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Proposed Rule2026-05263

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Texas Parks and Wildlife Department Fisheries Research

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Published

March 18, 2026

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

NMFS has received a request from the Texas Parks and Wildlife Department (TPWD) for authorization to take marine mammals incidental to fisheries research in the coastal bays of Texas, over the course of 5 years from the issuance of a final rule and Letter of Authorization (LOA). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS proposes regulations setting forth permissible methods of taking, other means of effecting the least practicable adverse impact on such marine mammal stocks (i.e., mitigation measures), and requirements pertaining to monitoring and reporting such takes, and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the promulgation of the requested MMPA regulations, and NMFS' responses to public comments will be summarized in the final rule announcing our decision.

Full Text

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<title>Federal Register, Volume 91 Issue 52 (Wednesday, March 18, 2026)</title>
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[Federal Register Volume 91, Number 52 (Wednesday, March 18, 2026)]
[Proposed Rules]
[Pages 12972-12989]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-05263]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 260303-0061]
RIN 0648-BN58

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Texas Parks and Wildlife Department
Fisheries Research

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the Texas Parks and Wildlife
Department (TPWD) for authorization to take marine mammals incidental
to fisheries research in the coastal bays of Texas, over the course of
5 years from the issuance of a final rule and Letter of Authorization
(LOA). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS
proposes regulations setting forth permissible methods of taking, other
means of effecting the least practicable adverse impact on such marine
mammal stocks (i.e., mitigation measures), and requirements pertaining
to monitoring and reporting such takes, and requests comments on the
proposed regulations. NMFS will consider public comments prior to
making any final decision on the promulgation of the requested MMPA
regulations, and NMFS' responses to public comments will be summarized
in the final rule announcing our decision.

DATES: Comments and information must be received no later than April
17, 2026.

ADDRESSES: A plain language summary of this proposed rule is available
at: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2025-0141">https://www.regulations.gov/docket/NOAA-NMFS-2025-0141</a>. You may
submit comments on this document, identified by NOAA-NMFS-2025-0801, by
any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Visit <a href="https://www.regulations.gov">https://www.regulations.gov</a> and type NOAA-NMFS-2025-0801 in the Search box.
Click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments.
<bullet> Mail: Submit written comments to the Permits and
Conservation Division, Office of Protected Resources, National Marine
Fisheries Service, 1315 East-

[[Page 12973]]

West Highway, Silver Spring, MD 20910-3225.
<bullet> Fax: (301) 713-0376.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
A copy of the TPWD's application and any supporting documents, as
well as a list of the references cited in this document, may be
obtained online at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-texas-parks-and-wildlife-departments-independent-fisheries">https://www.fisheries.noaa.gov/action/incidental-take-authorization-texas-parks-and-wildlife-departments-independent-fisheries</a>.
In case of problems accessing these documents, please call the
contact listed below.

FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

This proposed rule, to be issued under the authority of the MMPA
(16 U.S.C. 1361 et seq.), establishes a framework for authorizing the
take of marine mammals incidental to fisheries-independent research
conducted by the TPWD in Texas bays and estuaries. TPWD fisheries
research has the potential to take marine mammals due to possible
physical interaction with fishing gear (i.e., gillnets). TPWD submitted
an application to NMFS requesting 5-year regulations and a letter of
authorization (LOA) to take bottlenose dolphins (Tursiops truncatus)
from seven stocks, by mortality/serious injury or injury (Level A
harassment) incidental to research activities using gillnet fishing
gear in Texas bays. The regulations would be valid for 5-years from the
effective date of the final rule.

Legal Authority for the Proposed Action

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et
seq.) directs the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' (i.e., mitigation) on the affected species or stocks and their
habitat, paying particular attention to rookeries, mating grounds and
areas of similar significance, and the availability of the species or
stocks for taking for certain subsistence uses, and must set the
requirements pertaining to the mitigation, monitoring and reporting of
the takings.
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I, provide the legal basis for proposing
and, if appropriate, issuing 5-year regulations and associated Letters
of Authorization. This proposed rule also identifies a suite of
proposed mitigation, monitoring, and reporting requirements for TPWD's
activities.

Summary of Major Provisions Within the Proposed Regulations

The following is a summary of the major provisions of this proposed
rulemaking regarding TPWD's fisheries research:
<bullet> TPWD staff and others involved in the proposed research
activities will be required to attend the Protected Species Safe
Handling, Release, and Identification Workshops prior to conducting the
fisheries research activities.
<bullet> TPWD would eliminate dolphin ``hot spot'' sampling grids
where bottlenose dolphins have been taken more than once since the
beginning of the survey or grids where multiple adjacent grids have had
at least one bottlenose dolphin encounter.
<bullet> TPWD would minimize soak time by utilizing the ``last out/
first in'' strategy for gillnets set in grids where bottlenose dolphins
have been encountered within the last 5 years.
<bullet> TPWD would set only new or fully repaired gillnets thereby
eliminating holes greater than 6 inches (in) (15 centimeter (cm))
stretched mesh.
<bullet> TWPD would set gillnets with minimal slack and a short
marker buoy attached to the deep end of the net.
<bullet> Staff would immediately respond to any net disturbance
observed while gear is soaking.
<bullet> TWPD would modify gillnets to avoid more than a 4- in (10-
cm) gap between float/lead line and net when net is set.
<bullet> TWPD would conduct dedicated marine mammal observations at
least 15 minutes prior to setting nets and avoid setting nets if
dolphins are observed at or approaching within the survey area.

Background

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) directs the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed incidental harassment authorization (IHA) is provided to the
public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (collectively referred to as
``mitigation''); and requirements pertaining to the monitoring and
reporting of the takings. The definitions of all applicable MMPA
statutory terms used above are included in the relevant sections below
and can be found in section 3 of the MMPA (16 U.S.C. 1362) and NMFS
regulations at 50 CFR 216.103.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO)

[[Page 12974]]

216-6A, NMFS must review our proposed action (i.e., the issuance of an
LOA) with respect to potential impacts on the human environment.
In accordance with the NEPA (42 U.S.C. 4321 et seq.) and NOAA
policy and procedures (NOAA Administrative Order 216-6A and its
Companion Manual), NMFS has prepared a draft environmental assessment
(EA) analyzing the potential impacts of NMFS' proposed action of
issuance of this rule and LOA(s). NMFS is seeking public comment on the
draft EA. The draft EA is available at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-texas-parks-and-wildlife-departments-independent-fisheries">https://www.fisheries.noaa.gov/action/incidental-take-authorization-texas-parks-and-wildlife-departments-independent-fisheries</a> for a 30 day public comment period.
NMFS will consider all comments submitted in response to this notice
prior to concluding the NEPA process or making a final decision on the
request for regulations and a LOA(s).

Summary of Request

On October 31, 2023, NMFS received a request from TPWD for a
rulemaking and associated 5-year LOA to take marine mammals incidental
to fisheries research activities. Following NMFS' review of the
application, TPWD submitted a revised version on March 3, 2025. NMFS
deemed TPWD's application adequate and complete on May 12, 2025. TPWD's
request is for take of bottlenose dolphins by mortality and serious
injury (M/SI) and by Level A harassment.
A notice of receipt of the application submitted by TPWD was
published in the Federal Register on May 19, 2025, with a 30-day
comment period. During the comment period NMFS received 50 comments
from members of the public regarding TPWD's application for an
incidental take authorization. Of the 50 comments received, 49 of them
expressed general support for TPWD's request. One comment was opposed
to issuing a LOA to TPWD citing that TPWD did not have a clear
description in their application of how take was estimated for each
stock of bottlenose dolphins, disagreed that TPWD's proposed gillnet
configuration would allow entangled dolphins to breathe, and concerns
that NMFS may not be able to make a negligible impact determination.
NMFS has considered these comments in the preparation of this proposed
rule.

Description of Proposed Activity

Overview

TPWD conducts a long-term standardized fishery-independent
monitoring program to assess the relative abundance and size of finfish
and shellfish in Texas bays. Results from this program are primarily
used by TPWD to manage Texas' marine finfish and shellfish resources.
Data gathered through the survey are also used by multiple other state
and federal agencies, universities, non-governmental organizations, and
the private sector. The use of gillnets during these surveys may result
in take by Level A harassment (injury) or M/SI of marine mammals.

Dates and Duration

These gillnet surveys are conducted throughout the coastal bay
system of Texas and occur in the spring and fall. The spring season
begins with the second full week in April and extends for 10 weeks. The
fall season begins with the second full week in September and extends
for 10 weeks. TPWD expects to set 780 gillnets annually within the
Texas bay system.

