[Senate Report 115-430]
[From the U.S. Government Publishing Office]
Calendar No. 729
115th Congress } { Report
SENATE
2d Session } { 115-430
_______________________________________________________________________
DRIFTNET MODERNIZATION AND BYCATCH REDUCTION ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2773
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 11, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
89-010 WASHINGTON : 2018
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fifteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
DEAN HELLER, Nevada TOM UDALL, New Mexico
JAMES M. INHOFE, Oklahoma GARY C. PETERS, Michigan
MIKE LEE, Utah TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin TAMMY DUCKWORTH, Illinois
SHELLEY MOORE CAPITO, West Virginia MARGARET WOOD HASSAN, New Hampshire
CORY GARDNER, Colorado CATHERINE CORTEZ MASTO, Nevada
TODD C. YOUNG, Indiana JON TESTER, Montana
Nick Rossi, Staff Director
Crystal Tully, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Calendar No. 729
115th Congress } { Report
SENATE
2d Session } { 115-430
======================================================================
DRIFTNET MODERNIZATION AND BYCATCH REDUCTION ACT
_______
December 11, 2018.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 2773]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2773) to improve the management
of driftnet fishing, having considered the same, reports
favorably thereon with an amendment (in the nature of a
substitute) and recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 2773 is to phase out the U.S. West Coast
large-scale driftnet fishery, which primarily targets
swordfish, and to implement a program to help the affected
fishers transition to alternative gear types.
Background and Needs
Large-scale driftnet fishing, as defined by the Magnuson-
Stevens Fishery Conservation and Management Act (MSA), is a
method of fishing in which a gillnet composed of a panel or
panels of webbing, or a series of such gillnets, with a total
length of two and one-half kilometers (just over one and one
half statute miles) or more is placed in the water and allowed
to drift with the currents and winds for the purpose of
entangling fish.\1\ The only such large-scale drift gillnet
fishery in the United States is on the west coast and primarily
targets swordfish, but also harvests other commercially
valuable species, such as thresher and mako shark and opah
(also known as moonfish).
BYCATCH ISSUES IN THE DRIFT GILLNET FISHERY
The term ``bycatch'' refers to species that are harvested
in a fishery, but which are not sold or kept for personal use,
and includes both unmarketable and regulatory discards.\2\ In
the early 1990s, the U.S. swordfish gillnet fishery off the
west coast killed hundreds of whales, sea turtles, and dolphins
annually.\3\ Beginning in 1996, the National Marine Fisheries
Service (NMFS) convened the Pacific Offshore Cetacean Take
Reduction Team under the authority of the Marine Mammal
Protection Act to develop strategies to reduce entanglement of
protected species, which included net modifications and sound-
emitting devices. NMFS also designated two large conservation
areas off the west coast that are closed to drift gillnet
fishing when endangered sea turtles are known to be frequently
present. These measures have resulted in a decline of bycatch
of protected species to levels comparable to other U.S.
fisheries, including the U.S. Atlantic swordfish longline
fishery.\4\
PERMITTING HISTORY
The MSA prohibits large-scale driftnet fishing that is
subject to the jurisdiction of the United States (i.e., in
waters where U.S. law applies) and by U.S. vessels beyond the
exclusive economic zone (EEZ)\5\ of any nation.\6\ Within the
U.S. EEZ, the drift gillnet fishery on the west coast\7\ is co-
managed by the National Oceanic and Atmospheric
Administration's (NOAA) NMFS, the Pacific Fishery Management
Council (PFMC), and California, operating under a limited entry
permit system.\8\ Federal management of the West Coast drift
gillnet fishery occurs under the PFMC's Highly Migratory
Species (HMS) Fishery Management Plan (FMP). NMFS partially
approved the HMS FMP in 2004, except for the recommendation to
implement Federal permitting of the fishery. Until 2018, West
Coast drift gillnet fishery permits were issued only by States.
