rent as the central value of the range, as suggested by Dr. Pox (Exh 7. p. 8); 

 is therefore Inappropriate because 50 percenl is. at best, the lowest level in the 

 range. Selection of the centra] value would therefore give al least <;o percent 

 for the lower bound. Moreover, the Bupporl for the 50 percent Qgure is so un- 

 certain that it should not be given serious consideration. 



Dr. Fox admits, on cross-examination, thai the use of the range of estimates 

 is not the real hasis for selection of the .">() percent level. He testified that he 

 found no hasis for selecting a level so he chose the xi>ii)>hxt model which gives 



the ."it percent figure (Tr 426). The selection of this value, for which there is 

 no acceptable Bupport in the record, and its adoption in the Decision is objec- 

 tionable because it Ignores the substantial evidence that was adduced in supporl 

 of the CO percenl value. That evidence is set forth in Ihe testimony of Dr. 

 Chapman (Exh --'I. p. 10-12; Tr 960-7.~>). The uncontroverted evidence Indicates 

 that the lower bound of OSP for cetaceans is at least 60 percent of unexploited 

 levels. For the blue whales, the lower hound of OSP occurs at 07..", percent : ^'ov 

 the tin whales in the Antarctic, it occurs at HO percenl of unexploited levels 

 (Exh 23a). These estimates, unlike the weak support for the .",0 percenl figure, 

 are based upon an analysis of data and are not critically dependent upon 

 untested assumptions (Exh 21. p. 11). These and other studies, as well as the 

 clear need to he conservative in the face of uncertainties, led both Dr. Chapman 

 and Dr. Aron to testify that the lower hound of OSP not be less than CO per- 

 cent of unexploited levels i Exh 21, p. 12; Exh 81; Tr 960-75, 3015-18). 



II. DEPLETION 



Based upon the preceding discussion which leads to the finding that the lower 

 hound of OSP should he set at 00 percent, the Eastern spinner population, at 

 r,2-.">4 percent of unexploited levels (ALJ 75), is depleted, and the Commission 

 therefore takes exception to the discussion of depletion in the Recommended 

 Decision and the finding that the Eastern spinner population is not depleted 

 t ALJ 76). 



1. The Sibenius Analysis. — Even assuming arguendo that 50 percent rather 

 than 60 percent were the lower bound of OSP, the analysis by Mr. Sibenius 

 (Exh 18) requires a finding that the Eastern spinner population is depleted. 



The Recommended Decision discussed the conclusion of the Sihenius analysis 

 and notes that, if anything, it probably underestimates the likelihood of deple- 

 tion (ALJ 74). Having noted it. however, the Decision then ignores it entirely. 

 The Sibenius analysis cannot be ignored and, as noted by Dr. Chapman, pro- 

 vides an alternative approach which requires that the Eastern spinner popula- 

 tion be treated as depleted. Dr. Fox, when asked on cross-examination if the 

 Sibenius analysis suggested that the Eastern spinner population is depleted 

 even if the lower hound of OSP is 50 percent, said that he did not understand 

 it that way ( Tr 432-437). Dr. Fox and the Administrative Law Judge appar- 

 ently misunderstood the import of the Sibenius analysis. Mr. Sibenius, an 

 expert in prohahlistic analysis, testified that there is a 60..") percent likelihood 

 that the Eastern spinner population is depleted, regardless of where the lower 

 bound is set within the 50-70 percent range, using 1976 data for Eastern spinner 

 population size, and a 52.4 percent likelihood that it is depleted using the 1977 

 population figures (Tr 74."). Mr. Sibenius stated that there is thus a better 

 than HO percent chance that the population is depleted so long as there is an 

 equal chance of the lower bound falling anywhere between 50 and 70 percent 

 i Tr 745). As noted above, there is reason to believe that the lower bound is 

 substantially above the 50 percent figure and the likelihood of depletion would 

 therefore increase (Tr 746). 



2. Depletion was not Considered by the Workshop. — The Commission takes 

 exception to the discussion on the bottom of page 74 and the top of page 7." of 

 the Recommended Decision. Exhibits 9 and 9a. as well as the Workshop Report, 

 indicate that biological depletion whatever that means, was not considered. Dr. 

 Gulland, for example, states in his letter of 16 Octoher (Exh 9) that errors and 

 possihle precise definitions of the lower end of OSP were not dis USSed at great 

 length by the Workshop and that "below OSP. no catching" was not discussed 

 in great detail. Similarly, Dr. Tomlinson states in his response that only a 

 short time was spent discussing the lower hound of OSP and that no mention 

 was made of the consequences of a finding that a population was below OSP 

 (Exh 9). 



