Arbitration Panel Decision Under the Randolph-Sheppard Act, 1062-1063 [2012-147]

Download as PDF 1062 Federal Register / Vol. 77, No. 5 / Monday, January 9, 2012 / Notices Parkway, Asheboro, NC 27203 [David Jones, Responsible Party], and the Springfield Science Museum, 21 Edwards Street Springfield, MA 01103 [David J. Stier, Responsible Party] have been issued permits to take shortnose sturgeon for purposes of enhancement. The permit and related documents are available for review upon written request or by appointment in the following offices: Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376; Northeast Region, NMFS, 55 Great Republic Drive Gloucester, MA 01930; phone (978) 281–9328; fax (978) 281– 9394; and Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, FL 33701; phone (727) 824–5312; fax (727) 824–5309. Dated: January 3, 2012. P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2012–151 Filed 1–6–12; 8:45 am] BILLING CODE 3510–22–P ADDRESSES: FOR FURTHER INFORMATION CONTACT: Jennifer Skidmore and Colette Cairns, (301) 427–8401. On July 11, 2011 and August 19, 2011, notices were published in the Federal Register (76 FR 51945 and 76 FR 40699) that requests for enhancement permits to take shortnose sturgeon had been submitted by the above-named organizations. The requested permits have been issued under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222–226). The North Carolina Zoo and the Springfield Science Museum have been issued permits to continue enhancement activities previously authorized under Permit Nos. 1545 and 1555, respectively. Activities include the continued maintenance, transport and educational display of captive-bred, non-releaseable adult shortnose sturgeon. The permits do not authorize any takes from the wild, nor do they authorize any release of captive sturgeon into the wild. These permits are valid for a duration of 5 years. Issuance of the permits, as required by the ESA, was based on a finding that such permits (1) were applied for in good faith, (2) will not operate to the disadvantage of such endangered or threatened species, and (3) are consistent with the purposes and policies set forth in section 2 of the ESA. tkelley on DSK3SPTVN1PROD with NOTICES SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 16:26 Jan 06, 2012 Jkt 226001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XA900 Endangered Species; File No. 16146 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Issuance of permit. AGENCY: Notice is hereby given that Kristen Hart, Ph.D., U.S. Geological Survey, Southeast Ecological Science Center, Davie Field Office, Davie, FL has been issued a permit to take loggerhead (Caretta caretta), green (Chelonia mydas), and hawksbill (Eretmochelys imbricata) sea turtles for the purposes of scientific research. ADDRESSES: The permit and related documents are available for review upon written request or by appointment in the following offices: Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376; and Southeast Region, NMFS, 263 13th Ave South, St. Petersburg, FL 33701; phone (727) 824–5312; fax (727) 824– 5309. SUMMARY: FOR FURTHER INFORMATION CONTACT: Amy Hapeman or Kristy Beard, (301) 427–8401. SUPPLEMENTARY INFORMATION: On July 25, 2011, notice was published in the Federal Register (76 FR 44306) that a request for a scientific research permit to take loggerhead, green, and hawksbill sea turtles had been submitted by the above-named individual. The requested permit has been issued under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222–226). Dr. Hart is authorized to study green, hawksbill, and loggerhead sea turtles at Buck Island Reef National Monument, U.S. Virgin Islands. The purposes of the research are to determine speciesspecific habitat-use patterns over time, PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 increase understanding of genetic stock structure, and estimate vital rates and local population abundance of sea turtles. Researchers may visually