penalties associated with

industry-funded monitoring to apply only in the foreign fishing

context, the court would expect that Congress in the penalty

provisions would have specifically referenced foreign vessels

or included a cross-reference to the foreign fishing provision.

Finally, appellants claim that, given the substantial costs

of industry-funded monitoring to herring fishing companies,

“Congress would not have delegated ‘a decision of such

economic and political significance to an agency in so cryptic

a fashion’” as reliance on “necessary and appropriate”

authority. Appellants’ Br. 41 (quoting Brown & Williamson

Tobacco Corp., 529 U.S. at 160). Indeed, an agency may not

rely on a “necessary and appropriate” clause to claim implicitly

delegated authority beyond its regulatory lane or inconsistent

with statutory limitations or directives. See, e.g., Ala. Ass’n of

Realtors v. HHS, 141 S. Ct. 2485, 2487–88 (2021); Michigan,

135 S. Ct. at 2707–08; N.Y. Stock Exch., 962 F.3d at 554–55.

The Service does not do so here because its interpretation falls

within the boundaries set by the Act. Section 1853(b)(8)

expressly envisions that monitoring programs will be created

and, through its silence, leaves room for agency discretion as

to the design of such programs. In addition, at-sea monitoring

relates to the Service’s interest in fishery management and the

Act contains no bar on industry-funded monitoring programs,

instead permitting plans to “prescribe such other measures,

requirements, or conditions and restrictions” as are “necessary

and appropriate for the conservation and management of the

fishery,” id. § 1853(b)(14); see id. § 1853(a)(1)(A). The

Service’s understanding of Section 1853(b)(8) and the

“necessary and appropriate” clauses as encompassing industry-

funded monitoring thus does not exceed statutory limits.

Nonetheless, the text does not compel the Service’s

interpretation of the Act as granting authority by omission to

12

require industry-funded monitoring. Courts “construe [a

statute’s] silence as exactly that: silence.” EEOC v. Abercrombie

& Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015). Neither

Section 1853(b)(8) nor any other provision of the Act explicitly

allows the Service to pass on to industry the costs of monitoring

requirements included in fishery management plans. Nor do

the traditional tools of statutory interpretation provide another

basis on which to conclude that the Act unambiguously

supports the Service’s interpretation. Congress has thus

provided no wholly unambiguous answer at Chevron Step One

as to whether the Service may require industry-funded

monitoring in the Omnibus Amendment and Final Rule.

Although an agency’s interpretation need not be compelled by

the text for it to prevail at Step One, here, where there may be

some question as to Congress’s intent, particularly in view of

appellants’ cost objection, it behooves the court to proceed to

Step Two of the Chevron analysis.

Pursuant to Step Two, an agency’s interpretation can

prevail if it is a “reasonable resolution of an ambiguity in a

statute that the agency administers,” Michigan, 135 S. Ct. at

2707, and “the agency has offered a reasoned explanation for

why it chose that interpretation,” Cigar Ass’n of Am., 5 F.4th

at 77 (internal quotation marks omitted). Under this deferential

standard, the Service’s interpretation of the Act as authorizing

additional industry-funded monitoring programs is reasonable.

Section 1853(b)(8), paired with the Act’s “necessary and

appropriate” clauses, demonstrates that the Act considers

monitoring “necessary and appropriate” to further the Act’s

conservation and management goals. That conclusion provides

a reasonable basis for the Service to infer that the practical steps

to implement a monitoring program, including the choice of

funding mechanism and cost-shifting determinations, are

likewise “necessary and appropriate” to implementation of the

Act. See Final Rule, 85 Fed. Reg. at 7,422–23.

13

In addition, the Final Rule provides a reasoned explanation

for the Service’s interpretation. The Rule noted that Section

1853(b)(8) authorizes the Service to require at-sea monitors

“for the purpose of collecting data necessary for the

conservation and management of the fishery. Id. at 7,422

(quoting 16 U.S.C. § 1853(b)(8)). It further explained that

industry-funded monitoring to reach the new 50-percent

coverage target would best serve the Act’s conservation and

management goals. In particular, increased monitoring would

permit the Service “to assess the amount and type of catch, to

more accurately monitor annual catch limits, and/or provide

other information for management.” Id. at 7,423. The Rule

also stated that industry-funded monitoring was consistent with

other provisions of the Act that impose compliance costs on

industry. Id. at 7,422. This explanation reasonably tied the

industry-funded monitoring requirement to the Act’s purposes.

The Service’s interpretation of the Act is therefore owed

deference at Chevron Step Two.

Our dissenting colleague agrees that the Chevron

framework governs this case but disagrees about how it applies,

asserting that the court should reach Chevron Step Two only if

“the statute is ambiguous” and “Congress either explicitly or

implicitly delegated authority to cure that ambiguity.” Dis. Op.

at 5 (internal quotation marks omitted); see id. at 5 n.16. The

dissent suggests that “Congress’s silence on a given issue . . .

