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[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Rules and Regulations]
[Pages 65112-65118]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26987]

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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.

[[Page 65113]]

ACTION: Interim final rule.

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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 DoDSitingClearing- 
house@osd.mil.

SUPPLEMENTARY INFORMATION: 
    Section 358 of the Ike Skelton National Defense Authorization Act 
for Fiscal Year 2011, Public Law 111-383, became law on January 7, 
2011. In that provision, Congress required, among other things, that 
the DoD implement new procedures relating to how the DoD reviews and 
comments on applications filed with the Secretary of Transportation 
pursuant to 49 U.S.C. 44718. Section 358 also specifies who within DoD 
may provide such comments to the Secretary of Transportation, that DoD 
will engage in outreach activities with interested parties, and that 
Congress must be advised when the DoD objects to an application filed 
pursuant to 49 U.S.C. 44718.
    Section 211.1 of this Interim Rule states the two primary purposes 
of the rule which are to provide for DoD commenting on applications 
filed pursuant to 49 U.S.C. 44718 and requests for reviews of projects 
prior to applications being filed pursuant to 49 U.S.C. 44718.
    Section 211.2 addresses the applicability of part 211. This part 
applies to all components of the DoD, those applicants filing 
applications pursuant to 49 U.S.C. 44718 when those applications are 
conveyed by the Secretary of Transportation to the Department of 
Defense, those requesting reviews of projects prior to applications 
being filed under 49 U.S.C. 44718 (including State and local 
officials), and those providing comments to DoD relating to its actions 
in reviewing applications. It also applies, geographically, to the 
United States.
    Section 211.3 provides definitions. The definition of ``adverse 
impact on military operations and readiness'' provides that a 
demonstrable impairment or degradation of the ability of the armed 
forces to perform their warfighting missions constitutes an adverse 
impact. The definition of ``applicant'' refers to an entity filing a 
proper application with the Secretary of Transportation pursuant to 49 
U.S.C. 44718, and whose application has been provided by the Secretary 
of Transportation to the DoD. The definition of ``armed forces'' refers 
to the definition at 10 U.S.C. 101(a)(4), which includes the Army, 
Navy, Air Force, and Marine Corps, but excludes the Coast Guard. The 
definition of ``congressional defense committees'' is taken from 
section 3 of the Ike Skelton National Defense Authorization Act for 
Fiscal Year 2011, which, in turn, adopts by reference the definition of 
the term in 10 U.S.C. 101(a)(16). The definition of ``military 
readiness'' is taken from the definition of the term provided in 
section 358. The definition of ``mitigation'' provides a general 
description of the term while leaving to individual actions more 
specific examples of what may constitute mitigation. The definition of 
``proposed project'' is the project as submitted to the Secretary of 
Transportation pursuant to 49 U.S.C. 44718. The definition of 
``requester'' refers to a developer of a renewable energy development 
or other energy project or a state or local official seeking an 
informal review of a project by the DoD prior to the project being 
submitted for formal review pursuant to 49 U.S.C. 44718. The definition 
of ``section 358'' refers to the authorizing provision, section 358 of 
the Ike Skelton National Defense Authorization Act for Fiscal Year 
2011. The definition of ``unacceptable risk to the national security of 
the United States'' includes the two existing criteria found in 49 
U.S.C. 44718, namely the construction, alteration, establishment, or 
expansion, or the proposed construction, alteration, establishment, or 
expansion, of a structure or sanitary landfill that endangers safety in 
air commerce or interferes with the efficient use and preservation of 
the navigable airspace and of airport traffic capacity at public-use 
airports, but, for purposes of this rule, only when related to the 
activities of the DoD. The definition also includes an additional 
criterion consisting of actions that will significantly impair or 
degrade the capability of the DoD to conduct training, research, 
development, testing, and evaluation, and operations or to maintain 
military readiness. The definition of ``United States'' is included to 
provide the geographical limitation of the part, clarifying that the 
part does not apply outside of the United States.
    Section 211.4 provides the general policy of the part, taken from 
section 358(a). It also limits the participation of DoD in the Federal 
Aviation Administration's process under 49

[[Page 65114]]

