[Senate Report 116-166]
[From the U.S. Government Publishing Office]
Calendar No. 316
116th Congress } { Report
SENATE
1st Session } { 116-166
_______________________________________________________________________
DRIFTNET MODERNIZATION AND BYCATCH REDUCTION ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 906
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 5, 2019.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
99-010 WASHINGTON : 2019
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred sixteenth congress
first session
ROGER F. WICKER, Mississippi, Chairman
JOHN THUNE, South Dakota MARIA CANTWELL, Washington
ROY BLUNT, Missouri AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska TOM UDALL, New Mexico
CORY GARDNER, Colorado GARY C. PETERS, Michigan
MARSHA BLACKBURN, Tennessee TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West Virginia TAMMY DUCKWORTH, Illinois
MIKE LEE, Utah JON TESTER, Montana
RON JOHNSON, Wisconsin KYRSTEN SINEMA, Arizona
TODD C. YOUNG, Indiana JACKY ROSEN, Nevada
RICK SCOTT, Florida
John Keast, Staff Director
David Strickland, Minority Staff Director
Calendar No. 316
116th Congress } { Report
SENATE
1st Session } { 116-166
======================================================================
DRIFTNET MODERNIZATION AND BYCATCH REDUCTION ACT
_______
December 5, 2019.--Ordered to be printed
_______
Mr. Wicker, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 906]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 906) to improve the management
of driftnet fishing, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 906 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, mako shark, and opah (also
known as moonfish).
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\1\16 U.S.C. 1802(25).
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BYCATCH ISSUES IN THE DRIFT GILLNET FISHERY
The term ``bycatch'' refers to species that are harvested
in a fishery, but 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 (MMPA) 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\
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\2\16 U.S.C. 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.
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PERMITTING HISTORY
The MSA prohibits large-scale driftnet fishing in areas
subject to United States jurisdiction 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 (NOAA), the Pacific Fishery Management Council
(PFMC), and the State of California. The fishery operates under
a limited entry permit system\8\ with mandatory gear
requirements and time-area closures. Federal management of the
West Coast drift gillnet fishery occurs under the PFMC's Highly
Migratory Species (HMS) Fishery Management Plan (FMP). NOAA
partially approved the HMS FMP in 2004, but did not establish
Federal permission of the draft gillnet fishery until 2018.
Prior to 2018, the West Coast drift gillnet fishery permits
were only issued by States.
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\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. 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).
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Originally, the Oregon Fish and Wildlife Commission managed
the drift gillnet fishery for swordfish under the Developmental
Fisheries Program. However, when Oregon removed swordfish from
the program in 2009, the State banned permits to fish with
drift gillnet gear off Oregon's coast, leaving California as
the only State permitting the drift gillnet fishery.\9\ In
September 2018, California enacted legislation to phase out the
use of large-mesh drift gillnets and compensate permit
holders--$10,000 for permits and $100,000 for gear.\10\ Under
California law, a State permit is required to land swordfish
caught with drift gillnets, even if the swordfish are caught in
Federal waters. Thus, swordfish caught legally under Federal
law are made illegal by California's State laws.
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\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.
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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 the drift gillnet fishery under MSA
authority. In March 2018, the NOAA National Marine Fisheries
Service (NMFS) issued a final rule 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. However, as noted
above, recent changes in California law may render a Federal
permit unusable.
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\11\NOAA NMFS, Fisheries Off West Coast States; Highly Migratory
Fisheries; California Drift Gillnet Fishery; Implementation of a
Federal Limited Entry Drift Gillnet Permit, 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.
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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 not yet known if this
would translate to higher market value for all permitted
fishers if the entire fishery were to transition to deep-set
buoy gear.
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\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.
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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 MMPA.\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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\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 (October 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).
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Summary of Provisions
If enacted, S. 906, the Driftnet Modernization and Bycatch
Reduction Act, 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 authorize grants to affected fishers.
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. 906, the Driftnet Modernization and Bycatch Reduction
Act, was introduced on March 27, 2019, by Senator Feinstein
(for herself and Senator Capito) and was referred to the
Committee on Commerce, Science, and Transportation of the
Senate. Senators Blumenthal, Coons, and Harris are additional
cosponsors. On April 3, 2019, the Committee met in open
Executive Session and, by voice vote, ordered S. 906 reported
favorably with an amendment (in the nature of a substitute).
