Federal Register, Volume 86 Issue 147 (Wednesday, August 4, 2021) 2021 Federal Register, 86 FR 41917-41934; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 86, Number 147 (Wednesday, August 4, 2021)]
[Proposed Rules]
[Pages 41917-41934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15949]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2021-0043; FF09E21000 FXES11180900000 212]
RIN 1018-BF35

Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Emperor Penguin

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the emperor penguin (Aptenodytes forsteri), a flightless bird
species from Antarctica, as a threatened species under the Endangered
Species Act of 1973, as amended (Act). This proposal also serves as our
12-month finding on a petition to list the emperor penguin. After a
review of the best available scientific and commercial information, we
find that listing the species is warranted. Accordingly, we propose to
list the emperor penguin as a threatened species with a rule issued
under section 4(d) of the Act (``4(d) rule''). If we finalize this rule
as proposed, it would add this species to the List of Endangered and
Threatened Wildlife and extend the Act's protections to the species.

DATES: We will accept comments received or postmarked on or before
October 4, 2021. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 20, 2021.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2021-0043,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, check the Proposed
Rule box to locate this document. You may submit a comment by clicking
on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2021-0043, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting documentation used
to prepare this proposed rule, including the species status assessment
(SSA) report, is available on the internet at http://www.regulations.gov under Docket No. FWS-HQ-ES-2021-0043.

FOR FURTHER INFORMATION CONTACT: Elizabeth Maclin, Chief, Branch of
Delisting and Foreign Species, Ecological Services Program, U.S. Fish
and Wildlife Service, MS: ES, 5275 Leesburg Pike, Falls Church, VA
22041-3803 (telephone 703-358-2171). Persons who use a
telecommunications device for the deaf may call the Federal Relay
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, if we determine that
a species is an endangered or threatened species throughout all or a
significant portion of its range, we are required to promptly publish a
proposal in the Federal Register. We will make a determination on our
proposal within 1 year, unless we determine that there is substantial
disagreement regarding the sufficiency and accuracy of the available
data relevant to the proposed listing, in which case we may extend the
final determination for not more than 6 months. Listing a species as an
endangered or threatened species can only be completed by issuing a
rule.
What this document does. We propose to list the emperor penguin as
a threatened species with a 4(d) rule under the Act.
The basis for our action. Under the Act, we may determine that a
species is

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an endangered or threatened species because of any of five factors: (A)
The present or threatened destruction, modification, or curtailment of
its habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence. We have determined
that the emperor penguin is likely to become endangered within the
foreseeable future throughout a significant portion of its range,
meeting the Act's definition of a threatened species. The emperor
penguin is a sea-ice-obligate seabird distributed around the entire
coastline of Antarctica. The global population is estimated at 270,000-
280,000 breeding pairs. Given the influence that weather and climate
have in affecting the extent and duration of sea ice and relatedly prey
abundance around Antarctica, the effects of climate change present the
most substantial threat facing the species.
We are also proposing a section 4(d) rule. When we list a species
as threatened, section 4(d) of the Act (16 U.S.C. 1533(d)) allows us to
issue regulations that are necessary and advisable to provide for the
conservation of the species. Accordingly, we are proposing a 4(d) rule
for the emperor penguin that would prohibit import, export, take,
possession and other acts with unlawfully taken specimens, interstate
or foreign commerce in the course of a commercial activity, or sale or
offer for sale. It would also be unlawful to attempt to commit, to
solicit another to commit, or to cause to be committed any such
conduct. The proposed 4(d) rule would provide exceptions for certain
activities with emperor penguins that are permitted under the Antarctic
Conservation Act of 1978, as amended (16 U.S.C. 2401 et seq.) and its
implementing regulations in title 45 of the Code of Federal Regulations
(CFR) at part 670. An exception is also proposed for interstate
commerce from public institutions to other public institutions,
specifically museums, zoological parks, and scientific or educational
institutions that meet the definition of ``public'' at 50 CFR 10.12. We
may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances, such as for scientific purposes, or the
enhancement of propagation or survival of the species in the wild.

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, the
scientific community, industry, or any other interested parties
concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Population trends at breeding colonies;
(b) Genetics and taxonomy, particularly related to the four known
metapopulations and the areas of Antarctica that have not yet been
analyzed;
(c) Historical and current range, including redistribution patterns
in relation to catastrophic events;
(d) Colony names and locations;
(e) Sea-ice conditions in Antarctica, and projected trends;
(f) Modeling efforts of sea-ice conditions using the Community
Earth System Model Large Ensemble project and/or other models to
simulate sea ice in Antarctica as it relates to emperor penguins; and
(g) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include destruction, modification, or curtailment of habitat
or range; overutilization for commercial, recreational, scientific, or
educational purposes; disease or predation; the inadequacy of existing
regulatory mechanisms; or other natural or manmade factors.
(3) Biological, commercial trade, and relevant data concerning any
threats (or lack thereof) to this species and existing regulations that
may be addressing those threats.
(4) Information on regulations that are necessary and advisable to
provide for the conservation of the emperor penguin and that the
Service can consider in developing a 4(d) rule for the species. In
particular, we seek information concerning the extent to which we
should include the Act's section 9 prohibitions (16 U.S.C. 1538) in the
4(d) rule, or whether we should consider including any other
prohibitions or exceptions in the 4(d) rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov.
Because we will consider all substantive comments and information
we receive during the comment period, our final determination may
differ from this proposal. Based on the best available scientific and
commercial information, we may conclude that the species is endangered
instead of threatened, that the species is threatened throughout its
range instead of in a significant portion of its range, or that the
species does not warrant listing as either an endangered species or a
threatened species. We may change the parameters of the prohibitions or
the exceptions to those prohibitions in the 4(d) rule if we conclude it
is appropriate in light of comments and new information we receive. For
example, we may expand the prohibitions to include prohibiting
additional activities if we conclude that those additional activities
are not compatible with conservation of the species. Conversely, we may
establish additional exceptions to the prohibitions in the final rule
if we conclude that the activities would facilitate or are compatible
with the conservation and recovery of the species.

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Public Hearing

Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register at least 15 days before the hearing. For the immediate
future, we will provide these public hearings using webinars that will
be announced on the Service's website, in addition to the Federal
Register. The use of these virtual public hearings is consistent with
our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

On December 5, 2011, we received a petition from the Center for
Biological Diversity to list the emperor penguin as endangered or
threatened under the Act. On January 22, 2014, we published a 90-day
finding that the petition presented substantial scientific and
commercial information indicating that the petitioned action may be
warranted; that document also initiated a status review for the emperor
penguin (79 FR 3559).

Supporting Documents

We prepared a species status assessment (SSA) for the emperor
penguin, in consultation with species experts (Service 2021, entire).
The SSA report represents a compilation of the best scientific and
commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species. In accordance with our
joint policy on peer review published in the Federal Register on July
1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review of listing actions under the Act, we
sought the expert opinions of six appropriate specialists regarding the
SSA. The Service received six responses. We worked with scientists that
have expertise with the species and its habitat, modeling sea ice in
Antarctica, and projecting the response of emperor penguins under
various climate change emissions scenarios.

I. Proposed Listing Determination

Background

A thorough review of the taxonomy, life history, and ecology of the
emperor penguin is presented in the SSA report (Service 2021; available
at http://www.regulations.gov under Docket No. FWS-HQ-ES-2021-0043).
Taxonomy
The emperor penguin (Aptenodytes forsteri) is a recognized species
(ITIS 2020, unpaginated). In 1844, the head of the ornithology section
of the British Museum in London (George Robert Gray) separated emperor
penguins from king penguins (A. patagonicus), their closest relatives
(Wienecke et al. 2013, p. 24; ITIS 2020, unpaginated).
The emperor penguin appeared to be panmictic--genetically
homogeneous at the continent scale--which implies the entire species
shares a common demographic history (Cristofari et al. 2016, p. 2).
However, the most recent studies on the genetic differentiation of
emperor penguins revealed at least four metapopulations (i.e., regional
groups of connected populations of a species), with some degree of
connectivity among the metapopulations, and very high connectivity
between breeding colonies within each metapopulation (Younger et al.
2017, p. 3888). However, our understanding of gene flow for emperor
penguins is incomplete, as not all colonies have been included in
genetic analyses. For example, no colonies from West Antarctica have
been sampled.
Physical Description
Penguins are flightless birds that are highly adapted for the
marine environment. They are excellent swimmers and can dive to great
depths (Australian Antarctic Division 2020, unpaginated). The emperor
penguin is the tallest and heaviest of all living penguin species
(Australian Antarctic Division 2020, unpaginated). Adults may weigh up
to 40 kilograms (88 pounds) and are as tall as 114 centimeters (45
inches) (National Geographic 2020, unpaginated). Males and females are
similar in plumage and size, although males are slightly larger than
females. Emperor penguins have large reserves of energy-giving body
fat, excellent insulation in the form of several layers of very dense
scale-like feathers, and strong claws for gripping the ice (Australian
Antarctic Division 2020, unpaginated).
Range and Distribution
The emperor penguin is endemic to Antarctica and has a pan-
Antarctic distribution, meaning the species occurs around the entire
continental coastline of Antarctica (see figure 1, below, for
distribution of breeding colony locations). The species breeds mainly
on fast ice, which is sea ice attached or ``fastened'' to the coast,
between 66 [deg]S and 78 [deg]S latitude along the coast of Antarctica
(Williams 1995, p. 153; Fretwell and Trathan 2020, p. 7). No gaps
larger than 500 kilometers (311 miles) occur between colonies, except
in front of large ice shelves that are probably unsuitable habitats
because of the disturbance of iceberg calving (Fretwell and Trathan
2020, p. 10).
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TP04AU21.136

