FR Doc 2010-19947
[Federal Register: August 12, 2010 (Volume 75, Number 155)]
[Notices]               
[Page 48954-48955]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au10-43]                                      
                                    

Download: download files


----------------------------------------------

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 U. S. Department of Education (Department) gives notice 
that on February 4, 2010, an arbitration panel rendered a decision in 
the matter of Ohio Rehabilitation Services Commission, Bureau of 
Services for the Visually Impaired v. United States Department of 
Defense, Department of the Air Force, Case no. R-S/07-5. 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 Ohio 
Rehabilitation Services Commission, Bureau of Services for the Visually 
Impaired.

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), toll-free, at 1-800-877-8339.
    Individuals with disabilities may 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, 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 Ohio Rehabilitation Services Commission, Bureau of Services for 
the Visually Impaired, the State licensing agency (SLA), alleged 
violations by the United States Department of Defense, Department of 
the Air Force (Air Force) of the Randolph-Sheppard Act (Act) and

[[Page 48955]]

the implementing regulations in 34 CFR part 395. Specifically, the SLA 
alleged that the Air Force violated the Act and its implementing 
regulations concerning the food services at Wright-Patterson Air Force 
Base in Montgomery County, Ohio.
    According to the arbitration panel, the issues to be resolved were: 
(1) The Air Force's alleged failure to comply with the Act by denying 
the SLA's June 13, 2006, application for a permit to operate snack and 
beverage vending machines throughout the Wright-Patterson Air Force 
Base, and (2) the Air Force's alleged failure to properly report and 
pay the SLA or its designated vendors income from the vending machines 
at the Wright-Patterson Air Force Base pursuant to the Act and 
implementing regulations.

Arbitration Panel Decision

    After hearing testimony and reviewing all of the evidence, the 
panel majority ruled as follows:
    (1) The Air Force violated the Act by denying the SLA's vending 
machine permit application. The panel concluded that nothing in the Act 
or the implementing regulations authorizes a Federal agency to reject 
an SLA's vending permit application on the grounds that the Federal 
agency would lose income or prefer to tie the vending machine service 
to some other service. The panel declined, however, to prescribe a 
remedy for this violation based upon the requirement in 34 CFR 
395.37(d) that it is the agency's responsibility to ``cause such acts 
or practices to be terminated promptly and [to] take such other action 
as may be necessary to carry out the decision of the panel.''
    (2) The Air Force did not violate the Act or implementing 
regulations in 34 CFR 395.32 concerning the collection and distribution 
of vending machine income on Federal property by paying the two blind 
vendors at the Wright-Patterson Air Force Base fifty percent instead of 
100 percent of vending machine income. Rather, the panel majority ruled 
that the evidence presented did not show that the Air Force's vending 
machines were located in an area of proximity that posed ``direct 
competition'' to either or both of the two blind vendors.
    (3) The SLA failed to show that the Air Force's accounting of 
vending machine income varied from established procedures or that the 
vending machine income, which the Air Force reported quarterly to the 
SLA, was inaccurate.
    (4) The Air Force did not violate the Act by failing to share 
vending machine income with the SLA when the vending machine income 
from each separate building did not exceed $3,000.
    In drawing this conclusion, the panel majority noted that there was 
no evidence presented at the hearing that showed that any of the single 
buildings at the Wright-Patterson Air Force base were in close 
proximity to each other or that a majority of the Federal workers in 
any of the buildings regularly moved from one building to another in 
the course of official business during a normal work day. This is what 
is required to trigger the vending machine income sharing requirements 
under sections 395.1(h) and 395.32(i) of the regulations.
    One panel member dissented from the panel majority regarding item 
one. The panel member concluded that the Air Force included both the 
food service operations and the vending machines as a package in the 
solicitation and thus denied the SLA's permit application on the basis 
that a vending machines ``only'' permit did not exist.
    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.

    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: August 9, 2010.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2010-19947 Filed 8-11-10; 8:45 am]
BILLING CODE 4000-01-P