Arbitration Panel Decision Under the Randolph-Sheppard Act, 2279-2280 [2012-749]
Download as PDF
<![CDATA[
srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 / Notices
exercise the waiver authority in
subsection (d) on the basis of the
applicability of paragraph (2) or (3) of
that subsection, only if the waiver is
made for a particular item listed in
subsection (a) and for a particular
foreign country. Subsection (d)
authorizes a waiver if the Secretary
determines that application of the
limitation ‘‘would impede the reciprocal
procurement of defense items under a
memorandum of understanding
providing for reciprocal procurement of
defense items’’ and if he determines that
‘‘that country does not discriminate
against defense items produced in the
United States to a greater degree than
the United States discriminates against
defense items produced in that
country.’’ The Secretary of Defense has
delegated the waiver authority of 10
U.S.C. 2534(d) to the Under Secretary of
Defense (Acquisition, Technology, and
Logistics).
DoD has had a Reciprocal Defense
Procurement Memorandum of
Understanding (MOU) with the UK
since 1975, most recently renewed on
December 16, 2004.
The Under Secretary of Defense
(Acquisition, Technology, and Logistics)
finds that the UK does not discriminate
against defense items produced in the
United States to a greater degree than
the United States discriminates against
defense items produced in the UK, and
also finds that application of the
limitation in 10 U.S.C. 2534 against
defense items produced in the UK
would impede the reciprocal
procurement of defense items under the
MOU.
Under the authority of 10 U.S.C. 2534,
the Under Secretary of Defense
(Acquisition, Technology, and Logistics)
has determined that application of the
limitation of 10 U.S.C. 2534(a) to the
procurement of any defense item
produced in the UK that is listed below
would impede the reciprocal
procurement of defense items under the
MOU with the UK.
On the basis of the foregoing, the
Under Secretary of Defense
(Acquisition, Technology, and Logistics)
is waiving the limitation in 10 U.S.C.
2534(a) for procurements of any defense
item listed below that is produced in the
UK. This waiver applies only to the
limitations in 10 U.S.C. 2534(a). It does
not apply to any other limitation,
including section 8016 of the DoD
Appropriations Act for Fiscal Year 2012
(Pub. L. 112–74). This waiver applies to
procurements under solicitations issued
during the period from February 1,
2012, to February 1, 2013. Similar
waivers have been granted since 1998,
VerDate Mar<15>2010
16:12 Jan 13, 2012
Jkt 226001
most recently in 2010 (75 FR 76447,
December 8, 2010).
List of Items to Which This Waiver
Applies
1. Air circuit breakers.
2. Welded shipboard anchor and
mooring chain with a diameter of four
inches or less.
3. Gyrocompasses.
4. Electronic navigation chart systems.
5. Steering controls.
6. Pumps.
7. Propulsion and machinery control
systems.
8. Totally enclosed lifeboats.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
[FR Doc. 2012–647 Filed 1–13–12; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the
Randolph-Sheppard Act
Department of Education.
Notice of decision.
AGENCY:
ACTION:
The Department of Education
(Department) gives notice that on
September 18, 2010, an arbitration panel
rendered a decision in the matter of
John Bell, et al. v. New Jersey
Commission for the Blind and Visually
Impaired, Case no. R–S/07–14.
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
format (e.g., braille, large print,
audiotape, or compact disc) by
contacting the program contact person
listed in this section.
SUPPLEMENTARY INFORMATION: This
arbitration panel was convened by the
Department under 20 U.S.C. 107d-l(a),
after receiving a complaint from the
Complainant, John Bell. 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.
SUMMARY:
PO 00000
Frm 00023
Fmt 4703
Sfmt 4703
2279
Background
John Bell (Complainant) alleged
violations by the New Jersey
Commission for the Blind and Visually
Impaired, the State licensing agency
(SLA), under the Act and implementing
regulations in 34 CFR part 395.
Complainant alleged that the SLA
violated the Act, the implementing
regulations and the New Jersey
Administrative Code concerning
Complainant’s management of a facility
comprised of laundry equipment and
vending machines at the Fairton Federal
Correction Institution (Fairton) operated
by the Federal Bureau of Prisons (BOP)
at Fairton, New Jersey.
