Relocation of and Spectrum Sharing by Federal Government Stations-Technical Panel and Dispute Resolution Board, 41956-41966 [2012-17112]

Agencies

• DEPARTMENT OF COMMERCE
• National Telecommunications and Information Administration

[Federal Register Volume 77, Number 137 (Tuesday, July 17, 2012)]
[Proposed Rules]
[Pages 41956-41966]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17112]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

47 CFR Part 301

[Docket No. 110627357-2209-03]
RIN 0660-AA26


Relocation of and Spectrum Sharing by Federal Government 
Stations--Technical Panel and Dispute Resolution Board

AGENCY: National Telecommunications and Information Administration, 
Commerce.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Telecommunications and Information Administration 
(NTIA) proposes to adopt regulations governing the Technical Panel and 
dispute resolution boards established by Congress to facilitate the 
relocation of, and spectrum sharing with, U.S. Government stations in 
spectrum bands reallocated from Federal use to non-Federal use or to 
shared use. This action is necessary to ensure the timely relocation of 
Federal entities' spectrum-related operations and, where applicable, 
the timely implementation of arrangements for the sharing of radio 
frequencies. Specifically, this action would implement certain 
additions and modifications to the NTIA Organization Act through the 
recent enactment of the Middle Class Tax Relief and Job Creation Act of 
2012.

DATES: Submit comments on or before August 1, 2012.

ADDRESSES: The public is invited to submit written comments in paper or 
electronic form. Written comments may be submitted by email to 
CSEAchanges@ntia.doc.gov.
    Comments submitted by email should be machine searchable and should 
not be copy-protected. Written comments also may be submitted by mail 
to Milton Brown, Office of Chief Counsel, National Telecommunications 
and Information Administration, U.S. Department of Commerce, Herbert C. 
Hoover Building, 1401 Constitution Avenue NW., Room 4713, Washington, 
DC 20230. Each commenter should include the name of the person or 
organization filing the comment as well as a page number on each page 
of the submission. All comments received will be made a part of the 
public record in this proceeding and will be posted to NTIA's Web site 
(https://www.ntia.doc.gov) without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Milton Brown, NTIA, (202) 482-1816.

SUPPLEMENTARY INFORMATION:

    Authority:  National Telecommunications and Information 
Administration Organization Act, 47 U.S.C. 901 et seq., as amended 
by the Middle Class Tax Relief and Job Creation Act of 2012, Public 
Law 112-96, Title VI, Subtitle G, 126 Stat. 245 (Feb. 22, 2012) (47 
U.S.C. 923(g)-(i), 928).

I. Introduction

    To maintain America's leadership in technological innovation and 
promote economic growth, President Obama unveiled an initiative 
(Spectrum Initiative) in 2010 to reform spectrum policy and improve 
America's wireless infrastructure.\1\ The broad vision outlined in the 
President's Spectrum Initiative is to attract public and private sector 
investment in emerging wireless broadband services and to promote the 
more efficient use of spectrum. One of the key themes of the 
President's Spectrum Initiative is the need for the U.S. Government to 
develop new tools and provide new incentives to free up spectrum from 
both Federal Government users and non-Federal licensees.\2\ To that 
end, the Administration supported much-needed changes to the Commercial 
Spectrum

[[Page 41957]]

Enhancement Act (CSEA) to provide additional incentives for Federal 
users.\3\
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    \1\ Presidential Memorandum: Unleashing the Wireless Broadband 
Revolution, 75 FR 38387 (June 28, 2010), available at https://www.whitehouse.gov/the-press-office/presidential-memorandum-unleashing-wireless-broadband-revolution.
    \2\ Id.; see Plan and Timetable to Make Available 500 Megahertz 
of Spectrum for Wireless Broadband (Ten-Year Plan) at 16-17 (Oct. 
29, 2010), available at https://www.ntia.doc.gov/files/ntia/publications/tenyearplan_11152010.pdf.
    \3\ Commercial Spectrum Enhancement Act (CSEA), Public Law 108-
494, sections 201-209, 118 Stat. 3986 (codified at 47 U.S.C. 923, 
928). The CSEA amended the NTIA Organization Act to provide, among 
other things, for the costs associated with relocation of Federal 
agencies' spectrum-dependent operations to be reimbursed from the 
proceeds of spectrum auctions held by the Federal Communications 
Commission (FCC).
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    Consistent with this goal, the Middle Class Tax Relief and Job 
Creation Act of 2012 (Tax Relief Act) amended the CSEA to expand the 
types of costs for which Federal agencies can be reimbursed from the 
Spectrum Relocation Fund (Fund).\4\ Among other things, the changes 
made by the Tax Relief Act now permit Federal agencies to receive funds 
for costs associated with the planning for Federal Communications 
Commission (FCC) auctions and relocations, spectrum sharing, the use of 
alternative technologies, the replacement of existing government-owned 
equipment with state-of-the-art systems, and the research, engineering 
studies and economic analyses conducted in connection with spectrum 
sharing arrangements, including coordination with auction winners.\5\ 
Other improvements in the new law are aimed at facilitating better 
transparency, coordination, and predictability for bidders in FCC 
spectrum auctions and the ultimate winners of those auctions through, 
for example, a new requirement that NTIA publish agencies' spectrum 
transition plans on NTIA's Web site at least 120 days before the 
commencement of the corresponding FCC auction, with the exception of 
classified information.\6\
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    \4\ Middle Class Tax Relief and Jobs Creation Act of 2012 (Tax 
Relief Act), Public Law 112-96, sections 6701-6703, 126 Stat. 245 
(Feb. 22, 2012) (amending, among other provisions, sections 113(g)-
(i) and 118 of the NTIA Organization Act). Statutory references 
hereinafter will refer to sections of the NTIA Organization Act, 47 
U.S.C. 901 et seq., also referred to generally as ``the statute,'' 
unless otherwise indicated.
    \5\ See NTIA Organization Act section 113(g)(3) (defining the 
relocation or sharing costs permitted).
    \6\ See id. at section 113(h)(5)-(6).
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    Most pertinent to the purpose of this Notice, the Tax Relief Act: 
(1) Specified the content of transition plans, following a ``common 
format,'' for Federal agencies seeking compensation from the Fund for 
their spectrum relocation or sharing costs, including pre-auction 
costs; (2) established a mechanism to review the sufficiency of such 
plans by an expert Technical Panel; and (3) created a dispute 
resolution process through which any disagreements that may arise over 
the execution, timing, or cost of transition plans can be resolved 
within 30 days after the request was made to NTIA.\7\ This action 
proposes regulations to govern the operation of the Technical Panel 
established by the Tax Relief Act and the workings of any dispute 
resolution boards that would be called on to adjudicate disputes, 
should any arise, between non-Federal users and Federal entities during 
the transition period.
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    \7\ See id. at sections 113(h)(2), (h)(3), (i), 118(d)(3). 
Another new provision NTIA is implementing separately relates to the 
consideration and protection of classified and other sensitive 
information contained in agency transition plans. See id. at section 
113(h)(7).
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II. Background

    In connection with the new agency transition plans required by the 
Tax Relief Act, new deadlines tied to the FCC's auction start date are 
imposed upon Federal agencies anticipating transfers from the Fund, 
upon NTIA, and upon the new Technical Panel. These new, pre-auction 
deadlines include the following:
    (1) Federal entities authorized to use eligible frequencies must 
submit a transition plan ``for the implementation by such entity of the 
relocation or sharing arrangement'' to NTIA and the Technical Panel no 
later than 240 days (i.e., eight months) prior to the auction start 
date \8\;
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    \8\ Id. at section 113(h)(1).
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    (2) The Technical Panel must submit to NTIA and to the applying 
Federal entity a report on the sufficiency of the transition plan no 
later than 30 days after the submission of the plan (i.e., seven 
months, or 210 days, prior to the auction start date) \9\; and
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    \9\ Id. at section 113(h)(4)(A).
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    (3) NTIA must make the transition plans publicly available on its 
Web site, with the exception of classified information, no later than 
120 days (i.e., four months) before the auction start date.\10\
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    \10\ Id. at section 113(h)(5).

