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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Proposed Rules 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. 240220; 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.
2403b5.
A permit system managed by the National Science Foundation, in coordination with appropriate agencies, issues permits under the ACA for certain, otherwise prohibited activities such as take, import, and export.
Permits authorizing take of emperor penguins under the ACA may be issued only: 1 For the purpose of providing specimens for scientific study or scientific information; 2 for the purpose of providing specimens for museums, zoological gardens, or other educational or cultural institutions or uses; or 3 for unavoidable consequences of scientific activities or the construction and operation of scientific support facilities.
Additionally, ACA permits shall ensure, as far as possible, that 1 no more native mammals, birds, or plants are taken than are necessary to meet the purposes set forth above; 2 no more native mammals or native birds are taken in any year than can normally be replaced by net natural reproduction in the following breeding season; 3 the variety of species and the balance of the natural ecological systems within Antarctica are maintained; and 4 the authorized taking, transporting, carrying, or shipping of any native mammal or bird is carried out in a humane manner 16 U.S.C. 2404e; 45
CFR part 670, subparts C and D.
Specific requirements also apply to permits for proposed imports and exports of emperor penguins see 45
CFR part 670, subpart G. While we have found above that these current efforts alone will be inadequate to prevent the species from likely becoming in danger of extinction within the foreseeable future due to the unique nature of the threat of climate change, we also recognize the value these
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management efforts play in helping to conserve the species.
The ACA applies to the area south of 60 S latitude, which encompasses Antarctica and the entire distribution of emperor penguins. Many provisions under the ACA are comparable to similar provisions in the Act, including with regard to take; prohibitions on activities with unlawfully taken specimens; and prohibitions on import and export. As discussed above, for decades, the ACA has provided significant conservation benefits and protections to the emperor penguin through its regulation of these activities with emperor penguin. Accordingly, we propose to provide exceptions from permitting requirements under the Act for certain otherwise prohibited activities with emperor penguins that are authorized by permit or regulation by the National Science Foundation under the ACA. Specifically, we propose to provide exceptions for take in Antarctica, import to the United States from Antarctica, and export from the United States to Antarctica when these activities are authorized under an ACA permit issued by the National Science Foundation. These exceptions would not apply where there is a violation of the ACA, and thus a violation of the ACA would also be a violation of the Act under the proposed 4d rule. For example, for import to the United States from Antarctica where the ACA requires an import permit, the import of an emperor penguin without an ACA permit would fail to meet the proposed regulatory exception, and therefore the import would be prohibited by both the ACA and the Act under the proposed 4d rule. A permit under the Act would be required for the import and export of any emperor penguins for any other purpose e.g., import from or export to another country, or import or export of a captive-bred emperor penguin.
Accordingly, all imports and exports of emperor penguins would be prohibited unless authorized by an ACA permit, a permit under the Act, or for law enforcement purposes. Exceptions are also proposed to apply to take of emperor penguins, if the activity meets the ACA regulatory exceptions for emergency circumstances 45 CFR
670.5a and c, to aid or salvage a specimen 45 CFR 670.5b and c, or for law enforcement purposes including the import or export of emperor penguins for law enforcement purposes; 45 CFR 670.9.
The proposed 4d rule also provides an exception for interstate commerce from public institutions to other public institutions, specifically museums,
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zoological parks, and scientific or educational institutions, meeting the definition of public at 50 CFR 10.12.
The majority of records of import of emperor penguins into the United States have been for this very purpose.
Demand for emperor penguins held at or captive-bred by these types of public institutions in the United States is not substantial nor is it likely to pose a significant threat to the wild population in Antarctica. As defined in our regulations, public museums, zoological parks, and scientific or educational institutions are those that are open to the general public and are either established, maintained, and operated as a governmental service or are privately endowed and organized but not operated for profit.
We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. As noted above, we may also authorize certain activities associated with conservation breeding under CBW registrations. We recognize that captive breeding of wildlife can support conservation, for example by producing animals that could be used for reintroductions into Antarctica, if permitted under the ACA. We are not aware of any captive breeding programs for emperor penguins for this purpose.
The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act. This proposed 4d rule, if finalized, would apply to all live and dead emperor penguin parts and products, and support conservation management efforts for emperor penguins in the wild.
Required Determinations Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
1 Be logically organized;
2 Use the active voice to address readers directly;
3 Use clear language rather than jargon;

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