[Federal Register Volume 78, Number 17 (Friday, January 25, 2013)]
[Rules and Regulations]
[Pages 5310-5319]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01564]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

47 CFR Part 301

[Docket No. 120620177-2445-02]
RIN 0660-AA26


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

AGENCY: National Telecommunications and Information Administration, 
Commerce.

ACTION: Final rule.

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SUMMARY: The National Telecommunications and Information Administration 
(NTIA) adopts regulations governing the Technical Panel and dispute 
resolution process 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 implements certain additions and 
modifications to the NTIA Organization Act as amended by the Middle 
Class Tax Relief and Job Creation Act of 2012 (the Tax Relief Act). As 
required by the Tax Relief Act, this rule has been reviewed and 
approved by the Director of the Office of Management and Budget (OMB).

DATES: These regulations become effective February 25, 2013.

ADDRESSES: A complete set of public comments filed in response to the 
Notice of Proposed Rulemaking is available for public inspection at the 
Office of the Chief Counsel, National Telecommunications and 
Information Administration, Room 4713, U.S. Department of Commerce, 
1401 Constitution Avenue NW., Washington, DC.\1\ The public comments 
can also be viewed electronically at http://www.ntia.doc.gov/federal-register-notice/2012/comments-technical-panel-and-dispute-resolution-board-nprm.
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    \1\ See Relocation of and Spectrum Sharing by Federal Government 
Stations--Technical Panel and Dispute Resolution Board, Notice of 
Proposed Rulemaking, Docket No. 110627357-2209-03, 77 FR 41956 (July 
17, 2012) (NPRM).

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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, Pub. L. 
112-96, Title VI, Subtitle G, 126 Stat. 245 (Feb. 22, 2012) (47 
U.S.C. 923(g)-(i), 928).

[[Page 5311]]

I. Background

    The Tax Relief Act amended the NTIA Organization Act to expand the 
types of costs for which Federal agencies can be reimbursed from the 
Spectrum Relocation Fund (Fund), which the Commercial Spectrum 
Enhancement Act (CSEA) originally established in 2004.\2\ The changes 
made by the Tax Relief Act permit Federal agencies to receive funds for 
costs associated with, among other activities, the planning for Federal 
Communications Commission (FCC or Commission) spectrum auctions and 
relocations, spectrum sharing, the use of alternative technologies, the 
replacement of existing 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.\3\ Other improvements in the statute facilitate 
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 the agencies' 
transition plans on NTIA's Web site at least 120 days before the 
commencement of the corresponding FCC auction, with the exception of 
classified and other sensitive information.\4\
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    \2\ See Middle Class Tax Relief and Jobs Creation Act of 2012, 
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, codified at 47 U.S.C. 923 and 928). 
Through the CSEA, enacted in December 2004, Congress amended the 
NTIA Organization Act to provide, among other things, for the costs 
associated with relocation of Federal entities' spectrum-dependent 
operations to be reimbursed from the proceeds of spectrum auctions.
    \3\ See 47 U.S.C. 923(g)(3) (relocation or sharing costs 
defined).
    \4\ 47 U.S.C. 923(h)(5)-(7).
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    In addition, the Tax Relief Act: (1) Specified the content of 
transition plans, following a ``common format,'' for Federal agencies; 
(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 disagreement that may arise over the execution, timing, 
or cost of transition plans can be resolved by dispute resolution 
boards.\5\
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    \5\ 47 U.S.C. 923(h)(2), (h)(3), (i). NTIA is implementing 
separately other provisions regarding the consideration and 
protection of classified and other sensitive information contained 
in agency transition plans. See 47 U.S.C. 923(h)(7) and 929.
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    On July 17, 2012, NTIA published an NPRM in the Federal Register, 
proposing regulations to govern the operation of the Technical Panel 
and the workings of any dispute resolution boards that would adjudicate 
disputes, should any arise, between non-Federal users and Federal 
entities during the transition period. NTIA sought comment from the 
public on the proposed regulations and several issues related to 
implementation, and received six public comments.\6\
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    \6\ See Comments of AT&T Services, Inc. (AT&T); Comments of 
CTIA--The Wireless Association (CTIA); Comments of Ericsson, Inc. 
(Ericsson); Comments of Squire Sanders (US) LLP (Squire Sanders); 
Comments of The Telecommunications Industry Association (TIA); 
Comments of T-Mobile USA, Inc. (T-Mobile).
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II. Discussion

