PART 395-VENDING FACILITY PROGRAM FOR THE BLIND ON FEDERAL AND OTHER PROPERTY
Subpart B-The State Licensing Agency
Subpart C-Federal Property Management
AUTHORITY: Sec. 2, 49 Stat. 1559, as amended; 20 U.S.C. 107a. SOURCE: 42 FR 15802, Mar. 23, 1977, unless otherwise noted. Redesignated at 45 FR 77369, Nov. 21, 1980, and further redesignated at 46 FR 5417, Jan. 19, 1981.
Subpart A-Definitions <Return to TOC>
Unless otherwise indicated in this part, the terms below are defined as follows:
(b) "Blind licensee" means a blind person licensed by the State licensing agency to operate a vending facility on Federal or other property.
(c)
"Blind person" means a person who, after examination by a physician skilled
in diseases of the eye or by an optometrist, whichever such person shall
select, has been determined to have
2. An equally disabling loss of the visual field
as evidenced by a limitation to the field of vision in the better eye to
such a degree that its widest diameter subtends an angle of no greater
than 20 degrees.
(e) "Secretary" means the Secretary of the Rehabilitation Services Administration.
(f) "Direct competition" means the presence and operation of a vending machine or a vending facility on the same premises as a vending facility operated by a blind vendor, except that vending machines or vending facilities operated in areas serving employees the majority of whom normally do not have direct access (in terms of uninterrupted ease of approach and the amount of time required to patronize the vending facility) to the vending facility operated by a blind vendor shall not be considered to be in direct competition with the vending facility operated by a blind vendor.
(g) "Federal property" means any building, land, or other real property owned, leased, or occupied by any department, agency or instrumentality of the United States (including the Department of Defense and the United States Postal Service), or any other instrumentality wholly owned by the United States, or by any department or agency of the District of Columbia or any territory or possession of the United States.
(h) "Individual location installation or facility" means a single building or a self-contained group of buildings. In order for two or more buildings to be considered to be a self-contained group of buildings, such buildings must be located in close proximity to each other, and a majority of the Federal employees housed in any such building must regularly move from one building to another in the course of official business during normal working days.
(i) "License" means a written instrument issued by the State licensing agency to a blind person, authorizing such person to operate a vending facility on Federal or other property.
(j) "Management services" means supervision, inspection, quality control, consultation, accounting, regulating, in-service training, and other related services provided on a systematic basis to support and improve vending facilities operated by blind vendors. "Management services" does not include those services or costs which pertain to the on-going operation of an individual facility after the initial establishment period.
(k) "Net proceeds" means the amount remaining from the sale of articles or services of vending facilities, and any vending machine or other income accruing to blind vendors after deducting the cost of such sale and other expenses (excluding set-aside charges required to be paid by such blind vendors).
(l) "Nominee" means a nonprofit agency or organization designated by the State licensing agency through a written agreement to act as its agent in the provision of services to blind licensees under the State's vending facility program.
(m) "Normal working hours" means an eight hour work period between the approximate hours of 8:00 a.m., to 6:00 p.m., Monday through Friday.
(n) "Other property" means property which is not Federal property and on which vending facilities are established or operated by the use of any funds derived in whole or in part, directly or indirectly, from the operation of vending facilities on any Federal property.
(o) "Permit" means the official approval given a State licensing agency by a department, agency or instrumentality in control of the maintenance, operation, and protection of Federal property, or person in control of other property, whereby the State licensing agency is authorized to establish a vending facility.
(p) "Program" means all the activities of the licensing agency under this part related to vending facilities on Federal and other property.
(q) "Satisfactory site" means an area fully accessible to vending
facility patrons and having:
2. Sufficient electrical, plumbing, heating, and
ventilation outlets for the location and operation of a vending facility
in accordance with applicable health laws and building codes.
(r) "Secretary" means the Secretary of Education.
(s) "Set-aside funds" means funds which accrue to a State licensing agency from an assessment against the net proceeds of each vending facility in the State's vending facility program and any income from vending machines on Federal property which accrues to the State licensing agency.
(t) "State" means a State, territory, possession, Puerto Rico, or the District of Columbia.
(u) "State vocational rehabilitation agency" means that agency in the State providing vocational rehabilitation services to the blind as the sole State agency under a State plan for vocational rehabilitation services approved pursuant to the provisions of the Rehabilitation Act of 1973 (29 U.S.C., ch. 16).
(v) "State licensing agency" means the State agency designated by the Secretary under this part to issue licenses to blind persons for the operation of vending facilities on Federal and other property.
(w) "United States" includes the several States, territories, and possessions of the United States, Puerto Rico, and the District of Columbia.