U.S.C. 44718 to the process provided in this rule.
    Section 211.5 specifies the officials with authorities and 
responsibilities under the part pursuant to section 358. The Deputy 
Secretary of Defense is designated as the senior officer who is 
authorized to provide a determination to the Secretary of 
Transportation that a project filed pursuant to 49 U.S.C. 44718 would 
result in an unacceptable risk to the national security of the United 
States. The Under Secretary of Defense for Acquisition, Technology, and 
Logistics is designated as the senior official who may make a 
recommendation to the Deputy Secretary of Defense that such a project 
would result in such a risk. The Deputy Under Secretary of Defense 
(Installations & Environment) is designated as the official who, in 
coordination with the Deputy Assistant Secretary of Defense (Readiness) 
and the Principal Deputy Director, Operational Test and Evaluation, 
reviews such a project and provides a preliminary assessment of the 
level of risk of adverse impact on military operations and readiness 
that would arise from the project and the extent of mitigation that may 
be needed to address such risk. The Office of the Deputy Under 
Secretary of Defense (Installations & Environment) is designated as the 
lead organization, and the DoD Siting Clearinghouse is established and 
organized under the Deputy Under Secretary.
    Section 211.6 provides the procedures for formal DoD review of a 
project filed by an applicant with the Secretary of Transportation 
pursuant to 49 U.S.C. 44718.
    Section 211.7 provides the procedures for informal DoD review of a 
project submitted by a requester prior to submitting a formal 
application pursuant to 49 U.S.C. 44718.
    Section 211.8 directs DoD Components to forward any inquiries or 
requests they may receive to the Clearinghouse so as to avoid 
unauthorized action by a Component outside of the process established 
by this rule.
    Section 211.9 provides some of the types of mitigation to be 
considered by the DoD and the applicant/requester when discussing 
mitigation.
    Section 211.10 provides for the notification to Congress required 
by section 358 when the senior officer makes a determination that a 
project presents an unacceptable risk to the national security of the 
United States.
    Section 211.11 provides for a public Web site where the public can 
review the actions being considered by DoD, track their progress, and 
offer comments.

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

    It has been determined that this rule is not a significant 
regulatory action. This rule does not:
    (1) Have an annual effect to the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligation of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.

Section 202, Public Law 104-4, Unfunded Mandates Reform Act

    It has been certified that 32 CFR part 211 does not contain a 
Federal mandate that may result in the expenditure by State, local, and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    The Congress enacted the Regulatory Flexibility Act (RFA) of 1980, 
as amended, 5 U.S.C. 601-612, to ensure that Government regulations do 
not unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. The RFA requires agencies to 
analyze the economic impact of regulations to determine the extent to 
which there is anticipated to be a significant economic impact on a 
substantial number of small entities. DoD anticipates that the Interim 
Rule could potentially affect a few entities that might otherwise have 
located structures on public or private lands that would present an 
unreasonable risk to the national security of the United States. DoD 
further anticipates that some of these entities will be small entities 
as defined by the Small Business Administration; however, DoD does not 
expect the potential impact to be significant because this rule 
provides procedures to mitigate the impact of such an unreasonable risk 
to the benefit of both the proponent and DoD.

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

    Section 211.7 of this interim final rule contains information 
collection requirements. DoD has submitted the following proposal to 
OMB under the provisions of the Paperwork Reduction Act (44 U.S.C. 
Chapter 35). Comments are invited on: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of DoD, including whether the information will have 
practical utility; (b) the accuracy of the estimate of the burden of 
the proposed information collection; (c) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (d) ways 
to minimize the burden of the information collection on respondents, 
including the use of automated collection techniques or other forms of 
information technology.
    Title: Information for DoD Informal Review of Renewable Energy 
Source Projects.
    Type of Request: New.
    Number of Respondents: 350.
    Responses per Respondent: 15.
    Annual Responses: 5,250.
    Average Burden per Response: 1 hour.
    Annual Burden Hours: 5,250 hours.
    Needs and Uses: This information is necessary to allow the 
Department of Defense to assess the impact on military operations and 
the risk to national security of proposed construction, alteration, 
establishment, or expansion, of a structure or sanitary landfill.
    Affected Public: Business or other for-profit; State, local or 
tribal governments.
    Frequency: On occasion.
    Respondent's Obligation: Voluntary.
    OMB Desk Officer: Written comments and recommendations on the 
information collection should be sent to Ms. Jasmeet Seehra at the 
Office of Management and Budget, DoD Desk Officer, Room 10102, New 
Executive Office Building, Washington, DC 20503, with a copy to the 
Executive Director, DoD Siting Clearinghouse, Office of the Deputy 
Under Secretary of Defense (Installations and Environment), 3400 
Defense Pentagon, Room 5C646, Washington, DC 20301-3400.
    Comments can be received from 30 to 60 days after the date of this 
notice, but comments to OMB will be most useful if received by OMB 
within 30 days after the date of this notice.
    You may also submit comments, identified by docket number [DoD-
2011-OS-0113] and title, by the following method:

[[Page 65115]]

     Federal eRulemaking Portal: 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.

0
Accordingly 32 CFR Part 211 is added to read as follows:

PART 211--MISSION COMPATIBILITY EVALUATION PROCESS

Subpart A--General
Sec.
211.1 Purpose.
211.2 Applicability.
211.3 Definitions.
Subpart B--Policy
211.4 Policy.
211.5 Responsibilities.
Subpart C--Project Evaluation Procedures
211.6 Initiating a Formal DoD Review of a Proposed Project.
211.7 Initiating an Informal DoD Review of a Project.
211.8 Inquiries Received by DoD Components.
211.9 Mitigation Options.
211.10 Reporting Determinations to Congress.
Subpart D--Communications and Outreach
211.11 Communications With the Clearinghouse.
211.12 Public Outreach.

    Authority: Public Law 111-383, Section 358.

Subpart A--General

Sec.  211.1  Purpose.

    This part prescribes procedures pursuant to section 358 of the Ike 
Skelton National Defense Authorization Act for Fiscal Year 2011 to 
provide:
    (a) A formal review of projects for which applications are filed 
with the Secretary of Transportation under 49 U.S.C. 44718, to 
determine if they pose an unacceptable risk to the national security of 
the United States.
    (b) An informal review of a renewable energy development or other 
energy project in advance of the filing of an application with the 
Secretary of Transportation under 49 U.S.C. 44718.

Sec.  211.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Combatant Commands, the Office of the Inspector General of 
the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities in the Department of 
Defense (hereafter referred to collectively as the ``DoD Components'').
    (b) Persons filing applications with the Secretary of 
Transportation for proposed projects pursuant to 49 U.S.C. 44718, when 
such applications are received by the Department of Defense from the 
Secretary of Transportation.
    (c) A State or local official or a developer of a renewable energy 
development or other energy project seeking a review of such project by 
DoD.
    (d) Members of the general public from whom comments are received 
on notices of actions being taken by the Department of Defense under 
this part.
    (e) The United States.

Sec.  211.3  Definitions.