Specific Geographic Region

Gillnets would be used in each of the 10 major Texas bay systems:
Sabine Lake, Galveston, Cedar Lakes, East Matagorda, Matagorda, San
Antonio, Aransas, Corpus Christi, upper Laguna Madre, and lower Laguna
Madre (see figure 1). Each bay is separated into 1 minute by 1 minute
grid cells and sampling sites are chosen at random. These bays consist
of open-bay bottom (i.e., mainly sand and mud bottom) habitat which are
influenced by ocean waters through inlets. Marshes and intertidal flats
typically make up the edges of the bays and are made up of relatively
shallow water (Armstrong 1987).
BILLING CODE 3510-22-P

[[Page 12975]]

[GRAPHIC] [TIFF OMITTED] TP18MR26.001

BILLING CODE 3510-22-C

Figure 1. Project Area for the TPWD Gillnet Sampling Activities

Detailed Description of the Specified Activity

Gillnet Gear and Sampling Description
The TPWD bay gillnet finfish surveys, conducted in the spring and
fall, provide fishery-independent measures of adult and subadult
finfish relative abundance, diversity, and age and size distributions
in Texas waters. Samples collected from this survey provide data for
genetics, life history, and age and growth analyses. Seasonal sampling
helps to address seasonal differences in fish behavior, diversity, and
relative abundance in the coastal bay systems of Texas. Nets are set at
least 1 hour before sunset, soak overnight, and are retrieved within 4
hours of sunrise.
Each coastal bay is divided into 1 minute latitude by 1 minute
longitude grids (see figure 6 a-f in TPWD's application). One grid is
selected for each net to be set and that grid will only be chosen once
in a given season (i.e., spring or fall). Prior to each gillnet season,
the grids that will be sampled that season are randomly selected from
the subset of grids called gridlets. The specific sample sites are then
randomly selected from gridlets (5 second latitude by 5 second
longitude divisions, 144 per grid) that contain less than 15.2 m of
shoreline. If it is determined in the field that the randomly selected
gridlet cannot or should not be sampled, the nearest 15.2 m section
that can be safely sampled is designated as an alternate. No more than
one gillnet is set in the same grid on any night or is set more than
one time in the same grid in a season. Gillnets set on the same night
must be at least 1 kilometer (km) apart in all directions. If adjacent
grids are randomly selected and are to be sampled on the same night,
one of the grids is chosen at random and then a gridlet is selected.
The gridlet in the adjacent grid is chosen from all gridlets that are
at least 1 km from the initial selected site.
The gear configuration of the gillnets includes variable mesh sizes
to target different size fishes. This includes juvenile and mature
finfish species, which provide data on the size and age structure of
the finfish community. The data collected in the TPWD bay gillnet
sampling activities provide a fishery-independent measure of adult and
subadult finfish abundance which can be used to complement fishery-
dependent data and is used by TPWD to manage many of the coastal Texas
finfish species.
The gillnets used by TPWD are made of monofilament mesh at 1.2
meters (m)

[[Page 12976]]

in height attached to a lead line made of a braided line with a solid
core with a breaking strength of 22.7 kilograms at a length of 18.9 m.
on the bottom of the net and a float line at the top of the net with
hard plastic bullet shape floats spaced 101 cm to 114 cm apart. The
total length of a net is 182.9 m with 45.7 m sections of 7.6 cm, 10.2
cm, 12.7 cm, and 15.2 cm stretched mesh joined together with
monofilament line up the entire height of the net, with no gaps between
the different mesh sizes, to make one continuous net (see figure 2 of
TPWD's application).
The gillnets set by TPWD are set perpendicular to the shoreline
with the smaller mesh end of the net anchored to the shoreline and the
progressively larger mesh extending seaward for 182.9 m (see figures 4
and 5 of TPWD's application). When deployed the nets are pulled tight
to remove any slack while the net is fished in turn, reducing the
likelihood of marine mammal entanglement. Gear retrieval occurs at
sunrise or no later than 1 hour after sunrise and within 4 hours of
sunrise all nets are retrieved. TPWD typically fishes gillnets for 12
to 14 hours once the gillnets are set. TPWD's use of gillnets is likely
to result in incidental take of bottlenose dolphins, including M/SI.
Gulf Finfish and Shellfish Trawl Surveys
TPWD conducts Gulf Finfish and Shellfish Trawl Surveys in open
waters of the Texas Territorial Sea (state waters 0-13 (0-21 km)
nautical miles adjacent to inlets of coastal bays) in waters seaward of
the Texas shoreline to determine relative abundance, size,
distribution, and species composition of various life history stages of
fish and invertebrates.
These surveys are conducted in the same manner as the
Interjurisdictional Fisheries Act (IJA) Open Bay Shellfish Trawl
Survey, which outlines standardized gear configuration and sampling
protocols for trawl gear for shellfish sampling. The trawl
configuration is 6.1 m wide otter trawls with 38 millimeters (mm)
stretched nylon multifilament mesh throughout. Trawl doors are 1.2 m
long, and 0.5 m wide and constructed of 13 mm plywood with angle iron
framework and iron runners. Trawls would be deployed from research
vessels and towed at 4.8 km per hour (kmh), actively towed for 10
minutes, and retrieved aboard the vessel. As vessels tow the trawl gear
the vessel would travel parallel to a designated fathom curve. TPWD's
gulf trawls are identical in gear, speed, and duration as the bay
trawls. TPWD has never incidentally taken a bottlenose dolphin or any
other marine mammal during the gulf and bay trawls during the history
of the program. On average the TPWD will deploy 80 gulf trawls per
month/960 per year and 1,080 bay trawls per year. Given that there have
been no incidental takes of bottlenose dolphins or any other marine
mammal over the course of the trawl survey TPWD does not anticipate
take to occur incidental to this activity.
Oyster Reef Surveys
Oyster reef surveys are conducted by TPWD to collect data on oyster
populations in the surrounding coastal waters of Texas. Oyster dredge
samples are collected from areas in which Eastern oysters form
consolidated oyster reef/habitat and exhibit >=0.2 m (6 in) vertical
relief from adjacent bay bottom for a continuous distance of at least
91.4 m (300 ft) in length by 0.5 m (1.5 ft) in width. Sampleable reefs
must be located at a water depth of >=1 m (3 ft) during mean low tide
on current nautical charts. All known mapped oyster reefs/habitats are
included as oyster habitat strata for potential oyster dredging sites.
The coastal fisheries oyster dredge gear used by TPWD during the
oyster surveys consist of a frame and a bag. The frame, constructed
with 13-mm cold rolled steel rod, is 0.5 m wide, 0.24 m high and 1 m
long (figure 1 of TPWD's application). The bag, constructed with metal
rings, metal s-hooks and nylon rope, is 0.36 m deep with 76-mm
stretched mesh braided nylon solid core webbing (see figure 1 of TPWD's
application). The dredge is deployed from either skiffs or research
vessels, towed along the known contour of the oyster reef at 4.8 kmph
for 30 seconds, and retrieved aboard the vessel. Due to the small size
of the oyster dredges, structure, short tows, and slow speeds TPWD
considers this gear to be a very low risk for bottlenose dolphin
encounters. The oyster dredge is towed approximately 100 times per
month and 1,200 times per year.
TPWD is also conducting comparison studies using oyster tongs to
collect oyster reef data. Hydraulic tongs are 0.447 m wide by 0.532 m
deep (covering a total area of 0.238 m\2\). They are affixed to a
hydraulic winch via steel cable or winch rope. When deployed, tongs are
lowered from the side of a vessel and allowed to rest completely on the
bottom before being hydraulically closed and retrieved. NMFS does not
expect the use of the oyster dredge or the oyster tongs by TPWD to
result in the take of bottlenose dolphins or any other marine mammal.
Habitat Mapping
TPWD also utilizes bathymetric sidescan sonar and singlebeam
echosounders to characterize and map aquatic habitats, select sites for
oyster restoration, and conduct post-restoration habitat monitoring.
Habitat mapping is critical to informing resource management decisions,
allowing TPWD to evaluate how habitat distribution and health have
changed over time, and prioritize conservation and restoration efforts
to address habitat loss in certain locations.
Using sonar is critical to the success of oyster restoration
projects as it is used in both the planning and evaluation of these
projects. TPWD uses non-impulsive intermittent sonar surveying
equipment, including multi-frequency bathymetric sidescan sonar,
single-frequency singlebeam echosounders, and single-frequency split-
beam echosounders. TPWD collects bathymetric sidescan sonar data using
a dual-frequency EdgeTech 6205 units. This unit operates at both 230
and 550 kilohertz (kHz) simultaneously, has a maximum source level of
200 dB (decibels) ref 1 uPa (micro Pascale), a pulse rate of 15 seconds
and a pulse duration of 1 millisecond (ms). TPWD also uses various
recreational grade sidescan sonar units, such as Humminbird and Garmin,
for intermittent survey work for very small projects. The frequency of
these units ranges from 200 kHz to 1200 kHz. These units are used to
inform sampling locations for fisheries-independent oyster monitoring,
as well as for planning and monitoring oyster restoration projects. All
units used are in a downward-looking position with no tilt. These
sidescan sonars operate at a frequency outside the hearing range of
bottlenose dolphins (i.e., >160 kHz) and therefore, NMFS does not
expect the use of this sonar to result in take of bottlenose dolphins
or any other marine mammal.
TPWD also collects singlebeam echosounding data using Biosonics DT-
X systems with one single-beam 120 kHz echosounder and one split-beam
426 kHz echosounder. The Biosonic DT-X system has user-defined ping
rate ranging from 0.01 to 30 pings per second and is typically operated
at 10 pings per second. Pulse duration is user-selectable between 0.1
to 1.0 ms and is typically operated at 0.2 ms.
The beam pattern of the Biosonics DT-X 120 kHz is extremely narrow
(i.e., 10 degrees) and at that frequency and echosounder is oriented
downward (not obliquely) in waters with an average depth of 2.5 m, thus
ensonifying a very

