Vending Facility Program for the Blind on Federal and Other Property

DEPARTMENT OF EDUCATION

Vending Facility Program for the Blind on Federal and Other

Property

AGENCY: Department of Education.

ACTION: Notice of proposed schedule of arbitration fees and expenses

under the Randolph-Sheppard Act.

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SUMMARY: The Secretary proposes a schedule of fees and expenses

associated with arbitration proceedings conducted under the Randolph-

Sheppard Act that will be paid by the Department. The schedule lists

the reasonable costs of arbitration and describes the standards by

which the Secretary will support those costs.

DATES: Comments must be received on or before October 18, 1994.

ADDRESSES: All comments concerning this proposed schedule should be

addressed to George Arsnow, U.S. Department of Education, 400 Maryland

Avenue SW., room 3230, Mary E. Switzer Building, Washington, DC 20202-

2738. Telephone: (202) 205-9317.

FOR FURTHER INFORMATION CONTACT: George Arsnow. Telephone: (202) 205-

9317. Individuals who use a telecommunications device for the deaf

(TDD) may call the Federal Information Relay Service (FIRS) at 1-800-

877-8339 between 8 a.m. and 8 p.m., Eastern time, Monday through

Friday.

SUPPLEMENTARY INFORMATION: The Randolph-Sheppard Act, 20 U.S.C. 107 et

seq., gives blind persons, who are trained and licensed by State

vocational rehabilitation agencies (called ``State licensing agencies''

or SLAs), a priority to operate vending facilities on Federal property.

The Act further provides for arbitration to resolve disputes that arise

under the program between individual vendors and SLAs and between SLAs

and Federal agencies. 20 U.S.C. 107d-1(a) and (b). For each of these

two categories of arbitrations, the Secretary authorizes the convening

of an arbitration panel upon receipt of a complaint filed by either a

vendor against an SLA or by an SLA against a Federal agency. 20 U.S.C.

107d-2(a).

The Act directs each of the parties to an arbitration to each

appoint one arbitrator (or panel member) and directs the two party-

appointed arbitrators to select a neutral chairperson. 20 U.S.C. 107d-

2(b) (1) and (2). In order to facilitate this process, the Department

sends to the parties names of potential chairpersons from the Roster of

Arbitrators maintained by the Federal Mediation and Conciliation

Service (FMCS). If the parties seek to appoint a chairperson who is not

listed on the FMCS roster, a biographical sketch of that chairperson is

to be sent to the Department. Once selected, the panel conducts a

hearing and renders a decision, which is subject to appeal and review

as a ``final agency action'' for purposes of the Administrative

Procedure Act. 20 U.S.C. 107d-2(a).

The Act, in 20 U.S.C. 107d-2(d), requires the Secretary to pay all

reasonable costs of arbitration in accordance with a schedule of fees

and expenses that the Secretary publishes in the Federal Register.

Pursuant to this requirement, the Department has continued to pay

certain costs associated with arbitration proceedings authorized by the

Secretary, but has not published the schedule referred to in the

statute.

The purpose of this notice is to propose a schedule of fees and

expenses under section 107d-2(d) of the Act. The proposed schedule

outlines the types of costs that the Secretary considers reasonable

costs of arbitration and the standards by which the Secretary will

determine the rate of payment for these costs. Generally, the Secretary

considers reasonable costs of arbitration to include the cost of

preparing the official record of arbitration proceedings, professional

fees for arbitration panel members, and food, travel, and lodging

expenses of panel members and essential witnesses. The Secretary does

not consider attorneys' fees to be part of the reasonable costs of

arbitration, but rather considers them the responsibility of each party

to the arbitration.

The Department has drawn guidance from information and data

supplied by the FMCS in formulating these proposed standards.

Executive Order 12866

Clarity

Executive Order 12866 requires each agency to write regulatory

documents that are easy to understand.

The Secretary invites comments on how to make this proposed

schedule easier to understand, including answers to questions such as

the following: (1) Are the requirements in the proposed schedule

clearly stated? (2) Does the schedule contain technical terms or other

wording that interferes with its clarity? (3) Does the format of the

schedule (grouping and order of sections, use of headings,

paragraphing, etc.) aid or reduce its clarity? Would the schedule be

easier to understand if it was divided into more (but shorter)

sections? (4) Is the description of the schedule in the ``Supplementary

Information'' section of this preamble helpful in understanding the

schedule? How could this description be more helpful in making the

schedule easier to understand? (5) What else could the Department do to

make the schedule easier to understand?