Specifically, Complainant alleged that
the SLA unlawfully (1) entered into an
‘‘intergovernmental agreement’’ with
BOP rather than a ‘‘permit’’ for the
Fairton facility; (2) allowed BOP to
collect 15 percent of Complainant’s net
sales, as opposed to net profit; (3)
allowed BOP to improperly change the
rate charged for laundry services; (4)
failed to pay the cost of replacing
certain laundry machines in 2003 and/
or failed to reimburse Complainant for
$48,000 for the lease purchase
agreement he signed to replace the
laundry machines himself; (5) required
Complainant to pay the first $200 in
repair costs for each machine
breakdown; and (6) failed to provide
Complainant with a State fair hearing.
Complainant requested that the
arbitration panel grant the following
relief: (1) Damages of approximately
$440,000; (2) an order directing the SLA
to file an arbitration against the BOP
regarding the 15 percent that
Complainant paid to BOP; (3) a
recommendation from the panel to the
Secretary of Education that the New
Jersey Commission for the Blind and
Visually Impaired be removed as the
SLA under the Act based upon its
failure to provide Complainant with a
full State fair hearing; and (4) costs
incurred in this proceeding, including
reasonable attorney’s fees.
Complainant filed for a State fair
hearing of his complaint, which was
held on October 23, 2007. The
Administrative Law Judge (ALJ) set
January 15, 2008, as the date for the
parties to submit post-hearing briefs.
However, prior to the decision, the SLA
requested that the ALJ return the case to
it. Complainant opposed the request,
but the ALJ advised Complainant that
under New Jersey law he was required
to relinquish the case back to the SLA.
Subsequently, Complainant filed with
the Department a request for Federal
arbitration seeking an appeal of the
State fair hearing decision. A Federal
E:\FR\FM\17JAN1.SGM
17JAN1
2280
Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 / Notices
arbitration panel was convened on
December 8 and December 9, 2009.
srobinson on DSK4SPTVN1PROD with NOTICES
Synopsis of the Arbitration Panel
Decision
After reviewing all of the testimony
and evidence, the panel found that most
of the grievances were time barred,
either by operation of the 15-day time
limit set forth in the New Jersey
Administrative Code, the doctrine of
latches, or both. The panel further
determined that Complainant did not
show that the SLA had violated the Act
or the Federal and State implementing
regulations. Accordingly, the panel
majority concluded that Complainant
was not entitled to any remedy with the
exception of Complainant’s claim for
the costs, including reasonable
attorney’s fees, he incurred in the State
evidentiary hearing.
However, with respect to the State fair
hearing, the panel majority concluded
that the SLA knew, or had reason to
know, prior to the commencement of
the ALJ hearing, that Complainant’s case
would require the ALJ to interpret two
potentially conflicting Federal statutes
and, as a result, that the ALJ might lack
subject matter jurisdiction. Yet, the SLA
allowed the ALJ hearing to take place
and asked the ALJ to return the case
after Complainant had submitted his
post-hearing brief requiring significant
time and resources to no avail. Thus, the
panel majority ruled that fundamental
principles of fairness require that the
SLA reimburse Complainant for the
costs expended by Complainant in the
State fair hearing, including reasonable
attorney’s fees.
The panel also retained jurisdiction of
this matter for the sole purpose of
resolving any disputes regarding the
amount the SLA must pay Complainant
for those costs.
One panel member dissented in part
and concurred in part. This panel
member dissented from the panel’s
determination that the commission
payment was neither timely protested
by Complainant nor a violation of the
Act but concurred with the panel
majority regarding the SLA’s
reimbursement to Complainant for costs
incurred in the State fair hearing,
including reasonable attorney’s fees.
On January 11, 2011, the SLA sought
reconsideration of the portion of the
panel’s award granting Complainant the
costs he incurred in the State fair
hearing, including reasonable attorney’s
fees.
The panel agreed to consider the
SLA’s motion and granted Complainant
the opportunity to reply, which he did
on or about March 2, 2011.
VerDate Mar<15>2010
16:12 Jan 13, 2012
Jkt 226001
On March 25, 2011, the panel
conferred via conference call. After
reviewing the parties’ motions including
the legal authority cited, the panel
unanimously denied the SLA’s motion
for reconsideration on the merits and
affirmed its initial decision of
September 18, 2010, to award
Complainant his costs for the State fair
hearing, including reasonable attorney’s
fees.
