50 CFR Part 223 Subpart B (223.204)

50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR Part 223 Subpart B (Sept. 24, 2024)

This content is from the eCFR and is authoritative but unofficial.

Title 50 —Wildlife and Fisheries
Chapter II —National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce
Subchapter C —Marine Mammals
Part 223 —Threatened Marine and Anadromous Species
Authority: 16 U.S.C. 1531 1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for §
223.206(d)(9).
Source: 43 FR 32809, July 28, 1978, unless otherwise noted. Redesignated at 64 FR 14068, Mar. 23, 1999.

Subpart B Restrictions Applicable to Threatened Marine and Anadromous Species
§ 223.201 Guadalupe fur seal.
§ 223.202 [Reserved]
§ 223.203 Anadromous fish.
§ 223.204 Tribal plans.
§ 223.205 Sea turtles.
§ 223.206 Exceptions to prohibitions relating to sea turtles.
§ 223.207 Approved TEDs.
§ 223.208 Corals.
§ 223.209 [Reserved]
§ 223.210 Green sturgeon.
§ 223.211 Atlantic sturgeon.
§ 223.212 Southern DPS of spotted seal.
§ 223.213 Humpback whales.
§ 223.214 Approaching threatened humpback whales in Alaska.
§§ 223.215-223.300 [Reserved]
§ 223.301 Special rules—marine and anadromous fishes.
Subpart B—Restrictions Applicable to Threatened Marine and Anadromous Species
§ 223.201 Guadalupe fur seal.
(a) Prohibitions. The prohibitions of section 9 of the Act (16 U.S.C. 1538) relating to endangered species
apply to the Guadalupe fur seal except as provided in paragraph (b) of this section.
(b) Exceptions.
(1) The Assistant Administrator may issue permits authorizing activities which would otherwise be
prohibited under paragraph (a) of this section subject to the provisions of part 222 subpart C,
General Permit Procedures.
(2) Any Federal, State or local government official, employee, or designated agent may, in the course of
official duties, take a stranded Guadalupe fur seal without a permit if such taking:
50 CFR 223.201(b)(2) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

(i)

50 CFR 223.201(b)(2)(i)

Is accomplished in a humane manner;

(ii) Is for the protection or welfare of the animal, is for the protection of the public health or welfare,
or is for the salvage or disposal of a dead specimen;
(iii) Includes steps designed to ensure the return of the animal to its natural habitat, if feasible; and
(iv) Is reported within 30 days to the Regional Administrator, Southwest Region, National Marine
Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802.
(3) Any animal or specimen taken under paragraph (b)(2) of this section may only be retained, disposed
of, or salvaged in accordance with directions from the Director, Southwest Region.
[50 FR 51258, Dec. 16, 1985. Redesignated and amended at 64 FR 14068, Mar. 23, 1999, as amended at 79 FR 20812, Apr. 14,
2014]

§ 223.202 [Reserved]
§ 223.203 Anadromous fish.
Available guidance documents cited in the regulatory text are listed in Appendix A to this section.
(a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) relating to endangered
species apply to fish with an intact adipose fin that are part of the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102.
(b) Limits on the prohibitions. The limits to the prohibitions of paragraph (a) of this section relating to
threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102
are described in the following paragraphs:
(1) The exceptions of section 10 of the ESA (16 U.S.C. 1539) and other exceptions under the Act relating
to endangered species, including regulations in part 222 of this chapter implementing such
exceptions, also apply to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in § 223.102.
(2) The prohibitions of paragraph (a) of this section relating to threatened Puget Sound steelhead listed
in § 223.102 do not apply to:
(i)

Activities specified in an application for a permit for scientific purposes or to enhance the
conservation or survival of the species, provided that the application has been received by the
Assistant Administrator for Fisheries, NOAA (AA), no later than November 14, 2008. The
prohibitions of this section apply to these activities upon the AA's rejection of the application as
insufficient, upon issuance or denial of a permit, or June 1, 2009, whichever occurs earliest, or

(ii) Steelhead harvested in tribal or recreational fisheries prior to June 1, 2009, so long as the
harvest is authorized by the State of Washington or a tribe with jurisdiction over steelhead
harvest. If NMFS does not receive a fishery management plan for Puget Sound steelhead by
November 14, 2008, subsequent take by harvest will be subject to the take prohibitions.
(3) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to any employee
or designee of NMFS, the United States Fish and Wildlife Service, any Federal land management
agency, the Idaho Department of Fish and Game (IDFG), Washington Department of Fish and Wildlife
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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.203(b)(3)(i)

(WDFW), the Oregon Department of Fish and Wildlife (ODFW), California Department of Fish and
Game (CDFG), or of any other governmental entity that has co-management authority for the listed
salmonids, when the employee or designee, acting in the course of his or her official duties, takes a
threatened salmonid without a permit if such action is necessary to:
(i)

Aid a sick, injured, or stranded salmonid,

(ii) Dispose of a dead salmonid, or
(iii) Salvage a dead salmonid which may be useful for scientific study.
(iv) Each agency acting under this limit on the take prohibitions of paragraph (a) of this section is to
report to NMFS the numbers of fish handled and their status, on an annual basis. A designee of
the listed entities is any individual the Federal or state fishery agency or other co-manager has
authorized in writing to perform the listed functions.
(4) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to fishery harvest
activities provided that:
(i)

Fisheries are managed in accordance with a NMFS-approved Fishery Management and
Evaluation Plan (FMEP) and implemented in accordance with a letter of concurrence from
NMFS. NMFS will approve an FMEP only if it clearly defines its intended scope and area of
impact and sets forth the management objectives and performance indicators for the plan. The
plan must adequately address the following criteria:
(A) Define populations within affected listed ESUs, taking into account spatial and temporal
distribution, genetic and phenotypic diversity, and other appropriate identifiably unique
biological and life history traits. Populations may be aggregated for management
purposes when dictated by information scarcity, if consistent with survival and recovery of
the listed ESU. In identifying management units, the plan shall describe the reasons for
using such units in lieu of population units, describe how the management units are
defined, given biological and life history traits, so as to maximize consideration of the
important biological diversity contained within the listed ESU, respond to the scale and
complexity of the ESU, and help ensure consistent treatment of listed salmonids across a
diverse geographic and jurisdictional range.
(B) Utilize the concepts of “viable” and “critical” salmonid population thresholds, consistent
with the concepts contained in the technical document entitled “Viable Salmonid
Populations (NMFS, 2000b).” The VSP paper provides a framework for identifying the
biological requirements of listed salmonids, assessing the effects of management and
conservation actions, and ensuring that such actions provide for the survival and recovery
of listed species. Proposed management actions must recognize the significant
differences in risk associated with viable and critical population threshold states and
respond accordingly to minimize the long-term risks to population persistence. Harvest
actions impacting populations that are functioning at or above the viable threshold must
be designed to maintain the population or management unit at or above that level. For
populations shown with a high degree of confidence to be above critical levels but not yet
at viable levels, harvest management must not appreciably slow the population's
achievement of viable function. Harvest actions impacting populations that are
functioning at or below critical threshold must not be allowed to appreciably increase
genetic and demographic risks facing the population and must be designed to permit the

50 CFR 223.203(b)(4)(i)(B) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.203(b)(4)(i)(C)

population's achievement of viable function, unless the plan demonstrates that the
likelihood of survival and recovery of the entire ESU in the wild would not be appreciably
reduced by greater risks to that individual population.
(C) Set escapement objectives or maximum exploitation rates for each management unit or
population based on its status and on a harvest program that assures that those rates or
objectives are not exceeded. Maximum exploitation rates must not appreciably reduce the
likelihood of survival and recovery of the ESU. Management of fisheries where artificially
propagated fish predominate must not compromise the management objectives for
commingled naturally spawned populations.
(D) Display a biologically based rationale demonstrating that the harvest management
strategy will not appreciably reduce the likelihood of survival and recovery of the ESU in
the wild, over the entire period of time the proposed harvest management strategy affects
the population, including effects reasonably certain to occur after the proposed actions
cease.
(E) Include effective monitoring and evaluation programs to assess compliance,
effectiveness, and parameter validation. At a minimum, harvest monitoring programs
must collect catch and effort data, information on escapements, and information on
biological characteristics, such as age, fecundity, size and sex data, and migration timing.
(F) Provide for evaluating monitoring data and making any revisions of assumptions,
management strategies, or objectives that data show are needed.
(G) Provide for effective enforcement and education. Coordination among involved
jurisdictions is an important element in ensuring regulatory effectiveness and coverage.
(H) Include restrictions on resident and anadromous species fisheries that minimize any take
of listed species, including time, size, gear, and area restrictions.
(I)

Be consistent with plans and conditions established within any Federal court proceeding
with continuing jurisdiction over tribal harvest allocations.

(ii) The state monitors the amount of take of listed salmonids occurring in its fisheries and
provides to NMFS on a regular basis, as defined in NMFS' letter of concurrence for the FMEP, a
report summarizing this information, as well as the implementation and effectiveness of the
FMEP. The state shall provide NMFS with access to all data and reports prepared concerning
the implementation and effectiveness of the FMEP.
(iii) The state confers with NMFS on its fishing regulation changes affecting listed ESUs to ensure
consistency with the approved FMEP. Prior to approving a new or amended FMEP, NMFS will
publish notification in the FEDERAL REGISTER announcing its availability for public review and
comment. Such an announcement will provide for a comment period on the draft FMEP of not
less than 30 days.
(iv) NMFS provides written concurrence of the FMEP which specifies the implementation and
reporting requirements. NMFS' approval of a plan shall be a written approval by NMFS
Southwest or Northwest Regional Administrator, as appropriate. On a regular basis, NMFS will
evaluate the effectiveness of the program in protecting and achieving a level of salmonid
productivity commensurate with conservation of the listed salmonids. If it is not, NMFS will
identify ways in which the program needs to be altered or strengthened. If the responsible
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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.203(b)(4)(v)

agency does not make changes to respond adequately to the new information, NMFS will
publish notification in the FEDERAL REGISTER announcing its intention to withdraw the limit for
activities associated with that FMEP. Such an announcement will provide for a comment period
of not less than 30 days, after which NMFS will make a final determination whether to withdraw
the limit so that the prohibitions would then apply to those fishery harvest activities. A template
for developing FMEPs is available from NMFS Northwest Region's website (www.nwr.noaa.gov).
(v) [Reserved]
(5) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to activity
associated with artificial propagation programs provided that:
(i)

A state or Federal Hatchery and Genetics Management Plan (HGMP) has been approved by
NMFS as meeting the following criteria:
(A) The HGMP has clearly stated goals, performance objectives, and performance indicators
that indicate the purpose of the program, its intended results, and measurements of its
performance in meeting those results. Goals shall address whether the program is
intended to meet conservation objectives, contribute to the ultimate sustainability of
natural spawning populations, and/or intended to augment tribal, recreational, or
commercial fisheries. Objectives should enumerate the results desired from the program
that will be used to measure the program's success or failure.
(B) The HGMP utilizes the concepts of viable and critical salmonid population threshold,
consistent with the concepts contained in the technical document entitled “Viable
Salmonid Populations” (NMFS, 2000b). Listed salmonids may be purposefully taken for
broodstock purposes only if the donor population is currently at or above the viable
threshold and the collection will not impair its function; if the donor population is not
currently viable but the sole objective of the current collection program is to enhance the
propagation or survival of the listed ESU; or if the donor population is shown with a high
degree of confidence to be above critical threshold although not yet functioning at viable
levels, and the collection will not appreciably slow the attainment of viable status for that
population.
(C) Taking into account health, abundances, and trends in the donor population, broodstock
collection programs reflect appropriate priorities. The primary purpose of broodstock
collection programs of listed species is to reestablish indigenous salmonid populations
for conservation purposes. Such programs include restoration of similar, at-risk
populations within the same ESU, and reintroduction of at-risk populations to underseeded
habitat. After the species' conservation needs are met and when consistent with survival
and recovery of the ESU, broodstock collection programs may be authorized by NMFS
such for secondary purposes, as to sustain tribal, recreational, and commercial fisheries.
(D) The HGMP includes protocols to address fish health, broodstock collection, broodstock
spawning, rearing and release of juveniles, deposition of hatchery adults, and catastrophic
risk management.
(E) The HGMP evaluates, minimizes, and accounts for the propagation program's genetic and
ecological effects on natural populations, including disease transfer, competition,
predation, and genetic introgression caused by the straying of hatchery fish.

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
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50 CFR 223.203(b)(5)(i)(F)

(F) The HGMP describes interrelationships and interdependencies with fisheries
management. The combination of artificial propagation programs and harvest
management must be designed to provide as many benefits and as few biological risks as
possible for the listed species. For programs whose purpose is to sustain fisheries,
HGMPs must not compromise the ability of FMEPs or other management plans to
conserve listed salmonids.
(G) Adequate artificial propagation facilities exist to properly rear progeny of naturally
spawned broodstock, to maintain population health and diversity, and to avoid hatcheryinfluenced selection or domestication.
(H) Adequate monitoring and evaluation exist to detect and evaluate the success of the
hatchery program and any risks potentially impairing the recovery of the listed ESU.
(I)

The HGMP provides for evaluating monitoring data and making any revisions of
assumptions, management strategies, or objectives that data show are needed;

(J) NMFS provides written concurrence of the HGMP which specifies the implementation and
reporting requirements. For Federally operated or funded hatcheries, the ESA section 7
consultation will achieve this purpose.
(K) The HGMP is consistent with plans and conditions set within any Federal court proceeding
with continuing jurisdiction over tribal harvest allocations.
(ii) The state monitors the amount of take of listed salmonids occurring in its hatchery program
and provides to NMFS on a regular basis a report summarizing this information, and the
implementation and effectiveness of the HGMP as defined in NMFS' letter of concurrence. The
state shall provide NMFS with access to all data and reports prepared concerning the
implementation and effectiveness of the HGMP.
(iii) The state confers with NMFS on a regular basis regarding intended collections of listed
broodstock to ensure congruity with the approved HGMP.
(iv) Prior to final approval of an HGMP, NMFS will publish notification in the FEDERAL REGISTER
announcing its availability for public review and comment for a period of at least 30 days.
(v) NMFS' approval of a plan shall be a written approval by NMFS Southwest or Northwest Regional
Administrator, as appropriate.
(vi) On a regular basis, NMFS will evaluate the effectiveness of the HGMP in protecting and
achieving a level of salmonid productivity commensurate with the conservation of the listed
salmonids. If the HGMP is not effective, the NMFS will identify to the jurisdiction ways in which
the program needs to be altered or strengthened. If the responsible agency does not make
changes to respond adequately to the new information, NMFS will publish notification in the
FEDERAL REGISTER announcing its intention to withdraw the limit on activities associated with
that program. Such an announcement will provide for a comment period of no less than 30
days, after which NMFS will make a final determination whether to withdraw the limit so that
take prohibitions, likeall other activity not within a limit, would then apply to that program. A
template for developing HGMPs is available from NMFS Northwest Region's website
(www.nwr.noaa.gov).

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
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50 CFR 223.203(b)(6)

(6) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to actions
undertaken in compliance with a resource management plan developed jointly by the States of
Washington, Oregon and/or Idaho and the Tribes (joint plan) within the continuing jurisdiction of
United States v. Washington or United States v. Oregon, the on-going Federal court proceedings to
enforce and implement reserved treaty fishing rights, provided that:
(i)

The Secretary has determined pursuant to 50 CFR 223.209 and the government-to-government
processes therein that implementing and enforcing the joint tribal/state plan will not
appreciably reduce the likelihood of survival and recovery of affected threatened ESUs.

(ii) The joint plan will be implemented and enforced within the parameters set forth in United States
v. Washington or United States v. Oregon.
(iii) In making that determination for a joint plan, the Secretary has taken comment on how any
fishery management plan addresses the criteria in § 223.203(b)(4), or on how any hatchery and
genetic management plan addresses the criteria in § 223.203(b)(5).
(iv) The Secretary shall publish notice in the FEDERAL REGISTER of any determination whether or not a
joint plan, will appreciably reduce the likelihood of survival and recovery of affected threatened
ESUs, together with a discussion of the biological analysis underlying that determination.
(v) On a regular basis, NMFS will evaluate the effectiveness of the joint plan in protecting and
achieving a level of salmonid productivity commensurate with conservation of the listed
salmonids. If the plan is not effective, then NMFS will identify to the jurisdiction ways in which
the joint plan needs to be altered or strengthened. If the responsible agency does not make
changes to respond adequately to the new information, NMFS will publish notification in the
FEDERAL REGISTER announcing its intention to withdraw the limit on activities associated with
that joint plan. Such an announcement will provide for a comment period of no less than 30
days, after which NMFS will make a final determination whether to withdraw the limit so that
take prohibitions would then apply to that joint plan as to all other activity not within a limit.
(7) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to scientific
research activities provided that:
(i)

Scientific research activities involving purposeful take is conducted by employees or
contractors of the ODFW, WDFW (Agencies), IDFG, or CDFG (Agencies), or as a part of a
monitoring and research program overseen by or coordinated with that Agency.

(ii) The Agencies provide for NMFS' review and approval a list of all scientific research activities
involving direct take planned for the coming year, including an estimate of the total direct take
that is anticipated, a description of the study design, including a justification for taking the
species and a description of the techniques to be used, and a point of contact.
(iii) The Agencies annually provide to NMFS the results of scientific research activities directed at
threatened salmonids, including a report of the direct take resulting from the studies and a
summary of the results of such studies.
(iv) Scientific research activities that may incidentally take threatened salmonids are either
conducted by agency personnel, or are in accord with a permit issued by the Agency.

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
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50 CFR 223.203(b)(7)(v)

(v) The Agencies provide NMFS annually, for its review and approval, a report listing all scientific
research activities it conducts or permits that may incidentally take threatened salmonids
during the coming year. Such reports shall also contain the amount of incidental take of
threatened salmonids occurring in the previous year's scientific research activities and a
summary of the results of such research.
(vi) Electrofishing in any body of water known or suspected to contain threatened salmonids is
conducted in accordance with NMFS “Guidelines for Electrofishing Waters Containing
Salmonids Listed Under the Endangered Species Act” (NMFS, 2000a).
(vii) NMFS' approval of a research program shall be a written approval by NMFS Northwest or
Southwest Regional Administrator.
(8) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to habitat
restoration activities, as defined in paragraph (b)(8)(iv) of this section, provided that the activity is
part of a watershed conservation plan, and:
(i)

The watershed conservation plan has been certified by the State of Washington, Oregon, Idaho,
or California (State) to be consistent with the state's watershed conservation plan guidelines.

(ii) The State's watershed conservation plan guidelines have been found by NMFS to provide for
plans that:
(A) Take into account the potential severity of direct, indirect, and cumulative impacts of
proposed activities in light of the status of affected species and populations.
(B) Will not reduce the likelihood of either survival or recovery of listed species in the wild.
(C) Ensure that any taking will be incidental.
(D) Minimize and mitigate any adverse impacts.
(E) Provide for effective monitoring and adaptive management.
(F) Use the best available science and technology, including watershed analysis.
(G) Provide for public and scientific review and input.
(H) Include any measures that NMFS determines are necessary or appropriate.
(I)

Include provisions that clearly identify those activities that are part of plan
implementation.

(J) Control risk to listed species by ensuring funding and implementation of the above plan
components.
(iii) NMFS will periodically review state certifications of Watershed Conservation Plans to ensure
adherence to approved watershed conservation plan guidelines.
(iv) “Habitat restoration activity” is defined as an activity whose primary purpose is to restore
natural aquatic or riparian habitat conditions or processes. “Primary purpose” means the
activity would not be undertaken but for its restoration purpose.