The Oregon Fish and Wildlife Commission managed the drift
gillnet fishery for swordfish under the Developmental Fisheries
Program. In 2009, Oregon removed swordfish from the
Developmental Fisheries Program and, consequently, State
permits to fish with drift gillnet gear off Oregon are no
longer allowed, leaving California as the only State permitting
this fishery.\9\ More recently, in September 2018, California
enacted legislation to phase out the use of large-mesh drift
gillnets under California law and compensate a permit holder
set amounts for a permit ($10,000) and gear ($100,000).\10\
At the Federal level, in March 2017, the PFMC recommended
amending the HMS FMP to implement a limited entry drift gillnet
permit, which would put all aspects of the drift gillnet
fishery under MSA authority. In March 2018, NMFS issued a final
rule to implement this recommendation to create a Federal
limited entry permit for the California/Oregon large-mesh drift
gillnet fishery.\11\ Under the FMP as amended, the relatively
few remaining California permit holders (the number of active
participating vessels in the fishery has remained low, with
under 50 vessels since 2003, and an average of only 20 active
vessels per year from 2010 through 2015\12\) have until March
31, 2019, to obtain their Federal permits. If such a permit
holder does not obtain a Federal permit by this deadline, he or
she will lose the opportunity to do so.
ALTERNATIVE GEAR
The only other gear currently authorized for targeting
swordfish in the U.S. West Coast EEZ is harpoon gear. In 2014,
the PFMC recommended, and in 2015 NMFS approved, the first of
several exempted fishing permits to evaluate the success and
economic viability of alternative gears to target swordfish in
the Eastern Pacific Ocean.\13\ These alternative gears include
deep-set buoys and deep-set longlines. The West Coast design
for deep-set buoy gear uses heavy weights to lower baited hooks
to depths of more than 1,000 feet during the day, avoiding
unmarketable or federally protected species that reside in
shallower waters. The buoy gear uses an electronic strike
detection system to alert fishermen when a fish is on the line
and allows for quick retrieval when hooked.\14\ Swordfish
caught by deep-set buoy gear can fetch higher market prices for
fishermen with a lower rate of bycatch of nonmarketable species
and protected species,\15\ though it is yet unknown if this
would translate to higher market value for all permitted
fishers if the entire fishery were to transition to deep-set
buoy gear.
PREVIOUS RULEMAKING
In 2016, the PFMC recommended that NMFS implement
regulations for the California/Oregon large-mesh drift gillnet
fishery to establish hard caps on the number of certain
protected species (sea turtles, Endangered Species Act-listed
marine mammals, bottlenose dolphins, and short-finned pilot
whales) caught, and close the fishery for the remainder of the
season if the caps are met or exceeded within a rolling 2-year
period. NOAA proposed this rulemaking in October 2016,\16\ but
later withdrew it in June 2017,\17\ having concluded that the
proposal would have likely imposed significant new costs while
also overlapping existing conservation measures already in
place and therefore not providing significant conservation
benefit.\18\ The Marine Mammal Commission found the proposed
regulations inadequately justified, and expressed concern about
potentially undermining the integrity of the take reduction
process of the Marine Mammal Protection Act.\19\ On October 24,
2018, the U.S. District Court for the Central District of
California held that NOAA's withdrawal of the October 2016
rulemaking exceeded the agency's authority under the MSA and
the Administrative Procedure Act (APA).\20\ The court remanded
the matter for further action by NOAA consistent with the
requirements of section 304 of the MSA (16 U.S.C. 1854) and the
APA.
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\1\16 U.S.C. Sec. 1802(25).
\2\16 U.S.C. Sec. 1802(2).
\3\NOAA National Marine Fisheries Service, ``Two Decades Later,
Focused Efforts on Reducing Entanglements in Gillnet Fishery Still
Paying Off,'' June 2017 (http://www.westcoast.fisheries.noaa.gov/
stories/2017/09_06082017_drift_gillnet.html) (accessed July 18, 2018).
\4\Id.
\5\The U.S. EEZ is a zone contiguous to the territorial sea of the
United States, Puerto Rico, the Northern Mariana Islands, and U.S.
overseas territories and possessions that extends 200 nautical miles
from shore, as established by Proclamation Numbered 5030, dated March
10, 1983. For purposes of the MSA, the inner boundary of the EEZ is a
line coterminous with the seaward boundary of each of the coastal
States.
\6\16 U.S.C. Sec. 1857(1)(M).
\7\As defined in 60 CFR 660.702, a drift gillnet is a panel of
netting, 14 inch (35.5 cm) stretched mesh or greater, suspended
vertically in the water by floats along the top and weights along the
bottom. A drift gillnet is not stationary or anchored to the bottom.
