[Federal Register Volume 87, Number 206 (Wednesday, October 26, 2022)]
[Rules and Regulations]
[Pages 64700-64720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23164]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2021-0043; FF09E21000 FXES1111090FEDR 232]
RIN 1018-BF35


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the emperor penguin (Aptenodytes forsteri), a 
flightless bird species from Antarctica. This rule adds the species to 
the List of Endangered and Threatened Wildlife. We also finalize a rule 
issued under the authority of section 4(d) of the Act that provides 
measures that are necessary and advisable to provide for the 
conservation of this species.

DATES: This rule is effective November 25, 2022.

ADDRESSES: The final rule is available on the internet at https://www.regulations.gov under Docket No. FWS-HQ-ES-2021-0043. Comments and 
materials received, as well as supporting documentation we used in 
preparing this rule, are available for public inspection at https://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-

[[Page 64701]]

3803 (telephone 703-358-2171). Individuals in the United States who are 
deaf, deafblind, hard of hearing, or have a speech disability may dial 
711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that the 
emperor penguin meets the definition of a threatened species; 
therefore, we are listing it as such. Designating a species as an 
endangered or threatened species can be completed only by issuing a 
rule through the Administrative Procedure Act rulemaking process.
    What this document does. This rule lists emperor penguin 
(Aptenodytes forsteri) as a threatened species. This document also 
finalizes a rule issued under the authority of section 4(d) of the Act 
that provides measures that are necessary and advisable to provide for 
the conservation of emperor penguin.
    The basis for our action. Under the Act, we may determine that a 
species is 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 climate change (Factors A 
and E) presents the most substantial threat facing the emperor penguin. 
Other stressors on the species include tourism and research, 
contaminants and pollution, and commercial Antarctic krill fisheries 
(Factor E), but these stressors are not considered to be driving 
factors of the emperor penguin's viability now or in the foreseeable 
future.

Previous Federal Actions

    On August 4, 2021, we published in the Federal Register (86 FR 
41917) a proposed rule to list the emperor penguin as a threatened 
species under the Act (16 U.S.C. 1531 et seq.) with a rule issued under 
section 4(d) of the Act (``4(d) rule'') that provides measures that are 
necessary and advisable to provide for the conservation of emperor 
penguin. Please refer to that proposed rule for a detailed description 
of previous Federal actions concerning this species.

Summary of Changes From the Proposed Rule

    In this final rule, we make no substantive changes from the August 
4, 2021, proposed rule (86 FR 41917) after considering the comments we 
received during the comment period.

Summary of Comments and Recommendations

    In the August 4, 2021, proposed rule (86 FR 41917), we requested 
that all interested parties submit written comments on the proposal by 
October 4, 2021. We also contacted appropriate Federal agencies, 
scientific experts, and other interested parties and invited them to 
comment on the proposal. We did not receive any requests for a public 
hearing. All substantive information we received during the comment 
period has either been incorporated directly into this final 
determination or is addressed below.

Peer Reviewer Comments

    As discussed in Supporting Documents, below, we received comments 
from six peer reviewers. We reviewed all comments we received from the 
peer reviewers for substantive issues and new information regarding the 
information contained in the SSA report. The peer reviewers generally 
concurred with our methods and conclusions, and provided additional 
information, clarifications, and suggestions to improve the final SSA 
report. Peer reviewer comments are addressed in the following summary 
and were incorporated into the final SSA report as appropriate.
    Comments from peer reviewers provided general technical 
corrections, provided updates on the status of the species or sea-ice 
conditions at breeding colonies, and clarified processes that affect 
sea-ice conditions and variability around Antarctica. The most 
substantial comment from peer reviewers was that comparing the existing 
low-, moderate-, and high-emissions scenarios from the published 
literature could be difficult because the projections of the emperor 
penguin population used different modeling techniques to simulate the 
sea-ice conditions. Therefore, the SSA report includes an addendum with 
additional simulations of the emperor penguin population under existing 
Intergovernmental Panel on Climate Change (IPCC) climate-change 
scenarios using the Community Earth System Model to compare low-, 
moderate-, and high-emissions scenarios using the same modeling 
techniques (see Jenouvrier et al. 2021).

Public Comments

    We also considered all comments and information we received from 
the public during the comment period for the proposed listing of the 
emperor penguin. We did not consider comments that were outside the 
scope of this rulemaking.
Issue: Best Available Science
    Comment (1): One commenter shared their view that the Service, in 
listing the emperor penguin under the Act, is taking an advocacy 
position and using the species as a poster child for climate change. 
The commenter went on to suggest that emperor penguin populations are 
not in jeopardy and will not be so until well into the future.
    Response: Because the Service was petitioned to evaluate the status 
of the emperor penguin under the Act, we must respond to the petition 
according to the requirements in the Act and our implementing 
regulations. In doing so, we evaluated the best scientific and 
commercial information available on the present and future status of 
the emperor penguin and its habitat as required by the Act. In making a 
determination as to whether a species meets the Act's definition of an 
endangered or threatened species, section 4(b)(1)(A) of the Act states 
that the Secretary shall make the determination ``solely'' on the basis 
of the best scientific and commercial data available. Other 
considerations cannot, by law, enter into the determination.
    The emperor penguin is currently in high condition with high 
resiliency, redundancy, and representation. Emperor penguin breeding 
colonies are distributed around the continental coastline of Antarctica 
with no indication that their distribution is presently decreasing. The 
satellite record over 40 years (from 1979 to 2018) reveals that the 
sea-ice extent in the Southern Ocean is currently within its natural 
range of variability. Thus, we determined that the emperor penguin is 
not endangered. However, we determined that the emperor penguin is 
likely to become endangered in the

[[Page 64702]]

