Respondents Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.
Supreme Court briefSep 15, 2023
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No. 22-451
In the Supreme Court of the United States
LOPER BRIGHT ENTERPRISES, ET AL., PETITIONERS
v.
GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
TODD KIM
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
MATTHEW GUARNIERI
Assistant to the Solicitor
General
RACHEL HERON
DINA B. MISHRA
DANIEL HALAINEN
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 2 presented by the petition.”
143 S. Ct. 2429. As stated in the petition, Question 2 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-ii.
(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 ...................... 11
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 ............................... 16
3. Chevron is rooted in a long tradition of
deference to the views of the Executive ......... 22
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 ............................................................. 32
3. As refined by this Court, Chevron is a
workable and familiar framework that
remains vitally important ................................ 35
C. Petitioners’ remaining arguments lack merit ...... 37
1. Chevron does not violate the separation of
powers or due process ...................................... 38
(III)
IV
Table of Contents—Continued:
Page
2. Chevron is consistent with the APA ............... 41
3. Petitioners’ policy concerns are unfounded
and, in any event, better addressed to
Congress ............................................................ 44
II. The Court should also reject petitioners’
alternative request to narrow Chevron ....................... 45
III. The judgment should be affirmed ................................ 47
Conclusion ................................................................................... 48
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
Alleyne v. United States, 570 U.S. 99 (2013) ...................... 32
Auer v. Robbins, 519 U.S. 452 (1997) .................................. 10
Batterton v. Francis, 432 U.S. 416 (1977) ........................... 13
Bowsher v. Synar, 478 U.S. 714 (1986)................................ 40
Brown v. United States, 113 U.S. 568 (1885) ...................... 23
Caperton v. A.T. Massey Coal Co.,
556 U.S. 868 (2009).............................................................. 40
Chevron U.S.A. Inc. v. NRDC, Inc.,
467 U.S. 837 (1984).....5, 7, 9-14, 17, 19-22, 26, 28, 33, 38, 45
City of Arlington v. FCC,
569 U.S. 290 (2013)............... 14, 15, 18, 21, 28, 38, 40, 42, 45
Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987) ..... 27
Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261 (2016) ...... 38
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
V
Cases—Continued:
Page
Edwards’ Lessee v. Darby,
25 U.S. (12 Wheat.) 206 (1827) ........................................... 22
Encino Motorcars, LLC v. Navarro,
579 U.S. 211 (2016).............................................................. 16
Entergy Corp. v. Riverkeeper, Inc.,
556 U.S. 208 (2009).............................................................. 12
Environmental Def. Fund v. NRC,
902 F.2d 785 (10th Cir. 1990) ............................................. 17
Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) ................... 21
Gray v. Powell, 314 U.S. 402 (1941) ..................................... 25
Gundy v. United States, 139 S. Ct. 2116 (2019).................. 40
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, 31
INS v. Chadha, 462 U.S. 919 (1983)..................................... 40
INS v. St. Cyr, 533 U.S. 289 (2001) ...................................... 14
Jacobs v. Prichard, 223 U.S. 200 (1912) ........................ 23, 24
Kendall v. United States ex rel. Stokes,
37 U.S. (12 Pet.) 524 (1838) ................................................ 24
Kimble v. Marvel Entm’t, LLC,
576 U.S. 446 (2015)............................................ 29, 30, 35, 45
King v. Burwell, 576 U.S. 473 (2015) ................................... 16
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) .......... 8, 10, 15, 17-19,
27-29, 33, 36, 38, 42, 43
Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007).................................................. 21, 27, 33
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)........... 39
Massachusetts v. Morash, 490 U.S. 107 (1989) .................. 27
Mayo Found. for Med. Educ. & Research v.
United States, 562 U.S. 44 (2011) ................................ 11, 27
VI
Cases—Continued:
Page
Michigan v. Bay Mills Indian Cmty.,
572 U.S. 782 (2014)................................................... 27-29, 37
Mitchell v. Budd, 350 U.S. 473 (1956) ................................. 26
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)........ 34, 35
National Lead Co. v. United States,
252 U.S. 140 (1920)........................................................ 23, 24
National R.R. Passenger Corp. v. Boston
& Me. Corp., 503 U.S. 407 (1992) ...................................... 31
Negusie v. Holder, 555 U.S. 511 (2009) ............................... 39
Otsuka Pharm. Co. v. Price,
869 F.3d 987 (D.C. Cir. 2017) ............................................. 17
Pauley v. BethEnergy Mines, Inc.,
501 U.S. 680 (1991).................................................. 15, 19, 27
Payne v. Tennessee, 501 U.S. 808 (1991) ............................ 32
Pearson v. Callahan, 555 U.S. 223 (2009) ........................... 32
Perez v. Mortgage Bankers Ass’n,
575 U.S. 92 (2015) ............................................................... 18
Pittston Stevedoring Corp. v. Dellaventura,
544 F.2d 35 (2d Cir. 1976), aff ’d,
432 U.S. 249 (1977).............................................................. 26
Quill Corp. v. North Dakota ex rel. Heitkamp,
504 U.S. 298 (1992).............................................................. 34
VII
Cases—Continued:
Page
Relentless, Inc. v. United States Dep’t of
Commerce, 62 F.4th 621 (1st Cir. 2023),
petition for cert. pending, No. 22-1219
(filed June 14, 2023) ...................................................... 46, 47
Russello v. United States, 464 U.S. 16 (1983) ..................... 44
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, 17, 27, 35, 39
Udall v. Tallman, 380 U.S. 1 (1965) .................................... 26
United States v. Alabama Great S. R.R.,
142 U.S. 615 (1892).............................................................. 23
United States v. Boyle, 469 U.S. 241 (1985) ........................ 27
United States v. City of Fulton, 475 U.S. 657 (1986) ......... 27
United States v. Eurodif S.A., 555 U.S. 305 (2009) ............ 27
United States v. Haggar Apparel Co.,
526 U.S. 380 (1999).............................................................. 31
United States v. Macdaniel,
