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Subpart A_Definitions
Sec. 395.1 Terms.
Subpart B_The State Licensing Agency
395.2 Application for designation as a State
licensing agency; general.
395.3 Application for designation as State licensing
agency; content.
395.4 State rules and regulations.
395.5 Approval of application for designation as State
licensing agency.
395.6 Vendor ownership of vending facilities.
395.7 The issuance and conditions of licenses.
395.8 Distribution and use of income from vending
machines on Federal property.
395.9 The setting aside of funds by the State licensing
agency.
395.10 The maintenance and replacement of vending
facility equipment.
395.11 Training program for blind individuals.
395.12 Access to program and financial information.
395.13 Evidentiary hearings and arbitration of vendor
complaints.
395.14 The State Committee of Blind Vendors.
395.15 Use of nominee agreements.
395.16 Permit for the establishment of vending
facilities.
395.17 Suspension of designation as State licensing
agency.
Subpart C_Federal Property Management
395.30 The location and operation of vending
facilities for blind vendors on Federal property.
395.31 Acquisition and occupation of Federal property.
395.32 Collection and distribution of vending machine
income from vending machines on Federal property.
395.33 Operation of cafeterias by blind vendors.
395.34 Application for permits.
395.35 Terms of permit.
395.36 Enforcement procedures.
395.37 Arbitration of State licensing agency
complaints.
395.38 Reports.
Authority: Sec. 2, 49 Stat. 1559, as amended; 20 U.S.C. 107a.
Source: 42 FR 15802, Mar. 23, 1977, unless otherwise noted.
Redesignated at 45 FR 77369, Nov. 21, 1980, and further redesignated at 46 FR
5417, Jan. 19, 1981.
Subpart A_Definitions
Sec. 395.1 Terms.
Unless otherwise indicated in this
part, the terms below are defined as follows:
(a) Act means the Randolph-Sheppard
Vending Stand Act (Pub. L. 74-732), as amended by Pub. L. 83-565 and Pub. L.
93-516, 20 U.S.C., ch. 6A, Sec 107.
(b) Blind licensee means a blind
person licensed by the State licensing agency to operate a vending facility
on Federal or other property.
(c) Blind person means a person who,
after examination by a physician skilled in diseases of the eye or by an
optometrist, whichever such person shall select, has been determined to have
(1) Not more than 20/200 central
visual acuity in the better eye with correcting lenses, or
(2) An equally disabling loss of the
visual field as evidenced by a limitation to the field of vision in the
better eye to such a degree that its widest diameter subtends an angle of no
greater than 20[deg].
(d) Cafeteria means 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 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.
(e) Secretary means the Secretary of
the Rehabilitation Services Administration.
(f) Direct competition means the
presence and operation of a vending machine or a vending facility on the same
premises as a vending facility operated by a blind vendor, except that
vending machines or vending facilities operated in areas serving employees
the majority of whom normally do not have direct access (in terms of
uninterrupted ease of approach and the amount of time required to patronize
the vending facility) to the vending facility operated by a blind vendor
shall not be considered to be in direct competition with the vending facility
operated by a blind vendor.
(g) Federal property means any
building, land, or other real property owned, leased, or occupied by any
department, agency or instrumentality of the United States (including the
Department of Defense and the U.S. Postal Service), or any other instrumentality
wholly owned by the United States, or by any department or agency of the
District of Columbia or any territory or possession of the United States.
(h) Individual location installation
or facility means a single building or a self-contained group of buildings.
In order for two or more buildings to be considered to be a self-contained
group of buildings, such buildings must be located in close proximity to each
other, and a majority of the Federal employees housed in any such building
must regularly move from one building to another in the course of official
business during normal working days.
(i) License means a written instrument
issued by the State licensing agency to a blind person, authorizing such
person to operate a vending facility on Federal or other property.
(j) Management services means
supervision, inspection, quality control, consultation, accounting,
regulating, in-service training, and other related services provided on a
systematic basis to support and improve vending facilities operated by blind
vendors. Management services does not include those services or costs which
pertain to the on-going operation of an individual facility after the initial
establishment period.
(k) Net proceeds means the amount
remaining from the sale of articles or services of vending facilities, and
any vending machine or other income accruing to blind vendors after deducting
the cost of such sale and other expenses (excluding set-aside charges
required to be paid by such blind vendors).
(l) Nominee means a nonprofit agency
or organization designated by the State licensing agency through a written
agreement to act as its agent in the provision of services to blind licensees
under the State's vending facility program.
(m) Normal working hours means an
eight hour work period between the approximate hours of 8:00 a.m., to 6:00
p.m., Monday through Friday.
(n) Other property means property
which is not Federal property and on which vending facilities are established
or operated by the use of any funds derived in whole or in part, directly or
indirectly, from the operation of vending facilities on any Federal property.
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(o) Permit means the official approval given a State licensing agency by a
department, agency or instrumentality in control of the maintenance,
operation, and protection of Federal property, or person in control of other
property, whereby the State licensing agency is authorized to establish a
vending facility.
(p) Program means all the activities of the licensing agency under this
part related to vending facilities on Federal and other property.
(q) Satisfactory site means an area fully accessible to vending facility
patrons and having:
(1) Effective on March 23, 1977 a minimum of 250 square feet available for
the vending and storage of articles necessary for the operation of a vending
facility; and
(2) Sufficient electrical plumbing, heating, and ventilation outlets for
the location and operation of a vending facility in accordance with
applicable health laws and building codes.
(r) Secretary means the Secretary of Education.
(s) Set-aside funds means funds which accrue to a State licensing agency
from an assessment against the net proceeds of each vending facility in the
State's vending facility program and any income from vending machines on
Federal property which accrues to the State licensing agency.
(t) State means a State, territory, possession, Puerto Rico, or the
District of Columbia.
(u) State vocational rehabilitation agency means that agency in the State
providing vocational rehabilitation services to the blind as the sole State
agency under a State plan for vocational rehabilitation services approved
pursuant to the provisions of the Rehabilitation Act of 1973 (29 U.S.C., ch.
