49 



Clearlv, the fact that participants at the Workshop did not specifically 

 address the question does not justify the statement that none of the participants 

 at the Workshop considered any of the populations to be depleted. Obviously, 

 both Dr. Chapman and Dr. Aron considered the Eastern spinner population to 

 be depleted. 



3. Population Below OSP is Depleted.— The Commission takes exception to 

 the discussion at the top of page 75 of the Recommended Decision, to the extent 

 that the Decision relies upon it. This discussion would, if taken seriously, make 

 a mockery of management efforts. Obviously, estimates cannot be precise within 

 one animal. But a line must be drawn somewhere if excessive taking is to be 

 stopped. The Marine Mammal Protection Act says to draw that line at any one 

 of three points under Section 3(1) (A), (B), or (C). This discussion would sug- 

 gest that a population will not be depleted, even if it is below the 50 percent 

 level which Dr. Fox suggested. That approach is clearly unacceptable under the 

 Marine Mammal Protection Act as it is presently written. If the concern is 

 addressed to the rigor of the prohibitions imposed upon a depleted population, 

 then the appropriate course of action is to modify the prohibitions by legisla- 

 tive action. It is not, however, appropriate to conclude that it is impossible to 

 determine whether or not a population is depleted. 



III. QUOTAS 



A. Species or Stock Specific Quotas 



The Commission takes exception to the recommendations of the Administra- 

 tive Law Judge with respect to species specific quotas to the extent that they 

 are inconsistent with the recommendations set forth in its initial and reply 

 briefs. 



1. Assumptions and Uncertainties. — The fundamental and significant assump- 

 tions and uncertainties with respect to the available data are summarized by 

 Dr. Chapman (Exh 21, p. 2-6). These uncertainties relate to the estimates of 

 the historic kill by species, the present estimates of the kill, biases in the 

 estimation of porpoise populations, school size estimates, area occupied by 

 porpoises impacted in the purse seine fishery, and uncertainties in the net 

 reproductive rates and the changes in these rates with exploitation. In the face 

 of these uncertainties, decisions which may be to the disadvantage of the 

 affected porpoises must be conservation (Tr 980). 



Some confusion arises, in the context of establishing quotas based upon the 

 various levels of confidence, because the Administrative Law Judge appears to 

 believe that the computations leading to the various levels of permissible take 

 at one or another level of confidence includes some statistical calculation of the 

 likelihood that one or another of these uncertainties will be resolved in favor 

 or against the porpoises. This, in fact, is not the case. The assumptions con- 

 cerning the reproductive rates, the effects of serious injury, the effects of chase, 

 the effects of age-sex selection, and other factors noted throughout the record 

 are not quantified in statistical terms. The estimates of confidence that one 

 or another level of take can occur and still allow the population to increase 

 assume that the assumptions are correct. In order to assure that the affected 

 populations will not be disadvantaged, the recommended levels of take set forth 

 in the Commission's reply brief are the legally acceptable levels so as to 

 account for some possibility that one or more of the assumptions will fail (Tr 

 976; Exh 29, p. 9). 



2. The Quota for Offshore Spotted Dolphins. — The Commission's recommended 

 quota of 34,203 offshore spotted dolphins utilized the available data and sta- 

 tistical techniques to compute a quota which effectively accounted for the un- 

 certainty concerning the net reporductive rate of the offshore spotted popula- 

 tion. The recommendation of the Administrative Law Judge does not account 

 for this uncertainty. 



3. The Quota for Whitebelly Spinner Dolphins.— As in the case of the off- 

 shore spotted dolphins, the Administrative Law Judge summarizes but does not 

 express his reasons for rejecting the Commission's recommendation with respect 

 to this quota. A total U.S. kill of 7,835 animals, as recommended by the Com- 

 mission, would not pose a threat of depletion to this population but would slow 

 the decline which will occur as a result of the taking recommended by the 

 Administrative Law Judge. Contrary to the statement on page 83 of the Rec- 



