[Federal Register Volume 61, Number 26 (Wednesday, February 7, 1996)]
[Notices]
[Pages 4629-4630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2534]



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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