Respondents Brief — Relentless, Inc., et al., Petitioners v. Department of Commerce, et al.

Supreme Court briefDec 15, 2023

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No. 22-1219

In the Supreme Court of the United States

RELENTLESS, INC., ET AL., PETITIONERS

DEPARTMENT OF COMMERCE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENTS

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD K IM

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

RACHEL HERON

DANIEL HALAINEN

DINA B. MISHRA

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

This Court granted the petition for a writ of certiorari “limited to Question 1 presented by the petition.”

2023 WL 6780370. As stated in the petition, Question 1

is as follows:

Whether the Court should overrule Chevron [U.S.A.

Inc. v. NRDC, Inc., 467 U.S. 837 (1984),] or at least

clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity

requiring deference to the agency.

Pet. i.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutes and regulations involved ............................................... 1

Statement:

A. Statutory background ............................................... 2

B. Regulatory background ............................................ 3

C. The present controversy .......................................... 5

Summary of argument ................................................................. 7

Argument:

I. The Court should not overrule Chevron ....................... 9

A. Chevron is a bedrock principle of

administrative law that sets clear ground rules

for all three branches .............................................. 10

1. Chevron provides a clear and appropriately

bounded framework for judicial review.......... 11

2. Chevron gives appropriate weight to

agency expertise, encourages national

uniformity in federal law, and keeps the

courts out of policymaking ............................... 15

3. Chevron is rooted in a long tradition of

deference to the views of the Executive ......... 21

B. Stare decisis principles weigh heavily in favor

of adhering to Chevron ........................................... 27

1. Congress has legislated against the

backdrop of Chevron for decades and could

alter it at any time ............................................ 28

2. Overruling Chevron would upset reliance

interests ............................................................. 31

3. As refined by this Court, Chevron is a

workable and familiar framework that

remains vitally important ................................ 34

C. Petitioners’ remaining arguments lack merit ...... 36

1. Chevron does not violate Article III or due

process ............................................................... 36

(III)

Table of Contents—Continued:

Page

2. Chevron is consistent with the APA ............... 41

II. The judgment should be affirmed ................................. 45

Conclusion ................................................................................... 49

Appendix A — Statutory and regulatory provisions ............ 1a

Appendix B — List of Chevron cases ................................... 68a

TABLE OF AUTHORITIES

Cases:

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 (1999) ......... 28

Auer v. Robbins, 519 U.S. 452 (1997) .................................... 9

Barnhart v. Walton, 535 U.S. 212 (2002) ............................ 18

Batterton v. Francis, 432 U.S. 416 (1977) ........................... 13

Bowsher v. Synar, 478 U.S. 714 (1986)................................ 37

Brown v. United States, 113 U.S. 568 (1885) ...................... 23

Caperton v. A.T. Massey Coal Co., Inc.,

556 U.S. 868 (2009).............................................................. 39

Chevron U.S.A. Inc. v. NRDC, Inc.,

467 U.S. 837 (1984)................ 5, 7, 9-14, 16, 19-21, 26, 32, 36

City of Arlington v. FCC,

569 U.S. 290 (2013)..................... 13, 14, 18, 19, 21, 28, 37, 41

Clarke v. Securities Indus. Ass’n,

479 U.S. 388 (1987).............................................................. 27

Cuozzo Speed Techs., LLC v. Lee,

579 U.S. 261 (2016).............................................................. 37

Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840) ............. 24

Douglas v. Seacoast Prods., Inc.,

431 U.S. 265 (1977)................................................................ 2

EPA v. National Crushed Stone Ass’n,

449 U.S. 64 (1980) ............................................................... 25

Edwards’ Lessee v. Darby, 25 U.S. (12 Wheat) 206

(1827) .............................................................................. 21, 22

Cases—Continued:

Page

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016).............................................................. 15

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009).............................................................. 11

Environmental Def. Fund v. NRC,

902 F.2d 785 (10th Cir. 1990) ............................................. 17

Gray v. Powell, 314 U.S. 402 (1941) ............................... 24, 25

Holder v. Martinez Gutierrez, 566 U.S. 583 (2012) ........... 27

Household Credit Servs., Inc. v. Pfennig,

541 U.S. 232 (2004).............................................................. 27

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) ..................... 27

INS v. St. Cyr, 533 U.S. 289 (2001) ...................................... 14

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928).............................................................. 38

Jacobs v. Prichard, 223 U.S. 200 (1912) ........................ 22, 23

Johnson v. Towsley, 80 U.S. (13 Wall.) 72 (1871) ............... 24

Kimble v. Marvel Entm’t, LLC,

576 U.S. 446 (2015).................................................. 29, 31, 34

King v. Burwell, 576 U.S. 473 (2015) ................................... 15

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ............. 9, 10, 14, 16,

17, 19, 27-29, 31, 34, 36, 41, 43

LaRoque v. Holder, 239 U.S. 62 (1915) ............................... 23

Long Island Care at Home, Ltd. v. Coke,

551 U.S. 158 (2007).................................................. 20, 27, 31

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)..... 37, 38

Martin v. OSHRC, 499 U.S. 144 (1991)............................... 17

Massachusetts v. Morash, 490 U.S. 107 (1989) .................. 27

Mayo Found. for Med. Educ. & Res. v. United

States, 562 U.S. 44 (2011) ............................................. 11, 27

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014)................................................... 27-29, 36

Mitchell v. Budd, 350 U.S. 473 (1956) ................................. 25

Cases—Continued:

Page

NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111 (1944) ........... 25

NLRB v. Noel Canning, 573 U.S. 513 (2014) ..................... 39

NLRB v. United Food & Commercial Workers

Union, 484 U.S. 112 (1987) ................................................ 27

National Ass’n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644 (2007) ............................................. 27

National Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) ............................ 32, 33

National Lead Co. v. United States,

252 U.S. 140 (1920)........................................................ 22, 23

Negusie v. Holder, 555 U.S. 511 (2009) ............................... 39

Otsuka Pharm. Co. v. Price,

869 F.3d 987 (D.C. Cir. 2017) ............................................. 16

Pauley v. BethEnergy Mines, Inc.,

501 U.S. 680 (1991).................................................. 14, 18, 27

Payne v. Tennessee, 501 U.S. 808 (1991) ............................ 31

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) ................................................... 18, 38, 42

Pittston Stevedoring Corp. v. Dellaventura,

544 F.2d 35 (2d Cir. 1976), aff ’d,

432 U.S. 249 (1977).............................................................. 26

Russello v. United States, 464 U.S. 16 (1983) ..................... 42

Rust v. Sullivan, 500 U.S. 173 (1991) .................................. 27

Schell’s Executors v. Fauché, 138 U.S. 562 (1891) ............. 23

Sebelius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145 (2013).............................................................. 27

Smiley v. Citibank (S.D.), N.A.,

517 U.S. 735 (1996)............................................ 13, 16, 27, 33

Udall v. Tallman, 380 U.S. 1 (1965) .................................... 25

United States v. Alabama Great S. R.R.,

142 U.S. 615 (1892).............................................................. 23

United States v. Boyle, 469 U.S. 241 (1985) ........................ 27

VII

Cases—Continued:

Page

United States v. City of Fulton, 475 U.S. 657 (1986) ......... 27

United States v. Dickson, 40 U.S. (15 Pet.) 141 (1841) ...... 24

United States v. Eurodif S.A., 555 U.S. 305 (2009) ............ 27

United States v. Macdaniel, 32 U.S. (7 Pet.) 1 (1833) ....... 22

United States v. Mead Corp.,

533 U.S. 218 (2001).................................................. 15, 24, 33

United States v. Moore, 95 U.S. 760 (1878) .................. 22, 23

United States v. State Bank of N.C., 31 U.S. (6 Pet.)

29 (1832) ............................................................................... 22

United States v. Vowell, 9 U.S. (5 Cranch) 368 (1809) ....... 22

Utility Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014).............................................................. 38

Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467 (2002) ........ 20

West Virginia v. EPA, 142 S. Ct. 2587 (2022) .................... 15

Young v. Community Nutrition Inst.,

476 U.S. 974 (1986)........................................................ 27, 32

Zenith Radio Corp. v. United States,

437 U.S. 443 (1978).............................................................. 25

Constitution, statutes, regulations, and rule:

U.S. Const.:

Art. I ................................................................................. 38

Art. III ............................................................... 9, 24, 36-39

Administrative Procedure Act, ch. 324,

60 Stat. 243-244 ................................................................... 41

5 U.S.C. 553(b)(A) ........................................................... 42

5 U.S.C. 701 et seq. ............................................................ 8

5 U.S.C. 706 ....................................................... 9, 41-43, 1a

5 U.S.C. 706(2)(E) ........................................................... 39

5 U.S.C. 706(2)(F) ............................................................ 42

Clean Air Act, 42 U.S.C. 7401 et seq. ................................... 12

42 U.S.C. 7522(a) ............................................................. 13

VIII

Statutes, regulations, and rule—Continued:

Page

Fishery Conservation Amendments of 1990,

Pub. L. No. 101-627, 104 Stat. 4436:

§ 109(b)(2), 104 Stat. 4448 ............................................... 48

§ 118(a), 104 Stat. 4457-4459 .......................................... 48

Magnuson-Stevens Fishery Conservation and

Management Act, 16 U.S.C. 1801 et seq. ............................ 2

16 U.S.C. 1801(a)(6) ..................................................... 2, 3a

16 U.S.C. 1801(a)(8) ..................................................... 3, 4a

16 U.S.C. 1802(31) ................................................. 3, 46, 8a

16 U.S.C. 1802(39) ............................................................. 2

16 U.S.C. 1851(a)(2) ........................................................... 3

16 U.S.C. 1852(a) ............................................................... 2

16 U.S.C. 1852(b) ............................................................... 2

16 U.S.C. 1852(h)(1) .......................................................... 2

16 U.S.C. 1853(a)(1)(A) ............................................. 2, 12a

16 U.S.C. 1853(a)(5) ................................................... 3, 13a

16 U.S.C. 1853(b)(8) ............................................ 3, 46, 20a

16 U.S.C. 1853(b)(14) ................................................ 2, 20a

16 U.S.C. 1853(c) ....................................................... 2, 21a

16 U.S.C. 1854 ........................................................ 2, 3, 22a

16 U.S.C. 1854(a)(3) ................................................... 3, 23a

16 U.S.C. 1854(b)(3) .................................................. 3, 24a

16 U.S.C. 1855(d) ................................................... 2, 3, 25a

16 U.S.C. 1857(1)(D)-(F) ................................................. 47

16 U.S.C. 1857(1)(L) ........................................................ 47

16 U.S.C. 1858(g)(1) .......................................................... 3

16 U.S.C. 1858(g)(1)(D) ......................................... 6, 46, 47

16 U.S.C. 1881b(c) ........................................................... 47

28 U.S.C. 2254(d)(1) ............................................................... 39

50 C.F.R.:

Section 648.11(g)(4)(iii)(A) ........................................ 5, 38a

Regulations and rule—Continued:

Page

Section 648.11(m)(1)(ii)(D) ....................................... 4, 60a

Section 648.11(m)(4)(i) .............................................. 4, 63a

Section 648.11(m)(4)(ii) ............................................. 4, 63a

Section 648.11(m)(4)(iii) ............................................ 4, 64a

Sup. Ct. R. 14(a) ..................................................................... 46

Miscellaneous:

Administrative Procedure Act: Legislative History,

S. Doc. No. 248, 79th Cong., 2d Sess. (1946) .................... 43

Kent Barnett et al., Administrative Law’s Political

Dynamics, 71 Vand. L. Rev. 1463 (2018) ............. 20, 29, 34

Stephen G. Breyer et al., Administrative Law and

Regulatory Policy (5th ed. 2002) ...................................... 29

92 Cong. Rec. 6554 (1946) ..................................................... 44

Kenneth Culp Davis, Administrative Law (1951) ....... 25, 45

John Dickinson, Administrative Procedure Act:

Scope and Grounds of Broadened Judicial Review,

33 A.B.A. J. 434 (1947)........................................................ 44

55 Fed. Reg. 4839 (Feb. 12, 1990) ........................................ 48

83 Fed. Reg. 47,326 (Sept. 19, 2018) ...................................... 3

85 Fed. Reg. 7414 (Feb. 7, 2020) ...................................... 4, 17

Final Report of Attorney General’s Committee on

Administrative Procedure (1941), reprinted in

Administrative Procedure in Government

Agencies, S. Doc. No. 8, 77th Cong.,

1st Sess. (1941) .............................................................. 43, 44

Craig Green, Chevron Debates and the

Constitutional Transformation of Administrative

Law, 88 Geo. Wash. L. Rev. 654 (2020) ............................ 23

H.R. Rep. No. 622, 114th Cong., 2d Sess. (2016) ................ 30

Louis L. Jaffe, Judicial Review,

64 Harv. L. Rev. 1233 (1951) ............................................. 45

Miscellaneous—Continued:

Page

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118 (2016) ................ 20

Ronald M. Levin:

The APA and the Assault on Deference,

106 Minn. L. Rev. 125 (2021) .................................... 45

Identifying Questions of Law in Administrative

Law, 74 Geo. L.J. 1 (1985)......................................... 37

Warren G. Magnuson, The Fishery Conservation

and Management Act of 1976, 52 Wash. L. Rev. 427

(1977) ...................................................................................... 2

John F. Manning, Chevron and the Reasonable

Legislator, 128 Harv. L. Rev. 457 (2014) .......................... 41

Thomas W. Merrill, Judicial Deference to Executive

Precedent, 101 Yale L.J. 969 (1992) .................................. 26

Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1 (1983) ................... 22, 37, 38

NOAA Fisheries, Status of Industry Cost Reimbursement for Atlantic Herring Industry-Funded

Monitoring (Sept. 7, 2023), perma.cc/8J62-3376 ............... 5

Richard J. Pierce, Jr., Distinguishing Legislative

Rules from Interpretative Rules, 52 Admin. L. Rev.

547 (2000) ............................................................................. 30

S. Rep. No. 515, 94th Cong., 1st Sess. (1975) ........................ 2

S. Rep. No. 752, 79th Cong., 1st Sess. (1945) ................ 43, 44

Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511 ............ 26

Separation of Powers Restoration Act of 2023,

H.R. 288, 118th Cong. § 2(3) (as passed by House,

June 15, 2023) ...................................................................... 30

Separation of Powers Restoration Act of 2016,

H.R. 4768, 114th Cong. § 2 (2016) ..................................... 30

Miscellaneous—Continued:

Page

Peter L. Strauss, “Deference” is Too Confusing—

Let’s Call Them “Chevron Space” and “Skidmore

Weight,” 112 Colum. L. Rev. 1143 (2012) ......................... 19

Cass R. Sunstein, Chevron As Law,

107 Geo. L.J. 1613 (2019) ....................................... 29, 31, 38

U.S. Dep’t of Justice, Attorney General’s Manual on

the Administrative Procedure Act (1947) ........................ 43

In the Supreme Court of the United States

No. 22-1219

RELENTLESS, INC., ET AL., PETITIONERS

DEPARTMENT OF COMMERCE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-34a)

is reported at 62 F.4th 621. The opinion of the district

court (Pet. App. 35a-65a) is reported at 561 F. Supp. 3d

226.

JURISDICTION

The judgment of the court of appeals was entered on

March 16, 2023. The petition for a writ of certiorari was

filed on June 14, 2023, and granted on October 13, 2023.

The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTES AND REGULATIONS INVOLVED

Pertinent statutes and regulations are reprinted in

the appendix to this brief. App., infra, 1a-67a.

(1)

STATEMENT

A. Statutory Background

1. Commercial fishing vessels have long been subject to “comprehensive federal regulation.” Douglas v.

Seacoast Prods., Inc., 431 U.S. 265, 272 (1977). Before

1976, however, that regulation consisted of a “patchwork” of statutes and international agreements, Warren G. Magnuson, The Fishery Conservation and Management Act of 1976, 52 Wash. L. Rev. 427, 432 (1977),

which had failed to prevent “massive overfishing” in

U.S. coastal waters, S. Rep. No. 515, 94th Cong., 1st

Sess. 4 (1975).

Congress responded by enacting the MagnusonStevens Fishery Conservation and Management Act

(Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. The Act

declares that a “national program for the conservation

and management of the fishery resources of the United

States is necessary to prevent overfishing” and “to realize the full potential of the Nation’s fishery resources.”

