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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Proposed Rules
from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1, 1994 59 FR
34272, to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. The discussion below regarding protective regulations under section 4d of the Act complies with our policy.

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II. Proposed Rule Issued Under Section 4d of the Act Background Section 4d of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as he or she deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like necessary and advisable demonstrates a large degree of deference to the agency see Webster v. Doe, 486 U.S. 592
1988. Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4d of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9a1, in the case of fish or wildlife, or section 9a2, in the case of plants. Thus, the combination of the two sentences of section 4d 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 Secretarys 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 4d 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

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2002. Courts have also upheld 4d rules that do not address all of the threats a species faces see State of Louisiana v. Verity, 853 F.2d 322 5th Cir. 1988. As noted in the legislative history when the Act was initially enacted, once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him or her with regard to the permitted activities for those species. He or she may, for example, permit taking, but not importation of such species, or he or she may choose to forbid both taking and importation but allow the transportation of such species H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973.
Exercising this authority under section 4d, we have developed a proposed rule that is designed to address the emperor penguins specific threats and conservation needs.
Although the statute does not require us to make a necessary and advisable finding with respect to the adoption of specific prohibitions under section 9, we find that this proposed rule as a whole satisfies the requirement in section 4d 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 Penguins Status, we have concluded that the emperor penguin is likely to become in danger of extinction within the foreseeable future primarily due to climate change. Under this proposed 4d rule, certain prohibitions and provisions that apply to endangered wildlife under the Acts section 9a1
prohibitions would help minimize threats that could cause further declines in the species status. The provisions of this proposed 4d rule would promote conservation of emperor penguins by ensuring that activities undertaken with the species by any person under the jurisdiction of the United States are also supportive of the conservation efforts undertaken for the species in Antarctica.
The provisions of this proposed rule are one of many tools that we would use to promote the conservation of emperor penguins. This proposed 4d rule would apply only if and when we make final the proposed listing of the emperor penguin as a threatened species.
Provisions of the Proposed 4d Rule In the SSA report and this proposed rule, we identified the factor of climate change as the greatest threat to the species. However, other activities of tourism, research, commercial krill
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fisheries, and activities that could lead to marine pollution also may affect emperor penguins. Except for climate change, these other factors all have minor effects on emperor penguins.
Although this proposed 4d rule addresses the threats that have minor effects on emperor penguins, regulating these activities could help conserve emperor penguins and decrease synergistic, negative effects from the threat of climate change. Thus, the proposed 4d rule would provide for the conservation of the species by regulating and prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; take; possession and other acts with unlawfully taken specimens;
delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. Under the Act, take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulations at 50 CFR 17.3.
Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally.
Prohibiting take applies to take within the United States, within the territorial sea of the United States, or upon the high seas.
As noted previously, in the United States, the Antarctic Conservation Act of 1978 ACA; 16 U.S.C. 2401 et seq.
provides for the conservation and protection of the fauna and flora of Antarctica, and of the ecosystem upon which such fauna and flora depend, consistent with the Antarctic Treaty and the Protocol. The ACAs implementing regulations 45 CFR part 670 include provisions relating to the conservation of Antarctic animals, including native birds such as emperor penguins. The National Science Foundation is the lead agency that manages the U.S. Antarctic Program and administers the ACA and its implementing regulations 45 CFR
part 670.
Under the ACA, certain activities are prohibited related to flora and fauna in Antarctica. Of particular relevance to emperor penguins, the ACA prohibits take of any native bird within Antarctica without a permit. The term native bird under the ACA means any member, at any stage of its life cycle including eggs, of any species of the class Aves which is indigenous to Antarctica or occurs there seasonally through natural migrations, and includes any part of such member 16
U.S.C. 24029; 45 CFR 670.3. Emperor
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