Vending Facility Program for the Blind on DoD-Controlled Federal Property, 62234-62239 [E9-28356]
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Federal Register / Vol. 74, No. 227 / Friday, November 27, 2009 / Rules and Regulations
DEPARTMENT OF DEFENSE
Office of the Secretary
[DoD–2008–OS–0009; RIN 0790–AH77]
32 CFR Part 260
Vending Facility Program for the Blind
on DoD-Controlled Federal Property
Department of Defense.
Final rule.
AGENCY:
ACTION:
SUMMARY: This final rule reinstates
Department of Defense regulations
related to the vending facility program
for the blind on DoD-controlled Federal
property. This rule shall not apply to
military dining facilities that are subject
to and defined in section 856 of the John
Warner National Defense Authorization
Act for Fiscal Year 2007.
DATES: Effective Date: This rule is
effective December 28, 2009.
FOR FURTHER INFORMATION CONTACT:
Olivia Smith, 703–602–4601.
SUPPLEMENTARY INFORMATION:
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A. Summary
The proposed rule was published in
the Federal Register on January 16,
2009 (74 FR 2932–2935). In response to
the proposed rule, the DoD received 93
submissions with 310 comments during
the 60-day comment period. 87 of the
submissions contained three identical
comments. Other comments fell into
one of the following categories:
Expanding the scope of the rule beyond
the Randolph-Sheppard Act (R–SA) as
implemented by the Department of
Education (DoEd) in 34 CFR 395; the
military dining exclusion; definitions;
the military exchange exemption;
references to DoD policies; allocation
and billing of costs; leasing of privatelyowned buildings with existing food
facilities; and arbitration.
B. Identical Comments
1. Comment: Make a statement that
the DoD intends to comply with the
letter and the spirit of the R–SA.
Response: DoD’s policy to extend
priority to the blind when implementing
the R–SA is contained in section 260.4.
2. Ensure that the language of the final
regulations is consistent with and
preferably identical to regulations
issued by the DoEd and with the
language of the R–SA.
Response: The language in the rule is
consistent with the DoED regulations.
One variation is the definition of
‘‘cafeteria,’’ which uses the exact
definition contained in the R–SA and 34
CFR 395.1(d), and adds, ‘‘The DoD
Component food dispensing facilities
that conduct cafeteria-type operations
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during part of their normal operating
day and full table-service operations
during the remainder of their normal
operating day are not ‘‘cafeterias’’ if they
engage primarily in full table service
operations.’’ DoD added this language to
ensure that DoD food dispensing
facilities that use a serving line for only
a brief portion of the day are not
considered cafeterias for the purpose of
the Final Rule.
3. Clarify that the R–SA priority
applies to all vending operations, even
when the DoD would not be required to
provide a suitable location, and that
when there is a change in the contract
or permit, the vending opportunity must
be re-offered to the State Licensing
Agency (SLA) even if that agency has
previously declined to exercise the R–
SA priority.
Response: Section 260.4 gives the
blind priority in the establishment and
operation of vending facilities, except
those vending facilities to which the R–
SA does not apply. An SLA shall not
forfeit the R–SA priority for future
contract solicitations or permits by
declining the priority for an earlier
solicitation. However, there is no
requirement in the R–SA that the DoD
terminate an existing contract because
an SLA that previously declined a
priority asserts the priority at a later
date.’’
C. Additional Comments
1. Expanding the Scope of the Rule.
Several comments suggested changes to
expand the scope of the rule beyond the
provisions of the R–SA and the DoEd’s
implementing rule (34 CFR 395).
Response: The DoD rule is consistent
with 34 CFR 395, and DoD does not
have the authority to expand the scope
beyond the RSA. One comment
proposed expanding the rule to
establish a priority in the operation of
vending operations even when the
proposed location does not contain a
suitable location. This suggestion,
which would apparently cover
situations when DoD is leasing space in
privately owned buildings, is
inconsistent with 20 USC 107a(d)(2). A
second comment proposed changing the
definition of ‘‘individual installation,
location or facility,’’ but the DoD rule
uses the definition contained at 34 CFR
395.1(h). A third comment asked DoD to
alter the arbitration procedures
delineated at 34 CFR 395.37 by deleting
the word ‘‘all’’ from section 260.6(f) of
the proposed rule. However, section
395.37(a) specifically uses the word
‘‘all’’ when referring to informal efforts
to resolve issues of noncompliance.
2. Military Dining Exclusion. Several
of the comments recommended deletion
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of references to and the definition of
military dining facilities.
Response: Section 260.4(b) has been
modified to exclude reference to Section
856 of the John Warner National
Defense Authorization Act for Fiscal
Year 2007, since it only applies to
military dining facilities. The definition
of military dining facilities is necessary
to explain that the rule does not apply
to such facilities.
3. Definitions. Several of the
comments recommended changes to
definitions.
Response: The definitions are
consistent with the definitions in 34
CFR 395. The one variation occurs in
the definition of ‘‘cafeteria,’’ where the
proposed rule uses the same definition
as 34 CFR 395.1(d), but adds, ‘‘the DoD
Component food dispensing facilities
that conduct cafeteria-type operations
during part of their normal operating
day and full table-service operations
during the remainder of their normal
operating day are not ‘‘cafeterias’’ if they
engage primarily in full table service
operations.’’ DoD added this language to
ensure that DoD food dispensing
facilities that use a serving line for only
a brief portion of the day are not
considered cafeterias for the purpose of
the Final Rule. A second comment
proposed changing the definition of
‘‘individual installation, location or
facility.’’ However, the final rule uses
the same definition contained at 34 CFR
395.1(h).
4. Military Exchange Exemption.
Several of the comments recommended
limitations on the income-sharing
exemption for vending machines
operated by or for the military
exchanges or ships store systems.
Response: The income-sharing
exemption for vending machines
operated by or for the military
exchanges or ships store systems is
codified at § 107d–3(d) of the R–SA and
34 CFR 395.32(h)(1), and the rule is
consistent with both.
5. References to DoD Policies. Several
of the comments recommended deleting
references to DoD policies that may be
changed without public notice,
comment, or other opportunity for
stakeholders to be consulted.
Response: Any DoD publication that
grants a right or privilege to the public
or has a substantial or direct impact on
any significant portion of the public is
required to be published. Since 32 CFR
260 prescribes implementation of the R–
SA within the DoD, it is necessary to
reference applicable DoD policies and
publications. The DoD publications
referenced in the Final Rule are
available on the internet at https://
www.dtic.mil/whs/directives.
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6. Allocation and Billing of Costs. One
commenter recommended using more
explicit language in 260.6(b)(4) to
specify the methodology for allocating
costs, prohibiting retroactive or
prospective billing, limiting costs to
similar costs charged to other food
vendors, including military exchanges
and commercial enterprises, and
adapting charges as the number of
people using the facility fluctuates.
Response: Pursuant to the comment,
we have removed the language at
section 260.6(b)(4) of the final rule and
inserted language consistent with 34
CFR 395.35, which provides that the
permit shall state (1) no charge shall be
made to the State Licensing agency for
the cost of normal cleaning,
maintenance, and repair of the building
structure in and adjacent to the vending
facility areas, and (2) no charge shall be
made to the DoD for the cost of
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.
7. Leasing of Privately-Owned
Buildings with Existing Food Facilities.
One comment recommended adding
language that DoD components should
avoid leasing all or part of a privatelyowned building in which there is an
existing food facility that would be in
direct competition with a R–SA
operation, resulting in the absence of a
requirement to provide a satisfactory
site.
Response: This comment is
inconsistent with 20 U.S.C.
