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[Federal Register Volume 78, Number 234 (Thursday, December 5, 2013)]
[Rules and Regulations]
[Pages 73085-73092]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28868]

[[Page 73085]]

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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.

ACTION: Final rule.

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SUMMARY: Section 358 of the Ike Skelton National Defense Authorization 
Act for Fiscal Year 2011 required the Department of Defense (DoD) to 
designate a senior official and a lead organization to serve as a 
clearinghouse for the coordination of DoD review of applications filed 
with the Secretary of Transportation. Applications referred to the DoD 
involve proposals for the construction of structures that may affect 
navigable air space. Section 358 requires DoD to issue procedures for 
addressing the impacts of those structures on military operations and 
determining if they pose an unacceptable risk to the national security 
of the United States. Section 358 requires the establishment of a 
comprehensive strategy for addressing military impacts of renewable 
energy projects and other energy projects and annual reports to 
Congress; these requirements are not part of this rule and will be 
addressed separately. Nor does this rule deal with other proposal 
review 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 on January 6, 2014.

FOR FURTHER INFORMATION CONTACT: Bill Van Houten, (703) 571-9068, or at 
DoDSitingClearinghouse@osd.mil.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority
II. Background
III. Summary of Significant Changes to the Rule
    A. Definitions
    B. Project Evaluation Procedures
    C. Communications and Outreach
IV. Other Adjustments to the Final Rule
V. Executive Summary
VI. Administrative Requirements
    A. Executive Order 12866, Regulatory Planning and Review and 
Executive Order 13563, Improving Regulation and Regulatory Review.
    B. Section 202, Public Law 104-4, Unfunded Mandates Reform Act
    C. Public Law 96-354, Regulatory Flexibility Act (5 U.S.C. 601)
    D. Section 96-511, Paperwork Reduction Act (44 U.S.C. Chapter 
35)
    E. Executive Order 13132, Federalism

I. Authority

    This action is authorized by section 358 of the Ike Skelton 
National Defense Authorization Act for Fiscal Year 2011, Public Law 
111-383, as amended by section 331 of Public Law 112-81.

II. Background

    The Department of Defense (hereinafter the ``Department'') 
published an interim final rule in the Federal Register on October 20, 
2011, at 76 FR 65112.
    The public comment period for the interim final rule ended on 
December 19, 2011. Two commenters submitted comments on the interim 
final rule. The preamble to the final rule provides a discussion of 
each section of the interim final rule on which comments were received. 
Where changes in the rule are being made, specific reference is made to 
those changes in the discussion. Where no specific reference is made in 
the discussion, no change to the interim final rule is being made. 
Revisions to the rule that are simply editorial or that do not reflect 
substantive changes are not addressed in this preamble.
    All comments the Department received are presented in a document 
available at http://www.acq.osd.mil/ie/siting.shtml.

III. Summary of Significant Changes to the Final Rule

    This section contains the Department's responses to the comments 
received on the interim final rule, organized by the structure of the 
interim final and final rules.
    The primary purpose of the rule is to promulgate the Department's 
policies and procedures for the external interfaces that are necessary 
to comply with section 358 of Public Law 111-383. Most of the comments 
received were recommendations for greater specificity in the rule, 
particularly with respect to standards, criteria, and communications. 
The Department has carefully considered the comments it has received. 
Its responses follow:

A. Definitions

    Comment: One comment characterized the definition of ``adverse 
impact on military operations and readiness'' as overly broad and 
stated that it is not clear from either section 358 or the interim 
final rule how an adverse impact that rises to the level of an 
unacceptable risk to national security differs from an adverse impact 
that does not. The same comment suggested that the rule distinguish 
impacts that do not significantly impact military operations from those 
that could so that further evaluation and discussion of mitigation 
measures could be focused on the latter.
    Response: The Department has made some minor grammatical 
adjustments to the definition of ``Unacceptable risk to the national 
security of the United States''. However, the coordinated evaluation 
process required by section 358 is still not sufficiently mature for 
the Department to establish more specific quantitative thresholds to 
distinguish adverse impacts that do not significantly impact military 
operations and readiness from those that do. The law provides for the 
Department to establish procedures to ensure that the Secretary of 
Defense does not object to a project unless the Secretary of Defense or 
a senior officer designated by the Secretary of Defense determines that 
the project would result in an unacceptable risk to the national 
security of the United States. The rule provides that the Deputy 
Secretary of Defense may make a determination that a particular project 
would pose an unacceptable risk to national security and it establishes 
procedures to ensure that, in such cases, the Deputy Secretary of 
Defense has the benefit of a recommendation from a senior official as 
well as information about the mitigation measures that were available 
to both the Department and the applicant. The Department does not 
believe that further specificity is needed at this time.
    Comment: One comment suggested expanding the definition of the term 
``requester'' in the rule. Under the rule, a requester is authorized to 
ask the DoD for an informal review of a proposed project. However, the 
definition of ``requester'' in the interim final rule did not include 
landowners, and the comment argued that large landowners are in a 
position to steer developers to portions of their property that have 
better resources for renewable energy projects and fewer or more 
manageable conflicts with DoD interests.
    Response: The Department agrees, and the definition of 
``requester'' has been expanded in the final rule to include 
landowners. A definition of the term ``landowner'' has been provided in 
the rule.

B. Project Evaluation Procedures

    Comment: One comment stated that the interim final rule was not 
clear as to what level of information will be shared with the applicant 
or with the Federal Aviation Administration to explain a DoD 
determination that a project will have an adverse impact on military

[[Page 73086]]

operations and readiness or pose an unacceptable risk to national 
security.
    Response: Because some explanations may involve sensitive or 
classified information, it is appropriate to avoid committing the 
Department to a certain level, or format, for transmitting information 
about such determinations to either applicants or the Federal Aviation 
Administration. The language in the rule allows the Department the 
flexibility to provide explanations in a manner that the Department 
considers necessary and appropriate as well as to withhold information 
that could compromise the national security of the United States if it 
were released. No change was made to the rule to address this comment.
    Comment: One comment questioned the provision in section 
211.6(b)(1)(ii) of the interim final rule that requires the applicant 
to amend an application that has been filed with the Secretary of 
Transportation if the applicant and the Department reach agreement on 
mitigation measures that remove an adverse impact on military 
operations and readiness. The comment contends that such an amendment 
is unnecessary if the agreed-upon mitigation solely involves measures 
to be taken by DoD.
    Response: The Department agrees, and the provision has been 
modified in the final rule to require the applicant to file an amended 
application only if the agreed-upon mitigation measures entail 
modification to the proposed project.
    Comment: One comment pointed out that the language in the subpart 
of the interim final rule that addresses project evaluation procedures 
could be interpreted as implying a preference for mitigation measures 
to be taken by the applicant over mitigation measures to be taken by 
the Department. The comment recommended that the language in question 
be modified to ensure there is no implied preference for mitigation on 
the part of the applicant.
    Response: The Department does not agree that the language in the 
rule suggests a preference for mitigation measures to be taken by the 
applicant. Section 211.6(b)(2)(iii) and Section 211.6(c)(3) provide for 
consideration of the mitigation actions that are available to the 
Department as well as those that have been agreed to by the applicant. 
No change was made in the rule to address this comment.
    Comment: One comment raised a question as to whether all adverse 
impacts must be mitigated or only those that are determined to pose an 
unacceptable risk to national security.
    Response: Since only the senior officer designated by the Secretary 
of Defense can officially determine that a proposed project poses an 
unacceptable risk to the national security of the United States and 
communicate that determination to the Secretary of Transportation, it 
would not be cost effective to make such determinations relative to 
each project before deciding whether or not to mitigate the adverse 
impact of that project. However, in response to that comment, sections 
211.6(a)(3)(ii) and 211.7(b)(2)(ii) have been added to provide for 
determinations that the adverse impact posed by a proposed project is 
sufficiently attenuated that it does not require mitigation.
    Comment: One comment recommended that the procedures in the rule be 
modified to allow landowners to address mitigation. That comment 
contended that large landowners in particular would have more 
flexibility in addressing mitigation than a developer who only has a 
leasehold interest on a portion of the landowner's property.
    Response: In the final rule, section 211.3 has been modified to 
include the owners of land on which a proposed project is planned among 
the parties that are eligible to request an informal review from the 
Department of Defense. Additionally, section 211.7(b)(2)(ii)(B) has 
been modified to ensure that landowners (when they are requesters) are 
notified of Clearinghouse determinations.
    Comment: One comment recommended that the Department provide 
quantitative guidance in the rule concerning what constitutes at 
acceptable level of mitigation.
    Response: It is not currently possible to identify objective 
measures of mitigation with sufficient specificity to enumerate them in 
a rule. The Department is working to develop guidelines and models, but 
those guidelines and models are not yet mature. To provide some 
additional clarity, however, in section 211.9(b) of the final rule, the 
Department included a provision that an applicant or requester 
discussing mitigation with the Department should consider limiting the 
daily operating hours or the number of days that equipment in the 
proposed structure would be in use along with other possible actions 
that could be taken to avoid an unacceptable risk to the national 
security of the United States.
    Comment: One commenter expressed concern that section 211.9(b)(3) 
of the interim final rule urged applicants to consider providing a 
voluntary contribution to offset the cost of mitigation measures 
undertaken by the DoD, but did not provide a specific process for the 
transfer of such funds or a statement of what commitments the 
Department would make in return for such funds. The comment also 
requested clarification as to how large a contribution would be 
necessary to lead the Department to withdraw an objection, whether the 
only acceptable level of contributions was to pay the full cost of 
mitigation, or whether a Federal cost share would be available in some 
circumstances.
    Response: It is not possible to specify in a rule what commitments, 
if any, the Department would make in conjunction with any given 
voluntary contribution. Certainly, the decision to withdraw an 
objection based on the existence of an unacceptable risk to national 
security will not be predicated on the magnitude of a voluntary 
contribution. A voluntary contribution is in the nature of mitigation 
since it allows the Department to reduce or eliminate an adverse 
impact. The effect that a voluntary contribution has on the analysis of 
adverse impact and unacceptable risk will vary from project to project. 
In some instances, it may remove an adverse impact; in others, an 
unacceptable risk may be unavoidable and not subject to mitigation. The 
facts of each project will determine whether a voluntary contribution 
will act to mitigate an adverse impact. It is not necessary to specify 
a method of payment in the rule since that information will be 
available on the Clearinghouse Web site. No change was made to the rule 
to address this comment.

