Mission Compatibility Evaluation Process, 65112-65118 [2011-26987]
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any C stock prior to year 6, D purchased 20
percent of the C stock in year 6, and then
acquired all of the remaining C stock in year
7, the C stock purchased in year 6 and the
C stock acquired in year 7 (even if purchased)
would not be treated as ‘‘other property’’
because C becomes a DSAG member. See
paragraph (g)(2)(i) of this section.
Example 3. Intra-SAG transaction. For
more than five years, D has owned all of the
stock of S. D and S, in the aggregate, have
owned section 368(c) stock but not section
1504(a)(2) stock of C. Therefore, D and S are
DSAG members, but C is not. In year 6, D
purchases S’s C stock. If D distributes all of
its C stock within five years after the year 6
purchase, the distribution of the C stock
purchased in year 6 would not be treated as
‘‘other property.’’ D’s purchase of the C stock
from S is disregarded for purposes of
paragraph (g)(1) of this section because that
C stock was owned by the DSAG
immediately before and immediately after the
purchase. See paragraph (g)(1) of this section.
Example 4. Affiliate exception. For more
than five years, P has owned 90 percent of
the sole outstanding class of the stock of D
and a portion of the stock of C, and X has
owned the remaining 10 percent of the D
stock. Throughout this period, D has owned
section 368(c) stock but not section
1504(a)(2) stock of C. In year 6, D purchases
P’s C stock. However, D does not own section
1504(a)(2) stock of C after the year 6
purchase. If D distributes all of its C stock to
X in exchange for X’s D stock within five
years after the year 6 purchase, the
distribution of the C stock purchased in year
6 would not be treated as ‘‘other property’’
because the C stock was purchased from a
member (P) of the affiliated group (as defined
in § 1.355–3(b)(4)(iv)) of which D is a
member, and P did not purchase that C stock
within the pre-distribution period. See
paragraph (g)(2)(ii) of this section.
*
*
*
*
*
(i) Effective/applicability date.
Paragraphs (g)(1) through (g)(5) of this
section apply to distributions occurring
after October 20, 2011. For rules
regarding distributions occurring on or
before October 20, 2011, see § 1.355–
2T(i), as contained in 26 CFR part 1,
revised as of April 1, 2011.
§ 1.355–0T
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Par. 5. Section 1.355–0T is removed.
§ 1.355–2T
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[Removed]
[Removed]
Par. 6. Section 1.355–2T is removed.
Steven T. Miller,
Deputy Commissioner for Services and
Enforcement.
Approved: October 14, 2011.
Emily S. McMahon,
Acting Assistant Secretary of the Treasury
(Tax Policy).
[FR Doc. 2011–27240 Filed 10–19–11; 8:45 am]
BILLING CODE 4830–01–P
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DEPARTMENT OF JUSTICE
28 CFR Part 104
[Docket No. CIV 151]
RIN 1105–AB39
James Zadroga 9/11 Health and
Compensation Act of 2010
Department of Justice.
Final rule; correction.
AGENCY:
ACTION:
The Department of Justice is
correcting a final rule that appeared in
the Federal Register of August 31, 2011
(76 FR 54112). That document issued
regulations implementing the
amendments made by the James
Zadroga 9/11 Health and Compensation
Act of 2010 (Zadroga Act) with respect
to the September 11th Victim
Compensation Fund of 2001.
DATES: Effective October 3, 2011.
FOR FURTHER INFORMATION CONTACT:
Kenneth L. Zwick, Director, Office of
Management Programs, Civil Division,
U.S. Department of Justice, Main
Building, Room 3140, 950 Pennsylvania
Avenue, NW., Washington, DC 20530,
telephone 855–885–1555 (TTY 855–
885–1558).
SUPPLEMENTARY INFORMATION: In FR Doc.
2011–22160 appearing on page 54112 in
the Federal Register on Wednesday,
August 31, 2011, the following
correction is made:
1. On page 54119, in the third
column, the paragraph following the
heading ‘‘Small Business Regulatory
Enforcement Fairness Act of 1996’’ is
revised to read as follows:
‘‘The Office of Management and
Budget has determined that this rule is
a major rule as defined by section 251
of the Small Business Regulatory
Enforcement Fairness Act of 1996
(Congressional Review Act), 5 U.S.C.
804. This rule will not result in a major
increase in costs or prices, or significant
adverse effects on competition,
employment, investment, productivity,
innovation, or on the ability of United
States-based companies to compete with
foreign-based companies in domestic
and export markets. However, the
compensation benefits awarded to
eligible claimants will have an annual
beneficial impact on the economy of
$100,000,000 or more in certain years
until the amounts authorized and
appropriated for the Victims
Compensation Fund are fully
distributed.
‘‘Title II of the Zadroga Act reactivates
the September 11th Victim
Compensation Fund of 2001 and
requires a Special Master, appointed by
SUMMARY:
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the Attorney General, to provide
compensation to any individual (or a
personal representative of a deceased
individual) who suffered physical harm
or was killed as a result of the terroristrelated aircraft crashes of September 11,
2001, or the debris removal efforts that
took place in the immediate aftermath of
those crashes. In view of the need to
begin processing compensation claims
as soon as possible, it is impracticable
for the Department to comply with the
requirements of section 801 of the
Congressional Review Act, 5 U.S.C. 801,
pertaining to delayed effective dates of
major rules without unduly delaying the
processing of claims. Section 808(2) of
the Congressional Review Act, 5 U.S.C.
808(2), provides: ‘‘Notwithstanding
section 801—* * * (2) any rule which
an agency for good cause finds (and
incorporates the finding and a brief
statement of reasons therefor in the rule
issued) that notice and public procedure
thereon are impracticable, unnecessary,
or contrary to the public interest, shall
take effect at such time as the Federal
agency promulgating the rule
determines.’’ Were the Department not
to invoke the exception provided in
section 808(2) of the Congressional
Review Act, eligible claimants would
have to wait substantially longer to
begin filing their claims, thereby
impairing Congress’s goal of providing
compensation in as expeditious a
manner as possible (as evidenced by the
short statutory deadline for
implementation). Such a delay in
implementing the compensation process
would be clearly contrary to the public
interest. For the foregoing reasons, the
Special Master finds pursuant to section
808(2) of the Congressional Review Act,
5 U.S.C. 808, that good cause exists to
make this final rule effective October 3,
2011.’’
Dated: October 12, 2011.
Sheila L. Birnbaum,
Special Master.
[FR Doc. 2011–27121 Filed 10–19–11; 8:45 am]
BILLING CODE 4410–12–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 211
[Docket ID: DOD–2011–OS–0054; RIN 0790–
AI69]
Mission Compatibility Evaluation
Process
Office of the Under Secretary of
Defense for Acquisition, Technology,
and Logistics, DoD.
AGENCY:
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ACTION:
Interim final rule.
The Department of Defense
(DoD) is issuing this interim final rule
to implement section 358 of the Ike
Skelton National Defense Authorization
Act for Fiscal Year 2011. That section
requires that the DoD issue procedures
addressing the impacts upon military
operations of certain types of structures
if they pose an unacceptable risk to the
national security of the United States.
The structures addressed are those for
which an application is required to be
filed with the Secretary of
Transportation. Section 358 also
requires the designation of a lead
organization to coordinate DoD review
of applications for projects filed with
the Secretary of Transportation and
received by the Department of Defense
from the Secretary of Transportation.
Section 358 also requires the
designation of certain officials by the
Secretary of Defense to perform
functions pursuant to the section and
this implementing rule. Section 358 also
requires the establishment of a
comprehensive strategy for addressing
military impacts of renewable energy
projects and other energy projects, with
the objective of ensuring that the robust
development of renewable energy
sources and the expansion of the
commercial electrical grid may move
forward in the United States, while
minimizing or mitigating any adverse
impacts on military operations and
readiness. That requirement, however,
is not required at this time and is not
part of this rule. Other aspects of section
358 not required at this time, such as
annual reports to Congress, are also not
addressed in this rule. Nor does this
rule deal with other clearance processes
not included in section 358, such as
those applied by the Bureau of Land
Management, Department of the
Interior.
SUMMARY:
This rule is effective upon
publication in the Federal Register.
Comments must be received by
December 19, 2011.
ADDRESSES: You may submit comments,
identified by docket number and or
Regulatory Information Number (RIN)
and title, by any of the following
methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Federal Docket Management
System Office, 4800 Mark Center Drive,
2nd Floor, East Tower, Suite 02G09,
Alexandria, VA 22350–3100.
Instructions: All submissions received
must include the agency name and
docket number or RIN for this Federal
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Register document. The general policy
for comments and other submissions
from members of the public is to make
these submissions available for public
viewing on the Internet at https://
www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
FOR FURTHER INFORMATION CONTACT:
David Belote, (703) 697–7301, or Bill
Van Houten, (703) 571–9068, both can
be contacted at DoDSitingClearinghouse@osd.mil.
