Full opinion text
MEMORANDUM AND ORDER LAGUEUX, District Judge. This Court cannot improve on the Report and Recommendation of United States Magistrate Judge Robert W. Love-green dated May 4, 2001. Therefore, the Report and Recommendation hereby is adopted and accepted pursuant to 28 U.S.C. § 636(b)(1)(B). The bottom line in this case is that the overall trap limit imposed by the Secretary on the deep-sea lobstermen is a reasonable interim conservation measure until such time as the Secretary can secure enough information to develop a fair, individualized, historical trap limit for those lobster-men. Therefore, the Clerk shall enter judgment for the defendant in these three consolidated cases forthwith. It is so ordered. REPORT AND RECOMMENDATION LOVEGREEN, United States Magistrate Judge. All plaintiffs are American lobster fishermen and lobster business owners or shareholders, who reside and whose vessels are berthed in Rhode Island. The three complaints (the first two filed on January 4, 2000, and Jenny Mae, Ine.’s filed on January 5, 2000) allege that certain regulations implemented by the Secretary of Commerce regarding lobster fishing violate the Administrative Procedures Act (“APA”), various provisions of the Magnuson-Stevens Act, and the Regulatory Flexibility Act (“RFA”). The parties stipulated to consolidate the three cases, and the court ordered the cases consolidated on March 16, 2000. Defendant filed his answer on April 11, 2000. On June 7, 2000, defendant filed with the court the certified Administrative Record (“Record”) relating to the disputed regulations. Plaintiffs then filed their consolidated motion for summary judgment (“Plaintiffs’ Motion”) on October 20, 2000, and defendant submitted its objection and cross-motion for summary judgment (“Defendant’s Motion”) on December 1, 2000. Contemporaneously submitted was defendant’s statement of undisputed facts (“Defendant’s Facts”). Subject matter jurisdiction is alleged pursuant to 5 U.S.C. § 611 (the provisions for judicial review within the RFA), 28 U.S.C. § 201 of the Declaratory Judgment Act, and 5 U.S.C. §§ 701-706 (the provisions for judicial review within the APA). This matter has been referred to me for preliminary review, findings, and recommended disposition. 28 U.S.C. § 636(b)(1)(B); Local Rule of Court 32(c). A hearing was held on April 11, 2001. After examining the memoranda submitted, listening to the arguments of counsel, and researching the issues involved, I recommend that defendant’s motion for summary judgment be granted and that plaintiffs’ motion for summary judgment be denied. Factual Background The American lobster, Homarus ameri-canus, is a bottom-dwelling, marine crustacean that has a shrimp-like body and ten legs, two of which are enlarged to serve as crushing and gripping appendages. Record, 5447. The meat of the lobster is so highly prized that it supports one of the most intense and valuable fisheries in North America. Id. The lobster fishery is predominantly sustained by landings from lobster traps: from 1964 through 1994, the average percentage of landings from the non-trap sector totaled 5.74%, and from 1984 to 1994 it was 2.33%. Id. at 5448. The lobster trap regulations that have spawned the instant lawsuit are located at 50 C.F.R. §§ 697.19 and 697.4(a)(7)(v), and provide as follows: § 697.19 Trap limits and trap tag requirements for vessels fishing with traps. (a)Trap limits for vessels fishing or authorized to fish in any Nearshore Management Area. (1) Beginning January 5, 2000, through April 30, 2000, vessels fishing in any EEZ management area except EEZ Offshore Management Area 3, shall not fish with, deploy in, possess in, or haul back from such area more than 1,000 traps. (2) Beginning May 1, 2000, vessels fishing in or issued a management area designation certificate or valid limited access American lobster permit specifying the EEZ Nearshore Management Area(s) and the Area % Overlap, or, only the Area % Overlap, shall not fish with, deploy in, possess in, or haul back from such area more than 800 traps. (b) Trap limits for vessels fishing or authorized to fish in the EEZ Offshore Management Area. (1) Beginning January 5, 2000, through April 30, 2000, vessels fishing only EEZ Offshore Management Area 3, or, fishing only EEZ Offshore Management Area 3 and the Area % Overlap, shall not fish with, deploy in, possess in, or haul back from such area more than 2,000 traps. (2) Beginning May 1, 2000, vessels fishing only in or issued a management area designation certificate or valid limited access American lobster permit specifying only EEZ Offshore Management Area 3, or, specifying only EEZ Offshore Management Area 3 and the Area % Overlap, shall not fish with, deploy in, possess in, or haul back from such area more than 1,800 traps. (c) Trap tag requirements for vessels fishing with traps. Beginning May 1, 2000, any lobster trap fished in Federal waters must have a valid Federal lobster trap tag permanently attached to the trap bridge or central cross-member. (d) In any fishing year, the maximum number of tags authorized for direct purchase by each permit holder is the applicable trap limit specified in paragraphs (a) and (b) of this section plus an additional 10 percent to cover trap loss. § 697.4 Vessel permits and trap tags, (a) Limited access American lobster permit. Any vessel of the United States that fishes for, possesses, or lands American lobster in or harvested from the EEZ must have been issued and carry on board a valid Federal limited access lobster permit. This requirement does not apply to: charter, head, and commercial dive vessels that possess six or fewer American lobsters per person aboard the vessel if such lobsters are not intended for, nor used, in trade, barter or sale; recreational fishing vessels; and vessels that fish exclusively in state waters for American lobster. (7) Management area designations for vessels fishing with traps. (v) A vessel issued a lobster management area designation certificate or limited access American lobster permit specifying more than one EEZ management area must abide by the most restrictive management measures in effect for any one of the specified areas, regardless of the area being fished, for the entire fishing year. Id. Plaintiffs object in particular to § 697.19(b)(2), which limits all vessels licensed to fish in the offshore zone of Area 3 to 1800 lobster traps (“uniform trap cap”), and to the requirement in § 697.4(a)(7)(v) that vessels fishing in more than one EEZ management area must abide by the most restrictive management measures in place in any one of the EEZ areas. Plaintiffs’ complaint comprises six principal claims: first, that the defendant’s decision to adopt the regulations is arbitrary and capricious because it does not contemplate the historic participation of fishing vessels in the lobster fishery. Plaintiffs also argue that a regulation reflecting historic participation would more effectively serve lobster conservation and management goals. Second, plaintiffs assert that defendant did not consult with the appropriate councils before issuing the regulations, and that the regulations are not compatible with “effective implementation of a coastal fishery management plan,” in violation of the Atlantic Coast