(x) "Vending facility" means automatic vending machines, cafeterias, snack bars, cart service, shelters, counters, and such other appropriate auxiliary equipment which may be operated by blind licensees and which is necessary for the sale of newspapers, periodicals, confections, tobacco products, foods, beverages, and other articles or services dispensed automatically or manually and prepared on or off the premises in accordance with all applicable health laws, and including the vending or exchange of changes for any lottery authorized by State law and conducted by an agency of a State within such State.
(y) "Vending machine", for the purpose of assigning vending machine income under this part, means a coin or currency operated machine which dispenses articles or services, except that those machines operated by the United States Postal Service for the sale of postage stamps or other postal products and services, machines providing services of a recreational nature, and telephones shall not be considered to be vending machines.
(z) "Vending machine income" means receipts (other than those of a blind vendor) from vending machine operations on Federal property, after deducting the cost of goods sold (including reasonable service and maintenance costs in accordance with customary business practices of commercial vending concerns, where the machines are operated, serviced, or maintained by, or with the approval of, a department, agency, or instrumentality of the United States, or commissions paid (other than to a blind vendor) by a commercial vending concern which operates, services, and maintains vending machines on Federal property for, or with the approval of, a department, agency, or instrumentality of the United States.
(bb) "Vocational rehabilitation
services" means those services as defined in SS 1361.1(ee) (1) and (2) of
this chapter.
Subpart B-The State Licensing Agency
395.2 Application for
designation as a State licensing agency; general.
<Return to TOC>
(b) Such application shall be:
(2) Approved by the
chief executive of the State; and
(3) Transmitted over the signature
of the administrator of the State agency making application.
395.3 Application for designation as State licensing agency; content. <Return to TOC>
2. The State licensing agency's organization for
carrying out the program, including a description of the methods for
coordinating the State's vending facility program and the State's
vocational rehabilitation program, with special reference to the provision
of such post-employment services necessary to assure that the maximum
vocational potential of each blind vendor is achieved;
3. The
policies and standards to be employed in the selection of suitable
locations for vending facilities;
4. The methods to be used to ensure
the continuing and active participation of the State Committee of Blind
Vendors in matters affecting policy and program development and
administration;
5. The policies to be followed in making suitable
vending facility equipment and adequate initial stock available to a
vendor;
6. The sources of funds for the administration of the
program;
7. The policies and standards governing the relationship of
the State licensing agency to the vendors; including their selection,
duties, supervision, transfer, promotion, financial participation, rights
to a full evidentiary hearing concerning a State licensing agency action,
and, where necessary, rights for the submittal of complaints to an
arbitration panel;
8. The methods to be followed in providing
suitable training, including on-the-job training and, where appropriate,
upward mobility training, to blind vendors;
9. The arrangements made
or contemplated, if any, for the utilization of the services of any
nominee under SS 395.15; the agreements therefore and the service, to be
provided; the procedures for the supervision and control of the services
provided by such nominee and the methods used in evaluating services
received, the basis for remuneration, and the fiscal controls and
accounting procedures;
10. The arrangements made or contemplated, if
any, for the vesting in accordance with the laws of the State, of the
right, title to, and interest in vending facility equipment or stock
(including vending machines), used in the program, in a nominee to hold
such right, title to, and interest for program purposes; and
11. The
assurances of the State licensing agency that it will:
(ii) Take effective action, including the
termination of licenses, to carry out full responsibility for the
supervision and management of each vending facility in its program in
accordance with its established rules and regulations, this part, and
the terms and conditions governing the permit,
(iii) Submit promptly
to the Secretary for approval a description of any changes in the legal
authority of the State licensing agency, its rules and regulations,
blind vendor agreements, schedules for the setting aside of funds,
contractual arrangements for the furnishing of services by a nominee,
arrangements for carrying general liability and product liability
insurance, and any other matters which form a part of the application;
(iv) If it intends to set aside, or cause to be set aside, funds
from the net proceeds of the operation of vending facilities, obtain a
prior determination by the Secretary that the amount of such funds to be
set aside is reasonable;
(v) Establish policies against
discrimination of any blind vendor on the basis of sex, age, physical or
mental impairment, creed, color, national origin, or political
affiliation;
(vi) Furnish each vendor a copy of its rules and
regulations and a description of the arrangements for providing
services, and take adequate steps to assure that each vendor understands
the provisions of the permit and any agreement under which he operates,
as evidenced by his signed statements;
(vii) Submit to an
arbitration panel those grievances of any vendor unresolved after a full
evidentiary hearing;
(viii) Adopt accounting procedures and maintain
financial records in a manner necessary to provide for each vending
facility and for the State's vending facility program a classification
of financial transactions in such detail as is sufficient to enable
evaluation of performance; and
(ix) Maintain records and make
reports in such form and containing such information as the Secretary
may require, make such records available for audit purposes, and comply
with such provisions as the Secretary may find necessary to assure the
correctness and verification of such reports.
