82 FR 18435 - Arbitration Panel Decision Under the Randolph-Sheppard Act

DEPARTMENT OF EDUCATION

Federal Register Volume 82, Issue 74 (April 19, 2017)

Page Range		18435-18436
FR Document		2017-07858

The Department of Education (Department) gives notice that, on February 14, 2014, an arbitration panel (Panel) rendered a decision in the matter of Kentucky Office of the Blind vs. Department of the Army, Fort Campbell (Case no. R-S/11-06).

Federal Register, Volume 82 Issue 74 (Wednesday, April 19, 2017)

[Federal Register Volume 82, Number 74 (Wednesday, April 19, 2017)]
[Notices]
[Pages 18435-18436]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-07858]


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DEPARTMENT OF EDUCATION


Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice of arbitration decision.

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SUMMARY: The Department of Education (Department) gives notice that, on 
February 14, 2014, an arbitration panel (Panel) rendered a decision in 
the matter of Kentucky Office of the Blind vs. Department of the Army, 
Fort Campbell (Case no. R-S/11-06).

FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text 
of the Panel decision from Donald Brinson, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 5045, Potomac Center Plaza, 
Washington, DC 20202-2800. Telephone: (202) 245-7310. If you use a 
telecommunications device for the deaf or a text telephone, call the 
Federal Relay Service, 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: The Department convened the Panel under the 
Randolph-Sheppard Act (Act), 20 U.S.C. 107d-1(b), after receiving a 
complaint from the Kentucky Office of the Blind, the State licensing 
agency (SLA) designated to administer the Randolph-Sheppard program in 
Kentucky. Under section 107d-2(c) of the Act, the Secretary publishes 
in the Federal Register a synopsis of each Panel decision affecting the 
administration of vending facilities on Federal and other property.

Background

    The Department of the Army, Fort Campbell (Army) used contractors 
through the SLA for several years because most of the Army's cooks

[[Page 18436]]

located at the base were deployed. Thus, the Army had to contract for 
cooks to provide food service to those located on the base. As the 
number of troops deployed decreased, the cooks from Fort Campbell 
returned to the base. Military personnel began to perform multiple 
tasks, including selecting the menus, preparing and cooking the food, 
ordering supplies, maintaining quality control of all food prepared and 
served, maintaining equipment, conducting headcount of soldiers served, 
and noting accountability of cash received. While these duties had been 
performed by the SLA, due to these changes, the Army no longer needed 
to have a contractor provide these services. However, the Army still 
had a need for a contractor to perform certain services because 
soldiers are precluded by Army Regulation 30-22 from performing dining 
facility attendant duties in a garrison environment.
    The Performance Work Statement outlined the duties the contractor 
would now be required to perform. According to the Panel's decision:

    [T]he contractor is to ``hire and staff of qualified personnel . 
. . provide an on-site contract manager and with full authority to 
obligate the company and be responsible for overall performance . . 
. provide all employees with uniforms . . . establish and maintain a 
comprehensive quality control plan . . . train employees . . . 
maintain certificates and records . . . operate, and clean after 
each use, mechanical vegetable peeling machine . . . requisition, 
wash, peel and cut potatoes and fruit.''

The Army Contracting Officer concluded that the required services did 
not fall within the scope of the Act.
    Because of the Army Contracting Officer's decision, the SLA filed a 
request for arbitration with the Department contending the Army 
violated the Act and its applicable regulations, in 34 CFR part 395, 
when it issued this solicitation without applying the provisions of the 
Act to the Army's source selection process. The matter was then 
submitted to the Panel.

