Federal Register Vol. 83, No.100,

On July 29, 2016, Public Law 114-216 amended the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et seq.), as amended, and directed the Secretary of Agriculture to establish the NBFDS for disclosing any food that is or may be bioengineered. AMS published a proposed rule regarding the new standard in the Federal Register on May 4, 2018 (83 FR 19860). The proposed rule announced that AMS would be providing a webinar regarding the proposed NBFDS. The webinar, which is pre-recorded, will be made available to interested persons on the AMS website at https://www.ams.usda.gov/rules-regulations beginning June 1, 2018. The webinar is intended to supply basic information about the proposed rule and several regulatory alternatives on which AMS is seeking public comment.

The rule seeks comments on the proposed scope of the standard, including what foods should bear disclosures and what entities would be responsible for making disclosures. The rule proposes several alternatives for consideration, including methods of disclosure, and outlines procedures for recordkeeping and compliance. The proposed rule also seeks comments on the recordkeeping and information collection burden associated with the new standard. Comments on the proposed rule and on the information collection are being accepted through July 3, 2018, and should be submitted as directed in the May 4, 2018, Federal Register document.

In conjunction with the proposed rule, AMS published a Regulatory Impact Analysis, which describes potential impacts of the rule under alternative scenarios. Comments on the regulatory impacts of the proposed NBFDS are also invited. The full text of the proposed rule, as well as the Regulatory Impact Analysis, may be viewed at www.regulations.gov.

Comments Invited

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2016-0161, dated August 8, 2016, to correct an unsafe condition for Leonardo Helicopters (previously Finmeccanica S.p.A, AgustaWestand) Model AW189 helicopters. EASA advises that some cracks have been reported in-service on the tail plane fitting of AW189 helicopters following an onset of abnormal play. According to EASA, this condition, if not detected and corrected, could jeopardize structural integrity of the helicopter. EASA further advises that Leonardo Helicopters developed a tail plane lower fitting with an improved design (part number 8G0000P00511). Accordingly, EASA AD No. 2016-0161 requires repetitive inspections of the tail plane lower fitting assembly until the improved tail plane lower fitting is installed.

Because the FAA is in the process of updating AgustaWestland's name changes to Finmeccanica S.p.A. and then to Leonardo Helicopters on its FAA type certificate, this proposed AD specifies AgustaWestland as the type certificate holder.

These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

We reviewed Leonardo Helicopters Bollettino Tecnico (BT) No. 189-038, Revision B, dated October 13, 2016, which specifies repetitively inspecting the tail plane assembly for a crack.

We also reviewed BT No. 189-070, Revision A, dated October 13, 2016, which provides instructions for replacing the tail plane lower fitting with the improved tail plane lower fitting, retromodification part number (P/N) 8G0000P00511.

This proposed AD would require, within 50 hours time-in-service (TIS), replacing the tail plane fitting with tail plane retromodification kit P/N 8G0000P00511.

The EASA AD requires inspecting the tail plane lower fitting for play within 50 flight hours and thereafter at intervals not to exceed 25 flight hours. If a crack or other damage exists, the EASA AD requires the improved tail plane lower fitting be installed within 10 flight hours. If no crack exists, the EASA AD requires that the improved tail plane lower fitting be installed within 200 flight hours or 2 months, whichever occurs first. This proposed AD would not require inspections and would require installing the improved tail plane lower fitting within 50 hours TIS.

We estimate that this proposed AD would affect 2 helicopters of U.S. Registry and that labor costs average $85 a work-hour. Based on these estimates, we expect that replacing the tail plane lower fitting with an improved tail plane lower fitting would require 64 work-hours and parts would cost $15,424 for a total cost of $20,864 per helicopter and $41,728 for the U.S. fleet.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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.

For the reasons discussed, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

We propose to adopt a new AD for Robinson R44 and R44 II helicopters with a tail rotor blade part number (P/N) C029-1 or P/N C029-2 installed. This proposed AD would require checking the tail rotor blades for cracks within 50 hours time-in-service (TIS) and thereafter before each flight.

This proposed AD is prompted by reports of P/N C029-1 and P/N C029-2 tail rotor blades with fatigue cracks at the leading edge. The cracks were caused by high fatigue stresses due to resonance when the blades were at high pitch angles from large left pedal inputs. Robinson consequently issued R44 Service Bulletin SB-83, dated May 30, 2012 (SB-83). At the time SB-83 was issued, the reports of cracking on the tail rotor blade were isolated and infrequent. Since 2015, five events have been reported of helicopters with cracking on tail rotor blades. Therefore, we are proposing actions that are intended to detect a cracked tail rotor blade and prevent loss of the blade and subsequent loss of directional control.

We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

We have reviewed Robinson SB-83 which specifies, within 10 flight hours or by June 30, 2012, whichever occurs first, inserting a caution page into the Pilot's Operating Handbook. The caution page specifies inspecting the leading edges of each tail rotor blade for a crack before each flight. The caution page also advises that to reduce fatigue stress damage to the tail rotor blades, pilots should avoid maneuvers that require large left pedal inputs. SB-83 specifies that the caution page may be removed when the tail rotor blades are replaced with tail rotor blade P/N C029-3.

This proposed AD would require within 50 hours TIS and thereafter before each flight, visually checking each tail rotor blade for a crack in the tail leading edge, paying particular attention to the most inboard white paint stripe. An owner/operator (pilot) may perform the required visual check and must enter compliance with the applicable paragraph of the AD into the helicopter maintenance records in accordance with 14 CFR 43.9(a)(1) through (4) and 91.417(a)(2)(v). A pilot may perform this check because it involves only a visual check and can be performed equally well by a pilot or a mechanic. This check is an exception to our standard maintenance regulations.

This proposed AD also would require before further flight, replacing any cracked tail rotor blade.

Robinson SB SB-83 requires compliance within 10 flight hours or by June 30, 2012, whichever occurs first. This proposed AD would require compliance within 50 hours TIS. Given the helicopter's history and the type of operations conducted by the current fleet, we determined that this compliance time is adequate to reduce the risk of a crack on the tail rotor blade to an acceptable level.

We estimate that this proposed AD would affect 1,631 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Visually checking the tail rotor blades for a crack would require 0.2 hour for a cost of $17 per helicopter and $27,727 for the U.S. fleet per check cycle. Replacing a tail rotor blade, if required, would require 2 work-hours and parts would cost $3,080 for a cost of $3,250 per blade.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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.

For the reasons discussed, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA's authority to issue rules regarding aviation safety is found in title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would remove Class E airspace extending upward from 700 feet above the surface at St Marys Airport, St Marys, GA, due to the closing of this airport.

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2018-0255; Airspace Docket No. 18-ASO-6) and be submitted in triplicate to the Docket Management System (see “ADDRESSES” section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0255; Airspace Docket No. 18-ASO-6.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is considering an amendment to title 14, Code of Federal Regulations (14 CFR) part 71 to remove Class E airspace extending upward from 700 feet above the surface at St Marys Airport, St Marys, GA. This airport has closed. Therefore, the airspace is no longer necessary at this site.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

DOT considers a service animal to be any animal that is individually trained to assist to a qualified person with a disability or any animal necessary for the emotional well-being of a passenger.1 U.S. airlines must transport all service animals regardless of species with a few narrow exceptions.2 U.S. airlines are not required to accommodate certain unusual service animals, such as snakes, reptiles, ferrets, rodents, and spiders.3 Under DOT's current rule, airlines may also refuse to carry other animals if the airline determines: (1) There are factors precluding the animal from traveling in the cabin of the aircraft, such as the size or weight of the animal; (2) the animal would pose a direct threat to the health or safety of others; (3) it would cause a significant disruption of cabin service; or (4) the law of a foreign country that is the destination of the flight would prohibit entry of the animal.4 DOT requires foreign air carriers to transport only service dogs.5 However, under DOT rules, a U.S. carrier is held responsible if a passenger traveling under the U.S. carrier's code is not allowed to travel with another type of service animal (e.g., cat) on a flight operated by its foreign code share partner.6

Regarding emotional support animals (ESA) and psychiatric service animals (PSA), DOT requires airlines to recognize these animals as service animals, but allows airlines to require that ESA and PSA users provide a letter from a licensed mental health professional of the passenger's need for the animal.7 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 ESA or PSA.8 ESAs and PSAs differ from one another in that PSAs, like other traditional service animals, are trained to perform a specific task for a passenger with a disability. In contrast, ESAs provide emotional support for a passenger with a mental/emotional disability but are not trained to perform specific tasks. However, DOT expects that all service animals are trained to behave properly in a public setting.

Under the existing service animal regulations, it is generally not permissible to insist on written credentials or documentation for an animal as a condition for treating it as a service animal, except for an ESA or PSA. DOT requires airlines to accept animals as service animals based on the “credible verbal assurances” of the passengers.9 Airlines may also not charge for the transport of service animals.10

The Department's disability rule permits airlines not to transport service animals that pose a direct threat to the health or safety of others or would cause a significant disruption of cabin service. In guidance referenced in the Department's service animal rule, DOT has advised airlines to observe the behavior of the service animal to determine if it is a properly trained animal as such an animal will calmly remain by its owner.11 The animal should not run freely, bark or growl at other persons, urinate or defecate in the gate area, or bite.12 Observing the behavior of the animal assists airline personnel in making a case-by-case determination as to whether the animal may pose a direct threat to the health or safety of others or may create a significant disruption in cabin service. Airlines are not required to accept for transport animals that do not behave properly in public, even if the animal performs an assistive function for a passenger with a disability or is necessary for the passenger's emotional well-being, as the animal could pose a direct threat to the health or safety of others and/or cause a significant disruption of cabin service.13

The Department's current service animal regulation does not contain a limitation on the number of service animals that may accompany an individual with a disability. The regulation references guidance that states that a single passenger legitimately may have two or more service animals.14 As a matter of enforcement discretion, the Department's Office of Aviation Enforcement and Proceedings has not taken action against airlines when airlines declined requests to transport more than three service animals for a single passenger.15 DOT's service animal rule also does not contain any leash, tether, muzzle, or containment requirements. Prior DOT guidance explained that a requirement for a service animal to be muzzled or harnessed would be appropriate only as a means of mitigating a direct threat to the health or safety of others, such as muzzling a dog that barks frequently.16 As for transporting a service animal in a carrier, an order from the Federal Aviation Administration explained that a service animal may safely sit in the lap of its owner for all phases of flight, including ground movement, take-off, and landing if the service animal is no larger than a lap-held child (a child who has not reached his or her second birthday).17

The Department continues to receive complaints from individuals with service animals. DOT received 110 service animal complaints in 2016 and 70 service animal complaints in 2017 against airlines. In 2016, the third highest disability complaint area concerned service animals, and in 2017, it was the fifth highest.18 U.S. and foreign airlines reported receiving 2,443 service animal complaints in 2016 and 2,499 service animal complaints in 2017. This was the fourth largest disability complaint area for airlines during both years. Over 60 percent of the service animal complaints received by the Department concern ESAs and PSAs. Most of the service animal complaints involving ESAs or PSAs are from passengers with disabilities who are upset that the airline is not accepting their animals for transport.

The use of unusual species as service animals has also added confusion. Passengers have attempted to fly with peacocks, ducks, turkeys, pigs, iguanas, and various other types of animals as emotional support or service animals. Airlines have expressed concerns about the amount of attention and resources that are expended when having to accommodate unusual service animals. Disability rights advocates have voiced alarm that these animals may erode the public's trust, which could result in reduced access for many individuals with disabilities who use traditional service animals. Advocates have also expressed concern that these animals lack the ability to be trained to behave properly in a public setting.

Many airlines also indicated that they believe 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 to avoid paying a fee for their pets. The increase in the number of service animals in aircraft cabins has led some to believe that many of these animals are really pets but are being passed off as service animals. There is also concern that vests, harnesses, and other items, which traditionally have been considered to be physical indicators of a service animal's status, are easily purchased online by fliers trying to misrepresent their pets as service animals. Airlines have also reported to the Department that certain entities may, for a fee, be providing individuals with pets a letter stating that the individual is a person with a mental or emotional disability and that their animal is an ESA or PSA, when in fact they are not.

Airlines and airline associations have contacted the Department to express concerns that passengers are increasingly bringing untrained service animals onboard aircraft and putting the safety of crewmembers and other passengers at risk. According to one airline, there has been an 84 percent spike since 2016 in the number of behavior-related service animal problems, including urinating, defecating, or biting. Another airline reports that there has been a 75 percent increase in the number of emotional support animals that it transports when comparing calendar year 2016 to calendar year 2017. This airline appears to believe that this has resulted in a significant increase in onboard incidents. In addition, there have been a few highly-publicized reports of service animals biting passengers. While the current rule anticipates that airline personnel will assess service-animal behavior in the gate area and weed out misbehaving service animals prior to boarding the aircraft, airlines have indicated gate staff are oftentimes too busy to observe the behavior of service animals. Airlines also note that even if they were to observe an animal prior to entering the aircraft, the animal may act differently once exposed to the confinement in the cabin or once the aircraft departs.

