December 14, 1979

79-86 MEMORANDUM OPINION FOR THE

GENERAL COUNSEL, NATIONAL OCEANIC

AND ATMOSPHERIC ADMINISTRATION,

DEPARTMENT OF COMMERCE

Fishery Conservation and Management Act (16

U.S.C. § 1801 et seq.)—Boundaries between

Adjoining Regional Fishery Management Councils

This responds to your request for our opinion whether the Secretary of 

Commerce is required by the Fishery Conservation and Management Act 

of 1976 (Act), 90 Stat. 331, 16 U.S.C.A. § 1801 et seq. (1979 Supp.) to 

establish boundaries between adjoining regional fishery management 

councils on a geographical basis rather than on the basis of considerations 

other than geography.1

There are eight regional fishery councils, each covering certain 

designated States and having jurisdiction over fisheries in areas seaward of 

those States. The question of boundaries is most controversial—and has 

arisen in this case—in the context of those adjoining fishery councils that 

include the same State, in this instance Florida. In such a situation, one 

cannot begin with an established State boundary and derive a “ seaward” 

line from it. Theoretically, the Secretary could establish a boundary between two adjoining councils at any point along the Florida coastline, even 

though it does not rest only on a geographical standard, as long as it does 

conform to a rational division between fisheries in areas seaward of the 

shore. The question you have asked is essentially whether such discretion 

has been delegated, or whether it is barred, by the Act.

For the reasons discussed below, we conclude that discretion is barred. 

The Act contemplates that boundaries between adjoining regional fishery 

management councils are to be established solely on the basis of geographical factors.

'The second question raised by you concerning the litigation authority o f regional fishery 

councils will be addressed in a separate, forthcoming memorandum.

All references in this m emorandum to title 16 o f the United States Code Annotated are to 

the 1979 Supplement.

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I. Background

The issue presented derives from a long-standing controversy between 

the South Atlantic Fishery Management Council (SAFMC) and the Gulf 

of Mexico Fishery Management Council (GMFMC). The SAFMC consists 

of the States of North Carolina, South Carolina, Georgia, and Florida, 

and it “ shall have authority over the fisheries in the Atlantic Ocean seaward of such States.” § 302(a)(3) of the Act, 16 U.S.C.A. § 1852(a)(3). 

The GMFMC consists of the States of Texas, Louisiana, Mississippi, 

Alabama, and Florida, and it “ shall have authority over the fisheries in 

the Gulf of Mexico seaward of such States.” § 302(a)(5) of the Act, 16 

U.S.C.A. § 1852(a)(5).

In 1977, the National Oceanic and Atmospheric Administration 

(NOAA) published interim regulations, see 42 F.R. 36980, proposing that 

the boundary between the two Councils be located at the point of intersection of Dade County and Monroe County in Florida, and seaward of that 

point. That boundary was not based on geographical factors.2 It is 

located, we are told, some 200 miles north of the southernmost part of the 

Florida Keys. Accordingly, it would give the GMFMC jurisdiction over 

the water areas seaward of the Florida Keys, and would confine the 

jurisdiction of the SAFMC to an area north of a line running seaward of 

the Dade County-Monroe County border. The SAFMC has objected to 

this boundary on the ground that it gives the GMFMC jurisdiction over 

part of the Atlantic Ocean.

For an extended period of time, negotiations were carried on between 

the councils, and between them and the regional and national authorities 

of NOAA. Memoranda of law were submitted by both sides to NOAA. In 

a decision published on April 20, 1979, NOAA reaffirmed the earlier 

boundary ruling. See 44 F.R. 23528-29.

The legal reasoning underlying NOAA’s determination rests significantly on § 304(f)(2) of the Act, 16 U.S.C.A. § 1854(0(2). It identifies as 

one of the Secretary’s miscellaneous duties that he “ shall establish the 

boundaries between the geographical areas of authority of adjacent Councils.” Although NOAA notes that this grant of authority was added to the 

original bill without explanation, it maintains that, on its face, the statute 

delegates to the Secretary a broad discretion to establish boundaries between adjacent councils. Moreover, it urges that if § 302(a) of the Act 

(which stipulates that the SAFMC and the GMFMC shall have authority 

over fisheries in the Atlantic Ocean and the Gulf of Mexico, respectively) 

is read to limit the Secretary’s discretion to the identification of a 

geographical line between the Atlantic and the Gulf, then, in effect,

Mn the interim regulations, 50 CFR § 601.12(c)(2) (1978), the explanation is as follows: 

The boundary between the South Atlantic and Gulf o f Mexico Councils continues the 

agreed county boundary between Dade and Monroe Counties to minimize potential difficulties for fishermen, the affected councils, and outward bordering countries.