[generally] indicates a lack of authority,” id. at 6, but Chevron

instructs that judicial deference is appropriate “if the statute is

silent or ambiguous with respect to the specific issue,” 467

U.S. at 843 (emphasis added). The Supreme Court has

affirmed its Chevron analysis, see, e.g., City of Arlington v.

FCC, 569 U.S. 290, 296 (2013), and this court has

reacknowledged its binding force, see, e.g., Sierra Club v. EPA,

21 F.4th 815, 818–19 (D.C. Cir. 2021). The dissent’s reference

to recent cases in which the Supreme Court has not applied the

14

framework, see Dis. Op. at 5 & n.6, does not affect the

obligation of this court to “leav[e] to [the Supreme] Court the

prerogative of overruling its own decisions,” Agri Processor

Co. v. NLRB, 514 F.3d 1, 8 (D.C. Cir. 2008) (second alteration

in original) (quoting Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989)).

Not every statutory silence functions as an implicit

delegation. See U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566

(D.C. Cir. 2004). But Section 1853(b)(8)’s silence on the issue

of cost of at-sea monitoring provides no basis for applying

different standards of review here. Dis. Op. at 8–9. Under

Chevron, such silence in the context of a comprehensive

statutory fishery management program for the Service to

implement, 16 U.S.C. §§ 1801(a)(6), 1854, 1855(d), is a lawful

delegation, Chevron, 467 U.S. at 842–44. Furthermore, the

Supreme Court has instructed that a broad “necessary and

appropriate” provision, as appears in the Act, “leaves agencies

with flexibility” to act in furtherance of statutory goals,

Michigan, 135 S. Ct. at 2707, and here the Service pointed to

the Act’s conservation and management goals. Speculation

that the Service’s interpretation of its authority may lead to

exorbitant regulatory costs to industry, see Dis. Op. at 11,

overlooks Chevron Step Two’s reasonableness limitation. Nor,

in these circumstances, is Congress’s provision for industry-

funded monitoring in three unique situations properly

understood to eliminate the Service’s authority to create

industry-funded monitoring programs in any other situation,

see id. at 12–14. Under the well-established Chevron Step Two

framework, the Service’s interpretation of the Act to allow

industry-funded monitoring was reasonable.

15

B.

Appellants’ alternative challenge emphasizes that this

court reviews the grant of summary judgment de novo and the

Omnibus Amendment and Final Rule were enacted and

adopted pursuant to the Administrative Procedure Act

(“APA”). Under the APA’s deferential standard, the court

upholds agency action unless it is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A); see Cigar Ass’n of Am, 5 F.4th at 74.

“An agency is owed no deference,” however, “if it has no

delegated authority from Congress to act.” N.Y. Stock Exch.,

962 F.3d at 553. The court “determines whether the resulting

regulation exceeds the agency’s statutory authority” before it

determines whether the regulation “is arbitrary or capricious,”

id. at 546 (citing Sullivan v. Zebley, 493 U.S. 521, 528 (1990)),

as is addressed in subsection A.

Appellants urge that the Omnibus Amendment and Final

Rule are arbitrary and capricious, even if statutorily authorized,

“because they do not adequately account for the economic

cost” of industry-funded monitoring for participants in the

Atlantic herring fishery. Appellants’ Br. 55. To survive

arbitrary and capricious review, an agency “may not ‘entirely

fai[l] to consider an important aspect of the problem’ when

deciding whether regulation is appropriate.” Michigan, 135 S.

Ct. at 2707 (alteration in original) (quoting Motor Vehicle Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983)). Cost is such a factor in view of the Act’s

directive that fishery management plans minimize adverse

effects and costs to the fishing community wherever possible.

See 16 U.S.C. § 1851(a)(7), (8).

The record shows the Service took note of evidence that

the Atlantic herring industry-funded monitoring program costs

16

impacted vessels $710 per day and could reduce annual returns

by approximately 20 percent. Final Rule, 85 Fed. Reg. at

7,418. It evaluated the economic impacts of the program in

detail, see id. at 7,417–22, 7,428–29, responded to comments

raising cost-related concerns, see id. at 7,424–26, and described

its efforts to minimize economic impacts on herring fishery

participants, see id. at 7,429–30. For example, vessel owners

may request waivers of industry-funded monitoring coverage

on trips intending to land less than 50 metric tons of herring,

and midwater trawl vessels may comply with the requirement

through electronic monitoring instead of retaining a private

monitor. Id. at 7,430. Further, in the Rule, the Service

explained its choice of a 50-percent coverage target as

“balanc[ing] the benefit of additional monitoring with the costs

associated with additional monitoring,” id. at 7,425, and

adopted exemptions designed to address adverse effects on

smaller vessels, see id. at 7,419–20, 7,425, 7,430. So, the

Service’s decision to proceed with an industry-funded

monitoring requirement after extensive deliberations on the

question of cost was not arbitrary or capricious.

C.