In Section III.B. below, NTIA addresses the impact on these deadlines 
in the event the Technical Panel determines that an agency's transition 
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plan is ``insufficient.''

    Each agency transition plan must include the information called for 
by paragraph (h)(2) of section 113 of the NTIA Organization Act, as 
well as other related provisions.\11\ In particular, each plan must 
contain basic operational and technical data, including: (1) The 
current use by the Federal entity of the eligible frequencies to be 
auctioned; (2) the geographic location of the Federal entity's 
facilities or systems; and (3) the frequency bands used by such 
facilities or systems.\12\ The plan must also set forth the ``steps to 
be taken by the Federal entity to relocate its spectrum use from such 
frequencies or to share such frequencies, including timelines for 
specific geographic locations in sufficient detail to indicate when use 
of such frequencies at such locations will be discontinued by the 
Federal entity or shared between the Federal entity and non-Federal 
users.'' \13\ It will provide the name of the officer or employee from 
each agency who is responsible for relocation or sharing efforts and 
who is authorized to meet and negotiate with non-Federal users 
regarding the transition.\14\
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    \11\ Id. at section 113(h)(2); see also id. at section 
118(d)(3)(B)(ii).
    \12\ Id. at section 113(h)(2)(A)-(C).
    \13\ Id. at section 113(h)(2)(D).
    \14\ Id. at section 113(h)(2)(F).
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    In addition, each transition plan must describe the agency's 
specific plans and timelines for using the amounts from the Fund for 
procuring, testing, and deploying new equipment and for covering the 
broad range of other allowable relocation or sharing costs to be 
incurred to achieve ``comparable capability of systems as before the 
relocation or sharing arrangement.'' \15\ The plan must also identify 
any factors that could ``hinder fulfillment of the transition plan,'' 
\16\ such as the extent to which any classified information will affect 
``the implementation of the relocation or sharing arrangement.'' \17\
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    \15\ Id. at section 113(h)(2)(G), (g)(3). Under the statute, 
``comparable capability of systems'' may be achieved by several 
means, including but not limited to the following: (1) Relocation of 
a Federal Government station to a new frequency assignment or to a 
different geographic location; (2) modification of equipment to 
mitigate interference or use less spectrum to enable spectrum 
sharing among Federal entities; and (3) utilizing ``alternative 
technology'' and ``state-of-the-art replacement systems intended to 
meet comparable operational scope, which may include incidental 
increases in functionality.'' Id. at section 113(g)(3)(B).
    \16\ Id. at section 113(h)(2)(H).
    \17\ Id. at Sec.  113(h)(7)(A).
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    For any Federal entity seeking payments for certain pre-auction 
costs, its transition plan must also provide for sharing, coordination, 
and reasonable accommodations for the use of eligible frequencies by 
non-Federal users during the transition period.\18\ A plan identifying 
pre-auction costs must also provide that (1) the eligible Federal 
entity will, during the transition period, make itself available for 
negotiation and

[[Page 41958]]

discussion with non-Federal users; and that (2) the eligible Federal 
entity will assist the non-Federal user during the transition period by 
making available relevant classified information to those with 
appropriate security clearances.\19\
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    \18\ Id. at section 118(d)(3)(B)(ii)(I). The ``transition 
period'' under this clause refers to the period over which the 
Federal entity is ``relocating its spectrum uses.'' Id. These 
qualified pre-auction costs include research, engineering studies, 
economic analyses or other planning expenses. Id. at section 
113(g)(3)(A)(iii).
    \19\ Id. at section 118(d)(3)(B)(ii)(II)-(III).
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III. Discussion

    Pursuant to new paragraphs (h)(3)(D) and (i)(8) of section 113 of 
the NTIA Organization Act, NTIA seeks comment on these proposed 
regulations. These proposed regulations would govern the operation of 
the Technical Panel established by the Tax Relief Act and the workings 
of any dispute resolution boards. NTIA's implementation of the relevant 
stipulations of the CSEA, as amended by the Tax Relief Act, is aimed at 
ensuring that (1) NTIA can reliably and accurately compile and report 
estimated relocation costs and timelines; (2) agencies are adequately 
compensated for all qualified costs and incentivized to plan 
accordingly; and (3) to provide as much clarity as possible in the 
transition plans so prospective and winning bidders can depend on the 
available information to reduce risk and uncertainty at FCC auctions 
and when licensees are deploying new systems or leasing the spectrum 
while ensuring that Federal agencies are given the necessary time to 
transition as not to compromise their critical operations.
    NTIA proposes to restore Part 301 of its regulations, which is 
currently reserved, in Chapter III of the Code of Federal Regulations 
(CFR).\20\ The proposed rules are organized into three subparts. 
Subpart A would set forth the overall purpose for the new regulations, 
include a cross-reference for informational purposes, and define 
certain terminology used throughout the regulation. Subpart B would 
contain the regulations governing the operations of the Technical Panel 
established by the Tax Relief Act. Finally, Subpart C would provide a 
basic framework under which fair and rapid resolution of any disputes 
may take place.
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    \20\ NTIA promulgated a previous version of Part 301 in 2002, 
which governed the reimbursement to Federal entities by the private 
sector as a result of reallocation of Federal spectrum bands. See 
Mandatory Reimbursement Rules for Frequency Band or Geographic 
Relocation of Federal Spectrum-Dependent Systems, 67 FR 41182 (June 
17, 2002); see Repeal of Mandatory Reimbursement Rules for Frequency 
Band or Geographic Relocation of Federal Spectrum-Dependent Systems, 
70 FR 6776 (Feb. 9, 2005).
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A. Purpose, Cross-Reference to NTIA Manual and Definitions

    Subpart A of the proposed rules would state that the purpose of 
Part 301 is to implement the particular statutory provisions that 
mandate the adoption of such regulations, after public notice and 
comment, including the regulations proposed herein governing Technical 
Panels and dispute resolution boards. This subpart would also include a 
cross-reference to Sec.  300.1 of NTIA's current rules, which in turn 
incorporates by reference the ``Manual of Regulations and Procedures 
for Federal Radio Frequency Management,'' also known as the ``NTIA 
Manual'' or the ``Redbook.'' The NTIA Manual governs the Federal 
agencies' use of the radio frequency spectrum and NTIA's regulation 
thereof pursuant to the NTIA Organization Act.\21\ This cross-reference 
is intended for informational purposes because the NTIA Manual applies 
only to Federal agencies.
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    \21\ See 47 CFR 300.1 (2011); see also NTIA Organization Act 
Sec.  102(b)(2)(A) (47 U.S.C. 902(b)(2)(A)). The NTIA Manual is the 
compilation of policies and procedures that govern the use of the 
radio frequency spectrum by the U.S. Government. Federal government 
agencies are required to follow these policies and procedures in 
their use of the spectrum. The NTIA Manual is available online at 
https://www.ntia.doc.gov/osmhome/redbook/redbook.html.
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    NTIA, in consultation with the Interdepartment Radio Advisory 
Committee (IRAC) and the Policy and Plans Steering Group (PPSG), is 
revising Annex O of the NTIA Manual to implement the changes to the 
CSEA from the Tax Relief Act.\22\ The revisions to Annex O will 
implement, for example, the relevant provisions related to the contents 
of agency transition plans, and the publication and protection 
thereof.\23\ Annex O will specify the procedures and required content 
for agency Transition Plans based on the new statutory provisions so 
that the agencies will provide all relevant information and that 
information will be available to stakeholders according to the 
statutory requirements and timelines. As with the regulations proposed 
in this Notice, NTIA's objective in updating Annex O is to make sure 
that the information requested and provided is accurate and sufficient 
so that estimated costs and timelines will reduce risk and uncertainty 
throughout the auction and transition process while ensuring that 
Federal agencies' mission operations are not interrupted or otherwise 
adversely impacted during the transition.
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    \22\ The IRAC assists NTIA in assigning frequencies to U.S. 
Government radio stations and in developing and executing policies, 
programs, procedures, and technical criteria pertaining to the 
allocation, management, and use of the spectrum. It is made up of 
representatives appointed by their respective Federal departments 
and agencies. See https://www.ntia.doc.gov/category/irac. The PPSG is 
a high-level interagency group of senior Federal officials that was 
established to help NTIA resolve major spectrum policy issues that 
affect the use of spectrum by Federal and non-Federal users. See 
Ten-Year Plan, supra note 2 at Appendix A.
    \23\ See NTIA Organization Act at section 113(h)(2), (5), (7); 
see also id. at section 118(d)(3)(B)(ii) (stating additional 
information that must be in transition plans if Federal entity seeks 
transfers for pre-auction costs).
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    Section 301.20 of the regulations would include certain terminology 
used throughout Part 301. Most of the proposed definitions reflect the 
terminology in applicable statutory provisions. Slight nomenclature 
adjustments would be made for purposes of clarification or context. 
Additional proposed definitions are provided to give further clarity to 
the regulations in the other subparts. Where necessary, these terms are 
discussed below in connection with the particular rules in which they 
are used.