SUPPLEMENTARY INFORMATION:
Section 358 of the Ike Skelton
National Defense Authorization Act for
Fiscal Year 2011, Public Law 111–383,
became law on January 7, 2011. In that
provision, Congress required, among
other things, that the DoD implement
new procedures relating to how the DoD
reviews and comments on applications
filed with the Secretary of
Transportation pursuant to 49 U.S.C.
44718. Section 358 also specifies who
within DoD may provide such
comments to the Secretary of
Transportation, that DoD will engage in
outreach activities with interested
parties, and that Congress must be
advised when the DoD objects to an
application filed pursuant to 49 U.S.C.
44718.
Section 211.1 of this Interim Rule
states the two primary purposes of the
rule which are to provide for DoD
commenting on applications filed
pursuant to 49 U.S.C. 44718 and
requests for reviews of projects prior to
applications being filed pursuant to 49
U.S.C. 44718.
Section 211.2 addresses the
applicability of part 211. This part
applies to all components of the DoD,
those applicants filing applications
pursuant to 49 U.S.C. 44718 when those
applications are conveyed by the
Secretary of Transportation to the
Department of Defense, those requesting
reviews of projects prior to applications
being filed under 49 U.S.C. 44718
(including State and local officials), and
those providing comments to DoD
relating to its actions in reviewing
applications. It also applies,
geographically, to the United States.
Section 211.3 provides definitions.
The definition of ‘‘adverse impact on
military operations and readiness’’
provides that a demonstrable
impairment or degradation of the ability
of the armed forces to perform their
warfighting missions constitutes an
adverse impact. The definition of
‘‘applicant’’ refers to an entity filing a
proper application with the Secretary of
Transportation pursuant to 49 U.S.C.
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44718, and whose application has been
provided by the Secretary of
Transportation to the DoD. The
definition of ‘‘armed forces’’ refers to
the definition at 10 U.S.C. 101(a)(4),
which includes the Army, Navy, Air
Force, and Marine Corps, but excludes
the Coast Guard. The definition of
‘‘congressional defense committees’’ is
taken from section 3 of the Ike Skelton
National Defense Authorization Act for
Fiscal Year 2011, which, in turn, adopts
by reference the definition of the term
in 10 U.S.C. 101(a)(16). The definition
of ‘‘military readiness’’ is taken from the
definition of the term provided in
section 358. The definition of
‘‘mitigation’’ provides a general
description of the term while leaving to
individual actions more specific
examples of what may constitute
mitigation. The definition of ‘‘proposed
project’’ is the project as submitted to
the Secretary of Transportation pursuant
to 49 U.S.C. 44718. The definition of
‘‘requester’’ refers to a developer of a
renewable energy development or other
energy project or a state or local official
seeking an informal review of a project
by the DoD prior to the project being
submitted for formal review pursuant to
49 U.S.C. 44718. The definition of
‘‘section 358’’ refers to the authorizing
provision, section 358 of the Ike Skelton
National Defense Authorization Act for
Fiscal Year 2011. The definition of
‘‘unacceptable risk to the national
security of the United States’’ includes
the two existing criteria found in 49
U.S.C. 44718, namely the construction,
alteration, establishment, or expansion,
or the proposed construction, alteration,
establishment, or expansion, of a
structure or sanitary landfill that
endangers safety in air commerce or
interferes with the efficient use and
preservation of the navigable airspace
and of airport traffic capacity at publicuse airports, but, for purposes of this
rule, only when related to the activities
of the DoD. The definition also includes
an additional criterion consisting of
actions that will significantly impair or
degrade the capability of the DoD to
conduct training, research,
development, testing, and evaluation,
and operations or to maintain military
readiness. The definition of ‘‘United
States’’ is included to provide the
geographical limitation of the part,
clarifying that the part does not apply
outside of the United States.
Section 211.4 provides the general
policy of the part, taken from section
358(a). It also limits the participation of
DoD in the Federal Aviation
Administration’s process under 49
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U.S.C. 44718 to the process provided in
this rule.
Section 211.5 specifies the officials
with authorities and responsibilities
under the part pursuant to section 358.
The Deputy Secretary of Defense is
designated as the senior officer who is
authorized to provide a determination to
the Secretary of Transportation that a
project filed pursuant to 49 U.S.C.
44718 would result in an unacceptable
risk to the national security of the
United States. The Under Secretary of
Defense for Acquisition, Technology,
and Logistics is designated as the senior
official who may make a
recommendation to the Deputy
Secretary of Defense that such a project
would result in such a risk. The Deputy
Under Secretary of Defense
(Installations & Environment) is
designated as the official who, in
coordination with the Deputy Assistant
Secretary of Defense (Readiness) and the
Principal Deputy Director, Operational
Test and Evaluation, reviews such a
project and provides a preliminary
assessment of the level of risk of adverse
impact on military operations and
readiness that would arise from the
project and the extent of mitigation that
may be needed to address such risk. The
Office of the Deputy Under Secretary of
Defense (Installations & Environment) is
designated as the lead organization, and
the DoD Siting Clearinghouse is
established and organized under the
Deputy Under Secretary.
Section 211.6 provides the procedures
for formal DoD review of a project filed
by an applicant with the Secretary of
Transportation pursuant to 49 U.S.C.
44718.
Section 211.7 provides the procedures
for informal DoD review of a project
submitted by a requester prior to
submitting a formal application
pursuant to 49 U.S.C. 44718.
Section 211.8 directs DoD
Components to forward any inquiries or
requests they may receive to the
Clearinghouse so as to avoid
unauthorized action by a Component
outside of the process established by
this rule.
Section 211.9 provides some of the
types of mitigation to be considered by
the DoD and the applicant/requester
when discussing mitigation.
Section 211.10 provides for the
notification to Congress required by
section 358 when the senior officer
makes a determination that a project
presents an unacceptable risk to the
national security of the United States.
Section 211.11 provides for a public
Web site where the public can review
the actions being considered by DoD,
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track their progress, and offer
comments.
Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
It has been determined that this rule
is not a significant regulatory action.
This rule does not:
(1) Have an annual effect to the
economy of $100 million or more or
adversely affect in a material way the
economy; a section of the economy;
productivity; competition; jobs; the
environment; public health or safety; or
State, local, or tribal governments or
communities;
(2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligation of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in Executive Order 12866.
Section 202, Public Law 104–4,
Unfunded Mandates Reform Act
It has been certified that 32 CFR part
211 does not contain a Federal mandate
that may result in the expenditure by
State, local, and tribal governments, in
aggregate, or by the private sector, of
$100 million or more in any one year.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
The Congress enacted the Regulatory
Flexibility Act (RFA) of 1980, as
amended, 5 U.S.C. 601–612, to ensure
that Government regulations do not
unnecessarily or disproportionately
burden small entities. The RFA requires
a regulatory flexibility analysis if a rule
would have a significant economic
impact, either detrimental or beneficial,
on a substantial number of small
entities. The RFA requires agencies to
analyze the economic impact of
regulations to determine the extent to
which there is anticipated to be a
significant economic impact on a
substantial number of small entities.
DoD anticipates that the Interim Rule
could potentially affect a few entities
that might otherwise have located
structures on public or private lands
that would present an unreasonable risk
to the national security of the United
States. DoD further anticipates that
some of these entities will be small
entities as defined by the Small
Business Administration; however, DoD
does not expect the potential impact to
be significant because this rule provides
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procedures to mitigate the impact of
such an unreasonable risk to the benefit
of both the proponent and DoD.
Public Law 96–511, Paperwork
Reduction Act (44 U.S.C. Chapter 35)
Section 211.7 of this interim final rule
contains information collection
requirements. DoD has submitted the
following proposal to OMB under the
provisions of the Paperwork Reduction
Act (44 U.S.C. Chapter 35). Comments
are invited on: (a) Whether the proposed
collection of information is necessary
for the proper performance of the
functions of DoD, including whether the
information will have practical utility;
(b) the accuracy of the estimate of the
burden of the proposed information
collection; (c) ways to enhance the
quality, utility, and clarity of the
information to be collected; and (d)
ways to minimize the burden of the
information collection on respondents,
including the use of automated
collection techniques or other forms of
information technology.
Title: Information for DoD Informal
Review of Renewable Energy Source
Projects.
Type of Request: New.
Number of Respondents: 350.
Responses per Respondent: 15.
Annual Responses: 5,250.
Average Burden per Response: 1 hour.
Annual Burden Hours: 5,250 hours.
Needs and Uses: This information is
necessary to allow the Department of
Defense to assess the impact on military
operations and the risk to national
security of proposed construction,
alteration, establishment, or expansion,
of a structure or sanitary landfill.
Affected Public: Business or other forprofit; State, local or tribal governments.