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§ 302(a) would contradict § 304(f)(2)’s grant of broad discretion to the 

Secretary. To avoid such inconsistency, NOAA argues, it is necessary to 

read § 302(a) in an expansive manner3 so as to permit the establishment of 

boundaries on the basis of several factors including, but not confined to, 

geographical considerations.

Apart from statutory language, NOAA believes that a broad reading is 

necessitated by the underlying purpose of § 304(0(2) to promote the conservation and management of fisheries. Because fish do not respect geographical boundaries established by cartographers and geographers, 

NOAA reasons, it would not be consistent with the statute’s aim to insist 

that boundaries between adjoining councils must have only a geographical foundation.4 Furthermore, NOAA argues that a strictly geographical 

reading of the statutory provision dealing with the council’s boundaries is 

inconsistent with the intent of Congress indicated in passages in the 

legislative history dealing with the membership of certain western States 

on regional councils. In particular, NOAA relies on indications in the 

legislative history that certain States were included on more than one 

council because, apart from purely geographical considerations, their residents have interests in the management of the area’s fisheries.

II. Discussion

We start our analysis with the statutory language. The Act announces 

that the SAFMC “ shall have authority over the fisheries in the Atlantic 

Ocean seaward” of its constituent States, including Florida, and that the 

GMFMC “ shall have authority over the fisheries in the Gulf of Mexico 

seaward” of its constituent States, also including Florida. §§ 302(a)(3),

(5), 16 U.S.C.A. § 1852(a)(3), (5).

These provisions distinguish the areas of jurisdiction of the SAFMC and 

GMFMC with reference to two different water areas—the Atlantic Ocean 

and the Gulf of Mexico. This is clarified by comparing the SAFMC’s jurisdiction, which has authority over “ the fisheries in the Atlantic Ocean seaward” of its States, with that of the Mid-Atlantic Fishery Management 

Council, which has authority over “ the fisheries in the Atlantic Ocean seaward of such States.” The characteristic distinguishing the jurisdictions of 

the SAFMC and the Mid-Atlantic Fishery Management Council is the fact 

that their members are representatives of different States; both have 

jurisdiction over different parts of the same ocean. In contrast, the distinguishing characteristic between the jurisdiction of the SAFMC and that of

’In a supporting m emorandum o f law, NOAA describes its broad reading of § 302(a) as a 

“ functional” approach, as opposed to what it calls the SAFM C’s “ literal” interpretation.

‘This argument is said to be strengthened by the A ct’s definition of a fishery; it speaks of 

stocks o f fish identified “ on the basis o f geographical, scientific, technical, recreational, and 

economic characteristics * * * .” 16 U .S.C .A . § 1802(7)(A). Because the definition is not 

confined to geographical factors, it is said to buttress the view that the A ct’s drafters were 

not attempting to limit the Secretary’s discretion in establishing boundaries between adjoining councils to the consideration o f geographical matters.

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the GMFMC is that the former has authority over fisheries in the Atlantic 

Ocean, as distinct from the Gulf of Mexico. This suggests that Congress 

intended that the boundary identification between the latter two councils 

should ultimately rest on this geographical criterion.

That interpretation is strengthened by § 302(a)’s last sentence. It provides that “ [e]ach Council shall reflect the expertise and interest of the 

several constituent States in the ocean area over which such Council is 

granted authority.” [Emphasis added.] This pronouncement reaffirms the 

straightforward reading of the statute to the effect that Congress intended 

the councils’ jurisdictions to be defined geographically in terms of ocean 

areas, not in terms of nongeographical factors. We next will discuss 

whether this reading is consistent with (1) other provisions of the Act,

(2) its underlying purposes, and (3) its legislative history.

A. Consistency with Other Provisions of the Act

We find no inconsistency between, on the one hand, saying that § 302(a) 

limits the Secretary’s authority in establishing boundaries by positing certain geographical criteria as guideposts and, on the other hand, saying that 

§ 304(f)(2) grants the Secretary authority to establish the boundaries. One 

provision simply limits the authority granted by the other provision. Pursuant to § 304(0(2), the Secretary would still have a significant function to 

perform, namely, identifying with precision the boundaries between adjoining councils.

This interpretation is borne out by § 304(0(2), which does not purport 

to grant the Secretary unlimited discretion in establishing boundaries, but 

rather provides that the Secretary “ * * * shall establish the boundaries 

between the geographical areas o f authority of adjacent Councils.” [Emphasis added.] The use of the modifier “ geographical” reaffirms the view 

that geographical considerations define the council’s areas of authority.’

