7. The circumstances under which an interim rule
may be adopted are very
narrow. 57 FR 375; 62 FR 44421. The standards
The preparation or approval of management actions
emergency provisions of section 305(c) of the
should be limited to extremely urgent, special
where substantial harm to or disruption of the
or community would be caused in the time it would
follow standard rulemaking procedures. An
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
emergency regulatory action and demonstrating its
with the national standards. In addition, the
preamble to the
emergency rule should indicate what measures could
or what alternative measures will be considered to
permanent solution to the problem addressed by the
If the time it would take to complete
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
Secretary in the absence of an FMP; or (B) to
serious damage to the fishery resource or
(2) Economic -- to prevent significant direct
economic loss or
to preserve a significant economic opportunity
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
11. The current Gag Closure is premised upon the
existence of a red
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.
13. In 2006, Defendant released a gag grouper
stock assessment for the Gulf of
Mexico based on data collected through 2004 (SEDAR
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. §
22. The Gag Closure is not based on the best
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
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.