B. Technical Panel

    Overview. Subpart B of the proposed regulations would govern the 
operations of the Technical Panel established by the Tax Relief Act. 
Specifically, pursuant to the statute, these regulations would cover 
matters related to the membership, organization, and basic functions of 
the standing three-member panel.
    Membership. As required by the new law, the respective agency heads 
of NTIA, the FCC, and the Office of Management and Budget (OMB) will 
appoint the initial members of the Technical Panel not later than 
August 20, 2012.\24\ Each member serves a non-consecutive, 18-month 
term.\25\ The members must be either ``radio engineer[s]'' or 
``technical expert[s].'' \26\
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    \24\ Id. at section 113(h)(3)(B)(iii).
    \25\ Id. at section 113(h)(3)(B)(iv).
    \26\ Id. at section 113(h)(3)(B)(ii). Technical Panel members 
may not receive any additional compensation for service on the 
Technical Panel. Id. at section 113(h)(3)(B)(vi). If any member is 
also an employee of one of the respective appointing agencies, his 
or her regular compensation in that capacity is not considered 
compensation for service on the Technical Panel. Id.
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    NTIA proposes that the Assistant Secretary, in consultation with 
the OMB Director and the FCC Chairman, have the discretion to require 
additional qualifications for one or more members of the Technical 
Panel to ensure their timely appointment, committed service, and 
efficient dispatch of business. For example, depending on the nature of 
the Federal systems likely to be subject of agency transition plans, 
NTIA may require that the members have appropriate and up-to-date 
security clearances to enable access to any classified or sensitive 
information. In addition, NTIA proposes that the initial members of the 
panel, as well as subsequent members, be Federal

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employees, but not necessarily be employed by the appointing 
agency.\27\ The Chair of the Technical Panel would be the member 
appointed by the Assistant Secretary. NTIA seeks comment on these 
proposals.
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    \27\ If a member is employed by another agency, this individual 
would not likely be able to review the transition plans submitted by 
his or her own agency unless the heads of the other appointing 
agencies have no objections. See infra Section III.C. for a 
discussion of potential restrictions on membership eligibility for 
dispute resolution boards in certain situations involving current 
and former Technical Panel members.
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    Review of Transition Plans. The primary role of the Technical Panel 
is to review each Federal agency's transition plan and to deliver a 
report on its sufficiency to NTIA and the agency. As noted above, the 
panel's reports must be submitted within 30 days after an agency 
submits its plan. This statutory time frame provides a relatively short 
period for the panel to conduct its assessment. The deadline could 
present greater challenges if multiple Federal agencies are submitting 
transition plans covering multiple Federal systems at the same time. 
Accordingly, NTIA proposes measures in the regulations that would help 
meet the objectives set forth above while ensuring the timely and 
successful review of these plans. For example, NTIA seeks comment on 
whether the rules should confine the scope and content of the Technical 
Panel's initial report (and, if necessary, subsequent reports) to those 
assessments and findings most relevant to NTIA's ability to compile 
estimated relocation costs and timelines for purposes of the 
notifications required under the CSEA. As discussed next, these and 
other measures intended to assist in the preparation of the agency 
transition plans are necessary to avoid the potential procedural 
dilemma presented when the Technical Panel concludes that a plan is not 
sufficient.
    Meeting the pre-auction milestones set forth above assumes that (1) 
the Technical Panel finds that the initial transition plan is 
sufficient within 30 days; and (2) NTIA can reliably compile the 
estimated relocation and sharing costs and timelines for the 
notifications at the six-month point before an auction start date. 
However, under the statute, if the Technical Panel finds the plan 
insufficient, the applying Federal entity has up to 90 days to submit 
to the Technical Panel a revised plan.\28\ In turn, the Technical Panel 
would have another 30 days in which to determine whether the revised 
plan is sufficient.\29\ This additional 120-day (i.e., four-month) 
process following an ``insufficient'' plan could mean that such a 
plan's estimated costs and timelines may not be available or reliable 
enough to be included in the notifications to the FCC, Congress, and 
the Government Accountability Office, which are otherwise due 
approximately 30 days (i.e., one month) after the Technical Panel 
report on the initial transition plan is due to NTIA. Moreover, 
inasmuch as this additional time would potentially result in a revised 
plan being resubmitted to the Technical Panel four months before the 
auction start date, NTIA may not be able to publish the plan on its web 
site by the 120-day deadline set forth in the new law.\30\
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    \28\ NTIA Organization Act section 113(h)(4)(B).
    \29\ Id. (stating that ``[s]uch revised plan shall be treated as 
a plan submitted under paragraph (1),'' which suggests that the 
Technical Panel's 30-day deadline in subparagraph (4)(A) of section 
113(j)(h) would apply again pursuant to the similar cross-reference 
to ``the submission of the plan under paragraph (1)'').
    \30\ The new law does not specify whether NTIA must make 
available on the its Web site only a transition plan that is found 
sufficient by the Technical Panel. See id. at section 113(h)(5).
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    Under the circumstances discussed above in which the delay 
presented by the insufficient transition plan potentially puts at risk 
NTIA's ability to meet the two deadlines leading up to the FCC's 
auction start date, NTIA and the FCC could consider any number of 
options. Under one option, NTIA would provide the FCC a timely 
notification of the estimated costs and timelines on behalf of the 
Federal entities by submitting the information compiled from sufficient 
transition plans, but noting that information from insufficient plans 
are excluded. Alternatively, if an insufficiency finding would not 
substantially impact or impair the reliability and accuracy of NTIA's 
compilation of agency costs and timelines, then NTIA could still 
provide a timely notification with information from insufficient plans 
included. NTIA seeks comment on these options.
    Another option for dealing with this dilemma, especially if the 
panel's insufficiency finding would reduce the reliability of the 
estimated costs and timelines, is for NTIA to recommend that the FCC 
delay the auction start date until the agency can submit, and the 
Technical Panel can review, a revised transition plan. However, this 
alternative may not be feasible, especially in light of the statutory 
deadlines related to the auctions and licensing for particular spectrum 
bands identified in Subtitle D of the Tax Relief Act.\31\ NTIA intends 
to provide guidance to the Federal agencies in the revised Annex O of 
the NTIA Manual and through other assistance to help ensure that each 
initial plan is complete and contains ``reasonable'' timelines and 
estimated relocation or sharing costs. Although NTIA will be seeking 
public input on ``a common format for all Federal entities to follow in 
preparing transition plans'' in accordance with the new law, NTIA seeks 
comment on further steps that would help in ensuring the proper 
regulations are in place to govern the Technical Panel.\32\
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    \31\ Tax Relief Act section 6401(a)-(b).
    \32\ In addition to compiling estimated costs and timelines, 
NTIA expects that the transition plans' contents will provide 
valuable information to prospective bidders preparing for an 
auction, to winning bidders planning for their system deployments or 
leasing strategies, to NTIA in making its findings related to 
``comparable capability'' under section 113(g)(6) of the statute, 
and to OMB in determining the ``appropriateness'' of the costs and 
timelines pursuant to section 118(d)(2)(B) of the statute.
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    Technical Assistance to Dispute Resolution Boards. Finally, the new 
law requires the Technical Panel to furnish technical assistance to a 
dispute resolution board convened to resolve disputes among Federal and 
non-Federal parties. The proposed regulations would require that the 
Technical Panel provide such assistance upon request of any board 
convened pursuant to Subpart C of the regulations. NTIA notes, however, 
that circumstances may arise where effective implementation of the 
statute and resource constraints may result in the overlap among the 
current or former membership of the Technical Panel and a dispute 
resolution board. While NTIA proposes to restrict membership 
eligibility for dispute resolution boards in certain overlap 
situations, NTIA does not believe it is necessary to prevent any 
otherwise qualified person from serving on the Technical Panel. NTIA 
seeks comment on these proposals.