107a(d)(2)(B), which exempts from the
R–SA privately owned buildings ‘‘any
part of which is leased by any
department, agency or instrumentality
of the United States and in which, (i)
prior to the execution of such lease, the
lessor or any of his tenants had in
operation a restaurant or other food
facility in a part of the building no
included in such lease, and (ii) the
operation of such a vending facility by
a blind person would be in proximate
and substantial direct competition with
such restaurant or other food facility
except that each such department,
agency and instrumentality shall make
every effort to lease property in
privately owned buildings capable of
accommodating a vending facility.’’
Moreover, the suggested language would
overly restrict the DoD’s ability to lease
facilities.
8. Arbitration. One comment
recommended deleting the word ‘‘all’’
in section 260.6(f) to clarify who has the
authority to determine that all informal
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attempts to resolve the issues have been
unsuccessful.
Response: The final rule is consistent
with 34 CFR 395.37(a), which
specifically uses the word ‘‘all’’ when
referring to informal efforts to resolve
issues.
Executive Order 12866, ‘‘Regulatory
Planning and Review’’
It has been certified that 32 CFR part
260 does not:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy; a section of the economy;
productivity; competition; jobs; the
environment; public health or safety; or
State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another Agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in this Executive Order.
Sec. 202, Public Law 104–4, ‘‘Unfunded
Mandates Reform Act’’
It has been certified that 32 CFR part
260 does not contain a Federal mandate
that may result in the expenditure by
State, local and tribunal governments, in
aggregate, or by the private sector, of
$100 million or more in any 1 year.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
It has been certified that 32 CFR part
260 is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a
significant economic impact on a
substantial number of small entities.
This rule is consistent with the
Randolph-Sheppard Act (20 U.S.C. 107),
the implementing regulations of the U.S.
Department of Education (34 CFR part
395), and Section 856 of the John
Warner National Defense Authorization
Act for Fiscal Year 2007.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part
260 does not impose reporting or
recordkeeping requirements under the
Paperwork Reduction Act of 1995.
Executive Order 13132, ‘‘Federalism’’
It has been certified that 32 CFR part
260 does not have federalism
implications, as set forth in Executive
Order 13132. This rule does not have
substantial direct effects on:
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(1) The States;
(2) The relationship between the
National Government and the States; or
(3) The distribution of power and
responsibilities among the various
levels of Government.
List of Subjects in 32 CFR Part 260
Persons with disabilities, Blind,
Vending.
■ Accordingly, 32 CFR part 260 is
added to read as follows:
PART 260—VENDING FACILITY
PROGRAM FOR THE BLIND ON DODCONTROLLED FEDERAL PROPERTY
Sec.
260.1
260.2
260.3
260.4
260.5
260.6
260.7
§ 260.1
Purpose.
Applicability.
Definitions.
Policy.
Responsibilities.
Procedures.
Information requirements.
Purpose.
This part:
(a) Assigns responsibilities in
compliance with 20 U.S.C. 107 et seq.
and 34 CFR part 395 and establishes the
following policies within the
Department of Defense:
(1) Uniform policies for application of
priority accorded the blind to operate
vending facilities;
(2) Requirements for satisfactory
vending facility sites on DoD-controlled
property; and
(3) Vending machine income-sharing
requirements on DoD-controlled
property
(b) Prescribes requirements and
operating procedures for the vending
facility program for the blind on DoDcontrolled property.
(c) Does NOT apply to full food
services, mess attendant services, or
services supporting the operation of a
military dining facility.
§ 260.2
Applicability.
This part applies to:
(a) Office of the Secretary of Defense,
the Military Departments, the Office of
the Chairman of the Joint Chiefs of Staff
and the Joint Staff, the Combatant
Commands, the Office of the Inspector
General of the Department of Defense,
the Defense Agencies, the Department of
Defense Field Activities, and all other
organizational entities in the
Department of Defense (hereafter
referred to collectively as the ‘‘DoD
Components’’).
(b) Vending facility sites on DoDcontrolled property.
§ 260.3
Definitions.
Blind licensee. A blind person
licensed by the State licensing agency to
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operate a vending facility on DoDcontrolled property.
Cafeteria. A food dispensing facility
capable of providing a broad variety of
prepared foods and beverages (including
hot meals) primarily through the use of
a line where the customer serves
himself or herself from displayed
selections. A cafeteria may be fully
automatic, or some limited waiter or
waitress service may be available and
provided within a cafeteria and table or
booth seating facilities are always
provided. The DoD Component food
dispensing facilities that conduct
cafeteria-type operations during part of
their normal operating day and full
table-service operations during the
remainder of their normal operating day
are not ‘‘cafeterias’’ if they engage
primarily in full table service
operations.
Direct competition. The presence and
operation of a DoD Component vending
machine or a vending facility on the
same DoD-controlled property as a
vending facility operated by a blind
vendor. Vending machines or vending
facilities operated in areas serving
employees, the majority of whom
normally do not have 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.
DoD-controlled property. Federal
property that is owned, leased, or
occupied by DoD.
Federal employees. Civilian
appropriated fund and nonappropriated
fund employees of the United States.
Federal property. Any building, land,
or other real property owned, leased, or
occupied by DoD in the United States.
Individual location, installation, or
facility. A single building or a selfcontained group of buildings. A selfcontained group of buildings refers to
two or more buildings that must be
located in close proximity to each other
and between which a majority of the
Federal employees working in such
buildings regularly move from one
building to another in the normal course
of their official business during a
normal working day.
License. A written instrument issued
by a State licensing agency to a blind
person, authorizing that person to
operate a vending facility on DoDcontrolled property.
Military dining facility. A facility
owned, operated, or leased and wholly
controlled by DoD and used to provide
dining services to members of the
Armed Forces, including a cafeteria,
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military mess hall, military troop dining
facility, or any similar dining facility
operated for the purpose of providing
meals to members of the Armed Forces.
Normal working hours. An 8-hour
work period between the approximate
hours of 0800 and 1800, Monday
through Friday.
On-site official. The individual in
command of an installation or separate
facility or location. For the Pentagon
Reservation only, the Washington
Headquarters Services (WHS) Director
of the Defense Facilities Directorate is
designated as the on-site official.
Permit. The official approval given a
State licensing agency by a department,
agency, or instrumentality responsible
for DoD-controlled property whereby
the State licensing agency is authorized
to establish a vending facility.
Satisfactory site. An area fully
accessible to vending facility patrons
and having sufficient electrical,
plumbing, heating, and ventilation
outlets for the location and operation of
a vending facility in compliance with
applicable health laws and building
requirements. A ‘‘satisfactory site’’ shall
have a minimum of 250 square feet
available for sale of items and for
storage of articles necessary for the
operation of a vending facility.
State. A state, the District of
Columbia, the Commonwealth of Puerto
Rico, a territory, or possession of the
United States.
State licensing agency. The State
agency designated by the Secretary of
Education, to issue licenses to blind
persons for the operation of vending
facilities on Federal and other property.
Substantial alteration or renovation.
A permanent material change in the
floor area of a building that would
render it appropriate for the location
and operation of a vending facility by a
blind vendor.
United States. The several States, the
District of Columbia, the
Commonwealth of Puerto Rico, and the
territories and possessions of the United
States.
Vending facility. Automatic vending
machines, cafeterias, snack bars, cart
service, shelters, counters, and such
other appropriate auxiliary equipment
that may be operated by blind licensees
and that are necessary for the sale of
newspapers, periodicals, confections,
tobacco products, foods, beverages, and
other articles and services to be
dispensed automatically or manually
and that are prepared on or off the
premises according to applicable health
laws. Also includes facilities providing
the vending or exchange of chances for
any lottery authorized by State law and
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conducted by an agency of a State
within such State.
