United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2022 Decided August 12, 2022 

No. 21-5166 

LOPER BRIGHT ENTERPRISES, INC., ET AL., 

APPELLANTS

CAPE TRAWLERS, INC., ET AL., 

APPELLEES

v. 

GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS SECRETARY 

OF COMMERCE, ET AL., 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:20-cv-00466) 

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

on the briefs was Ryan P. Mulvey. 

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

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

Todd Kim, Assistant Attorney General, and Rachel Heron, 

Attorney. 
2 

Before: SRINIVASAN*

, Chief Judge, ROGERS and WALKER, 

Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS. 

Dissenting opinion by Circuit Judge WALKER. 

ROGERS, Circuit Judge: In implementing an Omnibus 

Amendment that establishes industry-funded monitoring 

programs in New England fishery management plans, the 

National Marine Fisheries Service promulgated a rule that 

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

of commercial herring fishing companies contend that the 

statute does not specify that industry may be required to bear 

such costs and that the process by which the Service approved 

the Omnibus Amendment and promulgated the Final Rule was 

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

judgment to the Service based on its reasonable interpretation 

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

through a process that afforded the requisite notice and 

opportunity to comment. 

I. 

 The Magnuson-Stevens Fishery Conservation and 

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

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

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

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

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

Secretary’s delegee, to implement a comprehensive fishery 

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

*

 Chief Judge Srinivasan was drawn to replace Judge Jackson, 

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

this opinion. 
3 

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

enforcement of “fishery management plans.” Plans and 

periodic amendments are developed by regional fishery 

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

“necessary and appropriate for the conservation and 

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

council may include specific conservation and management 

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

other measures “determined to be necessary and appropriate,” 

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

implementing regulations. Id. § 1853(c). 

 Nine fisheries, including the Atlantic herring fishery, are 

managed by the New England Fishery Management Council 

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

submitted the Omnibus Amendment to the Service, which 

published a notice of availability and subsequently opened a 

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

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

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

Omnibus Amendment on December 18, 2018, and published 

the Final Rule on February 7, 2020.1

 The Amendment and the 

Rule set out a standardized process to implement and revise 

industry-funded monitoring programs in the New England 

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

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

monitoring is unavailable or certain exemptions based on use 

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

85 Fed. Reg. at 7,417, 7,419–20. 

1

 Industry-Funded Monitoring: An Omnibus Amendment to the 

Fishery Management Plans of the New England Fishery Management 

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

Fishery Conservation and Management Act Provisions; Fisheries of 

the Northeastern United States; Industry-Funded Monitoring Final 

Rule, 85 Fed. Reg. 7,414 (Feb. 7, 2020) (“Final Rule”). 
4 

The monitoring program for the Atlantic herring fishery 

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

target is met through a combination of limited Service-funded 

monitoring pursuant to the fishery management plan, see 16 

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

and Service-funded monitoring, industry-funded monitoring, 

with owners of vessels selected by the Service to carry an 

industry-funded monitor and pay the associated costs (other 

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

The Service estimated industry costs to the herring fishery “at 

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

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

 Appellants are commercial fishermen who regularly 

participate in the Atlantic herring fishery. They filed a lawsuit 

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

to create industry-funded monitoring requirements and that the 

rulemaking process was procedurally irregular. The district 

court ruled on the parties’ cross-motions for summary 

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

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

II. 

On appeal, appellants’ challenge to the Final Rule presents 

the question how clearly Congress must state an agency’s 

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

Supreme Court precedent that Congress must clearly indicate 

its intention to delegate authority to take action that will have 

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

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

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

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

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

significance’ of that assertion, provide a ‘reason to hesitate 
5 

before concluding that Congress’ meant to confer such 

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

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

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

Service’s challenged actions are distinct. Congress has 

delegated broad authority to an agency with expertise and 

experience within a specific industry, and the agency action is 

so confined, claiming no broader power to regulate the national 

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

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

whether the implementing agency’s interpretation is 

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

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

unambiguously resolve whether the Service can require 

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

Act as allowing it to do so is reasonable. 

