goal. These amendments are consistent with the recent decision by the Administrator of NOAA setting quotas on the incidental take of marine mammals by the yellowfin tuna purse seine fishery. That decision recognized the 99 percent release rate of porpoise achieved by the industry. Although the goal of the Act would be to reduce propoise mortality even further, I recognize there are limits of technological practicability beyond which the industry may suffer severe economic distress. Limitations imposed by the Act are more acute given the present rising costs of operation and decreasing access to the tuna resource now facing that industry. We believe the United States tuna industry is meeting the Act's immediate goal of near zero mortality from its purse seine operations. H.R. 4084 serves to recognize this substantial achievement.

3. MINOR, INADVERTENT TAKINGS

The Act as presently written contains exemptions for scientific research, public display, native subsistence, and commercial fishing. These, however, are not the only activities which encounter marine mammals. The amendments broaden the exemptions to include these activities by allowing the Secretary to authorize small numbers of takings when the impact on the species would be minor and the encounter with the marine mammals inadvertent. Our enforcement capabilities to detect such violations of the present version of the Act are limited and it is doubtful that prosecution of inadvertent takings accomplishes much in terms of marine mammal conservation. Other kinds of taking of a limited nature may be encountered in small fisheries, non-commercial fish hatchery operations, and in coastal or offshore energy development.

While we believe the level of individual takes by small fisheries and other activities is relatively small, the unreported take may be signifiant in the aggregate. To get better information on these kidns of interactions, the amendments provide that the Secretary may require reports on such taking as deemed necessary to determine the impacts on affected stocks.

4. RETURN OF STATE MANAGEMENT AUTHORITY

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 why, for example, the goals of the Act cannot be met as effectively, if not more effectively, through State management of marine mammal populations. The Act, however, preempted existing State authority and, as presently written, contains a cumbersome procedure which must be employed before management of marine mammals can be returned. Only Alaska, which has the greatest experience of any State in managing marine mammals, has made efforts to have marine mammal management authority returned to it. As a result of the expense of protracted administrative hearings and the Federal Court decision in People of Togiak v. United States, Alaska abandoned its effort in 1979.

The Department of Commerce supports the policy contained in H.R. 4084 that Alaska, and other States with similar management capabilities manage their marine mammal populations provided that they do so consistent with a uniform national standard of the Act. We are concerned that H.R. 4084, as presently drafted, does not assure that management standards will be uniformly applied by the various management agencies.

For example, if a stock or species which occurs both within the territorial sea and the FCZ is returned to State management, the amendments contain no mechanism for assuring that the Federal and State governments arrive at the same calculation of OSP and allowable take. In addition, once allowable take is determined, the amendments do not address how such take will be allocated between those taking marine mammals under Federal jurisdiction and those taking under State jurisdiction.

5. SUBSISTENCE USES

One of the factors which has complicated Alaska's efforts to resume management of its marine mammal populations is the present wording of the native exemption from the Act which limits the exemption to Eskimos, Aleuts, and Indians. The Togiak decision held that Alaska could not regulate native takings of marine mammals inconsistent with this exemption. Alaska has suggested that, because the Act exemption conflicts with the State Constitution, it will not request return of management unless the native exemption is changed to remove the racially-based classification. The State has suggested replacement of the native exemption with an exemption for all rural Alaskans whose subsistence lifestyle is closely dependent on

marine mammals for food, clothing, shelter, tools, transportation, and handicrafts. The Department of Commerce endorses this change.

Mr. Chairman, this concludes my prepared statement. I thank the Committee for the opportunity to appear here today and I welcome any questions you may have. Dr. HESTER. Mr. Chairman, I appreciate this opportunity to comment on H.R. 4084, proposed amendments to the Marine Mammal Protection Act of 1972.

My testimony today will be confined to general observations on the legislation introduced on July 9, 1981.

The goal of the Department of the Interior is to return management of marine mammals to those States willing and capable of undertaking this responsibility. This is not a change in Department policy; the Fish and Wildlife Service began work with the State of Alaska to return management of marine mammals soon after the act was passed.

Management responsibility for the walrus was transferred to the State in 1976 and the process to return management of the sea otter and polar bear was substantially completed when a Federal court held in 1979 that State regulations restricting Native taking were preempted by section 101(b) which exempts Natives from the

act.

