The Department proposes to define a service animal, under its ACAA regulations in 14 CFR part 382, as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. 1 Furthermore, this NPRM proposes to allow airlines to recognize emotional support animals as pets rather than service animals. The NPRM also proposes to allow airlines to require all passengers with a disability traveling with a service animal to complete and submit to the airline forms developed by DOT attesting to the animal's training and good behavior, certifying the animal's good health, and attesting that the animal has the ability either not to relieve itself on a long flight or to relieve itself in a sanitary manner. In addition, this NPRM would clarify existing prohibitions on airlines' imposing breed restrictions on service animals and would allow airlines to set policies to limit the number of service animals that one passenger can bring onboard an aircraft. This NPRM would also generally require service to be harnessed, leashed, or otherwise tethered. This NPRM also proposes requirements that would address the safe transport of large service animals in the aircraft cabin and would clarify when the user of a service animal may be charged for damage caused by the service animal. Finally, this NPRM addresses the responsibilities of code-share partners, among other provisions.

The Air Carrier Access Act (ACAA), 49 U.S.C. 1705, prohibits discrimination in airline service on the basis of disability. When enacted in 1986, the ACAA applied only to U.S. air carriers. On April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21) amended the ACAA to include foreign carriers.

The ACAA, while representing a watershed mandate of nondiscrimination in air transportation for passengers with disabilities, does not specify how U.S. and foreign air carriers must act to avoid such discrimination. The statute similarly does not specify how the Department should regulate with respect to these issues. In addition to the ACAA, the Department's authority to regulate nondiscrimination in airline service on the basis of disability is based in the Department's rulemaking authority under 49 U.S.C. 40113, which states that the Department may take action that it considers necessary to carry out this part, including prescribing regulations.

The Department issued its first ACAA regulation in 1990 following a lengthy rulemaking process that included a regulatory negotiation involving representatives of the airline industry and representatives from disability communities. Since then, the Department's disability regulations have been amended approximately 15 times to enhance access. The ACAA regulations define the rights of qualified individuals with disabilities  2 and the obligations of airlines. The regulations also specify that airlines may refuse to provide transportation to any passenger on the basis of safety or to any passenger whose carriage would violate Federal Aviation Administration (FAA) or Transportation Security Administration requirements or applicable requirements of a foreign government. 3 For example, the FAA, which is charged with promoting safe flight of aircraft, 4 has long prohibited conduct aboard flights that interferes with crewmember duties. FAA regulations state that “no person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember's duties aboard an aircraft being operated.”  5 The ACAA regulations are intended to help ensure that individuals with disabilities enjoy equal access to the air transportation system.

The Americans with Disabilities Act (ADA), which was enacted in 1990, does not cover discrimination against a person with a disability in air transportation but prohibits discrimination against individuals with disabilities in most other areas of public life, including employment, State and local government activities, public transportation services, and public accommodations such as restaurants and retail stores. The ADA requires that the Department of Justice (DOJ) issue regulations for implementing Title II, which applies to State and local government entities, and Title III, which applies to public accommodations and commercial facilities. DOJ first issued such regulations in 1991 and published revised regulations in 2010, which took effect in March 2011. In those regulations, DOJ defines a service animal as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or mental disability. 6 DOJ's ADA definition of a service animal differs from DOT's current ACAA definition of a service animal as DOJ does not recognize emotional support animals as service animals because they are not individually trained to do work or perform tasks for the benefit of an individual with a disability  7 and DOJ's ADA regulations limit service animals to dogs. 8

The current rulemaking presents questions about how the ACAA is reasonably interpreted and applied to require airlines to accommodate the needs of individual passengers whose physical or mental disability necessitates the assistance of a service animal in air transportation. In approaching these questions, the Department recognizes that the ACAA's nondiscrimination mandate is not absolute. The statute requires airlines to provide accommodations that are reasonable in light of the realities and limitations of air service and the onboard environment of commercial airplanes. DOJ, in interpreting the ADA, similarly allows public accommodations to consider the characteristics of miniature horses, including the implications of their presence on the safe operation of a given facility, when determining whether they may be accommodated within a facility. 9 The cabins of most aircraft are highly confined spaces, with many passengers seated in close quarters and very limited opportunities to separate passengers from nearby disturbances. Animals on aircraft may pose a risk to the safety, health, and well-being of passengers and crew and may disturb the safe and efficient operation of the aircraft. Any requirement for the accommodation of passengers traveling with service animals onboard aircraft necessarily must be balanced against the health, safety, and mental and physical well-being of the other passengers and crew and must not interfere with the safe and efficient operation of the aircraft.

The Department has identified the following compelling factors that justify the issuance of a revision to the Department's regulations on traveling by air with service animals in 14 CFR part 382:

Service animal-related complaints are increasingly a more significant portion of the disability-related complaints that the Department's Aviation Consumer Protection Division and airlines receive. Given the year-over-year increase in the number of service animal complaints received by the Department against airlines, it is clear that the provision of assistance to passengers traveling with service animals is an area of increasing concern for passengers with disabilities. The Department received 115 service animal complaints against airlines in 2018, 70 complaints in 2017, 110 complaints in 2016, and 100 complaints in 2015, compared with 48 such in 2014 and 45 complaints in 2013.

The increase in the number of service animal complaints is also representative of the complaints airlines received directly from passengers. U.S. and foreign airlines reported receiving 3,065 service animal complaints directly from passengers in 2018, 2,473 complaints in 2017, 2,433 in 2016, and 1,629 in 2015, compared with 1,010 such complaints in 2014 and 719 in 2013.

At the same time, concerns have been raised by airlines, airports, and disability advocates about inconsistencies between the definition of a service animal under our rules for U.S. and foreign air carrier services versus in the airport context. As explained above, DOJ's ADA regulations, which apply to public and commercial airports and airport facilities operated by businesses like restaurants and stores, define a service animal as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or mental disability. 10 DOJ does not recognize emotional support animals as service animals because they are not individually trained to do work or perform tasks for the benefit of an individual with a disability. 11 While DOJ's ADA regulations limit service animals to dogs, entities covered by the ADA are required to assess whether they must permit individuals with disabilities to be accompanied by miniature horses as a reasonable modification. 12 DOT's current ACAA regulations, which apply to airlines and their facilities and services, require airlines to recognize service animals regardless of species with exceptions for certain unusual species of service animals such as snakes, other reptiles, ferrets, rodents, and spiders. DOT's current ACAA regulations also require airlines to recognize emotional support animals as service animals. 13 Consequently, a restaurant in an airport could, without violating DOJ rules, deny entry to an emotional support animal that an airline, under the ACAA, would have to accept. These inconsistencies between DOT's ACAA and DOJ's ADA definition of a service animal present practical challenges for airlines and airports, and are a source of confusion for individuals with disabilities and the traveling public.

Passengers have attempted to fly with many different unusual species of animals, such as a peacock, ducks, turkeys, pigs, iguanas, and various other types of animals as emotional support or service animals, causing confusion for airline employees and additional scrutiny for service animal users. Disability advocates have voiced concerns that the use of these unusual service animals on aircraft erodes the public's trust and confidence in service animals. Airlines, meanwhile, have expressed concern about the heightened attention these animals have received and the resources airlines expend each time an unusual or untrained animal is presented for transport on an aircraft.

Passengers wishing to travel with their pets may be falsely claiming that their pets are service animals so they can take their pet in the aircraft cabin or avoid paying pet fees charged by most airlines since airlines cannot charge service animal users a fee to transport service animals. Airlines have reported increases in the number of service animals on aircraft and expressed concern that the significant increase in the number of service animals traveling on aircraft may be the result of an increase in emotional support animals and/or passengers falsely claiming that their pets are emotional support animals. 14 Furthermore, according to airlines, passengers are increasingly bringing untrained service animals onboard aircraft and putting the safety of crewmembers, other passengers, and other service animals at risk.

There have also been reports of some online entities that may, for a fee, provide individuals with pets a letter stating that the individual is a person with a mental or emotional disability and that the animal is an emotional support animal or psychiatric service animal, when in fact it is not. While the Department's current service animal regulation permits airlines to require documentation from a licensed mental health professional for the carriage of emotional support animals, the advent of online entities that may be guaranteeing the required documentation for a fee has made it difficult for airlines to determine whether passengers traveling with animals are traveling with their pets or with legitimate emotional support animals.

The Department's service animal guidance provides that all service animals should be trained to behave properly in public to be treated as a service animal. 15 Despite this guidance, some believe that emotional support animals pose a greater safety risk because they have not been trained to mitigate a disability and, therefore, are less likely to have received adequate behavioral training. 16 Airlines have reported increases in the number of behavior-related service animal incidents on aircraft, including urinating, defecating, and biting. In 2018 and 2019, some airlines issued new service animal policies that require passengers traveling with a service animal to provide behavior/training attestations and animal health information as a condition of transportation. 17 These policies are mostly applicable to emotional support and psychiatric service animals and were created to address perceived or actual increased incidents of animal misbehavior on aircraft. In response, disability rights advocates expressed concern about the increased burdens that these polices have placed on legitimate service animal users. Disability advocates are also concerned about the increased stigma and negative perception of all service animals traveling on aircraft.

The Department has heard from the transportation industry, as well as individuals with disabilities, that the current ACAA regulation could be improved to ensure nondiscriminatory access for individuals with disabilities, while simultaneously preventing instances of fraud and ensuring consistency with other Federal regulations. The Psychiatric Service Dog Society (PSDS), an advocacy group representing users of psychiatric service dogs, petitioned the Department in 2009 to eliminate a provision in the Department's ACAA regulations permitting airlines to require documentation and 48 hours' advance notice for users of psychiatric service animals. PSDS asserted that the Department's current regulation treats individuals with mental and emotional disabilities unfairly because individuals traveling with psychiatric service animals, animals which are trained to do work or perform a task to assist individuals with disabilities, are subject to more burdensome requirements than passengers traveling with other trained service animals. 18

The Department also received comments from airlines and airline associations regarding the need to revise the Department's ACAA service animal regulations after the Department published a Notice of Regulatory Review in the Federal Register on October 2, 2017, inviting public comment on existing rules and other actions that are good candidates for repeal, replacement, suspension, or modification. 19 Airlines generally asked that DOT harmonize its ACAA definition of a service animal with the service animal definition in DOJ's ADA regulations. 20 Further, in 2018, ten disability advocacy organizations urged the Department to stop the proliferation of a patchwork of service animal access requirements in airlines' service animal policies. 21

The FAA Extension, Safety, and Security Act of 2016 requires that the Department issue a supplemental notice of proposed rulemaking on various access issues referenced in the Secretary's June 15, 2015, Report on Significant Rulemakings, including traveling by air with service animals. 22 Further, the FAA Reauthorization Act of 2018 (The FAA Act) requires the Department to conduct a rulemaking proceeding on the definition of the term service animal and to develop minimum standards for what is required for service and emotional support animals. 23 Congress also required the Department to consider whether it should align DOT's ACAA definition of a service animal with the service animal definition established by DOJ in its rule implementing the ADA. 24

In addition, Congress directed the Department to consider the following measures to ensure that pets are not claimed as service animals: (1) Photo identification for service animals, (2) training documentation, (3) medical documentation indicating the tasks the animal performs to assist its user, and (4) whether more than one service animal should be permitted to accompany a passenger. 25 Moreover, the FAA Act requires the Department to consider the following to ensure the health and safety of passengers onboard aircraft: (1) Whether to require health and vaccination records for service animals, (2) whether to require third-party proof of behavior training for service animals. Finally, DOT must consider the impact of additional requirements on passengers with disabilities traveling with service animals and ways to eliminate or mitigate those impacts. The Department is considering each of these measures as part of the present rulemaking. The FAA Act directs the Department to issue a final rule on service animals no later than March 22, 2020.

In April 2016, the Department established an Advisory Committee on Accessible Air Transportation (ACCESS Advisory Committee) to negotiate and develop a proposed rule concerning accommodations for individuals with disabilities traveling by air with service animals. 26 The Committee members and other interested parties discussed the following issues: (1) Distinguishing between emotional support animals and other service animals; (2) limiting the species of service animals that airlines are required to transport; (3) limiting the number of service animals that a single individual should be permitted to transport; and (4) requiring attestation from all service animal users that their animal has been trained to behave in a public setting. However, despite good faith efforts, the ACCESS Advisory Committee was not able to reach consensus on how the service animals regulations should be revised. Nevertheless, the Department gathered useful information during this process from disability rights advocates, the airline industry, an association representing flight attendants, and other interested parties.

On May 23, 2018, the Department published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPRM) titled “Traveling by Air with Service Animals.”  27 In the ANPRM, the Department sought comment on how to amend the Department's ACAA regulations to address the problems that exist with the rule, while also ensuring nondiscriminatory access for individuals with disabilities in air transportation.

In the ANPRM, the Department sought comment on the following: (1) Whether psychiatric service animals should be treated similarly to other service animals; (2) whether there should be a distinction between emotional support animals and other service animals; (3) whether emotional support animals, if allowed onboard a flight, should be required to travel in pet carriers for the duration of the flight; (4) whether the species of service animals and emotional support animals that carriers are required to transport should be limited (for example, limited to dogs only); (5) whether the number of service animals/emotional support animals should be limited per passenger; (6) whether an attestation should be required from all service animal and emotional support animal users that their animals have been trained to behave in a public setting; (7) whether service animals and emotional support animals should be harnessed, leashed, or otherwise tethered; (8) whether there are safety concerns with transporting large service animals and if so, how to address them; (9) whether airlines should be prohibited from requiring a veterinary health form or immunization record from service animal users without an individualized assessment that the animal would pose a direct threat to the health or safety of others or would cause a significant disruption in the aircraft cabin; and (10) whether U.S. airlines should continue to be held responsible if a passenger traveling under the U.S. carrier's code faces additional restrictions on travel with a service animal on a flight operated by the U.S. carrier's foreign codeshare partner. 28

The Department received approximately 4,500 comments over the 45-day comment period from disability advocacy organizations, airlines, human and animal health organizations, consumer groups, and other interested parties; the vast majority of these comments were from individual members of the public. 29 The Department has carefully reviewed and considered the comments received and is proposing a rulemaking that is designed to ensure that airlines provide nondiscriminatory access to passengers with disabilities who require the assistance of service animals while incorporating modifications to these requirements reasonably designed to ensure that airlines remain able to provide for the safety and well-being of all passengers and crewmember and the safe and efficient operation of the aircraft. The Department's responses to the comments are set forth below, immediately following a summary of regulatory provisions and a summary of the regulatory impact analysis.

The Department has prepared a preliminary regulatory evaluation in support of the NPRM to amend the ACAA service animal regulations. DOT proposes to define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. DOT's proposed service animal definition also explains that emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals for purposes of this rule. In addition, DOT proposes to treat psychiatric service animals (animals that assist individuals with mental health related disabilities) like other service animals. Under the proposed rule, airlines would be allowed to require passengers traveling with a service animal to complete forms attesting that the passenger's service animal has been individually trained to do work or perform tasks for the benefit of the passenger with a disability, the animal has been trained to behave in public, the animal is in good health, and the animal has the ability either not to relieve itself on a long flight or to relieve itself in a sanitary manner.

Under the proposed rulemaking, carriers would no longer be required to recognize emotional support animals as service animals. Passengers currently have an incentive to claim pets as emotional support animals as existing regulations require carriers to transport all emotional support animals at no cost to the passenger.

The primary economic impact of this proposed rulemaking is that it eliminates a market inefficiency. The current policy amounts to a price restriction, which requires carriers to forgo a potential revenue source. In addition, the current policy, which effectively sets the price at zero, requires carriers to use resources to provide an accommodation for emotional support animals.

There is one quantified cost element: A potential burden on passengers traveling with service animals who may be required to submit up to three DOT forms to carriers. For Paperwork Reduction Act (PRA) purposes, we estimate that the forms could create 144,000 burden hours and $3.0 million in costs per year. In some cases, however, carriers already ask passengers to complete equivalent non-governmental forms. Thus, the PRA numbers likely overestimate the burden that would result from this rulemaking.

Public or non-use values or negative externalities in ESA travel could affect the efficiency consequences of this proposed rule. The preliminary regulatory evaluation describes the potential impacts of non-use values and negative externalities in detail but does not quantify them due to a lack of data. The Department requests information and data to quantify and evaluate the extent of these impacts.

The Department's current service animal rule does not include a species restriction with the exception of certain unusual species, such as snakes, other reptiles, ferrets, rodents, and spiders.

In the ANPRM, the Department sought comment on what, if any, species limitations should be placed on service animals. 30 In light of suggestions made by certain disability advocacy organizations, the Department also sought specific comment on whether capuchin monkeys should be recognized as service animals. 31 Finally, the Department requested comment on whether it should recognize miniature horses under its definition of a service animal, as some individuals with disabilities prefer miniature horses instead of dogs as service animals for religious reasons, because of their long life spans, and/or because of allergies. 32

Individual commenters, disability advocates, airlines, and other commenters all support dogs as service animals. This result is not surprising as the Department has been consistently informed that the clear majority, approximately 90 percent or more, of service animals that travel on aircraft are dogs. Some commenters note that dogs are the preferred species for service animals because they can be more easily trained to mitigate a passenger's disability than other animals. In a joint comment filed by Airlines for America (A4A), the Regional Airline Association (RAA), and International Air Transport Association (IATA), these associations commented that dogs in particular can hold their elimination functions for extended amounts of time, have the correct temperament to serve as service animals, and can be trained to behave appropriately in public and around large groups of people. 33 Assistance Dogs International (ADI) notes specifically that dogs have been assisting individuals with disabilities for over 100 years. 34

A smaller majority of disability advocate organizations and airports support both dogs and miniature horses as service animals. Disability advocates argue that miniature horses should be recognized subject to aircraft space restraints for those individuals with disabilities who rely on these animals, while airports argue for their inclusion to promote greater predictably for passengers with disabilities and airport operators. Although miniature horses do not fall under DOJ's definition of a service animal, DOJ requires covered entities such as airports to permit individuals with disabilities to use miniature horses, where reasonable, if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. 35

Some disability organizations, however, argue against miniature horses as service animals, reasoning that horses are not commonly used as service animals and that excluding them from the rule will not impact many individuals with disabilities. Some airline commenters acknowledged that they receive very few requests to accommodate miniature horses each year and further oppose the inclusion of miniature horses as service animals because they are too large and inflexible to be safely accommodated on an aircraft and to fit within a passenger's foot space.

A small number of disability advocacy organizations support capuchin monkeys as service animals because of their ability to assist individuals with limited mobility with in-home services; however, these groups recognize that capuchin monkeys must be contained in a carrier in the airport and on the aircraft because of the potential danger they pose. Other disability advocacy organizations, airlines, and animal health associations strongly oppose recognizing capuchin monkeys as service animals. These groups argue that capuchin monkeys, while trained to do work or perform tasks for individuals with disabilities, are not domesticated animals and can be prone to increased aggression. Other groups oppose capuchin monkeys and other non-human primates as service animals, citing DOJ's position that these animals have the potential for disease transmission and that they exhibit unpredictable aggressive behavior. 25

While Paralyzed Veterans of America (PVA) supports some limitations on the type of species that may be used as service animals or emotional support animals, the organization argues that access should be provided for all species and sizes of dogs, cats, rabbits, miniature horses, capuchin monkeys and other species that can be trained to behave appropriately and be safely brought on airplanes. 36 Finally, while the Association of Flight Attendants (AFA) commented that service animals and ESAs should be limited by species, it recognized that it was not in a position to make specific recommendations about the type of species airlines should be required to transport. 37 However, AFA recognized that it is appropriate for the Department under the ACAA to consider the characteristics of the animal that may be carried in the cabin, the size of the animal, and the aircraft's ability to accommodate the animal.