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 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: January 11, 2012.
Alexa Posny,
Assistant Secretary for Special Education and
Rehabilitative Services.
[FR Doc. 2012–749 Filed 1–13–12; 8:45 am]
BILLING CODE 4000–01–P
DEPARTMENT OF EDUCATION
[Docket ID: ED–2012–OESE–0003]
Request for Information To Gather
Technical Expertise Pertaining to
Testing Integrity
Office of Elementary and
Secondary Education, Department of
Education.
ACTION: Request for information.
AGENCY:
In light of recent, high-profile
reports of misconduct by school officials
in the test administration process, the
U.S. Department of Education (‘‘the
Department’’ or ‘‘we’’) is seeking to
collect and share information about best
practices that have been used to
prevent, detect, and respond to
irregularities in academic testing. To
that end, the Department is taking
SUMMARY:
PO 00000
Frm 00024
Fmt 4703
Sfmt 4703
several steps, described below, to collect
information and gather suggestions to
assist State educational agencies (SEAs),
local educational agencies (LEAs), and
the testing-integrity-focused
organizations that service them. The
Department anticipates making use of
this information to facilitate further
dialogue and to help SEAs and LEAs
identify, share, and implement best
practices for preventing, detecting, and
investigating irregularities in academic
testing.
First, the Department is issuing this
request for information (RFI) to collect
information about the integrity of
academic testing. We pose a series of
questions to which we invite interested
members of the public to respond.
Second, the Department will host a
symposium where external experts can
engage in further discussion and probe
these issues in greater depth.
Third, the Department will publish a
document that contains a summary of
the recommendations that were
developed as a result of the RFI and the
symposium, as well as other resources
identified by external experts
participating in the symposium.
DATES: Written submissions must be
received by the Department on or before
5 p.m., Washington, DC time, on
February 16, 2012.
ADDRESSES: Submit your comments
through the Federal eRulemaking Portal
or via postal mail, commercial delivery,
or hand delivery. We will not accept
comments by fax or by email. To ensure
that we do not receive duplicate copies,
please submit your comments only one
time. In addition, please include the
Docket ID and the term ‘‘Testing
Integrity response’’ at the top of your
comments.
• Federal eRulemaking Portal: Go to
https://www.regulations.gov to submit
your comments electronically.
Information on using Regulations.gov,
including instructions for accessing
agency documents, submitting
comments, and viewing the docket, is
available on the site under ‘‘How To Use
This Site.’’
• Postal Mail, Commercial Delivery,
or Hand Delivery: If you mail or deliver
your comments, address them to Carlos
Martinez, Office of Elementary and
Secondary Education, Attention: Testing
Integrity RFI, U.S. Department of
Education, 400 Maryland Avenue SW.,
room 3W104, Washington, DC 20202–
6132.
• Privacy Note: The Department’s
policy for comments received from
members of the public (including
comments submitted by mail,
commercial delivery, or hand delivery)
E:\FR\FM\17JAN1.SGM
17JAN1
]]>Agencies
[Federal Register Volume 77, Number 10 (Tuesday, January 17, 2012)]
[Notices]
[Pages 2279-2280]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-749]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the Randolph-Sheppard Act
AGENCY: Department of Education.
ACTION: Notice of decision.
-----------------------------------------------------------------------
SUMMARY: The Department of Education (Department) gives notice that on
September 18, 2010, an arbitration panel rendered a decision in the
matter of John Bell, et al. v. New Jersey Commission for the Blind and
Visually Impaired, Case no. R-S/07-14.
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 format (e.g., braille, large print, audiotape, or compact
disc) by contacting the program contact person listed in this section.
SUPPLEMENTARY INFORMATION: This arbitration panel was convened by the
Department under 20 U.S.C. 107d-l(a), after receiving a complaint from
the Complainant, John Bell. 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
John Bell (Complainant) alleged violations by the New Jersey
Commission for the Blind and Visually Impaired, the State licensing
agency (SLA), under the Act and implementing regulations in 34 CFR part
395. Complainant alleged that the SLA violated the Act, the
implementing regulations and the New Jersey Administrative Code
concerning Complainant's management of a facility comprised of laundry
equipment and vending machines at the Fairton Federal Correction
Institution (Fairton) operated by the Federal Bureau of Prisons (BOP)
at Fairton, New Jersey.
