46 



Mr. Eisenbdd. Let mo provide the details for the record, it has 

 been an ongoing discussion for at leasl a year now. I will have to look 

 back to get the exact date. 



[The following was submitted:] 



United States Department of Commerce 



National Oceanic and Atmospheric Administration 



National Marine Fisheries Service 



Washington, D.C. 



In Re : Proposed Regulations to Govern the Taking of Marine Mammals, and 

 Related Matters Incidental to Commercial Fishing Operations, Docket No. 

 MMPAH No. 2-1976. 



Exceptions of the Marine Mammal Commission 



28 January 1977. 



These Exceptions are snhmitted on hehalf of the Marine Mammal Commis- 

 sion in response to the Recommended Decision of Administrative Law Judge 

 Frank W. Yanderheyden and in accordance with Footnote 1 of that Decision 



The Recommended Decision reflects a careful and skillful review of the law 

 and facts in this complex, expedited proceeding. Those Exceptions which sig- 

 nificantly affect the ultimate substantive decision in this proceeding and/or 

 affect the course of future proceedings or actions under the Marine Mammal 

 Protection Act are noted below with reference to the text of the Recommended 

 Decision (ALJ) and the transcript (Tr) and exhibits (Exh) of this proceeding. 



i. the lower bound of optimum sustainable population 



The Commission takes exception to the finding and/or conclusion that the 

 lower bound of the optimum sustainable population is 50 percent of the un- 

 exploited population (ALJ 73). This aspect of the Recommended Decision is of 

 vital importance not only to this proceeding but also, as a precedent, to the 

 continuing effort to implement the goals of the Marine Mammal Protection Act 

 in operational terms. 



In discussing the finding that the lower bound of OSP is 50 percent of un- 

 exploited population levels, the Decision notes that Dr. Fox testified at greater 

 length than any other witness on the issue of OSP and related matters and 

 that his testimony was persuasive and convincing (ALJ 73). The Commission 

 takes exception to this reliance upon the testimony of Dr. Fox, not as the 

 Decision suggests (ALJ 73), because it is based on a purely biologically point 

 of view, but rather because it is based exclusively upon the testimony of Dr. 

 Fox which is unsupported by or contrary to the testimony of all other expert 

 witnesses and the weight of the evidence which was adduced in the course of 

 their testimony and the cross-examination of Dr. Fox. The evidence in support 

 of the 50 percent rather than the 60 percent level is so uncertain and unper- 

 suasive that the choice of the 50 percent level is arbitrary. It is the selection 

 of an arbitrary approach to the issue in the face of uncertainty that is legally 

 unacceptable in light of the clear policy and requirements of the Act that marine 

 mammals come first and that their protection be assured. Selection of an ar!i- 

 trary 50 percent figure for the lower bound of OSP in the face of uncertainty 

 and persuasive evidence that the level is more appropriately set at 60 percent 

 does serve to provide an appealingly simple approach and resolves difficulties 

 which might otherwise be encountered in accommodating competing interests of 

 the tuna industry. But the choice of one rather than another level for this 

 purpose is precisely the type of "balancing act" that is proscribed by the Courts. 

 Committee for Humane Legislation, Inc. v Richardson, 414 F. Supp. 297 (D.D.C. 

 1976) ; ALJ 20-21. 



A. The Range of 80-70 Percent for the Lower Bound of OSP is Unsupported 



As the Decision notes, Dr. Fox differed with the other participants in the 

 La Jolla Workshop in his view that the lower bound of OSP should be 30-70 

 percent of unexploited population levels ; the Workshop Report considered the 

 range of the lower level of OSP to be 50-70 percent and several participants 



