PART 301—RELOCATION OF AND SPECTRUM SHARING BY FEDERAL GOVERNMENT STATIONS Authority: National Telecommunications and Information Administration Organization Act, 47 U.S.C. 901 et seq., Source: 78 FR 5315, Jan. 25, 2013, unless otherwise noted. Subpart A—General Information § 301.1 Purpose. The purpose of this part is to set forth procedures for the Technical Panel and Dispute Resolution Board as required pursuant to the National Telecommunications and Information Administration Organization Act (hereinafter “NTIA Organization Act”), as amended (47 U.S.C. 923(g)-(l) and 928). [81 FR 3338, Jan. 21, 2016] § 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 § 300.1 of this chapter and available online at http://www.ntia.doc.gov/osmhome/redbook/redbook.html. § 301.20 Definitions. Assistant Secretary Auction Commission Dispute Resolution Board Eligible Federal Entity (1) Operates a U.S. Government station; and (2) That incurs relocation costs or sharing costs because of planning for an auction of eligible spectrum frequencies or the reallocation of eligible spectrum frequencies from Federal use to exclusive non-Federal use or to shared use. Eligible frequencies Federal Entity Non-Federal user NTIA NTIA Manual OMB Spectrum Pipeline Plan Technical Panel Transition Plan [78 FR 5315, Jan. 25, 2013, as amended at 81 FR 3338, Jan. 21, 2016] § 301.30 Address for submissions to the Technical Panel and Dispute Resolution Board. Submissions to the Technical Panel and the Dispute Resolution Board under this section shall be made to the Office of the Assistant Secretary, National Telecommunications and Information Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230. [81 FR 3338, Jan. 21, 2016] Subpart B—Technical Panel § 301.100 Membership. (a) Technical Panel membership. (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. (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. (d) Vacancies. (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. (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. § 301.110 Organization and operations. (a) Chair. (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. (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 § 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. § 301.115 Spectrum Pipeline Plans. (a) Submission of Spectrum Pipeline Plan. (b) Contents of Spectrum Pipeline Plan. (1) Systems that have increased functionality or that increase the ability of a Federal Entity to accommodate spectrum sharing with non-Federal entities; (2) Systems that consolidate functions or services that have been provided using separate systems; or (3) Non-spectrum technology or systems. (c) Review by Technical Panel Deadline for approval. (2) Criteria for Review. (i) The activities that the Federal Entity will conduct with the payment will: (A) Increase the probability of relocation from or sharing of Federal spectrum; (B) Facilitate an auction intended to occur not later than 8 years after the payment; and (C) Increase the net expected auction proceeds in an amount not less than the time value of the amount of the payment. (ii) The transfer will leave sufficient amounts in the Spectrum Relocation Fund for the other purposes of such fund. [81 FR 3338, Jan. 21, 2016] § 301.120 Reports on agency Transition Plans. (a) Deadline for initial report. (b) Scope and content of initial report. (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. (d) Revised plan. (e) Report on revised agency Transition Plans. (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. § 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. § 301.200 Requests to resolve disputes. (a) Non-Federal User requests In general. (2) Negotiation, mediation and arbitration. (3) Eligibility to request the establishment of a board. (4) Contents of request. (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. (b) Federal Entity requests In general. (2) Eligibility to request the establishment of a board. (3) Contents of request. (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; (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. § 301.210 Establishment and operation of a Dispute Resolution Board. (a) In general. (b) Board membership. (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. (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. (2) The Chair may designate a Vice-Chair who may act as Chair in the absence of the Chair. (e) Term. (f) Vacancies. (g) Compensation. (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. (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. (j) Termination of a board. (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. § 301.220 Dispute Resolution. (a) Meeting with parties. (b) Additional written submissions. (c) Assistance from Technical Panel. (d) Deadline for decision. (e) Board decision. (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 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.