\8\NOAA National Marine Fisheries Service West Coast Region,
``Swordfish Large Mesh Drift Gillnet'' (http://
www.westcoast.fisheries.noaa.gov/fisheries/migratory_species/hms_DGN_
gear.html) (accessed July 18, 2018).
\9\Pacific Fishery Management Council, Current HMS SAFE Report:
Commercial Fisheries Descriptions, May 3, 2018 (https://
www.pcouncil.org/highly-migratory-species/stock-assessment-and-fishery-
evaluation-safe-documents/current-hms-safe-document/commercial-
fisheries-
descriptions/#dgn) (accessed July 20, 2018).
\10\See 2018 Cal.Stat. ch. 844.
\11\NOAA NMFS, Fisheries Off West Coast States; Highly Migratory
Fisheries; California Drift Gillnet Fishery; Implementation of a
Federal Limited Entry Drift Gillnet Permit, 85 83 Federal Register
11146 (Mar. 14, 2018).
\12\NOAA NMFS West Coast Region, Final Regulatory Impact Review and
Final Regulatory Flexibility Analysis for the Protected Species Hard
Caps for the California/Oregon Large-Mesh Drift Gillnet Fishery
Proposed Rule, RIN 0648-BG23, May 2017.
\13\NOAA NMFS West Coast Region, ``Status of Exempted Fishing
Permits'' (http://www.westcoast.fisheries.noaa.gov/fisheries/
migratory_species/status_exempted_permits.html) (accessed February 23,
2018).
\14\NOAA NMFS West Coast Region, ``Innovation in Swordfish Fishery
Fetches a Higher Market Price,'' February 2017 (http://
www.westcoast.fisheries.noaa.gov/stories/2017/
06_02062017_swordfish_efp_tagging.html).
\15\Id.
\16\NOAA NMFS, Fisheries off West Coast States; Highly Migratory
Fisheries; California Drift Gillnet Fishery; Protected Species Hard
Caps for the California/Oregon Large-Mesh Drift Gillnet Fishery, RIN
0648-BG23, 81 Federal Register 70660 (Oct. 1, 2016).
\17\NOAA NMFS, Fisheries off West Coast States; Highly Migratory
Fisheries; California Drift Gillnet Fishery; Protected Species Hard
Caps for the California/Oregon Large-Mesh Drift Gillnet Fishery, RIN
0648-BG23, 82 Federal Register 26902 (June 12, 2017).
\18\NOAA NMFS West Coast Region, ``FAQs: West Coast drift gillnet
(DGN) fishery & protected species,'' June 8, 2017.
\19\Marine Mammal Commission letter to NMFS West Coast Region Re:
NOAA-NMFS-2016-0123. December 28, 2016 (http://www.mmc.gov/wp-content/
uploads/16-12-28Enriques-DGN-Fishery-Hard-Caps-.pdf).
\20\See generally Order Re: Plaintiff's Motion for Summary Judgment
(DE 54) and Defendant's Cross-Motion for Summary Judgment, Oceana Inc.
v. Ross, Case No. 2:17-cv-05146-RGK-JEM (C.D.Cal. 2018).
\21\50 CFR 660.702.
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Summary of Provisions
If enacted, S. 2773, the Driftnet Modernization and Bycatch
Reduction Act, as amended, would do the following:
Direct the Secretary of Commerce to conduct a
transition program for existing driftnet permit
holders to facilitate the adoption of alternative
fishing gear and to make grants to affected fishers
through the Bycatch Reduction Engineering Program.
Prohibit the use of large-scale driftnet fishing
by U.S. vessels within the U.S. EEZ not later than
5 years after the date of enactment of this Act.
Legislative History
S. 2773 was introduced on April 26, 2018, by Senator
Feinstein (for herself and Senators Capito and Harris) and was
referred to the Committee on Commerce, Science, and
Transportation of the Senate. Senators Wicker and Blumenthal
joined as cosponsors on June 21, 2018. On September 5, 2018,
the Committee met in open Executive Session and by voice vote
ordered S. 2773 reported favorably with an amendment (in the
nature of a substitute).
A companion bill, H.R. 5638, was introduced by
Representative Lieu, of California, in the House of
Representatives on April 26, 2018, which was referred to the
Subcommittee on Water, Power and Oceans of the Committee on
Natural Resources of the House of Representatives.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
Driftnet Modernization and Bycatch Reduction Act
S. 2773 would amend the Magnuson-Stevens Fishery
Conservation and Management Act to require the National Oceanic
and Atmospheric Administration (NOAA) to conduct a transition
program to facilitate the phaseout of large-scale driftnet
fishing. The bill would authorize NOAA to provide grants to
operators of driftnet fishing vessels with federal permits to
cover the cost of permitting fees, forfeited fishing gear, and
new alternative fishing gear.