BILLING CODE 4333-15-C
Figure 1. Distribution of known emperor penguin breeding colonies
as of 2020 (numbered dots), including four colonies that were not
extant in 2019 (7, 15, 18, 37) and the extirpated Dion Islets colony
with approximate location on the peninsula (marked as X). The
unnumbered white dots with approximate locations are 11 colonies that
were discovered or rediscovered in 2019. Black lines are the fronts of
large ice shelves and probably unsuitable habitat. Four white polygons
approximately represent the four known metapopulations (Credit for data
and figure: Fretwell and Trathan 2009; Fretwell et al. 2012, 2014;
Fretwell and Trathan 2020; Wienecke 2011; Ancel et al. 2014; LaRue et
al. 2015; Younger et al. 2017; Jenouvrier et al. 2020; also see figures
2.1 and 2.10 in Service 2021).
Life History
The emperor penguin has a long breeding cycle, approximately 8 to 9
months, commencing in the austral (southern) fall to complete the
rearing of a single chick per pair within a year. It is the only warm-
blooded Antarctic species that breeds during the austral winter and is
uniquely adapted for doing so (Trathan et al. 2020, p. 3). The breeding
cycle for the species is similar throughout its range, although the
timing may vary slightly between colonies depending on the regional sea
ice conditions, with some starting sooner and others later (Williams
1995, p. 20; Wienecke et al. 2013, in Trathan et al. 2020, p. 3). The
Pointe G[eacute]ologie colony in Terre Ad[eacute]lie, East Antarctica
(colony #35 in figure 1, above) has been monitored annually for more
than six decades. Most of our understanding of emperor penguin behavior
patterns at breeding colonies is based on what has been learned from
this site. Behavior patterns at this colony during the breeding season
are well known, but much of the species' ecology at sea is poorly
known. In the wild, the average life span is estimated up to 15 to 20
years (National Geographic 2020, unpaginated), although demographic
models indicated the average life span is 10-12 years (Jenouvrier 2021,
pers. comm). One generation is estimated at 16 years (Jenouvrier et al.
2014, p. 717). Age at first breeding is 5 years old (Mougin and Beveren
1979, in Williams 1995, p. 160; Jenouvrier et al. 2005, Appendix A).
Population Biology
Arrival at breeding colonies is synchronous with when annual sea
ice begins to form in March/April. Emperor penguins are serially
monogamous, but mate fidelity is low between breeding

[[Page 41921]]

seasons (Williams 1995, p. 160). Females lay one egg. Males incubate
the egg on their feet while females go to sea to forage. Once the egg
hatches, males and females alternate between chick-rearing duties and
foraging until the chick can thermoregulate independently, and then
both adults forage simultaneously to provide enough food for their
growing chick. It takes about 150 days from hatching to fledging before
chicks depart from the colony (Stonehouse 1953, p. 28). Juveniles come
back to a colony at approximately 4 years of age and breed for the
first time at about 5 years of age (Jenouvrier et al. 2005, Appendix
A). Yearlings and subadults can regularly occur at colonies, but they
do not yet breed (Wienecke 2021, pers. comm.).
Breeding success varies from year to year in relation to both
biotic factors (mainly food availability) and abiotic factors (e.g.,
ice conditions, heavy precipitation). In general, breeding success for
Aptenodytes species is 0.6-0.8 chicks per pair while laying only a
single-egg clutch (Williams 1995, p. 33). At the Point G[eacute]ologie
colony, breeding success for emperor penguin varied over six decades
from 2 to 88 percent (Jenouvrier et al. 2005, entire; Jenouvrier et al.
2009, entire). In the same season, breeding success may vary among
colonies (Robertson et al. 2014, p. 257). Approximately 80 percent of
mature emperor penguins breed every year (Jenouvrier et al. 2005, p.
2900). The mean survival rate is estimated to be 95 percent for adults,
and 40 percent for juveniles (Abadi et al. 2017, p. 1357; Mougin and
Beveren 1979, in Williams 1995, p. 160). At Point G[eacute]ologie,
annual adult survival was 60-98 percent over six decades (Barbraud and
Weimerskirch 2001, in Jenouvrier et al. 2012 appendices, p. 31). The
population growth rate of long-lived species is mainly sensitive to
changes in adult survival (Barbraud and Weimerskirch 2001, p. 184).
Population Size
As of 2020, 61 known emperor penguin breeding colonies are extant
around Antarctica (Fretwell and Trathan 2020; Fretwell and Trathan
2009; Fretwell et al. 2012, 2014; Wienecke 2011; Ancel et al. 2014;
LaRue et al. 2015). The global population size is estimated at
approximately 270,000-280,000 breeding pairs or 625,000-650,000
individual birds (Trathan et al. 2020, p. 4; National Geographic 2020,
unpaginated; Fretwell and Trathan 2020, p. 10). Sea ice surrounding
Antarctica is described within five sectors (Weddell Sea, Indian Ocean,
Western Pacific Ocean, Ross Sea, and Bellingshausen Sea-Amundsen Sea;
see figure 2, below), which may approximately correspond to the known
genetic variation among colonies and the Southern Ocean as a whole. The
Ross Sea and Weddell Sea sectors contain the highest abundance of
emperor penguins relative to the other three sectors.
Data sources include ground and aerial surveys, particularly
satellite imagery. Most of the colonies have never been, and perhaps
never will be, visited by humans because most breeding colonies are not
practical to visit. They are too remote from occupied research
stations, and the emperor penguin breeding season occurs during the
austral winter, when ground visits to breeding colonies are not
feasible with existing techniques (Jenouvrier et al. 2014a, p. 715;
Ancel et al. 2014, p. 1). Satellite imaging makes it possible to
monitor inaccessible colony locations and estimate colony sizes;
although such estimates of colony sizes may be imprecise because
colonies move with the wind (Trathan 2021, pers. comm.), they provide
the best available information for inaccessible colonies.

Regulatory and Analytical Framework

Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. The
Act defines an endangered species as a species that is ``in danger of
extinction throughout all or a significant portion of its range,'' and
a threatened species as a species that is ``likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The Act requires that we determine
whether any species is an endangered species or a threatened species
because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may either encompass--together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, and then analyze the cumulative effect of all
of the threats on the species as a whole. We also consider the
cumulative effect of the threats in light of those actions and
conditions that will have positive effects on the species, such as any
existing regulatory mechanisms or conservation efforts. The Secretary
determines whether the species meets the definition of an endangered
species or a threatened species only after conducting this cumulative
analysis and describing the expected effect on the species now and
within the foreseeable future.
Foreseeable Future
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
foreseeable future extends only so far into the future as the Service
can reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
Reliable does not mean certain; it means sufficient to provide a
reasonable degree of confidence in the prediction. Thus, a

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prediction is reliable if it is reasonable to depend on it when making
decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
When considering the future condition of emperor penguins, climate
change is projected to be the most substantial threat to emperor
penguins across the species' range. Determining a future time horizon
for assessing plausible climate change-driven impacts is complicated by
the variation in magnitude of change in climate variables projected
further into the future. Uncertainty in century-scale projections of
Earth's climate stems from a few main sources, in addition to model
imperfections. In the near term, natural climate variability is the
largest source of uncertainty in climate projections. Over multi-
decadal timescales (approximately the next 30 to 50 years),
uncertainties among climate model outputs tend to be most influenced by
our imperfect scientific knowledge of the climate system. Over longer
timescales (approximately the next 60 to 100 years), human actions and
decisions affecting global greenhouse gas (GHG) emissions are
considered to be the largest source of uncertainty in climate
projections (Terando et al. 2020, pp. 14-15). Climate models used in
national and global assessments simulate plausible and realistic
representations of Earth's climate, but variations of initial
conditions or model parameters and differences in how the models are
developed and configured causes variation in model outputs, and
ultimately affects the sensitivity of any given model to changes in
atmospheric GHG concentrations (Terando et al. 2020, p. 14).
Atmospheric concentrations of GHG emissions in the near- and mid-
term are determined primarily by current emissions and the average time
it takes emitted molecules to break down chemically in the atmosphere.
In the long term, human choices regarding economic development, changes
in technology, and population trends will determine emission levels
(Terando et al. 2020, p. 15).
The reliability of modeled projections of sea ice in the Southern
Ocean using Global Circulation Models (GCMs) from the Coupled Model
Intercomparison Project (CMIP) is an important issue (Trathan et al.
2020, p. 5; Roach 2020, entire). The amount of sea ice has exhibited
minimal positive trends from 1979 to 2018; however, nearly all
individual models simulate declining sea ice over this period (Roach
2020, entire). The existing models often do not capture the regional
and, in some cases, opposing trends observed by satellites, and no
single model matches the historical conditions at all colonies in all
seasons. Thus, there is lower confidence in projections of Antarctic
sea ice because of the wide range of outputs, and models not being able
to replicate historical satellite observations, as well as multiple
factors and complex interactions between the ocean and atmosphere that
affect the Antarctic ice sheet (Meredith et al. 2019, pp. 205, 223).
However, models continue to improve their ability to represent
historical sea-ice conditions in Antarctica.
The key statutory difference between a threatened species and an
endangered species is the timing of when a species may be in danger of
extinction, either now (endangered species) or within the foreseeable
future (threatened species). In the emperor penguin SSA, we considered
time horizons at mid-century, late-century, and end-of-century (2050,
2080, 2100) for analyzing the future condition of emperor penguins. The
population projections of emperor penguins are based on
Intergovernmental Panel on Climate Change (IPCC) climate-change-model
projections following available IPCC scenarios, using GCMs from (CMIP)
phase 3 (CMIP3) and phase 5 (CMIP5).
When applying the information in the SSA to a listing context in
considering what is the foreseeable future for emperor penguins, the
projections of the global emperor penguin population begin to diverge
around 2050. At 2050, population projections from all scenarios are
within 50,000 pairs of each other (see figure A2 in the SSA report
(Service 2021, p. 83). The differences in population estimates grows to
approximately 150,000 breeding pairs by 2100, with scenario based on
Representative Concentration Pathway (RCP) 8.5 predicting near
extinction while the scenarios based on the Paris Accord commitments
predict gradual declines that do not fall under 135,000 breeding pairs.
Thus, after 2050, the variation in population size results in too much
uncertainty for the Service to make reliable predictions on whether the
emperor penguin's response to the threat of climate change will result
in the species being in danger of extinction or not.
Climate change is the most substantial threat to emperor penguins
in the future because of an increase in air and sea temperatures that
negatively affects sea ice habitat and, relatedly, prey abundance in
Antarctica. Most of the difference between the present climate and the
climate at the end of the century and beyond will be determined by
decisions made by policymakers today and during the next few decades
(Terando et al. 2020, p. 15). At this time, we have little clarity on
what decisions will be made by policymakers in the next few decades.
Thus, we determined the projections of sea-ice conditions and the
response of emperor penguins at the late-century and end-of-century
(2080 and 2100) time horizons to be too uncertain to make reliable
predictions. The 2050 time horizon extends only so far into the future
as the Service can reasonably determine that both the future threats
and the species' response to those threats are likely. Therefore, in
this evaluation, we identified mid-century (2050) as the foreseeable
future for the threat of climate change because that is the period over
which we can make reliable predictions as to sea ice and the future
condition of emperor penguins.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the emperor penguin should be proposed for
listing as an endangered or threatened species under the Act. However,
it does provide the scientific basis that informs our regulatory
decisions, which involve the further application of standards within
the Act and its implementing regulations and policies. The following is
a summary of the key results and conclusions from the SSA report; the
full SSA report can be found at Docket No. FWS-HQ-ES-2021-0043 on
http://www.regulations.gov.
To assess the emperor penguin's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example,