foreseeable future in a significant portion of its range, primarily 
because of climate change and the negative effect warming temperatures 
are projected to have on the fast ice that emperor penguins require for 
breeding. Therefore, our review of the best available scientific and 
commercial information indicates that the emperor penguin meets the 
Act's definition of a threatened species.
    Comment (2): One commenter stated that the best available science 
we used as our basis to propose to list the emperor penguin as a 
threatened species under the Act is the same that we used in our 
previous not-warranted finding on December 18, 2008 (73 FR 77264). The 
commenter further stated that the only difference in our analysis is 
our ability to now assess emperor penguin colony size using high-
resolution satellite imagery.
    Response: Since our 2008 assessment of the emperor penguin's 
status, a substantial amount of new scientific information has become 
available. The use of satellite imagery has greatly increased the 
ability to assess emperor penguin colony sizes and locations. 
Additionally, between the not-warranted finding published on December 
18, 2008 (73 FR 77264), and the proposed rule published on August 4, 
2021 (86 FR 41917), climate-change modeling has advanced, as has the 
ability of experts to estimate future impacts and risks of climate 
change. Experiments, observations, and models used to estimate future 
impacts and risks from climate change have improved. For Antarctica, 
newer generations of climate models continue to improve in their 
ability to represent historical sea-ice conditions, thus increasing 
confidence in model projections. Published literature modeling the 
effects of climate change on emperor penguins, as well as research 
regarding the emperor penguins' life history, dispersal capabilities, 
genetic distribution, and loss or movement of colonies has also become 
available (e.g., Jenouvrier et al. 2012, 2014, 2017, 2020; Ainley et 
al. 2010; Younger et al., 2015, 2017; LaRue et al. 2015; Cristofari et 
al. 2016). Therefore, we included new data in our analysis of the 
emperor penguin that was not available or considered in the previous 
not-warranted finding (73 FR 77264; December 18, 2008).
    Comment (3): One commenter stated that the decision to list the 
emperor penguin is based on conjecture. The commenter also stated that 
the last demographic data collected on the emperor penguin occurred at 
one colony (low latitude Pointe G[eacute]ologie) more than 20 years 
ago, no demographic data have been added since that time, and only a 
few additional studies have contributed to what we know of the foraging 
range and sea-ice habitat association of the species and of the 
species' diet.
    Response: In accordance with section 4 of the Act, we are required 
to use the best scientific and commercial data available when listing a 
species under the Act. The best available information incorporates 
demographic parameters from the population at Pointe G[eacute]ologie in 
Terre Ad[eacute]lie. This colony was monitored from 1952-2000. 
Therefore, even though the demographic data may have been collected 20 
years ago, that almost 50 years of monitoring generated the longest 
data set available on an Antarctic marine predator (Barbraud and 
Weimerskirch 2001, p. 183). Because the vast majority of colonies have 
not been visited, are not practical to visit, and likely will not be 
visited or be part of long-term studies, demographic parameters must be 
based on a reasonable extrapolation of the data from Pointe 
G[eacute]ologie to conduct a population viability analysis, given the 
absence of demographic data from the vast majority of other colonies.
    Comment (4): One commenter disputed our assessment that there has 
only been a slight increase in Antarctic sea ice observed because 
millions of square kilometers of sea ice have been added to the 
Southern Ocean since 1979, when satellites first began to monitor sea-
ice extent.
    Response: The species status assessment (SSA) report includes data 
that analyzed the changes of sea ice over a 40-year timeframe, from 
1979-2018 (Parkinson 2019, p. 14414). According to that analysis, the 
yearly sea-ice extent in the Southern Ocean, which includes the low 
sea-ice years, has a small, but statistically insignificant, positive 
trend over the 40 years from 1979-2018 (11,300 +/-5,300 square 
kilometers per year (km\2\/y)). Additionally, the SSA report includes 
the graphical representations and a brief description for each of the 
five sectors around Antarctica in which the long-term trend and yearly 
averages of sea ice (km\2\/year) are described (see Parkinson 2019, pp. 
14416-14421). The data used to assess the sea ice come from a 40-year 
multichannel passive-microwave satellite record that analyzed the 
changes in the extent and distribution of Antarctic sea ice. This 
resulted in a 40-year record covering all seasons of the year and 
observation of large-scale changes in the Southern Ocean sea-ice cover 
that would not be feasible without the satellite passive-microwave data 
(Parkinson 2019, pp. 14414-14415).
    Comment (5): One commenter said that statements about melting sea 
ice endangering the emperor penguin are misleading because wind 
determines the amount of sea ice in the Southern Ocean, and wind 
strength has been growing, leading to annual sea ice expansion. The 
commenter went on to suggest that emperor penguins evolved to live in 
an unstable habitat, and indications suggest the species has an 
unparalleled adaptability for change.
    Response: While climate change is the primary threat to the emperor 
penguin's long-term viability, we recognize that the emperor penguin's 
habitat is affected by multiple factors and complex interactions 
between the ocean and atmosphere that affect Antarctic sea ice--it is 
not as simple as ``melting sea ice.'' The SSA report discusses the 
relationship between wind and sea-ice formation (fast ice and pack 
ice), wind and polynya formation and persistence, wind affecting ice 
thickness and stability, and instances of early break up of sea ice as 
it relates to emperor penguin colonies. Because the resiliency of the 
emperor penguin at each colony is tied to the sea-ice conditions at a 
particular colony, estimates of sea-ice condition and the emperor 
penguin population are directly related. Therefore, sea ice serves as a 
proxy measure of all important habitat factors for the species. Emperor 
penguins are highly adapted for their marine environment, have existed 
over millennia, and have survived previous glacial and inter-glacial 
periods. However, the adaptive capacity of emperor penguins is unknown. 
Some colonies have been temporarily located on ice shelves as opposed 
to typical fast ice colonies, but the species has so far shown little 
evidence of adaptive capacity (Younger et al. 2015, p. entire).
    Comment (6): One commenter implied that two of the six colonies 
that were documented to have moved in recent years (LaRue et al., 2015) 
did so because they are located in the immediate neighborhood of two 
major national research bases with associated human activity and 
disturbance (Dumont d'Urville and Halley Bay).
    Response: We are not aware of any information to indicate that 
human activity at the national research bases caused emperor penguins 
to move from the Halley Bay colony and the Dumont d'Urville Station in 
Terre Ad[eacute]lie (Pointe G[eacute]ologie) colony to other nearby 
colonies. As the comment indicates, six documented cases exist of an 
entire breeding colony moving or new colonies being established for 
various reasons (LaRue et al., 2015, p. 115). The movement of emperor 
penguins from

[[Page 64703]]

the Pointe G[eacute]ologie colony is likely due to an abnormally warm 
period and the lowest sea-ice extent recorded at this location, which 
caused the population to decline by 50 percent (Barbraud and 
Weimerskirch 2001, p. 183; Jenouvrier et al., 2012, p. 2766). The 
population has stabilized since the decline and exists as a smaller 
population size compared to pre-decline population size.
    The loss of the Halley Bay colony was tied to poor sea-ice 
conditions in 2016. Sea ice broke out early and resulted in total 
breeding failure. Emperor penguins have not successfully bred at this 
colony since, because sea ice that has reformed has not been strong 
enough, and storm events occur in October and November that blow out 
the sea ice early (Fretwell and Trathan 2019, p. 3; British Antarctic 
Survey 2019, unpaginated). The Halley Bay location may remain an 
unfavorable breeding location for some time because sea-ice conditions 
are unsuitable for breeding and the Brunt Ice Shelf is likely to calve 
or break off in the future (Fretwell and Trathan 2019, p. 6; NOAA 2019, 
unpaginated). Breeding pairs have increased at nearby Dawson-Lambton 
colony because some Halley Bay colony penguins relocated due to the 
unfavorable habitat conditions (Fretwell and Trathan 2019, p. 3).
    Comment (7): A commenter stated that the Service should consider 
the first installment of the IPCC's Sixth Assessment Report (AR6) as 
the ``best available science.'' The commenter stated that the data in 
AR6, the release of which post-dates publication of the August 4, 2021, 
proposed rule, warrant reconsideration of the Service's assessments and 
findings that support the proposed rule because AR6 has a wider range 
of climate sensitivity than Coupled Model Intercomparison Project 
(CMIP) phase 5 (CMIP5) models, a higher average climate sensitivity 
than CMIP5, and the best estimates with a greater degree of confidence.
    Response: We acknowledge continued advancements in experts' ability 
to estimate future impacts and risks of climate change, with increasing 
understanding across sectors and regions using Global Circulation 
Models. Compared to CMIP5, the projections of regional sea-ice 
distribution in the models have slightly improved, and the inter-model 
spread in projected mean sea-ice area has decreased using CMIP phase 6 
(CMIP6) (Roach et al., 2020, p. 6). However, issues remain, such as 
underestimating summer minimum sea-ice area and a larger inter-annual 
variability than historically observed, as well as many individual 
models simulating implausible mean sea-ice area. Overall, the projected 
rate of change in sea-ice area is similar across the three CMIP 
generations (CMIP phase 3 (CMIP3), CMIP5, and CMIP6), and there is 
moderately higher confidence in simulations of the Antarctic climate in 
newer CMIP generations (CMIP6 compared to CMIP3; Roach et al. 2020, p. 
6). As of March 2021, most Global Circulation Model outputs were 
available for the CMIP6 coordinated experiment, published results of 
which are featured as part of AR6. However, the analysis in the SSA 
report used sea-ice projections under CMIP5 simulations, which was the 
best available information at the time we published the August 4, 2021, 
proposed rule. The simulations using CMIP5 not only projected the rate 
of change in Antarctic sea ice, but also modeled the species' response 
to the projected changes in sea ice (Jenouvrier et al. 2017, 2019, 
2020). We do not yet have models of the species response using data 
from CMIP6. Thus, the output from CMIP5 model projections that we used 
in our analysis, which includes the species response, is the more 
appropriate choice for this listing determination.
    Comment (8): A commenter claimed that certain published literature 
was not considered in the proposed rule and stated that this omission 
warrants reconsideration of the Service's analysis and findings. The 
literature includes the following: Jenouvrier et al. (2021), Jenouvrier 
et al. (2020), Trathan et al. (2015), and Klein et al. (2018).
    Response: All of the relevant information from these publications 
was considered, and the relevant information from these publications is 
cited in the SSA report. The SSA report provides the scientific basis 
that informs our regulatory decisions, which involve the further 
application of standards within the Act and its implementing 
regulations and policies.
    Comment (9): Two commenters stated that the best available science 
supports an end-of-century (2100) foreseeable future for purposes of 
assessing the likelihood that the emperor penguin will become 
endangered.
    Response: We looked at climate-change projections through the end 
of century in our analysis. In the SSA report, when applying data that 
considered multiple future-emissions scenarios to a listing context, 
the projections of the size of the global emperor penguin population 
begin to diverge around 2050, and by 2100, there is substantial 
uncertainty regarding the size of the global population, as evidenced 
by a difference of almost 150,000 pairs between the highest and lowest 
scenarios. Most of the difference between the current climate and the 
change in climate projected at the end of the century that will affect 
emperor penguin's viability will be determined by decisions made by 
policymakers today and during the next few decades. At this time, the 
uncertainty regarding the decisions that will be made by policymakers 
in the next few decades results in substantial variation between the 
projections of the emperor penguin populations at late century. 
Therefore, in this evaluation we identified mid-century (2050) as the 
foreseeable future for the threat of climate change because that is the 
period over which the projections about sea ice and the future 
condition of emperor penguins are sufficiently reliable to provide a 
reasonable degree of confidence in them, in light of the conservation 
purposes of the Act (see discussion of foreseeable future under Summary 
of Biological Status and Threats, below). Finally, changing the 
foreseeable future from 2050 to the end of the century (2100) would not 
change our finding that the emperor penguin is a threatened species 
under the Act.