Synopsis of the Panel Decision

    A similar issue had arisen at Fort Campbell in the late 1990s. In 
2002, an arbitration panel concluded that the services described in 
that Performance Work Statement fell within the terms of the Act. The 
Panel was asked whether the 2002 decision was binding through the 
principle of res judicata, given the similarity of issues and parties. 
The Panel concluded unanimously that the 2002 decision was not binding 
on the Panel because there had been several judicial rulings and 
pronouncements by Congress since the earlier case was decided. The 
Panel decided, however, to give that case ``respectful consideration.''
    The Army argued that the Panel should give great deference to the 
decision of the Contracting Officer. The Panel majority disagreed with 
that argument. While there was no disagreement that the Army had full 
authority to have its own cooks handle food preparation and manage the 
dining facility, the issue was whether the Army's conclusion that the 
remaining work was not covered by the Act was correct. The Panel 
determined that resolution of the issues in this case involved 
statutory interpretation, and, because the Department is charged with 
interpreting the Act, by extension, so is the Panel.
    The remaining question then was whether the Act was intended to 
apply to the discrete dining facility attendant services that were to 
be provided at the dining halls at Fort Campbell. The Panel majority 
noted that because interpretations had changed over the years, to 
understand what the Act, as it stands today, was intended to cover, it 
had to explore this history. As a result, the Panel reviewed and 
discussed the 1974 Amendments, various pronouncements from the 
Department and the Comptroller General's various court decisions, the 
relationship between the Act and the Javits-Wagner-O'Day Act (JWOD), 
and the passage of the National Defense Authorization Act of 2007 
(NDAA).
    The majority ultimately concluded the Act applies to this 
solicitation at Fort Campbell. In reaching that conclusion, the Panel 
rejected the Army's assertion that Washington State Department of 
Services for the Blind v. United States, 58 Fed. Cl. 781 (2003), was 
binding on the Panel. The Panel determined that the Washington case was 
limited to just ``busboy'' services, whereas the Fort Campbell 
solicitation also involved food handling. The Panel also discussed the 
impact of the NDAA and the interplay between the services covered by 
the Act and JWOD. In determining that the NDAA defined food services to 
include mess attendant services, the Panel concluded that this 
``impliedly indicated those services are covered by the [Act].''
    Finally, in rejecting the argument that the NDAA did not apply 
because the contract in effect at Fort Campbell was not awarded under 
the Act, the Panel concluded that the NDAA was still a ``pronouncement 
by Congress as to the coverage of the [NDAA] and is, therefore, a 
significant factor here.'' The Panel then concluded that had the Army 
complied with the earlier arbitration panel ruling in 2002, ``the 
contract for [mess attendant] services in 2006 would have been issued 
under the [Act].''
    For the reasons stated in the decision, the Panel found that the 
Army violated the Act when it issued the solicitation for Dining 
Facility Attendant Services at Fort Campbell without applying the 
provisions of the Act to the Army's source selection process. In terms 
of a remedy, the Panel recognized that the Act requires that, when a 
violation has been found, the Federal agency must ``cause such acts or 
practices to be terminated promptly and shall take such other action as 
may be necessary to carry out the decision of the panel.'' The Panel 
directed the Army to notify the current contractor that its contract 
would not be renewed at expiration and to begin negotiations with the 
SLA for services to commence upon the expiration of the current 
contract.
    One panel member concurred in part and dissented in part.
    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 
at: www.thefederalregister.org/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Portable Document Format (PDF). To use PDF you 
must have Adobe Acrobat Reader, which is available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: April 13, 2017.
Ruth E. Ryder,
Deputy Director, Office of Special Education Programs, delegated the 
duties of the Assistant Secretary for Special Education and 
Rehabilitative Services.
[FR Doc. 2017-07858 Filed 4-18-17; 8:45 am]
 BILLING CODE 4000-01-P

