[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Proposed Rules]
[Pages 2932-2935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-460]
[[Page 2932]]
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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: Proposed rule.
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SUMMARY: This proposed rule would reinstate Department of Defense
regulations related to the vending facility program for the blind on
DoD-controlled Federal property. This rule will 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: Comments must be received by March 17, 2009.
ADDRESSES: You may submit comments, identified by docket number and/or
RIN number and title, by any of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Priscilla Pazzano, 703-602-4601.
SUPPLEMENTARY INFORMATION: This proposed rule would reinstate 32 CFR
Part 260 which was removed from the Code of Federal Regulations in 2004
and excepts from applicability military dining facilities that are
subject to and defined in section 856 of the John Warner National
Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364).
Executive Order 12866, ``Regulatory Planning and Review''
It has been certified that proposed 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.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that proposed 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 proposed 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 proposed 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 proposed 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 proposed 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.
Accordingly, 32 CFR part 260 would be 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.
Authority: 20 U.S.C. 107.
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 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
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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 pursuant to Section 856 of the John Warner National
Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364).
(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
(b) The Head 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;
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(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 \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 http://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 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
through the on-site official. When an application is not approved, the
Head of the DoD Component 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 et seq., 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 also contain appropriate provisions for
reimbursement or direct payment for support services such as utilities
and telephone service.
(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 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 (d)(1) of this section.
(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
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acquisition date or the initiation of actual construction, alteration,
or renovation.
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\2\ See the U.S. Department of Education Web site, Office of
Special Education and Rehabilitative Services at http://www.ed.gov.
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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.
(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 less 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 (d)(iv)(2)(i) and (d)(iv)(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.
(e) Vending machine income generated by the Department of Defense
shall be shared with State licensing agencies as prescribed in
paragraph (e)(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 (e)(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.
(f) 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 et seq. 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(e)(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.\3\
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\3\ Available from http://www.dtic.mil/whs/directives/corres/pdf/891001m.pdf.
Dated: January 8, 2009.
Patricia L. Toppings,
OSD Federal Register, Liaison Officer, Department of Defense.
[FR Doc. E9-460 Filed 1-15-09; 8:45 am]
BILLING CODE 5001-06-P