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
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50 CFR 223.203(b)(8)(v)

(v) Prior to approving watershed conservation plan guidelines under paragraph (b)(8)(ii) of this
section, NMFS will publish notification in the FEDERAL REGISTER announcing the availability of the
proposed guidelines for public review and comment. Such an announcement will provide for a
comment period on the draft guidelines of no less than 30 days.
(9) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to the physical
diversion of water from a stream or lake, provided that:
(i)

NMFS' engineering staff or any resource agency or tribe NMFS designates (authorized officer)
has agreed in writing that the diversion facility is screened, maintained, and operated in
compliance with Juvenile Fish Screen Criteria, National Marine Fisheries Service, Northwest
Region, Revised February 16, 1995, with Addendum of May 9, 1996, or in California with NMFS'
Southwest Region “Fish Screening Criteria for Anadromous Salmonids, January 1997” or with
any subsequent revision.

(ii) The owner or manager of the diversion allows any NMFS engineer or authorized officer access
to the diversion facility for purposes of inspection and determination of continued compliance
with the criteria.
(iii) On a case by case basis, NMFS or an Authorized Officer will review and approve a juvenile fish
screen design and construction plan and schedule that the water diverter proposes for screen
installation. The plan and schedule will describe interim operation measures to avoid take of
threatened salmonids. NMFS may require a commitment of compensatory mitigation if
implementation of the plan and schedule is terminated prior to completion. If the plan and
schedule are not met, or if a schedule modification is made that is not approved by NMFS or
Authorized Officer, or if the screen installation deviates from the approved design, the water
diversion will be subject to take prohibitions and mitigation.
(iv) This limit on the prohibitions of paragraph (a) of this section does not encompass any impacts
of reduced flows resulting from the diversion or impacts caused during installation of the
diversion device. These impacts are subject to the prohibition on take of listed salmonids.
(10) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to routine road
maintenance activities provided that:
(i)

The activity results from routine road maintenance activity conducted by ODOT employees or
agents that complies with ODOT's Transportation Maintenance Management System Water
Quality and Habitat Guide (July, 1999); or by employees or agents of a state, county, city or port
that complies with a program substantially similar to that contained in the ODOT Guide that is
determined to meet or exceed the protections provided by the ODOT Guide; or by employees or
agents of a state, county, city or port that complies with a routine road maintenance program
that meets proper functioning habitat conditions as described further in subparagraph (ii)
following. NMFS' approval of state, city, county, or port programs that are equivalent to the
ODOT program, or of any amendments, shall be a written approval by NMFS Northwest or
Southwest Regional Administrator, whichever is appropriate. Any jurisdiction desiring its routine
road maintenance activities to be within this limit must first commit in writing to apply
management practices that result in protections equivalent to or better than those provided by
the ODOT Guide, detailing how it will assure adequate training, tracking, and reporting, and
describing in detail any dust abatement practices it requests to be covered.

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
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50 CFR 223.203(b)(10)(ii)

(ii) NMFS finds the routine road maintenance activities of any state, city, county, or port to be
consistent with the conservation of listed salmonids' habitat when it contributes, as does the
ODOT Guide, to the attainment and maintenance of properly functioning condition (PFC). NMFS
defines PFC as the sustained presence of natural habitat-forming processes that are necessary
for the long-term survival of salmonids through the full range of environmental variation.
Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably
reduce the functioning of already impaired habitat, or retard the long-term progress of impaired
habitat toward PFC. Periodically, NMFS will evaluate an approved program for its effectiveness
in maintaining and achieving habitat function that provides for conservation of the listed
salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the
program needs to be altered or strengthened. Changes may be identified if the program is not
protecting desired habitat functions, or where even with the habitat characteristics and
functions originally targeted, habitat is not supporting population productivity levels needed to
conserve the ESU. If any jurisdiction within the limit does not make changes to respond
adequately to the new information in the shortest amount of time feasible, but not longer than
one year, NMFS will publish notification in the FEDERAL REGISTER announcing its intention to
withdraw the limit so that take prohibitions would then apply to the program as to all other
activity not within a limit. Such an announcement will provide for a comment period of no less
than 30 days, after which NMFS will make a final determination whether to subject the activities
to the ESA section 9(a)(1) prohibitions.
(iii) Prior to implementing any changes to a program within this limit the jurisdiction provides NMFS
a copy of the proposed change for review and approval as within this limit.
(iv) Prior to approving any state, city, county, or port program as within this limit, or approving any
substantive change in a program within this limit, NMFS will publish notification in the FEDERAL
REGISTER announcing the availability of the program or the draft changes for public review and
comment. Such an announcement will provide for a comment period of not less than 30 days.
(v) Pesticide and herbicide spraying is not included within this limit, even if in accord with the ODOT
guidance.
(11) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to activities within
the City of Portland, Oregon Parks and Recreation Department's (PP&R) Pest Management Program
(March 1997), including its Waterways Pest Management Policy updated December 1, 1999,
provided that:
(i)

Use of only the following chemicals is included within this limit on the take prohibitions: Round
Up, Rodeo, Garlon 3A, Surfactant LI-700, Napropamide, Cutrine Plus, and Aquashade.

(ii) Any chemical use is initiated in accord with the priorities and decision processes of the
Department's Pest Management Policy, including the Waterways Pest Management Policy,
updated December 1, 1999.
(iii) Any chemical use within a 25 ft. (7.5 m) buffer complies with the buffer application constraints
contained in PP&R's Waterways Pest Management Policy (update December 1, 1999).
(iv) Prior to implementing any changes to this limit, the PP&R provides NMFS with a copy of the
proposed change for review and approval as within this limit.

50 CFR 223.203(b)(11)(iv) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.203(b)(11)(v)

(v) Prior to approving any substantive change in a program within this limit, NMFS will publish
notification in the FEDERAL REGISTER announcing the availability of the program or the draft
changes for public review and comment. Such an announcement will provide for a comment
period of no less than 30 days.
(vi) NMFS' approval of amendments shall be a written approval by NMFS Northwest Regional
Administrator.
(vii) NMFS finds the PP&R Pest Management Program activities to be consistent with the
conservation of listed salmonids' habitat by contributing to the attainment and maintenance of
properly functioning condition (PFC). NMFS defines PFC as the sustained presence of a
watershed's natural habitat-forming processes that are necessary for the long-term survival of
salmonids through the full range of environmental variation. Actions that affect salmonid
habitat must not impair properly functioning habitat, appreciably reduce the functioning of
already impaired habitat, or retard the long-term progress of impaired habitat toward PFC.
Periodically, NMFS will evaluate the effectiveness of an approved program in maintaining and
achieving habitat function that provides for conservation of the listed salmonids. Whenever
warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered
or strengthened. Changes may be identified if the program is not protecting desired habitat
functions, or where even with the habitat characteristics and functions originally targeted,
habitat is not supporting population productivity levels needed to conserve the ESU. If any
jurisdiction within the limit does not make changes to respond adequately to the new
information in the shortest amount of time feasible, but not longer than 1 year, NMFS will
publish notification in the FEDERAL REGISTER announcing its intention to withdraw the limit so
that take prohibitions would then apply to the program as to all other activity not within a limit.
Such an announcement will provide for a comment period of no less than 30 days, after which
NMFS will make a final determination whether to subject the activities to the ESA section
9(a)(1) prohibitions.
(12) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to municipal,
residential, commercial, and industrial (MRCI) development (including redevelopment) activities
provided that:
(i)

Such development occurs pursuant to city, county, or regional government ordinances or plans
that NMFS has determined are adequately protective of listed species; or within the jurisdiction
of the Metro regional government in Oregon and pursuant to ordinances that Metro has found
comply with its Urban Growth Management Functional Plan (Functional Plan) following a
determination by NMFS that the Functional Plan is adequately protective. NMFS approval or
determinations about any MRCI development ordinances or plans, including the Functional
Plan, shall be a written approval by NMFS Northwest or Southwest Regional Administrator,
whichever is appropriate. NMFS will apply the following 12 evaluation considerations when
reviewing MRCI development ordinances or plans to assess whether they adequately conserve
listed salmonids by maintaining and restoring properly functioning habitat conditions:
(A) MRCI development ordinance or plan ensures that development will avoid inappropriate
areas such as unstable slopes, wetlands, areas of high habitat value, and similarly
constrained sites.

50 CFR 223.203(b)(12)(i)(A) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.203(b)(12)(i)(B)

(B) MRCI development ordinance or plan adequately avoids stormwater discharge impacts to
water quality and quantity or to the hydrograph of the watershed, including peak and base
flows of perennial streams.
(C) MRCI development ordinance or plan provides adequately protective riparian area
management requirements to attain or maintain PFC around all rivers, estuaries, streams,
lakes, deepwater habitats, and intermittent streams. Compensatory mitigation is provided,
where necessary, to offset unavoidable damage to PFC due to MRCI development impacts
to riparian management areas.
(D) MRCI development ordinance or plan avoids stream crossings by roads, utilities, and other
linear development wherever possible, and, where crossings must be provided, minimize
impacts through choice of mode, sizing, and placement.
(E) MRCI development ordinance or plan adequately protects historical stream meander
patterns and channel migration zones and avoids hardening of stream banks and
shorelines.
(F) MRCI development ordinance or plan adequately protects wetlands and wetland functions,
including isolated wetlands.
(G) MRCI development ordinance or plan adequately preserves the hydrologic capacity of
permanent and intermittent streams to pass peak flows.
(H) MRCI development ordinance or plan includes adequate provisions for landscaping with
native vegetation to reduce need for watering and application of herbicides, pesticides,
and fertilizer.
(I)

MRCI development ordinance or plan includes adequate provisions to prevent erosion and
sediment run-off during construction.

(J) MRCI development ordinance or plan ensures that water supply demands can be met
without impacting flows needed for threatened salmonids either directly or through
groundwater withdrawals and that any new water diversions are positioned and screened
in a way that prevents injury or death of salmonids.
(K) MRCI development ordinance or plan provides necessary enforcement, funding, reporting,
and implementation mechanisms and formal plan evaluations at intervals that do not
exceed 5 years.
(L) MRCI development ordinance and plan complies with all other state and Federal
environmental and natural resource laws and permits.
(ii) The city, county or regional government provides NMFS with annual reports regarding
implementation and effectiveness of the ordinances, including: any water quality monitoring
information the jurisdiction has available; aerial photography (or some other graphic display) of
each MRCI development or MRCI expansion area at sufficient detail to demonstrate the width
and vegetation condition of riparian set-backs; information to demonstrate the success of
stormwater management and other conservation measures; and a summary of any flood
damage, maintenance problems, or other issues.

50 CFR 223.203(b)(12)(ii) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.203(b)(12)(iii)

(iii) NMFS finds the MRCI development activity to be consistent with the conservation of listed
salmonids' habitat when it contributes to the attainment and maintenance of PFC. NMFS
defines PFC as the sustained presence of a watershed's habitat-forming processes that are
necessary for the long-term survival of salmonids through the full range of environmental
variation. Actions that affect salmonid habitat must not impair properly functioning habitat,
appreciably reduce the functioning of already impaired habitat, or retard the long-term progress
of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved program for its
effectiveness in maintaining and achieving habitat function that provides for conservation of
the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which
the program needs to be altered or strengthened. Changes may be identified if the program is
not protecting desired habitat functions, or where even with the habitat characteristics and
functions originally targeted, habitat is not supporting population productivity levels needed to
conserve the ESU. If any jurisdiction within the limit does not make changes to respond
adequately to the new information in the shortest amount of time feasible, but not longer than 1
year, NMFS will publish notification in the FEDERAL REGISTER announcing its intention to withdraw
the limit so that take prohibitions would then apply to the program as to all other activity not
within a limit. Such an announcement will provide for a comment period of no less than 30
days, after which NMFS will make a final determination whether to subject the activities to the
ESA section 9(a)(1) prohibitions.
(iv) Prior to approving any city, county, or regional government ordinances or plans as within this
limit, or approving any substantive change in an ordinance or plan within this limit, NMFS will
publish notification in the FEDERAL REGISTER announcing the availability of the ordinance or plan
or the draft changes for public review and comment. Such an announcement will provide for a
comment period of no less than 30 days.
(13) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs
and steelhead DPSs (of the genus Oncorhynchus) listed in § 223.102 do not apply to non-Federal
forest management activities conducted in the State of Washington provided that:
(i)

The action is in compliance with forest practice regulations adopted and implemented by the
Washington Forest Practices Board that NMFS has found are at least as protective of habitat
functions as are the regulatory elements of the Forests and Fish Report dated April 29, 1999,
and submitted to the Forest Practices Board by a consortium of landowners, tribes, and state
and Federal agencies.

(ii) All non-regulatory elements of the Forests and Fish Report are being implemented.
(iii) Actions involving use of herbicides, pesticides, or fungicides are not included within this limit.
(iv) Actions taken under alternative plans are included in this limit provided that the Washington
Department of Natural Resources (WDNR) finds that the alternate plans protect physical and
biological processes at least as well as the state forest practices rules and provided that NMFS,
or any resource agency or tribe NMFS designates, has the opportunity to review the plan at
every stage of the development and implementation. A plan may be excluded from this limit if,
after such review, WDNR determines that the plan is not likely to adequately protect listed
salmon.

50 CFR 223.203(b)(13)(iv) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.203(b)(13)(v)

(v) Prior to determining that regulations adopted by the Forest Practice Board are at least as
protective as the elements of the Forests and Fish Report, NMFS will publish notification in the
FEDERAL REGISTER announcing the availability of the Report and regulations for public review and
comment.
(vi) NMFS finds the activities to be consistent with the conservation of listed salmonids' habitat by
contributing to the attainment and maintenance of PFC. NMFS defines PFC as the sustained
presence of a watershed's natural habitat-forming processes that are necessary for the longterm survival of salmonids through the full range of environmental variation. Actions that affect
salmonid habitat must not impair properly functioning habitat, appreciably reduce the
functioning of already impaired habitat, or retard the long-term progress of impaired habitat
toward PFC. Programs must meet this biological standard in order for NMFS to find they qualify
for a habitat-related limit. NMFS uses the best available science to make these determinations.
NMFS may review and revise previous findings as new scientific information becomes
available. NMFS will evaluate the effectiveness of the program in maintaining and achieving
habitat function that provides for conservation of the listed salmonids. If the program is not
adequate, NMFS will identify to the jurisdiction ways in which the program needs to be altered
or strengthened. Changes may be identified if the program is not protecting desired habitat
functions or where even with the habitat characteristics and functions originally targeted,
habitat is not supporting population productivity levels needed to conserve the ESU. If
Washington does not make changes to respond adequately to the new information, NMFS will
publish notification in the FEDERAL REGISTER announcing its intention to withdraw the limit on
activities associated with the program. Such an announcement will provide for a comment
period of no less than 30 days, after which NMFS will make a final determination whether to
subject the activities to the ESA section 9(a)(1) take prohibitions.
(vii) NMFS approval of regulations shall be a written approval by NMFS Northwest Regional
Administrator.
(c) Affirmative Defense. In connection with any action alleging a violation of the prohibitions of paragraph (a)
of this section with respect to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in § 223.102, any person claiming the benefit of any limit listed in paragraph (b) of
this section or § 223.204(a) shall have a defense where the person can demonstrate that the limit is
applicable and was in force, and that the person fully complied with the limit at the time of the alleged
violation. This defense is an affirmative defense that must be raised, pleaded, and proven by the
proponent. If proven, this defense will be an absolute defense to liability under section 9(a)(1)(G) of the
ESA with respect to the alleged violation.
(d) Severability. The provisions of this section and the various applications thereof are distinct and severable
from one another. If any provision or the application thereof to any person or circumstances is stayed or
determined to be invalid, such stay or invalidity shall not affect other provisions, or the application of such
provisions to other persons or circumstances, which can be given effect without the stayed or invalid
provision or application.

Appendix A to § 223.203—List of Guidance Documents
The following is a list of documents cited in the regulatory text. Copies of these documents may be obtained
upon request from the Northwest or Southwest Regional Administrators (see Table 1 in § 600.502 of this title).

50 CFR 223.203(d) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.204

1. Oregon Department of Transportation (ODOT) Maintenance Management System Water Quality and Habitat
Guide (July, 1999).
2. Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act.
3. Fish Screening Criteria for Anadromous Salmonids, National Marine Fisheries Service, Southwest Region,
1997.
4. Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units. (June 2000).
[65 FR 42475, July 10, 2000, as amended at 67 FR 1129, Jan. 9, 2002; 67 FR 68725, Nov. 12, 2002; 70 FR 37202, 37203, June 28,
2005; 71 FR 5180, Feb. 1, 2006; 73 FR 7843, Feb. 11, 2008; 73 FR 55455, Sept. 25, 2008; 76 FR 12293, Mar. 7, 2011; 79 FR 20812,
Apr. 14, 2014]

§ 223.204 Tribal plans.
(a) Limits on the prohibitions. The prohibitions of § 223.203(a) of this subpart relating to threatened species
of salmonids listed in § 223.102 do not apply to any activity undertaken by a tribe, tribal member, tribal
permittee, tribal employee, or tribal agent in compliance with a tribal resource management plan (Tribal
Plan), provided that the Secretary determines that implementation of such Tribal Plan will not appreciably
reduce the likelihood of survival and recovery of the listed salmonids. In making that determination the
Secretary shall use the best available biological data (including any tribal data and analysis) to determine
the Tribal Plan's impact on the biological requirements of the species, and will assess the effect of the
Tribal Plan on survival and recovery, consistent with legally enforceable tribal rights and with the
Secretary's trust responsibilities to tribes.
(b) Consideration of a Tribal Plan.
(1) A Tribal Plan may include but is not limited to plans that address fishery harvest, artificial production,
research, or water or land management, and may be developed by one tribe or jointly with other
tribes. The Secretary will consult on a government-to-government basis with any tribe that so
requests and will provide to the maximum extent practicable technical assistance in examining
impacts on listed salmonids and other salmonids as tribes develop tribal resource management
plans that meet the management responsibilities and needs of the tribes. A Tribal Plan must specify
the procedures by which the tribe will enforce its provisions.
(2) Where there exists a Federal court proceeding with continuing jurisdiction over the subject matter of
a Tribal Plan, the plan may be developed and implemented within the ongoing Federal Court
proceeding. In such circumstances, compliance with the Tribal Plan's terms shall be determined
within that Federal Court proceeding.
(3) The Secretary shall seek comment from the public on the Secretary's pending determination whether
or not implementation of a Tribal Plan will appreciably reduce the likelihood of survival and recovery
of the listed salmonids.
(4) The Secretary shall publish notification in the FEDERAL REGISTER of any determination regarding a
Tribal Plan and the basis for that determination.
[65 FR 42485, July 10, 2000. Redesignated at 70 FR 37203, June 28, 2005]

50 CFR 223.204(b)(4) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.205

§ 223.205 Sea turtles.
(a) The prohibitions of section 9 of the Act (16 U.S.C. 1538) relating to endangered species apply to
threatened species of sea turtle, except as provided in § 223.206.
(b) Except as provided in § 223.206, it is unlawful for any person subject to the jurisdiction of the United
States to do any of the following:
(1) Own, operate, or be on board a vessel, except if that vessel is in compliance with all applicable
provisions of § 223.206(d);
(2) Fish for, catch, take, harvest, or possess, fish or wildlife while on board a vessel, except if that vessel
is in compliance with all applicable provisions of § 223.206(d);
(3) Fish for, catch, take, harvest, or possess, fish or wildlife contrary to any notice of tow-time or other
restriction specified in, or issued under, § 223.206(d)(3) or (d)(4);
(4) Possess fish or wildlife taken in violation of paragraph (b) of this section;
(5) Fail to follow any of the sea turtle handling and resuscitation requirements specified in §
223.206(d)(1);
(6) Possess a sea turtle in any manner contrary to the handling and resuscitation requirements of §
223.206(d)(1);
(7) Fail to comply immediately, in the manner specified at § 600.730 (b) through (d) of this Title, with
instructions and signals specified therein issued by an authorized officer, including instructions and
signals to haul back a net for inspection;
(8) Refuse to allow an authorized officer to board a vessel, or to enter an area where fish or wildlife may
be found, for the purpose of conducting a boarding, search, inspection, seizure, investigation, or
arrest in connection with enforcement of this section;
(9) Destroy, stave, damage, or dispose of in any manner, fish or wildlife, gear, cargo, or any other matter
after a communication or signal from an authorized officer, or upon the approach of such an officer
or of an enforcement vessel or aircraft, before the officer has an opportunity to inspect same, or in
contravention of directions from the officer;
(10) Assault, resist, oppose, impede, intimidate, threaten, obstruct, delay, prevent, or interfere with an
authorized officer in the conduct of any boarding, search, inspection, seizure, investigation, or arrest
in connection with enforcement of this section;
(11) Interfere with, delay, or prevent by any means, the apprehension of another person, knowing that
such person committed an act prohibited by this section;
(12) Resist a lawful arrest for an act prohibited by this section;
(13) Make a false statement, oral or written, to an authorized officer or to the agency concerning the
fishing for, catching, taking, harvesting, landing, purchasing, selling, or transferring fish or wildlife, or
concerning any other matter subject to investigation under this section by such officer, or required to
be submitted under this part 223;
(14) Sell, barter, trade or offer to sell, barter, or trade, a TED that is not an approved TED;
(15) Fail to comply with the restrictions set forth in § 223.206(d)(10) regarding pound net leaders;
50 CFR 223.205(b)(15) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.205(b)(16)