Another concern is the differences, in the airport terminal context, between DOT's ACAA regulations that apply to airlines, and their facilities and services, contrasted with the Department of Justice's (DOJ) Americans with Disabilities Act (ADA) regulations that apply to airports, and their facilities and services. DOJ's Title II rules for State and local governments govern airports owned by a public entity; DOJ's Title III rules for public accommodations and commercial facilities govern privately owned airports and airport facilities operated by businesses like restaurants and stores. DOJ defines “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 other mental disability.19 Emotional support animals are not recognized as service animals under Title II and Title III of the ADA. 20 However, under the ACAA, a service animal is any animal that is individually trained to provide assistance to a qualified person with a disability or any animal that assist persons with disabilities by providing emotional support.21 Consequently, a restaurant or store in an airport could, without violating DOJ rules, deny entry to a properly documented emotional support animal or service cat that an airline, under the ACAA, would have to accept. Further, some airports are exercising their authority under the ADA to require that emotional support animals be contained in a pet carrier when traversing through areas of the airport not owned, leased, or controlled by airlines.

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 Air Carrier Access Act regulation that permitted airlines to require documentation and 48 hours' advance notice for users of psychiatric service animals.22 PSDS emphasized that the Department should not equate psychiatric service animals to emotional support animals. It noted that PSAs differ significantly from ESAs in that PSAs are trained to behave properly in public settings and trained to mitigate the effects of a mental health-related disability. PSDS also asserted that the Department is discriminating against and stigmatizing individuals with mental health-related disabilities who use PSAs by imposing additional procedural requirements on users of PSAs that are not imposed on service animals used by individuals with physical disabilities. PSDS further raised practical concerns with the current documentation requirement (e.g., financial hardship on PSA users without health insurance) and advance notice requirement (e.g., difficulty PSA users experience when they need to fly on short notice because of a family emergency). The Department subsequently issued a notice in the Federal Register seeking comment on the group's petition and related questions to assist the Department in determining whether to grant the petition by initiating a rulemaking or to deny the petition and retain the provision without change.23 Interested parties can read the entire petition and comments received at DOT-OST-2009-0093. The Department is granting the petition by issuing this advance notice of proposed rulemaking.

A few months ago, the Department also received a request to initiate a rulemaking to amend its service animal regulation from Airlines for America (A4A). A4A asks that DOT harmonize its service animal definition under its Air Carrier Access Act regulation with the DOJ's Americans with Disabilities Act regulation. A4A would also like the Department to allow airlines to require all service animal users to provide a letter from a licensed physician or mental health professional stating that the passenger is under his or her care for the condition requiring the service animal and specifying that the passenger needs the animal for an accommodation in air travel or at the passenger's destination. It asks that DOT delete all mentions in DOT's ACAA regulations or guidance suggesting that items such as vests, harnesses, ID cards, or other potential indicators other than a letter described above should be accepted as proof that the animal is qualified to be carried. A4A further asks that if DOT allows ESAs and PSAs, it limit the types of ESAs and PSAs that airlines are required to accommodate.24 In a subsequent letter to the Department, A4A stressed the need to amend the Department's service animal regulation to protect the health and safety of passengers and crew because of an increase in passengers bringing animals onboard that have not been properly trained as service animals. In that letter, A4A noted that it expects airlines will be taking the appropriate steps to ensure the safety and health of passengers and crew.25 In February 2018, ten disability advocacy organizations expressed concern to the Department with the revised service animal policies announced by two airlines and urged the Department to take action to stop the proliferation of patch work service animal access requirements.26

In response to the President's direction in Executive Orders (E.O.) 13771, E.O. 13777, and E.O. 13783, as well as other legal authorities, the Department published a Notice of Regulatory Review in the Federal Register on October 2, 2017, inviting public comment on existing rules and other agency actions that are good candidates for repeal, replacement, suspension, or modification. 27 The Department received comments from airlines and airline associations regarding the need to revise the Department's ACAA service animal regulations, raising a number of issues that will be explored in this rulemaking.28

The FAA Extension, Safety, and Security Act of 2016 requires that the Department issue a supplemental notice of proposed rulemaking on five issues—(1) supplemental medical oxygen; (2) service animals; (3) accessible lavatories on single-aisle aircraft; (4) carrier reporting of disability service requests; and (5) seating accommodations. With respect to service animals, the rulemaking needs to address, at a minimum, species limitations and the documentation requirement for users of emotional support and psychiatric service animals.29

In April 2016, DOT established an Advisory Committee on Accessible Air Transportation (ACCESS Advisory Committee) to negotiate and develop a proposed rule concerning accommodations for air travelers with disabilities addressing in-flight entertainment/communications, accessible lavatory on new single-aisle aircraft, and service animals.30 The ACCESS Advisory Committee, comprised of 27 members, was tasked with submitting three recommendations to the Department—one on each of the three separate issues. Because the negotiations address three disparate issues and some Committee members did not have a stakeholder and/or expert interest with respect to certain issues, each Committee member determined for himself or herself whether they would work on one or more of the issues. Of the 27 Committee members, 19 had stakeholder and/or expert interest with respect to service animals and actively worked on service animal issues. These members represented a balanced cross-section of significantly affected stakeholder interests.31

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 was able to gather useful information during this process from disability rights advocates, the airline industry, an association representing flight attendants, and other interested parties. The Committee members and other interested parties spent considerable time discussing 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. Each of these issues are discussed in turn.

Airlines uniformly opposed the continued recognition of ESAs in the ACAA context, as they are not recognized under the ADA.32 Carriers urged DOT to harmonize its definition of service animal under the ACAA with the DOJ definition of service animal under the ADA by eliminating ESAs and limiting service animals to dogs and where reasonable miniature horses.33 Carriers also proposed eliminating access for emotional support animals as they consider these animals to cause most in-flight disruptions.

Advocates were united in supporting access for emotional support animals under the ACAA and wanted a legal classification for ESAs separate from service animals in recognition of the fact that emotional support animals are not trained to perform work or tasks to mitigate disability.34 However, they disagreed about which species should be allowed access as emotional support animals and what type of access they should have.

Two disability organizations—International Association of Canine Professionals and Assistance Dogs International—proposed limiting ESAs to cats and dogs and requiring that they be in approved pet carriers for the duration of a passenger's flight unless needed for disability mitigation. These two organizations stated that they do not support including rabbits as ESAs because rabbits may excrete out of the carrier.35 Five disability organizations—Psychiatric Service Dog Partners, Guide Dog Foundation for the Blind, Open Doors Organization, National Multiple Sclerosis Society, Guide Dog Users, Inc.—proposed limiting ESAs to dogs, cats, and rabbits and requiring that they be contained in approved pet carriers, except when needed for disability mitigation. They stated that cats and dogs are common emotional support animals, and rabbits should also be included as they can have soothing tendencies beyond those of cats and dogs. They were opposed to extending ESA status to other animals as they believe employee training and expertise on service animals have limits and are concerned that the proliferation of nontraditional species as service animals would erode public trust toward service animal users generally.36

Six other disability organizations—Paralyzed Veterans of America, National Alliance on Mental Illness, National Federation of the Blind, Autistic Self Advocacy Network, Bazelon Center for Mental Health Law, Easterseals—wanted household birds to also be recognized as ESAs and were in favor of containment for cats, rabbits, and birds, except when needed for disability mitigation.37 They asserted that emotional support dogs that are trained to behave in public, but not trained to provide disability mitigation,38 do not require a pet carrier. The advocates all stated that when the emotional support animal is providing disability mitigation, the animal should be tethered to the handler and under control of the handler.39

Airlines and the flight attendant association urged the Department to allow airlines to require that ESAs that fit in pet carriers be kept there for the duration of the flight, if airlines are required to continue carrying ESAs. The airlines and flight attendant association stated that it would be difficult to enforce a rule that allowed ESAs to be out of the carrier when providing disability mitigation as it would necessitate a subjective assessment by flight attendants as to the reason the ESA is not in the carrier. They also expressed concern about the ability of airline personnel to distinguish between ESAs and PSAs as airline personnel have not been trained to recognize the difference between these animals.

There was a consensus among ACCESS Committee members that the Department should limit the types of species recognized as service animals (including PSAs) and that this limit would provide greater predictability and added assurance of access for individuals with disabilities with legitimate service animals. The discussion about the type of animal that should be recognized as a service animal focused on dogs, miniature horses, capuchin monkeys, and cats. While there was no agreement on whether all the animals should be recognized as service animals, there was agreement that other animals should not be allowed as service animals.

Representatives of airlines and certain disability organizations (Psychiatric Service Dog Partners, Guide Dog Foundation for the Blind & America's VetDogs, International Association of Canine Professionals (IACP), Open Doors Organization, National Federation of the Blind, Assistance Dogs International, and Guide Dog Users, Inc.) supported limiting coverage of service animals to dogs.40

Disability groups supported recognizing capuchin monkeys as service animals,41 with a requirement that they must be kept in a pet carrier due to their unpredictable aggressive behavior. Capuchin monkeys provide in-home services to individuals with paraplegia and quadriplegia and are used by individuals with disabilities primarily or exclusively in their homes. Those who support recognizing capuchin monkeys as service animals pointed out that they can perform manually dexterous work or tasks that dogs and miniature horses cannot. It was also pointed out that air travel for these monkeys as service animals could be limited to when individuals with disabilities have to leave home due to an emergency or for the initial delivery of the monkey to the individual with a disability.

There was also general support among disability rights advocates to provide, on a case-by-case basis, access to miniature horses trained to provide disability mitigation.42 Miniature horses have specific features that make them a better choice for some persons with disabilities—longer working life, allergen avoidance, religious conformance, and soundness of structure for mobility work.

Some disability rights organizations (Paralyzed Veterans of America, National Alliance on Mental Illness, Autistic Self Advocacy Network, Bazelon Center for Mental Health Law, Easterseals, National Multiple Sclerosis Society) supported recognizing cats as service animals as there was a suggestion that cats provide disability mitigation related to seizure alert.

Airlines and certain other disability rights organizations (Psychiatric Service Dog Partners, Guide Dog Foundation for the Blind & America's VetDogs, International Association of Canine Professionals (IACP), Open Doors Organization, National Federation of the Blind, Assistance Dogs International, Guide Dog Users, Inc.) opposed recognizing cats as service animals as they are not recognized as service animals under the ADA and the information about cats' ability to alert individuals of seizures was limited.43 There was also concern expressed that the popularity of cats as pets would open the door for fraud if they are an allowed species.

During the negotiations, the advocates and airlines both appeared to agree that reasonable restrictions should be imposed on the number of service animals that one passenger should be permitted to carry. On balance, the advocates and airlines also appeared to agree that certain passengers may have a legitimate need to travel with more than one service animal. Both the airlines and advocates appear to support a requirement that a passenger seeking to travel with more than one service animal may be required to provide reasonable justification to the airline as to the passenger's need to do so. However, there did not appear to be agreement on what would constitute reasonable justification. The airlines also supported a limit of two service animals for any single passenger.44 There did not appear to be agreement from the advocates on the number of service animals that a single passenger should be allowed to carry.

Various disability rights advocates have stated that a top goal is the elimination of the current DOT requirement to provide medical documentation as a condition of access for users of PSAs and ESAs. As a possible alternative to the documentation requirements for ESAs and PSAs in the current rule, the advocates on the committee proposed the use of a “Decision Tree” model. Under this model, all individuals with a disability who wished to travel with a service animal would fill out an online questionnaire, wherein they would provide answers to questions targeted toward assisting the airline to determine specifics about the service animal/emotional support animal in question (e.g., species of animal, whether the animal is a service animal or an emotional support animal, and number of animals). During this process, information would also be provided to the passenger regarding his or her responsibilities when traveling with a service animal (e.g., how a service animal should behave and the consequences for fraudulently representing a pet as a service animal).45

The majority of the U.S. airlines appeared to be receptive to the idea of the decision tree, but would only accept that option as an alternative to the current documentation requirements if it were made mandatory for all individuals with a disability traveling with a service animal to complete as a condition of travel, and if it included strong language designed to dissuade individuals from committing fraud by plainly stating the consequences that would follow should an individual attempt to falsely claim that their pet is a service animal.46 The advocates were mostly opposed to making the decision tree mandatory because they believed that making it mandatory would increase the burden for service animal users who, under the current rule, are not required to provide documentation or advance notice when traveling with a service animal. The foreign airlines appeared not to support the decision tree model even if mandatory.

Various suggestions were made as possible compromises, including a mandatory attestation statement that all individuals traveling with a service animal would certify in lieu of the proposed decision tree or existing documentation requirement for PSAs and ESAs. Under this alternative, individuals with disabilities traveling with a service animal would certify that their animal is a service animal on a one-page online certification form. The attestation language would serve the dual purpose of: (1) Educating individuals on what a service animal is and who is permitted to bring a service animal on board; and (2) dissuading individuals from trying to falsely claim that their pet is a service animal. It was also suggested that the attestation be saved in a traveler's profile so that a passenger would not be subject to the certification process repeatedly.

The advocates and the airlines appeared to support the attestation model as a deterrent to individuals who might seek to falsely claim that their pets are service animals.47 However, the airlines also sought an additional requirement that individuals attest to having been diagnosed by a third party as having a disability. The advocates were not in favor of adding this requirement, arguing that that the term “disability” is a legal term and that all individuals with disabilities may not have necessarily received such a diagnosis, e.g., a blind person does not typically receive a diagnosis that he or she is blind. Discussions eventually reached a stalemate on this point and the ACCESS Committee members voted to discontinue discussions on the service animal issue.