According to NOAA, 56 vessels currently have driftnet
fishing permits. CBO expects that most but not all of those
vessels would apply for grants. Using information from NOAA on
the expected costs to vessels of forfeiting fishing gear and
purchasing alternate gear, CBO estimates that implementing S.
2773 would cost $4 million over the 2019-2023 period. Such
spending would be subject to the appropriation of the necessary
amounts.
Enacting S. 2773 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 2773 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 2773 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA).
The bill would impose a private-sector mandate on certain
fishing operations by limiting the type of nets that may be
used in the drift gillnet (DGN) fishery off of the West Coast.
Current law limits only the driftnets length. S. 2773 would
amend the definition of large-scale driftnet fishing to include
nets with a mesh size that is at least 14 inches. The new
definition would effectively prohibit large driftnets in the
DGN fishery. The cost of the mandate would be any revenue
forgone by fishing operations whose catch decreases as a result
of the new limitation. CBO expects that 56 entities with
driftnet fishing permits would be affected, and the loss of
revenue would be small. As a result, CBO estimates that the
aggregate cost of the mandate would fall well below the annual
threshold established in UMRA for private-sector mandates ($160
million in 2018, adjusted annually for inflation).
The CBO staff contacts for this estimate are Robert Reese
(for federal costs) and Zachary Byrum (for mandates). The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
number of persons covered
S. 2773, as reported, would impose new regulatory
requirements on Federal drift gillnet permit holders, which has
numbered an average of 20 active permitted vessels per year
from 2010 through 2015.
economic impact
Enactment of this legislation is not expected to have a
negative impact on the Nation's economy. Current permit holders
may be able to transition to other fisheries or gear types, but
it is likely at least some of them will go out of business.
privacy
The reported bill is not expected to impact the personal
privacy of individuals.
paperwork
S. 2773 would not create increases in paperwork burdens if
enacted.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title.
This section would provide that the bill may be cited as
the ``Driftnet Modernization and Bycatch Reduction Act.''
Section 2. Definition.
This section would amend section 3(25) of the MSA to define
large-scale driftnet fishing to specify that it also includes
nets with a mesh size of 14 inches or greater, aligning with
the drift gillnet definition in the Code of Federal
Regulations.\21\
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\21\50 CFR 660.702.
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Section 3. Findings and policy.
This section would amend section 206 of the MSA, the
Driftnet Act Amendments of 1990, to add that Congress finds
that large-scale driftnet fishing causes significant
entanglement and mortality of living marine resources. This
section also would amend section 206 to declare that it is the
policy of Congress to prioritize the phase out of large-scale
driftnet fishing in the EEZ and promote development of
alternative gear types that reduce incidental bycatch of living
marine resources.
Section 4. Transition program.
This section would amend section 206 of the MSA to direct
the Secretary of Commerce to conduct a transition program to
facilitate the phase-out of large-scale driftnet fishing and
make affected permit holders eligible to receive grants through
the Bycatch Reduction Engineering Program to cover fees
associated with permit fees, forfeiture of fishing gear, and
purchase of alternative gear with minimal incidental catch of
living marine resources.
Section 5. Exception.
This section would add an exception to section 307 of the
MSA that would prohibit the use of large-scale driftnet fishing
by U.S. vessels within the U.S. EEZ not later than 5 years
after the date of enactment of this Act.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT
[16 U.S.C. 1801 et seq.]
SEC. 3. DEFINITIONS.
[16 U.S.C. 1802]
As used in this Act, unless the context otherwise requires--
(1) The term ``anadromous species'' means species of
fish which spawn in fresh or estuarine waters of the
United States and which migrate to ocean waters.
(2) * * *
(25) The term ``large-scale driftnet fishing'' means
a method of fishing in which a gillnet composed of a
panel or panels of webbing, or a series of such
gillnets, with a total length of two and one-half
kilometers or more, or with a mesh size of 14 inches or
greater, is placed in the water and allowed to drift
with the currents and winds for the purpose of
entangling fish in the webbing.
(26) * * *
SEC. 206. LARGE-SCALE DRIFTNET FISHING.