Fisheries Cooperative Management Act (“ACFCMA”). Third, plaintiffs claim that the regulations violate National Standards 1, 2, 4, 6, and 8 of the Magnuson-Stevens Act, pursuant to 16 U.S.C. § 1851(a) (1994), as incorporated by the ACFCMA. Fourth, plaintiffs claim that the regulations do not comport with the requirements of the Regulatory Flexibility Act, pursuant to 5 U.S.C. §§ 603, 604 (1996). Fifth, plaintiffs claim that defendant did not have authority under the ACFCMA to withdraw the previous lobster management plan and promulgate the new regulations. Finally, plaintiffs state that defendant abused his discretion and violated his statutory authority by promulgating § 697.4(a)(7)(v). a. Statutory and Regulatory Background The procedures for implementing regulations affecting the lobster fishery encompass two federal statutes, the Magnuson-Stevens Act and the ACFCMA, both of which are implicated in this case. i. The Magnusonr-Stevens Act Congress enacted the Magnuson Act (later renamed the Magnuson-Stevens Act) in 1976 “intend[ing] to respond to overfishing and inadequate conservation measures which were threatening future commercial and recreational fishing, as well as the very survival of species.” Parravano v. Babbitt, 837 F.Supp. 1034, 1040 (N.D.Cal.1993), aff'd, 70 F.3d 539 (9th Cir.1995), cert. denied, 518 U.S. 1016, 116 5.Ct. 2546, 135 L.Ed.2d 1066 (1996) (citing 16 U.S.C. § 1801(a)); Lovgren v. Byrne, 787 F.2d 857, 861 (3d Cir.1986) (Magnuson-Stevens Act “was enacted at a time when overfishing of coastal waters was commonplace, threatening the existence of a number of species of fish.”). In order to render more efficient the management process provided for in the Magnuson-Stevens Act, Congress also “created eight regional fishery management councils composed of state fishery managers, the regional NMFS [National Marine Fisheries Service] fisheries administrator, and qualified fishing industry, academic, and environmental representatives.” A.M.L. International, Inc. v. Daley, 107 F.Supp.2d 90, 93 (D.Mass.2000) (citing 16 U.S.C. § 1852(a)(1)). Each council controls the fisheries seaward of the states comprising it, and the primary responsibility of the councils is the development of fishery management plans that establish the rules for each fishery and meet national conservation and management standards established in the Magnuson-Stevens Act. Id. (citing 16 U.S.C. § 1852(h)). The rationale for the changes to the Magnuson-Stevens Act that occurred in 1996 are best summarized by the following language from the A.M.L. case: In 1996, Congress ushered in a new era in fisheries management by making significant revision to the Magnuson-Ste-vens Act through the Sustainable Fisheries Act. See Pub.L. No. 104-297, 110 Stat. 3559 (1996). The Magnuson-Ste-vens Act was revised because, “it was very clear that major changes were needed. Despite numerous efforts to improve the law over the past two decades, the sad reality [was] that the act did not prevent the current crisis in ... groundfish stocks, a crisis for the conservation of both fish stocks and fishing families.” See 142 Cong. Rec. H11418, 11439 (September 27, 1996) (statement of Rep. Studds). Indeed, Congress recognized that revisions to the Magnuson-Stevens act were critical in order to “put our fisheries back onto a sustainable path and literally avert an environmental catastrophe on a national level.... We are precariously close to fisheries failures in many of our most commercially important fish stocks, and it is imperative that we take immediate action if we are to avert disasters.” See 142 Cong. Rec. S10794, 10811-12 (September 18, 1996) (statement of Sen. Kerry). Id. at 93-94. Under the modified Mag-nuson-Stevens Act, if the Secretary of Commerce determines that a fishery is overfished, the Secretary must notify the appropriate fishery council, and request that action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild affected stocks of fish. See 16 U.S.C. § 1854(e)(2); 50 C.F.R. § 600.310(e)(2). Once the council has been notified, it has one year to prepare a fishery management plan (“FMP”) that ends overfishing and rebuilds the stocks. See 16 U.S.C. § 1854(e)(3); 50 C.F.R. § 600.310(e)(3). When a council submits its FMP to the Secretary of Commerce, the Secretary (often acting through NMFS) must review the plan immediately to ensure its compliance with the ten “National Standards” and any other relevant provisions of the Magnuson-Stevens Act, as well as any other pertinent laws. See 16 U.S.C. §§ 1851(a)(l-10), ■ 1854(a)(1); 50 C.F.R. §§ 600.310-600.355. Furthermore, the Secretary must also accept public comment on the plan for sixty days. See 16 U.S.C. § 1854(a)(1)(B). Lastly, the Secretary must approve, disapprove or partially approve the plan within thirty days of the end of the public comment period. See 16 U.S.C. § 1854(a)(3). “The Magnuson-Ste-vens Act’s main thrust is to conserve the fisheries as a continuing resource through a mixed federal-state regime; the FMPs are proposed by state Councils but the final regulations are promulgated by the Secretary through the Fisheries Service.” Massachusetts v. Daley, 170 F.3d 23, 27-28* (1st Cir.1999). n The ACFCMA Enacted in 1993, the ACFCMA reflects Congress’ concern that the absence of one, central governmental management authority (as exemplified by the Magnu-son-Stevens Act’s oligarchic “councils”) had resulted in “disparate, inconsistent, and intermittent State and Federal regulation that has been detrimental to. the conservation and sustainable use of [fishery] resources and to the interests of fishermen and the Nation as a whole.” 16 U.S.C. § 5101(a)(3). To rectify the situation, Congress crafted a new statutory scheme rooted in the Federalist model, wherein [t]he responsibility for managing Atlantic coastal fisheries rests with the States, which carry out a cooperative program of fishery oversight and management through the Atlantic States Marine Fisheries Commission. It is the responsibility of the Federal Government to support such cooperative interstate management of coastal fishery resources. Id. at § 5101(a)(4). Congress envisioned a statutory model that would “support and encourage the development, implementation, and enforcement of effective interstate conservation and management of Atlantic coastal fishery resources.” Id. at § 5101(b). A coastal fishery management plan (“CMP”), the equivalent of the Mag-nuson-Stevens Act’s FMP, is the ACFC-MA’s term for a plan made by the Atlantic States Marine Fisheries Commission (“Atlantic Commission”) for the management of a coastal fishery resource. See id. at § 5102(1). The ACFCMA explicitly addresses the issue of Federal and State cooperation in Atlantic coast fishery management, by providing for the development of federal regulations by the Secretary* of Commerce to support the Atlantic Commission’s management efforts. See id. at § 5103(a). The ACFCMA anticipates the statutory bi-presence of a Magnuson-Stevens Act FMP and an ACFCMA CMP with respect to regulation of EEZ, federally controlled waters: the power of the NMFS to implement federal EEZ regulations complementary to an ACFCMA management plan is contingent upon the absence of a Magnu-son-Stevens Act FMP for the targeted fishery. Id. at § 5103(b)(1). Furthermore, any regulations issued by the Secretary pursuant to the ACFCMA may only be implemented after consultation with the appropriate regional fishery council, and all regulations must comply with the National Standards of the Magnuson-Stevens Act. Id. at § 5103(b)(1)(B). These regulations “may include measures recommended by the [Atlantic] Commission to the Secretary that are necessary to support the provisions of the coastal fishery management plan.” Id. The statute defines a “coastal management plan” as a plan for managing a coastal fishery resource, prepared and adopted by the Atlantic Commission, that: (A) contains information regarding the status of the resource and related fisheries; (B) specifies conservation and management actions to be taken by the States; and (C) recommends actions to be taken by the Secretary in the exclusive economic zone to conserve and manage the fishery. 