Notice of arbitration panel decision under the Randolph-Sheppard Act between Alabama Department of Rehabilitation Services v. U. S. Department of Veterans Affairs, Veterans Canteen Service (Docket No. R-S/01-6)[OSERS]

[Federal Register: June 19, 2003 (Volume 68, Number 118)]
[Notices]               
[Page 36773-36774]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn03-22]                         

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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 gives notice that on August 2, 2002, an 
arbitration panel rendered a decision in the matter of Alabama 
Department of Rehabilitation Services v. U. S. Department of Veterans 
Affairs, Veterans Canteen Service (Docket No. R-S/01-6). This panel was 
convened by the U.S. Department of Education, under 20 U.S.C. 107d-
1(b), after the Department received a complaint filed by the 
petitioner, the Alabama Department of Rehabilitation Services.

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

    This dispute concerns the alleged denial by the U.S. Department of 
Veterans Affairs (DVA), Veterans Canteen Service (VCS), of a request by 
the Alabama Department of Rehabilitation Services, the State licensing 
agency (SLA), to establish Randolph-Sheppard vending facilities at DVA 
Medical Centers in Alabama, in violation of the Act (20 U.S.C. 107 et 
seq.) and the implementing regulations in 34 CFR part 395.
    A summary of the facts is as follows: In 1998 the SLA filed an 
arbitration complaint with the U.S. Department of Education. The SLA's 
complaint alleged that DVA/VCS had failed to comply with the provisions 
of the Act and implementing regulations regarding permit applications 
submitted by the SLA for four Federal properties maintained and 
operated by DVA/VCS. A Federal arbitration panel was convened to hear 
this matter and rendered a decision on October 20, 2000.
    The panel ruled that DVA/VCS had not complied with the Act and 
implementing regulations regarding the establishment of Randolph-
Sheppard vending facilities on Federal property. At the instruction of 
the arbitration panel, the SLA submitted to DVA/VCS, during the 
arbitration proceedings, permit applications requesting the 
establishment of blind vending facilities in 33 separate buildings 
located in Alabama. However, at the time of the SLA's filing of this 
second arbitration complaint, the SLA had not received a response to 
these requests.
    Later, the SLA alleges that it learned DVA/VCS had contracted with 
private companies to operate vending machines on DVA/VCS property in 
Alabama subsequent to January 1, 1975, which is in violation of the Act 
and implementing regulations. Further, the SLA also contends that it 
has never received any disbursement of vending machine income from the 
operation of these vending machines operated by DVA/VCS on Federal 
property in violation of the income-sharing provisions of the Act and 
implementing regulations.
    As a result of this dispute, the SLA requested the Secretary of 
Education to convene a Federal arbitration panel to hear this 
complaint. A panel was convened, and a hearing on this matter was held 
on April 23, 2002.

Arbitration Panel Decision

    The arbitration panel heard the following three issues: (1) Whether 
DVA/VCS had violated the Act and implementing regulations by failing to 
take action necessary to carry out the decision of the arbitration 
panel in Alabama Department of Rehabilitation Services v. Department of 
Veterans Affairs, Veterans Canteen Service, Case No. R-S/98-7; (2) 
whether DVA/VCS' failure to approve or disapprove the applications for 
permits submitted by the SLA in March 2000 to establish vending 
facilities on Federal property in Alabama was in violation of the Act 
and implementing regulations; and (3) whether the operation of vending 
machines by private companies and the receipt of vending machine income 
from those machines by DVA/VCS without sharing a percentage of the 
income with the SLA was in violation of the income-sharing provisions 
of the Act and implementing regulations.
    After considering the evidence presented, the panel made the 
following decision and award: Concerning the first issue, the panel 
concurred with the first arbitration panel's findings and award in Case 
No. R-S/98-7 in which that panel ruled that DVA/VCS had violated the 
Act. Therefore, the panel ruled that DVA/VCS should take all proper 
corrective action necessary.
    Regarding the second issue, the majority of the panel ruled that 
DVA/VCS had failed to properly respond to the applications for permits 
submitted by the SLA in March 2000. Accordingly, the panel directed 
DVA/VCS to review, investigate, and determine which permit applications 
submitted by the SLA should have been approved and then to issue those 
permits. Also, the panel ordered DVS/VCS to determine the amount of 
monies lost as the result of its failure to timely grant and issue 
those permits and to compensate the SLA with interest at the lawful 
rate.
    Finally, as to the third issue, the majority of the panel concluded 
that testimony showed that DVA/VCS performed every activity involved in 
the vending of beverages, thus establishing that DVA/VCS, not a private 
vending company, operated the vending machines. Therefore, the panel 
ruled that profits made by DVA/VCS were exempt from the vending machine 
income-sharing provisions of the Act as alleged 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 U.S. Department of Education.

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 3232, Mary E. 
Switzer Building, Washington, DC 20202-2738. Telephone: (202) 205-8536. 
If you use a telecommunications device for the deaf (TDD), you may call 
the TDD number at (202) 205-8298.
    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 in the preceding 
paragraph.

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/legislation/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

[[Page 36774]]

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.access.gpo.gov/nara/index.html.

    Dated: June 13, 2003.
Robert H. Pasternack,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 03-15415 Filed 6-18-03; 8:45 am]

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