FR Doc E8-21142[Federal Register: September 12, 2008 (Volume 73, Number 178)]
[Notices]
[Page 52973-52974]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12se08-45]
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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
December 5, 2007, an arbitration panel rendered a decision in the
matter of Hawaii Department of Human Services, Vocational
Rehabilitation and Services for the Blind Division v. United States
Department of Defense, Department of the Navy (Case No. R-S/06-4). 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 Hawaii
Department of Human Services, Vocational Rehabilitation and Services
for the Blind Division.
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
[[Page 52974]]
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 Hawaii Department of Human Services, Vocational Rehabilitation
and Services for the Blind Division, the State Licensing Agency (SLA)
alleged violations by the United States Department of Defense,
Department of the Navy (Navy) of the Act, and the implementing
regulations in 34 CFR part 395. Specifically, the SLA alleged the Navy
improperly denied the SLA's request to establish a Randolph-Sheppard
vending facility at three parcels of real property located at the Pearl
Harbor Naval Base. The Navy owned the parcels but leased them to
private entities as described in this notice.
In 1999, Congress gave the Navy authority to lease or convey real
and personal property in Hawaii that was not needed for Navy
operations. On June 30, 2003, the Navy entered into a lease with Fluor
Hawaii, LLC, which was terminated in April 2007, covering an area of
property at Pearl Harbor immediately adjacent to the USS Arizona
Memorial Visitor Center that is known as Halawa Landing. The lease
granted exclusive use and possession of the property for a term of 65
years and provided that the property be used solely for a support
facility for visitor attractions.
In November 2004, the lessee entered into an agreement with the
Pearl Harbor Visitor Center (PHVC) providing for the provision of
visitors services at Halawa Landing including but not limited to food,
beverage, bag storage, and visitor information. Between late 2004 and
early 2007, PHVC operated several food concessions and other visitor
services in a large white tent constructed on a portion of the Halawa
Landing property adjacent to the primary parking lot used by visitors.
A blind vendor operated a food stand at the entrance to that complex
pursuant to a concession granted by the National Park Service.
In June 2003, the Navy entered into a lease with a private party
for Ford Island, which covered certain Pearl Harbor property on which
old and underutilized airplane hangars stood. In 2006, the lessee
subleased a portion of the area to the Pacific Aviation Museum (PAM) at
Pearl Harbor. The PAM included a cafe, which sold a variety of food and
beverages.
On July 7, 1986, the Navy leased certain property near Halawa
Landing for the sole purpose of establishing a museum. Inside the
museum, known as the USS Bowfin Museum, was a hot dog cart where, in
addition to hot dogs, sandwiches, snacks, beverages, and ice cream,
some nonfood items were sold.
The SLA alleged that the three parcels of real property at the
Pearl Harbor Naval base leased by Navy to a private entity were in
violation of the Act that authorizes blind persons to operate vending
facilities on any Federal property. Navy responded that the Act did not
apply to leased property. After several informal attempts to resolve
this dispute, the SLA filed for Federal arbitration in February 2006. A
hearing on this matter was held on July 25, 2007.
The issues heard by the arbitration panel were: whether the act
applies to real property owned by Navy if leased to a private entity
and whether an arbitration panel convened under the Act can award
monetary damages.
Arbitration Panel Decision
After reviewing all of the records and hearing testimony of
witnesses, the panel ruled for the Navy. While finding the Act
ambiguous with regard to whether the priority provisions of the Act at
20 U.S.C. 107(b) applies to Federally owned property that has been
leased to a private entity, the panel concluded, based on legislative
history as well as the text of the Act and its implementing
regulations, that the priority applies only on property ``controlled,
maintained, or operated by Federal agencies.''
Specifically, the panel majority found that Congress had authorized
the Secretary of the Navy to sell or lease any property in excess of
the needs of the Navy. The Navy entered into lease agreements granting
exclusive use and possession of the leased properties. With respect to
the USS Bowfin Museum, the arbitration panel determined that, because
no cafe or cafeteria was planned for the museum, the SLA's claims
regarding the museum were moot. With respect to the Halawa Landing and
PAM properties, the majority concluded that the priority did not apply
because the Navy did not control the leased properties.
Furthermore, the panel concluded that the satisfactory site
provisions of the Act did not apply because no Federal employees used
the properties and there was not any Federal office space located
there. Based upon the foregoing, the panel ruled that the Act's
priority did not apply to these properties leased by the Navy.
Lastly, although stating that the concession area in the white tent
at Halawa Landing apparently damaged the blind vendor financially, the
panel concluded that the Act does not prohibit competition except in
instances where vending machines are in direct competition with a blind
vendor's facility, which did not occur here. In addition, the panel
concluded that the SLA would not be entitled to damages even if the
Navy violated the Act because the Act does not authorize the panel to
make damages awards. One panel member concurred with the majority
opinion and 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, 2009.
Tracy R. Justesen,
Assistant Secretary for Special Education and Rehabilitative Services.1
[FR Doc. E8-21142 Filed 9-11-08; 8:45 am]
BILLING CODE 4000-01-P