[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.
[[Page 36775]]
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
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Regulations is available on GPO Access at: http://www.access.gpo.gov/nara/index.html
.
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