[[Page 12977]]

small circular area approximately 0.5 m in diameter. The echosounder
uses a rapid duty cycle of 0.002 with pulse durations of 0.2 ms and a
pulse rate of 10 pulses per second. This results in an extremely short
duration of ensonification and reduces the effective source level (NMFS
2020). Because of the orientation, shallow water depths (<4 m), beam
pattern, and rapid duty cycle, we would only expect minimal exposures
within this frequency. A study investigating the impact of a similar
echosounder system as the one used by TPWD (a 120 kHz singlebeam
echosounder with a beam width of 7 degrees and a source level of 230
dB) found that likelihood of TTS occurs only in a small volume of water
immediately under the transducer (Boebel et al. 2005). NMFS does not
expect the take of any marine mammals incidental the use of these
echosounders during habitat mapping activities.
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of TPWD's application summarize available
information regarding status and trends, distribution and habitat
preferences, and behavior and life history of the potentially affected
species. NMFS fully considered all of this information, and we refer
the reader to these descriptions, instead of reprinting the
information. Additional information regarding population trends and
threats may be found in NMFS' Stock Assessment Reports (SARs) (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS'
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 1 lists all species or stocks for which take is expected and
proposed to be authorized for this activity and summarizes information
related to the population or stock, including regulatory status under
the MMPA and Endangered Species Act (ESA) and potential biological
removal (PBR), where known. PBR is defined by the MMPA as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population (as described in NMFS'
SARs) defined in section 3 of the MMPA (16 U.S.C. 1362(20)). Since
serious injury or mortality is anticipated to be authorized under this
action, PBR and annual M/SI from anthropogenic sources are included
here as gross indicators of the status of the species or stocks and
other threats.
To provide a background for how estuarine bottlenose dolphin stocks
are identified, we provide the following excerpt from the Bottlenose
Dolphin Stock Structure Research Plan for the Central Northern Gulf of
America (GOA) (NMFS 2007) which more specifically describes the stock
structure of bottlenose dolphins within the bays, sounds, and estuaries
of the GOA. The distinct stock status for each of the 31 inshore areas
of contiguous, enclosed, or semi-enclosed bodies of waters is
community-based. That is, stock delineation is based on the finding,
through photo-identification (photo-ID) studies, of relatively discrete
dolphin ``communities'' in the few GOA areas that have been studied
(Waring et al., 2007). This finding was then generalized to all
enclosed inshore GOA waters where bottlenose dolphins exist. A
``community'' consists of resident dolphins that regularly share large
portions of their ranges and interact with each other to a much greater
extent than with dolphins in adjacent waters. The term emphasizes
geographic and social relationships of dolphins. Bottlenose dolphin
communities do not necessarily constitute closed demographic
populations, as individuals from adjacent communities may interbreed.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic SARs. All values presented in table 1 are the most
recent available at the time of publication (including from the draft
2024 SARs) and are available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.

Table 1--Species\1\ Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA
status; Stock abundance (CV, Potential Annual M/
Common name Scientific name Stock strategic (Y/N) Nmin, most recent biological SI \4\
\2\ abundance survey) \3\ removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Odontoceti (toothed whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Bottlenose Dolphin.............. Tursiops truncatus..... Laguna Madre.......... -, -, Y 80 (1.57, UNK, 1992).. UND 0.8
Matagorda Bay, Tres -, -, Y 61 (0.45, UNK, 1992).. UND 0.4
Palacios Bay, Lavaca
Bay.
Nueces Bay, Corpus -, -, Y 58 (0.61, UNK, 1992).. UND 0.2
Christi.
Copano Bay, Aransas -, -, Y 55 (0.82, UNK, 1992).. UND 0.6
Bay, San Antonio Bay,
Redfish Bay, Espiritu
Santo Bay.
Galveston Bay, East -, -, N 842 (0.08, 787, 2016). 6.3 1
Bay, Trinity Bay.
West Bay.............. -, -, N 37 (0.05, 35, 2015)... 0.3 0
Sabine Lake........... -, -, N 122 (0.19, 104, 2017). 0.9 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region/">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region/</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. As discussed below Nmin values for the
Copano Bay/Aransas Bay/San Antonio Bay/Redfish Bay/Espiritu Santo Bay Stock, Nueces Bay/Corpus Christi Bay Stock, and the Laguna Madre Stocks have
been updated based on a photo identification survey conducted by Texas A&M University.

[[Page 12978]]

\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.

As indicated above, bottlenose dolphins (with seven managed stocks)
listed in table 1 temporally and spatially co-occur with the activity
to the degree that take is reasonably likely to occur.
Texas Bay, Sound, and Estuary (BSE) Bottlenose Dolphins
Bottlenose dolphins have been identified in seven distinct coastal
stocks within the inner estuaries of Texas (table 1). Shane (1977) and
Gruber (1981) documented year-round residency of individual common
bottlenose dolphins in some of the estuarine waters of Texas coastal
bays. Analysis of genetic data supports the fact that many of the
coastal Texas stocks are comprised of resident populations (NMFS 2021).
In general, the Texas coastal stocks only occur in discrete BSE waters.
However, it has been documented that limited mixing does occur in the
passes of the Gulf of America with other non-resident stocks (NMFS
2021).
NMFS has acknowledged that as additional information about these
BSE stocks becomes available, combination or further division of the
stocks or modification of the stock boundaries may be warranted (NMFS
2021). Population size across the seven coastal stocks in Texas is a
wide range (e.g., N 37-842).
NMFS used unpublished data provided by the Southeast Fisheries
Science Center (SEFSC) for a population estimate to update the
Matagorda Bay, Tres Palacios Bay, Lavaca Bay stock. The SEFSC conducted
stock structure research (biopsy sampling surveys) from 2012-2014.
During the biopsy sampling, photos were taken for photo-ID and 285
individual dolphins with distinct dorsal fins were identified within
this stock's boundaries (NMFS SEFSC, UNPUBLISHED DATA). This provided
an abundance estimate (N<INF>best</INF>) of 150 individuals from this
stock. The N<INF>best</INF> value of 150 individuals was used to
calculate an estimated PBR for this stock given one is not available in
the recent SARs.
Recently, the SEFSC, in collaboration with Texas A&M University
researchers, developed provisional minimum population estimates or
N<INF>mins</INF> for three of the seven stocks that had unknown
N<INF>mins</INF>; these included the Copano Bay/Aransas Bay/San Antonio
Bay/Redfish Bay/Espiritu Santo Bay Stock, Nueces Bay/Corpus Christi Bay
Stock, and the Laguna Madre Stock. The report used photo-identification
data collected by Texas A&M University of these stocks from 2018 to
2025. Individual animals were assigned to a stock based on the majority
of their sighting locations. For individuals sighted one time, data was
examined from animals seen multiple times to estimate the probability
of a given stock assignment conditional on its being seen within a
given stock area on its first observation. A transient area was defined
for the Aransas Pass and animals sighted in that area were not included
in the population estimate due to the likelihood of sighted animals
being from coastal stocks. Additional details on the methods used by
the SEFSC are in the 2025 report which is available on the NMFS website
at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-texas-parks-and-wildlife-departments-independent-fisheries">https://www.fisheries.noaa.gov/action/incidental-take-authorization-texas-parks-and-wildlife-departments-independent-fisheries</a>.
NMFS then used these updated N<INF>min</INF> values to calculate
PBR values for the three stocks (Garrison 2025). The PBR formula NMFS
used to calculate PBR is (N<INF>min</INF> * 0.5R<INF>max</INF> *
F<INF>r</INF>) where R<INF>max</INF> is the maximum net productivity
rate and the F<INF>r</INF> is the recovery factor. The R<INF>max</INF>
and the F<INF>r</INF> values for bottlenose dolphins are available in
table 1 of the draft 2024 SARs. The data used for each stock and
resultant PBR is shown in table 2.
The stocks for which NMFS proposes to authorize take associated
with the TPWD's gillnet fisheries research are grouped in the GOA BSE
SAR. As discussed above, NMFS received data from Texas A&M researchers
and consulted with the SEFSC to develop updated N<INF>min</INF>
estimates for the Copano Bay/Aransas Bay/San Antonio Bay/Redfish Bay/
Espiritu Santo Bay stock, Nueces Bay/Corpus Christi Bay stock, and the
Laguna Madre stock. Further, information was available from the SEFSC
for the Matagorda Bay/Tres Palacios Bay/Lavaca Bay stock that informed
population estimates. For the remaining stocks NMFS is proposing to use
the information from the SARs for M/SI and N<INF>min</INF> values.