(16) Set, use, or fail to remove a pound net leader in Pound Net Regulated Area I or Pound Net Regulated
Area II at any time from May 6 through July 15 that does not meet the leader construction
specifications described in 50 CFR 223.206(d)(10) and 50 CFR 222.102;
(17) Set, fish with, or fail to remove a modified pound net leader in Pound Net Regulated Area I or Pound
Net Regulated Area II defined in 50 CFR 222.102 and referenced in 50 CFR 223.206(d)(10) at any
time from May 6 through July 15 unless the pound net licensee and the vessel operator meet the
modified pound net leader compliance training requirements in accordance with §
223.206(d)(10)(vii).
(18) Alter or replace any portion of a modified pound net leader so that the altered or replaced portion no
longer meets the modified pound net leader definition in 50 CFR 222.102, unless that alteration or
replacement occurs outside the regulated period of May 6 through July 15.
(19) Set, fish with, or fail to remove a modified pound net leader at any time from May 6 through July 15 in
Pound Net Regulated Area I or Pound Net Regulated Area II unless the fisherman has on board the
vessel a valid modified pound net leader compliance training certificate issued by NMFS.
(20) Set, fish with, or fail to remove pound net gear in Pound Net Regulated Area I or Pound Net Regulated
Area II, unless it has the all three continuous sections as defined in 50 CFR 222.102, except that one
or more sections may be missing for a maximum period of 10 days for purposes of setting,
removing, and/or repairing pound nets.
(21) Fail to comply with the restrictions set forth in § 223.206(d)(11) regarding sea scallop dredges; or
(22) Attempt to do, solicit another to do, or cause to be done, any of the foregoing.
(c) In connection with any action alleging a violation of this section, any person claiming the benefit of any
exemption, exception, or permit under this subpart B has the burden of proving that the exemption,
exception, or permit is applicable, was granted, and was valid and in force at the time of the alleged
violation. Further, any person claiming that a modification made to a TED that is the subject of such an
action complies with the requirements of § 223.207 (c) or
(d) has the burden of proving such claim.
[64 FR 14069, Mar. 23, 1999, as amended at 67 FR 41203, June 17, 2002; 69 FR 25012, May 5, 2004; 71 FR 50372, Aug. 25, 2006;
73 FR 68354, Nov. 18, 2008; 80 FR 6928, Feb. 9, 2015]

§ 223.206 Exceptions to prohibitions relating to sea turtles.
(a) Permits —
(1) Scientific research, education, zoological exhibition, or species enhancement permits. The Assistant
Administrator may issue permits authorizing activities which would otherwise be prohibited under §
223.205(a) for scientific or educational purposes, for zoological exhibition, or to enhance the
propagation or survival of threatened species of sea turtles, in accordance with and subject to the
conditions of part 222, subpart C—General Permit Procedures.
(2) Incidental-take permits. The Assistant Administrator may issue permits authorizing activities that
would otherwise be prohibited under § 223.205(a) in accordance with section 10(a)(1)(B) of the Act
(16 U.S.C. 1539(a)(1)(B)), and in accordance with, and subject to, the implementing regulations in
part 222 of this chapter. Such permits may be issued for the incidental taking of threatened and
endangered species of sea turtles.
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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.206(b)

(b) Exception for injured, dead, or stranded specimens. If any member of any threatened species of sea turtle
is found injured, dead, or stranded, any agent or employee of the National Marine Fisheries Service, the
Fish and Wildlife Service, the U.S. Coast Guard, or any other Federal land or water management agency, or
any agent or employee of a state agency responsible for fish and wildlife who is designated by his or her
agency for such purposes, may, when acting in the course of his or her official duties, take such
specimens without a permit if such taking is necessary to aid a sick, injured, or stranded specimen or
dispose of a dead specimen or salvage a dead specimen which may be useful for scientific study.
Whenever possible, live specimens shall be returned to their aquatic environment as soon as possible.
Every action shall be reported in writing to the Assistant Administrator within 30 days, and reports of
further occurrence shall be made as deemed appropriate by the Assistant Administrator until the
specimen is either returned to its environment or disposed of. Reports shall be mailed by registered or
certified mail, return receipt requested, to the Assistant Administrator and shall contain the following
information:
(1) Name and position of the official or employee involved;
(2) Description of the specimen(s) involved;
(3) Date and location of disposal;
(4) Circumstances requiring the action;
(5) Method of disposal;
(6) Disposition of the specimen(s), including, where the specimen(s) has been retained in captivity, a
description of the place and means of confinement, and the measures taken for its maintenance and
care; and
(7) Such other information as the Assistant Administrator may require.
(c) Exception for research or conservation. Any employee or agent of the National Marine Fisheries Service,
the Fish and Wildlife Service, or a state fish and wildlife agency operating a conservation program
pursuant to the terms of a Cooperative Agreement with the National Marine Fisheries Service or the Fish
and Wildlife Service in accordance with section 6(c) of the Act, designated by his or her agency for such
purposes, may, when acting in the course of his or her official duties, take any threatened species to carry
out scientific research or conservation programs. All such takings shall be reported within 30 days of the
taking to the Assistant Administrator who may request additional reports of the taking and research at the
Assistant Administrator's discretion.
(d) Exception for incidental taking. The prohibitions against taking in § 223.205(a) do not apply to the
incidental take of any member of a threatened species of sea turtle (i.e., a take not directed towards such
member) during fishing or scientific research activities, to the extent that those involved are in compliance
with all applicable requirements of paragraphs (d)(1) through (d)(11) of this section, or in compliance with
the terms and conditions of an incidental take permit issued pursuant to paragraph (a)(2) of this section.
(1) Handling and resuscitation requirements.
(i)

Any specimen taken incidentally during the course of fishing or scientific research activities
must be handled with due care to prevent injury to live specimens, observed for activity, and
returned to the water according to the following procedures:

50 CFR 223.206(d)(1)(i) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.206(d)(1)(i)(A)

(A) Sea turtles that are actively moving or determined to be dead as described in paragraph
(d)(1)(i)(C) of this section must be released over the stern of the boat. In addition, they
must be released only when fishing or scientific collection gear is not in use, when the
engine gears are in neutral position, and in areas where they are unlikely to be recaptured
or injured by vessels.
(B) Resuscitation must be attempted on sea turtles that are comatose, or inactive, as
determined in paragraph (d)(1) of this section, by:
(1) Placing the turtle on its bottom shell (plastron) so that the turtle is right side up and
elevating its hindquarters at least 6 inches (15.2 cm) for a period of 4 up to 24 hours.
The amount of the elevation depends on the size of the turtle; greater elevations are
needed for larger turtles. Periodically, rock the turtle gently left to right and right to
left by holding the outer edge of the shell (carapace) and lifting one side about 3
inches (7.6 cm) then alternate to the other side. Gently touch the eye and pinch the
tail (reflex test) periodically to see if there is a response.
(2) Sea turtles being resuscitated must be shaded and kept damp or moist but under no
circumstance be placed into a container holding water. A water-soaked towel placed
over the head, carapace, and flippers is the most effective method in keeping a turtle
moist.
(3) Sea turtles that revive and become active must be released over the stern of the boat
only when fishing or scientific collection gear is not in use, when the engine gears are
in neutral position, and in areas where they are unlikely to be recaptured or injured by
vessels. Sea turtles that fail to respond to the reflex test or fail to move within 4
hours (up to 24, if possible) must be returned to the water in the same manner as
that for actively moving turtles.
(C) A turtle is determined to be dead if the muscles are stiff (rigor mortis) and/or the flesh has
begun to rot; otherwise the turtle is determined to be comatose or inactive and
resuscitation attempts are necessary.
(ii) In addition to the provisions of paragraph (d)(1)(i) of this section, a person aboard a vessel in
the Atlantic, including the Caribbean Sea and the Gulf of Mexico, that has pelagic or bottom
longline gear on board and that has been issued, or is required to have, a limited access permit
for highly migratory species under § 635.4 of this title, must comply with the handling and
release requirements specified in § 635.21 of this title.
(iii) Any specimen taken incidentally during the course of fishing or scientific research activities
must not be consumed, sold, landed, offloaded, transshipped, or kept below deck.
(2) Gear requirements for trawlers —
(i)

TED requirement for shrimp trawlers. Any shrimp trawler that is in the Atlantic Area or Gulf Area
must have an approved TED installed in each net that is rigged for fishing. A net is rigged for
fishing if it is in the water, or if it is shackled, tied, or otherwise connected to any trawl door or
board, or to any tow rope, cable, pole or extension, either on board or attached in any manner to
the shrimp trawler. Exceptions to the TED requirement for shrimp trawlers are provided in
paragraph (d)(2)(ii) of this section.

(ii) Exemptions from the TED requirement —
50 CFR 223.206(d)(2)(ii) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.206(d)(2)(ii)(A)

(A) Alternative tow-time restrictions. A shrimp trawler is exempt from the TED requirements of
paragraph (d)(2)(i) of this section if it complies with the alternative tow-time restrictions in
paragraph (d)(3)(i) of this section and if it:
(1) Has on board no power or mechanical-advantage trawl retrieval system (i.e., any
device used to haul any part of the net aboard);
(2) Is a bait shrimper that retains all live shrimp on board with a circulating seawater
system, if it does not possess more than 32 lb. (14.5 kg) of dead shrimp on board, if
it has a valid original state bait-shrimp license, and if the state license allows the
licensed vessel to participate in the bait shrimp fishery exclusively;
(3) Has only a pusher-head trawl or a wing net, or has a skimmer trawl on a vessel less
than 40 ft (12.2 m) in length as indicated on the vessel's state vessel registration or
U.S. Coast Guard vessel documentation.
(4) Is in an area during a period for which tow-time restrictions apply under paragraphs
(d)(3)(ii) or (iii) of this section, if it complies with all applicable provisions imposed
under those paragraphs; or
(5) Is using a single test net (try net) with a headrope length of 12 ft (3.6 m) or less and
with a footrope length of 15 ft (4.6 m) or less, if it is pulled immediately in front of
another net or is not connected to another net in any way, if no more than one test
net is used at a time, and if it is not towed as a primary net, in which case the
exemption under this paragraph (d)(2)(ii)(A) applies to the test net.
(B) Exempted gear or activities. The following fishing gear or activities are exempted from the
TED requirements of paragraph (d)(2)(i) of this section:
(1) A beam or roller trawl, if the frame is outfitted with rigid vertical bars, and if none of
the spaces between the bars, or between the bars and the frame, exceeds 4 inches
(10.2 cm); and
(2) A shrimp trawler fishing for, or possessing, royal red shrimp, if royal red shrimp
constitutes at least 90 percent (by weight) of all shrimp either found on board, or
offloaded from that shrimp trawler.
(iii) Gear requirement—summer flounder trawlers —
(A) TED requirement.
(1) Any summer flounder trawler in the summer flounder fishery-sea turtle protection
area must have an approved TED installed in each net that is rigged for fishing. A net
is rigged for fishing if it is in the water, or if it is shackled, tied, or otherwise
connected to any trawl door or board, or to any tow rope, cable, pole or extension,
either on board or attached in any manner to the summer flounder trawler.
Exceptions to the TED requirement for summer flounder trawlers are provided in
paragraph (d)(2)(iii)(B) of this section.
(2) Any approved hard TED or special hard TED installed in a summer flounder trawl
must be installed in a TED extension. The TED extension is a cylindrical piece of
webbing distinct from the main trawl's body, wings, codend, and any other net
extension(s). The TED extension must be constructed of webbing no larger than 3.5
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50 CFR 223.206(d)(2)(iii)(B)

inch (8.9 cm) stretched mesh. The TED extension must extend at least 24 inches
(61.0 cm) but not more than 36 inches (91.4 cm) forward of the leading edge of the
TED and aft of the trailing edge of the grid.
(B) Exemptions from the TED requirement. Any summer flounder trawler north of 35°46.1′ N.
lat. (Oregon Inlet, NC) from January 15 through March 15 annually is exempt from the TED
requirement of paragraph (d)(2)(iii)(A) of this section, unless the Assistant Administrator
determines that TED use is necessary to protect sea turtles or ensure compliance,
pursuant to the procedures of paragraph (d)(4) of this section.
(C) Monitoring. Summer flounder trawlers must carry onboard a NMFS-approved observer if
requested by the Southeast Regional Administrator or the Northeast Regional
Administrator. A written notification will be sent to the address specified for the vessel in
either the NMFS or state fishing permit application, or to the address specified for
registration or documentation purposes, or upon written notification otherwise served on
the owner or operator of the vessel. Owners and operators must comply with the terms
and conditions specified in such written notification. All NMFS-approved observers will
report any violations of this section, or other applicable regulations and laws. Information
collected by observers may be used for enforcement purposes.
(D) Additional sea turtle conservation measures. The Assistant Administrator may impose
other such restrictions upon summer flounder trawlers as the Assistant Administrator
deems necessary or appropriate to protect sea turtles and ensure compliance, pursuant to
the procedures of paragraph (d)(4) of this section. Such measures may include, but are
not limited to, a requirement to use TEDs in areas other than summer flounder fishery-sea
turtle protection area, a requirement to use limited tow-times, and closure of the fishery.
(3) Tow-time restrictions —
(i)

Duration of tows. If tow-time restrictions are used pursuant to paragraph (d)(2)(ii), (d)(3)(ii), or
(d)(3)(iii) of this section, a shrimp trawler must limit tow times. The tow time begins at the time
the trawl door enters the water and ends at the time the trawl door is removed from the water.
For a trawl that is not attached to a door, the tow time begins at the time the codend enters the
water and ends at the time the codend is emptied of catch on deck. Tow times may not exceed:
(A) 55 minutes from April 1 through October 31; and
(B) 75 minutes from November 1 through March 31.

(ii) Alternative—special environmental conditions. The Assistant Administrator may allow
compliance with tow-time restrictions, as an alternative to the TED requirement of paragraph
(d)(2)(i) of this section, if the Assistant Administrator determines that the presence of algae,
seaweed, debris or other special environmental conditions in a particular area makes trawling
with TED-equipped nets impracticable.
(iii) Substitute—ineffectiveness of TEDs. The Assistant Administrator may require compliance with
tow-time restrictions, as a substitute for the TED requirement of paragraph (d)(2)(i) of this
section, if the Assistant Administrator determines that TEDs are ineffective in protecting sea
turtles.

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50 CFR 223.206(d)(3)(iv)

(iv) Notice; applicability; conditions. The Assistant Administrator will publish notification concerning
any tow-time restriction imposed under paragraph (d)(3)(ii) or (iii) of this section in the FEDERAL
REGISTER and will announce it in summary form on channel 16 of the marine VHF radio. A
notification of tow-time restrictions will include findings in support of these restrictions as an
alternative to, or as substitute for, the TED requirements. The notification will specify the
effective dates, the geographic area where tow-time restrictions apply, and any applicable
conditions or restrictions that the Assistant Administrator determines are necessary or
appropriate to protect sea turtles and ensure compliance, including, but not limited to, a
requirement to carry observers, to register vessels in accordance with procedures at paragraph
(d)(5) of this section, or for all shrimp trawlers in the area to synchronize their tow times so that
all trawl gear remains out of the water during certain times. A notification withdrawing tow-time
restrictions will include findings in support of that action.
(v) Procedures. The Assistant Administrator will consult with the appropriate fishery officials (state
or Federal) where the affected shrimp fishery is located in issuing a notification concerning
tow-time restrictions. An emergency notification can be effective for a period of up to 30 days
and may be renewed for additional periods of up to 30 days each if the Assistant Administrator
finds that the conditions necessitating the imposition of tow-time restrictions continue to exist.
The Assistant Administrator may invite comments on such an action, and may withdraw or
modify the action by following procedures similar to those for implementation. The Assistant
Administrator will implement any permanent tow-time restriction through rulemaking.
(4) Limitations on incidental takings during fishing activities —
(i)

Limitations. The exemption for incidental takings of sea turtles in paragraph (d) of this section
does not authorize incidental takings during fishing activities if the takings:
(A) Would violate the restrictions, terms, or conditions of an incidental take statement or
biological opinion;
(B) Would violate the restrictions, terms, or conditions of an incidental take permit; or
(C) May be likely to jeopardize the continued existence of a species listed under the Act.

(ii) Determination; restrictions on fishing activities. The Assistant Administrator may issue a
determination that incidental takings during fishing activities are unauthorized. Pursuant
thereto, the Assistant Administrator may restrict fishing activities in order to conserve a species
listed under the Act, including, but not limited to, restrictions on the fishing activities of vessels
subject to paragraph (d)(2) of this section. The Assistant Administrator will take such action if
the Assistant Administrator determines that restrictions are necessary to avoid unauthorized
takings that may be likely to jeopardize the continued existence of a listed species. The
Assistant Administrator may withdraw or modify a determination concerning unauthorized
takings or any restriction on fishing activities if the Assistant Administrator determines that
such action is warranted.
(iii) Notice; applicability; conditions. The Assistant Administrator will publish a notification of a
determination concerning unauthorized takings or a notification concerning the restriction of
fishing activities in the FEDERAL REGISTER. The Assistant Administrator will provide as much
advance notice as possible, consistent with the requirements of the Act, and will announce the
notification in summary form on channel 16 of the marine VHF radio. Notification of a
determination concerning unauthorized takings will include findings in support of that
determination; specify the fishery, including the target species and gear used by the fishery, the
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50 CFR 223.206(d)(4)(iv)

area, and the times, for which incidental takings are not authorized; and include such other
conditions and restrictions as the Assistant Administrator determines are necessary or
appropriate to protect sea turtles and ensure compliance. Notification of restriction of fishing
activities will include findings in support of the restriction, will specify the time and area where
the restriction is applicable, and will specify any applicable conditions or restrictions that the
Assistant Administrator determines are necessary or appropriate to protect sea turtles and
ensure compliance. Such conditions and restrictions may include, but are not limited to,
limitations on the types of fishing gear that may be used, tow-time restrictions, alteration or
extension of the periods of time during which particular tow-time requirements apply,
requirements to use TEDs, registration of vessels in accordance with procedures at paragraph
(d)(5) of this section, and requirements to provide observers. Notification of withdrawal or
modification will include findings in support of that action.
(iv) Procedures. The Assistant Administrator will consult with the appropriate fisheries officials
(state or Federal) where the fishing activities are located in issuing notification of a
determination concerning unauthorized takings or notification concerning the restriction of
fishing activities. An emergency notification will be effective for a period of up to 30 days and
may be renewed for additional periods of up to 30 days each, except that emergency placement
of observers will be effective for a period of up to 180 days and may be renewed for an
additional period of 60 days. The Assistant Administrator may invite comments on such action,
and may withdraw or modify the action by following procedures similar to those for
implementation. The Assistant Administrator will implement any permanent determination or
restriction through rulemaking.
(5)-(6) [Reserved]
(7) Restrictions applicable to gillnet fisheries in North Carolina. No person may fish with gillnet fishing
gear which has a stretched mesh size larger than 41⁄4 inches (10.8 cm), annually from September 1
through December 15, in the inshore waters of Pamlico Sound, North Carolina, and all contiguous
tidal waters, bounded on the north by 35°46.3′ N. lat., on the south by 35°00′ N. lat., and on the west
by 76°30′ W. long.
(8) Restrictions applicable to large mesh gillnet fisheries in the mid-Atlantic region. No person may fish
with or possess on board a boat, any gillnet with a stretched mesh size 7-inches (17.8 cm) or larger,
unless such gillnets are covered with canvas or other similar material and lashed or otherwise
securely fastened to the deck or the rail, and all buoys larger than 6-inches (15.2 cm) in diameter,
high flyers, and anchors are disconnected. This restriction applies in the Atlantic Exclusive Economic
Zone (as defined in 50 CFR 600.10) during the following time periods and in the following area:
(i)

Waters north of 33°51.0′ N. (North Carolina/South Carolina border at the coast) and south of
35°46.0′ N. (Oregon Inlet) at any time;

(ii) Waters north of 35°46.0′ N. (Oregon Inlet) and south of 3°22.5′ N. (Currituck Beach Light, NC)
from March 16 through January 14;
(iii) Waters north of 36°22.5′ N. (Currituck Beach Light, NC) and south of 37°34.6′ N.
(Wachapreague Inlet, VA) from April 1 through January 14; and
(iv) Waters north of 37°34.6′ N. (Wachapreague Inlet, VA) and south of 37°56.0′ N. (Chincoteague,
VA) from April 16 through January 14.

