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Federal Register / Vol. 86, No. 229 / Thursday, December 2, 2021 / Notices
significant portion of its range.
Although the available data do not support a conclusion that H. nobilis is at risk of extinction currently or in the foreseeable future based on the rangewide assessment, we examined whether there are any portions of the species range where H. nobilis may be facing elevated extinction risk, and whether any such portions qualify as significant portions in order to determine whether the species may qualify for listing on the basis of its status within a portion of its range.
The Final Policy on Interpretation of the Phrase Significant Portion of Its Range in the Endangered Species Acts Definitions of Endangered Species and Threatened SpeciesSPR
Policy, 79 FR 37578, July 1, 2014, partially guided this assessment. Under the SPR Policy, we must determine whether there is substantial information indicating that 1 any portions may be significant and 2 the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. The order in which these determinations are made is flexible and typically determined based on the nature of the available information or circumstances for the particular species.
We note that the definition of significant in the SPR Policy has been invalidated in two District Court cases that addressed listing decisions made by the USFWS. The SPR Policy set out a biologically-based definition that examined the contributions of the members in the portion to the species as a whole, and established a specific threshold i.e., when the loss of the members in the portion would cause the overall species to become threatened or endangered. The courts invalidated the threshold component of the definition because it set too high a standard.
Specifically, the courts held that, under the threshold in the policy, a species would never be listed based on the status of the species in the portion, because in order for a portion to meet the threshold, the species would be threatened or endangered rangewide.
Center for Biological Diversity, et al. v.
Jewell, 248 F. Supp. 3d 946, 958 D.
Ariz. 2017; Desert Survivors v. DOI 321
F. Supp. 3d. 1011 N.D. Cal., 2018.
NMFS did not rely on the definition of significant in the policy when making this 12-month finding. NMFS instead examined information relevant to making the second determination by considering whether there may be a concentration of threats in portions of the range and whether the species is at risk of extinction within those portions.
When evaluating the threats that H.

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nobilis faces, we considered overutilization for international trade in beche-de-mer and the lack of enforcement of existing regulatory mechanisms. These two factors are considered the main threats likely causing negative impacts to H. nobilis at the population level in at least some portions of its range see Table 4 in NMFS 2021.
Based on our review of the available data, these main threats appear to be largely widespread throughout H.
nobilis range. Sea cucumbers in general face the threats of overutilization and illegal harvest for the purpose of supplying beche-de-mer to Asian markets. This demand is ubiquitous throughout the western Indian Ocean i.e. the range of H. nobilis; see Figures 8 and 10 in NMFS 2021. Given the wide-spread nature of these threats, we next considered whether the species may be responding differently in certain portions of its range to the point where it may be at risk of extinction from these threats within those portions.
Where species-specific information is available, the data show potential negative responses, as evidenced by population declines, in Chagos, Egypt, Madagascar, Mayotte, Saudi Arabia, and Tanzania. However, as stated previously in the extinction risk analysis, where data do indicate species-specific declines there is insufficient data to indicate the species is facing a risk of extinction in those locations. For example, in Chagos the mean density reported for Salomon atoll in 2002 was 83 ind. ha-1 and in 2006 was reported as 10 ind. ha-1. Although this decline to 10 ind. ha-1 could potentially be a cause for concern, in the nearby Seychelles, a mean density of 2.0 ind. ha-1, reported during a 20032004 survey, was considered to represent an underexploited H. nobilis population.
Additionally, there are only anecdotal data for declines in Tanzania and Madagascar. Without additional information on minimum density thresholds or the reproductive potential or current productivity of H. nobilis, the available information does not allow us to conclude that these populations may be in danger of extinction. Furthermore, sea cucumber fishing is currently prohibited in Egypt first in 20012002
and reinstated in 2003, Mayotte since 2004, Saudi Arabia since 2006 and Tanzania since 2006. While illegal and unregulated fishing is an issue for sea cucumbers, these fishing bans should be reducing fishing pressure on the species, and, thus, potentially decreasing the speciess risk of extinction in these areas.

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While there are limited data on the locations listed above, demographic data to determine how H. nobilis may be responding to these threats are largely lacking. As a result, we are unable to determine the extinction risk of H.
nobilis in any portion of its range. Thus, we are unable to conclude that the species may be at a moderate or high risk of extinction in any portion of its range or likely to become so within the foreseeable future. Because we have made this determination, we did not separately examine whether any portions qualify as significant.
Furthermore, such an analysis would likely be challenged by the same type of data limitations, such as lack of understanding of population structure, population connectivity, and speciesspecific abundance data, and as a result, prevent a conclusion regarding whether any portions are biologically important such that they qualify as significant portions of the species range.
Final Listing Determination Section 4b1 of the ESA requires that NMFS make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and taking into account those efforts, if any, being made by any state or foreign nation, or political subdivisions thereof, to protect and conserve the species. We have independently reviewed the best available scientific and commercial information, including the petitions, public comments submitted on the 90day finding 85 FR 48144, August 10, 2020, the Status Review Report NMFS
2021, and other published and unpublished information. We considered each of the statutory factors to determine whether each contributed significantly to the extinction risk of the species. As previously explained, we could not identify a significant portion of the speciess range that is threatened or endangered. Therefore, our determination is based on a synthesis and integration of the foregoing information, factors and considerations, and their effects on the status of the species throughout its entire range.
We have determined the species does not warrant listing at this time. This finding is consistent with the statutes requirement to base our findings on the best scientific and commercial data available. Given the limitations of the available data, including sparse speciesspecific information hindering status and trend analyses, significant uncertainty regarding the identification and magnitude of potential threats to the species throughout most of its range,
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