count sea turtles during vessel surveys or capture animals by hand, rodeo, dip net, tangle net or cast net for sampling and tagging. Captured sea turtles may have the following procedures performed: epibiota removal, lavage, temporary carapace marking, flipper and passive integrated transponder tagging, measuring, photograph, recapture, blood sampling, fecal sampling, tissue biopsy, and weighing. A subset of animals also may be tagged with satellite tags and data loggers (epoxy attachments) and/or acoustic transmitters (epoxy or drill carapace and attach with wire). The permit is valid for five years. Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of such endangered or threatened species, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA. Dated: December 27, 2011. P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2012–146 Filed 1–6–12; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF EDUCATION Arbitration Panel Decision Under the Randolph-Sheppard Act Department of Education. Notice decision. AGENCY: ACTION: The Department of Education (Department) gives notice that on August 29, 2011, an arbitration panel rendered a decision in the matter of Judy A. Davis-Perry v. Missouri Department of Social Services Rehabilitation Services for the Blind, Case no. R–S/10–1. The Department convened this panel after receiving a complaint filed by the Complainant, Judy A. Davis-Perry. FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text of the arbitration panel decision from Mary Yang, U.S. Department of Education, 400 Maryland Avenue SW., room 5162, Potomac Center Plaza, Washington, DC 20202–2800. Telephone: (202) 245– 6327. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll-free, at 1–800–877–8339. Individuals with disabilities can obtain this document in an accessible SUMMARY: E:\FR\FM\09JAN1.SGM 09JAN1 Federal Register / Vol. 77, No. 5 / Monday, January 9, 2012 / Notices tkelley on DSK3SPTVN1PROD with NOTICES format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT. SUPPLEMENTARY INFORMATION: Under section 6(c) of the Randolph-Sheppard Act (Act), 20 U.S.C. 107d-2(c), 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 Judy A. Davis-Perry (Complainant) alleged violations by the Missouri Department of Social Services, Rehabilitation Services for the Blind, the State licensing agency (SLA) under the Act, and implementing regulations in 34 CFR part 395. Complainant alleged that the SLA improperly denied her bid to manage Vending Facility #195, a vending machine facility, at the Internal Revenue Service (IRS) Consolidation offices in Kansas City, Missouri. Specifically, Complainant alleged that the SLA’s selection procedures was biased and flawed and that the SLA discriminated against her in selecting another bidder. On October 30, 2009, the SLA mailed out a bid announcement to all licensed blind vendors notifying them of a Level II vending opening at Vending Facility #195. On November 5, 2009, Complainant submitted her bid to manage Vending Facility #195. On November 21, 2009, the SLA’s Executive Committee (Committee,) which had the responsibility to administer the SLA’s transfer and promotions procedures, interviewed five applicants for Vending Facility #195, including Complainant. On November 24, 2009, the Committee discussed the applicants and voted unanimously to recommend another vendor to Vending Facility #195. The successful applicant was also a member of the Committee. However, the successful applicant did not participate in the interviews of the other applicants, the Committee’s discussions, or its decision. The successful applicant was the first or second choice of all five Committee members. Complainant was ranked no higher than third on any Committee member’s ballot. On November 30, 2009, the Deputy Director of the SLA advised Complainant that another applicant had been awarded the bid to manage Vending Facility #195. Subsequently, Complainant requested an administrative review from the SLA VerDate