16 U.S.C. § 5102(1). b. History and Present Status of Lobster Conservation and Management Lobster conservation and management has traditionally occurred under the auspices of the Magnuson-Stevens Act: a lobster FMP was prepared by the New England Fishery Management Council (“NEFMC”) (one of the eight regional councils created by the Magnuson-Stevens Act) and approved and implemented in 1983. See American Lobster Fishery; Removal of Regulations, 61 Fed.Reg. 13, 478 (1996) (to be codified at 50 C.F.R. § 649 (proposed March 27, 1996)). The choice to delegate lobster regulating authority to the NEFMC was a natural one, since American lobsters range geographically from Labrador to Cape Hattaras (although NMFS estimates that 80% of the lobster resource is found in state waters, while the remaining 20% is found in the EEZ). Record, 32, 2321-2356. In 1993, however, the Stock Assessment Workshop Report # 16 (“SAW 16”) disclosed that the American lobster stock was overfished. Id. at 25-65. Fishing mortality rates had increased by 45% from 1983 to 1991. Id. at 46. “[A]nnual landings of American lobster [were] at record high levels.” Id. at 62. These increases were deemed in large measure the result of an increased fishing effort by inshore lobster pot fishermen. Id. Scientists from NMFS and state and private entities in the SAW 16 recommended that fishing mortality be reduced by 20% in the Gulf of Maine and 50% in Southern New England. Id. at 1960. A 1996 panel of independent stock assessment experts (“SAW 22”) confirmed that the American lobster was overfished, and offered similar recommendations to curtail the fishing effort. Id. at 1960-61. “Overall the SAW states that fishing effort is intense throughout the range of the species and that the stock is overfished and vulnerable to collapse.” Id. at 5448. Additionally, in 1999 NMFS found other indicia of dramatic lobster stock depletion: American lobster egg production was estimated to be 1-3% of what it would be in an unfished stock; the bulk of the lobster harvest was comprised of female lobsters just above minimum legal size, which had likely not yet reproduced; roughly 70% of the entire fishable population was being harvested yearly; and the number of traps being set per boat had escalated exponentially, more than tripling on average between 1967 to 1998. Id. at 1961. Despite repeated efforts to revamp the lobster FMP (e.g. the faded attempts of “Amendment 5” to manage and regulate more effectively the EEZ, see New England Fishery Management Council, Amendment 35 to the American Lobster Fishery Management Plan Incorporating a Final Supplemental Environmental Impact Statement: Volume I, at 2 (January 24, 1994)), it became increasingly apparent that the approach taken toward lobster conservation and management under the lobster FMP needed substantial alteration. Thus it was that on March 27, 1996, NMFS proposed to withdraw the lobster FMP “because changed circumstances have called into question whether this FMP is consistent with the national standards of the [Magnuson-Stevens Act].” Record, 811. Instead, NMFS elected to reissue lobster conservation and management regulations under the ACFCMA that would be compatible with the interstate fishery management plan (“ISFMP,” or what was termed “CMP” above). Id. at 811-12. This ISFMP, developed many years earlier by an interstate commission representing Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, and North Carolina, had, since the time of its inception in the late 1970s, operated jointly with NMFS to arrive at common goals and recommendations for the lobster fishery. Id. at 1952. Once NMFS decided to withdraw the lobster FMP in March of 1996, the Atlantic Commission involved in the ISFMP approved what it termed “Amendment 3” to the ISFMP in December of 1997. Id. at 5443-5480. Amendment 3 sets forth particular gear and lobster take requirements in state waters, and specifies throughout its text the recommendations to the Secretary of Commerce for complementary action in federal waters. Atlantic States Marine Fishery Commission, Draft Amendment # 3 to the Interstate Fishery Management Plan for Lobster (1997); Record, 5443-5480. Amendment 3 also contains the following provision regarding the number of traps per vessel permitted in the offshore region of “Area 3:” 3.3.3.1 Limits on the number of traps per vessel In Area 3, the Lobster Conservation Management Team, constituted under Section 3.4, shall develop a program to cap and then reduce effort, based upon historical participation, vessel size or other relevant criteria, for the purpose of achieving the egg production rebuilding schedule of Section 2.5. The program may recommend alternative measures, besides effort control, that would achieve stock rebuilding targets. The program shall be presented to the ASFMC Lobster Management Board prior to July 1, 1998; and be designed for implementation effective January 1, 1999. If a program is not forthcoming, a limit of 2,000 traps shall be implemented -on January 1,1999. Record, 5470. The Area 3 Lobster Conservation Management Team (“LCMT”) referenced above, composed of lobster fishermen and industry representatives (and of which plaintiff Campanale was a member, see Record, 5617), was formed by Amendment 3 to advise and make recommendations to the Atlantic Commission on management measures necessary to restore egg production in Area 3. Id. at 2184. Once the LCMT were to offer its recommendations, these would first be reviewed by the Atlantic Commission’s Lobster Management Board (provided the recommendations were submitted prior to July 1, 1998). Id. at 5470. Next, the recommendations would face the scrutiny of the Atlantic Commission’s Lobster Technical Committee, which would assess their ability to achieve the egg production milestones set by Amendment 3 for the year 2000. Id. at 2184. The 2,000 trap limit set by Section 3.3.3.1 of Amendment 3 was, thus, a default measure, that would take effect if the LCMT were not to present any timely and viable alternative. With respect to federally regulated waters, the Atlantic Commission recommended that the federal government promulgate regulations that were in conformity with the repletion and lobster management objectives of Amendment 3. Id. at 5473. Egg Production (Percent of Maximum) Year 1998 1999 2000 2001 2002 2003 2004 2005 Gulf of Maine 3.25 3.25 4.375 5.5 6.625 7.75 8.875 10 + Georges Bank & South 1.68 1.68 3.07 4.46 5.85 7.24 8.63 10 + SCCLIS 2.21 2.21 3.51 4.81 6.11 7.41 8.71 10 + [an area comprising "Area 2" and the Long Island Sound] Bearing in mind Amendment 3’s lobster conservation scheme, NMFS issued a draft Environmental Impact Statement (“DEIS”) on March 17, 1998. Id. at 1257-1373. NMFS, too, agreed with earlier assessments that “American lobsters are ov-erfished throughout their range, from Canada to Cape Hattaras.