32 U.S. (7 Pet.) 1 (1833) ...................................................... 22
United States v. Mead Corp.,
533 U.S. 218 (2001)............................................ 15, 16, 24, 35
United States v. Moore, 95 U.S. 760 (1878) .................. 23, 24
United States v. State Bank of N.C.,
31 U.S. (6 Pet.) 29 (1832) .................................................... 23
United States v. Vowell, 9 U.S. (5 Cranch) 368 (1809) ....... 22
West Virginia v. EPA, 142 S. Ct. 2587 (2022) .................... 16
Young v. Community Nutrition Inst.,
476 U.S. 974 (1986)........................................................ 27, 33
Zenith Radio Corp. v. United States,
437 U.S. 443 (1978).............................................................. 25
VIII
Constitution, statutes, and regulations:
Page
U.S. Const.:
Art. I ....................................................................... 9, 22, 38
Art. II, § 1, Cl. 1 ............................................................... 40
Art. III ............................................................... 8, 24, 38-40
Administrative Procedure Act, ch. 324,
60 Stat. 237 (1946) (5 U.S.C. 551 et seq.):
§ 10(e), 60 Stat. 243-244 ............................................ 41, 42
Administrative Procedure Act,
5 U.S.C. 701 et seq................................................................. 8
5 U.S.C. 706 .................................................9, 41, 42, 44, 1a
5 U.S.C. 706(2)(E) ..................................................... 41, 1a
5 U.S.C. 706(2)(F) ...................................................... 44, 1a
Clean Air Act, 42 U.S.C. 7401 et seq. ................................... 12
42 U.S.C. 7522(a) ............................................................. 13
42 U.S.C. 7604 .................................................................. 34
Clean Water Act, 33 U.S.C. 1251 et seq.:
33 U.S.C. 1365 .................................................................. 34
Endangered Species Act of 1973,
16 U.S.C. 1531 et seq.:
16 U.S.C. 1540(g) ............................................................. 34
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(36) ....................................................... 3, 8a
16 U.S.C. 1802(39) ............................................................. 2
16 U.S.C. 1821 .................................................................... 6
16 U.S.C. 1851(a)(2) ........................................................... 3
16 U.S.C. 1852(a) ............................................................... 2
16 U.S.C. 1852(b) ............................................................... 2
IX
Statutes and regulations—Continued:
Page
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) ....................................................... 3, 21a
16 U.S.C. 1853a(e) ..................................................... 6, 21a
16 U.S.C. 1854 ........................................................ 2, 3, 23a
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) ................................................... 3
16 U.S.C. 1857(1)(L) .......................................................... 3
16 U.S.C. 1858(g)(1) .......................................................... 3
16 U.S.C. 1858(g)(1)(D) ................................................... 46
16 U.S.C. 1862 ............................................................ 6, 26a
28 U.S.C. 2254(d)(1) ............................................................... 40
50 C.F.R.:
Section 648.11(g)(4)(iii)(A) ........................................ 5, 38a
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
Miscellaneous:
Administrative Procedure Act:
Legislative History, S. Doc. No. 248,
79th Cong., 2d Sess. (1946) ................................................ 42
Kent Barnett et al., Administrative
Law’s Political Dynamics,
71 Vand. L. Rev. 1463 (2018) ............................................. 20
X
Miscellaneous—Continued:
Page
Stephen G. Breyer et al., Administrative Law
and Regulatory Policy (5th ed. 2002)............................... 29
Comprehensive Regulatory Reform Act of 1995,
S. 343, 104th Cong. (Feb. 2, 1995) ..................................... 30
Kenneth Culp Davis, Administrative Law (1951) ....... 25, 43
John Dickinson, Administrative Procedure
Act: Scope and Grounds of Broadened
Judicial Review, 33 A.B.A. J. 434 (1947) ......................... 43
Harry T. Edwards, The Effects of
Collegiality on Judicial Decision
Making, 151 U. Pa. L. Rev. 1639 (2003) ........................... 20
83 Fed. Reg. 47,326 (Sept. 19, 2018) ...................................... 4
85 Fed. Reg. 7414 (Feb. 7, 2020) ...................................... 4, 47
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
Craig Green, Chevron Debates and
the Constitutional Transformation
of Administrative Law,
88 Geo. Wash. L. Rev. 654 (2020) ...................................... 24
H.R. Rep. No. 622, 114th Cong., 2d Sess. (2016) ................ 30
Brett M. Kavanaugh, Fixing Statutory
Interpretation, 129 Harv. L. Rev. 2118 (2016) ................ 21
Ronald M. Levin:
Identifying Questions of Law in
Administrative Law, 74 Geo. L.J. 1 (1985) ............ 39
The APA and the Assault on Deference,
106 Minn. L. Rev. 125 (2021) .................................... 43
XI
Miscellaneous—Continued:
Page
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) .......................... 42
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) ........................................... 23, 39
NOAA Fisheries, Status of Industry Cost
Reimbursement for Atlantic Herring
Industry-Funded Monitoring
(Sept. 7, 2023), perma.cc/8J62-3376 .................................... 5
Regulatory Accountability Act of 2017,
H.R. 5, 115th Cong. (2017) ................................................. 30
S. Rep. No. 752, 79th Cong., 1st Sess. (1945)...................... 43
S. Rep. No. 515, 94th Cong., 1st Sess. (1975) ........................ 2
Antonin Scalia, Judicial Deference to
Administrative Interpretations of
Law, 1989 Duke L.J. 511.............................................. 20, 26
Separation of Powers Restoration Act of 2016,
H.R. 4768, 114th Cong. (2016) ........................................... 30
Separation of Powers Restoration Act of 2023,
H.R. 288, 118th Cong. (June 15, 2023) .............................. 30
Peter L. Strauss, “Deference” Is Too
Confusing—Let’s Call Them “Chevron
Space” and “Skidmore Weight,”
112 Colum. L. Rev. 1143 (2012) ......................................... 20
Cass R. Sunstein, Chevron As Law,
107 Geo. L.J. 1613 (2019) ....................................... 29, 33, 44
U.S. Dep’t of Justice, Attorney General’s Manual on
the Administrative Procedure Act (1947) ........................ 42
In the Supreme Court of the United States
No. 22-451
LOPER BRIGHT ENTERPRISES, ET AL., PETITIONERS
v.
GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-37)
is reported at 45 F.4th 359. The opinion of the district
court (Pet. App. 38-114) is reported at 544 F. Supp. 3d
82.
JURISDICTION
The judgment of the court of appeals was entered on
August 12, 2022. The petition for a writ of certiorari
was filed on November 10, 2022, and granted on May 1,
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)
2
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 what is now known
as the Magnuson-Stevens 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) and
(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 plan and any proposed implementing regulations are submitted to NMFS and pub-
3
lished 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 the 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, see 16 U.S.C.
1802(36) (defining “person”); cf. 16 U.S.C. 1857(1)(D)(F) and (L) (distinguishing “observer[s]” from “officer[s]”). 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 procure the services of third-party monitors on some fish-
4
ing 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
costs per vessel were expected to be considerably lower
under the rule’s exemptions and waivers as promulgated. See, e.g., id. at 7425-7426, 7430.
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.
Br. in Opp. 25. 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 had ultimately “reimburse[d] 100 percent of the
industry’s at-sea monitoring costs” incurred under the
rule. NOAA Fisheries, Status of Industry Cost Reimbursement for Atlantic Herring Industry-Funded
Monitoring (Sept. 7, 2023), perma.cc/8J62-3376; 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. Pet. App.
44; see Compl. ¶¶ 11-18. They challenged the rule, alleging as relevant here that NMFS lacked authority to
require vessel owners to pay for third-party monitoring
services. Compl. ¶¶ 105-112.
2. The district court rejected petitioners’ challenge
at summary judgment. Pet. App. 38-114. 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. 59-69. The court emphasized that the Act empowers the Secretary to sanction owners who have contracted for required thirdparty observer services but failed to timely pay—a provision that “would be unnecessary if the [Act] prohibited” such industry-funded monitoring. Id. at 65 (citation omitted). And the court rejected petitioners’ invi-
6
tation to draw a negative inference from the Act’s provisions authorizing “the collection of fees or surcharges
to cover the cost of three monitoring programs elsewhere in the statute.” Id. at 66 (discussing 16 U.S.C.
1821, 1853a(e), 1862). The court explained that those
programs “differ[] from the industry-funded observer
measures at issue here, in which the fishing vessels contract with and make payments directly to third-party
monitoring service providers” instead of paying fees to
the agency. Id. at 67.
3. The court of appeals affirmed. Pet. App. 1-37. The
court observed that the Magnuson-Stevens Act “makes
clear” that NMFS “may direct vessels to carry at-sea
monitors.” Id. at 6. The court further observed that,
“[w]hen an agency establishes regulatory requirements, regulated parties generally bear the costs of
complying with them.” Id. at 7-8. The court declined to
draw a negative inference from the provisions authorizing fee-based monitoring in other circumstances. Id. at
9-12. The court identified substantial differences in
those programs, including that “money collected from
regulated parties passes through government coffers.”
Id. at 10. And any negative inference was “offset” by
the Act’s provision authorizing sanctions for untimely
payments owed to third-party observers, which is
“broadly applicable” and specifically “recognize[s] the
possibility of industry-contracted and funded observers.” Id. at 11-12. But the court ultimately viewed the
Act as not “wholly unambiguous,” id. at 8, and determined at “Step Two of the Chevron analysis” that
NMFS’s interpretation is at least “reasonable,” id. at
13-14.
Judge Walker dissented. Pet. App. 21-37. He acknowledged that NMFS has express authority to mandate
7
that monitors “be carried” on regulated vessels, id. at
28 (emphasis omitted), and that “[r]egulatory mandates
* * * often carry compliance costs,” id. at 29. He nonetheless would have held that the statute “unambiguously” withholds from NMFS the authority to require
owners to pay for third-party monitoring. Id. at 27.
SUMMARY OF ARGUMENT
I. The Court should not overrule Chevron U.S.A.
Inc. v. NRDC, Inc., 467 U.S. 837 (1984).
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 come
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
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
8
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 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. Petitioners’
contrary theories for giving Chevron little or no precedential weight lack merit and directly contradict the
Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019).
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.
9
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. And petitioners’ policy
arguments against Chevron are unsound and, in any
event, are properly addressed to Congress.
II. The Court should reject petitioners’ alternative
request to narrow Chevron so that it would no longer
apply when a statute is purportedly “silent” as opposed
to merely ambiguous. Petitioners offer no workable line
for distinguishing between silence and ambiguity, as this
case illustrates. The Magnuson-Stevens Act is not silent
about the agency’s authority to require owners of regulated vessels to retain and pay for third-party monitoring services, but in fact confirms the agency’s authority
in several provisions. And there is nothing controversial about requiring regulated parties to bear the costs
of retaining the services of third parties—like lawyers or
accountants—to comply with federal law.
III. 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.
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
10
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. Petitioners’ lead argument (Br.
18-22)—that Chevron should be given no stare decisis
effect at all, despite having provided the governing
framework for dozens of this Court’s decisions and
thousands of lower court decisions—is untenable under
first principles and flatly inconsistent with Kisor v.
