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Notice

Arbitration Panel Decision Under the Randolph-Sheppard Act

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Information about this document as published in the Federal Register.

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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.

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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.

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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 Start Printed Page 48955the 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.

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Dated: August 9, 2010.

Alexa Posny,

Assistant Secretary for Special Education and Rehabilitative Services.

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[FR Doc. 2010-19947 Filed 8-11-10; 8:45 am]

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