[Federal Register Volume 62, Number 69 (Thursday, April 10, 1997)]
[Notices]
[Pages 17602-17603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9182]
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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.
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SUMMARY: Notice is hereby given that on August 30, 1996, an arbitration
panel rendered a decision in the matter of The State of Nevada, Bureau
of Services to the Blind v. U.S. Department of Interior, Bureau of
Reclamation (Docket No. R-S/95-3). This panel was convened by the U.S.
Department of Education pursuant to 20 U.S.C. 107d-1(b), upon receipt
of a complaint filed by the State of Nevada, Bureau of Services to the
Blind.
FOR FURTHER INFORMATION CONTACT: A copy of the full text of the
arbitration panel decision may be obtained from George F. Arsnow, U.S.
Department of Education, 600 Independence Avenue, S.W., Room 3230, Mary
E. Switzer Building, Washington, D.C. 20202-2738. Telephone: (202) 205-
9317. Individuals who use a telecommunications device for the deaf
(TDD) may call the TDD number at (202) 205-8298.
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20
U.S.C. 107d-2(c)), the Secretary publishes in the Federal Register a
synopsis of arbitration panel decisions affecting the administration of
vending facilities on Federal and other property.
Background
The State of Nevada, Bureau of Services to the Blind, the State
licensing agency (SLA), alleged that the Department of Interior, Bureau
of Reclamation (Reclamation) violated the Randolph-Sheppard Act (the
Act), pursuant to 20 U.S.C. 107 et seq. and implementing regulations in
34 CFR Part 395.
The SLA established three vending facilities under permit at the
Hoover Dam near Boulder City, Nevada. Two of the vending facilities
(the Hoover Dam Snacketeria and the Nevada Lookout Point, which is also
known as the Hoover Dam Store) were established in 1981. The third
location, known as the Arizona Lookout Point, was established in 1982.
The SLA's allegations are as follows: Reclamation notified the SLA
of its intention to terminate the permits of the three facilities.
Reclamation then sent the SLA, for its approval, a Special Use
Agreement limited to 10 years and requiring the blind vendors to pay a
fee of 10 percent of the gross sales in addition to rent.
Subsequently, the SLA was informed by Reclamation that it would
solicit open bids for concessions at the Hoover Dam if the SLA did not
sign the Special Use Agreement. In addition, the SLA discovered in
January 1995 that Reclamation had operated vending machines at the
Hoover Dam independently of the blind vendors since January 1, 1975.
Reclamation had never paid the SLA vending machine income as required
under the Act.
Conversely, Reclamation alleged as follows: The Randolph-Sheppard
Act does not require vending facilities in the parking ramp or the
Visitors Center and, therefore, the SLA may operate vending facilities
at this site only upon terms that are mutually agreeable. Further, the
Act does not require Reclamation to pay for alleged relocation and
other costs attendant to any move that might occur. In addition,
Reclamation is not responsible for more than 30 percent of any vending
revenues at the Hoover Dam because the Visitors Center and parking ramp
would house fewer than
[[Page 17603]]
100 Federal employees during normal working hours.
On March 6, 1996, the SLA filed a request with the Secretary of
Education to convene an arbitration panel pursuant to the Act and
regulations.
On January 23 and 24, 1996, an arbitration hearing was held
concerning the SLA's charges of alleged violations of the Act and
regulations by Reclamation. The issues heard by the panel were--(1)
Whether Reclamation was responsible for certain relocation costs of two
vending facilities at the Hoover Dam; (2) whether Reclamation was
required to provide a suitable site to blind vendors in the newly
constructed parking garage or Visitors Center at the Hoover Dam and to
pay for relocation costs, architectural fees, and other associated
costs; (3) whether Reclamation is required to comply with the vending
machine income-sharing provisions of the Act and implementing
regulations; and (4) whether the SLA lost its right to claim income
from vending machines based upon waiver, estoppel, or laches?
Arbitration Panel Decision
The majority of the Arbitration Panel found that, while Reclamation
was not responsible for relocation costs, it was nevertheless
responsible for providing suitable sites to the blind licensees
operating the Hoover Dam Store and the Hoover Dam Snacketeria in the
newly constructed facility under the existing indefinite permits,
without additional payments of rent and commissions on sales to
Reclamation. The panel stated that Reclamation may not require, as a
condition of continuing or establishing a vending facility in the
parking ramp or at the Arizona Lookout, the payment of commissions on
sales, rent, or other charges not included in the indefinite permit,
nor can Reclamation require the SLA or the vendors to sign any time-
limited contract, special use agreement, or other document of this
kind.
The panel concluded that to require the SLA to pay rent and
commissions on sales would be a violation of 34 CFR 395.31(d) and would
be inconsistent with the ruling in State of Minnesota, Department of
Jobs and Training v. Riley, 18 Fd.3rd 606 (8th Cir. 1994).
The panel further found that Reclamation will move, at its expense,
the stock and equipment owned by the blind licensees operating the
Hoover Dam Snacketeria and the Hoover Dam Store from the temporary
facilities to the new location in the parking ramp and provide space
consistent with discussions held with the SLA. The SLA will bear the
responsibility of the cost to complete the internal space.
In addition, the panel ruled that pursuant to 34 CFR 395.32 (a) and
(d) Reclamation is liable to the SLA for 30 percent of all vending
machine income derived since January 2, 1975, from the machines located
inside the Hoover Dam. Therefore, Reclamation will identify and account
for the revenues earned since that date that are owed.
One panel member dissented from the majority opinion.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: April 4, 1997.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 97-9182 Filed 4-9-97; 8:45 am]
BILLING CODE 4000-01-P