Issue: Antarctic Treaty System

    Comment (10): The United States, as a Party to the Antarctic 
Treaty, should propose the emperor penguin as a ``specially protected 
species.''
    Response: This issue is outside the scope of this rulemaking.

Issue: Section 7(a)(2) of the Act

    Comment (11): Some commenters stated that section 7(a)(2) 
consultation is required for activities related to harvest of krill and 
fish caught near Antarctica in the Commission for the Conservation of 
Antarctic Marine Living Resources (Commission; CCAMLR) region and for 
seismic surveys within penguin habitat.
    Response: Whether consultation is required for activities that 
relate to the harvest of krill and fish or seismic surveys will depend 
on the application of our Section 7 implementing regulations to the 
facts and circumstances of the proposed action. 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, actions that may require 
consultation under section 7(a)(2) of the Act include harvesting 
Antarctic marine living resources and scientific research activities. 
The National Science

[[Page 64704]]

Foundation and National Marine Fisheries Service are the lead Federal 
agencies for authorizing these activities in Antarctica that may affect 
the emperor penguin. Given the existing conservation measures of the 
ACA, AMLRCA, and CCAMLR that are implemented for these activities, and 
obligations of the United States under the Antarctic Treaty System, we 
do not anticipate adverse effects to the emperor penguin (see 
discussion of section 7 under Available Conservation Measures, below).
    Activities relating to harvest and importation of krill and 
conducting seismic activities are authorized and permitted by other 
Federal agencies, namely the National Marine Fisheries Service and 
National Science Foundation. The National Marine Fisheries Service may 
issue authorizations for scientific research involving the catch of 
fish, krill, or other taxa. They have not done so in many years. 
However, in the event such research is authorized, existing permit 
requirements are in place such that the equipment is unlikely to affect 
emperor penguins. Additionally, the National Marine Fisheries Service 
may issue permits for harvesting or transshipping any Antarctic marine 
living resource, along with a high-seas fishing permit. They have not 
issued these permits in many years and do not anticipate doing so in 
the near future. However, in the instance that permits for these 
activities are issued, the National Marine Fisheries Service must 
determine that certain conditions are met, including ensuring that the 
activities do not violate the Convention on the Conservation of 
Antarctic Marine Living Resources (Convention) or any conservation 
measures in force with respect to the United States. These permits 
would also require compliance with any U.S. obligations under CCAMLR 
conservation measures.
    We are not aware of any seismic activities in Antarctica that may 
affect emperor penguins. The National Science Foundation is the Federal 
agency that manages the U.S. Antarctic Program and manages a permit 
system, in coordination with appropriate agencies, and issues permits 
under the Antarctic Conservation Act of 1978 (ACA; 16 U.S.C. 2401 et 
seq.) for certain, otherwise prohibited activities. Permits 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 (see 16 U.S.C. 2404(e)(2)). Seismic 
surveys that may affect emperor penguins falls under the third 
condition (e.g., scientific studies) and would require a permit.
    In the 4(d) rule, we provide exceptions for certain otherwise 
prohibited activities that are permitted by the National Science 
Foundation. Importing Antarctic marine living resources and conducting 
seismic surveys would require authorizations and permits from the 
National Marine Fisheries Service and National Science Foundation, 
respectively. In the event such activities are authorized, the activity 
is anticipated to occur over a relatively brief time with negligible 
likelihood of interactions with emperor penguins. Additionally, these 
authorizations and permits are expected to have no measurable effects 
on emperor penguins because of existing processes and permit 
requirements in place under the ACA, AMLRCA, the Convention, and 
CCAMLR. Interactions with emperor penguins will be reported if they 
occur.

Issue: 4(d) Rule

    Comment (12): One commenter recommended that the 4(d) rule include 
additional protective regulations to address climate change driven by 
greenhouse gas (GHG) emissions, which, the commenter stated, is the 
primary threat to emperor penguin survival and recovery.
    Response: Our 4(d) rule applies all the section 9(a)(1)(A) 
prohibitions to emperor penguin, with certain narrowly tailored 
exceptions that are unrelated to GHG emissions. The commenter is 
correct that the threat of climate change driven by GHG emissions is 
the primary threat to emperor penguin survival and recovery, and that 
4(d) of the Act requires the Secretary to issue such regulations as she 
deems necessary and advisable to provide for the conservation of the 
species. However, based on the best scientific data available we are 
unable to draw a causal link between the effects of specific GHG 
emissions and take of the emperor penguin in order to promulgate more 
specific regulations under 4(d).
    Comment (13): One commenter recommended that the 4(d) rule 
incorporate all of the prohibitions against ``take'' found in section 9 
of the Act in order to address all future threats to emperor penguins 
that were identified, specifically from fishing, shipping, resource 
exploitation, and other commercial activities.
    Response: The 4(d) rule does prohibit take of emperor penguins. The 
4(d) rule prohibits 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 the emperor penguin, except as otherwise authorized or permitted: 
Importing or exporting; take; possession and other acts with unlawfully 
taken specimens; delivering, receiving, carrying, transporting, or 
shipping in interstate or foreign commerce in the course of commercial 
activity; and selling or offering for sale in interstate or foreign 
commerce. The prohibition of take of emperor penguins applies to any 
person under the jurisdiction of the United States within the United 
States, the territorial sea of the United States, or upon the high 
seas. The 4(d) rule provides certain exceptions to the prohibitions, 
and authorizes permits in some circumstances to allow otherwise 
prohibited take, as discussed in the proposed rule and in this final 
rule below (see Provisions of the 4(d) Rule, below).

Issue: Paris Agreement

    Comment (14): One commenter stated that the proposed rule fails to 
consider the Paris Agreement as a ``regulatory mechanism'' or a 
``conservation measure'' under the Act.
    Response: The Paris Agreement is an international treaty on climate 
change. It was adopted by 196 Parties at the Conference of the Parties 
(CoP) 21 to the United Nations Framework Convention on Climate Change 
in Paris, on December 12, 2015, and entered into force on November 4, 
2016. The United States officially rejoined the agreement on February 
19, 2021. In our August 4, 2021, proposed rule (86 FR 41917), we 
considered scenarios simulated to reach the goals of the Paris 
Agreement (where the global temperature stabilizes below 2.0 degrees 
Celsius ([deg]C), and preferably at 1.5 [deg]C, above preindustrial 
levels by the end of the century) as our reasonable best-case scenario 
of the global emperor penguin population projected into the future. In 
this way, our analysis analyzed the effect of the Paris Agreement as a 
conservation measure and regulatory mechanism.
    Comment (15): One commenter stated that because of the likelihood 
that global policymakers will take no action to reduce GHG emissions, 
the Service should consider the ``worst-case scenarios'' (global 
warming in excess of 4.3 [deg]C) when analyzing climate-change effects 
on the emperor penguin using an end-of-century foreseeable future.

[[Page 64705]]

    Response: We considered multiple future projections of emperor 
penguins and sea-ice habitat based on emissions scenarios analyzed 
under the Coupled Model Intercomparison Project (CMIP), which is the 
primary source of climate information used to project impacts of GHG 
emissions. Therefore, to assess the current and future conditions of 
the emperor penguin, and to account for uncertainty in modeled 
projections, we considered projections that included low- and moderate-
emissions scenarios, as well as a high-emissions scenario that 
simulated global warming up to 4.8 [deg]C. While some experts argue for 
differential likelihoods for individual scenarios in published 
literature, each scenario pathway trajectory through 2100 is plausible 
(Terando et al. 2020, pp. 10-11).
Issue: Critical Habitat
    Comment (16): One commenter asked if critical habitat will be 
designated for the emperor penguin.
    Response: No critical habitat will be designated for the emperor 
penguin. Under our regulations at 50 CFR 424.12(g), we do not designate 
critical habitat within foreign countries or in other areas outside of 
the jurisdiction of the United States.

