82_FR_18202 82 FR 18130 - Arbitration Panel Decision Under the Randolph-Sheppard Act

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

DEPARTMENT OF EDUCATION

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

Page Range18130-18131
FR Document2017-07730

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 Issue 72 (Monday, April 17, 2017) 
[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 
at: www.thefederalregister.org/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Portable Document Format (PDF). To use PDF you 
must have Adobe Acrobat Reader, which is available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
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

18130 Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices its claim that the 5 percent competitive be required to initiate a new acquisition the Randolph-Sheppard Act (Act), 20 range on its face violated the Act in compliance with 34 CFR 395.33. U.S.C. 107d–1(a), after receiving a because the CO DHS failed to protest the Electronic Access to This Document: complaint from Rutherford Beard, a competitive range at the time the Air The official version of this document is licensed blind operator of a vending Force issued the solicitation. The Air the document published in the Federal facility at the Joint Forces Training Force had the discretion to set a Register. Free internet access to the Center. Under section 107d–2(c) of the competitive range at this level. official edition of the Federal Register Act, the Secretary publishes in the The Panel also held that the CO DHS and the Code of Federal Regulations is Federal Register a synopsis of each waived its claim that the 5 percent available via the Federal Digital System Panel decision affecting the limitation was a limitation on the at: www.gpo.gov/fdsys. At this site you administration of vending facilities on operation of a vending facility because can view this document, as well as all Federal and other property. it failed to raise it at the time the Air other documents of this Department published in the Federal Register, in Background Force issued the solicitation. The Panel further held that the Joint text or Portable Document Format The complainant, Rutherford Beard, is Report was not effective because (PDF). To use PDF you must have a food vendor in the respondent’s, the regulations implementing that report Adobe Acrobat Reader, which is Michigan Commission for the Blind’s had never been promulgated and the 5 available free at the site. (Commission), business enterprise percent competitive range set by the Air You may also access documents of the program (BEP). On May 1, 2008, Mr. Force was not based on the Joint Report. Department published in the Federal Beard signed a vending facility The Panel held that, instead, the Register by using the article search agreement to operate a cafeteria at the competitive range was the product of feature at www.federalregister.gov. Joint Forces Training Center. He was the Air Force’s need to keep down its Specifically, through the advanced provided with initial inventory and costs and emphasize the importance of search feature at this site, you can limit equipment, and the cafeteria began to price to bidders. your search to documents published by sell food. This facility was projected to In addition, the Panel held that the the Department. generate $150,000 in annual sales with Air Force was not required to conduct Dated: April 11, 2017. an 11 percent profit. The facility did not discussions with the CO DHS because Ruth E. Ryder, generate the expected sales and the Act permits, but does not require, Deputy Director, Office of Special Education ultimately Mr. Beard had to lay off two such discussions. In addition, the Programs, delegated the duties of the employees. As a result, his staff was Federal Acquisition Regulation (FAR) Assistant Secretary for Special Education and reduced to himself and a part-time does not require discussions with Rehabilitative Services. employee. bidders. The