[Federal Register: June 19, 2003 (Volume 68, Number 118)]
[Notices]               
[Page 36774-36775]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn03-23]                         

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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: The Department gives notice that on July 11, 2001, an 
arbitration panel rendered a decision in the matter of David Ramsey, et 
al. v. New Hampshire Department of Education, Division of Vocational 
Rehabilitation, Bureau of Service for the Blind and Visually Impaired 
(Docket No. R-S/99-4). This panel was convened by the U.S. Department 
of Education, under 20 U.S.C. 107d-1(a), after the Department received 
a complaint filed by the petitioner, David Ramsey, et al.

SUPPLEMENTARY INFORMATION: Under section 6(c) of 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 a competitive bidding process for the 
operation of vending machines at the roadside rest areas located on the 
interstate highway system used by the State of New Hampshire. The 
State's use of this competitive bidding process allegedly prevented 
blind vendors from operating these vending machines in violation of the 
priority provisions of the Randolph-Sheppard Act (20 U.S.C. 107 et 
seq.) and the implementing regulations in 34 CFR part 395. The State 
was represented in this arbitration proceeding by the New Hampshire 
Department of Education, Division of Vocational Rehabilitation, Bureau 
of Services for the Blind and Visually Impaired, which is the State 
licensing agency (SLA).
    A summary of the facts is as follows: In July 1985, the New 
Hampshire legislature enacted State legislation, RSA 230:30-a, which 
instituted a competitive bidding process for anyone seeking to install 
and maintain vending machines at rest area locations along New 
Hampshire's interstate highway system.
    The complainants, David Ramsey, et al., claimed that blind vendors 
had a ``right of first refusal'' before any other entity was approached 
to operate vending facilities at rest area locations on the interstate 
highway system. The complainants maintained that the right of first 
refusal resulted from the Transportation Equity Act of the 21st Century 
(TEA-21), in 23 U.S.C. 111(b), which authorizes placement of vending 
machines at rest areas located on the interstate highway system. This 
authority also provides that the State shall give priority to vending 
machines operated by the SLA under the Act. The complainants further 
alleged that the State law, RSA 230:30-a, which authorized the bidding 
process for the placement of vending machines on the interstate highway 
system, was preempted by the TEA-21, which is a Federal law.
    The SLA denied that there was a preemption issue and alleged that a 
conflict did not exist between State and Federal law in this case. The 
SLA further alleged that the Federal arbitration panel did not have 
jurisdiction concerning the issues raised by complainants. The SLA also 
maintained that the State implemented the priority provision under the 
TEA-21 by giving priority to blind vendors and awarding a vending 
contract to the SLA if it submitted the high bid or if the SLA tied for 
the high bid.

Arbitration Panel Decision

    A majority of the arbitration panel concluded that RSA 230:30-a 
resulted in the awarding of contracts to private vendors, thus 
preventing blind vendors from competing since they lacked comparable 
resources. According to the panel, although RSA 230:30-a is silent 
regarding the priority or preference to blind vendors in the 
installation and maintenance of vending machines at interstate rest 
areas, no real priority was given to blind vendors on the basis of 
breaking a tie bid in favor of blind vendors. Thus, the panel rejected 
the SLA's interpretation of the meaning of priority under the TEA-21.
    Accordingly, the panel agreed with the complainants that the 
purpose and fair interpretation of priority within section 111(b) of 
the TEA-21 required that the complainants receive an opportunity to 
operate vending machines before any private vendor was even invited to 
bid. Otherwise, RSA 230:30-a rendered the TEA-21 meaningless.
    The panel further determined that, contrary to the SLA's position, 
the panel did have the authority to rule on these issues. The panel 
stated that the grievance procedure in 20 U.S.C. 107d-1(a) does not 
contain any limitation on the authority of an arbitration panel in 
deciding disputes between blind vendors and SLAs.
    Concerning the issue of preemption of State law, the panel ruled 
that this case was not one in which State law simply supplemented 
Federal law as argued by the SLA. The panel determined that RSA 230:30-
a clearly interfered with section 111(b) of the TEA-21, because it 
frustrated the purpose of Congress, which was to provide blind people 
with realistic economic and employment opportunities.
    Finally, the panel ruled that the complainants were entitled to 
damages in the amount of full commissions payable from the time the 
complaint was filed on October 28, 1998. The panel instructed that the 
State pay to the SLA the commissions to be used to benefit the blind 
vendors. Legal fees were not awarded to either party.
    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.

FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text 
of the arbitration panel decision from Suzette E. Haynes, U.S. 
Department of Education, 400 Maryland Avenue, SW., room 3232, Mary E. 
Switzer Building, Washington, DC 20202-2738. Telephone: (202) 205-8536. 
If you use a telecommunications device for the deaf (TDD), you may call 
the TDD number at (202) 205-8298.
    Individuals with disabilities may obtain this document in an 
alternative 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

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/legislation/FedRegister/.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.



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    Note: The official version of this document is the document 
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Loretta Petty Chittum,
Acting Assistant Secretary for Special Education andRehabilitative 
Services.
[FR Doc. 03-15538 Filed 6-18-03; 8:45 am]

BILLING CODE 4000-01-P