C. Dispute Resolution Boards

    Overview. Subpart C of the proposed regulations would govern 
workings of any dispute resolution boards upon which parties would call 
to facilitate the resolution of disputes, should any arise, between 
non-Federal users and Federal entities during the transition period 
regarding the ``execution, timing, or cost'' of the Federal entity's 
transition plan. Pursuant to the new law, these regulations would cover 
matters related to the workings of a board, including the content of 
any request to establish a board, the associated procedures for 
convening it, and the dispute resolution process itself.
    Membership of a dispute resolution board shall be comprised of a 
representative of OMB, NTIA, and the

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FCC, each appointed by the head of his or her respective agency.\33\ 
According to the new law, the OMB representative serves as the Chair of 
any board.\34\ With respect to the resolution of any such disputes that 
may arise, the statute (and the proposed rules) require a board to 
``meet simultaneously with representatives of the Federal entity and 
the non-Federal user to discuss the dispute.'' \35\ A board is required 
to rule on the dispute within 30 days after a party has requested NTIA 
to convene a board.\36\
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    \33\ NTIA Organization Act section 113(i)(2)(B).
    \34\ Id. at section 113(i)(2)(C). Board members are prohibited 
from receiving compensation for their service on a board other than 
their regular compensation as Federal employees. Id. at section 
113(i)(2)(E).
    \35\ Id. at section 113(i)(3). A board may require the parties 
to make written submissions to it. Id.
    \36\ Id. at section 113(i)(4). A board shall terminate after it 
rules on the dispute and the time for appeal (30 days) has expired. 
Id. at section 113(i)(2)(F). If a board's decision is appealed, the 
board will terminate after the appeal process has been exhausted and 
the board has completed any action required by a court hearing the 
appeal. Id.
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    In light of the tight statutory deadline for resolving any 
disputes, as well as NTIA's general obligation to ensure timely 
relocations and implementation of sharing arrangements, NTIA proposes a 
streamlined, practical approach to process legitimate dispute 
resolution requests, to set up dispute resolution boards, and to 
facilitate the resolution of any dispute as quickly as possible.
    Eligibility. As noted above, the statute provides that either a 
``Federal entity'' or a ``non-Federal user'' engaged in a dispute over 
the Federal entity's Transition Plan may request the establishment of a 
dispute resolution board. NTIA proposes to define these terms in the 
regulations. Section 113(l) of the NTIA Organization Act already 
defines the term ``Federal entity'' as any ``department, agency, or 
other instrumentality of the Federal Government that utilizes a 
Government station license obtained under section 305 of the 
[Communications Act of 1934, as amended (47 U.S.C. 305)].'' \37\ NTIA's 
proposed regulation incorporates that definition. However, there is no 
statutory definition of ``non-Federal user.'' NTIA proposes to define 
this term as ``a Commission licensee authorized to use eligible 
frequencies or a winning bidder in a Commission auction for eligible 
frequencies that has fulfilled the Commission's requirements for filing 
a long-form license application and remitting its final bid payment.''
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    \37\ Id. at section 113(l).
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    For both non-Federal and Federal requests, the proposed rules would 
require that the requests explain how the dispute pertains to the 
execution, timing, or cost of the Federal entity's particular 
transition plan that is associated with the non-Federal user's new 
license(s) won at auction or authorization to use eligible frequencies. 
For any non-Federal party bringing a dispute, NTIA proposes that its 
request clearly demonstrate, at a minimum, that the entity is a winning 
bidder at an FCC auction involving the frequencies at issue in the 
dispute. NTIA notes that the FCC announces a list of winning bidders 
via a Public Notice subsequent to the end of each FCC auction. 
Accordingly, a self-certification from the non-Federal entity is 
sufficient. NTIA seeks comment on these proposals.
    Informal and Alternative Dispute Resolution Efforts. The statute's 
30-day deadline for responding to formal dispute resolution requests 
will likely impact a board's ability to convene, meet with the parties, 
and adequately address complex cases. At the same time, however, the 
statute encourages cooperation to assure timely transitions between 
Federal and non-Federal use of the spectrum. For example, the 
transition plans to be reviewed by the Technical Panel and published by 
NTIA on its Web site will set forth ``[t]he name of the officer or 
employee of the Federal entity who is responsible for the relocation or 
sharing efforts of the entity and who is authorized to meet and 
negotiate with non-Federal users regarding the transition.'' \38\ In 
addition, where pre-auction costs are involved, the plans must provide 
that the Federal entity ``will, during the transition period, make 
itself available for negotiation and discussion with non-Federal users 
not later than 30 days after a written request therefor'' and ``make 
available to a non-Federal user with appropriate security clearances 
any classified information * * * , on a need-to-know basis, to assist 
the non-Federal user in the [transition] process with such eligible 
Federal entity or other eligible Federal entities.'' \39\
---------------------------------------------------------------------------

    \38\ Id. at section 113(h)(2)(F).
    \39\ Id. at section 118(d)(3)(B)(ii)(III), (IV).
---------------------------------------------------------------------------

    Given the incentives created by the new law, NTIA expects only a 
minimal number of serious conflicts to arise, if any. If such 
differences do surface, however, NTIA expects the parties to make good 
faith efforts to solve these problems.\40\ Accordingly, NTIA proposes 
that any disputes arising out of the execution, timing, or cost of a 
transition plan must be raised, in the first instance, with the 
officers or employees of the other party identified as being 
responsible for relocation or sharing efforts and who are authorized to 
meet and negotiate regarding the transition. NTIA further proposes that 
any such request must include a summary of the parties' prior efforts 
and attempts to resolve the dispute. NTIA seeks comment on these 
proposals.
---------------------------------------------------------------------------

    \40\ To the extent that such disputes cannot be resolved by the 
parties on an informal basis or through good faith negotiation, NTIA 
would strongly encourage the parties to use expedited alternative 
dispute resolution procedures, such as non-binding arbitration or 
mediation, before submitting a written request to establish a 
dispute resolution board. The Administrative Dispute Resolution Act, 
as amended, was enacted to authorize and encourage the use of 
alternative means of dispute resolution by Federal agencies. 
Congress recognized that the use of prompt and informal methods of 
dispute resolution, such as conciliation, mediation and arbitration, 
yields significant cost-savings and efficiencies, among other 
advantages, and results in outcomes that are more stable and less 
contentious and tailored to meet the particular needs of the 
parties. See Administrative Dispute Resolution Act, Public Law 101-
552, 104 Stat. 2736 (1990), amended by Public Law 104-320, 110 Stat. 
3870 (1996) (codified at 5 U.S.C. 571 et seq. (2011)).
---------------------------------------------------------------------------

