60804 Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Notices 

implementing regulations in 34 CFR 

part 395. 

A summary of the facts is as follows: 

The Arizona Department of Economic 

Security, Rehabilitation Services 

Division, the State licensing agency 

(SLA), alleged that between December 

1995 and July 2001, Mr. Robert Kunau 

operated a vending facility at the Rio 

Salado Post Office and paid to USPS a 

10 percent commission on his gross 

sales totaling $116,684.02. 

Similarly, the SLA alleged that since 

1988 Mr. Scott Weber operated a 

vending facility at the Phoenix General 

Mail Facility (PGMF). In 1995, Mr. 

Weber assumed the operation of 

additional vending machines at PGMF. 

From October 1995 to May 2001, Mr. 

Weber also paid to USPS a 10 percent 

commission on his gross sales totaling 

$88,444.57. Both vendors alleged that 

they paid the 10 percent commission to 

USPS as required by the agency until 

they were advised by their attorney to 

cease payment. 

Arbitration Panel Decision 

The issue heard by the panel was 

whether the actions taken by USPS 

violated the Act and implementing 

regulations concerning the placement 

and operation of vending facilities at the 

Rio Salado Post Office and the Phoenix 

General Mail Facility. If there was a 

violation, the panel was asked to 

determine the appropriate remedy. 

After reviewing all of the records and 

hearing testimony of witnesses, the 

panel concluded that the Act requires 

Federal agencies to give priority to blind 

vendors in the operation of vending 

facilities on Federal properties. To 

accomplish this, Federal agencies and 

SLAs enter into permit agreements 

authorizing the operation of vending 

facilities by licensed blind vendors. 

However, the panel noted that the Act 

does not authorize Federal agencies to 

collect commissions from a blind 

vendor or the SLA without the 

authorization of the Secretary of 

Education. Moreover, Federal agencies 

are not permitted to go outside the 

Department of Education’s regulations 

and substitute a negotiated vending 

agreement in place of the permit system. 

Therefore, because USPS failed to 

obtain authorization from the Secretary 

of Education, the collection of 

commissions was a violation of the Act. 

Accordingly, the panel ruled that both 

Mr. Kunau and Mr. Weber were 

damaged by USPS’s violation of the Act 

in the amounts of $116,684.02 and 

$88,444.57, respectively. 

The panel further directed that, 

subject to any future finding by a court 

of competent jurisdiction that this order 

exceeds the panel’s authority under the 

Act, USPS must reimburse Mr. Kunau 

and Mr. Weber the amounts that they 

were damaged as a result of USPS’s 

violation of the Act. 

One panel member dissented. 

The views and opinions expressed by 

the panel do not necessarily represent 

the views and opinions of the U.S. 

Department of Education. 

Electronic Access to This Document 

You may view this document, as well 

as all other Department of Education 

documents published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF) on the Internet 

at the following site: http://www.ed.gov/ 

news/fedregister. 

To use PDF you must have Adobe 

Acrobat Reader, which is available free 

at this site. If you have questions about 

using PDF, call the U.S. Government 

Printing Office (GPO), toll free, at 1–

888–293–6498; or in the Washington, 

DC, area at (202) 512–1530. 

Note: 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 on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

Dated: October 14, 2005. 

John H. Hager, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

[FR Doc. 05–20929 Filed 10–18–05; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF EDUCATION 

Arbitration Panel Decision Under the 

Randolph-Sheppard Act 

AGENCY: Department of Education. 

ACTION: Notice of arbitration panel 

decision under the Randolph-Sheppard 

Act. 

SUMMARY: The Department gives notice 

that on October 18, 2004, an arbitration 

panel rendered a decision in the matter 

of Bert Hansen, et al. v. Nevada 

Department of Rehabilitation, Bureau of 

Services to the Blind (Docket No. R–S/ 

03–05 and 03–07 consolidated). This 

panel was convened by the U.S. 

Department of Education, under 20 

U.S.C. 107d–1(a), after the Department 

received a complaint filed by the 

petitioners, Bert Hansen, et al. 

FOR FURTHER INFORMATION CONTACT: You 

may obtain a copy of the full text of the 

arbitration panel decision from Suzette 

E. Haynes, U.S. Department of 

Education, 400 Maryland Avenue, SW., 

room 5022, Potomac Center Plaza, 

Washington, DC 20202–2800. 

