The point of the clubbing as in any human slaughter is to render the animal unconscious. It is the act of actual exsanguination where they stick the heart, and it bleeds out, that you cause death.

Our problem with this hunt was not so much that there were multiple blows, but the time lapse between blows. The first stunning may not do it, and unless it is done immediately, it does not necessarily cause unconsciousness, and there is a period of time where the animal may still be conscious.

Mrs. Pressman said that when they were there, the folks doing the clubbing suddenly understood they wanted them to club them more than once and a bashing match, more or less resulted so that it became clear that they really didn't understand the total process of what they were doing. We feel there must be a veterinarian attending these kinds of hunts which we don't see happening in this particular one. I might add that the idea that we are not doing as much as we can for these seals by not importing their skins is fallacious. The fact is we talked to our contacts in South Africa last week, and at last year's hunt, they told us, only 65,000 animals were killed.

That means to me the hunt is declining. That means that we are having some impact. We have groups in South Africa starting to get active, and groups in Norway who we have been in contact with, and we believe the processing firms there are coming more and more under the scrutiny of the people that are growing more interested in protecting marine mammals. The Norwegian fur industry is also being watched because they process the Harp seals and the South African seals. There is tremendous growth among their societies to do something about that, so I think on the whole, not just in the United States, that we are having an impact in trying to reduce the number of baby seals killed.

Now, hopefully, we are. Finally, I can't imagine why South Africa would go backward in its attempt to have a humane kill, but perhaps they have. I don't know.

Mr. OBERSTAR. Thank you very much.

MS. FORKAN. The person that we were in touch with in 1977 saw a major kill going on, in September 27 was when he was in Luderitz, so this was very late in the season, and there was an enormous killing going on at that late date.

Mr. BREAUX. Mr. Sunia.

Mr. SUNIA. Nothing.

Mr. BREAUX. Mr. Bowles, would you explain again the type of equipment that is used in the seismic work? We are not using the old dynamite explosions, but now using sound sonar, or compressed air, or does the method you use create a shock or concussion-type of effect?

Mr. BOWLES. What we are using is called a vibrator, and what essentially is a very large truck with a machine that forces parts to vibrate against the surface of the ice, the result of which there is an energy wave created which then responds back according to what is in the bottom of the ocean.

Mr. BREAUX. It is not a compressed air-type of operation?

Mr. BOWLES. The last 2 or 3 years of operation, we have been using a vibrator. And we intend to use the vibrator again this

operation season, and it is not a, as you say, a concussion-type or under-ice-type of energy source.

Mr. BREAUX. Has the scientific community commented on the new methodology, as far as the potential effect on marine mammals?

Mr. BOWLES. Not that I am aware of, no, sir.

Mr. BREAUX. OK, we appreciate your testimony. It is a tough, complicated issue, a lot of emotion attached to it, but you presented your case very well, and we thank you for that.

STATEMENTS OF JAMES P. WALSH, ACTING ADMINISTRATOR, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE, ACCOMPANIED BY DICK ROE, ACTING DIRECTOR, OFFICE OF MARINE MAMMALS AND ENDANGERED SPECIES, NATIONAL MARINE FISHERIES SERV. ICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; DR. F. EUGENE HESTER, ACTING DEPUTY DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY DONALD J. BARRY, ASSISTANT SOLICITOR, FISH AND WILDLIFE, DEPARTMENT OF THE INTERIOR; JOHN R. TWISS, JR., EXECUTIVE DIRECTOR, MARINE MAMMAL COMMISSION, ACCOMPANIED BY ROBERT EISENBUD, GENERAL COUNSEL, MARINE MAMMAL COMMISSION; AND DR. ROBERT J. HOFMAN, SCIENTIFIC PROGRAM DIRECTOR, MARINE MAMMAL COMMISSION

Mr. BREAUX. Our final panel will be the administration witnesses, and we welcome Mr. James Walsh, Acting Administrator for NOAA, Dr. Eugene Hester, who is Acting Deputy Director, U.S. Fish and Wildlife Service, and Mr. John Twiss, who is Executive Director of the Marine Mammal Commission.

Gentlemen, if you would take your places at the witness table, we are pleased to receive your testimony.

Mr. Walsh and Dr. Hester, I note that you are the acting heads of the two most important agencies that this committee has to deal with.