16 U.S.C. 1801(a)(6). The Secretary of Commerce and,

by delegation, the National Marine Fisheries Service

(NMFS) administer this national program, with input

from eight regional fishery management councils that

advise the Secretary in preparing and revising “fishery

management plan[s].” 16 U.S.C. 1852(h)(1); see 16

U.S.C. 1802(39), 1852(a)-(b), 1854, 1855(d). Among

other things, plans must contain the measures “necessary and appropriate * * * to prevent overfishing and

rebuild overfished stocks, and to protect, restore, and

promote the long-term health and stability of the fishery.” 16 U.S.C. 1853(a)(1)(A); see 16 U.S.C. 1853(b)(14).

A regional council’s proposed plan and any proposed

implementing regulations are submitted to NMFS and

published for public comment. See 16 U.S.C. 1853(c)

(council may propose regulations “necessary or appropriate” to implement a plan); 16 U.S.C. 1854 (agency’s

role). NMFS’s approval is generally required for

any plan or amendment, and NMFS promulgates and

enforces any implementing regulations. 16 U.S.C.

1854(a)(3) and (b)(3); see 16 U.S.C. 1855(d) (authorizing

agency to adopt “such regulations * * * as may be necessary” to carry out a plan or “any other provision” of

the Act).

2. This case concerns the Magnuson-Stevens Act’s

provisions for the collection of reliable data, which Congress found “essential” to the conservation and management of fishery resources. 16 U.S.C. 1801(a)(8); see

16 U.S.C. 1851(a)(2), 1853(a)(5). To collect necessary

data, the Act provides that a fishery management plan

may “require that one or more observers be carried on

board” any domestic vessel “engaged in fishing for species that are subject to the plan.” 16 U.S.C. 1853(b)(8).

The Act defines “observer” to mean “any person required

or authorized to be carried on a vessel for conservation

and management purposes,” 16 U.S.C. 1802(31), including private parties hired to collect data. When “any

payment required for observer services provided to or

contracted by [a vessel] owner * * * has not been paid,”

the Act authorizes NMFS to impose sanctions on the

owner. 16 U.S.C. 1858(g)(1).

B. Regulatory Background

In 2017, after years of development and public consultation, the New England Fishery Management

Council proposed to amend the Atlantic herring fishery

management plan to require regulated vessels to carry

third-party monitors on some fishing trips to collect

data. 83 Fed. Reg. 47,326, 47,326 (Sept. 19, 2018). After

notice and comment, NMFS approved the amendment

in 2018 and issued final implementing regulations in

2020. 85 Fed. Reg. 7414, 7414 (Feb. 7, 2020).

The plan amendment established a 50% “coverage target” for monitoring on certain herring fishing trips.

85 Fed. Reg. at 7417. That target could be satisfied by

government-funded monitoring that already occurs under

a separate program. Ibid. But if existing governmentfunded monitoring did not meet the 50% target, thirdparty monitoring would fill the gap, ibid., with a vessel’s

owner “arrang[ing] for monitoring by” an approved service provider and “pay[ing]” the provider for services

rendered, 50 C.F.R. 648.11(m)(4)(i) and (iii).

NMFS is responsible for paying the program’s “administrative costs”—including the cost of training and

certifying monitors, evaluating their performance, and

processing collected data. 85 Fed. Reg. at 7414. In addition, the 2020 rule provides for waivers, exemptions,

and alternatives designed to make any third-party monitoring “affordable.” Id. at 7417. For example, observer

services are not required for trips intended to land less

than 50 metric tons of Atlantic herring or when monitors

are unavailable. 50 C.F.R. 648.11(m)(1)(ii)(D) and (4)(ii).

NMFS found that those measures “balance[d]” the

costs and “benefit[s] of additional monitoring.” 85 Fed.

Reg. at 7425. The agency acknowledged that prior analyses had suggested that monitoring costs could reduce

annual returns-to-owner for covered vessels by “up to

20 percent.” Id. at 7420. But the agency found that the

waivers and exemptions available under the final rule

would considerably lower expected costs. See, e.g., id.

at 7425-7426, 7430. For example, taking into account

those exemptions, the agency estimated a median impact on returns-to-owner of 2.5% for the type of fishing

petitioners engage in involving vessels equipped with

small-mesh bottom trawl gear. C.A. App. A566; see Pet.

App. 8a, 15a n.5.

In practice, the 2020 rule’s monitoring provisions

have had no financial impact on regulated vessels. NMFS

began operating the program in July 2021 and ceased

monitoring coverage under it in April 2023, when the

agency no longer had available funds for program costs.

NOAA Fisheries, Status of Industry Cost Reimbursement for Atlantic Herring Industry-Funded Monitoring (Sept. 7, 2023), perma.cc/8J62-3376. Although not

required to do so, NMFS had allowed the owners of affected vessels to seek federal reimbursement for the

monitoring costs they had incurred when the program

was operational, and NMFS ultimately “reimburse[d]

100 percent of the industry’s at-sea monitoring costs”

incurred under the rule.

Ibid.; see 50 C.F.R.

648.11(g)(4)(iii)(A).

C. The Present Controversy

1. Petitioners are commercial fishing ventures with

permits to fish in the Atlantic herring fishery. Compl.

¶¶ 9-11. They challenged the rule, alleging as relevant

here that NMFS lacked statutory authority to require

vessel owners to pay for third-party monitoring services. Compl. ¶¶ 79-97.

2. The district court rejected petitioners’ challenge.

Pet. App. 35a-65a. Applying Chevron U.S.A. Inc. v.

NRDC, Inc., 467 U.S. 837 (1984), the court determined

that the Magnuson-Stevens Act authorizes NMFS to

require vessel owners to pay for third-party monitoring.

Pet. App. 41a-51a.

3. The court of appeals affirmed. Pet. App. 1a-34a.

The court held that the agency’s interpretation is “at

the very least * * * certainly reasonable” and found it

unnecessary to classify that holding “as a product of

Chevron step one or step two.” Id. at 22a.

As the court of appeals explained, “Congress expressly authorized NMFS to require vessels to carry

monitors,” Pet. App. 22a—including “privately contracted monitors,” who the court found are not “ ‘federal

officers,’ ” id. at 21a; see id. at 12a (observing that the

statutory definition of “observer[]” encompasses nongovernmental at-sea monitors). The court reasoned

that the “default norm” in federal law is that the government is not obligated to pay the costs that regulated

parties incur in “complying with properly enacted regulations.” Id. at 13a (citation omitted). And the court

emphasized that “the statutory text provides affirmative confirmation that Congress presumed that vessel

owners would bear the cost of complying with monitoring requirements,” id. at 18a, because Congress gave

NMFS authority to sanction vessel owners who have

“ ‘contracted’ ” for required “ ‘observer services’ ” and

failed to timely pay the third-party monitors, id. at 15a16a (quoting 16 U.S.C. 1858(g)(1)(D)).

The court of appeals rejected petitioners’ invitation

to draw a negative inference from other provisions in

the Act authorizing NMFS to collect “fees * * * to

cover certain observer costs.” Pet. App. 17a. The court

reasoned that the fee-based programs “do not present

apples-to-apples comparators” because they involve

fees “paid into government coffers” and used to “fund

agency programs that include more than direct observer costs.” Id. at 18a-19a. And petitioners’ reliance

on the fee-based programs could not explain the statutory authorization to sanction owners for untimely payment of non-governmental monitors—a “penalty [that]

would make no sense if Congress did not anticipate that

[vessel owners] would be paying the observers” directly. Id. at 16a.

SUMMARY OF ARGUMENT

I. The Court should not overrule Chevron U.S.A.

Inc. v. NRDC, Inc., 467 U.S. 837 (1984). 1

A. Chevron is a bedrock principle of administrative

law that provides an appropriately tailored framework for

judicial review of an agency’s interpretation of a statute

it administers. Under Chevron, Congress is generally

presumed to have allocated interpretive authority to the

agency to resolve a statutory ambiguity or fill a gap,

within reasonable bounds. Before any deference under

Chevron is appropriate, a reviewing court must exhaust

the traditional tools of statutory construction to determine if Congress has spoken to the issue. Chevron

comes into play only when a court determines that Congress has not itself clearly answered an interpretive

question. In that circumstance, it is entirely sensible to

presume that Congress intended its vesting of authority

in the agency—and the agency’s reasonable exercise of

that authority—to be given effect by the courts.

Chevron gives appropriate weight to the expertise,

often of a scientific or technical nature, that federal

agencies can bring to bear in interpreting federal statutes. Chevron also promotes national uniformity in the

Because the question presented here is identical to the question

presented in Loper Bright Enterprises v. Raimondo, No. 22-451

(oral argument scheduled for Jan. 17, 2024), much of this brief is

substantially similar to the government’s brief in that case. This

brief also responds to additional arguments made by the Relentless

petitioners. And for the Court’s convenience, this brief identifies

arguments made only by the Loper petitioners and provides crossreferences to the government’s Loper brief for responses to those

arguments, which are not repeated here. See nn.4-6, infra.

administration of federal law and greater political accountability for regulatory policy. When a statutory

provision is genuinely susceptible of multiple reasonable readings, choosing among those readings often

turns on a policy judgment that Congress has vested in

the agency and that is properly left to the political

Branches.

Contrary to petitioners’ suggestion, Chevron is also

rooted in a long tradition of judicial deference to reasonable Executive interpretations. That tradition preceded the enactment of the Administrative Procedure

Act (APA), 5 U.S.C. 701 et seq., and continued after it.

At no point in American history have federal courts applied an invariable rule of de novo resolution of all questions of law.

B. Stare decisis principles weigh heavily in favor of

adhering to Chevron, which has been a cornerstone of

administrative law reflected in thousands of judicial

decisions—and which has provided a stable background

rule against which Congress has legislated—for 40

years. Because Congress could alter or eliminate the

Chevron framework at any time but has declined to do

so, Chevron is entitled to the particularly strong form

of stare decisis that this Court affords to decisions that

Congress could override by legislation.

Chevron is workable and remains vitally important.

Overruling it would upset the reliance interests of regulated parties and the public in the many agency rules

and orders that have been upheld under Chevron. Petitioners contend that different judges have different

thresholds for finding ambiguity. But reasonable jurists may disagree under any interpretive framework,

and replacing Chevron with a regime of de novo review

would draw federal courts into resolving policy questions

and exacerbate the potential for inconsistent results.

C. Chevron respects the separation of powers and

due-process principles. When an Article III court applies Chevron to uphold an agency’s interpretation of a

statute, the court is exercising the judicial power while

also respecting Congress’s Article I decision to vest authority in the agency to resolve an ambiguity or fill a

gap within reasonable bounds. Chevron is also consistent with 5 U.S.C. 706, which states that courts shall

resolve questions of law but does not specify the standard of review they should use.

II. If the Court revisits Chevron, it should remand

for the court of appeals to apply whatever new approach

the Court adopts. But given the force of stare decisis

and Chevron’s importance to all three Branches of government, the judgment below should be affirmed. Petitioners’ fallback arguments for reversal are outside the

scope of the question presented and lack merit.

ARGUMENT

I. THE COURT SHOULD NOT OVERRULE CHEVRON

The framework for judicial review set forth in Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), is a

cornerstone of administrative law. For 40 years, Chevron has provided a sensible and workable way to determine whether federal agencies are operating within the

scope of the authority that Congress has conferred when

they interpret statutes in rulemaking or adjudication.

Petitioners’ request to jettison that established framework falls far short of this Court’s standards for departing from stare decisis. Like the Auer deference doctrine to which the Court adhered in Kisor v. Wilkie, 139

S. Ct. 2400, 2408 (citing Auer v. Robbins, 519 U.S. 452

(1997)), Chevron is entitled to the strongest form of

stare decisis because Congress remains free to alter it

at any time but has declined to do so. Overruling Chevron would therefore require “a particularly ‘special justification,’ ” id. at 2423, which petitioners fail to provide.

Far more than Auer, overruling Chevron would be a

convulsive shock to the legal system. All three Branches

of government, regulated parties, and the public have

arranged their affairs for decades with Chevron as the

backdrop against which Congress legislates, agencies

issue rules and orders, and courts resolve disputes about

those agency actions. Given its central importance, overruling Chevron would threaten substantial disruption in

federal programs such as Social Security and would upset settled expectations in virtually every area of federal law. And if Chevron were overruled, the federal

courts would inevitably be required to resolve policy

questions properly left to the “political branch[es].”

Chevron, 467 U.S. at 865. The Court should reject that

profoundly destabilizing result.

A. Chevron Is A Bedrock Principle Of Administrative Law

That Sets Clear Ground Rules For All Three Branches

Chevron provides an appropriately tailored framework to identify when courts are to give effect to a federal agency’s interpretive determinations. When a court

properly applies Chevron to uphold an agency’s reasonable interpretation of a statute that the agency administers, the court has determined through its independent application of traditional tools of construction that

Congress left an ambiguity or gap in the statute that is

for the agency to resolve. By respecting Congress’s allocation of interpretive authority to the agency in that

circumstance—including when the allocation is implicit

in the statute—Chevron gives due weight to the expertise that agencies bring to bear, promotes national uni-

formity in the administration of federal law, and ensures greater political accountability for the judgments

concerning statutory policy that often inhere in interpretation. Chevron is also rooted in a long tradition of

deference reaching back to the earliest years of the Republic.

1. Chevron provides a clear and appropriately bounded

framework for judicial review

a. In Chevron, this Court set forth a “two-part

framework” for resolving disputes about an agency’s interpretation of a statute it administers. Mayo Found.

For Med. Educ. & Research v. United States, 562 U.S.

44, 52 (2011). Initially, the reviewing court must determine whether Congress has “directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. If

Congress has done so, “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

842-843. But “if the statute is silent or ambiguous with

respect to the specific issue,” then the reviewing court

proceeds to ask “whether the agency’s answer is based

on a permissible construction of the statute.” Id. at 843.

The relevant inquiry is whether the agency has adopted

“a reasonable interpretation,” not whether the court

would have adopted the same interpretation “in the absence of an administrative interpretation.” Id. at 843844. And a reviewing court may conclude that the

agency’s interpretation is reasonable under Chevron

without needing to resolve whether it is the “most reasonable” one, or whether some other interpretation also

would have been reasonable. Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009).

Chevron illustrates these principles. The question

there concerned the term “stationary source,” as used

in 1977 amendments to the Clean Air Act, 42 U.S.C.

7401 et seq. See Chevron, 467 U.S. at 848-851. The

amendments directed States to require permits to modify or construct “stationary sources” of emissions in certain areas. Id. at 850 (citation omitted); see id. at 848851. Congress did not define “stationary source” for

those purposes. In 1980, the Environmental Protection

Agency (EPA) issued regulations defining the term to

encompass both whole facilities and certain discrete

pieces of equipment within facilities. Id. at 857. “In

1981 a new administration took office,” and EPA issued

new regulations with a “plantwide definition” of

“ ‘source.’ ” Id. at 857-858. That approach meant that

modifications of equipment that resulted in increased

emissions could be offset by reductions elsewhere in the

plant to avoid triggering the permitting requirement.

This Court unanimously upheld EPA’s interpretation as “a reasonable construction of the statutory term

‘stationary source.’ ” Chevron, 467 U.S. at 840. The

Court first articulated the principles of review summarized above. See id. at 842-845. After examining the

statutory language and history, see id. at 845-853, 859864, the Court concluded that Congress did not “inflexibly * * * command a plantwide definition” or “forbid

such a definition,” instead leaving the matter to the

agency’s judgment. Id. at 864. And the Court found

that EPA’s choice to adopt a plantwide definition in this

“technical and complex” scheme was reasonable and

“entitled to deference.” Id. at 865.

b. Chevron rests in part on an inference of legislative intent—namely, that when Congress leaves “ambiguity in a statute meant for implementation by an

agency,” it necessarily understands that the ambiguity

will have to “be resolved, first and foremost, by the

agency.” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735,

740-741 (1996). As the Court explained in Chevron,

Congress may of course “explicitly” direct an agency to

define a statutory term, and the agency’s regulations or

orders carrying out that directive must be given effect

“unless they are arbitrary, capricious, or manifestly

contrary to the statute.” Chevron, 467 U.S. at 843-844;

see Batterton v. Francis, 432 U.S. 416, 425-426 (1977);

see, e.g., 42 U.S.C. 7522(a) (“clean alternative fuel vehicle (as defined by rule by the Administrator)”). The

Court also recognized that Congress’s “delegation of

authority to the agency to elucidate a specific provision

of [a] statute” may be “implicit rather than explicit.”