    (a) Adverse impact on military operations and readiness. Any 
adverse impact upon military operations and readiness, including flight 
operations, research, development, testing, and evaluation, and 
training that is demonstrable and is likely to impair or degrade the 
ability of the armed forces to perform their warfighting missions.
    (b) Applicant. An entity filing an application with the Secretary 
of Transportation pursuant to 49 U.S.C. 44718, and whose proper 
application has been provided by the Secretary of Transportation to the 
Clearinghouse.
    (c) Armed forces. This term has the same meaning as provided in 10 
U.S.C. 101(a)(4) but does not include the Coast Guard.
    (d) Clearinghouse. The DoD Siting Clearinghouse, established under 
the Deputy Under Secretary of Defense (Installations & Environment).
    (e) Congressional defense committees. The--
    (1) Committee on Armed Services and the Committee on Appropriations 
of the Senate; and
    (2) Committee on Armed Services and the Committee on Appropriations 
of the House of Representatives.
    (f) Days. All days are calendar days but do not include Federal 
holidays.
    (g) Military readiness. Includes any training or operation that 
could be related to combat readiness, including testing and evaluation 
activities.
    (h) Mitigation. Actions taken by either or both the DoD or the 
applicant to ensure that a project does not create an unacceptable risk 
to the national security of the United States.
    (i) Proposed project. A proposed project is the project as 
described in the application submitted to the Secretary of 
Transportation pursuant to 49 U.S.C. 44718 and transmitted by the 
Secretary of Transportation to the Clearinghouse.
    (j) Requester. A developer of a renewable energy development or 
other energy project or a state or local official seeking an informal 
review by the DoD of a project.
    (k) Section 358. Section 358 of the Ike Skelton National Defense 
Authorization Act for Fiscal Year 2011, Public Law 111-383.
    (l) Unacceptable risk to the national security of the United 
States. The construction, alteration, establishment, or expansion, or 
the proposed construction, alteration, establishment, or expansion, of 
a structure or sanitary landfill that:
    (1) Endangers safety in air commerce, related to the activities of 
the DoD.
    (2) Interferes with the efficient use and preservation of the 
navigable airspace and of airport traffic capacity at public-use 
airports, related to the activities of the DoD.
    (3) Will significantly impair or degrade the capability of the DoD 
to conduct training, research, development, testing, and evaluation, 
and operations or maintain military readiness.
    (m) United States. The several States, the District of Columbia, 
the Commonwealths of Puerto Rico and the Northern Mariana Islands, 
American Samoa, Guam, Midway and Wake Islands, the U.S. Virgin Islands, 
any other territory or possession of the United States, and associated 
navigable

[[Page 65116]]

waters, contiguous zones, and territorial seas and the airspace of 
those areas.

Subpart B--Policy

Sec.  211.4  Policy.

    (a) It is an objective of the Department of Defense to ensure that 
the robust development of renewable energy sources and the increased 
resiliency of the commercial electrical grid may move forward in the 
United States, while minimizing or mitigating any adverse impacts on 
military operations and readiness.
    (b) The participation of the DoD in the process of the Federal 
Aviation Administration conducted pursuant to 49 U.S.C. 44718 shall be 
conducted in accordance with this part. No other process shall be used 
by a DoD Component.
    (c) Nothing in this part shall be construed as affecting the 
authority of the Secretary of Transportation under 49 U.S.C. 44718.

Sec.  211.5  Responsibilities.

    (a) Pursuant to subsection (e)(4) of section 358, the Deputy 
Secretary of Defense is designated as the senior officer. Only the 
senior officer may convey to the Secretary of Transportation a 
determination that a project filed with the Secretary of Transportation 
pursuant to 49 U.S.C. 44718 would result in an unacceptable risk to the 
national security of the United States.
    (b) Pursuant to subsection (b)(1) of section 358, the Under 
Secretary of Defense for Acquisition, Technology, and Logistics is 
designated as the senior official. Only the senior official may provide 
to the senior officer a recommendation that the senior officer 
determine a project filed with the Secretary of Transportation pursuant 
to 49 U.S.C. 44718 would result in an unacceptable risk to the national 
security of the United States.
    (c) Pursuant to subsection (e)(1) of section 358, the Deputy Under 
Secretary of Defense (Installations & Environment), in coordination 
with the Deputy Assistant Secretary of Defense (Readiness) and the 
Principal Deputy Director, Operational Test and Evaluation, shall 
review a proper application for a project filed pursuant to 49 U.S.C. 
44718 and received from the Secretary of Transportation and provide a 
preliminary assessment of the level of risk of adverse impact on 
military operations and readiness that would arise from the project and 
the extent of mitigation that may be needed to address such risk.
    (d) Pursuant to subsection (b)(1) of section 358, the Office of the 
Deputy Under Secretary of Defense (Installations & Environment) is 
designated as the lead organization. Under the authority, direction, 
and control of the Under Secretary of Defense for Acquisition, 
Technology, and Logistics, there is, within the Office of the Deputy 
Under Secretary, a DoD Siting Clearinghouse. The Clearinghouse:
    (1) Shall have a governing board organized in accordance with DoD 
Instruction 5105.18, DoD Intergovernmental and Intragovernmental 
Committee Management Program.
    (2) Has an executive director who is a Federal Government employee, 
appointed by the Deputy Under Secretary of Defense (Installations & 
Environment).
    (3) Performs such duties as assigned in this part and as the Deputy 
Under Secretary directs.

