65112 Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Rules and Regulations 

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 [Removed] 

■ Par. 5. Section 1.355–0T is removed. 

§ 1.355–2T [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 

DEPARTMENT OF JUSTICE 

28 CFR Part 104 

[Docket No. CIV 151] 

RIN 1105–AB39 

James Zadroga 9/11 Health and 

Compensation Act of 2010 

AGENCY: Department of Justice. 

ACTION: Final rule; correction. 

SUMMARY: 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 

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 

AGENCY: Office of the Under Secretary of 

Defense for Acquisition, Technology, 

and Logistics, DoD. 


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Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Rules and Regulations 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: http:// 

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 http:// 

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. 

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, 

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 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 Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Rules and Regulations 65115 

• Federal eRulemaking Portal: http:// 

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 http:// 

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. 

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 

§ 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 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 


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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. 

§ 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 

§ 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 


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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 

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 

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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65118 Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Rules and Regulations 

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. 

§ 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. 

§ 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 

§ 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2011–0816] 

RIN 1625–AA09 

Drawbridge Operation Regulation; 

Bear Creek, Sparrows Point, MD 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: 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. 

DATES: This rule is effective October 20, 

2011. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket, are part of docket USCG–2011– 

0816 and are available by going to 

http://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: 

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 


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