Table 2--Calculated PBR Values for Three Stocks of Texas BSE Bottlenose Dolphins
----------------------------------------------------------------------------------------------------------------
Nmin (Garrison
Stock 2025) Rmax Fr PBR
----------------------------------------------------------------------------------------------------------------
Copano Bay, Aransas Bay, San Antonio Bay, Redfish Bay, 669 0.04 0.4 5
Espiritu Santo Bay...................................
Nueces Bay, Corpus Christi............................ 1,744 0.04 0.4 14
Laguna Madre.......................................... 222 0.04 0.4 2
----------------------------------------------------------------------------------------------------------------

NMFS considered take by M/SI relative to residual PBR (i.e., the
PBR value subtracted from the estimate of ongoing anthropogenic M/SI).
NMFS gathered information on reported serious injury determinations
from Maze-Foley and Garrison (2024) and reported mortalities from the
Marine Mammal Stranding Database (excluding those that have occurred
during the proposed TPWD surveys) to estimate annual rates of M/SI
(table 7) (see the Negligible Impact Determination section for
additional description of residual PBR and how it is calculated). NMFS
identified five mortalities and 10 serious injuries over the 2019 to
2023 time period as analyzed in Maze-Foley and Garrison (2024) (the
most recent information available). Three of the five mortalities were
from hook and line fishing gear, two of which were from the Copano Bay/
Aransas Bay/San Antonio Bay/Redfish Bay/Espiritu Santo Bay and the
remaining one from the Nueces Bay/Corpus Christi Bay stocks. The other
two mortalities were determined to be from vessel strikes and were from
the Nueces Bay/Corpus Christi Bay and Galveston Bay/East Bay/Trinity
Bay stocks. Of the 10 serious injuries five were from the Galveston
Bay/East Bay/Trinity Bay stock from hook and line gear, trap pot gear,
and entanglements with unidentified fishing gear. Illegal gillnet gear
entanglements and a vessel strike resulted in three serious injuries of
the Laguna Madre stock. The remaining two serious injuries were from
entanglements in unknown trap/pot gear from the Copano Bay/Aransas Bay/
San Antonio Bay/Redfish Bay/Espiritu Santo Bay stock and a vessel
strike of the Nueces Bay/Corpus Christi Bay stock.

[[Page 12979]]

NMFS has updated the M/SI estimates for all of the stocks where
take is proposed. The M/SI data presented in the most recent SARs
update for these BSE stocks was from 2015-2019. During the development
of this proposed rule NMFS reviewed M/SI data from Maze-Foley and
Garrison (2024) and the Marine Mammal Stranding Database which included
data from 2019-2023. These data updated the annual M/SI estimates for
all BSE stocks of bottlenose dolphins as shown in table 7 and are
different from what is presented in the most recent update to the
bottlenose dolphin BSE SARs report (see Negligible Impact
Determination). This data represents the best available data for
estimating the annual M/SI values for these stocks, including
correcting an error for the Galveston Bay, East Bay, Trinity Bay stock
where two serious injuries were assigned to the wrong stock incorrectly
in Maze-Foley and Garrison (2024).
Unusual Mortality Events (UME)--The marine mammal UME program was
established in 1991. A UME is defined under the MMPA as a stranding
that is unexpected; involves a significant die-off of any marine mammal
population; and demands immediate response. From 1992 through 2012,
five UME events have occurred for Texas bottlenose dolphins and each
has been closed. Three of the five UME causes were undetermined and the
remaining two were caused by infectious diseases and biotoxins. More
information related to UMEs is available on the NMFS website at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events</a>.
Biological Important Areas (BIAs)--In 2015, NOAA's Cetacean Density
and Distribution Mapping Working Group identified BIAs for 24 cetacean
species, stocks, or populations in 7 regions within U.S. waters,
including the GOA. For BSE bottlenose dolphin stocks in the GOA the
BIAs are areas in which small and resident populations are
concentrated. BIAs are region-, species-, and time-specific.
Small and Resident Population: Areas and months within which small
and resident populations occupying a limited geographic extent exist.
The delineation of BIAs does not have direct or immediate
regulatory consequences. Rather, the BIA assessment is intended to
provide the best available science to help inform regulatory and
management decisions under existing authorities about some, though not
all, important cetacean areas in order to minimize the impacts of
anthropogenic activities on cetaceans and to achieve conservation and
protection goals. In addition, the BIAs and associated information may
be used to identify information gaps and prioritize future research and
modeling efforts to better understand cetaceans, their habitat, and
ecosystems. Table 3 provides a list of BIAs for bottlenose dolphins
found within the TPWD's fisheries research areas.

Table 3--BIAs Within the TPWD Fisheries Research Area
----------------------------------------------------------------------------------------------------------------
Size kilometers
BIA name BIA Time of year (km\2\)
----------------------------------------------------------------------------------------------------------------
Galveston Bay.......................... Small and Resident....... Year-round............... 1,222
San Luis Pass.......................... Small and Resident....... Year-round............... 143
Matagorda Bay and Espiritu Santo Bay... Small and Resident....... Year-round............... 740
Aransas Pass........................... Small and Resident....... Year-round............... 273
----------------------------------------------------------------------------------------------------------------

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take of Marine Mammals section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The Negligible Impact Analysis
and Determination section considers the content of this section, the
Estimated Take of Marine Mammals section, and the Proposed Mitigation
section, to draw conclusions regarding the likely impacts of these
activities on the reproductive success or survivorship of individuals
and whether those impacts are reasonably expected to, or reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.

Gear Interaction

As noted in the Detailed Description of the Proposed Activity
section of this document, gillnet gear is the only gear used by TPWD
that is expected to result in take of bottlenose dolphins. All other
gears are not expected to have effects on marine mammals.
The gillnets used by the TPWD are similar to those used in gillnet
fisheries throughout the GOA and the Atlantic. Read et al. (2006)
estimated marine mammal bycatch in U.S. fisheries from 1990 to -99 and
derived an estimate of global marine mammal bycatch by expanding U.S.
bycatch estimates using data on fleet composition from the United
Nations Food and Agriculture Organization. Most U.S. fisheries bycatch
for cetaceans (84 percent) occurred in gillnets. Interactions and
entanglements with gillnets may result in take by M/SI or at the very
least injury (Level A harassment) for bottlenose dolphins (Read et al.,
2006).
From 2019 through 2023, 243 commercial gillnet sets from the
Atlantic coast of Florida throughout the GOA were observed by observers
from the SEFSC. Effort has steadily declined in the strike gillnet
fishery for king mackerel (Scomberomorus cavalla) and in the sink and
drift gillnet fishery for Spanish mackerel (Scomberomorus maculatus) in
the Atlantic and GOA. Incidental take of protected species, such as sea
turtles and marine mammals, remained a low occurrence. A total of three
protected species interacted with gillnets over the 5-year period,
including one loggerhead sea turtle, one smalltooth sawfish, and one
bottlenose dolphin and all were released alive (NMFS 2024).
TPWD has a history of taking bottlenose dolphins incidental to
their gillnet research in the coastal bays of Texas. From 1983 through
2024, TPWD has set 31,386 gillnets throughout their sampling areas in
the coastal bays of Texas. Over the 41 years of the survey TPWD has
recorded 44 encounters with bottlenose dolphins with gillnet gear. NMFS
began making injury determinations in 2007 for marine mammal injury
events including entanglements with TPWD gillnet gear as reported to
NMFS (77 FR 3233, January 23, 2012). Of the 44 dolphin encounters
recorded by TPWD, 6 have been mortalities, 6 have been determined to be
serious injuries, 10 were determined to be non-serious injuries (Level
A harassment), 3 have not yet been determined or could not be
determined, and the remaining 19

[[Page 12980]]

encounters with dolphins have an unknown disposition.

