82 FR 18134 - Arbitration Panel Decision Under the Randolph-Sheppard Act
DEPARTMENT OF EDUCATION Federal Register Volume 82, Issue 72 (April 17, 2017)
Federal Register Volume 82, Issue 72 (April 17, 2017)
| Page Range | 18134-18135 | |
| FR Document | 2017-07729 |
[Federal Register Volume 82, Number 72 (Monday, April 17, 2017)] [Notices] [Pages 18134-18135] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-07729] ----------------------------------------------------------------------- DEPARTMENT OF EDUCATION Arbitration Panel Decision Under the Randolph-Sheppard Act AGENCY: Department of Education. ACTION: Notice of arbitration decision. ----------------------------------------------------------------------- SUMMARY: The Department of Education (Department) gives notice that, on January 11, 2012, an arbitration panel (the Panel) rendered a decision in Illinois Department of Human Services, Division of Rehabilitative Services v. U.S. Department of Transportation, Federal Aviation Administration (Case no. R-S/10-02). 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(b), after receiving a complaint from the Illinois Department [[Page 18135]] of Human Services, Division of Rehabilitative Services. Under section 107d-2(c) of the Act, the Secretary publishes in the Federal Register a synopsis of each arbitration panel decision affecting the administration of vending facilities on Federal and other property. Background The complainant, the Illinois Department of Human Services (IL DHS) Division of Rehabilitative Services, alleged that the respondent, the Federal Aviation Administration (FAA), violated the Act when it rescinded a permit authorizing the Business Enterprise Program for the Blind (BEPB) to operate vending machines at the FAA facility in Elgin, Illinois. The BEPB is responsible for administering the Act in the State. Specifically, on January 4, 2006, the FAA negotiated and signed a permit authorizing BEPB to operate vending machines at the Elgin facility. Both parties agreed the facility was a satisfactory site for a vending facility under applicable regulations. On July 31, 2006, BEPB wrote the FAA asking when vending services would be implemented. On December 20, 2006, the FAA responded that there had been a change in the requirements for service and that it had awarded a contract to another vendor. Communication between BEPB and the FAA ceased from December 20, 2006, until September 2, 2008, when the BEPB program administrator, Raven Pulliam, wrote to Lois Flick at the FAA concerning the permit and requesting a date for installation of vending equipment. Hearing nothing, Pulliam wrote to the administrator of the FAA's regional office on September 21, 2010. On October 27, 2010, a representative from the regional office responded that the FAA was going to terminate the permit, specifying that the FAA's requirements for food service had changed. On November 18, 2010, the IL DHS filed a complaint and a request for a Federal arbitration with the Secretary of Education. IL DHS alleged that the FAA unlawfully: (1) Voided and withdrew an irrevocable agreement; (2) identified the Elgin facility as a ``satisfactory site'' for a vending facility but did not offer priority to blind vendors to operate such services; and (3) continued to violate the permit by refusing to allow a blind vendor to operate at the Elgin facility since January 2006. IL DHS requested that the Panel grant the following relief: (1) 50 percent of all income from vending machines currently in operation at the Elgin facility; and (2) prejudgment interest and interest from the date of award until paid. The FAA raised the affirmative defense that that the Act was not applicable because the Elgin facility did not meet the minimum requirements of a ``satisfactory site.'' The FAA also argued that: (1) The operation of a blind vending facility would adversely affect the interests of the United States; (2) the permit was not an agreement or a contract but an authorization of the provision of vending services that could be terminated with 30-days' notice; and (3) BEPB did not raise issues or contest the termination when it was notified of the FAA's intention to contract for services in December 2006 (the laches defense). In response, IL DHS stated that BEPB entered into a contractual agreement with the FAA, which could not be unilaterally revoked. It also argued there was no Secretarial determination that the placement or operation of the vending facility under the permit would be adverse to the interest of the United States and that, by signing the permit, both parties agreed that the Elgin facility met the minimum criteria identified as a ``satisfactory site'' for a vending facility. IL DHS contended that the laches