Finally, appellants contend that promulgation of the

Omnibus Amendment and the Final Rule was procedurally

improper. Specifically, appellants challenge the Service’s

failure to comply with the Act’s timeline for review of the

Amendment, see 16 U.S.C. §§ 1853, 1854, and its use of

overlapping comment periods for the Amendment and the

Rule. Neither contention is persuasive.

That the Service did not follow the Act’s timeline provides

no basis for relief here. The Service published the notice of

availability for the Omnibus Amendment three days after the

statutory deadline, see 16 U.S.C. § 1854(a)(1)(A)–(B), (5), and

17

adopted the Final Rule more than a year after its comment

period ended, see Final Rule, 85 Fed. Reg. at 7,414, contrary to

the requirement that implementing regulations be promulgated

within thirty days of the close of their comment period, see 16

U.S.C. § 1854(b)(3). Procedural errors that are “technical” in

nature and “therefore harmless” are “not grounds for vacating

or remanding.” Int’l Bhd. of Teamsters v. U.S. Dep’t of

Transp., 724 F.3d 206, 217 (D.C. Cir. 2013); see Nevada v.

Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir. 2006). Appellants

do not identify any harm or prejudice resulting from the alleged

delay. In addition, “if a statute does not specify a consequence

for noncompliance with statutory timing provisions, the federal

courts will not in the ordinary course impose their own coercive

sanction.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 159

(2003) (internal quotation marks omitted); see Transp. Div. of

Int’l Ass’n of Sheet Metal, Air, Rail & Transp. Workers v. Fed.

R.R. Admin., 10 F.4th 869, 873–74 (D.C. Cir. 2021). The Act

does not penalize missed deadlines, and appellants do not point

to any basis for this court sua sponte to vacate the Final Rule.

Appellants’ suggestion that the Service “prejudged the

legality” of the Omnibus Amendment through its use of

overlapping comment periods with the Final Rule fares no

better. The Act requires that notice and comment on a plan

amendment and its accompanying regulations occur in tandem.

See 16 U.S.C. §§ 1853(c)(1), 1854(a)(1), (5), 1854(b)(1)(A).

Even if the statutory text did not control, the Service may

initiate implementing regulations of its own accord, subject to

APA notice-and-comment requirements that it “publish [a]

notice of proposed rulemaking in the Federal Register and . . .

accept and consider public comments on its proposal.”

Mendoza v. Perez, 754 F.3d 1002, 1020 (D.C. Cir. 2014)

(citing 5 U.S.C. § 553). Here, the Service set comment periods

of sixty and forty-five days, respectively, for the Omnibus

Amendment and the Final Rule and stated that it would

18

consider comments received on either document in its decision

to approve the Amendment. NPRM, 83 Fed. Reg. at 55,667.

The Act does not require publication of approval of plan

amendments. See 16 U.S.C. § 1854(a)(3). So, the Service

could address public comments on the Omnibus Amendment

upon promulgation of the Final Rule, see 85 Fed. Reg. at 7,422–

27. In view of Congress’s expectation that the Service would

consider comments on plan amendments and implementing

regulations at the same time, see 16 U.S.C. §§ 1853(c)(1),

1854(a)(1), (5), 1854(b)(1)(A), appellants fail to show a lack of

fair notice and a meaningful opportunity to comment as the

APA requires. See, e.g., Conn. Light & Power Co. v. Nuclear

Regul. Comm’n, 673 F.2d 525, 528 (D.C. Cir. 1982).

Accordingly, the court affirms the district court’s grant of

summary judgment to the Service and denial of summary

judgment to appellants.

WALKER, Circuit Judge, dissenting:

Did Congress authorize the National Marine Fisheries

Service to make herring fishermen in the Atlantic pay the

wages of federal monitors who inspect them at sea?

Congress unambiguously did not.

I

A fishery is both a group of fish and the fishing for that

group.1 The Magnuson-Stevens Act governs all fisheries in

federal waters.2 Its goal is to keep the fisheries healthy so that

Americans can enjoy the economic, recreational, and

nutritional benefits of a marine ecosystem.3

In pursuit of that goal, the Act allows the National Marine

Fisheries Service to approve fishery management plans, which

set rules for the fisheries they govern.4 Those plans are

developed by regional councils and include provisions

specifying things like the number of fish that will be harvested

in the fishery, the type of fishing gear to be used, and the

reporting methods required.5 When a plan needs updating, the

1

16 U.S.C. § 1802(13).

2

Id. § 1801 et seq.

3

Id. § 1801(b).

4

Id. §§ 1853, 1854(a). The Fisheries Service’s authority is delegated

from the Secretary of Commerce. Although the Appellees also

include the Secretary of Commerce, the Department of Commerce,

and officials in the National Oceanic and Atmospheric

Administration, I refer to the appellees as the “Fisheries Service”

because they are the most direct regulators in this matter.

5

Id. § 1853(a)(4)-(5), (a)(11), (b)(4). The regional councils were

established by the Magnuson-Stevens Act and are made up of

representatives from various interested sectors (commercial,

recreational, governmental, and academic). Id. § 1852.