Senator Sullivan offered an amendment that was adopted by voice
vote to permit the Secretary of Commerce to collect fees from
charter vessel operators who harvest Pacific halibut.
A companion bill, H.R. 1979, was introduced on March 28,
2019, by Representative Lieu (for himself and Representative
Fitzpatrick) and was referred to the Committee on Natural
Resources of the House of Representatives. There are six
additional cosponsors.
In the 115th Congress, 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 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 to S. 2773, H.R. 5638, was introduced on
April 26, 2018, by Representative Lieu (for himself) and was
referred to the Subcommittee on Water, Power and Oceans of the
Committee on Natural Resources of the House of Representatives.
Representatives Fitzpatrick and Lofgren joined as cosponsors.
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:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. 906 would 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. Those grants
would cover the cost of permits, the forfeiture of existing
fishing gear, and the acquisition of alternative new fishing
gear. The bill also would allow NOAA to implement fees on
charter vessels that harvest Pacific halibut in certain parts
of the northern Pacific Ocean.
According to NOAA, 56 vessels currently have driftnet
fishing permits. CBO expects that most but not all of those
vessels would apply for the grants authorized by S. 906. Using
information from NOAA about the expected costs to reimburse
fishers for the forfeited fishing gear and to purchase
alternate gear, CBO estimates that implementing S. 906 would
cost $4 million over the 2019-2024 period. Such spending would
be subject to availability of appropriated funds.
Enacting S. 906 also could affect revenues and associated
direct spending because the bill would authorize NOAA to levy
additional fees on certain charter vessels that harvest Pacific
halibut. Those fees would be classified as revenues and could
be spent without further appropriation to fund halibut
conservation and research, administrative costs for the
Recreational Quota Entity program, and to buy halibut quota
shares from the International Pacific Halibut Commission.
Using information from NOAA on the number of vessels that
could be charged fees under the bill, CBO estimates that any
additional fees collected would not be significant over the
2019-2029 period. Moreover, because any fees collected would
probably be spent soon thereafter, CBO estimates the net effect
on the deficit would be negligible.
S. 906 would impose private-sector mandates as defined in
the Unfunded Mandates Reform Act (UMRA) on certain fishing
operations. CBO estimates that the aggregate cost to comply
with the bill's requirements would fall below the annual
threshold established in UMRA for private-sector mandates ($164
million in 2019, adjusted annually for inflation).
The bill would limit the type of nets that may be used in
the drift gillnet (DGN) fishery off of the West Coast. Current
law only limits driftnet length. S. 906 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 the use of large driftnets in the
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 fewer than 40 entities would
be affected, and the loss of revenue would be small.
The bill also would require charter operators to pay fees
on vessels that harvest Pacific halibut. Using information from
NOAA, CBO expects those fee collections would be small.
S. 906 contains no intergovernmental mandates as defined in
UMRA.
The CBO staff contacts for this estimate are Robert Reese
(for federal costs) and Susan Willie (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. 906, 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
some fishermen may not choose to transition to the new gear
type. Existing California law may end the fishery, even in the
absence of Federal action.
privacy
The reported bill is not expected to impact the personal
privacy of individuals.
paperwork
S. 906 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.
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.
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. 1802(25)]
SEC. 3. DEFINITIONS.
As used in this Act, unless the context otherwise
requires--
(1) * * *
(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.
* * * * * * *
[16 U.S.C. 1826(b)]
SEC. 206. LARGE-SCALE DRIFTNET FISHING.
(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) * * *
(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.--During the 5-year period beginning
on the date of enactment of the Driftnet Modernization
and Bycatch Reduction Act, 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, and shall
award grants to eligible permit holders who participate
in the program.
(2) Permissible uses.--Any permit holder receiving a
grant under paragraph (1) may use such funds only for
the purpose of covering--
(A) 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;
(B) a forfeiture of fishing gear associated
with a permit described in subparagraph (A); or
(C) 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.
(3) Certification.--The Secretary shall certify that,
with respect to each participant in the program under
this subsection, any permit authorizing participation
in a large-scale driftnet fishery has been permanently
revoked and that no new permits will be issued to
authorize such fishing.
* * * * * * *
[16 U.S.C. 1857(1)(M)]
SEC. 307. PROHIBITED ACTS.
It is unlawful--
(1) for any person--
(A) * * *
(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;
* * * * * * *
[all]