Chevron, 467 U.S. at 843-844. And the Court explained

that a statute is appropriately understood to embody an

implicit authorization if it “is silent or ambiguous with

respect to [a] specific issue” and Congress has granted

the agency rulemaking or adjudicatory authority to

carry the statute into effect. Id. at 843.

Petitioners describe (Br. 35) that inference as

“phony.” But it is entirely sensible to conclude that

when Congress has not clearly answered an interpretive question that an agency must resolve in its administration of a statute, Congress intends for its vesting of

rulemaking or adjudicatory authority in the agency—

and the agency’s reasonable exercise of that authority

to resolve the interpretive question—to be respected by

the courts. And whatever one might think of Chevron’s

implicit-delegation rationale as an original matter, this

Court’s numerous decisions applying it have long provided a “stable background rule against which Congress

can legislate.” City of Arlington v. FCC, 569 U.S. 290,

296 (2013). For 40 years, Congress has been on notice

that “[s]tatutory ambiguities will be resolved, within the

bounds of reasonable interpretation, not by the courts

but by the administering agency.” Ibid.

c. This Court has articulated several significant limits on Chevron that are equally part of its governing

framework. Four points bear particular emphasis.

First, and most importantly, in discerning whether

Congress has spoken directly to a question, a reviewing

court must apply the “traditional tools of statutory construction,” without deference to the agency. Chevron,

467 U.S. at 843 n.9. If the application of those traditional tools reveals a firm answer, “there is, for Chevron

purposes, no ambiguity * * * for an agency to resolve.”

INS v. St. Cyr, 533 U.S. 289, 321 n.45 (2001). This Court

has also instructed that courts should not “wave the ambiguity flag” merely because a statute appears to be

“impenetrable on first read.” Kisor, 139 S. Ct. at 2415

(discussing parallel considerations under Auer). “[H]ard

interpretive conundrums * * * can often be solved,”

and it is the reviewing court’s duty to use the traditional

interpretive tools to try before deference is appropriate

under Chevron. Ibid. (citing Pauley v. BethEnergy

Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting) (deference not required simply because “interpretation requires a taxing inquiry”)); see id. at 2448 (Kavanaugh, J., concurring in the judgment) (similar).

Second, even when a court finds a statute ambiguous,

the agency’s interpretation will be sustained under

Chevron only if it falls “within the bounds of reasonable

interpretation.” City of Arlington, 569 U.S. at 296. And

reasonableness “is a requirement an agency can fail.”

Kisor, 139 S. Ct. at 2416. Thus, a court’s application of

the traditional interpretive tools “establish[es] the outer

bounds of permissible interpretation” even when those

tools do not resolve an ambiguity. Ibid.

Third, Chevron does not apply unless the agency has

used sufficiently formal or otherwise statutorily proper

procedures to resolve a matter entrusted to its judgment. See United States v. Mead Corp., 533 U.S. 218,

230 (2001). The “overwhelming number of [this Court’s]

cases applying Chevron deference have reviewed the

fruits of notice-and-comment rulemaking or formal adjudication.” Ibid. When Congress authorizes an agency

to engage in rulemaking or adjudication, upholding the

agency’s interpretation under Chevron honors Congress’s choice to allocate “ ‘primary interpretational authority’ ” to the agency. Id. at 230 & n.11 (citation omitted). Conversely, Chevron does not apply at all if the

procedures an agency employed are found to be “defective.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211,

221 (2016).

Fourth, this Court has made clear that in certain “extraordinary cases” involving interpretive questions of

vast “economic and political significance,” Congress

should not be presumed to have intended for the agency

to resolve those questions. King v. Burwell, 576 U.S.

473, 485-486 (2015) (citation omitted). Petitioners contend (Br. 35) that Chevron somehow “violates this principle.” To the contrary, this Court has held that when a

case implicates such a “major question[],” an agency

cannot rely on Chevron’s background rule and must instead identify “ ‘clear congressional authorization’ ” for

its action. West Virginia v. EPA, 142 S. Ct. 2587, 2609

(2022) (citation omitted).

2. Chevron gives appropriate weight to agency expertise, encourages national uniformity in federal law,

and keeps the courts out of policymaking

Chevron ensures that certain decisions calling for interpretive discretion are appropriately made by the Ex-

ecutive Branch, if not clearly resolved by Congress.

Federal agencies can draw on accumulated experience,

expertise, and specialized knowledge that judges lack.

Federal agencies can also provide authoritative interpretations on a nationwide basis, ensuring a degree of

uniformity that piecemeal litigation of the issue cannot

match. And federal agencies, unlike federal courts, are

politically accountable to the American people through

the President. Those considerations illustrate why statutory gaps or ambiguities are properly resolved “first

and foremost[] by the agency” charged with administering a statutory program. Smiley, 517 U.S. at 741.

a. Chevron respects the “ ‘unique expertise,’ often of

a scientific or technical nature,” that federal agencies

can bring to bear when adopting gap-filling measures or

otherwise resolving a statutory ambiguity. Kisor, 139

S. Ct. at 2413 (plurality opinion) (citation omitted). Federal judges are frequently “not experts in the field,”

Chevron, 467 U.S. at 865, and they lack the experience,

resources, and procedures available to agencies. “Agencies (unlike courts) can conduct factual investigations,

can consult with affected parties, can consider how their

experts have handled similar issues over the long course

of administering a regulatory program.” Kisor, 139

S. Ct. at 2413 (plurality opinion). Thus, as Chevron observed, a statute that allows an agency to resolve an ambiguity may reflect a congressional judgment “that

those with great expertise * * * would be in a better

position” to “strike the balance” for a particular issue.

467 U.S. at 865.

Chevron has played a critical role in resolving many

interpretive questions in complex and technical areas of

federal law. See, e.g., Otsuka Pharm. Co. v. Price, 869

F.3d 987, 993-995 (D.C. Cir. 2017) (assessment of “ac-

tive moiety” of competing drugs); Environmental Def.

Fund v. NRC, 902 F.2d 785, 788-789 (10th Cir. 1990)

(regulation of nuclear energy); cf. American Cancer Society Br. 12-23 (Medicare and Medicaid programs).2

Congress’s decision to vest agencies with interpretive

authority to resolve ambiguities or gaps in such

schemes reflects “the comparative advantages of agencies over courts in making” those judgments. Kisor, 139

S. Ct. at 2413 (plurality opinion).

Petitioners observe (Br. 39) that Chevron applies in

some cases that do not implicate scientific or technical

questions—creating, in their view, a “mismatch.” But

in administering a statute, agencies frequently develop

“historical familiarity” and “expertise” that can yield interpretive insights even outside of technical or scientific

areas. Martin v. OSHRC, 499 U.S. 144, 153 (1991).

Here, for example, NMFS’s rule was informed by the

regional fishery council’s extensive consultations and

the agency’s historical experience with other observer

programs. 85 Fed. Reg. at 7417-7418. Chevron properly gives effect to Congress’s decision to entrust such

matters to an expert agency.

b. Chevron also promotes national uniformity in federal law by validating a federal agency’s reasonable interpretation of a statute and avoiding the potentially

conflicting views of the different courts in which review

might be sought. See Kisor, 139 S. Ct. at 2413 (plurality

opinion) (discussing this “well-known benefit[]” in the

context of Auer and noting “Congress’s frequent ‘preference for resolving interpretive issues by uniform administrative decision, rather than piecemeal by litigation’ ”) (citation omitted). Chevron thus reduces the frequency of circuit conflicts and helps to ensure that fed2

All citations to amici briefs are to the briefs filed in No. 22-451.

eral law applies in a uniform manner across the country,

see Barnett & Walker Br. 29 (discussing empirical evidence), which is critical in the administration of vast

benefits programs like Social Security, see, e.g., Barnhart v. Walton, 535 U.S. 212, 222 (2002). Although review by this Court can also bring about national uniformity, the lower courts apply Chevron to many more

disputes each year than this Court could feasibly review. Overruling Chevron would invite a patchwork of

conflicting interpretations of the same federal statute

for different litigants in different parts of the country

and would “render the binding effect of agency rules unpredictable.” City of Arlington, 569 U.S. at 307.

c. Regulated parties and members of the public also

benefit from the centralized procedures that agencies,

but not courts, can use to interpret federal law. Noticeand-comment rulemaking, in particular, affords the

public an opportunity to participate in the agency’s

adoption of an interpretation. In the rulemaking process, interested parties can comment about whether a

proposed rule is consistent with the underlying statute,

reflects the realities of the industry or program at issue,

and is wise as a matter of policy under the statute—and

agencies must “respond to significant comments.” Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 96 (2015).

Those procedures give the public greater and less costly

opportunities to be heard. They also enable the agency

to synthesize various comments and consider more nuanced regulatory approaches than may be possible in

piecemeal litigation of the same issues by individual

parties in different courts.

d. Finally, Chevron “reflects a sensitivity to the

proper roles of the political and judicial branches.”

Pauley, 501 U.S. at 696. When a statute is genuinely

susceptible of multiple reasonable readings, selecting

among them may involve “reconciling conflicting policies” that are relevant under the statute. Chevron, 467

U.S. at 865. It is proper for the political Branches to

make such determinations. By contrast, courts may not

resolve statutory ambiguities “on the basis of the

judges’ personal policy preferences.” Ibid. “And agencies (again unlike courts) have political accountability,

because they are subject to the supervision of the President, who in turn answers to the public.” Kisor, 139

S. Ct. at 2413 (plurality opinion). If the American people are dissatisfied with an agency’s choices, the President and his party may be held accountable at the ballot

box. Federal judges have no analogous “constituency”

to check them democratically and “have a duty to respect legitimate policy choices made by those who do.”

Chevron, 467 U.S. at 866.

The two-step Chevron framework maps onto those

principles. At the first step, the Judicial Branch must

determine whether Congress has “directly spoken” to

the interpretive question, thus giving effect to Congress’s own policy judgments. Chevron, 467 U.S. at 842.

But if Congress has not done so, then Chevron’s second

step properly recognizes that interpreting the statute

and choosing among multiple reasonable readings is

primarily for the agency charged with the statute’s administration, as a core aspect of executing the laws. See

City of Arlington, 569 U.S. at 304 n.4. The Judicial

Branch’s “natural role” at that second step, “like that of

referees in a sports match, is to see that the ball stays

within the bounds of the playing field and that the game

is played according to its rules. It is not for courts

themselves to play the game.” Peter L. Strauss, “Deference” Is Too Confusing—Let’s Call Them “Chevron

Space” and “Skidmore Weight,” 112 Colum. L. Rev.

1143, 1145 (2012).

Empirical scholarship shows that Chevron has been

effective at “remov[ing] politics from judicial decisionmaking.” Kent Barnett et al., Administrative Law’s

Political Dynamics, 71 Vand. L. Rev. 1463, 1466 (2018).

A study of “every published circuit court decision that

involved Chevron * * * from 2003 through 2013,” id. at

1467, found that Chevron “powerfully * * * constrain[s]

ideology in judicial decisionmaking,” id. at 1468. In particular, the study demonstrated that the composition of

a three-judge panel matters far less to the outcome of

an appeal when Chevron governs the panel’s analysis

than when various alternatives apply, including de novo

review. Id. at 1502.

Those considerations apply with special force to

agency interpretations of statutory provisions phrased

in “broad and open-ended terms.” Brett M. Kavanaugh,

Fixing Statutory Interpretation, 129 Harv. L. Rev.

2118, 2153 (2016); see, e.g., Long Island Care at Home,

Ltd. v. Coke, 551 U.S. 158, 167 (2007) (applying Chevron

and explaining that the statute “instructs the agency to

work out the details of th[e] broad definitions” at issue).

Congress frequently relies on agencies to spell out how

general or broad statutory language should apply in

more concrete terms. See Chevron, 467 U.S. at 865; e.g.,

Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467, 501 (2002)

(“ ‘just and reasonable’ rates”). In those circumstances,

the agency’s interpretation “is a policy decision” and

“courts should be leery of second-guessing that decision.” Kavanaugh 2152. A reviewing court’s role under

Chevron is instead to ensure that the agency uses the

proper procedures and stays within the bounds set by

Congress.

Petitioners assert (Br. 36) that when judges interpret “[e]ven * * * the most ambiguous statutes,” they

are engaged in “a legal act, not a policy act.” To be sure,

judges may be required to interpret ambiguous statutory language outside the Chevron context, and doing

so is not illegitimate policymaking. But Chevron nonetheless reinforces the separation of powers by delineating those cases where Congress presumptively intended for any “interstitial lawmaking” involved in resolving a genuine ambiguity to be done in the first instance by the Executive, not the courts. City of Arlington, 569 U.S. at 305 (citation omitted).

Chevron also respects the policymaking prerogatives

of Congress by providing a “stable background rule”

against which to legislate. City of Arlington, 569 U.S.

at 296. Under Chevron, “Congress knows to speak in

plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.” Ibid. And subject to outer constitutional bounds,

it is not for petitioners or courts to second-guess the

“wisdom” of vesting an agency with such authority.

Chevron, 467 U.S. at 866.

3. Chevron is rooted in a long tradition of deference to

the views of the Executive

Although Chevron was an important development in

key respects, it drew on a long tradition of judicial deference to Executive interpretations.

a. This Court has “long recognized that considerable

weight should be accorded to an executive department’s

construction of a statutory scheme it is entrusted to administer.” Chevron, 467 U.S. at 844. The Court identified numerous examples in Chevron itself, see id. at 844

n.14, including Edwards’ Lessee v. Darby, 25 U.S. (12

Wheat.) 206 (1827). In that case, the Court accorded

significant weight to state officials’ interpretation of a

state law they were charged with implementing: “In the

construction of a doubtful and ambiguous law, the cotemporaneous construction of those who were called

upon to act under the law, and were appointed to carry

its provisions into effect, is entitled to very great respect.” Id. at 210. Two decades earlier, Chief Justice

Marshall similarly wrote for the Court that if the construction of a federal customs statute had been “doubtful,” then the Court “would have respected the uniform

construction” which similar laws had been given “by the

treasury department of the United States.” United States

v. Vowell, 9 U.S. (5 Cranch) 368, 372 (1809); see, e.g.,

United States v. Macdaniel, 32 U.S. (7 Pet.) 1, 14-15

(1833); United States v. State Bank of N.C., 31 U.S. (6

Pet.) 29, 39-40 (1832).

The Court thus “gave early sanction to deference

principles,” and “judicial expressions of deference” increased as federal administrative law developed. Henry

P. Monaghan, Marbury and the Administrative State,

83 Colum. L. Rev. 1, 14-15 (1983). The Court stated in

United States v. Moore, 95 U.S. 760 (1878), for example,

that the “construction given to a statute by those

charged with the duty of executing it is always entitled

to the most respectful consideration.” Id. at 763. Often,

the Court expressed those principles in terms of upholding the agency’s interpretation in the face of doubt

or ambiguity. See, e.g., National Lead Co. v. United

States, 252 U.S. 140, 145-146 (1920) (stating that “it has

been the settled law that when uncertainty or ambiguity

* * * is found in a statute great weight will be given to

the contemporaneous construction by department officials, who were called upon to act under the law and to

carry its provisions into effect”); Jacobs v. Prichard,

223 U.S. 200, 214 (1912) (referring to the “rule which

gives strength to the construction of the officers who

are directed to execute the law” if “ambiguity exist[s]”);

United States v. Alabama Great S. R.R., 142 U.S. 615,

621 (1892) (“decisive” weight for agency construction

“in case of ambiguity”); Schell’s Executors v. Fauché,

138 U.S. 562, 572 (1891) (“controlling” weight in “all

cases of ambiguity”); Brown v. United States, 113 U.S.

568, 570-571 (1885) (“entitled to weight” and “in a case

of doubt ought to turn the scale”).

Petitioners suggest (Br. 21-22) that such cases

merely involved a generalized interpretive principle

giving respect to contemporaneous and consistent interpretations of a legal text. The Court emphasized

those factors in some instances, e.g., National Lead, 252

U.S. at 145-146; Jacobs, 223 U.S. at 213-214, but not all,

e.g., LaRoque v. Holder, 239 U.S. 62, 64 (1915). And petitioners miss the distinctive separation-of-powers dimension that runs through the cases. It was the settled

understandings of the Executive to which this Court afforded deference in cases of statutory ambiguity, and

the Court did so precisely because the Executive was

“charged with the duty of executing” the ambiguous

provision. Moore, 95 U.S at 763; see Craig Green, Chevron Debates and the Constitutional Transformation of

Administrative Law, 88 Geo. Wash. L. Rev. 654, 683

(2020). The Court’s early deference cases therefore reflected a view about the relationship among the three

Branches, prefiguring the Court’s modern approach.