    Other Contents of Dispute Resolution Requests. NTIA also proposes 
that dispute resolution requests provide sufficient information to 
enable a fair and timely decision by a dispute resolution board. This 
information would include, for example, a concise and specific 
statement of the factual allegations sufficient to support the relief 
or action requested. The requests would also include the requestor's 
contact information and a certificate of service showing to whom and 
when an identical copy of the request was provided to the other entity. 
Finally, NTIA also believes that it would further expedite resolution 
of the matter if the requester provides a meeting proposal, setting 
forth a proposed date, time, and place (including suggested 
alternatives) for a meeting with the other party and the board, if 
established, and has proposed requiring meeting proposals be part of 
the requests. NTIA seeks comment on these proposals as well as the 
other provisions set forth in Sec.  301.200 of the proposed rules.
    Establishment of the Dispute Resolution Board. The accelerated 
deadlines set forth in the new law require NTIA to establish dispute 
resolution boards quickly in order to make a recommendation not later 
than 30 days after the request was made to NTIA. NTIA proposes to 
create a slate of qualified representatives from each of the respective 
agencies well in advance of the likely submission of any request to 
convene a board and to maintain this candidate pool throughout the 
transition process. NTIA notes that, unlike the Technical Panel members 
discussed above, the statute does not contain any

[[Page 41961]]

specific qualifications for members of a dispute resolution board. 
Nevertheless, NTIA proposes that the Assistant Secretary, in 
consultation with the OMB Director and the FCC Chairman, have the 
discretion to require certain minimal qualifications for one or more 
members of a particular dispute resolution panel, or for the slate of 
representatives generally, to facilitate their timely appointment, 
effective service, and capable dispute resolution. For example, these 
qualifications could include certain levels and types of security 
clearance and expertise. NTIA also proposes that the slate of potential 
board members be composed of only Federal employees, but notes that an 
individual representative on each board need not necessarily be 
employed by the appointing agency.
    As discussed above, there may be overlap among the current or 
former membership of the Technical Panel and a dispute resolution 
board. NTIA proposes to restrict membership eligibility for boards in 
certain limited circumstances that present a potential conflict of 
interest, especially in a dispute involving specific parties where a 
board member candidate previously served as a member the Technical 
Panel that reviewed the particular transition plan that is the subject 
of the dispute. NTIA seeks comment on these proposals.
    Dispute Resolution Process and Decision. If and when NTIA receives 
a formal request to convene a dispute resolution board, it will 
immediately notify three available members from the slate of eligible 
representatives from each appointing agency to establish a board. 
Taking into account the meeting proposal submitted with the request, 
the Chair of the board (i.e., the OMB representative) will call a 
meeting of the board to be held, pursuant to the statute, 
simultaneously with representatives of the parties to the dispute. 
These meetings may be via teleconference or other electronic means. The 
board may require the parties to provide any additional written 
materials and may request technical assistance, as necessary, from the 
Technical Panel. Although the new law requires the board to rule on the 
dispute not later than 30 days from the date the request was received, 
NTIA proposes to permit the parties and board to mutually agree under 
certain circumstances to extend this period for a specified number of 
days.
    The scope of a dispute resolution request and, consequently, a 
board's decision, is limited by the statute to matters ``regarding the 
execution, timing, or cost of the transition plan submitted by the 
Federal entity.'' \41\ Consistent with this condition, the proposed 
rules would require that the board's ruling be based only on the record 
before it, including any input from the Technical Panel and other 
material of which it may take official notice. NTIA also seeks comment 
on whether a board's assessment of the execution, timing, and costs of 
the plan must be based on a ``reasonableness'' standard similar to the 
provisions applicable to the Technical Panel's standard of review.\42\ 
Because the new law does not confer independent authority on the board 
to bind the parties, NTIA proposes that the board's decision take the 
form of specific written recommendations to NTIA, OMB, the Commission, 
or the parties, as applicable, to take the suitable steps or remedial 
actions related to the execution, timing, or cost of the Federal 
entity's transition plan. Accordingly, NTIA seeks comment on these 
proposals.
---------------------------------------------------------------------------

    \41\ See NTIA Organization Act section 113(i)(1).
    \42\ See id. section 113(h)(4)(A).
---------------------------------------------------------------------------

    We note that the Act provides that decisions of the dispute 
resolution board may be appealed to the United States Court of Appeals 
for the District of Columbia Circuit.\43\
---------------------------------------------------------------------------

    \43\ Id. at section 113(i)(7).
---------------------------------------------------------------------------

Executive Order 12866

    This rule has been determined to be not significant under section 
3(f) of Executive Order 12866.

Executive Order 12372

    No intergovernmental consultation with State and local officials is 
required because this rule is not subject to the provisions of 
Executive Order 12372, Intergovernmental Consultation.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform, as amended by Executive Order 13175. NTIA has 
determined that the rule meets the applicable standards provided in 
section 3 of the Executive Order, to minimize litigation, eliminate 
ambiguity, and reduce burden.

Executive Order 13132

    This proposed rule does not contain policies having federalism 
implications requiring preparations of a Federalism Summary Impact 
Statement.

Executive Order 12630

    This proposed rule does not contain policies that have takings 
implications.

Administrative Procedure Act

    The Administrative Procedure Act requires NTIA to provide the 
public with advance notice and an opportunity to comment on all 
regulations. Generally, the comment period lasts at least thirty days. 
However, because of the statutory requirement to have implementing 
regulations in place no later than 180 days after enactment of the 
Middle Class Tax Relief and Job Creation Act of 2012, NTIA is offering 
the public a slightly shorter comment period of 15 days. NTIA is 
committed to allowing public comment, as required by the statute, and 
the shorter time period should allow sufficient time for review and 
comment on the regulations while maintaining the Act's schedule.

Regulatory Flexibility Act

    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The Regulatory Flexibility Act (RFA) requires Federal agencies to 
prepare an analysis of a rule's impact on small entities whenever the 
agency is required to publish a notice of proposed rulemaking. However, 
a Federal agency may certify, pursuant to 5 U.S.C. 605(b), that the 
action will not have a significant economic impact on a substantial 
number of small entities. For purposes of assessing the impact of a 
proposed rule on small entities, ``small entity'' is defined as: (1) A 
small business that meets the definition of a small business found in 
the Small Business Act and codified at 13 CFR 121.201; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school, district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field. Under regulations issued by the Small Business 
Administration (SBA), a determination of a ``small entity'' is based on 
the number of employees or the annual receipts. The type of entities 
that would be affected by these proposed regulations would be wireless 
telecommunications carriers who are winners of an FCC competitive 
bidding (auction) process. The winners would become licensees of radio 
frequency spectrum previously assigned to Federal entities. The SBA 
regulations provide that for a wireless telecommunications

[[Page 41962]]

carrier to be considered a small entity, it must have 1,500 employees 
or less.
    The proposed regulations outline the operation of a Technical Panel 
that is charged with reviewing a Federal agency's transition plan 
regarding the relocation or sharing of frequencies to be auctioned. The 
regulations also establish a dispute resolution process to resolve any 
disputes between the incumbent Federal entity and the wireless 
telecommunications carriers who are winners of an FCC competitive 
bidding (auction) process, or ``licensee.''
    It is difficult to determine the number of small entities that 
would be impacted by these proposed regulations. Census data for 2007 
shows that there were 1,383 wireless telecommunications carriers that 
operated in that year and that most of those firms would be considered 
small entities (fewer than 1,500 employees). Thus, a number of small 
entities may take part in an auction. It is, however, difficult to 
determine the number of entities that will be successful at an FCC 
auction that will occur at an undetermined date in the future. There is 
no way to predict the potential bidders at this time. In fact, entities 
that are not in existence at this time may participate once the FCC 
schedules an auction. The regulations proposed by NTIA in this rule 
would impact only those entities that are successful at an FCC auction. 
More importantly, the FCC will issue rules regarding the operation of 
these auctions and could more accurately address the impact that 
auction rules would have on small entities. The regulations proposed 
here, on the other hand, only provide guidance regarding the operation 
of a Technical Panel and a dispute resolution board composed of Federal 
employees. Even if NTIA could determine the number of small entities 
that would participate in an FCC auction, these proposed rules would 
not impose significant costs on those entities.
    To the extent that small entities are impacted at all by this 
proposed rule, it is unlikely that they would suffer any economic harm. 
To the contrary, these proposed regulations would benefit any entity, 
large or small. For example, these proposed regulations provide a 
dispute resolution process which is designed to resolve issues very 
quickly (30 days) so that licensee's can have timely access to the 
spectrum. By gaining timely access to spectrum, licensees have 
certainty with respect to business plans and the deployment of new 
services.

Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) does not apply to these proposed 
regulations because NTIA is not seeking information from 10 or more 
members of the Public (44 U.S.C. 3502(3), and because administrative 
proceeding such as the Technical Panel and the Dispute Resolution Board 
are exempt from the PRA, 44 U.S.C. 3518(c)(1).

Congressional Review Act

    This rule has not been determined to be major under the 
Congressional Review Act, 5 U.S.C. 801 et seq.

Unfunded Mandates

    This rule contains no Federal mandates (under the regulatory 
provision of Title II of the Unfunded Mandates Reform Act of 1995) for 
State, local, and tribal governments or the private sector. Thus, this 
rule is not subject to the requirements of sections 202 and 205 of the 
Unfunded Mandates Reform Act of 1995.

National Environmental Policy Act

    Because NTIA has determined that this rule does not constitute a 
major Federal action significantly affecting the quality of the human 
environment and in accordance with the National Environmental Policy 
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), an Environmental Impact 
Statement is not required.

Government Paperwork Elimination Act

    NTIA is committed to compliance with the Government Paperwork 
Elimination Act, which requires Government agencies to provide the 
public the option of submitting information or transacting business 
electronically to the maximum extent possible.

Lists of Subjects in 47 CFR Part 301

    Administrative practice and procedure, Communications Common 
Carriers, Communications equipment, Defense communications, Government 
employees, Satellites, Radio, Telecommunications.

    Dated: July 10, 2012.
Lawrence E. Strickling,
Assistant Secretary for Communications and Information Administration.

    For the reasons set forth in the preamble, NTIA proposes to amend 
47 CFR chapter III by adding part 301 to read as follows:

PART 301--RELOCATION OF AND SPECTRUM SHARING BY FEDERAL GOVERNMENT 
STATIONS

Subpart A--General Information
Sec.
301.1 Purpose.
301.10 Cross-Reference.
301.20 Definitions.
Subpart B--Technical Panel
301.100 Membership.
301.110 Organization and Operations.
301.120 Reports on Agency Transition Plans.
301.130 Technical Assistance to Dispute Resolution Panels.
Subpart C--Dispute Resolution Boards
301.200 Requests to Resolve Disputes.
301.210 Establishment and Operation of Dispute Resolution Board.
301.220 Dispute Resolution.
301.230 Appeals.

    Authority:  National Telecommunications and Information 
Administration Organization Act, 47 U.S.C. 901 et seq., as amended 
by the Middle Class Tax Relief and Job Creation Act of 2012, Public 
Law 112-96, Title VI, Subtitle G, 126 Stat. 245 (February 22, 2012) 
(47 U.S.C. 923(g)-(i) and 928).

Subpart A--General Information


Sec.  301.1  Purpose.

    Sections 113(g)-(i) and 118 of the National Telecommunications and 
Information Administration Organization Act (hereinafter ``NTIA 
Organization Act''), as amended (47 U.S.C. 923(g)-(i) and 928), govern 
the procedures and requirements related to the relocation of and 
sharing by eligible Federal radio stations in certain spectrum bands 
reallocated from Federal to non-Federal use or to shared use. Pursuant 
to these statutory provisions, Federal entities authorized to use 
eligible frequencies are entitled to payment from the Spectrum 
Relocation Fund for their documented relocation or sharing costs 
incurred as a result of planning for an auction of such frequencies or 
the reallocation of such frequencies from Federal use to exclusive non-
Federal use or to shared use. The purpose of this part is to implement 
the particular provisions that mandate the adoption of such 
regulations, after public notice and comment, and that primarily affect 
non-Federal spectrum users, including the regulations herein governing 
Technical Panels and Dispute Resolution Boards.


Sec.  301.10  Cross-reference.

    The Manual of Regulations and Procedures for Federal Radio 
Frequency Management (hereinafter referred to as the ``NTIA Manual'') 
issued by the Assistant Secretary of Commerce for Communications and 
Information, is incorporated by reference in Sec.  300.1 of this 
chapter and available online at https://www.ntia.doc.gov/osmhome/redbook/redbook.html. Annex O of the NTIA Manual, as revised, contains 
information, policies and procedures

[[Page 41963]]

applicable to Federal agencies that implement the statutory provisions 
referenced in Sec.  301.1 of this subpart with regard to such agencies 
that operate authorized U.S. Government stations in eligible 
frequencies and that incur relocation costs or sharing costs because of 
planning for an auction or the reallocation of such frequencies from 
Federal use to exclusive non-Federal use or to shared use. The NTIA 
Manual applies only to Federal agencies and does not impact the rights 
or obligations of the public. Accordingly, this cross-reference is for 
information purposes only.


Sec.  301.20  Definitions.

    Assistant Secretary means the Assistant Secretary of Commerce for 
Communications and Information.
    Auction means the competitive bidding process through which 
licenses are assigned by the Commission under section 309(j) of the 
Communications Act of 1934 (47 U.S.C. 309(j)).
    Commission means the Federal Communications Commission.
    Dispute Resolution Board means any board established pursuant to 
section 113(i) of the NTIA Organization Act (47 U.S.C. 923(i)) and 
subpart C of this part.
    Eligible Federal entity means any Federal entity that:
    (1) Operates a U.S. Government station authorized to use a band of 
eligible frequencies; and
    (2) That incurs relocation costs or sharing costs because of 
planning for an auction of spectrum frequencies or the reallocation of 
spectrum frequencies from Federal use to exclusive non-Federal use or 
to shared use.
    Eligible frequencies means any band of frequencies reallocated from 
Federal use to non-Federal use or to shared use after January 1, 2003, 
that is assigned by auction.
    Federal entity means any department, agency, or other 
instrumentality of the U.S. Government that utilizes a Government 
station assignment obtained under section 305 of the 1934 Act (47 
U.S.C. 305).
    Non-Federal user means a Commission licensee authorized to use 
eligible frequencies or a winning bidder in a Commission auction for 
eligible frequencies that has fulfilled the Commission's requirements 
for filing a long-form license application and remitting its final bid 
payment.
    NTIA means the National Telecommunications and Information 
Administration.
    NTIA Manual: The Manual of Regulations and Procedures for Federal 
Radio Frequency Management issued by the Assistant Secretary of 
Commerce for Communications and Information and incorporated by 
reference in Sec.  300.1 of this chapter (47 CFR 300.1).
    OMB means the Office of Management and Budget.
    Technical Panel means the panel established by section 113(h)(3)(A) 
of the NTIA Organization Act (47 U.S.C. 923(h)(3)(A)) and governed by 
subpart B of this part.
    Transition Plan means the plan submitted by a Federal entity 
pursuant to subsection 113(h)(1) of the NTIA Organization Act (47 
U.S.C. 923(h)(1)).

Subpart B--Technical Panel


Sec.  301.100  Membership.

    (a) Technical Panel Membership. The Technical Panel established by 
section 113(h)(3)(A) of the NTIA Organization Act (47 U.S.C. 
923(h)(3)(A)) shall be composed of three (3) members, to be appointed 
as follows:
    (1) One member to be appointed by the Director of OMB;
    (2) One member to be appointed by the Assistant Secretary; and
    (3) One member to be appointed by the Chairman of the Commission.
    (b) Qualifications. (1) Each member of the Technical Panel shall be 
a radio engineer or a technical expert.
    (2) The Assistant Secretary, in consultation with OMB and the 
Chairman of the Commission, may impose additional qualifications for 
one or more members of the Technical Panel as are necessary pursuant to 
section 113(g)(6) of the NTIA Organization Act (47 U.S.C. 923(g)(6)), 
including, but not limited to, the following:
    (i) The member must have appropriate and current security clearance 
to enable access to any classified or sensitive information that may be 
associated with or relevant to agency Transition Plans; and
    (ii) The member must be a Federal employee as defined in 5 U.S.C. 
2105(a).
    (c) Term. The term of a member of the Technical Panel shall be 
eighteen (18) months, and no individual may serve more than one (1) 
consecutive term.
    (d) Vacancies. (1) Any member of the Technical Panel appointed to 
fill a vacancy occurring before the expiration of the term for which 
the member's predecessor was appointed shall be appointed only for the 
remainder of that term.
    (2) A member of the Technical Panel may serve after the expiration 
of that member's term until a successor has taken office.
    (3) A vacancy shall be filled in the manner in which the original 
appointment was made pursuant to paragraph (a) of this section.
    (e) Compensation. (1) No member of the Technical Panel shall 
receive compensation for service on the Technical Panel.
    (2) If any member of the Technical Panel is an employee of the 
agency of the official that appointed such member to the Technical 
Panel pursuant to paragraph (a) of this section, compensation in the 
member's capacity as a Federal employee shall not be considered 
compensation under paragraph (e)(1) of this section.