Because the State of Alaska cannot apply different wildlife management standards to different ethnic groups, this decision was instrumental in causing it to return management of walrus to the Department of the Interior in July 1979 and to decline management of the other species.

Provision for priority use of marine mammals based on subsistence need with authority to regulate that use before marine mammal populations are depleted, as envisioned in H.R. 4084, should make it possible for Alaska to assume management of the marine mammals associated with their State. We support this concept.

The Department also supports your efforts to streamline the process by which management is returned to a State, particularly the provision for a State to waive the moratorium on the taking of marine mammals. Under current law, waiving the moratorium is a Federal responsibility, even after management is returned to a State. This additional Federal step is unnecessary and could obstruct the ability of a State agency to be responsive to the changing needs of the marine mammal resource and interests of the public, particularly since Federal action to waive the moratorium must be preceded by a formal hearing on the record before an Administrative law judge (ALJ). In the case of proceedings to waive the moratorium on nine species in Alaska prior to returning management to the State, the ALJ process took over a year to complete. Furthermore, a new ALJ hearing would probably have been required to make amendments to the waiver regulations which may not have been anticipated and covered in the record of the original proceedings.

The proposed changes in definitions and other technical amendments will also improve administration of the act. For example, the amendment to strike optimum carrying capacity (OCC) will eliminate confusion occasioned by use of both OCC and optimum sustainable population (OSP).

In particular, our enforcement effort will be assisted with the language contained in your amendments clarifying that sale of marine mammals or marine mammal products, except as specifically authorized under the act, is prohibited.

Let me reiterate the Department's strong support for your efforts to rectify the problems which have complicated return of marine mammal management to the State of Alaska and to streamline this return process.

These provisions are especially important because we note that, under your bill, as long as the Department of the Interior is responsible for managing a marine mammal species or population stock, certain provisions of the current act which are troublesome to us will remain essentially unchanged.

Mr. Chairman, much has been alleged about a lack of Federal management of marine mammals in Alaska. The Fish and Wildlife Service does operate a program of marine mammal research, law enforcement and management in that State.

But as I pointed out in my testimony before the subcommittee earlier this year, the act, in fact, prohibits us from regulating the only harvest legally occurring in Alaska at this time, nonwasteful harvest by Natives for subsistence or handicraft, until after a marine mammal species or stock has become depleted, and then only following lengthy administrative law judge hearings.

To wait until populations fall to depleted levels before regulating take or instituting other needed management measures is inimical to sound wildlife resource conservation practices and the purposes of the Marine Mammal Protection Act. Recovery of most wildlife populations, once depleted, is not easily accomplished and will require more stringent restrictions than had action been taken earlier to prevent depletion. Proper management which may require limits on the age, sex, number, and location of the animals to be harvested, for example, should be used to prevent depletion, not as a cure for depletion. History abounds with examples where, in order to allow a wildlife population to recover, all taking had to be prohibited for long periods of time. Prudent regulation of the harvest can assure the legitimate and continuing use of wildlife stocks compatible with maintenance of desired population levels. This could more effectively be implemented through informal notice and comment rulemaking, which also provides for public participation and is much quicker, cheaper and more flexible than hearings on the record before an ALJ.

Our ability to monitor the size, composition, location or sale of Native harvests is subject to debate. The Service has several efforts underway to determine overall marine mammal population levels in Alaska. Aerial population surveys of the walrus have been conducted, one by flying a series of transects over 2,000 miles of ice and water to obtain a minimum estimate of the population and another to obtain an index of walrus mortality. We are attempting to determine the polar bear population size by mark/recapture methods and to identify polar bear stocks by following the movements of individual bears through radio and satellite telemetry. The effectiveness of these efforts is substantially reduced, however, if we cannot develop complete and accurate data indicating the level of harvest. Without these data, it is very difficult, if not

impossible, to determine whether marine mammal populations have fallen to depleted levels.