A. Overview

    NTIA adopts these regulations pursuant to paragraphs (h)(3)(D) and 
(i)(8) of section 113 of the NTIA Organization Act.\7\ Specifically, 
NTIA codifies part 301 of its regulations in Title 47 of the Code of 
Federal Regulations. Subpart A sets forth the overall purpose for the 
new regulations, includes the proposed cross-reference for 
informational purposes, and defines certain terminology used throughout 
the regulations. None of the public comments addressed the proposed 
rule in Subpart A, which is adopted as proposed, except for non-
substantive or minor changes consistent with the statutory language.
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    \7\ 47 U.S.C. 923(h)(3)(D), (i)(8).
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    Subpart B contains regulations governing the operations of the 
Technical Panel established by the Tax Relief Act. Subpart C of the 
final regulations provides a basic framework under which fair and rapid 
resolution of any disputes over the execution, timing, or cost of 
transition plans may take place.

B. Technical Panel

    Sections 301.100 through 301.130 of the final regulations cover 
matters related to the membership, organization, and basic operations 
of the Technical Panel. Most of the commenters addressed the proposals 
related to the qualifications of the members of the Technical Panel and 
potential measures to prevent delays in the commencement of FCC 
spectrum auctions. In response to the comments, NTIA clarifies the text 
of the rule to ensure that the three appointing agencies have the 
flexibility, consistent with the statute, to appoint members with 
appropriate and relevant expertise and qualifications. NTIA rejects the 
recommendations by some commenters to curtail the statutory deadlines 
for the submission or resubmission of the Federal entities' transition 
plans. These issues are discussed in more detail below.
    Membership Qualifications. Pursuant to the statute, the Technical 
Panel shall be composed of three 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 of Commerce for 
Communications and Information (Assistant Secretary); and (3) one 
member to be appointed by the Chairman of the FCC.\8\ Each member 
``shall be a radio engineer or a technical expert,'' the term of each 
member shall be 18 months, and no individual may serve more than one 
consecutive term.\9\ The statute also provides that the ``members of 
the Technical Panel shall not receive any compensation for service on 
the Technical Panel.'' \10\ However, if any member is also an 
``employee of the agency of the official that appointed such member to 
the Technical Panel, compensation in the member's capacity as such an 
employee shall not be considered compensation under [this provision].'' 
\11\
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    \8\ See 47 U.S.C. 923(h)(3)(B)(i).
    \9\ 47 U.S.C. 923(h)(3)(B)(ii), (iv).
    \10\ 47 U.S.C. 923(h)(3)(B)(vi).
    \11\ Id.
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    NTIA also proposed that the Assistant Secretary, in consultation 
with OMB and the Commission, would 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.\12\ For example, depending on the 
nature of the Federal systems likely to be the subject of agency 
transition plans, NTIA proposed that the Assistant Secretary could 
require that the members have appropriate and up-to-date security 
clearances to enable access to any classified or other sensitive 
information. Commenters addressing the potential security clearance 
requirement generally supported it.\13\
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    \12\ See NPRM at 41958-59, 41963.
    \13\ See TIA Comments at 5 (``Additional minimal requirements 
not contained in the law, such as having a security clearance, seems 
a highly advantageous characteristic.''); T-Mobile Comments at 7 
(``[T]he proposed rules appropriately allow NTIA to require members 
of the Technical Panel to have appropriate and current security 
clearances.'').
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    NTIA proposed that the Assistant Secretary could require that one 
or more Technical Panel members be Federal employees as defined in 5 
U.S.C. 2105(a). Several commenters argued that the regulations should 
not restrict membership of the Technical Panel to only Federal 
employees.\14\ Some parties asserted that imposing such a restriction 
would be inconsistent with the statute

