[Federal Register Volume 76, Number 75 (Tuesday, April 19, 2011)]
[Notices]
[Pages 21872-21873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9477]


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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: The Department of Education (Department) gives notice that on 
October 1, 2010, an arbitration panel rendered a decision in the matter 
of James Swartz v. Alaska Department of Labor and Workforce 
Development, Division of Vocational Rehabilitation, Case no. R-S/08-11. 
This panel was convened by the Department under 20 U.S.C. 107d-1(a), 
after the Department received a complaint filed by the petitioner, 
James Swartz.

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), 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 computer 
diskette) 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

    James Swartz (Complainant) alleged that the Alaska Department of 
Labor and Workforce Development, Division of Vocational Rehabilitation, 
the State licensing agency (SLA), violated the Act and its implementing 
regulations in 34 CFR part 395. The Complainant alleged that the SLA 
improperly administered the transfer and promotion policies and 
procedures of the Alaska Randolph-Sheppard Vending Facility Program in 
violation of the Act, the implementing regulations under the Act, and 
State rules and regulations in considering Complainant's bid to manage 
a snack bar vending facility at the Nesbett Courthouse (Nesbett), a 
State court building, located in Anchorage, Alaska.

[[Page 21873]]

    Specifically, the Complainant, a blind vendor, challenged the SLA's 
selection of a nonblind severely disabled vendor to operate the snack 
bar vending facility at Nesbett. In March 2006, the SLA issued a 
vacancy announcement for Nesbett. Both vendors applied for the Nesbett 
snack bar vending facility. At that time, the nonblind vendor had been 
operating the snack bar vending facility at Nesbett as a secondary 
vending site on a temporary basis, in addition to his primary vending 
site. Meanwhile, Complainant was operating a vending facility on 
Federal property as his primary location.
    During the selection interview process, the nonblind vendor 
indicated that he was willing to give up his current primary location 
and he intended, if selected, to operate the Nesbett snack bar vending 
facility as his primary site. At the same time, the Complainant 
indicated that he did not intend to relinquish his primary site, but 
would manage the Nesbett snack bar vending facility as a secondary 
vending facility site. After the interview and evaluation of the two 
vendors according to the SLA's transfer and promotion policies and 
procedure, the selection committee chose the nonblind vendor for the 
Nesbett snack bar vending facility.
    Complainant then requested a full evidentiary hearing from the SLA 
on this matter, which was held. On May 29, 2008, the Administrative Law 
Judge (ALJ) issued a decision ruling that (1) The Nesbett snack bar 
vending facility is not ``other'' property as defined by the Federal 
Randolph-Sheppard Act; (2) The Alaska Chance Act granted blind persons 
and persons with severe disabilities a priority when seeking a license 
to operate vending facilities on certain properties, but the Chance Act 
gave blind persons a first priority or prior right over a nonblind 
disabled person to operate a vending facility on public property; (3) 
The SLA's interpretation of its regulations that a vending license is 
site specific and a qualified vendor may only have one license to 
operate a facility is reasonable; and (4) The SLA was correct when it 
granted the nonblind vendor a license to operate the Nesbett snack bar 
vending facility as his primary site, when there was no blind vendor 
seeking to operate the Nesbett snack bar vending facility as a primary 
site.
    On July 7, 2008, the SLA issued a decision as final agency action 
adopting the ALJ's decision. Subsequently, Complainant filed with the 
Department a request for Federal arbitration seeking an appeal of the 
State fair hearing decision. On July 31, 2009, the SLA sent a letter to 
the Department stating that Complainant's request was a ``State-only 
matter'' and it did not involve the Federal Randolph-Sheppard Program 
as the ALJ had ruled that the Nesbett snack bar vending facility was 
not ``other property,'' as defined under the Act and its implementing 
regulations.
    On August 24, 2009, the Department responded to the SLA's letter 
stating that this is a Randolph-Sheppard matter under the Act and its 
implementing regulations and it is up to a Federal arbitration panel to 
decide on the issue of whether the Nesbett snack bar vending facility 
is or is not ``other property.''
    A Federal arbitration panel was convened. Prior to the arbitration 
hearing, the SLA filed with the arbitration panel a Motion for Summary 
Disposition, arguing that the Nesbett snack bar vending facility was 
State property not subject to the Act and its implementing regulation. 
Therefore, the arbitration panel lacked jurisdiction to hear the 
complaint.
    By order dated April 9, 2010, the arbitration panel concluded that 
there was insufficient evidence before the panel to determine whether 
the Nesbett snack bar vending facility was ``other property'' under the 
Act, but that there were issues of material fact requiring a hearing 
and, therefore, the panel denied the SLA's motion. The central issue 
before the arbitration panel was whether the Nesbett State courthouse 
snack bar vending facility qualified as ``other property'' within the 
meaning of the Act and its implementing regulations.

Arbitration Panel Decision

    The panel heard testimony and concluded that Federal regulations 
implementing the Act defined ``other property'' as ``property which is 
not Federal property and on which vending facilities are established or 
operated by the use of any funds derived in whole or in part, directly 
or indirectly, from the operation of vending facilities on any Federal 
property.'' See 34 CFR 395.1(n).
    Then, the panel determined that in order for Complainant's claim to 
prevail, he must prove that the Nesbett snack bar vending facility was 
established or operated with funds derived directly or indirectly from 
the operation of vending facilities on Federal property. If Complainant 
was able to meet that burden, the SLA would concede that the Act 
applied to the Nesbett snack bar vending facility and the Complainant 
would be entitled to the priority in operating the Nesbett snack bar 
vending facility over the claim of the nonblind severely disabled 
vendor.
    After reviewing the entire record, the panel found that the 
evidence presented at the arbitration hearing demonstrated that the 
Nesbett State courthouse snack bar vending facility was not established 
or operated with any funds derived directly or indirectly from the 
operation of vending facilities on Federal property. Thus, the 
arbitration panel ruled that the Nesbett State courthouse was not 
``other property'' subject to the Randolph-Sheppard Act and its 
implementing regulations and, therefore, the SLA's decision did not 
violate the Act. Accordingly, the arbitration panel denied 
Complainant's Federal arbitration appeal.
    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 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: http://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.

    Dated: April 14, 2011.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2011-9477 Filed 4-18-11; 8:45 am]
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