Wilkie, 139 S. Ct. 2400 (2019). Like the Auer deference
doctrine to which the Court adhered in Kisor, see id. at
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 settled expectations in
virtually every area of conduct regulated by 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
11
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 a gap or ambiguity in the statute 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 uniformity in
the administration of federal law, and ensures greater
political accountability for the policy judgments that often inhere in the interpretation of a statute. 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
12
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—as the court
of appeals did here—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); see Pet. App. 13-14.
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.
13
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 rested in part on an inference of legislative intent—namely, a “presumption that Congress,
when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity
would be resolved, first and foremost, by the agency,
and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” 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)”).
Chevron recognized that Congress’s “delegation of
authority to the agency to elucidate a specific provision
of [a] statute” may also be “implicit rather than explicit.” 467 U.S. at 843-844. The Court explained that a
14
statute is appropriately understood to embody an implicit delegation if it “is silent or ambiguous with respect to [a] specific issue” and Congress has given the
agency rulemaking or adjudicatory authority to carry
the statute into effect. Id. at 843. Petitioners describe
that presumption of implicit authorization as resting on
a “fictionalized statement of legislative desire.” Pet. Br.
25 (citation omitted). But it is entirely sensible to presume that when Congress has not itself clearly answered an interpretive question in a statute, it intends
for its vesting of rulemaking or adjudicatory authority
in an agency—and the agency’s reasonable statutory interpretation in the exercise of that authority—to be respected by the courts. And whatever one might think of
Chevron’s legislative-intent rationale as an original
matter, the decision has 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, 320 n.45 (2001). This Court
has also instructed that courts should not “wave the am-
15
biguity 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. Use of those procedures is not an inflexible prerequisite for Chevron to apply, see id. at 231
& n.13, but they are nonetheless “significant * * * in
pointing to Chevron authority,” id. at 230-231. When
Congress authorizes an agency to speak with “the effect
of law” through rulemaking or adjudication, upholding
the agency’s interpretation under Chevron honors Con-
16
gress’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 held that Chevron does not
apply in certain “extraordinary cases” involving interpretive questions of vast “economic and political significance” that Congress cannot fairly be presumed to
have delegated to an agency. King v. Burwell, 576 U.S.
473, 485-486 (2015) (citations omitted). In those cases,
the Court has presumed that Congress generally “intends to make [such] major policy decisions itself.”
West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (citation omitted). When a case implicates this type of
“major question[],” the agency must identify “ ‘clear
congressional authorization’ ” to resolve the question
and cannot rely on Chevron’s background rule. Ibid.
(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 made by the Executive Branch,
if not clearly resolved by Congress. Federal agencies
can draw on their accumulated expertise and specialized technical and scientific 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 Con-
17
gress prefers for statutory gaps or ambiguities to be addressed “first and foremost[] by the agency.” 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, the decision to leave an ambiguity for an agency
to resolve may reflect a principled 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—such as the regulation of nuclear energy,
see, e.g., Environmental Def. Fund v. NRC, 902 F.2d
785, 788-789 (10th Cir. 1990) (applying Chevron to
agency’s “regulation of uranium and thorium mill tailings”), or the development of new drugs, see, e.g.,
Otsuka Pharm. Co. v. Price, 869 F.3d 987, 993-995 (D.C.
Cir. 2017) (applying Chevron to uphold agency’s interpretation that one drug’s three-year marketing exclusivity period does not bar approval of another drug with
a different “active moiety”). Congress’s decision to vest
agencies with interpretive authority to resolve ambigu-
18
ities 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).
b. Chevron also promotes national uniformity in federal law by giving effect to 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 federal law applies in a uniform manner across the
country. See Barnett & Walker Br. 29 (discussing empirical evidence). Although review by this Court can
likewise ensure 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 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
and whether it is wise as a policy matter—and agencies
must “respond to significant comments.” Perez v. Mort-
19
gage Bankers Ass’n, 575 U.S. 92, 96 (2015). Those procedures give the public greater and less costly opportunities to be heard than piecemeal litigation of the same
issues in different courts.
d. Finally—and of critical importance—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,” Chevron, 467 U.S. at 865, and
indeed is “often more a question of policy than of law,”
Pauley, 501 U.S. at 696. Such policy determinations are
properly made by the political Branches, rather than
courts. An agency may and often must rely on its “views
of wise policy to inform its judgments” about how to interpret a statute. Chevron, 467 U.S. at 865. By contrast, it would be an abuse of the judicial power for
courts to 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.
20
But if Congress has not done so, then Chevron properly
recognizes that the “formulation of policy” inherent in
choosing among multiple reasonable readings of a statute is primarily for the Executive. Id. at 843 (citation
omitted). 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); see Antonin
Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 515 (“Under our
democratic system, policy judgments are not for the
courts but for the political branches; Congress having
left the policy question open, it must be answered by the
Executive.”).
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; cf. Harry T. Edwards, The Effects
of Collegiality on Judicial Decision Making, 151 U. Pa.
L. Rev. 1639, 1654 (2003).
21
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;
Ford Motor Co. v. NLRB, 441 U.S. 488, 496-497 (1979).
In those circumstances, the agency’s interpretation “is
a policy decision” and “courts should be leery of secondguessing 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. 27) that Chevron’s respect for
“agency policymaking” represents an unjustified shift
in power from Congress to the Executive. But the alternative when a statute is genuinely ambiguous would
be to shift policymaking power to the Judiciary. When
a court instead upholds an agency’s reasonable interpretation under Chevron, the court respects the policy
judgment Congress made in vesting the agency with authority to implement the statute through rulemaking or
adjudication. Moreover, Chevron respects the 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
22
(see p. 40, infra), whether and to what extent to authorize an agency to resolve questions of policy is an Article
I question for Congress. 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. Petitioners’ selective account (Br. 3-5, 29-31) of what preceded Chevron
cannot be squared with the historical record.