395.4 State rules and regulations.
<Return to TOC>
(b) Such rules and regulations and
amendments thereto shall be filed or published in accordance with State law.
(c) Such rules and regulations shall include provisions adequate to
insure that the right, title to, and interest in each vending facility used
in the program and the stock will be vested in accordance with the laws of
the State in only the following:
(2) Its nominee, subject to the
conditions specified in SS 395.15(b); or
(3) The vendor, in accordance
with State determination.
(d) Notwithstanding the provisions of paragraph (c) of this section, any
right, title to, or interest which existed on June 30, 1955, in stock may
continue so long as:
(2) The vendor was licensed in the
program (whether or not for the operation of the vending facility in
question) prior to July 1, 1955.
395.5 Approval of application for designation as State licensing agency. <Return to TOC>
When the Secretary determines that an application submitted by a State
vocational rehabilitation agency under SS 395.2, and the accompanying rules
and regulations indicate a plan of program operations which will stimulate and
enlarge the economic opportunities for the blind, and which will meet all
other requirements of this part, he shall approve the application and shall
designate the applying State vocational rehabilitation agency as the State
licensing agency.
395.6 Vendor
ownership of vending facilities.
<Return to TOC>
(b) The State licensing agency shall
establish in writing and maintain policies determining whether the
vendor-owner or the State licensing agency shall be required to maintain the
vending facility in good repair and in an attractive condition and replace
worn out or obsolete equipment; and if the former, such policies shall
provide that upon such vendor-owner's failure to do so, the State licensing
agency may make the necessary maintenance, replacement, or repairs and make
equitable arrangements for reimbursement;
(c) Where the vendor owns such
equipment and is required to maintain the vending facility in good repair
and in an attractive condition and replace worn out or obsolete equipment,
or agrees to purchase additional new equipment, service charges for such
purposes shall be equitably reduced and the method for determining such
amount shall be established by the State licensing agency in writing;
(d) Where the vendor owns such equipment, the State licensing agency
shall retain a first option to repurchase such equipment, and in the event
the vendor-owner dies, or for any other reason ceases to be a licensee, or
transfers to another vending facility, ownership of such equipment shall
become vested in the State licensing agency for transfer to a successor
licensee subject to an obligation on its part to "pay to such vendor-owner
or his estate, the fair value therein; and
(e) The vendor owner, his
personal representative or next of kin shall be entitled to an oppportunity
for a full evidentiary hearing with respect to the determination of the
amount to be paid by the State licensing agency for a vendor's ownership in
the equipment. When the vendor-owner is dissatisfied with any decision
rendered as a result of such hearing, he may file a complaint with the
Secretary under SS 395.13 to request the convening of an ad hoc arbitration
panel.
395.7 The issuance and conditions of licenses.
<Return to TOC>
2. Citizens of the United States; and
3. Certified by the State vocational rehabilitation agency as qualified to
operate a vending facility.
(c) The State licensing
agency shall further establish in writing and maintain policies which have
been developed with the active participation of the State Committee of Blind
Vendors and which govern the duties, supervision, transfer, promotion, and
financial participation of the vendors. The State licensing agency shall
also establish procedures to assure that such policies have been explained
to each blind vendor.
395.8 Distribution and use of income from vending machines on Federal
property.
<Return to TOC>
(b) The State
licensing agency shall disburse vending machine income to blind vendors
within the State on at least a quarterly basis.
(c) Vending machine
income which is retained under paragraph (a) of this section by a State
licensing agency shall be used by such agency for the establishment and
maintenance of retirement or pension plans, for health insurance
contributions, and for the provision of paid sick leave and vacation time
for blind vendors in such State, if so it is determined by a majority vote
of blind vendors licensed by the State licensing agency, after such agency
has provided to each such vendor information on all matters relevant to such
purposes. Any vending machine income not necessary for such purposes shall
be used by the State licensing agency for the maintenance and replacement of
equipment, the purchase of new equipment, management services, and assuring
a fair minimum return to vendors. Any assessment charged to blind vendors by
a State licensing agency shall be reduced pro rata in an amount equal to the
total of such remaining vending machine income.
395.9 The setting aside of funds by the State licensing agency. <Return to TOC>
(a) The State licensing agency shall establish in writing the extent to which funds are to be set aside or caused to be set aside from the net proceeds of the operation of the vending facilities and, to the extent applicable, from vending machine income under SS 395.8(c) in an amount determined by the Secretary to be reasonable.
(b) Funds may be set aside under paragraph (a) of this section only for the purposes of:
(1) Maintenance and replacement of equipment;
(2) The purchase
of new equipment;
1. Management services;
2. Assuring a fair minimum of return
to vendors; or
3. The establishment and maintenance of retirement
or pension funds, health insurance contributions, and provision for
paid sick leave and vacation time, if it is so determined by a
majority vote of blind vendors licensed by the State licensing agency,
after such agency provides to each such vendor information on all
matters relevant to such proposed purposes.
