Arbitration Panel Decision Under the Randolph-Sheppard Act, 4288-4289 [2012-1822]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 77, Number 18 (Friday, January 27, 2012)]
[Notices]
[Pages 4288-4289]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1822]


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DEPARTMENT OF EDUCATION


Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice of decision.

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SUMMARY: The Department of Education (Department) gives notice that on 
August 29, 2011, an arbitration panel rendered a decision in the matter 
of the Oregon Commission for the Blind v. United States Department of 
Veterans Affairs, Case no. R-S/09-2. This panel was convened by the 
Department under the Randolph-Sheppard Act (Act) after the Department 
received a complaint filed by the Oregon Commission for the Blind.

FOR FURTHER INFORMATION CONTACT: You can obtain a copy of the full text 
of the arbitration panel decision from Mary Yang, U.S. Department of 
Education, 400 Maryland Avenue SW., room 5162, Potomac Center Plaza, 
Washington, DC 20202-2800. Telephone: (202) 245-6327. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service (FRS), toll-free, at 1-(800) 877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or compact 
disc) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: Under section 6(c) of 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 Oregon Commission for the Blind (Complainant) alleged the 
United States Department of Veterans Affairs (DVA) violated the Act and 
its implementing regulations in 34 CFR part 395 when it denied 
Complainant's February 5, 2009, permit application to operate vending 
machines at the Southern Oregon Rehabilitation Center and Clinic 
(Clinic) in White City, Oregon.
    On September 28, 2009, Complainant contacted the DVA requesting 
that it

[[Page 4289]]

process Complainant's permit application. On December 9, 2009, DVA's 
Regional Counsel denied Complainant's request to process the permit 
application.
    The DVA's position was that it properly denied the Complainant's 
application for two reasons. One, the Clinic did not support a vending 
facility because of its scattered buildings, and two, the DVA was not 
obligated to ensure the Clinic supported a vending facility. 
Specifically, the DVA's position was that the regulations requiring a 
satisfactory site or sites for the location and operation of a vending 
facility by a blind vendor under certain circumstances did not apply to 
the Clinic because the DVA has operated the clinic since 1949 and its 
buildings contain fewer than 15,000 square feet of interior space and 
house less than 100 Federal employees during normal working hours.
    Complainant filed a request for Federal arbitration with the 
Department. A hearing on this matter was held on April 13 and 14, 2011. 
The issue as determined by the arbitration panel was ``whether the 
Department of Veterans Affairs violated the Randolph-Sheppard Act by 
denying the request to process the permit application of the Oregon 
Commission for the Blind for a permit to operate the Clinic vending 
machines.''

Arbitration Panel Decision

    After reviewing all of the testimony and evidence, the panel found 
that the Clinic is a single facility and that its vending machines are 
part and parcel of that facility. The panel noted that the parties' 
differing interpretations stem from the fact that regulations in 34 
CFR, part 395, do not specifically address a State licensing agency's 
(SLA's) permit application covering a building that was not new or 
renovated after January 1, 1975. The panel determined that, in cases of 
statutory ambiguity, ``regulations must be interpreted in a way that 
will serve the objectives of the statute and reasonably be consistent 
with the statute.''
    The panel first determined that the purpose of the Act clearly is 
to enlarge economic opportunities of the blind. The panel then 
recognized that section 395.31 of the regulations attempts to implement 
this statutory purpose through the satisfactory site requirements. The 
panel also considered the last sentence in 395.31(e) to be relevant, 
although it did not apply directly to the facts in this case. This 
section provides that nothing in section 395.31 precludes an SLA and a 
Federal property managing department from agreeing to a vending 
facility even if the site does not meet minimum requirements under the 
satisfactory site provisions.
    The panel found that the DVA's position of strictly interpreting 
the regulations ``contradicts section 107 [of the Act] by restricting 
and thwarting opportunities for the blind.'' Accordingly, the panel 
found that: (1) The priority provisions of the Randolph-Sheppard Act 
applied to the Clinic; (2) The DVA improperly denied Complainant's 
application for a permit to operate vending machines at the Clinic; and 
(3) the existing Clinic vending machines are not exempted from the 
Award and Order.
    One panel member dissented. This panel member found that the Clinic 
buildings constructed or substantially modified after January 1, 1975, 
are exempt from the Randolph-Sheppard Act by application of the minimum 
standards of 34 CFR 395.31(d). This panel member also determined that 
the remaining Clinic buildings existing on January 1, 1975, that were 
not substantially renovated since that date are exempt from the 
priority provisions of the Act. Thus, the DVA was justified in 
declining Complainant's application for a permit to place vending 
machines at the Clinic.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the Department.
    Electronic Access to This Document: 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 via the Federal Digital System 
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by the Department.

    Dated: January 24, 2012.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2012-1822 Filed 1-26-12; 8:45 am]
BILLING CODE 4000-01-P