In this ANPRM, the Department solicits comment on the following issues: (1) Whether psychiatric service animals should be treated similar to other service animals; (2) whether there should be a distinction between emotional support animals and other service animals; (3) whether emotional support animals 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 airlines are required to transport should be limited; (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 animal has 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 is only allowed to travel with a service dog on a flight operated by its foreign code share partner.

The Department is committed to ensuring access for service animal users on aircraft but also recognizes that airlines have a responsibility to ensure the health, safety, and welfare of passengers and employees. The Department requests data on the number of service animals that travel by air annually and the number of behavior-related service animal problems that occur annually. The Department also requests this data separately for emotional support animals if available. The Department is taking this action to ensure that the air transportation system is safe and accessible for everyone.

Should the DOT amend its service animal regulation so psychiatric service animals are treated the same as other service animals? DOT's current service animal regulation allows airlines to require a user of a psychiatric service animal or emotional support animal to provide airlines with medical documentation and up to 48 hours' advance notice prior to travel. This provision was adopted to address the problem of passengers attempting to pass their pets as ESAs or PSAs so they can travel for free in the aircraft cabin. We seek comments from airlines and other interested persons about their experiences with passengers attempting to pass off pets as service animals, especially as it may relate to PSAs.

Many PSA users feel that the DOT requirement stigmatizes and discriminates against people with mental health-related disabilities because individuals with physical disabilities or hidden medical disabilities who use service animals do not have to provide the same documentation as a service animal user with a mental health disability. What, if any, experience do airlines have with people attempting to bring pets on board aircraft based on claims that the animals are service animals for disabilities that are not readily apparent other than mental health-related conditions, such as seizure disorders or diabetes?

Also, PSAs are recognized as a service animal under DOJ's ADA regulation. Under the ADA regulations, the regulated entities may not require documentation as a condition for entry for service animals including PSAs. Should DOT harmonize its service animal regulation under the ACAA with DOJ's ADA service animal regulation and prohibit airlines from requiring PSA users to provide a letter from a licensed mental health professional as a condition for travel? If airlines are no longer allowed to require medical documentation from PSA users, what effective alternative methods are there to prevent fraud? For example, if there is no medical documentation requirement for PSAs but such a requirement remains for ESAs, what would prevent individuals from asserting that their ESA is a PSA? How would airline personnel be able to distinguish between a PSA and an ESA? We invite the public, particularly service animal users, to propose methods of detecting and preventing fraud that they believe are feasible alternatives to the current medical documentation requirements for PSAs. The Department notes that the ACAA is a specialized statute that applies to an environment where many people are confined within a limited space for what may be a prolonged time. Is that sufficient reason for DOT's treatment of PSAs under its ACAA regulation to differ from that of DOJ under its ADA regulation? What are the practical implications of no longer allowing airlines to require medical documentation from PSA users?

Psychiatric Service Dog Partners, Guide Dog Foundation for the Blind and America's VetDogs (United Service Animal Users) have provided the Department a report regarding the burden on PSA users of the current system's focus on third-party documentation. According to the report submitted by the United Service Animal Users, the average cost to a service animal user to obtain medial documentation is $156.77 and it takes an average of 31 days to obtain such a documentation. United Service Animal Users states that more than 75% of individuals surveyed have either not flown or flown less because of this requirement.48 Do you agree with the data in this report? Explain the basis of your agreement or disagreement. Do the costs to users of PSAs of providing medical documentation outweigh the benefits to airlines of requiring such documentation?

Regarding the 48 hours' advance notice requirement for PSAs and ESAs, the Department put in place that requirement to provide airlines sufficient time to review and determine the validity of the medical documentation provided by the passenger. If the Department were no longer to allow airlines to require medical documentation from a PSA user, should the 48 hours' advance notice requirement be eliminated? We solicit comment on whether there is any reason to retain the advance notice requirement for PSAs if there is no longer a documentation requirement for PSAs. Also, what has been the impact of the 48 hours' notice requirement on individuals with psychiatric service animals?

The Department is seeking comment on whether it should continue to include ESAs in its definition of a service animal under the ACAA. ESAs are not recognized as service animals in regulations implementing the ADA. Unlike other service animals, ESAs are not trained to perform a specific active function, such as pathfinding, picking up objects, or responding to sounds. This has led some service animal advocacy groups to question their status as service animals and has led to concerns by carriers that permitting ESAs to travel in the cabin has opened the door to abuse by passengers wanting to travel with their pets. Airlines also assert that DOT should exclude emotional support animals from its definition of a service animal under the ACAA to be consistent with the definition of service animal under the ADA.

Others favored keeping emotional support animals as a separate and distinct category from service animals that are still entitled to protections under the ACAA. For example, the U.S. Department of Housing and Urban Development (HUD), which enforces the Fair Housing Act regulations, considers animals that provide emotional support to persons with disabilities to be assistance animals.49 HUD allows housing providers to require a letter from a medical doctor or therapist to demonstrate that the animal is a legitimate assistance animal. The Department seeks comment on whether the amended definition of a service animal should include emotional support animals. Alternatively, the Department seeks comment on whether emotional support animals should be regulated separately and distinctly from service animals? If yes, should DOT allow airlines to require ESA users to provide a letter from a licensed mental health professional stating that the passenger is under his or her care for the condition requiring the ESA and specifying that the passenger needs the animal for an accommodation in air travel or at the passenger's destination? Would such a documentation requirement be stringent enough to prevent individuals who do not have disabilities from skirting the rules by falsely claiming that their pets are ESAs? Suggestions are welcome on approaches to minimize the use of letters from licensed mental health professionals that enable passengers without disabilities to evade airline policies on pets. Are there other types of documents or proof that could be required for carriage of ESAs in the passenger cabin that would be just as effective? Is advance notice of a passenger's intent to travel with an ESA needed to provide the airline time to review documents or other proof? If the documentation needed to fly with an ESA is rigid, would ESA users be less likely to fly and choose other modes of transportation? The Department seeks comment on the practical implications of these options.

If DOT adopts a rule that continues to require that ESAs be accepted for transport in the aircraft cabin, should DOT allow airlines to require that ESAs be in carriers for the duration of a flight? There appears to be a belief among airlines, a flight attendant association, and others that the increase in misbehavior by service animals on aircraft is largely attributed to the increase in use of emotional support animals. DOT requests any available information to confirm or dispel this belief. Further, because the ADA does not require airports to recognize or allow ESAs as service animals, some airports are requiring that emotional support animals be contained in a pet carrier when traversing through areas of the airport not owned, leased, or controlled by airlines. Considering these concerns, the Department seeks comment on when, if at all, should emotional support animals be contained in a pet carrier. What should be done if the emotional support animal is too large to fit in a pet carrier? Commenters should also consider that recent changes to aircraft configuration and seating, e.g., economy seating vs. seating with extra leg room, means that there may be limitations with respect to containment requirements given the availability of passenger foot space.

The Department seeks comment on what, if any, limitations on species should be imposed for service animals/emotional support animals. All major stakeholders—disability rights advocates, airlines, flight attendant associations—appear to agree that limiting the types of species recognized as service animals would provide greater predictability and prevent the erosion of the public's trust which could reduce access for individuals with disabilities. Some prefer that the Department limit coverage of service animals to dogs, which are the most common service animals used by individuals with disabilities. This is consistent with the DOJ definition of service animals under the ADA and the existing ACAA requirement for the type of service animal that foreign air carriers are required to transport. It is also our understanding that service dogs are by far the dominant type of animals used to assist individuals with disabilities. Although accounts of unusual service animals receive wide publicity, cases of unusual service animals, such as turkeys and pigs, being transported on aircraft are not common. As such, would limiting the species of recognized service animals to dogs cause harm to individuals with disabilities? We request data, if available, about the type of service animals that airlines transport year-over-year. The Department also seeks comment on whether any safety-related reasons specific to foreign carriers may preclude the carriage of service animals other than dogs on their flights.

Others would like for capuchin monkeys and miniature horses to also be recognized as service animals or, in the alternative, provided access on a case-by-case basis. Some individuals with disabilities prefer miniature horses to dogs because of allergies to dogs, religious reasons, or because miniature horses live longer, have excellent vision, and are better at assisting their owners with balance while walking. While DOJ does not recognize miniature horses as service animals, entities covered by the ADA are required to modify their policies to permit miniature horses where reasonable.50 Those who advocate for recognizing a capuchin monkey as a service animal emphasize how essential the capuchin monkeys are in caring for individuals who are paralyzed or otherwise limited in mobility. DOJ, in deciding not to recognize capuchin monkeys in its definition of service animals for purposes of its regulation implementing the ADA noted “their potential for disease transmission and unpredictable aggressive behavior.” 75 FR 56164, 56194 (September 5, 2010). Subject to existing applicable health and safety regulations,51 should the DOT designate capuchin monkeys or miniature horses as service animals under the ACAA? Can the health and safety concerns related to capuchin monkeys be adequately addressed if there was a requirement that these animal travel in pet carriers? The Department also seeks comment on whether any amended service animal rule should designate cats or any other animal as eligible species to be a service animal.

If the Department were to adopt a rule that continues to require airlines to accept ESAs for transport, what species of animals should be accepted as ESAs? During the Department's ACCESS Committee meetings, the four species that were mentioned as possibilities are dogs, cats, rabbits, and household birds. Should the Department limit the transport of ESAs to dogs particularly if a service animal is defined to be a dog? What is the impact on passengers with disabilities if an ESA is limited to dogs? Are cats, rabbits, and birds common emotional support animals? Are there any other emotional support animals that are widely used by individuals with disabilities?

The Department's service animal rule does not limit the number of service animals that one passenger may bring on an aircraft. A single passenger legitimately may have more than one service animal. For example, a person who is deaf and has panic attacks may use one service animal to alert him or her to sounds and another to calm him or her. A person may also need more than one animal for the same task, such as assisting with stability when walking. However, the Department's Office of Aviation Enforcement and Proceedings, as a matter of prosecutorial discretion, has chosen not to pursue action against carriers that refuse to accept more than three service animals per person. The Department seeks comment on whether to limit the number service animals/emotional support animals that a single passenger may carry onboard a flight. If so, what should the number limit be? The Department also seeks comment on whether justification should be required for a single passenger to be allowed to carry more than one service animal/emotional support animal. If so, what would the parameters of that justification be?

A4A and others have urged the Department to revise its service animal regulation to address an increase in passengers bringing animals onboard that have not been appropriately trained as service animals.52 The guidance document referenced in the Department's service animal regulation states that an animal that engages in disruptive behavior, such as running around freely in the aircraft or airport, barking, or growling repeatedly at people, biting, and jumping on people, or urinating or defecating in the cabin or gate area, shows that it has not been successfully trained to function as a service animal in a public setting. Airlines are not required to accept for transport animals that do not behave properly in public; on the other hand, the regulation does not specify how an airline can be assured that a service animal has been trained to behave appropriately in a public setting. Airlines also explained of the difficulties their employees experience in observing animal behavior prior to a flight given the lack of staffing and the hectic and time-sensitive nature of air travel. The Department seeks comment on whether it should amend its service animal regulation to allow airlines to require that all service animal users attest that their animal can behave properly in a public setting. The Department also solicits comments on alternatives to a documentation requirement to assess the service animal's behavior.

The ADA prohibits covered entities from requiring documentation, such as proof that the service animal has been trained to behave appropriately as a condition for entry. Is the need for assurance that the service animal can behave properly greater in air travel, as air travel involves people being in a limited space for a prolonged period without the ability to freely leave once onboard the aircraft? Would a provision allowing airlines to require service animal users attest that their animal has been successfully trained to function as a service animal in a public setting reduce the safety risk that passengers, airline staff, and other service animals face from untrained service animals? What is the impact on individuals with disabilities of allowing airlines to require attestation as a condition for permitting an individual to travel with his or her service animal? If such a provision is allowed, should airlines be able to require the attestation in advance of travel? How long in advance of travel? What options exist for preventing any advance documentation requirement from being a barrier to travel for people with disabilities? What is the proper balance between ensuring passengers with disabilities do not encounter barriers to air travel and protecting the health and safety of passengers and airline crew? If DOT allows airlines to require attestation that an animal has received public access training, should the attestation be limited to certain types of service animals? Why or why not?

DOT expects that a service animal will be under the control of its user, but DOT's service animal regulation does not contain any leash, tether, or harness requirement. We seek comment on whether tethering or other similar restrictions should be a condition for permitting travel with a service animal. The DOJ's service animal regulation requires that dogs and miniature horses be harnessed, leashed or tethered unless the device interferes with the animal's work or the individual with a disability is unable to hold a tether because of his or her disability. In such cases, the individual with a disability may control his service animal by some other means, such as voice control. Should DOT adopt a similar requirement? Would such a requirement further minimize the likelihood of unwelcome or injurious behavior by a service animal to other passengers or airline staff? What are the advantages or disadvantages in adopting this type of requirement?

