Loper Bright Enterprises, Inc v. Gina Raimondo

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2022 Decided August 12, 2022

No. 21-5166

LOPER BRIGHT ENTERPRISES, INC., ET AL.,
APPELLANTS

CAPE TRAWLERS, INC., ET AL.,
APPELLEES

v.

GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS SECRETARY
OF COMMERCE, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00466)

Eric R. Bolinder argued the cause for appellants. With him
on the briefs was Ryan P. Mulvey.

Daniel Halainen, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Todd Kim, Assistant Attorney General, and Rachel Heron,
Attorney.
 2
Before: SRINIVASAN*, Chief Judge, ROGERS and WALKER,
Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Dissenting opinion by Circuit Judge WALKER.

ROGERS, Circuit Judge: In implementing an Omnibus
Amendment that establishes industry-funded monitoring
programs in New England fishery management plans, the
National Marine Fisheries Service promulgated a rule that
required industry to fund at-sea monitoring programs. A group
of commercial herring fishing companies contend that the
statute does not specify that industry may be required to bear
such costs and that the process by which the Service approved
the Omnibus Amendment and promulgated the Final Rule was
improper. We affirm the district court’s grant of summary
judgment to the Service based on its reasonable interpretation
of its authority and its adoption of the Amendment and the Rule
through a process that afforded the requisite notice and
opportunity to comment.

I.

The Magnuson-Stevens Fishery Conservation and
Management Act of 1976 (the “Act”), 16 U.S.C. §§ 1801–
1884, in furtherance of its goal “to conserve and manage the
fishery resources . . . of the United States,” 16 U.S.C.
§ 1801(b)(1), authorizes the Secretary of Commerce, and the
National Marine Fisheries Service (“the Service”) as the
Secretary’s delegee, to implement a comprehensive fishery
management program, id. § 1801(a)(6); see id. §§ 1854,

*
Chief Judge Srinivasan was drawn to replace Judge Jackson,
now Justice Jackson, who heard argument and did not participate in
this opinion.
 3
1855(d). Key to the statutory scheme is the promulgation and
enforcement of “fishery management plans.” Plans and
periodic amendments are developed by regional fishery
management councils, id. § 1852(h)(1), and include measures
“necessary and appropriate for the conservation and
management of the fishery,” id. § 1853(a)(1)(A). The proposing
council may include specific conservation and management
measures enumerated in 16 U.S.C. § 1853(b), as well as any
other measures “determined to be necessary and appropriate,”
id. § 1853(b)(14). In addition, the council may propose
implementing regulations. Id. § 1853(c).

Nine fisheries, including the Atlantic herring fishery, are
managed by the New England Fishery Management Council
(the “Council”). Id. § 1852(a)(1)(A), (h)(1). The Council
submitted the Omnibus Amendment to the Service, which
published a notice of availability and subsequently opened a
comment period. Notice of Availability, 83 Fed. Reg. 47,326
(Sept. 19, 2018); Notice of Proposed Rulemaking (“NPRM”),
83 Fed. Reg. 55,665 (Nov. 7, 2018). The Service approved the
Omnibus Amendment on December 18, 2018, and published
the Final Rule on February 7, 2020.1 The Amendment and the
Rule set out a standardized process to implement and revise
industry-funded monitoring programs in the New England
fisheries. Omnibus Amendment at v; Final Rule, 85 Fed. Reg.
at 7,414–17. Plan coverage requirements may be waived if
monitoring is unavailable or certain exemptions based on use
of monitoring equipment or catch size apply. See Final Rule,
85 Fed. Reg. at 7,417, 7,419–20.

1
Industry-Funded Monitoring: An Omnibus Amendment to the
Fishery Management Plans of the New England Fishery Management
Council (2018) (“Omnibus Amendment”); Magnuson-Stevens
Fishery Conservation and Management Act Provisions; Fisheries of
the Northeastern United States; Industry-Funded Monitoring Final
Rule, 85 Fed. Reg. 7,414 (Feb. 7, 2020) (“Final Rule”).
 4
The monitoring program for the Atlantic herring fishery
covers 50 percent of herring trips. The 50-percent coverage
target is met through a combination of limited Service-funded
monitoring pursuant to the fishery management plan, see 16
U.S.C. § 1853(a)(11), and, for the difference between the target
and Service-funded monitoring, industry-funded monitoring,
with owners of vessels selected by the Service to carry an
industry-funded monitor and pay the associated costs (other
than administrative costs). Final Rule, 85 Fed. Reg. at 7,417.
The Service estimated industry costs to the herring fishery “at
$710 per day,” which in the aggregate could reduce annual
returns by “approximately 20 percent.” Id. at 7,418.

Appellants are commercial fishermen who regularly
participate in the Atlantic herring fishery. They filed a lawsuit
alleging, as relevant, that the Act did not authorize the Service
to create industry-funded monitoring requirements and that the
rulemaking process was procedurally irregular. The district
court ruled on the parties’ cross-motions for summary
judgment in the government’s favor. Loper Bright Enters., Inc.
v. Raimondo, 544 F. Supp. 3d 82, 127 (D.D.C. 2021).

II.

On appeal, appellants’ challenge to the Final Rule presents
the question how clearly Congress must state an agency’s
authority to adopt a course of action. This court is aware of the
Supreme Court precedent that Congress must clearly indicate
its intention to delegate authority to take action that will have
major and far-reaching economic consequences. Util. Air Regul.
Grp. v. EPA, 573 U.S. 302, 323–24 (2014). But that “major
questions doctrine” applies only in those “‘extraordinary cases’
in which the ‘history and breadth of the authority that [the
agency] has asserted,’ and the ‘economic and political
significance’ of that assertion, provide a ‘reason to hesitate
 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 industry-
contracted and funded observers beyond the foreign-vessel
 11
context. If Congress had intended for penalties associated with
industry-funded monitoring to apply only in the foreign fishing
context, the court would expect that Congress in the penalty
provisions would have specifically referenced foreign vessels
or included a cross-reference to the foreign fishing provision.