[16 U.S.C. 1826]
(a) Short Title.--This section incorporates and expands upon
provisions of the Driftnet Impact Monitoring, Assessment, and
Control Act of 1987 and may be cited as the ``Driftnet Act
Amendments of 1990''.
(b) Findings.--The Congress finds that--
(1) the continued widespread use of large-scale
driftnets beyond the exclusive economic zone of any
nation is a destructive fishing practice that poses a
threat to living marine resources of the world's
oceans, including but not limited to the North and
South Pacific Ocean and the Bering Sea;
(2) the use of large-scale driftnets is expanding
into new regions of the world's oceans, including the
Atlantic Ocean and Caribbean Sea;
(3) there is a pressing need for detailed and
reliable information on the number of seabirds, sea
turtles, nontarget fish, and marine mammals that become
entangled and die in actively fished large-scale
driftnets and in large-scale driftnets that are lost,
abandoned, or discarded;
(4) increased efforts, including reliable observer
data and enforcement mechanisms, are needed to monitor,
assess, control, and reduce the adverse impact of
large-scale driftnet fishing on living marine
resources;
(5) the nations of the world have agreed in the
United Nations, through General Assembly Resolution
Numbered 44-225, approved December 22, 1989, by the
General Assembly, that a moratorium should be imposed
by June 30, 1992, on the use of large-scale driftnets
beyond the exclusive economic zone of any nation;
(6) the nations of the South Pacific have agreed to a
moratorium on the use of large-scale driftnets in the
South Pacific through the Convention for the
Prohibition of Fishing with Long Driftnets in the South
Pacific, which was agreed to in Wellington, New
Zealand, on November 29, 1989; [and]
(7) increasing population pressures and new knowledge
of the importance of living marine resources to the
health of the global ecosystem demand that greater
responsibility be exercised by persons fishing or
developing new fisheries beyond the exclusive economic
zone of any nation[.]; and
(8) within the exclusive economic zone, large-scale
driftnet fishing that deploys nets with large mesh
sizes causes significant entanglement and mortality of
living marine resources, including myriad protected
species, despite limitations on the lengths of such
nets.
(c) Policy.--It is declared to be the policy of the Congress
in this section that the United States should--
(1) implement the moratorium called for by the United
Nations General Assembly in Resolution Numbered 44-225;
(2) support the Tarawa Declaration and the Wellington
Convention for the Prohibition of Fishing with Long
Driftnets in the South Pacific; [and]
(3) secure a permanent ban on the use of destructive
fishing practices, and in particular large-scale
driftnets, by persons or vessels fishing beyond the
exclusive economic zone of any nation[.]; and
(4) prioritize the phase out of large-scale driftnet
fishing in the exclusive economic zone and promote the
development and adoption of alternative fishing methods
and gear types that minimize the incidental catch of
living marine resources.
(d) * * *
(i) Fishing Gear Transition Program.--
(1) In general.--The Secretary shall conduct a
transition program to facilitate the phase-out of
large-scale driftnet fishing and adoption of
alternative fishing practices that minimize the
incidental catch of living marine resources.
(2) Permissible uses.--Any permit holder
participating in the transition program under paragraph
(1) is eligible for a grant under section 316, if--
(A) the grant is used only the purpose of
covering--
(i) any fee originally associated
with a permit authorizing participation
in a large-scale driftnet fishery, if
such permit is surrendered for
permanent revocation, and such permit
holder relinquishes any claim
associated with the permit;
(ii) a forfeiture of fishing gear
associated with a permit described in
clause (i); or
(iii) the purchase of alternative
gear with minimal incidental catch of
living marine resources, if the fishery
participant is authorized to continue
fishing using such alternative gears;
and
(B) the Secretary certifies that the permit
authorizing participation has been permanently
revoked and that no new permits will be issued
to authorize such fishing.
SEC. 307. PROHIBITED ACTS.