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wet or dry, warm or cold years), redundancy supports the ability of the
species to withstand catastrophic events (for example, droughts, large
pollution events), and representation supports the ability of the
species to adapt over time to long-term changes in the environment (for
example, climate changes). In general, the more resilient and redundant
a species is and the more representation it has, the more likely it is
to sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
We used the SSA framework to evaluate the current biological status
of emperor penguins at mid-century, late-century, and end-of-century
(years 2050, 2080, and 2100). Because of the uncertainty about the
magnitude of climate change at late-century (2080) and end-of-century
(2100) time horizons, we were unable to make reliable predictions about
the emperor penguin's response for the latter half of the century.
Although the SSA report contains information on modeling results out to
2100, this proposed rule focuses on the threat of climate change and
the emperor penguin's response to that threat at mid-century.
Therefore, we focus on the 2050 timeframe as the foreseeable future for
this proposed rule (see Foreseeable Future, above, for more information
on how we determined the foreseeable future).
Species Needs/Ecological Requirements
The SSA contains a detailed discussion of the emperor penguin's
individual and population requirements (Service 2021, pp. 14-27); we
provide a summary here.
Emperor penguins rely on annual, stable fast ice to form breeding
colonies; pack ice (belt of sea ice comprising ice floes of varying
sizes that drifts in response to winds, currents, or other forces) and
polynyas to forage; sufficient prey resources year round; and areas of
sea ice to haul out, molt, rest, and avoid predation (Williams 1995,
pp. 157-159; Ainley et al. 2010, p. 51; Trathan et al. 2020, p. 3).
Polynyas are regions of biologically productive open water surrounded
by ice and provide prime foraging habitat for emperor penguins because
they often provide the closest open water to a colony (Labrousse et al.
2019, p. 2; NSIDC 2020, unpaginated).
Emperor penguins are meso-predators near the top of the Southern
Ocean's food web (Cherel and Kooyman 2008, p. 2). They hunt
opportunistically and shift foraging strategies relative to prey
abundance and distribution (Trathan et al. 2020, p. 3; Williams 1995,
p. 155). The life histories of emperor penguins and their primary prey
species (e.g., Antarctic silverfish (Pleurogramma antarctica) and
Antarctic krill (Euphausia superba)) are tied to sea-ice extent and
duration, and reproductive success of emperor penguins is highly
dependent on foraging success. Thus, the interaction of demographic
processes of reproduction and survival drives the population dynamics
of emperor penguins, which are all related to the sea-ice environment.
Factors Influencing Viability of Emperor Penguins
Based on emperor penguin's life history and habitat needs, and in
consultation with species' experts, we identified the stressors likely
to affect the species' current and future condition and overall
viability, as well as the sources of the stressors, and the existing
conservation and regulatory measures that address certain stressors.
For a full description of our evaluation of the effects of these
stressors, refer to the SSA report (Service 2021, pp. 27-45).
Climate Change
Climate change presents the most substantial threat facing emperor
penguins. Other stressors on the species include tourism and research,
contaminants and pollution, and commercial Antarctic krill fisheries,
but these stressors are minor and not considered to be driving factors
of the emperor penguin's viability now or in the future. See the SSA
report for a review of the minor threats (Service 2021, pp. 40-45).
Climate change is a change in the state of the climate that can be
identified (e.g., by using statistical tests) by changes in the mean
and/or the variability of its properties and that persists for an
extended period, typically decades or longer. Climate change may be due
to natural internal processes or external forcings, which refers to an
agent outside the climate system causing a change in the climate
system, such as modulations of the solar cycles or volcanic eruptions,
or to persistent anthropogenic changes in the composition of the
atmosphere (e.g., GHG emissions) or in land use (IPCC 2014a, pp. 120,
123).
Earth's climate has changed throughout history, and substantial
regional variation exists in observations and projections of climate
change impacts (IPCC 2014b, p. 1137). The current global warming trend
is significant and most of it is extremely likely to be the result of
humans adding heat trapping greenhouse gases to the atmosphere (IPCC
2014a, pp. 4-5; NASA 2020, unpaginated). Anthropogenic GHG emissions
have increased since the pre-industrial era, largely because of
technology and economic and population growth. This increase has led to
atmospheric concentrations of carbon dioxide, methane, and nitrous
oxide that are unprecedented in at least the last 800,000 years (IPCC
2014a, p. 4). The planet's average surface temperature has risen about
0.9 degrees Celsius ([deg]C) (1.62 degrees Fahrenheit ([deg]F)) since
the late 19th century, with most of the warming occurring in the past
35 years and with the 6 warmest years on record taking place since 2014
(NASA 2020, unpaginated).
The Antarctic continent has seen less uniform temperature changes
over the past 30-50 years, compared to the Arctic, and most of
Antarctica has yet to see dramatic warming (Meredith et al. 2019, p.
212). The Antarctic Peninsula juts out into warmer waters north of
Antarctica and is one of the fastest warming places on Earth, warming
2.5 [deg]C (4.5 [deg]F) since 1950 (Meredith et al. 2019, p. 212).
However, warming has slowed on the peninsula since the late-1990s; this
variability is within the bounds of large natural decadal-scale
regional climate variability (Turner et al. 2016, p. 7; Stroeve 2021,
pers. comm.).

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In East Antarctica, no clear trend has emerged, although locations
where some research stations occur appear to be cooling slightly (NSIDC
2020, unpaginated).
The magnitude of climate change into the future depends in part on
the amount of heat-trapping gases emitted globally and how sensitive
Earth's climate is to those emissions, as well as any human responses
to climate change by developing adaptation and mitigation policies
(NASA 2020, unpaginated; IPCC 2014a, p. 17).
Sea ice is sensitive to both the atmosphere and ocean; thus, it is
an important indicator of polar climate changes (Hobbs et al. 2016, p.
1543). Given the influence that weather and climate have in affecting
the extent and duration of sea ice and, relatedly, prey abundance
around Antarctica, climate change is a substantial potential threat
facing emperor penguins. Changes in sea-ice extent and duration, due to
climate change, is projected to affect the emperor penguin's long-term
viability at breeding colonies throughout the species' range. Different
aspects of atmospheric circulation influence the annual sea-ice extent
around Antarctica (Turner et al. 2015, pp. 5-8). Thus, climate change
is not projected to have a uniform effect on the sea ice around the
continent (Ainley et al. 2010, p. 56; Jenouvrier et al. 2014a, entire).
Because sea ice in some regions of Antarctica are projected to be more
affected than in other regions, emperor penguins and their breeding
habitat around the continent will be affected at different magnitudes
and temporal scales.
Unique to Antarctica is calving of huge, tabular icebergs, a
process that can take a decade or longer by which pieces of ice break
away from the terminus of a glacier (NSIDC 2020, unpaginated). On a
stable ice shelf, iceberg calving is a near-cyclical, repetitive
process producing large icebergs every few decades. These events are
part of the natural system and not a good indicator of warming or
climate change (NSIDC 2020, unpaginated). However, warmer temperatures
can destabilize this system. Rapid ice-shelf collapse is attributed to
warmer air and water temperatures, as well as increased melt on the ice
surface (NSIDC 2020, unpaginated). Rapid collapse of ice shelves or
calving of icebergs can affect emperor penguins, which mostly breed on
fast ice at continental margins. Generally, catastrophic ice-shelf
collapse or iceberg calving could cause mortality of chicks and adults,
destroy a breeding colony resulting in total breeding failure, and
prevent adult penguins from reaching their feeding ground affecting
survival and reproductive success. For example, in March 2000, an
iceberg from the Ross Ice Shelf calved and lodged near the Cape Crozier
and Beaufort Island colonies in the Ross Sea, which caused habitat
destruction, mortality of adults and chicks, and blocked access to
foraging areas (Kooyman et al. 2007, p. 31). The effect would depend on
the time of year (season) and the breeding colony's proximity to a
collapsing ice shelf or calving iceberg (Fretwell and Trathan 2019, pp.
3-6; Kooyman et al. 2007, pp. 36-37). If a catastrophic event occurs,
emperor penguins have been known to try to return to that same breeding
location or relocate to another nearby site. However, this results in a
loss of at least one breeding season for those birds because they may
not find an alternate site that season.
The effect of climate change on prey abundance, relative to changes
in sea ice, for emperor penguin and other marine life in the Southern
Ocean could be substantial. However, the effect of climate change on
Southern Ocean pelagic primary production is difficult to determine
given that the time series data are insufficient (less than 30 years)
to attribute a climate-change signature and effects may be due to a
combination of climate change and natural variability (Meredith et al.
2019, p. 230; Ainley et al. 2010, p. 63). Nevertheless, the emperor
penguin's primary prey species are positively tied to local sea-ice
conditions and the penguin's breeding success is highly dependent on
its foraging success. Therefore, subsequent distresses to the food web
because of changes in sea ice increase the risk to emperor penguins
over the long term.
Conservation Efforts and Regulatory Mechanisms
Antarctica is designated as a natural reserve devoted to peace and
science under the Protocol on Environmental Protection to the Antarctic
Treaty (Protocol) that was signed in 1991 and entered into force in
1998 (Secretariat of the Antarctic Treaty 2020, unpaginated). The
Protocol includes annexes with measures to minimize effects to the
Antarctic environment from conduct related to activities in Antarctica
such as national program operations, scientific research, tourism, and
other non-governmental activities. The Antarctic Treaty System (see
United States Treaties and Other International Agreements (UST): 12 UST
794; Treaties and Other International Acts Series (TIAS): TIAS 4780;
and the United Nations Treaty Series (UNTS): 402 UNTS 71), first signed
in 1959 by 12 nations, regulates international relations with respect
to Antarctica. Fifty-four countries have acceded to the Treaty, and 29
of them participate in decision making as Consultative Parties.
Protection of the Antarctic environment has been a central theme in the
cooperation among Parties (Secretariat of the Antarctic Treaty 2020,
unpaginated).
Under the Protocol, certain protected areas have been established
to protect outstanding environmental, scientific, historic, aesthetic
or wilderness values, any combination of those values, or ongoing or
planned scientific research. Additionally, marine-protected-area
boundaries may include ice shelves, adjacent fast ice and pack ice, and
potentially afford more complete protection for emperor penguins at
their breeding site and while feeding or molting at sea than protected
areas that are land based (Trathan et al. 2020, p. 7). To date, seven
active breeding sites are protected within protected areas and seven
are protected by the Ross Sea region marine protected area, including
three colonies that are also in protected areas (Trathan et al. 2020,
p. 8) The management plans for these areas explain specific concerns
about emperor penguins (Secretariat of the Antarctic Treaty 2020,
unpaginated).
In the United States, the Antarctic Conservation Act of 1978 (16
U.S.C. 2401 et seq.) (ACA) also provides for the conservation and
protection of the fauna and flora of Antarctica (defined to mean the
area south of 60 [deg]S latitude (16 U.S.C. 2402)), and of the
ecosystem upon which those fauna and flora depend, consistent with the
Antarctic Treaty and the Protocol. The ACA's implementing regulations
(45 CFR part 670) include provisions relating to the conservation of
Antarctic animals, including native birds such as emperor penguins.
Additionally, the Convention on the Conservation of Antarctic
Marine Living Resources (Convention) (33 UST 3476; TIAS 10240), which
establishes the Commission for the Conservation of Antarctic Marine
Living Resources (Commission), provides for the conservation and
rational use of marine living resources in the Convention area. The
Commission was established in 1982, with the objective of conserving
Antarctic marine life, in response to increasing commercial interest in
Antarctic krill resources and a history of over-exploitation of several
other marine resources in the Southern Ocean (Commission 2020,
unpaginated). Twenty-five countries plus the European Union are party
to the Convention, with another 10 countries