Frequency: On occasion.
Respondent’s Obligation: Voluntary.
OMB Desk Officer: Written comments
and recommendations on the
information collection should be sent to
Ms. Jasmeet Seehra at the Office of
Management and Budget, DoD Desk
Officer, Room 10102, New Executive
Office Building, Washington, DC 20503,
with a copy to the Executive Director,
DoD Siting Clearinghouse, Office of the
Deputy Under Secretary of Defense
(Installations and Environment), 3400
Defense Pentagon, Room 5C646,
Washington, DC 20301–3400.
Comments can be received from 30 to
60 days after the date of this notice, but
comments to OMB will be most useful
if received by OMB within 30 days after
the date of this notice.
You may also submit comments,
identified by docket number [DoD–
2011–OS–0113] and title, by the
following method:
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• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Instructions: All submissions received
must include the agency name, docket
number and title for this Federal
Register document. The general policy
for comments and other submissions
from members of the public is to make
these submissions available for public
viewing on the Internet at https://
www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
To request more information on this
information collection or to obtain a
copy of the proposal and associated
collection instruments, please write to
the Executive Director, DoD Siting
Clearinghouse, Office of the Deputy
Under Secretary of Defense
(Installations and Environment), 3400
Defense Pentagon, Room 5C646,
Washington, DC 20301–3400.
Executive Order 13132, Federalism
It has been certified that this part does
not have federalism implications, as set
forth in Executive Order 13132. This
rule does not have substantial direct
effects on:
(1) The States;
(2) The relationship between the
National Government and the States; or
(3) The distribution of power and
responsibilities among the various
levels of Government.
List of Subjects in 32 CFR Part 211
Energy; Evaluation.
Accordingly 32 CFR Part 211 is added
to read as follows:
■
PART 211—MISSION COMPATIBILITY
EVALUATION PROCESS
Subpart A—General
Sec.
211.1 Purpose.
211.2 Applicability.
211.3 Definitions.
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Subpart C—Project Evaluation Procedures
211.6 Initiating a Formal DoD Review of a
Proposed Project.
211.7 Initiating an Informal DoD Review of
a Project.
211.8 Inquiries Received by DoD
Components.
211.9 Mitigation Options.
211.10 Reporting Determinations to
Congress.
Subpart D—Communications and Outreach
211.11 Communications With the
Clearinghouse.
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Public Outreach.
Authority: Public Law 111–383, Section
358.
Subpart A—General
§ 211.1
Purpose.
This part prescribes procedures
pursuant to section 358 of the Ike
Skelton National Defense Authorization
Act for Fiscal Year 2011 to provide:
(a) A formal review of projects for
which applications are filed with the
Secretary of Transportation under 49
U.S.C. 44718, to determine if they pose
an unacceptable risk to the national
security of the United States.
(b) An informal review of a renewable
energy development or other energy
project in advance of the filing of an
application with the Secretary of
Transportation under 49 U.S.C. 44718.
§ 211.2
Applicability.
This part applies to:
(a) The Office of the Secretary of
Defense, the Military Departments, the
Chairman of the Joint Chiefs of Staff and
the Joint Staff, the Combatant
Commands, the Office of the Inspector
General of the Department of Defense,
the Defense Agencies, the DoD Field
Activities, and all other organizational
entities in the Department of Defense
(hereafter referred to collectively as the
‘‘DoD Components’’).
(b) Persons filing applications with
the Secretary of Transportation for
proposed projects pursuant to 49 U.S.C.
44718, when such applications are
received by the Department of Defense
from the Secretary of Transportation.
(c) A State or local official or a
developer of a renewable energy
development or other energy project
seeking a review of such project by DoD.
(d) Members of the general public
from whom comments are received on
notices of actions being taken by the
Department of Defense under this part.
(e) The United States.
§ 211.3
Subpart B—Policy
211.4 Policy.
211.5 Responsibilities.
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211.12
Definitions.
(a) Adverse impact on military
operations and readiness. Any adverse
impact upon military operations and
readiness, including flight operations,
research, development, testing, and
evaluation, and training that is
demonstrable and is likely to impair or
degrade the ability of the armed forces
to perform their warfighting missions.
(b) Applicant. An entity filing an
application with the Secretary of
Transportation pursuant to 49 U.S.C.
44718, and whose proper application
has been provided by the Secretary of
Transportation to the Clearinghouse.
(c) Armed forces. This term has the
same meaning as provided in 10 U.S.C.
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101(a)(4) but does not include the Coast
Guard.
(d) Clearinghouse. The DoD Siting
Clearinghouse, established under the
Deputy Under Secretary of Defense
(Installations & Environment).
(e) Congressional defense committees.
The—
(1) Committee on Armed Services and
the Committee on Appropriations of the
Senate; and
(2) Committee on Armed Services and
the Committee on Appropriations of the
House of Representatives.
(f) Days. All days are calendar days
but do not include Federal holidays.
(g) Military readiness. Includes any
training or operation that could be
related to combat readiness, including
testing and evaluation activities.
(h) Mitigation. Actions taken by either
or both the DoD or the applicant to
ensure that a project does not create an
unacceptable risk to the national
security of the United States.
(i) Proposed project. A proposed
project is the project as described in the
application submitted to the Secretary
of Transportation pursuant to 49 U.S.C.
44718 and transmitted by the Secretary
of Transportation to the Clearinghouse.
(j) Requester. A developer of a
renewable energy development or other
energy project or a state or local official
seeking an informal review by the DoD
of a project.
(k) Section 358. Section 358 of the Ike
Skelton National Defense Authorization
Act for Fiscal Year 2011, Public Law
111–383.
(l) Unacceptable risk to the national
security of the United States. The
construction, alteration, establishment,
or expansion, or the proposed
construction, alteration, establishment,
or expansion, of a structure or sanitary
landfill that:
(1) Endangers safety in air commerce,
related to the activities of the DoD.
(2) Interferes with the efficient use
and preservation of the navigable
airspace and of airport traffic capacity at
public-use airports, related to the
activities of the DoD.
(3) Will significantly impair or
degrade the capability of the DoD to
conduct training, research,
development, testing, and evaluation,
and operations or maintain military
readiness.
(m) United States. The several States,
the District of Columbia, the
Commonwealths of Puerto Rico and the
Northern Mariana Islands, American
Samoa, Guam, Midway and Wake
Islands, the U.S. Virgin Islands, any
other territory or possession of the
United States, and associated navigable
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waters, contiguous zones, and territorial
seas and the airspace of those areas.
Subpart B—Policy
§ 211.4
Policy.
(a) It is an objective of the Department
of Defense to ensure that the robust
development of renewable energy
sources and the increased resiliency of
the commercial electrical grid may
move forward in the United States,
while minimizing or mitigating any
adverse impacts on military operations
and readiness.
(b) The participation of the DoD in the
process of the Federal Aviation
Administration conducted pursuant to
49 U.S.C. 44718 shall be conducted in
accordance with this part. No other
process shall be used by a DoD
Component.
(c) Nothing in this part shall be
construed as affecting the authority of
the Secretary of Transportation under 49
U.S.C. 44718.
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§ 211.5
Responsibilities.
(a) Pursuant to subsection (e)(4) of
section 358, the Deputy Secretary of
Defense is designated as the senior
officer. Only the senior officer may
convey to the Secretary of
Transportation a determination that a
project filed with the Secretary of
Transportation pursuant to 49 U.S.C.
44718 would result in an unacceptable
risk to the national security of the
United States.
(b) Pursuant to subsection (b)(1) of
section 358, the Under Secretary of
Defense for Acquisition, Technology,
and Logistics is designated as the senior
official. Only the senior official may
provide to the senior officer a
recommendation that the senior officer
determine a project filed with the
Secretary of Transportation pursuant to
49 U.S.C. 44718 would result in an
unacceptable risk to the national
security of the United States.
(c) Pursuant to subsection (e)(1) of
section 358, the Deputy Under Secretary
of Defense (Installations &
Environment), in coordination with the
Deputy Assistant Secretary of Defense
(Readiness) and the Principal Deputy
Director, Operational Test and
Evaluation, shall review a proper
application for a project filed pursuant
to 49 U.S.C. 44718 and received from
the Secretary of Transportation and
provide a preliminary assessment of the
level of risk of adverse impact on
military operations and readiness that
would arise from the project and the
extent of mitigation that may be needed
to address such risk.
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14:45 Oct 19, 2011
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(d) Pursuant to subsection (b)(1) of
section 358, the Office of the Deputy
Under Secretary of Defense
(Installations & Environment) is
designated as the lead organization.
Under the authority, direction, and
control of the Under Secretary of
Defense for Acquisition, Technology,
and Logistics, there is, within the Office
of the Deputy Under Secretary, a DoD
Siting Clearinghouse. The
Clearinghouse:
(1) Shall have a governing board
organized in accordance with DoD
Instruction 5105.18, DoD
Intergovernmental and
Intragovernmental Committee
Management Program.