C. Communications and Outreach

    Comment: With respect to section 211.12 of the interim final rule, 
one comment observed that proposed renewable energy projects are 
competition sensitive. Because of that concern, the comment recommended 
that the Department refrain from publicizing proposed projects for 
which a requester is seeking informal review on the DoD Web site, 
noting that publication of such projects would limit the attractiveness 
of the early consultation option.
    Response: The rule requires only the minimum information necessary 
to conduct a useful review. An additional provision was added to 
section 211.7(a) encouraging requestors to mark any documents 
containing proprietary or competition-sensitive information accordingly 
when requesting an informal review of a proposed project. However, the 
DoD must comply with all applicable laws, including the Freedom of 
Information Act.

[[Page 73087]]

    In response to this comment, section 211.12 was modified to 
eliminate the requirement for the Department to include the requests 
for informal review that the Department is considering on its Web site.

IV. Other Adjustments to the Final Rule

    This section identifies and explains minor adjustments that the 
Department made to the rule that were not the result of public 
comments.
    In the final rule, the applicability of the rule is extended to 
Indian tribal governments, and they are included in the definition of a 
``requester'' so they, like State and local governments, have the 
authorization to seek informal reviews of proposed projects. It was the 
Department's view that Indian tribal governments fell within the 
category of state governments, to which they are somewhat analogous as 
separate sovereigns. But in order to avoid any doubt, the rule is being 
changed to clarify this point.
    In section 211.7 of the final rule, the Department includes a 
requirement for requesters that desire an informal review of a project 
to provide the height of the project as part of the required 
information. It was the Department's view that the requirement to 
provide the ``nature of the project'' would necessarily include the 
project's height. However, to avoid any doubt, the rule is being 
changed to specifically include a reference to the height of the 
project.