[[Page 5312]]

and that the purposes of the statute would be better served by not 
preemptively excluding all available expertise outside the U.S. 
Government.\15\ AT&T and TIA argue, for example, that by excluding 
those outside of government, the appointing agencies would have fewer 
qualified candidates with relevant experience to consider.\16\ T-Mobile 
states that ``[r]epresentatives from the private sector in general, and 
from potential bidders in particular, will be in the best position to 
determine if the information in the transition plans is sufficient for 
prospective spectrum holders.'' \17\ Two parties suggest that the 
regulations should specify that at least one member of each Technical 
Panel be from the commercial sector and have experience with commercial 
networks.\18\ T-Mobile notes that experts in the private sector 
``regularly obtain security clearances to, for example, work as 
government contractors.'' \19\
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    \14\ See AT&T Comments at 6; CTIA Comments at 5; Ericsson 
Comments at 3; TIA Comments at 5; T-Mobile Comments at 6-8.
    \15\ See CTIA Comments at 5 (stating there is no requirement in 
the Tax Relief Act that members of the Technical Panel be Federal 
employees and such an outcome would result in the Panel not having 
any expertise outside of the Federal entities' perspective); AT&T 
Comments at 6 (``The statute requires only that a member be `a radio 
engineer or a technical expert,' not that she be a [F]ederal 
employee''); Ericsson Comments at 3 (arguing the statute does not 
empower NTIA to add new qualification requirements, but it does 
allow each appointing official to determine whether to appoint a 
Federal employee, a state employee, or an expert from the private 
sector). Ericsson notes that a prior draft of the bill would have 
required that the appointee not be ``employed by, or a paid 
consultant to, any Federal or State governmental agency'' and argues 
that by omitting that limitation in the final version Congress 
removed a strict limitation on eligibility and instead gave the 
appointing officials the flexibility to appoint the most qualified 
persons, regardless of their employers. See id. at 3 n.8 (citing 
H.R. 3019, 111th Cong., 1st Sess., Sec. 2(b) (June 24, 2009)).
    \16\ See AT&T Comments at 6; TIA Comments at 4-5 (``NTIA should 
encourage participation from representatives with both the necessary 
expertise to perform their duties, but also who can remain impartial 
when resolving disputes between Federal and non-Federal parties.'').
    \17\ T-Mobile Comments at 6-7.
    \18\ See CTIA Comments at 5; T-Mobile Comments at 6.
    \19\ T-Mobile Comments at 7.
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    NTIA disagrees with the commenting parties' characterizations 
regarding the proposed additional qualifications beyond the ``radio 
engineer or technical expert'' and security clearance requirement. It 
appears that the commenters misinterpreted or misunderstood the 
language and purpose of the proposed rule, which was prefaced with the 
following language: ``The Assistant Secretary, in consultation with 
[the Director of] 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.'' \20\ The cross-referenced provision states that 
``NTIA shall take such actions as necessary to ensure the timely 
relocation of Federal entities' spectrum-related operations from 
[eligible] frequencies * * * to frequencies or facilities of comparable 
capability and to ensure the timely implementation of arrangements for 
the sharing of [eligible] frequencies.'' \21\ As noted above, the 
purpose of these additional qualifications for the panel members is to 
``ensure their timely appointment, committed service, and efficient 
dispatch of business.'' \22\ Thus, the proposed rule is consistent with 
the statutory scheme.
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    \20\ See NPRM at 41963 (emphasis added).
    \21\ 47 U.S.C. 923(g)(6). NTIA also notes that section 
6003(b)(2) of the Tax Relief Act provides the Assistant Secretary 
explicit authority to ``promulgate such regulations as are necessary 
to implement and enforce any provision of this title that is 
expressly required to be carried out by the Assistant Secretary.'' 
Public Law 112-96, Title VI, section 6003(b)(2) (47 U.S.C. 
1403(b)(2)).
    \22\ NPRM at 41958.
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    Although NTIA disagrees with the parties' statutory arguments, NTIA 