Potential Effects on Marine Mammal Habitat

Effects on Prey--Gillnet sampling is designed to monitor finfish
populations and some of these finfish species could be potential prey
for bottlenose dolphins in the area. Habitat use by bottlenose dolphins
is greatly dependent on prey availability. McDaniel (2022) grouped
bottlenose dolphin prey species in Galveston Bay in order of importance
based on their highest proportion consumed. White mullet (Mugil curema)
was the highest proportion of prey species consumed at 25.3 percent of
the overall diet of bottlenose dolphins. The second highest proportion
of prey consumed by bottlenose dolphins in Galveston Bay was a group of
species including Atlantic brief squid (Lolliguncula brevis), hardhead
catfish (Ariopsis felis), and striped mullet (Mugil cephalus) at 21.0
percent. Recent analysis of fishery independent data collected by trawl
and gillnets throughout the Texas coast indicate increasing abundance
trends for striped mullet and Atlantic brief squid which indicate that
gillnet sampling is not having a negative impact on these prey species
for bottlenose dolphins (Williford and Anderson 2024). Gillnet sampling
conducted by TPWD is limited in scope as compared with the overall
available bay regions dolphins have to pursue prey species. The small
number of prey species removed from the water during these gillnet sets
are not expected to affect the availability of prey species for
bottlenose dolphins in the coastal bays of Texas.
Physical Habitat--The use of gillnets by TPWD would be fished in
habitat that is used by BSE stocks of bottlenose dolphins. Habitat used
by these stocks of bottlenose dolphins ranges from shallow seagrass
beds to dredged and natural channels and spoil island (Shane 1990;
Scott et al., 1996; Barros 1993; Allen et al., 2000). Overall, the
available data proposes that the range of diverse habitat used by
bottlenose dolphins is influenced by foraging activity, seasonal
shifts, and other behaviors such as socializing, traveling and resting.
TPWD does not set nets across the mouth of any inlets or channels
during their sampling. Gillnets are primarily set in shallow waters
with most of the gear either floating at the surface or suspended in
the water column. The only part of the gillnet that makes contact with
the sea floor is the lead line which is less than 1.27 cm in width and
182.9 m in length. This represents a very small area (2.4 m\2\) when
compared to the available habitat of bottlenose dolphins within the
Texas bay systems. Anchors similar to the size of boat anchors are
deployed to keep the net in place. The deployment and retrieval of the
nets are completed by hand to avoid any disturbance to sea grass in the
area.
As described above, the potential for TPWD's gillnet research to
affect the availability of prey to marine mammals or to meaningfully
impact the quality of physical habitat is considered to be
insignificant for bottlenose dolphins. Effects on habitat will not be
discussed further in this document.

Estimated Take of Marine Mammals

This section provides an estimate of the number of incidental takes
proposed for authorization under the rule, which will inform NMFS'
consideration of ``small numbers,'' the negligible impact
determinations, and impacts on subsistence uses. When discussing take,
we consider three manners of take: mortality, serious injury, and non-
serious injury (Level A harassment). Serious injury is defined as an
injury that could lead to mortality while injury refers to an injury
that could not lead to mortality. Except with respect to certain
activities not pertinent here, the MMPA defines ``harassment'' as any
act of pursuit, torment, or annoyance which (i) has the potential to
injure a marine mammal or marine mammal stock in the wild (Level A
harassment); or (ii) has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing, nursing,
breeding, feeding, or sheltering (Level B harassment). No takes by
Level B harassment are expected from TPWD's activities.
TPWD has a history of taking marine mammals incidental to their
fisheries research using gillnet gear. The take resulting from gear
interaction can range from mortality, serious injury, and Level A
harassment (injury). TPWD has predicted the number of takes that would
occur over the 5-year period of the rulemaking based on past encounters
within the established stock boundaries of each Texas BSE bottlenose
dolphin stock where take is expected. Each of these stocks has a
respective survey block number (e.g., B50) (also see figure 1) and TPWD
further refined the survey blocks with 1 minute latitude by 1 minute
longitude blocks where gillnets would be set (see figure 6a-f of TPWD's
application). TPWD used a catch to effort calculation to estimate their
expected annual take numbers.
In estimating take, TPWD used historical interactions data with
bottlenose dolphins from 1983-2024 (table 4). Using this data, TPWD
evaluated 5-year rolling averages for each survey block deriving the
average number of encounters over each set of 5-years between 1983-
2024. For example, in block 50 from 1983 through 2024, two rolling 5-
year time periods had five encounters and one period had six. For this
particular block, TPWD selected five encounters as the appropriate 5-
year rolling total because it had the higher occurrence (twice between
1983-2024). TPWD chose the lower 5-year rolling total for this block
since there was a high probability of that level of take occurring
during the effective period of the requested LOA. For each of the
blocks with interactions 5-year rolling totals were developed. TPWD
then selected the highest recurring 5-year rolling totals for their
estimated take levels (table 5). TPWD used these totals to inform their
take request over the 5-year period of this proposed rule for each
block with interactions of bottlenose dolphins (see Figure 1 for
depiction of blocks relative to the different bays).

Table 4--TPWD's Historical Interactions With Bottlenose Dolphins From
1983 Through 2024
------------------------------------------------------------------------
Number of
Blocks with interactions interactions
------------------------------------------------------------------------
B50..................................................... 19
B51..................................................... 8
B52..................................................... 8
B54..................................................... 9
------------------------------------------------------------------------

Table 5--TPWD's 5-Year Highest Occurring Rolling Totals Per Block
----------------------------------------------------------------------------------------------------------------
B50 B51 B52 B54
----------------------------------------------------------------------------------------------------------------
Number of Interactions........ 5................ 3.................. 3.................. 3
Years......................... 1998-2002; 2012- 1989-1993.......... 1996-2000.......... 2019-2024
2016.
----------------------------------------------------------------------------------------------------------------

[[Page 12981]]

In order for TPWD to assign the appropriate levels of take as M/SI
or Level A harassment from the 5-year averages, TPWD calculated the
expected percentages of those dispositions on an annual basis. To
calculate those percentages TPWD used catch and effort from each block
in the steps below.
<bullet> TPWD first assigned the bottlenose dolphins with an
unknown disposition (either mortality or released alive) based on the
proportion of encounters with known dispositions in the same given
survey block. Based on these proportions the number of unknowns in each
survey block were assigned to either a released alive or mortality
determination.
<bullet> TPWD then calculated the expected number of bottlenose
dolphin mortalities and individuals released alive per set for each
block including the newly assigned unknown dolphins from the preceding
step.
<bullet> TPWD then used serious injury determinations (either
serious or non-serious) provided by NMFS for each of their dolphin
encounters with gillnets, to calculate the expected number of non-
serious injuries and serious injuries from the expected number of
dolphins to be released alive per set.
<bullet> TPWD multiplied the expected number of dolphins to be
released alive by the proportions of serious injury to total injury
determinations and the proportion of non-serious injury determinations
to total injury determinations to calculate the expected number of
injuries and serious injuries per set.
<bullet> To determine the expected number of M/SI encounters per
year, TPWD added the calculated number of mortalities and serious
injuries per set from the steps above and then multiplied that number
by the number of sets per year in the given survey block.
<bullet> A similar calculation was completed to determine the
number of expected non-serious injuries per year.
A detailed example of the catch and effort calculation steps is
available in Appendix 5 of TPWD's application for block 50, the Copano
Bay/Aransas Bay/San Antonio Bay/Redfish Bay/Espiritu Santo Bay stock.
Once the expected annual take numbers by Level A harassment
(injuries) and M/SI was calculated for each block, TPWD calculated the
percentages of expected take by Level A harassment and take by M/SI on
an annual basis. In the final step, TPWD used the annual percentages
and multiplied them by the 5-year rolling totals as described above for
each block (table 5) to assign the appropriate levels of take by Level
A harassment and M/SI from a given 5-year rolling total.
TPWD has not had any encounters in West Bay (block 55), Galveston
Bay/East Bay/Trinity Bay (block 56), and Sabine Lake (block 57). For
these blocks TPWD requested one take by M/SI and one take by injury
over the course of the 5-year period of this proposed rule. TPWD
elected to request take for these blocks because there is a potential
for interactions with bottlenose dolphins from stocks in these areas.
NMFS agrees with the calculations proposed by TPWD and is proposing
to authorize the amount of take outlined in table 6.

