50 



ommended Decision, the Workshop Reporl does not Indicate any recanun^nda- 

 tton with respecl to the Level of taking from this or any other population. 



i. The Quota for Eastern Bpimier Dolphins. Based upon the preceding 

 analysis, the Commission takes exception to the recommendation that a take of 

 6,587 Eastern spinner dolphins be permitted (ALJ S6-87). The Eastern spinner 

 population should he treated as depleted and no regulations or permits should 

 he issued to allow the intentional taking of Eastern spinner dolphins. The 



Commission pec mended Intentional taking of Eastern spinners he prohibited 



and the prohibition of fishing on Eastern spinners should apply to intentional 

 tishinu' on pure OS well ax mixed schools. 



5. \li.rr,i SchooU. Consistent with the discussion of the Eastern spinner 

 population above, the Commission takes exception to the recommendation on 

 page 98 of the Recommended Decision to the extent thai it would permit inten- 

 tional setting on mixed schools which were known to contain Eastern spinni c 

 dolphins before the set was made. While the Commission agrees that there is 

 some margin of error in identifying schools, the recommendation of the Admin- 

 istrative Law Judge does not appear to solve the problem. It will arise as soon 

 as the quotas on species found in mixed schools are reached. Intentional setting 

 on mixed schools containing coastal spotted dolphin. Costa Rican spinner dol- 

 phin, and Eastern spinner dolphin, as well as any pure schools other than off- 

 shore spotted and common dolphins, should be prohibited. Increased training 

 and increased observer effort should he utilized to implement the ban with 

 reference to a reasonable margin of good faith error as suggested by the Ad- 

 ministrative Law Judge (ALJ 97). 



B. The Total Quota 



The Commission takes exception to the recommended total quota of 96,000 

 animals (ALJ S7) for the reasons set forth below. 



1. A Kill of 06,000 is Inconsistent with the Goal of the Aet. — The Recom- 

 mended Decision recognizes the "well defined legal requirement that porpoise 

 mortality is to be reduced" (ALJ 30). The finding that a quota of 90.000 satis- 

 fies this requirement (ALJ 87) is, however, erroneous with reference to the 

 data which are available at this time. The Recommended Decision notes that 

 the total U.S. kill in 1974 was 99,000 and that it was 1.31,000 in 1975 (ALJ 22). 

 The 96,000 figure would be a reduction from the 1975 level of kill but only a 

 slight reduction of 3,000 from the 1974 level of kill. No point estimate is avail- 

 able for the 1976 kill at this time. It is estimated to be between 84,000 and 

 112.500 (ALJ 22). The Administrative Law Judge apparently compares the 

 91 1.000 figure to the upper limit of the range of estimates — 112,500 — and there- 

 fore concludes that 96,000 will be a reduction. It could, however, represent an 

 increase if the actual total kill in 1976 is closer to the lower bound of the range 

 and it will be only slightly below the mid-point of the range — 9S.250. Moreover, 

 the 96,000 figure exceeds the 30 percent reduction of the 1975 kill which was 

 set by the National Marine Fisheries Service as a goal in the beginning of the 

 1076 season. It therefore represents a regression. In addition, the 96.000 figure 

 exceeds the 78.000 quota which was set and presumably would have been en- 

 forced during the 1976 fishing season, had it not been for unsuccessful but 

 dilatory delays resulting from challenges by certain fishermen. For this reason 

 as well, the 96,000 figure is a repression rather than progress toward the goal 

 of reducing incidental mortality and serious injury. 



2. A Lower Total Quota is Practicable. — The 96.000 figure is in excess of the 

 levels requested by tuna industry representatives. Mr. Kelly testified that only 

 85,000 was necessary (Tr 1907), as did Mr. Silva (Tr 2350) and Mr. Mulligan 

 (Tr 2689). Mr. Alverson testified that a quota of 84,000-91,000 was necessary 

 (Tr 2794-95). 



In addition, the Administrative Law Judge found that a kill rate of 0.7 is 

 attainable (ALJ 24). 111.000 short tons of yellowfish were taken on porpoise in 

 1075 by U.S. vessels in the Eastern tropical Pacific (ALJ Appendix A). Assum- 

 ing a similar catch in 1976, a kill rate of .7 porpoise per ton of yellowfin taken 

 on porpoise would result in a kill of 77,700, not 96,000. 



IV. SUNDOWNERS AND RUBBER BOATS — FACE PLATES 



As the Recommended Decision notes (ALJ 43), sundowners have the poten- 

 tial for high kill rates and. as indicated in Exhibit 31, it is not possiblo to 

 discern the number or type of porpoises encircled, killed, or released in dark- 