[[Page 41925]]

also having acceded (Commission 2020, unpaginated). The United States
implemented the Commission through the Antarctic Marine Living
Resources Convention Act of 1984 (16 U.S.C. 2431 et seq.) (AMLRCA).
Under the AMLRCA, among other prohibitions, it is unlawful to: (1)
Engage in harvesting or other associated activities in violation of the
provisions of the Convention or in violation of a conservation measure
in force with respect to the United States; and (2) ship, transport,
offer for sale, sell, purchase, import, export, or have custody,
control or possession of, any Antarctic marine living resource (or part
or product thereof) harvested in violation of a conservation measure in
force with respect to the United States (16 U.S.C. 2435).
The regulatory mechanisms and conservation efforts focus on the
native marine and terrestrial resources of Antarctica. The existing
mechanisms minimize environmental impacts to emperor penguins from
national program operations, scientific research, tourism, and other
non-governmental activities in Antarctica. None of the existing
regulatory mechanisms addresses the primary and unique nature of the
threat of climate change on emperor penguins; however, we recognize the
value these regulatory mechanisms and conservation efforts play in
helping to conserve the species.
Current Condition
The current condition of emperor penguin is based on population
abundance (i.e., number of breeding pairs) at each colony and the
global abundance distributed throughout the species' range. The
resiliency of each emperor penguin colony is tied to local sea-ice
conditions because the species depends on sea ice that offers a
breeding platform to complete its annual breeding cycle and promotes
primary production. As sea ice melts in the summer, it releases algae
and nutrients into the water that stimulate phytoplankton blooms, which
play a key role in the Southern Ocean food web (Hempel 1985, in Flores
et al. 2012, p. 4). Therefore, the estimates of sea-ice condition and
the emperor penguin population are directly related, and sea ice serves
as a proxy measure of all important habitat factors for the species.
Sea ice surrounding Antarctica is described within five sectors
(Weddell Sea, Indian Ocean, Western Pacific Ocean, Ross Sea, and
Bellingshausen Sea-Amundsen Sea) (figure 2), which may approximately
correspond to the known genetic variation among colonies and the
Southern Ocean as a whole.
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BILLING CODE 4333-15-C
As of 2020, 61 emperor penguin breeding colonies are extant. Of the
66 total known colonies, four were not extant or not visible in the
2019 satellite imaging, 1 colony is extirpated, and 11 of the colonies
were newly discovered or rediscovered in 2019. The global population
comprises approximately 270,000-280,000 breeding pairs or 625,000-
650,000 individual birds. The Ross Sea and Weddell Sea sectors contain
the highest abundance of birds relative to the other three sectors.
In the Southern Ocean, sea-ice extent undergoes considerable inter-
annual variability, although with much greater inter-annual variability
regionally than for the Southern Ocean as a whole (Parkinson 2019, p.
14414). Sea-ice extent in the Southern Ocean is currently within its
natural range of variability. Over the 40 years from 1979 to 2018, the
yearly sea-ice extent in the Southern Ocean has a small, but
statistically insignificant, positive trend. However, this overall
increase masks larger and sometimes opposing regional differences in
trends (Turner et al. 2015, pp. 1-2; Parkinson 2019, p. 14419). The
greatest increase in sea ice extent has been in the Ross Sea sector,
with smaller increases in the Weddell Sea and along the coast of East
Antarctica, and a decrease in the Bellingshausen Sea and Amundsen Sea
in West Antarctica (Turner et al. 2015, p. 9; Holland 2014, in Meredith
et al. 2019, p. 214; Parkinson 2019, entire). The satellite record
reveals that the gradual, decades-long overall increase in Antarctic
sea-ice extent reversed in 2014, with subsequent rates of decrease in
2014-2018. All sectors, except the Ross Sea, have experienced at least
one period since 1999 when the yearly average sea-ice extent decreased
for 3 or more consecutive years only to rebound again, and eventually
reach levels exceeding the sea-ice extent preceding the 3 years of
decreases. Therefore, recent decreases in sea ice may not indicate a
long-term negative trend (Parkinson 2019, p. 14420).
Emperor penguins may have difficulties finding food in years of low
sea ice, which may increase adult mortality and reduce breeding
success. Currently, prey abundance appears not to be a limiting factor
for emperor penguins.
The emperor penguin currently has high resiliency, redundancy, and
representation. Sixty-one breeding colonies are distributed around the
coastline of Antarctica with no indication that their distribution has
decreased or is presently decreasing. The number of known breeding
colonies has increased over time, because the use of satellite imagery
has improved the ability to locate colonies and roughly estimate
population sizes at colonies. Catastrophic events may include iceberg
calving, ice-shelf disintegration, and storm events. However, if a
catastrophic event occurs, it only affects a small proportion of the
total breeding colonies at any one time, and the displaced penguins try
to return to that same breeding location or relocate to another nearby
colony. Breeding colonies within the four known metapopulations have
some degree of connectivity among metapopulations and very high
connectivity between breeding colonies within each of the
metapopulations. Two of the four metapopulations are in East Antarctica
(Mawson Coast and Amanda Bay/Point G[eacute]ologie metapopulations)
while the other two are the Weddell Sea metapopulation and the Ross Sea
metapopulation (Younger et al. 2017, p. 3892). There has been no loss
of the known metapopulations.
Future Condition
The interaction of demographic processes of reproduction and
survival drives the population dynamics of the emperor penguin, which
are all related to the sea-ice environment. Therefore, to project the
long-term viability of emperor penguin, the sea-ice extent and/or
concentration and how it relates to the emperor penguin's long-term
demographics has been modeled under different climate change scenarios
(Ainley et al. 2010, entire; Jenouvrier et al. 2009, 2012, 2014, 2017,
2020). The research into emperor penguin populations and their habitat
conditions uses an ensemble of climate models based on changes in sea
ice into the future that is founded on standard climate modeling
efforts (e.g., Ainley et al. 2010; Jenouvrier et al. 2009, 2012, 2014,
2017, 2020; Melillo et al. 2014).
The future scenarios for population projections of emperor penguins
are based on climate change model projections following available IPCC
scenarios using Global Circulation Models driven by Special Report on
Emissions Scenarios (SRES) and by Representative Concentration Pathways
(RCP) scenarios (Hayhoe et al. 2017, p. 142).
Modeling efforts projected sea-ice conditions and the emperor
penguin's response under low-, moderate-, and high-emissions scenarios.
The Paris Agreement set a goal to limit global warming to below 2
[deg]C and preferably to 1.5 [deg]C, compared to pre-industrial levels
(United Nations 2021, unpaginated). The Paris Agreement goals (low-
emissions scenario) do not represent or equate to any RCP scenario;
they are uniquely designed to meet the global temperature change
targets set in the Paris Agreement (Sanderson and Knutti 2016, in
Jenouvrier et al. 2020, p. 1; Sanderson et al. 2017, p. 828). The
global temperature is likely to increase 0.3-1.7 [deg]C under RCP 2.6,
and 1.0-2.6 [deg]C under RCP 4.5 (IPCCb 2019, p. 46). Therefore, based
strictly on the projected increase in global temperature, the Paris
Agreement goals would fall within the projected range of RCP 2.6 and
RCP 4.5 projections. Thus, we view the two projections aligned with the
Paris goals collectively as one low-emissions scenario. We also
evaluated two moderate-emissions scenarios: One in which the global
temperature is projected to increase up to 2.6 [deg]C under RCP 4.5,
and a second in which the global temperature is projected to increase
up to 3.2 [deg]C by the end of the century (SRES A1B). Finally, we used
a high-emissions scenario (RCP 8.5) with the greatest warming where
global temperature is projected to increase up to 4.8 [deg]C (IPCC
2019b, p. 46).
Given the complexities of Global Circulation Models and
advancements in technology, models typically build upon previous
modeling efforts. The modeling for the global population of emperor
penguins and sea-ice conditions was initially run under scenario SRES
A1B in CMIP3 using the best available information of the population and
demographics at the time. SRES A1B in CMIP3 is consistent with RCP 6.0
in CMIP5 (Melillo et al. 2014, p. 755). As newer models were developed,
and experts learned more about emperor penguin dispersal capabilities
and behavior and discovered more colonies that increased the global
population size, the modeling efforts were refined to account for
additional colonies and inter-colony dispersal behaviors. Additionally,
the most recent projections for the emperor penguin include simulations
that account for extreme or catastrophic events occurring in Antarctica
(Jenouvrier et al. 2021, in litt.).
The Community Earth System Model Large Ensemble project was used in
the most recent modeling efforts to simulate the sea-ice conditions,
building upon the initial efforts of the moderate-emissions scenario
SRES A1B, which used models that contributed to CMIP3. The Community
Earth System Model contributed to CMIP5 and was included in the IPCC
fifth assessment report (Jenouvrier et al. 2020, pp. 3-4). The largest
differences between the Community Earth System Model