A. 

Appellants contend the Act permits the Service to require 

at-sea monitors but prohibits any industry-funded monitoring 

programs beyond three circumstances. The Service responds 

that the Act unambiguously authorizes it to implement 

industry-funded monitoring requirements. The court applies 

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

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

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

court, “employing traditional tools of statutory interpretation,” 

evaluates “whether Congress has directly spoken to the precise 

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

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

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

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

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

Chevron Step Two the court defers to any “permissible 
6 

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

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

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

language employed by Congress and the assumption that the 

ordinary meaning of that language accurately expresses the 

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

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

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

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

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

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

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

monitors but leaves unanswered whether the Service must pay 

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

at-sea monitoring mandated by a fishery management plan. 

When Congress has not “directly spoken to the precise question 

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

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

The Service maintains that two additional features of the 

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

establish authority to require industry-funded monitoring. 

First, Section 1853 contains two “necessary and appropriate” 

clauses that permit plans approved by the Service to “prescribe 

such other measures, requirements, or conditions and restrictions 

as are determined to be necessary and appropriate for the 

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

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

and appropriate for the conservation and management of the 

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

impose permit sanctions for failure to make “any payment 

required for observer services provided to or contracted by an 

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

various acts committed against “any data collector employed 
7 

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

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

Taken together, these provisions of the Act signal the 

Service may approve fishery management plans that mandate 

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

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

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

implement measures “necessary and appropriate” — a 

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

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

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

penalties in Sections 1857 and 1858 further indicate that 

Congress anticipated industry’s use of private contractors. Still 

unresolved, however, is the question of whether the Service 

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

mandated by a fishery management plan. 

When an agency establishes regulatory requirements, 

regulated parties generally bear the costs of complying with 

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

Supreme Court held that an agency implementing a policy 

under wide-ranging “necessary and appropriate” authority 

must consider the costs of compliance. That principle 

presupposes that a “necessary and appropriate” clause vests an 

agency with some authority to impose compliance costs. Here, 

the Act’s national standards for fishery management plans 

direct the Service to “minimize costs” of conservation and 

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

“minimize adverse economic impacts” of such measures “on 

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

admonitions to reduce costs seem to presume that the Service 

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

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

any other provision of the Act imposes a funding-related 
8 

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

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

industry-funded monitoring. 

The inference that the Service may require fishing vessels 

to incur costs associated with meeting the 50-percent 

monitoring coverage target is not, however, wholly unambiguous. 

Nothing in the record definitively establishes whether at-sea 

monitors are the type of regulatory compliance cost that might 

fall on fishing vessels by default or whether Congress would 

have legislated with that assumption. Absent such an 

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

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

penalty provisions, unambiguously affords the Service power 

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

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

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

1862, which create monitoring programs with some similarities 

to the Omnibus Amendment’s monitoring program, give rise 

by negative implication to the inference that the Act 

unambiguously deprives the Service of authority to create 

additional industry-funded monitoring requirements. This 

expressio unius reasoning, “when countervailed by a broad 

grant of authority contained within the same statutory 

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

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

2014). Examination of each of the three monitoring programs 

further illustrates why appellants’ view is unfounded. 

First, the limited access privilege program created in 

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

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

collection and analysis, and enforcement activities.” It does 

not list monitoring as a covered activity. See id. Although 
9 

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

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

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

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

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

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

to appellants in this context because there is no relevant 

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

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

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

Service’s discretion to impose monitoring costs on industry 

under Section 1853(b)(8). 