(c) The State licensing agency shall further set out the method of determining the charge for each of the above purposes listed in paragraph (b) of this section, which will be determined with the active participation of the State Committee of Blind Vendors and which will be designed to prevent, so far as is practicable, a greater charge for any purpose than is reasonably required for that purpose. The State licensing agency shall maintain adequate records to support the reasonableness of the charges for each of the purposes listed in this section, including any reserves necessary to assure that such purposes can be achieved on a consistent basis.
395.10 The maintenance and replacement of vending facility equipment.
<Return to TOC>
The State licensing agency shall maintain (or cause to be maintained)
all vending facility equipment in good repair and in an attractive condition
and shall replace or cause to be replaced worn-out and obsolete equipment as
required to ensure the continued successful operation of the facility.
395.11 Training program for blind individuals. <Return to TOC>
The State licensing agency shall ensure that effective programs of vocational and other training services, including personal and vocational adjustment, books, tools, and other training materials, shall be provided to blind individuals as vocational rehabilitation services under the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516). Such programs shall include on-the-job training in all aspects of vending facility operation for blind persons with the capacity to operate a vending facility, and upward mobility training (including further education and additional training or retraining for improved work opportunities) for all blind licensees. The State licensing agency shall further ensure that post employment services shall be provided to blind vendors as vocational rehabilitation services as necessary to assure that the maximum vocational potential of such vendors is achieved and suitable employment is maintained within the State's vending facility program.
395.12 Access to program and financial information. <Return to TOC>
Each blind vendor under this part shall be provided access to all financial data of the State licensing agency relevant to the operation of the State vending facility program, including quarterly and annual financial reports, provided that such disclosure does not violate., applicable Federal or State laws pertaining to the disclosure of confidential information. Insofar as practicable, such data shall be made available in braille or recorded tape. At the request of a blind vendor State licensing agency staff shall arrange a convenient time to assist in the interpretation of such financial data.
395.13 Evidentiary hearings and arbitration of vendor complaints. <Return to TOC>
(a) The State licensing agency shall specify in writing and maintain procedures whereby such agency affords an opportunity for a full evidentiary hearing to each blind vendor (Which procedures shall also apply to cases under SS 395.6(e)) dissatisfied with any State licensing agency action arising from the operation or administration of the vending facility program. When such blind vendor is dissatisfied with any action taken or decision rendered as a result of such hearing, he may file a complaint with the Secretary. Such complaint shall be accompanied by all available supporting documents, including a statement of the decision which was rendered and the reasons in support thereof.
(b) The filing of a complaint under paragraph (a) of this section with either the State licensing agency or the Secretary shall indicate consent by the blind vendor for the release of such information as is necessary for the conduct of a full evidentiary hearing or the hearing of an ad hoc arbitration panel.
(c) Upon receipt of a complaint filed by a blind vendor which meets the requirements established by the Secretary, the Secretary shall convene an ad hoc arbitration panel which shall, in accordance with the provisions of 5 U.S.C. chapter 5, subchapter II, give notice, conduct a hearing, and render its decision which shall be final and binding on the parties except that such decision shall be subject to appeal and review as a final agency action for purposes of the provisions of 5 U.S.C. chapter 7.
(d) The arbitration panel convened by the Secretary to hear the grievances of blind vendors shall be composed of three members appointed as follows:
2.
One individual designated by the blind vendor; and
3. One
individual not employed by the State licensing agency or, where
appropriate, its parent agency, who shall be jointly designated by the
other members of the panel and who shall serve as chairman of the panel.
(e) If either the State licensing agency or the blind vendor fails to designate a member of an arbitration panel. the Secretary shall designate such number on behalf of such part.
(f) The decisions of an arbitration panel convened by the Secretary under this section shall be matters of public record and shall be published in the FEDERAL REGISTER.
(g) The Secretary shall pay all reasonable costs of arbitration under this section in accordance with a schedule of fees and expenses which shall be published in the FEDERAL REGISTER.
(h) The provisions of this section shall not require the participation of grantors of permits for the operation of vending facilities on property other than Federal property.
395.14 The State Committee of Blind Vendors. <Return to TOC>
(a) The State licensing agency shall provide for the biennial election of a State Committee of Blind Vendors which, to the extent possible, shall be fully representative of all blind vendors in the State program on the basis of such factors as geography and vending facility type with a goal of providing for proportional representation of blind vendors on Federal property and blind vendors on other property. Participation by any blind vendor in any election shall not be conditioned upon the payment of dues or any other fees.