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
23
(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) (describing as “settled” the principle that “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,” when “uncertainty or
ambiguity * * * is found in a statute”); 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 contend (Br. 31) that such cases merely
reflect a canon of construction giving weight to “contemporaneous and longstanding interpretations” of a
legal text. The Court emphasized those factors in some
24
instances, see, e.g., National Lead, 252 U.S. at 145-146;
Jacobs, 223 U.S. at 213-214, but did not frame its reasoning in terms of any canon as such. Petitioners also
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).
Moreover, 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 focus (Br. 30) on the Court’s observation in Decatur v. Paulding, 39 U.S. (14 Pet.) 497
(1840), that in a proper case outside of mandamus the
Court “would not be bound to adopt the construction”
of a statute “given by the head of a department.” Id. at
515. But at the same time, the Court emphasized that
it would not “revise [an executive officer’s] judgment in
any case where the law authorized him to exercise discretion, or judgment.” Ibid.; see, e.g., Kendall v. United
States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 610-614
(1838). Justice Scalia reasonably viewed that tradition,
which afforded Executive officials significant discretion
to interpret federal law, as an additional forerunner of
Chevron. At a minimum, the mandamus cases demonstrate that Article III itself was never understood to
compel de novo review of all questions of law.
25
b. A tradition of deference to agency interpretations
continued into the 20th century, both before and after
the APA’s enactment in 1946. 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”).
Any suggestion (e.g., Pet. Br. 5) that this Court radically changed course after the APA is mistaken. 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, 83-84 (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
26
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. To be sure, 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.” Scalia 516; see Scalia 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 traditions of deference reaching back to the Marshall Court. And at no point in
American history have the federal courts applied an in-
27
variable rule of “independent judicial resolution” for all
questions of law. Pet. Br. 4 (citation omitted).
B. Stare Decisis Principles Weigh Heavily In Favor Of Adhering To Chevron
Petitioners frame (Br. i) the principal question presented as whether 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.1 If Chevron were truly the “poster child of a case that was ‘egregiously wrong when decided,’ ” Pet. Br. 23 (citation
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.).
1
28
omitted), 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,
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. 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).
1. Congress has legislated against the backdrop of
Chevron for decades and could alter it at any time
a. As explained above (at pp. 13-14), Chevron rests
in part on a presumption that Congress intends an
agency, rather than a court, to exercise whatever judgment and discretion is left open when a statute “is silent
or ambiguous with respect to [a] specific issue.” 467
U.S. at 843. Congress has legislated against that “background rule” 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” in accordance with
Chevron. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366,
29
397 (1999). Indeed, Chevron could hardly have escaped
Congress’s notice; it is “one of the most cited cases in
all of American law,” Stephen G. Breyer et al., Administrative Law and Regulatory Policy 289 (5th ed. 2002),
and has been the subject of numerous bills and congressional hearings, discussed below.
Congress has enacted and amended countless statutes since 1984 for which a federal agency is authorized
to engage in rulemaking or adjudication—including the
Magnuson-Stevens Act provisions at issue here. Br. in
Opp. 18-19. 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 those changes on a prospective basis in order to
preserve settled law and protect reliance interests. But
30
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. 2 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 that “more than 150 consumer,
labor, research, faith, and other public interest groups”
had “strongly oppose[d]” the proposal, which they
viewed as “ ‘allowing for judicial activism at the expense
of agency expertise’ ”) (citation omitted). And Congress
has so far declined to make any wholesale changes.
c. Petitioners contend (Br. 18-22) that Chevron is
entitled to little or no stare decisis effect for various
reasons. The petitioner in Kisor made all of the same
kinds of arguments four years ago, to no avail. See Pet.
Br. at 49-50, Kisor, supra (No. 18-15). Remarkably, petitioners barely acknowledge—and fail to persuasively
See, e.g., Regulatory Accountability Act of 2017, H.R. 5, 115th
Cong. § 202 (2017); Separation of Powers Restoration Act of 2016,
H.R. 4768, 114th Cong. § 2 (2016). Congress has also considered
countervailing proposals to codify Chevron in whole or part, including one by then-Senator Robert Dole. See Comprehensive Regulatory Reform Act of 1995, S. 343, 104th Cong. § 2(a), at 24-25 (as introduced in Senate, Feb. 2, 1995).
2
31
distinguish—the Court’s extensive articulation and application of stare decisis principles in Kisor.
Under no sensible conception of stare decisis could
one of this Court’s most oft-invoked decisions be essentially worthless as precedent. To the contrary, Chevron
is entitled to the powerful form of stare decisis this
Court applies to precedents that Congress could override by legislation. Petitioners’ theories for watering
down or wholly dispensing with the stare decisis analysis lack merit.
Petitioners principally argue (Br. 19) that Chevron is
merely an “interpretive methodology,” akin to a statement in an opinion about the relative weight to be given
to legislative history. If that were true, then the lower
courts would not have been obligated to adhere to the
Chevron framework as a governing rule of law for the
last 40 years, but of course they have been—as petitioners acknowledge (Br. 36), and as this Court’s decisions
confirm. See, e.g., INS v. Aguirre-Aguirre, 526 U.S.
415, 425 (1999); United States v. Haggar Apparel Co.,
526 U.S. 380, 383 (1999). Petitioners also miss the mark
in asserting (Br. 20) that this Court has undermined
Chevron in recent years by failing to apply it. The
Court has relied on Chevron to uphold an agency’s reasonable interpretation of a statute at least 70 times, has
cited it approvingly many more times, and has often described it as a “rule” or the required approach. E.g.,
National R.R. Passenger Corp. v. Boston & Me. Corp.,
503 U.S. 407, 421-422 (1992). On the other side of the
ledger, petitioners at best identify some decisions in
which the Court arguably could have applied Chevron
but did not, sometimes without explaining why—e.g.,
because the Court found the statute clear, such that applying Chevron would have made no difference to the
32
outcome. Petitioners do not identify a single case in
which the Court found a statute ambiguous but nonetheless refused to give effect to an agency’s reasonable
interpretation of it, in contravention of Chevron.