Second, the North Pacific Council monitoring program 

created by Section 1862, which “requires that observers be 

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

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

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

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

deposited into a North Pacific Fishery Observer Fund 

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

disbursement to cover the costs of the monitoring program, see 

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

that the Service lacks authority to require industry-funded 

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

institutes a different funding mechanism from that of the 

Omnibus Amendment and Final Rule: under Section 1862, 

money collected from regulated parties passes through 

government coffers, while under the Omnibus Amendment and 

Final Rule, regulated vessel owners pay third-party monitors 

directly to supply services required for regulatory compliance. 

Congress’s specific authorization of a single fishery program 

funded by fees paid to the government does not unambiguously 

demonstrate that the Act prohibits the Service from implementing 
10 

a separate program in which industry pays the costs of compliance 

to service providers without any government pass-through. 

Section 1821 creates a foreign fishing vessel monitoring 

program, which authorizes the Secretary to impose a 

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

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

observers on foreign vessels are funded through “surcharges [to 

owners] collected by the Secretary” and deposited in an 

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

analogous to the North Pacific Council monitoring program. In 

the event of insufficient appropriations, however, Section 1821 

establishes a “supplementary observer program” by which 

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

and operators of foreign fishing vessels for observer services.” 

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

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

Congress implicitly intended to preclude the Service from 

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

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

monitoring in the foreign-fishing context has no unambiguous 

consequences for the Service’s authority to implement 

industry-funded monitoring in other contexts. By providing for 

industry-funded observers as part of a contingency in the 

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

Congress intended implicitly to preclude the Service from 

requiring industry-funded monitoring in all other 

circumstances. Further, the Act’s penalty provisions offset 

negative inferences that might be drawn from Section 1821. See 

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

provisions indicate that Congress anticipated the use of 

privately retained contractors to comply with the Act’s 

requirements. And the penalties in a broadly applicable section 

of the Act appear to recognize the possibility of industrycontracted and funded observers beyond the foreign-vessel 
11 

context. If Congress had intended for penalties associated with 

industry-funded monitoring to apply only in the foreign fishing 

context, the court would expect that Congress in the penalty 

provisions would have specifically referenced foreign vessels 

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

Finally, appellants claim that, given the substantial costs 

of industry-funded monitoring to herring fishing companies, 

“Congress would not have delegated ‘a decision of such 

economic and political significance to an agency in so cryptic 

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

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

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

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

delegated authority beyond its regulatory lane or inconsistent 

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

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

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

The Service does not do so here because its interpretation falls 

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

expressly envisions that monitoring programs will be created 

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

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

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

Act contains no bar on industry-funded monitoring programs, 

instead permitting plans to “prescribe such other measures, 

requirements, or conditions and restrictions” as are “necessary 

and appropriate for the conservation and management of the 

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

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

“necessary and appropriate” clauses as encompassing industryfunded monitoring thus does not exceed statutory limits. 

Nonetheless, the text does not compel the Service’s 

interpretation of the Act as granting authority by omission to 
12 

require industry-funded monitoring. Courts “construe [a 

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

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

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

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

requirements included in fishery management plans. Nor do 

the traditional tools of statutory interpretation provide another 

basis on which to conclude that the Act unambiguously 

supports the Service’s interpretation. Congress has thus 

provided no wholly unambiguous answer at Chevron Step One 

as to whether the Service may require industry-funded 

monitoring in the Omnibus Amendment and Final Rule. 

Although an agency’s interpretation need not be compelled by 

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

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

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

Step Two of the Chevron analysis. 

Pursuant to Step Two, an agency’s interpretation can 

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

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

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

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

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

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

additional industry-funded monitoring programs is reasonable. 