Finally, appellants claim that, given the substantial costs
of industry-funded monitoring to herring fishing companies,
“Congress would not have delegated ‘a decision of such
economic and political significance to an agency in so cryptic
a fashion’” as reliance on “necessary and appropriate”
authority. Appellants’ Br. 41 (quoting Brown & Williamson
Tobacco Corp., 529 U.S. at 160). Indeed, an agency may not
rely on a “necessary and appropriate” clause to claim implicitly
delegated authority beyond its regulatory lane or inconsistent
with statutory limitations or directives. See, e.g., Ala. Ass’n of
Realtors v. HHS, 141 S. Ct. 2485, 2487–88 (2021); Michigan,
135 S. Ct. at 2707–08; N.Y. Stock Exch., 962 F.3d at 554–55.
The Service does not do so here because its interpretation falls
within the boundaries set by the Act. Section 1853(b)(8)
expressly envisions that monitoring programs will be created
and, through its silence, leaves room for agency discretion as
to the design of such programs. In addition, at-sea monitoring
relates to the Service’s interest in fishery management and the
Act contains no bar on industry-funded monitoring programs,
instead permitting plans to “prescribe such other measures,
requirements, or conditions and restrictions” as are “necessary
and appropriate for the conservation and management of the
fishery,” id. § 1853(b)(14); see id. § 1853(a)(1)(A). The
Service’s understanding of Section 1853(b)(8) and the
“necessary and appropriate” clauses as encompassing industry-
funded monitoring thus does not exceed statutory limits.

Nonetheless, the text does not compel the Service’s
interpretation of the Act as granting authority by omission to
 12
require industry-funded monitoring. Courts “construe [a
statute’s] silence as exactly that: silence.” EEOC v. Abercrombie
& Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015). Neither
Section 1853(b)(8) nor any other provision of the Act explicitly
allows the Service to pass on to industry the costs of monitoring
requirements included in fishery management plans. Nor do
the traditional tools of statutory interpretation provide another
basis on which to conclude that the Act unambiguously
supports the Service’s interpretation. Congress has thus
provided no wholly unambiguous answer at Chevron Step One
as to whether the Service may require industry-funded
monitoring in the Omnibus Amendment and Final Rule.
Although an agency’s interpretation need not be compelled by
the text for it to prevail at Step One, here, where there may be
some question as to Congress’s intent, particularly in view of
appellants’ cost objection, it behooves the court to proceed to
Step Two of the Chevron analysis.

Pursuant to Step Two, an agency’s interpretation can
prevail if it is a “reasonable resolution of an ambiguity in a
statute that the agency administers,” Michigan, 135 S. Ct. at
2707, and “the agency has offered a reasoned explanation for
why it chose that interpretation,” Cigar Ass’n of Am., 5 F.4th
at 77 (internal quotation marks omitted). Under this deferential
standard, the Service’s interpretation of the Act as authorizing
additional industry-funded monitoring programs is reasonable.
Section 1853(b)(8), paired with the Act’s “necessary and
appropriate” clauses, demonstrates that the Act considers
monitoring “necessary and appropriate” to further the Act’s
conservation and management goals. That conclusion provides
a reasonable basis for the Service to infer that the practical steps
to implement a monitoring program, including the choice of
funding mechanism and cost-shifting determinations, are
likewise “necessary and appropriate” to implementation of the
Act. See Final Rule, 85 Fed. Reg. at 7,422–23.
 13
In addition, the Final Rule provides a reasoned explanation
for the Service’s interpretation. The Rule noted that Section
1853(b)(8) authorizes the Service to require at-sea monitors
“for the purpose of collecting data necessary for the
conservation and management of the fishery. Id. at 7,422
(quoting 16 U.S.C. § 1853(b)(8)). It further explained that
industry-funded monitoring to reach the new 50-percent
coverage target would best serve the Act’s conservation and
management goals. In particular, increased monitoring would
permit the Service “to assess the amount and type of catch, to
more accurately monitor annual catch limits, and/or provide
other information for management.” Id. at 7,423. The Rule
also stated that industry-funded monitoring was consistent with
other provisions of the Act that impose compliance costs on
industry. Id. at 7,422. This explanation reasonably tied the
industry-funded monitoring requirement to the Act’s purposes.
The Service’s interpretation of the Act is therefore owed
deference at Chevron Step Two.

Our dissenting colleague agrees that the Chevron
framework governs this case but disagrees about how it applies,
asserting that the court should reach Chevron Step Two only if
“the statute is ambiguous” and “Congress either explicitly or
implicitly delegated authority to cure that ambiguity.” Dis. Op.
at 5 (internal quotation marks omitted); see id. at 5 n.16. The
dissent suggests that “Congress’s silence on a given issue . . .
[generally] indicates a lack of authority,” id. at 6, but Chevron
instructs that judicial deference is appropriate “if the statute is
silent or ambiguous with respect to the specific issue,” 467
U.S. at 843 (emphasis added). The Supreme Court has
affirmed its Chevron analysis, see, e.g., City of Arlington v.
FCC, 569 U.S. 290, 296 (2013), and this court has
reacknowledged its binding force, see, e.g., Sierra Club v. EPA,
21 F.4th 815, 818–19 (D.C. Cir. 2021). The dissent’s reference
to recent cases in which the Supreme Court has not applied the
 14
framework, see Dis. Op. at 5 & n.6, does not affect the
obligation of this court to “leav[e] to [the Supreme] Court the
prerogative of overruling its own decisions,” Agri Processor
Co. v. NLRB, 514 F.3d 1, 8 (D.C. Cir. 2008) (second alteration
in original) (quoting Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989)).