2

relevant council submits a proposed amendment to the

Fisheries Service for review.6 The council may also propose

corresponding implementing regulations.7 Then the Fisheries

Service must publish those proposals, take comments, and

approve or disapprove of the proposals.8 If it approves, it will

promulgate them as final regulations.9

That’s what happened here. The New England Council

amended the Atlantic herring fishery management plan to

require that fishermen allow at-sea monitors on many of their

fishing trips, and the Fisheries Service approved its

amendment.10 The at-sea monitors are third-party inspectors

who go aboard fishing vessels to keep an eye on operations.

They track things like how many of which fish are being caught

with what gear. No one disputes that the Magnuson-Stevens

Act allows the Fisheries Service to impose this monitoring

requirement.

But providing a monitor for a days-long fishing voyage

can get expensive, and the Fisheries Service has had trouble

affording its preferred monitoring programs with just its

congressionally appropriated funds.11 Add to that a further

6

Id. § 1852(h)(1).

7

Id. § 1853(c).

8

Id. § 1854(a).

9

Id. § 1854(b)(3).

10

Magnuson-Stevens Fishery Conservation and Management Act

Provisions; Fisheries of the Northeastern United States; Industry

Funded Monitoring, 85 Fed. Reg. 7417 (Feb. 7, 2020).

11

Fisheries of the Northeastern United States; Atlantic Herring

Fishery; Amendment 5, 79 Fed. Reg. 8,786, 8,792-93 (Feb. 13, 2014)

(The Fisheries Service has been working since at least 2013 to find a

legal way to use industry funding to increase observer coverage as

3

problem for the Fisheries Service: Congress generally prohibits

an agency from collecting fees and keeping the money from

those fees for the agency’s own purposes.12 Instead, absent

express statutory authority to keep and spend that money,

agencies can only spend as much money as Congress

appropriates.13

Here, the Fisheries Service attempted a workaround. It

decided to make fishing companies, like Loper Bright

Enterprises, hire and pay for their own at-sea monitors. The

Fisheries Service estimates that for the Atlantic Herring

fishery, those monitors will cost more than $700 per day and

could reduce financial returns to the fishermen by twenty

percent.

The fishermen challenged the amendment and the

implementing regulations in district court and now appeal the

“[b]udget uncertainties prevent [the Fisheries Service] from being

able to commit to paying for increased observer coverage in the

herring fishery.”); see also Fisheries of the Northeastern United

States; Atlantic Mackerel, Squid, and Butterfish Fisheries;

Amendment 14, 79 Fed. Reg. 10,029, 10,038 (Feb. 24, 2014)

(Without industry funding, “increased observer coverage levels

would amount to an unfunded mandate, meaning regulations would

obligate [the Fisheries Service] to implement something it cannot

pay for.”).

12

31 U.S.C. § 3302(b) (With one unrelated exception, “an official or

agent of the Government receiving money for the Government from

any source shall deposit the money in the Treasury as soon as

practicable without deduction for any charge or claim.”).

13

Id. § 1341(a)(1) (“An officer or employee of the United States

Government or of the District of Columbia government may not—

(A) make or authorize an expenditure or obligation exceeding an

amount available in an appropriation or fund for the expenditure or

obligation”).

4

court’s decision granting summary judgment for the Fisheries

Service.14

I would reverse the judgment of the district court because

the Magnuson-Stevens Act unambiguously does not authorize

the Fisheries Service to force the fishermen to pay the wages

of federally mandated monitors.

II

Agencies are creatures of Congress, so they have no

authority apart from what Congress bestows.15

The Fisheries Service points to the Magnuson-Stevens Act

as its source of authority for requiring fishermen to pay for at-

sea monitors. We review the Fisheries Service’s interpretation

14

Loper Bright Enterprises, LLC v. Raimondo, 544 F. Supp. 3d 82,

127 (D.D.C. 2021).

15

Louisiana Public Service Commission v. FCC, 476 U.S. 355, 374

(1986) (“an agency literally has no power to act . . . unless and until

Congress confers power upon it”); Motion Picture Association of

America, Inc. v. FCC, 309 F.3d 796, 801 (D.C. Cir. 2002) (“An

agency may not promulgate even reasonable regulations that claim a

force of law without delegated authority from Congress.”); Railway

Labor Executives’ Association v. National Mediation Board, 29 F.3d

655, 670 (D.C. Cir.), amended, 38 F.3d 1224 (D.C. Cir. 1994)

(“Agencies owe their capacity to act to the delegation of authority,

either express or implied, from the legislature.”); Bowen v.

Georgetown University Hospital, 488 U.S. 204, 208 (1988) (“It is

axiomatic that an administrative agency’s power to promulgate

legislative regulations is limited to the authority delegated by

Congress.”).