(b) The State Committee of Blind Vendors shall:
1. Actively participate with the State licensing agency in major administrative decisions and policy and program development decisions affecting the overall administration of the State's vending facility program;
2. Receive and transmit to the State licensing agency grievances at the request of blind vendors and serve as advocates for such vendors in connection with such grievances;
3. Actively participate with the State licensing agency in the development and administration of a State system for the transfer and promotion of blind vendors;
4. Actively participate with the State licensing agency in the development of training and retraining programs for blind vendors; and
5. Sponsor, with the assistance of the State licensing agency, meetings and instructional conferences for blind vendors within the State.
395.15 Use of nominee agreements.
<Return to TOC>
(1) Clearly insure the retention by the State licensing agency of full responsibility for the administration and operation of all phases of the program;
(2) Specify the type and extent of the services to be provided
under such agreement;
(3) Provide that no set aside charges will be
collected from blind vendors except as specified in such agreement;
(4)
Specify that no nominee will be allowed to exercise any function with
respect to funds for the purchase of new equipment or for assuring a fair
minimum of return to vendors, except to collect and hold solely for
disposition in accordance with the order of the State licensing agency any
charges authorized for those purposes by the licensing agency; and
(5)
Specify that only the State licensing agency shall have control with respect
to selection, placement, transfer, financial participation and termination
of the vendors, and the preservation, utilization, and disposition of
program assets.
395.16 Permit for the establishment Of vending facilities. <Return to TOC>
Prior to the establishment of each vending facility, other than a cafeteria, the State licensing agency shall submit an application for a permit setting forth, the location, the amount of space necessary for the operation of the vending facility; the type of facility and equipment, the number, location and type of vending machines and other terms and conditions desired to be included in the permit. Such application shall be submitted for the approval of the head of the Federal property managing department, agency, or instrumentality. When an application is not approved, the head of the Federal property managing department, agency, or instrumentality shall advise the State licensing agency in writing and shall indicate the reasons for the disapproval.395.17 Suspension of designation as State licensing agency. <Return to TOC>
(a) If the Secretary has reason to believe that, in the administration of the program, there is a failure on the part of any State licensing agency to comply substantially with the Act and this part, he shall so inform such agency in writing, setting forth, in detail, the areas in which there is such failure and giving it a reasonable opportunity to comply.
(b) If, after the lapse of a reasonable time, the Secretary is of the opinion that such failure to comply still continues and that the State licensing agency is not taking the necessary steps to comply, he shall offer to such agency, by reasonable notice in writing thereto and to the chief executive of the State, an opportunity for a hearing before the Secretary (or person designated by the Secretary) to determine whether there is a failure on the part of such agency to comply substantially with the provisions of the Act and of this part.
(c) If it is thereupon determined that there is a failure on the part of such agency to comply substantially with the Act and this part, appropriate written noticed shall be given to such agency and to the chief executive of the State suspending such agency's designation as licensing agency effective 90 days from the date of such notice. A copy of such written notice shall be given to each department, agency, or instrumentality of the United States responsible for the maintenance, operation, and protection of Federal property on which vending machines subject to the requirements of SS 395.32 are located in the State. Upon the suspension of such designation, vending machine income from vending machines on Federal property due for accrual to the State licensing agency under SS 395.32 shall be retained in escrow by such department, agency, or instrumentality of the United States responsible for the maintenance, operation and protection of the Federal property on which such vending machines are located, pending redesignation of the State licensing agency or rescission of the suspension under paragraph (e) of this section.
(d) If, before the expiration of such 90 days, the Secretary (or person designated by him) determines that the State licensing agency is taking the necessary steps to comply, he may postpone the effective date of such suspension for such time as he deems necessary in the best interest of the program.
(e) If, prior to the effective date of such suspension, the Secretary (or person designated by him) finds that there is no longer a failure on the part of the State licensing agency to comply substantially with the provisions of the Act and this part, he shall so notify the agency, the chief executive of the State, and each Federal department, agency, or instrumentality required to place funds in escrow under paragraph (c) of this section, in which event the suspension of the designation shall not become effective and the requirement to place funds in escrow shall be terminated.
Subpart C-Federal Property Management
395.30 The location and
operation of vending facilities for blind vendors on Federal property.
<Return to TOC>
(b) Any limitation on the location or
operation of a vending facility for blind vendors by a department, agency or
instrumentality, of the United States based on a finding that such location or
operation or type of location or operation would adversely affect the
interests of the United States shall be fully justified in writing to the
Secretary who shall determine whether such limitation is warranted. A
determination made by the Secretary concerning such limitation shall be
binding on any department, agency, or instrumentality of the United States
affected by such determination. The Secretary shall publish such determination
in the FEDERAL REGISTER along with supporting documents directly relating to
the determination.