Not every statutory silence functions as an implicit
delegation. See U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566
(D.C. Cir. 2004). But Section 1853(b)(8)’s silence on the issue
of cost of at-sea monitoring provides no basis for applying
different standards of review here. Dis. Op. at 8–9. Under
Chevron, such silence in the context of a comprehensive
statutory fishery management program for the Service to
implement, 16 U.S.C. §§ 1801(a)(6), 1854, 1855(d), is a lawful
delegation, Chevron, 467 U.S. at 842–44. Furthermore, the
Supreme Court has instructed that a broad “necessary and
appropriate” provision, as appears in the Act, “leaves agencies
with flexibility” to act in furtherance of statutory goals,
Michigan, 135 S. Ct. at 2707, and here the Service pointed to
the Act’s conservation and management goals. Speculation
that the Service’s interpretation of its authority may lead to
exorbitant regulatory costs to industry, see Dis. Op. at 11,
overlooks Chevron Step Two’s reasonableness limitation. Nor,
in these circumstances, is Congress’s provision for industry-
funded monitoring in three unique situations properly
understood to eliminate the Service’s authority to create
industry-funded monitoring programs in any other situation,
see id. at 12–14. Under the well-established Chevron Step Two
framework, the Service’s interpretation of the Act to allow
industry-funded monitoring was reasonable.
 15
B.

Appellants’ alternative challenge emphasizes that this
court reviews the grant of summary judgment de novo and the
Omnibus Amendment and Final Rule were enacted and
adopted pursuant to the Administrative Procedure Act
(“APA”). Under the APA’s deferential standard, the court
upholds agency action unless it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A); see Cigar Ass’n of Am, 5 F.4th at 74.
“An agency is owed no deference,” however, “if it has no
delegated authority from Congress to act.” N.Y. Stock Exch.,
962 F.3d at 553. The court “determines whether the resulting
regulation exceeds the agency’s statutory authority” before it
determines whether the regulation “is arbitrary or capricious,”
id. at 546 (citing Sullivan v. Zebley, 493 U.S. 521, 528 (1990)),
as is addressed in subsection A.

Appellants urge that the Omnibus Amendment and Final
Rule are arbitrary and capricious, even if statutorily authorized,
“because they do not adequately account for the economic
cost” of industry-funded monitoring for participants in the
Atlantic herring fishery. Appellants’ Br. 55. To survive
arbitrary and capricious review, an agency “may not ‘entirely
fai[l] to consider an important aspect of the problem’ when
deciding whether regulation is appropriate.” Michigan, 135 S.
Ct. at 2707 (alteration in original) (quoting Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983)). Cost is such a factor in view of the Act’s
directive that fishery management plans minimize adverse
effects and costs to the fishing community wherever possible.
See 16 U.S.C. § 1851(a)(7), (8).

The record shows the Service took note of evidence that
the Atlantic herring industry-funded monitoring program costs
 16
impacted vessels $710 per day and could reduce annual returns
by approximately 20 percent. Final Rule, 85 Fed. Reg. at
7,418. It evaluated the economic impacts of the program in
detail, see id. at 7,417–22, 7,428–29, responded to comments
raising cost-related concerns, see id. at 7,424–26, and described
its efforts to minimize economic impacts on herring fishery
participants, see id. at 7,429–30. For example, vessel owners
may request waivers of industry-funded monitoring coverage
on trips intending to land less than 50 metric tons of herring,
and midwater trawl vessels may comply with the requirement
through electronic monitoring instead of retaining a private
monitor. Id. at 7,430. Further, in the Rule, the Service
explained its choice of a 50-percent coverage target as
“balanc[ing] the benefit of additional monitoring with the costs
associated with additional monitoring,” id. at 7,425, and
adopted exemptions designed to address adverse effects on
smaller vessels, see id. at 7,419–20, 7,425, 7,430. So, the
Service’s decision to proceed with an industry-funded
monitoring requirement after extensive deliberations on the
question of cost was not arbitrary or capricious.

C.

Finally, appellants contend that promulgation of the
Omnibus Amendment and the Final Rule was procedurally
improper. Specifically, appellants challenge the Service’s
failure to comply with the Act’s timeline for review of the
Amendment, see 16 U.S.C. §§ 1853, 1854, and its use of
overlapping comment periods for the Amendment and the
Rule. Neither contention is persuasive.

That the Service did not follow the Act’s timeline provides
no basis for relief here. The Service published the notice of
availability for the Omnibus Amendment three days after the
statutory deadline, see 16 U.S.C. § 1854(a)(1)(A)–(B), (5), and
 17
adopted the Final Rule more than a year after its comment
period ended, see Final Rule, 85 Fed. Reg. at 7,414, contrary to
the requirement that implementing regulations be promulgated
within thirty days of the close of their comment period, see 16
U.S.C. § 1854(b)(3). Procedural errors that are “technical” in
nature and “therefore harmless” are “not grounds for vacating
or remanding.” Int’l Bhd. of Teamsters v. U.S. Dep’t of
Transp., 724 F.3d 206, 217 (D.C. Cir. 2013); see Nevada v.
Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir. 2006). Appellants
do not identify any harm or prejudice resulting from the alleged
delay. In addition, “if a statute does not specify a consequence
for noncompliance with statutory timing provisions, the federal
courts will not in the ordinary course impose their own coercive
sanction.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 159
(2003) (internal quotation marks omitted); see Transp. Div. of
Int’l Ass’n of Sheet Metal, Air, Rail & Transp. Workers v. Fed.
R.R. Admin., 10 F.4th 869, 873–74 (D.C. Cir. 2021). The Act
does not penalize missed deadlines, and appellants do not point
to any basis for this court sua sponte to vacate the Final Rule.

