52850 Federal Register / Vol. 73, No. 177 / Thursday, September 11, 2008 / Notices 

can protect its interest in a facility it 

established, as well as protecting a blind 

vendor’s interest because a blind vendor 

has no right to enforce an arbitration 

decision and award favorable to the SLA 

against a federal agency. As a result of 

this failure to protect the vendor’s 

interest, the SLA became liable for 

damages that were afforded to 

complainant pursuant to the 2000 

arbitration decision and award, which 

had directed GSA to pay complainant 

for his lost earnings. The panel 

determined the amount of wages lost by 

the vendor, but then stated that the 

vendor had a duty to mitigate damages. 

Based on the following circumstances, 

the panel ruled that complainant failed 

to mitigate his damages. 

On or about August 1, 2002, the SLA 

had offered the complainant an 

opportunity to apply for another 

permanent facility without waiving his 

rights to return to the Roybal building. 

However, complainant argued that he 

lacked the financial ability to make a 

new vending facility operable. The 

panel majority rejected this argument 

based on complainant’s previous 

experience in the business enterprise 

program and the SLA’s past assistance 

to him. The majority concluded that it 

was complainant’s obligation to request 

financial assistance from the SLA to 

start a new vending facility and he 

failed to do so. Thus, because 

complainant failed to mitigate his 

damages, the panel majority concluded 

that the appropriate period for 

computing damages should end as of 

August 2002, the time the SLA offered 

complainant the opportunity to manage 

a new permanent facility. 

Accordingly, the panel majority ruled 

that the appropriate period for 

calculating damages was from December 

1, 1997 to August 1, 2002 or a period 

of 56 months. Thus, the panel majority 

ruled that compensatory damages must 

be paid to the complainant by the SLA 

within 30 days from the date of the 

panel’s decision calculated at the rate of 

$2500 per month for 56 months or 

$140,000. Also, the panel majority ruled 

that if the SLA failed to pay 

complainant within 30 days of the final 

decision, interest would be attached 

equivalent to what the National Labor 

Relations Boards computes on its 

awards of back pay. 

Additionally, the panel majority ruled 

that the SLA must give the complainant 

a permit to operate a vending facility at 

the Roybal building, if the Roybal 

building was currently part of the 

business enterprise program and 

available, or in the alternative provide 

complainant a comparable vending 

facility. This was to be accomplished 

with 90 days from the date of the 

panel’s decision. Further, the panel 

retain jurisdiction for a period not to 

exceed 90 days from the date of the 

award to resolve any issues relating to 

or compliance with the final decision 

and award by the SLA. 

One panel member dissented. 

The views and opinions expressed by 

the panel do not necessarily represent 

the views and opinions of the 

Department. 

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: September 8, 2008. 

Tracy R. Justesen, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

[FR Doc. E8–21145 Filed 9–10–08; 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 of Education 

(Department) gives notice that on May 

15, 2008, an arbitration panel rendered 

a decision in the matter of Arizona 

Department of Economic Security, 

Rehabilitation Services Administration 

v. United States Postal Service (Case No. 

R–S/06–3). This panel was convened by 

the Department under 20 U.S.C. 107d–

1(b), after the Department received a 

complaint filed by the petitioner, the 

Arizona Department of Economic 

Security, Rehabilitation Services 

Administration. 

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 

under FOR FURTHER INFORMATION

CONTACT. 

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 

The Arizona Department of Economic 

Security, Rehabilitation Services 

Administration, the State Licensing 

Agency (SLA) alleged violations by the 

United States Postal Service (USPS) of 

the Randolph-Sheppard Act (Act), and 

the implementing regulations in 34 CFR 

part 395. Specifically, the SLA alleged 

that USPS improperly denied the SLA’s 

request to establish vending facilities 

comprised of vending machines at 

postal locations in Mesa and Tucson, 

Arizona in violation of the priority 

provisions of the Act at 20 U.S.C. 

107(b). 

On October 22, 2002, USPS notified 

the SLA that the Mesa Postal Service 

was seeking a new vendor for nine 

postal locations in Mesa, Arizona. On 

October 29, 2002, the SLA informed 

USPS that it was exercising its priority 

under the Act and would be providing 

vending services to the nine Mesa postal 

locations. However, on December 16, 

2002, USPS sent the SLA a letter to 

notify them of a change in the projected 

start up date for the SLA to begin 

operating the Mesa vending locations. 

On April 22, 2003, USPS again 

notified the SLA that it was in need of 

vending food service for 15 postal 

locations in Tucson, Arizona. Following 

this notification, the SLA and USPS 

staff met on June 18, 2003. At that time, 

USPS informed the SLA that it had 

issued a directive stating that each of 

the 15 Tucson vending locations would 

have a permit and each location would 

require a separate blind vendor to 

manage the facility. 

On July 31, 2003, the SLA sent a letter 

to USPS indicating that it did not intend 


rmajette on PRODPC74 with NOTICES
Federal Register / Vol. 73, No. 177 / Thursday, September 11, 2008 / Notices 52851 

to waive the priority under the act 

regarding the 15 Tucson postal vending 

locations. Additionally, the SLA 

requested that USPS clarify in writing 

and provide a copy of the directive 

regarding USPS’s position that a 

different blind vendor must operate 

each of the 15 vending locations. 

The Postal Service contracting officer 

responded to the SLA in a letter dated 

September 18, 2003. The contracting 

officer citing Postal Service Handbook 

EL–602 (August 1994), section 331.1 

stated, ‘‘It is the Postal Service’s policy 

that a blind vendor may not be assigned 

vending machines remote from the 

location for which the permit is issued.’’

Therefore, USPS informed the SLA each 

of the 15 vending sites in Tucson for 

which a permit was issued must be 

operated by separate blind vendors 

working full-time and vending sites 

could not be combined into a single 

operation for a blind vendor. 

On August 17, 2005, the staff of the 

SLA’s Business Enterprise Program 

contacted USPS’s customer relations 

coordinator for an update on the Mesa 

vending locations. The customer service 

coordinator responded that no action 

had been taken pending the outcome of 

the SLA’s request to operate the Tucson 

vending locations. Subsequently, the 

SLA filed a request for federal 

arbitration with the Secretary of 

Education regarding this matter. A 

federal arbitration panel heard this case 

on August 23, 2007. 

The central issue heard by the 

arbitration panel was: Whether the Act 

and implementing regulations provided 

the SLA a priority to operate and 

manage vending machine routes on 

USPS property. 

Arbitration Panel Decision 

After reviewing all of the records and 

hearing testimony of witnesses, the 

panel majority ruled that vending 

locations combined into a single 

vending route are permissible under the 

Act and that current USPS policies are 

not in compliance with either the spirit 

or letter of the Act. The panel 

determined that there was nothing in 

the satisfactory site provisions in 34 

CFR 395.31(d) that would exempt a 

federal entity desiring vending services 

from the priority under the act. Further, 

the majority found that there is nothing 

in the Act or the Postal Service 

Handbook EL–602 that addresses blind 

vendors being at a vending site fulltime. The panel also found that USPS 

had not sought and received approval 

from the Secretary of Education to 

impose the requirement that blind 

vendors be on-site at USPS vending 

facilities full-time and that no similar 

restriction was imposed on private 

vending companies. 

Based upon the foregoing, the 

majority concluded USPS’s policy of 

requiring that each vending location 

have an individual permit and a 

separate blind vendor constituted a 

limitation upon the placement of a 

vending facility on federal property in 

violation of the act and implementing 

regulations at 34 CFR 349.31(b). 

Thus, the panel majority directed 

USPS to immediately terminate 

agreements with private concessionaires 

providing vending services at the Mesa 

and Tucson postal locations and to grant 

a permit(s) to the SLA to operate one or 

more facilities pursuant to the act. The 

panel also indicated that USPS should 

have the understanding that the SLA 

may choose to assign multiple postal 

locations to a single blind vendor. 

Finally, the panel majority found that 

USPS’s conduct warranted damages in 

this case. However, the majority did not 

award damages since they were not 

sought by the SLA and no individual 

blind vendor was harmed. 

One panel member dissented. 

The views and opinions expressed by 

the panel do not necessarily represent 

the views and opinions of the 

Department. 

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: September 8, 2008. 

Tracy R. Justesen, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

[FR Doc. E8–21154 Filed 9–10–08; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF EDUCATION 

Advisory Committee on Student 

Financial Assistance: Meeting 

AGENCY: Advisory Committee on 

Student Financial Assistance, 

Education. 

ACTION: Notice of open teleconference 

meeting. 

SUMMARY: This notice sets forth the 

schedule and proposed agenda of a 

forthcoming teleconference meeting of 

the Advisory Committee on Student 

Financial Assistance. Individuals who 

will need accommodations for a 

disability in order to attend the 

teleconference meeting (i.e., interpreting 

services, assistive listening devices, 

and/or materials in alternative format) 

should notify the Advisory Committee 

no later than Tuesday, September 23, 

2008 by contacting Ms. Tracy Jones at 

(202) 219–2099 or via e-mail at 

tracy.deanna.jones@ed.gov. We will 

attempt to meet requests after this date, 

but cannot guarantee availability of the 

requested accommodation. The 

teleconference site is accessible to 

individuals with disabilities. This 

notice also describes the functions of 

the Advisory Committee. Notice of this 

hearing is required under Section 

10(a)(2) of the Federal Advisory 

Committee Act. This document is 

intended to notify the general public. 

DATE AND TIME: Monday, September 29, 

beginning at 1:30 p.m. and ending at 

approximately 2 p.m. 

ADDRESSES: Office of the Advisory 

Committee on Student Financial 

Assistance, Capitol Place, 80 F Street, 

NW., Room 412, Washington, DC 

20202–7582. 

FOR FURTHER INFORMATION CONTACT: Dr. 

William J. Goggin, Executive Director, 

Advisory Committee on Student 

Financial Assistance, Capitol Place, 80 F 

Street, NW., Suite 413, Washington, DC 

20202–7582, (202) 219–2099. 

SUPPLEMENTARY INFORMATION: The 

Advisory Committee on Student 

Financial Assistance is established 

under Section 491 of the Higher 

Education Act of 1965 as amended by 

Public Law 100–50 (20 U.S.C. 1098). 

The Advisory Committee serves as an 

independent source of advice and 

counsel to the Congress and the 

Secretary of Education on student 

financial aid policy. Since its inception, 

the congressional mandate requires the 

Advisory Committee to conduct 

objective, nonpartisan, and independent 

analyses on important aspects of the 

student assistance programs under Title 

IV of the Higher Education Act. In 


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