Do you have any suggestions as to when you will no longer be acting and perhaps have those positions filled?

Mr. WALSH. You want that in seconds or minutes?

Mr. BREAUX. That long, sir?

Mr. WALSH. On Wednesday we expect that the new administrator of NOAA will be here and sworn in shortly thereafter and will assume the duties of Acting Administrator at which time I will remain as the deputy administrator.

Mr. BREAUX. Dr. Hester, what about Fish and Wildlife Service, anyone been nominated yet?

Dr. HESTER. No one has been nominated yet.

Mr. BREAUX. Ok, Mr. Walsh, you want to go first?

Mr. WALSH. It is a pleasure to be here and to discuss the proposed amendment to the Marine Mammal Protection Act in H.R. 4084.

Let me say we are providing to you our preliminary views of the amendments. We have had the opportunity to review the bill for about 48 hours.

There are a number of things I think I can address today on a preliminary basis, but we, of course, would like to have the opportunity to review the statute in a little more depth.

We generally agree with the thrust of the legislation, and believe that some amendments are needed, although I wish to point out that the Marine Mammal Protection Act has been quite successful in many ways.

We have learned a lot about the animals we are charged with conserving, although not everything we would like to know. There are, however, difficulties with administration of the act. The amendments will help to clarify the terms of the act, and improve our efficiency in carrying out that statutory program.

There are long-standing issues that are associated with this legislation, including the incidental take of porpoises in the tuna fishery, minor inadvertent takes from other activities, the difficult process for return of State management authority under the statute and the question of subsistence use.

This bill will help to clarify, we believe, some other aspects of the legislation, including the carrying capacity issue, and the act's management standard.

We are concerned, however, that some of the provisions might confuse rather than simplify all the procedures, and we recommend that any changes in this act facilitate our administration, while assuring that the basic principles are achieved.

Let me first turn to the issue of the carrying capacity.

The legislation proposes changes in definitions and other technical adjustments which we believe are both helpful and constructive.

Deletion of the word "optimum" as a modifier of the term "carrying capacity," will more closely aline this term with the scientific definition.

In addition, the bill's new definition of "depletion" also correlates with our administrative interpretation of optimum sustainable population.

Let me now address the question of incidental take in the tuna fishery.

The proposed amendments to section 101(a)(2) retain the zero mortality or serious injury rate goal, but provide that with respect to the yellowfin tuna purse seine operations, continued application of the best marine mammal safety techniques and equipment that are economically and technologically practicable shall satisfy this goal.

These amendments are consistent with the recent decision by the Administrator of NOAA setting quotas on the incidental take of marine mammals in the yellowfin tuna purse seine fishery. That decision recognized the 99-percent release rate of porpoise achieved by the industry.

Much of this success is the result of the Marine Mammal Protection Act and the hard work of the Government and industry in this area. We think perhaps we can reduce porpoise mortality even further. However, we have got to recognize technological limits, and we think this amendment takes that into account.

I would like to discuss next the issue of minor inadvertent takings. Obviously, the act provides exceptions for scientific research,

public display, native subsistence, and commercial fishing. Of course, these must be managed in a manner that is fully consistent with the provisions of the act, However, these are not the only activities which encounter marine mammals. In addition, there are activities of all types which may involve what we refer to as minor inadvertent encounters which have created a great burden for us in terms of enforcement. Any statute that provides provisions that cannot be effectively administered, or do not create the proper sense of conduct on the part of those affected by statute, run the risk of not being observed.

We feel that it may be possible to give some discretion to the Federal Government with regard to these kinds of activities.

I would only note, as you have noted with the last witneses, that the definition of a small amount is something that is of concern, and may require some additional elaboration, either in the statute or in the record, so that the criteria on which these decisions are based can guide administrative action.

In terms of returning management authority to the State, let me state very clearly that the administration supports the transfer of current Federal programs to State and local governments wherever possible in the belief that local decisionmaking will be less costly and more responsive to our citizens' concerns.

There is no reason, we believe, in and of itself that the goals of this act cannot be met effectively by State government, as long as they are stated very clearly, and there is the responsibility on the part of the State to observe policies of the statute. We believe that the amendment you have framed gets at this problem.

I would only note, however, Mr. Chairman, that there are what we believe to be some serious problems with regard to the amendment as presently drafted.