did not intend to preemptively exclude all qualified and available 
experts outside the U.S. Government to serve on the Technical Panel. 
Therefore, NTIA clarifies the text of the rule to ensure that the three 
appointing agencies have the flexibility, consistent with the statute, 
to appoint members with appropriate and relevant expertise and 
qualifications. Such expertise may relate to commercial systems and 
networks, but it may also include experience in national security, law 
enforcement, or public safety matters or Federal systems. To the extent 
that a panel member is from the private sector, the final rule provides 
that such member would have to be a ``Special Government Employee'' as 
defined in 18 U.S.C. 202(a), which, according to the Office of 
Government Ethics, is a category of Federal employees created by 
Congress as a way to apply certain conflict of interest requirements to 
certain experts, consultants, and other advisers who serve the 
government on a temporary basis.\23\
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    \23\ See http://www.oge.gov/Topics/Selected-Employee-Categories/Special-Government-Employees/.
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    As required by the statute, the respective agency heads of NTIA, 
the FCC, and OMB appointed the initial three members of the Technical 
Panel.\24\ For members appointed in the future to fill expired or 
vacant seats on the panel, NTIA plans to exercise its discretion under 
section 301.100(b)(2) of the rule to consider whether to add 
requirements based on the characteristics of the Federal and non-
Federal systems that are likely to be the subject of agency transition 
plans for the forthcoming term.
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    \24\ See 47 U.S.C. 923(h)(3)(B)(i). Although NTIA proposed in 
the NPRM that the appointing agencies could consider additional 
qualifications for one or more members of the Technical Panel, the 
Assistant Secretary did not suggest any for the initial slate of 
members. However, he recommended that, in light of the short 
timeframe under which the initial panel members had to be in place 
along with the exemption to the no-compensation provision contained 
in 47 U.S.C. 923(h)(3)(B)(vi), each agency head appoint a current 
Federal employee that is employed by the agency. See Letters from 
the Hon. Lawrence E. Strickling, Assistant Secretary for 
Communications and Information to the Hon. Jeffrey Zients, Acting 
OMB Director and the Hon. Julius Genachowski, FCC Chairman (Aug. 6, 
2012).
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    NTIA also modified the regulations to reflect that the Assistant 
Secretary's appointment will be accompanied by the Secretary of 
Commerce's approval. This change is consistent with the Appointments 
Clause of the United States Constitution.\25\
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    \25\ U.S. CONST. art. II, sec. 2, cl. 2.
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    Review of Transition Plans. The primary role of the Technical Panel 
is to review each Federal entity's transition plan and report on its 
sufficiency. The panel has 30 days to conduct its review and issue a 
report to NTIA and the submitting agency after that agency submits its 
plan. As NTIA observed in the NPRM, a potential procedural dilemma 
would be presented if the Technical Panel concludes that an initial 
plan is not sufficient.\26\ The NPRM suggested a number of options that 
NTIA and the FCC could consider under these circumstances, including 
the possible delay of the auction start date until the agency can 
submit, and the Technical Panel can review, a revised transition 
plan.\27\
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    \26\ See NPRM at 41959.
    \27\ Id.
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    Several commenters observed that the statutory time frames provide 
a relatively short period for the panel to conduct its assessment of 
transition plans.\28\ Most of the commenters urged that NTIA, to the 
extent possible, ensure that consideration of transition plans not 
delay scheduled FCC auctions, especially when a statutory deadline 
applies to particular auctions. The parties suggested alternative 
options such as requiring: (1) Direct communications or meetings 
between the Technical Panel and an agency during the 90-day 
resubmission period; (2) notification to the FCC if no resolution is 
possible during the resubmission period; or (3) submission