Panel held that, even if the [FR Doc. 2017–07728 Filed 4–14–17; 8:45 am] Because the facility was not FAR did require discussions, a violation BILLING CODE 4000–01–P generating any profit, Mr. Beard asked of the FAR cannot be the subject of for a profit percentage exception after arbitration under the Act. six months. He explained that, if a The Panel held that such a claim did DEPARTMENT OF EDUCATION vendor does not meet the expected not involve an alleged violation of the profit margin and does not get an Act and, therefore, could not be brought Arbitration Panel Decision Under the exception, he is not eligible to bid on a in arbitration. The Panel also Randolph-Sheppard Act different facility. Mr. Beard testified that determined that the claim that the Air AGENCY: Department of Education. he ‘‘tried everything,’’ including Force misled the CO DHS into thinking ACTION: Notice of arbitration decision. opening on some weekends and opening it had the lowest bid did not involve an for breakfast, but he did not generate a alleged violation of the Act and, SUMMARY: The Department of Education profit. After Mr. Beard attempted to therefore, could not be brought in (Department) gives notice that, on transfer to another location, the arbitration. Under the facts of this case, October 7, 2012, an arbitration panel Commission informed him that he had the Panel determined that the CO DHS (the Panel) rendered a decision in to remain for at least a year according could not reasonably claim prejudice Rutherford Beard v. the Michigan to the BEP rules. The cafeteria was then because of an allegedly misleading Commission for the Blind (Case no. R– closed. statement by the Air Force. S/09–01). In his appeal, Mr. Beard claimed that The Panel concluded, with one FOR FURTHER INFORMATION CONTACT: You he did not get sufficient help from the member dissenting, that the Air Force may obtain a copy of the full text of the BEP and was not allowed to transfer out violated the Act’s regulations when it Panel decision from Donald Brinson, after six months. He also asserted that failed to consult with the Secretary of U.S. Department of Education, 400 there were vending machines in Education during this solicitation. Even Maryland Avenue SW., Room 5045, different buildings on the same grounds though the Air Force determined that Potomac Center Plaza, Washington, DC that could have been awarded to him to the CO DHS’s bid was not within the 5 20202–2800. Telephone: (202) 245– lessen the adverse financial effect of the percent competitive range, the Panel 7310. If you use a telecommunications lack of business. That solution was also held that 34 CFR 395.33(a) required the device for the deaf or a text telephone, denied. Mr. Beard also contended that Air Force to consult with the Secretary call the Federal Relay Service, toll-free, because the initial projection for sales at of Education in order to determine at 1–800–877–8339. this cafeteria was miscalculated, and whether the blind vendor was entitled Individuals with disabilities can because he was not allowed to transfer mstockstill on DSK30JT082PROD with NOTICES to a priority in the solicitation pursuant obtain this document in an accessible after six months, the Commission to that regulatory provision. The Panel format (e.g., braille, large print, should reimburse him for his losses. directed that, if the Secretary of audiotape, or compact disc) on request In response, the Commission asserted Education determines after consultation to the contact person listed under FOR that, under its rules, there is no with the Air Force that the CO DHS FURTHER INFORMATION CONTACT. guarantee that a vendor will make a should be afforded a priority pursuant SUPPLEMENTARY INFORMATION: The Panel profit. It also pointed out that Mr. Beard to 34 CFR 395.33(a), the Air Force will was convened by the Department under did not exercise the procedural rights VerDate Sep<11>2014 17:14 Apr 14, 2017 Jkt 241001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\17APN1.SGM 17APN1

Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices 18131 granted by the Act and the DEPARTMENT OF EDUCATION II. Program Authority and Eligibility Commission’s rules. Information Application Deadline for Fiscal Year Summary of Panel Decision 2017; Small, Rural School Under what statutory authority will FY Achievement Program 2017 SRSA grant awards be made? At Mr. Beard’s request, the Panel was convened on October 7, 2012. The Panel The FY 2017 SRSA grant awards will AGENCY: Office of Elementary and concluded that the Commission did not be made under the statutory authority in Secondary Education, Department of have the authority to grant Mr. Beard’s title V, part B, subpart 1 of the Education. requested relief. One Panel member Elementary and Secondary Education ACTION: Notice. Act of 1965 (ESEA), as amended by the asserted that section 107b(3) of the Act Every Student Succeeds Act (ESSA) authorizes the Commission to provide SUMMARY: Under the Small, Rural (Pub. Law 114–95). licensed vendors with a fair minimum School Achievement (SRSA) program, return when circumstances warrant it. Catalog of Federal Domestic Assistance Which LEAs are eligible for an award Another Panel member indicated that (CFDA) number 84.358A, the U.S. under the SRSA program? this section is not mandatory language Department of Education (Department) For FY 2017, an LEA (including a and that the Commission’s rules do not awards grants on a formula basis to public charter school that is considered provide for remuneration. The Panel eligible local educational agencies an LEA under State law) is eligible for chair stated that the Commission ought (LEAs) to address the unique needs of an award under the SRSA program if it to adopt a rule to provide some rural school districts. In this notice, we meets one of the following criteria: remuneration for situations like this. establish the deadline and describe the submission procedures for fiscal year (a)(1) The total number of students in However, absent any rule in place, the average daily attendance at all of the Panel decided that there was (FY) 2017 SRSA grant applications. All LEAs eligible for FY 2017 SRSA schools served by the LEA is fewer than insufficient justification for any 600; or each county in which a school remuneration and, therefore, funds must submit an application electronically via Grants.gov by the served by the LEA is located has a total remuneration was not appropriate in population density of fewer than 10 deadline in this notice. this case. persons per square mile; and DATES: The views and opinions expressed by (2) All of the schools served by the Applications Available: May 1, 2017. the Panel do not necessarily represent LEA are designated with a school locale Application Deadline: June 30, 2017 the views and opinions of the code of 41, 42, or 43 by the by 4:30:00 p.m., Washington, DC time. Department. Department’s National Center for FOR FURTHER INFORMATION CONTACT: Mr. Education Statistics (NCES); or the Electronic Access to This Document: Eric Schulz, U.S. Department of Secretary has determined, based on a The official version of this document is Education, 400 Maryland Avenue SW., demonstration by the LEA and the document published in the Federal Room 3E–210, Washington, DC 20202. concurrence of the State educational Register. Free internet access to the Telephone: (202) 260–7349 or by email: agency, that the LEA is located in an official edition of the Federal Register reap@ed.gov. area defined as rural by a governmental and the Code of Federal Regulations is If you use a telecommunications agency of the State. available via the Federal Digital System device for the deaf or a text telephone, (b) The LEA is a member of an at: www.gpo.gov/fdsys. At this site you call the Federal Relay Service, toll free, educational service agency (ESA) that can view this document, as well as all at 1–800–877–8339. does not receive SRSA funds, and the other documents of this Department SUPPLEMENTARY INFORMATION: LEA meets the eligibility requirements published in the Federal Register, in described in (a)(1) and (2) above. text or Portable Document Format I. Award Information (c) The LEA meets the requirements (PDF). To use PDF you must have Type of Award: Formula grant. for a hold harmless award as described Adobe Acrobat Reader, which is Estimated Available Funds: The in section 5212(b)(4) of the ESEA, as available free at the site. Further Continuing and Security amended by the ESSA. These are LEAs You may also access documents of the Assistance Appropriations Act, 2017, that are no longer eligible for the SRSA Department published in the Federal would provide, on an annualized basis, program because of amendments made Register by using the article search $87,752,864 for this program. The actual under the ESSA to the locale code feature at www.federalregister.gov. level of funding, if any, depends on designations referenced in section Specifically, through the advanced final congressional action. However, we 5211(b)(1)(A)(ii) of the ESEA, as search feature at this site, you can limit are inviting applications to allow amended by the ESSA. However, these your search to documents published by enough time to complete the grant LEAs may receive a FY 2017 award at the Department. process if Congress appropriates funds a reduced rate as described in section for this program. 5212(b)(4) of the ESEA, as amended by Dated: April 11, 2017. Estimated Range of Awards: $0– the ESSA. Ruth E. Ryder, $60,000. Note: A new ‘‘Choice of Participation’’ Deputy Director, Office of Special Education Note: Depending on the number of eligible provision under section 5225 of the ESEA, as Programs, delegated the duties of the LEAs identified in a given year and the amended by the ESSA, gives LEAs eligible mstockstill on DSK30JT082PROD with NOTICES Assistant Secretary for Special Education and amount appropriated by Congress for the for both SRSA and the Rural and Low- Rehabilitative Services. program, some eligible LEAs may receive an Income School (RLIS) program authorized [FR Doc. 2017–07730 Filed 4–14–17; 8:45 am] SRSA allocation of $0 under the statutory under title V, part B, subpart 2 of the ESEA, BILLING CODE 4000–01–P funding formula. as amended by the ESSA, the option to participate in either the SRSA program or the Estimated Number of Awards: 4,300. RLIS program. LEAs eligible for both SRSA Note: The Department is not bound by any and RLIS are referred to as ‘‘dual-eligible estimates in this notice. LEAs’’. VerDate Sep<11>2014 17:14 Apr 14, 2017 Jkt 241001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\17APN1.SGM 17APN1


Document Created: 2018-08-25 11:27:46
Document Modified: 2018-08-25 11:27:46
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of arbitration decision.
ContactYou 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.
FR Citation82 FR 18130 
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