Table 6--Proposed Total Take by Stock Annual and Over the 5-Year Regulations for TPWD Gillnet Fisheries Research
----------------------------------------------------------------------------------------------------------------
Total take by injury Total take by M/
Stock (Level A harassment) SI over the 5- Total take over
over the 5-years years the 5-years
----------------------------------------------------------------------------------------------------------------
Copano Bay/Aransas Bay/San Antonio Bay/Redfish Bay/ 2 3 5
Espiritu Santo Bay...............................
Laguna Madre...................................... 1 2 3
Nueces Bay/Corpus Christi Bay..................... 1 2 3
Matagorda Bay/Tres Palacios Bay/Lavaca Bay........ 1 2 3
West Bay.......................................... 1 1 2
Galveston Bay/East Bay/Trinity Bay................ 1 1 2
Sabine Lake....................................... 1 1 2
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation

In order to issue an LOA under section 101(a)(5)(A) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds and areas of similar significance, and on the
availability of the species or stock for taking for certain subsistence
uses (the last consideration not being applicable for this action).
NMFS regulations require applicants for incidental take authorizations
to include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (e.g., likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented (i.e.,
probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
TPWD would implement a number of measures that could reduce the
likelihood of an entanglement of a bottlenose dolphin during the use of
gillnet gear during their research.

Gillnet Gear Measures

<bullet> Only new or fully repaired gillnets are used thereby
eliminating any hole size greater than 6 in (15 cm) stretched mesh.
<bullet> 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 in (10 cm) along the float and lead line to reduce
entanglements.

[[Page 12982]]

<bullet> TPWD must set gillnets to ensure each gillnet is set as
tight as possible from the surface to the seafloor and have marker
buoys attached with ropes to the junctures of each mesh size and the
end of the net as short as possible.

Gillnet Sampling Measures

<bullet> If any bottlenose dolphins are present deployment of
gillnets would not occur until all of the dolphins have left the area.
<bullet> If bottlenose dolphins enter the area while a gillnet is
being set, the lead line would be raised and lowered repeatedly to
encourage the animals to leave the site. If bottlenose dolphins remain
in the area, the gillnet would hauled back onto the vessel, and an
alternative site is selected.
<bullet> 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 remaining on the animal as possible. Animals must be
released without removing them from the water.
<bullet> TPWD has eliminated sampling sites where bottlenose
dolphins have been encountered more than once in a single grid or sites
where multiple adjacent grids have had at least one dolphin encounter.
These grids include: Aransas Bay grids 280, 290, 291, 300, 301, and 308
(figure 6c in TPWD application); Corpus Christi Bay grids 8, 20, and
132 (figure 6b in TPWD application); and Lower Laguna Madre grids 47,
318, and 319 (figure 6a in TPWD application).
<bullet> At sites where marine mammals have been encountered within
the last 5-years, gillnet soak time is minimized by utilizing the
``last out/first in'' strategy. A net set in this manner will be
deployed last for the day and retrieved first on the next day which may
reduce soak times by as much as 6.6 hours. This procedure would be
implemented in six sampling grids.
Based on our evaluation of the applicant's proposed measures, NMFS
has preliminarily determined that the proposed mitigation measures
provide the means of effecting the least practicable impact on the
affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.

Proposed Monitoring and Reporting

Section 101(a)(5)(A) of the MMPA states that NMFS must set forth
requirements pertaining to the monitoring and reporting of such taking.
The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate
that requests for authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present while conducting the activities. Effective reporting is
critical both to compliance as well as ensuring that sufficient
information about the action and its proposed effects on marine mammals
and their habitat is collected.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
<bullet> Mitigation and monitoring effectiveness.

Staff Training

<bullet> TPWD staff would be required to attend Safe Handling,
Release, and Identification Workshops. TPWD would also ensure that at
least one staff member on every gillnet sampling trip has had the
training.
<bullet> Staff meetings are held prior to the start of each gillnet
season to go over ``Special Instructions for Handling Bottlenose
Dolphins'' in the TPWD Marine Resource Monitoring Operations Manual
(appendix 6 of TPWD's application) including scanning for the presence
of dolphins prior to gillnet sets, scanning nets for entanglements, and
what to do if there is an entanglement.

Visual Monitoring by Staff

<bullet> When approaching a gillnet site, TPWD staff that are
setting the net will slow the vessel and bring it off plane between 600
and 1,000 ft (183 and 305 m) from the shoreline. 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.
<bullet> Should a bottlenose dolphin be observed during the 15-
minute observation period at the site, the net would not be deployed.
The net may only be deployed if the bottlenose dolphins are observed
swimming on a path away from the site consistently for 15 minutes or
are not re-sighted within 15 minutes.

Reporting

TPWD currently reports marine mammal entanglements to NMFS
Southeast Regional Office (SERO). The proposed regulations would
standardize a comprehensive reporting scheme and require TPWD to report
all incidents of marine mammal interaction to the Office of Protected
Resources (OPR) and NMFS SERO within 48 hours of occurrence. TPWD
should also provide any supplemental information to OPR and SERO upon
request. Information related to marine mammal interaction (e.g., animal
captured or entangled in research gear) must include the following:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Description of the incident including, but not limited to,
monitoring prior to and occurring at time of incident;
<bullet> Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility);
<bullet> Description of the animal(s) involved (e.g., size, age
class);
<bullet> Water depth and net location where entangled;
<bullet> Nature of the entanglement (i.e., part(s) of the animal(s)
entangled, where in the net it was entangled);
<bullet> Fate of the animal(s);
<bullet> Detailed description of events, including how the
animal(s) was disentangled and its behavior upon release, including
signs of injury (if alive); and
<bullet> Photographs or video footage of the animal(s).
TPWD would also be required to submit an annual report to OPR no
later than 90 days following the end of the fall sampling season. TPWD
would provide a final report within 30 days following resolution of
comments on the

[[Page 12983]]

draft report. These reports shall contain, at minimum, the following:
<bullet> Locations and time/date of all net sets;
<bullet> All instances of marine mammal observations and
descriptions of any mitigation procedures implemented or not
implemented and why;
<bullet> 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
<bullet> A summary of all relevant marine mammal training and any
coordination with OPR.

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, and specific consideration of take
by M/SI previously authorized for other NMFS research activities).
The MMPA requires that PBR be estimated in SARs and that it be used
in applications related to the management of take incidental to
commercial fisheries (i.e., the take reduction planning process
described in section 118 of the MMPA and the determination of whether a
stock is ``strategic'' as defined in section 3 of the MMPA). While
nothing in the statute requires the application of PBR outside the
management of commercial fisheries interactions with marine mammals,
NMFS recognizes that as a quantitative metric, PBR may be useful as a
consideration when evaluating the impacts of other human-caused
activities on marine mammal stocks. Outside the commercial fishing
context, and in consideration of all known human-caused mortality, PBR
can help inform the potential effects of M/SI requested to be
authorized under section 101(a)(5)(A) of the MMPA. As noted by NMFS and
the U.S. Fish and Wildlife Service in our implementing regulations for
the 1986 amendments to the MMPA (54 FR 40341, September 29, 1989), the
Services consider many factors, when available, in making a negligible
impact determination, including, but not limited to: (1) the status of
the species or stock relative to optimum sustainable population (OSP)
(if known); (2) whether the recruitment rate for the species or stock
is increasing, decreasing, stable, or unknown; (3) the size and
distribution of the population; and (4) existing impacts and
environmental conditions. In this multi-factor analysis, PBR can be a
useful indicator for when, and to what extent, the agency should take
an especially close look at the circumstances associated with the
potential mortality of the proposed action, along with any other
factors that could influence annual rates of recruitment or survival.
PBR is defined in Section 3 of the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
OSP and, although not controlling, can be one measure considered among
other factors when evaluating the effects of M/SI on a marine mammal
species or stock during the section 101(a)(5)(A) process. OSP is
defined in section 3 of the MMPA as the number of animals which will
result in the maximum productivity of the population or the species,
keeping in mind the carrying capacity of the habitat and the health of
the ecosystem of which they form a constituent element. A primary goal
of the MMPA is to ensure that each species or stock of marine mammal is
maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal
from a stock that will allow that stock to equilibrate within OSP at
least 95 percent of the time and is the product of factors relating to
the minimum population estimate of the stock (N<INF>min</INF>); the
productivity rate of the stock at a small population size; and a
recovery factor. Determination of appropriate values for these three
elements incorporates significant precaution, such that application of
the parameter to the management of marine mammal stocks may be
reasonably certain to achieve the goals of the MMPA. For example,
calculation of the minimum population estimate (N<INF>min</INF>)
incorporates the precision and variability associated with abundance
information, while also providing (typically the 20th percentile of a
log-normal distribution of the population estimate) reasonable
assurance that the stock size is equal to or greater than the estimate
(Barlow et al., 1995). In general, the three factors are developed on a
stock-specific basis in consideration of one another in order to
produce conservative PBR values that appropriately account for both
imprecision that may be estimated as well as potential bias stemming
from lack of knowledge of a particular stock (Wade 1998).
When considering PBR during evaluation of effects of M/SI under
MMPA section 101(a)(5)(A), we utilize a two-tiered analysis for each
stock for which M/SI is proposed for authorization.
We first compare the total human-caused average annual M/SI
estimate from all sources, including the M/SI proposed for
authorization from the specific activity, to PBR. If the total M/SI
estimate is less than or equal to PBR, then the specific activity is
considered to have a negligible impact on that stock. The goal of the
assessment is to determine whether total annual human-caused mortality,
including from the specified activity, would exceed PBR. To aid in the
evaluation and get a clearer picture of the amount of annual M/SI that
remains without exceeding PBR, for each species or stock, we first
calculate a ``residual PBR,'' which equals PBR minus the ongoing annual
human-caused M/SI (i.e., Residual PBR = PBR--(best available annual M/
SI estimate + other M/SI authorized under section 101(a)(5)(A) of the
MMPA (where relevant))). If the ongoing human-caused M/SI from other
sources does not exceed PBR (i.e., the residual PBR is a positive
number), we consider how the proposed authorized incidental M/SI from
the specified activities being evaluated compares to residual PBR using
the framework in the following paragraph. If the ongoing anthropogenic