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50 CFR 223.206(d)(9)

(9) Restrictions applicable to Pacific pelagic longline vessels. In addition to the general prohibitions
specified in § 600.725 of chapter VI of this title, it is unlawful for any person who is not operating
under a western Pacific longline permit under § 665.801 of this title to do any of the following on the
high seas of the Pacific Ocean east of 150° W. long. and north of the Equator (0° N. lat.):
(i)

Direct fishing effort toward the harvest of swordfish (Xiphias gladius) using longline gear.

(ii) Possess a light stick on board a longline vessel. A light stick as used in this paragraph is any
type of light emitting device, including any fluorescent glow bead, chemical, or electrically
powered light that is affixed underwater to the longline gear.
(iii) An operator of a longline vessel subject to this section may land or possess no more than 10
swordfish from a fishing trip where any part of the trip included fishing east of 150° W. long.
and north of the equator (0° N. lat.).
(iv) Fail to employ basket-style longline gear such that the mainline is deployed slack when fishing.
(v) When a conventional monofilament longline is deployed by a vessel, no fewer than 15 branch
lines may be set between any two floats. Vessel operators using basket-style longline gear
must set a minimum of 10 branch lines between any 2 floats.
(vi) Longline gear must be deployed such that the deepest point of the main longline between any
two floats, i.e., the deepest point in each sag of the main line, is at a depth greater than 100 m
(328.1 ft or 54.6 fm) below the sea surface.
(10) Restrictions applicable to pound nets in Virginia —
(i)

Offshore pound net leaders in Pound Net Regulated Area I. During the time period of May 6
through July 15 each year, any offshore pound net leader in Pound Net Regulated Area I must
meet the definition of a modified pound net leader. Any offshore pound net leader in Pound Net
Regulated Area I that does not meet the definition of a modified pound net leader must be
removed from the water prior to May 6 and may not be reset until July 16.

(ii) Nearshore pound net leaders in Pound Net Regulated Area I and all pound net leaders in Pound
Net Regulated Area II. During the time period of May 6 to July 15 each year, any nearshore
pound net leader in Pound Net Regulated Area I and any pound net leader in Pound Net
Regulated Area II must have only mesh size less than 12 inches (30.5 cm) stretched mesh and
may not employ stringers. Any nearshore pound net leader in Pound Net Regulated Area I or
any pound net leader in Pound Net Regulated Area II with stretched mesh measuring 12 inches
(30.5 cm) or greater, or with stringers, must be removed from the water prior to May 6 and may
not be reset until July 16. A pound net leader is exempt from these measures only if it meets
the definition of a modified pound net leader.
(iii) Protocol for measuring mesh size. This protocol applies to measuring mesh size in leaders
described in 50 CFR 223.206(d)(10)(i) and 223.206(d)(10)(ii). Mesh sizes are measured by a
wedge-shaped gauge having a taper of 0.79 in. (2 cm) in 3.15 in. (8 cm) and a thickness of 0.09
in. (2.3 mm) inserted into the meshes under a pressure or pull of 11.02 lb. (5 kg). The mesh size
is the average of the measurement of any series of 20 consecutive meshes. The mesh in the
leader is measured at or near the horizontal and vertical center of a leader panel.
(iv) Reporting requirement. At any time during the year, if a sea turtle is taken live and uninjured in a
pound net operation, the operator of the vessel must report the incident to the NMFS Northeast
Regional Office, (978) 281-9328 or fax (978) 281-9394, within 24 hours of returning from the trip
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50 CFR 223.206(d)(10)(v)

in which the incidental take was discovered. The report shall include a description of the sea
turtles condition at the time of release and the measures taken as required in paragraph (d)(1)
of this section. At any time during the year, if a sea turtle is taken in a pound net operation, and
is determined to be injured, or if a turtle is captured dead, the operator of the vessel shall
immediately notify NMFS Northeast Regional Office and the appropriate rehabilitation or
stranding network, as determined by NMFS Northeast Regional Office.
(v) Monitoring. Owners or operators of pound net fishing operations must allow access to the
pound net gear so it may be observed by a NMFS-approved observer if requested by the
Northeast Regional Administrator. All NMFS-approved observers will report any violations of
this section, or other applicable regulations and laws. Information collected by observers may
be used for law enforcement purposes.
(vi) Expedited modification of restrictions and effective dates. From May 6 to July 15 of each year, if
NMFS receives information that one sea turtle is entangled alive or that one sea turtle is
entangled dead, and NMFS determines that the entanglement contributed to its death, in pound
net leaders that are in compliance with the restrictions described in paragraph (d)(10)(ii) of this
section, NMFS may issue a final rule modifying the restrictions on pound net leaders as
necessary to protect threatened sea turtles. Such modifications may include, but are not limited
to, reducing the maximum allowable mesh size of pound net leaders and prohibiting the use of
pound net leaders regardless of mesh size. In addition, if information indicates that a
significant level of sea turtle entanglements, impingements or strandings will likely continue
beyond July 15, NMFS may issue a final rule extending the effective date of the restrictions,
including any additional restrictions imposed under this paragraph (d)(10)(vi), for an additional
15 days, but not beyond July 30, to protect threatened sea turtles.
(vii) Modified pound net leader compliance training. Any pound net licensee and any vessel operator
who have modified pound net leaders set in Pound Net Regulated Area I or Pound Net
Regulated Area II at any time from May 6 through July 15 must have completed modified pound
net leader compliance training and possess on board the vessel a valid modified pound net
leader compliance training certificate issued by NMFS. NMFS retains discretion to provide
exemptions in limited circumstances where appropriate. Notice will be given by NMFS
announcing the times and locations of modified pound net leader compliance training.
(11) Restrictions applicable to sea scallop dredges in the mid-Atlantic —
(i)

Gear Modification. During the time period of May 1 through November 30, any vessel with a sea
scallop dredge and required to have a Federal Atlantic sea scallop fishery permit, regardless of
dredge size or vessel permit category, that enters waters west of 71° W. long., from the
shoreline to the outer boundary of the Exclusive Economic Zone must have on each dredge a
chain mat described as follows. The chain mat must be composed of horizontal (“tickler”)
chains and vertical (“up-and-down”) chains that are configured such that the openings formed
by the intersecting chains have no more than four sides. The vertical and horizontal chains
must be hung to cover the opening of the dredge bag such that the vertical chains extend from
the back of the cutting bar to the sweep. The horizontal chains must intersect the vertical
chains such that the length of each side of the openings formed by the intersecting chains is
less than or equal to 14 inches (35.5 cm) with the exception of the side of any individual
opening created by the sweep. The chains must be connected to each other with a shackle or

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50 CFR 223.206(d)(11)(ii)

link at each intersection point. The measurement must be taken along the chain, with the chain
held taut, and include one shackle or link at the intersection point and all links in the chain up to,
but excluding, the shackle or link at the other intersection point.
(ii) Any vessel that enters the waters described in paragraph (d)(11)(i) of this section and that is
required to have a Federal Atlantic sea scallop fishery permit must have the chain mat
configuration installed on all dredges for the duration of the trip.
(iii) Vessels subject to the requirements in paragraphs (d)(11)(i) and (ii) of this section transiting
waters west of 71° W. long., from the shoreline to the outer boundary of the Exclusive Economic
Zone, will be exempted from the chain-mat requirements provided the dredge gear is not
available for immediate use as defined by § 648.2 of this title and there are no scallops onboard.
[64 FR 14070, Mar. 23, 1999]

Editorial Note: For FEDERAL REGISTER citations affecting § 223.206, see the List of CFR Sections Affected, which
appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

Effective Date Notes: 1. At 64 FR 14070, Mar. 23, 1999, § 223.206 was revised. Paragraph (d)(5) contains
information collection and recordkeeping requirements and will not become effective until approval has been given
by the Office of Management and Budget.
2. At 67 FR 41203, June 17, 2002, § 223.206 was amended by adding paragraph (d)(2)(v). This paragraph contains
information collection and recordkeeping requirements and will not become effective until approval has been given
by the Office of Management and Budget.

§ 223.207 Approved TEDs.
Any netting, webbing, or mesh that may be measured to determine compliance with this section is subject to
measurement, regardless of whether it is wet or dry. Any such measurement will be of the stretched mesh size.
(a) Hard TEDs. Hard TEDs are TEDs with rigid deflector grids and are categorized as “hooped hard TEDs” and
“single-grid hard TEDs” such as the Matagorda and Georgia TED (Figures 3 & 4 to this part). Hard TEDs
complying with the following generic design criteria are approved TEDs:
(1) Construction materials —
(i)

Single-grid and inshore hooped hard TED. A single-grid hard TED or an inshore hooped hard TED
must be constructed of one or a combination of the following materials, unless otherwise
specifically restricted below, with minimum dimensions as follows:
(A) Solid steel rod with a minimum outside diameter of 1⁄4 inch (0.64 cm);
(B) Fiberglass or aluminum rod with a minimum outside diameter of 1⁄2 inch (1.27 cm); or
(C) Steel or aluminum round, oval, or rectangular tubing with a minimum outside diameter or
width of 1⁄2 inch (1.27 cm) and a minimum wall thickness of 1⁄8 inch (0.32 cm; also known
as schedule 40 tubing).

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50 CFR 223.207(a)(1)(i)(D)

(D) Steel or aluminum flat bar with dimensions no less than 1⁄4 inch (0.64 cm) in thickness by
11⁄2 inches (3.85 cm) in depth. For flat bar less than 3⁄8 inch (0.95 cm) in thickness, a
horizontal brace bar to reinforce the deflector bars must be permanently attached to the
frame and the rear face of each of the deflector bars within 4 inches (10.2 cm) of the
midpoint of the TED frame. The horizontal brace bar must be constructed of approved
material consistent with paragraph (a)(1)(i) of this section. The horizontal brace bar may
be offset behind the deflector bars, using spacer bars, not to exceed 5 inches (12.7 cm) in
length and constructed of the same size or larger flat bar as the deflector bars.
(ii) Offshore hooped hard TED. An offshore hooped hard TED must be constructed of aluminum,
with minimum dimensions as follows:
(A) Solid rod with a minimum outside diameter of 5⁄8 inch (1.59 cm); or
(B) Tubing with a minimum outside diameter of 1 inch (2.54 cm) and a minimum wall
thickness of 1⁄8 inch (0.32 cm).
(2) Method of attachment. A hard TED must be sewn into the trawl around the entire circumference of
the TED with heavy twine.
(3) Angle of deflector bars.
(i)

The angle of the deflector bars must be between 30° and 55° from the normal, horizontal flow
through the interior of the trawl, except as provided in paragraph (a)(3)(ii) of this section.

(ii) For any shrimp trawler fishing in the Gulf SFSTCA or the Atlantic SFSTCA, a hard TED with the
position of the escape opening at the bottom of the net when the net is in its deployed position,
the angle of the deflector bars from the normal, horizontal flow through the interior of the trawl,
at any point, must not exceed 55°, and the angle of the bottom-most 4 inches (10.2 cm) of each
deflector bar, measured along the bars, must not exceed 45° (Figures 14a and 14b to this part).
(4) Space between bars. The space between deflector bars and the deflector bars and the TED frame
must not exceed 4 inches (10.2 cm), except for TEDs required to be installed in skimmer trawls,
where the space between deflector bars and the deflector bars and the TED frame must not exceed
3 inches (7.6 cm).
(5) Direction of bars. The deflector bars must run from top to bottom of the TED, as the TED is
positioned in the net, except that up to four of the bottom bars and two of the top bars, including the
frame, may run from side to side of the TED. The deflector bars must be permanently attached to the
TED frame or to the horizontal bars, if used, at both ends.
(6) Position of the escape opening. The escape opening must be made by removing a rectangular
section of webbing from the trawl, except for a TED with an escape opening size described at
paragraph (a)(7)(ii)(A) of this section for which the escape opening may alternatively be made by
making a horizontal cut along the same plane as the TED. A TED installed in a skimmer trawl rigged
for fishing must have the escape opening oriented at the top of the net. For TEDs installed in all other
trawls, the escape opening must be centered on and immediately forward of the frame at either the
top or bottom of the net when the net is in the deployed position. The escape opening must be at the
top of the net when the slope of the deflector bars from forward to aft is upward, and must be at the
bottom when such slope is downward. The passage from the mouth of the trawl through the escape
opening must be completely clear of any obstruction or modification, other than those specified in
paragraph (d) of this section.
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50 CFR 223.207(a)(7)

(7) Size of escape opening —
(i)

Hooped hard TEDs —
(A) Escape opening for inshore hooped hard TED. The inshore hooped hard TED escape
opening must have a horizontal measurement of no less than 35 inches (89 cm) wide and
a forward measurement of no less than 27 inches (69 cm). A hinged door frame may be
used to partially cover the escape opening as provided in paragraph (d)(7) of this section.
Alternatively, a webbing flap may be used as provided in paragraph (d)(3)(i) of this section.
The resultant opening with a webbing flap must be a minimum width of 35 inches (89 cm)
and a minimum height of 20 inches (51 cm), with each measurement taken
simultaneously. This opening may only be used in inshore waters, except it may not be
used in the inshore waters of Georgia and South Carolina.
(B) Escape opening for offshore hooped hard TED. The offshore hooped hard TED escape
opening must have a horizontal measurement of no less than 40 inches (102 cm) wide
and a forward measurement of no less than 35 inches (89 cm). A hinged door frame may
be used to partially cover the escape opening as provided in paragraph (d)(7) of this
section. Alternatively, a webbing flap may be used as provided in paragraph (d)(3)(ii) of
this section. The resultant escape opening with a webbing flap must have a stretched
mesh circumference of no less than 142 inches (361 cm).

(ii) Single-grid hard TEDs. On a single-grid hard TED, the horizontal cut(s) for the escape opening
may not be narrower than the outside width of the TED frame minus 4 inches (10.2 cm) on both
sides of the grid, when measured as a straight line width. Fore-and-aft cuts to remove a
rectangular piece of webbing must be made from the ends of the horizontal cuts along a single
row of meshes along each side. The overall size of the escape opening must match one of the
following specifications:
(A) 44-inch inshore opening. The escape opening must have a minimum width of 44 inches
(112 cm) and a minimum height of 20 inches (51 cm) with each measurement taken
separately. A webbing flap, as described in paragraph (d)(3)(i) of this section, may be used
with this escape hole, so long as this minimum opening size is achieved. This opening
may only be used in inshore waters, except it may not be used in the inshore waters of
Georgia and South Carolina.
(B) The 71-inch opening. The two forward cuts of the escape opening must not be less than
26 inches (66 cm) long from the points of the cut immediately forward of the TED frame.
The resultant length of the leading edge of the escape opening cut must be no less than
71 inches (181 cm) with a resultant circumference of the opening being 142 inches (361
cm) (Figure 12 to this part). A webbing flap, as described in paragraph (d)(3)(ii) or (v) of
this section, may be used with this escape hole, so long as this minimum opening size is
achieved. Either this opening or the one described in paragraph (a)(7)(ii)(C) of this section
must be used in all offshore waters and in all inshore waters in Georgia and South
Carolina, but may also be used in other inshore waters.
(C) Double cover opening. The two forward cuts of the escape opening must not be less than
20 inches (51 cm) long from the points of the cut immediately forward of the TED frame.
The resultant length of the leading edge of the escape opening cut must be no less than
56 inches (142 cm) (Figure 16 to this part illustrates the dimensions of these cuts). A
webbing flap, as described in paragraph (d)(3)(iii) or (v) of this section, may be used with
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50 CFR 223.207(a)(7)(ii)(D)

this escape hole. Either this opening or the one described in paragraph (a)(7)(ii)(B) of this
section must be used in all offshore waters and in all inshore waters in Georgia and South
Carolina, but may also be used in other inshore waters.
(D) Boone Wedge Cut opening. (Figure 17 to this part). The escape opening is made by making
two cuts in the TED extension; one cut is fore and aft (i.e., along the length of the
extension) and the other cut is horizontal to the extension. The horizontal cut is 50
meshes long and begins at a point 4 inches (10.2 cm) inward from the outside edge of the
grid on one side and runs to the same point on the opposite side of the grid. The fore and
aft cut begins in the middle of the horizontal cut and runs forward 49.5 inches (125.7 cm)
toward the front edge of the TED extension. The added wedge of webbing is attached
along its two leading edges to the edges of the fore and aft cut. The webbing wedge is
made of 17⁄8 inch (4.8 cm) webbing and must have at least 41 meshes measuring at least
72 inches wide (182.9 cm) along its base (aft edge). The height of the wedge must
measure at least 48.5 inches (123 cm). The top of the wedge is two bars across the
leading edge then cut with a 1 point then 6 bar taper. A webbing flap, as described in
paragraph (d)(3)(iv) of this section, may be used with this escape opening, so long as the
minimum opening size is achieved.
(E) Large TED openings. (Figures 18a, 18b, and 18c to this part). Large TED escape openings
may be utilized in the following configurations:
(1) A triangular cut (Figure 18a to this part), where the base of the triangle is defined by a
straight-line measurement of the opening between the webbing attachment points on
the TED frame that is no less than 40 inches (102 cm). The two side cuts of the
triangle must be an all-bar taper from the point at which the webbing attaches to the
TED frame to the apex of the triangle cut. Each side cut of the triangle must measure
no less than 53 inches (135 cm). The sum of the straight-line base measurement and
two side cuts must be no less than 147 inches (373 cm). The side cuts of the
triangular opening may be reinforced using rib lines attached from the TED frame to
the apex of the opening. A webbing flap, as described in either paragraph (d)(3)(ii) or
(d)(3)(iii) of this section, may be used with this escape opening, so long as the
minimum opening size is achieved.
(2) All-bar or all-points side cuts and a horizontal leading edge cut (Figures 18b and 18c
to this part), where the straight-line measurement of the opening between the
webbing attachment points on the TED frame may not be less than 40 inches (102
cm), and the two side cuts of the escape opening must not be less than 26 inches
(66 cm) long from the points of the cut immediately forward of the TED frame. Only
all-bar or all-points side cuts may be used; no combination tapers may be used when
making the side cuts. The sum of the straight-line base measurement and the
stretched measurements of the side cuts and leading edge cut must be no less than
147 inches (373 cm). A webbing flap, as described in either paragraph (d)(3)(ii) or
(d)(3)(iii) of this section, may be used with this escape opening, so long as the
minimum opening size is achieved.
(8) Size of hoop or grid —
(i)

Hooped hard TED —

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50 CFR 223.207(a)(8)(i)(A)

(A) Inshore hooped hard TED. The front hoop on an inshore hooped hard TED must have an
inside horizontal measurement of at least 35 inches (89 cm) and an inside vertical
measurement of at least 30 inches (76 cm). The minimum clearance between the
deflector bars and the forward edge of the escape opening must be at least 20 inches (51
cm).
(B) Offshore hooped hard TED. The front hoop on an offshore hooped hard TED must have an
inside horizontal measurement of at least 40 inches (102 cm) and an inside vertical
measurement of at least 30 inches (76 cm). The minimum clearance between the
deflector bars and the forward edge of the escape opening must be at least 231⁄4 inches
(59 cm).
(ii) Single-grid hard TED. A single-grid hard TED must have a minimum outside horizontal and
vertical measurement of 32 inches (81 cm). The required outside measurements must be at the
mid-point of the deflector grid.
(9) Flotation. Floats must be attached to the top one-half of all hard TEDs with bottom escape openings.
The floats may be attached either outside or inside the net, but not to a flap. Floats attached inside
the net must be behind the rear surface of the TED. Floats must be attached with heavy twine or
rope. Floats must be constructed of aluminum, hard plastic, expanded polyvinyl chloride, or
expanded ethylene vinyl acetate unless otherwise specified. The requirements of this paragraph may
be satisfied by compliance with either the dimension requirements of paragraph (a)(9)(i) of this
section, or the buoyancy requirements of paragraph (a)(9)(ii) of this section, or the buoyancydimension requirements of paragraph (a)(9)(iii) of this section. If roller gear is used pursuant to
paragraph (d)(5) of this section, the roller gear must be included in the circumference measurement
of the TED or the total weight of the TED.
(i)

Float dimension requirements.
(A) For hard TEDs with a circumference of 120 inches (304.8 cm) or more, a minimum of
either one round, aluminum or hard plastic float, no smaller than 9.8 inches (25.0 cm) in
diameter, or two expanded polyvinyl chloride or expanded ethylene vinyl acetate floats,
each no smaller than 6.75 inches (17.2 cm) in diameter by 8.75 inches (22.2 cm) in length,
must be attached.
(B) For hard TEDs with a circumference of less than 120 inches (304.8 cm), a minimum of
either one round, aluminum or hard plastic float, no smaller than 9.8 inches (25.0 cm) in
diameter, or one expanded polyvinyl chloride or expanded ethylene vinyl acetate float, no
smaller than 6.75 inches (17.2 cm) in diameter by 8.75 inches (22.2 cm) in length, must be
attached.