16).
(v) State licensing agency means the State agency designated by the
Secretary under this part to issue licenses to blind persons for the
operation of vending facilities on Federal and other property.
(w) United States includes the several States, territories, and possessions
of the United States, Puerto Rico, and the District of Columbia.
(x) Vending facility means automatic vending machines, cafeterias, snack
bars, cart service, shelters, counters, and such other appropriate auxiliary
equipment which may be operated by blind licensees and which is necessary for
the sale of newspapers, periodicals, confections, tobacco products, foods,
beverages, and other articles or services dispensed automatically or manually
and prepared on or off the premises in accordance with all applicable health
laws, and including the vending or exchange of changes for any lottery
authorized by State law and conducted by an agency of a State within such
State.
(y) Vending machine, for the purpose of assigning vending machine income
under this part, means a coin or currency operated machine which dispenses
articles or services, except that those machines operated by the United
States Postal Service for the sale of postage stamps or other postal products
and services, machines providing services of a recreational nature, and
telephones shall not be considered to be vending machines.
(z) Vending machine income means receipts (other than those of a blind
vendor) from vending machine operations on Federal property, after deducting
the cost of goods sold (including reasonable service and maintenance costs in
accordance with customary business practices of commercial vending concerns,
where the machines are operated, serviced, or maintained by, or with the
approval of, a department, agency, or instrumentality of the United States,
or commissions paid (other than to a blind vendor) by a commercial vending
concern which operates, services, and maintains vending machines on Federal
property for, or with the approval of, a department, agency, or instrumentality
of the United States.
(aa) Vendor means a blind licensee who is operating a vending facility on
Federal or other property.
(bb) Vocational rehabilitation services means those services as defined in
Sec. 1361.1(ee) (1) and (2) of this chapter.
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Subpart B_The State Licensing Agency
Sec. 395.2 Application for
designation as a State licensing agency; general.
(a) An application for designation as
a State licensing agency may be submitted only by the State vocational
rehabilitation agency providing vocational rehabilitation services to the
blind under an approved State plan for vocational rehabilitation services
under part 1361 of this chapter.
(b) Such application shall be:
(1) Submitted in writing to the
Secretary;
(2) Approved by the chief executive of
the State; and
(3) Transmitted over the signature of
the administrator of the State agency making application.
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Sec. 395.3 Application for
designation as State licensing agency; content.
(a) An application for designation as
a State licensing agency under Sec. 395.2 shall indicate:
(1) The State licensing agency's legal
authority to administer the program, including its authority to promulgate
rules and regulations to govern the program;
(2) The State licensing agency's
organization for carrying out the program, including a description of the
methods for coordinating the State's vending facility program and the State's
vocational rehabilitation program, with special reference to the provision of
such post-employment services necessary to assure that the maximum vocational
potential of each blind vendor is achieved;
(3) The policies and standards to be
employed in the selection of suitable locations for vending facilities;
(4) The methods to be used to ensure
the continuing and active participation of the State Committee of Blind
Vendors in matters affecting policy and program development and
administration.
(5) The policies to be followed in
making suitable vending facility equipment and adequate initial stock
available to a vendor;
(6) The sources of funds for the
administration of the program;
(7) The policies and standards
governing the relationship of the State licensing agency to the vendors,
including their selection, duties, supervision, transfer, promotion,
financial participation, rights to a full evidentiary hearing concerning a
State licensing agency action, and, where necessary, rights for the submittal
of complaints to an arbitration panel;
(8) The methods to be followed in
providing suitable training, including on-the-job training and, where
appropriate, upward mobility training, to blind vendors;
(9) The arrangements made or
contemplated, if any, for the utilization of the services of any nominee
under Sec. 395.15; the agreements therefor and the services to be provided;
the procedures for the supervision and control of the services provided by
such nominee and the methods used in evaluating services received, the basis
for remuneration, and the fiscal controls and accounting procedures;
(10) The arrangements made or
contemplated, if any, for the vesting in accordance with the laws of the
State, of the right, title to, and interest in vending facility equipment or
stock (including vending machines), used in the program, in a nominee to hold
such right, title to, and interest for program purposes; and
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(11) The assurances of the State licensing agency that it will:
(i) Cooperate with the Secretary in applying the requirements of the Act
in a uniform manner;
(ii) Take effective action, including the termination of licenses, to
carry out full responsibility for the supervision and management of each
vending facility in its program in accordance with its established rules and
regulations, this part, and the terms and conditions governing the permit;
(iii) Submit promptly to the Secretary for approval a description of any
changes in the legal authority of the State licensing agency, its rules and
regulations, blind vendor agreements, schedules for the setting aside of
funds, contractual arrangements for the furnishing of services by a nominee,
arrangements for carrying general liability and product liability insurance,
and any other matters which form a part of the application;
(iv) If it intends to set aside, or cause to be set aside, funds from the
net proceeds of the operation of vending facilities, obtain a prior
determination by the Secretary that the amount of such funds to be set aside
is reasonable;
(v) Establish policies against discrimination of any blind vendor on the
basis of sex, age, physical or mental impairment, creed, color, national
origin, or political affiliation;
(vi) Furnish each vendor a copy of its rules and regulations and a
description of the arrangements for providing services, and take adequate
steps to assure that each vendor understands the provisions of the permit and
any agreement under which he operates, as evidenced by his signed statements:
(vii) Submit to an arbitration panel those grievances of any vendor
unresolved after a full evidentiary hearing;
(viii) Adopt accounting procedures and maintain financial records in a
manner necessary to provide for each vending facility and for the State's
vending facility program a classification of financial transactions in such
detail as is sufficient to enable evaluation of performance; and
(ix) Maintain records and make reports in such form and containing such
information as the Secretary may require, make such records available for
audit purposes, and comply with such provisions as the Secretary may find
necessary to assure the correctness and verification of such reports.
(b) An application submitted under Sec. 395.2 shall be accompanied by a
copy of State rules and regulations affecting the administration and
operation of the State's vending facility program.