[T]here is a significant risk of a sharp decline in abundance.” Record, 1263. The DEIS considered various lobster management alternatives with an eye toward providing some consistency and compatibility with the Amendment 3 program. Id. at 1258. The DEIS examined several alternatives for the trap/pot lobster fishery: maintaining the status quo (Alternative 1); implementing Amendment 3’s 2000 trap-cap limit for the year 2000 in the EEZ (Alternative 2); implementing a nearshore/offshore trap cap differential, with a buffer zone, and otherwise continuing all other management measures that were in place at the time (Alternative 3); a two-tier nearshore and offshore trap limit with a buffer zone (Alternative 4); nearshore fixed trap limits / offshore historic participation (Alternative 5); and banning fishing for and possession of lobsters altogether (Alternative 6). Id. The parties now agree that the Area 3 LCMT proffered its plan to the ASFMC Lobster Management Board on July 29, 1998, nearly one month after the deadline prescribed under the Atlantic Commission’s Amendment 3. Record, 5684-5691. The tardiness of this submission is recognized in a letter dated July 16, 1998, from Bonnie Spinazzola, Executive Director of the Atlantic Offshore Lobstermen’s Association (“AOLA,” a private association of lobster fishermen and industry representatives), to Jon Rittgers, Acting Regional Director of NMFS. Id. at 5613. In the letter, Ms. Spinazzola states: As I am sure you are aware, one of the many fishery management plans being formulated or updated is the plan for American Lobster. As you can well imagine, AOLA is extremely interested and concerned with management within federal waters.... For this reason, our Association, which is comprised of approximately 60% of the offshore fleet, formulated an industry driven plan which, we believe, will sustain the resource .... We are in the process of meeting with State Directors, also members of ASMFC as well as individuals at NMFS.... Unfortunately, however, as I am sure you are aware, the Area 3 LCMT, whose deadline to formulate a plan was July 1, has yet to organize it’s (sic) first meeting.... We are concerned that in the absence of an Area 3 LCMT, or possibly with the very late start of the process, it will be nearly impossible to bring this or any plan for federal waters to the technical committee for evaluation prior to their scheduled meeting in August. Record, 5613 (emphasis supplied). The text of the LCMT plan provides that “[n]o vessel shall be given an Initial Trap Allocation of more than 3,250 Traps, regardless of previous historical participation.” Record, 5687. The LCMT plan also would implement a variety of measures to verify a particular vessel’s historic participation in the lobster fishery (including submitting an audit of trap usage from an auditor approved by NMFS, or submitting a full season’s logbook with or without support from a state or federal report). Id. at 5687-88. “Industry,” the plan states, “by initially agreeing upon a starting cap of 3,250 traps, has forced some vessels to reduce effort by 58% prior to sliding scale trap reductions.” Id. (emphasis in original). The referenced “sliding scales” would take the following form: A. Reduction program trap. Each Area 3 trap allocation of greater than 1,200 traps will be reduced on a sliding scale basis over 5 years. Trap reductions will not go below a baseline of 1200 traps. Area 3 trap allocations of less than 1200 traps will remain at their initial qualifying level and will not be permitted to increase up from that number. Id. On October 27, 1998, the Lobster Technical Committee of the Atlantic Commission sent their report regarding the Area 3 LCMT plan to the Lobster Management Board. Record, 5807-5815. The Technical Committee approved the Area 3 LCMT plan, though it had numerous questions and comments about the efficacy of various management provisions in the plan. Id. at 5810. The Atlantic Commission then met in April and May of 1999 “to begin public review of major components of the LCMT proposals, for ultimate consideration of approval by December 1999.” Record, 1971. In the meanwhile, NMFS, too, continued in its efforts to develop lobster fishing regulations for the EEZ compatible and complementary with the Atlantic Commission’s state-directed measures. Record, 5473. Plaintiffs direct the court’s gaze toward various pieces of correspondence indicating that several individuals involved in this process endorsed including the historic participation approach within the final rule. Nevertheless, having considered the comments received on its DEIS, NMFS published its proposed rule (“Proposed Rule”) on January 15, 1999, without including the Area 3 LCMT historic participation plan. Record, 1831-51. The Proposed Rule provided the following: 7. Off-shore area trap limits and maximum trap size. NMFS proposes that Federal permit holders electing to fish in Area 3 be limited to no more than 2000 traps in 1999 and 1800 traps in 2000. Further reductions of this trap limit may be required in the future if the egg-rebuilding schedule is not met by these limits.... Record, 1835. At this time, the Atlantic Commission had not yet approved the Area 3 LCMT plan, and it was not included by NMFS in the Proposed Rule. However, during the public comment period (which ran from January 11, 1999 to February 26,1999), “[fjour hundred and seventy-eight commenters requested that NMFS delay implementation of management measures until the Commission approve[d] the LCMT management plan.” Record, 2325. The next step taken by NMFS was to publish a Final Environmental Impact Statement (“FEIS”) on May 10, 1999. Then, on August 3,1999, the Atlantic Commission at long last approved the Area 3 LCMT plan, terming it “Addendum 1” to Amendment 3 of the ISFMP. Record, 6183. The Atlantic Commission also recommended in Addendum 1 that NMFS implement the substance of the Area 3 LCMT plan. Record, 6194. Based on the Atlantic Council’s recommendation, NMFS published a notice of proposed rulemaking on September 1, 1999. Record, 2183-2185. The following statements by NMFS demonstrate that NMFS had begun to formulate a methodology for implementing a historic participation plan at some future date: Proposed rulemaking may include potential eligibility criteria based on historical participation and/or historical trap levels in [Lobster Conservation Management Areas].... Consideration of a control date does not commit NMFS to any particular management regime or criteria.... Fishermen are not guaranteed future participation in any management area, regardless of their entry date or intensity of participation in the fishery. Record, 2184. On December 6, 1999, NMFS published its final rule (“Final Rule”), implementing the flat trap limit of 1,800 traps to begin