[[Page 12984]]

mortality from other sources already exceeds PBR (i.e., the residual
PBR is a negative number), we conduct additional analysis (described
below as ``Tier 2'' analysis).
To reiterate, if the M/SI from the specified activity does not
exceed PBR, the impacts of the authorized M/SI on the species or stock
are generally considered to be negligible. As a simplifying analytical
tool in the evaluation, we first consider whether the M/SI from the
specified activities could cause incidental M/SI that is less than 10
percent of residual PBR, which we consider an ``insignificance
threshold.'' If so, we consider M/SI from the specified activities to
represent an insignificant incremental increase in ongoing
anthropogenic M/SI for the marine mammal stock in question that alone
will clearly not adversely affect annual rates of recruitment and
survival and for which additional analysis or discussion of the
anticipated M/SI is not required because the negligible impact standard
clearly will not be exceeded on that basis alone.
When the M/SI from the specified activity is above the
insignificance threshold, it does not indicate that the M/SI associated
with the specified activities is necessarily approaching a level that
would exceed negligible impact. Rather, it is used as a cue to look
more closely at if and when the M/SI for the specified activity
approaches residual PBR (i.e., the closer the M/SI from the specified
activity is to 100 percent residual PBR). In that case, it becomes
increasingly necessary to carefully consider whether there are other
factors that could affect reproduction or survival (e.g., take by Level
A and/or Level B harassment that has been predicted to impact
reproduction or survival of individuals) or whether any other
considerations should be taken into account (e.g., as information that
illustrates high uncertainty involved in the calculation of PBR for
some stocks).
Recognizing that the impacts of harassment of any authorized
incidental take (by Level A or Level B harassment from the specified
activities) would not combine with the effects of the authorized M/SI
to adversely affect the stock through effects on recruitment or
survival, if the proposed authorized M/SI for the specified activity is
less than residual PBR, the M/SI, alone, would be considered to have a
negligible impact on the species or stock. In cases where the Tier 2
analysis is necessary (i.e., total M/SI including the amount estimated
to occur incidental to the specific activity exceeds PBR), we again
evaluate the estimated M/SI from the specified activity relative to the
stock's PBR. If the M/SI from the specified activity is less than or
equal to 10 percent of PBR and other major sources of human-caused
mortality have mitigation in place, then the individual specified
activity is considered to have a negligible impact on that stock. If
the estimate exceeds 10 percent of PBR, then, absent other mitigating
factors, the specified activity could be considered likely to have a
non-negligible impact on that stock and additional analysis is
necessary. As shown below, no Tier 2 analysis is necessary here for any
of the stocks where take is proposed.
Overall, we reiterate that PBR is a conservative metric and not
sufficiently precise to serve as an absolute predictor of population
effects upon which mortality caps would appropriately be based. For
example, in some cases stock abundance (which is one of three key
inputs into the PBR calculation) is underestimated, which could result
in an underestimate of PBR. Alternatively, we sometimes may not have
complete M/SI data to compare to PBR, which could result in an
overestimate of residual PBR. The accuracy and certainty around the
data that feed any PBR calculation, such as the abundance estimates,
must be carefully considered to evaluate whether the calculated PBR
accurately reflects the circumstances of the particular stock. PBR is
helpful in informing the analysis of the effects of mortality on a
species or stock because it is important from a biological perspective
to be able to consider how the total mortality in a given year may
affect the population. However, section 101(a)(5)(A)(i)(I) of the MMPA
indicates that NMFS shall authorize the requested incidental take from
a specified activity if we find that the total of such taking (i.e.,
from the specified activity) will have a negligible impact on such
species or stock. In other words, the task under the statute is to
evaluate the applicant's anticipated take in relation to their take's
impact on the species or stock, not other entities' impacts on the
species or stock. Neither the MMPA nor NMFS' implementing regulations
call for consideration of other unrelated activities and their impacts
on the species or stock.
We note that on June 17, 2020, NMFS finalized new Criteria for
Determining Negligible Impact under MMPA section 101(a)(5)(E). The
guidance explicitly notes the differences in the negligible impact
determinations required under paragraph 101(a)(5)(E), as compared to
paragraphs (a)(5)(A) and (D) of section 101, and specifies that the
procedure in that document is limited to how the agency conducts
negligible impact analyses for commercial fisheries under section
101(a)(5)(E). In this rule, NMFS has described its method for
considering PBR to evaluate the effects of potential mortality in the
negligible impact analysis. NMFS has reviewed the 2020 guidance and
determined that our consideration of PBR in the evaluation of mortality
as described above and in the rule remains appropriate for use in the
negligible impact analysis for TPWD's activities under section
101(a)(5)(A). Our evaluation of the M/SI for each of the stocks
follows.
We first consider maximum potential incidental M/SI from the
gillnet analysis for the affected stocks of bottlenose dolphin (table
5) in consideration of NMFS' threshold for identifying insignificant M/
SI take. By considering the maximum potential incidental M/SI in
relation to PBR and ongoing sources of anthropogenic mortality, as
described above, we begin our evaluation of whether the potential
incremental addition of M/SI through gillnet interactions may affect
the stocks' annual rates of recruitment or survival. We also consider
the interaction of those mortalities with incidental taking of that
stock by Level A harassment pursuant to the specified activity.

Table 7--Summary Information of Estuarine Bottlenose Dolphin Stocks Related to TPWD Gillnet Fishery Surveys
----------------------------------------------------------------------------------------------------------------
Proposed M/ Residual Proposed
Stock SI take PBR Estimated PBR (r-PBR) take/r-PBR
(annual) annual M/SI \1\ (%)
----------------------------------------------------------------------------------------------------------------
Laguna Madre.................................. 0.4 2 0.6 1.4 28.6
Nueces Bay/Corpus Christi Bay................. 0.4 14 0.6 13.4 3.0
Copano Bay/Aransas Bay/San Antonio Bay/Redfish 0.6 5 0.6 4.4 13.6
Bay/Espiritu Santo Bay.......................

[[Page 12985]]

Matagorda Bay/Tres Palacios Bay/Lavaca Bay.... 0.4 1.3 0 1.3 30.8
Galveston Bay/East Bay/Trinity Bay............ 0.2 6.3 \2\ 1.2 5.1 3.9
West Bay...................................... 0.2 0.3 0 0.3 66.6
Sabine Lake................................... 0.2 0.9 0 0.9 22.2
----------------------------------------------------------------------------------------------------------------
\1\ Residual PBR (r-PBR) = PBR-annual M/SI. No other M/SI is authorized for Texas BSE dolphin stocks.
\2\ The estimated annual M/SI for the Galveston Bay, East Bay, Trinity Bay stock includes two additional serious
injuries that were assigned to the wrong stock incorrectly in Maze-Foley and Garrison (2024). The annual M/SI
estimate includes those additional serious injuries here.

