7. The circumstances under which an interim rule may be adopted are very

narrow. 57 FR 375; 62 FR 44421. The standards provide:

The preparation or approval of management actions under the

emergency provisions of section 305(c) of the Magnuson Act

should be limited to extremely urgent, special circumstances

where substantial harm to or disruption of the resource, fishery,

or community would be caused in the time it would take to

follow standard rulemaking procedures. An emergency action

may not be based on administrative inaction to solve a long recognized

problem. In order to approve an emergency rule,

the Secretary must have an administrative record justifying

emergency regulatory action and demonstrating its compliance

with the national standards. In addition, the preamble to the

emergency rule should indicate what measures could be taken

or what alternative measures will be considered to effect a

permanent solution to the problem addressed by the

emergency rule.

. . . .

Emergency Justification

If the time it would take to complete notice-and-comment

rulemaking would result in substantial damage or loss to a

living marine resource, habitat, fishery, industry participants, or

communities, emergency action might be justified under one or

more of the following situations:

(1) Ecological -- (A) to prevent overfishing as defined in a

fishery management plan (FMP), or as defined by the

Secretary in the absence of an FMP; or (B) to prevent other

serious damage to the fishery resource or habitat; or

(2) Economic -- to prevent significant direct economic loss or

to preserve a significant economic opportunity that otherwise

might be foregone; or

(3) Social -- to prevent significant community impacts or conflict

between user groups.

57 FR 375.

8. The Gag Closure does not meet any of these tests. First, Gag were not

affected by any oil spill. Second, NMFS has already proposed that Gag Grouper fishing

will occur within the GOM sometime in 2011 under Amendment 32. Third, the Gag Closure

does not prevent but rather creates conflict between user groups. Fourth, Defendants’

failure to fix MRFSS does not create an emergency. It is faulty MRFSS data that creates

a false conclusion of “overfishing.”

9. A temporary closure cannot be adopted to allow NMFS more time to correct

errors in the discard mortality data for Gag which it has readily acknowledged now exist.

See 75 FR 63786. Neither should a temporary closure be premised upon faulty or

otherwise incomplete information.

10. Emergency action has become a routine course of conduct for NMFS in the

GOM, contrary to 62 FR 44422.. Amendment 30B was preceded by a temporary rule in

2009. The current Gag Closure is to be followed by Amendment 32.

tide event in 2005 under which NMFS theorizes without any contemporaneous biological

observations, study or data that the 2005 red tide affecting the Eastern GOM killed 23% of

the estimated population abundance of Gag Grouper. (Gag Update Assessment, p. 18).

12. NMFS incorrectly theorized that decline in catch data after 2005 reflected not

a decline in effort but rather a steep decline in population. Stated differently, NMFS, in

effect, used erroneous MRFSS data to perform a stock assessment. Instead of

acknowledging that MRFSS overstates effort (as it admitted in July 2005), NMFS and the

Gulf Council pretend its science is sound. See Exh. “A.”

13. In 2006, Defendant released a gag grouper stock assessment for the Gulf of

Mexico based on data collected through 2004 (SEDAR 10).

14. On April 16, 2009, Defendant published Amendment 30B to the Reef Fish

FMP in the Federal Register based on the 2006 gag assessment for the Gulf of Mexico. 74

FR 17603. Amendment 30B was effective May 18, 2009. Amendment 30B establishes a

recreational grouper aggregate bag limit of four (4) fish per day. Within the aggregate bag

limit, no more than two (2) gag grouper may be caught. Similarly, no more than two (2) red

grouper may be caught. 30B also includes a recreational closed season for all

shallow-water grouper from February 1, through March 31 of each year.

15. In August 2009, NMFS issued an update gag grouper stock assessment the

results of which rely almost exclusively on the red tide hypothesis.

16. Throughout most of 2009 and all of 2010, Amendment 30B and its lower bag

limit for gag grouper has been in effect.

17. NMFS has not performed any update assessment on gag grouper since the

workshop in 2009.

18. The Gag Closure should be declared unlawful. NMFS cannot show “extremely

urgent, special circumstances where substantial harm to or disruption of the resource,

fishery, or community would be caused in the time it would take to follow standard

rulemaking procedures.” 57 FR 375.

19. Emergency regulations “bypass the ordinary scheme of the Magnuson-

Stevens Act.” Commonwealth of Massachusetts v. Daley, 170 F.3d 23, 24 (1st Cir. 1999).

Thus, the power to issue emergency regulations must be “narrowly construed.” See A.M.L.

International, Inc. v. Daley, 107 F. Supp. 2d 90 (D. Mass. 2000). The National Standards

are to be adhered to even when the Secretary takes emergency action. 57 Fed. Reg. 375.

20. NMFS or its designee signed the Gag Closure on December 1, 2010 to

prevent timely judicial review from taking place.

21. The Gag Closure is unlawful to the extent that the Secretary of Commerce

did not personally evaluate the rule and sign off on the rule as required by 16 U.S.C. §

1854.

22. The Gag Closure is not based on the best available science.

23. Mortality from red tide is already included within the computation of natural

mortality and cannot justify additional restrictions beyond the bag limits within Amendment

30B.

24. The Gag Closure is unlawful because it contains obvious errors related to the

weight of regulatory discards.

25. The Gag Closure is unlawful because the discard mortality rate (estimated

at 32%) is overstated and therefore the gag biomass is severely understated. See 75 FR

63787. The corresponding red grouper dead discard rate is 14%. 74 FR 17605.

26. The Gag Closure is also unlawful because it violates the National Standard

9 regarding by-catch. Gags will be caught incidental to the catch of red grouper.

27. If the Gag Closure is upheld, the two-month closure for red grouper should

be lifted because its sole purpose was to prevent the incidental catch of gag grouper. 74

FR 17605. Red grouper are not undergoing overfishing. 75 FR 74656. There is no need

for a two-month closure for red grouper as the current catch is beneath the target catch.

75 FR 63782.