(a) Regulations in this subpart apply only to the Texas Parks and Wildlife Department (TPWD) and those persons acting under its authority during fishery research surveys and authorize the incidental taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to research survey program operations. Requirements imposed upon TPWD must be implemented by those persons the TPWD authorizes or funds to conduct activities on its behalf.

(b) The taking of marine mammals by TPWD may be authorized in a letter of authorization (LOA) only if the taking occurs within the following Texas bays: Matagorda, Tres Palacios, Lavaca Bay (Includes Lavaca and Tres Palacios with the eastern limit is roughly Caney Creek), Copano Bay, San Antonio, Aransas, Redfish, Espiritu Santo (bounded by the Matagorda Island barrier and the Espiritu Santo Bay flats), Corpus Christi and Nueces Bay (Northern limit at Mesquite Bay; southern limit at the Upper Laguna Madre flats), upper Laguna Madre and lower Laguna Madre (From the John F. Kennedy Memorial Causeway (27.648 N, 97.276 W) south to the Rio Grande), West Bay (From the I-45 Causeway southwest to Drum Bay/San Luis Pass area), Galveston, East, Trinity Bay (Southwest boundary is the I-45 Galveston Causeway Bridge (29.288 N, 94.888 W) Includes Bolivar Roads), and Sabine Lake (From the Sabine Pass jetties east to the Louisiana border). See Figure 2.

Regulations under this subpart are effective from August 1, 2026, through July 31, 2031.

Under a LOA issued pursuant to §§ 216.106 of this chapter and 217.96, the holder of the LOA (hereinafter “TPWD”) may incidentally, but not intentionally, take marine mammals within the areas described in § 217.90 by Level A harassment, serious injury, or mortality associated with fisheries research provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the relevant LOA.

(a) Except for the taking permitted in § 217.90 and authorized by the LOA issued under § 216.106 of this chapter, it is unlawful for any person to do any of the following in connection with the specified activities:

(1) Violate or fail to comply with the terms, conditions, and requirements of this subpart or the LOA issued under this subpart;

(2) Take any marine mammal not specified in § 217.90;

(3) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA;

(4) Take any marine mammal specified in § 217.90 after NMFS determines such taking results in more than a negligible impact on the species or stock of such marine mammal; or

(5) Take any marine mammal specified in § 217.90 after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.

(b) [Reserved]

(a) When conducting the activities identified in § 217.90(a), the mitigation measures contained in this subpart and any LOA issued under §§ 216.106 and 217.96 of must be implemented by TPWD. These mitigation measures include:

(1) Only new or fully repaired gillnets may be used.

(2) TPWD must use gillnets with 2,101 hangings which connect the net to the float and lead line, with all hangings less than or equal to 4 inch (in) or 10 centimeters (cm) along the float and lead line.

(3) TPWD must set gillnets to ensure each gillnet is set as tight as possible from the surface to the seafloor and has marker buoys attached with ropes to the junctures of each mesh size and the end of the net as short as possible.

(4) If any bottlenose dolphins are present, deployment of gillnets shall not occur until all dolphins have left the area.

(5) If bottlenose dolphins enter the area while a gillnet is being set, the lead line shall be raised and lowered repeatedly to encourage the animals to leave the site. If bottlenose dolphins remain in the area, the gillnet must be hauled back onto the vessel, and an alternative site must be selected.

(6) Any live captured marine mammals must be released from the gillnet gear and returned to the water as soon as possible with no gear or as little gear as possible remaining on the animal. Animals must be released without removing them from the water.

(7) TPWD must not set gillnets in grids where dolphins have been taken on more than one occasion or where multiple adjacent grids have had at least one dolphin encounter.

(8) TPWD must implement a “last out/first in” set strategy at sites where bottlenose dolphins have been encountered within the last 5-years. A net set in this manner will be deployed last for the day and retrieved first on the next day.