DOT proposes to define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. DOT's proposed service animal definition also explains that emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals. Consistent with this definition, the Department proposes to limit the species of service animals to dogs. Under the Department's proposal, airlines could choose to transport other species of animals that assist individuals with disabilities in the cabin for free pursuant to an established airline policy, but would only be required under Federal law to recognize dogs as service animals. The Department considered the fact that dogs are the most common animal species used by individuals to mitigate disabilities both on and off aircraft as noted by many commenters. Dogs also have both the temperament and ability to do work and perform tasks while behaving appropriately in a public setting and while being surrounded by a large group of people.

The Department considered, but decided against, a proposal that would include other species as service animals, including capuchin monkeys and miniature horses. Although trained capuchin monkeys can assist persons with limited mobility with their daily tasks, we are not proposing to recognize capuchin monkeys as service animals because they may present a safety risk to other passengers as they have the potential to transmit diseases and may exhibit “unpredictable aggressive behavior.”  38 Further, according to information the Department received from Helping Hands: Monkey Helpers, 39 it is often, if not always, qualified trainers rather than individuals with disabilities, who travel by air with capuchin monkeys, as the trainer delivers the monkeys. However, neither the existing regulation nor the proposed rule would require airlines to transport service animals when they are not accompanied by the service animal user. Because individuals with disabilities may have significantly more difficulty obtaining the assistance of capuchin monkeys if they are not allowed to travel by air with their trainer, the Department seeks comment on whether to require airlines to allow the transport of closed-colony capuchin monkeys  40 in a carrier (capuchin monkeys weigh approximately 6-10 lbs.) and when traveling with a qualified trainer. 41

In addition, the Department did not propose to include miniature horses in its definition of a service animal given size limitations on aircraft. The Department seeks comment on its proposal to limit service animals to dogs.

While the Department's disability regulations allow airlines to deny transportation to an animal if, among other things, it poses a direct threat to the health or safety of others, the Department has taken the position that restrictions on specific dog breeds or types are inconsistent with its current service animal regulation. 42

Although the Department did not specifically seek comment on whether airlines should be permitted to refuse transportation to certain breeds or types of service dogs, the Department received a number of comments on airline breed restrictions.

The Department received hundreds of comments from individual commenters on whether airlines should be permitted to restrict service dogs based on breed or type. Delta Air Lines, Inc. (Delta Air Lines) commented that carriers should be permitted to impose such restrictions to ensure the safety of passengers on aircraft if the Department does not establish a clear means to demonstrate that an animal can behave properly. 43 No other airline and no disability rights organization addressed this issue as the ANPRM did not specifically call for comment on this subject.

Most individual commenters did not support allowing airlines to impose breed restrictions on service animals. These commenters stated that pit-bull bans are discriminatory and that their pit-bull-type dogs, like other dogs, can be trained to perform tasks to mitigate a user's disabilities and can be well behaved. These commenters also questioned an airline's ability to determine whether a dog is a “pit bull” simply by looking at the animal's features. Conversely, approximately 22 percent of commenters supported a breed or type restriction on dogs such as pit bulls (typically taken to include American pit bull terriers, Staffordshire bull terriers, and American Staffordshire bull terriers), as well as other types of dogs that commenters believe are commonly known to be aggressive.

The Department is proposing that airlines should continue to be prohibited from restricting service animals based solely on the breed or generalized type of dog. The Department's policy has been to require airlines to conduct individualized assessments of particular service animals based on the animal's evident behavior or health, rather than applying generalized assumptions about how a breed or type of dog would be expected to behave. Under this policy, the Department allows airlines to refuse transportation to dogs that exhibit aggressive behavior and that pose a direct threat to the health or safety of others regardless of breed, and we propose to retain that policy in our new service animal rule. We note that DOJ also rejects an outright ban on service animals because of their breed in implementing its regulations under the ADA. DOJ has advised municipalities that prohibit specific breeds of dogs that they must make an exception for a service animal of a prohibited breed, unless the dog poses a direct threat to the health or safety of others, a determination that must be made on a case-by-case basis. 44

However, the Department understands the concerns raised about pit bulls and certain other breeds or types of dogs that have a reputation of attacking people and inflicting severe and sometimes fatal injuries. The Department also understands that there may be concerns that certain dogs may be dangerous because of their muscular bodies, large and powerful jaws and neck muscles, and ferocity when provoked to attack. The Department seeks comment on whether these concerns are valid. In particular, the Department seeks comment on whether, notwithstanding the DOJ rules under the ADA, the unique environment of a crowded airplane cabin in flight justifies permitting airlines to prohibit pit bulls and any other particular breeds or types of dogs from traveling on their flights under the ACAA even when those dogs have been individually trained to perform as service animals to assist a passenger with a disability. The Department will consider this question in light of the full rulemaking record when finalizing this rule. The Department also seeks comment on whether its proposal to allow airlines to conduct an individualized assessment of a service animal's behavior to determine whether the service animal poses a direct threat to the health or safety of others is an adequate measure to ensure that aggressive animals are not transported on aircraft, rather than banning an entire breed or type of service animal.

For purposes of air transportation, under our existing rules, DOT considers a service animal to be any animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal shown by documentation to be necessary for the emotional well-being of a passenger. 45 However, while the Department currently requires airlines to recognize emotional support animals as service animals, it allows airlines to require that emotional support animal users provide a letter from a licensed mental health professional of the passenger's need for the animal. Currently, the Department's ACAA rules allow airlines to require emotional support animal users to provide current documentation (no older than one year from the date of the passenger's scheduled initial flight) on the letterhead of a licensed mental health professional stating the following:

(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV);

(2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger's destination;

(3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

(4) The date and type of the mental health professional's license and the state or other jurisdiction in which it was issued. 46

Furthermore, to enable airlines sufficient time to assess the passenger's documentation, DOT permits airlines to require 48 hours' advance notice of a passenger's wish to travel with an emotional support animal so that airlines can verify the documentation. Airlines are also permitted to require that passengers traveling with emotional support animals check-in one hour before the check-in time for the general public. 47

In the ANPRM, the Department described the concerns raised by airlines, disability advocates, flight attendants, and the traveling public that emotional support animals may pose a safety risk to other service animals, passengers, and airline personnel and could create a disturbance or disruption that would interfere with the safe and efficient operation of the aircraft. The Department sought comment on whether it should continue to include emotional support animals in the definition of a service animal in its ACAA regulation, or adopt a definition of service animal similar to the definition in DOJ's ADA regulation where emotional support animals are not recognized as service animals. 48

In the event that the Department decided to continue to recognize emotional support animals as service animals, the Department sought comment on whether it should continue to allow airlines to require emotional support animal users to provide documentation. 49 The Department also sought comment on alternative approaches to documentation that can be used to verify an emotional support animal's status. 50 Further, the Department sought comment on whether emotional support animals should be regulated separately and distinctly from service animals, and if airlines are required to transport emotional support animals, whether airlines should be allowed to require that emotional support animals be contained. 51

Most organization commenters urged the Department to align its definition of a service animal with DOJ's definition of a service animal, which does not recognize emotional support animals and limits service animals to dogs individually trained to do work or perform a task for an individual with a disability. As part of this NPRM, the Department seeks comment on reasons the regulation of service animals on aircraft should or should not differ from DOJ's regulation of service animals under its rules implementing the ADA. Airline organizations commented that the Department should follow DOJ's lead and exclude emotional support animals from the definition of a service animal in the air transportation context because DOJ's definition is “better suited to the particular challenges associated with accommodating animals in the aircraft cabin environment, which involves allowing animals to travel in a confined, noisy, moving space at high altitude . . . and in close proximity to crew, passenger, and other animals and no opportunity to remove the animal during flight.”  52 Similarly, disability advocates have commented that the Department's current rule, which classifies emotional support animals as service animals, causes significant confusion in the disability community.

However, while disability advocates, airlines, and the majority of commenters agree that emotional support animals should be removed from the definition of a service animal, they disagree on whether the Department should recognize emotional support animals as an accommodation for individuals with disabilities that would be regulated separately and distinctly from service animals. Most advocacy organizations support a definition of service animal focused on animals trained to do work or perform tasks for the benefit of individuals with disabilities, similar to DOJ's definition. Those advocacy organizations, however, support the Department's continued recognition of emotional support animals, so long as emotional support animals are regulated separately and distinctly from service animals.

The National Federation of the Blind (NFB)  53 commented that emotional support animals, which are untrained to mitigate a disability, should be permitted as an accommodation subject to “specific and more restrictive conditions” of carriage. In addition, Psychiatric Service Dog Partners (PSDP)  54 commented that regulating emotional support animals differently from other service animals is warranted given that emotional support animals have not been trained to perform a specific task for a passenger with a disability, and emotional support animal users are likely not aware of DOT's behavior expectations or the required public access training protocols.

Similarly, in a joint comment filed by A4A, RAA, and IATA, these associations commented that should the Department continue to recognize emotional support animals, a decision opposed by the associations, emotional support animals should be regulated separately and distinctly from service animals and subject to more stringent requirements than service animals, such as documentation from a licensed mental health professional who has examined and diagnosed the emotional support animal user in person. 55

The majority of individual commenters provided general statements of support for the Department's continued recognition of emotional support animals, and did not opine on whether emotional support animals should be regulated separately from service animals. Generally, these individuals, along with those disability advocates in support of the continued recognition of emotional support animals, argue that the Department should continue to recognize the vital role that emotional support animals play in mitigating mental and emotional disabilities during air transportation and at a passenger's destination. Specifically, PVA insists that passengers with disabilities have access to their emotional support animals as the mere presence of these animals accommodates a person's disability and may be crucial to allowing a person with a disability to travel by air. 56 Similarly, the American Council of the Blind (ACB) recognizes that emotional support animals can perform a vital role for individuals who are incapable of moving freely through society. 57

Autism Speaks commented that the Department should afford individuals with disabilities who rely on emotional support and psychiatric service animals “with the same legal protections as people who use other service animals.”  58 Autism Speaks acknowledges that “people may not see the services psychiatric service animals and emotional support animals provide because sometimes these services may not be obvious; autism itself may be an invisible disability,” but “the needs of many people with autism for emotional support, however, are very real.”

Airlines have indicated that fraud and safety are the primary reasons they oppose the Department's continued recognition of emotional support animals. In a joint comment filed by A4A, RAA, and IATA, these associations commented that “incidents involving animals that allegedly are [emotional support animals] [have] become an unacceptable threat to the health and safety of airline staff and the traveling public, including qualified individuals with a disability who travel with a trained service animal and those trained service animals themselves.”  59

With respect to fraud, airlines commented that individuals traveling with purported emotional support animals may not actually be individuals with disabilities, and the surge in the transport of emotional support animals on aircraft is fueled by “cheap and easy availability of fraudulent credentials.” American Airlines, Inc. (American Airlines) commented that it experienced a 48-percent increase in the number of emotional support animals carried in 2017 compared to 2016 (105,155 in 2016 and 155,790 in 2017). 60 American Airlines also commented that it experienced a 17-percent decline in the number of requests to transport pets for a fee in 2017 in comparison to 2016. Spirit Airlines, Inc. (Spirit Airlines) commented on the loss of millions of dollars in pet carriage fees from passengers fraudulently claiming their “house pets are service or support animals” and on instances of emotional support animal misbehavior as justification for why the Department should not recognize emotional support animals. 61 Delta Air Lines recognizes that some passengers with disabilities “have a legitimate need” for emotional support animals; however, the carrier opposes the Department's continued recognition of emotional support animals and urged the Department to adopt the DOJ definition of a trained service animal. Delta believes that passengers who currently have a legitimate need for an emotional support animal could still be accommodated on aircraft under the DOJ definition of a service animal, if these passengers trained their animals to become psychiatric service animals, which are recognized as service animals by DOJ. 62 However, Spirit Airlines contends that the Department should eliminate the category of emotional support animals in its regulations because emotional support animals generally receive “ absolutely no training, neither obedience nor specific to their owner's disability” (emphasis in original). 63 Most U.S. carriers believe that most of the fraud and safety issues on which the Department sought comment in the ANPRM would be mitigated if DOT adopted a definition of service animal that excluded emotional support animals.

While U.S. airlines oppose the Department's continued recognition of emotional support animals, foreign carriers are split on this issue. Those foreign carriers in support of emotional support animals urge the Department to define emotional support animals separately from service animals and subject them to a more stringent regulatory standard. Health and safety concerns continue to be the primary justification provided by foreign carriers in support of eliminating emotional support animals or subjecting them to stricter regulation.

While most disability advocates oppose allowing airlines to require documentation from service animal users, including emotional support animal users, some advocacy organizations are in favor of documentation exclusively for emotional support animals. Some advocacy organizations support documentation for all service animal users in the form of a decision-tree, which is a series of questions designed to educate the public on traveling with service animals and reduce the instances of individuals fraudulently representing their pets as service animals. Some advocates and airlines expressed support for behavior attestations, another form of documentation first suggested during a 2016 negotiated rulemaking as a potential measure to be proposed by the Department in a future rulemaking. 64 Since the negotiated rulemaking, several carriers have created their own behavioral attestations as one of many service animal policy changes that carriers put into place in 2018 and 2019. Finally, some disability advocacy organizations that oppose documentation for service animals, including emotional support animals, commented that the Department should only permit airlines to make the same inquiries that DOJ permits under its regulation implementing the ADA: (1) Is the animal required because of a disability? and (2) What work or task has the animal been trained to perform?  65

While all commenting U.S. airline opposed the Department's continued recognition of emotional support animals, airlines have commented that if the Department continues to require airlines to transport emotional support animals as an accommodation for individuals with disabilities, airlines should be permitted to require those passengers to provide documentation from a medical professional that confirms the passenger's need for the animal. Airlines also commented that airlines should be able to impose more restrictive requirements—for example, that the passenger's diagnosis be based on an in-person visit and that the documentation state that the passenger has a mental impairment as defined in the Department's ACAA regulations, as opposed to stating only that the passenger has a disorder recognized under the Diagnostic and Statistical Manual of Mental Disorders.

Both U.S. and foreign carriers believe that allowing airlines to require documentation to prove the passenger's need for an emotional support animal is essential if the Department continues to recognize emotional support animals. Airlines commented that there is a significant problem with fraud under the Department's current requirements and that fraud would only become more prevalent should the Department dispense with a documentation requirement for emotional support animal users. The Association of Flight Attendants (AFA) also favors a documentation requirement for emotional support animal users and noted that while some emotional support animal users may be discouraged from flying if required to produce documentation, the correlation between a documentation requirement and fraud reduction justifies the requirement. That association also noted that while a documentation requirement may not eliminate fraud entirely, fraud reduction, to any degree, benefits the traveling public, individuals with disabilities, and airlines.

Disability advocates are largely split on the issue of whether emotional support animals should be contained in pet carriers. Some advocates support requiring the containment of emotional support animals but comment that they should be allowed to be removed from the carrier to mitigate a disability. Other disability advocates only support the containment of emotional support animals when the animal is behaving badly. Some disability advocates oppose a containment requirement altogether fearing that large emotional support animals that do not fit in pet carriers would not be permitted access on airplanes. Finally, some advocates recommend that emotional support animals merely be leashed, harnessed, or tethered, rather than contained.

The majority of airlines commented that if the Department chooses to recognize emotional support animals, emotional support animals should be contained for the duration of the flight. If the animal is too large to fit in a container, one airline suggests that the airline be permitted to treat the animal as a pet and offer the passenger the option for the animal to fly in the cargo compartment. Conversely Delta Air Lines, which generally opposes the Department's recognition of emotional support animals, does not support containing emotional support animals for the duration of the flight. 66 That carrier explained that if the Department were to decide to continue to recognize emotional support animals, emotional support animals would be unable to mitigate a passenger's disability if contained in a carrier. The carrier further stated that a containment requirement for emotional support animals, if allowed, would be inconsistent with the spirit of the ADA and the ACAA. The carrier does, however, support that airlines be granted the authority to restrain emotional support animals by harness, leash, or other restraint mechanisms.

Airport commenters support a requirement that emotional support animals be contained if they continue to be recognized, especially while traversing through the airport. Airports argue that airport operators have the right to require any animal that is not a service animal under the ADA to be contained and a containment requirement promotes consistency between the ADA and ACAA regulations.

Disability advocacy organizations and the public are generally split on what species of emotional support animals the Department should recognize if it continues to recognize emotional support animals. Some public commenters and disability advocacy organizations favor the Department's current species requirement for emotional support animals, which does not limit species except with respect to unusual species such as snakes, other reptiles, fetters, rodents, and spiders. 67 Conversely, other individual commenters and disability advocates urge the Department to recognize only dogs and miniature horses as emotional support animals.

The majority of disability advocacy organizations and public commenters, however, are split between favoring a requirement that dogs and cats be recognized as emotional support animals and favoring a requirement that dogs, cats, and rabbits be recognized as emotional support animals because, as noted by these organizations, dogs, cats and rabbits are the most commonly used species of emotional support animal. A small contingent of disability advocacy organizations encourage the Department to allow airlines to limit emotional support animals to animals that have been trained to behave properly in public, rather than specifying a species in the rule. Finally, one advocacy organization argues that all trained or domesticated emotional support animals should be permitted to be recognized as a service animal under DOT's ACAA rule.

Most airlines commented that they should only be required to carry dogs as emotional support animals if the Department continues to recognize emotional support animals, although some also support permitting miniature horses, subject to airline pre-approval. One airline suggests that cats be allowed as emotional support animals if the Department continues to recognize emotional support animals.

The Department proposes in this NPRM to define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. This definition is similar to DOJ's definition of a service animal under Title II and Title III of the ADA. 68 DOJ's Title II rules for State and local governments govern airports owned by a public entity and DOJ's Title III rules for public accommodations and commercial facilities govern privately owned airports and airport facilities. Under DOT's proposed service animal definition, like DOJ's service animal definition in its ADA rules, emotional support animals would not be recognized as service animals as they are not trained to do work or perform a task for the benefit of an individual with a disability. The Department's proposal is intended to align DOT's ACAA definition of a service animal with the service animal definition established by DOJ in its rules implementing the ADA and thereby decrease confusion for individuals with disabilities, airline personnel, and airports. While the Department proposes to allow airlines to treat emotional support animals as pets rather than service animals, airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to an airline's established policy. The Department seeks comment on its proposed service animal definition, which does not recognize emotional support animals and limits the species that qualify as service animals to dogs.