Airlines have also expressed safety concerns about large service animals in the cabin, particularly large emotional support animals that have not received disability-mitigation training. Some airlines have urged the Department to consider instituting size and weight restrictions for emotional support animals. The current rule contemplates that a service animal would not be permitted to accompany its user at his or her seat if the animal blocks a space that, per FAA or applicable foreign government safety regulations, must remain unobstructed (e.g., an aisle, access to an emergency exit) and the passenger and animal cannot be moved to another location where such a blockage does not occur. The Department provides guidance in the current rule that if the passenger and animal cannot be moved, carriers should first talk with other passengers to find a seat location where the service animal and its user can be agreeably accommodated (e.g., by finding a passenger who is willing to share foot space with the animal).53

While the Department previously concluded that a service animal's reasonable use of a portion of an adjacent seat's foot space does not deny another passenger effective use of the space for his or her feet and is not an adequate reason for the carrier to refuse to permit the animal to accompany its user at his or her seat, some airlines have indicated that passengers feel pressured to agree to such an arrangement and have later expressed to airline personnel their dissatisfaction at having to share their foot space. The Department seeks comment on whether it should allow airlines to limit the size of emotional support animals or other service animals that travel in the cabin and the implications of such a decision. The Department also seeks comment on whether passengers would find it burdensome to share foot space with service animals and what concerns passengers might have with such an arrangement.

Recently, a few airlines have begun requiring service animal users to provide information about their animal's health and behavior as a condition for travel. These airlines state that there has been a significant increase in the number of service animal/emotional support animal transportation requests they receive as well as an increase in reported animal incidents of misbehavior, including urination, defecation, and biting. The airlines assert that the health and behavior records of the animals are necessary to protect their customers, employees and other service animals on board aircraft should they be bitten.54 They also contend that producing animal health records would not be burdensome for service animal users as most, if not all, States require animals to be vaccinated. We ask airlines for available data on how many incidents of misbehavior, particularly incidents of biting, airlines have experienced, as well as any data demonstrating an increase in these incidents. What amount of increase in animal misbehavior, if any, is sufficient to warrant a general requirement for a veterinary form regarding the health and behavior of a service animal without an individualized assessment that a service animal or emotional support animal would pose a direct threat to the health or safety of others or would cause a significant disruption in the aircraft cabin? We ask passengers with disabilities to provide information regarding what, if any, burdens may exist should they be required to submit veterinary forms related to the health or behavior of their service animal.

The American Veterinary Medical Association (AVMA) has raised concerns with the Department about airlines' service animal forms, which require veterinarians to attest to the animal's behavior as well as the animal's health. The AVMA explained to the Department that veterinarians cannot guarantee the behavior of an animal particularly in a new environment like an aircraft but can provide information based on their observations of the animal during a physical examination and discussions with the animal's owner regarding whether the animal has been aggressive in the past. AVMA emphasized to the Department that expanding the scope of the veterinary form beyond health information of the animal and behavioral information of the animal based on the veterinarian's observations could lead to refusals by veterinarians to fill out these forms, which would result in more service animals being denied air transportation.

Through discussions with representatives of many disability rights organizations and a joint letter from ten disability rights organizations, the Department is aware of some of the concerns of service animal users. Psychiatric Service Dog Partners stated that any requirement for health or other forms that applies to PSAs without applying to other service animals is discriminatory. The American Council of the Blind (ACB), the National Federation of the Blind (NFB), and other disability rights organizations pointed out that blind people have used guide dogs safely for decades and should not now have barriers placed on travel. Other disability organizations, such as Paralyzed Veterans of America, emphasized that the airlines should not be requiring such forms unless the airline determines that the animal would pose a direct threat to the health or safety of others or would cause a significant disruption of cabin service based on an individualized assessment.

Disability rights advocates also pointed out that the way airlines implement their policies for veterinarian forms may be problematic and negatively impact passengers with disabilities. For example, airline policies that all or certain service animal users provide a veterinarian form related to the health or behavior of their animal 48 hours in advance of scheduled travel means persons with disabilities are unable to fly should there be an emergency. Policies that animals be visually verified at airport check-in would prevent the ability of passengers with disabilities to check-in online like other passengers. Airlines establishing their own policies for travel with a service animal could also mean a patchwork of service animal access requirements, making it difficult for persons with disabilities to know what to expect and how to prepare for travel. The Department seeks comment on whether its service animal regulation should explicitly prohibit airlines from requiring veterinarian forms as a condition for permitting travel with a service animal beyond those specifically allowed by the Department in its regulation unless there is individualized assessment that such a documentation is necessary. If veterinarian forms are not allowed to be required as a condition for travel, what about other types of documentation to ensure that the animal is not a public health risk to humans? Specifically, the Department seeks comment on whether airlines should be allowed to require that service animal users provide evidence that the animal is current on the rabies vaccine as that vaccine is required by all 50 states for dogs and by most states for cats. Finally, should airlines be permitted to require passengers to obtain signed statements from veterinarians regarding the animal's behavior. And if so, what recourse should be available for service animal users if the veterinarian refuses to fill out the behavior form.

Currently, foreign airlines are only required to transport service dogs, including emotional support and psychiatric service dogs, barring a conflict with a foreign nation's legal requirements. However, a U.S. carrier that code-shares with a foreign carrier could legally be held liable for its foreign codes-share partner's failure to transport other service animal species on code-share flights. While the Department's Office of Aviation Enforcement and Proceedings has not taken action against U.S. carriers under these circumstances, the Department seeks comment on whether the rule should explicitly state that U.S. carriers would not be held responsible for its foreign code-share partner's refusal to transport transportation service animals other than dogs.

This action has been determined to be significant under Executive Order 12866, as amended by Executive Order 13563, and the Department of Transportation's Regulatory Policies and Procedures. It has been reviewed by the Office of Management and Budget under that Order. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” Additionally, Executive Orders 12866 and 13563 require agencies to provide a meaningful opportunity for public participation. Accordingly, we have asked commenters to answer a variety of questions to elicit practical information about alternative approaches and relevant technical data. These comments will help the Department evaluate whether a proposed rulemaking is needed and appropriate. This action is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is an advance notice of proposed rulemaking.

This ANPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (Federalism). This document does not propose any regulation that (1) has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government, (2) imposes substantial direct compliance costs on State and local governments, or (3) preempts State law. States are already preempted from regulating in this area by the Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This ANPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (Consultation and Coordination with Indian Tribal Governments). Because none of the topics on which we are seeking comment would significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. A direct air carrier or foreign air carrier is a small business if it provides air transportation only with small aircraft (i.e., aircraft with up to 60 seats/18,000-pound payload capacity). See 14 CFR 399.73. If the Department proposes to adopt the regulatory initiative discussed in this ANPRM, it is possible that it may have some impact on some small entities but we do not believe that it would have a significant economic impact on a substantial number of small entities. We invite comment to facilitate our assessment of the potential impact of these initiatives on small entities.

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), no person is required to respond to a collection of information unless it displays a valid OMB control number. This ANPRM does not propose any new information collection burdens.

The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this document.

The Department has analyzed the environmental impacts of this ANPRM pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4. In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. Paragraph 3.c.6.i of DOT Order 5610.1C categorically excludes “[a]ctions relating to consumer protection, including regulations.” The purpose of this rulemaking is to seek public comment on the Department's service animal regulations. The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

On July 21, 2010, President Obama signed the Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).2 Title VII of the Dodd-Frank Act amended the Commodity Exchange Act (“CEA”) 3 to establish a comprehensive regulatory framework designed to reduce risk, to increase transparency, and to promote market integrity within the financial system by, among other things: (1) Providing for the registration and regulation of SDs and MSPs; (2) imposing clearing and trade execution requirements on standardized derivative products; (3) creating recordkeeping and real-time reporting regimes; and (4) enhancing the Commission's rulemaking and enforcement authorities with respect to all registered entities and intermediaries subject to the Commission's oversight.

Section 731 of the Dodd-Frank Act added a new section 4s to the CEA setting forth various requirements for SDs and MSPs. In particular, section 4s(e) of the CEA directs the Commission to adopt rules establishing minimum initial and variation margin requirements on all swaps 4 that are (i) entered into by an SD or MSP for which there is no Prudential Regulator 5 (collectively, “covered swap entities” or “CSEs”) and (ii) not cleared by a registered derivatives clearing organization (“uncleared swaps”).6 To offset the greater risk to the SD or MSP 7 and the financial system arising from the use of uncleared swaps, these requirements must (i) help ensure the safety and soundness of the SD or MSP and (ii) be appropriate for the risk associated with the uncleared swaps held as an SD or MSP.8

To this end, the Commission promulgated the CFTC Margin Rule in January 2016,9 establishing requirements for a CSE to collect and post initial 10 and variation margin 11 for uncleared swaps, which requirements vary based on the type of counterparty to such swaps.12 These requirements generally apply only to uncleared swaps entered into on or after the compliance date applicable to a particular CSE and its counterparty (“covered swap”).13 An uncleared swap entered into prior to a CSE's applicable compliance date for a particular counterparty (“legacy swap”) is generally not subject to the margin requirements in the CFTC Margin Rule.14

To the extent that more than one uncleared swap is executed between a CSE and its covered counterparty, the CFTC Margin Rule permits the netting of required margin amounts of each swap under certain circumstances.15 In particular, the CFTC Margin Rule, subject to certain limitations, permits a CSE to calculate initial margin and variation margin, respectively, on an aggregate net basis across uncleared swaps that are executed under the same eligible master netting agreement (“EMNA”).16 Moreover, the CFTC Margin Rule permits swap counterparties to identify one or more separate netting portfolios (i.e., a specified group of uncleared swaps the margin obligations of which will be netted only against each other) under the same EMNA, including having separate netting portfolios for covered swaps and legacy swaps.17 A netting portfolio that contains only legacy swaps is not subject to the initial and variation margin requirements set out in the CFTC Margin Rule.18 However, if a netting portfolio contains any covered swaps, the entire netting portfolio (including all legacy swaps) is subject to such requirements.19

A legacy swap may lose its legacy treatment under the CFTC Margin Rule, causing it to become a covered swap and causing any netting portfolio in which it is included to be subject to the requirements of the CFTC Margin Rule. For reasons discussed in the CFTC Margin Rule, the Commission elected not to extend the meaning of legacy swaps to include (1) legacy swaps that are amended in a material or nonmaterial manner; (2) novations of legacy swaps; and (3) new swaps that result from portfolio compression of legacy swaps.20 Therefore, and as relevant here, a legacy swap that is amended after the applicable compliance date may become a covered swap subject to the initial and variation margin requirements in the CFTC Margin Rule, and netting portfolios that were intended to contain only legacy swaps and, thus, not be subject to the CFTC Margin Rule may become so subject.

In late 2017, as part of the broader regulatory reform effort following the financial crisis to promote U.S. financial stability and increase the resolvability and resiliency of U.S. global systemically important banking institutions (“U.S. GSIBs”) 21 and the U.S. operations of foreign global systemically important banking institutions (together with U.S. GSIBS, “GSIBs”), the Board, FDIC, and OCC adopted the QFC Rules. The QFC Rules establish restrictions on and requirements for uncleared qualified financial contracts 22 (collectively, “Covered QFCs”) of GSIBs, the subsidiaries of U.S. GSIBs, and certain other very large OCC-supervised national banks and Federal savings associations (collectively, “Covered QFC Entities”).23 They are designed to help ensure that a failed company's passage through a resolution proceeding—such as bankruptcy or the special resolution process created by the Dodd-Frank Act—would be more orderly, thereby helping to mitigate destabilizing effects on the rest of the financial system.24 To help achieve this goal, the QFC Rules respond in two ways.25

First, the QFC Rules generally require the Covered QFCs of Covered QFC Entities to contain contractual provisions explicitly providing that any default rights or restrictions on the transfer of the Covered QFC are limited to the same extent as they would be pursuant to the Federal Deposit Insurance Act (“FDI Act”) 26 and Title II of the Dodd-Frank Act, thereby reducing the risk that those regimes would be challenged by a court in a foreign jurisdiction.27

Second, the QFC Rules generally prohibit Covered QFCs from allowing counterparties to Covered QFC Entities to exercise default rights related, directly or indirectly, to the entry into resolution of an affiliate of the Covered QFC Entity (“cross-default rights”).28 This is to ensure that counterparties of solvent affiliates of a failed entity cannot terminate their contracts with the solvent affiliate based solely on that failure.29

Covered QFC Entities are required to enter into amendments to certain pre-existing Covered QFCs to explicitly provide for these requirements and to ensure that Covered QFCs entered into after the applicable compliance date for the rule explicitly provide for the same.30

As noted above, the current definition of EMNA in Commission regulation 23.151 allows for certain specified permissible stays of default rights of the CSE. Specifically, consistent with the QFC Rules, the current definition provides that such rights may be stayed pursuant to a special resolution regime such as Title II of the Dodd-Frank Act, the FDI Act, and substantially similar foreign resolution regimes.31 However, the current EMNA definition does not explicitly recognize certain restrictions on the exercise of a CSE's cross-default rights required under the QFC Rules.32 Therefore, a pre-existing EMNA that is amended in order to become compliant with the QFC Rules or a new master netting agreement that conforms to the QFC Rules will not meet the current definition of EMNA. A CSE that is a counterparty under such a master netting agreement—one that does not meet the definition of EMNA—would be required to measure its exposures from covered swaps on a gross basis, rather than aggregate net basis, for purposes of the CFTC Margin Rule.33

The Commission wants to protect market participants from being disadvantaged due to their master netting agreements not meeting the requirements of an EMNA solely as a result of such agreements' compliance with the QFC Rules. Accordingly, the Commission proposes to add a new paragraph (2)(ii) to the definition of “eligible master netting agreement” in Commission regulation 23.151 and make other minor related changes to that definition such that a master netting agreement may be an EMNA even though the agreement limits the right to accelerate, terminate, and close-out on a net basis all transactions under the agreement and to liquidate or set-off collateral promptly upon an event of default of the counterparty to the extent necessary for the counterparty to comply with the requirements of part 47, subpart I of part 252, or part 382 of title 12, as applicable. These enumerated provisions contain the relevant requirements that have been added by the QFC Rules.

