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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Proposed Rules
an endangered or threatened species because of any of five factors: A The present or threatened destruction, modification, or curtailment of its habitat or range; B overutilization for commercial, recreational, scientific, or educational purposes; C disease or predation; D the inadequacy of existing regulatory mechanisms; or E
other natural or manmade factors affecting its continued existence. We have determined that the emperor penguin is likely to become endangered within the foreseeable future throughout a significant portion of its range, meeting the Acts definition of a threatened species. The emperor penguin is a sea-ice-obligate seabird distributed around the entire coastline of Antarctica. The global population is estimated at 270,000280,000 breeding pairs. Given the influence that weather and climate have in affecting the extent and duration of sea ice and relatedly prey abundance around Antarctica, the effects of climate change present the most substantial threat facing the species.
We are also proposing a section 4d rule. When we list a species as threatened, section 4d of the Act 16
U.S.C. 1533d allows us to issue regulations that are necessary and advisable to provide for the conservation of the species.
Accordingly, we are proposing a 4d rule for the emperor penguin that would prohibit import, export, take, possession and other acts with unlawfully taken specimens, interstate or foreign commerce in the course of a commercial activity, or sale or offer for sale. It would also be unlawful to attempt to commit, to solicit another to commit, or to cause to be committed any such conduct. The proposed 4d rule would provide exceptions for certain activities with emperor penguins that are permitted under the Antarctic Conservation Act of 1978, as amended 16 U.S.C. 2401 et seq. and its implementing regulations in title 45 of the Code of Federal Regulations CFR at part 670. An exception is also proposed for interstate commerce from public institutions to other public institutions, specifically museums, zoological parks, and scientific or educational institutions that meet the definition of public at 50 CFR 10.12. We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances, such as for scientific purposes, or the enhancement of propagation or survival of the species in the wild.

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Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible.
Therefore, we request comments or information from other governmental agencies, the scientific community, industry, or any other interested parties concerning this proposed rule.
We particularly seek comments concerning:
1 The species biology, range, and population trends, including:
a Population trends at breeding colonies;
b Genetics and taxonomy, particularly related to the four known metapopulations and the areas of Antarctica that have not yet been analyzed;
c Historical and current range, including redistribution patterns in relation to catastrophic events;
d Colony names and locations;
e Sea-ice conditions in Antarctica, and projected trends;
f Modeling efforts of sea-ice conditions using the Community Earth System Model Large Ensemble project and/or other models to simulate sea ice in Antarctica as it relates to emperor penguins; and g Past and ongoing conservation measures for the species, its habitat, or both.
2 Factors that may affect the continued existence of the species, which may include destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors.
3 Biological, commercial trade, and relevant data concerning any threats or lack thereof to this species and existing regulations that may be addressing those threats.
4 Information on regulations that are necessary and advisable to provide for the conservation of the emperor penguin and that the Service can consider in developing a 4d rule for the species. In particular, we seek information concerning the extent to which we should include the Acts section 9
prohibitions 16 U.S.C. 1538 in the 4d rule, or whether we should consider including any other prohibitions or exceptions in the 4d rule.
Please include sufficient information with your submission such as scientific journal articles or other publications to allow us to verify any scientific or commercial information you include.

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Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4b1A of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made solely on the basis of the best scientific and commercial data available.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.
If you submit information via http
www.regulations.gov, your entire submissionincluding any personal identifying informationwill be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.
We will post all hardcopy submissions on http www.regulations.gov.
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http www.regulations.gov.
Because we will consider all substantive comments and information we receive during the comment period, our final determination may differ from this proposal. Based on the best available scientific and commercial information, we may conclude that the species is endangered instead of threatened, that the species is threatened throughout its range instead of in a significant portion of its range, or that the species does not warrant listing as either an endangered species or a threatened species. We may change the parameters of the prohibitions or the exceptions to those prohibitions in the 4d rule if we conclude it is appropriate in light of comments and new information we receive. For example, we may expand the prohibitions to include prohibiting additional activities if we conclude that those additional activities are not compatible with conservation of the species. Conversely, we may establish additional exceptions to the prohibitions in the final rule if we conclude that the activities would facilitate or are compatible with the conservation and recovery of the species.

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