Subpart C--Project Evaluation Procedures

Sec.  211.6  Initiating a Formal DoD Review of a Proposed Project.

    (a) A formal review of a proposed project begins with the receipt 
from the Secretary of Transportation by the Clearinghouse of a proper 
application filed with the Secretary of Transportation pursuant to 49 
U.S.C. 44718.
    (1) The Clearinghouse will convey the application as received to 
those DoD Components it believes may have an interest in reviewing the 
application.
    (2) The DoD Components that receive the application shall provide 
their comments and recommendations on the application to the 
Clearinghouse no later than 20 days after they receive the application.
    (3) Not later than 30 days after receiving the application from the 
Secretary of Transportation, the Clearinghouse shall evaluate all 
comments and recommendations received and take one of two actions:
    (i) Determine that the proposed project will not have an adverse 
impact on military operations and readiness, in which case it shall 
notify the Secretary of Transportation of such determination.
    (ii) Determine that the proposed project may have an adverse impact 
on military operations and readiness. When the Clearinghouse makes such 
a determination it shall immediately--
    (A) Notify the applicant of the determination of the Clearinghouse 
and offer to discuss mitigation with the applicant to reduce the 
adverse impact;
    (B) Designate one or more DoD Components to engage in discussions 
with the applicant to attempt to mitigate the adverse impact;
    (C) Notify the Secretary of Transportation that the Department of 
Defense has determined that the proposed project may have an adverse 
impact on military operations and readiness, and, if the cause of the 
adverse impact is due to the proposed project exceeding an obstruction 
standard set forth in subpart C of part 77 of title 14 of the Code of 
Federal Regulations, identify the specific standard and how it would be 
exceeded; and
    (D) Notify the Secretary of Transportation and the Secretary of 
Homeland Security that the Clearinghouse has offered to engage in 
mitigation discussions with the applicant.
    (4) The applicant must provide to the Clearinghouse its agreement 
to discuss the possibility of mitigation within five days of receipt of 
the notification from the Clearinghouse.
    (b) If the applicant agrees to enter into discussions with the DoD 
to seek to mitigate an adverse impact, the designated DoD Components 
shall engage in discussions with the applicant to attempt to reach 
agreement on measures that would mitigate the adverse impact of the 
proposed project on military operations and readiness. The 
Clearinghouse shall invite the Administrator of the Federal Aviation 
Administration and the Secretary of Homeland Security to participate in 
such discussions.
    (1) Such discussions shall not extend more than 90 days beyond the 
initial notification to the applicant, unless both the designated DoD 
Components and the applicant agree, in writing, to an extension of a 
specific period of time.
    (i) If agreement between the applicant and the designated DoD 
Components has not been reached on mitigation measures by that time and 
no extension has been mutually agreed to, the designated DoD Components 
shall notify the Clearinghouse of the results of the discussions and 
the analysis and recommendations of the Components with regard to the 
proposed project as it is proposed after discussions.
    (ii) If agreement between the applicant and the designated DoD 
Components has been reached on mitigation measures that remove the 
adverse impact of the proposed project on military operations and 
readiness, the DoD Components shall notify the Clearinghouse of the 
agreement and the applicant shall notify the Secretary of

[[Page 65117]]

