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Each Council is charged with the responsibility

of preparing and submitting to the Secretary a fishery management plan with respect to each fishery within its geographical area of authority.27/ If any fishery overlaps the geographical areas of authority of two or more Councils, the Secretary may designate one Council to prepare the plan or require that it be prepared jointly.28/ In the preparation of the plans, the Councils are required to conduct public hearings in the area concerned "so as to allow all interested persons an opportunity to be heard."29/ The Councils may also submit proposed regulations to the Secretary for implementation of the plans.30/

Upon receipt of any plan prepared by a Council, the Secretary must review it for conformity with the requirements of the Act and notify the Council within 60 days of his decision to approve, disapprove, or partially disapprove the plan. 31/ If he approves the

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and Wildlife Service, the Coast Guard, the Department of
State and the appropriate Marine Fisheries Commission, if
any. Id. $302 (c) (1). The Pacific Council has an additional
non-voting member appointed by the Governor of Alaska. Id.
$302 (c) (2).

FCMA $302 (h) (1). The Act defines a "fishery" as "one or
more stocks of fish which can be treated as a unit for pur-
poses of conservation and management and which are identi-
fied on the basis of geographical, scientific, technical,
recreational, and economic characteristics." Id. §3(7).
Applying that general definition in a particular fact situa-
tion may sometimes be difficult. For example, are one or
several "fisheries" involved in the taking of salmon in the
Northwest? Those salmon are taken for commercial, recrea-
tional and subsistence purposes by commercial trolling, gill
nets, reef nets and purse seines. See Department of Com-
merce, National Marine Fisheries Service, Draft Environmen-
tal Impact Statement/Preliminary Fishery Management Plan:
Troll Salmon Fishery of the Pacific Coast 66 (Sept. 1976).
FCMA $304(f)(1).

Id. $302 (h) (3).

30/ Id. $304 (c).

31/ Id. §304(a). In carrying out his review, the Secretary is obligated to consult with the Secretary of State with respect to foreign fishing and with the Secretary of the de

plan, he may proceed to implement it.32/ If he disapproves it in whole or in part, he must explain his reasons for doing so, make suggestions for improvement, and request that the Council submit a modified plan within 45 days.33/ If the Council fails to modify the plan in an appropriate fashion, the Secretary may himself prepare a plan. 34/

When the Secretary prepares a plan, he must transmit it to the appropriate Council for consideration and comment. The Council may recommend changes within 45 days, but after that period the Secretary may proceed to implement the plan.35/

If the Secretary of State notifies the Secretary of Commerce that a foreign nation has submitted an application to participate in any fishery subject to the exclusive management jurisdiction of the United States, and if the Secretary of Commerce determines that no management plan will be prepared and implemented for that fishery before March 1, 1977, he may prepare a

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partment in which the Coast Guard is operating (i.e., the Department of Transportation during peacetime or the Department of Defense during wartime) with respect to enforcement. Id. $304 (b).

The implementation of management plans is discussed infra at text accompanying notes 55-60.

FCMA $304 (a).

Id. $304 (c) (1) (B). The Secretary may also prepare a plan
if the Council fails altogether to submit a plan "after a
reasonable period of time" for any fishery which "requires
conservation and management." Id. $304 (c)(1) (A). Presuma-
bly, if the fishery does not "require" conservation and man-
agement, or if the Secretary chooses not to prepare a plan
in such a situation, there will be no plan for that fishery,
notwithstanding the Act's directive to the Councils to pre-
pare a plan for "each fishery" in the areas of their author-
ity. See text accompanying note 27 supra.

FCMA $304 (c) (2).

"preliminary fishery management plan."36/ The Act specifies no procedures for the development of such preliminary plans other than to require that any "interim regulations" which implement it must be promulgated pursuant to the informal rulemaking procedures of the Administrative Procedure Act.37/ Once prepared, preliminary plans remain in effect until replaced by a management plan prepared in accordance with the procedures previously described.