Vending machine. For the purposes of
assigning vending machine income, a
coin or currency operated machine that
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.
Vending machine income. (1) DoD
Component receipts from the DoD
Component vending machine operations
on DoD-controlled property, where the
machines are operated by any DoD
Component activity, less costs incurred;
or
(2) Commissions received by any DoD
Component activity from a commercial
vending firm that provides vending
machines on DoD-controlled property.
(3) ‘‘Costs incurred’’ include costs of
goods, including reasonable service and
maintenance costs in accordance with
customary business practices of
commercial vending concerns, repair,
cleaning, depreciation, supervisory and
administrative personnel, normal
accounting, and accounting for incomesharing.
Vendor. A blind licensee who is
operating a vending facility on DoDcontrolled property.
§ 260.4
Policy.
It is DoD policy that a DoD
Component having accountability for
real property shall extend priority on
such property to the blind when
implementing the Randolph-Sheppard
Act, as set out in the following
paragraphs:
(a) The blind shall be given priority in
the establishment and operation of
vending facilities.
(b) The blind shall be given priority
in the award of contracts to operate
cafeterias.
(c) In conjunction with acquisition or
substantial alteration or renovation of a
building, satisfactory sites shall be
provided for operation of blind vending
facilities.
(d) Specified income from vending
machines operated on DoD-controlled
property by a DoD Component either
directly or by contract shall be given to
State licensing agencies.
§ 260.5
Responsibilities.
(a) The Principal Deputy Under
Secretary of Defense for Personnel and
Readiness (PDUSD(P&R)), under the
Under Secretary of Defense for
Personnel and Readiness, shall establish
policies and procedures and monitor the
Vending Facility Program.
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(b) The Heads of the DoD
Components, in monitoring their
respective programs, shall:
(1) Approve or disapprove State
licensing agency applications for
permits and the provision of satisfactory
sites;
(2) Issue policies and procedures to
designate and establish responsibilities
of the on-site official;
(3) Suspend or terminate a permit to
operate a vending facility after
consulting with the PDUSD(P&R) where
circumstances warrant.
(4) Ensure appropriate real property
outgrants are accomplished in
accordance with DoDI 4165.70, ‘‘Real
Property Management,’’ 1 and consistent
with the Randolph-Sheppard Act (20
U.S.C. 107) and the implementing
regulations (34 CFR part 395).
(5) The On-Site Official shall be the
point of contact with State licensing
agencies and shall:
(i) Consult with State licensing
agencies on articles and services to be
provided;
(ii) Establish appropriate limitations
on the location or operation of a
vending facility upon finding that the
granting of a priority under the Act
would adversely affect the interests of
the United States. The On-Site Official
shall justify this limitation in writing
through the Head of the DoD
Component concerned and the
PDUSD(P&R) to the Secretary of
Education for determination of whether
the limitation is warranted.
(iii) Notify State licensing agencies of
acquisition or substantial alteration or
renovation of property;
(iv) Negotiate with State licensing
agencies on other matters and adhere to
guidance provided in § 260.6 of this
part.
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§ 260.6
Procedures.
The DoD Components in control of
the maintenance, operation, and
protection of Federal property shall take
necessary action to ensure the
requirements set forth in this Section
are implemented for these properties.
(a) The blind have a priority to
operate vending facilities on DoD
property, whenever feasible, in light of
appropriate space and potential
patronage. Implementation of this
priority is not required when:
(1) The number of people using the
property is or will be insufficient to
support a vending facility; or
(2) The Secretary of Education
determines that the limitation on the
placement or operation of a vending
1 Available from https://www.dtic.mil/whs/
directives/corres/html/416570.htm.
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facility is warranted pursuant to
260.5(b)(5)(ii), which is binding on the
DoD Component. Notice of the Secretary
of Education’s determination will be
published in the Federal Register.
(b) Applications for permits by the
State licensing agency to operate
vending facilities (except cafeterias) on
DoD-controlled property must be
submitted in writing to the Head of the
DoD Component concerned through the
on-site official. When an application is
not approved, the Head of the DoD
Component concerned shall advise the
State licensing agency in writing and
shall indicate the reasons for the
disapproval. Permits shall describe the
location of the vending facility and shall
be subject to the following
requirements:
(1) The permit shall be issued in the
name of the State licensing agency.
(2) The permit shall be issued for an
indefinite period of time subject to
suspension or termination upon failure
to comply with agreed-upon terms. It
shall be subject to termination by either
party on 60 days’ written notice to the
other party, in cases of:
(i) Inactivation of the installation or
activity.
(ii) Loss of use of a building or other
facility housing the vending facility.
(iii) Change in the DoD Component’s
requirements for service.
(iv) Inability of the State licensing
agency to continue to operate the
vending facility.
(3) The permit shall provide:
(i) No charge shall be made by the
DoD Component to the State licensing
agency for normal repair and
maintenance of the building, cleaning
areas adjacent to the designated vending
facility boundaries, or trash removal
from a designated collection point (not
to include any hazardous waste).
(ii) The State licensing agency shall be
responsible for cleaning and
maintaining the vending facility
appearance and its security within the
designated boundaries of such facility
and for all costs of every kind in
conjunction with vending facility
equipment, merchandise, and other
products to be sold, except as provided
in paragraph (b)(3)(v) of this section.
Neither party shall be responsible for
loss or damage to the other’s property,
unless caused by its acts or omissions.
The State licensing agency shall also be
responsible for the acts or omissions of
the blind vendor, the vendor’s
employees, or agents.
(iii) Articles sold at such vending
facilities may consist of newspapers,
periodicals, publications, confections,
tobacco products, foods, beverages,
chances for any lottery authorized by
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62237
State law and conducted by an agency
of a State within such State, and other
articles or services traditionally found
in blind-operated vending facilities
operated under 20 U.S.C. 107, as
determined by the State licensing
agency, in consultation with the on-site
official, to be suitable for a particular
location. Articles and services may be
automatically or manually dispensed.
(iv) Vending facilities shall be
operated in compliance with applicable
Federal, state, interstate and local laws
and regulations, including those
concerning health and sanitation, the
environment, and building codes.
(v) Installation, modification,
relocation, removal, and renovation of
vending facilities shall be subject to the
prior approval of the on-site official and
the State licensing agency. The
initiating party shall pay the costs of
installation, modification, removal,
relocation, or renovation. In any case of
suspension or termination of a permit to
operate a vending facility on the basis
of noncompliance by either party, the
costs of removal from the building shall
be borne by the non-complying party.
(4) The permit shall state that no
charge shall be made to the State
Licensing Authority for the cost of
normal cleaning, maintenance, and
repair of the building structure in and
adjacent to the vending facility areas,
and no charge shall be made to the DoD
for the cost of 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.
(5) In the event the blind licensee fails
to provide satisfactory service or
otherwise fails to comply with the
requirements of the permit issued to the
State licensing agency, the on-site
official shall, after coordinating with the
Head of the DoD Component, notify the
State licensing agency of this deficiency
in writing and request corrective action
within a specified reasonable time. The
notice shall indicate that failure to
correct the deficiency shall result in
temporary suspension or termination of
the permit, as appropriate. Suspension
or termination action shall be taken by
the Head of the DoD Component
concerned after consultation with the
PDUSD(P&R).