5

of that statute under the two-step Chevron framework.16 First,

we ask “whether Congress has directly spoken to the precise

question at issue” or “left a gap for the agency to fill.”17 At that

stage, in searching for direction from Congress, we empty our

interpretive toolkit.18 And if it’s clear that the text does not

authorize the agency’s action, the analysis ends, and the agency

loses.19 Only if the statute is ambiguous, and only if “Congress

either explicitly or implicitly delegated authority to cure that

ambiguity,” do we proceed to Chevron’s second step and defer

to the agency’s reasonable interpretation of the ambiguity.20

16

Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-44 (1984).

But see Becerra v. Empire Health Foundation, 142 S. Ct. 2354

(2022) (not mentioning Chevron); National Federation of

Independent Business v. OSHA, 142 S. Ct. 661 (2022) (same); BNSF

Railway Co. v. Loos, 139 S. Ct. 893 (2019) (same); Pereira v.

Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring)

(“Given the concerns raised by some Members of this Court, it seems

necessary and appropriate to reconsider, in an appropriate case, the

premises that underlie Chevron and how courts have implemented

that decision.” (citations omitted)).

17

Chevron, 467 U.S. at 842-43.

18

Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1287 (D.C. Cir.

2000).

19

Chevron, 467 U.S. at 842-43; see also Virginia Uranium, Inc. v.

Warren, 139 S. Ct. 1894, 1900 (2019) (plurality opinion) (“in any

field of statutory interpretation, it is our duty to respect not only what

Congress wrote but, as importantly, what it didn’t write”).

20

Hearth, Patio & Barbecue Association v. United States

Department of Energy, 706 F.3d 499, 504 (D.C. Cir. 2013) (“The

ambiguity must be such as to make it appear that Congress either

explicitly or implicitly delegated authority to cure that ambiguity.

Mere ambiguity in a statute is not evidence of congressional

delegation of authority.” (quoting American Bar Association v.

Federal Trade Commission, 430 F.3d 457, 469 (D.C. Cir. 2005))).

6

Congress’s silence on a given issue does not automatically

create such ambiguity or give an agency carte blanche to speak

in Congress’s place.21 In fact, all else equal, silence indicates

a lack of authority.22

That means that when agency action is challenged, it is not

the challenger’s job to show that Congress has specifically

prohibited the challenged action.23 Holding challengers to that

burden would be “entirely untenable.”24 Instead, an agency

must positively demonstrate where Congress explicitly or

implicitly empowered it to act.

21

United States Telecom Association v. FCC, 359 F.3d 554, 566

(D.C. Cir. 2004) (“the failure of Congress to use ‘Thou Shalt Not’

language doesn’t create a statutory ambiguity of the sort that

triggers Chevron deference”); American Petroleum Institute v. EPA,

52 F.3d 1113, 1120 (D.C. Cir. 1995) (“we will not presume a

delegation of power based solely on the fact that there is not an

express withholding of such power”).

22

United States Telecom Association, 359 F.3d at 566 (“The

statutory ‘silence’ simply leaves that lack of authority untouched.”).

23

Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1082 (D.C.

Cir. 2017) (“The [agency] and the dissent seem to suggest that the

agency may take an action . . . so long as Congress has not prohibited

the agency action in question. That theory has it backwards as a

matter of basic separation of powers and administrative law. The

[agency] may only take action that Congress has authorized.”);

Railway Labor Executives’ Association, 29 F.3d at 671 (“Were

courts to presume a delegation of power absent an express

withholding of such power, agencies would enjoy virtually limitless

hegemony, a result plainly out of keeping with Chevron and quite

likely with the Constitution as well.”).

24

Motion Picture Association, 309 F.3d at 805-06; see also Gulf

Fishermens Association v. National Marine Fisheries Service, 968

F.3d 454, 456 (5th Cir. 2020), as revised (Aug. 4, 2020) (“Congress

does not delegate authority merely by not withholding it”).

7

III

Both sides agree that nowhere in the Magnuson-Stevens

Act does Congress explicitly empower the Fisheries Service to

require the Atlantic herring fishermen to fund an at-sea

monitoring program. So to prevail, the Fisheries Service must

point to some implicit delegation of that authority.

It has failed to do so. The Act unambiguously does not

authorize the Fisheries Service to require these fishermen to

pay the wages of at-sea monitors.25

A

The Fisheries Service first relies on 16 U.S.C.

§ 1853(b)(8), which provides that fishery management plans

may:

require that one or more observers be carried on

board a vessel of the United States engaged in fishing

for species that are subject to the plan, for the purpose

25

But see Relentless Inc. v. United States Department of Commerce,

561 F. Supp. 3d 226, 238 (D.R.I. 2021) (Another group of herring

fishermen challenged the same industry-funding provision, and

citing our district court, the District of Rhode Island found that the

Fisheries Service “reasonably interpreted” the Magnuson-Stevens

Act “to authorize” industry-funded monitors in the Atlantic herring

fishery.); Goethel v. Pritzker, No. 15-CV-497-JL, 2016 WL

4076831, at *6 (D.N.H. July 29, 2016), aff'd sub nom. Goethel v.

United States Department of Commerce., 854 F.3d 106, 108 (1st Cir.

