[Federal Register: March 1, 1999 (Volume 64, Number 39)]
[Notices]
[Page 9984-9985]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr99-53]
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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 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: (202) 205-9317.
Individuals who use a telecommunications device for the deaf (TDD) may
call the TDD number at (202) 205-8298.
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: (202) 219-1511
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