Mar<15>2010 16:26 Jan 06, 2012 Jkt 226001 concerning the appointment of another vendor to manage Vending Facility #195. On December 21, 2009, SLA staff advised Complainant that her administrative review had been scheduled for January 10, 2010. On January 25, 2010, the SLA’s Deputy Director issued a written decision to Complainant rejecting her complaint about the selection process and the appointment of the other vendor to Vending Facility #195. On February 2, 2010, Complainant filed for a State fair hearing of her complaint regarding Vending Facility #195. The SLA held a State fair hearing on July 28, 2010. On August 12, 2010, the hearing officer issued a written recommendation to the SLA rejecting Complainant’s complaint about the appointment and selection process for Vending Facility #195. The hearing officer’s recommendation was later adopted by the SLA as its final administrative decision. Subsequently, Complainant filed with the Department a request for Federal arbitration seeking an appeal of the State fair hearing decision. A Federal arbitration panel was convened on May 5, 2011, pursuant to 20 U.S.C. 207d– 1(a). The issues as stated by the Federal arbitration panel were: (1) Whether the SLA’s final decision to select another vendor to manage Vending Facility #195, instead of Complainant, was supported by competent and substantial evidence based upon the whole record or, rather, constituted an abuse of discretion, was arbitrary and capricious or was made without statutory authority; and (2) whether the SLA’s final decision to select another blind operator to manage Vending Facility #195, instead of Complainant, unlawfully discriminated against Complainant on the basis of her physical disability or impairment. Arbitration Panel Decision After reviewing all of the testimony and evidence, the majority of the panel denied Complainant’s complaint in its entirety. Specifically, the panel majority found that the SLA’s selection of another blind vendor was supported by substantial evidence based on the entire record. The panel majority rejected Complainant’s argument that the Committee’s recommendations to the SLA were inconsistent with the Randolph-Sheppard Act and the implementing regulations. Similarly, the panel majority rejected Complainant’s argument that the SLA’s Deputy Director merely rubber stamped the Committee’s recommendations to select PO 00000 Frm 00015 Fmt 4703 Sfmt 9990 1063 another vendor for Vending Facility #195. The panel concluded that the evidence did not support Complainant’s allegation that the process used in selecting another vendor was biased or flawed. Concerning issue number 2 Complainant alleged that the SLA discriminated against her by providing the Committee information about a customer complaint concerning Complainant’s service dog wandering around her convenience store. The panel majority concluded that Complainant failed to produce any evidence that suggested that the SLA considered Complainant’s use of a service dog in making its recommendation and award of Vending Facility #195. One panel member concurred with the panel majority’s decision to deny the Complainant’s grievance in whole, but dissented from the decision on the process of awarding vending facilities by the SLA, stating that there are some potential problems with the SLA’s current bid-selection process, possibly due to the small number of blind vendors in the program. 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.gpo.gov/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 Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at this site. You may also access documents of the Department published in the Federal Register by using the article search feature at https:// www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department. Dated: January 4, 2012. Alexa Posny, Assistant Secretary for Special Education and Rehabilitative Services. [FR Doc. 2012–147 Filed 1–6–12; 8:45 am] BILLING CODE 4000–01–P E:\FR\FM\09JAN1.SGM 09JAN1