(2) Has an executive director who is
a Federal Government employee,
appointed by the Deputy Under
Secretary of Defense (Installations &
Environment).
(3) Performs such duties as assigned
in this part and as the Deputy Under
Secretary directs.
Subpart C—Project Evaluation
Procedures
§ 211.6 Initiating a Formal DoD Review of
a Proposed Project.
(a) A formal review of a proposed
project begins with the receipt from the
Secretary of Transportation by the
Clearinghouse of a proper application
filed with the Secretary of
Transportation pursuant to 49 U.S.C.
44718.
(1) The Clearinghouse will convey the
application as received to those DoD
Components it believes may have an
interest in reviewing the application.
(2) The DoD Components that receive
the application shall provide their
comments and recommendations on the
application to the Clearinghouse no
later than 20 days after they receive the
application.
(3) Not later than 30 days after
receiving the application from the
Secretary of Transportation, the
Clearinghouse shall evaluate all
comments and recommendations
received and take one of two actions:
(i) Determine that the proposed
project will not have an adverse impact
on military operations and readiness, in
which case it shall notify the Secretary
of Transportation of such determination.
(ii) Determine that the proposed
project may have an adverse impact on
military operations and readiness. When
the Clearinghouse makes such a
determination it shall immediately—
(A) Notify the applicant of the
determination of the Clearinghouse and
offer to discuss mitigation with the
applicant to reduce the adverse impact;
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(B) Designate one or more DoD
Components to engage in discussions
with the applicant to attempt to mitigate
the adverse impact;
(C) Notify the Secretary of
Transportation that the Department of
Defense has determined that the
proposed project may have an adverse
impact on military operations and
readiness, and, if the cause of the
adverse impact is due to the proposed
project exceeding an obstruction
standard set forth in subpart C of part
77 of title 14 of the Code of Federal
Regulations, identify the specific
standard and how it would be exceeded;
and
(D) Notify the Secretary of
Transportation and the Secretary of
Homeland Security that the
Clearinghouse has offered to engage in
mitigation discussions with the
applicant.
(4) The applicant must provide to the
Clearinghouse its agreement to discuss
the possibility of mitigation within five
days of receipt of the notification from
the Clearinghouse.
(b) If the applicant agrees to enter into
discussions with the DoD to seek to
mitigate an adverse impact, the
designated DoD Components shall
engage in discussions with the applicant
to attempt to reach agreement on
measures that would mitigate the
adverse impact of the proposed project
on military operations and readiness.
The Clearinghouse shall invite the
Administrator of the Federal Aviation
Administration and the Secretary of
Homeland Security to participate in
such discussions.
(1) Such discussions shall not extend
more than 90 days beyond the initial
notification to the applicant, unless both
the designated DoD Components and
the applicant agree, in writing, to an
extension of a specific period of time.
(i) If agreement between the applicant
and the designated DoD Components
has not been reached on mitigation
measures by that time and no extension
has been mutually agreed to, the
designated DoD Components shall
notify the Clearinghouse of the results of
the discussions and the analysis and
recommendations of the Components
with regard to the proposed project as
it is proposed after discussions.
(ii) If agreement between the
applicant and the designated DoD
Components has been reached on
mitigation measures that remove the
adverse impact of the proposed project
on military operations and readiness,
the DoD Components shall notify the
Clearinghouse of the agreement and the
applicant shall notify the Secretary of
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Transportation of such agreement and
amend its application accordingly.
(2) If the applicant and the designated
DoD Components are unable to reach
agreement on mitigation, the
Clearinghouse shall review the analysis
and recommendations of the DoD
Components and determine if the
proposed project as it may have been
modified by the applicant after
discussions would result in an
unacceptable risk to the national
security of the United States.
(i) If the Clearinghouse determines
that the proposed project as it may have
been modified by the applicant after
discussions would result in an
unacceptable risk to the national
security of the United States, it shall
make a recommendation to the senior
official to that effect. If the
Clearinghouse determines, contrary to
the recommendations of the DoD
Components, that the proposed project
as it may have been modified by the
applicant after discussions would not
result in an unacceptable risk to the
national security of the United States, it
shall make a recommendation to the
senior official to that effect.
(ii) If the senior official concurs with
the recommendation of the
Clearinghouse, the senior official shall
make a recommendation to the senior
officer that is consistent with the
recommendation of the Clearinghouse.
If the senior official does not agree with
the recommendation of the
Clearinghouse, the senior official may
make a recommendation to the senior
officer to that effect.
(iii) The senior officer shall consider
the recommendation of the senior
official, and, after giving full
consideration to mitigation actions
available to the DoD and those agreed to
by the applicant, determine whether the
proposed project as it may have been
modified by the applicant would result
in an unacceptable risk to the national
security of the United States. If the
senior officer makes such a
determination, the senior officer shall
convey that determination to the
Secretary of Transportation, identifying
which of the three criteria in section
211.3(l) creates the unacceptable risk to
the national security of the United
States.
(iv) Any mitigation discussions
engaged in by the Department of
Defense pursuant to this part shall not
be binding upon any other Federal
agency, nor waive required compliance
with any other law or regulation.
(c)(1) If the applicant does not agree
to enter into discussions with the DoD
to seek to mitigate an adverse impact,
the Clearinghouse shall review the
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14:45 Oct 19, 2011
Jkt 226001
analysis and recommendations of the
designated DoD Components and
determine if the proposed project would
result in an unacceptable risk to the
national security of the United States. If
the Clearinghouse determines that the
proposed project would result in an
unacceptable risk to the national
security of the United States, it shall
make a recommendation to the senior
official to that effect. If the
Clearinghouse determines, contrary to
the recommendations of the DoD
Components, that the proposed project
would not result in an unacceptable risk
to the national security of the United
States, it shall make a recommendation
to the senior official to that effect.
(2) If the senior official concurs with
the recommendation of the
Clearinghouse, the senior official shall
make a recommendation to the senior
officer that is consistent with the
recommendation of the Clearinghouse.
If the senior official does not agree with
the recommendation of the
Clearinghouse, the senior official may
make a recommendation to the senior
officer to that effect.
(3) The senior officer shall consider
the recommendation of the senior
official, and, after giving full
consideration to mitigation actions
available to the DoD and those agreed to
by the applicant, determine whether the
proposed project would result in an
unacceptable risk to the national
security of the United States. If the
senior officer makes such a
determination, the senior officer shall
convey that determination to the
Secretary of Transportation, identifying
which of the three criteria in section
211.3(l) creates the unacceptable risk to
the national security of the United
States.
(d) The Clearinghouse may, on behalf
of itself, the senior official, or the senior
officer, seek an extension of time from
the Secretary of Transportation for
consideration of the application.
§ 211.7 Initiating an Informal DoD Review
of a Proposed Project.
(a) An informal review of a project
begins with the receipt from a requester
by the Clearinghouse of a request for an
informal review. In seeking an informal
review, the requester shall provide the
following information to the
Clearinghouse:
(1) The geographic location of the
project including its latitude and
longitude; and
(2) The nature of the project.
(3) The requester is encouraged to
provide as much additional information
as is available. The more information
provided by the requester, the greater
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65117
will be the accuracy and reliability of
the resulting DoD review.
(b) The Clearinghouse shall, within
five days of receiving the information
provided by the requestor, convey that
information to those DoD Components it
believes may have an interest in
reviewing the request.
(1) The DoD Components that receive
the request from the Clearinghouse shall
provide their comments and
recommendations on the request to the
Clearinghouse no later than 30 days
after they receive the request.
(2) Not later than 50 days after
receiving the request from the requester,
the Clearinghouse shall evaluate all
comments and recommendations
received and take one of two actions:
(i) Determine that the project will not
have an adverse impact on military
operations and readiness, in which case
it shall notify the requester of such
determination. In doing so, the
Clearinghouse shall also advise the
requester that the informal review by
the DoD does not constitute an action
under 49 U.S.C. 44718 and that neither
the DoD nor the Secretary of
Transportation are bound by the
determination made under the informal
review.
(ii) Determine that the project will
have an adverse impact on military
operations and readiness.
(A) When the requester is the project
proponent and the Clearinghouse makes
such a determination, the Clearinghouse
shall immediately—
(1) Notify the requester of the
determination and the reasons for the
conclusion of the Clearinghouse and
advise the requester that the DoD would
like to discuss the possibility of
mitigation to reduce any adverse
impact; and
(2) Designate one or more DoD
Components to engage in discussions
with the requester to attempt to mitigate
the adverse impact.
(B) When the requester is a state or
local official, notify the requester of the
determination of the Clearinghouse and
the reasons for that conclusion.