(c) Any DoD Component-acquired
(purchased, rented, leased, or
constructed), substantially altered, or
renovated building is required to have
one or more satisfactory sites for a
blind-operated vending facility, except
as provided in paragraph (c)(1) of this
section.
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Federal Register / Vol. 74, No. 227 / Friday, November 27, 2009 / Rules and Regulations
(1) A determination that a building
contains a satisfactory site or sites is
presumed if the State licensing agency
and the on-site official consult and agree
that the site or sites provided are
satisfactory.
(i) The Heads of the DoD Components
shall notify the appropriate State
licensing agency 2 by certified or
registered mail, return receipt requested,
of buildings to be acquired or
substantially altered or renovated. This
notification shall be provided at least 60
days in advance of the intended
acquisition date or the initiation of
actual construction, alteration, or
renovation. As a practical matter, the
State licensing agency should be
contacted early in the planning or
design stage of a project. This
notification shall:
(A) State that a satisfactory site(s) for
the location and operation of a blind
vending facility is (are) included in the
plans for the building.
(B) Include a copy of a single line
drawing indicating the proposed
location of such site(s).
(C) Advise the State licensing agency
that, subject to the approval of the DoD
Component, it shall be offered the
opportunity to select the location and
type of vending facility to be operated
by a blind vendor prior to completion of
the final space layout of the building.
(ii) Advise that the State licensing
agency must respond within 30 days to
the DoD Component, acknowledging
receipt of the correspondence from the
DoD Component and indicating whether
it is interested in establishing a vending
facility and, if interested, signifying its
agreement or alternate selection of a
location and its selection of type of
vending facility. A copy of the written
notice to the State licensing agency and
the State licensing agency’s response, if
any, shall be provided to the Secretary
of Education.
(iii) If the State licensing agency’s
response to the DoD Component
indicates it does not desire to establish
and operate a vending facility and sets
forth any specific basis other than the
insufficiency of patrons to support a
vending facility, or if the State licensing
agency does not respond within 30
days, then a site meeting the anticipated
needs of the DoD Component shall be
incorporated. Each such site shall have
a minimum of 250 square feet for sale
of items and for storage of articles
necessary for the operation of a vending
facility.
2 See the U.S. Department of Education Web site,
Office of Special Education and Rehabilitative
Services at https://www.ed.gov.
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(iv) If the State licensing agency
indicates that the number of persons
using the property is or will be
insufficient to support a vending
facility, then a satisfactory site to be
operated under the auspices of the State
licensing agency shall not be
incorporated. The On-Site Official shall,
through the Head of the DoD
component, notify the Secretary of
Education of the State licensing
agency’s response.
(2) The requirement to provide a
satisfactory site shall not apply:
(i) When fewer than 100 Federal
employees (as defined in § 260.3 of this
part) are located in the building during
normal working hours; or
(ii) When the building contains fewer
than 15,000 square feet to be used for
Federal Government purposes and the
Federal Government space is used to
provide services to the general public.
(iii) The provisions of paragraphs
(c)(2)(i) and (c)(2)(ii) of this section do
not preclude arrangements under which
blind vending facilities may be
established in buildings of a size or with
an employee population less than that
specified. For example, if a building is
to be constructed that will contain only
30 Federal employees, upon agreement
of the on-site official and the State
licensing agency, the DoD Component
may decide to provide a satisfactory site
for a blind vending facility.
(3) When a DoD Component is leasing
all or part of a privately owned building
in which the lessor or any of its tenants
have an existing restaurant or other food
facility in a part of the building not
covered by the lease and operation of a
vending facility would be in substantial
direct competition with such restaurant
or other food operation, the requirement
to provide a satisfactory site does not
apply.
(d) Vending machine income
generated by the Department of Defense
shall be shared with State licensing
agencies as prescribed in paragraph
(d)(1) of this section. The on-site official
is responsible for collecting and
accounting for such vending machine
income (as defined in § 260.3 of this
part) and for ensuring compliance with
the requirements of this paragraph.
(1) The vending machine incomesharing requirements are as follows:
(i) One hundred percent of the
vending machine income from vending
machines in direct competition with
blind-operated vending facilities shall
be provided to the State licensing
agency.
(ii) Fifty percent of the vending
machine income from vending
machines not in direct competition with
blind-operated vending facilities shall
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
be provided to the State licensing
agency.
(iii) Notwithstanding paragraph
(d)(1)(ii) of this section, thirty percent of
the vending machine income from
vending machines not in direct
competition with blind-operated
vending facilities and located where at
least fifty percent of the total hours
worked on the premises occurs during
other than normal working hours (as
defined in § 260.3 of this part) shall be
provided to the State licensing agency.
(2) The determination of whether a
vending machine is in direct
competition with the blind-operated
vending facility is the responsibility of
the on-site official subject to the
concurrence of the State licensing
agency.
(3) These vending machine incomesharing requirements do not apply to:
(i) Income from vending machines
operated by or for the military
exchanges or ships’ store systems; or
(ii) Income from vending machines,
not in direct competition with a blindoperated vending facility, at any
individual location, installation, or
facility where the total of the vending
machine income from all such machines
at such location, installation, or facility
does not exceed $3,000 annually.
(4) The payment to State licensing
agencies under these income-sharing
requirements must be made quarterly on
a fiscal year basis.
(e) Pursuant to 34 CFR 395.37,
whenever any State licensing agency for
the blind determines that any DoD
activity is failing to comply with the
provisions of 20 U.S.C. 107 and all
informal attempts to resolve the issues
have been unsuccessful, the State
licensing agency may file a complaint
with the Secretary of Education.
§ 260.7
Information requirements.
Within 90 days after the end of each
fiscal year, the DoD Components shall
forward to the PDUSD(P&R) 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
(as defined in § 260.3 of this part,
excluding income exempt from the
income sharing requirements by
§ 260.6(d)(3) of this part), and the
amount of such vending machine
income disbursed to State licensing
agencies in each State. These reporting
requirements have been assigned Report
Control Symbol DD–P&R(A)2210,
according to DoD 8910.1–M,
‘‘Department of Defense Procedures for
E:\FR\FM\27NOR1.SGM
27NOR1
Federal Register / Vol. 74, No. 227 / Friday, November 27, 2009 / Rules and Regulations
Management of Information
Requirements.’’ 3
Dated: November 20, 2009.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. E9–28356 Filed 11–25–09; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Parts 100, 117, 147, and 165
[USCG–2009–1039]
Quarterly Listings; Safety Zones,
Security Zones, Special Local
Regulations, and Drawbridge
Operation Regulations
Coast Guard, DHS.
Notice of expired temporary
rules issued.
AGENCY:
ACTION:
SUMMARY: This document provides
required notice of substantive rules
issued by the Coast Guard and
temporarily effective between March
2005 and November 2008, that expired
before they could be published in the
Federal Register. This notice lists
temporary safety zones, security zones,
special local regulations, and
drawbridge operation regulations, all of
limited duration and for which timely
publication in the Federal Register was
not possible.
DATES: This document lists temporary
Coast Guard rules between March 26,
2005 and November 29, 2008 that
became effective and were terminated
before they could be published in the
Federal Register.
ADDRESSES: The Docket Management
Facility maintains the public docket for
this notice. Documents indicated in this
notice will be available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building ground
floor, room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: For
questions on this notice contact Yeoman
First Class Denise Johnson, Office of
Regulations and Administrative Law,
telephone (202) 372–3862. For questions
on viewing, or on submitting material to
the docket, contact Ms. Angie Ames,
Docket Operations, telephone 202–366–
5115.