Petitioners alternatively contend (Br. 21-22) that
Chevron is a “procedural” rule entitled to less respect
as precedent. Stare decisis concerns are less significant
for the “procedural and evidentiary rules” that structure judicial proceedings, Payne v. Tennessee, 501 U.S.
808, 828 (1991), because those rules “do not govern primary conduct,” Alleyne v. United States, 570 U.S. 99,
119 (2013) (Sotomayor, J., concurring). But Chevron is
not such a rule. Indeed, petitioners themselves contend
(Br. 38-40) that Chevron impacts the lives of ordinary
citizens by empowering agencies to issue interpretations of federal law that courts must respect if reasonable. Petitioners also predict (Br. 36-37) that overruling
Chevron would alter how Congress legislates, which
presupposes that Congress is relying on the current
framework in making legislative judgments. Chevron is
thus unlike the qualified-immunity precedent this Court
overruled in Pearson v. Callahan, 555 U.S. 223 (2009),
which affected the analytical sequence in which a court
was required to decide two legal questions but did not
affect the answers to those questions.
2. Overruling Chevron would upset reliance interests
a. Considerations of stare decisis are “at their acme
in cases involving property and contract rights, where
reliance interests are involved.” Payne, 501 U.S. at 828.
This is such a case. 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
33
contracts informed by agency interpretations upheld
under Chevron. Overruling Chevron would thus create
“an upheaval,” Sunstein 1670, potentially unsettling
both interpretations sustained under Chevron and the
downstream agency programs and interpretations that
build upon or presuppose 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.
This Court and the lower courts have regularly applied Chevron 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 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—a prospect particularly
34
likely to cause disruption in the context of complex
schemes with private-enforcement mechanisms, such as
the Clean Air Act, 42 U.S.C. 7604, the Clean Water Act,
33 U.S.C. 1365, and the Endangered Species Act of
1973, 16 U.S.C. 1540(g). At the same time, important
measures that were adopted to protect members of the
public would be thrown into doubt.
Petitioners assert that “concrete application[s] of
Chevron” would still have a “ ‘presumption of durability’ ” if Chevron were overruled. Pet. Br. 41 (citation
omitted). But when a court upholds an agency’s interpretation as reasonable under Chevron, the holding is
frequently limited to reasonableness. See National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545
U.S. 967, 982-983 (2005). Overruling Chevron would invite litigants to argue that, even if an agency’s interpretation was already sustained as reasonable in a prior
case, the court should nonetheless adopt some other
purportedly better interpretation—or that the agency’s
interpretation must be set aside as arbitrary because
the agency’s reasoning was based in part on its understanding of the interpretive latitude afforded under
Chevron. And even if specific prior decisions applying
Chevron could somehow be retained, petitioners fail to
address the numerous agency rules and orders that
have built upon those decisions but were not themselves
challenged in litigation. The prospect of cascading uncertainty is yet another reason to leave any substantial
changes to Congress, which could act prospectively.
b. Petitioners contend (Br. 41) that Brand X deprives regulated parties of any “justifiable reliance” interests. But relying upon the established precedent of
this Court “is always justifiable reliance.” Quill Corp.
v. North Dakota ex rel. Heitkamp, 504 U.S. 298, 320
35
(1992) (Scalia, J., concurring in part and concurring in
the judgment). Moreover, the APA and this Court’s
precedents require agencies to take reliance interests
into account when appropriate. 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, or market developments, 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 to respond to new information or
changed circumstances and would contribute to the “ossification” of federal regulatory policy. Ibid. At a minimum, petitioners fail to show that agencies change
course with such frequency under Chevron as to make
any private reliance on existing law unreasonable.
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” that the lower courts have
applied thousands of times since 1984. Pet. App. 5. 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
36
administrable approach to resolving disputes about
agency statutory interpretations.
Petitioners identify two purported workability problems with Chevron, but neither provides a reason to
overrule it. First, petitioners contend (Br. 33) that different judges have different thresholds for finding ambiguity, leading to inconsistent approaches in applying
Chevron. But some disagreement among reasonable jurists is inevitable under any interpretive methodology.
And overruling Chevron would exacerbate, not ameliorate, 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 federal regulatory policy.
Second, petitioners contend (Br. 34-35) 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
37
difficulty in applying the precedents they invoke. For
example, many applications of Chevron involve noticeand-comment rules or formal adjudications, for which
no elaborate “step zero” inquiry is necessary under
Mead. Pet. Br. 34.
* * * * *
Any fair evaluation of Chevron’s workability or the
wisdom of overruling it must account for the many benefits of the doctrine that this Court has recognized. As
discussed above (at pp. 16-22), 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 administration of federal law and greater political accountability for regulatory policy. And if Chevron were overruled, the federal
courts would inevitably be drawn into resolving what
are often, at bottom, questions of policy that arise in the
administration of statutes by Executive agencies. Taking that step 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 an undertaking distinct from mere politics.
Bay Mills, 572 U.S. at 798 (citation omitted). The Court
should reject petitioners’ effort to erode that distinction.
C. Petitioners’ Remaining Arguments Lack Merit
Petitioners’ remaining attacks on Chevron lack merit.
Chevron respects the separation of powers, accords
with due process, and is consistent with both the text
and history of the APA.
38
1. Chevron does not violate the separation of powers or
due process
a. Petitioners contend (Br. 23-26) 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 even when Congress has
not, Chevron still 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 p. 13,
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 a federal court to disregard Congress’s command and supplant the agency’s definition
with the court’s own. The same result should follow if,
as Chevron presumes, Congress has implicitly delegated authority to an agency to give content to the same
term. Article III draws no distinction between an express or implied legislative command. “[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, al-
39
locate 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). When a
court applies Chevron to sustain an agency’s reasonable
interpretation of an ambiguous statute, the court has
determined that Congress meant for the agency “to
possess whatever degree of discretion the ambiguity allows.” Smiley, 517 U.S. at 741. The court is not “abdicating its constitutional duty to ‘say what the law is’ 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).