[[Page 5313]]

or resubmission of agency transition plans earlier than the statute's 
deadlines.\29\
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    \28\ See AT&T Comments at 5; CTIA Comments at 6-7; Ericsson 
Comments at 4; TIA Comments at 7; T-Mobile Comments at 3-5.
    \29\ See AT&T Comments at 5 (``NTIA should either require that 
agencies submit their initial transition plans earlier than 240 days 
prior to the auction, or that they submit a revised transition plan 
no later than 60 days after the Technical Panel finds its initial 
plan insufficient.''); CTIA Comments at 6 (suggesting NTIA require 
agencies to submit transition plans no later than 270 days, instead 
of 240 days, before commencement of any auction); Ericsson Comments 
at 4 (arguing that NTIA should require an agency to re-file plan 
with an urgency so as not to delay the auction); T-Mobile Comments 
at 5-6.
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    NTIA rejects the commenters' recommendations for shortening the 
statutory deadlines for the submission of Federal entities' transition 
plans. While NTIA may employ under certain circumstances and at its 
discretion other suggestions to improve interactions between the 
Technical Panel and the agencies, no modification to the proposed rule 
is necessary to implement the statute's provisions on the preparation 
of transition plans. In order to ensure timely and focused review of 
transition plans by the Technical Panel, the regulations proposed in 
the NPRM and adopted herein confine the scope and content of the 
panel's initial and, if necessary, subsequent reports to those 
assessments and findings specifically required under the statute. In 
addition, in the event the Technical Panel's initial report concludes 
that the Federal entity's transition plan is insufficient, 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. To avoid a continuous loop of back and forth 
between the agencies and the Technical Panel, the proposed and final 
regulations provide that the panel's supplemental report shall be 
limited to the issues identified in its initial report.
    As noted in the NPRM, NTIA will also provide guidance to the 
Federal entities in the revised Annex O of the NTIA Manual and other 
assistance to help ensure that each initial transition plan contains 
the information required by the statute.\30\ While it is not necessary 
to impose shorter deadlines on the agencies, Annex O may, for example, 
request that Federal entities preparing transition plans submit draft 
or informal versions of their plans to NTIA and the Technical Panel as 
early as possible to allow for a more adequate, speedy, and informal 
review of such plans, and to allow the Technical Panel to assess 
potential issues in transition plans as early as possible. NTIA, in 
consultation with OMB, the FCC and the Federal agencies, may implement 
other mechanisms to ensure the timely review of each plan. Moreover, as 
noted in some comments, Congress provided incentives to ensure that 
Federal entities promptly develop such plans, because OMB is not 
authorized to make any transfers from the Fund unless the eligible 
Federal entity's transition plan is found to be sufficient and 
published on NTIA's Web site.\31\
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    \30\ Two commenters urge NTIA to require a greater level of 
detail be included in agency transition plans. See CTIA Comments at 
7 (``Technical information such as transmitter power, receiver 
performance, antennas used, beamwidth of antenna and other technical 
parameters will allow the wireless industry to determine the effect 
that Federal operations may have on commercial operations and will 
help for determination of potential interim sharing between 
services.''); T-Mobile Comments at 8-9 (stating that rules should 
specify that transition plans include the realistic costs of 
achieving comparable capability and an agency's assessment of how it 
would achieve comparable capability). Not only are these suggestions 
beyond the scope of what the statute requires in transition plans, 
these issues are beyond the scope of this rulemaking proceeding, 
which only addresses regulations to govern the operation of the 
Technical Panel and the workings of any dispute resolution boards.
    \31\ See AT&T Comments at 5; TIA Comments at 7; see also 47 
U.S.C. 928(d)(2)(A).
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C. Dispute Resolution Boards

    Subpart C of the regulations govern the 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. 
These regulations 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.
    In light of the tight statutory deadline for resolving any 
disputes, as well as NTIA's general obligation to ensure timely 
implementation of transition plans, NTIA proposed 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. Four commenters specifically 
opposed the proposal in the NPRM to require that a dispute resolution 
board issue only nonbinding recommendations.\32\ Another commenter 
offered observations and suggestions based on its experience managing 
the alternative dispute resolution process as a part of the 
reconfiguration of the 800 MHz band by the FCC.\33\ As discussed below, 
NTIA modifies its proposal to acknowledge that dispute resolution 
boards will issue binding decisions with respect to the execution, 
timing, and cost of transition plans submitted by Federal entities.
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    \32\ See AT&T Comments at 6; CTIA Comments at 8; Ericsson 
Comments at 2; T-Mobile Comments at 10-11.
    \33\ See Squire Sanders Comments at 1-3.
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    Dispute Resolution Board Decisions. The NPRM noted that 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.''\34\ 
Because the statute does not confer independent authority on a dispute 
resolution board to bind the parties, NTIA proposed that a 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.\35\ The NPRM, however, 
noted that the statute provides that decisions of a dispute resolution 
board may be appealed to the United States Court of Appeals for the 
District of Columbia Circuit.\36\
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    \34\ NPRM at 41961 (quoting NTIA Organization Act, section 
113(i)(1), 47 U.S.C. 923(i)(1)).
    \35\ Id. at 41961, 41966 (proposed sec. 301.220(e)(4)-(5)).
    \36\ Id. at 41961 (citing NTIA Organization Act, section 
113(i)(7), 47 U.S.C. 923(i)(7)).
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    AT&T, CTIA, Ericsson, and T-Mobile argue that the proposed rule 
limiting a dispute resolution board's authority to issuing non-binding 
recommendations is contrary to the plain language and purpose of the 
statute.\37\ They point out that the statutory language provides that a 
dispute resolution board would be established to ``resolve the 
dispute'' and that a board must ``rule'' on any such dispute within 30 
days.\38\ These parties assert that because ``a decision of the dispute 
resolution board may be appealed to the United States Court of

[[Page 5314]]