Although the NPRM proposes not to treat emotional support animals as service animals, the Department seeks further comment on whether the Department should recognize emotional support animals as an accommodation for individuals with disabilities that would be regulated separately and distinctly from service animals. The Department recognizes that we have already received considerable feedback on this topic during the comment period to the ANPRM; individuals and organizations need not re-submit those same comments during the comment period to this NPRM. The NPRM solicits comment on whether, and to what extent, the proposal not to recognize emotional support animals would impact the ability of individuals with disabilities who rely on emotional support animals to travel via aircraft. The Department seeks comment on whether individuals with disabilities who use emotional support animals to mitigate their disabilities would be less likely to travel by air if they are no longer permitted to travel with their emotional support animal. Furthermore, since airlines would be permitted to treat emotional support animals as pets, the Department requests information from airlines on whether individuals would be able to transport emotional support cats or other small animals as pets in the cabin for a fee and whether there are limits on the number of pets an airline would allow per flight which could impact their transport.

Some commenters have noted that emotional support animal users who have a mental health disability may train their dogs to do work or perform a task to assist them with their disability, thereby transforming the animal from an emotional support animal to a psychiatric service animal. The Department requests comment as to whether the Department should recognize this option and, if so, whether the availability of this option would mitigate any negative impact of this proposal on users of emotional support dogs.

Alternatively, if the Department decides not to adopt the definition of service animal as proposed (and instead adopts a final rule that continues to recognize emotional support animals), the Department requests comment on whether emotional support animals are more likely to misbehave in comparison to traditional service animals because they have not been trained to mitigate a disability. While one solution suggested by commenters is to permit airlines to require stricter documentation for emotional support animal users ( e.g., forms completed and signed by a medical practitioner such as a doctor or nurse practitioner, verification of in-person treatment by a medical practitioner, and verification that the patient has or will receive ongoing treatment from the medical practitioner), others expressed concern that these stricter measures may impose unnecessary burdens on passengers with disabilities. The Department requests comment on whether stricter documentation for emotional support animal users would be effective in decreasing the likelihood of fraud by businesses seeking to profit by guaranteeing emotional support animal documentation to individuals traveling with pets.

The Department also seeks comment on how limiting emotional support animals to dogs and cats might impact individuals with disabilities who rely on other species of animals to accommodate their disability. It is the Department's understanding that dogs currently represent the majority (approximately 90 percent) of service animals transported on aircraft (including emotional support animals) and cats are the second largest species used as emotional support animals. As such, the Department seeks comment on how individuals who rely on emotional support cats would be impacted should the Department decide not to recognize emotional support animals or only recognize emotional support dogs.

Finally, if the Department decides not to adopt the definition of service animal as proposed (and instead adopts a final rule that continues to recognize emotional support animals), the Department seeks comment on whether airlines should be allowed to require that emotional support animals be contained in an FAA-approved in-cabin pet carrier in the airport and on the aircraft and whether providing passengers the ability to open the carrier and touch the animal is sufficient disability mitigation, even if the animal is required to remain in its carrier for the duration of a flight. The Department also seeks comment on whether to allow airlines to accept only those emotional support animals that fit in in-cabin pet carriers that are consistent with applicable FAA regulations and, if so, the impact of limiting the size of emotional support animals. Finally, the Department seeks comment on whether limiting emotional support animals to one per passenger would sufficiently mitigate a passenger's disability on a flight or at the passenger's destination.

The Department's current ACAA regulation allows airlines to treat psychiatric service animals and emotional support animals differently from other animals that assist individuals with disabilities. 69 Similar to emotional support animals, airlines are permitted to require psychiatric service animal users to provide medical documentation to prove the passenger's need for the psychiatric service animal, to provide 48—hours advance notice prior to travel, and check-in one hour before the check-in time for the general public. 70

In the ANPRM, the Department solicited comment on whether it should amend its service animal regulation to ensure individuals traveling with psychiatric service animals are not subject to more burdensome requirements than passengers traveling with other service animals that do work or perform a task to mitigate a disability. More specifically, the Department sought comment in the ANPRM on whether it should amend its service animal regulations no longer to permit airlines to require medical documentation, 48—hours advance notice of travel, or check-in in one hour before the general public for psychiatric service animal users. 71

The Department also requested comment on whether there may be a valid basis for allowing airlines to treat individuals traveling with psychiatric service animals differently from individuals traveling with traditional service animals. 72 The Department inquired about the practical implications of no longer permitting airlines to require medical documentation from psychiatric service animal users if the ACAA rule were to treat psychiatric service animals like other service animals. 73 The Department sought comment in the ANPRM on whether airline personnel would be able to distinguish between a psychiatric service animal and an emotional support animal should the Department amend its regulation to treat psychiatric service animals like other service animals that do work or perform tasks. 74 Further, to gauge whether the problem of individuals' falsely claiming to have a mental-health-related condition is greater than the problem of individuals' falsely claiming other hidden disabilities, such as a seizure disorder, to avoid paying airline pet fees, the Department sought comment on what, if any, experience airlines have had with passengers' claiming to have a seizure disorder, diabetes, or non-mental-health-related condition, and fraudulently attempting to travel with their pets as service animals. 75 In addition, the Department sought feedback on alternatives to a medical documentation requirement that would prove the passenger's need for a psychiatric service animal. 76

Most commenters support an ACAA definition of a service animal that treats psychiatric service animals the same as other service animals that do work or perform a task. The National Disability Rights Network commented that treating psychiatric service animals the same as other tasked-trained service animals is fair because treating them differently perpetuates the myth that psychiatric service animals are inferior to service animals used to mitigate other types of disabilities. 77 Similarly, American Airlines commented that psychiatric service animals should be treated the same as other service animals trained to do work or perform a task because psychiatric service animals are professional working dogs. 78 American Airlines also commented that treating psychiatric service animals the same as other task-trained service animals would provide consistency between the DOT's ACAA regulation and DOJ's ADA regulations.

A4A urged the Department to treat psychiatric service animals the same as other task-trained service animals and no longer to recognize emotional support animals. 79 But A4A encourages the Department to dispense with the medical documentation and advance notice allowance for psychiatric service animal users for only a one-year review period. A4A reasoned that removing the documentation and advance notice allowance for psychiatric service animals may encourage pet owners, who once claimed that their pets were emotional support animals, to pivot to claiming that their pets are psychiatric service animals to avoid airline pet fees and to travel with their pets in the cabin. A4A suggests allowing airlines to collect data during the one-year review period and if enough evidence exists to suggest that some pet owners are falsely representing their pets as psychiatric service animals after the one-year period, airlines should be allowed to request medical documentation, and proof of training and/or vaccination from psychiatric service animal users.

Some U.S. carriers disagree with treating psychiatric service animals the same as traditional service animals and encourage the Department to continue to allow airlines to require documentation and advance notice from psychiatric service animal users. United Airlines states that the Department should “retain (and consider strengthening) documentation provisions for [psychiatric service animals] in the event that it becomes apparent that individuals without disabilities are attempting to assert that their untrained pets are [psychiatric service animals].”  80 Spirit Airlines commented that psychiatric service animals do not receive the same level of training as “true” service animals, which are subjected to training to attend to their 'handlers' needs, specifically in the area of obedience training. 81 Spirit Airlines also expressed concerns that dispensing with the documentation requirement for psychiatric service animals would result in more animals being transported for free as airlines would only be able to rely on a passenger's verbal assurances that the animal was a service animal and not a pet.

As discussed above, the Department proposes to define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. Because psychiatric service animals are trained to do work or perform tasks for an individual with a disability, the Department proposes to treat psychiatric service animals the same as other service animals trained to do work or perform tasks. The Department proposes this change not only to harmonize DOT's ACAA service animal definition with DOJ's ADA service animal definition, which, as noted above, defines a service animal as one that is individually trained to do work or perform tasks for the benefit of an individual with a disability, but also because the rationale for having a different regulatory requirement for users of psychiatric service animals is weak. The current medical documentation, 48 hours' advance notice, and check-in requirements for psychiatric service animal users were adopted in the Department's 2008 amendment to the ACAA rule to address concerns raised about passengers falsely claiming to have a mental health condition in order to pass off their pets as service animals. While the Department is aware of concerns about passengers who falsely claim to have a mental health condition that may require the use of a service animal, unscrupulous passengers may also falsely claim to have other hidden disabilities such as seizure disorder or diabetes to pass off their pets as service animals and avoid paying airline pet fees. Thus, we believe that the justification for treating service animal users with mental or emotional disabilities different from service animal users with other hidden disabilities is currently lacking.

If the rule is adopted as proposed, the Department would monitor the experience of airlines in accommodating the use of service animals for those passengers with mental-health needs who depend upon such service animals. We would consider revisiting whether it is reasonable and appropriate to allow additional requirements for the use of such animals if there is a demonstrated need—for example, if there is a notable increase in instances of passengers falsely representing pets as mental-health-related service animals.

The Department's current regulation allows airlines to determine whether factors preclude a given service animal from being transported in the cabin, including whether the animal is too large or too heavy to be accommodated in the cabin. Under this rule, an animal may be excluded from the cabin if it is too large or too heavy to be accommodated in the specific aircraft at issue.

However, the Department's guidance on the issue of a service animal's encroaching on the foot space of a passenger is not clear. DOT has previously stated that service animals may be “placed at the feet of a person with a disability at any bulkhead seat or in any other seat as long as when the animal is seated/placed/curled up on the floor, no part of the animal extends into the main aisle(s) of the aircraft, the service animal is not at an emergency exit seat, and the service animal does not extend into the foot space of another passenger seated nearby who does not wish to share foot space with the service animal.”  82 DOT has also stated that a service animal may need to use a reasonable portion of an adjacent seat's foot space that does not deny another passenger effective use of the space for his or her feet by taking all or most of the passenger's foot space. 83 The Department advised airlines to seek out and seat the individual with a disability next to a passenger willing to share foot space with the animal. The Department also advised airlines to reseat passengers traveling with a service animal in a location on the aircraft where the service animal can be accommodated— e.g., next to an empty seat. Finally, DOT advised airlines that if there are no alternatives available to enable the passenger to travel with the service animal in the cabin on that flight, the carrier should offer the passenger the option of either transporting the service animal in the cargo hold or on a later flight with more room. 84

In the ANPRM, the Department sought comment on whether to allow airlines to limit the size of service animals that travel in the cabin, and the implications of such a decision. 85 Airlines had previously indicated to the Department that some passengers have felt coerced when asked by the airline, in front of other passengers on aircraft, to share their space with a service animal and they may have agreed to share space even if they did not wish to so. As such, the Department sought comment on whether passengers find it burdensome to share foot space on the aircraft with service animals.

The comments received by disability advocates uniformly discourage the Department from adopting a rule that would allow airlines to limit the size of service animals on an aircraft. Disability advocates argue that aircraft seat sizes have shrunk, and continue to shrink, and that the Department should adopt a rule that prohibits airlines from decreasing seat size rather than allowing airlines to limit the size of service animals. Furthermore, disability advocates argue that there is little evidence to show that large service animals pose a greater safety risk than small service animals on aircraft and that limiting the size of service animals would be disproportionately unfair to individuals with mobility impairments who use larger animals to mitigate their disability.

Airlines, however, argue that it is unfair to paying passengers to be forced to share their limited space on the aircraft with a large service animal. Airlines also believe that limiting the size of service animals would decrease burdens on flight attendants, as flight attendants must spend time rearranging passengers to accommodate large animals and flight crew frequently suffer the ire of passengers unhappy with having to move or being asked to share their foot space with an animal.

Airlines also argue that the carriage of large animals in the cabin violates FAA safety requirements, which require that aisles and other passageways be free of obstructions to allow all passengers egress in the case of an emergency. A4A, RAA, and IATA commented that allowing large untrained emotional support animals in the cabin threatens the safety and health of other passengers on aircraft. 86 Finally, AFA commented that airlines should be allowed to limit the size of service animals on aircraft, but the limitation should be based on the aircraft type and the available space in the cabin. 87

The Department proposes to allow airlines to place size limitations on service animals to the extent that the animal must fit within the passenger's foot space on the aircraft or can be placed on the passenger's lap. While the Department is sensitive to the fact that many large service animals, such as German Shepherds, Golden Retrievers, and Labrador Retrievers, tend to accompany individuals with disabilities, particularly individuals with mobility impairments, these animals are often trained to fit into small spaces. The Department seeks comment on its proposal to limit the size of service animals based on whether the animal can fit into the foot space afforded to the passenger on that particular aircraft type, or on whether the service animal is no larger than a lap-held child and can be placed on the passenger's lap.

In instances where an animal is too large to fit in the passenger's foot space or be placed on the passenger's lap, the Department proposes to require airlines to seat the passenger traveling with a service animal next to an empty seat within the same class of service where the animal can be accommodated, if such a seat is available. If there are no empty seats available to allow a passenger to travel with the service animal in the cabin on the passenger's scheduled flight, the Department proposes to require airlines to provide passengers the option to transport the animal in the cargo hold for free, or to transport the passenger on a later flight with more room if available. The Department seeks comment on these proposals.

Under the Department's current service animal regulation, it is not clear how many service animals may accompany a single passenger on an aircraft. Section 382.117(a) states that an airline “must permit a service animal to accompany a passenger with a disability” (emphases added). While this language could be read as suggesting that an airline is only required to transport one service animal per passenger, section 382.117(i) references guidance concerning carriage of service animals, which does not have independent mandatory effect, but rather describes how the Department understands the requirements of section 382.117. That guidance states, “A single passenger legitimately may have two or more service animals.” See 73 FR 27614, 27661 (May 13, 2008). In its Final Statement of Enforcement Priorities Regarding Service Animals, the Department's Enforcement Office stated that it would focus its enforcement efforts on ensuring that airlines are not restricting a single passenger from traveling with a total of three service animals if needed. 88 While the Department's disability regulation does not specify how many service animals may travel with a passenger with a disability, it does not allow airlines to deny transport to a service animal accompanying a passenger with a disability because of a limit on the total number of service animals that can be on a flight. 89

In the ANPRM, the Department sought comment on whether to limit the number of service animals that a single passenger with a disability may carry onboard a flight and how many service animals should be permitted to accompany a single passenger with a disability. DOT also sought comment on whether airlines should allow passengers to justify the need for more than a single animal, and what the parameters of such a justification should be. 90

Most disability advocates commented that airlines should be required to allow at least two service animals to travel with a single passenger if needed. Advocates reason that some individuals have multiple disabilities and that while some animals have been trained to perform multiple tasks, some individuals with disabilities may need animals that are focused on mitigating a specific disability for the mitigation to be effective. Airlines, however, commented that they should be permitted to limit the number of service animals traveling with a passenger to one service animal. Airlines argue that allowing one service animal per passenger helps support safety and would help to avoid disruptions in the cabin. Airlines also argue that given the space afforded to individual passengers on aircraft, transporting more than one service animal could be problematic.

The Department proposes to limit the number of service animals traveling with a single passenger with a disability to no more than two service animals. The Department acknowledges comments from disability rights advocates that certain individuals with disabilities require more than one service animal, and while a single service animal may be trained to perform more than one mitigating function, more than one service animal may be needed to assist an individual on the aircraft or at the passenger's destination if the passenger uses the animals for lengthy periods of time ( e.g., if one animal may need a break from work). Furthermore, disability advocate commenters noted that while a service animal may be trained to assist an individual with multiple disabilities, a passenger's animal may need to focus on mitigating one disability at a time for the mitigation to be effective so multiple animals may be needed at once. For those passengers who seek accommodation for two service animals, the airline would be permitted to require the passenger to complete two separate attestation forms, one for each animal, to verify that each qualifies for appropriate accommodation as a service animal to accompany the passenger on the flight.

In response to the carriers' argument regarding the lack of space in the cabin to accommodate a passenger traveling with two service animals, the Department notes that this NPRM does not propose that an airline be required to provide an individual with two service animals with additional space but would require the airline to allow the individual to use all his or her allotted space without encroaching into the space of another passenger. Airlines may refuse transportation to the animals in the cabin if the animals would not safely fit in the passenger's lap or foot space. The Department seeks comment on its proposal to limit the number of service animals traveling with a single individual with a disability to two animals, specifically including whether there are compelling safety-related reasons to limit each qualifying passenger to no more than one service animal.

The Department's current rule does not clearly specify whether or how airlines may restrict the movement of service animals in the cabin. However, the Department has issued guidance that service animal users are expected under the Department's current ACAA service animal rule to maintain control of their animals both in the airport and on aircraft. In the Final Statement of Enforcement Priorities Regarding Service Animals, the Department's Enforcement Office also noted that, in general, tethering and similar means of controlling an animal that are permitted in the ADA context would appear to be reasonable in the context of controlling service animals in the aircraft cabin.

Because of the potential safety risks associated with transporting unrestrained animals, including both the risks to the well-being of other passengers and crew as well as the risks of interfering with the safe and efficient operation of the aircraft, DOT sought comment on whether its service animal rule should explicitly state that service animals must be harnessed, leashed, tethered, or otherwise under the control of its handler or whether it is reasonable for airlines to make this requirement a condition of providing air transportation. 91 DOT also sought comment on whether a leash, tether, harness or other restraint device would increase safety on aircraft. 92 Finally, the Department sought general feedback on the advantages and disadvantages of adopting such a requirement. 93

Airlines, disability advocates, organizations, and individual commenters were unified in their support that the Department adopt a requirement that requires service animals to be harnessed, leashed, tethered, or otherwise under the control of the service animal user. A4A, RAA, and IATA, commented that if harnessing, leashing, and tethering is appropriate for trained animals under the ADA, a similar requirement is appropriate for service animals on aircraft. 94 A number of commenters also recognized that a control requirement is especially crucial in the airport/aircraft environment given the high-stakes nature of air transportation.

Some airlines recommended muzzling as a form of control, although some advocates discouraged muzzling as an acceptable restraint measure because it may limit a service animal's ability to breathe properly. But even those advocacy groups that opposed muzzling supported a requirement that service animals be under the control of an individual with a disability at all times. Some disability advocates also recommend that DOT, similar to DOJ, should permit service animal handlers to exercise voice command over service animals as a means of control if a service animal needs to be free from a restraint device to mitigate a passenger's disability.

The Department proposes to allow airlines to require service animals to be harnessed, leashed, or tethered unless the device interferes with the service animal's work or the passenger's disability prevents use of these devices. In that case, the carrier must permit the passenger to use voice, signal, or other effective means to maintain control of the service animal. This proposal is similar to the requirement in DOJ's rule implementing the ADA, which requires service animals to be harnessed, leashed or tethered while in public places unless the device interferes with the animal's work. 95

While the Department always anticipated that a service animal would be under the constant control of its handler during air transportation, the Department was persuaded to propose that the rule include a provision on service animal restraints given the increased concern of animal misbehavior on aircraft. Specifically, the Department is proposing to allow airlines to determine that an animal is not a service animal if it is not under the control of its handler. The Department's proposal to allow airlines to determine that an animal is not a service animal if it is not under the control of its handler differs from DOJ's approach. DOJ's regulations do not allow covered entities to determine that such animal is “not a service animal.” DOJ's ADA regulations do, however, allow covered entities to exclude a service animal if the animal is out of control and the animal's handler does not take effective action to control it. 96

In addition, the DOT Air Transportation Service Animal Behavior and Attestation Form, which airlines may require of passengers with disabilities seeking to travel with a service animal on aircraft, includes a statement that the passenger understands that the animal must be harnessed, leashed, or tethered, unless the passenger is unable because of a disability to use a harness, leash or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks. In such cases, the animal must otherwise be under the handler's control through voice, signals, or other effective means.