(c) If the requester is the project
proponent and agrees to enter into
discussions with the DoD to seek to
mitigate an adverse impact, the
designated DoD Components shall
engage in discussions with the requester
in an attempt to reach agreement on
measures that would mitigate the
adverse impact of the project on military
operations and readiness.
§ 211.8 Inquiries Received by DoD
Components.
(a) An inquiry received by a DoD
Component other than the
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Clearinghouse relating to an application
filed with the Secretary of
Transportation pursuant to 49 U.S.C.
44718 shall be forwarded to the
Clearinghouse by the DoD Component
except when that DoD Component has
been designated by the Clearinghouse to
engage in discussions with the entity
making the inquiry.
(b) A request for informal DoD review
or any other inquiry related to matters
covered by this part and received by a
DoD Component other than the
Clearinghouse shall be forwarded to the
Clearinghouse by that Component
except when that DoD Component has
been designated by the Clearinghouse to
engage in discussions with the entity
making the request.
pmangrum on DSK29S0YB1PROD with RULES
§ 211.9
Mitigation Options.
(a) In discussing mitigation to avoid
an unacceptable risk to the national
security of the United States, the DoD
Components designated to discuss
mitigation with an applicant or
requester shall, as appropriate and as
time allows, analyze the following types
of DoD mitigation to determine if they
identify feasible and affordable actions
that may be taken to mitigate adverse
impacts of projects on military
operations and readiness:
(1) Modifications to military
operations.
(2) Modifications to radars or other
items of military equipment.
(3) Modifications to military test and
evaluation activities, military training
routes, or military training procedures.
(4) Providing upgrades or
modifications to existing systems or
procedures.
(5) The acquisition of new systems by
the DoD and other departments and
agencies of the Federal Government.
(b) In discussing mitigation to avoid
an unacceptable risk to the national
security of the United States, the
applicant or requester, as the case may
be, should consider the following
possible actions:
(1) Modification of the proposed
structure, operating characteristics, or
the equipment in the proposed project.
(2) Changing the location of the
proposed project.
(3) Providing a voluntary contribution
of funds to offset the cost of measures
undertaken by the Secretary of Defense
to mitigate adverse impacts of the
project on military operations and
readiness.
officer shall submit to the congressional
defense committees a report on such
determination and the basis for such
determination.
(b) Such a report shall include—
(1) An explanation of the operational
impact that led to the determination.
(2) A discussion of the mitigation
options considered.
(3) An explanation of why the
mitigation options were not feasible or
did not resolve the conflict.
Subpart D—Communications and
Outreach
§ 211.11 Communications With the
Clearinghouse.
All communications to the
Clearinghouse by applicants, requesters,
or members of the public should be
addressed to:
Executive Director, DoD Siting
Clearinghouse, Office of the Deputy
Under Secretary of Defense
(Installations and Environment), Room
5C646, 3400 Defense Pentagon,
Washington, DC 20301–3400 or to such
internet address as the Clearinghouse
may provide.
§ 211.12
Public Outreach.
(a) The DoD shall establish a Web site
accessible to the public that—
(1) Lists the applications and requests
for informal review the DoD is currently
considering.
(2) Identifies the stage of the action,
e.g., preliminary review, referred for
mitigation discussions, determined to be
an unacceptable risk.
(3) Indicates how the public may
provide comments.
(b) The Clearinghouse shall publish a
handbook to provide applicants,
requesters, and members of the public
with necessary information to assist
them in participating in the Mission
Compatibility Evaluation Process.
Dated: October 12, 2011.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. 2011–26987 Filed 10–19–11; 8:45 am]
BILLING CODE 5001–06–P
(a) Not later than 30 days after making
a determination of unacceptable risk
pursuant to section 211.6, the senior
14:45 Oct 19, 2011
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Coast Guard
33 CFR Part 117
[Docket No. USCG–2011–0816]
RIN 1625–AA09
Drawbridge Operation Regulation;
Bear Creek, Sparrows Point, MD
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Coast Guard, DHS.
Final rule.
AGENCY:
ACTION:
§ 211.10 Reporting Determinations to
Congress.
VerDate Mar<15>2010
DEPARTMENT OF HOMELAND
SECURITY
The Coast Guard is canceling
a portion of an existing drawbridge
operation regulation. The Baltimore
County Revenue Authority (Dundalk
Avenue) highway toll drawbridge across
Bear Creek, mile 1.5, Sparrows Point,
MD was replaced with a fixed bridge in
1998. Therefore, that portion of the
operating regulation, as it pertains to the
Dundalk Avenue highway toll
drawbridge, is no longer applicable or
necessary.
SUMMARY:
DATES:
This rule is effective October 20,
2011.
Documents indicated in this
preamble as being available in the
docket, are part of docket USCG–2011–
0816 and are available by going to
https://www.regulations.gov, inserting
USCG–2011–0816 in the ‘‘Keyword’’
box, and then clicking ‘‘Search.’’ This
material is also available for inspection
or copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
e-mail Lindsey Middleton, Coast Guard;
telephone 757–398–6629, e-mail
Lindsey.R.Middleton@uscg.mil. If you
have questions on viewing the docket,
call Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Regulatory Information
The Coast Guard is issuing this final
rule without prior notice and
opportunity to comment pursuant to
authority under section 4(a) of the
Administrative Procedure Act (APA)
(5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
E:\FR\FM\20OCR1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Rules and Regulations]
[Pages 65112-65118]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26987]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 211
[Docket ID: DOD-2011-OS-0054; RIN 0790-AI69]
Mission Compatibility Evaluation Process
AGENCY: Office of the Under Secretary of Defense for Acquisition,
Technology, and Logistics, DoD.
[[Page 65113]]
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Defense (DoD) is issuing this interim final
rule to implement section 358 of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011. That section requires that the
DoD issue procedures addressing the impacts upon military operations of
certain types of structures if they pose an unacceptable risk to the
national security of the United States. The structures addressed are
those for which an application is required to be filed with the
Secretary of Transportation. Section 358 also requires the designation
of a lead organization to coordinate DoD review of applications for
projects filed with the Secretary of Transportation and received by the
Department of Defense from the Secretary of Transportation. Section 358
also requires the designation of certain officials by the Secretary of
Defense to perform functions pursuant to the section and this
implementing rule. Section 358 also requires the establishment of a
comprehensive strategy for addressing military impacts of renewable
energy projects and other energy projects, with the objective of
ensuring that the robust development of renewable energy sources and
the expansion of the commercial electrical grid may move forward in the
United States, while minimizing or mitigating any adverse impacts on
military operations and readiness. That requirement, however, is not
required at this time and is not part of this rule. Other aspects of
section 358 not required at this time, such as annual reports to
Congress, are also not addressed in this rule. Nor does this rule deal
with other clearance processes not included in section 358, such as
those applied by the Bureau of Land Management, Department of the
Interior.
DATES: This rule is effective upon publication in the Federal Register.
Comments must be received by December 19, 2011.
ADDRESSES: You may submit comments, identified by docket number and or
Regulatory Information Number (RIN) and title, by any of the following
methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 4800 Mark
Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-
3100.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
Internet at https://www.regulations.gov as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: David Belote, (703) 697-7301, or Bill
Van Houten, (703) 571-9068, both can be contacted at DoDSitingClearing-
house@osd.mil.
SUPPLEMENTARY INFORMATION:
Section 358 of the Ike Skelton National Defense Authorization Act
for Fiscal Year 2011, Public Law 111-383, became law on January 7,
2011. In that provision, Congress required, among other things, that
the DoD implement new procedures relating to how the DoD reviews and
comments on applications filed with the Secretary of Transportation
pursuant to 49 U.S.C. 44718. Section 358 also specifies who within DoD
may provide such comments to the Secretary of Transportation, that DoD
will engage in outreach activities with interested parties, and that
Congress must be advised when the DoD objects to an application filed
pursuant to 49 U.S.C. 44718.
Section 211.1 of this Interim Rule states the two primary purposes
of the rule which are to provide for DoD commenting on applications
filed pursuant to 49 U.S.C. 44718 and requests for reviews of projects
prior to applications being filed pursuant to 49 U.S.C. 44718.
Section 211.2 addresses the applicability of part 211. This part
applies to all components of the DoD, those applicants filing
applications pursuant to 49 U.S.C. 44718 when those applications are
conveyed by the Secretary of Transportation to the Department of
Defense, those requesting reviews of projects prior to applications
being filed under 49 U.S.C. 44718 (including State and local
officials), and those providing comments to DoD relating to its actions
in reviewing applications. It also applies, geographically, to the
United States.
