FR Doc E8-21154[Federal Register: September 11, 2008 (Volume 73, Number 177)]
[Notices]
[Page 52850-52851]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se08-57]
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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 of Education (Department) gives notice that on
May 15, 2008, an arbitration panel rendered a decision in the matter of
Arizona Department of Economic Security, Rehabilitation Services
Administration v. United States Postal Service (Case No. R-S/06-3).
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
Arizona Department of Economic Security, Rehabilitation Services
Administration.
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) at 1-800-877-8339.
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 under FOR FURTHER
INFORMATION CONTACT.
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
The Arizona Department of Economic Security, Rehabilitation
Services Administration, the State Licensing Agency (SLA) alleged
violations by the United States Postal Service (USPS) of the Randolph-
Sheppard Act (Act), and the implementing regulations in 34 CFR part
395. Specifically, the SLA alleged that USPS improperly denied the
SLA's request to establish vending facilities comprised of vending
machines at postal locations in Mesa and Tucson, Arizona in violation
of the priority provisions of the Act at 20 U.S.C. 107(b).
On October 22, 2002, USPS notified the SLA that the Mesa Postal
Service was seeking a new vendor for nine postal locations in Mesa,
Arizona. On October 29, 2002, the SLA informed USPS that it was
exercising its priority under the Act and would be providing vending
services to the nine Mesa postal locations. However, on December 16,
2002, USPS sent the SLA a letter to notify them of a change in the
projected start up date for the SLA to begin operating the Mesa vending
locations.
On April 22, 2003, USPS again notified the SLA that it was in need
of vending food service for 15 postal locations in Tucson, Arizona.
Following this notification, the SLA and USPS staff met on June 18,
2003. At that time, USPS informed the SLA that it had issued a
directive stating that each of the 15 Tucson vending locations would
have a permit and each location would require a separate blind vendor
to manage the facility.
On July 31, 2003, the SLA sent a letter to USPS indicating that it
did not intend
[[Page 52851]]
to waive the priority under the act regarding the 15 Tucson postal
vending locations. Additionally, the SLA requested that USPS clarify in
writing and provide a copy of the directive regarding USPS's position
that a different blind vendor must operate each of the 15 vending
locations.
The Postal Service contracting officer responded to the SLA in a
letter dated September 18, 2003. The contracting officer citing Postal
Service Handbook EL-602 (August 1994), section 331.1 stated, ``It is
the Postal Service's policy that a blind vendor may not be assigned
vending machines remote from the location for which the permit is
issued.'' Therefore, USPS informed the SLA each of the 15 vending sites
in Tucson for which a permit was issued must be operated by separate
blind vendors working full-time and vending sites could not be combined
into a single operation for a blind vendor.
On August 17, 2005, the staff of the SLA's Business Enterprise
Program contacted USPS's customer relations coordinator for an update
on the Mesa vending locations. The customer service coordinator
responded that no action had been taken pending the outcome of the
SLA's request to operate the Tucson vending locations. Subsequently,
the SLA filed a request for federal arbitration with the Secretary of
Education regarding this matter. A federal arbitration panel heard this
case on August 23, 2007.
The central issue heard by the arbitration panel was: Whether the
Act and implementing regulations provided the SLA a priority to operate
and manage vending machine routes on USPS property.
Arbitration Panel Decision
After reviewing all of the records and hearing testimony of
witnesses, the panel majority ruled that vending locations combined
into a single vending route are permissible under the Act and that
current USPS policies are not in compliance with either the spirit or
letter of the Act. The panel determined that there was nothing in the
satisfactory site provisions in 34 CFR 395.31(d) that would exempt a
federal entity desiring vending services from the priority under the
act. Further, the majority found that there is nothing in the Act or
the Postal Service Handbook EL-602 that addresses blind vendors being
at a vending site full-time. The panel also found that USPS had not
sought and received approval from the Secretary of Education to impose
the requirement that blind vendors be on-site at USPS vending
facilities full-time and that no similar restriction was imposed on
private vending companies.
Based upon the foregoing, the majority concluded USPS's policy of
requiring that each vending location have an individual permit and a
separate blind vendor constituted a limitation upon the placement of a
vending facility on federal property in violation of the act and
implementing regulations at 34 CFR 349.31(b).
Thus, the panel majority directed USPS to immediately terminate
agreements with private concessionaires providing vending services at
the Mesa and Tucson postal locations and to grant a permit(s) to the
SLA to operate one or more facilities pursuant to the act. The panel
also indicated that USPS should have the understanding that the SLA may
choose to assign multiple postal locations to a single blind vendor.
Finally, the panel majority found that USPS's conduct warranted
damages in this case. However, the majority did not award damages since
they were not sought by the SLA and no individual blind vendor was
harmed.
One panel member dissented.
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. 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 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: September 8, 2008.
Tracy R. Justesen,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. E8-21154 Filed 9-10-08; 8:45 am]
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