The Department proposes to define a service animal handler as a qualified individual with a disability who receives assistance from a service animal(s) that does work or performs tasks that are directly related to the individual's disability, or a safety assistant, as described in section 382.29(b), 97 who accompanies an individual with a disability traveling with a service animal(s). The service animal handler is responsible for keeping the service animal under control at all times, and caring for and supervising the service animal, which includes toileting and feeding. The DOT proposed definition of a service animal handler differs from DOJ's technical assistance, which states that a service animal handler can be either an individual with a disability or a third party who accompanies the individual with a disability. 98 The Department proposes to limit service animal handlers to individuals with disabilities and their safety assistants, which are required to travel with those individuals with a disability who are unable to assist in their own evacuation from the aircraft, in order to make clear that service animal trainers traveling with trained service animals not serving as a safety assistant for a passenger with a disability, and other passengers traveling with an individual with a disability on aircraft, would not be considered service animal handlers under the ACAA rules. The Department recognizes that there may be occasions where an individual with a disability who does not require a safety assistant must rely on a third party to control their service animal during air travel, e.g., a small child who uses a service animal or a passenger with a disability capable of assisting with their own evacuation, but incapable of controlling or caring for their service animal. The Department seeks comment generally on its decision to define the term “service animal handler” and seeks comments on its proposed definition. The Department also seeks comment on what impact, if any, its exclusion of third parties as service animal handlers might have on individuals with disabilities traveling on aircraft with a service animal.

The Department seeks comment on its proposal to allow airlines to require that service animals be under the service animal user's constant control, via restraint devices or, if the restraint device interferes with the animal's work or the handler is unable because of a disability to use the restraint device, by voice command, signals, or other effective means. The Department also seeks comment on whether in-cabin pet carriers that are consistent with applicable FAA regulations should be included in the rule as an optional service-animal restraint device if the final rule recognizes emotional support animals.

While the Department's current rule sets forth the type of medical documentation that airlines may request from emotional support and psychiatric service animal users to reduce likelihood of abuse by passengers wishing to travel with their pets, the regulation does not explicitly permit or prohibit the use of additional documentation related to a service animal's vaccination, training, or behavior. Moreover, while Part 382 permits airlines to determine, in advance of flight, whether any service animal poses a direct threat, the rule does not clearly indicate how airlines must make that assessment—for example, behavioral assessments or information from a service animal user's veterinarian.

Airlines have asserted that the risk to passenger safety is increasing. In the ANPRM, the Department sought data on the number of service animal-related incidents of misbehavior on aircraft and what amount of increase in animal misbehavior was sufficient to warrant a requirement for animal health records and behavior forms. 99 The Department also sought comment on whether it should amend its service animal regulation to allow airlines to require that service animal users attest that their animal can behave properly in a public setting, whether airlines should be permitted to require the attestation in advance, the impacts that a behavior attestation requirement would have on individuals with disabilities, and alternatives to a behavioral attestation that would allow airlines to assess an animal's behavior. 100

The Department was interested in knowing whether a behavior attestation would reduce the safety risk for passengers, crewmember, and other service animals on aircraft. Furthermore, recognizing that DOJ's ADA regulation prohibits covered entities from requiring service animal users to provide documentation, the Department sought comment on whether DOT should have a different standard from the ADA given the unique nature of air transportation. 101

With respect to animal health records, the Department sought comment on what burdens, if any, would exist should the Department allow airlines to require individuals with disabilities to submit veterinary forms and related animal health documentation. 102 The Department also sought comment on whether an airline should be permitted to require animal health forms as a condition of travel, or whether the airline should be required to conduct an individualized assessment of the animal's behavior based solely on its observations to assess whether the animal poses a direct threat to humans, before requiring these forms. 103 Finally, the Department sought comment on whether airlines should be able to require passengers to obtain signed statements from veterinarians about an animal's behavior.

The majority of public commenters and disability advocacy organizations that commented on this issue oppose the use of behavior/training attestations as a measure of ensuring that a service animal has been trained to, or will, behave appropriately in public and on the aircraft. These groups argue that attestation documents are ineffective and do not provide realistic assurances that an animal will behave appropriately as passengers can easily lie that their animal has been trained to behave properly in public. Others who oppose this form argue that filling out behavior/training attestations is burdensome as each airline has its own unique form, and it is difficult to follow each airline's individual policy. Furthermore, some groups note that some airline websites make it difficult to submit these forms to the airline prior to travel. These groups also oppose behavior/training attestations on the basis that these practices are inconsistent with the ADA and that service animal users do not have to provide attestations to travel by train or other modes of transportation.

Some disability advocates are in favor of behavior/training attestations, but only for emotional support animals arguing that emotional support animals, which are not trained to do work or perform a task, have likely received less, if any, public-access training. Further, a few disability advocates oppose the behavior/training attestations that some airlines currently have in place, but they support a “decision tree” approach, which is a sequence of questions that service animal users would be prompted to complete as a condition of travel. As explained in a comment filed by PSDP, the decision-tree approach is designed to confirm that service animals have been trained to behave properly on aircraft and to ensure that users are educated on the requirements for traveling with service animals on aircraft. 104 Finally, Autism Speaks is in favor of behavior/training attestations for all service animal users but urges the Department to develop unified attestation requirements to decrease confusion for service animal users. 105

Some airlines broadly support behavior and training attestations for service animal users, or support attestations for only emotional support and psychiatric service animal users. These airlines argue that behavior/training attestations eliminate the need for airline personnel to observe and evaluate a service animal's behavior in the airport, a task that airline personnel are often not qualified to perform and that is burdensome given their primary responsibilities. Furthermore, these airlines argue that the Department's service animal guidance currently requires that service animals be trained to behave appropriately in public, and behavior/training attestations are a means of ensuring that service animal users are aware of this requirement and aware that if their animal is not trained, the animal may be removed from the aircraft or treated like a pet. Some airlines, however, only support behavior/training attestations in the event that the Department continues to recognize emotional support animals.

The majority of disability advocates who commented oppose a requirement that allows airlines to require service animal users to produce animal health information as a condition of transportation. These groups argue that requiring service animal users to produce animal health information, which must be completed by a third party, is costly and would pose unnecessary burdens on individuals with disabilities, especially on those service animal users who are not currently required to produce any documentation when traveling on aircraft. Furthermore, these groups argue that animal health information is not helpful in determining if an animal poses a direct threat. Finally, these groups argue that requiring animal health information is excessive, as airlines have provided no evidence that passengers on aircraft have contracted rabies or other diseases from service animals or that service animal users have refused to provide animal health information in cases where a service animal has bitten or injured someone on an aircraft.

Some disability rights advocates are also concerned that if service animal users are required to provide airlines with animal health records, users will be unable to check-in for travel online or travel seamlessly through the airport to their gate. While there are a few advocacy organizations that support an animal health form requirement for service animal users, this support is limited to information regarding the animal's rabies vaccinations.

Conversely, many airlines, an animal health organization, a flight attendant association and most individual commenters who commented on this issue support a requirement that would allow airlines to require animal health information from service animal users. Similar to the rationale used by airlines in support of behavior/training attestations, airlines argue that animal health information is a reasonable means to determine if an animal presents a direct threat to the health and safety of individuals on aircraft. Airlines also argue that in the event a service animal bites an individual on an aircraft, proof of up-to-date vaccinations will prevent the need for the injured passenger to undergo unnecessary and painful treatments for certain diseases, e.g., rabies, although according to the Center for Disease Control and Prevention (CDC), any dog that bites an individual should be assessed and monitored by a local or state health department over a 10-day period irrespective of whether there is proof that the animal has been vaccinated. Airlines also argue that providing animal health information is not burdensome as most, if not all, States and localities already require that animals be vaccinated.

In a joint comment filed by Avianca, Avianca Costa Rica, Aviateca, TACA, and TACA Peru, these carriers note that many “foreign carriers, currently have a general requirement for veterinary certification as a condition of transport.” These carriers further state that “[m]any foreign countries require veterinary certification for all animals entering the country, including all service animals” and that “DOT should clarify in any rulemaking that carriers may require veterinary certification for all service animals as a condition for entry into all countries that require such certification.”  106

One animal health organization supports allowing airlines to require proof of rabies vaccinations arguing that these vaccinations are necessary to protect both animal and public health. 107 Furthermore, certain airline organizations support an animal health record allowance if the Department decides to recognize emotional support animals. These organizations reason that emotional support animal users should provide information on their animal's health as a matter of public safety and public health as these untrained animals are in close proximity to passengers, airline crewmember, other staff, and, sometimes, other animals. While the American Association of Airport Executives (AAAE) is in favor of allowing airlines to verify that an animal has been vaccinated, this organization believes that if the Department chose not to recognize emotional support animals, allowing airlines to require proof may not be necessary as the risk to passengers would automatically decrease. 108

After carefully reviewing the comments received, the Department is proposing to allow airlines to require individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal's behavior, training, and health. Also, if the service animal would be on a flight segment that is longer than 8 hours, the Department is proposing to allow a standard form attesting that the animal will not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk. The Department proposes that these forms be the only forms of documentation that an airline can require of a passenger traveling with a service animal. In other words, under this proposed rule, an airline would not be required to ask a passenger traveling with a service animal for any documentation but, if they choose to do so, the airline must use the forms established by the Department. The Department seeks comment on whether airlines should be allowed to create their own forms or if uniformity would be more helpful. Are there other existing forms that could be utilized such that the establishment of departmental forms would be unnecessarily duplicative?

First, the Department proposes to allow airlines to require passengers seeking to travel with service animals to submit to the airline, as a condition of accepting the animal as a service animal for travel, a DOT Air Transportation Service Animal Behavior and Training Attestation Form, which is a form to be completed by the passenger. This form would provide assurance that the service animal traveling on the aircraft has been individually trained to do work or perform tasks for the benefit of the passenger with a disability and has been trained to behave properly in public, and that the user is aware that the service animal must be under his or her control at all times. The Department agrees with comments from airlines that airline personnel are often unable to observe service animals sufficiently prior to a flight in the fast-paced airport environment to determine whether the service animal would be a direct threat to the health or safety of others. Further, the Department believes that the form would serve as a deterrent for individuals who might otherwise seek to claim falsely that their pets are service animals, as those individuals may be less likely to falsify a Federal form. The Department seeks comment on its proposal to allow airlines to require all service animal users to provide this form to airlines and on whether this form would be effective in ensuring that service animals have been properly trained and in deterring individuals from misrepresenting their pets as service animals on aircraft.

The Department understands that this form would impose a burden on those individuals traveling with traditional service animals who are not currently required to provide documentation. The Department seeks comment from the public on ways to reduce the burden that the Department's behavior and training form would have on passengers with disabilities. Should airlines be allowed to require the form each time a service animal user travels, even for round-trip flights? What medium should airlines use, e.g., hardcopy, electronic, email, to provide and collect this form from passengers with disabilities? Also, are there privacy concerns that airlines should consider? Furthermore, the Department seeks comment on whether the questions in this form would help an airline determine whether an animal has been adequately and properly trained, and whether the form adequately educates passengers on how a service animal is expected to behave, the consequences of a misbehaving service animal, and the seriousness of falsifying the DOT form. The Department seeks comment on whether it should allow airlines to require only emotional support animal users to complete such an attestation form, in the event the Department were to continue to require airlines to transport emotional support animals. Finally, the Department seeks comment on the general content and layout of the form, which is provided below.

The USPTO proposes to amend the rules of practice in patent cases at 37 CFR 1.27 to clarify and expand exceptions to the rule pertaining to government use licenses and their effect on small entity status for purposes of paying reduced patent fees so as to support independent inventors, small business concerns and nonprofit organizations in filing patent applications. The regulations at 37 CFR 1.27 currently have two basic exceptions—at paragraphs (a)(4)(i) and (ii)—to the general rule that every party holding rights to an invention must qualify as a small entity under 37 CFR 1.27 in order for small entity status to be claimed in a patent application.

The first exception—in section 1.27(a)(4)(i)—is for a government use license that a Federal employee inventor is obligated to grant if he/she is allowed to retain title to the workplace invention pursuant to a rights determination under Executive Order 10096. The Office is proposing to amend the regulations to specify that this exception applies to the government use license under 15 U.S.C. 3710d(a) a Federal employee, including an employee of a Federal laboratory, is obligated to grant if he/she is allowed to retain title to the workplace invention. It also proposes to expand the exception to cover a government use license to a Federal agency arising from an inventor's retention of rights under 35 U.S.C. 202(d), where the inventor is the employee of a small business or nonprofit organization contractor performing research under a funding agreement with the Federal agency, and the government use license is equivalent to that specified in 35 U.S.C. 202(c)(4). Retention of rights by the inventor under 35 U.S.C. 202(d) becomes possible when the contractor performing research under a federal funding agreement does not elect to retain title to the invention and the Federal agency is not interested in pursuing the patents rights either. Provided the Federal agency receives no more than the government use license and there is no other interest in the invention held by a party not qualifying as a small entity, the inventor who is otherwise qualified for small entity status, is not prohibited from claiming small entity status as a result of retaining rights under 35 U.S.C. 202(d) to his or her invention.

The second exception—in section 1.27(a)(4)(ii)—provides that a small business concern or nonprofit organization, which is otherwise qualified as a small entity for purposes of paying reduced patent fees under 37 CFR 1.27, is not disqualified as a small entity because of a license to a Federal agency pursuant to 35 U.S.C. 202(c)(4). Section 202(c)(4) reserves to the Federal agency, a government use license in any invention made by a “contractor” ( e.g., small business concern or nonprofit organization) pursuant to activities under a “funding agreement,” as those terms are defined in 35 U.S.C. 201(b) and (c), when the contractor elects to retain title to a subject invention. It has been brought to the USPTO's attention that much uncertainty exists as to whether the paragraph (a)(4)(ii) exception applies in cases where there is a Federal employee co-inventor. In response, this rule proposes to amend 37 CFR 1.27(a)(4)(ii) to refer to 35 U.S.C. 202(e)(1), which permits the Federal agency, in the case of a Federal employee co-inventor to “license or assign whatever rights it may acquire in the subject invention to the nonprofit organization, small business firm, or non-Federal inventor. . .” Section 1.27(a)(4)(ii) would be clarified to explicitly state that when the Federal agency takes action under 35 U.S.C. 202(e)(1) to place all ownership rights with the contractor, leaving to the Federal agency only the government use license under 35 U.S.C. 202(c)(4), the exception under section 1.27(a)(4)(ii) would still apply. This is considered appropriate given that a small entity contractor joint owner of a patent has the right to “make, use, offer to sell, or sell the patented invention within the United States, or import the patented invention into the United States, without the consent of and without accounting to the other owners” pursuant to 35 U.S.C. 262. Furthermore, Federal agency action to assign rights under 35 U.S.C. 202(e)(1) leaves to the Federal agency only the government use license, which is what the Federal agency would have acquired had there been no Federal employee co-inventor.

Cooperative research and development agreements (CRADAs) are another important tool to promote collaboration between Federal agencies and non-Federal parties, including those qualified as small entities. In support of research consistent with the mission of the Federal “laboratory” as that term is defined in 15 U.S.C. 3710a(d)(2), under CRADAs, the Government, through its laboratories, provide personnel, facilities, equipment, intellectual property or other resources, except for funds to non-Federal parties, and the non-Federal parties provide their own resources, which may include funds, for the collaborative activities. A CRADA may stipulate that the collaborating party assumes responsibility for the filing and prosecution of a patent application directed to a joint invention made under the CRADA and retains title to such invention, with the goal of achieving the practical application of technology advancements through commercialization. The Federal law providing for CRADAs (15 U.S.C. 3710a) reserves an obligatory government use license in exchange for ownership rights retained by the collaborating party much the same way as discussed above with respect to Federal funding agreements and government employee inventions. It was reported that some small businesses and nonprofit organizations are hesitant to enter into CRADAs with the Federal Government because, under the current rules, they would automatically lose their small entity status and would have to pay undiscounted patent fees as a result of granting the government use license or the government's interest in a joint invention. In response to these concerns and in order to encourage small business and nonprofit organization collaborating parties to take the initiative for filing and prosecuting patent applications for their inventions at no expense to the government, this rule proposes to expand the exceptions in 37 CFR 1.27(a)(4) to add a new section 1.27(a)(4)(iii) that would cover government use licenses that arise in certain situations when an otherwise qualifying small entity retains ownership rights to its invention made under a CRADA. This expansion of the government use license exception as it pertains to federally supported research is consistent with the President's “Return on Investment Initiative” as it applies to transferring technology to the private sector that originated from federally funded research or non-funded research performed at a Federal agency laboratory. See NIST Special Publication 1234 titled “Return on Investment Initiative for Unleashing American Innovation” (April 2019).

Background: The Patent and Trademark Law Amendments Act, Public Law 96-517, 94 Stat. 3015 (Dec. 12, 1980)—commonly referred to as the Bayh-Dole Act—added chapter 18 (sections 200 et seq. ) to title 35 of the United States Code to “encourage maximum participation . . . in federally supported research and development efforts” (35 U.S.C. 200) by giving small businesses and nonprofit organizations the ability to elect to retain title to their inventions made under federal funding agreements. For more than thirty-five years the USPTO has provided the exception—now at 37 CFR 1.27(a)(4)(ii)—for Bayh-Dole Act government use licenses under 35 U.S.C. 202(c)(4). Similar to the Bayh-Dole Act, the Stevenson-Wydler Technology Innovation Act of 1980, Public Law 96-480, 94 Stat. 2311 (Oct. 21, 1980), as amended by the Federal Technology Transfer Act of 1986, Public Law 99-502, 100 Stat. 1785 (Oct. 20, 1986) (“FTTA”), seeks to promote development and utilization of technologies made with federal support. Unlike the Bayh-Dole Act whereby support is in the form of federal funding, the FTTA, among other things, authorized CRADAs as the basis for research collaboration between Federal agencies and private sector businesses and organizations, including small business concerns and nonprofit organizations. Unlike 35 U.S.C. 202(c)(4) government use licenses, the patent rules have never provided an exception for government use licenses reserved to the government under CRADAs in exchange for the small business concern or nonprofit organization's retention of ownership rights to its invention made during research at the partnering Federal laboratory. In response to feedback from Federal agencies concerning the importance of the small entity discount to promote collaboration with small businesses and nonprofit organizations and technology transfer efforts of Federal agencies and laboratories, the USPTO is proposing to revise the patent rules to add a government use license exception that applies to small entities which make an invention under a CRADA with a Federal laboratory.

The statutory provisions for CRADAs, similar to those for federal funding agreements under the Bayh-Dole Act, reserve to the Federal Government use licenses for inventions made under a CRADA. 35 U.S.C. 202(c)(4) which provides the Bayh-Dole Act version of the government use license, and the CRADA government use license found in 15 U.S.C. 3710a(b)(2) and 3710a(b)(3)(D), are practically identical in scope. As set forth in 35 U.S.C. 202(c)(4):

Under the Bayh-Dole Act provisions, the awardee of federal funding is called a “contractor.” Under the CRADA provisions of the FTTA, the term used for a participating non-Federal party is “collaborating party.” In addition, the CRADA government use license refers to “the laboratory” or “the Government” as the recipient, rather than “the Federal agency.”