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Sec. 395.4 State rules and
regulations.
(a) The State licensing agency shall
promulgate rules and regulations which have been approved by the Secretary
and which shall be adequate to assure the effective conduct of the State's
vending facility program (including State licensing agency procedures
covering the conduct of full evidentiary hearings) and the operation of each
vending facility in accordance with this part and with the requirements and
conditions of each department, agency, and instrumentality in control of the
maintenance, operation, and protection of Federal property, including the
conditions contained in permits, as well as in all applicable Federal and
State laws, local ordinances and regulations.
(b) Such rules and regulations and
amendments thereto shall be filed or published in accordance with State law.
(c) Such rules and regulations shall
include provisions adequate to insure that the right, title to, and interest
in each vending facility used in the program and the stock will be vested in
accordance with the laws of the State in only the following:
(1) The State licensing agency; or
(2) Its nominee, subject to the
conditions specified in Sec. 395.15(b); or
(3) The vendor, in accordance with
State determination.
(d) Notwithstanding the provisions of
paragraph (c) of this section, any right, title to, or interest which existed
on June 30, 1955, in stock may continue so long as:
(1) The interest is in the stock of a
facility established under the program prior to July 1, 1955, and
(2) The vendor was licensed in the
program (whether or not for the operation of the vending facility in
question) prior to July 1, 1955.
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Sec. 395.5 Approval of application
for designation as State licensing agency.
When the Secretary determines that an
application submitted by a State vocational rehabilitation agency under Sec.
395.2, and the accompanying rules and regulations indicate a plan of program
operations which will stimulate and enlarge the economic opportunities for
the blind, and which will meet all other requirements of this part, he shall
approve the application and shall designate the applying State vocational
rehabilitation agency as the State licensing agency.
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Sec. 395.6 Vendor ownership of
vending facilities.
(a) If a State licensing agency
determines under Sec. 395.4(c) that the right, title to, and interest in a
vending facility may be vested in the blind vendor, the State licensing
agency shall enter into a written agreement with each vendor who is to have
such ownership. Such agreement shall contain in full the terms and conditions
governing such ownership in accordance with criteria in the State licensing
agency's regulations, this part, and the terms and conditions of the permit.
The criteria established to govern the determination that the title may be so
vested shall contain reasonable provisions to enable a vendor to purchase
vending facility equipment and to ensure that no individual will be denied
the opportunity to become a vendor because of his inability to purchase the
vending facility equipment or the initial stock;
(b) The State licensing agency shall
establish in writing and maintain policies determining whether the
vendor-owner or the State licensing agency shall be required to maintain the
vending facility in good repair and in an attractive condition and replace
worn-out or obsolete equipment; and if the former, such policies shall
provide that upon such vendor-owner's failure to do so, the State licensing
agency may make the necessary maintenance, replacement, or repairs and make
equitable arrangements for reimbursement;
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(c) Where the vendor owns such equipment and is required to maintain the
vending facility in good repair and in an attractive condition and replace
worn-out or obsolete equipment, or agrees to purchase additional new
equipment, service charges for such purposes shall be equitably reduced and
the method for determining such amount shall be established by the State
licensing agency in writing;
(d) Where the vendor owns such equipment, the State licensing agency shall
retain a first option to repurchase such equipment, and in the event the
vendor-owner dies, or for any other reason ceases to be a licensee, or
transfers to another vending facility, ownership of such equipment shall
become vested in the State licensing agency for transfer to a successor
licensee subject to an obligation on its part to pay to such vendor-owner or
his estate, the fair value therein; and
(e) The vendor-owner, his personal representative or next of kin shall be
entitled to an opportunity for a full evidentiary hearing with respect to the
determination of the amount to be paid by the State licensing agency for a
vendor's ownership in the equipment. When the vendor-owner is dissatisfied
with any decision rendered as a result of such hearing, he may file a
complaint with the Secretary under Sec. 395.13 to request the convening of an
ad hoc arbitration panel.
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Sec. 395.7 The issuance and
conditions of licenses.
(a) The State licensing agency shall
establish in writing and maintain objective criteria for licensing qualified
applicants, including a provision for giving preference to blind persons who
are in need of employment. Such criteria shall also include provisions to
assure that licenses will be issued only to persons who are determined by the
State licensing agency to be:
(1) Blind;
(2) Citizens of the United States; and
(3) Certified by the State vocational
rehabilitation agency as qualified to operate a vending facility.
(b) The State licensing agency shall
provide for the issuance of licenses for an indefinite period but subject to
suspension or termination if, after affording the vendor an opportunity for a
full evidentiary hearing, the State licensing agency finds that the vending
facility is not being operated in accordance with its rules and regulations,
the terms and conditions of the permit, and the terms and conditions of the
agreement with the vendor.
(c) The State licensing agency shall
further establish in writing and maintain policies which have been developed
with the active participation of the State Committee of Blind Vendors and
which govern the duties, supervision, transfer, promotion, and financial
participation of the vendors. The State licensing agency shall also establish
procedures to assure that such policies have been explained to each blind
vendor.
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Sec. 395.8 Distribution and use of
income from vending machines on Federal property.
(a) Vending machine income from
vending machines on Federal property which has been disbursed to the State
licensing agency by a property managing department, agency, or
instrumentality of the United States under Sec. 395.32 shall accrue to each
blind vendor operating a vending facility on such Federal property in each
State in an amount not to exceed the average net income of the total number
of blind vendors within such State, as determined each fiscal year on the
basis of each prior year's operation, except that vending machine income
shall not accrue to any blind vendor in any amount exceeding the average net
income of the total number of blind vendors in the United States. No blind
vendor shall receive less vending machine income than he was receiving during
the calendar year prior to January 1, 1974, as a direct result of any
limitation imposed on such income under this paragraph. No limitation shall
be imposed on income from vending machines, combined to create a vending
facility, when such facility is maintained, serviced, or operated by a blind
vendor. Vending machine income disbursed by a property managing department,
agency or instrumentality of the United States to a State licensing agency in
excess of the amounts eligible to accrue to blind vendors in accordance with
this paragraph shall be retained by the appropriate State licensing agency.