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

appropriate” clauses, demonstrates that the Act considers 

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

conservation and management goals. That conclusion provides 

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

to implement a monitoring program, including the choice of 

funding mechanism and cost-shifting determinations, are 

likewise “necessary and appropriate” to implementation of the 

Act. See Final Rule, 85 Fed. Reg. at 7,422–23. 
13 

In addition, the Final Rule provides a reasoned explanation 

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

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

“for the purpose of collecting data necessary for the 

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

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

industry-funded monitoring to reach the new 50-percent 

coverage target would best serve the Act’s conservation and 

management goals. In particular, increased monitoring would 

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

more accurately monitor annual catch limits, and/or provide 

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

also stated that industry-funded monitoring was consistent with 

other provisions of the Act that impose compliance costs on 

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

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

The Service’s interpretation of the Act is therefore owed 

deference at Chevron Step Two. 

Our dissenting colleague agrees that the Chevron 

framework governs this case but disagrees about how it applies, 

asserting that the court should reach Chevron Step Two only if 

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

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

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

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

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

instructs that judicial deference is appropriate “if the statute is 

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

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

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

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

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

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

to recent cases in which the Supreme Court has not applied the 
14 

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

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

prerogative of overruling its own decisions,” Agri Processor 

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

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

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

Not every statutory silence functions as an implicit 

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

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

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

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

Chevron, such silence in the context of a comprehensive 

statutory fishery management program for the Service to 

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

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

Supreme Court has instructed that a broad “necessary and 

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

with flexibility” to act in furtherance of statutory goals, 

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

the Act’s conservation and management goals. Speculation 

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

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

overlooks Chevron Step Two’s reasonableness limitation. Nor, 

in these circumstances, is Congress’s provision for industryfunded monitoring in three unique situations properly 

understood to eliminate the Service’s authority to create 

industry-funded monitoring programs in any other situation, 

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

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

industry-funded monitoring was reasonable. 
15 

B. 

Appellants’ alternative challenge emphasizes that this 

court reviews the grant of summary judgment de novo and the 

Omnibus Amendment and Final Rule were enacted and 

adopted pursuant to the Administrative Procedure Act 

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

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

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

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

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

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

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

regulation exceeds the agency’s statutory authority” before it 

determines whether the regulation “is arbitrary or capricious,” 

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

as is addressed in subsection A. 

 Appellants urge that the Omnibus Amendment and Final 

Rule are arbitrary and capricious, even if statutorily authorized, 

“because they do not adequately account for the economic 

cost” of industry-funded monitoring for participants in the 

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

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

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

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

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

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

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

directive that fishery management plans minimize adverse 

effects and costs to the fishing community wherever possible. 

See 16 U.S.C. § 1851(a)(7), (8). 

The record shows the Service took note of evidence that 

the Atlantic herring industry-funded monitoring program costs 
16 

impacted vessels $710 per day and could reduce annual returns 

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

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

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

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

its efforts to minimize economic impacts on herring fishery 

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

may request waivers of industry-funded monitoring coverage 

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

and midwater trawl vessels may comply with the requirement 

through electronic monitoring instead of retaining a private 

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

explained its choice of a 50-percent coverage target as 

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

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

adopted exemptions designed to address adverse effects on 

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

Service’s decision to proceed with an industry-funded 

monitoring requirement after extensive deliberations on the 

question of cost was not arbitrary or capricious. 

C. 

 Finally, appellants contend that promulgation of the 

Omnibus Amendment and the Final Rule was procedurally 

improper. Specifically, appellants challenge the Service’s 

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

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

overlapping comment periods for the Amendment and the 

Rule. Neither contention is persuasive. 

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

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

availability for the Omnibus Amendment three days after the 

statutory deadline, see 16 U.S.C. § 1854(a)(1)(A)–(B), (5), and 
17 

adopted the Final Rule more than a year after its comment 

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

the requirement that implementing regulations be promulgated 

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

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

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

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

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

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

do not identify any harm or prejudice resulting from the alleged 

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

for noncompliance with statutory timing provisions, the federal 

courts will not in the ordinary course impose their own coercive 

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

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

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

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

does not penalize missed deadlines, and appellants do not point 

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

 Appellants’ suggestion that the Service “prejudged the 

legality” of the Omnibus Amendment through its use of 

overlapping comment periods with the Final Rule fares no 

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

amendment and its accompanying regulations occur in tandem. 