2. The Content of Management Plans

All management plans, whether prepared by the Secretary or by the Councils, must incorporate "conservation and management" measures which comply with seven national standards set forth in the Act.38/ Para

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Id. $201 (g). The Secretary of Commerce did not wait for
notification from the Secretary of State to being prepara-
tion of preliminary fishery management plans. Instead, in
October, 1976, he began preparation of preliminary plans for
those fisheries "for which foreign nations may be expected
to apply for permits to fish" and for which the Councils
"may not be able to prepare and implement fishery management
plans before March 1977." 41 Fed. Reg. 47570 (Oct. 29,
1976).

Notwithstanding the absence of any required procedures, the
draft preliminary plans prepared to date have been incorpo-
rated in draft environmental impact statements which in turn
have been the subject of "public meetings" held to solicit
public views and comments. Id.
The Act defines "conservation and management" to include all
measures "which are required to rebuild, restore, or main-
tain, and which are useful in rebuilding, restoring, or
maintaining, any fishery resource and the marine environ-
ment." FCMA $3(2) (emphasis added). Query whether the un-
derscored language authorizes the Councils or the Secretary
to include in management plans conservation measures which
are not directly related to the taking of fish? The guide-
lines issued by the Secretary to assist in the development
of management plans note that since the proper management of
stocks will "require biological research on the impact of
pollution, and on the effects of wetland and estuarine deg-
radation on fish," management plans "should consider these
and other habitat factors." The guidelines also require
that the plans include "[a]n estimate of any restoration or

phrased, those standards require that such measures: (1) prevent overfishing and assure an optimum yield from each fishery; (2) be based on the best scientific information available; (3) provide for the management of individual or interrelated stocks as a unit; (4) not discriminate between residents of different states; (5) promote efficiency; (6) allow for contingencies; and (7) minimize costs.39/

The most important of these standards is the first, for each management plan must, in addition to describing the fishery involved and specifying certain data to be reported periodically, "assess and specify... the maximum sustainable yield and optimum yield" from the fishery and "the capacity and the extent to which fishing vessels of the United States, on an annual basis, will harvest the optimum yield."40/ Only that portion of the optimum yield which will not be harvested by fishing vessels of the United States can be made available to foreign fishermen. 41/

The determination of the "optimum yield" of a given fishery not only establishes the permissible level of foreign participation in that fishery, but it may also function to limit the participation of United States fishermen. That is, the Act allows any management plan to include "a system for limiting access to

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improvement measures necessary to ensure a habitat suitable to sustain the fishery resource" and a "reference to any existing applicable Coastal Zone Management plans and the relationship of such plans to the fishery management plan." 50 C.F.R. §§602.2(d)(3)(ii) and 602.3(a)(3) at 41 Fed. Reg. 39442-44 (Sept. 15, 1976).

FCMA $301(a).

Id. $303(a)(3), (4).

41/ Id. $303(a) (4) (B).

the fishery in order to achieve optimum yield."42/

In

the development of such a system, the Act requires that the following factors be taken into account

(A) present participation in the fishery;
(B) historical fishing practices in, and
dependence on, the fishery,

(C) the economics of the fishery,

(D) the capability of fishing vessels
used in the fishery to engage in other
fisheries,

(E) the cultural and social framework
relevant to the fishery, and

(F) any other relevent consideration.43/

In addition, under the national standards, any allocation of fishing privileges among United States fishermen must be:

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(A) fair and equitable to all such
fishermen;

(B) reasonably calculated to promote
conservation; and

(C) carried out in such manner that no
particular individual, corporation, or

Id. $303(b)(6). If a plan is prepared by the Secretary, it may include a system for limiting access only if first approved by a majority of the voting members of the appropriate Council. Id. $304 (c) (3).

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Id. $303(b)(6). By requiring consideration of these diverse
factors, the Act illuminates the meaning of the national
standard which, while requiring "efficiency in the utiliza-
tion of fishery resources", specifies that no conservation
and management measure "shall have economic allocation as
its sole purpose. Id. $301 (a) (5). Query how this standard
can be reconciled with the standard requiring all conserva-
tion and management measures to be "based upon the best sci-
entific information available"? Note that the Secretary's
guidelines define "scientific information" to include "in-
formation of a biological, ecological, economic, and socio-
logical nature." 50 C.F.R. $602.2(c)(1) at 41 Fed. Reg.
39442 (Sept. 15, 1976).

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