Appeals for the District of Columbia Circuit,'' no further process at 
NTIA, OMB, or the FCC is required prior to a party's exercise of that 
appeal right and non-final recommendations would not be ripe for 
judicial review.\39\
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    \37\ See AT&T Comments at 6 (arguing a mere non-binding 
recommendation does not meet Congress' express directives that the 
dispute resolution board ``rule on the dispute within 30 days'' and 
that this ruling be appealable in Federal court); CTIA Comments at 8 
(noting treatment of a board's decisions as non-binding appears 
inconsistent with the intent of the statute, as the U.S. Court of 
Appeals typically does not review non-binding recommendations); 
Ericsson Comments at 2 (finding the proposal to make decisions of 
Dispute Resolution Boards non-binding is inconsistent with the plain 
language of the statute); T-Mobile Comments at 10-11 (arguing the 
NPRM's assertion that Congress did not provide the Dispute 
Resolution Board with ``independent authority * * * to bind the 
parties'' to the dispute is incorrect).
    \38\ See, e.g., AT&T Comments at 6; Ericsson Comments at 2; T-
Mobile Comments at 10 (quoting NTIA Organization Act section 
113(i)(1), (i)(4), 47 U.S.C. 923(i)(1), (i)(4)).
    \39\ See, e.g., Ericsson Comments at 2 (citing CTIA--The 
Wireless Ass'n v. FCC, 530 F.3d 984 (DC Cir. 2008)); T-Mobile 
Comments at 10 (quoting NTIA Organization Act section 113(i)(7), 47 
U.S.C. 923(i)(7)).
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    After further consideration, NTIA agrees with commenters that the 
statute requires a board to make decisions which can be appealed to the 
United States Court of Appeals for the District of Columbia 
Circuit.\40\ Accordingly, NTIA now interprets the statute as 
authorizing a dispute resolution board to make binding decisions with 
respect to disputes regarding the execution, timing, or cost of the 
transition plan submitted by the Federal entity. Such decisions could 
thus be appealed to the court.
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    \40\ As pointed out by two commenting parties, the right of 
appeal to the DC Circuit does not necessarily mean that the court 
will address the merits of a board's decision if, for example, the 
case fails to meet finality, exhaustion, ripeness and other 
requirements under the Administrative Procedure Act (APA). See 
Ericsson Comments at 2; T-Mobile Comments at 10-12 (and cases cited 
therein); see also Circuit Rules of the United States Court of 
Appeals for the District of Columbia Circuit, Title IV, ``Review or 
Enforcement of an Order of an Administrative Agency, Board, 
Commission, or Officer'' (Dec. 2011).
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    NTIA recognizes that a binding decision may have a detrimental 
impact on the Federal entity's operations or services that have 
national security, law enforcement or public safety functions. 
Accordingly, NTIA will permit the board, as necessary, to request 
additional written submissions from an agency regarding the impact of a 
binding decision on the agency's operations or services that have 
national security, law enforcement, or public safety functions. The 
dispute resolution board will also ensure that any decision it reaches 
does not have a detrimental impact on the Federal entity's operations 
or services that have national security, law enforcement, or public 
safety functions.\41\
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    \41\ See 47 U.S.C. 923(h)(2)(H). Under this provision, each 
transition plan must identify any factors that could ``hinder 
fulfillment of the transition plan by the Federal entity,'' 
including the extent to which any classified information will affect 
``the implementation of the relocation or sharing arrangement.'' 47 
U.S.C. 923(h)(7)(A)(ii). Thus, another factor that could be included 
in a plan would be any impact on national security, law enforcement, 
or public safety functions that will affect the implementation of 
the relocation or sharing arrangement. A board must consider this 
factor and any additional information that it would request from the 
agency.
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    NTIA, however, continues to interpret the Tax Relief Act so as not 
to authorize a board to exercise remedial authority statutorily granted 
to other Federal agencies. For example, NTIA does not interpret the Tax 
Relief Act as allowing boards to exercise NTIA's authority to ``assign 
frequencies to radio stations or classes of radio stations belonging to 
and operated by the United States.''\42\ The statute also does not 
authorize a board to assess damages against the U.S. Government or non-
Federal users arising out of the execution, timing, or cost of a 
Federal entity's transition plan.
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    \42\ 47 U.S.C. 902(b)(2)(A).
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    As noted in the NPRM, the Federal agencies that comprise a board's 
membership (i.e., the FCC, NTIA or OMB) do, however, possess statutory 
authority to take actions in support of a board's decision.\43\ 
Therefore, as NTIA proposed, a board may make recommendations as to 
remedies or other corrective actions to the appropriate Federal agency 
that has the statutory authority to take such actions based on the 
board's findings. The Final Rule reflects these changes.
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    \43\ For example, OMB is authorized to transfer funds to Federal 
entities from the Fund subject to conditions outlined in the 
statute. See, e.g., 47 U.S.C. 928 (authorizing OMB Director, in 
consultation with the NTIA and subject to four specific conditions, 
to make additional payments to eligible Federal entities that are 
implementing a transition plan in order to encourage such entities 
to complete the implementation more quickly). NTIA has the authority 
to ``assign frequencies to radio stations or classes of radio 
stations belonging to and operated by the United States, including 
the authority to amend, modify, or revoke such assignments.'' 47 
U.S.C. 902(b)(2)(A); see also 47 U.S.C. 923(g)(6) (authorizing NTIA 
to terminate or limit a Federal entity's authorization upon the 
completion of the entity's relocation, the implementation of its 
sharing arrangement or its unreasonable failure to comply with the 
timeline for relocation or sharing). Likewise, the FCC can make 
decisions regarding a licensee's operating rights and determine 
whether it is in compliance with FCC rules or its license 
conditions. See 47 U.S.C. 312; see also 47 U.S.C. 309(j)(16)(C) 
(authorizing the FCC to grant commercial licenses in eligible 
frequencies prior to relocation of Federal operations and the 
termination of a federal entity's authorization subject to a license 
condition requiring that the licensee cannot cause harmful 
interference to Federal operations).
---------------------------------------------------------------------------