(ii) Float buoyancy requirements. Floats of any size and in any combination must be attached such
that the combined buoyancy of the floats, as marked on the floats, equals or exceeds the
weight of the hard TED, as marked on the TED. The buoyancy of the floats and the weight of the
TED must be clearly marked on the floats and the TED as follows:
(A) Float buoyancy markings. Markings on floats must be made in clearly legible raised or
recessed lettering by the original manufacturer. The marking must identify the buoyancy
of the float in water, expressed in grams or kilograms, and must include the metric unit of
measure. The marking may additionally include the buoyancy in English units. The
marking must identify the nominal buoyancy for the manufactured float.
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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
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50 CFR 223.207(a)(9)(ii)(B)

(B) TED weight markings. The marking must be made by the original TED manufacturer and
must be permanent and clearly legible. The marking must identify the in-air, dry weight of
the TED, expressed in grams or kilograms, and must include the metric unit of measure.
The marking may additionally include the weight in English units. The marked weight must
represent the actual weight of the individual TED as manufactured. Previously
manufactured TEDs may be marked upon return to the original manufacturer. Where a TED
is comprised of multiple detachable components, the weight of each component must be
separately marked.
(iii) Buoyancy-dimension requirements. Floats of any size and in any combination, provided that
they are marked pursuant to paragraph (a)(9)(ii)(A) of this section, must be attached such that
the combined buoyancy of the floats equals or exceeds the following values:
(A) For floats constructed of aluminum or hard plastic, regardless of the size of the TED grid,
the combined buoyancy must equal or exceed 14 lb (6.4 kg);
(B) For floats constructed of expanded polyvinyl chloride or expanded ethylene vinyl acetate,
where the circumference of the TED is 120 inches (304.8 cm) or more, the combined
buoyancy must equal or exceed 20 lb (9.1 kg); or
(C) For floats constructed of expanded polyvinyl chloride or expanded ethylene vinyl acetate,
where the circumference of the TED is less than 120 inches (304.8 cm), the combined
buoyancy must equal or exceed 10 lb (4.5 kg).
(b) Special Hard TEDs. Special hard TEDs are hard TEDs which do not meet all of the design and construction
criteria of the generic standards specified in paragraph (a) of this section. The following special hard
TEDs are approved TEDs:
(1) Flounder TED. (Figure 10 to this part). The Flounder TED is approved for use only in the Atlantic
summer flounder bottom trawl fishery. The Flounder TED is not an approved TED for use by shrimp
trawlers. The Flounder TED must be constructed of at least 11⁄4 inch (3.2 cm) outside diameter
aluminum or steel pipe with a wall thickness of at least 1⁄8 inch (0.3 cm). It must have a rectangular
frame with outside dimensions which can be no less than 51 inches (129.5 cm) in length and 32
inches (81.3 cm) in width. It must have at least five vertical deflector bars, with bar spacings of no
more than 4 inches (10.2 cm). The vertical bars must be connected to the top of the frame and to a
single horizontal bar near the bottom. The horizontal bar must be connected at both ends to the
sides of the frame and parallel to the bottom bar of the frame. There must be a space no larger than
10 inches (25.4 cm) between the horizontal bar and the bottom bar of the frame. One or more
additional vertical bars running from the bottom bar to the horizontal bar must divide the opening at
the bottom into two or more rectangles, each with a maximum height of 10 inches (25.4 cm) and a
maximum width of 141⁄2 inches (36.8 cm). This TED must comply with paragraph (a)(2) of this
section. The angle of the deflector bars must be between 30 and 55 from the normal, horizontal flow
through the interior of the trawl. The entire width of the escape opening from the trawl must be
centered on and immediately forward of the frame at the top of the net when the net is in its
deployed position. The escape opening must be at the top of the net and the slope of the deflector
bars from forward to aft is upward. The escape opening must be cut horizontally along the same
plane as the TED, and may not be cut in a fore-and-aft direction. The cut in the trawl webbing for the
escape opening cannot be narrower than the outside width of the grid minus 4 inches (10.2 cm) on
both sides of the grid, when measured as a straight line width. The resulting escape opening in the
net webbing must measure at least 35 inches (88.9 cm) in horizontal taut length and,
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50 CFR 223.207(b)(2)

simultaneously, 12 inches (30.5 cm) in vertical taut height. The vertical measurement must be taken
at the midpoint of the horizontal measurement. This TED may not be configured with a bottom
escape opening. Installation of an accelerator funnel is not permitted with this TED.
(2) Weedless TED. The weedless TED must meet all the requirements of paragraph (a) of this section for
single-grid hard TEDs, with the exception of paragraphs (a)(1) and (a)(5) of this section. The
weedless TED must be constructed of at least 1-1/4 inch (3.2 cm) outside diameter aluminum with a
wall thickness of at least 1⁄8 inch (0.3 cm). The deflector bars must run from top to bottom of the
TED, as the TED is positioned in the net. The ends of the deflectors bars on the side of the frame
opposite to the escape opening must be permanently attached to the frame. The ends of the
deflector bars nearest the escape opening are not attached to the frame and must lie entirely
forward of the leading edge of the outer frame. The ends of the unattached deflector bars must be
no more than 4 inches (10.2 cm) from the frame and may not extend past the frame. A horizontal
brace bar to reinforce the deflector bars, constructed of the same size or larger pipe as the deflector
bars, must be permanently attached to the frame and the rear face of each of the deflector bars at a
position anywhere between the vertical mid-point of the frame and the unattached ends of the
deflector bars. The horizontal brace bar may be offset behind the deflector bars, using spacer bars,
not to exceed 5 inches (12.7 cm) in length and constructed of the same size or larger pipe as the
deflector bars. See Figure 15.
(3) Boone Big Boy TED. The Boone Big Boy TED is a single-grid hard TED with a minimum outside
horizontal and vertical measurement of 36.5 inches (92.7 cm) and 48 inches (121.9 cm),
respectively. The frame must be constructed of steel rod with a minimum outside diameter of 3⁄8
inch (0.95 cm). The deflector bars must be constructed of steel rod with a minimum outside
diameter of 1⁄4 inch (0.64 cm). The space between the deflector bars must not exceed 4 inches (10.2
cm). A horizontal brace bar constructed of at least 1⁄4-inch (0.64-cm) steel rod must be permanently
attached to the frame and the rear face of each of the deflector bars within 4 inches (10.2 cm) of the
midpoint of the TED frame. The horizontal brace bar may be offset behind the deflector bars, using
spacer bars, not to exceed 5 inches (12.7 cm) in length and must be constructed of the same size or
larger material as the deflector bars. The Boone Big Boy TED must be used with the Boone Wedge
Cut escape opening specified in (a)(7)(ii)(D) of this section. The angle of the deflector bars must be
between 30° and 55° from the normal, horizontal flow through the interior of the trawl. The Boone Big
Boy TED is exempt from the requirements of paragraph (a)(3)(ii) of this section, and may be installed
at 55° when fishing in the Gulf SFSTCA or the Atlantic SFSTCA.
(4) Modified flounder TED. (Figure 11 to this part). The modified flounder TED is approved for use only in
the Atlantic summer flounder bottom trawl fishery. The modified flounder TED is not an approved
TED for use by shrimp trawlers. The modified flounder TED incorporates two separate grid frames
that are attached together. The frames of the grids must be constructed of at least 11⁄4 inch (3.2 cm)
outside diameter aluminum or steel pipe with a wall thickness of at least 1⁄8 inch (0.32 cm). Each of
the two grids of the modified flounder TED must have outside dimensions of at least 36 inches (91.4
cm) in height and at least 48 inches (121.9 cm) in width. The upper grid is equipped with vertical
deflector bars, which must be constructed of aluminum or steel flat bar with a minimum depth of
11⁄4 inches (3.2 cm) and a minimum thickness of 3⁄8 inch (0.95 cm). Vertical deflector bars must be
connected to the top and bottom of the upper grid. The space between the deflector bars of the
upper grid must not exceed 4 inches (10.2 cm). The lower grid is fabricated with both horizontal and
vertical deflector bars, creating four narrow horizontal openings at the top, and three large
rectangular openings along the bottom of the grid. The lower grid must have at least three horizontal
deflector bars, constructed of aluminum or steel flat bar with a minimum depth of 11⁄2 inches (3.8
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50 CFR 223.207(c)

cm) and a minimum thickness of 3⁄8 inch (0.95 cm), which are connected to each side of the grid and
angled at 30° from the horizontal plane. Below this, a fourth horizontal deflector bar must be
constructed of aluminum or steel pipe with a wall thickness of at least 1⁄8 inch (0.32 cm) and with a
11⁄4 inch (3.2 cm) outside diameter. These horizontal deflector bars must yield maximum spacings
of 41⁄2 inches (11.4 cm), 51⁄2 inches (14.0 cm), 51⁄2 inches (14.0 cm), and 41⁄2 inches (11.4 cm), as
constructed from top to bottom and measured between the leading edges of adjacent deflector
bars. There must be a maximum 10-inch (25.4 cm) space between the bottom-most horizontal
deflector pipe bar and the grid frame bottom. Two additional vertical pipe sections running from the
bottom of the grid frame to the bottom-most horizontal deflector pipe bar must divide the opening at
the bottom into three rectangles, each with a maximum height of 10 inches (25.4 cm) and a
maximum width of 14 inches (35.6 cm). This TED must comply with paragraph (a)(2) of this section.
The upper and lower grids of this TED must be laced together with heavy twine no less than 1⁄4 inch
(0.64 cm) in diameter in order to maintain a consistent angle in both sections. There may be a gap
between the two sections not to exceed 1 inch (2.54 cm). The angle of the entire TED frame must be
between 30° and 45° from the normal, horizontal flow through the interior of the trawl. The entire
width of the escape opening from the trawl must be centered on and immediately forward of the
frame at the top of the net when the net is in its deployed position. The slope of the grids and the
vertical deflector bars from forward to aft is upward. The modified flounder TED must use an escape
opening consistent with paragraph (a)(7)(ii)(B), (C), (D), or (E) of this section. A webbing flap, as
described in paragraphs (d)(3)(ii), (iii), or (iv) of this section, may be used with this escape opening,
so long as the minimum opening size is achieved. This TED may not be configured with a bottom
escape opening. Installation of an accelerator funnel is not permitted with this TED.
(c) Soft TEDs. Soft TEDs are TEDs with deflector panels made from polypropylene or polyethylene netting.
The following soft TEDs are approved TEDs:
(1) Parker TED. The Parker TED is a soft TED, consisting of a single triangular panel, composed of
webbing of two different mesh sizes, that forms a complete barrier inside a trawl and that angles
toward an escape opening in the top of the trawl.
(i)

Excluder Panel. (Figure 5 to this part) The excluder panel of the Parker TED must be constructed
of a single triangular piece of 8-inch (20.3 cm) stretched mesh webbing and two trapezoidal
pieces of 4-inch (10.2-cm) stretched mesh webbing. The webbing must consist of number 48
(3-mm thick) or larger polypropylene or polyethylene webbing that is heat-set knotted or
braided. The leading edge of the 8-inch (20.3-cm) mesh panel must be 36 meshes wide. The
8-inch (20.3-cm) mesh panel must be tapered on each side with all-bar cuts to converge on an
apex, such that the length of each side is 36 bars. The leading edges of the 4-inch (10.2-cm)
mesh panels must be 8 meshes wide. The edges of the 4-inch (10.2-cm) mesh panels must be
cut with all-bar cuts running parallel to each other, such that the length of the inner edge is 72
bars and the length of the outer edge is 89 bars and the resulting fore-and-aft edge is 8 meshes
deep. The two 4-inch (10.2-cm) mesh panels must be sewn to the 8-inch (20.3-cm) mesh panel
to create a single triangular excluder panel. The 72-bar edge of each 4-inch (10.2-cm) mesh
panel must be securely joined with twine to one of the 36-bar edges of the 8-inch (20.3-cm)
mesh panel, tied with knots at each knot of the 4-inch (10.2-cm) webbing and at least two
wraps of twine around each bar of 4-inch (10.2-cm) mesh and the adjoining bar of the 8-inch
(20.3-cm) mesh. The adjoining fore-and-aft edges of the two 4-inch (10.2-cm) mesh panels
must be sewn together evenly.

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
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50 CFR 223.207(c)(1)(ii)

(ii) Limitations on which trawls may have a Parker TED installed. The Parker TED must not be
installed or used in a two-seam trawl with a tongue, nor in a triple-wing trawl (a trawl with a
tongue along the headrope and a second tongue along the footrope). The Parker TED may be
installed and used in any other trawl if the taper of the body panels of the trawl does not exceed
4b1p and if it can be properly installed in compliance with paragraph (c)(1)(iii) of this section.
(iii) Panel installation —
(A) Leading edge attachment. The leading edge of the excluder panel must be attached to the
inside of the bottom of the trawl across a straight row of meshes. For a two-seam trawl or
a four-seam, tapered-wing trawl, the row of meshes for attachment to the trawl must run
the entire width of the bottom body panel, from seam to seam. For a four-seam, straightwing trawl, the row of meshes for attachment to the trawl must run the entire width of the
bottom body panel and half the height of each wing panel of the trawl. Every mesh of the
leading edge of the excluder panel must be evenly sewn to this row of meshes; meshes
may not be laced to the trawl. The row of meshes for attachment to the trawl must contain
the following number of meshes, depending on the stretched mesh size used in the trawl:
(1) For a mesh size of 21⁄4 inches (5.7 cm), 152-168 meshes;
(2) For a mesh size of 21⁄8 inches (5.4 cm), 161-178 meshes;
(3) For a mesh size of 2 inches (5.1 cm), 171-189 meshes;
(4) For a mesh size of 17⁄8 inches (4.8 cm), 182-202 meshes;
(5) For a mesh size of 13⁄4 inches (4.4 cm), 196-216 meshes;
(6) For a mesh size of 15⁄8 inches (4.1 cm), 211-233 meshes;
(7) For a mesh size of 11⁄2 inches (3.8 cm), 228-252 meshes;
(8) For a mesh size of 13⁄8 inches (3.5 cm), 249-275 meshes; and
(9) For a mesh size of 11⁄4 inches (3.2 cm), 274-302 meshes.
(B) Apex attachment. The apex of the triangular excluder panel must be attached to the inside
of the top body panel of the trawl at the centerline of the trawl. The distance, measured aft
along the centerline of the top body panel from the same row of meshes for attachment of
the excluder panel to the bottom body panel of the trawl, to the apex attachment point
must contain the following number of meshes, depending on the stretched mesh size
used in the trawl:
(1) For a mesh size of 21⁄4 inches (5.7 cm), 78-83 meshes;
(2) For a mesh size of 21⁄8 inches (5.4 cm), 83-88 meshes;
(3) For a mesh size of 2 inches (5.1 cm), 87-93 meshes;
(4) For a mesh size of 17⁄8 inches (4.8 cm), 93-99 meshes;
(5) For a mesh size of 13⁄4 inches (4.4 cm), 100-106 meshes;
(6) For a mesh size of 15⁄8 inches (4.1 cm), 107-114 meshes;
(7) For a mesh size of 11⁄2 inches (3.8 cm), 114-124 meshes;
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50 CFR 223.207(c)(1)(iii)(B)(8)

(8) For a mesh size of 13⁄8 inches (3.5 cm), 127-135 meshes; and
(9) For a mesh size of 11⁄4 inches (3.2 cm), 137-146 meshes.
(C) Side attachment. The sides of the excluder panel must be attached evenly to the inside of
the trawl from the outside attachment points of the excluder panel's leading edge to the
apex of the excluder panel. Each side must be sewn with the same sewing sequence, and,
if the sides of the excluder panel cross rows of bars in the trawl, the crossings must be
distributed evenly over the length of the side attachment.
(iv) Escape opening. The escape opening for the Parker soft TED must match one of the following
specifications:
(A) Inshore opening. This opening is the minimum size opening that may be used in inshore
waters, except it may not be used in the inshore waters of Georgia and South Carolina, in
which a larger minimum opening is required. A slit at least 56 inches (1.4 m) in taut length
must be cut along the centerline of the top body panel of the trawl net immediately
forward of the apex of the panel webbing. The slit must not be covered or closed in any
manner. The edges and end points of the slit must not be reinforced in any way; for
example, by attaching additional rope or webbing or by changing the orientation of the
webbing.
(B) Offshore opening. A horizontal cut extending from the attachment of one side of the
deflector panel to the trawl to the attachment of the other side of the deflector panel to the
trawl must be made in a single row of meshes across the top of the trawl and measure at
least 96 inches (243.8 cm) in taut width. All trawl webbing above the deflector panel
between the 96-inch (243.8-cm) cut and edges of the deflector panel must be removed. A
rectangular flap of nylon webbing not larger than 2-inch (5.1-cm) stretched mesh may be
sewn to the forward edge of the escape opening. The width of the flap must not be larger
than the width of the forward edge of the escape opening. The flap must not extend more
than 12 inches (30.5 cm) beyond the rear point of the escape opening. The sides of the
flap may be attached to the top of the trawl but must not be attached farther aft than the
row of meshes through the rear point of the escape opening. One row of steel chain not
larger than 1⁄4 inch (0.64 cm) may be sewn evenly to the back edge of the flap. The
stretched length of the chain must not exceed 96 inches (244 cm). A Parker TED using the
escape opening described in this paragraph meets the requirements of §
223.206(d)(2)(iv)(B). This opening or one that is larger must be used in all offshore waters
and in the inshore waters of Georgia and South Carolina. It also may be used in other
inshore waters..
(2) [Reserved]
(d) Allowable modifications to hard TEDs and special hard TEDs. Unless otherwise prohibited in paragraph (b)
of this section, only the following modifications may be made to an approved hard TED or an approved
special hard TED:
(1) Floats. In addition to floats required pursuant to paragraph (a)(9) of this section, floats may be
attached to the top one-half of the TED, either outside or inside the net, but not to a flap. Floats
attached inside the net must be behind the rear surface at the top of the TED.