SUPPLEMENTARY INFORMATION: Coast
Guard District Commanders and
Captains of the Port (COTP) must be
immediately responsive to the safety
and security needs within their
jurisdiction; therefore, District
Commanders and COTPs have been
delegated the authority to issue certain
local regulations. Safety zones may be
established for safety or environmental
purposes. A safety zone may be
stationary and described by fixed limits
or it may be described as a zone around
a vessel in motion. Security zones limit
access to prevent injury or damage to
vessels, ports, or waterfront facilities
and may also describe a zone around a
vessel in motion. Special local
regulations are issued to enhance the
safety of participants and spectators at
regattas and other marine events.
Drawbridge operation regulations
authorize changes to drawbridge
schedules to accommodate bridge
repairs, seasonal vessel traffic, and local
public events. Timely publication of
these rules in the Federal Register is
often precluded when a rule responds to
an emergency, or when an event occurs
without sufficient advance notice. The
62239
affected public is, however, informed of
these rules through Local Notices to
Mariners, press releases, and other
means. Moreover, actual notification is
provided by Coast Guard patrol vessels
enforcing the restrictions imposed by
the rule. Because Federal Register
publication was not possible before the
beginning of the effective period,
mariners were personally notified of the
contents of these safety zones, security
zones, special local regulations,
regulated navigation areas or
drawbridge operation regulations by
Coast Guard officials’ on-scene prior to
any enforcement action. However, the
Coast Guard, by law, must publish in
the Federal Register notice of
substantive rules adopted. To meet this
obligation without imposing undue
expense on the public, the Coast Guard
periodically publishes a list of these
temporary safety zones, security zones,
special local regulations, regulated
navigation areas and drawbridge
operation regulations. Permanent rules
are not included in this list because they
are published in their entirety in the
Federal Register. Temporary rules are
also published in their entirety if
sufficient time is available to do so
before they are placed in effect or
terminated. The temporary rules listed
in this notice have been exempted from
review under Executive Order 12666,
Regulatory Planning and Review,
because of their emergency nature, or
limited scope and temporary
effectiveness.
The following unpublished rules were
placed in effect temporarily during the
period between March 2005 and
November 2008 unless otherwise
indicated.
Dated: November 20, 2009.
S.G. Venckus,
Chief, Office of Regulations and
Administrative Law.
2ND QUARTER 2008 LISTING
srobinson on DSKHWCL6B1PROD with RULES
Docket No.
CGD08–06–017
CGD09–06–115
CGD09–08–019
CGD09–08–020
CGD09–08–026
CGD09–08–031
CGD09–08–033
CGD09–08–051
CGD09–08–054
CGD09–08–057
CGD09–08–058
CGD09–08–059
CGD09–08–067
CGD09–08–081
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Location
Type
Effective date
Illinois Waterway, IL ................
Frankfort, MI ...........................
Chicago, IL ..............................
Algonac, MI .............................
Toledo, OH .............................
Detroit, MI ...............................
Milwaukee, WI ........................
Paradise, MI ............................
Put In Bay, OH .......................
Cedarville, MI ..........................
Munising, MI ...........................
Sault Ste. Marie, MI ................
Detroit, MI ...............................
Harrisville, MI ..........................
Drawbridge Operation Regulation (Part 117) ..........................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
Safety Zones (Parts 147 and 165) ..........................................
3 Available from https://www.dtic.mil/whs/
directives/corres/pdf/891001m.pdf.
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4/24/2006
9/2/2008
5/15/2008
6/2/2008
5/24/2008
7/21/2008
6/5/2008
7/4/2008
7/4/2008
7/4/2008
7/4/2008
7/4/2008
7/4/2008
7/7/2008
Agencies
[Federal Register Volume 74, Number 227 (Friday, November 27, 2009)]
[Rules and Regulations]
[Pages 62234-62239]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28356]
[[Page 62234]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
[DoD-2008-OS-0009; RIN 0790-AH77]
32 CFR Part 260
Vending Facility Program for the Blind on DoD-Controlled Federal
Property
AGENCY: Department of Defense.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule reinstates Department of Defense regulations
related to the vending facility program for the blind on DoD-controlled
Federal property. This rule shall not apply to military dining
facilities that are subject to and defined in section 856 of the John
Warner National Defense Authorization Act for Fiscal Year 2007.
DATES: Effective Date: This rule is effective December 28, 2009.
FOR FURTHER INFORMATION CONTACT: Olivia Smith, 703-602-4601.
SUPPLEMENTARY INFORMATION:
A. Summary
The proposed rule was published in the Federal Register on January
16, 2009 (74 FR 2932-2935). In response to the proposed rule, the DoD
received 93 submissions with 310 comments during the 60-day comment
period. 87 of the submissions contained three identical comments. Other
comments fell into one of the following categories: Expanding the scope
of the rule beyond the Randolph-Sheppard Act (R-SA) as implemented by
the Department of Education (DoEd) in 34 CFR 395; the military dining
exclusion; definitions; the military exchange exemption; references to
DoD policies; allocation and billing of costs; leasing of privately-
owned buildings with existing food facilities; and arbitration.
B. Identical Comments
1. Comment: Make a statement that the DoD intends to comply with
the letter and the spirit of the R-SA.
Response: DoD's policy to extend priority to the blind when
implementing the R-SA is contained in section 260.4.
2. Ensure that the language of the final regulations is consistent
with and preferably identical to regulations issued by the DoEd and
with the language of the R-SA.
Response: The language in the rule is consistent with the DoED
regulations. One variation is the definition of ``cafeteria,'' which
uses the exact definition contained in the R-SA and 34 CFR 395.1(d),
and adds, ``The DoD Component food dispensing facilities that conduct
cafeteria-type operations during part of their normal operating day and
full table-service operations during the remainder of their normal
operating day are not ``cafeterias'' if they engage primarily in full
table service operations.'' DoD added this language to ensure that DoD
food dispensing facilities that use a serving line for only a brief
portion of the day are not considered cafeterias for the purpose of the
Final Rule.
3. Clarify that the R-SA priority applies to all vending
operations, even when the DoD would not be required to provide a
suitable location, and that when there is a change in the contract or
permit, the vending opportunity must be re-offered to the State
Licensing Agency (SLA) even if that agency has previously declined to
exercise the R-SA priority.
Response: Section 260.4 gives the blind priority in the
establishment and operation of vending facilities, except those vending
facilities to which the R-SA does not apply. An SLA shall not forfeit
the R-SA priority for future contract solicitations or permits by
declining the priority for an earlier solicitation. However, there is
no requirement in the R-SA that the DoD terminate an existing contract
because an SLA that previously declined a priority asserts the priority
at a later date.''
C. Additional Comments
1. Expanding the Scope of the Rule. Several comments suggested
changes to expand the scope of the rule beyond the provisions of the R-
SA and the DoEd's implementing rule (34 CFR 395).
Response: The DoD rule is consistent with 34 CFR 395, and DoD does
not have the authority to expand the scope beyond the RSA. One comment
proposed expanding the rule to establish a priority in the operation of
vending operations even when the proposed location does not contain a
suitable location. This suggestion, which would apparently cover
situations when DoD is leasing space in privately owned buildings, is
inconsistent with 20 USC 107a(d)(2). A second comment proposed changing
the definition of ``individual installation, location or facility,''
but the DoD rule uses the definition contained at 34 CFR 395.1(h). A
third comment asked DoD to alter the arbitration procedures delineated
at 34 CFR 395.37 by deleting the word ``all'' from section 260.6(f) of
the proposed rule. However, section 395.37(a) specifically uses the
word ``all'' when referring to informal efforts to resolve issues of
noncompliance.