(b) [Reserved]

(a) Staff training. TPWD staff must attend a safe handling, release, and identification workshop. TPWD shall ensure that at least one staff member on every gillnet sampling trip has had the training. TPWD shall hold staff meetings prior to the start of each gillnet season which will include: special instructions for handling bottlenose dolphins, scanning for the presence of dolphins prior to gillnet sets, scanning nets for entanglements, and what to do if there is an entanglement.

(b) Visual monitoring. TPWD staff must slow the vessel between 600 to 1000 feet (ft) (183 to 305 meters (m)) from the shoreline when approaching a sampling site. All staff members would scan the surface of the water for 15 minutes to watch and listen for surface activity prior to setting the nets. If a bottlenose dolphin is observed during the 15-minute observation period at the site, the net shall not be deployed. If bottlenose dolphins are observed, the net may only be deployed if the bottlenose dolphins are observed on a path away from the site consistently for 15 minutes or are not re-sighted within 15 minutes.

(c) Reporting of injured or dead marine mammals. (1) In the event that the activity defined in § 217.90(a) causes the take of a marine mammal in a prohibited manner, TPWD shall not set any more nets until such time as an appropriate decision regarding the activity continuation can be made by NMFS Office of Protected Resources (OPR). OPR will review the circumstances of the prohibited take and determine what measures are necessary to minimize the likelihood of further prohibited take. The report must include the information included in paragraph (c)(2) of this section, details of research survey, monitoring conducted prior to interaction, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling.

(2) TPWD shall report all marine mammals encounters observed during fishery research surveys that are not attributed to the specified activity to the Southeast Regional Stranding Coordinator within 24 hours. The following information shall be provided:

(i) Time, date, and location (latitude/longitude) of the incident;

(ii) Description of the incident including, but not limited to, monitoring prior to and occurring at time of incident;

(iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility);

(iv) Description of the animal(s) involved (e.g., size, age class);

(v) Water depth and net location where entangled;

(vi) Nature of the entanglement (i.e., part(s) of the animal(s) entangled, where in the net it was entangled);

(vii) Fate of the animal(s);

(viii) Detailed description of events, including how the animal(s) was disentangled and behavior upon release, including signs of injury (if alive); and

(ix) Photographs or video footage of the animal(s).

(d) Annual reporting. (1) TPWD shall submit an annual summary report to OPR not later than 90 days following the end of the fall sampling season. TPWD shall provide a final report within 30 days following resolution of comments on the draft report.

(2) These reports shall contain, at minimum, the following:

(i) Locations and time/date of all net sets;

(ii) All instances of marine mammal observations and descriptions of any mitigation procedures implemented or not implemented and why;

(iii) All incidents of marine mammal interactions, including all information required in paragraph (b) of this section;

(iv) A written evaluation of the effectiveness of TPWD mitigation strategies in reducing the number of marine mammal interactions with survey gear, including gear modifications and best professional judgment and suggestions for changes to the mitigation strategies, if any; and

(v) A summary of all relevant marine mammal training and any coordination with OPR.

(a) To incidentally take marine mammals pursuant to these regulations, TPWD must apply for and obtain an LOA.

(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.

(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, TPWD must apply for and obtain a modification of the LOA as described in § 217.97.

(d) The LOA shall set forth:

(1) Permissible methods of incidental taking;

(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and

(3) Requirements for monitoring and reporting.

(e) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.

(f) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.

(a) An LOA issued under §§ 216.106 of this chapter and 217.96 for the activity identified in § 217.90(a) shall be renewed or modified upon request by the applicant, provided that:

(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and

(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented;

(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.

(c) An LOA issued under §§ 216.106 of this chapter and 217.96 for the activity identified in § 217.90(a) may be modified by Office of Protected Resources (OPR) under the following circumstances:

(1) Adaptive management. OPR may modify or augment the existing mitigation, monitoring, or reporting measures (after consulting with SEFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

(i) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the Federal Register and solicit public comment.

(ii) [Reserved]

(2) Emergencies. If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 219.97, an LOA may be modified without prior notice or opportunity for public comment. A notice would be published in the Federal Register within 30 days of the action.