defense is not applicable and that the applicable State statute of limitations for bringing a contract action is 10 years. The FAA claimed the laches defense should still apply, stating that an opportunity to exercise one of the Act's exemptions would have been made possible if it had been aware of the BEPB's position earlier. Synopsis of the Panel Decision The Panel convened a status conference by telephone on November 11, 2011, and the chair issued a pretrial order requiring both parties to submit stipulated facts and exhibits by November 30, 2011. The Panel concluded that an evidentiary hearing would not be necessary. A hearing was held by telephone conference on January 11, 2012. The Panel unanimously determined that, when the FAA and the BEPB came to a contractual agreement for the operation of vending machines at the Elgin facility, the FAA obligated itself under the Act. Furthermore, the Panel determined that the FAA forfeited any statutory exemptions given that its signature on the permit removed any claim of insufficient space, minimum level of vending machine income, or the configuration of the facility's space. Therefore, the Panel determined that the FAA was liable to the IL DHS. Although the Panel determined that laches did not apply, it also found that the BEPB would be unjustly enriched were the Panel to award the BEPB damages for the 20-month gap in which it failed to contact the FAA. On this basis, the Panel awarded the BEPB a total of $4,320.00 as the amount of the FAA's liability through March 2012. The computation was based upon a reasonable estimate of 50 percent of net income from vending machine operations, or $80 per month, multiplied by 54 months. The Panel also determined that BEPB was not entitled to pre-judgment interest. The Panel found that the permit should remain in place and stated that it hoped that the parties would negotiate, without any more delay, on establishing a vending facility on the Elgin facility. The Panel also retained jurisdiction in this matter to ensure that its decision would be adhered to. 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. 2017-07729 Filed 4-14-17; 8:45 am] BILLING CODE 4000-01-P
![18134 Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices
application to Grants.gov before the (4) Any other proof of mailing Federal Register. Free internet access to
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before the application deadline date paper application to the Department by Dated: April 12, 2017.
falls on a Federal holiday, the next hand. You must deliver the original and Monique M. Chism,
business day following the Federal two copies of your application by hand, Acting Assistant Secretary for Elementary and
holiday), you mail or email a written on or before the application deadline Secondary Education.
statement to the Department, explaining date, to the Department at the following [FR Doc. 2017–07724 Filed 4–14–17; 8:45 am]
which of the two grounds for an address: U.S. Department of Education, BILLING CODE 4000–01–P
exception prevents you from using the Application Control Center, Attention:
internet to submit your application. (CFDA Number 84.358A), 550 12th
If you mail your written statement to Street SW., Room 7039, Potomac Center DEPARTMENT OF EDUCATION
the Department, it must be postmarked Plaza, Washington, DC 20202–4260.
no later than two weeks before the The Application Control Center Arbitration Panel Decision Under the
application deadline date. Address and accepts hand deliveries daily between Randolph-Sheppard Act
mail your statement to: Mr. Eric Schulz, 8:00 a.m. and 4:30:00 p.m., Washington, AGENCY: Department of Education.
U.S. Department of Education, Room DC time, except Saturdays, Sundays,
3E–210, 400 Maryland Avenue SW., ACTION: Notice of arbitration decision.
and Federal holidays.
Washington, DC 20202. Note for Mail or Hand Delivery of Paper SUMMARY: The Department of Education
Or email your statement to: REAP@ Applications: If you mail or hand deliver (Department) gives notice that, on
ed.gov. your application to the Department— January 11, 2012, an arbitration panel
Your paper application must be (1) You must indicate on the envelope (the Panel) rendered a decision in
submitted in accordance with the mail and—if not provided by the Department—in Illinois Department of Human Services,
or hand-delivery instructions described Item 11 of the SF 424 the CFDA number, Division of Rehabilitative Services v.
in this notice. including suffix letter, if any, of the program
U.S. Department of Transportation,
b. Submission of Paper Applications under which you are submitting your
application; and Federal Aviation Administration (Case
by Mail:
(2) The Application Control Center will no. R–S/10–02).
