[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] ======================================================================= ----------------------------------------------------------------------- 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: (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