Section 211.3 provides definitions. The definition of ``adverse
impact on military operations and readiness'' provides that a
demonstrable impairment or degradation of the ability of the armed
forces to perform their warfighting missions constitutes an adverse
impact. The definition of ``applicant'' refers to an entity filing a
proper application with the Secretary of Transportation pursuant to 49
U.S.C. 44718, and whose application has been provided by the Secretary
of Transportation to the DoD. The definition of ``armed forces'' refers
to the definition at 10 U.S.C. 101(a)(4), which includes the Army,
Navy, Air Force, and Marine Corps, but excludes the Coast Guard. The
definition of ``congressional defense committees'' is taken from
section 3 of the Ike Skelton National Defense Authorization Act for
Fiscal Year 2011, which, in turn, adopts by reference the definition of
the term in 10 U.S.C. 101(a)(16). The definition of ``military
readiness'' is taken from the definition of the term provided in
section 358. The definition of ``mitigation'' provides a general
description of the term while leaving to individual actions more
specific examples of what may constitute mitigation. The definition of
``proposed project'' is the project as submitted to the Secretary of
Transportation pursuant to 49 U.S.C. 44718. The definition of
``requester'' refers to a developer of a renewable energy development
or other energy project or a state or local official seeking an
informal review of a project by the DoD prior to the project being
submitted for formal review pursuant to 49 U.S.C. 44718. The definition
of ``section 358'' refers to the authorizing provision, section 358 of
the Ike Skelton National Defense Authorization Act for Fiscal Year
2011. The definition of ``unacceptable risk to the national security of
the United States'' includes the two existing criteria found in 49
U.S.C. 44718, namely the construction, alteration, establishment, or
expansion, or the proposed construction, alteration, establishment, or
expansion, of a structure or sanitary landfill that endangers safety in
air commerce or interferes with the efficient use and preservation of
the navigable airspace and of airport traffic capacity at public-use
airports, but, for purposes of this rule, only when related to the
activities of the DoD. The definition also includes an additional
criterion consisting of actions that will significantly impair or
degrade the capability of the DoD to conduct training, research,
development, testing, and evaluation, and operations or to maintain
military readiness. The definition of ``United States'' is included to
provide the geographical limitation of the part, clarifying that the
part does not apply outside of the United States.
Section 211.4 provides the general policy of the part, taken from
section 358(a). It also limits the participation of DoD in the Federal
Aviation Administration's process under 49
[[Page 65114]]
U.S.C. 44718 to the process provided in this rule.
Section 211.5 specifies the officials with authorities and
responsibilities under the part pursuant to section 358. The Deputy
Secretary of Defense is designated as the senior officer who is
authorized to provide a determination to the Secretary of
Transportation that a project filed pursuant to 49 U.S.C. 44718 would
result in an unacceptable risk to the national security of the United
States. The Under Secretary of Defense for Acquisition, Technology, and
Logistics is designated as the senior official who may make a
recommendation to the Deputy Secretary of Defense that such a project
would result in such a risk. The Deputy Under Secretary of Defense
(Installations & Environment) is designated as the official who, in
coordination with the Deputy Assistant Secretary of Defense (Readiness)
and the Principal Deputy Director, Operational Test and Evaluation,
reviews such a project and provides a preliminary assessment of the
level of risk of adverse impact on military operations and readiness
that would arise from the project and the extent of mitigation that may
be needed to address such risk. The Office of the Deputy Under
Secretary of Defense (Installations & Environment) is designated as the
lead organization, and the DoD Siting Clearinghouse is established and
organized under the Deputy Under Secretary.
Section 211.6 provides the procedures for formal DoD review of a
project filed by an applicant with the Secretary of Transportation
pursuant to 49 U.S.C. 44718.
Section 211.7 provides the procedures for informal DoD review of a
project submitted by a requester prior to submitting a formal
application pursuant to 49 U.S.C. 44718.
Section 211.8 directs DoD Components to forward any inquiries or
requests they may receive to the Clearinghouse so as to avoid
unauthorized action by a Component outside of the process established
by this rule.
Section 211.9 provides some of the types of mitigation to be
considered by the DoD and the applicant/requester when discussing
mitigation.
Section 211.10 provides for the notification to Congress required
by section 358 when the senior officer makes a determination that a
project presents an unacceptable risk to the national security of the
United States.
Section 211.11 provides for a public Web site where the public can
review the actions being considered by DoD, track their progress, and
offer comments.
Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563, Improving Regulation and Regulatory Review
It has been determined that this rule is not a significant
regulatory action. This rule does not:
(1) Have an annual effect to the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligation of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
Section 202, Public Law 104-4, Unfunded Mandates Reform Act
It has been certified that 32 CFR part 211 does not contain a
Federal mandate that may result in the expenditure by State, local, and
tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Congress enacted the Regulatory Flexibility Act (RFA) of 1980,
as amended, 5 U.S.C. 601-612, to ensure that Government regulations do
not unnecessarily or disproportionately burden small entities. The RFA
requires a regulatory flexibility analysis if a rule would have a
significant economic impact, either detrimental or beneficial, on a
substantial number of small entities. The RFA requires agencies to
analyze the economic impact of regulations to determine the extent to
which there is anticipated to be a significant economic impact on a
substantial number of small entities. DoD anticipates that the Interim
Rule could potentially affect a few entities that might otherwise have
located structures on public or private lands that would present an
unreasonable risk to the national security of the United States. DoD
further anticipates that some of these entities will be small entities
as defined by the Small Business Administration; however, DoD does not
expect the potential impact to be significant because this rule
provides procedures to mitigate the impact of such an unreasonable risk
to the benefit of both the proponent and DoD.
Public Law 96-511, Paperwork Reduction Act (44 U.S.C. Chapter 35)
Section 211.7 of this interim final rule contains information
collection requirements. DoD has submitted the following proposal to
OMB under the provisions of the Paperwork Reduction Act (44 U.S.C.
Chapter 35). Comments are invited on: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of DoD, including whether the information will have
practical utility; (b) the accuracy of the estimate of the burden of
the proposed information collection; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of the information collection on respondents,
including the use of automated collection techniques or other forms of
information technology.
Title: Information for DoD Informal Review of Renewable Energy
Source Projects.
Type of Request: New.
Number of Respondents: 350.
Responses per Respondent: 15.
Annual Responses: 5,250.
Average Burden per Response: 1 hour.
Annual Burden Hours: 5,250 hours.
Needs and Uses: This information is necessary to allow the
Department of Defense to assess the impact on military operations and
the risk to national security of proposed construction, alteration,
establishment, or expansion, of a structure or sanitary landfill.
Affected Public: Business or other for-profit; State, local or
tribal governments.
Frequency: On occasion.
Respondent's Obligation: Voluntary.
OMB Desk Officer: Written comments and recommendations on the
information collection should be sent to Ms. Jasmeet Seehra at the
Office of Management and Budget, DoD Desk Officer, Room 10102, New
Executive Office Building, Washington, DC 20503, with a copy to the
Executive Director, DoD Siting Clearinghouse, Office of the Deputy
Under Secretary of Defense (Installations and Environment), 3400
Defense Pentagon, Room 5C646, Washington, DC 20301-3400.
Comments can be received from 30 to 60 days after the date of this
notice, but comments to OMB will be most useful if received by OMB
within 30 days after the date of this notice.
You may also submit comments, identified by docket number [DoD-
2011-OS-0113] and title, by the following method:
[[Page 65115]]
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency
name, docket number and title for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
Internet at https://www.regulations.gov as they are received without
change, including any personal identifiers or contact information.
To request more information on this information collection or to
obtain a copy of the proposal and associated collection instruments,
please write to the Executive Director, DoD Siting Clearinghouse,
Office of the Deputy Under Secretary of Defense (Installations and
Environment), 3400 Defense Pentagon, Room 5C646, Washington, DC 20301-
3400.
Executive Order 13132, Federalism
It has been certified that this part does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 211
Energy; Evaluation.
0
Accordingly 32 CFR Part 211 is added to read as follows:
PART 211--MISSION COMPATIBILITY EVALUATION PROCESS
Subpart A--General
Sec.
211.1 Purpose.
211.2 Applicability.
211.3 Definitions.
Subpart B--Policy
211.4 Policy.
211.5 Responsibilities.
Subpart C--Project Evaluation Procedures
211.6 Initiating a Formal DoD Review of a Proposed Project.
211.7 Initiating an Informal DoD Review of a Project.
211.8 Inquiries Received by DoD Components.
211.9 Mitigation Options.
211.10 Reporting Determinations to Congress.
Subpart D--Communications and Outreach
211.11 Communications With the Clearinghouse.
211.12 Public Outreach.
Authority: Public Law 111-383, Section 358.
Subpart A--General
Sec. 211.1 Purpose.
This part prescribes procedures pursuant to section 358 of the Ike
Skelton National Defense Authorization Act for Fiscal Year 2011 to
provide:
(a) A formal review of projects for which applications are filed
with the Secretary of Transportation under 49 U.S.C. 44718, to
determine if they pose an unacceptable risk to the national security of
the United States.