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

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

initiate implementing regulations of its own accord, subject to 

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

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

accept and consider public comments on its proposal.” 

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

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

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

Amendment and the Final Rule and stated that it would 
18 

consider comments received on either document in its decision 

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

The Act does not require publication of approval of plan 

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

could address public comments on the Omnibus Amendment 

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

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

consider comments on plan amendments and implementing 

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

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

fair notice and a meaningful opportunity to comment as the 

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

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

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

summary judgment to the Service and denial of summary 

judgment to appellants. 
WALKER, Circuit Judge, dissenting:

Did Congress authorize the National Marine Fisheries 

Service to make herring fishermen in the Atlantic pay the

wages of federal monitors who inspect them at sea?

Congress unambiguously did not.

I

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

group.

1

 The Magnuson-Stevens Act governs all fisheries in 

federal waters.

2

 Its goal is to keep the fisheries healthy so that 

Americans can enjoy the economic, recreational, and 

nutritional benefits of a marine ecosystem.3

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

Fisheries Service to approve fishery management plans, which 

set rules for the fisheries they govern.

4 Those plans are 

developed by regional councils and include provisions

specifying things like the number of fish that will be harvested 

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

reporting methods required.

5

 When a plan needs updating, the

1 16 U.S.C. § 1802(13). 

2

Id. § 1801 et seq.

3

Id. § 1801(b).

4

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

from the Secretary of Commerce. Although the Appellees also 

include the Secretary of Commerce, the Department of Commerce, 

and officials in the National Oceanic and Atmospheric 

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

because they are the most direct regulators in this matter.

5

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

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

representatives from various interested sectors (commercial, 

recreational, governmental, and academic). Id. § 1852.
2

relevant council submits a proposed amendment to the 

Fisheries Service for review.

6 The council may also propose 

corresponding implementing regulations.7 Then the Fisheries 

Service must publish those proposals, take comments, and

approve or disapprove of the proposals.

8

 If it approves, it will 

promulgate them as final regulations.9

That’s what happened here. The New England Council

amended the Atlantic herring fishery management plan to 

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

fishing trips, and the Fisheries Service approved its 

amendment.

10

 The at-sea monitors are third-party inspectors

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

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

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

Act allows the Fisheries Service to impose this monitoring 

requirement.

But providing a monitor for a days-long fishing voyage 

can get expensive, and the Fisheries Service has had trouble 

affording its preferred monitoring programs with just its 

congressionally appropriated funds.

11

 Add to that a further 

6

Id. § 1852(h)(1).

7

Id. § 1853(c).

8

Id. § 1854(a).

9

Id. § 1854(b)(3).

10 Magnuson-Stevens Fishery Conservation and Management Act 

Provisions; Fisheries of the Northeastern United States; Industry 

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

11 Fisheries of the Northeastern United States; Atlantic Herring 

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

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

legal way to use industry funding to increase observer coverage as
3

problem for the Fisheries Service: Congress generally prohibits 

an agency from collecting fees and keeping the money from 

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

express statutory authority to keep and spend that money, 

agencies can only spend as much money as Congress 

appropriates.13 

Here, the Fisheries Service attempted a workaround. It 

decided to make fishing companies, like Loper Bright 

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

Fisheries Service estimates that for the Atlantic Herring 

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

could reduce financial returns to the fishermen by twenty

percent.

The fishermen challenged the amendment and the 

implementing regulations in district court and now appeal the 

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

able to commit to paying for increased observer coverage in the 

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

States; Atlantic Mackerel, Squid, and Butterfish Fisheries; 

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

(Without industry funding, “increased observer coverage levels 

would amount to an unfunded mandate, meaning regulations would 

obligate [the Fisheries Service] to implement something it cannot 

pay for.”).