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compared to historical sea-ice conditions occur in the nonbreeding
season, which has a small influence on emperor penguin population
growth rates. Sea-ice conditions during the laying season have the
greatest effect on the population growth rates, and those conditions
are well addressed in this model (Jenouvrier et al. 2020, p. 7). The
sea-ice models relied on for the SSA report represent the best
available scientific information.
The demographic parameters for emperor penguin used for all
colonies are based on, and extrapolated from, the population at Pointe
G[eacute]ologie in Terre Ad[eacute]lie (see figure 1, colony #35)
because the vast majority of colonies have not been visited or subject
to long-term studies. Sea ice-condition is projected to decrease in
Antarctica and emperor penguins will likely need to disperse or attempt
to disperse as colonies are disrupted or lost due to sea-ice
instability. The simulations in the latest unpublished models include
emperor penguin dispersal behaviors and extreme or catastrophic events,
and we find including these additional demographic factors is an
improvement because they represent natural and observed parts of the
emperor penguin's relationship to the sea-ice environment. See the SSA
report for a more thorough discussion of the demographic uncertainties
in century-scale projections of climate change as they relate to
emperor penguins (Service 2021, pp. 56-57, 80-82).
Low-Emissions Scenario
Under the low-emissions scenario, the median global population of
emperor penguins is projected to decline by 26 percent under Paris 1.5,
and by 27 percent under Paris 2.0 by 2050. At that point, approximately
185,000 breeding pairs would remain. However, the declines would not
occur equally around the continent. Colonies in the Ross Sea and
Weddell Sea are likely to experience more stable conditions. Colonies
in the Ross Sea are projected to increase from their current size by
2050, as penguins from other areas with less suitable habitat migrate
to the Ross Sea. Colonies in the Weddell Sea are projected to increase
initially; however, by 2050, the population is projected to be slightly
smaller than the current population size in this sector. Colonies in
the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific
Ocean sectors are projected to decline the most. By 2050, colonies
within these three sectors are projected to decline by at least 50
percent, but the vast majority are projected to decline by more than 90
percent.
Moderate-Emissions Scenarios
For simulations under one of the moderate-emissions scenarios, SRES
A1B in CMIP3, the population growth rate is projected to be slightly
positive until 2050, while the median global population is projected to
decline by 19 to 33 percent by 2100 (Jenouvrier et al. 2014a, p. 716;
Jenouvrier et al. 2014b, p. 28). We note this projection is at 2100 and
we do not have an estimate of the global population or population size
within each sector at 2050. Under the other moderate-emissions
scenario, RCP 4.5, the global population is projected to decline by 33
percent by 2050 (to approximately 167,000 breeding pairs; Jenouvrier et
al. 2021, in litt.). Similar to the projections under the low-emissions
scenario, the declines are not equal around the continent. The Ross Sea
and Weddell Sea experience the smallest decrease in breeding pairs.
However, even high-latitude colonies in the Ross Sea and Weddell Sea
are not immune to changes in sea-ice condition under this scenario
(Jenouvrier et al. 2014, entire; Schmidt and Ballard 2020, pp. 183-
184). The vast majority, and possibly all, colonies in the Indian
Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean
sectors are projected to decline by more than 90 percent. Two important
differences in the results of the two moderate-emissions scenarios are
noteworthy: The projections under SRES A1B were modeled using a
different model and method than all the other scenarios, and the
projections under RCP 4.5 include demographic factors of dispersal and
extreme events while SRES A1B projections do not. Dispersal behaviors
may accelerate, slow down, or reverse the anticipated rate of
population decline of emperor penguins, compared to the population
projection without dispersal considered, but does not change the
overall conclusion that the global population will decline. Extreme
events are projected to increase the magnitude of decline throughout
the species' range.
High-Emissions Scenario
Under the high-emissions scenario, RCP 8.5, the global population
of emperor penguin is projected to decline 47 percent by 2050 (to
approximately 132,500 breeding pairs; Jenouvrier et al. 2021, in
litt.). Similar to the low- and moderate-emissions scenarios, the
declines are not equal around the continent. However, the population
decline is greater in magnitude under the high-emissions scenario. The
few colonies that are projected to remain occur in the Ross Sea and
Weddell Sea. The breeding colonies in the Indian Ocean, Bellingshausen
Sea-Amundsen Sea, and Western Pacific Ocean sectors are projected to
decline by more than 90 percent.
Resiliency, Redundancy, and Representation
The two most resilient sectors of Antarctica are first the Ross Sea
and then the Weddell Sea under every emissions scenario. The breeding
colonies in these sectors are projected to have the highest resiliency
because these areas are likely to have the most stable long-term sea-
ice conditions. The breeding colonies in the Indian Ocean sector are
projected to be the least resilient, and experience the largest
population declines and sea-ice decrease and variability under every
scenario. The Bellingshausen Sea-Amundsen Sea sector is also projected
to have low resiliency. Projected declines in the Western Pacific Ocean
sector are more complex and vary according to emissions scenario;
however, the colonies in this sector also markedly decline. Under the
high-emissions scenario RCP 8.5, the vast majority of breeding colonies
throughout the range decline significantly by 2050, resulting in the
Ross Sea and Weddell Sea serving as the last refuges for the species.
Redundancy is higher under the low-emissions scenario than under
the moderate- and high-emissions scenarios because more colonies remain
extant under the low-emissions scenario. Under the high-emissions
scenario, the colonies in the three least resilient sectors (Indian
Ocean, Bellingshausen Sea-Amundsen Sea, and the Western Pacific Ocean)
are predicted to decline substantially, if not disappear entirely,
whereas under the other emissions scenarios some colonies are predicted
to decline less appreciably in East Antarctica and in West Antarctica
depending on the scenario. Including extreme events into the
simulations increases the magnitude of declines at breeding colonies
throughout the range under every scenario.
Representation is similar to redundancy in that it decreases as the
distribution of the species declines. The emperor penguin is predicted
to lose genetic diversity under every scenario because the overall
population abundance is projected to decline. Under the low-emissions
scenario with projections that do not include dispersal or extreme
events, no known metapopulations are lost, although colonies that make
up the two metapopulations in East Antarctica are projected to decline.
However, when

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including dispersal and extreme events, both of the metapopulations in
East Antarctica along with many other colonies in East Antarctica and
in the Bellingshausen Sea-Amundsen Sea sector for which genetics have
not been analyzed are projected to decline by more than 90 percent by
2050.
Projections under the moderate-emissions scenarios show a similar
pattern with an increase in magnitude of decline, which would also
likely result in the loss of the two metapopulations in East
Antarctica. Emperor penguins may migrate to the Ross Sea or Weddell Sea
where some habitat is projected to remain suitable as habitat quality
declines in the other sectors. However, the colonies that remain will
likely reach carrying capacity, and some colonies provide little
potential for population expansion (Jenouvrier et al. 2014, p. 716).
Under the high-emissions scenario, the emperor penguin would
increasingly lose genetic diversity, because of declines in the Weddell
Sea and Ross Sea, which account for the other two known
metapopulations. Colonies within these two metapopulations would
decrease in redundancy over time, thus reducing the genetic variation
within the two metapopulations. The Ross Sea may be the last stronghold
for the species, but even the number of breeding colonies in the Ross
Sea have the potential to decline under the high-emissions scenario.
Therefore, the genetic diversity of emperor penguins will substantially
decrease under the high-emissions scenario because the vast majority of
all colonies are likely to decline by more than 90 percent, or
disappear entirely.
Summary
The emperor penguin is currently in high condition because the
species has high resiliency, redundancy, and representation. Sixty-one
breeding colonies are distributed around the coastline of Antarctica
with no indication that there has been a decrease in their range or
distribution. Colony size naturally fluctuates, and reproductive
success varies from year to year at breeding colonies in relation to
both biotic and abiotic factors. However, emperor penguins have high
survival rates and reproductive success. Genetic analysis has
identified four known metapopulations of emperor penguins, with many
areas of Antarctica not yet analyzed.
Sea-ice extent in the Southern Ocean is currently within its
natural range of variability. The yearly sea ice extent in the Southern
Ocean has a small positive but statistically insignificant trend over
the 40 years from 1979 to 2018, although the overall increase masks
larger, opposing regional differences in trends. The emperor penguin's
main prey resources are directly related to the extent and duration of
sea ice. Currently, prey abundance appears not to be a limiting factor
for emperor penguins.
The Antarctic continent has seen less uniform temperature changes
over the past 30 to 50 years, compared to the Arctic, and most of
Antarctica has yet to see dramatic warming. Weather and climate are
projected to affect the extent and duration of sea ice and, relatedly,
prey abundance in Antarctica. Therefore, climate change presents the
most substantial threat facing emperor penguins in the future.
Antarctica will be profoundly different in the future compared with
today, but the degree of that difference will depend strongly on the
magnitude of global climate change. The magnitude of climate change
into the future depends in part on the amount of heat-trapping gases
emitted globally and how sensitive the Earth's climate is to those
emissions, as well as any human responses to climate change by
developing adaptation and mitigation policies.
Under all scenarios, sea-ice extent and the global population of
emperor penguins are projected to decline in the future; however, the
degree and speed of the decline varies substantially by scenario.
Accordingly, the resiliency, redundancy, and representation of the
emperor penguin will also decrease across all scenarios. The rate and
magnitude of decline of the sea-ice conditions and the number of
breeding pairs and colonies of emperor penguins varies between
scenarios, temporally and spatially. Breeding colonies in the Ross Sea
and Weddell Sea sectors, the current strongholds for the species, are
projected to retain the most resiliency and have the most stable sea-
ice conditions into the future, relative to the Indian Ocean,
Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean sectors. The
projected decline in the global population of emperor penguins is much
less under the low-emissions scenario (i.e., the scenarios that model
the Paris Accord) than under the high-emissions scenario (i.e., RCP
8.5). Similarly, redundancy and representation are higher under the
low-emissions scenarios compared to the high-emissions scenario because
more colonies are projected to be extant. Redundancy and representation
decline at a faster rate than resiliency because the Ross Sea and
Weddell Sea sectors contain at least half the global population, have a
greater initial population abundance compared to the other three
sectors, and are projected to have higher-quality sea-ice habitat over
a longer time period. These two sectors, and particularly the Ross Sea,
are strongholds for the species under every scenario, as the other
sectors markedly decline because sea-ice conditions deteriorate.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.