Supporting Documents

    A species status assessment (SSA) report was prepared for the 
emperor penguin, which 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. We sought the expert 
opinions of six independent and knowledgeable specialists regarding the 
SSA report and received responses from all six reviewers. These peer 
reviewers generally concurred with our methods and conclusions, and 
provided additional information, clarifications, and suggestions to 
improve the SSA report. We also considered all comments and information 
we received from the public during the comment period for the proposed 
listing of emperor penguin.

I. Final Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
emperor penguin is presented in the SSA report (version 1; Service 
2021, pp. 2-27; available at https://www.regulations.gov under Docket 
No. FWS-HQ-ES-2021-0043).
    The emperor penguin is endemic to Antarctica, and the tallest and 
heaviest of all living penguin species. The species breeds mainly on 
fast ice, which is sea ice attached or ``fastened'' to the coast, and 
has a pan-Antarctic distribution, meaning the species occurs around the 
entire continental coastline of Antarctica. Given the influence that 
weather and climate have in affecting the extent and duration of sea 
ice where the emperor penguin breeds and, relatedly, prey abundance 
around Antarctica, climate change is the most substantial potential 
threat facing the species.
    As of 2020, 61 emperor penguin breeding colonies are extant. Of the 
66 total known colonies, 4 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. 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 1, 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 birds relative to the 
other three sectors.
BILLING CODE 4333-15-P

[[Page 64706]]

[GRAPHIC] [TIFF OMITTED] TR26OC22.010

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 ovals 
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).

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, 
issuing protective regulations for threatened species, and designating 
critical habitat for threatened and endangered species. In 2019, 
jointly with the National Marine Fisheries Service, the Service issued 
final rules that revised the regulations in 50 CFR parts 17 and 424 
regarding how we add, remove, and reclassify threatened and endangered 
species and the criteria for designating listed species' critical 
habitat (84 FR 45020 and 84 FR 44752; August 27, 2019). At the same 
time the Service also issued final regulations that amended the 
Service's general protective regulations to no longer automatically 
apply to species listed as threatened species after September 26, 2019 
the prohibitions that section 9(a) of the Act applies to endangered 
species (collectively, the 2019 regulations).
    As with the proposed rule, we are applying the 2019 regulations for 
this final rule because the 2019 regulations are the governing law just 
as they were when we completed the proposed rule. Although there was a 
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations 
therefore governed, the 2019 regulations are now in effect and govern 
listing and critical habitat decisions (see Center for Biological 
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July 
5, 2022) (CBD v. Haaland) (vacating the 2019 regulations and thereby 
reinstating the pre-2019 regulations)) and In re: Cattlemen's Ass'n, 
No. 22-70194 (9th Cir. Sept. 21, 2022) (staying the vacatur of the 2019 
regulations and thereby reinstating the 2019 regulations until a 
pending motion for reconsideration before the district court is 
resolved)). However, given that litigation remains regarding the 
court's vacatur of those 2019 regulations, we also undertook an 
analysis in a separate memo of whether the decision would be different 
if we were to apply the pre-2019 regulations. We hereby adopt the 
analysis in the separate memo, and we conclude that, for the reasons 
stated in the memo analyzing the 2019 and pre-2019

[[Page 64707]]

regulations, the final rule would have been the same if we had applied 
the 2019 or pre-2019 regulations. The analysis based on the 2019 and 
pre-2019 regulations is included in the decision file for this 
decision.
    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 in 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 
Services 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 prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    We considered time horizons at mid-century, late-century, and end-
of-century (2050, 2080, 2100) for analyzing the future condition of 
emperor penguins. When applying the best available information to a 
listing context in considering what the foreseeable future for emperor 
penguins is, the projections of the global emperor penguin population 
begin to diverge around 2050. At 2050, population projections from all 
scenarios are within 50,000 breeding pairs of each other (see figure A2 
in the SSA report (Service 2021, p. 83)). The differences in population 
estimates increases to approximately 150,000 breeding pairs by 2100, 
with the 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 based on plausible global emissions trajectories 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.
    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 reasonably 
reliable predictions. In contrast, at the 2050 time horizon the 
Service's projections about sea-ice conditions and the response of 
emperor penguins have sufficient certainty to provide a reasonable 
degree of confidence, in light of the conservation purposes of the Act. 
Therefore, in this evaluation, we identified mid-century (2050) as the 
foreseeable future for the threat of climate change because that is the 
period over which we can make reliable predictions about the threats 
and the species' response to those threats. ``Reliable'' does not mean 
``certain''; it means sufficient to provide a reasonable degree of 
confidence in the prediction. Thus, a prediction is reliable if it is 
reasonable to depend on it when making decisions. Under this approach, 
since climate change and the related threats that it triggers--such as 
increases in air and sea temperatures that negatively affect sea-ice 
habitat and prey abundance in Antarctica--are still the most 
substantial threat to emperor penguins in the future, we evaluate how 
far into the future we can make reliable predictions about climate 
change, related increases in air and sea temperatures, consequent 
reductions in prey, and the responses of emperor

[[Page 64708]]

penguins to these threats. 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. We determined that 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 are too uncertain for us to make reliable 
predictions. In contrast, at the 2050 time horizon, the Service can 
reasonably determine that both the future threats and the species' 
response to those threats are likely. Therefore, we identified mid-
century (2050) as the foreseeable future for the threat of climate 
change because that is the period over which we can make reliable 
predictions as to sea ice and the future condition of emperor penguins. 
As noted above, the analysis based on the 2019 and pre-2019 
regulations, including our foreseeable future analysis, is included in 
the decision file for this decision.

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 species should be listed as an endangered or 
threatened species under the Act. It does, however, 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 https://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, 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, to assess the species' overall viability 
and the risks to that viability.

Species Needs/Ecological Requirements

    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.
    The species hunts opportunistically and shifts foraging strategies 
relative to prey abundance and distribution. The life histories of 
emperor penguins and their primary prey species (e.g., Antarctic 
silverfish and Antarctic krill) are tied to the sea-ice environment, 
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 the emperor penguin's life history and habitat needs, 
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 not considered to be driving factors of the 
emperor penguin's viability now or in the future. 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

    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 is one of the fastest warming places on 
Earth, warming 2.5 [deg]C (4.5 [deg]F) since 1950 (Meredith et al. 
2019, p. 212). However, warming has slowed on the peninsula since the 
late-1990s; this variability is within the bounds of large natural 
decadal-scale regional climate variability (Turner et al. 2016, p. 7; 
Stroeve 2021, pers. comm.). 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). Refer to the SSA report (Service 2021, pp. 28-40) 
and the August 4, 2021, proposed rule (86 FR 41917) for general 
climate-change-related information.
    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 threat facing 
emperor penguins. Changes in sea-ice conditions, due to climate change, 
are 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,

[[Page 64709]]

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 is 
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, which is 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, and rapid ice-shelf collapse attributed to 
warmer air and water temperatures, as well as increased melt on the ice 
surface, 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. 31, 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. This could result 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 insufficient time series data (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 
because the penguin's breeding success is highly dependent on its 
foraging success, subsequent distresses to the food web because of 
changes in sea ice increase the risk to emperor penguins over the long 
term.

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) (see figure 2, below), which may 
approximately correspond to the known genetic variation among colonies 
and the Southern Ocean as a whole.
BILLING CODE 4333-15-P

[[Page 64710]]

[GRAPHIC] [TIFF OMITTED] TR26OC22.011

BILLING CODE 4333-15-C
Figure 2. Image showing the five sectors of Antarctica: Weddell Sea (60 
[deg]W-20 [deg]E), Indian Ocean sector of the Southern Ocean (20 
[deg]E-90 [deg]E), Western Pacific Ocean sector of the Southern Ocean 
(90 [deg]E-160 [deg]E), Ross Sea (160 [deg]E-130 [deg]W), and the 
Bellingshausen Sea-Amundsen Sea (130 [deg]W-60 [deg]W).