Currently, the patent rules provide a government use license exception only for such licenses arising under 35 U.S.C. 202(c)(4). The proposed change to 37 CFR 1.27(a)(4) would add exceptions for government use licenses that may arise under a CRADA pursuant to 15 U.S.C. 3710a(b)(2) or 3710a(b)(3)(D). Section 3710a(b)(2) concerns the use license reserved to the government for an invention made solely by employees of the collaborating party, and section 3710a(b)(3)(D) concerns the use license reserved to the government when the laboratory waives rights to a subject invention made by the collaborating party or employee of the collaborating party. The proposed change would add to 37 CFR 1.27 a new paragraph (a)(4)(iii) providing an additional exception for government use licenses under 15 U.S.C. 3710a(b)(2) and 3710a(b)(3)(D) for inventions made by small entities under a CRADA with a Federal laboratory.

Further, with respect to the current exception for the government use license under 35 U.S.C. 202(c)(4), it has been reported to the USPTO that small business firms and nonprofit organizations have become increasingly concerned that contributions of Federal employees in joint inventions could eliminate their entitlement to small entity status. In response, the current section 1.27(a)(4)(ii) exception—the so-called “federal licensing safe harbor provision”—is proposed to be amended to clarify in a new paragraph (B) that the exception applies when there is a Federal employee co-inventor, and action is taken under 35 U.S.C. 202(e)(1) by the Federal agency. Under section 202(e)(1), the funding Federal agency may license or assign whatever rights the Federal agency acquired in the subject invention, made by the contractor with a Federal employee co-inventor, to the contractor, in accordance with the provisions of chapter 18 of title 35, which include a government use license. As proposed to be amended, the section 1.27(a)(4)(ii) exception would explicitly apply, under new paragraph (B), to such situations.

When an employee of the small entity contractor and an employee of the Federal agency are co-inventors, the small entity contractor, by virtue of an assignment from the contractor employee or the employee's current obligation to assign, would still have an undivided ownership interest in the joint invention. The undivided interest to the joint owner is provided at 35 U.S.C. 262. The requirement for an assignment or a currently existing obligation to assign is set forth in Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., 563 U.S. 776 (2011), where the Court held: “[o]nly when an invention belongs to the contractor does the Bayh-Dole Act come into play.” Id. at 790. In addition, “. . . unless there is an agreement to the contrary, an employer does not have rights in an invention `which is the original conception of the employee alone.' ” Id at 786. Accordingly, when action is taken by the Federal agency under 35 U.S.C. 202(e)(1), the contractor could elect to retain full ownership rights. These ownership rights would be the same as those retained by a contractor under proposed new paragraph (A) of section 1.27(a)(4)(ii) which would apply when the subject invention was made solely by the small entity contractor employee(s). 35 U.S.C. 202(e) refers to this as “consolidating rights”.

Regarding the proposed new section 1.27(a)(4)(iii), which would apply to government use licenses arising under a CRADA where the small entity retains all ownership rights, paragraph (B) would be included to cover situations where the government took action under 15 U.S.C. 3710a(b)(3)(D) to waive in whole any right of ownership the government may have to the subject invention made by the small business concern or nonprofit organization. Paragraph (A) of section 1.27(a)(4)(iii) would apply to government use licenses arising in situations where the invention to which title is retained, was made solely by the employee of the small business concern or nonprofit organization. Thus consolidation of rights to a small entity collaborating party under the CRADA provision of 15 U.S.C. 3710a(b)(3)(D) would be treated similar to how consolidation of rights to a contractor under the Bayh-Dole Act provision of 35 U.S.C. 202(e)(1) are treated under 37 CFR 1.27(a)(4) as proposed to be amended. All the exceptions under 37 CFR 1.27(a)(4)(i) through (iii) would require that the government or the Federal agency receive no more than the applicable government use license and that there is no other interest in the invention held by a party not qualifying as a small entity.

New section 1.27(a)(4)(iv) is proposed to be added to specify that regardless of whether a government use license exception applies, no refund under 37 CFR 1.28(a) is available for any patent fee paid by the government. In addition, a new introductory clause is proposed to be added to 37 CFR 1.27(a)(4) which limits eligibility for any of the government use license exceptions to patent applications filed and prosecuted at no expense to the government (with the exception of any delivery expenses). To overcome any reluctance of research partners to take responsibility for seeking patent protection of the federally-supported inventions, the proposed new section 1.27(a)(4) introductory clause combined with proposed new paragraph (a)(4)(iv) should encourage small business concern and nonprofit organization contractors and collaborators to take the lead in seeking patent protection.

Although the USPTO can provide for government use license exceptions for small entity status qualification, these exceptions cannot apply to micro entities. The reason for this is that the statute authorizing micro entity patent fee discounts—35 U.S.C. 123(a)(4)—disqualifies an entity from micro entity status if they have assigned, granted, or conveyed a license or other ownership interest in the invention to an entity that exceeded the gross income limit (currently $189,537) in its previous calendar year's gross income. Because a “gross national income” is attributed to the United States each year, any government use license would run afoul of the 35 U.S.C. 123(a)(4) qualification requirement. Accordingly, a government use license may not disqualify an applicant from a small entity status, but would disqualify the applicant from micro entity status. For consistency, this would apply to micro entity status on the “institution of higher education basis” under section 1.29(d) as well as micro entity status on the “gross income basis” under section 1.29(a). A clarifying amendment to 37 CFR 1.29 is proposed in order to explicitly reflect this.

Discussion of Regulatory Changes: These rule changes would amend 37 CFR 1.27(a)(4) to clarify and expand the exceptions to the general rule that every party holding rights to an invention must qualify as a small entity under 37 CFR 1.27 in order for small entity status to be properly claimed.

The regulations currently at 37 CFR 1.27(a)(4)(i) provide an exception for a government use license resulting from a rights determination under Executive Order 10096, wherein title to the invention is retained by a Federal employee-inventor (“a person” as defined in 37 CFR 1.27(a)(1)). That exception is proposed to be amended to acknowledge the regulations contained in 37 CFR part 501, which implement E.O. 10096. This would be accomplished by making reference in the rule to 37 CFR 501.6, which substantially incorporates the E.O. 10096 criteria for the determination of rights in and to any invention made by a Government employee. This exception, as proposed to be amended, would remain in section 1.27(a)(4)(i) under a new paragraph (A). It is also proposed to add a new paragraph (B) to section 1.27(a)(4)(i) referring to 15 U.S.C. 3710d(a) which provides for disposal of title to an invention from the Federal agency to the Federal employee-inventor, as well as the conditions under which the employee obtains or retains title to the invention subject to a government use license. Accordingly, proposed paragraphs 1.27(a)(4)(i)(A) and (B) would both relate to the government use license exception in the context of Federal employee inventors who retain title to their work inventions, subject to a government use license. It is also proposed to add to section 1.27(a)(4)(i) a new paragraph (C) for government use licenses to a Federal agency resulting from retention of rights by the inventor under 35 U.S.C. 202(d). This exception would be contingent upon the inventor meeting the criteria under 37 CFR 401.9 of an employee/inventor of a small business firm or nonprofit organization contractor. (37 CFR part 401 implements the provisions of the Bayh-Dole Act codified in 35 U.S.C. 200-212.) Thus, section 1.27(a)(4)(i), which applies to small entity “persons” as defined in 37 CFR 1.27(a)(1), is proposed to set forth three types of government use licenses which would not disqualify a patent applicant from claiming small entity status for purposes of paying reduced patent fees.

The regulations currently at 37 CFR 1.27(a)(4)(ii) provide an exception for certain government use licenses granted by “small business concerns” and “nonprofit organizations” as defined in 37 CFR 1.27(a)(2) and (a)(3). With respect to small business concerns and nonprofit organizations, there are generally two types of agreements they enter into with the Federal Government that are pertinent to section 1.27(a)(4)(ii) as proposed to be amended: (1) Federal funding agreements under the Bayh-Dole Act (as defined in 35 U.S.C. 201(b)), and (2) cooperative research and development agreements (CRADAs) as provided for in 15 U.S.C. 3710a. Both of these agreements require a government use license to be granted to the Federal Government by the entity or person retaining title to an invention made under such agreement. Currently, section 1.27(a)(4)(ii) only provides an exception for Bayh-Dole Act government use licenses under 35 U.S.C. 202(c)(4). To clarify the current exception, new paragraphs (A) and (B) are proposed to be added to section 1.27(a)(4)(ii). Paragraph 1.27(a)(4)(ii)(A) would apply to the situation where the invention under federal funding agreement was made solely by employees of the small business concern or nonprofit organization. Paragraph 1.27(a)(4)(ii)(B) would address situations where there is a Federal employee co-inventor. The proposed rule change would provide an additional exception, reflected in a new section 1.27(a)(4)(iii), for government use licenses for inventions made by small entities under a CRADA in situations under 15 U.S.C. 3710a(b)(2) and 3710a(b)(3)(D) wherein the small entity retains title to the invention.

A new introductory clause is proposed to be added to 37 CFR 1.27(a)(4) to limit eligibility for any of the current and newly proposed government use license exceptions to patent applications filed and prosecuted at no expense to the government, with the exception of any expense taken to deliver the application and fees to the USPTO on behalf of the applicant.

A new paragraph (a)(4)(iv) is proposed to be added to 37 CFR 1.27 to specify that regardless of whether a government use license exception applies, no refund under 37 CFR 1.28(a) is available for any patent fee paid by the government.

Section 1.29 is proposed to be amended to clarify that the government use license exceptions under 37 CFR 1.27(a)(4) do not apply for purposes of micro entity status qualification. The baseline small entity requirement under sections 1.29(a)(1) and (d)(1) cannot be met if qualification as a small entity under 37 CFR 1.27 depends on one of the government use license exceptions specified in 37 CFR 1.27(a)(4). The amendment would reflect that the statutory condition for a micro entity, specified at 35 U.S.C. 123(a)(4) cannot be met if an applicant, inventor or a joint inventor has made (or is obligated to make) a government use license for the invention for which patent protection is sought in the relevant patent application.

Request for Public Comments: The USPTO invites interested persons and entities to participate in this rulemaking by submitting written comments, data, or views on the proposed regulations addressing exceptions to the rule pertaining to government use licenses and their effect on small entity status for purposes of paying reduced patent fees, as discussed in the preamble. The USPTO has estimated the number of small entities that would be impacted by this proposed rule to be in the range of 750 to 1000, based on the number of active CRADAs reported for FY2015 and its projected growth. However, it is difficult to predict how many more entities would claim small entity status under the proposed regulations. Thus, the USPTO is interested in receiving comments from the public, particularly small businesses and non-profit organizations, about the number of additional entities that might claim small entity status because of this rule, as well as possible impacts on small entities who already qualify for small entity status for the purpose of paying reduced patent fees. The USPTO is especially interested in information related to estimates of the number of small entities that would qualify for small entity status once the rule is revised as proposed, as well as comments on any reasons why an entity would or would not claim small entity status under this rule.

A. Administrative Procedure Act: The changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) (Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.” (citation and internal quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that clarifies interpretation of a statute is interpretive.); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (DC Cir. 2001) (Rules governing an application process are procedural under the Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims.).

Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (Notice-and-comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule.”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A))). However, the Office has chosen to seek public comment before implementing the rule to benefit from the public's input.

B. Regulatory Flexibility Act: Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), whenever an agency is required by 5 U.S.C. 553 (or any other law) to publish a notice of proposed rulemaking (NPRM), the agency must prepare and make available for public comment an Initial Regulatory Flexibility Analysis, unless the agency certifies under 5 U.S.C. 605(b) that the proposed rule, if implemented, will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603, 605. For the reasons set forth herein, the Senior Counsel for Regulatory and Legislative Affairs of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

The United States Patent and Trademark Office (USPTO) is proposing to amend the rules of practice in patent cases to clarify and expand exceptions to the rule pertaining to government use licenses and their effect on small entity status for purposes of paying reduced patent fees so as to support independent inventors, small business concerns and nonprofit organizations in filing patent applications. Currently, to be entitled to pay small entity patent fees, all parties holding rights in the invention must qualify for small entity status. There are two exceptions to this rule. Both exceptions relate to “government use licenses” granted under the law by independent inventors, small business concerns, or nonprofit organizations otherwise qualifying as a small entity, where such entities retain title to their inventions. The first current exception applies when an inventor employed by the Federal Government has an obligation to grant the government use license in the workplace invention in which the inventor obtains title pursuant to a rights determination under Executive Order 10096. This exception would continue to apply and is proposed to be clarified to apply to employees of Federal laboratories under 15 U.S.C. 3710d(a). The second current exception applies when the government use license in the government-funded invention is an obligation (pursuant to 35 U.S.C. 202(c)(4)) under a funding agreement with a Federal agency. This exception is proposed to be expanded to cover the situations where a small business concern or nonprofit organization qualifying as a small entity does not elect to retain title to an invention made by its employee under a federal funding agreement, and the Federal agency allows the inventor to retain title to the federally-funded invention. In that case, a government use license (equivalent to that specified in 35 U.S.C. 202(c)(4)) is an obligation arising from the employee's retention of rights under 35 U.S.C. 202(d). The proposed change to the rule would also expand the second exception to address situations where there is a Federal employee co-inventor. It is further proposed to add a third exception to cover a government use license arising from an obligation under a cooperative research and development agreement (CRADA) with a Federal agency pursuant to 15 U.S.C. 3710a(b). Regardless of whether any of the aforementioned exceptions apply, no refund is available for any patent fee paid by the government. In addition, patent applications filed and prosecuted at government expense, will not be entitled to the small entity discount. Finally, the qualifications for the micro entity patent fee discount are proposed to be clarified. The proposed rule changes are designed to encourage persons, small businesses, and nonprofit organizations to collaborate with the Federal Government by providing an opportunity to qualify for the small entity patent fees discount for inventions made during the course of federally-funded or federally-supported research. Thus, this rule would allow more entities to qualify for the small entity fee discount, wherein these entities may qualify for a 50% reduction in fees, resulting in a substantial cost savings to the entities. Although the cost savings may be substantial, this rule is not expected to impact a large number of small entities. We estimate the number of small entities impacted by this proposed rule to be in the range of 750 to 1000, based on the number of active CRADAs reported for FY2015 and its projected growth.

These changes are procedural and are not expected to have a direct economic impact on small entities. For the reasons described above, this rule is not expected to have a significant economic impact on a substantial number of small entities.

C. Executive Order 12866 (Regulatory Planning and Review): This proposed rule has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The Office has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the proposed rule; (2) tailored the proposed rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs): This proposed rule is not expected to be an Executive Order 13771 regulatory action because this proposed rule is not significant under Executive Order 12866 (Jan. 30, 2017).

F. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

G. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

H. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this proposed rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

I. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

J. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

K. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

L. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), prior to issuing any final rule, the United States Patent and Trademark Office will submit a report containing the rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this proposed rule are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this proposed rule is not a “major rule” as defined in 5 U.S.C. 804(2).

M. Unfunded Mandates Reform Act of 1995: The proposed changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

N. National Environmental Policy Act: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

O. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions which involve the use of technical standards.

P. Paperwork Reduction Act: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This proposed rule does not involve an information collection requirement that is subject to review by the OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Notwithstanding any other provision of law, no person is required to respond to nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

For the reasons stated in the preamble, the Office proposes to amend part 1 of title 37 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On November 14, 2018 MPCA submitted a SIP revision with numerous rule updates. MPCA's submittal includes amendments to rules governing air emission permits, the removal of regulations unnecessary for Minnesota to attain and maintain the National Ambient Air Quality Standards (NAAQS), and the addition of new and previously deferred air program rules.

The following chapters of Minnesota's air program rules have undergone changes: Minnesota Rules Chapter 7000 Procedural Rules; Chapter 7002 Permit Fees; Chapter 7005 Definitions and Abbreviations; Chapter 7007 Permits and Offsets; Chapter 7008 Conditionally Exempt Stationary Sources and Conditionally Insignificant Activities; Chapter 7009 Ambient Air Quality Standards; Chapter 7011 Standards for Stationary Sources; Chapter 7017 Monitoring and Testing Requirements; and Chapter 7019 Emission Inventory Requirements. All rule changes were made under the MPCA's rulemaking authority and underwent appropriate public participation procedures as required by state law. EPA proposes to approve the majority of revisions to the Minnesota SIP and not take action on several revisions.

Section 110 of the Clean Air Act (CAA), 42 U.S.C. 7410, as amended, requires state and local air pollution control agencies to develop and submit for EPA approval, SIPs that provide for the attainment, maintenance, and enforcement of the NAAQS in each air quality control region (or portion thereof) within each state. Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirements concerning attainment and reasonable further progress toward attainment of a NAAQS or any other applicable requirement of the CAA.

Section 110(a)(2)(C) of the CAA requires that each SIP include a program to provide for the regulation of construction and modification of stationary sources as necessary to assure that the NAAQS are achieved. Specific elements for an approvable construction permitting plan are found in the implementing regulations at 40 CFR 51 subpart I—Review of New Sources and Modifications. Requirements relevant to minor construction programs are 40 CFR 51.160—51.163. EPA regulations have several specific criteria for state minor new source review (NSR) programs. Generally, state programs must set forth legally enforceable procedures that allow the state to determine if a planned construction activity would result in a violation of the state's SIP or a national standard and prevent any activity that would. In accordance with 40 CFR 51.162, the state plan must identify the responsible agency for making permitting decisions. 40 CFR 51.160 requires that the plan identify the types and sizes of facilities and installations that are subject to review under the plan, provide that sources undertaking an activity submit adequate information regarding the location, design and emission related information to enable the state to make a determination, and discuss the air quality data and dispersion or other air quality modeling used. 40 CFR 51.161 provides specific criteria for public availability of information and opportunity for public comment. Finally, 40 CFR 51.164 requires that the plan identify the administrative procedures that will be followed in making permitting decisions.

The revisions to the Minnesota SIP are intended to recodify, refine and update the Minnesota SIP, at 40 CFR 52.1220. This SIP revision addresses the requirements of section 110(a) of the CAA.

As part of the submittal, several Minnesota rules (Minn. R.) included administrative changes. These changes consist of updated or corrected citations to the referenced rules, updated control equipment codes, removal of duplicative or outdated references, spelling or grammar corrections, and minor language changes, all which have no impact on the substance of the rule. EPA proposes to approve the administrative changes and corrections into the Minnesota SIP.

Chapter 7000 contains procedural rules regarding Minnesota's air program. Changes to Chapter 7000 include the addition of Minn. R. 7000.5000 which outlines MPCA's declaration of emergency authority. In the submittal, Minnesota requested the addition of both Minn. R. 7000.5000 and Minnesota Statute (Minn. Stat.) 116.11, which pertain to the declaration of emergency and emergency powers. Minn. Stat. 116.11 provides emergency powers to MPCA, which are further discussed in Minn. R. 7000.5000. Specifically, these regulations allow the Agency to “direct the immediate discontinuance or abatement of the pollution without notice and without a hearing or at the request of the agency, the attorney general may bring an action in the name of the state in the appropriate district court for a temporary restraining order to immediately abate or prevent the pollution.” MPCA added Minn. Stat. 116.11 and Minn. R. 7000.5000 and retained Minn. R.7009.1000 through 7009.1110, as these rules provide specific actions and contingency measures during air pollution alerts that are required by CAA section 110(a)(2)(G). EPA proposes to approve the addition of Minn. R. 7000.5000 and Minn. Stat. 116.11 into the Minnesota SIP.