in May of 2000, and elected to disregard the historic participation alternative. Record, 2321-2356 (2324). Defendant argues that NMFS’ own rulemaking process was so advanced by the time the Atlantic Commission recommended the Area 3 LCMT plan, that it would have been utterly unfeasible for NMFS to subject the Atlantic Commission’s new recommendation to the scrutiny required under federal rulemaking procedures: NMFS had nearly completed its work on the lobster rulemaking, and consideration of new measures would have required the following measures required (sic) under an [Administrative Procedure Act] rulemaking: revocation of the existing Proposed Rule; rewriting the DEIS, Regulatory Impact Review (“RIR”) and initial regulatory flexibility analysis (“IRFA”); solicitation of public conu ment on a new DEIS for 45 days; issuance of a new proposed rule for at least 30 days of public comment; development and clearance through the Office of Management and Budget of a new Paperwork Reduction Act package; analysis of public comments; review under the Endangered Species Act; resubmission of the coastal zone consistency determinations to each state on the East Coast; preparation of a new final rule that responds to the new round of public comments; issuance of a new final regulatory impact analysis (“FRFA”); and clearance of the final rule through the NMFS regional office, headquarters, the National Oceanic and Atmospheric Administration, the Department of Commerce, and the Office of Management and Budget. This process, especially for an allocation system based on historic participation in such a traditional and valuable fishery as American lobster, could take 1-2 years. Defendant’s Motion, P. 12. NMFS believed that such a “continued delay for full consideration of the LCMT plans until a date yet to be determined by the Atlantic States Commission jeopardizes needed management measures to protect the lobster resource.” Record, 2325. Plaintiffs argue that “[a]s late [as] May through June of 1999 NMFS was still indicating that the Area 3 [LCMT] plan would receive consideration and could potentially be adopted by January 1, 2000.” Plaintiffs’ Motion, P. 14. “Again, however, despite all of these representations to the contrary,” complain plaintiffs, “when the final rule was released, NMFS took the easy way out and did not include [the Area 3 LCMT plan] in its provisions.” Id. at 14-15. Issues 1. What is the standard of review for actions seeking judicial review of administrative regulations promulgated pursuant to the ACFCMA and the APA? 2. Was the decision to promulgate the uniform trap cap regulation arbitrary and capricious, because defendant did not first consider the historic participation of fishing vessels in the lobster fishery, or because a regulation reflecting historic participation more effectively serves lobster conservation and management goals? 3. Did defendant exceed his statutory authority under the ACFCMA in promulgating the regulations, because defendant did not first consult with the appropriate councils, or because the regulations are not compatible with the “effective implementation of a coastal fishery management plan?” 4. Was the decision to promulgate the uniform trap cap arbitrary and capricious, because it contravenes the mandates of national standards 1, 2, 4, 6, and 8 of the Magnuson-Stevens Act? 5. Was the decision to promulgate the uniform trap cap arbitrary and capricious, because this regulation does not comport with the requirements of the RFA? 6. Was the decision to promulgate the regulations in excess of the defendant’s statutory authority under the ACFC-MA, because there was already a lobster FMP in place pursuant to the Magnuson-Stevens Act? 7. Was the defendant’s decision to promulgate 50 C.F.R. § 697.4(a)(7)(v) arbitrary and capricious, an abuse of discretion, and in violation of the defendant’s statutory authority? Analysis a. Standard of Review for Regulations Issued Pursuant to the ACFCMA and the APA The challenged regulations were promulgated by NMFS and the Secretary of Commerce pursuant to their authority under the ACFCMA. See 16 U.S.C. §§ 5101-5108. The parties are in agreement that the regulations, as promulgated under the ACFCMA, are governed by the provisions for judicial review of the APA, pursuant to 5 U.S.C. §§ 701-706. Plaintiffs’ Motion, P. 2; Defendant’s Motion, P. 5. Unlike in the Magnuson-Stevens Act, however, there is no specific provision within the text of the ACFCMA that calls for judicial review pursuant to §§ 701-706 of the APA. See 16 U.S.C. § 1855(f) (section for Judicial Review in the MagnusonStevens Act, which has no counterpart in the ACFCMA). When Congress does not make explicit in a particular statute what standard of review a court should employ in reviewing the decisions of an administrative agency, the appropriate standard of review is then found under the APA. See Dubois v. United States Department of Agriculture, 102 F.3d 1273, 1284 (1st Cir.1996) (federal statutes which do not specify a standard of review are governed by the APA standards of judicial review); Oregon Natural Resources Council v. United States Forest Service, 834 F.2d 842, 851 (9th Cir.1987) (where Congress does not include a section for judicial review within an enactment, judicial review under the APA is “ ‘ordinarily inferred’ and appropriate”). Title 5 U.S.C. § 706(2) provides that a reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. 5 U.S.C. § 706(2)(A-F). An important distinction must now be drawn. Plaintiffs bring two categories of claims before this court. First, plaintiffs assert that the defendant exceeded his authority, under the provisions of the ACFCMA, when he issued the challenged regulations: this genre of claim encompasses Issue 3 (the allegation that the defendant did not confer with the appropriate councils prior to issuing the regulations) and Issue 6. Second, plaintiffs bring claims alleging that the defendant acted arbitrarily and capriciously by selecting the lobster conservation and management options that he did: Issues 2, 4 and 5 fall under this category (Issue 7 is a hybrid, since plaintiffs claim that 50 C.F.R. § 697.4(a)(7)(v) is arbitrary and capricious and in excess of defendant’s statutory authority). This second grouping derives its source not from an allegation of improper statutory usurpation, by the defendant; rather, plaintiffs claim that the decisions made by the defendant, which were within his statutory authority, were rooted in an arbitrary or capricious rationale. The distinction is critical because the first type of claim warrants de novo review by the court, while the second affords the agency decision a distinct degree of deference. North Carolina Fisheries Association, Inc. v. Brown, 917 F.Supp. 1108, 1113 (E.D.Va.1996) (“The question of whether the Secretary exceeded his authority under the statute ... is a question of law that is reviewed de novo.”). Thus, for those allegations decrying an arrogation of statutory authority pursuant to the ACFC-MA, this court should employ a de novo standard of review. By contrast, the court must defer to the interpretation of a statute by the agency charged with administering it, and the standard under 5 U.S.C. § 706(2)(A) presumes the agency action to be valid. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Southern Cal. Edison Co. v. F.E.R.C., 770 F.2d 779, 782 (9th Cir.1985). Although the court’s inquiry is to be searching and careful, the ultimate standard of review for this second category is a narrow one. See Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The role of the reviewing court is to “ ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment.’ ” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (citing Overton Park, 401 U.S. at 416, 91 S.Ct. 814). “A reviewing court may decide only whether [the Secretary’s] discretion was exercised rationally and consistently with the standards set by Congress ... and may not substitute its own judgment as to values and priorities for that of the Secretary.” Maine v. Kreps, 563 F.2d 1052, 1055 (1st Cir.1977). With respect to a court’s review of a specific regulation adopted by an agency pursuant to its delegated authority, [the] regulation will be found to be arbitrary and capricious ‘if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ Connecticut v. Daley, 53 F.Supp.2d 147, 157 (D.Conn.1999) (citing Southeastern Fisheries Ass’n, Inc. v. Mosbacher, 773 F.Supp. 435, 439 (D.D.C.1991)) (citing Motor Vehicle Mfrs. Ass’n v. State Farm, Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443))). Where an agency action is taken upon an administrative record, it must be reviewed based only on that record, subject to limited exceptions. Massachusetts v. Daley, 170 F.3d at 27 n. 4 (citing Sierra Club v. Marsh, 976 F.2d 763, 772-73 (1st Cir.1992)). The Secretary’s assessment of which fishery conservation and management measures would be in the nation’s best interest is “a classic example of a factual dispute the resolution of which implicates substantial agency expertise.” National Fisheries Institute, Inc. v. Mosbacher, 732 F.Supp. 210, 223 (D.D.C.1990). Therefore, “[f]or a court to set aside the Secretary’s action, it ‘must find that the administrative record is so devoid of justification for the Secretary’s decision that the decision is necessarily arbitrary and capricious.’ ” Connecticut v. Daley, 53 F.Supp.2d at 158 (citing J.H. Miles and Co., Inc. v. Brown, 910 F.Supp. 1138, 1146 (E.D.Va.1995)). “When a regulation is not adequately supported, the normal practice is to set it aside pending further proceedings,” though the court may alternatively order a remand to the agency for further explanation while leaving the regulation in force. Massachusetts v. Daley, 170 F.3d at 32 (citing Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). b. Is the uniform trap cap an arbitrary and capricious regulation because defendant adopted it without regard to historic participation in the American lobster fishery? Plaintiffs first claim constitutes the following allegation: A review of the entire administrative record will show that, throughout the entire course of the discussion, meetings, memos, E-mails, and other documents involved in the process of developing the regulations, historic participation in the offshore fishery as the measure for capping and reducing effort had always been considered a viable alternative. In fact, at various times in the record it can be seen that certain individuals or branches of NMFS were in favor of a trap cap based upon historic participation. Why the historic partic-’ ipation option was rejected is not adequately explained anywhere on the record. Plaintiffs’ Motion, P. 8. Defendant concedes that “[i]t is undisputed that trap limits based on historic participation were and are considered a viable alternative for management of the offshore fishery.” Defendant’s Motion, P. 15. Indeed, once a management alternative based on historic participation was recommended by the Atlantic Council on August 3,1999, defendant states that it “published an Advanced Notice of Proposed Rulemaking (‘ANPR’) on trap limits based on historic participation ... [and] published a Draft Supplemental EIS (‘DSEIS’) on November 24, 2000, that examines additional ways to reduce fishing effort, including trap limits based on historic participation.” Id. (borne out at Record, 2143). However, defendant argues that the historic participation management plan was not a viable and complete alternative at the time the defendant issued the Proposed Rule, and that significant unresolved issues remained at the time the Final Rule was published .... [B]oth NMFS and the Commission considered resolution of these issues to be necessary before implementation of trap limits based on historic participation, and both entities were also concerned that the LCMT Plan did not reflect an industry consensus. Id. Thus, defendant argues, the tardiness of the submission of a plan based on historic participation coupled with the lack of industry consensus on the plan approved by the Area 3 LCMT on July 29, 1998 (approved, incidentally, in one meeting) bespeaks an eminently reasonable decision by the defendant to disregard the historic , participation alternative in its Final Rule of December 6,1999. I am inclined to agree with defendant’s position, particularly given the highly deferential standard of review this court is bound to apply. See Marsh, 490 U.S. at 378, 109 S.Ct. 1851. The text of the ACFCMA requires a cooperative effort between the federal (here, NMFS) and state (the Atlantic Council) authorities in order to conserve and manage geographically wide-ranging fisheries, such as the lobster fishery, more effectively. NMFS complied with this statutory mandate by adhering to the schedule proposed by the Atlantic Commission in its Amendment 3 recommendation for Area 3, the offshore waters. The schedule required that the Area 3 LCMT propose a plan for lobster conservation to the Lobster Management Committee of the Atlantic Commission by July 1, 1998, to be ready for implementation on January 1, 1999. The Record reflects, and the parties now agree, that the Area 3 LCMT plan was not submitted to the Lobster Technical Committee until nearly a month after the deadline, on July 29, 1998. Amendment 3’s explicit language contemplates this very sort of tardiness: “If a program is not forthcoming, a limit of 2,000 traps shall be implemented on January 1, 1999.” Record, 5470. NMFS evidently made the judgment that the Area 3 LCMT plan was not “forthcoming,” since the LCMT failed to meet the schedule set out in Amendment 3. NMFS had delayed implementation of its Final Rule as late as June 18, 1999, frustrated that the Atlantic Commission had not yet decided whether or not to approve the Area 3 LCMT plan. Record, 2129. The Atlantic Commission had delayed its decision regarding the Area 3 LCMT plan yet again, this time “tentatively scheduled no earlier than August 1999.” Id. Given the clear indications of depleted lobster stock, the need for rapid action to rectify a degenerating problem, and the seemingly interminable delay of the Atlantic Commission in deciding whether or not to approve the Area 3 LCMT plan, this court is loath to rule that defendant’s decision to proceed with its own lobster conservation and management rulemaking in December of 1999 is arbitrary and capricious. Plaintiffs raise five principal arguments in support of the notion that the defendant acted arbitrarily and capriciously by failing to consider the historic