If you qualify for an exception to the
electronic submission requirement, you mail to you a notification of receipt of your FOR FURTHER INFORMATION CONTACT: You
may mail (through the U.S. Postal grant application. If you do not receive this may obtain a copy of the full text of the
notification within 15 business days from the Panel decision from Donald Brinson,
Service or a commercial carrier) your application deadline date, you should call
application to the Department. You U.S. Department of Education, 400
the U.S. Department of Education Maryland Avenue SW., Room 5045,
must mail the original and two copies Application Control Center at (202) 245–
of your application, on or before the Potomac Center Plaza, Washington, DC
6288.
application deadline date, to the 20202–2800. Telephone: (202) 245–
Department at the following address: IV. Acessibility Information 7310. If you use a telecommunications
U.S. Department of Education, device for the deaf or a text telephone,
Accessible Format call the Federal Relay Service, toll-free,
Application Control Center, Attention:
(CFDA Number 84.358A), LBJ Basement Individuals with disabilities can at 1–800–877–8339.
Level 1, 400 Maryland Avenue SW., obtain this document and a copy of the Individuals with disabilities can
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You must show proof of mailing format (e.g., braille, large print, format (e.g., braille, large print,
consisting of one of the following: audiotape, or compact disc) on request audiotape, or compact disc) on request
mstockstill on DSK30JT082PROD with NOTICES
(1) A legibly dated U.S. Postal Service to the program contact person listed to the contact person listed under FOR
postmark. under FOR FURTHER INFORMATION FURTHER INFORMATION CONTACT.
(2) A legible mail receipt with the CONTACT. SUPPLEMENTARY INFORMATION: The Panel
date of mailing stamped by the U.S. was convened by the Department under
Postal Service. Electronic Access to This Document the Randolph-Sheppard Act (Act), 20
(3) A dated shipping label, invoice, or The official version of this document U.S.C. 107d–1(b), after receiving a
receipt from a commercial carrier. is the document published in the complaint from the Illinois Department
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![Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices 18135
of Human Services, Division of facility; and (2) prejudgment interest Although the Panel determined that
Rehabilitative Services. Under section and interest from the date of award until laches did not apply, it also found that
107d–2(c) of the Act, the Secretary paid. the BEPB would be unjustly enriched
publishes in the Federal Register a The FAA raised the affirmative were the Panel to award the BEPB
synopsis of each arbitration panel defense that that the Act was not damages for the 20-month gap in which
decision affecting the administration of applicable because the Elgin facility did it failed to contact the FAA. On this
vending facilities on Federal and other not meet the minimum requirements of basis, the Panel awarded the BEPB a
property. a ‘‘satisfactory site.’’ The FAA also total of $4,320.00 as the amount of the
argued that: (1) The operation of a blind
Background FAA’s liability through March 2012.
vending facility would adversely affect
The complainant, the Illinois The computation was based upon a
the interests of the United States; (2) the
Department of Human Services (IL DHS) permit was not an agreement or a reasonable estimate of 50 percent of net
Division of Rehabilitative Services, contract but an authorization of the income from vending machine
alleged that the respondent, the Federal provision of vending services that could operations, or $80 per month,
Aviation Administration (FAA), be terminated with 30-days’ notice; and multiplied by 54 months. The Panel also
violated the Act when it rescinded a (3) BEPB did not raise issues or contest determined that BEPB was not entitled
permit authorizing the Business the termination when it was notified of to pre-judgment interest.