Petitioners invoke (Br. 21) two historical examples in

which the Court rejected an agency’s statutory interpretation, but neither suggests any established tradition of “de novo review without deference” for all questions of law. In petitioners’ first example, the Court

acknowledged that the agency’s construction was entitled to “great respect” but nonetheless rejected that

construction as inconsistent with the clear meaning of

the statute, United States v. Dickson, 40 U.S. (15 Pet.)

141, 161 (1841), just as a court may do under Chevron.

And in petitioners’ second example, the Court did not

address any question of deference. See Johnson v.

Towsley, 80 U.S. (13 Wall.) 72, 82-92 (1871).

Additionally, many administrative actions in the

early Republic were reviewable only via mandamus, and

the writ of mandamus “generally would not issue unless

the executive officer was acting plainly beyond the

scope of his authority.” Mead, 533 U.S. at 242 (Scalia,

J., dissenting). Petitioners would dismiss (Br. 22-23)

those cases as resulting from the limits of mandamus

rather than respect for Executive interpretations, emphasizing the Court’s observation that in a proper case

outside of mandamus it “would not be bound to adopt

the construction” of a statute “given by the head of a

department.” Decatur v. Paulding, 39 U.S. (14 Pet.)

497, 515 (1840). But at the same time, the Court in Decatur stated that it would not “revise [an officer’s] judgment in any case where the law authorized him to exercise discretion, or judgment.” Ibid.

Justice Scalia reasonably viewed that tradition,

which afforded Executive officials significant discretion

to interpret federal law, as an additional forerunner of

Chevron. See Mead, 533 U.S. at 241-243 (Scalia, J., dissenting). At a minimum, the mandamus cases demonstrate that Article III itself was never understood to

compel de novo review of all questions of law.

b. Deference to agency interpretations continued

into the 20th century. In Gray v. Powell, 314 U.S. 402

(1941), for example, the Court deferred to an agency’s

interpretation of the term “producer” as used in a statutory exemption from price controls, id. at 411. The

Court observed that Congress “could have legislated

specifically as to” individual exemptions, but had instead “delegate[d] that function” to agency officials

“whose experience in a particular field gave promise of

a better informed, more equitable, adjustment of the

conflicting interests.” Id. at 411-412. And given that

vesting of authority by Congress, the Court concluded

that it was “not the province of a court to absorb the

administrative functions” or “substitute its judgment

for that of the” agency. Id. at 412. The court’s role was

instead to ensure the agency had followed the proper

procedures and applied the statute in a “reasoned manner.” Id. at 411; see NLRB v. Hearst Publ’ns, Inc., 322

U.S. 111, 130-131 (1944); see also Kenneth Culp Davis,

Administrative Law § 246, at 882-883 (1951) (describing Gray as a “leading case” showing that the “test on

review may be reasonableness and not rightness”).

This Court adhered to those principles in numerous

cases between the enactment of the APA in 1946 and

Chevron. See APA Scholars Br. 22-27. Time and again,

the Court stated that “great deference” was appropriate to the interpretation of a statute by those charged

with administering it, particularly in doubtful cases.

EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 8384 (1980) (citation omitted); see, e.g., Zenith Radio

Corp. v. United States, 437 U.S. 443, 450 (1978) (“To

sustain an agency’s application of a statutory term, we

need not find that its construction is the only reasonable

one, or even that it is the result we would have reached

had the question arisen in the first instance in judicial

proceedings.”) (quoting Udall v. Tallman, 380 U.S. 1,

16 (1965)) (brackets omitted); Mitchell v. Budd, 350

U.S. 473, 480 (1956) (“The Administrator fulfills his role

when he makes a reasoned definition.”); see also Chevron, 467 U.S. at 843 n.11 (citing additional examples).

c. The Court’s pre-Chevron precedents calling for

deference to agency interpretations existed alongside

other cases that could be read as “sanctioning free substitution of judicial for administrative judgment” on

particular interpretive questions. Pittston Stevedoring

Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976)

(Friendly, J.) (collecting examples), aff ’d, 432 U.S. 249

(1977). Before Chevron, the Court lacked any “unifying

theory for determining when to defer to agency interpretations of statutes.” Thomas W. Merrill, Judicial

Deference to Executive Precedent, 101 Yale L.J. 969,

972 (1992). The result was considerable uncertainty

about the degree of deference that any particular

agency interpretation would receive in litigation. See

id. at 974-975 (describing the mix of factors courts considered as lacking “predictive or constraining power,”

“manipulable,” and not based on any “coherent doctrine”). In Chevron and its progeny, the Court supplanted that case-by-case approach with an “across-theboard presumption that, in the case of ambiguity,

agency discretion is meant.” Antonin Scalia, Judicial

Deference to Administrative Interpretations of Law,

1989 Duke L.J. 511, 516; see id. at 517 (observing that

Chevron “is unquestionably better than what preceded

it”). Chevron thus provided a more coherent and consistent framework than some of the Court’s prior decisions, but it was rooted in principles reaching back to

the Marshall Court.

B. Stare Decisis Principles Weigh Heavily In Favor Of Adhering To Chevron

Petitioners ask (Br. 12) the Court to “overrule Chevron.” But in truth, petitioners seek to overturn not

merely that single case “but a ‘long line of precedents,’—

each one reaffirming the rest.” Kisor, 139 S. Ct. at 2422

(quoting Michigan v. Bay Mills Indian Cmty., 572 U.S.

782, 798 (2014)). This Court has invoked Chevron to uphold an agency’s reasonable interpretation of a statute

at least 70 times. See App., infra, 68a-72a. Justices

with diverse jurisprudential views have regularly authored opinions for the Court applying Chevron, often

unanimously.3 If Chevron were truly “egregiously wrong”

(Pet. Br. 14), surely that would not have escaped the

Court’s attention over such a long period of applying,

refining, and reiterating the doctrine many times over.

Petitioners would need to identify an extraordinary

justification to dispense with that whole line of cases,

See, e.g., Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 158

(2013) (Ginsburg, J.); Holder v. Martinez Gutierrez, 566 U.S. 583,

591 (2012) (Kagan, J.); Mayo Found., 562 U.S. at 58 (Roberts, C.J.);

United States v. Eurodif S.A., 555 U.S. 305, 316 (2009) (Souter, J.);

National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.

644, 673 (2007) (Alito, J.); Long Island Care, 551 U.S. at 165-168

(Breyer, J.); Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232,

242 (2004) (Thomas, J.); INS v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999) (Kennedy, J.); Smiley, 517 U.S. at 744 (Scalia, J.); Pauley,

501 U.S. at 696-699 (Blackmun, J.); Rust v. Sullivan, 500 U.S. 173,

184 (1991) (Rehnquist, C.J.); Massachusetts v. Morash, 490 U.S.

107, 116-119 (1989) (Stevens, J.); NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123-125 (1987) (Brennan, J.);

Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 403-409 (1987)

(White, J.); Young v. Community Nutrition Inst., 476 U.S. 974, 980981 (1986) (O’Connor, J.); United States v. City of Fulton, 475 U.S.

657, 667-668 (1986) (Marshall, J.); United States v. Boyle, 469 U.S.

241, 246 n.4 (1985) (Burger, C.J.).

but they “offer[] nothing of that ilk.” Kisor, 139 S. Ct.

at 2423. Instead, all relevant stare decisis considerations weigh against the radical step petitioners ask this

Court to take. First, the bar to overruling Chevron is

particularly high because Congress has legislated against

the backdrop of the doctrine for 40 years and “remains

free to alter” it at any time, either with respect to a specific statute or as a general matter. Id. at 2422 (citation

omitted). Second, overruling Chevron would threaten

the settled expectations of parties who have relied on

agency rules or orders upheld under it, including in

thousands of lower court decisions. And third, the

Chevron framework is both workable and sound. Overruling it now would render federal law less “evenhanded, predictable, and consistent,” and would undermine “the actual and perceived integrity of the judicial

process.” Bay Mills, 572 U.S. at 798 (citation omitted). 4

1. Congress has legislated against the backdrop of

Chevron for decades and could alter it at any time

a. Congress has legislated against the “background

rule” of Chevron for 40 years. City of Arlington, 569

U.S. at 296. Thus, Congress is by now “well aware that

the ambiguities it chooses to produce in a statute will be

resolved by the implementing agency” through rulemaking or adjudication, in accordance with Chevron.

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 397 (1999).

Indeed, Chevron could hardly have escaped Congress’s

notice. It is “one of the most cited cases in all of Amer-

The Loper petitioners contend that the Chevron framework is

not entitled to any precedential value. Those arguments lack merit

and directly contradict the Court’s decision in Kisor v. Wilkie, supra. See Gov’t Loper Br. 30-32.

ican law.” Stephen G. Breyer et al., Administrative

Law and Regulatory Policy 289 (5th ed. 2002).

Congress has enacted and amended countless statutes since 1984 under which a federal agency is authorized to engage in rulemaking or adjudication—including

the Magnuson-Stevens Act provisions at issue here.

Pet. App. 21a-22a. Those legislative actions all occurred

with Chevron in place and thus against an “understanding that the [Chevron] framework” would apply. Cass

R. Sunstein, Chevron As Law, 107 Geo. L.J. 1613, 1672

(2019). Congress has also prescribed alternatives to

Chevron in limited instances, or has specified which of

several agencies is entitled to any deference. See Barnett & Walker Br. 8-11 (examples). Thus, in myriad

ways, Chevron is woven into federal law.

b. Congress “remains free to alter” Chevron, or any

judicial decisions applying it, at any time. Bay Mills,

572 U.S. at 799 (citation omitted); see Kisor, 139 S. Ct.

at 2422 (describing the Court’s “deference decisions” as

“ ‘balls tossed into Congress’s court, for acceptance or

not as that branch elects’ ”) (quoting Kimble v. Marvel

Entm’t, LLC, 576 U.S. 446, 456 (2015)). For any particular statute, Congress can foreclose Chevron deference

by using precise language to circumscribe agency discretion, by restricting or eliminating the scope of deference, or by specifying an alternative framework for judicial review. Congress is also free to modify or abolish

Chevron for all federal statutes, and Congress could

make such changes on a prospective basis in order to

preserve settled law and protect reliance interests. But

Congress has “spurned multiple opportunities” to revisit Chevron despite proposals to do so, which only reinforces that any substantial changes should be left to

Congress. Kimble, 576 U.S. at 456.

Indeed, one such proposal—which would amend the

APA to require a reviewing court to “decide de novo all

relevant questions of law, including the interpretation

of * * * statutory provisions”—is pending in the current Congress. Separation of Powers Restoration Act

of 2023, H.R. 288, 118th Cong. § 2(3) (as passed by

House, June 15, 2023). Similar measures have been introduced in prior Congresses. E.g., Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. § 2

(2016). In considering those bills, Congress has heard

from a variety of stakeholders, many of whom opposed

the proposed changes. See, e.g., H.R. Rep. No. 622,

114th Cong., 2d Sess. 21 (2016) (minority views) (noting

opposition from “consumer, labor, research, faith, and

other public interest groups”). And Congress has so far

declined to make any wholesale changes.

c. Petitioners do not dispute that Congress could abrogate Chevron at any time, but they insist (Br. 46-47)

that this Court should preemptively take that step to

protect “the legislative system” from executive “aggrandizement.” It bears emphasis that Chevron applies

only if Congress has authorized an agency to implement

the statutory provision in question and the agency has

done so in accordance with the procedures Congress

mandated. Those procedures can be exacting. Noticeand-comment rulemaking, for example, can require

“many years and tens of thousands of person hours to

complete.” Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretative Rules, 52 Admin. L.

Rev. 547, 550-551 (2000). Petitioners’ assertion (Br. 46)

that Chevron enables government by mere “executive

fiat” is therefore unsound.

Petitioners also offer no reason to think that overruling Chevron would make “legislative compromise” (Pet.

Br. 46) easier rather than harder. In any event, a

proper respect for the separation of powers requires rejecting petitioners’ contention that it is the role of the

Judicial Branch to fashion new incentives for Congress

to legislate with greater specificity or compromise more

readily. Petitioners’ arguments are “more appropriately addressed to Congress.” Kimble, 576 U.S. at 464

(citation omitted).

2. Overruling Chevron would upset reliance interests

a. Considerations of stare decisis are “at their acme

in cases” like this one “involving property and contract

rights, where reliance interests are involved.” Payne v.

Tennessee, 501 U.S. 808, 828 (1991). Chevron has been

invoked in thousands of decisions to uphold an agency’s

reasonable interpretation of a statute. Private parties

have ordered their affairs in reasonable reliance on that

settled body of law, making investment decisions and

entering into contracts informed by agency interpretations upheld under Chevron. Overruling Chevron would

thus create “an upheaval,” Sunstein 1670, unsettling interpretations sustained under Chevron and the downstream agency programs and interpretations that build

upon them. In rejecting calls to overrule Auer, this

Court observed that doing so would have “cast doubt on

many settled constructions of rules,” and that it would

be “the rare overruling that introduces so much instability into so many areas of law, all in one blow.” Kisor,

139 S. Ct. at 2422. Overruling Chevron would be far

more disruptive.

Notably, Chevron is routinely applied in litigation

between private parties, where one or the other litigant

relies on an agency’s interpretation. See, e.g., Long Island Care, 551 U.S. at 162-164 (employee’s suit against

former employer). And many Chevron disputes involve

agency interpretations that benefit regulated parties,

often against challenges by interest groups arguing that

the statutory language required more stringent or demanding regulatory requirements. Chevron itself addressed a challenge by environmental groups to EPA’s

decision to revise its definition of “stationary source” in

a way that benefited industry and gave States additional flexibility. See 467 U.S. at 859; see also, e.g.,

Young v. Community Nutrition Inst., 476 U.S. 974,

978-979 (1986) (applying Chevron to sustain agency’s interpretation of statute as conferring discretion not to

impose “tolerance levels” for certain toxins in food).

Overruling Chevron would invite litigants to argue that

existing and future rules and orders that benefit regulated parties are inconsistent with arguably more demanding statutory language.

At the same time, important measures that were

adopted to protect or benefit members of the public

would be thrown into doubt, including programs in

which States play a significant role. Those members of

the public and the States have their own reliance interests deserving of respect. See D.C. & States Br. 19-21.

b. Petitioners’ contrary view (Br. 42) of private reliance interests rests largely on National Cable & Telecommunications Ass’n v. Brand X Internet Services,

545 U.S. 967 (2005). Brand X explained that when a

court upholds an agency’s interpretation at Chevron

step two, the court’s holding is generally limited to reasonableness. Id. at 982-983. But Brand X only underscores the disruption and uncertainty that would result

from overruling Chevron, as litigants would presumably

argue that judicial precedents upholding an agency’s interpretation as reasonable do not foreclose a future

court from rejecting that same interpretation and

adopting a purportedly better one. Overruling Chevron

would also invite arguments that existing rules and orders should be set aside as arbitrary because the

agency’s reasoning was based in part on its understanding of the interpretive latitude afforded under Chevron.

The risk of cascading uncertainty is yet another reason

to leave any substantial changes to Congress, which

could act prospectively.

Petitioners maintain (Br. 42) that Brand X results in

interpretive “flip-flop[s]” that upset reliance interests.

But the APA and this Court’s precedents already require agencies to take reliance interests into account.

See Brand X, 545 U.S. at 981 (agency must “adequately

explain[] the reasons for a reversal of policy”); Smiley,

517 U.S. at 742 (agency change that “does not take account of legitimate reliance on prior interpretation”

would be arbitrary). And the “space” that Chevron creates “for the exercise of continuing agency discretion”

is itself a virtue of the framework. Mead, 533 U.S. at

247 (Scalia, J., dissenting). Some changes in interpretation may reflect new data, market developments,

technological change, or the agency’s accumulated experience in administering the statute under a prior interpretation. Others, as in Chevron, may reflect the

new policies of an incoming Administration. Overruling

Chevron would prevent agencies from taking reasonable steps on a fresh look to respond to new information

or changed circumstances and would contribute to the

“ossification” of federal regulatory policy. Ibid.

In any event, petitioners fail to show that agencies

change course with such frequency under Chevron as to

make any private reliance on existing law unreasonable.

