Can North Carolina's Marine Fisheries Commission enforce state fishery rules against fishing vessels in the federal Exclusive Economic Zone off the North Carolina coast?
Plain-English summary
The federal Exclusive Economic Zone (EEZ) extends from three miles (the outer limit of state territorial waters) to 200 miles off the U.S. coast. NC state waters lie within three miles; the EEZ off NC's coast lies beyond.
The NC Marine Fisheries Commission asked the AG about state authority to enforce NC fishery rules against vessels operating in the federal EEZ off NC. The answer turns on the 1996 amendments to the Magnuson-Stevens Fishery Conservation and Management Act, the federal law governing fisheries in the EEZ.
The amended federal rule. Under 16 U.S.C. § 1856(3)(A):
A State may regulate a fishing vessel outside the boundaries of the State in the following circumstances: (A) The fishing vessel is registered under the law of that State, and (i) there is no fishery management plan or other applicable Federal fishing regulations for the fishery in which the vessel is operating; or (ii) the State's laws and regulations are consistent with the fishery management plan and applicable Federal fishing regulations for the fishery in which the vessel is operating.
Two requirements both apply: (1) the vessel must be registered under the state's law, and (2) either there is no federal plan for the fishery, or the state rule is consistent with the federal plan.
Legislative intent. Senate Report 104-297 (p. 30) explains: the 1996 amendment was meant "to clarify that a State may regulate a fishing vessel registered under its laws outside its boundaries if there is no Federal fishery management plan in place for a fishery, or if the State's laws are consistent with a Federal fishery management plan in place for a fishery." The pre-1996 version had been "somewhat vague" on the state's authority.
What "registered under the law of the State" means. The Senate Report identifies three ways a vessel is registered:
- The owner, captain, or vessel holds a state-issued fishing license or other document that is prerequisite to participating in the fishery;
- The vessel is numbered in the state; or
- The vessel's federal documentation lists a homeport within the state.
What "regulate" includes. The AG read the term to include enforcement, not just rulemaking. Two state-court precedents support this:
- State v. Hayes, 603 A.2d 869 (Me. 1992)
- People v. Weeren, 607 P.2d 1279 (Cal. 1980), construing the prior version of 16 U.S.C. § 1856(3)(A)
So NC's Marine Patrol has both subject-matter jurisdiction and territorial jurisdiction over NC-registered vessels in the EEZ, within the constraints of the federal rule.
What the Marine Patrol cannot do. The opinion is candid about the limit. An out-of-state vessel that fishes in the EEZ off NC and then lands its catch in another state is beyond Marine Patrol reach. The vessel is not registered in NC, so the state extraterritorial enforcement authority does not extend to it. NC can only cite that vessel once it enters NC state waters (within three miles) and only for conduct that violates NC state-waters rules.
One pragmatic workaround. If the federal-EEZ activity also matches a state-waters prohibition (for example, possession or landing of a particular species), and the out-of-state vessel later enters NC state waters or lands in NC, the state-waters violation can be cited. This works around the registration limit when the violation logic carries into state jurisdiction.
Currency note
This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The Magnuson-Stevens Act has been amended multiple times since 1998 (most notably the 2006 reauthorization, P.L. 109-479). The basic state-vessel-in-EEZ framework in § 1856(3)(A) has remained but with various refinements. Federal fishery management plans for specific fisheries (e.g., summer flounder, dogfish, monkfish) have evolved substantially. Anyone working on a current enforcement question should pull the current text of 16 U.S.C. § 1856 and the specific federal plan for the fishery at issue.
Common questions
Q: What is the EEZ?
A: The Exclusive Economic Zone is the federal-controlled ocean area extending from the outer limit of state territorial waters (3 nautical miles for most U.S. states) to 200 nautical miles seaward. The EEZ is governed by federal law (the Magnuson-Stevens Act and regulations) and managed through federally chartered Regional Fishery Management Councils.
Q: How does a fishing vessel get "registered under the law of the State"?
A: Per the Senate Report, three paths: (1) the vessel's owner, captain, or the vessel itself holds a state-issued fishing license that is required to participate in the fishery; (2) the vessel is numbered in the state under state vessel numbering rules; or (3) the vessel's federal documentation declares a NC homeport.
Q: Why does NC care about EEZ enforcement?
A: Many commercial fisheries operate primarily in the EEZ but are landed in NC ports. State management of, for example, the summer flounder fishery is meaningful only if NC can reach NC-registered vessels operating in the EEZ. Without extraterritorial authority, NC management would be a paper tiger.
Q: Can NC have stricter rules than the federal plan?
A: Yes, if the federal plan does not preempt or the state rule is "consistent" with the federal plan. "Consistent" generally means the state rule is at least as protective as the federal plan and does not undermine its core conservation goals.
Q: What if there is no federal plan for a particular fishery?
A: Then NC can regulate its registered vessels in the EEZ without the consistency constraint. The federal default in those situations is that the state may step in to fill the regulatory gap for its own vessels.
Q: What is the practical effect for an out-of-state commercial fisherman fishing off NC?