2. Military Dining Exclusion. Several of the comments recommended
deletion of references to and the definition of military dining
facilities.
Response: Section 260.4(b) has been modified to exclude reference
to Section 856 of the John Warner National Defense Authorization Act
for Fiscal Year 2007, since it only applies to military dining
facilities. The definition of military dining facilities is necessary
to explain that the rule does not apply to such facilities.
3. Definitions. Several of the comments recommended changes to
definitions.
Response: The definitions are consistent with the definitions in 34
CFR 395. The one variation occurs in the definition of ``cafeteria,''
where the proposed rule uses the same definition as 34 CFR 395.1(d),
but adds, ``the DoD Component food dispensing facilities that conduct
cafeteria-type operations during part of their normal operating day and
full table-service operations during the remainder of their normal
operating day are not ``cafeterias'' if they engage primarily in full
table service operations.'' DoD added this language to ensure that DoD
food dispensing facilities that use a serving line for only a brief
portion of the day are not considered cafeterias for the purpose of the
Final Rule. A second comment proposed changing the definition of
``individual installation, location or facility.'' However, the final
rule uses the same definition contained at 34 CFR 395.1(h).
4. Military Exchange Exemption. Several of the comments recommended
limitations on the income-sharing exemption for vending machines
operated by or for the military exchanges or ships store systems.
Response: The income-sharing exemption for vending machines
operated by or for the military exchanges or ships store systems is
codified at Sec. 107d-3(d) of the R-SA and 34 CFR 395.32(h)(1), and
the rule is consistent with both.
5. References to DoD Policies. Several of the comments recommended
deleting references to DoD policies that may be changed without public
notice, comment, or other opportunity for stakeholders to be consulted.
Response: Any DoD publication that grants a right or privilege to
the public or has a substantial or direct impact on any significant
portion of the public is required to be published. Since 32 CFR 260
prescribes implementation of the R-SA within the DoD, it is necessary
to reference applicable DoD policies and publications. The DoD
publications referenced in the Final Rule are available on the internet
at https://www.dtic.mil/whs/directives.
[[Page 62235]]
6. Allocation and Billing of Costs. One commenter recommended using
more explicit language in 260.6(b)(4) to specify the methodology for
allocating costs, prohibiting retroactive or prospective billing,
limiting costs to similar costs charged to other food vendors,
including military exchanges and commercial enterprises, and adapting
charges as the number of people using the facility fluctuates.
Response: Pursuant to the comment, we have removed the language at
section 260.6(b)(4) of the final rule and inserted language consistent
with 34 CFR 395.35, which provides that the permit shall state (1) no
charge shall be made to the State Licensing agency for the cost of
normal cleaning, maintenance, and repair of the building structure in
and adjacent to the vending facility areas, and (2) no charge shall be
made to the DoD for the cost of 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.
7. Leasing of Privately-Owned Buildings with Existing Food
Facilities. One comment recommended adding language that DoD components
should avoid leasing all or part of a privately-owned building in which
there is an existing food facility that would be in direct competition
with a R-SA operation, resulting in the absence of a requirement to
provide a satisfactory site.
Response: This comment is inconsistent with 20 U.S.C.
107a(d)(2)(B), which exempts from the R-SA privately owned buildings
``any part of which is leased by any department, agency or
instrumentality of the United States and in which, (i) prior to the
execution of such lease, the lessor or any of his tenants had in
operation a restaurant or other food facility in a part of the building
no included in such lease, and (ii) the operation of such a vending
facility by a blind person would be in proximate and substantial direct
competition with such restaurant or other food facility except that
each such department, agency and instrumentality shall make every
effort to lease property in privately owned buildings capable of
accommodating a vending facility.'' Moreover, the suggested language
would overly restrict the DoD's ability to lease facilities.
8. Arbitration. One comment recommended deleting the word ``all''
in section 260.6(f) to clarify who has the authority to determine that
all informal attempts to resolve the issues have been unsuccessful.
Response: The final rule is consistent with 34 CFR 395.37(a), which
specifically uses the word ``all'' when referring to informal efforts
to resolve issues.
Executive Order 12866, ``Regulatory Planning and Review''
It has been certified that 32 CFR part 260 does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 260 does not contain a
Federal mandate that may result in the expenditure by State, local and
tribunal governments, in aggregate, or by the private sector, of $100
million or more in any 1 year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 260 is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. This rule is consistent with the Randolph-Sheppard
Act (20 U.S.C. 107), the implementing regulations of the U.S.
Department of Education (34 CFR part 395), and Section 856 of the John
Warner National Defense Authorization Act for Fiscal Year 2007.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 260 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 260 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 260
Persons with disabilities, Blind, Vending.
0
Accordingly, 32 CFR part 260 is added to read as follows:
PART 260--VENDING FACILITY PROGRAM FOR THE BLIND ON DOD-CONTROLLED
FEDERAL PROPERTY
Sec.
260.1 Purpose.
260.2 Applicability.
260.3 Definitions.
260.4 Policy.
260.5 Responsibilities.
260.6 Procedures.
260.7 Information requirements.
Sec. 260.1 Purpose.
This part:
(a) Assigns responsibilities in compliance with 20 U.S.C. 107 et
seq. and 34 CFR part 395 and establishes the following policies within
the Department of Defense:
(1) Uniform policies for application of priority accorded the blind
to operate vending facilities;
(2) Requirements for satisfactory vending facility sites on DoD-
controlled property; and
(3) Vending machine income-sharing requirements on DoD-controlled
property
(b) Prescribes requirements and operating procedures for the
vending facility program for the blind on DoD-controlled property.
(c) Does NOT apply to full food services, mess attendant services,
or services supporting the operation of a military dining facility.
Sec. 260.2 Applicability.
This part applies to:
(a) Office of the Secretary of Defense, the Military Departments,
the Office of the Chairman of the Joint Chiefs of Staff and the Joint
Staff, the Combatant Commands, the Office of the Inspector General of
the Department of Defense, the Defense Agencies, the Department of
Defense Field Activities, and all other organizational entities in the
Department of Defense (hereafter referred to collectively as the ``DoD
Components'').
(b) Vending facility sites on DoD-controlled property.
Sec. 260.3 Definitions.
Blind licensee. A blind person licensed by the State licensing
agency to
[[Page 62236]]
operate a vending facility on DoD-controlled property.
Cafeteria. A food dispensing facility capable of providing a broad
variety of prepared foods and beverages (including hot meals) primarily
through the use of a line where the customer serves himself or herself
from displayed selections. A cafeteria may be fully automatic, or some
limited waiter or waitress service may be available and provided within
a cafeteria and table or booth seating facilities are always provided.
The DoD Component food dispensing facilities that conduct cafeteria-
type operations during part of their normal operating day and full
table-service operations during the remainder of their normal operating
day are not ``cafeterias'' if they engage primarily in full table
service operations.
Direct competition. The presence and operation of a DoD Component
vending machine or a vending facility on the same DoD-controlled
property as a vending facility operated by a blind vendor. Vending
machines or vending facilities operated in areas serving employees, the
majority of whom normally do not have 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.
DoD-controlled property. Federal property that is owned, leased, or
occupied by DoD.
Federal employees. Civilian appropriated fund and nonappropriated
fund employees of the United States.
Federal property. Any building, land, or other real property owned,
leased, or occupied by DoD in the United States.
Individual location, installation, or facility. A single building
or a self-contained group of buildings. A self-contained group of
buildings refers to two or more buildings that must be located in close
proximity to each other and between which a majority of the Federal
employees working in such buildings regularly move from one building to
another in the normal course of their official business during a normal
working day.