Petitioners’ criticisms also do not warrant discarding the

benefits of providing an agency the ability to respond to

changed circumstances.

3. As refined by this Court, Chevron is a workable and

familiar framework that remains vitally important

Chevron has not “proved unworkable” in practice.

Kimble, 576 U.S. at 459. To the contrary, Chevron is a

“familiar” framework, Pet. App. 10a (citation omitted),

that the lower courts have applied thousands of times

since 1984. This Court grants plenary review of only a

small fraction of those decisions, frequently focusing on

the most difficult questions that have divided the courts

of appeals. In the mine run of cases, Chevron sets forth

a clear and administrable approach to resolving disputes about agency statutory interpretations.

Petitioners contend (Br. 44) that Chevron has proven

unworkable in practice because different judges have

different thresholds for finding ambiguity. But some

disagreement among reasonable jurists is inevitable under any interpretive methodology, and overruling Chevron would exacerbate any concerns about inconsistency

among reviewing courts. Judges are more likely to find

agreement when asked to decide whether an agency’s

interpretation of a statute is reasonable than they would

be if forced also to decide whether the agency’s interpretation is the most reasonable one. Cf. Barnett &

Walker Br. 30-31 (discussing empirical evidence that

Chevron fosters agreement “across ideologically varied

courts of appeals and panels”). And in circumstances

where “the law runs out” to resolve an interpretive

question “and policy-laden choice is what is left over,”

Kisor, 139 S. Ct. at 2415 (plurality opinion), Chevron

provides a consistent rule of decision that is more likely

to yield common ground among judges with diverse perspectives, while also respecting the role of the political

Branches in making and implementing federal regulatory policy.

Petitioners nevertheless assert (Br. 44) that Chevron

has become unworkable through subsequent decisions

specifying limits on the doctrine. Arguing that those

limits are a reason to discard Chevron gets things backwards. The Court has already taken steps to appropriately circumscribe Chevron’s domain, and it could reinforce or elaborate on those limits if necessary (as in Kisor). In any event, petitioners overstate any practical

difficulty in applying Chevron. For example, many applications of Chevron involve notice-and-comment rules

or formal adjudications, for which no elaborate “Step

Zero” inquiry is necessary under Mead. Pet. Br. 44.

Lastly, petitioners suggest (Br. 45) that this Court

has already “sub silentio abandoned the Chevron

framework” in recent years. This Court’s foundational

precedents do not fall into desuetude in that manner.

The Court has invoked Chevron to uphold an agency’s

reasonable interpretation of a statute at least 70 times

and cited it approvingly many more times, and lower

courts have extensively relied on Chevron in cases arising under a multitude of statutes. On the other side of

the ledger, petitioners do not identify a single case

where the Court found a statute ambiguous but nonetheless refused to give effect to an agency’s reasonable

interpretation of it, in contravention of Chevron.

* * * * *

Any fair evaluation of Chevron must account for the

many benefits of the doctrine that this Court has recognized. As discussed above (at pp. 15-21), Chevron permits courts and the public to benefit from the specialized expertise that federal agencies can bring to bear,

while also ensuring greater uniformity in the admin-

istration of federal law and greater political accountability for regulatory policy. Overruling Chevron would

be antithetical to stare decisis. Like Chevron itself,

stare decisis serves in part to safeguard the “actual and

perceived integrity of the judicial process” as distinct

and insulated from political debates. Bay Mills, 572

U.S. at 798 (citation omitted). The Court should reject

petitioners’ effort to erode that safeguard.

C. Petitioners’ Remaining Arguments Lack Merit

Petitioners’ remaining attacks on Chevron lack merit.

Chevron respects the role of the Judicial Branch under

Article III, accords with due process, and is consistent

with both the text and history of the APA.

1. Chevron does not violate Article III or due process

a. Petitioners contend (Br. 15-20) that Chevron violates Article III by requiring federal courts to subordinate their independent judgment about the meaning of

a statute to an agency’s reasonable interpretation. But

as with Auer, reviewing courts “retain a firm grip on the

interpretive function” when applying Chevron. Kisor,

139 S. Ct. at 2421 (plurality opinion). First and foremost, it is for the court to determine “whether Congress

has directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 842. And if Congress has not,

Chevron further requires the court to determine

whether the agency’s interpretation falls within the

zone that Congress has left open for the exercise of

judgment and discretion. See Kisor, 139 S. Ct. at 2416.

Petitioners’ Article III argument is also inconsistent

with Congress’s recognized authority to expressly authorize an agency to define a statutory term. See pp. 1213, supra. When a statute contains an “express and

clear conferral of authority” on an agency to define a

term’s meaning, Cuozzo Speed Techs., LLC v. Lee, 579

U.S. 261, 286 (2016) (Thomas, J., concurring), Article

III does not empower federal courts to disregard Congress’s command and supplant the agency’s definition

with the court’s own. The same result should follow if

the statute implicitly authorizes the agency to give content to the same term. “[I]n both cases, the underlying

question is exactly the same,” City of Arlington, 569

U.S. at 299 (emphasis omitted)—namely, did Congress,

in the exercise of its Article I powers, allocate to the

agency the authority to flesh out a particular statutory

provision within reasonable bounds?

Chevron is thus fully consistent with the “duty of the

judicial department to say what the law is.” Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The court

is not “abdicating [that duty] by deferring to agency interpretations of law.” Monaghan 27-28. Instead, the

court is properly recognizing that the “most faithful

reading” of the law is that Congress vested the agency

with the authority to resolve an ambiguity or fill a gap

within reasonable boundaries. Ronald M. Levin, Identifying Questions of Law in Administrative Law, 74 Geo.

L.J. 1, 21 (1985).

In vesting an agency with such authority, moreover,

Congress operates well within the bounds of its own

constitutional authority and historical practice. The

constitutional framework has always envisioned an important role for the Executive in interpreting federal

law. See, e.g., Bowsher v. Synar, 478 U.S. 714, 733

(1986) (“Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of

‘execution’ of the law.”). “Congress has found it frequently necessary to use officers of the Executive

Branch within defined limits, to secure the exact effect

intended by its acts of legislation, by vesting discretion

in such officers to make public regulations interpreting

a statute and directing the details of its execution[.]”

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394,

406 (1928). Thus, as this Court has recognized, “[t]he

power of executing the laws necessarily includes both

authority and responsibility to resolve some questions

left open by Congress that arise during the law’s administration.” Utility Air Regulatory Grp. v. EPA, 573

U.S. 302, 327 (2014).5

Petitioners emphasize (Br. 16-18) that tenure and

salary safeguards were built into the Constitution to ensure that federal judges could exercise “independent

judgment” to resolve cases “in accordance with the law

of the land,” rather than illegitimate external pressures,

Perez, 575 U.S. at 120-121 (Thomas, J., concurring in

the judgment). But Chevron in no way threatens judicial independence from illegitimate external pressures.

Under Chevron, the reviewing court fulfills its role under Article III when it determines whether an agency

vested with authority to administer a statute has

adopted a reasonable interpretation of an ambiguous

provision, adhering to regular procedures. If the

agency has done so, that reasonable interpretation is

part of the “law of the land.” Ibid.; see Sunstein 16381640; Monaghan 26-28.

Accepting petitioners’ contrary view could have radical consequences. Federal courts routinely defer when

a constitutional or statutory provision vests responsibility or discretion in another Branch, as the Court contemplated in Marbury itself. See 5 U.S. (1 Cranch) at

The Loper petitioners separately argue that Chevron improperly grants agencies Article I legislative powers. It does not. See

Gov’t Loper Br. 40.

170 (“The province of the court is, solely, to decide on

the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they

have a discretion.”); see also, e.g., NLRB v. Noel Canning, 573 U.S. 513, 550 (2014); Negusie v. Holder, 555

U.S. 511, 516-517 (2009). Federal courts also regularly

evaluate whether a given interpretation or understanding of federal law is unreasonable. A court may, for example, need to determine whether a litigant’s legal position lacked any good-faith basis in evaluating sanctions, or whether a lower court committed plain error

during a criminal trial. Congress has prescribed a similarly deferential approach in imposing limits on federal

habeas corpus. See 28 U.S.C. 2254(d)(1) (federal-court

review limited to asking whether state-court decision

was “contrary to, or involved an unreasonable application of, clearly established Federal law”). An Article III

court does not surrender its authority to say what the

law is when it applies legal standards that are themselves framed in terms of reasonableness.

b. Petitioners’ due-process arguments (Br. 30-33)

are likewise without merit. This Court’s due-process

precedents address the possibility of “actual bias on the

part of [a] judge.” Caperton v. A.T. Massey Coal Co.,

Inc., 556 U.S. 868, 877 (2009) (citation omitted). But a

judge does not evince any bias towards a litigant when

she applies Chevron to evaluate whether an agency’s interpretation is reasonable. So too a judge does not

evince such bias when she follows the APA’s command

to review agency factfinding deferentially. 5 U.S.C.

706(2)(E). And when a judge properly applies Chevron,

it is incorrect to assert that the agency is made the

“judge in [its] own case.” Pet. Br. 31 (citation omitted).

The judge remains the judge.

If the Court were to recognize a novel due-process

claim based on legal rules that ostensibly “inject[] systematic pro-government bias” into a court proceeding—

where bias is understood in petitioners’ sense of following the law in a manner that results in “sid[ing] with one

party,” rather than the traditional sense of siding with

that party for an improper reason—there would be no

logical stopping point at Chevron. Pet. Br. 30-31. The

entire body of qualified-immunity law, for example, systematically favors government officers over the plaintiffs suing them. Many standards of review also favor

government agencies in litigation. And many other interpretive principles, such as the rule of lenity and the

federalism canon, operate to the exclusive benefit of one

type of litigant. A judge’s neutral application of such

principles does not suggest any personal bias or otherwise violate due process.

More broadly, petitioners’ view (Br. 31) that Chevron

unfairly advantages the federal government in disputes

with the citizenry is fundamentally misguided. The Executive Branch is controlled by the President, who is

chosen by the American people. When a court applies

Chevron, it is giving effect to choices the American people made as an exercise of self-government. Additionally, many agency rules and orders do not simply define

a regulated party’s obligations to the government, but

also balance and protect the competing interests of

other private parties—as when EPA’s interpretation of

“stationary source” affects both facilities subject to the

Clean Air Act and anyone who might inhale those

sources’ emissions. The government is also representing those citizens’ interests when it defends an agency’s

interpretation.

2. Chevron is consistent with the APA

Petitioners contend (Br. 23-28) that Chevron is inconsistent with the APA, which states that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of

an agency action.” 5 U.S.C. 706. That provision traces

its roots to Section 10(e) of the APA as enacted in 1946,

see Administrative Procedure Act, ch. 324, § 10(e), 60

Stat. 243-244, and it does not forbid the deference doctrines that this Court developed before 1946 and continued to develop afterwards, including Chevron.

a. As a textual matter, Section 706 provides that the

reviewing court “shall decide all relevant questions of

law,” 5 U.S.C. 706, but it does not state what the relevant questions of law in a particular case may be or

“specify the standard of review a court should use,” and

thus does not foreclose reviewing an “agency’s reading

for reasonableness,” Kisor, 139 S. Ct. at 2419 (plurality

opinion). When a court gives effect to an agency’s interpretation under Chevron, it has decided the “relevant questions of law,” 5 U.S.C. 706, by determining

that Congress authorized the agency to resolve an ambiguity within reasonable bounds and that the agency’s

interpretation falls within those bounds. See City of Arlington, 569 U.S. at 317 (Roberts, C.J., dissenting) (“We

do not ignore [Section 706’s] command when we afford

an agency’s statutory interpretation Chevron deference; we respect it.”); John F. Manning, Chevron and

the Reasonable Legislator, 128 Harv. L. Rev. 457, 459

(2014) (“[T]he reviewing court fulfills its duty to ‘interpret’ the statute by determining whether the agency

has stayed within the bounds of its assigned discretion.”).

Petitioners contend (Br. 25) that Section 706 places

review of statutory and constitutional questions on

“equal footing.” But in neither instance does Section

706’s text specify the applicable standard of review. Petitioners also insist (ibid.) that the express requirements in Section 706 for deferential review of specified

agency actions suggest that Congress did not wish for

“agency legal interpretations” to be reviewed with any

deference. But the statutory text does not support that

inference. Indeed, in Section 706(2)(F) Congress specified a standard applicable to review of facts that are

“subject to trial de novo by the reviewing court,” 5

U.S.C. 706(2)(F)—and the presence of the “de novo”

modifier there suggests that its absence from the portion of Section 706 on which petitioners rely was deliberate. See Russello v. United States, 464 U.S. 16, 23

(1983).

Petitioners also err in relying (Br. 26-27) on the

APA’s exemption from notice-and-comment procedures

for “interpretative rules.” 5 U.S.C. 553(b)(A). Such

rules are exempted from various rulemaking requirements because they lack the “force and effect of law”

and are instead issued to “advise the public of the

agency’s construction of the statutes and rules which it

administers.” Perez, 575 U.S. at 97 (citation omitted).

The APA’s express recognition of interpretive rules

confirms that interpreting statutes is one of the central

functions Congress expects agencies to perform. And

the specific provisions petitioners cite say nothing about

how courts should review agency interpretations.

b. The history of the APA points in the same direction. “Section 706 was understood when enacted to ‘re-

state the present law as to the scope of judicial review,’ ”

and “nothing in the law of that era required all judicial

review of agency interpretations to be de novo.” Kisor,

139 S. Ct. at 2419-2420 (plurality opinion) (quoting U.S.

Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947)) (brackets omitted); see Administrative Procedure Act: Legislative

History, S. Doc. No. 248, 79th Cong., 2d Sess. 39 (1946)

(describing Section 10(e) as a “restatement of the scope

of review”); S. Rep. No. 752, 79th Cong., 1st Sess. 38, 44

(1945) (APA Senate Report) (similar). The exhaustive

study of administrative procedures that preceded the

APA’s enactment confirmed that judicial review was,

“in some instances at least, * * * limited to the inquiry

whether the administrative construction is a permissible one.” Final Report of Attorney General’s Committee on Administrative Procedure (1941), reprinted in

Administrative Procedure in Government Agencies, S.

Doc. No. 8, 77th Cong., 1st Sess. 78 (1941) (Final Report); see id. at 90-91 (“[W]here the statute is reasonably susceptible of more than one interpretation, the

court may accept that of the administrative body.”); see

also APA Scholars Br. 10-21. And “[i]f Section 706 did

not change the law of judicial review,” as this Court has

“long recognized,” then it also “did not proscribe a deferential standard then known and in use.” Kisor, 139

S. Ct. at 2420 (plurality opinion).

Petitioners are therefore wrong to contend (Br. 26)

that the APA was designed to require “independent

judgment, without deference,” on all questions of law.

Petitioners fail to address the evidence in the historical

record that Section 706 was understood to be a restatement of then-existing law. Petitioners instead rely (Br.

26) on unenacted language—proposed by a minority of

the Attorney General’s committee, not a Member of

Congress—that would have directed a reviewing court

to give “due weight” to “the experience, technical competence, specialized knowledge, and legislative policy of

the agency involved as well as the discretionary authority conferred upon it.” Final Report 246-247. The proponents of that language viewed it as consistent with

the “measure of judicial review now obtaining in the

courts.” Id. at 246. Its omission from the APA, enacted

five years later, is hardly evidence that Congress desired to mandate de novo review in all circumstances.

Congress may well have decided that the proposal was

unduly restrictive and did not capture the full scope of

permissible deference under existing law.

Petitioners also cite (Br. 27) statements indicating

that “questions of law are for courts rather than agencies to decide in the last analysis.” APA Senate Report

28. None of those statements addresses the standard of

review that courts would apply “in the last analysis.”

Ibid. Nor does the floor statement that petitioners invoke (Br. 27). Representative Waters stated that the

APA would require courts to “determine independently

all relevant questions of law,” but he also stated that

courts would be required to “exercise * * * independent judgment” in applying the substantial-evidence

standard. 92 Cong. Rec. 6554 (1946). He therefore did

not equate “independent” review, ibid., with de novo review.

Although one commentator took the view that the

APA required de novo review of legal questions, see

John Dickinson, Administrative Procedure Act: Scope

and Grounds of Broadened Judicial Review, 33 A.B.A.