Specifically, Complainant alleged that the SLA unlawfully (1)
entered into an ``intergovernmental agreement'' with BOP rather than a
``permit'' for the Fairton facility; (2) allowed BOP to collect 15
percent of Complainant's net sales, as opposed to net profit; (3)
allowed BOP to improperly change the rate charged for laundry services;
(4) failed to pay the cost of replacing certain laundry machines in
2003 and/or failed to reimburse Complainant for $48,000 for the lease
purchase agreement he signed to replace the laundry machines himself;
(5) required Complainant to pay the first $200 in repair costs for each
machine breakdown; and (6) failed to provide Complainant with a State
fair hearing.
Complainant requested that the arbitration panel grant the
following relief: (1) Damages of approximately $440,000; (2) an order
directing the SLA to file an arbitration against the BOP regarding the
15 percent that Complainant paid to BOP; (3) a recommendation from the
panel to the Secretary of Education that the New Jersey Commission for
the Blind and Visually Impaired be removed as the SLA under the Act
based upon its failure to provide Complainant with a full State fair
hearing; and (4) costs incurred in this proceeding, including
reasonable attorney's fees.
Complainant filed for a State fair hearing of his complaint, which
was held on October 23, 2007. The Administrative Law Judge (ALJ) set
January 15, 2008, as the date for the parties to submit post-hearing
briefs. However, prior to the decision, the SLA requested that the ALJ
return the case to it. Complainant opposed the request, but the ALJ
advised Complainant that under New Jersey law he was required to
relinquish the case back to the SLA.
Subsequently, Complainant filed with the Department a request for
Federal arbitration seeking an appeal of the State fair hearing
decision. A Federal
[[Page 2280]]
arbitration panel was convened on December 8 and December 9, 2009.
Synopsis of the Arbitration Panel Decision
After reviewing all of the testimony and evidence, the panel found
that most of the grievances were time barred, either by operation of
the 15-day time limit set forth in the New Jersey Administrative Code,
the doctrine of latches, or both. The panel further determined that
Complainant did not show that the SLA had violated the Act or the
Federal and State implementing regulations. Accordingly, the panel
majority concluded that Complainant was not entitled to any remedy with
the exception of Complainant's claim for the costs, including
reasonable attorney's fees, he incurred in the State evidentiary
hearing.
However, with respect to the State fair hearing, the panel majority
concluded that the SLA knew, or had reason to know, prior to the
commencement of the ALJ hearing, that Complainant's case would require
the ALJ to interpret two potentially conflicting Federal statutes and,
as a result, that the ALJ might lack subject matter jurisdiction. Yet,
the SLA allowed the ALJ hearing to take place and asked the ALJ to
return the case after Complainant had submitted his post-hearing brief
requiring significant time and resources to no avail. Thus, the panel
majority ruled that fundamental principles of fairness require that the
SLA reimburse Complainant for the costs expended by Complainant in the
State fair hearing, including reasonable attorney's fees.
The panel also retained jurisdiction of this matter for the sole
purpose of resolving any disputes regarding the amount the SLA must pay
Complainant for those costs.
One panel member dissented in part and concurred in part. This
panel member dissented from the panel's determination that the
commission payment was neither timely protested by Complainant nor a
violation of the Act but concurred with the panel majority regarding
the SLA's reimbursement to Complainant for costs incurred in the State
fair hearing, including reasonable attorney's fees.
On January 11, 2011, the SLA sought reconsideration of the portion
of the panel's award granting Complainant the costs he incurred in the
State fair hearing, including reasonable attorney's fees.
The panel agreed to consider the SLA's motion and granted
Complainant the opportunity to reply, which he did on or about March 2,
2011.
On March 25, 2011, the panel conferred via conference call. After
reviewing the parties' motions including the legal authority cited, the
panel unanimously denied the SLA's motion for reconsideration on the
merits and affirmed its initial decision of September 18, 2010, to
award Complainant his costs for the State fair hearing, including
reasonable attorney's fees.
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 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: January 11, 2012.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2012-749 Filed 1-13-12; 8:45 am]
BILLING CODE 4000-01-P