Chapter 7002 contains rules related to permit fees. MPCA amended Minn. R. 7002.0005, which describes the general scope of permit fees, and Minn. R. 7002.0015, which contains definitions for terms used throughout Chapter 7002, to remove references to state rules that have been repealed, and to clarify terms related to permit fees. EPA proposes to approve these administrative revisions to Minn. R. 7002.0005 and 7002.0015 into the Minnesota SIP.

Chapter 7005 contains numerous definitions and abbreviations relevant to rules throughout the Minnesota SIP. In Chapter 7005, MPCA amended several definitions in Minn. R. 7005.0100, to define new terms, clarify definitions, and re-number definitions. EPA finds these revisions approvable because they provide clarity to terms used in various rules throughout the SIP and do not change the requirements of the rules themselves. EPA proposes to approve the revisions to Minn. R. 7005.0100 into the Minnesota SIP

Chapter 7007 contains rules concerning permits and offsets and has undergone various changes. Note that because Chapter 7007 combines the state's preconstruction and operating permit programs into a single permitting program, MPCA uses the broad term Part 70 permit to reference several types of permits, including some permits that authorize construction. However, this rulemaking is limited solely to approval of revisions to the state's preconstruction permitting program and federally enforceable state operating permit program. This is not a rulemaking under 40 CFR part 70.

MPCA revised language in Chapter 7007, to clarify air emission permit requirements. MPCA amended Minn. R. 7007.0050 to clarify the scope of the air emission permit rules and the requirements to which the owners and operators of stationary sources are subject. EPA finds these revisions approvable as they do not change the applicability of the rule and strengthen the requirements. EPA proposes to approve the revisions to Minn. R. 7007.0050 in the Minnesota SIP.

Minn. R. 7007.0100 has been revised to contain definitions and references to other Federal requirements. EPA proposes to approve the revisions to Minn. R. 7007.0100, with the exception of subparts 9b through 9f, 12c, 24a, and 24b (See Section M. Items EPA is Not Taking Acting On) into the Minnesota SIP. EPA finds these added and revised definitions approvable as they clarify terms used throughout the rules concerning air emission permits, and do not change the requirements of the rules.

Minn. R. 7007.0250 has been revised to include administrative changes and the addition of a capped permit option for sources required to obtain a state permit opting to limit their emissions to under the threshold of the part 70 permit. Minn. R. 7007.0300 has been revised to identify sources that are not required to obtain a permit, with administrative changes and to limit the scope of sources not required to obtain a permit. EPA finds these revisions approvable as they add requirements to align the rules with Federal permitting requirements, and do not relax any previously approved SIP provisions. EPA proposes to approve the revisions to Minn. R. 7007.0250, and 7007.0300 into the Minnesota SIP.

Minn. R. 7007.0350 has been revised to contain updated definitions and the removal of references to repealed rules. EPA finds these revisions approvable as they provide clarity and do not change the stringency of the rule. EPA proposes to approve the revisions to Minn. R. 7007.0350 into the Minnesota SIP.

Minn. R. 7007.0400 has been revised to include the addition of a new subpart 5 which establishes the timeframe for the owner or operator to submit an application if a new regulation would make a stationary source subject to part 70 or a state permit. EPA finds these revisions approvable as they strengthen current requirements in the SIP. EPA proposes to approve the revisions to Minn. R. 7007.0400 into the Minnesota SIP.

Minn. R. 7007.0650 has been revised to include changes to the electronic permit application process and removes references to outdated submittal methods. Minor language changes were also made to Minn. R. 7007.0600 and 7007.0700. EPA finds these revisions approvable as they do not change the substance of the rules. EPA proposes to approve the revisions to Minn. R. 7007.0600, 7007.0650, and 7007.0700 into the Minnesota SIP.

Minn. R. 7007.0750 has been revised to include a clarification that part 70 permits are applicable for operation, not construction, and corrects language surrounding MPCA's two-step air permit issuance process to be consistent with Federal rules. EPA proposes to approve the revisions to Minn. R. 7007.0750 Subparts 1 through 7 into the Minnesota SIP.

Minn. R. 7007.0800 has been revised to confirm the required permit content for Part 70 permits, including requirements for emission limitations and standards and permit deviation reporting. MPCA reorganized this section and provided clarifying language to subparts 2, 4, 5, 6, 7, 10, 11, 12, and 14. EPA finds these revisions approvable as they make the rule consistent with the requirements at 40 CFR 70.6(a)(1). EPA proposes to approve the revisions to Minn. R. 7007.0800 into the Minnesota SIP.

Minn. R. 7007.0850 subpart 3 has been revised to include a process to petition for meetings and hearings, and a changing of the word “request” to the phrase “petition for.” EPA finds these revisions approvable as they are minor wording changes that do not change the applicability of the rule. EPA proposes to approve the revisions to Minn. R. 7007.0850 into the Minnesota SIP.

Minn. R. 7007.0950 has been revised to include administrative changes, such as renumbering. EPA proposes to approve the updates to Minn. R. 7007.0950 into the Minnesota SIP.

Minn. R. 7007.1000 subpart 1 is reworded to provide clarity for permit issuance and denial. MPCA did not make any substantive changes to the rule. EPA proposes to approve the revisions to Minn. R. 7007.1000 into the Minnesota SIP.

Minn. R. 7007.1050 has been revised to provide the duration of air emission permits. EPA proposes to approve the revisions to Minn. R. 7007.1050 into the Minnesota SIP.

Minn. R. 7007.1100 has been revised to provide a path forward for sources that, due to changes to operations or in regulations, invalidate the current permit. Minn. R. 7007.1100 now contains four new subparts. Subpart 8 provides the process when undergoing a name change or a change in ownership. Subpart 9 clarifies the requirements to obtain a new permit prior to commencing the modification that will invalidate the current permit. Subpart 10 provides the process for a source that becomes subject to a new regulation, invalidating the current permit. The amendment provides timeframes for the source to contact the commissioner regarding the new regulation and the new permit application, which the source must submit within 180 days of the new regulation's effective date. Further, if a source does not submit a new permit application within the timeframes specified in Minn. R. 7007.1100, the source will not hold a valid permit and will be in violation of Minn. R. 7007.0150, subpart 1. Subpart 11 cites Minn. R. 7007.1150 to 7007.1250, and Minn. R. 7007.1350 to 7007.1500, as rules that do not apply to certain general permits which cover an entire stationary source. EPA finds these revisions approvable as they strengthen MPCA's permitting rules to ensure continued compliance. EPA proposes to approve the revisions to Minn. R. 7007.1100 into the Minnesota SIP.

MPCA made various changes to its registration permit rules. Registration permits allow sources with low levels of actual emissions greater flexibility to make changes, provided they can demonstrate continued eligibility for a registration permit. In addition to requiring eligible sources to comply with all applicable state or Federal regulations, the rule includes specific compliance requirements for each registration permit option.

Minn. R. 7007.1110 has been revised to provide general requirements for registration permits. MPCA added to the categories of new source performance standards for which sources remain eligible for registration permits. These include 40 CFR, part 60, subpart I, hot mix asphalt facilities; subpart GG, stationary gas turbines; subpart IIII, stationary compression ignition internal combustion engines with displacement less than 30 liters per cylinder; and, subpart JJJJ, stationary spark ignition combustion engines. Minn. R. 7007.1110 has been revised to specify the calculation methodology to demonstrate compliance with registration permit option C or D, when there is less than 12 months of emissions data available and provides procedures and allotted timeframes when a stationary source is no longer eligible for a registration permit. Minn. R. 7007.1110 has been revised to address requirements for sources holding a registration permit when a change in ownership or control occurs, or when the source relocates. EPA finds these revisions approvable as they add additional requirements a source must comply with in order to receive a registration permit. EPA proposes to approve the revisions to Minn. R. 7007.1110 into the Minnesota SIP.

MPCA updated registration permit options A and B. Minn. R. 7007.1115 registration permit option A has been revised to include minor clarifications and corrections. Minn. R. 7007.1120 registration permit option B has been revised to include the addition of subpart 4, which describes the calculation method for volatile organic compounds (VOCs). EPA finds these revisions approvable as they clarify the rule language and do not change the substance of the rule. EPA proposes to approve the revisions to Minn. R. 7007.1115 and 7007.1120 into the Minnesota SIP.

Minn. R. 7007.1125 was added to describe the requirements for sources to obtain a new registration permit option C. Option C is intended for sources consisting only of boilers, reciprocating internal combustion engines, and/or emissions from VOC-containing materials, and which meet additional limiting criteria. The rule also excludes from eligibility any source that uses or generates nitrous oxide (NO X ) other than from combustion units and insignificant activities, and any source that uses or generates hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride other than from insignificant activities.

The SIP revision includes methods for calculating emissions from boilers, internal combustion engines and the use of VOC-containing materials. The rule also includes emission factors and calculations to be used to determine eligibility and compliance under option C. Further, it adds instructions for sources that may no longer qualify for a registration permit due to regulatory changes.

Minn. R. 7007.1130 has been revised to add compliance requirements for registration permit option D sources. A source is eligible for a registration permit option D if it has the potential to emit pollutants at levels exceeding a state or Federal threshold but reduces emissions by using pollution control equipment, or some other measure, so that the annual actual emissions for each pollutant are less than half the Federal permit threshold. Sources can demonstrate that actual emissions are below the thresholds with actual emissions calculations based on emission factors, performance tests, continuous emission monitoring and material balance methodology. Additionally, MPCA updated the registration permit option D by adding another eligible category of sources—low-emitting option D sources. MPCA did not change existing emissions thresholds under option D.

EPA proposes to find that the addition of Minn. R. 7007.1125 and revisions to Minn. R. 7007.1130 are consistent with CAA section 110(l) as these changes do not relax any previously approved SIP provision. Limitations are created in Minn. R. 7007.1125 and 7007.1130 that are equivalent to the types of limits that would have been established in an individual permit. Due to the low levels of actual emissions from these sources, EPA believes that the SIP revision will not interfere with attainment and maintenance of the NAAQS. EPA proposes to approve the addition of Minn. R. 7007.1125 and revisions to Minn. R. 7007.1130 into the Minnesota SIP.

MPCA added the following rules which pertain to capped permit option requirements: Minn. R. 7007.1140, 7007.1141, 7007.1142, 7007.1143, 7007.1144, 7007.1145, 7007.1146, 7007.1147, and 7007.1148. Minnesota's capped emission permit option is a rule-based permit in which all requirements are contained in a rule rather than a site-specific permit document. The capped permit restricts a facility's emissions below Federal permitting thresholds and requires the facility to comply with all applicable requirements. The capped permit allows the facility to make changes as long as emissions remain below the facility-wide thresholds and the facility is able to demonstrate continued compliance with all requirements. The capped permit was created to help reduce the permit backlog for small and medium-size sources that do not qualify for Minnesota's registration permits, to create incentives to reduce emissions to qualify for the capped permit, and to reduce administrative costs related to permitting for facilities and Minnesota.

There are two options available to facilities that choose a capped permit. Option 1 is for sources that will include actual emissions from all emissions units and insignificant activities, for which emissions factors or other calculation methods do not exist. Option 2 is for sources that will include actual emissions from all emissions units, insignificant activities and conditionally insignificant activities, as described in chapter 7008. Option 1 has higher allowable facility-wide emission limits than option 2.

Certain types of sources, however, are not eligible for a capped permit, even if their actual emissions fall below the capped permit thresholds. The sources that are not eligible for a capped permit are listed in Minn. R. 7007.1140, sub-paragraph 2. The rule also outlines procedures for sources that no longer meet the eligibility requirements of the capped permit option.

The capped permit option includes a public participation process. MPCA must electronically post notice of receipt of an application for a capped permit. The notice must identify the name and location of the facility to be permitted, the facility's SIC code, information on whether the facility is new or existing, a brief description of the comment period procedures, and contact information for additional information. The public comment period must be at least 30 days. In addition, during the public comment period, a contested case hearing on the application may be requested. The public participation requirements do not apply to applications in which a source is transferring from one capped permit option to another or if there is a change in name, mailing address, ownership, or control of the stationary source.

EPA proposes to find that the addition of Minn. R. 7007.1140-7007.1148 to the SIP is consistent with CAA section 110(l). These revisions do not relax any previously approved SIP provision. Limitations are created throughout Minn. R. 7007.1140-7007.1148 that are equivalent to the types of limits that would have been established in an individual permit. Because of the low levels of actual emissions from these sources, the SIP revisions are not expected to interfere with attainment and maintenance of the NAAQS. EPA proposes to approve the addition of Minn. R. 7007.1140-7007.1148 into the Minnesota SIP.

Minn. R. 7007.1150 has been revised to provide the criteria for a source to qualify for a replacement of existing control equipment. The replacement control equipment must be listed by MPCA as control equipment with sufficient control efficiency. EPA finds these revisions approvable as they do not relax the stringency of the rule. EPA proposes to approve the revisions to Minn. R. 7007.1150 into the Minnesota SIP.

Minn. R. 7007.1200 has been revised to include subpart 4 which describes recordkeeping requirements for calculations required by this Minn. R. 7007.1200. EPA finds these revisions approvable as they add recordkeeping requirements and do not change the applicability of the rule. EPA proposes to approve the revisions to Minn. R. 7007.1200 into the Minnesota SIP.

Minn. R. 7007.1250 subpart 1 has been revised to include only emission units and activities listed as insignificant activities in Minn. R. 7007.1300 subparts 2 and 3, and to require the permittee to initiate an administrative amendment within 30 days if a modification triggers new monitoring, recordkeeping, or reporting requirements. EPA finds these revisions approvable as they align the rule with Federal permitting requirements. EPA proposes to approve the revisions to Minn. R. 7007.1250 into the Minnesota SIP.

EPA proposes to approve the removal of Minn. R. 7007.1251 from the Minnesota SIP as it solely contains a table listing hazardous air pollutants (HAPs). MPCA added the HAPs table to Minn. R. 7007.1300 subpart 5. Minn. R. 7007.1300 subpart 2 has been revised to add an additional requirement for emissions calculations related to insignificant activities to ensure that adequate information is provided to determine the applicability of the rules for various emissions sources. Minn. R. 7007.1300 subpart 3 has been revised to specify and correct insignificant activities. Minn. R. 7007.1300 subpart 4 has been revised to clarify language for insignificant activities as they relate to the initial issuance of part 70 permits. Subpart 4 does not apply to permit amendments or reissuance. EPA finds these revisions approvable as they add requirements and do not relax the stringency of the rule. EPA proposes to approve the revisions to Minn. R. 7007.1300 into the Minnesota SIP.

Minn. R. 7007.1400 subpart 1 (D) has been revised to clarify situations where certain monitoring, recordkeeping, or reporting requirements are no longer applicable. Minn. R. 7007.1400 subpart 1 (H) has been revised to allow an administrative amendment to extend a testing deadline in a permit if the extension is needed to allow the permittee to test at worst case conditions. Minn. R. 7007.1400 subpart 1 has been revised to add include subparts I, J, and H which amend permit administrative requirements. EPA finds these revisions approvable as they make the rule consistent with 40 CFR 70.7(d) and 40 CFR part 63 and part C requirements. EPA proposes to approve the revisions to Minn. R. 7007.1400 into the Minnesota SIP.

Both Minn. R. 7007.1450 and 7007.1500 have been revised to clarify the differences between requirements of minor and major permit amendments. Minn. R. 7007.1500 has been revised to clarify what changes may be made by major permit amendment to make the rule compliant with Federal permitting requirements. EPA proposes to approve the revisions to Minn. R. 7007.1450 and 7007.1500 into the Minnesota SIP.

Minn. R. 7007.1600 has been revised to require that a permittee submit a permit application when additional Federal requirements become applicable to a stationary source with a remaining permit term of three or more years or with a non expiring permit. EPA finds these revisions approvable as they make the rule consistent with Federal part 70 rule requirements. EPA proposes to approve the revisions to Minn. R. 7007.1600 into the Minnesota SIP.

Several miscellaneous changes were made to Minn. R. 7007.4010-7007.5000. Minn. R. 7007.4010 has been revised to remove obsolete definitions of terms no longer used in Minn. R. 7007.4000 to 7007.4030. The conditions for permit at Minn. R. 7007.4020 was updated to add a reference to appendix S, part (II), section (A). Minn. R. 7007.5000 has been revised to incorporate by reference the Federal guidelines for Best Available Retrofit Technology (BART) and describes the requirements for BART determination and implementation. EPA proposes to approve the revisions to Minn. R. 7007.4010-7007.4020 and the addition of Minn. R. 7007.5000 into the Minnesota SIP.

MPCA promulgated Chapter 7008 rules to streamline and simplify Minnesota's air quality permitting program. The addition of Chapter 7008 establishes conditions under which sources are exempt from the requirement to apply for and obtain an air emission permit. Chapter 7008 also establishes the conditions under which certain activities will qualify as insignificant activities. The sources that may qualify as conditionally exempt include gasoline service stations and concrete manufacturing plants that have throughput and production limited to below thresholds outlined in the rule. In addition, material usage in coating and cleaning operations could be exempted from permitting requirements if usage remains below thresholds for VOC and particulate matter (PM). The rule cannot apply to any material activity with lead as a component. PM and particulate matter 10 micrometers and smaller (PM 10 ) emitting operations that vent inside a building may also qualify as conditionally insignificant activities. Activities such as buffing, polishing, carving, cutting, drilling, machining, routing, sanding, sawing, surface grinding or turning equipment must be filtered through an air cleaning system and vented inside the building at all times in order to be considered insignificant activities. Chapter 7008 requires sources who claim their operations are conditionally exempt or conditionally insignificant to maintain records that demonstrate eligibility with the rule.

The minor NSR provisions at 40 CFR 51.160 require state programs to determine if activities would violate an applicable SIP or national standard and to prevent construction of an activity that would violate an applicable SIP provision or national standard. Minnesota Rule 7008 exempts certain eligible stationary sources from air permitting requirements. When determining adequacy of state rules, EPA is concerned with the possibility that an exemption might allow an activity that should be subject to major source permitting requirements to escape appropriate review and permitting, that sources are required to maintain information adequate for the state to ensure that exemptions have been applied appropriately, and that the exemptions would not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA.

Minnesota Chapter 7008 provides limitations on the use of the specific exemptions in Minn. R. 7008.0050-7008.4100 and requires sources using the exemptions to maintain certain records to demonstrate that the exemptions have been applied appropriately. Specific conditionally exempt sources and conditionally insignificant sources may be required to implement additional monitoring and recordkeeping as required to ensure that the equipment is operating as required under the exemption.

Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment of a NAAQS or any other applicable requirement of the CAA. These conditionally exempt sources or conditionally insignificant activities are expected to yield very low levels of actual emissions of regulated pollutants and are not expected to interfere with attainment and maintenance of the NAAQS. EPA proposes to approve the addition of Minn. R. 7008.0050, 7008.0100, 7008.0200, 7008.0300, 7008.2000, 7008.2100, 7008.2200, 7008.2250, 7008.4000, 7008.4100, and 7008.4110 into the Minnesota SIP.