License. A written instrument issued by a State licensing agency to
a blind person, authorizing that person to operate a vending facility
on DoD-controlled property.
Military dining facility. A facility owned, operated, or leased and
wholly controlled by DoD and used to provide dining services to members
of the Armed Forces, including a cafeteria, military mess hall,
military troop dining facility, or any similar dining facility operated
for the purpose of providing meals to members of the Armed Forces.
Normal working hours. An 8-hour work period between the approximate
hours of 0800 and 1800, Monday through Friday.
On-site official. The individual in command of an installation or
separate facility or location. For the Pentagon Reservation only, the
Washington Headquarters Services (WHS) Director of the Defense
Facilities Directorate is designated as the on-site official.
Permit. The official approval given a State licensing agency by a
department, agency, or instrumentality responsible for DoD-controlled
property whereby the State licensing agency is authorized to establish
a vending facility.
Satisfactory site. An area fully accessible to vending facility
patrons and having sufficient electrical, plumbing, heating, and
ventilation outlets for the location and operation of a vending
facility in compliance with applicable health laws and building
requirements. A ``satisfactory site'' shall have a minimum of 250
square feet available for sale of items and for storage of articles
necessary for the operation of a vending facility.
State. A state, the District of Columbia, the Commonwealth of
Puerto Rico, a territory, or possession of the United States.
State licensing agency. The State agency designated by the
Secretary of Education, to issue licenses to blind persons for the
operation of vending facilities on Federal and other property.
Substantial alteration or renovation. A permanent material change
in the floor area of a building that would render it appropriate for
the location and operation of a vending facility by a blind vendor.
United States. The several States, the District of Columbia, the
Commonwealth of Puerto Rico, and the territories and possessions of the
United States.
Vending facility. Automatic vending machines, cafeterias, snack
bars, cart service, shelters, counters, and such other appropriate
auxiliary equipment that may be operated by blind licensees and that
are necessary for the sale of newspapers, periodicals, confections,
tobacco products, foods, beverages, and other articles and services to
be dispensed automatically or manually and that are prepared on or off
the premises according to applicable health laws. Also includes
facilities providing the vending or exchange of chances for any lottery
authorized by State law and conducted by an agency of a State within
such State.
Vending machine. For the purposes of assigning vending machine
income, a coin or currency operated machine that 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.
Vending machine income. (1) DoD Component receipts from the DoD
Component vending machine operations on DoD-controlled property, where
the machines are operated by any DoD Component activity, less costs
incurred; or
(2) Commissions received by any DoD Component activity from a
commercial vending firm that provides vending machines on DoD-
controlled property.
(3) ``Costs incurred'' include costs of goods, including reasonable
service and maintenance costs in accordance with customary business
practices of commercial vending concerns, repair, cleaning,
depreciation, supervisory and administrative personnel, normal
accounting, and accounting for income-sharing.
Vendor. A blind licensee who is operating a vending facility on
DoD-controlled property.
Sec. 260.4 Policy.
It is DoD policy that a DoD Component having accountability for
real property shall extend priority on such property to the blind when
implementing the Randolph-Sheppard Act, as set out in the following
paragraphs:
(a) The blind shall be given priority in the establishment and
operation of vending facilities.
(b) The blind shall be given priority in the award of contracts to
operate cafeterias.
(c) In conjunction with acquisition or substantial alteration or
renovation of a building, satisfactory sites shall be provided for
operation of blind vending facilities.
(d) Specified income from vending machines operated on DoD-
controlled property by a DoD Component either directly or by contract
shall be given to State licensing agencies.
Sec. 260.5 Responsibilities.
(a) The Principal Deputy Under Secretary of Defense for Personnel
and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for
Personnel and Readiness, shall establish policies and procedures and
monitor the Vending Facility Program.
[[Page 62237]]
(b) The Heads of the DoD Components, in monitoring their respective
programs, shall:
(1) Approve or disapprove State licensing agency applications for
permits and the provision of satisfactory sites;
(2) Issue policies and procedures to designate and establish
responsibilities of the on-site official;
(3) Suspend or terminate a permit to operate a vending facility
after consulting with the PDUSD(P&R) where circumstances warrant.
(4) Ensure appropriate real property outgrants are accomplished in
accordance with DoDI 4165.70, ``Real Property Management,'' \1\ and
consistent with the Randolph-Sheppard Act (20 U.S.C. 107) and the
implementing regulations (34 CFR part 395).
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\1\ Available from https://www.dtic.mil/whs/directives/corres/html/416570.htm.
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(5) The On-Site Official shall be the point of contact with State
licensing agencies and shall:
(i) Consult with State licensing agencies on articles and services
to be provided;
(ii) Establish appropriate limitations on the location or operation
of a vending facility upon finding that the granting of a priority
under the Act would adversely affect the interests of the United
States. The On-Site Official shall justify this limitation in writing
through the Head of the DoD Component concerned and the PDUSD(P&R) to
the Secretary of Education for determination of whether the limitation
is warranted.
(iii) Notify State licensing agencies of acquisition or substantial
alteration or renovation of property;
(iv) Negotiate with State licensing agencies on other matters and
adhere to guidance provided in Sec. 260.6 of this part.
Sec. 260.6 Procedures.
The DoD Components in control of the maintenance, operation, and
protection of Federal property shall take necessary action to ensure
the requirements set forth in this Section are implemented for these
properties.
(a) The blind have a priority to operate vending facilities on DoD
property, whenever feasible, in light of appropriate space and
potential patronage. Implementation of this priority is not required
when:
(1) The number of people using the property is or will be
insufficient to support a vending facility; or
(2) The Secretary of Education determines that the limitation on
the placement or operation of a vending facility is warranted pursuant
to 260.5(b)(5)(ii), which is binding on the DoD Component. Notice of
the Secretary of Education's determination will be published in the
Federal Register.
(b) Applications for permits by the State licensing agency to
operate vending facilities (except cafeterias) on DoD-controlled
property must be submitted in writing to the Head of the DoD Component
concerned through the on-site official. When an application is not
approved, the Head of the DoD Component concerned shall advise the
State licensing agency in writing and shall indicate the reasons for
the disapproval. Permits shall describe the location of the vending
facility and shall be subject to the following requirements:
(1) The permit shall be issued in the name of the State licensing
agency.
(2) The permit shall be issued for an indefinite period of time
subject to suspension or termination upon failure to comply with
agreed-upon terms. It shall be subject to termination by either party
on 60 days' written notice to the other party, in cases of:
(i) Inactivation of the installation or activity.
(ii) Loss of use of a building or other facility housing the
vending facility.
(iii) Change in the DoD Component's requirements for service.
(iv) Inability of the State licensing agency to continue to operate
the vending facility.
(3) The permit shall provide:
(i) No charge shall be made by the DoD Component to the State
licensing agency for normal repair and maintenance of the building,
cleaning areas adjacent to the designated vending facility boundaries,
or trash removal from a designated collection point (not to include any
hazardous waste).
(ii) The State licensing agency shall be responsible for cleaning
and maintaining the vending facility appearance and its security within
the designated boundaries of such facility and for all costs of every
kind in conjunction with vending facility equipment, merchandise, and
other products to be sold, except as provided in paragraph (b)(3)(v) of
this section. Neither party shall be responsible for loss or damage to
the other's property, unless caused by its acts or omissions. The State
licensing agency shall also be responsible for the acts or omissions of
the blind vendor, the vendor's employees, or agents.