    Of the 66 total known colonies in 2020, 61 emperor penguin breeding 
colonies are extant, 4 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, 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

[[Page 64711]]

representation. Sixty-one breeding colonies are distributed around the 
coastline of Antarctica with no indication that their distribution has 
decreased or is presently decreasing. The number of known breeding 
colonies has increased over time, because the use of satellite imagery 
has improved the ability to locate colonies and roughly estimate 
population sizes at colonies. Catastrophic events may include iceberg 
calving, ice-shelf disintegration, and storm events. However, if a 
catastrophic event occurs, it only affects a small proportion of the 
total breeding colonies at any one time, and the displaced penguins try 
to return to that same breeding location or relocate to another nearby 
colony. Breeding colonies within the four known metapopulations have 
some degree of connectivity among metapopulations and very high 
connectivity between breeding colonies within each of the 
metapopulations. Two of the four metapopulations are in East Antarctica 
(Mawson Coast and Amanda Bay/Point G[eacute]ologie metapopulations), 
while the other two are the Weddell Sea metapopulation and the Ross Sea 
metapopulation (Younger et al. 2017, p. 3892). There has been no loss 
of the known metapopulations.

Future Condition

    The interaction of demographic processes of reproduction and 
survival drives the population dynamics of the emperor penguin, which 
are all related to the sea-ice environment. Therefore, to project the 
long-term viability of emperor penguin, the sea-ice extent and/or 
concentration and how it relates to the emperor penguin's long-term 
demographics has been modeled under different climate-change scenarios 
(Ainley et al. 2010, entire; Jenouvrier et al. 2009, 2012, 2014, 2017, 
2020). The research into emperor penguin populations and their habitat 
conditions uses an ensemble of climate models based on changes in sea 
ice into the future that is founded on standard climate modeling 
efforts (e.g., Ainley et al. 2010; Jenouvrier et al. 2009, 2012, 2014, 
2017, 2020; Melillo et al. 2014).
    The future scenarios for population projections of emperor penguins 
are based on climate-change-model projections following available IPCC 
scenarios using Global Circulation Models driven by Special Report on 
Emissions Scenarios (SRES) and by RCP scenarios.
    Modeling efforts projected sea-ice conditions and the emperor 
penguin's response under low-, moderate-, and high-emissions scenarios. 
The Paris Agreement set a goal to limit global warming to below 2 
[deg]C and preferably to 1.5 [deg]C, compared to pre-industrial levels 
(United Nations 2021, unpaginated). The Paris Agreement goals (low-
emissions scenario) do not represent or equate to any RCP scenario; 
they are uniquely designed to meet the global-temperature-change 
targets set in the Paris Agreement (Sanderson and Knutti 2016, in 
Jenouvrier et al. 2020, p. 1; Sanderson et al. 2017, p. 828). The 
global temperature is likely to increase 0.3-1.7 [deg]C under RCP 2.6, 
and 1.0-2.6 [deg]C under RCP 4.5 (IPCCb 2019, p. 46). Therefore, based 
strictly on the projected increase in global temperature, the Paris 
Agreement goals would fall within the projected range of RCP 2.6 and 
RCP 4.5 projections. Thus, we view the two projections aligned with the 
Paris goals collectively as one low-emissions scenario. We also 
evaluated two moderate-emissions scenarios: one in which the global 
temperature is projected to increase up to 2.6 [deg]C under RCP 4.5, 
and a second in which the global temperature is projected to increase 
up to 3.2 [deg]C by the end of the century (SRES A1B). Finally, we 
evaluated a high-emissions scenario (RCP 8.5) where global temperature 
is projected to increase up to 4.8 [deg]C (IPCC 2019b, p. 46).
    Given the complexities of Global Circulation Models and 
advancements in technology, models typically build upon previous 
efforts. The modeling for the global population of emperor penguins and 
sea-ice conditions was initially run under scenario SRES A1B in Coupled 
Model Intercomparison Project phase 3 (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 phase 5 (CMIP5; Melillo et al. 
2014, p. 755). As newer models were developed, and experts learned more 
about emperor penguin dispersal behavior and discovered more colonies 
that increased the global population size, the modeling efforts were 
refined to account for additional colonies and inter-colony dispersal 
behaviors. Additionally, the most recent projections for the emperor 
penguin include simulations that account for extreme or catastrophic 
events occurring in Antarctica (Jenouvrier et al. 2021, in litt.).
    The Community Earth System Model Large Ensemble project was used in 
the most recent modeling efforts to simulate the sea-ice conditions, 
building upon the initial efforts of the moderate-emissions scenario 
SRES A1B, which used models that contributed to CMIP3. The Community 
Earth System Model contributed to CMIP5 and was included in the IPCC 
fifth assessment report (Jenouvrier et al. 2020, pp. 3-4). The sea-ice 
models relied on for the SSA report represent the best available 
scientific data.
    The demographic parameters for emperor penguin used for all 
colonies are based on, and extrapolated from, the population at Pointe 
G[eacute]ologie in Terre Ad[eacute]lie (see figure 1 (above), colony 
#35) because the vast majority of colonies have not been visited and 
likely will not be visited or be part of long-term studies. Sea-ice 
condition is projected to decrease in Antarctica, and emperor penguins 
will likely need to disperse or attempt to disperse as colonies are 
disrupted or lost due to sea-ice instability. The simulations in the 
latest 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

[[Page 64712]]

until 2050, while the median global population is projected to decline 
by 19 to 33 percent by 2100 (Jenouvrier et al. 2014a, p. 716; 
Jenouvrier et al. 2014b, p. 28). We note this projection is at 2100, 
and we do not have an estimate of the global population or population 
size within each sector at 2050. Under the other moderate-emissions 
scenario, RCP 4.5, the global population is projected to decline by 33 
percent by 2050 (to approximately 167,000 breeding pairs; Jenouvrier et 
al. 2021, in litt.). Similar to the projections under the low-emissions 
scenario, the declines are not equal around the continent. The Ross Sea 
and Weddell Sea experience the smallest decrease in breeding pairs. 
However, even high-latitude colonies in the Ross Sea and Weddell Sea 
are not immune to changes in sea-ice condition under this scenario 
(Jenouvrier et al. 2014, entire; Schmidt and Ballard 2020, pp. 183-
184). The vast majority, and possibly all, colonies in the Indian 
Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean 
sectors are projected to decline by more than 90 percent. Two important 
differences in the results of the two moderate-emissions scenarios are 
noteworthy: the projections under SRES A1B were modeled using a 
different model and method than all the other scenarios, and the 
projections under RCP 4.5 include demographic factors of dispersal and 
extreme events while SRES A1B projections do not. Dispersal behaviors 
may accelerate, slow down, or reverse the anticipated rate of 
population decline of emperor penguins, compared to the population 
projection without dispersal considered, but this 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 penguins is projected to decline 47 percent by 2050 (to 
approximately 132,500 breeding pairs; Jenouvrier et al. 2021, in 
litt.). Similar to the low- and moderate-emissions scenarios, the 
declines are not equal around the continent. However, the population 
decline is greater in magnitude under the high-emissions scenario. The 
few colonies that are projected to remain occur in the Ross Sea and 
Weddell Sea. The breeding colonies in the Indian Ocean, Bellingshausen 
Sea-Amundsen Sea, and Western Pacific Ocean sectors are projected to 
decline by more than 90 percent.