12 31 U.S.C. § 3302(b) (With one unrelated exception, “an official or 

agent of the Government receiving money for the Government from 

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

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

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

Government or of the District of Columbia government may not—

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

amount available in an appropriation or fund for the expenditure or 

obligation”).
4

court’s decision granting summary judgment for the Fisheries 

Service.14 

I would reverse the judgment of the district court because 

the Magnuson-Stevens Act unambiguously does not authorize 

the Fisheries Service to force the fishermen to pay the wages 

of federally mandated monitors.

II

Agencies are creatures of Congress, so they have no 

authority apart from what Congress bestows.15 

The Fisheries Service points to the Magnuson-Stevens Act 

as its source of authority for requiring fishermen to pay for atsea monitors. We review the Fisheries Service’s interpretation 

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

127 (D.D.C. 2021).

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

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

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

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

agency may not promulgate even reasonable regulations that claim a 

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

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

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

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

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

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

axiomatic that an administrative agency’s power to promulgate 

legislative regulations is limited to the authority delegated by 

Congress.”).
5

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

we ask “whether Congress has directly spoken to the precise 

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

17

 At that 

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

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

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

loses.

19

 Only if the statute is ambiguous, and only if “Congress 

either explicitly or implicitly delegated authority to cure that 

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

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

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

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

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

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

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

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

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

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

premises that underlie Chevron and how courts have implemented 

that decision.” (citations omitted)). 

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

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

2000).

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

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

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

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

20 Hearth, Patio & Barbecue Association v. United States

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

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

explicitly or implicitly delegated authority to cure that ambiguity. 

Mere ambiguity in a statute is not evidence of congressional 

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

Federal Trade Commission, 430 F.3d 457, 469 (D.C. Cir. 2005))).
6

Congress’s silence on a given issue does not automatically 

create such ambiguity or give an agency carte blanche to speak 

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

a lack of authority.22

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

the challenger’s job to show that Congress has specifically 

prohibited the challenged action.23 Holding challengers to that 

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

must positively demonstrate where Congress explicitly or 

implicitly empowered it to act.

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

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

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

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

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

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

express withholding of such power”).

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

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

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

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

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

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

matter of basic separation of powers and administrative law. The 

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

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

courts to presume a delegation of power absent an express

withholding of such power, agencies would enjoy virtually limitless 

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

likely with the Constitution as well.”). 

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

Fishermens Association v. National Marine Fisheries Service, 968 

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

does not delegate authority merely by not withholding it”).
7

III

Both sides agree that nowhere in the Magnuson-Stevens 

Act does Congress explicitly empower the Fisheries Service to 

require the Atlantic herring fishermen to fund an at-sea 

monitoring program. So to prevail, the Fisheries Service must 

point to some implicit delegation of that authority. 

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

authorize the Fisheries Service to require these fishermen to 

pay the wages of at-sea monitors.25

A

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

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

may:

require that one or more observers be carried on 

board a vessel of the United States engaged in fishing 

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

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

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

fishermen challenged the same industry-funding provision, and 

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

Fisheries Service “reasonably interpreted” the Magnuson-Stevens 

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

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

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

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

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

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

but the First Circuit affirmed on timeliness grounds, expressly 

declining to decide whether industry funding violated the Act.).
8

of collecting data necessary for the conservation and 

management of the fishery.26

That provision allows the agency to require that fishermen give 

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

let the monitor “be carried.” 

The Fisheries Service argues that such authority implicitly 

includes the authority to make the fishermen pay the monitors’ 

wages because the wages are simply an incidental cost of 

complying with the duty to allow monitors onboard. In the 

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

statutorily-required fishing gear.

But that analogy doesn’t hold up.

First, the Act’s language meaningfully differs in its 

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

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

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

perhaps the Fisheries Service could argue that the cost of 

procuring the monitor was incidental to that command. But

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

observers. It only allows them to require that fishermen let 

observers “be carried on board.” 