Transportation of such agreement and amend its application accordingly.
    (2) If the applicant and the designated DoD Components are unable 
to reach agreement on mitigation, the Clearinghouse shall review the 
analysis and recommendations of the DoD Components and determine if the 
proposed project as it may have been modified by the applicant after 
discussions would result in an unacceptable risk to the national 
security of the United States.
    (i) If the Clearinghouse determines that the proposed project as it 
may have been modified by the applicant after discussions would result 
in an unacceptable risk to the national security of the United States, 
it shall make a recommendation to the senior official to that effect. 
If the Clearinghouse determines, contrary to the recommendations of the 
DoD Components, that the proposed project as it may have been modified 
by the applicant after discussions would not result in an unacceptable 
risk to the national security of the United States, it shall make a 
recommendation to the senior official to that effect.
    (ii) If the senior official concurs with the recommendation of the 
Clearinghouse, the senior official shall make a recommendation to the 
senior officer that is consistent with the recommendation of the 
Clearinghouse. If the senior official does not agree with the 
recommendation of the Clearinghouse, the senior official may make a 
recommendation to the senior officer to that effect.
    (iii) The senior officer shall consider the recommendation of the 
senior official, and, after giving full consideration to mitigation 
actions available to the DoD and those agreed to by the applicant, 
determine whether the proposed project as it may have been modified by 
the applicant would result in an unacceptable risk to the national 
security of the United States. If the senior officer makes such a 
determination, the senior officer shall convey that determination to 
the Secretary of Transportation, identifying which of the three 
criteria in section 211.3(l) creates the unacceptable risk to the 
national security of the United States.
    (iv) Any mitigation discussions engaged in by the Department of 
Defense pursuant to this part shall not be binding upon any other 
Federal agency, nor waive required compliance with any other law or 
regulation.
    (c)(1) If the applicant does not agree to enter into discussions 
with the DoD to seek to mitigate an adverse impact, the Clearinghouse 
shall review the analysis and recommendations of the designated DoD 
Components and determine if the proposed project would result in an 
unacceptable risk to the national security of the United States. If the 
Clearinghouse determines that the proposed project would result in an 
unacceptable risk to the national security of the United States, it 
shall make a recommendation to the senior official to that effect. If 
the Clearinghouse determines, contrary to the recommendations of the 
DoD Components, that the proposed project would not result in an 
unacceptable risk to the national security of the United States, it 
shall make a recommendation to the senior official to that effect.
    (2) If the senior official concurs with the recommendation of the 
Clearinghouse, the senior official shall make a recommendation to the 
senior officer that is consistent with the recommendation of the 
Clearinghouse. If the senior official does not agree with the 
recommendation of the Clearinghouse, the senior official may make a 
recommendation to the senior officer to that effect.
    (3) The senior officer shall consider the recommendation of the 
senior official, and, after giving full consideration to mitigation 
actions available to the DoD and those agreed to by the applicant, 
determine whether the proposed project would result in an unacceptable 
risk to the national security of the United States. If the senior 
officer makes such a determination, the senior officer shall convey 
that determination to the Secretary of Transportation, identifying 
which of the three criteria in section 211.3(l) creates the 
unacceptable risk to the national security of the United States.
    (d) The Clearinghouse may, on behalf of itself, the senior 
official, or the senior officer, seek an extension of time from the 
Secretary of Transportation for consideration of the application.

Sec.  211.7  Initiating an Informal DoD Review of a Proposed Project.

    (a) An informal review of a project begins with the receipt from a 
requester by the Clearinghouse of a request for an informal review. In 
seeking an informal review, the requester shall provide the following 
information to the Clearinghouse:
    (1) The geographic location of the project including its latitude 
and longitude; and
    (2) The nature of the project.
    (3) The requester is encouraged to provide as much additional 
information as is available. The more information provided by the 
requester, the greater will be the accuracy and reliability of the 
resulting DoD review.
    (b) The Clearinghouse shall, within five days of receiving the 
information provided by the requestor, convey that information to those 
DoD Components it believes may have an interest in reviewing the 
request.
    (1) The DoD Components that receive the request from the 
Clearinghouse shall provide their comments and recommendations on the 
request to the Clearinghouse no later than 30 days after they receive 
the request.
    (2) Not later than 50 days after receiving the request from the 
requester, the Clearinghouse shall evaluate all comments and 
recommendations received and take one of two actions:
    (i) Determine that the project will not have an adverse impact on 
military operations and readiness, in which case it shall notify the 
requester of such determination. In doing so, the Clearinghouse shall 
also advise the requester that the informal review by the DoD does not 
constitute an action under 49 U.S.C. 44718 and that neither the DoD nor 
the Secretary of Transportation are bound by the determination made 
under the informal review.
    (ii) Determine that the project will have an adverse impact on 
military operations and readiness.
    (A) When the requester is the project proponent and the 
Clearinghouse makes such a determination, the Clearinghouse shall 
immediately--
    (1) Notify the requester of the determination and the reasons for 
the conclusion of the Clearinghouse and advise the requester that the 
DoD would like to discuss the possibility of mitigation to reduce any 
adverse impact; and
    (2) Designate one or more DoD Components to engage in discussions 
with the requester to attempt to mitigate the adverse impact.
    (B) When the requester is a state or local official, notify the 
requester of the determination of the Clearinghouse and the reasons for 
that conclusion.
    (c) If the requester is the project proponent and agrees to enter 
into discussions with the DoD to seek to mitigate an adverse impact, 
the designated DoD Components shall engage in discussions with the 
requester in an attempt to reach agreement on measures that would 
mitigate the adverse impact of the project on military operations and 
readiness.