J. 434, 516 (1947) (cited at Pet. Br. 27-28), his “isolated”

understanding contradicted the great weight of “con-

temporary scholarship,” Ronald M. Levin, The APA

and the Assault on Deference, 106 Minn. L. Rev. 125,

181 (2021) (citing the views of “leading voices in administrative law scholarship”); see, e.g., Davis 885; Louis L.

Jaffe, Judicial Review, 64 Harv. L. Rev. 1233, 12601261 (1951). And in the years after the APA’s enactment,

this Court never “suggest[ed] that [the APA] prohibited

deference to agency interpretations.” Sunstein 1656.

Given that history, it would be particularly unwarranted to now read the APA as mandating de novo review of all questions of law on the theory that the statute was intended to “revive” an older tradition of merely

giving weight to contemporaneous and uniform interpretations of a statute. Pet. Br. 24 (citation omitted).

The evidence is powerful that the APA was not contemporaneously understood that way and has not been so

construed in the ensuing decades. At the very least, petitioners have fallen far short of demonstrating that the

APA’s language and the circumstances of its enactment

furnish a compelling basis for overruling Chevron at

this late date, after decades of reliance on that framework by this Court, lower courts, Congress, regulated

parties, benefited citizens, and the general public.

II. THE JUDGMENT SHOULD BE AFFIRMED

The Court limited its grant of certiorari to the question whether Chevron should be overruled or modified

and declined to grant review here (or in Loper) of other

proposed questions concerning the Magnuson-Stevens

Act. Petitioners nonetheless argue at length (Br. 47-52)

for reversal regardless of the fate of Chevron. The

Court should decline to entertain those arguments,

which are outside the scope of the question presented.

Sup. Ct. R. 14(a). If the Court entertains those arguments, it should reject them. 6

The text, structure, and history of the MagnusonStevens Act all confirm that when NMFS exercises its

authority to require that “one or more observers be carried on board” a regulated vessel, 16 U.S.C. 1853(b)(8),

the agency may require the vessel’s owner to hire and

pay for a third-party observer. See Gov’t C.A. Br. 2436. The Act defines “observer” broadly to include nongovernmental monitors, 16 U.S.C. 1802(31), and authorizes NMFS to impose sanctions on owners who fail to

make timely payments for “observer services provided

to or contracted by” the owner, 16 U.S.C. 1858(g)(1)(D).

Those provisions provide “clear textual support” for the

agency’s interpretation, Pet. App. 17a—all in addition

to “the ‘default norm’” that regulated parties bear the

“cost of complying with properly enacted regulations,”

id. at 13a; see id. at 14a (by “expressly authoriz[ing]”

plans that require third-party monitors, Congress “presumed that the vessels’ owners would bear the cost of

compliance, much like an SEC requirement to submit

independently audited financials imposes on the regulated entity the cost of paying an independent accountant”).

Petitioners seek (Br. 48) to foster the misimpression

that the third-party monitors are “federal officials.” As

the court of appeals recognized, that is incorrect. Pet.

App. 14a, 21a. The government trains and certifies

The Loper petitioners alternatively argue (Br. 43-46) that Chevron does not apply in certain cases involving statutory “silence.”

But the Magnuson-Stevens Act is not “silent” on the question

whether vessel owners may be required to procure and pay for

third-party monitors, and the Loper petitioners’ alternative argument is unsound. Gov’t Loper Br. 45-47.

third-party observers and provides some of them with

email addresses and identification cards to facilitate

their data-collection work. See Pet. Br. 6-7. But they

are not federal employees and do not have the authority

to enforce federal law. Cf. 16 U.S.C. 1857(1)(D)-(F) and

(L) (distinguishing “observer[s]” from federal “officer[s]”). It is precisely because third-party observers

are not governmental personnel that they must be

“deemed” federal employees in order to come within the

scope of the workers’ compensation statute petitioners

invoke. Pet. Br. 7 (quoting 16 U.S.C. 1881b(c)).

The court of appeals also correctly rejected petitioners’ reliance (Br. 48-50) on certain fee-based programs

authorized by the Magnuson-Stevens Act. Those programs are not “apples-to-apples comparators” and thus

do not support any negative inference about the agency’s authority to adopt this rule. Pet. App. 18a. Among

other distinctions, under the rule “no money is paid into

government coffers” or pursuant to fee amounts set by

the government, unlike in the fee-based programs,

ibid.; vessel owners must “obtain and pay for a service

from a non-governmental source” under the rule, in contrast to the “entirely different mechanism” of the government providing observers and charging fees for doing so, id. at 18a-19a; and vessel owners “only pay for

observers they actually carry” under the rule, id. at 20a,

unlike two of the fee-based programs in which fees are

used to fund “more than direct observer costs,” id. at

19a. Moreover, the Act expressly authorizes NMFS to

sanction vessel owners who fail to honor their “contract[s]” for monitoring services. 16 U.S.C. 1858(g)(1)(D).

That provision plainly contemplates a contractual relationship between the vessel owner and a third-party

provider of observer services—not simply arrangements in which owners pay fees to the government.

The statutory history also undercuts petitioners’ interpretation. In a 1990 rulemaking, NMFS created a

program for fisheries in the North Pacific region requiring vessel owners to pay for third-party monitoring.

55 Fed. Reg. 4839, 4840, 4848 (Feb. 12, 1990). Later

that year, Congress acted to place the agency’s authority to create such programs beyond any doubt by enacting the provision authorizing NMFS to require that

“observers be carried on board,” while also authorizing

certain optional fee-based observer programs in North

Pacific fisheries. Fishery Conservation Amendments of

1990, Pub. L. No. 101-627, § 109(b)(2), 104 Stat. 4448;

see § 118(a), 104 Stat. 4457-4459; Gov’t C.A. Br. 34-36.

Petitioners assert (Br. 50) that the amendments regarding the North Pacific fisheries would have been “superfluous” on the government’s understanding of NMFS’s

authority. But that assertion reflects petitioners’ own

repeated failure to recognize the important distinctions

between fee-based programs and requiring vessel owners to obtain and pay for the services of third-party

monitors—just as regulated parties are routinely required to pay for the services of other third parties, like

accountants and lawyers, to comply with federal law.

See Pet. App. 14a, 17a-21a.

For all those reasons, the challenged rule reflects the

best reading of the statutory scheme. “And at the very

least,” the agency’s interpretation “is certainly reasonable” under the Chevron framework. Pet. App. 22a.

This Court should adhere to that framework, given

principles of stare decisis and Chevron’s continuing importance to all three Branches of government.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

TODD K IM

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

RACHEL HERON

DANIEL HALAINEN

DINA B. MISHRA

Attorneys

DECEMBER 2023

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Statutory and regulatory provisions :

5 U.S.C. 706 .................................................................... 1a

16 U.S.C. 1801 ................................................................ 2a

16 U.S.C. 1802(31) and (36) ........................................... 8a

16 U.S.C. 1821(h) ........................................................... 8a

16 U.S.C. 1853 .............................................................. 12a

16 U.S.C. 1853a(a) and (e) ........................................... 21a

16 U.S.C. 1854(a) and (b) ............................................. 22a

16 U.S.C. 1855(d) and (f ) ............................................. 25a

16 U.S.C. 1862(a)-(e) .................................................... 26a

50 C.F.R. 648.11(a)-( j), and (m) .................................. 31a

Appendix B — List of Chevron Cases ......................... 68a

APPENDIX A

5 U.S.C. 706 provides:

Scope of review

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability

of the terms of an agency action. The reviewing court

shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title or

otherwise reviewed on the record of an agency

hearing provided by statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo by the

reviewing court.

(1a)

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of prejudicial error.

16 U.S.C. 1801 provides:

Findings, purposes and policy

(a)

Findings

The Congress finds and declares the following:

(1) The fish off the coasts of the United States,

the highly migratory species of the high seas, the species which dwell on or in the Continental Shelf appertaining to the United States, and the anadromous

species which spawn in United States rivers or estuaries, constitute valuable and renewable natural resources. These fishery resources contribute to the

food supply, economy, and health of the Nation and

provide recreational opportunities.

(2) Certain stocks of fish have declined to the

point where their survival is threatened, and other

stocks of fish have been so substantially reduced in

number that they could become similarly threatened

as a consequence of (A) increased fishing pressure,

(B) the inadequacy of fishery resource conservation

and management practices and controls, or (C) direct

and indirect habitat losses which have resulted in a

diminished capacity to support existing fishing levels.

(3) Commercial and recreational fishing constitutes a major source of employment and contributes

significantly to the economy of the Nation. Many

coastal areas are dependent upon fishing and related

activities, and their economies have been badly damaged by the overfishing of fishery resources at an

ever-increasing rate over the past decade. The activities of massive foreign fishing fleets in waters adjacent to such coastal areas have contributed to such

damage, interfered with domestic fishing efforts, and

caused destruction of the fishing gear of United

States fishermen.

(4) International fishery agreements have not

been effective in preventing or terminating the overfishing of these valuable fishery resources. There is

danger that irreversible effects from overfishing will

take place before an effective international agreement on fishery management jurisdiction can be negotiated, signed, ratified, and implemented.

(5) Fishery resources are finite but renewable.

If placed under sound management before overfishing has caused irreversible effects, the fisheries can

be conserved and maintained so as to provide optimum yields on a continuing basis.

(6) A national program for the conservation and

management of the fishery resources of the United

States is necessary to prevent overfishing, to rebuild

overfished stocks, to insure conservation, to facilitate

long-term protection of essential fish habitats, and to

realize the full potential of the Nation’s fishery resources.

(7) A national program for the development of

fisheries which are underutilized or not utilized by

the United States fishing industry, including bottom

fish off Alaska, is necessary to assure that our citi-

zens benefit from the employment, food supply, and

revenue which could be generated thereby.

(8) The collection of reliable data is essential to

the effective conservation, management, and scientific understanding of the fishery resources of the

United States.

(9) One of the greatest long-term threats to the

viability of commercial and recreational fisheries is

the continuing loss of marine, estuarine, and other

aquatic habitats. Habitat considerations should receive increased attention for the conservation and

management of fishery resources of the United

States.

(10) Pacific Insular Areas contain unique historical, cultural, legal, political, and geographical circumstances which make fisheries resources important in

sustaining their economic growth.

(11) A number of the Fishery Management Councils have demonstrated significant progress in integrating ecosystem considerations in fisheries management using the existing authorities provided under this chapter.

(12) International cooperation is necessary to address illegal, unreported, and unregulated fishing

and other fishing practices which may harm the sustainability of living marine resources and disadvantage the United States fishing industry.

(13) While both provide significant cultural and

economic benefits to the Nation, recreational fishing

and commercial fishing are different activities.

Therefore, science-based conservation and manage-

ment approaches should be adapted to the characteristics of each sector.

(b)

Purposes

It is therefore declared to be the purposes of the Congress in this chapter—

(1) to take immediate action to conserve and

manage the fishery resources found off the coasts of

the United States, and the anadromous species and

Continental Shelf fishery resources of the United

States, by exercising (A) sovereign rights for the purposes of exploring, exploiting, conserving, and managing all fish, within the exclusive economic zone established by Presidential Proclamation 5030, dated

March 10, 1983, and (B) exclusive fishery management authority beyond the exclusive economic zone

over such anadromous species and Continental Shelf

fishery resources;

(2) to support and encourage the implementation and enforcement of international fishery agreements for the conservation and management of highly migratory species, and to encourage the negotiation and implementation of additional such agreements as necessary;

(3) to promote domestic commercial and recreational fishing under sound conservation and management principles, including the promotion of catch and

release programs in recreational fishing;

(4) to provide for the preparation and implementation, in accordance with national standards, of fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from

each fishery;

(5) to establish Regional Fishery Management

Councils to exercise sound judgment in the stewardship of fishery resources through the preparation,

monitoring, and revision of such plans under circumstances (A) which will enable the States, the fishing

industry, consumer and environmental organizations, and other interested persons to participate in,

and advise on, the establishment and administration

of such plans, and (B) which take into account the social and economic needs of the States;

(6) to encourage the development by the United

States fishing industry of fisheries which are currently underutilized or not utilized by United States

fishermen, including bottom fish off Alaska, and to

that end, to ensure that optimum yield determinations promote such development in a non-wasteful

manner; and

(7) to promote the protection of essential fish

habitat in the review of projects conducted under

Federal permits, licenses, or other authorities that

affect or have the potential to affect such habitat.

(c)

Policy

It is further declared to be the policy of the Congress

in this chapter—

(1) to maintain without change the existing territorial or other ocean jurisdiction of the United

States for all purposes other than the conservation

and management of fishery resources, as provided

for in this chapter;

(2) to authorize no impediment to, or interference with, recognized legitimate uses of the high

seas, except as necessary for the conservation and

management of fishery resources, as provided for in

this chapter;

(3) to assure that the national fishery conservation and management program utilizes, and is based

upon, the best scientific information available; involves, and is responsive to the needs of, interested

and affected States and citizens; considers efficiency;

draws upon Federal, State, and academic capabilities

in carrying out research, administration, management, and enforcement; considers the effects of fishing on immature fish and encourages development of

practical measures that minimize bycatch and avoid

unnecessary waste of fish; and is workable and effective;

(4) to permit foreign fishing consistent with the

provisions of this chapter;

(5) to support and encourage active United States

efforts to obtain internationally acceptable agreements which provide for effective conservation and

management of fishery resources, and to secure agreements to regulate fishing by vessels or persons beyond the exclusive economic zones of any nation;

(6) to foster and maintain the diversity of fisheries in the United States; and

(7) to ensure that the fishery resources adjacent

to a Pacific Insular Area, including resident or migratory stocks within the exclusive economic zone adjacent to such areas, be explored, developed, conserved, and managed for the benefit of the people of

such area and of the United States.

16 U.S.C. 1802 provides in pertinent part:

Definitions

As used in this chapter, unless the context otherwise

requires—

(31) The term “observer” means any person required or authorized to be carried on a vessel for conservation and management purposes by regulations

or permits under this chapter.

(36) The term “person” means any individual

(whether or not a citizen or national of the United

States), any corporation, partnership, association, or

other entity (whether or not organized or existing under the laws of any State), and any Federal, State,

local, or foreign government or any entity of any such

government.

16 U.S.C. 1821(h) provides:

Foreign fishing

(h)

Full observer coverage program

(1)(A) Except as provided in paragraph (2), the Secretary shall establish a program under which a United

States observer will be stationed aboard each foreign

fishing vessel while that vessel is engaged in fishing

within the exclusive economic zone.

(B) The Secretary shall by regulation prescribe minimum health and safety standards that shall be maintained aboard each foreign fishing vessel with regard to

the facilities provided for the quartering of, and the carrying out of observer functions by, United States observers.

(2) The requirement in paragraph (1) that a United

States observer be placed aboard each foreign fishing

vessel may be waived by the Secretary if he finds that—

(A) in a situation where a fleet of harvesting vessels transfers its catch taken within the exclusive economic zone to another vessel, aboard which is a

United States observer, the stationing of United

States observers on only a portion of the harvesting

vessel fleet will provide a representative sampling of

the by-catch of the fleet that is sufficient for purposes

of determining whether the requirements of the applicable management plans for the by-catch species

are being complied with;

(B) in a situation where the foreign fishing vessel is operating under a Pacific Insular Area fishing

agreement, the Governor of the applicable Pacific Insular Area, in consultation with the Western Pacific

Council, has established an observer coverage program or other monitoring program that the Secretary, in consultation with the Western Pacific Management Council, determines is adequate to monitor

harvest, bycatch, and compliance with the laws of the

United States by vessels fishing under the agreement;

10a

nomic zone will be of such short duration that the

placing of a United States observer aboard the vessel

would be impractical; or

(D) for reasons beyond the control of the Secretary, an observer is not available.

(3) Observers, while stationed aboard foreign fishing vessels, shall carry out such scientific, compliance

monitoring, and other functions as the Secretary deems

necessary or appropriate to carry out the purposes of

this chapter; and shall cooperate in carrying out such

other scientific programs relating to the conservation

and management of living resources as the Secretary

deems appropriate.

(4) In addition to any fee imposed under section

1824(b)(10) of this title and section 1980(e) of title

22 with respect to foreign fishing for any year after

1980, the Secretary shall impose, with respect to each

foreign fishing vessel for which a permit is issued under

such section 1824 of this title, a surcharge in an amount

sufficient to cover all the costs of providing a United

States observer aboard that vessel. The failure to pay

any surcharge imposed under this paragraph shall be

treated by the Secretary as a failure to pay the permit

fee for such vessel under section 1824(b)(10) of this title. All surcharges collected by the Secretary under

this paragraph shall be deposited in the Foreign Fishing

Observer Fund established by paragraph (5).