Resiliency, Redundancy, and Representation

    The two most resilient sectors of Antarctica are first the Ross Sea 
and then the Weddell Sea under every emissions scenario. The breeding 
colonies in these sectors are projected to have the highest resiliency 
because these areas are likely to have the most stable long-term sea-
ice conditions. The breeding colonies in the Indian Ocean sector are 
projected to be the least resilient, and experience the largest 
population declines and sea-ice decrease and variability under every 
scenario. The Bellingshausen Sea-Amundsen Sea sector is also projected 
to have low resiliency. Projected declines in the Western Pacific Ocean 
sector are more complex and vary according to emissions scenario; 
however, the colonies in this sector also markedly decline. Under the 
high-emissions scenario RCP 8.5, the vast majority of breeding colonies 
throughout the range decline significantly by 2050, resulting in the 
Ross Sea and Weddell Sea serving as the last refuges for the species.
    Redundancy is higher under the low-emissions scenario than under 
the moderate- and high-emissions scenarios because more colonies remain 
extant under the low-emissions scenario. Under the high-emissions 
scenario, the colonies in the three least resilient sectors (Indian 
Ocean, Bellingshausen Sea-Amundsen Sea, and the Western Pacific Ocean) 
are predicted to decline substantially, if not disappear entirely, 
whereas under the other emissions scenarios some colonies are predicted 
to decline less appreciably in East Antarctica and in West Antarctica 
depending on the scenario. Including extreme events into the 
simulations increases the magnitude of declines at breeding colonies 
throughout the range under every scenario.
    Representation is similar to redundancy in that it decreases as the 
distribution of the species declines. The emperor penguin is predicted 
to lose genetic diversity under every scenario because the overall 
population abundance is projected to decline. Under the low-emissions 
scenario with projections that do not include dispersal or extreme 
events, no known metapopulations are lost, although colonies that make 
up the two metapopulations in East Antarctica are projected to decline. 
However, when including dispersal and extreme events, both of the 
metapopulations in East Antarctica along with many other colonies in 
East Antarctica and in the Bellingshausen Sea-Amundsen Sea sector for 
which genetics have not been analyzed are projected to decline by more 
than 90 percent by 2050.
    Projections under the moderate-emissions scenarios show a similar 
pattern with an increase in magnitude of decline, which would also 
likely result in the loss of the two metapopulations in East 
Antarctica. Emperor penguins may migrate to the Ross Sea or Weddell 
Sea, where some habitat is projected to remain suitable as habitat 
quality declines in the other sectors. However, the colonies that 
remain will likely reach carrying capacity, and some colonies provide 
little potential for population expansion (Jenouvrier et al. 2014, p. 
716).
    Under the high-emissions scenario, the emperor penguin would 
increasingly lose genetic diversity, because of declines not only in 
the Mawson Coast and Amanda Bay/Point G[eacute]ologie metapopulations, 
but also in the Weddell Sea and Ross Sea sectors, which account for the 
other two known metapopulations. Colonies within these two 
metapopulations would decrease in redundancy over time, thus reducing 
the genetic variation within the two metapopulations. The Ross Sea may 
be the last stronghold for the species, but even the number of breeding 
colonies in the Ross Sea have the potential to decline under the high-
emissions scenario. Therefore, the genetic diversity of emperor 
penguins will substantially decrease under the high-emissions scenario 
because the vast majority of all colonies are likely to decline by more 
than 90 percent, or disappear entirely.

Summary

    The emperor penguin is currently in high condition because the 
species has high resiliency, redundancy, and representation. Sixty-one 
breeding colonies are distributed around the coastline of Antarctica 
with no indication that there has been a decrease in their range or 
distribution. Colony size naturally fluctuates, and reproductive 
success varies from year to year at breeding colonies in relation to 
both biotic and abiotic factors, but 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

[[Page 64713]]

larger, opposing regional differences in trends. The emperor penguin's 
main prey resources are directly related to sea-ice conditions. 
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 on the magnitude 
of global climate change. The magnitude of climate change into the 
future depends in part on the amount of heat-trapping gases emitted 
globally and how sensitive the Earth's climate is to those emissions, 
as well as any human responses to climate change by developing 
adaptation and mitigation policies.
    Under all scenarios, sea-ice extent and the global population of 
emperor penguins are projected to decline in the future; however, the 
degree and speed of the decline varies substantially by scenario. 
Accordingly, the resiliency, redundancy, and representation of the 
emperor penguin will also decrease across all scenarios. The rate and 
magnitude of decline of the sea-ice conditions and the number of 
breeding pairs and colonies of emperor penguins varies between 
scenarios, temporally and spatially. Breeding colonies in the Ross Sea 
and Weddell Sea sectors, the current strongholds for the species, are 
projected to retain the most resiliency and have the most stable sea-
ice conditions into the future, relative to the Indian Ocean, 
Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean sectors. The 
projected decline in the global population of emperor penguins is much 
less under the low-emissions scenario (i.e., the scenarios that model 
the Paris Accord) than under the high-emissions scenario (i.e., RCP 
8.5). Similarly, redundancy and representation are higher under the 
low-emissions scenarios compared to the high-emissions scenario because 
more colonies are projected to be extant. Redundancy and representation 
decline at a faster rate than resiliency because the Ross Sea and 
Weddell Sea sectors contain at least half the global population, have a 
greater initial population abundance compared to the other three 
sectors, and are projected to have higher-quality sea-ice habitat over 
a longer time period. These two sectors, and particularly the Ross Sea, 
are strongholds for the species under every scenario, as the other 
sectors markedly decline because sea-ice conditions deteriorate.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative-effects analysis.

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 nongovernmental 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 (ACA; 
16 U.S.C. 2401 et seq.) also provides for the conservation and 
protection of the fauna and flora of Antarctica (defined to mean the 
area south of 60 [deg]S latitude (16 U.S.C. 2402(2))), and of the 
ecosystem upon which those fauna and flora depend, consistent with the 
Antarctic Treaty System 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; CCAMLR), provides for the conservation, 
including 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 also 
having acceded (Commission 2020, unpaginated). The United States 
implements the Convention 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

[[Page 64714]]

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 
nongovernmental 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.

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 endangered species 
or 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.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we find that climate change presents the most substantial 
threat to emperor penguin's viability. 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. Finally, the species is not subject to any imminent threats 
that would otherwise render it in danger of extinction.
    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 condition 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 conditions. 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 because the current condition of the 
species is high, and we do not anticipate that any combination of 
threats could imminently change that situation. We then turned our 
attention to determining whether the emperor penguin is likely to 
become in danger of extinction throughout all of its range within the 
foreseeable future.
    We determined that the foreseeable future is 2050 for this 
rulemaking (see Foreseeable Future, above). 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. The 
resiliency of penguin colonies in the Ross Sea and Weddell Sea sectors 
is sufficient to ensure that the species as a whole is not in danger of 
extinction in the foreseeable future. Redundancy and representation 
decline at a faster rate than resiliency as the colonies in the other 
sectors (Indian Ocean, Western Pacific Ocean, and Bellingshausen Sea-
Amundsen Sea) markedly decline because sea-ice conditions are projected 
to deteriorate more rapidly in those areas. 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, which contain two of the four known metapopulations (Weddell 
Sea and Ross Sea metapopulations) and are the two most resilient 
sectors.
    The global population at 2050 is projected to decline between 26 
percent (to approximately 185,000 breeding pairs) and 47 percent (to 
approximately 132,500 breeding pairs) under the low- and high-emissions 
scenarios, respectively. The global population would be large enough 
and retain sufficient viability so that the species would not be in 
danger of extinction by 2050, because the breeding pairs remaining 
include at least 50 percent of the global breeding pairs, even under 
the high-emissions scenario. That said, the distribution of the species 
will be reduced by 2050 because most, and possibly all, colonies and 
breeding pairs will be limited to the Weddell Sea and Ross Sea sectors; 
almost the entire decline of breeding pairs is because of the loss of 
breeding colonies in the Indian Ocean, Bellingshausen Sea-Amundsen Sea, 
and Western Pacific Ocean sectors. However, enough breeding colonies 
would be extant in the Weddell Sea and Ross Sea to withstand localized 
stochastic and catastrophic events. The ecological diversity of emperor 
penguins will be reduced because the decrease in distribution of 
breeding colonies results in the loss of the colonies that make up the 
two metapopulations in East Antarctica (Mawson Coast and Amanda Bay/
Point G[eacute]ologie metapopulations), and many other colonies in East 
Antarctica and in the Bellingshausen Sea-Amundsen Sea sector for which 
breeding colony genetics have not been analyzed. The genetic diversity 
from those two metapopulations would be maintained but is likely to 
shift to the Weddell Sea and Ross Sea sectors because emperor penguins 
from East Antarctica and the Bellingshausen Sea-Amundsen Sea sector are 
likely to disperse to the Weddell Sea and Ross

[[Page 64715]]