participation alternative in the Final Rule. First, plaintiffs point to the correspondence of July, 1998, between Mr. Rosenberg, Regional Administrator for NMFS’ Northeast region and Mr. Schmitten, Assistant Director for Fisheries, referenced above at footnote 12(1). In his letter, Mr. Rosenberg recommended “[i]mplement[ing] a 2,000 trap limit or implementing] ASMFC’s Area 3 CMT conservation equivalent recommendations ... including allowing trap levels fished at some identified historic participation level” for 1999, and “[i]mplement[ing] an 1,800 trap limit or conservation equivalent measures” for 2000. Record, 1503 (emphasis supplied). Plaintiffs claim that Mr. Schmitten “concurred in this recommendation,” but do not indicate any evidence in the Record to support this assertion. Plaintiffs’ Motion, P. 12. Even if this court were to assume that both Schmitten and Rosenberg were in agreement on this point, this agreement would not assist plaintiffs’ cause. Mr. Rosenberg stated that a historic participation plan was one recommended option; also recommended was a plan implementing a 2,000 and 1,800 flat trap cap for 1999 and 2000 respectively. It was perfectly rational, therefore, for defendant to select the flat trap caps, especially when other plans based upon historical participation were not forthcoming or were unready for implementation. Second, plaintiffs direct the court’s attention to “an undated email from August of 1998,” written by Harry Mears, referenced above at footnote 12(2). Plaintiffs’ Motion, P. 12. In this email, Mr. Mears represents that, assuming that the Area 3 LCMT plan received approval from the Atlantic Commission’s Lobster Technical Committee and Lobster Board and were forwarded to NMFS, “[t]he Proposed Rule will as envisioned allow for consideration of the Area 3 proposal in 1999.... The current plan is to allow 30 days after publication of the Proposed Rule to accommodate this ... otherwise the 2,000 default kicks in.” Record, 1517. Plaintiffs make the utterly unwarranted leap of logic to suggest that this email constitutes a binding assurance that the historical participation alternative would be integrated within the Final Rule. When Mr. Mears wrote this missive, it is quite possible that NMFS’ “current plan,” in August of 1998, was one which contemplated the theoretical incorporation of the Area 3 LCMT plan. But the fact that the Area 3 LCMT historic participation alternative was not considered or ultimately made part of the Final Rule is not relevant to the present inquiry. Plans change, but that is not necessarily an indicium of arbitrariness and capriciousness. Defendant has given a rational explanation for its decision not to incorporate that alternative, based on the late submission and approval of the plan, the significant industry dissension regarding its application, and the considerable doubts expressed by NMFS regarding the LCMT plan implementation. Third, plaintiffs argue that the uniform trap cap does little if anything to ameliorate the plight of the lobster fishery. Plaintiffs cite for support the memorandum of Michael P. Sissenwine, Science and Research Director at NMFS, dated October 8, 1998. Record, 1586-1590. In this memorandum to Harry Mears, Mr. Sissen-wine criticizes the uniform trap cap, stating that the “proposed rule does little to address the overfished condition of the lobster resource, and even less to address stock rebuilding.” Record, 1586. Sissen-wine goes on to say that the Proposed Rule is ineffective because it does not prevent lobstermen who historically used less than 2,000 or 1,800 traps from increasing their trap numbers. Id Furthermore, Sis-senwine states that “the average number of traps fished by offshore vessels is approximately 1,300 traps,” which he believes indicates that a cap of 2,000 or 1,800 would not assist in lobster stock repletion. Id at 1589. Finally, he states that [t]aken as a whole, these measures provide a cap to future effort expansion but provide little or no assurance that the current overfished status of the resource will be stabilized or even reversed. Thus, there appears to be little economic gain relative to the status quo other than providing some measure of surety that the current status will not get worse. Id Defendant, too, has offered scientific proofs in support of the uniform flat trap. He points first to the SAW 16, SAW 22, and the Bannister Report of 1996, all of which concluded that the lobster resource is overfished, that egg production is dramatically and dangerously low, and that lobster trap caps are presently not implemented. See Record, 1961. Defendant also states: According to data presented at the “Lobster Summit” sponsored by the New England Aquarium in Boston, Massachusetts, in February 1997 ... NMFS estimates that 26% and 27.4% of Federal permit holders in the nearshore and offshore (Area 3) EEZ fisheries fished more traps in 1995 than Federal regulations will allow under proposed regulations. Since expansion in numbers of traps has likely increased since 1995, the resulting benefits of trap limits on achieving reductions in lobster fishing mortality are probably underestimated. Record, 1972. NMFS did acknowledge that “the conservation benefits of trap limits and trap reductions are difficult to quantify, due to such factors as gear efficiency and saturation, and changes in fishing practices.” Id. Additionally, NMFS recognized and addressed the criticism that “Federal permit holders who previously fished fewer traps in the absence of a trap limit would decide to increase fishing effort up to that limit once that limit was established.” Id. Nevertheless, NMFS avers that “[t]he capping and reduction of fishing effort is an important step in reducing lobster fishing mortality at some threshold level, which when combined with other management measures, will increase the effectiveness of those measures and achieve ISFMP objectives to end overfishing and rebuild stocks of American lobster.” Id. (emphasis supplied). NMFS also analyzes its own historical participation alternative (Alternative 5 in the DEIS and FEIS), and concludes that “[t]he number of lobster traps under this alternative will likely increase in the offshore EEZ waters .... [I]t would likely contribute to higher lobster mortality levels, thereby prolonging the achievement of lobster management goals throughout the range of the resource.” Id. at 1997. Sissen-wine, himself, was of the opinion at the time of his memorandum that the Area 3 LCMT plan presented significant shortcomings, as evidenced by the following criticism of that plan: The ASFMC’s Lobster Conservation Management Teams (LCMTs) (sic) proposals have so far done little, if anything, to reduce the number of traps in any of the areas except offshore Area 3.... Most of the increased effort in the EEZ (perhaps even fishery-wide) has occurred in the nearshore region (3-30 miles). Currently, there are about 64 trip boats fishing the “true” offshore region (40 miles from shore). Effort continues to increase in the 3-30 mile region, and boats have been moving further out with more gear each year. The proposed rule “caps” effort in the offshore region at 2000 traps per boat, and reduces this cap to 1800 after one year. The current proposal from the Area 3 