(b) An informal review of a renewable energy development or other
energy project in advance of the filing of an application with the
Secretary of Transportation under 49 U.S.C. 44718.
Sec. 211.2 Applicability.
This part applies to:
(a) The Office of the Secretary of Defense, the Military
Departments, the Chairman of the Joint Chiefs of Staff and the Joint
Staff, the Combatant Commands, the Office of the Inspector General of
the Department of Defense, the Defense Agencies, the DoD Field
Activities, and all other organizational entities in the Department of
Defense (hereafter referred to collectively as the ``DoD Components'').
(b) Persons filing applications with the Secretary of
Transportation for proposed projects pursuant to 49 U.S.C. 44718, when
such applications are received by the Department of Defense from the
Secretary of Transportation.
(c) A State or local official or a developer of a renewable energy
development or other energy project seeking a review of such project by
DoD.
(d) Members of the general public from whom comments are received
on notices of actions being taken by the Department of Defense under
this part.
(e) The United States.
Sec. 211.3 Definitions.
(a) Adverse impact on military operations and readiness. Any
adverse impact upon military operations and readiness, including flight
operations, research, development, testing, and evaluation, and
training that is demonstrable and is likely to impair or degrade the
ability of the armed forces to perform their warfighting missions.
(b) Applicant. An entity filing an application with the Secretary
of Transportation pursuant to 49 U.S.C. 44718, and whose proper
application has been provided by the Secretary of Transportation to the
Clearinghouse.
(c) Armed forces. This term has the same meaning as provided in 10
U.S.C. 101(a)(4) but does not include the Coast Guard.
(d) Clearinghouse. The DoD Siting Clearinghouse, established under
the Deputy Under Secretary of Defense (Installations & Environment).
(e) Congressional defense committees. The--
(1) Committee on Armed Services and the Committee on Appropriations
of the Senate; and
(2) Committee on Armed Services and the Committee on Appropriations
of the House of Representatives.
(f) Days. All days are calendar days but do not include Federal
holidays.
(g) Military readiness. Includes any training or operation that
could be related to combat readiness, including testing and evaluation
activities.
(h) Mitigation. Actions taken by either or both the DoD or the
applicant to ensure that a project does not create an unacceptable risk
to the national security of the United States.
(i) Proposed project. A proposed project is the project as
described in the application submitted to the Secretary of
Transportation pursuant to 49 U.S.C. 44718 and transmitted by the
Secretary of Transportation to the Clearinghouse.
(j) Requester. A developer of a renewable energy development or
other energy project or a state or local official seeking an informal
review by the DoD of a project.
(k) Section 358. Section 358 of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011, Public Law 111-383.
(l) Unacceptable risk to the national security of the United
States. The construction, alteration, establishment, or expansion, or
the proposed construction, alteration, establishment, or expansion, of
a structure or sanitary landfill that:
(1) Endangers safety in air commerce, related to the activities of
the DoD.
(2) Interferes with the efficient use and preservation of the
navigable airspace and of airport traffic capacity at public-use
airports, related to the activities of the DoD.
(3) Will significantly impair or degrade the capability of the DoD
to conduct training, research, development, testing, and evaluation,
and operations or maintain military readiness.
(m) United States. The several States, the District of Columbia,
the Commonwealths of Puerto Rico and the Northern Mariana Islands,
American Samoa, Guam, Midway and Wake Islands, the U.S. Virgin Islands,
any other territory or possession of the United States, and associated
navigable
[[Page 65116]]
waters, contiguous zones, and territorial seas and the airspace of
those areas.
Subpart B--Policy
Sec. 211.4 Policy.
(a) It is an objective of the Department of Defense to ensure that
the robust development of renewable energy sources and the increased
resiliency of the commercial electrical grid may move forward in the
United States, while minimizing or mitigating any adverse impacts on
military operations and readiness.
(b) The participation of the DoD in the process of the Federal
Aviation Administration conducted pursuant to 49 U.S.C. 44718 shall be
conducted in accordance with this part. No other process shall be used
by a DoD Component.
(c) Nothing in this part shall be construed as affecting the
authority of the Secretary of Transportation under 49 U.S.C. 44718.
Sec. 211.5 Responsibilities.
(a) Pursuant to subsection (e)(4) of section 358, the Deputy
Secretary of Defense is designated as the senior officer. Only the
senior officer may convey to the Secretary of Transportation a
determination that a project filed with the Secretary of Transportation
pursuant to 49 U.S.C. 44718 would result in an unacceptable risk to the
national security of the United States.
(b) Pursuant to subsection (b)(1) of section 358, the Under
Secretary of Defense for Acquisition, Technology, and Logistics is
designated as the senior official. Only the senior official may provide
to the senior officer a recommendation that the senior officer
determine a project filed with the Secretary of Transportation pursuant
to 49 U.S.C. 44718 would result in an unacceptable risk to the national
security of the United States.
(c) Pursuant to subsection (e)(1) of section 358, the Deputy Under
Secretary of Defense (Installations & Environment), in coordination
with the Deputy Assistant Secretary of Defense (Readiness) and the
Principal Deputy Director, Operational Test and Evaluation, shall
review a proper application for a project filed pursuant to 49 U.S.C.
44718 and received from the Secretary of Transportation and provide a
preliminary assessment of the level of risk of adverse impact on
military operations and readiness that would arise from the project and
the extent of mitigation that may be needed to address such risk.
(d) Pursuant to subsection (b)(1) of section 358, the Office of the
Deputy Under Secretary of Defense (Installations & Environment) is
designated as the lead organization. Under the authority, direction,
and control of the Under Secretary of Defense for Acquisition,
Technology, and Logistics, there is, within the Office of the Deputy
Under Secretary, a DoD Siting Clearinghouse. The Clearinghouse:
(1) Shall have a governing board organized in accordance with DoD
Instruction 5105.18, DoD Intergovernmental and Intragovernmental
Committee Management Program.
(2) Has an executive director who is a Federal Government employee,
appointed by the Deputy Under Secretary of Defense (Installations &
Environment).
(3) Performs such duties as assigned in this part and as the Deputy
Under Secretary directs.
Subpart C--Project Evaluation Procedures
Sec. 211.6 Initiating a Formal DoD Review of a Proposed Project.
(a) A formal review of a proposed project begins with the receipt
from the Secretary of Transportation by the Clearinghouse of a proper
application filed with the Secretary of Transportation pursuant to 49
U.S.C. 44718.
(1) The Clearinghouse will convey the application as received to
those DoD Components it believes may have an interest in reviewing the
application.
(2) The DoD Components that receive the application shall provide
their comments and recommendations on the application to the
Clearinghouse no later than 20 days after they receive the application.
(3) Not later than 30 days after receiving the application from the
Secretary of Transportation, the Clearinghouse shall evaluate all
comments and recommendations received and take one of two actions:
(i) Determine that the proposed project will not have an adverse
impact on military operations and readiness, in which case it shall
notify the Secretary of Transportation of such determination.
(ii) Determine that the proposed project may have an adverse impact
on military operations and readiness. When the Clearinghouse makes such
a determination it shall immediately--
(A) Notify the applicant of the determination of the Clearinghouse
and offer to discuss mitigation with the applicant to reduce the
adverse impact;
(B) Designate one or more DoD Components to engage in discussions
with the applicant to attempt to mitigate the adverse impact;
(C) Notify the Secretary of Transportation that the Department of
Defense has determined that the proposed project may have an adverse
impact on military operations and readiness, and, if the cause of the
adverse impact is due to the proposed project exceeding an obstruction
standard set forth in subpart C of part 77 of title 14 of the Code of
Federal Regulations, identify the specific standard and how it would be
exceeded; and
(D) Notify the Secretary of Transportation and the Secretary of
Homeland Security that the Clearinghouse has offered to engage in
mitigation discussions with the applicant.
(4) The applicant must provide to the Clearinghouse its agreement
to discuss the possibility of mitigation within five days of receipt of
the notification from the Clearinghouse.
(b) If the applicant agrees to enter into discussions with the DoD
to seek to mitigate an adverse impact, the designated DoD Components
shall engage in discussions with the applicant to attempt to reach
agreement on measures that would mitigate the adverse impact of the
proposed project on military operations and readiness. The
Clearinghouse shall invite the Administrator of the Federal Aviation
Administration and the Secretary of Homeland Security to participate in
such discussions.
(1) Such discussions shall not extend more than 90 days beyond the
initial notification to the applicant, unless both the designated DoD
Components and the applicant agree, in writing, to an extension of a
specific period of time.
(i) If agreement between the applicant and the designated DoD
Components has not been reached on mitigation measures by that time and
no extension has been mutually agreed to, the designated DoD Components
shall notify the Clearinghouse of the results of the discussions and
the analysis and recommendations of the Components with regard to the
proposed project as it is proposed after discussions.
