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Wisconsin BEP Home > Laws & Regulations >
Federal CodeCode of Federal
BEP Regulations
What follows is the complete text of the code of federal regulations
pertaining to blind-operated vending facilities on government property.
The code provides a set of standards by which such facilities are established
and operated under the Randolph-Sheppard Act. Click on the section title to go
directly to that section.
PART 395-VENDING FACILITY PROGRAM FOR THE BLIND ON FEDERAL AND OTHER PROPERTY
Table of Contents (TOC)
Subpart A-Definitions
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.
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Subpart A-Definitions
395.1 Terms.
Unless otherwise indicated in this part, the terms below are defined as follows:
(a) "Act" means the Randolph-Sheppard Vending Stand
Act (Pub. L. 74-732), as amended by Pub. L. 83-565 and Pub. L. 93-516, 20 U.S.C., ch. 6A, Sec 107.
(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
1. Not more than 20/200 central visual acuity in
the better eye with correcting lenses, or
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:
1. Effective on March 23, 1977 a minimum of 250
square feet available for the vending and storage of articles necessary
for the operation of a vending facility; and
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.
(aa) "Vendor" means a blind licensee who is
operating a vending facility on Federal or other property.
(bb) "Vocational rehabilitation services" means those services as defined
in SS 1361.1(ee) (1) and (2) of this chapter.
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Subpart B-The State Licensing Agency
395.2 Application for designation as a State licensing agency; general.
(a) An application for designation as a State
licensing agency may be submitted only by the State vocational
rehabilitation agency providing vocational rehabilitation services to the
blind under an approved State plan for vocational rehabilitation services
under Part 1361 of this chapter.
(b) Such application shall be:
1. Submitted in writing to the Secretary;
2. Approved by the chief executive of the State; and
3. Transmitted over the signature of the administrator of the State
agency making application.
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395.3 Application for designation as State licensing agency; content.
(a) An application for designation as a State
licensing agency under SS 395.2 shall indicate:
1. The State licensing agency's legal authority
to administer the program, including its authority to promulgate rules and
regulations to govern the program;
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:
(i) Cooperate with the Secretary in applying
the requirements of the Act in a uniform manner;
(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.
(b) An application submitted under SS 395.2 shall
be accompanied by a copy of State rules and regulations affecting the
administration and operation of the State's vending facility program.
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395.4
State rules and regulations.
(a) The State licensing agency shall promulgate
rules and regulations which have been approved by the Secretary and which
shall be adequate to assure the effective conduct of the State's vending
facility program (including State licensing agency procedures covering the
conduct of full evidentiary hearings) and the operation of each vending
facility in accordance with this part and with the requirements and
conditions of each department, agency, and instrumentality in control of the
maintenance, operation, and protection of Federal property, including the
conditions contained in permits, as well as in all applicable Federal and
State laws, local ordinances and regulations.
(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:
1. The State licensing agency; or
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:
1. The interest is in the stock of a facility
established under the program prior to July 1, 1955, and
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.
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395.5 Approval of application for designation as State licensing agency.
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.
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395.6 Vendor
ownership of vending facilities.
(a) If a State licensing agency determines under SS
395.4(c) that the right, title to, and interest in a vending facility may be
vested in the blind vendor, the State licensing agency shall enter into a
written agreement with each vendor who is to have such ownership. Such
agreement shall contain in full the terms and conditions governing such
ownership in accordance with criteria in the State licensing agency's
regulations, this part, and the terms and conditions of the permit. The
criteria established to govern the determination that the title may be so
vested shall contain reasonable provisions to enable a vendor to purchase
vending facility equipment and to ensure that no individual will be denied
the opportunity to become a vendor because of his inability to purchase the
vending facility equipment or the initial stock;
(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.
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395.7 The issuance
and conditions of licenses.
(a) The State licensing agency shall establish in
writing and maintain objective criteria for licensing qualified applicants,
including a provision for giving preference to blind persons who are in need
of employment. Such criteria shall also include provisions to assure that
licenses will be issued only to persons who are determined by the State
licensing agency to be:
1. Blind;
2. Citizens of the United States; and
3. Certified by the State vocational rehabilitation agency as qualified
to operate a vending facility.
(b) The State licensing agency shall provide for
the issuance of licenses for an indefinite period but subject to suspension
or termination if, after affording the vendor an opportunity for a full
evidentiary hearing, the State licensing agency finds that the vending
facility is not being operated in accordance with its rules and regulations,
the terms and conditions of the permit, and the terms and conditions of the
agreement with the vendor.
(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.
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395.8 Distribution and use of income from vending machines on Federal
property.
(a) Vending machine income from vending machines on
Federal property which has been disbursed to the State licensing agency by a
property managing department, agency, or instrumentality of the United
States under SS 395.32 shall accrue to each blind vendor operating a vending
facility on such Federal property in each State in an amount not to exceed
the average net income of the total number of blind vendors within such
State, as determined each fiscal year on the basis of each prior year's
operation, except that vending machine income shall not accrue to any blind
vendor in any amount exceeding the average net income of the total number of
blind vendors in the United States. No blind vendor shall receive less
vending machine income than he was receiving during the calendar year prior
to January 1, 1974, as a direct result of any limitation imposed on such
income under this paragraph. No limitation shall be imposed on income from
vending machines, combined to create a vending facility, when such facility
is maintained, serviced, or operated by a blind vendor. Vending machine
income disbursed by a property managing department, agency or
instrumentality of the United States to a State licensing agency in excess
of the amounts eligible to accrue to blind vendors in accordance with this
paragraph shall be retained by the appropriate State licensing agency.