(5) There is established in the Treasury of the

United States the Foreign Fishing Observer Fund.

The Fund shall be available to the Secretary as a revolving fund for the purpose of carrying out this subsection.

The Fund shall consist of the surcharges deposited into

11a

it as required under paragraph (4). All payments made

by the Secretary to carry out this subsection shall be

paid from the Fund, only to the extent and in the

amounts provided for in advance in appropriation Acts.

Sums in the Fund which are not currently needed for the

purposes of this subsection shall be kept on deposit or

invested in obligations of, or guaranteed by, the United

States.

(6) If at any time the requirement set forth in paragraph (1) cannot be met because of insufficient appropriations, the Secretary shall, in implementing a supplementary observer program:

(A) certify as observers, for the purposes of this

subsection, individuals who are citizens or nationals

of the United States and who have the requisite education or experience to carry out the functions referred to in paragraph (3);

(B) establish standards of conduct for certified

observers equivalent to those applicable to Federal

personnel;

certified observers or their agents shall be paid by

the owners and operators of foreign fishing vessels

for observer services; and

(D) monitor the performance of observers to ensure that it meets the purposes of this chapter.

12a

16 U.S.C. 1853 provides:

Contents of fishery management plans

(a)

Required provisions

Any fishery management plan which is prepared by

any Council, or by the Secretary, with respect to any

fishery, shall—

(1) contain the conservation and management

measures, applicable to foreign fishing and fishing by

vessels of the United States, which are—

(A) necessary 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;

(B) described in this subsection or subsection

(b), or both; and

the other provisions of this chapter, regulations

implementing recommendations by international

organizations in which the United States participates (including but not limited to closed areas,

quotas, and size limits), and any other applicable

law;

(2) contain a description of the fishery, including, but not limited to, the number of vessels involved, the type and quantity of fishing gear used, the

species of fish involved and their location, the cost

likely to be incurred in management, actual and potential revenues from the fishery, any recreational

interests in the fishery, and the nature and extent of

13a

foreign fishing and Indian treaty fishing rights, if

any;

(3) assess and specify the present and probable

future condition of, and the maximum sustainable

yield and optimum yield from, the fishery, and include a summary of the information utilized in making such specification;

(4)

assess and specify—

(A) the capacity and the extent to which fishing vessels of the United States, on an annual basis, will harvest the optimum yield specified under

paragraph (3),

(B) the portion of such optimum yield which,

on an annual basis, will not be harvested by fishing

vessels of the United States and can be made

available for foreign fishing, and

States fish processors, on an annual basis, will

process that portion of such optimum yield that

will be harvested by fishing vessels of the United

States;

(5) specify the pertinent data which shall be submitted to the Secretary with respect to commercial,

recreational,1 charter fishing, and fish processing in

the fishery, including, but not limited to, information

regarding the type and quantity of fishing gear used,

catch by species in numbers of fish or weight thereof,

areas in which fishing was engaged in, time of fishing,

number of hauls, economic information necessary to

meet the requirements of this chapter, and the esti1

So in original.

Probably should be followed by “and”.

14a

mated processing capacity of, and the actual processing capacity utilized by, United States fish processors,2

(6) consider and provide for temporary adjustments, after consultation with the Coast Guard and

persons utilizing the fishery, regarding access to the

fishery for vessels otherwise prevented from harvesting because of weather or other ocean conditions

affecting the safe conduct of the fishery; except that

the adjustment shall not adversely affect conservation efforts in other fisheries or discriminate among

participants in the affected fishery;

(7) describe and identify essential fish habitat

for the fishery based on the guidelines established by

the Secretary under section 1855(b)(1)(A) of this title, minimize to the extent practicable adverse effects

on such habitat caused by fishing, and identify other

actions to encourage the conservation and enhancement of such habitat;

(8) in the case of a fishery management plan

that, after January 1, 1991, is submitted to the Secretary for review under section 1854(a) of this title (including any plan for which an amendment is submitted to the Secretary for such review) or is prepared

by the Secretary, assess and specify the nature and

extent of scientific data which is needed for effective

implementation of the plan;

(9) include a fishery impact statement for the

plan or amendment (in the case of a plan or amendment thereto submitted to or prepared by the Secre2

So in original.

The comma probably should be a semicolon.

15a

tary after October 1, 1990) which shall assess, specify, and analyze the likely effects, if any, including the

cumulative conservation, economic, and social impacts, of the conservation and management measures

on, and possible mitigation measures for—

(A) participants in the fisheries and fishing

communities affected by the plan or amendment;

(B) participants in the fisheries conducted in

adjacent areas under the authority of another

Council, after consultation with such Council and

representatives of those participants; and

whether and to what extent such measures may

affect the safety of participants in the fishery;

(10) specify objective and measurable criteria for

identifying when the fishery to which the plan applies

is overfished (with an analysis of how the criteria

were determined and the relationship of the criteria

to the reproductive potential of stocks of fish in that

fishery) and, in the case of a fishery which the Council

or the Secretary has determined is approaching an

overfished condition or is overfished, contain conservation and management measures to prevent overfishing or end overfishing and rebuild the fishery;

(11) establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and

management measures that, to the extent practicable

and in the following priority—

(A)

minimize bycatch; and

16a

(B) minimize the mortality of bycatch which

cannot be avoided;

(12) assess the type and amount of fish caught

and released alive during recreational fishing under

catch and release fishery management programs and

the mortality of such fish, and include conservation

and management measures that, to the extent practicable, minimize mortality and ensure the extended

survival of such fish;

(13) include a description of the commercial, recreational, and charter fishing sectors which participate in the fishery, including its economic impact,

and, to the extent practicable, quantify trends in

landings of the managed fishery resource by the commercial, recreational, and charter fishing sectors;

(14) to the extent that rebuilding plans or other

conservation and management measures which reduce the overall harvest in a fishery are necessary,

allocate, taking into consideration the economic impact of the harvest restrictions or recovery benefits

on the fishery participants in each sector, any harvest

restrictions or recovery benefits fairly and equitably

among the commercial, recreational, and charter

fishing sectors in the fishery and; 3

(15) establish a mechanism for specifying annual

catch limits in the plan (including a multiyear plan),

implementing regulations, or annual specifications,

at a level such that overfishing does not occur in the

fishery, including measures to ensure accountability.

So in original.

Probably should be “fishery; and”.

17a

(b)

Discretionary provisions

Any fishery management plan which is prepared by

any Council, or by the Secretary, with respect to any

fishery, may—

(1) require a permit to be obtained from, and

fees to be paid to, the Secretary, with respect to—

(A) any fishing vessel of the United States

fishing, or wishing to fish, in the exclusive economic zone or for anadromous species or Continental Shelf fishery resources beyond such zone;

(B)

the operator of any such vessel; or

first receives fish that are subject to the plan;

(2)(A) designate zones where, and periods when,

fishing shall be limited, or shall not be permitted, or

shall be permitted only by specified types of fishing

vessels or with specified types and quantities of fishing gear;

(B) designate such zones in areas where deep sea

corals are identified under section 1884 of this title,

to protect deep sea corals from physical damage from

fishing gear or to prevent loss or damage to such fishing gear from interactions with deep sea corals, after

considering long-term sustainable uses of fishery resources in such areas; and

this chapter that prohibits all fishing, ensure that

such closure—

(i)

is based on the best scientific information available;

18a

(ii)

includes criteria to assess the conservation benefit of the closed area;

(iii) establishes a timetable for review of the

closed area’s performance that is consistent with

the purposes of the closed area; and

(iv) is based on an assessment of the benefits

and impacts of the closure, including its size, in relation to other management measures (either alone

or in combination with such measures), including

the benefits and impacts of limiting access to:

users of the area, overall fishing activity, fishery

science, and fishery and marine conservation;

(3) establish specified limitations which are necessary and appropriate for the conservation and

management of the fishery on the—

(A) catch of fish (based on area, species, size,

number, weight, sex, bycatch, total biomass, or

other factors);

(B) sale of fish caught during commercial,

recreational, or charter fishing, consistent with

any applicable Federal and State safety and quality requirements; and

or fish products under permits issued pursuant

to section 1824 of this title;

(4) prohibit, limit, condition, or require the use

of specified types and quantities of fishing gear, fishing vessels, or equipment for such vessels, including

devices which may be required to facilitate enforcement of the provisions of this chapter;

19a

(5) incorporate (consistent with the national

standards, the other provisions of this chapter, and

any other applicable law) the relevant fishery conservation and management measures of the coastal

States nearest to the fishery and take into account

the different circumstances affecting fisheries from

different States and ports, including distances to

fishing grounds and proximity to time and area closures;

(6) establish a limited access system for the fishery in order to achieve optimum yield if, in developing such system, the Council and the Secretary take

into account—

(A)

present participation in the fishery;

(B) historical fishing practices in, and dependence on, the fishery;

(C)

the economics of the fishery;

(D) the capability of fishing vessels used in

the fishery to engage in other fisheries;

(E) the cultural and social framework relevant to the fishery and any affected fishing communities;

(F) the fair and equitable distribution of access privileges in the fishery; and

(G)

any other relevant considerations;

(7) require fish processors who first receive fish

that are subject to the plan to submit data which are

necessary for the conservation and management of

the fishery;

20a

(8) 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 of collecting data necessary for the conservation and management of the fishery; except that

such a vessel shall not be required to carry an observer on board if the facilities of the vessel for the

quartering of an observer, or for carrying out observer functions, are so inadequate or unsafe that the

health or safety of the observer or the safe operation

of the vessel would be jeopardized;

(9) assess and specify the effect which the conservation and management measures of the plan will

have on the stocks of naturally spawning anadromous

fish in the region;

(10) include, consistent with the other provisions

of this chapter, conservation and management measures that provide harvest incentives for participants

within each gear group to employ fishing practices

that result in lower levels of bycatch or in lower levels

of the mortality of bycatch;

(11) reserve a portion of the allowable biological

catch of the fishery for use in scientific research;

(12) include management measures in the plan to

conserve target and non-target species and habitats,

considering the variety of ecological factors affecting

fishery populations; and

(14)4 prescribe such other measures, requirements, or conditions and restrictions as are deter-

So in original.

No par. (13) has been enacted.

21a

mined to be necessary and appropriate for the conservation and management of the fishery.

Proposed regulations which the Council deems necessary or appropriate for the purposes of—

(1) implementing a fishery management plan or

plan amendment shall be submitted to the Secretary

simultaneously with the plan or amendment under section 1854 of this title; and

(2) making modifications to regulations implementing a fishery management plan or plan amendment may be submitted to the Secretary at any time

after the plan or amendment is approved under section 1854 of this title.

16 U.S.C. 1853a provides in pertinent part:

Limited access privilege programs

(a)

In general

After January 12, 2007, a Council may submit, and

the Secretary may approve, for a fishery that is managed under a limited access system, a limited access

privilege program to harvest fish if the program meets

the requirements of this section.

(e)

Cost recovery

In establishing a limited access privilege program, a

Council shall—

22a

(1) develop a methodology and the means to

identify and assess the management, data collection

and analysis, and enforcement programs that are directly related to and in support of the program; and

(2) provide, under section 1854(d)(2) of this title, for a program of fees paid by limited access privilege holders that will cover the costs of management,

data collection and analysis, and enforcement activities.

16 U.S.C. 1854(a) and (b) provides:

Action by Secretary

(a)

Review of plans

(1) Upon transmittal by the Council to the Secretary of a fishery management plan or plan amendment,

the Secretary shall—

(A) immediately commence a review of the plan

or amendment to determine whether it is consistent

with the national standards, the other provisions of

this chapter, and any other applicable law; and

(B) immediately publish in the Federal Register

a notice stating that the plan or amendment is available and that written information, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the

60-day period beginning on the date the notice is published.

(2) In undertaking the review required under paragraph (1), the Secretary shall—

23a

(A) take into account the information, views,

and comments received from interested persons;

(B) consult with the Secretary of State with respect to foreign fishing; and

(C) consult with the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea and to fishery access adjustments referred to in section 1853(a)(6) of this title.

(3) The Secretary shall approve, disapprove, or partially approve a plan or amendment within 30 days of the

end of the comment period under paragraph (1) by written notice to the Council. A notice of disapproval or

partial approval shall specify—

(A) the applicable law with which the plan or

amendment is inconsistent;

(B)

the nature of such inconsistencies; and

that could be taken by the Council to conform such

plan or amendment to the requirements of applicable

law.

If the Secretary does not notify a Council within 30 days

of the end of the comment period of the approval, disapproval, or partial approval of a plan or amendment, then

such plan or amendment shall take effect as if approved.

(4) If the Secretary disapproves or partially approves a plan or amendment, the Council may submit a

revised plan or amendment to the Secretary for review

under this subsection.

24a

(5) For purposes of this subsection and subsection

(b), the term “immediately” means on or before the 5th

day after the day on which a Council transmits to the

Secretary a fishery management plan, plan amendment,

or proposed regulation that the Council characterizes as

final.

(b)

Review of regulations

(1) Upon transmittal by the Council to the Secretary of proposed regulations prepared under section

1853(c) of this title, the Secretary shall immediately initiate an evaluation of the proposed regulations to determine whether they are consistent with the fishery management plan, plan amendment, this chapter and other

applicable law. Within 15 days of initiating such evaluation the Secretary shall make a determination and—

(A) if that determination is affirmative, the Secretary shall publish such regulations in the Federal

for a public comment period of 15 to 60 days; or

(B) if that determination is negative, the Secretary shall notify the Council in writing of the inconsistencies and provide recommendations on revisions

that would make the proposed regulations consistent

with the fishery management plan, plan amendment,

this chapter, and other applicable law.

(2) Upon receiving a notification under paragraph

(1)(B), the Council may revise the proposed regulations

and submit them to the Secretary for reevaluation under

paragraph (1).

(3) The Secretary shall promulgate final regulations

within 30 days after the end of the comment period un-

25a

der paragraph (1)(A). The Secretary shall consult with

the Council before making any revisions to the proposed

regulations, and must publish in the Federal Register

an explanation of any differences between the proposed

and final regulations.

16 U.S.C. 1855 provides in pertinent part:

Other requirements and authority

(d)

Responsibility of Secretary

The Secretary shall have general responsibility to

carry out any fishery management plan or amendment

approved or prepared by him, in accordance with the

provisions of this chapter. The Secretary may promulgate such regulations, in accordance with section 553 of

title 5, as may be necessary to discharge such responsibility or to carry out any other provision of this chapter.

(f )

Judicial review

(1) Regulations promulgated by the Secretary under this chapter and actions described in paragraph (2)

shall be subject to judicial review to the extent authorized by, and in accordance with, chapter 7 of title 5, if a

petition for such review is filed within 30 days after the

date on which the regulations are promulgated or the

action is published in the Federal Register, as applicable; except that—

(A)

section 705 of such title is not applicable, and

26a

(B) the appropriate court shall only set aside

any such regulation or action on a ground specified in

section 706(2)(A), (B), (C), or (D) of such title.

(2) The actions referred to in paragraph (1) are actions that are taken by the Secretary under regulations

which implement a fishery management plan, including

but not limited to actions that establish the date of closure of a fishery to commercial or recreational fishing.

(3)(A) Notwithstanding any other provision of law,

the Secretary shall file a response to any petition filed

in accordance with paragraph (1), not later than 45 days

after the date the Secretary is served with that petition,

except that the appropriate court may extend the period

for filing such a response upon a showing by the Secretary of good cause for that extension.

(B) A response of the Secretary under this paragraph shall include a copy of the administrative record

for the regulations that are the subject of the petition.

(4) Upon a motion by the person who files a petition

under this subsection, the appropriate court shall assign

the matter for hearing at the earliest possible date and

shall expedite the matter in every possible way.

16 U.S.C. 1862(a)-(e) provides:

North Pacific fisheries conservation

(a)

In general

The North Pacific Council may prepare, in consultation with the Secretary, a fisheries research plan for any

27a

fishery under the Council’s jurisdiction except a salmon

fishery which—

(1) requires that observers be stationed on fishing vessels engaged in the catching, taking, or harvesting of fish and on United States fish processors

fishing for or processing species under the jurisdiction of the Council, including the Northern Pacific

halibut fishery, for the purpose of collecting data necessary for the conservation, management, and scientific understanding of any fisheries under the Council’s jurisdiction; and

(2) establishes a system, or system,1 of fees, which

may vary by fishery, management area, or observer

coverage level, to pay for the cost of implementing

the plan.