2017) (The district court found that the Magnuson-Stevens Act

authorized a similar industry-funding scheme in a different fishery,

but the First Circuit affirmed on timeliness grounds, expressly

declining to decide whether industry funding violated the Act.).

8

of collecting data necessary for the conservation and

management of the fishery.26

That provision allows the agency to require that fishermen give

at-sea monitors a place on their vessels — the fishermen must

let the monitor “be carried.”

The Fisheries Service argues that such authority implicitly

includes the authority to make the fishermen pay the monitors’

wages because the wages are simply an incidental cost of

complying with the duty to allow monitors onboard. In the

agency’s eyes, it’s no different than, say, the cost of buying

statutorily-required fishing gear.

But that analogy doesn’t hold up.

First, the Act’s language meaningfully differs in its

treatment of gear and observers. Section 1853(b)(4) allows

plans to “require the use” of certain fishing gear. If the Act

similarly allowed plans to require the use of an at-sea monitor,

perhaps the Fisheries Service could argue that the cost of

procuring the monitor was incidental to that command. But

§ 1853(b)(8) doesn’t allow plans to require that fishermen use

observers. It only allows them to require that fishermen let

observers “be carried on board.”

A cost incidental to carrying an observer might include the

additional fuel costs of a marginally heavier boat or the

opportunity cost of giving to the monitor a bunk that would

otherwise be occupied by a working fisherman. Those are

costs that necessarily follow when a fisherman lets a monitor

on his boat. By contrast, there is no inherent, or even intuitive,

26

16 U.S.C. § 1853(b)(8) (emphasis added).

9

connection between paying a monitor’s wage and providing

him passage.

Second, inspection requirements and gear requirements

are different classes of impositions on regulated parties, and

they carry different expectations.27 Regulatory mandates, such

as gear requirements, often carry compliance costs. But the

Fisheries Service has identified no other context in which an

agency, without express direction from Congress, requires an

industry to fund its inspection regime.

Even if the Fisheries Service had found a few outliers, it is

not usual to require a regulated party to pay the wages of its

monitor when the statute is silent. Nor is it expected. In short,

it is not the type of thing that goes without saying. And here,

Congress didn’t say it.28

B

The Fisheries Service next asks us to find its authority in

§ 1853’s “necessary and appropriate” clauses.29 The first such

clause, § 1853(a)(1)(A), says that fishery management plans:

shall contain the conservation and management

measures, applicable to foreign fishing and fishing by

vessels of the United States, which are necessary

27

Those expectations, of course, inform our interpretation of how

“ordinary people understand the rules that govern them.” Niz-

Chavez v. Garland, 141 S. Ct. 1474, 1485 (2021).

28

See Mozilla Corp. v. FCC, 940 F.3d 1, 83 (D.C. Cir. 2019) (“No

matter how desirous of protecting their policy judgments, agency

officials cannot invest themselves with power that Congress has not

conferred.” (citations omitted)).

29

16 U.S.C. § 1853(a)(1)(A), (b)(14).

10

and appropriate for the conservation and

management of the fishery, to prevent overfishing and

rebuild overfished stocks, and to protect, restore, and

promote the long-term health and stability of the

fishery.30

And the second such clause, § 1853(b)(14), similarly says that

fishery management plans:

may prescribe such other measures, requirements,

or conditions and restrictions as are determined to

be necessary and appropriate for the conservation

and management of the fishery.31

The Fisheries Service argues that because the monitors’

data collection is important and because the Fisheries Service

can’t afford it, it is necessary and appropriate to make the

fishermen fund it.

For three reasons, I disagree.

First, context tells us that the Fisheries Service’s capacious

reading is wrong. Section 1853(a) says that fishery

management plans must, for example, describe the fishery,

specify a reporting methodology, and identify essential fish

habitats.32 And § 1853(b) says that fishery management plans

may, for example, designate protected coral zones, limit the

type and amount of fish to be caught, and assess the effect of

plan measures on certain fish stocks.33 Those and the other

measures surrounding the “necessary and appropriate”

30

Id. § 1853(a)(1)(A) (emphases added).

31

Id. § 1853(b)(14) (emphases added).

32

Id. § 1853(a)(2), (a)(11), (a)(7).

33

Id. § 1853(b)(2)(B), (b)(3)(A), (b)(9).

11

provisions “inform[] the grant of authority by illustrating the

kinds of measures that could be necessary” or appropriate.34

And none of the measures in those sections look anything like

the funding scheme that the Fisheries Service contemplates

here.

Second, the logic of the Fisheries Service’s argument

could lead to strange results.35 Could the agency require the

fishermen to drive regulators to their government offices if gas

gets too expensive? Having the agency officials at work may

be “appropriate” for “management of the fishery.” Yet I doubt

that Congress meant to allow for free fisherman chauffeurs.

