99-4888. Arbitration Panel Decision Under the Randolph-Sheppard Act

[Federal Register Volume 64, Number 39 (Monday, March 1, 1999)]
[Notices]
[Pages 9984-9985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4888]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that on December 18, 1997, an 
arbitration panel rendered a decision in the matter of Melvin 
Barrineau, et al. v. South Carolina Commission for the Blind (Docket 
No. R-S/96-7). This panel was convened by the U.S. Department of 
Education pursuant to 20 U.S.C. 107d-1(a), upon receipt of a complaint 
filed by petitioners, Melvin Barrineau, et al.

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, 400 Maryland Avenue, SW, Room 3230, Mary E. 
Switzer Building, Washington DC 20202-2738. Telephone: [phone]. 
Individuals who use a telecommunications device for the deaf (TDD) may 
call the TDD number at [phone].
    Individuals with disabilities may obtain this document in an 
alternate 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

    Anyone may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or 
portable document format (pdf) on the World Wide Web at either of the 
following sites:

http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html

To use the pdf you must have the Adobe Acrobat Reader Program with 
Search, which is available free at either of the previous sites. If you 
have questions about using pdf, call the U.S. Government Printing 
Office toll free at 1-888-293-6498.
    Anyone may also view these documents in text copy only on an 
electronic bulletin board of the Department. Telephone: [phone] 
or, toll free, 1-800-222-4922. The documents are located under Option 
G--Files/Announcements, Bulletins and Press Releases.

    Note: The official version of a document is the document 
published in the Federal Register.

SUPPLEMENTARY INFORMATION: Pursuant to 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 distribution of vending machine income 
generated by non-blind operated vending machines to licensed blind 
vendors who operate separate facilities at the Department of Energy's 
(DOE) Savannah River site in South Carolina. Each of these separate 
facilities is a route comprised solely of vending machines located at 
different buildings.
    Pursuant to the Act in 20 U.S.C. 107d-3, DOE annually distributed 
50 percent of the vending machine income from the non-blind operated 
vending machines to the South Carolina Commission for the Blind, the 
State licensing agency (SLA). The SLA used the income, in accordance 
with the Act, to benefit all licensed blind vendors in the South 
Carolina Randolph-Sheppard Vending Facility Program. None of the income 
was distributed to any of the licensed vendors at the DOE Savannah 
River site. The SLA alleged that, because of its size (approximately 
320 square miles) and configuration, the DOE Savannah River site should 
be treated as more than one Federal property for the purposes of 
distributing vending machine income. On the other hand, the 
complainants' position was that the Savannah River site should be 
treated as a single Federal property. Therefore, the complainants 
alleged that the SLA was in violation of the Act by not distributing 
the income from vending machines to the blind vendors on the Federal 
property.
    The complainants requested and received a full evidentiary hearing, 
which was held on January 22, 1996. The hearing officer issued a 
decision on March 5, 1996, that the dispute depended upon an 
interpretation of Federal statutory or regulatory requirements or 
agency policy, so the hearing officer had no jurisdiction over the 
dispute.
    Subsequently, the complainants requested that an arbitration panel 
be convened to hear the dispute. The panel was convened on August 26 
and 27, 1997.

Arbitration Panel Decision

    The following issues were before the arbitration panel: (1) Should 
the Savannah River site be considered a single ``Federal property'' as 
defined by 20 U.S.C. 107e(3) for the purpose of distribution of vending 
machine income under 20 U.S.C. 107d-3(a)? (2) Should the South Carolina 
Commission for the Blind be allowed to interpret clear and unambiguous 
statutory and regulatory language to its benefit, and should the 
Rehabilitation Services Administration (RSA) be allowed to interpret 
clear and unambiguous statutory and regulatory language differently 
from case to case? (3) Does vending machine income from non-Randolph-
Sheppard vendors on Federal property accrue to blind vendors operating 
on that property regardless of the property's size or the apparent 
degree of competition?
    The arbitration panel referred to the legislative history of the 
1974 Amendments to the Act in making its decision. The panel found that 
Congress provided specific guidance to the Commissioner of RSA in the 
determination, on a case-by-case basis, of what ceiling should be 
imposed on income to blind vendors from vending machines not a part of 
the vendor's facility. According to the legislative history, the 
following factors should be taken into account: Whether an additional 
blind vendor might be installed on the property. How much vending 
machine income is involved. The current income of the licensee, 
including the adequacy of that income to meet the vendor's needs. The 
age and length of service of the blind vendor. The panel applied each 
of these factors to the facts in this case.

[[Page 9985]]

    The panel further found, in examining the Act, regulations, and 
preamble to the regulations, that the term ``Federal property'' was 
used interchangeably with the words ``building, location, and 
premises.'' See 20 U.S.C. 107a(d) and 34 CFR 395.31. Therefore, the 
majority of the panel reasoned that the interpretation of the term 
``Federal property'' should not be so convoluted as to result in the 
provision of a windfall of other unassigned vending machine income 
being distributed to the blind vendors operating vending routes at the 
Savannah River site. The majority of the panel reasoned further that 
for the purposes of the Act the Savannah River site is no more a single 
Federal property than the District of Columbia.
    In addition, the panel took into account the decision of the 
Commissioner of RSA that the SLA could treat the Savannah River site as 
more than one Federal property. The panel stated that this RSA policy 
should be given deference as the Commissioner is charged by Congress 
with the direct national administration, policy, and management 
responsibility for the Act.
    For the foregoing reasons, the majority of the arbitration panel 
concluded that--(1) neither the Act, the regulations promulgated under 
it, nor any decision by an arbitration panel or court compels the 
Savannah River site to be treated as a single Federal property for the 
purposes of the Randolph-Sheppard Act; (2) the blind vendor routes at 
the Savannah River site constitute separate and distinct Federal 
properties; (3) to find otherwise would constitute a distortion of the 
provisions and underlying purpose of the Randolph-Sheppard Act; and (4) 
to allocate unassigned vending income to the complainants in this case 
would be an unanticipated windfall to them.
    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.

    Dated: February 22, 1999.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 99-4888 Filed 2-26-99; 8:45 am]
BILLING CODE 4000-01-P