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
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50 CFR 223.207(d)(2)

(2) Accelerator funnel. An accelerator funnel may be installed in the trawl, if it is made of net webbing
material with a stretched mesh size of not greater than 15⁄8 inches (4 cm), if it is inserted in the net
immediately forward of the TED, and if its rear edge does not extend past the bars of the TED. The
trailing edge of the accelerator funnel may be attached to the TED on the side opposite the escape
opening if not more than one-third of the circumference of the funnel is attached, and if the inside
horizontal opening as described above in maintained. In a bottom opening TED only the top one-third
of the circumference of the funnel may be attached to the TED. In a top opening TED only the bottom
one-third of the circumference of the funnel may be attached to the TED.
(i)

In inshore waters, other than the inshore waters of Georgia and South Carolina in which a larger
opening is required, the inside horizontal opening of the accelerator funnel must be at least 44
inches (112 cm).

(ii) In offshore waters and the inshore waters of Georgia and South Carolina, the inside horizontal
opening of the accelerator funnel must be at least 71 inches (180 cm).
(3) Webbing flap. A webbing flap may be used to cover the escape opening under the following
conditions: No device holds it closed or otherwise restricts the opening; it is constructed of webbing
with a stretched mesh size no larger than 2 inches (5.1 cm); it lies on the outside of the trawl; it is
attached along its entire forward edge forward of the escape opening; it is not attached on the sides
beyond the row of meshes that lies 6 inches (15.2 cm) behind the posterior edge of the grid; the
sides of the flap are sewn on the same row of meshes fore and aft; and the flap does not overlap the
escape hole cut by more than 5 inches (12.7 cm) on either side.
(i)

44-inch inshore TED flap. This flap may not extend more than 24 inches (61 cm) beyond the
posterior edge of the grid.

(ii) 71-inch TED flap. The flap must be a 133-inch (338-cm) by 52-inch (132-cm) piece of webbing.
The 133-inch (338-cm) edge of the flap is attached to the forward edge of the opening (71-inch
(180-cm) edge). The flap may extend no more than 24 inches (61 cm) behind the posterior edge
of the grid (Figure 12 to this part illustrates this flap).
(iii) Double cover TED flap. This flap must be composed of two equal size rectangular panels of
webbing. Each panel must be no less than 58 inches (147.3 cm) wide and may overlap each
other no more than 15 inches (38.1 cm). The panels may only be sewn together along the
leading edge of the cut. The trailing edge of each panel must not extend more than 24 inches
(61 cm) past the posterior edge of the grid (Figure 16 to this part). Each panel may be sewn
down the entire length of the outside edge of each panel. This paragraph (d)(3) of this section
notwithstanding, this flap may be installed on either the outside or inside of the TED extension.
For interior installation, the flap may be sewn to the interior of the TED extension along the
leading edge and sides to a point intersecting the TED frame; however, the flap must be sewn to
the exterior of the TED extension from the point at which it intersects the TED frame to the
trailing edge of the flap. Chafing webbing described in paragraph (d)(4) of this section may not
be used with this type of flap.
(iv) Boone Wedge Cut opening flap. (Figure 17 to this part). This escape opening flap is attached to
the trailing edge of the horizontal cut and the wedge. The flap is made from a piece of 17⁄8 inch
(4.8 cm) webbing that is trapezoid in shape. The leading edge must be at least 94 meshes wide,
stretching to at least 164.5 inches (417.8 cm). The trailing edge is at least 87 meshes wide and

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50 CFR 223.207(d)(3)(iv)(A)

at least 152 inches (386.1 cm). The two sides are at least 8 meshes long and at least 15 inches
(38.1 cm). The escape opening flap is attached only to the leading edge of the escape opening
cut and is not attached along its sides.
(A) Edge lines. Optional edge lines can be used in conjunction with this flap. The line must be
made of polyethylene with a maximum diameter of 3⁄8 inches (.95 cm). A single length of
line must be used for each flap panel. The line must be sewn evenly to the unattached,
inside edges and trailing edges, of each flap panel. When edge lines are installed, the
outside edge of each flap panel must be attached along the entire length of the flap panel.
(B) [Reserved]
(v) Small turtle TED flap. If the angle of the deflector bars of a TED used by a skimmer trawl
exceeds 45°, or if a double cover opening straight bar TED (at any allowable angle) is used by a
skimmer trawl, the flap must consist of twine size not greater than number 15 (1.32-mm thick)
on webbing flaps described in paragraphs (d)(3)(i), (d)(3)(ii), (d)(3)(iii), or (d)(3)(iv) of this
section.
(4) Chafing webbing. A single piece of nylon webbing, with a twine size no smaller than size 36 (2.46 mm
in diameter), may be attached outside of the escape opening webbing flap to prevent chafing on
bottom opening TEDs. This webbing may be attached along its leading edge only. This webbing may
not extend beyond the trailing edge or sides of the existing escape opening webbing flap, and it must
not interfere or otherwise restrict the turtle escape opening.
(5) Roller gear. Roller gear may be attached to the bottom of a TED to prevent chafing on the bottom of
the TED and the trawl net. When a webbing flap is used in conjunction with roller gear, the webbing
flap must be of a length such that no part of the webbing flap can touch or come in contact with any
part of the roller gear assembly or the means of attachment of the roller gear assembly to the TED,
when the trawl net is in its normal, horizontal position. Roller gear must be constructed according to
one of the following design criteria:
(i)

A single roller consisting of hard plastic shall be mounted on an axle rod, so that the roller can
roll freely about the axle. The maximum diameter of the roller shall be 6 inches (15.24 cm), and
the maximum width of the axle rod shall be 12 inches (30.4 cm). The axle rod must be attached
to the TED by two support rods. The maximum clearance between the roller and the TED shall
not exceed 1 inch (2.5 cm) at the center of the roller. The support rods and axle rod must be
made from solid steel or solid aluminum rod no larger than 1⁄2 inch (1.28 cm) in diameter. The
attachment of the support rods to the TED shall be such that there are no protrusions (lips,
sharp edges, burrs, etc.) on the front face of the grid. The axle rod and support rods must lie
entirely behind the plane of the face of the TED grid.

(ii) A single roller consisting of hard plastic tubing shall be tightly tied to the back face of the TED
grid with rope or heavy twine passed through the center of the roller tubing. The roller shall lie
flush against the TED. The maximum outside diameter of the roller shall be 31⁄2 inches (8.0 cm),
the minimum outside diameter of the roller shall be 2 inches (5.1 cm), and the maximum length
of the roller shall be 12 inches (30.4 cm). The roller must lie entirely behind the plane of the
face of the grid.
(6) Water deflector fin for hooped hard TEDs. On a hooped hard TED, a water deflector fin may be welded
to the forward edge of the escape opening. The fin must be constructed of a flat aluminum bar, up to
3⁄ inch (0.95 cm) thick and up to 4 inches (10.2 cm) deep. The fin may be as wide as the width of
8
50 CFR 223.207(d)(6) (enhanced display)

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50 CFR 223.207(d)(7)

the escape opening, minus 1 inch (2.5 cm). The fin must project aft into the TED with an angle
between 5° and 45° from the normal, horizontal plane of the trawl. On an inshore hooped hard TED,
the clearance between the deflector bars and the posterior edge of the deflector fin must be at least
20 inches (51 cm). On an offshore hooped hard TED, the clearance between the deflector bars and
the posterior edge of the deflector fin must be at least 23-1/4 inches (59 cm).
(7) Hinged door frame for hooped hard TEDs. A hinged door frame may be attached to the forward edge
of the escape opening on a hooped hard TED. The door frame must be constructed of materials
specified at paragraphs (a)(1)(i) or (a)(1)(ii) of this section for inshore and offshore hooped hard
TEDs, respectively. The door frame may be covered with a single panel of mesh webbing that is taut
and securely attached with twine to the perimeter of the door frame, with a mesh size not greater
than that used for the TED extension webbing. The door frame must be at least as wide as the TED
escape opening. The door frame may be a maximum of 24 inches (61 cm) long. The door frame
must be connected to the forward edge of the escape opening by a hinge device that allows the door
to open outwards freely. The posterior edge of the door frame, in the closed position, must lie at
least 12 inches (30 cm) forward of the posterior edge of the escape opening. A water deflector fin
may be welded to the posterior edge of the hinged door frame. The fin must be constructed of a flat
aluminum bar, up to 3⁄8 inch (0.95 cm) thick and up to four inches (10.2 cm) deep. The fin may be as
wide as the width of the escape opening, minus one inch (2.5 cm). The fin must project aft into the
TED with an angle between 5° and 45° from the normal, horizontal plane of the trawl, when the door
is in the closed position. The clearance between the posterior edge of the escape opening and the
posterior edge of the door frame or the posterior edge of the water deflector fin, if installed, must be
no less than 12 inches (30 cm), when the door is in the closed position. Two stopper ropes or a hinge
limiter may be used to limit the maximum opening height of the hinged door frame, as long as they
do not obstruct the escape opening in any way or restrict the free movement of the door to its fully
open position. When the door is in its fully open position, the minimum clearance between any part
of the deflector bars and any part of the door, including a water deflector fin if installed, must be at
least 20 inches (51 cm) for an inshore hooped hard TED and at least 231⁄4 inches (59 cm) for an
offshore hooped hard TED. The hinged door frame may not be used in combination with a webbing
flap specified at paragraph (d)(3) of this section or with a water deflection fin specified at paragraph
(d)(6) of this section.
(8) Chauvin shrimp deflector. (Figures 19a and 19b to this part). The Chauvin shrimp deflector may be
used on any approved TED design, but its installation must not reduce the minimum stretched
measurements of the TED opening. The Chauvin shrimp deflector may not be installed with a bottom
escape opening. The Chauvin shrimp deflector is constructed from a single piece of 3-inch (7.6-cm)
inside diameter PVC pipe which measures 30 inches (76.2 cm) in length; the ends of the PVC pipe
are left uncapped. A webbing or mesh bag is made and is used to encase the PVC pipe (Figure 19a
to this part). The mesh bag is created using a single piece of 15⁄8 inch (4.1 cm) stretched-mesh
webbing made of nylon or polyethylene with dimensions 57 meshes wide by 10 meshes deep. The
leading edge of the 57-mesh piece of webbing is attached around the PVC pipe and back to the row
of meshes located 7 meshes down the 10-mesh length. The ends of the webbing are sewn together
on each end forming a webbing bag to assure the PVC pipe remains encased in the webbing. This
leaves a 3-mesh tail hanging from the encased PVC pipe. The 3-mesh tail of the encased PVC pipe is
then sewn to a single row of meshes on the inside of the trawl along the 57-mesh edge, 3 meshes
ahead of the forward cut of the TED escape opening. This would allow a 3-mesh overlap to the left
and right of the forward cut (Figure 19b to this part).

50 CFR 223.207(d)(8) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
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50 CFR 223.207(d)(9)

(9) Brace bar. (Figure 14a of this part). A horizontal brace bar may be added to a TED if the brace bar is
constructed of aluminum or steel rod or tubing specified in 50 CFR 223.207(a)(1)(i)(A) through (C),
or flat bar 3⁄8-inch (0.95 cm) or more in thickness, and is permanently attached to the rear of the
outer frame; for TEDs constructed of flat bar less than 3⁄8-inch (0.95 cm) in thickness, the regulations
specified in 50 CFR 223.207(a)(1)(i)(D) apply. The horizontal brace bar may be permanently secured
to the rear face of each of the deflector bars. The horizontal brace bar may be offset behind the
deflector bars, using spacer bars attached to the rear face of each of the deflector bars, not to
exceed 5 inches (12.7 cm) in length, and must be constructed of the same size or larger material as
the deflector bars.
(e) Revision of generic design criteria, and approval of TEDs, of allowable modifications of hard TEDs, and of
special hard TEDs.
(1) The Assistant Administrator may revise the generic design criteria for hard TEDs set forth in
paragraph (a) of this section, may approve special hard TEDs in addition to those listed in paragraph
(b) of this section, may approve allowable modifications to hard TEDs in addition to those authorized
in paragraph (d) of this section, or may approve other TEDs, by regulatory amendment, if, according
to a NMFS-approved scientific protocol, the TED demonstrates a sea turtle exclusion rate of 97
percent or greater (or an equivalent exclusion rate). Two such protocols have been published by
NMFS (52 FR 24262, June 29, 1987; and 55 FR 41092, October 9, 1990) and will be used only for
testing relating to hard TED designs. Testing under any protocol must be conducted under the
supervision of the Assistant Administrator, and shall be subject to all such conditions and
restrictions as the Assistant Administrator deems appropriate. Any person wishing to participate in
such testing should contact the Director, Southeast Fisheries Science Center, NMFS, 75 Virginia
Beach Dr., Miami, FL 33149-1003.
(2) Upon application, the Assistant Administrator may issue permits, subject to such conditions and
restrictions as the Assistant Administrator deems appropriate, authorizing public or private
experimentation aimed at improving shrimp retention efficiency of existing approved TEDs and at
developing additional TEDs, or conducting fishery research, that would otherwise be subject to §
223.206(d)(2). Applications should be made to the Southeast Regional Administrator (see § 222.102
definition of “Southeast Regional Administrator”).
[64 FR 14073, Mar. 23, 1999, as amended at 64 FR 55438, Oct. 13, 1999; 66 FR 1603, Jan. 9, 2001; 66 FR 24288, May 14, 2001; 68
FR 8467, Feb. 21, 2003; 68 FR 51514, Aug. 27, 2003; 68 FR 54934, Sept. 19, 2003; 69 FR 31037, June 2, 2004; 77 FR 29907, May
21, 2012; 77 FR 48106, Aug. 13, 2012; 84 FR 70063, Dec. 20, 2019; 85 FR 59199, Sept. 21, 2020; 86 FR 16676, Mar. 31, 2021]

Effective Date Note: At 64 FR 14073, Mar. 23, 1999, § 223.207 was added. Paragraphs (a)(9)(ii) (A) and (B)
contain information collection and recordkeeping requirements and will not become effective until approval has
been given by the Office of Management and Budget.

§ 223.208 Corals.
(a) Prohibitions.
(1) The prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) relating to endangered species
apply to elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals listed as threatened in §
223.102, except as provided in § 223.208(c).
(2) It is unlawful for any person subject to the jurisdiction of the United States to do any of the following:
50 CFR 223.208(a)(2) (enhanced display)

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(i)

50 CFR 223.208(a)(2)(i)

Fail to comply immediately, in the manner specified at § 600.730 (b) through (d) of this title,
with instructions and signals specified therein issued by an authorized officer, including
instructions and signals to haul back a net for inspection;

(ii) Refuse to allow an authorized officer to board a vessel, or to enter an area where fish or wildlife
may be found, for the purpose of conducting a boarding, search, inspection, seizure,
investigation, or arrest in connection with enforcement of this section;
(iii) Destroy, stave, damage, or dispose of in any manner, fish or wildlife, gear, cargo, or any other
matter after a communication or signal from an authorized officer, or upon the approach of
such an officer or of an enforcement vessel or aircraft, before the officer has an opportunity to
inspect same, or in contravention of directions from the officer;
(iv) Assault, resist, oppose, impede, intimidate, threaten, obstruct, delay, prevent, or interfere with an
authorized officer in the conduct of any boarding, search, inspection, seizure, investigation, or
arrest in connection with enforcement of this section;
(v) Interfere with, delay, or prevent by any means, the apprehension of another person, knowing that
such person committed an act prohibited by this section;
(vi) Resist a lawful arrest for an act prohibited by this section;
(vii) Make a false statement, oral or written, to an authorized officer or to the agency concerning
applicability of the exceptions enumerated in paragraph (c) of this section relating to elkhorn
and staghorn corals;
(viii) Make a false statement, oral or written, to an authorized officer or to the agency concerning the
fishing for, catching, taking, harvesting, landing, purchasing, selling, or transferring fish or
wildlife, or concerning any other matter subject to investigation under this section by such
officer, or required to be submitted under this part 223; or
(ix) Attempt to do, solicit another to do, or cause to be done, any of the foregoing.
(b) Affirmative defense. In connection with any action alleging a violation of this section, any person claiming
the benefit of any exception, exemption, or permit under this section has the burden of proving that the
exception, exemption, or permit is applicable, was granted, and was valid and in force at the time of the
alleged violation, and that the person fully complied with the exception, exemption, or permit.
(c) Exceptions. Exceptions to the prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) applied in
paragraph (a) of this section relating to elkhorn and staghorn corals are described in the following
paragraphs (1) through (6):
(1) Permitted scientific research and enhancement. Any export or take of elkhorn or staghorn corals
resulting from conducting scientific research or enhancement directed at elkhorn and staghorn
corals is excepted from the prohibitions in ESA sections 9(a)(1)(A), (B) and (C) provided a valid
research or enhancement permit has been obtained from one of the following Federal or state
agencies: NOAA National Ocean Service National Marine Sanctuary Program, National Park Service,
U.S. Fish and Wildlife Service, Florida Fish and Wildlife Conservation Commission, Puerto Rico
Department of Natural and Environmental Resources, or the U.S. Virgin Islands Department of
Planning and Natural Resources. The exportation or take must be in compliance with the applicable
terms and conditions of the applicable research or enhancement permit, and the permit must be in
the possession of the permittee while conducting the activity. Export of elkhorn or staghorn corals
from the United States to conduct excepted research or enhancement activities requires a CITES
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50 CFR 223.208(c)(2)

export permit from the U.S. Fish and Wildlife Service in addition to the research permit for collection.
Import of elkhorn or staghorn corals into the United States to conduct excepted research or
enhancement activities must be in compliance with the provisions of section 9(c) of the ESA.
(2) Restoration activities. Any agent or employee of governmental agencies listed in Table 1 may take
listed elkhorn or staghorn corals without a permit, when acting in the course of conducting a
restoration activity directed at elkhorn or staghorn coral which is authorized by an existing authority
(see Table 1 to this section). Take of elkhorn or staghorn corals during such restoration activity is
excepted from the prohibitions in ESA sections 9(a)(1)(B) and (C). An excepted restoration activity is
defined as the methods and processes used to provide aid to injured individual elkhorn or staghorn
coral.
(3) Section 10 scientific and enhancement permits. The Assistant Administrator may issue permits
authorizing activities that would otherwise be prohibited under § 223.208(a) for scientific purposes
or to enhance the propagation or survival of elkhorn or staghorn corals, in accordance with and
subject to the conditions of part 222, subpart C-General Permit Procedures.
(4) Section 10 incidental take permits. The Assistant Administrator may issue permits authorizing
activities that would otherwise be prohibited under § 223.208(a) in accordance with section
10(a)(1)(B) of the ESA (16 U.S.C. 1539(a)(1)(B)), and in accordance with, and subject to the
conditions of part 222 of this chapter. Such permits may be issued for the incidental taking of
elkhorn and staghorn corals.
(5) Section 7 Interagency consultation. Any incidental taking that is in compliance with the terms and
conditions specified in a written statement provided under section 7(b)(4)(C) of the ESA (16 U.S.C.
1536(b)(4)(C)) shall not be considered a prohibited taking of elkhorn and staghorn corals pursuant to
paragraph (o)(2) of section 7 of the ESA (16 U.S.C. 1536(o)(2)).
(6) Importation under the Convention on International Trade of Endangered Species. Any importation of
elkhorn or staghorn corals in compliance with the provisions of section 9(c) of the ESA (16 U.S.C.
1538(c)) shall not be considered a violation of any provision of the ESA or any regulation issued
pursuant to the ESA.

TABLE 1 TO § 223.208. AGENCIES AND AUTHORIZING STATUTES WHOSE CORAL
RESTORATION ACTIVITIES ARE EXCEPTED FROM CERTAIN PROHIBITIONS IN
PARAGRAPH (a) OF THIS SECTION.
FEDERAL:
Agency/Person
NOAA, National Ocean Service (NOS)

Statute and Specific
Provision(s)
National Marine
Sanctuaries Act
16 U.S.C. 1431 et seq.