(b)

Standards

(1) Any plan or plan amendment prepared under

this section shall be reasonably calculated to—

(A) gather reliable data, by stationing observers

on all or a statistically reliable sample of the fishing

vessels and United States fish processors included in

the plan, necessary for the conservation, management, and scientific understanding of the fisheries

covered by the plan;

(B) be fair and equitable to all vessels and processors;

law; and

So in original.

28a

(D) take into consideration the operating requirements of the fisheries and the safety of observers and fishermen.

(2) Any system of fees established under this section shall—

(A) provide that the total amount of fees collected under this section not exceed the combined

cost of (i) stationing observers, or electronic monitoring systems, on board fishing vessels and United

States fish processors, (ii) the actual cost of inputting

collected data, and (iii) assessments necessary for a

risk-sharing pool implemented under subsection (e)

of this section, less any amount received for such purpose from another source or from an existing surplus

in the North Pacific Fishery Observer Fund established in subsection (d) of this section;

(B) be fair and equitable to all participants in the

fisheries under the jurisdiction of the Council, including the Northern Pacific halibut fishery;

any costs of administrative overhead or other costs

not directly incurred in carrying out the plan;

(D) not be used to offset amounts authorized under other provisions of law;

(E) be expressed as a fixed amount reflecting actual observer costs as described in subparagraph (A)

or a percentage, not to exceed 2 percent, of the unprocessed ex-vessel value of fish and shellfish harvested under the jurisdiction of the Council, including the Northern Pacific halibut fishery;

29a

(F) be assessed against some or all fishing vessels and United States fish processors, including

those not required to carry an observer or an electronic monitoring system under the plan, participating in fisheries under the jurisdiction of the Council,

including the Northern Pacific halibut fishery;

(G) provide that fees collected will be deposited

in the North Pacific Fishery Observer Fund established under subsection (d) of this section;

(H) provide that fees collected will only be used

for implementing the plan established under this section;

(I) provide that fees collected will be credited

against any fee for stationing observers or electronic

monitoring systems on board fishing vessels and

United States fish processors and the actual cost of

inputting collected data to which a fishing vessel or

fish processor is subject under section 1854(d) of this

title; and

(J) meet the requirements of section 9701(b) of

title 31.

(c)

Action by Secretary

(1) Within 60 days after receiving a plan or plan

amendment from the North Pacific Council under this

section, the Secretary shall review such plan or plan

amendment and either (A) remand such plan or plan

amendment to the Council with comments if it does not

meet the requirements of this section, or (B) publish in

the Federal Register proposed regulations for implementing such plan or plan amendment.

30a

(2) During the 60-day public comment period, the

Secretary shall conduct a public hearing in each State

represented on the Council for the purpose of receiving

public comments on the proposed regulations.

(3) Within 45 days of the close of the public comment period, the Secretary, in consultation with the

Council, shall analyze the public comment received and

publish final regulations for implementing such plan.

(4) If the Secretary remands a plan or plan amendment to the Council for failure to meet the requirements

of this section, the Council may resubmit such plan or

plan amendment at any time after taking action the

Council believes will address the defects identified by

the Secretary. Any plan or plan amendment resubmitted to the Secretary will be treated as an original plan

submitted to the Secretary under paragraph (1) of this

subsection.

(d)

Fishery Observer Fund

There is established in the Treasury a North Pacific

Fishery Observer Fund. The Fund shall be available,

without appropriation or fiscal year limitation, only to

the Secretary for the purpose of carrying out the provisions of this section, subject to the restrictions in subsection (b)(2) of this section. The Fund shall consist of

all monies deposited into it in accordance with this section. Sums in the Fund that are not currently needed for

the purposes of this section shall be kept on deposit or

invested in obligations of, or guaranteed by, the United

States.

(e)

Special provisions regarding observers

(1) The Secretary shall review—

31a

(A) the feasibility of establishing a risk sharing

pool through a reasonable fee, subject to the limitations of subsection (b)(2)(E) of this section, to provide

coverage for vessels and owners against liability from

civil suits by observers, and

(B) the availability of comprehensive commercial

insurance for vessel and owner liability against civil

suits by observers.

(2) If the Secretary determines that a risk sharing

pool is feasible, the Secretary shall establish such a pool,

subject to the provisions of subsection (b)(2) of this section, unless the Secretary determines that—

(A) comprehensive commercial insurance is available for all fishing vessels and United States fish processors required to have observers under the provisions of this section, and

(B) such comprehensive commercial insurance

will provide a greater measure of coverage at a lower

cost to each participant.

10. 50 C.F.R. 648.11 provides in pertinent part:

Monitoring coverage.

(a) Coverage. The Regional Administrator may

request any vessel holding a permit for Atlantic sea scallops, NE multispecies, monkfish, skates, Atlantic mackerel, squid, butterfish, scup, black sea bass, bluefish,

spiny dogfish, Atlantic herring, tilefish, Atlantic surfclam, ocean quahog, or Atlantic deep-sea red crab; or a

moratorium permit for summer flounder; to carry a

NMFS-certified fisheries observer. A vessel holding a

permit for Atlantic sea scallops is subject to the addi-

32a

tional requirements specific in paragraph (g) of this section. Also, any vessel or vessel owner/operator that

fishes for, catches or lands hagfish, or intends to fish for,

catch, or land hagfish in or from the exclusive economic

zone must carry a NMFS-certified fisheries observer

when requested by the Regional Administrator in accordance with the requirements of this section. The

requirements of this section do not apply to vessels with

only a Federal private recreational tilefish permit.

(b) Facilitating coverage. If requested by the Regional Administrator or their designees, including

NMFS-certified observers, monitors, and NMFS staff,

to be sampled by an observer or monitor, it is the responsibility of the vessel owner or vessel operator to arrange for and facilitate observer or monitor placement.

Owners or operators of vessels selected for observer or

monitor coverage must notify the appropriate monitoring service provider before commencing any fishing trip

that may result in the harvest of resources of the respective fishery. Notification procedures will be specified

in selection letters to vessel owners or permit holder letters.

may waive the requirement to be sampled by an observer or 632 Fishery Conservation and Management

monitor if the facilities on a vessel for housing the observer or monitor, or for carrying out observer or monitor functions, are so inadequate or unsafe that the

health or safety of the observer or monitor, or the safe

operation of the vessel, would be jeopardized.

(d) Vessel requirements associated with coverage.

An owner or operator of a vessel on which a NMFScertified observer or monitor is embarked must:

33a

(1) Provide accommodations and food that are

equivalent to those provided to the crew.

(2) Allow the observer or monitor access to and use

of the vessel’s communications equipment and personnel upon request for the transmission and receipt of

messages related to the observer’s or monitor’s duties.

(3) Provide true vessel locations, by latitude and

longitude or loran coordinates, as requested by the observer or monitor, and allow the observer or monitor access to and use of the vessel’s navigation equipment and

personnel upon request to determine the vessel’s position.

(4) Notify the observer or monitor in a timely fashion of when fishing operations are to begin and end.

(5) Allow for the embarking and debarking of the

observer or monitor, as specified by the Regional Administrator, ensuring that transfers of observers or

monitors at sea are accomplished in a safe manner, via

small boat or raft, during daylight hours as weather and

sea conditions allow, and with the agreement of the observers or monitors involved.

(6) Allow the observer or monitor free and unobstructed access to the vessel’s bridge, working decks,

holding bins, weight scales, holds, and any other space

used to hold, process, weigh, or store fish.

(7) Allow the observer or monitor to inspect and

copy any the vessel’s log, communications log, and records associated with the catch and distribution of fish

for that trip.

(e) Vessel requirements associated with protected

species. The owner or operator of a vessel issued a sum-

34a

mer flounder moratorium permit, a scup moratorium

permit, a black sea bass moratorium permit, a bluefish

permit, a spiny dogfish permit, an Atlantic herring §

648.11 permit, an Atlantic deep-sea red crab permit, a

skate permit, or a tilefish permit, if requested by the observer or monitor, also must:

(1) Notify the observer or monitor of any sea turtles, marine mammals, summer flounder, scup, black sea

bass, bluefish, spiny dogfish, Atlantic herring, Atlantic

deep-sea red crab, tilefish, skates (including discards) or

other specimens taken by the vessel.

(2) Provide the observer or monitor with sea turtles,

marine mammals, summer flounder, scup, black sea

bass, bluefish, spiny dogfish, Atlantic herring, Atlantic

deep-sea red crab, skates, tilefish, or other specimens

taken by the vessel.

(f ) Coverage funded from outside sources. NMFS

may accept observer or monitor coverage funded by outside sources if:

(1) All coverage conducted by such observers or

monitors is determined by NMFS to be in compliance

with NMFS’ observer or monitor guidelines and procedures.

(2) The owner or operator of the vessel complies

with all other provisions of this part.

(3) The observer or monitor is approved by the Regional Administrator.

(g) Industry-funded monitoring programs. Fishery management plans (FMPs) managed by the New

England Fishery Management Council (New England

Council), including Atlantic Herring, Atlantic Salmon,

35a

Atlantic Sea Scallops, Deep-Sea Red Crab, Northeast

Multispecies, and Northeast Skate Complex, may include industry-funded monitoring programs (IFM) to

supplement existing monitoring required by the Standard Bycatch Reporting Methodology (SBRM), Endangered Species Act, and the Marine Mammal Protection

Act. IFM programs may use observers, monitors, including at-sea monitors and portside samplers, and electronic monitoring to meet specified IFM coverage targets. The ability to meet IFM coverage targets may be

constrained by the availability of Federal funding to pay

NMFS cost responsibilities associated with IFM.

(1) Guiding principles for new IFM programs.

The Council’s development of an IFM program must

consider or include the following:

(i)

A clear need or reason for the data collection;

(ii) Objective design criteria;

(iii) Cost of data collection should not diminish net

benefits to the nation nor threaten continued existence

of the fishery;

(iv) Seek less data intensive methods to collect data

necessary to assure conservation and sustainability when

assessing and managing fisheries with minimal profit

margins;

(v) Prioritize the use of modern technology to the

extent practicable; and

(vi) Incentives for reliable self-reporting.

(2) Process to implement and revise new IFM programs. New IFM programs shall be developed via an

amendment to a specific FMP. IFM programs implemented in an FMP may be revised via a framework ad-

36a

justment. The details of an IFM program may include,

but are not limited to:

(i)

Level and type of coverage target;

(ii) Rationale for level and type of coverage;

(iii) Minimum level of coverage necessary to meet

coverage goals;

(iv) Consideration of waivers if coverage targets

cannot be met;

(v) Process for vessel notification and selection;

(vi) Cost collection and administration;

(vii) Standards for monitoring service providers; and

(viii) Any other measures necessary to implement

the industry-funded monitoring program.

(3) NMFS cost responsibilities. IFM programs

have two types of costs, NMFS and industry costs.

Cost responsibilities are delineated by the type of cost.

NMFS cost responsibilities include the following:

(i) The labor and facilities associated with training

and debriefing of monitors;

(ii) NMFS-issued gear (e.g., electronic reporting aids

used by human monitors to record trip information);

(iii) Certification of monitoring service providers

and individual observers or monitors; performance monitoring to maintain certificates;

(iv) Developing and executing vessel selection;

(v) Data processing (including electronic monitoring video audit, but excluding service provider electronic

video review); and

37a

(vi) Costs associated with liaison activities between

service providers, and NMFS, Coast Guard, New England Council, sector managers, and other partners.

(vii) The industry is responsible for all other costs associated with IFM programs.

(4) Prioritization process to cover NMFS IFM cost

responsibilities. (i) Available Federal funding refers

to any funds in excess of those allocated to meet SBRM

requirements or the existing IFM programs in the Atlantic Sea Scallop and Northeast Multispecies FMPs

that may be used to cover NMFS cost responsibilities

associated with IFM coverage targets. If there is no

available Federal funding in a given year to cover

NMFS IFM cost responsibilities, then there shall be no

IFM coverage during that year. If there is some available Federal funding in a given year, but not enough to

cover all of NMFS cost responsibilities associated with

IFM coverage targets, then the New England Council

will prioritize available Federal funding across IFM

programs during that year. Existing IFM programs

for Atlantic sea scallops and Northeast multispecies

fisheries shall not be included in this prioritization process.

(ii) Programs with IFM coverage targets shall be

prioritized using an equal weighting approach, such that

any available Federal funding shall be divided equally

among programs.

(iii) After NMFS determines the amount of available

Federal funding for the next fishing year, NMFS shall

provide the New England Council with the estimated

IFM coverage levels for the next fishing year. The estimated IFM coverage levels would be based on the

38a

equal weighting approach and would include the rationale for any deviations from the equal weighting approach. The New England Council may recommend

revisions and additional considerations to the Regional

Administrator and Science and Research Director.

(A) If available Federal funding exceeds that needed

to pay all of NMFS cost responsibilities for administering IFM programs, the New England Council may request NMFS to use available funding to help offset industry cost responsibilities through reimbursement.

(B) [Reserved]

(iv) Revisions to the prioritization process may be

made via a framework adjustment to all New England

FMPs.

(v) Revisions to the weighting approach for the New

England Councilled prioritization process may be made

via a framework adjustment to all New England FMPs

or by the New England Council considering a new

weighting approach at a public meeting, where public

comment is accepted, and requesting NMFS to publish

a notice or rulemaking revising the weighting approach.

NMFS shall implement revisions to the weighting approach in a manner consistent with the Administrative

Procedure Act.

(5) IFM program monitoring service provider requirements. IFM monitoring service provider requirements shall be consistent with requirements in paragraph (h) of this section and observer or monitor requirements shall be consistent with requirements in

paragraph (i) of this section.

(6) Monitoring set-aside. The New England Council may develop a monitoring set-aside program for indi-

39a

vidual FMPs that would devote a portion of the annual

catch limit for a fishery to help offset the industry cost

responsibilities for monitoring coverage, including observers, at-sea monitors, portside samplers, and electronic monitoring.

(i) The details of a monitoring set-aside program

may include, but are not limited to:

(A) The basis for the monitoring set-aside;

(B) The amount of the set-aside (e.g., quota, days at

sea);

limit, differential days at sea counting, additional trips,

an allocation of the quota);

(D) The process for vessel notification;

(E) How funds are collected and administered to

cover the industry’s costs of monitoring; and

(F) Any other measures necessary to develop and

implement a monitoring set-aside.

(ii) The New England Council may develop new

monitoring set-asides and revise those monitoring setasides via a framework adjustment to the relevant FMP.

(h) Monitoring service provider approval and responsibilities—(1) General. An entity seeking to provide monitoring services, including services for IFM

Programs described in paragraph (g) of this section,

must apply for and obtain approval from NMFS following submission of a complete application. Monitoring

services include providing NMFS-certified observers,

monitors (at-sea monitors and portside samplers), and/or

40a

electronic monitoring. A list of approved monitoring

service providers shall be distributed to vessel owners

and shall be posted on the NMFS Fisheries Sampling

Branch (FSB) website: https://www.fisheries.noaa.gov/

resource/data/observer-providers-northeast-and-midatlantic-programs.

(2) [Reserved]

(3) Contents of application. An application to become an approved monitoring service provider shall contain the following:

(i) Identification of the management, organizational structure, and ownership structure of the applicant’s business, including identification by name and

general function of all controlling management interests

in the company, including but not limited to owners,

board members, officers, authorized agents, and staff.

If the applicant is a corporation, the articles of incorporation must be provided. If the applicant is a partnership, the partnership agreement must be provided.

(ii) The permanent mailing address, phone and fax

numbers where the owner(s) can be contacted for official

correspondence, and the current physical location, business mailing address, business telephone and fax numbers, and business email address for each office.

(iii) A statement, signed under penalty of perjury,

from each owner or owners, board members, and officers, if a corporation, that they are free from a conflict of

interest as described under paragraph (h)(6) of this section.

(iv) A statement, signed under penalty of perjury,

from each owner or owners, board members, and officers, if a corporation, describing any criminal convic-

41a

tion(s), Federal contract(s) they have had and the performance rating they received on the contracts, and previous decertification action(s) while working as an observer or monitor or monitoring service provider.

(v) A description of any prior experience the applicant may have in placing individuals in remote field

and/or marine work environments. This includes, but

is not limited to, recruiting, hiring, deployment, and personnel administrati

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