Determination of Emperor Penguin's Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an ``endangered species'' or
a ``threatened species.'' The Act defines an ``endangered species'' as
a species in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species likely
to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of an
endangered species or a threatened species because of any of the
following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.

[[Page 41929]]

Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
found that climate change presents the most substantial threat to
emperor penguin's viability. While other activities such as tourism and
commercial fisheries occur on and near Antarctica, international
regulatory measures are in place that adequately regulate conduct
related to these activities in Antarctica. Thus, no other stressors are
drivers of the species' viability.
The emperor penguin is currently in high condition because the
species has high resiliency, redundancy, and representation. Emperor
penguin breeding colonies are distributed around the continent (see
figure 1, above) with no indication that their distribution or genetic
or ecological diversity is presently decreasing. Sixty-one breeding
colonies are extant. The global population comprises approximately
270,000-280,000 breeding pairs or 625,000-650,000 individual birds,
with the greatest abundance in the Ross Sea and Weddell Sea sectors.
Emperor penguins have high survival and reproductive success, and
genetic analysis has identified four known metapopulations of emperor
penguins.
The sea-ice conditions in Antarctica are described within five
sectors (Weddell Sea, Indian Ocean, Western Pacific Ocean, Ross Sea,
and Bellingshausen Sea-Amundsen Sea), and colonies within these sectors
may approximately correspond to the genetic variation of the four known
metapopulations (see figures 1 and 2, above). Sea-ice extent in the
Southern Ocean serves as a proxy measure of all important habitat
factors for emperor penguins. Sea-ice extent is currently within its
natural range of variability. The yearly sea-ice extent in the Southern
Ocean has a small positive, but statistically insignificant trend over
the 40 years from 1979 to 2018, although the overall increase masks
larger, and sometimes opposing regional differences in trends. The
emperor penguin's main prey resources (Antarctic silverfish and
Antarctic krill) are directly related to the extent and duration of sea
ice. Currently, foraging success and prey availability appear not to be
limiting factors for emperor penguins throughout their range.
Thus, after assessing the best available information, we determined
that the emperor penguin is not currently in danger of extinction
throughout all of its range. We then turned our attention to
determining whether the emperor penguin is in danger of extinction
throughout all of its range within the foreseeable future.
At 2050, roughly 50,000 breeding pairs constitute the difference
between global population projections for the low- and high-emissions
scenarios. Starting at approximately 250,000 breeding pairs, under
Paris 1.5, the median number of breeding pairs declines to
approximately 185,000, and under RCP 8.5, the median number of breeding
pairs declines to approximately 132,500.
The Ross Sea and Weddell Sea sectors currently contain the greatest
abundance of emperor penguin breeding pairs and are projected to be the
most resilient sectors within the foreseeable future, relative to the
Indian Ocean, Western Pacific Ocean, and Bellingshausen Sea-Amundsen
Sea sectors. Redundancy and representation decline at a faster rate
than resiliency because the Weddell Sea, and particularly the Ross Sea,
are the strongholds for the species as the colonies in the other
sectors markedly decline because sea-ice conditions are projected to
deteriorate. Assessing the results of the projections for all scenarios
shows that the majority of the remaining global population would be in
the Weddell Sea and Ross Sea sectors. These two sectors contain two of
the four known metapopulations (Weddell Sea and Ross Sea
metapopulations) and are the two most resilient sectors.
The global population at 2050 is projected to decline between 26
percent (to approximately 185,000 breeding pairs) and 47 percent (to
approximately 132,500 breeding pairs) under the low- and high-emissions
scenarios, respectively. The global population would be large enough
and retain sufficient viability so that the species is not in danger of
extinction by 2050, because the breeding pairs remaining include at
least 50 percent of the global breeding pairs, even under the high-
emissions scenario. That said, the distribution of the species will be
reduced by 2050 because most, and possibly all, colonies and breeding
pairs will be limited to the Weddell Sea and Ross Sea sectors; almost
the entire decline of breeding pairs is because of the loss of breeding
colonies in the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and
Western Pacific Ocean sectors. However, enough breeding colonies would
be extant in the Weddell Sea and Ross Sea to withstand localized
stochastic and catastrophic events. The genetic and ecological
diversity of emperor penguins will be reduced because the decrease in
distribution of breeding colonies results in the loss of the colonies
that make up the two metapopulations in East Antarctica (Mawson Coast
and Amanda Bay/Point G[eacute]ologie metapopulations), and many other
colonies in East Antarctica and in the Bellingshausen Sea-Amundsen Sea
sector for which breeding colony genetics have not been analyzed. The
Weddell Sea and Ross Sea sectors contain the other two metapopulations
that maintain genetic and ecological diversity, are the strongholds for
the species, and are projected to contain the vast majority, and
possibly all, the remaining breeding colonies at 2050. The emperor
penguin will decrease in resiliency, representation, and redundancy
compared to current conditions. However, the global population size at
2050 will be large, and enough colonies will be extant in the Weddell
Sea and Ross Sea, such that the species as a whole will not likely to
be in danger of extinction.
Thus, after assessing the best available information, we conclude
that the emperor penguin is not likely to become in danger of
extinction within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. Having determined that the emperor penguin is not in
danger of extinction or likely to become so within the foreseeable
future throughout all of its range, we now consider whether the emperor
penguin is in danger of extinction or likely to become so within the
foreseeable future in a significant portion of its range--that is,
whether there is any portion of the species' range for which it is true
that both (1) the portion is significant; and (2) the species, in that
portion, is in danger of extinction or likely to become so within the
foreseeable future. Depending on the case, it might be more efficient
for us to address the ``significance'' question or the ``status''
question first. We can choose to address either question first.
Regardless of which question we choose to address first, if we reach a
negative answer with respect to the first question, we do not need to
evaluate the other question for that portion of the species' range.
For the emperor penguin, sea-ice conditions in Antarctica are
described in five sectors, which also may approximately correspond to
the known

[[Page 41930]]