(c) Priority in the operation of vending facilities in
areas administered by the National Park Service or the National Aeronautics
and Space Administration shall be given to blind vendors. Priority in the
awarding of contracts for the operation of concessions in such areas when such
concessions provide accommodations, facilities, and services of a scope or of
a character not generally available in vending facilities operated by blind
vendors shall be given in accordance with the provisions of the Concession
Policy Act (Pub. L. 98-249, 16 U.S.C. 1) or the National Aeronautics and Space
Act of 1958, as amended (Pub. L. 85-568, 42 U.S.C. 2473). The provisions of
this part shall not apply when all accommodations, facilities, or services in
such areas are operated by a single responsible concessioner.
395.31 Acquisition and occupation of Federal property.
<Return to TOC>
(b) Effective January 2, 1975, no department, agency, or
instrumentality of the United States, shall undertake to occupy, in whole or
in part, any building which is to be constructed, substantially altered, or
renovated, or in the case of a building which is occupied on January 2, 1975
by a department, agency, or instrumentality of the United States, no such
department, agency, or instrumentality shall undertake to substantially alter
or renovate such building, unless it is determined that the design for such
construction, substantial alteration, or renovation includes a satisfactory
site or sites for the location and operation of a vending facility by a blind
vendor. In those cases where a design contract or other similar commitment was
entered into prior to January 2, 1975, the provisions of this paragraph shall
not apply. For purposes of this paragraph, "substantial alteration or
renovation of a building" means a permanent material change in the floor area
of such building which would render such building appropriate for the location
and operation of a vending facility by a blind vendor.
(c) The
determination that a building contains a satisfactory site or sites under
paragraph (a) or (b) of this section shall be made after consultation between
the State licensing agency and the head of the department, agency, or
instrumentality of the United States which is planning to acquire or otherwise
occupy such building. In order to make such determination. effective on the
publication date of this part each such department, agency, or instrumentality
shall provide to the appropriate State licensing agency written notice of its
intention to acquire or otherwise occupy such building. Such written notice
shall be by certified or registered mail with return receipt and shall be
provided as early as practicable but no later than 60 days prior to such
intended action. The written notice shall indicate that a satisfactory site or
sites for the location and operation of a vending facility by blind persons is
included in the plans for the building to be acquired or otherwise occupied
and shall further assure that the State licensing agency shall be afforded the
opportunity to determine whether such building includes a satisfactory site or
sites for a vending facility. The written notice shall further assure that the
State licensing agency, subject to the approval of the head of the Federal
property managing department, agency, or instrumentality, shall be offered the
opportunity to select the location and type of vending facility to be operated
by a blind vendor prior to the completion of the final space layout of the
building. The receipt of such written notice shall be acknowledged in writing
promptly by the State licensing agency but no later than within 30 days and
the State licensing agency shall indicate at that time whether it is
interested in establishing a vending facility. A copy of the written notice to
the State licensing agency and the State licensing agency's acknowledgement
shall be provided to the Secretary.
(d) When, after a written notice has
been provided under paragraph (c) of this section, the State licensing agency
determines that the number of persons using the Federal property is or will be
insufficient to support a vending, facility, and the Secretary concurs with
such determination, the provisions of paragraphs (a) and (b) of this section
shall not apply. The provisions of paragraphs (a) and (b) of this section
shall also not apply when fewer than 100 Federal Government employees are or
will be located during normal working hours in the building to be acquired or
otherwise occupied or when such building contains less than 15,000 square feet
of interior space to be utilized for Federal Government purposes in the case
of buildings in which services are to be provided to the public.
(e) The
operation of a vending facility established under pre-existing arrangements
shall not be affected by the provisions of this section. The provisions of
this section shall further not preclude future arrangements under which
vending facilities to be operated by blind vendors may be established in
buildings of a size or with an employee population less than that specified in
paragraph (d) of this section: Provided, that both the State licensing agency
and the Federal property managing department, agency or instrumentality concur
in such establishment.
(f) Each department, agency, and instrumentality of
the United States, when leasing property in privately owned buildings, shall
make every effort to lease property capable of accommodating a vending
facility. When, however, such department, agency, or instrumentality is
leasing part of a privately owned building in which prior to the execution of
the lease, the lessor or any of his tenants had in operation or had entered
into a contract for the operation of a restaurant or other food facility in a
part of the building not included in such lease and the operation of a vending
facility by a blind vendor would be in proximate and substantial direct
competition with such restaurant or other food facility, the provisions of
paragraphs (a), (b), and (c) of this section shall not apply.
395.32 Collection and distribution of vending machine income from vending
machines on Federal property.