Sea sectors, which contain the other two metapopulations with genetic 
and ecological diversity and are the strongholds for the species. The 
Weddell Sea and Ross Sea sectors 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 sufficiently large, and enough colonies 
will be extant in the Weddell Sea and Ross Sea, such that the species 
as a whole will not likely 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 
in the foreseeable future throughout all or a significant portion of 
its range. We 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. Therefore, we proceed to evaluating 
whether the species is endangered 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 both (1) 
the portion is significant; and (2) the species is in danger of 
extinction in that portion, or likely to become so in 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 that we address, 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 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 now consider whether there are any significant portions of the 
species' range where the species is endangered or likely to become so 
in the foreseeable future. In undertaking this analysis for the emperor 
penguin, 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.
    For emperor penguin, we considered whether the threat of climate 
change is geographically concentrated in any portion of the species' 
range at a biologically meaningful scale. Climate change is not 
projected to have a uniform effect around the entire continent of 
Antarctica; the rate and magnitude of decline of sea-ice conditions and 
breeding colonies vary temporally and spatially. It is in this context 
that we considered the concentration of threats of climate change to 
the emperor penguin.
    We found that climate change is projected to substantially affect 
the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific 
Ocean sectors under every modeled emissions scenario within the 
foreseeable future. The Ross Sea and Weddell Sea sectors are considered 
strongholds for the species now and into the foreseeable future because 
they have the most stable long-term sea-ice condition. However, 
projections under low-, moderate-, and high-emissions scenarios result 
in a substantial decline of the breeding colonies and sea-ice condition 
in the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western 
Pacific Ocean sectors. By 2050, the colonies within these three sectors 
decline rather quickly and are projected to decline by at least 50 
percent, with the vast majority projected to decline by more than 90 
percent under every scenario.
    Currently, breeding colonies are distributed along the entire 
coastline of Antarctica with no gaps larger than 500 kilometers (311 
miles) between colonies, except in front of large ice shelves (see 
figure 1, above). By 2050, the global population of emperor penguins is 
projected to decline between 26 percent (to approximately 185,000 
breeding pairs) and 47 percent (to approximately 132,500 breeding 
pairs); however, almost the entire decline of global breeding pairs is 
because of the loss of breeding colonies in the Indian Ocean, 
Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean sectors. 
This results in a substantial decline of the population and 
distribution of breeding colonies in these three sectors. Therefore, 
because climate change is projected to affect the Indian Ocean, 
Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean sectors of 
the species' range more than the Ross Sea and Weddell Sea sectors, 
resulting in a substantial decline of the breeding colonies in these 
three sectors, the species may be in danger of extinction or likely to 
become so within the foreseeable future in this portion of its range.
    We first considered whether the species was endangered in the 
Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific 
Ocean portion of the species' range. The emperor penguin is currently 
in high condition throughout its range (see Status Throughout All of 
Its Range, above). Therefore, the emperor penguin within these three 
sectors of its range is also currently in high condition, and the best 
scientific and commercial data available indicates that this portion of 
its range currently has sufficient resiliency, redundancy, and 
representation to be secure in its current state. The species is not 
subject to any imminent threats in this portion of its range that would 
otherwise render it in danger of extinction. Therefore, the emperor 
penguin is not currently in danger of extinction (endangered) in that 
portion of its range.
    However, while the divergence in global population projections 
between the scenarios becomes more evident around 2050, under every 
scenario the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western 
Pacific Ocean sectors are projected to substantially decline within the 
foreseeable future. The decline in the global population is almost 
entirely attributed to the decline of sea-ice conditions and loss of 
breeding colonies in the Indian Ocean, Bellingshausen Sea-Amundsen Sea, 
and Western Pacific Ocean sectors. By 2050, breeding colonies within 
these three sectors decline by at least 50 percent, with the vast 
majority projected to decline by more than 90 percent. Therefore, the 
emperor penguin in the Indian Ocean, Bellingshausen Sea-Amundsen Sea, 
and Western Pacific Ocean sectors will have minimal to no resiliency, 
distribution of breeding colonies, or genetic and ecological diversity 
because very few colonies and breeding pairs are projected to remain in 
this portion of the species' range by 2050. Thus, the species is likely 
to become in danger of extinction within the foreseeable future in the 
Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific 
Ocean sectors.

[[Page 64716]]

    We then proceeded to ask the question whether the portion of the 
range including the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and 
Western Pacific Ocean sectors is significant. We assessed whether this 
portion of the species' range is biologically significant by 
considering it in terms of the portion's contribution to resiliency, 
redundancy, or representation of the species as a whole.
    The Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western 
Pacific Ocean sectors account for 40 to 50 percent of the global 
population, approximately 60 percent of the species' range and total 
number of known breeding colonies, and 50 percent of the known genetic 
diversity. Ecological diversity between breeding colonies in the Indian 
Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean 
sectors include breeding location (sea ice vs. ice shelf), distance to 
open water, exposure to katabatic winds (cold, dense air flowing out 
from interior Antarctica to the coast), and amount of snowfall. 
Breeding colonies within the Indian Ocean, Bellingshausen Sea-Amundsen 
Sea, and Western Pacific Ocean sectors provide connectivity between 
colonies within the metapopulations and among the metapopulations in 
different sectors. Currently, it is likely that all breeding colonies 
are connected because the average distance between colonies of 311 
kilometers +/- 176 kilometers, with no gaps between colonies throughout 
the species' range greater than 500 kilometers except in front of large 
ice shelves, is well within the distance that emperor penguins can 
travel/disperse. The fact that emperor penguins travel widely as 
juveniles, move among breeding colonies, and share molting locations 
indicates that dispersal between breeding colonies provides gene flow 
among colonies (Thiebot et al. 2013, entire; Younger et al. 2017, p. 
3894). If there were minimal to no breeding colonies (as projected) in 
the Indian Ocean, Bellingshausen Sea-Amundsen Sea, and Western Pacific 
Ocean sectors, the distance between colonies would substantially 
increase and reduce the probability that all colonies are connected and 
provide gene flow among colonies. Additionally, the diversity of the 
species and its habitat would substantially decrease because the vast 
majority of colonies that would remain (as projected) would only be in 
the Ross Sea and Weddell Sea sectors. The Indian Ocean, Bellingshausen 
Sea-Amundsen Sea, and Western Pacific Ocean sectors contribute 
significantly to the emperor penguin's global population size 
(resiliency), global distribution around the entire coastline of 
Antarctica (redundancy), and genetic and ecological diversity 
(representation) of the species as a whole, and the conservation of the 
species would suffer the loss of these significant contributions if 
these sectors were lost. We conclude that the Indian Ocean, 
Bellingshausen Sea-Amundsen Sea, and Western Pacific Ocean sectors 
collectively constitute a significant portion of the range of the 
emperor penguin.
    Therefore, having determined that the Indian Ocean, Bellingshausen 
Sea-Amundsen Sea, and Western Pacific Ocean sectors (or portion of the 
species' range) do indeed meet both prongs of the significant-portion-
of-its range analysis (1) the portion is significant; and (2) the 
species is, in that portion, likely to become in danger of extinction 
within the foreseeable future), we conclude that the emperor penguin is 
likely to become 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 Act's 
definition of a threatened species. Therefore, we are listing the 
emperor penguin as a threatened species in accordance with sections 
3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    The purposes of the Act are to provide a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved, to provide a program for the conservation of such 
endangered species and threatened species, and to take such steps as 
may be appropriate to achieve the purposes of the treaties and 
conventions set forth in the Act. Under the Act there are a number of 
steps available to advance the conservation of species listed as 
endangered or threatened species under the Act. As explained further 
below, these conservation measures include: (1) recognition, (2) 
recovery actions, (3) requirements for Federal protection, (4) 
financial assistance for conservation programs, and (5) prohibitions 
against certain activities.
    First, recognition through listing results in public awareness, as 
well as in conservation by Federal, State, Tribal, and local agencies, 
foreign governments, private organizations, and individuals. Second, 
the Act encourages cooperation with the States and other countries and 
calls for recovery actions to be carried out for listed species.
    Third, our regulations at 50 CFR part 402 implement the interagency 
cooperation provisions found under section 7 of the Act. Under section 
7(a)(1) of the Act, Federal agencies are to use, in consultation with 
and with the assistance of the Service, their authorities in 
furtherance of the purposes of the Act. Section 7(a)(2) of the Act, as 
amended, requires Federal agencies to ensure, in consultation with the 
Service, that any action authorized, funded, or carried out by such 
agency is not likely to jeopardize the continued existence of a listed 
species or result in destruction or adverse modification of its 
critical habitat.
    A Federal ``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, 
actions that may require consultation under section 7(a)(2) of the Act 
include harvesting Antarctic marine living resources and scientific 
research activities. The National Science Foundation and National 
Marine Fisheries Service are the lead Federal agencies for authorizing 
these activities in Antarctica that may affect the emperor penguin. 
With existing conservation measures of the ACA, AMLRCA, and CCAMLR that 
are implemented for these activities, and obligations of the United 
States under the Antarctic Treaty System, adverse effects to the 
emperor penguin are not anticipated. 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.
    Fourth, 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