Sec.  301.110  Organization and operations.

    (a) Chair. (1) The member of the Technical Panel appointed by the 
Assistant Secretary pursuant to Sec.  301.100(a) of this subpart shall 
be the Chair of the Technical Panel.
    (2) The Chair of the Technical Panel may designate a Vice-Chair who 
may act as Chair in the absence of the Chair.
    (b) Procedures of and actions by the Technical Panel. (1) The 
Technical Panel may meet either in person or by some mutually agreeable 
electronic means to take action on the reports required by Sec.  
301.120 of this subpart or in providing technical assistance to a 
Dispute Resolution Board pursuant to Sec.  301.130 of this subpart.
    (2) Meetings of the Technical Panel may be convened as necessary 
for the efficient and timely dispatch of business by either NTIA or the 
Chair of the Technical Panel to consider reports and any action thereon 
and to provide technical assistance to a Dispute Resolution Board 
pursuant to Sec.  301.130 of this subpart.
    (3) The Technical Panel shall endeavour to reach its decisions 
unanimously. Absent unanimous consent of all three members of the 
Technical Panel, a concurring vote of a majority of the total panel 
membership constitutes an action of the Technical Panel.
    (4) A majority of the Technical Panel members constitutes a quorum 
for any purpose.
    (5) The Chair of the Technical Panel, in consultation with the 
other members, may adopt additional policies and procedures to 
facilitate the efficient and timely dispatch of panel business.
    (6) The Technical Panel may consult Federal entity subject matter 
experts regarding mission risks while assessing the reasonableness of 
costs and timelines in the Federal entity's Transition Plans.
    (c) Administrative support. The NTIA shall provide the Technical 
Panel with the administrative support services necessary to carry out 
its duties under this part.

[[Page 41964]]

Sec.  301.120  Reports on agency transition plans.

    (a) Deadline for initial report. Not later than thirty (30) days 
after the receipt of a Federal entity's Transition Plan submitted in 
accordance with applicable procedures set forth in Annex O of the NTIA 
Manual, the Technical Panel shall submit to the NTIA and to such 
Federal entity the Technical Panel's report on the sufficiency of the 
Transition Plan.
    (b) Scope and content of initial report. The Technical Panel's 
report shall include:
    (1) A finding as to whether the Federal entity's Transition Plan 
includes the information required by the applicable provisions set 
forth in Annex O of the NTIA Manual;
    (2) An assessment of the reasonableness of the proposed timelines 
contained in the Federal entity's Transition Plan;
    (3) An assessment of the reasonableness of the estimated relocation 
or sharing costs itemized in the Federal entity's Transition Plan, 
including the costs identified by such plan for any proposed expansion 
of the capabilities of the Federal entity's system; and
    (4) A conclusion, based on the finding and assessments pursuant to 
paragraphs (b)(1) through (3) of this section, as to the sufficiency of 
the Transition Plan.
    (c) Insufficient Transition Plan. In the event the Technical 
Panel's initial report concludes that the Federal entity's Transition 
Plan is insufficient pursuant to subsection (b), the report shall also 
include a description of the specific information or modifications that 
are necessary for the Federal entity to include in a revised Transition 
Plan.
    (d) Revised plan. If the Technical Panel finds the plan 
insufficient, the applying Federal entity has up to 90 days to submit 
to the Technical Panel a revised plan.
    (e) Reports on revised agency Transition Plans. (1) Deadline for 
Supplemental Report. Not later than thirty (30) days after the receipt 
of a Federal entity's revised Transition Plan submitted after an 
initial or revised plan was found by the Technical Panel to be 
insufficient pursuant to paragraph (c) of this section, the Technical 
Panel shall submit to the NTIA and to such Federal entity the Panel's 
supplemental report on the sufficiency of the revised Transition Plan.
    (2) Scope and content of supplemental report. The Technical Panel's 
supplemental report on the revised Transition Plan shall include:
    (i) A finding as to whether the Federal entity's revised Transition 
Plan includes the necessary information or modifications identified in 
the Technical Panel's initial report pursuant to paragraph (b)(1) of 
this section;
    (ii) A reassessment, if required, of the reasonableness of the 
proposed timelines contained in the Federal entity's revised Transition 
Plan;
    (iii) A reassessment, if required, of the reasonableness of the 
estimated relocation or sharing costs itemized in the Federal entity's 
revised Transition Plan; and
    (iv) A conclusion, based on the finding and reassessments pursuant 
to paragraphs (e)(2)(i) through (iii) of this section, as to the 
sufficiency of the revised Transition Plan.


Sec.  301.130  Technical assistance to Dispute Resolution Panels.

    Upon request of a Dispute Resolution Board convened pursuant to 
subpart C of this part, the Technical Panel shall provide the board 
with such technical assistance as requested.

Subpart C--Dispute Resolution Boards.


Sec.  301.200  Requests to resolve disputes.

    (a) Non-Federal user requests. (1) In general. An eligible non-
Federal user may submit a written request to the NTIA in accordance 
with this subsection to establish a Dispute Resolution Board to resolve 
an actual, unresolved dispute that has arisen between the non-Federal 
user and one or more Federal entities regarding the execution, timing, 
or cost of the Transition Plan (or Plans) submitted by the Federal 
entity (or entities) pursuant to section 113(h)(1) of the NTIA 
Organization Act, as amended (47 U.S.C. 923(h)(1)).
    (2) Negotiation, mediation and arbitration. Disputes arising out of 
the execution, timing, or cost of the Transition Plan (or Plans) 
submitted by the Federal entity (or entities) must be raised, in the 
first instance, with the officers or employees of the Federal entities 
identified in the Transition Plans as being responsible for the 
relocation or sharing efforts of the entities and who are authorized to 
meet and negotiate with non-Federal users regarding the transition. To 
the extent that such disputes cannot be resolved by the parties on an 
informal basis or through good faith negotiation, they are strongly 
encouraged to use expedited alternative dispute resolution procedures, 
such as arbitration or mediation, before submitting a written request 
in accordance with this subsection to establish a board.
    (3) Eligibility to request the establishment of a board. To submit 
a request to establish a board, a non-Federal user, as such term is 
defined in Sec.  301.20 of this part, must be a winning bidder at an 
FCC auction for the eligible frequencies and the dispute must pertain 
to the execution, timing, or cost of the Transition Plan (or Plans) 
associated with the license (or licenses) subject to the winning bid 
(or bids).
    (4) Contents of request. In order to be considered by a board under 
this subpart, a request must include:
    (i) Specific allegations of fact sufficient to support the relief 
or action requested. Such allegations of fact, except for those of 
which official notice may be taken by the board, shall be supported by 
affidavits of a person or persons having personal knowledge thereof;
    (ii) A summary of the parties' prior efforts and attempts to 
resolve the dispute pursuant to paragraph (a)(2) of this section and a 
description of the reasons, factors and other conditions that led to 
the inability of such efforts and attempts to resolve the dispute;
    (iii) A detailed description of each of the claims upon which a 
resolution is sought by and available to the non-Federal user;
    (iv) A detailed description of the requested action, remedy or 
relief sought;
    (v) The requestor's contact information and a certificate of 
service showing to whom and when an identical copy of the request was 
provided to the Federal entity; and
    (vi) A meeting proposal setting forth the proposed date, time and 
place (including suggested alternatives) for a meeting with the Federal 
entity and the board, the date for which shall be no later than fifteen 
(15) days from the date the request is received by NTIA.
    (vii) A self-certification that the Federal entity is a winning 
bidder in an FCC auction pertaining to the incumbent Federal entity's 
radio-frequency spectrum.
    (5) Federal entity response. A Federal entity has the right to 
submit a response to the board prior to the date of the scheduled 
meeting. If so directed by the Chair of the board, the Federal entity 
shall submit a written response to the non-Federal user's request.
    (b) Federal entity requests. (1) In general. An eligible Federal 
entity may submit a written request in accordance with this subsection 
and Annex O of the NTIA manual to establish a Dispute Resolution Board 
to resolve an actual dispute that has arisen between the Federal entity 
and a non-Federal user regarding the execution, timing, or cost of the 
Transition Plan submitted by the Federal entity pursuant to section