Enterprise Program for the Blind (BEPB) the FAA’s intention to contract for The Panel found that the permit
to operate vending machines at the FAA services in December 2006 (the laches should remain in place and stated that
facility in Elgin, Illinois. The BEPB is defense). it hoped that the parties would
responsible for administering the Act in In response, IL DHS stated that BEPB negotiate, without any more delay, on
the State. entered into a contractual agreement establishing a vending facility on the
Specifically, on January 4, 2006, the with the FAA, which could not be
FAA negotiated and signed a permit Elgin facility. The Panel also retained
unilaterally revoked. It also argued there
authorizing BEPB to operate vending jurisdiction in this matter to ensure that
was no Secretarial determination that
machines at the Elgin facility. Both the placement or operation of the its decision would be adhered to.
parties agreed the facility was a vending facility under the permit would The views and opinions expressed by
satisfactory site for a vending facility be adverse to the interest of the United the Panel do not necessarily represent
under applicable regulations. On July States and that, by signing the permit, the views and opinions of the
31, 2006, BEPB wrote the FAA asking both parties agreed that the Elgin facility Department.
when vending services would be met the minimum criteria identified as Electronic Access to This Document:
implemented. On December 20, 2006, a ‘‘satisfactory site’’ for a vending
the FAA responded that there had been The official version of this document is
facility. IL DHS contended that the
a change in the requirements for service the document published in the Federal
laches defense is not applicable and that
and that it had awarded a contract to Register. Free internet access to the
the applicable State statute of
another vendor. limitations for bringing a contract action official edition of the Federal Register
Communication between BEPB and is 10 years. and the Code of Federal Regulations is
the FAA ceased from December 20, The FAA claimed the laches defense available via the Federal Digital System
2006, until September 2, 2008, when the should still apply, stating that an at: www.gpo.gov/fdsys. At this site you
BEPB program administrator, Raven opportunity to exercise one of the Act’s can view this document, as well as all
Pulliam, wrote to Lois Flick at the FAA exemptions would have been made other documents of this Department
concerning the permit and requesting a possible if it had been aware of the published in the Federal Register, in
date for installation of vending BEPB’s position earlier. text or Portable Document Format
equipment. Hearing nothing, Pulliam (PDF). To use PDF you must have
wrote to the administrator of the FAA’s Synopsis of the Panel Decision
Adobe Acrobat Reader, which is
regional office on September 21, 2010. The Panel convened a status available free at the site.
On October 27, 2010, a representative conference by telephone on November
11, 2011, and the chair issued a pretrial You may also access documents of the
from the regional office responded that
order requiring both parties to submit Department published in the Federal
the FAA was going to terminate the
permit, specifying that the FAA’s stipulated facts and exhibits by Register by using the article search
requirements for food service had November 30, 2011. The Panel feature at www.federalregister.gov.
changed. On November 18, 2010, the IL concluded that an evidentiary hearing Specifically, through the advanced
DHS filed a complaint and a request for would not be necessary. A hearing was search feature at this site, you can limit
a Federal arbitration with the Secretary held by telephone conference on your search to documents published by
of Education. January 11, 2012. the Department.
IL DHS alleged that the FAA The Panel unanimously determined Dated: April 11, 2017.
unlawfully: (1) Voided and withdrew an that, when the FAA and the BEPB came
Ruth E. Ryder,
irrevocable agreement; (2) identified the to a contractual agreement for the
operation of vending machines at the Deputy Director, Office of Special Education
Elgin facility as a ‘‘satisfactory site’’ for
Elgin facility, the FAA obligated itself Programs, delegated the duties of the
a vending facility but did not offer
Assistant Secretary for Special Education and
priority to blind vendors to operate such under the Act. Furthermore, the Panel
Rehabilitative Services.
services; and (3) continued to violate the determined that the FAA forfeited any
mstockstill on DSK30JT082PROD with NOTICES
[FR Doc. 2017–07729 Filed 4–14–17; 8:45 am]
permit by refusing to allow a blind statutory exemptions given that its
vendor to operate at the Elgin facility signature on the permit removed any BILLING CODE 4000–01–P
since January 2006. claim of insufficient space, minimum
IL DHS requested that the Panel grant level of vending machine income, or the
the following relief: (1) 50 percent of all configuration of the facility’s space.
income from vending machines Therefore, the Panel determined that the
currently in operation at the Elgin FAA was liable to the IL DHS.
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Document Created: 2018-08-25 11:27:59
Document Modified: 2018-08-25 11:27:59
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of arbitration decision. | |
| 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. | |
| FR Citation | 82 FR 18134 |
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