[16 U.S.C. 1857]
It is unlawful--
(1) for any person--
(A) to violate any provision of this Act or
any regulation or permit issued pursuant to
this Act;
(B) * * *
(M) to engage in large-scale driftnet fishing
that is subject to the jurisdiction of the
United States, including use of a fishing
vessel of the United States to engage in such
fishing beyond the exclusive economic zone of
any nation, unless such large-scale driftnet
fishing--
(i) deploys, within the exclusive
economic zone, a net with a total
length of less than two and one-half
kilometers and a mesh size of 14 inches
or greater; and
(ii) is conducted within 5 years of
the date of enactment of the Driftnet
Modernization and Bycatch Reduction
Act;
(N) to strip pollock of its roe and discard
the flesh of the pollock;
(O) to knowingly and willfully fail to
disclose, or to falsely disclose, any financial
interest as required under section 302(j), or
to knowingly vote on a Council decision in
violation of section 302(j)(7)(A);
(P)(i) to remove any of the fins of a shark
(including the tail) at sea;
(ii) to have custody, control, or
possession of any such fin aboard a
fishing vessel unless it is naturally
attached to the corresponding carcass;
(iii) to transfer any such fin from
one vessel to another vessel at sea, or
to receive any such fin in such
transfer, without the fin naturally
attached to the corresponding carcass;
or
(iv) to land any such fin that is not
naturally attached to the corresponding
carcass, or to land any shark carcass
without such fins naturally attached;
(Q) to import, export, transport, sell,
receive, acquire, or purchase in interstate or
foreign commerce any fish taken, possessed,
transported, or sold in violation of any
foreign law or regulation or any treaty or in
contravention of any binding conservation
measure adopted by an international agreement
or organization to which the United States is a
party; or
(R) to use any fishing vessel to engage in
fishing in Federal or State waters, or on the
high seas or in the waters of another country,
after the Secretary has made a payment to the
owner of that fishing vessel under section
312(b)(2).
For purposes of subparagraph (P), there shall be a
rebuttable presumption that if any shark fin (including
the tail) is found aboard a vessel, other than a
fishing vessel, without being naturally attached to the
corresponding carcass, such fin was transferred in
violation of subparagraph (P)(iii) or that if, after
landing, the total weight of shark fins (including the
tail) landed from any vessel exceeds five percent of
the total weight of shark carcasses landed, such fins
were taken, held, or landed in violation of
subparagraph (P). In such subparagraph, the term
``naturally attached'', with respect to a shark fin,
means attached to the corresponding shark carcass
through some portion of uncut skin.
(2) for any vessel other than a vessel of the United
States, and for the owner or operator of any vessel
other than a vessel of the United States, to engage--
(A) in fishing within the boundaries of any
State, except--
(i) recreational fishing permitted
under section 201(i);
(ii) fish processing permitted under
section 306(c); or
(iii) transshipment at sea of fish or
fish products within the boundaries of
any State in accordance with a permit
approved under section 204(d);
(B) in fishing, except recreational fishing
permitted under section 201(i), within the
exclusive economic zone, or for any anadromous
species or Continental Shelf fishery resources
beyond such zone, unless such fishing is
authorized by, and conducted in accordance
with, a valid and applicable permit issued
pursuant to section 204(b), (c), or (d); or
(C) except as permitted under section 306(c),
in fish processing (as defined in paragraph
(4)(A) of such section) within the internal
waters of a State (as defined in paragraph
(4)(B) of such section);
(3) for any vessel of the United States, and for the
owner or operator of any vessel of the United States,
to transfer at sea directly or indirectly, or attempt
to so transfer at sea, any United States harvested fish
to any foreign fishing vessel, while such foreign
vessel is within the exclusive economic zone or within
the boundaries of any State except to the extent that
the foreign fishing vessel has been permitted under
section 204(d) or section 306(c) to receive such fish;
(4) for any fishing vessel other than a vessel of the
United States to operate, and for the owner or operator
of a fishing vessel other than a vessel of the United
States to operate such vessel, in the exclusive
economic zone or within the boundaries of any State,
if--
(A) all fishing gear on the vessel is not
stored below deck or in an area where it is not
normally used, and not readily available, for
fishing; or
(B) all fishing gear on the vessel which is
not so stored is not secured and covered so as
to render it unusable for fishing;
unless such vessel is authorized to engage in fishing
in the area in which the vessel is operating; and
(5) for any vessel of the United States, and for the
owner or operator of any vessel of the United States,
to engage in fishing in the waters of a foreign nation
in a manner that violates an international fishery
agreement between that nation and the United States
that has been subject to Congressional oversight in the
manner described in section 203, or any regulations
issued to implement such an agreement; except that the
binding provisions of such agreement and implementing
regulations shall have been published in the Federal
Register prior to such violation.
[all]