Covered QFC Entities must conform to the requirements of the QFC Rules for Covered QFCs entered into on or after January 1, 2019 and, in some instances, Covered QFCs entered into before that date.34 To do so, a Covered QFC Entity may need to amend the contractual provisions of its pre-existing Covered QFCs.35 Legacy swaps that are so amended by a Covered QFC Entity and its counterparty would become covered swaps under the current CFTC Margin Rule.36 Therefore, in order not to disadvantage market participants who are parties to legacy swaps that are required to be amended to comply with the QFC Rules, the Commission proposes to amend the CFTC Margin Rule such that a legacy swap will not be a covered swap under the CFTC Margin Rule if it is amended solely to conform to the QFC Rules. That is, the Commission proposes to add a new paragraph (d) to the end of Commission regulation 23.161, as shown in the proposed rule text in this document.

This proposed addition is intended to provide certainty to a CSE and its counterparties about the treatment of legacy swaps and any applicable netting arrangements in light of the QFC Rules. However, if, in addition to amendments required to comply with the QFC Rules, the parties enter into any other amendments, the amended legacy swap will be a covered swap in accordance with the application of the existing CFTC Margin Rule.

The amendments to the CFTC Margin Rule described above are consistent with proposed amendments to the Prudential Margin Rule that the Prudential Regulators jointly published in the Federal Register on February 21, 2018.37 Proposing amendments to the CFTC Margin Rule that are consistent with those proposed by the Prudential Regulators furthers the Commission's efforts to harmonize its margin regime with the Prudential Regulators' margin regime and is responsive to suggestions received as part of the Commission's Project KISS initiative.38

Table of Contents     Paragraph No. I. Background 2 II. Proposed Rule 4 A. Removal of Section 8.11—Information Respecting Use and Development of Public Recreational Opportunities 4 1. Background 4 2. Proposed Elimination of Form 80 5 3. Implications for Existing Licenses 9 4. Removal of Section 141.14—Form No. 80, Licensed Hydropower Development Recreation Report 13 B. Amendments of 18 CFR 8.1, and 8.2 14 1. Section 8.1—Publication of License Conditions Relating to Recreation 15 2. Section 8.2—Posting of Project Lands as to Recreation Use and Availability of Information 17 III. Regulatory Requirements 20 A. Information Collection Statement 20 B. Environmental Analysis 36 C. Regulatory Flexibility Act 37 D. Comment Procedures 42 E. Document Availability 46

1. The Federal Energy Regulatory Commission (Commission) proposes to remove section 8.11 of its regulations, eliminating the requirement for licensees to file a Licensed Hydropower Development Recreation Report, designated as FERC Form No. 80 (Form 80). Form 80 solicits information on the use and development of recreation facilities at hydropower projects licensed by the Commission under the Federal Power Act (FPA). In addition, the Commission proposes to revise sections 8.1 and 8.2 of its regulations to modernize public notice practices, clarify recreational signage requirements, and provide flexibility to assist licensees' compliance efforts.

2. Section 10(a)(1) of the FPA requires the Commission to ensure that any licensed project is best adapted to a comprehensive plan for improving and developing a waterway for a variety of beneficial public uses, including recreational use.1 Although section 10(a) of the Federal Water Power Act of June 10, 1920 2 did not refer specifically to recreation, in 1935 when the Federal Water Power Act was re-enacted as Part I of the Federal Power Act,3 the words `including recreational purposes' were added to section 10(a) to make clear that recreation considerations were to be included in comprehensive development of the nation's water resources. Pursuant to this obligation, the Commission required licensees to allow public access to project lands and waters for recreational use and began to include standard conditions in licenses for the provision of such recreational facilities. In the 1960s, the Commission developed specific policies and practices to ensure that licensees provided reasonable recreational opportunities and notice of such opportunities to the public. In 1963, the Commission began requiring recreational use plans for the full public utilization of project waters and lands for recreation,4 and in 1965 amended its regulations by adding Part 8, entitled “Recreation Opportunities and Development at Licensed Projects,” in order to require licensees to widely publicize to the general public recreational opportunities at individual projects.5 Order 313, issued on December 27, 1965, amended the Commission's general policy regulations (18 CFR part 2) by adding section 2.7 to clarify that licensees whose projects include land and water resources with outdoor recreational potential have a responsibility for the development of those resources in accordance with area needs, to the extent that such development is not inconsistent with the primary purpose of the project.6 In 1966, the Commission further amended Part 8 of its regulations to require licensees to file Form 80, a report that provides an inventory of the use and development of recreational facilities at each development contained within a licensed project.7

3. Over the years, the Commission has continued to revise its regulations to reflect the Commission's current public recreation policies and practices. Once again, in this Notice of Proposed Rulemaking the Commission proposes to modify certain recreation-related regulations in order to eliminate unnecessary reporting requirements, modernize public notice practices, clarify recreational signage requirements, and provide flexibility to assist licensees' compliance efforts. The regulations proposed for modification are discussed below.

4. Section 8.11 requires licensees to file Form 80, a report on the use and development of recreational facilities at each development contained within a licensed project, on April 1 of every sixth year, documenting data compiled during the previous calendar year.8 For each project development,9 the Form 80 requires licensees to report the number of visits (i.e., recreation days),10 the use capacity of each type of public recreation facility, and the total annual cost to develop, operate, and maintain the public recreation facilities. In order to complete the Form 80, licensees must collect data on recreation use, facilities, and capacity for a 12-month period. Licensees may request an exemption from the Form 80 requirement if they demonstrate that a project development has little or no existing or potential recreational use (i.e., less than 100 recreation days per year).11

5. In 1965, when use of the Form 80 was first adopted, most licensed projects did not have individual recreation plans or specific recreation development requirements set out in the license. However, today many licensed projects with significant recreation opportunities have project-specific license conditions that require licensees to prepare and implement a recreation plan, conduct recreation monitoring, and/or file periodic updates to an approved recreation plan.12 Such project-specific license requirements are tailored to the recreation opportunities provided by the individual project, allowing licensees and Commission staff to better evaluate and address public recreation needs over time. Consequently, the information contained in the Form 80 may be duplicative and of limited use to Commission staff when compared to the more detailed and descriptive recreation information submitted to the Commission in response to project-specific recreation requirements.

6. Licensees for projects with limited recreation opportunities are also required to file Form 80 reports every six years, unless exempted from this requirement. Although these projects may not have approved recreation plans or recreation-related monitoring requirements given the limited recreation opportunities at such projects, the periodic submission of Form 80 reports does not provide an effective means to determine whether these projects are meeting public recreation needs. Commission staff utilizes other tools to evaluate recreation development and use at the licensed projects with minimal recreation opportunities, such as periodic project inspections and investigation of non-compliance allegations (e.g., any recreation-related inquiries or complaints submitted by resource agencies, recreation users, or local residents).

7. Moreover, Commission staff reports limited use of Form 80 data and cites concerns about the data's validity and lack of specificity. Commission staff generally views the Form 80 as a secondary source, using the reported data to confirm existing recreation data or to identify additional information to be requested from the licensee. Similarly, Commission staff experience indicates that resource agencies and outside entities often view Form 80 data as unreliable or insufficient to accurately document recreation use and facility capacity. Finally, advances in technology since the advent of the Form 80 (e.g., websites, Google Earth, and the Commission's eLibrary system) allow interested parties and the general public to more effectively obtain information about a project's recreational opportunities and any recreation-related license requirements.

8. For these reasons, the Commission proposes to remove section 8.11 from its regulations, eliminating the requirement for licensees to file the Form 80. This proposed change would result in reduced burden for licensees and Commission staff alike. If eliminated, licensees would no longer be required to collect and validate Form 80 data and Commission staff resources would not be allocated to performing Form 80-related responsibilities (e.g., responding to licensee inquiries; performing database maintenance; addressing non-compliance matters related to overdue, incomplete, or inaccurate Form 80 filings; and acting on exemption requests).

9. With the removal of section 8.11, existing licensees would no longer be required to collect, validate, and submit recreational data through Form 80. Nonetheless, the Commission will expect licensees to monitor the recreational resources provided by their projects in order to fulfill any project-specific license requirements and the general obligations set forth in section 2.7 of the Commission's regulations. Among other things, section 2.7 requires licensees to develop suitable recreation facilities, provide adequate public access, and determine public recreation needs.13 Implicit in these obligations is the expectation that a licensee will ensure that recreation development is operated and maintained in a manner that is safe for public use, responsive to public recreation needs, and consistent with project purposes throughout the license term.

10. The Commission expects that licensees will continue to monitor project recreation resources in a manner appropriate for the type, size, and quantity of public recreation opportunities provided by the project. Projects with moderate to significant public recreation opportunities typically require a greater level of monitoring and oversight than projects that have little to no recreation opportunities. Generally, licensees of projects with significant recreational resources must comply with one, or several, project-specific license articles requiring the licensee to: Develop certain recreation facilities, prepare and implement a recreation management plan, submit recreation reports, or conduct recreational use monitoring. A licensee's continued compliance with such project-specific conditions would satisfy this general monitoring obligation.14

11. Licensed projects with little to no recreation, including projects that were previously exempted from the Form 80 reporting requirement pursuant to section 8.11(c),15 are not expected to implement any new or additional recreation monitoring efforts, but should continue to comply with any project-specific license conditions related to public recreation.

12. In the case where an existing license contains a condition, or a recreation plan contains a provision, that ties a future filing or other action to the Form 80 reporting schedule (i.e., April 1, 2021, and every six years thereafter), licensees would still be required to timely file any recreation-related plan, report, update, or other specific information required by an existing license condition.16 Despite the proposed elimination of the Form 80 reporting requirement, licensees would still be required to file the required recreation submittal by April 1, 2021, and every six years thereafter, unless otherwise specified in the license condition. A licensee may file an application to amend any license condition or recreation plan that ties the timing of future recreation filings to the Form 80 reporting schedule. Such amendment applications would be considered by the Commission on a case-by-case basis as a separate project-specific proceeding.

13. Added to the Commission's regulations alongside the Form 80 requirement in 1966,17 section 141.14 approved licensee use of Form 80 in the manner prescribed in section 8.11 of our regulations.18 Concurrently with the proposed removal of section 8.11, the Commission proposes to remove section 141.14 of its regulations.

14. In addition to the elimination of section 8.11, the Commission proposes to amend sections 8.1 and 8.2 of its regulations to modernize public notice practices, clarify recreational signage requirements, and provide flexibility to assist licensees' compliance efforts.

15. Section 8.1 directs licensees to publicize information about the availability of projects lands and waters for recreational purposes, and any recreation-related license conditions.19 Section 8.1 requires licensees, at a minimum, to publish notice in a local newspaper once each week for four weeks of any recreation-related license conditions that the Commission may designate in an order issuing or amending a license.20

16. In addition to publishing notice in the local newspaper, the Commission proposes to require licensees with project websites to also post notice of recreation-related license conditions on its website. This requirement would only apply to a licensee that already has an existing project website, or decides to develop a project website in the future. This proposed change will ensure that the public is informed of recreational opportunities and recreation-related license conditions regardless of whether members of the public rely on a newspaper or the internet as their main source of news and information.

17. Section 8.2(a) requires the licensee to post at each public access point a visible sign that identifies: The project name, project owner, project number, directions to project areas available for public recreation, permissible times and activities, and other regulations regarding recreation use. Section 8.2(a) also requires licensees to post visible notice that project recreation facilities are open to all members of the public without discrimination. Section 8.2(b) directs the licensee to make available for inspection at its local offices the Commission-approved recreation plan and the entire license order indexed for easy reference to the recreation-related license conditions designated for publication in accordance with section 8.1 of the Commission's regulations. As the Commission explained in Order 299, the rationale behind the types of public notice required by sections 8.1 and 8.2 is two-fold: (i) It puts prospective purchasers of land in the project vicinity on notice of the project's public access and recreation purposes; and (ii) it informs the general public of the location and terms of use of the project's recreation facilities.21

18. The proposed amendments to section 8.2 clarify project signage requirements and reflect modern public dissemination methods, such as website publication. The Commission proposes to revise section 8.2(a) to streamline the information licensees must include on recreation signage at each public access point. The proposed revisions would require signs to, at a minimum, identify: The project name and number, and a statement that the project is licensed by the Commission; the licensee name and contact information for obtaining additional project recreation information; and permissible times and activities. This proposed change reduces the information that must be included on recreation signage, providing licensees greater flexibility to design signs that effectively communicate the appropriate information needed by public to use and enjoy the recreational opportunities afforded by a particular project.

19. In addition, the Commission proposes to revise section 8.2(b) to require licensees with project websites to include on their websites copies of any approved recreation plan, recreation-related reports approved by the Commission, and the entire license instrument. As with the proposed revision to section 8.1, this requirement would only apply to a licensee that already has an existing project website, or decides to develop a project website in the future. This proposed changed would allow the public to obtain information about a project's recreation requirements by accessing the licensee's website, if applicable, or by visiting the licensee's local office in the project vicinity.