(b) The State licensing agency shall
disburse vending machine income to blind vendors within the State on at least
a quarterly basis.
(c) Vending machine income which is
retained under paragraph (a) of this section by a State licensing agency
shall be used by such agency for the establishment and maintenance of
retirement or pension plans, for health insurance contributions, and for the
provision of paid sick leave and vacation time for blind vendors in such
State, if it is so determined by a majority vote of blind vendors licensed by
the State licensing agency, after such agency has provided to each such
vendor information on all matters relevant to such purposes. Any vending
machine income not necessary for such purposes shall be used by the State
licensing agency for the maintenance and replacement of equipment, the
purchase of new equipment, management services, and assuring a fair minimum
return to vendors. Any assessment charged to blind vendors by a State
licensing agency shall be reduced pro rata in an amount equal to the total of
such remaining vending machine income.
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Sec. 395.9 The setting aside of funds
by the State licensing agency.
(a) The State licensing agency shall
establish in writing the extent to which funds are to be set aside or caused
to be set aside from the net proceeds of the operation of the vending
facilities and, to the extent applicable, from vending machine income under
Sec. 395.8(c) in an amount determined by the Secretary to be reasonable.
(b) Funds may be set aside under
paragraph (a) of this section only for the purposes of:
(1) Maintenance and replacement of
equipment;
(2) The purchase of new equipment;
(3) Management services;
(4) Assuring a fair minimum of return
to vendors; or
(5) The establishment and maintenance
of retirement or pension funds, health insurance contributions, and provision
for paid sick leave and vacation time, if it is so determined by a majority
vote of blind vendors licensed by the State licensing agency, after such
agency provides to each such vendor information on all matters relevant to
such proposed purposes.
(c) The State licensing agency shall
further set out the method of determining the charge for each of the above
purposes listed in paragraph (b) of this section, which will be determined
with the active participation of the State Committee of Blind Vendors and
which will be designed to prevent, so far as is practicable, a greater charge
for any purpose than is reasonably required for that purpose. The State
licensing agency shall maintain adequate records to support the
reasonableness of the charges for each of the purposes listed in this
section, including any reserves necessary to assure that such purposes can be
achieved on a consistent basis.
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Sec. 395.10 The maintenance and
replacement of vending facility equipment.
The State licensing agency shall maintain
(or cause to be maintained) all vending facility equipment in good repair and
in an attractive condition and shall replace or cause to be replaced worn-out
and obsolete equipment as required to ensure the continued successful
operation of the facility.
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Sec. 395.11 Training program for
blind individuals.
The State licensing agency shall
ensure that effective programs of vocational and other training services,
including personal and vocational adjustment, books, tools, and other
training materials, shall be provided to blind individuals as vocational
rehabilitation services under the Rehabilitation Act of 1973 (Pub. L.
93-112), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L.
93-516). Such programs shall include on-the-job training in all aspects of
vending facility operation for blind persons with the capacity to operate a
vending facility, and upward mobility training (including further education
and additional training or retraining for improved work opportunities) for
all blind licensees. The State licensing agency shall further ensure that
post-employment services shall be provided to blind vendors as vocational
rehabilitation services as necessary to assure that the maximum vocational
potential of such vendors is achieved and suitable employment is maintained
within the State's vending facility program.
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Sec. 395.12 Access to program and
financial information.
Each blind vendor under this part
shall be provided access to all financial data of the State licensing agency
relevant to the operation of the State vending facility program, including
quarterly and annual financial reports, provided that such disclosure does
not violate applicable Federal or State laws pertaining to the disclosure of
confidential information. Insofar as practicable, such data shall be made
available in braille or recorded tape. At the request of a blind vendor State
licensing agency staff shall arrange a convenient time to assist in the
interpretation of such financial data.
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Sec. 395.13 Evidentiary hearings and
arbitration of vendor complaints.
(a) The State licensing agency shall
specify in writing and maintain procedures whereby such agency affords an
opportunity for a full evidentiary hearing to each blind vendor (which
procedures shall also apply to cases under Sec. 395.6(e)) dissatisfied with
any State licensing agency action arising from the operation or
administration of the vending facility program. When such blind vendor is
dissatisfied with any action taken or decision rendered as a result of such
hearing, he may file a complaint with the Secretary. Such complaint shall be
accompanied by all available supporting documents, including a statement of
the decision which was rendered and the reasons in support thereof.
(b) The filing of a complaint under
paragraph (a) of this section with either the State licensing agency or the
Secretary shall indicate consent by the blind vendor for the release of such
information as is necessary for the conduct of a full evidentiary hearing or
the hearing of an ad hoc arbitration panel.
(c) Upon receipt of a complaint filed
by a blind vendor which meets the requirements established by the Secretary,
the Secretary shall convene an ad hoc arbitration panel which shall, in
accordance with the provisions of 5 U.S.C. chapter 5, subchapter II, give
notice, conduct a hearing, and render its decision which shall be final and
binding on the parties except that such decision shall be subject to appeal
and review as a final agency action for purposes of the provisions of 5
U.S.C. chapter 7.
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(d) The arbitration panel convened by the Secretary to hear the grievances
of blind vendors shall be composed of three members appointed as follows:
(1) One individual designated by the State licensing agency;
(2) One individual designated by the blind vendor; and
(3) One individual not employed by the State licensing agency or, where
appropriate, its parent agency, who shall be jointly designated by the other
members of the panel and who shall serve as chairman of the panel.
(e) If either the State licensing agency or the blind vendor fails to
designate a member of an arbitration panel, the Secretary shall designate
such member on behalf of such party.
(f) The decisions of an arbitration panel convened by the Secretary under
this section shall be matters of public record and shall be published in the
Federal Register.