    As noted in the NPRM, 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. Given the incentives created by the 
statute, NTIA expects only a minimal number, if any, of serious 
conflicts to arise. If such differences do surface, however, NTIA also 
expects the parties to make good faith efforts to solve these problems 
on an informal basis before submitting a request to establish a dispute 
resolution board. Therefore, as proposed, the final rule provides that 
any formal dispute resolution request must include a summary of the 
parties' prior efforts and attempts to resolve the dispute through 
negotiation, mediation, or non-binding arbitration.
    NTIA also proposed that parties requesting dispute resolution 
provide sufficient information, including a concise and specific 
statement of the factual allegations sufficient to support the relief 
or action requested by the party. In its comments, Squire Sanders 
suggests that requiring early briefing of arguments may not generate 
productive written materials because the parties will not have clearly 
defined the issues in dispute ``at the start of the mediation 
process,'' or will focus on collateral matters not central to the issue 
to be resolved.\44\ Furthermore, Squire Sanders notes that where 
recourse to independent alternative dispute resolution mechanisms is 
voluntary and at the parties' own expense, most parties will not likely 
embrace them.\45\ NTIA expects that any informal negotiation, 
mediation, or non-binding arbitration efforts between the parties will 
help clearly define and narrow the issues that are necessary to bring 
into the formal dispute resolution process. In addition, in light of 
the limited scope of disputes and the short time to resolve them, the 
written material addressing such issues must concern deviations from 
the federal entity's transition plan or factors hindering or affecting 
the plan's execution, timing, or cost. The Final Rule reflects these 
expectations and pleading requirements.
---------------------------------------------------------------------------

    \44\ Squire Sanders Comments at 2.
    \45\ Id. at 3.
---------------------------------------------------------------------------

III. Procedural Matters

Executive Order 12866

    This rule has been determined to be not significant under section 
3(f) of Executive Order 12866. Pursuant to the Tax Relief Act, this 
rule has been approved by the Director of the Office of Management and 
Budget.

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 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

[[Page 5315]]

Order, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 13132

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

Executive Order 12630

    This rule does not contain policies that have takings implications.

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 proposed regulations, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
NTIA received no comments on this certification, which remains 
unchanged.

Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) does not apply to these 
regulations because NTIA is not seeking information from 10 or more 
members of the Public (44 U.S.C. 3502(3)), and because administrative 
proceedings such as those conducted by the Technical Panel and dispute 
resolution boards are exempt from the PRA. See 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 this rule is not 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.

Lawrence E. Strickling,
Assistant Secretary for Communications and Information Administration.


