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 27/ 28/ 29 and Wildlife Service, the Coast Guard, the Department of FCMA $302 (h) (1). The Act defines a "fishery" as "one or 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 32/ 33/ 341 35/ 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 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 36/ 37/ 38/ Id. $201 (g). The Secretary of Commerce did not wait for Notwithstanding the absence of any required procedures, the 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 39/ 40/ 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; (C) the economics of the fishery, (D) the capability of fishing vessels (E) the cultural and social framework (F) any other relevent consideration.43/ In addition, under the national standards, any allocation of fishing privileges among United States fishermen must be: 42/ 43/ (A) fair and equitable to all such (B) reasonably calculated to promote (C) carried out in such manner that no 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). 11 Id. $303(b)(6). By requiring consideration of these diverse |