<Return to TOC>
(b) Effective January 2, 1975, 100 per centum of all vending
machine income from vending machines on Federal property which are in direct
competition with a vending facility operated by a blind vendor shall accrue to
the State licensing agency which shall disburse such income to such blind
vendor operating such vending facility on such property provided that the
total amount of such income accruing to such blind vendor does not exceed the
maximum amount determined under SS 395.8(a). In the event that there is income
from such vending machines in excess of the maximum amount which may be
disbursed to the blind vendor under SS 395.8(a), such additional income shall
accrue to the State licensing agency for purposes determined in accordance
with SS 395.8(c).
(c) Effective January 2, 1975, 50 per centum of all
vending machine income from vending machines on Federal property which are not
in direct competition with a vending facility operated by a blind vendor shall
accrue to the State licensing agency which shall disburse such income to the
blind vendor operating such vending facility on such property. In the event
that there is no blind vendor, such income shall accrue to the State licensing
agency, except as indicated under paragraph (d) of this section. The total
amount of such income disbursed to such blind vendor shall not exceed the
maximum amount determined under SS 395.8(a). In the event that there is income
from such vending machines in excess of the maximum amount which may accrue to
the blind vendor under SS 395.8(a), such additional income shall accrue to the
State licensing agency for purposes determined in accordance with SS 395.8(c).
(d) Effective January 2, 1975, 30 per centum of all vending machine income
from vending machines, which are not in direct competition with a vending
facility operated by a blind vendor and which are on Federal property at which
at least 50 per centum of the total hours worked on the premises occurs during
a period other than normal working hours, shall accrue to the State licensing
agency which shall disburse such income to the blind vendor operating a
vending facility on such property. In the event that there is no blind vendor
on such property, such income shall accrue to the State licensing agency. The
total amount of such income disbursed to such blind vendor shall not exceed
the maximum amount determined under SS 395.8(a). In the event that there is
income from such vending machines in excess of the maximum amount which may be
disbursed to the blind vendor under SS 395.8(a), such additional income shall
accrue to the State licensing agency for purposes determined in accordance
with SS 395.8(c).
(e) The determination that a vending machine on Federal
property is in direct competition with a vending facility operated by a blind
vendor shall be the responsibility of the on-site official responsible for the
Federal property of each property managing department, agency or
instrumentality of the United States, subject to the concurrence of the State
licensing agency.
(f) In the case of vending machine income which, prior
to the effective date of this part, has been disbursed to a blind vendor by a
property managing department, agency, or instrumentality from proceeds which
accrued from operations subsequent to January 2, 1975, pursuant to agreements
in effect prior to such time, such income may be deducted, at the discretion
of such property managing department, agency or instrumentality, from vending
machine income due to the State licensing agency under paragraphs (b), (c), or
(d) of this section.
(g) The collection of vending machine income and its
disbursement to the appropriate State licensing agency shall be conducted on
at least a quarterly basis.
(h) All arrangements pertaining to the
operation of vending machines on Federal property not covered by contract
with, or by permits issued to, State licensing agencies, shall be renegotiated
upon the expiration of the existing contract or other arrangement for
consistency with the provisions of this section.
(i) The provisions of this section shall not apply to income from vending machines within operated retail sales outlets under the control of post exchange or ships' stores systems authorized under Title 10 of the United States Code; to income from vending machines operated by the Veterans Canteen Service; or to income from vending machines not in direct competition with a blind vending facility at individual locations, installations, or facilities on Federal property the total of which at such individual locations, installations, or facilities does not exceed $3,000 annually.
(j) The provisions of this section shall not operate to preclude preexisting or future arrangements, or regulations of departments, agencies, or instrumentalities of the United States, under which blind vendors or State licensing agencies may:
1. Receive a greater percentage or amount of vending machine income than that specified in paragraphs (b), (c), and (d) of this section, or
2. Receive vending machine income from individual locations, installations, or facilities on Federal property the total of which at such individual locations, installations, or facilities does not exceed $3,000 annually.
(b) In order to establish the ability of blind
vendors to operate a cafeteria in such a manner as to provide food service at
comparable cost and of comparable high quality as that available from other
providers of cafeteria services, the appropriate State licensing agency shall
be invited to respond to solicitations for offers when a cafeteria contract is
contemplated by the appropriate property managing department, agency, or
instrumentality. Such solicitations for offers shall establish criteria under
which all responses will be judged. Such criteria may include sanitation
practices, personnel, staffing, menu pricing and portion sizes, menu variety,
budget and accounting practices. If the proposal received from the State
licensing agency is judged to be within a competitive range and has been
ranked among those proposals which have a reasonable chance of being selected
for final award, the property managing department, agency, or instrumentality
shall consult with the Secretary as required under paragraph (a). of this
section. If the State licensing agency is dissatisfied with an action taken
relative to its proposal, it may file a complaint with the Secretary under the
provisions of SS 395.37.