A: They are not subject to NC state law in the EEZ, only to federal law and the law of their state of registration. NC can stop them only if they enter NC state waters with a violation that NC state law independently prohibits.
Q: Does this opinion affect recreational fishing in the EEZ?
A: The Magnuson-Stevens Act framework applies to both commercial and recreational fishing. The same state-registration rule governs whether NC can enforce against a particular recreational vessel in the EEZ.
Background and statutory framework
The Magnuson Fishery Conservation and Management Act (now the Magnuson-Stevens Act) was enacted in 1976 to establish federal management of fisheries in the 200-mile zone, displacing foreign fishing fleets and creating federal Regional Fishery Management Councils. The Act preempts state jurisdiction in the EEZ as a general matter, but provides a carve-out for state regulation of state-registered vessels under § 1856(3)(A).
The 1996 amendments (the Sustainable Fisheries Act, P.L. 104-297) clarified and strengthened the state-registered-vessel carve-out. The 1998 AG opinion was issued shortly after the amendments and reflects their direct application.
The federal management framework consists of (1) Regional Fishery Management Councils that develop fishery management plans, (2) the Secretary of Commerce who approves and implements the plans, and (3) NOAA Fisheries (the National Marine Fisheries Service) that enforces. State enforcement under § 1856(3)(A) is an overlay on this framework, limited to state-registered vessels and consistent state rules.
The pragmatic effect is that NC's Marine Patrol can cite NC-registered vessels for violations in the EEZ, but cannot cite out-of-state vessels unless those vessels enter NC state waters with an independent state-law violation. The limit reflects the federalism premise that state extraterritorial authority depends on the state's regulatory hook into the vessel.
Citations
- 16 U.S.C. § 1856(3)(A) (Magnuson-Stevens Act state-registered-vessel carve-out, as amended in 1996)
- Senate Report 104-297, p. 30 (legislative intent for the 1996 amendments)
- State v. Hayes, 603 A.2d 869 (Me. 1992) (state "regulate" includes enforcement of state rules against state-registered vessels)
- People v. Weeren, 607 P.2d 1279 (Cal. 1980) (same principle under prior version of 16 U.S.C. § 1856(3)(A))
Source
- Landing page: https://ncdoj.gov/opinions/marine-fisheries-commission/
Original opinion text
Best-effort transcription based on the text NCDOJ publishes at the landing URL; the published page omits the salutation block and begins mid-analysis. The linked landing page is authoritative.
(3) A State may regulate a fishing vessel outside the boundaries of the State in the following circumstances:
(A) The fishing vessel is registered under the law of that State, and (i) there is no fishery management plan or other applicable Federal fishing regulations for the fishery in which the vessel is operating; or (ii) the State's laws and regulations are consistent with the fishery management plan and applicable Federal fishing regulations for the fishery in which the vessel is operating. 16 U.S.C. § 1856(3)(A).
The Legislative History of the amendment sets out the intent of Congress:
. . . to clarify that a State may regulate a fishing vessel registered under its laws outside its boundaries if there is no Federal fishery management plan in place for a fishery, or if the State's laws are consistent with a Federal fishery management plan in place for a fishery.
Senate Report 104-297, p. 30. The Legislative History recognized that the existing Magnuson Act provision was "somewhat vague with respect to a State's authority to regulate its own vessels." The amendment was "intended to allow a State to apply State regulations to fishing vessels registered in that State." Id.
Therefore, under the Magnuson Act, as newly amended, a state may "regulate" vessels "registered under" its laws fishing in the EEZ if there is no federal fishery management plan ("FMP") or regulation for the fishery, or if the State regulation is consistent with the applicable federal FMP or regulation for that fishery. In this context, the term "regulate" includes enforcement of the state's laws and rules against vessels registered in that state. See State v. Hayes, 603 A.2d 869 (Me. 1992); People v. Weeren, 607 P.2d 1279 (Ca. 1980) (construing prior version of Magnuson Act, 16 U.S.C. § 1856(3)(A)).
The Legislative History also clarifies the meaning of the term "registered under the law of the State."
Vessels would be considered registered under the law of a State if: (1) the owner, captain or vessel holds a fishing license or other document issued by the State that is prerequisite to participating in the fishery; (2) the vessel is numbered in the State; or (3) the vessel's Federal documentation lists as a homeport a location within the State. Senate Report 104-297, p. 30.
Therefore, the Marine Fisheries Commission has the power to regulate North Carolina vessels in the EEZ, and the Marine Patrol has the power to cite those vessels in the EEZ. It is our opinion that the Marine Patrol has both subject matter jurisdiction and territorial jurisdiction over state registered vessels in the EEZ, subject to the restrictions set forth above. However, there remains no recourse available to the Marine Patrol against out-of-state vessels fishing in the EEZ off North Carolina and landing fish in another state. Of course, if the conduct prohibited in the EEZ is also prohibited in State waters, such as possession or landing, an out-of-state vessel may be cited once it enters State waters.
Thank you for your inquiry. Please advise us if we can be of further assistance.
signed by:
Daniel C. Oakley
Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General
cc: Preston Pate; Frank Crawley; Dan McLawhorn