Appellants’ suggestion that the Service “prejudged the
legality” of the Omnibus Amendment through its use of
overlapping comment periods with the Final Rule fares no
better. The Act requires that notice and comment on a plan
amendment and its accompanying regulations occur in tandem.
See 16 U.S.C. §§ 1853(c)(1), 1854(a)(1), (5), 1854(b)(1)(A).
Even if the statutory text did not control, the Service may
initiate implementing regulations of its own accord, subject to
APA notice-and-comment requirements that it “publish [a]
notice of proposed rulemaking in the Federal Register and . . .
accept and consider public comments on its proposal.”
Mendoza v. Perez, 754 F.3d 1002, 1020 (D.C. Cir. 2014)
(citing 5 U.S.C. § 553). Here, the Service set comment periods
of sixty and forty-five days, respectively, for the Omnibus
Amendment and the Final Rule and stated that it would
 18
consider comments received on either document in its decision
to approve the Amendment. NPRM, 83 Fed. Reg. at 55,667.
The Act does not require publication of approval of plan
amendments. See 16 U.S.C. § 1854(a)(3). So, the Service
could address public comments on the Omnibus Amendment
upon promulgation of the Final Rule, see 85 Fed. Reg. at 7,422–
27. In view of Congress’s expectation that the Service would
consider comments on plan amendments and implementing
regulations at the same time, see 16 U.S.C. §§ 1853(c)(1),
1854(a)(1), (5), 1854(b)(1)(A), appellants fail to show a lack of
fair notice and a meaningful opportunity to comment as the
APA requires. See, e.g., Conn. Light & Power Co. v. Nuclear
Regul. Comm’n, 673 F.2d 525, 528 (D.C. Cir. 1982).

Accordingly, the court affirms the district court’s grant of
summary judgment to the Service and denial of summary
judgment to appellants.
WALKER, Circuit Judge, dissenting:

Did Congress authorize the National Marine Fisheries
Service to make herring fishermen in the Atlantic pay the
wages of federal monitors who inspect them at sea?

Congress unambiguously did not.

I

A fishery is both a group of fish and the fishing for that
group.1 The Magnuson-Stevens Act governs all fisheries in
federal waters.2 Its goal is to keep the fisheries healthy so that
Americans can enjoy the economic, recreational, and
nutritional benefits of a marine ecosystem.3

In pursuit of that goal, the Act allows the National Marine
Fisheries Service to approve fishery management plans, which
set rules for the fisheries they govern.4 Those plans are
developed by regional councils and include provisions
specifying things like the number of fish that will be harvested
in the fishery, the type of fishing gear to be used, and the
reporting methods required.5 When a plan needs updating, the

1
16 U.S.C. § 1802(13).
2
Id. § 1801 et seq.
3
Id. § 1801(b).
4
Id. §§ 1853, 1854(a). The Fisheries Service’s authority is delegated
from the Secretary of Commerce. Although the Appellees also
include the Secretary of Commerce, the Department of Commerce,
and officials in the National Oceanic and Atmospheric
Administration, I refer to the appellees as the “Fisheries Service”
because they are the most direct regulators in this matter.
5
Id. § 1853(a)(4)-(5), (a)(11), (b)(4). The regional councils were
established by the Magnuson-Stevens Act and are made up of
representatives from various interested sectors (commercial,
recreational, governmental, and academic). Id. § 1852.
 2
relevant council submits a proposed amendment to the
Fisheries Service for review.6 The council may also propose
corresponding implementing regulations.7 Then the Fisheries
Service must publish those proposals, take comments, and
approve or disapprove of the proposals.8 If it approves, it will
promulgate them as final regulations.9

That’s what happened here. The New England Council
amended the Atlantic herring fishery management plan to
require that fishermen allow at-sea monitors on many of their
fishing trips, and the Fisheries Service approved its
amendment.10 The at-sea monitors are third-party inspectors
who go aboard fishing vessels to keep an eye on operations.
They track things like how many of which fish are being caught
with what gear. No one disputes that the Magnuson-Stevens
Act allows the Fisheries Service to impose this monitoring
requirement.

But providing a monitor for a days-long fishing voyage
can get expensive, and the Fisheries Service has had trouble
affording its preferred monitoring programs with just its
congressionally appropriated funds.11 Add to that a further

6
Id. § 1852(h)(1).
7
Id. § 1853(c).
8
Id. § 1854(a).
9
Id. § 1854(b)(3).
10
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Industry
Funded Monitoring, 85 Fed. Reg. 7417 (Feb. 7, 2020).
11
Fisheries of the Northeastern United States; Atlantic Herring
Fishery; Amendment 5, 79 Fed. Reg. 8,786, 8,792-93 (Feb. 13, 2014)
(The Fisheries Service has been working since at least 2013 to find a
legal way to use industry funding to increase observer coverage as
 3
problem for the Fisheries Service: Congress generally prohibits
an agency from collecting fees and keeping the money from
those fees for the agency’s own purposes.12 Instead, absent
express statutory authority to keep and spend that money,
agencies can only spend as much money as Congress
appropriates.13

Here, the Fisheries Service attempted a workaround. It
decided to make fishing companies, like Loper Bright
Enterprises, hire and pay for their own at-sea monitors. The
Fisheries Service estimates that for the Atlantic Herring
fishery, those monitors will cost more than $700 per day and
could reduce financial returns to the fishermen by twenty
percent.