Accepting petitioners’ contrary view of Article III
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 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
40
plain error during a criminal trial. Congress itself 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 statecourt 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 answers legal
questions that are themselves framed in terms of reasonableness.
b. Petitioners further err in contending (Br. 25-27)
that Chevron improperly grants Executive agencies Article I legislative powers. Congress must provide “an
intelligible principle” to guide the agency’s discretion,
Gundy v. United States, 139 S. Ct. 2116, 2123 (2019)
(plurality opinion) (citation omitted), but may authorize
an agency to fill in the details of the statutory scheme
by rulemaking or adjudication. Agencies have engaged
in such actions “since the beginning of the Republic.”
City of Arlington, 569 U.S. at 304 n.4. “These activities
take ‘legislative’ and ‘judicial’ forms, but they are exercises of * * * the ‘executive Power.’ ” Ibid. (quoting
U.S. Const. Art. II, § 1, Cl. 1); see Bowsher v. Synar,
478 U.S. 714, 733 (1986); INS v. Chadha, 462 U.S. 919,
953 n.16 (1983).
c. Petitioners’ due-process arguments (Br. 27-28)
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 evidence such bias when she follows the APA’s command
41
to review agency factfinding deferentially, 5 U.S.C.
706(2)(E). Petitioners liken (Br. 27) Chevron to “adjust[ing] the strike zone to favor the home team.” But
judges applying Chevron are just following the rules of
the game that this Court established decades ago, not
demonstrating any personal desire to see a favored
team win.
More broadly, petitioners’ view (Br. 15, 27-28, 38-39)
that Chevron unfairly advantages the federal government in disputes with the citizenry is 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 the emissions released from such sources. The government represents those citizens’ interests, too, when it defends an
agency’s interpretation.
2. Chevron is consistent with the APA
Petitioners briefly contend (Br. 28-29) that Chevron
is inconsistent with the APA provision in 5 U.S.C. 706,
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 originally enacted in 1946, see Administrative Procedure Act, ch. 324, § 10(e), 60 Stat. 243-244, and
42
it does not forbid the deference doctrines that this
Court developed before 1946 and continued to develop
and apply afterwards, including Chevron.
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 “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.”).
The history of the statute points in the same direction. “Section 706 was understood when enacted to ‘restate 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
43
of review”); S. Rep. No. 752, 79th Cong., 1st Sess. 38, 44
(1945) (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); 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.”); cf. pp. 22-25, supra (discussing pre-APA
case law). 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 suggest that the
APA was understood when enacted to require “independent judicial resolution” of all questions of law. Pet.
Br. 4 (citation omitted). Although one commentator expressed that view, see John Dickinson, Administrative
Procedure Act: Scope and Grounds of Broadened Judicial Review, 33 A.B.A. J. 434, 516 (1947), his “completely isolated” understanding of the APA’s judicialreview provisions contradicted the great weight of “contemporary 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, including Kenneth Culp Davis, [and] Louis L. Jaffee”) (footnote omitted); see, e.g.,
Davis 885. And in the years after the APA’s enactment,
this Court never “suggest[ed] that [the APA] prohibited
44
deference to agency interpretations.” Sunstein 1656;
see Sunstein 1650, 1653 (describing the lack of any compelling evidence that the APA was understood before or
immediately after its enactment to require de novo review of agency interpretations as “a dog who did not
bark in the night—a probative silence”).
Petitioners contend that Section 706 places review of
statutory and constitutional questions on “equal footing.” Pet. Br. 29 (citation omitted). But in neither case
does Section 706’s text specify the applicable standard
of review. By contrast, Section 706 expressly refers
elsewhere to “de novo” factfinding by the reviewing
court. 5 U.S.C. 706(2)(F). The presence of the “de
novo” modifier in that provision 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).
In any event, Section 706 and Chevron existed together for decades, with no suggestion by this Court of
any inconsistency. Section 706 cannot supply a persuasive basis for overruling Chevron at this late date.
3. Petitioners’ policy concerns are unfounded and, in
any event, better addressed to Congress
Petitioners’ remaining arguments (Br. 36-39) sound
in policy—for example, that Chevron creates undesirable incentives for agencies to push the boundaries of
statutes, that Chevron has undermined the legislative
process, or that Chevron makes the law more difficult
to ascertain for ordinary citizens. Petitioners do not
provide any empirical evidence to substantiate those
claims, and there are many reasons to doubt them. To
reiterate, Chevron comes into play only when a reviewing court cannot discern any clear answer to a given
question in the statutory text after exhausting the tra-
45
ditional tools of interpretation. Agencies, Congress,
and individuals all benefit from having Chevron’s clear
background rule for resolving such disputes. Petitioners also offer no reason to think that their policy concerns would be addressed by overruling Chevron. Doing so could easily make “legislative compromise” (Pet.
Br. 37) more difficult to achieve, not easier. In any
event, Congress itself is in a far better position than this
Court to evaluate such claims. Petitioners’ policy complaints are therefore “more appropriately addressed to
Congress.” Kimble, 576 U.S. at 464 (citation omitted).
II. THE COURT SHOULD ALSO REJECT PETITIONERS’
ALTERNATIVE REQUEST TO NARROW CHEVRON
As a fallback, petitioners ask (Br. 43) the Court to
“clarify” that Chevron “does not apply merely because
the statute is silent on a given issue.” That purported
clarification would contravene Chevron’s holding that
an agency’s interpretation should be reviewed for reasonableness “if the statute is silent or ambiguous with
respect to the specific issue.” 467 U.S. at 843 (emphasis
added). Of course, as petitioners emphasize (Br. 44), an
agency cannot fill the interstitial silences in a statute
except as authorized by Congress. But Chevron generally applies only if Congress has authorized the agency
to implement a statute through rulemaking or adjudication. See City of Arlington, 569 U.S. at 306-307; Chevron, 467 U.S. at 843-844. Petitioners fail to explain what
more Congress must say.