(g) The Secretary shall pay all reasonable costs of arbitration under this
section in accordance with a schedule of fees and expenses which shall be
published in the Federal Register.
(h) The provisions of this section shall not require the participation of
grantors of permits for the operation of vending facilities on property other
than Federal property.
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Sec. 395.14 The State Committee of
Blind Vendors.
(a) The State licensing agency shall
provide for the biennial election of a State Committee of Blind Vendors
which, to the extent possible, shall be fully representative of all blind
vendors in the State program on the basis of such factors as geography and
vending facility type with a goal of providing for proportional
representation of blind vendors on Federal property and blind vendors on
other property. Participation by any blind vendor in any election shall not
be conditioned upon the payment of dues or any other fees.
(b) The State Committee of Blind
Vendors shall:
(1) Actively participate with the
State licensing agency in major administrative decisions and policy and
program development decisions affecting the overall administration of the
State's vending facility program;
(2) Receive and transmit to the State
licensing agency grievances at the request of blind vendors and serve as
advocates for such vendors in connection with such grievances;
(3) Actively participate with the
State licensing agency in the development and administration of a State
system for the transfer and promotion of blind vendors;
(4) Actively participate with the
State licensing agency in the development of training and retraining programs
for blind vendors; and
(5) Sponsor, with the assistance of
the State licensing agency, meetings and instructional conferences for blind
vendors within the State.
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Sec. 395.15 Use of nominee
agreements.
(a) The State licensing agency may
enter into an agreement whereby another agency or organization undertakes to
furnish services to blind vendors. Such agreement shall be in writing and
shall contain provisions which:
(1) Clearly insure the retention by
the State licensing agency of full responsibility for the administration and
operation of all phases of the program;
(2) Specify the type and extent of
the services to be provided under such agreement;
(3) Provide that no set-aside charges
will be collected from blind vendors except as specified in such agreement;
(4) Specify that no nominee will be
allowed to exercise any function with respect to funds for the purchase of
new equipment or for assuring a fair minimum of return to vendors, except to
collect and hold solely for disposition in accordance with the order of the
State licensing agency any charges authorized for those purposes by the
licensing agency; and
(5) Specify that only the State
licensing agency shall have control with respect to selection, placement,
transfer, financial participation and termination of the vendors, and the
preservation, utilization, and disposition of program assets.
(b) If the State licensing agency
permits any agency or organization other than a vendor to hold any right,
title to, or interest in vending facilities or stock, the arrangement shall
be one permitted by State law and shall specify in writing that all such
right, title to, or interest is held by such agency or organization as the
nominee of the State licensing agency for program purposes and subject to the
paramount right of the State licensing agency to direct and control the use,
transfer, and disposition of such vending facilities or stock.
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Sec. 395.16 Permit for the
establishment of vending facilities.
Prior to the establishment of each
vending facility, other than a cafeteria, the State licensing agency shall
submit an application for a permit setting forth the location, the amount of
space necessary for the operation of the vending facility; the type of
facility and equipment, the number, location and type of vending machines and
other terms and conditions desired to be included in the permit. Such
application shall be submitted for the approval of the head of the Federal
property managing department, agency, or instrumentality. When an application
is not approved, the head of the Federal property managing department,
agency, or instrumentality shall advise the State licensing agency in writing
and shall indicate the reasons for the disapproval.
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Sec. 395.17 Suspension of
designation as State licensing agency.
(a) If the Secretary has reason to
believe that, in the administration of the program, there is a failure on the
part of any State licensing agency to comply substantially with the Act and
this part, he shall so inform such agency in writing, setting forth, in
detail, the areas in which there is such failure and giving it a reasonable
opportunity to comply.
(b) If, after the lapse of a
reasonable time, the Secretary is of the opinion that such failure to comply
still continues and that the State licensing agency is not taking the
necessary steps to comply, he shall offer to such agency, by reasonable
notice in writing thereto and to the chief executive of the State, an
opportunity for a hearing before the Secretary (or person designated by the
Secretary) to determine whether there is a failure on the part of such agency
to comply substantially with the provisions of the Act and of this part.
(c) If it is thereupon determined
that there is a failure on the part of such agency to comply substantially
with the Act and this part, appropriate written notice shall be given to such
agency and to the chief executive of the State suspending such agency's
designation as licensing agency effective 90 days from the date of such
notice. A copy of such written notice shall be given to each department,
agency, or instrumentality of the United States responsible for the
maintenance, operation, and protection of Federal property on which vending
machines subject to the requirements of Sec. 395.32 are located in the State.
Upon the suspension of such designation, vending machine income from vending
machines on Federal property due for accrual to the State licensing agency under
Sec. 395.32 shall be retained in escrow by such department, agency, or
instrumentality of the United States responsible for the maintenance,
operation and protection of the Federal property on which such vending
machines are located, pending redesignation of the State licensing agency or
rescission of the suspension under paragraph (e) of this section.
(d) If, before the expiration of such
90 days, the Secretary (or person designated by him) determines that the
State licensing agency is taking the necessary steps to comply, he may
postpone the effective date of such suspension for such time as he deems
necessary in the best interest of the program.
(e) If, prior to the effective date
of such suspension, the Secretary (or person designated by him) finds that
there is no longer a failure on the part of the State licensing agency to
comply substantially with the provisions of the Act and this part, he shall
so notify the agency, the chief executive of the State, and each Federal
department, agency, or instrumentality required to place funds in escrow
under paragraph (c) of this section, in which event the suspension of the
designation shall not become effective and the requirement to place funds in
escrow shall be terminated.
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Subpart C_Federal Property Management
Sec. 395.30 The location and
operation of vending facilities for blind vendors on Federal property.
(a) Each department, agency, or
instrumentality of the United States in control of the maintenance,
operation, and protection of Federal property shall take all steps necessary
to assure that, wherever feasible, in light of appropriate space and
potential patronage, one or more vending facilities for operation by blind
licensees shall be located on all Federal property Provided that the location
or operation of such facility or facilities would not adversely affect the
interests of the United States. Blind persons licensed by State licensing
agencies shall be given priority in the operation of vending facilities on
any Federal property.
(b) Any limitation on the location or
operation of a vending facility for blind vendors by a department, agency or
instrumentality of the United States based on a finding that such location or
operation or type of location or operation would adversely affect the
interests of the United States shall be fully justified in writing to the
Secretary who shall determine whether such limitation is warranted. A
determination made by the Secretary concerning such limitation shall be
binding on any department, agency, or instrumentality of the United States
affected by such determination. The Secretary shall publish such
determination in the Federal Register along with supporting documents
directly relating to the determination.
(c) Priority in the operation of
vending facilities in areas administered by the National Park Service or the
National Aeronautics and Space Administration shall be given to blind
vendors. Priority in the awarding of contracts for the operation of
concessions in such areas when such concessions provide accommodations,
facilities, and services of a scope or of a character not generally available
in vending facilities operated by blind vendors shall be given in accordance
with the provisions of the Concession Policy Act (Pub. L. 98-249, 16 U.S.C.
1) or the National Aeronautics and Space Act of 1958, as amended (Pub. L.
85-568, 42 U.S.C. 2473). The provisions of this part shall not apply when all
accommodations, facilities, or services in such areas are operated by a
single responsible concessioner.
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Sec. 395.31 Acquisition and
occupation of Federal property.
(a) Effective January 2, 1975, no
department, agency, or instrumentality of the United States shall undertake
to acquire by ownership, rent, or lease, or to otherwise occupy, in whole or
in part, any building unless it is determined that such building includes a
satisfactory site or sites for the location and operation of a vending
facility by a blind vendor. In those cases where a purchase contract, an
agreement to lease, or other similar commitment was entered into prior to
January 2, 1975, the provisions of this paragraph shall not apply.
(b) Effective January 2, 1975, no
department, agency, or instrumentality of the United States, shall undertake
to occupy, in whole or in part, any building which is to be constructed,
substantially altered, or renovated, or in the case of a building which is
occupied on January 2, 1975 by a department, agency, or instrumentality of
the United States, no such department, agency, or instrumentality shall
undertake to substantially alter or renovate such building, unless it is
determined that the design for such construction, substantial alteration, or
renovation includes a satisfactory site or sites for the location and
operation of a vending facility by a blind vendor. In those cases where a
design contract or other similar commitment was entered into prior to January
2, 1975, the provisions of this paragraph shall not apply. For purposes of
this paragraph, substantial alteration or renovation of a building means a
permanent material change in the floor area of such building which would
render such building appropriate for the location and operation of a vending
facility by a blind vendor.
(c) The determination that a building
contains a satisfactory site or sites under paragraph (a) or (b) of this
section shall be made after consultation between the State licensing agency
and the head of the department, agency, or instrumentality of the United
States which is planning to acquire or otherwise occupy such building. In
order to make such determination, effective on the publication date of this
part each such department, agency, or instrumentality shall provide to the
appropriate State licensing agency written notice of its intention to acquire
or otherwise occupy such building. Such written notice shall be by certified
or registered mail with return receipt and shall be provided as early as
practicable but no later than 60 days prior to such intended action. The
written notice shall indicate that a satisfactory site or sites for the
location and operation of a vending facility by blind persons is included in
the plans for the building to be acquired or otherwise occupied and shall
further assure that the State licensing agency shall be afforded the
opportunity to determine whether such building includes a satisfactory site
or sites for a vending facility. The written notice shall further assure that
the State licensing agency, subject to the approval of the head of the
Federal property managing department, agency, or instrumentality, shall be
offered the opportunity to select the location and type of vending facility
to be operated by a blind vendor prior to the completion of the final space
layout of the building. The receipt of such written notice shall be
acknowledged in writing promptly by the State licensing agency but no later
than within 30 days and the State licensing agency shall indicate at that
time whether it is interested in establishing a vending facility. A copy of
the written notice to the State licensing agency and the State licensing
agency's acknowledgement shall be provided to the Secretary.
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(d) When, after a written notice has been provided under paragraph (c) of
this section, the State licensing agency determines that the number of
persons using the Federal property is or will be insufficient to support a
vending facility, and the Secretary concurs with such determination, the
provisions of paragraphs (a) and (b) of this section shall not apply. The
provisions of paragraphs (a) and (b) of this section shall also not apply
when fewer than 100 Federal Government employees are or will be located
during normal working hours in the building to be acquired or otherwise
occupied or when such building contains less than 15,000 square feet of
interior space to be utilized for Federal Government purposes in the case of
buildings in which services are to be provided to the public.
(e) The operation of a vending facility established under pre- existing
arrangements shall not be affected by the provisions of this section. The
provisions of this section shall further not preclude future arrangements
under which vending facilities to be operated by blind vendors may be
established in buildings of a size or with an employee population less than
that specified in paragraph (d) of this section: Provided, That both the
State licensing agency and the Federal property managing department, agency
or instrumentality concur in such establishment.
(f) Each department, agency, and instrumentality of the United States,
when leasing property in privately owned buildings, shall make every effort
to lease property capable of accommodating a vending facility. When, however,
such department, agency, or instrumentality is leasing part of a privately
owned building in which prior to the execution of the lease, the lessor or any
of his tenants had in operation or had entered into a contract for the
operation of a restaurant or other food facility in a part of the building
not included in such lease and the operation of a vending facility by a blind
vendor would be in proximate and substantial direct competition with such
restaurant or other food facility, the provisions of paragraphs (a), (b), and
(c) of this section shall not apply.
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Sec. 395.32 Collection and
distribution of vending machine income from vending machines on Federal
property.
(a) The on-site official responsible
for the Federal property of each property managing department, agency, or
instrumentality of the United States, in accordance with established
procedures of such department, agency, or instrumentality, shall be
responsible for the collection of, and accounting for, vending machine income
from vending machines on Federal property under his control and shall
otherwise ensure compliance with the provisions of this section.
(b) Effective January 2, 1975, 100
per centum of all vending machine income from vending machines on Federal
property which are in direct competition with a vending facility operated by
a blind vendor shall accure to the State licensing agency which shall disburse
such income to such blind vendor operating such vending facility on such
property provided that the total amount of such income accruing to such blind
vendor does not exceed the maximum amount determined under Sec.395.8(a). In
the event that there is income from such vending machines in excess of the
maximum amount which may be disbursed to the blind vendor under Sec.
395.8(a), such additional income shall accrue to the State licensing agency
for purposes determined in accordance with Sec. 395.8(c).
(c) Effective January 2, 1975, 50 per
centum of all vending machine income from vending machines on Federal
property which are not in direct competition with a vending facility operated
by a blind vendor shall accrue to the State licensing agency which shall
disburse such income to the blind vendor operating such vending facility on
such property. In the event that there is no blind vendor, such income shall
accrue to the State licensing agency, except as indicated under paragraph (d)
of this section. The total amount of such income disbursed to such blind
vendor shall not exceed the maximum amount determined under Sec. 395.8(a). In
the event that there is income from such vending machines in excess of the
maximum amount which may accrue to the blind vendor under Sec. 395.8(a), such
additional income shall accrue to the State licensing agency for purposes
determined in accordance with Sec. 395.8(c).
(d) Effective January 2, 1975, 30 per
centum of all vending machine income from vending machines, which are not in
direct competition with a vending facility operated by a blind vendor and
which are on Federal property at which at least 50 per centum of the total
hours worked on the premises occurs during a period other than normal working
hours, shall accrue to the State licensing agency which shall disburse such
income to the blind vendor operating a vending facility on such property. In
the event that there is no blind vendor on such property, such income shall
accrue to the State licensing agency. The total amount of such income
disbursed to such blind vendor shall not exceed the maximum amount determined
under Sec. 395.8(a). In the event that there is income from such vending
machines in excess of the maximum amount which may be disbursed to the blind
vendor under Sec. 395.8(a), such additional income shall accrue to the State
licensing agency for purposes determined in accordance with Sec. 395.8(c).
(e) The determination that a vending
machine on Federal property is in direct competition with a vending facility
operated by a blind vendor shall be the responsibility of the on-site
official responsible for the Federal property of each property managing
department, agency or instrumentality of the United States, subject to the
concurrence of the State licensing agency.
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(f) In the case of vending machine income which, prior to the effective
date of this part, has been disbursed to a blind vendor by a property
managing department, agency, or instrumentality from proceeds which accrued
from operations subsequent to January 2, 1975, pursuant to agreements in
effect prior to such time, such income may be deducted, at the discretion of
such property managing department, agency or instrumentality, from vending
machine income due to the State licensing agency under paragraphs (b), (c),
or (d) of this section.
(g) The collection of vending machine income and its disbursement to the
appropriate State licensing agency shall be conducted on at least a quarterly
basis.
(h) All arrangements pertaining to the operation of vending machines on
Federal property not covered by contract with, or by permits issued to, State
licensing agencies, shall be renegotiated upon the expiration of the existing
contract or other arrangement for consistency with the provisions of this
section.
(i) The provisions of this section shall not apply to income from vending
machines within operated retail sales outlets under the control of post
exchange or ships' stores systems authorized under title 10 U.S.C.; to income
from vending machines operated by the Veterans Canteen Service; or to income
from vending machines not in direct competition with a blind vending facility
at individual locations, installations, or facilities on Federal property the
total of which at such individual locations, installations, or facilities
does not exceed $3,000 annually.
(j) The provisions of this section shall not operate to preclude
pre-existing or future arrangements, or regulations of departments, agencies,
or instrumentalities of the United States, under which blind vendors or State
licensing agencies may:
(1) Receive a greater percentage or amount of vending machine income than
that specified in paragraphs (b), (c), and (d) of this section, or
(2) Receive vending machine income from individual locations,
installations, or facilities on Federal property the total of which at such
individual locations, installations, or facilities does not exceed $3,000
annually.
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Sec. 395.33 Operation of cafeterias
by blind vendors.
(a) Priority in the operation of
cafeterias by blind vendors on Federal property shall be afforded when the
Secretary determines, on an individual basis, and after consultation with the
appropriate property managing department, agency, or instrumentality, that
such operation can be provided at a reasonable cost, with food of a high
quality comparable to that currently provided employees, whether by contract
or otherwise. Such operation shall be expected to provide maximum employment
opportunities to blind vendors to the greatest extent possible.
(b) In order to establish the ability
of blind vendors to operate a cafeteria in such a manner as to provide food
service at comparable cost and of comparable high quality as that available
from other providers of cafeteria services, the appropriate State licensing
agency shall be invited to respond to solicitations for offers when a
cafeteria contract is contemplated by the appropriate property managing
department, agency, or instrumentality. Such solicitations for offers shall
establish criteria under which all responses will be judged. Such criteria
may include sanitation practices, personnel, staffing, menu pricing and
portion sizes, menu variety, budget and accounting practices. If the proposal
received from the State licensing agency is judged to be within a competitive
range and has been ranked among those proposals which have a reasonable
chance of being selected for final award, the property managing department,
agency, or instrumentality shall consult with the Secretary as required under
paragraph (a) of this section. If the State licensing agency is dissatisfied
with an action taken relative to its proposal, it may file a complaint with
the Secretary under the provisions of Sec. 395.37.
(c) All contracts or other existing
arrangements pertaining to the operation of cafeterias on Federal property
not covered by contract with, or by permits issued to, State licensing
agencies shall be renegotiated subsequent to the effective date of this part
on or before the expiration of such contracts or other arrangements pursuant
to the provisions of this section.
(d) Notwithstanding the requirements
of paragraphs (a) and (b) of this section, Federal property managing
departments, agencies, and instrumentalities may afford priority in the
operation of cafeterias by blind vendors on Federal property through direct
negotiations with State licensing agencies whenever such department, agency,
or instrumentality determines, on an individual basis, that such operation
can be provided at a reasonable cost, with food of a high quality comparable
to that currently provided employees: Provided, however, That the provisions
of paragraphs (a) and (b) of this section shall apply in the event that the negotiations
authorized by this paragraph do not result in a contract.
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Sec. 395.34 Application for permits.
Applications for permits for the
operation of vending facilities other than cafeterias shall be made in
writing on the appropriate form, and submitted for the review and approval of
the head of the Federal property managing department, agency, or
instrumentality.
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Sec. 395.35 Terms of permit.
Every permit shall describe the
location of the vending facility including any vending machines located on
other than the facility premises and shall be subject to the following
provisions:
(a) The permit shall be issued in the
name of the applicant State licensing agency which shall:
(1) Prescribe such procedures as are
necessary to assure that in the selection of vendors and employees for
vending facilities there shall be no discrimination because of sex, race,
age, creed, color, national origin, physical or mental disability, or
political affiliation; and
(2) Take the necessary action to
assure that vendors do not
discriminate against
any person or persons in furnishing, or by refusing to furnish, to such
person or persons the use of any vending facility, including any and all
services, privileges, accommodations, and activities provided thereby, and
comply with title VI of the Civil Rights Act of 1964 and regulations issued
pursuant thereto.
(b) The permit shall be issued for an
indefinite period of time subject to suspension or termination on the basis
of compliance with agreed upon terms.
(c) The permit shall provide that:
(1) No charge shall be made to the
State licensing agency for normal cleaning, maintenance, and repair of the
building structure in and adjacent to the vending facility areas;
(2) Cleaning necessary for
sanitation, and the maintenance of vending facilities and vending machines in
an orderly condition at all times, and the installation, maintenance, repair,
replacement, servicing, and removal of vending facility equipment shall be
without cost to the department, agency, or instrumentality responsible for
the maintenance of the Federal property; and
(3) Articles sold at vending
facilities operated by blind licensees may consist of newspapers,
periodicals, publications, confections, tobacco products, foods, beverages,
chances for any lottery authorized by State law and conducted by an agency of
a State within such State, and other articles or services as are determined
by the State licensing agency, in consultation with the on-site official
responsible for the Federal property of the property managing department,
agency or instrumentality, to be suitable for a particular location. Such
articles and services may be dispensed automatically or manually and may be
prepared on or off the premises in accordance with all applicable health
laws.
(d) The permit shall further provide
that vending facilities shall be operated in compliance with applicable
health, sanitation, and building codes or ordinances.
(e) The permit shall further provide
that installation, modification, relocation, removal, and renovation of
vending facilities shall be subject to the prior approval and supervision of
the on-site official responsible for the Federal property of the property
managing department, agency, or instrumentality, and the State licensing
agency; that costs of relocations initiated by the State licensing agency
shall be paid by the State licensing agency; and that costs of relocations
initiated by the department, agency, or instrumentality shall be borne by
such department, agency, or instrumentality.
(f) The operation of a cafeteria by a
blind vendor shall be covered by a contractual agreement and not by a permit.
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Sec. 395.36 Enforcement procedures.
(a) The State licensing agency shall
attempt to resolve day-to-day problems pertaining to the operation of the
vending facility in an informal manner with the participation of the blind
vendor and the on- site official responsible for the property of the property
managing department, agency, or instrumentality as necessary.
(b) Unresolved disagreements
concerning the terms of the permit, the Act, or the regulations in this part
and any other unresolved matters shall be reported in writing to the State
licensing agency supervisory personnel by the Regional or other appropriate
official of the Federal property managing department, agency, or
instrumentality in an attempt to resolve the issue.
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Sec. 395.37 Arbitration of State
licensing agency complaints.
(a) Whenever any State licensing
agency determines that any department, agency, or instrumentality of the
United States which has control of the maintenance, operation, and protection
of Federal property is failing to comply with the provisions of the Act or of
this part and all informal attempts to resolve the issues have been
unsuccessful, such licensing agency may file a complaint with the Secretary.
(b) Upon receipt of a complaint filed
under paragraph (a) of this section, the Secretary shall convene an ad hoc
arbitration panel which shall, in accordance with the provisions of 5 U.S.C.
ch. 5, subchapter II, give notice, conduct a hearing and render its decision
which shall be final and binding on the parties except that such decision
shall be subject to appeal and review as a final agency action for purposes
of the provisions of 5 U.S.C. ch. 7. The arbitration panel convened by the
Secretary to hear complaints filed by a State licensing agency shall be
composed of three members appointed as follows:
(1) One individual designated by the
State licensing agency;
(2) One individual designated by the
head of the Federal department, agency, or instrumentality controlling the
Federal property over which the dispute arose; and
(3) One individual, not employed by
the Federal department, agency, or instrumentality controlling the Federal
property over which the dispute arose, who shall be jointly designated by the
other members of the panel and who shall serve as chairman of the panel.
(c) If either the State licensing
agency or the head of the Federal department, agency, or instrumentality
fails to designate a member of an arbitration panel, the Secretary shall
designate such member on behalf of such party.
(d) If the panel finds that the acts
or practices of any department, agency, or instrumentality are in violation
of the Act or of this part, the head of any such department, agency, or
instrumentality (subject to any appeal under paragraph (b) of this section)
shall cause such acts or practices to be terminated promptly and shall take
such other action as may be necessary to carry out the decision of the panel.
(e) The decisions of an arbitration
panel convened by the Secretary under this section shall be matters of public
record and shall be published in the Federal Register.
(f) The Secretary shall pay all
reasonable costs of arbitration under this section in accordance with a
schedule of fees and expenses which shall be published in the Federal
Register.
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Sec. 395.38 Reports.
At the end of each fiscal year, each
property managing department, agency, or instrumentality of the United States
shall report to the Secretary the total number of applications for vending
facility locations received from State licensing agencies, the number
accepted, the number denied, the number still pending, the total amount of
vending machine income collected and the amount of such vending machine
income disbursed to the State licensing agency in each State.
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