(ii) If agreement between the applicant and the designated DoD
Components has been reached on mitigation measures that remove the
adverse impact of the proposed project on military operations and
readiness, the DoD Components shall notify the Clearinghouse of the
agreement and the applicant shall notify the Secretary of
[[Page 65117]]
Transportation of such agreement and amend its application accordingly.
(2) If the applicant and the designated DoD Components are unable
to reach agreement on mitigation, the Clearinghouse shall review the
analysis and recommendations of the DoD Components and determine if the
proposed project as it may have been modified by the applicant after
discussions would result in an unacceptable risk to the national
security of the United States.
(i) If the Clearinghouse determines that the proposed project as it
may have been modified by the applicant after discussions would result
in an unacceptable risk to the national security of the United States,
it shall make a recommendation to the senior official to that effect.
If the Clearinghouse determines, contrary to the recommendations of the
DoD Components, that the proposed project as it may have been modified
by the applicant after discussions would not result in an unacceptable
risk to the national security of the United States, it shall make a
recommendation to the senior official to that effect.
(ii) If the senior official concurs with the recommendation of the
Clearinghouse, the senior official shall make a recommendation to the
senior officer that is consistent with the recommendation of the
Clearinghouse. If the senior official does not agree with the
recommendation of the Clearinghouse, the senior official may make a
recommendation to the senior officer to that effect.
(iii) The senior officer shall consider the recommendation of the
senior official, and, after giving full consideration to mitigation
actions available to the DoD and those agreed to by the applicant,
determine whether the proposed project as it may have been modified by
the applicant would result in an unacceptable risk to the national
security of the United States. If the senior officer makes such a
determination, the senior officer shall convey that determination to
the Secretary of Transportation, identifying which of the three
criteria in section 211.3(l) creates the unacceptable risk to the
national security of the United States.
(iv) Any mitigation discussions engaged in by the Department of
Defense pursuant to this part shall not be binding upon any other
Federal agency, nor waive required compliance with any other law or
regulation.
(c)(1) If the applicant does not agree to enter into discussions
with the DoD to seek to mitigate an adverse impact, the Clearinghouse
shall review the analysis and recommendations of the designated DoD
Components and determine if the proposed project would result in an
unacceptable risk to the national security of the United States. If the
Clearinghouse determines that the proposed project would result in an
unacceptable risk to the national security of the United States, it
shall make a recommendation to the senior official to that effect. If
the Clearinghouse determines, contrary to the recommendations of the
DoD Components, that the proposed project would not result in an
unacceptable risk to the national security of the United States, it
shall make a recommendation to the senior official to that effect.
(2) If the senior official concurs with the recommendation of the
Clearinghouse, the senior official shall make a recommendation to the
senior officer that is consistent with the recommendation of the
Clearinghouse. If the senior official does not agree with the
recommendation of the Clearinghouse, the senior official may make a
recommendation to the senior officer to that effect.
(3) The senior officer shall consider the recommendation of the
senior official, and, after giving full consideration to mitigation
actions available to the DoD and those agreed to by the applicant,
determine whether the proposed project would result in an unacceptable
risk to the national security of the United States. If the senior
officer makes such a determination, the senior officer shall convey
that determination to the Secretary of Transportation, identifying
which of the three criteria in section 211.3(l) creates the
unacceptable risk to the national security of the United States.
(d) The Clearinghouse may, on behalf of itself, the senior
official, or the senior officer, seek an extension of time from the
Secretary of Transportation for consideration of the application.
Sec. 211.7 Initiating an Informal DoD Review of a Proposed Project.
(a) An informal review of a project begins with the receipt from a
requester by the Clearinghouse of a request for an informal review. In
seeking an informal review, the requester shall provide the following
information to the Clearinghouse:
(1) The geographic location of the project including its latitude
and longitude; and
(2) The nature of the project.
(3) The requester is encouraged to provide as much additional
information as is available. The more information provided by the
requester, the greater will be the accuracy and reliability of the
resulting DoD review.
(b) The Clearinghouse shall, within five days of receiving the
information provided by the requestor, convey that information to those
DoD Components it believes may have an interest in reviewing the
request.
(1) The DoD Components that receive the request from the
Clearinghouse shall provide their comments and recommendations on the
request to the Clearinghouse no later than 30 days after they receive
the request.
(2) Not later than 50 days after receiving the request from the
requester, the Clearinghouse shall evaluate all comments and
recommendations received and take one of two actions:
(i) Determine that the project will not have an adverse impact on
military operations and readiness, in which case it shall notify the
requester of such determination. In doing so, the Clearinghouse shall
also advise the requester that the informal review by the DoD does not
constitute an action under 49 U.S.C. 44718 and that neither the DoD nor
the Secretary of Transportation are bound by the determination made
under the informal review.
(ii) Determine that the project will have an adverse impact on
military operations and readiness.
(A) When the requester is the project proponent and the
Clearinghouse makes such a determination, the Clearinghouse shall
immediately--
(1) Notify the requester of the determination and the reasons for
the conclusion of the Clearinghouse and advise the requester that the
DoD would like to discuss the possibility of mitigation to reduce any
adverse impact; and
(2) Designate one or more DoD Components to engage in discussions
with the requester to attempt to mitigate the adverse impact.
(B) When the requester is a state or local official, notify the
requester of the determination of the Clearinghouse and the reasons for
that conclusion.
(c) If the requester is the project proponent and agrees to enter
into discussions with the DoD to seek to mitigate an adverse impact,
the designated DoD Components shall engage in discussions with the
requester in an attempt to reach agreement on measures that would
mitigate the adverse impact of the project on military operations and
readiness.
Sec. 211.8 Inquiries Received by DoD Components.
(a) An inquiry received by a DoD Component other than the
[[Page 65118]]
Clearinghouse relating to an application filed with the Secretary of
Transportation pursuant to 49 U.S.C. 44718 shall be forwarded to the
Clearinghouse by the DoD Component except when that DoD Component has
been designated by the Clearinghouse to engage in discussions with the
entity making the inquiry.
(b) A request for informal DoD review or any other inquiry related
to matters covered by this part and received by a DoD Component other
than the Clearinghouse shall be forwarded to the Clearinghouse by that
Component except when that DoD Component has been designated by the
Clearinghouse to engage in discussions with the entity making the
request.
Sec. 211.9 Mitigation Options.
(a) In discussing mitigation to avoid an unacceptable risk to the
national security of the United States, the DoD Components designated
to discuss mitigation with an applicant or requester shall, as
appropriate and as time allows, analyze the following types of DoD
mitigation to determine if they identify feasible and affordable
actions that may be taken to mitigate adverse impacts of projects on
military operations and readiness:
(1) Modifications to military operations.
(2) Modifications to radars or other items of military equipment.
(3) Modifications to military test and evaluation activities,
military training routes, or military training procedures.
(4) Providing upgrades or modifications to existing systems or
procedures.
(5) The acquisition of new systems by the DoD and other departments
and agencies of the Federal Government.
(b) In discussing mitigation to avoid an unacceptable risk to the
national security of the United States, the applicant or requester, as
the case may be, should consider the following possible actions:
(1) Modification of the proposed structure, operating
characteristics, or the equipment in the proposed project.
(2) Changing the location of the proposed project.
(3) Providing a voluntary contribution of funds to offset the cost
of measures undertaken by the Secretary of Defense to mitigate adverse
impacts of the project on military operations and readiness.
Sec. 211.10 Reporting Determinations to Congress.
(a) Not later than 30 days after making a determination of
unacceptable risk pursuant to section 211.6, the senior officer shall
submit to the congressional defense committees a report on such
determination and the basis for such determination.
(b) Such a report shall include--
(1) An explanation of the operational impact that led to the
determination.
(2) A discussion of the mitigation options considered.
(3) An explanation of why the mitigation options were not feasible
or did not resolve the conflict.
Subpart D--Communications and Outreach
Sec. 211.11 Communications With the Clearinghouse.
All communications to the Clearinghouse by applicants, requesters,
or members of the public should be addressed to:
Executive Director, DoD Siting Clearinghouse, Office of the Deputy
Under Secretary of Defense (Installations and Environment), Room 5C646,
3400 Defense Pentagon, Washington, DC 20301-3400 or to such internet
address as the Clearinghouse may provide.
Sec. 211.12 Public Outreach.
(a) The DoD shall establish a Web site accessible to the public
that--
(1) Lists the applications and requests for informal review the DoD
is currently considering.
(2) Identifies the stage of the action, e.g., preliminary review,
referred for mitigation discussions, determined to be an unacceptable
risk.
(3) Indicates how the public may provide comments.
(b) The Clearinghouse shall publish a handbook to provide
applicants, requesters, and members of the public with necessary
information to assist them in participating in the Mission
Compatibility Evaluation Process.
Dated: October 12, 2011.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-26987 Filed 10-19-11; 8:45 am]
BILLING CODE 5001-06-P