The fishermen challenged the amendment and the
implementing regulations in district court and now appeal the

“[b]udget uncertainties prevent [the Fisheries Service] from being
able to commit to paying for increased observer coverage in the
herring fishery.”); see also Fisheries of the Northeastern United
States; Atlantic Mackerel, Squid, and Butterfish Fisheries;
Amendment 14, 79 Fed. Reg. 10,029, 10,038 (Feb. 24, 2014)
(Without industry funding, “increased observer coverage levels
would amount to an unfunded mandate, meaning regulations would
obligate [the Fisheries Service] to implement something it cannot
pay for.”).
12
31 U.S.C. § 3302(b) (With one unrelated exception, “an official or
agent of the Government receiving money for the Government from
any source shall deposit the money in the Treasury as soon as
practicable without deduction for any charge or claim.”).
13
Id. § 1341(a)(1) (“An officer or employee of the United States
Government or of the District of Columbia government may not—
(A) make or authorize an expenditure or obligation exceeding an
amount available in an appropriation or fund for the expenditure or
obligation”).
 4
court’s decision granting summary judgment for the Fisheries
Service.14

I would reverse the judgment of the district court because
the Magnuson-Stevens Act unambiguously does not authorize
the Fisheries Service to force the fishermen to pay the wages
of federally mandated monitors.

II

Agencies are creatures of Congress, so they have no
authority apart from what Congress bestows.15

The Fisheries Service points to the Magnuson-Stevens Act
as its source of authority for requiring fishermen to pay for at-
sea monitors. We review the Fisheries Service’s interpretation

14
Loper Bright Enterprises, LLC v. Raimondo, 544 F. Supp. 3d 82,
127 (D.D.C. 2021).
15
Louisiana Public Service Commission v. FCC, 476 U.S. 355, 374
(1986) (“an agency literally has no power to act . . . unless and until
Congress confers power upon it”); Motion Picture Association of
America, Inc. v. FCC, 309 F.3d 796, 801 (D.C. Cir. 2002) (“An
agency may not promulgate even reasonable regulations that claim a
force of law without delegated authority from Congress.”); Railway
Labor Executives’ Association v. National Mediation Board, 29 F.3d
655, 670 (D.C. Cir.), amended, 38 F.3d 1224 (D.C. Cir. 1994)
(“Agencies owe their capacity to act to the delegation of authority,
either express or implied, from the legislature.”); Bowen v.
Georgetown University Hospital, 488 U.S. 204, 208 (1988) (“It is
axiomatic that an administrative agency’s power to promulgate
legislative regulations is limited to the authority delegated by
Congress.”).
 5
of that statute under the two-step Chevron framework.16 First,
we ask “whether Congress has directly spoken to the precise
question at issue” or “left a gap for the agency to fill.”17 At that
stage, in searching for direction from Congress, we empty our
interpretive toolkit.18 And if it’s clear that the text does not
authorize the agency’s action, the analysis ends, and the agency
loses.19 Only if the statute is ambiguous, and only if “Congress
either explicitly or implicitly delegated authority to cure that
ambiguity,” do we proceed to Chevron’s second step and defer
to the agency’s reasonable interpretation of the ambiguity.20

16
Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-44 (1984).
But see Becerra v. Empire Health Foundation, 142 S. Ct. 2354
(2022) (not mentioning Chevron); National Federation of
Independent Business v. OSHA, 142 S. Ct. 661 (2022) (same); BNSF
Railway Co. v. Loos, 139 S. Ct. 893 (2019) (same); Pereira v.
Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring)
(“Given the concerns raised by some Members of this Court, it seems
necessary and appropriate to reconsider, in an appropriate case, the
premises that underlie Chevron and how courts have implemented
that decision.” (citations omitted)).
17
Chevron, 467 U.S. at 842-43.
18
Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1287 (D.C. Cir.
2000).
19
Chevron, 467 U.S. at 842-43; see also Virginia Uranium, Inc. v.
Warren, 139 S. Ct. 1894, 1900 (2019) (plurality opinion) (“in any
field of statutory interpretation, it is our duty to respect not only what
Congress wrote but, as importantly, what it didn’t write”).
20
Hearth, Patio & Barbecue Association v. United States
Department of Energy, 706 F.3d 499, 504 (D.C. Cir. 2013) (“The
ambiguity must be such as to make it appear that Congress either
explicitly or implicitly delegated authority to cure that ambiguity.
Mere ambiguity in a statute is not evidence of congressional
delegation of authority.” (quoting American Bar Association v.
Federal Trade Commission, 430 F.3d 457, 469 (D.C. Cir. 2005))).
 6
Congress’s silence on a given issue does not automatically
create such ambiguity or give an agency carte blanche to speak
in Congress’s place.21 In fact, all else equal, silence indicates
a lack of authority.22

That means that when agency action is challenged, it is not
the challenger’s job to show that Congress has specifically
prohibited the challenged action.23 Holding challengers to that
burden would be “entirely untenable.”24 Instead, an agency
must positively demonstrate where Congress explicitly or
implicitly empowered it to act.