(c) All contracts or other existing arrangements
pertaining to the operation of cafeterias on Federal property not covered by
contract with, or by permits issued to, State licensing agencies shall be
renegotiated subsequent to the effective date of this part on or before the
expiration of such contracts or other arrangements pursuant to the provisions
of this section.
(d) Notwithstanding the requirements of paragraphs (a)
and (b) of this section, Federal property managing departments, agencies, and
instrumentalities may afford priority in the operation of cafeterias by blind
vendors on Federal property through direct negotiations with State licensing
agencies whenever such department, agency, or instrumentality determines, on
an individual basis, that such operation can be provided at a reasonable cost,
with food of a high quality comparable to that currently provided employees:
Provided, however, that the provisions of paragraphs (a) and (b) of this
section shall apply in the event that the negotiations authorized by this
paragraph do not result in a contract.
395.34 Application for permits. <Return to TOC>
Applications for permits for the
operation of vending facilities other than cafeterias shall be made in writing
on the appropriate form, and submitted for the review and approval of the head
of the Federal property managing department, agency, or instrumentality.
395.35 Terms of permit. <Return to TOC>
Every permit shall describe the location of
the vending facility including any vending machines located on other than the
facility premises and shall be subject to the following provisions:
(2) Take
the necessary action to assure that vendors do not discriminate against any
person or persons in furnishing, or by refusing to furnish, to such person
or persons the use of any vending facility, including any and services,
privileges, accommodations, and activities provided thereby, and comply with
Title VI of the Civil Rights Act of 1964 and regulations issued pursuant
thereto.
(c) The permit shall provide that:
(2) Cleaning necessary for sanitation,
and the maintenance of vending facilities and vending machines in an orderly
condition at all times, and the installation, maintenance, repair,
replacement, servicing, and removal of vending facility equipment shall be
without cost to the department, agency, or instrumentality responsible for
the maintenance of the Federal property; and
(3) Articles sold at
vending facilities operated by blind licensees may consist of newspapers,
periodicals, publications, confections, tobacco products, foods, beverages,
chances for any lottery authorized by State law and conducted by an agency
of a State within such State, and other articles or services as are
determined by the State licensing agency, in consultation with the on-site
official responsible for the Federal property of the property managing
department, agency or instrumentality, to be suitable for a particular
location. Such articles and services may be dispensed automatically or
manually and may be prepared on or off the premises in accordance with all
applicable health laws.
(d) The permit shall further provide that vending facilities shall be operated in compliance with applicable health, sanitation, and building codes or ordinances.
(e) The permit shall further provide that installation, modification, relocation, removal, and renovation of vending facilities shall be subject to the prior approval and supervision of the on-site official responsible for the Federal property of the property managing department, agency, or instrumentality, and the State licensing agency; that costs of relocations initiated by the State licensing agency shall be paid by the State licensing agency; and that costs of relocations initiated by the department, agency, or instrumentality shall be borne by such department, agency, or instrumentality.
(f) The operation of a cafeteria by a blind vendor shall be covered by a contractual agreement and not by a permit.
(b) Unresolved disagreements concerning the
terms of the permit, the Act, or the regulations in this part and any other
unresolved matters shall be reported in writing to the State licensing agency
supervisory personnel by the Regional or other appropriate official of the
Federal property managing department, agency, or instrumentality in an attempt
to resolve the issue.
395.37 Arbitration of State licensing agency complaints.
<Return to TOC>
(b) Upon receipt of a complaint
filed under paragraph (a) of this section, the Secretary shall convene an ad
hoc arbitration panel which shall, in accordance with the provisions of 5
U.S.C. ch. 5, subchapter II, give notice, conduct a hearing and render its
decision which shall be final and binding on the parties except that such
decision shall be subject to appeal and review as a final agency action for
purposes of the provisions of 5 U.S.C. ch. 7. The arbitration panel convened
by the Secretary to hear complaints filed by a State licensing agency shall be
composed of three members appointed as follows:
(d) If the
panel finds that the acts or practices of any department, agency, or
instrumentality are in violation of the Act or of this part, the head of any
such department, agency, or instrumentality (subject to any appeal under
paragraph (b) of this section) shall 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.
(e) The decisions of an arbitration
panel convened by the Secretary under this section shall be matters of public
record and shall be published in the FEDERAL REGISTER.
(f) The Secretary
shall pay all reasonable costs of arbitration under this section in accordance
with a schedule of fees and expenses which shall be published in the FEDERAL
REGISTER.
395.38 Reports <Return to TOC>
At the end of each fiscal year, each property managing
department, agency, or instrumentality of the United States shall report to the
Secretary the total number of applications for vending facility locations
received from State licensing agencies, the number accepted, the number denied,
the number still pending, the total amount of vending machine income collected
and the amount of such vending machine income disbursed to the State licensing
agency in each State.