A cost incidental to carrying an observer might include the 

additional fuel costs of a marginally heavier boat or the 

opportunity cost of giving to the monitor a bunk that would 

otherwise be occupied by a working fisherman. Those are 

costs that necessarily follow when a fisherman lets a monitor 

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

26 16 U.S.C. § 1853(b)(8) (emphasis added).
9

connection between paying a monitor’s wage and providing 

him passage.

Second, inspection requirements and gear requirements 

are different classes of impositions on regulated parties, and 

they carry different expectations.27 Regulatory mandates, such 

as gear requirements, often carry compliance costs. But the 

Fisheries Service has identified no other context in which an 

agency, without express direction from Congress, requires an 

industry to fund its inspection regime. 

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

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

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

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

Congress didn’t say it.

28

B

The Fisheries Service next asks us to find its authority in 

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

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

shall contain the conservation and management

measures, applicable to foreign fishing and fishing by 

vessels of the United States, which are necessary 

27 Those expectations, of course, inform our interpretation of how 

“ordinary people understand the rules that govern them.” NizChavez v. Garland, 141 S. Ct. 1474, 1485 (2021).

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

matter how desirous of protecting their policy judgments, agency 

officials cannot invest themselves with power that Congress has not 

conferred.” (citations omitted)).

29 16 U.S.C. § 1853(a)(1)(A), (b)(14).
10

and appropriate for the conservation and

management of the fishery, to prevent overfishing and 

rebuild overfished stocks, and to protect, restore, and 

promote the long-term health and stability of the 

fishery.30

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

fishery management plans:

may prescribe such other measures, requirements, 

or conditions and restrictions as are determined to 

be necessary and appropriate for the conservation 

and management of the fishery.31

The Fisheries Service argues that because the monitors’

data collection is important and because the Fisheries Service 

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

fishermen fund it.

For three reasons, I disagree.

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

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

management plans must, for example, describe the fishery, 

specify a reporting methodology, and identify essential fish 

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

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

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

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

measures surrounding the “necessary and appropriate” 

30 Id. § 1853(a)(1)(A) (emphases added).

31 Id. § 1853(b)(14) (emphases added).

32 Id. § 1853(a)(2), (a)(11), (a)(7).

33 Id. § 1853(b)(2)(B), (b)(3)(A), (b)(9).
11

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

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

And none of the measures in those sections look anything like 

the funding scheme that the Fisheries Service contemplates 

here.

Second, the logic of the Fisheries Service’s argument 

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

fishermen to drive regulators to their government offices if gas 

gets too expensive? Having the agency officials at work may 

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

that Congress meant to allow for free fisherman chauffeurs. 

Or what if Congress were to entirely defund the 

compliance components of the Fisheries Service — could the 

agency continue to operate by requiring the industry to fund a 

legion of independent contractors to replace the federal 

employees? That generous interpretation of “necessary and 

34 Alabama Association of Realtors v. Department of Health & 

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

State Department of Social & Health Services v. Guardianship 

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

interpretative canons of noscitur a sociis and ejusdem generis, where 

general words follow specific words in a statutory enumeration, the 

general words are construed to embrace only objects similar in nature 

to those objects enumerated by the preceding specific words” 

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

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

agency interpretation within the Chevron framework).

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

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

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

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

authority claimed”).
12

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

So although the words “necessary and appropriate” may be 

broad, they cannot be as limitless as the Fisheries Service 

suggests.37 

Third, if Congress had wanted to allow industry funding 

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

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

certain other contexts.38 The existence of specific provisions

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

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

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

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

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

horse slaughter by defunding the requisite ante-mortem 

inspections.).

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

hard to see what measures this interpretation would place outside the 

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

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

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

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

untrammeled freedom to regulate activities over which the statute 

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

up)).