A copy of any comments that concern how the Department could make

this proposed schedule easier to understand should be sent to Stanley

M. Cohen, Regulations Quality Officer, U.S. Department of Education,

400 Maryland Avenue, SW (room 5125, FOB-6), Washington, DC 20202-2241.

Regulatory Flexibility Act Certification

The Secretary certifies that this proposed schedule would not have

a significant economic impact on a substantial number of small

entities.

Because this proposed schedule would affect only States, State

agencies, and individuals, the schedule would not have an impact on

small entities. States, State agencies, and individuals are not defined

as ``small entities'' in the Regulatory Flexibility Act.

Invitation to Comment

Interested persons are invited to submit comments and

recommendations regarding this proposed schedule.

All comments submitted in response to this proposed schedule will

be available for public inspection, during and after the comment

period, in room 3230, 330 C Street, SW, Washington, DC, between the

hours of 8:30 a.m. and 4:00 p.m., Monday through Friday of each week

except Federal holidays.

Dated: August 12, 1994.

(Catalog of Federal Domestic Assistance Number does not apply)

Richard W. Riley,

Secretary of Education.

Reasonable Costs of Arbitration Under the Randolph-Sheppard Act

The Secretary proposes that the reasonable costs of arbitration

under 20 U.S.C. 107d-2(d) are the following:

(a) Stenographic Record.

(1) General Provisions. The Department will pay the costs of the

services of the official reporter assigned to the arbitration,

including preparation of the official transcript of the hearing and six

copies thereof. The official transcript and one copy thereof must be

submitted to the Department. The remaining five copies of the

transcript must be distributed among the parties as determined by the

arbitration panel chairperson. Costs of the services of the official

reporter may not exceed the reasonable and customary costs for those

services in the locality in which the services are furnished.

(2) Cancellation. The official reporter may charge the Department

its customary fee for cancellation of an arbitration proceeding in

situations in which a proceeding is canceled within 24 hours of its

scheduled date and time.

(b) Fees of Arbitrators.

(1) Per Diem. The Department will pay a per diem fee to arbitration

panel members, who are not otherwise employed by the Federal or State

Government, for their services during the course of the arbitration.

The per diem fee to be paid by the Department must be the lesser of--

(i) The customary fee charged by the individual panel member; or

(ii) The reasonable and customary fee charged by arbitrators in the

locality where the arbitration will be held.

(2) Postponement or Cancellation within 48 hours. If a scheduled

arbitration proceeding is postponed or canceled within 48 hours of its

scheduled date and time, panel members may charge the Department--

(i) A predetermined, customary, and reasonable postponement or

cancellation fee; and

(ii) That portion of the arbitrator's per diem fee proportional to

the actual time the panel member expended in preparing for the

proceeding.

(3) Other Postponements or Cancellations. If a scheduled

arbitration proceeding is postponed or canceled more than 48 hours

prior to its scheduled date, panel members may charge the Department

only that portion of the per diem fee proportional to the actual time

expended in preparing for the proceeding.

(4) Notice. The customary per diem and predetermined fees charged

by a panel member must be included in a biographical sketch that is to

be sent to the Department following his or her appointment to the

panel.

(c) Travel, Lodging, and Meal Expenses of Arbitrators and

Witnesses.

(1) Arbitrators. Notwithstanding that the Secretary urges the

parties to appoint panel representatives from the locality in which the

dispute arose and the hearing is to be held, the Department will

reimburse the travel, lodging, and food expenses of the arbitration

panel members incurred for the purpose of attending hearings and for

the purpose of attending any pre- or post-hearing conferences that

cannot be conducted by telephone. These expenses will be reimbursed at

the rate applicable to Federal Government employees traveling on

government business to the hearing location.

The Secretary urges the two panel representatives appointed by the

parties to select a neutral chairperson from the locality in which the

dispute arose and the hearing is to be held.

(2) Witnesses. The Department will reimburse the travel, lodging,

and food expenses of witnesses for the purpose of testifying at

hearings, if the witness does not reside at the locality of the

arbitration proceeding and the testimony of the witness is deemed by

the arbitration panel chairperson to be essential to the proper

resolution of the dispute. These expenses will be reimbursed at the

rate applicable to Federal Government employees traveling on government

business to the hearing location.

(d) Responsibility of Parties. Attorneys' fees are not considered

part of the reasonable costs of arbitration supported by the

Department, but are the responsibility of each party to the

arbitration.

(Authority: 20 U.S.C. 107d-2(d))

[FR Doc. 94-20147 Filed 8-18-94; 8:45 am]

BILLING CODE 4000-01-P