genetic variation among breeding colonies. Emperor penguins are
distributed around the entire coastline of Antarctica, and we assessed
the status of the species in relation to the five sectors. Therefore,
to assess the significance and status questions, we consider emperor
penguins to occur within five sectors.
We chose to first address the status question--we consider
information pertaining to the geographic distribution of both the
species and the threats that the species faces to identify any portions
of the range where the species is endangered or threatened. We
considered whether the threat of climate change is geographically
concentrated in any portion of the species' range at a biologically
meaningful scale. Climate change is not projected to have a uniform
effect around the entire continent of Antarctica; the rate and
magnitude of decline of sea-ice conditions and breeding colonies vary
temporally and spatially. It is in this context that we considered the
concentration of threats of climate change to the emperor penguin.
We found that climate change is projected to substantially affect
the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific
Ocean sectors under every modeled emissions scenario within the
foreseeable future. The Ross Sea and Weddell Sea sectors are considered
strongholds for the species now and into the foreseeable future because
they have the most stable long-term sea-ice condition. However,
projections under low-, moderate-, and high-emissions scenarios result
in a substantial decline of the breeding colonies and sea-ice condition
in the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western
Pacific Ocean sectors. By 2050, the colonies within these three sectors
decline rather quickly and are projected to decline by at least 50
percent, with the vast majority projected to decline by more than 90
percent under every scenario.
Currently, breeding colonies are distributed along the entire
coastline of Antarctica with no gaps larger than 500 kilometers (311
miles) between colonies, except in front of large ice shelves (see
figure 1, above). By 2050, the global population of emperor penguins is
projected to decline between 26 percent (to approximately 185,000
breeding pairs) and 47 percent (to approximately 132,500 breeding
pairs); however, almost the entire decline of global breeding pairs is
because of the loss of breeding colonies in the Indian Ocean,
Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean sectors.
This results in a substantial decline of the population and
distribution of breeding colonies in these three sectors. Therefore,
because climate change is projected to affect the Indian Ocean,
Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean sectors of
the species' range more than the Ross Sea and Weddell Sea sectors,
resulting in a substantial decline of the breeding colonies in these
three sectors, the species may be in danger of extinction or likely to
become so within the foreseeable future in this portion of its range.
We first considered whether the species was endangered in the
Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific
Ocean portion of the species' range. The emperor penguin is currently
in high condition throughout its range (see Status Throughout All of
Its Range, above). Therefore, the emperor penguin within these three
sectors of its range is also currently in high condition, and the best
scientific and commercial data available indicates that this portion of
its range currently has sufficient resiliency, redundancy, and
representation to be secure in its current state. Therefore, the
emperor penguin is not currently in danger of extinction (endangered)
in that portion of its range.
However, while the divergence in global population projections
between the scenarios becomes more evident around 2050, under every
scenario the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western
Pacific Ocean sectors are projected to substantially decline within the
foreseeable future. The decline in the global population is almost
entirely attributed to the decline of sea-ice conditions and loss of
breeding colonies in the Indian Ocean, Bellingshausen Sea-Amundsen Sea,
and Western Pacific Ocean sectors. By 2050, breeding colonies within
these three sectors decline by at least 50 percent, with the vast
majority projected to decline by more than 90 percent. Therefore, the
emperor penguin in the Indian Ocean, Bellingshausen Sea-Amundsen Sea,
and Western Pacific Ocean sectors will have minimal to no resiliency,
distribution of breeding colonies, or genetic and ecological diversity
because very few colonies and breeding pairs are projected to remain in
this portion of the species' range by 2050. Thus, the species is likely
to become in danger of extinction within the foreseeable future in the
Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific
Ocean sectors.
We then proceeded to ask the question whether the portion of the
range including the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and
Western Pacific Ocean sectors is significant. We assessed whether this
portion of the species' range is biologically significant by
considering it in terms of the portion's contribution to resiliency,
redundancy, or representation of the species as a whole.
The Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western
Pacific Ocean sectors account for 40 to 50 percent of the global
population, approximately 60 percent of the species' range and total
number of known breeding colonies, and 50 percent of the known genetic
diversity. Ecological diversity between breeding colonies in the Indian
Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean
sectors include breeding location (sea ice vs. ice shelf), distance to
open water, exposure to katabatic winds (cold dense air flowing out
from interior Antarctica to the coast), and amount of snowfall.
Breeding colonies within the Indian Ocean, Bellingshausen Sea-Amundsen
Sea, and Western Pacific Ocean sectors provide connectivity between
colonies within the metapopulations and among the metapopulations in
different sectors. Currently, it is likely that all breeding colonies
are connected because the average distance between colonies throughout
the species' range (500 kilometers (311 miles)) is well within the
distance that emperor penguins can travel/disperse. The fact that
emperor penguins travel widely as juveniles, move among breeding
colonies, and share molting locations indicates that dispersal between
breeding colonies provides gene flow among colonies (Thiebot et al.
2013, entire; Younger et al. 2017, p. 3894). If there were minimal to
no breeding colonies (as projected) in the Indian Ocean, Bellingshausen
Sea-Amundsen Sea, and Western Pacific Ocean sectors, the distance
between colonies would substantially increase and reduce the
probability that all colonies are connected and provide gene flow among
colonies. Additionally, the diversity of the species and its habitat
would substantially decrease because the vast majority of colonies that
would remain (as projected) would only be in the Ross Sea and Weddell
Sea sectors. The Indian Ocean, Bellingshausen Sea-Amundsen Sea, and
Western Pacific Ocean sectors contribute significantly to the emperor
penguin's global population size (resiliency), global distribution
around the entire coastline of Antarctica (redundancy), and genetic and
ecological diversity (representation) of

[[Page 41931]]

the species as a whole, and the conservation of the species would
suffer the loss of these significant contributions if these sectors
were lost.
Therefore, having determined that the Indian Ocean, Bellingshausen
Sea-Amundsen Sea, and Western Pacific Ocean sectors (or portion of the
species' range) do indeed meet both of the significant portion of the
range prongs ((1) the portion is significant; and (2) the species is,
in that portion, likely to become in danger of extinction within the
foreseeable future), the emperor penguin is in danger of extinction
within the foreseeable future within a significant portion of its
range. This is consistent with the courts' holdings in Desert Survivors
v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447
(N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
Determination of Status
Our review of the best available scientific and commercial
information indicates that the emperor penguin meets the definition of
a threatened species. Therefore, we propose to list the emperor penguin
as a threatened species in accordance with sections 3(20) and 4(a)(1)
of the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing results in public awareness,
and conservation by Federal, State, Tribal, and local agencies, foreign
governments, private organizations, and individuals. The Act encourages
cooperation with the States and other countries and calls for recovery
actions to be carried out for listed species. The protection required
by Federal agencies and the prohibitions against certain activities are
discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
An ``action'' that is subject to the consultation provisions of
section 7(a)(2) is defined in our implementing regulations at 50 CFR
402.02 as ``all activities or programs of any kind authorized, funded,
or carried out, in whole or in part, by Federal agencies in the United
States or upon the high seas.'' With respect to the emperor penguin,
there are no ``actions'' known to require consultation under section
7(a)(2) of the Act, and it is therefore unlikely to be the subject of
section 7 consultations. Additionally, no critical habitat will be
designated for this species because, under 50 CFR 424.12(g), we will
not designate critical habitat within foreign countries or in other
areas outside of the jurisdiction of the United States.
Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the
provision of limited financial assistance for the development and
management of programs that the Secretary of the Interior determines to
be necessary or useful for the conservation of endangered or threatened
species in foreign countries. Sections 8(b) and 8(c) of the Act (16
U.S.C. 1537(b) and (c)) authorize the Secretary to encourage
conservation programs for foreign listed species, and to provide
assistance for such programs, in the form of personnel and the training
of personnel.
As explained below, the proposed 4(d) rule for the emperor penguin
would, in part, make it illegal for any person subject to the
jurisdiction of the United States to import or export; deliver,
receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of commercial activity; or
sell or offer for sale in interstate or foreign commerce any emperor
penguins. It would also be illegal to take (which includes harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt
any of these) within the United States or on the high seas; or to
possess, sell, deliver, carry, transport, or ship, by any means
whatsoever any emperor penguins that have been taken in violation of
the Act. It would also be unlawful to attempt to commit, to solicit
another to commit or to cause to be committed, any of these acts.
Certain exceptions apply to agents of the Service and State
conservation agencies. Additional exceptions are also provided in the
proposed 4(d) rule for activities permitted under the Antarctic
Conservation Act of 1978, as amended (16 U.S.C. 2401 et seq.), and its
implementing regulations (45 CFR part 670), including for take and
possession of emperor penguins within Antarctica, and for import and
export of emperor penguins between the United States and Antarctica. An
exception is also proposed for interstate commerce from public
institutions to other public institutions, specifically museums,
zoological parks, and scientific or educational institutions that meet
the definition of ``public'' at 50 CFR 10.12.
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened wildlife species under certain
circumstances. Regulations governing permits for threatened species are
codified at 50 CFR 17.32, and general Service permitting regulations
are codified at 50 CFR part 13. With regard to threatened wildlife, a
permit may be issued for the following purposes: For scientific
purposes, to enhance propagation or survival, for economic hardship,
for zoological exhibition, for educational purposes, for incidental
taking, or for special purposes consistent with the purposes of the
Act. The Service may also register persons subject to the jurisdiction
of the United States through its captive-bred-wildlife (CBW) program if
certain established requirements are met under the CBW regulations (50
CFR 17.21(g)). Through a CBW registration, the Service may allow a
registrant to conduct the following otherwise prohibited activities
under certain circumstances to enhance the propagation or survival of
the affected species: Take; export or re-import; deliver, receive,
carry, transport, or ship in interstate or foreign commerce, in the
course of a commercial activity; or sell or offer for sale in
interstate or foreign commerce. A CBW registration may authorize
interstate purchase and sale only between entities that both hold a
registration for the taxon concerned. The CBW program is available for
species having a natural geographic distribution not including any part
of the United States and other species that the Service Director has
determined to be eligible by regulation. The individual specimens must
have been born in captivity in the United States. The statute also
contains certain exemptions

[[Page 41932]]

from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. The discussion below regarding protective
regulations under section 4(d) of the Act complies with our policy.

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as he or she
deems necessary and advisable to provide for the conservation of
species listed as threatened. The U.S. Supreme Court has noted that
statutory language like necessary and advisable demonstrates a large
degree of deference to the agency (see Webster v. Doe, 486 U.S. 592
(1988)). Conservation is defined in the Act to mean the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Additionally, the
second sentence of section 4(d) of the Act states that the Secretary
may by regulation prohibit with respect to any threatened species any
act prohibited under section 9(a)(1), in the case of fish or wildlife,
or section 9(a)(2), in the case of plants. Thus, the combination of the
two sentences of section 4(d) provides the Secretary with broad
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to the Service when
adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him [or her] with regard to the permitted activities for those
species. He [or she] may, for example, permit taking, but not
importation of such species, or he [or she] may choose to forbid both
taking and importation but allow the transportation of such species''
(H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
Exercising this authority under section 4(d), we have developed a
proposed rule that is designed to address the emperor penguin's
specific threats and conservation needs. Although the statute does not
require us to make a ``necessary and advisable'' finding with respect
to the adoption of specific prohibitions under section 9, we find that
this proposed rule as a whole satisfies the requirement in section 4(d)
of the Act to issue regulations deemed necessary and advisable to
provide for the conservation of the emperor penguin.
As discussed above under Summary of Biological Status and Threats,
and Determination of Emperor Penguin's Status, we have concluded that
the emperor penguin is likely to become in danger of extinction within
the foreseeable future primarily due to climate change. Under this
proposed 4(d) rule, certain prohibitions and provisions that apply to
endangered wildlife under the Act's section 9(a)(1) prohibitions would
help minimize threats that could cause further declines in the species'
status. The provisions of this proposed 4(d) rule would promote
conservation of emperor penguins by ensuring that activities undertaken
with the species by any person under the jurisdiction of the United
States are also supportive of the conservation efforts undertaken for
the species in Antarctica. The provisions of this proposed rule are one
of many tools that we would use to promote the conservation of emperor
penguins. This proposed 4(d) rule would apply only if and when we make
final the proposed listing of the emperor penguin as a threatened
species.