38 16 U.S.C. § 1862(a) (North Pacific fishery), § 1821(h)(4) (foreign 

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

limited access privilege program is one in which an entity is 

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

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

limited access privilege programs does not itself mention observers, 

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

limited access privilege program shall “include an effective system 

for enforcement, monitoring, and management of the program, 

including the use of observers,” and subsection (e) instructs that 
13

for industry funding elsewhere — for only certain North 

Pacific fisheries, foreign fishing, and limited access privilege 

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

catchall “necessary and appropriate” prerogative to implicitly

authorize industry funding in the Atlantic herring fishery.

39

Take for example the provision governing the North 

Pacific fisheries. The statute says that the relevant council 

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

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

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

That provision and the “necessary and appropriate”

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

that, when Congress decided to explicitly allow industryfunding for observers in one way (fees) in one place (the North 

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

observers in any other way they choose.

42

 The plainer reading 

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

of management, data collection and analysis, and enforcement 

activities.”

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

that where Congress includes particular language in one section of a 

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

presumed that Congress acts intentionally and purposely in the 

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

40 16 U.S.C. § 1862(a).

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

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

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

§ 1862). 

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

(“negative implications raised by disparate provisions are strongest 

where the provisions were considered simultaneously” (cleaned up)).
14

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

was limited to what it expressly authorized.

43

In its briefing, the Fisheries Service tried to explain away 

the existence of this specific industry-funding provision by 

arguing that Congress merely wanted to “mandate” a certain 

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

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

discretionary, not mandatory.45 

The Fisheries Service also tries to draw a distinction 

between (1) making fishermen pay for monitors through a 

“fee” program like the program used in the North 

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

government then uses that money to pay the monitors’ 

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

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

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

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

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

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

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

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

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

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

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

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

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

45 16 U.S.C. § 1862(a)(2) (“The North Pacific council may . . . 

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

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

implementing the plan.” (emphasis added)).

46 The Fisheries Service is not eager to highlight that the North 

Pacific and limited-access schemes are not at all analogous to the 
15

But if the Fisheries Service is correct that the two schemes 

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

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

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

an authority either implied or provided by the catch-all 

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

the two schemes are analogous, that suggests that Congress 

made a deliberate choice when it expressly approved

fishermen-funded monitoring only for the North Pacific, 

foreign fishing, and limited access privilege programs — and 

not here.

47

 

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

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

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

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

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

the required payments to at-sea monitors could reduce the 

fishermen’s financial returns by twenty percent.

47 To the extent there is a meaningful difference between paying fees 

to the government and paying observers directly, the MagnusonStevens Act already, explicitly, contemplates both. The Act creates

more traditional fee programs in the North Pacific, limited access 

privilege programs, and foreign fishing generally. But when the 

Fisheries Service has “insufficient appropriations” to provide full 

observer coverage for foreign fishing, the Act calls for the 

implementation of a supplementary observer program under which 

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

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

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

possibility that appropriations are sometimes insufficient to cover 

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

schemes to resolve that dilemma. And the Fisheries Service itself 

acknowledges both of those points in a document currently posted on 

its website regarding limited access privilege programs. United 

States Department of Commerce, National Oceanic and Atmospheric 
16

* * *

Fishing is a hard way to earn a living.

48

 And Congress can 

make profitable fishing even harder by forcing fishermen to 

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

embedded by regulation onto their ships. 

But until Congress does that, the Fisheries Service cannot.

I respectfully dissent.

Administration & National Marine Fisheries Service, The Design 

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

& Mark C. Holliday eds., 2007), 

https://www.fisheries.noaa.gov/resource/document/design-and-uselimited-access-privilege-programs (last updated June 13, 2019) (“In 

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

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

took this into consideration by mandating a cost recovery program 

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

LAP program will have to come from the current 

appropriations. This means that there will have to be cuts 

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

of implementation and operation do not exceed the appropriated and 

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

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

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

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

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

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

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

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

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

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

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

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

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