0
For the reasons set forth in the preamble, NTIA amends 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.

    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, Pub. L. 
112-96, Title VI, Subtitle G, 126 Stat. 245 (Feb. 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 Entities' spectrum-related operations in 
certain spectrum bands reallocated from Federal to non-Federal use or 
to shared use. Pursuant to these statutory provisions, Eligible 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 http://www.ntia.doc.gov/osmhome/redbook/redbook.html. Annex O of the NTIA Manual, as revised, contains 
information, policies and procedures 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

[[Page 5316]]

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 means 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 section 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, with the 
approval of the Secretary of Commerce; 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 the Director of 
OMB and the Chairman of the Commission, may impose or suggest 
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 the appropriate and current security 
clearances to enable access to any classified or other sensitive 
information that may be associated with or relevant to agency 
Transition Plans;
    (ii) The member should be a Federal employee as defined in 5 U.S.C. 
2105(a) or a Special Government Employee as defined in 18 U.S.C. 
202(a); and
    (iii) The member should have the necessary expertise to perform his 
or her duties.
    (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 as necessary regarding Federal mission risks and other relevant 
issues while assessing the reasonableness of costs and timelines in the 
Federal entity's Transition Plans so long as such consultations are 
disclosed in the Technical Panel's report.
    (c) Administrative support. NTIA shall provide the Technical Panel 
with the administrative support services necessary to carry out its 
duties under this part.


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 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

[[Page 5317]]

(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 paragraph (b) of this section, 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 NTIA and the Technical Panel a revised plan.
    (e) Report 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 NTIA and to such Federal Entity the Technical 
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 Boards.

    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. A Non-Federal User 
may submit a written request to NTIA in accordance with this section to 
establish a Dispute Resolution Board (hereinafter ``board'') to resolve 
an actual, unresolved dispute that has arisen between the Non-Federal 
User and a Federal Entity regarding the execution, timing, or cost of 
the Transition Plan submitted by the Federal Entity pursuant to section 
113(h)(1) of the NTIA Organization Act (47 U.S.C. 923(h)(1)).
    (2) Negotiation, mediation and arbitration. Any dispute arising out 
of the execution, timing, or cost of the Transition Plan submitted by a 
Federal Entity must be raised, in the first instance, with the officer 
or employee of the Federal Entity identified in the Transition Plan as 
being 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. To the extent that the parties cannot resolve 
such dispute on an informal basis or through good faith negotiation, 
they are strongly encouraged to use expedited alternative dispute 
resolution procedures, such as mediation or non-binding arbitration, 
before submitting a written request in accordance with this section 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 must satisfy the 
definition of such term in Sec.  301.20 of this part and the dispute 
must pertain to the execution, timing, or cost of the Transition Plan 
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 regarding the Federal Entity's 
deviation from the Transition Plan sufficient to support the requested 
resolution of the dispute. 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, including negotiation, mediation, or non-binding 
arbitration efforts pursuant to paragraph (a)(2) of this section;
    (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 resolution of the 
dispute;
    (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 sent to NTIA.
    (vii) A self-certification that the Non-Federal User is a licensee 
authorized to use Eligible Frequencies or winning bidder in an FCC 
auction for the Eligible Frequencies.
    (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 section 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 113(h)(1) of the NTIA Organization 
Act (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 that 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 regarding the factors hindering or 
affecting the plan's execution, timing, or cost sufficient to support 
the requested resolution of the dispute. 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 resolution of the 
dispute;

[[Page 5318]]

    (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 sent to 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 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 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 the appropriate and current security clearances 
to enable access to any classified or other 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 (g)(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. 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 (47 
U.S.C. 923(i)(7)) 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 electronics 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. In cases where the dispute or an element 
thereof relates to the impact on the Federal Entity's national 
security, law enforcement, or public safety operations or functions, 
the board may request, and the Federal entity shall provide, additional 
written submissions concerning such impact.
    (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.
    (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:
    (1) Be in writing;
    (2) Be limited to determinations related to the execution, timing, 
or cost of the Transition Plan submitted by the Federal entity;
    (3) Be 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, including submissions from the Federal entity concerning the 
potential impact on its national security, law enforcement, or public 
safety operations or functions; input from the Technical Panel, and 
other matters and

[[Page 5319]]

material for which it may take official notice;
    (4) Ensure that the decision does not have a detrimental impact on 
the Federal entity's operations or services that have national 
security, law enforcement, or public safety functions; and
    (5) Be final upon issuance.
    (f) Recommendations. A decision of the board may include 
recommendations for remedial or other corrective actions to the 
appropriate Federal agency with the legal authority to take such 
actions based on the board's findings.

[FR Doc. 2013-01564 Filed 1-24-13; 8:45 am]
BILLING CODE 3510-60-P