We are particularly concerned about the status of the polar bear. Before 1972, the State of Alaska had prohibited the taking of female bears with cubs. Under the act as it is currently written, the Federal Government may not apply this fundamental conservation technique to the Native take until population stocks are depleted, and there is reason for concern about the age/sex distribution of the kill. Preliminary population modeling work on polar bears indicates what commonsense tells us: That, if the magnitude of the take is sufficiently great, indiscriminate harvest can substantially reduce population levels. In the absence of clear authority to require that the harvest be reported, Service personnel have been placed in primary polar bear harvesting villages and we have begun a voluntary hide and skull sealing program; however, these limited measures do not provide a wholly accurate picture of the number of animals being removed from the polar bear population. Moreover, there appears to be widespread illegal commercialization of marine mammal parts and products. In February 1981, following an 11-month investigation into the illegal trade of marine mammals, our law enforcement agents in Alaska and four other States seized some 10,000 pounds of fresh, raw walrus ivory worth nearly one-half million dollars. Since then, several cases involving the sale of sea otter hides to undercover FWS agents have occurred. The hides are selling for $1,000 apiece and are apparently being shipped to the Orient. Without clear authority to monitor the legal sale of these products, there is no enforcement alternative to expensive and random undercover operations.

This legislation, with its emphasis on returning management to the States, is certainly a step in the right direction. Express authority to require marking, tagging, or other measures to obtain a more accurate report of the Native take will assist us in gathering information on the status of marine mammal species in Alaska. We support this provision. However, the other problems which I have outlined will remain unresolved until a final State marine mammal management plan is in place in Alaska and will be reactivated if management is returned to the Federal Government.

We would be glad to work with the subcommittee and other interested parties regarding these matters, as well as the difficult problem concerning management in waters beyond State jurisdic

tion.

That concludes my prepared statement, Mr. Chairman. I will be pleased to answer any questions which you or other subcommittee members might have.

Mr. Chairman, I might mention that I have with me Don Barry, the Department's assistant solicitor for Fish and Wildlife.

Mr. BREAUX. Thank you, Mr. Hester.

Next is John Twiss.

Mr. Twiss. Thank you, Mr. Chairman.

With your permission, I would like to submit my whole statement for the record and comment briefly now.

I am pleased to appear before you today. With me are Bob Hofman, our Scientific Program Director, and Bob Eisenbud, our General Counsel, to whom we are particularly grateful for his hard

work on these issues over the last several months. It is he who has also had the pleasure of working most closely with your staff and other interested parties in efforts to resolve the various issues identified during the April hearing.

As you know, Douglas Chapman, our Chairman, would have liked to have been here but finds himself unavoidably detained in England by pressing issues associated with the International Whaling Commission meeting.

The cooperative efforts made since April have, I believe, resulted in substantial agreement on desirable approaches to resolving issues. The Commission is pleased to support the provisions of the bill which reflect those approaches. That substantial agreement has been reached is a credit to this committee, its staff, and the interested parties who have all worked so hard to achieve it.

I shall not comment on parts of the bill which we support, but rather limit my comments to those parts about which we have questions or suggestions for modification and clarification.

Section (2)(1)(C) of the bill would provide for the issuance of permits for taking small numbers of marine mammals that are not depleted provided that permittees comply with reporting requirements. We suggest modifying this section to permit the Secretary to publish authorization for U.S. fishermen, for example, to take marine mammals incidental to fishing operations if such taking is unintentional.

Among other things, the section should provide that such authorization be granted only if it has been determined that the cumulative effects will not have a significant adverse impact on the affected species or population. Also, it should provide that authorized persons comply with guidelines concerning methods of taking and participate in a cooperative mechanism for monitoring levels of take.

We believe that the Secretary should establish such cooperative mechanisms with interested States, fishery management councils, fishing organizations, or other appropriate groups. We also suggest that there be some method for the Secretary to modify or revoke the authorization if he determines that the taking is having a significant adverse impact, or that the cooperative mechanism is not working, or that the purposes of the act will be more effectively met under other provisions.

Section 2(2) of the bill amends section 101(b), the native exemption. We suggest inserting the words "Except as provided in section 109" at the beginning of the section to clarify the meaning and insure that it is understood that the exemption would not apply to taking by natives of marine mammals subject to State management under an approved management program.

Section 3(a)(2)(A) of the bill would change the prohibition on importing marine mammals that were nursing or less than 8 months old when taken, whichever occurs later, to a prohibition on importing animals either dependent on nursing or less than 6 months old when taken, whichever occurs later.

We question whether it will be possible to determine that nursing pups are in fact not "dependent on nursing". Also, we question the need for this amendment since information provided by South African representatives in earlier hearings indicated that all but a