20. The Paperwork Reduction Act 22 requires each federal agency to seek and obtain the Office of Management and Budget's (OMB) approval before undertaking a collection of information (including reporting, record keeping, and public disclosure requirements) directed to ten or more persons or contained in a rule of general applicability. OMB regulations require approval of certain information collection requirements contemplated by proposed rules (including deletion, revision, or implementation of new requirements).23 Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number.

21. Public Reporting Burden: In this NOPR, the Commission proposes to delete the Form 80 and to update the recreation-related requirements of FERC-500 and FERC-505.

22. This proposed rule would eliminate an existing data collection, FERC-80 (OMB Control No. 1902-0106), as well as modify certain reporting and recordkeeping requirements included in FERC-500 (OMB Control No 1902-0058) 24 and FERC-505 (OMB Control No. 1902-0115).25

23. Under the most recent Form 80 reporting cycle,26 346 licensees prepared and filed 843 Form 80 reports.27 Every three years, the Commission is required to request from OMB an extension of any currently approved information collection. Since the Form 80 is only filed every six years, the most recent annual burden and cost figures provided to OMB were based on an estimate of 400 respondents. To determine the total number of responses per year for OMB submittal purposes, we multiplied the number of respondents (400) by the annual number of responses per respondent (0.167) to arrive at 67 responses per year. The Commission estimated the current public reporting burden to be an average of three hours per form, with an associated cost of approximately $224 per form. Because the Form 80 is filed every six years, the estimated annualized cost to complete each form is $37.44, with a total annual cost for all licenses of approximately $14,974.50. This estimate includes the time required to review instructions, research existing data sources, and complete and review the collection of information.

24. This proposed rule, if adopted, would eliminate certain information collection and recordkeeping requirements. The proposed removal of the Form 80 report would eliminate the estimated annual information collection burden (201 hours) and cost ($14,974.50) associated with FERC-80 (OMB Control No. 1902-0106).28

25. In addition, the proposed revisions to sections 8.1 and 8.2, associated with the FERC-500 and FERC-505 information collections,29 are intended to modernize public notice practices, clarify recreational signage requirements, and provide flexibility to assist licensees' compliance efforts. With regard to modernized public notice practices, the proposed revisions would require licensees that have a project website to (1) publish notice on its website of license conditions related to recreation; and (2) maintain on its website copies of any approved recreation plan, recreation-related reports, and the license instrument. If a licensee does not have a project website, the website publication requirements would not apply. Accordingly, there is a slight increase in the reporting requirements and burden for FERC-500 and FERC-505.

26. The estimated changes to the burden and cost of the information collections affected by this NOPR follow.

27. Titles: FERC Form 80 (Licensed Hydropower Development Recreation Report), FERC-500 (Application for License/Relicense for Water Projects with More than 5 Megawatt (MW) Capacity), and FERC-505 (Small Hydropower Projects and Conduit Facilities including License/Relicense, Exemption, and Qualifying Conduit Facility Determination)

28. Action: Deletion of information collection (FERC-80), and revisions to existing collections FERC-500 and FERC-505.

29. OMB Control Nos.: 1902-0106 (FERC-80), 1902-0058 (FERC-500), and 1902-0115 (FERC-505).

30. Respondents: Hydropower licensees, including municipalities, businesses, private citizens, and for-profit and not-for-profit institutions.

31. Frequency of Information: Ongoing.

32. Necessity of Information: The Commission proposes the changes in this NOPR in order to eliminate unnecessary reporting requirements, modernize public notice practices, and clarify recreational signage requirements.

33. Internal Review: The Commission has reviewed the proposed changes and has determined that such changes are necessary. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has specific, objective support for the burden estimates associated with the information collection requirements.

34. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], by email to [email protected], by phone (202) 502-8663, or by fax (202) 273-0873.

35. Comments concerning the collections of information and the associated burden estimates may also be sent to: Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission]. Due to security concerns, comments should be sent electronically to the following email address: [email protected]. Comments submitted to OMB should refer to FERC-80, FERC-500, and FERC-505 and OMB Control Nos. 1902-0106 (FERC-80), 1902-0058 (FERC-500), and 1902-0115 (FERC-505).

36. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant effect on the human environment.35 Excluded from this requirement are rules that are clarifying, corrective, or procedural, or that do not substantially change the effect of legislation or the regulations being amended.36 This proposed rule would update the Commission's recreation-related regulations by clarifying public notice and signage requirements, and eliminating unnecessary reporting requirements. Because this rule is clarifying and procedural in nature, preparation of an Environmental Assessment or Environmental Impact Statement is not required.

37. The Regulatory Flexibility Act of 1980 (RFA) 37 generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The RFA mandates consideration of regulatory alternatives that accomplish the stated objectives of a proposed rule and minimize any significant economic impact on a substantial number of small entities.38 In lieu of preparing a regulatory flexibility analysis, an agency may certify that a proposed rule will not have a significant economic impact on a substantial number of small entities.39

38. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.40 The SBA size standard for electric utilities (effective January 22, 2014) is based on the number of employees, including affiliates.41 Under SBA's current size standards, a hydroelectric power generator (NAICS code 221111) 42 is small if, including its affiliates, it employs 500 or fewer people.43

39. This proposed rule directly affects all hydropower licensees that are currently required to file the Form 80. The proposal, if adopted, would remove the Form 80 filing requirement, eliminating (for small and large entities) the cost of $224 associated with filing the Form 80 every six years.

40. In addition, the proposed revisions to sections 8.1 and 8.2 of the Commission's regulations would directly affect all hydropower licensees of projects that offer existing or potential recreational use opportunities. The proposed revisions are intended to modernize public notice practices, clarify recreational signage requirements, and provide flexibility to assist licensees' compliance efforts. We expect the clarified signage requirements to benefit licensees by providing them more flexibility to design recreation-related signage strategies that best fit the needs of their individual projects. To modernize public notice practices, the proposed revisions would require licensees that have a project website, or develop one in the future, to publish and maintain certain recreation-related information on its website. If a licensee does not have a project website, the website publication requirements would not apply. Therefore, there is a slight increase in the information collection reporting requirements and burden for FERC-500 and FERC-505.44 However, we do not anticipate the impact on affected entities, regardless of their status as a small or large entity, to be significant.

41. Accordingly, pursuant to section 605(b) of the RFA, the Commission certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.

42. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due July 23, 2018. Comments must refer to Docket No. RM18-14-000, and must include the commenter's name, the organization they represent, if applicable, and their address.

43. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

44. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426.

45. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

46. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and print the contents of this document via the internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington, DC 20426.

47. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

48. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202)502-8659. Email the Public Reference Room at [email protected].

In consideration of the foregoing, the Federal Energy Regulatory Commission proposes to amend parts 8 and 141, Chapter I, Title 18, Code of Federal Regulations, as follows:

Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps of Engineers is proposing amendments to regulations in 33 CFR part 334 for the establishment of new restricted areas and danger zones, in the waters of the James River, Skiffes Creek and Warwick River in Newport News, Virginia. In a memorandum dated April 28, 2017, the Department of the Air Force requested that the Corps modify 33 CFR 334.280 to establish permanent restricted areas and danger zones. The proposed permanent restricted areas and danger zones are necessary to protect the public from hazards associated with training and mission operations, and to fulfill the current security needs of the Department of the Air Force to protect government assets, missions, and the base population in general at the facility. The proposed modification expands the restricted areas to surround JBLE-Eustis and establishes danger zones adjacent to the JBLE-Eustis firing ranges.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This proposed rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this proposed rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

The Corps determined this proposed rule is not a significant regulatory action. This regulatory action determination is based on the proposed rules governing the restricted areas, which allow any vessel that needs to transit the restricted areas to do so if the operator of the vessel obtains permission from Commander, JBLE-Eustis, and/or other persons or agencies as he/she may designate.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Corps certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels that intend to transit the restricted areas or danger zones may be small entities, for the reasons stated in paragraph (a) above this rule would not have a significant economic impact on any vessel owner or operator. In addition, the restricted areas and danger zones are necessary to protect vessels and personnel assigned to JBLE-Eustis by implementing a waterside security program. They are also necessary to protect the public. Small entities can also utilize navigable waters outside of the restricted areas and danger zones. Small entities that need to transit the restricted areas and danger zones may do so as long as vessel operators obtain permission from the Commander, Joint Base Langley-Eustis, and/or other persons or agencies as he/she may designate. The restricted areas are necessary for security of JBLE-Eustis. The danger zones area necessary for protect the public from hazards associated with training and mission operations. Unless information is obtained to the contrary during the comment period, the Corps expects that the economic impact of the proposed restricted areas and danger zones would have practically no impact on the public, any anticipated navigational hazard or interference with existing waterway traffic. After considering the economic impacts of this restricted area and danger zone regulation on small entities, I certify that this action will not have a significant impact on a substantial number of small entities.

Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered.

This proposed rule does not impose an enforceable duty among the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either Section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.

For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:

Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps of Engineers is proposing amendments to regulations in 33 CFR part 334 for the establishment of a new restricted area in the waters of Fisherman's Cove and Little Creek at JEBLCFS in Virginia Beach, Virginia. In a memorandum dated May 1, 2017, the Department of the Navy requested that the Corps modify 33 CFR 334 to establish a permanent restricted area. The proposed amendment is necessary to better protect vessels and personnel assigned to JEBLCFS by implementing a waterside security program. The request is in response to the possible risks associated with the potential for unfettered access to the harbor and the close proximity of a civilian marina to naval assets. The proposed amendment establishes the restricted area in waters within the boundary of the existing installation and in the entry channel into the harbor.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This proposed rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this proposed rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

The Corps has made a determination this proposed rule is not a significant regulatory action. This regulatory action determination is based on the proposed rules governing the restricted areas, which allow any vessel that needs to transit the restricted areas to do so if the operator of the vessel obtains permission from Little Creek Port Control or the Commanding Officer, JEBLCFS, and/or other persons or agencies as he/she may designate.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Corps certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels that intend to transit the restricted areas may be small entities, for the reasons stated in paragraph (a) above this rule would not have a significant economic impact on any vessel owner or operator. In addition, the restricted areas are necessary to protect vessels and personnel assigned to JEBLCFS by implementing a waterside security program. Small entities can also utilize navigable waters outside of the restricted areas. Small entities that need to transit the restricted areas may do so as long as the operator of the vessel obtains permission from Little Creek Port Control or the Commanding Officer, JEBLCFS, and/or other persons or agencies as he/she may designate. The restricted areas are necessary for security of JEBLCFS. Unless information is obtained to the contrary during the comment period, the Corps expects that the economic impact of the proposed restricted areas would have practically no impact on the public, any anticipated navigational hazard or interference with existing waterway traffic. After considering the economic impacts of this restricted area regulation on small entities, I certify that this action will not have a significant impact on a substantial number of small entities.

Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered.

This proposed rule does not impose an enforceable duty among the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either Section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.

For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:

As part of the Department of the Interior's (DOI's) retrospective regulatory review, we developed a schedule for migratory game bird hunting regulations that is more efficient and will provide dates much earlier than was possible under the old process. This will facilitate planning for the States and all parties interested in migratory bird hunting. Beginning in the summer of 2015, with the development of the 2016-17 hunting seasons, we are using a new schedule for establishing our annual migratory game bird hunting regulations. We will combine the current early- and late-season regulatory actions into a single process, based on predictions derived from long-term biological information and harvest strategies, to establish migratory bird hunting seasons much earlier than the system we have used for many years. Under the new process, we will develop proposed hunting season frameworks for a given year in the fall of the prior year. We will finalize those frameworks a few months later, thereby enabling the State agencies to select and publish their season dates in early summer. This rulemaking is part of that process.

We developed the guidelines for establishing special migratory bird hunting regulations for Indian Tribes in response to tribal requests for recognition of their reserved hunting rights and, for some Tribes, recognition of their authority to regulate hunting by both tribal and nontribal hunters on their reservations. The guidelines include possibilities for:

(1) On-reservation hunting by both tribal and nontribal hunters, with hunting by nontribal hunters on some reservations to take place within Federal frameworks but on dates different from those selected by the surrounding State(s);

(2) On-reservation hunting by tribal members only, outside of the usual Federal frameworks for season dates and length, and for daily bag and possession limits; and

(3) Off-reservation hunting by tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits.

In all cases, the regulations established under the guidelines must be consistent with the March 10 to September 1 closed season mandated by the 1916 Convention between the United States and Great Britain (for Canada) for the Protection of Migratory Birds (Treaty). The guidelines apply to those Tribes having recognized reserved hunting rights on Federal Indian reservations (including off-reservation trust lands) and on ceded lands. They also apply to establishing migratory bird hunting regulations for nontribal hunters on all lands within the exterior boundaries of reservations where Tribes have full wildlife management authority over such hunting or where the Tribes and affected States otherwise have reached agreement over hunting by nontribal hunters on lands owned by non-Indians within the reservation.