As described above, NMFS' M/SI analytical approach may include two
tiers, as applicable. Specifically, we first address stocks for which
total known human-caused M/SI is below PBR (i.e., the M/SI from the
specified activity is below residual PBR)), considering those with
proposed M/SI both below and above the insignificance threshold. Then,
if applicable, we discuss stocks for which total mortality exceeds PBR
in a Tier 2 analysis in which we compare the proposed M/SI of the
specified activity alone against PBR and consider other factors as
necessary.
In this case, total M/SI, including the take proposed here for
authorization, is below PBR, indicating that the incremental addition
of the take by M/SI anticipated to occur as a result of TPWD's survey
activities would not alone result in greater than a negligible impact.
The proposed take does not exceed the insignificance threshold (10
percent r-PBR) for the Nueces Bay/Corpus Christi Bay and Galveston Bay/
East Bay/Trinity Bay stocks, and we do not further discuss the
estimated M/SI take for those stocks. As noted above, for a species or
stock with authorized M/SI less than 10 percent of residual PBR, we
consider M/SI from the specified activities to represent a clearly
insignificant incremental increase in ongoing anthropogenic M/SI that
alone (i.e., in the absence of any other take and barring any other
unusual circumstances) will clearly not adversely affect annual rates
of recruitment and survival.
For the remaining stocks, the estimated take exceeds the
insignificance threshold (while remaining below total r-PBR). As
described above, if the total M/SI estimate is less than or equal to
PBR, which is the case here, then the specified activity is considered
to have a negligible impact on that stock. Although the M/SI from takes
authorized here for the specified activity is above the insignificance
threshold, as described above, that does not indicate that the M/SI
associated with the specified activities is necessarily approaching a
level that would exceed negligible impact. Rather, it is used as a cue
to look more closely if and when the M/SI for the specified activity
approaches residual PBR, as it becomes increasingly necessary (the
closer the M/SI from the specified activity is to 100 percent residual
PBR) to carefully consider whether there are other factors that could
affect reproduction or survival. Here, the M/SI is not closely
approaching residual PBR (ranging from 14-67 percent of r-PBR) and
there are no other factors that would suggest that the authorized
mortality (alone) would have more than a negligible impact on this
stock. For three stocks (Matagorda Bay/Tres Palacios Bay/Lavaca Bay,
West Bay, and Sabine Lake), there is no other known source of M/SI
according to Maze-Foley and Garrison (2024) and the Marine Mammal
Stranding Database. The Laguna Madre and Copano Bay/Aransas Bay/San
Antonio Bay/Redfish Bay/Espiritu Santo Bay have all experienced some M/
SI from other sources over the past 5 years. However, the driving
factor behind the higher percentages of r-PBR is the small stock size
which results in a low PBR, meaning that rare, isolated instances of M/
SI can result in a low r-PBR. However, there is no sustained pattern of
ongoing annual anthropogenic mortality for any of these stocks that
would indicate cause for concern in relation to the take by M/SI that
is estimated to occur as a result of TPWD's activities.
In addition, we must also still determine that any impacts on the
species or stock from other types of take (i.e., harassment) caused by
the applicant do not combine with the impacts from mortality or serious
injury addressed here to result in adverse effects on the species or
stock through effects on annual rates of recruitment or survival. The
rule also allows for a limited number of takes by non-auditory injury
for each stock (no more than 1 to 2 takes per stock by Level A
harassment over the 5-year duration). Given the limited number of
potential instances, these non-auditory injuries are unlikely to be of
a nature or level that would impact reproduction or survival.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.

Small Numbers

As noted previously, only take of small numbers of marine mammals
may be authorized under section 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers. Therefore, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers (see 86 FR
5322, January 19, 2021). Additionally, other qualitative factors may be
considered in the analysis, such as the temporal or spatial scale of
the activities.
The number of takes NMFS proposes to authorize is below one-third
of the abundance for all of the bottlenose dolphins BSE stocks where
take is proposed (table 8). The total annual number of takes proposed
for authorization is no higher than one percent of the population for
any of the affected Texas BSE stocks.

[[Page 12986]]

Table 8--Amount of Proposed Taking of Texas Bottlenose Dolphin Stocks Relative to Stock Abundance
----------------------------------------------------------------------------------------------------------------
Proposed M/SI and Percent of
Stock Stock Level A take population proposed
abundance (annual) for take
----------------------------------------------------------------------------------------------------------------
Copano Bay/Aransas Bay/San Antonio Bay/Redfish Bay/ \1\ 669 1 0.2
Espiritu Santo Bay......................................
Laguna Madre............................................. \1\ 222 0.6 0.3
Nueces Bay/Corpus Christi Bay............................ \1\ 1,744 0.6 <0.1
Matagorda Bay/Tres Palacios Bay/Lavaca Bay............... \2\ 150 0.6 0.4
West Bay................................................. \3\ 37 0.4 1.1
Galveston Bay/East Bay/Trinity Bay....................... \3\ 842 0.4 <0.1
Sabine Lake.............................................. \3\ 122 0.4 0.3
----------------------------------------------------------------------------------------------------------------
\1\ Abundance values used for these stocks are the Nmin calculated values from the Garrison (2025) report.
\2\ The SEFSC conducted stock structure research (biopsy sampling surveys) from 2012-2014. During the biopsy
sampling, photos were taken for photo-ID and 285 individual dolphins with distinct dorsal fins were identified
within this stock boundaries (NMFS SEFSC, UNPUBLISHED DATA). Abundance value shown here is Nbest.
\3\ Abundance values for these stocks come from the SARs.

Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals would be taken relative to the population
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.

Endangered Species Act

Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency ensures that any action it
authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance with the issuance of LOAs, NMFS
consults internally whenever we propose to authorize take for
endangered or threatened species.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.

Classification

This proposed rule has been determined to be not significant for
purposes of Executive Order (E.O.) 12866. This proposed rule is not an
E.O. 14192 regulatory action because this rule is not significant under
E.O. 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
TPWD is the sole entity that would be subject to the requirements in
these proposed regulations, and TPWD is not a small governmental
jurisdiction, small organization, or small business, as defined by the
RFA. Because of this certification, a regulatory flexibility analysis
is not required and none has been prepared.
This proposed rule contains collection-of-information requirements
subject to the provisions of the PRA. These requirements have been
approved by OMB under control number 0648-0151 and include the
applications for regulations, subsequent LOAs, and reports. Submit
comments regarding any aspect of this data collection, including
suggestion for reducing the burden, to NMFS (see ADDRESSES section) and
through the Regulatory Dashboard at: <a href="https://www.reginfo.gov">https://www.reginfo.gov</a>.
Notwithstanding any other provision of law, no person is required to
respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the PRA unless that collection of information displays a currently
valid OMB control number.

Request for Information

NMFS requests interested persons to submit comments, information,
and suggestions concerning the TPWD's request and the proposed
regulations (see ADDRESSES). All comments will be reviewed and
evaluated as we prepare the final rule and make final determinations on
whether to issue the requested authorizations. This notice and
referenced documents provide all environmental information relating to
our proposed action for public review.

List of Subjects in 50 CFR 217

Fish, Endangered and threatened species, Marine mammals, Mitigation
and monitoring requirements, Reporting and recordkeeping requirements,
Wildlife.

Dated: March 3, 2026.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 217 as follows:

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS

0
1. The authority citation for 50 CFR part 217 continues to read as
follows:

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

0
2. Add subpart J to read as follows
Subpart J--Taking Marine Mammals Incidental to Texas Parks and Wildlife
Department Fisheries Research
Sec.
217.90 Specified activity and geographical region.
217.91 Effective dates.
217.92 Permissible methods of taking.
217.93 Prohibitions.
217.94 Mitigation requirements.
217.95 Requirements for monitoring and reporting.
217.96 Letters of Authorization.
217.97 Renewals and modifications of Letters of Authorization.
217.98-217.99 [Reserved]

[[Page 12987]]

Subpart J--Taking Marine Mammals Incidental to Texas Parks and
Wildlife Department Fisheries Research

Sec. 217.90 Specified activity and geographical region.

(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 for the 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 authorize or
fund to conduct activities on their 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.
[GRAPHIC] [TIFF OMITTED] TP18MR26.002

Figure 2. Texas Bays Sound and Estuary Stock Boundaries

Sec. 217.91 Effective Dates

Regulations under this subpart are effective from [EFFECTIVE DATE
OF FINAL RULE], through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL
RULE].

Sec. 217.92 Permissible methods of taking.

Under a LOA issued pursuant to Sec. Sec. 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 Sec. 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.

Sec. 217.93 Prohibitions

(a) Except for the taking permitted in Sec. 217.90 and authorized
by the LOA issued under Sec. 216.106 of this chapter and this subpart,
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 Sec. 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 Sec. 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 Sec. 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]

Sec. 217.94 Mitigation requirements.

(a) When conducting the activities identified in Sec. 217.90(a),
the mitigation measures contained in this subpart and any LOA issued
under Sec. Sec. 216.106 and 217.96 of this chapter 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 in (10 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 have

[[Page 12988]]

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 remaining on the animal as possible. 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]

Sec. 217.95 Requirements for monitoring and reporting.

(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 Sec. 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 injured or dead marine mammals 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;
(v) A summary of all relevant marine mammal training and any
coordination with OPR.

Sec. 217.96 Letters of Authorization.

(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 Sec. 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.

Sec. 217.97 Renewals and modifications of Letters of Authorization.

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

[[Page 12989]]

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 Sec. Sec. 216.106 of this chapter and
217.96 for the activity identified in Sec. 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 Sec. Sec. 216.106
of this chapter and 219.87, 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.

Sec. 217.98-217.99 [Reserved]

[FR Doc. 2026-05263 Filed 3-17-26; 8:45 am]
BILLING CODE 3510-22-P

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