[[Page 41965]]

113(h)(1) of the NTIA Organization Act, as amended (47 U.S.C. 
923(h)(1)).
    (2) Eligibility to request the establishment of a board. To submit 
a request to establish a board, a Federal entity, as such term is 
defined in Sec.  301.20 of this part, must have submitted a Transition 
Plan pursuant to section 113(h)(1) of the NTIA Organization Act (47 
U.S.C. 923(h)(1)) and the dispute must pertain to the execution, 
timing, or cost of such plan in connection with the non-Federal user's 
license (or licenses) to use the eligible frequencies.
    (3) Contents of request. In order to be considered by a board under 
this subpart, a request must include:
    (i) Specific allegations of fact sufficient to support the relief 
or action requested. Such allegations of fact, except for those for 
which official notice may be taken by the board, shall be supported by 
affidavits of a person or persons having personal knowledge thereof;
    (ii) A summary of the parties' prior efforts and attempts to 
resolve the dispute;
    (iii) A detailed description of each of the claims upon which a 
resolution is sought by and available to the Federal entity;
    (iv) A detailed description of the requested action, remedy or 
relief to be granted by the board;
    (v) The requestor's contact information and a certificate of 
service showing to whom and when an identical copy of the request was 
provided to the non-Federal user; and
    (vi) A meeting proposal setting forth the proposed date, time and 
place (including suggested alternatives) for a meeting with the non-
Federal user and the board, the date for which shall be no later than 
fifteen (15) days from the date the request is received by NTIA.
    (4) Non-Federal user response. A non-Federal user has the right to 
submit a response to the board prior to the date of the scheduled 
meeting. If so directed by the Chair of the board, the non-Federal user 
shall submit a written response to the Federal entity's request.


Sec.  301.210  Establishment and operation of a Dispute Resolution 
Board.

    (a) In general. If the NTIA receives a written request under Sec.  
301.200, it shall establish a Dispute Resolution Board in accordance 
with this section.
    (b) Board membership. A board established under this section shall 
be composed of three (3) members, to be appointed as follows:
    (1) A representative of OMB, to be appointed by the Director of 
OMB;
    (2) A representative of the NTIA, to be appointed by the Assistant 
Secretary; and
    (3) A representative of the Commission, to be appointed by the 
Chairman of the Commission.
    (c) Qualifications. The Assistant Secretary, in consultation with 
the Director of OMB and the Chairman of the Commission, may impose 
qualifications for one or more members of a board established under 
this section as are necessary pursuant to section 113(g)(6) of the NTIA 
Organization Act (47 U.S.C. 923(g)(6)), including, but not limited to, 
the following:
    (1) The member has an appropriate and current security clearance to 
enable access to any classified or sensitive information that may be 
associated with or relevant to the Transition Plan subject to dispute;
    (2) The member must be an employee of the appointing agency;
    (3) The member must be from a predetermined slate of not less than 
three (3) qualified candidates from NTIA, OMB and the Commission and 
able to serve on a board immediately upon the notification of the 
establishment of a board under this section until it rules on the 
dispute that it was established to resolve; and
    (4) The member may not simultaneously be a member of the Technical 
Panel governed by subpart B of this part or a former member of the 
Technical Panel that reviewed the Transition Plan subject to dispute.
    (d) Chair. (1) The representative of OMB shall be the Chair of any 
board established under paragraph (a) of this section.
    (2) The Chair may designate a Vice-Chair who may act as Chair in 
the absence of the Chair.
    (e) Term. The term of a member of a board shall be until such board 
is terminated pursuant to paragraph (j) of this section or until a 
successor or replacement member is appointed under paragraph (b) of 
this section.
    (f) Vacancies. Any vacancy on a board shall be filled in the manner 
in which the original appointment was made under paragraph (b) of this 
section.
    (g) Compensation. (1) No member of a board shall receive any 
compensation for service on such board.
    (2) Compensation in the member's capacity as an employee of the 
agency of the official that appointed such member to a board pursuant 
to paragraph (b) of this section shall not be considered compensation 
under paragraph (f)(1) of this section.
    (h) Procedures of and actions by a board. (1) Except with respect 
to meetings with the parties pursuant to Sec.  301.220(a), a board 
shall meet at the call of the Chair either in person or by some 
mutually agreeable electronic means to deliberate or rule on the 
dispute that it was established to resolve under paragraph (a) of this 
section or to receive technical assistance from the Technical Panel 
pursuant to Sec.  301.130 of this part.
    (2) A board shall endeavour to rule on the dispute that it was 
established to resolve under paragraph (a) of this section unanimously. 
Absent unanimous consent of all three members of a board, a concurring 
vote of a majority of the total board membership constitutes an action 
of such board.
    (3) A majority of board members constitutes a quorum for any 
purpose.
    (4) The Chair of a board, in consultation with the other members, 
may adopt additional policies and procedures to facilitate the 
efficient and timely resolution of the dispute that it was established 
to resolve under paragraph (a) of this section.
    (i) Administrative support. The NTIA shall provide any board 
established pursuant to paragraph (a) of this section with the 
administrative support services necessary to carry out its duties under 
this subpart.
    (j) Termination of a board. (1) A board established pursuant to 
paragraph (a) of this section shall terminate after it rules on the 
dispute that it was established to resolve and the time for appeal of 
its decision under section 113(i)(7) of the NTIA Organization Act has 
expired, unless such an appeal has been taken.
    (2) If such an appeal has been taken, the board shall continue to 
exist until the appeal process has been exhausted and the board has 
completed any action required by a court hearing the appeal.


Sec.  301.220  Dispute resolution.

    (a) Meeting with parties. In consideration of the proposal set 
forth in a request pursuant to either Sec.  301.200(a)(4)(vi) or 
(b)(3)(vi) of or at another mutually convenient date, time and place 
(including via teleconference or other electronic means), the Chair of 
the board established under this subpart shall call a meeting of the 
board to be held simultaneously with representatives of the parties to 
the dispute to discuss the dispute.
    (b) Additional written submissions. The parties to the dispute 
shall provide the board with any additional written materials and 
documents as it may request.
    (c) Assistance from Technical Panel. A board established under this 
Subpart may request technical assistance, as necessary, from the 
Technical Panel governed by subpart B of this part.

[[Page 41966]]

    (d) Deadline for decision. The board shall rule on the dispute not 
later than thirty (30) days from the date the request was received by 
the NTIA, unless the parties and the board all agree in writing, and 
subject to the approval of the Assistant Secretary, to extend this 
period for a specified number of days.
    (e) Board decision. The decision of a board established under this 
subpart shall be:
    (1) In writing;
    (2) Limited to matters regarding the reasonableness of the 
execution, timing, or cost of the Transition Plan submitted by the 
Federal entity;
    (3) Based only on the record before it, including the request, 
meeting(s) with the parties all at the same time, any additional 
written submissions requested by the board and served on the other 
party, input from the Technical Panel, or other matters and material 
for which it may take official notice;
    (4) In the form of a recommendation to NTIA, OMB, the Commission 
and the parties; and
    (5) Non-binding on the parties.

[FR Doc. 2012-17112 Filed 7-16-12; 8:45 am]
BILLING CODE 3510-60-P