Telephone: (202) 245–7374. If you use a 

telecommunications device for the deaf 

(TDD), you may call the Federal Relay 

Service (FRS) at 1–800–877–8339. 

Individuals with disabilities may 

obtain this document in an alternative 

format (e.g., Braille, large print, 

audiotape, or computer diskette) on 

request to the contact person listed in 

the preceding paragraph. 

SUPPLEMENTARY INFORMATION: Under 

section 6(c) of the Randolph-Sheppard 

Act (the 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 

This dispute concerned two separate 

complaints that were consolidated into 

one case in the interest of judicial 

economy. The complainants alleged 

violations of the Act (20 U.S.C. 107 et 

seq.), the implementing regulations in 

34 CFR part 395, and State rules and 

regulations by the Nevada Department 

of Employment, Training and 

Rehabilitation, Bureau of Services to the 

Blind and Visually Impaired, the State 

licensing agency (SLA). 

A summary of the facts in the first 

part of the complaint is as follows: On 

January 11, 2002, Mr. Bert Hansen, 

Chairman of the Nevada Committee of 

Blind Vendors, wishing to ensure that 

the 2002 election of Elected Committee 

of Blind Vendors (Committee) would be 

carried out in accordance with State 

rules and policy, wrote to the SLA on 

behalf of the Committee. 

In his letter, Mr. Hansen noted that 

the 1999 bylaws of the Committee were 

not certified as required by the Nevada 

Administrative Code, section 426.080.2. 

Mr. Hansen suggested that, since 

clarification of the 1999 bylaws was 

needed, the 1983 certified bylaws be 

used for the 2002 election process. 

However, by memorandum dated 

January 30, 2002, the SLA rejected the 

Committee’s proposal and indicated that 

the SLA would conduct its own 

Committee election. On February 24, 

2002, under the leadership of Mr. 

Hansen, the Committee held the 2002 

election. 

Subsequently, the SLA informed the 

Committee it was holding a new 

election that took place on April 7, 

2002. The complainants alleged that the 

SLA election was held without the 

participation of the Committee and that 

the individuals elected on April 7 were 

different from those elected on February 

24. The complainants further alleged 

that the April 7 election was improperly 

Federal Register / Vol. 70, No. 201 / Wednesday, October 19, 2005 / Notices 60805 

constituted under the bylaws being used 

by the SLA. 

Following the April 7 election, the 

complainants petitioned the SLA to 

conduct another election. On March 21, 

2002, the SLA denied the complainants’

petition. Subsequently, complainants 

filed for a State evidentiary hearing on 

the matter that was held on May 30, 

2002. 

Regarding the second part of the 

complaint, complainants alleged 

problems with the SLA’s administration 

of the Nevada vending facility program 

following an audit at the Hoover Dam by 

the State Legislative Counsel Bureau 

(LCB) on April 12, 2001. In particular, 

the complainants were upset with the 

audit report that indicated that high 

levels of set-aside payments were being 

assessed against the blind vendors. On 

July 28, 2001, the Committee comprised 

of the complainants voted to suspend 

set-aside payments to the SLA for July 

and August 2001. 

On October 4, 2001, the SLA, 

following State rules and regulations, 

issued to the complainants notices of 

noncompliance in making timely setaside payments. Dissatisfied with the 

noncompliance notices, the 

complainants requested a State 

evidentiary hearing that was held on 

March 29 and 30, 2002. 

On February 28, 2003, a hearing 

officer affirmed the SLA’s decision to 

deny complainants’ request for a new 

election. In that same decision, the 

hearing officer affirmed the SLA’s 

issuance of the noncompliance notices 

regarding complainants’ nonpayment of 

set-aside payments, but reversed the late 

payment penalties assessed by the SLA. 

Additionally, the hearing officer ruled 

that the Committee had actively 

participated in setting the set-aside 

payment schedule, but required the SLA 

to maintain adequate records to support 

the set-aside payments charged. The 

SLA adopted the hearing officer’s 

February 28 decision as final agency 

action, and complainants sought review 

of that decision by a Federal arbitration 

panel. 

Arbitration Panel Decision 

The issues heard by the panel were: 

(1) Whether the SLA abused its 

authority, violated the Act, 

implementing regulations, and the 

Nevada Administrative Code and the 

functions of the Committee in 

conducting a Committee election; (2) 

whether the complainants’ unilateral 

decision to withhold payment of setaside fees for the months of July and 

August 2001 violated the Act and/or 

applicable Nevada statutory law; (3) 

whether the SLA had the authority to 

compel the complainants to repay the 

set-aside payments and/or to impose 

penalties on the complainants; and (4) 

whether the SLA was properly 

administering the vending facility 

program in accordance with the Act, 

implementing regulations, and State 

rules and regulations. 

After reviewing all of the records and 

hearing testimony of witnesses, the 

panel majority ruled concerning the 

election issue that the SLA acted in 

substantial compliance with the Act and 

regulations when it conducted the 

Committee election in April 2002. 

Concerning the withholding of setaside payments, the majority of the 

panel ruled that the complainants’

withholding of set-aside payments in 

July and August of 2001 was not in 

compliance with the Act or applicable 

provisions of the Nevada Administrative 

Code. Accordingly, the panel directed 

the complainants to repay the set-aside 

payments to the SLA but without 

penalty. Regarding the question of the 

SLA’s administration of the vending 

facility program, the majority of the 

panel ruled that the SLA’s actions were 

consistent with the Act. 

One panel member dissented. 

One panel member concurred with 

the majority opinion concerning the 

election of the Committee and 

complainants’ noncompliance with the 

Act and regulations in withholding setaside payments from the SLA, but 

dissented in part regarding the 

appropriate remedy, believing that the 

complaints should repay the set-aside 

fees with penalty. 

The views and opinions expressed by 

the panel do not necessarily represent 

the views and opinions of the U.S. 

Department of Education. 

Electronic Access to This Document 

You may view this document, as well 

as all other Department of Education 

documents published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF) on the Internet 

at the following site: http://www.ed.gov/ 

news/fedregister. 

To use PDF you must have Adobe 

Acrobat Reader, which is available free 

at this site. If you have questions about 

using PDF, call the U.S. Government 

Printing Office (GPO), toll free, at 1–

888–293–6498; or in the Washington, 

DC, area at (202) 512–1530. 

Note: 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 on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

Dated: October 14, 2005. 

John H. Hager, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

[FR Doc. 05–20930 Filed 10–18–05; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Docket No. EC06–2–000] 

Brascan Power St. Lawrence River 

LLC, Erie Boulevard Hydropower L.P., 

Carr Street Generating Station, L.P., 

Brascan Power Piney & Deep Creek 

LLC, Great Lakes Holding America Co., 

BPC NY Holding Inc., Brascan Power 

New York Corp., Carr Street New York 

Holding Corp.; Notice of Filing 

October 12, 2005. 

Take notice that on October 4, 2005, 

Brascan Power St. Lawrence River LLC, 

Erie Boulevard Hydropower, L.P., Carr 

Street Generating Station, L.P., Brascan 

Power Piney & Deep Creek LLC, Great 

Lakes Holding America Co., BPC NY 

Holding Inc., Brascan Power New York 

Corp., and Carr Street New York 

Holding Corp. (collectively, Applicants) 

submitted an application pursuant to 

section 203 of the Federal Power Act for 

authorization to complete a proposed 

intra-corporate reorganization. 

Any person desiring to intervene or to 

protest this filing must file in 

accordance with Rules 211 and 214 of 

the Commission’s Rules of Practice and 

Procedure (18 CFR 385.211, 385.214). 

Protests will be considered by the 

Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceeding. Any person wishing to 

become a party must file a notice of 

intervention or motion to intervene, as 

appropriate. Such notices, motions, or 

protests must be filed on or before the 

comment date. Anyone filing a motion 

to intervene or protest must serve a copy 

of that document on the Applicant and 

all the parties in this proceeding. 

The Commission encourages 

electronic submission of protests and 

interventions in lieu of paper using the 

‘‘eFiling’’ link at http://www.ferc.gov. 

Persons unable to file electronically 

should submit an original and 14 copies 

of the protest or intervention to the 

Federal Energy Regulatory Commission, 

888 First Street, NE., Washington, DC 

20426. 

This filing is accessible on-line at 

http://www.ferc.gov, using the 

‘‘eLibrary’’ link and is available for