(iii) Articles sold at such vending facilities 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 traditionally found in blind-operated vending facilities
operated under 20 U.S.C. 107, as determined by the State licensing
agency, in consultation with the on-site official, to be suitable for a
particular location. Articles and services may be automatically or
manually dispensed.
(iv) Vending facilities shall be operated in compliance with
applicable Federal, state, interstate and local laws and regulations,
including those concerning health and sanitation, the environment, and
building codes.
(v) Installation, modification, relocation, removal, and renovation
of vending facilities shall be subject to the prior approval of the on-
site official and the State licensing agency. The initiating party
shall pay the costs of installation, modification, removal, relocation,
or renovation. In any case of suspension or termination of a permit to
operate a vending facility on the basis of noncompliance by either
party, the costs of removal from the building shall be borne by the
non-complying party.
(4) The permit shall state that no charge shall be made to the
State Licensing Authority for the cost of normal cleaning, maintenance,
and repair of the building structure in and adjacent to the vending
facility areas, and no charge shall be made to the DoD for the cost of
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.
(5) In the event the blind licensee fails to provide satisfactory
service or otherwise fails to comply with the requirements of the
permit issued to the State licensing agency, the on-site official
shall, after coordinating with the Head of the DoD Component, notify
the State licensing agency of this deficiency in writing and request
corrective action within a specified reasonable time. The notice shall
indicate that failure to correct the deficiency shall result in
temporary suspension or termination of the permit, as appropriate.
Suspension or termination action shall be taken by the Head of the DoD
Component concerned after consultation with the PDUSD(P&R).
(c) Any DoD Component-acquired (purchased, rented, leased, or
constructed), substantially altered, or renovated building is required
to have one or more satisfactory sites for a blind-operated vending
facility, except as provided in paragraph (c)(1) of this section.
[[Page 62238]]
(1) A determination that a building contains a satisfactory site or
sites is presumed if the State licensing agency and the on-site
official consult and agree that the site or sites provided are
satisfactory.
(i) The Heads of the DoD Components shall notify the appropriate
State licensing agency \2\ by certified or registered mail, return
receipt requested, of buildings to be acquired or substantially altered
or renovated. This notification shall be provided at least 60 days in
advance of the intended acquisition date or the initiation of actual
construction, alteration, or renovation. As a practical matter, the
State licensing agency should be contacted early in the planning or
design stage of a project. This notification shall:
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\2\ See the U.S. Department of Education Web site, Office of
Special Education and Rehabilitative Services at https://www.ed.gov.
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(A) State that a satisfactory site(s) for the location and
operation of a blind vending facility is (are) included in the plans
for the building.
(B) Include a copy of a single line drawing indicating the proposed
location of such site(s).
(C) Advise the State licensing agency that, subject to the approval
of the DoD Component, it shall be offered the opportunity to select the
location and type of vending facility to be operated by a blind vendor
prior to completion of the final space layout of the building.
(ii) Advise that the State licensing agency must respond within 30
days to the DoD Component, acknowledging receipt of the correspondence
from the DoD Component and indicating whether it is interested in
establishing a vending facility and, if interested, signifying its
agreement or alternate selection of a location and its selection of
type of vending facility. A copy of the written notice to the State
licensing agency and the State licensing agency's response, if any,
shall be provided to the Secretary of Education.
(iii) If the State licensing agency's response to the DoD Component
indicates it does not desire to establish and operate a vending
facility and sets forth any specific basis other than the insufficiency
of patrons to support a vending facility, or if the State licensing
agency does not respond within 30 days, then a site meeting the
anticipated needs of the DoD Component shall be incorporated. Each such
site shall have a minimum of 250 square feet for sale of items and for
storage of articles necessary for the operation of a vending facility.
(iv) If the State licensing agency indicates that the number of
persons using the property is or will be insufficient to support a
vending facility, then a satisfactory site to be operated under the
auspices of the State licensing agency shall not be incorporated. The
On-Site Official shall, through the Head of the DoD component, notify
the Secretary of Education of the State licensing agency's response.
(2) The requirement to provide a satisfactory site shall not apply:
(i) When fewer than 100 Federal employees (as defined in Sec.
260.3 of this part) are located in the building during normal working
hours; or
(ii) When the building contains fewer than 15,000 square feet to be
used for Federal Government purposes and the Federal Government space
is used to provide services to the general public.
(iii) The provisions of paragraphs (c)(2)(i) and (c)(2)(ii) of this
section do not preclude arrangements under which blind vending
facilities may be established in buildings of a size or with an
employee population less than that specified. For example, if a
building is to be constructed that will contain only 30 Federal
employees, upon agreement of the on-site official and the State
licensing agency, the DoD Component may decide to provide a
satisfactory site for a blind vending facility.
(3) When a DoD Component is leasing all or part of a privately
owned building in which the lessor or any of its tenants have an
existing restaurant or other food facility in a part of the building
not covered by the lease and operation of a vending facility would be
in substantial direct competition with such restaurant or other food
operation, the requirement to provide a satisfactory site does not
apply.
(d) Vending machine income generated by the Department of Defense
shall be shared with State licensing agencies as prescribed in
paragraph (d)(1) of this section. The on-site official is responsible
for collecting and accounting for such vending machine income (as
defined in Sec. 260.3 of this part) and for ensuring compliance with
the requirements of this paragraph.
(1) The vending machine income-sharing requirements are as follows:
(i) One hundred percent of the vending machine income from vending
machines in direct competition with blind-operated vending facilities
shall be provided to the State licensing agency.
(ii) Fifty percent of the vending machine income from vending
machines not in direct competition with blind-operated vending
facilities shall be provided to the State licensing agency.
(iii) Notwithstanding paragraph (d)(1)(ii) of this section, thirty
percent of the vending machine income from vending machines not in
direct competition with blind-operated vending facilities and located
where at least fifty percent of the total hours worked on the premises
occurs during other than normal working hours (as defined in Sec.
260.3 of this part) shall be provided to the State licensing agency.
(2) The determination of whether a vending machine is in direct
competition with the blind-operated vending facility is the
responsibility of the on-site official subject to the concurrence of
the State licensing agency.
(3) These vending machine income-sharing requirements do not apply
to:
(i) Income from vending machines operated by or for the military
exchanges or ships' store systems; or
(ii) Income from vending machines, not in direct competition with a
blind-operated vending facility, at any individual location,
installation, or facility where the total of the vending machine income
from all such machines at such location, installation, or facility does
not exceed $3,000 annually.
(4) The payment to State licensing agencies under these income-
sharing requirements must be made quarterly on a fiscal year basis.
(e) Pursuant to 34 CFR 395.37, whenever any State licensing agency
for the blind determines that any DoD activity is failing to comply
with the provisions of 20 U.S.C. 107 and all informal attempts to
resolve the issues have been unsuccessful, the State licensing agency
may file a complaint with the Secretary of Education.
Sec. 260.7 Information requirements.
Within 90 days after the end of each fiscal year, the DoD
Components shall forward to the PDUSD(P&R) 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 (as
defined in Sec. 260.3 of this part, excluding income exempt from the
income sharing requirements by Sec. 260.6(d)(3) of this part), and the
amount of such vending machine income disbursed to State licensing
agencies in each State. These reporting requirements have been assigned
Report Control Symbol DD-P&R(A)2210, according to DoD 8910.1-M,
``Department of Defense Procedures for
[[Page 62239]]
Management of Information Requirements.'' \3\
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\3\ Available from https://www.dtic.mil/whs/directives/corres/pdf/891001m.pdf.
Dated: November 20, 2009.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E9-28356 Filed 11-25-09; 8:45 am]
BILLING CODE 5001-06-P