Provisions of the Proposed 4(d) Rule

In the SSA report and this proposed rule, we identified the factor
of climate change as the greatest threat to the species. However, other
activities of tourism, research, commercial krill fisheries, and
activities that could lead to marine pollution also may affect emperor
penguins. Except for climate change, these other factors all have minor
effects on emperor penguins. Although this proposed 4(d) rule addresses
the threats that have minor effects on emperor penguins, regulating
these activities could help conserve emperor penguins and decrease
synergistic, negative effects from the threat of climate change. Thus,
the proposed 4(d) rule would provide for the conservation of the
species by regulating and prohibiting the following activities, except
as otherwise authorized or permitted: Importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, transporting, or shipping in interstate or foreign commerce
in the course of commercial activity; or selling or offering for sale
in interstate or foreign commerce. Under the Act, ``take'' means to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct. Some of these
provisions have been further defined in regulations at 50 CFR 17.3.
Take can result knowingly or otherwise, by direct and indirect impacts,
intentionally or incidentally. Prohibiting take applies to take within
the United States, within the territorial sea of the United States, or
upon the high seas.
As noted previously, in the United States, the Antarctic
Conservation Act of 1978 (ACA; 16 U.S.C. 2401 et seq.) provides for the
conservation and protection of the fauna and flora of Antarctica, and
of the ecosystem upon which such fauna and flora depend, consistent
with the Antarctic Treaty and the Protocol. The ACA's implementing
regulations (45 CFR part 670) include provisions relating to the
conservation of Antarctic animals, including native birds such as
emperor penguins. The National Science Foundation is the lead agency
that manages the U.S. Antarctic Program and administers the ACA and its
implementing regulations (45 CFR part 670).
Under the ACA, certain activities are prohibited related to flora
and fauna in Antarctica. Of particular relevance to emperor penguins,
the ACA prohibits take of any native bird within Antarctica without a
permit. The term ``native bird'' under the ACA means any member, at any
stage of its life cycle (including eggs), of any species of the class
Aves which is indigenous to Antarctica or occurs there seasonally
through natural migrations, and includes any part of such member (16
U.S.C. 2402(9); 45 CFR 670.3). Emperor

[[Page 41933]]

penguins are designated as native birds under the ACA (45 CFR 670.20).
To ``take'' under the ACA means to kill, injure, capture, handle, or
molest a native mammal or bird, or to remove or damage such quantities
of native plants that their local distribution or abundance would be
significantly affected or to attempt to engage in such conduct (16
U.S.C. 2402(20); 45 CFR 670.3). The ACA also makes it unlawful for any
person, unless authorized by a permit, to receive, acquire, transport,
offer for sale, sell, purchase, import, export, or have custody,
control, or possession of, any native bird, native mammal, or native
plant which the person knows, or in the exercise of due care should
have known, was taken in violation of the ACA (16 U.S.C. 2403(b)(5)).
A permit system managed by the National Science Foundation, in
coordination with appropriate agencies, issues permits under the ACA
for certain, otherwise prohibited activities such as take, import, and
export. Permits authorizing take of emperor penguins under the ACA may
be issued only: (1) For the purpose of providing specimens for
scientific study or scientific information; (2) for the purpose of
providing specimens for museums, zoological gardens, or other
educational or cultural institutions or uses; or (3) for unavoidable
consequences of scientific activities or the construction and operation
of scientific support facilities. Additionally, ACA permits shall
ensure, as far as possible, that (1) no more native mammals, birds, or
plants are taken than are necessary to meet the purposes set forth
above; (2) no more native mammals or native birds are taken in any year
than can normally be replaced by net natural reproduction in the
following breeding season; (3) the variety of species and the balance
of the natural ecological systems within Antarctica are maintained; and
(4) the authorized taking, transporting, carrying, or shipping of any
native mammal or bird is carried out in a humane manner (16 U.S.C.
2404(e); 45 CFR part 670, subparts C and D). Specific requirements also
apply to permits for proposed imports and exports of emperor penguins
(see 45 CFR part 670, subpart G). While we have found above that these
current efforts alone will be inadequate to prevent the species from
likely becoming in danger of extinction within the foreseeable future
due to the unique nature of the threat of climate change, we also
recognize the value these management efforts play in helping to
conserve the species.
The ACA applies to the area south of 60 [deg]S latitude, which
encompasses Antarctica and the entire distribution of emperor penguins.
Many provisions under the ACA are comparable to similar provisions in
the Act, including with regard to take; prohibitions on activities with
unlawfully taken specimens; and prohibitions on import and export. As
discussed above, for decades, the ACA has provided significant
conservation benefits and protections to the emperor penguin through
its regulation of these activities with emperor penguin. Accordingly,
we propose to provide exceptions from permitting requirements under the
Act for certain otherwise prohibited activities with emperor penguins
that are authorized by permit or regulation by the National Science
Foundation under the ACA. Specifically, we propose to provide
exceptions for take in Antarctica, import to the United States from
Antarctica, and export from the United States to Antarctica when these
activities are authorized under an ACA permit issued by the National
Science Foundation. These exceptions would not apply where there is a
violation of the ACA, and thus a violation of the ACA would also be a
violation of the Act under the proposed 4(d) rule. For example, for
import to the United States from Antarctica where the ACA requires an
import permit, the import of an emperor penguin without an ACA permit
would fail to meet the proposed regulatory exception, and therefore the
import would be prohibited by both the ACA and the Act under the
proposed 4(d) rule. A permit under the Act would be required for the
import and export of any emperor penguins for any other purpose (e.g.,
import from or export to another country, or import or export of a
captive-bred emperor penguin). Accordingly, all imports and exports of
emperor penguins would be prohibited unless authorized by an ACA
permit, a permit under the Act, or for law enforcement purposes.
Exceptions are also proposed to apply to take of emperor penguins, if
the activity meets the ACA regulatory exceptions for emergency
circumstances (45 CFR 670.5(a) and (c)), to aid or salvage a specimen
(45 CFR 670.5(b) and (c)), or for law enforcement purposes (including
the import or export of emperor penguins for law enforcement purposes;
45 CFR 670.9).
The proposed 4(d) rule also provides an exception for interstate
commerce from public institutions to other public institutions,
specifically museums, zoological parks, and scientific or educational
institutions, meeting the definition of ``public'' at 50 CFR 10.12. The
majority of records of import of emperor penguins into the United
States have been for this very purpose. Demand for emperor penguins
held at or captive-bred by these types of public institutions in the
United States is not substantial nor is it likely to pose a significant
threat to the wild population in Antarctica. As defined in our
regulations, ``public'' museums, zoological parks, and scientific or
educational institutions are those that are open to the general public
and are either established, maintained, and operated as a governmental
service or are privately endowed and organized but not operated for
profit.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: For scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act. As noted
above, we may also authorize certain activities associated with
conservation breeding under CBW registrations. We recognize that
captive breeding of wildlife can support conservation, for example by
producing animals that could be used for reintroductions into
Antarctica, if permitted under the ACA. We are not aware of any captive
breeding programs for emperor penguins for this purpose. The statute
also contains certain exemptions from the prohibitions, which are found
in sections 9 and 10 of the Act. This proposed 4(d) rule, if finalized,
would apply to all live and dead emperor penguin parts and products,
and support conservation management efforts for emperor penguins in the
wild.

Required Determinations

Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;

[[Page 41934]]

(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the proposed rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (42 U.S.C. 4321 et seq.) need not be prepared
in connection with listing a species as an endangered or threatened
species under the Endangered Species Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244).

References Cited

A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Branch of Delisting and Foreign Species (see FOR FURTHER INFORMATION
CONTACT).

Authors

The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Branch
of Delisting and Foreign Species.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.

0
2. Amend Sec. 17.11(h) by adding an entry for ``Penguin, emperor'' to
the List of Endangered and Threatened Wildlife in alphabetical order
under BIRDS to read as set forth below:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Birds

* * * * * * *
Penguin, emperor................. Aptenodytes forsteri Wherever found...... T [Federal Register
citation when
published as a
final rule]; 50
CFR 17.41(k).\4d\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.41 by adding a paragraph (k) to read as set forth
below:

Sec. 17.41 Special rules--birds.

* * * * *
(k) Emperor penguin (Aptenodytes forsteri). (1) Prohibitions. The
following prohibitions that apply to endangered wildlife also apply to
the emperor penguin. Except as provided under paragraph (k)(2) of this
section and Sec. Sec. 17.4 and 17.5, it is unlawful for any person
subject to the jurisdiction of the United States to commit, to attempt
to commit, to solicit another to commit, or cause to be committed, any
of the following acts in regard to this species:
(i) Import or export, as set forth for endangered wildlife at Sec.
17.21(b).
(ii) Take, as set forth for endangered wildlife at Sec.
17.21(c)(1).
(iii) Possession and other acts with unlawfully taken specimens, as
set forth for endangered wildlife at Sec. 17.21(d)(1).
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth for endangered wildlife at Sec. 17.21(e).
(v) Sale or offer for sale in foreign commerce, as set forth for
endangered wildlife at Sec. 17.21(f).
(vi) Sale or offer for sale in interstate commerce, as set forth
for endangered wildlife at Sec. 17.21(f).
(2) Exceptions from prohibitions. In regard to the emperor penguin,
you may:
(i) Sell, offer for sale, deliver, receive, carry, transport, or
ship in interstate commerce live emperor penguins from one public
institution to another public institution. For the purposes of this
paragraph, ``public institution'' means a museum, zoological park, and
scientific or educational institution that meets the definition of
``public'' at 50 CFR 10.12.
(ii) Take emperor penguins within Antarctica as authorized under
implementing regulations for the Antarctic Conservation Act of 1978 (16
U.S.C. 2401 et seq.), either in accordance with the provisions set
forth at 45 CFR 670.5 or 670.9, or as authorized by a permit under 45
CFR part 670.
(iii) Import emperor penguins into the United States from
Antarctica or export emperor penguins from the United States to
Antarctica as authorized under implementing regulations for the
Antarctic Conservation Act of 1978 (16 U.S.C. 2401 et seq.), either in
accordance with the provisions set forth at 45 CFR 670.9, or as
authorized by a permit under 45 CFR part 670.
(iv) Conduct activities as authorized by a permit under Sec.
17.32.
(v) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(vi) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(vii) Conduct activities as authorized by a captive-bred wildlife
registration under Sec. 17.21(g) for endangered wildlife.
* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-15949 Filed 8-3-21; 8:45 am]
BILLING CODE 4333-15-P