V. Executive Summary

    In section 358 of Public Law 111-383, 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 rule states the two primary purposes of the 
rule which are to provide for DoD commenting on (1) applications filed 
pursuant to 49 U.S.C. 44718 and (2) 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, Indian tribal, and 
local officials and landowners), 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 Public Law 111-383, 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, a landowner on whose property such 
project is proposed to be built, or a State, Indian tribal, 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 Public Law 111-383. 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 it 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 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

[[Page 73088]]

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.

VI. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review and Executive 
Order 13563, Improving Regulation and Regulatory Review

    It has been certified that this rule is not an economically 
significant rule that will result in an annual effect of $100 million 
or more on the national economy or which will have other substantial 
impacts. This rule has been reviewed by the Office of Management and 
Budget as required under the provisions of E.O. 12866.

B. 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.

C. 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 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 the DoD.

D. Public Law 96-511, Paperwork Reduction Act (44 U.S.C. Chapter 35)

    It has been certified that the Paperwork Reduction Act applies. 
This rule contains information collection requirements under OMB 
Control Number 0790-0005 titled, ``Informal DoD Review of Energy 
Projects.''

E. 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 revised 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, as amended by Public 
Law 112-81, Section 331.

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, Indian tribal, or local official, a landowner, 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.

    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.
    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.
    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.

[[Page 73089]]

    Clearinghouse. The DoD Siting Clearinghouse, established under the 
Deputy Under Secretary of Defense (Installations & Environment).
    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.
    Days. All days are calendar days but do not include Federal 
holidays.
    Landowner. A person, partnership, corporation, or other legal 
entity, that owns a fee interest in real property on which a proposed 
project is planned to be located.
    Military readiness. Includes any training or operation that could 
be related to combat readiness, including testing and evaluation 
activities.
    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.
    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.
    Requester. A developer of a renewable energy development or other 
energy project, a State, Indian tribal, or local official, or a 
landowner seeking an informal review by the DoD of a project.
    Section 358. Section 358 of the Ike Skelton National Defense 
Authorization Act for Fiscal Year 2011, Public Law 111-383.
    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 would:
    (1) Endanger safety in air commerce, related to the activities of 
the DoD.
    (2) Interfere 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) Significantly impair or degrade the capability of the DoD to 
conduct training, research, development, testing, and evaluation, and 
operations or to maintain military readiness.
    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 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 three 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 will have an adverse 
impact on military operations and readiness but that the adverse impact 
involved is sufficiently attenuated that it does not require 
mitigation. When the Clearinghouse makes such a determination, it shall 
notify the Secretary of Transportation of such determination.

[[Page 73090]]

    (iii) 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. The Clearinghouse may also invite other Federal 
agencies 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. If the mitigation measures entail modification to the 
proposed project, the applicant shall notify the Secretary of 
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 Sec.  211.3 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) 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.
    (1) 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 Sec.  211.3 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

[[Page 73091]]

review, the requester shall provide the following information to the 
Clearinghouse:
    (1) The geographic location of the project including its latitude 
and longitude,
    (2) The height of the project,
    (3) The nature of the project.
    (4) 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. When a request for an informal review includes 
information that is proprietary or competition sensitive, requesters 
are encouraged to mark the documents they submit accordingly.
    (b) The Clearinghouse shall, within five days of receiving the 
information provided by the requester, 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 three 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 but that the adverse impact involved 
is sufficiently attenuated that it does not require mitigation. The 
Clearinghouse 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.
    (iii) Determine that the project will have an adverse impact on 
military operations and readiness.
    (A) When the requester is the project proponent, 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, Indian tribal, or local official 
or a landowner, notify the requester of the determination 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 
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) Limiting daily operating hours or the number of days the 
equipment in the proposed structure is in use in order to avoid 
interference with military activities.
    (4) 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 Sec.  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, if by electronic mail, to 
DoDSitingClearinghouse@osd.mil. Additional information about the

[[Page 73092]]

Clearinghouse and means of contacting it are available at the following 
URL: http://www.acq.mil/ie/sch.

Sec.  211.12  Public outreach.

    (a) The DoD shall establish a Web site accessible to the public 
that--
    (1) Lists the applications that 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 to the DoD.
    (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: November 18, 2013.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2013-28868 Filed 12-4-13; 8:45 am]
BILLING CODE 5001-06-P
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