Agencies

[Federal Register Volume 77, Number 5 (Monday, January 9, 2012)]
[Notices]
[Pages 1062-1063]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-147]


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DEPARTMENT OF EDUCATION


Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice decision.

-----------------------------------------------------------------------

SUMMARY: The Department of Education (Department) gives notice that on 
August 29, 2011, an arbitration panel rendered a decision in the matter 
of Judy A. Davis-Perry v. Missouri Department of Social Services 
Rehabilitation Services for the Blind, Case no. R-S/10-1. The 
Department convened this panel after receiving a complaint filed by the 
Complainant, Judy A. Davis-Perry.

FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text 
of the arbitration panel decision from Mary Yang, U.S. Department of 
Education, 400 Maryland Avenue SW., room 5162, Potomac Center Plaza, 
Washington, DC 20202-2800. Telephone: (202) 245-6327. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service (FRS), toll-free, at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
accessible

[[Page 1063]]

format (e.g., braille, large print, audiotape, or compact disc) on 
request to the contact person listed under FOR FURTHER INFORMATION 
CONTACT.

SUPPLEMENTARY INFORMATION: Under section 6(c) of the Randolph-Sheppard 
Act (Act), 20 U.S.C. 107d-2(c), 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

    Judy A. Davis-Perry (Complainant) alleged violations by the 
Missouri Department of Social Services, Rehabilitation Services for the 
Blind, the State licensing agency (SLA) under the Act, and implementing 
regulations in 34 CFR part 395. Complainant alleged that the SLA 
improperly denied her bid to manage Vending Facility 195, a 
vending machine facility, at the Internal Revenue Service (IRS) 
Consolidation offices in Kansas City, Missouri.
    Specifically, Complainant alleged that the SLA's selection 
procedures was biased and flawed and that the SLA discriminated against 
her in selecting another bidder.
    On October 30, 2009, the SLA mailed out a bid announcement to all 
licensed blind vendors notifying them of a Level II vending opening at 
Vending Facility 195.
    On November 5, 2009, Complainant submitted her bid to manage 
Vending Facility 195.
    On November 21, 2009, the SLA's Executive Committee (Committee,) 
which had the responsibility to administer the SLA's transfer and 
promotions procedures, interviewed five applicants for Vending Facility 
195, including Complainant.
    On November 24, 2009, the Committee discussed the applicants and 
voted unanimously to recommend another vendor to Vending Facility 
195.
    The successful applicant was also a member of the Committee. 
However, the successful applicant did not participate in the interviews 
of the other applicants, the Committee's discussions, or its decision.
    The successful applicant was the first or second choice of all five 
Committee members. Complainant was ranked no higher than third on any 
Committee member's ballot.
    On November 30, 2009, the Deputy Director of the SLA advised 
Complainant that another applicant had been awarded the bid to manage 
Vending Facility 195. Subsequently, Complainant requested an 
administrative review from the SLA concerning the appointment of 
another vendor to manage Vending Facility 195.
    On December 21, 2009, SLA staff advised Complainant that her 
administrative review had been scheduled for January 10, 2010.
    On January 25, 2010, the SLA's Deputy Director issued a written 
decision to Complainant rejecting her complaint about the selection 
process and the appointment of the other vendor to Vending Facility 
195.
    On February 2, 2010, Complainant filed for a State fair hearing of 
her complaint regarding Vending Facility 195. The SLA held a 
State fair hearing on July 28, 2010.
    On August 12, 2010, the hearing officer issued a written 
recommendation to the SLA rejecting Complainant's complaint about the 
appointment and selection process for Vending Facility 195. 
The hearing officer's recommendation was later adopted by the SLA as 
its final administrative decision.
    Subsequently, Complainant filed with the Department a request for 
Federal arbitration seeking an appeal of the State fair hearing 
decision. A Federal arbitration panel was convened on May 5, 2011, 
pursuant to 20 U.S.C. 207d-1(a). The issues as stated by the Federal 
arbitration panel were: (1) Whether the SLA's final decision to select 
another vendor to manage Vending Facility 195, instead of 
Complainant, was supported by competent and substantial evidence based 
upon the whole record or, rather, constituted an abuse of discretion, 
was arbitrary and capricious or was made without statutory authority; 
and (2) whether the SLA's final decision to select another blind 
operator to manage Vending Facility 195, instead of 
Complainant, unlawfully discriminated against Complainant on the basis 
of her physical disability or impairment.

Arbitration Panel Decision

    After reviewing all of the testimony and evidence, the majority of 
the panel denied Complainant's complaint in its entirety. Specifically, 
the panel majority found that the SLA's selection of another blind 
vendor was supported by substantial evidence based on the entire 
record. The panel majority rejected Complainant's argument that the 
Committee's recommendations to the SLA were inconsistent with the 
Randolph-Sheppard Act and the implementing regulations. Similarly, the 
panel majority rejected Complainant's argument that the SLA's Deputy 
Director merely rubber stamped the Committee's recommendations to 
select another vendor for Vending Facility 195. The panel 
concluded that the evidence did not support Complainant's allegation 
that the process used in selecting another vendor was biased or flawed.
    Concerning issue number 2 Complainant alleged that the SLA 
discriminated against her by providing the Committee information about 
a customer complaint concerning Complainant's service dog wandering 
around her convenience store. The panel majority concluded that 
Complainant failed to produce any evidence that suggested that the SLA 
considered Complainant's use of a service dog in making its 
recommendation and award of Vending Facility 195.
    One panel member concurred with the panel majority's decision to 
deny the Complainant's grievance in whole, but dissented from the 
decision on the process of awarding vending facilities by the SLA, 
stating that there are some potential problems with the SLA's current 
bid-selection process, possibly due to the small number of blind 
vendors in the program.
    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.gpo.gov/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 Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at this 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at https://www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: January 4, 2012.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2012-147 Filed 1-6-12; 8:45 am]
BILLING CODE 4000-01-P
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