For example, Alaska will be able to manage marine mammals within its own jurisdiction with regard to its own citizens, except with respect to things such as public display and research permits. In addition, the Federal Government will continue to manage marine mammals in the fishery conservation zone, from 3 to 200 miles.

We are therefore presented with the possibility that a decision by the State as to the size of a population, in regard to the same stock which now will be shared by both the Federal and the State government, could be at variance determination. We could have a difference of opinion with regard to the size of a stock and, therefore, how much is allowed to be taken from the same stock, as determined by the State and the Federal Government.

We recommend that the committee give serious consideration to possible procedures, short of the revocation provisions in the bill, that would allow for consultation between the State and Federal Government in order to avoid the possibility that the Federal Government would say one thing about what an optimum sustainable population is, and the State would say another thing.

I think this possibility could very well lead to some real difficulties in administering the act, and that is one thing we wish to avoid.

Mr. Chairman, I will leave the other comments to the other Federal agencies. That concludes my statement, and I will be glad to answer any questions.

Mr. Hester.

[The statement of James P. Walsh follows:]

STATEMENT OF JAMES P. WALSH, ACTING ADMINISTRATOR, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

Mr. Chairman and members of the subcommittee, I am pleased to be here today to offer the views of the Department of Commerce on proposed amendments to the Marine Mammal Protection Act, H.R. 4084.

During the past 10 years this Act has provided a framework for the protection and conservation of marine mammal populations, within the jurisdiction of the United States. In addition, one of the goals of this legislation has been to extend the policies contained in the Act through various international agreements. Our work in the protection of the great whales, for example, has been instrumental in the reduction of commercial whaling quotas established by the International Whaling Commission, from 46,000 in 1972 to less than 15,000 in 1980. The loss of porpoise in the tuna purse seine fishery in the eastern tropical Pacific has dramatically declined to less than 4 percent of 1972 levels. Our study of the tuna/porpoise relationship and the co-operation of the tuna industry has resulted in what may be the most notable success in marine mammal conservation since passage of the Act. We now know much more about the animals we are charged with conserving, and are beginning to understand the complex interactions among them, other living marine resources, and man.

Notwithstanding these accomplishments, we recognize that administration of the Act can be improved in several areas. We are pleased to note that some of the amendments contained in H.R. 4084 will help to clarify the terms of this Act and should increase our administrative efficiency.

H.R. 4084 addresses long standing issues regarding incidental take of marine mammals in the tuna fishery, minor inadvertent takes from other activities, the difficult process for return of State management authority and the question of subsistence use. This Bill also clarifies the relationship between carrying capacity of the habitat and the Act's management standard, optimum sustainable population (OSP). Certain provisions of H.R. 4084 may, however, serve to confuse rather than simplify administrative procedures. We recommend that any changes made to this Act facilitate improvements in our management of these animal populations, while assuring that the basic policies of the Act can be achieved.

Mr. Chairman, I would first like to briefly discuss several general areas addressed in H.R. 4084, before answering any questions you may have on specific topics of interest to the Committee.

1. CARRYING CAPACITY

H.R. 4084 proposes changes in definitions and other technical adjustments which I believe are both helpful and constructive. Deletion of the word "optimum" as a modifier of the term "carrying capacity", for example, more closely aligns this term with the accepted scientific definition. In addition, H.R. 4084's new definition of depletion also correlates with our administrative interpretation of OSP.

The use of the term "optimum" in association with "carrying capacity" has been a source of confusion, and the basis of lengthy legal and scientific debate. In our rulemakings on authorized levels of incidental take in major fisheries, we have attempted to identify the population level which pre-existed the fishery, on the theory that the natural, unexploited population was the best indication of the optimum carrying capacity of the environment. Unfortunately, far more attention has been focused on what the population was at some point in history than on what the impact of a certain level of take would be on the current population. H.R. 4084 will allow us to manage populations in terms of present environmental conditions and eliminate involved and difficult back calculations to determine past population sizes.

2. INCIDENTAL TAKE IN THE TUNA FISHERY

The proposed amendments to Section 101(a)(2) retain the zero mortality or serious injury rate goal but provide that with respect to the yellowfin tuna purse seine operations, continued application of the best marine mammal safety techniques and equipment that are economically and technologically practicable shall satisfy this