(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.
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395.9 The setting aside of funds by the State licensing agency.
(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;
(i.) Management services;
(ii.) Assuring a fair minimum of return to vendors; or
(iii.) 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.
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395.10 The maintenance and replacement of vending facility equipment.
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.
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395.11 Training program
for blind individuals.
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.
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395.12 Access to
program and financial information.
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.
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395.13 Evidentiary hearings and arbitration of vendor complaints.
(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:
1. One individual designated by the State licensing agency;
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.
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395.14 The State
Committee of Blind Vendors.
(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.
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395.15 Use of nominee agreements.
(a) The State licensing agency may enter into an
agreement whereby another agency or organization undertakes to furnish
services to blind vendors. Such agreement shall be in writing and shall
contain provisions which:
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.
(b) If the State licensing agency permits any
agency or organization other than a vendor to hold any right, title to, or
interest in vending facilities or stock, the arrangement shall be one
permitted by State law and shall specify in writing that all such right,
title to, or interest is held by such agency or organization as the nominee
of the State licensing agency for program purposes and subject to the
paramount right of the State licensing agency to direct and control the use,
transfer, and disposition of such vending facilities or stock.
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395.16
Permit for the establishment Of vending facilities.
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.
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395.17
Suspension of designation as State licensing agency.
(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.
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Subpart C-Federal Property Management
395.30 The location and operation of vending facilities for blind vendors on
Federal property.
(a) Each department, agency, or instrumentality of
the United States in control of the maintenance, operation, and protection
of Federal property shall take all steps necessary to assure that, wherever
feasible, in light of appropriate space and potential patronage, one or more
vending facilities for operation by blind licensees shall be located on all
Federal property Provided that the location or operation of such facility or
facilities would not adversely affect the interests of the United States.
Blind persons licensed by State licensing agencies shall be given priority
in the operation of vending facilities on any Federal property.
(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
concessionaire.
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395.31
Acquisition and occupation of Federal property.
(a) Effective January 2, 1975, no department,
agency, or instrumentality of the United States shall undertake to acquire
by ownership, rent, or lease, or to otherwise occupy, in whole or in part,
any building unless it is determined that such building includes a
satisfactory site or sites for the location and operation of a vending
facility by a blind vendor. In those cases where a purchase contract, an
agreement to lease, or other similar commitment was entered into prior to
January 2. 1975, the provisions of this paragraph shall not apply.
(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.
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395.32 Collection and distribution of vending machine income from vending
machines on Federal property.
(a) The on-site official responsible for the
Federal property of each property managing department, agency, or
instrumentality of the United States, in accordance with established
procedures of such department, agency, or instrumentality, shall be
responsible for the collection of, and accounting for, vending machine
income from vending machines on Federal property under his control and shall
otherwise ensure compliance with the provisions of this section.
(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.
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395.33 Operation of
cafeterias by blind vendors.
(a) Priority in the operation of cafeterias by
blind vendors on Federal property shall be afforded when the Secretary
determines, on an individual basis, and after consultation with the
appropriate property managing department, agency, or instrumentality, that
such operation can be provided at a reasonable cost, with food of a high
quality comparable to that currently provided employees, whether by contract
or otherwise. Such operation shall be expected to provide maximum employment
opportunities to blind vendors to the greatest extent possible.
(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.
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395.34 Application for permits.
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.
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395.35 Terms of permit.
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:
(a) The permit shall be issued in the name of the
applicant State licensing agency which shall:
1. Prescribe such procedures as are necessary to assure that in the
selection of vendors and employees for vending facilities there shall be
no discrimination because of sex, race, age, creed, color, national
origin, physical or mental disability, or political affiliation; and
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.
(b) The permit shall be issued for an indefinite
period of time subject to suspension or termination on the basis of
compliance with agreed upon terms.
(c) The permit shall provide that:
1. No charge shall be made to the State licensing agency for normal
cleaning, maintenance, and repair of the building, structure in and
adjacent to the vending facility areas;
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.
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395.36
Enforcement procedures.
(a) The State licensing agency shall attempt to
resolve day-to-day problems pertaining to the operation of the vending
facility in an informal manner with the participation of the blind vendor
and the on-site official responsible for the property of the property
managing department, agency, or instrumentality as necessary.
(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.
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395.37
Arbitration of State licensing agency complaints.
(a) Whenever any State licensing agency determines
that any department, agency, or instrumentality of the United States which
has control of the maintenance, operation, and protection of Federal
property is failing to comply with the provisions of the Act or of this part
and all informal attempts to resolve the issues have been unsuccessful, such
licensing agency may file a complaint with the Secretary.
(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:
1. One individual designated by the State licensing agency;
2. One individual designated by the head of the Federal department,
agency, or instrumentality controlling the Federal property over which the
dispute arose; and
3. One individual, not employed by the Federal department,
agency, or instrumentality controlling the Federal property over which the
dispute arose, who shall be jointly designated by the other members of the
panel and who shall serve as chairman of the panel.
(c) If either the State licensing agency or the head of the Federal
department, agency, or instrumentality fails to designate a member of an
arbitration panel, the Secretary shall designate such member on behalf of
such party.
(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.
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395.38 Reports
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.
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