NOAA, NOS

50 CFR 223.208(c)(6) (enhanced display)

Coral Reef Conservation
Act

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50 CFR 223.208(c)(6)

FEDERAL:
Agency/Person

Statute and Specific
Provision(s)
16 U.S.C. 6406

Commandant, U.S. Coast Guard (USCG), Authorized representatives
of States or Indian Tribes.

“Oil Pollution Act”
33 U.S.C. 2702

Designated Federal, State or Indian tribal natural resources trustees,
including NOAA, Department of Interior (DOI), Florida Department of
Environmental Protection (FDEP), Puerto Rico Department of Natural
and Environmental Resources (DNER), and U.S. Virgin Islands
Department of Planning and Natural Resources (DPNR)

33 U.S.C. 2706

Administrator, Environmental Protection Agency (EPA) or
Commandant, USCG; Authorized representatives of States.

″Clean Water Act″
33 U.S.C. 1321

Designated Federal, State or Indian tribal natural resources trustees,
including NOAA, DOI, FDEP, DNER, and DPNR.
Administrator of the EPA; States or Indian Tribes in cooperative
″Superfund Act″ (CERCLA)
agreements with EPA; Heads of other Federal agencies where release 42 U.S.C. 9604
is from vessel or facility solely under their control.
Administrator of the EPA

42 U.S.C. 9606

Designated Federal, State or Indian tribal natural resources trustees,
including NOAA, DOI, FDEP, DNER, and DPNR

42 U.S.C. 9607

DOI, National Park Service (NPS)

Park System Resource
Protection Act,
16 U.S.C. 19jj
16 U.S.C. 668dd-668ee
(National Wildlife Refuge
System)

DOI

National Wildlife Refuge
System Administration Act,
16 U.S.C. 668

FLORIDA:
The Board of Trustees of the Internal Improvement Trust Fund

State Lands; Board of
Trustees to Administer
FL Statute § 253.03
Duty of Board to Protect,
etc.
FL Statute. § 253.04
FDEP

Governor and Cabinet; FDEP

50 CFR 223.208(c)(6) (enhanced display)

Land Acquisition for
Conservation or Recreation;
Conservation and
Recreation Lands Trust
Fund

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50 CFR 223.208(c)(6)

FEDERAL:
Agency/Person

Statute and Specific
Provision(s)
FL Statute § 259.032

FDEP

Pollutant Discharge
Prevention and Removal;
Liability for Damage to
Natural Resources
FL Statute § 376.121

FDEP

Land and Water
Management; Coral Reef
Restoration
FL Statute § 390.0558

Florida Fish and Wildlife Conservation Commission

Fish and Wildlife
Conservation Commission
FL Statute § 20.331

U.S. VIRGIN ISLANDS:
DPNR

DPNR; Powers and Duties
of Department
3 V.I.C. § 401

DPNR

Conservation; Croix East
End Marine Park
Established;
12 V.I.C. § 98

PUERTO RICO:
DNER

Conservation; Protection,
Conservation and
Management of Coral
Reefs
12 L.P.R.A. §§ 241-241g et
seq.

DNER

Conservation; Natural
Patrimony Program
12 L.P.R.A. § 1225 et seq.

DNER

Conservation; Natural
Resources; Declarations of
Marine Reserves (and other
protected areas) containing
elkhorn and staghorn corals
12 L.P.R.A.; Subtitle 6A;
Chapter 252; §§ 5011 et
seq.

[73 FR 64276, Oct. 29, 2008, as amended at 79 FR 20813, Apr. 14, 2014]
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50 CFR 223.209

§ 223.209 [Reserved]
§ 223.210 Green sturgeon.
(a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) relating to endangered
species apply to the threatened Southern Distinct Population Segment (DPS) of green sturgeon listed in §
223.102.
(b) Exceptions. Exceptions to the take prohibitions described in section 9(a)(1) of the ESA (16 U.S.C.
1538(a)(1)) applied in paragraph (a) of this section to the threatened Southern DPS listed in § 223.102 are
described in the following paragraphs (b)(1) through (b)(3).
(1) Scientific research and monitoring exceptions. The prohibitions of paragraph (a) of this section
relating to the threatened Southern DPS listed in § 223.102 do not apply to ongoing or future Federal,
state, or private-sponsored scientific research or monitoring activities if:
(1) Scientific Research and Monitoring Exceptions. The prohibitions of paragraph (a) of this section
relating to the threatened Southern DPS listed in § 223.102(c)(1) do not apply to ongoing or future
Federal, state, or private-sponsored scientific research or monitoring activities if:
(i)

The scientific research or monitoring activity complies with required state reviews or permits;

(ii) The research or monitoring activity is directed at the Southern DPS and is not incidental to
research or monitoring of another species;
(iii) Take of live mature adults in the lower Feather River from the confluence with the Sacramento
River to the Oroville Dam (rkm 116), the lower Yuba River from the confluence with the Feather
River to the Daguerre Dam (rkm 19), or Suisun, San Pablo, and San Francisco Bays or the
Sacramento-San Joaquin Delta from the Golden Gate Bridge up into the Sacramento River to
Keswick Dam (rkm 483) occurs from July 1 through March 1 so as to substantially increase the
likelihood that uninterrupted upstream spawning migrations of adults will occur;
(iv) Take is non-lethal;
(v) Take involving the removal of any life stage of the Southern DPS from the wild does not exceed
60 minutes;
(vi) Take does not involve artificial spawning or enhancement activities;
(vii) A description of the study objectives and justification, a summary of the study design and
methodology, estimates of the total non-lethal take of Southern DPS fish anticipated, estimates
of incidental take of other ESA listed species anticipated and proof that those takes have been
authorized by NMFS or the USFWS, identification of funding sources, and a point of contact is
reported to the NMFS Southwest Regional Office in Long Beach at least 60 days prior to the
start of the study, or by August 31, 2010 for ongoing studies;
(viii) Reports that include the total number of Southern DPS and any other ESA listed species taken,
information that supports that take was non-lethal, and a summary of the project results is
submitted to the NMFS Southwest Regional Office in Long Beach on a schedule to be
determined by NMFS; and
(ix) Research or monitoring that involves action, permitting, or funding by a Federal agency still
complies with the requirements of ESA section 7(a)(2) in order to ensure that the action will not
jeopardize the continued existence of the threatened Southern DPS.
50 CFR 223.210 (enhanced display)

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50 CFR 223.210

(2) Enforcement exception. The prohibitions of paragraph (a) of this section relating to the threatened
Southern DPS listed in § 223.102 do not apply to any employee of NMFS, when the employee, acting
in the course of his or her official duties, takes a Southern DPS fish listed in § 223.102 without a
permit, if such action is necessary for purposes of enforcing the ESA or its implementing
regulations.
(3) Emergency fish rescue and salvage exceptions. The prohibitions of paragraph (a) of this section
relating to the threatened Southern DPS listed in § 223.102 do not apply to emergency fish rescue
and salvage activities that include aiding sick, injured, or stranded fish, disposing of dead fish, or
salvaging dead fish for use in scientific studies, if:
(i)

The activity complies with required state or other Federal reviews or permits;

(ii) The activity is conducted by an employee or designee of NMFS or the U.S. Fish and Wildlife
Service (USFWS), any Federal land management agency, or California Department of Fish and
Game, Oregon Department of Fish and Wildlife, Washington Department of Fish and Wildlife, or
Alaska Department of Fish and Game;
(iii) The activity benefits the Southern DPS; and
(iv) Those carrying out the activity submit a report to the NMFS Southwest Regional Office in Long
Beach that includes, at a minimum, the number and status of fish handled, the location of
rescue and/or salvage operations, and the potential causes(s) of the emergency situation
within 10 days after conducting the emergency rescue.
(4) Habitat restoration exceptions. The prohibitions of paragraph (a) of this section relating to the
threatened Southern DPS listed in § 223.102 do not apply to habitat restoration activities including
barrier removal or modification to restore water flows, riverine or estuarine bed restoration, natural
bank stabilization, restoration of native vegetation, removal of non-native species, or removal of
contaminated sediments, that reestablish self-sustaining habitats for the Southern DPS, if:
(i)

The activity complies with required state and Federal reviews and permits;

(ii) Those carrying out the activity submit a detailed description of the restoration activity to the
NMFS Southwest Regional Office in Long Beach at least 60 days prior to the start of the
restoration project, or, for ongoing studies, by August 31, 2010, which includes: the geographic
area affected; when activities will occur; how they will be conducted; and the severity of direct,
indirect, and cumulative impacts of activities on the Southern DPS; identification of funding
sources; demonstration that all state and Federal regulatory requirements have been met; a
description of methods used to ensure that the likelihood of survival or recovery of the listed
species is not reduced; a plan for minimizing and mitigating any adverse impacts to Southern
DPS spawning or rearing habitat; an estimate of the amount of incidental take of the listed
species that may occur and a description of how that estimate was made; a plan for effective
monitoring and adaptive management; a pledge to use best available science and technology
when conducting restoration activities; and a point of contact;
(iii) Those carrying out the activity submit progress reports that include the total number of
Southern DPS fish taken, information regarding whether the take was lethal or non-lethal, a
summary of the status of the project, and any changes in the methods being used, to the NMFS
Southwest Regional Office in Long Beach on a schedule to be determined by NMFS; and

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(iv) An activity that involves action, permitting, or funding by a Federal agency complies with the
requirements of ESA section 7(a)(2) in order to ensure that the action will not jeopardize the
continued existence of the threatened Southern DPS.
(c) Exemptions via ESA 4(d) Program Approval. Exemptions from the take prohibitions described in section
9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) applied in paragraph (a) of this section to the threatened
Southern DPS listed in § 223.102 are described in the following paragraphs:
(1) Scientific research and monitoring exemptions. The prohibitions of paragraph (a) of this section
relating to the threatened Southern DPS listed in § 223.102 do not apply to ongoing or future statesponsored scientific research or monitoring activities that are part of a NMFS-approved, ESAcompliant state 4(d) research program conducted by, or in coordination with, state fishery
management agencies (California Department of Fish and Game, Oregon Department of Fish and
Wildlife, Washington Department of Fish and Wildlife, or Alaska Department of Fish and Game), or as
part of a monitoring and research program overseen by, or coordinated by, one of these agencies.
State 4(d) research programs must meet the following criteria:
(i)

Descriptions of the ongoing and future 4(d) research or monitoring activity, as described in
paragraph (c)(1)(ii) of this section, must be received by the NMFS Southwest Regional Office in
Long Beach during the mid-September through mid-October 2010 application period. This
exception to the section 9 take prohibitions expires if the proposal is rejected as insufficient or
is denied. If the state 4(d) research program package is received during the mid-September to
mid-October application period, ongoing state-supported scientific research activities may
continue until NMFS issues a written decision of approval or denial. If approved, the state 4(d)
program authorization will cover one calendar year and state-supported researchers would
have to renew authorizations annually during subsequent application periods.

(ii) Descriptions of ongoing and future state-supported research activities must include the
following information and should be submitted to NMFS by the State: an estimate of total direct
or incidental take; a description of the study design and methodology; a justification for take
and the techniques employed; and a point of contact.
(iii) NMFS will provide written approval of a state 4(d) research program.
(iv) The State agency will provide an annual report to NMFS that, at a minimum, summarizes the
number of Southern DPS green sturgeon taken directly or incidentally, and summarizes the
results of the project.
(2) Fisheries exemptions. The prohibitions of paragraph (a) of this section relating to the threatened
Southern DPS listed in § 223.102 do not apply to fisheries activities that are conducted in
accordance with a NMFS-approved Fishery Management and Evaluation Plan (FMEP). If NMFS finds
that an FMEP meets the criteria listed below, a letter of concurrence which sets forth the terms of
the FMEP's implementation and the duties of the parties pursuant to the FMEP, will be issued to the
applicant.
(i)

An FMEP must prohibit retention of green sturgeon (i.e., zero bag limit); set maximum incidental
take levels, include restrictions to minimize incidental take of the green sturgeon (e.g.,
temporal/spatial restrictions, size of fish, gear used); provide a biologically based rationale
demonstrating that the incidental take management strategy will not significantly reduce the
likelihood of survival or recovery of the Southern DPS; include effective monitoring and
evaluation plans; provide for evaluating monitoring data and making revisions to the FMEP;

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provide for effective enforcement and education; provide a timeframe for FMEP
implementation; and report the amount of incidental take and summarize the effectiveness of
the FMEP to NMFS on a biannual basis.
(ii) The ESA section 9(a)(1)(B) and (a)(1)(C) take prohibitions will not apply to ongoing commercial
and recreational fisheries activities until September 30, 2010 if a letter of intent to develop an
FMEP that is protective of green sturgeon has been received by NMFS by July 2, 2010. The
exemption will expire if the letter of intent is rejected without further review of a FMEP. If the
letter of intent is received by August 31, 2010, a draft FMEP must be received by NMFS within 6
months from the date of receipt of the letter of intent. A final FMEP must be received by NMFS
within 3 months from the date of receipt of NMFS' comments on the draft FMEP. Ongoing
commercial and recreational fisheries activities may continue until NMFS issues a letter of
concurrence or denial for final FMEPs.
(iii) NMFS will provide a public comment period (≥30 days) before approval of new or amended
FMEPs; provide a letter of concurrence for approved FMEPs that specifies the implementation
and reporting requirements; evaluate FMEPs every 5 years and identify changes that would
improve their effectiveness; and provide a public comment period (≥30 days) before
withdrawing approval of an FMEP.
(3) Tribal exemptions. The prohibitions of paragraph (a) of this section relating to the threatened
Southern DPS listed in § 223.102 do not apply to fishery harvest or other activities undertaken by a
tribe, tribal member, tribal permittee, tribal employee, or tribal agent in Willapa Bay, WA, Grays Harbor,
WA, Coos Bay, OR, Winchester Bay, OR, Humboldt Bay, CA, and any other area where tribal treaty
fishing occurs, if those activities are compliant with a tribal resource management plan (Tribal Plan),
provided that the Secretary determines that implementation of such Tribal Plan will not appreciably
reduce the likelihood of survival and recovery of the Southern DPS. In making that determination the
Secretary shall use the best available biological data (including any tribal data and analysis) to
determine the Tribal Plan's impact on the biological requirements of the species, and will assess the
effect of the Tribal Plan on survival and recovery, consistent with legally enforceable tribal rights and
with the Secretary's trust responsibilities to tribes.
(i)

A Tribal Plan may include, but is not limited to, plans that address fishery harvest, artificial
production, research, or water or land management, and may be developed by one tribe or
jointly with other tribes. The Secretary will consult on a government-to-government basis with
any tribe that so requests and will provide, to the maximum extent practicable, technical
assistance in examining impacts on the Southern DPS as tribes develop Tribal Plans. A Tribal
Plan must specify the procedures by which the tribe will enforce its provisions.

(ii) Where there exists a Federal court proceeding with continuing jurisdiction over the subject
matter of a Tribal Plan, the plan may be developed and implemented within the ongoing Federal
Court proceeding. In such circumstances, compliance with the Tribal Plan's terms shall be
determined within that Federal Court proceeding.
(iii) The Secretary shall seek comment from the public on the Secretary's pending determination
whether implementation of a Tribal Plan will appreciably reduce the likelihood of survival and
recovery of the listed Southern DPS.
(iv) The Secretary shall publish notification in the FEDERAL REGISTER of any determination regarding a
Tribal Plan and the basis for that determination.

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(d) ESA section 10 permits. The exceptions of section 10 of the ESA (16 U.S.C. 1539) and other exceptions
under the ESA relating to endangered species, including regulations in part 222 of this chapter II
implementing such exceptions, also apply to the threatened Southern DPS listed in § 223.102. Federal,
state, and private-sponsored research activities for scientific research or enhancement purposes that are
not covered under Scientific Research and Monitoring Exceptions as described in paragraph (b)(1) of this
section or Scientific Research and Monitoring Exemptions as described in paragraph (c)(1) of this section,
may take Southern DPS fish pursuant to the specifications of an ESA section 10 permit.
(e) Affirmative defense. In connection with any action alleging a violation of the prohibitions of paragraph (a)
of this section with respect to the threatened Southern DPS listed in § 223.102, any person claiming that
his or her take is excepted via methods listed in paragraph (b) of this section shall have a defense where
the person can demonstrate that the exception is applicable and was in force, and that the person fully
complied with the exception's requirements at the time of the alleged violation. This defense is an
affirmative defense that must be raised, pleaded, and proven by the proponent. If proven, this defense will
be an absolute defense to liability under section 9(a)(1)(G) of the ESA with respect to the alleged
violation.
[75 FR 30728, June 2, 2010, as amended at 79 FR 20813, Apr. 14, 2014]

§ 223.211 Atlantic sturgeon.
(a) Prohibitions. The prohibitions of sections 9(a)(1)(A) through 9(a)(1)(G) of the ESA (16 U.S.C. 1538)
relating to endangered species apply to the threatened Gulf of Maine Distinct Population Segment (Gulf of
Maine DPS) of Atlantic sturgeon listed in § 223.102(c)(29).
(b) [Reserved]
[78 FR 69315, Nov. 19, 2013]

§ 223.212 Southern DPS of spotted seal.
The prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) relating to endangered species shall apply to
the Southern Distinct Population Segment of spotted seal listed in § 223.102.
[79 FR 20814, Apr. 14, 2014]

§ 223.213 Humpback whales.
The prohibitions of section 9(a)(1)(A) through 9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species
apply to threatened species of the humpback whale listed in § 223.102(e).
[81 FR 62319, Sept. 8, 2016]

§ 223.214 Approaching threatened humpback whales in Alaska.
(a) Prohibitions. Except as provided under paragraph (b) of this section, 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 to
cause to be committed, within 200 nautical miles (370.4 km) of Alaska, or within inland waters of the
state, any of the acts in paragraphs (a)(1) through (a)(3) of this section with respect to threatened
humpback whales (Megaptera novaeangliae):
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(1) Approach, by any means, including by interception (i.e., placing a vessel in the path of an oncoming
humpback whale so that the whale surfaces within 100 yards (91.4 m) of the vessel), within 100
yards (91.4 m) of any humpback whale;
(2) Cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale; or
(3) Disrupt the normal behavior or prior activity of a whale by any other act or omission. A disruption of
normal behavior may be manifested by, among other actions on the part of the whale, a rapid change
in direction or speed; escape tactics such as prolonged diving, underwater course changes,
underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting
activities, attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by
other protective movement; or the abandonment of a previously frequented area.
(b) Exceptions. The following exceptions apply, but any person who claims the applicability of an exception
has the burden of proving that the exception applies:
(1) Paragraph (a) of this section does not apply if an approach is authorized by the National Marine
Fisheries Service through a permit issued under part 222, subpart C, of this chapter (General Permit
Procedures) or through a similar authorization.
(2) Paragraph (a) of this section does not apply to the extent that a vessel is restricted in its ability to
maneuver and, because of the restriction, cannot comply with paragraph (a) of this section.
(3) Paragraph (a) of this section does not apply to commercial fishing vessels lawfully engaged in
actively setting, retrieving or closely tending commercial fishing gear. For purposes of this section,
commercial fishing means taking or harvesting fish or fishery resources to sell, barter, or trade.
Commercial fishing does not include commercial passenger fishing operations (i.e. charter
operations or sport fishing activities).
(4) Paragraph (a) of this section does not apply to state, local, or Federal government vessels operating
in the course of official duty.
(5) Paragraph (a) of this section does not affect the rights of Alaska Natives under 16 U.S.C. 1539(e).
(6) This section shall not take precedence over any more restrictive conflicting Federal regulation
pertaining to humpback whales, including the regulations at 36 CFR 13.1102-13.1188 that pertain
specifically to the waters of Glacier Bay National Park and Preserve.
(c) General measures. Notwithstanding the prohibitions and exceptions in paragraphs (a) and (b) of this
section, to avoid collisions with threatened humpback whales, vessels must operate at a slow, safe speed
when near a humpback whale. “Safe speed” has the same meaning as the term is defined in 33 CFR 83.06
and the International Regulations for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602), with respect
to avoiding collisions with humpback whales.
[81 FR 62021, Sept. 8, 2016]

§§ 223.215-223.300 [Reserved]
§ 223.301 Special rules—marine and anadromous fishes.
(a) Middle Columbia River steelhead (Oncorhynchus mykiss. )
(1) The Middle Columbia River steelhead located in the geographic areas identified in paragraph (a)(4) of
this section comprise a nonessential, experimental population (NEP).
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(2) Take of this species that is allowed in the NEP area.
(i)

Taking of Middle Columbia River (MCR) steelhead that is otherwise prohibited by paragraph
(a)(3) of this section and 50 CFR 223.203(a), provided that the taking is unintentional; not due
to negligent conduct; and incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity. Examples of otherwise lawful activities include recreational fishing, recreation,
agriculture, forestry, municipal usage, and other similar activities, which are carried out in
accordance with Federal, state, and local laws and regulations as well as applicable tribal
regulations.

