Second, before the taking of any marine mammal stock may be authorized by a State, there must be a detailed and fully probative procedure to determine that such stock is within its optimum sustainable population range and to determine what level of taking may be permitted without driving the stock below that range; Finally, there must be an effective and enforceable Federal role in overseeing the actual implementation of an approved State program. For the reasons that follow, the proposed amendments before us today fall short of these requirements.

First, under proposed section 109(b)(1), the process for determining the consistency of a proposed State program with the purposes, policies, and goals of the act is neither a public process nor, arguably, any process at all. The provision merely directs the Secretary to return management authority to a State if he "finds" that the State's proposed program meets certain criteria.

How he is to make this finding and what input he may consider from interested persons is nowhere identified. This absence of a process for initially approving a proposed State program stands in stark contrast to the detailed requirements of proposed section 109 (d) applicable to a revocation of that approval.

Before a revocation may become effective, the Secretary is required to provide written notice, a detailed statement on the basis of his proposed action, consultation, and opportunity for a hearing. It is our view that the initial approval and any subsequent revocation should be subject to comparable public procedures and that those procedures must be adequate to insure that the determinations are made fairly and carefully.

Second, and I think most important, it is essential to us that before the taking of any marine mammal stock may be authorized by a State there must be a vigorous fact-finding inquiry to determine that such stock is within its optimum sustainable population range and to determine what level of taking may be permitted without driving the stock below this range.

That procedure is necessary because the determination of the optimum sustainable population of any marine mammal stock establishes the limits within which a management program must function, and is therefore the most critical determination to be made under this act.

The history of marine mammal management clearly shows that because of the great value of marine mammal products and the considerable commercial interest in their direct or incidental taking, there is almost certain to be nearly irresistable pressure to authorize a greater taking than is biologically appropriate.

We believe the most effective means to insure that decisions on taking are based solely on biological considerations is to require that those decisions be made on the basis of an administrative record to which all interested parties can contribute their expert testimony and in which such parties can probe the underlying data and assumptions upon which such testimony is based.

The act as it now reads provides this critical element of biological veracity by requiring that regulations to implement a waiver of the moratorium on the taking of marine mammals be made on the record after opportunity for an agency hearing.

The proposed amendments before us today, in section 109(c), take a partial step in this direction but leave in doubt certain key questions. For example, it is unclear whether a State, in proposing to establishing that a marine mammal stock is within its optimum sustainable population range, and therefore eligible for taking, bears the burden of persuasion on that issue. It should do so. It is likewise unclear whether a State is required to present all of its evidence through live witnesses available for cross-examination. It should be required to do so lest the opportunity for cross-examination provided in proposed section 109(c)(2)(B) be rendered meaningless.

We also have grave difficulty with the formulation in proposed section 109(b)(1)(C)(ii) requiring the State-conducted hearing referred to above to determine both the maximum number of animals that may be taken without reducing the species below its optimum sustainable population and, in the case of subsistence uses in the State of Alaska, the maximum number that may be taken consistent with the maintenance of the species at that level. Unless it can be reasonably anticipated that subsistence uses will exceed the number that would reduce a species below its optimum sustainable population, there is no purpose in making the second determination required here. In our view, any taking which would reduce a species below its optimum level would, in all but the most extraordinary cases, be inconsistent with the maintenance of the species at that level.

Thus, absent such extraordinary circumstances, even subsistence taking in Alaska would not be permitted to deplete a species. A preferable formulation would be to make the requirement that the restriction of Alaskan subsistence uses be consistent with maintaining a population at its optimum level one of the criteria set forth in proposed section 109(e)(1)(A)(iii).

The final important element is the existence of an effective and enforceable Federal role in overseeing the implementation of an approved State program. We generally concur with the requirement set forth in proposed section 109(d)(1) that the Secretary must revoke his approval of a State program whenever he finds that the program is not being implemented or is being implemented in a manner inconsistent with section 109 or the program as approved. We are concerned, however, about being left without remedy if the Secretary abdicates his responsibility to monitor the implementation of State programs and exercise his power of revocation. The factors that fuel our concern are the apparent current eagerness of the Federal Government to divest itself of many responsibilities, uncertainty about the availability of a private right of action in the absence of an express citizen suit provision, and the failure of the Marine Mammal Protection Act to contain such a provision.

Accordingly, we submit that the actions of the Secretary under section 109 should be made expressly subject to judicial review. Mr. BREAUX. Thank you, Mr. Bean.

Next we will hear Mr. Dennis Tiepleman's statement.

Mr. TIEPLEMAN. Mr. Chairman, members of the subcommittee, my name is Dennis Tiepleman.

I am the director of governmental and legislative affairs for the Alaska Federation of Natives. AFN is the statewide organization

formed by 11 of the 13 Native regional corporations established by the Alaska Native Claims Settlement Act and all of the Native regional nonprofit associations.

Together those organizations represent the totality of the approximately 80,000 Native residents of Alaska and, more particularly, the totality of the Alaska Natives who reside on the coast of the North Pacific Ocean and the Bering, Chukchi, and Beaufort Seas who harvest marine mammals. On behalf of AFN, I would like to express our appreciation for the opportunity to testify here today.

For thousands of years the Native residents of the coast of Alaska have harvested marine mammals for their sustenance, and the marine mamal subsistence harvest remains today the basis of the social, cultural, and economic organization of our coastal villages.

In 1972 the Congress enacted the Marine Mammal Protection Act. The most significant component of the act was the establishment of a moratorium on the taking of marine mammals with several narrow exceptions. The most important exception is, of course, hunting by Alaska Natives both for their sustenance and for the purpose of creating and selling authentic Native handicrafts.