21
United States Telecom Association v. FCC, 359 F.3d 554, 566
(D.C. Cir. 2004) (“the failure of Congress to use ‘Thou Shalt Not’
language doesn’t create a statutory ambiguity of the sort that
triggers Chevron deference”); American Petroleum Institute v. EPA,
52 F.3d 1113, 1120 (D.C. Cir. 1995) (“we will not presume a
delegation of power based solely on the fact that there is not an
express withholding of such power”).
22
United States Telecom Association, 359 F.3d at 566 (“The
statutory ‘silence’ simply leaves that lack of authority untouched.”).
23
Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1082 (D.C.
Cir. 2017) (“The [agency] and the dissent seem to suggest that the
agency may take an action . . . so long as Congress has not prohibited
the agency action in question. That theory has it backwards as a
matter of basic separation of powers and administrative law. The
[agency] may only take action that Congress has authorized.”);
Railway Labor Executives’ Association, 29 F.3d at 671 (“Were
courts to presume a delegation of power absent an express
withholding of such power, agencies would enjoy virtually limitless
hegemony, a result plainly out of keeping with Chevron and quite
likely with the Constitution as well.”).
24
Motion Picture Association, 309 F.3d at 805-06; see also Gulf
Fishermens Association v. National Marine Fisheries Service, 968
F.3d 454, 456 (5th Cir. 2020), as revised (Aug. 4, 2020) (“Congress
does not delegate authority merely by not withholding it”).
 7

III

Both sides agree that nowhere in the Magnuson-Stevens
Act does Congress explicitly empower the Fisheries Service to
require the Atlantic herring fishermen to fund an at-sea
monitoring program. So to prevail, the Fisheries Service must
point to some implicit delegation of that authority.

It has failed to do so. The Act unambiguously does not
authorize the Fisheries Service to require these fishermen to
pay the wages of at-sea monitors.25

A

The Fisheries Service first relies on 16 U.S.C.
§ 1853(b)(8), which provides that fishery management plans
may:

require that one or more observers be carried on
board a vessel of the United States engaged in fishing
for species that are subject to the plan, for the purpose

25
But see Relentless Inc. v. United States Department of Commerce,
561 F. Supp. 3d 226, 238 (D.R.I. 2021) (Another group of herring
fishermen challenged the same industry-funding provision, and
citing our district court, the District of Rhode Island found that the
Fisheries Service “reasonably interpreted” the Magnuson-Stevens
Act “to authorize” industry-funded monitors in the Atlantic herring
fishery.); Goethel v. Pritzker, No. 15-CV-497-JL, 2016 WL
4076831, at *6 (D.N.H. July 29, 2016), aff'd sub nom. Goethel v.
United States Department of Commerce., 854 F.3d 106, 108 (1st Cir.
2017) (The district court found that the Magnuson-Stevens Act
authorized a similar industry-funding scheme in a different fishery,
but the First Circuit affirmed on timeliness grounds, expressly
declining to decide whether industry funding violated the Act.).
 8
of collecting data necessary for the conservation and
management of the fishery.26

That provision allows the agency to require that fishermen give
at-sea monitors a place on their vessels — the fishermen must
let the monitor “be carried.”

The Fisheries Service argues that such authority implicitly
includes the authority to make the fishermen pay the monitors’
wages because the wages are simply an incidental cost of
complying with the duty to allow monitors onboard. In the
agency’s eyes, it’s no different than, say, the cost of buying
statutorily-required fishing gear.

But that analogy doesn’t hold up.

First, the Act’s language meaningfully differs in its
treatment of gear and observers. Section 1853(b)(4) allows
plans to “require the use” of certain fishing gear. If the Act
similarly allowed plans to require the use of an at-sea monitor,
perhaps the Fisheries Service could argue that the cost of
procuring the monitor was incidental to that command. But
§ 1853(b)(8) doesn’t allow plans to require that fishermen use
observers. It only allows them to require that fishermen let
observers “be carried on board.”

A cost incidental to carrying an observer might include the
additional fuel costs of a marginally heavier boat or the
opportunity cost of giving to the monitor a bunk that would
otherwise be occupied by a working fisherman. Those are
costs that necessarily follow when a fisherman lets a monitor
on his boat. By contrast, there is no inherent, or even intuitive,

26
16 U.S.C. § 1853(b)(8) (emphasis added).
 9
connection between paying a monitor’s wage and providing
him passage.

Second, inspection requirements and gear requirements
are different classes of impositions on regulated parties, and
they carry different expectations.27 Regulatory mandates, such
as gear requirements, often carry compliance costs. But the
Fisheries Service has identified no other context in which an
agency, without express direction from Congress, requires an
industry to fund its inspection regime.

Even if the Fisheries Service had found a few outliers, it is
not usual to require a regulated party to pay the wages of its
monitor when the statute is silent. Nor is it expected. In short,
it is not the type of thing that goes without saying. And here,
Congress didn’t say it.28

B

The Fisheries Service next asks us to find its authority in
§ 1853’s “necessary and appropriate” clauses.29 The first such
clause, § 1853(a)(1)(A), says that fishery management plans:

shall contain the conservation and management
measures, applicable to foreign fishing and fishing by
vessels of the United States, which are necessary

27
Those expectations, of course, inform our interpretation of how
“ordinary people understand the rules that govern them.” Niz-
Chavez v. Garland, 141 S. Ct. 1474, 1485 (2021).
28
See Mozilla Corp. v. FCC, 940 F.3d 1, 83 (D.C. Cir. 2019) (“No
matter how desirous of protecting their policy judgments, agency
officials cannot invest themselves with power that Congress has not
conferred.” (citations omitted)).
29
16 U.S.C. § 1853(a)(1)(A), (b)(14).
 10
and appropriate for the conservation and
management of the fishery, to prevent overfishing and
rebuild overfished stocks, and to protect, restore, and
promote the long-term health and stability of the
fishery.30

And the second such clause, § 1853(b)(14), similarly says that
fishery management plans:

may prescribe such other measures, requirements,
or conditions and restrictions as are determined to
be necessary and appropriate for the conservation
and management of the fishery.31

The Fisheries Service argues that because the monitors’
data collection is important and because the Fisheries Service
can’t afford it, it is necessary and appropriate to make the
fishermen fund it.