Chapter 7009 contains rules concerning ambient air quality standards, air pollution episodes, and adoption of Federal regulations. Changes to Chapter 7009 include amendments to Minn. R. 7009.0010, 7009.0020, and 7009.1060, the addition of Minn. R. 7009.0090, and the removal of Minn. R. 7009.0060-7009.0080. EPA proposes to approve the revisions to Chapter 7009 into the Minnesota SIP.

MPCA amended two rules, Minn. R. 7009.0010 and 7009.0020, which pertain to ambient air quality standards. Minn. R. 7009.0010 has been revised to define terms related to ambient air quality standards used throughout Chapter 7009. Minn. R. 7009.0010 has been revised to add three definitions for the terms “averaging time”, “form of the standard”, and “total suspended particulate”. EPA finds the addition of these definitions approvable as they are in line with Federal definitions of these terms and do not lessen the stringency of the rules to which they apply. Minn. R. 7009.0020 has been revised to apply specifically to the Minnesota Ambient Air Quality Standards (MAAQS) and to align the rule with the Federal definition of ambient air. EPA proposes to approve the revisions to Minn. R. 7009.0010 and 7009.0020 into the Minnesota SIP.

MPCA removed several rules under Chapter 7009 as they were either not NAAQS related or no longer relevant. Minn. R. 7009.0060 solely described a measurement methodology for hydrogen sulfide, which is not considered to be a criteria pollutant. Therefore, the removal of Minn. R. 7009.0060 from Minnesota's SIP will not impact Minnesota's ability to attain or maintain the NAAQS. Minn. R. 7009.0070 referred to the time of compliance for attaining the ozone and sulfur dioxide (SO 2 ) standards by 1984. MPCA removed this rule because it is outdated and unnecessary. Compliance dates for NAAQS pollutants are set during the NAAQS revision process. Minnesota is also currently attaining and maintaining the NAAQS for ozone and SO 2 . Minnesota requested that Minn. R. 7009.0080, Minnesota Ambient Air Quality Standards, be removed and replaced with Minn. R. 7009.0090. Minn. R. 7009.0080 contains a table of the MAAQS which are tracked at the state level. Minn. R. 7009.0090 incorporates by reference the NAAQS for SO 2 , PM 10 , PM 2.5 , carbon monoxide (CO), ozone, nitrogen dioxide, and lead as amended. Adding Minn. R. 7009.0090 will improve enforceability of the NAAQS and ensure that data for those pollutants is collected. EPA proposes to approve the removal of Minn. R. 7009.0060-7009.0080 and the addition of Minn. R. 7009.0090.

Minn. R. 7009.1060 has been revised to include the episode levels for PM 10 24-hour average, to add significant harm levels for 1-hour and 4-hour CO averaging times, and to remove the episode levels for “SO 2 x Part”, all in the table containing alert levels related to declaration of emergency. These revisions of Minn. R. 7009.1060 meet the requirements of CAA section 110(l) because the revised episode levels are stricter than the original episode levels. The removal of the “SO 2 x Part” episode levels is approvable because Minnesota is retaining separate episode levels for SO 2 and PM 10 . EPA proposes to approve the revisions to Minn. R. 7009.1060 into Minnesota's SIP.

Chapter 7011 contains rules concerning standards for stationary sources. MPCA updated various rules throughout chapter 7011. Further, MPCA requested the removal of Minn. R. 7011.0725 and 7011.1415.

In the following rules, MPCA updated control equipment codes due to irrelevance or unnecessary state duplication of EPA control equipment codes: Minn. R. 7011.0070 and 7011.0080. EPA proposes to approve the revisions to Minn. R. 7011.0070 and 7011.0080 into the Minnesota SIP.

The following rules underwent minor language changes such as changing the word “shall” to “must” or “which” to “that”: Minn. R. 7011.0065, 7011.0080, 7011.0510, 7011.0515, 7011.0530, 7011.0535, 7011.0610, 7011.0615, 7011.0620, 7011.0710, 7011.1105, 7011.1115, 7011.1135, 7011.1305, 7011.1310, 7011.1320, 7011.1405, 7011.1425, 7017.1080, 7017.1110, and 7017.1170. EPA finds these revisions approvable as they are minor language changes that do not affect the requirements of the rule. EPA proposes to approve the revised aforementioned rules into the Minnesota SIP.

Minn. R. 7011.0070 and 7017.2060 have been revised for spelling or grammar corrections, such as changing the spelling of “condensible” to “condensable.” EPA finds these revisions approvable as they are minor language changes that do not affect the requirements of the rule. EPA proposes to approve the revisions to Minn. R. 7011.0070 and 7017.2060 into the Minnesota SIP.

Minn. R. 7011.0065 has been revised to define the applicability of the rules concerning control equipment for stationary sources, and to clarify which state rules apply if a change regarding facility control equipment triggers a notification requirement under part Minn. R. 7007.1150, item C, subitem (3). The revision to Minn. R. 7011.0065 will assist permittees in determining compliance with notifications sent to MPCA and does not affect the applicability of the rule. EPA proposes to approve the revisions to Minn. R. 7011.0065 into the Minnesota SIP.

Minn. R. 7011.0070 has been revised to specify that condensable PM refers to both organic and inorganic compounds. EPA finds this revision approvable as it is merely a clarification and does not affect the applicability of the rule. EPA proposes to approve the revisions to Minn. R. 7011.0070 into the Minnesota SIP.

Several rules underwent minor language changes such as clarifying the form of PM being measured. In Minn. R. 7011.0510, 7011.0515, 7011.0530, 7011. 0610, 7011.0615, 7011.0710, 7011.0715, 7011.0720, 7011.0905, 7011.1105, 7011.1115, 7011.1130, 7011.1305, 7011.1310, 7011.1320, 7017.2060, 7011.1425, 7011.1405, 7011.1410, and 7011.1425 the terms “filterable” and/or “condensable” were added to clarify the form of PM referenced in these rules. Filterable PM is the fraction of particles that are solid and captured on a filter in the stack sampling procedure, which for indirect heating equipment sources is the PM measured with reference Method 5 and, thus, is the fraction of particles regulated by this standard. EPA proposes to approve the revised aforementioned rules into the Minnesota SIP.

Minn. R. 7011.0530, 7011.0615, 7011.0720, 7011.1320 and 7011.1425 have been revised to add the term “to demonstrate compliance” to clarify the distinction in the forms of PM being measured and the subset of data to be used to determine compliance. EPA proposes to approve the revisions to Minn. R. 7011.0530, 7011.0615, 7011.0720, 7011.1320 and 7011.1425 into the Minnesota SIP.

Minn. R. 7011.0535 has been revised to delete duplicative references to Federal reference methods as it is unnecessary to state in the state rule test procedures included in the reference methods. EPA proposes to approve the revisions to Minn. R. 7011.0535 into the Minnesota SIP.

Minn. R. 7011.0551 and 7011.0625 have been revised to amend references to regulatory provisions. EPA finds these revisions approvable as they do not change the meaning of the rules or lessen their stringency. EPA proposes to approve the revisions to Minn. R. 7011.0551 and 7011.0625 into the Minnesota SIP.

Older versions of Minn. R. 7011.0725 set forth an outdated protocol developed by MPCA in 1969 for recovering organic condensable material samples and determining particulate emissions. Minn. R. 7011.0725 has been revised to remove the outdated protocol and replace references to the rule with specific instruction to use EPA Method 202 (40 CFR part 51, appendix M) for performance tests. EPA's Method 202—Dry Impinger Method for Determining Condensable Particulate Emissions from Stationary Sources provides a test method for measuring condensable particulate matter. Replacing references of 7011.0725 with EPA Method 202 will improve consistency and update precision for most emission sources. Several rules were amended to incorporate Method 202 for measurement of the organic portion of condensable PM, which replaced the procedures in Minn. R. 7011.0725. The following rules have been revised to incorporate EPA Method 202 for measurement of the organic portion of condensable PM: Minn. R. 7011.0615, 7011.0620, 7011.0720, and 7017.2060. These changes align the rule with Federal methods. EPA proposes to approve the removal of Minn. R. 7011.0725 and revisions to Minn. R. 7011.0615, 7011.0620, 7011.0720, and 7017.2060 into the Minnesota SIP.

Minn. R. 7011.0620 has been revised to clarify that owners and operators may request approval of smaller sampling times or volumes when necessitated by process variables or site-specific limitations. EPA proposes to approve the revisions to Minn. R. 7011.0620 into the Minnesota SIP.

Minn. R. 7011.1135 subpart 2 has been revised to restrict the conditions under which a facility may modify a PM test, by requiring a description of site-specific conditions necessitating the test modification. These changes align the rule with Federal methods. EPA proposes to approve the revisions to Minn. R. 7011.1135 into the Minnesota SIP.

Minn. R. 7011.1201 has been revised to update definitions for waste combustors. Updates include rule citation corrections, renumbering subparts, removal of obsolete definitions, addition of definitions for terms used throughout sections of the SIP such as resinated wood and retrofit, and other clarifying language. EPA finds these revisions approvable as they do not change the meaning or lessen the stringency of the rule. EPA proposes to approve the revisions to Minn. R. 7011.1201 into the Minnesota SIP.

Minn. R. 7011.1205 has been revised to update the rule citations to also include 7011.1290-7011.1294, since the documents incorporated by reference in 7011.1205 are also relevant to these rules. EPA proposes to approve the revisions to Minn. R. 7011.1205 into the Minnesota SIP.

Minn. R. 7011.1405 and 7011.1410 have been revised to clarify which contain the standards of performance for existing and new affected facilities at petroleum refineries. In subpart 2 of Minn. R. 7011.1405 and 7011.1410, MPCA clarified that flares that are subject to the conditions of 40 CFR part 60, subpart Ja, are not subject to the limits of this subpart. In subpart 3 of Minn. R. 7011.1405 and 7011.1410, a statement was added to clarify that the standards of performance for indirect heating equipment in Minn. R. 7011.0500 to 7011.0530, do not apply to indirect heating equipment at petroleum refineries, and that the standards of performance for indirect heating equipment at petroleum refineries is listed in Minn. R. 7011.1405 and 7011.1410 subpart 3. EPA proposes to approve the revisions to Minn. R. 7011.1405 and 7011.1410 into the Minnesota SIP.

MPCA updated the definitions for liquid petroleum and volatile organic liquid storage vessels in Minn. R. 7011.1500 to include the definition of “commenced.” MPCA updated the definitions for sulfuric acid plants in Minn. R. 7011.1600 to include a definition for “existing sulfuric acid production unit.” EPA proposes to approve the revisions to Minn. R. 7011.1500 and 7011.1600 into the Minnesota SIP.

Chapter 7017 contains rules regarding monitoring and testing requirements. Several updates were made to the rules in Chapter 7017, and both Minn. R. 7017.1210 and 7017.2018 were removed and replaced by Minn. R. 7017.1215 and 7017.2017 respectively. EPA proposes to approve these revisions into the Minnesota SIP.

Minn. R. 7017.1002 has been revised to include definitions relevant to continuous monitoring systems, specifically, for the terms “grace period,” “quality assurance operating quarter,” “stack operating hour,” and “unit operating hour.” EPA finds these revisions approvable as they clarify terms used in the SIP and do not change the applicability or stringency of the rules. EPA proposes to approve the revisions to Minn. R. 7017.1002 into the Minnesota SIP.

Both Minn. R. 7007.1350 and 7017.1080 have been revised to clarify that certification test reports must be submitted in the format specified by the commissioner. Minn. R. 7017.1080 has been revised to remove subpart 3, the microfiche submittal deadline, as it is outdated and has since been repealed by the state. MPCA revised subparts 1-4 of Minn. R. 7017.1120. Subpart 1 has been revised to delete the address previously listed and require submittal “in a physical or electronic format as specified by the commissioner and to the address identified on the required form or as provided by the agency.” Subpart 2, which had specified alternate formats for making submissions, e.g., facsimile or CD ROM, has been repealed by the state because MPCA now includes electronic format as a standard submission method in other subparts. Subpart 3 has been revised to indicate that submittal dates may be specified not only in a compliance document but also in a regulation. Subpart 4 has been revised to more generally require certification statements to be submitted “in a format specified by the commissioner,” and to delete outdated submission procedures. Minn. R. 7017.2035 has been revised to remove an outdated submittal option that allowed for performance test reports to be submitted as a microfiche. EPA proposes to approve the revisions to Minn. R. 7007.1350, 7017.1080, 7017.1120, and 7017.2035 into the Minnesota SIP.

Minn. R. 7017.1110 has been revised to add two requirements regarding the contents of excess emissions reports. These new requirements include a summary of the cylinder gas audit and relative accuracy test audit (RATA) required by Minn. R. 7017.1180 and 7017.1220 if the audits were completed in the previous quarter and if applicable, notifications of exceptions of applicability from audit frequencies as allowed in Minn. R. 7017.1170, subparts 4a and 5a, and Minn. R. 7017.1215. EPA finds these revisions approvable as they do not change the stringency of the rule. EPA proposes to approve the revisions to Minn. R. 7017.1110 into the Minnesota SIP.

Minn. R. 7017.1170 describes quality assurance and control requirements for continuous emissions monitoring systems (CEMS). Minn. R. 7017.1170 has been revised to remove subpart 1 and include 1a, which states that the quality assurance and control requirements apply to each CEMS unless otherwise specified by another applicable standard. Minn. R. 7017.1170 subpart 2 has been revised by adding the requirement that the quality assurance plan contain the information required by 40 CFR part 75, appendix B. Minn. R. 7017.1170 subpart 3 has been revised by adding a requirement for facilities to conduct daily calibration drift assessments and adjustments in accordance with the procedures in 40 CFR part 75, appendix B, section 2.1. Minn. R. 7017.1170 subpart 4 has been revised to remove the semiannual cylinder gas audit requirements and replaced them with the cylinder gas audit provisions of subpart 4a. Subpart 4 incorrectly cited procedures in 40 CFR part 60 appendix G, section 5.1.2 rather than 4 CFR part 60 appendix F, section 5.1.2 and contained an obsolete compliance date. Subpart 4a requires cylinder gas audits according to 40 CFR part 60, appendix F, section 5.12, or 40 CFR part 75, appendix A, section 6.2, for sources not subject to 40 CFR part 60. It also provides a 168-hour grace period if the unit being monitored by the CEMS is not in operation when the cylinder gas audit is due. Minn. R. 7017.1170 has been revised to remove subpart 5 and add subpart 5a which contains the RATA requirements. Subpart 5a requires RATAs according to 40 CFR part 60, appendix B, or 40 CFR part 75, appendix A, sections 6.5 to 6.5.2.2, and appendix B, sections 2.3.1.3 and 2.3.1.4, as amended. Minn. R. 7017.1170 subpart 6 has been revised to add a citation to 40 CFR part 75, appendix A, section 3.3, as amended. Minn. R. 7017.1170 has been revised to add subpart 8 which states that data collected during out of control periods is not valid and may not be used for compliance demonstrations. EPA finds the addition of subpart 8 approvable as it meets the requirements of 40 CFR part 60, appendix F, sections 4.3.2 and 5.2.2. EPA proposes to approve the revisions to Minn. R. 7017.1170.

Minn. R. 7017.1210 includes outdated Continuous Opacity Monitoring Systems (COMS) procedures used to demonstrate compliance with New Source Performance Standards. Minn. R. 7017.1210 has been revised to remove monitoring and testing requirements and replaced it with Minn. R. 7017.1215, which incorporates by reference “Procedure 3—Quality Assurance Requirements for Continuous Opacity Monitoring Systems at Stationary Sources, Code of Federal Regulations, title 40, part 60, Appendix F”, as amended. Replacing Minn. R. 7017.1210 with Minn. R. 7017.1215 will ensure that MPCA's COMS procedures are up to date and in compliance with EPA regulations. EPA proposes to approve the removal of Minn. R. 7017.1210 and the addition of Minn. R. 7017.1215 into the Minnesota SIP.

Minn. R. 7017.2001 has been revised to define the applicability for performance tests, by removing subpart 2 because it referenced an outdated transition period deadline for performance test procedures. The deadline passed in 1993 and the transition has been implemented so removal of this subpart does not affect Minnesota's air quality management program. EPA proposes to approve the revisions to Minn. R. 7017.2001 into the Minnesota SIP.

Minn. R. 7017.2018 has been removed and replaced with Minn. R. 7017.2017 as it provides the current procedure for submittals required under Minn. R. 7017.2015 to 7017.2060. Minn. R. 7017.2015 subpart 4 has been revised to reflect the repeal of part Minn. R. 7017.2018 and its replacement by part Minn. R. 7017.2017. EPA proposes to approve the removal of Minn. R. 7017.2018 and the addition of Minn. R. 7017.2017 into the Minnesota SIP.

Minn. R. 7017.2025 has been revised to clarify rule language and provide rule citations concerning operational requirements and limitations. In subpart 3a part C, MPCA revised the language to state that for new operating limits and pollution control equipment limits not specified in item A or B, the averaging time and any extension of the range of values must be defined in the test plan approved under Minn. R. 7017.2030, subpart 2. EPA finds this revision approvable as it does not change the requirements of the rule and clarifies the test plan requirements by citing Minn. R. 7017.2030, subpart 2. EPA proposes to approve the revisions to Minn. R. 7017.2025 into the Minnesota SIP.

Minn. R. 7017.2050 subpart 1 has been revised to clarify that if test methods incorporated by reference contain exemptions and exclusions that do not meet the requirements of Minn. R. 7017.2001 to 7017.2060, the exemptions and exclusions do not apply. EPA proposes to approve the revisions to Minn. R. 7017.2050 into the Minnesota SIP.

MPCA made several updates to performance test procedures in Minn. R. 7017.2060. MPCA removed language referring to emissions test procedures for Federal methods, such as Method 5 Method 202 for determining PM emissions, which has been revised to instruct owners and operators to use the Federal methods as amended to avoid future conflict with state rules if Federal methods are revised. Minn. R. 7017.2060 subpart 3.B. has been revised to provide clarity on how a facility determines PM emissions, which is based on the sum of filterable and organic condensable PM unless otherwise required in chapter 7011. Minn. R. 7017.2060 subpart 3.C. has been revised to clarify that a facility's compliance status is determined by the sum of filterable and organic condensable PM. Minn. R. 7017.2060 has been revised to add Subpart 3.D. which allows an owner or operator to apply to the commissioner to exclude condensable PM from a performance test for PM provided that previous performance test results show that the emissions unit is not a source of organic condensable PM emissions or an exception in Method 202, section 1.4(h), as amended, applies. Further, Minn. R. 7017.2060 subpart 3.D. removes the ability of a facility owner or operator to use a mass balance calculation as a rationale for waiving measurement of condensable PM. Minn. R. 7017.2060 subpart 4 has been revised to clarify testing requirements for PM 10 by identifing the test methods used, and how to demonstrate compliance with applicable PM 10 emission limits. Minn. R. 7017.2060 subpart 4 has been revised to allow an owner or operator to apply to the commissioner to exclude organic and inorganic condensable PM from a performance test for PM 10 provided that previous performance test results show that the emissions unit is not a source of organic or inorganic condensable PM emissions or that an exception in Method 202, section 1.4(h), as amended, applies. Minn. R. 7017.2060 has been revised to add subpart 4a to establish testing requirements for PM 2.5 , to describe how to demonstrate compliance with PM 2.5 emission limits. Minn. R. 7017.2060 subpart 4q will reference Federal rules for Methods 201A and 202, establish how to report PM 2.5 emissions, and define and establish an emission facility's compliance status. Subpart 4a includes a provision to allow an owner or operator to apply to the commissioner to exclude organic and inorganic condensable PM from a performance test for PM 2.5 provided that previous performance test results show that the emissions unit is not a source of organic or inorganic condensable PM emissions or that an exception in Method 202, section 1.4(h), as amended, applies. EPA proposes to approve the revisions to Minn. R. 7017.2060 into the Minnesota SIP.

