Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Proposed Rules 41917 

Bureau at (202) 418–0530 (VOICE), (202) 

418–0432 (TTY). 

This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 601– 

612, do not apply to this proceeding. 

Members of the public should note 

that all ex parte contacts are prohibited 

from the time a Notice of Proposed 

Rulemaking is issued to the time the 

matter is no longer subject to 

Commission consideration or court 

review, see 47 CFR 1.1208. There are, 

however, exceptions to this prohibition, 

which can be found in Section 1.1204(a) 

of the Commission’s rules, 47 CFR 

1.1204(a). 

See Sections 1.415 and 1.420 of the 

Commission’s rules for information 

regarding the proper filing procedures 

for comments, 47 CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television. 

Federal Communications Commission. 

Thomas Horan, 

Chief of Staff, Media Bureau. 

Proposed Rule 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICE 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 155, 301, 303, 

307, 309, 310, 334, 336, 339. 

§ 73.622 [Amended] 

■ 2. In § 73.622 in paragraph (i), amend 

the Post-Transition Table of DTV 

Allotments under Nevada by revising 

the entry for Henderson to read as 

follows: 

§ 73.622 Digital television table of 

allotments. 

* * * * * 

(i) * * * 

Community Channel No. 

* * * * * 

NEVADA 

* * * * * 

Henderson ............................ 24 

* * * * * 

[FR Doc. 2021–16589 Filed 8–3–21; 8:45 am] 

BILLING CODE 6712–01–P 

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. 

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 °S 

and 78 °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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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 Ge ́ologie 

colony in Terre Ade ́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 


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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Proposed Rules 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 chickrearing 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 Ge ́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 Ge ́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 speciesspecific 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 midcentury, late-century, and end-ofcentury (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 midcentury (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, latecentury, 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 (°C) (1.62 

degrees Fahrenheit (°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 °C (4.5 °F) since 1950 (Meredith et al. 

2019, p. 212). However, warming has 

slowed on the peninsula since the late1990s; 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 °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 


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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. 

BILLING CODE 4333–15–P 


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Figure 2. Image showing the five sectors of Antarctica: Weddell Sea (60 °W-20 °E), Indian 

Ocean sector of the Southern Ocean (20 °E-90 °E), Western Pacific Ocean sector of the Southern Ocean 

(90 °E-160 °E), Ross Sea (160 °E-130 °W), and the Bellingshausen Sea-Amundsen Sea (130 °W--o0 °W). 
41926 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Proposed Rules 

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 Ge ́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 °C and preferably to 

1.5 °C, compared to pre-industrial levels 

(United Nations 2021, unpaginated). 

The Paris Agreement goals (lowemissions 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 °C under RCP 2.6, and 1.0–2.6 °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 °C under RCP 4.5, and a second 

in which the global temperature is 

projected to increase up to 3.2 °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 °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 moderateemissions 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 Ge ́ologie in Terre 

Ade ́lie (see figure 1, colony #35) 

because the vast majority of colonies 

have not been visited or subject to longterm 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 seaice 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 lowemissions 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 moderateemissions 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 SeaAmundsen 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 highemissions 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 lowemissions 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 moderateemissions 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 highemissions 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 SeaAmundsen Sea, and Western Pacific 

Ocean sectors. The projected decline in 

the global population of emperor 

penguins is much less under the lowemissions 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 lowemissions 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. 


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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 lowand 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 highemissions 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 SeaAmundsen 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 

Ge ́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 


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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 SeaAmundsen 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 SeaAmundsen 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 SeaAmundsen 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 SeaAmundsen 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 SeaAmundsen 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 SeaAmundsen 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 


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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 SeaAmundsen 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 reimport; 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 


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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 


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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 °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; 


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(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 

■ 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. 

■ 2. Amend § 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: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations 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

* * * * * * * 

■ 3. Amend § 17.41 by adding a 

paragraph (k) to read as set forth below: 

§ 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 

§§ 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 § 17.21(b). 

(ii) Take, as set forth for endangered 

wildlife at § 17.21(c)(1). 

(iii) Possession and other acts with 

unlawfully taken specimens, as set forth 

for endangered wildlife at § 17.21(d)(1). 

(iv) Interstate or foreign commerce in 

the course of commercial activity, as set 

forth for endangered wildlife at 

§ 17.21(e). 

(v) Sale or offer for sale in foreign 

commerce, as set forth for endangered 

wildlife at § 17.21(f). 

(vi) Sale or offer for sale in interstate 

commerce, as set forth for endangered 

wildlife at § 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 § 17.32. 

(v) Take, as set forth at § 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 § 17.21(d)(2) for endangered 

wildlife. 

(vii) Conduct activities as authorized 

by a captive-bred wildlife registration 

under § 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 


lotter on DSK11XQN23PROD with PROPOSALS1