For three reasons, I disagree.

First, context tells us that the Fisheries Service’s capacious
reading is wrong. Section 1853(a) says that fishery
management plans must, for example, describe the fishery,
specify a reporting methodology, and identify essential fish
habitats.32 And § 1853(b) says that fishery management plans
may, for example, designate protected coral zones, limit the
type and amount of fish to be caught, and assess the effect of
plan measures on certain fish stocks.33 Those and the other
measures surrounding the “necessary and appropriate”
30
Id. § 1853(a)(1)(A) (emphases added).
31
Id. § 1853(b)(14) (emphases added).
32
Id. § 1853(a)(2), (a)(11), (a)(7).
33
Id. § 1853(b)(2)(B), (b)(3)(A), (b)(9).
 11
provisions “inform[] the grant of authority by illustrating the
kinds of measures that could be necessary” or appropriate.34
And none of the measures in those sections look anything like
the funding scheme that the Fisheries Service contemplates
here.

Second, the logic of the Fisheries Service’s argument
could lead to strange results.35 Could the agency require the
fishermen to drive regulators to their government offices if gas
gets too expensive? Having the agency officials at work may
be “appropriate” for “management of the fishery.” Yet I doubt
that Congress meant to allow for free fisherman chauffeurs.

Or what if Congress were to entirely defund the
compliance components of the Fisheries Service — could the
agency continue to operate by requiring the industry to fund a
legion of independent contractors to replace the federal
employees? That generous interpretation of “necessary and

34
Alabama Association of Realtors v. Department of Health &
Human Services, 141 S. Ct. 2485, 2488 (2021); see also Washington
State Department of Social & Health Services v. Guardianship
Estate of Keffeler, 537 U.S. 371, 384 (2003) (“under the established
interpretative canons of noscitur a sociis and ejusdem generis, where
general words follow specific words in a statutory enumeration, the
general words are construed to embrace only objects similar in nature
to those objects enumerated by the preceding specific words”
(cleaned up)); see also NASDAQ Stock Market, LLC v. SEC, 961
F.3d 421, 428 (D.C. Cir. 2020) (applying the canon to reject an
agency interpretation within the Chevron framework).
35
Merck & Co., Inc., v. United States Department of Health &
Human Services, 962 F.3d 531, 541 (D.C. Cir. 2020) (“the breadth
of the Secretary’s asserted authority is measured not only by the
specific application at issue, but also by the implications of the
authority claimed”).
 12
appropriate” could undermine Congress’s power of the purse.36
So although the words “necessary and appropriate” may be
broad, they cannot be as limitless as the Fisheries Service
suggests.37

Third, if Congress had wanted to allow industry funding
of at-sea monitors in the Atlantic herring fishery, it could have
said so. But it instead chose to expressly provide for it in only
certain other contexts.38 The existence of specific provisions

36
See, e.g., John Holland & Laura Allen, An Analysis of Factors
Responsible for the Decline of the U.S. Horse Industry: Why Horse
Slaughter Is Not the Solution, 5 Kentucky Journal of Equine,
Agriculture, and Natural Resources Law 225, 225-27 (2013)
(Congress used its funding power in its effort to end commercial
horse slaughter by defunding the requisite ante-mortem
inspections.).
37
See Alabama Association of Realtors, 141 S. Ct. at 2489 (“It is
hard to see what measures this interpretation would place outside the
CDC’s reach, and the Government has identified no limit . . . beyond
the requirement that the CDC deem a measure necessary.” (cleaned
up)); Mozilla Corp., 940 F.3d at 75 (“even the allowance of wide
latitude in the exercise of delegated powers is not the equivalent of
untrammeled freedom to regulate activities over which the statute
fails to confer, or explicitly denies, Commission authority” (cleaned
up)).
38
16 U.S.C. § 1862(a) (North Pacific fishery), § 1821(h)(4) (foreign
fishing), § 1853a(e)(2) (limited access privilege programs). A
limited access privilege program is one in which an entity is
permitted to catch a specified portion of the total allowable catch for
all the fishermen per fishing season. Although the fee provision for
limited access privilege programs does not itself mention observers,
it nevertheless covers them. Section 1853a(c)(1)(H) instructs that a
limited access privilege program shall “include an effective system
for enforcement, monitoring, and management of the program,
including the use of observers,” and subsection (e) instructs that
 13
for industry funding elsewhere — for only certain North
Pacific fisheries, foreign fishing, and limited access privilege
programs — suggests that the Fisheries Service can’t turn to a
catchall “necessary and appropriate” prerogative to implicitly
authorize industry funding in the Atlantic herring fishery.39

Take for example the provision governing the North
Pacific fisheries. The statute says that the relevant council
may, in certain North Pacific fisheries, “require[] that observers
be stationed on fishing vessels” and “establish[] a system . . .
of fees . . . to pay for the cost of implementing the plan.”40

That provision and the “necessary and appropriate”
provisions were enacted at the same time.41 It is hard to believe
that, when Congress decided to explicitly allow industry-
funding for observers in one way (fees) in one place (the North
Pacific), it also decided to silently allow all fisheries to fund
observers in any other way they choose.42 The plainer reading

“fees paid by limited access privilege holders . . . will cover the costs
of management, data collection and analysis, and enforcement
activities.”
39
Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (“We have long held
that where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” (cleaned up)).
40
16 U.S.C. § 1862(a).
41
Fishery Conservation Amendments of 1990, Pub. L. No. 101-627,
§ 109(b)(2), 104 Stat. 4436, 4448 (codified at 16 U.S.C.
§ 1853(b)(8)); id. § 118(a), 104 Stat. 4457 (codified at 16 U.S.C.
§ 1862).
42
Gross v. FBL Financial Services, Inc, 557 U.S. 167, 175 (2009)
(“negative implications raised by disparate provisions are strongest
where the provisions were considered simultaneously” (cleaned up)).
 14
of the text is that Congress’s authorization for industry funding
was limited to what it expressly authorized.43