Moreover, the contrary view appears to be inconsistent with other provisions of the Act. As we have noted, the major feature distinguishing the 

areas of authority of two councils such as, for example, the Mid-Atlantic 

and the South Atlantic Councils, is geographical—namely, the boundary 

between different States on each council. Absent an affirmative basis for 

doing so, which does not appear in the statute, it would be anomalous to 

distinguish the areas of authority of some councils, but not of others, on 

geographical grounds.

’It may be suggested that the use of the word “ geographical” in the phrase “ geographical 

areas o f authority” does not mean that the areas of authority are to be based on geographical 

considerations but rather, once established, that they have a geographical dimension. No 

other dimension is identified in the cited statutory language. In conjunction with the 

language of § 302(a) and the legislative history, this indicates that Congress intended to 

ground the councils’ areas of authority on geographical factors alone.

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B. Consistency with the Act’s Purposes

The vindication of the Act’s aim—the conservation and management of 

fishery resources off the coasts of the United States, see 16 U.S.C. 

§§ 1801 (b)( 1 )-(6)—would not be undermined by a decision that the 

Secretary is bound to establish boundaries between adjoining councils on a 

geographical basis. We believe that the statute provides sufficient flexibility for particularized treatment of fisheries that overlap the boundaries of 

adjoining councils.

When a fishery extends on both sides of a boundary, the Secretary is 

empowered to direct either one of the adjoining councils to prepare the 

management plan for the fishery. Alternatively, the councils could be 

directed to prepare jointly a plan to be approved by a majority of each 

council. See § 304(0(1), 16 U.S.C.A. § 1854(0(1). The fact that a 

geographically defined boundary divides two adjoining councils would not 

prevent effective management of a fishery the location of which does not 

conform to the boundary.6

C. Consistency with the Legislative History

The scant legislative history on the issue confirms the interpretation we 

have sketched. The forerunner of the crucial language of what became 

§ 302(a) first appeared in the bill reported by the Senate Committee on 

Commerce,1 which stated in its report that national standards for fishery 

management and conservation:

* * * are to be applied by * * * newly-created Regional 

Fishery Management Councils (one fo r each major ocean area)

in the development of management plans for each fishery determined to be in need of management and conservation * * * .* 

[Emphasis added.]

The language in italics reaffirms that regional councils are to be 

distinguished geographically on the basis of different ocean areas, not on 

the basis of nongeographical factors.

Nor is this view weakened by passages in the legislative history indicating 

that certain western States should be represented on more than one council 

because, apart from solely geographical factors, their residents have an

•We do not consider the Act’s definition or a “ fishery” to support the view that boundaries between adjoining councils should be defined in terms o f all the factors that define a 

fishery. A fishery and an area o f authority of fishery councils are analytically distinct. The 

former may be quite broadly defined while the latter may be more precisely defined. The key 

statutory provisions o f concern here relate to the councils’ areas o f authority, not the definition of a fishery.

’S. Rept. 416, 94th Cong., 1st sess. 52 (1975).

'Id. at 3.

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interest in the management of the area’s fisheries.’ Such passages show 

only that Congress relied on more than strictly geographical justifications 

for including representatives of a single State on more than one council. 

Once a council’s membership is settled, the boundaries between adjoining 

councils are to be based on geographical grounds. Council membership 

and its boundary are simply two different subjects.

We are constrained to conclude that the Act requires boundaries between adjoining regional fishery management councils to be based on 

geographical factors alone.10

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

’For example, the report o f the House Committee on Merchant Marine and Fisheries noted 

that California and Oregon were to be represented on both the Pacific and Alaska Councils 

(as they were called in the House bill) “ because of the migratory habits and movements of 

anadromous species, many o f which spawn in their waters and migrate to areas o ff the coast 

o f Alaska, and because o f the participation o f their fishermen in this fishery off the coasts of 

Alaska * * * H. Rept. 445, 94th Cong., 1st sess. 62 (1975). Similarly, the Senate Com ­

merce Committee report called for the inclusion o f Washington on both the Pacific and 

North Pacific Councils (as the Senate bill termed them):

The Pacific Council would be concerned with the fisheries in the Pacific Ocean, seaward 

o f California, Oregon, and Washington * * * . The North Pacific Fishery Council 

would be concerned with the fisheries in the northern Pacific Ocean off the State of 

Alaska. For the most part, fishermen in this area reside in Alaska, however, a fairly 

large number o f residents from the State o f Washington also fish in this area. [S. Rept. 

416, 94th Cong., 1st sess. 32 (1975).)

'“We do not address the question where, in particular, the geographical line between the 

Atlantic Ocean and the G ulf o f Mexico should be located in the absence o f the views of your 

agency.

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