(ii) Handling of MCR steelhead in the NEP area by NMFS, Oregon Department of Fish and Wildlife
(ODFW) and the Confederated Tribes of the Warm Springs Reservation of Oregon (CTWS)
employees and authorized agents acting on their behalf for scientific purposes and by the
Portland General Electric Company (PGE) and CTWS employees and authorized agents acting
on their behalf for the purpose of monitoring and evaluating the ongoing reintroduction under
the Federal Energy Regulatory Commission (FERC) license for the Pelton Round Butte
Hydroelectric Project (FERC No. 2030).
(iii) Taking of MCR steelhead incidental to any activities related to or associated with the operation
and maintenance of Pelton Round Butte Hydroelectric Project's (FERC Project No. 2030) Round
Butte Dam by PGE or CTWS as administered under a license issued by FERC. Acceptable forms
of taking of steelhead include, but are not limited to, mortality, stranding, injury, impingement at
Round Butte Dam facilities, or delay in up- or downstream passage associated with or caused
by any of the following activities. Activities related to the operation and maintenance of Round
Butte Dam include, but are not limited to:
(A) Hydroelectric generation;
(B) Maintenance of project facilities;
(C) Provision of upstream and downstream fish passage,
(D) Fish handling at fish separation and counting facilities;
(E) Fish conservation activities;
(F) Fish handling, tagging, and sampling in connection with FERC approved studies; and
(G) Approved resource protection, mitigation, and enhancement measures.
(iv) Handling MCR steelhead by Deschutes Valley Water District employees and agents acting on
their behalf for the purpose of monitoring and evaluating the Opal Springs Hydroelectric Project
(FERC No. 5891).
(v) Take incidental to any activities related to or associated with the operation and maintenance of
the Opal Springs Hydroelectric Project (FERC Project No. 5891) as administered under a license
issued by FERC and the Settlement Agreement Concerning License Amendment for Fish
Passage, dated October 2011.
(vi) Take of MCR steelhead by any person with a valid permit issued by NMFS and a valid permit
issued by the ODFW for educational purposes, scientific purposes, and the enhancement of
propagation or survival of the species, zoological exhibition, and other conservation purposes
consistent with the ESA.
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(3) Take of this species that is not allowed in the NEP area.
(i)

Except as expressly allowed in paragraph (a)(2) of this section, the taking of MCR steelhead is
prohibited within the NEP geographic area, as provided in 50 CFR 223.203(a).

(ii) No person shall possess, sell, deliver, carry, transport, ship, import, or export, by any means
whatsoever, MCR steelhead taken in violation of this paragraph (a)(3)(ii) and 50 CFR
223.203(a).
(4) Geographic extent of the nonessential experimental population of Middle Columbia River steelhead.
(i)

The geographic range of this experimental population is all accessible reaches upstream of
Round Butte Dam on the Deschutes River, including tributaries Whychus Creek, Crooked River
and Metolius River. More specifically, the geographic range includes all accessible reaches of
the Deschutes River downstream to Round Butte Dam; the Whychus Creek subbasin; the
Metolius River subbasin; and the Crooked River subbasin from Bowman Dam downstream
(including the Ochoco and McKay Creek watersheds) to its point of confluence with the
Deschutes River.

(ii) Round Butte Dam is the downstream terminus of this NEP. When MCR steelhead are below the
Round Butte Dam, they will be outside the NEP area and thus considered part of the
nonexperimental population.
(5) Review and evaluation of nonessential experimental population. As a requirement under its Federal
license to operate the Pelton Round Butte Project, Portland General Electric Company and the
Confederated Tribes of the Warm Springs Reservation of Oregon will conduct monitoring over the
50-year term of the license. This monitoring will include collecting information on the reintroduction
program that NMFS will use in evaluating the NEP designation.
(6) Time frame for NEP designation. This NEP designation will expire on January 15, 2025.
(b) San Joaquin River Central Valley (CV) spring-run Chinook Salmon Experimental Population (Oncorhynchus
tshawytscha).
(1) The San Joaquin River CV spring-run Chinook salmon population identified in paragraph (b)(2) of this
section is designated as a nonessential experimental population under section 10(j) of the ESA.
(2) San Joaquin River CV Spring-run Chinook Salmon Experimental Population. All CV spring-run
Chinook salmon, including those that have been released or propagated, naturally or artificially,
within the experimental population area in the San Joaquin River as defined here are considered part
of the San Joaquin River experimental population. The boundaries of this experimental population
area include the San Joaquin River from Friant Dam downstream to its confluence with the Merced
River, delineated by a line between decimal latitude and longitude coordinates: 37.348930° N,
120.975174° W and 37.349099° N, 120.974749° W, as well as all sloughs, channels, floodways, and
waterways connected with the San Joaquin River that allow for CV spring-run Chinook salmon
access, but excluding the Merced River. Those portions of the Kings River that connect with the San
Joaquin River during high water years are also part of the experimental population area.
(3) Prohibitions. Except as expressly allowed in paragraph (b)(4) of this section, all prohibitions of
section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)), except 9(a)(1)(C), apply to fish that are part of the
threatened, nonessential experimental population of CV spring-run Chinook salmon identified in
paragraph (b)(2) of this section.

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(4) Exceptions to the Application of Section 9 Take Prohibitions in the Experimental Population Area.
The following forms of take in the experimental population area identified in paragraph (b)(2) of this
section are not prohibited by this section:
(i)

Any taking of CV spring-run Chinook salmon provided that it is unintentional, not due to
negligent conduct, and incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity.

(ii) Any taking of CV spring-run Chinook salmon by an employee or designee of NMFS, the USFWS,
other Federal resource management agencies, the California Department of Fish and Wildlife,
or any other governmental entity if in the course of their duties it is necessary to: aid a sick,
injured or stranded fish; dispose of a dead fish; or salvage a dead fish which may be useful for
scientific study. Any agency acting under this provision must report to NMFS (see ADDRESSES
section) the numbers of fish handled and their status on an annual basis.
(iii) Any taking of CV spring-run Chinook salmon for scientific research or enhancement purposes
by a person or entity with a valid section ESA 10(a)(1)(A) permit issued by NMFS and a valid
incidental take permit, consistency determination, or other take authorization issued by the
CDFW.
(iv) Any taking of CV spring-run Chinook salmon for scientific research purposes by the CDFW
provided that:
(A) Scientific research activities involving purposeful take are conducted by employees or
contractors of CDFW or as a part of a monitoring and research program overseen by or
coordinated with CDFW.
(B) CDFW provides for NMFS' review and approval a list of all scientific research activities
involving direct take planned for the coming year, including an estimate of the total direct
take that is anticipated, a description of the study design, including a justification for
taking the species and a description of the techniques to be used, and a point of contact.
(C) CDFW annually provides to NMFS the results of scientific research activities directed at
fish in the experimental population, including a report of the direct take resulting from the
studies and a summary of the results of such studies.
(D) Scientific research activities that may incidentally take fish in the experimental population
are either conducted by CDFW personnel, or are in accord with a permit issued by the
CDFW.
(E) CDFW provides NMFS annually, for its review and approval, a report listing all scientific
research activities it conducts or permits that may incidentally take fish in the
experimental population during the coming year. Such reports shall also contain the
amount of incidental take occurring in the previous year's scientific research activities and
a summary of the results of such research.
(F) Electro fishing in any body of water known or suspected to contain fish in the experimental
population is conducted in accordance with NMFS “Guidelines for Electrofishing Waters
Containing Salmonids Listed Under the Endangered Species Act” (NMFS, 2000a).

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(G) CDFW provides NMFS, for its review and approval, the Monitoring and Analysis Plan
produced by the San Joaquin River Restoration Program, including an estimate of the
direct and indirect take that may result from all scientific research activities in that plan for
the period from January 30, 2014 until January 30, 2015.
(H) NMFS' approval of a research program shall be a written approval by the NMFS West
Coast Regional Administrator.
(5) Limited Exception to the Application of Section 9(a)(1) Take Prohibitions Outside of the Experimental
Population Area. The following forms of take are not prohibited:
(i)

Any taking of CV spring-run Chinook salmon in those portions of the lower San Joaquin River
and its tributaries, including the Merced River, downstream from its confluence with the Merced
River to Mossdale County Park in San Joaquin County, that the avoidance of which would
impose more than de minimus water supply reductions, additional storage releases, or bypass
flows on unwilling persons or entities diverting or receiving water pursuant to applicable State
and Federal laws.

(ii)
(A) Any taking of CV spring-run Chinook salmon by the Central Valley Project (CVP) and State
Water Project (SWP) that originates from reintroduction to the San Joaquin River that the
avoidance of which would impose more than de minimus water supply reductions,
additional storage releases, or bypass flows on unwilling persons or entities diverting or
receiving water pursuant to applicable State and Federal laws.
(B) NMFS will prepare a technical memorandum that describes the methodology to ensure
that CV spring-run Chinook salmon originating from reintroduction to the San Joaquin
River do not cause more than de minimus water supply reductions, additional storage
releases, or bypass flows associated with the operations of the CVP and SWP under any
ESA section 7 biological opinion or section 10 permit that is in effect at the time for
operations of the CVP and SWP. To the maximum extent feasible, NMFS will develop this
technical memorandum in coordination with and with opportunity for comment by
interested parties. The first technical memorandum will be completed before CV springrun Chinook salmon will be released in the San Joaquin River. Prior to January 15 of each
succeeding year, NMFS will update the technical memorandum and, if required by the
methodology, determine the share of take at the CVP and SWP facilities that originates
from the reintroduction to the San Joaquin River. This share of take of CV spring-run
Chinook salmon reintroduced to the San Joaquin River will be deducted from or otherwise
used to adjust the operational triggers and incidental take statements associated with any
biological opinion that is in effect at the time for operations of the CVP and SWP facilities.
NMFS will use best available commercial or scientific information to inform these
calculations. The technical memorandum and annual determination will ensure that the
reintroduction of CV spring-run Chinook salmon will not result in more than de minimus
water supply reductions, additional storage releases or bypass flows of the CVP and SWP
operations under any biological opinion or ESA section 10 permit that is in effect at the
time for operations of the CVP and SWP on unwilling persons or entities diverting or
receiving water pursuant to applicable State and Federal laws.
(c) Okanogan River UCR spring-run Chinook Salmon Experimental Population (Oncorhynchus tshawytscha).

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(1) The Upper Columbia River (UCR) spring-run Chinook salmon population located in the geographic
area identified in paragraph (c)(5) of this section shall comprise the Okanogan River nonessential
experimental population (NEP), and shall be treated as a “threatened species” pursuant to 16 U.S.C.
1539(j)(2)(C).
(2) Prohibitions. Except as provided in paragraph (c)(3) of this section, the prohibitions of section 9(a)(1)
of the ESA (16 U.S.C. 1538(a)(1)) relating to endangered species apply to UCR spring-run Chinook
salmon in the Okanogan River NEP Area, defined in paragraph (c)(5) of this section.
(3) Exceptions to the Application of Section 9 Take Prohibitions in the Experimental Population Area.
Take of UCR spring-run Chinook salmon that is otherwise prohibited by paragraph (c)(2) of this
section and 50 CFR 223.203(a) in the Okanogan River NEP Area is allowed, except as otherwise
noted, provided it falls within one of the following categories:
(i)

Any activity taken pursuant to a valid permit issued by NMFS under § 223.203(b)(1) and (7) for
scientific research activities;

(ii) Aid, disposal, or salvage of fish by authorized agency personnel acting in compliance with 50
CFR 223.203(b)(3);
(iii) Activities associated with artificial propagation of the experimental population under an
approved Hatchery Genetic Management Plan (HGMP) that complies with the requirements of
50 CFR 223.203(b)(5);
(iv) Any harvest-related activity undertaken by a tribe, tribal member, tribal permittee, tribal
employee, or tribal agent consistent with tribal harvest regulations and an approved Tribal
Resource Management Plan (TRMP) that complies with the requirements of 50 CFR 223.204;
(v) Any harvest-related activity consistent with state harvest regulations and an approved Fishery
Management Evaluation Plan (FMEP) that complies with the requirements of 50 CFR
223.203(b)(4); or
(vi) Any take that is incidental to an otherwise lawful activity, provided that the taking is
unintentional; not due to negligent conduct; and incidental to, and not the purpose of, the
carrying out of the otherwise lawful activity. Otherwise lawful activities include, but are not
limited to, agricultural, water management, construction, recreation, navigation, or forestry
practices, when such activities are in full compliance with all applicable laws and regulations.
Any fish that is incidentally taken in a manner allowed by this paragraph may not be collected
and must be immediately returned to its habitat.
(4) Prohibited take outside the NEP area. Outside the Okanogan River NEP Area, UCR spring-run Chinook
salmon are not considered to be part of the NEP, irrespective of their origin, and therefore the take
prohibitions for endangered UCR spring-run Chinook salmon apply.
(5) Geographic extent of the Okanogan River NEP Area. The geographic boundary defining the Okanogan
River NEP Area for UCR spring-run Chinook salmon is the mainstem and all tributaries of the
Okanogan River between the Canada-United States border to the confluence of the Okanogan River
with the Columbia River. All UCR spring-run Chinook salmon in this defined Okanogan River NEP Area
are considered part of the NEP, irrespective of where they originated.
(d) Upper Yuba River Central Valley spring-run Chinook salmon experimental population (Oncorhynchus
tshawytscha)—

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.301(d)(1)

(1) Status of Upper Yuba River Central Valley spring-run Chinook salmon under the Endangered Species
Act. The Upper Yuba River Central Valley spring-run Chinook salmon population identified in
paragraph (d)(2) of this section is designated as a nonessential experimental population under
section 10(j) of the Endangered Species Act (ESA) and shall be treated as a “threatened species”
pursuant to 16 U.S.C. 1539(j)(2)(C).
(2) Upper Yuba River Central Valley spring-run Chinook salmon nonessential experimental population. All
Central Valley spring-run Chinook salmon within the NEP area in the upper Yuba River watershed
upstream of Englebright Dam, as defined in this paragraph (d)(2), are considered part of the Upper
Yuba River Central Valley spring-run Chinook salmon nonessential experimental population. The
boundaries of the NEP area include Englebright Dam and all tributaries draining into Englebright
Reservoir up to the ridgeline.
(3) Prohibitions. Except as expressly allowed in paragraph (d)(4) of this section, all prohibitions of
section 9(a)(1) of the ESA (16 U.S.C. 1538 (a)(1)) apply to fish that are part of the Upper Yuba River
Central Valley spring-run Chinook salmon nonessential experimental population identified in
paragraph (d)(2) of this section.
(4) Exceptions to the application of section 9 take prohibitions in the NEP area. The following forms of
take in the NEP area identified in paragraph (d)(2) of this section are not prohibited by this section:
(i)

Any taking of Central Valley spring-run Chinook salmon by authorized governmental entity
personnel acting in compliance with § 223.203(b)(3) to aid a sick, injured or stranded fish;
dispose of a dead fish; or salvage a dead fish which may be useful for scientific study;

(ii) Any taking of Central Valley spring-run Chinook salmon that is unintentional, not due to
negligent conduct, and incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity; and
(iii) Any taking of Central Valley spring-run Chinook salmon pursuant to a permit issued by the
National Marine Fisheries Service (NMFS) under section 10 of the ESA (16 U.S.C. 1539) and
regulations in part 222 of this chapter applicable to such a permit.
(e) McCloud and Upper Sacramento Rivers Sacramento River winter-run and Central Valley spring-run Chinook
salmon experimental populations (Oncorhynchus tshawytscha)—
(1) Status of McCloud and Upper Sacramento Rivers Sacramento River winter-run and Central Valley
spring-run Chinook salmon under the ESA. The McCloud and Upper Sacramento Rivers Sacramento
River winter-run and Central Valley spring-run Chinook salmon populations identified in paragraph
(e)(2) of this section are designated as nonessential experimental populations under section 10(j) of
the ESA and shall be treated as a “threatened species” pursuant to 16 U.S.C. 1539(j)(2)(C).
(2) McCloud and Upper Sacramento Rivers Sacramento River winter-run and Central Valley spring-run
Chinook salmon experimental populations. All Sacramento River winter-run and Central Valley springrun Chinook salmon within the experimental population area in the McCloud and Upper Sacramento
Rivers upstream of Shasta Dam (the NEP Area), as defined in this paragraph (e)(2), are considered
part of the McCloud and Upper Sacramento Rivers Sacramento River winter-run and Central Valley
spring-run Chinook salmon experimental populations. The NEP Area extends from Shasta Dam up to
Pit 7 Dam on the Pit River, McCloud Dam on the McCloud River, and Box Canyon Dam on the upper
Sacramento River. All other tributaries flowing into Shasta Reservoir up to the ridge line, including
tributaries below Pit 7 Dam, McCloud Dam, and Box Canyon Dam, up to the ridge line are included in
the NEP Area. All other areas above Pit 7 Dam on the Pit River, McCloud Dam on the McCloud River,
50 CFR 223.301(e)(2) (enhanced display)

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50 CFR Part 223 Subpart B (up to date as of 9/24/2024)
Restrictions Applicable to Threatened Marine and Anadromous Species

50 CFR 223.301(e)(3)

and Box Canyon Dam on the upper Sacramento River are not part of the NEP Area. The NEP Area
extends up to the ridgelines to account for watershed processes and ends at the aforementioned
dams because these dams lack fish passage facilities. The NEP Area is part of the species'
historical range. The NEPs are all SR winter-run and CV spring-run Chinook salmon, including fish
released or propagated, naturally or artificially, within the NEP Area.
(3) Prohibitions. Except as expressly allowed in paragraph (e)(4) of this section, all prohibitions of
section 9(a)(1) of the ESA (16 U.S.C. 1538 (a)(1)) apply to fish that are part of the McCloud and
Upper Sacramento Rivers Sacramento River winter-run and Central Valley spring-run Chinook salmon
nonessential experimental populations identified in paragraph (e)(2) of this section.
(4) Exceptions to the application of section 9 take prohibitions in the experimental population area. The
following forms of take in the experimental population area identified in paragraph (e)(2) of this
section are not prohibited by this section:
(i)

Any taking of experimental populations of Sacramento River winter-run or Central Valley springrun Chinook salmon by authorized governmental entity personnel acting in compliance with §
223.203(b)(3) to aid a sick, injured or stranded fish; dispose of a dead fish; or salvage a dead
fish which may be useful for scientific study.

(ii) Any taking of experimental populations of Sacramento River winter-run or Central Valley springrun Chinook salmon that is unintentional, not due to negligent conduct, and incidental to, and
not the purpose of, the carrying out of an otherwise lawful activity.
(iii) Any taking of experimental populations of Sacramento River winter-run or Central Valley springrun Chinook salmon pursuant to a permit issued by NMFS under section 10 of the ESA (16
U.S.C. 1539) and regulations in part 222 of this chapter applicable to such a permit.
[78 FR 2907, Jan. 15, 2013, as amended at 78 FR 79632, Jan. 30, 2014; 79 FR 40015, July 11, 2014; 87 FR 79818, Dec. 28, 2022;
88 FR 58520, Aug. 28, 2023]

50 CFR 223.301(e)(4)(iii) (enhanced display)

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