In its briefing, the Fisheries Service tried to explain away
the existence of this specific industry-funding provision by
arguing that Congress merely wanted to “mandate” a certain
solution in the North Pacific.44 But that’s not what Congress
did. The language of the fee provision in the North Pacific is
discretionary, not mandatory.45

The Fisheries Service also tries to draw a distinction
between (1) making fishermen pay for monitors through a
“fee” program like the program used in the North
Pacific — where the money goes to the government, and the
government then uses that money to pay the monitors’
wages — and (2) making the fishermen pay the monitors
directly, as here, without the government as a middleman.46

43
See NASDAQ Stock Market LLC v. SEC, No. 21-1167, 2022 WL
2431638, at *6 (D.C. Cir July 5, 2022) (Although our Circuit has, at
times, been skeptical of the expressio unius canon, when “a grant of
authority . . . reasonably impl[ies] the preclusion of alternatives, the
canon is a useful aide.” (cleaned up)).
44
Government Brief 44 (“In this situation, ‘the contrast between
Congress’s mandate in one context with its silence in another
suggests not a prohibition but simply a decision not to mandate any
solution in the second context, i.e., to leave the question to agency
discretion.’” (quoting Cheney Railroad Co. v Interstate Commerce
Commission, 902 F.2d 66, 69 (D.C. Cir. 1990))).
45
16 U.S.C. § 1862(a)(2) (“The North Pacific council may . . .
require[] that observers be stationed on fishing vessels” and
“establish[] a system . . . of fees . . . to pay for the cost of
implementing the plan.” (emphasis added)).
46
The Fisheries Service is not eager to highlight that the North
Pacific and limited-access schemes are not at all analogous to the
 15
But if the Fisheries Service is correct that the two schemes
aren’t analogous, that shows the novelty of the Fisheries
Service’s scheme for the Atlantic herring fishery — a novelty
that cuts even more against the Fisheries Service’s reliance on
an authority either implied or provided by the catch-all
“necessary and appropriate” clauses. And on the other hand, if
the two schemes are analogous, that suggests that Congress
made a deliberate choice when it expressly approved
fishermen-funded monitoring only for the North Pacific,
foreign fishing, and limited access privilege programs — and
not here.47

scheme at issue here in at least one respect: their cost. In the North
Pacific, if fees are set as a fixed percentage, they may not exceed two
percent of the value of what the ship brings in on a trip. 16 U.S.C.
§ 1862(b)(2)(E). And in the context of limited access privilege
programs, the cap is three percent. Id. § 1854(d)(2)(B). But here,
the required payments to at-sea monitors could reduce the
fishermen’s financial returns by twenty percent.
47
To the extent there is a meaningful difference between paying fees
to the government and paying observers directly, the Magnuson-
Stevens Act already, explicitly, contemplates both. The Act creates
more traditional fee programs in the North Pacific, limited access
privilege programs, and foreign fishing generally. But when the
Fisheries Service has “insufficient appropriations” to provide full
observer coverage for foreign fishing, the Act calls for the
implementation of a supplementary observer program under which
“certified observers” are “paid by the owners and operators of
foreign fishing vessels for observer services.” 16 U.S.C.
§ 1821(h)(6)(C). So we know that Congress is (1) aware of the
possibility that appropriations are sometimes insufficient to cover
observer programs and (2) capable of creating industry-funding
schemes to resolve that dilemma. And the Fisheries Service itself
acknowledges both of those points in a document currently posted on
its website regarding limited access privilege programs. United
States Department of Commerce, National Oceanic and Atmospheric
 16
* * *

Fishing is a hard way to earn a living.48 And Congress can
make profitable fishing even harder by forcing fishermen to
spend a fifth of their revenue on the wages of federal monitors
embedded by regulation onto their ships.

But until Congress does that, the Fisheries Service cannot.

I respectfully dissent.

Administration & National Marine Fisheries Service, The Design
and Use of Limited Access Privilege Programs 3 (Lee G. Anderson
& Mark C. Holliday eds., 2007),
https://www.fisheries.noaa.gov/resource/document/design-and-use-
limited-access-privilege-programs (last updated June 13, 2019) (“In
times of constant or shrinking federal budgets, obtaining the funds to
pay for new management plans is a real concern. Congress implicitly
took this into consideration by mandating a cost recovery program
for LAP programs. . . . Funds to cover the additional costs of the
LAP program will have to come from the current
appropriations. This means that there will have to be cuts
elsewhere. . . . The [councils’] decisions should ensure that the costs
of implementation and operation do not exceed the appropriated and
cost-recovered funds available. Regardless of whether it is a LAP
program, the alternative is the potential disapproval of a [fishery
management plan] (or part of it) where funds are insufficient to carry
out a management choice.” (emphasis added)).
48
Cf. Ernest Hemingway, The Old Man and the Sea (1952); Herman
Melville, Moby Dick (1851); The Perfect Storm (Warner Bros.
Pictures 2000); Billy Joel, The Downeaster “Alexa” (1990); The
Deadliest Catch (Discovery Channel 2005-present); Letter from
Vincent Van Gogh to Theo Van Gogh (on or about May 16,
1882), https://vangoghletters.org/vg/letters/let228/letter.html (“The
fishermen know that the sea is dangerous and the storm fearsome,
but could never see that the dangers were a reason to continue
strolling on the beach.” (emphasis omitted)).