Sec.  211.8  Inquiries Received by DoD Components.

    (a) An inquiry received by a DoD Component other than the

[[Page 65118]]

Clearinghouse relating to an application filed with the Secretary of 
Transportation pursuant to 49 U.S.C. 44718 shall be forwarded to the 
Clearinghouse by the DoD Component except when that DoD Component has 
been designated by the Clearinghouse to engage in discussions with the 
entity making the inquiry.
    (b) A request for informal DoD review or any other inquiry related 
to matters covered by this part and received by a DoD Component other 
than the Clearinghouse shall be forwarded to the Clearinghouse by that 
Component except when that DoD Component has been designated by the 
Clearinghouse to engage in discussions with the entity making the 
request.

Sec.  211.9  Mitigation Options.

    (a) In discussing mitigation to avoid an unacceptable risk to the 
national security of the United States, the DoD Components designated 
to discuss mitigation with an applicant or requester shall, as 
appropriate and as time allows, analyze the following types of DoD 
mitigation to determine if they identify feasible and affordable 
actions that may be taken to mitigate adverse impacts of projects on 
military operations and readiness:
    (1) Modifications to military operations.
    (2) Modifications to radars or other items of military equipment.
    (3) Modifications to military test and evaluation activities, 
military training routes, or military training procedures.
    (4) Providing upgrades or modifications to existing systems or 
procedures.
    (5) The acquisition of new systems by the DoD and other departments 
and agencies of the Federal Government.
    (b) In discussing mitigation to avoid an unacceptable risk to the 
national security of the United States, the applicant or requester, as 
the case may be, should consider the following possible actions:
    (1) Modification of the proposed structure, operating 
characteristics, or the equipment in the proposed project.
    (2) Changing the location of the proposed project.
    (3) Providing a voluntary contribution of funds to offset the cost 
of measures undertaken by the Secretary of Defense to mitigate adverse 
impacts of the project on military operations and readiness.

Sec.  211.10  Reporting Determinations to Congress.

    (a) Not later than 30 days after making a determination of 
unacceptable risk pursuant to section 211.6, the senior officer shall 
submit to the congressional defense committees a report on such 
determination and the basis for such determination.
    (b) Such a report shall include--
    (1) An explanation of the operational impact that led to the 
determination.
    (2) A discussion of the mitigation options considered.
    (3) An explanation of why the mitigation options were not feasible 
or did not resolve the conflict.

Subpart D--Communications and Outreach

Sec.  211.11  Communications With the Clearinghouse.

    All communications to the Clearinghouse by applicants, requesters, 
or members of the public should be addressed to:
    Executive Director, DoD Siting Clearinghouse, Office of the Deputy 
Under Secretary of Defense (Installations and Environment), Room 5C646, 
3400 Defense Pentagon, Washington, DC 20301-3400 or to such internet 
address as the Clearinghouse may provide.

Sec.  211.12  Public Outreach.

    (a) The DoD shall establish a Web site accessible to the public 
that--
    (1) Lists the applications and requests for informal review the DoD 
is currently considering.
    (2) Identifies the stage of the action, e.g., preliminary review, 
referred for mitigation discussions, determined to be an unacceptable 
risk.
    (3) Indicates how the public may provide comments.
    (b) The Clearinghouse shall publish a handbook to provide 
applicants, requesters, and members of the public with necessary 
information to assist them in participating in the Mission 
Compatibility Evaluation Process.

    Dated: October 12, 2011.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-26987 Filed 10-19-11; 8:45 am]
BILLING CODE 5001-06-P
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