LCMT is for a tiered set of trap caps/reductions that begin at about 1850 traps per boat (an average) and then are steadily reduced to 1500 per boat in five years. A limit to entry in the fishery is assumed thereby ensuring that an increase does not occur in the overall number of traps. However, this proposal addresses only effort reduction in the “true” offshore area (Area 3), but not in the 3-30 mile zone (Areas 1, 2, 4, 5 and Outer Cape Cod). Id. at 1587. Defendant also states that the status of the lobster stock would be reevaluated after the year 2000 to determine whether or not the trap limits under the Final Rule are having the desired lobster conservation and management effects. Record, 1970. Fourth, plaintiffs emphasize the criticisms of Eric Thunberg, in his letter to Harry Mears dated October 15, 1998, discussing the economic impact of the proposed rule on fishing vessels: The potential economic impacts of each of the management measures that will apply to entities engaged in harvesting American lobster are not readily quantifiable. Without mandatory reporting no data is available to determine numbers of traps fished, productivity, or firm revenues and costs.... Trap Caps.Although not always the case, it is generally recognized that vessels in excess of 50 feet are required to prosecute the offshore fishery.... [I]t seems likely that approximately 30% of all trap vessels in 1997 will have to reduce the numbers of traps fished in order to come into compliance with the proposed trap caps by the year 2000.... The economic impacts of trap reductions will depend upon the relative magnitude of the reduction and whether or not competing entities increase the number of traps they fish. Reducing the number of traps fished is equivalent to giving up territory. Firms that will be faced with relatively small reductions will not be forced to give up fishing area. Firms that will be faced with moderate to large reductions will be giving up more territory. If competing firms do not seek to take over the lost area, the reducing firm may be able to maintain profitability by making the adaptations described previously. However, if firms do take over lost territory either by shifting existing traps or by increasing traps than (sic) these competing firms will be able to increase their own profitability at the expense of the reducing firms. Record, 1594. This is hardly a wholehearted condemnation of the Final Rule. It proposes two hypothetical scenarios, one of which would, indeed, favor implementation of the uniform trap caps. It also indicates that as many as 30% of all trap vessels in 1997 would have been affected by the 2,000 /1,800 limitation. The court takes note of the difference of opinion concerning the Final Rule, and the general lack of consensus about the best modus operandi to approach the problems of lobster conservation. It also recognizes that it is difficult to predict with any precision how the Final Rule issued by the defendant will impact, positively and/or negatively, the repletion of the lobster stock. But judges are not marine biologists nor have they, in the main, any experience in lobster management. Defendant has provided substantial Record support to indicate that his implementation of a uniform trap cap at some threshold level was a reasonable and rational decision, and that it will have the effect of limiting the number of traps fished for a sizable proportion of the lobster fishing industry. See Associated Fisheries of Maine v. Daley, 127 F.3d 104, 109 (1st Cir.1997) (“Subject, of course, to statutory constraints, policy choices are for the agency, not the court, to make. Even if a reviewing court disagrees with the agency’s conclusions, it cannot substitute its own judgment for that of the agency.”). As explained by the First Circuit: An agency rule is arbitrary and capricious if the agency lacks a rational basis for adopting it — for example, if the agency relied upon improper factors, failed to consider pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency expertise. Id.; See A.M.L., 107 F.Supp.2d at 97. Such is not the case here; while plaintiffs have demonstrated that there is a difference of opinion among some individuals about the efficacy of the uniform trap cap, they have not demonstrated that adoption of the rule, with or without consideration of the historical participation alternative as expressed in the Area 3 LCMT plan, was an arbitrary and capricious act. c. Did defendant exceed his statutory authority under the ACFCMA in issuing the regulations, because he did not first consult with the appropriate councils or because the uniform trap cap is incompatible with effective implementation of a coastal fishery management plan? Plaintiffs argue that defendant violated the following provisions of 16 U.S.C. § 5103(b): (1) In the absence of an approved and implemented fishery management plan under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), and after consultation with the appropriate Councils, the Secretary may implement regulations to govern fishing in the exclusive economic zone that are— (A) compatible with the effective implementation of a coastal fishery management plan 16 U.S.C. § 5103(b)(1) (emphasis supplied). “The term ‘Councils’ means Regional Fishery Management Councils established under section 1852 of this title.” 16 U.S.C. § 5102(5). Plaintiffs state that “[i]n this case the two applicable councils would be the New England Fishery Management Council [‘NEFMC’] and the Mid-Atlantic Fishery Management Council [‘MAFMC’].” Plaintiffs’ Motion, P. 17. Plaintiffs argue that because no “consultation” took place between the Secretary and these councils, defendant exceeded his statutory authority under the ACFCMA when he issued the regulations. Plaintiffs do concede that while “[t]here are letters from the councils contained within the administrative record” these are not a “consultation” within the meaning of the ACFCMA. Id. Plaintiffs cite to no case, merely offering up the American Heritage Dictionary’s definition of “consultation,” which plaintiffs believe implies “some sort of meeting and discussion.... If. there is no consultation between the Secretary and the appropriate councils, then the process used to adopt the regulation is flawed.” Id. at P. 18. Defendant makes no written response to this argument, and had little to say at oral argument on this issue. There is evidence that a copy of the FEIS was forwarded to Paul Howard, the Executive Director of the NEFMC and to David R. Kiefer, Executive Director of the MAFMC, Record, 2055, and there is further evidence that “NMFS received several hundred written and oral comments on the American Lobster DEIS during the public comment period” from March 27 through May 19, 1998, some of which were from the NEFMC and the MAFMC. Record, 2060-61. “All of the comments,” NMFS states, “were carefully considered.” Id. Furthermore, there are five comments on the DEIS authored in part by the NEFMC (Comments 11, 12, 27, 59, and 60, all at Record, 2106-2115) to which NMFS responded directly, some of which dealt with the uniform trap cap. Plaintiffs do not believe these sorts of involvements by NEFMC and MAFMC constitute adequate “consultation” under the ACFCMA, but they do not offer any legal basis for