Federal Register / Vol. 82, No. 74 / Wednesday, April 19, 2017 / Notices 18435

Secretary, notifies the appropriate actions to end overfishing on the WCP domestic regulations to address the
fishery management council (Council) stock of bigeye tuna. relative impact of the domestic fishing
whenever it determines that overfishing NMFS has determined that South fleet on the stock, and develop
is occurring, a stock is in an overfished Atlantic blueline tilefish is still subject recommendations to the Secretary of
condition or a stock is approaching an to overfishing. A 2014 stock assessment State and Congress for international
overfished condition. determined that the stock was subject to actions to end overfishing and rebuild
overfishing (79 FR 28686, May 19, the Pacific bluefin tuna in the North
FOR FURTHER INFORMATION CONTACT:
2014). This stock was not assessed in Pacific Ocean.
Regina Spallone, (301) 427–8568. 2016, so landings were compared to the
Dated: April 14, 2017.
SUPPLEMENTARY INFORMATION: Pursuant overfishing level (OFL). Final landings
to section 304(e)(2) of the Magnuson- Karen H. Abrams,
in 2015 exceeded the OFL for this stock,
Stevens Fishery Conservation and which supports a determination of Acting Deputy Director, Office of Sustainable
Management Act (Magnuson-Stevens Fisheries, National Marine Fisheries Service.
subject to overfishing. NMFS continues
Act), 16 U.S.C. 1854(e)(2), and to work with the South Atlantic Fishery [FR Doc. 2017–07923 Filed 4–18–17; 8:45 am]
implementing regulations at 50 CFR Management Council to end overfishing. BILLING CODE 3510–22–P
600.310(e)(2) and (j)(1), NMFS, on In addition, NMFS has determined
behalf of the Secretary, must notify that South Atlantic red snapper
Councils, and publish in the Federal continues to be subject to overfishing DEPARTMENT OF EDUCATION
Register, whenever it determines that a and is in an overfished condition. A
stock or stock complex is subject to 2010 assessment determined that this Arbitration Panel Decision Under the
overfishing, overfished, or approaching stock was subject to overfishing and in Randolph-Sheppard Act
an overfished condition. an overfished condition. That AGENCY: Department of Education.
NMFS has determined that South assessment found that estimates of F
were above the MFMT and the stock ACTION: Notice of arbitration decision.
Atlantic golden tilefish is subject to
overfishing. This determination is based size was less than the minimum stock SUMMARY: The Department of Education
on the most recent stock assessment size threshold, or MSST. This latest (Department) gives notice that, on
(SEDAR 25 Update), finalized in 2016, determination is based on the most February 14, 2014, an arbitration panel
which supports a finding of subject to recent stock assessment (SEDAR 41), (Panel) rendered a decision in the
overfishing because estimates of fishing finalized in 2016, which provides no matter of Kentucky Office of the Blind
mortality (F) are above the maximum basis to change the determination that vs. Department of the Army, Fort
fishing mortality threshold, or MFMT. the stock is subject to overfishing and is Campbell (Case no. R–S/11–06).
overfished. NMFS continues to work
The South Atlantic Fishery Management FOR FURTHER INFORMATION CONTACT: You
with the South Atlantic Fishery
Council has been informed that they may obtain a copy of the full text of the
Management Council to end overfishing
must take action to end overfishing Panel decision from Donald Brinson,
and rebuild this stock.
immediately on this stock. Finally, NMFS has determined that U.S. Department of Education, 400
NMFS has determined that the Pacific bluefin tuna in the North Pacific Maryland Avenue SW., Room 5045,
Western and Central Pacific (WCP) stock Ocean continues to be subject to Potomac Center Plaza, Washington, DC
of Pacific bigeye tuna is subject to overfishing and is in an overfished 20202–2800. Telephone: (202) 245–
overfishing. This determination is based condition. A 2014 assessment 7310. If you use a telecommunications
on a 2014 stock assessment update determined that this stock was subject device for the deaf or a text telephone,
conducted by the Secretariat of the to overfishing and in an overfished call the Federal Relay Service, toll-free,
Pacific Community, and accepted by the condition (80 FR 12621, March 10, at 1–800–877–8339.
Western and Central Pacific Fisheries 2015). This latest determination is based Individuals with disabilities can
Commission. NMFS has determined that on a 2016 assessment conducted by the obtain this document in an accessible
section 304(i) of the Magnuson-Stevens International Scientific Committee for format (e.g., braille, large print,
Fishery Conservation and Management Tuna and Tuna-like Species in the audiotape, or compact disc) on request
Act (Magnuson-Stevens Act) applies North Pacific Ocean, in conjunction to the contact person listed under FOR
because (1) the overfishing of the WCP with NOAA scientists. FURTHER INFORMATION CONTACT.
stock of Pacific bigeye tuna is due NMFS has determined that section SUPPLEMENTARY INFORMATION: The
largely to excessive international fishing 304(i) of the Magnuson-Stevens Act Department convened the Panel under
pressure, and (2) the applicable regional applies because (1) the overfishing and the Randolph-Sheppard Act (Act), 20
fishery management organizations have overfished condition of Pacific bluefin U.S.C. 107d–1(b), after receiving a
inadequate measures in place to correct tuna in the North Pacific Ocean is due complaint from the Kentucky Office of
the problem. NMFS has informed the largely to excessive international fishing the Blind, the State licensing agency
Western Pacific Fishery Management pressure, and (2) there are no (SLA) designated to administer the
Council and the Pacific Fishery management measures (or efficiency Randolph-Sheppard program in
Management Council of their measures) to end overfishing under an Kentucky. Under section 107d–2(c) of
obligations for international and international agreement to which the the Act, the Secretary publishes in the
domestic management under Magnuson- United States is a party. NMFS has Federal Register a synopsis of each
Stevens Act sections 304(i) and 304(i)(2) informed the Western Pacific Fishery Panel decision affecting the
to address international and domestic Management Council and the Pacific
jstallworth on DSK7TPTVN1PROD with NOTICES

administration of vending facilities on
impacts, respectively. The Councils Fishery Management Council of their Federal and other property.
must develop recommendations for obligations for international and
domestic regulations to address the domestic management under Magnuson- Background
relative impact of the domestic fishing Stevens Act sections 304(i) and 304(i)(2) The Department of the Army, Fort
fleet on the stock, and develop to address international and domestic Campbell (Army) used contractors
recommendations to the Secretary of impacts, respectively. The Councils through the SLA for several years
State and Congress for international must develop recommendations for because most of the Army’s cooks

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Document Created: 2018-11-14 09:43:45
Document Modified: 2018-11-14 09:43:45

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice of arbitration decision.
Contact		You may obtain a copy of the full text of the Panel decision from Donald Brinson, U.S. Department of Education, 400 Maryland Avenue SW., Room 5045, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7310. If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll-free, at 1-800-877-8339.
FR Citation		82 FR 18435