47 



felt that the minimum lower bound should be 60 percent of unexploited levels 

 (Workshop Report, p. 7, fn 3) and so testified, as discussed below. Dr. Fox and 

 the Administrative Law Judge base their selection of the 50 percent level, in 

 part, on the fact that it is the central value in the 30-70 percent range (Exh 7, 

 p. 8; ALJ 71, 73) and the validity of this selection is therefore dependent upon 

 the inclusion of the 30, 40, and 50 percent values within this range. 



1. The 30 Percent Figure is Unsupported. — The validity of the 30 percent 

 figure is persuasively challenged by Dr. Chapman on the basis that the only 

 paper providing support for the figure (Exh 22) contains assumptions which 

 are without foundation with respect to the data and do not have any basis by 

 comparison with the biology of other marine mammals, and that the parameters 

 give a sustained harvest from all age groups of 51 percent of the population 

 which is absurd and must result from basic errors in the assumptions or calcu- 

 lations (Exh 21, P. 10; Tr 962-G3). Dr. Chapman also testified that if another 

 questionable assumption of the paper were reversed, as is more reasonable, the 

 lower level for the subject population would be 68 percent of unexploited levels 

 (Exh 21, P. 11). 



In response to cross-examination, Dr. Fox testified that he did not know 

 whether or not the basic assumption of the paper upon which he relied for the 

 30 percent figure — that the mortality rate is the same for immature animals 

 as for mature animals — was true (Tr 420). He testified that he is aware of a 

 number of marine mammal populations for which this is not true, admitted 

 that he was not familiar with the work of other harp seal investigators chal- 

 lenging the assumption, and that he "merely looked at the individual paper" 

 (Tr 421). Dr. Fox could not express a view as to whether the sustained harvest 

 of 51 percent of all ages was reasonable, since he had not studied the paper as 

 a whole very carefully (Tr 423). He also testified that he knew of no other 

 scientific study that suggests a 30 percent level for a marine mammal popula- 

 tion (Tr 427) and noted that porpoises are cetaceans and that all of the data 

 of which he is aware suggest a level that is higher than 30 percent for cetaceans 

 (Tr 428). 



Despite these obvious weaknesses in the basis for the 30 percent figure, both 

 Dr. Fox and the Decision include it as a valid figure in the range of estimates 

 for the lower level of OSP. Indeed, Dr. Fox testified that he weighted it equally 

 with the 70 percent figure, even though there were substantial data supporting 

 the higher figures (Tr 426-27). The record provides no support for the 30 

 percent figure and it must be discounted entirely and removed from considera- 

 tion in determining the lower level of OSP. 



2. There is Virtually No Support for the .' f Percent Figure. — The record is 

 absolutely devoid of any substantive discussion or evidence indicating that the 

 lower level of OSP might be as low as 40 percent of unexploited levels. It too. 

 therefore, must be removed from the range of estimates of the lower level of 

 OSP. 



3. The 50 Percent Figure is only Weakly Supported and Speculative. — Dr. 

 Fox stated that the 50 percent figure is supported by the only data from a por- 

 poise population (Exh 7. p. 8). Upon cross-examination concerning these data, 

 contained in a paper dealing with a Japanese population of porpoises (Exh 41), 

 Dr. Fox indicated that the basic assumption that the population is in equilib- 

 rium is not valid (Tr 613). He testified that he did not calculate the points to 

 determine whether they were correctly utilized in the graph upon which he 

 relied because he did not realize that the calculations were based upon an 

 assumption of equilibrium (Tr. 615-16). He further testified that he did not 

 know the effect that this assumption and errors in the calculations or graph 

 would have on the conclusion that the lower level is 50 percent (Tr 616) but 

 stated that, if the points in the graph were not correct, then the best relation- 

 ship may not be linear and may not be 50 percent (Tr 618). The expert testi- 

 mony of other witnesses, discussed below, suggests that the relationship may 

 well not be linear (Exh 21, 28, 29) and that, absent reliable data and analyses 

 to support it, the 50 percent is speculative, at best. 



B. The Lower Bound of OSP Should be Set at 60 Percent 



As suggested above, the 30, 40. and 50 percent figures are not supported by 

 any acceptable data or analyses in the record which warrant their consideration 

 in'anv range of estimates for the lower level of OSP. The selection of 50 per- 