Petitioners also offer no workable line to distinguish
between statutory “silence” and ambiguity for Chevron
purposes, as this case illustrates. The central dispute
here is whether the Magnuson-Stevens Act authorizes
NMFS to require regulated vessels to procure and pay
for third-party monitoring services. To say that the
46
statute is “silent” on that issue begs the very question
that the parties are disputing. The government maintains that the statute is not silent but rather speaks to
the agency’s authority in multiple ways. See Br. in Opp.
14-19. Among other things, the Act permits the agency
to require vessels to “carr[y]” onboard “observers” for
data collection, 16 U.S.C. 1853(b)(8); defines “observer”
to include non-governmental personnel, 16 U.S.C.
1802(31); and empowers the agency to impose sanctions
on vessel owners that fail to timely pay for third-party
observer services, 16 U.S.C. 1858(g)(1)(D).
The court of appeals identified several textual considerations supporting the agency’s construction of the
statute and ultimately determined that the rule reflects
at least a “reasonable” interpretation. Pet. App. 8, 16;
accord Relentless, Inc. v. United States Dep’t of Commerce, 62 F.4th 621, 633-634 (1st Cir. 2023), petition for
cert. pending, No. 22-1219 (filed June 14, 2023). Petitioners offer no reason to think that the court would
have reached a different result if it had been required
to decide whether the statute is best characterized as
silent rather than ambiguous, or that the Chevron framework would be improved in other cases by engrafting
that additional step onto it.
Petitioners further contend (Br. 45-46) that the
Chevron inquiry should be different for “controversial”
agency rules. That characterization is in the eye of the
beholder and would not furnish a stable or principled
basis for judicial review—which already presupposes a
controversy between the parties. Petitioners’ only proffered ground (ibid.) for deeming this rule to be controversial is that the Act expressly authorizes NMFS to
establish fee-based monitoring programs in certain
other contexts. But whether those other provisions sup-
47
port a negative inference about the agency’s authority
to adopt this rule is a run-of-the-mill question of statutory interpretation. The D.C. and First Circuits both
considered that argument and correctly rejected it.
Pet. App. 16; Relentless, 62 F.4th at 631-633.
At any rate, there is nothing controversial or unusual
about requiring regulated parties to bear the costs of
complying with federal regulatory requirements. To
the contrary, that is the “default norm. ” Relentless, 62
F.4th at 629. If a statute required a party to submit
“independently audited financials,” it would be a nonstarter for a regulated party to claim that the government is responsible for paying the costs of retaining a
third-party auditor. Id. at 630. But if a dispute nonetheless arose about that issue, it would be anomalous to
treat the statute as “silent” merely because Congress
did not spell out the default expectation that a regulated
party, not the government, pays when that party must
procure the services of third parties—like accountants,
lawyers, or recordkeepers—to comply with federal law.
By the same token, if a statute required regulated parties to open their books for inspection by government
auditors, one would expect Congress to speak clearly
before regulated parties could be expected to bear the
cost of paying those employees for their time. But as
already explained, the observers at issue here are not
federal employees or officers. Requiring regulated parties to pay to procure the services of those third parties
is not materially different from requiring them to pay
the other costs they routinely incur to meet their legal
obligations. See 85 Fed. Reg. at 7422.
III. THE JUDGMENT SHOULD BE AFFIRMED
The decision below was an unremarkable application
of this Court’s settled precedent. The court of appeals
48
applied the traditional tools of statutory construction
and found the agency’s interpretation to be “reasonable” and therefore entitled to deference under Chevron.
Pet. App. 2. If the Court were to revisit Chevron, it
would be appropriate to remand the case to the court of
appeals for application of any new approach the Court
adopts. The Court limited its grant of certiorari to the
question whether Chevron should be overruled or modified and specifically declined to grant review of the separate question whether the Magnuson-Stevens Act authorizes the rule. 143 S. Ct. 2429.
But as petitioners do not dispute, if this Court declines to overrule or modify Chevron, the judgment below should be affirmed. And adhering to Chevron is the
proper course here, 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 KIM
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
MATTHEW GUARNIERI
Assistant to the Solicitor
General
RACHEL HERON
DINA B. MISHRA
DANIEL HALAINEN
Attorneys
SEPTEMBER 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
1.
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;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(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)
2a
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.
2.
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
3a
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-
4a
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-
5a
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;
6a
(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
7a
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.
8a
3.
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.
*
4.
*
*
*
*
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.
9a
(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;
(C) the time during which a foreign fishing vessel will engage in fishing within the exclusive eco-
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;
(C) establish a reasonable schedule of fees that
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
5.
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
(C) consistent with the national standards,
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
(C) the capacity and extent to which United
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
(C) the safety of human life at sea, including
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.
3
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
(C) any United States fish processor who
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
(C) with respect to any closure of an area under
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
(C) transshipment or transportation of fish
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-
4
So in original.
No par. (13) has been enacted.
21a
mined to be necessary and appropriate for the conservation and management of the fishery.
(c) Proposed regulations
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.
6.
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.
*
7.
*
*
*
*
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
(C) recommendations concerning the actions
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
Register, with such technical changes as may be necessary for clarity and an explanation of those changes,
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.
8.
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.
*
9.
*
*
*
*
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;
(C) be consistent with applicable provisions of
law; and
1
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;
(C) provide that fees collected not be used to pay
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.
(c) Safety waivers. The Regional Administrator
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);
(C) How the set-aside is allocated to vessels required to pay for monitoring (e.g., an increased trip
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 r
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