Tribes usually have the authority to regulate migratory bird hunting by nonmembers on Indian-owned reservation lands, subject to Service approval. The question of jurisdiction is more complex on reservations that include lands owned by non-Indians, especially when the surrounding States have established or intend to establish regulations governing hunting by non-Indians on these lands. In such cases, we encourage the Tribes and States to reach agreement on regulations that would apply throughout the reservations. When appropriate, we will consult with a Tribe and State with the aim of facilitating an accord. We also will consult jointly with tribal and State officials in the affected States where Tribes wish to establish special hunting regulations for tribal members on ceded lands. Because of past questions regarding interpretation of what events trigger the consultation process, as well as who initiates it, we provide the following clarification.

We routinely provide copies of Federal Register publications pertaining to migratory bird management to all State Directors, Tribes, and other interested parties. It is the responsibility of the States, Tribes, and others to notify us of any concern regarding any feature(s) of any regulations. When we receive such notification, we will initiate consultation.

Our guidelines provide for the continued harvest of waterfowl and other migratory game birds by tribal members on reservations where such harvest has been a customary practice. We do not oppose this harvest, provided it does not take place during the closed season defined by the Treaty, and does not adversely affect the status of the migratory bird resource. Before developing the guidelines, we reviewed available information on the current status of migratory bird populations, reviewed the current status of migratory bird hunting on Federal Indian reservations, and evaluated the potential impact of such guidelines on migratory birds. We concluded that the impact of migratory bird harvest by tribal members hunting on their reservations is minimal.

One area of interest in Indian migratory bird hunting regulations relates to hunting seasons for nontribal hunters on dates that are within Federal frameworks, but which are different from those established by the State(s) where the reservation is located. A large influx of nontribal hunters onto a reservation at a time when the season is closed in the surrounding State(s) could result in adverse population impacts on one or more migratory bird species. The guidelines make this unlikely, and we may modify regulations or establish experimental special hunts, after evaluation of information obtained by the Tribes.

We conclude the guidelines provide appropriate opportunity to accommodate the reserved hunting rights and management authority of Indian Tribes while ensuring that the migratory bird resource receives necessary protection. The conservation of this important international resource is paramount. Further, the guidelines should not be viewed as inflexible. In this regard, we note that they have been employed successfully since 1985. We conclude they have been tested adequately, and, therefore, we made them final beginning with the 1988-89 hunting season (53 FR 31612, August 18, 1988). We should stress here, however, that use of the guidelines is not mandatory, and no action is required if a Tribe wishes to observe the hunting regulations established by the State(s) in which the reservation is located.

On August 3, 2017, we published a proposal to amend title 50 of the Code of Federal Regulations (CFR) at part 20 (82 FR 36308). The proposal provided a background and overview of the migratory bird hunting regulations process, and addressed the establishment of seasons, limits, and other regulations for hunting migratory game birds under §§ 20.101 through 20.107, 20.109, and 20.110 of subpart K. Major steps in the 2018-19 regulatory cycle relating to open public meetings and Federal Register notifications were also identified in an August 3, 2017, proposed rule.

On October 3, 2017, we published in the Federal Register (82 FR 46011) a second document providing supplemental proposals for migratory bird hunting regulations. The October 3 supplement also provided detailed information on the 2018-19 regulatory schedule and re-announced the SRC and Flyway Council meetings.

On October 17-18, 2017, we held open meetings with the Flyway Council Consultants, at which the participants reviewed information on the current status of migratory game birds and developed recommendations for the 2018-19 regulations for these species.

On February 2, 2018, we published in the Federal Register (83 FR 4964) the proposed frameworks for the 2018-19 season migratory bird hunting regulations.

Each year we publish various species status reports that provide detailed information on the status and harvest of migratory game birds, including information on the methodologies and results. These reports are available at the address indicated under FOR FURTHER INFORMATION CONTACT or from our website at https://www.fws.gov/birds/surveys-and-data/reports-and-publications/population-status.php.

We used the following reports: Adaptive Harvest Management, 2017 Hunting Season (September, 2017); American Woodcock Population Status, 2017 (August, 2017); Band-tailed Pigeon Population Status, 2017 (August, 2017); Migratory Bird Hunting Activity and Harvest During the 2015-16 and 2016-17 Hunting Seasons (August, 2017); Mourning Dove Population Status, 2017 (August, 2017); Status and Harvests of Sandhill Cranes, Mid-continent, Rocky Mountain, Lower Colorado River Valley and Eastern Populations, 2017 (August, 2017); and Waterfowl Population Status, 2017 (August, 2017).

For the 2018-19 hunting season, we received requests from 23 Tribes and Indian organizations. In this proposed rule, we respond to these 23 requests and also evaluate anticipated requests for 6 Tribes from whom we usually hear but from whom we have not yet received proposals. We actively solicit regulatory proposals from other tribal groups that are interested in working cooperatively for the benefit of waterfowl and other migratory game birds. We encourage Tribes to work with us to develop agreements for management of migratory bird resources on tribal lands.

The proposed frameworks for flyway regulations were published in the Federal Register on February 2, 2018 (83 FR 4964). As previously discussed, no action is required by Tribes wishing to observe migratory bird hunting regulations established by the State(s) where they are located. The proposed regulations for the 29 Tribes that meet the established criteria or have recently proposed seasons are shown below.

For the past several years, the Confederated Salish and Kootenai Tribes and the State of Montana have entered into cooperative agreements for the regulation of hunting on the Flathead Indian Reservation. The State and the Tribes are currently operating under a cooperative agreement signed in 1990, which addresses fishing and hunting management and regulation issues of mutual concern. This agreement enables all hunters to utilize waterfowl hunting opportunities on the reservation.

As in the past, tribal regulations for nontribal hunters would be at least as restrictive as those established for the Pacific Flyway portion of Montana. Goose, duck, and coot season dates would also be at least as restrictive as those established for the Pacific Flyway portion of Montana. Shooting hours for waterfowl hunting on the Flathead Reservation are sunrise to sunset. Steel shot or other federally approved nontoxic shots are the only legal shotgun loads on the reservation for waterfowl or other game birds.

For tribal members, the Tribe proposes outside frameworks for ducks and geese of September 1, 2018, through March 9, 2019. Daily bag and possession limits were not proposed for tribal members.

The requested season dates and bag limits are similar to past regulations. Harvest levels are not expected to change significantly. Standardized check station data from the 1993-94 and 1994-95 hunting seasons indicated no significant changes in harvest levels and that the large majority of the harvest is by nontribal hunters.

We propose to approve the Tribes' request for special migratory bird regulations for the 2018-19 hunting season.

Since 1996, the Service and the Fond du Lac Band of Lake Superior Chippewa Indians have cooperated to establish special migratory bird hunting regulations for tribal members. The Fond du Lac's proposal covers land set apart for the band under the Treaties of 1837 and 1854 in northeastern and east-central Minnesota and the Band's Reservation near Duluth.

The band's proposal for 2018-19 is essentially the same as that approved last year. The proposed 2018-19 waterfowl hunting season regulations for Fond du Lac are as follows:

Season Dates: Begin September 8 and end November 30, 2018.

Daily Bag Limit: 18 ducks, including no more than 12 mallards (only 3 of which may be hens), 9 black ducks, 9 scaup, 9 wood ducks, 9 redheads, 9 pintails, and 9 canvasbacks.

Season Dates: Begin September 1 and end November 30, 2018.

Daily Bag Limit: 12 ducks, including no more than 8 mallards (only 2 of which may be hens), 6 black ducks, 6 scaup, 6 redheads, 6 pintails, 6 wood ducks, and 6 canvasbacks.

Season Dates: Begin September 8 and end November 30, 2018.

Daily Bag Limit: 15 mergansers, including no more than 6 hooded mergansers.

Season Dates: Begin September 1 and end November 30, 2018.

Daily Bag Limit: 10 mergansers, including no more than 4 hooded mergansers.

Season Dates: Begin September 1 and end November 30, 2018.

Daily Bag Limit: 20 geese.

Season Dates: Begin September 1 and end November 30, 2018.

Daily Bag Limit: Two sandhill cranes. A crane carcass tag is required prior to hunting.

Season Dates: Begin September 8 and end November 30, 2018.

Daily Bag Limit: 20 coots and common moorhens, singly or in the aggregate.

Season Dates: Begin September 1 and end November 30, 2018.

Daily Bag Limit: 20 coots and common moorhens, singly or in the aggregate.

Season Dates: Begin September 1 and end November 30, 2018.

Daily Bag Limit: 25 sora and Virginia rails, singly or in the aggregate.

Season Dates: Begin September 1 and end November 30, 2018.

Daily Bag Limit: Eight common snipe.

Season Dates: Begin September 1 and end November 30, 2018.

Daily Bag Limit: Three woodcock.

Season Dates: Begin September 1 and end November 30, 2018.

Daily Bag Limit: 30 mourning doves.

The following general conditions apply:

1. While hunting waterfowl, a tribal member must carry on his/her person a valid Ceded Territory License.

2. Shooting hours for migratory birds are one-half hour before sunrise to one-half hour after sunset.

3. Except as otherwise noted, tribal members will be required to comply with tribal codes that will be no less restrictive than the provisions of Chapter 10 of the Model Off-Reservation Code. Except as modified by the Service rules adopted in response to this proposal, these amended regulations parallel Federal requirements in 50 CFR part 20 as to hunting methods, transportation, sale, exportation, and other conditions generally applicable to migratory bird hunting.

4. Band members in each zone will comply with State regulations providing for closed and restricted waterfowl hunting areas.

5. There are no possession limits for migratory birds. For purposes of enforcing bag limits, all migratory birds in the possession or custody of band members on ceded lands will be considered to have been taken on those lands unless tagged by a tribal or State conservation warden as having been taken on-reservation. All migratory birds that fall on reservation lands will not count as part of any off-reservation bag or possession limit.

The band anticipates harvest will be fewer than 500 ducks and geese, and fewer than 10 sandhill cranes.

We propose to approve the request for special migratory bird hunting regulations for the Fond du Lac Band of Lake Superior Chippewa Indians.

In the 1995-96 migratory bird seasons, the Grand Traverse Band of Ottawa and Chippewa Indians and the Service first cooperated to establish special regulations for waterfowl. The Grand Traverse Band is a self-governing, federally recognized Tribe located on the west arm of Grand Traverse Bay in Leelanau County, Michigan. The Grand Traverse Band is a signatory Tribe of the Treaty of 1836. We have approved special regulations for tribal members of the 1836 treaty's signatory Tribes on ceded lands in Michigan since the 1986-87 hunting season.

For the 2018-19 season, the Tribe requests that the tribal member duck season run from September 1, 2018, through January 20, 2019. A daily bag limit of 35 would include no more than 8 pintail, 4 canvasback, 5 hooded merganser, 8 black ducks, 8 wood ducks, 8 redheads, and 20 mallards (only 10 of which may be hens).

For Canada and snow geese, the Tribe proposes a September 1, 2018, through February 15, 2019, season. For white-fronted geese and brant, the Tribe proposes a September 20 through December 30, 2018, season. The daily bag limit for Canada and snow geese would be 15, and the daily bag limit for white-fronted geese and including brant would be 5 birds. We further note that, based on available data (of major goose migration routes), it is unlikely that any Canada geese from the Southern James Bay Population will be harvested by the Tribe.

For woodcock, the Tribe proposes a September 1 through November 14, 2018, season. The daily bag limit will not exceed five birds. For mourning doves, snipe, and rails, the Tribe proposes a September 1 through November 14, 2018, season. The daily bag limit would be 15 mourning dove, 10 snipe, and 10 rail.

For sandhill crane, the Tribe proposes a September 1 through November 14, 2018, season. The daily bag limit would be 2 birds and a season limit of 10 birds.

For snipe and rails, the Tribe proposes a September 1 through November 14, 2018, season. The daily bag limit would be 10 birds per species.

Shooting hours would be from one-half hour before sunrise to one-half hour after sunset. All other Federal regulations contained in 50 CFR part 20 would apply. The Tribe proposes to monitor harvest closely through game bag checks, patrols, and mail surveys. Harvest surveys from the 2013-14 hunting season indicated that approximately 30 tribal hunters harvested an estimated 100 ducks and 45 Canada geese.

We propose to approve the Grand Traverse Band of Ottawa and Chippewa Indians 2018-19 special migratory bird hunting proposal.

Since 1985, various bands of the Lake Superior Tribe of Chippewa Indians have exercised judicially recognized, off-reservation hunting rights for migratory birds in Wisconsin. The specific regulations were established by the Service in consultation with the Wisconsin Department of Natural Resources and the Great Lakes Indian Fish and Wildlife Commission (GLIFWC) (GLIFWC is an intertribal agency exercising delegated natural resource management and regulatory authority from its member Tribes in portions of Wisconsin, Michigan, and Minnesota). Beginning in 1986, a Tribal season on ceded lands in the western portion of the Michigan Upper Peninsula was developed in coordination with the Michigan Department of Natural Resources. We have approved regulations for Tribal members in both Michigan and Wisconsin since the 1986-87 hunting season. In 1987, GLIFWC requested, and we approved, regulations to permit Tribal members to hunt on ceded lands in Minnesota, as well as in Michigan and Wisconsin. The States of Michigan and Wisconsin originally concurred with the regulations, although both Wisconsin and Michigan have raised various concerns over the years. Minnesota did not concur with the original regulations, stressing that the State would not recognize Chippewa Indian hunting rights in Minnesota's treaty area until a court with jurisdiction over the State acknowledges and defines the extent of these rights. In 1999, the U.S. Supreme Court upheld the existence of the tribes' treaty reserved rights in Minnesota v. Mille Lacs Band, 199 S. Ct. 1187 (1999).