Minn. R. 7019.3020 has been revised to add different types of registration permits, including requirements for calendar year actual emission reporting for option A registration permits. EPA finds these revisions approvable as they add requirements and do not reduce any previously SIP approved requirements. EPA proposes to approve the revisions to Minn. R. 7019.3020.

Minn. R. 7019.3030 has been revised to add a mercury material balance reference. Minn. R. 7019.3050 has been revised to add the performance test requirements for mercury emission sources in Minn. R. 7019.3050. EPA proposes to approve the revisions to Minn. R. 7019.3030 and Minn. R. 7019.3050 into the Minnesota SIP.

No changes were made to Chapter 7023. EPA proposes to reapprove Chapter 7023 into the Minnesota SIP.

On August 10, 2011 (76 FR 49303), EPA approved the removal of all of Chapter 7001 from Minnesota's SIP, however, 40 CFR 52.1220(c) was not revised accordingly. EPA proposes to approve and take an administrative action to correct the table at 40 CFR 52.1220(c) by removing all entries for Chapter 7001.

In addition to the correction mentioned above, the submittal also included corrections to administrative errors contained in the Minnesota PM 10 designation table at 40 CFR 81.324 to help clarify which areas in the state are listed as unclassifiable/attainment. EPA proposes to approve and take an administrative action to correct the table at 40 CFR 81.324.

EPA proposes to take no action on the definitions at Minn. R. 7007.0100, subpart 9b through 9f, 12c and 24b. These definitions are related to the environmental management system (EMS). Minnesota has not submitted the EMS provisions as part of this SIP submittal. Since the definitions do not reference provisions in the SIP and MPCA plans to remove the EMS conditions from its rules at a later date, EPA proposes to take no action on Minn. R. 7007.0100, subpart 9b through 9f, 12c and 24b.

The following rules reference an outdated greenhouse threshold for carbon dioxide equivalent which is less stringent than the current Federal requirement: Minn. R. 7007.0100 subpart 24a, 7007.0150, 7007.0200, and 7007.0500. EPA proposes to take no action on the revisions to Minn. R. 7007.0100 subpart 24a, 7007.0150, 7007.0200, 7007.0500.

EPA proposes to take no action on the exemptions MPCA requested to remove at Minn. R. 7011.1415 since they refer to exemptions for excess emissions resulting from gas flaring at petroleum refineries during periods of startup, shutdown, and malfunction. EPA is currently deliberating on how to move forward on startup, shut down, and malfunction related issues and will take no action on Minn. R. 7011.1415 in this SIP action. Subsequently, EPA proposes to take no action on the revised definitions at Minn. R. 7011.1400 as the revised definitions relate to the requested removal of Minn. R. 7011.1415.

EPA is proposing to approve MPCA's November 14, 2018, submittal as a revision to its existing SIP with exception to the definitions at Minn. R. 7007.0100, paragraph 9b through 9f, 12c and 24b, Minn. R. 7011.1400, and Minn. R. 7011.1415, where EPA is taking no action.

In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference revisions to Minnesota Rules Chapter 7000 Procedural Rules; Chapter 7002 Permit Fees; Chapter 7005 Definitions and Abbreviations; Chapter 7007 Permits and Offsets; Chapter 7008 Conditionally Exempt Stationary Sources and Conditionally Insignificant Activities; Chapter 7009 Ambient Air Quality Standards; Chapter 7011 Standards for Stationary Sources; Chapter 7017 Monitoring and Testing Requirements; and Chapter 7019 Emission Inventory Requirements, as discussed in section II. “Review of State Submittal” above. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

Under section 181(b)(2) of the Clean Air Act (CAA), EPA is required to determine whether areas designated nonattainment for an ozone NAAQS attained the standard by the applicable attainment date, and to take certain steps for areas that failed to attain.

On May 21, 2012, EPA designated the entirety of Sheboygan County in Wisconsin as nonattainment for the 2008 ozone NAAQS (77 FR 30088). At the time of its designation, the Sheboygan County, WI nonattainment area for the 2008 ozone NAAQS was classified as Marginal with an attainment date of July 20, 2015. On May 4, 2016, EPA determined that the Sheboygan nonattainment area qualified for a one-year attainment date extension to July 20, 2016 (81 FR 26697). On December 19, 2016, EPA determined that the area had failed to attain the standard by its extended attainment date, and EPA reclassified the Sheboygan nonattainment area as Moderate with an attainment date of July 20, 2018 (81 FR 91841).

On July 15, 2019, EPA revised the designation for the Sheboygan nonattainment area for the 2008 ozone NAAQS, by splitting the original area into two distinct nonattainment areas that together cover the identical geographic area of the original nonattainment area (84 FR 33699). One of the separate areas, called the Shoreline Sheboygan County, WI nonattainment area, consists of the eastern portion of the original area, including the Sheboygan Kohler Andrae monitor. The other separate area, called the Inland Sheboygan County, WI nonattainment area, consists of the western portion of the original area, including the Sheboygan Haven monitor. On August 23, 2019, EPA determined that the Inland Sheboygan area and Shoreline Sheboygan area qualified for one-year attainment date extensions to July 20, 2019 (84 FR 44238).

For a concentration-based standard, such as the 2008 ozone NAAQS, a determination of attainment  1 is based on a nonattainment area's design value. The design value for the 2008 ozone NAAQS is the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentration. The 2008 ozone NAAQS is met at an ambient monitoring site when the design value does not exceed 0.075 parts per million (ppm). The attainment date design value is based on the three most recent, complete calendar years of data preceding the attainment date. In this case, EPA's proposed determinations for each area are based on the complete, quality-assured and certified ozone monitoring data from calendar years 2016, 2017, and 2018. As such, EPA's proposed determinations for each Sheboygan area are based upon the complete, quality-assured and certified ozone monitoring data from calendar years 2016, 2017, and 2018.

All monitors in an area must be considered when determining if the area attains the NAAQS. To make the determination that an area attains the NAAQS, each monitor must have a valid  2 design value meeting the standard. If one or more monitors in an area have a design value that exceeds the standard, the area does not attain the NAAQS. For the Inland Sheboygan area, EPA must consider the design value from the Sheboygan Haven monitor with site ID 55-117-0009, and for the Shoreline Sheboygan area, EPA must consider the design value from the Sheboygan Kohler Andrae monitor with site ID 55-117-0006. Data from these monitors are presented in Table 1.

Additional background and rationale for EPA's actions making determinations of attainment, reclassifications, and establishing SIP submission and implementation deadlines for reclassified areas for many of the other 2008 Moderate ozone nonattainment areas is provided in our August 23, 2019 final rulemaking (84 FR 44238), as well as in our November 14, 2018 proposal of that rulemaking (83 FR 56781).

The Inland Sheboygan area had a design value that did not exceed 0.075 ppm based on the 2016-2018 data. Thus, EPA proposes to determine, in accordance with CAA section 181(b)(2)(A), that the area attained the standard by the applicable attainment date of July 20, 2019. 3

This proposed determination of attainment by the attainment date does not constitute a formal redesignation to attainment as provided for under CAA section 107(d)(3). Redesignations to attainment require states to meet the statutory criteria set out at CAA section 107(d)(3)(E), which include requirements that the state has met the applicable requirements under CAA section 110 and part D, and EPA has approved a maintenance plan to ensure continued attainment of the standard for 10 years following redesignation, as provided under CAA section 175A.

EPA is proposing to determine that the Shoreline Sheboygan area failed to attain the 2008 ozone NAAQS by the extended attainment date of July 20, 2019. This area is not eligible for a second 1-year attainment date extension because the area does not meet the extension criteria under CAA section 181(a)(5) as interpreted by EPA in 40 CFR 51.1107. Under these criteria, for an area to qualify for a second 1-year extension, the area's 4th highest daily maximum 8-hour value, averaged over both the original attainment year and the first extension year must be 0.075 ppm or less.

Section 181(b)(2)(B) of the CAA requires EPA to publish a determination of failure to attain and accompanying reclassification in the Federal Register no later than 6 months after the attainment date, which in the case of the Shoreline Sheboygan area would be no later than January 20, 2020.

As required under CAA section 181(b)(2)(A), if EPA finalizes the determination that the area failed to attain by the attainment date, it will be reclassified to Serious by operation of law. The reclassified area will then be subject to the Serious area requirement to attain the 2008 ozone NAAQS as expeditiously as practicable, but not later than July 20, 2021.

Once reclassified as Serious, the state must submit to EPA the SIP revisions for the area that satisfy the statutory and regulatory requirements applicable to Serious areas established in CAA section 182(c) and in the SIP Requirements Rule. However, the statutory timeframes for SIP submissions applicable to areas originally classified as Serious have passed. For instance, 40 CFR 51.1108 established the deadline for Serious-area attainment demonstrations to be 48 months after the effective date of nonattainment designation, or July 20, 2016. Under CAA section 182(i), reclassified areas are required to meet the requirements associated with their newly reclassified status according to the schedules prescribed in connection with such requirements, except that the Administrator may adjust applicable deadlines (other than attainment dates) to the extent such adjustment is “necessary or appropriate to assure consistency among the required submissions.”

In our August 23, 2019, rulemaking, EPA exercised its discretion under CAA section 182(i) to adjust the deadlines for other areas in the country that were reclassified to “Serious” for submitting SIP revisions required by CAA section 182(c) (84 FR 44238). In accordance with CAA section 182(i), in order to “assure consistency among the required submissions”, EPA proposes that the same SIP submission due dates and implementation deadlines finalized for other areas reclassified to Serious in our August 23, 2019, rulemaking will apply to the Shoreline Sheboygan area upon its reclassification to Serious. With regard to reasonably available control technology (RACT), EPA's August 23, 2019, rulemaking made a distinction between RACT measures that would be needed for purposes of meeting reasonable further progress (RFP) requirements or for attaining the NAAQS expeditiously, and the possible set of RACT measures that nevertheless are required to be adopted and implemented under the CAA but would not necessarily be needed for a state to meet RFP or demonstrate timely attainment in a particular nonattainment area. These two “categories” of RACT measures are referred to as “RACT measures tied to attainment” and “RACT measures not tied to attainment,” respectively.

EPA is proposing August 3, 2020, as the due date for Serious area SIP revisions, including RACT measures tied to attainment. EPA is also proposing August 3, 2020, as the implementation deadline for RACT measures tied to attainment for the Shoreline Sheboygan area. These deadlines are the same as for the other areas reclassified to Serious in EPA's August 23, 2019, rulemaking.

The state submittal requirements for attainment plans, in general, are provided under CAA section 172(c); the SIP requirements that apply to Serious areas for the 2008 ozone NAAQS are listed under CAA section 182(c) and include: (1) Enhanced monitoring; (2) attainment demonstration and RFP plan; (3) an enhanced vehicle inspection and maintenance program, if applicable; (4) clean-fuel vehicle programs and transportation control; (5) nonattainment New Source Review program revisions; and (6) contingency measures. States must also provide an analysis of—and adopt all—reasonably available control measures (RACM), including RACT needed for purposes of meeting RFP or timely attaining the NAAQS. Such an analysis should include: (1) An evaluation of controls for sources emitting 100 tons per year (tpy) or more that may have become reasonably available since the January 1, 2017, Moderate area deadline for adopting and implementing RACT, and (2) an evaluation of controls that are currently reasonably available for sources emitting 50 tpy or more, consistent with the Serious area classification.

For Serious areas reclassified from Moderate, the requirement for RACT expands to include all sources that emit, or have the potential to emit, 50 tpy of volatile organic compounds (VOC) or nitrogen oxides (NO X ). State air agencies responsible for Moderate areas are already required to implement RACT for major sources, defined as sources that emit or have the potential to emit 100 tpy. Thus, states must revise their RACT SIPs to include those other sources emitting or having the potential to emit 50 to 100 tpy. EPA proposes that the State submit its SIP revisions for any RACT not otherwise needed for attainment purposes for the Shoreline Sheboygan area by March 23, 2021. This deadline is the same as for the other areas reclassified to Serious in EPA's August 23, 2019, rulemaking.

EPA is proposing July 20, 2021, the Serious area attainment date, as the deadline for implementation of RACT measures not tied to attainment for the Shoreline Sheboygan area. This deadline is the same as for the other areas reclassified to Serious in EPA's August 23, 2019, rulemaking.

EPA is proposing to determine that the Inland Sheboygan area attained the 2008 ozone NAAQS by the July 20, 2019, extended attainment date. EPA is also proposing to determine that the Shoreline Sheboygan area failed to attain the standard by the extended attainment date. The effect of failing to attain by the attainment date is that the area will be reclassified by operation of law to “Serious” upon the effective date of the final reclassification action. WDNR will then be required to submit SIP revisions to satisfy the statutory and regulatory requirements for Serious areas for the 2008 ozone NAAQS. EPA is proposing deadlines for submittal of those SIP revisions and implementation of the related control requirements.

This proposed action is not a “significant regulatory action” subject to review by the Office of Management and Budget.

This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

This action is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibilities Act (5 U.S.C. 601 et seq. )

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. It will not have a substantial direct effect on one or more Indian tribes, since EPA's proposed determination of attainment by the attainment date and reclassification do not impact any areas of Indian country. Furthermore, these regulation revisions do not affect the relationship or distribution of power and responsibilities between the Federal government and Indian tribes. The CAA and the Tribal Air Rule establish the relationship of the Federal government and tribes in developing plans to attain the NAAQS, and these revisions to the regulations do nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low income populations and/or indigenous populations as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

Background

The New England Fishery Management Council manages a complex of seven skate species (barndoor, clearnose, little, rosette, smooth, thorny, and winter) off the New England and mid-Atlantic coasts through the Northeast Skate Complex Fishery Management Plan (FMP). The FMP was implemented in 2003. Skates are harvested and managed through two different targeted fisheries, one for food (the wing fishery) and one for use as bait in other fisheries (the bait fishery). The FMP requires that annual catch and possession limits for the skate fishery be reviewed and established through the specifications process for up to two fishing years at a time. The current specifications (revised February 15, 2019; 84 FR 4373) expire on April 30, 2020, and will remain effective in the event that a final rule for this action is delayed beyond that date.

In August 2019, the Council's Scientific and Statistical Committee (SSC) reviewed updated information on the status of the seven skate species and recommended an acceptable biological catch (ABC) of 32,715 mt for fishing years 2020 and 2021. This ABC incorporates updated data derived from the median catch/biomass exploitation ratio for the time series up to 2019 and the three-year average stratified mean biomass for skates, using the 2017-2019 spring New England Fisheries Science Center (NEFSC) survey data for little skate and the 2016-2018 fall NEFSC survey data for the other species.

At a meetings in late August and early September, the skate plan development team (PDT), advisory panel (AP), and Committee met to discuss and make recommendations on these specifications. The PDT and Committee agreed with the SSC recommendation for the ABC, and following Amendment 3 procedures, recommended that the annual catch limit (ACL) be set equal to the ABC. The PDT and Committee also recommended a moderate increase in the total allowable landings (TAL) for both the wing and bait fisheries, primarily due to recent data indicating fewer discards in the directed fisheries. The AP and Committee discussed ways to provide greater access to the skate resource to better utilize the increased quotas. Based on this discussion, the Committee recommended increasing seasonal possession limits for both the wing and bait fisheries. The Council took final action on this framework at the September 2019 meeting in Gloucester, MA.

This action proposes the Council's recommendations for 2020 and 2021. This action would increase the ACL to 32,715 mt (up from 31,327 mt in 2019) and the overall TAL to 17,864 mt (an increase from 15,788 mt in 2019). This would result in an approximately 13- percent increase each in both the bait and wing fisheries' TALs. The bait fishery TAL would be 5,984 mt, and the wing fishery TAL would be 11,879 mt. The fishing year for skates is from May 1 to April 30. However, the directed wing and bait fisheries are broken up into separate seasons to more closely manage harvest. According to regulations at 50 CFR 648.322, 66.5 percent of the skate TAL is allocated to wing fishery. Of the wing fishery TAL, 57 percent is allocated to Season 1 (May 1-August 31), with the remainder allocated to Season 2 (September 1-April 30). In the bait fishery, Season 1 (May 1-July 31) is allocated 30.8 percent of the bait TAL, Season 2 (August 1-October 31) receives 37.1 percent, and the remainder is allocated to Season 3 (November 1-April 30). A summary of the proposed 2020-2021 skate fishery specifications is shown below in Table 1.

This proposed action would also increase seasonal possession limits in both the wing and bait fisheries to allow more flexibility in harvesting the additional quota. The wing fishery trip limit in Season 1 would be raised from 2,600 lb (1,179 kg) to 3,000 lb (1,361 kg), and the Season 2 trip limit would increase from 4,100 lb (1,860 kg) to 5,000 lb (2,268 kg). The barndoor skate possession limit within the wing fishery would also increase from 650 lb (295 kg) to 750 lb (340 kg) in Season 1, and from 1,025 lb (465 kg) to 1,250 lb (567 kg) in Season 2. In the bait fishery, the Season 3 trip limit would be raised from 12,000 lb (5,443 kg) to 25,000 lb (11,340 kg) to be consistent with the rest of the fishing year. The incidental possession limits of 500 lb (227 kg) in the wing fishery and 8,000 lb (3,629 kg) in the bait fishery would remain unchanged.

Pursuant to section 304(b)(1)(A) of the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Northeast Skate Complex FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

The Council reviewed the proposed regulations for this action and deemed them necessary and appropriate to implement consistent with section 303(c) of the Magnuson-Stevens Act.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce 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. The factual basis for this determination is as follows.

The Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures. The action would impact vessels or affiliated groups that hold Federal skate permits and participate in skate fisheries. The Council's analysis of 2018 data, the most recent complete set of data available, and the commercial ownership affiliate database, indicated that the skate fishery had 364 vessels with federal permits that landed skates in 2018. Those 364 vessels were owned by a total of 331 business entities that could be directly affected by this action. Of the 331 affiliate groups that landed skate, 327 were classified as small businesses and 4 were large businesses.

The purpose of this action was previously outlined in the preamble to this proposed rule and is not repeated here. As proposed, this action would slightly increase the available catch limits in skate fishery for fishing years 2020-2021, as well as seasonal possession limits for both the wing and bait skate fisheries. This action is expected to result in increased revenues and economic benefits from the higher annual catch limits, while providing additional operational flexibility and fishing opportunity through the increased trip limits. This action is not expected to have a significant economic impact on a substantial number of small entities. The effects on the regulated small entities in this analysis are expected to be positive. Under the proposed action, small entities would not be placed at a competitive disadvantage relative to large entities, and the regulations would not reduce profits for any small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This action would not establish any new reporting or record-keeping requirements.

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows: