[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]



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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