[Federal Register: February 7, 1996 (Volume 61, Number 26)]
[Notices]
[Page 4629-4630]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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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 November 11, 1994, an
arbitration panel rendered a decision in the matter of Washington State
Department of Services for the Blind v. United States Department of
Interior, Bureau of Reclamation (Docket No. R-S/91-7). This panel was
convened by the Secretary of the U.S. Department of Education pursuant
to 20 U.S.C. 107d-1(b). The Randolph-Sheppard Act (the Act) provides a
priority for blind individuals to operate vending facilities on Federal
property. Under this section of the Act, the State licensing agency
(SLA) may file a complaint with the Secretary if the SLA determines
that an agency managing or controlling Federal property fails to comply
with the Act or regulations implementing the Act. The Secretary then is
required to convene an arbitration panel to resolve the dispute.
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, SW., Room 3230, Mary
E. Switzer Building, Washington, DC 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 a synopsis of arbitration
panel decisions affecting the administration of vending facilities on
Federal and other property.
Background
In 1982, the Department of Interior through its Bureau of
Reclamation (DOI) entered into an agreement with the Washington State
Department of Services for the Blind, the SLA. This agreement provided
for the operation by the SLA of a souvenir stand inside the visitors'
arrival center at the Grand Coulee Dam in the State of Washington. In
addition to the facility inside the visitors' arrival center, the
agreement allowed the SLA to designate a blind vendor to operate
several vending machines near the entrance to the Dam's powerhouse and
to sell food and drink at a site in the visitors' parking lot.
In 1991 the DOI informed the SLA that it would retake possession of
the space occupied by the blind vendor inside the visitors' arrival
center. The SLA protested. However, DOI proceeded with the cancellation
of the permit that authorized the operation of the vending facility.
The cancellation of the permit was effective on May 9, 1991. DOI then
assumed possession of the space at the visitors' arrival center where
the blind vendor had previously sold souvenirs and informational
publications. DOI's stated reason for cancellation of the permit was
that it had entered into an agreement in April 1990 with the National
Park Service and the Colville and Spokane Indian tribes to conduct
interpretive programs at that site.
[[Page 4630]]
Subsequently, in an effort to keep the blind vendor in business at
the Grand Coulee Dam, the SLA relocated the vendor to a trailer in the
visitors' parking lot. The SLA rented and then later purchased a
trailer to carry out the activities of the vendor formerly housed at
the visitors' arrival center. The results were less than satisfactory
from the perspective of the vendor and the SLA. However, DOI further
required that, at the end of each tourist season, the SLA remove from
the Dam site the vendor's trailer and inventory.
This requirement posed a considerable expense to the SLA.
Consequently, the SLA attempted to renegotiate its permit with DOI,
requesting reinstatement of its right to operate the facility in its
former space at the visitors' arrival center. Alternatively, the SLA
requested that DOI pay for the costs of the lease termination and the
cost of relocating the vending facility. These expenses included the
trailer rental, purchase of a trailer, and related expenses arising
from the removal and storage of the trailer during the off season when
the visitors' facilities were closed (Labor Day to the following
Memorial Day).
Negotiations did not produce a resolution of the dispute, and on
April 12, 1991 the Attorney General for the State of Washington on
behalf of the SLA requested the Secretary of the U.S. Department of
Education to convene an arbitration panel to hear this complaint. The
panel was convened on March 16, 1994.
Arbitration Panel Decision
The arbitration panel at the outset of the hearing heard DOI
motions challenging the authority of the arbitration panel to hear this
dispute, to consider the assessment of monetary damages, or otherwise
to carry out the congressional mandate under the Act and its
implementing regulations, contending that DOI regulations in 43 CFR
Part 13 were controlling.