Or what if Congress were to entirely defund the

compliance components of the Fisheries Service — could the

agency continue to operate by requiring the industry to fund a

legion of independent contractors to replace the federal

employees? That generous interpretation of “necessary and

34

Alabama Association of Realtors v. Department of Health &

Human Services, 141 S. Ct. 2485, 2488 (2021); see also Washington

State Department of Social & Health Services v. Guardianship

Estate of Keffeler, 537 U.S. 371, 384 (2003) (“under the established

interpretative canons of noscitur a sociis and ejusdem generis, where

general words follow specific words in a statutory enumeration, the

general words are construed to embrace only objects similar in nature

to those objects enumerated by the preceding specific words”

(cleaned up)); see also NASDAQ Stock Market, LLC v. SEC, 961

F.3d 421, 428 (D.C. Cir. 2020) (applying the canon to reject an

agency interpretation within the Chevron framework).

35

Merck & Co., Inc., v. United States Department of Health &

Human Services, 962 F.3d 531, 541 (D.C. Cir. 2020) (“the breadth

of the Secretary’s asserted authority is measured not only by the

specific application at issue, but also by the implications of the

authority claimed”).

12

appropriate” could undermine Congress’s power of the purse.36

So although the words “necessary and appropriate” may be

broad, they cannot be as limitless as the Fisheries Service

suggests.37

Third, if Congress had wanted to allow industry funding

of at-sea monitors in the Atlantic herring fishery, it could have

said so. But it instead chose to expressly provide for it in only

certain other contexts.38 The existence of specific provisions

36

See, e.g., John Holland & Laura Allen, An Analysis of Factors

Responsible for the Decline of the U.S. Horse Industry: Why Horse

Slaughter Is Not the Solution, 5 Kentucky Journal of Equine,

Agriculture, and Natural Resources Law 225, 225-27 (2013)

(Congress used its funding power in its effort to end commercial

horse slaughter by defunding the requisite ante-mortem

inspections.).

37

See Alabama Association of Realtors, 141 S. Ct. at 2489 (“It is

hard to see what measures this interpretation would place outside the

CDC’s reach, and the Government has identified no limit . . . beyond

the requirement that the CDC deem a measure necessary.” (cleaned

up)); Mozilla Corp., 940 F.3d at 75 (“even the allowance of wide

latitude in the exercise of delegated powers is not the equivalent of

untrammeled freedom to regulate activities over which the statute

fails to confer, or explicitly denies, Commission authority” (cleaned

up)).

38

16 U.S.C. § 1862(a) (North Pacific fishery), § 1821(h)(4) (foreign

fishing), § 1853a(e)(2) (limited access privilege programs). A

limited access privilege program is one in which an entity is

permitted to catch a specified portion of the total allowable catch for

all the fishermen per fishing season. Although the fee provision for

limited access privilege programs does not itself mention observers,

it nevertheless covers them. Section 1853a(c)(1)(H) instructs that a

limited access privilege program shall “include an effective system

for enforcement, monitoring, and management of the program,

including the use of observers,” and subsection (e) instructs that

13

for industry funding elsewhere — for only certain North

Pacific fisheries, foreign fishing, and limited access privilege

programs — suggests that the Fisheries Service can’t turn to a

catchall “necessary and appropriate” prerogative to implicitly

authorize industry funding in the Atlantic herring fishery.39

Take for example the provision governing the North

Pacific fisheries. The statute says that the relevant council

may, in certain North Pacific fisheries, “require[] that observers

be stationed on fishing vessels” and “establish[] a system . . .

of fees . . . to pay for the cost of implementing the plan.”40

That provision and the “necessary and appropriate”

provisions were enacted at the same time.41 It is hard to believe

that, when Congress decided to explicitly allow industry-

funding for observers in one way (fees) in one place (the North

Pacific), it also decided to silently allow all fisheries to fund

observers in any other way they choose.42 The plainer reading

“fees paid by limited access privilege holders . . . will cover the costs

of management, data collection and analysis, and enforcement

activities.”

39

Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (“We have long held

that where Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.” (cleaned up)).

40

16 U.S.C. § 1862(a).

41

Fishery Conservation Amendments of 1990, Pub. L. No. 101-627,

§ 109(b)(2), 104 Stat. 4436, 4448 (codified at 16 U.S.C.

§ 1853(b)(8)); id. § 118(a), 104 Stat. 4457 (codified at 16 U.S.C.

§ 1862).

42

Gross v. FBL Financial Services, Inc, 557 U.S. 167, 175 (2009)

(“negative implications raised by disparate provisions are strongest

where the provisions were considered simultaneously” (cleaned up)).

14

of the text is that Congress’s authorization for industry funding

was limited to what it expressly authorized.43

In its briefing, the Fisheries Service tried to explain away

the existence of this specific industry-funding provision by

arguing that Congress merely wanted to “mandate” a certain

solution in the North Pacific.44 But that’s not what Congress

did. The language of the fee provision in the North Pacific is

discretionary, not mandatory.45

The Fisheries Service also tries to draw a distinction

between (1) making fishermen pay for monitors through a

“fee” program like the program used in the North

Pacific — where the money goes to the government, and the

government then uses that money to pay the monitors’

wages — and (2) making the fishermen pay the monitors

directly, as here, without the government as a middleman.46

43

See NASDAQ Stock Market LLC v. SEC, No. 21-1167, 2022 WL

2431638, at *6 (D.C. Cir July 5, 2022) (Although our Circuit has, at

times, been skeptical of the expressio unius canon, when “a grant of

authority . . . reasonably impl[ies] the preclusion of alternatives, the

canon is a useful aide.” (cleaned up)).

44

Government Brief 44 (“In this situation, ‘the contrast between

Congress’s mandate in one context with its silence in another

suggests not a prohibition but simply a decision not to mandate any

solution in the second context, i.e., to leave the question to agency

discretion.’” (quoting Cheney Railroad Co. v Interstate Commerce

Commission, 902 F.2d 66, 69 (D.C. Cir. 1990))).

45

16 U.S.C. § 1862(a)(2) (“The North Pacific council may . . .

require[] that observers be stationed on fishing vessels” and

“establish[] a system . . . of fees . . . to pay for the cost of

implementing the plan.” (emphasis added)).

46

The Fisheries Service is not eager to highlight that the North

Pacific and limited-access schemes are not at all analogous to the

15

But if the Fisheries Service is correct that the two schemes

aren’t analogous, that shows the novelty of the Fisheries

Service’s scheme for the Atlantic herring fishery — a novelty

that cuts even more against the Fisheries Service’s reliance on

an authority either implied or provided by the catch-all

“necessary and appropriate” clauses. And on the other hand, if

the two schemes are analogous, that suggests that Congress

made a deliberate choice when it expressly approved

fishermen-funded monitoring only for the North Pacific,

foreign fishing, and limited access privilege programs — and

not here.47

scheme at issue here in at least one respect: their cost. In the North

Pacific, if fees are set as a fixed percentage, they may not exceed two

percent of the value of what the ship brings in on a trip. 16 U.S.C.

§ 1862(b)(2)(E). And in the context of limited access privilege

programs, the cap is three percent. Id. § 1854(d)(2)(B). But here,

the required payments to at-sea monitors could reduce the

fishermen’s financial returns by twenty percent.

47

To the extent there is a meaningful difference between paying fees

to the government and paying observers directly, the Magnuson-

Stevens Act already, explicitly, contemplates both. The Act creates

more traditional fee programs in the North Pacific, limited access

privilege programs, and foreign fishing generally. But when the

Fisheries Service has “insufficient appropriations” to provide full

observer coverage for foreign fishing, the Act calls for the

implementation of a supplementary observer program under which

“certified observers” are “paid by the owners and operators of

foreign fishing vessels for observer services.” 16 U.S.C.

§ 1821(h)(6)(C). So we know that Congress is (1) aware of the

possibility that appropriations are sometimes insufficient to cover

observer programs and (2) capable of creating industry-funding

schemes to resolve that dilemma. And the Fisheries Service itself

acknowledges both of those points in a document currently posted on

its website regarding limited access privilege programs. United

States Department of Commerce, National Oceanic and Atmospheric

16

* * *

Fishing is a hard way to earn a living.48 And Congress can

make profitable fishing even harder by forcing fishermen to

spend a fifth of their revenue on the wages of federal monitors

embedded by regulation onto their ships.

But until Congress does that, the Fisheries Service cannot.

I respectfully dissent.

Administration & National Marine Fisheries Service, The Design

and Use of Limited Access Privilege Programs 3 (Lee G. Anderson

& Mark C. Holliday eds., 2007),

https://www.fisheries.noaa.gov/resource/document/design-and-use-

limited-access-privilege-programs (last updated June 13, 2019) (“In

times of constant or shrinking federal budgets, obtaining the funds to

pay for new management plans is a real concern. Congress implicitly

took this into consideration by mandating a cost recovery program

for LAP programs. . . . Funds to cover the additional costs of the

LAP program will have to come from the current

appropriations. This means that there will have to be cuts

elsewhere. . . . The [councils’] decisions should ensure that the costs

of implementation and operation do not exceed the appropriated and

cost-recovered funds available. Regardless of whether it is a LAP

program, the alternative is the potential disapproval of a [fishery

management plan] (or part of it) where funds are insufficient to carry

out a management choice.” (emphasis added)).

48

Cf. Ernest Hemingway, The Old Man and the Sea (1952); Herman

Melville, Moby Dick (1851); The Perfect Storm (Warner Bros.

Pictures 2000); Billy Joel, The Downeaster “Alexa” (1990); The

Deadliest Catch (Discovery Channel 2005-present); Letter from

Vincent Van Gogh to Theo Van Gogh (on or about May 16,

1882), https://vangoghletters.org/vg/letters/let228/letter.html (“The

fishermen know that the sea is dangerous and the storm fearsome,

but could never see that the dangers were a reason to continue

strolling on the beach.” (emphasis omitted)).