[[Page 64717]]

conservation programs for foreign listed species, and to provide 
assistance for such programs, in the form of personnel and the training 
of personnel.
    Finally, the Act puts in place prohibitions against particular 
actions. When a species is listed as endangered, certain actions are 
prohibited under section 9 of the Act and are implemented through our 
regulations in 50 CFR 17.21. For endangered wildlife, these include 
prohibitions under section 9(a)(1) on import; export; delivery, 
receipt, carriage, transport, or shipment in interstate or foreign 
commerce, by any means whatsoever and in the course of commercial 
activity; or sale or offer for sale in interstate or foreign commerce 
of any endangered species. It is also illegal to take within the United 
States or on the high seas; or to possess, sell, deliver, carry, 
transport, or ship, by any means whatsoever any endangered species that 
have been taken in violation of the Act. It is also unlawful to attempt 
to commit, to solicit another to commit or to cause to be committed, 
any of these acts. Exceptions to the prohibitions for endangered 
species may be granted in accordance with section 10 of the Act and our 
regulations at 50 CFR 17.22.
    The Act does not specify particular prohibitions and exceptions to 
those prohibitions for threatened species. Instead, under section 4(d) 
of the Act, the Secretary, as well as the Secretary of Commerce 
depending on the species, was given the discretion to issue such 
regulations as deemed necessary and advisable to provide for the 
conservation of such species. The Secretary also has the discretion to 
prohibit by regulation with respect to any threatened species any act 
prohibited under section 9(a)(1) of the Act. Exercising this 
discretion, the Service has developed general prohibitions in the Act's 
regulations (50 CFR 17.31) and exceptions to those prohibitions (50 CFR 
17.32) that apply to most threatened wildlife species. Under 50 CFR 
17.32, permits may be issued to allow persons to engage in otherwise 
prohibited acts for certain purposes.
    Under section 4(d) of the Act, the Secretary, who has delegated 
this authority to the Service, may also develop specific prohibitions 
and exceptions tailored to the particular conservation needs of a 
threatened species. In such cases, the Service issues a 4(d) rule that 
may include some or all of the prohibitions and authorizations set out 
in 50 CFR 17.31 and 17.32, but which also may be more or less 
restrictive than the general provisions at 50 CFR 17.31 and 17.32. For 
emperor penguin, the Service has determined that a 4(d) rule is 
necessary and advisable.
    As noted above, the 2019 regulations are in effect. Under the 2019 
regulations, 17.31(a) only applies to those wildlife species listed as 
threatened on or prior to September 26, 2019. The 4(d) rule for the 
emperor penguin--which, as described further below, contains specific 
prohibitions and exceptions tailored to the particular conservation 
needs of this threatened species--would be authorized under the 2019 
regulations. As noted above, the analysis based on the 2019 and pre-
2019 regulations, including our 4(d) rule analysis, is included in the 
decision file for this decision.
    As explained below, the 4(d) rule for the emperor penguin will, 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 will 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 will 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 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 provided 
for interstate commerce from public institutions to other public 
institutions, specifically museums, zoological parks, and scientific or 
educational institutions that meet the definition of ``public'' at 50 
CFR 10.12.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits for threatened species are 
codified at 50 CFR 17.32, and general Service permitting regulations 
are codified at 50 CFR part 13. With regard to threatened wildlife, a 
permit may be issued for the following purposes: For scientific 
purposes, to enhance propagation or survival, for economic hardship, 
for zoological exhibition, for educational purposes, for incidental 
taking, or for special purposes consistent with the purposes of the 
Act. The Service may also register persons subject to the jurisdiction 
of the United States through its captive-bred-wildlife (CBW) program if 
certain established requirements are met under the CBW regulations (50 
CFR 17.21(g)). Through a CBW registration, the Service may allow a 
registrant to conduct the following otherwise prohibited activities 
under certain circumstances to enhance the propagation or survival of 
the affected species: take; export or re-import; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce, in the 
course of a commercial activity; or sell or offer for sale in 
interstate or foreign commerce. A CBW registration may authorize 
interstate purchase and sale only between entities that both hold a 
registration for the taxon concerned. The CBW program is available for 
species having a natural geographic distribution not including any part 
of the United States and other species that the Service Director has 
determined to be eligible by regulation. The individual specimens must 
have been born in captivity in the United States. The statute also 
contains certain exemptions 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 listing on 
proposed and ongoing activities within the range of the species. The 
discussion in this preamble regarding protective regulations under 
section 4(d) of the Act complies with our policy.

II. Final 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 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

[[Page 64718]]

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 [her] with regard to the permitted activities for those species. 
[She] may, for example, permit taking, but not importation of such 
species, 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 
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 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 4(d) 
rule, certain prohibitions and provisions that apply to endangered 
wildlife under the Act's section 9(a)(1) prohibitions will help 
minimize threats that could cause further declines in the species' 
status. The provisions of this 4(d) rule promote conservation of 
emperor penguins by ensuring that activities undertaken with respect to 
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 4(d) rule are one of many 
tools that we will use to promote the conservation of emperor penguins.

Provisions of the 4(d) Rule

    Climate change is the greatest threat affecting the status of the 
emperor penguin. However, other activities, including tourism, 
research, commercial krill fisheries, and activities that could lead to 
marine pollution, also may affect emperor penguins. These other factors 
all have minor effects on emperor penguins, and regulating these 
activities could help conserve emperor penguins and decrease 
synergistic, negative effects from the threat of climate change. Thus, 
the 4(d) rule provides 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 words 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. The Act's 
prohibitions on take apply to take within the United States, within the 
territorial sea of the United States, or upon the high seas.
    As noted previously, the U.S. 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 System 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 at 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 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 (16 U.S.C. 2404(e); 45 CFR 670.17(a)).

[[Page 64719]]

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 670.17(b)). Specific 
requirements also apply to permits for proposed imports and exports of 
emperor penguins (see 45 CFR part 670, subpart G). While we have found 
above that these current efforts alone will be inadequate to prevent 
the species from likely becoming in danger of extinction within the 
foreseeable future due to the unique nature of the threat of climate 
change, we also recognize the value these management efforts play in 
helping to conserve the species.
    The ACA applies to the area south of 60 [deg]S latitude, which 
encompasses Antarctica and the entire distribution of emperor penguins. 
Many provisions under the ACA are comparable to similar provisions in 
the Act, including with regard to take, prohibitions on activities with 
unlawfully taken specimens, and prohibitions on import and export. As 
discussed above, for decades the ACA has provided significant 
conservation benefits and protections to the emperor penguin through 
its regulation of these activities with emperor penguin. Accordingly, 
we 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 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 will not apply where there is a violation of the 
ACA; thus, a violation of the ACA will also be a violation of the Act 
under the 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 will fail to meet the regulatory 
exception; therefore, the import will be prohibited by both the ACA and 
the Act under the 4(d) rule. A permit under the Act will 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 will be prohibited unless authorized by an ACA 
permit, a permit under the Act, or for law enforcement purposes. 
Exceptions will also 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 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 captive-bred wildlife 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 4(d) rule applies to 
all live and dead emperor penguin parts and products, and supports 
conservation management efforts for emperor penguins in the wild.

Required Determinations

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 https://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 final rule are the staff members of the 
Fish and Wildlife Service's Species Assessment Team and the Branch of 
Delisting and Foreign Species.

Signing Authority

    Martha Williams, Director of the U.S. Fish and Wildlife Service, 
approved this action on September 20, 2022, for publication. On October 
19, 2022, Martha Williams authorized the undersigned to sign the 
document electronically and submit it to the Office of the Federal 
Register for publication as an official document of the U.S. Fish and 
Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

[[Page 64720]]

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


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


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                                      Birds
 
                                                  * * * * * * *
Penguin, emperor................  Aptenodytes         Wherever found....  T              87 FR [Insert Federal
                                   forsteri.                                              Register page where
                                                                                          the document begins],
                                                                                          October 26, 2022; 50
                                                                                          CFR 17.41(m).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.41 by adding reserved paragraphs (g) through (l) and 
adding paragraph (m) to read as follows:


Sec.  17.41  Special rules--birds.

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

Madonna Baucum,
Chief, Policy and Regulations Branch, U.S. Fish and Wildlife Service.
[FR Doc. 2022-23164 Filed 10-25-22; 8:45 am]
BILLING CODE 4333-15-P