82 FR 18130 - Arbitration Panel Decision Under the Randolph-Sheppard Act

DEPARTMENT OF EDUCATION

Federal Register Volume 82, Issue 72 (April 17, 2017)

The Department of Education (Department) gives notice that, on October 7, 2012, an arbitration panel (the Panel) rendered a decision in Rutherford Beard v. the Michigan Commission for the Blind (Case no. R-S/09-01).

[Federal Register Volume 82, Number 72 (Monday, April 17, 2017)]
[Notices]
[Pages 18130-18131]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-07730]


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DEPARTMENT OF EDUCATION


Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice of arbitration decision.

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SUMMARY: The Department of Education (Department) gives notice that, on 
October 7, 2012, an arbitration panel (the Panel) rendered a decision 
in Rutherford Beard v. the Michigan Commission for the Blind (Case no. 
R-S/09-01).

FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text 
of the Panel decision from Donald Brinson, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 5045, Potomac Center Plaza, 
Washington, DC 20202-2800. Telephone: (202) 245-7310. If you use a 
telecommunications device for the deaf or a text telephone, call the 
Federal Relay Service, toll-free, at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or compact 
disc) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: The Panel was convened by the Department 
under the Randolph-Sheppard Act (Act), 20 U.S.C. 107d-1(a), after 
receiving a complaint from Rutherford Beard, a licensed blind operator 
of a vending facility at the Joint Forces Training Center. Under 
section 107d-2(c) of the Act, the Secretary publishes in the Federal 
Register a synopsis of each Panel decision affecting the administration 
of vending facilities on Federal and other property.

Background

    The complainant, Rutherford Beard, is a food vendor in the 
respondent's, the Michigan Commission for the Blind's (Commission), 
business enterprise program (BEP). On May 1, 2008, Mr. Beard signed a 
vending facility agreement to operate a cafeteria at the Joint Forces 
Training Center. He was provided with initial inventory and equipment, 
and the cafeteria began to sell food. This facility was projected to 
generate $150,000 in annual sales with an 11 percent profit. The 
facility did not generate the expected sales and ultimately Mr. Beard 
had to lay off two employees. As a result, his staff was reduced to 
himself and a part-time employee.
    Because the facility was not generating any profit, Mr. Beard asked 
for a profit percentage exception after six months. He explained that, 
if a vendor does not meet the expected profit margin and does not get 
an exception, he is not eligible to bid on a different facility. Mr. 
Beard testified that he ``tried everything,'' including opening on some 
weekends and opening for breakfast, but he did not generate a profit. 
After Mr. Beard attempted to transfer to another location, the 
Commission informed him that he had to remain for at least a year 
according to the BEP rules. The cafeteria was then closed.
    In his appeal, Mr. Beard claimed that he did not get sufficient 
help from the BEP and was not allowed to transfer out after six months. 
He also asserted that there were vending machines in different 
buildings on the same grounds that could have been awarded to him to 
lessen the adverse financial effect of the lack of business. That 
solution was also denied. Mr. Beard also contended that because the 
initial projection for sales at this cafeteria was miscalculated, and 
because he was not allowed to transfer after six months, the Commission 
should reimburse him for his losses.
    In response, the Commission asserted that, under its rules, there 
is no guarantee that a vendor will make a profit. It also pointed out 
that Mr. Beard did not exercise the procedural rights

[[Page 18131]]

granted by the Act and the Commission's rules.

Summary of Panel Decision

    At Mr. Beard's request, the Panel was convened on October 7, 2012. 
The Panel concluded that the Commission did not have the authority to 
grant Mr. Beard's requested relief. One Panel member asserted that 
section 107b(3) of the Act authorizes the Commission to provide 
licensed vendors with a fair minimum return when circumstances warrant 
it. Another Panel member indicated that this section is not mandatory 
language and that the Commission's rules do not provide for 
remuneration. The Panel chair stated that the Commission ought to adopt 
a rule to provide some remuneration for situations like this. However, 
absent any rule in place, the Panel decided that there was insufficient 
justification for any remuneration and, therefore, remuneration was not 
appropriate in this case.
    The views and opinions expressed by the Panel do not necessarily 
represent the views and opinions of the Department.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
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as all other documents of this Department published in the Federal 
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must have Adobe Acrobat Reader, which is available free at the site.
    You may also access documents of the Department published in the 
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www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: April 11, 2017.
Ruth E. Ryder,
Deputy Director, Office of Special Education Programs, delegated the 
duties of the Assistant Secretary for Special Education and 
Rehabilitative Services.
[FR Doc. 2017-07730 Filed 4-14-17; 8:45 am]
 BILLING CODE 4000-01-P