Prior to the passage of the act the taking of marine mammals, including taking by Alaska Natives, was regulated by the State of Alaska on the basis of a management program and through a regulatory system at least reasonably proximate to the villages being regulated. When it drafted the Native exemption, the Congress recognized the unfairness of subjecting village people to a Federal regulatory process far removed from Alaska, particularly when there was no guarantee that the Federal Government would in fact implement its own management program.

However, the Congress did recognize that regulation would be appropriate with respect to Native hunting of any species which is "depleted" as that term is defined in the act.

In large measure the Marine Mammal Protection Act has been a success, in fact perhaps too much of a success. During the recent hearings on the reauthorization of the act, considerable testimony was received that certain marine mammal populations have become too bountiful and may be interfering with commercial fishing and with the maintenance of a healthy marine ecosystem. Considerable testimony also was received that changes in the act were necessary to better facilitate the return of management to the States.

At that time the Alaska Federation of Natives committed itself to working with all interested parties to review the act to identify appropriate areas for amendment. And in particular, AFN committed itself to working with the State of Alaska to develop an approach to better facilitate the return of management to the States. And both parties have made considerable progress in that regard. As a condition precedent to the return of management, the State of Alaska must have in place a statute and implementing regulations which insure that subsistence uses of marine mammals will be the priority consumptive uses of the resource.

In addition, the State must have a statute or regulation which insures that no nonsubsistence uses will be authorized during any calendar year unless the State rulemaking authority first determines that such nonsubsistence uses and that the regulation of such uses is intended to the maximum extent practicable to provide economic opportunities for the residents of the rural coastal villages of Alaska who engage in subsistence uses.

The latter condition is of particular importance. Under the definition of subsistence uses, which has been the subject of the discussions with the State, the term "customary trade" has been eliminated from the definition as it appears in the Alaska National Interest Lands Conservation Act.

Consequently, the taking of marine mammals for handicraft purposes, a use currently protected by the Native exemption, is a nonsubsistence use. A number of northwestern villages are dependent upon such nonsubsistence uses, and if they are eliminated or in any way compromised, considerable hardship would result.

Similarly, other nonsubsistence uses such as guiding are of importance to the economic life of rural Alaska.

It should be emphasized that the approach which I have just outlined is reasonable only with respect to State management. As an element of its agreement with the Federal Government for the return of management, the State intends to commit itself to an extensive and well-funded management program.

In addition, through the local fish and game advisory committees, and hopefully through the regional council system, the State is required to establish pursuant to title VIII of the Alaska National Interest Lands Conservation Act, local village people will have a reasonable opportunity to participate in the regulatory process which will so profoundly affect their lives. The same cannot be said for a Federal regulatory system.

If the State of Alaska does not assume management there is no guarantee in these troubled economic times that the Federal Government will fund its own management program in Alaska. With no management program there is no data base. And rulemaking without a data base by its very nature carries a high risk of capriciousness.

More importantly, under the Federal system, village people are not provided a realistic opportunity to participate in the rulemaking process.

Consequently, the Alaska Federation of Natives is committed to the retention of the Native exemption, section 101(b) of the act.

Mr. Chairman, there are a number of other issues, many of a highly technical nature, which should be included in any package of amendments. The Alaska Federation of Natives has worked closely with your staff and with all interested parties to resolve those issues.

We look forward to continuing to work between now and your markup on July 21, to achieve a package of amendments which facilitates the return of management to the State of Alaska consistent with the national interest in the protection of marine mammal populations and the protection of the way of life of the Alaska Native people.

Thank you.

Mr. BREAUX. Thank you, Mr. Tiepleman.

Mr. BREAUX. Mr. Paul Lenzini.

Mr. LENZINI. Mr. Chairman, I am Paul Lenzini, legal counsel to the International Association of Fish and Wildlife Agencies, a voluntary association of public agencies responsible for protection and management of fish and wildlife in North America. The government members of the association include the wildlife agencies of all 50 States.

We have examined the provisions of H.R. 4084 and believe they would do much to improve what we consider to be among the major difficulties of the existing statute. Thus, we support the definition changes of section 1 of the bill which will clean up a good deal of the imprecision in the existing definitions.

With respect to section 5 relating to return of management to States, we believe the bill constitutes a substantial improvement over the existing provisions of section 109. While significant procedural formalities would be imposed on State agencies in making optimum sustainable population determinations, we believe the procedure is workable and places decisionmaking in the hands of the State agencies where these matters rightly belong.

As we read the bill, if the Secretary transfers management authority the State regime would become immediately effective for purposes of protection of the particular species. Taking could be authorized by the State, however, only upon completion by the State of a procedure under which determinations made that the species is within the range of the optimum sustainable population and also of the maximum number of animals that could be taken without moving the species below the OSP range.

After this determination is once made, it would not have to be repeated annually, as we understand it, but would be required if new evidence indicated that adjustments were required in the earlier determination.

We also note that regardless of the return of management to a State a Federal permit procedure would continue to govern taking for scientific research or public display subject to State disapproval of removal of live animals. This seems a careful accommodation of Federal and State interests if it is not intended to include research by the State agency itself.

California tags sea otters in its population studies and if management were returned the State should be authorized to undertake such research without the need for a Federal permit and also without the need for a formal OSP determination for which data may not be available. Similarly, under existing law, the term "take" is broadly defined to include "harassing." Removal or frightening of nuisance animals is not permissible under the act. If the amendments set forth in H.R. 4084 were enacted and management returned to a State, it would continue to be unlawful for State wildlife personnel to attempt to remove or chase nuisance animals without going through a formal OSP determination. This is in our view unduly rigid and ought to be addressed.

Finally, we note that amended section 109(h) of H.R. 4084 would amend existing law to authorize the Secretary to make grants to States for the purpose of developing programs as well as for the