We acknowledge all of the States' concerns, but point out that the U.S. Government has recognized the Indian treaty reserved rights, and that acceptable hunting regulations have been successfully implemented in Minnesota, Michigan, and Wisconsin. Consequently, in view of the above, we have approved regulations since the 1987-88 hunting season on ceded lands in all three States. In fact, this recognition of the principle of treaty reserved rights for band members to hunt and fish was pivotal in our decision to approve a 1991-92 season for the 1836 ceded area in Michigan. Since then, in the 2007 Consent Decree, the 1836 Treaty Tribes' and Michigan Department of Natural Resources and Environment established court-approved regulations pertaining to off-reservation hunting rights for migratory birds.

For 2018, GLIFWC proposes off-reservation special migratory bird hunting regulations on behalf of the member Tribes of the Voigt Intertribal Task Force of GLIFWC (for the 1837 and 1842 Treaty areas in Wisconsin and Michigan), the Mille Lacs Band of Ojibwe and the six Wisconsin Bands (for the 1837 Treaty area in Minnesota), and the Bay Mills Indian Community (for the 1836 Treaty area in Michigan). Member Tribes of the Task Force are: the Bad River Band of the Lake Superior Tribe of Chippewa Indians, the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, the Lac du Flambeau Band of Lake Superior Chippewa Indians, the Red Cliff Band of Lake Superior Chippewa Indians, the St. Croix Chippewa Indians of Wisconsin, and the Sokaogon Chippewa Community (Mole Lake Band), all in Wisconsin; the Mille Lacs Band of Chippewa Indians and the Fond du Lac Band of Lake Superior Chippewa Indians in Minnesota; and the Lac Vieux Desert Band of Chippewa Indians and the Keweenaw Bay Indian Community in Michigan.

Last year, GLIFWC proposed, and we approved, four regulatory changes from previous years' regulations for the 2017-18 hunting season (83 FR 5037, February 5, 2018). First, in the 1837 and 1842 Treaty Areas, GLIFWC proposed allowing up to 50 Tribal hunters to use electronic calls for any open season under a limited and experimental design under a special Tribal permit. In addition to obtaining a special permit, the Tribal hunter would be required to complete and submit a hunt diary for each hunt where electronic calls were used. Second, GLIFWC proposed allowing the take of migratory birds (primarily waterfowl) with the use of hand-held nets, hand-held snares, and/or capture of birds by hand in the 1837 and 1842 Treaty Areas. This use of nets, snares, or hand-capture included the take of birds at night. GLIFWC proposed that both the use of electronic calls and the use of nets, snares, or hand-capture be considered 3-year experimental seasons. Third, GLIFWC proposed moving the opening of the current swan season to September 1 rather than November 1 in the 1837 and 1842 Treaty Areas. However, the trumpeter swan quota remained at 10 swans. Lastly, GLIFWC proposed implementing a sandhill crane hunting season in the 1836 Treaty Area. While we proposed approving all four of GLIFWC's proposals in our August 27, 2017, proposed rule (82 FR 39716), in our February 5, 2018, final rule (83 FR 5037), we inadvertently failed to mention or approve the proposals dealing with the swan season and the sandhill crane season. We propose to approve those two specific proposals again this year. Further, due to the timing of the final rule, GLIFWC was not able to actually implement any of the regulatory changes approved last hunting season. Thus, no data were collected for these regulatory changes from last year. As such, since several of these approved regulatory changes were designated as experimental for a period of 3 years, we propose to extend these experiments by 1 additional year in order to have 3 years of actual data collection. This proposed extension is similar to those we have granted to Flyways and States in conducting their experimental seasons. For more specific discussion on these regulatory changes, we refer the reader to the August 27, 2017, and February 5, 2018, rules (82 FR 39716 and 83 FR 5037).

Under GLIFWC's proposed 2018-19 regulations, GLIFWC expects total ceded territory harvest to be approximately 2,000 to 3,000 ducks, 400 to 600 geese, 20 sandhill cranes, and 20 swans, which, with the exception of ducks, is roughly similar to anticipated levels in previous years for those species for which seasons were established. GLIFWC further anticipates that tribal harvest will remain low given the small number of tribal hunters and the limited opportunity to harvest more than a small number of birds on most hunting trips.

Recent GLIFWC harvest surveys (1996-98, 2001, 2004, 2007-08, 2011, 2012, and 2015) indicate that tribal off-reservation waterfowl harvest has averaged fewer than 1,100 ducks and 250 geese annually. In the latest survey year for which we have specific results (2015), an estimated 297 hunters hunted a total of 2,190 days and harvested 2,727 ducks (1.2 ducks per day) and 639 geese. The greatest number of ducks reported harvested in a single day was 10, while the highest number of geese reported taken on a single outing was 6. Mallards, wood ducks, and blue-winged teal composed about 72 percent of the duck harvest. Two sandhill cranes were reported harvested in each of the first three Tribal sandhill crane seasons, with 3 reported harvested in 2015. No swans have been harvested. About 81 percent of the estimated hunting days took place in Wisconsin, with the remainder occurring in Michigan. As in past years, most hunting took place in or near counties with reservations. Overall, analysis of hunter survey data over 1996-2015 indicates a general downward, or flat, trend in both harvest and hunter participation

The proposed 2018-19 waterfowl hunting season regulations apply to all treaty areas (except where noted) for GLIFWC as follows:

Season Dates: Begin September 1 and end December 31, 2018.

Daily Bag Limit: 50 ducks in the 1837 and 1842 Treaty Area; 30 ducks in the 1836 Treaty Area.

Season Dates: Begin September 1 and end December 31, 2018.

Daily Bag Limit: 10 mergansers.

Season Dates: Begin September 1 and end December 31, 2018. In addition, any portion of the ceded territory that is open to State-licensed hunters for goose hunting outside of these dates will also be open concurrently for tribal members.

Daily Bag Limit: 20 geese in aggregate.

Season Dates: Begin September 1 and end December 31, 2018.

Daily Bag Limit: 20 coots and common moorhens (common gallinules), singly or in the aggregate.

Season Dates: Begin September 1 and end December 31, 2018.

Daily Bag and Possession Limits: 20, singly, or in the aggregate, 25.

Season Dates: Begin September 1 and end December 31, 2018.

Daily Bag Limit: 16 common snipe.

Season Dates: Begin September 4 and end December 31, 2018.

Daily Bag Limit: 10 woodcock.

Season Dates: Begin September 1 and end November 29, 2018.

Daily Bag Limit: 15 mourning doves.

Season Dates: Begin September 1 and end December 31, 2018.

Daily Bag Limit: 2 cranes and no seasonal bag limit in the 1837 and 1842 Treaty areas; 1 crane with a seasonal bag limit of 3 in the 1836 Treaty area.

Season Dates: Begin September 1 and end December 31, 2018.

Daily Bag Limit: 2 swans. All harvested swans must be registered by presenting the fully-feathered carcass to a tribal registration station or GLIFWC warden. If the total number of trumpeter swans harvested reaches 10, the swan season will be closed by emergency tribal rule.

A. All tribal members will be required to obtain a valid tribal waterfowl hunting permit.

B. Except as otherwise noted, tribal members will be required to comply with tribal codes that will be no less restrictive than the model ceded territory conservation codes approved by Federal courts in the Lac Courte Oreilles v. State of Wisconsin (Voigt) and Mille Lacs Band v. State of Minnesota cases. Chapter 10 in each of these model codes regulates ceded territory migratory bird hunting. Both versions of Chapter 10 parallel Federal requirements as to hunting methods, transportation, sale, exportation, and other conditions generally applicable to migratory bird hunting. They also automatically incorporate by reference the Federal migratory bird regulations adopted in response to this proposal.

C. Particular regulations of note include:

1. Nontoxic shot will be required for all waterfowl hunting by tribal members.

2. Tribal members in each zone will comply with tribal regulations providing for closed and restricted waterfowl hunting areas. These regulations generally incorporate the same restrictions contained in parallel State regulations.

3. There are no possession limits, with the exception of 2 swans (in the aggregate) and 25 rails (in the aggregate). For purposes of enforcing bag limits, all migratory birds in the possession and custody of tribal members on ceded lands will be considered to have been taken on those lands unless tagged by a tribal or State conservation warden as taken on reservation lands. All migratory birds that fall on reservation lands will not count as part of any off-reservation bag or possession limit.

4. The baiting restrictions included in the respective section 10.05(2)(h) of the model ceded territory conservation codes will be amended to include language which parallels that in place for nontribal members as published at 64 FR 29799, June 3, 1999.

5. There are no shell limit restrictions.

6. Hunting hours are from 30 minutes before sunrise to 30 minutes after sunset, except that, within the 1837 and 1842 Ceded Territories, hunters may use non-mechanical nets or snares that are operated by hand to take those birds subject to an open hunting season at any time (see #8 below for further information). Hunters shall also be permitted to capture, without the aid of other devices (i.e., by hand) and immediately kill birds subject to an open season, regardless of the time of day.

7. An experimental application of electronic calls will be implemented in the 1837 and 1842 Ceded Territories. Up to 50 tribal hunters will be allowed to use electronic calls. Individuals using these devices will be required to obtain a special permit; they will be required to complete a hunt diary for each hunt where electronic calls are used; and they will be required to submit the hunt diary to the Commission within 2 weeks of the end of the season in order to be eligible to obtain an permit for the following year. Required information will include the date, time, and location of the hunt; number of hunters; the number of each species harvested per hunting event; if other hunters were in the area, any interactions with other hunters; and other information deemed appropriate. Diary results will be summarized and documented in a Commission report, which will be submitted to the Service. Barring unforeseen results, this experimental application would be replicated for 3 years (through the 2020-21 season), after which a full evaluation would be completed.

8. Within the 1837 and 1842 Ceded Territories, tribal members will be allowed to use non-mechanical, hand-operated nets (i.e., throw/cast nets or hand-held nets typically used to land fish) and hand-operated snares, and may chase and capture migratory birds without the aid of hunting devices (i.e., by hand). At this time, non-attended nets or snares shall not be authorized under this regulation. Tribal members using nets or snares to take migratory birds, or taking birds by hand, will be required to obtain a special permit; they will be required to complete a hunt diary for each hunt where these methods are used; and they will be required to submit the hunt diary to the Commission within 2 weeks of the end of the season in order to be eligible to obtain a permit to net migratory birds for the following year. Required information will include the date, time, and location of the hunt; number of hunters; the number of each species harvested per hunting event; and other information deemed appropriate. Diary results will be summarized and documented in a Commission report, which will be submitted to the Service. Barring unforeseen results, this experimental application would be replicated for 3 years (through the 2020-21 season), after which a full evaluation would be completed.

We propose to approve the above GLIFWC regulations for the 2018-19 hunting season.

The Jicarilla Apache Tribe has had special migratory bird hunting regulations for tribal members and nonmembers since the 1986-87 hunting season. The Tribe owns all lands on the reservation and has recognized full wildlife management authority. In general, the proposed seasons would be more conservative than allowed by the Federal frameworks of last season and by States in the Pacific Flyway.

The Tribe proposes a 2018-19 waterfowl and Canada goose season beginning October 6, 2018, and a closing date of November 30, 2018. Daily bag and possession limits for waterfowl would be the same as Pacific Flyway States. The Tribe proposes a daily bag limit for Canada geese of two. Other regulations specific to the Pacific Flyway guidelines for New Mexico would be in effect.

During the Jicarilla Game and Fish Department's 2016-17 season, estimated duck harvest was 63. The species composition included mainly mallards, gadwall, American wigeon, and teal. The estimated harvest of geese was 0 birds.

The proposed regulations are essentially the same as were established last year. The Tribe anticipates the maximum 2018-19 waterfowl harvest would be around 300 ducks and 30 geese.

We propose to approve the Tribe's requested 2018-19 hunting seasons.

The Kalispel Reservation was established by Executive Order in 1914, and currently comprises approximately 4,600 acres. The Tribe owns all Reservation land and has full management authority. The Kalispel Tribe has a fully developed wildlife program with hunting and fishing codes. The Tribe enjoys excellent wildlife management relations with the State. The Tribe and the State have an operational memorandum of understanding with emphasis on fisheries but also for wildlife.

The nontribal member seasons described below pertain to a 176-acre waterfowl management unit and 800 acres of reservation land with a guide for waterfowl hunting. The Tribe is utilizing this opportunity to rehabilitate an area that needs protection because of past land use practices, as well as to provide additional waterfowl hunting in the area. Beginning in 1996, the requested regulations also included a proposal for Kalispel-member-only migratory bird hunting on Kalispel-ceded lands within Washington, Montana, and Idaho.

For the 2018-19 migratory bird hunting seasons, the Kalispel Tribe proposes tribal and nontribal member waterfowl seasons. The Tribe requests that both duck and goose seasons open at the earliest possible date and close on the latest date under Federal frameworks.

For nontribal hunters on Tribally managed lands, the Tribe requests the seasons open at the earliest possible date and remain open, for the maximum amount of open days. Specifically, the Tribe requests a season for ducks run September 15-16, 2018, September 22-23, 2018, and from October 1, 2018, to January 8, 2019. In that period, nontribal hunters would be allowed to hunt approximately 107 days. Hunters should obtain further information on specific hunt days from the Kalispel Tribe.