The panel denied DOI's motions concerning the arbitration panel's
jurisdiction to hear the complaint and assess damages on the grounds
that the 1974 Randolph-Sheppard Act, as amended by Congress,
specifically delegated to the Secretary of the U.S. Department of
Education the exclusive authority to establish uniform rules and
regulations to implement the Act. The panel further ruled that this
mandate renders the regulations of any other Department or Federal
instrumentality that are in conflict or at odds with those of the
Department of Education invalid and unenforceable.
During the arbitration hearing, DOI also advanced the argument that
the Act does not apply to this dispute because the visitors' arrival
center is less than 15,000 square feet and has fewer than 100 Federal
employees working in the building. However, the panel ruled that it is
clear from the 1974 amendments to the Act that Congress expanded the
definition of areas to which the Act applied to all Federal facilities.
The square footage and number of Federal employees referred to in the
regulations are relevant only if, unlike this case, the parties failed
to agree on the feasibility of operating a blind vendor's facility on
the property.
While it is true that the visitors' arrival center is less than
8000 square feet and has fewer than 20 Federal employees who work in
the center, what makes this vending operation a success is the more
than 1,500,000 visitors a year who come to the Grand Coulee
recreational area. Moreover, the panel reasoned that the events
surrounding the establishment of this vending facility made it very
clear that all parties understood that this vending location was a
Randolph-Sheppard facility and that, when DOI negotiated the permit, it
did not raise objections to the SLA that the visitors' arrival center
at the Grand Coulee Dam was not an appropriate location because it
lacked the 15,000 square feet or employed fewer than 100 Federal
employees. DOI waived its right to object under the terms of the
regulations when it agreed with the SLA to establish the vending
location pursuant to 34 CFR 395.31 (d) and (e).
The panel further ruled that the 1982 Memorandum of Agreement
signed by DOI and the SLA in its introductory paragraph clearly
recognizes that the Grand Coulee Dam location is a Randolph-Sheppard
facility and, therefore, is governed by the Act and its implementing
regulations. However, contrary to DOI's claim, the hearing records
indicate that DOI has refused to grant the SLA a permit with an
indefinite time period pursuant to the Act (20 U.S.C. 107(b)) and the
regulations (34 CFR 395.7(b)), notwithstanding the fact that the SLA
has repeatedly requested a permit to be signed in accordance with the
Act and the regulations.
Consequently, the panel ruled that to uphold the terms of the 1982
Memorandum of Agreement regarding its duration and the right of DOI to
unilaterally terminate the blind vendor's operation at the visitors'
arrival center and impose upon the SLA the costs and losses of
relocation would be in direct violation of the congressional mandate,
the Randolph-Sheppard Act, and the implementing regulations. The fact
that DOI signed an agreement with the National Park Service and the
Colville and Spokane Indian tribes in 1990 to provide information about
the area and the culture does not supplant its obligations to the SLA
and the blind vendor under the Act.
The panel award directed DOI to enter into a permit agreement with
the SLA in accordance with the Act and the regulations and to reinstate
the blind vendor in the space formerly occupied or negotiate an
alternative comparable space at the visitors' arrival center. DOI was
ordered to pay all costs and expenses incurred by the SLA as the result
of the vendor's removal from the visitors' arrival center. These
expenses included, but were not limited to, the costs of the trailer
rental, the storage and movement of the trailer and inventory, and any
other expenses incurred as the result of the removal of the blind
vendor. The panel decision stated that, in the event the SLA agrees to
an alternative location for the vendor, the location shall in all
particulars be equal in opportunities and amenities to the visitors'
arrival center and shall be provided entirely at the expense of DOI
unless otherwise agreed upon by the SLA. Further, the panel decision
directed the DOI to require that the National Park Service and the
Colville and Spokane Indian tribes cease and desist selling any goods
in competition with the blind vendor, after consultation with the SLA.
One panel member dissented.
The panel retained jurisdiction over this award with respect to the
remedial portions.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: February 1, 1996.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 96-2534 Filed 2-6-96; 8:45 am]
BILLING CODE 4000-01-P