[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